R v Rodgers[2021] QCA 97

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  I have read the reasons of McMurdo JA and agree with those reasons and the orders his Honour proposes.
2. [2]
   McMURDO JA:  The applicant was convicted, on his plea of guilty, of an offence of the possession of child exploitation material, which was committed in February 2019 when he was 39 years of age.  By that offence, he breached a suspended period of imprisonment which had been imposed in the Magistrates Court in May 2017, for offences of public nuisance and the obstruction of police.  No further action was taken in respect of that breach.  For the subject offence, he was sentenced to a wholly suspended term of imprisonment of 12 months, with an operational period of 12 months.
3. [3]
   Because of that sentence of imprisonment, a conviction had to be recorded.^[1]  Because a conviction was recorded, the applicant became subject to the onerous requirements of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) (“the Reporting Act”).
4. [4]
   The judge described this offence as being at a “relatively low level”.  On his mobile phone, there were four images (two of which were electronic copies of the same image).  One image was in category four and the others in category one, in the accepted categorisation of material in this context.  The judge accepted that the applicant was not in possession of the images for sale or distribution, and that “the level of sophistication and planning was relatively low”.  The images had been created or accessed on three dates in the fortnight prior to police finding this material on his phone.
5. [5]
   There were a number of mitigating circumstances which were referred to by the sentencing judge, which included the absence of any previous sexual offending.  He had not been to prison.  He was in stable employment from which, for some years, he had supported his family.  A conviction for this offence put him at some risk of his employment being terminated.  He had suffered significant shame and was remorseful, consistent with his early plea of guilty and admissions.  He was in a good relationship with his wife, who had provided a letter of her support for him at the hearing.
6. [6]
   At the sentencing hearing, the prosecutor submitted that it was open to the judge to order a wholly suspended term of imprisonment, or a period of probation.  The applicant’s counsel submitted that he should be subject to a probation order, with no conviction recorded.
7. [7]
   The applicant applies for leave to appeal against his sentence on the ground that it is manifestly excessive.  At the heart of his case is a concern that the recording of a conviction might affect his employment and that it will subject him to the requirements of the Reporting Act.  The sentencing judge made reference to each of those considerations, but was unpersuaded by them.  Her Honour observed that, according to recent authorities, considerations of general deterrence and denunciation are of “paramount importance” in sentencing for this offence.^[2]
8. [8]
   Her Honour’s sentencing remarks concluded as follows:

“I have taken into account the impact that recording a conviction would have on you. Under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004, the obligations under that act of being a reportable offender are rightly described by the Court of Appeal as onerous. Nonetheless, you are a mature man with a criminal history, albeit it is a limited history. You have had convictions recorded in the past and you committed these offences in breach of a suspended sentence. You are not a youthful first time offender with no criminal history who has undergone considerable rehabilitation, as is seen in some of those Court of Appeal decisions referred to.

This has been a particularly difficult decision for me to make, and it is a very sad case, not only for you, but for your wife and for your family. However, balancing all of the relevant considerations, in my view, the appropriate sentence in this case is a sentence of imprisonment, which will necessarily mean a conviction is recorded. However, I intend to wholly suspend that sentence of imprisonment.”

9. [9]
   For the respondent, it is submitted that the reasons demonstrate that her Honour had regard to all relevant considerations, and that although a more lenient sentence may have been imposed (an apparent reference to a probation order), the order which was made was within her Honour’s discretionary power.
10. [10]
    In R v Bunton,^[3] Morrison JA comprehensively reviewed the requirements of the Reporting Act and noted previous decisions of this Court which had described them as onerous.^[4]  As his Honour there noted, one of the burdens of the Reporting Act is that any breach of the offender’s obligations renders that person potentially liable to five years’ imprisonment.^[5]
11. [11]
    Of course, the onerous nature of the Reporting Act’s requirements does not call for courts to craft sentencing orders which are calculated to avoid its operation, if, in the individual case, that would serve some proper purpose.  In the present case, however, there was no evident purpose to be served by subjecting the applicant to this regime.
12. [12]
    At one point, her Honour remarked that she had no information to assist her in assessing his risk of re-offending, and whether he posed a risk to children.  However she did accept that he was genuinely remorseful, and that with appropriate counselling, he would have good prospects of rehabilitation.  In my respectful opinion, her Honour overlooked, in that observation, the combination of facts and circumstances which pointed to the absence of a risk of re-offending: the isolated nature of this offence, the support enjoyed by the applicant from his wife, his good character as a parent providing for his family, his excellent work record and the lack of any indication from his past of any propensity to commit offences against children.  In my conclusion, her Honour ought not to have made the orders which she did, when they carried a potential for such serious consequences for him, without being satisfied that there was some particular purpose for the operation of the Reporting Act in his case.
13. [13]
    In my conclusion the appeal should be allowed by setting aside the sentence for this offence, and ordering that no conviction be recorded and that he not be further punished for the offence.  The operational period of his suspended sentence has now passed, and there is no warrant now for the imposition of a probation order.  I would order as follows:

1. Leave to appeal granted.
2. Appeal allowed.
3. Set aside the sentence imposed for this offence on 30 January 2020.
4. Order that no conviction be recorded for the offence and that the applicant not be further punished for it.

14. [14]
    NORTH J:  I agree with the reasons of McMurdo JA and the orders proposed.