Simpson JA at [1] Harrison J at [2] Davies J at [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal allowed.
(3) Quash the sentences imposed in the District Court on 16 December 2016.
(4) In lieu, sentence the appellant as follows:
(a) For the offence of possess child abuse material (Sequence 1), a fixed term of 18 months commencing 19 December 2015 and expiring 18 June 2017;
(b) For the offence of using a carriage service to transmit child pornography material (Sequence 2), imprisonment for 18 months commencing 19 December 2016 and expiring 18 June 2018;
(c) For the offence of using a carriage service to transmit child pornography material (Sequence 9), imprisonment for 18 months commencing 19 March 2017 and expiring 18 September 2018;
(d) For the offence of using a carriage service to make available child pornography material (Sequence 15), imprisonment for 18 months commencing 19 June 2017 and expiring 18 December 2018; (e) For the offence of using a carriage service to make available child pornography material (Sequence 13), imprisonment for 12 months commencing 19 September 2017 and expiring 18 September 2018;
(f) For the aggravated transmission offence (Sequence 10), imprisonment for 4 years 6 months commencing 19 September 2017 and expiring 18 March 2022.
(g) For the Commonwealth offences there should be a single non-parole period of 3 years 6 months commencing 19 December 2016 and expiring 18 June 2020.
Catchwords:
CRIMINAL LAW – appeals – appeal against sentence – possession of child pornography contrary to Crimes Act 1900 (NSW) – use carriage service to transmit or make available child pornography contrary to Criminal Code Act 1995 (Cth) – whether sentencing judge failed to assess the objective seriousness of each offence – whether sentencing judge erred in application of totality principle – sentencing judge dealt with Commonwealth offences collectively – whether sentences manifestly excessive - appeal allowed – appellant re-sentenced
[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
Lyons v R [2017] NSWCCA 204
Case
[2017] NSWCCA 204
Decision Date
CaseChat Overview and Summary
Lyons appealed against his sentence for possessing and transmitting child pornography. The case was heard in the Court of Criminal Appeal. The legal issues before the court were whether the sentencing judge erred in assessing the seriousness of the offences and in applying the totality principle. Specifically, the court considered whether the sentencing judge failed to assess the objective seriousness of each offence and whether the judge erred in applying the totality principle by dealing with the Commonwealth offences collectively.
The court found that the sentencing judge did not adequately assess the objective seriousness of each offence. The court held that the judge should have considered the Commonwealth offences separately rather than collectively, as they involved different elements of harm and culpability. The court also found that the judge erred in applying the totality principle by not considering the appropriate discount for the overlap between the offences. The court held that the sentences were manifestly excessive because the judge did not appropriately consider the separate elements of each offence and did not apply the totality principle correctly. The appeal was allowed, and the appellant was re-sentenced.
The court ordered that the appellant be re-sentenced for each offence, taking into account the objective seriousness of each offence and applying the totality principle correctly. The court emphasised the importance of properly assessing the seriousness of each offence and applying the totality principle to avoid manifestly excessive sentences. The court also noted that the appellant's extensive criminal history and the aggravating factors of the offences were properly considered by the sentencing judge. However, the court held that the sentences were nonetheless excessive due to the errors in assessing the seriousness of each offence and applying the totality principle.