R v Hunter - [2022] NSWDC 631

District Court

New South Wales

Medium Neutral Citation: R v Hunter [2022] NSWDC 631
Hearing dates: Thursday 3 March 2022; Friday 1 July 2022
Date of orders: Friday 9 September 2022
Decision date: 09 September 2022
Jurisdiction: Criminal
Before: Tupman DCJ
Decision:
(1) For all offences, the offender is convicted.
(2) The offender is sentenced to an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) of 8 years and 6 months. I specify a single non-parole period of 5 years and 6 months.
(3) Form 1 offences taken into account.
(4) Orders made in terms of the forfeiture order pursuant to s 23Z(D) of the Crimes Act 1914 (Cth).

Catchwords:
CRIME — Child sex offences — Child abuse material — Using carriage service to access, possess and disseminate child abuse material — 16 substantive offences and 9 Form 1 offences — Maximum penalty of 30 years imprisonment with mandatory minimum of 7 years — Charges cover 23 separate occasions of offending conduct — Offender pleaded guilty in Local Court — Videos and images of children between the ages of 1 and 17 falling in Category 1 and 2 — Offender used instant message application called Kik to communicate with other people who he would obtain child abuse material from and with whom he would share abuse material with — Offender cooperated with police and offered information regarding his offending conduct — Offender has no prior criminal convictions — Offender is a low risk of sexual-contact offending against children but a low to moderate risk for committing further child exploitation material offences.

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW): s 53A.
Crimes Act 1914 (Cth): ss 16A, 16A(2), 16AAA, 16BA, 16AAC, 23Z(D).
Criminal Code Act 1995 (Cth): 474.22(1), 474.22(1)(a)(iii), 474.24A, 474.24A(1).

Cases Cited:
Bahar v The Queen (2011) 45 WAR 110; [2011] WASCA 249.
Minehan v R [2010] NSWCCA 140.
R v Delzotto [2022] NSWCCA 117.
R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566.

Category: Sentence
Parties: Regina (The Queen)
Daniel Hunter (The Offender)
Representation:
Counsel:
Ms. G. Mahony (The Crown)
Solicitors:
Mr. J. Fennel (The Crown)
Mr. V. Vijay (The Offender)

File Number(s): 2021/00026674

Judgment

HER HONOUR: The offender Daniel Joseph Hunter is before the Court for sentence on 16 substantive offences, contrary to various provisions of the Criminal Code Act 1995 (Cth) (the “Criminal Code”) with nine offences to be take into account as additional offences pursuant to s 16BA of the Crimes Act 1914 (Cth).
The offender pleaded guilty to all offences in the Local Court and was committed for sentence to this Court. The offences appear to cover 23 separate occasions between 20 and 28 January 2021 on which various offences were committed and the structure of the charges, in my view, was unnecessarily complicated.
Despite what was obviously then a complicated and lengthy sentence, the parties on 10 December 2021 gave the District Court an estimate for this sentence of…

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 Hunter

Details

AGLC: R v Hunter [2022] NSWDC 631
Case: [2022] NSWDC 631
Decision Date: 09 September 2022

CaseChat Overview and Summary

The case of R v Hunter involved the offender who was charged with multiple offences related to the possession, access, and dissemination of child abuse material. The offender used an instant messaging application called Kik to communicate with others from whom he obtained and shared the material. The offender pleaded guilty to 16 substantive offences and 9 Form 1 offences in the Local Court. The charges related to 23 separate instances of offending, involving videos and images of children aged between 1 and 17, falling into Category 1 and 2. The offender cooperated with police, offering information about his activities and had no prior criminal convictions. The offender was assessed as a low risk of sexual-contact offending against children but a low to moderate risk for committing further child exploitation material offences.

The court had to determine the appropriate sentence for the offender, taking into consideration the nature and extent of the offending, the offender's cooperation with authorities, and the risk of reoffending. The maximum penalty for each substantive offence was 30 years imprisonment with a mandatory minimum of 7 years. The court considered the need for denunciation, general deterrence, and specific deterrence in the sentencing process. It was also important to consider the offender's age, background, and the fact that he had no prior criminal history.

In reaching its decision, the court took into account the totality of the offending, the offender's cooperation with authorities, and the risk of reoffending. The court found that the appropriate sentence was an aggregate sentence of 8 years and 6 months, with a non-parole period of 5 years and 6 months. The court also made orders in terms of the forfeiture order pursuant to s 23Z(D) of the Crimes Act 1914 (Cth). The Form 1 offences were taken into account in the sentencing process.

The court's final orders were that the offender was convicted of all offences, sentenced to an aggregate sentence of 8 years and 6 months with a non-parole period of 5 years and 6 months, and that Form 1 offences were taken into account. The court also made orders in terms of the forfeiture order pursuant to s 23Z(D) of the Crimes Act 1914 (Cth). The court considered the need for denunciation, general deterrence, and specific deterrence in its sentencing decision, as well as the offender's age, background, and risk of reoffending.

Orders

Orders of the court

(1) For all offences, the offender is convicted.

(2) The offender is sentenced to an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) of 8 years and 6 months. I specify a single non-parole period of 5 years and 6 months.

(3) Form 1 offences taken into account.

(4) Orders made in terms of the forfeiture order pursuant to s 23Z(D) of the Crimes Act 1914 (Cth).

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 Hunter [2022] NSWDC 631
Hearing dates:	Thursday 3 March 2022; Friday 1 July 2022
Date of orders:	Friday 9 September 2022
Decision date:	09 September 2022
Jurisdiction:	Criminal
Before:	Tupman DCJ
Decision:	(1) For all offences, the offender is convicted. (2) The offender is sentenced to an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) of 8 years and 6 months. I specify a single non-parole period of 5 years and 6 months. (3) Form 1 offences taken into account. (4) Orders made in terms of the forfeiture order pursuant to s 23Z(D) of the Crimes Act 1914 (Cth).
Catchwords:	CRIME — Child sex offences — Child abuse material — Using carriage service to access, possess and disseminate child abuse material — 16 substantive offences and 9 Form 1 offences — Maximum penalty of 30 years imprisonment with mandatory minimum of 7 years — Charges cover 23 separate occasions of offending conduct — Offender pleaded guilty in Local Court — Videos and images of children between the ages of 1 and 17 falling in Category 1 and 2 — Offender used instant message application called Kik to communicate with other people who he would obtain child abuse material from and with whom he would share abuse material with — Offender cooperated with police and offered information regarding his offending conduct — Offender has no prior criminal convictions — Offender is a low risk of sexual-contact offending against children but a low to moderate risk for committing further child exploitation material offences.
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW): s 53A. Crimes Act 1914 (Cth): ss 16A, 16A(2), 16AAA, 16BA, 16AAC, 23Z(D). Criminal Code Act 1995 (Cth): 474.22(1), 474.22(1)(a)(iii), 474.24A, 474.24A(1).
Cases Cited:	Bahar v The Queen (2011) 45 WAR 110; [2011] WASCA 249. Minehan v R [2010] NSWCCA 140. R v Delzotto [2022] NSWCCA 117. R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566.
Category:	Sentence
Parties:	Regina (The Queen) Daniel Hunter (The Offender)
Representation:	Counsel: Ms. G. Mahony (The Crown) Solicitors: Mr. J. Fennel (The Crown) Mr. V. Vijay (The Offender)
File Number(s):	2021/00026674