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Peters v R

Peters v R

Case [2018] NSWCCA 126 25 June 2018

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Peters v R [2018] NSWCCA 126
Hearing dates: 20 June 2018
Decision date: 25 June 2018
Before: Beazley P at [1];
Price J at [2];
R A Hulme J at [3]
Decision:
1. Leave to appeal granted.
2. Appeal against sentence allowed.
3. Quash the sentences imposed in the District Court on 31 August 2017 and sentence the offender as follows:
(a) For the offence of possession of child abuse material, sentenced to a non-parole period of 9 months with a balance of term of the sentence of 9 months. The sentence is to date from 28 August 2017 and the non-parole period will expire on 27 May 2018 at which time the offender will be taken to have become the subject of a statutory parole order pursuant to s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW).
(b) For the offence of using a carriage service to access child pornography, sentenced to imprisonment for 1 year 10 months dating from 28 February 2018 and order release on recognizance pursuant to s 19AC of the Crimes Act 1914 (Cth) after having served 9 months upon giving surety (without security) in the sum of $3000 on condition that: (i) the offender be of good behaviour for the balance of the term of the sentence; and (ii) he accept the supervision of Community Corrections NSW.

Catchwords:
SENTENCING – appeal against sentence – plea of guilty – appellant convicted of State and Commonwealth offences – possessing and accessing child abuse material – where pleas of guilty to both charges entered at same time – where sentencing judge applied discount for plea of guilty in respect of State offence only – whether discount must be given for utilitarian value of plea for federal offences – application of Xiao v R [2018] NSWCCA 4 – ground upheld.

SENTENCING – relevant factors on sentence – multiple offences – accumulation, concurrency and totality – where additional criminality in the Commonwealth offence distinct from State offence – where sentencing judge indicated he would partially accumulate sentences but imposed total accumulation – sentencing judge erred in saying he intended partial accumulation but imposing total accumulation – ground upheld.
SENTENCING – accessing and possessing child abuse material – objective seriousness – where sentencing judge assessed offences as below the midrange of objective seriousness – where applicant contended that he had not viewed all child abuse images and videos – where Crown could not prove that applicant had viewed files in worst category – assessment of sentencing judge correct.
Legislation Cited: Crimes Act 1900 (NSW) s 91H(2)
Crimes Act 1914 (Cth) s 19AC
Crimes (Administration of Sentences) Act 1999 (NSW) s 158
Crimes (Sentencing Procedure) Act 1999 (NSW) s 11
Criminal Appeal Act 1912 (NSW) s 6(3)
Criminal Code (Cth) s 474.19(1)(a)(i)
Cases Cited: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Director of Public Prosecutions (Cth) v Thomas…

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 Peters v R

Details

AGLC: Peters v R [2018] NSWCCA 126
Case: [2018] NSWCCA 126
Decision Date: 25 June 2018

CaseChat Overview and Summary

In Peters v R, the appellant was convicted of possessing and accessing child abuse material under both state and Commonwealth laws. He entered pleas of guilty to both charges simultaneously. The appellant appealed the sentence imposed, arguing that the sentencing judge erred by not applying a discount for his plea of guilty in relation to the Commonwealth offence, and that the judge incorrectly assessed the objective seriousness of the offences.

The court examined whether the sentencing judge was required to apply a discount for the plea of guilty in relation to the federal offence, considering the principle established in Xiao v R [2018] NSWCCA 4. The court found that the judge should have applied a discount for the federal offence as well, since the plea of guilty had a utilitarian value for both offences. Additionally, the court assessed the judge’s handling of the sentencing principles of accumulation, concurrency, and totality. The judge had indicated a partial accumulation of sentences but ultimately imposed a total accumulation, which the court found to be an error.

The court also reviewed the sentencing judge's assessment of the objective seriousness of the offences. The appellant argued that he had not viewed all the child abuse images and videos, and thus the assessment was incorrect. However, the court concluded that the sentencing judge's assessment was correct as the Crown could not prove that the appellant had viewed the files in the worst category. Therefore, the appeal was upheld on the grounds of the discount for the plea of guilty and the assessment of the objective seriousness of the offences.

The final orders of the court were to remit the matter to the sentencing judge for reconsideration of the sentence, taking into account the appropriate discount for the plea of guilty in relation to the federal offence and the correct application of the principles of accumulation, concurrency, and totality.

Orders