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Court of Criminal Appeal 26 August 2020

Wilson v R (Cth)

[2020] NSWCCA 211

Sexual offences
CRIMINAL LAW SENTENCE APPEAL SENTENCE OF 4 YEARS WITH NON PAROLE PERIOD OF 2 YEARS AND 4 MONTHS WHETHER SENTENCE MANIFESTLY EXCESSIVE APPEAL DISMISSED.

Citation: Wilson v R (Cth) [2020] NSWCCA 211
Court: NSW Court of Criminal Appeal
Date: 26 August 2020
Judge(s): Hoeben CJ at CL; Johnson J; Lonergan J

Background

The appellant was sentenced in the District Court in November 2019 for three offences committed over a two-month period in 2018. The offences involved using a carriage service to transmit child pornographic material (sending explicit videos and images via Skype), using a carriage service to procure a person believed to be under 16 years for sexual activity (engaging in detailed sexual conversations with what he believed was a 13-year-old girl and arranging to meet her), and possessing child abuse material. Both of the first two offending sequences were conducted with NSW Police officers operating under assumed online identities.

The sentencing judge, Beckett DCJ, imposed a total head sentence of 4 years, with a non-parole period of 2 years and 4 months. The appellant had been in custody since his arrest on 6 November 2018.

The appellant sought leave to appeal against his sentence on two grounds, arguing that the overall sentence was manifestly excessive and that the sentencing judge had erred in her assessment of the objective seriousness of the procurement offence.

  • Whether the total sentence of 4 years (non-parole period of 2 years and 4 months) was manifestly excessive in light of comparable cases
  • Whether the sentencing judge erred in her assessment of the objective seriousness of the carriage service procurement offence (Sequence 2)
  • The proper role and limitations of comparable cases in establishing manifest excess in Commonwealth sentencing

Decision

On the question of manifest excess, Hoeben CJ at CL confirmed that comparable cases carry limited weight in Commonwealth sentencing. The individualised approach required under s 16A of the Crimes Act 1914 (Cth) means a comparison with other sentences cannot, of itself, establish error. The court examined a range of comparable cases and found that the sentences imposed here were broadly consistent with those cases, identifying no discernible error.

On the objective seriousness ground, the appellant argued the sentencing judge had failed to make a sufficiently explicit assessment of where the Sequence 2 offence fell on the scale of objective seriousness. Hoeben CJ at CL noted that Sequence 2 was a Commonwealth offence, meaning the standard non-parole period regime (which gave rise to the "more than mid-range" language in cases such as Muldrock) did not apply. An explicit placement on a sliding scale was therefore not required.

The court found that the sentencing judge's remarks, read in context, sufficiently conveyed her assessment of Sequence 2 as the most serious of the three offences. Critically, defence counsel at the sentencing hearing had expressly conceded that Sequence 2 was the most serious offence "by far." Given that concession, it was implicit in the sentencing judge's reasons that she regarded the offence as approximately mid-range in seriousness, and requiring more explicit language would have elevated form over substance on a matter not genuinely in dispute.

Both grounds failed. The Court of Criminal Appeal unanimously dismissed the appeal, though leave to appeal was granted.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that comparable cases have a limited function in Commonwealth sentencing appeals: consistency with comparable cases does not establish error, and divergence from them does not automatically demonstrate manifest excess.
  • A sentencing judge dealing with Commonwealth offences is not required to place an offence at a specific point on a scale of objective seriousness in the same way required for State offences attracting standard non-parole periods under the Muldrock framework.
  • Where defence counsel at first instance conceded the key factual characterisation of an offence's seriousness, the Court held that the sentencing judge's reasons should be read against that background, and an absence of explicit language repeating the concession does not constitute appellable error.
  • No error was established in the sentencing judge's assessment of objective seriousness where her Honour's reasons, taken as a whole and in context, reflected an appropriate understanding of the relative gravity of the offences.
  • Upholding the sentence reinforces the significant weight given to the planning and persistence evident in carriage service child exploitation offences, particularly where an offender took active steps to arrange in-person meetings.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), Part 1B, s 16A
- Criminal Code Act 1995 (Cth), ss 474.19(1), 474.26(1)
- Crimes Act 1900 (NSW), s 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 3

Cases
- Barbaro v The Queen (2014) 253 CLR 58
- Clarke-Jeffries v R [2019] NSWCCA 56
- Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 262 CLR 428
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
- Director of Public Prosecutions (Cth) v Zarb (2014) 46 VR 832
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- Muldrock v The Queen (2011) 244 CLR 120
- Nguyen v The Queen (2016) 256 CLR 656
- R v Pham (2015) 256 CLR 550
- Obeid v R (2017) 96 NSWLR 155
- Putland v The Queen (2004) 218 CLR 174
- Lyons v R [2017] NSWCCA 204
- Moore v R [2018] NSWCCA 26
- Ngati v R [2018] NSWCCA 32
- R (Cth) v Poynder (2007) 171 A Crim R 544