District Court at Brisbane – Date of Sentence: 19 October 2018 (Smith DCJ)
DELIVERED ON:
12 February 2019
DELIVERED AT:
Brisbane
HEARING DATE:
6 November 2018
JUDGES:
Morrison and Philippides JJA and Boddice J
ORDER:
The application is refused.
CATCHWORDS:
APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE – where the applicant pleaded guilty to the offence of using a carriage service to access child pornography material – where he was sentenced to 15 months’ imprisonment, to be released on a $500 recognizance after serving two months, on the condition that he be subject to probation for a period of two years – where defence counsel contended that the imposition of a period of actual custody is manifestly excessive – where the applicant was a serving federal police officer – where the majority of the child pornography material were graphic representations in the form of computer generated figures engaged in sexual activity or stories – where it was submitted the nature of the offending did not attract a period of actual custody – whether the sentence was manifestly excessive
Crimes Act 1914 (Cth), s 17A Criminal Code (Cth), s 474.19(1)
D A Holliday, with L M Dollar, for the applicant (pro bono) B Power for the respondent
SOLICITORS:
Robertson O’Gorman for the applicant Director of Public Prosecutions (Commonwealth) for the respondent
MORRISON JA: On 19 October 2018 the applicant pleaded guilty to the offence of using a carriage service to access child pornography material contrary to s 474.19(1) of the Criminal Code (Cth). He was sentenced that day to 15 months’ imprisonment, to be released on a $500 recognizance after serving two months, on the condition that he be subject to probation for a period of two years.
Leave to appeal against the sentence is sought but only in respect of the imposition of the period of actual imprisonment.
The essential contention advanced is that the imposition of a period of actual custody makes the sentence manifestly excessive.
Circumstances of the offence
The particular circumstances of the offence were reduced to an agreed statement of facts, tendered to the…
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.
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Details
AGLC
R v Edwards [2019] QCA 15
Case
[2019] QCA 15
Decision Date
CaseChat Overview and Summary
The applicant, Edwards, appealed against his sentence for using a carriage service to access child pornography material. He was sentenced to 15 months’ imprisonment, with a release on a $500 recognizance after serving two months, and a two-year probation period. The defence counsel argued that the imposition of a period of actual custody was manifestly excessive, given that Edwards was a serving federal police officer and the majority of the child pornography material involved computer-generated figures engaged in sexual activity or stories.
The court had to determine whether the sentence was manifestly excessive, considering the nature of the offence and the personal circumstances of the offender. The court reviewed the sentencing principles relevant to child pornography offences and considered the need for general and specific deterrence. The court also examined whether the sentence was disproportionate to the gravity of the offence and the offender’s personal circumstances.
The court found that while the offence was serious, the sentence was not manifestly excessive. The court considered the need for specific deterrence, given Edwards’ position as a federal police officer, and the potential for the sentence to serve as a warning to others in similar positions. The court concluded that the sentence, while severe, was appropriate in light of the seriousness of the offence and the need to uphold the integrity of the law enforcement profession. The application for appeal was refused.