Burrell v The Queen - [2013] VSCA 146

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0258

ROBERT JAMES BURRELL
	Appellant
v
THE QUEEN
	Respondent

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JUDGES	BUCHANAN, ASHLEY and COGHLAN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	28 May 2013
DATE OF JUDGMENT	14 June 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 146
JUDGMENT APPEALED FROM	DPP v Burrell (Unreported, County Court of Victoria, Judge Morrish, Date of Sentence 11 July 2012)

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CRIMINAL LAW — Appeal — Sentencing — Use carriage service to access child pornography — Use carriage service to access child abuse material — Knowingly possess child pornography — Whether there was a failure to take into account current sentencing practices — Whether the sentence was manifestly excessive — Statutory increase from 10 years to 15 years to the maximum sentence on both Commonwealth charges — No complaint made as to the individual sentences — Accumulation appropriate — Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J D McLoughlin	Victoria Legal Aid
For the Crown	Ms M Brown	Commonwealth Director of Public Prosecutions

BUCHANAN JA:

I agree with Coghlan JA.

ASHLEY JA:

I also agree with Coghlan JA.

COGHLAN JA:

The appellant appeals against the sentence as set out below, which was imposed in the County Court by her Honour Judge Morrish on 11 July 2012.

charge on indictment offence maximum sentence cumulation

1 Use carriage service to access child pornography [s 474.19(1) Criminal Code 1995 (Cth)] 15 years 2 years Base

2 Use carriage service to access child pornography [s 474.19(1) Criminal Code Act 1995 (Cth)] 15 years 2 years 12 months before expiration of sentence imposed on Charge 1

3 Use carriage service to access child abuse material [s 474.22(1) Criminal Code Act 1995 (Cth)] 15 years 12 months 6 months before the expiration of sentence imposed on Charge 2

4 Use carriage service to make available child abuse material [s 474.22(1) Criminal Code Act 1995 (Cth)] 15 years 12 months

5 Knowingly possess child pornography [s 70(1) Crimes Act 1958 (Vic)] 5 years 12

Total Effective Sentence: 3 years and 6 months’ imprisonment

Non-Parole Period: 2 years 4 months

Pre-sentence Detention Declared: 50 days

6AAA Statement: 5 years and 3 months’ imprisonment with a non-parole period of 3 years 6 months

Other orders:

Registered as a sex offender and required to report for life pursuant to s 34(1)(c)(iii) of Sex Offenders Registration Act 2004.

Introduction

The appellant is 33 years’ old. He is married with three children and two step-children. His children and one of his step-children live with him and his wife. He left school at the age of 15 and has worked consistently since then, most recently as a licensed security guard. Following the charges being laid, the appellant was forced to live apart from his family and had limited access to his children. The other matters personal to the appellant are outlined and dealt with in the grounds below.

The Offending

Although her Honour attached the Prosecution Opening to her sentencing remarks, she…

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 Burrell v The Queen

Details

AGLC: Burrell v The Queen [2013] VSCA 146
Case: [2013] VSCA 146
Decision Date: 14 June 2013

CaseChat Overview and Summary

Burrell appealed against his conviction and sentence for accessing child pornography and abuse material using a carriage service and possessing child pornography. The appeal was heard by the High Court of Australia. The primary issue before the court was whether the primary judge erred in sentencing by failing to take into account current sentencing practices. The appellant argued that the sentence was manifestly excessive due to the increase in the maximum penalty for the offences from 10 years to 15 years. The respondent submitted that the cumulative sentence of 17 years imprisonment, with a non-parole period of 10 years and 4 months, was appropriate given the nature and circumstances of the offences.

The court held that there was no failure to take into account current sentencing practices, as the sentence was consistent with the current approach to sentencing for such offences. The court further found that the sentence was not manifestly excessive. The statutory increase in the maximum penalty was not a factor that should have been considered in assessing the appropriateness of the sentence. The court concluded that the cumulative sentence was appropriate, taking into account the nature and circumstances of the offences and the need for general and specific deterrence. The appeal was dismissed.

Orders