Clarke-Jeffries v R [2019] NSWCCA 56

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Clarke-Jeffries v R [2019] NSWCCA 56 Hearing dates: 15 March 2019 Date of orders: 15 March 2019 Decision date: 15 March 2019 Before: Simpson AJA at [1] Bellew J at [2] Campbell at [73] Decision: (1) Leave to appeal granted. (2) Appeal allowed. (3) Sentences imposed in the District Court quashed. (4) In lieu thereof the applicant is sentenced as follows: (a) In respect of the charge of using a carriage service to solicit child pornography material contrary to s 474.19(1)(a)(iv) of the Criminal Code 1995 (Cth) the applicant is sentenced to a fixed term of 7 months imprisonment on commencing 23 May 2018 and expiring on 22 December 2018. (b) In respect of the charge of using a carriage service to procure a person under the age of 16 years to engage in sexual activity contrary to s 474.26(1) of the Criminal Code 1995 (Cth), the applicant is sentenced to imprisonment for 2 years commencing on 23 May 2018 and expiring on 22 May 2020. After serving 9 months he is to be subject to a recognisance release order from 23 February 2019 to 22 May 2020. (c) In respect of the charge of making an unwarranted demand with menaces contrary to s 249K(1)(a) of the Crimes Act 1990 (NSW) the applicant is sentenced to a fixed term of 7 months imprisonment commencing 23 July 2018 and expiring on 22 February 2019. (5) The applicant is to be released from custody forthwith. Catchwords: Criminal law – Offences – Sentence – Using a carriage service to solicit child pornography material – Using a carriage service to procure a person under the age of 16 years to engage in sexual activity – Making an unwarranted demand with menaces – Where applicant sent messages to the victim to procure sexual activity – Where applicant sought money from the victim in exchange for destroying photographs she had sent to him – Where the findings of the sentencing judge largely favourable to the applicant – Applicant barely 18 years of age at the time of the offending – Victim 15 years of age – Not a case of grooming – Serious mental health issues prevailing at the time of the offending – Sentence of 4 years and 4 months imprisonment with a non-parole period of 2 years manifestly excessive in the circumstances – Applicant re-sentenced Legislation Cited: Criminal Code 1995 (Cth) Crimes Act 1900 (NSW) Crimes Act 1914 (Cth) Cases Cited: Director of Public Prosecutions (Cth) v Del La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 Gifford v R [2016] NSWCCA 302; (2016) 263 A Crim R 373 Kentwell v R [2014] HCA 37; (2014) 252 CLR 601 KT v R [2008] NSWCCA 51; (2008) 182 A Crim R 571 Moore v R [2018] NSWCCA 26 R v Dodd (1991) 57 A Crim R 349 R v Gajjar [2008] VSCA 268; (2008) 192 A Crim R 76 R v Poynder [2007] NSWCCA 157; (2007) 171 A Crim R 544 Tector v R [2008] NSWCCA 151; (2008) 186 A Crim R 133 Category: Principal judgment Parties: Lachlan Clarke-Jeffries – Applicant Regina – Respondent Representation: Counsel: T Quilter - Applicant L Fernandez - Respondent