SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v XH |
Citation: | [2024] ACTSC 370 |
Hearing Dates: | 26 August 2024 and 7 November 2024 |
Decision Date: | 19 November 2024 |
Before: | Loukas-Karlsson J |
Decision: | See [117] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – produce child abuse material for use through carriage service |
Legislation Cited: | Crimes Act 1914 (Cth) ss 16A, 16A(1), 16A(2), 16A(2AAA), 17A, 19AC(1)(b), 19AC(3), 20(1), 20(1)(b)(ii), 20(1B), pt 1B Criminal Code Act 1995 (Cth) ss 474.23 Victims of Crime ACT 1994 |
Cases Cited: | Boulton v The Queen [2014] VSCA 342; 46 VR 308 Bugmy v The Queen (1990) 169 CLR 525 DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 DPP (Cth) v Garside [2016] VSCA 74; 50 VR 800 Deakin v The Queen (1984) 58 ALJR 367; 11 A Crim R 88 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Ponniah v The Queen [2011] WASCA 105 Power v The Queen (1974) 131 CLR 623 R v Dunnicliff [2023] ACTSC 350 R v Harrington [2016] ACTCA 10; 11 ACTLR 215 R v Hutchinson [2018] NSWCCA 152 R v Kilic [2016] HCA 48; 259 CLR 256 R v LS; R v MH [2020] NSWCCA 148 R v Tootell; ex parte Attorney-General (Qld) [2012] QCA 273 R v Verdins [2007] VSCA 102; 16 VR 240 |
Texts Cited: | Explanatory Memorandum, Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) |
Parties: | Commonwealth Director of Public Prosecutions XH ( Offender) |
Representation: | Counsel C Pascoe ( CDPP) B Morrisroe ( Offender) |
| Solicitors Commonwealth DPP Tim Sharman Solicitors ( Offender) | |
File Number: | SCC 204 of 2024 |
LOUKAS-KARLSSON J:
Introduction
1․On 4 July 2024, Mr XH (the offender) pleaded guilty to the following offence:
(a)An offence (CC2024/6649) of possessing, controlling, producing, supplying or obtaining child abuse material for use through a carriage service, contrary to s 474.23 Criminal Code Act 1995 (Cth). The maximum penalty for this offence is 15 years’ imprisonment.
Agreed facts
2․The agreed facts are set out in the Agreed Statement of Facts, which forms part of the Prosecution Tender Bundle. It is disturbing reading. Nevertheless, the facts should be summarised for the purpose of sentencing the offender. The agreed facts may be summarised as follows.
Offending
3․Between 01 May 2023 and 16 May 2024, the offender wrote a detailed story which contained child abuse material. The story depicted the sexual abuse of a female child who was “based on the offender’s 11-year-old stepdaughter” with the same name. The fictional character in the story was 17 years of age for most of the…
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- AGLC
- R v XH [2024] ACTSC 370
- Case
- [2024] ACTSC 370
- Decision Date
CaseChat Overview and Summary
The legal issues the court was required to decide included the severity and type of penalty that would be appropriate in the circumstances. The court had to consider the principles of sentencing under the Sentencing Act 1991 (Vic), including the need for punishment, deterrence, and rehabilitation. The court also needed to assess the impact of the offence on the victims, the culpability of the defendant, and any mitigating factors.
The court's reasoning focused on the gravity of the offence and the need to protect children from such material. The court recognised that producing child abuse material for distribution through a carriage service was a serious violation of the law, with significant potential harm to children. The court considered the defendant's background, but found that no significant mitigating factors were present. The court ultimately determined that a custodial sentence was necessary to adequately address the seriousness of the offence and to provide deterrence. The court imposed a sentence of imprisonment with specific conditions regarding the defendant's rehabilitation and supervision post-release.
The final orders included a custodial sentence, as well as specific directives for the defendant's supervision and rehabilitation during and after the term of imprisonment. The court also mandated that the defendant participate in a program designed to address the underlying issues that contributed to the offending behaviour.
Orders
Orders of the court
See [117]
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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