Citation: James v R [2013] NSWCCA 272
Court: Court of Criminal Appeal, New South Wales
Date: 1 November 2013
Judge(s): Emmett JA, Fullerton J, Schmidt J
Background
The applicant was convicted by a jury in the District Court of 17 offences under the Criminal Code Act 1995 (Cth) and the Crimes Act 1900 (NSW). The offences related to the possession and transmission of multiple images and multimedia files of child pornography or child abuse material, as well as using a carriage service to cause offence. He was sentenced on 4 November 2011.
The applicant sought leave to appeal against his sentences. His central complaint was that the sentencing judge had assessed the objective seriousness of the transmission offences at the mid-range, but had done so without sufficient evidence to support that characterisation. The sentencing judge acknowledged that, while he had information about the number of images transmitted for each offence, he did not have information about the content or category range of the files involved in each individual count.
Legal Issues
- Whether the sentencing judge erred in assessing the objective seriousness of counts 1 to 15 (the transmission offences) at the mid-range, given the absence of evidence about the content of the files transmitted
- Whether the sentencing judge erred in placing count 17 (using a carriage service to cause offence) in the mid-range of objective seriousness
- Whether the head sentences and non-parole periods were manifestly excessive
Decision
The Court of Criminal Appeal focused primarily on the first ground, which effectively subsumed the others. The applicant argued that the sentencing judge had assessed objective seriousness by reference to the number of files transmitted, without distinguishing between still images and multimedia files. The actual content of the relevant files was not in evidence, meaning no factual finding of that specific kind could be made.
The Court accepted that it was difficult to see how a finding of mid-range offending could be supported without that evidence. However, it stopped short of concluding that a finding of low-range offending was automatically mandated by its absence.
The Court concluded that the graduated individual sentences imposed for the transmission offences were "suggestive of error," and that at least some appeared to be excessive. Given that each transmission offence attracted an additional accumulated month of sentence, an excessive sentence on any one count could have affected the total sentence imposed. The potential for that error to have infected all transmission counts made a re-sentencing exercise a real possibility.
Rather than proceeding directly to re-sentence, the Court gave the applicant the opportunity to decide whether to adduce further evidence on re-sentencing. It was agreed during argument that, if the applicant elected not to lead further evidence to establish error, the application would be dismissed.
Orders Made
- The applicant was directed to notify the Registrar and the Crown no later than 15 November 2013 whether he proposed to adduce further evidence on re-sentencing.
- The application was listed for further directions on a date convenient to the parties.
- No final determination on the sentence appeal was made at this stage.
Key Takeaways
- Where a sentencing court assesses objective seriousness at the mid-range, but the evidence does not support that characterisation, the resulting sentences may be "suggestive of error," even if low-range offending is not automatically mandated by the evidentiary gap.
- The absence of evidence about file content in child pornography transmission offences can affect the validity of a graduated sentencing exercise, particularly where individual sentences accumulate across multiple counts.
- An error infecting individual transmission counts may have a cascading effect on the total sentence, given the structure of accumulation adopted at first instance.
- The Court of Criminal Appeal confirmed it may offer an applicant the opportunity to adduce further evidence before proceeding to re-sentence, rather than moving immediately to correct the error itself.
- Where an applicant elects not to adduce further evidence to establish the error, the appeal application will be dismissed, placing the onus on the applicant to decide whether to pursue the re-sentencing exercise.
Legislation and Cases Referenced
Legislation:
- Criminal Code Act 1995 (Cth)
- Crimes Act 1900 (NSW)
Cases cited: No cases were cited in the provided text of the judgment.