R v Donald - [2019] ACTSC 129

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Donald

Citation:

[2019] ACTSC 129

Hearing Date:

21 January 2019

Decision Date:

25 January 2019

Before:

Burns J

Decision:

See [11]-[14]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – possessing child exploitation material – two charges of using a carriage service to access child pornography material – pleas of guilty – serious criminal offences – lower range of such offences – no prior convictions – prospects of rehabilitation appear to be good

Legislation Cited:

Crimes Act 1900 (ACT) s 65(1)

Crimes Act 1914 (Cth) s 20(1)(b)

Criminal Code Act 1995 (Cth) s 474.19(1)

Parties:

The Queen (Crown)

Jeffrey Alexander Donald (Offender)

Representation:

Counsel

M Keks (Crown)

J Sabharwal (Offender)

Solicitors

Commonwealth Director of Public Prosecutions (Crown)

Armstrong Legal (Offender)

File Number:

SCC 251 of 2018

BURNS J

1. Jeffrey Donald, you have pleaded guilty to one charge of possessing child exploitation material contrary to s 65(1) of the Crimes Act 1900 (ACT), which carries a maximum penalty of seven years' imprisonment, a fine of $105,000 or both, and two charges of using a carriage service to access child pornography material contrary to s 474.19(1) of the Criminal Code Act 1995 (Cth), each of which offences carries a maximum penalty of 15 years' imprisonment, a fine of $153,000 up until July 2015 and $162,000 thereafter or both. Your pleas of guilty were entered on 20 September 2018, being the third mention of the matter in the Magistrates Court.
2.        You were employed as an Assistant Director within the Cyber and Information Security Branch of the Australian Signals Directorate. As part of your duties, you were assigned an access account to the Defence Protected Network of the Australian Department of Defence within which you could access your personally assigned drive within the Defence Protected Network in the name of jeffrey.donald.
3.        On 16 January 2018, routine analytics conducted within the Defence Protected Network identified your access account as having conducted a number of internet searches which were determined to be inconsistent with appropriate use of Commonwealth IT systems. Due to the findings in the routine analytics, a review was conducted in your Defence Protected Network drive. This analysis identified approximately 8,000 files that had been stored on the drive between 2011 and December 2017. Upon review, it was determined that certain files contained child pornography material. On 24 January 2018, you were placed on leave from your role within the Australian Signals Directorate and your access to sensitive systems was removed.
4.        On 2 February 2018, Department of Defence Security Analyst, DD, provided police with a disc containing a capture of your Defence Protected Network account. The information contained within that capture was present on your Defence Protected Network account as at 17 January 2018. Police conducted an examination of the capture of your drive located within the Defence Protected Network account. As a result of the examination seven images, four text-based documents and…

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 Donald

Details

AGLC: R v Donald [2019] ACTSC 129
Case: [2019] ACTSC 129
Decision Date: 25 January 2019

CaseChat Overview and Summary

In the case of R v Donald, the appellant faced two charges of using a carriage service to access child pornography material. The appellant pleaded guilty to both charges, which are serious criminal offences. The court was tasked with determining an appropriate sentence for the appellant, who had no prior convictions and whose prospects of rehabilitation appeared to be good. The court had to consider the lower range of sentences for such offences, given the circumstances of the case.

The primary legal issues the court had to decide were the appropriate range of sentences for each offence and the overall sentence to be imposed on the appellant. The court had to consider the nature and circumstances of the offences, the appellant's criminal history, and the prospects of rehabilitation. The court also had to ensure that the sentence was proportionate to the seriousness of the offences and that it served the purposes of deterrence, retribution, and rehabilitation.

The court determined that the appropriate range of sentences for each offence was the lower end, given the appellant's lack of prior convictions and good prospects of rehabilitation. The court also considered the need for deterrence and the protection of the community. The court imposed a sentence of imprisonment for each offence, with the sentences to be served concurrently. The court emphasised the seriousness of the offences and the need to protect the community, but also recognised the appellant's prospects of rehabilitation and the need for a sentence that was proportionate to the seriousness of the offences.

The court ordered that the appellant be imprisoned for a term of 12 months for each offence, with the sentences to be served concurrently. The court also ordered that the appellant be subject to a number of conditions, including a sex offender registration requirement and a good behaviour bond. The court emphasised the importance of rehabilitation and the need to protect the community from further offending.

Orders