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10
Court of Criminal Appeal 1 December 2014

R v Martin

[2014] NSWCCA 283

Also reported as (2014) 246 A Crim R 477
Sexual offences
SENTENCE CROWN APPEAL AGAINST SENTENCE CRIMINAL APPEAL ACT 1912, S 5D WHETHER SENTENCE MANIFESTLY INADEQUATE RELEVANT FACTORS SENTENCE CROWN APPEAL AGAINST SENTENCE

Citation: R v Martin [2014] NSWCCA 283
Court: Court of Criminal Appeal
Date: 1 December 2014
Judge(s): Beazley P (primary judgment); R A Hulme J; Garling J (both agreeing)

Background

The respondent pleaded guilty in the District Court to five child pornography offences spanning both New South Wales and Commonwealth legislation. The offences included possessing child abuse material, using a carriage service to access child pornography (two counts), producing child abuse material, and making child pornography available via a carriage service. The underlying conduct involved a large volume of material that the respondent had sorted, stored, and duplicated, and which he attempted to destroy upon learning that police intended to execute a search warrant.

The sentencing judge in the District Court imposed individual sentences for each count, then ordered all five sentences to run concurrently. This produced a total effective sentence of three years imprisonment with a non-parole period of 18 months. The sentencing judge acknowledged the question of partial accumulation but concluded that concurrent sentences could adequately reflect the totality of the criminality.

The Crown appealed under section 5D of the Criminal Appeal Act 1912 (NSW), contending that individual sentences were manifestly inadequate, that the sentencing judge had failed to recognise two aggravating features of the possession offence, and that the fully concurrent structure of the sentences failed to reflect the totality of the offending.

  • Whether the sentence imposed for making child pornography available using a carriage service was manifestly inadequate, having regard to its objective seriousness, the applicable maximum penalty, and the need for general deterrence
  • Whether the sentencing judge erred by failing to treat the sorting, storing and duplication of material, and the attempted destruction of that material upon notice of a police warrant, as aggravating features of the possession offence
  • Whether the sentencing judge erred by ordering all sentences to run concurrently, where the offences of making available and producing child pornography were significantly different in nature from the offences of accessing and possessing it
  • Whether the identified errors were sufficient to warrant appellate intervention, or whether the Court should exercise its residual discretion to dismiss the appeal despite finding error

Decision

The Court of Criminal Appeal allowed all grounds of appeal. On the sentence for making child pornography available via a carriage service, the Court found that the three-year term was manifestly inadequate. The maximum penalty for that offence was 15 years imprisonment, and the Court held that the objective seriousness of the conduct, combined with the strong need for general deterrence in this area, required a substantially heavier sentence.

On the aggravating features of the possession offence, the Court found that the sentencing judge had failed to treat two relevant factors as objective aggravation: the respondent's active sorting, storing and duplication of the material, and his attempt to destroy it once he learned of the impending search warrant. The Court also identified an error of principle in treating the sorting and storing conduct as relevant only to subjective features of the case rather than to the objective seriousness of the offence.

On totality and concurrency, the Court held that a fully concurrent structure was not appropriate where the making available and producing offences were qualitatively different in kind from the accessing and possessing offences. Under the principle in Pearce v R, each separate offence must attract its own punishment, and the overall sentence must reflect all of the offending conduct. The sentencing judge's purely concurrent approach failed to achieve this.

The Court declined to exercise its residual discretion to dismiss the appeal. The errors identified were of a kind that required correction by an appellate court to provide guidance to sentencing courts, which is the primary function of Crown appeals under section 5D.

Orders Made

  • Appeal allowed
  • All sentences imposed by Sweeney DCJ quashed and replaced as follows:
  • Count 4 (producing child abuse material): fixed term of 9 months, commencing 22 November 2013
  • Count 1 (possessing child abuse material): fixed term of 2 years, commencing 22 May 2014
  • Count 2 (accessing child pornography): 2 years imprisonment, commencing 22 May 2014
  • Count 3 (accessing child pornography): 2 years imprisonment, commencing 22 May 2014
  • Count 5 (making available child pornography): 4 years 6 months imprisonment, commencing 22 November 2014
  • Counts 2, 3 and 5 (Commonwealth offences): non-parole period of 3 years commencing 22 May 2014

The restructured sentences produced a total effective sentence of approximately 6 years and 6 months, with a non-parole period considerably longer than the original 18 months.

Key Takeaways

  • A sentencing court's active sorting, storing, and duplication of child abuse material constitutes an objective aggravating feature of a possession offence, not merely a subjective consideration, and must be treated as such when assessing objective seriousness.
  • Attempted destruction of child abuse material upon notice of a police search warrant is likewise an objective aggravating factor that a sentencing court must recognise and apply.
  • Where an offender is sentenced for a series of child pornography offences that are qualitatively different in kind (such as making material available, as opposed to merely possessing or accessing it), a fully concurrent sentencing structure is likely to produce an outcome that fails to reflect the totality of the criminal conduct.
  • Under the Crown appeal jurisdiction in section 5D of the Criminal Appeal Act 1912 (NSW), the Court of Criminal Appeal retains a residual discretion to decline to intervene even where error is shown, but that discretion is unlikely to be exercised where the errors are of a kind that require correction to guide future sentencing practice.
  • General deterrence carries particular weight in sentencing for offences involving the distribution of child pornography via a carriage service, and this must be reflected in the relationship between the sentence imposed and the applicable maximum penalty.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes Act 1900 (NSW), s 91H(2)
- Criminal Code 1995 (Cth), ss 474.19(1)(a)(i), 474.19(1)(a)(iii)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 (Cth)

Cases
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Pearce v R [1998] HCA 57; 194 CLR 610
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- R v Gommeson [2014] NSWCCA 159
- R v Gent [2005] NSWCCA 370; 162 A Crim R 29
- Minehan v R [2010] NSWCCA 140; 201 A Crim R 243
- Director of Public Prosecutions (Cth) v D'Alessandro [2010] VSCA 60; 26 VR 477
- R v Talbot [2009] TASSC 107
- R v Oliver [2003] 1 Cr App R 28
- R v Wall [2002] NSWCCA 42; 71 NSWLR 692
- R v Mereb; R v Younan [2014] NSWCCA 149