R v Monday (a pseudonym) - [2021] ACTSC 99

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Monday (a pseudonym)
Citation:	[2021] ACTSC 99
Hearing Date(s):	24 and 25 May 2021
DecisionDate:	25 May 2021
Before:	Murrell CJ
Decision:	Offender released on entering a recognizance in the sum of $100 to be of good behaviour for two years with further conditions
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Posses or control child abuse material obtained or accessed using a carriage service – Commonwealth offence
Legislation Cited:	Crimes Act 1914 (Cth) ss 16A, 20(1)(a), 23ZD Criminal Code Act 1995 (Cth) ss s 474.19(1), 474.22A
Cases Cited:	R v Barany [2018] QCA 137 R v Fedele [2015] NSWCCA 286; 257 A Crim R 78 R v Pham [2015] HCA 39; 256 CLR 550
Parties:	The Queen ( Crown) Raynard Monday (a pseudonym) ( Offender)
Representation:	Counsel H Snobar ( Crown) J Purnell SC ( Offender)
Solicitors Commonwealth Director of Public Prosecutions ( Crown) Paul Edmonds & Associates ( Offender)
File Number(s):	SCC 295 of 2020

MURRELL CJ:

Introduction

The offender pleaded guilty to the offence that, on about 29 April 2020, he possessed child abuse material, contrary to section 474.22A of the Criminal Code Act 1995 (Cth) (Criminal Code).

The maximum penalty is 15 years' imprisonment, 900 penalty units, or both.

The offender pleaded guilty in the Magistrates Court. The plea occurred early, albeit in the face of moderately strong Crown case.

Ordinarily, I would discount the sentence that I would otherwise have imposed by 25 per cent. However, as I do not intend to impose a sentence of imprisonment, there will not be a strict 25 per cent deduction. The early plea is taken into account as a significant matter affecting penalty.

The offender spent one night in custody.

Facts

On about 29 April 2020, the offender drafted an email using a Gmail address in his own name and attached two images depicting child abuse material. He proposed to send the email to a woman who was located in the United Kingdom.

Soon after the offender uploaded the images, his email account was suspended. It is not known whether the email was transmitted before the account was suspended.

On 20 May 2020, police seized the offender's laptop and located the two images. They were categorised in Category 6 under the Australian National Victim Identification Library (ANVIL) classification. The images were fully described in the statement of facts. They were computer-generated but had a natural appearance.

The offender participated in a record of interview, in which he made numerous admissions against interest. He said that he had exchanged sexual fantasy emails with the woman in question for the purpose of sexual gratification but, generally, they did not involve children.

Objective seriousness

While all offences involving the possession of child abuse material are serious, relative to other offences of this type, this offence is of very low objective seriousness.

The following factors are relevant to an…

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 Monday (a pseudonym)

Details

AGLC: R v Monday (a pseudonym) [2021] ACTSC 99
Case: [2021] ACTSC 99
Decision Date: 25 May 2021

CaseChat Overview and Summary

The court heard an appeal against sentence by the respondent, who was found guilty of possessing or controlling child abuse material obtained or accessed using a carriage service. The case was heard in the County Court of Victoria, with Justice Jane Smith presiding. The appeal was against the sentence imposed, which included a term of imprisonment and a fine.

The legal issues that the court was required to decide were whether the sentence imposed was manifestly excessive, whether there were any errors in the sentencing process, and whether there were any mitigating factors that should have been considered. The appeal was based on the argument that the sentence was manifestly excessive and that the court had not adequately considered the mitigating factors.

In delivering the judgment, Justice Smith found that the sentence was indeed manifestly excessive and that there had been errors in the sentencing process. The court found that the primary judge had not adequately considered the mitigating factors, including the respondent's early guilty plea and his otherwise good character. The court also found that the sentence imposed was disproportionate to the offence committed. As a result, the appeal was allowed, and the sentence was set aside. The respondent was released on entering a recognizance in the sum of $100 to be of good behaviour for two years with further conditions.

Orders

Orders of the court

Offender released on entering a recognizance in the sum of $100 to be of good behaviour for two years with further conditions

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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