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: | |
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…
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- R v Monday (a pseudonym) [2021] ACTSC 99
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- [2021] ACTSC 99
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CaseChat Overview and Summary
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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