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Glasheen v R

Glasheen v R

Case [2022] NSWCCA 191 5 September 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Glasheen v R [2022] NSWCCA 191
Hearing dates: 22 August 2022
Date of orders: 22 August 2022
Decision date: 05 September 2022
Before: Beech-Jones CJ at CL at [1];
Price J at [2];
Garling J at [33]
Decision:
(1) Leave to appeal granted.
(2) Appeal allowed.
(3) Quash the sentence imposed in the District Court on 10 August 2021.
(4) In lieu thereof, impose a sentence by way of a total term of imprisonment of 3 years and 1 month, commencing 25 July 2020 and expiring 24 August 2023.
(5) Fix a non-parole period of 2 years and 4 months. The earliest date for release is 24 November 2022.

Catchwords:
CRIME – Appeals – Appeal against sentence – Federal child abuse offence – statutory mandatory minimum sentence prescribed – reduction of mandatory minimum pursuant to s 16AAC of the Crimes Act 1914 (Cth) – concession by the Crown of error by the sentencing judge by not reducing the sentence below the specified minimum – re-sentence – consideration of non-parole period

Legislation Cited:
Child Protection (Offenders Registration) Act2000 (NSW) s 16C
Crimes Act 1900 (NSW) ss 61M(2), 91G(1)(a), 91H(2), 91L(3)
Crimes Act 1914 (Cth) ss 3, 16A, 16A(2AAA)(b), 16AAA, 16AAB, 16AAC(2), 16AAC(3)
Criminal Code Act 1995 (Cth) s 474.22(1)

Cases Cited:
Bahar v The Queen (2011) 214 A Crim R 417; [2011] WASCA 249
R v Delzotto [2022] NSWCCA 117

Texts Cited:
Category: Principal judgment
Parties: Richard William John Glasheen (Applicant)
Regina (Respondent)
Representation:
Counsel:
G Lewer (Applicant)
K Breckweg (Respondent)
Solicitors:
Hugo Law Group (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2020/217800
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

Nil

Date of Decision:

10 August 2021

Before:

Robinson DCJ

File Number(s):

2020/217800

JUDGMENT

BEECH-JONES CJ at CL: I agree with Price J.
PRICE J: On the hearing of the appeal on 22 August 2022, the Court made the following orders:

Leave to appeal granted.

Appeal allowed.

Quash the sentence imposed in the District Court on 10 August 2021.

In lieu thereof, impose a sentence by way of a total term of imprisonment of 3 years and 1 month, commencing 25 July 2020 and expiring 24 August 2023.

Fix a non-parole period of 2 years and 4 months. The earliest date for release is 24 November 2022.

Here are my reasons for joining in the Court’s orders.
The sole ground of appeal was that;

“The sentencing judge erred in failing to give full effect to the discounts articulated for the applicant’s plea of guilty and assistance to authorities.”

The focus of the appeal was on the mandatory minimum sentencing regime for the federal offence of use carriage service to access child abuse material contrary to s 474.22(1) of the Criminal Code Act 1995 (Cth) (‘the Criminal Code’) and s 16AAC(2)-(3) of the Crimes Act 1914 (Cth), which provide for the imposition of sentences…

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 Glasheen v R

Details

AGLC: Glasheen v R [2022] NSWCCA 191
Case: [2022] NSWCCA 191
Decision Date: 05 September 2022

CaseChat Overview and Summary

The case of Glasheen v R involved an appellant who was convicted of a federal child abuse offence. The appellant appealed against the sentence imposed by the sentencing judge, arguing that the mandatory minimum sentence prescribed by statute had not been properly reduced in accordance with section 16AAC of the Crimes Act 1914 (Cth). The Crown conceded that there was an error in the sentencing process as the mandatory minimum sentence had not been reduced as required by the legislation. The appeal centred on the appropriate legal framework for the reduction of the statutory mandatory minimum sentence and the re-sentencing of the appellant, including the consideration of the non-parole period.

The court had to determine whether the statutory mandatory minimum sentence could be reduced as per section 16AAC of the Crimes Act 1914 (Cth) and if so, what the appropriate non-parole period should be in the context of the offence and the appellant’s circumstances. The court also needed to address whether the Crown’s concession of error necessitated a re-sentencing process that properly applied the statutory provisions. Furthermore, the court had to balance the principles of sentencing, including deterrence, rehabilitation, and proportionality, with the statutory requirements of the mandatory minimum sentence.

The court found that the statutory mandatory minimum sentence should indeed be reduced in accordance with section 16AAC of the Crimes Act 1914 (Cth). The court noted the importance of applying the statutory provisions correctly and acknowledged the Crown’s concession of error. The court re-sentenced the appellant, taking into account the statutory requirements and the circumstances of the offence. The non-parole period was reassessed to ensure it aligned with the principles of sentencing and the statutory framework. The court concluded that the new sentence, including the non-parole period, was appropriate given the circumstances of the case.

The court ordered that the appellant be re-sentenced with the statutory mandatory minimum sentence properly reduced. The new non-parole period was specified, reflecting the court's consideration of the statutory requirements and the principles of sentencing. The re-sentencing aimed to ensure that the sentence was both legally compliant and proportionate to the offence committed.

Orders