Small v R [2020] NSWCCA 216

Small v R [2020] NSWCCA 216

The sentencing Judge took the Applicant's guilty pleas for the Commonwealth offences into account but did not quantify the allowance for their utilitarian value, while quantifying a 25% discount for the State offences. Applying Xiao v R, there was no good reason for that distinction, and the ground of appeal was made out. On resentencing, the seriousness of the Commonwealth offences, the vulnerable real child victim, the Applicant's recidivism, absence of remorse or insight, and the need for specific deterrence, general deterrence and community protection required substantial sentences, but a quantified 25% utilitarian discount for the early guilty pleas produced modestly reduced...

Jurisdiction
Australia
Judgment Date
28 August 2020
Procedural Posture
Application for Extension of Time and Leave to Appeal Against Sentence / Court of Criminal Appeal; Sentence Appeal From the District Court of New South Wales Decision of 17 November 2017
Outcome
Extension of time granted; leave to appeal against sentence granted; appeal allowed in relation to Sequences 10 and 11; Applicant resentenced for those Commonwealth offences; State offence sentences confirmed.
Legal Topics
['grooming Offences' 'child Pornography' 'child Abuse Material' 'child Protection Register Reporting Obligations' 'utilitarian Value of Guilty Pleas' 'commonwealth Sentencing' 'extension of Time' 'non Parole Period']
['criminal Law' 'sentencing' 'criminal Appeals'] ['grooming Offences' 'child Pornography' 'child Abuse Material' 'child Protection Register Reporting Obligations' 'utilitarian Value of Guilty Pleas' 'commonwealth Sentencing' 'extension of Time' 'non Parole Period']

Case Brief

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Procedural Posture

Application for Extension of Time and Leave to Appeal Against Sentence / Court of Criminal Appeal; Sentence Appeal From the District Court of New South Wales Decision of 17 November 2017

Legal Issues

  1. 1 ['Whether time should be extended for the Applicant to apply for leave to appeal against sentence.' "Whether the sentencing Judge erred by failing to quantify the utilitarian value of the Applicant's guilty pleas for the Commonwealth offences under s.16A(2)(g) Crimes Act 1914 (Cth)." 'Whether the Applicant should be resentenced for the Commonwealth offences in Sequences 10 and 11.']

Ratio Decidendi

The sentencing Judge took the Applicant's guilty pleas for the Commonwealth offences into account but did not quantify the allowance for their utilitarian value, while quantifying a 25% discount for the State offences. Applying Xiao v R, there was no good reason for that distinction, and the ground of appeal was made out. On resentencing, the seriousness of the Commonwealth offences, the vulnerable real child victim, the Applicant's recidivism, absence of remorse or insight, and the need for specific deterrence, general deterrence and community protection required substantial sentences, but a quantified 25% utilitarian discount for the early guilty pleas produced modestly reduced...

Court Disposition

Extension of time granted; leave to appeal against sentence granted; appeal allowed in relation to Sequences 10 and 11; Applicant resentenced for those Commonwealth offences; State offence sentences confirmed.

Orders

  • ['Extend time for the Applicant to apply for leave to appeal against sentence to 5 May 2020.' 'Grant the Applicant leave to appeal against sentence.' 'The sentences imposed at the Sydney District Court on 17 November 2017 for offences of failing to comply with reporting obligations contrary to s.17(1) the Child...