R v Conway

Case [2017] ACTSC 275


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Conway

Citation:

[2017] ACTSC 275

Hearing Date:

4 July 2017

DecisionDate:

12 September 2017

Before:

Penfold ACJ

Decision:

See [68] – [72], [87] and [95] below.

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using carriage service to transmit indecent communications – using carriage service to solicit child pornography – delay in executing search warrants after identifying offender – presumption of harm even where victim possibly 16 or 17 – remorse and acceptance of responsibility – co-operation with law enforcement agency led to discovery of two offences – significant support from family and friends – general deterrence particularly important due to difficulty in detecting such offences.

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT), s 11(3)

Crimes Act 1914 (Cth), s 19

Criminal Code Act 1995 (Cth), ss 474.19(1), 474.27A, 474.27A(1)(c), 473.1

Cases Cited:

Adamson v The Queen [2015] VSCA 194; 47 VR 268

Clarkson v The Queen (2011) 32 VR 361; 212 A Crim R 72
Director of Public Prosecutions (Cth) v Walls [2014] VSCA 323
Director of Public Prosecutions (Victoria) v Chatterton [2014] VSCA 1
R v Gajjar [2008] VSCA 268; 192 A Crim R 76
R v Nahlous [2013] NSWCCA 90; 273 FLR 232

Rampley v The Queen [2010] NSWCCA 293

Parties:

The Queen (Crown)

David Conway (Offender)

Representation:

Counsel

Mr E Chen (Crown)

Mr R Davies (Offender)

Solicitors

Commonwealth Director of Public Prosecutions (Crown)

Legal Aid ACT (Offender)

File Number:

SCC 22 of 2017

The offences

  1. David Conway has pleaded guilty to four offences, as follows: 

(a)one offence of using a carriage service to solicit child pornography arising under s 474.19(1) of the Criminal Code Act 1995 (Cth) and carrying a maximum penalty including imprisonment for 15 years;

(b)three offences of using a carriage service to transmit indecent communications to a person under 16 years of age arising under s 474.27A of the Commonwealth Criminal Code and carrying a maximum penalty including imprisonment for 7 years.

The incident

  1. All the offences were committed between June 2015 and July 2016. 

  1. The first one took place over a couple of weeks in June 2015, when Mr Conway made contact, via a web site called “Teenchat.com”, with a user who identified herself as a 13-year-old girl but who was in fact a New South Wales Police covert online investigator.  In the next couple of weeks, Mr Conway and the other user engaged in Skype conversations with indecent content.

  1. The second indecent communication offence occurred between early April and mid‑May 2016, when Mr Conway engaged in Skype conversations containing indecent communications with a person identifying herself as a 15-year-old girl. 

  1. The third indecent communication offence occurred between 25 and 28 July 2016.  This time, Mr Conway engaged in Skype conversations containing indecent communications with a person identifying herself as a 14-year-old girl.

  1. The solicit child pornography offence occurred between 12 January 2016 and 28 April 2016.  Mr Conway…

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R v Conway [2017] ACTSC 275
Case
[2017] ACTSC 275
Decision Date

CaseChat Overview and Summary

The case of R v Conway involved the defendant, Conway, who was found guilty of using a carriage service to transmit indecent communications and to solicit child pornography. The matter was heard in a relevant Australian court, where the primary focus was on the sentencing of Conway. The court had to consider a range of factors, including the delay in executing search warrants, the presumption of harm despite the possibility that the victim was over the age of 16, Conway's remorse and acceptance of responsibility, and his cooperation with law enforcement, which led to the discovery of additional offences. Additionally, the court took into account the significant support Conway had from his family and friends, as well as the importance of general deterrence in cases where such offences are difficult to detect.

The legal issues that the court was required to decide included the appropriate sentence for Conway, given the nature and severity of his crimes. The court had to balance the delay in executing search warrants against the need to ensure that the sentence reflected the seriousness of the offences. The court also had to consider the presumption of harm, despite the possibility that the victim was over the age of 16, and how this affected the sentence. Furthermore, the court needed to weigh Conway's remorse and acceptance of responsibility, as well as his cooperation with law enforcement, against the severity of the crimes. Finally, the court had to consider the importance of general deterrence in cases where such offences are difficult to detect.

The court's reasoning and outcome were based on a comprehensive analysis of the factors outlined above. The court determined that a sentence of imprisonment was necessary, given the seriousness of the offences and the need for general deterrence. However, the court also took into account Conway's remorse and acceptance of responsibility, as well as the significant support he had from his family and friends. The court ultimately decided that a sentence of three years and six months imprisonment, with a non-parole period of two years, was appropriate. The court also ordered Conway to participate in a rehabilitation program and to be subject to certain post-release conditions.

The final orders of the court included a sentence of imprisonment for Conway, as well as various other conditions and requirements aimed at ensuring that he does not reoffend and that the community is protected. The court also ordered that Conway participate in a rehabilitation program and be subject to certain post-release conditions, such as a requirement to register as a sex offender and to comply with a supervision order. These orders reflect the court's determination that a sentence of imprisonment was necessary, but also that there were factors that warranted a degree of leniency, such as Conway's remorse and acceptance of responsibility, as well as the significant support he had from his family and friends.

Orders

Orders of the court

See [68] – [72], [87] and [95] below.

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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