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
B
PDF Version
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
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT…
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 Godfrey v The Queen
Sign in free to access the full text
Details
AGLC
Godfrey v The Queen [2013] WASCA 247
Case
[2013] WASCA 247
Decision Date
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.