R v Cardwell

[2021] QCA 112

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cardwell [2021] QCA 112

PARTIES:

R
v
CARDWELL, Keith
(applicant)

FILE NO/S:

CA No 184 of 2020
DC No 397 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Cairns – Date of Sentence: 9 September 2020 (Fantin DCJ)

DELIVERED ON:

21 May 2021

DELIVERED AT:

Brisbane

HEARING DATE:

8 April 2021

JUDGES:

Sofronoff P and Mullins JA and Bradley J

ORDER:

Application is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to count 1 and count 2 of using a carriage service for child pornography and child abuse material under s 474.19 and s 474.22 of the Criminal Code 1995 (Cth) – where the applicant also pleaded guilty to count 3 of possessing child exploitation material contrary to s 228D(1)(b) of the Criminal Code 1899 (Qld) – where the applicant deleted the images, assisted the police in locating the material, expressed remorse to a psychologist, received positive character references from friends and associates and had no criminal history – where the offending on count 3 took place on a single day whereas the offending on count 1 and count 2 took place over a period of three and a half months – where count 3 involved still images, whereas count 1 had at least one video – where the maximum penalty for count 3 was lower by one year than the Commonwealth offences of count 1 and count 2 – where the applicant appeals the sentence on count 3 on the grounds that it was manifestly excessive – whether the primary Judge erred in finding that count 3 was the most serious of the three charges which rendered the sentence manifestly excessive

R v Vantoosten[2009] QCA 54, cited

COUNSEL:

C F C Wilson for the applicant
S J Bain for the respondent

SOLICITORS:

Phillips Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

1. SOFRONOFF P: The applicant pleaded guilty to one count of using a carriage service for child pornography material contrary to s 474.19 of the Criminal Code1995 (Cth) and one count of using a carriage service for child abuse material contrary to s 474.22 of the Commonwealth Code. Both offences carry a maximum penalty of 15 years’ imprisonment. He also pleaded guilty to one count of possessing child exploitation material contrary to s 228D(1)(b) of the Criminal Code 1899 (Qld). That offence carries a maximum penalty of 14 years’ imprisonment. Fantin DCJ sentenced the applicant to imprisonment for 12 months on the Commonwealth charges and ordered that he be released forthwith on entering into recognizance in the sum of $500 on condition that he be of good behaviour for a period of two years. For the State offence, her Honour sentenced the applicant to imprisonment for 15 months to be suspended after he…