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 Munday [1981] 2 NSWLR 177
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:
Solicitors:
T Game SC with L Hutchinson (Applicant)
C Everson SC (Respondent)
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…
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- AGLC
- Brierley v R [2022] NSWCCA 26
- Case
- [2022] NSWCCA 26
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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