Citation: Whiley v R [2014] NSWCCA 164
Court: Court of Criminal Appeal, NSW
Date: 20 August 2014
Judge(s): Bathurst CJ; Hoeben CJ at CL; Adams J (with reasons)
Background
The appellant pleaded guilty in the Local Court in November 2011 to 16 counts of dishonestly obtaining property by deception, one count of failing to comply with child protection reporting conditions, and two counts of possessing child pornography. He was sentenced in the District Court in October 2012, together with further matters on two Form 1s (additional offences taken into account without separate punishment).
The child pornography offences related to a thumb drive found hidden in his former boarding house room after his arrest. The drive contained approximately 30,000 images and 126 videos of child abuse material, with a significant proportion falling at the most serious end of the Copine Scale (levels 9 and 10), depicting very young children. The appellant had also previously been convicted of sexual intercourse with a child and had a prior breach of reporting conditions.
The total effective sentence imposed was a non-parole period of 12 years, 7 months and 28 days, with a balance of term of 2 years. The appeal was filed out of time, and the Crown opposed an extension on the basis that the grounds lacked merit.
Legal Issues
- Whether the sentencing judge erred by failing to account for the appellant's assistance to authorities regarding childhood sexual abuse he had suffered (relevant to a possible discount under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW))
- Whether a miscarriage of justice arose from the failure to expressly put that assistance material before the sentencing judge as grounds for a s 23 discount
- Whether the sentencing judge erred in his treatment of the appellant's rehabilitation attempts when sentencing for the child pornography offences
- Whether the sentencing judge made a factual error about the period during which the appellant attempted to enter the CUBIT (sex offender treatment) program
- Whether the sentences for counts 1 and 3 of obtaining by deception were manifestly excessive
Decision
Grounds 1, 1A, 2 and 3 (child pornography, reporting breach, s 23 discount): The Court rejected all these grounds. The material relating to the appellant's disclosure of childhood abuse was before the sentencing judge and was considered in the overall assessment of sentence. The Court found no demonstrated error in how the judge approached the child pornography sentences or the rehabilitation evidence. Any factual imprecision about the CUBIT program period did not affect the outcome in a material way.
Ground 4 (manifest excess in fraud counts 1 and 3): The Court accepted that error had been established. The starting points of four years imprisonment for each of counts 1 and 3, representing a substantial proportion of the 10-year maximum, were not justified by the objective seriousness of those particular offences. The individual sentences for those counts were manifestly excessive.
However, the Crown argued the overall sentence was appropriate for the totality of the criminality involved and that the Court should apply s 6(3) of the Criminal Appeal Act 1912 (NSW) to dismiss the appeal even where error was found. The Court declined this approach. Applying Pearce v The Queen, each offence must be sentenced appropriately in its own right, and the correct sentence for counts 1 and 3 was 12 months with a non-parole period of 9 months. Because the four-month accumulation periods between counts were retained, the overall sentence remained unchanged.
Accordingly, the appeals against counts 1 and 3 were formally upheld and new sentences substituted, but the total effective sentence was unaltered.
Orders Made
- Time to appeal extended
- Leave to appeal against sentence granted
- Sentences for charges 1 and 3 quashed and substituted:
- Charge 1: non-parole period of 9 months commencing 20 October 2010 and expiring 19 July 2011, with an additional term of 3 months expiring 19 October 2011
- Charge 3: non-parole period commencing 20 June 2011 and expiring 19 March 2012, with an additional term of 3 months expiring 19 June 2012
- All other sentences remained unchanged
Key Takeaways
- The Court of Criminal Appeal confirmed that Pearce v The Queen requires each offence to be sentenced appropriately on its own terms, even where the overall sentence is accepted as proportionate to the total criminality involved.
- In dismissing the s 6(3) argument, the Court held that the Crown cannot rely on the correctness of the aggregate sentence to insulate an individually erroneous sentence from correction.
- A s 23 discount under the Crimes (Sentencing Procedure) Act 1999 (NSW) for assistance to authorities is not automatically triggered by the existence of relevant material; the material must be put forward expressly and in a way that engages the provision, though on the facts here no miscarriage resulted.
- Possession of approximately 30,000 images and 126 videos of child abuse material, including large quantities at Copine Scale levels 9 and 10, attracted sentences of 6 years (images) and 4 years (videos), reflecting the very serious objective gravity of such offending.
- The formal correction of two individual sentences that were manifestly excessive did not alter the total term served, illustrating how accumulation structures can absorb adjustments to component sentences.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 192E(1)(a) (obtaining by deception), 91H(2) (possessing child pornography)
- Child Protection (Offenders Registration) Act 2000 (NSW), s 17(1) (breach of reporting conditions)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23 (discount for assistance to authorities)
- Criminal Appeal Act 1912 (NSW), s 6(3) (power to dismiss appeal notwithstanding error)
Cases:
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- RJT v R (2012) 218 A Crim R 490