KW v The Queen

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.