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Prior v Malogorski [2005] NTSC 52

PARTIES: RODERICK CHARLES PRIOR

MARK ANTHONY MALOGORSKI

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction

FILE NO: JA 45/05 (20428920)

DELIVERED: 14 September 2005

HEARING DATES: 9 September 2005

JUDGMENT OF: THOMAS J

CATCHWORDS:

REPRESENTATION:

Counsel:
Appellant: M Johnson
Respondent: S Geary

Solicitors:
Appellant: Geoff James
Respondent: Office of the Director of Public Prosecutions

Judgment category classification: C
Judgment ID Number: tho200506
Number of pages: 11

IN THE SUPREME COURT OF THE NORTHERN TERRITORY
OF AUSTRALIA AT DARWIN

Prior v Malogorski [2005] NTSC 52
No. JA 45/05 (20428920)

BETWEEN:

RODERICK CHARLES PRIOR
Appellant

AND:

MARK ANTHONY MALOGORSKI
Respondent

CORAM: THOMAS J

REASONS FOR JUDGMENT

(Delivered 14 September 2005)

[1] This is an appeal from a decision of a magistrate imposed in the Court of Summary Jurisdiction on 18 August 2005.

[2] On that date the appellant entered a plea of guilty to a charge that on 16 December 2004 did possess child pornography contrary to s 125B(1)(a) of the Criminal Code.

[3] Following submissions by counsel for the appellant and the respondent, the learned stipendiary magistrate convicted the appellant and imposed a sentence of six months imprisonment suspended after two months. The operative period set was two years.

[4] The facts in support of the charge, which were admitted before the learned stipendiary magistrate, are as follows:
“… the defender was the head engineer for the Hot 100 radio station situated at 4 Peary Street, Darwin City. The defender is now unemployed having been sacked of his duties due to prosecution.

At 5:20 pm 25 June 2004, using a work computer situated in the offenders office within the Hot 100 building, the offender accessed the internet by the company internet hub. After accessing a free web site the offender downloaded an image depicting a pre-pubescent female posing naked and intentionally saved this image on the hard drive of his work computer.

The file was saved to the following file path; c/documents/settings/rodmydocuments/mypictures over the next six months the offender used his work computer and the internet to access various free web sites whereby he downloaded and intentionally saved a number of images of pre-pubescent females all posing naked. Each of these saved images were saved on the hard drive within the same above file path.

On 16 December 2004 the management of the radio station conducted an audit of the offenders computer and located an image which depicted a pre-pubescent female posing and contacted the police.

The computer hard drive was seized by police and interrogated whereby a total of 119 child abuse images were located, each depicting pre-pubescent females aged between about 8 and 14 years of age. All images have been categorized at level 1 accept for two images which are level 2.
On 17 December 2004 the offender was arrested at his home, and later interviewed, he admitted to downloading the…

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 Prior v Malogorski

Details

AGLC: Prior v Malogorski [2005] NTSC 052
Case: [2005] NTSC 52
Decision Date: 14 September 2005

CaseChat Overview and Summary

In this case, Roderick Charles Prior, the appellant, appealed against a decision made by a magistrate in the Court of Summary Jurisdiction, where he was convicted and sentenced for possessing child pornography. The respondent, Mark Anthony Malogorski, represented the state. The appeal was heard in the Supreme Court of the Northern Territory, exercising its Territory jurisdiction. The central issue before the court was whether the sentence imposed by the magistrate was manifestly excessive or inadequate, considering the appellant's grounds of appeal. The appellant argued that the magistrate placed too much emphasis on the increased penalties provided by the Criminal Code Amendment (Child Abuse Material) Act 2004 and that the sentence was manifestly excessive.

The court examined the facts of the case and the arguments presented by both counsel. It noted that the appellant had downloaded and saved numerous child abuse images on his work computer over a period of six months. The court observed that while the images were not of the most extreme category, they still depicted the sexual exploitation of children. The court also considered the appellant's background, character references, and the impact of the offence on his life. The court concluded that the magistrate had appropriately considered the aggravating factors of the offence and the mitigating factors presented by the appellant. The court found that the sentence imposed was not manifestly excessive or inadequate, and therefore dismissed both grounds of appeal. The appeal was ultimately dismissed, and the original sentence stood.

Orders