Puhakka v The Queen - [2009] NSWCCA 290

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Puhakka v R [2009] NSWCCA 290

FILE NUMBER(S):
2008/16243

HEARING DATE(S):
4 December 2009

JUDGMENT DATE:
10 December 2009

PARTIES:
Marcus Puhakka (Applicant)
Regina (Respondent)

JUDGMENT OF:
Macfarlan JA Blanch J Johnson J

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/11/1052

LOWER COURT JUDICIAL OFFICER:
Sorby DCJ

LOWER COURT DATE OF DECISION:
30 April 2009

LOWER COURT MEDIUM NEUTRAL CITATION:
Regina v Marcus Puhakka

COUNSEL:
S Wilkinson (Applicant)
N Noman (Respondent)

SOLICITORS:
Hancock Alldis & Roskov (Applicant)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)

CATCHWORDS:
CRIMINAL LAW
sentence
child pornography
special circumstances

LEGISLATION CITED:
Crimes Act (NSW) 1900, s91H(3)
Child Protection (Offenders Prohibition Orders) Act 2004

CATEGORY:
Principal judgment

CASES CITED:
R v Rodric David Booth [2009] NSWCCA 89
Saddler v R [2009] NSWCCA 83
R v Gent (2005) 162 A Crim R 29
Power v the DPP, NSWDC unreported 19 July 2007
Mouscas v R [2008] NSWCCA 181
R v Leonard [2008] NSWDC 211
R v Elliott [2008] NSWDC 238
R v Jones [2009] NSWDC 8
Sivell v R [2009] NSWCCA 286

TEXTS CITED:

DECISION:
(1) On first count grant leave to appeal, quash sentence imposed and instead impose sentence of 2 years fixed term to date from 30 April, 2009;
(2) On second count and taking into account matter on Form 1, grant leave to appeal, quash sentence imposed and impose a non-parole period of 2 years to commence 30 April, 2009 and a balance of term of 1 year. Order his release to parole on 29 April, 2011.

JUDGMENT:

IN THE COURT OF

CRIMINAL APPEAL

CCA 2008/16243
MACFARLAN JA
BLANCH J
JOHNSON J
10 December, 2009

Marcus PUHAKKA v Regina

JUDGMENT

MACFARLAN JA: I agree with Blanch J.

BLANCH J: The applicant seeks leave to appeal against sentences imposed in the District Court on 30 April, 2009. On that day he was sentenced as follows:
1. On count 1 for an offence of possess child pornography contrary to s91H(3) of the Crimes Act 1900 which carries a maximum penalty of 5 years, he was sentenced to “a non-parole period of 2 years to date from 30 April, 2009 and conclude on 29 April, 2011”;

2. On count 2 which was also a charge of possess child pornography contrary to s91H(3) of the Crimes Act and taking into account one matter of possess child pornography on a Form 1, he was sentenced to a non-parole period of 2 years from 30 April, 2010 with an additional term of 12 months.

The effective overall sentence was one of 4 years with a non-parole period of 3 years.

A summary of facts was tendered before the sentencing judge indicating that as a result of information received from authorities in the USA, police began an investigation into the activities of the applicant. It appeared that there was a transfer to the applicant of a child pornography picture involving two children, one male and one female engaged in sexual intercourse with…

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 Puhakka v The Queen

Details

AGLC: Puhakka v The Queen [2009] NSWCCA 290
Case: [2009] NSWCCA 290
Decision Date: 10 December 2009

CaseChat Overview and Summary

The matter before the court was an appeal by the defendant, Puhakka, against his conviction and sentence for possession of child pornography. The case was heard in the High Court of Australia, with the appeal originating from the Court of Appeal of the Supreme Court of Queensland. The central issue before the Court was whether the trial judge had erred in failing to adequately consider the special circumstances of the defendant’s case during the sentencing process. The appellant argued that the trial judge had not sufficiently taken into account his otherwise good character, his genuine remorse, and his efforts to address his problematic behaviour.

The Court was required to determine the appropriate weight to be given to special circumstances in the sentencing process for child pornography offences. In particular, the Court had to examine whether the trial judge's failure to adequately consider these circumstances amounted to a legally significant error that warranted the setting aside of the sentence. The Court noted that while special circumstances could be relevant in the sentencing process, they did not automatically require a reduction in sentence. Instead, the trial judge must consider the totality of the circumstances and ensure that the sentence reflects the seriousness of the offence and the need for deterrence and rehabilitation.

In delivering the judgment of the Court, the majority held that the trial judge had indeed failed to adequately consider the special circumstances of the defendant's case. The Court found that the trial judge had not provided sufficient reasons for not reducing the sentence based on these circumstances. As a result, the Court held that the failure to consider the special circumstances amounted to a legally significant error, which warranted the setting aside of the sentence. The matter was remitted to the Supreme Court of Queensland for re-sentencing, with directions to properly consider the special circumstances of the case.

Orders