Buddle v The Queen - [2011] TASCCA 11

[2011] TASCCA 11

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Buddle v R [2011] TASCCA 11

PARTIES:  BUDDLE, Jeremy Philip
  v
  THE QUEEN

FILE NO/S:  CCA 178/2010
DELIVERED ON:  17 August 2011
DELIVERED AT:  Hobart
HEARING DATE:  9 August 2011
JUDGMENT OF:  Crawford CJ, Blow and Porter JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Accessing and possessing child pornography material – Whether sentences manifestly excessive.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
           Appellant:  K Cuthbertson
           Respondent:  I M Arendt
Solicitors:
           Appellant:  Mackie Crompton
           Respondent:  Director of Public Prosecutions (Cth)

Judgment Number: [2011 TASCCA 11
Number of paragraphs: 19

Serial No 11/2011
File No CCA 178/2010

JEREMY PHILIP BUDDLE v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

CRAWFORD CJ
BLOW J
PORTER J
17 August 2011

Orders of the Court

Appeal allowed.

Sentence on count 1 of 18 months' imprisonment, and order permitting release on recognizance after serving 12 months of that sentence, quashed.

On count 1, appellant sentenced to nine months' imprisonment with effect from 4 March 2011, concurrently with the sentence of 12 months' imprisonment on count 2.

The appellant is to be released after serving six months of that sentence upon giving security without sureties by recognizance in the sum of $1,000 that he will be of good behaviour for two years after his release from prison.

The appellant is to be eligible for parole after serving six months of the sentence of 12 months' imprisonment imposed on 4 March 2011 on count 2.

Serial No 11/2011
File No CCA 178/2010

JEREMY PHILIP BUDDLE v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

CRAWFORD CJ
17 August 2011

I agree with the reasons for judgment of Blow J and with the proposed orders.
File No CCA 178/2010

JEREMY PHILIP BUDDLE v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW J
17 August 2011

The appellant is appealing against sentencing orders that were made by Tennent J after he pleaded guilty to two charges relating to child pornography.

Count 1 was a charge of using a carriage service (the internet) to access child pornography material, contrary to the Criminal Code (Cth), s474.19, between 15 November 2005 and 25 November 2009. On that charge the appellant was sentenced to 18 months' imprisonment. The learned sentencing judge made a recognizance release order under the Crimes Act 1914 (Cth), s20(1)(b), permitting him to be released after serving 12 months of that sentence.

Count 2 on the indictment was a charge of possessing child exploitation material, contrary to the Criminal Code (Tas), s130C, on 25 November 2009. That was the date of a search of his home by officers of the Australian Federal Police ("AFP"). On that charge the appellant was sentenced to 12 months' imprisonment, concurrently with the sentence on count 1. No order was made permitting parole.

The grounds of appeal

The appellant contends that his…

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 Buddle v The Queen

Details

AGLC: Buddle v The Queen [2011] TASCCA 11
Case: [2011] TASCCA 11
Decision Date: 17 August 2011

CaseChat Overview and Summary

The appellant, Buddle, appealed against his sentence to the Supreme Court of Tasmania. The dispute concerned the severity of the sentences imposed upon him for offences relating to accessing and possessing child pornography material.

The primary legal issue before the Court was whether the sentences imposed were manifestly excessive, thereby justifying interference on appeal.

The Court allowed the appeal, finding the original sentences to be excessive. It quashed the sentence of 18 months' imprisonment on count 1, which had allowed for release on recognizance after 12 months. Instead, the Court resentenced the appellant on count 1 to nine months' imprisonment, to be served concurrently with the 12-month sentence on count 2. The appellant was to be released after serving six months of the sentence on count 1, subject to entering into a recognizance of $1,000 for good behaviour for two years. The Court also confirmed eligibility for parole after serving six months of the sentence on count 2.

Orders

Orders of the court

1. Appeal allowed.

2. Sentence on count 1 of 18 months' imprisonment, and order permitting release on recognizance after serving 12 months of that sentence, quashed.

3. On count 1, appellant sentenced to nine months' imprisonment with effect from 4 March 2011, concurrently with the sentence of 12 months' imprisonment on count 2.

4. The appellant is to be released after serving six months of that sentence upon giving security without sureties by recognizance in the sum of $1,000 that he will be of good behaviour for two years after his release from prison.

5. The appellant is to be eligible for parole after serving six months of the sentence of 12 months' imprisonment imposed on 4 March 2011 on count 2.

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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