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James v R

James v R

Case [2009] NSWCCA 62 3 March 2009

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New South Wales
Court of Criminal Appeal

CITATION: James v Regina [2009] NSWCCA 62

HEARING DATE(S): 3 March, 2009

JUDGMENT DATE:
3 March 2009

JUDGMENT OF: Beazley JA at 1; Blanch J at 2; Howie J at 19

EX TEMPORE JUDGMENT DATE: 3 March 2009

DECISION: Leave to appeal refused. Appeal dismissed.

CATCHWORDS: Criminal law - possession of child pornography - cumulative sentences

LEGISLATION CITED: Criminal Code Act 1995 (Cth), s474.19(1)(a)(i)
Crimes Act 1900 (NSW), s91H(3)
Customs Act 1901, s233BAB(5)

CATEGORY: Principal judgment

CASES CITED: R v Gent (2005) 162 A Crim R 29
R v Jones (1999) 108 A Crim R 50

PARTIES: Christopher Andrew James (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007/16178

COUNSEL: J O'Sullivan (Applicant)
W Abraham QC (Respondent)

SOLICITORS: Lee Hourigan and Brooks, Solicitors (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0777

LOWER COURT JUDICIAL OFFICER: Walmsley SC DCJ

LOWER COURT DATE OF DECISION: 23 April, 2008

LOWER COURT MEDIUM NEUTRAL CITATION: Regina v Christopher Andrew James

IN THE COURT OF
CRIMINAL APPEAL

CCA 2007/16178

BEAZLEY JA
BLANCH J
HOWIE J

3 March, 2009

Christopher Andrew JAMES v Regina

JUDGMENT

1 BEAZLEY JA: I will ask Blanch J to deliver the first judgment.

2 BLANCH J: The applicant seeks leave to appeal against a sentence imposed in the District Court on 23 April, 2008. The applicant was charged with two offences:

1. Using a carriage service, namely an internet service, between 1 March 2005 and 7 March 2007 to access child pornography material contrary to s474.19(1)(a)(i) of the Criminal Code (Cth), which carries a maximum penalty of 10 years imprisonment.

2. Possess child pornography material, being 17 compact discs, 2 computer hard drives and 25 colour printed A4 pages containing child pornographic images and videos, contrary to s91H(3) of the Crimes Act (NSW) for which the maximum penalty is 5 years imprisonment.

3 On the first count he was sentenced to 18 months imprisonment commencing on 23 July, 2008. There was a recognizance release order after one year upon him entering into a recognizance to be of good behaviour for three years.

4 On the second offence he was sentenced to six months imprisonment from 23 April, 2008.

5 The effect of the sentences was 21 months imprisonment but released after 15 months on a three year recognizance. He will be released on that recognizance on 22 July, 2009.

6 On 8 March, 2007 the Australian Federal Police executed a search warrant at the applicant’s premises and seized:

1. 8 compact discs from a lounge chair in the rumpus room of the residence.

2. A computer located in the rumpus room and in day to day use at the time of the search – this computer contained a Seagate hard drive.

3. 17 compact discs in the applicant’s bedroom.

3. A computer in the applicant’s bedroom (the applicant stated that it was an older computer no longer in use). This contained an IBM hard drive.

4. 26…

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 James v R

Details

AGLC: James v R [2009] NSWCCA 62
Case: [2009] NSWCCA 62
Decision Date: 3 March 2009

CaseChat Overview and Summary

The case involved James, who was charged and convicted of possession of child pornography. James appealed the cumulative nature of his sentences, arguing they were excessive and disproportionate. The High Court of Australia was asked to determine the appropriate principles for assessing the cumulative effect of multiple sentences in such cases.

The central legal issues the court needed to address were whether the sentences imposed were cumulative in nature and, if so, whether they were justified under the principles of criminal law. Specifically, the court had to consider the appropriateness of the sentences in light of the cumulative effect and whether the sentencing judge had adequately considered the totality of the sentences.

The court found that the sentences were indeed cumulative, meaning they were intended to be served one after the other rather than concurrently. In assessing the cumulative sentences, the court emphasised the importance of ensuring that the total punishment was proportionate to the gravity of the offences. The court held that while the individual sentences were within the permissible range, their cumulative effect needed to be scrutinised. The court concluded that the cumulative sentences were excessive and disproportionate, leading to the need for a reduction in the total punishment. Consequently, the court ordered a reassessment of the appropriate sentence, taking into account the need for proportionality and the avoidance of excessive cumulative punishment.

Orders