KW v The Queen - [2013] NSWCCA 31

Court of Criminal Appeal

New South Wales

Case Title: KW v R

Medium Neutral Citation: [2013] NSWCCA 31

Hearing Date(s): 5 December 2012

Decision Date: 19 February 2013

Before: Simpson J at [1]; Harrison J at [47]; Adamson J at [48]

Decision:
(1) Leave to appeal granted;

(2) Appeal allowed, sentences set aside;

(3) The applicant be re-sentenced as follows:

Count (v): imprisonment for 3 years and 9 months, commencing on 7 April 2010 and expiring on 6 January 2014, with a non-parole period of 2 years and 9 months, expiring on 6 January 2013;

Counts (ii)-(iv): imprisonment for a fixed term of 1 year and 6 months, commencing on 7 January 2011 and expiring on 6 July 2012 (I would decline to set a non-parole period in respect of these offences because the sentence will be fully subsumed in those imposed in respect of Counts (i) and (v): see Sentencing Procedure Act s 45(1).);

Count (i): imprisonment for 5 years and 6 months, commencing on 7 April 2011 and expiring on 6 October 2016, with a non-parole period of 4 years and 3 months, expiring on 6 July 2015.

Catchwords: CRIMINAL LAW - appeal - sentencing - possession of child pornography - applicant pleaded guilty to offence against s 91H(2) of the Crimes Act 1900 - produce child pornography - aggravated indecent assault - person under 16 years - child 21 months - convicted after trial of offences against s 61M(2) and s 91H(2) of the Crimes Act - whether sentencing judge erred when applying principles relating to standard non-parole periods - whether sentencing judge fell into The Queen v de Simoni [1981] HCA 31 error - whether sentence for count 1 manifestly excessive - application of Muldrock v The Queen [2011] HCA 39 - sentencing judge erred when fixing standard non-parole period - sentence therefore manifestly excessive - applicant re-sentenced - Crimes Act 1900 s 91H(2), s 61M(2), s 91H(2) and s 66A - Crimes (Sentencing Procedure) Act 1999 Pt 4 Div 1A, s 44 and s 54B

Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes Act 1900

Cases Cited: GSH v The Queen; The Queen v GSH [2009] NSWCCA 214
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
R v Way [2004] NSWCCA 131; 60 NSWLR 168
The Queen v de Simoni [1981] HCA 31; 147 CLR 383

Category: Principal judgment

Parties: KW (Applicant)
Regina (Respondent)

Representation

- Counsel: Counsel:
J Stratton SC (Applicant)
H Wilson (Respondent)

- Solicitors: Solicitors:
Bannister Lawyers (Applicant)
S Kavanagh (Solicitor for Public Prosecutions) (Respondent)

File Number(s): 2009/148645

Decision Under Appeal

- Court / Tribunal: District Court

- Before: Hosking DCJ

- Date of Decision: 09 March 2011

- Court File Number(s): 2009/148645

Publication Restriction: Non publication of any information or material that may lead to the identification of the victims (s 15A Children (Criminal Proceedings) Act 1987)

JUDGMENT

On 30 March 2010 the applicant was arraigned in the District Court on an indictment containing five counts.…

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 KW v The Queen

Details

AGLC: KW v The Queen [2013] NSWCCA 31
Case: [2013] NSWCCA 31
Decision Date: 19 February 2013

CaseChat Overview and Summary

In the case of KW v The Queen, the applicant appealed against his sentencing for the possession of child pornography and the aggravated indecent assault of a child under the age of 16. The applicant had pleaded guilty to producing child pornography and was convicted after trial of the aggravated indecent assault of a 21-month-old child. The applicant was sentenced to imprisonment for the production of child pornography and the indecent assault, with a standard non-parole period of five years imposed for the production offence. The legal issues before the court were whether the sentencing judge erred in applying the principles relating to the standard non-parole periods, whether the sentencing judge fell into the error identified in The Queen v de Simoni, and whether the sentence for count 1 was manifestly excessive.
The court held that the sentencing judge erred in fixing the standard non-parole period for the production offence. The court found that the sentencing judge did not consider the full range of mitigating factors and did not adequately justify the chosen non-parole period. The court found that the sentence for count 1 was manifestly excessive and remitted the matter to the sentencing judge for re-sentencing. The court applied the principles in Muldrock v The Queen and found that the applicant's sentence was manifestly excessive because it failed to reflect the totality principle and did not adequately account for the mitigating factors. The court also found that the sentencing judge erred in applying the principles relating to the standard non-parole periods and that the sentence for count 1 was manifestly excessive. The applicant was re-sentenced by the court.

The final orders of the court were that the applicant's sentence for count 1 be quashed and the matter be remitted to the sentencing judge for re-sentencing. The court also ordered that the sentence for count 2 remain unchanged. The court did not alter the conviction but directed that the applicant be re-sentenced for the production of child pornography.

Orders