R v Elliott - [2008] NSWDC 238

CITATION: R v David Bruce Elliott [2008] NSWDC 238

JUDGMENT DATE:
24 October 2008

JURISDICTION: Criminal

JUDGMENT OF: Hulme SC DCJ

DECISION: Total sentence of imprisonment for 5 1/2 years with a non-parole component of 4 years 1 month.

CATCHWORDS: CRIMINAL LAW - Sentence - Possess child pornography - Disseminate child pornography - Plea of guilty - Offences whilst on bail

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Confiscation of Proceeds of Crime Act 1989

CASES CITED: R v Oliver [2003] 1 Cr App R 28
R v Kennedy [2000] NSWCCA 527
R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370
Mouscas v R [2008] NSWCCA 181
R v Saddler [2008] NSWDC 48
R v Stroempl (1995) 105 CCC(3d) 187
R v Jones (1999) 108 A Crim R 50

PARTIES: R v David Bruce Elliott

FILE NUMBER(S): 07/61/0123

COUNSEL: F. Lalic (Crown)
A. Benetatos (Offender)

SOLICITORS: Director of Public Prosecutions (Crown)
Benetatos White (Offender)

JUDGMENT

1 HIS HONOUR: On 7 October 2008 the offender, David Bruce ELLIOTT, was arraigned before me and entered pleas of guilty to 5 charges of possessing child pornography and 4 charges of disseminating child pornography.

2 These are offences against s.91H(3) and 91H(2) Crimes Act 1900 respectively and the maximum penalties are imprisonment for 5 years and 10 years.

3 The offender had appeared before me at the Orange sittings of this Court on 11 September 2008, having pleaded guilty and been committed for sentence. However, on that occasion it became apparent that the way in which the charges had been preferred presented an almost impossible sentencing task. The matter has been rectified by a substantial reduction in the number of charges now placed on the ex officio indictment filed by the Crown. The offender will still get the benefit from having admitted his guilt at an early stage in the Local Court.

FACTS

4 The Crown tendered by consent a statement of Agreed Facts signed by the offender and the prosecutor as well as a volume of other material that provides further details of the offences.

5 The Agreed Facts make reference to the COPINE scale in referring to the nature of the images that were in the offender’s possession. That scale ranks child pornographic material from level 1 as the least serious to level 10 as the most serious. Use of that scale provides a convenient method of describing the nature of the material and its relative degree of seriousness. It is not the only method – see for example, R v Oliver [2003] 1 Cr App R 28 where the Court of Appeal in the United Kingdom adopted a 5 level ranking. I do not think there is anything significant in the selection of a methodology for ranking the seriousness of the material. As the use of the COPINE scale is referred to in facts that are agreed between the parties, I am prepared to accept the appropriateness of its use in this case.

6…

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 Elliott

Details

AGLC: R v Elliott [2008] NSWDC 238
Case: [2008] NSWDC 238
Decision Date: 24 October 2008

CaseChat Overview and Summary

The case of R v Elliott involved the respondent, who was charged with possessing and disseminating child pornography, and subsequently pleaded guilty. The respondent was already on bail for other offences at the time of the commission of these new offences. The matter was heard in the Supreme Court of New South Wales. The central issue before the court was the determination of an appropriate sentence for the respondent, considering the gravity of the new offences and the fact that they were committed whilst the respondent was on bail.

The court had to consider the aggravating factors of the case, including the respondent's breach of bail conditions, the nature of the offences, and the impact of such crimes on the community. The court also needed to weigh these factors against any mitigating aspects of the case, such as the respondent's guilty plea and any personal circumstances that might warrant leniency. Additionally, the court had to ensure that the sentence was proportionate and served the purposes of deterrence, rehabilitation, and denunciation.

In delivering the sentence, the court emphasised the seriousness of the respondent's actions, highlighting the significant harm caused by the possession and dissemination of child pornography. The court found that the new offences were aggravated by the fact that they were committed whilst the respondent was already on bail for other serious offences. The court also noted the respondent's guilty plea as a mitigating factor, but ultimately determined that the primary focus should be on the gravity of the crimes and the need to protect the community. The court imposed a total sentence of imprisonment for five and a half years, with a non-parole period of four years and one month.

The final orders of the court reflect the sentence imposed, ensuring that the respondent serves the determined term and conditions.

Orders

Orders of the court

Total sentence of imprisonment for 5 1/2 years with a non-parole component of 4 years 1 month.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v David Bruce Elliott [2008] NSWDC 238
JUDGMENT DATE:	24 October 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Hulme SC DCJ
DECISION:	Total sentence of imprisonment for 5 1/2 years with a non-parole component of 4 years 1 month.
CATCHWORDS:	CRIMINAL LAW - Sentence - Possess child pornography - Disseminate child pornography - Plea of guilty - Offences whilst on bail
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Confiscation of Proceeds of Crime Act 1989
CASES CITED:	R v Oliver [2003] 1 Cr App R 28 R v Kennedy [2000] NSWCCA 527 R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370 Mouscas v R [2008] NSWCCA 181 R v Saddler [2008] NSWDC 48 R v Stroempl (1995) 105 CCC(3d) 187 R v Jones (1999) 108 A Crim R 50
PARTIES:	R v David Bruce Elliott
FILE NUMBER(S):	07/61/0123
COUNSEL:	F. Lalic (Crown) A. Benetatos (Offender)
SOLICITORS:	Director of Public Prosecutions (Crown) Benetatos White (Offender)