R v Phoumthipphavong - [2021] ACTSC 97

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Phoumthipphavong
Citation:	[2021] ACTSC 97
Hearing Date:	24 May 2021
Decision Date:	24 May 2021
Before:	Burns J
Decision:	See [20]–[22]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – possess child exploitation material – plea of guilty – whether
underlying condition of ADHD influenced commission of the
offence – consideration of offender’s young age at time of offence and at time of first accessing child abuse material – good prospects of rehabilitation – limited prospects of
re-offending in circumstances of this case
Legislation Cited:	Crimes Act 1900 (ACT) ss 64(5), 65
Parties:	The Queen (Crown) Dion Leck Phoumthipphavong (Offender)
Representation:	Counsel
S Jerome (Crown) J Purnell SC (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown) Aulich Law (Offender)
File Number:	SCC 293 of 2020
BURNS J:

1. Dion Phoumthipphavong, you have entered a plea of guilty to one charge of possession of child exploitation material contrary to s 65 of the Crimes Act 1900 (ACT) (Crimes Act) (CC 3520/2020). The maximum penalty for that offence is seven years' imprisonment, or 700 penalty units, or both.
2. You entered your plea of guilty at an early opportunity, being on the third mention date in the ACT Magistrates Court but after a plea of not guilty and the provision of a Brief of Evidence. Nevertheless, I am satisfied that your plea of guilty has significant utilitarian value and also is indicative of remorse. I propose to treat the matter as an early plea of guilty and to reduce the otherwise appropriate sentence by 25 per cent in order to reflect your plea of guilty.

The facts

3. A full Statement of Facts has been tendered without objection. I do not propose to recite the Statement of Facts. It is sufficient to note that on 15 November 2018, police received information which suggested that you had been uploading Child Abuse Material. For some reason, it was not until 28 January 2020 that a search warrant was issued and on 30 January 2020, the search warrant was executed at your home address. During the execution of that search warrant, police located a Samsung Galaxy S8 mobile phone. You told police that it was your mobile phone and you provided them with the necessary information to enable the police to access the contents of the mobile phone. That, of course, is a matter which is in your favour, in that you co-operated with police in the investigation of this offence.
4. You were also subject to a Record of Interview in which you made very substantial admissions to your involvement in this offence. It is of some significance that you told police that you were 14 years of age when you first accessed underage sexual abuse material. You told police that the mobile phone was the mechanism by which you obtained access to the material and I note that subsequently, the police conducted a forensic examination of…

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.

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Details

AGLC: R v Phoumthipphavong [2021] ACTSC 97
Case: [2021] ACTSC 97
Decision Date

CaseChat Overview and Summary

Dion Phoumthipphavong, the defendant, was charged with possessing child exploitation material under section 65 of the Crimes Act 1900 (ACT). He pleaded guilty, leading the court to reduce the penalty by 25% for the early plea. The court found that the defendant had accessed and possessed 43 files of child exploitation material, including images and videos depicting underage children in sexual acts. The court accepted that the defendant's underlying condition of ADHD, which was moderately severe, had some influence on his impulsivity, but rejected the argument that it causally connected to his offending behaviour.

The court had to determine the appropriate penalty, taking into account the defendant's moral culpability, objective seriousness of the offence, and subjective circumstances. The court accepted that the defendant's condition of ADHD had some influence on his impulsivity and the commission of the offence, but rejected the argument that it causally connected to his offending behaviour. The court also considered the defendant's age at the time of the offence, his prospects of rehabilitation, and his willingness to participate in programs and counselling directed towards his rehabilitation.

The court decided that the defendant's offending was serious, but the requirements of sentencing did not call for a term of full-time imprisonment. The court accepted that general deterrence and denunciation of the offending were significant factors in determining appropriate sentences for this type of offending, but that each case must depend upon its own circumstances. The court sentenced the defendant to 12 months' imprisonment, reduced from 16 months for the early plea, to be served by way of an Intensive Correction Order. The court considered that the defendant's prospects of rehabilitation were good, and that there were limited prospects of him re-offending in the circumstances of this case.

Orders