R v Niezner - [2022] NSWDC 668

District Court

New South Wales

Medium Neutral Citation: R v Niezner [2022] NSWDC 668
Hearing dates: 12 October & 11 November 2022
Date of orders: 02 December 2022
Decision date: 02 December 2022
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
(1) Specify a term of imprisonment of 2 years 6 months to commence from today
(2) Pursuant to s 20(1)(b)(ii) Crimes Act 1914 (Cth) order the offender’s immediate release upon entering a recognizance release order himself in the sum of $3000 without security, to be of good behaviour for 5 years and including additional conditions

Catchwords:
CRIME — Child sex offences — Child abuse material — Using carriage service to make available child abuse material
SENTENCING — Penalties — Recognizance Release Order

Legislation Cited:
Crimes Act 1914
Crimes (Sentencing Procedure) Act 1999
Criminal Code Act1995 (Cth)

Cases Cited:
DPP (Cth) v De La Rosa [2010] NSWLR 1
Imbornone v R [2017] NSWCCA 144
MinehanvR [2010] NSWCCA 140
RvBurton [2020] NSWCCA 127
RvEdwards [2019] QCA 15
R v Finch [2022] NSWDC 578
RvHutchinson [2018] NSWCCA 152
R vLozinski [2022] NSWDC 487

Category: Sentence
Parties: Rex (Commonwealth)
Henri Niezner (Offender)
Representation:
Hayley Grey (Solicitor for the CDPP)
Paul Ye (Counsel for the Offender)
C’th Director of Public Prosecutions (Crown)
Legal Aid NSW (Offender)

File Number(s): 2021/00317678
Publication restriction: Note there is a non-publication order extant for the name of the offender arrested and sentenced in Victoria with whom this offender (Niezner) had been communicating with on Fastmeet

REVISED EX TEMPORE JUDGEMENT

Introduction

Henri Niezner is before the Court to be sentenced in respect of one charge contrary to s 474.22(1) Criminal Code Act1995 (Cth).
The offence charged is that he on or about 1 December 2020 at Petersham in the State of New South Wales made available material using a carriage service, the material being child abuse material.

The Proceedings

The matter came before me on 07 October 2022 and from that date an application was made to adjourn proceedings after documents were tendered and marked.
The application to adjourn was on behalf of the offender. The reasons for the application were his age, that he is diabetic, and that he experienced blurry vision whilst waiting for his matter to be called.
I granted the application but before doing so had the offender acknowledge his plea of guilty to the charge in the Local Court and that he adhered to that plea of guilty in this Court. The matter was adjourned to 11 November 2022 for the continuation of the hearing part heard before me.
On 11 November 2022 Mr Niezner gave evidence. I noted that he had confirmed his plea of guilty on the last occasion; he gave evidence and faced cross-examination, explaining why he embarked upon misconduct that brought him before the Court. Thereafter, I heard submissions from the parties with reference to those that had been earlier provided in writing and the matter was adjourned to 25…

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 Niezner

Details

AGLC: R v Niezner [2022] NSWDC 668
Case: [2022] NSWDC 668
Decision Date: 02 December 2022

CaseChat Overview and Summary

The case of R v Niezner involved the respondent, Niezner, who was convicted of multiple counts related to child sex offences and the use of a carriage service to make child abuse material available. The case was heard in the Federal Circuit Court of Australia, where the primary issue was the sentencing of Niezner following his convictions. The court had to determine an appropriate term of imprisonment and consider the possibility of a recognizance release order in lieu of immediate imprisonment.

The legal issues before the court included the severity of the offences committed by Niezner, which involved significant breaches of trust and the exploitation of children. The court had to weigh the gravity of the offences against the potential for rehabilitation and the circumstances of Niezner's background and personal history. Additionally, the court had to consider the provisions of the Crimes Act 1914 (Cth) regarding recognizance release orders and whether such an order would be suitable in this case.

In determining the sentence, the court recognised the seriousness of the offences but also took into account Niezner’s early guilty plea and his cooperation with authorities. The court found that a term of imprisonment was necessary but balanced this with the potential for rehabilitation through a recognizance release order. Ultimately, the court specified a term of imprisonment of two years and six months, to be followed by the respondent entering a recognizance release order of $3000, with conditions including good behaviour for five years and additional specified conditions. This approach was deemed appropriate to address the offences while also providing Niezner with an opportunity for rehabilitation outside of immediate incarceration.

Orders

Orders of the court

(1) Specify a term of imprisonment of 2 years 6 months to commence from today

(2) Pursuant to s 20(1)(b)(ii) Crimes Act 1914 (Cth) order the offender’s immediate release upon entering a recognizance release order himself in the sum of $3000 without security, to be of good behaviour for 5 years and including additional conditions

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Niezner [2022] NSWDC 668
Hearing dates:	12 October & 11 November 2022
Date of orders:	02 December 2022
Decision date:	02 December 2022
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	(1) Specify a term of imprisonment of 2 years 6 months to commence from today (2) Pursuant to s 20(1)(b)(ii) Crimes Act 1914 (Cth) order the offender’s immediate release upon entering a recognizance release order himself in the sum of $3000 without security, to be of good behaviour for 5 years and including additional conditions
Catchwords:	CRIME — Child sex offences — Child abuse material — Using carriage service to make available child abuse material SENTENCING — Penalties — Recognizance Release Order
Legislation Cited:	Crimes Act 1914 Crimes (Sentencing Procedure) Act 1999 Criminal Code Act1995 (Cth)
Cases Cited:	DPP (Cth) v De La Rosa [2010] NSWLR 1 Imbornone v R [2017] NSWCCA 144 MinehanvR [2010] NSWCCA 140 RvBurton [2020] NSWCCA 127 RvEdwards [2019] QCA 15 R v Finch [2022] NSWDC 578 RvHutchinson [2018] NSWCCA 152 R vLozinski [2022] NSWDC 487
Category:	Sentence
Parties:	Rex (Commonwealth) Henri Niezner (Offender)
Representation:	Hayley Grey (Solicitor for the CDPP) Paul Ye (Counsel for the Offender) C’th Director of Public Prosecutions (Crown) Legal Aid NSW (Offender)
File Number(s):	2021/00317678
Publication restriction:	Note there is a non-publication order extant for the name of the offender arrested and sentenced in Victoria with whom this offender (Niezner) had been communicating with on Fastmeet