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- Notable Unreported Decision
- Appeal Determined (QCA)
R v Rogers QCA 192
SUPREME COURT OF QUEENSLAND
Court of Appeal
19 July 2013
3 May 2013
Holmes and Fraser JJA and Henry J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made
1. Leave to appeal is granted.
2. The appeal is allowed.
3. The recording of convictions on each count is set aside.
4. On each count no conviction is to be recorded.
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where applicant was convicted on his own plea of guilty of two counts of using electronic communication with intent to expose indecent matter to a child under 16 – where applicant sentenced to three years probation with convictions recorded – where applicant seeks leave to appeal his sentence on the bases that the learned sentencing Judge erred when he sentenced the applicant on the basis that there was something “seriously wrong with the way in which (his) case (had) come before the court”, erred in proceeding on the basis that the applicant was not remorseful and erred when he sentenced the applicant against a “background of unlawful carnal knowledge” – whether the learned sentencing Judge erred in sentencing the applicant
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where applicant became a reportable offender under the Child Protection (Offender Reporting) Act 2004 (Qld) on the recording of convictions – whether the recording of convictions would have an adverse impact on the applicant’s social wellbeing – where the offending was towards the lower end of the scale for indecent exposure cases – where applicant was of otherwise good character – whether the learned sentencing Judge erred in recording convictions against the applicant
Child Protection (Offender Reporting) Act 2004 (Qld), s 5(2), s 11(1), s 12, s 16, s 18, s 19, s 20, s 22, s 36
Criminal Code Act 1899 (Qld), s 218A(1)
Penalties and Sentences Act 1992 (Qld) s 9(5), s 12, s 180
R v Burdon; Ex parte A-G (Qld) (2005) 153 A Crim R 104;  QCA 147, cited
R v D  1 Qd R 363,  QCA 329, followed
R v Gallagher, ex parte Attorney-General  1 Qd R 200,  QCA 467, cited
R v Hays (2006) 160 A Crim R 45;  QCA 20, cited
R v Kelly  QCA 185, cited
R v Koster  QCA 302, cited
R v McGrath  2 Qd R 58;  QCA 463, cited
R v Mirza; ex parte A-G (Qld)  QCA 23, cited
R v SAT (2006) 170 A Crim R 156;  QCA 70, cited
P Callaghan SC, with J A Greggery, for the applicant
M Connolly for the respondent
Anderson Telford Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent
 HOLMES JA: I agree with the reasons of Henry J and the orders he proposes.
 FRASER JA: I agree with the reasons for judgment of Henry J and the orders proposed by his Honour.
 HENRY J: The applicant was convicted on his own plea of guilty of two counts of using electronic communication with intent to expose indecent matter to a child under 16. On each offence he was sentenced to three years probation with convictions recorded.
 The applicant seeks leave to appeal his sentence on the following grounds:
1. The sentence imposed was manifestly excessive.
2. His Honour the learned sentencing Judge erred by failing to take into account the lengthy period for which the applicant had been on bail, under threat of conviction of more serious charges than those of which he was convicted.
3. His Honour the learned sentencing Judge erred when he sentenced the applicant on the basis that there was something “seriously wrong with the way in which (his) case (had) come before the court”.
4. His Honour the learned sentencing Judge erred when he failed to re-open proceedings pursuant to s 188(5)(a) of the Penalties and Sentences Act 1992.
5. His Honour the learned sentencing Judge erred in proceeding on the basis that the applicant was not remorseful.
6. His Honour the learned sentencing Judge erred when he sentenced the applicant against a “background of unlawful carnal knowledge” which made the offences more serious.
 On the night of 24 January 2010 the applicant, then aged 20, sent two mobile phone text messages to his girlfriend, the complainant, who was aged 14 and a half. One text message contained a still photograph of the applicant’s penis and the other contained a short video of the applicant stroking his penis.
 The complainant did not see the messages, which were intercepted by the complainant’s mother. A police investigation ensued.
 When police first interviewed the complainant, on 10 February 2010, she explained she had been seeing the applicant on a regular basis and that intercourse had occurred between them. In the course of that interview she acknowledged having previously had sexual intercourse with three other partners.
 The applicant was arrested on 24 February 2010 on one count of unlawful carnal knowledge and two counts of using electronic communication with intent to expose indecent matter to a child under 16.
 In her first interview with police the complainant specifically indicated that the sexual intercourse between her and the applicant had been consensual. However in her second interview with police on 4 November 2010, over eight months later, she claimed she had been raped. A charge of rape was then brought, slowing the progress of the matter through the Magistrates Court.
 In the upshot the applicant was indicted on one count of maintaining an unlawful sexual relationship with a child, one count of rape and two charges of using electronic communication with intent to expose indecent matter to a child under the age of 16.
 On 28 November 2012 the applicant pleaded guilty to the latter two charges and went to trial on the former two charges.
 He gave evidence in his trial that he had only had sexual intercourse with the complainant once, at a time well after the acts of intercourse described by the complainant in her evidence. The applicant was acquitted by the jury, leaving him to be sentenced for the two offences of using electronic communication with intent to expose indecent matter to a child under 16.
The sentence proceeding below
 The learned Crown Prosecutor at first instance submitted it was an aggravating feature that the offences had occurred against the background of a sexual relationship and that they were not isolated offences.
 Defence counsel submitted that the sending of such messages in the context of a relationship was less serious than the sending of such messages randomly to young females. She explained the disposition of the case had been delayed by the bringing of the charges of which the applicant was acquitted and emphasised that he remained in employment at a local department store. In submitting that no conviction should be recorded the applicant’s counsel also emphasised the significant imposition involved in becoming a reportable offender under the Child Protection (Offender Reporting) Act 2004 (Qld).
 A psychologist’s report was tendered. It reported that the applicant’s cognitive functioning lies marginally above the 25th percentile for his age group, placing him “between the lower range of intellectually average and definitely below average in intellectual capacity”. The psychologist opined the applicant was “vulnerable to making unwise decisions”. She concluded the applicant was demonstrating remorse for his actions and that the behaviour was unlikely to recur.
 The learned sentencing Judge drew defence counsel’s attention to a passage in the report which listed prosecution source materials, in addition to a letter of instruction from the applicant’s solicitor, as the documents supplied. Of those documents the report said:
“From the above documents it appears that [the applicant] met [the complainant] in mid 2009 and commenced a sexual relationship with her in August 2009 which continued until January 2010.”
 Defence counsel explained that was a reference to information that was contained in the police form QP9 and that there had been no variation in the applicant’s instructions as to what occurred. That is, the information was not derived from the defence solicitor’s letter of instruction.
 Despite this the learned sentencing Judge said of the aforementioned passage in the report of Ms Dormer, the psychologist:
“That is completely contrary to the case that was advanced here on your behalf and one can only have the impression that something is seriously wrong with the way this case has come before the Court.
It does not appear that anybody ever told Ms Dormer that she had the facts completely wrong. I do not know what part you had to play in that and I cannot make assumptions about you in view of her conclusion about your level of intelligence but it does tell me this, I think, that you are not a remorseful person and that you probably regard this proceeding as the same sort of game as you were playing when the young lady’s mother was telling you to leave her alone, and telling you that she was gaol-bait.”
 His Honour also observed:
“The offences to which you have pleaded guilty are serious offences of their kind. They are made more serious because they occur against a background of unlawful carnal knowledge with a 14 year old for which you have not been dealt with, but it is important to note that they involve a 14 year old girl.”
 As to the recording of the conviction, His Honour said:
“You are young but I must see that the community is protected. It seems to me it is appropriate to protect the community by the recording of convictions in respect of each of the counts.
I note that the requirements for section 12 of the Penalties and Sentences Act with the exception of your previous good character and age are not in your favour. There is no indication that the recording of a conviction will have an effect on your chances of finding or maintaining employment. To record a conviction will result in you being monitored so that such offending cannot occur again.”
 His Honour also noted the applicant’s previous good record and his low intelligence.
 It was obvious the psychologist’s recitation that the applicant commenced a sexual relationship with the complainant in August 2009 which continued until January 2010 could not have come from all of the documents she had listed “above”. For example the list included search warrants, field property receipts and a birth certificate. Against that background it did not follow that the assertion had necessarily come from the defence letter of instruction. Defence counsel clearly explained it had come from the police materials and that there had been no variation in the applicant’s instructions. That explanation was credible and unchallenged. The learned sentencing Judge therefore erred in concluding from the inconsistency between the psychologist’s recitation of fact and the conduct of the defence case that there was “something seriously wrong” with the way the case had come before the court.
 That error was compounded when the learned sentencing Judge reasoned from the fact no one had told the psychologist “she had the facts completely wrong” that the applicant was not remorseful. The defence case acknowledged there been a relationship between the complainant and the applicant that included an episode of sexual intercourse, albeit at a later time than alleged by the prosecution. It is also apparent from that part of the psychologist’s report that dealt with her interview with the applicant that he told her of his involvement with the complainant. The psychologist did not have the facts “completely wrong”. Further the psychologist’s conclusion that the applicant was demonstrating remorse was consistent with the applicant’s pleas of guilty to the only charges for which he fell to be sentenced. His Honour erred in proceeding on the basis the applicant was not remorseful.
 The learned sentencing Judge also erred in concluding, admittedly on the urging of the learned Crown Prosecutor, that the offences were made more serious because they occurred against a background of unlawful carnal knowledge, for which the applicant had not been dealt with. It is well established that a sentencing Judge should not take into account an act which would establish a separate offence involving conduct that did not form part of the offence of which the person to be sentenced has been convicted. The fact that the applicant and the complainant had been in a relationship was relevant in identifying the level of culpability in comparison to where offences of this kind are committed against strangers or by predators seeking to establish a relationship. However it was impermissible to regard the charged offending as more serious by reason of the fact that the relationship had involved the offence of unlawful carnal knowledge.
 For these reasons the errors contended for in grounds 3, 5 and 6 have been made out and it falls to this court to sentence the applicant afresh.
 This court’s intention to sentence afresh was indicated at the hearing with the consequence that submissions as to grounds 1, 2 and 4 were not fully developed. In the circumstances it is unnecessary to express any concluded view as to grounds 1, 2 and 4. Indeed it would be impracticable to do so in respect of ground 4, which was premised upon success in an application for leave to adduce further evidence which, insofar as it related to this ground, it became unnecessary to pursue at the hearing.
 The respondent referred to a variety of sentences involving terms of imprisonment, most of which were not comparable because they involved the use of the internet to seek out sexual contact with children. The offence of using electronic communication with intent to procure a child to engage in a sexual act contrary to s 218A(1)(a) of the Criminal Code Act 1899 (Qld) attracts the same maximum penalty as the offence of using electronic communication with intent to expose a child to indecent matter contrary to s 218A(1)(b), namely five years imprisonment. Either type of offence is inherently serious. However instances of each type of offence will not necessarily be of equal seriousness. The present matter is obviously less serious than those cases in which predators trawl the internet actively trying to procure children to engage in sex acts.
 While the present matter involves two offences, they were committed within minutes of each other and effectively involve a single lapse of judgment on the date of the offending. The offences were made more serious by the fact that one of the images was a video image of the applicant masturbating. While the complainant’s mother was understandably outraged by the images it will be recalled the complainant did not see them and there is no evidence the offences resulted in any adverse impact upon her.
 The disparity in age between the applicant and the teenage complainant was five and a half years. The significance on sentence of that age disparity is somewhat tempered by the applicant’s low intellect.
 The applicant had no previous convictions and is employed.
 His guilty pleas were long foreshadowed and he would have been sentenced much earlier but for the prosecution’s unsuccessful pursuit of the more serious charges of which he was acquitted. Instead he was on bail for two years and nine months awaiting the disposition of his charges. The strain of long being subjected to very serious charges of which he was not guilty was of itself of punitive effect and is therefore a relevant circumstance to have regard to on sentence.
 A community-based order is within the proper range of the sentencing discretion in all the circumstances of this case. The parties are at common ground that a period of probation is the appropriate punishment for these offences. The applicant contends the probation period should be two years while the respondent contends it should be three years. The applicant’s youth, his below average intellectual capacity, his vulnerability to making unwise decisions and the nature of the offending suggest that both he and the community would benefit from him being subject to supervision for a lengthy period.
 In all the circumstances of the case I would impose a sentence of three years probation on each count. Since that was the sentence imposed at first instance it is unnecessary to vary that aspect of the sentence.
 The more contentious issue is whether a conviction should be recorded.
 Section 12(2) of the Penalties and Sentences Act 1992 (Qld) provides:
“In considering whether or not to record a conviction, a court must have regard to all circumstances of the case, including—
(a)the nature of the offence; and
(b)the offender’s character and age; and
(c)the impact that recording a conviction will have on the offender’s—
(i)economic or social wellbeing; or
(ii)chances of finding employment.”
 The nature of the offence is obviously serious. While convictions are ordinarily recorded for offences of a sexual nature committed in relation to children, it is not inevitable. Despite the intrinsic seriousness of any offence of a sexual nature committed in relation to children such offences are not of uniform seriousness. They encompass a very wide spectrum of behaviour and comparable seriousness. The nature of the offending here was towards the less serious end of that spectrum and was not so grave as to inevitably require the recording of a conviction.
 The applicant was 20 at the time of the offending and had no previous convictions. He led a blameless existence during his lengthy time on bail. He is in employment. There was nothing specific before the court to support a conclusion that the recording of a conviction will have an adverse impact on the applicant’s chances of finding employment.
 As to his social wellbeing it was submitted it would be adversely impacted by the recording of a conviction because, by reason of s 5(2)(a) of the Child Protection (Offender Reporting) Act 2004 (Qld), he would on the recording of a conviction become a reportable offender under that Act.
 Section 36 of that Act has the effect that he would have to comply with the reporting obligations imposed by Part 4 of the Act for eight years from the date of his sentence. Those obligations involve having to report personal details to police including his address, the names and ages of children who reside at his address or have regular unsupervised contact with him, the nature and location of his employment, his affiliations with any clubs with child membership or participation, his telephone numbers, his internet providers, his email addresses and other internet user names. Such details must not only be reported annually but also whenever there is any variation to them. He would also have to report his travel arrangements when intending to travel interstate or overseas as well as report his return.
 Those reporting obligations are onerous and it may reasonably be inferred that compliance with them would adversely impact the applicant’s social wellbeing.
 The respondent submitted that because such obligations would arise by operation of statute their impact is an irrelevant consideration in the context of deciding whether a conviction should be recorded. However the terms of s 12 of the Penalties and Sentences Act 1992 (Qld) are clear. The court must have regard to the impact that recording a conviction will have on the offender’s social wellbeing. Section 12’s terms do not discern between impacts caused by operation of statute and impacts caused otherwise. The impact of the abovementioned obligations caused by the recording of a conviction is a relevant consideration under s 12.
 The better point is the bare fact the applicant would become a reportable offender and thus suffer adverse impact upon his social wellbeing is not a determinative consideration. Under s 12, “the court must have regard to all circumstances of the case”. Those circumstances include the nature of the offence and the community interest in taking reasonable precautions for the welfare of children who may come into contact with persons who have in the past committed sexual offences in relation to children. As McPherson JA observed in R v Gallagher, ex parte Attorney-General, refraining from the recording of a conviction tends to deprive those who may have care of such children from finding out about the past offending of such persons. On the other hand the circumstances of the present offending did not bespeak a significant future risk of paedophilic conduct. The offences arose in a situation specific way in the context of a relationship between an immature 20 year old male and his 14 and a half year old girlfriend. Moreover he will not escape supervision in the community. A period of three years probation coupled with the applicant having been on bail for about two years and nine months would give rise to a total period of supervision of him in one form or another by the criminal justice system of about five years and nine months.
 Having regard to the nature of the offence, the applicant’s character and age, the impact of recording a conviction upon his social wellbeing and the length and supervisory nature of the sentence to be imposed I would exercise the discretion to not record convictions.
 I would grant leave to appeal, allow the appeal, set aside the recording of convictions and order on each count that no conviction be recorded.
 R29, third dot point.
 R v D  1 Qd R 363, 403.
 R v McGrath  QCA 463; R v Hays  QCA 20; R v Burdon; Ex parte A-G (Qld)  QCA 147.
 Note the offences were committed before s 9(5)(b) of the Penalties and Sentences Act 1992 (Qld) commenced and that provision does not have retrospective impact, per s 180 and R v Koster  QCA 302.
 R v Gallagher, ex parte Attorney-General  1 Qd R 200.
 R v SAT  QCA 70, R v Mirza, ex parte Attorney-General  QCA 23.
 Explained in R v Kelly  QCA 185.
 While the applicant was found guilty of two class 2 offences, s 36(4) read in conjunction with s 11(1) means in this case that they would be treated as a single offence and thus attract a reporting period of eight rather than 15 years.
 Child Protection (Offender Reporting) Act 2004 (Qld) s 16.
 Ibid s 18.
 Ibid s 19.
 Ibid s 20.
 Ibid s 22.
  1 Qd R 200, 207.
- Published Case Name:
R v Rogers
- Shortened Case Name:
R v Rogers
 QCA 192
Holmes JA, Fraser JA, Henry J
19 Jul 2013
- White Star Case: