R v JS - [2018] NSWDC 342

District Court

New South Wales

Medium Neutral Citation: R v JS [2018] NSWDC 342
Hearing dates: 11 October 2018
Decision date: 21 November 2018
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full-time custodial sentence. For orders see [117]

Catchwords: Child sexual offence; making and disseminating child abuse material; aggregate sentence
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Berryman v R [2017] NSWCCA 297
Biddell v R [2017] NSWCCA 128
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Fedele v R [2015] NSWCCA 286
Greenwood v R [2014] NSWCCA 64
JM v R [2014] NSWCCA 297
R v Booth [2009] NSWCCA 89
R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41
R v Gavel [2014] NSWCCA 56
R v Hutchinson [2018] NSW CCA 152
R v Porte [2015] NSWCCA 174
R v Van Ryn [2016] NSWCCA 1
Category: Sentence
Parties: Director of Public Prosecutions (Crown)
JS (Offender)
Representation:
Counsel:
M Coates (Crown Prosecutor)
B Neild (Offender)
Solicitors:
L Burgoyne (Crown)
E Renard (Offender)

File Number(s): 17/257186
Publication restriction: Pursuant to s 7 Non-Publication Order/Suppression Order in respect of name of Complainant and Offender

REMARKS ON SENTENCE

The offender is being sentenced in respect of three offences as follows:

Sequence 2 – Disseminate child abuse material pursuant to s 91H(2) of the Crimes Act 1900.

The maximum penalty for the offence is 10 years imprisonment, and there is no Standard Non-Parole Period.

Sequence 6 – Use child under 14 years to make child abuse material pursuant to s 91G(1)(a) of the Crimes Act 1900.

The maximum penalty for the offence is 14 years imprisonment, and there is a Standard Non-Parole period of 6 years imprisonment.

Sequence 7 – Sexual intercourse with a child under the age of 10 years (DV), pursuant to s 66A(1) of the Crimes Act 1900.

The maximum penalty for the offence is life imprisonment and there is a Standard Non-Parole Period of 15 years imprisonment.

The offending took place between 15 June 2017 and 23 August 2017 when the offender was arrested. She has been in custody since that date.

The sentence hearing

The sentence hearing took place at Port Macquarie District Court on 11 October 2018. The Crown Sentence Summary became Ex A on the sentence hearing. It included an agreed statement of facts which may be summarised as follows.
The offender was born on 30 May 1982. She lived with her partner and two children at Barrington, New South Wales. On 23 August 2017, South Australian Police executed a search warrant at the premises of a person named Shane Hartley. A number of electronic items were seized and found to contain child abuse material. When questioned by police, Hartley told them that the offender had sent the child abuse material to him. On the same day, New South Wales Police executed a search warrant at the offender’s home and seized a number of electronic devices. The offender was arrested and participated in an electronically recorded interview.…

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 JS

Details

AGLC: R v JS [2018] NSWDC 342
Case: [2018] NSWDC 342
Decision Date: 21 November 2018

CaseChat Overview and Summary

In the case of R v JS, the respondent was convicted of producing child sexual abuse material and disseminating that material. The case was heard and determined in the County Court of Victoria. The respondent was found to have recorded himself sexually abusing a child and then shared that recording with others.

The legal issues before the court included the appropriate sentence for the respondent's crimes and whether the sentences for each offence should run concurrently or consecutively. The court was also required to consider the principles of proportionality and deterrence in sentencing.

The court found that the crimes were of a high level of culpability and had a significant impact on the victim. In particular, the court emphasised the respondent's abuse of a position of trust and the gravity of the crimes. The court determined that an aggregate sentence was appropriate, taking into account the totality of the offending. The court rejected the argument that the sentences should run concurrently, finding that the crimes were distinct and warranted consecutive sentences. The court ultimately imposed a full-time custodial sentence, with specific details of the orders provided in the judgment.

Orders

Orders of the court

Full-time custodial sentence. For orders see [117]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v JS [2018] NSWDC 342
Hearing dates:	11 October 2018
Decision date:	21 November 2018
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time custodial sentence. For orders see [117]
Catchwords:	Child sexual offence; making and disseminating child abuse material; aggregate sentence
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Berryman v R [2017] NSWCCA 297 Biddell v R [2017] NSWCCA 128 DPP (Cth) v De La Rosa [2010] NSWCCA 194 Fedele v R [2015] NSWCCA 286 Greenwood v R [2014] NSWCCA 64 JM v R [2014] NSWCCA 297 R v Booth [2009] NSWCCA 89 R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 R v Gavel [2014] NSWCCA 56 R v Hutchinson [2018] NSW CCA 152 R v Porte [2015] NSWCCA 174 R v Van Ryn [2016] NSWCCA 1
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) JS (Offender)
Representation:	Counsel: M Coates (Crown Prosecutor) B Neild (Offender) Solicitors: L Burgoyne (Crown) E Renard (Offender)
File Number(s):	17/257186
Publication restriction:	Pursuant to s 7 Non-Publication Order/Suppression Order in respect of name of Complainant and Offender