SUPREME COURT OF QUEENSLAND

CITATION:	R v Richards [2024] QCA 97	
PARTIES:	R
v
RICHARDS, Christopher Denis
(applicant)	
FILE NO/S:	CA No 5 of 2022
DC No 45 of 2020
DC No 505 of 2019	
DIVISION:	Court of Appeal	
PROCEEDING:	Application for Extension (Conviction & Sentence)	
ORIGINATING COURT:	District Court at Ipswich – Date of Conviction and Sentence: 12 February 2020 (Lynch KC DCJ)	
DELIVERED ON:	28 May 2024	
DELIVERED AT:	Brisbane	
HEARING DATE:	1 May 2024	
JUDGES:	Bond and Boddice JJA and Crowley J	
ORDERS:	1.	The application for leave to adduce further evidence be refused.
2.	The application for an extension of time within which to appeal against conviction and to seek leave to appeal against sentence be refused.	
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION RECORDED ON GUILTY PLEA – where the applicant pleaded guilty to one count of possessing child exploitation material and three summary charges, being one charge of possessing utensils or pipes that had been used and two charges of failing to take reasonable care and precautions in respect of a syringe or needle – where the applicant seeks an extension of time within which to appeal his conviction in respect of the count of possessing child exploitation material – where the applicant submits the plea of guilty was “falsely” entered – where there was no suggestion the plea was not entered in plain, unambiguous and unmistaken terms and in the exercise of free choice – where the applicant made admissions to police as to his knowledge of the material and his having accessed and viewed it – whether the appeal has no prospects of success
Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41, applied	
COUNSEL:	The applicant appeared on his own behalf
M J Wilson for the respondent	
SOLICITORS:	The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent	
[1]	BOND JA:  I agree with the reasons for judgment of Boddice JA and the orders proposed by his Honour.
[2]	BODDICE JA:  On 12 February 2020, the applicant pleaded guilty to one count of possessing child exploitation material and three summary charges, being one charge of possessing utensils or pipes that had been used and two charges of failing to take reasonable care and precautions in respect of a syringe or needle.
[3]	The applicant was sentenced to 12 months imprisonment, wholly suspended for an operational period of three years on the count of possessing child exploitation material.  The applicant was convicted and not further punished on each of the summary charges.  A conviction was recorded for the count and each charge.
[4]	The applicant makes applications for an extension of time within which to appeal his conviction and to seek leave to appeal his sentence, for the count of possessing child exploitation material.  The applicant also makes an application for leave to adduce further evidence.
[5]	The ground of appeal sought to be pursued, in respect of the conviction, is that the plea of guilty was “falsely” entered as the material was downloaded by his partner, who would stay at home and download pornography which he would enjoy watching upon his return when both were addicted to drugs.  The applicant says he made a quick choice upon the appearance of police to accept responsibility for possession of that material, even though it was material downloaded by his partner.
[6]	An extension of time within which to appeal a conviction will not be granted if an appeal has no prospects of success.  In my view, the applicant’s appeal has no prospects of success.
[7]	The applicant was represented at his sentence hearing, which proceeded on the basis of an agreed statement of facts.  There is no suggestion, in any of the material sought to be relied upon by the applicant or in his submissions, that the plea was entered at the hearing other than in plain, unambiguous and unmistaken terms and in the exercise of free choice.  A court will act on such a plea and there is no miscarriage of justice if the court does so, even if the person entering it is not guilty of the offence.
[8]	Further, none of the additional material sought to be adduced by way of further evidence supports a conclusion that the applicant was not guilty of the offence of possessing child exploitation material.  The applicant made admissions to police as to his knowledge of the material on the device and as to his having accessed and viewed it.  Those admissions were consistent with what was ultimately found on the device.  The fact that his partner may have downloaded that material did not provide any defence to an offence of possession of that material, in those circumstances.
[9]	At the hearing the applicant accepted that he had no ground to pursue an appeal against sentence, with his primary focus being the conviction for the offence of possession of child exploitation material.  A perusal of the sentencing remarks supports that conclusion.  Any application for leave to appeal sentence is also doomed to fail.
[10]	According to the agreed statement of facts, a search warrant for the applicant’s residence was obtained after police had identified an Australian IP address belonging to the applicant as sharing child exploitation material.  The internet service account was in the applicant’s name and included his personal details.
[11]	When the search of the residence was conducted on 6 June 2018, the applicant told police that they would “probably find something” on a laptop located on the floor near the kitchen.  The applicant said he had received it from a friend and had observed that it contained some child exploitation material.  The applicant also made admissions to downloading child exploitation material as recently as a couple of weeks prior and to viewing it on the device.  The applicant admitted to possessing 50 or more movies of “young girls doing things to themselves, to older people”.
[12]	A subsequent forensic examination of the device revealed that it contained child exploitation material, in both photographic form and videos.  Predominately, the material contained erotically posed or covert taken images with no sexual activity.  However, there were images and videos of non-penetrative sexual activity between children or solo masturbation by a child and of penetrative sexual activity between adults and children.  There was also one video containing sadism, bestiality or humiliation.
[13]	As the sentencing judge observed, possession of child exploitation material is not a victimless offence.  Real children are abused in very serious ways for the purposes of creating that material.  Downloading and viewing that material has the effect of promoting the exploitation of children for the sexual gratification of adults.
[14]	The sentencing judge accepted that the applicant’s possession of that material appeared to be out of character; that he had demonstrated he could be a useful and contributing member to the community; and that the applicant was genuinely remorseful.  Taking into account those mitigating factors, together with his early pleas of guilty and cooperation with the administration of justice as well as his admissions to police, a 12 month sentence of imprisonment, wholly suspended for an operational period of three years, was well within a sound exercise of the sentencing discretion.
[15]	As an appeal against conviction and an application for leave to appeal sentence has no prospects of success, the grant of an extension of time within which to seek leave to do so would be futile.
Orders
[16]	I would order:
1.	The application for leave to adduce further evidence be refused.
2.	The application for an extension of time within which to appeal against conviction and to seek leave to appeal against sentence be refused.
[17]	CROWLEY J:  I agree with the reasons of Boddice JA and the orders that his Honour proposes.