R v Cruz; ex parte - [2010] QCA 90

SUPREME COURT OF QUEENSLAND

CITATION:

R v Cruz; ex parte Cth DPP [2010] QCA 90

PARTIES:

R
v
CRUZ, Ireneo Reyes
(respondent)
EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
(appellant)

FILE NO/S:

CA No 328 of 2009
DC No 3335 of 2009

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by Cwth DPP

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

23 April 2010

DELIVERED AT:

Brisbane

HEARING DATE:

7 April 2010

JUDGES:

Holmes, Muir and Chesterman JJA
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – EXERCISE OF DISCRETION – GENERALLY – where respondent pleaded guilty to one count of importing child pornography material – where respondent entered Australia on a three day transit visa en route to employment on commercial shipping – where substantial material located on electronic storage devices – where 25 per cent of the material was produced by the respondent himself – where trial judge took into consideration the respondent’s language difficulties and commensurate inability to fully participate in recreational activities during incarceration – where the respondent had no family support in Australia –where the respondent’s overseas based family was dependent on his income – whether the trial judge attached too much weight to the respondent’s mitigating circumstances – whether sentence proper

Customs Act 1901 (Cth), s 16(2)(p), s 233BAB(5)
Crimes Act 1914 (Cth), s 16A

James v R [2009] NSWCCA 62, considered
Mouscas v R [2008] NSWCCA 181, considered
R v Cook; ex parte A-G (Qld) [2004] QCA 469, considered
R v Ferrer-Esis (1991) 55 A Crim R 231, considered
R v Fulop [2009] VSCA 296, considered
R v Oliver [2003] 1 Cr App R 28; [2002] EWCA Crim 2766, considered
R v Rogers [2009] QCA 10, considered

COUNSEL:

G R Rice for the applicant
P E Smith for the respondent

SOLICITORS:

Director of Public Prosecutions (Commonwealth) for the applicant
Fisher Dore Lawyers for the respondent

HOLMES JA: The respondent was convicted on his own plea of guilty, on an ex officio indictment, of one count of importing child pornography material contrary to s 233BAB(5) of the Customs Act 1901 (Cth). He was sentenced to three years imprisonment, to be released after serving 12 months upon giving security by recognizance in the sum of $1,000 to be of good behaviour for three years. (He was taken into custody on 29 April 2009, and has served almost the entire custodial component of the sentence.) The Commonwealth Director of Public Prosecutions appeals that sentence on the ground that it is manifestly inadequate.

The offence

The respondent, a Filipino citizen, worked as a chief engineer on commercial shipping. In April 2009, he arrived at the Brisbane international airport on a three day transit visa, intending to sign on to a merchant vessel at Gladstone. Customs officers searching his baggage found child pornography material on a…

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 Cruz; ex parte

Details

AGLC: R v Cruz; ex parte [2010] QCA 90
Case: [2010] QCA 90
Decision Date: 23 April 2010

CaseChat Overview and Summary

The case before the court was an appeal against sentence by the Crown, challenging the decision of the trial judge in R v Cruz. The respondent, who had pleaded guilty to one count of importing child pornography material, had entered Australia on a three-day transit visa to take up employment on commercial shipping. A substantial amount of material was found on the respondent's electronic storage devices, with 25 per cent of it being produced by the respondent himself. The trial judge had taken into consideration various mitigating factors, including the respondent's language difficulties, his limited participation in recreational activities during incarceration, the absence of family support in Australia, and the fact that his overseas family depended on his income.

The primary legal issues before the court were whether the trial judge had attached too much weight to the respondent's mitigating circumstances and whether the sentence imposed was proper. The Crown argued that the trial judge had placed undue emphasis on these factors, resulting in an inadequate sentence that did not reflect the gravity of the offence. The court was required to carefully consider the balance between the respondent's personal circumstances and the need to deter and punish the crime of importing child pornography.

The court dismissed the appeal, affirming that the trial judge had appropriately exercised their discretion in sentencing. The trial judge had taken into account all relevant factors, including the respondent's language difficulties, lack of support, and the impact on his overseas family. The court held that the sentence was neither manifestly excessive nor inadequate, and that the trial judge's consideration of the respondent's personal circumstances did not constitute an error of law or a significant departure from the principles of sentencing in such cases.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Cruz; ex parte Cth DPP [2010] QCA 90
PARTIES:	R v CRUZ, Ireneo Reyes (respondent) EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS (appellant)
FILE NO/S:	CA No 328 of 2009 DC No 3335 of 2009
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by Cwth DPP
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	23 April 2010
DELIVERED AT:	Brisbane
HEARING DATE:	7 April 2010
JUDGES:	Holmes, Muir and Chesterman JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – EXERCISE OF DISCRETION – GENERALLY – where respondent pleaded guilty to one count of importing child pornography material – where respondent entered Australia on a three day transit visa en route to employment on commercial shipping – where substantial material located on electronic storage devices – where 25 per cent of the material was produced by the respondent himself – where trial judge took into consideration the respondent’s language difficulties and commensurate inability to fully participate in recreational activities during incarceration – where the respondent had no family support in Australia –where the respondent’s overseas based family was dependent on his income – whether the trial judge attached too much weight to the respondent’s mitigating circumstances – whether sentence proper Customs Act 1901 (Cth), s 16(2)(p), s 233BAB(5) Crimes Act 1914 (Cth), s 16A James v R [2009] NSWCCA 62, considered Mouscas v R [2008] NSWCCA 181, considered R v Cook; ex parte A-G (Qld) [2004] QCA 469, considered R v Ferrer-Esis (1991) 55 A Crim R 231, considered R v Fulop [2009] VSCA 296, considered R v Oliver [2003] 1 Cr App R 28; [2002] EWCA Crim 2766, considered R v Rogers [2009] QCA 10, considered
COUNSEL:	G R Rice for the applicant P E Smith for the respondent
SOLICITORS:	Director of Public Prosecutions (Commonwealth) for the applicant Fisher Dore Lawyers for the respondent