Kenneth McNiece v The Queen - [2018] VSCA 186

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0072

KENNETH McNIECE	Applicant
v
THE QUEEN	Respondent

---
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
---

JUDGES:	WHELAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 July 2018
DATE OF JUDGMENT:	1 August 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 186 First Revision: 6 August 2018
JUDGMENT APPEALED FROM:	[2017] VCC 2043 (Judge Sexton)

---

CRIMINAL LAW – Sentencing – Application for leave to appeal – Proposed grounds specific error and manifest excess – Sex offences using internet – General deterrence – Leave refused – No reasonable prospect of reduction in total effective sentence – DPP v Meharry [2017] VSCA 387 applied – Criminal Procedure Act 2009 (Vic) s 280(1)(b).

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C K Wareham	James Dowsley & Associates
For the Respondent	Ms K Breckweg	Ms S N McNaughton SC, Commonwealth Director of Public Prosecutions

WHELAN JA:

The applicant, Kenneth McNiece, pleaded guilty in the County Court to a number of offences involving use of the internet to solicit child pornography, transmit indecent communications to a person under 16 years of age, procure a child to engage in sexual activity outside Australia, and procure a person under 16 for sexual activity. He also pleaded guilty to one charge of knowingly possessing child pornography.

He was sentenced by a judge in the County Court as follows:

Charge Offence Maximum penalty Sentence Commencement

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

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

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

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

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

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

7. Use carriage service to procure to a person under 16 years for sexual activity: s 474.26(1) Criminal Code (Cth) 15 years 2 years 22 September 2019

8. Use carriage service to solicit child pornography material: s 474.19(1) Criminal Code (Cth) 15 years 12 months 22 June 2021

9. Knowingly possessing child pornography, contrary to s 70(1) of the Crimes Act 1958 (Vic) 10 years 12 months 22 December 2017

Total Effective Sentence: 4 years and 10 months imprisonment

Non-Parole Period: 2 years and 2 months imprisonment

Pre-sentence detention declared: Nil

Section 6AAA Statement: (State): 2 years imprisonment with a non-parole period of 12 months.

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: Kenneth McNiece v The Queen [2018] VSCA 186
Case: [2018] VSCA 186
Decision Date: 1 August 2018

CaseChat Overview and Summary

The appellant, Kenneth McNiece, has applied for leave to appeal against his conviction and sentence for various sex offences involving the use of the internet. The case was heard in the Court of Appeal, where the primary focus was on the sentencing phase of the trial. The appellant argued that the original sentence was excessive and that there were errors in the sentencing process which warranted a reduction. The Crown, represented by the Director of Public Prosecutions, opposed the application on the grounds that the sentence was proportionate and correctly calculated.

The legal issues before the court were whether the sentence imposed was a manifest excess of jurisdiction and whether there were any specific errors in the sentencing process. The appellant contended that the sentencing judge failed to adequately consider the principles of general deterrence and proportionality. The Crown, on the other hand, argued that the sentence was justified given the nature and circumstances of the offences. The court was required to determine if there was a reasonable prospect of the appellant's total effective sentence being reduced, and if the grounds for appeal met the criteria for leave as outlined in the Criminal Procedure Act 2009 (Vic) s 280(1)(b).

The court considered the principles established in DPP v Meharry [2017] VSCA 387, which emphasised the importance of proportionality and the need to avoid unnecessary interference with the trial judge's sentencing discretion. The court held that the sentence was within the range of appropriate penalties for the offences committed and that the sentencing judge had adequately considered the relevant factors. The court found that the appellant had not demonstrated a reasonable prospect of the total effective sentence being reduced, and therefore refused leave to appeal. The reasoning was grounded in the principle that the trial judge's assessment of the appropriate sentence should not be lightly interfered with unless there is a clear error or excess.

The court's final orders were that leave to appeal was refused, and the original sentence and conviction were upheld. The appellant's application for leave to appeal was dismissed, and the original judgment of the trial court remained in place.

Orders