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53
Court of Criminal Appeal 10 July 2015

R v De Leeuw

[2015] NSWCCA 183

Sexual offences
CRIMINAL LAW CROWN APPEAL SENTENCING SENTENCES MANIFESTLY INADEQUATE APPEAL ALLOWED

Citation: R v De Leeuw [2015] NSWCCA 183
Court: Court of Criminal Appeal, NSW
Date: 10 July 2015
Judge(s): Ward JA, Johnson J, Garling J

Background

The respondent pleaded guilty in the Sydney District Court to three counts of using a carriage service to access child pornography (under s 474.19(1)(a)(i) of the Criminal Code (Cth)) and one count of possessing child abuse material (under s 91H(2) of the Crimes Act 1900 (NSW)). Two further possession offences were taken into account on a Form 1 (a mechanism by which additional offences are acknowledged at sentencing without separate conviction). The offending spanned approximately seven years, from August 2005 to January 2013.

AFP agents executed a search warrant at the respondent's home in August 2013 and located over 32,000 images, videos, and documents classified as child abuse material across computer hardware, USB keys, and CDs. The material ranged across all six categories of the CETS (Child Exploitation Tracking System) scale, including material depicting penetrative sexual activity, sadism, and humiliation involving children.

The District Court sentenced the respondent to a total effective term of two years imprisonment, directed to be served by way of an Intensive Correction Order (ICO) rather than full-time custody. The Crown appealed on the grounds that the sentences were manifestly inadequate.

  • Whether the sentencing judge failed to give proper regard to the nature and circumstances of the offending
  • Whether the sentencing judge failed to apply correct principles governing concurrency, accumulation, and totality in structuring the sentences
  • Whether the sentencing judge failed to give adequate weight to general deterrence and denunciation
  • Whether undue weight was given to the respondent's subjective circumstances
  • Whether the sentences were manifestly inadequate such that the Court of Criminal Appeal should exercise its residual discretion to resentence the respondent
  • Whether some accumulation between State and Commonwealth sentences was appropriate

Decision

The Court of Criminal Appeal allowed the Crown appeal, with all three judges agreeing that the original sentences were manifestly inadequate. Johnson J (with whom Ward JA and Garling J agreed) identified multiple errors in the District Court's approach: inadequate regard to the scale and seriousness of the offending, failure to properly apply principles of concurrency and accumulation, and insufficient weight given to general deterrence and denunciation as sentencing objectives.

The Court found that the sentencing judge had given undue weight to the respondent's subjective circumstances, to the point where those matters overshadowed the objective gravity of the conduct. Possessing more than 32,000 items of child abuse material over a seven-year period, including material in the most serious CETS categories, represented offending of considerable seriousness that warranted a full-time custodial sentence.

Having found error, the Court exercised the residual discretion to resentence. It determined that some accumulation between the State and Commonwealth sentences was appropriate, resulting in a total effective head sentence of three years with an effective non-parole period of one year and nine months, both running from 6 March 2015. The ICO was replaced with full-time imprisonment.

Orders Made

  • Crown appeals allowed
  • Sentences imposed in the Sydney District Court on 27 February 2015 set aside
  • In place of those sentences:
  • Sequence 11 (accessing child pornography, 2005): 15 months imprisonment, commencing 6 March 2015, expiring 5 June 2016
  • Sequence 2 (accessing child pornography, 2006 to 2010): 18 months imprisonment, commencing 6 March 2015, expiring 5 September 2016
  • Sequence 12 (accessing child pornography, 2010 to 2013): 21 months imprisonment, commencing 6 March 2015, expiring 5 December 2016
  • Sequence 1 (possession of child abuse material, taking into account two Form 1 offences): non-parole period of 15 months commencing 6 September 2015, expiring 5 December 2016; balance of term of 15 months commencing 6 December 2016, expiring 5 March 2018
  • Respondent to be released to parole on 5 December 2016

Key Takeaways

  • A total effective sentence of two years served by way of an ICO was found to be manifestly inadequate for offending involving more than 32,000 items of child abuse material accumulated over seven years, spanning the most serious categories of the CETS scale.
  • General deterrence and denunciation are weighty sentencing considerations in child pornography cases; the District Court's failure to give them proper effect constituted a sentencing error.
  • Under established Crown appeal principles, a court must be satisfied that the original sentence was so inadequate as to justify intervention; once that threshold is met, the residual discretion not to intervene will not readily be exercised where the error is of that magnitude.
  • Some accumulation between State and Commonwealth sentences is permissible and may be required where the offences are distinct in character and the totality principle does not demand full concurrency.
  • Where a successful Crown appeal displaces an ICO, the resentencing commencement date is calculated from the date on which the offender began serving the ICO, consistent with the approach taken in earlier Court of Criminal Appeal decisions including R v Hinchliffe [2013] NSWCCA 327.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), s 474.19(1)(a)(i)
- Crimes Act 1900 (NSW), ss 91H(2), 91FB
- Crimes Act 1914 (Cth), s 19AB(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 50
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Criminal Appeal Act 1912, s 5D

Cases
- House v The King [1936] HCA 40; 55 CLR 499
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- Hili v The Queen [2010] HCA 45; 242 CLR 520
- CMB v Attorney General for NSW [2015] HCA 9; 89 ALJR 407
- Johnson v The Queen [2004] HCA 15; 78 ALJR 616
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Everett v The Queen [1994] HCA 49; 181 CLR 295
- DPP (Cth) v D'Alessandro [2010] VSCA 60; 26 VR 477
- Director of Public Prosecutions (Cth) v Guest [2014] VSCA 29
- DPP (Cth) v Zarb [2014] VSCA 347
- Heathcote (A Pseudonym) v R [2014] VSCA 37
- Edwards v The Queen [2013] VSCA 188
- Hanania v R [2012] NSWCCA 220
- James v R [2009] NSWCCA 62
- Majid v R [2010] NSWCCA 120