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McNiece v The Queen [2019] VSCA 78

appeal against sentence — 3 counts of using carriage service to solicit child pornography materials offences contrary to s 474.19(1), 3 counts of using carriage service to transmit indecent communication to a person under age of 16 offences contrary to s 474.27A(1), one count of procuring a child to engage in sexual activity outside of Australia offence contrary to s 272.14(1) — state offence — original sentence imposed 4 years’ and 10 months imprisonment with a 2 year and 2 month non-parole period — objective seriousness manifest excess — each case depends on nature of offending and circumstances of offender — consideration of facts of previous cases not that useful as range of offences for which law provides and ways in which those offences may be committed are so many and varied that comparison is often difficult if not meaningless — current sentencing practice is only one of the matters to be taken into account in sentencing — the sentence on the procuring a child overseas offence was manifestly excessive — no suggestion offender was seeking to procure sexual activity with himself or other adult, no inducement offered to take part in activity, no specific occasion was suggested or arranged where activity would take place, and offender did not disguise true identity or age — lower end of range of seriousness for this serious offence — while language used by offender debased and revolting, sentence of 2 years and 6 months imprisonment for encouraging 15 year old boy to engage in sexual activity with his girlfriend cannot be justified in this case — no aggravating feature of offender’s circumstances or antecedents that could justify unduly severe sentence — sentences on charges of soliciting child pornography or transmitting indecent communication were not manifestly excessive — serious offences and offending brazen and repeated — aggravating feature offender encouraging children to create child pornography not just soliciting transmission — re-sentence — will make sentence for State offence partly concurrent with sentences for Commonwealth offending, having regard to offender’s status as serious sexual offender and requirements of totality — sentence imposed 3 years’ imprisonment with a 1 year and 6 month non-parole period
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