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Court of Criminal Appeal 18 February 2022

Brierley v R

[2022] NSWCCA 26

Sexual offences
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE POSSESS CHILD ABUSE MATERIAL SENTENCE

Citation: Brierley v R [2022] NSWCCA 26
Court: NSW Court of Criminal Appeal
Date: 18 February 2022
Judges: Beech-Jones CJ at CL, Harrison J, Fagan J

Background

The applicant, an 82-year-old former corporate figure with no prior criminal history, was stopped by Australian Border Force officers at Sydney Airport on 17 December 2019. Officers found child abuse material on electronic devices in his possession. A subsequent search of his home that day uncovered further material on multiple devices.

The applicant pleaded guilty to three counts of possessing child abuse material contrary to s 91H(2) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 10 years imprisonment. The material comprised almost entirely Category 2 images (sexualised poses, no depictions of physical abuse or sexual acts), along with one Category 1 image and written documents describing sexual fantasies involving children. In total, approximately 46,795 Category 1 and 2 images were located, many of them duplicates across multiple devices.

The District Court imposed an aggregate sentence of 14 months imprisonment with a non-parole period of 7 months, commencing 14 October 2021. The applicant sought leave to appeal against that sentence in the Court of Criminal Appeal.

  • Whether the sentencing judge erred by treating the applicant's possession of images over a number of years as a factor increasing the objective seriousness of the offences (Ground 1)
  • Whether the applicant was denied procedural fairness on that same issue, because the duration of possession was raised and relied upon without adequate opportunity to respond (Ground 2)
  • Whether new evidence, unavailable at the time of sentencing, demonstrated that conditions of custody were significantly worse than the sentencing judge had been led to believe, warranting resentencing (Ground 3)

Decision

Grounds 1 and 2: The Court did not resolve Grounds 1 and 2 definitively, as the appeal was decided on Ground 3. Beech-Jones CJ at CL noted, however, that on resentencing, the duration of the applicant's possession was properly to be treated as a matter counting against any claim to leniency, even if its precise relevance to objective seriousness required further consideration.

Ground 3: The Court accepted new evidence going to the applicant's conditions of custody and deteriorating physical and mental health following sentence. The evidence revealed that the unit within the correctional system designed for elderly prisoners with low-to-medium needs was at capacity, leaving the applicant housed in a mainstream cell that was not appropriately equipped for a frail and unstable 84-year-old man. The Court found this situation was materially different from the picture presented to the sentencing judge, who had been given aspirational and unrealistic assurances by Justice Health about the care arrangements that would be available.

Fagan J (whose reasons were adopted by Harrison J and Beech-Jones CJ at CL) observed that the sentencing judge would have had grounds to consider a shorter term or an alternative sentencing option had she been accurately informed about the lack of adequate facilities. The Court also noted that where chronic shortfalls in prison capacity affect geriatric offenders, accurate information must be placed before sentencing courts. Despite the seriousness of the offending, all three judges agreed that no sentence other than full-time custody was appropriate, but that a shorter term permitting early release on parole was warranted given the new circumstances.

Orders Made

• Leave to appeal granted
• Appeal against sentence upheld
• Aggregate sentence imposed quashed
• Applicant resentenced to a shorter term in accordance with orders pronounced by the Court on 1 February 2022

The Court indicated at the hearing on 1 February 2022 that the following steps were taken:
- Leave to appeal granted
- Appeal against sentence upheld
- Aggregate sentence imposed by the District Court quashed
- Applicant resentenced to a shorter aggregate term, with orders pronounced on 1 February 2022

Key Takeaways

  • Post-sentence evidence of materially worse custody conditions than those represented to the sentencing judge can constitute a basis for resentencing on appeal, even where the original sentence was otherwise within range.
  • A sentencing judge's reliance on assurances from correctional health officials about an offender's care arrangements may be undermined where those assurances prove aspirational or inaccurate, and this can affect the fairness and appropriateness of the sentence ultimately imposed.
  • The Court of Criminal Appeal confirmed that, where geriatric or seriously unwell offenders are involved, accurate information about available custodial facilities is essential to the exercise of the sentencing discretion.
  • Fagan J noted that where inadequate facilities for elderly prisoners represent a chronic rather than temporary problem, the Director of Public Prosecutions bears responsibility for bringing that shortfall to the attention of the Executive, so that sentencing courts are not placed in an impossible position.
  • Even where grounds of appeal concerning objective seriousness and procedural fairness are not formally resolved, the court indicated on resentencing that the duration of an offender's possession of child abuse material is a factor disentitling the offender to leniency, regardless of whether it also bears on objective seriousness.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 91H(2)

Cases
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Bailey v R (1988) 35 A Crim R 458
- Giles v Director of Public Prosecutions (NSW) (2009) 198 A Crim R 395; [2009] NSWCCA 308
- Iglesias v R [2006] NSWCCA 261
- Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118
- R v JCW (2000) 112 A Crim R 466; [2000] NSWCCA 209
- R v Keir [2004] NSWCCA 106
- R v Munday [1981] 2 NSWLR 177
- R v Smith (1987) 44 SASR 587
- R v Vachalec [1981] 1 NSWLR 351
- Springer v R (2007) 117 A Crim R 13; [2007] NSWCCA 289
- Turkmani v R (2014) 244 A Crim R 402; [2014] NSWCCA 186
- Wright v R (2016) 259 A Crim R 133; [2016] NSWCCA 122