R v MB - [2014] ACTSC 399

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v MB
Citation:	[2014] ACTSC 399
Hearing Date(s):	17 December 2014
DecisionDate:	17 December 2014
Before:	Murrell CJ
Decision:	See [31]–[33]
Category:	Sentence
Catchwords:	CRIMINAL − Sentence − Particular offences − crimes and offences against children – use carriage service to access child pornography material
Legislation Cited:	Criminal Code Act 1995 (Cth) s 474.19 Crimes Act 1914 (Cth) ss 16A, 20, 23ZD
Cases Cited:	Fowler v Gualberto Jnr [2006] ACTSC 106 Minehan v R [2010] NSWCCA 140 R v Cooper [2012] ACTCA 9 R v Forbes [2014] ACTSC 91 R v Oliver & Ors [2002] EWCA Crim 2766 R v Lovi [2012] QCA 24 R v Minahan [2014] ACTSC 168 R v Walsh (1993) 69 A Crim R 579 R v Smith [2004] QCA 417
Parties:	The Queen (Crown) MB (Offender)
Representation:	Counsel Mr T Hickey (Crown) Mr R Thomas (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Paul Edmonds & Associates (Offender)
File Number(s):	SCC 128 of 2014

MURRELL CJ:

The Offences

On 17 September 2014 the offender was found guilty by a jury of three charges of using a carriage service to access child pornography material contrary to s 474.19(1)(a) of the Criminal Code Act 1995 (Cth). The offences occurred on 7 November 2012, 3 December 2012 and 20 December 2012. Each offence carries a maximum available penalty of 15 years’ imprisonment.

On 7 November 2012 the offender logged onto his notebook computer and accessed a free photo posting website. At about 11.09pm he typed the search term "boys" in the nudity section of the website. He thereby accessed pages containing approximately 25 child pornography images. The images depicted approximately ten different boys posing in a sexually suggestive way. The images were categorised on the Child Exploitation Tracking System (CETS) scale as 1.

On 3 December 2012 the offender logged onto his notebook computer. He accessed google.com.au, a search engine website. At about 11.23pm he accessed images of young men and boys without their shirts. At about 11.35pm he typed the search term "boys no undies" in the images section of the website. He thereby accessed pages containing approximately 15 child pornography images. The images depicted approximately ten different boys posing in sexually suggestive ways. The images are categorised as CETS 1.

The third offence occurred on 20 December 2012. The offender logged onto his notebook computer and accessed google.com.au. At about 11.47pm he typed the search term "boys first time" in the images section of the website. He thereby accessed pages containing approximately 234 child pornography images of boys. These images ranged from CETS 1 to CETS 4. Forty-eight of the 234 images were CETS 1, 41 were CETS 2, and 30 were CETS 3. The remaining 115 images were CETS 4; they depicted penetrative sexual activity between children or between adults and children.

The three occasions that were the subject of the charges were not the first occasions that the offender had accessed child pornography…

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 MB

Details

AGLC: R v MB [2014] ACTSC 399
Case: [2014] ACTSC 399
Decision Date: 17 December 2014

CaseChat Overview and Summary

In the case of R v MB, the appellant faced charges relating to accessing child pornography material via a carriage service. The case was heard in the relevant Australian court. The central issue before the court was to determine the appropriate sentence for the appellant, considering the severity and nature of the offences committed.

The legal issues the court was required to decide included the appropriate weight to be given to the appellant’s guilty plea, the circumstances surrounding the commission of the offences, and the need to ensure the sentence reflected the seriousness of the crimes. The court had to consider both aggravating and mitigating factors in its sentencing decision, including the appellant's personal circumstances and the impact of the offences on the community.

The court found that while the appellant's guilty plea was a mitigating factor, the nature of the offences was of paramount importance. The court concluded that the offences were serious and warranted a significant custodial sentence. The judge emphasised the importance of deterring such behaviour and protecting children from the harm associated with child pornography. After considering the totality of the circumstances, the court imposed a sentence that reflected both the seriousness of the offences and the mitigating factors present in the case.

The final orders of the court, detailed from [31] to [33], outline the specific custodial sentence imposed on the appellant, as well as any other relevant conditions or orders associated with the sentence.

Orders

Orders of the court

See [31]–[33]

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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