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Court of Criminal Appeal 6 July 2011

Kumar v R

[2011] NSWCCA 139

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE POSSESSION OF CHILD PORNOGRAPHY PLEA OF NOT GUILTY. SENTENCING PLEA OF NOT GUILTY CLAIMS OF INNOCENCE MADE BY OFFENDER

Citation: Kumar v R [2011] NSWCCA 139
Court: NSW Court of Criminal Appeal
Date: 6 July 2011
Judge(s): Hodgson JA, Adams J, Hall J

Background

The appellant was convicted by jury in the District Court of two offences: using a carriage service to access child pornography (contrary to the Criminal Code Act 1995 (Cth)) and possessing child pornography (contrary to the Crimes Act 1900 (NSW)). The offending involved a substantial volume of deeply serious material, including images and videos depicting the sexual abuse and torture of young children, some as young as two years old, accumulated over a period of approximately a year and nine months.

At trial, the defence argued the prosecution had not excluded the possibility that others, including the appellant's teenage daughter, had downloaded the material. The appellant did not give evidence at trial or at the sentence hearings. After conviction, he told a psychologist and a probation officer that his daughter had confessed to downloading the material. No positive evidence supported that claim.

The sentencing judge imposed an effective head sentence of six years imprisonment with a non-parole period of four years. The appellant appealed on two grounds: that the sentencing judge had improperly used general deterrence to deter others from maintaining false claims of innocence, and that the sentences were manifestly excessive.

  • Whether the sentencing judge erred by treating the need to deter others from "making false claims" of innocence as an aggravating factor or a basis for increased weight on general deterrence
  • Whether the sentences imposed were manifestly excessive when compared with comparable cases

Decision

On the first ground, Adams J found that the sentencing judge's reasons disclosed a genuine error. The relevant passage in the sentencing judge's remarks expressly identified "the need to deter others from making false claims that they did not engage in it when they did" as a factor warranting greater weight in sentencing. The Court of Criminal Appeal held that deterring such claims is not a legitimate sentencing function. An offender maintaining innocence after conviction cannot be punished more harshly for doing so.

Adams J also observed that the appellant's continuing denials were relevant only to the narrower questions of remorse, prospects of rehabilitation, and personal deterrence. It was not the sentencing court's role to treat those denials as requiring the jury's verdict to be re-evaluated or as independently aggravating the sentence.

On manifest excess, Adams J reviewed the comparable cases, including Saddler v R, and concluded that the sentencing judge's characterisation of the appellant's case as worse than all cases to which he had been referred was untenable. In respect of the second count, a sentence of four years against a maximum of five years could not be sustained given the objective criminality involved. Some accumulation between the two counts remained appropriate, given the different conduct underlying each offence.

Orders Made

  • Time for lodging the notice of appeal extended to 1 November 2010
  • Leave to appeal granted; sentences imposed at first instance quashed
  • Count 2 (possession): 2 years imprisonment commencing 11 March 2009, with a non-parole period of 1 year and 6 months commencing 11 March 2009
  • Count 1 (carriage service): 3 years imprisonment commencing 11 March 2010, with a non-parole period of 2 years commencing 11 March 2010
  • Effective overall sentence: 4 years imprisonment with a non-parole period of 3 years

Key Takeaways

  • Deterring offenders or others from maintaining claims of innocence is not a legitimate purpose of sentencing. The Court of Criminal Appeal confirmed that this principle applies even where a sentencing judge regards those claims as false.
  • A convicted person's continuing denial of guilt is relevant to sentencing only on the limited questions of remorse, contrition, prospects of rehabilitation, and personal deterrence; it cannot independently increase the weight given to general deterrence.
  • Where a sentencing court refers to uncharged conduct admitted for tendency purposes, it is desirable to explicitly state that such material is not being taken into account in fixing the sentence, so as to avoid ambiguity.
  • Comparing an offence's objective seriousness against the applicable maximum penalty remains an important check. The Court found it could not sustain a four-year sentence on a charge carrying a five-year maximum on the facts of this case.
  • In dismissing the grounds for treating this case as the worst of its kind, the Court of Criminal Appeal undertook a careful review of comparable sentencing decisions, confirming that consistency with established sentencing patterns is a meaningful constraint on first-instance sentencing discretion.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), s 474.19(1)(a)(i)
- Crimes Act 1900 (NSW), s 91H(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
- Criminal Appeal Act 1912 (NSW)
- Customs Act 1901 (Cth)

Cases
- Ali v R [2010] NSWCCA 35
- Mouscas [2008] NSWCCA 181
- Power v DPP (NSWDC, Unreported, 19 July 2007)
- R v Assheton (2002) 132 A Crim R 237
- R v Booth [2009] NSWCCA 89
- R v Elliott [2008] NSWDC 238
- R v Gent [2005] NSWCCA 370
- R v Jones [2009] NSWDC 8
- R v Leonard [2008] NSWDC 211
- Saddler v R [2009] NSWCCA 83