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Court of Criminal Appeal 18 June 2012

R v SBR

[2012] NSWCCA 233

Sexual offences
CRIMINAL LAW APPEAL SENTENCE CROWN APPEAL AGAINST SENTENCE NO ERROR DEMONSTRATED APPEAL DISMISSED.

Citation: R v SBR [2012] NSWCCA 233
Court: Court of Criminal Appeal, NSW
Date: 18 June 2012
Judge(s): McClellan CJ at CL; Price J; Button J

Background

The respondent pleaded guilty to two counts of producing child pornography and one count of possessing child pornography, all contrary to s 91H(2) of the Crimes Act 1900. The production counts involved photographs taken of a 12-year-old second cousin while she was asleep, exposing her breasts. The possession count related to 235 images found on a CD in the respondent's computer, some of which were classified at high levels on the COPINE scale (an internationally recognised scale for grading the severity of child exploitation imagery). A further count of aggravated sexual assault was taken into account on a Form 1 (meaning it was considered in passing sentence without a separate conviction being recorded).

The respondent was 51 years old at sentencing. Psychiatric and neuropsychological reports raised the possibility of an emerging neurodegenerative condition, and indicated the respondent had begun engaging with psychological treatment. He received a 12.5 percent discount on sentence for his guilty plea.

The sentencing judge imposed a total effective sentence of 18 months imprisonment, fully suspended under s 12 of the Crimes (Sentencing Procedure) Act. The Crown appealed, contending the sentences were manifestly inadequate.

  • Whether the sentencing judge erred by failing to impose identifiably separate periods of imprisonment for counts 1 and 2 rather than imposing concurrent fixed terms from the same date.
  • Whether the sentencing judge failed to properly assess the objective seriousness of count 3 (possession of child pornography).
  • Whether, even if error were found, the Court of Criminal Appeal should exercise its residual discretion to decline to intervene given the respondent's rehabilitation progress.

Decision

McClellan CJ at CL (with Price J and Button J agreeing) acknowledged that the sentence for count 3 may have reasonably been greater, but found that the sentencing judge was entitled to give significant weight to the respondent's progress in rehabilitation. By the time of sentencing, the respondent had embarked on a structured program of psychological counselling, and the sentencing judge concluded that incarceration would disrupt or destroy that progress.

The Crown's submissions effectively conceded that the sentencing remarks did not reveal any error of principle. Rather, the Crown challenged the sentencing judge's discretionary judgments. The Court found those challenges did not establish that the discretion was wrongly exercised.

The Court also noted that, at the time of the appeal, further evidence confirmed the respondent had continued his counselling and maintained a stable residential address. This reinforced the weight properly given to rehabilitation considerations at first instance, and made those matters of even greater significance to the appellate court.

Even if error had been established in respect of any individual count, the Court indicated it would have exercised its residual discretion to decline to intervene, having regard to all the circumstances. The appeal was accordingly dismissed.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that a sentencing judge is entitled to place substantial weight on rehabilitation prospects, particularly where a structured treatment program is underway and would be disrupted by immediate imprisonment.
  • A Crown appeal will not succeed merely by demonstrating that a heavier sentence might have been reasonably imposed; the appellant must show the discretion was exercised wrongly, not merely differently.
  • Where no error of principle is demonstrated and the challenge is limited to discretionary judgments, the appellate court faces a high threshold before interfering with the sentence imposed.
  • Even where error is established, the Court of Criminal Appeal retains a residual discretion to decline to re-sentence, particularly where circumstances at the time of appeal (such as continued rehabilitation) weigh strongly against intervention.
  • Neuropsychological and psychiatric evidence bearing on a respondent's future risk and capacity for rehabilitation can form a legitimate basis for departing from what might otherwise be a custodial term, provided the sentencing court engages carefully with that material.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(1), 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12

Cases
- Green v The Queen [2011] HCA 49; (2011) 86 ALJR 36
- Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243
- R v Cahyodi [2007] NSWCCA 1
- R v JW [2010] NSWCCA 49; 77 NSWLR 7