The Court of Appeal’s judgment is notable for what it held in relation to the so called “principle” of double jeopardy on Crown sentence appeals. The Court accepted that the reasoning of the High Court in Bui v Director of Public Prosecutions (Cth) (2012) 284 ALR 445 applied to the relevant ACT sentencing legislation. The Court held:
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As we have already said, the High Court in Bui v Director of Public Prosecutions (Cth) said that s 16A(2) [of the relevant Commonwealth Act] did not accommodate the “principle” of double jeopardy. Moreover, the High Court said that if on re¬sentencing the court had regard to the “principle” of double jeopardy, the court would not thereby be imposing a sentence which is of a severity appropriate in all the circumstances of the offence. |
| For the same reasons, in our opinion, if this Court is to re-sentence the respondent, this Court should not have regard to the “principle” of double jeopardy, because to do so would be inconsistent with the terms of s 7(1)(a) of the [ACT] Sentencing Act, which require the Court to impose a sentence on an offender to ensure that the offender is adequately punished for the offence. If regard were had to the “principle” of double jeopardy, and the sentence was thereby reduced, it could not be said that the offender was being adequately punished. |
R v TW
TW was sentenced to a total term of imprisonment for seven years with a total non-parole period of four years and six months on his plea of guilty to three counts of committing an act of indecency upon a child, five counts of using a child for the production of child pornography, two counts of possessing child pornography, a count of using a carriage service to access child pornography, a count of using a carriage service to distribute child pornography and a count of using a carriage service to transmit child pornography. The conduct was of the gravest kind, and the children used by TW included his own son and children of people known to him.
The Director appealed against the inadequacy of the sentence. The Court of Appeal upheld the Director’s appeal, and re-sentenced TW to a total sentence of nine years and seven months with a total non-parole period of five years and six months.
R v COOPER
When police executed a search warrant on Cooper’s home in Canberra on 6 January 2010 they found an enormous volume of child pornography located on numerous computers and data storage devices, as well as a large number of printed images. The volume of images seized almost defied complete examination. However there were approximately 684,559 child pornography images and 1,061 child pornography videos in the seized material. Some of the material was of the grossest kind, being classified in category 5 in the Oliver scale, widely used to categorise such material. The material was stored in a highly organised manner, with computer disks being labelled and the material on the disks being saved into named folders.
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ANNUAL REPORT 2011-12 DIRECTOR OF PUBLIC PROSECUTIONS 29
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