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 R v Barany [2018] QCA 137

appeal against sentence — making available child exploitation material using carriage service offence contrary to s 474.19(1) of Commonwealth Criminal Code — original sentence imposed 9 months’ imprisonment with immediate 2 year recognizance release order — miscarriage of justice — instructions to submit to sentencing judge that no conviction should be recorded were not carried out — offender’s statement and that of his wife in support of such submission were not conveyed to judge — decision made for forensic purposes — for that reason cannot be concluded that there has been miscarriage of justice — putting to one side and considering case as one in which offender’s advocate simply acted contrary to instructions — miscarriage demonstrated by solicitor’s omission if, having regard to omitted material, conviction might not have been recorded — necessary to consider whether discretion conferred by s 19B(1) might have been invoked by additional material — whether offender’s “character, antecedents, age, health or mental condition” would have rendered it “inexpedient” to inflict any punishment, to inflict only nominal punishment or to release offender on probation — antecedents — s 16A(2)(m) — offender’s character and antecedents were dealt with in psychologist report provided to sentencing judge — submissions regarding travel difficulties associated with conviction not made to sentencing judge — not persuaded issues concerning travel difficulties constitute “antecedents” — evidence falls short of establishing that there will be any effect upon offender’s travel or business if conviction recorded — not established conviction will prevent offender’s entry to any particular country or that tasks associated with travel for business purposes could not be carried out by someone else — any difficulties would constitute no more than the usual burdens that follow conviction for serious offence — other matters raised by offender’s wife in statement that was not submitted did raise matters of fact in mitigation — these matters already addressed in psychologist report and taken into account by sentencing judge — offender’s solicitor’s omission to seek order that no conviction be recorded and omission to put forward statements led to no miscarriage of justice — no facts raised in contested material capable of justifying such an order — general deterrence — s 16A(2)(ja) — Australian community’s denunciation of sexual offences involving children and requirement for general deterrence are reasons why offenders against s 474.19(1) of Commonwealth Criminal Code will almost inevitably be sentenced to term of imprisonment and have conviction recorded — leave to appeal refused
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