R v Lee

Case [2013] WASCA 216


R -v- LEE [2013] WASCA 216



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2013] WASCA 216
THE COURT OF APPEAL (WA)
Case No:CACR:11/201312 AUGUST 2013
Coram:McLURE P
MAZZA JA
HALL J
19/09/13
17Judgment 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
HEARD : 12 AUGUST 2013 DELIVERED : 19 SEPTEMBER 2013 FILE NO/S : CACR 11 of 2013 BETWEEN : THE QUEEN
    Appellant

    AND

    MALCOLM KEITH LEE
    Respondent


ON…

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R -v- LEE [2013] WASCA 216
Case
[2013] WASCA 216
Decision Date

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.

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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