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B.S v QPS QDC 197
DISTRICT COURT OF QUEENSLAND
B.S v QPS  QDC 197
QUEENSLAND POLICE SERVICE
APPEAL NO: 88/19
Magistrates Court, Cairns
27 September 2019
6 September 2019
Morzone QC DCJ
CRIMINAL LAW – appeal pursuant to s 222 Justices Act 1886 – conviction – seven charges – Distribute prohibited visual recording – mode of hearing of appeal – error of law – witness credit – whether conviction unreasonable and unsupported – whether sentence manifestly excessive.
Justices Act 1886 (Qld) ss 222, 223(1) & 227
Penalties and Sentences Act 1992 (Qld)
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Allesch v Maunz (2000) 203 CLR 172
Dwyer v Calco Timbers (2008) 234 CLR 124
Forrest v Commissioner of Police  QCA 132
House v The King (1936) 55 CLR 499ΩKentwell v R (2014) 252 CLR 60
Norbis v Norbis (1986) 161 CLR 513
McDonald v Queensland Police Service  QCA 255
Teelow v Commissioner of Police  QCA 84
Warren v Coombes (1979) 142 CLR 531
White v Commissioner of Police  QCA 121
J. Trevino for the Appellant
T. Watkins for the Respondent
Legal Aid Queensland for the Appellant
The Office of Director of Public Prosecutions for the respondent
- On 15 May 2019, the 43 year old appellant was convicted on his own pleas of guilty before his Honour Magistrate Pinder in the Cairns Magistrates Court to seven charges of distributing prohibited visual recordings contrary to s 227B of the Criminal Code, and sentenced to concurrent terms of six months’ imprisonment to be wholly suspended for an operational period of two years.
- The appellant now appeals his sentence.
- Both parties provided outlines of argument, and made further submissions on the hearing of the appeal, which I have considered.
- The appellant and the complainant were in a domestic relationship for 8 years and had three children aged two, five and seven. The appellant and the complainant separated in August 2018, when the complainant left the family home ostensibly to stay with her sister in Darwin.
- After August 2018, the complainant returned to stay with the appellant and their children on five or six occasions. The last time the complainant stayed in Cairns with the appellant was 26 December 2018, before the appellant learned that the complainant was in a relationship with another man.
- On 9 January 2019, the appellant contacted the other man via Facebook Messenger and informed him that he was the complainant’s partner of eight years and that he and the complainant were still in an intimate relationship. The appellant sent the man screen shots of messages between himself and the complainant to support his assertion. Apparently prompted by a request for details of the dates and times that the appellant had been with the complainant, he sent two images and one 30 second video:
- One image depicts the complainant in an unclothed, full frontal position showing her face, breasts and vagina.
- The second image depicts the victim’s vagina and anus in a spread open position with the hand of another person believed to be the applicant placed on her right buttock.
- The video depicts the applicant and the complainant engaging in sexual intercourse.
- Further communication occurred between the two men before the appellant sent four more images depicting the complainant naked and in sexually explicit poses, as follows:
- One depicts the complainant in a bent over position on a bed with a penis penetrating her vagina;
- The second depicts the complainant in a bent over position showing her vagina and anus;
- The third depicts the complainant’s face and one breast. The complainant is holding her breast towards her mouth and licking her nipple; and
- The fourth, depicts the complainant’s face and both breasts. The complainant is holding her breast towards her mouth and licking her nipple.
- It is accepted that whilst the man requested detailed information from the appellant to corroborate his claims of infidelity, he made no request for any images or the video. It is also accepted that the complainant herself was unaware of the existence of two images and the video.
- Complaint was made to police on 27 January 2019. On 9 February 2019 police executed a search at the appellant’s residence. After being cautioned, the appellant voluntarily supplied his phone to police on which the visual recordings were found. He told police that he sent the recordings so that “he knew what he was getting involved with” and because the other man “had asked him for everything”. He admitted that he did not have the complainant’s permission or consent to send the visual recordings. His plea of guilty was indicated at his first appearance.
- At the time of sentence, the appellant was 43 years of age with no criminal history. He was the sole carer of the three children. In addition to the single parent’s pension, the appellant was also in receipt of a carer’s pension to assist in the care of the five year old child who suffers from cerebral palsy. He had recently returned to some casual employment with a previous employer. The court received references which spoke favourably about the appellant’s efforts as a single parent and his previous work history.
- The prosecutor submitted that community service was within range for the appellant’s offending. The appellant’s solicitor submitted that community service without convictions being recorded was an appropriate penalty in all of the circumstances.
- For each offence the appellant was sentenced to concurrent terms of six months’ imprisonment to be wholly suspended for an operational period of two years.
Mode of Appeal
- The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld). Section 222(1) relevantly provides:
“If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court judge.”
- Pursuant to s 223 of the appeal is by way of rehearing on the original evidence, and any new evidence adduced by leave. Section 223 provides:
- (1)An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices.
- (2)However, the District Court may give leave to adduce fresh, additional or substituted evidence (new evidence) if the court is satisfied there are special grounds for giving leave.
- (3)If the court gives leave under subsection (2), the appeal is—
- (a)by way of rehearing on the original evidence; and
- (b)on the new evidence adduced.
- For an appeal by way of rehearing “the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error,” and thereby resulting in a manifestly excessive sentence.
- The rehearing requires this court to conduct a real review of the evidence before it (rather than a complete fresh hearing), and make up its own mind about the case.
- Its function is to consider each of the grounds of appeal having regard to the evidence and determine for itself the facts of the case and the legal consequences that follow from such findings. In doing so it ought pay due regard to the advantage that the magistrate had in seeing the witnesses give evidence, and attach a good deal of weight to the magistrate’s view.
Grounds of Appeal
- The appellant appeals against the sentence on the ground that it is manifestly excessive.
- Whilst the respondent acknowledges that the sentence at the higher end of any applicable range, it maintains that the sentence was open and not manifestly excessive in all the circumstances.
Appeal against Sentence
- This court ought not interfere with a sentence unless it is manifestly excessive, it is vitiated by an error of principle, there has been a failure to appreciate a salient feature or there is otherwise a miscarriage of justice. A mere difference of opinion about the way in which the discretion should be exercised is not a sufficient justification for review, it must be shown that the discretion miscarried.
- The High Court held in House v. The King that:
“It is not enough that the Judges composing the Appellate Court consider that if they had been in a position of the primary Judge they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows erroneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the Appellate Court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts, it is unreasonable or plainly unjust, the Appellate Court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
- The High Court in Kentwell v R held:
“In the case of specific error, the appellate court’s power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed. By contrast, absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.”
- The decisions distinguished cases of specific error and manifest excess. Once an appellate court identifies a specific error, the sentence must be set aside and the appellate court must exercise the sentencing discretion afresh, unless, in that separate and independent exercise it concludes that no different sentence should be passed. By contrast, an error may not be discernible; but the sentence is manifestly excessive as being too heavy and lies outside the permissible range. Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed.
- In his sentencing remarks, the learned Magistrate:
- Stated that the appellant’s offending conduct was “disgraceful and scandalous” and that the appellant had behaved in “a despicable and cowardly fashion”;
- Considered that the appellant’s offending was “clearly intended to be spiteful and harming” to the complainant;
- Considered that the appellant’s “pleas of guilty and cooperation and assistance were significant features to be taken into account”;
- Accepted that the appellant was remorseful for his offending;
- Considered the appellant was of otherwise good character;
- Accepted that his sole care of three children, one with “a serious illness” was a “burden” for the appellant;
- Noted that the recording of a conviction “can have an adverse impact upon [the appellant’s] prospects of employment and [the appellant’s] social well-being”;
- Said that “the serious nature of the offending, notwithstanding those mitigating features, is the only reasonable alternative.”;
- Considered that the decision of Robertson DCJ in Dever v The Commissioner of Police  QDC 65 involved similar offending and was a “useful yardstick”.
- Dever involved two charges: one of using a telephone to menace, harass or offend contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth); and the second distributing prohibited visual recordings contrary to s 227B(1) of the Queensland Criminal Code. The appellant failed in his appeal against the sentence of 6 months imprisonment suspended since he served 15 days of declared presentence custody. The appellant stayed for a short period in a house in which the complainant rented a room. He accessed the complainant’s hard drive without permission, which was located in her bedroom. After being evicted from the house he then uploaded nude images and at least one video of the complainant masturbating to YouTube. The recordings were viewed by five people who were provided a link by the appellant. There was no obvious reason for the defendant’s distribution, save that he said the male ‘had a thing’ for the female. The female became highly distressed when she became aware of the publication. That 44 year old appellate (at sentence) had a history of psychosis. He had a lengthy criminal history including many convictions for breaching domestic violence protection orders. He was admitted to probation and community service orders for a number of offences of dishonesty but also for a serious assault of a person over 60 years. Later he was convicted of a number of a dishonesty offences but also a previous offence under s 474.15 of the Commonwealth Criminal Code. On that occasion he used a telephone service to threaten to kill a police officer. About 15 months later be was convicted of a number of offences including another breach of s 474.17 of the Commonwealth Criminal Code. That offence involved menacing a 43 year old female who he had met to discuss a business matter. When she did not like the website he had designed for her, he sent in excess of 50 messages to her which were menacing, threatening and offensive. He had a number of breaches for breaches of a domestic violence order for which he was sentenced to two years’ probation. He was subject to a probation order for breaching a domestic violence order at the time of the commission of the offence.
- It seems to me that the circumstances of offending in Dever are so divergent that it was not such a useful “yardstick” as to provide any reliable comparative value in the present case. Although the offenders were of similar age and the offending of a generally similar type, here the nature and serious of the criminal conduct is in the lower end of the range, and it is not aggravated by reoffending in breach of an incomplete sentence. Indeed he had no criminal history, and he did not engaged in impermissible data access. Whilst the appellant was likely embittered, angry and resentful of the complainant and wished to cause her upset and perhaps humiliation that was apparently not his primary motivation in the offending. He seemed to be driven to prove to the other man the genuineness of his claim of a simultaneous intimate relationship with the complainant. The method he did so was deplorable and not sort by the other male, and that conduct resulted in the serious offensive and humiliating offending here.
- In that way, in my respectful view, I think the learned magistrate erroneously allowed the matters to guide or affect him.
- The only purpose for which a sentence may be imposed by virtue of s 9(1) of the Penalties and Sentences Act 1992 (Qld) is to punish an offender to an extent or in a way that is just in all of the circumstances, facilitate avenues of rehabilitation, deter the offender and others from committing a similar offence, make it clear that the community denounces the conduct in the offending and to protect the community. It is trite to say that the appropriate sentence will depend on the particular circumstances of the offending and the degree of culpability of the offender. The nature of the penalty, in the form of a fine, provides little by way of rehabilitation, particularly in circumstances where its payment is likely to be unattainable and, therefore, there would be little motivation to do so. The gravity of this offending can also be gleaned by the relative minimum and maximum penalties, with due regard to the factors of general and, as appropriate, personal deterrents.
- Further, for this offending, it is relevant that imprisonment should only be imposed as a last resort and a sentence that allows the appellant to stay in the community is preferable. In this regard, the learned magistrate said:
“The seriousness of your offending, reflected in the nature of it, the impact on the victim, which I have regard to as I am required to in respect of the victim impact statement, notwithstanding the significant mitigating features, your early pleas of guilty and cooperation, and your unremarkable history, in my view, rise to the point where, notwithstanding imprisonment is a last resort, the serious nature of the offending, notwithstanding those mitigating features, is the only reasonable alternative.”
- It is not clear to me what his Honour meant by saying that imprisonment was “the only reasonable alternative”. But it is clear to me that his Honour did not adequately consider all other non-custodial sentences nor conclude that they were not appropriate before finally resorting to imprisonment. In my view the imposition of imprisonment was not the last resort and other sentences are appropriate in the circumstances of the case. Indeed, both the prosecutor submitted that community service was within range for the appellant’s offending. The appellant’s solicitor submitted that community service without convictions being recorded was an appropriate penalty in all of the circumstances.
- For these reasons, in my respectful view, the trial magistrate erred in exercising the sentencing discretion by:
- Acting upon a wrong principle, that imprisonment was the only reasonable alternative;
- Allowing erroneous or irrelevant matters to guide or affect him when weighing the comparative value of authorities;
- Mistaking the facts by characterising the offending conduct in a way which was not borne out by the evidence;
- Failing to give appropriate weight to the material consideration of the circumstances of the offending, very limited publication, and defendant’s unblemished character.
And thereby imposed a sentence which was outside the permissible range, and therefore, manifestly excessive.
- I will therefore allow the appeal against sentence, and proceed to resentence.
- In addition to what I have said above, I accept that offending of this kind is by its very nature humiliating and distressing for complainants. The offending is likely to involve a wide range of circumstances and parties; here the appellant’s impermissible shared personal images of the complainant without her consent. The images were originally shared (or taken) with the appellant in the trusting confines of an intimate relationship. The appellant breached the complainant’s trust by sharing the images. Personal and general deterrence looms large. However, I do accept it falls into the more serious type of abuse colloquially known as “revenge porn”.
- I am satisfied that the defendant is a suitable person to perform community service instead of going to gaol. I would have been disposed to imposing a fine, with or without compensation, but this is militated against by the appellant’s financial circumstances
- So, for each charge, the defendant will be ordered to perform unpaid community service for a total of 200 hours. The defendant must comply with the requirements set out in s 103(1) of the Penalties and Sentences Act 1992.
- As to whether to record a conviction, I have had 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 defendant’s economic or social wellbeing; or chances of finding employment. The circumstances here warrant that a conviction not be recorded.
- For these reasons, I will allow the appeal, and make the following orders:
- Appeal allowed.
- The sentence and orders of the Magistrates Court made in Cairns on 15 May 2019 are set aside, and substituted with the following sentence:
- (a)For all charges the defendant is ordered to perform unpaid community service for 200 hours, and comply with the requirements set out in s 103(1) of the Penalties and Sentences Act 1992 (Qld).
- (b)The appellant must report to an authorised Corrective Services Officer at CAIRNS by 5 pm on Monday 30 September 2019.
- (c)No convictions are recorded.
Judge DP Morzone QC
 Allesch v Maunz (2000) 203 CLR 172,  –  followed in Teelow v Commissioner of Police  QCA 84, ; White v Commissioner of Police  QCA 121, , McDonald v Queensland Police Service  QCA 255, ; contrast Forrest v Commissioner of Police  QCA 132, 5.
 Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; Dwyer v Calco Timbers (2008) 234 CLR 124; applied in Forrest v Commissioner of Police  QCA 132, 5 and McDonald v Queensland Police Service  QCA 255, .
 White v Commissioner of Police  QCA 12, -; Forrest v Commissioner of Police  QCA 132, 5 & 6; McDonald v Queensland Police Service  QCA 255, .
 House v The King (1936) 55 CLR 499, 504-505; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 176-178; Norbis v Norbis (1986) 161 CLR 513, 517-519.
 (1936) 55 CLR 499, 504 and 505.
 Kentwell v R (2014) 252 CLR 60, , adopting AB v R (1999) 198 CLR 111,  per Hayne J (minority).
- Published Case Name:
B.S v QPS
- Shortened Case Name:
B.S v QPS
 QDC 197
27 Sep 2019