Johnson J at [1] N Adams J at [317] Ierace J at [318]
Decision:
1. Grant leave to appeal against sentence. 2. Quash the sentences imposed upon the Applicant at the Sydney District Court on 4 June 2019. 3. In their place, sentence the Applicant as follows: (i) for the offence in Sequence 1, a fixed term of imprisonment for seven months commencing on 4 June 2019 and expiring on 3 January 2020; (ii) for the offence in Sequence 3, imprisonment for 16 months commencing on 4 June 2019 and expiring on 3 October 2020; (iii) for Sequence 4, taking into account the offence in Sequence 10 under s.16BA Crimes Act 1914 (Cth), imprisonment for 18 months commencing on 4 August 2019 and expiring on 3 February 2021; (iv) for Sequence 9, imprisonment for 18 months commencing on 4 October 2019 and expiring on 3 April 2021; (v) with respect to each of the sentences for Sequences 3, 4 and 9, direct that the Applicant be released by way of recognizance release order on 3 May 2020, after serving 11 months’ imprisonment, upon the Applicant entering into a recognizance to be of good behaviour for a period of three years; (vi) a recommendation is made that the Applicant undergo psychological or psychiatric counselling as part of his recognizance; (vii) confirm the forfeiture order made on 4 June 2019 under s.23ZD Crimes Act 1914 (Cth) with respect to the Applicant’s iPhone 6 seized by police on 27 March 2017.
Catchwords:
APPEAL - sentence - applicant pleaded guilty to child pornography and grooming offences - offences of using carriage service to solicit child pornography material contrary to s.474.19(1)(a)(iv) Criminal Code (Cth) (two offences), using carriage service to groom a person under 16 years for sexual activity contrary to s.474.27(1) Criminal Code (Cth) (one offence) and possession of child abuse material contrary to s.91H(2) Crimes Act 1900 (NSW) (one offence) - offence of using carriage service to menace, harass or cause offence contrary to s.474.17(1) Criminal Code (Cth) taken into account on sentence under s.16BA Crimes Act 1914 (Cth) - 18-year old applicant committing offences against young victims - objective gravity of offences - finding by sentencing judge that applicant’s mental condition and immaturity reduced moral culpability with less weight to be given to specific deterrence and general deterrence - fulltime custodial sentence imposed with applicant to be released on recognizance release order after 15 months - alleged failure to consider whether alternative to fulltime imprisonment was available for Commonwealth offences - error not demonstrated - alleged failure to give any weight to utilitarian value of guilty pleas for Commonwealth offences - error not demonstrated - alleged erroneous reliance upon other sentencing decisions to identify sentencing range in manner which failed to give effect to findings…
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.
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AGLC
Kannis v R [2020] NSWCCA 79
Case
[2020] NSWCCA 79
Decision Date
CaseChat Overview and Summary
In the case of Kannis v R, the appellant, Kannis, appealed against the sentence imposed for his convictions on various charges, including offences of using a carriage service to solicit child pornography material, grooming a person under 16 years for sexual activity, possession of child abuse material, and using a carriage service to menace, harass or cause offence. The case was heard by the court of appeal. The primary issue before the court was whether the sentencing judge had erred in imposing a full-time custodial sentence without considering whether an alternative to imprisonment was available, and whether the judge had failed to give any weight to the utilitarian value of Kannis' guilty pleas. The court also considered whether the sentencing judge had erroneously relied on other sentencing decisions to identify the sentencing range in a way that did not give effect to findings favorable to Kannis.
The court found that the sentencing judge had not failed to consider alternatives to imprisonment, nor had they failed to give weight to the utilitarian value of the guilty pleas. However, the court did find that the sentencing judge had erroneously relied on other sentencing decisions. These decisions were dissimilar to Kannis' case in significant respects and did not identify the sentencing range. The court outlined the principles to be applied when using other sentencing decisions on sentence. The court then proceeded to resentence Kannis under the Criminal Appeal Act 1912 (NSW). The court found that the objective gravity of the offences, the harm done to the child victims of the cybersex offences, and the fact that the offences involved real victims and not a police officer posing as a child were significant factors to be considered. Kannis was a troubled and immature 18-year-old offender whose moral culpability was reduced, and therefore, there was a lesser role for specific and general deterrence. Nonetheless, a full-time custodial sentence was still appropriate. Kannis was resentenced to imprisonment to be released after 11 months on a recognizance release order.