R v Monaghan - [2014] ACTSC 278

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Monaghan
Citation:	[2014] ACTSC 278
Hearing Date(s):	19 September 2014
DecisionDate:	19 September 2014
Before:	Murrell CJ
Decision:	Effective sentence of 4 years and 6 months, suspended after 3 years.
Category:	Sentence
Catchwords:	CRIMINAL LAW – Sentence – guilty plea – possession of child pornography – use a carriage service to access child pornography – use a child aged over 12 for the production of child pornography – use a child aged under 12 for the production of child pornography – Commonwealth and ACT matters
Legislation Cited:	Crimes (Sentencing Act) 2005 (ACT) ss 7, 12, 33, 35 Crimes Act 1914 (Cth) ss 16A, 19, 23ZD
Cases Cited:	Fasciale v The Queen (2010) 30 VR 643 Minehan v The Queen (2010) 201 A Crim R 243 R v Cooper [2012] ACTCA 9 R v Gent (2005) 162 A Crim R 29 R v TW (2011) 6 ACTLR 18
Parties:	The Queen (Crown) Edward Francis Monaghan (Offender)
Representation:	Counsel Mr A Williamson (Crown) Mr R Davies (Offender)
Solicitors Director of Public Prosecutions (ACT) (Crown) Legal Aid ACT (Offender)
File Number(s):	SCC 20 of 2014; SCC 21 of 2014

MURRELL CJ:

Introduction

The offender adheres to pleas of guilty entered at an early stage. The offences and associated maximum available penalties are as follows:

1.Between 25 June 2006 and the 12 November 2006, use a child under 12 for the production of child pornography. Maximum penalty of 15 years’ imprisonment.
2.Between 24 December 2008 and 12 April 2010, use a carriage service to access child pornography. Maximum penalty of 10 years’ imprisonment.
3.Between 23 April 2010 and 23 September 2013, use a carriage service to access child pornography on at least 100 occasions. Maximum penalty of 15 years’ imprisonment.
4.Between 24 December 2008 and 6 July 2011, intentionally possess child pornography. Maximum penalty of 5 years’ imprisonment.
5.Between 9 March 2012 and 17 September 2013, use a child aged over 12 for the production of child pornography. Maximum penalty of 10 years’ imprisonment.
6.Between 7 July 2011 and 27 September 2013, possess child pornography. Maximum penalty of 7 years’ imprisonment.

The appropriate discount in respect of count 1 is 15 to 20 per cent as the plea of guilty was entered shortly after committal for trial. In relation to the remaining counts, the pleas of guilty were entered at an early stage in the Magistrates Court, although perhaps not at the earliest possible stage. The appropriate discount is 20 to 25 per cent.

The offender has been in custody since his arrest on the 25 September 2013 and the sentences will date from that time.

The facts are set out in full in Exhibit 1. I will summarise them briefly.

Count 1

Count 1 is the offence of using a child, O, for the production of child pornography. From 2003, the offender worked as a drug and alcohol worker at the Canberra Institute of Technology, assisting and counselling boys suffering from…

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 Monaghan

Details

AGLC: R v Monaghan [2014] ACTSC 278
Case: [2014] ACTSC 278
Decision Date: 19 September 2014

CaseChat Overview and Summary

The accused, Monaghan, was charged with multiple counts of possession of child pornography, using a carriage service to access child pornography, and using a child aged under 12 for the production of child pornography. The case was heard in the Supreme Court of the Australian Capital Territory. Monaghan pleaded guilty to all charges. The court was required to determine an appropriate sentence for Monaghan's crimes, taking into account the aggravating and mitigating factors present in the case.

The court considered several factors in determining the appropriate sentence. Aggravating factors included the severity of the crimes, the number of victims, and the accused's previous criminal history. Mitigating factors included the accused's guilty plea, his genuine remorse, and the absence of any significant risk of reoffending. The court also considered the impact of the sentence on the victims and the community. The court determined that an effective sentence of 4 years and 6 months was appropriate, with the sentence to be suspended after 3 years. This decision reflected the seriousness of the crimes, while also taking into account the mitigating factors present in the case.

The court's reasoning and outcome in this case highlight the importance of considering both aggravating and mitigating factors when determining an appropriate sentence for serious crimes. The court recognised the severity of Monaghan's crimes and the impact they had on the victims and the community. However, the court also recognised the mitigating factors present in the case, such as the accused's guilty plea and genuine remorse. The decision to suspend the sentence after 3 years reflects the court's belief that Monaghan is unlikely to reoffend and that a suspended sentence will allow him to reintegrate into the community and make amends for his crimes.

The final orders of the court were that Monaghan be sentenced to an effective term of 4 years and 6 months imprisonment, with the sentence suspended after 3 years. Monaghan was also required to comply with a number of other conditions, including a non-association order and a requirement to participate in a rehabilitation program. The court's decision in this case sends a strong message about the seriousness of crimes involving child pornography and the need for appropriate punishment and rehabilitation.

Orders

Orders of the court

Effective sentence of 4 years and 6 months, suspended after 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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