R v RJ - [2014] ACTSC 226

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v RJ
Citation:	[2014] ACTSC 226
Hearing Date:	25 August 2014
DecisionDate:	29 August 2014
Before:	Penfold J
Decision:	See [49] to [57] below
Category:	Sentence
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – offender to be sentenced for offences of production and possession of child pornography and using a carriage service to access, transmit and solicit child pornography - production involved offender’s then six-year-old daughter – offender otherwise of good character – offender displayed little remorse – total sentence of four years and 10 months imprisonment – ACT non-parole period of two years and 10 months – Commonwealth sentences subject to recognizance release order at end of ACT non-parole period.
Legislation Cited:	Crimes Act 1914 (Cth), s 23ZD Criminal Code 1995 (Cth), s 474.19 Crimes Act 1900 (ACT), ss 64(1), 65 Crimes (Sentencing) Act 2005 (ACT), s 37
Cases Cited:	R v Dummett [2013] ACTSC, Burns J, 30 October 2013 R v BJW (2000) 112 A Crim R 1 Doushav R [2008] NSWCCA 263 Hutchins v The State of Western Australia [2006] WASCA 258 R v Kanawaza [2013] ACTSC, Murrell CJ, 2 December 2013 Minehan v R [2010] NSWCCA 140 R v Morosi [2013] ACTSC, Burns J, 28 August 2013 R v TW [2011] ACTCA 25
Parties:	The Queen (Crown) RJ (Offender)
Representation:	Counsel Mr A Webb (Crown) Mr S Gill (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Capon & Hubert Lawyers and Mediators (Offender)
File Numbers:	SCC 18 of 2014; SCC 19 of 2014
Publication Restriction:	Identifying information (including offender’s and victim’s names)

RJ has pleaded guilty to one charge of using a child for the production of child pornography, one charge of possessing child pornography, and three charges of using a carriage service in relation to child pornography material.

The first two offences arise under ss 64(1) and 65 of the Crimes Act 1900 (ACT), and the other three under s 474.19 of the Commonwealth Criminal Code 1995. All except the possession offence carry maximum penalties including 15 years imprisonment, while the possession offence carries a maximum penalty including seven years imprisonment.

Before describing the individual offences, it is necessary to explain briefly the scheme that has been used for the purpose of classifying the child pornography to which the various offences apply. The scheme uses a scale known as CETS (Child Exploitation Tracking System), which recognises six different kinds of child pornography, five by reference to their subject matter and the sixth by reference to the nature of the descriptions, as follows:

Category 1: sexually suggestive posing with no sexual activity.
Category 2: non-penetrative sexual activity between children or solo masturbation by a child.
Category 3: non-penetrative sexual activity between adult(s) and child(ren).
Category 4: penetrative sexual activity between children or adult(s) and child(ren).
Category 5: sadism, humiliation or bestiality.
Category 6: animated or virtual depictions of children engaged in activity covered by Categories 1 to 5.

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 RJ

Details

AGLC: R v RJ [2014] ACTSC 226
Case: [2014] ACTSC 226
Decision Date: 29 August 2014

CaseChat Overview and Summary

The matter before the court was an appeal against sentence by RJ, who had been found guilty of producing and possessing child pornography, as well as using a carriage service to access, transmit and solicit child pornography. The offences involved RJ's then six-year-old daughter and were committed over a period of several months. The case was heard in the Supreme Court of the Australian Capital Territory.

The primary legal issue for the court to determine was the appropriate sentence for RJ, given the nature and seriousness of the offences, along with the offender's background and personal circumstances. The court was required to balance the need to protect the community and deter similar offending, with the principles of proportionality and rehabilitation, in light of RJ's otherwise good character and limited remorse.

In considering the appropriate sentence, the court first noted the severity of the offences, which involved the sexual exploitation of a young child. The court acknowledged the offender's lack of remorse and the need to send a strong message of denunciation. However, the court also took into account RJ's otherwise good character, lack of prior criminal history, and the fact that the offences were committed over a period of time, rather than being a single isolated incident. Ultimately, the court determined that a sentence of four years and 10 months imprisonment was appropriate, with a non-parole period of two years and 10 months, subject to a recognizance release order at the end of the non-parole period.

The court's final orders, set out in paragraphs [49] to [57], confirm the sentence imposed, along with other related orders regarding RJ's supervision and rehabilitation, and the forfeiture of certain electronic devices and materials.

Orders

Orders of the court

See [49] to [57] below

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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