R v AG

Case [2024] NSWDC 536 12 April 2024

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District Court

New South Wales

Medium Neutral Citation: R v AG [2024] NSWDC 536
Hearing dates: 3 November 2023
Date of orders: 12 April 2024
Decision date: 12 April 2024
Jurisdiction: Criminal
Before: Allen DCJ
Decision:
Sentenced – see [141]-[147]

Catchwords:
CRIMES – Sentence – possess/control child abuse material use carriage service.
CRIMES – Sentence – use carriage service transmit/publish/promote child abuse.
CRIMES – Sentence – bestiality.
CRIMES – Sentence – person possesses bestiality material – use carriage service to menace/harass/offend – Form 1 matters

Legislation Cited:
Crimes Act, 1914 (Cth)
Crimes (Sentencing Procedure) Act, 1999
Criminal Code Act, 1995 (Cth)

Cases Cited:
R v Dawson [2022] NSWSC 1632
R v Pham (2015) 256 CLR 550
Elias v The Queen (2013) 248 CLR 483
Chesworth v R [2023] NSWCCA 115

Texts Cited:
Nil

Category: Principal judgment
Parties: Rex
AG
Representation: Counsel:
Mr Brown for the Commonwealth Crown
Ms Kluss for the Offender
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
RHALAW (Offender)

File Number(s): 2022/242412
Publication restriction: Yes (interim order s 8(1)) Court Suppression and Non-publication Orders Act 2010

REMARKS ON SENTENCE

AG (the offender) was born on 13 October 1981. He is now 42 years old. At the time of the offences (between 19 May and 16 August 2022), he was 40.
On 21 April 2023 the offender pleaded guilty before the Local Court at Penrith to the following offences:

Sequence 1 - "on 16 August 2022 at a Hebersham in NSW, did possess or control material, being child abuse material, in the form of data held in a computer or contained in a data storage device and used a carriage service to obtain or access the material."

Sequence 3 - "Between 21 and 22 July 2022 at Hebersham in NSW, transmitted material to "Chris", using a carriage service, the material being child abuse material."

Sequence 4 - "On 3 July 2022 at Hebersham in NSW, transmitted material to "M", using a carriage service, the material being child abuse material."

Sequence 5 - "Between 19 May and 3 July 2022 at Hebersham in NSW, transmitted material to "Hey", using a carriage service, the material being child abuse material."

Sequence 6 - "On 3 July 2022 at Hebersham in NSW, did commit an act of bestiality with an animal, to wit, a dog, as principal in the second degree."

Sequence 8 - "On 14 July 2022 at Hebersham in NSW, transmitted material to "Kim Hawes", using a carriage service, the material being child abuse material."

Sequence 1 is an offence contrary to s 474.22A(1) of the Criminal Code Act 1995 (Cth) and carries a maximum penalty upon conviction of 15 years imprisonment. Sequences 3, 4, 5, and 8 are contrary to s 474.22(1) of the Criminal Code Act 1995 (Cth) and also attract a maximum penalty upon conviction of 15 years imprisonment (the federal offences).
Sequence 6 (the State offence) is an offence contrary to ss 79 and 345 of the Crimes Act NSW…

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 R v AG

Details

AGLC: R v AG [2024] NSWDC 536
Case: [2024] NSWDC 536
Decision Date: 12 April 2024

CaseChat Overview and Summary

The case before the court involved the defendant, who was charged with multiple offences including possession of child abuse material, using a carriage service to transmit such material, promoting the use of a carriage service to access child abuse material, bestiality, and possession of material depicting bestiality with intent to menace, harass, or offend. The defendant pleaded guilty to all charges. The court was tasked with determining the appropriate sentence for the defendant, considering the severity and nature of the crimes committed.

The legal issues before the court were primarily concerned with the appropriate sentencing for the defendant's crimes. This included assessing the impact and gravity of the offences, the defendant's culpability, and the need for deterrence and rehabilitation. The court also had to consider the aggravating and mitigating factors present in the case. The court was required to balance the need to punish the defendant with the goal of rehabilitation and the protection of the community.

The court carefully considered the evidence and submissions from both parties. The court acknowledged the serious nature of the offences, particularly the involvement of child abuse material and bestiality. The court emphasised the need for a sentence that reflected the gravity of the crimes and served as a deterrent to others. After evaluating the circumstances, the court imposed a sentence that was deemed appropriate to address the defendant's culpability, the impact on the victims, and the broader community. The court provided detailed reasons for the sentence, taking into account both aggravating and mitigating factors.

The court's final orders were detailed in the judgement, with sentences specified in paragraphs [141] to [147]. The defendant was sentenced accordingly, reflecting the seriousness of the crimes and the need for appropriate punishment and deterrence.

Orders

Orders of the court

Sentenced – see [141]-[147]

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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Actions

Citations

R v AG [2024] NSWDC 536

Cases Citing This Decision

No citing cases yet.

Cases Cited

Chesworth v The King [2023] NSWCCA 115
Citation 1 (Para 62)

…In Chesworth v R [2023] NSWCCA 115 Rothman J (with whom Wilson and Yehia JJ agreed) said of bestiality offences:…
R v Dawson [2022] NSWSC 1632
Citation 2 (Para 8)

…ing, relevant common law principles, the Crimes Act (Cth) and the Crimes (Sentencing Procedure) Act 1999 NSW. As observed by Harrison J in R v Dawson [2022] NSWSC 1632 at [10],…
SF v R [2022] NSWCCA 216
Citation 3 (Para 127)

…ender has spent in custody to date remains a significant factor in the sentencing exercise. It was submitted that the principles enunciated in SF v R [2022] NSWCCA 216 (7 October 2022) in respect to the hardship and isolation caused to inmates by the pandemic have some application. Whilst it was implicit in this sub…
Lloyd v R [2022] NSWCCA 18
Citation 4 (Para 107)

…upon which the offender is to be sentenced. I am also mindful of what was stated by McCallum J (with whom Hamill and Cavanagh JJ agreed) in Lloyd v R [2022] NSWCCA 18 at [43] - [47]. Ultimately the evidence to be relied upon in sentencing an offender is a matter for the determination of the sentencing judge. Whilst…
R v Hutchinson [2018] NSWCCA 152
Citation 5 (Para 57)

…31. In R v Hutchinson [2018] NSWCCA 152, a list of factors relevant to the assessment of objective seriousness in respect to offences of possess and produce child abuse material were set out. They are:…
Brownlie v Murray [2018] NSWCA 4
Citation 6 (Para 4)

…he court must also have regard to the utilitarian or objective value of a guilty plea, even in the absence of any subjective value ( Xiao v The Queen [2018] NSWCA 4 at [269]-[278]).…
Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
Citation 7 (Para 119)

…es, I am entitled to deal with them in this way: I refer to the autohirty of Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301 at [141]-[146]. What I cannot do is aggregate both the federal offences and the State offence within a single sentence. Accordingly, because I intend…
Imbornone v R [2017] NSWCCA 144
Citation 8 (Para 106)

…proceedings, and therefore the veracity or reliability of his accounts could not be tested by cross-examination. The Crown referred to Imbornone v R [2017] NSWCCA 144 and R v Qutami [2001] NSWCCA 353. The Crown submitted that the self-reports of the offender, where he seeks to mitigate culpability without being pro…
DPP (Cth) v Haynes [2017] VSCA 79
Citation 9 (Para 130)

…each of the offences, and comparable cases, the only appropriate sentence is a period of full-time imprisonment with a non-parole period: R v Haynes [2017] VSCA 79.…
DPP (Cth) v Garside [2016] VSCA 74
Citation 10 (Para 114)

…ons asserted that the court would be guarded at best as to the offender's future prospects. The Crown referred to the decision of DPP (Cth) v Garside [2016] VSCA 74 at [63] where the Victorian CA said:…
R v Pham [2015] HCA 39
Citation 11 (Para 12)

…in sentencing for the Commonwealth offences to seek to achieve consistency, and to have regard to sentencing practices throughout Australia: R v Pham (2015) 256 CLR 550 at [18]. The consistency sought is in the application of relevant legal principles, rather than in the numerical equivalence of sentences, and I have…
R v Porte [2015] NSWCCA 174
Citation 12 (Para 58)

…In R v Porte [2015] NSWCCA 174 at [66]-[72], the CCA added to these principles the following considerations:…
Elias v The Queen [2013] HCA 31
Citation 13 (Para 15)

…er's subjective circumstances. As a result, there is no such thing as a single correct sentence. As emphasised by the High Court in Elias v The Queen (2013) 248 CLR 483 at [27]:…
R v Smith [2010] QCA 220
Citation 14 (Para 1)

…Steps taken by the offender towards rehabilitation should be considered on sentence ( R v Smith [2010] QCA 220 at [18]), as one amongst several important sentencing considerations and should not be given focus at the expense of other important sentencing considerations, such as general deterrence and denunciation…
R v Booth [2009] NSWCCA 89
Citation 15 (Para 56)

…General deterrence is a paramount consideration for offences involving child abuse/child pornography material. In R v Booth [2009] NSWCCA 89 at [40] Simpson J said:…
R v Gajjar [2008] VSCA 268
Citation 16 (Para 116)

…sarily follows at least in a relative sense that less weight will be accorded to what might otherwise be significant mitigating factors: ( R v Gajjar [2008] VSCA 268 at [27] - [28]). In the present case it is uncontroversial that the offender had historically lived a relatively pro social life. Upon leaving school…
Cahyadi v R [2007] NSWCCA 1
Citation 17 (Para 122)

…Court to impose an aggregate sentence for the federal offences, and the Court would consider the question of totality in accordance with Cahyadi v R [2007] NSWCCA 1 at [27].…
Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518
Citation 18 (Para 81)

…tlement to retribution for this additional offence (see Atty Gen's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999, No 1 of 2002 [2002] NSWCCA 518 at [42]). In respect to the s 16BA Schedule arrangement, greater weight may be afforded to both personal deterrence and retribution by virtue of the…
Cameron v the Queen [2002] HCA 6
Citation 19 (Para 2)

…e value as evidence of genuine contrition, acceptance of responsibility and/or a willingness to facilitate the course of justice (Cameron v The Queen (2002) 209 CLR 339 at [343]).…
R v Qutami [2001] NSWCCA 353
Citation 20 (Para 106)

…eracity or reliability of his accounts could not be tested by cross-examination. The Crown referred to Imbornone v R [2017] NSWCCA 144 and R v Qutami [2001] NSWCCA 353. The Crown submitted that the self-reports of the offender, where he seeks to mitigate culpability without being properly tested by cross-examination…
Pearce v The Queen [1998] HCA 57
Citation 21 (Para 121)

…e sentence appropriate for each offence separately and then turn to questions of concurrency/accumulation and issues of totality ( Pearce v The Queen (1998) 194 CLR 610 at [47]). The Crown submitted the Court should have regard to the presumption in favour of cumulative sentences when sentencing an offender for multi…

Legislation Cited

Crimes Act 1914 (Cth)
2 mentions (from Para 6)
Court Suppression and Non-publication Orders Act 2010 (NSW)
1 mention
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 6)
Criminal Code Act 1995 (Cth)
1 mention (from Para 3)
Sentencing Procedure Act 1999 (NSW)
1 mention (from Para 124)

Medium Neutral Citation:	R v AG [2024] NSWDC 536
Hearing dates:	3 November 2023
Date of orders:	12 April 2024
Decision date:	12 April 2024
Jurisdiction:	Criminal
Before:	Allen DCJ
Decision:	Sentenced – see [141]-[147]
Catchwords:	CRIMES – Sentence – possess/control child abuse material use carriage service. CRIMES – Sentence – use carriage service transmit/publish/promote child abuse. CRIMES – Sentence – bestiality. CRIMES – Sentence – person possesses bestiality material – use carriage service to menace/harass/offend – Form 1 matters
Legislation Cited:	Crimes Act, 1914 (Cth) Crimes (Sentencing Procedure) Act, 1999 Criminal Code Act, 1995 (Cth)
Cases Cited:	R v Dawson [2022] NSWSC 1632 R v Pham (2015) 256 CLR 550 Elias v The Queen (2013) 248 CLR 483 Chesworth v R [2023] NSWCCA 115
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Rex AG
Representation:	Counsel: Mr Brown for the Commonwealth Crown Ms Kluss for the Offender Solicitors: Commonwealth Director of Public Prosecutions (Crown) RHALAW (Offender)
File Number(s):	2022/242412
Publication restriction:	Yes (interim order s 8(1)) Court Suppression and Non-publication Orders Act 2010