Godfrey v The Queen

Case [2013] WASCA 247


GODFREY -v- THE QUEEN [2013] WASCA 247



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2013] WASCA 247
THE COURT OF APPEAL (WA)
Case No:CACR:261/201219 AUGUST 2013
Coram:BUSS JA
MAZZA JA
HALL J
23/10/13
20Judgment Part:1 of 1
Result: Appeal allowed
Sentences in the District Court be set aside
The appellant be resentenced as follows:
- Count 2 - 2 years' imprisonment with parole
- Counts 1 and 3 - 2 years' imprisonment and 16 months' imprisonment, both to commence on the day the appellant becomes eligible for parole on count 2
The appellant is to be released after serving 12 months of the sentences the subject of counts 1 and 3 and on entering into a recognisance in the sum of $10,000 to be of good behaviour for 12 months
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Parties:DEREK SWEDE EDUARD GODFREY
THE QUEEN

Catchwords:

Criminal law
Appeal against sentence
Possession of child pornography
Use of a carriage service to access child pornography
Federal and state offences
Voluntary disclosure
One offence involving only written material
Whether sentences manifestly excessive
Whether total effective sentence disproportionate to total criminality

Legislation:

Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 (Cth)

Case References:

AB v The Queen [1999] HCA 46; (1999) 198 CLR 111
Bayliss v The Queen [2013] VSCA 70
Bugmy v The Queen (1990) 169 CLR 525; (1990) 92 ALR 552
Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638
Colbourn v The Queen [2009] TASSC 108
Dartnall v The State of Western Australia [2012] WASCA 251
Director of Public Prosecutions (Cth) v D'Alessandro [2010] VSCA 60; (2010) 26 VR 477
Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370; (1990) 97 ALR 373
Do v The State of Western Australia [2013] WASCA 218
DPP v Bayliss [2012] VCC 1369
Hili v The Queen (2010) 242 CLR 520; (2010) 204 A Crim R 434
Hill v The State of Western Australia [2009] WASCA 4
KS v The State of Western Australia [2011] WASCA 85
KWLD v The State of Western Australia [No 4] [2013] WASCA 185
LJP v The State of Western Australia [2010] WASCA 85
Melham v The Queen [2011] NSWCCA 121
Naysmith v The Queen [2013] WASCA 32
Phinthong v The Queen [2011] WASCA 192
Ponniah v The Queen [2011] WASCA 105
R v Davis [2012] QCA 324
R v Fulop [2009] VSCA 296; (2009) 236 FLR 376
R v Lee [2013] WASCA 216
R v Mara [2009] QCA 208; (2009) 196 A Crim R 506
R v Oliver [2003] 2 Cr App R (S) 64
Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
Smit v The State of Western Australia [2011] WASCA 124
The State of Western Australia v Cunningham [2008] WASCA 240; (2008) 190 A Crim R 430


JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT…

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Godfrey v The Queen [2013] WASCA 247
Case
[2013] WASCA 247
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CaseChat Overview and Summary

This was an appeal against sentence. The appellant pleaded guilty to possession of child pornography outside Australia, possession of child exploitation material and using a carriage service to access child pornography. The sentences imposed were 4 years 6 months' imprisonment on count 1, 2 years' imprisonment on count 2 and 4 years' imprisonment on count 3. The appeal was limited to the single ground that the sentences were manifestly excessive and that the total effective sentence infringed the first limb of the totality principle. The Court of Appeal allowed the appeal and set aside the sentences imposed. It resentenced the appellant to 2 years' imprisonment on count 2, 2 years' imprisonment on count 1 and 16 months' imprisonment on count 3. Each of counts 1 and 3 were to be served concurrently with each other and to commence on the day the appellant became eligible for parole on count 2. The appellant was to be released after serving 12 months of the sentences on counts 1 and 3 on entering into a recognisance in the sum of $10,000 to be of good behaviour for 12 months. In assessing whether the sentences were manifestly excessive the Court had regard to the maximum penalty for the relevant offence, the standard of sentencing customarily observed with respect of that offence, the place that the criminal conduct occupied on the scale of seriousness of offences of that kind and the personal circumstances of the offender. The Court noted that the sentence for count 1 was manifestly excessive having regard to the nature and quantity of the material and the circumstances in which it was possessed. The Court considered that the sentence imposed on count 2 was appropriate. The sentence for count 3 was also manifestly excessive. The total effective sentence imposed was one of 5 years' imprisonment of which the appellant would have to serve 4 years before being eligible for release on parole. The Court considered that the total effective sentence was disproportionate to the total offending. The total sentence in this case exceeded the sentences imposed in other cases notwithstanding that the total offending in those cases was significantly more serious.

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