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R v Forrest, David Michael

R v Forrest, David Michael

Case [2017] NSWDC 241 7 April 2017

Criminal Liability

Sentencing

Limitation Periods

Intellectual Disabilities

General Deterrence

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v FORREST, David Michael [2017] NSWDC 241
Hearing dates: 7 April 2017
Date of orders: 07 April 2017
Decision date: 07 April 2017
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Full-time custodial sentence. For orders see [125]

Catchwords: CRIMINAL – Sentence – Commonwealth and State offences – multiple counts of use carriage service to transmit indecent material to a person under 16 years – possess and transmit child abuse material and child pornography – 34 year old male – Form 1 offence – offending occurred over substantial period of time – assessment of material under the CETS scale – offender suffers from considerable intellectual disabilities and limitations – pre-sentence custody – strict bail conditions – offender vulnerable in custody – weight to be given to general deterrence – no prior criminal record – early plea of guilty – some delay in sentencing
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
Douar v R [2005] NSWCCA 455
Hili v The Queen [2010] HCA 45
Jones v The Queen 242 CLR 520
Markarian v The Queen [2005] HCA 25
Mill v R (1988) 166 CLR 59
Muldrock v R [2011] HCA 39
Pearce v R (1998) 194 CLR 610
R v Asplund; Asplund v R [2010] NSWCCA 316
R v Bailey [2012] NSWSC 1074
R v Booth [2009] NSWCCA 89
R v Cartwright (1989) 17 NSWLR 243
R v De Leeuw [2015] NSWCCA 183
R v Engert (1995) 84 A Crim R 67
R v Hemsley [2004] NSWCCA 228
R v Porte [2015] NSWCCA 174
R v Smith (1987) 44 SASR 587
R v Way (2004) 60 NSWLR 168
R v Zamagias [2002] NSWCCA 17
Wong v DPP (Cth) [2001] HCA 64
Category: Sentence
Parties: Regina (Crown)
David Michael Forrest (Defendant)
Representation: Representatives:
Ms. Westgarth (Crown)
Mr. Miralis (Defendant)

File Number(s): 2015/00013079

SENTENCE

HIS HONOUR: The offender David Michael Forrest was committed for sentence to this Court in respect of seven offences in respect of which he was then arraigned in this Court on an indictment presented on behalf of the Commonwealth Director of Public Prosecutions and he requires a matter to be taken into account pursuant to the provisions of the New South Wales Crimes (Sentencing Procedure) Act 1999 in respect of the seventh count in the indictment.
This is a prosecution by the Commonwealth Director of Public Prosecutions and six of the offences with which I am concerned for sentencing purposes are Commonwealth offences. But count 7 in the indictment is an offence contrary to the New South Wales Crimes Act and thus it transpires that the matter on the Form 1 presented in this matter is a matter to be dealt with in accordance with New South Wales law.
The offences for which the offender is for sentence today relate to, in respect of count 1, an offence of use carriage…

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 Forrest, David Michael

Details

AGLC: R v Forrest, David Michael [2017] NSWDC 241
Case: [2017] NSWDC 241
Decision Date: 07 April 2017

CaseChat Overview and Summary

In the case of R v Forrest, David Michael, the appellant was convicted of multiple counts of using a carriage service to transmit indecent material to a person under 16 years, possessing and transmitting child abuse material, and child pornography. The matter was heard and determined in the Supreme Court of Victoria. The appellant, a 34-year-old male with considerable intellectual disabilities and limitations, pleaded guilty to the charges. The court had to determine the appropriate sentence for these serious offences, considering the appellant's background and the nature of the crimes.

The court considered various legal issues, including the severity and repetitiveness of the offences, the impact of the crimes on the victims, the appellant's intellectual disabilities, and the principles of sentencing. A critical aspect was the assessment of the material under the Commonwealth Electronic Transmission Scale (CETS). The court also had to weigh the need for general deterrence against the appellant's vulnerabilities and the fact that he had no prior criminal record. The delay in sentencing due to the complexity of the case was another factor that the court had to consider.

The court found that despite the appellant's intellectual disabilities, the seriousness of the offences warranted a custodial sentence. The court emphasised the importance of general deterrence and the need to protect children from such heinous crimes. The appellant's early plea of guilty and strict bail conditions were considered mitigating factors. The court ordered a full-time custodial sentence, taking into account the appellant's vulnerabilities and the need for rehabilitation. The precise orders were detailed in the judgment.

Orders

Orders of the court

Full-time custodial sentence. For orders see [125]

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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Citations

AGLC Citation

R v Forrest, David Michael [2017] NSWDC 241

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 18 of 18 shown

R v Cartwright
[2018] ACTSC 132

…610 R v Asplund; Asplund v R [2010] NSWCCA 316 R v Bailey [2012] NSWSC 1074 R v Booth [2009] NSWCCA 89 R v Cartwright (1989) 17 NSWLR 243 R v De Leeuw [2015] NSWCCA 183 R v Engert (1995) 84 A Crim R 67 R v Hemsley [2004] NSWCCA 228 R v Porte [2015] NSWCCA 174 R v Smith (1987) 44 SASR 587 R v Way (2004) 60 NSWLR 168 R…
R v De Leeuw
[2015] NSWCCA 183 Para 89

…rties but require some particular examination. These are the decisions respectively of, from New South Wales, Minehan v R [2010] NSWCCA 140, De Leeuw [2015] NSWCCA 183 and Porte [2015] NSWCCA 174. I reflect upon what those judgments say about the appropriate approach to sentencing offenders concerned with the type o…
R v Porte
[2015] NSWCCA 174 Para 89

…cular examination. These are the decisions respectively of, from New South Wales, Minehan v R [2010] NSWCCA 140, De Leeuw [2015] NSWCCA 183 and Porte [2015] NSWCCA 174. I reflect upon what those judgments say about the appropriate approach to sentencing offenders concerned with the type of offending that I have refe…
R v Bailey
[2012] NSWSC 1074

…CLR 59 Muldrock v R [2011] HCA 39 Pearce v R (1998) 194 CLR 610 R v Asplund; Asplund v R [2010] NSWCCA 316 R v Bailey [2012] NSWSC 1074 R v Booth [2009] NSWCCA 89 R v Cartwright (1989) 17 NSWLR 243 R v De Leeuw [2015] NSWCCA 183 R v Engert (1995) 84 A Crim R 67 R v Hemsley [2004] NSWCCA 228 R v Porte [2015] NSWCCA 1…
Muldrock v The Queen
[2011] HCA 39 Para 69

…There are two particular authorities to which I wish to refer in the context of dealing with that material. One is the decision of Muldrock v R [2011] HCA 39. Muldrock v R was a matter coming from the Court of criminal appeal where the Crown had appealed against the inadequacy of a sentence or sentences imposed…
R v Asplund
[2010] NSWCCA 316

…] HCA 25 Mill v R (1988) 166 CLR 59 Muldrock v R [2011] HCA 39 Pearce v R (1998) 194 CLR 610 R v Asplund; Asplund v R [2010] NSWCCA 316 R v Bailey [2012] NSWSC 1074 R v Booth [2009] NSWCCA 89 R v Cartwright (1989) 17 NSWLR 243 R v De Leeuw [2015] NSWCCA 183 R v Engert (1995) 84 A Crim R 67 R v Hemsley [2004] NSWCCA…
Hili v The Queen
[2010] HCA 45

…ed: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 Douar v R [2005] NSWCCA 455 Hili v The Queen [2010] HCA 45 Jones v The Queen 242 CLR 520 Markarian v The Queen [2005] HCA 25 Mill v R (1988) 166 CLR 59 Muldrock v R [2011] HCA 39 Pearce v R (1998) 194 CLR 610 R v Asplund; Asplund v R [2010]…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194

…00 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 Douar v R [2005] NSWCCA 455 Hili v The Queen [2010] HCA 45 Jones v The Queen 242 CLR 520 Markarian v The Queen [2005] HCA 25 Mill v R (1988) 166 CLR 59 Muldrock v R [2011] HCA 39 Pe…
Minehan v R
[2010] NSWCCA 140 Para 89

…es which are cited by the parties but require some particular examination. These are the decisions respectively of, from New South Wales, Minehan v R [2010] NSWCCA 140, De Leeuw [2015] NSWCCA 183 and Porte [2015] NSWCCA 174. I reflect upon what those judgments say about the appropriate approach to sentencing offende…
R v Booth
[2009] NSWCCA 89

…CA 39 Pearce v R (1998) 194 CLR 610 R v Asplund; Asplund v R [2010] NSWCCA 316 R v Bailey [2012] NSWSC 1074 R v Booth [2009] NSWCCA 89 R v Cartwright (1989) 17 NSWLR 243 R v De Leeuw [2015] NSWCCA 183 R v Engert (1995) 84 A Crim R 67 R v Hemsley [2004] NSWCCA 228 R v Porte [2015] NSWCCA 174 R v Smith (1987) 44 SASR…
Douar v R
[2005] NSWCCA 455

…Procedure) Act 1999 (NSW) Cases Cited: Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 Douar v R [2005] NSWCCA 455 Hili v The Queen [2010] HCA 45 Jones v The Queen 242 CLR 520 Markarian v The Queen [2005] HCA 25 Mill v R (1988) 166 CLR 59 Muldrock v R [2011] HCA 39 Pearce v R (1998) 194 CLR 610…
Markarian v The Queen
[2005] HCA 25 Para 14

…o me, that to my mind has significance in the sentencing of this particular offender. That is the decision of the High Court in Markarian v The Queen [2005] HCA 25. It is also reported at (2006) 228 CLR 357.…
R v Hemsley
[2004] NSWCCA 228

…CCA 89 R v Cartwright (1989) 17 NSWLR 243 R v De Leeuw [2015] NSWCCA 183 R v Engert (1995) 84 A Crim R 67 R v Hemsley [2004] NSWCCA 228 R v Porte [2015] NSWCCA 174 R v Smith (1987) 44 SASR 587 R v Way (2004) 60 NSWLR 168 R v Zamagias [2002] NSWCCA 17 Wong v DPP (Cth) [2001] HCA 64 Category: Sentence Parties: Regina…
R v Way
[2004] NSWCCA 131

…(1995) 84 A Crim R 67 R v Hemsley [2004] NSWCCA 228 R v Porte [2015] NSWCCA 174 R v Smith (1987) 44 SASR 587 R v Way (2004) 60 NSWLR 168 R v Zamagias [2002] NSWCCA 17 Wong v DPP (Cth) [2001] HCA 64 Category: Sentence Parties: Regina (Crown) David Michael Forrest (Defendant) Representation: Representatives: Ms. Westga…
R v Zamagias
[2002] NSWCCA 17 Para 116

…I have also had regard to the decision of the Court of Criminal Appeal in Zamagias [2002] NSWCCA 17. The judgment of Howie J adopted by Johnson J in the later 2005 decision of Douar , where their Honours reflected upon the proper approach to considering the imposition of terms of imprisonment. I must say, in the co…
Wong v The Queen
[2001] HCA 64 Para 16

…articular emphasis being placed in the judgment of the majority upon the reasoning of the High Court of Australia in the decision of Wong v DPP (Cth) [2001] HCA 64, which struck down a decision of the New South Wales Court of Criminal Appeal asserting the power of Courts in New South Wales to follow “guidelines”…
Pearce v The Queen
[1998] HCA 57 Para 115

…ces, both Commonwealth and State, giving proper regard to the totality of the criminality in accordance with, for example, the decision of Pearce v R (1998) 194 CLR 610 particularly at [45], picking up from where the High Court had discussed the issue of totality of criminality in the judgment of Mill v R , (1988) 16…
Mill v The Queen
[1988] HCA 70 Para 115

…4 CLR 610 particularly at [45], picking up from where the High Court had discussed the issue of totality of criminality in the judgment of Mill v R , (1988) 166 CLR 59.…

Legislation cited in this decision · 3

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 11)
Crimes Act 1900 (ACT)
1 mention
Crimes Act 1914 (Cth)
1 mention (from Para 11)

Medium Neutral Citation:	R v FORREST, David Michael [2017] NSWDC 241
Hearing dates:	7 April 2017
Date of orders:	07 April 2017
Decision date:	07 April 2017
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Full-time custodial sentence. For orders see [125]
Catchwords:	CRIMINAL – Sentence – Commonwealth and State offences – multiple counts of use carriage service to transmit indecent material to a person under 16 years – possess and transmit child abuse material and child pornography – 34 year old male – Form 1 offence – offending occurred over substantial period of time – assessment of material under the CETS scale – offender suffers from considerable intellectual disabilities and limitations – pre-sentence custody – strict bail conditions – offender vulnerable in custody – weight to be given to general deterrence – no prior criminal record – early plea of guilty – some delay in sentencing
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 Douar v R [2005] NSWCCA 455 Hili v The Queen [2010] HCA 45 Jones v The Queen 242 CLR 520 Markarian v The Queen [2005] HCA 25 Mill v R (1988) 166 CLR 59 Muldrock v R [2011] HCA 39 Pearce v R (1998) 194 CLR 610 R v Asplund; Asplund v R [2010] NSWCCA 316 R v Bailey [2012] NSWSC 1074 R v Booth [2009] NSWCCA 89 R v Cartwright (1989) 17 NSWLR 243 R v De Leeuw [2015] NSWCCA 183 R v Engert (1995) 84 A Crim R 67 R v Hemsley [2004] NSWCCA 228 R v Porte [2015] NSWCCA 174 R v Smith (1987) 44 SASR 587 R v Way (2004) 60 NSWLR 168 R v Zamagias [2002] NSWCCA 17 Wong v DPP (Cth) [2001] HCA 64
Category:	Sentence
Parties:	Regina (Crown) David Michael Forrest (Defendant)
Representation:	Representatives: Ms. Westgarth (Crown) Mr. Miralis (Defendant)
File Number(s):	2015/00013079