Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Wagner v R [2018] NSWCCA 124 Hearing dates: 18 May 2018 Date of orders: 22 June 2018 Decision date: 22 June 2018 Before: Leeming JA, Button and Fagan JJ Decision: Leave to appeal against sentence is granted. The sentences passed on the applicant on 9 June 2017 in the District Court at Campbelltown are quashed and in lieu thereof the applicant is sentenced as is provided in orders 3, 4, 5 and 6. For count (or sequence) 1 the appellant is sentenced to imprisonment for 1 year and 3 months to commence 17 January 2017 and to expire on 16 April 2018. For count (or sequence) 2 the appellant is sentenced to imprisonment for 1 year and 11 months to commence 17 June 2017 and to expire on 16 May 2019. Pursuant to s 19AC and s 20(1)(b) of the Crimes Act 1914 (Cth) it is ordered that that the applicant be released at the expiry of 16 November 2018 upon his own recognizance, for a period of 6 months, (i) to be of good behaviour; (ii) to be subject to the supervision of officers of Community Corrections and to obey all reasonable directions of that service; (iii) to obey any requirement of Community Corrections that he permit inspection of any mobile phone owned or possessed by him and to provide access to any data on such mobile phone; (iv) to accept any direction of Community Corrections that he attend any sex offender treatment program and/or that he be evaluated for or accept treatment for any mental health disorder including depression; (v) to forfeit surety in the sum of $500 in the event of breach of any of these conditions. For count (or sequence) 3 the appellant is sentenced to imprisonment for a non-parole period of 1 year commencing on 17 November 2017 and expiring on 16 November 2018, with a balance of term of 6 months commencing on 17 November 2018 and to expire on 16 May 2019. The applicant will be eligible for release on parole at the expiry of 16 November 2018. Catchwords: CRIMINAL LAW – appeal – sentencing – guilty plea – whether error in not discounting sentence for Commonwealth offence on account of utilitarian value of guilty pleas. Legislation Cited: Crimes Act 1900 (NSW) s 91H(2) Crimes Act 1914 (Cth) s 19AC Criminal Code (Cth) s 474.19(1) Cases Cited: Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6 Xiao v R [2018] NSWCCA 4 Category: Principal judgment Parties: Adam Scott Wagner (applicant) Regina (respondent) Representation: Counsel: J Paingakulam (applicant) R Ranken (respondent) Solicitors: Legal Aid Commission of New South Wales (applicant) Commonwealth Director of Public Prosecutions (respondent) File Number(s): 2015/378627 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: Not published Date of Decision: 9 June 2017 Before: Herbert DCJ File Number(s): 2015/378627 Judgment 1. THE COURT: The applicant seeks leave to appeal against sentences passed in the District Court at Campbelltown on 9 June 2017 for two offences against s 474.19(1) of the Criminal Code (Cth) and one offence against s 91H(2) of the Crimes Act 1900 (NSW). The maximum penalty for the Commonwealth offences is 15 years imprisonment and for the State offence 10 years. 2. The applicant entered pleas of guilty to all charges and was sentenced as follows: 1. For the first s 474.19(1) offence (using a carriage service on 22 November 2013 to transmit, by uploading on the Internet, ten images of child abuse material) 1 year and 6 months imprisonment to commence 17 January 2017 and to expire 16 July 2018. 2. For the second s 474.19(1) offence (using a carriage service on 19 occasions between 9 December 2015 and 24 December 2015 to transmit child abuse material by providing links to an online storage site of images and videos): 2 years and 3 months imprisonment to commence on 17 July 2017 and to expire on 16 October 2019. With respect to the two Commonwealth sentences a direction was made pursuant to s 19AC of the Crimes Act 1914 (Cth) that the applicant be released on recognizance after 2 years from the commencement of the sentences; that is, from 16 January 2019. 3. For the offence against s 91H(2) of the Crimes Act (possessing child abuse material on his mobile phone and laptop computer): imprisonment for a non-parole period of 1 year commencing on 17 January 2018 and expiring on 16 January 2019, with a balance of term of 6 months commencing on 17 January 2019 and expiring on 16 July 2019. 1. Her Honour's nomination of commencement dates for each of these sentences had the effect that the overall period of imprisonment before release on parole or recognizance was 2 years, to be followed by a 9 month period of recognizance for the Commonwealth offences and a concurrent 6 month period of parole for the State offence. 2. The sole ground of appeal is: The sentencing judge erred in her Honour's consideration of the pleas of guilty in relation to the Commonwealth offences. Facts 1. The facts of count (1) were that the applicant had uploaded images onto a "blogging and social networking website" entitled Tumblr. The charge concerned a representative sample of 10 of the images. They were classified on the scale of the Child Exploitation Tracking Scheme ("CETS"). Seven of the images were in category 1 (child nudity or sexually suggestive images, without sexual activity). Two were in category 4 (in this case, penetrative sexual activity between an adult male and a prepubescent female child). 2. Count (2) was concerned with a much larger volume of material including 24 still images and 7 videos in category 4 (penetrative sexual activity involving children) and 7 images and one video in category 5 (sadism, humiliation and/or bestiality). The applicant had created a library of these images in a "Dropbox" and he provided other Internet users with access to the images by sending a link to the Dropbox, using a messaging application. Analysis of the application on his mobile phone showed that he had disseminated the images in this way on 19 separate occasions over the 16 days immediately preceding his arrest in December 2015. 3. Count (3) concerned the applicant's possession of the images referred to in count (2) plus a large number of additional images stored on his laptop computer and on a micro SD card which was inserted in it. These additional images were mostly stills in category 1 but there were also an additional 32 still images in category 4 and one in category 5. 4. In view of the narrow ground for which leave to appeal is sought it is not necessary to make reference to the subjective circumstances of the applicant, which her Honour took into account. The issue with respect to discounting for pleas of guilty 1. It is not argued that the individual sentences or the degree of accumulation in her Honour's orders were affected by any error except with respect to discounting for the pleas of guilty to the Commonwealth charges. On that subject her Honour said: The offender entered a plea of guilty to these offences prior to committal. The fact that the offender entered a plea of guilty has been taken into account on sentence for the Commonwealth offences. It was acknowledged to be a plea entered at the earliest opportunity. I do not accept, on balance, that the plea demonstrates a subjective mitigation of genuine remorse and acceptance of responsibility. Given the admissions made at the time of the arrest and the material located on the offender's mobile, the plea entered was in the face of [a] strong Crown case. For the state offence, a discount of 25% has been given in allowance for the utilitarian value of the early plea. 1. Prior to this Court's decision in Xiao v R [2018] NSWCCA 4 sentencing judges had considered themselves bound by authorities which held that, when regard was had to a plea of guilty as required by s 16(2)(g) of the Crimes Act 1914 (Cth), the utilitarian value of the plea could not of itself be taken into account in mitigation. On the basis of the judgment of the plurality in Cameron v The Queen (2002) 209 CLR 339; [2002] HCA 6 it was thought a plea could only count towards lenience to the extent it reflected remorse, acceptance of responsibility and/or willingness to facilitate the course of justice. 2. However in Xiao v R this Court held: [278] In these circumstances it is our opinion that in sentencing proceedings governed by s 16A, a sentencing judge is entitled to take the utilitarian value of a plea into account in sentencing. To the extent that [Tyler v The Queen [2007] NSWCCA 247] and the cases which followed it provide to the contrary, they should not be followed. [279] There remains the question of whether it is necessary or appropriate to specify the discount given for a plea. In R v Place (2002) 81 SASR 395; [2002] SASC 101, where the legislation in question was in similar terms to s 16A(2)(g), the plurality stated (at [81]-[83]) that courts should be encouraged to identify the specific reduction given. That is consistent with what was said by Kirby J in Cameron (at [71]) that it is desirable and certainly permissible to identify the measure of discount afforded for a plea of guilty. Further, McHugh J pointed out in Markarian [v The Queen (2005) 228 CLR 357; [2005] HCA 25] (at [74]) that specification of such a discount is not inconsistent with the instinctive synthesis approach to sentencing. [280] Section 16A(2)(g) neither requires nor prohibits the specification of a discount. However, once it is accepted that s 16A allows a sentencing judge to give a discount to the sentence which would otherwise be imposed, it seems to us desirable that, in the interests of transparency, such discounts be specified. However, there is no obligation on the sentencing judge to do so, and a failure to do so would not of itself amount to error. 1. Her Honour stated that she had taken into account the pleas of guilty to the Commonwealth charges but that she had not treated those pleas as manifesting remorse or acceptance of responsibility. No reference was made to any discounting of sentence on account of the utilitarian value of the pleas. The applicant submits that this indicates her Honour followed the approach which was generally accepted at the time (as summarised above at [10]). Further, it is submitted that her Honour must have applied only a minimal discount in the order of 10% for the pleas of guilty because of the restricted basis upon which she considered mitigation could be allowed for them. 2. The Court considers that these submissions should be accepted. No criticism is to be made of her Honour for having applied the principles of sentencing in Commonwealth matters as understood in June 2017. However in light of the clarification provided in Xiao v R it can be seen that the applicant was denied consideration of a basis of mitigation to which effect should have been given. Accepting the applicant's inference that a discount of only 10% was allowed it may be inferred that her Honour's starting-point sentence for count (1) was 1 year and 8 months and for count (2) 2 years and 6 months. In the circumstances of the case, had allowance also been made for the utilitarian value of the pleas a discount of 25% would have been appropriate. The resultant sentences would have been for count (1) 1 year and 3 months and for count (2) 1 year and 10½ months. Had her Honour arrived at these individual sentences, taking into account all other considerations in the way that she did but allowing a full discount for the pleas, no doubt the extent of accumulation would have been to some degree reduced and the overall non-parole period would accordingly have been less. 3. For these reasons the sentences imposed by her Honour must be quashed and the applicant resentenced. Taking into account the objective seriousness of the offences, the antecedents and mitigating subjective circumstances of the applicant and his pleas of guilty, the Court considers that appropriate sentences for the individual Commonwealth offences are as set out in the orders below. Although there is no complaint about the sentence for count (3) and the Court sees no reason to impose any different penalty, the date of commencement must be altered in order to adjust the degree of accumulation and the overall non-parole period in line with our view that a 25% discount should be allowed in respect of the Commonwealth matters. 4. The overall non-parole period resulting from this resentencing is 1 year and 10 months, to be followed by 6 months recognizance (for the Commonwealth matters) and 6 months on parole (for the State matters), to run concurrently. The lesser individual sentences which we consider appropriate for counts (1) and (2) do not translate directly into a mathematically proportionate reduction of the overall non-parole period. That is necessarily so because there is no reduction of sentence for the offence against s 91H(2) of the Crimes Act and because the total period of imprisonment without parole must reflect adequate punishment for the entire course of offending. 5. For these reasons the Court will make the following orders: 1. Leave to appeal against sentence is granted. 2. The sentences passed on the applicant on 9 June 2017 in the District Court at Campbelltown are quashed and in lieu thereof the applicant is sentenced as is provided in orders (3), (4), (5) and (6). 3. For count (or sequence) (1) the appellant is sentenced to imprisonment for 1 year and 3 months to commence 17 January 2017 and to expire on 16 April 2018. 4. For count (or sequence) (2) the appellant is sentenced to imprisonment for 1 year and 11 months to commence 17 June 2017 and to expire on 16 May 2019. 5. Pursuant to s 19AC and s 20(1)(b) of the Crimes Act 1914 (Cth) the applicant is to be released on 16 November 2018 upon his own recognizance, for a period of 6 months expiring on 16 May 2019, to observe the following conditions: 1. to be of good behaviour; 2. to be subject to the supervision of officers of Community Corrections and to obey all reasonable directions of that service; 3. to obey any requirement of Community Corrections that he permit inspection of any mobile phone owned or possessed by him and to provide access to any data on such mobile phone; 4. to accept any direction of Community Corrections that he attend any sex offender treatment program and/or that he be evaluated for or accept treatment for any mental health disorder including depression; 5. to forfeit surety in the sum of $500 in the event of breach of any of these conditions. 1. For count (or sequence) (3) the appellant is sentenced to imprisonment for a non-parole period of 1 year commencing on 17 November 2017 and expiring on 16 November 2018, with a balance of term of 6 months commencing on 17 November 2018 and to expire on 16 May 2019. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 June 2018