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Crowder (a pseudonym) v The King

Crowder (a pseudonym) v The King

Case [2024] VSCA 211 19 September 2024

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0059

JULIAN CROWDER (a pseudonym)[1]	Applicant
v
THE KING	Respondent

[1]In these reasons for judgment the applicant’s name and the name of another person referred to herein as ‘UB’ have been anonymised by use of pseudonyms. This is done to remove particulars likely to lead to the identification of a person against whom a sexual offence is alleged to have been committed: s 4(1A) Judicial Proceedings Reports Act 1958.

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JUDGES:	MACAULAY and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	10 September 2024
DATE OF JUDGMENT:	19 September 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 211
JUDGMENT APPEALED FROM:	CDPP v [Julian Crowder] (County Court of Victoria, Judge Mullaly, 27 February 2024)

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CRIMINAL LAW – Appeal – Sentence – Applicant charged with using carriage service to access child abuse material and possession or control of child abuse material – Total effective sentence of 26 months’ imprisonment – Plea of guilty – Applicant relied on diagnosis of post‑traumatic stress disorder as mitigating factor at plea – Whether judge erred in failing to find exceptional circumstances – Whether sentence manifestly excessive – Application for leave to appeal refused.

R v Verdins (2007) 16 VR 269; Director of Public Prosecutions (Cth) v D’Alessandro (2010) 26 VR 477; R v De Leeuw [2015] NSWCCA 183; Worboyes v The Queen [2021] VSCA 169, considered.

Crimes Act 1914 (Cth), 20(1)(b), considered.

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Counsel
Applicant:		Mr R Nathwani SC and Mr L Cameron
Respondent:		Ms K Breckweg and Ms M Brown
Solicitors
Applicant:	Doogue & George Pty Ltd
Respondent:	Mr S Bruckard, Commonwealth Solicitor for Public Prosecutions

MACAULAY JA
KAYE JA:

The applicant pleaded guilty, in the County Court, to one charge of using a carriage service to access child abuse material, contrary to s 474.22(1) of the Criminal Code (Cth), and one charge of possession or control of child abuse material obtained or accessed using a carriage service, contrary to s 474.22A(1) of the Criminal Code (Cth). Following a plea presented on his behalf, the applicant was sentenced, on 27 February 2024, as follows:

Charge	Offence	Maximum Penalty	Sentence	Cumulation/ Commencement
1	[Over four weeks in] 2022, use carriage service to access child abuse material s 474.22(1) Criminal Code (Cth)	15 years	20 months	27 February 2024
2	[In] 2022, possess child abuse material accessed using a carriage service. s 474.22A(1) Criminal Code (Cth)	15 years	20 months	27 August 2024[2]
Total Effective Sentence		26 months imprisonment
Recognisance release period		Pursuant to s20(1)(b)(ii) of the Crimes Act 1914 (Cth), (‘*the Crimes Act’*) ordered to be released after serving 12 months on entering a recognisance of $1,000 to be of good behaviour for three years, be supervised by a probation officer for two years and to undertake all programs that the probation officer reasonably directs.
Pre-sentence Detention:		Nil
6AAA declaration:		4 years 4 months imprisonment with a non-parole period of 2 years and 4 months
Other orders:		Registrable offender…

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 Crowder (a pseudonym) v The King

Details

AGLC: Crowder (a pseudonym) v The King [2024] VSCA 211
Case: [2024] VSCA 211
Decision Date: 19 September 2024

CaseChat Overview and Summary

The applicant, Crowder, challenged the sentence imposed by the Supreme Court of Victoria following his guilty plea to charges of accessing child abuse material and possession or control of such material. The sentence comprised 26 months’ imprisonment. The Court of Appeal was asked to determine whether the trial judge erred in not considering exceptional circumstances in the sentencing process, and whether the sentence was manifestly excessive. The applicant argued that the trial judge should have recognised his post-traumatic stress disorder as a mitigating factor and that the sentence was disproportionately harsh.

The court examined the principles governing the assessment of exceptional circumstances and the role of post-traumatic stress disorder in sentencing. The court noted that exceptional circumstances are not automatically established by the presence of a mental health condition, and that the trial judge had considered the applicant's condition and its impact on his offending behaviour. The court found that the sentence was within the appropriate range for the offences committed and did not constitute a manifest excess. The court concluded that the trial judge had properly exercised his discretion in determining the sentence.

The Court of Appeal found that the trial judge had not erred in his assessment of the mitigating factors and had appropriately considered the applicant's post-traumatic stress disorder. The court held that the sentence was neither manifestly excessive nor disproportionate to the offences committed. The court further found that the trial judge's consideration of the aggravating and mitigating factors demonstrated a sound understanding of the sentencing principles. Accordingly, the court dismissed the application for leave to appeal, upholding the sentence imposed by the trial judge.

No orders were made by the Court of Appeal.

Orders