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Court of Criminal Appeal 13 November 2015

Vincenzo Jon Fedele v R

[2015] NSWCCA 286

Also reported as (2016) 257 A Crim R 78
Sexual offences
CRIMINAL LAW FULL TIME CUSTODIAL SENTENCES

Citation: Vincenzo Jon Fedele v R [2015] NSWCCA 286
Court: Court of Criminal Appeal, New South Wales
Date: 13 November 2015 (final orders made 4 March 2016)
Judge(s): Hidden J, Davies J, Adamson J

Background

The appellant pleaded guilty in the District Court to two child pornography offences: using a carriage service to access child pornography (a Commonwealth offence carrying a maximum of 15 years imprisonment) and possessing child abuse material (a State offence carrying a maximum of 10 years). The offending occurred over several occasions between 2011 and 2014, and involved images and videos including material in the most serious categories of the ANVIL classification scheme. The material was accessed for personal use only, with no redistribution or commercial element.

The sentencing judge imposed a fixed term of 6 months for the State offence and a concurrent 12-month term for the Commonwealth offence, with release after 6 months on a recognizance. The appellant was aged between 19 and 22 at the time of the offending and presented a strong subjective case, including no prior relevant criminal history, psychological evidence, strong community references, genuine remorse, and evidence of a difficult personal period that preceded the offending.

The appellant sought leave to appeal against the sentences on four grounds, contending that the sentencing judge failed to give adequate weight to mitigating factors, failed to give reasons, failed to consider alternatives to full-time imprisonment, and imposed sentences that were manifestly excessive.

  • Whether the sentencing judge gave adequate weight to the appellant's strong subjective case, including his personal circumstances, remorse, and prospects of rehabilitation.
  • Whether the sentencing judge gave sufficient reasons for the sentences imposed.
  • Whether the sentencing judge properly considered alternatives to full-time custodial sentences.
  • Whether the sentences imposed were manifestly excessive.

Decision

The Court of Criminal Appeal (by majority: Hidden J dissenting in part) granted leave to appeal but dismissed the appeal on all four grounds as initially argued. Davies J and Adamson J, forming the majority, were not persuaded that any of the grounds were made out. Hidden J, however, took a different view and would have found error in the sentencing judge's approach.

Hidden J (in dissent on the central question) concluded that while the sentencing judge acknowledged the appellant's strong subjective case, the reasons did not adequately demonstrate that alternatives to full-time custody had been genuinely considered before imposing a custodial sentence. His Honour considered the sentence manifestly excessive having regard to the number and nature of the images and the strength of the appellant's subjective circumstances.

The majority disagreed, finding that the sentencing judge's reasons, read as a whole, sufficiently demonstrated a proper approach to the task. On manifest excess, Davies J noted that the number of images is not determinative in the same way that drug weight is not determinative in drug sentencing, and that it was open to the sentencing judge to structure the sentences so that the appellant served six months in full-time custody.

Following the initial hearing, the Court reconvened on 4 March 2016 after receiving an intensive correction order (ICO) assessment report. The report assessed the appellant as low risk of re-offending, suitable for an ICO, and confirmed he had been engaging in psychological treatment. In light of that assessment, the Court resentenced the appellant on both charges to concurrent 10-month terms of imprisonment to be served by way of an intensive correction order.

Orders Made

  • Leave to appeal granted.
  • The appeal, as originally argued, was dismissed by the majority.
  • On reconvening (4 March 2016), the Court resentenced the appellant on each charge to concurrent terms of imprisonment for 10 months, to be served by way of an intensive correction order commencing that day.
  • The intensive correction order is subject to the mandatory conditions imposed by clause 186 of the Crimes (Administration of Sentences) Regulation 2014.

Key Takeaways

  • In dismissing the substantive grounds of appeal, the majority confirmed that a sentencing judge's reasons need not address every mitigating factor in express terms, provided the reasons, read fairly as a whole, disclose that proper consideration was given to the relevant matters.
  • A strong subjective case, including genuine remorse, absence of prior relevant criminal history, and sound prospects of rehabilitation, does not automatically preclude a full-time custodial sentence for child pornography offences of this nature.
  • Under the approach confirmed in Wong v The Queen, the number of images in a child pornography possession case is a relevant but not determinative factor, analogous to the weight of a prohibited drug in drug offences.
  • Hidden J's dissent illustrates that where a sentencing judge's reasons do not adequately demonstrate consideration of non-custodial alternatives, that may constitute appealable error, even if the majority ultimately found no such failure on the facts here.
  • Following receipt of an ICO suitability assessment, the Court of Criminal Appeal resentenced the appellant to a term to be served by way of an intensive correction order, reflecting the significance of post-sentence assessments of risk and rehabilitative progress in determining the appropriate mode of serving a sentence.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), s 471.19(1)
- Crimes Act 1900 (NSW), s 91H(2)
- Crimes Act 1914 (Cth), s 20(1)(b)
- Crime (Sentencing Procedure) Act 1999 (NSW)
- Crimes (Administration of Sentences) Regulation 2014, cl 186
- Migration Act 1958 (Cth)

Cases:
- Wong v The Queen [2001] HCA 64; 207 CLR 584
- Lowe v The Queen (1984) 154 CLR 606
- Pearce v The Queen (1998) 194 CLR 610
- Hili and Jones v The Queen [2010] HCA 45; 242 CLR 520
- EF v R [2015] NSWCCA 36
- Fitzgerald v R [2015] NSWCCA 266
- R v De Leeuw [2015] NSWCCA 183
- Douar v R [2005] NSWCCA 455; 159 A Crim R 154
- Mouscas v R [2008] NSWCCA 181
- R v Gent [2005] NSWCCA 370; 162 A Crim R 29
- DPP (Cth) v Guest [2014] VSCA 29
- Kanengele-Yondgo v R [2006] NSWCCA 354