McClellan CJatCL at 1; Fullerton J at 7; Schmidt J at 36
DECISION:
1. Leave to appeal is granted. 2. The appeal is dismissed.
CATCHWORDS:
CRIMINAL LAW - appeal against sentence - whether sentence is manifestly excessive - possession of child pornography - difference between "objective seriousness" and "seriousness of an offence" - whether offence committed whilst on conditional liberty - applicant subject to interim prohibition order at time of offence
T & A Legal (App) Solicitor for Public Prosecutions (Resp)
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
07/11/0639
LOWER COURTJUDICIAL OFFICER:
Payne DCJ
LOWER COURT DATE OF DECISION:
12 November 2008
2007/15128
McCLELLAN CJ at CL FULLERTON J SCHMIDT J
3 DECEMBER 2009
ANDREW JOHN SIVELL v R
Judgment
1 McCLELLAN CJ at CL
: I agree generally with the reasons of Fullerton J and add the following further observations.
2 The sentencing judge described the offence as lying in the mid range of “objective seriousness” but toward the lower end of that range. In so doing the language used by her Honour was that which is appropriate when sentencing for an offence which attracts a sentence which includes a standard non-parole period. The present offence does not attract a standard non-parole period.
3 Although a sentencing judge must always identify the seriousness of the offence, caution should be exercised when using language relevant to an offence which attracts a standard non-parole period. The relevant principles were discussed by this Court in R v Way (2004) NSWCCA 131; 60 NSWLR 168: see also R v AJP (2004) NSWCCA 434; (2004) 150 A Crim R 575.
4 When assessing where an offence lies in the range of objective seriousness when the offence attracts a standard non-parole period it is important to put aside considerations…
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.
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Details
AGLC
Sivell v R [2009] NSWCCA 286
Case
[2009] NSWCCA 286
Decision Date
CaseChat Overview and Summary
The case involves an appellant who appealed against his sentence for possessing child pornography. The appellant had previously been convicted of child pornography offences and was on conditional liberty at the time of the offence. He was also subject to an interim prohibition order prohibiting him from possessing or accessing child pornography. The appeal was heard in the High Court of Australia.
The central legal issues were whether the sentence was manifestly excessive and whether the seriousness of the offence was affected by the fact that it was committed while the appellant was on conditional liberty and subject to an interim prohibition order. The appellant argued that the sentence should be reduced due to these factors, while the respondent argued that the sentence was appropriate given the seriousness of the offence.
The High Court held that the sentencing judge had considered the appellant's conditional liberty and interim prohibition order when imposing sentence, and that these factors did not affect the "objective seriousness" of the offence. The Court also noted that the "seriousness of an offence" is a separate concept from the "objective seriousness" of an offence, and that the sentencing judge had appropriately considered both concepts when imposing sentence. The Court found that the sentence was not manifestly excessive and dismissed the appeal.