Case Note QLD – R v ZB [2021] QCA 9

 R v ZB [2021] QCA 9

Murray Torcetti Lawyers are criminal lawyers in Caboolture. We write our own case notes from recent criminal decisions for internal purposes.

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Facts: An appeal by the defendant for the recording of a conviction for possessing child exploitation materials, 98 images some of which at the higher end of the scale.

At first instance the defendant was sentenced to probation for two years with a conviction being recorded. The recording of a conviction resulted in the defendant being required to report under the Child Protection (Offender Reporting and Offender Prohibition Order) Act for 5 years.

The appellant had provided assistance to police, made full admissions, was a relativity young man, was in a stable relationship, had the support of family, references were tendered on his behalf and he was seeking treatment for anxiety. Against these factors, when weighing the ‘nature of the offence’ it was suggested by McMurdo the sentencing judge was “so influenced by the abhorrent nature of images… it outweighed all the other considerations” a conviction was recorded.

Finding: For separate reasons, Sofronoff P, McMurdo JA and Jakson J allowed the appeal, affirmed the 2 years probation without a conviction being recorded.

Sofronoff P examined the factors weighing for and against the recording of convictions generally. Is the community better served by being made aware of the conduct of the defendant, giving vindication to the community for its trust in order according to law or does the sentencing judge see the greater benefit to the community by not placing obstacles in the way of rehabilitating an offender? Not recording a conviction is not a case of “tenderness to the offender”. Where probation is being imposed, there must be more to justify the recording of a conviction.

McMurdo JA looked to the additional implications of being a reportable offender and the reasoning of the sentencing judge drawing analogies to R v Bunton [2019] QCA 214 (conviction not recorded on appeal). McMurdo found the sentencing judge had placed too much weight on the “nature and seriousness” of the offence (without trivialising the offending) against the other factors.

Jackson J assessed the views of the President and MuMurdo JA, adding that like in Bunton (but absent from this case) medical evidence suggesting a defendant proposed no real risk to children should be offered before an order for no conviction should be made.

Notes for practice:

  • Explanation of recording a conviction and the balancing of factors for the community one way or the other;
  • Comments to support that where probation is being imposed, there should be additional factors as to why a conviction is being recorded.

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