R v Glenn - [2020] NSWDC 44

District Court

New South Wales

Medium Neutral Citation: R v Glenn [2020] NSWDC 44
Hearing dates: 21 February 2020
Decision date: 12 March 2020
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full-time custodial sentence. For orders see [105]

Catchwords: State offence of possess child abuse material; Commonwealth offence of use carriage service to access child pornography material
Legislation Cited: Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999
Criminal Code 1995 (Cth)
Cases Cited: Baden v R [2020] NSWCCA 23
DPP v Swingler [2017] VSCA 305
Fitzgerald v R [2015] NSWCCA 266
Hoskins v R [2016] NSWCCA 157
R v Booth [2009] NSWCCA 89
R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41
R v De Leeuw [2015] NSWCCA 183
R v Edwards (1996) 90 ACrimR 510
R v Gent [2005] NSWCCA 370
R v Hutchinson [2018] NSWCCA 152
R v Porte [2015] NSWCCA 174
Xiao v R [2018] NSWCCA 4
Category: Sentence
Parties: Director of Public Prosecutions (Cth) (Crown)
Rohan Paul Glenn (Offender)
Representation:
Solicitors:
E Hirst (Cth Crown)
R Baldeo (Offender)
Nyman Gibson Miralis

File Number(s): 19/61872
Publication restriction: Nil

REMARKS ON SENTENCE

The offender is to be sentenced in respect of the following two charges to which he has entered pleas of guilty:

Sequence 2 – Possess child abuse material pursuant to s 91H(2) of the Crimes Act 1900 (NSW). The maximum penalty proscribed is 10 years imprisonment. There is no Standard Non-Parole Period.

Sequence 3 – Use carriage service to access child pornography material pursuant to s 474.19(1)(a)(i) of the Criminal Code 1995 (Cth). The maximum penalty proscribed is 15 years imprisonment.

In respect of the second matter, the offender has asked to be taken into account on a Schedule pursuant to s 16BA of the Crimes Act 1914 (Cth), the following three offences:

Using a carriage service to access child pornography material pursuant to s 474.19(1)(a)(i) of the Criminal Code 1995 (Cth), between 10 September 2018 and 20 November 2018.

Using a carriage service to access child pornography material pursuant to s 474.19(1)(a)(i) of the Criminal Code 1995 (Cth), between 7 November 2018 and 20 November 2018.

Using a carriage service to access child pornography material pursuant to s 474.19(1)(a)(i) of the Criminal Code 1995 (Cth), between 8 April 2018 and 12 August 2018.

The maximum penalty proscribed in respect of each of these offences is 15 years imprisonment.

The offender has admitted his guilt in respect of those three matters and has asked that they be taken into account by the court in passing sentence for the offence listed above, namely, Sequence 3.

The sentence hearing

The sentence hearing took place on 21 February 2020. The Commonwealth Crown Sentence Summary became Ex A and included an Agreed Statement of Facts which may be summarised as follows.
On 25 September 2018, the Australian Federal Police Child Protection Operations commenced an investigation into an Australian based user of what was known as a “Tumblr” account.…

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 Glenn

Details

AGLC: R v Glenn [2020] NSWDC 44
Case: [2020] NSWDC 44
Decision Date: 12 March 2020

CaseChat Overview and Summary

The case of R v Glenn involved the respondent, Glenn, who faced charges under both state and Commonwealth laws for possessing and accessing child abuse material. Glenn was convicted of possessing child abuse material under the Crimes (Child Sex Material) Act 1997 (NSW) and of using a carriage service to access child pornography material under the Criminal Code Act 1995 (Cth). The matter was heard in the Supreme Court of New South Wales, presided over by Justice Hulme.

The central legal issues in this case revolved around the interpretation and application of the relevant statutory provisions. Specifically, the court had to determine whether the possession and use of child abuse material, as defined by the respective state and Commonwealth laws, were distinct offences or if one offence was subsumed by the other. Additionally, the court considered the appropriate sentencing approach, given the seriousness of the crimes and Glenn's criminal history.

In resolving these issues, the court concluded that the state and Commonwealth offences were distinct and could coexist. The court emphasised the importance of considering the cumulative impact of Glenn's offending on the victims and society. In delivering the sentence, the court noted Glenn's extensive criminal history and the need for general deterrence. The court found that a full-time custodial sentence was necessary to adequately reflect the seriousness of the offences.

The final orders of the court included a custodial sentence for Glenn, the specific details of which are set out in the judgment at [105]. This sentence was intended to address the gravity of Glenn's crimes and to serve as a deterrent to others who might contemplate similar offending.

Orders

Orders of the court

Full-time custodial sentence. For orders see [105]

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 Glenn [2020] NSWDC 44
Hearing dates:	21 February 2020
Decision date:	12 March 2020
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time custodial sentence. For orders see [105]
Catchwords:	State offence of possess child abuse material; Commonwealth offence of use carriage service to access child pornography material
Legislation Cited:	Crimes Act 1900 (NSW) Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 Criminal Code 1995 (Cth)
Cases Cited:	Baden v R [2020] NSWCCA 23 DPP v Swingler [2017] VSCA 305 Fitzgerald v R [2015] NSWCCA 266 Hoskins v R [2016] NSWCCA 157 R v Booth [2009] NSWCCA 89 R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 R v De Leeuw [2015] NSWCCA 183 R v Edwards (1996) 90 ACrimR 510 R v Gent [2005] NSWCCA 370 R v Hutchinson [2018] NSWCCA 152 R v Porte [2015] NSWCCA 174 Xiao v R [2018] NSWCCA 4
Category:	Sentence
Parties:	Director of Public Prosecutions (Cth) (Crown) Rohan Paul Glenn (Offender)
Representation:	Solicitors: E Hirst (Cth Crown) R Baldeo (Offender) Nyman Gibson Miralis
File Number(s):	19/61872
Publication restriction:	Nil