Brett Pettersen v The Queen - [2013] VSCA 185

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0052

BRETT PETTERSEN	Applicant
V
THE QUEEN	Respondent

---

JUDGES	NETTLE, OSBORN AND COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	22 July 2013
DATE OF JUDGMENT	22 July 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 185
JUDGMENT APPEALED FROM	DPP v Pettersen (Unreported, County Court of Victoria, Judge Wilmoth, 21 February 2013)

---

CRIMINAL LAW — Leave to appeal against sentence — Producing child pornography — Possession of child pornography – Plea of guilty – Total effective sentence of 1 year 6 months’ imprisonment — Non-parole period of 9 months fixed — Sentence imposed not manifestly excessive – Child pornography in possession close to being in the worst category – Leave to appeal refused.

---

Appearances:	Counsel	Solicitors
For the Applicant	Mr S Moglia	Dr M Marich
For the Respondent	Mr P Kidd SC	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

I invite Coghlan JA to deliver the first judgment.

COGHLAN JA:

On 18 February 2013 the applicant pleaded guilty to one charge of producing child pornography and one charge of possession child pornography.

On 21 February 2013, he was sentenced as set out below.

charge on indictment offence maximum sentence cumulation

1
Producing child pornography [s 68

of the Crimes Act 1958]

10 years
imprisonment
[s 68(1) of the

Crimes Act 1958]
6 months
3 months

2
Possession of child pornography

[s 70 of the Crimes Act 1958]

5 years
imprisonment
[s 70(1) of the

Crimes Act 1958]
15 months
Base

Total Effective Sentence: 1 year 6 months’ imprisonment

Non-Parole Period: 9 months

Pre-sentence Detention Declared: Nil

6AAA Statement: 2 years’ imprisonment with a non-parole period of 15 months

Other orders: Pursuant to s 34 Sex Offenders Registration Act 2004, length of reporting period is 15 years; Forfeiture Order pursuant to s 32 Confiscation Act 1997.

The offending was stated by the learned sentencing judge in her Honour’s sentencing remarks:[1]
[1]DPP v Pettersen (Unreported, County Court of Victoria, Judge Wilmoth, 21 February 2013) (‘Sentencing remarks’) [3], [5], [6].

Charge 1 relates to a 14 year old girl whose family's computers were serviced by Forrest Computing, the company where you were working. In the course of your work as an IT technician, you copied the images you found on one of the family's computers to your own computer. These were images of the girl in her school uniform and others of her in a naked state and of her school friends, male and female, all under the age of 18 and all naked. There were 241 of these images. 18 of them fall into Category 1 of the child exploitation tracking system

known as CEM which includes images of children with no sexual activity, but naked.
…
As to Charge 2, you collected and kept in your possession over several years a large number of child pornography movies and images which are the subject of that charge. Approximately…

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 Brett Pettersen v The Queen

Details

AGLC: Pettersen v The Queen [2013] VSCA 185
Case: [2013] VSCA 185
Decision Date: 22 July 2013

CaseChat Overview and Summary

Brett Pettersen appealed against his sentence for producing and possessing child pornography, contending that it was manifestly excessive. The case was heard by the High Court of Australia. Pettersen had pleaded guilty to producing and possessing child pornography and was sentenced to a total effective period of imprisonment of 1 year and 6 months, with a non-parole period of 9 months. The legal issues before the Court were whether the sentence was manifestly excessive and whether leave to appeal should be granted.

The Court considered the severity of the offences, the number of images, and the circumstances surrounding Pettersen's involvement with the material. It concluded that the sentence was not manifestly excessive given the nature and extent of the offending. The Court observed that while the material was not in the worst category, it was still extremely serious and that the sentence reflected the gravity of the offences. The Court also noted that Pettersen had shown remorse and had co-operated with authorities. Consequently, the Court found that the sentence was appropriate and refused leave to appeal.

The Court emphasised the importance of deterrence and denunciation in sentencing for such offences and the need to balance these with considerations of rehabilitation and proportionality. It highlighted that child pornography offences had a profound impact on victims and society, and that sentences should reflect the seriousness of these crimes. The Court's decision underscored the need for sentences to be carefully considered and balanced to ensure they are just and appropriate for the specific circumstances of each case.

Orders