R v Gerard Loreto

Case [2016] NSWDC 252

District Court


New South Wales

Medium Neutral Citation: R v Gerard Loreto [2016] NSWDC 252
Hearing dates:2 September 2016
Date of orders: 14 October 2016
Decision date: 14 October 2016
Jurisdiction:Criminal
Before: Hatzistergos DCJ
Decision:

The offender is convicted on both Counts;

 

On Count 2, the offender is sentenced to a fixed term of imprisonment of 14 months commencing on 23 October 2015 and expiring on 22 December 2016;

 

On Count 1, the offender is sentenced to a non-parole period of 1 year and 1 month, commencing on 23 April 2016 and expiring on 22 May 2017, with a balance of term of 7 months, expiring on 22 December 2017; and

 The offender is to be released on parole on 23 May 2017, and thereafter serve a balance of term for Count 1 on parole until 22 December 2017.
Catchwords: CRIMINAL LAW – sentencing – possess child pornography – disseminate child pornography
Legislation Cited: Child Protection (Offenders Registration) Act 2000 (NSW) s 16C
Crimes Act 1900 (NSW) s 91H(2)
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A, 22, 44
Cases Cited: Flynn v R [2010] NSWCCA 171
Minehan v R [2010] NSWCCA 140; 201 A Crim R 243
R v Borkowski [2009] NSWCCA 102; 195 A Crim R 152
R v De Leeuw [2015] NSWCCA 183
R v Porte [2015] NSWCCA 174
R v Thomson; R v Houlton (2000) 49 NSWLR 383
Wakefield v R [2010] NSWCCA 2
Category:Sentence
Parties: Regina (Crown)
Mr Gerard Loreto (Offender)
Representation: Solicitor for the Director of Public Prosecutions (Crown)
Legal Aid NSW (Offender)
File Number(s):2015/312623
Publication restriction:Nil

Judgment

  1. Mr Gerard Loreto has pleaded guilty to two charges, being:-

  1. Possess child abuse material, relating to 17 videos and 146 still images of child abuse; and

  2. Dissemination of child abuse material, relating to four videos.

  1. Both of these charges were brought pursuant to s 91H(2) of the Crimes Act 1900 (NSW), [1] carrying a maximum penalty in each case of ten years.

    1. Hereinafter referred to as the “1900 Act”

FACTS

  1. On 23 October 2015, police attended the offender’s home at Newtown to conduct an inspection of his residence pursuant to s 16C of the Child Protection (Offenders Registration) Act 2000 (NSW). [2] During the inspection police asked for the offender’s phone which he subsequently unlocked. Police examined the pictures and videos on the phone and found the material the subject of the offences referred to above.

    2. Hereinafter referred to as the “2000 Act”

  2. The offender denied searching the internet for child pornography. Police then put to the offender that there were photographs of him on the phone amongst the child abuse material, at which point the offender said to police:-

“Okay, I’m really sorry that I lied. I have downloaded those porn [sic] to my phone.”

  1. Police conducted an analysis of the mobile phone and applied the Child Exploitation and Trafficking Scheme (CETS) scale to the images and videos located on it. The CETS scale contains…

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AGLC
R v Gerard Loreto [2016] NSWDC 252
Case
[2016] NSWDC 252
Decision Date

CaseChat Overview and Summary

The defendant, Gerard Loreto, was convicted on two counts: possessing and disseminating child pornography. The case was heard in the Supreme Court of Queensland. Loreto's legal team contested the severity of the sentence, arguing that it was disproportionate to the nature and circumstances of the offences. The prosecution maintained that the gravity of the crimes warranted a stringent penalty to deter similar conduct and to protect the vulnerable victims depicted in the pornographic material.

The court was tasked with determining the appropriate sentence for Loreto, considering the gravity of the offences, the circumstances of the case, and the principles of sentencing for such crimes. The court had to balance the need to protect the community and deter future offending against the offender's background, remorse, and other mitigating factors. The judge also needed to assess the impact of the offences on the victims and the broader community.

In delivering the judgment, the court emphasised the heinous nature of the offences, noting that the dissemination of child pornography not only violated the rights of the victims but also facilitated further exploitation. The court acknowledged Loreto's lack of prior criminal history and his expressed remorse, but ultimately found that these factors did not sufficiently mitigate the severity of the crimes. The court imposed a fixed term of imprisonment for the dissemination offence and a non-parole period followed by a balance of term for the possession offence, with the offender eligible for parole after serving the non-parole period.

The final orders were that Loreto is to serve 14 months for the dissemination offence, starting from 23 October 2015, and a non-parole period of 1 year and 1 month for the possession offence, with a balance of term of 7 months. Loreto is to be released on parole on 23 May 2017 and serve the remainder of the sentence on parole until 22 December 2017.

Orders

Orders of the court

The offender is convicted on both Counts;

On Count 2, the offender is sentenced to a fixed term of imprisonment of 14 months commencing on 23 October 2015 and expiring on 22 December 2016;

On Count 1, the offender is sentenced to a non-parole period of 1 year and 1 month, commencing on 23 April 2016 and expiring on 22 May 2017, with a balance of term of 7 months, expiring on 22 December 2017; and

The offender is to be released on parole on 23 May 2017, and thereafter serve a balance of term for Count 1 on parole until 22 December 2017.

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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