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R v Kember

R v Kember

Case [2022] ACTSC 153 27 June 2022

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Kember
Citation:	[2022] ACTSC 153
Hearing Date:	24 June 2022
DecisionDate:	27 June 2022
Before:	McCallum CJ
Decision:	(1) On each of the six offences, the offender is convicted; (2) In respect of Count 1, sentence the offender to a term of imprisonment of 16 months commencing on 25 June 2022 and expiring on 24 October 2023; (3) In respect of Count 2, sentence the offender to a term of imprisonment of 10 months commencing on 25 June 2023 and expiring on 24 April 2024; (4) In respect of Count 3, sentence the offender to a term of imprisonment of 8 months commencing on 25 December 2023 and expiring on 24 August 2024; (5) In respect of Count 4, sentence the offender to a term of imprisonment of 6 months commencing on 25 June 2024 and expiring on 24 December 2024; (6) In respect of Count 5, sentence the offender to a term of imprisonment of 3 months commencing on 25 December 2024 and expiring on 24 March 2025; (7) In respect of Count 6, sentence the offender to a term of imprisonment for 6 months commencing on 25 December 2024 and expiring on 24 June 2025; (8) Direct that after serving 8 months of his sentence, the offender be released on a recognisance release order on 24 February 2023, upon giving security in the sum of $2000, after which the offender will be subject to a good behaviour order for a term of 2 years; (9) Pursuant to s 23ZD of the Crimes Act 1914 (Cth), and upon the application of the Director of Public Prosecutions, the following item is forfeited to the Commonwealth: a. 1 x White Apple iPhone X Mobile Phone; (10) Pursuant to s 111(2) of the Evidence (Miscellaneous Provisions) Act, and in order to give effect to the clear object of s 15YR of the Crimes Act 1914 (Cth), prohibit the publication of the following: a. The name of the victims and any child witness; b. The school which any of the victims attended at the time of the offending; c. The names of any staff of any school; d. The details of any social media account of any complainant or child witness.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offences of soliciting child pornography material using a carriage service – soliciting child abuse material using a carriage service – using a carriage service to transmit indecent material to a person under 16 years of age – using a carriage service to procure a person under 16 years – possessing child abuse material obtained or accessed using a carriage service – objective seriousness – multiple offences – accumulation and concurrency – where the imposition of wholly cumulative sentences would result in a crushing sentence – proportionality – deterrence – specific deterrence – where early guilty plea entered in the face of a strong prosecution case…

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 Kember

Details

AGLC: R v Kember [2022] ACTSC 153
Case: [2022] ACTSC 153
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, Rhys Kember has been convicted on six counts of child pornography offences, including soliciting child pornography material using a carriage service, using a carriage service to transmit indecent material to a person under 16 years, and possessing child abuse material obtained using a carriage service. The court was required to sentence him in accordance with Part 1B of the Crimes Act 1914 (Cth). In deciding the sentence, the court considered the nature and circumstances of the offences, the degree to which the offender had shown contrition for the offence, the personal circumstances of the offender, the degree to which the offender had pleaded guilty, the deterrent effect that any sentence or order under consideration may have on the person, the general deterrence, and the hardship to third parties.

In deciding the sentence, the court found that the most serious offence was soliciting child pornography material using a carriage service, which fell below the mid-range of seriousness for offences of this kind. The court also found that the other offences were below the mid-range of seriousness for offences of this kind. The court found that the offender had shown genuine remorse and accepted responsibility for his actions, and that the offender's childhood of some deprivation contributed to his offending. The court also found that a lengthy period of imprisonment would carry a significant risk that the offender's father, who is suffering from Alzheimer's disease, would lose any cognitive connection with his past and may deteriorate more rapidly as a result.

The court sentenced the offender to a term of imprisonment of 16 months for Count 1, 10 months for Count 2, 8 months for Count 3, 6 months for Count 4, 3 months for Count 5, and 6 months for Count 6. The court directed that the offender be released after serving 8 months of his sentence on a recognisance release order. The court also made orders forfeiting a mobile phone and prohibiting the publication of certain details relating to the victims and any child witness.

This case highlights the importance of considering the individual facts of each case when sentencing for child pornography offences, and the need to balance the need for deterrence and denunciation with the potential for rehabilitation and the impact on third parties. It also emphasises the importance of taking into account the personal circumstances of the offender, including any history of deprivation or abuse, when determining the appropriate sentence.

Orders