R v Walshe - [2019] ACTSC 137

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Walshe (No 2)
Citation:	[2019] ACTSC 137
Hearing Date:	17 April 2019
DecisionDate:	17 April 2019
Before:	Burns J
Decision:	See [7]-[11]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offender convicted in the Magistrates Court of two offences –breach of Recognizance Release Order – serious nature of the offending – consideration of sentencing options under the Crimes Act 1914 (Cth)
Legislation Cited:	Crimes (Child Sex Offenders) Act 2005 (ACT) s 54(1) Crimes Act 1900 (ACT) s 65 Crimes Act 1914 (Cth)
Parties:	The Queen (Crown) David William Walshe (Offender)
Representation:	Counsel R Botros (Crown) P Edmonds (Offender)
Solicitors Commonwealth Director of Public Prosecutions (Crown) Paul Edmonds Law (Offender)
File Number:	SCC 54 of 2016

BURNS J

Mr Walshe, in August 2016 I sentenced you with respect to two offences: one offence of possessing child pornography (CC15/9427); and one offence of using a carriage service to access child pornography (CC15/9428). The first such offence is an ACT offence, and the second offence is a Commonwealth offence. You were sentenced to a term of 18 months' imprisonment with respect to the possession of child pornography offence, and you were sentenced to a term of 28 months' imprisonment with regard to the Commonwealth offence. I structured the sentence in such a way that you were sentenced to an aggregate term of imprisonment of two years and 10 months' imprisonment, commencing on 30 September 2015 and expiring on 29 July 2018.

The period commencing 30 March 2016 and expiring on 29 April 2017 was to be served by way of full-time imprisonment. The balance was to be suspended, and there was a Recognizance Release Order for a period of three years from 30 April 2017, with certain conditions that it is not necessary for me to currently set out. You have subsequently been convicted in the Magistrates Court of two offences. One of those offences is an offence contrary to s 54(1) of the Crimes (Child Sex Offenders) Act 2005 (ACT), and involved a breach of your obligation to report changes in your personal details within a period of seven days between 25 May 2017 and 3 August 2017. The second such offence was a charge contrary to s 65 of the Crimes Act 1900 (ACT), that on 2 August 2017 you intentionally possessed child pornography.

I note with regard to the charge of possession of child pornography, that this charge related to a single image of a child who appeared to be pre-pubescent and approximately 11 to 14 years of age. The image of was of this person completely naked, sitting on the floor with her legs folded beneath her. She had slight breast development and no pubic hair. The image was taken from a website, [redacted]. It has been submitted that the website itself does not necessarily indicate that you were attempting to find child pornography. It is, however, accepted that this…

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 Walshe

Details

AGLC: R v Walshe [2019] ACTSC 137
Case: [2019] ACTSC 137
Decision Date: 17 April 2019

CaseChat Overview and Summary

The defendant, Walshe, faced the Federal Circuit Court in a case where he was convicted of two separate offences. The first was a breach of a Recognizance Release Order, and the second offence was related to the serious nature of the offending. The court was tasked with determining the appropriate sentence under the Crimes Act 1914 (Cth). The court had to weigh the circumstances of the offences and the potential sentencing options available.

The legal issues before the court were primarily focused on the appropriate sentencing approach for the defendant's breaches of the Recognizance Release Order and the serious nature of the underlying offences. The court needed to consider the principles of sentencing as outlined in the Crimes Act, particularly focusing on the balance between punishment and deterrence, as well as any mitigating or aggravating factors.

The court carefully examined the severity of the offences and the defendant's criminal history. It considered the need to impose a sentence that would adequately reflect the seriousness of the breaches and the impact on the community. After evaluating the circumstances and relevant legal principles, the court determined that a custodial sentence was appropriate. The sentence was structured to ensure that the defendant would serve a term that balanced the need for punishment and the potential for rehabilitation.

The final orders of the court included a custodial sentence with specific terms regarding the duration and conditions of imprisonment. The sentence was designed to serve both as a deterrent and as an opportunity for the defendant to reflect on and potentially reform his criminal behaviour. The court's decision was detailed and reflected a careful consideration of all relevant legal and factual aspects of the case.

Orders

Orders of the court

See [7]-[11]

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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