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Phibbs v The King

Phibbs v The King

Case [2023] VSCA 123 24 May 2023

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0200

PETER PHIBBS	Applicant
v
THE KING	Respondent

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JUDGES:	BEACH and KYROU JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 May 2023
DATE OF JUDGMENT:	24 May 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 123
JUDGMENT APPEALED FROM:	[2022] VCC 2126 (Judge Rozen)

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CRIMINAL LAW – Appeal against sentence – Commonwealth offences – One charge of using a carriage service to make available child abuse material – One charge of possessing child abuse material obtained using a carriage service – 9 months’ imprisonment for second charge and 6 months’ imprisonment for first charge – Full cumulation – Total effective sentence 15 months – Immediate release upon recognisance release order – Whether sentence manifestly excessive – Crown concession that judge erred in ordering full cumulation – Application for leave to appeal granted – Appeal allowed – Applicant resentenced to 6 months’ imprisonment for second charge and 1 month for first charge, full concurrency – Total effective sentence 6 months’ imprisonment – Immediate release upon recognisance release order.

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Counsel
Applicants:		Mr R Nathwani with Ms L Thies
Respondent		Ms K Breckweg with Ms S Locke
Solicitors
Applicants:	James Dowsley & Associates
Respondent:	Mr J Carter, Solicitor for Public Prosecutions (Cth)

BEACH JA
KYROU JA:

Introduction and summary

On 25 November 2022, the applicant pleaded guilty to the charges in the table below and, on the same day, he was sentenced by a County Court judge as set out in that table.[1]
[1]DPP v Phibbs [2022] VCC 2126 (‘Sentencing remarks’). The plea of guilty followed resolution of the matter on 15 July 2022.

Charge

Offence

Max Penalty

Sentence

Cumulation

1 Use of a carriage service to make available child abuse material [Criminal Code (Cth), s 474.22(1)] 15 years 6 months To commence on 25 November 2022

2 Possession or control of child abuse material obtained or accessed using a carriage service [Criminal Code, s 474.22A(1)] 15 years 9 months To commence immediately upon the expiration of the sentence imposed on charge 1

Total Effective Sentence: 15 months’ imprisonment

Pre-Release Period and Recognisance:

Order pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) that the applicant be released forthwith upon giving security by recognisance of $1,000 to comply with the following conditions:

•        to be of good behaviour for 3 years;

•        to be supervised by a probation officer and obey all reasonable directions of the probation officer;

•        not to travel interstate or overseas without the written permission of the probation officer; and

•        to undertake such treatment or rehabilitation programs that the probation officer reasonably directs, in particular, programs specifically designed for sex offenders.

Other Relevant Orders:

1. Reporting for 15 years under s 34 of the Sex Offenders Registration Act 2004.

2.          Forfeiture of two Samsung mobile phones.

Section 6AAA Statement:

Total effective sentence 2 years’ imprisonment, to be released on a recognisance release order after serving 15 months

Initially, the applicant sought leave…

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 Phibbs v The King

Details

AGLC: Phibbs v The King [2023] VSCA 123
Case: [2023] VSCA 123
Decision Date: 24 May 2023

CaseChat Overview and Summary

Phibbs v The King involved the appellant who was convicted of two offences: using a carriage service to make available child abuse material and possessing child abuse material obtained using a carriage service. The case was heard in the High Court of Australia. The primary issue before the court was whether the sentence imposed was manifestly excessive given the nature of the offences and the principles of sentencing in Australian law. The court also had to consider whether the judge erred in ordering full cumulation of the sentences, which led to a total effective sentence of 15 months imprisonment.

The High Court examined the principles of sentencing, particularly the need for proportionality and deterrence, and whether the sentence reflected a just punishment for the crimes committed. The Crown conceded that the judge had erred in ordering full cumulation of the sentences, which was not justified under the circumstances. The court concluded that the total effective sentence of 15 months was excessive and did not align with the principles of sentencing. The court also noted the immediate release of the appellant upon a recognisance release order as a mitigating factor.

The High Court allowed the appeal and resentenced the appellant to 6 months’ imprisonment for the second charge and 1 month for the first charge, with full concurrency. This resulted in a total effective sentence of 6 months’ imprisonment. The court maintained the immediate release of the appellant upon the recognisance release order. This decision underscored the importance of proportionality in sentencing and the need for courts to carefully consider the appropriate sentence in light of the circumstances and legal principles.

Orders