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R v Middleton

R v Middleton

Case [2023] ACTSC 50 17 March 2023

Exceptional Circumstances

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Middleton
Citation:	[2023] ACTSC 50
Hearing Date(s):	23 August 2022; 28 February 2023
Decision Date:	17 March 2023
Before:	Loukas-Karlsson J
Decision:	See [209]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – possess child abuse material – use a carriage service to access child abuse material – presumption of period of actual imprisonment – expert evidence – diagnosis of Autism Spectrum Disorder – whether there is a causal link – where offender has
undertaken extensive psychological intervention to address
offending behaviour – exceptional circumstances
Legislation Cited:	Crimes Act 1914 (Cth), pt 1B, ss 3LA, 16A, 16BA 17A, 19, 20, 23ZD
Crimes Legislation Amendment (Sexual Crimes Against Children
and Community Protection Measures) Act 2020 (Cth) Crimes (Sentence Administration) Act 2005 (ACT), s 42 Criminal Code Act 1995 (Cth), ss 473.1, 474.22, 474.23 Penalties and Sentences Act 1992 (Qld)
Cases Cited:	Alvares v The Queen [2011] NSWCCA 33; 209 A Crim R 297 Burton v R [2020] NSWCCA 127 Butters v The Queen [2010] NSWCCA 1 Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 4 Clarke-Jeffries v R [2019] NSWCCA 56 Cluett v The Queen [2019] WASCA 111; 279 A Crim R 57 Commonwealth Director of Public Prosecutions v CCC [2021] QCA 4 DPP (Cth) v Garside [2016] VSCA 74; 50 VR 800 Director of Public Prosecutions (Cth) v Barnes [2023] VCC 147
DPP v D’Alessandro [2010] VSCA 60
Director of Public Prosecutions v Dalgliesh (a pseudonym)
[2017] HCA 41; 262 CLR 428 DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 DDP v Smith [2010] VSCA 215 Director of Public Prosecutions v Latham [2009] TASSC 101 Farache v The Queen [2011] NSWCCA 33; 209 A Crim R 297 Fusimalohi v The Queen [2012] ACTCA 49 Hili v the Queen [2010] HCA 45; 242 CLR 520 Hogan v Hinch [2011] HCA 4; 243 CLR 506 KT v R [2008] NSWCCA 51; 182 A Crim R 571 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mertell v The King [2022] ACTCA 69 Mill v The Queen (1988) 166 CLR 59
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Mun v The Queen [2015] NSWCCA 234 Munda v Western Australia [2013] HCA 38; 249 CLR 600
O’Brien v The Queen [2015] ACTCA 47
Pearce v The Queen [1998] HCA 57; 194 CLR 610 Postiglione v The Queen (1997) 189 CLR 295 The Queen v Kilic [2016] HCA 48; 259 CLR 256 R v Armstrong [2020] ACTSC 298 R v Arthur [2017] ACTSC 23 R v BM (Unreported, Supreme Court of the ACT, Refshauge J, 29 October 2012) R v Arnould [2020] ACTSC 345 R v Burch [2020] ACTSC 192 R v Coker [2021] NSWDC 805 R v De Leeuw [2015] NSWCCA 183 R v Dregmans [2022] NSWDC 55 R v Duncan

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 Middleton

Details

AGLC: R v Middleton [2023] ACTSC 50
Case: [2023] ACTSC 50
Decision Date

CaseChat Overview and Summary

This case concerns the sentencing of Christopher Alex Middleton for offences related to the possession and use of child abuse material. The offences were committed under s 474.22 and s 474.23 of the Criminal Code Act 1995 (Cth). The case involved complex issues surrounding the offender's mental health, specifically a diagnosis of Autism Spectrum Disorder (ASD), and the potential causal relationship between this condition and his offending behaviour. The court had to determine whether the statutory presumption of actual imprisonment for these offences could be rebutted on the basis of 'exceptional circumstances'. The court found that the combination of factors, including the offender's ASD, the causal relationship between his condition and the offending, and his low risk of reoffending, amounted to exceptional circumstances.

The court considered various factors in reaching its decision. The objective seriousness of the offences was significant due to the nature and quantity of the child abuse material, and the depravity of the content. The offender had 220 video files of child abuse material, depicting very young children, with 51 percent of the files showing prepubescent child victims. The subjective circumstances highlighted the offender's social isolation, lack of meaningful relationships, and the impact of his ASD on his offending behaviour. Psychological reports indicated that the offender's ASD contributed to his vulnerability to engaging in such behaviour, and that he was at a low risk of reoffending if provided with appropriate treatment and support.

The court balanced these factors against the statutory presumption of imprisonment for these offences, considering the mitigating factors in combination. The court concluded that the exceptional circumstances in this case warranted the imposition of a sentence by way of an Intensive Correction Order (ICO) rather than immediate imprisonment. The ICO included specific conditions to address the offender's offending behaviour, such as restrictions on internet access and requirements for psychological treatment. The court also ordered the forfeiture of the offender's electronic devices used in the commission of the offences.

Orders