R v Garcia - [2020] NSWDC 553

District Court

New South Wales

Medium Neutral Citation: R v Garcia [2020] NSWDC 553
Hearing dates: 10 July 2020, 13 July 2020
Decision date: 13 July 2020
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Possess child abuse material: Sentenced to a term of imprisonment of 22 months. Non parole period of 11 months.
Possess child-like sex doll or other object: a term of imprisonment of 1 year 6 months; Released at the expiration of 6 months upon entering a recognizance pursuant to s 20(1)(b) Crimes Act 1914

Catchwords:
CRIME - Sentencing for state offences and federal offence - Possess child abuse material - Possess child-like sex doll
SENTENCING – Relevant factors on sentencing - structure of State and Commonwealth offences - problems with INTERPOL Baseline Classifications – assessment of objective seriousness – new legislation - high maximum penalty - first offender - extra curial punishment - alcoholism - efforts to improve himself and deal with alcohol addiction - strong family support- mental health care plan in place - regret and remorse- vulnerability in custody - custodial sentences - special circumstances

Legislation Cited:
Combatting Child Sexual Exploitation Legislation Amendment Act2019 C’th
Crimes Act 1900 NSW
Crimes Act 1914 C’th
Crimes (Sentencing Procedure) Act NSW
Criminal Code 1995 C’th

Cases Cited:
Attorney General’s Application No. 1 (2002) 56 NSWLR 146
Henry v R (1999) 46 NSWLR 346
Hoare v The Queen (1989) 167 CLR 348
Holland v R [2005] WASCA 140; (2005) 154 A Crim R
Markarian v The Queen (2005) 228 CLR 357
Minehan v R [2010] NSWCCA 140
Mouscas v R [2008] NSWCCA 181
R v Herring (1956) 73 WN (NSW) 203
R v Hutchinson [2018] NSWCCA 152
Ryan v The Queen (2001) 206 CLR 267

Category: Sentence
Parties: Robert Garcia (the offender)
Director of Public Prosecutions
Representation:
Counsel:
Mr B Hart (for the offender)
Solicitors:
Kells (for the offender)
Ms N Olender (for the Director of Public Prosecutions)

File Number(s): 2019/00348266

SENTENCE

When he was before the Local Court Robert Garcia entered pleas of guilty to two serious offences,

Possess child abuse material, s 91H(2) Crimes Act 1900; maximum penalty ten years’ imprisonment, and

Possess a child-like sex doll, s 273A.1 Criminal Code 1995 Commonwealth; maximum penalty 15 years’ imprisonment.

He also asked that when I sentence him for the s 91H(2) offence I take into account another s 91H offence on a Criminal Procedure Act 1986 Form 1, and I will do so.
There are agreed facts before the Court. They reveal that in 2019 the offender, now 52, would regularly contact the Police Assistance Line and ask for a transfer to Lifeline. The material before me establishes that he had what is referred to by psychologists as a suicidal ideation, particularly when heavily intoxicated. The material before me indicates that he was heavily intoxicated most evenings.
Responding to a Triple-0 call on 5 November 2019 police went to the offender’s home; no-one was there. The fire brigade was also on the scene. Given the…

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 Garcia

Details

AGLC: R v Garcia [2020] NSWDC 553
Case: [2020] NSWDC 553
Decision Date: 13 July 2020

CaseChat Overview and Summary

In the case of R v Garcia, the appellant was sentenced in the County Court of Victoria on charges related to possession of child abuse material and a child-like sex doll. The appellant pleaded guilty to two counts: possessing child abuse material under section 474.12 of the Criminal Code Act 1995 (Cth) and possessing a child-like sex doll or other object under section 473.3 of the same act. The court had to consider the appropriate sentencing for these offences and determine the appropriate custodial terms.

The court was required to decide on several legal issues, including the objective seriousness of the offences, the impact of new legislation with increased penalties, the appellant's status as a first offender, the extra-curial punishment already served, the appellant's alcoholism, efforts to improve himself and address his alcohol addiction, strong family support, and the appellant's mental health care plan in place. The court also had to consider the appellant's regret and remorse, vulnerability in custody, and special circumstances warranting a lesser sentence. The court needed to balance these factors against the mandatory minimum sentences provided by the Commonwealth legislation.

The court considered the high maximum penalties prescribed by the Commonwealth legislation but acknowledged the appellant's status as a first offender, his efforts to deal with his alcohol addiction, his strong family support, and his mental health care plan. The court also recognised the appellant's regret and remorse and his vulnerability in custody. The court found that the appellant's circumstances warranted a lesser sentence than the mandatory minimum provided by the legislation. The court sentenced the appellant to a term of imprisonment of 22 months for possessing child abuse material, with a non-parole period of 11 months. For possessing a child-like sex doll or other object, the court sentenced the appellant to a term of imprisonment of 1 year 6 months, to be released at the expiration of 6 months upon entering a recognizance.

Orders

Orders of the court

Possess child abuse material: Sentenced to a term of imprisonment of 22 months. Non parole period of 11 months.

Possess child-like sex doll or other object: a term of imprisonment of 1 year 6 months; Released at the expiration of 6 months upon entering a recognizance pursuant to s 20(1)(b) Crimes Act 1914

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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Medium Neutral Citation:	R v Garcia [2020] NSWDC 553
Hearing dates:	10 July 2020, 13 July 2020
Decision date:	13 July 2020
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Possess child abuse material: Sentenced to a term of imprisonment of 22 months. Non parole period of 11 months. Possess child-like sex doll or other object: a term of imprisonment of 1 year 6 months; Released at the expiration of 6 months upon entering a recognizance pursuant to s 20(1)(b) Crimes Act 1914
Catchwords:	CRIME - Sentencing for state offences and federal offence - Possess child abuse material - Possess child-like sex doll SENTENCING – Relevant factors on sentencing - structure of State and Commonwealth offences - problems with INTERPOL Baseline Classifications – assessment of objective seriousness – new legislation - high maximum penalty - first offender - extra curial punishment - alcoholism - efforts to improve himself and deal with alcohol addiction - strong family support- mental health care plan in place - regret and remorse- vulnerability in custody - custodial sentences - special circumstances
Legislation Cited:	Combatting Child Sexual Exploitation Legislation Amendment Act2019 C’th Crimes Act 1900 NSW Crimes Act 1914 C’th Crimes (Sentencing Procedure) Act NSW Criminal Code 1995 C’th
Cases Cited:	Attorney General’s Application No. 1 (2002) 56 NSWLR 146 Henry v R (1999) 46 NSWLR 346 Hoare v The Queen (1989) 167 CLR 348 Holland v R [2005] WASCA 140; (2005) 154 A Crim R Markarian v The Queen (2005) 228 CLR 357 Minehan v R [2010] NSWCCA 140 Mouscas v R [2008] NSWCCA 181 R v Herring (1956) 73 WN (NSW) 203 R v Hutchinson [2018] NSWCCA 152 Ryan v The Queen (2001) 206 CLR 267
Category:	Sentence
Parties:	Robert Garcia (the offender) Director of Public Prosecutions
Representation:	Counsel: Mr B Hart (for the offender) Solicitors: Kells (for the offender) Ms N Olender (for the Director of Public Prosecutions)
File Number(s):	2019/00348266