WHILEY v R [2010] NSWCCA 53

New South Wales Court of Criminal Appeal

CITATION: WHILEY v R [2010] NSWCCA 53

HEARING DATE(S): 26 March 2010

JUDGMENT DATE: 23 April 2010

JUDGMENT OF: McClellan CJatCL at 1; James J at 2; Rothman J at 76

1. Leave to appeal against the sentences imposed by Judge Bennett on 9 December 2008 granted. DECISION: 2. Appeal against those sentences allowed. 3. In lieu thereof, sentence the applicant for each offence to a non-parole period of nine months commencing on 25 May 2008 and expiring on 24 February 2009 and a balance of the term of three months commencing on 25 February 2009 and expiring on 24 May 2009. Unless there is some reason, other than the applicant's commission of these offences, for holding the applicant in prison, the applicant is entitled to be released immediately.

CATCHWORDS: CRIMINAL LAW — Sentencing — producing child pornography — level of objective seriousness of offence — not produced for distribution — no exploitation or victimisation of any actual child

Crimes (Sentencing Procedure) Act LEGISLATION CITED: Crimes Act Customs Act

R v Gent (2005) 162 A Crim R 29 R v McNaughton (2006) 66 NSWLR 566 CASES CITED : R v Paintings, Drawings and Photographic Slides, April 20 1995 R v Stroempl (1995) Can L112283 (Ontario Court of Appeal) Saddler v R [2009] NSWCCA 83

PARTIES: Grant Neville Whiley - Appellant The Crown

FILE NUMBER(S): CCA 2008/4165

COUNSEL: R Wilson - Appellant M M Cinque - Crown

SOLICITORS: S O'Connor (Legal Aid Commission) S Kavanagh (Solicitor for Public Prosecutions)