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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: 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 August 2016 following guilty pleas to two offences: using a carriage service to access child pornography (a Commonwealth offence carrying a maximum of 15 years) and possessing child abuse material (a State offence carrying a maximum of 10 years). A further possession offence was taken into account on a Form 1.

The offending involved a child sex doll ordered online and a substantial collection of child pornography stored on seized devices, comprising approximately 361 images and 56 videos depicting around 123 different children, the majority under 10 years of age, including infants. Some material depicted penetrative sexual activity and some depicted sadism, humiliation or bestiality.

The sentencing judge imposed a fixed term of one year and three months on the Commonwealth offence and two years imprisonment with a 12-month non-parole period on the State offence, with three months accumulation, producing a total sentence of two years and three months. The appellant sought leave to appeal on five grounds.

Legal Issues

  • Whether the sentencing judge applied an inadequate discount for the guilty plea (Ground 1)
  • Whether the judge failed to properly assess the objective gravity of the offences (Ground 2)
  • Whether the judge failed to properly assess the appellant's prospects of rehabilitation (Ground 3)
  • Whether the judge erred in failing to consider an Intensive Corrections Order or suspended sentence as alternatives to full-time custody (Ground 4)
  • Whether the sentences were, alone or in combination, manifestly excessive (Ground 5)

Decision

Ground 1: Discount for guilty plea

The judge applied a 20 percent discount rather than the full 25 percent, noting the delay in entering pleas was caused by a dispute about whether the child sex doll constituted child abuse material. The Court of Criminal Appeal found no error in that approach. The Court distinguished the cases of Atkinson and Villalon, where full discounts were restored because offenders had sought to plead guilty at the earliest opportunity but had been prevented from doing so. No comparable exceptional or peculiar circumstances applied here, and the extent of the discount was a discretionary exercise that did not miscarry (at [28]-[29]).

Ground 2: Objective gravity

The appellant argued the judge had not properly accounted for comparative case law examined in Fedele and that the child pornography represented less than 5 percent of his total collection. The Court found that assessment of objective gravity correctly focuses on the material the subject of the charges, not on its proportion relative to other lawfully or unlawfully held material. The relevant factors are the category of seriousness, the number of children depicted, and the ages of those children, all of which the judge addressed (at [37]). The Court also cautioned that Crown appeal decisions are not reliable indicators of appropriate first-instance sentences (at [34]).

Ground 3: Rehabilitation prospects

The appellant contended the judge wrongly rejected the treating psychologist's opinion that the risk of reoffending was low. The Court found the judge did not outright reject that opinion but identified cogent reasons for not accepting it unreservedly, including the psychologist's limited experience with paraphilia and the appellant's lack of frankness about his motivations (at [14]-[15], [41]). Treatment for depression and obsessive compulsive disorder would not necessarily address the appellant's tendency to sexual perversion, making the guarded view of rehabilitation entirely warranted (at [42]).

Ground 4: Failure to consider alternatives to full-time custody

The judge was aware of and rejected submissions in favour of an Intensive Corrections Order, having determined that full-time custody was necessary to reflect the objective gravity and applicable sentencing principles (at [50]). The Court confirmed that under the two-stage approach discussed in Douar, objective gravity principally determines which sentencing alternative is appropriate. Once the total sentence necessarily exceeded the two-year threshold for alternatives under the relevant legislation, no occasion arose to consider those alternatives (at [20], [52]-[53]).

Ground 5: Manifest excess

Having rejected Grounds 1 through 3 and found the three-month accumulation technically consistent with authority, the Court found the individual and total sentences fell within the range for offences of this nature, having regard to the range identified in Fedele and the caution about Crown appeal decisions noted in Burbridge (at [46]).

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A reduced guilty plea discount is not necessarily erroneous where the delay in entering pleas is not attributable to an instruction to plead guilty going unacted upon or an early offer to plead that was refused. The exceptional circumstances warranting the maximum discount remain a high bar (at [26]-[29]).

  • In sentencing for child pornography offences, objective gravity is assessed by reference to the material the subject of the charges, including its category of seriousness, the number of children depicted, and their ages. Proportionality of that material to other content found on the same devices is not a relevant consideration (at [37]).

  • Where a treating psychologist has limited experience with paraphilia and the offender has been less than frank about motivations, a sentencing court is entitled to take a guarded view of rehabilitation prospects even without outright rejecting the psychological opinion (at [41]-[42]).

  • The two-stage sentencing approach confirmed in Douar requires that objective gravity principally determines the appropriate sentencing alternative. Once full-time custody is required and the resulting sentence exceeds the statutory threshold, alternatives such as an Intensive Corrections Order are not available (at [52]-[53]).

  • Crown appeal decisions affirming or substituting sentences are not reliable guides to the appropriate range at first instance, given the inherent restraint in the disposition of Crown appeals (at [34]).

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth); s 474.19; 17A
- Crimes Act 1900 (NSW): s 91H
- Crimes (Sentencing Procedures) Act 1999 (NSW); ss 7, 12

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