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15
Court of Criminal Appeal 9 October 2015

Fitzgerald v R

[2015] NSWCCA 266

Sexual offences
CRIMINAL LAW SENTENCE APPEAL OVER 1,145 ITEMS INCLUDING 390 VIDEOS 700 800 CHILD VICTIMS ANALYSIS OF SIMILAR CASES

Citation: Fitzgerald v R [2015] NSWCCA 266
Court: NSW Court of Criminal Appeal
Date: 9 October 2015
Judge(s): Hoeben CJ at CL (with Price J and Button J agreeing)

Background

The appellant pleaded guilty in the Campbelltown Local Court in November 2013 to six offences: four counts of possessing child abuse material under NSW law and two counts of using a carriage service to access child pornography under Commonwealth law. The offending spanned a period of approximately five to nine years.

AFP investigators identified the appellant's internet protocol address through a peer-to-peer file sharing network investigation. A search of his premises uncovered over 1,145 items of child abuse material stored across multiple hard drives and discs on a password-protected desktop computer to which the appellant admitted being the sole user. The material depicted between 700 and 800 child victims.

In June 2014, a District Court judge sentenced the appellant to a total head sentence of 6 years (structured as concurrent terms), with a non-parole period of 2 years and 3 months. The appellant sought leave to appeal on the basis that the sentence was manifestly excessive.

  • Whether the sentencing judge erred in the assessment of the objective seriousness of the offending
  • Whether the overall sentence was manifestly excessive when considered against comparable cases

Decision

The Court of Criminal Appeal rejected both grounds of appeal. On objective seriousness, the Court found that the sentencing judge's characterisation of the offending as falling at the highest end was well supported by the evidence. The material included 390 videos, a substantial portion of which fell within the most serious categories of the Child Exploitation Tracking System (CETS) scale, involving penetrative sexual activity and sadism or bestiality.

The Court also examined the sentencing discretion exercised below in structuring the non-parole periods as fully concurrent. It noted that some degree of partial accumulation would have been entirely open to the sentencing judge, particularly given that the State and Commonwealth offences are distinct in nature. The entirely concurrent structure therefore represented a benefit to the appellant, making the overall sentence no more severe than it needed to be.

On manifest excess, the Court surveyed comparable decisions including several recent Crown appeals where sentences had been increased. It found that a pattern of head sentences between 18 months and 5 years (after guilty plea discounts) could be identified across those cases. The sentence imposed here fell comfortably within that range, and the Court found nothing unreasonable or plainly unjust in the result.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the quantity and severity of child abuse material, including the proportion falling within the most serious CETS categories and the number of victims depicted, are central considerations in assessing objective seriousness for these offences.
  • Comparable cases cited in the judgment do not establish a fixed sentencing range; each case turns on its own facts, including the balance between videos and still images, the distribution of material across CETS categories, and the offender's subjective circumstances.
  • A sentencing pattern across recent Court of Criminal Appeal decisions (including several Crown appeals) indicated head sentences of between 18 months and 5 years after a guilty plea discount for this category of offending.
  • Where State and Commonwealth child exploitation offences are sentenced together, the Court confirmed that partial accumulation of sentences is a legitimate exercise of sentencing discretion, the two offence types being legally distinct.
  • No error was established in the sentencing judge's approach merely because the judge did not view all of the material personally; viewing a representative sample was sufficient to form a proper assessment of the nature and gravity of the offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 91H(2)
- Crimes Act 1914 (Cth), ss 16A, 28(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Commonwealth Criminal Code, s 474.19(1)(a)(i)

Cases:
- House v The King [1936] HCA 40; 55 CLR 499
- Martin v Regina [2014] NSWCCA 124
- Mulato v Regina [2006] NSWCCA 282
- R v Booth [2009] NSWCCA 89
- R v De Leeuw [2015] NSWCCA 183
- R v Gent [2005] NSWCCA 370; 162 A Crim R 29
- R v Lee [2013] WASCA 216
- R v Linardon [2014] NSWCCA 247
- R v Martin [2014] NSWCCA 283
- R v Minehan [2010] NSWCCA 140; 201 A Crim R 243