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Kannis v The Queen [2020] NSWCCA 79

appeal against sentence — 2 counts of use carriage service to solicit child exploitation material offence contrary to s 474.19(1)(a)(iv) of Commonwealth Criminal Code — use carriage service to groom person under 16 years for sexual activity offence contrary to s 474.27(1) of Commonwealth Criminal Code — additional offence of use of carriage service to menace, harass or cause offence offence contrary to s 474.17(1) of Commonwealth Criminal Code taken into account pursuant to s 16BA — additional state offences — original sentence imposed 2 years’ and 6 months imprisonment with offender released after 15 months’ imprisonment upon entering into recognizance for $1000 and to be of good behaviour for 3 years — nature and circumstances of the offence — s 16A(2)(a) — antecedents — s 16A(2)(m) — mental condition — s 16A(2)(m) — offender 18 years old at time of offences with no prior criminal record however incidents of similar type occurred when he was 14 years old which gave rise to a police warning — sentencing judge found at time of offences offender immature, disturbed and young with a complex history of being bullied at school with consequential psychological harm and with self-destructive features and a pattern of serious depression — mental condition causally linked to offences — original sentencing hearing conducted upon basis overall sentence of fulltime imprisonment was appropriate sentencing outcome in this case — there are some cases where objective gravity of offence means sentence of fulltime imprisonment is inevitable, even allowing for other aspects of case including offender’s subjective circumstances, this case fell into that category — guilty plea — s 16A(2)(g) — sentencing judge allowed 25% discount for guilty plea without any elaboration — this approach was understandable given submissions made in this respect at sentencing hearing where counsel for offender and Crown agreed 25% discount was appropriate for guilty pleas — no uncertainty concerning approach adopted by sentencing judge in determining discounts for pleas of guilty in this case — common approach was adopted by reference to utilitarian value of pleas of guilty, with this approach being applicable to offences in light of common principles — sentencing judge allowed discounts of 25% for utilitarian value of guilty plea — parity — sentencing judge has used as measuring sticks for determination of a sentencing range a series of cases which are materially and significantly different from offender’s case — no explanation given by sentencing judge as to features of these cases which served to furnish a range to be applied to offender’s case — sentencing judge referenced own experience of sentencing for this type of offence with no reference made to any particular case — where limited selection of quite different cases is treated as providing sentencing range without any explanation or elaboration being given as to what features supported that conclusion, it is difficult to see how this had come about without error infecting the sentencing process — re-sentence — age — s 16A(2)(m) — specific deterrence — s 16A(2)(j) — general deterrence — s 16A(2)(ja) — offender’s youth and immaturity are significant factors on sentence and their moral culpability was reduced by the mental condition found to exist on sentence — these aspects also served to reduce significance to e given on sentence to specific and general deterrence — rehabilitation — offender’s prospects of rehabilitation and reduction of their risk of reoffending will be substantially enhanced in the public interest by an extended period of conditional liberty as part of overall sentencing outcome — sentenced to 22 months’ imprisonment with offender to be released after 11 months in accordance with ss 19AC(1) and 20(1)(b) of Commonwealth Criminal Code by way of recognizance release order of $1000 and good behaviour for 3 years
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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