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R v Jongsma

R v Jongsma

Case [2004] VSCA 218 7 December 2004

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 268 of 2003

THE QUEEN
	v.
RICHARD JONGSMA

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JUDGES:	BATT and EAMES, JJ.A. and GILLARD, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 October 2004
DATE OF JUDGMENT:	7 December 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 218	2nd Revision: 7 February 2005

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CRIMINAL LAW – Sentencing – Indecent acts with or in presence of child under 16 (12 counts), causing child to take part in prostitution (2), producing child pornography (2) and possession of child pornography, being very many images from Internet stored electronically as well as that produced by offender – Guilty pleas – No relevant prior convictions – Victims not unwillingly participated for money or cigarettes – Three years’ imprisonment for possession, maximum being five – Total effective sentence of 8 years’ imprisonment and non-parole period of 6 – Whether individual sentences disproportionate or inconsistent – Whether cumulation erroneous – Only direction for total cumulation of one sentence erroneous and only possession sentence manifestly excessive – Re-sentenced to 7 years’ imprisonment and 5 years 3 months non-parole period.

CRIMINAL LAW – Appeals – Procedure – Obligation on Crown to keep and, on notice from Registrar, produce trial exhibits – R.S.C. Chap.VI, R.2.18(1) and (2).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. C.G. Hillman, SC	Ms K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr. S. Gillespie-Jones	Paul Vale Criminal Law

BATT, J.A.:

On 18 September 2003 the appellant, Richard Jongsma, who was born on 9 May 1962 and at the dates of the offences in question in this appeal was aged from 39 to 40 years, pleaded guilty on arraignment in the County Court at Melbourne to seven counts (counts 1, 2, 3, 8, 10, 11 and 14) of committing an indecent act with a child under 16 years contrary to s.47(1) of the Crimes Act 1958; five counts (counts 4, 5, 9, 13 and 16) of committing an indecent act in the presence of a child under 16 years contrary to the same sub-section; two counts (counts 6 and 7) of causing a child[1] to take part in an act of prostitution, contrary to s.5(1) of the Prostitution Control Act 1994; two counts (counts 12 and 15) of producing child pornography[2], contrary to s.68(1) of the Crimes Act 1958; and one count (count 17) of knowingly possessing child pornography, contrary to s.70(1) of that Act. The maximum custodial penalty for all the offences other than possessing child pornography was imprisonment for ten years. That of possessing child pornography, was imprisonment for five years. The appellant admitted four previous findings of guilt for offences of dishonesty from a Magistrates’ Court appearance on 25 November 1982 and 33 previous convictions for theft from a Magistrates’ Court appearance on 2 October 1998. They may be treated as largely immaterial for present purposes.
[1]For the purpose of the Prostitution Control Act “child” meant, by virtue of s.3(1) of that Act, a person under the age of 18 years.
[2]By…

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 Jongsma

Details

AGLC: R v Jongsma [2004] VSCA 218
Case: [2004] VSCA 218
Decision Date: 7 December 2004

CaseChat Overview and Summary

In the case of R v Jongsma, the defendant was found guilty of multiple serious offences involving children, including indecent acts with or in the presence of a child under 16, causing a child to take part in prostitution, producing child pornography, and possession of child pornography. The Supreme Court of the relevant jurisdiction was tasked with determining an appropriate sentence for the defendant, who had no relevant prior convictions and whose victims did not participate unwillingly. The Crown argued for the maximum penalty for possession of child pornography, while the defence proposed a significantly lower sentence, arguing that the individual sentences were disproportionate and inconsistent.

The court was required to decide whether the individual sentences were erroneous in their cumulation, particularly whether the possession sentence was manifestly excessive. The court noted that while the total effective sentence and non-parole period were appropriate, the direction for the cumulation of one sentence was erroneous. The court also determined that only the possession sentence was manifestly excessive. The Crown's failure to keep and produce trial exhibits, as required by R.S.C. Chap.VI, R.2.18(1) and (2), was also addressed, with the court considering its impact on the case.

After reviewing the evidence and arguments, the court re-sentenced the defendant to a total of 7 years' imprisonment with a non-parole period of 5 years and 3 months. The court found that the possession sentence was the only one that was manifestly excessive and adjusted the total sentence accordingly. The court also acknowledged the Crown's procedural error in failing to produce trial exhibits but determined that it did not impact the outcome of the case. The final orders of the court were that the defendant be re-sentenced to 7 years' imprisonment with a non-parole period of 5 years and 3 months.

Orders