SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Johnston |
Citation: | [2020] ACTSC 46 |
Hearing Date: | 13 February 2020 |
DecisionDate: | 2 March 2020 |
Before: | Mossop J |
Decision: | See [53] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – using a carriage service to transmit an indecent communication to a person under 16 years – possessing child abuse material using a carriage service – when the sentencing judge should view a sample of the material – lower objective seriousness – no criminal history – sentence of imprisonment |
Legislation Cited: | Crimes Act 1914 (Cth), ss 3, 3LA, 16E, 17A, 19AC, 20, 23ZA, 23ZD Crimes (Sentencing) Act 2005 (ACT), s 63 Criminal Code 1995 (Cth), ss 474.22- 474.24C, 474.25A - 474.29, 474.1 |
Cases Cited: | Adamson v The Queen [2015] VSCA 194; 47 VR 268 Director of Public Prosecutions (Cth) v Garside [2016] VSCA 74; 50 VR 800 |
Parties: | The Queen (Crown) Glenn Johnston (Offender) |
Representation: | Counsel M Keks (Crown) H Hayunga (Offender) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 319 of 2019 |
MOSSOP J:
Introduction
Glenn Matthew Johnston has pleaded guilty to three charges:
(a) Using a carriage service to transmit an indecent communication to a person under 16 years of age contrary to s 474.27A(1) of the Criminal Code 1995 (Cth) (CC2019/11277). The maximum penalty for this offence is seven years’ imprisonment.
(b) Using a carriage service to transmit an indecent communication to a person believed to be under 16 years of age contrary to s 474.27A(1) of the Criminal Code (CC2019/12637). The maximum penalty for this offence is seven years’ imprisonment.
(c) Possessing child abuse material obtained using a carriage service contrary to s 474.22A(1) of the Criminal Code (CC2019/12638). Child abuse material is defined in s 473.1 of the Criminal Code. The maximum penalty is 15 years’ imprisonment.
Facts
In February 2019 the offender used the direct messaging facility of the social media application ‘Instagram’ to communicate explicit suggestions to a 10-year-old child located in North Carolina, USA. The child’s father became aware of this and reported the matter to the Australian Federal Police. The child’s father then told the offender via the child’s Instagram account that a police report had been made. The offender apologised and stated that his housemate had sent the messages. These are uncharged acts, but they provide context to the subsequent offending.
On 28 June 2019 the offender…
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- R v Johnston [2020] ACTSC 46
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- [2020] ACTSC 46
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CaseChat Overview and Summary
The court examined whether the sentencing judge should have viewed the material directly and considered it as part of the sentencing process. It was established that the objective seriousness of the offence plays a pivotal role in sentencing, especially when the material is of a lower level of severity. The court found that the sentencing judge had not viewed the material directly but relied on the prosecutor's description. This raised questions about the accuracy and sufficiency of the prosecutor's account in assessing the gravity of the offence. Furthermore, the court assessed the mitigating factors, such as the respondent's lack of criminal history and the apparent lower objective seriousness of the material, in determining the appropriate sentence.
The court concluded that the sentencing judge erred by not viewing the material directly and by failing to adequately assess the objective seriousness of the offence. The court emphasised the importance of viewing the material in certain circumstances to ensure an accurate understanding of the offence's gravity. Given the lower objective seriousness of the material and the respondent's lack of criminal history, the court found that the original sentence was excessive. The sentence was reviewed, and the court determined that a lesser sentence of imprisonment was warranted.
The court ordered that the original sentence of imprisonment be quashed and replaced with a lesser sentence, taking into account the factors of lower objective seriousness and the absence of criminal history. The specific details of the new sentence were outlined in the court's judgment.
Orders
Orders of the court
See [53]
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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