COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Director of Public Prosecutions v Latham [2009] TASSC 101
PARTIES: DIRECTOR OF PUBLIC PROSECUTIONS v LATHAM, Lindsay Gordon
FILE NO/S: 373/2009 DELIVERED ON: 12 November 2009 DELIVERED AT: Hobart HEARING DATE: 11 August 2009 JUDGMENT OF: Evans and Porter JJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Crown appeal – Production, distribution and possession of child exploitation material – Production by typing words in online discussion – Approach to child pornography offences – Whether sentence manifestly inadequate.
R v Jones (1999) 108 A Crim R 50; R v Oliver [2003] 1 Cr App R 28; R v Gent (2005) 162 A Crim R 29, applied. Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel: Appellant: T J Ellis SC and J Ansell Respondent: P A Warmbrunn Solicitors: Appellant: Director of Public Prosecutions Respondent: E R Henry Wherrett & Benjamin
Judgment Number: [2009] TASSC 101 Number of paragraphs: 51
Serial No 101/2009 File No 373/2009
DIRECTOR OF PUBLIC PROSECUTIONS v LINDSAY GORDON LATHAM
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
EVANS J
PORTER J 12 November 2009
Order of the Court
Appeal allowed.
Sentence 10 months' imprisonment to commence on 9 April 2009, the execution of six months of which was suspended on condition that he be of good behaviour for a period of three years, quashed.
Respondent sentenced to imprisonment for two years to date from 14 August 2009.
The respondent is not to be eligible for parole until he has served one half of that sentence of imprisonment.
Serial No 101/2009 File No 373/2009
DIRECTOR OF PUBLIC PROSECUTIONS v LINDSAY GORDON LATHAM
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
EVANS J 12 November 2009
I have had the benefit of reading the reasons for judgment prepared by Porter J and agree with his reasons for allowing the appeal. Had it not been that a significant aspect of the respondent's criminal conduct was producing child exploitation material by means of his involvement in internet chat room conversations, I doubt that I would have allowed the appeal. It has only been since the growth of the internet that criminal conduct of the nature of the respondent's has become the subject of the criminal law. In the time that has passed since the crimes for which the respondent has been convicted were introduced into the Criminal Code Act1924 ("the Code"), no discernible sentencing range has emerged from the sentences imposed for these crimes. There is however, an increasing tendency for crimes such as these to attract an immediately effective sentence of imprisonment. I strongly favour this tendency and the message it sends, which is that those who might be similarly inclined can expect to serve an actual term of imprisonment if they act on that inclination. The impact of this message comes more from the certainty of imprisonment than the length of the term imposed. Whilst the sentence imposed on…
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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AGLC
DPP v Latham [2009] TASSC 101
Case
[2009] TASSC 101
Decision Date
CaseChat Overview and Summary
The case of the Director of Public Prosecutions versus Latham involved an appeal against the sentence imposed on the defendant, Latham, who had been convicted for the production, distribution, and possession of child exploitation material. Latham's conviction stemmed from his participation in an online discussion where he typed words that led to the viewing of child exploitation content. The matter was brought before the court for consideration of the sentence's adequacy, with the Crown appealing the decision.
The primary legal issue before the court was whether the sentence imposed on Latham was manifestly inadequate. The Crown argued that the sentence did not reflect the seriousness of the offences and the need to deter such conduct. The court had to assess the nature of the offences, the culpability of the defendant, and the sentencing principles applicable to child exploitation material cases. Additionally, the court had to consider whether the sentence imposed was appropriate in the context of the broader objectives of sentencing, including general and specific deterrence, as well as the protection of the community.
In examining the sentence, the court considered various factors, including the gravity of the offences, Latham's level of involvement, and the impact of his actions on the victims. The court emphasised the importance of sentencing in child exploitation cases, given the profound harm caused to children and the need to deter potential offenders. The court found that the sentence imposed was manifestly inadequate in light of the seriousness of the offences and the need to send a strong message against such conduct. Consequently, the court allowed the appeal and ordered a new sentencing hearing to ensure that the sentence appropriately reflected the gravity of the crimes committed.
The final orders of the court were that the appeal be allowed, and the matter be remitted for a new sentencing hearing to ensure that the sentence imposed on Latham was commensurate with the gravity of his offences and the broader objectives of sentencing in cases involving child exploitation material.