R v Ramsay-Feeney - [2022] ACTSC 82

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Ramsay-Feeney
Citation:	[2022] ACTSC 82
Hearing Date(s):	20 April 2022
DecisionDate:	20 April 2022
Before:	Elkaim J
Decision:	See [29]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage for child abuse material – where previous conviction for child abuse offence – where subject offending breach of Intensive Corrections Order
Legislation Cited:	Crimes Act 1914 (Cth) ss 16AAB, 19AB, 19AC Criminal Code Act 1995 (Cth) s 474.22
Cases Cited:	Aboud v R [2017] NSWCCA 140 R v Ramsay-Feeney [2021] ACTSC 5
Parties:	The Queen ( Crown) P J Ramsay-Feeney ( Offender)
Representation:	Counsel D Jordan ( Crown) E Chen ( Offender)
Solicitors Commonwealth Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender)
File Number(s):	SCC 9 of 2022

Elkaim J

On 20 January 2022, the offender pleaded guilty to the offence of using a carriage service for child abuse material contrary to s 474.22 of the Criminal Code Act 1995 (Cth). The maximum penalty for that offence is 15 years’ imprisonment. In addition s 16AAB(2) of the Crimes Act 1914 (Cth) says that because the offender has an earlier conviction for a child sexual abuse offence, there is a minimum sentence of four years imprisonment.

The offender is also to be sentenced for breach of an Intensive Corrections Order (ICO) made on 20 January 2021. That order was imposed by Burns J (see R v Ramsay-Feeney [2021] ACTSC 5).

The current offending relates to the accessing of 148 images of child abuse of which 95 per cent depicted animated or cartoon subjects. This is to be contrasted to the facts before Burns J where the accused was found to be in possession of 5370 images many of which were in categories depicting actual sexual activity. Clearly the offending confronting Burns J was significantly more serious than that now before me.

Both parties agree that the present matter is at the lower end of the range of objective seriousness. This assessment seems to be mostly based on the fact that very few of the child abuse images depict actual persons. Consequently there was limited harm to living children.

I viewed a sample of the images, two of which depicted actual children. Suffice to say that even the ‘non-live’ images depict scenes which totally contradict any normal description of childhood and offend the moral senses of any reasonable person.

Burns J recognised that a sentence of imprisonment was inevitable. Reading his judgment I have the impression that full-time custody would have been imposed but for the subjective circumstances which emerged. A lot of these circumstances were set out in a report of Dr Clout, a clinical psychologist.

Burns J was particularly concerned to address the mental health conditions that the doctor identified and which required redress. At [26] Burns J said:

I note that Dr Clout in her report concluded that you are suffering from symptoms consistent with…

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 Ramsay-Feeney

Details

AGLC: R v Ramsay-Feeney [2022] ACTSC 82
Case: [2022] ACTSC 82
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the case of R v Ramsay-Feeney involved the offender who pleaded guilty to using a carriage service for child abuse material, with a mandatory minimum sentence of four years due to a prior conviction for a similar offence. The offender was also to be sentenced for breaching an Intensive Corrections Order (ICO) imposed by another judge. The current offence involved accessing 148 images of child abuse material, with 95 per cent depicting animated or cartoon subjects. The offender had previously been found in possession of a significantly larger number of images depicting actual sexual activity, leading to the conclusion that the present offence was at the lower end of the range of objective seriousness.

The legal issues included determining the appropriate discount for the plea of guilty, whether additional discount should be applied for assistance to the police, and the consequences of breaching the ICO. The court considered the subjective circumstances of the offender, including mental health conditions, childhood experiences, and family relationships. The court also assessed the objective seriousness of the current offence, noting the limited harm to living children due to the majority of the images not depicting actual persons.

The court reasoned that a 25 per cent discount for the plea of guilty was appropriate, and while the offender's provision of a phone passcode to the police was commendable, it did not justify a further discount. The court disagreed with the offender's submission that no further action should be taken for the breach of the ICO, deciding instead to impose the original nine months' imprisonment without the benefit of the ICO. For the current charge, the court imposed a sentence of three years, reduced by 25 per cent, and decided that the sentences should run concurrently to allow the offender to be released on a recognizance, facilitating supervision and rehabilitation.

The final orders included the re-sentencing of the offender to imprisonment for nine months for the breach of the ICO, a sentence of three years for the current charge, and conditions for release on recognizance, including supervision by a probation officer and participation in rehabilitation programs. Certain items were also forfeited to the Commonwealth.

Orders