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Court of Criminal Appeal 25 June 2018

Peters v R

[2018] NSWCCA 126

Sexual offences
SENTENCING APPEAL AGAINST SENTENCE PLEA OF GUILTY APPLICATION OF XIAO V R [2018] NSWCCA 4 GROUND UPHELD. SENTENCING RELEVANT FACTORS ON SENTENCE

Citation: Peters v R [2018] NSWCCA 126
Court: NSW Court of Criminal Appeal
Date: 25 June 2018
Judges: Beazley P, Price J, R A Hulme J

Background

The appellant pleaded guilty in the Local Court to two offences involving child abuse material: possession of child abuse material under State law (Crimes Act 1900 (NSW) s 91H(2)) and using a carriage service to access child pornography under Commonwealth law (Criminal Code (Cth) s 474.19(1)(a)(i)). Both pleas were entered at the same time in December 2016, following the appellant's arrest in June 2016 after police traced his internet protocol address to a website used for sharing child pornography.

Police seized a laptop, iPhone, and iPad from the appellant's home. Analysis revealed 676 image and video files depicting child abuse material across multiple devices and a cloud storage account. The material ranged across all six categories of the Child Exploitation Tracking Scheme scale, including some of the most serious categories involving very young children.

At sentence in the District Court, the judge imposed 18 months for the State offence (non-parole period of 9 months) and 2 years for the Commonwealth offence, to commence upon expiry of the State non-parole period. The appellant sought leave to appeal on three grounds, challenging the treatment of his guilty plea discount for the Commonwealth offence, the application of the totality principle, and the assessment of objective seriousness.

  • Whether the sentencing judge was required to apply a discount reflecting the utilitarian value of the plea of guilty to the Commonwealth offence, in the same way as for the State offence.
  • Whether the sentencing judge erred by indicating an intention to partially accumulate the two sentences but in practice imposing total accumulation.
  • Whether the sentencing judge correctly assessed the objective seriousness of the offences, given the appellant's claim that he had not viewed all of the material.

Decision

Ground 1: Plea discount for the Commonwealth offence. The sentencing judge applied an express 25% discount for the utilitarian value of the plea to the State offence but declined to quantify any discount for the Commonwealth offence, appearing to treat the strength of the Crown case as a countervailing factor. The Court of Criminal Appeal held this approach was erroneous. Applying Xiao v R [2018] NSWCCA 4, the Court confirmed that the utilitarian value of a guilty plea must be reflected in the sentence for a Commonwealth offence, just as it must for a State offence. The strength of the Crown case is not a legitimate reason to withhold or reduce that discount.

Ground 2: Totality and accumulation. The sentencing judge stated during proceedings that he intended to partially accumulate the two sentences, but the orders as imposed resulted in total accumulation. The Court found this was a clear error: the judge said one thing and did another. This ground was upheld.

Ground 3: Objective seriousness. The appellant argued the sentencing judge overstated objective seriousness because the Crown could not prove he had actually viewed all of the material, including the most serious files. The Court rejected this ground. The sentencing judge had assessed both offences as below the midrange of objective seriousness, and the Court found that assessment was correct. The mere possession of the material, regardless of whether each file had been viewed, was sufficient to inform the objective seriousness finding.

Resentencing. The Court resentenced the appellant, applying a 25% discount to both offences and imposing partial accumulation of 6 months between the two sentences. The revised total effective sentence was 2 years 4 months with a minimum custodial component of 1 year 3 months.

Orders Made

  • Leave to appeal granted.
  • Appeal against sentence allowed.
  • Sentences imposed in the District Court on 31 August 2017 quashed and the offender resentenced as follows:
  • State offence (possession of child abuse material): Non-parole period of 9 months, balance of term of 9 months, dating from 28 August 2017. Non-parole period to expire 27 May 2018, at which point the offender is taken to be subject to a statutory parole order under s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW).
  • Commonwealth offence (using a carriage service to access child pornography): Imprisonment for 1 year 10 months dating from 28 February 2018, with release on recognizance under s 19AC of the Crimes Act 1914 (Cth) after serving 9 months. Conditions include good behaviour for the balance of term and acceptance of Community Corrections NSW supervision. Surety of $3,000 (without security) required.

Key Takeaways

  • The Court of Criminal Appeal confirmed, applying Xiao v R, that the utilitarian value of a guilty plea must be reflected in sentencing for Commonwealth offences. A sentencing court cannot decline to quantify or withhold that discount on the basis that the Crown case was strong.
  • A sentencing judge's stated intention to partially accumulate sentences must be reflected in the orders as actually made. Where there is a discrepancy between the judge's expressed intention and the formal orders, that constitutes an error warranting correction on appeal.
  • Objective seriousness in child abuse material offences is assessed by reference to the nature and extent of the material possessed, not solely by proof that an offender viewed each file. The sentencing judge's below-midrange assessment was confirmed as correct in the circumstances.
  • Under s 19AC of the Crimes Act 1914 (Cth), a Commonwealth offender may be released on recognizance before the full term of imprisonment is served. The Court applied this provision in structuring the resentence for the Commonwealth offence.
  • Positive subjective factors, including low recidivism risk, genuine remorse, and good rehabilitation prospects, were acknowledged but did not displace the requirement for custodial sentences where serious child abuse material offences are involved.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) s 91H(2)
- Criminal Code (Cth) s 474.19(1)(a)(i)
- Crimes Act 1914 (Cth) s 19AC
- Crimes (Administration of Sentences) Act 1999 (NSW) s 158
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 11
- Criminal Appeal Act 1912 (NSW) s 6(3)

Cases
- Xiao v R [2018] NSWCCA 4
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Director of Public Prosecutions (Cth) v Thomas (2016) 347 ALR 275; [2016] VSCA 237
- Jinde Huang aka Wei Liu v R [2018] NSWCCA 70
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Lyons v R [2017] NSWCCA 204
- Minehan v R [2010] NSWCCA 140
- Tyler v The Queen [2007] NSWCCA 247; 173 A Crim R 458
- R v De Leeuw [2015] NSWCCA 183
- R v Porte [2015] NSWCCA 174; 252 A Crim R 294