R v CR - [2019] NSWDC 884

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v CR [2019] NSWDC 884
Hearing dates: 9 August, 3 December 2019
Date of orders: 03 December 2019
Decision date: 03 December 2019
Jurisdiction: Criminal
Before: Wilson SC DCJ
Decision:
Full time custodial sentence. Decision at [113] – [115]

Catchwords: CRIME – sentencing – child abuse material – hardship to family
Legislation Cited: Child Protection (Offenders Registration) Act 2000
Crimes Act 1900 ss 91G; 91H
Crimes (Sentencing Procedure) Act 1999 ss 3A; 5; 21A
Cases Cited: Benitez v R [2006] NSWCCA 21
Bugmy v The Queen (2013) 249 CLR 571
Dipangkear v R [2010] NSWCCA 156
Lee v R [2019] NSWCCA 15
Markarian v The Queen (2005) 228 CLR 357
Minehan v R [2010] NSWCCA 140
Muldrock v The Queen (2011) 244 CLR 120
R v Henry (1999) 46 NSWLR 346
R v Hutchinson [2018] NSWCCA 152
Tepania v R [2018] NSWCCA 247
Category: Sentence
Parties: Regina (Crown)
CR (Offender)
Representation:
Counsel:
B Narula (Offender)
Solicitors:
ODPP (Crown)
Blair Criminal Lawyers (Offender)

File Number(s): 2011/00364001; 2016/00148663; 2017/00080218
Publication restriction: Non-Publication Order with regards to the name of the Offender and any information which may identify or lead to identification of victims

Judgment

The Offender appears before the Court today for sentencing in relation to a number of serious matters. He is facing four principal offences and has attaching to at least one of them a charge on a Form 1 document.
The first charge is producing child abuse material in breach of s91H(2) of the Crimes Act. That carries a maximum penalty of ten years imprisonment and that charge is sequence 4 of charge number H ending 717.
The second charge is use child under the age of 14 to produce child abuse material, in breach of s91G(1)(a) of the Crimes Act. That carries a maximum penalty of 14 years imprisonment, and a standard non-parole period of six years. That is sequence 2 in charge number H ending 274.
The third charge is the same as the second, that being use child under the age of 14 to produce child abuse material, in breach of s91G(1)(a) of the Crimes Act. The maximum penalty is 14 years imprisonment with a standard non-parole period of six years. That is sequence 3 of charge number H ending 274.
The fourth charge for sentence is possessing child abuse material in breach of s91H(2) of the Crimes Act which carried a maximum penalty of ten years imprisonment. That is sequence 4 of charge number H ending 274.
As I mentioned, there is also a charge being sequence 3 of charge number ending 117. That is possess child abuse material, on a Form 1 document that carries a maximum penalty of ten years imprisonment, and attaches to sequence 4 in charge number H ending 717.
There are no related or backup offences.
I will sign the Form 1 document certifying and confirming that I have taken that charge into account in sentencing…

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 CR

Details

AGLC: R v CR [2019] NSWDC 884
Case: [2019] NSWDC 884
Decision Date: 03 December 2019

CaseChat Overview and Summary

The matter of R v CR was heard in the County Court of Victoria, with the defendant, CR, facing charges related to the possession of child abuse material. The nature of the dispute centred around the appropriate sentence to be imposed, with consideration given to the impact on CR’s family, particularly the hardship they would face. The prosecution argued for a full-time custodial sentence, while CR’s defence emphasised the significant impact on his family, including the well-being of his children.

The legal issues the court needed to decide included the appropriate sentencing principles to apply, the relevance of the impact on CR’s family, and the necessity of a custodial sentence given the circumstances. The court had to balance the need for deterrence and denunciation with the potential for rehabilitation and the personal circumstances of CR and his family. The court considered whether the impact on CR’s family could sufficiently mitigate the offence’s gravity to warrant a non-custodial sentence.

In delivering the judgment, the court recognised the severity of the offence and the importance of deterrence and denunciation in cases involving child abuse material. The court determined that the nature of the material and the impact on the victims necessitated a custodial sentence. The hardship to CR’s family, while acknowledged, was not deemed sufficient to outweigh the need for punishment and deterrence. The court concluded that a full-time custodial sentence was appropriate, with detailed reasoning provided at [113] – [115] of the judgment.

The final orders of the court mandated a full-time custodial sentence for CR, reflecting the court’s determination that the gravity of the offence required such a sentence to adequately address the issues of deterrence and denunciation. The court did not consider the personal hardships of CR’s family to be sufficient grounds to depart from this conclusion.

Orders

Orders of the court

Full time custodial sentence. Decision at [113] – [115]

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 CR [2019] NSWDC 884
Hearing dates:	9 August, 3 December 2019
Date of orders:	03 December 2019
Decision date:	03 December 2019
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	Full time custodial sentence. Decision at [113] – [115]
Catchwords:	CRIME – sentencing – child abuse material – hardship to family
Legislation Cited:	Child Protection (Offenders Registration) Act 2000 Crimes Act 1900 ss 91G; 91H Crimes (Sentencing Procedure) Act 1999 ss 3A; 5; 21A
Cases Cited:	Benitez v R [2006] NSWCCA 21 Bugmy v The Queen (2013) 249 CLR 571 Dipangkear v R [2010] NSWCCA 156 Lee v R [2019] NSWCCA 15 Markarian v The Queen (2005) 228 CLR 357 Minehan v R [2010] NSWCCA 140 Muldrock v The Queen (2011) 244 CLR 120 R v Henry (1999) 46 NSWLR 346 R v Hutchinson [2018] NSWCCA 152 Tepania v R [2018] NSWCCA 247
Category:	Sentence
Parties:	Regina (Crown) CR (Offender)
Representation:	Counsel: B Narula (Offender) Solicitors: ODPP (Crown) Blair Criminal Lawyers (Offender)
File Number(s):	2011/00364001; 2016/00148663; 2017/00080218
Publication restriction:	Non-Publication Order with regards to the name of the Offender and any information which may identify or lead to identification of victims