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7
Court of Criminal Appeal 30 August 2023

Lazarus v R

[2023] NSWCCA 214

Sexual offences
P OSSESSION OF CHILD ABUSE MATERIAL S PECIFIC DETERRENCE G ENERAL DETERRENCE SENTENCING FACTORS APPLICANT RESENTENCED NO LESSER SENTENCED WARRANTED

Citation: Lazarus v R [2023] NSWCCA 214
Court: NSW Court of Criminal Appeal
Date: 30 August 2023
Judge(s): Beech-Jones CJ at CL; Ierace J; Cavanagh J

Background

The applicant was convicted of 13 Commonwealth offences in the District Court of New South Wales, including possession of child pornography material, use of a carriage service to transmit material to persons under 16, and solicitation of child pornography material via a carriage service. Two further offences involving the sending of indecent material to a person under 16 were taken into account by certificate under s 16BA of the Crimes Act 1914 (Cth). The offending spanned eight years, involved more than one young person, and included deception through the use of another person's identity.

The sentencing judge, Judge O'Brien AM DCJ, imposed an aggregate sentence of 6 years and 6 months imprisonment with a non-parole period of 3 years and 9 months. The applicant sought leave to appeal, arguing that the sentencing judge had failed to properly engage with how the applicant's mental health conditions bore on both specific and general deterrence.

  • Whether the sentencing judge erred by failing to determine what weight ought to be given to specific deterrence in the circumstances.
  • Whether the sentencing judge erred by failing to determine what weight ought to be given to general deterrence, having regard to the applicant's mental health condition.
  • On resentencing, whether the mental health evidence was sufficient to reduce the weight attached to general and specific deterrence, and whether any lesser sentence was warranted.
  • Whether appellate courts can develop general principles about the weight to be given to sentencing factors such as general deterrence for particular classes of offences, consistently with Markarian v The Queen and s 16A(2) of the Crimes Act 1914 (Cth).

Decision

The Crown conceded error on ground 2, and the Court agreed: the sentencing judge had not engaged with the applicant's submission that his mental health conditions should limit the weight given to general deterrence. Because that error was made out, the Court found it unnecessary to determine ground 1 concerning specific deterrence separately, and proceeded to resentence the applicant.

On resentencing, the Court adopted the sentencing judge's findings of fact, objective seriousness, and subjective circumstances, except in relation to deterrence. The forensic psychologist's opinion was found not to be compelling or conclusive. Critically, there was no diagnosis of a recognised psychiatric condition that caused the offending conduct, which significantly limited the applicant's ability to rely on his mental health to reduce the sentencing weight attached to deterrence.

The Court accepted that the applicant's mental health problems tempered the importance of general deterrence, but only to a limited extent. General deterrence remained an important consideration given the nature and gravity of the offences. Specific deterrence also retained a limited role. Taking all factors into account, the Court concluded that no lesser sentence was warranted.

Beech-Jones CJ at CL wrote separately to address a debate raised during the appeal about whether statements in cases such as Assheton and Porte, to the effect that general deterrence is a paramount consideration in child pornography offences, are inconsistent with Markarian and s 16A(2). His Honour concluded that the process of instinctive synthesis does not require equal weight to be given to all sentencing factors, and that appellate courts may develop principles about the weight generally attached to particular factors in defined categories of cases. Such principles, including those governing the reduced role of general deterrence for mentally ill offenders derived from De La Rosa, are consistent with the statutory framework and do not impermissibly fetter the sentencing discretion.

Orders Made

  • Leave to appeal granted.
  • The appeal is dismissed.

Key Takeaways

  • Where a person's mental health contributes in a material way to the commission of an offence, the offender may be regarded as an inappropriate vehicle for general deterrence, potentially reducing the sentence. However, the extent of that reduction depends heavily on the quality and nature of the psychiatric evidence.
  • A forensic psychology opinion that is neither compelling nor conclusive, and that does not identify a recognised psychiatric diagnosis causally linked to the offending, will carry limited weight in displacing the importance of general deterrence.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that general deterrence remains an important sentencing consideration for child abuse material offences, even where some mental health impairment is accepted.
  • Appellate courts can legitimately develop general principles about the weight to be attached to sentencing factors in particular categories of cases. Such principles do not contradict Markarian's instinctive synthesis approach, which requires all relevant factors to be weighed but does not mandate equal weight across all of them.
  • Under s 16A(2) of the Crimes Act 1914 (Cth), no statutory hierarchy of sentencing factors exists, but this does not prevent courts from developing principled guidance about the relative importance of factors in defined classes of offending.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 3, 16A(2), 16BA
- Criminal Code (Cth), ss 474.19(1), 474.22(1), 474.22A(1), 474.26(1), 474.27A(1)

Cases
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- DL v R (2018) 265 CLR 215; [2018] HCA 32
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75
- R v Engert (1995) 84 A Crim R 67
- Assheton v R (2002) 132 A Crim R 237; [2002] WASCA 209
- Director of Public Prosecutions (Cth) v D'Alessandro (2010) 26 VR 477; [2010] VSCA 60
- R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174
- Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301
- Director of Public Prosecutions (Cth) v Garside (2016) 50 VR 800; [2016] VSCA 74
- Director of Public Prosecutions (Cth) v Watson (2016) 259 A Crim R 327; [2016] VSCA 73
- Director of Public Prosecutions (Cth) v Zarb (2014) 247 A Crim R 225; [2014] VSCA 347
- Director of Public Prosecutions (Cth) v Guest [2014] VSCA 29
- Fitzgerald v R [2015] NSWCCA 266
- Turnbull v R [2019] NSWCCA 97
- R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370
- R v Booth [2009] NSWCCA 89
- R v Jones (1999) 108 A Crim R 50; [1999] WASCA 24