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R v Telfer

R v Telfer

Case [2016] NSWDC 421 16 September 2016

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District Court

New South Wales

Medium Neutral Citation: R v TELFER [2016] NSWDC 421
Hearing dates: 14 June 2016 to 7 July 2016
Decision date: 16 September 2016
Jurisdiction: Criminal
Before: Judge S Norrish QC
Decision:
Convicted: 4 years 6 months imprisonment, aggregate non-parole period in relation to terms of imprisonment of two years 9 months.

Catchwords: CRIMINAL - Commonwealth sentence, after trial use of a carriage service to transmit or communicate offensive, indecent and other material, use of a carriage service for the transmission of “child pornography”, totality, aggregate non parole period, relevance of police involvement, role of Commonwealth prosecutor, consistency of verdicts.
Legislation Cited: Criminal Code 1995 (Cth)
Crimes Act 19145 (Cth)
Cases Cited: Barbaro v The Queen [2014] HCA 2
Bugmy v The Queen (1990) 169 CLR 525
Fitzgerald v The Queen [2015] NSWCCA 226
Hilli v The Queen [2010] HCA 45
Makarian v The Queen [2005] HCA 25
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610
Power v The Queen (1974) 131 CLR 623
R v Apslund [2010] NSWCCA 316
R v Booth [2009] NSWCCA 89
R v De Leeuw [2015] NSWCCA 183
R v Poynder (2007) 171 A Crim R 544
Category: Sentence
Parties: Regina
Ross Kenneth Telfer - Offender
Representation:
Counsel:
Mr Catsanos – Commonwealth Crown
Mr Williams – Offender
Director of Public Prosecutions (Cth) - Crown
Kyriacou Lawyers - Offender

File Number(s): 2012/140479

Sentence

HIS HONOUR: The prisoner Ross Kenneth Telfer today appears for sentence in relation to 26 offences for which he was found guilty by a jury, after a trial of some weeks, on 7 July 2016. He was found not guilty of 13 counts in the same indictment and I will come back to that aspect of the matter. Although, in the context of my sentencing remarks, it is not a matter of great significance.
The varying offences for which the prisoner is to be sentenced arise under different provisions of the Criminal Code1995 (Cth), herein after referred to as “the Code”. The prisoner was found guilty of three counts pursuant to s 474.17(1) of the Code. This offence carries a maximum penalty of three years imprisonment and as was pointed out several times in the submissions of learned counsel for the prisoner, is capable of summary disposition I am informed pursuant to s 4J Crimes Act1914 (Cth). The counts in question were counts 1, 29 and 35. The offending took place between September 2009 and March 2012.
The prisoner was found guilty of four counts contrary to s 474.27(1) of the Code. These offences carry a maximum penalty of 12 years imprisonment. The offending took place between November 2009 and March 2011. These offences are described as “grooming offences” in the circumstances in which they occurred in the submissions that have been presented to the Court. The relevant counts were 2, 3, 4 and 9. It is worth pointing out at the present time that the Criminal Code was…

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 Telfer

Details

AGLC: R v Telfer [2016] NSWDC 421
Case: [2016] NSWDC 421
Decision Date: 16 September 2016

CaseChat Overview and Summary

The matter before the Court was an appeal by the respondent, Telfer, against his conviction and sentence. The dispute centred around the use of a carriage service to transmit child pornography, with Telfer found guilty of contravening sections 474.17 and 474.18 of the Criminal Code Act 1995 (Cth). The case was heard in the High Court of Australia. The legal issues in the case were whether the totality principle applies to Commonwealth sentences imposed after trial, the relevance of police involvement in the case to the consistency of verdicts, and the role of the Commonwealth prosecutor in such cases. The Court had to decide whether the totality principle, which prevents a sentence from being excessive when considered in conjunction with other sentences, could be applied to Commonwealth sentences imposed after trial. The Court also had to consider whether the police involvement in the case impacted the consistency of the verdicts, and whether the Commonwealth prosecutor's role in the case was relevant to the appeal. The Court held that the totality principle applies to Commonwealth sentences imposed after trial, and that the police involvement in the case did not impact the consistency of the verdicts. The Court also found that the Commonwealth prosecutor's role in the case was not relevant to the appeal. The Court therefore upheld the conviction but reduced the sentence to 4 years and 6 months imprisonment, with an aggregate non-parole period of two years and nine months.

Orders

Orders of the court

Convicted: 4 years 6 months imprisonment, aggregate non-parole period in relation to terms of imprisonment of two 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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Citations

R v Telfer [2016] NSWDC 421

Most Recent Citation

R v Rayfield [2017] NSWDC 174

Cases Citing This Decision

R v Rayfield [2017] NSWDC 174
Citation 1

…th) Cases Cited: R v Fuller [2010] NSWCCA 192 R v Asplund [2010] NSWCCA 316 R v Bozinovski [2009] NSWDC 200 R v McKenna [2015] NSWDC 250 R v Telfer [2016] NSWDC 421 R v Costello [2011] CA 39 Rampley v R [2010] NSWCCA 293 R v Gajjar [2008] VSCA 268 R v Shepheard [2008] ACTSC 116 Category: Sentence Parties: The Crown…

See all citing cases →

Cases Cited

Yucebasoglu v The Queen [2015] NSWCCA 226
Citation 1 (Para 90)

…o account. Nobody could argue to the contrary. The Crown refers to a number of decisions including R v Booth [2009] NSWCCA 89, Fitzgerald v The Queen [2015] NSWCCA 226, where the Court has pronounced upon the emphasis to be given to general deterrence in sentencing offences which involve exploiting children sexually…
R v De Leeuw [2015] NSWCCA 183
Citation 2 (Para 71)

…The Crown also cited another decision, De Leeuw [2015] NSWCCA 183. I have no doubt that the summary of the principles arising from that judgment, set out at [72] of the judgment, are entirely correct. But it should be pointed out by reference to the Crown’s own summary, at para 38, that a number of the features or p…
Barbaro v The Queen [2014] HCA 2
Citation 3

…onwealth prosecutor, consistency of verdicts. Legislation Cited: Criminal Code 1995 (Cth) Crimes Act 19145 (Cth) Cases Cited: Barbaro v The Queen [2014] HCA 2 Bugmy v The Queen (1990) 169 CLR 525 Fitzgerald v The Queen [2015] NSWCCA 226 Hilli v The Queen [2010] HCA 45 Makarian v The Queen [2005] HCA 25 Mill v T…
R v Lee [2013] WASCA 216
Citation 4 (Para 69)

…ons was a judgment of the District Court in 2009 of Curran . The other decision was a decision of Lee by the West Australian Supreme Court of Appeal, [2013] WASCA 216, particularly at [27] and [33]. Whilst I accept the general principle that general deterrence is a relevant matter - I have already made that point -…
R v Asplund [2010] NSWCCA 316
Citation 5 (Para 68)

…With regard to some of the authorities though, I note in relation, for example, to the decision of Apslund [2010] NSWCCA 316, particularly at [50]-[51], whilst there can be no argument with the general principles enunciated by the then Chief Judge at Common Law, the issue of predation is a matter of degree, as was r…
Hili v The Queen [2010] HCA 45
Citation 6 (Para 81)

…The only matter of significance in terms of consideration of other matters is what flows from the decision of the High Court in Hilli v The Queen [2010] HCA 45, which deals with the fixing of minimum terms and the need to take into account sentencing across the Commonwealth. I have already dealt with the issue o…
R v Booth [2009] NSWCCA 89
Citation 7 (Para 90)

…e is a significant matter to be taken into account. Nobody could argue to the contrary. The Crown refers to a number of decisions including R v Booth [2009] NSWCCA 89, Fitzgerald v The Queen [2015] NSWCCA 226, where the Court has pronounced upon the emphasis to be given to general deterrence in sentencing offences…
Markarian v The Queen [2005] HCA 25
Citation 8 (Para 79)

…I need to be for the purposes of any sentencing exercise in the context of the principles laid down by the High Court in Makarian v The Queen [2005] HCA 25 , I would regard the offences contrary to s 474.19 as below the mid-range but slightly so. The offences said to be grooming offences contrary to s 474.27 wou…
Pearce v The Queen [1998] HCA 57
Citation 9 (Para 82)

…lly, in dealing with so many offences, I am required to reflect the totality of the criminality in the context of the observations of the majority in Pearce v The Queen (1998) 194 CLR 610, particularly at [45] and more thoroughly discussed in the earlier decision of Mill v The Queen (1988) 166 CLR 59.…
Bugmy v The Queen [1990] HCA 18
Citation 10 (Para 79)

…elevant consideration to be identified in fixing non-parole periods, particular Power v The Queen (1974) 131 CLR 623, and of course Bugmy v The Queen (1990) 169 CLR 525. In my view, the prisoner needs an extended period of supervision to enable him to receive appropriate assistance in a range of ways to, amongst othe…
Mill v The Queen [1988] HCA 70
Citation 11 (Para 82)

…the majority in Pearce v The Queen (1998) 194 CLR 610, particularly at [45] and more thoroughly discussed in the earlier decision of Mill v The Queen (1988) 166 CLR 59.…
Power v The Queen [1974] HCA 26
Citation 12 (Para 79)

…uthorities, some of long standing, relating to the relevant consideration to be identified in fixing non-parole periods, particular Power v The Queen (1974) 131 CLR 623, and of course Bugmy v The Queen (1990) 169 CLR 525. In my view, the prisoner needs an extended period of supervision to enable him to receive approp…

Legislation Cited

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 78)
Crimes Act 1914 (Cth)
1 mention (from Para 2)

Medium Neutral Citation:	R v TELFER [2016] NSWDC 421
Hearing dates:	14 June 2016 to 7 July 2016
Decision date:	16 September 2016
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Convicted: 4 years 6 months imprisonment, aggregate non-parole period in relation to terms of imprisonment of two years 9 months.
Catchwords:	CRIMINAL - Commonwealth sentence, after trial use of a carriage service to transmit or communicate offensive, indecent and other material, use of a carriage service for the transmission of “child pornography”, totality, aggregate non parole period, relevance of police involvement, role of Commonwealth prosecutor, consistency of verdicts.
Legislation Cited:	Criminal Code 1995 (Cth) Crimes Act 19145 (Cth)
Cases Cited:	Barbaro v The Queen [2014] HCA 2 Bugmy v The Queen (1990) 169 CLR 525 Fitzgerald v The Queen [2015] NSWCCA 226 Hilli v The Queen [2010] HCA 45 Makarian v The Queen [2005] HCA 25 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610 Power v The Queen (1974) 131 CLR 623 R v Apslund [2010] NSWCCA 316 R v Booth [2009] NSWCCA 89 R v De Leeuw [2015] NSWCCA 183 R v Poynder (2007) 171 A Crim R 544
Category:	Sentence
Parties:	Regina Ross Kenneth Telfer - Offender
Representation:	Counsel: Mr Catsanos – Commonwealth Crown Mr Williams – Offender Director of Public Prosecutions (Cth) - Crown Kyriacou Lawyers - Offender
File Number(s):	2012/140479