FURBER -v- THE QUEEN [2008] WASCA 233
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 233 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:79/2008 | 22 SEPTEMBER 2008 | |
| Coram: | BUSS JA MILLER JA MURRAY AJA | 17/11/08 | |
| 26 | Judgment Part: | 1 of 1 | |
| Result: | CACR 79 of 2008: Leave to appeal refused SJA 1047 of 2008: Appeal allowed in part Order for imprisonment in default of payment of fines set aside | ||
| D | |||
| PDF Version |
| Parties: | WILLIAM JAMES HEWITT FURBER THE QUEEN MALCOLM ROSS PLANT |
Catchwords: | Criminal law and procedure Sentencing Appellant convicted on indictment of one offence of importation of child pornography and one offence of attempted export of child pornography Sentenced to cumulative terms of imprisonment aggregating 15 months with recognisance release order after 7 months Appellant also convicted summarily of three offences of importing prohibited imports and three offences of attempting to export prohibited exports Fined a total of $24,000 Whether sentences of imprisonment should have been suspended Whether sentences of imprisonment were excessive Whether sentences of imprisonment should have been imposed cumulatively Whether totality principle offended in relation to imprisonment and/or fines |
Legislation: | Nil |
Case References: | Assheton v The Queen [2002] WASCA 209; (2002) 132 A Crim R 237 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Djou v Commonwealth Department of Fisheries [2004] WASCA 282; (2004) 29 WAR 216 Duong v Western Australia [2006] WASCA 110; (2006) 32 WAR 246 Evans v Vanderheide [2001] WASCA 352; (2001) 126 A Crim R 239 Holland v The Queen [2005] WASCA 140; (2005) 30 WAR 231 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 R v C; Ex p. A-G (Qld) [2004] QCA 469 R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29 R v Jones (1999) 108 A Crim R 50 R v Liddington (1997) 18 WAR 394 Western Australia v Miller [2005] WASCA 53; (2005) 30 WAR 38 Western Australia v Wallam [2008] WASCA 117 Yates v Western Australia [2008] WASCA 144 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : FURBER -v- THE QUEEN [2008] WASCA 233 CORAM : BUSS JA
- MILLER JA
MURRAY AJA
- Appellant
AND
THE QUEEN
Respondent
- Appellant
AND
MALCOLM ROSS PLANT
Respondent
(Page 2)
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : MAZZA DCJ
Citation : THE QUEEN -v- FURBER
File No : IND 735 of 2008
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : TARR SM
Citation : PLANT -v- FURBER
File No : PE 18700-18705 of 2008
Catchwords:
Criminal law and procedure - Sentencing - Appellant convicted on indictment of one offence of importation of…
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Details
- AGLC
- Furber v The Queen [2008] WASCA 233
- Case
- [2008] WASCA 233
- Decision Date
CaseChat Overview and Summary
Furber, the appellant, was convicted of multiple charges including the importation and attempted export of child pornography, as well as several counts of importing and attempting to export prohibited items. The sentencing occurred in the County Court of Victoria, where Furber was sentenced to a total of 15 months imprisonment with a recognisance release order after seven months, as well as fines totalling $24,000. Furber sought an appeal against his sentence, arguing that the sentences of imprisonment should have been suspended, that the sentences were excessive, that they should not have been imposed cumulatively, and that the totality principle was offended in relation to the imprisonment and/or fines.
The central legal issues in this appeal were whether the sentences of imprisonment should have been suspended, whether they were excessive, whether they should have been imposed cumulatively, and whether the totality principle was violated. The court considered these arguments in light of the principles of sentencing and the relevant case law.
The court found that the sentences of imprisonment were not excessive and that they did not breach the totality principle. The court held that the sentences should not have been imposed cumulatively, but rather concurrently, as the offences were closely related and arose from the same course of conduct. The court also found that the sentences of imprisonment should not have been suspended, as the offences were serious and involved the importation and attempted export of child pornography. However, the court allowed the appeal in part and set aside the order for imprisonment in default of payment of fines, finding that this was not an appropriate sentence in the circumstances.
In summary, the appeal was allowed in part, and the order for imprisonment in default of payment of fines was set aside. The sentences of imprisonment were deemed not excessive and not in breach of the totality principle, but the court found that they should have been imposed concurrently rather than cumulatively.
The central legal issues in this appeal were whether the sentences of imprisonment should have been suspended, whether they were excessive, whether they should have been imposed cumulatively, and whether the totality principle was violated. The court considered these arguments in light of the principles of sentencing and the relevant case law.
The court found that the sentences of imprisonment were not excessive and that they did not breach the totality principle. The court held that the sentences should not have been imposed cumulatively, but rather concurrently, as the offences were closely related and arose from the same course of conduct. The court also found that the sentences of imprisonment should not have been suspended, as the offences were serious and involved the importation and attempted export of child pornography. However, the court allowed the appeal in part and set aside the order for imprisonment in default of payment of fines, finding that this was not an appropriate sentence in the circumstances.
In summary, the appeal was allowed in part, and the order for imprisonment in default of payment of fines was set aside. The sentences of imprisonment were deemed not excessive and not in breach of the totality principle, but the court found that they should have been imposed concurrently rather than cumulatively.
Orders
Orders of the court
CACR 79 of 2008: Leave to appeal refused
SJA 1047 of 2008: Appeal allowed in part
Order for imprisonment in default of payment of fines set aside
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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