SUPREME COURT OF QUEENSLAND

CITATION:	R v Brincat; Ex parte Attorney-General (Qld) [2020] QCA 248	
PARTIES:	R
v
BRINCAT, Dennis Gerard
(respondent)
EX PARTE ATTORNEY-GENERAL OF QUEENSLAND
(appellant)	
FILE NO/S:	CA No 160 of 2020
DC No 46 of 2020	
DIVISION:	Court of Appeal	
PROCEEDING:	Sentence Appeal by Attorney-General (Qld)	
ORIGINATING COURT:	District Court at Cairns – Date of Sentence: 12 July 2020 (Morzone QC DCJ)	
DELIVERED EX TEMPORE ON:	12 November 2020	
DELIVERED AT:	Brisbane	
HEARING DATE:	12 November 2020	
JUDGES:	Morrison and McMurdo JJA and Henry J	
ORDERS:	1.	Allow the appeal.
2.	Set aside the orders made on 21 July 2020.
3.		Order that on count 1 on the indictment, the respondent be sentenced to a term of six months’ imprisonment.
4.		On count 2 on the indictment, order that the respondent be sentenced to a term of 18 months’ imprisonment.
5.		Order that the respondent be eligible for parole on 12 May 2021.
6.	Direct that a warrant issue for the arrest of the respondent to lie in the registry for seven days.	
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent was convicted on his pleas of guilty for giving false or misleading information contrary to s 51(1) of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 and for possessing child exploitation material – where, for the first offence, the respondent was sentenced to 18 months’ probation, and for the second offence, 18 months’ imprisonment suspended immediately with an operational period of two years – where the respondent had a relevant criminal history – where the appellant submits that the sentences imposed were manifestly inadequate by the lack of a requirement to serve a period of actual custody – where the respondent concedes that his conduct was serious and it was aggravated by his relevant criminal history – whether the sentences were manifestly inadequate	
COUNSEL:	S J Farnden for the appellant
J J Sheridan for the respondent	
SOLICITORS:	Director of Public Prosecutions (Queensland) for the appellant
Arnell & Cooper Lawyers Pty Ltd for the respondent	
[1]	McMURDO JA:  This is an appeal against sentence by the Attorney-General under s 669A(1), of the Criminal Code.  In the District Court on 21 July this year, the respondent was sentenced for two offences.  The first was that he gave false or misleading information, contrary to s 51(1) of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004.  For that offence, he was sentenced to 18 months’ probation.  The second offence was that, in contravention of s 228D(1)(b) of the Criminal Code, he possessed child exploitation material and for that offence he was sentenced to 18 months’ imprisonment, suspended immediately with an operational period of two years.
[2]	The respondent had a relevant criminal history.  In 2015, he pleaded guilty to one offence of using a carriage service to access child pornography material, five offences of using a carriage service to transmit such material and an offence of the possession of child exploitation material.  Those offences were committed from late 2011 to December 2013.  On that occasion, he was sentenced to various concurrent terms, the effect of which was that he served six months in prison before being released on two years’ probation.  He was aged between 31 and 33 at the time of those previous offences and was 35 when he was sentenced for them.
[3]	The facts of the present offences were as follows.  The respondent was under the regime of the Child Protection (Offender Reporting and Offender Prohibition Order) Act because each of the previous offences was a reportable offence within that Act.  On 16 April 2019, police went to his house to conduct a compliance check and a device inspection in accordance with his reporting obligations under that Act.  They asked him what devices he had.  He told them that he had had a mobile but that he had run over it that day and broken it.  When police asked to see it, he told them he had already taken it to the dump.  That was a lie and constituted the first of the subject offences.  On the following day, police called his phone number and he answered.  He told them that he had purchased a new phone.
[4]	On 27 May 2019, police returned to his house where they executed a search warrant.  They found his mobile phone, which he had claimed had been destroyed, under a mattress in his bedroom.  The phone was subsequently examined by police and was found to contain a total of 1,581 images of child exploitation material.  Nearly all of those images were in category 1, meaning that they depicted no sexual activity.  There were some within categories 2 and 3 (depicting non-penetrative sexual activity with or without adults) and there was one image in category 6.  Possession of this material was the subject of the second offence.
[5]	The respondent was charged and declined to participate in an interview before he was released on bail.  He was convicted, on his pleas of guilty, on 12 June 2020 before being sentenced on 21 July.
[6]	The sentencing judge remarked that the respondent had participated “well and positively” in his probation program, but that something had occurred to bring about a “relapse”.  The judge noted that the respondent had lost his parents in 2013 and 2014, and his marriage had been lost as a result of his offending.  He was described by his Honour as a person who had worked hard in his own businesses.
[7]	The judge said he had to consider a number of things: the nature of the images and the apparent ages of the children depicted, the respondent’s prospects of rehabilitation, the need for the punishment to be just in all of the circumstances, a consideration of the paths to rehabilitation, personal and general deterrence, the denunciation of his conduct and the protection of the community.
[8]	The judge took into account his timely plea of guilty and his cooperation with the authorities.
[9]	Having considered some comparable cases, his Honour said that a term of imprisonment was warranted and that there was a question about how that ought to be served.  He considered that the considerations of punishment and rehabilitation might be balanced by the orders which he then pronounced.  Having done so, his Honour said that he had arrived at those sentences because he thought that some time in prison was unlikely to have any significant impact by way of a deterrent effect or on rehabilitation.
[10]	For the Attorney-General, it is submitted that the sentences imposed were manifestly inadequate, by the lack of a requirement to serve a period of actual custody.  That submission is made by reference to the following circumstances of the case.  The offending involved a high number of images, and even those falling within category 1 involved the exploitation of children, so that in no respect was the possession of this material a victimless crime (see R v Edwards [2019] QCA 15 at [67]-[68]); the exploitation of children can only be protected against through the imposition of appropriately deterrent sentences; the offending here was made more serious by the commission of count 1; and the criminal history of the respondent was also an aggravating feature (see s 9(10) of the Penalties and Sentences Act 1992 (Qld)).
[11]	Counsel for the Attorney-General made some particular criticism of his Honour’s conclusion that some period of actual custody was unlikely to have a significant impact as a deterrent.
[12]	The argument for the Attorney-General cites several decisions of this Court as sentencing yardsticks.  The first of them is R v Jones [2011] QCA 147, where a non-custodial sentence was imposed, but where the offender had no prior criminal history, a low prospect of re-offending and where the amount of the material was significantly less than in this case.
[13]	The next is R v Edwards [2019] QCA 15, where this Court did not disturb a sentence of 15 months’ imprisonment, with release after serving two months.  The offender in that case was a serving federal police officer, which was an aggravating circumstance, but he had no prior criminal history.
[14]	Next are two cases to which the prosecutor referred the judge in this matter, namely R v Sykes [2009] QCA 267 and R v Smith [2010] QCA 220.  In Sykes, the effective sentence was one of 15 months’ imprisonment with six months to be served in actual custody.  Sykes had no criminal history and there were fewer images than in the present case.  Smith was a sentence of 18 months, with release after serving three months.  The offender was in his early 20s and had a limited history, but not for similar offences.  There was a larger number of images in that case than in the present one.  A psychologist in that case concluded that the offences were out of character and were committed during an episode of severe depression.  Leave to appeal was refused.
[15]	The other cases cited for the Attorney-General here are R v Richardson; Ex parte Attorney-General (Qld) [2007] QCA 294 and R v Formenton [2018] QCA 77.  In Richardson, the offender was in his early 20s with no criminal history.  The prosecutor had told the sentencing judge that a sentence of 12 months could be appropriately served by way of an intensive correction order.  An Attorney-General’s appeal against his sentence of 12 months’ imprisonment, wholly suspended for three years, was dismissed.  In Formenton, the Court refused leave to appeal by an offender who was sentenced to 12 months’ imprisonment, wholly suspended, for the possession of child exploitation material.  He was 20 years of age at the time of the offence.  Like the respondent in the present case, he had attempted to hide the location of his mobile phone from police but, unlike the respondent here, he was not at any time subject to a statutory obligation to provide them with it.
[16]	The respondent seeks to adduce further evidence in the form of an affidavit which sets out steps he has undertaken for his rehabilitation since his sentence, his compliance with the probation order and the extent to which he has been publicly shamed for his offending.  I would admit that evidence and put on one side the question whether, strictly speaking, it is relevant to the sentence which should have been imposed.  The respondent has certainly been subjected to extensive public shaming, and he has received numerous threats on social media.
[17]	He has seen a psychologist on seven occasions and the psychologist’s report is exhibited to his affidavit.  In the psychologist’s view, the respondent’s “demonstrated reliability and punctuality make him suitable for ongoing community supervision and treatment”, and it was noted that the respondent had “expressed a high level of motivation to attend treatment”.  The psychologist considered that the respondent had made “modest gains during his treatment this year,” of which the main one was the “diminishment of his resistance to treatment, acceptance of the severity of his offending and motivation to seek help”.
[18]	The submissions for the respondent concede that his conduct was serious and it was aggravated by his relevant criminal history.  Ultimately, it is submitted that it would still be within this Court’s sentencing discretion, if persuaded to disturb the existing orders, to wholly suspend any term of imprisonment but impose a more extended period of probation.
[19]	I am persuaded that the sentences which were imposed in this case are manifestly inadequate.  The absence of a period of actual custody to be served was plainly unreasonable, a view which is fortified by the comparable cases which I have discussed.  The respondent had an immediately relevant criminal history.  Only a few years earlier, he had spent six months in custody on a similar offence of the possession of material.  The present offences were committed whilst he was under the regime of the Child Protection (Offender Reporting and Offender Prohibition Order) Act.  The offence which he committed against that Act carries a maximum penalty of five years’ imprisonment.  Of itself, it was a serious offence because conduct of that kind, if not appropriately punished, could undermine the beneficial operation of that regime.
[20]	The two offences in this case may well have attracted cumulative sentences.  Of itself, the possession offence, which carries a maximum penalty of 14 years’ imprisonment warranted a substantial term of imprisonment.  Having regard to all of the circumstances, it was not open to the sentencing judge to impose the orders which he did, which resulted in no period of actual custody.  It is to be hoped that the respondent can make further progress in his rehabilitation.  But, of course, that is not the only consideration.
[21]	The respondent must then be resentenced.  In that respect, the further evidence has some significance.  Counsel for the respondent submitted that this Court should exercise its residual discretion, so as to avoid the respondent going to prison.  In Green v The Queen (2011) 244 CLR 462 at pp 479 to 480, in the joint judgment of French CJ and Crennan and Kiefel JJ, reference was made to the circumstances which may combine to create an injustice, if a State appeal against sentence is allowed, as including “delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent’s release on parole or unconditionally, and the effect of re-sentencing on progress towards the respondent’s rehabilitation”.
[22]	In this case, there has been no significant delays since the original orders and the respondent has made only “modest gains” in his rehabilitation since then.  I would make the following orders: allow the appeal; set aside the orders made on 21 July 2020; order that on count 1 on the indictment, the respondent be sentenced to a term of six months’ imprisonment; on count 2 on the indictment; order that the respondent be sentenced to a term of 18 months’ imprisonment; and order that the respondent be eligible for parole on 12 May 2021.
[23]	MORRISON JA:  I agree.
[24]	HENRY J:  I agree.
[25]	MORRISON JA:  The orders are as follows:
1.	Allow the appeal.
2.	Set aside the orders made on 21 July 2020.
3.	Order that on count 1 on the indictment, the respondent be sentenced to a term of six months imprisonment.
4.	On count 2 on the indictment, order that the respondent be sentenced to a term of 18 months imprisonment.
5.	Order that the respondent be eligible for parole on 12 May 2021.
6.	Direct that a warrant issue for the arrest of the respondent to lie in the registry for seven days.