R v OAB[2024] QCA 51

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  I agree with Fraser AJA.

2. [2]
   FRASER AJA:  The applicant pleaded guilty to knowingly possessing child exploitation material between 27 October 2021 and 4 November 2021.  As the sentencing judge observed, an effect of s 9(4) of the Penalties and Sentences Act 1992 is that, in sentencing for such an offence, the offender must serve an actual term of imprisonment unless there are exceptional circumstances.  The sentencing judge found that there were exceptional circumstances in the applicant’s case and sentenced him to a wholly suspended term of six months’ imprisonment.  It was ordered that the applicant must not commit another offence punishable by imprisonment within a period of 12 months if he was to avoid being dealt with for the suspended term of imprisonment.  A conviction was recorded.
3. [3]
   The applicant contends that in the particular circumstances of this case the sentencing judge should have acceded to defence counsel’s submission that a probation order was the appropriate sentence and a conviction should not be recorded.  The applicant relies upon three grounds in his application for leave to appeal against sentence: (1) the sentence was manifestly excessive, (2) the sentencing judge impermissibly fettered her discretion in not considering the applicability of sentencing options other than imprisonment, and (3) the sentencing judge erred in not moderating general deterrence, due to evidence of a contributory link between the applicant’s mental health and the offence.
4. [4]
   The applicant was sentenced upon an agreed statement of facts.  He was 50 years old when he offended.  The offending came to light when his wife found images she believed to be of children on a USB in his study.  The applicant told her he had an addiction and would get help.  The applicant’s wife gave the USB to police.  The USB contained 48 images of female children, aged between 12 and 15, posing in a sexual manner.  Two images were of girls with their breasts exposed.  All of the other images depicted girls wearing minimal clothing.  The USB (and the applicant’s mobile phone, which his wife had also given to police) also contained adult pornography.  Police executed a search warrant at the applicant’s house and seized numerous electronic devices.  No additional child exploitation material was found.
5. [5]
   The applicant was aged 52 when he was sentenced.  He had no criminal history.  He had held full-time employment in the construction industry for most of his adult life.  He provided care and support for his wife and two children.  The applicant’s wife was diagnosed with borderline personality disorder and substance abuse issues.  She had been abusive towards the applicant.  Their adult daughter was diagnosed with cerebral palsy and autism spectrum disorder.  Their adult son was diagnosed with autism and was also being treated for gender identity issues.  After the applicant’s offending, the relationship between him and his wife broke down and he also became estranged from his daughter.  He left the matrimonial home.  The applicant nevertheless continued to be the primary source of financial and often practical support for his wife and children.
6. [6]
   There were only two gaps in the applicant’s full-time employment.  First, after he was made redundant a few years before his offending, he provided significant care for the health needs of members of his family during the redundancy period of two and a half years.  Secondly, in February 2022, the applicant’s employer terminated his employment after he voluntarily disclosed the sentence proceedings.  Before the applicant was sentenced, he found employment with a different organisation in the building industry.  He was concerned about the future of his employment if a conviction was recorded.  He also considered that a recorded conviction would inhibit what was for him a potential opportunity for secondment to Queensland government roles.
7. [7]
   The applicant had been consulting a psychiatrist from about a year before he committed the offence.  In December 2020, the applicant was diagnosed with a type of ADHD and a major depressive disorder.  The applicant had become more depressed in recent years, as his wife’s illness and their children’s difficulty took over much of their family life.  He became socially withdrawn and lost confidence.  Compulsive hair pulling and skin picking, were also diagnosed.  At the time of the report, the applicant remained somewhat depressed and anxious, with moderately severe depressive symptoms still present.  The psychiatrist was guarded about the applicant’s prognosis.  The applicant had a degree of resilience, having retained employment and being both the primary income earner and key practical and emotional support for a family who needed support, but his treatment had not produced full remission.  Even excluding the impact of the legal processes, the applicant remained under severe psychological stress with the breakdown of his marriage, conflicts with his estranged wife, and uncertainty about whether he could reconcile with his daughter.  A custodial sentence would likely have a profound impact on the health of the applicant and his nuclear family.
8. [8]
   After the applicant was charged with the offence, his general practitioner referred him to a forensic and clinical psychologist, Dr Madsen.  The applicant attended 19 sessions with Dr Madsen.  Initially Dr Madsen focussed upon assisting the applicant with managing symptoms consistent with an adjustment disorder, with anxiety and depressive features relating to his arrest, the crisis in his marriage, and his departure from the family home.  In relation to the offending, Dr Madsen recorded the applicant’s explanation that over the years he had developed a coping strategy of accessing pornography to regulate his stress and anxiety, he had not sought images of female children, and his accessing of those images had been incidental to his more generalised search for pornography.  Dr Madsen treated the applicant with psychological therapy regarding the applicant’s compulsive pornography use, emotions, and coping strategies.
9. [9]
   Dr Madsen observed that the applicant “presented as a rule-orientated, highly anxious individual who was genuinely motivated to access treatment to assist him with coping and addressing these problematic behaviours”.  Dr Madsen considered the applicant did not require further intervention for those concerns.  His prognosis about the applicant’s ability to manage his risk in the future was positive.  Dr Madsen also reported:

   1. The applicant was remorseful for his offence, having described intense feelings of shame and humiliation in response to the charges.
   2. The applicant had never viewed female children as sexual objects, so struggled to integrate the perception of people, including his adult daughter, that he did.
   3. Apart from the offending, the applicant was a pro-social individual with full-time employment and a supportive role with his disabled children.  He had many characteristics that are protective of future offending.  He did not have an anti-social personality disorder or meet the criteria for psychopathy.  There was limited evidence to suggest the applicant met the criteria for paedophilia.  The applicant’s assessed risk of re-offending was low.  Taken together, there was a comparatively minimal risk of the applicant re-offending.
   4. If the applicant was imprisoned there was a high likelihood he would decompensate and suffer significantly reduced wellbeing.
10. [10]
    Ms Addison, a forensic and clinical psychologist, interviewed the applicant and conducted various risk assessments, to which she referred in a pre-sentence assessment report.  Ms Addison expressed opinions that:

    1. The applicant’s history illustrated a “chronicity of problems with mental health and concurrent pornography use over a lengthy period of time”.  When he was “overwhelmed by his life circumstances” he formed the “dysfunctional habit of using adult pornography as his primary method of regulating his emotions and seeking pleasure”.  The “nature of the applicant’s repeated and somewhat compulsive access to pornography…and the eventual illegal trajectory that it took, was likely in part due to the processes of habituation and desensitisation to sexual imagery whereby [the applicant] normalised what he saw, which diminished both the impact of the [child exploitation material] and his appreciation of the consequences to the children in the images”, and that this “allowed for an erosion of the boundary between accessing legal adult pornography and [child exploitation material]”.

    2. There was no evidence the applicant is sexually deviant or has any specific sexual interest in children.  He has suffered from “clinical levels” of compulsive pornography use, which contributed to poor decision-making and an erosion of boundaries in terms of the current offending.  He consistently attended relevant health professionals, was compliant with his medication, showed improvement in his insight into the factors that contributed to his offending, showed evidence of implementing relevant changes to reduce the risk of any future repeat of his behaviour, and was remorseful and accountable for his behaviour.
    3. Taking into account numerous protective factors described in detail in the report, the applicant’s risk of re-offending was “low and non-imminent”.  Specific criminogenic treatment was not necessary to avoid a repeat of the criminal behaviour of someone in that risk category, but despite an improvement in the stress from the applicant’s family situation, and given the inevitability of ongoing stressors, the applicant “could benefit from continued intervention to consolidate gains he had made in treatment to date”.
11. [11]
    At the sentence hearing it was submitted for the Crown that a head sentence in the range of six to nine months imprisonment was open, but it was also open that the sentence might be suspended.  Defence counsel submitted that no conviction should be recorded and factors mitigating against imprisonment would be better served by a period of probation with appropriate conditions to ensure the applicant continued with psychological treatment.
12. [12]
    The sentencing judge accepted that the applicant had been of good character, other than in his offending, and summarised the reports of Dr Geffen, Dr Madsen and Ms Addison.  Those summaries referred to their opinions about the applicant’s low risk of recidivism and, in relation to Dr Madsen’s opinion, included a reference to the applicant having developed a risk management plan.  The sentencing judge observed of Ms Addison’s report that it “indicates that your access to pornography is a dysfunctional method of coping with chronic life stresses, including primary responsibility for managing multiple disabilities of your children and the mental health issues of your wife”.
13. [13]
    The sentencing judge accepted that the nature of the images in cited sentencing decisions – R  v Jones^[1], R v Verburgt^[2], and R v Tyrrell^[3] – was very different, and that the images in the applicant’s case were less serious than those in R v Sperling.^[4]  The sentencing judge recorded but did not express a view about a submission by defence counsel that the exceptional circumstances in the applicant’s case were greater than those in Sperling.  The sentencing judge had regard to the sentencing purposes of rehabilitation, general deterrence, and denunciation.
14. [14]
    The sentencing judge observed that the principles in s 9(2)(a) of the Penalties and Sentences Act, that a sentence of imprisonment should only be imposed as a last resort and a sentence that allows the offender to stay in the community is preferable, do not apply in sentencing for a child exploitation material offence.  The offender must serve an actual term of imprisonment unless there are exceptional circumstances.  (Those observations record effects of the Penalties and Sentences Act, s 9(4)(b) and (c).)  The sentencing judge also referred to the requirement to have regard to s 9(6) and (7) of that Act and remarked that it was primarily s 9(7) which must be taken into account in this case.
15. [15]
    The essence of the sentencing judge’s reasons for the sentence appears in the following passage (in which I have added the numbering):

“The submissions made [by defence counsel] were that [1] the nature of the images were at the lower end of the nature of offending in that they were adolescents, and, other than two images, the images showed children fully clothed and that they were not participating [in] any sexual acts; [2] that there is a relationship between your mental health, your accessing adult pornography and the accidental access of these child images.  However, I do accept that you were receiving support for your mental health concerns prior to you accessing these images.

I accept that you have taken steps towards your rehabilitation, and I have also had regard to the opinions expressed in exhibits 2 and 4 from Dr Geffen and Ms Addison about your risk of further offending.  This offending is [of] a very serious nature.  Real children are exploited when this offending occurs.  Whilst it is submitted that you did not seek these images out, they were saved to a USB.  I have had regard to the fact that if sentenced to a term of imprisonment, you will become a reportable offender.

I am satisfied that there are exceptional circumstances which mean that you are not required, in the present circumstances, to serve a period of actual custody, having regard to your low-risk offending, the remorse that you have expressed to both Mr Madsen and your wife, that you have engaged in counselling and intend to continue to engage, that you are otherwise of good character.  However, you are a mature man.”

16. [16]
    The applicant submits that the sentencing judge did not take into account the uncontroversial evidence supporting defence counsel’s two submissions.  The respondent submits that the sentencing judge’s remarks convey that both submissions were accepted.  It is not necessary to discuss the argument about defence counsel’s first submission, because the sentencing judge had earlier characterised the relevant images as being “less serious than those in Sperling”, in which the Court characterised the offending as being “at the lower end” of offending of this nature.
17. [17]
    As to defence counsel’s second submission, the respondent accepts that Ms Addison’s evidence made relevant the principles expounded in R v Verdins, Buckley and Vo.^[5]  Those principles include that impaired mental functioning may reduce an offender’s moral culpability, thereby affecting the just punishment for the offence and reducing the significance of denunciation, that such a condition also could bear upon the kind of sentence to be imposed, and that it also could moderate or eliminate general deterrence as a sentencing consideration.  The applicant does not submit, and I would not accept, that the evidence in this case of an indirect link between the applicant’s mental health and his offending could eliminate denunciation or general deterrence as factors of significance in this sentence.  It is not controversial in this application, however, that the professional evidence about the applicant’s mental health justifies some moderation of the significance of denunciation and general deterrence for the sentence.
18. [18]
    The applicant’s argument that the sentencing judge disregarded defence counsel’s submission upon that topic is consistent with the contrast between the absence of any expressed finding about it and the expressed findings about the applicant’s steps towards his rehabilitation and the expert opinions about his risk of further offending.  It is also consistent with the fact that the sentencing judge’s remark that “[t]his offending is [of] a very serious nature” is not accompanied by any reference to the indirect relationship between the applicant’s mental health and his offending.  More persuasively, the applicant relies upon the fact that the relationship between the applicant’s mental health and his offending is not amongst the matters found by the sentencing judge to amount to exceptional circumstances.
19. [19]
    The respondent submits that the sentencing judge did accept defence counsel’s second submission, but attributed reduced weight to the link between the applicant’s mental health and his offending on the ground that the offending occurred despite the mental health treatment the applicant had received before he offended.  This is a plausible meaning of the sentencing judge’s remark about defence counsel’s second submission.  I would accept the respondent’s submission for that reason, because it is consistent with the apparent acceptance of defence counsel’s first submission, and also because a reduction of the weight of the link between the applicant’s mental health and his offending explains why the sentencing judge did not include reference to that link as a matter contributing to the exceptional circumstances of the case.
20. [20]
    Acceptance of the respondent’s submission, however, does not answer the applicant’s contention in ground 3 of the application.  There is no evidence that before the applicant offended Dr Geffen was aware of, or attempted any treatment to resolve, the applicant’s compulsive behaviour.  Upon the evidence accepted by the sentencing judge, it was only after the applicant offended when, consistently with the applicant’s impromptu confession to his wife that he had an addiction and needed help, the applicant embarked upon the extensive and ultimately productive course of psychotherapy with Dr Madsen directed to resolving the applicant’s compulsive behaviour.  The absence of any relevance of Dr Geffen’s treatment to the applicant’s compulsive behaviour is also suggested by the fact that, whilst Dr Geffen remained guarded about his prognosis in relation to the applicant’s mental health conditions, Dr Madsen and Ms Addison considered that (after the treatment by Dr Madsen) the applicant presented a low risk of reoffending.  In these circumstances, the fact that the applicant had offended after having received treatment from Dr Geffen could not justify attributing any less weight to the link between the applicant’s mental health and his offending than the evidence of that link otherwise deserved.
21. [21]
    Accordingly, ground 3 should be upheld, with the consequence that the Court must exercise the sentencing discretion afresh.
22. [22]
    A person who commits this offence contributes to the criminal market in child exploitation material for which real children are sexually exploited.  That this offence must be regarded an inherently serious is also required both by the maximum penalty of 14 years’ imprisonment and by the statutory requirement for an offender to serve time in custody unless there are exceptional circumstances.  It is also necessary to bear in mind, however, that the maximum penalty is reserved for “the worst category of cases”^[6] or “the worst possible case”.^[7]  This case is very far distant from such a case, and where exceptional circumstances are found to exist, the statutory range of available sentences comprehends a sentence which does not include any punishment or the recording of a conviction.
23. [23]
    To the collection of matters found by the sentencing judge to constitute exceptional circumstances, I would add a reference to the link between the applicant’s mental health and his offending which, as I have mentioned, justifies some moderation of the significance of denunciation and general deterrence for the sentence.  Exercising the sentencing discretion afresh, I agree with the sentencing judge that in this case there are “exceptional circumstances” within s 9(4)(c) of the Penalties and Sentences Act such as to allow for a non-custodial sentence.  The respondent did not contend to the contrary.
24. [24]
    The sentencing judge considered it is primarily s 9(7) of the Penalties and Sentences Act which must be taken into account in the formulation of the just sentence in this case.  That is so because the matters listed in s 9(6) which are relevant to the applicant’s child exploitation material offence are repeated in s 9(7), a provision which is specifically directed to such offences.  Section 9(7) relevantly provides:

“(7) In sentencing an offender for a child exploitation material offence, the court must have regard primarily to –

1.  … the nature of any material describing or depicting a child that the offence involved, including the apparent age of the child and any activity shown; and

…

2.  the need to deter similar behaviour by other offenders to protect children; and

3.  the prospects of rehabilitation including the availability of any medical or psychiatric treatment to cause the offender to behave in a way acceptable to the community; and

4.  the offender’s antecedents, age and character; and

5.  any remorse or lack of remorse of the offender; and

6.  any medical, psychiatric, prison or other relevant report relating to the offender; and

7.  anything else about the safety of children under 16 the sentencing court considers relevant.”

25. [25]
    As to (a), the sentencing judge characterised the images possessed by the applicant as being less serious than the images in Sperling.  Sperling possessed five videos, which depicted non-penetrative sexual activity between adults and children, and four images, one of which involved either children in sexual activity or solo masturbation by a child and the other three of which involved children in a sexually exploitative context without involvement in sexual activity.  Each item of that material was either significantly more serious or very much more serious than any of the images possessed by the applicant.  Notwithstanding that the applicant possessed many more images, in my opinion the objective seriousness of the applicant’s offending overall is at a lower level than the offending in Sperling.  As to (b), general deterrence has a reduced significance in this case for the reasons already mentioned in relation to ground 3 of the application.  As to (c)–(e), the material suggests the applicant has very good prospects of rehabilitation, he is a mature adult with no previous convictions who has worked in full employment for most of his adult life and, otherwise than in this offending, is of good character.  He has demonstrated remorse.  As to (f), Dr Madsen’s report includes an opinion that the applicant does not require further intervention for the relevant concern, but Ms Addison’s report suggests that confidence in the applicant’s full rehabilitation would be promoted by the probation order the applicant seeks.  Subject only to the consideration discussed in [32] of these reasons, nothing in the material suggests that anything else about the safety of children might be relevant in this case in terms of (g).  Overall, the relevant circumstances favour substantial leniency in the applicant’s sentence.
26. [26]
    In three of the four sentencing decisions cited by the sentencing judge – Jones, Verburgt and Tyrrell – the child exploitation material included material of a much more serious character than in this case.  That and other differences between the circumstances of this case and the circumstances of each of those other cases render them of little value as comparable sentencing decisions.
27. [27]
    Sperling is useful as a yardstick for the just and appropriate sentence here.  In that objectively more serious case, the offender was fined $2,000 and a conviction was recorded for his offence of possessing child exploitation material.  On appeal, the Court re-exercised the sentencing discretion afresh for specific error and set aside the order that a conviction be recorded.  Like the applicant, Sperling had not sought out the child exploitation material, but occasioned upon it when seeking adult pornography.  He was also a mature man (he was 35 when he offended) with an otherwise excellent character and work history, he entered an early plea of guilty, he was remorseful, and he had taken significant steps towards his own rehabilitation during the period between the discovery of his offending and sentence.  The Court regarded Sperling’s offending as being at the lower end of offending by possession of child exploitation material, and considered that the factors in favour of not recording a conviction outweighed the nature of the offence.
28. [28]
    Consistently with that yardstick sentence in a more serious case, I conclude that a term of imprisonment, which would necessarily require a conviction to be recorded, is not a just and appropriate sentence for the applicant’s offending and his personal circumstances.  Notwithstanding Dr Madsen’s opinion that the applicant does not require further intervention, in light of Ms Addison’s opinion that continued intervention might consolidate gains the applicant has made in treatment to date, I would accept the applicant’s contention that a two-year probation order should be made.
29. [29]
    The remaining question is whether a conviction should be recorded.  Section 12(2) of the Penalties and Sentences Act provides that, in considering whether or not to record a conviction, 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.  In R v ZB,^[8] Sofronoff P described purposes and effects of recording a conviction, and the nature of the exercise required by s 12(2) of the Penalties and Sentences Act in deciding whether a conviction should or should not be recorded.  Sofronoff P observed that s 12(2) of the Penalties and Sentences Act requires sentencing judges to consider the potential detriments to the community of adopting either course.  Relevantly to the present case, Sofronoff P observed that “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 wellbeing”.^[9]
30. [30]
    In light of the otherwise productive and blameless life lived by the applicant, his mature age does not favour recording a conviction.  Reference to the applicant’s previous experience of losing his employment apparently as a result of disclosing his offending serves to illustrate the risk that recording a conviction might result in him losing employment, with potentially disastrous consequences for his mental health.  In that way, recording a conviction could pose a significant risk to the applicant’s social wellbeing as well as his economic wellbeing.
31. [31]
    The inherently serious nature of the offence favours recording of a conviction, but the combined effect of the low level of the applicant’s example of the offence, the favourable assessment of the applicant’s risk of recidivism, the potentially serious adverse consequences of recording a conviction, and the contribution of the applicant’s mental health condition to his offending, support the view that a conviction should not be recorded.
32. [32]
    Whilst not recording a conviction would make it more difficult for those in care of children who might come in contact with the applicant to find out about his past offending, the significance of that consideration in favour of recording a conviction is weakened by the absence of any finding of a risk of paedophilic behaviour, the positive evidence of a low risk of recidivism and the circumstance that the probation order sought by the applicant will to some extent replace the monitoring to which the applicant would be subject under the Child Protection (Offender Reporting and Offender Prohibition Order) Act if a conviction were recorded.
33. [33]
    Balancing the considerations expressed in s 12(2), the inherently serious nature of the offence committed by the applicant is in this case overwhelmed by the factors favouring the exercise of the discretion not to record a conviction.
34. [34]
    I propose the following orders:

1. Grant the application for leave to appeal.
2. Allow the appeal.
3. Set aside the sentence and orders made in the District Court and instead make the following orders:
   1. a.
      Upon the applicant’s legal representative undertaking to the Court that the explanation required by s 95 of the Penalties and Sentences Act 1992 has been given to the applicant and that the applicant has agreed to the following probation order being made and has agreed to comply with that order, order pursuant to s 92(1)(a) of the Act that the applicant be released under the supervision of an authorised corrective services officer for a period of two years.
   1. b.
      The applicant is to report within two business days to an authorised corrective services officer at the Probation and Parole Office at Brisbane North.
   1. c.
      It is an additional requirement of this probation order under s 94 of the Act that the applicant must:

1. submit to ongoing psychiatric treatment with a qualified psychiatrist and comply with any treatment recommended by the psychiatrist; and
2. submit to ongoing psychological treatment with a qualified psychologist and comply with any treatment recommended by the psychologist.

1. d.
   A conviction not be recorded.

35. [35]
    KELLY J:  I agree with the reasons of Fraser AJA and with the orders proposed by his Honour.