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Cluett v The Queen

Cluett v The Queen

Case [2019] WASCA 111 5 August 2019

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   CLUETT -v- THE QUEEN [2019] WASCA 111
CORAM:   BUSS P
MAZZA JA
MITCHELL JA

HEARD:   15 JULY 2019
DELIVERED          :   17 JULY 2019
PUBLISHED           :   5 AUGUST 2019
FILE NO/S:   CACR 86 of 2019
BETWEEN:   SIMON JOHN CLUETT
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   GOETZE DCJ
File Number             :   IND 631 of 2018

Catchwords:

Criminal law - Sentencing - Possession of child exploitation material - Using a carriage service to access child pornography material - Where 61-year-old offender of prior good record pleaded guilty at first reasonable opportunity - Where limited number of images accessed on open website - Offender with cognitive impairment - Autism spectrum disorder - Where offending resulted from irrational views associated with cognitive impairment and was not sexually motivated - Whether a sentence of imprisonment to be served immediately is unreasonable or plainly unjust

Legislation:

Crimes Act 1914 (Cth), s 16A, s 17A, s 19AC, s 20
Criminal Code (Cth), s 474.19
Criminal Code (WA), s 220
Sentencing Act 1995 (WA), s 6, s 39

Result:

Leave to appeal granted
Appeal allowed
Appellant resentenced

Category: D

Representation:

Counsel:

Appellant	:	Ms N R Sinton
Respondent	:	Ms S J Oliver

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	Director of Public Prosecutions (Cth)

Case(s) referred to in decision(s):

Director of Public Prosecutions (Cth) v D'Alessandro [2010] VSCA 60; (2010) 26 VR 477
Director of Public Prosecutions (Cth) v Garside [2016] VSCA 74; (2016) 50 VR 800
Dragon v The State of Western Australia [2019] WASCA 84
Gok v The Queen [2010] WASCA 185
Kenworthy v The Queen [No 2] [2016] WASCA 207
McIntyre v The State of Western Australia [2016] WASCA 150
Minehan v The Queen [2010] NSWCCA 140; (2010) 201 A Crim R 243
Naysmith v The Queen [2013] WASCA 32
Paroline v United States 134 S Ct 1710 (2014)
R v De Leeuw [2015] NSWCCA 183
R v Edwards [2019] QCA 15
R v Freedman [2017] NSWCCA 201; (2017) 268 A Crim R 453
R v Howe [2017] QCA 7
R v Hutchinson [2018] NSWCCA 152
R v Lee [2013] WASCA 216
R v O'Connor [2012] SASCFC 15
R v Turvey [2017] SASCFC 28; (2018) 127 SASR 425
Tapper v The State of Western Australia [2016] WASCA 140
The State of Western Australia v Malone [2015] WASCA 188

REASONS OF THE COURT:

Introduction

The appellant was convicted on his pleas of guilty of the following three offences, for which he received a total effective sentence of 9 months' immediate imprisonment on 17 June 2019:

Count

Offence

Maximum term of imprisonment

Term of imprisonment imposed

Cumulative/concurrent

1

Possession of child exploitation material: s 220 of the Criminal Code (WA)

7 years

6 months

Conc

2

Using a carriage service to access child pornography material: s 474.19(1)(a)(i) of the Criminal Code (Cth)

15…

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 Cluett v The Queen

Details

AGLC: Cluett v The Queen [2019] WASCA 111
Case: [2019] WASCA 111
Decision Date: 5 AUGUST 2019

CaseChat Overview and Summary

The case of Cluett v The Queen involved a 61-year-old man who was charged with possession of child exploitation material and using a carriage service to access child pornography material. The offender, who had no prior criminal record, accessed a limited number of images on an open website. The man had a cognitive impairment, specifically an autism spectrum disorder, which contributed to his irrational views that led to his offending. The offender pleaded guilty at the first reasonable opportunity. The court was required to determine whether a sentence of imprisonment to be served immediately was unreasonable or plainly unjust given the offender's circumstances.

The central legal issue before the court was whether the offender's sentence should be reconsidered in light of his cognitive impairment and the non-sexual nature of his offending. The court considered the principles of sentencing in Australian criminal law, which include the need for punishment, deterrence, and rehabilitation, as well as the circumstances of the offender. The court also needed to balance the gravity of the offence with the offender's personal circumstances, including his cognitive impairment and lack of prior criminal history. The court determined that the offender's cognitive impairment played a significant role in his offending, which was not sexually motivated but rather the result of irrational views.

The court concluded that a sentence of imprisonment to be served immediately would be unreasonable and plainly unjust given the offender's circumstances. The court found that the offender's cognitive impairment and lack of prior criminal history were significant mitigating factors. The court considered that the offender's offending was not sexually motivated but rather the result of his cognitive impairment. The court also noted the offender's early guilty plea and his remorse. As a result, the court determined that a non-custodial sentence would be more appropriate and ordered the offender to complete a good behaviour bond with supervision and counselling.

Orders