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R v Porter (No 3)

R v Porter (No 3)

Case [2022] ACTSC 236 1 September 2022

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Porter (No 3)
Citation:	[2022] ACTSC 236
Hearing Date:	26 May 2022
Submissions last received:	28 July 2022
DecisionDate:	1 September 2022
Before:	Loukas-Karlsson J
Decision:	See [318]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – historic child sexual offences – use of child to produce child exploitation material – engage in relationship with child under special care – engage in conduct with intention of making it more likely the young person would engage in sexual activity – possess child exploitation material – approach to objections to portions of victim impact statements – consideration of Verdins principles and paedophilic disorder – where disorder increases need for specific deterrence – appropriate discount for plea of guilty where disputed facts hearing required – whether additional discount for assistance in administration of justice warranted
Legislation Cited:	Crimes Act 1900 (ACT) ss 56, 64, 65, 66 Crimes Act 1914 (Cth) s 3E Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 33, 34A, 35, 35A, 47, 51, 53, pt 4.4 Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 74 Sentencing Act 1991 (Vic) s 8K
Cases Cited:	Alvares v R [2011] NSWCCA 33; 209 A Crim R 297 Barrett v The Queen [2016] ACTCA 38 Blundell v The Queen [2019] ACTCA 34 Butters v R [2010] NSWCCA 1 Cavanagh v R [2009] NSWCCA 174 Clarkson v The Queen [2011] VSCA 157; 32 VR 361 Coggan v The Queen [2013] ACTCA 49 Cooke (a pseudonym) v The Queen [2022] ACTCA 44 CX v The Queen [2017] ACTCA 37 Dawson v The Queen [2019] ACTCA 9 Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 Donaczy v R [2010] NSWCCA 143 DPP (Cth) v Beattie [2017] NSWCCA 301; 270 A Crim R 556 DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 DPP (Vic) v Steels (1987) 24 A Crim R 201 DPP v DDJ [2009] VSCA 115; 22 VR 444 Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1 Fenner v R [2022] NSWCCA 48 Fusimalohi v The Queen [2012] ACTCA 49 Gore v R; Hunter v R [2010] NSWCCA 330; 208 A Crim R 353 Hampton v R [2010] NSWCCA 278; 208 A Crim R 478 Henry v The Queen [2019] ACTCA 5 Higgins v The Queen [2022] ACTCA 26 Hili v the Queen [2010] HCA 45; 242 CLR 520 Imbornone v R [2017] NSWCCA 144 Kite v R [2009] NSWCCA 12 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Millard v The Queen [2016] ACTCA 14 Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Mun v R [2015] NSWCCA 234 Murray v IA [2020] ACTSC 288 Ngata v 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 Porter (No 3)

Details

AGLC: R v Porter (No 3) [2022] ACTSC 236
Case: [2022] ACTSC 236
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, Porter pled guilty to multiple offences including use of a child under 12 years of age to produce child exploitation material, engage in a sexual relationship with a child under special care, engage in conduct with a young person with the intention of making it more likely that the young person would commit or take part in an act of a sexual nature, and possess child exploitation material. Porter also requested that an additional offence be taken into account in sentencing for Count 1. Porter was sentenced to 13 years and 6 months imprisonment for Count 2, 3 years and 4 months imprisonment for Count 1, 3 years imprisonment for Count 3, and 2 years imprisonment for Count 4. Porter was sentenced to a non-parole period of 12 years and 6 months. Porter's sentence will be backdated to commence on 18 November 2021.

Orders