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R v Dunnicliff

R v Dunnicliff

Case [2023] ACTSC 350 24 November 2023

Intensive Corrections Order

Mental Health

Youth

Criminal Law

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Dunnicliff
Citation:	[2023] ACTSC 350
Hearing Date:	27 October 2023
Decision Date:	24 November 2023
Before:	Loukas-Karlsson J
Decision:	(1) The publication of the name of the offender’s ex-partner and the offender’s mother be prohibited pursuant to s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) and instead referred to in accordance with the pseudonyms of these sentencing reasons. (2) I record convictions for each offence. (3) For the offence of using a carriage service to possess/ control child abuse material (CC2022/4413), the offender is sentenced to 12 months’ imprisonment to commence 24 November 2023 and expire on 23 November 2024. (4) For the offence of using a carriage service to solicit child abuse material (CC2022/10963), the offender is sentenced to 18 months’ imprisonment to commence 24 May 2024 and expire on 23 November 2025. (5) I direct that the terms of imprisonment are to be served by way of an Intensive Corrections Order for the period commencing today, 24 November 2023 and ending on 23 November 2025 under s 20AB of the Crimes Act 1914 (Cth). (6) In addition to the core conditions, the conditions of the Intensive Corrections Order will be that the offender: (a) continue to engage with a clinical psychologist, ideally one experienced in Autism Spectrum Disorder, to address his history of Persistent Depressive Disorder and ongoing symptoms; (b) engage with a Sex Offender Program.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – use carriage service to posses/control child abuse material – use carriage service to solicit child abuse material – causal link between stunted psychosocial development and offending – reduced moral culpability – youth and positive prospects of rehabilitation – sentence of imprisonment to be served by way of Intensive Corrections Order with conditions for treatment
Legislation Cited:	Crimes Act 1900 (ACT) s 309 Crimes Act 1914 (Cth) pt 1B, ss 3E, 16A, 17A, 20, 20AB, 23ZD Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) Crimes (Sentencing) Act 2005 (ACT) s 78 Criminal Code Act 1995 (Cth) ss 474.22A, 474.22 Criminal Procedure Act 1986 (NSW) s 166 Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 111 Mental Health Act 2015 (ACT) s 85
Cases Cited:	Boulton v The Queen [2014] VSCA 342; 46 VR 308 Cameron v The Queen [2002] HCA 6; 209 CLR 339 Clarke-Jeffries v R [2019] NSWCCA 56 Cluett v The Queen [2019] WASCA 111; 279 A Crim R 57 Commonwealth Director of Public Prosecutions v CCQ [2021] QCA 4 Director of Public Prosecutions (Cth) v Barnes [2023] VCC 147 Director of Public Prosecutions (Cth) v Bremner [2023] VCC 51 Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 Director of Public Prosecutions v Latham [2009] TASSC 101; 19 Tas R 281

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 Dunnicliff

Details

AGLC: R v Dunnicliff [2023] ACTSC 350
Case: [2023] ACTSC 350
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, Archer Fergus Dunnicliff was sentenced for using a carriage service to possess/control child abuse material and using a carriage service to solicit child abuse material. The court prohibited the publication of the names of the offender's ex-partner and mother, referring to them by pseudonyms. The offender was sentenced to 12 months’ imprisonment for possessing/controlling child abuse material and 18 months’ imprisonment for soliciting child abuse material, to be served concurrently. The sentences were to be served by way of an Intensive Corrections Order, with additional conditions for the offender to engage with a clinical psychologist, ideally one experienced in Autism Spectrum Disorder, and to participate in a Sex Offender Program. The court emphasised the depraved nature of the child abuse material and the importance of general deterrence and rehabilitation in sentencing. The offender's mental health conditions and psychosocial development were considered mitigating factors, but the court balanced these with the need for specific and general deterrence and the protection of the community.

Orders