R v ZB[2021] QCA 9

SUPREME COURT OF QUEENSLAND

1. [1]
   SOFRONOFF P:  I agree with McMurdo JA’s conclusions but for slightly different reasons.
2. [2]
   Section 12(1) of the Penalties and Sentences Act 1992 (Qld) confers a discretion upon a sentencing judge to record or not to record a conviction.  Section 12(2) provides that, in exercising the discretion, the court “must have regard to all circumstances of the case” including the nature of the offence, the offender’s character and age, and the impact that recording a conviction will have on the offender’s economic or social wellbeing and chances of finding employment.  Section 12(3) provides that a “conviction without recording the conviction is taken not to be a conviction for any purpose”.
3. [3]
   The exercise of the discretion is circumscribed by other provisions of the Act.  For example, a conviction must not be recorded if the court makes orders for the absolute release of an offender or if the court orders a release subject to a recognisance.^[1]  A court must record a conviction if it also orders imprisonment or if it makes an intensive corrections order.^[2]  The court may record a conviction or decline to do so when it makes other orders, such as imposing a fine or ordering community service.^[3]  Relevantly, the court has a discretion not to record a conviction when it orders probation.^[4]
4. [4]
   The purpose of recording a conviction is not stated in the Act.  There are several consequences which follow the recording of a conviction.  Some statutes require a person to disclose the person’s criminal history on certain occasions.  An example is s 116 of the Adoption Act 2009 (Qld) pursuant to which the Chief Executive may, on a consideration of an adoption application, seek information about a person’s “police information”, which is defined to include a person’s “criminal history”.  The latter expression is defined to include a person’s convictions and all charges that have been brought against the person.^[5]
5. [5]
   There can be other consequences.  The Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) requires “reportable offenders” to report “personal details” periodically to the Commissioner of Police.^[6]  A reportable offender is a person who has been convicted of certain specified offences.  The applicant is a reportable offender because he has been convicted of an offence against s 228D(1)(b) of the Criminal Code (Qld).  “Personal details” are defined by reference to a lengthy list of information which includes the offender’s name, date of birth, distinguishing marks on the offender’s body, premises where the offender generally resides, children with whom the offender has regular contact, employment, details about any motor vehicle used by the offender and so on.^[7]
6. [6]
   While the most immediate result of recording an offender’s conviction is to make the fact of conviction known to those who have a legitimate interest in knowing about it, that cannot be the only purpose of recording a conviction.  Section 12(2)(a) of the Penalties and Sentences Act makes the “nature of the offence” a factor to which a sentencing judge must have regard.  In so doing, the legislature has reflected the notion that in some cases the offence is so grave that it is right that the offender’s crime be noted officially as part of the community’s denunciation of the commission of the offence.  Such a denunciation is a balancing reaction to the effect of the offence as an insult to the common good.  It acts as a vindication of the community’s trust in order according to law.  For this reason, there are cases in which it would be unconscionable for a court to allow an offender to affect that he or she has not been convicted when the truth of the matter is that the offender has, as a matter of fact, been found guilty by a court of a very serious crime.
7. [7]
   In such ways the recording of a conviction is of benefit to the community.
8. [8]
   Section 12(3) provides that a conviction without recording a conviction “is taken not to be a conviction for any purpose”.  The conviction is nevertheless entered in the records of the court and in the offender’s criminal history.^[8]  However, the entry of the conviction in the person’s criminal history is only for very limited purposes, including an appeal, proceedings for the same offence and proceedings for a subsequent offence.^[9]  Section 5(2) of the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) provides that, subject to certain exceptions, a person is not required to disclose for any purpose a conviction that is not a part of that person’s criminal history.
9. [9]
   The decision not to record a conviction thus denies the community the benefit of the information that would otherwise be available when it might be relevant to an assessment of the offender’s character.  The renunciation of these benefits conferred by the recording of a conviction is not for nothing.  The benefit is foregone because a sentencing judge has decided that, in the circumstances of the case, it is to the greater benefit of the community to afford the offender the privilege of non-disclosure.  Incidentally the offender also enjoys the personal benefit of this privilege but that is not the point of making the order.
10. [10]
    A sentencing judge must consider the potential benefits and detriments to the community of adopting either course.  That is what the opposing factors stated in s 12(2) of the Penalties and Sentences Act require.  The nature of the offence might itself preclude a decision not to record a conviction.  It is for this reason, for example, that the Act provides that a conviction must be recorded in all cases in which a sentence of imprisonment is imposed.  This must be so because in any case in which an offender is sentenced to imprisonment the offence must have been of such a nature that not recording a conviction cannot sensibly be in contemplation.  However, as is implied by the factors that are identified in s 12(2)(b) and (c), the offender’s subjective circumstances so far as they relate to the offender’s future prospects are also significant matters.  They raise for consideration whether the promise of future rehabilitation calls for and justifies affording the offender the advantages that flow from not recording a conviction.  To put it another way, the question is whether the community will be better served by not placing the obstacles created by a recorded conviction in the path of the offender towards rehabilitation.  The issue is not one of tenderness to the offender.
11. [11]
    Consequently, once it is decided that an offender’s case is one that is prima facie apt for probation, a question will arise whether the prospects of rehabilitation offered by the probation process might be unduly jeopardised by the possible effect that the recording of a conviction might have upon the offender’s chances of finding employment and upon the offender’s social and economic well-being, which might include the effect upon the offender’s self-confidence after the end of the criminal justice process.  It can easily be envisaged that a conviction might be recorded although probation is ordered, for example, because the need for public denunciation of the commission of the offence is so great that the resultant risk of weakening the potential of rehabilitation by recording a conviction must be borne.  Also, an offender’s prior convictions might render not recording a conviction pointless because it offers no benefits while denying information which might be needed.  Other situations can be imagined in which it would be right to order probation while recording a conviction.
12. [12]
    Further, it must be remembered when trying to strike a balance that, in the case of an offender who is ordered to serve probation, pursuant to the Criminal Law (Rehabilitation of Offenders) Act 1986 the publicity effects of the recording of a conviction end after 10 years after which, subject to certain exceptions, the conviction is not to be disclosed and the offender is entitled to deny, even under oath, that the person has “suffered the conviction”.^[10]  The record is, therefore, of limited effect and this limitation is something to be considered when exercising the discretion.
13. [13]
    In the present case, the offence which the applicant committed was a serious one of its own nature and also having regard to the kinds of images actually found in his possession.  However, as the learned sentencing judge found, the applicant was cooperative with police from the beginning.  He pleaded guilty at an early stage and thereby promptly acknowledged his wrongdoing in a public manner.  He is relatively young.  He has no previous convictions and his Honour regarded as a significant mitigating factor the continuing support given to the applicant by his partner, with whom he is in a stable relationship, and by his family.  These last two are not small matters when the nature of the offence is considered because they imply a positive judgment by persons who are in a good position to make that judgment on the basis of intimate information.  The learned sentencing judge made an order for probation that contemplated psychiatric treatment to address the applicant’s tendencies that led to his commission of the offence.
14. [14]
    The prospects of rehabilitation appeared to the learned judge to be good and the Crown has not challenged any of those conclusions.
15. [15]
    In the circumstances of this case, the necessity for recording a conviction, with the consequences that have been described, can only arise because the commission of the offence alone demands it.
16. [16]
    It cannot be said that in all cases of offences against s 228D(1)(b) of the Criminal Code a conviction has to be recorded in the proper exercise of discretion.  Section 12(2) requires a balancing of the stated considerations with the result that factors personal to an offender may well outweigh the nature of the offence as a factor.  In this case, as has been said, the applicant’s past history has been good and his future prospects are also a cause of optimism from the point of view of the community’s interest in reintegrating him into society.  The probation order itself addressed the need for professional therapy to reduce or eliminate the risk of further offending and must be taken to be adequate to do so.  Although it will not always be so, in the particular circumstances of this case, the supervision and monitoring that will happen by way of probation largely negates, or entirely negates, the need for the overlapping and additional monitoring required by the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld).  Further, notwithstanding that the offence is one which must always regarded as serious, the applicant’s evident contrition evidenced by the post-offence behaviour much reduced the need for the public denunciation that is afforded by the recording of a conviction.
17. [17]
    In my respectful opinion, the findings that correctly led to ordering probation meant that there was nothing left in this case that could justify a conclusion that the community would be even better served if a conviction was recorded against the applicant.
18. [18]
    For these reasons I would grant leave to appeal, allow the appeal, set aside the recording of the conviction and, instead, order that no conviction be recorded.
19. [19]
    McMURDO JA:  The applicant pleaded guilty in the District Court to one charge of the possession of child exploitation material.^[11]  He was sentenced to two years’ probation, with a condition that he submit to such medical, psychiatric or psychological treatment as directed by a Corrective Services officer.  His conviction was recorded.  He applies for leave to appeal against his sentence, but only as to the recording of the conviction.
20. [20]
    The material was found when, in August 2019, police executed a search warrant at his house.  Prior to the search commencing, he disclosed to them that there were some “photos on my laptop … photos of girls in bikinis, young ones, probably 8 – 12 years old.”  He added: “I’ve looked them up before, I don’t remember if I’ve stored them.”  He assisted police during the search and provided them with a USB, which he said had “worse content than [on] my computer, with naked kids.”  In all, police located 98 images depicting child exploitation material, 51 of which were still accessible.  About one half of the images were in category one.^[12]  Of the number in more serious categories, there was one depicting a child with a man’s penis in her mouth and another showing a child with a penis partially inserted into her anus.
21. [21]
    A few days after the warrant was executed, police contacted the applicant and asked him to attend at a police station to be interviewed.  He went there on the same day and, in the course of the interview, admitted that the photographs were of “underage kids in sexual acts”.  He told police that he had once used the images for sexual gratification, and that “it would have been during, not to start or finish ... so it might have been to encourage or help or move along … it didn’t work”.  He admitted that he knew that the images were illegal.  He was unable to say why he had the images, but added that his mental health had been “all over the place”.  At the conclusion of the interview he was arrested and granted bail.  He was sentenced six months later.
22. [22]
    At the time that this material was found in his possession, he was aged 25 years, and he was 26 when sentenced.  He had no criminal history.
23. [23]
    The prosecution submitted that an appropriate sentence would involve a period of actual custody.  The sentencing judge was unpersuaded by that submission, on the basis of a number of mitigating circumstances.  His Honour acknowledged the applicant’s co-operation with the police during the search and subsequently, and his early plea of guilty.  His Honour said that the applicant seemed to be a person of good character.  He noted that the applicant had the support of his family and that he was in what seemed to be a stable relationship.  It was also noted by the judge that the applicant was both employed and performing other work, on his own account, on a part-time basis.  None of that work involved children.
24. [24]
    His Honour noted that since being charged with the offence, the applicant had been receiving professional treatment for anxiety.  At that point in his sentencing reasons, the Judge said:

“You have not quite, it seems, confronted directly your attraction – at least at the time of these offences – to images of underage children involved in sexual conduct.  You have addressed anxiety, which does seem to be a matter which, as it continues to be addressed, will either mitigate or remove one of the factors which no doubt contributed to the commission of the present offences.  That is significant, but it is to be noted it is not as significant as someone who might voluntarily undertake treatment specifically and directly intended to address the offences for which the person is to be sentenced.”

25. [25]
    His Honour also noted the character references which had been tendered by the applicant’s counsel.
26. [26]
    His Honour then rejected the prosecutor’s submission, for a custodial sentence, by reference to the decisions of this Court in R v Sykes^[13] and R v Bunton.^[14]  His Honour said:

“[Y]our case seems to me, as I have said, to come closer to the decision in Bunton than to the case of Sykes, upon which the prosecutor principally relied.  In my mind, then, the appropriate order today is to release you on probation, which will see you have supervision and allow the probation office to require you to undergo such courses or treatment as might be necessary, to reduce any risk of you falling into this sort of behaviour in the future.”

27. [27]
    His Honour then turned to the question of whether a conviction would be recorded.  He reasoned as follows:

“To record a conviction will have the negative consequence of requiring you to become a reportable offender, which will require you to report to the police where you live, the car you drive, and all sorts of other things for a period of time.  That is onerous, and I take that into account.  As well, there is a risk – though it is difficult to quantify – that it will inhibit your ability to travel overseas in pursuit of your interest in [the work which the applicant was pursuing on his own account], and it might inhibit your employment opportunities in the future.  I have to balance that against the seriousness of the offence that you committed, whilst also having regard to your otherwise good character.  In my view, the nature of the offence that you have pleaded guilty to, particularly the aspect of some of the images being of an especially abhorrent nature, means that it is appropriate, notwithstanding the negative impacts I have noted, to record a conviction.”

28. [28]
    In that passage his Honour was referring to the consequence for the applicant, of a conviction being recorded, that he would become a “reportable offender” within the meaning of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) (“the ORA”).  This Court has described the obligations upon a person under the ORA as “onerous”.^[15]  The impacts of the ORA on an offender are succinctly described in the judgment of Morrison JA in Bunton.^[16]  The reporting obligations under the ORA continue for a period of five years from the date of the sentence.  A consequence of the recording of this conviction was that the applicant would be under that regime during the period of his probation, and for another three years beyond then.
29. [29]
    His Honour did not reason that a conviction should be recorded so that the applicant would be subject to the ORA.  Rather, his Honour acknowledged that, to an extent, compliance with the ORA would be burdensome, but that this was an acceptable consequence of what he considered was an appropriate order.
30. [30]
    The judge likened the conduct in this case to that in Bunton.  That case involved an offender who was just over 18 years old, when child exploitation material was found on her mobile phone, depicting images of young boys between the age of five and 16 years, posing naked, performing oral sex or engaging in anal intercourse either with other young people or adults.  As in this case, the sentence imposed in the District Court was one of two years’ probation, with a specific requirement that she submit to medical, psychiatric or psychological treatment, as directed.  A conviction was ordered to be recorded in that case.  This Court set that last order aside.  The error of that judge was to overlook the impact of the ORA, which had not been mentioned in the submissions or the sentencing remarks.  That offender had the benefit of a psychologist’s report, which was to the effect that she did not present as a risk to children and that there was no evidence of entrenched paedophilic tendencies.  The Court there noted that the offender would still be supervised in the community, and also that she had been on bail for a period of nearly three years when she was sentenced.
31. [31]
    As the sentencing judge in this case observed, there was no report in his favour in relation to the risk he posed to children, as there was in Bunton.  This was apparently the reason that the judge said that the applicant had not “confronted directly” his attraction, “at least at the time of these offences”, to images of this kind.  However there was no finding that the applicant, when sentenced, was attracted to such material.
32. [32]
    His Honour found that the applicant’s conduct was at least partly attributable to a condition of anxiety, which the applicant had continued to address.  And on the agreed facts, the applicant had not been continuing to view the images; rather, he told police, the images had not aroused him.
33. [33]
    Critically, there was no finding by the judge that the applicant was at risk of committing an offence against a child.
34. [34]
    Ultimately, notwithstanding the many and substantial factors which the judge detailed for not recording a conviction, his Honour concluded that “the seriousness of the offence” was such that it was appropriate to do so.  Yet he had likened the seriousness of this offence to that in Bunton.
35. [35]
    The relevant considerations are those set out in s 12(2) of the Penalties and Sentences Act 1992 (Qld).  A court must have regard to all circumstances of the case, including the nature of the offence, the offender’s character and age, and the impact that recording a conviction will have on the offender’s economic or social wellbeing, or chances of finding employment.  This is an appeal against the exercise of a discretionary power.  In my respectful opinion, his Honour did err in the exercise of this discretion.
36. [36]
    Against all of the reasons which existed for not recording a conviction, the only countervailing factor which the judge identified was what he described as the seriousness of the offence.  Undoubtedly, this was a serious offence, and it is acknowledged that an offence of this kind is not a victimless crime.  Without trivialising the applicant’s offence, however, it must be said that this was not a particularly serious example of an offence of this kind.  At one point, the judge appeared to accept that, likening it to the offence in Bunton.  In my respectful opinion, ultimately his Honour appears to have been so influenced by the abhorrent nature of some of the images, that he characterised the offence in this case as so serious that it outweighed all of the other considerations.  The judge appears to have regarded what he assessed to be “the nature of the offence” as determinative, despite all the other factors.
37. [37]
    I would grant leave to appeal, allow the appeal and vary the sentence imposed by ordering that no conviction be recorded.
38. [38]
    JACKSON J:  I have had the advantage of reading drafts of the reasons for judgment of both the President and McMurdo JA, and I respectfully acknowledge the assistance I have gained from them.  For slightly different, but in many respects overlapping reasons, their Honours would grant leave to appeal, allow the appeal and vary the sentence imposed by ordering that no conviction be recorded.  I agree with those orders and add my own brief comments only to the extent necessary.
39. [39]
    Both the President and McMurdo JA’s reasons show why it was plainly within the discretionary power of the sentencing judge to order that no conviction be recorded.  However, the anterior question that must be answered before this Court can interfere with the contrary exercise of discretionary power by the court below is whether an error in the sentence that was passed of the kind that answers the requirements of House v The King^[17] can be identified.
40. [40]
    McMurdo JA finds such error in the conclusion that the sentencing judge was so influenced by the abhorrent nature of some of the images that the seriousness of the offence outweighed other considerations and so had regard to “the nature of the offence” as determinative despite the countervailing factors.
41. [41]
    The President finds such error in the circumstance that the probation order made by the sentencing judge addressed any need for professional therapy, supervision and monitoring and negated to a sufficient degree any need for monitoring under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), so that the conclusion that the community would be better served if a conviction were recorded was not justified.
42. [42]
    I have given anxious consideration to both views, and also to the closest comparable decision in R v Bunton.^[18]  I note that in Bunton there was expert evidence to support the conclusion that the applicant in that case posed no significant risk to children, whereas there was no evidence of that kind in the present case.  In many cases, in my view, such evidence would be required to prove that the risks are low enough that the conclusion is justified that the community and the offender will be better served if a conviction is not recorded.
43. [43]
    In the present case, however, I agree with the orders proposed by the President and McMurdo JA for the reason that the combination of circumstances discussed by them and by the sentencing judge, having regard to all the circumstances of the case,^[19] did not warrant recording a conviction.  I have hesitated as to whether the opposite conclusion reached by the sentencing judge was unreasonable or plainly unjust so that this Court may infer that somewhere there has been a failure to properly exercise the discretion which the law reposes in a court of first instance.^[20]
44. [44]
    In a case like the present, if no wrong principle or other particular error can be identified, that conclusion must be one that is reached overall.  With some diffidence, I have reached that conclusion.