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Court of Criminal Appeal 23 April 2010

WHILEY v R

[2010] NSWCCA 53

Sexual offences

Citation: Whiley v R [2010] NSWCCA 53
Court: NSW Court of Criminal Appeal
Date: 23 April 2010
Judges: McClellan CJ at CL, James J, Rothman J

Background

The appellant was an inmate at Goulburn Correctional Centre serving sentences for unrelated offences when Corrective Services officers searched his cell in June 2007. They found 18 pages of hand-drawn images and 24 pages of handwritten text, both created by the appellant, depicting children engaged in sexual activity. The material was entirely imaginary: the drawings were not based on photographs, and the text was a sexual fantasy reworking of the television series "The Brady Bunch."

The appellant was charged with two counts of producing child pornography under s 91H of the Crimes Act. At a judge-alone trial, he argued the material was created to assist his entry into a prison rehabilitation program for sex offenders by informing psychologists of his fantasies. The trial judge rejected that explanation, found no defence was established, and convicted him on both counts.

At sentencing, the District Court imposed concurrent sentences of four years each (three-year non-parole period plus a one-year balance). The appellant sought leave to appeal, arguing the sentences were manifestly excessive.

  • Whether the sentencing judge correctly assessed the objective seriousness of the offences, having regard to the fact that the material was entirely imagined, was not distributed, and did not involve the exploitation or victimisation of any real child.
  • Whether the sentences imposed were manifestly excessive in light of that objective assessment.
  • How the court should approach re-sentencing where subjective features were largely absent or unfavourable.

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal, finding that the sentencing judge had erred in placing the offences "somewhere below the middle range" of objective seriousness. The Court held that the correct assessment was that the offences fell near the bottom of the range.

The Court reasoned that several features significantly reduced the objective gravity of the conduct. No real child was exploited or victimised. The material was produced entirely from imagination, without reference to photographs or actual events. It was made solely for the appellant's own sexual gratification and was not produced for distribution.

Although the Court acknowledged the serious nature of child pornography offences generally, it applied the principle from R v McNaughton that objective circumstances set the ceiling for a sentence. The appellant's extensive criminal history, including prior sexual offences, was relevant only to where within that ceiling the sentence should fall, and could not itself elevate the upper boundary.

Taking the offences to fall near the bottom of the objective range and factoring in the effective absence of favourable subjective features, the Court considered that concurrent head sentences of 12 months were appropriate. Because the sentences were backdated to 25 May 2008 (the original commencement date), the appellant had already served the full term by the time of the appeal.

Orders Made

  • Leave to appeal against the sentences imposed by the District Court on 9 December 2008 granted.
  • Appeal against those sentences allowed.
  • For each offence, the appellant sentenced to a non-parole period of nine months commencing 25 May 2008 and expiring 24 February 2009, and a balance of term of three months commencing 25 February 2009 and expiring 24 May 2009.
  • The appellant entitled to immediate release unless held in custody for reasons unrelated to these offences.

Key Takeaways

  • Producing child pornography from pure imagination, without involving or depicting any identifiable real child and without any intent to distribute, places an offence near the bottom of the objective seriousness range under s 91H of the Crimes Act.
  • The Court of Criminal Appeal confirmed, applying R v McNaughton, that objective circumstances set the upper boundary of an appropriate sentence; prior convictions, including serious sexual offences, operate only within that boundary and cannot push it higher.
  • A sentencing court's assessment of objective seriousness is entitled to deference on appeal, but the Court of Criminal Appeal will intervene where the assessment is demonstrably inconsistent with the material facts of the offending.
  • Where head sentences on re-sentencing are backdated to the original commencement date and the appellant has already served the full term, questions of totality and the precise division between non-parole period and balance of term become academic.
  • Rejecting a claimed s 91H(4)(c) defence does not automatically elevate the objective gravity of the offence; the absence of any exploited or victimised child remains a material mitigating factor at the sentencing stage.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), s 91H (producing or possessing child pornography)
- Crimes (Sentencing Procedure) Act (NSW)
- Customs Act (Cth)

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