AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
6
Court of Criminal Appeal 4 November 2014

R v Linardon

[2014] NSWCCA 247

Sexual offences
CRIMINAL LAW GROUNDS OF APPEAL SCOPE SENTENCING MANIFESTLY INADEQUATE INDIVIDUAL OFFENCES

Citation: R v Linardon [2014] NSWCCA 247
Court: NSW Court of Criminal Appeal
Date: 4 November 2014
Judge(s): Bathurst CJ (with Adams J and R A Hulme J agreeing)

Background

The respondent pleaded guilty in the District Court to five offences involving child abuse material. Four were Commonwealth offences under the Criminal Code Act 1995 (Cth), covering the transmission of child pornography, accessing child pornography, transmitting an indecent communication to a child under 16, and an aggravated transmission offence. The fifth was a State offence under the Crimes Act 1900 (NSW) for possessing child abuse material.

The offending involved thousands of images and videos across all five categories of the Oliver Scale (a classification system ranging from erotic posing to sadism and bestiality), transmission of material to multiple email accounts, and extended online communications with a nine-year-old child who was being sexually abused. The chat sessions involved the respondent encouraging and praising the child's abuse, and requesting further material.

On 2 August 2013, the sentencing judge imposed individual sentences structured to run partly concurrently. The Crown appealed under s 5D of the Criminal Appeal Act 1912 (NSW), contending that the individual sentences and the total sentence were each manifestly inadequate.

  • Whether the Crown's ground of appeal was framed broadly enough to encompass a challenge to the adequacy of each individual sentence.
  • Whether the individual sentences were manifestly inadequate, in particular whether the sentencing judge failed to give sufficient weight to general deterrence.
  • Whether the total sentence was manifestly inadequate having regard to the overall criminality and the need for appropriate accumulation across offences of distinct criminal character.
  • Whether the Court of Criminal Appeal should exercise its residual discretion to decline to intervene, even if error were established.

Decision

Bathurst CJ (Adams J and R A Hulme J agreeing) found that the Crown's ground of appeal was sufficiently broad to encompass challenge to each individual sentence. On the question of manifest inadequacy in the individual sentences, the Court found that the sentencing judge had failed to give adequate weight to general deterrence. Given the serious and widespread nature of online child exploitation offences, general deterrence is a particularly significant sentencing consideration.

The Court also found the total sentence manifestly inadequate when viewed against the overall criminality. Each offence was of a distinct criminal character. The transmission offences, the aggravated transmission offence, the indecent communication offence, and the possession offence each involved separate conduct warranting meaningful accumulation. The original structure resulted in excessive concurrency that did not reflect the full gravity of what had been done.

On the question of residual discretion, Bathurst CJ declined to exercise it in the respondent's favour. The Court considered it important to send clear guidance to sentencing courts about the appropriate range for this category of offending, given the prevalence of such offences and the significance of general deterrence. The respondent's subjective features, including his guilty plea and relevant personal circumstances, had been taken into account but did not justify the inadequacy of the original sentences.

The Court resentenced the respondent, imposing longer individual terms and restructuring the accumulation across offences. The effective total sentence was extended substantially, with a single non-parole period of 3 years set for the Commonwealth offences as required by s 19AB of the Crimes Act 1914 (Cth).

Orders Made

  • Appeal allowed.
  • Original sentences quashed and the following substituted:
  • State offence (possession of child abuse material, s 91H Crimes Act 1900 (NSW)): fixed term of 2 years, commencing 25 July 2013, expiring 24 July 2015.
  • Transmission offence (s 474.19(1)(a)(iii) Criminal Code): 2 years and 8 months, commencing 25 November 2013, expiring 24 July 2016.
  • Access offence (s 474.19(1)(a)(i) Criminal Code): 2 years and 8 months, commencing 25 March 2014, expiring 24 November 2016.
  • Aggravated transmission offence (s 474.24A(1)(a)(i) Criminal Code): 3 years, commencing 25 July 2014, expiring 24 July 2017.
  • Indecent communication offence (s 474.27A Criminal Code): 3 years and 4 months, commencing 25 March 2015, expiring 24 July 2018.
  • Single non-parole period for the Commonwealth offences: 3 years, commencing 25 November 2013, expiring 24 November 2016.

Key Takeaways

  • General deterrence carries particular weight in sentencing for online child pornography offences, and a failure to give it adequate consideration can render individual sentences manifestly inadequate.
  • Where multiple offences are of distinct criminal character, meaningful accumulation of sentences is required; excessive concurrency may itself produce a total sentence that fails to reflect overall criminality.
  • The Court of Criminal Appeal confirmed that the residual discretion to decline to intervene, even where sentencing error is established, may properly be withheld where clear sentencing guidance is needed for a category of offending.
  • Under s 19AB of the Crimes Act 1914 (Cth), a single non-parole period must be fixed for multiple Commonwealth offences sentenced together, and this structural requirement interacts with how accumulation is arranged across State and Commonwealth sentences.
  • In applying the principle from Pearce v The Queen and related authorities, each offence warranting separate punishment must be assessed individually before the total sentence is evaluated for proportionality to overall criminality.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 91H
- Criminal Code Act 1995 (Cth), ss 474.19, 474.24A, 474.27, 474.27A
- Crimes Act 1914 (Cth), ss 5D, 16A, 19AB
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases:
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
- Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
- The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383
- Director of Public Prosecutions (Cth) v D'Alessandro [2010] VSCA 60; (2010) 26 VR 477
- Director of Public Prosecutions v Karazisis [2010] VSCA 350; (2010) 31 VR 634
- R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1
- Minehan v The Queen [2010] NSWCCA 140; (2010) 201 A Crim R 243
- R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29
- R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481
- Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378