Leeming JA at [1]; Johnson J at [2]; Beech-Jones J at [165]
Decision:
1. Crown appeals allowed. 2. Sentences imposed in the Sydney District Court on 14 November 2014 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), the Respondent is sentenced to imprisonment for a period of 12 months commencing on 21 November 2014 and expiring on 20 November 2015, (ii) for the offence of possession of child abuse material contrary to s.91H(2) Crimes Act 1900 (NSW), the Respondent is sentenced to imprisonment comprising a non-parole period of 15 months commencing on 21 February 2015 and expiring on 20 May 2016, with a balance of term of 15 months, commencing on 21 May 2016 and expiring on 20 August 2017, (iii) for the offence of possession of a prohibited weapon under s.7(1) Weapons Prohibition Act 1988 (NSW), the Respondent is convicted but no other penalty is imposed in accordance with s.10A Crimes (Sentencing Procedure) Act 1999 (NSW). 4. In accordance with s.50 Crimes (Sentencing Procedure) Act 1999 (NSW), the Respondent should be released to parole on 21 May 2016.
Catchwords:
CRIMINAL LAW - Crown appeals - sentencing - Respondent pleaded guilty to using a carriage service to access child pornography material (s.474.19(1)(a)(i) Criminal Code (Cth)), possession of child abuse material (s.91H(2) Crimes Act 1900 (NSW)) and possession of a prohibited weapon (s. 7(1) Weapons Prohibition Act 1988 (NSW)) - Respondent possessed more than 34,000 items of child abuse material - concurrent terms of 18 months’ imprisonment for each offence to be served by way of Intensive Correction Order - consideration of sentencing principles applicable to child pornography offences - importance of general deterrence and denunciation - failure to assess objective seriousness of the offending - failure to explain how the sentences were arrived at - failure to give principled consideration to questions of concurrency and accumulation - impermissible approach to the use of an Intensive Correction Order - sentences for child pornography offences manifestly inadequate - residual discretion to resentence the Respondent exercised - appeals allowed - Respondent sentenced to terms of fulltime imprisonment for child pornography offences - some accumulation appropriate as between State and Commonwealth child pornography 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 Porte [2015] NSWCCA 174
Case
[2015] NSWCCA 174
Decision Date
CaseChat Overview and Summary
In this matter, the Crown appealed the sentencing of the respondent, who had pleaded guilty to various charges including accessing child pornography material via a carriage service, possession of child abuse material, and possession of a prohibited weapon. The respondent had amassed over 34,000 items of child abuse material. Initially, the court imposed concurrent terms of 18 months’ imprisonment for each offence to be served through an Intensive Correction Order. The Crown argued that the sentences were manifestly inadequate, particularly concerning the child pornography offences, and sought a review of the principles applied in sentencing.
The court identified several legal issues that needed resolution, including the application of sentencing principles specific to child pornography offences, the necessity for general deterrence and denunciation, the assessment of the objective seriousness of the offences, the explanation of how the sentences were determined, the consideration of concurrency and accumulation, and the appropriateness of using an Intensive Correction Order. The court found that the original sentencing process failed to adequately address these issues, leading to an appeal by the Crown.
Upon review, the court found that the sentences were manifestly inadequate for the gravity of the child pornography offences. The court emphasised the importance of general deterrence and denunciation in such cases, noting the failure to properly assess the objective seriousness of the respondent's actions. Additionally, the court highlighted the lack of explanation regarding the sentence calculation and the inadequate consideration of concurrency and accumulation between the state and federal child pornography offences. The use of an Intensive Correction Order was deemed inappropriate for the nature of the offences. Consequently, the Crown's appeals were allowed, and the respondent was resentenced to terms of full-time imprisonment for the child pornography offences. Some accumulation was considered appropriate between the state and Commonwealth child pornography offences.