Brierley v R [2022] NSWCCA 26

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Brierley v R [2022] NSWCCA 26 Hearing dates: 1 February 2022 Date of orders: 1 February 2022 Decision date: 18 February 2022 Before: Beech-Jones CJ at CL at [1] Harrison J at [2] Fagan J at [21] Decision: (1) Grant leave to appeal against sentence. (2) Allow the appeal. (3) Quash the sentence imposed upon the appellant in the District Court by her Honour Judge Huggett on 14 October 2021. (4) In lieu thereof, sentence the appellant to an aggregate sentence of imprisonment of 10 months to date from 14 October 2021 and to expire on 13 August 2022 with an aggregate non-parole period of 4 months imprisonment to expire on 13 February 2022. (5) Specify the following indicative sentences: (a) Count 1 – imprisonment for 8 months. (b) Count 2 – imprisonment for 6 months. (c) Count 3 – imprisonment for 8 months. Catchwords: CRIMINAL LAW – appeal – appeal against sentence – possess child abuse material – whether sentencing judge erred in taking into account possession of images for a number of years in assessing objective seriousness – whether applicant was denied procedural fairness on issue of whether possession for a number of years increased objective seriousness – receipt of evidence regarding applicant's medical status post-sentence Legislation Cited: Crimes Act 1900 (NSW), s 91H(2) Cases Cited: Bailey v R (1988) 35 A Crim R 458 Giles v Director of Public Prosecutions (NSW) (2009) 198 A Crim R 395; [2009] NSWCCA 308 House v The King (1936) 55 CLR 499; [1936] HCA 40 Iglesias v R [2006] NSWCCA 261 Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 R v JCW (2000) 112 A Crim R 466; [2000] NSWCCA 209 R v Keir [2004] NSWCCA 106 R v Munday [1981] 2 NSWLR 177 R v Smith (1987) 44 SASR 587 R v Vachalec [1981] 1 NSWLR 351 Springer v R (2007) 117 A Crim R 13; [2007] NSWCCA 289 Turkmani v R (2014) 244 A Crim R 402; [2014] NSWCCA 186 Wright v R (2016) 259 A Crim R 133; [2016] NSWCCA 122 Category: Principal judgment Parties: Ronald Alfred Brierley (Applicant) Crown (Respondent) Representation: Counsel: T Game SC with L Hutchinson (Applicant) C Everson SC (Respondent)