Reid v Commissioner of Police[2018] QDC 83

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 18 July 2017, in the Magistrates Court at Brisbane, the appellant pleaded guilty to one count of using the internet to procure a child under 16 years of age. This is an offence against s 218A of the Criminal Code (Qld). 

2. [2]
   The appeal has been brought by the appellant on the basis that there were errors of law made by the sentencing magistrate and the sentence imposed was manifestly excessive.

3. [3]
   For the reasons set out below, the appeal should be allowed.

Nature of s 222 appeals

4. [4]
   The appeal is by way of rehearing of the evidence. Section 222(2)(c) of the Justices Act 1886 (Qld) provides that where a defendant pleads guilty, an appeal can only be brought on the sole ground that a fine, penalty or punishment was excessive or inadequate. 

5. [5]
   This court is empowered to intervene:

“… only if the sentencing discretion miscarried, either by specific error (such as acting upon a wrong principle, mistaking the facts, taking into account irrelevant circumstances or failing to take into account relevant circumstances) or by imposing a sentence which is “unreasonable or plainly unjust” such as to demonstrate that the sentencing discretion must have miscarried even though no specific error can be identified: House v The King (1936) 55 CLR 499 at 505.”^[1]

6. [6]
   In other words, a mere difference of opinion about the way in which the discretion should be exercised is not a sufficient justification for review. ^[2] In the recent Court of Appeal decision of R v Callow[3] at [36], Morrison J reinforced what Gleeson CJ, Gummow, Hayne and Callinan JJ said in Markarian v The Queen[4]:

“Furthermore, there is no one single correct sentence.  Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the relevant statutory regime.  ”

7. [7]
   In referring to Markarian, Boddice J said in R v Frith[5] at [35]:

“In any event, that the sentence imposed on the applicant was higher than imposed in another factual circumstance does not establish manifest excessiveness.  A particular fact situation does not support a single correct decision.  The sentencing discretion involves an allowance of flexibility in the exercise of that discretion.  ”

Maximum penalty and sentence imposed

8. [8]
   The maximum penalty for the offence is ten years imprisonment. The sentence that was imposed by the learned Magistrate was 12 months imprisonment with a parole eligibility date of 18 August 2017. This meant that he was required to spend a month in custody before being eligible for parole.

9. [9]
   On 21 September 2017, the appellant was successful in an application for bail. He had served 65 days in custody.

Sentencing framework

10. [10]
    The Penalties and Sentences Act 1992 (‘the PSA’) creates the regulatory framework which is relevant to this appeal.  The purposes of the PSA are set out in s 3.  Pursuant to s 3(3), they include providing for a sufficient range of sentences for the appropriate punishment and rehabilitation of offenders, and in appropriate circumstances, ensuring that protection of the community is a paramount consideration. 

11. [11]
    Part 2 of the PSA sets out the governing principles for sentencing offenders who commit State offences. Pursuant to s 9(4) of the PSA, an offender for an offence of a sexual nature in relation to a child under 16 years, must serve an actual term of imprisonment unless there are exceptional circumstances. An offence against s 218A of the Code is such an offence. This is irrespective of whether the recipient of the communications of the offender, is an actual child under the age of 16 years as opposed to a fictitious person posing as a child of such age.^[6]

12. [12]
    For this reason, the appellant was required to serve an actual term of imprisonment unless there were exceptional circumstances.^[7]  Sections 9(5) and (6) particularise the matters to which the court must primarily have regard to in determining whether such circumstances exist.  A wholly suspended sentence is not one that requires an offender to serve an actual term of imprisonment. 

13. [13]
    Given that the offence is a sexual offence, the sentencing magistrate could fix a parole eligibility date but not a parole release date.^[8]

Circumstances of the offending

14. [14]
    On 20 November 2016, the appellant used his own profile to engage a female person on a mobile social media networking application known as ‘Skout’. It allows people to meet each other using a geolocation service. The appellant’s profile identified himself to be 26 years of age. A profile picture was attached, which depicted the appellant.

15. [15]
    Over a period of some six hours, the appellant engaged in sexualised chat via the instant messaging capability within the Skout application. The conversations were with a police officer posing as a 14 year old female child. An attempt was made by the appellant to arrange for the child to catch a Brisbane City Council public bus to attend near his home address for the purpose of meeting for sexual intercourse. This did not eventuate. He was arrested four days later and made full admissions to police.

Personal circumstances

16. [16]
    The appellant was aged 26 at the date of the subject offending, and is aged 28 today. He experienced a somewhat prejudicial childhood. His father was a heavy user of both alcohol and cannabis. His parents were violent towards each other and his father would on occasions be violent towards him. They separated when he was 11 years of age and he was then in and out of foster care until he was 16 years. He completed schooling until year 10. He had begun smoking cannabis. He continued using illicit drugs until about 2015.

17. [17]
    After leaving school, the appellant worked as a storeman. He has been in receipt of unemployment benefits. He has also worked as a car detailer and in meat packing. He last worked in September 2016. He has a Certificate III in Business and Certificates I-IV in warehousing. He hopes to return to the workforce. His ideal position would be a warehouse manager.

18. [18]
    The appellant was in a relationship at the time of the subject offence. It has been his only serious relationship and has been of some nine years duration. He has no children.

Criminal history

19. [19]
    At the time of the offence, the appellant had a not insubstantial criminal history. It includes offences for dishonesty, public nuisance, wilful damage, common assault and serious assault on a police officer and breaches of bail and probation. He was first sentenced to a term of imprisonment in March 2010. At this time he had been on remand for 71 days. He was imprisoned for four months and it was suspended after 71 days for an operational period of two years. The operational period was extended for a further 12 months on 5 August 2010. The suspended sentence was fully invoked on 27 August 2013 when he was sentenced for a serious assault on a police officer. He was given a parole release date of 27 October 2013. He was next sentenced on 10 October 2015 for committing a public nuisance and assaulting or obstructing a police officer. He was sentenced to four months imprisonment to be served by way of an intensive correction order.

20. [20]
    Convictions for other offences are taken into account because of s 9(2)(f) of the PSA. They shed light on the appellant’s character. While he did not have convictions for like offences of a sexual nature, his criminal history has shown a somewhat continuing attitude of disobedience to the law.

Remorse and co-operation

21. [21]
    The appellant pleaded guilty. It was an early and timely plea. He has shown remorse and acknowledged the unacceptability of his conduct.

Steps towards rehabilitation

22. [22]
    A psychology report was relied on at the sentence hearing. The appellant told the psychologist that he was taking anti-depressant medication to help him better regulate his overall mood. He was also receiving help for a problematic gambling history.

23. [23]
    The appellant reported to the psychologist that after he ceased using cannabis and gambling, he began to increasingly rely on sexual activity to relieve stress. He used internet dating sites to make contact with women whom he could engage in cyber-sex with. He described boredom as the main trigger for this conduct. In relation to the subject offending, once he began messaging the complainant, he became increasingly sexually aroused and felt unable to end the exchange.

24. [24]
    The psychologist considered the appellant may have had an underlying depression and impulse control disorder. He opined that the appellant fell into the high range for the overall risk of general reoffending. He thought this would reduce over time and that the appellant would benefit from stable employment, regular and structured activity, a good support network and demonstrated compliance with any future community based correctional orders. He considered that the appellant’s behaviour patterns show substantial indications of sexual self-regulation deficits in terms of sexual pre-occupation and his reliance on sex as a coping strategy. The psychologist thought that targeted interventions by a suitably experienced forensic psychologist would be required to address this.

Submissions on sentence

25. [25]
    The prosecutor submitted that an appropriate penalty would be a period of imprisonment of 18 months, suspended after serving three to six months, with an operational period of four years. The solicitor for the appellant conceded that a term of imprisonment was warranted but contended that exceptional circumstances existed justifying the term of imprisonment being wholly suspended.

Whether error

26. [26]
    The appellant points to a number of errors as grounds to sustain the appeal. The first is that the learned magistrate did not consider whether any particular circumstances might satisfy ‘exceptional circumstances’ under s 9(4) of the PSA.

27. [27]
    There is no statutory requirement for an express finding that ‘exceptional circumstances’ do not exist before a court can impose a sentence that involves a period of incarceration.[9] The fact that the learned magistrate has omitted to use the phrase ‘exceptional circumstances’ in her sentencing remarks, does not have the consequence that they are inadequate in any relevant sense.  The asserted exceptional circumstances were the subject of extensive submissions by the appellant’s lawyer.  These were the fact that the complainant was a police officer meaning that no child suffered harm, the appellant’s remorse, his co-operation with the authorities and his prospects of rehabilitation.^[10]  These matters were all considered by the learned magistrate.

28. [28]
    Further, in addition to the abovementioned matters, during the course of the sentencing submissions and in handing down the sentence, her Honour considered the other matters she was required to in accordance with ss 9(5) and (6) of the PSA. These were the nature of the offence, the need for personal and general deterrence, the appellant’s age, criminal history and other relevant antecedents as detailed in the psychology report.

29. [29]
    In these circumstances, it is readily apparent that her Honour gave detailed consideration to the presence or otherwise of exceptional circumstances and I reject the first ground of appeal.

30. [30]
    The appellant also complains that when handing down the sentence, her Honour did not specifically refer to s 9(1) of the PSA. Once again, I am not satisfied that the learned magistrate’s omission to make specific reference to this subsection lends any support to the asserted inadequacy of her Honour’s reasons. There was no requirement for her Honour to make particular reference to this subsection. The sentencing remarks were not required to disclose every aspect of the thought processes which led to the conclusions reached by her Honour in the exercise of the sentencing discretion.^[11]   Further, it is clear that the learned magistrate regarded general and personal deterrence as provided for in s 9(i)(c) of the PSA to be the principle considerations in this case. 

31. [31]
    For similar reasons, I also do not accept the appellant’s assertion that her Honour’s reasons were inadequate because she did not refer to any other sentencing options, or the reason why the sentence that was imposed by her Honour was warranted in preference to another sentencing option. Having said this, her Honour referred to the serious nature of the offence, the need for general deterrence and also the need for personal deterrence given that the offending conduct occurred while the appellant was in a committed intimate relationship. It was considered that even balancing the mitigating factors, a term of actual imprisonment ought to be imposed.

32. [32]
    It is appropriate to deal with a further matter. It concerns whether the sentencing magistrate erred in setting a parole eligibility date after the appellant served one month. While it was not raised by the appellant as a ground of appeal, it was the subject of submissions on the hearing of the appeal. Given that it was not outlined in either the Notice of Appeal or the appellant’s written outline, the respondent was given seven days to provide written submissions. No further submissions were provided.

33. [33]
    Pursuant to s 13 of the PSA, a court is required to take a guilty plea into account and may reduce the sentence that it would have imposed had the offender not pleaded guilty. In R v Ungvari[12], White JA said at [31]:

“It is a positive obligation for a sentencing court to take into account a guilty plea and that the primary Judge did.  A reduction may be made having regard to the time at which the offender pleaded guilty or informed the relevant law enforcement agency of his intention to plead guilty.  A recommendation for consideration for early release on parole is included within the definition of “sentence” in s 4 of the Penalties and Sentences Act 1992.  It is important in the overall administration of justice that offenders be encouraged to plead guilty by an appropriate reduction in the sentence which would have been imposed upon them had they elected to go to trial.  Such a course frees resources which would otherwise be devoted to a trial including the availability of courtrooms, the cost of a full trial, and inconvenience to witnesses.”

34. [34]
    A guilty plea can be reflected by ameliorating the sentence imposed in some way. This may involve either setting an early parole eligibility date or suspension of the sentence, or by reducing the head sentence, or by both reducing the head sentence and allowing for early release.^[13]

35. [35]
    A determination of the extent of the discount for a guilty plea involves an assessment of the circumstances and the extent to which it is indicative of remorse and the prospects of rehabilitation. While there is no rule of thumb or arithmetical approach, normally the sentence will be reduced by up to 30 per cent for such a plea.^[14]

36. [36]
    It would seem that the appellant pleaded guilty in the context of a strong Crown case. Nevertheless, it remains the situation that generally an earlier plea will be given greater weight than a late one.^[15]  The appellant co-operated with the authorities and has expressed genuine remorse.  His plea was an important mitigating factor and he was entitled to the maximum available credit for it. 

37. [37]
    The learned magistrate acknowledged the plea of guilty and that she was giving the appellant credit for it. The question is whether adequate allowance was made for it.

38. [38]
    The lawyer for the respondent submitted that the court should infer that the learned magistrate took the guilty plea and other mitigating factors into account in the head sentence of 12 months imprisonment. I am unpersuaded that such an inference can be drawn from her Honour’s sentencing remarks.

39. [39]
    It is acknowledged that setting a parole eligibility date is a matter for the learned magistrate’s discretion. However, I am not satisfied that the plea was accorded sufficient weight in the setting of the parole eligibility date at one month into the period of imprisonment. This is because in doing this, the learned magistrate failed to have regard to the high unlikelihood of an application for parole by the appellant being even considered by the Parole Board within such a short time frame and the potential consequences of that to the appellant, being that he would receive no benefit for his early plea of guilty. This was plainly a material consideration^[16] and I consider the sentencing discretion miscarried, resulting in an error of law. 

40. [40]
    In these circumstances, this Court has the jurisdiction to vary the sentence and impose such sentence as it considers appropriate.^[17]

41. [41]
    The final error contended for on behalf of the appellant is that the sentence was manifestly excessive by reference to comparable matters. It is not necessary to consider this separate alleged error given my findings above.

Re-sentencing

42. [42]
    A new sentence must be imposed, unless it is determined, in the independent and separate exercise of my discretion, that no different sentence should have been imposed.^[18]

43. [43]
    Having regard to the circumstances of the offence, the appellant’s antecedents and the comparables, I do not regard a head sentence of 12 months imprisonment to be outside the permissible range and I do not consider it to be appropriate to interfere with this.

44. [44]
    The issue is whether exceptional circumstances exist as contended for on behalf of the appellant. In R v Schenk, Ex parte Attorney-General (Qld)[19] at [34], Gotterson JA observed:

“It has been accepted by this Court that a finding whether exceptional circumstances exist is but one part of the overall process of “instinctive synthesis” described by McHugh J in Markarian v The Queen whereby each of the factors relevant to the sentence are identified and then weighed before a value judgment is made as to a sentence which is, in all of the circumstances of the case, appropriate.  That task is one which, of course, must be undertaken with a conscious regard for the terms of the relevant statutory provision which requires a finding as to exceptional circumstances to be made.”

45. [45]
    This means that all of the factors relevant to the sentencing of the appellant need to be considered to ascertain whether there are a combination of factors that qualify as exceptional.

46. [46]
    While I consider some consideration and assessment of the cases that have been referred to this court is necessary, care needs to be taken when considering such decisions, as each case turns upon its own facts.

47. [47]
    The prosecution relied on the Court of Appeal decision of R v Kennings.[20]   When this matter was decided, the maximum penalty was only five years imprisonment.  In that case, the appellant engaged in sexually explicit conversations with a police officer posing as a 13 year old female child.  He sent a picture of himself and arranged to meet the child.  The appellant was 25 years of age and had no prior convictions.  When he made admissions to the police, he minimised his conduct by telling them that he had no intention to follow through with his plan to engage in sexual intercourse.  A psychiatrist considered he was a low risk of re-offending.  The Court of Appeal set aside the sentence of two and a half years imprisonment, suspended after nine months for an operational period of four years and instead it imposed a sentence of 18 months imprisonment, suspended after serving three months. 

48. [48]
    The solicitor appearing for the appellant referred to the Court of Appeal decision of R v Schenk, Ex parte Attorney-General (Qld) and the three single judge decisions of R v Olszewski[21], R v Fry[22] and R v Grimes[23].  In each of these cases the respective defendants pleaded guilty. 

49. [49]
    R v Schenk involved an Attorney-General’s appeal against a sentence of four months imprisonment, wholly suspended for an operational period of 18 months.  While the appeal was dismissed, the then President, McMurdo P observed that it was a borderline case where different judicial officers could have reached different conclusions as to whether an actual term of imprisonment needed to be served.  Further, the respondent had no criminal history.  He had a favourable report from a psychiatrist as to rehabilitation and the prospects of reoffending.  In finding exceptional circumstances, the sentencing judge relied on the fact that the respondent met the complainant on an adult website and the complainant had initiated the contact. 

50. [50]
    In R v Olszewski, there was one charge of grooming a child under 16 and one charge of using an electronic communication to procure a child under 16 to engage in a sexual act.  There were also three minor summary drug offences.  The indictable offences arose out of a Skype conversation.  The police operative indicated that she was 14 years of age.  The conversation was over some two and a half hours.  It involved the defendant sending two indecent photographs.  However, it did not involve any arrangements to meet the complainant.  The defendant was 40 years of age with a criminal history, including assault and drug related matters.  The most recent entry had been had been some seven years earlier.  Shannahan DCJ considered that exceptional circumstances existed so as to not require the defendant to serve a period of actual imprisonment.  He considered the ‘tipping point’ to be the contents of a psychiatric report which detailed the mental fragility of the defendant.  The head sentence was imposed in relation to the first count and was one of 18 months imprisonment to be wholly suspended with an operational period of two years. 

51. [51]
    In R v Grimes, the defendant engaged in sexually explicit conversations with persons posing as a 15 year old male child on an internet application designed for persons over 18.  The exchanges occurred over an hour and the defendant sent pictures of his penis.  The defendant ceased contact stating that the child was too young.  He was 67 and his criminal history was outdated and irrelevant.  The judge found that exceptional circumstances were present namely, the defendant’s significant medical issues, the aggressive approach by the persons posing as the child and the defendant's concern at the time of the offending regarding the child's age.  He was sentenced to 18 months imprisonment, wholly suspended, for an operational period of two years. 

52. [52]
    The other single judge decision of R v Fry, involved similar conduct with a police officer posing as a 14 year girl.  He was sentenced to 18 months imprisonment, wholly suspended, for an operational period of two years.  A feature in that case that is not present in this case is that the defendant not only made arrangements to meet the complainant but he followed them through by going to the nominated destination.  This aggravating conduct increased the maximum penalty to 14 years imprisonment.  The complainant in that case was 34 years of age and had some significant stressors in his life.  He had a dated and unrelated criminal history.  He was considered to be of good character.  There was psychiatric evidence to the effect that the defendant’s decision making would have been impaired at the time of the subject offending.  He was considered to be a low risk of reoffending with strong prospects of rehabilitation. 

53. [53]
    Turning to the present case, I do not consider the appellant’s mitigating factors compel a finding of exceptional circumstances. This was not of a low order of offending. An offence of this nature is serious and is reflected in the maximum penalty of seven years imprisonment. It was committed by a man who did not have extreme youth on his side. Although he had no history of sex offences, he had previously served custodial sentences and could not claim the benefit of good past character. Both general and personal deterrence assume paramount importance.

54. [54]
    When the matter came before this court, the appellant had served 65 days in custody. In my view, a sentence of 12 months imprisonment suspended after 65 days for an operational period of two years is appropriate. On account of the contents of the psychology report, I would tailor this with a probation order to ensure that the appellant receives the necessary supervision and treatment in the community.

Conclusion

55. [55]
    For these reasons I would allow the appeal, to the extent of setting aside the parole eligibility date of 18 August 2017. I would substitute the sentence of 12 months imprisonment, to be suspended after 65 days, for an operational period of two years. Further, that the appellant be released under the supervision of an authorised Corrective Services officer for a period of three years on the usual conditions and on the special condition that he undertake such medical, psychological or psychiatric treatment as directed by the relevant Corrective Services officer. The date from which this sentence commences is 18 July 2017 and it is declared that the appellant has served 65 days in custody.