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Court of Criminal Appeal 7 March 2025

Meers v R

[2025] NSWCCA 27

Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE TOTALITY LEAVE TO APPEAL GRANTED APPEAL UPHELD

Citation: Meers v R [2025] NSWCCA 27
Court: Court of Criminal Appeal, New South Wales
Date: 7 March 2025
Judges: Bell CJ, Stern JA, Yehia J

Background

The appellant had pleaded guilty to nine offences: four state offences of producing child abuse material under s 91H(2) of the Crimes Act 1900 (NSW), and five federal offences of using or facilitating the use of a carriage service for child abuse material under the Criminal Code Act 1995 (Cth). The offending involved multiple victims and spanned several years.

In May 2023, the District Court imposed two separate aggregate sentences. The state offences attracted 6 years' imprisonment (non-parole period of 3 years and 4 months), and the federal offences attracted 6 years and 6 months' imprisonment (non-parole period of 3 years and 7 months). The federal sentence was wholly accumulated on the non-parole period of the state sentence, producing a total effective sentence of 9 years and 10 months with a non-parole period of 6 years and 11 months.

The appellant sought leave to appeal to the Court of Criminal Appeal on the sole ground that the total effective sentence was manifestly excessive. The Crown did not oppose the grant of leave.

  • Whether the total effective sentence of 9 years and 10 months (with a non-parole period of 6 years and 11 months) was manifestly excessive.
  • Whether the sentencing judge's decision to wholly accumulate the federal sentence on the non-parole period of the state sentence failed to give proper effect to the totality principle.
  • How the totality principle applies when a sentencing court imposes separate aggregate sentences for state and federal offences.

Decision

Yehia J (with whom Bell CJ and Stern JA agreed) held that leave to appeal should be granted and the appeal upheld. The court found that each of the two aggregate sentences, viewed individually, was appropriately described as "stern" but not manifestly excessive. The error lay not in the quantum of either aggregate sentence, but in the structural decision to wholly accumulate one upon the other.

The court affirmed that, while the determination of the degree of accumulation or concurrency between sentences is a matter of discretion, that discretion is constrained by the totality principle. The totality principle requires a sentencing court, when imposing multiple sentences, to assess whether the resulting total effective sentence is just and appropriate having regard to the full criminality of the offending. The court noted that there was little, if any, discussion of totality as between the two aggregate sentences during the original sentencing proceedings.

Yehia J found that, given both the seriousness and the distinct nature of the state and federal offending, a substantial degree of accumulation was warranted. However, complete accumulation went too far. The court identified sufficient commonalities between the two bodies of offending to justify partial concurrency. Wholly accumulating the federal sentence on the state non-parole period produced a total sentence that crossed from "stern" or "harsh" into manifestly excessive territory.

On resentencing, the court introduced a period of 18 months' partial concurrency between the two aggregate sentences. The individual aggregate sentences remained unchanged; only the commencement date of the federal sentence was adjusted.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Original sentence quashed.
  • Resentenced as follows:
  • State offences (sequences 12, 13, 19 and 20): Aggregate sentence of 6 years' imprisonment, commencing 16 March 2022 and expiring 15 March 2028, with a non-parole period of 3 years and 4 months expiring 15 July 2025. (Unchanged.)
  • Federal offences (sequences 1, 22, 26, 27 and 37): Aggregate sentence of 6 years and 6 months' imprisonment, commencing 16 January 2024 and expiring 15 July 2030, with a non-parole period of 3 years and 7 months expiring 15 August 2027.
  • Total effective sentence: 8 years and 4 months' imprisonment, with a total effective non-parole period of 5 years and 5 months.

Key Takeaways

  • The totality principle applies with full force when a sentencing court structures two separate aggregate sentences (one state, one federal) and must consider whether the resulting total effective sentence is proportionate to the offender's overall criminality, not merely whether each individual sentence is appropriate in isolation.

  • Where there are sufficient commonalities between bodies of offending, complete accumulation of separate aggregate sentences may produce a manifestly excessive total effective sentence even when each aggregate sentence is itself unobjectionable.

  • A degree of accumulation, including substantial accumulation, may be warranted where offences are distinct in character; however, the extent of accumulation remains circumscribed by the totality principle rather than being an unfettered exercise of sentencing discretion.

  • In upholding the appeal, the Court of Criminal Appeal confirmed that the question of manifest excess in total effective sentences involves an assessment of totality and is often, as courts have recognised, a matter of impression informed by the gravity of the offending, sentencing practice, maximum penalties, and matters personal to the offender.

  • Insufficient attention to the totality principle at the original sentencing, demonstrated here by limited discussion between the parties and the sentencing judge about concurrency as between the two aggregate sentences, was a significant feature supporting the conclusion that appellate intervention was warranted.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 91H(2)
- Crimes Act 1914 (Cth), s 16A(2)(h)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(eb), 21A(2)(k), 21A(2)(n), 21A(3)(m), 22A, 23
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Code Act 1995 (Cth), ss 474.22(1), 474.22A(1)

Key Cases:
- R v Holder (1983) 3 NSWLR 245 (totality principle)
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- Ayoub v R [2024] NSWCCA 168
- Azzopardi v The Queen (2011) 219 A Crim R 369; [2011] VSCA 372
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Astill v R [2024] NSWCCA 118
- JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297
- Davidson v R (2022) 300 A Crim R 214; [2022] NSWCCA 153
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
- Conte v R (2018) 86 MVR 239; [2018] NSWCCA 209