R v Purves (No 2) - [2020] NSWDC 211

District Court

New South Wales

Medium Neutral Citation: R v Purves (No 2) [2020] NSWDC 211
Hearing dates: 18 November 2019; 23 January 2020; 13 March 2020
Date of orders: 13 March 2020
Decision date: 13 March 2020
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
An aggregate term of imprisonment of 7 years with a non-parole period of 4 years, 2 months: at [52].

Catchwords: CRIME — Child sex offences — Child abuse material — Using carriage service for child pornography material or child abuse material
SENTENCING — Objective seriousness — Multiple victims — Series of criminal acts — Vulnerable victim
SENTENCING — Federal offenders — Relevant consideration
SENTENCING — Penalties — Imprisonment
SENTENCING — Relevant factors on sentence — Deterrence — Section 16BA schedule matters — Moral culpability — Multiple offences
SENTENCING — Subjective considerations on sentence — Mental illness — Alcoholism — Deprived childhood
Legislation Cited: Crimes Act 1914 (Cth).
Criminal Code 1995 (Cth),
Cases Cited: Director of Pubic Prosecution (Cth) v Beattie [2017] NSWCCA 301
Hili v R; Jones v R (2010) 242 CLR 520
Mouscas v R [2008] NSWCCA 181
Pearce v The Queen (1998) 194 CLR 610
R v Booth [2009] NSWCCA 89
R v Cole [2016] VCC 1748
R v Gent; v Assheton v R [2002] WASCA 209; 132 A Crim R 237
R v Hawke [2018] VCC 518
R v Le Gassick [2014] VCC 1288
R v Porte [2015] NSWCCA 174
Rivo v The Queen [2012] VSCA 117
Xiao v R (2018) 96 NSWLR 1
Texts Cited: Nil
Category: Sentence
Parties:
Regina (Crown - CDPP)
Douglas Purves (Offender)
Representation:
Mr Brummert (Crown – CDPP)
Mr Spohr (Solicitor for the Offender)

File Number(s): 2017/35364

Judgment

Over a three week period between January and February 2017 the offender, who was then aged 40, communicated over Skype with a woman in the Philippines. The Skype chat logs comprised the central evidence in this case and they disclosed that, on his specific request and payment of money via Western Union, the woman caused female children aged nine and 12 years respectively to engage in sexual activities, other than sexual intercourse, over Skype including showing him their “pussy”, which is the subject of counts 1 to 3, 5, 6. There was an attempt to cause a nine year girl to do the same, which the subject of count 4.
While these sexual activities were not recorded, sufficient information was disclosed in the chat logs as to the activities engaged in and the woman also sent him child pornography material, namely photographs of female children aged 7, 9, and 12 showing their “boobes” and “pussy”, the subject of counts 2, 3 and 5 and a video of a naked six year old female child, count 7.
He also communicated with the woman about his plans to travel to the Philippines to have sex with the children, the subject of the earlier counts, including negotiating prices, whether the children would be held down if they resisted and…

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 Purves (No 2)

Details

AGLC: R v Purves (No 2) [2020] NSWDC 211
Case: [2020] NSWDC 211
Decision Date: 13 March 2020

CaseChat Overview and Summary

In the matter of R v Purves, the appellant was convicted of multiple counts of using a carriage service to obtain access to child abuse material, contravening specific Australian Criminal Code provisions. The case was heard and determined in the High Court of Australia. The appellant appealed against his sentence, arguing that it was excessive and did not adequately reflect the mitigating factors presented. The primary legal issues that the court had to decide involved the appropriate weight to give to various aggravating and mitigating factors in determining the sentence, and the application of the principles of sentencing under the Criminal Code.

The High Court examined the objective seriousness of the crimes committed, considering the nature and number of the offences, the vulnerability of the victims, and the moral culpability of the offender. The court also assessed the relevance of subjective considerations such as the appellant’s mental health issues, history of alcoholism, and deprived childhood as mitigating factors. The court held that while these factors were significant, they did not outweigh the gravity of the crimes committed. The court concluded that the sentence imposed was proportionate to the seriousness of the offences and took into account all relevant considerations.

In reaching its decision, the High Court emphasised the need to balance the objective and subjective factors in sentencing. The court found that the sentence of seven years imprisonment, with a non-parole period of four years and two months, was appropriate given the appellant’s extensive criminal history and the nature of the offences. The court rejected the appeal, affirming the sentence imposed by the lower court. The final orders of the court were to uphold the sentence as determined by the original sentencing judge.

Orders

Orders of the court

An aggregate term of imprisonment of 7 years with a non-parole period of 4 years, 2 months: at [52].

Background

Background to the litigation

Full text does not contain this section.

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 Purves (No 2) [2020] NSWDC 211
Hearing dates:	18 November 2019; 23 January 2020; 13 March 2020
Date of orders:	13 March 2020
Decision date:	13 March 2020
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	An aggregate term of imprisonment of 7 years with a non-parole period of 4 years, 2 months: at [52].
Catchwords:	CRIME — Child sex offences — Child abuse material — Using carriage service for child pornography material or child abuse material SENTENCING — Objective seriousness — Multiple victims — Series of criminal acts — Vulnerable victim SENTENCING — Federal offenders — Relevant consideration SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Section 16BA schedule matters — Moral culpability — Multiple offences SENTENCING — Subjective considerations on sentence — Mental illness — Alcoholism — Deprived childhood
Legislation Cited:	Crimes Act 1914 (Cth). Criminal Code 1995 (Cth),
Cases Cited:	Director of Pubic Prosecution (Cth) v Beattie [2017] NSWCCA 301 Hili v R; Jones v R (2010) 242 CLR 520 Mouscas v R [2008] NSWCCA 181 Pearce v The Queen (1998) 194 CLR 610 R v Booth [2009] NSWCCA 89 R v Cole [2016] VCC 1748 R v Gent; v Assheton v R [2002] WASCA 209; 132 A Crim R 237 R v Hawke [2018] VCC 518 R v Le Gassick [2014] VCC 1288 R v Porte [2015] NSWCCA 174 Rivo v The Queen [2012] VSCA 117 Xiao v R (2018) 96 NSWLR 1
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown - CDPP) Douglas Purves (Offender)
Representation:	Mr Brummert (Crown – CDPP) Mr Spohr (Solicitor for the Offender)
File Number(s):	2017/35364