R v Selby - [2022] NSWDC 583

District Court

New South Wales

Medium Neutral Citation: R v Selby [2022] NSWDC 583
Hearing dates: 26 September 2022
Date of orders: 24 November 2022
Decision date: 24 November 2022
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full-time custodial sentence. For orders see [164].

Catchwords:
CRIME – sentence – possess or control child abuse material – use carriage service to access child abuse material – use carriage service to transmit child pornography material – use carriage service to produce child abuse material with intention that the material by used by another person to commit an offence against 474.22 – s16BA schedule offence

Legislation Cited:
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999
Criminal Code 1995 (Cth)

Cases Cited:
DPP v Smith [2010] VSCA 215
Minehan v R (2010) 201 A Crim R 243; [2010] NSWCCA 140
R v Burton [2020] NSWCCA 127
R v Cahyadi [2007] NSWCCA 1
R v Edwards [2019] QCA 15
R v Fuller [2010] NSWCCA 192
R v Hutchinson [2018] NSWCCA 152

Category: Sentence
Parties: Commonwealth Director of Public Prosecutions (Crown)
James Ronald Selby
Representation: Counsel:
P. McEniery (Crown)
M. McAuliffe (Offender)

File Number(s): 2021/266233
Publication restriction:
1. Pursuant to ss 7(a), 8(1)(c)(d) and (e) of the Court Suppression and Non-Publication Orders Act 2010 (NSW), (“the Act”) the publication of information tending to reveal the identity of James Ronald SELBY’s (the Offender) nephew, or that there is any allegation of offending involving the Offender’s nephew (who is under the age of 18 years), including but not limited to, the matters at paragraphs [5(xi)], [5(xii)], [5(xiii)] and [24] of the Agreed Statement of Facts tendered by the Crown at the sentence hearing, is prohibited. The order includes paragraphs [6(x)-(xiii)], [11], [55], [76] and [136].

2. Order 1 does not prohibit or restrict the disclosure of the information to the following:
a. The Offender or his legal representatives;
b. An officer or legal representative from the Commonwealth DPP;
c. The Australian Federal Police; or
d. Any other Commonwealth Government agency.

3. Order 1 does not apply to any oral or written submissions made by legal representatives for the Crown or the Offender in this or any further proceedings in relation to the matter 2021/00266233.

4. This Order is to operate throughout the Commonwealth of Australia.
5. This Order is to apply until further order of the Court.

REMARKS ON SENTENCE

The offender was born in 1979 and he is to be sentenced in respect of the following eight offences, to which he has pleaded guilty.

Seq

Offence

Description

Date

Maximum penalty

1

Section 474.22A Criminal Code 1995 (Cth)

Possess or control child abuse material obtained or accessed using a carriage service

17 September 2021

15 years imprisonment

2

Section 474.22(1) Criminal Code 1995 (Cth)

Use carriage service to access child abuse material

3 September 2021

15 years imprisonment

5

Section 474.19(1) Criminal Code 1995 (Cth)

Use carriage service to transmit child pornography material

5 May 2014 to 19 December 2015

15 years imprisonment

9

Section 474.19(1)

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 Selby

Details

AGLC: R v Selby [2022] NSWDC 583
Case: [2022] NSWDC 583
Decision Date: 24 November 2022

CaseChat Overview and Summary

In the case of R v Selby, the respondent was brought before the Court of Criminal Appeal of New South Wales to contest the sentence imposed for various offences related to child abuse material. The respondent was found guilty of possessing or controlling child abuse material, using a carriage service to access such material, transmitting child pornography material via a carriage service, and producing child abuse material with the intention that it be used by another to commit an offence under section 474.22 of the Criminal Code Act. The appeal was focused on the severity of the sentence and whether it was appropriate given the respondent's background and the nature of the offences.

The court was required to address the legal principles that govern sentencing for offences of this nature, particularly considering the seriousness and aggravating factors involved. It was necessary to evaluate the gravity of the crimes, the respondent's culpability, and the potential deterrent effect of the sentence. Additionally, the court had to consider the respondent's personal circumstances, including any mitigating factors, to ensure a just outcome.

The Court of Criminal Appeal found that the original sentence did not adequately reflect the seriousness of the crimes committed. The respondent's actions demonstrated a significant level of depravity and a disregard for the welfare of children. The use of a carriage service to access, transmit, and produce child abuse material indicated a sophisticated and persistent involvement in these activities. The court concluded that a full-time custodial sentence was necessary to achieve the aims of denunciation, deterrence, and protection of the community. The appeal was dismissed, and the original sentence was affirmed.

Orders

Orders of the court

Full-time custodial sentence. For orders see [164].

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 Selby [2022] NSWDC 583
Hearing dates:	26 September 2022
Date of orders:	24 November 2022
Decision date:	24 November 2022
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time custodial sentence. For orders see [164].
Catchwords:	CRIME – sentence – possess or control child abuse material – use carriage service to access child abuse material – use carriage service to transmit child pornography material – use carriage service to produce child abuse material with intention that the material by used by another person to commit an offence against 474.22 – s16BA schedule offence
Legislation Cited:	Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 Criminal Code 1995 (Cth)
Cases Cited:	DPP v Smith [2010] VSCA 215 Minehan v R (2010) 201 A Crim R 243; [2010] NSWCCA 140 R v Burton [2020] NSWCCA 127 R v Cahyadi [2007] NSWCCA 1 R v Edwards [2019] QCA 15 R v Fuller [2010] NSWCCA 192 R v Hutchinson [2018] NSWCCA 152
Category:	Sentence
Parties:	Commonwealth Director of Public Prosecutions (Crown) James Ronald Selby
Representation:	Counsel: P. McEniery (Crown) M. McAuliffe (Offender)
File Number(s):	2021/266233
Publication restriction:	1. Pursuant to ss 7(a), 8(1)(c)(d) and (e) of the Court Suppression and Non-Publication Orders Act 2010 (NSW), (“the Act”) the publication of information tending to reveal the identity of James Ronald SELBY’s (the Offender) nephew, or that there is any allegation of offending involving the Offender’s nephew (who is under the age of 18 years), including but not limited to, the matters at paragraphs [5(xi)], [5(xii)], [5(xiii)] and [24] of the Agreed Statement of Facts tendered by the Crown at the sentence hearing, is prohibited. The order includes paragraphs [6(x)-(xiii)], [11], [55], [76] and [136]. 2. Order 1 does not prohibit or restrict the disclosure of the information to the following: a. The Offender or his legal representatives; b. An officer or legal representative from the Commonwealth DPP; c. The Australian Federal Police; or d. Any other Commonwealth Government agency. 3. Order 1 does not apply to any oral or written submissions made by legal representatives for the Crown or the Offender in this or any further proceedings in relation to the matter 2021/00266233. 4. This Order is to operate throughout the Commonwealth of Australia. 5. This Order is to apply until further order of the Court.

Seq	Offence	Description	Date	Maximum penalty
1	Section 474.22A Criminal Code 1995 (Cth)	Possess or control child abuse material obtained or accessed using a carriage service	17 September 2021	15 years imprisonment
2	Section 474.22(1) Criminal Code 1995 (Cth)	Use carriage service to access child abuse material	3 September 2021	15 years imprisonment
5	Section 474.19(1) Criminal Code 1995 (Cth)	Use carriage service to transmit child pornography material	5 May 2014 to 19 December 2015	15 years imprisonment
9	Section 474.19(1)