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Rivo v The Queen

Rivo v The Queen

Case [2012] VSCA 117 29 May 2012

Criminal Liability

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0309

ROGER RIVO	Applicant
	v
THE QUEEN	Respondent

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JUDGES:	NEAVE and OSBORN JJA and KING AJA
WHERE HELD:	GEELONG
DATE OF HEARING:	29 May 2012
DATE OF JUDGMENT:	29 May 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 117
JUDGMENT APPEALED FROM	R v Rivo (Unreported, County Court of Victoria, Judge Campton, 28 October 2011)

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CRIMINAL LAW – Application for leave to appeal against sentence – Criminal Code Act 1995 (Cth) s 474.19 – Offender causing child pornography to be transmitted to himself – Criminal Code Act 1995 (Cth) s 272.14 – Engaging in conduct to procure children to engage in sexual activity outside Australia – manner in which offender caused material to be transmitted – nature of pornographic content of material – Directness of relationship with production of pornographic material and sexual activity of children – Relevance of consequences of offending to factors of specific and general deterrence – Not reasonably arguable sentencing judge had regard to irrelevant considerations – Not reasonably arguable sentence manifestly excessive – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C Carr	Wightons Lawyers
For the Respondent	Mr J Gullaci	Commonwealth Director of Public Prosecutions

NEAVE JA
OSBORN JA
KING AJA:

This is an application for leave to appeal against sentences imposed by her Honour Judge Campton in respect of two rolled up charges relating to the procuring of child pornography constituted by live sex shows in the Philippines.

On 20 October 2011, the applicant pleaded guilty at the Geelong County Court before her Honour Judge Campton to an indictment containing the following two counts:

(a) Count 1 - Causing child pornography material to be transmitted to himself contrary to s 474.19(1) of the Criminal Code (Cth); and

(b) Count 2 - Engaging in conduct to procure children under the age of 16 to engage in sexual activity outside Australia contrary to s 272.14(1) of the Criminal Code (Cth).

On 28 October 2011, her Honour sentenced the applicant as follows:

(a) On count 1 – four years’ imprisonment; and

(b) On count 2 - six years’ imprisonment.

Her Honour stated that one year of the sentence imposed on count 1 was to be served cumulatively on the sentence imposed on count 2 giving a total effective sentence of seven years with a minimum non parole period of five years.

Charge on Indictment

Offence

Maximum

Sentence

Cumulation

1.

Causing child pornography material to be transmitted to himself contrary to s 474.19(1) of the Criminal Code (Cth)

10 years

4 years

1 year cumulative on the sentence imposed on count 2

2.

Engaging in conduct to procure children under the age of 16 to engage in sexual activity outside Australia contrary to s 272.14(1) of the Criminal Code (Cth)

15 years

6 years

Base sentence

Total Effective Sentence:

7 years

Non-Parole Period:

5 years

Pre-Sentence detention declared

167 days

6AAA Statement: The learned trial Judge stated that the sentence she would have imposed if…

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 Rivo v The Queen

Details

AGLC: Rivo v The Queen [2012] VSCA 117
Case: [2012] VSCA 117
Decision Date: 29 May 2012

CaseChat Overview and Summary

In Rivo v The Queen, the applicant, an offender convicted of engaging in conduct to procure children to engage in sexual activity outside Australia, sought leave to appeal against his sentence. The case was heard in the High Court of Australia. The applicant was found guilty of causing child pornography to be transmitted to himself, contrary to the Criminal Code Act 1995 (Cth) s 272.14, and engaging in conduct to procure children to engage in sexual activity outside Australia, contrary to the Criminal Code Act 1995 (Cth) s 272.14. The court was tasked with determining whether the applicant's application for leave to appeal against sentence should be granted, and whether the sentence was manifestly excessive or whether the sentencing judge had regard to irrelevant considerations.

The legal issues before the court involved the manner in which the applicant caused the material to be transmitted, the nature of the pornographic content of the material, the directness of the relationship between the production of pornographic material and the sexual activity of children, and the relevance of the consequences of the offending to the factors of specific and general deterrence. The applicant argued that the sentencing judge had not properly considered certain aspects of the offending and that the sentence was manifestly excessive. The court considered whether it was reasonably arguable that the sentencing judge had regard to irrelevant considerations or whether the sentence was manifestly excessive.

The court held that it was not reasonably arguable that the sentencing judge had regard to irrelevant considerations. The court also found that the sentence was not manifestly excessive. The court concluded that the sentencing judge had properly considered the relevant factors and that the sentence was within the range of appropriate sentences for the offending. The court refused the application for leave to appeal against sentence. The court did not consider it necessary to make any further orders.

Orders