AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 5 September 2022

Glasheen v R

[2022] NSWCCA 191

Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE FEDERAL CHILD ABUSE OFFENCE SENTENCE CONSIDERATION OF NON

Citation: Glasheen v R [2022] NSWCCA 191
Court: Court of Criminal Appeal, NSW
Date: 5 September 2022
Judges: Beech-Jones CJ at CL, Price J, Garling J

Background

The appellant pleaded guilty to one count of using a carriage service to access child abuse material, contrary to s 474.22(1) of the Criminal Code Act 1995 (Cth). Because he had five prior convictions for child sexual abuse offences arising from 2014 proceedings, a statutory mandatory minimum head sentence of four years' imprisonment applied under s 16AAB of the Crimes Act 1914 (Cth).

At the sentencing hearing in the District Court on 10 August 2021, the sentencing judge assessed the offending as below mid-range in objective seriousness, but not within the least serious category. Her Honour identified an undiscounted starting point of four years and six months, and determined the appellant was entitled to a combined 30% discount for his early guilty plea and cooperation with police. Applying that discount would have produced a sentence below the four-year mandatory minimum.

The sentencing judge concluded she could not give full effect to the 30% discount because doing so would breach the mandatory minimum. She imposed a sentence of exactly four years, with a non-parole period of two years and eight months. The appellant appealed on the ground that the judge erred by failing to apply the available discounts in full.

  • Whether a sentencing court may reduce a federal child sex offence sentence below the statutory mandatory minimum under ss 16AAC(2)-(3) of the Crimes Act 1914 (Cth) on account of a guilty plea and cooperation with law enforcement, even where the offending does not fall in the "lowest category" of objective seriousness.
  • Whether the sentencing judge erred by declining to give full effect to the combined 30% discount for plea and cooperation.
  • What non-parole period was appropriate on re-sentence once the correct head sentence was calculated.

Decision

The Crown conceded error in this Court. The sentencing judge had proceeded on the mistaken basis that the reductions available under s 16AAC could only be used where the mandatory minimum sentence was already the appropriate penalty, which in turn required the offending to sit at the lowest end of seriousness. That approach was inconsistent with the Court of Criminal Appeal's subsequent reasoning in R v Delzotto [2022] NSWCCA 117, delivered after the original sentencing.

Price J, with whom Beech-Jones CJ at CL and Garling J agreed, confirmed that s 16AAC(2)-(3) permits a reduction below the mandatory minimum wherever a court is taking into account a guilty plea and/or cooperation with law enforcement. There is no threshold requirement that the offending must be of the lowest objective seriousness before the power can be exercised. The Court adopted the reasoning from Delzotto that any contrary construction would conflict with the High Court's approach in Muldrock v The Queen and deny the fundamental sentencing principle that all relevant factors must be weighed.

On re-sentence, the Court applied the 30% combined discount to the undiscounted starting point of four years and six months, arriving at a head sentence of three years and one month. The Court declined to replicate mechanically the approximately 66% ratio between the head sentence and non-parole period that the sentencing judge had fixed, as the parties accepted it was not bound to do so. A non-parole period of two years and four months was determined to appropriately reflect both the gravity of the offence and the requirement under s 16A(2AAA)(b) of the Crimes Act 1914 (Cth) to allow sufficient time for the appellant to undertake a rehabilitation program.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed in the District Court on 10 August 2021 quashed.
  • In lieu thereof, a total term of imprisonment of 3 years and 1 month, commencing 25 July 2020 and expiring 24 August 2023, imposed.
  • Non-parole period of 2 years and 4 months fixed.
  • Earliest date for release: 24 November 2022.

Key Takeaways

  • Under ss 16AAC(2)-(3) of the Crimes Act 1914 (Cth), a sentencing court may reduce a federal child sex offence sentence below the statutory mandatory minimum whenever it is taking into account a guilty plea or cooperation with law enforcement. There is no prerequisite that the offending be assessed as falling within the lowest category of objective seriousness.
  • The Court of Criminal Appeal confirmed that the contrary interpretation, previously advanced by the Crown at first instance and apparently drawn from an Explanatory Memorandum, was inconsistent with Muldrock v The Queen and the fundamental sentencing principle that all relevant factors must be weighed.
  • Sentencing judges are not required to apply the same proportional ratio between head sentence and non-parole period when a re-sentence occurs after the original ratio was produced under an error of law.
  • Where an offender is being sentenced for a Commonwealth child sex offence, s 16A(2AAA)(b) of the Crimes Act 1914 (Cth) requires the court, in fixing the length of the sentence and non-parole period, to allow sufficient time for the offender to undertake a rehabilitation program.
  • The decision was reached in circumstances where the sentencing judge had not had the benefit of R v Delzotto, which resolved the correct construction of the mandatory minimum and discount provisions under ss 16AAA, 16AAB, and 16AAC.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth) s 474.22(1)
- Crimes Act 1914 (Cth) ss 3, 16A, 16A(2AAA)(b), 16AAA, 16AAB, 16AAC(2), 16AAC(3)
- Crimes Act 1900 (NSW) ss 61M(2), 91G(1)(a), 91H(2), 91L(3)
- Child Protection (Offenders Registration) Act 2000 (NSW) s 16C

Cases
- R v Delzotto [2022] NSWCCA 117
- Bahar v The Queen (2011) 214 A Crim R 417; [2011] WASCA 249
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (referenced within Delzotto extracts)