Background
Dean Christopher Molnar pleaded guilty to possessing child abuse material obtained using a carriage service, contrary to s 474.22A(1) of the Criminal Code (Cth). Another federal offence of accessing child abuse material was taken into account. Police found more than 3,000 images, 100 videos and 120 written stories on devices at his parents’ home. The material consisted of illustrations, stories, animations and AI-generated images rather than depictions of real children, but portrayed infants through prepubescent children in graphic sexual activity.
The District Court imposed 18 months’ imprisonment, discounted from two years for Molnar’s guilty plea, to be served by an intensive correction order. The judge considered community protection would be advanced by treatment conditions in the community, although she found Molnar’s rehabilitation prospects guarded because of his limited insight and motivation. The Crown appealed, arguing that an intensive correction order was legally unavailable and that the sentence was manifestly inadequate. Molnar conceded the first error.
The Court’s Holding
The Court of Criminal Appeal held that an intensive correction order was unavailable. Under s 20AB of the Crimes Act 1914 (Cth), a state court may impose that form of sentence for a federal offence only if state law permits it in a corresponding case. Molnar’s conduct also contravened s 91H of the Crimes Act 1900 (NSW), a prescribed sexual offence for which s 67 of the Crimes (Sentencing Procedure) Act 1999 (NSW) prohibits an intensive correction order. Section 67(1)(g) therefore also barred that disposition for the federal offence because it included commission of the state offence.
Because the sentencing judge imposed a sentence unavailable at law, the court allowed the Crown appeal and quashed the sentence without deciding whether it was independently manifestly inadequate. It also declined to address the constitutional issue identified in the Crown’s Judiciary Act notice because resolving it was unnecessary.
Rather than resentence Molnar itself, the court remitted the matter to the District Court under s 12(2) of the Criminal Appeal Act 1912 (NSW). A new hearing would permit fuller examination of his evolving mental-health diagnosis, treatment, insight and progress while preserving both parties’ ordinary appeal rights.
Key Takeaways
- A New South Wales court cannot impose an intensive correction order for a federal offence unless that disposition is available under state law in a corresponding case.
- The omission of s 474.22A from the expressly listed Commonwealth offences did not make an intensive correction order available, because Molnar’s conduct also constituted the prescribed state offence under s 91H.
- An appellate court may remit a Crown sentencing appeal for a fresh hearing where that course serves justice, permits updated evidence and preserves appeal rights.
Why It Matters
The decision illustrates that sentencing courts must examine not only whether a federal offence is expressly listed in state sentencing restrictions, but also whether its commission necessarily includes a state offence subject to those restrictions. A sentence focused on rehabilitation remains invalid if the chosen sentencing option is unavailable as a matter of law.
The ruling also confirms the breadth of the New South Wales Court of Criminal Appeal’s power to remit Crown sentencing appeals. Remittal may be appropriate when a fresh, evidence-based sentencing hearing is preferable to immediate appellate resentencing.