Citation: R v Hutchinson [2018] NSWCCA 152
Court: NSW Court of Criminal Appeal
Date: 15 August 2018
Judge(s): Meagher JA; R A Hulme J; Button J
Background
The respondent, a man aged 29 at the time of the offences, posed online as an 18-year-old female to solicit explicit images from teenage boys. Using instant messaging platforms, he communicated with multiple young male victims aged 13 to 15, deceiving them into sending sexually explicit images of themselves. A forensic examination of his devices also revealed a collection of 509 still images and videos of child abuse material, depicting children ranging from approximately 10 to 15 years of age, including some depicting sadistic conduct.
The respondent was convicted of three offences: one count of possessing child abuse material under the Crimes Act 1900 (NSW) (maximum penalty 10 years), and two counts of using a carriage service to transmit child pornography under the Criminal Code (Cth) (maximum penalty 15 years each). In April 2018, Judge Scotting in the District Court sentenced him to a total of 17 months' imprisonment with a minimum period of 8 months to be served.
Both the Commonwealth Director of Public Prosecutions and a State Deputy Director of Public Prosecutions appealed the sentences as manifestly inadequate. They also raised grounds relating to the sentencing judge's assessment of objective seriousness and a failure to comply with procedural requirements under the Crimes Act 1914 (Cth).
Legal Issues
- Whether the sentencing judge erred in assessing the objective seriousness of the offences
- Whether the sentencing judge failed to comply with s 19AC(1) of the Crimes Act 1914 (Cth), which governs the making of recognizance release orders for Commonwealth offences
- Whether the individual sentences for the two Commonwealth offences were manifestly inadequate
- Whether the total effective sentence and the period of full-time custody were manifestly inadequate
Decision
On the objective seriousness ground, the Court of Criminal Appeal found that the sentencing judge's description of the offences' seriousness was not expressed with ideal precision, but the language used did not necessarily indicate legal error. The Crown's contention that the offences were "around about the middle of the range" was a formulation raised for the first time on appeal and had not been put to the sentencing judge below.
On the s 19AC(1) ground, the Court found the sentencing judge had erred. The provision required only one recognizance release order to be made across both Commonwealth sentences, but two orders were made. Although this technical error was upheld as a ground of appeal, it was not apparent that the failure had materially affected the sentences imposed.
On manifest inadequacy, the Court described the sentences as "very lenient" and noted that more weight should have been given to general and personal deterrence and denunciation. However, the majority could not characterise the sentences as unreasonable or plainly unjust, which is the threshold required to establish manifest inadequacy. The Court was therefore unable to intervene on this basis.
The Court also exercised its residual discretion under s 5D(1) of the Criminal Appeal Act 1912 (NSW) to dismiss the appeal. The Crown's case in the District Court had been focused on securing a full-time custodial sentence, in opposition to the respondent's submission that a non-custodial alternative remained available. Having succeeded on that issue below, the Crown then sought to argue on appeal that the full-time custodial sentence it had successfully urged was insufficiently long. The Court declined to entertain a case materially expanded beyond what had been put at first instance.
Orders Made
- Crown appeal dismissed.
Key Takeaways
- A sentence may be described by the Court of Criminal Appeal as "very lenient" while still falling short of the threshold for manifest inadequacy. The test requires the sentence to be unreasonable or plainly unjust, not merely lower than the appellate court might have imposed.
- Under s 19AC(1) of the Crimes Act 1914 (Cth), where multiple Commonwealth sentences are imposed, only one recognizance release order should be made. A failure to comply with this requirement constitutes an error, even if it does not automatically warrant resentencing.
- In dismissing the appeal, the Court invoked the residual discretion in s 5D(1) of the Criminal Appeal Act 1912 (NSW), confirming that a Crown appeal may be dismissed where the prosecution seeks to run a materially different case on appeal from the one advanced at first instance.
- The Court expressly stated that the sentences in this case should not be treated as a benchmark for future sentencing in child abuse material matters.
- Where a sentencing judge's articulation of objective seriousness is imprecise but does not demonstrate a misapplication of principle, that imprecision alone is insufficient to establish error warranting intervention.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 91H(2), 16A(2)(ea)
- Crimes Act 1914 (Cth), ss 16A, 17A, 19AC(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A
- Criminal Appeal Act 1912 (NSW), s 5D(1)
- Criminal Code (Cth), s 474.19(1)
Cases:
- Burbridge v R [2016] NSWCCA 128
- Director of Public Prosecutions (Cth) v Guest [2014] VSCA 29
- DPP (Cth) v Walls [2014] VSCA 323
- Fedele v R [2015] NSWCCA 286; (2016) 257 A Crim R 78
- Fitzgerald v R [2015] NSWCCA 266
- Hong v R [2017] NSWCCA 238
- James v R [2009] NSWCCA 62
- Lyons v R [2017] NSWCCA 204
- Minehan v R [2010] NSWCCA 140; 201 A Crim R 243
- Mouscas v R [2008] NSWCCA 181
- Peters v R [2018] NSWCCA 126
- R v De Leeuw [2015] NSWCCA 183
- R v Hampton (1998) 44 NSWLR 729; 101 A Crim R 399
- R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242