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Woods v R [2023] NSWCCA 37

The offender was sentenced following a plea of guilty to 1 count of using a carriage service to solicit child abuse material contrary to s 474.22(1) of the Commonwealth Criminal Code. Original sentence imposed 9 months imprisonment with immediate release under a recognizance release order. Offender appealed on the grounds that the sentencing judge erred in finding that no alternative to imprisonment was available, and that the sentence imposed was manifestly excessive.

Custodial Sentence: The sentencing judge was ‘not satisfied that a sentence other than [imprisonment] would appropriately reflect the nature of the conduct generally and the need to reflect… the harm that flows to victims of such behaviour and the need to generally denounce such conduct and to deter others from similar offending.’ Offender’s subjective case was clearly considered and found by the sentencing judge to have had a significantly mitigating effect on the sentence imposed. Offender’s submission that the sentencing judge impermissibly proceeded on the basis that a non-imprisonment alternative could never be appropriate for this type of offending is inconsistent with the remarks on sentence. The sentencing judge’s reasons for being satisfied that no sentence other than imprisonment was appropriate were based on offender’s particular offending and circumstances, and did not proceed on the basis that a non-imprisonment alternative could never be appropriate for child pornography offending. Offender’s argument that, if it is open to the sentencing judge to impose a sentence other than imprisonment then it is not open to impose a sentence of imprisonment for the purposes of s 17A are not accepted. Section 17A proceeds on the basis that a number of sentencing options may be available. The question posed for the sentencing judge by s 17A is whether they are satisfied that, out of all the sentencing options which are available or open, only a sentence of imprisonment is ‘appropriate’.

Manifest excess: Offender has been unsuccessful in establishing the specific error contended under s17A and no other patent error has been established to support indirectly the manifest excess ground. A sentence of nine months’ imprisonment for this child pornography offence (taking into account another, albeit closely related, child pornography offence) combined with a recognizance release order directing the applicant’s immediate release was not outside the range of available sentences. The sentence imposed clearly reflected that deterrence and denunciation had a lesser role to play in this particular case due to the reduced moral culpability of the applicant. The sentence itself does not bespeak some latent error or misapplication of principle.

Leave to appeal granted. Appeal dismissed.
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