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  • Unreported Judgment

R v Mellor

 

[2019] QCA 298

SUPREME COURT OF QUEENSLAND

CITATION:

R v Mellor [2019] QCA 298

PARTIES:

R

v

MELLOR, Callum Lloyd

(applicant)

FILE NO/S:

CA No 273 of 2019

DC No 1906 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 4 October 2019 (Koppenol DCJ)

DELIVERED ON:

Date of Order: 28 November 2019

Date of Publication of Reasons: 17 December 2019

DELIVERED AT:

Brisbane

HEARING DATE:

28 November 2019

JUDGES:

Sofronoff P and Fraser JA and Boddice J

ORDER:

Date of Order: 28 November 2019

The application for leave to appeal against sentence is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCESENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant entered pleas of guilty to two counts of using electronic communication to procure a child under 16 and one count of grooming a child under 16 and was convicted and sentenced to 12 months imprisonment for each of the electronic communication counts and a concurrent six months imprisonment for the grooming count – where the sentences of imprisonment were suspended, after the applicant had served four months in custody, for an operational period of three years – where the applicant contended that exceptional circumstances existed to justify the imposing of a non-custodial sentence and, further, that imposing the sentence of actual imprisonment making the applicant a reportable offender was manifestly excessive – where the applicant contended the trial judge failed to properly exercise the sentencing discretion by inference to the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), when considering the question of exceptional circumstances – whether the sentence was manifestly excessive

Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld)

Penalties and Sentences Act 1992 (Qld), s 9(6), s 152

COUNSEL:

B J Peters (sol) for the applicant

D Balic for the respondent

SOLICITORS:

Brisbane Criminal Law for the applicant

Director of Public Prosecutions (Queensland) for the respondent

  1. [1]
    SOFRONOFF P:  I agree with Boddice J.
  2. [2]
    FRASER JA:  I agree with the reasons for judgment of Boddice J.
  3. [3]
    BODDICE J:  On 4 October 2019, Callum Lloyd Mellor entered pleas of guilty to two counts of using electronic communication to procure a child under 16 and one count of grooming a child under 16.  He was convicted and sentenced to 12 months imprisonment for each of the electronic communication counts and a concurrent six months imprisonment for the grooming count.  The sentences of imprisonment were suspended, after the applicant had served four months in custody, for an operational period of three years.
  4. [4]
    The applicant sought leave to appeal those sentences.  The grounds of appeal, should leave be granted, were:

“1. Exceptional circumstances did exist, when taken as a whole, which would justify the imposing of a non-custodial sentence.

  1. There was a failure to properly exercise the sentencing discretion by inference to the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), when considering the question of exceptional circumstances.  The impact of the Act is a relevant consideration on the sentencing for an offence of this kind.
  1. The sentence of actual imprisonment with becoming a reportable offender is manifestly excessive.”
  1. [5]
    On 28 November 2019, this Court ordered that the application for leave to appeal against sentence be dismissed.
  2. [6]
    These are my reasons for joining in that order.

Background

  1. [7]
    The applicant was born on 7 March 1998.  He was aged 20 years at the time of the commission of the offences.  He was aged 21 at the date of sentence.
  2. [8]
    The applicant had a criminal history.  It contained one offence of contravention of a domestic violence order, committed on 16 December 2017, for which the applicant had been sentenced, on 8 January 2018, to probation for 12 months with no conviction recorded, and a subsequent offence of contravention of a domestic violence order (aggravated offence), committed on 19 April 2018, for which the applicant had been sentenced, on 14 May 2018, to probation for two years.  A conviction was recorded for that offence.

Offences

  1. [9]
    The offences all related to one male complainant, who was aged 13 to 14 years at the time of the offences.  The applicant met the complainant as a consequence of the applicant being a trainer at the complainant’s football club.
  2. [10]
    The first offence of using electronic communications to procure a child under 16 was committed on a date unknown between 30 April 2018 and 1 June 2018.  It involved communications initiated by the applicant.  Over a number of days, innocent communications between them changed to communications with sexual content.  Those communications included questions by the applicant as to the complainant’s sexuality and whether he was attracted to males.  The applicant attempted to have the complainant meet with him.  The applicant spoke about his prowess in performing oral sex.  He told the complainant of previous sexual encounters.  Ultimately, the applicant propositioned the complainant to try sexual acts.  The complainant did not respond to those requests.
  3. [11]
    The remaining counts were committed on a date unknown between 31 July 2018 and 1 September 2018.  The applicant initiated contact afresh with the complainant.  Initially, the communications were about football.  Within a short period of time, the communications turned to sexual matters.  The communications included the expression of a desire by the applicant to meet with the complainant.  The applicant offered money as an incentive.  He expressed his sexual desire towards the complainant.  On one occasion, he attempted to telephone the complainant.  On five occasions, he asked the complainant to send him photographs of his penis.  The complainant refused and the applicant again offered money.  The complainant’s continued refusals did not cause the applicant to desist.  The applicant sent the complainant a photograph of his own erect penis.  In subsequent conversations, the applicant told the complainant the things he would do to the complainant would be “rough” and that he would “be begging him to stop”.

Sentencing hearing

  1. [12]
    At the sentencing hearing, the Crown relied upon a victim impact statement in which the complainant described the applicant’s conduct as having caused him to become a completely different person.  He was scared because he had trusted the applicant.  The complainant felt he could not trust anyone.
  2. [13]
    The Crown tendered a Court report in relation to the applicant’s performance on probation.  That report noted that the applicant had committed the contravention of a domestic violence order (aggravated offence) whilst subject to probation and after the applicant had engaged with a psychologist, in accordance with the probation authority’s recommendations that the applicant’s identified needs in relation to mental health, substance abuse and domestic violence be addressed via psychological intervention.
  3. [14]
    The report noted that, subsequent to the commission of that offence, the applicant was issued with a verbal warning for the breach of his probation order.  The applicant was referred to a rehabilitation program to address substance abuse.  The applicant completed that program.  After receiving notification the applicant had committed these offences, the applicant was again directed to engage in psychological intervention.
  4. [15]
    The report concluded that, although the applicant had committed further offences whilst subject to probation, he had attempted to address his needs through an in-patient rehabilitation program and psychological intervention.  His motivation to address those needs and his engagement in intervention deemed him suitable for further community based orders.
  5. [16]
    The applicant relied upon a letter of support from a facilitator at the rehabilitation program, a report from a psychologist and several references.
  6. [17]
    The facilitator confirmed the applicant had actively and successfully participated in a ten week program of treatment and a further seven week transition house program.
  7. [18]
    The psychologist recorded that the applicant had attended for treatment on nine occasions since 20 May 2019.  In his initial sessions, the applicant reported conflict in his parents’ relationship, with the applicant being regularly verbally abused by both parents, as well as physically assaulted by his father.  The applicant also described bullying at school, resulting in an entrenchment of negative feelings about his worth.
  8. [19]
    During treatment, the applicant had demonstrated guilt, shame and remorse in relation to his offending.  The applicant had also been sober from alcohol and any other substances for one year and four months.
  9. [20]
    The psychologist opined that the applicant was an emotionally neglected and verbally abused child, whose early life experiences, lack of positive adult attachment and issues with immediate gratification, appeared to contribute to a number of symptoms which had materialised in his teenage years.  He had become dependent upon alcohol, with that addiction continuing into his adult years.  The applicant’s need for connection and immediate gratification had led to early sexual experimentation with a male friend, at the age of 12.  The applicant described his sexualised thoughts about teenage boys since that time as being an attempt to experience those feelings again and an attempt to recreate the connection he had experienced in his youth.  The offending had occurred in a cycle of loneliness and depressed feelings.
  10. [21]
    The references spoke of the applicant’s successful attempts to address his abuse of alcohol.  They also spoke of positive changes in his attitudes since addressing that alcohol addiction.

Sentencing remarks

  1. [22]
    The sentencing Judge accepted the applicant had entered early pleas of guilty.  The sentencing Judge observed the sentence to be imposed must, by law, be a custodial sentence unless the sentencing Judge was satisfied there are exceptional circumstances which justify a non-custodial sentence.
  2. [23]
    After noting both the Crown and the defence had submitted a head sentence of 12 months imprisonment was appropriate, the sentencing Judge observed the Crown submitted there were no exceptional circumstances, having regard to the fact the offences, which were committed while the applicant was subject to a probation order, involved a breach of trust and persistent and escalating contact which had had a negative impact upon the complainant as demonstrated in the victim impact statement.
  3. [24]
    The sentencing Judge observed that defence counsel had submitted there were exceptional circumstances, namely the applicant’s youth, problem with alcoholism and the significant steps taken towards rehabilitation.  The references not only spoke well of the applicant, they confirmed the applicant had been free of alcohol and sober for 16 months.  The psychological report also spoke of the applicant’s shame, remorse and willingness to undertake a sexual offender’s treatment program.
  4. [25]
    The sentencing Judge observed the psychological report referred to the applicant having sought immediate sexual gratification and as having experienced a high level of sexual preoccupation at the time of the offences.  There was also no evidence the applicant was affected by alcohol at any of the relevant times.
  5. [26]
    The sentencing Judge concluded that, notwithstanding the applicant’s early pleas of guilty and all of the circumstances of the case, there were no exceptional circumstances which would justify the imposition of a non-custodial sentence.  The sentencing Judge described the applicant’s conduct as preying on the complainant in circumstances where there was no encouragement from the complainant.

Submissions

  1. [27]
    The applicant submits the sentencing Judge erred in not making a finding of exceptional circumstances.  Whilst the sentencing Judge had had regard to the factors listed in section 9(6) of the Penalties and Sentences Act 1992 (Qld), the sentencing Judge had not had regard to a relevant factor, namely, the impact of a sentence of imprisonment due to the provisions of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld).  That Act imposes reporting obligations upon a relevant offender rendering the offender liable to the commission of an offence if there is a failure to comply.
  2. [28]
    The applicant submits that a re-exercise of the sentencing discretion would lead to an order that the periods of imprisonment on all counts be suspended immediately.  Relevant factors in the exercise of that discretion include the applicant’s youth, a lack of significant age disparity, the lack of physical contact, the applicant’s personal circumstances and his successful efforts at rehabilitation.
  3. [29]
    The respondent submits there was no error in the exercise of the sentencing discretion.  The applicant’s offending involved a course of conduct deliberately designed to persuade the complainant child to interact sexually with the applicant.  It was persistent, manipulative, explicit and of an escalating nature.  It had had a negative effect on the complainant and had occurred in circumstances where the applicant was in a position of trust, with an effective duty of care to the complainant.
  4. [30]
    The respondent further submits that both the Crown and the defence accepted a period of imprisonment was warranted, with the consequence that the applicant became a reportable sexual offender, whether or not he was required to serve an actual term of imprisonment.  Accordingly, even if there is established an error, a re-exercising of the sentencing discretion would result in similar sentence.

Consideration

  1. [31]
    At the sentence hearing, there was no submission either by the Crown or defence that the applicant’s offending did not warrant the imposition of a sentence of imprisonment.  Such a proposition was plainly in accord with proper sentencing principles, having regard to the predatory and persistent nature of the applicant’s offending conduct, the relative age disparity between the complainant and the applicant, and the position of trust occupied by the applicant in respect of members of the football club, of which the complainant was one.
  2. [32]
    The imposition of a sentence of imprisonment meant the sentencing Court had to record convictions in respect of each of those offences.[1]  The recording of those convictions was not affected by whether the applicant was ordered to serve any of those periods of imprisonment in actual custody.
  3. [33]
    Once it is understood that convictions had to be recorded, regardless of the sentencing Judge’s determination as to whether there existed exceptional circumstances warranting an order for the applicant’s immediate release from custody, be it on parole or pursuant to a suspended sentence, there arises no issue as to the sentencing Court having to specifically consider the effects of the provisions of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld).
  4. [34]
    By reason of the definition of a reportable offender in s 5 of that Act, the applicant was a reportable offender.  He was convicted of a prescribed offence; a conviction was recorded under the Penalties and Sentences Act 1992 (Qld); the applicant was sentenced for more than one prescribed offence; and the sentence included a term of imprisonment.
  5. [35]
    This conclusion means there is no substance in the second proposed ground of appeal.  There is also no basis to conclude that the mere fact the applicant became a reportable offender rendered a sentence of actual imprisonment manifestly excessive, as contended in proposed ground three.
  6. [36]
    As to the remaining proposed ground, the sole basis for a contention that there was an error in the exercise of the sentencing discretion, by reason of the finding that exceptional circumstances did not exist, was that the sentencing Judge had not had regard to the impact of the sentence of actual imprisonment, due to the provisions of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld).
  7. [37]
    For the reasons outlined above, a failure to have regard to that Act did not constitute an error in the exercise of the sentencing discretion.  In any event, the effect of the legislative provisions, which apply generally to offenders, is unlikely, by itself, to support a finding of exceptional circumstances within the meaning of s 9(6) of the Penalties and Sentences Act 1992 (Qld).

Conclusion

  1. [38]
    A consideration of the applicant’s offending, even in the context of the mitigating factors, such as his relative youth, his pleas of guilty and the other extenuating circumstances, including his prospects of rehabilitation, supports a conclusion that a finding that exceptional circumstances did not exist was in accordance with proper sentencing principles.
  2. [39]
    There is no basis to conclude that the exercise of the sentencing discretion miscarried in any material way.  There is also no basis to conclude that a sentence, which required the applicant to serve a term of actual imprisonment, was manifestly excessive.  Such a sentence does not evidence a misapplication of principle.  It is also not plainly unjust.
  3. [40]
    Accordingly, the application for leave to appeal against sentence was dismissed.

Footnotes

[1]Penalties and Sentences Act 1992 (Qld), s 152.

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Editorial Notes

  • Published Case Name:

    R v Mellor

  • Shortened Case Name:

    R v Mellor

  • MNC:

    [2019] QCA 298

  • Court:

    QCA

  • Judge(s):

    Sofronoff P, Fraser JA, Boddice J

  • Date:

    28 Nov 2019

Litigation History

No Litigation History

Appeal Status

No Status