Furber v The Queen

Case [2008] WASCA 233


FURBER -v- THE QUEEN [2008] WASCA 233



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2008] WASCA 233
THE COURT OF APPEAL (WA)
Case No:CACR:79/200822 SEPTEMBER 2008
Coram:BUSS JA
MILLER JA
MURRAY AJA
17/11/08
26Judgment 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
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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
HEARD : 22 SEPTEMBER 2008 DELIVERED : 18 NOVEMBER 2008 FILE NO/S : CACR 79 of 2008 BETWEEN : WILLIAM JAMES HEWITT FURBER
    Appellant

    AND

    THE QUEEN
    Respondent
FILE NO/S : SJA 1047 of 2008 BETWEEN : WILLIAM JAMES HEWITT FURBER
    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.

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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