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 Wagner v The Queen [2018] NSWCCA 124

appeal against sentence — using carriage service to transmit images of child abuse material offences contrary to s 474.19(1) of Commonwealth Criminal Code — state offences — original sentence for first count imposed 1 years’ and 6 months imprisonment — original sentence for second count imposed 2 years’ and 3 months imprisonment — overall original sentence imposed 2 years’ and 9 months imprisonment with 9 month recognizance release order after 2 years for Commonwealth offences — guilty plea — s 16A(2)(g) — sentencing judge stated that took into account guilty pleas but had not treated as manifesting remorse or acceptance of responsibility — no reference to discounting on account of utilitarian value of pleas — in light of clarification provided in Xiao v The Queen [2018] NSWCCA 4 can be seen that offender denied consideration of a basis of mitigation to which effect should have been given — must have applied only minimal discount in order of 10% because of restricted basis upon which considered mitigation could be allowed for guilty pleas — may be inferred that starting-point sentence for count (1) 1 year and 8 months and for count (2) 2 years and 6 months — had allowance been made for utilitarian value of pleas discount of 25% would have been appropriate — resultant sentences would have been for count (1) 1 year and 3 months and for count (2) 1 year and 10.5 months — totality — had sentencing judge taken into account all other considerations as did but allowing full discount for guilty pleas, extent of accumulation would have been to some degree reduced and overall non-parole period would accordingly have been less — date of commencement of sentence for state offence must be altered to adjust degree of accumulation and overall non-parole period — leave to appeal granted — appeal allowed — offender resentenced to 2 years’ 4 months imprisonment with 6 month recognizance release order after 1 year and 10 months
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.

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