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Hildebrand v The Queen [2021] NSWCCA 9

The offender was sentenced after pleading guilty to 10 counts of using a carriage service to menace or harass a person contrary to s 474.17(1) of the Commonwealth Criminal Code, 1 count of using a carriage service to solicit child pornography material contrary to s 474.19(1) of the Commonwealth Criminal Code and 14 State offences. A further 18 additional offences were taken into account under s 16BA. The original sentence imposed 20 years imprisonment with a 15 year non-parole period. The offender appealed on the basis that the sentencing judge failed to apply procedure mandated by s 16BA, erred by sentencing an overall aggregate sentence for Commonwealth and State Offences, failed to take into account accumulation of sentence as ‘special circumstance’ and erred with respect to objective criminality.   Cumulative and Concurrent Sentences: Under s 16B, Court when sentencing for a Commonwealth offence must have regard to any sentence already imposed by the Court for any other federal offence or any state offence being a sentence that the person has not served. Sentencing judge was conscious of not imposing excessive sentence after determining sum total of each individual sentence indicated. There is no requirement for sentencing judge to identify by paragraph number in s 16A the matters that are clearly taken into account in substance.     Nature and Circumstances: The challenge is to the ratio of the overall effective sentence in light of accepting limited special circumstances. Sentencing judge was mindful of the matter and expressly referred to the matter and determined that nothing less than a non-parole period of 15 years would be sufficient. That determination is justification for not reducing statutory ratio. Starting point for all indicative sentences were entirely consistent with assessment of objective seriousness. Offender coerced and deceived victims, sometimes threatening them, sometimes overbearing their wills and vitiating their consent. Starting points do not indicate any error in relation to aggregate sentences imposed for the various groups of offences. Totality: Offending took place over period of almost 10 years, with 14 different victims. From 2011 offender was a serving police officer. Planning for many of the offences was extensive. Nothing in offender’s subjective features excused or even explained offending in an exculpatory way, or in any way which modified or reduced his moral culpability. Error only demonstrated in relation to sequences which had Commonwealth offences taken into account on a Form 1 document. Offences needed to be attached to a sequence where a Commonwealth offence was the principal offence. Leave to appeal granted. Appeal allowed. Sentence quashed. Proceedings remitted to District Court for sentence.
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