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Boy with capacity of an eight-year-old wins appeal against child pornography convictions

Queensland’s highest Court has set aside convictions recorded against a teenage boy who pleaded guilty to numerous child pornography offences after it was revealed he had the developmental age of an “eight-year-old’’ at the time of his offending.

The boy, identifiable only as HCC and is now aged 18, pleaded guilty in the Childrens Court on 11 February 2020 to nine offences–including using the internet to access, transmit, make available and possess child pornography.

The court was told the boy was aged 15 and 16 when the offences were committed between 6 April and 19 December 2017, but that it was impossible to determine if he had any “paedophilic traits’’ based on a report stating he had the “development age of an eight-year-old.”

Childrens Court Judge Tony Moynihan QC in March sentenced HCC to a wholly suspended 12-month term of detention, two-years’ probation and ordered convictions be recorded for all nine counts.

Lawyers for HCC appealed the sentence on the sole ground the recording of convictions was manifestly excessive.

The Court of Appeal in Brisbane, in a recently published decision, allowed HCC’s appeal and set aside the recording of convictions on all nine counts.

The Court, comprising Court of Appeal President Walter Sofronoff, Justice Debra Mullins AO and Justice Jim Henry, did otherwise confirm the wholly suspended detention order and probation imposed by Judge Moynihan QC.

Justice Mullins AO, in an ex-parte decision delivered in August, said a pre-sentence report prepared ahead of the boy’s initial sentencing included medical evidence detailing his learning and developmental difficulties.

“(A) psychologist … was of the opinion that (HCC) had developed mental delays and diagnosed a language disorder,’’ she said.

“As a consequence, (HCC) was bullied at school, had few friends and very poor self-esteem.

“He had little knowledge concerning sexuality … and has the development age of an eight-year-old (child). So it is very difficult to determine if (HCC) has paedophilic traits.’’

Justice Mullins AO also noted Judge Moynihan QC had taken into account that HCC was himself “groomed’’ and encouraged to offend by other, much older, online users.

“All (of) the circumstances of the case (against HCC) did not justify the recording of convictions and the sentencing discretion miscarried,’’ she said.

Justice Sofronoff and Justice Henry agreed.

The full decision can be found here.

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