DPP (Cth) v D’Alessandro (Unreported, County Court of Victoria, Judge Duggan, 11 March 2009)
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CRIMINAL LAW – Director’s appeal – Illegal use of an electronic carriage service in breach of the Criminal Code (Cth) – Accessing, possessing and transmitting images of child pornography and child abuse – Offender sentenced to a total effective sentence of two years’ imprisonment – Offender granted immediate release upon his entering into a recognisance release order in the sum of $100 requiring him to be of good behaviour for a period of 3 years – Offender registered as a sex offender – Whether sentences manifestly inadequate – Whether sufficient weight given to nature, circumstances and gravity of the offences – General deterrence – No prior convictions – Guilty plea – Prospects of rehabilitation – Likelihood of re-offending – Appeal allowed – Offender re-sentenced to a total effective sentence of three years’ imprisonment – Offender to serve two years imprisonment before being eligible for release pursuant to section 20(1)(b) of the Crimes Act 1914 (Cth) upon giving security by recognizance.
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Appearances:
Counsel
Solicitors
For the Director of Public Prosecutions (Cth)
Mr D Gurvich
Solicitor for Director of Public Prosecutions (Cth)
For the Respondent
Mr O P Holdenson QC with Mr D Dann
Rainer Martini & Associates
REDLICH JA:
I have had the benefit of reading in draft the reasons of Harper JA and agree that that the appeal should be allowed. Notwithstanding the important considerations that the respondent has been at his liberty since the original sentences were pronounced and that he is standing for sentence a second time and to that extent is doubly jeopardised, I agree, substantially for the reasons which Harper JA has given, that an immediate custodial sentence must be imposed. I would however have imposed lesser sentences on the individual counts, a lower total effective sentence and a shorter non-parole period than he proposes, but as mine is a minority view in this regard, no purpose would be served by my saying anything further.
HARPER JA:
The respondent’s offending and the sentences imposed
The respondent is a young man approaching 25, having been born on 15 July 1985. On 29 January 2009, he pleaded guilty in the County Court to six counts, each of which alleged the illegal use of an electronic carriage service in breach of the Commonwealth Criminal Code. The illegality said to be involved was that the service was used to carry images that displayed either pornographic behaviour with children (three counts) or child abuse (the other three counts). Counts 1 and 5 alleged such use in order to access images of child pornography (count 1) or child abuse (count 5); counts…
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.
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Details
AGLC
DPP (Cth) v D'Alessandro [2010] VSCA 60
Case
[2010] VSCA 60
Decision Date
CaseChat Overview and Summary
The Director of Public Prosecutions for the Commonwealth brought an appeal against the sentence of D'Alessandro, who was found guilty of illegally using an electronic carriage service in breach of the Criminal Code, by accessing, possessing, and transmitting images of child pornography and child abuse. The original sentence imposed by the Federal Circuit Court of Australia was a total effective sentence of two years’ imprisonment, with immediate release upon D'Alessandro entering into a recognisance release order in the sum of $100, requiring him to be of good behaviour for a period of three years. D'Alessandro was also registered as a sex offender. The appeal centred on whether the sentences were manifestly inadequate and whether sufficient weight was given to the nature, circumstances, and gravity of the offences.
The legal issues before the court were whether the original sentence was manifestly inadequate and whether the court had given sufficient consideration to the principles of general deterrence, the nature and gravity of the offences, D'Alessandro's prospects of rehabilitation, and the likelihood of re-offending. The Director argued that the original sentence was too lenient, and did not adequately reflect the seriousness of the crimes committed by D'Alessandro. The court was required to consider whether the sentence imposed was appropriate in all the circumstances, and whether it was necessary to impose a more severe penalty to ensure general deterrence and protect the community.
The court allowed the appeal and re-sentenced D'Alessandro to a total effective sentence of three years’ imprisonment, with two years to be served before being eligible for release under section 20(1)(b) of the Crimes Act 1914 (Cth). The court found that the original sentence was manifestly inadequate, and that the seriousness of the offences warranted a more severe penalty. The court also found that the original sentence did not give sufficient weight to the need for general deterrence and the protection of the community. The court considered D'Alessandro's prospects of rehabilitation and the likelihood of re-offending, but ultimately determined that the gravity of the offences required a more significant punishment.
The final orders of the court were that D'Alessandro's sentence was to be re-imposed as a total effective sentence of three years’ imprisonment, with two years to be served before being eligible for release upon giving security by recognizance. D'Alessandro was also to remain registered as a sex offender.