R v Hitchen - [2009] NSWDC 431

Set aside by Appeal:

District Court

CITATION: R v Hitchen [2009] NSWDC 431

HEARING DATE(S): 2 and 17 February, 2009

JUDGMENT DATE:
8 April 2009

JURISDICTION: Criminal

JUDGMENT OF: Garling DCJ

DECISION: A total term of imprisonment of 24 years with a non-parole period of 18 years.

CATCHWORDS: CRIMINAL - sentence - plea - use carriage service to transmit child pornography - mid-range category of offence - possess child pornography - persistent sexual abuse of child - use child under 14 years for pornographic purposes - use carriage service to access child pornography - worst category of offences - s.474.19(1)(a)(iii) Criminal Code Act 1995, ss 91H(3), 66EA, 91G(1)(a) Crimes Act 1900, s.474.19(1)(a)(i) Criminal Code Act 1995 - accumulation of sentences

LEGISLATION CITED: Crimes Act 1900
Criminal Code Act 1995 (Commonwealth)
Crimes Act 1914 (Cth)

CASES CITED: R v Fitzgerald (2004) NSWCCA 5
RJA [2008] NSWCCA 137
MLP [2006] NSWCCA 271
Cahyadi [2007] NSWCCA 1

PARTIES: Regina
Glenn Hitchen

FILE NUMBER(S): 08/18854; 08/18509; 08/18510

COUNSEL: Mr. J. Barnett (Offender)

SOLICITORS: Mr. G. Coles (ODPP)
Mr. A. McMaster (ODPP)
Mr. M. Giles (Offender)

HIS HONOUR: The prisoner has pleaded guilty to the following charges:-

1. Charge 1 – On 25 November, 2006 at Port Macquarie in the State of New South Wales, used a carriage service to transmit child pornography material. That carries a maximum sentence of 10 years’ imprisonment.

2. Charge 2 – On 25 November, 2006 at Port Macquarie in the State of New South Wales, used a carriage service to access child pornography material. That carries a maximum sentence of 10 years’ imprisonment.

3. Charge 3 – On 5 December, 2007 at Port Macquarie in the State of New South Wales, had child pornography in his possession. That carries a maximum sentence of 5 years’ imprisonment.

4. Charge 4 – Between 18 November, 2004 and 20 October, 2007 at Port Macquarie in the State of New South Wales and at Hervey Bay in Queensland, on twelve separate occasions occurring on separate days, did have sexual intercourse with K, a child then under the age of 10 years, and on a further thirty six separate occasions occurring on separate days did commit an act of indecency with K, a child then under the age of 16 years. That carries a maximum sentence of 25 years’ imprisonment.

5. Charge 5 – Between 25 February, 2005 and 15 May, 2005 at Port Macquarie in the State of New South Wales, used K, a child under 14 years, namely 7 years, for pornographic purposes. That carries a maximum sentence of 14 years’ imprisonment. I also take into account on this charge four other charges on a Form 1. They are four charges of using a child under 14 years for pornographic purposes.

6. Charge 6 – Between 26 March, 2005 and 26 April, 2005 at Port Macquarie in the State of New South Wales, used a carriage service to transmit child pornography material. That carries a maximum sentence of 10 years’ imprisonment.…

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 Hitchen

Details

AGLC: R v Hitchen [2009] NSWDC 431
Case: [2009] NSWDC 431
Decision Date: 8 April 2009

CaseChat Overview and Summary

The case of R v Hitchen was heard in an Australian court where the defendant was charged with multiple serious offences related to child pornography. Hitchen was accused of using a carriage service to transmit child pornography, possessing child pornography, and engaging in the persistent sexual abuse of a child. Additionally, he was charged with using a child under the age of 14 for pornographic purposes and accessing child pornography through a carriage service. These charges fell into the worst category of offences under the Criminal Code Act 1995 and related provisions of the Crimes Act 1900.

The legal issues the court needed to decide included the appropriate sentence for each offence, the cumulative effect of these offences, and the proper application of statutory provisions concerning the accumulation of sentences. The court had to consider the severity and nature of the crimes, the age of the victim, and the aggravating factors such as the persistent nature of the abuse and the use of digital means to disseminate the material. The court also had to balance these considerations with statutory guidelines on sentencing and the principles of cumulative sentencing.

In its reasoning, the court found that the crimes committed by Hitchen were of an extremely serious nature, involving the exploitation of a child through pornography. The court emphasised the heinous nature of the offences, particularly due to the young age of the victim and the use of digital technology to distribute the material. Considering the statutory framework, the court concluded that the mid-range category was appropriate for the transmission of child pornography, while the other offences warranted the highest range. The court also noted the need for a significant non-parole period to ensure public protection and deterrence. After careful consideration of all relevant factors, the court imposed a total term of imprisonment of 24 years with a non-parole period of 18 years.

Orders

Orders of the court

A total term of imprisonment of 24 years with a non-parole period of 18 years.

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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CITATION:	R v Hitchen [2009] NSWDC 431
HEARING DATE(S):	2 and 17 February, 2009
JUDGMENT DATE:	8 April 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Garling DCJ
DECISION:	A total term of imprisonment of 24 years with a non-parole period of 18 years.
CATCHWORDS:	CRIMINAL - sentence - plea - use carriage service to transmit child pornography - mid-range category of offence - possess child pornography - persistent sexual abuse of child - use child under 14 years for pornographic purposes - use carriage service to access child pornography - worst category of offences - s.474.19(1)(a)(iii) Criminal Code Act 1995, ss 91H(3), 66EA, 91G(1)(a) Crimes Act 1900, s.474.19(1)(a)(i) Criminal Code Act 1995 - accumulation of sentences
LEGISLATION CITED:	Crimes Act 1900 Criminal Code Act 1995 (Commonwealth) Crimes Act 1914 (Cth)
CASES CITED:	R v Fitzgerald (2004) NSWCCA 5 RJA [2008] NSWCCA 137 MLP [2006] NSWCCA 271 Cahyadi [2007] NSWCCA 1
PARTIES:	Regina Glenn Hitchen
FILE NUMBER(S):	08/18854; 08/18509; 08/18510
COUNSEL:	Mr. J. Barnett (Offender)
SOLICITORS:	Mr. G. Coles (ODPP) Mr. A. McMaster (ODPP) Mr. M. Giles (Offender)