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91
Court of Criminal Appeal 7 July 2010

Minehan v R

[2010] NSWCCA 140

Also reported as (2010) 201 A Crim R 243
Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE GROUNDS FOR INTERFERENCE CHILD PORNOGRAPHY ERROR AS TO MAXIMUM PENALTY WHETHER MORAL CULPABILITY REDUCED

Citation: Minehan v R [2010] NSWCCA 140
Court: NSW Court of Criminal Appeal
Date: 7 July 2010
Judge(s): Macfarlan JA, Johnson J, R A Hulme J

Background

The appellant pleaded guilty in the District Court to nine offences involving child pornography and related conduct. The offences included using a carriage service in an offensive manner, disseminating child pornography, transmitting child pornography via a carriage service, possessing child pornography, and using a carriage service to groom a person under 16 for sexual activity. The offending occurred across a period in mid-to-late 2007 and involved, among other things, sexual conversations with schoolboys, meetings with undercover police officers during which the appellant produced and distributed pornographic material, and online grooming of a young person.

The District Court imposed an aggregate sentence of 6 years and 4 months, with a non-parole period of 4 years commencing 15 December 2007. The appellant sought leave to appeal against sentence on three grounds, challenging the sentencing judge's treatment of the maximum penalty applicable to certain counts, the judge's approach to the appellant's mental condition, and whether the overall sentence was manifestly excessive.

  • Whether the sentencing judge erred by applying an incorrect maximum penalty to certain counts, specifically whether the judge treated the maximum for possessing child pornography (5 years) as though it were higher
  • Whether the sentencing judge incorrectly assessed the appellant's moral culpability by failing to give adequate weight to his mental condition
  • Whether the sentences imposed on counts 6 to 9 were manifestly excessive in light of the applicable maxima and sentencing principles
  • Whether technical errors in the sentencing structure, arising from the interaction of Commonwealth and State sentencing regimes, required correction

Decision

The Court of Criminal Appeal upheld grounds 2 and 3 but dismissed ground 1. On the maximum penalty issue, the Court found that the sentencing judge had erred in respect of counts 7 and 8 (possession of child pornography), treating the maximum penalty as though it were higher than the 5-year maximum that applied at the time of the offences. That error infected the sentences imposed on those counts.

On the mental condition ground, the Court accepted that the sentencing judge had not adequately addressed how the appellant's psychological state bore on his moral culpability. While a mental condition does not automatically reduce culpability, the Court found that the judge's treatment of this factor was insufficient given the evidence before the court.

The Court also identified technical errors in the original sentencing orders arising from the requirements of the federal sentencing regime. Where Commonwealth offences are combined and the total term exceeds three years, the sentencing court is required to fix a single non-parole period or make a recognizance release order under the Crimes Act 1914 (Cth). The original orders had not done so correctly for counts 6 and 9. The Court corrected these errors on re-sentencing.

In re-sentencing, the Court confirmed the sentences for counts 1 to 5, quashed those for counts 6 to 9, and substituted new sentences. The revised approach produced an effective total term of approximately 5 years and 2 months with a non-parole component of around 3 years and 3 months, reflecting a 20 per cent reduction for guilty pleas and maintaining the conventional 60 to 66 per cent ratio of non-parole period to total term applicable to Commonwealth sentences.

Orders Made

  • Leave to rely upon ground 3 granted
  • Leave to appeal granted
  • Appeal allowed
  • Sentences for counts 1 to 5 confirmed
  • Sentences for counts 6 to 9 quashed and replaced as follows:
  • Count 7: Non-parole period of 1 year 6 months, balance of 6 months; commencing 15 December 2008, total term expiring 14 December 2010
  • Count 8: Non-parole period of 1 year 9 months, balance of 7 months; commencing 15 April 2009, total term expiring 14 August 2011
  • Count 6: 3 years imprisonment commencing 15 October 2009, expiring 14 October 2012
  • Count 9: 3 years imprisonment commencing 15 February 2010, expiring 14 February 2013
  • Single non-parole period of 1 year 5 months set for counts 6 and 9, dating from 15 October 2009 and expiring 14 March 2011

Key Takeaways

  • An error in identifying the applicable maximum penalty for an offence constitutes a sentencing error capable of vitiating the sentence, even where the resulting term might otherwise appear proportionate on its face.
  • Under the federal sentencing regime in the Crimes Act 1914 (Cth), where Commonwealth offences are sentenced together and the combined term exceeds three years, the sentencing court must fix a single non-parole period or make a recognizance release order; failure to do so is a correctable error.
  • The Court of Criminal Appeal confirmed that a conventional ratio of 60 to 66 per cent of the total term as the non-parole component is generally regarded as appropriate when sentencing for Commonwealth offences, and that ratio should be maintained on re-sentencing.
  • A sentencing judge is required to meaningfully engage with evidence of a psychiatric or psychological condition when assessing moral culpability; insufficient treatment of that evidence can constitute a ground of appellate intervention.
  • Guilty pleas attracted a 20 per cent discount in the re-sentencing calculation, illustrating the court's application of the established approach to utilitarian value in this context.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 474.17, 474.19, 474.27
- Crimes Act 1900 (NSW), ss 91H(2), 91H(3)
- Crimes Act 1914 (Cth), ss 16BA, 19AB, 19AC, 19AH
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Amendment (Sexual Offences) Act 2008 (NSW)
- Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No 2) 2004 (Cth)

Cases:
- Cahyadi v R [2007] NSWCCA 1
- Baxter v Regina [2007] NSWCCA 237
- Majid v R [2010] NSWCCA 121
- Mouscas v R [2008] NSWCCA 181
- R v Gent [2005] NSWCCA 370
- R v Hemsley [2004] NSWCCA 228
- The Queen v De Simoni (1981) 147 CLR 383
- Director of Public Prosecutions (Cth) v D'Alessandro [2010] VSCA 60
- Maldonado v R [2009] NSWCCA 189
- McEwen v Simmons & Anor [2008] NSWSC 1292