Citation: Newman v R [2018] NSWCCA 208
Court: NSW Court of Criminal Appeal
Date: 28 September 2018
Judges: Payne JA; Johnson J; Campbell J
Background
The appellant pleaded guilty in the Local Court to seven counts of possessing child abuse material under s 91H(2) of the Crimes Act 1900 (NSW), along with two minor drug offences. The material was found across seven devices seized during a police search of his home near Wagga Wagga in November 2015. The devices contained a large volume of images and videos spanning all five categories of the Child Exploitation Tracking System (CETS) Scale, with significant numbers in the most serious categories.
In the District Court, Colefax SC DCJ sentenced the appellant to a total of 3 years and 4 months imprisonment, with a non-parole period of 2 years for the child abuse material counts. The drug offences were found to be trivial and attracted no punishment.
The appellant sought leave to appeal against sentence on four grounds, challenging findings about his remorse and rehabilitation prospects, and contending the sentence was manifestly excessive.
Legal Issues
- Whether the sentencing judge denied procedural fairness by rejecting the appellant's claimed remorse without forewarning him that indirect evidence might not be accepted
- Whether the sentencing judge erred in finding the appellant was not genuinely remorseful
- Whether it was an error to find that the appellant's rehabilitation prospects were hampered by the likelihood he would lose meaningful contact with his children
- Whether the sentence was manifestly excessive
Decision
Grounds 1 and 2: Remorse and procedural fairness. The Court confirmed that the onus of proving mitigating circumstances, including remorse, rests on the offender on the balance of probabilities. Here, the evidence of remorse came through an unsworn, indirect route: the reports of a psychologist, Dr Blake, rather than sworn evidence from the appellant himself. The sentencing judge was entitled to treat that material with considerable caution and to find, on balance, that genuine remorse had not been established.
The Court also rejected the procedural fairness argument. There is no general obligation on a sentencing judge to forewarn an offender that indirect evidence of remorse may not be accepted, unless the judge has positively led the offender to expect a favourable finding. No such representation had been made here. The sentencing judge's conclusions reflected factual reasons for doubting the genuineness of the appellant's contrition, not a refusal to consider remorse at all.
Ground 3: Rehabilitation prospects and contact with children. The sentencing judge had noted that the appellant's depression was connected to his lack of contact with his children, and that contact was unlikely to resume in any meaningful way for some time given the family law principle that children's interests are paramount. The Court held that this reasoning was not speculation, nor a consideration of an irrelevant factor. Because the psychological evidence linked the appellant's offending to his depression, and his depression to the loss of contact with his children, the sentencing judge was entitled to treat likely continued separation as relevant to rehabilitation prospects.
Ground 4: Manifest excess. The Court examined sentencing statistics from the Judicial Information Research System (JIRS), describing them as a useful but blunt yardstick rather than a precise measure. Comparing the sentence against three comparable decisions, the Court found that while some offenders in those cases received lesser sentences, each had particular mitigating factors that distinguished them. The sentence imposed on the appellant sat within the sentencing range identified in Fitzgerald v R [2015] NSWCCA 266 and was not unreasonable or plainly unjust.
Orders Made
- Leave to appeal against sentence granted
- Appeal dismissed
Key Takeaways
- An offender bears the onus of proving remorse on the balance of probabilities as a mitigating circumstance, and a sentencing judge may give little weight to remorse asserted only through indirect, untested channels such as a psychologist's report in the absence of sworn evidence from the offender.
- No procedural fairness obligation requires a sentencing judge to forewarn an offender that indirect evidence of remorse may be rejected, provided the judge has not led the offender to expect a favourable finding.
- Where psychological evidence links an offender's mental health to family circumstances, a sentencing judge may legitimately take into account the likely ongoing effect of those circumstances on rehabilitation prospects.
- JIRS sentencing statistics serve as a useful comparative yardstick in assessing manifest excess, but the Court of Criminal Appeal treated them as a "blunt tool" requiring consideration alongside comparable decided cases.
- In dismissing the appeal, the Court confirmed that a non-parole period of 2 years for multiple counts of possession of child abuse material, including material in the most serious CETS categories, was not manifestly excessive on these facts.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 91H
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 21A
- Criminal Procedure Act 1986 (NSW), s 166
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10, 11
- Family Law Act 1975 (Cth), s 65AA
Cases:
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369
- Chong v R [2017] NSWCCA 185
- R v Johnston [2005] NSWCCA 80
- R v Booth [2009] NSWCCA 89
- Fitzgerald v R [2015] NSWCCA 266
- R v Porte [2015] NSWCCA 174; (2015) 252 A Crim R 294
- R v De Leeuw [2015] NSWCCA 183
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25