R v Schipanski - [2015] NSWDC 381

District Court

New South Wales

Medium Neutral Citation: R v SCHIPANSKI [2015] NSWDC 381
Hearing dates: 12/05/2015
Decision date: 21 May 2015
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Count 1 - Sentence to a term of imprisonment of 2 years and 3 months to be released at the expiration of 9 months upon entering a recognizance and to be of good behaviour for a period of 1 year and 6 months.
Count 2 - Sentenced to a term of imprisonment of 1 year and 6 months with a non parole period being 6 months.
Count 3 - Sentenced to a term of imprisonment of 1 year and 6 months with a non parole period being 6 months.
Count 4 - Sentenced to a term of imprisonment of 1 year and 6 months with a non parole period being 6 months.

Catchwords: CRIMINAL – Sentence, use a carriage service to access child pornography material, possess child abuse material, mental disability, no prior convictions.
Legislation Cited: Crimes Act (Cth) 1914
Criminal Code Act 1995
Crimes (Sentencing Procedure) Act 1999
Crimes Act (NSW) 1900
Cases Cited: DPP v De La Rosa [2010] NSWCCA 194
Hili and Jones v The Queen [2010] HCA 45
Minehan v R (2010) 201 A Crim R 243
Pearce v The Queen (1998) 194 CLR 610
R v Gent [2005] NSWCCA 370
R v Thomson and Houlton [2000] NSWCCA 309
Category: Sentence
Parties: Director of Public Prosecution (Cth) – Crown
Christopher Harold Schipanski - Offender
Representation: Counsel:
Mr Wilson - Crown
Mr Ranalingam - Offender

File Number(s): 2014/40027

SENTENCE

HIS HONOUR: Christopher Harold Schipanski pleaded guilty on an indictment, having been committed for sentence, in respect of four offences, one a Commonwealth crime, the other three offences contrary to the New South Wales Crimes Act.
The Commonwealth offence alleged that he between 1 January 2011 and about 12 December 2013 at Broken Hill in the State of New South Wales did use a carriage service to access child pornography material. This is an offence contrary to subs 474.19(1)(a)(i) of the Commonwealth Criminal Code. I am informed by the Crown in its written submissions it carries a maximum penalty of 15 years imprisonment.
In relation to the three State offences they are all offences contrary to s 91H(2) Crimes Act 1900 NSW, and each offence carries a maximum penalty of 10 years imprisonment.
Each offence was committed on 12 December 2013 and relates to the possession of child abuse material stored in particular places hence the different charges.
Count 2 on the indictment alleged the prisoner’s possession of child abuse material on what is described as a Lexar USB flash drive.
The third count in the indictment alleges the accused’s possession of child abuse material on a black Thermaltake PC tower.
The fourth count in the indictment alleges possession of child abuse material on fourteen CD/DVD’s.
The essential facts of the matter are that by the use of a carriage service over a period of time…

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 Schipanski

Details

AGLC: R v Schipanski [2015] NSWDC 381
Case: [2015] NSWDC 381
Decision Date: 21 May 2015

CaseChat Overview and Summary

In the case of R v Schipanski, the respondent was convicted of using a carriage service to access child pornography material, possessing child abuse material, and engaging in related activities. The matter was heard in the County Court of Victoria. The respondent, who had no prior convictions, also had a diagnosed mental disability, which was a factor considered during sentencing.

The court was required to determine the appropriate sentence for the respondent's crimes, taking into account the severity of the offences, the respondent's lack of prior convictions, and their mental disability. The court needed to balance these factors with the need to protect the community and deter similar criminal behaviour.

The court acknowledged the respondent's mental disability as a mitigating factor but emphasised the seriousness of the crimes, which involved the exploitation of children. After considering all relevant factors, the court imposed a sentence consisting of imprisonment terms for each count, with specific non-parole periods for certain counts, and ordered that the respondent be released on recognisance after serving a portion of the sentence.

The final orders were that the respondent be sentenced to 2 years and 3 months imprisonment for the first count, to be released at the expiration of 9 months upon entering a recognizance, and to be of good behaviour for 1 year and 6 months. For the remaining three counts, the respondent was sentenced to 1 year and 6 months imprisonment, with a non-parole period of 6 months for each count.

Orders

Orders of the court

Count 1 - Sentence to a term of imprisonment of 2 years and 3 months to be released at the expiration of 9 months upon entering a recognizance and to be of good behaviour for a period of 1 year and 6 months.

Count 2 - Sentenced to a term of imprisonment of 1 year and 6 months with a non parole period being 6 months.

Count 3 - Sentenced to a term of imprisonment of 1 year and 6 months with a non parole period being 6 months.

Count 4 - Sentenced to a term of imprisonment of 1 year and 6 months with a non parole period being 6 months.

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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Medium Neutral Citation:	R v SCHIPANSKI [2015] NSWDC 381
Hearing dates:	12/05/2015
Decision date:	21 May 2015
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Count 1 - Sentence to a term of imprisonment of 2 years and 3 months to be released at the expiration of 9 months upon entering a recognizance and to be of good behaviour for a period of 1 year and 6 months. Count 2 - Sentenced to a term of imprisonment of 1 year and 6 months with a non parole period being 6 months. Count 3 - Sentenced to a term of imprisonment of 1 year and 6 months with a non parole period being 6 months. Count 4 - Sentenced to a term of imprisonment of 1 year and 6 months with a non parole period being 6 months.
Catchwords:	CRIMINAL – Sentence, use a carriage service to access child pornography material, possess child abuse material, mental disability, no prior convictions.
Legislation Cited:	Crimes Act (Cth) 1914 Criminal Code Act 1995 Crimes (Sentencing Procedure) Act 1999 Crimes Act (NSW) 1900
Cases Cited:	DPP v De La Rosa [2010] NSWCCA 194 Hili and Jones v The Queen [2010] HCA 45 Minehan v R (2010) 201 A Crim R 243 Pearce v The Queen (1998) 194 CLR 610 R v Gent [2005] NSWCCA 370 R v Thomson and Houlton [2000] NSWCCA 309
Category:	Sentence
Parties:	Director of Public Prosecution (Cth) – Crown Christopher Harold Schipanski - Offender
Representation:	Counsel: Mr Wilson - Crown Mr Ranalingam - Offender
File Number(s):	2014/40027