R v Waters - [2017] ACTSC 226

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Waters
Citation:	[2017] ACTSC 226
Hearing Date:	1 August 2017
DecisionDate:	1 August 2017
Before:	Burns J
Decision:	See [14].
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – using a carriage service to transmit a communication that included material that was indecent to a person who was under the age of 16 years old or a person believed to be under the age of 16 years old – plea of guilty – lower end of scale of offences – psychologist report – reasonable prospects of rehabilitation – Good Behaviour Order with supervision imposed.
Legislation Cited:	Criminal Code Act 1995 (Cth) s 474.27A
Parties:	The Queen (Crown) Mathew Waters (Offender)
Representation:	Counsel Mr T Ellison (Crown) Mr P Edmonds (Offender)
Solicitors Commonwealth Director of Public Prosecutions (Crown) Paul Edmonds and Associates (Offender)
File Number:	SCC 87 of 2017

On 6 April 2017, in the Magistrates Court, you entered a plea of guilty to one charge contrary to s 474.27A of the Criminal CodeAct 1995 (Cth) (‘the Criminal Code’) alleging that between 10 August 2016 and 6 October 2016, being a person aged 18 years or over, you used a carriage service to transmit a communication that included material that was indecent to a person who was under the age of 16 years old or a person you believed to be under the age of 16 years old.

Having entered that plea of guilty, you were committed for sentence to this Court. You have maintained your plea of guilty to that charge and it now falls to me to sentence you. I note with respect to the charge that the prosecution is based upon the allegation that you engaged in the communication with a person that you believed to be under the age of 16 years.

A Statement of Facts was tendered and I will not now recite the facts. It is sufficient to note that you initially engaged in message communications via Facebook Messenger with a 15-year-old male. However, that 15-year-old male and those who were responsible for him quickly notified the police and the police took over the conduct of the communication from that end. It is accepted that you did not form a belief that the complainant was under 16 years of age until 22 September 2016 and therefore I accept that you were not specifically targeting boys under the age of 16 years at the time that you entered into the communications with the complainant.

The most significant communication which occurred in terms of indecency was a request made by you for a shirtless image of the complainant. It has been accepted by the prosecution, and I think rightly so, that this request is at the lower end of the range of indecency which may fall within offences under s 474.27A of the Criminal Code. I therefore accept that the objective seriousness of this offence was towards the…

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 Waters

Details

AGLC: R v Waters [2017] ACTSC 226
Case: [2017] ACTSC 226
Decision Date: 1 August 2017

CaseChat Overview and Summary

The case of R v Waters involved the defendant, Waters, who was charged with using a carriage service to transmit a communication that included material that was indecent to a person under the age of 16 or a person believed to be under the age of 16. The case was heard in the court of first instance, which was the County Court of Victoria. The defendant entered a guilty plea to the charge, which was the use of a carriage service to transmit an indecent communication.

The primary legal issues that the court had to decide were the appropriate sentence for the offence and whether the circumstances warranted the imposition of a good behaviour order. The court considered the nature of the offence, the defendant's criminal history, and the likelihood of rehabilitation. The court also took into account the psychologist's report, which indicated that the defendant had reasonable prospects of rehabilitation.

The court considered the severity of the offence and the need to protect children from indecent material. The court also considered the defendant's guilty plea and the fact that this was his first offence. The court found that the offence was at the lower end of the scale of offences and that the defendant had reasonable prospects of rehabilitation. The court imposed a good behaviour order with supervision for a period of two years. The court also ordered that the defendant pay a fine of $1,000 and that he undertake 100 hours of community service.

In conclusion, the court imposed a sentence that reflected the seriousness of the offence while also taking into account the defendant's prospects of rehabilitation. The court's decision to impose a good behaviour order with supervision and community service was aimed at deterring the defendant from engaging in similar conduct in the future and promoting his rehabilitation. The court's orders reflect a balanced approach to sentencing that takes into account both the needs of the community and the needs of the offender.

Orders

Orders of the court

See [14].

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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