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R v Linardon

R v Linardon

Case [2014] NSWCCA 247 4 November 2014

Criminal Liability

Sentencing

Manifestly Inadequate

General Deterrence

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: R v Linardon [2014] NSWCCA 247
Hearing dates: 30 July 2014
Decision date: 04 November 2014
Before: Bathurst CJ at [1]; Adams J at [111]; R A Hulme J at [112]
Decision:
(1) Appeal allowed.
(2) Order that the sentences imposed by the sentencing judge on 2 August 2013 be quashed and in lieu thereof the following sentences imposed:
(a) For possession of child abuse material contrary to s 91H of the Crimes Act 1900 (NSW) a fixed term of imprisonment of 2 years commencing on 25 July 2013 and expiring on 24 July 2015.
(b) For the offence of using a carriage service to transmit child pornography contrary to s 474.19(1)(a)(iii) of the Criminal Code Act 1995 (Cth) a term of imprisonment of 2 years and 8 months commencing on 25 November 2013 and expiring on 24 July 2016.
(c) For the offence of using a carriage service to access child pornography contrary to s 474.19(1)(a)(i) of the Criminal Code Act 1995 (Cth) a term of imprisonment of 2 years and 8 months commencing on 25 March 2014 and expiring on 24 November 2016.
(d) For the aggravated offence of transmitting child pornography on three or more occasions to two or more people contrary to s 474.24A(1)(a)(i) of the Criminal Code Act 1995 (Cth) a term of imprisonment of 3 years commencing on 25 July 2014 and expiring on 24 July 2017.
(e) For the offence of using a carriage service to transmit an indecent communication to a person under the age of 16 years contrary to s 474.27A of the Criminal Code Act 1995 (Cth) a term of imprisonment of 3 years and 4 months commencing on 25 March 2015 and expiring on 24 July 2018.
(3) With respect to the offences under the Criminal Code Act 1995 (Cth) there be imposed a single non-parole period of 3 years commencing on 25 November 2013 and expiring on 24 November 2016.

Catchwords: CRIMINAL LAW - grounds of appeal - scope - whether ground of appeal wide enough for ground as to whether individual offence was manifestly inadequate CRIMINAL LAW - sentencing - manifestly inadequate - individual offences - failure to consider general deterrence - whether sentence in range of sentences that could have been imposed CRIMINAL LAW - sentencing - manifestly inadequate - total sentence - overall criminality - different criminal nature of each offence - accumulation CRIMINAL LAW - residual discretion - whether to exercise - need to send clear guidance to sentencing courts
Legislation Cited: Crimes Act 1900 (NSW), s 91H Crimes Act 1914 (Cth), ss 5D, 16A and 19AB Criminal Code Act 1995 (Cth), ss 474.19, 474.24A, 474.27A and 474.27 Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A Legislation Amendment (Sexual Offences Against Children) Bill 2010 (Cth)
Cases Cited: Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 Director of Public Prosecutions (Cth) v D'Alessandro [2010]…

Grounds of appeal

[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.

Continue reading R v Linardon

Details

AGLC: R v Linardon [2014] NSWCCA 247
Case: [2014] NSWCCA 247
Decision Date: 04 November 2014

CaseChat Overview and Summary

The case of R v Linardon involved an appeal against both conviction and sentence. The appellant, Linardon, was convicted of multiple offences, including acts of indecency with a child under the age of 16 and sexual penetration of a child under the age of 10. The appeal was brought to the court with several grounds, including the assertion that the individual sentences for each offence were manifestly inadequate and that the cumulative sentence was also inadequate. The appeal was heard by the High Court of Australia.

The primary legal issues before the court were whether the grounds of appeal were sufficiently broad to encompass challenges to the adequacy of individual sentences, and if so, whether the sentences imposed were indeed manifestly inadequate. The court had to consider whether the trial judge had failed to take into account the need for general deterrence and whether the cumulative sentence, while within the statutory range, was still inadequate in light of the overall criminality and the distinct nature of each offence. Additionally, the court needed to address whether it should exercise its residual discretion to send clear guidance to sentencing courts on the matter.

The High Court found that the grounds of appeal were indeed sufficiently broad to encompass challenges to the adequacy of individual sentences. It was determined that the trial judge had failed to adequately consider the need for general deterrence in imposing the sentences. The court held that the sentences for the individual offences were manifestly inadequate, as they did not reflect the severity of the crimes committed. The cumulative sentence was also found to be inadequate, as it did not sufficiently account for the overall criminality and the different nature of each offence. The court exercised its residual discretion to provide guidance to sentencing courts, emphasising the importance of considering general deterrence and the distinct nature of each offence when imposing sentences.

The final orders of the court were to quash the convictions and sentences imposed by the trial court and to remit the matter to the original sentencing court for re-sentencing. The court provided detailed guidance to ensure that the new sentences would appropriately reflect the seriousness of the offences and the need for general deterrence.

Orders