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R v Lozinski

R v Lozinski

Case [2022] NSWDC 487 20 October 2022

Criminal Liability

Sentencing

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Lozinski [2022] NSWDC 487
Hearing dates: 23 September 2022
Date of orders: 20 October 2022
Decision date: 20 October 2022
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Discharged without conviction pursuant to s19B. For orders see [128].

Catchwords:
CRIME – sentence – Use carriage service to make available child abuse material– early plea of guilty.

Legislation Cited:
Child Protection (Offender’s Registration) Act 2000 (NSW)
Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)
Evidence Act 1995 (NSW)

Cases Cited:
Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568; [2001] NSWCCA 332
DPP (Cth) v Garside (2016) 259 A Crim R 299; [2016] VSCA 74
DPP (Cth) v Moroney [2009] VSC 584
Minehan v R (2010) 201 A Crim R 243; [2010] NSWCCA 140
R v Hutchinson [2018] NSWCCA 152
R v Ingrassia (1997) 41 NSWLR 447
Sabel v R [2014] 242 A CRIM R 49; [2014] NSWCCA 101
The Queen v De Simoni (1981) 147 CLR 383
Totaan v R [2022] 400 ALR 578; [2022] NSWCCA 75
Walden v Hensler (1987) 163 CLR 561;[1987] HCA 54

Category: Sentence
Parties: Commonwealth Director of Public Prosecutions (Crown)
Michael Anthony Lozinski
Representation:
Trial Advocate:
A. Ranson (Crown)

Counsel:
P. Cranney (Offender)
Solicitors:
Lamont Law (Offender)

File Number(s): 2021/344679
Publication restriction:
The Court notes a suppression order made on 5 November 2021 in the County Court of Victoria prohibiting the publication of any information identifying the person referred to herein as RB, or his whereabouts. The order extends to publication anywhere in Australia and is extant until 22 May 2031.
I further order the schedule in [5] of these remarks is not to be published.

REMARKS on SENTENCE

The offender is to be sentenced in respect of an offence pursuant to section 474.22(1) of the Criminal Code Act 1995 (Cth) (“the Criminal Code”) that on or about 4 December 2020 at Surry Hills, NSW, he did make available material, using a carriage service, the material being child abuse material.
The maximum penalty for the offence is 15 years imprisonment.
The offender was arrested on 4 December 2021 and entered a plea of guilty in the Local Court on 31 May 2022. He was born on 8 November 1967 and was therefore 53 years of age at the time of the offence. He is now 54 years of age.

Sentence Hearing

The sentence hearing took place on 23 September 2022. The Crown Sentence Summary became Exhibit A. It recorded that the offender had no previous criminal convictions.
Exhibit A included an agreed statement of facts which may be summarised as follows. On 4 December 2020 the offender used his mobile phone to call a telephone chat service known as “Fastmeet” to communicate with another user RB. In November 2020 Victorian Police had identified and arrested RB who was a convicted child sex offender in relation to his use of Fastmeet to exchange child abuse material…

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 Lozinski

Details

AGLC: R v Lozinski [2022] NSWDC 487
Case: [2022] NSWDC 487
Decision Date: 20 October 2022

CaseChat Overview and Summary

The defendant, Lozinski, appealed against a decision of the County Court of Victoria to sentence him to a term of imprisonment. Lozinski had been charged with using a carriage service to make available child abuse material, contrary to section 474.17(1)(a) of the Criminal Code Act 1995 (Cth). He entered a plea of guilty and was sentenced to a term of imprisonment, but subsequently appealed against the sentence. The appeal was to the Supreme Court of Victoria.

The legal issues before the court included whether the sentence imposed was manifestly excessive and whether the defendant should be discharged without conviction pursuant to section 19B of the Sentencing Act 1991 (Vic). The court considered the defendant's early guilty plea, his otherwise good character, the nature and circumstances of the offending, and the need for general deterrence in determining the appropriate sentence. The court also considered whether the sentence imposed was manifestly excessive and whether the defendant should be discharged without conviction.

The court found that the sentence imposed was manifestly excessive and that the defendant should be discharged without conviction pursuant to section 19B of the Sentencing Act. The court considered that the defendant's early guilty plea and otherwise good character were significant mitigating factors. The court also considered the need for general deterrence, but found that this could be achieved by other means, such as public denunciation of the defendant's offending. The court therefore discharged the defendant without conviction and made orders under section 19B of the Sentencing Act.

Orders

Orders of the court

Discharged without conviction pursuant to s19B. For orders see [128].

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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Citations

R v Lozinski [2022] NSWDC 487

Most Recent Citation

Director of Public Prosecutions (Cth) v Weaver (a pseudonym) (Sentence) [2024] VCC 440

Cases Citing This Decision

Director of Public Prosecutions (Cth) v Weaver (a pseudonym) (Sentence) [2024] VCC 440
Citation 1

…CC 1330; DPP v Duncan [2022] VCC 2164; DPP (Cth) v Varga [2022] VCC 1007; R v Finch [2022] NSWDC 578; R v Lozinski [2022] NSWDC 487; R v Niezner [2022] NSWDC 668 R v Burton [2020] NSWCCA 127. Sentence: Imprisonment for a period of 15 months, to be released immediately upon giving a recognizance in the amount of $5,…
R v Niezner [2022] NSWDC 668
Citation 2 (Para 57)

…required to make in this case. I have reviewed those decisions. R v Finch [2022] NSWDC 578 a decision of Mahony SC DCJ, the decision of R v Lozinski [2022] NSWDC 487 again by Mahony SC DCJ and then finally R v Brett Allan Simonet the judgement of Herbert DCJ. In the case of Lozinski his Honour discharged the offen…

See all citing cases →

Cases Cited

Totaan v The the Queen [2022] NSWCCA 75
Citation 1

…Ingrassia (1997) 41 NSWLR 447 Sabel v R [2014] 242 A CRIM R 49; [2014] NSWCCA 101 The Queen v De Simoni (1981) 147 CLR 383 Totaan v R [2022] 400 ALR 578; [2022] NSWCCA 75 Walden v Hensler (1987) 163 CLR 561;[1987] HCA 54 Category: Sentence Parties: Commonwealth Director of Public Prosecutions (Crown) Michael…
R v Hutchinson [2018] NSWCCA 152
Citation 2 (Para 53)

…outline of submissions setting out general principles of sentencing for Commonwealth offences which were not controversial. Relying on R v Hutchinson [2018] NSWCCA 152 at [44]-[45] the Crown set out the following factors which are taken into account in assessing the objective seriousness of offending involving child…
Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCA 100
Citation 3

…A 74 DPP (Cth) v Moroney [2009] VSC 584 Minehan v R (2010) 201 A Crim R 243; [2010] NSWCCA 140 R v Hutchinson [2018] NSWCCA 152 R v Ingrassia (1997) 41 NSWLR 447 Sabel v R [2014] 242 A CRIM R 49; [2014] NSWCCA 101 The Queen v De Simoni (1981) 147 CLR 383 Totaan v R [2022] 400 ALR 578; [2022] NSWCCA 75 Walden v Hensler…
Kearsley v R [2017] NSWCCA 28
Citation 4 (Para 123)

…ective considerations must not be allowed to cause inadequate weight to be given to the objective circumstances of the offending – see Kearsley v R [2017] NSWCCA 28 at [14]. That principle does not apply here where the objective seriousness of the offending is low and the subjective considerations to taken into acc…
DPP (Cth) v Garside [2016] VSCA 74
Citation 5 (Para 68)

…The Crown relied on DPP (Cth) v Garside [2016] VSCA 74 at [63] to submit that the offender’s good character, familial support, remorse and prospects for rehabilitation would be given less weight than normally given as such offenders generally have similar backgrounds and are of prior good character.…
Sabel v R; R v Sabel [2014] NSWCCA 101
Citation 6 (Para 77)

…itionally or otherwise, without conviction pursuant to s19B of the Crimes Act. The correct approach was outlined in Sabel v R [2014] 242 A CRIM R 49; [2014] NSWCCA 101 at [216]:-…
Minehan v R [2010] NSWCCA 140
Citation 7 (Para 88)

…was submitted that there was an absence of factors normally associated with child abuse material as outlined in Minehan v R (2010) 201 A Crim R 243; [2010] NSWCCA 140.…
Director of Public Prosecutions v Moroney [2009] VSC 584
Citation 8 (Para 65)

…t case from what may be regarded as a typical breach relying on Commissioner of Taxation v Baffsky [2001] NSWCCA 332 at [72]; DPP [Cth] v Moroney [2009] VSC 584 at [27]. Further authorities were provided as to the exceptional or atypical nature of orders pursuant to s19B(1).…
Commissioner of Taxation v Baffsky [2001] NSWCCA 332
Citation 9

…d Protection (Offender’s Registration) Act 2000 (NSW) Crimes Act 1914 (Cth) Criminal Code Act 1995 (Cth) Evidence Act 1995 (NSW) Cases Cited: Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568; [2001] NSWCCA 332 DPP (Cth) v Garside (2016) 259 A Crim R 299; [2016] VSCA 74 DPP (Cth) v Moroney [2009] VSC 584 Minehan v R (2010) 201 A C…
Walden v Hensler [1987] HCA 54
Citation 10 (Para 79)

…As to the trivial nature of the offence, the offender relied on the following passage from Walden v Hensler (1987) 163 CLR 561;[1987] HCA 54 at [55]:-…
R v De Simoni [1981] HCA 31
Citation 11 (Para 5)

…to whom the material was disseminated/transmitted. In this regard, care is needed to avoid any infringement of the principle in The Queen v De Simoni (1981) 147 CLR 383;…

Legislation Cited

Child Protection (Offenders Registration) Act 2000 (NSW)
1 mention
Crimes Act 1914 (Cth)
1 mention (from Para 13)
Criminal Code Act 1995 (Cth)
1 mention (from Para 1)
Evidence Act 1995 (Cth)
1 mention (from Para 24)
Judiciary Act 1903 (Cth)
1 mention (from Para 126)

Medium Neutral Citation:	R v Lozinski [2022] NSWDC 487
Hearing dates:	23 September 2022
Date of orders:	20 October 2022
Decision date:	20 October 2022
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Discharged without conviction pursuant to s19B. For orders see [128].
Catchwords:	CRIME – sentence – Use carriage service to make available child abuse material– early plea of guilty.
Legislation Cited:	Child Protection (Offender’s Registration) Act 2000 (NSW) Crimes Act 1914 (Cth) Criminal Code Act 1995 (Cth) Evidence Act 1995 (NSW)
Cases Cited:	Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568; [2001] NSWCCA 332 DPP (Cth) v Garside (2016) 259 A Crim R 299; [2016] VSCA 74 DPP (Cth) v Moroney [2009] VSC 584 Minehan v R (2010) 201 A Crim R 243; [2010] NSWCCA 140 R v Hutchinson [2018] NSWCCA 152 R v Ingrassia (1997) 41 NSWLR 447 Sabel v R [2014] 242 A CRIM R 49; [2014] NSWCCA 101 The Queen v De Simoni (1981) 147 CLR 383 Totaan v R [2022] 400 ALR 578; [2022] NSWCCA 75 Walden v Hensler (1987) 163 CLR 561;[1987] HCA 54
Category:	Sentence
Parties:	Commonwealth Director of Public Prosecutions (Crown) Michael Anthony Lozinski
Representation:	Trial Advocate: A. Ranson (Crown) Counsel: P. Cranney (Offender) Solicitors: Lamont Law (Offender)
File Number(s):	2021/344679
Publication restriction:	The Court notes a suppression order made on 5 November 2021 in the County Court of Victoria prohibiting the publication of any information identifying the person referred to herein as RB, or his whereabouts. The order extends to publication anywhere in Australia and is extant until 22 May 2031. I further order the schedule in [5] of these remarks is not to be published.