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Court of Criminal Appeal 10 May 2017

Miao v R

[2017] NSWCCA 89

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE LEAVE TO APPEAL GRANTED APPEAL DISMISSED

Citation: Miao v R [2017] NSWCCA 89
Court: NSW Court of Criminal Appeal
Date: 10 May 2017
Judges: Leeming JA at [1]; Latham J at [2]; Campbell J at [56]

Background

The appellant was sentenced in the District Court in August 2016 for two offences: using a carriage service to access child pornography under the Commonwealth Criminal Code, and possessing child abuse material under the NSW Crimes Act. A further possession offence was taken into account on a Form 1 (a document that allows additional offences to be considered at sentencing without a separate conviction being recorded).

Police intercepted a package in mid-2013 containing parts of a child sex doll the appellant had ordered online. When officers executed a search warrant at his premises, they found the doll and seized storage devices containing 361 images and 56 videos of child pornography depicting approximately 123 children, the majority under ten years of age. Some were infants. A significant number of items depicted penetrative sexual activity or sadism.

The sentencing judge imposed a fixed term of 15 months on the Commonwealth offence and a two-year sentence with a 12-month non-parole period on the State offence, partially accumulated, producing a total sentence of two years and three months with a non-parole period of 15 months. The appellant sought leave to appeal on the grounds that the sentence was excessive and that alternatives to full-time custody had not been properly considered.

  • Whether the sentencing judge applied an inadequate discount for the appellant's guilty plea
  • Whether the objective criminality of the offences was correctly assessed
  • Whether the appellant's prospects of rehabilitation were properly evaluated
  • Whether the judge erred by failing to consider an Intensive Corrections Order or suspended sentence as alternatives to full-time custody
  • Whether the sentences, individually or in combination, were manifestly excessive

Decision

The Court of Criminal Appeal (Latham J, with Leeming JA and Campbell J agreeing) granted leave to appeal but dismissed all five grounds.

On the first three grounds, the Court found no error in the sentencing judge's evaluative assessments. The judge had not failed to consider the guilty plea discount, the objective gravity of the offending, or the rehabilitation prospects; the complaint was only that those assessments were inadequate. The Court found they were not. The judge's reservations about the psychologist's evidence were reasonably based: the psychologist had no prior experience in paraphilia, the appellant had not been candid about his motivations, and the character references were inconsistent with the psychologist's assessment of social isolation.

On the fourth ground, the Court confirmed that the three-stage sentencing process required the judge first to decide whether imprisonment was warranted, then to fix the term without reference to how it might be served, and only then to consider alternatives. Because the accumulated sentence exceeded two years, the statutory eligibility thresholds for both an Intensive Corrections Order and a suspended sentence were not met. No error arose from the failure to consider those alternatives.

The fifth ground of manifest excess was contingent on establishing error in the earlier grounds. Having found no such error, the Court dismissed this ground as well.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The Court of Criminal Appeal confirmed the three-stage sentencing framework: first determine whether imprisonment is appropriate, then fix the term independently of how it will be served, and only then assess alternatives to full-time custody.
  • Under the Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7 and 12, the availability of an Intensive Corrections Order or suspended sentence is governed by the length of the sentence already determined; a court is not required to keep the term below a threshold in order to make those alternatives available.
  • Where a sentencing judge's partial accumulation of sentences for overlapping Commonwealth and State child pornography offences pushes the total term beyond the two-year threshold, no error arises simply because alternatives to full-time custody are thereby foreclosed.
  • Reservations about expert psychological evidence were upheld where the psychologist lacked relevant specialist experience, the offender had not been frank with the psychologist, and the evidence was internally inconsistent with other material before the court.
  • In dismissing the appeal, the Court reinforced that a single CCA decision does little to establish an appropriate sentencing range; judges must assess each case individually against maximum penalties, objective gravity, subjective features, and established sentencing principles.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth), s 474.19 (use carriage service to access child pornography; maximum 15 years)
- Crimes Act 1900 (NSW), s 91H(2) (possess child abuse material; maximum 10 years)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 7, 12 (thresholds for Intensive Corrections Orders and suspended sentences)

Cases
- Fedele v R [2015] NSWCCA 286
- R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
- Atkinson v R [2014] NSWCCA 262
- Villalon v R [2015] NSWCCA 229
- R v Oinonen [1999] NSWCCA 310
- R v Cardoso [2003] NSWCCA 15; 137 A Crim R 535
- Burbridge v R [2016] NSWCCA 128
- R v Porte [2015] NSWCCA 174
- Douar v R [2005] NSWCCA 455; 159 A Crim R 154
- R v Zamagias [2002] NSWCCA 17
- R v Wegener [1999] NSWCCA 405