R v Leleu

[2010] SASC 80

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v LELEU

[2010] SASC 80

Judgment of The Court of Criminal Appeal (ex tempore)

(The Honourable Chief Justice Doyle, The Honourable Justice Sulan and The Honourable Justice Vanstone)

17 March 2010

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES

Respondent sentenced to imprisonment for contravention of s 474.19 of the Criminal Code 1995 (Cth) - sentencing Judge took into account pornographic material downloaded before commencement of s 474.19 - appeal against sentence.

HELD: common ground that Judge erred in taking into account material downloaded before commencement of s 474.19 - appeal allowed - appellant resentenced.

Criminal Code 1995 (Cth) s 474.19, referred to.

R v LELEU
[2010] SASC 80

Court of Criminal Appeal:  Doyle CJ, Sulan and Vanstone JJ

1. THE COURT (ex tempore):   In this case Mr Leleu pleaded guilty to one count of using a carriage service to access child pornography contrary to s 474.19 of the Criminal Code 1995 (Cth). The maximum penalty for that offence is 10 years’ imprisonment. A District Court Judge sentenced him to imprisonment for 12 months. But for a plea of guilty, his remorse and other matters in mitigation, he would have sentenced him to imprisonment for 18 months. The judge made a recognisance order under which Mr Leleu was to be released at the expiration of six months after entering into a recognisance in the sum of $1,000 for a period of 18 months. The sentence was imposed on 25 September 2009 and so Mr Leleu was due for release on 25 March 2010. In fact, he was released on bail pending appeal on 19 February 2010 having served four months and 25 days of his sentence.

2. The offence arose from Mr Leleu downloading pornography and, in particular, pornographic materials of children. Due to some confusion about the date on which s 474.19 commenced, the Judge took into account pornographic material downloaded by Mr Leleu before the commencement of the section.

3. It is common ground although the Judge considered and took into account 1,934 images and three videos, the number of images taken into account should have been 1,511, some 400 less. The remarks indicate that the Judge had regard to the full number of images.

4. It is common ground that in this respect a mistake was made. It is reasonable to proceed on the basis that the sentence would have been a little less but for this mistake.  The Court does not regard the sentence in any way excessive or heavy. This is not the case to consider the appropriate standard of sentence but the Court is prepared to accept that, but for the mistake, the sentence would have been a little less than it is. Accordingly, the Commonwealth Director of Public Prosecutions not opposing this, the Court will allow the appeal.

5. The sentence imposed by the sentencing Judge will be set aside. The Court substitutes a sentence of imprisonment for 11 months.  The Court considers a reduction of one month is all that is appropriate. The Court orders that Mr Leleu be taken to have been released on 19 February 2010, the date bail was granted, subject to him entering into a recognisance to be of good behaviour for 18 months, the recognisance to be on the same terms and conditions as ordered by the sentencing Judge.

6. This decision reflects the fact that the Court is doing no more than making an adjustment to reflect the error made in the course of the sentencing process.  But for the error the sentence would have been slightly less than it is. As we have indicated, we have taken the view that the sentence actually served is appropriate and will suffice and the order will, in effect, operate retrospectively from that date and the recognisance will be for 18 months, as he has already completed six months of the original two year recognisance.