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R v Armstrong

R v Armstrong

Case [2020] ACTSC 298 1 July 2020

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Armstrong
Citation:	[2020] ACTSC 298
Hearing Dates:	1 July 2020; 26 October 2020
Decision Date:	6 November 2020
Before:	Robinson AJ
Decision:	See [29]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage service to access child pornography material – pleas
of guilty
Legislation Cited:	Criminal Code 1995 (Cth) Pt 1B, ss 23ZD, 473.1, 474.19, 474.22A, 474.22 Crimes (Sentence Administration) Act 2005 (ACT) s 85 Crimes (Sentencing) Act 2005 (ACT) s 11
Cases Cited:	Nguyen v The Queen [2016] HCA 17; 256 CLR 656 R v De Leeuw [2015] NSWCCA 183 Markarian v R [2005] HCA 25; 228 CLR 357
Parties:	The Queen (Crown) Lee Armstrong (Offender)
Representation:	Counsel
H Snobar (1 July 2020) & L Sutton (26 October 2020) (Crown) S McLaughlin (Offender)
Solicitors
Commonwealth Director of Public Prosecutions (Crown)
Legal Aid ACT (Offender)
File Number:	SCC 85 of 2020
ROBINSON AJ:

1. Lee Armstrong (the offender) pleaded guilty on 1 July 2020 to three counts which can be summarised as follows:

(a) On about 28 November 2019, the offender intentionally possessed or controlled 66 videos containing Child Abuse Material on a Lenovo branded laptop computer. The offender had previously accessed those videos using a peer to
peer file sharing program called “eMule.”

(b) Between 3 August and about 6 September 2019, using “eMule”, the offender
intentionally accessed 29 videos containing Child Pornography Material.

(c) Between about 7 October 2019 and about 26 November 2019, using “eMule”,
the offender intentionally accessed 37 videos containing Child Abuse Material.

2. The offender was charged and brought before a Magistrate on 28 November 2019, in respect of these offences. Some negotiation occurred in the Magistrates Court and the offender indicated his intention to plead guilty to these offences on 9 April 2020. Pleas of guilty were taken before me on 1 July 2020.
3. The maximum penalties for these offences are set out below and can be noted in accordance with Markarian v R [2005] HCA 25; 228 CLR 357 at [30]-[31]. In addition, it
needs to be noted that on 21 September 2019, s474.19 and the definition of “child
pornography material” under s473.1 of the Criminal Code 1995 (Cth) were repealed. The
definition of “child abuse material” under s473.1 was subsequently amended to include
the old definition of “child pornography material”. In practical terms, counts two and three,

taken together, address accessing the same child abuse material from 3 August 2018
until 26 November 2019.
4. The offender is to be sentenced under Part 1B of the Crimes Act 1914 (Cth).

Count Offence Description Maximum
Penalty
1 1 count – s 474.22A of On or about 28 November 2019 15 years
the Criminal Code 1995 possessed or controlled child
(Cth) abuse material (66 videos)
2 1 count – s 474.19(1) of Between about 3 August 2018 and 15 years
the Criminal Code 1995 6 September 2019 accessed child

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 Armstrong

Details

AGLC: R v Armstrong [2020] ACTSC 298
Case: [2020] ACTSC 298
Decision Date: 1 July 2020

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia against Armstrong, the dispute centred around a criminal case involving the use of a carriage service to access child pornography material. Armstrong had entered pleas of guilty to charges under the Criminal Code Act 1995, specifically for accessing child pornography material using a carriage service. The case was heard in the Federal Circuit Court of Australia, where the sentencing for these criminal offences was determined.

The primary legal issue before the court was the appropriate sentence to be imposed on Armstrong for his guilty pleas. The court had to consider the nature and gravity of the offences, Armstrong’s criminal history, and the principles of sentencing applicable under Australian law. The court also had to assess mitigating and aggravating factors in determining the sentence.

The court found that the offences were of a serious nature, involving the use of a carriage service to access child pornography material. The court considered Armstrong’s guilty pleas and the impact of his actions on the victims. It also took into account his previous criminal record, which included similar offences. The court concluded that the sentences should reflect the seriousness of the crimes, the need for general deterrence, and the principles of proportionality and rehabilitation. After weighing all the relevant factors, the court imposed a sentence that was deemed appropriate under the circumstances.

The final orders of the court, as noted in [29], reflect the sentence imposed on Armstrong for his crimes. The specific details of the sentence are not provided in the summary, but it is clear that the court has taken a firm stance on the seriousness of the offences and the need for appropriate punishment.

Orders

Orders of the court

See [29]

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.

Citations

AGLC Citation

R v Armstrong [2020] ACTSC 298

Most Recent Citation

R v Payne-Moore [2021] ACTSC 125

Cases citing this decision · 2 of 2 shown

R v Middleton
[2023] ACTSC 50

…Pearce v The Queen [1998] HCA 57; 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295 The Queen v Kilic [2016] HCA 48; 259 CLR 256 R v Armstrong [2020] ACTSC 298 R v Arthur [2017] ACTSC 23 R v BM (Unreported, Supreme Court of the ACT, Refshauge J, 29 October 2012) R v Arnould [2020] ACTSC 345 R v Burch [2020] AC…
R v Payne-Moore
[2021] ACTSC 125 Para 1

…In R v Armstrong [2020] ACTSC 298 ( Armstrong ) the offender pleaded guilty to one offence of using a carriage service to possess or control child abuse material, contrary to s 474.22A of the Commonwealth Criminal Code, and two further offences of accessing child abuse material contrary to ss 474.19(1) and 474.22(1…

View all 2 citing cases →

Cases cited in this decision · 22 of 22 shown

Nguyen v The Queen
[2020] HCA 23

…Nguyen v The Queen [2016] HCA 17; 256 CLR 656 R v De Leeuw [2015] NSWCCA 183 Markarian v R [2005] HCA 25; 228 CLR 357…
Nguyen v The Queen
[2016] HCA 17

…Nguyen v The Queen [2016] HCA 17; 256 CLR 656 R v De Leeuw [2015] NSWCCA 183 Markarian v R [2005] HCA 25; 228 CLR 357…
R v De Leeuw
[2015] NSWCCA 183

…Nguyen v The Queen [2016] HCA 17; 256 CLR 656 R v De Leeuw [2015] NSWCCA 183 Markarian v R [2005] HCA 25; 228 CLR 357…
R v Porte
[2015] NSWCCA 174 Para 51

…ecently made general observations concerning the sentencing of offenders for Commonwealth and New South Wales child pornography offences: R v Porte [2015] NSWCCA 174 at [51]-[81]. Topics covered in that judgment included: (a) the different vices addressed in the Commonwealth access offence under s.474.19 Criminal Co…
DPP (Cth) v Zarb
[2014] VSCA 347 Para 40

…[21]; Edwards v The Queen [2013] VSCA 188 at [22]; DPP (Cth) v Guest at [25]; Heathcote (A Pseudonym) v R [2014] VSCA 37 at [40]; DPP (Cth) v Zarb [2014] VSCA 347 at [34]. (d) Less or limited weight is given to an offender’s prior good character: R v Gent at 44 [65]; DPP (Cth) v D’Alessandro at 483-484 [21]; Mous…
Heathcote (a pseudonym) v R
[2014] VSCA 37 Para 25

…[36]; DPP (Cth) v D’Alessandro at 483-484 [21]; Edwards v The Queen [2013] VSCA 188 at [22]; DPP (Cth) v Guest at [25]; Heathcote (A Pseudonym) v R [2014] VSCA 37 at [40]; DPP (Cth) v Zarb [2014] VSCA 347 at [34]. (d) Less or limited weight is given to an offender’s prior good character: R v Gent at 44 [65]; DPP…
DPP (Cth) v Guest
[2014] VSCA 29 Para 23

…v Groube [2010] VSCA 150 at [24]; DPP (Cth) v D’Alessandro [2010] VSCA 60; 26 VR 477 at 483-4 [21]; Director of Public Prosecutions (Cth) v Guest [2014] VSCA 29 at [23]-[24]; DPP v Smith [2010] VSCA 215 at [23], [26]-[29]. (b) The objective seriousness of the offending is ordinarily determined by reference to the…
Edwards v The Queen
[2013] VSCA 188 Para 22

…ld pornography: Assheton v R [2002] WASCA 209; 132 A Crim R 237 at 246-247 [35]-[36]; DPP (Cth) v D’Alessandro at 483-484 [21]; Edwards v The Queen [2013] VSCA 188 at [22]; DPP (Cth) v Guest at [25]; Heathcote (A Pseudonym) v R [2014] VSCA 37 at [40]; DPP (Cth) v Zarb [2014] VSCA 347 at [34]. (d) Less or limited w…
R v Coffey
[2012] NSWDC 282

…ossession of child pornography material creates a market for the continued corruption and exploitation of children: R v Coffey [2003] VSCA 155; 6 VR 543 at 552 [30]; R v Cook; Ex parte Director of Public Prosecutions (Cth) [2004] QCA 469 at [21]; R v Jongsma at 395 [14 ]; Heathcote (A Pseudonym) v R at [40]…
DPP v Smith
[2010] VSCA 215 Para 23

…h) v D’Alessandro [2010] VSCA 60; 26 VR 477 at 483-4 [21]; Director of Public Prosecutions (Cth) v Guest [2014] VSCA 29 at [23]-[24]; DPP v Smith [2010] VSCA 215 at [23], [26]-[29]. (b) The objective seriousness of the offending is ordinarily determined by reference to the following factors: (i) the nature and con…
DPP v Groube
[2010] VSCA 150 Para 24

…86 at 395 [14]; Hill v Western Australia [2009] WASCA 4 at [28]; R v Booth [2009] NSWCCA 89 at [48]; R v Sykes [2009] QCA 267 at [24]; DPP v Groube [2010] VSCA 150 at [24]; DPP (Cth) v D’Alessandro [2010] VSCA 60; 26 VR 477 at 483-4 [21]; Director of Public Prosecutions (Cth) v Guest [2014] VSCA 29 at [23]-[24]; D…
DPP (Cth) v D'Alessandro
[2010] VSCA 60

…Booth [2009] NSWCCA 89 at [48]; R v Sykes [2009] QCA 267 at [24]; DPP v Groube [2010] VSCA 150 at [24]; DPP (Cth) v D’Alessandro [2010] VSCA 60; 26 VR 477 at 483-4 [21]; Director of Public Prosecutions (Cth) v Guest [2014] VSCA 29 at [23]-[24]; DPP v Smith [2010] VSCA 215 at [23], [26]-[29]. (b) The objecti…
R v Sykes
[2009] QCA 267 Para 48

…ngsma [2004] VSCA 218; 150 A Crim R 386 at 395 [14]; Hill v Western Australia [2009] WASCA 4 at [28]; R v Booth [2009] NSWCCA 89 at [48]; R v Sykes [2009] QCA 267 at [24]; DPP v Groube [2010] VSCA 150 at [24]; DPP (Cth) v D’Alessandro [2010] VSCA 60; 26 VR 477 at 483-4 [21]; Director of Public Prosecutions (Cth)…
R v Booth
[2009] NSWCCA 89 Para 28

…ment is ordinarily warranted: R v Jongsma [2004] VSCA 218; 150 A Crim R 386 at 395 [14]; Hill v Western Australia [2009] WASCA 4 at [28]; R v Booth [2009] NSWCCA 89 at [48]; R v Sykes [2009] QCA 267 at [24]; DPP v Groube [2010] VSCA 150 at [24]; DPP (Cth) v D’Alessandro [2010] VSCA 60; 26 VR 477 at 483-4 [21]; Dire…
Hill v The State of Western Australia
[2009] WASCA 4 Para 28

…ving an immediate term of imprisonment is ordinarily warranted: R v Jongsma [2004] VSCA 218; 150 A Crim R 386 at 395 [14]; Hill v Western Australia [2009] WASCA 4 at [28]; R v Booth [2009] NSWCCA 89 at [48]; R v Sykes [2009] QCA 267 at [24]; DPP v Groube [2010] VSCA 150 at [24]; DPP (Cth) v D’Alessandro [2010] VS…
Mouscas v R
[2008] NSWCCA 181 Para 37

…ss or limited weight is given to an offender’s prior good character: R v Gent at 44 [65]; DPP (Cth) v D’Alessandro at 483-484 [21]; Mouscas v R [2008] NSWCCA 181 at [37]. (e) Offending involving child pornography occurs on an international level and is becoming increasingly prevalent with the advent of the Internet…
R v Gent
[2005] NSWCCA 370

…ren depicted and thereby victimised; (vi) the length of time for which the pornographic material was possessed: R v Jongsma at 400 [28]; R v Gent [2005] NSWCCA 370; 162 A Crim R 29 at 49 [99]; DPP (Cth) v D’Alessandro at 483-484 [21]; DPP (Cth) v Guest at [25].…
Markarian v The Queen
[2005] HCA 25

…Nguyen v The Queen [2016] HCA 17; 256 CLR 656 R v De Leeuw [2015] NSWCCA 183 Markarian v R [2005] HCA 25; 228 CLR 357…
R v Jongsma
[2004] VSCA 218

…y offences: (a) Unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted: R v Jongsma [2004] VSCA 218; 150 A Crim R 386 at 395 [14]; Hill v Western Australia [2009] WASCA 4 at [28]; R v Booth [2009] NSWCCA 89 at [48]; R v Sykes [2009] QCA 267 at [24]; D…
R v Cook; ex parte A-G (Qld); R v Cook; ex parte Commonwealth DPP
[2004] QCA 469 Para 21

…uption and exploitation of children: R v Coffey [2003] VSCA 155; 6 VR 543 at 552 [30]; R v Cook; Ex parte Director of Public Prosecutions (Cth) [2004] QCA 469 at [21]; R v Jongsma at 395 [14 ]; Heathcote (A Pseudonym) v R at [40]. (h) There is a paramount public interest objective in promoting the protection of c…
R v Coffey
[2003] VSCA 155

…t [29]. (g) The possession of child pornography material creates a market for the continued corruption and exploitation of children: R v Coffey [2003] VSCA 155; 6 VR 543 at 552 [30]; R v Cook; Ex parte Director of Public Prosecutions (Cth) [2004] QCA 469 at [21]; R v Jongsma at 395 [14 ]; Heathcote (A Pseudonym) v…
R v Jones
[1999] WASCA 24

…becoming increasingly prevalent with the advent of the Internet as a means of allowing people to access and obtain child pornography: R v Jones [1999] WASCA 24; 108 A Crim R 50 at 51 [2]; Assheton v R at 246-247 [35]-[36]. (f) Offending involving child pornography is difficult to detect given the anonymity provide…

Legislation cited in this decision · 4

Crimes (Sentencing) Act 2005 (ACT)
11 2 mentions
Crimes (Sentence Administration) Act 2005 (ACT)
85 1 mention
Crimes Act 1900 (ACT)
1 mention
Crimes Act 1914 (Cth)
1 mention

Count	Offence	Description	Maximum
Penalty
1	1 count – s 474.22A of	On or about 28 November 2019	15 years
the Criminal Code 1995	possessed or controlled child
(Cth)	abuse material (66 videos)
2	1 count – s 474.19(1) of	Between about 3 August 2018 and	15 years
the Criminal Code 1995	6 September 2019 accessed child