Site Logo

Phibbs v The King [2023] VSCA 123

The offender was sentenced following pleas of guilty to 1 count of using a carriage service to make available child abuse material contrary to s 474.22(1) Commonwealth Criminal Code, and 1 count of possessing or controlling child abuse material obtained or accessed using a carriage service s 474.22A(1) of the Commonwealth Criminal Code. Original sentence imposed 15 months imprisonment to be released immediately on recognizance of $1,000 to be of good behaviour for 3 years. Offender appealed on the ground that the original sentence was manifestly excessive.

Manifest Excess: It was common ground, and the sentencing judge found, that the applicant’s offending was at the low end of the spectrum of seriousness. The sentencing judge was correct to find that the applicant’s moral culpability was ‘considerable’. However, there is no reference in the judge’s sentencing remarks to the principle of totality. Other than stating that s 19(5) of the Crimes Act contains a presumption of cumulation and that the two charges involved discrete and different offending that occurred at different times, the judge did not explain why they ordered that the two sentences be fully cumulated. The two sentences must be served concurrently because any cumulation would result in an inappropriately severe total effective sentence.

Leave to appeal granted. Appeal allowed. Offender resentenced to 6 months imprisonment to be released immediately on recognizance of $1,000 to be of good behaviour for 1 year.      
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.

© 2023 The National Judicial College of Australia (NJCA). Powered by

Privacy Policy|Terms and Conditions