Citation: Hong v R [2017] NSWCCA 238
Court: Court of Criminal Appeal, NSW
Date: 9 October 2017
Judge(s): Basten JA; Beech-Jones J (principal judgment); Fagan J
Background
The applicant was sentenced in the District Court in August 2016 on three offences relating to child abuse material. The first offence involved using a carriage service (internet access) to access child pornography, contrary to the Criminal Code (Cth), carrying a maximum penalty of 15 years imprisonment. The second and third offences involved possessing child abuse material under the Crimes Act 1900 (NSW), each carrying a maximum of 10 years imprisonment.
The material seized from the applicant's North Rocks premises included thousands of image and video files stored across multiple hard drives and DVDs. The files depicted victims as young as five years of age, with the majority featuring penetrative sexual activity. The applicant had used both a peer-to-peer file sharing program and an encryption program to download and store the material over approximately three years.
The combined sentence imposed by Judge Culver in the District Court resulted in an effective non-parole period of 28 months, with an additional term of 15 months. The applicant sought leave to appeal on the single ground that the sentence was unreasonable or plainly unjust.
Legal Issues
- Whether the overall sentence was unreasonable or plainly unjust, having regard to the nature and gravity of the offending
- Whether the sentencing judge appropriately assessed the mid-range seriousness of the offences
- Whether the applicant's subjective circumstances, including early plea, family hardship, and lack of prior criminal history, were adequately reflected in the sentence
- Whether findings about the risk of reoffending were open on the evidence
- Whether comparable cases or sentencing statistics supported a conclusion of manifest excess
- Whether a clerical slip in the commencement date of one sentence required the Court to re-exercise its sentencing discretion
Decision
Beech-Jones J (with whom Basten JA and Fagan J agreed) accepted that leave to appeal should be granted but concluded the appeal should be substantially dismissed. The Court confirmed that the sentencing judge had properly assessed the offending as falling around the mid-range level of seriousness, noting that while the offences were not the worst of their kind, they remained serious examples. The material included children as young as five years old, CETS Category 5 content (sadism, humiliation or bestiality), and an estimated 300 or more individual child victims depicted across the seized items.
The Court rejected the applicant's submission that his prospects of rehabilitation were good. No challenge had been made at the appeal to the sentencing judge's express finding that the Court could not confidently conclude there was a low risk of reoffending. Family hardship and the immigration consequences the applicant faced had been taken into account by the sentencing judge, and the Court found no error in that treatment.
The applicant's reliance on his early plea, absence of prior criminal history, and standing in the community did not carry the weight he attributed to them. The Court observed that the absence of prior criminal history and community standing are common features of offenders in this category of case. Comparisons with other reported decisions and sentencing statistics did not support a conclusion of manifest excess.
On the clerical slip: the parties agreed that the commencement date for the second offence had been incorrectly recorded as 2 July 2017 rather than 2 June 2017, which did not accord with the sentencing judge's stated intention. The Court corrected that error but found it would not have independently warranted a full re-exercise of the sentencing discretion under the principles in Kentwell v The Queen (2014) 252 CLR 601.
Orders Made
- Leave to appeal granted
- Appeal allowed in part
- The sentence for the second offence varied to commence 2 June 2017 and expire 1 March 2020, with the non-parole period expiring 1 December 2018
- Appeal otherwise dismissed
Key Takeaways
- The Court of Criminal Appeal confirmed that the absence of prior criminal history and good community standing carry limited weight in child abuse material sentencing, as these are common characteristics of offenders in this category.
- A sentencing judge's finding that a low risk of reoffending could not be established with confidence was left undisturbed where no challenge to that finding was advanced on appeal.
- In dismissing the bulk of the appeal, the Court affirmed that a sentence can be characterised as "stern" without crossing the threshold of being unreasonable or plainly unjust.
- Under the principles in Kentwell v The Queen, a clerical error in a sentence commencement date that does not reflect the sentencing judge's intention will be corrected without automatically requiring a full re-exercise of the sentencing discretion, provided no other appealable error is established.
- When assessing the gravity of child abuse material, the Court noted that even Category 1 material on the CETS scale is not to be assumed mild in content and may possess significant gravity, following Johnson J's observations in R v Porte.
Legislation and Cases Referenced
Legislation:
- Criminal Code (Cth), s 474.19 (using a carriage service to access child pornography)
- Crimes Act 1900 (NSW), s 91H (possession of child abuse material)
- Migration Act 1958 (Cth), ss 500, 501
- Crimes Act 1958 (Vic), s 70
- Sex Offender Registration Act 2004 (Vic)
Cases:
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174
- Dennis v The Queen [2017] VSCA 251
- Director of Public Prosecutions (Cth) v Pratten (No 2) [2017] NSWCCA 42
- Fitzgerald v R [2015] NSWCCA 266
- Miao v R [2017] NSWCCA 89
- Obeid v R [2017] NSWCCA 221
- R v Martin (2014) 246 A Crim R 477; [2014] NSWCCA 283
- R v Zerafa (2013) 235 A Crim R 265; [2013] NSWCCA 222
- James v R [2009] NSWCCA 62