DPP v Adamson (Unreported, County Court of Victoria, Judge Ryan, 16 May 2014)
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CRIMINAL LAW – Sentence – Use of Internet to groom or procure child for sexual act –Criminal Code (Cth) ss 474.26, 474.27 – Use of Internet to procure child for or produce child pornography – Crimes Act 1958 ss 68, 69 – Sentencing judge found all victims suffered harm – Whether a presumption of harm to child victims arises in respect of cybersex offences – Persuasive presumption – Clarkson v The Queen (2011) 32 VR 361, considered – Cooper v The Queen [2012] VSCA 32, distinguished – Harm need not be immediate or manifest – Nature of acts which permit assumption of harm – Presumption applies to pornography offences where victims under 18 years.
CRIMINAL LAW – Appeal – Sentence – Harm conceded at first instance – Argument precluded on appeal – Romero v The Queen (2011) 32 VR 486, applied – Crown may have adduced evidence at first instance if harm in issue – Appeal raising specific error dismissed.
CRIMINAL LAW – Sentence – First indictment containing 28 charges of using Internet to commit sexual offences involving children – Term of imprisonment of three years and nine months – Second indictment containing two charges of blackmail and one of conspiracy to blackmail – Term of imprisonment of five years and seven months – Total effective sentence of six years and seven months – Whether error as to appellant’s moral culpability – Individual sentences on first indictment involving use of Internet lenient – Total effective sentence well within range – Leave to appeal refused.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr A S Dickenson
Tribeca Legal
For the Crown
Mr D A Trapnell QC with Ms A Hassan
Ms V Anscombe, Acting Solicitor for Public Prosecutions
For the Intervener
Mr R Bromwich SC with Ms K Breckweg
Director of Public Prosecutions (Cth)
WARREN CJ REDLICH JA WEINBERG JA:
On 14 April 2014, the appellant pleaded guilty in the County Court to charges arising from two indictments. On the first indictment, he was sentenced on multiple charges of using a carriage service to procure a person under 16 years of age for sexual activity, using a carriage service to groom a person under 16 years of age for sexual activity and using a carriage service to transmit indecent communications to a person under 16 years of age. He was also sentenced on that indictment on charges of producing child pornography, procuring a minor for child pornography, and possessing child pornography.
All of the offences on the first indictment were committed via the internet. Leave to appeal the sentences on the first…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Adamson v The Queen [2015] VSCA 194
Case
[2015] VSCA 194
Decision Date
CaseChat Overview and Summary
In the case of Adamson v The Queen, the appellant, Adamson, was convicted of multiple sexual offences involving children through the use of the internet. The appellant also faced charges of blackmail and conspiracy to blackmail. Adamson appealed against the total effective sentence of six years and seven months, which was comprised of a three-year and nine-month sentence for the first indictment and a five-year and seven-month sentence for the second indictment. The appellant argued that the sentencing judge erred by not considering his moral culpability and that the individual sentences for the first indictment were lenient.
The court was required to determine whether the presumption of harm to child victims in cybersex offences applies and if so, the extent to which it should influence the sentencing. Additionally, the court needed to examine the arguments regarding the appellant's moral culpability and the appropriateness of the individual sentences for the first indictment.
The court found that the presumption of harm to child victims in cybersex offences is persuasive and applies to cases involving pornography offences where the victims are under 18 years old. This presumption was considered in light of Clarkson v The Queen and Cooper v The Queen. The court also noted that harm need not be immediate or manifest and that the nature of the acts committed permits an assumption of harm. However, the court dismissed the appellant's argument regarding his moral culpability, as the harm to the victims had been conceded at first instance. The court held that the total effective sentence was well within the appropriate range and did not represent an error.
The court refused leave to appeal, upholding the total effective sentence of six years and seven months for the appellant.