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Waterstone v The Queen [2020] NSWCCA 117

appeal against sentence — 4 counts of using a carriage service to offend offence contrary to s 474.17(1) of Commonwealth Criminal Code — additional State offences — original sentenced imposed 3 years’ and 1 month imprisonment — non-parole period — no non-period period considered — error established as sentencing judge did not explain why they considered an effective fixed sentence of 3 years and 1 month without release on parole and/or a recognizance was warranted in this matter — justifying such a course on the basis of length of individual sentences and fact offences were both State and Commonwealth offences did not explain why such a long sentence without parole for a sex offender assessed as having a medium to low risk of re-offending was warranted — do not consider position of offender’s counsel before sentencing judge to preclude intervention of this court, error having been established — nature and circumstances of the offence — s 16A(2)(a) — question of whether sentencing judge erred in finding regarding objective seriousness is question of whether the finding was open — not element of offence under s 474.17 that victim is a child nor that conduct is of sexual nature — this makes offender’s conduct of sending offensive texts of their penis to their stepdaughter a serious example of an offence under this section — appeal judge found no error in sentencing judge’s finding that such conduct was highly offensive — satisfied it was open to sentencing judge to make findings of objective seriousness that they did — re-sentence —— offender not shown any remorse, demonstrated audacious and arrogant attitude towards victim, offending was not isolated and spanned over number of years and victim impact statement showed profound impact of offending on victim — rehabilitation — s 16A(2)(n) — character — s 16A(2)(m) — unable to find good prospects of rehabilitation or unlikely to offend — although applicant was of previous good character, their pattern of repeat offending took place over period of time — mitigate the sentence on account of two significant assaults in custody which constitutes a degree of extra-curial punishment — imposed total effective sentence of 2 years’ and 3 months imprisonment to then by released by way of recognizance order to be of good behaviour for 11 months
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