R v Jeffrey Ian Sereno

[2006] NSWDC 101

CITATION:	R v Jeffrey Ian SERENO [2006] NSWDC 101
HEARING DATE(S):	27/10/2006
JUDGMENT DATE:	27 October 2006
EX TEMPORE JUDGMENT DATE:	10/27/2006
JUDGMENT OF:	Berman SC DCJ
DECISION:	Bail refused
CATCHWORDS:	Bail Application
LEGISLATION CITED:	Crimes Act 1900
CASES CITED:	R v MM [2004] NSWCCA 364
PARTIES:	DPP Jeffrey Ian Sereno
FILE NUMBER(S):	06/11/0588
COUNSEL:	Giles Tabuteau - Crown Robert Sutherland SC - Offender
SOLICITORS:	DPP Mark Stenberg & Associates

JUDGMENT

1 HIS HONOUR: Last Friday there was an application before the court to vacate a trial date, that application being made by the Crown. The circumstances of that application were that although Mr Sereno’s trial for having sexually assaulted a number of young girls was due to start the following Monday, only very recently had police come into possession of information which suggested that he, that is the accused, was in possession of child pornography.

2 I vacated the trial date, and the matter was eventually listed today, in order for two things to happen, firstly, to set a new trial date, and secondly, to deal with a bail application, which Mr Sutherland who appears for Mr Sereno indicated would be made. The bail application was made this morning. I heard evidence from the officer in charge of police, and received an affidavit from her as to the state of investigation into the child pornography images.

3 The evidence establishes that although it is at a very early stage of those investigations, there was found on a laptop computer belonging to the accused a large number of images of child pornography. Also found on the computer were indications that certain files had been deleted. The file names could be viewed but the contents of the files at this stage cannot be. One of the file names refers to the Christian names of the three complainants, together with their ages.

4 Also in the trash file, and with the same file extension are file names which clearly indicate child pornography. For example, in some of the file names the word “childlover” appears, and the word “underage” appears in one file. And other suggestions in those file names of child pornography are clearly to be seen.

5 The information about the possible possession by the accused of child pornography was given to police by his former girlfriend. At one stage she confronted him about what she had seen, and the accused admitted that he had viewed the images. He said:

“I was curious with the female form, I would never hurt anyone, no one in the photos is being forced they are doing it themselves”.

6 I refer to those matters because one of the most important issues in determining whether the accused will appear for his trial when it is eventually held is the strength of the Crown case against him and the likely penalty. He has been charged with an offence which carries with it a maximum penalty of 25 years imprisonment, and perhaps more relevantly to this application, does not carry with it a presumption in favour of bail.

7 If the accused is convicted of that offence, a full time custodial sentence of some magnitude will necessarily follow, even given his prior good character in the sense that he has no other convictions.

8 In determining the strength of the Crown case, I must not only look at the statements made by the three complainants, which as Mr Sutherland has pointed out, carry with them contradictions, but also look at this new evidence which has only very recently become available to the Crown. I should add that as well as photographs of child pornography on the same laptop, there were photographs of the complainants found, albeit that they were images showing the complainants fully clothed, or images of their eyes, (the accused is said to have an interest in macro photography).

9 The Crown case is therefore immensely strengthened by the finding on the laptop computers. The Crown referred me on Friday to a case of R v MM [2004] NSWCCA 364. It is at least possible that once this trial gets underway, the Crown will be entitled to rely on what is found on the laptop computer as showing a tendency of the accused, which supports the complainants’ allegations.

10 Also relevant when considering whether the accused is likely to turn up to face his trial is of course the much more direct question as to the likelihood of him facing charges in relation to the child pornography photographs. In determining whether the accused is likely to turn up for his trial on the child sexual assault matters, I must take into account the risk that he will not do so because he is afraid of being charged in relation to the child pornography matters which themselves would, if proved, likely lead to a full time custodial sentence.

11 In all those circumstances I am satisfied that the risk that the accused will not attend his trial is unacceptable. I am satisfied that bail should be refused for that reason.

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