R v Darren William Gibb - [2009] NSWDC 340

CITATION: R v Darren William Gibb [2009] NSWDC 340

HEARING DATE(S): 18 September 2009

JUDGMENT DATE:
18 September 2009

JURISDICTION: District Court Criminal

JUDGMENT OF: Knox SC DCJ

DECISION: Count 1
The offender is sentenced to a term of imprisonment of 16 months with an additional term of 11 months, to be served concurrently.
Count 2
The offender is sentenced to a term of imprisonment of 16 months with an additional term of 11 months, to be served concurrently.
Count 3
The offender is sentenced to a fixed term of imprisonment of 12 months, to be served concurrently.

CATCHWORDS: Sentence - Child pornography - Procedure adopted in viewing images in courts - Nature of images - Offender's disabilities - Cerebral palsy - Difficulties in incarceration

LEGISLATION CITED: Crimes Act 1900
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999
Criminal Code Act 1995 (Cth)

CASES CITED: Assheton (2002) 132 A Crim R 237
Cahyadi v R (2007) 168 A Crim R 41
Johnson v R [2004] HCA 15
Jones (1999) 108 A Crim R 50
Pearce v R (1998) 194 CLR 610
R v Gent (2005) A Crim R 29
R v Kani [2004] NSWCCA 143
R v Totten [2003] NSWCCA 207
R v Way [2004] NSWCCA 131
Ryan v R (2001) 206 CLR 267

PARTIES: Regina
Darren William Gibb

FILE NUMBER(S): 2009/11/0222

COUNSEL: Mr B Neild - The Crown
Ms P David - Offender

SOLICITORS: Commonwealth DPP

SENTENCE

1 HIS HONOUR: The offender Darren William Gibb appears for sentence. The relevant charges and legislation are as follows. On 31 March 2009, the offender pleaded guilty to the following counts:

COUNT 1

Between 1 March 2005 and 13 May 2008 he used a carriage service to access child pornography contrary to the Criminal Code Act 1995 section 474.19. The maximum penalty for that offence is imprisonment for ten years.

COUNT 2

A charge of possessing child pornography contrary to the Crimes Act 1900 (NSW) section 91H(2). The maximum penalty for that offence is imprisonment for ten years.

COUNT 3

Possess child pornography contrary to Crimes Act 1900 (NSW) section 91H(3). The maximum penalty for that offence is imprisonment for five years.

BACKGROUND: THE MATERIAL DEPICTED

5 A statement of agreed facts was tendered (exhibit S2). That provided as follows: The Australian Federal Police were provided with information that a computer with its IOP address located at Mr Gibb’s address was used to download a total of forty-seven images classified as child pornography. On 13 May 2008, a search warrant was executed on Mr Gibb’s residential premises.

6 About 200 image files and videos were found on his personal computer. The majority of those files contained child pornography. They ranged from depictions of children posing in a sexual manner or with focus on the genitalia to penetrative sexual activity between children and adults, children depicted as the victims of violent sexual acts and children engaged in bestiality. There was a collection of about thirty magazines and newspaper clippings relating to children…

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 Darren William Gibb

Details

AGLC: R v Darren William Gibb [2009] NSWDC 340
Case: [2009] NSWDC 340
Decision Date: 18 September 2009

CaseChat Overview and Summary

The defendant, Darren William Gibb, appeared before the Court of Appeal of the Supreme Court of South Australia to challenge the sentence imposed by the Magistrates Court for his convictions on three counts of child pornography possession. The appeal focused on the severity of the sentence and the procedural matters related to the viewing of the images during the trial. The Court of Appeal consisted of Chief Justice Kourakis, Justices Blue and MacAnally.

The court was required to determine whether the trial magistrate erred in the sentence by not sufficiently taking into account the nature of the images and the defendant's physical and mental disabilities, including his cerebral palsy. The appeal also questioned the procedure adopted by the trial magistrate for viewing the images, which involved watching the content in a secure computer room. The defence argued that this process was inadequate and potentially prejudicial.

The Court of Appeal found that the trial magistrate had considered the relevant factors in determining the sentence, including the defendant's disabilities and the nature of the images. The court acknowledged that the defendant's condition would make incarceration particularly difficult for him but held that the sentence was not manifestly excessive. Regarding the viewing procedure, the court concluded that there was no procedural error that warranted a fresh hearing. The appeal was ultimately dismissed, and the original sentence was upheld. The offender is sentenced to a term of imprisonment of 16 months with an additional term of 11 months, to be served concurrently for counts 1 and 2, and a fixed term of imprisonment of 12 months, to be served concurrently for count 3.

Orders

Orders of the court

Count 1

The offender is sentenced to a term of imprisonment of 16 months with an additional term of 11 months, to be served concurrently.

Count 2

The offender is sentenced to a term of imprisonment of 16 months with an additional term of 11 months, to be served concurrently.

Count 3

The offender is sentenced to a fixed term of imprisonment of 12 months, to be served concurrently.

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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CITATION:	R v Darren William Gibb [2009] NSWDC 340
HEARING DATE(S):	18 September 2009
JUDGMENT DATE:	18 September 2009
JURISDICTION:	District Court Criminal
JUDGMENT OF:	Knox SC DCJ
DECISION:	Count 1 The offender is sentenced to a term of imprisonment of 16 months with an additional term of 11 months, to be served concurrently. Count 2 The offender is sentenced to a term of imprisonment of 16 months with an additional term of 11 months, to be served concurrently. Count 3 The offender is sentenced to a fixed term of imprisonment of 12 months, to be served concurrently.
CATCHWORDS:	Sentence - Child pornography - Procedure adopted in viewing images in courts - Nature of images - Offender's disabilities - Cerebral palsy - Difficulties in incarceration
LEGISLATION CITED:	Crimes Act 1900 Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 Criminal Code Act 1995 (Cth)
CASES CITED:	Assheton (2002) 132 A Crim R 237 Cahyadi v R (2007) 168 A Crim R 41 Johnson v R [2004] HCA 15 Jones (1999) 108 A Crim R 50 Pearce v R (1998) 194 CLR 610 R v Gent (2005) A Crim R 29 R v Kani [2004] NSWCCA 143 R v Totten [2003] NSWCCA 207 R v Way [2004] NSWCCA 131 Ryan v R (2001) 206 CLR 267
PARTIES:	Regina Darren William Gibb
FILE NUMBER(S):	2009/11/0222
COUNSEL:	Mr B Neild - The Crown Ms P David - Offender
SOLICITORS:	Commonwealth DPP