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Gilshenan v The Queen

Gilshenan v The Queen

Case [2019] NSWCCA 313 20 December 2019

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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 14
Texts Cited: ---
Category: Principal judgment
Parties: Mark Gilshenan (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr B Dean (Applicant)
Mr D Patch (Respondent)
Solicitors:
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

MACFARLAN JA: I agree with Johnson J.
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

Following pleas of guilty, the Applicant was sentenced by his Honour Judge…

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 Gilshenan v The Queen

Details

AGLC: Gilshenan v The Queen [2019] NSWCCA 313
Case: [2019] NSWCCA 313
Decision Date: 20 December 2019

CaseChat Overview and Summary

In the case of Gilshenan v The Queen, the appellant was convicted of various offences related to child pornography and faced a sentencing appeal. The primary focus of the appeal was the assessment of the objective seriousness of the offence, the application of the principles established in Veen v The Queen (No. 2), and the use of a Form 1 offence in the sentencing process. The appellant argued that the sentencing judge erred in various aspects of the sentencing process, including the assessment of the objective seriousness, the application of the Veen principles, and the use of a Form 1 offence. The court was required to determine whether these alleged errors warranted a reduction in the sentence or if the sentence was fair and appropriate given the circumstances.

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