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:
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)
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…
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.
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Details
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.