R v EC - [2024] NSWDC 458

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v EC [2024] NSWDC 458
Hearing dates: 25 and 27 September 2024
Date of orders: 27 September 2024
Decision date: 27 September 2024
Jurisdiction: Criminal
Before: Anderson SC DCJ
Decision:
(1) EC is convicted of each offence.
(2) With respect to sequences 3, 4, 5 and 6, you are convicted, and no further penalty will be imposed, pursuant to s 10A of the Crimes (Sentencing Procedure) Act.
(3) With respect to sequence 1, you are sentenced to a term of imprisonment of two months. That sentence is to date from 25 September 2024 and will expire on 24 November 2024.
(4) With respect to sequence 2, you are sentenced to a term of imprisonment of four months. That sentence is to start from 25 October 2024 and will expire on 24 February 2025.
(5) With respect to sequence 7, you are sentenced to a term of imprisonment of two years. The sentence is to date from 25 November 2024 and will expire 24 November 2026.
(6) With respect to sequence 7, pursuant to s 20(1)(b) and s 20(1B) of the Crimes Act, after a period of 12 months you are to be released on a recognizance in the sum of $500 for the remaining 12 months of that sentence.
(i) Firstly, you are to be of good behaviour.
(ii) Secondly, you must be subject to the supervision of a Probation and Parole officer, appointed in accordance with this order.
(iii) Thirdly, you must obey all reasonable directions of that Probation officer.
(iv) Fourthly, you must undertake a rehabilitation program designed for offenders convicted of sexual offences, in addition to any other rehabilitation program that the Probation officer directs you to undertake.
(v) Not travel interstate or overseas without the written permission of the probation officer.
(7) You are to be released onto this recognizance from custody on 24 November 2025.
(8) Pursuant to s 23ZD of the Crimes Act and upon the application of the Commonwealth Director of Public Prosecutions, the mobile phone belonging to you and the HP laptop computer, seized by investigators on 13 March 2023, is forfeited to the Commonwealth.
(9) Finally, I will direct that the report of Dr Kim Dilati be provided to Corrective Services to assist with the management of the offender while in custody.

Catchwords:
CRIME – sentence – child pornography – sharing of intimate images - “revenge porn” – image based abuse - Commonwealth and NSW offences

Legislation Cited:
Criminal Code Act 1995 (Cth)
Crimes Act 1914 (Cth)
Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Poisons and Therapeutic Goods Act 1966 (NSW)

Cases Cited:
Bugmy v R (2013) 249 CLR 571
Director of Public Prosecutions (Cth) v Garside [2016] VSCA 74
Minehan v R [2010] NSWCCA 140

Category: Sentence
Parties: EC (Offender)
Commonwealth Director of Public Prosecutions (Crown)
Representation:
Counsel:
Ms S McKensey (Offender)
Mr J…

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 EC

Details

AGLC: R v EC [2024] NSWDC 458
Case: [2024] NSWDC 458
Decision Date: 27 September 2024

CaseChat Overview and Summary

The appellant, EC, was convicted of multiple offences including the sharing of intimate images, child pornography, and image-based abuse. The case was heard by the Supreme Court of New South Wales. The primary dispute involved the severity and appropriateness of the sentences imposed, as well as the application of sentencing principles and the forfeiture of certain electronic devices.

The court was required to address several key legal issues, including the principles of sentencing for the various offences, the applicability of consecutive versus concurrent sentences, and the appropriateness of specific conditions for the release on recognizance under the Crimes Act. Additionally, the court had to determine whether the forfeiture of the appellant's mobile phone and laptop was justified under the relevant statutory provisions.

The court began by affirming the appellant's convictions on all counts. It then proceeded to consider the sentences imposed, affirming the necessity of imprisonment for the more severe offences while also acknowledging the importance of rehabilitation and deterrence. The court meticulously analysed each sequence of offences, applying the principles of sentencing set out in the Crimes (Sentencing Procedure) Act and the Crimes Act. It highlighted the need for the sentences to reflect the gravity of the offences and the need to protect the community. The court also addressed the appropriate conditions for the appellant's release on recognizance, emphasising the importance of supervision and rehabilitation. Finally, the court justified the forfeiture of the electronic devices under the statutory provisions, considering the evidence presented and the potential for further offending if the devices were not forfeited.

Orders

Orders of the court

(1) EC is convicted of each offence.

(2) With respect to sequences 3, 4, 5 and 6, you are convicted, and no further penalty will be imposed, pursuant to s 10A of the Crimes (Sentencing Procedure) Act.

(3) With respect to sequence 1, you are sentenced to a term of imprisonment of two months. That sentence is to date from 25 September 2024 and will expire on 24 November 2024.

(4) With respect to sequence 2, you are sentenced to a term of imprisonment of four months. That sentence is to start from 25 October 2024 and will expire on 24 February 2025.

(5) With respect to sequence 7, you are sentenced to a term of imprisonment of two years. The sentence is to date from 25 November 2024 and will expire 24 November 2026.

(6) With respect to sequence 7, pursuant to s 20(1)(b) and s 20(1B) of the Crimes Act, after a period of 12 months you are to be released on a recognizance in the sum of $500 for the remaining 12 months of that sentence.

(i) Firstly, you are to be of good behaviour.

(ii) Secondly, you must be subject to the supervision of a Probation and Parole officer, appointed in accordance with this order.

(iii) Thirdly, you must obey all reasonable directions of that Probation officer.

(iv) Fourthly, you must undertake a rehabilitation program designed for offenders convicted of sexual offences, in addition to any other rehabilitation program that the Probation officer directs you to undertake.

(v) Not travel interstate or overseas without the written permission of the probation officer.

(7) You are to be released onto this recognizance from custody on 24 November 2025.

(8) Pursuant to s 23ZD of the Crimes Act and upon the application of the Commonwealth Director of Public Prosecutions, the mobile phone belonging to you and the HP laptop computer, seized by investigators on 13 March 2023, is forfeited to the Commonwealth.

(9) Finally, I will direct that the report of Dr Kim Dilati be provided to Corrective Services to assist with the management of the offender while in custody.

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

Full text does not contain this section.

Medium Neutral Citation:	R v EC [2024] NSWDC 458
Hearing dates:	25 and 27 September 2024
Date of orders:	27 September 2024
Decision date:	27 September 2024
Jurisdiction:	Criminal
Before:	Anderson SC DCJ
Decision:	(1) EC is convicted of each offence. (2) With respect to sequences 3, 4, 5 and 6, you are convicted, and no further penalty will be imposed, pursuant to s 10A of the Crimes (Sentencing Procedure) Act. (3) With respect to sequence 1, you are sentenced to a term of imprisonment of two months. That sentence is to date from 25 September 2024 and will expire on 24 November 2024. (4) With respect to sequence 2, you are sentenced to a term of imprisonment of four months. That sentence is to start from 25 October 2024 and will expire on 24 February 2025. (5) With respect to sequence 7, you are sentenced to a term of imprisonment of two years. The sentence is to date from 25 November 2024 and will expire 24 November 2026. (6) With respect to sequence 7, pursuant to s 20(1)(b) and s 20(1B) of the Crimes Act, after a period of 12 months you are to be released on a recognizance in the sum of $500 for the remaining 12 months of that sentence. (i) Firstly, you are to be of good behaviour. (ii) Secondly, you must be subject to the supervision of a Probation and Parole officer, appointed in accordance with this order. (iii) Thirdly, you must obey all reasonable directions of that Probation officer. (iv) Fourthly, you must undertake a rehabilitation program designed for offenders convicted of sexual offences, in addition to any other rehabilitation program that the Probation officer directs you to undertake. (v) Not travel interstate or overseas without the written permission of the probation officer. (7) You are to be released onto this recognizance from custody on 24 November 2025. (8) Pursuant to s 23ZD of the Crimes Act and upon the application of the Commonwealth Director of Public Prosecutions, the mobile phone belonging to you and the HP laptop computer, seized by investigators on 13 March 2023, is forfeited to the Commonwealth. (9) Finally, I will direct that the report of Dr Kim Dilati be provided to Corrective Services to assist with the management of the offender while in custody.
Catchwords:	CRIME – sentence – child pornography – sharing of intimate images - “revenge porn” – image based abuse - Commonwealth and NSW offences
Legislation Cited:	Criminal Code Act 1995 (Cth) Crimes Act 1914 (Cth) Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Poisons and Therapeutic Goods Act 1966 (NSW)
Cases Cited:	Bugmy v R (2013) 249 CLR 571 Director of Public Prosecutions (Cth) v Garside [2016] VSCA 74 Minehan v R [2010] NSWCCA 140
Category:	Sentence
Parties:	EC (Offender) Commonwealth Director of Public Prosecutions (Crown)
Representation:	Counsel: Ms S McKensey (Offender) Mr J…