Dr v The Queen

[2012] ACTCA 15

DR v THE QUEEN
[2012] ACTCA 15 (10 February 2012)

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 19 - 2011
No. SCC 54 of 2010

Judges:        Higgins CJ, Burns and North JJ
Court of Appeal of the Australian Capital Territory
Date:           10 February 2012

IN THE SUPREME COURT OF THE     )          No. ACTCA 19 - 2011
  )          No. SCC 54 of 2010
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DR

Appellant

AND:THE QUEEN

Respondent

ORDER

Judges:  Higgins CJ, Burns and North JJ
Date:  10 February 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

1. The cross-appeal be dismissed.

IN THE SUPREME COURT OF THE     )          No. ACTCA 19 - 2011
  )          No. SCC 54 of 2010
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DR

Appellant

AND:THE QUEEN

Respondent

Judges:  Higgins CJ, Burns and North JJ
Date:  10 February 2012
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

1. On 7 December 2010, the appellant, DR, was found guilty by Mathews AJ in relation to one count of using a child for the production of child pornography and one count of intentionally possessing child pornography.  It is his conviction with respect to the first count against which he now appeals.  There is also a cross-appeal by the Crown against the sentence imposed by her Honour in respect of that offence.

1. Regarding the first appeal, we would simply say that we agree with her Honour as to the meaning to be given to the expression “use” in s 64(3) of the Crimes Act 1900 (ACT). We have nothing to add to what her Honour had to say and we would therefore dismiss that appeal.

1. In relation to the Crown appeal, it is noted that her Honour found that the appellant had demonstrated significant remorse for his offending.  That finding was made notwithstanding what might be regarded, and indeed what we would regard, as the rather fanciful excuses put forward by the appellant for his gross breach of trust in effectively producing the pornographic images that were later found on his computer.  Indeed, we must say that we would not have been as readily persuaded as her Honour to make such a finding. 

1. Yet even if we accept the fact that he was remorseful, we would have thought that a sentence composed entirely of periodic detention was, in the circumstances, manifestly inadequate.  We would have thought that a period of full-time custody was required. The result we would have come to at first instance would have been a period of six months of full-time custody, with the remainder of the sentence to be served by way of periodic detention.

1. However, this is a Crown appeal and though it is not necessarily one that we share, there is a view that that a Crown appeal is a form of double jeopardy, in the sense that a person is exposed twice to the prospect of being given full-time custody.  Certainly there will be circumstances where that will happen.  The mere fact that a person has completed a sentence of full-time custody, or has not been given a sentence of full-time custody, does not necessarily mean that a sentence of full-time custody cannot be imposed in place of an inadequate sentence. 

1. Nevertheless, the Crown submission before her Honour was that the sentence of full-time custody should in any event have been short. As suggested above, we would have thought that a sentence of six months was appropriate, but we accept that a sentence of about four months could have been justified without being manifestly inadequate.  Given that the appellant has already served nine months of periodic detention, and notwithstanding our view that the sentence imposed was indeed inadequate, we would dismiss the Crown appeal. 

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date:    20 March 2012

Counsel for the Appellant:  Mr K Archer
Solicitor for the Appellant:  Kamy Saeedi Lawyers
Counsel for the Respondent:  Mr A Doig
Solicitor for the Respondent:  Director of Public Prosecutions for the ACT
Date of hearing:  10 February 2012
Date of judgment:  10 February 2012