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10
Court of Criminal Appeal 28 August 2017

Lyons v R

[2017] NSWCCA 204

Sexual offences
CRIMINAL LAW APPEALS APPEAL AGAINST SENTENCE WHETHER SENTENCES MANIFESTLY EXCESSIVE APPEAL ALLOWED APPELLANT RE

Citation: Lyons v R [2017] NSWCCA 204
Court: NSW Court of Criminal Appeal
Date: 28 August 2017
Judges: Simpson JA, Harrison J, Davies J (Davies J delivering the principal judgment; Simpson JA and Harrison J agreeing)

Background

The appellant pleaded guilty in the Local Court at Griffith to six offences involving child pornography: one offence of possessing child abuse material under the Crimes Act 1900 (NSW), four offences of using a carriage service to transmit or make available child pornography material under the Criminal Code Act 1995 (Cth), and one aggravated offence of making child pornography available on three or more occasions involving two or more people under the same Act.

The offending came to light after Australian Federal Police received a tip from United States authorities. A search of the appellant's home uncovered an iPhone and iMac computer linked to accounts that had been used to distribute child exploitation material by email and through cloud storage services. The appellant made partial admissions during the search but denied knowledge of several accounts despite evidence to the contrary.

In the District Court, Judge McLennan SC sentenced the appellant to a total of nine years' imprisonment with a non-parole period of six years. The appellant sought leave to appeal, contending the sentencing judge had made several errors.

  • Whether the sentencing judge failed to assess the objective seriousness of each individual offence before applying the totality principle
  • Whether the sentencing judge erred in applying the totality principle to the Commonwealth offences
  • Whether the resulting sentences were manifestly excessive

Decision

The Court of Criminal Appeal found that the sentencing judge had treated the Commonwealth offences collectively rather than assessing the objective seriousness of each offence individually before arriving at an aggregate structure. This approach was inconsistent with the required sentencing methodology. The proper approach requires each offence to be assessed on its own terms, with the totality principle then applied to ensure the overall sentence is not disproportionate to the totality of the offending.

The Court also identified error in the application of the totality principle itself. The sentences imposed by the District Court, when viewed as a whole, produced a total term that was not adequately calibrated to reflect the individual gravity of each offence and the overall criminality involved. The Court treated these errors as sufficient to warrant intervention.

Having identified error, the Court proceeded to resentence the appellant. Davies J conducted a fresh assessment of each offence individually, taking into account the objective seriousness of each, the maximum penalties applicable, the appellant's early guilty pleas, and all relevant subjective factors. The resentencing produced a reduced total term.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences imposed in the District Court on 16 December 2016 quashed
  • Appellant resentenced as follows:
  • Sequence 1 (possess child abuse material, NSW offence): fixed term of 18 months commencing 19 December 2015, expiring 18 June 2017
  • Sequence 2 (transmit child pornography, Cth): 18 months commencing 19 December 2016, expiring 18 June 2018
  • Sequence 9 (transmit child pornography, Cth): 18 months commencing 19 March 2017, expiring 18 September 2018
  • Sequence 15 (make available child pornography, Cth): 18 months commencing 19 June 2017, expiring 18 December 2018
  • Sequence 13 (make available child pornography, Cth): 12 months commencing 19 September 2017, expiring 18 September 2018
  • Sequence 10 (aggravated transmission offence, Cth): 4 years 6 months commencing 19 September 2017, expiring 18 March 2022
  • Single non-parole period for Commonwealth offences: 3 years 6 months commencing 19 December 2016, expiring 18 June 2020
  • Total sentence: 6 years and 3 months with a non-parole period of 4 years and 6 months

Key Takeaways

  • A sentencing court must assess the objective seriousness of each individual offence separately before applying the totality principle; treating multiple offences collectively at the outset constitutes error.
  • The totality principle operates as a check applied after individual sentences are determined, not as a substitute for individual offence assessment.
  • The Court of Criminal Appeal confirmed that identified methodological error in sentencing, even where it does not necessarily produce an obviously excessive result on its face, can warrant intervention and resentencing.
  • In resentencing, the Court reduced the total term from nine years (non-parole period six years) to six years and three months (non-parole period four years and six months), reflecting a corrected application of both individual offence assessment and the totality principle.
  • The aggravated Commonwealth offence under s 474.24A, which carried a maximum of 25 years' imprisonment, attracted the longest individual sentence (four years and six months), consistent with its greater statutory gravity compared to the base transmission offences.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 91H(2)
- Criminal Code Act 1995 (Cth), ss 474.19(1), 474.24A, 473.1
- Crimes Act 1914 (Cth), ss 3E, 3LA

Cases
- Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Cahyadi v Regina [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Delaney v R; R v Delaney [2013] NSWCCA 150
- DPP (Cth) v Guest [2014] VSCA 29
- James v R [2009] NSWCCA 62
- Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243
- Mouscas v R [2008] NSWCCA 181
- R v Booth [2009] NSWCCA 89
- R v De Leeuw [2015] NSWCCA 183
- R v Kilic [2016] HCA 48; (2016) 91 ALJR 131
- R v Linardon [2014] NSWCCA 247
- R v Martin [2014] NSWCCA 283
- R v Porte [2015] NSWCCA 174
- Saddler v R [2009] NSWCCA 83
- Sponberg v R [2017] NSWCCA 120