SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v FORBES |
Medium Neutral Citation: | [2014] ACTSC 91 |
Hearing Date: | 27 February 2014 |
Before: | Penfold J |
Category: | Sentence |
Catchwords: | SENTENCE – using carriage service to access child pornography – possessing child pornography – assessment of pornographic material – matters relevant in sentencing for child pornography offences – offender sentenced to terms of imprisonment but no immediate custody. CRIMINAL LAW – PARTICULAR OFFENCES – Miscellaneous offences and matters – child pornography offences – whether sentencing judge must view pornography concerned – whether representative sample to be viewed by sentencing judge must be agreed to be representative by both parties – whether counsel may view child pornography – practicality of either judge or counsel viewing all or even sample of pornographic material where quantity of material is high – by consent, offender sentenced on basis of judge’s viewing of small sample asserted to be “random” sample. |
Legislation cited: | Crimes Act 1914 (Cth), s 19AC Criminal Code Act1995 (Cth), ss 437.1, 474.19(1)(a)(i) Crimes Act 1900 (ACT), s 65(1) Crimes (Sentence Administration) Act 2005 (ACT) |
Cases cited: | Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2 DPP v Brendon James Hegarty [2010] VCC, Howard J, 10 March 2010 R v Clinton James Morosi [2013] ACTSC, Burns J, 28 August 2013 R v John Andrew Haynes [2010] ACTSC, Refshauge J, 14 May 2010 |
Decision: | 1. The offender is sentenced as follows: (a) for using a carriage service to access child pornography – to imprisonment for 17 months; (b) for possessing child pornography – to imprisonment for 8 months; the second sentence accumulated so as to add one month to the first sentence and giving a total sentence of 18 months. 2. For the access offence, the offender is to be released today on a recognizance release order for two years with security of $1,000. 3. For the possession offence, the sentence is to be suspended with effect from today, and the offender is to be released subject to a good behaviour order for two years, subject to the conditions: (a) that for such period not exceeding 24 months as Corrective Services considers necessary, the offender accept the supervision of ACT Corrective Services and obey all reasonable directions of the Director-General or delegate, and for that purpose that the offender report to Eclipse House within two working days from 27 February 2014 to arrange that supervision; (b) that the offender undertake… |
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- R v Forbes [2014] ACTSC 91
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- [2014] ACTSC 91
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CaseChat Overview and Summary
The court determined that it was not necessary for the sentencing judge to view all of the pornographic material, as the quantity was high. Instead, the court accepted that a small sample could be viewed, which was asserted to be a "random" sample. The court also found that it was not necessary for the parties to agree on the representative sample. Furthermore, the court held that counsel could view child pornography if necessary for the preparation of the case.
The offender was sentenced to imprisonment for 17 months for using a carriage service to access child pornography and 8 months for possessing child pornography. The sentences were to be accumulated, resulting in a total sentence of 18 months. However, the offender was to be released on a recognizance release order for two years with security of $1,000 for the access offence and a good behaviour order for two years for the possession offence, subject to certain conditions.
In summary, the court held that it was not necessary for the sentencing judge to view all of the pornographic material, and that a small sample could be viewed instead. The court also found that it was not necessary for the parties to agree on the representative sample and that counsel could view child pornography if necessary for the preparation of the case. The offender was sentenced to imprisonment, but no immediate custody was ordered.
Orders
Orders of the court
1. The offender is sentenced as follows: (a) for using a carriage service to access child pornography – to imprisonment for 17 months; (b) for possessing child pornography – to imprisonment for 8 months; the second sentence accumulated so as to add one month to the first sentence and giving a total sentence of 18 months. 2. For the access offence, the offender is to be released today on a recognizance release order for two years with security of $1,000. 3. For the possession offence, the sentence is to be suspended with effect from today, and the offender is to be released subject to a good behaviour order for two years, subject to the conditions: (a) that for such period not exceeding 24 months as Corrective Services considers necessary, the offender accept the supervision of ACT Corrective Services and obey all reasonable directions of the Director-General or delegate, and for that purpose that the offender report to Eclipse House within two working days from 27 February 2014 to arrange that supervision; (b) that the offender undertake such counselling, courses, programs or treatments as directed by his supervising officer; and (c) that within the next 12 months, the offender complete 100 hours of community service.
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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