R v Maruskanic - [2019] ACTSC 337

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Maruskanic
Citation:	[2019] ACTSC 337
Hearing Dates:	15 April 2019; 5 July 2019
DecisionDate:	16 September 2019
Before:	Burns J
Decision:	See [35]–[45]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage service to transmit child pornography material – possession of child abuse material – using a carriage service to access child pornography material – very good prospects of rehabilitation – whether immediate term of imprisonment ordinarily warranted for child pornography offences
Legislation Cited:	Criminal Code 1995 (Cth) ss 473.1, 474.19 Crimes Act 1900 (ACT) ss 64(5), 65 Crimes (Sentence Administration) Act 2005 (ACT) s 42
Cases Cited:	DPP (Cth) v Garside [2016] VSCA 74; 50 VR 800 R v De Leeuw [2015] NSWCCA 183 R v Porte [2015] NSWCCA 174; 252 A Crim R 294
Parties:	The Queen (Crown) Andrew James Maruskanic (Offender)
Representation:	Counsel H Snobar (Crown) C Harris (Offender)
Solicitors Commonwealth Director of Public Prosecutions (Crown) Aulich Law (Offender)
File Number(s):	SCC 316 of 2018

BURNS J:

Andrew James Maruskanic, on 14 December 2018, you entered pleas of guilty to the following charges:

· Charge 1 (CC18/11480), using a carriage service to transmit child pornography material contrary to s 474.19(1)(a)(iii) of the Criminal Code 1995 (Cth) (the Commonwealth Criminal Code), carrying a maximum penalty of 15 years' imprisonment, or a fine of $189,000, or both.

· Charge 2 (CC18/11481), possession of child abuse material contrary to s 65 of the Crimes Act 1900 (ACT) (the Crimes Act), carrying a maximum penalty of seven years' imprisonment, or a fine of $105,000, or both.

· Charge 3 (CC18/11480), using a carriage service to access child pornography material contrary to s 474.19(1)(a)(i) of the Commonwealth Criminal Code, carrying a maximum penalty of 15 years' imprisonment, or a fine of $189,000, or both.

With regard to Charge 1 (CC18/11480), between 22 and 24 August 2018, members of the Australian Federal Police connected to your computer and successfully downloaded several files with names strongly suggestive that they contained child pornography. The three downloaded files were determined to constitute child pornography material as defined by the Commonwealth Criminal Code.

Due to the nature of the software used by you to download and store this material, it was available to other users who search for this material, to locate it on your computer and download it. This is referred to as ‘seeding’. Your computer was seeding this material to other users. On 13 September 2018, Police executed a search warrant at your residential premises in the ACT and seized a wireless modem-router, a black desktop computer, an external hard drive, a Samsung Galaxy phone, and an Apple iPad.

With regard to Charge 2 (CC18/11481), examination of the desktop computer identified image and video files that constituted child exploitation material as defined by s 64(5) of the Crimes Act, and also constituted child pornography material as defined by s 473.1 of the…

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.

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Details

AGLC: R v Maruskanic [2019] ACTSC 337
Case: [2019] ACTSC 337
Decision Date: 16 September 2019

CaseChat Overview and Summary

The matter before the court involved a criminal prosecution of Maruskanic, charged with various offences related to the possession and transmission of child pornography material. The case was heard in the relevant court of criminal jurisdiction. The key issues before the court were whether the defendant's actions warranted an immediate term of imprisonment and if so, what the appropriate sentence should be, considering the factors in mitigation and the defendant's prospects for rehabilitation.

The court had to consider the severity of the offences committed, which included using a carriage service to transmit and access child pornography material and possessing child abuse material. In assessing the appropriate sentence, the court was required to balance the need for deterrence and denunciation against the defendant's prospects for rehabilitation. The court examined the evidence presented, including the defendant's background, his admission of guilt, and the factors in mitigation.

The court found that while the offences were serious, the defendant had very good prospects of rehabilitation. This was based on his acceptance of responsibility, his previous good character, and the absence of any prior convictions. The court also considered the impact of imprisonment on the defendant's potential for rehabilitation. Ultimately, the court determined that an immediate term of imprisonment was not ordinarily warranted, taking into account the defendant's prospects for rehabilitation and other relevant factors.

The court ordered that Maruskanic be sentenced to a non-custodial penalty, reflecting the assessment of the defendant's rehabilitation prospects and the need for appropriate punishment and deterrence. The specific details of the sentence were outlined in the court's orders.

Orders

Orders of the court

See [35]–[45]

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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