Naysmith v The Queen

Case [2013] WASCA 32

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   NAYSMITH -v- THE QUEEN [2013] WASCA 32

CORAM:   MARTIN CJ

McLURE P
MAZZA JA

HEARD:   13 NOVEMBER 2012

DELIVERED          :   8 FEBRUARY 2013

FILE NO/S:   CACR 180 of 2012

BETWEEN:   CHRISTOPHER BARRY NAYSMITH

Appellant

AND

THE QUEEN
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :BIRMINGHAM DCJ

File No  :IND BUN 20 of 2012

Catchwords:

Criminal law - Appeal against sentence - Possession of child pornography - Offender sentenced to 12 months' imprisonment - Intellectual disability and social disadvantage - Role of general deterrence - Turns on own facts

Legislation:

Crimes Act 1914 (Cth), s 20AB(1)
Crimes Regulations 1990 (Cth), reg 6
Criminal Code (Cth), s 474.19(1)
Criminal Code (WA), s 220

Result:

Appeal allowed

Category:    B

Representation:

Counsel:

Appellant:     Mr D Hunter

Respondent:     Ms R V C Fogliani

Solicitors:

Appellant:     Legal Aid (WA)

Respondent:     Director of Public Prosecutions (Cth)

Case(s) referred to in judgment(s):

Collins v The State of Western Australia [2007] WASCA 108

Hill v The State of Western Australia [2009] WASCA 4

Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120

R v Oliver [2003] 2 Cr App R (S) 15

Smit v The State of Western Australia [2011] WASCA 124

  1. JUDGMENT OF THE COURT:    This appeal against sentence was heard by the court on 13 November 2012.  At the conclusion of the hearing the court ordered that the appeal be allowed, the sentence imposed on the appellant be set aside and in lieu thereof sentenced the appellant to an intensive supervision order, with program and supervision requirements, for a period of 9 months to commence from the date of the order.  These are the reasons of the court.

  2. On 23 July 2012 the appellant was convicted on his fast‑track pleas of guilty of one count of having in his possession child exploitation material contrary to s 220 of the Criminal Code (WA) (the Code) and one count of using a carriage service to access child pornography material contrary to s 474.19(1) of the Criminal Code (Cth) (the Commonwealth Code).

  3. On 2 August 2012, the appellant was sentenced by Birmingham DCJ to 12 months' imprisonment for each offence.  The appellant was made eligible for parole on the State offence and was ordered to be released after service of 6 months of the sentence for the Commonwealth offence upon entering into a recognisance of $5,000 to be of good behaviour for a term of 6 months.  The sentencing judge ordered that the sentences be served concurrently.

  4. The gravamen of the single ground of appeal was that, having regard to the appellant's intellectual disability and other disadvantages, the sentencing judge gave too much weight to general deterrence. 

  5. The facts of the Commonwealth offence are that on 19 March 2010 the appellant accessed on the internet 33 images classified as child pornography material under the Commonwealth Code.

  6. The facts of the State offence…

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Naysmith v The Queen [2013] WASCA 32
Case
[2013] WASCA 32
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CaseChat Overview and Summary

Naysmith v The Queen was an appeal against sentence in which the appellant challenged the severity of his 12-month imprisonment sentence for possession of child pornography and using a carriage service to access child pornography material. The appellant, who had an intellectual disability and faced social disadvantages, argued that the sentencing judge had placed undue emphasis on general deterrence. The appeal was heard by the court on 13 November 2012, and the court allowed the appeal, setting aside the original sentence and imposing an intensive supervision order for nine months instead.

The legal issue before the court was whether the sentencing judge had given too much weight to the principle of general deterrence when sentencing the appellant. The appellant's intellectual disability and social disadvantage were factors that the court considered when assessing the appropriate sentence. The court needed to balance the general deterrence principle with the appellant's individual circumstances and the need for rehabilitation.

The court found that the sentencing judge had indeed given excessive weight to general deterrence, which was not appropriate in light of the appellant's intellectual disability and social disadvantage. The court emphasised that the sentencing judge should have considered the appellant's personal circumstances more thoroughly, including his intellectual disability, prior convictions, and the need for rehabilitation. The court concluded that an intensive supervision order with program and supervision requirements was a more appropriate sentence for the appellant, as it would provide the necessary support and assistance for his rehabilitation while still addressing the community's need for general deterrence. The appeal was allowed, and the sentence was set aside, with the new sentence taking effect from the date of the order.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT: This appeal against sentence was heard by the court on 13 November 2012. At the conclusion of the hearing the court ordered that the appeal be allowed, the sentence imposed on the appellant be set aside and in lieu thereof sentenced the appellant to an intensive supervision order, with program and supervision requirements, for a period of 9 months to commence from the date of the order. These are the reasons of the court. On 23 July 2012 the appellant was convicted on his fast‑track pleas of guilty of one count of having in his possession child exploitation material contrary to s 220 of the Criminal Code (WA) (the Code) and one count of using a carriage service to access child pornography material contrary to s 474.19(1) of the Criminal Code (Cth) (the Commonwealth Code). On 2 August 2012, the appellant was sentenced by Birmingham DCJ to 12 months' imprisonment for each offence. The appellant was made eligible for parole on the State offence and was ordered to be released after service of 6 months of the sentence for the Commonwealth offence upon entering into a recognisance of $5,000 to be of good behaviour for a term of 6 months. The sentencing judge ordered that the sentences be served concurrently. The gravamen of the single ground of appeal was that, having regard to the appellant's intellectual disability and other disadvantages, the sentencing judge gave too much weight to general deterrence. The facts of the Commonwealth offence are that on 19 March 2010 the appellant accessed on the internet 33 images classified as child pornography material under the Commonwealth Code. The facts of the State offence are that on 6 September 2011 the appellant had in his possession child exploitation material on external hard drives, a laptop computer and 26 optical disks (that is, DVDs and CDs). The material the subject of the State offence was classified by the respondent into five categories, using the typology developed in the United Kingdom and used in the guideline judgment in R v Oliver [2003] 2 Cr App R (S) 15. As to its use in this jurisdiction, see Smit v The State of Western Australia [2011] WASCA 124 [14] ‑ [17]. The child exploitation material depicted children ranging from 12 months to 16 years. The appellant possessed some 5,832 images and video files, the vast majority of which were in the lowest category of seriousness, depicting erotic posing with no sexual activity. There were 64 images depicting sexual activity between children or solo masturbation; 93 images depicting non‑penetrative sexual activity between adults and children; 368 images depicting penetrative sexual activity between children and adults; and three images depicting sadism or bestiality. The appellant was aged 28 at the time of sentencing. He had one prior conviction which was for intentionally exposing a person under the age of 16 to indecent material for which he was placed on a 12‑month intensive supervision order. The appellant has an intellectual disability. He had been registered with the Disability Services Commission since he was aged 7 and on a disability support pension from the age of 16. The psychological report before the sentencing judge summarised the appellant's disability as follows:[The appellant] would not be functioning within what is considered to be the 'Average' range of intelligence commencing at an IQ of 80 (Low Average). The maximum IQ level for registration with the Disability Services Commission is 70 and given that he is a client of this organisation, it is accepted that [the appellant] falls within this limit. It is suggested however, that much of his functional and cognitive limitation is likely to be a consequence of his childhood social and general environmental deprivation … Nonetheless however, and regardless of the origin, it is clear that [the appellant] does have considerable limitations when compared to the average person. Caution for those working with him in a professional capacity is suggested, concerning the degree of his comprehension, with him likely to give the impression that he has a greater level of understanding than a closer examination might reveal.

Ratio Decidendi

Legal Principle Established

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