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R v Fulop

R v Fulop

Case [2009] VSCA 296 7 December 2009

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2008 0501

THE QUEEN
	v
JOZSEF STEVEN FULOP

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JUDGES:	BUCHANAN and NETTLE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 December 2009
DATE OF JUDGMENT:	7 December 2009
DATE OF MENTION AND REVISED ORDER:	9 December 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 296	1^st Revision 8 February 2010, page 2, line 5
JUDGMENT APPEALED FROM:	Unreported County Court of Victoria, 20 December 2007, Judge Pullen

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Criminal law – Sentence – Using a carriage service to access child pornography contrary to the Criminal Code (Cth) – Possession of child pornography contrary to the Crimes Act 1958 (Vic) – Failure of sentencing judge to specify a commencement date of the State sentence – Cumulation of minimum terms impermissible – Cumulation of sentences not double punishment – Remorse not entailed by pleas of guilty – Intended total effective sentence of four years’ imprisonment with a minimum term of three years’ imprisonment manifestly excessive.

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APPEARANCES:	Counsel	Solicitors
For the Cth Director	Mr G F Meredith	Solicitor to Cth DPP (Ms K Breckweg)
For the Appellant	Mr L C Carter	C D Traill Lawyers

BUCHANAN JA:

The appellant was arraigned in the County Court and pleaded guilty to a presentment containing one count of using a carriage service to access child pornography, contrary to the provisions of the Criminal Code of the Commonwealth, and one count of knowingly possessing child pornography, contrary to the provisions of s 70 of the Crimes Act 1958 of the State of Victoria. The maximum custodial sentence for the Commonwealth offence was ten years' imprisonment; in the case of the state offence it was five years' imprisonment.

After a plea, the appellant was sentenced on count 1 to be imprisoned for a term of three years and six months commencing on 20 December 2007, with a minimum term of two years' imprisonment. The appellant was sentenced on count 2 to be imprisoned for a term of two years and six months, with a minimum term of one year's imprisonment. The sentencing judge ordered that six months of the sentence on count 2 be cumulated on the sentence on count 1, and that the non-parole period of the sentence on count 2 be served cumulatively upon the non-parole period of the sentence on count 1. The appellant has been granted leave to appeal against the sentence by a single judge of this Court.

The Federal Bureau of Investigation in the United States of America found that child pornography was available through an internet message board. They ascertained that the appellant, amongst others, had gained access to the material. The FBI passed that information on to the Australian Federal Police, who executed a search warrant at the residence of the appellant and seized a computer. Examination of the hard drive of the computer revealed 2,061 pictures, 155 videos and 91 text files containing child pornography. The search of the premises revealed 69 compact disks and four DVDs containing…

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 Fulop

Details

AGLC: R v Fulop [2009] VSCA 296
Case: [2009] VSCA 296
Decision Date: 7 December 2009

CaseChat Overview and Summary

In the case of R v Fulop, the appellant was convicted and sentenced for accessing child pornography using a carriage service and for possession of child pornography. The appeal was against the sentence imposed by the County Court of Victoria. The appellant argued that the sentencing judge's failure to specify a commencement date for the state sentence resulted in an excessive cumulation of minimum terms, amounting to double punishment, and that the intended total effective sentence was manifestly excessive.

The legal issues before the court included whether the appellant's sentence constituted double punishment, whether the total effective sentence was manifestly excessive, and whether the sentencing judge should have specified a commencement date for the state sentence. The court held that while the failure to specify a commencement date for the state sentence did not constitute double punishment, it did result in an impermissible cumulation of minimum terms. The court further held that the intended total effective sentence, which was four years’ imprisonment with a minimum term of three years’ imprisonment, was manifestly excessive.

The court found that the appellant's remorse was not determined by his pleas of guilty and that the intended total effective sentence was manifestly excessive due to the nature of the offences and the appellant's culpability. The court reduced the intended total effective sentence to three years’ imprisonment with a minimum term of two years’ imprisonment, and ordered that the state sentence commence on 1 August 2018.

Orders