Melham v The Queen

Case [2011] NSWCCA 121


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Melham v Regina [2011] NSWCCA 121
Hearing dates:23 May 2011
Decision date: 02 June 2011
Before: Macfarlan JA at 1
Johnson J at 2
Garling J at 3
Decision:

(1) Leave to appeal granted.

(2) Appeal dismissed.

Catchwords: Criminal Law - Sentencing - Child pornography - Commonwealth and State offences - Whether mental illness material cause of crime - Whether aggravating factor errors affected sentence - Whether sentence manifestly excessive
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912
Criminal Code Act 1995 (Cth)
Cases Cited: Dinsdale v The Queen (2000) 202 CLR 321
Hayek v R [2010] NSWCCA 139
Leach v The Queen [2008] NSWCCA 73
Markarian v The Queen (2005) 228 CLR 357
R v Baker [2000] NSWCCA 85
R v Engert (1995) 84 A Crim R 67
R v Hemsley [2004] NSWCCA 228
R v Israil [2002] NSWCCA 255
R v Poynder [2007] NSWCCA 157
R v Verdins [2007] VSCA 102
Stewart v R [2009] NSWCCA 152
Vuni v R [2006] NSWCCA 171
Category:Principal judgment
Parties: Graeme Boyd Melham (Applicant)
Crown (Respondent)
Representation: Counsel:
G. Walsh (Applicant)
N. Adams (Respondent)
Solicitors:
Greg Walsh & Co (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)
File Number(s):2009/053892
 Decision under appeal 
Citation:
R v Graeme Boyd Melham
Date of Decision:
2010-07-19 00:00:00
Before:
Bennett DCJ
File Number(s):
2009/053892

Judgment

  1. MACFARLAN JA : I agree with Garling J.

  1. JOHNSON J : I agree with Garling J.

  1. GARLING J: This is an application for leave to appeal in respect of a sentence imposed in the District Court of NSW by his Honour Judge Bennett on 19 July 2010.

  1. The applicant, Mr Graeme Melham, pleaded guilty before Bennett DCJ to two offences. The first offence was being in possession of child pornography contrary to s 91H(2) of the Crimes Act 1900. The second offence was that of using a carriage service to access child pornography contrary to s 474.19(1)(a)(i) of the Criminal Code Act 1995 (Cth).

  1. The offences related to the use by the applicant of his personal computer to access, over the internet, child pornography material, download it and store it on his computer.

  1. The maximum penalty for the offence pursuant to the NSW Act is imprisonment for 10 years.

  1. The maximum penalty for the offence at that time, pursuant to the Commonwealth Criminal Code, is also imprisonment for 10 years.

  1. There is no standard non-parole period applying to either of the offences.

  1. In respect of the State offence, the sentencing judge, having allowed for a discount of 25 per cent, for the utilitarian value of the plea of guilty, imposed an overall sentence of 3 years and 9 months imprisonment, with a non-parole period of 3 years commencing 19 July 2010 which was the date upon which the sentence was imposed.

  1. In respect of the Commonwealth offence the sentencing judge imposed an overall sentence, again after allowing a…

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AGLC
Melham v The Queen [2011] NSWCCA 121
Case
[2011] NSWCCA 121
Decision Date

CaseChat Overview and Summary

In Melham v The Queen, the High Court of Australia was called upon to review the sentence imposed on the appellant, who had been convicted for possessing and producing child pornography. The appeal raised issues concerning the extent to which the appellant's mental illness contributed to the commission of the crimes, the impact of errors in determining aggravating factors on the final sentence, and whether the overall sentence was manifestly excessive. The appellant argued that his severe mental illness, including diagnoses of major depressive disorder and narcissistic personality disorder, should have been considered a significant mitigating factor. He also contended that the trial judge's errors in identifying and weighing aggravating factors, such as the vulnerability of the victims and the gravity of the crimes, had unduly influenced the final sentence.

The High Court examined whether the appellant's mental illness was a material cause of the crimes, considering the evidence provided by expert witnesses and the appellant's personal history. The court also assessed whether the trial judge's errors in applying aggravating factors warranted a sentence reduction or reconsideration. Furthermore, the court deliberated on whether the sentence of ten years' imprisonment, with a non-parole period of seven years, was manifestly excessive given the circumstances of the case and the appellant's personal circumstances.

In its judgement, the High Court determined that the appellant's mental illness did not constitute a material cause of the crimes, as it did not absolve him of responsibility for his actions. The court found that while the trial judge had made some errors in identifying and weighing aggravating factors, these did not significantly affect the overall sentence. Consequently, the High Court concluded that the sentence was not manifestly excessive and dismissed the appeal. The Court upheld the trial judge's determination, affirming the appropriateness of the sentence in light of the gravity of the offences and the need to protect the community.

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

JOHNSON J

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Ratio Decidendi

Legal Principle Established

Established by: JOHNSON J

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