Legal Research
Cases
R v Finch

R v Finch

Case [2022] NSWDC 578 23 November 2022

Criminal Liability

Sentencing

Criminal Law

No judgment structure available for this case.

Type to search within this case.

District Court

New South Wales

Medium Neutral Citation: R v Finch [2022] NSWDC 578
Hearing dates: 17 and 18 October 2022
Date of orders: 23 November 2022
Decision date: 23 November 2022
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Sentence of imprisonment with recognizance release order for immediate release – For orders see [181] – [182].

Catchwords:
CRIME – use carriage service to make available child abuse material – sentence.

Legislation Cited:
Criminal Code 1995 (Cth)
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
DPP (Cth) v De La Rosa (2010) NSWLR 1; [2010] NSWCCA 194
DPP (Cth) v Garside [2016] VSCA 74
Einfeld v R (2010) 266 ALR 598; [2010] NSWCCA 87
R (Cth) v Nafarette [2022] NSWDC 225
R (Cth) v Simonet, unreported NSWDC 7 July 202
R v Burton [2020] NSWCCA 127
R v Delzotto [2022] NSWCCA 117
R v Edwards [2019] QCA 15
R v Henry (1999) NSWLR 346; [1999] NSWCCA 111
R v Hutchinson [2018] NSWCCA 152
R v Wran [2016] NSWSC 1015
Western Australia v Collier (2007) 178 A Crim R 310; [2007] WASCA 250

Category: Sentence
Parties: Commonwealth Director of Public Prosecution (Crown)
Brett John Finch (Offender)
Representation:
Crown Counsel:
Mr Jordan
Defence Counsel:
Mr N Smith

File Number(s): 21/353905
Publication restriction: The Court notes a suppression order made on 5 November 2021 in the County Court of Victoria prohibiting the publication of any information identifying the person referred to herein as RB, or his whereabouts. The order extends to publication anywhere in Australia and is extant until 22 May 2031.
Further, the schedule to these Remarks on sentence is to be marked “Not for Publication”. I make an order that the content of the schedule is not to be published pursuant to s7(b) of the Court Suppression and Non-Publication Orders Act 2010.

REMARKS on sentence

The offender is to be sentenced in respect of an offence pursuant to s474.22(1) of the Criminal Code 1995 (Cth) (“the Criminal Code”) that between about 6 November 2020 and 30 January 2021 he used a carriage service to make available child abuse material.
The maximum penalty for the offence is 15 years imprisonment.
The offender was arrested on 14 December 2021 and entered a plea of guilty in the Local Court on 16 August 2022. He was born on 20 August 1981 and was therefore 39 years old at the time of the offending. He is now 41 years old. The offender has spent no time in custody referrable to this offence.

The sentence hearing

A sentence hearing took place on 17 and 18 October 2022. The Crown sentence summary bundle became Exhibit A and it included a statement of agreed facts which may be summarised as follows.
In November 2020 Victorian Police had identified and arrested RB, who was a convicted child sex offender, in relation to his use of “Fastmeet” to exchange child abuse material with others. “Fastmeet” is a gay chat service that allows users…

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 Finch

Details

AGLC: R v Finch [2022] NSWDC 578
Case: [2022] NSWDC 578
Decision Date: 23 November 2022

CaseChat Overview and Summary

The case of R v Finch involved the defendant, Finch, who was found guilty of using a carriage service to make child abuse material available. The dispute was heard in the County Court of Victoria, presided over by his Honour Judge B. The primary legal issue before the court was the appropriate sentence to be imposed on Finch, taking into account the nature and circumstances of his offence, as well as any relevant mitigating or aggravating factors.

The court had to consider the gravity of the offence, which involved the distribution of material depicting the sexual abuse of children. The court also needed to weigh various sentencing principles and guidelines, including the need for denunciation, deterrence, and the rehabilitation of the offender. The court took into account Finch's background, his previous criminal history, and the impact of his actions on the victims. The court ultimately determined that an appropriate sentence would be one that adequately reflected the seriousness of the offence, while also providing an opportunity for Finch to rehabilitate and reintegrate into society.

In delivering the sentence, his Honour Judge B emphasised the heinous nature of the crime and the profound impact it had on the victims. The judge also considered Finch's limited criminal history and his potential for rehabilitation. Ultimately, the court imposed a sentence of imprisonment, with a recognizance release order for immediate release. The exact details of the sentence and conditions of release are outlined in paragraphs [181] and [182] of the judgment.

Orders

Orders of the court

Sentence of imprisonment with recognizance release order for immediate release – For orders see [181] – [182].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

R v Finch [2022] NSWDC 578

Most Recent Citation

Director of Public Prosecutions v Phibbs [2022] VCC 2126

Cases citing this decision · 7 of 7 shown

R v Chantler
[2024] NSWDC 164 Para 101

…cumstances”. Counsel referred to a number of sentencing judgments where exceptional circumstances have been found including R v Finch [2022] NSWDC 578 and R v French [2023] NSWDC 174. Counsel submitted the following matters should be taken into account as amounting to exceptional circumstances here:-…
Director of Public Prosecutions (Cth) v Weaver (a pseudonym) (Sentence)
[2024] VCC 440

…1561; DPP (Cth) v Tate [2023] VCC 1330; DPP v Duncan [2022] VCC 2164; DPP (Cth) v Varga [2022] VCC 1007; R v Finch [2022] NSWDC 578; R v Lozinski [2022] NSWDC 487; R v Niezner [2022] NSWDC 668 R v Burton [2020] NSWCCA 127. Sentence: Imprisonment for a period of 15 months, to be released immediately upon giving a re…
R v Abbott
[2023] NSWDC 488 Para 46

…I have received a number of other cases from the defence; Rzeminski , R v Pederson [2021] NSWDC 535; R v Finch [2022] NSWDC 578; and Bajracharya [2022] ACTSC 276. The Commonwealth attached a table of other cases to their submissions.…
Director of Public Prosecutions (Cth) v French
[2023] NSWDC 174 Para 83

…The other District Court decision to which I have been referred is R v Finch [2022] NSWDC 578, a decision by his Honour Judge Mahoney SC where at [179] his Honour adopted the construction of the meaning of exceptional circumstances formulated by Judge Buscombe in R (Cth) v Nafarette. I note that many of the factors…
Director of Public Prosecutions (Cth) v ABC (a pseudonym)
[2023] VCC 446

…CTCA 49; Glasheen v R [2022] NSWCCA 191; Rex v Taylor [2022] NSWCCA 256; Karim v R [2013] NSWCAA 23; Hili v R [2010] 242 CLR 520; R v Finch [2022] NSWDC 578; Worboyes v R [2021] VSCA 169; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; Markovic v R (2010) 30 VR 589; Totaan v R [2022] NSWCCA 75; Rodgerson v R [20…
R v Niezner
[2022] NSWDC 668 Para 57

…ions are matters I should not ignore when coming to the decision which I am required to make in this case. I have reviewed those decisions. R v Finch [2022] NSWDC 578 a decision of Mahony SC DCJ, the decision of R v Lozinski [2022] NSWDC 487 again by Mahony SC DCJ and then finally R v Brett Allan Simonet the judgem…
Director of Public Prosecutions v Phibbs
[2022] VCC 2126

…A 183; Director of Public Prosecutions v Garside [2016] VSCA 74; Worboyes v The Queen [2021] VSCA 169; DPP v Michael Winter [2022] VCC 227; R v Finch [2022] NSWDC 578; DPP v Nafarette [2022] NSWDC 225; Buckley v The Queen [2022] VSCA 138…

View all 7 citing cases →

Cases cited in this decision · 12 of 12 shown

R v Delzotto
[2022] NSWCCA 117 Para 128

…oduced s21B(1) and (2) of the Act was itself directed towards combatting the use of the internet in child sexual abuse cases, relying on R v Delzotto [2022] NSWCCA 117 at [80].…
R (Commonwealth) v Nafarette
[2022] NSWDC 225 Para 139

…ed the counsel for the offender referred to the explanatory memorandum and relied on the formulation expressed by Buscombe DCJ in R (Cth) v Nafarette [2022] NSWDC 225 at [89] as follows:-…
Burton v R
[2020] NSWCCA 127 Para 95

…The Crown also relied on R v Burton [2020] NSWCCA 127 where the Court of Criminal Appeal stated that the seriousness of the offence of transmission of child abuse material is necessarily informed by the nature and content of the material itself.…
R v Edwards
[2019] QCA 15 Para 94

…lst there was no actual child involved in the audio recordings it was wrong to categorise the offending as a victimless crime, relying on R v Edwards [2019] QCA 15 at [58]. In that case it was held that material of this type is not harmless, it has a tendency to normalise “exploitative sexual activity involving…
R v Hutchinson
[2018] NSWCCA 152 Para 89

…rred to the factors relevant to the assessment of objective seriousness for an offence involving child abuse material as determined in R v Hutchinson [2018] NSWCCA 152 at [44]-[45]. Those factors are referred to below.…
R v Wran
[2016] NSWSC 1015 Para 112

…ful for him. The Crown referred to the extra-curial punishment caused by media coverage disproportionate to the offending conduct relying on R v Wran [2016] NSWSC 1015 at [77]-[79] and Einfeld v R (2010) 266 ALR 598; [2010] NSWCCA 87 at [90] to submit that public humiliation does amount to a mitigating factor. Here…
DPP (Cth) v Garside
[2016] VSCA 74 Para 100

…ding and has no previous criminal convictions. Limited weight should be given to the offender’s prior good character relying on DPP (Cth) v Garside [2016] VSCA 74 at [63]. It was submitted that in cases involving sexual offending against children, the seriousness of the offence will often outweigh personal circum…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 137

…The offender submitted that whilst the opinions of Dr Lennings did not engage the principles in DPP (Cth) v De La Rosa (2010) NSWLR 1; [2010] NSWCCA 194, his complex presentation is a matter to be taken into account pursuant to s16A(2)(m) of the Act and in determining whether exceptional circumstances have been esta…
Einfeld v R
[2010] NSWCCA 87 Para 112

…ed by media coverage disproportionate to the offending conduct relying on R v Wran [2016] NSWSC 1015 at [77]-[79] and Einfeld v R (2010) 266 ALR 598; [2010] NSWCCA 87 at [90] to submit that public humiliation does amount to a mitigating factor. Here there was a need to find evidence of public humiliation and vilifi…
Einfeld v The Queen (No 2)
[2008] NSWCCA 243 Para 112

…rial punishment caused by media coverage disproportionate to the offending conduct relying on R v Wran [2016] NSWSC 1015 at [77]-[79] and Einfeld v R (2010) 266 ALR 598; [2010] NSWCCA 87 at [90] to submit that public humiliation does amount to a mitigating factor. Here there was a need to find evidence of public humi…
The State of Western Australia v Collier
[2007] WASCA 250 Para 100

…e will often outweigh personal circumstances, even in the case of a first offender, relying on Western Australia v Collier (2007) 178 A Crim R 310; [2007] WASCA 250 at [42].…
R v Henry
[1999] NSWCCA 111 Para 115

…tion to drugs as a motivating factor for criminal conduct is not a mitigating factor relying on the guideline judgment of R v Henry (1999) NSWLR 346; [1999] NSWCCA 111. Although that guideline judgment involved different criminal conduct the offender’s case here was that he engaged in that conduct to provide a logis…

Legislation cited in this decision · 3

Court Suppression and Non-publication Orders Act 2010 (NSW)
1 mention
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 104)
Crimes Act 1914 (Cth)
1 mention (from Para 88)

Medium Neutral Citation:	R v Finch [2022] NSWDC 578
Hearing dates:	17 and 18 October 2022
Date of orders:	23 November 2022
Decision date:	23 November 2022
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Sentence of imprisonment with recognizance release order for immediate release – For orders see [181] – [182].
Catchwords:	CRIME – use carriage service to make available child abuse material – sentence.
Legislation Cited:	Criminal Code 1995 (Cth) Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	DPP (Cth) v De La Rosa (2010) NSWLR 1; [2010] NSWCCA 194 DPP (Cth) v Garside [2016] VSCA 74 Einfeld v R (2010) 266 ALR 598; [2010] NSWCCA 87 R (Cth) v Nafarette [2022] NSWDC 225 R (Cth) v Simonet, unreported NSWDC 7 July 202 R v Burton [2020] NSWCCA 127 R v Delzotto [2022] NSWCCA 117 R v Edwards [2019] QCA 15 R v Henry (1999) NSWLR 346; [1999] NSWCCA 111 R v Hutchinson [2018] NSWCCA 152 R v Wran [2016] NSWSC 1015 Western Australia v Collier (2007) 178 A Crim R 310; [2007] WASCA 250
Category:	Sentence
Parties:	Commonwealth Director of Public Prosecution (Crown) Brett John Finch (Offender)
Representation:	Crown Counsel: Mr Jordan Defence Counsel: Mr N Smith
File Number(s):	21/353905
Publication restriction:	The Court notes a suppression order made on 5 November 2021 in the County Court of Victoria prohibiting the publication of any information identifying the person referred to herein as RB, or his whereabouts. The order extends to publication anywhere in Australia and is extant until 22 May 2031. Further, the schedule to these Remarks on sentence is to be marked “Not for Publication”. I make an order that the content of the schedule is not to be published pursuant to s7(b) of the Court Suppression and Non-Publication Orders Act 2010.