R v HCJ[2022] QCA 130

[2022] QCA 130

COURT OF APPEAL

MORRISON JA

DALTON JA

FLANAGAN JA

CA No 263 of 2021

DC No 95 of 2019

THE QUEEN

v

HCJ Applicant

BRISBANE

THURSDAY, 28 JULY 2022

JUDGMENT

1. [1]
   DALTON JA:  This is an application for leave to appeal against sentence from a sentence imposed by the President of the Childrens Court.  I would dismiss the application for the following reasons.
2. [2]
   The applicant was convicted after trial of the penile rape of a 13-year-old girl.  He was at that time aged 14.  The sentence imposed was one of three years probation and, as well, there was a conviction recorded.
3. [3]
   The ground of appeal is that the sentence was manifestly excessive.  No particular error was identified in the reasons of the primary judge, that is, that the point taken was simply a House v The King submission that the sentence was manifestly excessive so as to indicate that the primary Judge’s discretion had miscarried.  In particular, the argument before us was that the imposition of three years probation together with the recording of a conviction made the sentence manifestly excessive.
4. [4]
   In imposing the sentence below, the primary judge referred to the recording of the conviction in a separate part of her reasons.  She referred to the relevant case law, including R v Patrick (a pseudonym); R v Patrick (a pseudonym); Ex parte Attorney-General (Qld) (2020) 3 QR 578 and R v KU & Ors; Ex parte Attorney-General (Qld) (No 2) [2011] 1 Qd R 439.  She noted the age of the defendants in KU included 13 and 14 year-olds.  In deciding to record a conviction as well as impose a probation order, her Honour referred to the case law earlier mentioned and said:

“That is not to say that inevitably convictions must be recorded in rape cases where there are juveniles involved.  However, taking into account that this was a penile rape, that the child did protest, ask you to stop and you persisted, her distress afterwards was evident from the evidence given at the trial, and while some of that may be as a result of lack of understanding on your behalf, nonetheless you have not admitted to the offending.  You initially denied any contact at all.  And it is fair to say that there is a lack of acknowledgement of the personal responsibility or personal fault in the offending on this occasion by you.  Given all those factors and given the serious nature of the offence, a conviction is recorded.”

5. [5]
   I would add to the matters referred to by the primary judge that the applicant denied criminal responsibility in the pre-sentence report even after conviction.  I would also mention that there was an assessment, albeit qualified, in the psychological report (16 August 2021) that the applicant is at moderate risk of future sexual offending.
6. [6]
   There is no error apparent to me in the primary judge’s exercise of discretion, and I note that the primary judge was a very experienced judge who had conducted the trial and then the sentence proceeding below.  I think the primary Judge was right to recognise that this was a serious crime and the lack of remorse and wrongdoing by the applicant – see the comments as to this in Patrick.  The case law makes it clear that there is a broad discretion in the primary judge as to whether or not to record a conviction – R v MBQ; Ex parte Attorney- General (Qld) [2012] QCA 202.  I cannot see that the discretion of the primary judge miscarried in this case.  I cannot see that the sentence, including the recording of a conviction, is manifestly excessive.
7. [7]
   MORRISON JA:  I agree.
8. [8]
   FLANAGAN JA:  I agree.
9. [9]
   MORRISON JA:  The order of the Court is that the application for leave to appeal against sentence is refused.