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Court of Criminal Appeal 23 November 2020

CR v R

[2020] NSWCCA 289

Sexual offences
CRIMINAL LAW SENTENCE APPEAL EXISTENT STANDARD NON PAROLE PERIOD TO TWO OF THE OFFENCES ERROR ESTABLISHED

Citation: CR v R [2020] NSWCCA 289
Court: NSW Court of Criminal Appeal
Date: 23 November 2020
Judges: Hoeben CJ at CL, Harrison J, Bellew J

Background

The applicant pleaded guilty in the Local Court to four offences under the Crimes Act 1900 (NSW): producing child abuse material, two counts of using a child under 14 years of age to produce child abuse material, and possessing child abuse material. He had a prior conviction for possessing child pornography, and at the time of the offending he was a registered person under the Child Protection (Offenders Registration) Act 2000 (NSW).

The offending was discovered in May 2016 when police attended the applicant's premises for a routine annual inspection. On a digital external hard drive, police found a large volume of child abuse material. This included images and videos involving a sex doll onto which faces of children had been digitally superimposed, and a folder containing material in which the faces of the applicant's two nieces (aged between 4 and 13 at relevant times) had been superimposed onto pornographic images and videos. The children were not directly involved in producing the material; rather, their photographs were used without their knowledge.

The District Court sentenced the applicant to an aggregate term of 8 years' imprisonment with a non-parole period of 5 years. The applicant sought leave to appeal against that aggregate sentence.

  • Whether the sentencing judge erred by applying a standard non-parole period to the two offences under s 91G(1)(a) of the Crimes Act 1900 (NSW), when no such standard non-parole period existed for those offences at the time they were committed
  • Whether, error having been established, the applicant should be re-sentenced by the Court of Criminal Appeal in the fresh exercise of sentencing discretion
  • What sentence was appropriate having regard to the objective and subjective circumstances of the offending

Decision

The Crown conceded, and the Court of Criminal Appeal accepted, that the sentencing judge had applied a standard non-parole period to the two counts under s 91G(1)(a) that simply did not exist for those offences at the time they were committed. Although the Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW) introduced a standard non-parole period for s 91G(1)(a) offences from 29 June 2015, those amendments did not apply retrospectively to offences committed before that date. The offending in counts 2 and 3 occurred between 2010 and 2016, and the portion predating the amendment was not covered by the new provision. This constituted a clear sentencing error.

The error required the Court to re-sentence the applicant in a fresh exercise of discretion. In doing so, the Court identified general deterrence and denunciation as factors of paramount importance in child abuse material offending. The Court drew on established authority to the effect that such offending causes harm not only to the children directly depicted, but also contributes to a broader market that perpetuates child exploitation.

In assessing the objective seriousness of the offending, the Court noted a number of features: the material was produced and possessed for the applicant's own use; he was not part of a collaborative network; the offending was unsophisticated; and the children's involvement was limited to the digital superimposition of their faces. However, the Court treated the involvement of the applicant's own nieces as a serious breach of trust, and the sheer volume of material in respect of count 4 as a significant aggravating factor. The prior conviction for a similar offence also weighed against the applicant.

On the subjective side, the Court took into account the applicant's guilty plea at the first available opportunity, his cooperation with police, evidence of remorse, and some capacity for rehabilitation, although prospects were described as guarded. The Court found special circumstances justifying an adjustment of the statutory ratio between the non-parole period and the balance of the sentence. The applicant was ultimately re-sentenced to a revised aggregate term.

Orders Made

• Grant leave to appeal
• Allow the appeal
• Quash the sentence imposed in the District Court of NSW
• Sentence the applicant to imprisonment for 6 years and 3 months commencing on 9 March 2017 and expiring on 8 June 2023
• Specify a non-parole period of 4 years and 1 month imprisonment commencing on 9 March 2017 and expiring on 8 April 2021

Key Takeaways

  • The Court of Criminal Appeal confirmed that standard non-parole periods introduced by the Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW) do not apply to offences under s 91G(1)(a) of the Crimes Act 1900 (NSW) committed before 29 June 2015; applying such a period to pre-amendment offending constitutes a sentencing error.
  • Where a sentencing judge has applied a non-existent standard non-parole period, that error requires the appellate court to re-sentence the offender in a fresh exercise of the sentencing discretion rather than merely adjust the original sentence.
  • General deterrence and denunciation were identified as factors of paramount importance in sentencing for child abuse material offences, consistent with the line of authority including R v De Leeuw and R v Porte.
  • A serious breach of trust arises where the children whose images are used are known to and related to the offender, even where those children were not directly involved in producing the material.
  • Special circumstances justifying an adjustment of the statutory non-parole period ratio may be found where an offender faces particular challenges in transitioning from custody and requires a longer period of supervision on release.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 91G(1)(a), 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW)
- Child Protection (Offenders Registration) Act 2000 (NSW)

Cases
- Maxwell v R [2020] NSWCCA 94
- Weber v R [2020] NSWCCA 103
- Yeung v R [2018] NSWCCA 52
- R v Hutchinson [2018] NSWCCA 152
- Carter v R [2018] NSWCCA 138
- R v De Leeuw [2015] NSWCCA 183
- R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174
- Butters v R [2010] NSWCCA 1
- Pfitzner v R [2010] NSWCCA 314
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- DPP (Cth) v D'Alessandro (2010) 26 VR 477; [2010] VSCA 60
- DPP (Cth) v Guest [2014] VSCA 29
- R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370
- R v Booth [2009] NSWCCA 89
- R v Jongsma (2004) 150 A Crim R 386; [2004] VSCA 218
- R v Elfar [2003] NSWCCA 358
- R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353
- R v CR [2019] NSWDC 884 (decision below)