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R v Ashman

R v Ashman

Case [2010] ACTSC 45 21 May 2010

Child Pornography Offences

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HUMAN RIGHTS ACT

R v BRUCE RONALD ASHMAN
[2010] ACTSC 45 (21 MAY 2010)
CRIMINAL LAW – Child pornography offences – using a carriage service to access child pornography – section 474.19, Criminal Code 2002 (Cth).
CRIMINAL LAW – Child pornography offences – possession of child pornography – section 65, Crimes Act 1900 (ACT).
CRIMINAL LAW – Sentencing - Factors that can be taken into account when sentencing- impact of sentencing on accused family.
CRIMINAL LAW – Sentencing – Material provided through reports – offender not giving evidence – approach to be taken.
CRIMINAL LAW – Sentencing – Pre-Sentence Reports – weight to be given to them – prosecution duties.
Criminal Code 2002, s 474.19
Crimes Act 1900 (ACT), s 65
Legislation Act 2001 (ACT), s 133
Crimes (Sentencing) Act 2005 (ACT), Pt 4.2
Crimes (Sentencing) Act 2005 (ACT), s 33(1)(o)
Crimes Act 1900 (ACT), s 342(1)(j)
Proceeds of Crime Act 2002 (Cth), ss 48(2), 316, 69(2), 56
Crimes Act 1914 (Cth), s 16A(2)(p)
R v Oliver [2003] 1 Cr App R 28
R v Fowler [2007] ACTCA 4
Mouscas v The Queen [2008] NSWCCA 18
R v Niketic [2002] NSWCCA 425
R v Palu [2002] NSWCCA 381
Carpentieri (2001) 126 A Crim R 359
Markovic v The Queen [2010] VSCA 105
Edwards (1996) 90 A Crim R 510
Wirth (1976) 14 SASR 291
Craft v Diebert [2004] ACTCA 15
R v McLaughlin (ACTSC) Refshauge J, SCC 222 of 2008, 7 August 2009, unreported

EX TEMPORE JUDGMENT
No. SCC 38 of 2010
Judge: Refshauge J
Supreme Court of the ACT
Date: 21 May2010

IN THE SUPREME COURT OF THE )
) No SCC 38 of 2010
AUSTRALIAN CAPITAL TERRITORY )
R
v
BRUCE RONALD ASHMAN

ORDER
Judge:  Refshauge J
Date:  7 May 2010
Place:  Canberra
THE COURT ORDERS THAT:
1.Mr Ashman is convicted of the offence of using a carriage service to possess child pornography material.
2.On that charge Mr Ashman is sentenced to 18 months’ imprisonment.
3.It is ordered that he be released forthwith upon giving security in the sum of $2,000 without sureties by recognizance that:
(a)you be in good behaviour for 3 years,
(b)you accept supervision of a probation officer delegated by the Chief Executive of the Department of Justice and Community Safety and obey all reasonable directions of that probation officer.

4. Mr Ashman is convicted of the offence of possessing child pornography.
5.On that charge Mr Ashman is sentenced to 9 months’ imprisonment to commence today.
6.The whole of that sentence is suspended forthwith and Mr Ashman is required to sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for 3 years. As a condition of that good behaviour order I direct that Mr Ashman:
(a)direct that you perform 300 hours of community service work within 24 months from today;
(b)I direct that you be on probation subject to the supervision of a probation officer delegated by the Chief Executive for a period 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 Ashman

Details

AGLC: R v Ashman [2010] ACTSC 45
Case: [2010] ACTSC 45
Decision Date: 21 MAY 2010

CaseChat Overview and Summary

The case of R v Ashman involved the accused, Mr Ashman, being prosecuted for offences related to child pornography under Australian law. Mr Ashman was charged with using a carriage service to access child pornography, in violation of section 474.19 of the Criminal Code 2002 (Cth), and with possessing child pornography under section 65 of the Crimes Act 1900 (ACT). The court had to determine whether the evidence presented was sufficient to convict Mr Ashman of both charges, and if so, to determine an appropriate sentence. The court also considered the impact of sentencing on Mr Ashman’s family and the weight to be given to the pre-sentence reports provided.

The legal issues before the court were multifaceted. Firstly, the court had to assess the sufficiency of the evidence to establish that Mr Ashman had used a carriage service to access child pornography and that he had possessed such material. Secondly, in determining the sentence, the court needed to consider the impact on Mr Ashman’s family and the appropriateness of the penalties prescribed by law. Additionally, the court had to decide how to weigh the pre-sentence reports provided, particularly given that Mr Ashman did not give evidence. The court had to balance the prosecution's duty to provide material through reports and the accused's right to a fair trial.

In its reasoning, the court found Mr Ashman guilty on both charges. The court concluded that the evidence was sufficient to establish the offences. In sentencing, the court considered the impact on Mr Ashman's family and the nature of the offences. It imposed a sentence of 18 months' imprisonment for using a carriage service to possess child pornography, which was to be suspended and replaced with a good behaviour order and community service. For the possession of child pornography, the court imposed a 9-month suspended sentence, also accompanied by a good behaviour order and probation supervision. The court ordered the forfeiture of certain property related to the offences under the Proceeds of Crime Act 2002 (Cth) and granted leave for the official trustee to deal with the property before the appeal period. Finally, the non-publication order was discharged, allowing the case details to be made public.

The final orders of the court included Mr Ashman's conviction and sentencing on both charges, the forfeiture of specific property to the Commonwealth, and the discharge of the non-publication order. Each party was ordered to bear its own costs.

Orders

Orders of the court

1. Mr Ashman is convicted of the offence of using a carriage service to possess child pornography material.

2. On that charge Mr Ashman is sentenced to 18 months’ imprisonment.

3. It is ordered that he be released forthwith upon giving security in the sum of $2,000 without sureties by recognizance that: (a) you be in good behaviour for 3 years, (b) you accept supervision of a probation officer delegated by the Chief Executive of the Department of Justice and Community Safety and obey all reasonable directions of that probation officer.

4. Mr Ashman is convicted of the offence of possessing child pornography.

5. On that charge Mr Ashman is sentenced to 9 months’ imprisonment to commence today.

6. The whole of that sentence is suspended forthwith and Mr Ashman is required to sign an undertaking to comply with the offenders good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for 3 years. As a condition of that good behaviour order I direct that Mr Ashman: (a) direct that you perform 300 hours of community service work within 24 months from today; (b) I direct that you be on probation subject to the supervision of a probation officer delegated by the Chief Executive for a period of 3 years and that you obey all reasonable directions of the person delegated to supervise you.

7. Pursuant to s 48(2) and s 316 of the Proceeds of Crime Act 2002 (Cth), in respect of Mr Ashman’s conviction of the offence of using a carriage service to access child pornography material, the property specified in schedule 2, namely the black coloured Medion computer tower, the silver coloured Gigabyte Seagate external hard drive and the seven DVDs, be forfeited to the Commonwealth.

8. Leave is granted pursuant to s 69(2) Proceeds of Crime Act 2002 (Cth) for the official trustee to deal with the property referred to in the forfeiture order before the expiration of the appeal period in respect of the forfeiture order. Pursuant to s 56 of the Act the court specifies the value of the property specified in the schedule as $210. Each party is to pay its own costs of and incidental to the proceedings.

9. The non-publication order is discharged

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 Ashman [2010] ACTSC 45

Most Recent Citation

R v John Freestone [2010] ACTSC 87

Cases citing this decision · 11 of 11 shown

R v Rogers
[2021] ACTSC 355 Para 1

…That decision has been accepted in this jurisdiction, though with some modification, having regard to our particular statutory regimes: R v Ashman [2010] ACTSC 45 at [26]–[27]. That modification also applies to the preparation of Suitability Assessments which are regulated by ss 46J and 46K of the Sentencing Act .…
R v BC (No 4)
[2021] ACTSC 119 Para 1

…isted relevant factor is a matter entirely in the Court’s discretion. This reasoning has been applied in subsequent cases: see R v Ashman [2010] ACTSC 45 ( R v Ashman ) at [36]-[40] and R v Weir [2015] ACTSC 394 ( R v Weir ) at [27]-[31].…
R v Pearson
[2020] ACTSC 375 Para 1

…e made to that approach, particularly in relation to Pre-Sentence Reports, in light of the different statutory regime in this Territory in R v Ashman [2010] ACTSC 45 at [27].…
R v Crawford (No 3)
[2020] ACTSC 369 Para 1

…ut that the statutory regime for preparing Pre-Sentence Reports in this jurisdiction may justify them being treated somewhat differently ( R v Ashman [2010] ACTSC 45 at [27]). Indeed, there may, in some cases, be corroboration of the offender's statement ( R v Freestone [2010] ACTSC 87 at [35]-[36]).…
Law v Ilievski
[2016] ACTSC 291 Para 1

…merely the result of self-report by Mr Law. It also means that he alone is not necessarily responsible for any errors of fact in it. See R v Ashman [2010] ACTSC 45 at [30].…
R v TL (No 2)
[2016] ACTSC 289 Para 1

…While it is clear, as I pointed out in R v Ashman [2010] ACTSC 45 at [28]-[29], that the Crown is not bound by the contents of such reports, which it is required, in fairness, to tender, it should make clear at the time whether it wishes to controvert any of the contents including, where relevant, cross-examining…
R v Mitchell
[2016] ACTSC 85 Para 1

…9. Apart from the modification to the principles in that case, so far as those principles relate to this territory, to which I referred in R v Ashman [2010] ACTSC 45 at [27], the situation here was quite different, for Mr Mitchell did give evidence and Mr Nomchong also relied on his own observations of Mr Mitchell…
R v MT
[2014] ACTSC 162 Para 1

…I suggested that there may need to be some modification of that approach in R v Ashman [2010] ACTSC 45 at [27], though this was a somewhat different situation where the question of remorse was not something that could be confirmed in the way in which other matters in pre-sentence reports regularly are in this Terr…
R v Ross
[2011] ACTSC 211 Para 1

…In R v Ashman [2010] ACTSC 45, I said (at [28] – [29]):…
Garoup Bol Guak Dhol v Jane Glenda MacKenzie
[2011] ACTSC 193 Para 1

…and rejected without a reasonable basis for doing so, and, of course, there is sometimes a very reasonable basis for it (see, for example, R v Ashman [2010] ACTSC 45 (at [26])), then the only alternative for defence counsel is to call the defendant to give sworn evidence and adduce other evidence at some costs, pr…
R v John Freestone
[2010] ACTSC 87 Para 1

…rists and psychologists, especially where no evidence is given by the offender. While that caution is well‑founded, I did point out in R v Ashman [2010] ACTSC 45 (at [27]):…

View all 11 citing cases →

Cases cited in this decision · 7 of 7 shown

Markovic v The Queen
[2010] VSCA 105

…CA 18 R v Niketic [2002] NSWCCA 425 R v Palu [2002] NSWCCA 381 Carpentieri (2001) 126 A Crim R 359 Markovic v The Queen [2010] VSCA 105 Edwards (1996) 90 A Crim R 510 Wirth (1976) 14 SASR 291 Craft v Diebert [2004] ACTCA 15 R v McLaughlin (ACTSC) Refshauge J, SCC 222 of 2008, 7 August 2009, unreported…
Delfino, Raymond Joseph v The Queen
[2008] NSWCCA 18

…2), 56 Crimes Act 1914 (Cth), s 16A(2)(p) R v Oliver [2003] 1 Cr App R 28 R v Fowler [2007] ACTCA 4 Mouscas v The Queen [2008] NSWCCA 18 R v Niketic [2002] NSWCCA 425 R v Palu [2002] NSWCCA 381 Carpentieri (2001) 126 A Crim R 359 Markovic v The Queen [2010] VSCA 105 Edwards (1996) 90 A Crim R 510 Wirth (1976) 14 SA…
R v Fowler
[2007] ACTCA 4

…Act 2002 (Cth), ss 48(2), 316, 69(2), 56 Crimes Act 1914 (Cth), s 16A(2)(p) R v Oliver [2003] 1 Cr App R 28 R v Fowler [2007] ACTCA 4 Mouscas v The Queen [2008] NSWCCA 18 R v Niketic [2002] NSWCCA 425 R v Palu [2002] NSWCCA 381 Carpentieri (2001) 126 A Crim R 359 Markovic v The Queen [2010] VSCA 105 Edwards (199…
Craft v Diebert
[2004] ACTCA 15

…Crim R 359 Markovic v The Queen [2010] VSCA 105 Edwards (1996) 90 A Crim R 510 Wirth (1976) 14 SASR 291 Craft v Diebert [2004] ACTCA 15 R v McLaughlin (ACTSC) Refshauge J, SCC 222 of 2008, 7 August 2009, unreported…
R v Niketic
[2002] NSWCCA 425

…s 16A(2)(p) R v Oliver [2003] 1 Cr App R 28 R v Fowler [2007] ACTCA 4 Mouscas v The Queen [2008] NSWCCA 18 R v Niketic [2002] NSWCCA 425 R v Palu [2002] NSWCCA 381 Carpentieri (2001) 126 A Crim R 359 Markovic v The Queen [2010] VSCA 105 Edwards (1996) 90 A Crim R 510 Wirth (1976) 14 SASR 291 Craft v Diebert [2004]…
R v Palu
[2002] NSWCCA 381

…03] 1 Cr App R 28 R v Fowler [2007] ACTCA 4 Mouscas v The Queen [2008] NSWCCA 18 R v Niketic [2002] NSWCCA 425 R v Palu [2002] NSWCCA 381 Carpentieri (2001) 126 A Crim R 359 Markovic v The Queen [2010] VSCA 105 Edwards (1996) 90 A Crim R 510 Wirth (1976) 14 SASR 291 Craft v Diebert [2004] ACTCA 15 R v McLaughlin (AC…
Crown has not had the opportunity to test that account, and for the reasons discussed in R v Palu
[2002] NSWCCA 2001

…ot give evidence in the sentencing proceedings, the Crown has not had the opportunity to test that account, and for the reasons discussed in R v Palu [2002] NSWCCA 2001 and R v Qutami [2001 NSWCCA 353; (2001) 127 A Crim R 369, it must be given limited weight. I would add my voice to the dissatisfaction expressed in t…

Legislation cited in this decision · 7

Proceeds of Crime Act 2002 (Cth)
316, 48(2), 56, 69(2) 5 mentions
Crimes Act 1900 (ACT)
342(1)(j), 65 3 mentions
Crimes (Sentencing) Act 2005 (ACT)
33(1)(o) 2 mentions
Crimes Act 1914 (Cth)
16A(2)(p) 2 mentions
Legislation Act 2001 (ACT)
133 2 mentions
Crimes (Sentence Administration) Act 2005 (ACT)
1 mention
Human Rights Act 2004 (ACT)
1 mention