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Court of Criminal Appeal 21 March 2025

Dyball v R

[2025] NSWCCA 39

Sexual offencesFirearms & weapons
CRIME APPEALS APPEAL AGAINST SENTENCE APPEAL OUT OF TIME EXTENSION GRANTED BESTIALITY MATERIAL

Citation: Dyball v R [2025] NSWCCA 39
Court: NSW Court of Criminal Appeal
Date: 21 March 2025
Judges: Price AJA, Dhanji J (principal judgment), Yehia J

Background

The applicant pleaded guilty to six offences: two federal charges of using and possessing child abuse material accessed via a carriage service, and four State charges covering possession of child abuse material, bestiality material, an unauthorised firearm, and a prohibited weapon. The offences were sentenced in the District Court at Port Macquarie on 15 August 2023 by Payne DCJ.

The sentencing judge imposed two separate aggregate sentences: three years for the federal offences and two years and nine months (with a non-parole period of one year) for the State offences. Each indicative sentence reflected a 25 per cent discount for early guilty pleas. The State sentence was ordered to commence two years into the federal sentence, producing a total effective sentence of four years and nine months with a three-year mandatory custodial component. The sentencing judge declined to make a recognizance release order for the federal offences.

The applicant sought leave to appeal out of time, raising two grounds: first, that the sentencing judge erred in her approach to accumulating the State sentence on the federal sentence; and second, that the State aggregate sentence was manifestly excessive (that is, unreasonably harsh on its face).

  • Whether leave to appeal out of time should be granted, given the delay pending a related CCA decision
  • Whether the sentencing judge erred in the approach taken to accumulating the State aggregate sentence on the federal aggregate sentence (Ground 1)
  • Whether the State aggregate sentence of two years and nine months was manifestly excessive (Ground 2)
  • How the applicant should be resentenced, including whether a recognizance release order should be made for the federal offences

Decision

Extension of time: The Court granted leave to appeal out of time. The delay was reasonable because the applicant waited for the CCA's decision in McGregor v R [2024] NSWCCA 200, handed down on 1 November 2024, which was directly relevant to the validity of the aggregate federal sentence imposed on the applicant.

Ground 1 (accumulation approach): The Court did not uphold this ground. The course taken by the sentencing judge in accumulating the State sentence on the federal sentence was a course available to her. The real complaint, the Court found, was about the commencement date of the State sentence, which was properly addressed through the question of manifest excess under Ground 2.

Ground 2 (manifest excess): The Court upheld this ground. The indicative sentence of two years and three months for the State child abuse material offence was within the available range, given the significant volume of material involved. However, the additional six months attributed to the bestiality material, firearms, and weapons offences was difficult to justify and materially increased the overall sentence's severity. Combined with the commencement date of the State sentence two years into the three-year federal term, the total result was simply too long.

Resentencing: The Court resentenced the applicant by advancing the commencement date of the State sentence by three months (to 14 August 2024 rather than 14 August 2025) and reducing the State aggregate term to two years and three months. This allowed for a greater degree of concurrency between the two aggregate sentences. The Court also found special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and made a recognizance release order for the federal sentence, directing the applicant's release after serving two years of that term, subject to supervision and behavioural conditions.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences imposed by Payne DCJ on 15 August 2023 quashed
  • Federal offences (sequences 1 and 2): Aggregate term of 3 years imprisonment commencing 14 August 2023, expiring 13 August 2026; recognizance release order directing release after 2 years (13 August 2025) upon entering surety of $100, with conditions including good behaviour for 1 year, supervision by a probation officer, compliance with probation officer directions, no interstate or overseas travel without written permission, and participation in treatment or rehabilitation programs as directed
  • State offences (sequences 5, 9, 12 and 15): Aggregate term of 2 years and 3 months commencing 14 August 2024, comprising a non-parole period of 1 year (expiring 13 August 2025) and balance of term of 1 year and 3 months (expiring 13 November 2026)

Key Takeaways

  • When sentencing for multiple offences spanning both federal and State jurisdictions, the principle from Pearce v The Queen (1998) 194 CLR 610 applies: the punishment exacted should reflect what an offender has done and should not be distorted by the way individual offence provisions happen to be drawn.
  • A ground of appeal framed as error in the "approach to accumulation" is difficult to sustain where the course taken by the sentencing judge was one open to her; complaints about the resulting commencement date are better addressed through a manifest excess ground.
  • Where relatively minor additional offences, here firearms and weapons charges assessed as not objectively serious, substantially inflate an aggregate sentence when combined with an existing federal term, the overall sentence may be manifestly excessive even if individual indicative terms are within range.
  • A recognizance release order under s 19AC of the Crimes Act 1914 (Cth) operates as a mechanism analogous to a non-parole period for federal sentences, and the Court of Criminal Appeal may make such an order on resentencing where a greater degree of concurrency between federal and State terms is necessary to avoid an excessive total sentence.
  • Delaying a sentencing appeal to await a closely related CCA decision capable of resolving a threshold validity issue will, in appropriate circumstances, constitute a reasonable basis for granting an extension of time.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 91H, 547E(2)
- Crimes Act 1914 (Cth), ss 16A(2), 19AC, 20(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 25D, 44, 47(2)(b), 53A
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Code Act 1995 (Cth), ss 474.22(1), 474.22A(1)
- Criminal Procedure Act 1986 (NSW), s 166
- Firearms Act 1996 (NSW), ss 7A(1), 39(1)(a)
- Weapons Prohibition Act 1998 (NSW), s 7(1)

Cases:
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- McGregor v R [2024] NSWCCA 200
- Beck v R [2024] NSWCCA 201
- Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
- Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75
- R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Director of Public Prosecutions (Vic) v Swingler [2017] VSCA 305; (2017) 269 A Crim R 526