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Fitzgerald v R

Fitzgerald v R

Case [2015] NSWCCA 266 9 October 2015

Criminal Liability

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Fitzgerald v R [2015] NSWCCA 266
Hearing dates: 24 September 2015
Decision date: 09 October 2015
Before: Hoeben CJ at CL at [1]
Price J at [53]
Button J at [54]
Decision:
Leave to appeal granted.
Appeal dismissed.

Catchwords: CRIMINAL LAW – sentence appeal – four counts of possessing child abuse material and two counts of using a carriage service to access child pornography – over 1,145 items including 390 videos – 700 - 800 child victims – 25 percent of items in the most serious category – challenge to assessment of objective seriousness by sentencing judge – whether sentence was manifestly excessive – analysis of similar cases – appeal dismissed.
Legislation Cited: Crimes Act 1900 (NSW) – s 91H(2)
Crimes Act 1914 (Cth) – s 16A, s 28(1)(b)
Crimes (Sentencing Procedure) Act 1999 – s 21A
Commonwealth Criminal Code – s 474.19(1)(a)(i)
Cases Cited: House v The King [1936] HCA 40; 55 CLR 499
Martin v Regina [2014] NSWCCA 124
Mulato v Regina [2006] NSWCCA 282
R v Booth [2009] NSWCCA 89
R v De Leeuw [2015] NSWCCA 183
R v Gent [2005] NSWCCA 370; 162 A Crim R 29
R v Lee [2013] WASCA 216
R v Linardon [2014] NSWCCA 247
R v Martin [2014] NSWCCA 283
R v Minehan [2010] NSWCCA 140; 201 A Crim R 243
Category: Principal judgment
Parties: Matthew Fitzgerald – Applicant
Regina – Respondent Crown
Representation:
Counsel:
JJ Tunks – Applicant
P McGuire – Respondent Crown
Solicitors:
Marsdens Law Group – Applicant
Commonwealth Director of Public Prosecutions – Respondent Crown

File Number(s): 2013/076837
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

18 June 2014

Before:

Christie QC ADCJ

File Number(s):

2013/076837

Judgment

HOEBEN CJ at CL:

Offences and sentence

On 12 November 2013 the applicant pleaded guilty in the Campbelltown Local Court to the following offences:

One count of using a carriage service to access child pornography material between 1 October 2012 and 13 January 2013 contrary to s 474.19(1)(a)(i) of the Commonwealth Criminal Code;
Four counts of possessing child abuse material contrary to s 91H(2) of the Crimes Act 1900 (NSW); AND
One count of using a carriage service to access child pornography material between 1 March 2005 and 22 April 2008 contrary to s 474.19(1)(a)(i) of the Commonwealth Criminal Code.

The maximum penalties for the Commonwealth child pornography offences were 10 years imprisonment for the offence committed before 15 April 2010 and 15 years imprisonment for the offence committed after 15 April 2010. The maximum penalty for each of the State child abuse offences was 10 years imprisonment.
On 18 June 2014 the applicant was sentenced by Christie QC ADCJ as follows:

In respect of the State possession offences, imprisonment for a period of 3 years and 9 months commencing 13 September 2014 and expiring 12 June 2018 with a non-parole period of 2 years and 3 months expiring…

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 Fitzgerald v R

Details

AGLC: Fitzgerald v R [2015] NSWCCA 266
Case: [2015] NSWCCA 266
Decision Date: 09 October 2015

CaseChat Overview and Summary

In the case of Fitzgerald v R, the appellant, Fitzgerald, appealed against the sentence imposed by the sentencing judge, following his conviction on four counts of possessing child abuse material and two counts of using a carriage service to access child pornography. The offending included possession and access to over 1,145 items of child abuse material, of which 390 were videos. The victims of the offending numbered between 700 and 800, with 25 per cent of the items in the most serious category. The appeal focused on the assessment of the objective seriousness of the offending and the contention that the sentence was manifestly excessive.

The court was required to determine whether the sentencing judge had erred in assessing the objective seriousness of the offending and whether the sentence was manifestly excessive. The appeal hinged on the argument that the sentencing judge had overemphasised certain factors, such as the number of victims, and had not given sufficient weight to other factors, such as the appellant’s otherwise unblemished criminal record. The appellant submitted that the sentence was manifestly excessive and should be reduced.

The court reviewed the sentencing judge’s assessment of the objective seriousness of the offending and considered the principles of sentencing for offences of this nature. The court concluded that the sentencing judge had correctly applied the relevant principles and had not erred in assessing the objective seriousness. The court also considered the appellant’s submissions regarding the sentence being manifestly excessive and found that the sentence was within the range of sentences that could be imposed for offending of this nature. The appeal was dismissed.

Orders