R v Scott Gerard Luke Ward - [2008] NSWDC 148

CITATION: R v SW [2008] NSWDC 148
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 6 June 2008, 12 June 2008, 13 June 2008, 18 June 2008, 19 June 2008, 20 June 2008

JUDGMENT DATE:
20 June 2008

JURISDICTION: Criminal

JUDGMENT OF: Knox SC DCJ

DECISION: Sentence
Charge 1: Use Carriage Service to Transmit Child Pornography Material Section 474.19 Criminal Code Act 1995.
The offender is sentenced to a term of imprisonment of 2 and ½ years commencing from 16 June, 2008 and expiring on 15 December 2010.
Charge 2: Use Carriage Service to Access Child Pornography Material Section 474.19 Criminal Code Act 1995.
The offender is sentenced to a term of imprisonment of 2 and ½ years commencing from 16 March 2009, and expiring on 15 September 2011.
Single non-parole period for Charge 1 & 2 pursuant to s 19AB(1)(d) Crimes Act 1914 (Cth)
The offender is sentenced, in respect to charge 1 & 2, to a single non-parole period of 2 years, commencing from 16 June 2008 and expiring on 15 June 2010.
Charge 4: Possess Child Pornography Section 91 Crimes Act 1900 NSW.
The offender is sentenced to a fixed term of imprisonment of 14 months commencing from 16 June 2009 and expiring on 15 August 2010.
Effect of the sentence
The total sentence will be a head sentence of 3 years and 3 months imprisonment, commencing on 16 June 2008 and expiring on 15 September 2011, with a non-parole period of 2 years on the Commonwealth charges, with the fixed term imposed for the State charge commencing from 16 June 2009 and expiring on 15 August 2010.
Recommendations
Recommendations as to treatment while incarcerated.
I recommend that:
(i) the offender be processed quickly and that the Correctional authorities consider in terms of the offender’s classification and location, the fact that he was a former police officer, the nature of the offences and the offender’s current medication and medical needs – including his treatment by Dr Joshua.
(ii) the offender be considered for placement on the CUBIT or CORE programme at the first available opportunity.
Recommendations as to parole
On his release to parole, the offender will need to comply with all directions of the NSW probation and parole service including:
a) Compliance with any programme nominated by that service
b) Compliance with a supervised program established or put in place by that service.
c) Provision of details of his place of address and place of employment within 7 days of arranging such accommodation and employment
d) Details of any electronic equipment that he may purchase or utilise other than for banking or commercial purposes.
Section 166 Certificate
Two further offences (which were commenced out of time and the charge number details of which are on the court record) are dismissed.
Forfeiture Order
The Crown has sought a forfeiture order in relation to the computer hard drive and the disks involved. That is not opposed…

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.

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Details

Case: [2008] NSWDC 148
Decision Date: 20 June 2008

CaseChat Overview and Summary

In the matter of R v Scott Gerard Luke Ward, the defendant, a former police officer, was charged with various offences related to the possession and transmission of child pornography. The case was heard in a relevant Australian court. The primary legal issues the court had to address were the sentencing of the defendant for using a carriage service to transmit and access child pornography, as well as possessing such material. Additionally, the court had to consider the defendant's mental health, lack of prior convictions, and expressions of genuine remorse in determining the appropriate sentence.

The court meticulously examined the evidence and submissions to reach its decision. It acknowledged the defendant's low risk of reoffending, his anxiety and depression, and the loss of his family, career, and reputation. Despite the objective seriousness of the offences being low to mid-range, the court emphasised the paramount importance of general deterrence. The court concluded that a substantial custodial sentence was necessary to adequately reflect society's condemnation of the defendant's conduct. The court also took into account the special circumstances of the case, including the defendant's genuine remorse and the impact on his mental health.

The court imposed a total sentence of three years and three months imprisonment, with a non-parole period of two years on the Commonwealth charges and a fixed term for the State charge. The court also made recommendations for the defendant's treatment while incarcerated and outlined conditions for his parole. Furthermore, the court granted a forfeiture order for the computer hard drive and disks involved in the offences, subject to the defendant's wife receiving copies of personal images on the computer.

Orders

Orders of the court

Sentence Charge 1: Use Carriage Service to Transmit Child Pornography Material Section 474.19 Criminal Code Act 1995. The offender is sentenced to a term of imprisonment of 2 and * years commencing from 16 June, 2008 and expiring on 15 December 2010. Charge 2: Use Carriage Service to Access Child Pornography Material Section 474.19 Criminal Code Act 1995. The offender is sentenced to a term of imprisonment of 2 and * years commencing from 16 March 2009, and expiring on 15 September 2011. Single non-parole period for Charge 1 & 2 pursuant to s 19AB(1)(d) Crimes Act 1914 (Cth) The offender is sentenced, in respect to charge 1 & 2, to a single non-parole period of 2 years, commencing from 16 June 2008 and expiring on 15 June 2010. Charge 4: Possess Child Pornography Section 91 Crimes Act 1900 NSW. The offender is sentenced to a fixed term of imprisonment of 14 months commencing from 16 June 2009 and expiring on 15 August 2010. Effect of the sentence The total sentence will be a head sentence of 3 years and 3 months imprisonment, commencing on 16 June 2008 and expiring on 15 September 2011, with a non-parole period of 2 years on the Commonwealth charges, with the fixed term imposed for the State charge commencing from 16 June 2009 and expiring on 15 August 2010. Recommendations Recommendations as to treatment while incarcerated. I recommend that: (i) the offender be processed quickly and that the Correctional authorities consider in terms of the offender's classification and location, the fact that he was a former police officer, the nature of the offences and the offender's current medication and medical needs - including his treatment by Dr Joshua. (ii) the offender be considered for placement on the CUBIT or CORE programme at the first available opportunity. Recommendations as to parole On his release to parole, the offender will need to comply with all directions of the NSW probation and parole service including: a) Compliance with any programme nominated by that service b) Compliance with a supervised program established or put in place by that service. c) Provision of details of his place of address and place of employment within 7 days of arranging such accommodation and employment d) Details of any electronic equipment that he may purchase or utilise other than for banking or commercial purposes. Section 166 Certificate Two further offences (which were commenced out of time and the charge number details of which are on the court record) are dismissed. Forfeiture Order The Crown has sought a forfeiture order in relation to the computer hard drive and the disks involved. That is not opposed by the offender. Instructions have also been received from the offender's wife - who is apparently a part-owner of the hard drive to consent to that order provided that she receives copies of family and other personal photos and images on the computer. I will make that order to take effect from when the offender's wife receives the personal and other images requested.

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

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CITATION:	R v SW [2008] NSWDC 148 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	6 June 2008, 12 June 2008, 13 June 2008, 18 June 2008, 19 June 2008, 20 June 2008
JUDGMENT DATE:	20 June 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Knox SC DCJ
DECISION:	Sentence Charge 1: Use Carriage Service to Transmit Child Pornography Material Section 474.19 Criminal Code Act 1995. The offender is sentenced to a term of imprisonment of 2 and ½ years commencing from 16 June, 2008 and expiring on 15 December 2010. Charge 2: Use Carriage Service to Access Child Pornography Material Section 474.19 Criminal Code Act 1995. The offender is sentenced to a term of imprisonment of 2 and ½ years commencing from 16 March 2009, and expiring on 15 September 2011. Single non-parole period for Charge 1 & 2 pursuant to s 19AB(1)(d) Crimes Act 1914 (Cth) The offender is sentenced, in respect to charge 1 & 2, to a single non-parole period of 2 years, commencing from 16 June 2008 and expiring on 15 June 2010. Charge 4: Possess Child Pornography Section 91 Crimes Act 1900 NSW. The offender is sentenced to a fixed term of imprisonment of 14 months commencing from 16 June 2009 and expiring on 15 August 2010. Effect of the sentence The total sentence will be a head sentence of 3 years and 3 months imprisonment, commencing on 16 June 2008 and expiring on 15 September 2011, with a non-parole period of 2 years on the Commonwealth charges, with the fixed term imposed for the State charge commencing from 16 June 2009 and expiring on 15 August 2010. Recommendations Recommendations as to treatment while incarcerated. I recommend that: (i) the offender be processed quickly and that the Correctional authorities consider in terms of the offender’s classification and location, the fact that he was a former police officer, the nature of the offences and the offender’s current medication and medical needs – including his treatment by Dr Joshua. (ii) the offender be considered for placement on the CUBIT or CORE programme at the first available opportunity. Recommendations as to parole On his release to parole, the offender will need to comply with all directions of the NSW probation and parole service including: a) Compliance with any programme nominated by that service b) Compliance with a supervised program established or put in place by that service. c) Provision of details of his place of address and place of employment within 7 days of arranging such accommodation and employment d) Details of any electronic equipment that he may purchase or utilise other than for banking or commercial purposes. Section 166 Certificate Two further offences (which were commenced out of time and the charge number details of which are on the court record) are dismissed. Forfeiture Order The Crown has sought a forfeiture order in relation to the computer hard drive and the disks involved. That is not opposed…