Standen v The King

[2023] TASCCA 13

[2023] TASCCA 13

COURT:	SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION:	Standen v The King [2023] TASCCA 13
PARTIES:	STANDEN, Christopher John
v
THE KING
FILE NO:	2280/2023
DELIVERED ON:	15 November 2023
DELIVERED AT:	Hobart
HEARING DATE:	15 November 2023
JUDGMENT OF:	Pearce J, Jago J
CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Other matters – Error of fact material to sentence – Sentence imposed on mistaken number of child abuse images accessed.

Aust Dig Criminal Law [3525]

REPRESENTATION:

Counsel:

Appellant:	K Baumeler
Respondent:	K Breckweg

Solicitors:

Appellant:	Phillipa Willshire
Respondent:	Commonwealth Director of Public Prosecutions

Judgment Number:	[2023] TASCCA 13
Number of paragraphs:	5

Serial No 13/2023 File No 2280/2023

CHRISTOPHER JOHN STANDEN v THE KING

REASONS FOR JUDGMENT	COURT OF CRIMINAL APPEAL PEARCE J JAGO J 15 November 2023
Orders of the Court:

1            The appeal is allowed;

1. The sentencing orders made by Geason J on 15 August 2023 are quashed;

2. The sentencing proceedings are remitted for re-hearing before a different judge.

   2   No 2280/2023

CHRISTOPHER JOHN STANDEN v THE KING

REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PEARCE J
JAGO J
15 November 2023

1             This is an appeal against sentence. On 15 November 2023 the Court allowed the appeal, ordered that the sentencing orders made by Geason J on 15 August 2023 be quashed, and remitted the sentencing proceedings for re-hearing before a different judge. These are the reasons for those orders. They need only be brief.

2             The appeal was to be heard by a Court consisting of three judges but, at the last minute, one of the judges became unavailable. The parties did not object to the appeal being determined by a Court consisting of two judges: Criminal Code (Tas), s 400(1).

3             The appellant pleaded guilty to one count of possessing child abuse material accessed using a carriage service contrary to the Criminal Code Act 1995 (Cth), s 474.22A(1), one count of accessing child abuse material contrary to the Criminal Code Act 1995 (Cth), s 474.22(1), and to one count of possessing child exploitation material contrary to the Criminal Code (Tas), s 130C. The sentencing judge imposed a separate sentence for each count but the result was the imposition of a total effective term of imprisonment of two years and eight months from the date of sentence. His Honour ordered that the appellant be released after having served 12 months of the term upon entering into a recognizance in accordance with the Crimes Act 1914 (Cth), s 20(1)(b).

4 The appellant appealed on the sole ground that the sentence was manifestly excessive. However, in the course of preparation of the appeal it became apparent to the respondent that the sentence on the charge under s 474.22(1) of the Commonwealth Code was imposed on the basis that the appellant accessed 22,492 items of child abuse material, that being the number of images said to have been possessed, when the number of items in fact accessed was 5,325. His Honour may be excused for a mistake about the number of images accessed by the appellant because of the confusing nature of the facts put to him at the sentencing hearing. It was not made at all clear that the accessing charge related to only 5,325 of the total number of images. It may have been possible for the sentence to have been varied or rescinded in accordance with the Sentencing Act 1997 (Tas), s 94, but the sentencing judge was not available to correct the error. The notice of appeal was amended to assert specific error. The respondent concedes that the error was a material one and that the exercise of the sentencing discretion across all three counts thereby miscarried. This Court's power to intervene was enlivened: Kentwell v The Queen [2014] HCA 37, 252 CLR 601.

5             It was open to this Court to quash the sentence and re-sentence the appellant: Criminal Code (Tas), s 402(4). However, we determined that it was appropriate and in the interests of justice to remit the matter to the court of trial before a different judge for re-sentence: s 402(4C). That was the agreed position of the parties. Because it will be necessary for the sentencing discretion to be re-exercised we determined that it was just that the sentencing proceedings be conducted afresh.