R v Holland - [2024] NSWDC 259

District Court

New South Wales

Medium Neutral Citation: R v Holland [2024] NSWDC 259
Hearing dates: 30 January and 3 May 2024
Decision date: 15 July 2024
Jurisdiction: Criminal
Before: Colefax SC DCJ
Decision:
Imprisonment for 3 years to be suspended after 6 months and then to be released to a recognizance release order for 2 years 6 months.

Catchwords:
CRIME - SENTENCE - accessing child abuse material using a carriage service - possessing child abuse material having used a carriage service to obtain or access that material - "exceptional circumstances" not established.

Legislation Cited:
Criminal Code (Cth), ss. 474.22(1) and 474.22A.

Cases Cited:
R v Kaplantzi [2023] NSWDC 42; Bugmy v The Queen [2013] 249 CLR 571; DPP (Cth) v De La Rosa [2010] NSWCCA 194; R v Bredal [2024] NSWCCA 75

Category: Sentence
Parties:
Rex (Crown)
Michael John Holland (Offender)
Representation:
Mr Clifford-O'Sullivan - (Cth Crown Prosecutor)

Mr Renard – (Counsel for Offender)

File Number(s): 2022/00377376
Publication restriction: Nil

Judgment

Michael John Holland, you appear for sentence today in relation to two offences.
First, the offence of accessing child abuse material using a carriage service. This offence was committed between about 13 August 2020 and 12 December 2022. This is sequence 2.
Sequence 2 involves a contravention of s474.22(1) of the Criminal Code (Cth). The maximum penalty for that offence is 15 years imprisonment.
Secondly, the offence of possessing or controlling child abuse material, in the form of data held in a computer, and having used a carriage service to obtain or access that material. This offence was committed on or about 14 December 2022. This is sequence 1.
Sequence 1 involves a contravention of s474.22A of the Criminal Code (Cth).
The facts surrounding sequences 1 and 2 are contained in an agreed statement of facts. Slightly recast by me as to style, but not substance, they are as follows.
At the time of the offending, you were aged between 56 and 58 years; and living in Sydney.
On 11 November 2022, New South Wales Police received a report from the Australian Federal Police concerning the downloading of child abuse material to a unique IP address. That IP address was yours, and you had subscribed to it since 4 November 2020.
On 14 December 2022, a search warrant was executed at your residential premises. You assisted the police in the search of those premises, including providing them with your laptop.
After the execution of the search warrant, you were taken to a police station where you participated in an electronically recorded interview.
Your laptop was the subject of forensic analysis on 2 February 2023. That analysis revealed the presence of 524 images and video files which satisfied the definition of Category 1 child abuse material according to the Australian Child Abuse Categorisation Schema.
Category 1 material is defined as “Media depicting real pubescent child / very first signs of puberty and the child is involved in a sex act, witnessing a sex act…

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 Holland

Details

AGLC: R v Holland [2024] NSWDC 259
Case: [2024] NSWDC 259
Decision Date: 15 July 2024

CaseChat Overview and Summary

In the case before the court, the appellant, Mr Holland, faced charges related to accessing and possessing child abuse material obtained via a carriage service. The matter was heard in the Supreme Court of Victoria, where the sentencing phase followed a conviction. The central legal issues revolved around the appropriate sentence for the crimes committed, with a particular focus on whether the circumstances of the case could be classified as "exceptional" under the relevant statutory provisions.

The court examined the principles guiding sentencing for offences involving child abuse material. It considered the need to deter such conduct, the appellant's culpability, and the impact of his actions on the community. Additionally, the court assessed whether the circumstances of the case could be deemed exceptional, which might warrant a more lenient sentence. Ultimately, the court found that the appellant's actions, while serious, did not meet the threshold for exceptional circumstances. The court emphasised the gravity of the offences and the need to protect children from such exploitation.

In delivering the judgment, the court acknowledged the appellant's otherwise good character and the mitigating factors presented. However, it concluded that these factors did not sufficiently justify a departure from the general sentencing principles applicable to such offences. The court imposed a sentence of imprisonment for three years, to be suspended after six months, followed by a recognizance release order for a total period of two years and six months. This decision reflects a balanced approach, considering both the need for punishment and the potential for rehabilitation.

Orders

Orders of the court

Imprisonment for 3 years to be suspended after 6 months and then to be released to a recognizance release order for 2 years 6 months.

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 Holland [2024] NSWDC 259
Hearing dates:	30 January and 3 May 2024
Decision date:	15 July 2024
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Imprisonment for 3 years to be suspended after 6 months and then to be released to a recognizance release order for 2 years 6 months.
Catchwords:	CRIME - SENTENCE - accessing child abuse material using a carriage service - possessing child abuse material having used a carriage service to obtain or access that material - "exceptional circumstances" not established.
Legislation Cited:	Criminal Code (Cth), ss. 474.22(1) and 474.22A.
Cases Cited:	R v Kaplantzi [2023] NSWDC 42; Bugmy v The Queen [2013] 249 CLR 571; DPP (Cth) v De La Rosa [2010] NSWCCA 194; R v Bredal [2024] NSWCCA 75
Category:	Sentence
Parties:	Rex (Crown) Michael John Holland (Offender)
Representation:	Mr Clifford-O'Sullivan - (Cth Crown Prosecutor) Mr Renard – (Counsel for Offender)
File Number(s):	2022/00377376
Publication restriction:	Nil