Andrew John Farrell v The Queen - [2010] VSCA 251

SUPREME COURT OF VICTORIA

COURT OF APPEAL

ANDREW JOHN FARRELL	S APCR 2010 0139
ANDREW JOHN FARRELL	Applicant
v
THE QUEEN	Respondent

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JUDGES:	NETTLE and HARPER JJA and T FORREST AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 September 2010
DATE OF JUDGMENT:	20 September 2010
DATE OF ORDERS:	22 September 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 251
JUDGMENT APPEALED FROM:	DPP v Farrell (Unreported, County Court of Victoria, Judge Pullen, 16 December 2009)

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CRIMINAL LAW – Sentence – Using a carriage service to access child pornography, using a carriage service to make available child pornography and possession of child pornography – Intention that offender be sentenced to a total effective sentence of 3 years’ imprisonment with 10 months to be served before being released on a recognisance of $800 to be of good behaviour for 20 months – Combination of Commonwealth and State offences – Structure of sentence imposed not reflecting the sentencing judge’s intention – ‘Slip rule’ – Sentence quashed and offender re-sentenced – R v Saxon [1998] 1 VR 503 considered – Crimes Act 1958 (Vic), s 568(4) – Sentencing Act 1991 (Vic), s 104A – Crimes Act 1914 (Cth), s 20(1)(b).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Gillespie-Jones	Paul Vale Criminal Law
For the Crown	Mr D D Gurvich	Solicitor for Director of Public Prosecutions (Cth)

NETTLE JA:

I invite Harper JA to deliver the first judgment.

HARPER JA:

Following a plea of guilty, the applicant was convicted of two offences against the Commonwealth Criminal Code 1995 and of one offence against the Victorian Crimes Act1958. Each of the three counts involved child pornography.

The transcript of the sentencing remarks of the sentencing judge and of the two hearings which followed leave no room for doubt. Her Honour intended that the applicant be sentenced to a total effective sentence of three years' imprisonment, but that after ten months actual incarceration he be released on a recognisance pursuant to s 20(1)(b) of the Commonwealth Crimes Act1914.

The judge was aware of the difficulties in framing appropriate orders for punishment where the applicable law has two jurisdictional sources. In this case, the relevant Commonwealth legislation was to be found in the Criminal Code and the Crimes Act1914, which the applicable State law was to be found in the Crimes Act1958 and the Sentencing Act1991. Before pronouncing sentence, her Honour therefore sought and obtained the assistance of counsel for the Director of Public Prosecutions (Commonwealth) and counsel for the applicant. Thus armed, the judge sentenced the applicant to two years' imprisonment on Count 1 (using a carriage service to access child pornography), two years' imprisonment on Count 2 (using a carriage service to make available child pornography), and 12 months' imprisonment on Count 3 (possession of child pornography). She directed, pursuant to s 15 of the Sentencing Act, that the sentence on Count 3 was to commence on that day, 16 December 2009. She…

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.

Continue reading Andrew John Farrell v The Queen

Details

AGLC: Andrew John Farrell v The Queen [2010] VSCA 251
Case: [2010] VSCA 251
Decision Date: 20 September 2010

CaseChat Overview and Summary

In the case of Andrew John Farrell v The Queen, the offender was convicted of multiple offences involving the use of a carriage service to access and make available child pornography, as well as possession of child pornography. The matter was heard in the Supreme Court of Victoria. The central issue for the court was whether the structure of the sentence imposed by the sentencing judge accurately reflected the intended total effective sentence.

The court had to determine if the sentence structure was correctly applied, particularly in light of the ‘slip rule’ where discrepancies between the intended and actual sentence can lead to the sentence being quashed and the offender re-sentenced. The court considered the relevant statutory provisions including sections 568(4) of the Crimes Act 1958 (Vic), 104A of the Sentencing Act 1991 (Vic), and 20(1)(b) of the Crimes Act 1914 (Cth). The court also referenced the case of R v Saxon [1998] 1 VR 503, which provides guidance on the application of the slip rule.

After examining the sentencing judge's remarks and the imposed sentence, the court found that the structure did not align with the intended total effective sentence. Consequently, the court quashed the original sentence and re-sentenced the offender. The re-sentencing ensured that the total effective sentence of 3 years’ imprisonment with 10 months to be served before release on a recognisance of $800 and a requirement to be of good behaviour for 20 months was correctly structured and implemented.

Orders