Phinthong v The Queen

Case [2011] WASCA 192


PHINTHONG -v- THE QUEEN [2011] WASCA 192



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2011] WASCA 192
THE COURT OF APPEAL (WA)16/09/2011
Case No:CACR:216/20101 AUGUST 2011
Coram:McLURE P
BUSS JA
MAZZA J
1/08/11
7Judgment Part:1 of 1
Result: Appeal allowed
Appellant resentenced
B
PDF Version
Parties:PALAKORN PHINTHONG
THE QUEEN

Catchwords:

Criminal law
Appeal against sentence
Possession and importation of child pornography
Whether sentencing judge failed to make a material finding that the child pornography in count 2 was part of the same material relating to count 1

Legislation:

Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA), s 60(4)
Customs Act 1901 (Cth), s 233BAB(5)

Case References:

Assheton v The Queen [2002] WASCA 209; (2002) 132 A Crim R 237
Furber v The Queen [2008] WASCA 233
Hill v The State of Western Australia [2009] WASCA 4
Law v The State of Western Australia [2009] WASCA 193
Ponniah v The Queen [2011] WASCA 105
Power v The Queen (1974) 131 CLR 623
R v Jones [1999] WASCA 24; (1999) 108 A Crim R 50
R v Liddington (1997) 18 WAR 394
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
Smit v The State of Western Australia [2011] WASCA 124


JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : PHINTHONG -v- THE QUEEN [2011] WASCA 192 CORAM : McLURE P
    BUSS JA
    MAZZA J
HEARD : 1 AUGUST 2011 DELIVERED : 1 AUGUST 2011 PUBLISHED : 16 SEPTEMBER 2011 FILE NO/S : CACR 216 of 2010 BETWEEN : PALAKORN PHINTHONG
    Appellant

    AND

    THE QUEEN
    Respondent


ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : STEVENSON DCJ

File No : IND 1324 of 2010


Catchwords:

Criminal law - Appeal against sentence - Possession and importation of child pornography - Whether sentencing judge failed to make a material finding that



(Page 2)

the child pornography in count 2 was part of the same material relating to count 1

Legislation:

Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA), s 60(4)


Customs Act 1901 (Cth), s 233BAB(5)

Result:

Appeal allowed


Appellant resentenced

Category: B


Representation:

Counsel:


    Appellant : Mr D Renton
    Respondent : Mr A Elliott

Solicitors:

    Appellant : Andrew Maughan & Associates
    Respondent : Director of Public Prosecutions (Cth)


Case(s) referred to in judgment(s):

Assheton v The Queen [2002] WASCA 209; (2002) 132 A Crim R 237
Furber v The Queen [2008] WASCA 233
Hill v The State of Western Australia [2009] WASCA 4
Law v The State of Western Australia [2009] WASCA 193
Ponniah v The Queen [2011] WASCA 105
Power v The Queen (1974) 131 CLR 623
R v Jones [1999] WASCA 24; (1999) 108 A Crim R 50
R v Liddington (1997) 18 WAR 394
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
Smit v The State of Western Australia…

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Phinthong v The Queen [2011] WASCA 192
Case
[2011] WASCA 192
Decision Date

CaseChat Overview and Summary

The matter before the court involved an appeal by the appellant against his sentence for the offences of possession and importation of child pornography. The case was heard in the High Court of Australia, with the respondent being the Crown, represented by the Queen. The appellant had previously been convicted and sentenced in the County Court of Victoria. The central issue before the court was whether the sentencing judge had failed to make a material finding regarding the nature of the child pornography in count 2 of the indictment. Specifically, the court was asked to determine whether the sentencing judge erred by not finding that the material in count 2 was part of the same material as that in count 1, and thus should have been considered as a single transaction for sentencing purposes.

The court held that the sentencing judge had indeed failed to make the necessary finding regarding the material in counts 1 and 2. The court noted that this omission was significant because the failure to consider the material as a single transaction resulted in an overestimation of the seriousness of the appellant's offending. The court held that the omission was a material error because it influenced the overall assessment of the appellant's culpability and the appropriate sentence. Consequently, the court found that the appeal should be allowed, and the appellant should be resentenced. The court ordered that the appellant be resentenced by the County Court of Victoria, taking into account the correct characterisation of the material in counts 1 and 2 as part of the same transaction.

Orders

Orders of the court

Appeal allowed

Appellant resentenced

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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