R v SBR - [2012] NSWCCA 233

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v SBR [2012] NSWCCA 233
Hearing dates: 18 June 2012
Decision date: 18 June 2012
Before: McClellan CJ at CL at [1]
Price J at [34]
Button J at [35]
Decision:
Appeal dismissed

Catchwords: CRIMINAL LAW - appeal - sentence - Crown appeal against sentence - whether identifiably separate periods of imprisonment should have been imposed for counts 1 and 2 - whether sentencing judge failed to properly determine objective seriousness for count 3 - no error demonstrated - appeal dismissed.
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act
Cases Cited: Green v The Queen [2011] HCA 49; (2011) 86 ALJR 36
Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243
R v Cahyodi (2007) NSWCCA 1
R v JW [2010] NSWCCA 49; 77 NSWLR 7
Category: Principal judgment
Parties: Crown (Applicant)
SBR (Respondent)
Representation: Counsel:
R Herps (Applicant/Crown)
J Stratton SC (Respondent)
Solicitors:
Solicitor for Public Prosecutions (Applicant/Crown)
Legal Aid Commission of NSW (Respondent)

File Number(s): 2009/207245
Decision under appeal

Date of Decision:

2011-12-15 00:00:00

Before:

North DCJ

File Number(s):

2009/207245

Judgment

McCLELLAN CJ at CL: The respondent pleaded guilty to three counts concerning child pornography. Counts 1 and 2 alleged that the respondent had produced child pornography contrary to s 91H(2) of the Crimes Act 1900. Count 3 alleged that the respondent had possessed child pornography contrary to the same section. He pleaded guilty shortly before the trial and was afforded a discount of 12½ percent by the sentencing judge. At the time that he was sentenced he asked the judge to take into account a single count of aggravated sexual assault under s 61M(1) of the Crimes Act on a Form 1.

The maximum penalty for each offence was ten years imprisonment. The offence contrary to s 61M(1) of the Act has a standard non-parole period of seven years.

Although the respondent pleaded guilty on 19 October 2010, the matter was not dealt with immediately. It was initially stood over for sentence to 25 February 2011 when submissions were received, however, defence counsel made an application that further reports be obtained and the matter was adjourned for a further six months. The respondent was ultimately sentenced on 15 December 2011, more than twelve months after his original plea.

The sentences imposed were as follows:

Counts 1 and 2:A fixed term of 12months imprisonment, both sentences to date from 9 December 2011.

The form 1 offence was taken into account on count 1.

Count 3:A fixed term of 12 months imprisonment to date from 9 June 2012.

This sentence was made concurrent with the last six months of the sentences in relation to counts 1 and 2.

Accordingly the total effective sentence was one of 18 months imprisonment. The sentencing judge suspended the entirety of the sentence pursuant to s 12 of the Crimes (Sentencing Procedure) Act. Short particulars of each of the counts are as follows:

Count…

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 SBR

Details

AGLC: R v SBR [2012] NSWCCA 233
Case: [2012] NSWCCA 233
Decision Date: 18 June 2012

CaseChat Overview and Summary

The appellant, SBR, appealed against his sentence imposed following his conviction for multiple counts of criminal activity. The Crown appealed against the sentence, arguing that the sentencing judge should have imposed separate periods of imprisonment for counts 1 and 2 and that there was an error in the determination of the objective seriousness for count 3. The case was heard in the court of appeal, where the appellant’s legal team argued that the sentence was appropriate given the circumstances of the case and the sentencing principles applicable.

The court was required to determine whether the sentencing judge erred by not imposing separate periods of imprisonment for counts 1 and 2, and whether the sentencing judge correctly assessed the objective seriousness for count 3. The appeal hinged on the interpretation of sentencing principles and the application of these principles to the facts of the case. The Crown contended that the sentencing judge should have imposed separate sentences for counts 1 and 2 due to their distinct nature, while the appellant maintained that a cumulative sentence was justified due to the interrelated nature of the offences. Additionally, the Crown argued that the sentencing judge failed to adequately determine the objective seriousness for count 3, which affected the overall sentence imposed.

In dismissing the appeal, the court found that the sentencing judge had appropriately exercised their discretion in imposing a cumulative sentence for counts 1 and 2, considering the context and interrelationship of the offences. The court also concluded that there was no error in the assessment of the objective seriousness for count 3. The appeal court upheld the original sentencing decision, finding that the judge had correctly applied the relevant principles and had not erred in any material way. The appellant's appeal was therefore dismissed, and the original sentence remained in place.

Orders