HCT v Commissioner of Police[2024] QCA 231

[2024] QCA 231

COURT OF APPEAL

FLANAGAN JA

BROWN JA

MARTIN SJA

CA No 143 of 2024

DC No 254 of 2023

HCT Applicant

v

COMMISSIONER OF POLICE Respondent

BRISBANE

WEDNESDAY, 20 NOVEMBER 2024

JUDGMENT

BROWN JA:  The applicant seeks leave to appeal from a judgment of Judge Wooldridge KC, dismissing an appeal made under section 222 of the Justices Act 1886 (Qld).  Judge Wooldridge heard an appeal against sentence from a decision of Magistrate Bentley, who had sentenced the applicant on 16 August 2023 to nine months’ imprisonment wholly suspended for an operational period of nine months after he pleaded guilty to an offence of carnal knowledge with or of children under 16, contrary to section 215 of the Criminal Code (Qld).

While the discretion of this court to grant leave is unfettered, as the applicant has had the benefit of two hearings, leave is generally only granted where the applicant can establish that there is a reasonably arguable error, and that leave is necessary to correct a substantial injustice to the applicant or there is an important question of principle or matter of public importance raised.  See McDonald v Queensland Police Service [2018] 2 Qd R 612.

The applicant is a 43 year old man.  According to the statement of facts, the offence in question occurred some 20 years ago.  In 2022, when the applicant was 23 or 24, he met the complainant in an internet chat room.  She was 14 years of age.  He subsequently picked up the complainant from school.  She was wearing a school uniform.  He took her to his residence, where they had consensual intercourse.  They subsequently maintained contact for, it appears, some years.  A complaint to the police was made in 2021.

The applicant entered an early plea of guilty and had no prior criminal history.  Judge Wooldridge gave detailed reasons for refusing the appeal of the applicant.  According to the applicant, the District Court Judge made three errors: first, in misquoting the facts in R v L; Ex parte Attorney-General [1996] 2 Qd R 63, and then misapplying the principles in the case with the result that she failed to give proper weight to the applicant’s rehabilitation.  Secondly, in failing to give sufficient weight to the punitive aspects of the reportable offender conditions under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004.  And, thirdly, in placing excessive weight on the principle of general deterrence with respect to the facts of this case.

Save for the first ground, it is not evident that the proposed grounds for appeal raise any ground for finding error in the exercise of the sentencing discretion.  The question of weight given to a consideration in the exercise of sentencing discretion is not a basis for finding specific error under the principles of House v The King (1936) 55 CLR 499.  Error may, however, be inferred if the sentence is unreasonable or unjust.

In my view, leave to appeal should be refused for the following reasons: first, the misstating of facts in relation to L’s case and the age of the complainant involved was not material to her Honour’s decision and did not lead her into error, nor was there any misstatement of principle of the Court of Appeal in L by Judge Wooldridge as to how delay may be relevant to sentencing.  Her Honour correctly stated that in a case such as the present, a failure to take into account relevant delay and the rehabilitation of an offender during the intervening period will be an error of principle in the exercise of the sentencing discretion.  Her Honour did not find that the Magistrate considered delay was irrelevant when sentencing the applicant, having referred to it in her sentence.  That is clearly correct.  In addition, the wholly suspended sentence accords with the fact that the Magistrate had, as she stated, considered the effect of delay and the lack of reoffending by the applicant during that period.  There is no reasonably arguable error in relation to ground 1 of the appeal.

Secondly, Judge Wooldridge in considering the appeal and whether the sentence was manifestly excessive did specifically take into account the effect of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004, and that the applicant as a result of the sentence imposed was a reportable offender.  Her Honour accepted that it is a further punitive effect to the appellant, particularly given the time since the commission of the offence and his otherwise favourable antecedents.  There is no reasonably arguable error in relation to ground 2 of the appeal.

Thirdly, while the passing of time and the applicant’s lack of reoffending made – has made personal deterrence of little significance in – for the purpose of sentencing, that could not be said to be so in relation to general deterrence.  That clearly was relevant, given the nature of the offence involving an underage girl.  It was a matter that relevantly had to be taken into account in determining the sentence.  There is no reasonably arguable error in relation to ground 3 of the appeal, nor is there any substantial injustice if leave is not given.

In order to succeed in an appeal under section 222, paragraph (2), subparagraph (c), it must not only be shown that there was an error in the decision, but that the sentence was excessive.  See Chakka v Queensland Police Service [2024] QCA 213.  Judge Wooldridge, in carrying out review of the sentence imposed upon the applicant, carried out a careful analysis of relevant authorities and the circumstances of the present case in concluding that the sentence imposed by the Magistrate was not manifestly excessive.  That conclusion was plainly open, notwithstanding the mitigating circumstances in the applicant’s favour.

As to the latter, it is to be noted that the sentence did not provide for time to be spent in custody, notwithstanding section 9(4) of the Penalties and Sentences Act 1992 (Qld).  Further, the operational period of the sentence has not expired, although the applicant remains a reportable offender.  The applicant has not established that there is a reasonably arguable error in relation to her Honour’s decision, nor that the applicant will suffer substantial injustice if leave is not given.  The case does not raise an important question of principle or matter of public importance.  Leave to appeal the applicant’s sentence should be refused.

FLANAGAN JA:  I agree.

MARTIN SJA:  I agree.

FLANAGAN JA:  The order of the Court is that the application for leave to appeal is refused.  Mr Kissick, the Court thanks yourself and your instructing solicitor for appearing pro bono for the applicant in the present case.

MR KISSICK:  Thank you, your Honour.  Thank you.

FLANAGAN JA:  Adjourn the Court.