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Court of Criminal Appeal 19 February 2013

KW v R

[2013] NSWCCA 31

Sexual offences
CRIMINAL LAW APPEAL SENTENCING POSSESSION OF CHILD PORNOGRAPHY PRODUCE CHILD PORNOGRAPHY AGGRAVATED INDECENT ASSAULT

Citation: KW v R [2013] NSWCCA 31
Court: NSW Court of Criminal Appeal
Date: 19 February 2013
Judges: Simpson J (with Harrison J and Adamson J agreeing)

Background

The applicant was convicted after trial in the District Court on four counts: aggravated indecent assault of his 21-month-old daughter, three counts of producing child pornography (photographing his daughter and son in a sexual or indecent manner), and one count of possessing child pornography (to which he had pleaded guilty). All offences carried a maximum penalty of 10 years imprisonment.

The offences came to light after the applicant left his mobile phone at a Centrelink office, where it was found by a member of the public who discovered the images and handed the phone to police. A subsequent search of his home uncovered a substantial volume of child pornography stored on a laptop and associated devices.

In March 2011, the District Court sentenced the applicant to 9 years imprisonment with a non-parole period of 8 years for the aggravated indecent assault (Count 1), with all other sentences running concurrently and subsumed within that head sentence. The applicant sought leave to appeal on the ground that the sentences were excessive, relying in part on the High Court's decision in Muldrock v The Queen.

  • Whether the sentencing judge erred in the way the standard non-parole period was applied, in light of the High Court's ruling in Muldrock v The Queen [2011] HCA 39
  • Whether the sentencing judge fell into The Queen v de Simoni error by taking into account circumstances that would have warranted a more serious charge
  • Whether the sentence imposed for Count 1 was manifestly excessive

Decision

The Court of Criminal Appeal upheld all three grounds of appeal. On the first ground, the Court found that the sentencing judge had misapplied the standard non-parole period for the aggravated indecent assault offence. Following Muldrock, the standard non-parole period is one of two legislative guideposts to be weighed alongside all other relevant sentencing factors, rather than a mandatory starting point or dominant consideration. The sentencing judge's approach did not reflect this.

On the de Simoni ground, the Court found that the sentencing judge had taken into account conduct that went beyond what the jury had actually found the applicant guilty of, amounting to an error of law. Sentencing a person for circumstances not established by the verdict is impermissible under the principle in de Simoni.

Because the first ground succeeded, the third ground (manifest excess) followed as a necessary consequence. The head sentence of 9 years with an 8-year non-parole period was set aside. The Court re-sentenced the applicant, giving effect to a finding of special circumstances (which the sentencing judge had made but felt unable to apply) by restructuring the overall sentence with a longer parole period relative to the total term. The Court also determined that, given the reduced head sentence, total concurrency with the other counts was no longer appropriate, and some accumulation was warranted.

Orders Made

  • Leave to appeal granted
  • Appeal allowed; all sentences set aside
  • Applicant re-sentenced as follows:
  • Count (v) (possess child pornography): 3 years and 9 months, commencing 7 April 2010, with a non-parole period of 2 years and 9 months
  • Counts (ii)–(iv) (produce child pornography): fixed term of 1 year and 6 months, commencing 7 January 2011 (no non-parole period set, as fully subsumed)
  • Count (i) (aggravated indecent assault): 5 years and 6 months, commencing 7 April 2011, with a non-parole period of 4 years and 3 months
  • Aggregate sentence: 6 years and 6 months with a non-parole period of 5 years and 3 months; earliest parole eligibility date of 6 July 2015

Key Takeaways

  • Following Muldrock v The Queen, the standard non-parole period must be treated as one of two legislative guideposts, not as a dominant or threshold consideration; a sentencing judge who elevates it beyond that role commits a legal error warranting intervention on appeal.
  • Under the de Simoni principle, a sentencing judge cannot increase a sentence by reference to conduct that would have supported a more serious charge than that of which the offender was convicted.
  • Where a standard non-parole period is misapplied, the resulting sentence will ordinarily be found manifestly excessive, as the two grounds are closely linked.
  • A finding of special circumstances (justifying a longer than usual parole period relative to the head sentence) that a sentencing judge makes but then fails to give effect to can be applied on re-sentencing by an appellate court.
  • In re-sentencing, the Court of Criminal Appeal may restructure concurrent sentences so that some accumulation applies where a significantly reduced head sentence would otherwise fail to reflect the totality of the offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(2), 66A, 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 4 Div 1A, ss 44, 45(1), 54B

Cases:
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- The Queen v de Simoni [1981] HCA 31; 147 CLR 383
- R v Way [2004] NSWCCA 131; 60 NSWLR 168
- GSH v The Queen; The Queen v GSH [2009] NSWCCA 214