R v Roberts

Case [2019] NSWDC 282


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

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

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

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

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

  4. 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

  1. 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

  1. 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.

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

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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