R v ZB

[2021] QCA 9

SUPREME COURT OF QUEENSLAND

CITATION:

R v ZB [2021] QCA 9

PARTIES:

R
v
ZB
(applicant)

FILE NO/S:

CA No 71 of 2020
DC No 39 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Maroochydore – Date of Sentence: 28 February 2020 (Cash QC DCJ)

DELIVERED ON:

2 February 2021

DELIVERED AT:

Brisbane

HEARING DATE:

7 September 2020

JUDGES:

Sofronoff P and McMurdo JA and Jackson J

ORDERS:

1.   Grant leave to appeal.

2.   Allow the appeal.

3.   Vary the sentence imposed by ordering that no conviction be recorded.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – PARTICULAR CASES – where the applicant pleaded guilty to one charge of the possession of child exploitation material – where the applicant was sentenced to two years’ probation, requiring that he submit to such medical, psychiatric or psychological treatment as directed by a Corrective Services officer – where the applicant applies for leave to appeal against his sentence, but only as to the recording of the conviction – where a consequence of a conviction being recorded was that the applicant would become a “reportable offender” within the meaning of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) – where there was no finding by the judge that the applicant was at risk of committing an offence against a child – whether the sentencing judge erred in recording a conviction – whether the prospects of rehabilitation offered by probation might be unduly jeopardised by recording a conviction – whether the obligations imposed as a consequence of being a “reportable offender”, in conjunction with the obligations imposed by the probation order, were appropriate – whether the supervision and monitoring required by the probation order negates the need for overlapping and additional monitoring under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) – whether the sentencing judge was so influenced by the abhorrent nature of some of the images, that he characterised the offence as so serious that it outweighed all of the other considerations – whether the sentencing judge’s discretion miscarried

Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 10A, s 14, Schedule 2
Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld), s 5(2), s 6, s 8
Penalties and Sentences Act 1992 (Qld), s 12(2)

R v Bunton[2019] QCA 214, cited

COUNSEL:

S L Kissick for the applicant
S Cupina for the respondent

SOLICITORS:

Ryans Solicitors and Attorneys for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. SOFRONOFF P:  I agree with McMurdo JA’s conclusions but for slightly different reasons.

2. Section 12(1) of the Penalties and Sentences Act 1992 (Qld) confers a discretion upon a sentencing judge to record or not to record a conviction. Section 12(2) provides that, in exercising the discretion, the court “must have regard to all circumstances of the case” including the nature of the…