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R v Aniezue

R v Aniezue

Case [2016] ACTSC 82 11 April 2016

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Aniezue
Citation:	[2016] ACTSC 82
Hearing Date:	5 April 2016
DecisionDate:	11 April 2016
Before:	Refshauge J
Decision:	1. Arinze Aniezue is convicted of using of using a carriage service to transmit indecent communications to a person whom you believe to be under the age of 16 years (XO 16/3). 2. Arinze Aniezue is sentenced to 10 months imprisonment, to commence on 12 November 2015, to take into account pre-sentence custody. 3. Arinze Aniezue be released forthwith upon giving security by recognizance in the sum of $500 with a condition that he be of good behaviour for 18 months and that he, for that period or such lesser period as the person supervising him considers appropriate, be on probation; that is, to be under the supervision of the Director-General or her delegate.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentencing – using a carriage service to transmit indecent communications to a person under the age of 16 years – Facebook messages – principles in indecent communications cases CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentencing – extra curial punishment– ‘unlawful non-citizen’ – deportation imminent CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentencing – backdating of sentence – immigration detention – custody ‘in relation to the offence’ – ‘in relation to’ – detention a consequence of offending
Legislation Cited:	Crimes Act 1914 (Cth) Crimes (Sentencing) Act 2005 (ACT), ss 7, 63 Family Law Act 1975 (Cth) Judiciary Act1903 (Cth), s 68 Migration Act 1958 (Cth), Criminal Code 1995 (Cth), s 474.27A
Cases Cited:	Cameron v The Queen (2002) 209 CLR 339 Da Costa Junior v The Queen [2016] VSCA 49 Einfeld v The Queen (2010) 266 ALR 598 Gordon (1994) 71 A Crim R 459 Guden v The Queen (2010) 28 VR 288 In the Marriage of Aldred (1984) 9 Fam LR 539 Islam v The Queen [2014] ACTCA 2 Konamala v The Queen [2016] VSCA 48 O'Grady v The Northern Queensland Company Ltd (1990) 169 CLR 356 Perlman v Perlman (1984) 155 CLR 474 Rosser v Donges [1990] 1 Qd R 490 R v Asplund (2010) 216 A Crim R 48 R v Budd (Unreported, District Court of New South Wales, Charteris DCJ, 2 October 2007), R v De Simoni (1981) 147 CLR 383 R v DF (No 2) (2012) 257 FLR 31 R v Fearne [2014] ACTSC 172 R v Harris (Unreported, District Court of Queensland, Farr SC DCJ, No 904 of 2014, 20 August 2014) R v Hutton (Unreported, Supreme Court of the Northern Territory, Barr J, SC 21403858, 19 June 2014) R v Llewellyn (Unreported, District Court of Queensland, Koppenol DCJ, 9 February 2012). R v Nahlous (2013) 228 A Crim R 503 R v Pham (2015) 325 ALR 400 R v Rivkin (2003) 198 ALR 400 R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 R…

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 Aniezue

Details

AGLC: R v Aniezue [2016] ACTSC 82
Case: [2016] ACTSC 82
Decision Date: 11 April 2016

CaseChat Overview and Summary

The court heard an appeal by Arinze Aniezue against a conviction for using a carriage service to transmit indecent communications to a person under the age of 16 years. The matter was before the Court of Appeal. The primary judge found the appellant guilty of using a carriage service to transmit indecent communications to a minor, and sentenced him to a term of imprisonment. The appellant appealed on the grounds that the primary judge erred in not granting him credit for time spent in immigration detention, and that the sentence was excessive. The appeal was dismissed.

The court was required to determine whether the appellant should receive credit for time spent in immigration detention and whether the sentence was appropriate. The court considered the relevant principles for sentencing in indecent communications cases, including the need to protect children from harmful communications and the deterrent effect of the sentence. The court also considered the extra-curial punishment of the appellant, who was an unlawful non-citizen with imminent deportation.

The court found that the primary judge did not err in not granting the appellant credit for time spent in immigration detention. The court found that the detention was not a consequence of the offending, but rather a consequence of the appellant’s unlawful presence in Australia. The court found that the sentence was appropriate, taking into account the seriousness of the offending and the need to protect children from harmful communications. The court found that the primary judge had adequately considered the relevant principles and had not erred in sentencing the appellant to a term of imprisonment. The appeal was dismissed.

The court made no orders varying the sentence of the appellant. The appellant remains convicted of using a carriage service to transmit indecent communications to a person under the age of 16 years and is subject to the sentence of 10 months imprisonment, to commence on 12 November 2015, to take into account pre-sentence custody.

Orders

Orders of the court

1. Arinze Aniezue is convicted of using of using a carriage service to transmit indecent communications to a person whom you believe to be under the age of 16 years (XO 16/3).

2. Arinze Aniezue is sentenced to 10 months imprisonment, to commence on 12 November 2015, to take into account pre-sentence custody.

3. Arinze Aniezue be released forthwith upon giving security by recognizance in the sum of $500 with a condition that he be of good behaviour for 18 months and that he, for that period or such lesser period as the person supervising him considers appropriate, be on probation; that is, to be under the supervision of the Director-General or her delegate.

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

R v Aniezue [2016] ACTSC 82

Most Recent Citation

Director of Public Prosecutions v Duc Le [2019] VCC 965

Cases citing this decision · 22 of 22 shown

Director of Public Prosecutions v Umunakwe (No 2)
[2025] ACTSC 139

…v Tasmania [2018] TASCCA 19 Magedi v The Queen [2019] VSCA 102 MT v R [2021] ACTCA 26; 17 ACTLR 22 Okwechime v The Queen [2023] ACTCA 233 R v Aniezue [2016] ACTSC 82 R v Aroub [2017] ACTSC 187…
Director of Public Prosecutions (Cth) v Divekar (a pseudonym)
[2024] VCC 2090

…Garside [2016] VSCA 74; Kristensen v R [2018] NSWCCA 189; Burton v R [2020] NSWCCA 127; William Edwards v R [2013] VSCA 188; R v Aniezue [2016] ACTSC 82; R v Pham (2015) 256 CLR 550; Bredal [2024] NSWCCA 75; R v Thompson [2019] QCA 245; Elliot v Harris (No 2) [1976] 13 SASR 516. Sentence:Seven months imprisonment…
Director of Public Prosecutions v Howe
[2024] ACTSC 178

…DPP v Padreny [2024] ACTCA 4 Imbornone v R [2017] NSWCCA 144 Johnston v R [2017] NSWCCA 53 Markarian v R [2005] HCA 25; 228 CLR 357 R v Aniezue [2016] ACTSC 82 R v Carmody (No 3) [2017] ACTSC 60 R v Daetz [2003] NSWCCA 216; 139 A Crim R 398 R v Edigarov [2001] NSWCCA 436; 125 A Crim R 551 R v EP (No 3) [2019] ACTS…
R v Swinton
[2023] NSWDC 126 Para 23

…(a) of that subsection refers to the nature and circumstances of the offences. As was noted in the Crown’s submissions, Refshauge J in R v Aniezue [2016] ACTSC 82 , set out, by reference to earlier case law, a number of factors relevant to assessing the seriousness of the type of offences before the Court. These…
Director of Public Prosecutions (Cth) v Bremner
[2023] VCC 51

…C 1651; DPP v Paul Bradley [2022] VCC 414; DPP v Latham [2009] TASSC 101; DPP v Smith [2010] VSCA 215; Mouscas v R [2008] NSWCCA 181; R v Aniezue [2016] ACTSC 82; R v Asplund (2010) 216 A Crim R 48; R v Booth [2009] NSWCCA 89; R v Cardwell [2021] QCA 112; R v Cashin [2016] ACTSC 351; R v Gajjar (2008) 192 A Crim R…
R v Ruwhiu
[2022] ACTSC 290 Para 1

…While, as noted in R v Aniezue [2016] ACTSC 82 at [63], the attitude of courts in Australia to the question of whether a person will be deported is relevant to sentence has not been uniform. It appears from that decision, followed in this Territory in other decisions of R v Butters [2019] ACTSC 143 and R v Igwebui…
R v Kember
[2022] ACTSC 153 Para 1

…that this offence falls below the mid-range of offending. In this context, the Crown referred to the factors summarised by Refshauge J in R v Aniezue [2016] ACTSC 82 at [33], with reference to the decision in Asplund to which I have already referred:…
R v Bower
[2022] ACTSC 382 Para 1

…ravated burglary was not proceeding. It seems to me necessary, accordingly, for a Notice Declining to Proceed to be filed for that count: R v Aniezue [2016] ACTSC 82 at [11]. It is arguable that it is not required where the accused has pleaded guilty to an alternative count (see R v Carmody [2016] ACTSC 382 at [46…
R v Whittaker
[2021] ACTSC 189 Para 1

…In relation to the transmission offence, I was referred to the somewhat comparable decision of R v Aniezue [2016] ACTSC 82, in which a sentence of 10 months’ imprisonment was imposed after a plea of guilty, at a time when the maximum penalty was seven years’ imprisonment. The facts were more serious than those in…
The Queen v Calica
[2021] NTSCFC 2

…e 1972), Muldrock v The Queen [2011] HCA 39, Norris v The Queen [2020] NTCCA 8, Ponniah v The Queen [2011] WASCA 105, R v Aniezue [2016] ACTSC 82, R v Arrowsmith [2018] SASCFC 47, R v Berlinsky [2005] SASC 316, R v Bob; ex parte A-G (Qld) [2003] QCA 129, R v Chapman (1971) 1 NSWLR 544, R v Chi Sun Tsui (1985) 1 NS…
The Queen v Wilkinson
[2021] VCC 675

…Sentencing Act 1991 (Vic) - Sex Offenders Registration Act 2004 (Vic) - Crimes Act 1914 (Cth) Cases Cited: R v Verdins (2007) 16 VR 269 - R v Aniezue [2016] ACTSC 82 - McNeice v The Queen [2019] VSCA 78 - DPP (Cth) v Walls [2014] VSCA 323. Sentence: Nine months' imprisonment to be released forthwith upon giving a…
R v Johnston
[2020] ACTSC 46 Para 1

…In R v Aniezue [2016] ACTSC 82 at [33] Refshauge J provided a useful non-exhaustive list of matters to be considered when assessing the seriousness of an offence under s 474.27A. They were:…
R v Champness
[2019] ACTSC 277 Para 1

…should have regard to the factors relevant to objective seriousness of an offence under s 474.27A(1) that were set out by Refshauge J in R v Aniezue [2016] ACTSC 82 ( Aniezue) at [33]:…
Director of Public Prosecutions v Duc Le
[2019] VCC 965

…Sentencing Act 1991; Crimes Act 1958 . Cases Cited: Guden v R [2010] VSCA 196; Tan & Ors v R [2011] VSCA 427; R v Mohamed [2016] VSC 581; R v Aniezue [2016] ACTSC 82; Konamala v R [2016] VSCA 48; R v Verdins & Ors (2007) 16 VR 269; Le v The Queen [2018] VSCA 309. Sentence: Total effective sentence of 2 years 6mont…
R v Butters
[2019] ACTSC 143

…[2014] ACTCA 46; 245 A Crim R 80 Power v The Queen (1974) 131 CLR 623 Quzag v The Queen (No 4) [2016] ACTCA 27 R v Amosa [2015] ACTSC 34 R v Aniezue [2016] ACTSC 82 R v Arrowsmith [2018] SASCFC 47; 333 FLR 415 R v Bandy [2018] ACTSC 261 R v Bartlett [2016] ACTSC 390 R v Beniamini (No 2) [2017] ACTSC 32 R v Burges…
R v Turner
[2019] NSWDC 206 Para 12

…The Commonwealth’s representative helpfully referred the court to the decision of R v Aniezue [2016] ACTSC 82 in which at [32] Refshauge J set out the factors to be considered in assessing the seriousness of an offence such as the one for which the offender appears for sentence. The factors include the nature of t…
Kristensen v R
[2018] NSWCCA 189

…CLR 601; [2014] HCA 37 Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8 Power v The Queen (1974) 131 CLR 623; [1974] HCA 26 R v Aniezue [2016] ACTSC 82 R v Arrowsmith [2018] SASCFC 47 R v Ellis (1986) 6 NSWLR 603 R v Girard [2004] NSWCCA 170 R v Glynatsis [2013] NSWCCA 131; (2013) 230 A Crim R 99 R v Jones [20…
R v Igwebuike
[2017] ACTSC 323 Para 1

…As to any other kind of extra-curial punishment, defence counsel referred to the case of R v Aniezue [2016] ACTSC 82, in which Refshauge J referred to the “two limbs” of the test for extra-curial punishment, being:…
R v HXY
[2017] QSC 108 Para 27

…Rosser v Donges [1990] 1 Qd R 490, 492 and the cases cited there. [14] See Perlman v Perlman (1984) 155 CLR 474, 483-484 and R v Aniezue [2016] ACTSC 82 at [73]-[75]. The role of s 11(1) of the Criminal Code…
R v Bartlett
[2016] ACTSC 390 Para 1

…In R v Aniezue [2016] ACTSC 82, I mentioned that the Internet has brought great benefits and prosperity to society but also has the capacity for the creation of other problems. So with the motor vehicle. The motor vehicle has significantly improved the economic and social life of the community. Motor vehicle colli…
R v Kamara
[2016] ACTSC 294 Para 1

…s (Sentencing) Act 2005 (ACT). I have had particular regard to these cases: R v CV [2013] ACTCA 22; A Crim R 67; R v AD [2014] ACTSC 222; R v Aniezue [2016] ACTSC 82; Islam v The Queen [2006] ACTCA 21; R v Major [2016] ACTSC 161.…
Lewis v Jefferson-Taite
[2016] ACTSC 29 Para 1

…s (Sentencing) Act 2005 (ACT). I have had particular regard to these cases: R v CV [2013] ACTCA 22; A Crim R 67; R v AD [2014] ACTSC 222; R v Aniezue [2016] ACTSC 82; Islam v The Queen [2006] ACTCA 21; R v Major [2016] ACTSC 161.…

View all 22 citing cases →

Cases cited in this decision · 16 of 16 shown

Konamala v The Queen
[2016] VSCA 48 Para 1

…ken into account. This approach has been followed since then. See Tan v The Queen (2011) 216 A Crim R 535 at 568-9; [126]-[129]; Konamala v The Queen [2016] VSCA 48 at [23]-[38] and Da Costa Junior v The Queen [2016] VSCA 49 at [22]-[33].…
Da Costa v The Queen
[2016] VSCA 49 Para 1

…. See Tan v The Queen (2011) 216 A Crim R 535 at 568-9; [126]-[129]; Konamala v The Queen [2016] VSCA 48 at [23]-[38] and Da Costa Junior v The Queen [2016] VSCA 49 at [22]-[33].…
R v Pham
[2015] HCA 39 Para 1

…2014, 20 August 2014) and R v Llewellyn (Unreported, District Court of Queensland, Koppenol DCJ, 9 February 2012). As has been explained in R v Pham (2015) 325 ALR 400, there should be consistency in sentencing of Federal offenders throughout Australia and sentencing decisions of other jurisdictions are therefore im…
R v Stephen Fearne
[2014] ACTSC 172 Para 1

…In addition, I was referred to R v Fearne [2014] ACTSC 172, R v Hutton (Unreported, Supreme Court of the Northern Territory, Barr J, SC 21403858, 19 June 2014) and two decisions of District Courts: R v Harris (Unreported, District Court of Queensland, Farr SC DCJ, No 904 of 2014, 20 August 2014) and R v Llewellyn (…
Islam v The Queen
[2014] ACTCA 2 Para 1

…In any event, it appears to me that the Court of Appeal came to the same conclusion in Islam v The Queen [2014] ACTCA 2 at [25], and I am, of course, bound by that decision.…
R v DF (No 2)
[2012] ACTSC 3 Para 1

…to Proceed with the more serious offence of using a carriage service to groom a child ( s 474.27 of the Criminal Code ) was filed. See R v DF (No 2) (2012) 257 FLR 31 at 38; [45] .…
TAN v The Queen
[2011] VSCA 427

…R 503 R v Pham (2015) 325 ALR 400 R v Rivkin (2003) 198 ALR 400 R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 R v Van Hoang Pham [2005] NSWCCA 94 Tan v The Queen (2011) 216 A Crim R 535…
Guden v The Queen
[2010] VSCA 196 Para 1

…This, however, has not been the recent position in Victoria. In 2011, the Court of Appeal in Guden v The Queen (2010) 28 VR 288 at 294-5; [25]-[27] held that the prospect of deportation is a factor that may be relevant to the impact that a sentence of imprisonment must have on an offender, both during the currency…
Einfeld v The Queen (No 2)
[2008] NSWCCA 243 Para 1

…Basten JA described such a matter in Einfeld v The Queen (2010) 266 ALR 598 at 618-21; [85]-[97]. His Honour referred to the "two limbs" – that it is imposed otherwise than by the sentencing court and that it is punishment, a concept his Honour held had been treated with less rigour. In particular, it was unclear whe…
R v Pham
[2005] NSWCCA 94 Para 1

…The effect of the likelihood of deportation has not been uniformly approached in Australia. In R v Van Hoang Pham [2005] NSWCCA 94 at [13], the New South Wales Court of Criminal Appeal held that it was "established principal" that the deportation of an offender was irrelevant in sentencing.…
R v Rivkin
[2003] NSWSC 447

…(Unreported, District Court of Queensland, Koppenol DCJ, 9 February 2012). R v Nahlous (2013) 228 A Crim R 503 R v Pham (2015) 325 ALR 400 R v Rivkin (2003) 198 ALR 400 R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 R v Van Hoang Pham [2005] NSWCCA 94 Tan v The Queen (2011) 216 A Crim R 535…
Cameron v the Queen
[2002] HCA 6 Para 1

…ictment. The discount is, of course, not for its utilitarian value, including saving the community the expenses of the trial (see Cameron v The Queen (2002) 209 CLR 339 at 343; [12]-[14], 352-3; [44]), but I am satisfied that it shows evidence of remorse and a willingness to facilitate the course of justice.…
O'Grady v Northern Queensland Co Ltd
[1990] HCA 16 Para 1

…was followed in R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 196-7, 210 and, more generally, in O'Grady v The Northern Queensland Company Ltd (1990) 169 CLR 356 at 367, where Dawson J commented:…
R v Ross-Jones; Ex parte Green
[1984] HCA 82 Para 1

…This general approach, though there related to the Family Law Act 1975 (Cth), was followed in R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 196-7, 210 and, more generally, in O'Grady v The Northern Queensland Company Ltd (1990) 169 CLR 356 at 367, where Dawson J commented:…
Perlman v Perlman
[1984] HCA 4 Para 1

…That is not to say that any connection between the custody and offences is sufficient, as Gibbs CJ said in Perlman v Perlman (1984) 155 CLR 474 at 484:…
R v De Simoni
[1981] HCA 31 Para 1

…ropriate for these comments, it seems to me that this would, were it to be accepted as an aggravating feature, breach the principles in R v De Simoni (1981) 147 CLR 383, as that would clearly be an element of the more serious offence, which was discontinued.…

Legislation cited in this decision · 5

Crimes (Sentencing) Act 2005 (ACT)
63, 7 3 mentions (from Para 1)
Judiciary Act 1903 (Cth)
68 2 mentions (from Para 1)
Crimes Act 1914 (Cth)
1 mention (from Para 1)
Family Law Act 1975 (Cth)
1 mention (from Para 1)
Migration Act 1958 (Cth)
1 mention (from Para 1)