R v Linardon [2014] NSWCCA 247

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Linardon [2014] NSWCCA 247 Hearing dates: 30 July 2014 Decision date: 04 November 2014 Before: Bathurst CJ at [1]; Adams J at [111]; R A Hulme J at [112] Decision: (1) Appeal allowed. (2) Order that the sentences imposed by the sentencing judge on 2 August 2013 be quashed and in lieu thereof the following sentences imposed: (a) For possession of child abuse material contrary to s 91H of the Crimes Act 1900 (NSW) a fixed term of imprisonment of 2 years commencing on 25 July 2013 and expiring on 24 July 2015. (b) For the offence of using a carriage service to transmit child pornography contrary to s 474.19(1)(a)(iii) of the Criminal Code Act 1995 (Cth) a term of imprisonment of 2 years and 8 months commencing on 25 November 2013 and expiring on 24 July 2016. (c) For the offence of using a carriage service to access child pornography contrary to s 474.19(1)(a)(i) of the Criminal Code Act 1995 (Cth) a term of imprisonment of 2 years and 8 months commencing on 25 March 2014 and expiring on 24 November 2016. (d) For the aggravated offence of transmitting child pornography on three or more occasions to two or more people contrary to s 474.24A(1)(a)(i) of the Criminal Code Act 1995 (Cth) a term of imprisonment of 3 years commencing on 25 July 2014 and expiring on 24 July 2017. (e) For the offence of using a carriage service to transmit an indecent communication to a person under the age of 16 years contrary to s 474.27A of the Criminal Code Act 1995 (Cth) a term of imprisonment of 3 years and 4 months commencing on 25 March 2015 and expiring on 24 July 2018. (3) With respect to the offences under the Criminal Code Act 1995 (Cth) there be imposed a single non-parole period of 3 years commencing on 25 November 2013 and expiring on 24 November 2016. Catchwords: CRIMINAL LAW - grounds of appeal - scope - whether ground of appeal wide enough for ground as to whether individual offence was manifestly inadequate CRIMINAL LAW - sentencing - manifestly inadequate - individual offences - failure to consider general deterrence - whether sentence in range of sentences that could have been imposed CRIMINAL LAW - sentencing - manifestly inadequate - total sentence - overall criminality - different criminal nature of each offence - accumulation CRIMINAL LAW - residual discretion - whether to exercise - need to send clear guidance to sentencing courts Legislation Cited: Crimes Act 1900 (NSW), s 91H Crimes Act 1914 (Cth), ss 5D, 16A and 19AB Criminal Code Act 1995 (Cth), ss 474.19, 474.24A, 474.27A and 474.27 Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A Legislation Amendment (Sexual Offences Against Children) Bill 2010 (Cth) Cases Cited: Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 Director of Public Prosecutions (Cth) v D'Alessandro [2010] VSCA 60; (2010) 26 VR 477 Director of Public Prosecutions v Karazisis [2010] VSCA 350; (2010) 31 VR 634 Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Minehan v The Queen [2010] NSWCCA 140; (2010) 201 A Crim R 243 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 R v Coupland (NSWDC, 22 June 2012) R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29 R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481 R v Poynder [2007] NSWCCA 157; (2007) 171 A Crim R 544 The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383 Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 Category: Principal judgment Parties: Crown (Appellant) David Armando Linardon (Respondent) Representation: Counsel: R J Bromwich SC/ R Ranken (Crown) R J Steward (Respondent) Solicitors: Commonwealth Director of Public Prosecutions (Crown) Prime Lawyers (Respondent) File Number(s): 2012/170806 Publication restriction: Pursuant to s 15A Children (Criminal Proceedings) Act 1987, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child victim. Identifying information has been removed from this judgment to comply with the statute. Decision under appeal Date of Decision: 2013-08-02 00:00:00 Before: Puckeridge AJ File Number(s): 2012/170806