R v Martin [2014] NSWCCA 283

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Martin [2014] NSWCCA 283 Hearing dates: 2 September 2014 Decision date: 01 December 2014 Before: Beazley P at [1]; R A Hulme J at [75]; Garling J at [76] Decision: 1. Appeal allowed; 2. Quash the sentences imposed by Sweeney DCJ and in their place impose the following periods of imprisonment: (a) In respect of count 4: a fixed term of imprisonment for 9 months, commencing on 22 November 2013; (b) In respect of count 1: a fixed term of imprisonment for 2 years, commencing on 22 May 2014; (c) In respect of count 2: a term of imprisonment of 2 years, commencing on 22 May 2014; (d) In respect of count 3: a term of imprisonment of 2 years, commencing on 22 May 2014; (e) In respect of count 5: a term of imprisonment of 4 years 6 months, commencing on 22 November 2014; (f) In respect of counts 2, 3 and 5, being the Commonwealth offences: a non-parole period of 3 years commencing on 22 May 2014. Catchwords: SENTENCE - Crown appeal against sentence - Criminal Appeal Act 1912, s 5D - accessing, possessing, making available and producing child pornography - whether sentence manifestly inadequate - whether residual discretion to dismiss appeal should be exercised - relevant factors

SENTENCE - Crown appeal against sentence - possession of child pornography - aggravating factors - sorting, storing and replicating material - destroying material with knowledge of police warrant

SENTENCE - Crown appeal against sentence - totality - accessing, possessing, making available and producing child pornography - whether sentences should be served concurrently - where offences of significantly different nature - need for partial accumulation to reflect totality of offending conduct Legislation Cited: Criminal Appeal Act 1912 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Crimes Act 1914 (Cth) Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 (Cth) Criminal Code 1995 (Cth) Cases Cited: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 Director of Public Prosecutions (Cth) v D'Alessandro [2010] VSCA 60; 26 VR 477 DPP v Smith [2010] VSCA 215 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Hutchins v Western Australia [2006] WASCA 258 Minehan v R [2010] NSWCCA 140; 201 A Crim R 243 Mouscas v R [2008] NSWCCA 181 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Pearce v R [1998] HCA 57; 194 CLR 610 R v Gent [2005] NSWCCA 370; 162 A Crim R 29 R v Gommeson [2014] NSWCCA 159 R v Guest [2014] VSCA 29 R v James [2009] NSWCCA 62 R v Jarrold [2010] NSWCCA 69 R v Mara [2009] QCA 208; 196 A Crim R 506 R v Mereb; R v Younan [2014] NSWCCA 149 R v Oliver [2003] 1 Cr App R 28 R v Talbot [2009] TASSC 107 R v Wall [2002] NSWCCA 42; 71 NSWLR 692 Saddler v The Queen [2009] NSWCCA 83; 194 A Crim R 452 Category: Principal judgment Parties: Regina (Appellant) Wayne Kenneth Martin (Respondent) Representation: Counsel: G Farmer SC (Appellant) J Stratton SC (Respondent) Solicitors: Commonwealth Director of Public Prosecutions (Appellant) Kapsis and Associates (Respondent) File Number(s): 2012/248376 Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-11-22 00:00:00 Before: Sweeney DCJ File Number(s): 2012/248376