Kannis v R [2020] NSWCCA 79

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kannis v R [2020] NSWCCA 79 Hearing dates: 19 March 2020 Date of orders: 24 April 2020 Decision date: 24 April 2020 Before: Johnson J at [1] N Adams J at [317] Ierace J at [318] Decision: 1. Grant leave to appeal against sentence. 2. Quash the sentences imposed upon the Applicant at the Sydney District Court on 4 June 2019. 3. In their place, sentence the Applicant as follows: (i) for the offence in Sequence 1, a fixed term of imprisonment for seven months commencing on 4 June 2019 and expiring on 3 January 2020; (ii) for the offence in Sequence 3, imprisonment for 16 months commencing on 4 June 2019 and expiring on 3 October 2020; (iii) for Sequence 4, taking into account the offence in Sequence 10 under s.16BA Crimes Act 1914 (Cth), imprisonment for 18 months commencing on 4 August 2019 and expiring on 3 February 2021; (iv) for Sequence 9, imprisonment for 18 months commencing on 4 October 2019 and expiring on 3 April 2021; (v) with respect to each of the sentences for Sequences 3, 4 and 9, direct that the Applicant be released by way of recognizance release order on 3 May 2020, after serving 11 months' imprisonment, upon the Applicant entering into a recognizance to be of good behaviour for a period of three years; (vi) a recommendation is made that the Applicant undergo psychological or psychiatric counselling as part of his recognizance; (vii) confirm the forfeiture order made on 4 June 2019 under s.23ZD Crimes Act 1914 (Cth) with respect to the Applicant's iPhone 6 seized by police on 27 March 2017. Catchwords: APPEAL - sentence - applicant pleaded guilty to child pornography and grooming offences - offences of using carriage service to solicit child pornography material contrary to s.474.19(1)(a)(iv) Criminal Code (Cth) (two offences), using carriage service to groom a person under 16 years for sexual activity contrary to s.474.27(1) Criminal Code (Cth) (one offence) and possession of child abuse material contrary to s.91H(2) Crimes Act 1900 (NSW) (one offence) - offence of using carriage service to menace, harass or cause offence contrary to s.474.17(1) Criminal Code (Cth) taken into account on sentence under s.16BA Crimes Act 1914 (Cth) - 18-year old applicant committing offences against young victims - objective gravity of offences - finding by sentencing judge that applicant's mental condition and immaturity reduced moral culpability with less weight to be given to specific deterrence and general deterrence - fulltime custodial sentence imposed with applicant to be released on recognizance release order after 15 months - alleged failure to consider whether alternative to fulltime imprisonment was available for Commonwealth offences - error not demonstrated - alleged failure to give any weight to utilitarian value of guilty pleas for Commonwealth offences - error not demonstrated - alleged erroneous reliance upon other sentencing decisions to identify sentencing range in manner which failed to give effect to findings favourable to applicant - error established - other sentencing decisions dissimilar to applicant's case in significant respects - other sentencing decisions did not identify sentencing range - principles to be applied in use of other sentencing decisions on sentence - resentencing of applicant under s.6(3) Criminal Appeal Act 1912 (NSW) - objective gravity of offences - harm done to child victims of cybersex offences - offences involved real victims and not police officer posing as a child - applicant manipulated, threatened and humiliated victims - troubled and immature 18-year old offender - applicant's moral culpability reduced and lesser role for specific and general deterrence - fulltime custodial sentence nevertheless appropriate - applicant resentenced to imprisonment to be released after 11 months on recognizance release order Legislation Cited: Crimes Act 1914 (Cth) Criminal Code (Cth) Children (Criminal Proceedings) Act 1987 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) District Court Rules 1973 (NSW) Crimes Act 1958 (Vic) Cases Cited: Adamson v R (2015) 47 VR 268; [2015] VSCA 194 Bae v R [2020] NSWCCA 35 Cooper v R [2012] VSCA 32 Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Director of Public Prosecutions (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428; [2017] HCA 41 Director of Public Prosecutions v SJK and GAS [2002] VSCA 131 Douar v R (2005) 159 A Crim R 154; [2005] NSWCCA 455 Fedele v R (2015) 257 A Crim 78; [2015] NSWCCA 286 Ghalbouni v R [2020] NSWCCA 21 Gilshenan v R [2019] NSWCCA 313 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Martin v R [2019] NSWCCA 197 Meadows v R [2017] VSCA 290 Minehan v R (2010) 201 A Crim R 243; [2010] NSWCCA 140 Puhakka v R [2009] NSWCCA 290 R v Asplund (2010) 216 A Crim R 48; [2010] NSWCCA 316 R v Borkowski (2009) 195 A Crim R; [2009] NSWCCA 102 R v Costello [2011] QCA 39 R v Dinh (2010) 199 A Crim R 573; [2010] NSWCCA 74 R v Engeln [2014] QCA 313 R v Fuller [2010] NSWCCA 192 R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56 R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370 R v McGrath (2006) 2 Qd R 58; [2005] QCA 463 R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174 R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 Rampley v R [2010] NSWCCA 293 The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 Veen v The Queen (No. 2) (1988) 164 CLR 465; [1988] HCA 14 Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 Yildiz v R [2020] NSWCCA 69 Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 Texts Cited: --- Category: Principal judgment Parties: Orion Kristopher Kannis (Applicant) Regina (Respondent) Representation: Counsel: Mr KD Ginges (Applicant) Mr LA Fernandez (Respondent)