R v Tyrrell[2022] QCA 157

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P and BOND JA:  We have had the advantage of reading in draft the reasons for judgment of McMurdo JA.  We agree with his Honour’s conclusions in relation to the first and second grounds of appeal, for the reasons which his Honour has given.  However, we respectfully disagree with his Honour’s conclusion that leave to appeal should be granted because the sentences were manifestly excessive.
2. [2]
   The question on which we differ is whether the imposition of a wholly suspended term of imprisonment, and therefore, in compliance with ss 12, 143 and 152 of the Penalties and Sentences Act 1992, the mandatory recording of a conviction, was unreasonable or plainly unjust in this case, such that this Court should infer that in some way there has been a failure by the sentencing judge properly to exercise the sentencing discretion which the law reposes in the court of first instance.
3. [3]
   In order to explain why we would answer that question in the negative, it is necessary that we identify in a little more detail the aspects of the sentencing judge’s reasoning which led to his imposition of a term of imprisonment.
4. [4]
   The sentencing judge recited the agreed facts of the offending, in detail.
5. [5]
   On 24 January 2021, the applicant had responded to an advertisement on a website where people could post advertisements and browse and respond to other users.  The advertisement was posted by a South Australian covert police officer (or CPO) who pretended to be a 37-year-old woman who resided in South Australia.  The advertisement was titled “Life’s Taboo Short”, and the content read “Thirty-seven real female into taboo, love family.”  The sentencing judge found the advertisement was clearly an indication of someone who was into taboo sexual activity and perhaps incest.
6. [6]
   The CPO responded to the applicant’s initial message and the applicant arranged to communicate on an instant messaging app.  The distribution offence was committed during a conversation between the applicant and the CPO on that app on 25 January 2021, details of which were recorded in the agreed statement of facts.  The salient parts of the conversation referred to by the sentencing judge were as follows (abbreviations and misspellings as per original):

7. [7]
   After the conversation the applicant deleted from the chat the image which he had sent.  The CPO took steps to have the Queensland police notified of the applicant’s conduct and that led to the police executing a search warrant on the applicant’s residence.  The applicant co-operated with police and showed them where the child exploitation material was found which formed the basis of count 2, possessing child exploitation material.
8. [8]
   The sentencing judge explained that his detailed recitation of the facts highlighted their seriousness.  He regarded the consideration of general deterrence to be engaged.  His Honour examined the many mitigating factors established by the evidence, including an otherwise good background, very early plea of guilty, co-operation with police and significant psychiatric and psychological factors identified in the medical reports before him.  Having done so, his Honour formed the view that exceptional circumstances existed such that the imposition of a sentence which required actual imprisonment was not required.
9. [9]
   Having reached that position, the sentencing judge turned to address the competing submissions as to the nature of the sentence which should be imposed.  Counsel for the prosecution had submitted that if the sentencing judge found there were exceptional circumstances, the appropriate sentence was one of nine to twelve months imprisonment, suspended for an operational period of two years.  Counsel on behalf of the applicant had submitted that the sentencing judge should impose a fine of between $2,000 and $5,000 without recording a conviction.
10. [10]
    The sentencing judge noted that he had been referred to R v Bunton [2019] QCA 214; R v ZB [2021] QCA 9; and R v Sperling [2021] QCA 40 as comparable cases.  He considered carefully the observations made by Sofronoff P in R v ZB concerning the discretion to record a conviction, including the President’s observations concerning the importance of denunciation.  He noted that each of those cases involved only one count of possession of child exploitation material and regarded the circumstances before him concerning the charge of distribution as the critical distinguishing feature.
11. [11]
    Ultimately his Honour accepted the submission which had been advanced by the prosecution.  He considered that, having regard to all the matters he had identified, the sentence on the distribution count should involve a wholly suspended modest term of imprisonment, with a small sentence of imprisonment being imposed on count 2 to reflect the modest number of images involved.  On count 1, he sentenced the applicant to nine months imprisonment; on count 2, three months imprisonment. Those sentences were to be served concurrently and were to be wholly suspended for an operational period of twelve months.  In structuring the sentence in that way, it seems to us that his Honour took the permissible approach of imposing for the more serious offence, a sentence that properly reflected the overall criminality involved in both offences.  The sentencing judge correctly noted that, having reached the conclusion he had, a conviction had to be recorded.
12. [12]
    The structure of the sentence imposed by the sentencing judge reflected his conclusion that the seriousness of the circumstances of the distribution offence engaged considerations of general deterrence and denunciation, and, in the circumstances of this particular case, those considerations outweighed the mitigating factors and necessitated the imposition of a term of imprisonment, albeit one wholly suspended.  We consider it was within the bounds of a proper exercise of the sentencing discretion to conclude that an order of imprisonment that was wholly suspended was warranted.  We are not persuaded that the sentence was unreasonable or plainly unjust.
13. [13]
    We would refuse the application for leave to appeal.
14. [14]
    McMURDO JA:  On 22 June of this year, the applicant pleaded guilty to offences of the distribution and possession of child exploitation material.  He was sentenced in the District Court to a wholly suspended nine months’ sentence for the distribution offence, and a term of three months, again wholly suspended, for the possession offence.  The operational period in each case was set at 12 months.  He seeks leave to appeal against those sentences upon three grounds.
15. [15]
    The first is that the judge was wrong to consider that the distribution offence was significantly more serious than the other offence, which had the apparent consequence of resulting in the imposition of terms of imprisonment and thereby the recording of convictions.  The second ground is that the judge did not consider, or properly consider, the nexus between this offending and the mental illness from which the applicant suffered, namely a major depressive disorder, which impaired his judgment.  The third ground is that the sentences are manifestly excessive.
16. [16]
    The applicant was aged 64 at the time of the offences, which were committed in early 2021.  He had no criminal history.  He had a creditable work history.  He qualified as a carpenter before joining the police service in Victoria, which he left to join the army at the age of 23.  After seven years he left the army having risen to the rank of Captain.  He owned businesses in rural New South Wales and worked in the IT field.  In his forties, he decided to study law which he did successfully, graduating and practising as a barrister in New South Wales.  He left that profession at the age of 60 for health reasons.  From that point he worked with his then wife in developing her business.  However, that marriage broke down not long before this offending, and from that point he was not working, and he lived in a shed on a property on the outskirts of Brisbane.
17. [17]
    He had suffered from depression and anxiety from the time of his thirties.  The sentencing judge had a considerable number of reports as to his mental illness, including one from a treating psychiatrist and several reports of psychologists.  At least one of those reports explained that depressive symptoms are known to impair decision making, and that it is likely that the applicant was not considering the consequences of his actions when he was engaging in this offending.  In extensive sentencing remarks, the judge did discuss the applicant’s psychological and psychiatric conditions.  The submission that his Honour did not understand the effect of those conditions upon the occurrence of this offending cannot be accepted.
18. [18]
    The offence of distribution was committed when the applicant responded to an advertisement on the website Locanto.  It had been posted by a covert police officer in South Australia purporting to be a 37 year old woman.  The advertisement was titled “Life’s taboo short” and the advertisement read “37 real female into taboo.  Love family”.  A conversation followed on WhatsApp, in the course of which the applicant sent an image depicting a young teenage girl being anally penetrated by an adult male.  The applicant deleted the image from the chat shortly after sending it.
19. [19]
    During the conversation, the applicant disclosed that he lived in Brisbane.  South Australia Police passed on this evidence to Queensland Police.  A few weeks later, police executed a search warrant at the property where the applicant lived.  He agreed that he had had a conversation with an adult female from South Australia during which he had sent the image.  He disclosed that the image was still stored on the hard drive of his laptop.  He showed police the image on his laptop and also another folder containing child exploitation material which depicted naked pre-pubescent female children.  He was arrested, charged and released on bail.
20. [20]
    A forensic examination of his computer revealed images and videos which were classified according to the Interpol categorisation.  Categories 1 and 2 refer to material depicting real children, category 1 being more serious and depicting a child under the age of 13 years involved in a sexual act or witnessing a sexual act.  Categories 3 and 4 refer to material which is not illegal but which may contain clues or identifying information to assist in investigations in relation to illegal material.  Four images were located, of which three were placed in category 1 and the other, which was that distributed to the police officer, was in category 2.  Police also found a short video recording which was in category 1.
21. [21]
    The applicant entered what the judge described as a very early plea of guilty.  After being charged, the applicant completed the sex offenders’ program, and the judge said that the applicant had done everything he could have done since his arrest towards his rehabilitation.  He displayed insight and carried what the judge described as tremendous shame.  The judge considered that the applicant would never do this again.  He said that the applicant did not need supervision.  The judge accepted that, in the terms of s 9(4)(c) of the Penalties and Sentences Act, the circumstances of this case were exceptional.
22. [22]
    The sentences are said to be manifestly excessive when considered against three comparable cases in this Court: R v Bunton [2019] QCA 214; R v ZB [2021] QCA 9 and R v Sperling [2021] QCA 40.  The judge was referred to those cases, in which no imprisonment was imposed upon offenders who had pleaded guilty to an offence of the possession of child exploitation material.  However the judge considered that the present case was more serious by reason of the distribution offence, which he considered required a term of imprisonment, albeit one which was wholly suspended.  He then said that the applicant should be sentenced to a short sentence on the possession charge to reflect what he described as the modest number of images.
23. [23]
    Undoubtedly, the applicant’s case was more serious because he had committed the distribution offence.  What is revealed by the transcript of the applicant’s conversation with the police officer is appalling, but such is the nature of an offence of the distribution or possession of material of this kind.  Relatively speaking, the circumstances of the distribution offence could properly be described as of a low level for this offence.  Moreover, it is significant that the distribution offence, under s 228C of the Criminal Code, carries the same maximum penalty (14 years’ imprisonment) as the possession offence, under s 228D of the Code.
24. [24]
    In my opinion, the outcome of terms of imprisonment for these offences, with all of the mitigating factors, was manifestly excessive.
25. [25]
    I would grant leave to appeal, set aside the sentences imposed on counts 1 and 2, resentence the applicant on count 1 by ordering him to pay a fine of $3,000, order that on count 2 he be fined the sum of $3,000 and ordering that no conviction be recorded on each count.
26. [26]
    In my view, the discretion not to record a conviction should be exercised in this case given the low level of offending, the absence of any criminal history, the circumstances of his rehabilitation and remorse and the potential impact upon him for any further work.