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Lyons v The Queen [2019] VSCA 242

appeal against sentence — using a carriage service to access child exploitation material, and using a carriage service to transmit child exploitation material offences — additional offence of soliciting child exploitation material was taken into account pursuant to s 16BA — original sentence imposed 2 years’ and 6 months imprisonment with a recognizance release order to be of good behaviour for 4 years after serving 18 months imprisonment — nature and circumstances of offence — s 16A(2)(a) — antecedents — s 16A(2)(m) — sentencing judge made an error when they said they were sentencing offender as a serious sexual offender — unlikely sentencing judge’s error materially affected the sentence but judge unable to be satisfied that it ‘could not have materially affected’ sentence, so it becomes necessary to consider whether a different sentence should be imposed — no different sentence should be imposed as sentences imposed and cumulation ordered were appropriate to offending — serious instance of accessing child exploitation material, including considerable material in higher classification of seriousness — offender was end user in market of depravity where young children are exploited and violated — rehabilitation — s 16A(2)(n) — it would be counterproductive to now impose a sentence that would interfere with completion of offender’s sex offender program — leave to appeal granted — appeal dismissed — ancillary order recording offender had been sentenced as serious sexual offender set aside
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