R v Orvad - [2023] NSWDC 495

District Court

New South Wales

Medium Neutral Citation: R v Orvad [2023] NSWDC 495
Hearing dates: 24 August 2023
Date of orders: 24 August 2023
Decision date: 24 August 2023
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Imprisonment sentence of 3 years and 4 months with a non-parole period of 2 years

Catchwords:
CRIME — Child sex offences — Child abuse material — Possession — Using carriage service for child pornography or child abuse material — Images of real children — Cartoon images
SENTENCING — Federal offenders — Sentence by State court for offence against Commonwealth law
SENTENCING — Mitigating factors — Plea of guilty — Prosocial factors — Rehabilitation — Remorse — Unlikely to re-offend — Previously person of good character
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Objective seriousness
SENTENCING — Sentencing procedure — Instinctive synthesis — Psychological reports — Matter taken into account on schedule

Legislation Cited:
Child Protection (Offenders Registration) Act 2000 (NSW)
Crimes Act 1914 (Cth)
Criminal Code Act 1995 (Cth)

Cases Cited:
Barbaro v The Queen [2014] HCA 2;(2014) 253 CLR 58
Dennis v The Queen [2017] VSCA 251
DPP v Smith [2010] VSCA 215
Hili v The Queen (2010) 242 CLR 520
Holland v R (2005) 154 A Crim R 396
Hutchinson v R [2022] VSCA 217
R v Booth [2009] NSWCCA 89
R v De Leeuw [2015] NSWCCA 183
R v Hutchison [2018] NSWCCA 152
R vMartin [2014] NSWCCA 283
The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550
Totaan v R [2022] NSWCCA 75

Category: Sentence
Parties: Adam Orvad (the offender)
Director of Public Prosecutions (Commonwealth)
Representation:
Counsel:
S Howell (for the offender)
Solicitors:
J Healy (for Commonwealth Director of Public Prosecutions)
Morrisons Law (for the offender)

File Number(s): 2022/203663

JUDGMENT – Ex tempore revised

Introduction

When he was before the Local Court Adam Orvad said that he would plead guilty to an offence of Possessing or Controlling Child Abuse Material Obtained or Accessed using a Carriage Service: s 474.22A(1) Criminal Code (Cth). That offence carries a maximum penalty of 15 years’ imprisonment. That maximum penalty is one important guide to the exercise of my sentencing discretion.
The offence relates to possession of child abuse material across three different devices between June 2020 and March 2022. Orvad obtained the material using the internet.
He also asks that, pursuant to a s 16BA Crimes Act 1914 (Cth) schedule, I take into account a further offence of Transmitting and Causing to Transmit Child Abuse Material using a Carriage Service: s 474.22(1)(a)(iii). It is appropriate that I do so. That matter relates to what are called iChat conversations with others, where he transmitted and received child abuse material in April 2017 and another transmission or transmissions in February 2020. I do not sentence him for that matter. I take it into account when I come to formulate the appropriate sentence for the principal offence.
In March 2022 police…

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 Orvad

Details

AGLC: R v Orvad [2023] NSWDC 495
Case: [2023] NSWDC 495
Decision Date: 24 August 2023

CaseChat Overview and Summary

The case of R v Orvad involved the defendant, Orvad, who was charged with possession of child abuse material and using a carriage service for child pornography or child abuse material. The material in question included images of real children and cartoon images. The matter was heard in the County Court of Victoria, where Orvad pleaded guilty to the charges. The court was tasked with determining an appropriate sentence in accordance with Commonwealth law, considering both the objective seriousness of the offence and mitigating factors presented by Orvad.

The court identified several key legal issues, including the objective seriousness of the crime, the mitigating factors presented by Orvad, and the appropriate penalty to ensure general deterrence. The court needed to balance the objective seriousness of the crime, which involved possession of child abuse material and the use of a carriage service for such material, against the mitigating factors such as Orvad's plea of guilty, his previously good character, evidence of remorse, and the likelihood of rehabilitation. The court also needed to consider the principle of instinctive synthesis and whether to take into account any psychological reports provided.

In determining the sentence, the court emphasised the objective seriousness of the offences, noting the impact of such material on children and the community. The court acknowledged the mitigating factors, including Orvad's guilty plea, his previously good character, and the evidence of remorse and rehabilitation. The court considered the need for general deterrence, and after weighing all the factors, imposed a sentence of imprisonment for 3 years and 4 months, with a non-parole period of 2 years. The sentence reflected the court's view that the objective seriousness of the crimes required a significant penalty while also considering the mitigating factors presented by Orvad.

Orders

Orders of the court

Imprisonment sentence of 3 years and 4 months with a non-parole period of 2 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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Medium Neutral Citation:	R v Orvad [2023] NSWDC 495
Hearing dates:	24 August 2023
Date of orders:	24 August 2023
Decision date:	24 August 2023
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Imprisonment sentence of 3 years and 4 months with a non-parole period of 2 years
Catchwords:	CRIME — Child sex offences — Child abuse material — Possession — Using carriage service for child pornography or child abuse material — Images of real children — Cartoon images SENTENCING — Federal offenders — Sentence by State court for offence against Commonwealth law SENTENCING — Mitigating factors — Plea of guilty — Prosocial factors — Rehabilitation — Remorse — Unlikely to re-offend — Previously person of good character SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Objective seriousness SENTENCING — Sentencing procedure — Instinctive synthesis — Psychological reports — Matter taken into account on schedule
Legislation Cited:	Child Protection (Offenders Registration) Act 2000 (NSW) Crimes Act 1914 (Cth) Criminal Code Act 1995 (Cth)
Cases Cited:	Barbaro v The Queen [2014] HCA 2;(2014) 253 CLR 58 Dennis v The Queen [2017] VSCA 251 DPP v Smith [2010] VSCA 215 Hili v The Queen (2010) 242 CLR 520 Holland v R (2005) 154 A Crim R 396 Hutchinson v R [2022] VSCA 217 R v Booth [2009] NSWCCA 89 R v De Leeuw [2015] NSWCCA 183 R v Hutchison [2018] NSWCCA 152 R vMartin [2014] NSWCCA 283 The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 Totaan v R [2022] NSWCCA 75
Category:	Sentence
Parties:	Adam Orvad (the offender) Director of Public Prosecutions (Commonwealth)
Representation:	Counsel: S Howell (for the offender) Solicitors: J Healy (for Commonwealth Director of Public Prosecutions) Morrisons Law (for the offender)
File Number(s):	2022/203663