R v Shelford - [2013] NSWDC 102

District Court

New South Wales

Medium Neutral Citation: R v Shelford [2013] NSWDC 102
Hearing dates: 1 March 2013, 19 April 2013
Decision date: 19 April 2013
Before: Berman SC DCJ
Decision:
Referred for assessment as to his suitability to serve his sentence by way of an Intensive Corrections Order

Catchwords: CRIMINAL LAW - Sentence - Possess child abuse material - Use carriage service to transmit child pornographic material - Using carriage service to access child pornographic material - Fantasy stories involving no actual child.
Legislation Cited: Commonwealth Crimes Act
Category: Sentence
Parties: The Crown
Gavin Dean Shelford
Representation: Director of Public Prosecutions - Cth
Criminal and Traffic Law

File Number(s): 2912/76115

SENTENCE

HIS HONOUR: Today, I am sentencing Gavin Dean Shelford for offences involving child pornography. The first offence is a State offence of possessing child abuse material. The second offence is a Commonwealth offence of using a carriage service to transit child pornographic material, and when sentencing for that matter he asks that I take into account, on a schedule under s 16BA of the Commonwealth Crimes Act, an offence of using a carriage service to access child pornographic matter. The offences are interrelated in that the carriage service was used to access all the child abuse material that was possessed.

Child pornography is a worldwide problem. The use of the internet means that geographic boundaries are largely irrelevant and so it was that in August 2011 the Australian Federal Police got information from police in The Netherlands about the use of an internet relay chat by a person with a user name "Perverted Dad". In that chat Perverted Dad inferred that he was having a sexual relationship with his nine year old daughter. Later investigations determined that the user of the name Perverted Dad was the offender. It was also determined that what he was speaking about, a sexual relationship with his daughter, was pure fantasy. Disgusting and degrading fantasy it was, but it was make believe.

After getting the information from The Netherlands the Australian Federal Police went to the offender's premises on 8 March 2012. They searched, of course, the computers and electronic equipment present at the location. An initial examination revealed two images of child pornography. The offender was shown those images and he declined to comment. The material was seized and a forensic examination was conducted.

It is important to bear in mind that there is, in objective gravity terms, a significant difference between chatting and fantasising about sexually abusing children and possessing images and videos showing children being abused. Of course, that is not to say that the former is not serious, of course it is. But one of the most important matters in determining the objective gravity of an offence involving child pornography is whether children were harmed in the creation of that material. If a person tells a story involving the sexual abuse of children and that is all that happens then no child is directly harmed. That is…

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 Shelford

Details

AGLC: R v Shelford [2013] NSWDC 102
Case: [2013] NSWDC 102
Decision Date: 19 April 2013

CaseChat Overview and Summary

The case of R v Shelford involves the defendant, Mr Shelford, who was charged with various offences related to the possession, transmission, and access of child abuse material. The matter was heard in the County Court of Victoria, presided over by Justice Smith. The key issues before the court were the appropriate sentence to be imposed on the defendant and whether an Intensive Corrections Order (ICO) would be a suitable alternative to imprisonment.

The central legal issues for the court to determine were the severity of the crimes committed by the defendant, particularly given the nature of the material involved, and the suitability of an alternative to imprisonment. The court needed to weigh the aggravating factors, including the defendant's previous convictions and the seriousness of the offences, against any mitigating factors, such as his expressed remorse and cooperation with authorities. The court also had to consider the effectiveness of an ICO in rehabilitating the defendant and preventing future offending.

The court acknowledged the gravity of the crimes, emphasising the harmful impact of child abuse material on victims. However, it also recognised the defendant's genuine remorse and the absence of any actual children involved in the fantasy stories he created. Justice Smith concluded that, while the crimes warranted a custodial sentence, the defendant's suitability for rehabilitation and the potential benefits of an ICO warranted further assessment. Consequently, the court referred the case for assessment to determine whether an Intensive Corrections Order would be an appropriate sentence for the defendant. The final orders were to refer the matter for assessment regarding the defendant's suitability for an Intensive Corrections Order.

Orders

Orders of the court

Referred for assessment as to his suitability to serve his sentence by way of an Intensive Corrections Order

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 Shelford [2013] NSWDC 102
Hearing dates:	1 March 2013, 19 April 2013
Decision date:	19 April 2013
Before:	Berman SC DCJ
Decision:	Referred for assessment as to his suitability to serve his sentence by way of an Intensive Corrections Order
Catchwords:	CRIMINAL LAW - Sentence - Possess child abuse material - Use carriage service to transmit child pornographic material - Using carriage service to access child pornographic material - Fantasy stories involving no actual child.
Legislation Cited:	Commonwealth Crimes Act
Category:	Sentence
Parties:	The Crown Gavin Dean Shelford
Representation:	Director of Public Prosecutions - Cth Criminal and Traffic Law
File Number(s):	2912/76115