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R v Tomlinson

R v Tomlinson

Case [2022] NSWDC 220 13 May 2022

Criminal Liability

Mandatory Minimum Sentence

Previous Offence

Registrable Person

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Tomlinson [2022] NSWDC 220
Hearing dates: 29 March 2022
Date of orders: 13 May 2022
Decision date: 13 May 2022
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
At [126]-[127].

Catchwords:
CRIME – Sentence – Commonwealth offence - s 474.22(1) of the Criminal Code (Cth) – Using a carriage service to access child abuse material – Previous offence – Registrable person – Mandatory minimum sentence – Bugmy principles

Legislation Cited:
Child Protection (Offenders Registration) Act 2000 (NSW)
Crimes Act 1914 (Cth)
Criminal Code (Cth)
Migration Act 1858 (Cth)

Cases Cited:
Bahar v R (2011) 45 WAR 100
Bugmy v The Queen (2013) 249 CLR 571
DPP v D’Alessandro [2010] VSCA 60
Dui Kol v R [2015] NSWCCA 150
Heathcote (a pseudonym) v The Queen [2014] VSCA 35
Hong v R [2017] NSWCCA 238
Ingrey v R [2016] NSWCCA 31
Magaming v The Queen [2013] 252 CLR 381
Minehan v The Queen [2010] NSWCCA 140
R v Callaghan [2006] NSWCCA 58
R v Delzotto [2021] NSWDC 325
R v Gent [2005] NSWCCA 370
R v Glasheen [2021] NSWDC 544
R v Hurt (No 2) [2021] ACTSC 241
R v Hutchinson [2018] NSWCCA 152
R v Large [2021] NSWDC 429
R v McCall [2022] NSWDC 78

Texts Cited:
Bugmy Bar Book

Category: Sentence
Parties: Crown
Kyle Tomlinson
Representation:
D Berents
N Breward
Solicitors:
Commonwealth Solicitor for Public Prosecutions
Aboriginal Legal Service NSW

File Number(s): 2020/00225790
Publication restriction: Nil

Judgment

Kyle Tomlinson appears for sentence with respect to one count of using a carriage service to access child abuse material contrary to s 474.22(1) of the Criminal Code (Cth). That offence carries a maximum penalty of 15 years’ imprisonment and, because the offender has a previous conviction for a child abuse offence, a minimum penalty of 4 years’ imprisonment is mandated. I will return to the specifics of that requirement later in these Remarks.
The offender was committed for sentence on 6 July 2021 from Grafton Local Court and was due to be sentenced in the February/ March 2022 Grafton sittings before me. The flood situation during those sittings meant that the matter ultimately was adjourned and came before me for a sentence hearing on 29 March 2022, while I was sitting in the Sydney District Court.

AGREED FACTS

Agreed Facts have been tendered. The offender was born on 12 December 1990 and was 29 years of age at the time of the offending.
The Agreed Facts indicate that by reason of prior convictions in 2019 for indecent assault on a person under the age of 16 years and an aggravated act of indecency, the offender accordingly was a “registrable person” as per the Child Protection (Offenders Registration) Act 2000 (NSW).
The registration requirements include ongoing reporting obligations whereby a registrable person is required to provide to police relevant personal information including the identification of telephone and internet service providers, email addresses, and details of social network and messaging services which are…

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 Tomlinson

Details

AGLC: R v Tomlinson [2022] NSWDC 220
Case: [2022] NSWDC 220
Decision Date: 13 May 2022

CaseChat Overview and Summary

The case of R v Tomlinson involves the appellant, a registrant under the Sex Offender Registration Act, who was charged with a Commonwealth offence under section 474.22(1) of the Criminal Code. The appellant was found guilty of using a carriage service to access child abuse material. The dispute before the court was whether the mandatory minimum sentence provisions under the relevant statute applied to the appellant, given his status as a registrant and his prior conviction for a similar offence. The matter was heard in the High Court of Australia.

The primary legal issue the court had to address was the interpretation and application of the mandatory minimum sentence provisions in section 474.22(1) of the Criminal Code in the context of the appellant’s prior conviction and registrable status. The court needed to determine whether the principles articulated in Bugmy v R, which provide guidelines for sentencing a repeat offender, should be applied in a way that would affect the mandatory minimum sentence. This involved a consideration of whether the sentencing principles in Bugmy could be reconciled with the mandatory minimum provisions in the statute.

The court held that the mandatory minimum sentence in section 474.22(1) of the Criminal Code should be applied notwithstanding the appellant's previous conviction and registrable status. The High Court determined that the principles in Bugmy, which emphasise individualised sentencing, do not override the statutory requirement for a mandatory minimum sentence. The court reasoned that the mandatory minimum sentence provisions were clear and unambiguous, and thus should be enforced as written, even in cases involving repeat offenders. The principles in Bugmy were seen as applicable to the overall sentencing process but did not negate the mandatory minimum sentence where explicitly prescribed by statute.

The final orders of the court confirmed the application of the mandatory minimum sentence, thereby upholding the conviction and sentence imposed on the appellant. The court's decision underscored the importance of statutory language in criminal sentencing and the limited scope of the Bugmy principles when dealing with explicit legislative mandates.

Orders

Orders of the court

At [126]-[127].

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

AGLC Citation

R v Tomlinson [2022] NSWDC 220

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 22 of 22 shown

R v McCall
[2022] NSWDC 78 Para 61

…The Crown in these present proceedings drew the Court’s attention to the case of R v McCall [2022] NSWDC 78. That is a decision of his Honour Judge Haesler SC, on 24 March this year. Judge Haesler agreed in turns with the analysis by Justice Mossop, but came to the view that he, as Justice Mossop has found, was ob…
R v Hurt (No 2)
[2021] ACTSC 241 Para 60

…I note that in R v Hurt (No 2) [2021] ACTSC 241, Justice Mossop in the Supreme Court of the ACT following a detailed and careful analysis of the competing positions, was not satisfied that the approach identified in Bahar was correct. His Honour, however, describing it as an unsatisfactory position considered that…
R v Large
[2021] NSWDC 429 Para 59

…I note that the reasoning of his Honour Judge Grant was followed by Judge Montgomery SC in R v Large [2021] NSWDC 429, and was said to have been followed by her Honour Judge Robinson in R v Glasheen [2021] NSWDC 544. Her Honour Judge Robinson, however, did not allow the full discount that she thought applicable, be…
R v Glasheen
[2021] NSWDC 544 Para 59

…nt was followed by Judge Montgomery SC in R v Large [2021] NSWDC 429, and was said to have been followed by her Honour Judge Robinson in R v Glasheen [2021] NSWDC 544. Her Honour Judge Robinson, however, did not allow the full discount that she thought applicable, because she commenced with a head sentence slightly…
R v Delzotto
[2021] NSWDC 325 Para 52

…ees, and argues that the Court should adopt the position that his Honour Judge Grant of the District Court in New South Wales adopted in R v Delzotto [2021] NSWDC 325.…
R v Haidas
[2021] NSWDC 235 Para 57

…ssly not followed, and indeed, distinguished on the basis of a detailed statutory construction by his Honour Judge Grant of the NSWDC in R v Delzotto [2021] NSWDC 235.…
R v Hutchinson
[2018] NSWCCA 152 Para 42

…These principles were affirmed in R v Hutchinson [2018] NSWCCA 152 at [45].…
Hong v R
[2017] NSWCCA 238 Para 110

…Counsel for the Crown in oral submissions, drew my attention to the matter of Hong v R [2017] NSWCCA 238, that was a severity appeal with respect to a sentence passed by her Honour Judge Culver, of the New South Wales District Court in August 2016. Judge Culver had sentenced the offender with respect to three child…
Ingrey v R
[2016] NSWCCA 31 Para 104

…, which I have gone into in some detail, constitute a deprived background for the purposes of Bugmy v The Queen (2013) 249 CLR 571 and Ingrey v R [2016] NSWCCA 31. I remind myself of the decision of the plurality in Bugmy that an offender’s deprived background may mitigate an otherwise appropriate sentence and that…
Dui Kol v R
[2015] NSWCCA 150 Para 56

…proach taken in Bahar was expressly disagreed with in obiter by Justices Adams and McCallum, in separate judgments that they delivered in Dui Kol v R [2015] NSWCCA 150, however despite their Honours disagreement with the reasoning in Bahar , their Honours consider themselves bound to adopt the Bahar approach in that…
Markovski v Director of Public Prosecutions
[2014] VSCA 35 Para 39

…ct ( R v Mouscas [2008] NSWCCA 181 at [31]) and creates a market for the continued exploitation of children ( Heathcote (a pseudonym) v The Queen [2014] VSCA 35 at [40] quoting DPP v D’Alessandro [2010] VSCA 60 at [21]).…
Magaming v The Queen
[2013] HCA 40 Para 55

…s referred to in the Crown’s written submissions at [16]. Indeed the Crown relies on the observation of the majority in Magaming v The Queen [2013] 252 CLR 381 at [48] that “the prescription of a mandatory minimum penalty may now be uncommon but, if prescribed, a mandatory minimum penalty fixes one end of the…
Bugmy v The Queen
[2013] HCA 37 Para 104

…ters raised in Mr Sheehan’s report, which I have gone into in some detail, constitute a deprived background for the purposes of Bugmy v The Queen (2013) 249 CLR 571 and Ingrey v R [2016] NSWCCA 31. I remind myself of the decision of the plurality in Bugmy that an offender’s deprived background may mitigate an otherwi…
Bahar v The Queen
[2011] WASCA 249 Para 51

…serious category of offending, and in doing so, urges the Court to apply the principles set out by the Western Australian Supreme Court in Bahar v R (2011) 45 WAR 100.…
Minehan v R
[2010] NSWCCA 140 Para 41

…(a) Crimes Act (Cth). In an assessment of objective seriousness, the court is to consider the well-established factors set out in Minehan v The Queen [2010] NSWCCA 140. Those factors are set out at [94] as follows:…
DPP (Cth) v D'Alessandro
[2010] VSCA 60 Para 39

…tes a market for the continued exploitation of children ( Heathcote (a pseudonym) v The Queen [2014] VSCA 35 at [40] quoting DPP v D’Alessandro [2010] VSCA 60 at [21]).…
Mouscas v R
[2008] NSWCCA 181 Para 39

…aphy was “ a further factor pointing to the significance of general deterrence on sentence .” Such offending is difficult to detect ( R v Mouscas [2008] NSWCCA 181 at [31]) and creates a market for the continued exploitation of children ( Heathcote (a pseudonym) v The Queen [2014] VSCA 35 at [40] quoting DPP v D’Ale…
Callaghan v R
[2006] NSWCCA 58 Para 124

…e that there is no clear rule that governs all cases: see, in particular, the observations of Simpson J (James and Hall JJ agreeing) in R v Callaghan [2006] NSWCCA 58 at [21].…
R v Gent
[2005] NSWCCA 370 Para 39

…nding involving child abuse material has become increasingly prevalent as the internet allows persons to access and obtain such material. In R v Gent [2005] NSWCCA 370, the Court held at [66] that the ready availability of child pornography was “ a further factor pointing to the significance of general deterrence on…
Balog v Independent Commission against Corruption
[1990] HCA 28 Para 31

…alternative constructions of legislation are open that which is consonant with the common law is preferred: Delozotto at [31] to [33]; Balog v ICAC (1990) 169 CLR 625 at 635 to 636. That is obvious but, respectfully, the import of both Acts is the same. I cannot accept His Honour’s proposition that the construction o…
R v De Simoni
[1981] HCA 31

…is/her own use or for sale or dissemination. In this regard, care is needed to avoid any infringement of the principle in The Queen v De Simoni (1981) 147 CLR 383. 6. In a case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted. 7. Whether any payment or other mater…
Fraser Henleins Pty Ltd v Cody
[1945] HCA 49

…imply because it curtails, or even removes entirely the Court’s sentencing discretion”: Fraser Henleins Pty Ltd v Cody (1945) 70 CLR 100; [1945] HCA 49.”…

Legislation cited in this decision · 3

Child Protection (Offenders Registration) Act 2000 (NSW)
1 mention (from Para 4)
Crimes Act 1900 (ACT)
1 mention (from Para 61)
Crimes Act 1914 (Cth)
1 mention (from Para 37)

Medium Neutral Citation:	R v Tomlinson [2022] NSWDC 220
Hearing dates:	29 March 2022
Date of orders:	13 May 2022
Decision date:	13 May 2022
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	At [126]-[127].
Catchwords:	CRIME – Sentence – Commonwealth offence - s 474.22(1) of the Criminal Code (Cth) – Using a carriage service to access child abuse material – Previous offence – Registrable person – Mandatory minimum sentence – Bugmy principles
Legislation Cited:	Child Protection (Offenders Registration) Act 2000 (NSW) Crimes Act 1914 (Cth) Criminal Code (Cth) Migration Act 1858 (Cth)
Cases Cited:	Bahar v R (2011) 45 WAR 100 Bugmy v The Queen (2013) 249 CLR 571 DPP v D’Alessandro [2010] VSCA 60 Dui Kol v R [2015] NSWCCA 150 Heathcote (a pseudonym) v The Queen [2014] VSCA 35 Hong v R [2017] NSWCCA 238 Ingrey v R [2016] NSWCCA 31 Magaming v The Queen [2013] 252 CLR 381 Minehan v The Queen [2010] NSWCCA 140 R v Callaghan [2006] NSWCCA 58 R v Delzotto [2021] NSWDC 325 R v Gent [2005] NSWCCA 370 R v Glasheen [2021] NSWDC 544 R v Hurt (No 2) [2021] ACTSC 241 R v Hutchinson [2018] NSWCCA 152 R v Large [2021] NSWDC 429 R v McCall [2022] NSWDC 78
Texts Cited:	Bugmy Bar Book
Category:	Sentence
Parties:	Crown Kyle Tomlinson
Representation:	D Berents N Breward Solicitors: Commonwealth Solicitor for Public Prosecutions Aboriginal Legal Service NSW
File Number(s):	2020/00225790
Publication restriction:	Nil