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R v Hodges[2008] QCA 138

 

COURT OF APPEAL

 

FRASER JA

PHILIPPIDES J

DAUBNEY J

 

  

CA No 80 of 2008

THE QUEEN

v

MICHAEL RICHARD HODGES                   Applicant

  

BRISBANE 

 

DATE 30/05/2008

 

 

 JUDGMENT

  

 

APPLICANT conducted his own case

 

MR A K GET (instructed by the Commonwealth Director of Public Prosecutions) for the respondent

 

MR R G MARTIN SC (instructed by the Director of Public Prosecutions (Queensland)) for the respondent

 

 

DAUBNEY J:  On the 16th of December 2005 the applicant was convicted on his own plea of the following offences on Indictment No 2913 of 2005:

 

(a)21 counts of using the Internet to procure children under 16 with a circumstance of aggravation;

(b)3 counts of using the Internet to procure children under 16;

(c)2 counts of indecent treatment of children under 16 with a circumstance of aggravation;

(d)1 breach of bail condition.

 

On Indictment No 2912 of 2005, he was on that same day, convicted on his own plea of one count of indecent treatment of a child under 16 with a circumstance of aggravation.

 

The offences contained in Indictment 2913 of 2005 were committed between September 2003 and October 2004.  Many of the offences involved the applicant logging into Internet chat sites and actively, and expressly, seeking to procure girls of about 10 years of age for sexual purposes. 

 

The applicant's activities were uncovered by the chat room monitors and also by the staff of the Internet cafés which the applicant frequented for the purposes of accessing the Internet.  Several of the offences occurred when the applicant sought to procure children for sexual purposes through contacts he made in a telephone chat room. 

 

On one occasion in May 2004 the applicant was apprehended by police at a particular Internet café, participated in a police interview during which he made a number of admissions, was charged and was released on bail on conditions, including that he not access any computer capable of Internet access.  He breached that condition by subsequently going on to the Internet, accessing chat rooms, and continuing his conduct of seeking to procure children for sex.

 

The offence charged under Indictment 2912 of 2005 related to an incident which had occurred in December 2000 when the applicant inappropriately touched the young daughter of an acquaintance.

 

For the charges contained in Indictment 2913 of 2005 the applicant was convicted and sentenced to three years and six months imprisonment suspended for five years after serving 423 days imprisonment.  423 days of pre-sentence custody was declared as time already served, which therefore entitled him to immediate release on the suspended part of the sentence.

 

On Indictment 2912 of 2005 he was convicted and sentenced to three years probation with a special condition that he undergo such psychological assessment and treatment as was deemed appropriate.  He was also convicted, but not further punished, for the offence under the Bail Act 1980.

 

On 16 February 2007 the applicant pleaded guilty to, and was convicted of, the following offences:

 

(a)2 counts of using the Internet to procure a child under 16 with aggravation;

(b)1 count of involving a child in making child exploitation material;

(c)2 counts of using a carriage service to transmit child pornography material.

 

When brought before the Court for sentencing on 16 February 2007, the applicant was also dealt with for the breach of the sentence which had been imposed on 16 December 2005.  For the breach of the December 2005 sentence the applicant was ordered to serve the unserved portion of that sentence, being 855 days, to commence on 16 February 2007.

 

The offences to which the applicant pleaded guilty in February 2007 occurred while he was subject to the three year probation order which had been imposed in December 2005, and also while he was subject to a direction given by the Department of Corrective Services on 18 January 2006 that he not access the Internet at such places as libraries or Internet cafés

 

The circumstances of the offences to which the applicant pleaded guilty in February 2007 involved the applicant, in February 2006, communicating with a woman by phone and seeking to procure a meeting with that woman's nine year old daughter and her daughter's supposed 10 year old friend for the purposes of sex (the woman had become suspicious of the applicant and had invented the existence of the daughter's friend when speaking with the applicant).  This woman provided information to the police which led to the applicant's apprehension.  Police executed a search warrant at his residence in March 2006 and located, amongst other things, his mobile phone and telephone records.  The further investigations by police, including the information provided by the applicant in the course of a formal interview with police, revealed that the applicant had also been communicating with an adult woman in South Australia.  The applicant had sent this woman a series of text messages in which he asked her to send him photos of her 10 year old daughter in the nude or in her underwear.  Police investigations also revealed that the applicant had, in March 2006, gone to the Cleveland Public Library where he booked a computer to access the Internet for the purposes of viewing pornographic photographs.

 

For each offence to which the applicant pleaded guilty in February 2007, he was convicted and sentenced to two years imprisonment to commence on 15 June 2009, with a parole eligibility date of 23 July 2009 (326 days of pre-sentence custody being declared as time served).

 

The applicant has now applied for an extension of time to appeal against his convictions in 2005 and 2007 and for leave to appeal against the sentences.  The application for the extension of time was filed and served on 17 February 2008, that is some 12 months after the 2007 convictions and just over two years after the 2005 convictions.  The grounds advanced by the applicant for the extension of time, and the reasons given for the delay in applying, are that he is without legal assistance,  he has difficulties in accessing material and preparing documents and that he is "mentally challenged with an IQ of 61 to 69".

 

In the appeals against the convictions and sentences which the applicant would seek to pursue, the applicant would appear to want to go behind his pleas of guilty in both 2005 and 2007 to mount a case that his pleas of guilty were procured from him in circumstances where his limited intellectual capacity was exploited, that the circumstances in which the offences are said to have occurred warrant further investigation and that, in any event, the sentences imposed in respect of the offences were manifestly excessive.

 

On an application for extension of time to appeal, it is necessary for the Court to examine whether the applicant has shown any good reason for the delay, and consider whether it is in the interests of justice for the extension to be granted.  To the extent that it is appropriate and necessary, this process may involve some assessment of whether the appeal seems viable, including, where appropriate, making some provisional assessment of the strength of the mooted appeal.  Another relevant factor is the length of delay.  These considerations were canvassed at some length by this Court in R v Tait [1999] 2 Qd R at 667.

 

In my view the applicant has not given any satisfactory, let alone good, explanation for the delay in making the present application.  In any event, the appeals which the applicant would seek to pursue are, in my opinion, specious.  True it is that the expert psychological evidence demonstrates that the applicant suffers from a degree of intellectual impairment, but there is simply no basis for a conclusion that the applicant's pleas of guilty were tainted or procured by undue or improper influence, or that he did not understand what he was doing when he pleaded guilty.  Beyond the rhetorical assertions made in the submissions prepared for the applicant for today's hearing, there is no evidence whatsoever put before us to substantiate the serious allegation that the applicant was coerced into pleading guilty.  Indeed, such information as is before us tends to support the notion that he knew and understood the consequences of his pleas.  For example, Mr Hatzipetrou, psychologist, in a report dated 13 February 2007, prepared for the purposes of the hearing on 16 February 2007, noted in relation to the applicant's offending conduct as follows:

 

"Coupled with poor reasoning abilities, limited socialisation and abnormal socio-sexual development, it appears Mr Hodges' capacity to understand the consequences of his actions or control his actions at the time of the offences was likely to be impaired yet not deprived.  He recognised these behaviours to be wrong at interview and during the offences.  However Mr Hodges did present with poor insight into the seriousness of these behaviours and demonstrated poor judgment at the time of the offences." (underlining added).

 

At the time the applicant was sentenced in 2005, his counsel said to the Court:

 

"My client understands the very serious consequences of breaching either the suspended sentence or any probation order and I have explained to him it is possible to breach a probation order not only by re-offending but by non-compliance.  He understands those conditions and he is able to consent to them."

 

In the absence of any evidence to support the assertion that the applicant's intellectual impairment led to a lack of capacity on his part to understand the meaning and implications of his pleas of guilty, the suggestion that the applicant did not understand what was happening cannot be maintained.  Nor can the suggestion that his pleas were tainted by coercion.

 

There is otherwise no merit in the foreshadowed appeal.  In view of the nature of the offences, the applicant's recidivistic conduct, and his pattern of offending even in breach of bail conditions and while on a suspended sentence, I consider there is no proper or sensible basis for contending that the sentences pronounced in December 2005 and February 2007 were in any way excessive. 

 

Accordingly, and in the absence of any good explanation for the delay in bringing this application, I would refuse the application for extension of time.

 

PHILIPPIDES J:  I agree.

 

FRASER JA:  I agree.  The order of the Court is that the application for an extension of time is refused.

Close

Editorial Notes

  • Published Case Name:

    R v Hodges

  • Shortened Case Name:

    R v Hodges

  • MNC:

    [2008] QCA 138

  • Court:

    QCA

  • Judge(s):

    Fraser JA, Philippides J, Daubney J

  • Date:

    30 May 2008

Litigation History

EventCitation or FileDateNotes
Primary Judgment-16 Dec 2005Convicted on plea of guilty to 21 count of using the internet to procure with aggravation, 3 counts of using the internet to procure, 2 count of aggravated indecent treatment under 16, and one beach of bail; convicted and sentenced to three years and six months imprisonment suspended for five years; on another indictment pleaded to indecent treatment under 16 and sentenced to three years probation with a special condition.
Primary Judgment-16 Feb 2007Pleaded guilty to 2 counts of using internet to procure with aggravation, 1 count of involving a child in making child exploitation material, and 2 counts of using a carriage service to transmit child pornography material; sentenced to two years imprisonment to commence on 15 June 2009, with a parole eligibility date of 23 July 2009.
Appeal Determined (QCA)[2008] QCA 13830 May 2008Application to extend time to bring conviction appeal and sentence application refused; applications filed 12 months and 2 years respectively late; no proper explanation for delay and no proper basis to assert sentences were manifestly excessive: Fraser JA, Philippides and Dubney JJ.

Appeal Status

Appeal Determined (QCA)

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