Court of Appeal (Qld)|2001-02-26|Before: Murdo P, Williams JA, Wilson J

This matter was mentioned before me on 17 December 1999 and the matter was adjourned to be listed for argument as to sufficiency of service and possible hearing "as soon as possible subject to the convenience of the parties". The matter was not relisted until 23 October 2000 so that every effort could be made to enable the respondent to defend this matter.

A letter informing him that the matter would be heard on 23 October 2000 was sent on 7 June 2000 to his address in Sweden which he had provided to the registry. The respondent was informed that he could have the appeal heard by video or telephone link if he did not wish to be legally represented or appear in person. On 23 October 2000 the Court again adjourned the matter as the prosecution had not made all reasonable efforts to effect service.

The appellant's argument is solely that a conviction should have been recorded against the respondent because of the nature of the offences to which he pleaded guilty.

The respondent was at sentence 36 years old and is now nearly 40. He was 35 at the time of the offences. He has no prior convictions and has an excellent work history, initially as a journalist in regional newspapers and radio. He has performed volunteer work with a Christian group counselling street people in Fortitude Valley. He has worked with disabled children as a teacher aide and recreation officer. His interest in caring professions led him to complete a diploma of teaching. His past employers have included the Endeavour Foundation, the Freemasons Home and the Department of Education. Since 1993 he has pursued post-graduate studies whilst seeking work in social research, in academic and community settings. In 1994, he worked on his family's cattle property. During 1995 he was employed as a principal researcher by a community agency and completed a study on the mental health needs of young men.

At the time of sentence he expected to obtain first class honours from the University of Queensland in an unspecified degree and was said at sentence to have been accepted as a provisional PhD candidate. He had been awarded a University of Queensland exchange placement with a Swedish University in Lund and was leaving shortly after his sentence to begin a 12 month Masters course in intercultural understanding.

Although he was represented at his sentence, he personally addressed the learned sentencing Judge and gave an assurance that he would not seek employment in the future as a teacher or seek to work with children; instead he intended to pursue an academic career teaching only adults. Material provided from the Bar table and received without objection is to the effect that he has not worked with children since the sentence but rather in public broadcasting and advertising

The facts of the offences are as follows. Whilst the respondent was studying at the University of Queensland in 1996 he used the UQNet to access the internet. The respondent is a homosexual man and requested information about gay and lesbian clubs in Scandinavia, noting his interest in young European or Asian males. By this he meant young adult gay men, not juveniles.

The respondent received a large quantity of material on his internet site and a check revealed child pornography. The prosecution accepted at sentence that the respondent had not requested information regarding juveniles. Such a large quantity of material arrived on his internet site that it caused problems and the subsequent check revealed the child pornography and university staff informed police who attended the respondent's premises and located photographic images and child abuse computer games on disk.

The first count relates to articles published on the internet involving child abuse. A summary tendered at sentence indicated the material related to boys, as young as 7 or 8 up to age 14 or 15, masturbating or having oral or anal sex with each other or with adults.

The second count related to pornographic photographs involving children which the respondent had downloaded from the internet showing young boys engaging in oral sex. Some examples of these photographs were tendered at sentence and appear to show the exploitation of very young boys.

The third count involved the possession of a child abuse computer game which appeared to involve computer generated images rather than images of real children.

The final count involved the downloading of that game onto disks.

The respondent's counsel submitted at sentence that the respondent did not know the nature of the images before he downloaded them and kept the images and the computer game for self-gratification and curiosity without any intention to distribute them to others. Again, this was not disputed by the prosecution.

The respondent did not actively cooperate with police but he pleaded guilty at an early stage, the committal being by way of hand up statement.

The maximum penalty for counts 1 to 3 inclusive was two years imprisonment and 250 penalty units and for count 4 three years imprisonment and 800 penalty units. As has been noted, the appellant claims the sentence is manifestly inadequate only in that no conviction was recorded.

The learned and experienced sentencing Judge gave careful consideration to this matter and was acutely aware of the competing interests involved and finally decided not to record a conviction.

Mr Feeney today stresses that the respondent has not worked as a teacher for a long time. In any case, the current provisions of the Education (Teacher Registration) Act 1998 (Qld) would require reporting of these proceedings. He also stresses that the Commission for Children and Young People Act 2000 (Qld) will require the holding of a certificate of suitability for those who may work with children, at least from October 2001 when the relevant sections (Part 6) are to come into force.

I am conscious of the considerable circumspection required before interfering in the discretionary exercise of whether or not to record a conviction. Section 12 of the Penalties and Sentences Act 1992 gives the Court a discretion whether or not to record a conviction and requires the Court to

have regard to all the circumstances of the case including:

(a) the nature of the offence, (b) the offender's character and age and (c) the impact that recording a conviction will have on the offender's economic or social well being or chances of finding employment.

Here the nature of the offence supported the recording of a conviction, especially in circumstances where the respondent had a history of working with disabled and young people and was a qualified teacher. The other considerations set out in section 12(2)(b) and (c) tended, on balance, to favour the non-recording of a conviction, although there was no specific evidence that the recording of a conviction would directly impact on the respondent's ability to work.

This tension was considered by this Court in Briese

[1997] QCA 10; [1998] 1 QdR 487; 92 ACrimR 75 at 78-80 by Thomas and White JJ who noted that the effect of an order prohibiting the recording of a conviction:

"... is capable of considerable effect in the community. Persons who may have an interest in knowing the truth in such matters include potential employers, insurers and various government departments including the Immigration Department. The Adoption of Children Act 1964 (Qld) defines 'criminal history', and provides in s 14(b) for a person to be required to disclose his or her criminal history to the extent required by the Department when that person seeks to become the adopter of a child. Whether the later s 12 of the Penalties and Sentences Act overrides that right of the Department may be an arguable question.

For the present purposes it is enough to note that the making of an order under s 12 has considerable ramifications of a public nature, and courts need to be aware of this potential effect. In essence a provision of this kind gives an offender a right to conceal the truth, and it might be said, to lie about what has happened in a criminal court. On the other hand the beneficial nature of such an order to the offender needs to be kept in view.

It is reasonable to think that this power has been given to the courts because it has been realised that social prejudice against conviction of a criminal offence may in some circumstances be so grave that the offender will be continually punished in the future well after appropriate punishment has been received. This potential oppression may stand in the way of rehabilitation, and it may be thought to be a reasonable tool that has been given to the courts to avoid undue oppression."

In R v. Gallagher, ex parte Attorne-General [1999] 1 QdR 200 at 208, the same point was considered by Pincus JA who noted:

"Although I take into account, in favour of the respondent, that he has suffered severely, in the way disclosed by the record and discussed by McPherson J.A., it appears to be necessary that convictions be recorded. If that is not done, then under s 5(2) of the Criminal Law (Rehabilitation of Offenders) Act 1986 the respondent will be legally entitled to conceal these convictions, if asked to disclose whether he has committed any offences. The result could be that an inquirer with a real need to know about offences of the present character - sexual offences against a young child - might be misled, with unfortunate consequences. I note that by the Justice Legislation (Miscellaneous Provisions) Act 1996, s 9A of the Criminal Law (Rehabilitation of Offenders) Act 1986 has been amended so as to remove the protection of s 5, in relation to applicants for certain positions in which they might have, among other things, responsibility for children; this is a summary of the general effect of the amendment."

Whilst the offences in Gallagher were much more serious than these offences those comments nevertheless are apposite.

Mr Feeney has also stressed the disadvantage to the respondent because of the delay which is by no means solely his fault. The Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) encourages those who have offended but reformed by allowing them to have convictions cleared from their criminal history after a rehabilitation period. Under s 3 of that Act a rehabilitation period commences "on the date the conviction is recorded".

R v. Rasmussen CA No 288 of 1999, 1 December 2000, tends to suggest that the effect of a successful Attorney-General's appeal is to vary the primary sentence and court order so that the date the conviction is recorded is in fact the date of the original sentence.

In the end I am not persuaded that delay in this case is in itself or when combined with the other factors a sufficient reason not to record a conviction.

Despite the oral assurances from the respondent to the primary judge that he would not work with children in the future, his repetition of those assurances to this Court in his letter of 15 December 1999 and the submissions of his counsel today, the respondent's qualifications and previous work history given to the sentencing court by his counsel suggest to me that this is a case where the community's interest in having a conviction recorded against the respondent for these offences overrides the interests of the respondent. In reaching this conclusion I appreciate that the respondent must be sentenced on the basis that he did not seek this pornographic material, merely downloaded some of it and kept it for his own self-gratification.

I would allow the appeal to the limited extent of deleting the order that no conviction be recorded and instead ordering that a conviction be recorded. I would otherwise confirm the sentence at first instance. To remove any doubt, the conviction would be deemed to be recorded on

WILLIAMS JA: The only aspect of this matter which has caused me concern is the time lapse from 11 August 1997 when sentence was imposed until today.

On sentence counsel for the respondent made it clear that his client was about to leave Australia for study in Sweden and indicated where he would be.

It seems to me that there was significant delay on the part of the applicant in locating and serving the respondent with the necessary papers. Ordinarily such delay could be a factor which would militate against an Attorney's appeal being successful. However there is, in my view, an important community interest in a case of this kind. Notwithstanding various legislative provisions requiring disclosure of the fact that a person has been dealt with for such an offence as this, there is a general community interest in having a conviction recorded where child pornography is involved.

The position here is analogous to that considered by this Court in R v. Gallager ex Parte Attorney-General [1999]

1 QdR 200 and the R v. Briese ex Parte Attorney-General [1997] QCA 10; [1998] 1 QdR 487.

In my view, that community interest outweighs any other factor and a conviction ought in all the circumstances be recorded.

However, because of the definition of "rehabilitation period" in the Criminal Law (Rehabilitation of Offenders) Act 1986 a declaration should be included to ensure that the relevant period runs from the date of the original sentence, namely 11 August 1997.

WILSON J: I agree with the reasons of the President and with those of Justice Williams.

I would add simply this. The protection of the public which is afforded by the recording of a conviction and which was discussed by Justice Pincus in Gallagher's case is of wider scope than that apparently afforded by the legislative scheme referred to by Mr Feeney.

THE PRESIDENT: The orders are as I have just outlined.

Education (Teacher Registration) Act 1998(Qld)

Commission for Children and Young People Act 2000(Qld)

Adoption of Children Act 1964(Qld)

Law (Rehabilitation of Offenders) Act 1986

Justice Legislation (Miscellaneous Provisions) Act 1996

R v Hoch; exparte AG [2001] QCA 63 (26 February 2001)

R v Hoch; exparte AG [2001] QCA 63

At a glance

Court

Decision date

Before

Source

Judgment (45 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (1)

R v Hoch; exparte AG [2001] QCA 63 (26 February 2001)