R v Freedman

Case [2017] NSWCCA 201


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: R v Freedman [2017] NSWCCA 201
Hearing dates: 4 August 2017
Date of orders: 23 August 2017
Decision date: 23 August 2017
Before: 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
Legislation Cited: Child Protection (Offenders Registration) Act 2000 (NSW), ss 9, 16C, 19
Criminal Code 1995 (Cth)
Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999
Cases Cited: Cahyadi v R [2007]…

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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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