Court of Criminal Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Gilshenan v R [2019] NSWCCA 313 Hearing dates: 9 October 2019 Date of orders: 20 December 2019 Decision date: 20 December 2019 Before: Macfarlan JA at [1]
Johnson J at [2]
Cavanagh J at [106]Decision: 1. Grant leave to appeal against sentence.
2. Appeal against sentence dismissed.Catchwords: APPEAL – offender pleaded guilty to a range of child pornography and related offences – whether sentencing Judge erred in assessment of objective seriousness of an offence – no error in assessment demonstrated in approach taken – whether sentencing Judge erred in applying the principles in Veen v The Queen (No. 2) – offender had demonstrated a continuing attitude of disobedience to the law – no misapplication of principle – whether sentencing Judge erred in elevating sentence by reason of a Form 1 offence – orthodox approach to use of Form 1 offence on sentence – whether sentence was manifestly excessive – where reliance placed on assertions of express errors – where other sentencing decisions do not establish pattern or range – sentence was not unreasonable or plainly unjust – leave to appeal granted and appeal dismissed Legislation Cited: Child Protection (Offenders Registration) Act 2000 (NSW)
Crimes Act 1900 (NSW)
Crimes Act 1958 (Vic)
Criminal Code (Cth)Cases Cited: Abbas v R (2013) 231 A Crim R 413; [2013] NSWCCA 115
Alarcon v R [2018] NSWCCA 298
Baumer v The Queen (1988) 166 CLR 51; [1988] HCA 67
Carroll v The Queen (2009) 83 ALJR 579; [2009] HCA 13
Dennis v R [2017] VSCA 251
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Hong v R [2017] NSWCCA 238
Maine v R [2018] VSCA 56
Obeid v R (2017) 96 NSWLR 155 at 241; [2017] NSWCCA 221
Peters v R [2018] NSWCCA 126
R v De Leeuw [2015] NSWCCA 183
R v Freedman (2017) 268 A Crim R 453; [2017] NSWCCA 201
R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242
R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174
RLS v R [2012] NSWCCA 236
Veen v The Queen (No. 2) (1988) 164 CLR 465; [1988] HCA 14Texts Cited: --- Category: Principal judgment Parties: Mark Gilshenan (Applicant)
Regina (Respondent)Representation: Counsel:
Solicitors:
Mr B Dean (Applicant)
Mr D Patch (Respondent)
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)
File Number(s): 2017/358481 Publication restriction: --- Decision under appeal
- Court or tribunal:
- District Court of New South Wales
- Jurisdiction:
- ---
- Citation:
- ---
- Date of Decision:
- 1 February 2019
- Before:
- His Honour Judge Hanley SC
- File Number(s):
- 2017/358481
Judgment
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MACFARLAN JA: I agree with Johnson J.
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JOHNSON J: The Applicant, Mark Gilshenan, seeks leave to appeal against sentences imposed at the Penrith District Court on 1 February 2019 for child pornography and related offences.
The Offences and Sentences
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Following pleas of guilty, the Applicant was sentenced by his Honour Judge…
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- AGLC
- Gilshenan v The Queen [2019] NSWCCA 313
- Case
- [2019] NSWCCA 313
- Decision Date
CaseChat Overview and Summary
The court examined the sentencing judge's approach to assessing the objective seriousness of the offence, the application of the principles from Veen v The Queen (No. 2), and the use of the Form 1 offence in determining the sentence. The court found that the sentencing judge did not err in their approach to assessing the objective seriousness of the offence, and that the principles from Veen were correctly applied. Additionally, the court held that the use of the Form 1 offence in the sentencing process was orthodox and appropriate, and did not constitute an error. The court found that the appellant had demonstrated a continuing attitude of disobedience to the law, which justified the elevation of the sentence. The court concluded that the sentence was not manifestly excessive, unreasonable, or plainly unjust, and that there was no misapplication of the principles involved.
The court dismissed the appeal and granted leave to appeal only to the extent that it confirmed the correctness of the sentence imposed by the sentencing judge. The reasoning of the court was that while the appellant had raised various grounds of appeal, none of them demonstrated a clear error in the sentencing process. The court's decision reinforced the importance of considering the objective seriousness of the offence, the principles established in Veen, and the appropriate use of Form 1 offences in sentencing decisions. The outcome of the case confirmed that the sentence imposed by the sentencing judge was fair and appropriate, and that the appeal was without merit.
Orders
Orders of the court
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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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