Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162 Hearing dates: 28 June 2012 Decision date: 03 August 2012 Before: Basten JA at [1]; Price J at [99]; S G Campbell J at [100] Decision: (1) Dismiss the appeal against conviction in respect of counts 8-11. (2) Refuse leave to appeal against conviction on counts 1-7 and 12. (3) Grant leave to appeal against the sentences imposed in respect of counts 8-11. (4) Allow the appeal in respect of the sentences on counts 8-11; quash the sentences imposed in the District Court and re-sentence the appellant to the following terms: (a) with respect to count 8, a term of imprisonment for three years commencing on 8 March 2011 and terminating on 7 March 2014; (b) in respect of count 9, a term of three years imprisonment commencing on 8 March 2012 and terminating on 7 March 2015; (c) with respect to count 10, a term of imprisonment of three months commencing on 8 March 2013 and terminating on 7 June 2013; (d) on count 11, a term of imprisonment of three years commencing on 8 March 2013 and terminating on 7 March 2016. (5) In respect of the sentences imposed in the District Court on counts 1-7 and 12, and the further sentences imposed by these orders on counts 8-11, confirm the non-parole period imposed in the District Court, being four years commencing on 8 September 2009 and expiring on 7 September 2013. (6) The earliest date on which the appellant is eligible for conditional release is therefore 7 September 2013. Catchwords: CRIMINAL LAW - appeal - conviction - encouragement of sexual intercourse with a child under 16 years of age outside Australia - whether person encouraged must be Australian citizen or resident - discussion of XYZ v The Commonwealth [2006] HCA 25; 227 CLR 532 - Crimes Act 1914 (Cth), ss 50AD, 50BA and 50DB