Bretherton v Moore

Case [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)

  1. 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 

  2. 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.

  3. 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.

  4. 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”. 

  5. 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…

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Bretherton v Moore [2006] NTSC 44
Case
[2006] NTSC 44
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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