Court of Appeal Judgment Summary Notes – Criminal

CRIMINAL APPEALS

R v Ruha, Ruha & Harris; ex parte Cth DPP [2010] QCA 010 Keane JA Fraser JA Atkinson J 9/02/2010

Sentence Appeal by Cth DPP from the District Court — Grounds for Interference — Sentence Manifestly Excessive or Inadequate — The respondents pleaded guilty to an offence against s 135.4(3) of the Criminal Code 1995 (Cth), namely causing a loss to the Commissioner of Taxation — The respondents conspired together to defraud the Commonwealth by lodging false refunds for Goods and Services Tax with the Australian Taxation Office — Roland and Wikitoria Ruha were married, Harris was their cousin — Roland and Wikitoria Ruha were sentenced to a term of imprisonment of three years and it was ordered that they be released after serving 12 months of that term upon giving security by recognizance in the sum of $1,000 conditioned upon good behaviour for a total of three years — Harris was sentenced to a term of six months imprisonment with similar consequential orders — Each respondent was also ordered to pay $138,551.37 to the Commissioner of Taxation, each respondent being jointly and severally liable for that payment — On Appeal — The periods of imprisonment imposed by the sentencing judge in each case were as sought by the appellant and accepted as appropriate by each of the respondents — What was controversial was the time to be served in actual custody by each of the respondents — The prosecutor’s approach on appeal reflected the principle that in an appeal against sentence by the Crown, the Court will ordinarily not impose a more severe sentence than was imposed below if the increase is sought on the basis of a submission which was not made by the prosecutor at the sentence hearing — It is relevant to note in these appeals that the necessary deterrent and punitive effects of sentences for serious tax fraud must be reflected both in the head sentence and also in any provision for earlier release from custody — There can be no “mechanistic or formulaic” approach which requires sentencing judges to ensure that the proportion which the pre-release period bears to the sentence of imprisonment must or must usually fall within a range which is substantially narrower than the whole period of imprisonment, which is the range the statute expressly contemplates for recognizance release orders — If there are authoritative sentencing decisions of the courts of this State or the other States and the Territories which concern comparable circumstances the sentencing court should take those decisions into account in affording weight to the generally desirable aim of imposing like orders in like cases — Though there were differences in each respondent’s criminality, in each case it was of a high order — The respondents’ conspiracy was pre-meditated and persisted for nearly two years — Examination of decisions determine that Roland and Wikitoria Ruhas’ offending required that he and she serve a substantially longer minimum period of imprisonment than 12 months — Proper punishment requires that Harris serve the minimum period of 12 months in custody before release on recognizance — HELD: For Roland and Wikitoria Ruha, the order for release on recognizance be varied by substituting the period of 18 months imprisonment for the period of 12 months imprisonment, and for Harris the period of 12 months imprisonment is substituted for the period of six months imprisonment, otherwise confirm the sentences and orders.

R v Fidler [2010] QCA 025 Holmes JA Muir JA Chesterman JA 23/02/2010

Sentence Application from the District Court — Grounds for Interference — Sentence Manifestly Excessive — The applicant was convicted on her own pleas of guilty of 12 counts of dishonestly obtaining, and one count of attempting to obtain, a financial advantage by deception — All of the offences concerned breaching s 134.2(1) of the Criminal Code 1995 (Cth) by fraudulently obtaining or attempting to obtain fuel grant monies under the Energy Grants Credit Scheme through the lodgement of false claims — The applicant was sentenced to imprisonment for 36 months “on each indictment” to be released after serving 18 months upon her entering into a recognizance in the sum of $500 to be of good behaviour for a period of five years, and a reparation order in the sum of $174,609.47 was made in favour of the Commonwealth of Australia — On Appeal — The applicant who was self-represented did not challenge the appropriateness of the head sentences — A court exercising its discretion must have regard to all relevant circumstances and not, in effect, abdicate its responsibilities by the mechanical application of a pre-determined formula — Attempts to prescribe the circumstances in which departure from a perceived sentencing norm or practice is justified may assist in improving consistency of sentencing but are likely to discourage the proper exercise of the sentencing discretion by reference to all relevant considerations — The primary judge failed to impose a separate sentence for each offence on each indictment or to impose a head sentence for one offence on each indictment which reflected the applicant’s criminality — The primary judge imposed one sentence for all offences on each indictment — Counsel for the respondent accepted that this was impermissible and that it was thus necessary for this Court to exercise the sentencing discretion afresh — The applicant’s pleas of guilty were early, she is in very bad health and has pronounced psychiatric disabilities which partially explain her aberrant behaviour — HELD: Application for leave to appeal allowed, Appeal allowed, For count 1 on each indictment the applicant be sentenced to three years imprisonment, to be released after serving 12 months imprisonment, upon her entering into one recognizance in the sum of $500, to be of good behaviour for a period of five years, The terms of imprisonment to be concurrent and Convictions recorded but no further penalty imposed in respect of the other counts on the indictments.

R v Colless [2010] QCA 026 Chief Justice Holmes JA Muir JA 23/02/2010

Sentence Application from the District Court — Grounds for Interference — Sentence Manifestly Excessive or Inadequate — The applicant pleaded guilty to a series of sexual offences committed on 11 women over a 27 month period covering the years 2006-2007 — The offences included five instances of digital rape — For each of those rapes, the applicant was sentenced to 25 years imprisonment, of which he must serve at least 15 years (s 161A(a) Penalties and Sentences Act 1992 (Qld); s 182(2)(b) Corrective Services Act 2006 (Qld) — The learned Judge concluded that this did not fall into the worst category of such offending, such as to warrant the imposition of the maximum penalty — On Appeal — Previous appellate authority does not provide any definitive assistance in determining the appropriate penalty in this case — In support of the sentence imposed, the respondent relied on the learned Judge’s view that this case was more serious than R v Buckley [2008] QCA 45 — While the present applicant violated more victims, Buckley’s conduct displayed a persisting, sadistic brutality of an order which far surpasses that exhibited by the applicant — Also, Buckley was guilty of penile penetration, of both the vagina and anus — The repetitive extent of the applicant’s offending could reasonably be seen to minimize the significance of the circumstances that the rapes were digital not penile — The feature which critically distinguishes this case from those relied on by the Crown is the substantial number of complainants (11) and the prolonged period (27 months) over which the offending occurred, and that on the applicant’s admission, he would not have stopped but for his being apprehended — There were substantial mitigating circumstances: the applicant’s cooperation with the authorities from an early stage, including his confession to the crimes, saving an even more substantial police investigation; his genuine remorse; the early intimation of his intention to plead guilty, and his doing so, saving the resources of the State, and highly significantly, removing any prospect of the complainants having to give evidence and be subjected to cross-examination thereby re-living their appalling experience; the fact that without his confessions, convictions might not have been obtained on some of the counts; the absence of any prior criminal history and the applicant’s promising prospects of rehabilitation — The 25 year sentences for the rapes were manifestly excessive, and should be set aside — The effectiveness of his rehabilitation, having completed the sexual offender behaviour program, will obviously bear on the question whether at a future time recourse need be had to the mechanisms of the Dangerous Prisoners (Sexual Offenders) Act 2003 — HELD: Application for leave granted; Allow the appeal; Set aside the sentences of 25 years imprisonment and substitute sentences of 16 years imprisonment; Otherwise confirm the orders then made.

R v Dodd [2010] QCA 031 McMurdo P Muir JA Douglas J 26/02/2010

Sentence Application from the District Court — Grounds for Interference — Sentence Manifestly Excessive or Inadequate — The applicant pleaded guilty to one count of entering premises with intent to commit an indictable offence and one count of serious assault — An incident had arisen over the alleged distribution of inappropriate photographs of the cousin of Dodd’s girlfriend — He was sentenced to two years probation with convictions recorded — Originally Dodd had been sentenced in the Magistrates Court to two years probation with no conviction recorded and an order to pay the complainant $300 — The magistrate subsequently re-opened the sentencing proceedings and determined that she did not have jurisdiction — The matter then came to the District Court for sentence on an ex officio indictment — In sentencing the judge noted that Dodd had no previous convictions and that the offences were clearly out of character — Her Honour then stated: “All right. Well, in your case a conviction is recored.” — On Appeal — The transcript of the sentencing proceeding suggests that the judge did not give patent consideration to whether or not convictions should be recorded — Neither counsel made submissions on the issue, probably because they both assumed that, as convictions were not recorded when the sentence was originally imposed in the Magistrates Court, convictions would not be imposed in the District Court — With hindsight, that was a brave assumption — The judge did not articulate any reasons for recording convictions — This Court should now re-exercise the discretion — Dodd was a relatively young man, had a supportive upbringing, no prior convictions, an excellent work history and pleaded guilty at an early time, along with other relevant factors — The question of whether or not to record convictions in this case is finely balanced because of the serious nature of Dodd’s offending and the many factors in Dodd’s favour — His commission of these offences seems completely out of character and at a time when his life was at a low ebb — If the decision to not record convictions turns out to be misplaced and Dodd re-offends in any significant way during the two year probation period he is presently undertaking, he will be dealt with by the courts with the likely consequence of then having convictions recorded for these offences — HELD: Application granted, appeal allowed only to the extent of setting aside the order that a conviction is recorded on each offence, instead ordering that no conviction is recorded on each count.

R v Byrne [2010] QCA 033 McMurdo P Keane JA Douglas J 26/02/2010

Sentence Application from the Supreme Court, Trial Division — Grounds for Interference — Sentence Manifestly Excessive or Inadequate — The applicant pleaded guilty to fraud under the Criminal Code (Qld) and dealing in proceeds of crime in excess of $1,000,000 under the Criminal Code (Cth) — He was sentenced to three and a half years imprisonment on the Queensland offence and six years imprisonment with a non-parole period fixed after three and a half years for the Commonwealth offence — At sentence he was legally represented — On 15 October 2007 Byrne had pretended to be a customer of the Commonwealth Bank and withdrew $1.38 million from a term deposit account in the customer’s name and transferred it to the customer’s transaction account — The next day Byrne went to the same bank and completed documentation to enable the money to be telegraphically transferred to an account in Hong Kong — The primary judge noted that Byrne must have been aware that what he was doing was “of a serious criminal nature” and his conduct “was extravagant, it was bold, it was brazen, it was deliberate, it was planned” — On Appeal — In this Court, as Byrne was self-represented, his reasoning processes were exposed in his lengthy oral submissions and in his discussions with the judges — His reasoning processes were somewhat impaired — There is no evidence that he was not of sound mind when he committed the offences or when he pleaded guilty — It was considered that he probably was a vulnerable pawn cynically used by others — The assessment of him, having interacted with him in this Court, is that his reasoning processes and functionality are far from completely normal so that his culpability for his offending is less than it would be otherwise — Both he and the community would benefit from him being subject to the supervision available under a lengthy parole period — HELD: Application granted, Appeal allowed only to the extend of deleting the non-parole period being fixed at three years and six months and substituting an order that the non-parole period be fixed at 18 months.

R v Corr; ex parte A-G (Qld) [2010] QCA 040 McMurdo P Muir JA Douglas J 5/03/2010

Sentence Appeal by A-G (Qld) from the District Court — Grounds for Interference — Sentence Manifestly Inadequate — The respondent pleaded guilty on 15 October 2009 to doing grievous bodily harm with intent to disable (count 1) and rape (count 2) — The complainant in both counts was the same two and a half year old child — On each count, the respondent was sentenced to nine years imprisonment and a serious violent offence declaration was made — He will have to spend 7.2 years in prison before becoming eligible for parole — On Appeal — The respondent was 22 at the time of the offences and 24 at sentence — He had no relevant criminal history — The prosecutor at sentence tendered an agreed schedule of facts — The prosecutor tendered photographs which showed the injuries to the child and confirmed the viciousness of the attack on him — The prosecutor agreed with the judge’s observation that the rape offence was an episode of violence rather than of sexual gratification — No acceptance of the respondent’s contention that a rape offence is necessarily less serious and deserving of a lesser penalty if it can be categorised as an offence of violence rather than one giving sexual gratification — The appropriate sentence will not necessarily depend on whether the offending involved an aggressive violent act, sexual gratification, or as is often the case, a combination of both — In this instance the rape offence was a terrible violation of a vulnerable two year old child in the respondent’s care — It caused life-threatening injuries — It is a grave example of the serious offence of rape — R v TK [2004] QCA 394 is of some assistance in determining the proper sentence in this case but, unfortunately, neither counsel provided assistance to the sentencing judge — It does not assist the administration of justice when cases relied upon as comparable in an Attorney-General’s appeal against sentence are not placed before the sentencing judge by the prosecutor — Sentencing proceedings are not intended to be dress rehearsals for an Attorney-General’s appeal against sentence under s 669A(1) Criminal Code — There are significant mitigating factors in the present case — Importantly, he pleaded guilty at time — A sentence of 12 years imprisonment best balances the gravity of the offences and the need for general deterrence and denunciation on the one hand, with the mitigating factors and the desirability for and prospects of rehabilitation on the other — HELD: Appeal allowed, Sentence imposed in the District Court set aside and instead the following orders are made: The respondent is sentenced to 12 years imprisonment on each count, Declared to be convicted of a serious violent offence on each count, 520 days pre-sentence custody is declared to be time already served under the sentence.

R v CAU [2010] QCA 046 McMurdo P Fraser JA Douglas J 12/03/2010

Appeal Against Conviction & Sentence from the District Court — Verdict Unreasonable or Insupportable Having Regard to the Evidence — Objections of Points Not Raised in Court Below — Misdirection or Non-Direction — The appellant pleaded not guilty to three counts of indecent treatment of a child under 16 (counts 1 to 3); three counts of incest (counts 4, 9 and 11) and five counts of sexual assault (counts 5 to 8 and 10) in the District Court — The complainant was the appellant’s younger sister — The trial continued over nine days — The jury found him guilty of two counts of indecent treatment of a child under 16 (counts 1 and 3) and two counts of incest (counts 9 and 11) — The jury found him not guilty in respect of the remaining counts — The appellant was sentenced to terms of imprisonment — The prosecution case turned on the evidence of the complainant — The alleged offences were charged as occurring on various occasions between October 1998 and September 2007 when the complainant was aged between 13 and a half and 22 years — The complainant was cross-examined over three days — The transcript of that cross-examination is often confusing, and it is sometimes difficult to comprehend which questions and answers relate to which counts — When questioned about counts 6, 7 and 8 she said that she had “gone a blank on that one at this present time” — The complainant was excused from giving further evidence — In the absence of the jury defence counsel then pointed out in cross-examination, the complainant had no recollection of counts 6, 7 and 8 — This meant that he was effectively deprived of the opportunity to cross-examine her on those counts — The judge discharge the appellant on those counts — He gave the jury no direction as to how to treat the evidence they heard about those counts — On Appeal — Defence counsel and the prosecutor at trial told the judge, in the absence of the jury, that it was unnecessary in this case to direct the jury about the limited use to be made of evidence of the uncharged acts — Counsel for the respondent concedes that trial counsel misled the judge on this issue — That concession is correct for two reasons — First, the jury were given no guidance as to how to deal with the evidence they had heard about counts 6, 7 and 8 which the Crown abandoned at the close of its case — The jury should have been directed to disregard the evidence in respect of those counts — In the absence of such a direction, the judge’s general jury directions as to what was evidence in the case may have suggested that the evidence about counts 6, 7 and 8 was relevant to their verdicts — Second, there was evidence before the jury from the complainant that, since she was 13 and a half years old, the appellant had “tried to feel her boob” probably 20 to 25 times — The judge should have warned the jury against propensity reasoning in respect of that evidence: HML v The Queen (2008) 235 CLR 334 — There is a real danger that these two errors may have caused a miscarriage of justice — This is not a case despite these errors, the convictions can stand as no substantial miscarriage has occurred – It follows that the appeal against convictions on all counts must be allowed and a re-trial ordered — Necessary to say something briefly about a number of other grounds of appeal — A Dr Walsh, a clinical psychologist, gave evidence and the complainant’s academic record was tendered — Dr Walsh’s evidence was not admissible at trial — Once the complainant gave evidence it was a matter for the jury whether she was a credible witness — Dr Walsh also gave evidence in re-examination that the complainant told him of threats made against her by the appellant — This was an improper question in re-examination and the answer was inadmissible — Evidence of sexual abuse of the complainant by her father was led without objection — If there is a new trial, defence counsel must decide on instructions whether to investigate the relationship between the complainant and her father — HELD: Appeal allowed, Convictions on counts 1, 3, 9 and 11 are set aside and a re-trial on these counts is ordered.

Hayes v Surfers Paradise Rock and Roll Cafe P/L & Anor [2010] QCA 048 McMurdo P Fraser JA Chesterman JA 12/03/2010

Application for Leave from the District Court — General Principles — Points and Objections Not Taken Below — When Allowed to be Raised on Appeal — Hayes is an investigator employed by the Liquor Licensing Division — The first respondent company (SPRRC) conducts an “adult entertainment” business within its Gold Coast “Crazy Horse” nightclub under a permit issued under the Liquor Act 1992 (Qld) — The second respondent (Mick Pickos) is SPRRC’s nominee under that permit — A Ms Smith, an employee of SPRRC, gave cards to passers-by on Orchid Avenue some distance from the Nightclub — Ms Smith was respectably dressed and she appears to have behaved politely throughout — She stood on the footpath and did not walk towards any person to hand out the cards — When she spoke to passers-by she did not shout or talk loudly — Under s 29(d) of the Liquor Regulation 2002 (Qld) (the Regulation) the “permittee must ensure that spruiking or touting for business…occurs only on the permittee’s premises…” — On Appeal — All persons conducting “adult entertainment” businesses in the State may be affected by these regulatory provisions and those provisions are designed to serve the public interest — The construction questions are of sufficient substance and public importance to justify the grant of leave to appeal — The question for the Magistrate was whether Ms Smith’s conduct constituted “spruiking or touting for business involving adult entertainment” — The words “spruiking” “touting” are not defined in the Act, the Regulation or the permit — The entry in the Macquarie Dictionary for spruiking includes “to harangue prospective customers to entice them into a show, strip joint…” — The word “tout” is defined in the Macquarie Dictionary and in some senses the definition does not necessarily connote discreditable conduct though they do suggest at least potentially irritating or annoying behaviour for those who have no interest in buying what is touted — On the facts found by the Magistrate, Ms Smith behaved passively, perhaps surprisingly so for one engaged to solicit custom for such a business — It could not be said that she behaved importunately, and her conduct lacked persistence — Had it been intended to ban all public soliciting for what the legislature has sanctioned as a lawful business one would expect the Regulation to say so — The word “touting” does not comprehend all direct soliciting for business — It requires also something additional, some persistence, repetition, pestering or other importunate behaviour — The prosecution case was that SPRRC published an advertisement for adult entertainment by employing Ms Smith to hand out the cards advertising “Continuous Striptease” and “Private Lap Dancing” in contravention of s 168A(1) of the Act — Whilst the terms “striptease” and “lap dancing” describe the general nature of two aspects of the “adult entertainment” performed at the nightclub, the better view is that they do not themselves describe the sexually explicit nature of the acts involved in the “adult entertainment” — This advertisement is borderline, nevertheless s 168A(1) is not expressed in sufficiently broad or specific terms so as to render it a criminal offence to publish such general descriptions of behaviour which the legislature has provided may lawfully be conducted by the holder of an adult entertainment permit — HELD: Grant the application for leave, Allow the appeal, Set aside the order remitting the matter and order instead that SPRRC be acquitted of count 2 and that the complaint against it be dismissed, and costs.

R v McCosker [2010] QCA 052 Keane JA Holmes JA Chesterman JA 19/03/2010

Appeal Against Conviction & Sentence from the District Court — Particular Grounds of Appeal — Irregularities in Relation to Jury — Partiality — Appellant and co-accused were convicted of stealing grain valued at $159,418 from their employer — The appellant was sentenced to four years’ imprisonment with parole eligibility fixed at 11 September 2010 — The appellant and his wife had separated some weeks, or perhaps months, prior to the commencement of the trial but had remained on reasonably cordial terms — After his separation, and during the trial, the appellant lived with his sister — The appellant was tried in the District Court of Goondiwindi — Goondiwindi is a small town and the appellant had lived there for many years — He was known to many of its inhabitants — That fact gave rise to some difficulty in selecting a jury — During the jury selection process the trial judge twice asked the members of the jury whether, having considered things, any of them thought they might not have the necessary appearance of impartiality — A number of jurors were discharged — One juror, whom it is convenient to describe as H, who was known to and known by the appellant, did not respond to the judge’s invitation and did not indicate any concerns about her capacity to be and to appear impartial — On Appeal — In an affidavit a Ms Eglington (the former partner of the appellant) deposed having a conversation with H whilst the appellant was in hospital before the trial and stating to H “something like ‘He’s guilty of something but I don’t know what’” — During the trial the appellant talked to Ms Eglinton and in an affidavit stated that he “can’t remember speaking to her about H” — The affidavits of the appellant and Ms Eglington were ambiguous about the terms of the conversation between them on the Courthouse verandah during the trial — The affidavits did not address the point directly, leaving open the possibility that Ms Eglington had revealed to the appellant the damaging statement she made to H in February at the hospital — The two deponents were cross-examined on appeal — In cross-examination Ms Eglington blurted out a different story of her conversation with H and telling H allegations of the appellant stealing from the Royal Hotel and his “having a gambling problem” — Neither of these aspects appear in her affidavit — In addition it emerged unexpectedly in the testimony that the appellant’s sister was present during the conversation — Both the appellant and Ms Eglington were unsatisfactory witnesses and the appellant’s testimony was rejected as false — The evidence of Eglington has all the hallmarks of invention — It is accepted that when speaking to H about her unhappy and unsatisfactory domestic relationship she mentioned her belief that the appellant to be guilty of “something” — This was told to the appellant on the second or third day of the trial, however the appellant did not inform his solicitor or counsel of what Ms Eglington had told H, and sought no advice with respect to it — It should be remembered that the appellant took no objection to H’s selection despite his knowledge of her friendship with Ms Eglington, and himself — The fair minded observer aware of the facts who saw the accused waive his right to object to the juror would not doubt the integrity of the trial process — The person with most at stake and full knowledge of the facts chose to accept the adjudication of the tribunal, including the juror — There are strong pragmatic reasons for holding an accused to his initial choice, particularly in a small town with a limited pool of jurors — The appellant was convicted after a trial, showed no remorse for his very substantial theft from his employer and maintained he had been wrongly convicted — HELD: Appeal against conviction dismissed, application for leave to appeal against sentence refused.

R v Pham [2010] QCA 088 Holmes JA Chesterman JA Atkinson J 20/04/2010

Sentence Application from the Supreme Court, Trial Division — Grounds for Interference — Parity between Co-offenders — Whether Sentence Manifestly Excessive — Pham was convicted after pleading guilty to one count of supplying a dangerous drug and one count of producing a dangerous drug — The drug involved was methylamphetamine — Pham was sentenced to three years imprisonment with an order the date on which he was eligible for release on parole was fixed at 24 September 2011 — Pham was sentenced at the same time as a co-accused Obradovic, who pleaded guilty to one count of producing the dangerous drug methylamphetamine and was sentenced to three years imprisonment suspended after he had served six months with an operational period of four years — Pham and Obradovic were employed by Ace Waste Pty Ltd, a private company contracted by other private companies and government agencies for the destruction of medical waste, out of date pharmaceutical drugs and quarantine items by Australian customs service, the Queensland police service and Queensland Health — Pham was approached by a man Uprichard and agreed to participate in a scheme whereby pseudoephedrine based tablets were to be stolen and provided to Uprichard so he could manufacture methylamphetamine — On Appeal — This was a very serious example of this offence — It was an organised operation involving a serious breach of trust as an employee — Pham’s conduct bore a higher degree of criminality than other participants in the scheme — Pham’s personal circumstances were unremarkable — Pham’s offending was for profit, although part of that was used to fund his own drug use — He had a criminal history and continued to offend whilst on bail for these offences — The learned sentencing judge observed, correctly, that Pham’s criminality was at a higher level than Obradovic; but there is no obvious explanation for the extent of the disparity in sentencing for the count of production — Such disparity between co-offenders leads to a justifiable sense of grievance — The respondent conceded on the hearing of the appeal that parity between the offenders required a reduction of the penalties imposed upon Pham — There was also, as the respondent conceded, a sentencing error when the sentences imposed on Count 1 and Count 2 are read together — Section 160F(2) of the Penalties and Sentences Act 1992 (Qld) provides that when fixing a date as the date an offender is to be released on parole, the date fixed by the court must be a date relating to the offender’s period of imprisonment as opposed to a particular term of imprisonment — Pham’s period of imprisonment was six years, as such the sentencing judge could impose a parole eligibility date but not a parole release date — As there were errors in the sentencing process, it falls to this court to exercise the sentencing discretion anew — HELD: Application for leave granted, Appeal allowed, Set aside the sentences imposed and instead sentence the applicant to imprisonment on Count 1 for 18 months, for Count 2 for 4 1/2 years with the applicant’s parole eligibility date being 24 March 2011.

R v Cruz; ex parte Cth DPP [2010] QCA 090 Holmes JA Muir JA Chesterman JA 23/04/2010

Sentence Appeal by Cth DPP from the District Court — Cruz was convicted on his own plea of guilty, on an ex officio indictment, of one count of importing child pornography material contrary to s 233BAB(5) of the Customs Act 1901 (Cth) — He was sentenced to three years imprisonment to be released after serving 12 months upon giving security by recognizance in the sum of $1,000 to be of good behaviour for three years — Cruz, a Filipino citizen, worked as a chief engineer on commercial shipping — In April 2009, he arrived at Brisbane international airport intending to sign on to a merchant vessel at Gladstone — Customs officers searching his bag found child pornography material on a number of different forms of electronic storage device, including camera memory cards, a laptop and two computer hard drives — On Appeal — It was not unreasonable for the learned judge to infer that having a limited command of English would affect the respondent’s ability to engage in leisure activities; reading and watching television are obvious examples — The learned judge in this instance was entitled to give weight to the respondent’s isolation and separation from his family and to reflect those circumstances by reduction of the custodial component of the sentence — In addition, s 16A of the Crimes Act 1914 (Cth) obliged her Honour to take into account the effect of the sentence on the respondent’s family — This respondent was not charged with an offence of producing pornography or of importing it for commercial distribution — It may be, indeed, that he faces further charges in the Philippines in light of the contents of the videos, but he did not stand to be sentenced in this country in respect of offences committed by or in their making — The importation of the material occurred as an incident of his transit through Australia — It was not done with any intent to disseminate it, or even to retain it, in this country — The applicant’s co-operations as manifested by an ex officio plea, his apparent remorse, the difficulties he faced in separation from his family in an unfamiliar environment, his good work record and lack of previous convictions warranted a reduction of the time to be served to one third of the head sentence — HELD: Appeal dismissed.

R v SBR [2010] QCA 094 McMurdo P Holmes JA Muir JA 30/04/2010

Sentence Application from the District Court — Grounds for Interference — Sentence Manifestly Excessive or Inadequate — SBR was sentenced after pleading guilty to three counts of indecent treatment of a child under 12 and one count of rape, to two years probation for the indecent treatment offences, and to four months detention and twelve months probation for the offence of rape — A conviction was recorded only for the offence of rape — The complainant , who was the applicant’s sister, was between seven and ten years of age at the time of the offences — On Appeal — From s 183 and s 184 of the Penalties and Sentences Act 1992 (Qld) it can be seen that the “primary position” in relation to the recording of the conviction was that conviction was not to be recorded — The primary judge’s decision to record a conviction seems to have been motivated principally by his conclusion that the rape was “a most serious offence” and by his understanding that there was a “principle” which applied “even where the offender is a juvenile”, namely that “serious sexual offences against children almost inevitably result in a custodial sentence” — It is impossible to resist the conclusion that his Honour’s focus on these considerations led him to give insufficient weight to “all the circumstances of the case: and the other matters which s 184(1) required to be considered — Amongst the matters required to be considered by s 184(1) was the applicant’s youth — He was no older than 15 and his social, emotional and moral development appears to have been impeded by his home environment — The pre-sentence report hold out good prospects of rehabilitation — It is in the interests of the applicant and of the community that the applicant’s good prospects of rehabilitation and of “finding and retaining employment” not be impeded unnecessarily — A review of recent decisions provides examples of convictions not being recorded where the offending conduct has been at least as serious as that of the applicant — HELD: Application allowed for leave to appeal allowed, Appeal against sentence allowed but only to the extent that the order recording the conviction be set aside.

R v Hayes [2010] QCA 096 Holmes JA Chesterman JA Ann Lyons J 30/04/2010 Sentence Application from the District Court — Grounds for Interference — Sentence Manifestly Excessive or Inadequate — Hayes pleaded guilty to 10 offences each involving a form of dishonesty — Nine offences were offences against various sections of the Criminal Code 1899 (Qld) with one other offence charging Hayes with dishonestly obtaining a financial advantage from the Commonwealth — Hayes was sentenced to four and a half years’ imprisonment for the offence set out in count 7 of the state indictment and would be eligible for parole after having served 18 months — On each of the other counts in the state indictment and on the one count on the commonwealth indictment she was sentenced to 18 months’ imprisonment, with all counts to be served concurrently — Counts 1 and 2 on the state indictment related to obtaining $390 from Cash Converters using some of her sister’s means of identification which she had stolen — Counts 3, 4, 5 and 6 relate to the defrauding of an electrical retailing goods retailer using identification she had stolen from a friend — Counts 7 and 8 relate to an elaborate, sophisticated and determined fraud which paid Hayes over $340,000 — She made false claims upon an insurance company with which she had taken out a personal accident policy covering her and her husband against injury and lost income following an injury — On 30 March 2007 Hayes informed the insurer that she had accidentally fractured her left ankle and a bone in her foot and broken her collar bone — Further deterioration occurred and in September 2007 she informed her insurer that the whole of her left foot required amputation — Copious documentation was supplied containing forged signatures from the doctor and surgeon setting out details of the amputation and her hospitalisation — The applicant is sound of limb — Her left foot, with all five toes, remains attached to her leg — In January 2008 Hayes claimed that her husband had suffered a debilitating injury to his right eye — The claim, which was quite false, was supported by a forged report from an eye specialist in Brisbane — The insurer paid out $110,000 — In March 2008 she made a further claim that the husband’s right eye had become damaged and would require removal — This claim was eventually investigated which led to the detection of the applicant’s fraud — Count 9 involved the passing of a valueless cheque with count 10 involving deceptions involving Newstart Allowance — On Appeal — The applicant is married but has no children — A largely unhelpful report from Dr Ian Curtis diagnoses Hayes with a borderline personality disorder which he thought was likely to make her “reckless and dangerously impulsive” and to act “without thinking first about the consequences — The applicant’s offending was rightly described as “systematic and persistent” — It showed a considerable degree of sophistication — The offending was cynical and calculated – The only appropriate penalty was a substantial term of imprisonment — The sentence ultimately imposed was modest given the scale of offending and the manner in which the frauds were perpetrated — HELD: Applications refused.