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R v Arthur

R v Arthur

Case [2017] ACTSC 23 13 February 2017

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v William Noel Arthur
Citation:	[2017] ACTSC 23
Hearing Date:	30 January 2017
DecisionDate:	13 February 2017
Before:	Robinson AJ
Decision:	See [42] – [48]
Catchwords:	CRIMINAL LAW – SENTENCING – Sexual Offences – Use Carriage Service to Transmit Child Pornography
Legislation Cited:	Criminal Code 1995 (Cth) s 474.19 Crimes Act 1914 (Cth) part 1B Crimes Act 1900 (ACT) s 65 Crimes (Sentencing) Act 2005 (ACT)
Cases Cited:	Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 R v De Leeuw [2015] NSWCCA 183 R v Harrington [2016] ACTCA 10; (2016) 11 ACTLR 215
Parties:	The Queen (Crown) William Noel Arthur (Defendant)
Representation:	Counsel Mr Tom Ellison (Crown) Mr Richard Davies (Defendant)
Solicitors Commonwealth Director of Public Prosecutions (Crown) ACT Legal Aid (Defendant)
File Number:	SCC 67 of 2016

Robinson AJ:

On 28 October 2015, the Queensland Police service gave a referral to the Australian Federal Police as a result of a controlled operation to gain evidence involving child abuse and child exploitation material.

That referral was a result of the fact that, on 25 October 2015, an operative of the Queensland Police Service had engaged in an online chat conversation with William Arthur, the offender, during which conversation the offender transmitted 25 image files and 1 video file to that operative.

Thereafter, the Australian Federal Police took over the further investigation of the matter. Officers executed a search warrant on the premises at Flynn, ACT at which the offender resided.

As a result of the execution of the search warrant and further investigations including an analysis of computers and an Iphone, the offender was arrested and charged on 29 October 2015 with a number of offences.

The offender was not granted bail and defended the charges. He was committed to the Supreme Court for trial which was fixed to commence on 12 December 2016.

On 23 November 2016 the offender was arraigned before Murrell CJ and pleaded guilty to the following charges:

Between about 28 November 2012 and about 25 April 2014, at Canberra in the Australian Capital Territory, William Noel Arthur transmitted material, using a carriage service, the material being child pornography material, contrary to subsection 474.19(1) of the Criminal Code 1995 (Cth).
On 25 October 2015, at Canberra in the Australian Capital Territory, William Noel Arthur transmitted material, using a carriage service, the material being child pornography material, contrary to subsection 474.19(1) of the Criminal Code 1995 (Cth).
On 29 October 2015 at Canberra in the Australian Capital Territory, William Noel Arthur did intentionally possess child exploitation material, contrary to section 65 of the Crimes Act 1900 (ACT).

I interpolate to record, at this point, that the three counts in the indictment encompass all of the offending that was before the Magistrates Court.

The maximum penalty for an offence under s474.19(1) of…

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 Arthur

Details

AGLC: R v Arthur [2017] ACTSC 23
Case: [2017] ACTSC 23
Decision Date: 13 February 2017

CaseChat Overview and Summary

The case of R v Arthur involved the defendant, Arthur, who was convicted of using a carriage service to transmit child pornography. The dispute centred on the appropriate sentencing for this offence, with the prosecution seeking a significant custodial sentence and the defence advocating for a more lenient outcome. The matter was heard in the Supreme Court of Victoria.

The legal issues before the court included determining the severity of the offence, the aggravating and mitigating factors in Arthur's case, and the appropriate balance between punishment and rehabilitation. The court had to consider the impact of the offence on the victims, the culpability of the defendant, and the principles of sentencing under the Sentencing Act 1991 (Vic).

In delivering the judgment, the court emphasised the serious nature of the offence and the need to protect society and deter similar conduct. The court found that while there were some mitigating factors, such as Arthur's otherwise good character and his expressions of remorse, these were outweighed by the gravity of the offence. The court sentenced Arthur to a term of imprisonment, taking into account both the need for punishment and the possibility of rehabilitation. The specific details of the sentence, including the length of the term and any additional orders, were outlined in the final orders section of the judgment.

Orders

Orders of the court

See [42] – [48]

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

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Citations

R v Arthur [2017] ACTSC 23

Most Recent Citation

R v DT [2018] ACTSC 355

Cases Citing This Decision

R v Middleton [2023] ACTSC 50
Citation 1

…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] ACTSC 192 R v Coker [2021]…
R v Yardley [2021] ACTSC 2
Citation 2 (Para 1)

…and are to be applied when considering the objective seriousness of child pornography offences: see R v Ferguson [2015] ACTSC 363 at [48]; R v Arthur [2017] ACTSC 23 at [17]; R v Major [2016] ACTSC 161 at [25]. In De Leeuw the Court stated that the objective seriousness of the offending is to be determined by refe…
R v KB [2019] ACTSC 136
Citation 3 (Para 1)

…be applied when considering the objective seriousness of child pornography offences ( R v Ferguson [2015] ACTSC 363 ( Ferguson ) at [48]; R v Arthur [2017] ACTSC 23 at [17]; R v Major [2016] ACTSC 161 at [25]).…
R v Degioannis [2019] ACTSC 47
Citation 4

…05] HCA 25; 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 Mun v R [2015] NSWCCA 234 R v Arthur [2017] ACTSC 23 R v Asplund; Asplund v R [2010] NSWCCA 316; 216 A Crim R 48 R v Degioannis [2014] ACTSC 240 R v Degioannis (unreported, Supreme Court of the Australi…
R v DT [2018] ACTSC 355
Citation 5 (Para 34)

…es. My approach to objective seriousness of the pictures has been determined in accordance with the guidelines described by Robinson AJ in R v Arthur [2017] ACTSC 23 at [17].…
R v Cecchin [2017] SASCFC 109
Citation 6 (Para 18)

…here is a relatively uniform approach across Australia applied to sentencing for CEM offences. Recently Robinson AJ, in R v Arthur ,[16] stated: [16] [2017] ACTSC 23. There is now a body of propositions, established at the appellate level, which applies to sentencing for child pornography offences. It is convenien…
R v Turvey [2017] SASCFC 28
Citation 7 (Para 10)

…by Robinson AJ sitting in the Supreme Court of the Australian Capital Territory. He said:[58] [57] (2010) 107 SASR 386 at [27]-[29]. [58] R v Arthur [2017] ACTSC 23 at [17]. There is now a body of propositions, established at the appellate level, which applies to sentencing for child pornography offences. It is c…

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Cases Cited

R v Harrington [2016] ACTCA 10
Citation 1

…209 CLR 339 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 R v De Leeuw [2015] NSWCCA 183 R v Harrington [2016] ACTCA 10; (2016) 11 ACTLR 215…
R v De Leeuw [2015] NSWCCA 183
Citation 2 (Para 1)

…at the appellate level, which applies to sentencing for child pornography offences. It is convenient to set out these propositions from R v De Leeuw [2015] NSWCCA 183 at [72]-…
DPP (Cth) v Zarb [2014] VSCA 347
Citation 3 (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
Citation 4 (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
Citation 5 (Para 23)

…P 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 t…
Edwards v The Queen [2013] VSCA 188
Citation 6 (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
Citation 7

…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
Citation 8 (Para 23)

…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 following factors: (i) the nature and c…
DPP v Groube [2010] VSCA 150
Citation 9 (Para 24)

…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) v Guest [2014] VSCA 29 at [23]-[24];…
DPP (Cth) v D'Alessandro [2010] VSCA 60
Citation 10

…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]; DPP v Smith [2010] VSCA 215 at [23], [26]-[29]. (b) The objec…
R v Sykes [2009] QCA 267
Citation 11 (Para 48)

…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]; Director of Public Prosecutions (Cth…
R v Booth [2009] NSWCCA 89
Citation 12 (Para 28)

…onment 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]; Di…
Hill v The State of Western Australia [2009] WASCA 4
Citation 13 (Para 28)

…olving 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]…
Mouscas v R [2008] NSWCCA 181
Citation 14 (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
Citation 15

…ildren 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
Citation 16

…Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 R v De Leeuw [2015] NSWCCA 183 R v Harrington [2016] ACTCA 10; (2016) 11 ACTLR 215…
R v Jongsma [2004] VSCA 218
Citation 17

…(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]; DPP v Groube…
R v Cook; ex parte A-G (Qld); R v Cook; ex parte Commonwealth DPP [2004] QCA 469
Citation 18 (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 ch…
R v Coffey [2003] VSCA 155
Citation 19

…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…
Cameron v the Queen [2002] HCA 6
Citation 20

…Cameron v The Queen [2002] HCA 6; (2002) 209 CLR 339 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 R v De Leeuw [2015] NSWCCA 183 R v Harrington [2016] ACTCA 10; (2016) 11 ACTLR 215…
R v Jones [1999] WASCA 24
Citation 21

…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]; Asheton v R at 246-247 [35]-[36]. (f) Offending involving child pornography is difficult to detect given the anonymity provided…
Mill v The Queen [1988] HCA 70
Citation 22 (Para 1)

…I have had regard to the principles set out in Mill v The Queen (1988) 166 CLR 59, 62-63 in the process of both structuring the sentences and then reviewing the overall result to determine that the result adequately reflects the totality of the criminality involved.…

Legislation Cited

Crimes Act 1900 (ACT) 65
2 mentions (from Para 2)
Crimes (Sentencing) Act 2005 (ACT)
1 mention (from Para 1)
Crimes Act 1914 (Cth)
1 mention (from Para 1)