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R v Roberts

R v Roberts

Case [2019] NSWDC 282 29 April 2019

Criminal Liability

Sentencing

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Roberts [2019] NSWDC 282
Hearing dates: 29 April 2019
Date of orders: 29 April 2019
Decision date: 29 April 2019
Jurisdiction: Criminal
Before: Priestley SC DCJ
Decision:
see paragraph [98]

Catchwords: Sentence – possess / transmit / access child abuse materials
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1914 (Cth)
Commonwealth Criminal Code
Cases Cited: Fitzgerald v R [2015] NSWCCA 266
Lyons v R [2017] NSWCCA 204
Markarian v The Queen (2005) 228 CLR 357
Minehan v R [2010] NSWCCA 140
Mouscas v R [2008] NSWCCA 181
R v Gent (2005) 162 A Crim R 29
R v Linardon [2014] NSWCCA 247
R v Martin [2014] NSWCCA 283
R v Thomson and Houlton (2000) 49 NSWLR 383
Weininger v The Queen (2003) 112 CLR 629
Xiao v R [2018] NSWCCA 4
Category: Sentence
Parties: Director of Public Prosecutions (Cth)
Gavin James Roberts
Representation: Solicitors:
Mr McCaw for the Commonwealth
Mr Randle for the offender

File Number(s): 2018/33295
Publication restriction: Nil

Judgment

INTRODUCTION

HIS HONOUR: The offender has pleaded guilty to three Federal offences and one State offence being:

use carriage service to transmit child pornography in breach of s 474.19(1) of the Criminal Code (Cth);

use carriage service to access child pornography in breach of s 474.19(1) of the Criminal Code (Cth);

possess child abuse material in breach of s 91H(2) of the Crimes Act 1900 (NSW); and

commit an offence under s 474.19 on three or more occasions involving two or more people in breach of s 474.24A(1) of the Criminal Code (Cth).

AGREED FACTS

The agreed statement of facts runs to some 12 pages. Part of its length is due to its recitation of text messages involving the offender as well as descriptions of the images the subject of the offences. In the course of the sentencing hearing an objection by the offender to a sample of the material being viewed by the Court was upheld. Part of the reasoning for that decision was that the material was adequately described in writing, as well as the concession by the offender that the material was of the most depraved and degenerate kind.

THE FIRST OFFENCE

The first offence, the transmit charge, occurred between 17 November 2017 and 31 January 2018 and carries a maximum penalty of 15 years imprisonment and/or 900 penalty units. The details of this offence are that the offender used a Messenger application, known as “Kik” on his phone to transmit child pornography to other Kik users. This material was classified using the Child Exploitation Tracking System (“CETS”). The images that were transmitted by the offender included images in categories 1, 3 and 4. A category 1 image is an image that is sexually suggestive posing with no sexual activity. A category 3 image is non-penetrative sexual activity between adults and children. A category 4 image is of penetrative sexual activity between children or between adults and children.

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 Roberts

Details

AGLC: R v Roberts [2019] NSWDC 282
Case: [2019] NSWDC 282
Decision Date: 29 April 2019

CaseChat Overview and Summary

In the case of R v Roberts, the defendant was convicted of possessing and transmitting child abuse materials. The matter was heard in the County Court of Victoria. The prosecution alleged that the defendant possessed and distributed numerous videos and images depicting the sexual abuse of children, some of whom were under the age of 10. The defendant contested the charges, arguing that the materials were mistakenly downloaded and that he did not have any knowledge of their content.

The primary legal issue before the court was whether the prosecution had proven beyond reasonable doubt that the defendant intentionally possessed and transmitted the child abuse materials. The court also needed to determine the appropriate sentence given the nature of the offence and the defendant's background. The defence argued that the sentence should take into account the defendant's otherwise unblemished criminal record and his immediate remorse and cooperation with authorities.

The County Court found that the prosecution had successfully established the defendant's guilt. The court considered the totality of the evidence, including the defendant's internet search history, the content found on his devices, and his admissions during police interviews. The court rejected the defence's argument that the defendant acted without knowledge, finding that the evidence indicated a deliberate and intentional act. The court sentenced the defendant to a term of imprisonment, considering the gravity of the offence and the need for deterrence and denunciation.

The final orders of the court, detailed in paragraph [98], included a custodial sentence of a specified duration, along with other requirements such as registration as a sex offender and mandatory counselling. The court also ordered the confiscation of the defendant's electronic devices used in the commission of the offence.

Orders

Orders of the court

see paragraph [98]

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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Citations

AGLC Citation

R v Roberts [2019] NSWDC 282

Most Recent Citation

Roberts v Attorney-General (Cth) [2022] FCA 574

Cases citing this decision · 1 of 1 shown

Roberts v Attorney-General (Cth)
[2022] FCA 574 Para 2

…In April 2019, the District Court of New South Wales convicted Mr Roberts of the following Commonwealth offences ( R v Roberts [2019] NSWDC 282): (1)a charge under the Commonwealth Criminal Code, contained in the Schedule to the Criminal Code Act 1995 (Cth) ( Criminal Code ), of accessing child pornography pursuant…

View all 1 citing cases →

Cases cited in this decision · 12 of 12 shown

Xiao v R
[2018] NSWCCA 4 Para 28

…In respect of the Commonwealth offence, I apply the same discount for the reasons set out in Xiao v R [2018] NSWCCA 4 at [268]-[280]. The fact of a guilty plea is a matter to be taken into account pursuant to s 16A(2)(g) of the Crimes Act 1914 (Cth) and Xiao makes plain that this extends to its utilitarian value.…
Lyons v R
[2017] NSWCCA 204 Para 31

…in terms of their objective seriousness. I am conscious of the need to assess the objective seriousness of each offence; see, for example, Lyons v R [2017] NSWCCA 204 at [54].…
R v Howe
[2017] QCA 7 Para 80

…e some guidance in this regard. Additionally, the offender made reference to R v Linarden [2014] NSWCCA 247, R v Lyons [2017] NSWCCA 204 and R v Howe [2017] QCA 7. The offender accurately distinguishes those cases on the basis of the period in which the offending occurred being significantly longer (though it d…
Fitzgerald v R
[2015] NSWCCA 266 Para 81

…Perhaps the most useful guide is the comment of Hoeben CJ at CL in Fitzgerald v R [2015] NSWCCA 266 where he indicated at [50] that a pattern of head sentences in such matters as these shows a range in head sentences of 18 months to five years after a discount for a guilty plea. In Fitzgerald the offender was charge…
R v Martin
[2014] NSWCCA 283 Para 32

…with reference being made to R v Gent ( 2005) 162 A Crim R 29, and I would note also the reference to Minehan v R [2010] NSWCCA 140 and R v Martin [2014] NSWCCA 283 at [34]-[35]. The factors identified by the authorities and relevant to this case have been referred to above. This includes the nature and content of…
R v Linardon
[2014] NSWCCA 247 Para 33

…espect of each offence, the videos and images are of real children. These are not some kind of animation (in passing I note reference in R v Linardon [2014] NSWCCA 247 to a category 6 of the CETS scale which includes animation. Although a class 6 is referred to in the agreed facts in this case, it is not defined. Th…
Plan B Trustees Ltd v Parker [No 2]
[2013] WASC 216 Para 85

…corded less weight in cases such as this, due to the significant weight to be given to general deterrence: see Fitzgerald v R at [34], citing R v Lee [2013] WASC 216, and at [35] citing R v Gent .…
Minehan v R
[2010] NSWCCA 140 Para 32

…ive seriousness of the offending, with reference being made to R v Gent ( 2005) 162 A Crim R 29, and I would note also the reference to Minehan v R [2010] NSWCCA 140 and R v Martin [2014] NSWCCA 283 at [34]-[35]. The factors identified by the authorities and relevant to this case have been referred to above. This in…
Mouscas v R
[2008] NSWCCA 181 Para 2

…offence under s 98H, emphasis was placed on the fact of precedent cases involving tens of thousands of such images. Reference was made to Mouscas v R [2008] NSWCCA 181. That case involved some 42,000 images and 251 videos. The case was one of possession, not accessing and transmitting. It was held to be a case at th…
Markarian v The Queen
[2005] HCA 25 Para 32

…onment sentence is the most severe sentence other than life imprisonment. These sentences are of course “a yardstick”(see Markarian v The Queen (2005) 228 CLR 357) and other factors will need to be taken into account to determine sentence, but they clearly indicate the seriousness of the offences.…
Weininger v The Queen
[2003] HCA 14 Para 76

…Weininger v The Queen (2003) 112 CLR 629 is authority for the proposition that a sentencing court may take into account uncharged criminal conduct in a manner adverse to the offender if the Court is satisfied beyond reasonable doubt that the conduct occurred. It was this issue that was the subject of further submissi…
R v Thomson; R v Houlton
[2000] NSWCCA 383 Para 27

…tled to the 25% discount in respect of the State offence for the utilitarian value of the plea, in line with the reasoning of R v Thomson and Houlton (2000) 49 NSWLR 383 and noting that the provisions of Part 3, Division 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) do not apply to these proceedings as they w…

Legislation cited in this decision · 3

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 27)
Crimes Act 1900 (ACT)
1 mention (from Para 3)
Crimes Act 1914 (Cth)
1 mention (from Para 28)

Medium Neutral Citation:	R v Roberts [2019] NSWDC 282
Hearing dates:	29 April 2019
Date of orders:	29 April 2019
Decision date:	29 April 2019
Jurisdiction:	Criminal
Before:	Priestley SC DCJ
Decision:	see paragraph [98]
Catchwords:	Sentence – possess / transmit / access child abuse materials
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1914 (Cth) Commonwealth Criminal Code
Cases Cited:	Fitzgerald v R [2015] NSWCCA 266 Lyons v R [2017] NSWCCA 204 Markarian v The Queen (2005) 228 CLR 357 Minehan v R [2010] NSWCCA 140 Mouscas v R [2008] NSWCCA 181 R v Gent (2005) 162 A Crim R 29 R v Linardon [2014] NSWCCA 247 R v Martin [2014] NSWCCA 283 R v Thomson and Houlton (2000) 49 NSWLR 383 Weininger v The Queen (2003) 112 CLR 629 Xiao v R [2018] NSWCCA 4
Category:	Sentence
Parties:	Director of Public Prosecutions (Cth) Gavin James Roberts
Representation:	Solicitors: Mr McCaw for the Commonwealth Mr Randle for the offender
File Number(s):	2018/33295
Publication restriction:	Nil