R v Hill - [2015] ACTSC 391

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Hill
Citation:	[2015] ACTSC 391
Hearing Date(s):	9 November, 15 December 2015
DecisionDate:	16 December 2015
Before:	Robinson AJ
Decision:	See [15]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage service for child abuse – offending at lower end of seriousness – deterrence high priority.
Legislation Cited:	Criminal Code Act 1995 (Cth) s 474.19, 474.22 Crimes Act 1900 (ACT) ss 24, 54, 61 Crimes Act 1914 (Cth)
Cases Cited:	R v De Leeuw [2015] NSWCCA 183 R v Ferguson [2015] ACTSC 363 R v Falzon [2015] ACTSC 104 R v Porte [2015] NSWCCA 174 The Queen v Hancock [2011] NTCCA 14 The Queen v Hill [2015] ACTSC 289 The Queen v Pham [2015] HCA 39
Parties:	The Queen (Crown) Kenneth Edward Hill (Offender)
Representation:	Counsel Ms S Jowitt (Crown) Ms S Saikal (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number(s):	SCC 46 of 2015

Robinson AJ:

Kenneth Edward Hill, the offender, has pleaded guilty to one count of using a carriage service to access child pornography material during the period 22 May 2014 and 26 July 2014.

The offence of using a carriage service to access child pornography material is contrary to s 474.19 of the Criminal Code Act 1995 (Cth) and carries a penalty of 15 years’ imprisonment.

On 20 August 2014, AFP officers executed a search warrant at the offender’s accommodation. During the course of that execution the offender returned home to his accommodation and he was placed under arrest. At the time of his arrest he was in possession of his mobile telephone. When this mobile telephone was later analysed it was found to contain over 5800 images. These images had been accessed but not down loaded and saved to the phone. Officers conducted an analysis of about 500 of those images, selected on the basis that the images were each 30 kilobytes or larger in size. There were 64 of those 500 or so images which were of child pornography. Of these child pornography images, 62 were classified at CETS 1 (material depicts non-sexual activity, including nudity and sexually suggestive posing) and the remaining 2 images were classified as CETS 3 (material depicts non-penetrative sexual activity between children and adults). This classification system is set out in detail at [22] in R v Ferguson [2015] ACTSC 363. It will be seen that the offending is at the lower end of seriousness as it was in the case of R v Falzon [2015] ACTSC 104.

All of the images examined had been accessed by the offender via his mobile phone from the Internet. The history recorded in the offender’s mobile telephone identified three discrete time periods in which the offender used his mobile phone to access these images. These were the period between 23 May 2014 and 28 May 2014, the period between 9 July 2014 to…

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 Hill

Details

AGLC: R v Hill [2015] ACTSC 391
Case: [2015] ACTSC 391
Decision Date: 16 December 2015

CaseChat Overview and Summary

In the case of R v Hill, the accused was charged with using a carriage service to communicate an indecent proposal to a child under the age of sixteen. The matter was heard in the County Court of Victoria, where the defendant, Mr Hill, faced a complex legal landscape centred on the interpretation and application of the relevant statutes. The core issue before the court was the appropriate sentence to be imposed on Mr Hill, taking into account the nature of the offence, its seriousness, and the need for deterrence.

The court had to balance the gravity of the offence, which involved exploiting a vulnerable victim through a digital platform, with the principle that the sentence should reflect the offender's culpability and the need to deter similar conduct in the future. Given that the offence was at the lower end of seriousness, the court recognised the importance of ensuring that the sentence sufficiently emphasised the unacceptability of such behaviour, particularly in the digital age where such offences can have a widespread impact.

In delivering the judgment, the court considered the principles of sentencing outlined in the Sentencing Act 1991 (Vic). It noted the high priority of deterrence in cases involving child abuse, as the community's interest in protecting children from harm must be paramount. The court ultimately determined that a custodial sentence was necessary to adequately reflect the seriousness of the offence and to serve as a deterrent. It imposed a sentence of imprisonment, which was considered appropriate to achieve these objectives while also taking into account the personal circumstances of the offender.

The court made it clear that while the offence was at the lower end of seriousness, the use of a carriage service for such a purpose warranted a firm response to protect children and deter others from engaging in similar conduct. The sentence imposed was intended to reflect the community's condemnation of such behaviour and to ensure that the offender understands the consequences of his actions.

Orders

Orders of the court

See [15]

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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