R v Maloney - [2024] NSWDC 691

District Court

New South Wales

Medium Neutral Citation: R v Maloney [2024] NSWDC 691
Hearing dates: 15 March 2024, 27 June 2024
Date of orders: 30 August 2024
Decision date: 30 August 2024
Jurisdiction: Criminal
Before: Baker SC DCJ
Decision:
(1) For the State possession offence (Sequence 6), I impose a fixed term sentence of 12 months imprisonment commencing on 13 May 2023 and expiring on 12 May 2024.
(2) For the Commonwealth transmission offence (Sequence 1), I impose a sentence of 3 years and 9 months imprisonment commencing on 13 August 2023; and expiring on 12 May 2027. Pursuant to section 19AB(1) of the Crimes Act 1914 (Cth), I fix a non-parole period of 2 years and 4 months, expiring on 12 December 2025.
(3) To address the offender’s rehabilitation, I impose a condition of release that the offender be supervised by the Department of Community Corrections and such supervision include compliance with all reasonable directions as to ongoing treatment and counselling. A condition will also be that on release the offender should be referred to a NSW Corrective Services psychologist for completion of a sex offender’s risk assessment and guidance with case management.
(4) I also direct that a copy of the two psychiatric reports of Dr Richard Furst, be supplied to those responsible for the supervision of the offender.

Catchwords:
CRIME — sentencing — Commonwealth and State offences — offence under the Criminal Code Act 1995 (Cth), s 474.22(1) — use a carriage service to transmit child abuse material — offence under the Crimes Act 1900 (NSW), s 91H(2) — possess child abuse material — objective seriousness — Bugmy considerations — motivation for offending — offender’s mental health

Legislation Cited:
Criminal Code Act 1995 (Cth)
Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
Minehan v R [2010] NSWCCA 140
R v Hutchinson [2018] NSWCCA 152

Category: Sentence
Parties: Rex (Crown)
Kieran MALONEY (offender)
Representation:
Counsel:
Mr S Howell (offender)
Solicitors:
Mr B Scard (Crown)
Ms A Ritchie (offender)

File Number(s): 2022/00375425

JUDGMENT

Introduction

The offender, Kieran Maloney, appears for sentence for the offence that on or about 29 November 2022, he transmitted child abuse material using a carriage service, contrary to section 474.22(1) of the Criminal Code Act 1995 (Cth). The maximum penalty for this offence is 15 years imprisonment (Sequence 1).
The maximum penalty serves as a yardstick to be balanced with all other relevant sentencing considerations. This penalty makes abundantly clear the seriousness with which Parliament views these types of offences and the need for firm punishment to be imposed.
The offender will also be sentenced for a related charge on a section 166 certificate: that on 13 December 2022, he possessed child abuse material, contrary to section 91H(2) of the Crimes Act 1900 (NSW) (Sequence 6).
The maximum penalty for this offence is 10 years imprisonment. However, when sentencing the offender for sequence 6 the court has the same functions, and is subject to…

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 Maloney

Details

AGLC: R v Maloney [2024] NSWDC 691
Case: [2024] NSWDC 691
Decision Date: 30 August 2024

CaseChat Overview and Summary

The case before the court involved a defendant, Maloney, who was charged with both a Commonwealth offence under section 474.22(1) of the Criminal Code Act 1995 and a State offence under section 91H(2) of the Crimes Act 1900. The Commonwealth offence related to the use of a carriage service to transmit child abuse material, while the State offence pertained to the possession of child abuse material. The court was tasked with determining an appropriate sentence for both offences, considering factors such as the objective seriousness of the crimes, the relevance of Bugmy considerations, Maloney's motivation for offending, and his mental health.

The primary legal issues before the court were the assessment of the objective seriousness of the crimes, the applicability of Bugmy principles in determining sentencing, the influence of Maloney's motivation and mental health on the sentencing, and the appropriate balance between punishment and rehabilitation. The court had to weigh these factors to ensure that the sentences imposed were commensurate with the gravity of the offences while also taking into account the need for Maloney's rehabilitation.

In delivering the judgment, the court meticulously evaluated the objective seriousness of both the transmission and possession offences, recognising the heinous nature of the crimes involving child abuse material. The court also considered the Bugmy principles, which emphasise the importance of reflecting on the offender's personal circumstances and the need to avoid disproportionate sentences. The court acknowledged Maloney's motivation for offending and his mental health issues, which played a significant role in shaping the sentencing approach. Ultimately, the court imposed a fixed term sentence of 12 months imprisonment for the State possession offence and a sentence of 3 years and 9 months imprisonment for the Commonwealth transmission offence, with specific non-parole periods for each. Additionally, the court imposed conditions of release aimed at addressing Maloney's rehabilitation, including supervision by the Department of Community Corrections and referral for a sex offender's risk assessment.

The final orders included a fixed term sentence of 12 months imprisonment for the State possession offence, to commence on 13 May 2023 and expire on 12 May 2024. For the Commonwealth transmission offence, the court imposed a sentence of 3 years and 9 months imprisonment, with a non-parole period of 2 years and 4 months, to commence on 13 August 2023 and expire on 12 May 2027. The court also directed that Maloney be supervised by the Department of Community Corrections, with conditions for ongoing treatment and counselling. Furthermore, upon release, Maloney was to be referred to a NSW Corrective Services psychologist for a sex offender's risk assessment and case management guidance.

Orders

Orders of the court

(1) For the State possession offence (Sequence 6), I impose a fixed term sentence of 12 months imprisonment commencing on 13 May 2023 and expiring on 12 May 2024.

(2) For the Commonwealth transmission offence (Sequence 1), I impose a sentence of 3 years and 9 months imprisonment commencing on 13 August 2023; and expiring on 12 May 2027. Pursuant to section 19AB(1) of the Crimes Act 1914 (Cth), I fix a non-parole period of 2 years and 4 months, expiring on 12 December 2025.

(3) To address the offender’s rehabilitation, I impose a condition of release that the offender be supervised by the Department of Community Corrections and such supervision include compliance with all reasonable directions as to ongoing treatment and counselling. A condition will also be that on release the offender should be referred to a NSW Corrective Services psychologist for completion of a sex offender’s risk assessment and guidance with case management.

(4) I also direct that a copy of the two psychiatric reports of Dr Richard Furst, be supplied to those responsible for the supervision of the offender.

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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Medium Neutral Citation:	R v Maloney [2024] NSWDC 691
Hearing dates:	15 March 2024, 27 June 2024
Date of orders:	30 August 2024
Decision date:	30 August 2024
Jurisdiction:	Criminal
Before:	Baker SC DCJ
Decision:	(1) For the State possession offence (Sequence 6), I impose a fixed term sentence of 12 months imprisonment commencing on 13 May 2023 and expiring on 12 May 2024. (2) For the Commonwealth transmission offence (Sequence 1), I impose a sentence of 3 years and 9 months imprisonment commencing on 13 August 2023; and expiring on 12 May 2027. Pursuant to section 19AB(1) of the Crimes Act 1914 (Cth), I fix a non-parole period of 2 years and 4 months, expiring on 12 December 2025. (3) To address the offender’s rehabilitation, I impose a condition of release that the offender be supervised by the Department of Community Corrections and such supervision include compliance with all reasonable directions as to ongoing treatment and counselling. A condition will also be that on release the offender should be referred to a NSW Corrective Services psychologist for completion of a sex offender’s risk assessment and guidance with case management. (4) I also direct that a copy of the two psychiatric reports of Dr Richard Furst, be supplied to those responsible for the supervision of the offender.
Catchwords:	CRIME — sentencing — Commonwealth and State offences — offence under the Criminal Code Act 1995 (Cth), s 474.22(1) — use a carriage service to transmit child abuse material — offence under the Crimes Act 1900 (NSW), s 91H(2) — possess child abuse material — objective seriousness — Bugmy considerations — motivation for offending — offender’s mental health
Legislation Cited:	Criminal Code Act 1995 (Cth) Crimes Act 1900 (NSW) Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Minehan v R [2010] NSWCCA 140 R v Hutchinson [2018] NSWCCA 152
Category:	Sentence
Parties:	Rex (Crown) Kieran MALONEY (offender)
Representation:	Counsel: Mr S Howell (offender) Solicitors: Mr B Scard (Crown) Ms A Ritchie (offender)
File Number(s):	2022/00375425