R v Cowell - [2011] NSWDC 249

District Court

New South Wales

Medium Neutral Citation: R v COWELL [2011] NSWDC 249
Hearing dates: 1 April 2011
Decision date: 05 April 2011
Jurisdiction: Criminal
Before: KING SC DCJ
Decision:
Count 1: (Cth offence)
Convicted.
Sentenced to a total term of imprisonment of 9 months to commence on 7/2/11 and to expire on 6/11/11.
I make a recognizance release order that the prisoner be released on 6/8/11 on his own recognizance to be of good behaviour for a period of 3 months, and to forfeit the sum of $500 should he be in breach of that order.
Count 2: (State offence)
Special circumstances found.
Convicted.
Sentenced to a period of imprisonment for 2 years comprising a NPP of 1 year to commence on 7/5/11 and to expire on 6/5/12, and a balance of term for 1 year to commence on 7/5/12 and to expire on 6/5/13. To be released to parole on 6/5/12. Parole to be supervised by the NSWPPS for such period as is deemed appropriate by them within the balance of term, with particular regard to any treatment and/or counselling for sexual offending as deemed appropriate by the NSWPPS.
I recommend that the prisoner be referred to the Forensic Psychology Services for assessment to participate in the Sex offenders programs available to persons in prison

Catchwords: CRIMINAL LAW - Sentence - Commonwealth offence - Use carriage service to access child pornography - State offence - Produce, disseminate or possess child pornography
Legislation Cited: Criminal Code Act 1995
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999.
Cases Cited: Oliver (2002) EWCA Crim 2766;
R v Gent [2005] NSWCCA 370;
R v Booth [2009] NSWCCA 89;
Thomson and Houlton (2000) 49 NSWLR 383;
R v Bugeja [2001] NSWCCA 196;
Saddler v The Queen [2008] NSWDC 48;
Mouscas [2008] NSWCCA 181;
Hili v The Queen [2010] HCA 45
Category: Sentence
Parties: Crown
Christopher Martin Cowell
Representation: Crown: Department of Public Prosecutions (Cth)
Defence: Legal Aid Commission

File Number(s): 2010/289256

SENTENCE

HIS HONOUR: Christopher Cowell appears for sentence in respect of two offences. Count 1 is that he between 22 August 2009 and 23 August 2009 at Georges Hall in the State of New South Wales used a carriage service to access child pornography, namely thirty-four images located on a Samsung 640 gigabyte hard disk drive. That offence is contrary to s 474.19(1)(a)(i) of the Criminal Code Act 1995. The Act provides for a maximum term of imprisonment of ten years.

Count 2 is that he on 31 August 2010, at Georges Hall in the State of New South Wales, did possess child pornography, namely 4,435 images and seventy videos located on a DSE four gigabyte thumb drive, a Toshiba four gigabyte USB thumb drive, a Western Digital 1 Terabyte hard disk drive, an Apple iPhone 3G, an Apple iPhone 4 and eleven pages of cartoon drawings. The offence is contrary to s 91H(2) of the Crimes Act 1900. The Act provides for…

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 Cowell

Details

AGLC: R v Cowell [2011] NSWDC 249
Case: [2011] NSWDC 249
Decision Date: 05 April 2011

CaseChat Overview and Summary

The case of R v Cowell involved the defendant, who was convicted on two counts. The first count pertained to a Commonwealth offence where the defendant used a carriage service to access child pornography. The second count related to a state offence, involving the production, dissemination, or possession of child pornography. The case was heard in the Supreme Court of a relevant jurisdiction. The primary legal issues that the court needed to address involved the interpretation and application of relevant legislation concerning child pornography offences under both Commonwealth and state law. The court also had to determine the appropriate sentences for each offence, taking into account any special circumstances.

In determining the sentences, the court considered various factors, including the nature and severity of the offences, the defendant's criminal history, and the principles of justice and deterrence. The court found that the defendant's actions were egregious and warranted punishment. For the Commonwealth offence, the court sentenced the defendant to a total term of imprisonment of 9 months, to commence on a specified date and expire on another specified date. Additionally, the court made a recognizance release order, allowing the defendant to be released on their own recognizance under certain conditions. For the state offence, the court found special circumstances and sentenced the defendant to a period of imprisonment, which included a non-parole period and a balance of term, along with specific parole conditions. The court also recommended that the defendant be referred for assessment to participate in sex offender programs available to persons in prison.

The final orders of the court included the conviction and sentencing details for both counts, as well as the specific conditions for the recognizance release order and parole. The court's decision aimed to balance the need for punishment, deterrence, and rehabilitation for the defendant, while also ensuring public safety.

Orders

Orders of the court

Count 1: (Cth offence)

Convicted.

Sentenced to a total term of imprisonment of 9 months to commence on 7/2/11 and to expire on 6/11/11.

I make a recognizance release order that the prisoner be released on 6/8/11 on his own recognizance to be of good behaviour for a period of 3 months, and to forfeit the sum of $500 should he be in breach of that order.

Count 2: (State offence)

Special circumstances found.

Convicted.

Sentenced to a period of imprisonment for 2 years comprising a NPP of 1 year to commence on 7/5/11 and to expire on 6/5/12, and a balance of term for 1 year to commence on 7/5/12 and to expire on 6/5/13. To be released to parole on 6/5/12. Parole to be supervised by the NSWPPS for such period as is deemed appropriate by them within the balance of term, with particular regard to any treatment and/or counselling for sexual offending as deemed appropriate by the NSWPPS.

I recommend that the prisoner be referred to the Forensic Psychology Services for assessment to participate in the Sex offenders programs available to persons in prison

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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Medium Neutral Citation:	R v COWELL [2011] NSWDC 249
Hearing dates:	1 April 2011
Decision date:	05 April 2011
Jurisdiction:	Criminal
Before:	KING SC DCJ
Decision:	Count 1: (Cth offence) Convicted. Sentenced to a total term of imprisonment of 9 months to commence on 7/2/11 and to expire on 6/11/11. I make a recognizance release order that the prisoner be released on 6/8/11 on his own recognizance to be of good behaviour for a period of 3 months, and to forfeit the sum of $500 should he be in breach of that order. Count 2: (State offence) Special circumstances found. Convicted. Sentenced to a period of imprisonment for 2 years comprising a NPP of 1 year to commence on 7/5/11 and to expire on 6/5/12, and a balance of term for 1 year to commence on 7/5/12 and to expire on 6/5/13. To be released to parole on 6/5/12. Parole to be supervised by the NSWPPS for such period as is deemed appropriate by them within the balance of term, with particular regard to any treatment and/or counselling for sexual offending as deemed appropriate by the NSWPPS. I recommend that the prisoner be referred to the Forensic Psychology Services for assessment to participate in the Sex offenders programs available to persons in prison
Catchwords:	CRIMINAL LAW - Sentence - Commonwealth offence - Use carriage service to access child pornography - State offence - Produce, disseminate or possess child pornography
Legislation Cited:	Criminal Code Act 1995 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999.
Cases Cited:	Oliver (2002) EWCA Crim 2766; R v Gent [2005] NSWCCA 370; R v Booth [2009] NSWCCA 89; Thomson and Houlton (2000) 49 NSWLR 383; R v Bugeja [2001] NSWCCA 196; Saddler v The Queen [2008] NSWDC 48; Mouscas [2008] NSWCCA 181; Hili v The Queen [2010] HCA 45
Category:	Sentence
Parties:	Crown Christopher Martin Cowell
Representation:	Crown: Department of Public Prosecutions (Cth) Defence: Legal Aid Commission
File Number(s):	2010/289256