R v Forbes - [2014] ACTSC 91

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 Minehan v R [2010] NSWCCA 140 R v Clinton James Morosi [2013] ACTSC, Burns J, 28 August 2013 R v David John Haynes [2009] ACTSC, Refshauge J, 18 February 2010 R v Gary Mills [2012] ACTSC, Higgins CJ, 29 August 2013 R v Gent [2005] NSWCCA 370 R v John Andrew Haynes [2010] ACTSC, Refshauge J, 14 May 2010 R v John Desmond Thompson [2008] ACTSC, Penfold J, 5 December 2008 R v Mark William Buckley [2009] ACTSC, Gray J, 17 June 2010 R v [Name suppressed] [2013] NSWDC, Woodburne J, 24 May 2013 R v Whyte [2013] QDC, Martin J, 11 November 2013 Smit v The State of Western Australia [2011] WASCA 124
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…

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 Forbes [2014] ACTSC 91
Case: [2014] ACTSC 91
Decision Date: 27 February 2014

CaseChat Overview and Summary

In the case of R v Forbes, the offender was found guilty of using a carriage service to access child pornography and possessing child pornography. The case was heard in a court of law in Australia. The legal issues that the court was required to decide included whether the sentencing judge must view the pornography concerned, whether a representative sample to be viewed by the sentencing judge must be agreed to by both parties, and whether counsel may view child pornography.

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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