Whiley v R - [2010] NSWCCA 53

New South Wales
Court of Criminal Appeal

CITATION: WHILEY v R [2010] NSWCCA 53

HEARING DATE(S): 26 March 2010

JUDGMENT DATE:
23 April 2010

JUDGMENT OF: McClellan CJatCL at 1; James J at 2; Rothman J at 76

DECISION: 1. Leave to appeal against the sentences imposed by Judge Bennett on 9 December 2008 granted.
2. Appeal against those sentences allowed.
3. In lieu thereof, sentence the applicant for each offence to a non-parole period of nine months commencing on 25 May 2008 and expiring on 24 February 2009 and a balance of the term of three months commencing on 25 February 2009 and expiring on 24 May 2009.
Unless there is some reason, other than the applicant’s commission of these offences, for holding the applicant in prison, the applicant is entitled to be released immediately.

CATCHWORDS: CRIMINAL LAW — Sentencing — producing child pornography — level of objective seriousness of offence — not produced for distribution — no exploitation or victimisation of any actual child

LEGISLATION CITED: Crimes (Sentencing Procedure) Act
Crimes Act
Customs Act

CASES CITED: R v Gent (2005) 162 A Crim R 29
R v McNaughton (2006) 66 NSWLR 566
R v Paintings, Drawings and Photographic Slides, April 20 1995
R v Stroempl (1995) Can L112283 (Ontario Court of Appeal)
Saddler v R [2009] NSWCCA 83

PARTIES: Grant Neville Whiley - Appellant
The Crown

FILE NUMBER(S): CCA 2008/4165

COUNSEL: R Wilson - Appellant
M M Cinque - Crown

SOLICITORS: S O'Connor (Legal Aid Commission)
S Kavanagh (Solicitor for Public Prosecutions)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2008/4165

LOWER COURT JUDICIAL OFFICER: Bennett DCJ

LOWER COURT DATE OF DECISION: 9 December 2008

2008/4165

McCLELLAN CJ at CL
JAMES J
ROTHMAN J
23 APRIL 2010

WHILEY, Grant Neville v R

Judgment

1 McCLELLAN CJ at CL: I agree with James J.

2 JAMES J: Grant Neville Whiley applied for leave to appeal against sentences imposed on him in the District Court on 9 December 2008 by his Honour Judge Bennett for two offences of producing child pornography.

3 The applicant had stood trial on charges of the two offences at a judge-alone trial conducted by Judge Bennett. At the conclusion of the trial his Honour found the applicant guilty of both offences.

4 For each of the two offences his Honour imposed a sentence consisting of a non-parole period of three years and a balance of the term of one year, commencing on 25 May 2008, the two sentences to be served concurrently. Later in this judgment I will indicate how his Honour came to select 25 May 2008 as the date for the commencement of the sentences.

5 Child pornography is an offence under s 91H of the Crimes Act. It is convenient to refer at this stage to some of the provisions of s 91H, as in force at the time the offences were committed, on 20 June 2007.

6 Section 91H(2) provided:-

“A person who produces or possesses child…

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 Whiley v R

Details

AGLC: Whiley v R [2010] NSWCCA 53
Case: [2010] NSWCCA 53
Decision Date: 23 April 2010

CaseChat Overview and Summary

In this case, the appellant, Whiley, was convicted of producing child pornography. The conviction arose from the discovery of images depicting the sexual abuse of a young child, which the appellant had created using computer-generated imagery. The appeal focused on the level of objective seriousness of the offence and the subsequent sentencing. The court of appeal was tasked with determining whether the sentencing judge appropriately assessed the objective seriousness of the offence, particularly in light of the fact that the images were not produced for distribution and did not involve the exploitation or victimisation of an actual child.

The legal issues before the court included the appropriate weight to be given to the fact that the images were not intended for distribution or distribution, and the lack of actual child exploitation or victimisation. The court had to assess whether these factors significantly reduced the level of objective seriousness of the offence, and consequently, whether the sentence imposed was excessive. The appellant argued that the sentencing judge failed to adequately consider these mitigating factors, leading to an overly harsh sentence.

The court of appeal found that the sentencing judge did not err in assessing the level of objective seriousness. The court emphasised that while the images were not distributed and did not involve the exploitation of an actual child, the creation of such material remained a serious offence with significant community condemnation. The court held that the sentence imposed reflected the gravity of the offence and was not excessive. The appeal was therefore dismissed, with the court affirming the original sentence.

Orders