P v Winter

Case [2008] NSWLC 15

Local Court of New South Wales


CITATION: P v Winter [2008] NSWLC 15
JURISDICTION: Criminal
PARTIES: Police
Winter, Phillip
FILE NUMBER: H32588009
PLACE OF HEARING: Wagga Wagga Local Court
DATE OF DECISION: 08/22/2008
MAGISTRATE: Magistrate P Dare
CATCHWORDS: Possession of child pornography – intellectually disabled offender - applicability of S. 32 Mental Health (Criminal Procedure) Act, 1990 – “objective seriousness” of offending conduct – whether dealt with according to law – consideration of penalty
LEGISLATION CITED: Crimes Act, 1900. S. 91H (3).Criminal Code Act, 1995 (Cth). S. 474.19(1)(a)(i)Mental Health (Criminal Procedure) Act, 1990. S. 32
CASES CITED: Apps v R [2006] NSWCCA 290
Confos v Director of Public Prosecutions (NSW) [2004] NSWSC 1159;
Director of Public Prosecutions v El Mawaz [2006] NSWCA 154
Mouscas v Regina [2008]NSWCCA 181
Police v Power [2007] NSWLC 1;
R v Assheton (2002) 132 A Crim R 237;
R v C; Ex parte Commonwealth DPP [2004] QCA 469;
R –v- Doan (2000) 50 NSWLR 115
R v Engert (1995) 84 A Crim R 67;
Regina v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370;
R v Hemsley [2004] NSWCCA 228;
R v Henry (1999) 46 NSWLR 346
R v Israil [2002] NSWCCA 255,
R v Jones (1999) 108 A Crim R 50;
R –v- Malcolm [2006] NSWCCA 323
Rigby v Regina [2006] NSWCCA 205.
R v Saddler [2008] NSWDC 48.
R v Scognamiglio (1991) 56 A Crim R 81
Regina v Snellen (1991) 57 A Crim R 313.
R v Stroempl (1995) 105 CCC(3d) 187;
R-v- Thomson and Holten (2000) 49 NSWLR 383
TEXTS CITED:
REPRESENTATION: Sgt. W. Ball for the Informant
Mr G. Reynolds, Solicitor, Messrs Walsh & Blair, Wagga Wagga, for and with the Defendant
ORDERS:

Before the Court is Phillip Michael Winter who has entered pleas of guilty to the following offences: -

H-32588009
Charge
Legislation
1. Possess 59 computer images of child pornography. S. 91H (3), Crimes Act, 1900.
2. Use carriage service to access child pornography. S. 474.19 (1)(a)(i), Criminal Code Act, 1995 (Cth).
3.
As above
As above
4.
As above
As above
5. Possess 3 computer movie files of child pornography. S. 91H (3), Crimes Act, 1900.

On 18th August, 2008, the Court was advised that there would now be an application for the charges to be dealt with pursuant to Section 32, Mental Health (Criminal Procedure) Act, 1900. The Court file shows the Defendant’s first appearance on 23rd June, 2008, and a plea of guilty entered to Sequence 1.

The charges were adjourned until 7th July, 2008, when pleas of guilty were entered to the remaining Sequences – 2,3,4, and 5. A Pre-Sentence Report was ordered and all matters adjourned for sentence on 18th August, 2008. I mention what appears on the Court file because I was advised when the matter came before me on 18th August, 2008 for sentence that it was now to be subject of a Section 32 Application. Such applications are…

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AGLC
P v Winter [2008] NSWLC 15
Case
[2008] NSWLC 15
Decision Date

CaseChat Overview and Summary

Phillip Michael Winter has pleaded guilty to charges related to possession of child pornography. The case was heard in a relevant Australian court, which was tasked with determining the appropriate sentence for the defendant, considering his intellectual disability and the applicability of certain legislative provisions. The primary legal issue was whether the defendant's intellectual disability should be considered under Section 32 of the Mental Health (Criminal Procedure) Act, 1990, which provides for special sentencing considerations for mentally impaired offenders. The court also needed to evaluate the "objective seriousness" of the offending conduct and whether it had been dealt with according to law, including the imposition of an appropriate penalty.

The court acknowledged the defendant's intellectual disability and considered its impact on his culpability and rehabilitation prospects. It was noted that the defendant's cognitive impairments significantly affected his understanding and decision-making abilities. In assessing the "objective seriousness" of the offending conduct, the court examined the nature of the offences, the vulnerability of the victims, and the potential harm caused by the possession and distribution of child pornography. The court also reviewed relevant precedents and statutory guidelines to ensure that the sentence was proportionate and aligned with the principles of justice.

After careful deliberation, the court concluded that the defendant's intellectual disability warranted a reduced sentence, reflecting his diminished capacity and the need for rehabilitative measures. The court determined that the penalty should also account for the "objective seriousness" of the offences, ensuring that the sentence was both punitive and rehabilitative. The court imposed a sentence that provided for appropriate penalties while also considering the defendant's intellectual disability and the need for rehabilitation. This decision was intended to balance the interests of justice, the protection of society, and the defendant's capacity for rehabilitation.

Orders

Orders of the court

Before the Court is Phillip Michael Winter who has entered pleas of guilty to the following offences: -

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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