R v Wheatley

[2007] ACTCA 15

THE QUEEN v PETER JAMES WHEATLEY [2007] ACTCA 15 (9 May 2007)

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 43 - 2006
No. SCC 157 of 2004

Judges:        Crispin P, Gray and North JJ
Court of Appeal of the Australian Capital Territory
Date:           9 May 2007

IN THE SUPREME COURT OF THE       )          No. ACTCA 43 - 2006
  )          No. SCC 157 of 2004
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:THE QUEEN

Appellant

AND:PETER JAMES WHEATLEY

Respondent

ORDER

Judges:  Crispin P, Gray and North JJ
Date:  9 May 2007
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

IN THE SUPREME COURT OF THE       )          No. ACTCA 43 - 2006
  )          No. SCC 157 of 2004
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:THE QUEEN

Appellant

AND:PETER JAMES WHEATLEY

Respondent

Judges:  Crispin P, Gray and North JJ
Date:  9 May 2007
Place:  Canberra

REASONS FOR JUDGMENT

CRISPIN P:

1. This is a Crown appeal against the perceived leniency of a sentence imposed upon the respondent in respect of one count of possession of child pornography.

1. The indictment, following amendment, alleged that between 4 June 2003 and 29 August 2003, at Canberra, the respondent knowingly possessed compact disks depicting young persons engaged in acts of a sexual nature, being depictions that would offend a reasonable adult person.  Section 65 of the Crimes Act (1900) prohibits the possession of child pornography and provides a maximum penalty of imprisonment for a period of 5 years.

1. The sentencing Judge imposed a sentence upon the respondent of 12 months imprisonment, but ordered that it be fully suspended immediately upon the condition that he enter into a recognizance, himself in the sum of $2,000, to be of good behaviour for a period of 18 months and obey any reasonable directions of the Director of Adult Corrective Services in relation to further counselling.

1. The offence came to light on 29 August 2003 when the police executed a search warrant at the respondent’s home and found a black bag containing seven compact disks.  The disks were subsequently examined both by the Australian Federal Police and by a paediatrician and found to contain numerous pornographic images and videos depicting young children in sexual poses and/or engaged in sexual acts with other children and adults.  The paediatrician made an assessment of the age of the children shown in the images in the videos and noted that they included children as young as four.

1. The principles that govern appeals of this nature are well established.  A sentence is a discretionary judgment and an appellate court may interfere with it only if some error can be identified.  It may, of course, be an error of principle or an error of…