Overview

As a result of amendments made to Queensland’s Penalties and Sentences Act in 2020, in all cases involving charges of child exploitation material, or child abuse material, the court is required to impose a sentence of imprisonment unless there are exceptional circumstances.

On 13 March 2024, the Court of Appeal handed down its decision in R v OAB [2024] QCA 51. The case considered whether a non-custodial sentence should have been imposed for an offence of possessing child exploitation material (CEM). The full text to the decision can be found here.

Background to appeal

The applicant, who appealed his sentence, was convicted of one charge of possessing child exploitation material (between 27 October 2021 and 4 November 2021). The facts were summarised as follows:

The offending came to light when his wife found images she believed to be of children on a USB in his study. The applicant told her he had an addiction and would get help. The applicant’s wife gave the USB to police. The USB contained 48 images of female children, aged between 12 and 15, posing in a sexual manner. Two images were of girls with their breasts exposed. All of the other images depicted girls wearing minimal clothing. The USB (and the applicant’s mobile phone, which his wife had also given to police) also contained adult pornography. Police executed a search warrant at the applicant’s house and seized numerous electronic devices. No additional child exploitation material was found.

He was 52 years old, with no prior criminal history. He had consistent employment in the construction industry, and continued to provide ongoing care and support to his wife and two children, even after the breakdown of his marriage and separation following his arrest. His wife had borderline personality disorder and substance abuse issues, and his children had cerebral palsy and autism spectrum disorders.

Mental health issues

Prior to being charged, the applicant had received treatment from a psychiatrist, and was diagnosed with ADHD and a major depressive disorder. These conditions stemmed from a depression caused by the ongoing health difficulties of his wife and children, which had taken over much of the family life. He continued receiving treatment up to sentence.

After he was charged, he sought treatment specific to his offending from a psychologist at the Forensic + Clinical Psychology Centre (who we refer all CEM/CAM clients to). He attended 19 sessions prior to being sentenced. He was treated for a clinical level of compulsive pornography addiction, with a final assessment determining that he had a positive prognosis and low-risk of re-offending.

Submissions on sentence

The Crown submitted that a sentence of between 6 to 9 months imprisonment should be imposed, accepting that it was open to suspend it entirely. Defence counsel submitted that a probation order should instead be imposed, with no conviction recorded.

Ultimately, while accepting the various factors in mitigation, the sentencing Judge imposed a sentence of 6 months imprisonment, which was wholly suspended. As a result, a conviction was automatically recorded, making him a reportable offender for a period of 10 years. One of the factors the Judge took into account in reaching that decision was that he had been receiving treatment prior to his offending, meaning that less weight was placed on his mental health issues.

He appealed against that decision, arguing that the sentence was too harsh and that exceptional circumstances were sufficiently established to allow for a sentence without a conviction.

Court of appeal decision

The Court of Appeal accepted that the evidence about the applicant’s mental health justified a reduction in the sentence with respect to the usual principles of denunciation and general deterrence.

Relevantly, the court noted that the sentencing Judge didn’t properly take into account the fact that the psychiatric treatment the applicant had been receiving prior to being charged was not targeted at his compulsive behaviour, nor was it directed at the offence for which he was charged. This was an error which allowed the Court of Appeal to re-sentence the applicant.

In determining the level of seriousness of the offence, the court referred to R v Sperling, which involved only 5 videos, but of a worse category. Sperling was a younger man, at 35 years old, with an otherwise good character and with significant rehabilitation completed prior to sentence. He received fine of $2,000 with no conviction recorded, following a successful appeal.

When comparing the facts of Sperling with the present application, the Court held that “notwithstanding that the applicant possessed many more images, in my opinion the objective seriousness of the applicant’s offending overall is at a lower level than the offending in Sperling”.

The Court of Appeal also considered other factors in the applicant’s favour were the reduced need for general deterrence because of his mental health issues, his very good prospects of rehabilitation and otherwise good character. Overall, the relevant circumstances leaned in favour of substantial leniency in the applicant’s sentence.

Ultimately, the court held:

Consistently with that yardstick sentence in a more serious case, I conclude that a term of imprisonment, which would necessarily require a conviction to be recorded, is not a just and appropriate sentence for the applicant’s offending and his personal circumstances.

The Court of Appeal determined that 2 years probation was an appropriate order.

Recording of a conviction

Finally, with respect to the recording of a conviction, the court referred to R v ZB, stating:

Relevantly to the present case, Sofronoff P observed that “once it is decided that an offender’s case is one that is prima facie apt for probation, a question will arise whether the prospects of rehabilitation offered by the probation process might be unduly jeopardised by the possible effect that the recording of a conviction might have upon the offender’s chances of finding employment and upon the offender’s social and economic wellbeing”.

The court went on to concude a conviction should not be recorded for the following reasons:

In light of the otherwise productive and blameless life lived by the applicant, his mature age does not favour recording a conviction. Reference to the applicant’s previous experience of losing his employment apparently as a result of disclosing his offending serves to illustrate the risk that recording a conviction might result in him losing employment, with potentially disastrous consequences for his mental health. In that way, recording a conviction could pose a significant risk to the applicant’s social wellbeing as well as his economic wellbeing.

The inherently serious nature of the offence favours recording of a conviction, but the combined effect of the low level of the applicant’s example of the offence, the favourable assessment of the applicant’s risk of recidivism, the potentially serious adverse consequences of recording a conviction, and the contribution of the applicant’s mental health condition to his offending, support the view that a conviction should not be recorded.

Whilst not recording a conviction would make it more difficult for those in care of children who might come in contact with the applicant to find out about his past offending, the significance of that consideration in favour of recording a conviction is weakened by the absence of any finding of a risk of paedophilic behaviour, the positive evidence of a low risk of recidivism and the circumstance that the probation order sought by the applicant will to some extent replace the monitoring to which the applicant would be subject under the Child Protection (Offender Reporting and Offender Prohibition Order) Act if a conviction were recorded.

Summary

Even though each case will depend entirely on its own facts, it is clear that early engagement in treatment specific to the offence can have a significant impact on the end result in CEM cases. Jail is not inevitable, and with the right strategy and representation, convictions can also be avoided.

If you’ve been charged with a child exploitation material or child abuse material offence, it is vital to engage an experienced and successful defence lawyer to ensure that exceptional circumstances can be demonstrated.

With our careful advice and representation, we guarantee you’re in the safest possible hands. If you have any questions about Child Exploitation Material offences, the Offender Reporting regime, or require expert representation when facing court, please contact us.