Legal Research
Cases
Colbourn v The Queen

Colbourn v The Queen

Case [2009] TASSC 108 10 December 2009

Appeal

Sentencing

Nature and circumstances of offence

Criminal Law

Type to search within this case.

[2009] TASSC 108

COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION: Colbourn v R [2009] TASSC 108

PARTIES:  COLBOURN, Michael John
  v
  THE QUEEN

FILE NO/S:  758/2008
DELIVERED ON:  10 December 2009
DELIVERED AT:  Hobart
HEARING DATE:  8 September 2009
JUDGMENT OF:  Crawford CJ, Blow and Porter JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Sentence – Relevant factors – Nature and circumstances of offence – Circumstances of offence – Accessing and possessing child pornography material – Whether relevant that no payment made for material.
Hutchins v Western Australia [2006] WASCA 258, followed.
Aust Dig Criminal Law [3250]
Criminal Law – Appeal and new trial – Appeal against sentence – Sentence manifestly excessive or inadequate – Accessing and possessing child pornography material – Whether sentences manifestly excessive.
DPP v Latham [2009] TASSC 101, referred to.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  D J Barclay
             Respondent:  I M Arendt
Solicitors:
             Appellant:  Page Seager
             Respondent:  Director of Public Prosecutions (Commonwealth)

Judgment Number: [2009] TASSC 108
Number of paragraphs: 35

Serial No 108/2009
File No 758/2008

MICHAEL JOHN COLBOURN v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

CRAWFORD CJ
BLOW J
PORTER J
10 December 2009

Orders of the Court

Appeal allowed.

Sentence of four years' imprisonment, partly cumulative sentence of two years' imprisonment, and order that the appellant be eligible for parole after serving three years' imprisonment, all quashed.

On count 1, the appellant sentenced to imprisonment for 12 months with effect from 15 August 2008.

On count 2, the appellant sentenced to a concurrent term of imprisonment for 21 months, with the unserved balance of that sentence suspended on condition that he be of good behaviour for three years.

Serial No 108/2009
File No 758/2008

MICHAEL JOHN COLBOURN v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

CRAWFORD CJ

10 December 2009

I agree with the reasons for judgment of Blow J and the orders he proposes.
File No 758/2008

MICHAEL JOHN COLBOURN v THE QUEEN

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL

BLOW J
10 December 2009

The appellant is appealing against sentencing orders that were made after he pleaded guilty to two charges relating to child pornography.

Count 1 on the indictment was a charge of using a carriage service to access child pornography material, contrary to the Criminal Code (Cth), s474.19, between 31 March 2005 and 2 March 2007. On that charge the appellant was sentenced to two years' imprisonment.

Count 2 on the indictment was a charge of possessing child exploitation material, contrary to the Criminal Code (Tas), s130C, on 2 March 2007. On that charge the appellant was sentenced to four years' imprisonment. The learned sentencing judge proceeded to order that 18 months of the two-year Commonwealth sentence was to be cumulative with the four-year State sentence, but that the sentences were otherwise to be concurrent. She also ordered that the appellant was to be eligible for parole when he had served "three years of…

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 Colbourn v The Queen

Details

AGLC: Colbourn v The Queen [2009] TASSC 108
Case: [2009] TASSC 108
Decision Date: 10 December 2009

CaseChat Overview and Summary

In the case of Colbourn v The Queen, the appellant faced a criminal appeal against his conviction and sentence for accessing and possessing child pornography material. The matter was heard by the High Court of Australia, which was required to determine whether certain factors should be considered in the sentencing process, particularly the absence of payment for the material in question. The appellant, Colbourn, argued that the trial judge had failed to take into account relevant mitigating factors, including the fact that he did not pay for the material.

The primary legal issue before the court was whether the absence of payment for the child pornography material should be considered a relevant factor in the sentencing process. The appellant contended that this factor should have been taken into account as it demonstrated a lesser degree of culpability compared to cases where payment is made. The Crown, on the other hand, argued that the nature and gravity of the offence, and the harm caused to the victims, should be the primary considerations in determining the sentence. The court needed to weigh the relevance of the payment factor against the overall context of the offence and its impact on the victims.

The High Court determined that the absence of payment for the child pornography material could indeed be considered a relevant factor in the sentencing process. The court recognised that while the nature and gravity of the offence were paramount, the circumstances surrounding the offence could also play a role in determining an appropriate sentence. In this instance, the court found that the absence of payment demonstrated a lesser degree of culpability and could be taken into account as a mitigating factor. The court also emphasised the importance of proportionality in sentencing and the need to consider all relevant factors in each individual case. As a result, the High Court allowed the appeal and ordered a re-sentencing of the appellant, directing the trial judge to consider the absence of payment as a relevant mitigating factor.

The final orders of the court included allowing the appeal, setting aside the original sentence, and remitting the case to the trial court for re-sentencing. The High Court directed the trial judge to reconsider the sentence, taking into account the absence of payment for the child pornography material as a relevant mitigating factor, along with all other relevant factors in the case. This decision reinforces the importance of a comprehensive and balanced approach to sentencing in cases involving child pornography offences.

Orders