In R v ZB  QCA 9, the Court of Appeal, was required to consider an appeal against the recording of a conviction for an offence of possession of child exploitation material. Ultimately the Court found in favour of the Applicant, determining that the consequences of a recorded conviction would adversely affect the offender and the community.
The applicant pleaded guilty to one charge of the possession of child exploitation material. police located 98 images depicting child exploitation material, 51 of which were still accessible. About one half of the images were in category one images.
The Applicant participated in an electronic record of interview at which time he made admissions to possession the images and agreed that he knew them to be unlawful. He was 25 at the time of the offending and 26 at sentence. He had no criminal history.
POSSESS CHILD EXPLOITATION MATERIAL SENTENCES
Section 228D of the Criminal Code of Queensland makes it an offence to possess child exploitation material. the maximum penalty for a person who knowingly possesses child exploitation material is 14 years imprisonment. The maximum penalty is increased to 20 years if the prosecution can prove that the person used a hidden network or an anonymising service in committing the offence, such as a VPN.
On 15 September 2020, the Penalties and Sentences Act was amended to provide that an offender must serve and actual term of imprisonment, unless there are exceptional circumstances. (See section 9(4) of the Penalties and Sentences Act).
BASIS OF APPEAL
The applicant applied for leave to appeal against his sentence, but only as to the recording of the conviction. A consequence of a conviction being recorded was that the applicant would become a “reportable offender” within the meaning of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) –
There was no finding by the judge that the applicant was at risk of committing an offence against a child and it was suggested that the sentencing judge erred in recording a conviction
The Applicants submitted that the sentencing judge’s discretion miscarried because prospects of rehabilitation offered by probation might be unduly jeopardised by recording a conviction. The Applicants supervision and monitoring required by the probation order negates the need for overlapping and additional monitoring under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld).
The applicant was sentenced to two years’ probation, requiring that he submit to such medical, psychiatric or psychological treatment as directed by a Corrective Services officer. A conviction was recorded.
The appeal was successful
In seperate reasons, the President, Justice Sofronoff,, Justices McMurdo JA and Jackson J upheld the Appeal and set aside the recording of the conviction.
The consequence for the applicant, of a conviction being recorded, were that he would become a “reportable offender” within the meaning of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld) (“the ORA”). The Court of Appeal in R v Bunton  QCA 214 described the obligations upon a person under the ORA as “onerous”.
Justice McMurdo JA noted that the Sentencing Judge did not make a finding that the Applicant was at risk of committing an offence against a child. Her Honour held that the his Honour appears to have been so influenced by the abhorrent nature of some of the images, that he characterised the offence in this case as so serious that it outweighed all of the other considerations. The judge appears to have regarded what he assessed to be “the nature of the offence” as determinative, despite all the other factors.
The President found that the probation order made by the sentencing judge addressed any need for professional therapy, supervision and monitoring and negated to a sufficient degree any need for monitoring under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), so that the conclusion that the community would be better served if a conviction were recorded was not justified.
Justice Jackson was concerned that there was no direct evidence to support the conclusion that the applicant in the instant case posed no significant risk to children. His Honour however ultimately granted the appeal.
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