The King v See

[2023] QCA 226

[2023] QCA 226

COURT OF APPEAL

BOWSKILL CJ
DALTON JA
BODDICE JA

CA No 140 of 2023
DC No 1414 of 2023
DC No 1421 of 2023

THE KING

v

SEE  Applicant

BRISBANE

FRIDAY, 17 NOVEMBER 2023

JUDGMENT

BODDICE JA:  The applicant pleaded guilty to one count of unlawful stalking contravening a court order (domestic violence offence), one count of extortion (domestic violence offence), one count of contravening order about device information from digital device and seven summary charges of contravention of a domestic violence order.  He was sentenced to an effective head sentence of three years, six months imprisonment, to be suspended after serving 896 days imprisonment, for an operational period of four years.  A period of 896 days in pre-sentence custody was declared as time served in respect of the sentence.

It was further ordered, by consent, that two mobile phones be forfeited to the State of Queensland, pursuant to sections 146 and 151 of the Criminal Proceeds Confiscation Act 2002 (Qld), on the grounds that they were tainted property.

The applicant seeks leave to appeal his sentence.  The grounds of that application are that the forfeiture order was excessive, as the mobile phones contained personal information not relevant to the offending.

The forfeiture order was made in circumstances where the applicant’s criminal offending involved stalking his former partner over a period of almost eight months, partly in breach of a domestic violence order, and threatening to disseminate intimate photographs and videos of that former partner; thereby extorting from her further acts of sexual intercourse.  The intimate material was contained on his mobile phones.  Those phones were also used to message his former partner in contravention of the domestic violence order.

Against that background, a forfeiture order was properly to be made in respect of the two mobile phones, on the grounds that they were tainted property.

The application for leave to appeal against sentence is made pursuant to s 668D of the Criminal Code (Qld). That section permits an appeal, with leave of the Court, against the sentence passed on a person’s conviction. However, s 9 of the Criminal Proceeds Confiscation Act expressly provides that an order for forfeiting property is not a sentence.  Accordingly, the application for leave to appeal against sentence is misconceived.

It is conceded by the respondent that there may be an avenue of appeal, pursuant to s 118 of the District Court of Queensland Act 1967 (Qld). However, a pre-condition of any such appeal would be that the leave of the judge who made the order, or another District Court judge, be given pursuant to s 118A, as the order for forfeiture was made by consent. No such leave has been sought or granted in the present case.

In the circumstances, I would order that the application for leave to appeal against sentence be dismissed.

BOWSKILL CJ:  I agree with the reasons given by Justice Boddice and with the order his Honour proposes.

DALTON JA:  I agree.

BOWSKILL CJ:  The order of the Court then is that the application for leave to appeal against sentence is dismissed.