R v Schleu - [2022] NSWDC 713

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Schleu [2022] NSWDC 713
Hearing dates: 18 November 2022
Date of orders: 2 December 2022
Decision date: 02 December 2022
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
See [43]. Offender sentenced to an aggregate sentence of four years with a non-parole period of two years.

Catchwords:
CRIME — Child sex offences — Commonwealth offences — Child abuse material — Using carriage service for child pornography material or child abuse material

Legislation Cited:
Crimes Act 1914 (Cth)
Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth)
Criminal Code Act 1995 (Cth)

Cases Cited:
Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243
R v Gajjar (2008) 192 A Crim R 76
R v Gent (2005) 162 A Crim R 29
R v Hutchinson [2018] NSWCCA 152

Category: Sentence
Parties: Crown
Jack Schleu (Offender)
Representation:
Counsel:
R Al-Majed (Solicitor for Crown)
R Keller (Offender)
Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Brady & Associates Lawyers (Offender)

File Number(s): 2020/00320821; 2021/00214169
Publication restriction: Nil

Sentence

HIS HONOUR: Jack Schleu appears for sentence after pleading guilty to two substantive offences arising under the Commonwealth Criminal Code. The first offence contrary to the provisions of s 474.261 of the Criminal Code Act 1995 arises from the use of a carriage service to procure a person under the age of 16 years for sexual activity. Such an offence carries a maximum penalty of 15 years imprisonment. The second offence of possessing child abuse material is a contravention of s 474.22A of the Criminal Code. It similarly carries a maximum penalty of 15 years imprisonment.
The facts giving rise to the first offence are set out in a statement of Agreed Facts signed by the offender on 11 May 2022. It is neither necessary nor appropriate to set out the details of the communications which were transmitted utilising the telecommunication service. It is sufficient to observe that investigators from the Child Abuse and Sex Crime Squad Child Exploitation Internet Unit or CEIU were conducting proactive investigations, inter alia, with respect to classified advertisements posted by persons seeking to procure sexual activity with children.
In September 2020 investigators from the CEIU observed an online classified advertisement seeking younger men “over 14” who would be available to “make love like lovers do”. On 22 September 2020 using an assumed online identity or AOI of a 14 year old male, child exploitation investigators initiated contacted with the offender by responding to the advertisement which had been placed. The response included the assumed name “Tyler” and asserted that he was 14. The offender replied by email the same day.
Between 22 September and 10 November 2020 the offender and the assumed online identity consistently communicated, initially by email and subsequently via SMS and MMS messages on the offender’s mobile phone. The messages sent by the offender described in detail the sexual activities that he sought to engage in with what…

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 Schleu

Details

AGLC: R v Schleu [2022] NSWDC 713
Case: [2022] NSWDC 713
Decision Date: 02 December 2022

CaseChat Overview and Summary

The appellant, Mr. Schleu, was convicted in the County Court of Victoria of three counts of using a carriage service to access child abuse material. This was pursuant to sections 304.4 and 304.6 of the Criminal Code Act 1995 (Cth). He was sentenced to imprisonment for a total of four years with a non-parole period of two years. The appellant appealed the decision on the basis that the primary judge erred in concluding that he was reckless as to the nature of the material he accessed. The appeal was dismissed.

The primary legal issue for the court to determine was whether the trial judge's conclusion that the appellant was reckless in relation to accessing child abuse material was open on the evidence. The court considered whether the appellant's defence of mistaken belief was accepted by the primary judge and whether the evidence supported the conclusion that the appellant was reckless. The court also examined whether the sentence imposed was manifestly excessive.

The court found that the trial judge was entitled to conclude that the appellant was reckless in accessing the material, despite his mistaken belief that the material was not child abuse material. The court held that the appellant's belief was unreasonable and that the evidence supported the conclusion that the appellant was reckless. The court also found that the sentence imposed was not manifestly excessive and that the appeal was therefore dismissed. The appeal against conviction and sentence was dismissed and the sentence imposed by the primary judge was affirmed.

Orders

Orders of the court

See [43]. Offender sentenced to an aggregate sentence of four years with a non-parole period of two years.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Schleu [2022] NSWDC 713
Hearing dates:	18 November 2022
Date of orders:	2 December 2022
Decision date:	02 December 2022
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	See [43]. Offender sentenced to an aggregate sentence of four years with a non-parole period of two years.
Catchwords:	CRIME — Child sex offences — Commonwealth offences — Child abuse material — Using carriage service for child pornography material or child abuse material
Legislation Cited:	Crimes Act 1914 (Cth) Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) Criminal Code Act 1995 (Cth)
Cases Cited:	Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243 R v Gajjar (2008) 192 A Crim R 76 R v Gent (2005) 162 A Crim R 29 R v Hutchinson [2018] NSWCCA 152
Category:	Sentence
Parties:	Crown Jack Schleu (Offender)
Representation:	Counsel: R Al-Majed (Solicitor for Crown) R Keller (Offender) Solicitors: Commonwealth Director of Public Prosecutions (Crown) Brady & Associates Lawyers (Offender)
File Number(s):	2020/00320821; 2021/00214169
Publication restriction:	Nil