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O’Hara v The Queen [2021] WASCA 123

Offender was sentenced following pleas of guilty to offences contrary to the Commonwealth Criminal Code, namely, 1 count of using a carriage service to do an act in preparation for engaging in sexual activity with a person under 16 years of age, contrary to s 474.25C, 5 counts of using a carriage service to transmit a communication being someone the offender believed to be under 16 with the intention of making it easier to procure the recipient to engage in sexual activity contrary to s 474.27(1), 2 count of using a carriage service to transmit communication to someone believed by offender to be under 16 which included indecent material contrary to s 474.27A(1), 6 counts of using a carriage service to transmit child pornography material contrary to s 474.19(1)(a). Original sentence imposed 4 years imprisonment with a 2 year non-parole period. Offender was sentenced for additional state offences. Offender appealed on the ground that the sentences were manifestly excessive, that the total effective sentence infringed the totality principle, and that in relation to indecent material transmission offences the wrong maximum penalty was applied.

Maximum Sentences: While there are cases where an error as to the prescribed maximum penalty was found not to be material, generally speaking, such an error will be material. The Court proceeded on the basis that the offender was to be resentenced on all offences committed, bearing in mind that sentences imposed on counts 6, 12 and 17 were ordered to be served wholly concurrently.

Totality: If one or more of the individual sentences for the offending is infected by error, the court’s jurisdiction to resentence offences beyond those infected by error would be enlivened, even if the erroneous individual sentences had been ordered to be served wholly concurrently. Sentencing judge’s error was material because it was capable of affecting the judge’s assessment of the seriousness of counts 6, 12 and 17.

Leave to appeal granted. Appeal allowed. Offender sentenced to 3 years and 6 months imprisonment with an 18 month non-parole period.
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