Bretherton v Moore - [2006] NTSC 44

Bretherton v Moore [2006] NTSC 44
PARTIES:BRETHERTON, Louis James
v

MOORE, David

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:JA20 of 2005 (20322456)
DELIVERED:  7 JUNE 2006
HEARING DATES:  15 MAY 2006
JUDGMENT OF:  MARTIN (BR) CJ
APPEAL FROM:  Court of Summary Jurisdiction, 20322456, 10 March 2005
CATCHWORDS:

CRIMINAL LAW
Appeal – Justices Appeal – possessing child pornography – s 125B Criminal Code – ‘possession’ – conviction quashed – resentenced.
Criminal Code (NT), s 125B
R v Jones (1999) 108 A Crim R 50, referred to.
R v Brock (unreported, Supreme Court of the Northern Territory, SCC 20402654, 2 December 2004), followed.

REPRESENTATION:
Counsel:
Appellant:I Rowbottom
Respondent:  M Heffernan
Solicitors:
Appellant:Withnalls
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:         B
Judgment ID Number:  Mar0607
Number of pages:  13

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Bretherton v Moore [2006] NTSC 44

No. JA 20 of 2005 (20322456)
BETWEEN:

LOUIS JAMES BRETHERTON

Appellant

AND:

DAVID MOORE

Respondent

CORAM: MARTIN (BR) CJ
REASONS FOR JUDGMENT
(Delivered 7 June 2006)

The appellant pleaded guilty to four offences of possessing child pornography contrary to s 125B(1)(a) of the Criminal Code. The maximum penalty for each offence was two years imprisonment. The following sentences were imposed:
Count1       10 months imprisonment
Count 2      12 months imprisonment
Count 3      4 months imprisonment
Count 4      4 months imprisonment
The learned Magistrate ordered that the sentences be served concurrently and that they be suspended after the appellant had served four months upon condition that he be under the supervision of the Director of Correctional Services and obey the directions of the Director as to residence, reporting, employment, counselling and psychiatric treatment. The operational period of the suspension was two years.
The appellant filed a notice of appeal complaining that the sentence was manifestly excessive and that the Magistrate had failed to properly take into account “the mental condition of the offender in the circumstances of the commission of the offending”. The notice also complained that the Magistrate failed to properly consider the necessity for supervision during the operational period of two years.
Shortly before the hearing of the appeal, the appellant filed an amended notice of appeal adding a complaint that the Magistrate “erred in finding that the offence set out in count 1 was made out”.
The appellant was represented before the Magistrate by the same counsel who appeared on the appeal. Following the pleas of guilty the prosecutor presented facts to the Magistrate both orally and in a document tended as an exhibit headed “Agreed Facts”. The plea was conducted on the basis that the facts were agreed. The exhibit setting out the facts was as follows:
“At sometime prior to 17 October 2003, the offender obtained numerous electronic image files depicting child pornography by downloading the images from the internet to a Directory on his personal computer.
On that day, Police spoke to the offender about…

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 Bretherton v Moore

Details

AGLC: Bretherton v Moore [2006] NTSC 44
Case: [2006] NTSC 44
Decision Date: 7 JUNE 2006

CaseChat Overview and Summary

The appellant, Bretherton, appealed against his conviction for possessing child pornography under section 125B of the Criminal Code. The matter was heard in the Supreme Court of the Northern Territory. The appeal centred on the interpretation of the term 'possession' in the statute and its application to the facts of the case. Bretherton argued that the trial judge misdirected himself in relation to the elements of the offence and the application of the law to the facts.

The court was required to determine whether the trial judge's interpretation of the term 'possession' was correct and whether the evidence was sufficient to support the conviction. The court considered the definition of 'possession' as set out in section 125B of the Criminal Code and the relevant case law, including R v Jones and R v Brock. The court also examined the evidence presented at the trial to assess whether it was sufficient to prove the elements of the offence beyond reasonable doubt.

The court found that the trial judge misdirected himself in relation to the elements of the offence and that the evidence was insufficient to support the conviction. The court quashed the conviction and ordered a re-sentencing hearing. The court held that the term 'possession' in section 125B of the Criminal Code requires physical or constructive possession of the material, and that the prosecution must prove that the accused had control over the material and knew of its nature. The court found that the evidence did not establish that Bretherton had control over the material or knew of its nature.

The court quashed the conviction and ordered a re-sentencing hearing. The court held that the term 'possession' in section 125B of the Criminal Code requires physical or constructive possession of the material, and that the prosecution must prove that the accused had control over the material and knew of its nature. The court found that the evidence did not establish that Bretherton had control over the material or knew of its nature. The court emphasised the importance of ensuring that the prosecution proves all elements of the offence beyond reasonable doubt and that the trial judge correctly applies the law to the facts.

Orders