R -v- LEE [2013] WASCA 216
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 216 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:11/2013 | 12 AUGUST 2013 | |
| Coram: | McLURE P MAZZA JA HALL J | 19/09/13 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Appellant resentenced | ||
| D | |||
| PDF Version |
| Parties: | THE QUEEN MALCOLM KEITH LEE |
Catchwords: | Criminal law Crown appeal against sentence Importing child pornography Sentence of 15 months' imprisonment with order to be released forthwith on recognisance Sentencing for federal offences General deterrence Whether relevant difference between knowledge and recklessness as to content of DVD Manifest inadequacy |
Legislation: | Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA), s 60(4) Crimes Act 1914 (Cth), s 16, s 16A, s 16BA, s 17A, s 20(1)(b), Pt 1B Criminal Code (WA), s 220, s 320, s 321, s 321A, s 378(7) Criminal Code 1995 (Cth), s 5, s 307, s 474.19 Customs Act 1901 (Cth), s 233(1), s 233BAB(5) Judiciary Act 1903 (Cth), s 68 Misuse of Drugs Act 1981 (WA), s 6(1) Sentencing Act 1995 (WA), s 6(4), s 39(3) |
Case References: | Assheton v The Queen [2002] WASCA 209 Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638 Cargnello v Director of Public Prosecutions (Cth) (2012) 266 FLR 464 Collins v The State of Western Australia [2007] WASCA 108 Dinsdale v The Queen (2000) 202 CLR 321 Director of Public Prosecutions (Cth) v D'Alessandro (2010) 26 VR 477 Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370 Director of Public Prosecutions (Cth) v Ison [2010] VSCA 286 Director of Public Prosecutions (Vic) v Groube [2010] VSCA 150 Director of Public Prosecutions v Smith [2010] VSCA 215 Furber v The Queen [2008] WASCA 233 Gent v The Queen (2005) 162 A Crim R 29 Hili v The Queen (2010) 242 CLR 520 Hill v The State of Western Australia [2009] WASCA 4 Phinthong v The Queen [2011] WASCA 192 Ponniah v The Queen [2011] WASCA 105 R v Cook; ex parte Attorney-General (Qld) [2004] QCA 469 R v Cruz; ex parte Director of Public Prosecutions (Cth) [2010] QCA 90 R v Davis [2012] QCA 324 R v Gordon; ex parte Director of Public Prosecutions (Cth) [2009] QCA 209 R v Oliver [2003] 2 Cr App R (S) 15 Smit v The State of Western Australia [2011] WASCA 124 The State of Western Australia v Johnson [2010] WASCA 187 The State of Western Australia v Munda [2012] WASCA 164 Vagh v The State of Western Australia [2007] WASCA 17 VIM v The State of Western Australia [2005] WASCA 233 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : R -v- LEE [2013] WASCA 216 CORAM : McLURE P
- MAZZA JA
HALL J
- Appellant
AND
MALCOLM KEITH LEE
Respondent
ON…
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- R -v- LEE [2013] WASCA 216
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- [2013] WASCA 216
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CaseChat Overview and Summary
The matter before the court was an appeal by the Crown against a sentence imposed on Lee, who had been convicted of importing child pornography. The sentence in question was 15 months' imprisonment with an order for the defendant to be released forthwith on recognisance. The Crown argued that the sentence was manifestly inadequate, and sought a more severe punishment. The primary issue for the court was whether the original sentence was sufficiently severe to achieve the purposes of general deterrence and denunciation, and whether there was a relevant difference between knowledge and recklessness regarding the content of the DVD.
The court considered the principles of sentencing for federal offences, emphasising the importance of achieving general deterrence and denunciation, particularly in cases involving child pornography. The court noted that the defendant's knowledge and intent in importing the material played a significant role in determining the appropriate sentence. The court concluded that the original sentence did not adequately reflect the seriousness of the offence and did not sufficiently achieve the aims of general deterrence and denunciation. The court found that there was a relevant difference between knowledge and recklessness in this context, as the defendant's knowledge of the content of the DVD was a significant aggravating factor. The court held that the original sentence was manifestly inadequate.
Accordingly, the appeal was allowed, and the appellant was resentenced. The court did not specify the new sentence, but it was made clear that the resentencing was to be carried out by a different judge. The court emphasised the importance of ensuring that sentences for federal offences, particularly those involving child pornography, reflect the gravity of the crimes and serve the purposes of general deterrence and denunciation.
The court considered the principles of sentencing for federal offences, emphasising the importance of achieving general deterrence and denunciation, particularly in cases involving child pornography. The court noted that the defendant's knowledge and intent in importing the material played a significant role in determining the appropriate sentence. The court concluded that the original sentence did not adequately reflect the seriousness of the offence and did not sufficiently achieve the aims of general deterrence and denunciation. The court found that there was a relevant difference between knowledge and recklessness in this context, as the defendant's knowledge of the content of the DVD was a significant aggravating factor. The court held that the original sentence was manifestly inadequate.
Accordingly, the appeal was allowed, and the appellant was resentenced. The court did not specify the new sentence, but it was made clear that the resentencing was to be carried out by a different judge. The court emphasised the importance of ensuring that sentences for federal offences, particularly those involving child pornography, reflect the gravity of the crimes and serve the purposes of general deterrence and denunciation.
Orders
Orders of the court
Appeal allowed
Appellant resentenced
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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