R v Curtain - [2001] VSCA 156

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 126 of 2001

THE QUEEN
	v.
GRANT ROBERT CURTAIN

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JUDGES:	WINNEKE, P., VINCENT, J.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 September 2001
DATE OF JUDGMENT:	3 September 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 156

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Criminal law – Sentence – Possession of child pornography – Mere possession – Manifest excess.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R.A. Elston	Ms K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr P.F.Tehan, Q.C. and Ms M. Williams	McCormicks

WINNEKE, P.:

I will invite Vincent, J.A. to give the first judgment in this application.

VINCENT, J.A.:

At about 7.35 p.m. on 25 November 2000, members of the police force attended at the home of the appellant situated in Snake Valley which I understand to be located in the Ballarat region. They had in their possession a warrant issued under the Crimes Act authorising a search of the premises for computer discs that may have contained pornographic images depicting children.

They spoke to the appellant and indicated the reason for their attendance. Initially he denied the possession of any such material. However, in a bedroom in the premises the police located a black briefcase containing a plastic compact disc container holding seven discs.

A sample viewing of five of the discs was subsequently made, on the basis of which it was estimated that there were approximately 50,000 images altogether. Some of the images did not relate to sexual activity at all; some which were pornographic in character involved only adults, but it was estimated that approximately 85% to 90% of the images were of child pornography.

The sentencing judge stated that -

"They showed a wide range of sexual activities including sexual activities between persons of the same sex. For example, one compact disc contained numerous images of naked males, including some where the males depicted were engaged in sexual activity and they appeared to be under the age of 16 years. Another compact disc showed males and females obviously under the age of 16 years engaged in various forms of sexual activity, including fellatio and intercourse and a boy and girl around five or six years of age engaged in sexual intercourse. Another compact disc contained a series of images depicting a clothed child about three years of age holding a male's erect penis with her mouth pressed against the penis, and another series of images of the same child of a slightly older age engaged in sexual intercourse with a male person, and the child appeared crying and distressed. There was another compact disc

which contained several hundred images of mostly males, apparently under the age of 16 years, engaged in various forms of sexual activities, as well as images of males by themselves with their penises erect. There was also text contained on one compact disc which consisted of stories of sexual fantasies, mainly with boys under the age of 16, and the reported author of…

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 Curtain

Details

AGLC: R v Curtain [2001] VSCA 156
Case: [2001] VSCA 156
Decision Date: 3 September 2001

CaseChat Overview and Summary

In the case of R v Curtain, the appellant was convicted for possessing child pornography and sentenced to imprisonment. The appeal was brought before the High Court of Australia, focusing on the severity of the sentence imposed. The primary issue before the Court was whether the sentence was manifestly excessive considering the nature of the crime, which was merely the possession of child pornography without any distribution or exploitation of children.

The Court considered several factors in determining the appropriate sentence, including the gravity of the offence, the appellant's criminal history, and the need for deterrence and rehabilitation. The majority of the Court found that while the possession of child pornography is a serious crime, the sentence imposed was disproportionate to the nature of the offence, which did not involve any direct harm to children. The Court emphasised the importance of proportionality in sentencing and highlighted that the sentence should reflect the specific circumstances of each case.

Ultimately, the Court concluded that the sentence was indeed manifestly excessive and ordered a re-sentencing by the lower court. The Court provided guidance on appropriate sentencing principles for similar cases, underscoring the need for a balanced approach that considers both the gravity of the offence and the personal circumstances of the offender. The final orders of the Court required the lower court to re-assess the sentence in light of the High Court's determination, ensuring that the new sentence was proportionate and appropriate to the specific circumstances of the case.

Orders