The Queen v Edwards (Unreported, County Court of Victoria, Judge Pullen, 27 March 2013)
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CRIMINAL LAW – Leave to appeal against sentence – Use carriage service to transmit indecent communication to a person believed to be under 16 – Using carriage service to access child pornography – Use carriage service to make available child pornography – Possess child pornography – Total effective sentence of 17 months’ imprisonment – Non-parole period of five months purportedly fixed – Applicant to be released after serving five months’ imprisonment on a recognisance release order in the sum of $1,000 on the condition that he be of good behaviour for a period of three years – Not open to fix a non-parole period in respect of a sentence of less than 12 months’ imprisonment – Verdins principles – Sentence manifestly excessive – Serious sexual offender status – Leave granted – Appeal allowed – Total effective sentence of nine months’ imprisonment imposed – Applicant to be released on a recognisance release order in the sum of $500 on the condition that he be of good behaviour for a period of 12 months.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr K McDonald
Stuthridge Legal
For the Respondent
Ms K Breckweg
Director of Public Prosecutions (Cth)
NETTLE JA:
I invite Justice Osborn to deliver the first judgment.
OSBORN JA:
On 22 March 2013 the applicant pleaded guilty in the County Court to the following charges:
(a) one charge of using a carriage service to transmit indecent communication to a person believed to be under 16 years of age contrary to s 474.27A(1) of the Criminal Code 1995 (Cth) (‘the Code’) (charge one);
(b) one charge of using a carriage service to access child pornography contrary to s 474.19 of the Code (charge two);
(c) one charge of using a carriage service to make available child pornography contrary to s 474.19 of the Code (charge three);
(d) one charge of having possession of child pornography contrary to s 70(1) of the Crimes Act 1958 (Vic) (charge four).
The maximum penalty for the first offence is seven years’ imprisonment; for the second and third offences 15 years’ imprisonment; and for the fourth offence five years’ imprisonment.
Following a plea hearing, her Honour Judge Pullen sentenced the applicant on 27 March 2013 as follows:
(c) charge 3 – 10 months’ imprisonment commencing 27 June 2013; and
(d) charge 4 – nine months’ imprisonment commencing 27 March 2013.
Her Honour further purported to fix a non-parole period of five months in respect of the State sentence and to direct…
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
Edwards v The Queen [2013] VSCA 188
Case
[2013] VSCA 188
Decision Date
CaseChat Overview and Summary
Edwards was convicted of using a carriage service to transmit an indecent communication to a person believed to be under 16, accessing child pornography, making child pornography available, and possessing child pornography. The case was heard in the High Court of Australia. The primary issue before the court was whether the applicant was entitled to leave to appeal against his sentence, which was a total effective sentence of 17 months' imprisonment with a non-parole period of five months. The applicant contended that the sentence was manifestly excessive and that it was not open to fix a non-parole period in respect of a sentence of less than 12 months' imprisonment.
The court considered the principles established in Verdins and held that it was not open to fix a non-parole period in respect of a sentence of less than 12 months' imprisonment. The court also found that the total effective sentence of 17 months' imprisonment was manifestly excessive. The court acknowledged that the applicant was a serious sexual offender, but also considered the circumstances of the case and the need for deterrence and rehabilitation. The court allowed the appeal and imposed a total effective sentence of nine months' imprisonment, with the applicant to be released on a recognisance release order in the sum of $500 on the condition that he be of good behaviour for a period of 12 months.
The court's decision highlights the importance of considering the principles established in Verdins when fixing a non-parole period and the need to balance the competing considerations of deterrence, rehabilitation, and proportionality when imposing a sentence. The court's decision also demonstrates the seriousness with which the courts view sexual offences against children and the need to protect vulnerable members of the community.