Legal Research
Cases
R v Horner

R v Horner

Case [2023] ACTSC 23 21 February 2023

Criminal Liability

Sentencing

Post-Traumatic Stress Disorder

Type to search within this case.

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Horner
Citation:	[2023] ACTSC 23
Hearing Date:	17 February 2023
DecisionDate:	21 February 2023
Before:	Baker J
Decision:	See [51] – [54]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – possession of child abuse and child exploitation material – exceptional circumstances – where offender suffered childhood of deprivation and abuse – Post-Traumatic Stress Disorder – Bugmy and Verdins considerations – strong subjective case
Legislation Cited:	Crimes Act 1914 (Cth), s 16A(2)(f), (g), (h), (2AAA), s 20(1)(b) Criminal Code Act 1995 (Cth), s 7.3(1) Crimes (Child Sex Offenders) Act 2005 (ACT)
Cases Cited:	Bugmy v The Queen [2013] HCA 37; 249 CLR 572 Mertell v The King [2022] ACTCA 69 at [29] Minehan v R [2010] NSWCCA 140 R v Hutchinson [2018] NSWCCA 152 R v Porte [2015] NSWCCA 174 at [66] R v Verdins [2007] VSCA 102; 16 VR 269
Texts Cited:	The Bugmy Bar Book Project, Childhood Sexual Abuse
Parties:	Commonwealth Director of Public Prosecutions ( Crown) Mr David Horner ( Offender)
Representation:	Counsel D Morrison ( Crown) J Sabharwal ( Offender)
Solicitors Commonwealth Director of Public Prosecutions ( Crown) Armstrong Legal ( Offender)
File Number:	SCC 233 of 2022

BAKER J:

Introduction

The offender has entered pleas of guilty to the following offences:

Count 1 (CC 2022/3418): On 10 November 2021, used a carriage service to possess child abuse material, contrary to s 474.22A(1) of the Criminal Code (Cth).
Count 2 (CC 2022/8812): Between about 1 August 2018 and 29 April 2019, used a carriage service to access child exploitation material, contrary to s 474.19(1) of the Criminal Code (Cth).

Both offences carry a maximum penalty of imprisonment for 15 years.

Background

The offences

On 10 November 2021 the Australian Federal Police (“AFP”) executed a search warrant at the offender’s residence. The offender was present at the time, together with his wife and three children.

Police seized a Dell computer belonging to the offender. Later examination of the computer identified three videos depicting child abuse material (Count 1). The videos depict two child victims aged 3 – 6 years engaged in various penetrative and non-penetrative sexual acts, including cunnilingus and posing with exposed genitals and buttocks. Two of those videos had been accessed on 1 August 2018, and the third was accessed on 29 April 2019 (Count 2). Police also seized the offender’s mobile phone. However, examination of the phone did not reveal any images or videos of child abuse material.

On examination of the computer, police also located a document entitled “complaint”. The document contained 64 reference numbers. 50 of those reference numbers matched the reference numbers of complaints made to the eSafety Commissioner under the Online Content Scheme. The remaining 14 reference numbers did not match any records held by the eSafety Commissioner. The 50 reports were made anonymously between 26 March 2013 and 19 June 2018, and included 247…

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 Horner

Details

AGLC: R v Horner [2023] ACTSC 23
Case: [2023] ACTSC 23
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the offender, Mr David Horner, pleaded guilty to two counts of possessing and accessing child abuse material. The offences were committed on 10 November 2021 when the Australian Federal Police executed a search warrant at the offender's residence and found three videos of child abuse material on his computer. The offender also possessed a document that contained 64 reference numbers relating to child abuse material complaints made to the eSafety Commissioner. The offender's subjective case included a history of childhood trauma and abuse, which resulted in Post-Traumatic Stress Disorder, Major Depressive Disorder, and Generalised Anxiety Disorder. The offender's moral culpability was reduced due to his disadvantaged background and mental illnesses. The court considered the objective seriousness of the offences, the offender's plea of guilty, his remorse, and prospects of rehabilitation. The court determined that there were exceptional circumstances that warranted a Recognisance Release Order instead of immediate imprisonment.

The court found that the exceptional circumstances in this case included the limited quantity of material possessed, the offender's background of childhood abuse, his mental illnesses, genuine remorse, strong prospects of rehabilitation, and the need for continued engagement in rehabilitation. The court accepted the Crown's submission that the objective seriousness of the offences was towards the lower end of the range but not at the lowest end. The court also considered the offender's background of childhood abuse and mental illnesses, which had an impact on his moral culpability. The offender pleaded guilty at the first reasonable opportunity, resulting in a 25% discount on his sentence for each charge. The court took into account the offender's remorse, cooperation with authorities, and testimonials provided on his behalf.

Considering the objective seriousness, moral culpability, plea of guilty, remorse, rehabilitation, and comparative sentences, the court determined that a sentence of imprisonment was appropriate. However, due to the exceptional circumstances, the court decided to release the offender on a Recognisance Release Order without requiring him to serve an actual period of imprisonment. The sentence for Count 1 (possession of child exploitation material) was 20 months imprisonment, discounted to 15 months due to the early guilty plea. The sentence for Count 2 (accessing child exploitation material) was 16 months imprisonment, discounted to 12 months due to the early guilty plea. The sentences were to be largely concurrent. The offender was required to comply with various conditions, including good behaviour, supervision by the Commissioner of ACT Corrective Services, participation in treatment or rehabilitation programs, and reporting obligations under the Crimes (Child Sex Offenders) Act 2005 (ACT). The court also ordered the forfeiture of the Dell computer used in the commission of the offences.

Orders