McClellan CJatCL at 1; Hislop J at 49; Barr AJ at 50
DECISION:
1. Crown appeal upheld. 2. The sentence imposed in the District Court is quashed. 3. In relation to the offence contrary to s 474.26(1) of the Criminal Code Act 1995 (Cth) a term of imprisonment of 18 months to date from 24 February 2010 and expire on 23 August 2011, with the respondent to be released on or after 24 August 2010 upon entering into a recognisance of $1,000 to be of good behaviour for the remainder of the term of the sentence. 4. Order that the respondent’s Dell laptop computer and Bluetooth cable be forfeited pursuant to s 48(2) of the Proceeds of Crimes Act 2002 (Cth).
CATCHWORDS:
CRIMINAL LAW - Crown appeal against sentence - guilty plea - whether sentence manifestly inadequate - whether sentencing judge erred in finding that vow of celibacy imposed on Catholic priests by the Catholic Church was a mitigating factor - whether sentencing judge erred in finding that absence of actual victim created situation of entrapment and whether this was a mitigating factor
The Crown (appellant) Robert McGregor Fuller (respondent)
FILE NUMBER(S):
CCA 2009/185763
COUNSEL:
P McGuire (Crown/appellant) G Walsh (respondent)
SOLICITORS:
Commonwealth Director of Public Prosecutions (appellant) Greg Walsh & Co (respondent)
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
2009/185763
LOWER COURTJUDICIAL OFFICER:
Hughes DCJ
LOWER COURT DATE OF DECISION:
24 February 2010
2009/185763
McCLELLAN CJ at CL HISLOP J BARR AJ
FRIDAY 22 OCTOBER 2010
R v FULLER, Robert McGregor
Judgment
: The respondent pleaded guilty in the Local Court to an offence contrary to s 474.26(1) of the Criminal Code 1995 (Cth) being that:
“Between about 21 July 2009 and 13 August 2009 at Liverpool, New South Wales, used a carriage service, namely the internet, to transmit a communication to another person believed to be under 16 years of age with the intention of procuring the recipient to engage in sexual activity with himself.”
2 The maximum penalty for the offence is imprisonment for 15 years and/or a fine not exceeding $99,000. The respondent was sentenced to a fixed term of imprisonment of 6 months commencing on 24 February 2010 and ending on 23 August 2010. The sentencing judge allowed the respondent a 25% reduction…
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 Fuller [2010] NSWCCA 192
Case
[2010] NSWCCA 192
Decision Date
CaseChat Overview and Summary
The appeal heard by the court involved the Crown challenging the sentence imposed on the respondent, Fuller, who had pleaded guilty to producing child pornography. The sentencing judge had found that the vow of celibacy imposed on Catholic priests by the Catholic Church and the entrapment situation were mitigating factors, which resulted in a relatively lenient sentence. The Crown argued that the sentence was manifestly inadequate and that the sentencing judge had erred in considering these factors.
The legal issues before the court were whether the sentencing judge was correct in considering the vow of celibacy and the entrapment situation as mitigating factors and whether these factors warranted a reduced sentence. The Crown contended that these factors should not have been considered as they did not directly relate to the offence or the offender's culpability. The respondent argued that these factors should have been taken into account as they provided insight into his character and circumstances.
The court held that the sentencing judge had erred in considering the vow of celibacy and the entrapment situation as mitigating factors. The vow of celibacy did not directly relate to the offence or the offender's culpability, and the entrapment situation did not absolve the respondent of his criminal conduct. The court found that the sentence was manifestly inadequate and increased the sentence imposed on the respondent. The court emphasised that the focus of sentencing should be on the offence, the offender, and the deterrence and rehabilitation of the offender, rather than extraneous factors.