Site Logo

Burton v The Queen [2020] NSWCCA 127

appeal against sentence — use carriage service to transmit child pornography material offence contrary to s 474.19(1) of the Commonwealth Criminal Code — additional State offence — additional use carriage service to transmit indecent material to persons under the age of 16 years offence contrary to s 474.27A(1) of the Commonwealth Criminal Code taken into account pursuant to s 16BA — original sentence imposed 21 months imprisonment with a 12 month non-parole period — nature and circumstances of the offence — s 16A(2)(a) — sentencing judge well aware no child victims of offence of Count 1 but nevertheless concluded it was a mid-range offence — in doing so appears sentencing judge clearly considered other matters informing that question were sufficient to support their conclusion — sentencing judge patently concerned with highly inappropriate and sexualised content of written material produced by offender — must be remembered that offence is committed by transmission of material that qualifies as child exploitation material — seriousness of offence of transmission is necessarily informed by nature and content of material itself — that is something sentencing judge clearly directed their attention — offender used explicit language to describe sexual acts between themselves and children — sentencing judge must be taken, in accordance with authority, to have understood importance of attaching possibility of dissemination of this written material to vulnerable recipients or those susceptible to acts in the ways the offender described — not satisfied sentencing judge’s assessment of objective seriousness of Count 1 has been shown to be erroneous — manifest excess — do not accept sentencing judge’s sentences were manifestly excessive — characterisation of Count 1 as offence falling within mid-range of objective seriousness is in tension with sentence actually imposed for that count but in a way actually favoured offender — sentencing judge obviously took account of offender’s strong subjective case and of opinions from medical specialists dealing with their psychiatric condition and their commendable attempts to overcome it — sentences imposed by sentencing judge were not erroneously severe — appeal dismissed
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

© 2023 The National Judicial College of Australia (NJCA). Powered by

Privacy Policy|Terms and Conditions