R v Steven James McKenna - [2015] NSWDC 250

District Court

New South Wales

Medium Neutral Citation: R v Steven James McKenna [2015] NSWDC 250
Hearing dates: 4 September 2015
Decision date: 10 September 2015
Jurisdiction: Criminal
Before: Colefax SC DCJ
Decision:
Effective term of imprisonment of 5 years with a non parole period of 3 years 9 months.

Catchwords: Child abuse offences- possess child abuse material - use carriage service to groom - use carriage service to procure - cause carriage service to transmit child pornography - effect on victim of even Category 1 material - aggregate sentences - Desirability of Commonwealth offences being subject to such orders. Commonwealth Parliament urged to make appropriate amendments.
Legislation Cited: Crimes Act (NSW) 1900, s.91 H(2); Commonwealth Criminal Code, ss. 474.27(1), 474.26 (1), and 474.19.
Cases Cited: R v Porte [2015] NSWCCA 174.
Texts Cited: Royal Commission into Institutional Responses to Child Sexual Abuse
Category: Sentence
Parties: Regina (Crown)
Steven James McKenna (Offender)
Representation:
Mr Grodzicki (Commonwealth Director of Public Prosecutions)
Mr C. Simpson of Counsel

File Number(s): 2014/15386
Publication restriction: The names of the 2 victims or any other information that might identify them.

Judgment

In these remarks I shall be referring to two young women. Because of their ages at the time of the offences, and because the Court is open to the public, I shall not use their real names. I do, however, continue the non-publication order I earlier made as to their real names or any other information that might otherwise identify them.
It follows from that order that no access may be had to any court exhibit by any third party without a specific order by me.
Steven James McKenna appears for sentence in relation to the following five offences.
First, one offence of possessing child abuse material contrary to s 91H(2) of the Crimes Act New South Wales. The maximum penalty for that offence is ten years imprisonment. There is no standard non-parole period.
Secondly, one offence of using a carriage service to groom a person under sixteen years, contrary to s 474.27(1) of the Commonwealth Criminal Code. The maximum penalty for that offence is twelve years imprisonment.
Thirdly, one offence of using a carriage service to procure a person under sixteen years for sexual activity, contrary to s 474.26(1) of the Commonwealth Criminal Code. The maximum penalty is fifteen years imprisonment.
Finally, two offences of using a carriage service to cause child pornography to be transmitted to self, contrary to s 474.19 (1) (a) (ii) of the Commonwealth Criminal Code. The maximum penalty for these offences is 15 years imprisonment.
The facts surrounding the offences are contained in an agreed statement of facts and slightly re-cast by me are as follows.
As at October 2013, Mr McKenna was aged 27 years and Jessica was aged 14 years. He lived in Queanbeyan and she in Bathurst.
At around that time they ‘met’ on a ‘teen dating’ website. Each was aware of the other’s age. Their on-line communications developed to the point where they exchanged…

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 Steven James McKenna

Details

AGLC: R v Steven James McKenna [2015] NSWDC 250
Case: [2015] NSWDC 250
Decision Date: 10 September 2015

CaseChat Overview and Summary

In the case of R v Steven James McKenna, the defendant was convicted of several child abuse offences, including possessing child abuse material, using a carriage service to groom, using a carriage service to procure, and causing a carriage service to transmit child pornography. The case was heard in the relevant court where the severity of the crimes and the impact on the victim were thoroughly examined. The central legal issues revolved around the interpretation and application of existing laws concerning child abuse material, specifically whether the Commonwealth offences were subject to certain orders and the aggregate sentences that could be imposed.

The court had to determine the appropriate sentencing approach given the cumulative nature of the offences committed by the defendant. This included examining the impact on the victim, particularly the effect of Category 1 material, and whether there was a need for the Commonwealth Parliament to amend the law to allow for more comprehensive sentencing orders. The court also considered the need to balance the severity of the crimes with the potential for rehabilitation and the protection of the community.

After careful deliberation, the court decided that the aggregate sentences should reflect the gravity of the offences. The court acknowledged the significant impact on the victim and the need for a strong deterrent effect. The court sentenced the defendant to an effective term of imprisonment of five years, with a non-parole period of three years and nine months. The decision underscores the court's commitment to addressing child abuse offences with appropriate and proportionate penalties, while also urging legislative reform to enhance the effectiveness of such sentences.

Orders

Orders of the court

Effective term of imprisonment of 5 years with a non parole period of 3 years 9 months.

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 Steven James McKenna [2015] NSWDC 250
Hearing dates:	4 September 2015
Decision date:	10 September 2015
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Effective term of imprisonment of 5 years with a non parole period of 3 years 9 months.
Catchwords:	Child abuse offences- possess child abuse material - use carriage service to groom - use carriage service to procure - cause carriage service to transmit child pornography - effect on victim of even Category 1 material - aggregate sentences - Desirability of Commonwealth offences being subject to such orders. Commonwealth Parliament urged to make appropriate amendments.
Legislation Cited:	Crimes Act (NSW) 1900, s.91 H(2); Commonwealth Criminal Code, ss. 474.27(1), 474.26 (1), and 474.19.
Cases Cited:	R v Porte [2015] NSWCCA 174.
Texts Cited:	Royal Commission into Institutional Responses to Child Sexual Abuse
Category:	Sentence
Parties:	Regina (Crown) Steven James McKenna (Offender)
Representation:	Mr Grodzicki (Commonwealth Director of Public Prosecutions) Mr C. Simpson of Counsel
File Number(s):	2014/15386
Publication restriction:	The names of the 2 victims or any other information that might identify them.