R v White - [2016] ACTSC 237

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v White
Citation:	[2016] ACTSC 237
Hearing Date:	19 August 2016
DecisionDate:	19 August 2016
Before:	Elkaim J
Decision:	(i) The convictions are confirmed. (ii) For the offence of possess child exploitation material contrary to s 65 of the Crimes Act 1900 (ACT), the offender is sentenced to a term of imprisonment of 2 years. (iii) For the offence of access child pornography material contrary to s 474.19(1) of the Criminal Code Act 1995 (Cth), the offender is sentenced to a term of imprisonment of 2 years, to run concurrently with the sentence imposed in respect of the other count. (iv) The 2 terms of imprisonment are suspended with immediate effect. (v) I make a Good Behaviour Order for a period of 3 years on condition that the offender report to ACT Corrective Services within 72 hours and accept all reasonable directions of the Director-General in respect of the counselling, programs or treatments as directed by the supervising officer. (vi) I impose a separate Recognizance Order for the Commonwealth offence for the same term and on the same conditions as those attached to the Good Behaviour Order detailed in the previous order. (vii) In respect of the Recognizance Order (vi), I order that the offender give security in the amount of $1,000.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – possess child pornography – use carriage service to access child pornography – early plea of guilty
Legislation Cited:	Crimes Act 1900 (ACT), s 65 Criminal Code Act 1995 (Cth), s 474.19(1)
Cases Cited:	Director of Public Prosecutions (Cth) v D’Alessandro (2010) 26 VR 477 Director of Public Prosecutions (Cth) v Garside [2016] VSCA 74 Director of Public Prosecutions (Cth) v Watson [2016] VSCA 73 R v De Leeuw [2015] NSWCCA 183 R v Porte [2015] NSWCCA 174 R v Verdins (2007) 169 A Crim R 581
Parties:	The Queen (Crown) Sean Dylan White (Offender)
Representation:	Counsel Mr E Chen (Crown) Mr K Archer (Offender)
Solicitors Commonwealth Director of Public Prosecutions (Crown) Darryl Perkins Solicitor (Offender)
File Number:	SCC 110 of 2016

ELKAIM J:

On 25 May 2016 the offender pleaded guilty to the following two offences:

(i)Possess child exploitation material on 26 November 2013, contrary to s 65 of the Crimes Act 1900 (ACT).
(ii)Access child pornography material between on or about 10 June 2013 and on or about 25 November 2013, contrary to s 474.19(1) of the Criminal Code Act 1995 (Cth).

The first count carries a maximum penalty of seven years imprisonment and/or a fine of $77,000. The second count carries a maximum penalty of 15 years imprisonment and/or a fine of $153,000.

The offender was born in 1994. He is now 22 years of age. He was brought up within a very supportive family.

When the offender was 12 years of age he was diagnosed with Asperger’s Syndrome. This is a matter of considerable significance in the conclusions that…

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 White

Details

AGLC: R v White [2016] ACTSC 237
Case: [2016] ACTSC 237
Decision Date: 19 August 2016

CaseChat Overview and Summary

The appellant, Mr White, was convicted of possessing child exploitation material and accessing child pornography material using a carriage service. The case was heard in the Magistrates Court of the Australian Capital Territory. The primary legal issue before the court was the appropriate sentence for Mr White, considering his early guilty plea and the nature of his offences. Additionally, the court needed to balance the seriousness of the offences with the potential for rehabilitation and the need to protect the community.

The court acknowledged Mr White's early guilty plea, which reduced the severity of his sentence. The court also considered the impact of his offences on society and the need to deter similar conduct in the future. However, the court recognised the importance of rehabilitation and the potential for Mr White to reintegrate into society without further offending. After weighing these factors, the court decided to suspend the sentences for the two offences, imposing a Good Behaviour Order and a Recognizance Order instead. This decision aimed to provide Mr White with an opportunity for rehabilitation while ensuring the safety of the community.

In addition to the suspended sentences, the court imposed a Good Behaviour Order and a Recognizance Order, both for a period of three years. These orders required Mr White to report to ACT Corrective Services within 72 hours and comply with all reasonable directions from the Director-General regarding counselling and treatment programs. The court also ordered Mr White to provide security in the amount of $1,000 for the Recognizance Order. These conditions were intended to monitor Mr White's activities and ensure that he did not reoffend during the period of the orders. The court's decision to suspend the sentences and impose these orders reflected a balanced approach that considered both the seriousness of the offences and the potential for Mr White's rehabilitation.

Orders

Orders of the court

(i) The convictions are confirmed.

(ii) For the offence of possess child exploitation material contrary to s 65 of the Crimes Act 1900 (ACT), the offender is sentenced to a term of imprisonment of 2 years.

(iii) For the offence of access child pornography material contrary to s 474.19(1) of the Criminal Code Act 1995 (Cth), the offender is sentenced to a term of imprisonment of 2 years, to run concurrently with the sentence imposed in respect of the other count.

(iv) The 2 terms of imprisonment are suspended with immediate effect.

(v) I make a Good Behaviour Order for a period of 3 years on condition that the offender report to ACT Corrective Services within 72 hours and accept all reasonable directions of the Director-General in respect of the counselling, programs or treatments as directed by the supervising officer.

(vi) I impose a separate Recognizance Order for the Commonwealth offence for the same term and on the same conditions as those attached to the Good Behaviour Order detailed in the previous order.

(vii) In respect of the Recognizance Order (vi), I order that the offender give security in the amount of $1,000.

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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