R v Legallant [2019] NSWDC 227

District Court New South Wales

Medium Neutral Citation: R v Legallant [2019] NSWDC 227 Hearing dates: 3 0ctober 2018 – 5 April 2019 – 17 April 2019 Date of orders: 17 April 2019 Decision date: 17 April 2019 Jurisdiction: Criminal Before: Hunt DCJ Decision: The offender is sentence to an aggregate term of imprisonment consisting of a head sentence of 3 years and 6 months with a non-parole period of 2 years and 3 months. Forfeiture order made by consent. Catchwords: CRIMINAL LAW – Sentence – Possess child pornography – Use carriage service to solicit child pornography – General deterrence – Protection of children – Exploitation of children Legislation Cited: Commonwealth Criminal Code. Crimes Act. (Cth) Cases Cited: Minehan v R [2010] NSWCCA 140 R v Gent [2005] 162 A Crim R 29 Xiao v R [2018] NSWCCA 4 Category: Sentence Parties: Crown Christopher Nicless Legallant Representation: Counsel: D Barrow - The Crown G Jauncey – Offender

Solicitors: Director of Public Prosecutions (Cth) Crown File Number(s): 2018/87985

Judgment 1. HIS HONOUR: Christopher Legallant is before the Court for sentence in relation to two offences, one of possessing of controlling child pornography material for use through a carriage service in breach of s 474.20(1) of the Commonwealth Criminal Code. That matter provides for a maximum penalty of 15 years imprisonment. The second count is using a carriage service to solicit child pornography material in breach of s 474.19 subparagraph (1)(a)(iiii) of the Commonwealth Criminal Code which matter similarly carries a maximum penalty of 15 years imprisonment. There is no charges before the Court on a s 16 BA schedule or otherwise. 2. I will have regard to the maximum penalties in the way contemplated by the authorities as a bench mark or a guidepost and for purposes of comparison with the worst possible case. In sentencing Mr Legallant for Commonwealth matters, I am obliged to sentence him in accordance with Part 1B of the Crimes Act. I am obliged to specifically take into account such matters as are listed a s 16A(2) that are relevant and known to the Court. I am obliged to impose sentences that are of a severity appropriate in all the circumstances. Relevant for anxious consideration in every case and in this case are the provisions of s 17A of the Crimes Act which provides that a court shall not pass a sentence of imprisonment in respect of a federal offender unless the Court had not considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case. 3. In terms of the general principles that are attracted in relation to child pornography offences, it is worth first observing that in relation to these two particular offences, each contemplates in terms of the charge in a general sense, some sharing of or desire to share or the capacity to share child pornographic information or images with others. From the authorities, the following general principles can be drawn in relation to sentencing for child pornography offences. A term of imprisonment will ordinarily be expected for such offending. The objective seriousness of the offending is ordinarily determined by references to factors that are set out in Minehan v R [2010] NSWCCA 140 as articulated by RA Hulme J at para 94. 4. General deterrence is said to be the primary or at least a primary consideration for offending involving child pornography. The reason that general deterrence has some primacy in this class of offence is because there is a paramount public interest in promoting the protection of children, as the possession or use of child pornography or soliciting of it are not victimless crimes. This is because children are sexually abused in order to supply the market and are likely to suffer some additional trauma over and above the experience occasioned by the creation of the pornography by possibly understanding that images of them exist and circulate within the community with the understandings of the stimulation that such material may bring to those who are stimulated by it. Possession or use of child pornography creates a market for the continued corruption and exploitation of children which is entirely anti ethical to that paramount interest in protecting them. In offences of this kind it has been determined in R v Gent [2005] 162 A Crim R 29 and cases that follow it, that less weight can properly be afforded to an offender's prior good character. The fact that there is no evidence, and that is the case here, of any financial motivation for obtaining, sharing or soliciting images does not operate in any mitigation. 5. I turn to consideration of matters that are specific to this particular case.