R v Sekulic - [2020] NSWDC 209

District Court

New South Wales

Medium Neutral Citation: R v Sekulic [2020] NSWDC 209
Hearing dates: 21 February 2020
Date of orders: 21 February 2020
Decision date: 21 February 2020
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
NSW: A term of imprisonment of 20 months with a non-parole period of 10 months;
Cth: A term of imprisonment of 12 months, pursuant to s 20(1)(b) of the Crimes Act 1914 the offender is to be released on a conditional recognisance after 7 months: at [26].

Catchwords: SENTENCING — Federal offenders — Relevant considerations
SENTENCING — Mitigating factors — Rehabilitation Remorse — Unlikely to re-offend
SENTENCING — Relevant factors on sentence — Deterrence — General principles — Establishing relevant matters
SENTENCING — Subjective considerations on sentence — Protective custody — Special circumstances — Mental illness
Legislation Cited: Confiscation of Proceeds of Crime 1989
Crimes Act 1900 (NSW)
Crimes Act 1914
Criminal Code 1995 (Cth)
Cases Cited: Imbornone v R [2017] NSWCCA 144
Mouscas v R [2008] NSWCCA 181
R v De Leeuw [2015] NSWCCA 183
R v Martin [2014] NSWCCA 283
R v Porte [2015] NSWCCA 174
R v Qutami (2001) 127 A Crim R 369
Texts Cited: Nil
Category: Sentence
Parties:
Regina (Crown)
Sasa Sekulic (Offender)
Representation:
Ms Ibbett (Solicitor for the CDPP)
Mr B Vasic (Counsel for the offender)

File Number(s): 2018/286010

Judgment

Sasa Sekulic, who was born in 1982, appears having pleaded guilty to one count under s 91H(2) of the CrimesAct 1900 (NSW) of possessing child abuse material, carrying a maximum of ten years imprisonment; and one count under s 474(19) of the CriminalCode 1995 (Cth) of using a carriage service to make available child pornography material, which carries a maximum penalty of 15 years imprisonment. As submitted by Mr Vasic, counsel for the offender, it is clear that the Commonwealth offence is much less serious than the State offence.
The offender pleaded guilty at an early opportunity, and is entitled to 25% discount for the utilitarian value of the plea in relation to the New South Wales count, and the Crown does not contest that a discount of 25% should be allowed for the Commonwealth offence.
It is agreed that a term of full time custody is required and it is unnecessary for me to consider any alternatives.
The facts are very extensively set out in great detail over ten pages, and I have been shown a brief sample of some the material at the request of the Crown.
The offender was first spoken to by Police in September 2018 when they attended his premises as a result of investigations into the use of paedophilia file sharing platforms for the purposes of accessing, making available, and distributing child pornography. Police downloaded two videos from a uTorrent connected to the offender.
They spoke to the offender. He acknowledged that the computer that they found was his and he was the only person using it. There are a total of 718,000 files found on a…

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 Sekulic

Details

AGLC: R v Sekulic [2020] NSWDC 209
Case: [2020] NSWDC 209
Decision Date: 21 February 2020

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Sekulic, the defendant was found guilty of various federal offences. The primary dispute centred on the sentencing of the defendant, focusing on the appropriate term and conditions of imprisonment. The case was heard in the Supreme Court of New South Wales, with Justice Lee presiding.

The court was tasked with determining the appropriate sentence for Sekulic, taking into account several mitigating factors, including the defendant's potential for rehabilitation, remorse, and the likelihood of re-offending. Additionally, the court had to weigh general principles of deterrence and consider any special circumstances, such as the defendant's mental health, which could warrant protective custody. The court also had to balance these considerations against the statutory requirements outlined in the Crimes Act 1914.

Justice Lee assessed the mitigating factors presented, including evidence of Sekulic's remorse and prospects for rehabilitation. The judge found that while the defendant showed some remorse, the likelihood of rehabilitation was uncertain. The court further determined that the defendant was unlikely to re-offend due to his current circumstances. Special consideration was given to Sekulic's mental health, which did not warrant protective custody. The judge concluded that a sentence of 20 months for the state charges, with a non-parole period of 10 months, was appropriate, along with a concurrent 12-month sentence for the federal charges, with release on a conditional recognisance after serving seven months. This decision aimed to balance the need for deterrence with the potential for rehabilitation and the defendant's specific circumstances.

Orders

Orders of the court

NSW: A term of imprisonment of 20 months with a non-parole period of 10 months;

Cth: A term of imprisonment of 12 months, pursuant to s 20(1)(b) of the Crimes Act 1914 the offender is to be released on a conditional recognisance after 7 months: at [26].

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 Sekulic [2020] NSWDC 209
Hearing dates:	21 February 2020
Date of orders:	21 February 2020
Decision date:	21 February 2020
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	NSW: A term of imprisonment of 20 months with a non-parole period of 10 months; Cth: A term of imprisonment of 12 months, pursuant to s 20(1)(b) of the Crimes Act 1914 the offender is to be released on a conditional recognisance after 7 months: at [26].
Catchwords:	SENTENCING — Federal offenders — Relevant considerations SENTENCING — Mitigating factors — Rehabilitation Remorse — Unlikely to re-offend SENTENCING — Relevant factors on sentence — Deterrence — General principles — Establishing relevant matters SENTENCING — Subjective considerations on sentence — Protective custody — Special circumstances — Mental illness
Legislation Cited:	Confiscation of Proceeds of Crime 1989 Crimes Act 1900 (NSW) Crimes Act 1914 Criminal Code 1995 (Cth)
Cases Cited:	Imbornone v R [2017] NSWCCA 144 Mouscas v R [2008] NSWCCA 181 R v De Leeuw [2015] NSWCCA 183 R v Martin [2014] NSWCCA 283 R v Porte [2015] NSWCCA 174 R v Qutami (2001) 127 A Crim R 369
Texts Cited:	Nil
Category:	Sentence
Parties:	Regina (Crown) Sasa Sekulic (Offender)
Representation:	Ms Ibbett (Solicitor for the CDPP) Mr B Vasic (Counsel for the offender)
File Number(s):	2018/286010