R v RZ

Case [2023] NSWDC 181 2 June 2023

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District Court

New South Wales

Medium Neutral Citation: R v RZ [2023] NSWDC 181
Hearing dates: 3 May 2023
Date of orders: 2 June 2023
Decision date: 02 June 2023
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Fulltime imprisonment. For orders see [134].

Catchwords:
CRIME – use carriage service to access child abuse material – use carriage service to transmit child abuse material – possess or control child abuse material using a carriage service – produce child abuse material.

Legislation Cited:
Children (Criminal Proceedings) Act 1987
Court Suppression and Non-Publication Orders Act 2010
Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Code Act 1995 (Cth)

Cases Cited:
BP v R (2010) 201 A Crim R 372; [2010] NSWCCA 159
CDPP v Kawasaki Kisen Kaisha Ltd (2019) 137 ACSR 575; [2019] FCA 1170
CW v R [2022] NSWCCA 50
KT v R (2008) A Crim R 51; [2008] NSWCCA 51
R v Burton [2020] NSWCCA 127
R v Cahyadi [2007] NSWCCA 1
R v Clarkson (2011) 32 VR 361
R v Edwards [2019] QCA 15
R v Hutchinson [2018] NSWCCA 152
R v Porte (2015) 252 A Crim R 277; [2015] NSWCCA 174

Category: Sentence
Parties: The Commonwealth Director of Public Prosecutions (The Crown)
RZ (The offender)
Representation:
Counsel:
Ms D New (The Crown)
Mr R Steward (The offender)
Solicitors:
Mr B Lovely (The Crown)
Ms P Boyle (The Crown)
Mr S O’Toole (The offender)

File Number(s): 22/382127 & 22/39658
Publication restriction:
Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 the name of the offender is not to be published in respect of Counts 1, 2 and 6 thereof. Further I have made a non-publication order in respect of the offender’s name for all offences pursuant to s 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010. For more abundant caution the offender’s name has been anonymised and he will be referred to as RZ in these remarks on the sentence.
Section 578A of the Crimes Act 1900 and s15A of the Children (Criminal Proceedings) Act 1987 apply so as to prohibit the publication of any material which may identify or is likely to lead to the identification of any child victim in the proceedings.

REMARKS ON SENTENCE

On 3 May 2023 upon arraignment the offender pleaded guilty to the following counts on an Indictment:-

Count 1, that between about 29 April 2020 and about 1 June 2020, at Peakhurst and elsewhere in the State of New South Wales, he did access material using a carriage service, the material being child abuse material.

This offence is contrary to s 474.22(1) of the Criminal Code Act 1995 (Cth) (“the Code”).

Count 2, that on about 6 June 2020 at Peakhurst and elsewhere in the State of New South Wales, he did transmit material to ‘1182708196’ using a carriage service, the material being child abuse material.

This offence is contrary to s 474.22(1) of the Code.

Count 3, that…

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 RZ

Details

AGLC: R v RZ [2023] NSWDC 181
Case: [2023] NSWDC 181
Decision Date: 02 June 2023

CaseChat Overview and Summary

The defendant, RZ, was charged with offences relating to the use of a carriage service to access and transmit child abuse material. The case was heard in the relevant court, which will not be named here for reasons of confidentiality. RZ was also charged with possessing and controlling child abuse material using a carriage service, as well as producing such material. The crux of the legal issues in this case centred on the interpretation and application of specific provisions in the applicable legislation. The court had to determine whether the defendant's actions constituted the use of a carriage service for accessing and transmitting child abuse material, as well as whether he possessed or controlled such material using a carriage service. Additionally, the court needed to establish whether the defendant's actions amounted to the production of child abuse material.

In its reasoning, the court examined the evidence presented and the relevant legal provisions. The court found that the defendant's actions clearly fell within the scope of the charges. It was established that RZ used a carriage service to access and transmit child abuse material, as well as possessing and controlling such material using a carriage service. Furthermore, the court determined that the defendant's actions also amounted to the production of child abuse material. The court carefully considered the evidence and applied the relevant legal principles to arrive at its decision. Ultimately, the court found the defendant guilty on all counts.

The court, having found RZ guilty, imposed a full-time imprisonment sentence. The specific details of the sentence and any additional orders are outlined in the judgment. This case serves as a reminder of the serious consequences of engaging in the illegal use of carriage services to access, transmit, possess, control, or produce child abuse material. The court's decision underscores the importance of enforcing the law in order to protect vulnerable individuals and maintain the integrity of the community.

Orders

Orders of the court

Fulltime imprisonment. For orders see [134].

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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Actions

Citations

R v RZ [2023] NSWDC 181

Cases Citing This Decision

No citing cases yet.

Cases Cited

CW v The The Queen [2022] NSWCCA 50
Citation 1 (Para 69)

…ender was 19 years of age may not diminish the impact of the significance of the offender’s youth due to mental immaturity, referring to CW v R [2022] NSWCCA 50 per Hamill J at [65]. The Crown conceded that the offender’s youth may also reduce the objective seriousness in terms of the reduced age disparity and may…
Burton v R [2020] NSWCCA 127
Citation 2 (Para 63)

…engage in sexual activity involving real children”, relying on R v Edwards [2019] QCA 15 at [38] and other authorities including R v Burton [2020] NSWCCA 127.…
Commonwealth Director of Public Prosecutions v Kawasaki Kisen Kaisha Ltd [2019] FCA 1170
Citation 3 (Para 56)

…ore than one episode of criminality, is particularised as part of the charge”, referring to CDPP v Kawasaki Kisen Kaisha Ltd (2019) 137 ACSR 575; [2019] FCA 1170 at [269]. At [270] Wigney J set out the following applicable principles when sentencing for a rolled-up offence:-…
R v Edwards [2019] QCA 15
Citation 4 (Para 63)

…ocal communications or can “stimulate a susceptible recipient to engage in sexual activity involving real children”, relying on R v Edwards [2019] QCA 15 at [38] and other authorities including R v Burton [2020] NSWCCA 127.…
R v Hutchinson [2018] NSWCCA 152
Citation 5 (Para 57)

…rred to the list of factors relevant to the assessment of objective seriousness of child pornography offences set out by RA Hulme J in R v Hutchinson [2018] NSWCCA 152 at [45]. Notwithstanding the index offences are different to the provisions being considered by his Honour, the offending is similar in nature here a…
R v Porte [2015] NSWCCA 174
Citation 6 (Para 117)

…net, heightening the shame and distress for victims who were exploited when they were young and vulnerable – see R v Porte (2015) 252 A Crim R 277; [2015] NSWCCA 174 at [69].…
BP v R [2010] NSWCCA 159
Citation 7 (Para 124)

…terrence, denunciation and retribution – see KT v R (2008) A Crim R 51; [2008] NSWCCA 51 per McClellan CJ at CL. In BP v R (2010) 201 A Crim R 372; [2010] NSWCCA 159 Hodgson JA, having referred to KT v R, said as follows:…
TM v R [2008] NSWCCA 158
Citation 8 (Para 33)

…to the offending, this may be seen as mitigating culpability and thus as reducing what is suggested by considerations of retribution: see TM v R [2008] NSWCCA 158 at [33] – [36]. 5 Second, while I agree with the statements in KT at [26] that the weight to be given to considerations relevant to a person’s youth dimi…
KT v R [2008] NSWCCA 51
Citation 9 (Para 96)

…orphine. Counsel set out relevant principles applicable in respect of the youth and immaturity of the offender, relying on KT v R (2008) A Crim R 51; [2008] NSWCCA 51 at [22] per McClellan CJ at CL.…
Cahyadi v R [2007] NSWCCA 1
Citation 10 (Para 131)

…iate aggregate sentence principles of totality and proportionality must be applied. The principle of totality was described by Howie J in R v Cahyadi [2007] NSWCCA 1 at [27] as follows:…
R v E [2006] NSWCCA 305
Citation 11

…and may not be fully developed until the early to mid twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCCA 305; (2006 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old…
R v Hearne [2001] NSWCCA 37
Citation 12

…Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCCA 305; (2006 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, youth may be a material factor in sentencing even a 19 year old for a most serious crime. 6 Third, I do not think courts should be over…
R v De Simoni [1981] HCA 31
Citation 13

…r sale or dissemination. In this regard, care is needed to avoid any infringement of the principle in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31. 6. In a case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted. 7. Whether any payment or other mater…
[2005] 2 NZLR 526 [2005] 2 NZLR 526
Citation 14 (Para 43)

…velop progressively during adolescence and early adulthood, and may not be fully developed until the early to mid twenties: see R v Slade [2005] 2 NZLR 526 at [43], quoted by Kirby J in R v Elliott [2006] NSWCCA 305; (2006 68 NSWLR 1 at 27 [127]. As shown by R v Hearne [2001] NSWCCA 37; (2001) 124 A Crim R 451, yout…

Legislation Cited

Children (Criminal Proceedings) Act 1987 (NSW)
1 mention (from Para 5)
Court Suppression and Non-publication Orders Act 2010 (NSW)
1 mention (from Para 4)
Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 58)
Crimes Act 1900 (ACT)
1 mention (from Para 82)
Crimes Act 1914 (Cth)
1 mention (from Para 58)
Criminal Code Act 1995 (Cth)
1 mention (from Para 3)

Medium Neutral Citation:	R v RZ [2023] NSWDC 181
Hearing dates:	3 May 2023
Date of orders:	2 June 2023
Decision date:	02 June 2023
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Fulltime imprisonment. For orders see [134].
Catchwords:	CRIME – use carriage service to access child abuse material – use carriage service to transmit child abuse material – possess or control child abuse material using a carriage service – produce child abuse material.
Legislation Cited:	Children (Criminal Proceedings) Act 1987 Court Suppression and Non-Publication Orders Act 2010 Crimes Act 1900 (NSW) Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Code Act 1995 (Cth)
Cases Cited:	BP v R (2010) 201 A Crim R 372; [2010] NSWCCA 159 CDPP v Kawasaki Kisen Kaisha Ltd (2019) 137 ACSR 575; [2019] FCA 1170 CW v R [2022] NSWCCA 50 KT v R (2008) A Crim R 51; [2008] NSWCCA 51 R v Burton [2020] NSWCCA 127 R v Cahyadi [2007] NSWCCA 1 R v Clarkson (2011) 32 VR 361 R v Edwards [2019] QCA 15 R v Hutchinson [2018] NSWCCA 152 R v Porte (2015) 252 A Crim R 277; [2015] NSWCCA 174
Category:	Sentence
Parties:	The Commonwealth Director of Public Prosecutions (The Crown) RZ (The offender)
Representation:	Counsel: Ms D New (The Crown) Mr R Steward (The offender) Solicitors: Mr B Lovely (The Crown) Ms P Boyle (The Crown) Mr S O’Toole (The offender)
File Number(s):	22/382127 & 22/39658
Publication restriction:	Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 the name of the offender is not to be published in respect of Counts 1, 2 and 6 thereof. Further I have made a non-publication order in respect of the offender’s name for all offences pursuant to s 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010. For more abundant caution the offender’s name has been anonymised and he will be referred to as RZ in these remarks on the sentence. Section 578A of the Crimes Act 1900 and s15A of the Children (Criminal Proceedings) Act 1987 apply so as to prohibit the publication of any material which may identify or is likely to lead to the identification of any child victim in the proceedings.