Ward JA at [1]; Johnson J at [2]; Garling J at [188]
Decision:
1. Crown appeals allowed.
2. Sentences imposed in the Sydney District Court on 27 February 2015 are set aside.
3. In their place,
(i) for the offence of accessing child pornography material contrary to s.474.19(1)(a)(i) Criminal Code (Cth) (Sequence 11), the Respondent is sentenced to imprisonment for a period of 15 months commencing on 6 March 2015 and expiring on 5 June 2016,
(ii) for the offence of accessing child pornography material contrary to s.474.19(1)(a)(i) (Sequence 2), the Respondent is sentenced to imprisonment for a period of 18 months commencing on 6 March 2015 and expiring on 5 September 2016,
(iii) for the offence of accessing child pornography material contrary to s.474.19(1)(a)(i) (Sequence 12), the Respondent is sentenced to imprisonment for a period of 21 months commencing on 6 March 2015 and expiring on 5 December 2016,
(iv) for the offence of possession of child abuse material contrary to s.91H(2) Crimes Act 1900 (NSW) (Sequence 1), and taking into account the two offences on the Form 1, the Respondent is sentenced to imprisonment comprising a non-parole period of 15 months commencing on 6 September 2015 and expiring on 5 December 2016, with a balance of term of 15 months commencing on 6 December 2016 and expiring on 5 March 2018.
4. In accordance with s.50 Crimes (Sentencing Procedure) Act 1999 (NSW), the Respondent should be released to parole on 5 December 2016.
Catchwords:
CRIMINAL LAW – Crown appeal – sentencing – Respondent pleaded guilty to three counts of using a carriage service to access child pornography (s. 474.19(1)(a)(i) Criminal Code (Cth)) and one count of possessing child abuse material (s.91H(2) Crimes Act 1900 (NSW)) – two further possession offences taken into account on a Form 1 – offending took place over a seven year period – Respondent possessed more than 32,000 items of child abuse material – total effective sentence imposed in District Court of two years imprisonment to be served by way of Intensive Correction Order – failure to have proper regard to the nature and circumstances of the offending – failure to apply relevant principles concerning concurrency, accumulation and totality – failure to give effect to the need for general deterrence and denunciation – undue weight given to Respondent’s subjective circumstances – sentences manifestly inadequate – residual discretion to resentence the Respondent exercised – appeal allowed – Respondent sentenced to terms of fulltime imprisonment – some accumulation appropriate as between sentences imposed for State and Commonwealth offences
[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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AGLC
R v De Leeuw [2015] NSWCCA 183
Case
[2015] NSWCCA 183
Decision Date
CaseChat Overview and Summary
The appeal by the Crown was against the sentence imposed on the respondent, who had pleaded guilty to using a carriage service to access child pornography and possessing child abuse material. The respondent's offending spanned seven years, during which he possessed over 32,000 items of child abuse material. The District Court imposed a total effective sentence of two years imprisonment, to be served by way of an Intensive Correction Order. The Crown argued that the sentence was manifestly inadequate for the severity and nature of the respondent's crimes. The appeal focused on whether the District Court had properly considered the circumstances of the offending, the need for general deterrence and denunciation, and the principles of concurrency, accumulation, and totality.
The legal issues before the court were whether the District Court had failed to have proper regard to the nature and circumstances of the respondent's offending, the need for general deterrence and denunciation, and the principles of concurrency, accumulation, and totality. The court also needed to determine if the sentence was unduly influenced by the respondent's subjective circumstances and whether it adequately reflected the seriousness of the crimes. Furthermore, the court had to consider whether the sentence was manifestly inadequate and if the Crown's residual discretion to resentence the respondent should be exercised.
The court held that the District Court had not properly regarded the nature and circumstances of the respondent's offending, particularly given the significant volume and duration of the material involved. The court found that the sentence did not sufficiently reflect the need for general deterrence and denunciation, nor did it apply the relevant principles concerning concurrency, accumulation, and totality. The court also noted that undue weight was given to the respondent's subjective circumstances. Consequently, the sentences imposed were manifestly inadequate. The Crown's appeal was allowed, and the court exercised its residual discretion to resentence the respondent. The respondent was sentenced to terms of full-time imprisonment, with some accumulation appropriate as between the sentences imposed for state and Commonwealth offences.