(3) The appellant is resentenced to a total effective sentence of 17 years’ imprisonment, made up of the following four individual sentences:
(a) For the offence of using a child under 12 years of age to produce child exploitation material (CAN2020/11987), the appellant is convicted and sentenced to 3 years and 4 months’ imprisonment, commencing on 11 January 2033 and expiring on 10 May 2036.
(b) For the offence of engaging in a sexual relationship with a child under special care (CAN2020/7714), the appellant is convicted and sentenced to 11 years, 10 months and 23 days’ imprisonment, commencing on 18 November 2021 and expiring on 10 October 2033.
(c) For the offence of grooming a young person (CAN2020/13262), the appellant is convicted and sentenced to 1 year, 7 months and 6 days’ imprisonment, commencing on 12 September 2035 and expiring on 17 April 2037.
(d) For the offence of possessing child exploitation material (CAN2020/11989), the appellant is convicted and sentenced to 2 years’ imprisonment, commencing on 18 November 2036 and expiring on 17 November 2038.
(4) The overall non-parole period will be 11 years imprisonment, commencing on 18 November 2021 and expiring on 17 November 2032.
Catchwords:
APPEAL – CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – adequacy of reasons – unattributed copying of prosecution submissions in primary judgment – reasons read as a whole indicate that primary judge gave independent and impartial consideration to the evidence and issues – ground dismissed.
APPEAL – CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – factual findings in relation to aggravating feature of offence – effect of credibility assessment of reliability of estimate - evidence unable to support estimate of number of occurrences of abuse – limited utility of calculation of precise number of occasions of sexual offending in respect of an offence of engaging in a sexual relationship with a child under special care – ground upheld – appellant resentenced.
APPEAL – CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – manifest excess – limited utility of classifying offences within hypothetical range – importance of maximum penalty as yardstick – grooming offence - sentence manifestly excessive – appellant resentenced.
[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
Porter v The Queen [2024] ACTCA 9
Case
[2024] ACTCA 9
Decision Date
CaseChat Overview and Summary
The appeal in *Porter v The Queen* was heard by Mossop, Baker and Bromwich JJ. The appellant sought to challenge his sentence imposed by the primary judge.
The Court of Appeal was required to determine two primary grounds of appeal. First, whether the primary judge’s reasons for sentence were adequate, specifically concerning allegations of unattributed copying of prosecution submissions. Second, whether the sentence imposed was manifestly excessive, particularly in relation to factual findings concerning aggravating features of the offences and the classification of the offences within a hypothetical range.
The Court dismissed the first ground, finding that the reasons, read as a whole, indicated the primary judge had given independent and impartial consideration to the evidence and issues. However, the Court upheld the second ground, finding that the evidence was insufficient to support the estimate of the number of occurrences of abuse for the offence of engaging in a sexual relationship with a child under special care. The Court also determined that the sentence for the grooming offence was manifestly excessive, noting the limited utility of classifying offences within hypothetical ranges and the importance of the maximum penalty as a yardstick.
Consequently, leave to appeal was granted, and the appeal was allowed. The appellant was resentenced to a total effective sentence of 17 years’ imprisonment, with an overall non-parole period of 11 years.
Orders
Orders of the court
(1) Leave to appeal is granted.
(2) The appeal is allowed.
(3) The appellant is resentenced to a total effective sentence of 17 years’ imprisonment, made up of the following four individual sentences:
(a) For the offence of using a child under 12 years of age to produce child exploitation material (CAN2020/11987), the appellant is convicted and sentenced to 3 years and 4 months’ imprisonment, commencing on 11 January 2033 and expiring on 10 May 2036.
(b) For the offence of engaging in a sexual relationship with a child under special care (CAN2020/7714), the appellant is convicted and sentenced to 11 years, 10 months and 23 days’ imprisonment, commencing on 18 November 2021 and expiring on 10 October 2033.
(c) For the offence of grooming a young person (CAN2020/13262), the appellant is convicted and sentenced to 1 year, 7 months and 6 days’ imprisonment, commencing on 12 September 2035 and expiring on 17 April 2037.
(d) For the offence of possessing child exploitation material (CAN2020/11989), the appellant is convicted and sentenced to 2 years’ imprisonment, commencing on 18 November 2036 and expiring on 17 November 2038.
(4) The overall non-parole period will be 11 years imprisonment, commencing on 18 November 2021 and expiring on 17 November 2032.