R v Gridley

The appeal concerned a sentence imposed on the appellant, who had pleaded guilty to five offences, including three relating to child pornography, procuring a child to commit an indecent act, and making a communication for a prurient purpose. The principal offending involved internet communications with a 14 or 15-year-old child in Victoria. The sentencing judge had indicated that the appellant's apology to the victim would be decided in his favour in the absence of rebuttal evidence from the prosecution, but ultimately sentenced on the basis that the apology was not proved. The appeal was heard by Vanstone, Blue, and Nicholson JJ.

The legal issues before the court were whether the sentencing judge erred by refusing to take into account the appellant's apology, and whether the head sentence and non-parole period were manifestly excessive. The appellant argued that he was misled by the judge's remarks regarding the apology and consequently did not present evidence to support it. He also contended that the sentence was too severe given his young age, the objective seriousness of the offending, his assistance to police, lack of prior convictions, rehabilitation efforts, and personal circumstances.

The Full Court held that while the appellant's counsel was indeed misled by the judge's intimation concerning the apology, not every error in the sentencing process warrants setting aside the sentence. The court found that a substantial discount had already been applied to the head sentence for contrition and assistance to police, and this error did not vitiate the overall sentencing process. Consequently, the arguments regarding the head sentence being excessive were not upheld. However, the court found that the proportion of the head sentence allocated to the non-parole period was severe to the point of indicating error, particularly considering the appellant's youth, good character, and rehabilitation steps.

The court allowed the appeal, setting aside the original sentence. It reimposed the same head sentence of two years and six months imprisonment but varied the non-parole period to one year and three months, ordering that the sentence commence from 18 December 2012.