DPP (Cth) v Garside (Unreported, County Court of Victoria, Judge McInerney, 23 September 2015)
---
CRIMINAL LAW – Joint State/Commonwealth Director’s appeal against sentence – One charge of use of carriage service to access child pornography – One charge of knowingly possess child pornography – Total effective sentence of 4 years Community Corrections Order with 300 hours of community work and $5,000 fine – Whether imposition of CCO manifestly inadequate – Seriousness of accessing and possessing child pornography – Immediate term of imprisonment ordinarily expected for offending of this nature – Importance of general deterrence in child pornography offending – DPP (Cth) v Zarb [2014] VSCA 347, DPP v Smith [2010] VSCA 215; DPP (Cth) v D’Alessandro (2010) 26 VR 477, applied – DPP (Cth) v Guest [2014] VSCA 29; R v De Leeuw [2015] NSWCCA 183; R v Porte [2015] NSWCCA 174, discussed.
CRIMINAL LAW – Accessing child pornography – Classification of images and videos according to ANVIL scale – Lower classification of images and videos does not reduce objective gravity of offending – Category 1 material covers wide range of activity – Categorisation of material to be considered within context of offending as a whole in order to determine objective gravity – DPP (Cth) v Zarb [2014] VSCA 347; Porte v The Queen [2015] NSWCCA 174; Director of Public Prosecutions (Cth) v Watson [2016] VSCA 73, discussed.
CRIMINAL LAW – Director’s appeal against sentence – Residual discretion not to intervene – CMB v Attorney-General (NSW) (2015) 89 ALJR 407 (‘CMB’); DPP v Karazisis (2010) 31 VR 634; DPP v Zhuang [2015] VSCA 96 [49], applied – Compliance with CCO for over 7 months – No public interest in removing respondent from civil society and imposing term of imprisonment – Good prospects of rehabilitation – Residual discretion not exercised adversely to respondent – Appeal dismissed.
---
APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr R J Bromwich SC Ms K Brekweg
Mr M Pedley, Solicitor for Public Prosecutions (Cth)
For the Respondent
Ms C M Randazzo SC
HWMK Lawyers
REDLICH JA
BEACH JA:
Overview
This is a joint appeal against sentence brought by the Commonwealth Director of Public Prosecutions and the Victorian Director of Public Prosecutions (‘the Directors’), in relation to the sentence imposed on the respondent in respect of one…
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 DPP (Cth) v Garside
Sign in free to access the full text
Details
AGLC
DPP (Cth) v Garside [2016] VSCA 74
Case
[2016] VSCA 74
Decision Date
CaseChat Overview and Summary
The Commonwealth Director of Public Prosecutions sought leave to appeal against the sentence imposed on the respondent, Garside, following his conviction for using a carriage service to access child pornography and for possessing child pornography. The case was heard in the Court of Appeal of the Supreme Court of Victoria. The appeal concerned whether the total effective sentence of 4 years Community Corrections Order, 300 hours of community work, and a $5,000 fine was manifestly inadequate. The court had to consider the seriousness of the crimes, the objective gravity of the offending, and the importance of general deterrence in cases involving child pornography.
The court considered the gravity of the offences, particularly the accessing and possession of child pornography, and the need for general deterrence. It noted that a term of imprisonment is ordinarily expected for such offences. The court applied previous cases such as DPP (Cth) v Zarb and DPP v Smith to determine the appropriate sentence. The court also examined the classification of the material under the ANVIL scale and found that a lower classification did not diminish the objective seriousness of the offending. The court applied the principles from DPP (Cth) v Zarb and Porte v The Queen to assess the gravity of the offences as a whole.
The Court of Appeal found that the total effective sentence was not manifestly inadequate. It noted the respondent's compliance with the Community Corrections Order for over 7 months, the lack of public interest in removing him from civil society, and his good prospects of rehabilitation. The court exercised its residual discretion not to intervene and dismissed the appeal. The court concluded that the sentence imposed was appropriate given the circumstances and the need for general deterrence.