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
MACFARLAN JA : I agree with Garling J.
JOHNSON J : I agree with Garling J.
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.
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 Act1900. 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 Act1995 (Cth).
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.
The maximum penalty for the offence pursuant to the NSW Act is imprisonment for 10 years.
The maximum penalty for the offence at that time, pursuant to the Commonwealth Criminal Code, is also imprisonment for 10 years.
There is no standard non-parole period applying to either of the offences.
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.
In respect of the Commonwealth offence the sentencing judge imposed an overall sentence, again after allowing a…
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.
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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.