James v R [2013] NSWCCA 272

James v R [2013] NSWCCA 272

The Court held that the sentences for the transmission offences were suggestive of error because the sentencing judge made a mid-range assessment and imposed graduated individual sentences without evidence of the content or categories of the files transmitted for each count. The appropriate course was to give the applicant an opportunity to decide whether to adduce further evidence on re-sentencing; if no further evidence were adduced to demonstrate error, the application would be dismissed.

Jurisdiction
Australia
Judgment Date
01 November 2013
Procedural Posture
Sentence Appeal / Application for Leave to Appeal Against Sentences; Procedural Ruling on Possible Re Sentencing Evidence
Outcome
The applicant was directed to notify the Registrar and the Crown whether he proposed to adduce further evidence on re-sentencing; the application was to be listed for further directions.
Legal Topics
['sentence Appeal' 'possession and Transmission of Child Pornography or Child Abuse Material' 'using a Carriage Service to Cause Offence' 'objective Seriousness' 'manifestly Excessive Sentences' 're Sentencing']
['criminal Law'] ['sentence Appeal' 'possession and Transmission of Child Pornography or Child Abuse Material' 'using a Carriage Service to Cause Offence' 'objective Seriousness' 'manifestly Excessive Sentences' 're Sentencing']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 1 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Sentence Appeal / Application for Leave to Appeal Against Sentences; Procedural Ruling on Possible Re Sentencing Evidence

Legal Issues

  1. 1 ['Whether the sentencing judge erred in assessing the objective seriousness of counts 1 to 15 as being in the mid range of seriousness.' 'Whether the sentencing judge erred in assessing the objective seriousness of count 17 as being within the mid range of objective seriousness.' 'Whether the head sentences and non-parole periods were manifestly excessive.' 'Whether the applicant should have an opportunity to adduce further evidence on re-sentencing.']

Ratio Decidendi

The Court held that the sentences for the transmission offences were suggestive of error because the sentencing judge made a mid-range assessment and imposed graduated individual sentences without evidence of the content or categories of the files transmitted for each count. The appropriate course was to give the applicant an opportunity to decide whether to adduce further evidence on re-sentencing; if no further evidence were adduced to demonstrate error, the application would be dismissed.

Court Disposition

The applicant was directed to notify the Registrar and the Crown whether he proposed to adduce further evidence on re-sentencing; the application was to be listed for further directions.

Orders

  • ['The applicant is directed to notify the Registrar and the Crown no later than 15 November 2013 whether he proposes to adduce further evidence on re-sentencing.' 'The application will then be listed for further directions on a date convenient to the parties.' 'The parties may approach either the Registrar or the...