Australia, April 21 -- New South Wales Land and Environment Court issued text of the following judgement on March 21:

1. PRICE AJA: I agree with Dhanji J.

2. DHANJI J: In Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, McHugh, Hayne and Callinan JJ said (at [40]), that, when sentencing for multiple offences, while it is necessary to determine an appropriate sentence for each offence, subject to any contrary legislative intention, "the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn". This seemingly simple instruction is often made more difficult by the complexities of multiple charges involving ever more specific offence provisions, and mixtures of federal and State offences with their own sentencing provisions. That was the case here.

3. The applicant, Brian Dyball, seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), out of time, against the sentence imposed upon him in the District Court of New South Wales at Port Macquarie on 15 August 2023 by her Honour Judge Payne.

4. The applicant was sentenced with respect to two federal and four State offences related to him accessing and possessing child abuse material, possessing bestiality material and possessing unauthorised firearms and prohibited weapons.

5. The following table outlines the offences for which the applicant was sentenced, their maximum penalties, their applicable standard non-parole periods ("SNPP"), and the objective seriousness and indicative and aggregate sentences as determined by the sentencing judge:

Tale omitted can be viewed at: (https://www.caselaw.nsw.gov.au/decision/195abfdb8244e9abe181a6e5)

6. Sequence 9 and sequence 12 were before the court by way of a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW).

7. The indicative sentences for the offences making up each aggregate sentence were each arrived at after the application of a 25 percent discount for the applicant's early plea of guilty pursuant to s 16A(2)(g) of the Crimes Act 1914 (Cth) and s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW).

8. As can be seen from the table, her Honour imposed two aggregate terms of imprisonment, the first for the federal offences and the second for the State offences. The two aggregate terms were 3 years, and 2 years and 9 months with a non-parole period of 1 year. The State aggregate sentence was ordered to commence 2 years into the federal aggregate sentence.

9. The total effective sentence resulting from the above sentences was a head sentence of 4 years and 9 months imprisonment with a mandatory custodial component of 3 years, commencing on 14 August 2023. The non-parole period will end on 13 August 2026 and the full-term will expire on 13 May 2028.

10. Pursuant to s 19AC(4)(b) of the Crimes Act 1914, the sentencing judge declined to make a recognizance release order for the federal offences.

11. The grounds of appeal on which the applicant seeks to rely are as follows:

Ground 1: Her Honour erred in her approach to the accumulation of the State aggregate sentence on the federal aggregate sentence.

Ground 2: The aggregate sentence imposed in relation to the four State offences is manifestly excessive.

12. Given the appeal was filed out of time, the applicant also requires an extension of time to bring this appeal. The applicant submits that the application to appeal was delayed pending this Court's decision in McGregor v R [2024] NSWCCA 200, which was handed down on 1 November 2024. The respondent, appropriately in my view, accepts that it was reasonable for the applicant to delay his application pending resolution of the issue decided by McGregor, given the result in that case was determinative of the validity of the aggregate federal sentence imposed on the applicant. The respondent also accepts that, subsequent to that decision being delivered, the applicant has acted promptly in bringing this application. I would grant leave to appeal out of time.

*Rest of the document and Footnotes can be viewed at: (https://www.caselaw.nsw.gov.au/decision/195abfdb8244e9abe181a6e5)

Disclaimer: Curated by HT Syndication.