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Small v R

Small v R

Case [2020] NSWCCA 216 28 August 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Small v R [2020] NSWCCA 216
Hearing dates: 23 July 2020
Decision date: 28 August 2020
Before: Hoeben CJ at CL at [1]
Johnson J at [2]
Lonergan J at [85]
Decision:
1. Extend time for the Applicant to apply for leave to appeal against sentence to 5 May 2020.
2. Grant the Applicant leave to appeal against sentence.
3. The sentences imposed at the Sydney District Court on 17 November 2017 for offences of failing to comply with reporting obligations contrary to s.17(1) the Child Protection (Offenders Registration) Act 2000 (NSW) (Sequences 3, 4, 5 and 6) and possession of child abuse material contrary to s.91H(2) Crimes Act 1900 (NSW) (Sequence 9) are confirmed.
4. The sentences imposed at the Sydney District Court on 17 November 2017 for Sequences 10 and 11 are quashed. In their place, the Applicant is sentenced as follows:
(i) for using a carriage service to groom a person under the age of 16 years for sexual activity contrary to s.474.27(1) Criminal Code (Cth) (Sequence 10), the Applicant is sentenced to imprisonment for five years and 10 months commencing on 15 August 2018;
(ii) taking into account under s.16BA Crimes Act 1914 (Cth) an offence of using a carriage service to transmit child pornography contrary to s.474.19(1)(a)(iii) Criminal Code (Cth), the Applicant is sentenced for an offence of using a carriage service to solicit child pornography contrary to s.474.19(1)(a)(iv) Criminal Code (Cth) (Sequence 11) to imprisonment for six years and 10 months commencing on 15 August 2019.
5. A single non-parole period is fixed under s.19AB(1) Crimes Act 1914 (Cth) for the offences in Sequences 10 and 11 being a term of four years and five months commencing on 15 August 2018 and expiring on 14 January 2023.
6. The earliest date upon which the Applicant will be eligible for release on parole is 15 January 2023.

Catchwords:
APPEAL – application for extension of time to appeal against sentence – grooming, child pornography, child abuse material and related offences under Commonwealth and State laws – applicant was a registrable person under Child Protection (Offenders Registration) Act 2000 – cybersex offences involving 14 year old victim – applicant sentenced in 2017 before decision in Xiao v R – ground of appeal asserting failure to have regard to utilitarian value of pleas of guilty for Commonwealth offences – Crown concession that appeal should be allowed – assessment of quantified discount for pleas of guilty under s.16A(2)(g) Crimes Act 1914 (Cth) – objective gravity of offences – importance of general deterrence and denunciation on sentence for grooming and child pornography offences – application of quantified discount for pleas of guilty results in small reduction in sentence – application for extension of time granted – applicant re-sentenced

Legislation Cited:
Child Protection (Offenders Registration) Act 2000 (NSW)
Children (Criminal Proceedings) Act (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Criminal…

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 Small v R

Details

AGLC: Small v R [2020] NSWCCA 216
Case: [2020] NSWCCA 216
Decision Date: 28 August 2020

CaseChat Overview and Summary

The appeal concerns a case where the applicant was found guilty of multiple offences, including grooming, possession of child pornography, and related offences under both Commonwealth and State laws. The case came before the court following the applicant's conviction and sentencing in 2017, prior to the High Court decision in Xiao v R. The applicant, who was required to be registered under the Child Protection (Offenders Registration) Act 2000, was involved in cybersex offences involving a 14-year-old victim. The primary legal issue for the court was whether the sentencing judge had appropriately considered the utilitarian value of the applicant's guilty pleas in determining the sentence, particularly in relation to the Commonwealth offences.

The court examined whether the sentencing judge had failed to sufficiently regard the benefits of the applicant's pleas of guilty, as outlined in section 16A(2)(g) of the Crimes Act 1914 (Cth). The Crown conceded that the appeal should be allowed due to this oversight. The court then assessed the impact of applying the quantified discount for pleas of guilty, considering the objective gravity of the offences and the importance of general deterrence and denunciation in sentencing for grooming and child pornography offences. Although the application of the discount resulted in a small reduction in the sentence, the court concluded that the omission to consider the utilitarian value of the pleas warranted a reconsideration of the sentence. The court granted the application for an extension of time to appeal against the sentence and proceeded to re-sentence the applicant.

The final orders of the court included the allowance of the application for an extension of time to appeal against the sentence and the re-sentencing of the applicant, taking into account the quantified discount for the pleas of guilty. This decision underscores the importance of appropriately considering all relevant factors, including the benefits of pleas of guilty, in the sentencing process.

Orders