MARTIN, Geoffrey Keith v REGINA [2014] NSWCCA 124

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: MARTIN, Geoffrey Keith v REGINA [2014] NSWCCA 124 Hearing dates: 26 June 2014 Decision date: 10 July 2014 Before: Hoeben CJ at CL at [1] Rothman J at [2] Beech-Jones J at [3] Decision: (1) Application for leave to appeal allowed. (2) Appeal allowed in part. (3) Set aside the aggregate sentence imposed by the District Court on 30 August 2013 in respect of 24 offences under s 91H(2) of the Crimes Act 1900. (4) In lieu thereof: (a) impose an aggregate sentence of five years imprisonment to commence on 24 April 2013 and expire on 23 April 2018; (b) pursuant to s 44(2A) of the Sentencing Act set a non-parole period of three years and four months; (c) specify that the earliest date the applicant will be eligible to be released on parole is 23 August 2016; (d) pursuant to s 53A(2)(b) of the Sentencing Act, indicate to the applicant and record that an aggregate sentence is imposed and that the sentences that would have been imposed for each offence under s 91H(2) of the Crimes Act 1900 had separate sentences been imposed instead of an aggregate sentence are those specified in the schedule hereto. (5) Appeal otherwise dismissed. Catchwords: SENTENCING - possession of child abuse material - production and dissemination of child abuse material - aggregate sentence - totality - error in accumulation of "indicative" or notional sentence - whether indicative sentences for production and dissemination of fiction story by short message service (SMS) were manifestly excessive - re-sentencing. Legislation Cited: - Child Protection (Offenders Prohibition Orders) Act 2004 (NSW), s 5, s 13 - Crimes Act 1900 (NSW), s 91FB, s 91H, s 308F - Crimes Amendment (Sexual Offences) Act 2008 (NSW), Sch 1 - Crimes (Sentencing Procedure) Act 1999 (NSW), s 12, s 44, s 53A, s 54A - Criminal Procedure Act 1986 (NSW), Ch 1, Pt 3, Div 7 Cases Cited: - Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 - Hili v R; Jones v R [2010] HCA 45; 242 CLR 520 - Khawaja v R [2014] NSWCCA 80 - Minehan v R [2010] NSWCCA 140; 201 A Crim R 243 - PD v R [2012] NSWCCA 242 - Pearce v R [1998] HCA 57; 194 CLR 610 - R v Booth [2009] NSWCCA 89 - R v Brown [2012] NSWCCA 199 - R v C; Ex parte Commonwealth DPP [2004] QCA 469 - R v Gent [2005] NSWCCA 370; 162 A Crim R 29 - R v Grover; Grover v R [2013] NSWCCA 149 - R v Jarrold [2010] NSWCCA 69 - R v Nykolyn [2012] NSWCCA 219 - SHR v R [2014] NSWCCA 94 Category: Principal judgment Parties: Geoffrey Keith Martin (Applicant) Crown (Respondent) Representation: Counsel: G.T. Gillett (Applicant) V. Lydiard (Respondent) Solicitors: Simon O'Toole Solicitor (Applicant) S. Kavanagh, Solicitor for Public Prosecutions (Respondent) File Number(s): 2013/023233 Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-08-30 00:00:00 Before: Haesler SC DCJ File Number(s): 2013/023233