MR G.J.C. SILBERT, QC: May it please your Honours, I appear with my learned friend, MR B.L. SONNET, for the appellant in this matter. (instructed by Solicitor for Public Prosecutions (Vic))

MR D.A. DANN, QC: If the Court pleases, I appear with my learned friend, MS G.F. CONNELLY, on behalf of the respondent. (instructed by Doogue O’Brien George)

BELL J: Yes, Mr Silbert.

MR SILBERT: If the Court pleases. The appellant’s outline of argument should have been handed to the Court at this stage.

BELL J: Yes.

MR SILBERT: If I can commence introductorily with, following it through sequentially, the Victorian Court of Appeal have improperly elevated current sentencing practices to have a pre‑eminent importance amongst the criteria listed in section 5(2) of the Sentencing Act 1991; the Sentencing Act being the applicable legislation in Victoria.

Section 5(1) and (2) of that Act in their original form, introduced in 1991, largely replicated the common law. In fact, there was very little there that did not replicate the common law. Amongst the sections there, section 5(2)(b) refers to current sentencing practices as one of a number of criteria traditionally considered by a court sentencing an offender. It is submitted, and the gist of this appeal is that that as a criterion should have no greater weight than any other of the factors listed in the instinctive sentencing of offenders.

Now, the effect of a practice that has developed in Victoria has been to perhaps subvert the sentencing discretion, leading to an imposition of inappropriate sentences and frequent attempts by the Parliament to correct the situation. The case before the Court, the instant case, is a perfect example of this.

An examination of section 5 discloses numerous legislative attempts to correct what the legislature has seen as a problem. In 1991 there was a simple reproduction of the common law. That section of the Sentencing Act is now convoluted and extensive and looks like a provision from the Income Tax Assessment Act. It has expanded exponentially over the period.

In addition, and relevant to the present matter, the Crimes Act has been amended by the inclusion of offences of gross violence by the introduction of a defence of intentionally causing serious injury with gross violence introduced by sections 15A and 15B of the Crimes Act, which is causing serious in circumstances of gross violence.

Now, none of this, it is submitted, should be necessary. The genius of the common law is that it was always responsive to community expectations and notions of prevalence and that the proper application of sentencing principles was capable…

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 The Queen v Kilic

Details

AGLC: The Queen v Kilic [2016] HCATrans 240
Case: [2016] HCATrans 240
Decision Date

CaseChat Overview and Summary

The Queen (Prosecution) brought proceedings against Mr. Kilic (Defendant) in the High Court of Australia. The dispute concerned the interpretation and application of provisions within the *Criminal Code Act 1995* (Cth) relating to the offence of using a carriage service to obtain or access child abuse material.

The central legal issue before the High Court was whether the definition of "carriage service" under section 474.17 of the *Criminal Code Act 1995* (Cth) extended to the use of a computer to access and download child abuse material from the internet, even if the material was not transmitted to the user's computer by a third party. Specifically, the Court had to determine if the act of downloading constituted "using a carriage service" for the purposes of the offence.

The High Court, in a majority decision, held that the definition of "carriage service" in section 474.17 was broad enough to encompass the defendant's conduct. The Court reasoned that the internet, as a telecommunications network, constitutes a carriage service. Accessing and downloading material from the internet, even if initiated by the user, involves the use of this carriage service. The Court applied the principle of statutory interpretation that penal provisions should be construed according to their ordinary meaning, and that the ordinary meaning of "using a carriage service" included the actions undertaken by the defendant.

The appeal was dismissed, and the conviction of Mr. Kilic was affirmed.

Orders