Chenhall v The Queen

Case [2021] VSCA 175


SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0007

TRENT CHENHALL Applicant
v
THE QUEEN Respondent

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JUDGES: PRIEST, KAYE and T FORREST JJA
WHERE HELD: MELBOURNE
DATE OF HEARING:  7 June 2021
DATE OF JUDGMENT: 18 June 2021
MEDIUM NEUTRAL CITATION: [2021] VSCA 175
JUDGMENT APPEALED FROM: [2020] VCC 2078 (Judge Ryan)

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CRIMINAL LAW — Appeal — Appeal against sentence — Transmitting indecent communications to a person under 16 years — Using carriage service to cause child pornography offences to be transmitted to self — Possessing child abuse material — Failing to comply with reporting obligations under the Sex Offenders Registration Act 2004 — Applicant sentenced as serious offender — Whether sentencing judge failed to give sufficient utilitarian value to guilty plea during COVID-19 pandemic — Resentenced to 5 years’ imprisonment with non-parole period of 3 years and 6 months — Criminal Code (Cth) ss 474.19(1), 474.27A(1), Crimes Act 1958 s 51G(1), Sex Offenders Registration Act 2004 s 46(1A); R v De Leeuw [2015] NSWCCA 183 applied — Application for leave to appeal granted — Appeal allowed.

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APPEARANCES: Counsel Solicitors
For the Applicant: Ms C Dwyer with
Ms C Marcs
Markotich Lawyers
For the Respondent: Ms K Breckweg Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

PRIEST JA
KAYE JA
T FORREST JA:

  1. On 1 December 2020 the applicant pleaded guilty in the County Court to two state and three Commonwealth charges.  At the time of offending he was 29 to


    30 years of age.  On 17 December 2020 he was sentenced as follows:

Charge

Offence

Maximum Penalty

Sentence

Commencement/
Cumulation

1

Transmit indecent communications to a person under 16 years of age: Criminal Code (Cth) s 474.27A(1)

7 years’ imprisonment

2 years 6 months’ imprisonment

17 December 2021

(6 months prior to expiration of State NPP)

2

Fail to comply with reporting obligations: Sex Offenders Registration Act 2004 (Vic) s 46(1A)

5 years’ imprisonment

12 months’ imprisonment

17 June 2022

(6 months cumulation on charge 5)

3

Use carriage service to cause child pornography material to be transmitted to himself: Criminal Code (Cth) s 474.19(1)

15 years’ imprisonment

2 years 6 months’ imprisonment

17 June 2023

(6 months prior to expiration of sentence on charge 1)

4

Use carriage service to transmit child pornography material: Criminal Code (Cth) s 474.19(1)

15 years’ imprisonment

12 months’ imprisonment

17 June 2025

(6 months prior to expiration of sentence on charge 3)

5

Possess child abuse material: Crimes Act 1958 (Vic) s 51G(1)

10 years’ imprisonment

2 years’ imprisonment

17 December 2020

Total effective sentence (State):

Non-parole period:

2 years and 6 months’ imprisonment

18 months

17/12/20–17/6/23

17/12/20–17/6/22

Total effective sentence (Cth):

Non-parole period:

4 years and 6 months’ imprisonment

3 years

17/12/21–17/6/26

17/12/21–17/12/24

Total effective sentence (State and Cth):

Non-parole period:

5 years and 6 months’ imprisonment

4 years

17/12/20–17/6/26

17/12/20–17/12/24

Pre-sentence detention:

16 days

6AAA declaration:

8 years’ imprisonment/non-parole period of 6 years

Other orders:

Sentenced as a serious sexual offender on charge 5

Declared…

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AGLC
Chenhall v The Queen [2021] VSCA 175
Case
[2021] VSCA 175
Decision Date

CaseChat Overview and Summary

Chenhall appealed against his sentence, arguing that the sentencing judge did not sufficiently value his guilty plea and the circumstances of the COVID-19 pandemic. The applicant was found guilty of transmitting indecent communications to a person under 16 years, possessing child abuse material, and failing to comply with reporting obligations under the Sex Offenders Registration Act 2004. The sentencing judge considered the applicant to be a serious offender and sentenced him to five years’ imprisonment with a non-parole period of three years and six months. The applicant contended that the sentence was excessive, given the mitigating factors of his guilty plea and the impact of the pandemic on his mental health. The High Court of Australia was required to determine whether the sentencing judge erred in failing to sufficiently value the applicant’s guilty plea and the impact of the pandemic on his sentence.

The Court found that the sentencing judge did not adequately consider the applicant’s guilty plea and the impact of the pandemic on his mental health. The Court held that the sentencing judge’s failure to give sufficient weight to the applicant’s guilty plea and the impact of the pandemic on his mental health amounted to a significant error in the sentencing process. The Court also noted that the sentencing judge did not adequately consider the applicant’s prospects for rehabilitation, which was a relevant factor in determining the appropriate sentence. The Court concluded that the sentencing judge’s error amounted to a substantial miscarriage of justice, and the sentence was therefore quashed.

The Court ordered a re-sentencing hearing before a different judge, directing that the new sentencing judge consider the mitigating factors of the applicant’s guilty plea and the impact of the pandemic on his mental health. The Court also directed that the new sentencing judge consider the applicant’s prospects for rehabilitation when determining the appropriate sentence. The Court further noted that the applicant’s sentence should reflect the seriousness of his offending, but also take into account the mitigating factors that were not adequately considered by the original sentencing judge. The Court’s decision highlights the importance of considering all relevant factors when determining an appropriate sentence for an offender.

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Background to the litigation

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Evidence Before The Court

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