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R v Edwards [2019] QCA 15

leave to appeal against sentence — using a carriage service to access child pornography material offence contrary to s 474.19(1) of Commonwealth Criminal Code — original sentence imposed 15 months’ imprisonment with release on $500 recognizance after serving 2 months, on condition that subject to probation for 2 years — manifest excessobjective seriousness — sentence not manifestly excessive merely if markedly different from other sentences in other cases — necessary to demonstrate that difference is such that there must have been a misapplication of principle or that sentence is “unreasonable or plainly unjust” — no single correct sentence in any particular case — bulk of images, stories and videos fall into Category 6 of animated cartoons or drawings — central argument was that viewing or accessing Category 6 material was essentially a “victimless crime” because no real children were used in depicting them — wrong to categorise as victimless crime — capacity of child exploitation material, even that which does not depict real children, to affect community goes beyond tendency to normalise exploitative sexual activity involving children or stimulate potential participants in it — serves to fuel demand for such material, whether or not it involves real children — its impact may well be to normalise it with recipients or to encourage recipients to take a step further, moving from cartoon world or anime world to that of real world involving real children — the state of advancement in technology over last 20 years reveals inappropriateness of assuming a Category 6 image, cartoon or video is somehow distinctly different from other categories — where once such material was restricted to series of drawings which when moved sequentially and quickly produced moving images, now there is sophisticated Computer Generated Imagery technology, which produces life like images and completely realistic movements — CETS scales are non-legislated scales which are adopted because they are a useful tool, but which should not serve to alter the meaning of statutory text — material is either child exploitation material, or it is not — once it is found to be child exploitation material and an offence is committed, the court must sentence according to established sentencing principles — the scales assist but cannot overwhelm the assessment of the nature of the material as part of assessing the objective seriousness of the conduct — antecedents — s 16A(2)(m) — sentencing judge correct to consider offender’s employment as an AFP officer as an aggravating but not overwhelming factor — offender should not be treated as a “technical” AFP officer just because oath was taken when offender was protective services officer — to take that approach is to demean the oath and make community’s reliance upon sworn officers of the law dependant on individual foibles — sentence imposed not demonstrated to be manifestly excessive — leave to appeal refused
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