R v Walshe
[2019] ACTSC 137
•17 April 2019
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) |
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 image was child pornography, and it is further accepted that it was deliberately saved by you to a folder on your computer.
A straight term of imprisonment of six months, commencing on 29 January 2019 and expiring on 28 July 2019 has been imposed in the Magistrates Court with respect to those offences. With regard to the sentences that I imposed in August 2016, there is currently a suspended portion of those sentences of 15 months outstanding. Under the provisions of the Crimes Act 1914 (Cth), there are a number of actions that I may take with regard to the present breach.
I may take no action. I may impose a monetary penalty of not more than $1,000. I may amend the orders that I made in 2016 so as to extend the period for which you are required to give security and to be of good behaviour, for up to a maximum of five years. I may revoke the Recognizance Release Order and make an order that your remaining period be served as an Intensive Corrections Order. I may revoke the order and deal with you for the offence or offences in respect of the order was made, by ordering that you be imprisoned for the suspended portion of the sentence which I imposed in August 2016.
It is not appropriate that I take no action or impose a monetary penalty. Neither of those sentencing options are appropriate with respect to the nature of the present offending. In my opinion, it is not appropriate to amend the order so as to extend the period of the Recognizance Release Order for up to a period of five years. It appears to me that you learned nothing from the sentence that I imposed on you in August 2016. You re‑offended within less than a month after being released on the terms of that Recognizance Release Order, and after having your obligations carefully explained to you. It is also, in my opinion, inappropriate, bearing in mind the nature of the offending and the serious nature of the offence of which you were convicted, to take the alternative of revoking the Recognizance Release Order and ordering that the remaining period be served as an Intensive Corrections Order.
In my opinion, the appropriate course is to revoke the Recognizance Release Order, and to impose the suspended term of 15 months' imprisonment. In determining when to commence that sentence, I take into account that a number of matters which are relevant to sentencing were taken into account, or indeed I have no doubt were taken into account, by the magistrate. I do not have a copy of the magistrate's sentencing remarks. But, as the prosecution has acknowledged in its written submissions, it is reasonable to infer that the magistrate would have given weight to your earlier criminal history, including the underlying offences with respect to this breach matter. It is also reasonable to infer that in passing sentence, the magistrate would have given weight to the fact that you were on conditional liberty at the time that the breach offending was committed. I therefore intend to backdate the commencement of the 15 months’ sentence which you will be liable to serve from 28 February 2019.
I will revoke the Recognizance Release Order that I made in August 2016, and you will be liable to serve the term of 15 months' imprisonment which had been suspended at that time, and that sentence will commence on 28 February 2019 and expire on 27 May 2020.
It was submitted on your behalf that disposing of this matter in this way would be disproportionate, in terms of the nature of the breach. I do not agree. What the breach establishes is that there is a little point in releasing you on any sort of conditional release order at the present time.
The Crimes Act 1914 (Cth) makes it clear that it is the intention of the legislature that in an appropriate case, and I am satisfied that this is one, the offender should be required to serve all of the sentence of imprisonment that was imposed as part of the original sentencing exercise. It was not suggested that the sentence of 28 months' imprisonment with regard to the Commonwealth matter was manifestly excessive at that time. I do not see how it can be suggested that the imposition of the remaining period of 15 months, in accordance with the intention of the legislature as revealed in the Crimes Act 1914 (Cth), can be said to be disproportionate.
Those are the orders that I make.
| I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: |
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Amendments
29 January 2020 Add “(No 2)” in Case Title
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