R v Smith (Unreported, County Court of Victoria, Judge Pilgrim, 8 September 2009)
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CRIMINAL LAW – Use of carriage service to access child pornography – Possession of child pornography – High volume of material – Gravity of some material at upper end of spectrum – Period of possession at lower end of range – Sentenced 18 months’ imprisonment wholly suspended – 150 hours of community work and psychiatric treatment – Whether sentence manifestly inadequate – Whether adequate sentence required immediate term of imprisonment – Sentencing considerations – General deterrence – Offender’s need for counselling and rehabilitation – Maximise prospects of rehabilitation – Custodial sentence not required – Appeal dismissed.
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APPEARANCES:
Counsel
Solicitors
For the Director of Public Prosecutions
Mr J Champion SC
Commonwealth Director of Public Prosecution
For the Respondent
Mr D Hallows
LMSW Lawyers
NETTLE JA:
This is a Crown appeal against the alleged manifest inadequacy of the sentence imposed on the respondent on pleading guilty to one count of using a carriage service to access child pornography, contrary to s 474.19(1)(a) of the Criminal Code (Cth) (Count 1), and one count of possessing child pornography contrary to s 70(1) of the Crimes Act 1958 (Vic) (Count 2).
The maximum penalty for the offence of using a carriage service to access child pornography is ten years' imprisonment and the maximum penalty for the offence of possessing child pornography is five years' imprisonment.
The judge sentenced the respondent on Count 1 to 18 months' imprisonment to be wholly suspended for a period of two years; and, on Count 2, to a community-based order for a period of two years with special conditions that the respondent perform 150 hours of community work and be subject to the supervision of a Community Corrections Officer, undergo psychological psychiatric assessment and treatment pursuant to s 38(1)(d) of the Sentencing Act1991 and undergo a referral to the Sex Offender Programme and participate in such a programme.
The Crown makes no complaint about the sentence imposed on Count 1 but contends that the judge erred in relation to Count 2, by failing to recognise that anything less than an immediate term of imprisonment was inadequate punishment.
The facts
The facts of the matter are set out in detail in the judge's sentencing remarks and I shall not recite them all. For present purposes, it suffices to record the following.
On 20 October 2008 Australian Federal Police attended at the respondent's home and executed a search warrant at the premises. They seized three desk top computers and five compact discs. Subsequent examination of the computers revealed Shareaza a peer to peer file sharing software installed on two of the computers which allowed…
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 v Smith [2010] VSCA 215
Case
[2010] VSCA 215
Decision Date
CaseChat Overview and Summary
The case of DPP v Smith involved the Director of Public Prosecutions (DPP) prosecuting Smith for possessing and accessing child pornography through a carriage service. The matter was heard and determined by the NSW Court of Criminal Appeal. Smith had been found guilty of possessing a high volume of child pornography, some of which was extremely serious, and had been sentenced to 18 months imprisonment, suspended for two years, along with 150 hours of community service and psychiatric treatment.
The legal issues before the court were whether the sentence was manifestly inadequate and if a custodial sentence was necessary. The court considered various sentencing principles, including the need for general deterrence, the offender's need for rehabilitation, and the potential to maximise the offender's prospects for rehabilitation. The court also weighed the principle that a custodial sentence should not be imposed unless it is necessary.
The Court of Criminal Appeal held that the sentence was not manifestly inadequate. It determined that a custodial sentence was not necessary in this case, as the sentence imposed balanced the need for general deterrence with the offender's need for rehabilitation. The court emphasised that the psychiatric treatment and community service requirements would maximise Smith's prospects of rehabilitation. Accordingly, the appeal was dismissed.
No further orders were made by the court. The decision underscores the court's approach to sentencing in cases involving child pornography, highlighting the importance of rehabilitation and general deterrence while also considering the specific circumstances of each case.