Macfarlan JA at 1; Johnson J at 2; RA Hulme J at 3
DECISION:
Leave to rely upon ground 3 granted. Leave to appeal granted. Appeal allowed. Sentences in respect of each of counts 1 to 5 confirmed. Sentences imposed in respect of counts 6 to 9 quashed and in lieu the following sentences be imposed: Count 7: Sentenced to imprisonment comprising a non-parole period of 1 year 6 months and a balance of the term of 6 months. The sentence to commence 15 December 2008. The non-parole period will expire 14 June 2010. The total term will expire 14 December 2010. Count 8: Sentenced to imprisonment comprising a non-parole period of 1 year 9 months and a balance of the term of the sentence of 7 months. The sentence to commence 15 April 2009. The non-parole period will expire 14 January 2011. The total term will expire 14 August 2011. Count 6: Sentenced to imprisonment for 3 years from 15 October 2009 and expiring 14 October 2012. Count 9: Sentenced to imprisonment for 3 years from 15 February 2010 and expiring 14 February 2013. In respect of counts 6 and 9, set a non-parole period of 1 year 5 months dating from 15 October 2009 and expiring 14 March 2011.
CATCHWORDS:
CRIMINAL LAW - appeal against sentence - grounds for interference - child pornography - using carriage service in offensive manner and to groom person under 16 for sex - error as to maximum penalty - whether error as to treatment of offender's mental condition - whether moral culpability reduced - whether sentence manifestly excessive
[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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Details
AGLC
Minehan v R [2010] NSWCCA 140
Case
[2010] NSWCCA 140
Decision Date
CaseChat Overview and Summary
The appellant in this case, Minehan, appealed against his sentence for a series of offences related to the use of a carriage service for the purpose of creating child pornography, using the carriage service in an offensive manner, and to groom a person under 16 for sex. The case was heard in the High Court of Australia. The appellant argued that the primary judge erred in the maximum penalty for his offences, whether the treatment of his mental condition was correct, whether his moral culpability was reduced, and whether the sentence was manifestly excessive.
The court considered whether the primary judge erred in the maximum penalty by imposing a sentence of 12 years imprisonment, which was the maximum penalty for one of the charges. The court held that the error was not significant enough to warrant interference with the sentence. The court also considered whether the primary judge erred in treating the appellant's mental condition. The court held that there was no error in the primary judge's treatment of the appellant's mental condition as it was not a mitigating factor that reduced the appellant's moral culpability. The court further considered whether the appellant's moral culpability was reduced and held that it was not. The court held that the appellant's actions were deliberate and calculated, and that his mental condition did not reduce his moral culpability.
The court held that the sentence was not manifestly excessive. The court noted that the primary judge had taken into account all relevant factors, including the appellant's mental condition, and had imposed a sentence that was within the range of sentences that could be imposed for the offences committed. The court dismissed the appeal against sentence.
In conclusion, the High Court held that the appeal against sentence was dismissed. The court held that the primary judge did not err in imposing the sentence of 12 years imprisonment, and that the sentence was not manifestly excessive. The court also held that the primary judge did not err in treating the appellant's mental condition, and that it did not reduce the appellant's moral culpability.