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31
Court of Criminal Appeal 3 December 2009

SIVELL, Andrew John v R

[2009] NSWCCA 286

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE POSSESSION OF CHILD PORNOGRAPHY

Citation: SIVELL, Andrew John v R [2009] NSWCCA 286
Court: NSW Court of Criminal Appeal
Date: 3 December 2009
Judge(s): McClellan CJ at CL; Fullerton J; Schmidt J

Background

The appellant was found guilty by a jury in the District Court of possessing child pornography contrary to s 91H(3) of the Crimes Act 1900, which at the time carried a maximum penalty of 5 years imprisonment. At the time of his arrest in June 2007, he was also subject to an interim prohibition order under the Child Protection (Offenders Prohibition Orders) Act 2004, which expressly prohibited him from being in the company of anyone under 18. Police found him in breach of that order when they attended the premises where the pornographic material was also discovered.

The sentencing judge in the District Court imposed a total sentence comprising a non-parole period of 1 year and 11 months, partially accumulated on a separate 10-month sentence the appellant had received in the Local Court for breaching the interim prohibition order. The sentencing judge treated the commission of the possession offence while subject to the prohibition order as an aggravating circumstance.

The appellant sought leave to appeal to the Court of Criminal Appeal, arguing both that the aggravation finding was wrong in law and that the overall sentence was manifestly excessive.

  • Whether the sentencing judge erred in finding the possession offence was committed in circumstances of aggravation because the appellant was subject to an interim prohibition order at the time
  • Whether the sentence was manifestly excessive, including by reference to comparable cases reviewed in Saddler v R [2009] NSWCCA 83
  • Whether the availability of summary disposition of the offence (with a 2-year maximum) was a mitigating factor capable of reducing the sentence imposed on indictment
  • Whether the sentencing judge's use of "objective seriousness" language (normally associated with standard non-parole period offences) constituted error, given that the possession offence does not attract a standard non-parole period

Decision

The Court granted leave to appeal but dismissed the appeal. Fullerton J (with Schmidt J agreeing) found that the sentencing judge was entitled to treat the existence of the interim prohibition order as an aggravating factor. The order existed precisely to protect children from sexual harm, and committing a child pornography offence while subject to that order fell squarely within the concept of offending during a period of conditional liberty.

On the question of manifest excess, the Court rejected the comparison with cases reviewed in Saddler v R. In each of those cases, the offender had entered a guilty plea and many had no prior convictions or significant subjective mitigating factors. The appellant here had contested the charge and had nothing mitigating his conduct, placing his case in a materially different position from those relied upon.

The Court also dismissed the argument that the theoretical availability of summary disposal should operate to reduce the sentence. Because the appellant had elected trial on indictment in the District Court, the District Court's jurisdiction was properly exercised by reference to the maximum indictable penalty. The Court confirmed that the bare possibility of summary disposition does not suffice as mitigation, particularly where the election to proceed on indictment was the offender's own.

McClellan CJ at CL added an important observation about sentencing language. The sentencing judge had described the offence as falling in the "mid range of objective seriousness," language that properly belongs to offences carrying a standard non-parole period. Because this offence carried no standard non-parole period, the Chief Judge cautioned that using such language risked conflating two distinct concepts: "objective seriousness" (relevant to calibrating a standard non-parole period) and the broader "seriousness of the offence" (relevant to fixing both the total term and non-parole period across all relevant objective and subjective factors). The Chief Judge found no appellable error on the facts but flagged that care should be taken with this distinction.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that being subject to an interim child protection prohibition order at the time of offending can constitute a circumstance of aggravation for sentencing purposes, as such orders are designed to protect children from the very harm the offence involves.
  • A significant distinction exists between "objective seriousness" and "seriousness of the offence": the former is a technical concept tied specifically to offences carrying a standard non-parole period, while the latter is the broader consideration used when determining both the total term and non-parole period for any offence.
  • Sentencing courts should exercise caution when using "objective seriousness" language for offences that do not attract a standard non-parole period, as that language carries a technical meaning connected to the R v Way framework that may not be appropriate outside that context.
  • No error arises merely because a sentencing judge uses "objective seriousness" language for a non-standard non-parole period offence, provided the sentence itself is not shown to be manifestly excessive on all the relevant material.
  • The theoretical availability of summary prosecution cannot operate as meaningful mitigation where the offender has elected trial on indictment, and comparative sentences from cases with substantive mitigating factors such as guilty pleas or no prior convictions carry limited weight where no equivalent factors are present.

Legislation and Cases Referenced

Legislation
- Child Protection (Offenders Prohibition Orders) Act 2004 (NSW)
- Child Protection (Offenders Registration) Act 2000 (NSW)
- Crimes Act 1900 (NSW), s 91H(2) and s 91H(3)
- Crimes Amendment (Sexual Offences) Act 2008 (NSW)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44
- Criminal Procedure Act 1986 (NSW), s 260

Cases
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- R v AJP [2004] NSWCCA 434; 150 A Crim R 575
- Saddler v R [2009] NSWCCA 83
- Edwards v R [2009] NSWCCA 199
- Mouscas v R [2008] NSWCCA 181
- Porter v R [2008] NSWCCA 145
- R v Booth [2009] NSWCCA 89
- R v Gent [2005] NSWCCA 370; 162 A Crim R 29
- R v Cicekdag [2004] NSWCCA 357; 150 A Crim R 299
- R v Oliver [2003] 1 Cr App R 28
- Power v DPP (NSWDC, 19 July 2007, unreported)
- R v Elliott [2008] NSWDC 238
- R v Leonard [2008] NSWDC 211
- R v Jones [2009] NSWDC 8