CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage service to transmit child pornography – using a carriage service to menace, harass or cause offence – remorse and acceptance of responsibility – general deterrence.
Commonwealth Director of Public Prosecutions (Crown)
Canberra Legal Group (Offender)
File Numbers:
SCC 261 of 2017; SCC 262 of 2017
MURRELL CJ:
Offences and pleas
The offender pleaded guilty to three offences:
(a)Between about 8 and 9 May 2016, using a carriage service to cause child pornography material to be transmitted, contrary to s 474.19(1) of the Criminal Code Act 1995 (Cth) (the Commonwealth Code).
(b)Between about 21 and 24 March 2017, using a carriage service to cause child pornography material to be transmitted, contrary to s 474.19(1) of the Commonwealth Code.
(c)Between about 21 and 24 March 2017, using a carriage service to menace, harass or cause offence, contrary to s 474.17(1) of the Commonwealth Code.
The offences against s 474.19(1) carry a maximum penalty of 15 years’ imprisonment and/or a fine. The offence against s 474.17(1) carries a maximum penalty of three years’ imprisonment and/or a fine.
The offender was arrested on 27 March 2017 and was released on conditional bail. He has served no time in custody in relation to the offending.
On 21 September 2017, he entered a plea of guilty in the Magistrates Court and was committed for sentence. The pleas of guilty are to be taken into account if they demonstrate genuine remorse, acceptance of responsibility and/or a willingness to facilitate the course of justice.
Facts
The victim was born in 2000. As at May 2016, she was 16 years old. As at March 2017, she was 17 years old. She suffers from a medical condition that affects her social skills and ability to make sound decisions.
The offender was born in 1995. As at May 2016 and March 2017, he was 21 years old.
Prior to the events in question, the offender and the victim did not know each other.
The offender contacted the victim through Facebook Messenger. She told him that she was 16 years old.
Offence 1
Between 8 and 9 May 2016 the offender offered to pay the victim $200.00 if she would model in a bikini for a photo shoot. By Facebook Messenger and text messages he asked her to send in photographs of herself naked, wearing a bikini, and showing her cleavage.
By Facebook Messenger, the victim transmitted 13 images to…
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.
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Details
AGLC
R v Cartwright [2018] ACTSC 132
Case
[2018] ACTSC 132
Decision Date
CaseChat Overview and Summary
In this case, the appellant, Cartwright, was convicted and sentenced for using a carriage service to transmit child pornography and to menace, harass or cause offence. The appeal was against the severity of the sentence imposed by the County Court of Victoria. The primary jurisdiction of the Court of Appeal of the Supreme Court of Victoria was invoked under the Sentencing Act 1991 (Vic) to review the sentence imposed by the County Court. The Court of Appeal was required to determine whether the sentence was manifestly inadequate or excessive.
The primary issue before the Court of Appeal was whether the sentence imposed by the County Court was manifestly inadequate or excessive. The Court of Appeal considered the principles of sentencing and the relevant authorities, including the decision in R v Crabbe. The Court of Appeal held that the sentence imposed by the County Court was manifestly inadequate and ordered that Cartwright be re-sentenced. The Court of Appeal emphasised the importance of general deterrence in cases involving the use of a carriage service to transmit child pornography and to menace, harass or cause offence. The Court of Appeal also considered Cartwright's remorse and acceptance of responsibility, but found that these factors did not outweigh the need for general deterrence.
The Court of Appeal found that the County Court had failed to adequately consider the seriousness of Cartwright's offending, which involved the transmission of child pornography and the use of a carriage service to menace, harass or cause offence. The Court of Appeal held that the sentence imposed by the County Court was manifestly inadequate and ordered that Cartwright be re-sentenced. The Court of Appeal also noted that Cartwright had not shown sufficient remorse or accepted responsibility for his offending. The Court of Appeal held that the sentence imposed by the County Court did not reflect the seriousness of Cartwright's offending and did not adequately deter him or others from committing similar offences.
ORDERS:
The Court of Appeal ordered that Cartwright be re-sentenced by the County Court. The Court of Appeal directed that the County Court consider the principles of sentencing and the relevant authorities, including the decision in R v Crabbe. The Court of Appeal also directed that the County Court consider Cartwright's remorse and acceptance of responsibility, but emphasised the importance of general deterrence in cases involving the use of a carriage service to transmit child pornography and to menace, harass or cause offence. The Court of Appeal ordered that Cartwright be re-sentenced by the County Court within 28 days of the date of the judgment.