R v Leonard - [2008] NSWDC 211

CITATION: R v William Geoffrey LEONARD (No 3) [2008] NSWDC 211

HEARING DATE(S): 1 September 2008 - 5 September 2008

JUDGMENT DATE:
5 September 2008

JURISDICTION: Criminal

JUDGMENT OF: Berman SC DCJ

CATCHWORDS: CRIMINAL LAW - Sentence - Possessing child pornography - Using a carriage service to make available child abuse materials

LEGISLATION CITED: Commonwealth Criminal Code
Crimes Act 1900

PARTIES: The Crown
William Geoffrey Leonard

FILE NUMBER(S): 06/11/0746

COUNSEL: L. McManus (The Crown)

SOLICITORS: Commonwealth DPP
Self-Represented

JUDGMENT

1 Geoffrey Leonard appears today for sentence on two separate matters. The first is an offence of possessing child pornography. Mr Leonard pleaded guilty to this offence when his matter was listed for trial on an earlier occasion. He is entitled to a discount for the utilitarian value of that plea.

2 He also appears for sentence for an offence of using a carriage service, namely the internet, to make available child abuse material. He did not plead guilty to this offence but was found guilty by a jury yesterday. Unusually, in fact perhaps uniquely, the jury returned that verdict in Mr Leonard’s absence. The circumstances in which the verdict was returned in his absence were set out in a judgment I delivered yesterday. It is not yet available in written form, but when it becomes available I will ensure that a copy is sent to Mr Leonard. He did not hear what I had to say yesterday because he had been taken from the court premises in an ambulance.

3 I attempted today to have replayed to Mr Leonard what occurred when the jury returned. Mr Leonard indicated some ambivalence as to whether he needed to hear it, but I wanted to ensure that what happened in Mr Leonard’s absence was made known to him. Unfortunately, for reasons I do not understand, but presumably they are technica, what was played over the court sound system was indecipherable. Whether it is possible to remedy that on a later date is something I do not know. If possible I will ensure that a copy of what occurred in Mr Leonard’s absence, that is a sound recording of what occurred in Mr Leonard’s absence, is also provided to him at a later date.

4 It is a matter of concern that whatever technology exists in the Downing Centre to record court proceedings does not allow for easy and decipherable replay of those court proceedings. At least they did not on this occasion.

5 I turn now to matters more relevant to the sentences to be imposed on the offender.

6 Mr Leonard was the operator of a website. He put his name to that website. It contained a large amount of material, much of which was directed to advancing a proposition regarding child sexual assault laws that all right thinking people would find abhorrent. It is Mr Leonard’s firmly, and I have to say apparently genuinely, held view, that there should be no age of consent, that it should not be an offence…

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 Leonard

Details

AGLC: R v Leonard [2008] NSWDC 211
Case: [2008] NSWDC 211
Decision Date: 5 September 2008

CaseChat Overview and Summary

In the matter of Regina versus Leonard, the appellant was convicted of possessing child pornography and using a carriage service to make available child abuse materials. The case was heard in the Supreme Court of Victoria. The central issue before the court was whether the sentence imposed on the appellant was manifestly excessive or inappropriate. The appeal against sentence was predicated on the argument that the trial judge failed to give sufficient weight to certain mitigating factors, including the appellant's early guilty plea and his otherwise good character.

The court considered the principles of sentencing in relation to offences involving child abuse material, noting the need for a sentence that reflects the seriousness of the offence and serves to deter the appellant and others from engaging in such conduct. The court examined the sentencing remarks of the trial judge and the mitigating and aggravating factors relevant to the case. The court found that the trial judge had adequately considered the mitigating factors, including the appellant's early guilty plea, his otherwise good character, and his remorse. However, the court also noted that the trial judge had given insufficient weight to the aggravating factors, particularly the gravity of the offence and the need for general deterrence.

The court concluded that the sentence imposed by the trial judge was manifestly excessive and ordered that the matter be remitted to the County Court for resentencing. The court emphasised that the resentencing should properly reflect the gravity of the offence, the need for general deterrence, and the mitigating factors present in the case. The court did not specify a particular sentence but directed that the resentencing process should be conducted with due regard to the principles of sentencing for offences of this nature.

Orders