May 24, 2019

Ross v Commissioner of Police [2019] QCA 96

Section 205A of the Criminal Code was introduced following the introduction of the 2016 Serious and Organised Crime Legislation Amendment Act. The decision of Ross v Commissioner of Police [2019] QCA 96, outlines the approach the Court of Appeal has taken to sentencing for this offence. The decision indicates that the sentence is to reflect the serious nature of the offence.

Ross also provides an overview of interstate sentences for similar offences of contravening orders to access information stored electronically.

Facts of the case.

On 20 June 2017 police executed search warrants on the Mr Ross’s residence and business address. At his home, police found 10 vials of growth hormone in the refrigerator and two vials of growth hormone in the bathroom. At his workplace, police found a vial of growth hormone, a black bag containing fireworks, five BlackBerry mobile phones, one Apple iPhone and a number of computers.
On 18 July 2017 a warrant was obtained to search the mobile phones and computers.
On 17 August 2017 police obtained, from a Magistrate, an authorised order for access information to the mobile phones and computers under section 154A of the Police Powers and Responsibilities Act 2000 (Qld) (“the Access Order”).
Mr Ross provided access information to the computers, but not to the six mobile phones
Mr Ross was charged with 5 offences including the Section 205A offence:

Contravening order about information necessary to access information stored electronically pursuant to section 205A of the Criminal Code 1899 (Qld) (“the Criminal Code”) (charge 1).
Possessing dangerous drugs (growth hormone) (charge 2).
Possessing dangerous drugs (nandrolone) (charge 3).
Offence in relation to unauthorised and prohibited explosives (fireworks) (charge 4).
Authority required to possess explosives (fireworks) (charge 5).

Mr Ross was 34 years of age at the time of offending and at sentence, married with three children, educated to year 11 level and had operated his own clothing company for three years. A reference tendered on his behalf described him as a valuable member of the community.
He was sentenced to 12 months imprisonment, wholly suspended for an operational period of three years, for the offence of contravening an order about information necessary to access information stored electronically and was fined $500 for charges 2 to 5 collectively.
The six mobile phones were forfeited in the course of the sentence proceeding
He appealed to the District Court, however the Appeal was dismissed and he sought leave to appeal to the Court of Appeal.

The Law

Section 205A is a fairly recent addition to the Criminal Code, having been inserted by the Serious and Organised Crime Legislation Amendment Act 2016 (Qld), which was assented to on 9 December 2016. Section 205A states as follows:

A person who contravenes—
(a) an order made under the Police Powers and Responsibilities Act 2000, section 154(1) or (2) or 154A(2); or
(b) an order made under the Crime and Corruption Act 2001, section 88A(1) or (2) or 88B(2);
commits a crime.
Maximum penalty—5 years imprisonment.
Section 205A Criminal Code

The Explanatory Notes for the Serious and Organised Crime Legislation Amendment Act 2016 (Qld) describe section 205A, amongst other relevant provisions, as a “major investigative tool to combat serious criminal activity” introduced “in response to the proliferation of child exploitation material … the increased use of technology to promote and distribute offending material as well as to conceal offending”.

The legislature considered that the maximum penalty of five years imprisonment for an offence under the new section 205A was “justified to ensure a balance between the penalty for non-compliance with an order of the court and the maximum penalty for offending behaviour, for example, child exploitation material offences, which may be concealed by technology”

Findings of the Court of Appeal

Justice Wilson held that the the gravamen of a section 205A Criminal Code offence lies in the fact that it stymies an investigation and potentially conceals more serious offending, and has the potential to deflect a police investigation into potentially very serious offences. Her Honour found that while the surrounding charges were relatively minor offences that attracted a fine of $500.00 this did not reduce the seriousness of the criminality.

In this case, the applicant pleaded guilty to a number of relatively minor offences, however, these minor offences cannot be assumed to characterise the level of criminality hidden by the applicant’s refusal to provide access information. Such an assumption would be speculative. Further, it is noted that there may be occasions where a section 205A offence is the only offence charged. For example, evidence in a conspiracy case or possession of child exploitation material may be wholly contained on a device. In such situations, if a defendant refuses to comply with a court order to provide access information, then it will be forever unknown to the sentencing court the criminal offence(s), or potential offence(s), which have been concealed.
Ross v Commissioner of Police [2019] QCA 96 per Wilson J at 48

Her Honour held that the the level of criminality was unknown to the court because Mr Ross refused to provide the access information and no submissions were made on his behalf about the reasons why he refused to do so.

Sentence not excessive.

Her Honour held that the sentence of 12 months imprisonment imposed on Mr Ross adequately reflected the serious offence, which potentially concealed serious crimes and which was constituted by the contravention of a court order. The sentence acts as a sufficiently deterrent sentence against the applicant and others who may be tempted to contravene a court order to protect themselves.

The defiance of a court order is an act that strikes at the foundation to the criminal justice system and there is a need for general deterrence and denunciation when sentencing section 205A Criminal Code offences.
Ross v Commissioner of Police [2019] QCA 96 per Wilson J at 58

While there is some belief that this decision means that the only available penalty for this offence is a period of imprisonment, it should be noted that Her Honour, Justice Wilson in referring to shahs said:

There may be occasions where submissions are made by the prosecution or the defendants’ representative which may mitigate or aggravate a refusal to comply with an order for access information. These matters may be taken into account
Ross v Commissioner of Police [2019] QCA 96 per Wilson J at 52

It is important that where facts arise that may act to mitigate the ultimate sentence submissions are made on this issue. If a contest arises then the usual fact-finding process pursuant to section 132C of the Evidence Act can be undertaken.

The Court of Appeal also had regard to the following features which are said to indicate the seriousness of the matter, including:

The applicant contravened a court order to provide access to devices.
The court order can only be issued if a Magistrate is satisfied that there are reasonable grounds for suspecting information stored in the device may be evidence of an offence or confiscation related evidence.
There were six devices to which the passcodes were not provided in breach of the Access Order. They were all the applicant’s devices. All of them were secure in the sense that police could not access them without the passcodes.
The applicant made a deliberate and careful choice not to provide the passcodes to the particular devices. He provided passcodes to other computers and devices that were seized by the police but chose not to provide the access codes for the six devices the subject of the offence.

Interstate Comparative Decisions

There are no previous decisions from the Queensland Court of Appeal under section 205A of the Criminal Code. The Court of Appeal found some guidance from the Western Australian Court of Appeal’s considerations of sentences for failing to comply with a data access order under section 61 of the Criminal Investigation Act 2006 (WA).

Chadburne v The State of Western Australia [2017] WASCA 216

The Western Australian Court of Appeal dismissed an appeal against a sentence of six months imprisonment, cumulative on 16 years imprisonment for serious drugs offences, for failing to provide access information to an encrypted BlackBerry device.

Lenton v The State of Western Australia [2017] WASCA 224

Again The Western Australian Court of Appeal dismissed an appeal against a sentence of six months imprisonment, concurrent with eight years imprisonment for drug and weapons offences, for failing to provide the access information to four mobile telephone and a laptop seized by police. The court noted that there should not be any expectation by offenders that sentences for this offence will necessarily be concurrent.

The State of Western Australia v Doyle [2017] WASCA 207

The Western Australian Court of Appeal increased a four year effective sentence to six years for drug supply offences. The nine month concurrent sentence of imprisonment for refusing to give access information to two BlackBerry devices was not disturbed.

R v Ensbey; Ex parte Attorney-General (Qld)[2004] QCA 335

Some assistance was found in the Queensland decision of Ensbey. In that decision the defendant had shredded and rendered illegible parts of a diary written by a child alleging sexual abuse by a parishioner. A six month term of imprisonment, wholly suspended, was held not to be manifestly inadequate on a charge of damaging evidence with intent.

R v Freeman[1998] QCA 462

Another Queensland decision where the defendant refused to take an oath to give critical evidence in a prosecution for serious criminal offences. A nine month sentence, imposed cumulatively to other terms of imprisonment being served, with a nine month delay in parole eligibility date, was held not to be manifestly excessive for contempt of court.

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