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 appealCatchwords: 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 53Category: Principal judgment Parties: Jason Burton (Applicant)
Crown (Respondent)Representation: Counsel:
Solicitors:
S Pararajasingham (Applicant)
S Callan (Respondent)
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.
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WALTON J: I agree with the orders proposed by Harrison J and with his Honour’s reasons for judgment.
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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:…
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- AGLC
- Burton v The Queen [2020] NSWCCA 127
- Case
- [2020] NSWCCA 127
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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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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