The Crown appealed the sentence given to Mr Porte on 5 of grounds. The first was that his honour had failed to take into account matters set out in s.16A of the Crimes Act 1914 (Sentencing Procedure). In regard to this ground it was submitted that the sentencing remarks were only relevant to Mr Porte’s subjective case rather than reflecting the objective seriousness of the offence. The second ground was that the trial judge had been in error in ordering that the sentences be made concurrent. It was submitted that ordering that the sentences be served concurrently was not reflective of the criminality within Mr Porte’s offences. The third and fourth grounds of appeal were that the sentencing judge had erred in ordering the sentence be served as an intensive correction order. It was submitted that in so ordering the sentencing judge had failed to properly apply the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW). That Act provides that before an ICO may be imposed, the offender’s suitability must be examined and that the court must first consider all other alternatives to imprisonment. On appeal, this ground was upheld with the court finding that the trial judge had not appropriately followed relevant procedures. The final ground of appeal was that the sentence was manifestly inadequate which was also upheld.
In allowing the appeal, the court found that the sentencing Judge had made a number of significant errors in arriving at a sentence that was, in the opinion of the Court, manifestly inadequate. Those errors included a failure to assess the objective seriousness of the offending, a failure to explain how the sentence was arrived at, a failure to give principled consideration to the question of concurrency and accumulation, and an impermissible approach to the question of whether an ICO was appropriate. The Court set out a number of principles to be applied in sentencing for child pornography offences.
The appeal court then re-sentenced Mr Porte to a head sentence of two years and nine months imprisonment, with an effective minimum term of one year and six months. For the Mace Offence, he was convicted but no other penalty was imposed.
New South Wales Criminal Court of Appeal