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Burbridge v R

Burbridge v R

Case [2016] NSWCCA 128 1 July 2016

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Burbridge v R [2016] NSWCCA 128
Hearing dates: 6 November 2015
Date of orders: 01 July 2016
Decision date: 01 July 2016
Before: Macfarlan JA at [1];
Rothman J at [5];
Bellew J at [50]
Decision:
(1) Leave to appeal granted;
(2) Appeal dismissed.
Catchwords: CRIMINAL LAW – appeal against sentence – child pornography offences – manifest excess – totality – interaction of Commonwealth and State sentencing regimes – no error identifiable or manifest – appeal dismissed.
Legislation Cited: Crime (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)
Cases Cited: AB v The Queen [1999] HCA 46; (1999) 148 CLR 111
Assafiri v R [2007] NSWCCA 159
Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Fitzgerald v R [2015] NSWCCA 266
Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Payda v R [2013] NSWCCA 109
R v De Leeuw [2015] NSWCCA 183
R v Linardon [2014] NSWCCA 247
R v Martin [2014] NSWCCA 283
R v Porte [2015] NSWCCA 174
Wong and Leung v The Queen [2001] HCA 64; (2001) 207 CLR 584
Category: Principal judgment
Parties: Tristan David Burbridge (Applicant)
Regina (Respondent)
Representation:
Counsel:
A Evers (Applicant)
P McGuire SC (Respondent)
Solicitors:
John R De Mattia & Co (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2013/149722 & 2014/53137
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

27 August 2014

Before:

Hanley DCJ

File Number(s):

2013/149722 & 2014/53137

Judgment

MACFARLAN JA: I agree with the orders proposed by Rothman J and with his Honour’s reasons. I add the following observations.
I emphasise the following as particularly relevant to the correctness of his Honour’s conclusion, with which I agree, that the sentences imposed upon the applicant in this case are not manifestly excessive:

In addition to receiving some 129 emails attaching 360 files containing child pornography material, the applicant sent some 41 emails attaching 213 files containing such material. Further he admitted to officers executing a search warrant at the premises at which he resided that he had forwarded child pornographic material to other people via email over 100 times.

Although the applicant received the benefit of a favourable finding by the sentencing judge that there was no evidence before him that the applicant “acted with others, or was involved in any collaborative network, of like-minded persons”, it is clear from the foregoing that the applicant was involved to a significant extent in disseminating child pornography materials to others. He was thus not a passive acquisitor of material but was actively involved in its distribution.

The applicant was a registered user of a website…

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 Burbridge v R

Details

AGLC: Burbridge v R [2016] NSWCCA 128
Case: [2016] NSWCCA 128
Decision Date: 01 July 2016

CaseChat Overview and Summary

Burbridge was convicted on several charges relating to child pornography. The appeal was against the sentence imposed by the Supreme Court of New South Wales. The respondent, the Crown, submitted that the appeal should be dismissed as the sentence was neither manifestly excessive nor otherwise unlawful. The appellant argued that the sentence was manifestly excessive and that the court failed to properly consider the totality principle and the interaction between the Commonwealth and State sentencing regimes.

The court examined whether the sentence imposed was manifestly excessive or otherwise unlawful. It considered the totality principle, which requires that the totality of the sentence should not be disproportionate to the aggregate seriousness of the offending behaviour. The court also examined the interaction between the Commonwealth and State sentencing regimes, ensuring that the sentence complied with relevant legislative provisions. The court found that no error identifiable or manifest had occurred in the imposition of the sentence, and the appeal was dismissed.

The court held that the sentence was not manifestly excessive and that the trial judge had properly considered the relevant principles and statutory provisions in imposing the sentence. The totality principle was correctly applied, and the interaction between the Commonwealth and State sentencing regimes was appropriately considered. The appeal was dismissed, and the original sentence was upheld.

No further orders were made by the court. The original sentence imposed by the Supreme Court of New South Wales remained in place.

Orders