Godfrey v The Queen

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.