Jimenez v R [2017] NSWCCA 1

Jimenez v R [2017] NSWCCA 1

The conviction had to be quashed because the appellant's plea, the Local Court sentencing, and the District Court refusal of leave all proceeded on the wrong legal basis that the offence was established if the images depicted a child under 18, whereas the relevant State offence required a child under 16. The plea could not be treated as an admission that the child was under 16, and because the images had been lost there was no utility in remitting the matter for trial or resentencing.

Jurisdiction
Australia
Judgment Date
27 January 2017
Procedural Posture
Appeal Against Conviction Following Referral to the Court of Criminal Appeal / Court of Criminal Appeal of the Supreme Court of New South Wales
Outcome
Appeal against conviction allowed; conviction quashed and verdict of acquittal to be entered.
Legal Topics
['possession of Child Pornography' 'withdrawal of Guilty Plea' 'error as to Relevant Law' 'child Age Element of Offence' 'lost Evidence']
['criminal Law' 'criminal Appeals'] ['possession of Child Pornography' 'withdrawal of Guilty Plea' 'error as to Relevant Law' 'child Age Element of Offence' 'lost Evidence']

Case Brief

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Procedural Posture

Appeal Against Conviction Following Referral to the Court of Criminal Appeal / Court of Criminal Appeal of the Supreme Court of New South Wales

Legal Issues

  1. 1 ["Whether the appellant's guilty plea was entered under a misapprehension as to an essential ingredient of the offence under s 91H(2) of the Crimes Act 1900 (NSW)." 'Whether the Local Court and District Court proceeded on the erroneous basis that the relevant age was under 18 years rather than under 16 years.' 'Whether the conviction should be quashed and whether the matter should be remitted to the Local Court given that the images had been lost.']

Ratio Decidendi

The conviction had to be quashed because the appellant's plea, the Local Court sentencing, and the District Court refusal of leave all proceeded on the wrong legal basis that the offence was established if the images depicted a child under 18, whereas the relevant State offence required a child under 16. The plea could not be treated as an admission that the child was under 16, and because the images had been lost there was no utility in remitting the matter for trial or resentencing.

Court Disposition

Appeal against conviction allowed; conviction quashed and verdict of acquittal to be entered.

Orders

  • ['Appeal against conviction allowed.' 'Conviction quashed and verdict of acquittal to be entered.']