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R v Barber

R v Barber

Case [2021] ACTSC 78 27 April 2021

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Barber
Citation:	[2021] ACTSC 78
Hearing Date:	27 April 2021
DecisionDate:	27 April 2021
Before:	Murrell CJ
Decision:	Sentenced to two years and six months’ imprisonment to be released on recognizance after 15 months.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Use carriage service to access child pornography material – Use carriage service to access child abuse material – Possess or control child abuse material – Commonwealth offences
Legislation Cited:	Crimes Act 1914 (Cth) ss 16A(2), 17A, 20(1B), 23ZD Criminal Code Act 1995 (Cth) ss 474.19(1), 474.22(a), 474.22A
Cases Cited:	DPP v Smith [2010] VSCA 215 Lyons v The Queen [2019] VSCA 242 Miao v The Queen [2017] NSWCCA 89 Peters v The Queen [2018] NSWCCA 126 R v AX (No 3) [2020] ACTSC 334 R v De Leeuw [2015] NSWCCA 183 R v Pham [2015] HCA 39; 256 CLR 550 R v Porte [2015] NSWCCA 174; 252 A Crim R 277 R v Ramsay-Feeney [2021] ACTSC 5 R v Sutton [2017] ACTSC 95
Parties:	The Queen (Crown) Stephen John Barber (Offender)
Representation:	Counsel Z Hough (Crown) J Purnell SC (Offender)
Solicitors Commonwealth Director of Public Prosecutions (Crown) Aulich (Offender)
File Number:	SCC 22 of 2021

MURRELL CJ:

Introduction

On 4 February 2021, the offender pleaded guilty to six offences:

(a)Count 1: on 24 April 2011, using a carriage service to access child pornography material (10 Category 1 images, also particularised in Count 4);
(b)Count 2: between 1 February and 21 August 2019, using a carriage service to access child pornography material (used his Acer computer to access 122 child pornography files);
(c)Count 3: between 5 March and 21 April 2020, using a carriage service to access child abuse material (used his Acer computer to access 392 child abuse files);
(d)Count 4: on 23 April 2020, possessing or controlling child abuse material that had been obtained or accessed using a carriage service (had possession and control of 4,670 child abuse files across five devices);
(e)Count 5: between 17 and 18 November 2020, using a carriage service to access child abuse material (seven child abuse files on his mobile telephone); and
(f)Count 6: on 18 November 2020, possessing or controlling child abuse material obtained or accessed using a carriage service (the material subject of Count 5).

Counts 1 and 2 are offences against s 474.19(1)(i) of the Criminal Code Act 1995 (Cth) (Criminal Code) (now repealed). Counts 3 and 5 are offences against s 474.22(a)(i) of the Criminal Code. Counts 4 and 6 are offences against s 474.22A of the Criminal Code.

Each offence carries a maximum penalty of 15 years' imprisonment.

The offender has been in custody since 18 November 2020.

The pleas of guilty were entered at the earliest available opportunity and have benefited the administration of justice. I will allow a sentencing discount of 25 per cent.

Facts

The Australian Federal Police…

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 Barber

Details

AGLC: R v Barber [2021] ACTSC 78
Case: [2021] ACTSC 78
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the offender Stephen John Barber was convicted of six offences involving the use of a carriage service to access child pornography and child abuse material, and possessing or controlling child abuse material. Each offence carries a maximum penalty of 15 years' imprisonment. The offender pleaded guilty to all charges and has been in custody since 18 November 2020. The court accepted that the offender had entered his pleas at the earliest available opportunity and granted a 25 per cent discount on his sentence.

The court considered various factors in determining the appropriate sentence, including the objective seriousness of the offences, the offender's subjective features, and other relevant considerations. The offences involved a substantial quantity of child abuse material, with approximately half of the material being Category 1 (sexually suggestive) and a significant proportion being Category 4 (penetrative sexual activity) or Category 5 (sadism, bestiality, humiliating acts, torture, or child abuse). The offender's mental health problems, depression, and substance abuse disorders may have impacted his ability to inhibit impulses, but these factors did not significantly reduce his moral culpability or impact on the sentencing purposes.

The court considered the sentencing purposes, including general deterrence, personal deterrence, and rehabilitation. While the offender's prospects for rehabilitation are uncertain, he has expressed a desire to understand the reasons behind his offending conduct and is willing to accept treatment. The court also considered sentencing patterns throughout the Commonwealth to ensure reasonable sentencing consistency between different jurisdictions.

The court imposed the following sentences: four months' imprisonment for using a carriage service to access child pornography material, 11 months' imprisonment for using a carriage service to access child abuse material (two counts), two years' imprisonment for possessing or controlling child abuse material, and nine months' imprisonment for using a carriage service to access child abuse material and possessing or controlling child abuse material (two counts). The total sentence is two years and six months' imprisonment, with the offender to be released on recognizance after serving 15 months of the term of imprisonment, subject to certain conditions.

Finally, the court made an order that the items listed in paragraph [9] and the offender's Telstra mobile phone be forfeited to the Commonwealth.

Orders