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Police v Sidney Lee Burchett

Police v Sidney Lee Burchett

Case [2011] NSWLC 15 27 May 2011

Criminal Liability

Sentencing

Possessing child pornography

Disseminating child pornography

Criminal Law

Type to search within this case.

Local Court

New South Wales

Medium Neutral Citation: Police v Sidney Lee Burchett [2011] NSWLC 15
Hearing dates: 20/04/2011
Decision date: 27 May 2011
Jurisdiction: Criminal
Before: Magistrate Tsavdaridis
Decision:
1. Sequence 1
Disseminating child pornography
The offender is convicted and sentenced to a term of imprisonment of 2 years commencing on 27 May 2011 and expiring on 26 May 2013 with a non-parole period of 14 months commencing on 27 May 2011 and expiring on 26 July 2012 and a balance of term from 27 July 2012 to 26 May 2013.
2. Sequence 2
Possessing child pornography
The offender is convicted and sentenced to a term of imprisonment of 2 years commencing on 27 August 2011 and expiring on 26 August 2013 with a non-parole period of 14 months commencing on 27 August 2011 and expiring on 26 October 2012 and a balance of term from 27 October 2012 to 26 August 2013.
3. Sequence 3
Possessing child pornography
The offender is convicted and sentenced to a term of imprisonment of 2 years commencing on 27 August 2011 and expiring on 26 August 2013 with a non-parole period of 14 months commencing on 27 August 2011 and expiring on 26 October 2012 and a balance of term from 27 October 2012 to 26 August 2013.

Catchwords: CRIMINAL LAW - Child pornography - Disseminate child pornography - Chat logs forming basis of dissemination charge - Possess child pornography - Sentencing principles
Legislation Cited: Crimes Act 1900 (NSW), ss 91H, 91FA, 91FB
Criminal Procedure Act 1986 (NSW), ss 260, 267, 289A, 289B
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A, 22, 44, 58
Cases Cited: Cahyadi v R [2007] NSWCCA 1
Han v R [2009] NSWCCA 300
Hejazi v R [2009] NSWCCA 282
Mill v R (1988) 166 CLR 59
Minehan v R [2010] NSWCCA 140
R v Bloomfield (1998) 44 NSWLR 734
R v Boney [2008] NSWCCA 313
R v Booth [2009] NSWCCA 89
R v Borkowski [2009] NSWCCA 102
R v Crump (unreported, 30/5/94, NSWCCA)
R v Dib [2003] NSWCCA 117
R v Doan (2000) 50 NSWLR 115
R v Fidow [2004] NSWCCA 172
R v Gent [2005] NSWCCA 370
R v King [2004] NSWCCA 444
R v Oliver [2003] 1 Cr App R 28
R v Reyes [2005] NSWCCA 218
R v Saddler [2008] NSWDC 48
R v Thomson; R Houlton (2000) 49 NSWLR 383
R v Stambolis [2006] NSWCCA 56
R v Stroempl (1995) 105 CCC (3d) 187
R v Way (2004) 60 NSWLR 168
R v Zamagias [2002] NSWCCA 17
Sinkovich v R [2011] NSWCCA 90
Sullivan v R; Skillin v R [2008] NSWCCA 296
The Queen v De Simoni (1981) 147 CLR 383
Wright v R [2006] NSWCCA 122
Category: Sentence
Parties: NSW Police Force (Prosecuting Authority)
Sidney Lee Burchett (Offender)
Representation: Mr P Lowe (for Offender)
Mr Drabe (for NSW Police Force)

File Number(s): 2010/230812

JUDGMENT

Reasons for Decision

Background

The offender comes before the Court charged with one count of disseminating child…

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.

Continue reading Police v Sidney Lee Burchett

Details

AGLC: Police v Sidney Lee Burchett [2011] NSWLC 15
Case: [2011] NSWLC 15
Decision Date: 27 May 2011

CaseChat Overview and Summary

The defendant, Sidney Lee Burchett, faced charges related to the dissemination and possession of child pornography in the Australian court. The case revolved around the defendant's use of chat logs to share and possess indecent images of children. The court was tasked with determining whether these chat logs constituted dissemination under the relevant criminal statutes and assessing the appropriate sentence.

The primary legal issues involved interpreting the statutory definitions of dissemination and possession in the context of digital communications. The court had to decide if the act of sending chat logs constituted dissemination of child pornography and whether the possession of such images warranted separate sentencing. The court also considered the principles of sentencing for such offences, including the culpability of the offender and the need for deterrence.

The court concluded that the defendant's actions met the statutory criteria for both dissemination and possession of child pornography. It found that the sending of chat logs containing child pornography constituted dissemination, and the possession of such material warranted separate sentencing. In determining the sentence, the court emphasised the serious nature of the offences and the need for a strong deterrent message. It sentenced the defendant to concurrent terms of imprisonment for each offence, with specific non-parole periods and balances of term.

The court issued final orders sentencing the defendant to imprisonment terms for disseminating and possessing child pornography, with specified commencement and expiration dates for each sentence and their respective non-parole periods.

Orders

Orders of the court

1. Sequence 1

Disseminating child pornography

The offender is convicted and sentenced to a term of imprisonment of 2 years commencing on 27 May 2011 and expiring on 26 May 2013 with a non-parole period of 14 months commencing on 27 May 2011 and expiring on 26 July 2012 and a balance of term from 27 July 2012 to 26 May 2013.

2. Sequence 2

Possessing child pornography

The offender is convicted and sentenced to a term of imprisonment of 2 years commencing on 27 August 2011 and expiring on 26 August 2013 with a non-parole period of 14 months commencing on 27 August 2011 and expiring on 26 October 2012 and a balance of term from 27 October 2012 to 26 August 2013.

3. Sequence 3

Possessing child pornography

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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Citations

AGLC Citation

Police v Sidney Lee Burchett [2011] NSWLC 15

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 23 of 23 shown

Sinkovich v R
[2011] NSWCCA 90 Para 1

…with statistical figures and percentages. The critical question is whether the sentence imposed is appropriate for the particular case: Sinkovich v R [2011] NSWCCA 90 at [41].…
Minehan v R
[2010] NSWCCA 140 Para 1

…More recently, RA Hulme J in Minehan v R [2010] NSWCCA 140 at [94] (with whom Macfarlan and Johnson JJ agreed) identified the following factors as having relevance to an assessment of the objective seriousness of child pornography offences: -…
Han v R
[2009] NSWCCA 300 Para 1

…iction. Whilst they are instructive and I have had regard to them, their use must be tempered with the cautions referred to by Campbell JA in Han v R [2009] NSWCCA 300 at [2] wherein it was held that: -…
Hejazi v R
[2009] NSWCCA 282

…89B Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A, 22, 44, 58 Cases Cited: Cahyadi v R [2007] NSWCCA 1 Han v R [2009] NSWCCA 300 Hejazi v R [2009] NSWCCA 282 Mill v R (1988) 166 CLR 59 Minehan v R [2010] NSWCCA 140 R v Bloomfield (1998) 44 NSWLR 734 R v Boney [2008] NSWCCA 313 R v Booth [2009] NSWCCA 89 R…
R v Robert Borkowski
[2009] NSWCCA 102 Para 1

…ocedure) Act 1999 (NSW) and the principles enunciated in R v Thomson; R Houlton (2000) 49 NSWLR 383, R v Stambolis [2006] NSWCCA 56 and R v Borkowski [2009] NSWCCA 102 , I take into account the plea of guilty and I allow a 20% discount for the utilitarian value of the pleas.…
R v Booth
[2009] NSWCCA 89 Para 1

…rrence and denunciation as considerations based on the exploitative nature of these offences was made clear in the decision of Simpson J in R v Booth [2009] NSWCCA 89 wherein her Honour (with whom McClelland CJ at CL and Howie J agreed) held, at [40]: -…
R v Boney
[2008] NSWCCA 313 Para 1

…on sentence is to be reduced accordingly. This applies in circumstances where there has been a plea bargain: R v Dib [2003] NSWCCA 117 and R v Boney [2008] NSWCCA 313, or where an offender waits to see what charges are ultimately brought by the Crown: Sullivan v R; Skillin v R [2008] NSWCCA 296. Having regard to s…
Sullivan v R; Skillin v R
[2008] NSWCCA 296 Para 1

…CA 117 and R v Boney [2008] NSWCCA 313, or where an offender waits to see what charges are ultimately brought by the Crown: Sullivan v R; Skillin v R [2008] NSWCCA 296. Having regard to s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and the principles enunciated in R v Thomson; R Houlton (2000) 49 NSWLR 38…
R v Saddler
[2008] NSWDC 48 Para 1

…o separate charges for the 'possess' offences appears to have been so as to discern the material found on one computer from the other. In R v Saddler [2008] NSWDC 48, each charge was based on the location of material on separate electronic devices and cumulative sentences were imposed to reflect this. Other than t…
Cahyadi v R
[2007] NSWCCA 1 Para 1

…view, be made partially cumulative and partially concurrent to the offences for sequences 2 and 3 so that, to use the words of Howie J in Cahyadi v R [2007] NSWCCA 1 at [27], the sentence for one offence could "comprehend and reflect the criminality for the other offence" and that if it could not, the sentences sh…
Wright v The Queen
[2006] NSWCCA 122

…agias [2002] NSWCCA 17 Sinkovich v R [2011] NSWCCA 90 Sullivan v R; Skillin v R [2008] NSWCCA 296 The Queen v De Simoni (1981) 147 CLR 383 Wright v R [2006] NSWCCA 122 Category: Sentence Parties: NSW Police Force (Prosecuting Authority) Sidney Lee Burchett (Offender) Representation: Mr P Lowe (for Offender) Mr Drabe…
R v Stambolis
[2006] NSWCCA 56 Para 1

…o s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and the principles enunciated in R v Thomson; R Houlton (2000) 49 NSWLR 383, R v Stambolis [2006] NSWCCA 56 and R v Borkowski [2009] NSWCCA 102 , I take into account the plea of guilty and I allow a 20% discount for the utilitarian value of the pleas.…
R v Gent
[2005] NSWCCA 370 Para 1

…In R v Gent [2005] NSWCCA 370, reference was made to the decision of Morden ACJO in the Ontario Court of Appeal in R v Stroempl (1995) 105 CCC (3d) 187 at 191 in which it was held that: -…
R v Reyes
[2005] NSWCCA 218

…Doan (2000) 50 NSWLR 115 R v Fidow [2004] NSWCCA 172 R v Gent [2005] NSWCCA 370 R v King [2004] NSWCCA 444 R v Oliver [2003] 1 Cr App R 28 R v Reyes [2005] NSWCCA 218 R v Saddler [2008] NSWDC 48 R v Thomson; R Houlton (2000) 49 NSWLR 383 R v Stambolis [2006] NSWCCA 56 R v Stroempl (1995) 105 CCC (3d) 187 R v Way (2…
R v Fidow
[2004] NSWCCA 172

…9] NSWCCA 89 R v Borkowski [2009] NSWCCA 102 R v Crump (unreported, 30/5/94, NSWCCA) R v Dib [2003] NSWCCA 117 R v Doan (2000) 50 NSWLR 115 R v Fidow [2004] NSWCCA 172 R v Gent [2005] NSWCCA 370 R v King [2004] NSWCCA 444 R v Oliver [2003] 1 Cr App R 28 R v Reyes [2005] NSWCCA 218 R v Saddler [2008] NSWDC 48 R v Tho…
R v Way
[2004] NSWCCA 131 Para 1

…. The significance of this point is that when maximum penalties are raised, this is an indication that higher penalties should be imposed. In R v Way (2004) 60 NSWLR 168 at [52], the Court held that: -…
R v Dib
[2003] NSWCCA 117 Para 1

…ntly, any discount to be applied on sentence is to be reduced accordingly. This applies in circumstances where there has been a plea bargain: R v Dib [2003] NSWCCA 117 and R v Boney [2008] NSWCCA 313, or where an offender waits to see what charges are ultimately brought by the Crown: Sullivan v R; Skillin v R [2008]…
R v Doan
[2003] NSWSC 345 Para 1

…imprisonment. The matter presently under consideration is one to which the principles enunciated in the Court of Criminal Appeal decision of R v Doan (2000) 50 NSWLR 115 (per Grove J at [35]) apply such that sentence is imposed according to the gravity of the offences by reference to the statutory maximum, not the jur…
R v Zamagias
[2002] NSWCCA 17 Para 1

…jective gravity of the offence and balance that finding against the subjective circumstances of the offender. The decision of Howie J in R v Zamagias [2002] NSWCCA 17 at [23] is authority for the proposition that it is the first of these considerations that will determine, essentially, which of the available senten…
R v Thomson; R v Houlton
[2000] NSWCCA 383 Para 1

…[2008] NSWCCA 296. Having regard to s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and the principles enunciated in R v Thomson; R Houlton (2000) 49 NSWLR 383, R v Stambolis [2006] NSWCCA 56 and R v Borkowski [2009] NSWCCA 102 , I take into account the plea of guilty and I allow a 20% discount for the utili…
Mill v The Queen
[1988] HCA 70 Para 1

…lation to the offence for which it is imposed ... [and] to review the aggregate sentence" to determine whether it is 'just and appropriate': Mill v R (1988) 166 CLR 59 at [63].…
R v De Simoni
[1981] HCA 31

…ay (2004) 60 NSWLR 168 R v Zamagias [2002] NSWCCA 17 Sinkovich v R [2011] NSWCCA 90 Sullivan v R; Skillin v R [2008] NSWCCA 296 The Queen v De Simoni (1981) 147 CLR 383 Wright v R [2006] NSWCCA 122 Category: Sentence Parties: NSW Police Force (Prosecuting Authority) Sidney Lee Burchett (Offender) Representation: Mr P…
R v Bloomfield
[1998] NSWSC 342 Para 1

…A more comprehensive list was enunciated by Spigelman CJ in R v Bloomfield (1998) 44 NSWLR 734 (with Sully and Ireland JJ in agreement). What must be borne in mind when considering a particular sentence are the specific findings as to objective seriousness of the offence and culpability of the offender, rather than a co…

Legislation cited in this decision · 6

Criminal Procedure Act 1986 (NSW)
260, 267, 289A, 289B 9 mentions (from Para 1)
Crimes (Sentencing Procedure) Act 1999 (NSW)
21A, 22, 44, 5, 58 6 mentions (from Para 1)
Crimes Act 1900 (ACT)
91FA, 91FB, 91H 4 mentions (from Para 1)
Crimes Act 1914 (Cth)
1 mention
Crimes Amendment (Child Pornography and Abuse Material) Act 2010 (NSW)
1 mention (from Para 1)
Crimes Amendment (Sexual Offences) Act 2008 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	Police v Sidney Lee Burchett [2011] NSWLC 15
Hearing dates:	20/04/2011
Decision date:	27 May 2011
Jurisdiction:	Criminal
Before:	Magistrate Tsavdaridis
Decision:	1. Sequence 1 Disseminating child pornography The offender is convicted and sentenced to a term of imprisonment of 2 years commencing on 27 May 2011 and expiring on 26 May 2013 with a non-parole period of 14 months commencing on 27 May 2011 and expiring on 26 July 2012 and a balance of term from 27 July 2012 to 26 May 2013. 2. Sequence 2 Possessing child pornography The offender is convicted and sentenced to a term of imprisonment of 2 years commencing on 27 August 2011 and expiring on 26 August 2013 with a non-parole period of 14 months commencing on 27 August 2011 and expiring on 26 October 2012 and a balance of term from 27 October 2012 to 26 August 2013. 3. Sequence 3 Possessing child pornography The offender is convicted and sentenced to a term of imprisonment of 2 years commencing on 27 August 2011 and expiring on 26 August 2013 with a non-parole period of 14 months commencing on 27 August 2011 and expiring on 26 October 2012 and a balance of term from 27 October 2012 to 26 August 2013.
Catchwords:	CRIMINAL LAW - Child pornography - Disseminate child pornography - Chat logs forming basis of dissemination charge - Possess child pornography - Sentencing principles
Legislation Cited:	Crimes Act 1900 (NSW), ss 91H, 91FA, 91FB Criminal Procedure Act 1986 (NSW), ss 260, 267, 289A, 289B Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A, 22, 44, 58
Cases Cited:	Cahyadi v R [2007] NSWCCA 1 Han v R [2009] NSWCCA 300 Hejazi v R [2009] NSWCCA 282 Mill v R (1988) 166 CLR 59 Minehan v R [2010] NSWCCA 140 R v Bloomfield (1998) 44 NSWLR 734 R v Boney [2008] NSWCCA 313 R v Booth [2009] NSWCCA 89 R v Borkowski [2009] NSWCCA 102 R v Crump (unreported, 30/5/94, NSWCCA) R v Dib [2003] NSWCCA 117 R v Doan (2000) 50 NSWLR 115 R v Fidow [2004] NSWCCA 172 R v Gent [2005] NSWCCA 370 R v King [2004] NSWCCA 444 R v Oliver [2003] 1 Cr App R 28 R v Reyes [2005] NSWCCA 218 R v Saddler [2008] NSWDC 48 R v Thomson; R Houlton (2000) 49 NSWLR 383 R v Stambolis [2006] NSWCCA 56 R v Stroempl (1995) 105 CCC (3d) 187 R v Way (2004) 60 NSWLR 168 R v Zamagias [2002] NSWCCA 17 Sinkovich v R [2011] NSWCCA 90 Sullivan v R; Skillin v R [2008] NSWCCA 296 The Queen v De Simoni (1981) 147 CLR 383 Wright v R [2006] NSWCCA 122
Category:	Sentence
Parties:	NSW Police Force (Prosecuting Authority) Sidney Lee Burchett (Offender)
Representation:	Mr P Lowe (for Offender) Mr Drabe (for NSW Police Force)
File Number(s):	2010/230812