R v Sutton

[2017] ACTSC 95

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Sutton

Citation:

[2017] ACTSC 95

Hearing Date:

2 May 2017

DecisionDate:

2 May 2017

Before:

Elkaim J

Decision:

See paragraph [27]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – possess child pornography – use carriage service to access child pornography – early plea of guilty

Legislation Cited:

Crimes Act 1900 (ACT) s 65
Criminal Code (Cth) s 474.19

Crimes (Sentencing) Act 2005 (ACT) s 33

Cases Cited:

Director of Public Prosecutions v Garside [2016] VSCA 74
R v De Leeuw [2015] NSWCCA 183

R v Verdins [2007] VSCA 102; 169 A Crim R 581

Parties:

The Queen (Crown)

Mackenzie William Sutton (Offender)

Representation:

Counsel

Ms E Hobba (Crown)

Mr S Whybrow (Offender)

Solicitors

Commonwealth Director of Public Prosecutions (Crown)

Ben Aulich & Associates (Offender)

File Number:

SCC 6 of 2017

ELKAIM J:

1. On 13 January 2017, the offender pleaded guilty to the following offences:

(a)Using a carriage service for child pornography material, contrary to s 474.19(1) (a) (ii) of the Criminal Code (Cth).

(b)Possessing child pornography material, contrary to s 65 of the Crimes Act 1900 (ACT).

1. The maximum penalty for the Commonwealth offence is 15 years’ imprisonment and/or a fine of $153 000.

1. The maximum penalty for the ACT offence is seven years imprisonment and/or a fine of $105 000.

1. The offender has been in custody since his arrest on 2 December 2016. The Crown accepts that he pleaded guilty at an early opportunity and that he is, accordingly, entitled to a discount on his sentence. In my view this discount should be 20 per cent.

1. In sentencing the offender, it is important to ensure that he is adequately punished for his offending and that the sentence is appropriate in all the circumstances of the case. In addition, in respect of the ACT offence, I note the requirements of s 33 of the Crimes (Sentencing) Act 2005 (ACT).

1. The New South Wales Court of Criminal Appeal has set out the factors that the Court should have regard to in assessing the objective seriousness of offences of this type. These factors are listed in R v De Leeuw [2015] NSWCCA 183.

1. It is not suggested that the offender stood to profit from the material. The material was present on the offender’s computer for about one month.

1. Other than the two factors just mentioned, all of the remaining factors point to a conclusion that the offending was objectively serious.

1. The material that is the subject of the offences was found on a computer belonging to the offender. It was made up of 4,379 child exploitation images and 84 child exploitation videos. Under the Australian National Victim Image Library Scheme (the ANVIL scheme), exploitation material is classified according to its objective severity. The word ‘severity’ is, to some degree, misleading because the ‘mildest’ of the material (Category 1) should not be regarded as inoffensive.

1. In the present case, the bulk…