R v Dittman; Ex parte - [2017] QCA 302

SUPREME COURT OF QUEENSLAND

CITATION:

R v Dittman; Ex parte Director of Public Prosecutions (Cth) [2017] QCA 302

PARTIES:

R
v
DITTMAN, Brock Emil
(respondent)
EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
(appellant)

FILE NO/S:

CA No 47 of 2017
SC No 772 of 2016

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by Director of Public Prosecutions (Cth)

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 21 February 2017 (Thomas J)

DELIVERED ON:

8 December 2017

DELIVERED AT:

Brisbane

HEARING DATE:

12 September 2017

JUDGES:

Gotterson and McMurdo JJA and Mullins J

ORDER:

The appeal is dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – EXERCISE OF DISCRETION – GENERALLY – where the respondent was sentenced to concurrent terms of imprisonment in respect of offences relating to the possession and making available of child pornography material – where the most serious count involved 103 occasions, on 97 separate dates, on which the respondent made child pornography material available to two or more persons concurrently (“the aggravated count”) – where, at the time of sentence, the respondent had already begun to serve a sentence for an unrelated offence of maintaining a sexual relationship with a child, for which he had been sentenced to a three year term, suspended after 12 months (“the maintaining sentence”) – where the respondent was sentenced to four years’ imprisonment in relation to the aggravated count, with a non-parole period of 12 months, but that sentence was ordered to commence only upon the expiry of the suspended portion of the maintaining sentence – where the respondent was aged 28 to 30 years at the time of the offences and 32 when sentenced – where the respondent made timely pleas of guilty and demonstrated remorse and shame for his actions – where the sentences imposed were light in comparison with each of the comparable cases – whether the lightness of the sentence could be explained by the application of the totality principle – whether the sentence was manifestly inadequate

Criminal Code (Cth), s 474.19, s 474.24A

Lyons v R [2017] NSWCCA 204, considered
Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited
R v Howe [2017] QCA 7, considered
R v Linardon [2014] NSWCCA 247, considered
R v Shultz, unreported, Supreme Court of Queensland, Atkinson J, 19 March 2013, considered

COUNSEL:

W Abraham QC, with D K Whitmore, for the appellant
T A Ryan for the respondent

SOLICITORS:

Director of Public Prosecutions (Commonwealth) for the appellant
Walker Pender for the respondent

GOTTERSON JA: I agree with the order proposed by McMurdo JA and with the reasons given by his Honour.
McMURDO JA: This is an appeal by the Commonwealth Director of Public Prosecutions against sentences imposed in the Trial Division (Thomas J) for offences involving child pornography. The only ground of appeal is that the sentences are manifestly inadequate.
There were four counts on the indictment. Count 1…

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 Dittman; Ex parte

Details

AGLC: R v Dittman; Ex parte [2017] QCA 302
Case: [2017] QCA 302
Decision Date: 8 December 2017

CaseChat Overview and Summary

The appeal was brought by the Crown against the sentence imposed on the respondent for offences relating to the possession and making available of child pornography material. The matter was heard in the High Court of Australia. The most serious count involved 103 occasions, on 97 separate dates, on which the respondent made child pornography material available to two or more persons concurrently. The respondent was sentenced to four years’ imprisonment for this aggravated count, with a non-parole period of 12 months, to be served concurrently with a three-year term for an unrelated offence of maintaining a sexual relationship with a child, suspended after 12 months. The Crown argued that the sentence was manifestly inadequate and could not be explained by the application of the totality principle.

The key legal issues before the court were whether the sentences imposed were manifestly inadequate, and whether they could be explained by the application of the totality principle. The court considered the principles of sentencing, including the need for deterrence, denunciation, and the rehabilitation of the offender. The court also considered the principles of totality and proportionality, which require that the overall sentence take into account the cumulative effect of all the offences for which the offender is being sentenced. The court noted that the respondent had demonstrated remorse and shame for his actions and had made timely pleas of guilty. However, the court also noted that the sentences imposed were light in comparison with each of the comparable cases.

After considering the arguments and the principles of sentencing, the court held that the sentences imposed were not manifestly inadequate and could be explained by the application of the totality principle. The court held that the respondent’s age, remorse, and the fact that he had already begun to serve a sentence for an unrelated offence were relevant factors to be taken into account in determining the appropriate sentence. The court held that the totality principle allowed for a reduction in the overall sentence for the respondent, given that he was already serving a sentence for another offence. The court dismissed the appeal, holding that the sentences imposed were not manifestly inadequate.

The court made no further orders. The appeal was dismissed.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Dittman; Ex parte Director of Public Prosecutions (Cth) [2017] QCA 302
PARTIES:	R v DITTMAN, Brock Emil (respondent) EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS (appellant)
FILE NO/S:	CA No 47 of 2017 SC No 772 of 2016
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Appeal by Director of Public Prosecutions (Cth)
ORIGINATING COURT:	Supreme Court at Brisbane – Date of Sentence: 21 February 2017 (Thomas J)
DELIVERED ON:	8 December 2017
DELIVERED AT:	Brisbane
HEARING DATE:	12 September 2017
JUDGES:	Gotterson and McMurdo JJA and Mullins J
ORDER:	The appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – EXERCISE OF DISCRETION – GENERALLY – where the respondent was sentenced to concurrent terms of imprisonment in respect of offences relating to the possession and making available of child pornography material – where the most serious count involved 103 occasions, on 97 separate dates, on which the respondent made child pornography material available to two or more persons concurrently (“the aggravated count”) – where, at the time of sentence, the respondent had already begun to serve a sentence for an unrelated offence of maintaining a sexual relationship with a child, for which he had been sentenced to a three year term, suspended after 12 months (“the maintaining sentence”) – where the respondent was sentenced to four years’ imprisonment in relation to the aggravated count, with a non-parole period of 12 months, but that sentence was ordered to commence only upon the expiry of the suspended portion of the maintaining sentence – where the respondent was aged 28 to 30 years at the time of the offences and 32 when sentenced – where the respondent made timely pleas of guilty and demonstrated remorse and shame for his actions – where the sentences imposed were light in comparison with each of the comparable cases – whether the lightness of the sentence could be explained by the application of the totality principle – whether the sentence was manifestly inadequate Criminal Code (Cth), s 474.19, s 474.24A Lyons v R [2017] NSWCCA 204, considered Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, cited R v Howe [2017] QCA 7, considered R v Linardon [2014] NSWCCA 247, considered R v Shultz, unreported, Supreme Court of Queensland, Atkinson J, 19 March 2013, considered
COUNSEL:	W Abraham QC, with D K Whitmore, for the appellant T A Ryan for the respondent
SOLICITORS:	Director of Public Prosecutions (Commonwealth) for the appellant Walker Pender for the respondent