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Court of Criminal Appeal 10 July 2014

MARTIN, Geoffrey Keith v REGINA

[2014] NSWCCA 124

Sexual offences
SENTENCING POSSESSION OF CHILD ABUSE MATERIAL AGGREGATE SENTENCE TOTALITY SENTENCING.

Citation: MARTIN, Geoffrey Keith v REGINA [2014] NSWCCA 124
Court: NSW Court of Criminal Appeal
Date: 10 July 2014
Judges: Hoeben CJ at CL, Rothman J, Beech-Jones J (judgment delivered by Beech-Jones J)

Background

The appellant was a twice-convicted child sex offender who, in January 2013, was found to possess large quantities of child abuse material across a computer and memory stick. He was also subject to a child protection prohibition order that barred him from associating with a former fellow inmate, himself a convicted offender. Police discovered the two men had remained in contact.

The contact included the appellant composing and sending, via SMS, two fictional stories in serial instalments to the former inmate. Each story described the appellant engaging in sexual acts with a minor: a 13-year-old boy in the first story and an 8-year-old boy in the second. Each instalment gave rise to both a production offence (composing the text) and a dissemination offence (sending it), all under s 91H(2) of the Crimes Act 1900 (NSW).

The District Court sentenced the appellant to an aggregate sentence of six years imprisonment with a non-parole period of four years for the 24 child abuse material offences, plus a separate nine-month fixed term for breaching the prohibition order. The total effective sentence was six and a half years with a four and a half year non-parole period. The appellant sought leave to appeal, contending the indicative sentences were infected by legal error and were manifestly excessive.

  • Whether the sentencing judge erred in accumulating the indicative (notional) sentences that underpinned the aggregate sentence, in particular by double-counting through partial concurrency
  • Whether the indicative sentences for the production and dissemination offences relating to the SMS fiction stories were manifestly excessive
  • Whether the aggregate sentence properly reflected the totality principle
  • The correct commencement date of the aggregate sentence having regard to partial concurrency with the prohibition order sentence

Decision

Beech-Jones J, with whom Hoeben CJ at CL and Rothman J agreed, found that the sentencing judge had made an error in constructing the aggregate sentence. The indicative sentences as arranged produced a partial accumulation that exceeded what was appropriate once the totality principle was applied. This constituted a legal error warranting intervention.

The Court also accepted that the indicative sentences for the SMS production and dissemination offences were manifestly excessive when assessed individually. The SMS stories were written text, not images or video, and while plainly serious, they warranted somewhat lower indicative sentences than those initially imposed. The Court reformulated the indicative sentences, grouping the offences into three clusters: two possession offences (computer and memory stick) and two groups corresponding to each of the two SMS story sequences.

Applying the principle from Cahyadi v R, the Court reduced the aggregate sentence from six years to five years. With a finding of special circumstances already established at first instance, the non-parole period was set at three years and four months. The aggregate sentence was also backdated by three months to 24 April 2013 to account for the proper degree of concurrency with the prohibition order sentence. The sentence for the prohibition order offence itself was not disturbed.

Orders Made

  • Leave to appeal granted
  • Appeal allowed in part
  • The aggregate sentence imposed by the District Court on 30 August 2013 in respect of 24 offences under s 91H(2) of the Crimes Act 1900 was set aside
  • In substitution: an aggregate sentence of five years imprisonment, commencing 24 April 2013 and expiring 23 April 2018, with a non-parole period of three years and four months; earliest parole eligibility date of 23 August 2016
  • Indicative sentences recorded pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999: 3 years for each of the two possession counts; 9 months for each of three production counts and three dissemination counts (first story); 12 months for each of eight production counts (second story)
  • Appeal otherwise dismissed

Key Takeaways

  • Under s 53A of the Crimes (Sentencing Procedure) Act 1999, a sentencing court imposing an aggregate sentence must record indicative sentences for each individual offence, and errors in accumulating those indicative sentences can constitute appealable legal error.
  • The Court of Criminal Appeal confirmed that the totality principle (as articulated in Cahyadi v R) applies to aggregate sentences: even where indicative sentences are individually sound, the resulting aggregate must not be disproportionate to the overall criminality.
  • Written fictional descriptions of child sexual abuse transmitted by SMS can constitute child abuse material for the purposes of s 91H(2) of the Crimes Act 1900, with each act of composing and each act of sending constituting separate production and dissemination offences respectively.
  • In assessing the seriousness of individual offences for indicative sentencing purposes, the nature and form of the material matters: the Court treated text-based SMS fiction as warranting lower indicative sentences than the possession offences involving large quantities of image and video material.
  • Where a sentence for a related summary offence overlaps in time with conduct founding the primary offences, the commencement date of the aggregate sentence may require adjustment to reflect an appropriate degree of concurrency.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 91FB, 91H, 308F
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12, 44, 53A, 54A
- Child Protection (Offenders Prohibition Orders) Act 2004 (NSW), ss 5, 13
- Criminal Procedure Act 1986 (NSW), Ch 1, Pt 3, Div 7
- Crimes Amendment (Sexual Offences) Act 2008 (NSW), Sch 1

Cases
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Pearce v R [1998] HCA 57; 194 CLR 610
- Hili v R; Jones v R [2010] HCA 45; 242 CLR 520
- Minehan v R [2010] NSWCCA 140; 201 A Crim R 243
- PD v R [2012] NSWCCA 242
- R v Brown [2012] NSWCCA 199
- R v Booth [2009] NSWCCA 89
- R v Gent [2005] NSWCCA 370; 162 A Crim R 29
- Khawaja v R [2014] NSWCCA 80
- SHR v R [2014] NSWCCA 94
- R v Grover; Grover v R [2013] NSWCCA 149
- R v Nykolyn [2012] NSWCCA 219
- R v Jarrold [2010] NSWCCA 69
- R v C; Ex parte Commonwealth DPP [2004] QCA 469