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17
Court of Criminal Appeal 3 September 2018

Kristensen v R

[2018] NSWCCA 189

Sexual offences
SENTENCING — APPEAL AGAINST SENTENCE 474.27A(1) CRIMINAL CODE ACT 1995 (CTH) XIAO V R [2018] NSWCCA 4 (2018) 329 FLR 1

Citation: Kristensen v R [2018] NSWCCA 189
Court: NSW Court of Criminal Appeal
Date: 3 September 2018
Judge(s): Payne JA; R A Hulme J; Button J

Background

The appellant pleaded guilty in the Campbelltown Local Court to one count of using a carriage service to send indecent material to a person under 16 years of age, contrary to s 474.27A(1) of the Criminal Code Act 1995 (Cth). The charge was a "rolled up" count encompassing sexualised online chats conducted with ten girls aged between 11 and 15, across multiple platforms including Hi5, Tagged, Skype and WhatsApp, between March and October 2016. Australian Federal Police executed search warrants in December 2016, and the appellant made extensive admissions in a recorded interview.

The District Court sentenced the appellant to 1 year and 9 months imprisonment, with release on a recognisance after serving 1 year, 3 months and 23 days. The appellant sought leave to appeal against that sentence on the sole ground that the sentencing judge had erred in her treatment of the guilty plea.

  • Whether the sentencing judge failed to have regard to the utilitarian value of the appellant's early guilty plea when sentencing for a Commonwealth offence, in light of the Court of Criminal Appeal's decision in Xiao v R [2018] NSWCCA 4.
  • Whether, if error was established, resentencing by the Court of Criminal Appeal was required, and what the appropriate sentence was.
  • Whether the prospect of deportation should be treated as a mitigating factor in sentencing.
  • Whether the practice of specifying custodial terms in unusual, unrounded figures is appropriate.

Decision

The Crown conceded, and all three judges agreed, that the sentencing judge had not given weight to the utilitarian value of the guilty plea as required by Xiao. Since the sentencing occurred in October 2017, the judge could not have been expected to anticipate that decision. The error was material, requiring the Court to resentence the appellant afresh.

In resentencing, Payne JA applied the requirements of Part 1B of the Crimes Act 1914 (Cth) and took into account all circumstances under s 16A(2). The offence was characterised as serious. The legislation filling the gap that s 474.27A(1) was enacted to address, treating indecent communications via a carriage service as criminal regardless of any intent to groom, was noted. The maximum penalty of 7 years and the need for general deterrence were treated as important considerations, with the rolled up nature of the charge limiting the available maximum to that for a single offence.

On deportation, Payne JA noted that New South Wales courts have not adopted the Victorian and Queensland approach of treating likely deportation as a mitigating factor making a sentence more burdensome. The Court declined to use this case as a vehicle to revisit that position, largely because the evidence before it went only minimally to the first of the two ways deportation had been considered relevant in those other jurisdictions. The evidence of hardship from separation was found to be speculative and meagre.

R A Hulme J added a comment, agreed with by the other members of the Court, discouraging the practice of specifying non-parole or minimum custodial periods in unusual, unrounded terms. Doing so implies a false mathematical precision in what is in fact a discretionary sentencing exercise.

Orders Made

  • Leave to appeal granted.
  • Sentence imposed by the District Court set aside.
  • Fresh sentence of imprisonment for 1 year and 6 months, commencing 27 October 2017 and expiring 26 April 2019.
  • Pursuant to s 19AC of the Crimes Act 1914 (Cth), the appellant to be released on a recognisance, without sureties, to be of good behaviour for 6 months, after serving 12 months of that sentence.
  • Release date fixed at 26 October 2018.

Key Takeaways

  • Following Xiao v R, sentencing judges dealing with Commonwealth offences must give separate, explicit consideration to the utilitarian value of an early guilty plea; failure to do so constitutes material error requiring resentencing.
  • Where a sentencing error of this kind is established, the Court of Criminal Appeal must resentence the offender rather than simply varying the original sentence, applying the principles in Kentwell v The Queen (2014) 252 CLR 601.
  • In New South Wales, the prospect of deportation is not treated as a mitigating factor rendering a sentence more burdensome, and the Court of Criminal Appeal declined to depart from that position in this decision.
  • A rolled up charge covering multiple incidents restricts the sentencing court to the statutory maximum for a single offence, though all underlying conduct remains relevant to general deterrence and totality.
  • Specifying minimum custodial terms in unusual, unrounded figures is discouraged, as it suggests a false arithmetical precision that does not reflect the inherently discretionary nature of sentencing.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth) s 474.27A
- Crimes Act 1914 (Cth) ss 16A, 17A, 19AC, 19AK, Part 1B
- Child Protection (Offenders Registration) Act 2000 (NSW) ss 3, 3A, 14A, 19
- Migration Act 1958 (Cth) ss 501, 501CA
- Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
- Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010

Cases:
- Xiao v R [2018] NSWCCA 4; (2018) 329 FLR 1
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8
- R v Glynatsis [2013] NSWCCA 131; (2013) 230 A Crim R 99
- Guden v R (2010) 28 VR 288; [2010] VSCA 196
- Ruano v R [2011] NSWCCA 149
- Rios v R [2012] NSWCCA 8
- R v Ellis (1986) 6 NSWLR 603