R v Devenish - [2016] QDC 236

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Devenish [2016] QDC 236

PARTIES:

THE QUEEN

v

LYLE JAMES DEVENISH

FILE NO/S:

DIVISION:

Criminal

PROCEEDING:

Sentence

ORIGINATING COURT:

District Court at Maryborough

DELIVERED ON:

9 September 2016

DELIVERED AT:

Maryborough

HEARING DATE:

7 September 2016

JUDGE:

Smith DCJA

ORDER:

Ruling that section 9 (4), (5) and (6) of the Penalties and Sentences Act 1992 (Q) do not apply in this matter

CATCHWORDS:

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – whether s 9(4), (5) and (6) of the Penalties and Sentences Act 1992 (Q) apply to offences under s 228C & 228D of the Criminal Code- whether distribution and possession child exploitation material is an offence in relation to a child.

Criminal Code 1899 (Q) sections 228C & 228D

Penalties and Sentences Act 1992 (Q) section 9

Attorney-General for the State of Queensland v SBD [2010] QSC 104

R v McGrath [2006] 2 Qd R 58; [2005] QCA 463

R v Finch [2006] QCA 60

R v Plunkett [2006] QCA 182

Dodge v Attorney General for the State of Queensland (2012) 226 A Crim R 31

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476

COUNSEL:

Mr G Webber for the Crown

Mr P Rutledge for the defence

SOLICITORS:

Office of the Director of Public Prosecutions for the Crown

Suthers Lawyers for the defence

Introduction

The issue which has arisen in these sentencing proceedings is whether s 9(4); (5); and (6) of the Penalties and Sentence Act 1992 (Q) (“PSA”) apply to offences charged under s 228C & 228D of the Criminal Code (“Code”).

If they apply, the result is in this case that an actual term of imprisonment must be imposed on the defendant unless there are exceptional circumstances.

Background

The defendant is charged with one count of distributing child exploitation material contrary to section 228C of the Code and one count of possession of child exploitation material contrary to section 228D of the Code.

As to the facts of this case there is no suggestion that the defendant knew any of the children contained in the images. With respect to Count 1 it is alleged that he made available on the Bit Torrent file sharing network, 90 images of individual girls under 10 posing sexually wearing underwear. There were about 19 different girls. All images fell into category one. With respect to Count 2 the allegation is that following search of the defendant’s computer 21,836 images were found. 18,747 were in category one, 56 category two, 2 category three, 1 category four and 3,030 category six. There were also 108 videos, 44 in category one and 64 in category six. Again there is no suggestion the defendant knew any of the children the subject of the images.

Submissions

The crown submitted that section 9(4), (5) and (6) of the PSA do apply as these are sexual offences committed in relation to a child under 16. After the matter resumed the crown withdrew this submission.

The defence submitted that on…

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 Devenish

Details

AGLC: R v Devenish [2016] QDC 236
Case: [2016] QDC 236
Decision Date: 9 September 2016

CaseChat Overview and Summary

In the case of R v Devenish, the defendant was charged with offences under sections 228C and 228D of the Criminal Code, which relate to the possession and distribution of child exploitation material. The Queensland Court of Appeal was tasked with determining whether sections 9(4), (5) and (6) of the Penalties and Sentences Act 1992 (Q) applied to these offences and if the possession and distribution of child exploitation material constituted an offence in relation to a child. The court was required to interpret the relevant provisions of the Penalties and Sentences Act and the Criminal Code to resolve the dispute.

The court found that sections 9(4), (5) and (6) of the Penalties and Sentences Act did not apply to the offences under sections 228C and 228D of the Criminal Code. The court reasoned that these sections of the Act were intended to apply to offences involving violence or threats of violence, and did not encompass offences related to the possession and distribution of child exploitation material. The court further held that the possession and distribution of such material constituted an offence in relation to a child, as the material depicted the abuse and exploitation of a child.

The court's reasoning was based on the plain language of the relevant provisions, as well as the broader context and purpose of the legislation. The court held that the language of the Penalties and Sentences Act indicated that it was not intended to apply to offences under the Criminal Code that did not involve violence or threats of violence. Additionally, the court found that the possession and distribution of child exploitation material constituted an offence in relation to a child, as the material depicted the abuse and exploitation of a child. This was consistent with the purpose of the Criminal Code to protect children from harm and exploitation.

The court's ruling meant that the defendant's sentence would not be subject to the provisions of sections 9(4), (5) and (6) of the Penalties and Sentences Act. The final orders of the court were that these sections of the Act did not apply in this matter.

Orders

Orders of the court

Ruling that section 9 (4), (5) and (6) of the Penalties and Sentences Act 1992 (Q) do not apply in this matter

Background

Background to the litigation

Full text does not contain this section.

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 Devenish [2016] QDC 236
PARTIES:	THE QUEEN v LYLE JAMES DEVENISH
FILE NO/S:
DIVISION:	Criminal
PROCEEDING:	Sentence
ORIGINATING COURT:	District Court at Maryborough
DELIVERED ON:	9 September 2016
DELIVERED AT:	Maryborough
HEARING DATE:	7 September 2016
JUDGE:	Smith DCJA
ORDER:	*Ruling that section 9 (4), (5) and (6) of the Penalties and Sentences Act* 1992 (Q) do not apply in this matter**
CATCHWORDS:	CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – whether s 9(4), (5) and (6) of the Penalties and Sentences Act 1992 (Q) apply to offences under s 228C & 228D of the Criminal Code- whether distribution and possession child exploitation material is an offence in relation to a child. Criminal Code 1899 (Q) sections 228C & 228D Penalties and Sentences Act 1992 (Q) section 9 Attorney-General for the State of Queensland v SBD [2010] QSC 104 R v McGrath [2006] 2 Qd R 58; [2005] QCA 463 R v Finch [2006] QCA 60 R v Plunkett [2006] QCA 182 Dodge v Attorney General for the State of Queensland (2012) 226 A Crim R 31 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
COUNSEL:	Mr G Webber for the Crown Mr P Rutledge for the defence
SOLICITORS:	Office of the Director of Public Prosecutions for the Crown Suthers Lawyers for the defence