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R v Dieu, Jonathan

R v Dieu, Jonathan

Case [2017] NSWDC 375 20 September 2017

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District Court

New South Wales

Medium Neutral Citation: R v DIEU, Jonathan [2017] NSWDC 375
Hearing dates: 18 August 2017 and 15 September 2017
Date of orders: 20 September 2017
Decision date: 20 September 2017
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
The offender is referred to the NSW Community Corrections Service for assessment as to suitability for an Intensive Correction Order. For orders see [118].

Catchwords: Criminal – Sentence – use carriage service to access child pornography – possess child abuse material – 19 year old male – no prior criminal offences – no evidence of further dissemination of material beyond the offender’s computer – no evidence the offender had any sexual pathology involving children – activity occurred over a one year period – deemed a ‘low risk’ of further offending – some causal connection between the offenders mental state and the acts committed – lesser weight to general deterrence – the effect of ‘delay’ upon the proceedings – full discount for early plea of ‘guilty’ – totality of sentencing.
Legislation Cited: Commonwealth Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Criminal Code Act 1995 (Cth)
Cases Cited: Burbridge v R [2016] NSWCCA 128
DPP v De La Rosa (2010) NSWLR 194
Iskander v R [2013] NSWCCA 235
KT v R [2008] NSWCCA 51
Laycock v R [2017] NSWCCA 47
Linardon [2014] NSWCCA 247
Miller v R [2015] NSWCCA 86
Muldrock v R (2011) 244 CLR 120
Pearce v R (1998) 194 CLR 610
Phanekum v R [2015] NSWCCA 295
R v Blackman and Walters [2001] NSWCCA 121
R v Booth [2009] NSWCCA 89
R v BP [2010] NSWCCA 303
R v Engert (1995) 84 A Crim R 67
R v Gent [2005] 162 A Crim R 29
R v Guest [2014] VSCA 29
R v Henry (1999) 46 NSWLR 346
R v Leeuw [2015] NSWCCA 183
R v Martin [2014] NSWCCA 283
R v Minehan [2010] NSWCCA 140
R v Porte [2015] NSWCCA 174
R v Porte [2015] NSWCCA 174
R v Thomson and Houlton [2000] NSWCCA 309
Ryan v R [2015] NSWCCA 209
Saddler v The Queen [2009] NSWCCA 83
Category: Sentence
Parties: Director of Public Prosecutions
Jonathan Dieu - Offender
Representation: Counsel:
Ms Hatch (Solicitor) – Director of Public Prosecutions
Ms Goodwin – Offender

File Number(s): 2016/0041654

sentence

HIS HONOUR: The prisoner appears today for sentence in relation to two offences, one a breach of the Commonwealth Criminal Code and another a breach of the Crimes Act of New South Wales.
The Commonwealth offence alleges that the accused between 26 December 2014 and 9 February 2016 at Mt Pritchard in the State of New South Wales did use a carriage service to access child pornography material. This is an offence contrary to subs 474.19 (1)(a)(i) Criminal Code 1995 (CTH). I am informed by the learned Crown Prosecutor that it carries a maximum penalty of 15 years imprisonment.
The second offence alleges the accused “possession” of “child abuse material” 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 Dieu, Jonathan

Details

AGLC: R v Dieu, Jonathan [2017] NSWDC 375
Case: [2017] NSWDC 375
Decision Date: 20 September 2017

CaseChat Overview and Summary

The case of R v Dieu, Jonathan, involves a 19-year-old male who was charged with using a carriage service to access child pornography and possessing child abuse material. The case was heard in a relevant court, though the specific court is not named in the text. The offender had no prior criminal history and there was no evidence to suggest that the material was disseminated beyond the offender's computer or that the offender exhibited any sexual pathology involving children. The illegal activity had occurred over a period of one year, and the offender was assessed as a 'low risk' of further offending. There was, however, some causal connection identified between the offender's mental state and the acts committed.

The court had to determine the appropriate sentence for the offender, considering the totality of the circumstances, including the early plea of guilty, the lack of prior criminal conduct, and the absence of evidence suggesting further dissemination or a predisposition towards child abuse. The court also had to weigh the purposes of sentencing, with a particular focus on general deterrence and the impact of delay on the proceedings. The offender’s early guilty plea warranted a full discount, and this was factored into the sentencing decision. The court concluded that while the acts were serious, the offender’s low risk profile and other mitigating factors warranted a particular approach to sentencing.

The court ordered that the offender be referred to the NSW Community Corrections Service for an assessment of suitability for an Intensive Correction Order, with detailed orders provided in the judgment. This decision underscores the importance of individualised sentencing that takes into account the specific circumstances of each case, balancing the need for punishment and deterrence with the potential for rehabilitation.

Orders

Orders of the court

The offender is referred to the NSW Community Corrections Service for assessment as to suitability for an Intensive Correction Order. For orders see [118].

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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Citations

R v Dieu, Jonathan [2017] NSWDC 375

Cases Citing This Decision

No citing cases yet.

Cases Cited

Laycock v The Queen [2017] NSWCCA 47
Citation 1

…CA 128 DPP v De La Rosa (2010) NSWLR 194 Iskander v R [2013] NSWCCA 235 KT v R [2008] NSWCCA 51 Laycock v R [2017] NSWCCA 47 Linardon [2014] NSWCCA 247 Miller v R [2015] NSWCCA 86 Muldrock v R (2011) 244 CLR 120 Pearce v R (1998) 194 CLR 610 Phanekum v R [2015] NSWCCA 295 R v Blackman and Walters [2001] NSWCCA 121…
Burbridge v R [2016] NSWCCA 128
Citation 2 (Para 95)

…In that regard I also have had regard to the decision of Burbridge cited by the Crown, [2016] NSWCCA 128, which is closer in one sense to the character of this objective offending, but certainly where there was a far greater of number of files and a larger quantity of material possessed than by this prisoner.…
Phanekham v The Queen [2015] NSWCCA 295
Citation 3 (Para 87)

…CJ and Allen JA from Engert were extensively quoted as was the relevant passages from De La Rosa to which I have referred. In a decision of Phanekum [2015] NSWCCA 295, at [24], the CCA held that the relevance of general deterrence when there is no causal connection between the offender’s mental state and the offend…
Nguyen, Kathy v R [2015] NSWCCA 209
Citation 4 (Para 88)

…The other decision to which I wish to refer just briefly is the decision of Ryan v R [2015] NSWCCA 209, particularly at [4]-[11] in the judgment of Hamill J. He noted, by reference to the principles in De La Rosa and by reference particularly to Muldrock v R (2011) 244 CLR 120 and Engert (1995) 84 ACrimR 67, that Gl…
R v De Leeuw [2015] NSWCCA 183
Citation 5 (Para 26)

…Those decisions include R v Leeuw [2015] NSWCCA 183, R v Gent [2005] 162 ACrimR 29. R v Porte [2015] NSWCCA 174 and another authority that is extensively quoted from the judgment of RA Hulme J, R v Minehan [2010] NSWCCA 140. There is a Victorian authority of similar character. Porte is a later case and Johnson J in…
R v Porte [2015] NSWCCA 174
Citation 6 (Para 26)

…Those decisions include R v Leeuw [2015] NSWCCA 183, R v Gent [2005] 162 ACrimR 29. R v Porte [2015] NSWCCA 174 and another authority that is extensively quoted from the judgment of RA Hulme J, R v Minehan [2010] NSWCCA 140. There is a Victorian authority of similar character. Porte is a later case and Johnson J in…
Miller v R [2015] NSWCCA 86
Citation 7 (Para 91)

…I am taken to a number of authorities. The decision of Miller v R [2015] NSWCCA 86, particularly [96]-[98], the decision of KT v R [2008] NSWCCA 51, particularly at [23]-[25] and the decision of R v BP , particularly the judgment of Hodgson JA in that latter judgment at [4]‑[5]. The late Hodgson JA reflected upon t…
R v Martin [2014] NSWCCA 283
Citation 8

…2 A Crim R 29 R v Guest [2014] VSCA 29 R v Henry (1999) 46 NSWLR 346 R v Leeuw [2015] NSWCCA 183 R v Martin [2014] NSWCCA 283 R v Minehan [2010] NSWCCA 140 R v Porte [2015] NSWCCA 174 R v Porte [2015] NSWCCA 174 R v Thomson and Houlton [2000] NSWCCA 309 Ryan v R [2015] NSWCCA 209 Saddler v The Queen [2009] NSWCCA 83…
R v Linardon [2014] NSWCCA 247
Citation 9

…010) NSWLR 194 Iskander v R [2013] NSWCCA 235 KT v R [2008] NSWCCA 51 Laycock v R [2017] NSWCCA 47 Linardon [2014] NSWCCA 247 Miller v R [2015] NSWCCA 86 Muldrock v R (2011) 244 CLR 120 Pearce v R (1998) 194 CLR 610 Phanekum v R [2015] NSWCCA 295 R v Blackman and Walters [2001] NSWCCA 121 R v Booth [2009] NSWCCA 89…
DPP (Cth) v Guest [2014] VSCA 29
Citation 10

…WCCA 89 R v BP [2010] NSWCCA 303 R v Engert (1995) 84 A Crim R 67 R v Gent [2005] 162 A Crim R 29 R v Guest [2014] VSCA 29 R v Henry (1999) 46 NSWLR 346 R v Leeuw [2015] NSWCCA 183 R v Martin [2014] NSWCCA 283 R v Minehan [2010] NSWCCA 140 R v Porte [2015] NSWCCA 174 R v Porte [2015] NSWCCA 174 R v Thomson and Ho…
Iskandar v R [2013] NSWCCA 235
Citation 11 (Para 86)

…To correct my understanding of the matter, I was taken to a number of authorities. I was taken to Iskander v R [2013] NSWCCA 235, particularly [23]-[27]-[30]. In that case at [23], the Crown accepted that it was not necessary for the applicant to demonstrate a causal link between his depressive condition and his off…
Muldrock v The Queen [2011] HCA 39
Citation 12 (Para 88)

…cularly at [4]-[11] in the judgment of Hamill J. He noted, by reference to the principles in De La Rosa and by reference particularly to Muldrock v R (2011) 244 CLR 120 and Engert (1995) 84 ACrimR 67, that Gleeson CJ had made the point that an offender’s mental condition could result in the reduction of sentence even…
BP v R; R v BP [2010] NSWCCA 303
Citation 13

…Phanekum v R [2015] NSWCCA 295 R v Blackman and Walters [2001] NSWCCA 121 R v Booth [2009] NSWCCA 89 R v BP [2010] NSWCCA 303 R v Engert (1995) 84 A Crim R 67 R v Gent [2005] 162 A Crim R 29 R v Guest [2014] VSCA 29 R v Henry (1999) 46 NSWLR 346 R v Leeuw [2015] NSWCCA 183 R v Martin [2014] NSWCCA 283 R v Minehan [2…
Minehan v R [2010] NSWCCA 140
Citation 14 (Para 26)

…Gent [2005] 162 ACrimR 29. R v Porte [2015] NSWCCA 174 and another authority that is extensively quoted from the judgment of RA Hulme J, R v Minehan [2010] NSWCCA 140. There is a Victorian authority of similar character. Porte is a later case and Johnson J in that judgment added to the list of relevant factors to t…
R v Booth [2009] NSWCCA 89
Citation 15 (Para 33)

…It is pointed out in the decision of Booth , [2009] NSWCCA 89, that the Crown cites, quoting from the Judge at first instance, that in sentencing for such a crime it is well to bear it firmly in mind that the material in question cannot come into existence without exploitation and abuse of children somewhere in the…
Saddler v R [2009] NSWCCA 83
Citation 16

…[2015] NSWCCA 174 R v Thomson and Houlton [2000] NSWCCA 309 Ryan v R [2015] NSWCCA 209 Saddler v The Queen [2009] NSWCCA 83 Category: Sentence Parties: Director of Public Prosecutions Jonathan Dieu - Offender Representation: Counsel: Ms Hatch (Solicitor) – Director of Public Prosecutions Ms Goodwin – Offender File…
KT v R [2008] NSWCCA 51
Citation 17 (Para 91)

…I am taken to a number of authorities. The decision of Miller v R [2015] NSWCCA 86, particularly [96]-[98], the decision of KT v R [2008] NSWCCA 51, particularly at [23]-[25] and the decision of R v BP , particularly the judgment of Hodgson JA in that latter judgment at [4]‑[5]. The late Hodgson JA reflected upon t…
R v Blackman and Walters [2001] NSWCCA 121
Citation 18 (Para 116)

…he South Australian Supreme Court that has been adopted in New South Wales and a number of authorities including the decision of Blackman and Walters [2001] NSWCCA 121, particularly at [44].…
Morawski v State Rail Authority [2000] NSWCCA 309
Citation 19

…v Minehan [2010] NSWCCA 140 R v Porte [2015] NSWCCA 174 R v Porte [2015] NSWCCA 174 R v Thomson and Houlton [2000] NSWCCA 309 Ryan v R [2015] NSWCCA 209 Saddler v The Queen [2009] NSWCCA 83 Category: Sentence Parties: Director of Public Prosecutions Jonathan Dieu - Offender Representation: Counsel: Ms Hatch (Solicit…
R v Henry [1999] NSWCA 111
Citation 20

…CCA 303 R v Engert (1995) 84 A Crim R 67 R v Gent [2005] 162 A Crim R 29 R v Guest [2014] VSCA 29 R v Henry (1999) 46 NSWLR 346 R v Leeuw [2015] NSWCCA 183 R v Martin [2014] NSWCCA 283 R v Minehan [2010] NSWCCA 140 R v Porte [2015] NSWCCA 174 R v Porte [2015] NSWCCA 174 R v Thomson and Houlton [2000] NSWCCA 309 Ryan v…
Pearce v The Queen [1998] HCA 57
Citation 21 (Para 108)

…lation to the issue of totality. Particularly the matters that arise in the context of decisions such as Hammoud (2000). The High Court in Pearce v R (1998) 194 CLR 610, particularly at [45], requires through the voice of the majority a Court to give an appropriate sentence for each offence and then turn to the issue…

Legislation Cited

Commonwealth Crimes Act 1914 (Cth)
1 mention
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 119)
Crimes Act 1900 (ACT)
1 mention
Criminal Code Act 1995 (Cth)
1 mention

Medium Neutral Citation:	R v DIEU, Jonathan [2017] NSWDC 375
Hearing dates:	18 August 2017 and 15 September 2017
Date of orders:	20 September 2017
Decision date:	20 September 2017
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	The offender is referred to the NSW Community Corrections Service for assessment as to suitability for an Intensive Correction Order. For orders see [118].
Catchwords:	Criminal – Sentence – use carriage service to access child pornography – possess child abuse material – 19 year old male – no prior criminal offences – no evidence of further dissemination of material beyond the offender’s computer – no evidence the offender had any sexual pathology involving children – activity occurred over a one year period – deemed a ‘low risk’ of further offending – some causal connection between the offenders mental state and the acts committed – lesser weight to general deterrence – the effect of ‘delay’ upon the proceedings – full discount for early plea of ‘guilty’ – totality of sentencing.
Legislation Cited:	Commonwealth Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Criminal Code Act 1995 (Cth)
Cases Cited:	Burbridge v R [2016] NSWCCA 128 DPP v De La Rosa (2010) NSWLR 194 Iskander v R [2013] NSWCCA 235 KT v R [2008] NSWCCA 51 Laycock v R [2017] NSWCCA 47 Linardon [2014] NSWCCA 247 Miller v R [2015] NSWCCA 86 Muldrock v R (2011) 244 CLR 120 Pearce v R (1998) 194 CLR 610 Phanekum v R [2015] NSWCCA 295 R v Blackman and Walters [2001] NSWCCA 121 R v Booth [2009] NSWCCA 89 R v BP [2010] NSWCCA 303 R v Engert (1995) 84 A Crim R 67 R v Gent [2005] 162 A Crim R 29 R v Guest [2014] VSCA 29 R v Henry (1999) 46 NSWLR 346 R v Leeuw [2015] NSWCCA 183 R v Martin [2014] NSWCCA 283 R v Minehan [2010] NSWCCA 140 R v Porte [2015] NSWCCA 174 R v Porte [2015] NSWCCA 174 R v Thomson and Houlton [2000] NSWCCA 309 Ryan v R [2015] NSWCCA 209 Saddler v The Queen [2009] NSWCCA 83
Category:	Sentence
Parties:	Director of Public Prosecutions Jonathan Dieu - Offender
Representation:	Counsel: Ms Hatch (Solicitor) – Director of Public Prosecutions Ms Goodwin – Offender
File Number(s):	2016/0041654