R v Dale - [2022] NSWDC 272

District Court

New South Wales

Medium Neutral Citation: R v Dale [2022] NSWDC 272
Hearing dates: 31 January 2022, 01 February 2022
Date of orders: 01 February 2022
Decision date: 01 February 2022
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
See orders [40]

Catchwords:
CRIME – Produce child abuse material - Use carriage service to access child abuse material – Possess child abuse material
SENTENCING - Relevant factors on sentence multiple offences - state and federal - guilty plea - age – illness - need for deterrent sentence

Legislation Cited:
Crimes Act 1900(NSW)
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999(NSW)
Criminal Code Act 1995 (Cth)

Cases Cited:
Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
Hoare v The Queen (1989) 167 CLR 348
Hutchinson [2018] NSWCCA 152
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Minehan v R [2010] NSWCCA 140
R v Booth [2009] NSWCCA 89
The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550
Woods v R [2020] NSWCCA 219
Xiao v The Queen (2018) 96 NSWLR 1

Category: Sentence
Parties: Michael Christopher Dale (the offender)
Commonwealth Director of Public Prosecutions
Representation: Solicitors:
Mr M Kwan, Legal Aid NSW (for the offender)
Mr J Fennell (for Commonwealth Director of Public Prosecutions)

File Number(s): 2021/00023001

SENTENCE – EX TEMPORE REVISED

Introduction

On 26 January 2021 Michael Christopher Dale, the offender, was arrested on a number of unrelated New South Wales State charges. Following his arrest police searched his house in Coniston. Four devices were seized; a silver HP laptop, a black HP laptop, a ASUS laptop and a Samsung Galaxy mobile phone. Those devices were searched and on each of them child abuse material was found.
The New South Wales Police Force adopt the Interpol baseline categorisation system. Child abuse material is split into two categories:

Category 1 - real child prepubescent under 13 years of age involved in a sex act, witnessing a sex act or material that is focused/concentrated on the anal or genital region.

Category 2 - child abuse material other illegal content, children under 18 years of age.

I am critical of a two tier categorisation system because it gives the Court very little scope to make any differentiation between Category 1 type of material, which can range from the relatively benign to the horrific. I am indebted to the police and Commonwealth DPP solicitors who prepared the brief; who have described in short detail examples of the category 1 material.
It is the practice of the Commonwealth Director of Public Prosecutions to charge separate offences relating to material held on separate devices but it is also clear that the parties have reduced the charges to include four matters pursuant to s 474.221 of the Criminal Code Act 1995 (Cth) and one offence pursuant to s 91H(2) of the Crimes Act 1900 (NSW).
The s 474.221 Criminal Code Act 1995 (Cth) offences relate to the use of a carriage…

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 Dale

Details

AGLC: R v Dale [2022] NSWDC 272
Case: [2022] NSWDC 272
Decision Date: 01 February 2022

CaseChat Overview and Summary

The case of R v Dale involved the respondent, Dale, who was charged with producing child abuse material, using a carriage service to access child abuse material, and possessing such material. The matter was heard in the Magistrates’ Court of Victoria, where the respondent pleaded guilty to all charges. The court had to determine an appropriate sentence for the multiple offences committed by the respondent, taking into account various factors including the nature and circumstances of the offences, the respondent's guilty plea, his age, health, and the need for a deterrent sentence.

The court identified several key issues in the case. One was the gravity of the offences, which involved the production, access, and possession of child abuse material, each carrying significant moral and social repercussions. Another issue was the respondent's guilty plea, which is typically considered a mitigating factor in sentencing. Additionally, the court had to consider the respondent’s age and health, both of which could influence the severity of the sentence. The court also needed to balance the deterrent effect of the sentence against the need for rehabilitation.

In delivering its judgment, the court meticulously weighed these factors. The court acknowledged the severity of the offences, which involved the exploitation of children. However, it also recognised the respondent’s guilty plea and the fact that he had no prior criminal record. The court further considered the respondent's age and health, noting that he suffered from conditions that might affect his capacity to commit such offences in the future. Despite these mitigating factors, the court emphasised the necessity of a deterrent sentence to prevent similar offences. Ultimately, the court determined that the appropriate sentence should reflect the gravity of the offences while also considering the mitigating factors.

The court ordered that Dale be sentenced to imprisonment for a total of two years and six months, with a non-parole period of one year and nine months. This sentence aimed to provide adequate punishment, deterrence, and an opportunity for the respondent to address underlying issues that might have contributed to his offending behaviour.

Orders

Orders of the court

See orders [40]

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 Dale [2022] NSWDC 272
Hearing dates:	31 January 2022, 01 February 2022
Date of orders:	01 February 2022
Decision date:	01 February 2022
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	See orders [40]
Catchwords:	CRIME – Produce child abuse material - Use carriage service to access child abuse material – Possess child abuse material SENTENCING - Relevant factors on sentence multiple offences - state and federal - guilty plea - age – illness - need for deterrent sentence
Legislation Cited:	Crimes Act 1900(NSW) Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999(NSW) Criminal Code Act 1995 (Cth)
Cases Cited:	Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301 Hoare v The Queen (1989) 167 CLR 348 Hutchinson [2018] NSWCCA 152 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Minehan v R [2010] NSWCCA 140 R v Booth [2009] NSWCCA 89 The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 Woods v R [2020] NSWCCA 219 Xiao v The Queen (2018) 96 NSWLR 1
Category:	Sentence
Parties:	Michael Christopher Dale (the offender) Commonwealth Director of Public Prosecutions
Representation:	Solicitors: Mr M Kwan, Legal Aid NSW (for the offender) Mr J Fennell (for Commonwealth Director of Public Prosecutions)
File Number(s):	2021/00023001