R v Pilsbury - [2022] NSWDC 484

District Court

New South Wales

Medium Neutral Citation: R v Pilsbury [2022] NSWDC 484
Hearing dates: 01 April 2022; 21 April 2022
Date of orders: 21 April 2022
Decision date: 21 April 2022
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Sentenced to a term of imprisonment of 1 year 10 months. To be released forthwith upon entering a recognizance pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth). See orders [33]

Catchwords:
CRIME – using a carriage service to transmit indecent communications to a child under the age of 16
SENTENCING - Relevant factors on sentence –impact on children of internet offences considered - offending on one night - a relationship of trust with the child victim was broken - early guilty plea- aberrant behaviour – offender otherwise has no convictions - drug use - steps toward rehabilitation - impact of delay - is full time custody required?

Legislation Cited:
Criminal Code Act 1995 (Cth)
Crimes Act 1914 (Cth)

Cases Cited:
Adamson v R (2015) 47 VR 268
Director of Public Prosecutions (Cth) v Watson [2016] VSCA 73
Kannis v R [2020] NSWCCA 79
Magnuson v R [2013] NSWCCA 50
R v Asplund [2010] NSWCCA 316;
R v Cattell [2019] NSWCCA 297
R v McCall [2022] NSWDC 78
R v Tector [2008] NSWCCA 15
R v Todd [1982] 2 NSWLR 517
R v Tuala [2015] NSWCCA 8
Small v R [2020] NSWCCA 216
Stanton v R [2021] NSWCCA 123
The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550
Xiao v R [2018] NSWCCA 4

Texts Cited:
Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (2017) Vol 3

Category: Sentence
Parties: Micah John Pilsbury (the offender)
Director of Public Prosecutions (Commonwealth)
Representation:
Counsel:
Mr S Schaudin (for the offender)
Solicitors:
Toomey Defence Lawyers (for the offender)
Mr J Inan (for Commonwealth Director of Public Prosecutions)

File Number(s): 2021/00130175

SENTENCE – EX TEMPORE REVISED

When he was before the Local Court Micah John Pilsbury said he would plead guilty to an offence pursuant to s 474.27A(1)1 of the Criminal Code Act 1995 (Cth). The offence related to his using a carriage service to transmit indecent communications to a child under the age of 16. Those communications included material that was indecent. The offence occurred on the evening of 27 December into the morning of 28 December 2013. The offence carried a maximum penalty of seven years imprisonment.

Agreed facts

There are agreed facts before the Court.
At the time of the offending the complainant in the matter was 15 years old. Her mother and the offender had previously been in a relationship. They had maintained contact and she considered him to be her stepfather.
On 27 December 2013 there was an initial message and then, into the next morning, a spate of messages sent to the complainant using Facebook Messenger. There were 30 messages in all. They had as attachments 37 images of adult pornography, including close-ups and photographs of oral sex.
The…

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 Pilsbury

Details

AGLC: R v Pilsbury [2022] NSWDC 484
Case: [2022] NSWDC 484
Decision Date: 21 April 2022

CaseChat Overview and Summary

In the case of R v Pilsbury, the defendant was charged with using a carriage service to transmit indecent communications to a child under the age of 16. The matter was heard in the Supreme Court of Queensland. The dispute centred around the appropriate sentence for Pilsbury, considering the impact of his actions on the child, his early guilty plea, and his steps toward rehabilitation.

The court was tasked with determining the appropriate sentence for Pilsbury, taking into account the impact of his actions on the child, his early guilty plea, and the steps he had taken toward rehabilitation. The court also had to consider whether full-time custody was necessary given the circumstances of the case.

In reaching its decision, the court acknowledged the severity of the offence, which involved a breach of trust with the child victim. However, the court also considered the mitigating factors, including Pilsbury's early guilty plea, his otherwise clean criminal record, his steps toward rehabilitation, and his drug use. The court found that a custodial sentence was necessary but that full-time custody was not required. Instead, the court sentenced Pilsbury to a term of imprisonment of 1 year and 10 months, with the condition that he be released forthwith upon entering a recognizance. This decision was based on the court's belief that the sentence would provide an appropriate balance between punishment and rehabilitation.

The court's final orders included a sentence of 1 year and 10 months imprisonment for Pilsbury, with the condition that he be released forthwith upon entering a recognizance. The court's decision balanced the need for punishment with the mitigating factors present in the case.

Orders

Orders of the court

Sentenced to a term of imprisonment of 1 year 10 months. To be released forthwith upon entering a recognizance pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth). See orders [33]

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 Pilsbury [2022] NSWDC 484
Hearing dates:	01 April 2022; 21 April 2022
Date of orders:	21 April 2022
Decision date:	21 April 2022
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Sentenced to a term of imprisonment of 1 year 10 months. To be released forthwith upon entering a recognizance pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth). See orders [33]
Catchwords:	CRIME – using a carriage service to transmit indecent communications to a child under the age of 16 SENTENCING - Relevant factors on sentence –impact on children of internet offences considered - offending on one night - a relationship of trust with the child victim was broken - early guilty plea- aberrant behaviour – offender otherwise has no convictions - drug use - steps toward rehabilitation - impact of delay - is full time custody required?
Legislation Cited:	Criminal Code Act 1995 (Cth) Crimes Act 1914 (Cth)
Cases Cited:	Adamson v R (2015) 47 VR 268 Director of Public Prosecutions (Cth) v Watson [2016] VSCA 73 Kannis v R [2020] NSWCCA 79 Magnuson v R [2013] NSWCCA 50 R v Asplund [2010] NSWCCA 316; R v Cattell [2019] NSWCCA 297 R v McCall [2022] NSWDC 78 R v Tector [2008] NSWCCA 15 R v Todd [1982] 2 NSWLR 517 R v Tuala [2015] NSWCCA 8 Small v R [2020] NSWCCA 216 Stanton v R [2021] NSWCCA 123 The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550 Xiao v R [2018] NSWCCA 4
Texts Cited:	Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (2017) Vol 3
Category:	Sentence
Parties:	Micah John Pilsbury (the offender) Director of Public Prosecutions (Commonwealth)
Representation:	Counsel: Mr S Schaudin (for the offender) Solicitors: Toomey Defence Lawyers (for the offender) Mr J Inan (for Commonwealth Director of Public Prosecutions)
File Number(s):	2021/00130175