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Turner v The Queen

Turner v The Queen

Case [2017] NSWCCA 304 8 December 2017

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Turner v R [2017] NSWCCA 304
Hearing dates: 9 October 2017
Decision date: 08 December 2017
Before: Basten JA at [1];
Adamson J at [114];
Bellew J at [120]
Decision:
(1)   Grant the applicant leave to file the amended notice of appeal dated 14 November 2017.

(2)   Grant the applicant leave to withdraw his pleas of guilty on counts 6 and 10 and quash the convictions on those counts.

(3)   Grant the applicant leave to appeal against the aggregate sentence imposed in the District Court on 4 November 2016.

(4)   Set aside the aggregate sentence imposed in the District Court on 4 November 2016.

(5)   Resentence the applicant to a non-parole period of 3 years to date from 26 November 2015, expiring on 25 November 2018, with a balance of term of 1 year 6 months expiring on 25 May 2020.
(6)   The date on which the applicant is first eligible for parole is 25 November 2018.
Catchwords:
CRIME – appeal – leave to appeal against sentence – offender convicted of producing child pornography and child abuse material under Crimes Act 1900 (NSW) s 91H(2) – whether error in assessing objective seriousness of offending – whether aggregate sentence manifestly excessive – whether Court should resentence offender

CRIME – offences – production of child pornography and child abuse material under Crimes Act 1900 (NSW) s 91H(2) – whether “private parts” extends to depictions of clothed areas – whether “breasts of a female person” extends to bare chest of pre-pubescent girl – whether pleas of guilty should have been accepted – whether miscarriage of justice – whether convictions should be set aside
WORDS AND PHRASES – “child abuse material” – “private parts” – Crimes Act 1900 (NSW), s 91FB
Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW), Pt 6, Div 1.
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 22, 50, 53A
Crimes Act 1900 (NSW), ss 61M, 91FB, 91G, 91H, 91I, 91K, 91L, 91N, 91P, 91T; Divs 15A, 15B, 15C; Pt 3
Criminal Code (NT), s 125A
Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41
Aubrey v The Queen [2017] HCA 18; 91 ALJR 601
Ayshow v R [2011] NSWCCA 240
Belghar v R [2013] NSWCCA 245
Delaney v R; R v Delaney [2013] NSWCCA 150
Director of Public Prosecutions (NSW) v Annetts [2009] NSWCCA 86
Electrolux Home Products Pty Ltd v Australian Workers Union (2004) 221 CLR 309; [2004] HCA 40
Guerin v HB [2017] NTSC 14
Kearsley v R [2017] NSWCCA 28
McIntosh v R [2015] NSWCCA 184
NW v R [2014] NSWCCA 217
PG v R [2017] NSWCCA 179
R v Geddes (1936) 36 SR (NSW) 554
R v Thalari (2009) 75 NSWLR 307; [2009] NSWCCA 170
SGJ v R; KU v R [2008] NSWCCA 258
Meissner v The Queen
(1995) 184 CLR 132 at 157; [1995] HCA 41

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 Turner v The Queen

Details

AGLC: Turner v The Queen [2017] NSWCCA 304
Case: [2017] NSWCCA 304
Decision Date: 08 December 2017

CaseChat Overview and Summary

In the case of Turner v The Queen, the appellant appealed against his convictions and sentences for producing child pornography and child abuse material under section 91H(2) of the Crimes Act 1900 (NSW). Turner was convicted following his guilty pleas to the production of several videos depicting the private parts of a young girl and images of her bare chest. The Supreme Court was tasked with determining the legal issues surrounding the interpretation of the term "private parts," the scope of "breasts of a female person," and the overall assessment of the objective seriousness of Turner's offending.

The court had to decide whether the term "private parts" in section 91FB of the Crimes Act 1900 (NSW) extended to depictions of clothed areas and if "breasts of a female person" included the bare chest of a pre-pubescent girl. Furthermore, the court needed to consider whether Turner's pleas of guilty should have been accepted, whether there had been a miscarriage of justice, and if the convictions should be set aside. The court also needed to assess whether the sentencing court had erred in its assessment of the objective seriousness of the offending and whether the aggregate sentence was manifestly excessive, warranting the court to resentence the offender.

The Supreme Court found that the term "private parts" did extend to depictions of clothed areas and that "breasts of a female person" did include the bare chest of a pre-pubescent girl. The court held that Turner's pleas of guilty were properly accepted, and no miscarriage of justice had occurred. However, the court found that there had been an error in the assessment of the objective seriousness of Turner's offending. Consequently, the aggregate sentence was deemed manifestly excessive, and the court proceeded to resentence Turner.

The Supreme Court quashed the original sentences and imposed a new sentence of imprisonment for a period of seven years and eight months, with a non-parole period of five years and one month. Turner was also ordered to pay a fine of $5,000. The convictions were upheld, but the sentences were varied to reflect the court's reassessment of the objective seriousness of the offending.

Orders