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18
Court of Criminal Appeal 3 August 2012

Cargnello v Director of Public Prosecutions (Cth)

[2012] NSWCCA 162

Also reported as (2012) 224 A Crim R 204
Sexual offences
CRIMINAL LAW APPEAL CONVICTION 227 CLR 532 APPEAL CONVICTION

Citation: Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162
Court: NSW Court of Criminal Appeal
Date: 3 August 2012
Judges: Basten JA; Price J; S G Campbell J (all agreeing)

Background

The appellant was convicted by a jury in September 2009 on 12 counts under Commonwealth law. Seven counts related to the importation of child pornography, four counts alleged encouragement of sexual intercourse with a child under 16 years of age outside Australia (contrary to s 50DB of the Crimes Act 1914 (Cth)), and one count involved using the internet to access child pornography. The offending covered conduct across a range of dates between March 2000 and August 2006.

In December 2009, the appellant was sentenced in the District Court to a total term of six years and six months imprisonment, with a non-parole period of four years. The persons the appellant was alleged to have encouraged were not identified as Australian citizens or residents.

The appellant challenged both his convictions on counts 8 to 11 (the encouragement offences) and the sentences imposed for those offences. He also sought leave to raise several other grounds concerning the conduct of the trial.

  • Whether s 50DB of the Crimes Act 1914 (Cth) requires the person being encouraged to engage in sexual intercourse with a child outside Australia to be an Australian citizen or resident
  • Whether the trial judge erred in refusing to direct the jury to acquit where an alibi account might reasonably have been true
  • Whether defence counsel should have been permitted to split the closing address
  • Whether the trial judge's direction on tendency evidence was erroneous
  • Whether the sentences for the encouragement offences were manifestly excessive, and whether proper account was taken of extra-curial punishment
  • Whether the sentencing judge erred by imposing identical, wholly concurrent sentences for offences with overlapping elements

Decision

Citizenship requirement under s 50DB. The Court rejected the argument that the recipient of the encouragement must be an Australian citizen or resident. Section 50AD prevents a non-citizen, non-resident from being charged with the underlying offence of engaging in sexual intercourse with a child abroad, but that citizenship restriction does not carry across as an element of the encouragement offence under s 50DB. The High Court's reasoning in XYZ v The Commonwealth (2006) 227 CLR 532 was applied.

Alibi direction and conduct of the trial. The Court found that the evidence of the appellant's awareness of the child pornography on his computer was, by the jury's assessment, overwhelming. No witness for the defence gave evidence of knowledge of the material or of manipulating it. Because the appellant had not requested a redirection, and because the grounds advanced were inconsistent with the way the trial was conducted, leave to raise those grounds under r 4 of the Criminal Appeal Rules was refused. The same approach was taken to the split closing address and tendency evidence grounds: no miscarriage of justice was demonstrated, and leave was refused.

Extra-curial punishment. The Court confirmed that no sentencing reduction is warranted for consequences that will be common to all offenders serving custodial sentences, such as loss of business value following arrest. The Court also observed that it is not generally appropriate for wealthy or well-known offenders to receive lesser sentences on the basis that they have more to lose from conviction. A distinction must be drawn between consequences suffered by the offender personally and consequences suffered by family members or associates.

Concurrent identical sentences. The Court found a sentencing error: by imposing separate but wholly concurrent and identical sentences for the encouragement offences, the sentencing judge had effectively punished the appellant more than once for the same overlapping elements of criminality, contrary to the principle in Pearce v The Queen (1998) 194 CLR 610. The Court resentenced the appellant, partially accumulating the sentences on counts 8, 9 and 11, while keeping count 10 wholly concurrent with count 11. The overall non-parole period of four years was confirmed unchanged.

Orders Made

  • Appeal against conviction on counts 8 to 11 dismissed
  • Leave to appeal against conviction on counts 1 to 7 and 12 refused
  • Leave to appeal against sentences on counts 8 to 11 granted
  • Sentences on counts 8 to 11 quashed and the appellant resentenced as follows:
  • Count 8: three years imprisonment commencing 8 March 2011, terminating 7 March 2014
  • Count 9: three years imprisonment commencing 8 March 2012, terminating 7 March 2015
  • Count 10: three months imprisonment commencing 8 March 2013, terminating 7 June 2013
  • Count 11: three years imprisonment commencing 8 March 2013, terminating 7 March 2016
  • Non-parole period of four years confirmed, commencing 8 September 2009 and expiring 7 September 2013

Key Takeaways

  • Citizenship of the person encouraged is not an element of the encouragement offence under s 50DB of the Crimes Act 1914 (Cth). The citizenship restriction in s 50AD applies only to the person who directly engages in the sexual conduct abroad, not to the target of encouragement.
  • Under the principle in Pearce v The Queen, imposing wholly concurrent and identical sentences for offences that share overlapping elements of criminality constitutes a sentencing error. Courts must account for the commonality by adjusting either the length or the degree of concurrency.
  • No allowance in sentencing should be made for the financial or reputational consequences of conviction that are common to custodial sentences generally. Wealthier or more prominent offenders are not entitled to a sentencing discount on the basis that they have more to lose.
  • Where a defendant seeks to raise grounds on appeal that were not objected to at trial and that are inconsistent with how the trial was conducted, the Court of Criminal Appeal may refuse leave under r 4 of the Criminal Appeal Rules, particularly where no miscarriage of justice is demonstrated.
  • In sentencing for encouragement offences, culpability is likely to be higher where it can be shown that the encouraged conduct actually occurred, though the number of persons encouraged and the specificity of any identified victim are also relevant considerations.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 50AA, 50AD, 50BA, 50BC, 50CA, 50CB, 50DA, 50DB, ss 5, 6, 7A, 16A, 19
- Criminal Code Act 1995 (Cth), s 474.19
- Customs Act 1901 (Cth)
- Evidence Act 1995 (NSW), s 97
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Appeal Rules (NSW), r 4
- Judiciary Act 1903 (Cth), s 68
- Acts Interpretation Act 1901 (Cth), s 13
- Constitution, s 51(xxix)

Cases
- XYZ v The Commonwealth [2006] HCA 25; 227 CLR 532 (applied)
- Pearce v The Queen [1998] HCA 57; 194 CLR 610 (applied)
- Johnson v The Queen [2004] HCA 15; 78 ALJR 616 (applied)
- Toben v Jones [2003] FCAFC 137; 199 ALR 1 (referred to)
- Einfeld v The Queen [2010] NSWCCA 87; 200 A Crim R 1 (referred to)
- R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66 (applied)
- R v Van Der Zyden [2012] QCA 89 (disapproved)
- R v Wicks [2005] NSWCCA 409; R v Percival [2001] NSWCCA 429; R v Pearson [2005] NSWCCA 116; Kaye v The Queen [2004] WASCA 227 (discussed)
- R v Knight [2005] NSWCCA 253; 155 A Crim R 252; R v Merrin [2007