R v John Freestone - [2010] ACTSC 87

R v JOHN FREESTONE
[2010] ACTSC 87 (20 August 2010)

CRIMINAL LAW – child pornography offences – using a carriage service to access child pornography – section 474.19, Criminal Code Act 1995 (Cth).

CRIMINAL LAW – child pornography offences – possession of child pornography – section 65, Crimes Act 1900 (ACT).

SENTENCING - material provided from different reports on the accused – issue as to whether accused expressed remorse for his actions – turns on its own facts.

SENTENCING - psychological report on the accused – prosecution critical of psychological report due to the lack of psychological testing, based on Psychologist opinion, self-reporting from accused and lack of corroboration.

SENTENCING – consideration of mental health of the accused at time of offence and present mental health of the accused – turns on its own facts.

Criminal Code Act 1995 (Cth) s 474.19(1)
Crimes Act 1900 (ACT) s 65
Evidence Act 1995 (Cth) s 4(2)
Crimes Act 1914 (Cth)

R v Haynes (ACTSC, Refshauge J, SCC 448 of 2009, 18 February 2009, unreported)
R v Oliver & Ors [2003] 1 Cr App R 28
R v Qutami (2001) 127 A Crim R 369
R v Niketic [2002] NSWCCA 425
R v Ashman [2010] ACTSC 45
Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705
Welsh (1996) 90 A Crim R 364
R v McClelland [2010] ACTSC 40
R v Liddington (1997) 18 WAR 394
R v Gent (2005) 162 A Crim R 29
Cameron v The Queen, (2002) 209 CLR 339
R v Fowler [2007] ACTCA 4

EX TEMPORE JUDGMENT

No. SCC 147 of 2010

Judge: Refshauge J
Supreme Court of the ACT

Date: 20 August 2010

IN THE SUPREME COURT OF THE )
) No. SCC 147 of 2010
AUSTRALIAN CAPITAL TERRITORY )

R

v

JOHN FREESTONE

ORDER

Judge:  Refshauge J
Date:  20 August 2010
Place:  Canberra

THE COURT ORDERS THAT:

Mr Freestone is convicted of the offence of using a carriage service to access child pornography material.

On that charge Mr Freestone is sentenced to 14 months imprisonment to commence today.

On the charge of using a carriage service to access child pornography material, Mr Freestone is to be released on 13 December 2010 upon giving security in the sum of $500 and upon conditions that he be:

(a) of good behaviour for a period of two years; and

(b) subject to the supervision of an officer of ACT Corrective Services appointed by the Chief Executive or her delegate and obey all reasonable directions of the officer appointed to supervise him, particularly in respect to mental health treatment and counselling.

Mr Freestone is convicted of intentionally possessing child pornography.

On that charge Mr Freestone is sentenced to eight months imprisonment to commence today.

I direct that the sentence be concurrent with the sentence for intentionally using a carriage service to access child pornography.

The sentence for the charge of intentionally possessing child pornography is to be suspended from 13 December 2010.

Mr Freestone is required to sign an…

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 John Freestone

Details

AGLC: R v John Freestone [2010] ACTSC 87
Case: [2010] ACTSC 87
Decision Date: 20 August 2010

CaseChat Overview and Summary

In the case of R v John Freestone, the defendant was convicted of two offences under the Criminal Code Act 1995 (Cth) and the Crimes Act 1900 (ACT). Freestone was found guilty of using a carriage service to access child pornography material and of intentionally possessing child pornography. The case was heard in the Supreme Court of the Australian Capital Territory.

The primary legal issues addressed by the court involved the assessment of Freestone's culpability, the necessity for sentencing that reflected his mental health status, and the appropriate form of punishment that would serve both as a deterrent and as a means of rehabilitation. The court needed to evaluate the psychological report submitted on Freestone's behalf and determine whether it adequately demonstrated his remorse and mental health condition at the time of the offence.

The court, after considering the psychological report, which was based on the opinion of a psychologist, self-reporting from Freestone, and the lack of corroborative psychological testing, found that Freestone had not demonstrated sufficient remorse. The court also noted that Freestone's present mental health status did not mitigate his culpability to a significant extent. The court ultimately decided that Freestone should be sentenced to imprisonment, with a significant portion to be served through periodic detention, in addition to other conditions aimed at his rehabilitation and supervision. The court also ordered the forfeiture of certain items used in the commission of the offence.

The final orders included convictions for both charges, a sentence of 14 months imprisonment for the first offence and eight months for the second, to be served concurrently. The sentences were to commence immediately, with certain conditions such as probation and community service to follow upon the completion of the imprisonment. Additionally, Freestone was required to comply with specific supervision and treatment directives, and he was designated as a registrable offender under the Crimes (Child Sex Offenders) Act 2005 (ACT) for 15 years.

Orders

Orders of the court

1. Mr Freestone is convicted of the offence of using a carriage service to access child pornography material.

2. On that charge Mr Freestone is sentenced to 14 months imprisonment to commence today.

3. On the charge of using a carriage service to access child pornography material, Mr Freestone is to be released on 13 December 2010 upon giving security in the sum of $500 and upon conditions that he be:

(a) of good behaviour for a period of two years; and

(b) subject to the supervision of an officer of ACT Corrective Services appointed by the Chief Executive or her delegate and obey all reasonable directions of the officer appointed to supervise him, particularly in respect to mental health treatment and counselling.

4. Mr Freestone is convicted of intentionally possessing child pornography.

5. On that charge Mr Freestone is sentenced to eight months imprisonment to commence today.

6. I direct that the sentence be concurrent with the sentence for intentionally using a carriage service to access child pornography.

7. The sentence for the charge of intentionally possessing child pornography is to be suspended from 13 December 2010.

8. Mr Freestone is required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentencing) Act 2005 (ACT) for a period of two years, from 13 December 2010 and include conditions that:

(a) for those two years, he be on probation subject to the supervision of an officer of ACT Corrective Services appointed by the Chief Executive or her delegate and obey all reasonable directions of the officer appointed to supervise him, particularly in respect to mental health treatment or counselling; and

(b) he perform 80 hours of community service work within 12 months of that date.

9. I direct that four months of each sentence is to be served by periodic detention from today and end on 12 December 2010. The day of the first period of periodic detention is to start on 20 August 2010.

10. I recommend, as a condition of that periodic detention, that he be subject to supervision of an officer of ACT Corrective Services, delegated by the Chief Executive or her delegate to supervise him and that he obey all reasonable directions of that officer, particularly in respect of mental health treatment and counselling.

11. I direct that he report forthwith to ACT Corrective Services, Eclipse House, London Circuit, Canberra City to arrange that supervision.

12. I am satisfied that the black computer tower with LG DVD drive and Thermaltake (Item No VSJF/02, recorded in property seizure record A161268) and Western Digital Hard Drive 40 gigabyte serial No WMA6R3122611, (Item No VSJF/08 recorded on property seizure record A161269) were used in the commission of the first offence and that they have not already become property of the Commonwealth, I order that these items be forfeited to the Commonwealth.

13. Mr Freestone is a registrable offender under the Crimes (Child Sex Offenders) Act 2005 (ACT), with a reporting period for 15 years from today.

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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