R v Verburgt

SUPREME COURT OF QUEENSLAND

CITATION: R v Verburgt [2009] QCA 33

PARTIES: R / v / VERBURGT, Glen Jon / (applicant/appellant)

FILE NO/S: CA No 358 of 2008 / DC No 3385 of 2008

DIVISION: Court of Appeal

PROCEEDING: Sentence Application

ORIGINATING COURT: District Court at Brisbane

DELIVERED EX TEMPORE ON: 26 February 2009

DELIVERED AT: Brisbane

HEARING DATE: 26 February 2009

JUDGES: McMurdo P, Holmes JA and Chesterman JA / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: **Application for leave to appeal granted;****Appeal allowed;****Sentences imposed at first instance set aside;**On count 1, applicant convicted and released upon his giving security by recognizance under s 20 of the Crimes Act **1914 (Cth) to be of good behaviour for a period of two years;**On count 2, applicant sentenced to six months imprisonment suspended forthwith with an operational period of two years.

CATCHWORDS: Criminal law – appeal and new trial – appeal against sentence – grounds for interference – judge acted on wrong principle – where applicant pleaded guilty to one count of using a carriage service to access child pornography material (a Commonwealth offence) and one count of knowingly possessing child exploitation material (under s 228D of the Criminal Code) – where applicant sentenced on count 1 to 12 months imprisonment, with release after three months on recognizance, and, on count 2, to 12 months imprisonment with an order for release on parole after four months – where applicant was 39 years old, had a good work history, had commenced counselling, had no criminal history, co-operated with police, made admissions and showed remorse – where sentencing discretion miscarried because sentencing judge wrongly fixed a parole release date on count 2, and, on count 1, failed to advert to s 17A of the Crimes Act 1914 (Cth) – where amendments to the Penalties and Sentences Act 1992 (Qld) render s 9(2)(a) inapplicable to an offence against s 228D – whether any person convicted of an offence against s 228D must be sentenced to actual imprisonment – whether sentence manifestly excessive / Criminal Code 1899 (Qld), s 228D / Penalties and Sentences Act 1992 (Qld), s 9(6A), s 9(6B), s 160B, s 160D / R v Daw [2006] QCA 386, cited / R v Richardson; ex parte A-G (Qld) [2007] QCA 294, cited / R v Riley [2007] QCA 391, cited / R v Wharley [2007] QCA 295, cited

COUNSEL: A J Edwards for the applicant/appellant / M B Lehane for the respondent

SOLICITORS: Legal Aid Queensland for the applicant/appellant / Director of Public Prosecutions (Qld) for the respondent

THE PRESIDENT: Justice Holmes will deliver her reasons first.

HOLMES JA: The applicant seeks leave to appeal against a sentence of 12 months imprisonment, with release after three months on recognizance, for an offence of using a carriage service to access child pornography material (a Commonwealth offence) and a sentence of 12 months imprisonment with an order for release on parole after four months for an offence under s 228D of the Criminal Code of knowingly possessing child exploitation material.

The first offence was committed by the applicant’s downloading four images which, it was accepted, were child exploitation material, from a Croatian website. Those images were not before the Court; presumably, the applicant had deleted them, because when a search was later undertaken of his home, they were not found on this computer.

Six other images were, however, and they gave rise to the second count. Three of them showed girls being penetrated by a penis or a dildo (the youngest, a child between four and eight years); two involved shots of an adolescent's vaginal area; and the sixth showed three adolescents lying on a bed, one of them a boy aged between 10 and 14 years who was having his penis sucked by another. The applicant had not paid for the material and there was no suggestion he had made it available to others.

The applicant was a 39 year old single man who lived alone. He worked filling shelves in a supermarket and had a good work history. He had suffered learning difficulties and was subject to panic attacks and depression. His mother and sister supported him; they provided references and confirmed that he had commenced counselling for his problems. He had no criminal history. He had co-operated with the police when they attended his house on the search by volunteering that he had child exploitation material and by making admissions. He had pleaded guilty on an ex-officio indictment. His counsel said that he was ashamed that he had had the material and had embarrassed himself and his family.

The learned judge erred, as counsel for the respondent pointed out, in sentencing the applicant for the s 228D offence, in that she fixed a parole release date. Because the offence, by virtue of schedules 1 and 4 of the Corrective Services Act 2006 (Qld), was a “sexual offence” as defined by s 160 of the Penalties and Sentences Act 1992 (Qld), s 160B of that Act, which otherwise applies to require the fixing of a parole release date where a sentence is three years or less, had no application. (The learned judge could, however, have set an eligibility date under s 160D.)

It was conceded by counsel for the respondent that the failure to impose a sentence in accordance with the law constituted a miscarriage of discretion, requiring that the applicant be re-sentenced by this Court.

The learned judge erred also, as it seems to me, in respect of the sentence imposed on the Commonwealth offence in this respect: she failed to advert to s 17A of the Crimes Act 1914 (Cth), which provides that a court shall not pass a sentence of imprisonment for a Federal offence unless, having considered all other available sentences, it is satisfied no other sentence is appropriate.

In all the circumstances of the case, that, too, was an error which requires this Court to re-exercise the sentencing discretion in respect of the Commonwealth offence, having regard to s 17A.

There are a number of decisions of this Court involving sentencing for s 228D offences. In R v Daw [2006] QCA 386, a sentence of nine months imprisonment to be served by way of an intensive correction order, imposed on a 23 year old who had downloaded 58 images and had pleaded guilty on an ex-officio indictment, was set aside, and a two year probation order with no conviction recorded was substituted.

In R v Richardson; ex-parte A-G (Qld) [2007] QCA 294, the Attorney-General's appeal against a sentence of 12 months imprisonment, wholly suspended for three years, imposed on a 24 year old respondent without prior convictions who had downloaded and subsequently discarded multiple files of child pornography, was dismissed.

In R v Riley [2007] QCA 391, a sentence of six months imprisonment, suspended after two months with an operational period of 12 months, imposed on a 28 year old without criminal history who had possession of 55 images and 21 videos containing child exploitation material, was set aside. In that case, the sentencing judge had erred by failing to refer to s 9(2)(a) of the Penalties and Sentences Act, which required the court to have regard to the principle that a sentence of imprisonment should be only imposed as a last resort, and at that time applied to s 228D offences. The applicant had served 15 days of imprisonment; the Court sentenced him to six months imprisonment suspended forthwith, with an operational period of 12 months.

In R v Wharley [2007] QCA 295, the learned judge had properly had regard to s 9(2)(a). He had imposed a sentence of six months imprisonment, suspended after two months with an operational period of two years, on an applicant 45 years old with no previous convictions. He was found in possession of 43 pornographic images of children held on disc. That sentence was upheld. Significantly, that applicant, unlike any other in the cases which I have mentioned, was convicted after a trial.

Finally, in R v Salsone; ex parte A-G (Qld) [2008] QCA 220, the Attorney-General appealed against sentences involving probation and community service without conviction imposed on a 21 year old offender who had pleaded guilty to one count of distributing and one count of possession child exploitation material. The material consisted of some thousands of images and a number of video files. The distribution charge was constituted by the applicant’s having made the material available to others by placing it in a Limewire shared folder. In that case, the appeal was allowed and a sentence of 15 months imprisonment, suspended forthwith for two years, was substituted on the distribution charge, while two years probation was ordered on the possession charge. Convictions were recorded in respect of both counts.

Counsel for the respondent pointed, correctly, to this legislative change which postdates those authorities, as relevant: s 9(6A) of the Penalties and Sentences Act renders the “last resort” principle inapplicable to s 228D offences, among others.

Section 9(6B) requires the court, in sentencing such an offender, to have regard primarily to:

"(a)the nature of any image of a child that the offence involved, including the apparent age of the child and the activities shown; and

(b)the need to deter similar behaviour by other offenders to protect children; and

(c)the prospects of rehabilitation including the availability of any medical or psychiatric treatment to cause the offender to behave in a way acceptable to the community; and

(d)the offender's antecedents, age and character; and

(e)any remorse or lack of remorse of the offender; and

(f)any medical, psychiatric, prison or other relevant report relating to the offender; and

(g)anything else about the safety of children under 16 the sentencing court considers relevant."

It is certainly the case that a constraint upon the imposition of a sentence involving actual imprisonment has been removed with the introduction of s 9(6A). It does not, however, follow that any person convicted of an offence under s 228D must be sentenced to actual imprisonment.

Counsel for the respondent's submission that imprisonment should now be regarded as inevitable for offending of the proportions here must be rejected. And while the authorities which I have cited may have diminished relevance so far as the question of actual time to be served is concerned, the legislative change does not necessarily have any bearing on the head sentences regarded as appropriate in those cases.

It is worth noting, too, that s 9(6B) prescribes deterrence and antecedents as both of primary importance. That makes it difficult to accept the submission of counsel for the respondent that the legislative change is designed to place emphasis on deterrence at the expense of antecedents or any of the other factors prescribed in s 9(6B).

In the present case, of the factors prescribed by s 9(6B), the nature of the images involved and the need for deterrence weigh against the applicant. Others of the prescribed factors, however - the prospects of rehabilitation, antecedents and character and his remorse - are favourable to him. The remaining aspects would seem to be neutral.

Counsel for the respondent pointed out that the limited number of images involved was not necessarily a factor of great relevance. It might be argued, though, that it does have some bearing on the question of deterrence and the safety of children under 16 so far as the s 9(6B) factors are concerned; but, in any event, it is plainly of some, if secondary, relevance. The circumstances of this case are clearly distinguishable from those involving hundreds or even thousands of images.

Both sentences should be set aside because of the errors earlier identified. Having regard to the matters I have discussed, and the fact that the applicant has already spent something in excess of two months in custody, I would sentence him to six months imprisonment, suspended forthwith, with an operational period of two years.

As to the Commonwealth offence, having regard to s 17A, I do not think it is possible to be satisfied that no sentence but imprisonment was appropriate for the downloading of four images, the content of which is unknown other than that it was admitted to be child exploitation material.

Again, having regard to the circumstances of the case, including the fact that the applicant has spent over two months in custody, I set aside the sentence imposed below and order that the applicant be convicted and released upon his giving security by recognizance to be of good behaviour for a period of two years. The nature of that order, which is made under s 20 of the Crimes Act 1914, should be explained to the applicant by his legal representative.

THE PRESIDENT: I agree with Justice Holmes' reasons and proposed orders.

I emphasise that the introduction of s 9(6A) and s 9(6B) to the Penalties and Sentences Act 1992 (Qld) does not have the result that actual custody is inevitable for offences against s 228D Criminal Code 1899 (Qld). The maximum penalty for this offence is five years imprisonment.

At the risk of sounding like Gilbert and Sullivan, I make the trite observation that the appropriate penalty for such an offence will always turn on the circumstances of each case, primarily those set out in s 9(6B) Penalties and Sentences Act. So much was conceded, rightly in my view, by the prosecutor at first instance.

Had I been sentencing the applicant at first instance, I would have imposed a sentence of 12 months probation on count 1 to ensure that the applicant received counselling and treatment and to assist in his rehabilitation.

On count 2 I would have imposed a sentence of 18 months imprisonment suspended fully with an operational period of three years.

The applicant has now spent over two months in custody. For that reason, the sentences suggested by Justice Holmes are the appropriate ones.

CHESTERMAN JA: I agree with the judgment of Justice Holmes and with the observations made by the President.

THE PRESIDENT: The orders are:

1.The application for leave to appeal is granted.

2.The appeal is allowed.

3.The sentences are set aside.

4.On count 1, the applicant is convicted and released upon his giving security by recognizance to be of good behaviour for a period of two years under s 20 of Crimes Act 1914 (Cth). The nature of that order is to be explained to the applicant by his legal representative.

5.On count 2, he is sentenced to six months imprisonment suspended forthwith with an operational period of two years.