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11
Court of Criminal Appeal 23 May 2011

R v Dennison

[2011] NSWCCA 114

Sexual offencesFraud & dishonesty
CRIMINAL LAW APPEAL AGAINST SENTENCE APPEAL DISMISSED COSTS CERTIFICATE REFUSED

Citation: R v Dennison [2011] NSWCCA 114
Court: NSW Court of Criminal Appeal
Date: 23 May 2011
Judges: Whealy JA, McCallum J, Schmidt J

Background

The respondent pleaded guilty in April 2010 to five offences arising from his operation of two paid-membership websites hosting child pornography images and his possession of child pornography material. The websites featured approximately 60,000 and 20,000 images respectively of three Russian girls aged between 13 and 17 years, and the respondent had earned roughly $646,000 in subscription proceeds, which gave rise to a proceeds of crime charge. A further possession offence and an access offence were taken into account as additional matters.

The sentencing judge in the District Court imposed a total effective sentence of 3 years and 4 months, with release after 2 years on a recognisance. The Crown regarded the sentences as inadequate and appealed to the Court of Criminal Appeal on five grounds.

  • Whether insufficient weight was given to the additional offences taken into account under s 16BA of the Crimes Act 1914 (Cth)
  • Whether the sentencing judge erred by giving no weight to specific deterrence
  • Whether insufficient weight was given to the maximum penalties for the offences
  • Whether the sentencing judge erred in finding that substantial concurrence of the child pornography and proceeds of crime sentences was necessary to avoid double punishment
  • Whether the overall sentence was manifestly inadequate

Decision

The Court of Criminal Appeal dismissed the Crown appeal on all grounds, although McCallum J expressly noted that the sentences were "undoubtedly lenient." The court was not persuaded, however, that leniency alone established appellable error.

On the question of the s 16BA matters taken into account, the court found no demonstrated error in the weight attributed to those additional offences. Similarly, the court was not satisfied that the sentencing judge had entirely ignored specific deterrence or had given it so little weight as to constitute error.

Regarding the concurrence of the child pornography and proceeds of crime sentences, the court accepted that the sentencing judge's reasoning, that substantial overlap was required to avoid the prospect of double punishment given the factual connection between the offences, did not disclose appellable error. The proceeds of crime arose directly from the same conduct underpinning the website offences.

The court declined to find the overall sentence manifestly inadequate. While the sentences sat at the lenient end of the range, the Crown had not established that the sentencing judge fell outside the proper exercise of the sentencing discretion. The application for a Suitors' Fund certificate was refused, as the circumstances did not satisfy the requirements of ss 6A or 6C of the Suitors' Fund Act 1951.

Orders Made

  • The appeal was dismissed.
  • The application for a Suitors' Fund certificate was refused.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that leniency alone does not constitute appellable error; the Crown must demonstrate that the sentence fell outside the proper exercise of the sentencing discretion.
  • Where multiple offences arise from a common factual substratum, a sentencing court may find it appropriate to impose substantially concurrent sentences to avoid the risk of double punishment, even where the offences carry different elements.
  • Under s 16BA of the Crimes Act 1914 (Cth), additional offences taken into account must be given appropriate weight, but appellate intervention requires a finding of demonstrated error in the weight attributed, not merely a different view of that weight.
  • A finding that a sentence was "undoubtedly lenient" (as McCallum J described it) does not automatically satisfy the threshold for a successful Crown appeal against sentence.
  • Suitors' Fund certificates under ss 6A and 6C of the Suitors' Fund Act 1951 are not available in all circumstances; the Court of Criminal Appeal has no power to grant a certificate where the statutory conditions are not met, though it may note that a matter could fall within the spirit of the legislation for the Director-General's consideration.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 91H(2)
- Criminal Code Act 1995 (Cth), ss 474.19(1)(a)(i), 474.19(1)(a)(iv), 400.4(1)
- Crimes Act 1914 (Cth), s 16BA
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
- Suitors' Fund Act 1951 (NSW), ss 6A, 6C

Cases
- Pearce v R [1998] HCA 57; (1998) 194 CLR 610
- Lowndes v R [1999] HCA 29; (1999) 195 CLR 665
- R v Pack [1999] NSWCCA 316
- R v Lilley [2000] NSWCCA 57
- R v Gilfillan [2003] NSWCCA 102
- R v MAK; R v MSK [2006] NSWCCA 381
- R v MMK [2006] NSWCCA 272
- R v Huang; R v Siu [2007] NSWCCA 259
- Boreland v Docker (No 2) [2007] NSWCA 275
- R v Mara [2009] QCA 208
- Whiley v R [2010] NSWCCA 53
- Nahlous v R [2010] NSWCCA 58
- Minehan v R [2010] NSWCCA 140
- R v Elphick [2010] NSWCCA 112
- Director of Public Prosecutions (NSW) v Moradian [2010] NSWCCA 27