Whether or not a criminal conviction is recorded is often the most important issue for someone who comes into contact with the criminal justice system. In a recent judgment, the Queensland Court of Appeal examined whether a sentencing judge had properly exercised their discretion in deciding to record a conviction for a sexual assault offence.
The Court considered two key grounds of appeal:
- That the sentencing judge failed to provide adequate reasons for recording a conviction; and
- Whether the sentence was manifestly excessive.
Williams J, with whom Flanagan and Boddice JJA agreed, granted leave to appeal, allowed the appeal and set aside the sentence that recorded a conviction, but otherwise confirmed the sentence.
The applicant, who had been convicted of one count of sexual assault upon a 14-year-old complainant, was originally sentenced to 18 months’ probation with a conviction recorded. The applicant was a 35-year-old male and had been in a wheelchair since the age of two. He was on his university campus when the complainant approached him to return an item he had dropped. The applicant later approached the complainant and struck up conversation, including discussions about their studies. During the conversation, he told the complainant she was beautiful, cool and sexy and, intermittently touched the complainant’s leg and thigh. The complainant was uncomfortable and did not feel she could move away because of the position of the wheelchair.
While the complainant was actually 14, she had told the applicant she was 16 years old, and it was accepted that he had an honest and reasonable belief that she was not under 16 years. This supported a finding of exceptional circumstances so that actual imprisonment was not required.
In delivering the lead judgment, Williams J noted that no consideration had been given to whether recording a conviction was “appropriately proportionate” to the nature and seriousness of the offending. Her Honour referred to the sentencing remarks, observing that “[t]he reader is totally left in the dark.” Her Honour also noted that, at the original sentencing hearing, both the prosecution and the defence expressed the view that if a probation order were imposed, then no conviction should be recorded.
The judgement helpfully summarises the important observations of President Sofronoff in R v ZB [2021] QCA 9. Williams J referred to the comments of Sofronoff P that the “principal goal of the balancing process called for by s 12 was to choose the outcome which was of greater benefit to the community” and that the sentencing judge must consider the potential benefits and detriments to the community of adopting either course.
The decision is a helpful reminder of the careful application of section 12 of the Penalties and Sentences Act 1992 (Qld). Achieving a ‘no conviction’ order is highly desirable for all defendants especially those without criminal history or who are otherwise younger persons.