PHINTHONG -v- THE QUEEN [2011] WASCA 192
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASCA 192 | |
| THE COURT OF APPEAL (WA) | 16/09/2011 | ||
| Case No: | CACR:216/2010 | 1 AUGUST 2011 | |
| Coram: | McLURE P BUSS JA MAZZA J | 1/08/11 | |
| 7 | Judgment 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
- 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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- AGLC
- 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.
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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