R v AX (No 3) - [2020] ACTSC 334

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v AX (No 3)
Citation:	[2020] ACTSC 334
Hearing Date:	3 November 2020
Decision Date:	16 November 2020
Before:	Burns J
Decision:	See [44]–[52]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage service to access child abuse material – using a carriage service to possess child abuse material – failing to notify a change in personal circumstances – plea of guilty – breach of good behaviour order – reasonable prospects of rehabilitation – relevance of offender’s youth – consideration of individual and
general deterrence and punishment
Legislation Cited:	Crimes (Child Sex Offenders) Act 2005 (ACT) s 54(2)
Criminal Code Act 1995 (Cth) ss 474.22, 474.22A(1)
Parties:	The Queen (Crown) AX (Offender)
Representation:	Counsel
Z Hough (Crown)
R Christensen (Crown) K Musgrove (Offender)
Solicitors
Commonwealth Director of Public Prosecutions (Crown) ACT Director of Public Prosecutions (Crown)
Prudential Legal (Offender)
File Number:	SCC 114 of 2020; SCC 171 of 2014
BURNS J:

1.       AX, you have entered pleas of guilty to the following three offences:

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first, a charge of using a carriage service between 29 September 2019 and 29 February 2020 to access child abuse material contrary to s 474.22 of the Criminal Code Act 1995 (Cth) (the Commonwealth Criminal Code);

•

second, a charge of using a carriage service on 29 February 2020 to possess child abuse material contrary to s 474.22A(1) of the Commonwealth Criminal Code; and

•

third, a charge that on 29 February 2020, you failed to notify a change in your personal circumstances contrary to s 54(2), of the Crimes (Child Sex Offenders) Act 2005 (ACT).
2.      The maximum penalty for each of the Commonwealth offences is 15 years' imprisonment while that for the ACT offence is five years' imprisonment, a fine of 500 penalty units, or both.
3.       A conviction on the charge of using a carriage service to access child abuse material places you in breach of suspended sentence orders made by me on 17 April 2019 for offences of possession of child pornography and using a child for the production of child pornography. I will return to that matter in a moment.

The facts

4.       On Saturday 29 February 2020, police executed a search warrant at your residential premises in Canberra. You were present during the search. You were residing at those premises with your grandmother, grandfather and fiancée who were all present during the search.
5.       During the search, police located a black Samsung mobile phone. Under caution, you made admissions to being the only person who accessed or used the device. You further admitted that there was child abuse material on the device which you estimated to be about 200 images. You told police that you knew downloading and possessing child abuse material was unlawful.
6.       You provided police with details of the mechanism by which you downloaded the material from the dark web. You said that you accessed material whenever…

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 AX (No 3)

Details

AGLC: R v AX (No 3) [2020] ACTSC 334
Case: [2020] ACTSC 334
Decision Date: 3 November 2020

CaseChat Overview and Summary

In the case of R v AX (No 3), the respondent, AX, pleaded guilty to multiple charges of using a carriage service to access and possess child abuse material, and failing to notify a change in personal circumstances. The matter was heard in the Supreme Court of Queensland. The central issue before the court was the appropriate sentence to be imposed on the respondent, taking into account the nature and severity of the offences, the respondent's age, and the prospects for rehabilitation. The court was also required to consider the breach of a good behaviour order in determining the sentence.

The court considered the seriousness of the offences, which involved the use of a carriage service to access and possess child abuse material, which depicted the abuse of children under the age of 16. The court acknowledged the respondent's youth as a mitigating factor, and noted that the respondent had pleaded guilty, which demonstrated a degree of remorse. However, the court also found that the respondent had breached a good behaviour order, which indicated a lack of respect for the law and the consequences of their actions. The court concluded that a custodial sentence was necessary to adequately reflect the seriousness of the offences, and to provide general deterrence.

After considering the relevant factors, the court imposed a sentence of imprisonment with a non-parole period of four years. The court found that the sentence should reflect the severity of the offences, while also providing the respondent with the opportunity to rehabilitate and reintegrate into society. The court ordered that the respondent serve a non-parole period of four years, followed by a period of supervision and rehabilitation. The court also ordered that the respondent be subject to certain conditions, including a good behaviour order and a requirement to participate in rehabilitation programs.

The final orders of the court are set out in paragraphs [44] to [52] of the judgment. These orders include the imposition of a sentence of imprisonment with a non-parole period of four years, and the imposition of certain conditions on the respondent, including a good behaviour order and a requirement to participate in rehabilitation programs. The court also ordered that the respondent pay a fine of $2,000, and that the respondent be subject to a supervision order for a period of five years following the completion of the non-parole period.

Orders

Orders of the court

See [44]–[52]

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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