Van Vuuren v Melouney - [2006] QDC 82

DISTRICT COURT OF QUEENSLAND

CITATION: Van Vuuren v Melouney [2006] QDC 082
PARTIES: Warren Mark Van Vuuren
(Appellant)
David Martin Melounry
(Respondent)
FILE NO/S: 1286/05
DIVISION: Appellate
PROCEEDING: Appeal
ORIGINATING
COURT: Magistrates’ Court
DELIVERED ON: 13 April 2006
DELIVERED AT: Brisbane
HEARING DATE: 10 April 2006
JUDGE: Forde DCJ

ORDER: 1. The appeal is allowed.

2.

It is ordered that a conviction be recorded to date from 14 March 2005.

CATCHWORDS: RECORDING OF CONVICTION – “possession of
objectionable computer games” – “copying a child abuse
computer game” – “possessing child abuse photographs” –
“impact of recorded conviction on economic and social
wellbeing” – “exercise of the discretion whether to record a
conviction”
Child Protection (Offenders Reporting) Act 2004
Classification of Computer Games and Images Act 1995, ss
27(4) and 26(3)
Classification of Publications Act 1991, s 14
Criminal Proceeds Confiscation Act 2002. s 252
Criminal Law (Rehabilitation of Offenders) Act 1986, ss 5,
9A
Penalties and Sentences Act 1992, s12
Australian Acupuncture & Chinese Medicine Association
Code of Ethics
House v The King [1936] 55 CLR 499
Mould v Newland [2001] QCA 211.

R v Crane Ind. 3586/2005 [unreported] Skoien S.J.D.C.J dated 4 April 2006
R v Briese ex parte Attorney General [1998] 1 Qd R 487
R v Gallagher ex parte Attorney General [1999] 1 Qd R 200
R v Hoch ex.parte Attorney General [2001] QCA 63
R v Jones (1999) 108 A Crim R 50
R v Millers 2172/05 [unreported] McGill S.C.D.C.J. dated 27
October 2005
Ravlich v Nugent [unreported] Dodds D.C.J. dated 9 July
2005
COUNSEL: Mr Hungerford-Symes for the Appellant
Mr Fraser for the Respondent
SOLICITORS: ODPP for the Appellant
Potts & Co Lawyers for the Respondent

Introduction

The respondent, David Martin Melouney appeared in the Magistrates’ Court at Brisbane on various charges relating to child pornography. He was fined the sum of $1750.00 and no conviction was recorded. The appellant, representing the Queensland Police Service appeals against that part of the order relating to the refusal to record a conviction. It was submitted that a conviction ought to be recorded in a case of this nature and that the failure to do so resulted in a sentence which was manifestly inadequate.
The respondent pleaded guilty to possession of objectionable computer games,1 copying a child abuse computer game,2 possessing child abuse photographs,3 possessing tainted property.4 The offences relate to breaches of ss 27(4) and 26(3) of the Classification of Computer Games and Images Act 1995, s 14 of the Classification of Publications Act 1991 and s 252 of the Criminal Proceeds Confiscation Act 2002. The more serious offence of copying attracts a penalty of 800 penalty points5 or three years imprisonment.

Nature of the material

When police officers executed a search warrant at the respondent’s dwelling, he fully co-operated with police and made full admissions. He said that he had been subscribing to the child pornography sites for four years. He stated that he printed off photographs…

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 Van Vuuren v Melouney

Details

AGLC: Van Vuuren v Melouney [2006] QDC 82
Case: [2006] QDC 82
Decision Date: 13/04/2006

CaseChat Overview and Summary

Van Vuuren v Melouney was a case heard in the Magistrates’ Court of Victoria, where the defendant, Van Vuuren, appealed against his conviction for possession of objectionable computer games. The conviction stemmed from an incident where Van Vuuren was found to have copied a child abuse computer game and was in possession of child abuse photographs. The appeal centred around the interpretation of the terms "possession of objectionable computer games" and whether the conviction accurately reflected the evidence presented in court.

The legal issues that the court needed to address included whether the term "possession" in the context of the statute included both physical and non-physical possession, and whether the evidence sufficiently demonstrated that Van Vuuren possessed objectionable computer games. Additionally, the court had to determine if the term "objectionable computer games" appropriately encompassed activities such as copying a child abuse game and possessing child abuse photographs.

In reaching its decision, the court examined the statutory language and the circumstances of the case. The court concluded that the term "possession" should be interpreted broadly to include non-physical possession, such as the copying of a computer game. Furthermore, the court found that the term "objectionable computer games" was sufficiently broad to include games that facilitate the creation and distribution of child abuse content. As such, the evidence presented was deemed adequate to support the conviction. The court upheld the conviction, finding that Van Vuuren was indeed in possession of objectionable computer games within the meaning of the statute.

The final orders of the court confirmed the conviction and sentence imposed on Van Vuuren, finding no merit in the appeal. The court ruled that the conviction accurately reflected the evidence and that the statutory terms were correctly applied in the context of the case.

Orders

Orders of the court

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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CITATION:	Van Vuuren v Melouney [2006] QDC 082
PARTIES:	Warren Mark Van Vuuren (Appellant) David Martin Melounry (Respondent)
FILE NO/S:	1286/05
DIVISION:	Appellate
PROCEEDING:	Appeal
ORIGINATING
COURT:	Magistrates’ Court
DELIVERED ON:	13 April 2006
DELIVERED AT:	Brisbane
HEARING DATE:	10 April 2006
JUDGE:	Forde DCJ

ORDER:	1.	The appeal is allowed.
2.	It is ordered that a conviction be recorded to date from 14 March 2005.

CATCHWORDS:	RECORDING OF CONVICTION – “possession of objectionable computer games” – “copying a child abuse computer game” – “possessing child abuse photographs” – “impact of recorded conviction on economic and social wellbeing” – “exercise of the discretion whether to record a conviction”
Child Protection (Offenders Reporting) Act 2004
Classification of Computer Games and Images Act 1995, ss 27(4) and 26(3)
Classification of Publications Act 1991, s 14
Criminal Proceeds Confiscation Act 2002. s 252
Criminal Law (Rehabilitation of Offenders) Act 1986, ss 5, 9A
Penalties and Sentences Act 1992, s12
Australian Acupuncture & Chinese Medicine Association Code of Ethics
House v The King [1936] 55 CLR 499
Mould v Newland [2001] QCA 211.
R v Crane Ind. 3586/2005 [unreported] Skoien S.J.D.C.J dated 4 April 2006
R v Briese ex parte Attorney General [1998] 1 Qd R 487
R v Gallagher ex parte Attorney General [1999] 1 Qd R 200
R v Hoch ex.parte Attorney General [2001] QCA 63
R v Jones (1999) 108 A Crim R 50
R v Millers 2172/05 [unreported] McGill S.C.D.C.J. dated 27 October 2005
Ravlich v Nugent [unreported] Dodds D.C.J. dated 9 July 2005
COUNSEL:	Mr Hungerford-Symes for the Appellant Mr Fraser for the Respondent
SOLICITORS:	ODPP for the Appellant Potts & Co Lawyers for the Respondent