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Court of Criminal Appeal 3 March 2023

Woods v R

[2023] NSWCCA 37

Sexual offences
COMPELLING SUBJECTIVE CIRCUMSTANCES MANIFEST EXCESS G ROUNDS OF APPEAL NOT MADE OUT L EAVE TO APPEAL GRANTED A PPEAL DISMISSED

Citation: Woods v R [2023] NSWCCA 37
Court: NSW Court of Criminal Appeal
Date: 3 March 2023
Judge(s): Mitchelmore JA, Button J, Wright J

Background

The appellant pleaded guilty in the Local Court to using a carriage service to solicit child abuse material, contrary to s 474.22(1) of the Criminal Code (Cth), which carries a maximum penalty of 15 years' imprisonment. He also asked the court to take into account a related offence of using a carriage service to groom a person he believed to be under 16 years of age. The offending involved online conversations with a police officer using an assumed identity as a 14-year-old female, meaning there was no actual child victim.

The matter was committed to the District Court for sentence. Robinson DCJ sentenced the appellant to nine months' imprisonment but directed his immediate release under a recognizance release order (under s 20(1)(b) of the Crimes Act 1914 (Cth)), subject to conditions including supervision by Community Corrections for up to two years and good behaviour for two years. The appellant had no prior criminal history and presented compelling subjective circumstances, including a mild intellectual disability, attention deficit hyperactivity disorder, Tourette's syndrome, and learning and speech difficulties.

The appellant sought leave to appeal against the sentence, arguing that the sentencing judge had erred in finding that no alternative to imprisonment was appropriate, and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred in finding, for the purpose of s 17A of the Crimes Act 1914 (Cth), that no sentence other than imprisonment was appropriate in all the circumstances
  • Whether the sentence of nine months' imprisonment, combined with immediate release under a recognizance release order, was manifestly excessive

Decision

On the first ground, the Court of Criminal Appeal found no appellable error. Section 17A of the Crimes Act 1914 (Cth) requires a court to be satisfied that no other sentence is appropriate before imposing imprisonment. Wright J held that the mere availability of a non-custodial alternative does not mean that imprisonment is unavailable or impermissible. Critically, the sentencing judge had not proceeded on an erroneous basis that a non-imprisonment sentence could never be appropriate for child pornography offending. Her Honour had genuinely considered all the circumstances before concluding that imprisonment was warranted.

On the second ground, the Court found that the sentence was not outside the range of available sentences and was not plainly unjust or unreasonable. Button J went further, describing the sentence as "appropriately lenient." Wright J reasoned that, despite the appellant's powerful subjective case and the absence of an actual child victim, the specific and graphic nature of the conversations constituting the offending remained a significant factor. The combination of the short custodial term and the immediate release order reflected a substantial reduction in sentence weight, acknowledging the appellant's reduced moral culpability and the lesser role of deterrence and denunciation in his case. The fact that imprisonment was formally recorded did not render the overall sentencing outcome excessive.

Leave to appeal was granted because the first ground was found to be arguable and warranted proper consideration. Nonetheless, the appeal was dismissed on both grounds.

Orders Made

  • Leave to appeal is granted
  • The appeal is dismissed

Key Takeaways

  • Under s 17A of the Crimes Act 1914 (Cth), the availability of a non-custodial sentencing option does not automatically preclude a court from imposing a sentence of imprisonment; the question is whether imprisonment is appropriate in all the circumstances of the specific case.
  • A sentencing judge does not err simply by imposing imprisonment for child pornography offending where compelling subjective circumstances exist, provided the judge has genuinely considered those circumstances rather than applying a blanket rule.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence combining a short term of imprisonment with an immediate recognizance release order can fall within the available range, even where the offender is immediately released and serves no time in custody.
  • The absence of an actual child victim is a relevant mitigating consideration, but it does not automatically require a non-custodial outcome; the specific content and nature of the offending conduct remain significant sentencing factors.
  • Leave to appeal against sentence may be granted where a ground is arguable and requires proper consideration, even where the appeal ultimately fails on the merits.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 8
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Code (Cth), ss 474.22(1), 474.27(1)
- Crimes Act 1914 (Cth), ss 16A, 16BA, 17A, 20(1)(a), 20(1)(b), 21A

Cases:
- Atanackovic v The Queen (2015) 45 VR 179; [2015] VSCA 136
- Blackett v R [2021] NSWCCA 210
- DPP (Cth) v Boyles (a pseudonym) [2016] VSCA 267
- He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
- Majid v R [2010] NSWCCA 121
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- R v Baker [2000] NSWCCA 85
- R v De Leeuw [2015] NSWCCA 183
- Stephens v R [2009] NSWCCA 240
- Totaan v R [2022] NSWCCA 75
- Windle v R [2011] NSWCCA 277