Fitzgerald v R [2015] NSWCCA 266

Fitzgerald v R [2015] NSWCCA 266

The sentencing judge did not err in assessing objective seriousness because he considered the nature and content of the material, ages and number of victims, gravity of the sexual activity, number of items, and absence of sale, dissemination or profit. The volume of material, serious CETS categories, substantial number of victims and the concurrency benefit meant the sentences were not unreasonable or plainly unjust, and therefore were not manifestly excessive.

Jurisdiction
Australia
Judgment Date
09 October 2015
Procedural Posture
Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence From the District Court of NSW
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['possessing Child Abuse Material' 'using a Carriage Service to Access Child Pornography' 'objective Seriousness' 'manifest Excess' 'general Deterrence']
['criminal Law' 'sentencing'] ['possessing Child Abuse Material' 'using a Carriage Service to Access Child Pornography' 'objective Seriousness' 'manifest Excess' 'general Deterrence']

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Procedural Posture

Criminal Sentence Appeal / Application for Leave to Appeal Against Sentence From the District Court of NSW

Legal Issues

  1. 1 ["Whether the sentencing judge erred in assessing the objective seriousness of the offending and in finding that the significant number of materials placed the offender's conduct at the highest end of offending." 'Whether the sentence imposed was manifestly excessive.']

Ratio Decidendi

The sentencing judge did not err in assessing objective seriousness because he considered the nature and content of the material, ages and number of victims, gravity of the sexual activity, number of items, and absence of sale, dissemination or profit. The volume of material, serious CETS categories, substantial number of victims and the concurrency benefit meant the sentences were not unreasonable or plainly unjust, and therefore were not manifestly excessive.

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Leave to appeal granted.' 'Appeal dismissed.']