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R v Barany

 

[2018] QCA 137

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

R v Barany [2018] QCA 137

PARTIES:

R
v
BARANY, Simon James
(applicant)

FILE NO/S:

CA No 286 of 2017

DC No 435 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Southport – Date of Sentence: 6 November 2017 (McGinness DCJ)

DELIVERED ON:

26 June 2018

DELIVERED AT:

Brisbane

HEARING DATE:

10 May 2018

JUDGES:

Sofronoff P and Morrison and Philippides JJA

ORDER:

Application for leave to appeal refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCESENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to one count of having made available child pornography material using a carriage service – where the applicant had downloaded a folder containing 130 images, some of which were of children aged between six and 10 years old in nude, sexualised poses – where the applicant had downloaded the folder via the software BitTorrent – where the downloading of images via BitTorrent involves the simultaneous uploading of those images to other users on the network – where the applicant was aware of the operation of BitTorrent – where the applicant was sentenced to nine months imprisonment, to be released immediately upon entering into a recognizance in the sum of $1,000 on the condition that he be of good behaviour – where the applicant operates a Neoprene wetsuit manufacturing business that requires him to travel to China – where the applicant travels to visit family in Hungary every year and has a daughter who hopes to study in the United States – where the applicant fears that a recorded conviction will jeopardise his ability to travel for business and leisure – where the applicant submits that no conviction should have been recorded, per s 19B(1) of the Crimes Act 1914 (Cth) – whether the effect of a recorded conviction on the applicant’s travel is such as to engage the discretion under s 19B(1), such that the learned sentencing judge’s decision to record a conviction rendered the sentence manifestly excessive

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant submits that his instructions to his solicitor to submit to the sentencing judge that no conviction should be recorded were not carried out – where the decision not to make a submission that no conviction should be recorded was a decision made for forensic purposes – whether, if nonetheless the decision was not a forensic decision, a conviction might not have been recorded had the submission been made, such that a miscarriage of justice was occasioned by the applicant’s counsel’s omission

Crimes Act 1914 (Cth), s 19B(1)

Criminal Code (Cth), s 474.19(1)

Nudd v The Queen (2006) 80 ALJR 614; [2006] HCA 9, cited

TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46, cited

Tsiakas v The Queen [2015] NSWCCA 187, cited

COUNSEL:

A J Edwards for the applicant

D A Holliday for the respondent

SOLICITORS:

Jacobson Mahony Lawyers for the applicant

Director of Public Prosecutions (Commonwealth) for the respondent

  1. [1]
    SOFRONOFF P:  The applicant was charged with having made available child pornography material using a carriage service.  He pleaded guilty and was sentenced to nine months’ imprisonment.  He was ordered to be released immediately upon entering into a recognizance in the sum of $1,000 conditioned that he be of good behaviour for a period of two years.  He seeks leave to appeal against that sentence on two grounds.  The first is that the sentence imposed was manifestly excessive.  The second is that there was a miscarriage of justice because the sentencing judge had proceeded on incomplete information, there being further information available which had not been put before her by the applicant’s counsel but which, it is submitted, would have had a bearing on the exercise of the sentencing discretion.
  2. [2]
    “BitTorrent” is an internet network that allows material on a person’s computer to be uploaded to the internet and accessed by other users.  The sharing of material in this way is automatic although the placing of the necessary software on a person’s computer to allow this is by the voluntary act of a person who wishes to engage in such sharing.  Police identified a computer using “BitTorrent” to share child pornography and traced it to the applicant.
  3. [3]
    The pornography was found in a folder on the applicant’s computer titled “Lsbestof”.  This folder contained 130 images.  Fifteen of these were of female children aged between six and 10 years old.  It is enough to refer to the description of just one of these in the agreed statement of facts tendered at sentence:

“Image titled ‘Ism 04-02-038.jpg’ depicts a young female child, approximately 5 to 7 years of age naked.  The child is lying on her back on an inflatable pool toy, with her legs spread.  Her vagina is exposed and is the focus of the image.”

  1. [4]
    Authorities engaged in investigating offences relating to child pornography have adopted a system of grading child pornography according to the level of depravity of the images.  The images found on the applicant’s computer were said to be in the lowest category.
  2. [5]
    When police confronted the applicant, he was asked whether he knew why police had come.  He replied:

“I’ve been looking at some images of young girls … it’s nothing too bad but I guess it makes me a guilty person.”

  1. [6]
    He admitted that he used “BitTorrent” to search for child pornography.  He was asked what he searched for and said:

“Lsm: 10 years old – I just find them attractive at that age.”

  1. [7]
    The applicant showed that he knew how “BitTorrent” works.  He said that he did not usually allow uploads to be made from his computer.  He told police that he prevented some uploads by removing files from the relevant folder.  He said that he kept his uploads to a minimum.  However, he admitted that it was possible that he had made images available.  It will be noticed that the charge against the applicant was not his possession of the relevant images but his making them available to others.
  2. [8]
    The applicant’s computer had pieces of software called “TrueCrypt” and “CCleaner” installed.  “TrueCrypt” is used to create an encrypted virtual disk on a computer’s hard disk.  The applicant said that he did not know what the program did.  “CCleaner” is a program that cleans files permanently from a computer.
  3. [9]
    The applicant led evidence on this application.  According to his affidavit, he had engaged a firm of solicitors to act for him.  The applicant says that he had a conference with his solicitor, who was the principal of the firm, and asked his advice about the consequences of pleading guilty.  He sought to impress upon his solicitor “the importance of obtaining no conviction”.  His solicitor advised him that the likely outcome would be a suspended sentence.  The matter was then in the Magistrates Court and his solicitor advised him that it should be transferred to the District Court.  The solicitor was of the opinion that there was a better chance of “getting no conviction” in the District Court.
  4. [10]
    At a subsequent conference, which was to be the last such conference before the sentence hearing, the importance of no conviction being recorded was discussed again.  The prospects of such an order being made were discussed.  The applicant’s solicitor told him to write out an outline about how a conviction would affect his future.  The solicitor also asked the applicant’s wife, who was present at the conference, to prepare a personal statement about the effect of this charge upon their life and to explain why she was supporting her husband.  The solicitor emphasised that these statements would be important and would have a strong bearing on the outcome of the case.
  5. [11]
    The solicitor expressed his opinion that the applicant was likely to receive a suspended sentence and that there was, according to the applicant’s recollection, “still a small chance to have no conviction recorded”.
  6. [12]
    In accordance with what he had been told to do, the applicant prepared a statement describing the effect a recorded conviction would have on his life.  His wife also prepared a statement.  Before turning to the contents of these statements it is necessary to refer to two reports of psychologists that were tendered at the hearing.  One of these was a lengthy, detailed and carefully written report from Suzanne Riggs, a clinical psychologist.  Ms Riggs conducted several interviews with the applicant and his wife, both together and separately.  She administered several psychological assessments.  She took a detailed history from the applicant.  Any summary I make of her report would not do real justice to its full terms; however, I would summarise her conclusions as follows.
  7. [13]
    She considered the applicant to be entirely candid about what he had done.  He had insight into the significance of his behaviour.  His proclivity to look at material of this kind did not extend to any risk that he would seek to engage in any actual sexual activity with children.  He told her that he had been viewing adult pornography from a very young age.  At Ms Riggs’ suggestion he read some literature on the subject about the effect of pornography upon those who view it and was now motivated to stop that habit.  He has said, and there is no reason to doubt, that since these charges were laid he has ceased accessing pornography of any kind.
  8. [14]
    Ms Riggs found that the applicant was suffering from “Major depression with feelings of sadness, a loss of interest in normal activities and a loss of sense of pleasure in things he had enjoyed in the past”.  This condition pre-dated the bringing of the charges.  Ms Riggs described his depression as “extremely severe”.  By her clinical judgment and by means of the application of various instruments, Ms Riggs concluded that the applicant was highly unlikely to re-offend.
  9. [15]
    A second report was also tendered.  Mr Damien Thomas is also a psychologist.  His report can be summarised as one that confirms the significant conclusions reached by Ms Riggs.
  10. [16]
    In a statement that the applicant had prepared he explained that after the charge had been laid there arose a real risk that the Department of Child Safety would remove his children from the family home or, at least, prevent the applicant residing there.  In fact, the applicant had to leave his home for some time for this reason.  He engaged in suicidal ideation.  At the urging of his psychologists he gave up drinking alcohol and concentrated on overcoming his depression.
  11. [17]
    The applicant explained that a recorded conviction would hamper his ability to run the family business.  The applicant’s father had begun the business making wetsuits from Neoprene.  That material is not manufactured in Australia.  The applicant said in his statement:

“I have to resource material and keep business relations alive by potential visits to our suppliers.”

  1. [18]
    The applicant’s wife’s parents live in Hungary.  The family travels there every year.  One of the applicant’s children is an elite athlete.  She hopes to obtain a scholarship to attend a university in the United States.  The applicant fears that a recorded conviction would prevent him from visiting his daughter or Hungary.
  2. [19]
    The applicant’s wife’s statement confirms, from her own perspective, Ms Riggs’s findings.  She had recognised some time ago that the applicant was suffering mentally and saw his severe depression as “going down on a self-destructive road”.  She is entirely realistic about the nature of his offending but, nevertheless, has made a judgment about her husband’s essential good character, a judgment she has explained in rational and clear terms.  She has supported him and will continue to support him in dealing with his troubles.
  3. [20]
    On the morning of the sentence hearing, and one hour before the matter was to be heard, the applicant’s solicitor telephoned him to say that he himself would be unable to attend.  He said an associate of his would appear instead.  That associate arrived and the applicant met him for the first time in the courthouse.  It appeared to the applicant that his new solicitor was still preparing the matter just before going in to represent him.  This perception was not challenged by any cross-examination and it can be taken that this was a view that the applicant genuinely held.  However, it is at odds with the existence of a two page typed outline of submissions over the signature of the applicant’s new solicitor which shows that he had been properly prepared before coming to court and that he thoroughly understood the circumstances surrounding the offending.  However, for reasons which will appear, nothing turns upon this.
  4. [21]
    Prior to entering court the applicant asked his solicitor, “Are we still trying for no conviction to be recorded?”  His solicitor contacted his principal and had a conversation with him.  He then told the applicant that he was not going to make such a submission because “it will be embarrassing”.  No such submission was made and the material prepared by the applicant and his wife to support that submission and, indeed, in mitigation of sentence generally, was not placed before the sentencing judge.
  5. [22]
    The substantial complaint that the applicant now makes on this application is that his instructions to submit to the sentencing judge that no conviction should be recorded were not carried out and the instructions contained in the applicant’s statement and that of his wife in support of such a submission were not conveyed to the judge.
  6. [23]
    The applicant pleaded guilty to the indictment presented before McGinness DCJ.  The prosecutor outlined the facts alleged by the prosecution as I have already set them out.  She submitted that the seriousness of the offence required a term of imprisonment to be imposed as “the only appropriate sentence”.  She referred to three previous cases which, she said, supported that submission.
  7. [24]
    The applicant’s solicitor acknowledged to the learned sentencing judge that the appropriate sentence would be one of imprisonment but submitted that there should be an order for immediate release.  He conceded at the outset of his submissions that the charge was “objectively very serious”.  He then told the judge that after the charge had been laid Child Youth Services had excluded the applicant from his family home.  This exclusion persisted for about six weeks and had had a serious effect upon the applicant and, indeed, his whole family.
  8. [25]
    The applicant’s solicitor then successfully distinguished the previous cases relied upon by the prosecutor.  The learned sentencing judge accepted that the cases that had been referred to were more serious than this one.
  9. [26]
    The applicant’s solicitor then pointed to the factors in mitigation.  He said:

“So what your Honour has here with Mr Barany is early acceptance, early cooperation with police, acceptance of responsibility, an early guilty plea, matters that are less serious in nature and duration, in my submission, than any of the other cases before the court, both defence or prosecution cases, the passive as opposed to the active nature of the sharing.  There was no commerciality whatsoever involved in this.  Mr Barany has undertaken significant steps to rehabilitate himself and have himself treated both for depression and also that he has stopped – almost entirely stopped drinking since he committed these offences.

He has prior good character and he has excellent future prognosis in terms of it being very unlikely that he will re-offend in the future.”

  1. [27]
    That was a succinct and accurate summary of all of the mitigating factors with the exception of reference to travel problems that might ensue from a conviction being recorded.
  2. [28]
    The question arises whether, in the circumstances of the applicant’s legal representative’s decision to submit in accordance with his instructions that no conviction ought be recorded or to tender the statements that had been prepared to support that submission, there has been a miscarriage of justice.
  3. [29]
    In Nudd v The Queen[1] Gleeson CJ said:

“As a general rule, counsel’s decisions bind the client.  If it were otherwise, the adversarial system could not function.  The fairness of the process is to be judged in that light.  The nature of the adversarial system, and the assumptions on which it operates, will lead to the conclusion, in most cases, that a complaint that counsel’s conduct has resulted in an unfair trial will be considered by reference to an objective standard, and without an investigation of the subjective reasons for that conduct.”[2]

  1. [30]
    The reason given by the applicant’s solicitor to the applicant for his decision not to submit that a conviction should not be recorded was that such a submission would be “embarrassing”.  I do not understand his statement to mean that he thought that he would suffer personal embarrassment for he would not have done so.  Rather, as experienced advocates know, the making of a submission which lacks plausibility or which is unrealistic is not merely pointless; it may well have the effect of prejudicing the best case that can actually be made for a client.  In a case in which an advocate judges that a particular outcome is the best realistic outcome that can be achieved and should be strived for, a submission directed to an ideal but unrealistic outcome may well reduce the prospects of getting the best outcome.  That is because unrealistic submissions have a tendency to distract attention, to provoke pointless losing debate and argument and to overshadow other good possibilities that may be open.  Every skilled and experienced advocate knows this to be true and my experience on the bench, short though it has been, has confirmed that this is so.  Good advocates never advance unreal cases.
  2. [31]
    I understand the applicant’s solicitor to have meant that the submission sought by the applicant would have no real prospect of being accepted but could, instead, prejudice the applicant’s advocate’s real aim: to ensure that his client did not serve any actual period of imprisonment.  Such a result was by no means certain and was the real danger that the applicant was facing.  The prosecutor was seeking actual imprisonment.
  3. [32]
    Such a decision, about matters that every advocate has to consider, binds the client.[3]  In TKWJ v The Queen,[4] again in the context of the conduct of counsel at a trial rather than at a sentence hearing, Gaudron J said:

“Where it is claimed that a miscarriage of justice was the result of a course taken at the trial, it is for the appellant to establish that the course was not the result of an informed and deliberate decision.  This he or she will fail to do if the course taken is explicable on the basis that it could have resulted in a forensic advantage unless, in the circumstances, the advantage is slight in comparison with the disadvantage resulting from the course in question.  It should be added, moreover, that where the course in question is the failure to call evidence, an appellant will not establish a miscarriage of justice unless, as with fresh evidence, the evidence is such that ‘when viewed in combination with the evidence given at trial … the jury would have been likely to entertain a reasonable doubt about the guilt of the accused’.”[5]

  1. [33]
    The principles referred to in Nudd v The Queen and TKWJ v The Queen apply to sentence hearings.[6]
  2. [34]
    In Tsiakas v The Queen[7] Beech-Jones J, who delivered the leading judgment, said:

With both appeals against conviction and sentences, it is not sufficient to warrant intervention to simply point to some failing, even a gross failing, of the legal representative who appeared during the sentence proceedings.  In conviction appeals, where incompetence to the relevant standard is demonstrated, the Court considers whether there is a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial … [i]n sentence appeals an analogous principle applies.  … However, it has also been said that ‘it will be a very rare case’ that a miscarriage of justice will have occurred ‘simply because of a defect in submissions made to a sentencing judge by defence counsel’ … [a]gain these observations reflect the approach adopted with complaints of a denial of procedural fairness namely that ‘[f]airness is not an abstract concept.  [it] is essentially practical’ and that ‘the concern of the law is to avoid practical injustice’ …”[8]

  1. [35]
    The decision to frame the sentencing submissions in this case in the way they were ultimately put, without any submission that a conviction should be recorded, was a decision made for forensic purposes.  For that reason, it cannot be concluded that there has been a miscarriage of justice.
  2. [36]
    However, I will put to one side that the omission to seek an order that the conviction not be recorded was due to a forensic decision and also consider the case as one in which the applicant’s advocate simply acted contrary to his instructions.
  3. [37]
    In this case a miscarriage will have been demonstrated by the solicitor’s omission if, having regard to the omitted material, a conviction might not have been recorded.
  4. [38]
    Because the count alleged in the indictment to which the applicant pleaded guilty was an offence against s 474.19(1) of the Criminal Code (Cth), it is the Crimes Act 1914 which is applicable rather than the Penalties and Sentences Act 1992 (Qld).  Section 19B(1) of the Crimes Act 1914 provides as follows:

“Discharge of offenders without proceeding to conviction

  1. (1)
    Where:

(a) a person is charged before a court with a federal offence or federal offences; and

  1. (b)
    the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but is of the opinion, having regard to:

(i) the character, antecedents, age, health or mental condition of the person;

  1. (ii)
    the extent (if any) to which the offence is of a trivial nature; or
  1. (iii)
    the extent (if any) to which the offence was committed under extenuating circumstances;

that it is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation;

the court may, by order:

  1. (c)
    dismiss the charge or charges in respect of which the court is so satisfied; or
  1. (d)
    discharge the person, without proceeding to conviction in respect of any charge referred to in paragraph (c), upon his or her giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he or she will comply with the following conditions:
  1. (i)
    that he or she will be of good behaviour for such period, not exceeding 3 years, as the court specifies in the order;
  1. (ii)
    …..; and
  1. (iii)
    that he or she will, during a period, not exceeding 2 years, that is specified in the order in accordance with subparagraph (i), comply with such other conditions (if any) as the court thinks fit to specify in the order, which conditions may include the condition that the person will, during the period so specified, be subject to the supervision of a probation officer appointed in accordance with the order and obey all reasonable directions of a probation officer so appointed.
  1. [39]
    It is necessary to consider whether the discretion conferred by s 19B(1) might have been invoked by the additional material.  The matters in s 19B(1)(b)(iii) can be put to one side.  There were no extenuating circumstances in which the offence had been committed.
  2. [40]
    Might the applicant’s “character, antecedents, age, health or mental condition” have rendered it “inexpedient” to inflict any punishment, to inflict only a nominal punishment or to release him on probation?
  3. [41]
    It was not suggested by either of the psychologists whose reports were tendered that the applicant’s unfortunate psychological condition was related in any causative way to his offending.  On the contrary, as the applicant candidly admitted to the police who interviewed him, he searched specifically for pornographic images of 10 year old girls because “I just find them attractive at that age”.  His character and antecedents were fully dealt with in Ms Riggs’s report and the judge had all of that information before her.  The effect upon the applicant’s business is not a relevant matter for s 19B.  However, assuming, as the applicant submits, that the issues concerning difficulties of travel constitute “antecedents”, of which I am not persuaded, the evidence falls far short of establishing that there will actually be any effect upon his travel or business if a conviction were recorded.  It is true that he would have to disclose the fact of his conviction to foreign immigration authorities and to his insurer.  Whether the conviction will actually prevent his entry to any particular country has not been established.  Nor has it been established that if he cannot travel for business purposes that the tasks associated with travel could not be carried out by somebody else.  The applicant does not say so.  In any case, even if such consequences were to follow, they would constitute no more than the usual burdens that follow upon conviction for a serious offence.  The future effect of a conviction cannot, in any case, constitute antecedents, a term to denote an offender’s past.
  4. [42]
    The effect on the applicant’s travel has not been established and, in any event, is not a matter that engages s 19B(1).
  5. [43]
    The applicant also submits in the present application that “whilst it could not be said that the offending was trivial, this was nevertheless a case which was low on the scale of seriousness for such offending”.  That is true.  That submission was made and accepted.  Her Honour gave effect to it by releasing the applicant at once.  The acknowledgement that the offending could not be said to be trivial, which is correct, means s 19B(1)(b)(ii) cannot be engaged on that ground.  The applicant’s solicitor appreciated this at the sentence hearing.  Had the offence been a trivial one, the consequences to the applicant’s business, if established, would have been relevant to the exercise of discretion as an aspect of a consideration of the proportionality of those consequences to the triviality of the offence.  No such question arises here.
  6. [44]
    The applicant has submitted that the circumstances of his business and the significance to him of his freedom to travel “falls within the broad approach to ‘antecedents’”.  Accepting that that is so for the purposes of argument, for the reasons that I have given any consideration of such antecedents could not lead to a conclusion that this was a case in which the discretion conferred by s 19B(1) arose for consideration.
  7. [45]
    The matters raised by the applicant’s wife in her own statement did raise matters of fact in mitigation.  However, they were matters that had been substantially addressed, albeit from a different perspective, in Ms Riggs’s comprehensive report.  In summary, the applicant’s family circumstances, the applicant’s character as a loving and decent husband and father, his mental suffering, his fundamental decency and his candour and insight, are all matters that the learned sentencing judge appreciated, took into account and to which she manifestly gave effect in imposing the sentence which she imposed.
  8. [46]
    A consideration of these matters leads to the conclusion that the applicant’s solicitor’s omission to seek an order that no conviction be recorded and his omission to put forward the statements led to no miscarriage of justice.  Indeed, in my respectful opinion, he took the best forensic course as an advocate.  None of the facts raised in the contested material was capable of justifying such an order in this case and the submission could not possibly have succeeded.
  9. [47]
    The statutory offence itself and the acts that constituted the offence were not trivial.  Also, as the prosecutor at the sentence hearing emphasised, this is not a victimless crime.  The propagation of pornographic pictures of children to satisfy a perverted desire for them is something that justifies somebody, somewhere, using children to create such images in the first place.  The Australian community’s denunciation of sexual offences involving children and the requirement for general deterrence are the reasons why offenders against s 474.19(1) of the Criminal Code (Cth) will almost inevitably be sentenced to a term of imprisonment and have a conviction recorded.
  10. [48]
    For these reasons I am of the opinion that the applicant has shown no miscarriage of justice in this case nor has he shown that the sentence imposed was so excessive as to reveal some hidden error in the exercise of the sentencing discretion.
  11. [49]
    I would refuse the application for leave to appeal.
  12. [50]
    MORRISON JA:  I agree with the reasons of Sofronoff P and the order his Honour proposes.
  13. [51]
    PHILIPPIDES JA:  I agree with the reasons of Sofronoff P and with the order proposed.

Footnotes

[1]  (2006) 80 ALJR 614.

[2]  At paragraph [9].

[3] TKWJ v The Queen (2002) 212 CLR 124 at [8] per Gleeson CJ.

[4] Supra.

[5] Supra at [32]-[33]; the passage in quotes is a citation from Mickelberg v The Queen (1989) 167 CLR 259 at 301 per Toohey and Guadron JJ.

[6] Munro v The Queen [2006] NSWCCA 350; Abbott v The Queen (1985) 17 A Crim R 355; Pym v The Queen [2014] NSWCCA 182; Tsiakas v The Queen [2015] NSWCCA 187.

[7] Supra.

[8] Supra, at [44]; citations omitted.

Close

Editorial Notes

  • Published Case Name:

    R v Barany

  • Shortened Case Name:

    R v Barany

  • MNC:

    [2018] QCA 137

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Morrison JA, Philippides JA

  • Date:

    26 Jun 2018

  • White Star Case:

    Yes

Litigation History

Event Citation or File Date Notes
Primary Judgment DC435/17 (No Citation) 06 Nov 2017 Date of Sentence (McGinness DCJ).
Appeal Determined (QCA) [2018] QCA 137 26 Jun 2018 Application for leave to appeal against sentence refused: Sofronoff P and Morrison and Philippides JJA.

Appeal Status

{solid} Appeal Determined (QCA)