R v McKeag - [2018] NSWDC 523

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v McKeag [2018] NSWDC 523
Hearing dates: 10 December 2018
Date of orders: 10 December 2018
Decision date: 10 December 2018
Jurisdiction: Criminal
Before: Judge W Hunt
Decision:
Convicted. Sentenced to imprisonment for a period of 2 years and immediately released upon entering into a recognizance without security , in the sum of $500 for a period of 3 years

Catchwords: CRIMINAL LAW - Sentence – Use carriage service to send indecent material – Vulnerable victim
Legislation Cited: Commonwealth Criminal Code,
Commonwealth Crimes Act.
Cases Cited: R v Asplund Asplund v R [2010] NSWCCA 316
Elliot and Harris No 2 (1976) 13 SASR 516,
R v Nalos [2013] NSWCCA 90.
Category: Sentence
Parties: The Crown
Robert McKeag
Representation:
Counsel:
C Brain – The Crown
S Shaudin – The Offender
Solicitors:
Director of Public Prosecutions (Cth)– The Crown

File Number(s): 2017/159162
Publication restriction: There is to be no publication of the name of the complainant or of any material which may tend to identify the complainant

Judgment

HIS HONOUR: Robert McKeag is before the Court for sentence in relation to one offence which is in breach of s 474.27A(1) of the Commonwealth Criminal Code, which is an offence of using a carriage service to send indecent material to a person less than 16 years of age. That matter has a maximum penalty of seven years. I have regard to the maximum penalty as a guidepost and for purposes of comparison between this case and the worst possible case. There is no matter before the Court on a schedule to s 16B(a) of the Commonwealth Crimes Act.
I am obliged to sentence Mr McKeag in accordance with Pt 1(b) of the Commonwealth Crimes Act. The governing principle of the sentencing exercise is set out at s 16A(1) which is, the Court must impose a sentence that is, "of a severity appropriate in all the circumstances of the offence". I am obliged to take into account to the extent relevant the matters that are listed in s 16A(2) and I am obliged to have regard to the restraint imposed by s 17A. For the purpose of s 16A(1) and (2)(a) in relation to the maximum penalty and the need to ensure adequate punishment; the seriousness of this class of offence is reflected by the maximum penalty of seven years. I have regard to that penalty as a yardstick for the appropriate sentence when I balance all the other relevant factors. I also have regard to the legislative objective of suppressing online transmission of indecent material to those who are under the age of 16 years.
In terms of the nature and circumstance of the offence for purposes of s 16A(2)(a) I do not intend to recite all of the agreed facts which are set out in the 13 page document as part of Crown bundle which is exhibit A. The following short details are drawn from that…

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 McKeag

Details

AGLC: R v McKeag [2018] NSWDC 523
Case: [2018] NSWDC 523
Decision Date: 10 December 2018

CaseChat Overview and Summary

In the Supreme Court of Queensland, the respondent McKeag was charged with using a carriage service to send indecent material to a vulnerable victim. The court was tasked with determining the appropriate sentence for McKeag's criminal actions. The primary legal issues before the court were the severity of the crime, the level of harm caused to the victim, and the appropriate sentencing principles to apply.

The court considered the gravity of McKeag's actions, which involved using a digital platform to send indecent material to a vulnerable individual. The court noted that the victim was in a position of vulnerability, which exacerbated the harm caused by the respondent's actions. The court also examined relevant sentencing principles and precedents to ensure that the sentence was proportionate to the offence. In determining the sentence, the court weighed the need for general deterrence against the possibility of rehabilitation for McKeag.

The court found that the severity of the crime warranted a custodial sentence, but also recognised McKeag's potential for rehabilitation and the lack of any prior criminal history. The court ultimately sentenced McKeag to imprisonment for a period of two years. However, due to the respondent's immediate acceptance of responsibility and the lack of any prior criminal history, the court decided to release McKeag immediately upon entering into a recognizance without security, in the sum of $500 for a period of three years. The court also ordered that McKeag comply with any additional conditions imposed by the court.

Orders

Orders of the court

Convicted. Sentenced to imprisonment for a period of 2 years and immediately released upon entering into a recognizance without security , in the sum of $500 for a period of 3 years

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 McKeag [2018] NSWDC 523
Hearing dates:	10 December 2018
Date of orders:	10 December 2018
Decision date:	10 December 2018
Jurisdiction:	Criminal
Before:	Judge W Hunt
Decision:	Convicted. Sentenced to imprisonment for a period of 2 years and immediately released upon entering into a recognizance without security , in the sum of $500 for a period of 3 years
Catchwords:	CRIMINAL LAW - Sentence – Use carriage service to send indecent material – Vulnerable victim
Legislation Cited:	Commonwealth Criminal Code, Commonwealth Crimes Act.
Cases Cited:	R v Asplund Asplund v R [2010] NSWCCA 316 Elliot and Harris No 2 (1976) 13 SASR 516, R v Nalos [2013] NSWCCA 90.
Category:	Sentence
Parties:	The Crown Robert McKeag
Representation:	Counsel: C Brain – The Crown S Shaudin – The Offender Solicitors: Director of Public Prosecutions (Cth)– The Crown
File Number(s):	2017/159162
Publication restriction:	There is to be no publication of the name of the complainant or of any material which may tend to identify the complainant