Leeming JA at [1] Bellew J at [43] Lonergan J at [133]
Decision:
(1) The Crown appeal is allowed.
(2) The orders of Judge McLoughlin SC of 10 March 2017 are set aside.
(3) In respect of the offence contrary to s. 91H(2) of the Crimes Act 1900 (NSW) the respondent is sentenced to a fixed term of 15 months imprisonment to date from 10 March 2017, and to expire on 9 June 2018.
(4) In respect of the offence contrary to s. 474.19(1) of the Criminal Code 1995 (Cth) the respondent is sentenced to 18 months imprisonment commencing on 10 June 2017 and expiring on 9 December 2018.
(5) In respect of the order made in (4) above, and pursuant to s. 19AC(1) of the Crimes Act 1914 (Cth) I direct that at the expiration of a period of 15 months from 10 June 2017, namely on 9 September 2018, the respondent be released upon his own recognisance, without security, in a sum of $500.00, to be of good behaviour for a period of 3 months
Catchwords:
CRIMINAL LAW – Appeal – Crown appeal against asserted manifest inadequacy of sentence – Where respondent was charged with using a carriage service to access child pornography and possessing child abuse material – Where the respondent was sentenced to 15 months imprisonment in respect of the first count and 12 months imprisonment in respect of the second count – Where the sentencing judge ordered that the terms of imprisonment be wholly concurrent and that they each be served by way of an Intensive Correction Order – Whether the sentencing judge erred in failing to accumulate the sentences to any degree – Whether the sentencing judge erred in failing to have proper regard to the need for general deterrence – Whether the sentencing judge erred in giving excessive weight to the respondent’s rehabilitation – Errors established – Sentence manifestly inadequate
CRIMINAL LAW – Appeal – Practice and procedure – Crown appeal against asserted manifest inadequacy of sentence – Whether the Court’s residual discretion to decline to intervene and re-sentence the respondent should be exercised – Where there was a delay in the provision of the transcript of the proceedings and the remarks of the sentencing judge – Where the Crown did not notify the respondent that an appeal was being considered – Where the notice of appeal was filed approximately two months after the sentence was imposed – Where the notice was not served on the respondent until one week after that – Whether the respondent was unfairly prejudiced by that delay
[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 Freedman [2017] NSWCCA 201
Case
[2017] NSWCCA 201
Decision Date
CaseChat Overview and Summary
The respondent was charged with using a carriage service to access child pornography and possessing child abuse material. He was sentenced to 15 months imprisonment in respect of the first count and 12 months imprisonment in respect of the second count. The sentencing judge ordered that the terms of imprisonment be wholly concurrent and that they each be served by way of an Intensive Correction Order. The Crown appealed against the sentence, arguing that it was manifestly inadequate. The Crown submitted that the sentencing judge failed to accumulate the sentences to any degree, did not have proper regard to the need for general deterrence, and gave excessive weight to the respondent’s rehabilitation.
The court examined the sentencing judge’s approach to sentencing and concluded that there were errors in the sentencing process. The court held that the sentencing judge erred in failing to accumulate the sentences to any degree, and in failing to have proper regard to the need for general deterrence. The court also found that the sentencing judge gave excessive weight to the respondent’s rehabilitation. The court noted that the delay in the provision of the transcript of the proceedings and the remarks of the sentencing judge, and the fact that the Crown did not notify the respondent that an appeal was being considered, did not unfairly prejudice the respondent. The court held that the sentence was manifestly inadequate and exercised its residual discretion to decline to intervene and re-sentence the respondent.
The court ordered that the appeal be allowed and that the respondent be re-sentenced. The court noted that the delay in the provision of the transcript of the proceedings and the remarks of the sentencing judge, and the fact that the Crown did not notify the respondent that an appeal was being considered, did not unfairly prejudice the respondent. The court held that the sentence was manifestly inadequate and exercised its residual discretion to decline to intervene and re-sentence the respondent. The court ordered that the respondent be re-sentenced on the basis that the sentences be accumulated to a degree, and that proper regard be had to the need for general deterrence. The court also directed that the respondent’s rehabilitation be given appropriate weight, but not to the exclusion of other relevant considerations.