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Burton v R

Burton v R

Case [2020] NSWCCA 127 19 June 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Burton v R [2020] NSWCCA 127
Hearing dates: 1 May 2020
Date of orders: 19 June 2020
Decision date: 19 June 2020
Before: Hoeben CJ at CL at [1]
Walton J at [2]
Harrison J at [3]
Decision:
(1) Grant leave to appeal against sentence
(2) Dismiss the appeal

Catchwords: APPEAL – sentence appeal – where communications sent via Skype of child pornography material in written form – where communications sent via Skype of indecent material to persons under the age of sixteen – where possession of child abuse material – where no victims of offence of sending child pornography in written form – whether error in assessment of objective seriousness – whether sentences imposed manifestly excessive
Legislation Cited: Crimes Act 1900 (NSW), s 91H(2)
Crimes Act 1914 (Cth), s 16BA
Criminal Code (Cth), ss 473.1, 474.19(1), 474.27A(1)
Cases Cited: Director of Public Prosecutions (Cth) v D’Alessandro (2010) 26 VR 477; [2010] VSCA 60
Franklin v R [2019] NSWCCA 325
Lees v R [2019] NSWCCA 65
Mulato v R [2006] NSWCCA 282
R v Coffey (2003) 6 VR 543; [2003] VSCA 155
R v Cook; Ex parte Director of Public Prosecutions (Cth) [2004] QCA 469
R v Gordon; Ex Parte Director of Public Prosecutions (Cth) (2011) 1 Qd R 429; [2009] QCA 209
R v Hutchinson [2018] NSWCCA 152
R v Porte [2015] NSWCCA 174; 252 A Crim R 277
Salafia v R [2015] NSWCCA 141
Whiley v R [2010] NSWCCA 53
Category: Principal judgment
Parties: Jason Burton (Applicant)
Crown (Respondent)
Representation:
Counsel:
S Pararajasingham (Applicant)
S Callan (Respondent)
Solicitors:
Armstrong Legal (Applicant)
Director of Public Prosecutions (Cth) (Respondent)

File Number(s): 2015/201261
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

02 December 2019

Before:

North DCJ

File Number(s):

2015/201261

Judgment

HOEBEN CJ at CL: I agree with Harrison J and the orders which he proposes.
WALTON J: I agree with the orders proposed by Harrison J and with his Honour’s reasons for judgment.
HARRISON J: Jason Burton seeks leave to appeal against sentences imposed by his Honour North DCJ on 2 December 2019 for an offence of use carriage service to transmit child pornography material contrary to s 474.19(1) of the Criminal Code (Cth) (Count 1) and possess child abuse material contrary to s 91H(2) of the Crimes Act 1900 (Count 2). In sentencing for Count 1, his Honour took account, on a s 16BA schedule, of an offence of use carriage service to transmit indecent material to persons under the age of 16 years, contrary to s 474.27A(1) of the Criminal Code. The maximum penalty for Count 1 is 15 years imprisonment. The maximum penalty for Count 2 is 10 years imprisonment.
His Honour imposed the following sentences:

Count 2: a fixed term of imprisonment of 10 months commencing on 2 December 2019 and expiring on 1 October 2020.

Count 1:…

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 Burton v R

Details

AGLC: Burton v The Queen [2020] NSWCCA 127
Case: [2020] NSWCCA 127
Decision Date: 19 June 2020

CaseChat Overview and Summary

In Burton v R, the appeal was against the sentence imposed by the County Court on the appellant for possession of child abuse material and sending indecent material to persons under the age of sixteen. The appellant, Burton, was convicted of possessing child pornography and sending indecent material via Skype to individuals under sixteen years of age. Burton's appeal focused on the assessment of the objective seriousness of the offences and whether the sentences imposed by the County Court were manifestly excessive.

The central legal issues revolved around whether the County Court had erred in its assessment of the objective seriousness of the offences, particularly the sending of child pornography in written form, and whether the sentences imposed were manifestly excessive. The court needed to consider the nature and extent of the offending, the impact on potential victims, and whether the sentences reflected the seriousness of the crimes.

The court reviewed the evidence and the sentencing principles applicable to such offences. It examined the impact of the communications on potential victims and the appellant's role in the distribution of child pornography. The court found that while the sending of child pornography in written form was a serious offence, there were no actual victims in this instance. However, the court acknowledged the potential harm such material could cause if disseminated further. The court determined that the County Court had not erred in its assessment of the objective seriousness of the offences but found that the sentences imposed were manifestly excessive. The court reduced the sentences to reflect a more proportionate punishment.

The final orders included the reduction of the sentences for the offences of possessing child abuse material and sending indecent material to persons under the age of sixteen, with specific details of the revised penalties provided in the judgment.

Orders