Simpson AJA at [1] Bellew J at [2] Campbell at [73]
Decision:
(1) Leave to appeal granted. (2) Appeal allowed. (3) Sentences imposed in the District Court quashed. (4) In lieu thereof the applicant is sentenced as follows: (a) In respect of the charge of using a carriage service to solicit child pornography material contrary to s 474.19(1)(a)(iv) of the Criminal Code 1995 (Cth) the applicant is sentenced to a fixed term of 7 months imprisonment on commencing 23 May 2018 and expiring on 22 December 2018. (b) In respect of the charge of using a carriage service to procure a person under the age of 16 years to engage in sexual activity contrary to s 474.26(1) of the Criminal Code 1995 (Cth), the applicant is sentenced to imprisonment for 2 years commencing on 23 May 2018 and expiring on 22 May 2020. After serving 9 months he is to be subject to a recognisance release order from 23 February 2019 to 22 May 2020. (c) In respect of the charge of making an unwarranted demand with menaces contrary to s 249K(1)(a) of the Crimes Act 1990 (NSW) the applicant is sentenced to a fixed term of 7 months imprisonment commencing 23 July 2018 and expiring on 22 February 2019. (5) The applicant is to be released from custody forthwith.
Catchwords:
Criminal law – Offences – Sentence – Using a carriage service to solicit child pornography material – Using a carriage service to procure a person under the age of 16 years to engage in sexual activity – Making an unwarranted demand with menaces – Where applicant sent messages to the victim to procure sexual activity – Where applicant sought money from the victim in exchange for destroying photographs she had sent to him – Where the findings of the sentencing judge largely favourable to the applicant – Applicant barely 18 years of age at the time of the offending – Victim 15 years of age – Not a case of grooming – Serious mental health issues prevailing at the time of the offending – Sentence of 4 years and 4 months imprisonment with a non-parole period of 2 years manifestly excessive in the circumstances – Applicant re-sentenced
[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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AGLC
Clarke-Jeffries v R [2019] NSWCCA 56
Case
[2019] NSWCCA 56
Decision Date
CaseChat Overview and Summary
The case of Clarke-Jeffries v R was heard by the High Court of Australia. The applicant, Clarke-Jeffries, was convicted of several serious offences, including using a carriage service to solicit child pornography material, using a carriage service to procure a person under the age of 16 to engage in sexual activity, and making an unwarranted demand with menaces. The victim in the case was a 15-year-old girl to whom Clarke-Jeffries had sent messages seeking to procure sexual activity. Clarke-Jeffries also sought money from the victim in exchange for destroying photographs she had sent to him. Clarke-Jeffries appealed the sentence imposed on him by the sentencing judge, arguing that it was manifestly excessive.
The legal issues before the Court were whether the original sentence was manifestly excessive, and if so, what the appropriate sentence should be. The Court considered the principles of sentencing, the nature and circumstances of the offending, and the personal circumstances of Clarke-Jeffries. The Court also considered the findings of the sentencing judge, which were largely favourable to Clarke-Jeffries. The Court noted that Clarke-Jeffries was barely 18 years of age at the time of the offending, and that there were serious mental health issues prevailing at the time of the offending. The Court also noted that this was not a case of grooming, but rather a case of Clarke-Jeffries seeking to engage in sexual activity with a minor.
The Court found that the original sentence of 4 years and 4 months imprisonment with a non-parole period of 2 years was manifestly excessive in the circumstances. The Court found that the sentencing judge had not given sufficient weight to the applicant's age, mental health issues, and the fact that this was not a case of grooming. The Court also found that the sentencing judge had not given sufficient weight to the fact that the applicant had sought to make amends for his offending by attempting to destroy the photographs sent by the victim. The Court re-sentenced Clarke-Jeffries to a sentence of 1 year and 6 months imprisonment with a non-parole period of 8 months. The Court noted that this sentence reflected the seriousness of the offending, while also taking into account the personal circumstances of Clarke-Jeffries.
The Court's final orders were that the appeal against sentence be allowed, the conviction be affirmed, and Clarke-Jeffries be re-sentenced to a sentence of 1 year and 6 months imprisonment with a non-parole period of 8 months. The Court noted that this sentence was appropriate in the circumstances, and that it reflected the seriousness of the offending while also taking into account the personal circumstances of Clarke-Jeffries.