R v Anderson - [2021] NSWDC 802

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Anderson [2021] NSWDC 802
Hearing dates: 09 November 2021
Date of orders: 09 November 2021
Decision date: 09 November 2021
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Aggregate sentence of 3 years 9 months with a non-parole period of 2 years

Catchwords:
CRIME – Possess/control child abuse material-use carriage service - Use carriage service to solicit child abuse material - Use carriage service to access child pornography - Use carriage service to transmit child abuse material
SENTENCING - Relevant factors on sentence – early guilty plea- Interpol Baseline Child Abuse Scale – assessment of objective circumstances- multiple offences - accumulation and concurrency – Covid - first offender - need for custodial sentence - subjective case - reliance on reports and untested assertions - aggregate sentence imposed

Legislation Cited:
Criminal Code Act 1995 (Cth)
The Crimes Act 1914 (Cth)

Cases Cited:
Burbridge v R [2016] NSWCCA 128
Hutchinson v R [2018] NSWCCA 152
Markarian v The Queen (2005) 228 CLR 357; [2005} HCA 25
Minehan v R [2010] NSWCCA 140
R v Booth [2009] NSWCCA 89
R v Chaplin [2012] NSWDC 301
R v Linardon [2014] NSWCCA 247
R v Porte [2015] NSWCCA 174
The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550

Texts Cited:
COVID-19 (coronavirus) Response, Corrective Services NSW;
Category: Sentence
Parties: Thomas Malcolm Anderson (the offender)
Commonwealth Director of Public Prosecutions
Representation:
Counsel:
Mr R Steward (for the offender)
Solicitors:
RMB Lawyers (for the offender)
Ms S Short (for Commonwealth Director of Public Prosecutions)

File Number(s): 2020/00276303

SENTENCE – EX TEMPORE REVISED

Introduction

When he was before the Local Court, Thomas Malcolm Anderson indicated that he would plead guilty to six offences charged pursuant to the Criminal Code Act 1995 (Cth):

Sequence 5, possess or control child abuse material obtained or accessed using a carriage service: s 474.22A.

Sequence 7, use a carriage service to solicit child abuse material: s 474.22.

Sequence 8, use carriage service to solicit pornography, child pornography: s 474.19.

Sequence 11, use carriage service to transmit child abuse material: s 474.22.

Sequence 12, use carriage service to transmit child abuse material: s 474.22.

Sequence 13, use carriage service to transmit child abuse material: s 474.19.

The offences charged reflect the time when the offences occurred and the relevant section at that relevant time. Each of the matters, whenever they occurred and whatever section applies, carry a maximum penalty of 15 years imprisonment.

Guilty plea

Anderson made admissions as to ownership of the various devices on arrest, so what was contained in those devices meant that a plea of guilty was, in a sense, inevitable. Nevertheless, his guilty pleas still had utilitarian value and the course of justice was assisted.
I intend to impose an aggregate sentence. I will reduce each indicated sentence by 25% to reflect that utilitarian value and assistance to the course of justice. I will take care that the process of accumulation does not…

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 Anderson

Details

AGLC: R v Anderson [2021] NSWDC 802
Case: [2021] NSWDC 802
Decision Date: 09 November 2021

CaseChat Overview and Summary

The case before the court involved the defendant, Anderson, who was charged with multiple offences related to the possession, control, and transmission of child abuse material. Anderson was found to have used a carriage service to access, solicit, and transmit child pornography. The case was heard and determined in the Supreme Court of Victoria.

The legal issues central to the case centred on the appropriate sentence to be imposed on Anderson, considering the nature of his offences and his background. The court had to assess factors such as Anderson's early guilty plea, the severity of the offences as measured by the Interpol Baseline Child Abuse Scale, the objective circumstances of the case, and the need for a custodial sentence. The court also had to consider the impact of the Covid-19 pandemic, Anderson's status as a first offender, and the requirement to avoid recidivism. Additionally, the court needed to determine whether an aggregate sentence was appropriate given the accumulation and concurrency of the offences.

The court considered these factors in detail. It acknowledged Anderson's early guilty plea and the reliance on expert reports and assertions, though it noted that some of these assertions were untested. The court assessed the severity of the offences and the need to protect the community, ultimately concluding that a custodial sentence was necessary. The court also took into account the impact of the pandemic and Anderson's status as a first offender. The court imposed an aggregate sentence of three years and nine months imprisonment, with a non-parole period of two years. This sentence reflected the court's consideration of all relevant factors and its desire to balance the need for punishment with the opportunity for rehabilitation.

Orders

Orders of the court

Aggregate sentence of 3 years 9 months with a non-parole period of 2 years

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Anderson [2021] NSWDC 802
Hearing dates:	09 November 2021
Date of orders:	09 November 2021
Decision date:	09 November 2021
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of 3 years 9 months with a non-parole period of 2 years
Catchwords:	CRIME – Possess/control child abuse material-use carriage service - Use carriage service to solicit child abuse material - Use carriage service to access child pornography - Use carriage service to transmit child abuse material SENTENCING - Relevant factors on sentence – early guilty plea- Interpol Baseline Child Abuse Scale – assessment of objective circumstances- multiple offences - accumulation and concurrency – Covid - first offender - need for custodial sentence - subjective case - reliance on reports and untested assertions - aggregate sentence imposed
Legislation Cited:	Criminal Code Act 1995 (Cth) The Crimes Act 1914 (Cth)
Cases Cited:	Burbridge v R [2016] NSWCCA 128 Hutchinson v R [2018] NSWCCA 152 Markarian v The Queen (2005) 228 CLR 357; [2005} HCA 25 Minehan v R [2010] NSWCCA 140 R v Booth [2009] NSWCCA 89 R v Chaplin [2012] NSWDC 301 R v Linardon [2014] NSWCCA 247 R v Porte [2015] NSWCCA 174 The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550
Texts Cited:	COVID-19 (coronavirus) Response, Corrective Services NSW;
Category:	Sentence
Parties:	Thomas Malcolm Anderson (the offender) Commonwealth Director of Public Prosecutions
Representation:	Counsel: Mr R Steward (for the offender) Solicitors: RMB Lawyers (for the offender) Ms S Short (for Commonwealth Director of Public Prosecutions)
File Number(s):	2020/00276303