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- Notable Unreported Decision
SUPREME COURT OF QUEENSLAND
R v Sperling  QCA 40
SPERLING, Bradley Luke
CA No 199 of 2020
DC No 2963 of 2019
Court of Appeal
District Court at Brisbane – Date of Sentence: 21 September 2020 (Loury QC DCJ)
DELIVERED EX TEMPORE ON:
9 March 2021
9 March 2021
Fraser and Mullins JJA and Rafter AJ
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – OTHER MATTERS – where the applicant pleaded guilty to one count of possessing child exploitation material (CEM) – where the applicant was fined $2,000 and a conviction was recorded – where the applicant applies for leave to appeal against his sentence in respect of the recording of the conviction – where the sentencing judge took into account the effect of the recent amendment to s 9(4) of the Penalties and Sentences Act 1992 (Qld) in respect of CEM when considering whether or not to record a conviction under s 12 of that Act – whether that was an irrelevant consideration – whether the recording of the conviction should be set aside
Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 5
Penalties and Sentences Act 1992 (Qld), s 9, s 12
R v Bunton  QCA 214, cited
R v Koster (2012) 226 A Crim R 247;  QCA 302, cited
R v ZB  QCA 9, cited
J R Jones with N D Boyd for the applicant
J O’Brien for the respondent
Potts Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent
- MULLINS JA: The applicant pleaded guilty to possessing child exploitation material (CEM) (count 1) and possessing a dangerous drug (cannabis) (count 2) on 21 September 2020. For count 1, he was fined $2,000 and a conviction was recorded. For count 2, he was convicted and not further punished, but no conviction was recorded.
- The applicant applies for leave to appeal against the sentence on two grounds. The first is that the learned sentencing judge erred by taking into account an irrelevant consideration that on 14 September 2020 s 9(4) of the Penalties and Sentences Act 1992 (Qld) (the Act) was amended (the amendment) with retrospective effect. The second ground for the application is that, in the circumstances, the decision to record a conviction, for count 1 was manifestly excessive.
The applicant’s antecedents
- The applicant was 35 years old and married at the time of the offending. He had no prior criminal history. He was able to provide the court with impressive character references and an excellent work history, including in his own business as a franchisee, until he sold his business after his devices were seized by the police. He and his family re-located after the sale of the business.
- On 29 December 2017 the police executed a search warrant at the applicant’s home, when the applicant was on holidays with his wife. During the search, the police located a number of devices throughout the house and also four grams of cannabis seeds that were the subject of count 2. Two of the devices contained CEM. The applicant possessed a total of five unique and accessible videos and a total of four unique and accessible images. The videos were categorised as category 3 videos (which involves non-penetrative sexual activity between adults and children). Three of the CEM images were in the lowest category 1 (which involves children in a sexually exploitative context without being involved in sexual activity) and the other image was in category 2 (which involves children in sexual activity or solo masturbation by a child).
- Almost 18 months later on 7 June 2019, the police contacted the applicant through his legal representatives, he declined to be interviewed, and he was issued the next day with a notice to appear. He remained on bail from his first court appearance until the sentencing.
- The sentencing judge noted the pleas of guilty were early and the matter progressed quickly after the applicant was charged, but the sentence was delayed from the first listing earlier in 2020, as the applicant resided in another State and was unable to attend in person for the sentence.
- The applicant had written a letter to the sentencing judge to explain that he had been aware he had issues with pornography for some time and during 2017 had started reading articles and looking into counselling, but failed to take the first step in seeking help. He explained how the delays in the resolution of the charges had caused great strain and uncertainty for his wife and him, but that he retained the support of his wife. After the warrant was executed, the applicant had counselling with a psychologist and undertook an online offenders program. The sentencing judge accepted that the applicant was remorseful and that he had taken significant steps towards his own rehabilitation.
- The sentencing judge referred to the seriousness of the offence of possession of CEM and that it is not a victimless crime, as real children are exploited in order to create the images and videos. The sentencing judge then stated:
“You knowingly possessed those images and videos and, by doing so, you create the demand for the continued exploitation and corruption of children, often in increasingly depraved ways. That is why general deterrence is of paramount importance to the exercise of my discretion, as is community denunciation. The sentence I impose must deter, more particularly, others from committing this sort of offence and it must act to condemn your possession of it on behalf of the community. The videos and images you possessed were small in number, but included young children involved in sexual activity with adults. And in that respect it was depraved.”
- The sentencing judge observed that the amendment commenced the previous week and that the effect of the amendment is that an offender convicted of a CEM offence must serve an actual term of imprisonment, unless there are exceptional circumstances. The sentencing judge accepted that the applicant did not seek out the subject images that involved children under 16 years, but they came into his possession as a consequence of his seeking out pornographic material that involved children who were 16 or 17 years old that it was lawful to access. The sentencing judge found that there were exceptional circumstances in the low number of videos and images possessed by the applicant which he did not seek out, the delay in the matter proceeding (which was not due to the applicant), the impact the delay had in terms of the applicant’s selling his business and moving in order to protect the name of the business and his employees, and the significant steps undertaken by the applicant towards rehabilitation.
- In respect of whether or not to record a conviction, the sentencing judge noted that account had to be taken of the nature of the offence, the seriousness of the offence that was reflected by the maximum penalty imposed by Parliament and that, unless there are exceptional circumstances, an offender must serve a term of actual imprisonment, the applicant’s character and age and the impact that the recording of a conviction would have upon the applicant’s economic or social wellbeing and chances of finding employment. The sentencing judge noted the applicant was otherwise of good character and was a mature man.
- Before the sentencing judge, both the prosecutor and Mr Jones of counsel on behalf of the applicant had submitted, incorrectly, that the recording of a conviction would have the effect of making the applicant a reportable offender under s 5 of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) (the Offender Reporting Act). (As the applicant was sentenced for a single prescribed offence and the sentence did not include a term of imprisonment, s 5(2)(b)(i) of that Act excluded him from being a reportable offender, whether or not a conviction was recorded for count 1.) The sentencing judge accepted the incorrect submission made by both counsel, when referring to the submission that the applicant’s social wellbeing was said to be impacted because, if a conviction were recorded, the applicant would become a reportable offender under the Offender Reporting Act and that “involves onerous reporting requirements”. The sentencing judge accepted that reporting obligations (or the recording of a conviction) would also impact negatively upon his social wellbeing, because it may affect the applicant’s ability to travel overseas which he may need to do, if he were able to buy another franchise, and it may impact upon his ability to coach any sporting team in which his children may play in the future. The sentencing judge noted the submissions that had been directed at how the recording of a conviction may impact on the applicant’s ability to purchase another franchise, but observed it was unknown whether it would impact in that way.
- The sentencing judge then concluded:
“In the end, however, in my view, the balance tips in favour of the conviction being recorded. Your character and the impact on your social wellbeing are not such as to overwhelm the consideration of the seriousness of the offence, particularly as reflected by recent changes to the Penalties and Sentences Act in relation to such offending.”
The applicant’s submissions
- On the basis the amendment was irrelevant to the consideration of the nature of the offence in considering whether to record a conviction pursuant to s 12(2) of the Act, it is submitted the sentencing judge erred by taking into account an irrelevant consideration and the sentencing discretion ought to be re-exercised. The applicant submits that amendment did not alter the seriousness of the offence, but had the effect of constraining the sentencing judge’s discretion as to the sentence imposed, but not the discretion as to whether or not to record a conviction. In the alternative, the applicant submits that the sentencing judge erred by allowing the serious nature of the offence to overwhelm the balance of the factors which all favoured exercising the discretion not to record a conviction for count 1 and the sentence was manifestly excessive, as a result of the conviction imposed for count 1.
The respondent’s submissions
- The respondent submits that the amendment had a substantive effect by making the imposition of actual imprisonment mandatory which in the ordinary case would affect the minimum sentence imposed. The respondent relies on R v Koster  QCA 302 and the observations made by Holmes JA (as the Chief Justice then was) at  in respect of the effect of an equivalent provision then in the Act. The respondent therefore submits that the amendment was a matter that the sentencing judge was entitled to consider in exercising the discretion whether or not to record a conviction.
Did the sentencing judge err?
- The question of whether or not to record a conviction arises under s 12 of the Act, when the proposed sentence is of a type that permits the exercise of the discretion conferred by that provision. The amendment affected the type of sentence and sentence structure that could be imposed by the sentencing judge, as a sentence other than actual imprisonment could be imposed only if the court were satisfied that there were exceptional circumstances to justify the applicant not serving an actual term of imprisonment. The amendment did not alter the nature of the offence that was committed by the applicant.
- The sentencing judge had taken into account the effect of the amendment and applied the amendment in deciding there were exceptional circumstances to fine the applicant and not impose a sentence involving actual custody. The sentencing judge therefore did err in taking into account the effect of the amendment, when it came to exercising the discretion under s 12.
- This was an example at the lower end of the offending for possession of CEM material, particularly having regard to the circumstances in which the total of 9 images and photographs were not sought out by the applicant. Although the applicant was 35 years old when he offended and not as young as the offenders in R v Bunton  QCA 214 and R v ZB  QCA 9, the factors in favour of not recording a conviction for count 1 that were personal to the applicant, including the steps he took for his own rehabilitation during the delay of almost three years between the search and sentence, otherwise outweighed the nature of the offence in the circumstances of this case.
- It follows that the orders should be:
- Leave to appeal is granted.
- Appeal allowed to the extent only of setting aside the conviction recorded for count 1 and, in lieu, it is ordered that no conviction be recorded for count 1.
- FRASER JA: I agree.
- RAFTER AJ: I agree.
- FRASER JA: The orders of the court are:
- Leave to appeal is granted.
- Appeal allowed only to the extent of setting aside the conviction recorded for count 1 and lieu it is ordered that no conviction be recorded for count 1.
- Published Case Name:
R v Sperling
- Shortened Case Name:
R v Sperling
 QCA 40
Fraser JA, Mullins JA, Rafter AJ
09 Mar 2021
- White Star Case: