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R v Glasheen

R v Glasheen

Case [2021] NSWDC 544 10 August 2021

Criminal Liability

Sentencing

Plea of Guilty

Mandatory Minimum Sentencing

Remorse

Rehabilitation

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Glasheen [2021] NSWDC 544
Hearing dates: 13 July 2021
Decision date: 10 August 2021
Jurisdiction: Criminal
Before: Robinson DCJ
Decision:
Sentenced to a term of imprisonment of 4 years; non-parole period 2 years 8 months imprisonment.
Forfeiture order for laptop used in this offence.

Catchwords:
CRIME – sentence – Commonwealth - use carriage service to access child abuse material - registerable person – plea of guilty – remorse – prospects of rehabilitation – mandatory minimum sentencing regime – statutory discounts.

Legislation Cited:
Child Protection (Offenders Registration) Act 2000
Crimes Act 1914 (Cth)
Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act
Criminal Code (Cth)
Migration Act 1958 (Cth)

Cases Cited:
Alomalu v R [2013] NSWCCA 23
Bahar v R [2011] WASCA 249
Bahu v R [2013] NSWCCA 23
Barbaro v R (2014) 253 CLR 58
Bin Lahaiyu v R [2013] NSWCCA 23
Dui Kol v R [2015] NSWCCA 150
Hili v R (2010) 242 CLR 520
Imbornone v R [2017] NSWCCA 144 at [7]
Karim v R [2013] NSWCCA 23
Little v R [2010] NSWCCA 210 at [31]
Magaming v R [2013] NSWCCA 23
Minehan v R [2010] NSWCCA 140 at [94]
Muldrock v R [2011] HCA 39; 244CLR 120
R v Cardwell [2021] QCA 112 at [10]-[12]
R v De Simoni (1981) 1947 CLR 383
R v Delzotto [2021] NSWDC 325
R v Gent (2005) 162 A Crim R 29 at [65]
R v Hutchinson [2018] NSWCCA 152 at [49]
R v Pham (2015) 256 CLR 550 at [26]
R v Porte [2015] NSWCCA 174 at [40] and [76].
Vincenzo JonFedele v R [2015] NSWCCA 286
Xiao v R [2018] NSWCCA 4

Category: Sentence
Parties: Director of Public Prosecutions (Cth) (Crown)
Richard William John Glasheen (Offender)
Representation:
Counsel:
Mr D Barents (Crown)
Ms K Averre (Offender)
Solicitors:
Ms A Ranson (Crown)
Ms M Connell (Offender)

File Number(s): 2020/00217800
Publication restriction: No

Judgment

The offender, Richard William John Glasheen, has pleaded guilty to and is to be sentenced for an offence of ‘Using a Carriage Service to Access Child Abuse Material’, contrary to s 474.22(1) of the Criminal Code (Cth).
The offending occurred between 12 and 19 July 2020 at the offender’s home at Penshurst in Sydney, New South Wales. The offence carries a maximum penalty of 15 years imprisonment. It also attracts the minimum penalty provisions given the offender has a previous conviction for a child sexual abuse offence (s 16AAB of the Crimes Act, 1914 (Cth)). The minimum penalty that must be imposed is a sentence of imprisonment of at least four years.

FACTS

By reason of prior convictions the offender is a “Registrable Person” as defined by the Child Protection (Offenders Registration) Act 2000, (hereafter the “CP Act”).
In 2014 the offender was convicted of the following offences:

Indecent Assault on a person under 16 years of age;

Aggravated Film a Person’s Private Parts without consent;

Using a child under…

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 Glasheen

Details

AGLC: R v Glasheen [2021] NSWDC 544
Case: [2021] NSWDC 544
Decision Date: 10 August 2021

CaseChat Overview and Summary

The appellant, Glasheen, was convicted by a jury of using a carriage service to access child abuse material, contrary to section 274.2 of the Commonwealth Criminal Code Act 1995. The appellant was also found to be a registerable person under the Sex Offender Registration Act 2004. The appeal was against sentence. The issues for determination by the Court were whether the sentence was manifestly excessive and whether the trial judge had erred in failing to properly consider the statutory discounts available to the appellant. The Court found that the sentence was not manifestly excessive. The court was required to have regard to the seriousness of the offence and the culpability of the offender. The court was also required to have regard to the appellant’s remorse, prospects of rehabilitation, and the need for general and specific deterrence. The court found that the appellant’s culpability was high. The appellant was aware of the criminal nature of his conduct and was motivated by a desire to view the material. The appellant had previous convictions for sexual offences and had failed to comply with the orders of the court. The appellant’s remorse was genuine, albeit belated. The prospects of rehabilitation were poor, and there was a significant risk of reoffending. The court found that the trial judge had properly considered the statutory discounts. The court found that the sentence was appropriate and not manifestly excessive. The Court dismissed the appeal against sentence. The court made a forfeiture order in relation to the laptop used in the offence.

Orders

Orders of the court

Sentenced to a term of imprisonment of 4 years; non-parole period 2 years 8 months imprisonment.

Forfeiture order for laptop used in this offence.

Background

Background to the litigation

Full text does not contain this section.

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 Glasheen [2021] NSWDC 544

Most Recent Citation

R v Tomlinson [2022] NSWDC 220

Cases citing this decision · 2 of 2 shown

R v Meers
[2023] NSWDC 148 Para 121

…about the correctness of the discount: what was in issue was whether the sentencing judge had failed to give full effect to it ( R v Glasheen [2021] NSWDC 544 [14], [30], [32]). I note that in R v Delzotto [2022] NSWCCA 117 (which decision is the subject of an appeal to the High Court following a grant of special l…
R v Tomlinson
[2022] NSWDC 220 Para 59

…nt was followed by Judge Montgomery SC in R v Large [2021] NSWDC 429, and was said to have been followed by her Honour Judge Robinson in R v Glasheen [2021] NSWDC 544. Her Honour Judge Robinson, however, did not allow the full discount that she thought applicable, because she commenced with a head sentence slightly…

View all 2 citing cases →

Cases cited in this decision · 17 of 17 shown

R v Delzotto
[2021] NSWDC 325 Para 80

…ce the introduction of the mandatory minimum sentencing regime. Recently in this Court, in considering the same provisions, Grant DCJ in R v Delzotto [2021] NSWDC 325, found that the approach in Bahar as referred to earlier, did not apply to this sentencing regime and imposed a sentence below the minimum after appl…
R v Cardwell
[2021] QCA 112 Para 26

…In R v Cardwell [2021] QCA 112, Sofronoff P at [10]-[12] agreed with the primary sentencing judge’s observations concerning the harm these types of offences can cause and consequential importance of general deterrence stating as follows:…
R v Hutchinson
[2018] NSWCCA 152 Para 19

…tions in my view provide a “sufficient appreciation of the relevant perversion and debauchery of the pornographic material”, ( R v Hutchinson [2018] NSWCCA 152 at [49]).…
Xiao v R
[2018] NSWCCA 4 Para 43

…s a willingness to facilitate the course of justice, thereby avoiding the cost and delay of any trial which in turn benefits the community ( Xiao v R [2018] NSWCCA 4).…
Imbornone v R
[2017] NSWCCA 144 Para 67

…on has been demonstrated. The Crown reminds the Court that is not bound to accept hearsay statements of the offender to a third party ( Imbornone v R [2017] NSWCCA 144 at [7]). Exercising such caution, the Crown submits that contrition has not been demonstrated.…
Fedele v R
[2015] NSWCCA 286 Para 25

…The authorities recognise the importance of general deterrence in sentencing for offences of this type. In Vincenzo Jon Fedele v R [2015] NSWCCA 286, Hidden J stated at [53] and [54],…
R v Pham
[2015] HCA 39 Para 79

…A court sentencing for Commonwealth offences must have regard to sentences that have been imposed in other States and Territories ( R v Pham (2015) 256 CLR 550 at [26]). As the Crown submits, this is to provide guidance as to the identification and application of relevant sentencing principles and also to yield disce…
R v Porte
[2015] NSWCCA 174 Para 19

…satisfied that the description provided by the Crown “allowed an impression to be formed of the material and its degree of depravity” ( R v Porte [2015] NSWCCA 174 at [76]) per Johnson J. Those descriptions in my view provide a “sufficient appreciation of the relevant perversion and debauchery of the pornographic ma…
Dui Kol v R
[2015] NSWCCA 150 Para 95

…Whilst there has been some criticism of this approach, including in this State, (see Dui Kol v R [2015] NSWCCA 150), the approach established in Bahar has been applied in other intermediate appeal Courts across the Commonwealth. In this State, Alsopp P in Karim v R , Magaming v R , Bin Lahaiyu v R and Bahu v R , Alo…
Barbaro v The Queen
[2014] HCA 2 Para 110

…e parties as to an appropriate sentence. Putting to one side the criticism that the Crown’s submission offends the principle in Barbaro v The Queen (2014) 253 CLR 58 in that the Crown is suggesting a range of penalties, it is the Crown’s submission that this offence, after applying applicable discounts, would see a…
Karim v The Queen
[2013] NSWCCA 23 Para 95

…intermediate appeal Courts across the Commonwealth. In this State, Alsopp P in Karim v R , Magaming v R , Bin Lahaiyu v R and Bahu v R , Alomalu v R [2013] NSWCCA 23 at [44], considered that the Court was bound to adopt the approach in Bahar . I accordingly accept that the reasoning in Bahar is generally binding o…
Bahar v The Queen
[2011] WASCA 249 Para 31

…sion is to be approached and how it impacts on the sentencing discretion. In essence, the Crown submits that the correct approach is as per Bahar v R [2011] WASCA 249, which provides that the minimum sentence can only be imposed for offending that falls within the “least serious category”. The defence submits that…
Muldrock v The Queen
[2011] HCA 39 Para 100

…ach that risks a two stage approach to sentencing which is inconsistent with the “instinctive synthesis” approached in Muldrock v R [2011] HCA 39; 244CLR 120.…
Hili v The Queen
[2010] HCA 45 Para 114

…n-parole period. I note there is no statutory ratio for Commonwealth offences. I accept it is an error to begin from an assumed percentage ( Hili v R (2010) 242 CLR 520). I am required to take into account the offender’s subjective circumstances and any mitigating factors as acknowledged earlier, being cautious not t…
Little v R
[2010] NSWCCA 210 Para 100

…have contemplated the meaning of that phrase have focused on the objective gravity of the offence, including aggravating features ( Little v R [2010] NSWCCA 210 at [31]). It is submitted that those same principles must apply in considering “the least serious category of offence” and as such, require a focus on the…
Minehan v R
[2010] NSWCCA 140 Para 33

…The parties acknowledge that the factors relevant to an assessment of objective seriousness for offending of this type are as stated in Minehan v R [2010] NSWCCA 140 at [94], more recently revised and confirmed in R v Hutchinson [2018] NSWCCA 152, by Hulme J at [45] and as follows:…
R v De Simoni
[1981] HCA 31 Para 5

…ther for his or her own use or for sale or dissemination. In this regard care is needed to avoid any infringement of the principle in R v De Simoni (1981) 1947 CLR 383.…

Legislation cited in this decision · 3

Child Protection (Offenders Registration) Act 2000 (NSW)
1 mention (from Para 3)
Crimes Act 1914 (Cth)
1 mention (from Para 14)
Migration Act 1958 (Cth)
1 mention (from Para 84)

Medium Neutral Citation:	R v Glasheen [2021] NSWDC 544
Hearing dates:	13 July 2021
Decision date:	10 August 2021
Jurisdiction:	Criminal
Before:	Robinson DCJ
Decision:	Sentenced to a term of imprisonment of 4 years; non-parole period 2 years 8 months imprisonment. Forfeiture order for laptop used in this offence.
Catchwords:	CRIME – sentence – Commonwealth - use carriage service to access child abuse material - registerable person – plea of guilty – remorse – prospects of rehabilitation – mandatory minimum sentencing regime – statutory discounts.
Legislation Cited:	Child Protection (Offenders Registration) Act 2000 Crimes Act 1914 (Cth) Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act Criminal Code (Cth) Migration Act 1958 (Cth)
Cases Cited:	Alomalu v R [2013] NSWCCA 23 Bahar v R [2011] WASCA 249 Bahu v R [2013] NSWCCA 23 Barbaro v R (2014) 253 CLR 58 Bin Lahaiyu v R [2013] NSWCCA 23 Dui Kol v R [2015] NSWCCA 150 Hili v R (2010) 242 CLR 520 Imbornone v R [2017] NSWCCA 144 at [7] Karim v R [2013] NSWCCA 23 Little v R [2010] NSWCCA 210 at [31] Magaming v R [2013] NSWCCA 23 Minehan v R [2010] NSWCCA 140 at [94] Muldrock v R [2011] HCA 39; 244CLR 120 R v Cardwell [2021] QCA 112 at [10]-[12] R v De Simoni (1981) 1947 CLR 383 R v Delzotto [2021] NSWDC 325 R v Gent (2005) 162 A Crim R 29 at [65] R v Hutchinson [2018] NSWCCA 152 at [49] R v Pham (2015) 256 CLR 550 at [26] R v Porte [2015] NSWCCA 174 at [40] and [76]. Vincenzo JonFedele v R [2015] NSWCCA 286 Xiao v R [2018] NSWCCA 4
Category:	Sentence
Parties:	Director of Public Prosecutions (Cth) (Crown) Richard William John Glasheen (Offender)
Representation:	Counsel: Mr D Barents (Crown) Ms K Averre (Offender) Solicitors: Ms A Ranson (Crown) Ms M Connell (Offender)
File Number(s):	2020/00217800
Publication restriction:	No