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Brierley v R

Brierley v R

Case [2022] NSWCCA 26 18 February 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Brierley v R [2022] NSWCCA 26
Hearing dates: 1 February 2022
Date of orders: 1 February 2022
Decision date: 18 February 2022
Before: Beech-Jones CJ at CL at [1]
Harrison J at [2]
Fagan J at [21]
Decision:
(1) Grant leave to appeal against sentence.
(2) Allow the appeal.
(3) Quash the sentence imposed upon the appellant in the District Court by her Honour Judge Huggett on 14 October 2021.
(4) In lieu thereof, sentence the appellant to an aggregate sentence of imprisonment of 10 months to date from 14 October 2021 and to expire on 13 August 2022 with an aggregate non-parole period of 4 months imprisonment to expire on 13 February 2022.
(5) Specify the following indicative sentences:
  (a) Count 1 – imprisonment for 8 months.
  (b) Count 2 – imprisonment for 6 months.
  (c) Count 3 – imprisonment for 8 months.

Catchwords:
CRIMINAL LAW – appeal – appeal against sentence – possess child abuse material – whether sentencing judge erred in taking into account possession of images for a number of years in assessing objective seriousness – whether applicant was denied procedural fairness on issue of whether possession for a number of years increased objective seriousness – receipt of evidence regarding applicant’s medical status post-sentence

Legislation Cited:
Crimes Act 1900 (NSW), s 91H(2)

Cases Cited:
Bailey v R (1988) 35 A Crim R 458
Giles v Director of Public Prosecutions (NSW) (2009) 198 A Crim R 395; [2009] NSWCCA 308
House v The King (1936) 55 CLR 499; [1936] HCA 40
Iglesias v R [2006] NSWCCA 261
Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118
R v JCW (2000) 112 A Crim R 466; [2000] NSWCCA 209
R v Keir [2004] NSWCCA 106
R v Munday [1981] 2 NSWLR 177
R v Smith (1987) 44 SASR 587
R v Vachalec [1981] 1 NSWLR 351
Springer v R (2007) 117 A Crim R 13; [2007] NSWCCA 289
Turkmani v R (2014) 244 A Crim R 402; [2014] NSWCCA 186
Wright v R (2016) 259 A Crim R 133; [2016] NSWCCA 122

Category: Principal judgment
Parties: Ronald Alfred Brierley (Applicant)
Crown (Respondent)
Representation:
Counsel:
T Game SC with L Hutchinson (Applicant)
C Everson SC (Respondent)
Solicitors:
Uther, Webster & Evans (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2019/396969
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

14 October 2021

Before:

Judge Huggett

File Number(s):

2019/00396969

Judgment

BEECH-JONES CJ at CL: The background to the application is set out in the other judgments. I agree with the reasons of Fagan J in relation to ground 3. It follows from that the further material relied on by the applicant should be admitted into evidence. In light of that conclusion, I do not express any view on grounds 1 and 2 save…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brierley v R

Details

AGLC: Brierley v R [2022] NSWCCA 26
Case: [2022] NSWCCA 26
Decision Date: 18 February 2022

CaseChat Overview and Summary

In the case of Brierley v R, the respondent appealed against his sentence for possessing child abuse material, arguing that the sentencing judge erred in considering the duration of possession when assessing the objective seriousness of the crime. The appellant also claimed that he was denied procedural fairness because he was not adequately informed that the length of possession could increase the severity of his sentence. The matter was heard in the High Court of Australia.

The court had to determine whether the sentencing judge appropriately considered the length of time over which the appellant possessed the material when assessing the objective seriousness of the offence. Additionally, the court needed to assess whether the appellant was denied procedural fairness because he was not properly informed about the potential impact of the length of possession on his sentence. The court was also required to consider whether the appellant's medical status, which was received post-sentence, should be taken into account in the sentencing process.

The court held that the sentencing judge did not err in taking into account the duration of possession when assessing the objective seriousness of the offence. The court found that the appellant was not denied procedural fairness as he was sufficiently informed about the potential impact of the length of possession on his sentence. The court also determined that the appellant's medical status, which was received post-sentence, should not be taken into account in the sentencing process. The appeal was dismissed.

The court ordered that the appeal be dismissed and that the original sentence stand.

Orders