Site Logo

Small v The Queen [2020] NSWCCA 216

appeal against sentence — using carriage service to groom a person under the age of 16 years for sexual activity offence contrary to s 474.27(1) of the Commonwealth Criminal Code, using a carriage service to solicit child exploitation material offence contrary to s 474.19(1)(a)(iv) — additional state offences — additional offence of using a carriage service to transmit child exploitation material offence contrary to s 474.19(1)(a)(iii) taken into account pursuant to s 16BA — original sentence imposed 10 years’ and 6 months imprisonment with a 7 year non-parole period — guilty plea — s 16A(2)(g) — Xiao v R error identified — there is no good reason why a quantified discount would apply for the New South Wales offences but not the Commonwealth offences, to reflect the utilitarian value of the guilty plea — at time Xiao decided, s 16A(2)(g) of the Crimes Act 1914 (Cth) required sentencing court to take into account “if the person has pleaded guilty to the charge in respect of the offence – that fact” — S 16A amended so that since 20 July 2020 s 16A(2)(g) now provides that a sentencing court must take into account “if the person has pleaded guilty to the charge in respect of the offence: (i) that fact; and (ii) the time of the plea; and (iii) the degree to which that fact and the timing of the plea resulted in any benefit to the community or any victim of or witness to the offence” — in resentencing offence, this Court should apply s 16A(2)(g) in its present form which gives effect to aspects of the utilitarian value of a guilty plea as described in Xiao v R and Bae v R — offender’s guilty pleas entered at early stage of proceeding with effect of pleas of guilty that victim and other witnesses not required to give evidence at trial — utilitarian value to offender’s guilty pleas but did not reflect remorse or contrition on their part — guilty pleas entered in face of overwhelming Crown case against offender — any allowance for pleas to be confined solely to utilitarian value of pleas — re-sentence — nature and circumstances of the offence — s 16A(2)(a) — serious examples of offences of this type — offences involved a young and vulnerable girl who was subjected to sustained and predatory criminal communications from the much older offender for the purposes of the offender’s own sexual gratification — antecedents — s 16A(2)(m) — offender had significant prior history of offences of this type for which they had been sentenced on two separate occasions to significant terms of imprisonment — offender previously sentenced for 32 months’ imprisonment with a 21 month non-parole period for 4 counts of possession of child exploitation material and 5 counts of using a carriage service to transmit child exploitation material — offender bears all hallmarks of a hardened recidivist — contrition — s 16A(2)(f) — rehabilitation — s 16A(2)(n) — offender not demonstrated genuine remorse or insight and shown little interest in custodial rehabilitation programs — appears established and apparently intractable attitude of the offender — offender presents ongoing risk to community against background of earlier offending which has not deterred them from further serious crimes of this type — sentence — imposed 10 years’ and 4 months imprisonment with a 6 year and 11 month non-parole period
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.

© 2024 The National Judicial College of Australia (NJCA). Powered by

Privacy Policy|Terms and Conditions