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Kenneth McNiece v The Queen

Kenneth McNiece v The Queen

Case [2019] VSCA 78 10 April 2019

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0072

KENNETH McNIECE	Applicant
v
THE QUEEN	Respondent

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JUDGES:	McLEISH, T FORREST and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 March 2019
DATE OF JUDGMENT:	10 April 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 78	First revision 9 May 2019: [52], [55], [56]
JUDGMENT APPEALED FROM:	[2017] VCC 2043 (Judge Sexton)

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CRIMINAL LAW – Appeal – Sentence – Use of carriage service to solicit child pornography, procuring child to engage in sexual activity, transmitting indecent communications to person under 16 years and possession of child pornography – Total effective sentence 4 years 10 months’ imprisonment – Whether judge diluted mitigating effect of no prior offending through observation that applicant did not have computer at relevant times – Whether sentences manifestly excessive – Base sentence on procuring charge – Procuring 15 year old boy to have sexual activity with girlfriend – No inducement or role of offender in activity – 2 years 6 months’ imprisonment – Sentence manifestly excessive – Resentenced to 12 months’ imprisonment – Total effective sentence 3 years’ imprisonment – DPP v Watson [2016] VSCA 73, applied – DPP v Meharry [2017] VSCA 387, distinguished – Criminal Code (Cth), ss 272.14(1), 474.19(1), 474.26(1), 474.27A(1); Crimes Act 1958, s 70(1).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C K Wareham	James Dowsley & Associates
For the Respondent	Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

McLEISH JA

T FORREST JA
WEINBERG JA:

On 22 December 2017, the applicant was sentenced following a plea of guilty in the County Court to a total effective sentence of 4 years and 10 months’ imprisonment on a number of Commonwealth offences involving use of a carriage service and one State offence of knowing possession of child pornography. Following an addendum to the sentence which was made on 16 March 2018, the sentences took the following form:

Charge Offence Maximum penalty Sentence Cumulation[1]
(Commencement)

1. Use carriage service to solicit child pornography material: s 474.19(1) Criminal Code (Cth) 15 years 12 months 3 months (22 December 2020)

2. Use carriage service to transmit indecent communication to a person under 16 years: s 474.27A(1) Criminal Code 7 years 8 months 2 months (22 December 2021)

3. Procure a child to engage in sexual activity outside Australia s 272.14(1) Criminal Code 15 years 2½ years Base (22 December 2018)

4. Use carriage service to solicit child pornography material: s 474.19(1) Criminal Code 15 years 12 months 3 months (22 March 2021)

5. Use carriage service to transmit indecent communication to a person under 16 years: s 474.27A(1) Criminal Code 7 years 6 months 1 month (22 March 2022)

6. Use carriage service to transmit indecent communication to a person under 16 years: s 474.27A(1) Criminal Code 7 years 6 months 1 month (22 April 2022)

7. Use carriage service to procure to a person under 16 years for sexual activity: s 474.26(1) Criminal Code 15 years

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 Kenneth McNiece v The Queen

Details

AGLC: McNiece v The Queen [2019] VSCA 78
Case: [2019] VSCA 78
Decision Date: 10 April 2019

CaseChat Overview and Summary

The applicant appealed against his sentence for offences related to using a carriage service to solicit child pornography, procuring a child to engage in sexual activity, transmitting indecent communications to a person under 16, and possession of child pornography. The appeal was heard in the Supreme Court of Victoria. The central issue before the court was whether the judge had appropriately considered the mitigating effect of the applicant’s lack of prior offending by highlighting that he did not have a computer during the relevant period. Another concern was whether the total effective sentence of 4 years and 10 months of imprisonment was manifestly excessive.

The court found that the base sentence for the procuring charge, where the applicant procured a 15-year-old boy to engage in sexual activity with his girlfriend, should be 2 years and 6 months. However, given there was no inducement or active role by the applicant in the sexual activity, the court determined that this sentence was manifestly excessive. It was reduced to 12 months. The court also considered the sentences for the other charges and adjusted them accordingly. The total effective sentence was ultimately set at 3 years of imprisonment. The court applied the principles from DPP v Watson, where it was held that a sentence should not be reduced merely because the offender did not possess a computer. The decision distinguished DPP v Meharry, where the court found that the offender’s lack of prior offending should have been given greater weight in the sentencing process. The court referenced the relevant sections of the Criminal Code and the Crimes Act to support its reasoning.

The final orders of the court included the resentencing of the applicant to a total effective sentence of 3 years of imprisonment, with specific terms for the individual charges. The court’s decision ensured that the sentencing process took into account all relevant mitigating factors and adhered to the principles of proportionality and consistency in sentencing for similar offences.

Orders