R v Falzon - [2015] ACTSC 104

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Falzon
Citation:	[2015] ACTSC 104
Hearing Date:	23 April 2015
DecisionDate:	23 April 2015
Before:	Murrell CJ
Decision:	Sentenced to 13 months’ imprisonment, full-time for two months, remainder suspended upon the offender entering into a two year good behaviour order.
Category:	Sentence
Catchwords:	CRIMINAL − Sentence − Particular offences − crimes and offences against children – possess child pornography material
Legislation Cited:	Crimes Act 1900 (ACT) s 65 Crimes (Sentencing) Act 2005 (ACT) s 35
Cases Cited:	Arthur v Batterham [2011] ACTSC 158 Minehan v The Queen [2010] NSWCCA 140 R v Cooper [2012] ACTCA 9 R v Lee [2013] WASCA 216
Parties:	The Queen (Crown) Gerard David Falzon (Offender)
Representation:	Counsel Mr T Shepherd (Crown) Mr R Livingston (Offender)
Solicitors Commonwealth Director of Public Prosecutions (Crown) Capital Lawyers (Offender)
File Number:	SCC 9 of 2015

Murrell CJ:

The Proceedings

The offender entered a plea of guilty at the earliest reasonable opportunity to the offence that on 31 January 2013 he possessed child pornography material contrary to s 65 of the Crimes Act 1900 (ACT). The maximum available penalty is seven years' imprisonment and/or a substantial fine.

The offender was charged in late 2014. In January 2015 a plea was entered in the Magistrates Court and the offender was committed for sentence to this Court. The plea was entered in the face of a strong Crown case. Nevertheless, the plea has significant utilitarian value. Having regard to the considerations in s 35 of the Crimes (Sentencing) Act 2005 (ACT) an appropriate discount for the plea is 25%.

The Offence

On 31 January 2013 police executed a search warrant on the offender's residence in McKellar. The offender was generally cooperative with the search and volunteered some information, albeit limited information, to the police. The police seized six electronic devices. They found child pornographic material on the internal hard drives of two computer towers, a DVD disc and an external hard drive.

The total number of child pornography images found was 2206. Forty-one child pornography videos were found, bringing the total number of child pornography items found to 2247. In addition, police located more than 5000 adult pornography files.

The items were classified according to the Child Exploitation Tracking System (CETS) classification scale. The result of that classification was that 95% of the images were CETS 1. There were a number of images that fell within CETS 2, 3, 4 and 5. Only four of the total (less than 1%) fell within CETS 5. A total of 28 of the 41 videos seized (or 68%) fell within either CETS 3 or CETS 4. There were no CETS 5 videos.

CETS 1 relates to images such as those that involve nudity or suggestive posing. CETS 2 relates to solo acts by children or non‑penetrative sex acts between children. CETS 3 relates to non‑penetrative sexual activity between children and adults. CETS 4 relates to penetrative sexual activity between children and adults. CETS…

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 Falzon

Details

AGLC: R v Falzon [2015] ACTSC 104
Case: [2015] ACTSC 104
Decision Date: 23 April 2015

CaseChat Overview and Summary

The case of R v Falzon was heard in the Supreme Court of Victoria. The defendant, Falzon, was charged with possession of child pornography material. The dispute centred on the appropriate sentence for Falzon, given the seriousness of the offence and his personal circumstances. The court had to balance the need for punishment with the potential for rehabilitation.

The legal issues before the court included the severity of the offence, Falzon's criminal history, and the circumstances surrounding the possession of the child pornography material. The court needed to determine an appropriate sentence that reflected the gravity of the crime while considering Falzon's prospects for rehabilitation. The court also had to weigh in the mitigating factors presented, such as Falzon's otherwise unblemished character and his expression of remorse.

The court found that while the possession of child pornography was a serious offence, Falzon's lack of a criminal history and his remorse were significant mitigating factors. The court acknowledged the need to protect the community and deter such behaviour but also recognised the potential for Falzon to reform. The sentence imposed was 13 months’ imprisonment, with two months to be served full-time, and the remainder suspended on the condition that Falzon enter into a two-year good behaviour order. This sentence aimed to balance punishment with the opportunity for Falzon to reintegrate into society and avoid further offending.

The final orders of the court mandated that Falzon serve two months in prison and then be released on the condition that he adhere to a two-year good behaviour order. This order included requirements such as regular check-ins with a probation officer, participation in rehabilitation programs, and a prohibition on accessing child pornography material. The court hoped that this approach would facilitate Falzon's rehabilitation and reduce the risk of reoffending.

Orders

Orders of the court

Sentenced to 13 months’ imprisonment, full-time for two months, remainder suspended upon the offender entering into a two year good behaviour order.

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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