CR v R [2020] NSWCCA 289

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: CR v R [2020] NSWCCA 289 Hearing dates: 21 October 2020 Decision date: 23 November 2020 Before: Hoeben CJ at CL at [1] Harrison J at [2] Bellew J at [3] Decision: (1) Grant leave to appeal. (2) Allow the appeal. (3) Quash the sentence imposed in the District Court of NSW. (4) In lieu thereof, sentence the applicant to imprisonment for 6 years and 3 months commencing on 9 March 2017 and expiring on 8 June 2023. (5) Specify a non-parole period of 4 years and 1 month imprisonment commencing on 9 March 2017 and expiring on 8 April 2021. Catchwords: CRIMINAL LAW – Sentence – Appeal – Where applicant pleaded guilty to one count of producing child abuse material, two counts of using a child under 14 years of age to produce child abuse material and one count of possessing child abuse material – Where sentencing judge erred in applying a non-existent standard non-parole period to two of the offences – Error established – Necessity to re-sentence the applicant in the fresh exercise of the sentencing discretion – Consideration of factors relevant to sentence for this kind of offending – General deterrence and denunciation of paramount importance – Where the applicant pleaded guilty at the first available opportunity – Where the material was produced or possessed for the applicant's own use – Where the applicant was not acting in a collaborative network of like-minded individuals – Where the offending was unsophisticated – Where the applicant's use of children was limited to superimposing photos of the faces of two children onto images and videos – Where the offending involved a serious breach of trust – Where prospects of rehabilitation were guarded – Where there were special circumstances justifying adjustment of statutory ratio – Applicant re-sentenced Legislation Cited: Child Protection (Offenders Registration) Act 2000 (NSW) Crimes Act 1900 (NSW) Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Butters v R [2010] NSWCCA 1 Carter v R [2018] NSWCCA 138 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 DPP (Cth) v D'Alessandro (2010) 26 VR 477; [2010] VSCA 60 DPP (Cth) v Guest [2014] VSCA 29 Maxwell v R [2020] NSWCCA 94 Pfitzner v R [2010] NSWCCA 314 R v Booth [2009] NSWCCA 89 R v CR [2019] NSWDC 884 R v De Leeuw [2015] NSWCCA 183 R v Elfar [2003] NSWCCA 358 R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370 R v Hutchinson [2018] NSWCCA 152 R v Jones (1990) 108 A Crim R 50; [1999] WASCA 24 R v Jongsma (2004) 150 A Crim R 386; [2004] VSCA 218 R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174 R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353 Weber v R [2020] NSWCCA 103 Yeung v R [2018] NSWCCA 52 Category: Principal judgment Parties: CR – Applicant Regina – Respondent Representation: Counsel: I McLachlan – Applicant G Newton – Respondent