Criminal law - Application for leave to appeal against conviction - Accessing and transmitting child pornography using a carriage service - Whether verdict unreasonable - Whether trial judge erred in failing to direct jury as to control

Criminal law - Application for leave to appeal against sentence - Accessing and transmitting child pornography using a carriage service - Total effective sentence of 3 years 9 months' imprisonment

Appellant resentenced to a total effective sentence of 2 years 9 months' imprisonment, with release on recognisance after 22 months

Bibovic v The State of Western Australia [2016] WASCA 22

Burrell v The Queen [2013] VSCA 146

Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152

Chamberlain v The Queen [No 2] [1983] HCA 13; (1984) 153 CLR 514

Director of Public Prosecutions (Vic) v Guest [2014] VSCA 29

Director of Public Prosecutions v D'Allesandro [2010] VSCA 60; (2010) 26 VR 477

EAGD v The State of Western Australia [No 2] [2014] WASCA 68

Godfrey v The Queen [2013] WASCA 247

Heathcote (a pseudonym) v The Queen [2014] VSCA 37

Lam v The Queen [2014] WASCA 114; (2014) 241 A Crim R 562

Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

Mansell v The State of Western Australia [No 6] [2013] WASCA 120

Minehan v The Queen [2010] NSWCCA 140; (2010) 201 A Crim R 243

Naysmith v The Queen [2013] WASCA 32

R v Baden-Clay [2016] HCA 35

R v De Leeuw [2015] NSWCCA 183

R v Hayes [2012] SASCFC 96

R v Hogan [2015] SASCFC 12

R v Lee [2013] WASCA 216

R v Martin [2014] NSWCCA 283; (2014) 246 A Crim R 477

R v O'Connor [2012] SASCFC 15

R v Pham [2015] HCA 39; (2015) 90 ALJR 13

Rivo v The Queen [2012] VSCA 117

Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573

SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400

Smit v The State of Western Australia [2011] WASCA 124

Taylor v The Queen [2015] TASCCA 7

1 The appellant was convicted after trial of seven offences, against s 474.19 of the Criminal Code (Cth), of using a carriage service to access or transmit child pornography. It was alleged that the appellant engaged in email communication with persons holding themselves out as fathers of very young children who were willing to trade in child pornography by swapping images. The only live issue at trial was whether the appellant was the person who sent or received the offending emails. He was convicted and sentenced to a total effective sentence of 3 years 9 months' imprisonment with a non-parole period of 2 years 6 months.

2 The appellant appeals against his conviction and sentence.

3 The appellant alleges that each of his convictions should be set aside because, having regard to the evidence, the verdicts on which they are based are unreasonable and cannot be supported. The appellant also complains that the trial judge failed to direct the jury that they must be satisfied that he exercised control of the impugned material.

4 These grounds of appeal against conviction must be dismissed. When the evidence led at trial was considered as a whole, the jury could properly be satisfied that the only rational inference to be drawn from the primary facts established by the evidence was that the appellant used a computer to access or transmit each of the emails which were the subject of the indictment. Further, the direction as to control which the appellant seeks was neither required nor warranted.

5 The appellant also appeals against the sentences on totality and manifest excess grounds. We are satisfied that the individual sentences of 3 years' imprisonment for each of counts 5 and 7 were manifestly excessive, and could not be justified by the objective seriousness of the offending conduct which was the subject of those counts. We would reduce the sentences for those counts to 10 months' imprisonment each. We would resentence the appellant to a total effective sentence for all seven offences of 2 years 9 months' imprisonment, with release on recognisance after serving 22 months of the sentences.

6 The appellant was charged with seven offences of using a carriage service to either access or transmit child pornography material. Those charges alleged offences against s 474.19 of the Criminal Code, which provides:

(i) accesses material; or

(ii) causes material to be transmitted to himself or herself; or

(iii) transmits, makes available, publishes, distributes, advertises or promotes material; or

(iv) solicits material; and

(aa) the person does so using a carriage service; and

(b) the material is child pornography material.

(2) To avoid doubt, the following are the fault elements for the physical elements of an offence against subsection (1):

(a) intention is the fault element for the conduct referred to in paragraph (1)(a);

(b) recklessness is the fault element for the circumstances referred to in paragraph (1)(b).

(2A) Absolute liability applies to paragraph (1)(aa).

(3) As well as the general defences provided for in Part 2.3, defences are provided for under section 474.21 in relation to this section.

7 The prosecution case at trial was that the appellant used computer equipment to send or receive emails to and from other specified email accounts, with attached images which constituted child pornography. The Crown alleged that the emails were sent and received using two email accounts, pissbeck@gmail.com (the pissbeck account) and janlove11@outlook.com (the janlove account), which the appellant registered under false names. Seven emails with attachments were particularised as the subject of the counts in the indictment.

8 In relation to each count on the indictment, the appellant formally admitted that:

• the user of the pissbeck or janlove account (as applicable) sent or accessed (as applicable) images by email to or from another specified email account;
• the images constituted child pornography; and
• the person who accessed or transmitted the images would have been aware that the images constituted child pornography.

It was also uncontentious at trial that the sending of emails using the Dodo internet service involved the use of the carriage service.

9 As a result, it was uncontentious at trial, and on appeal, that the person who sent and received the emails which were the subject of the indictment intentionally used a carriage service to transmit or access material constituting child pornography. The only live issue at trial was identity: whether the Crown had proven that appellant was the person who sent or received each of the emails which were the subject of the counts on the indictment.

10 There was no direct evidence that the appellant was the person who sent or received any of the emails. Computer equipment used to send and receive the emails, or store the images attached to the emails, was not found in the appellant's possession or at all. The Crown's case was circumstantial, and was principally based on evidence connecting the appellant with the pissbeck and janlove accounts and the internet services used to register and access those email accounts. The Crown contended, and the appellant denied, that the only rational inference which could be drawn from the facts established by the evidence was that the appellant was the person who sent and received the emails.

Conviction appeal ground 1: unreasonable verdict

All of the verdicts of guilty were unreasonable and should be set aside because, having regard to the evidence, they are unreasonable or cannot support to the requisite standard the element of identity;

Particulars

1.1 For each charge there were competing inferences, reasonably capable of acceptance by the jury, consistent with innocence.

12 The application for leave to appeal on ground 1 was referred to the hearing of the appeal.

13 Section 30(3)(a) of the Criminal Appeals Act 2004 (WA) requires this court to allow this appeal if, in its opinion, the verdict of guilty on which a conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported.

14 The conclusion that a verdict is unreasonable, having regard to the evidence, is not materially different to the conclusion that the verdict was unsafe or unsatisfactory.

15 In considering this ground, it is necessary for this court to decide whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. In answering that question the court must not disregard or discount the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence. The court must not disregard or discount the consideration that the jury had the benefit of having seen and heard the witnesses.[1] As the majority noted in M v The Queen:

In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (494 - 495). (footnotes omitted)

16 This court must make its own independent assessment of the sufficiency and quality of the evidence, and determine whether, notwithstanding that there is evidence upon which a jury might convict, nevertheless it would be dangerous in the circumstances to permit the verdict to stand.[2]

17 The question for this court is whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt.[3]

Circumstantial prosecution case: general principles

18 The principles concerning prosecution cases that turn on circumstantial evidence are also well settled. The following relevant principles were recently summarised by the High Court in R v Baden-Clay:[4]

1. When the case against an accused person rests substantially upon circumstantial evidence, the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.
2. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his or her guilt should be a rational inference but that it should be the only rational inference that the circumstances would enable them to draw.
3. For an inference to be reasonable, it must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding an accused guilty if the inference of guilt is the only inference open to a reasonable person upon a consideration of all the facts in evidence.
4. In considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.

19 The nature of the requirement to look at the evidence as a whole was explained by Gibbs CJ and Mason J in Chamberlain v The Queen [No 2]:[5]

[T]he jury should decide whether they accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence, and ... they can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference.

20 In Baden-Clay, the High Court distinguished between the drawing of inferences from facts proved by the evidence and mere speculation or conjecture. The court cited with evident approval the following passage from the speech of Lord Wright in Caswell v Powell Duffryn Associated Collieries Ltd:[6]

There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.

21 Where an intermediate fact constitutes an indispensable step upon the way to an inference of guilt, that fact must be proved beyond reasonable doubt if the ultimate inference of guilt is to be the only reasonable hypothesis left open by the evidence. Otherwise, it is not necessary for each of the individual facts or pieces of evidence from which an inference of guilt is drawn to be proven beyond reasonable doubt.[7]

22 In light of the above principles and the issues in controversy at trial, the critical issue for this court in deciding ground 1 is whether, in relation to each count on the indictment, the jury could properly be satisfied beyond reasonable doubt that the only rational inference which could be drawn from the primary facts established by the evidence was that the appellant used a computer to access or transmit the email which was the subject of the relevant count.

23 In this appeal, it was uncontroversial that the evidence led and admissions made at trial established the following primary facts.

24 At trial, technical evidence was led about the manner in which the computer equipment used to access the relevant email accounts could be traced using IP addresses, IMEI (or International Mobile Equipment Identifier[8]) numbers and SIM card numbers. Because the conclusions of that analysis were not contentious in this appeal, it is unnecessary to describe that evidence in these reasons. The following section of these reasons is generally confined to setting out the uncontroversial outcome of that analysis.

25 The appellant was born in February 1969 and uses the names Graham Gavin Kenworthy and Graham Gavin Coatz. At all material times he owned and resided in a home in South Bunbury, and was the licensee of the Hungry Hollow Tavern located at 135 Ocean Drive, South Bunbury. He has one daughter to a former partner who, at the time of the offences, was 6 - 7 years old. He was the director of a company which had a registered address at his mother's residence in Halls Head, where the appellant had previously resided.[9]

26 The appellant's residence was located one street back and about 50 m from 173 Ocean Drive, Bunbury (the address given by the subscriber to the 524 service described below).[10]

27 The appellant's only prior convictions were driving offences and resisting arrest in 1988, when he was 19 years of age.[11]

28 The appellant did not travel to New Zealand in 2013.[12]

29 A number of the electronic communications of relevance in this case were made by computers connected to the internet using a broadband service provided by Dodo Services Pty Ltd.[13] The connections were made using a SIM card which was sold with a wireless modem, or 'dongle', with slots for a SIM card and an SD data storage card. When plugged into a computer and containing a Dodo SIM card, a dongle can connect to Dodo's wireless internet service. The Dodo SIM card may also be inserted into another device, such as a smartphone, to provide an internet connection.[14]

Subscription to the 478 service on 22 January 2009

30 On 22 January 2009, a person subscribed to Dodo's broadband internet service and was assigned the service number 0466032478. We shall refer to this Dodo subscriber account as the 478 service.

31 The person who subscribed to the 478 service on 22 January 2009 provided the following relevant details to the internet service provider:[15]

Access Username: maxwells99

Subscriber Name: MR Graham Worth

32 The person subscribing to the 478 service gave a birthdate in February 1970 which was exactly one year later than the appellant's birthdate in February 1969. The person provided an address in Mandurah which was in the same street as the appellant's mother's residence. The street number was given as 16 rather than 60, which was the appellant's mother's house number.[16]

Establishment of the pissbeck account on 14 April 2012

33 On 14 April 2012, the pissbeck account was registered with Google by a person connected to the internet by the 478 service. The name provided by the subscriber was 'b hunt'.

Subscription to the 734 service on 28 October 2012

34 On 28 October 2012, a person subscribed to Dodo's broadband internet service and was assigned the service number 0466052734. We shall refer to this Dodo subscriber account as the 734 service.

35 The person who subscribed to the 734 service on 28 October 2012 provided the following relevant details to the internet service provider:[17]

Access Username: will1212

Subscriber Name: MR will hunt

Date of Birth: 02/01/1988

Contact Mobile: 0417724777

Current Address: 145 ocen BCH, bunbruy, WA, 6230

Email Address: pissbeck69@gmail.com

36 On 13 March 2013, the email address 'pissbeck11@gmail.com' was registered with Google (pissbeck11 account) by a person using a computer connected to the internet by the 734 service.

37 The emails which were the subject of the indictment were all transmitted or accessed by the operator of the pissbeck or janlove accounts using a computer connected to the internet by a SIM card sold with a prepaid Dodo broadband internet package. The SIM card used to send the emails was assigned the service number 0481048524. We shall refer to this Dodo subscriber account as the 524 service.

38 The 524 service was sold with a modem, or dongle, with a specified IMEI number, and a SIM card with a specified SIM number.[18]

39 The person who subscribed to the 524 service, which was activated on 7 May 2013, provided the following relevant details to Dodo:[19]

Access Username: will1515

Subscriber Name: MR graham rorth [sic]

Date of Birth: 01/04/1988

Current Address: 173 ocean DR, BUNBURY, WA, 6230

Contact Mobile: 0419984441

40 The 524 service was 'recharged' with four 15 GB prepaid cards which were first used to log onto the internet on 7 June 2013, 25 July 2013, 20 September 2013 and 7 December 2013 respectively.[20]

41 Evidence was led, without objection, that the prepaid card which was first used on 7 June 2013 was purchased at a BP Service Station in New Zealand on 3 August 2013.[21] Some error must be involved in this evidence, which shows that the prepaid card was purchased after it was first used. The jury picked up on this inconsistency in a question posed to the trial judge.[22]

42 The prepaid cards first used on 25 July 2013 and 20 September 2013 were purchased at Dick Smith Bunbury on 25 July 2013 and 22 August 2013 respectively. The prepaid card first used on 7 December 2013 was purchased at Officeworks Bunbury on 29 November 2013.[23]

Accessing and transmitting child pornography using the pissbeck account: 3 September 2013 and 13 October 2013

43 The following emails containing child pornography were sent or received by a computer connected to the internet using the 524 service.[24]

Correspondence with Account A on 3 September 2013 (counts 1 and 2)

44 Between 3 and 7 September 2013, the user of the pissbeck account corresponded with an email account operated from the United States[25] (Account A) about trading pornographic images of very young children.[26] A number of images were sent and received by the user of the pissbeck account.

45 Account A was used to send an email to the pissbeck account on 3 September 2013 at 1.19 pm, attaching 15 child pornography images. Accessing this email was the subject of count 1 on the indictment.

46 The pissbeck account was used to send an email to Account A on 3 September 2013 at 1.30 pm, attaching two child pornography images.[27] Transmitting this email was the subject of count 2 on the indictment.

47 In these emails, the operator of the pissbeck account was designated 'b hunt'.

48 A message from the operator of the pissbeck account dated 12.38 pm on 3 September 2013 misspelt the word 'they' in the text:

thay so good

like all new for the taking

Correspondence with Account B on 13 October 2013 (count 3)

49 Between 10 and 14 October 2013, the pissbeck account was used to send and receive emails to and from an email account (Account B) controlled by an undercover police operative in Queensland. The emails discussed 'trade in youngins', and image attachments were exchanged.

50 The pissbeck account was used to send an email to Account B on 13 October 2013 at 2.29 am, attaching two child pornography images.[28] Transmitting this email was the subject of count 3 on the indictment.

51 In these emails the operator of the pissbeck account was designated 'b hunt', and indicated that he had children aged 6 or 7 and 11 whose pictures he was willing to share.

Establishment of the janlove account on 24 October 2013

52 On 24 October 2013, the janlove account was registered with Microsoft by a person using a computer connected to the internet by the 524 service. The email address was registered under the name 'jan love' with an Australian time zone and a 'zip' of 6230 (which is the postcode for Bunbury).[29]

Accessing and transmitting child pornography using the janlove account: 24, 26 and 28 October 2013

53 The following emails containing child pornography were sent or received by a computer connected to the internet using the 524 service.

Correspondence with Account C on 24 October 2013 (count 4)

54 Between 24 October 2013 and 15 November 2013, the janlove account was used to send emails to and receive emails from an email account (Account C) controlled by an undercover police operative in the United States. The emails discussed trade in pornographic images of the users' children.

55 The janlove account was used to send an email to Account C on 24 October 2013 at 3.30 pm, attaching one image of child pornography.[30] Transmitting this email was the subject of count 4 on the indictment. Other images of child pornography were sent on 24 and 25 October 2015.

56 In the emails the operator of the janlove account indicated that he was 40 and lived in North Philadelphia in the United States, with a 6-year-old daughter.

57 One of the images sent by the janlove account was taken using a Samsung mobile phone.[31]

Correspondence with Account D on 26 and 28 October 2013 (counts 5 and 6)

58 Between 26 and 30 October 2013 the janlove account was used to send emails to and receive emails from an account (Account D).[32] The discussion concerned trade in images of child pornography, particularly the users' daughters, and a large number of images were exchanged.

59 Account D was used to send an email to the janlove account on 26 October 2013 at 11.20 am, attaching six child pornography images. Accessing this email was the subject of count 5 on the indictment.

60 The janlove account was used to send an email to Account D on 28 October 2013 at 6.28 am, attaching an unidentified number of child pornography images. Transmitting this email was the subject of count 6 on the indictment.

61 The users of the janlove account and Account D claimed to be fathers of young daughters. The user of the janlove account claimed to be the father of two daughters aged 8 and 2 years.

62 An email sent by the operator of the janlove account on 28 October 2013 at 4.15 am misspelt the word 'they' in the text:

63 The emails between the janlove account and Account D were detected when the janlove account was accessed by officers of the United States Federal Bureau of Investigation.

Email between pissbeck and janlove accounts on 31 October 2013 (count 7)

64 On 31 October 2013, the janlove account was used to send an email containing a large number of attachments constituting child pornography to the pissbeck account. The .rar file containing those images had previously been sent by the user of Account D to the janlove account.

65 Police executed a telephone interception warrant in relation to the 524 service and intercepted a number of data packets sent over the 524 service by a computer with an account name 'Bill-PC' between 10 and 19 December 2013.[33] Dodo records showed that the 524 service was regularly used between 11 and 18 December 2013.[34]

Search of the appellant's premises on 20 December 2013

66 On 20 December 2013, police executed a search warrant at the appellant's residence, vehicle, the office area and a storage area of the Hungry Hollow Tavern and the Australind Tavern.

67 Police entered the residence, at which the appellant alone resided and was present, at about 9.15 am on 20 December 2013.[35] At the house police located an old-style silver Nokia mobile telephone.[36] On the telephone was a text message from a sender designated as 'POPET' which read:[37]

68 There was no evidence as to the identity of the sender of this message or the time at which the message was sent.

69 Also located at the residence were an Acer Aspire E1531 laptop computer and a memory card.[38] Forensic examination of those devices did not locate any child pornography or any indications that the computer had been used to access the pissbeck or janlove accounts.[39] Remnant data associated with those email accounts would be expected to be located if the computer had been used to access the email accounts by a web browser or email client.[40]

70 Two unused and unopened Dodo broadband internet packages[41] and two USB thumb drives were located in the appellant's vehicle. The packages were not associated with the 478, 734 or 524 services.

71 Police subsequently obtained a receipt indicating that one of the modems found in the appellant's car had been purchased at Dick Smith Electronics in Bunbury on 28 April 2013 in the name of Graham Coates of 135 Ocean Drive, Bunbury.[42]

72 Police attended the Hungry Hollow tavern to execute a search warrant in the afternoon of 20 December 2013.[43] At the office of the Hungry Hollow Tavern, police located the following items of particular interest:

1. two Dodo broadband modems;[44]
2. a 2007 diary;[45]
3. a blue 2010 Collins diary;[46]
4. a handwritten note on a loose page of paper found inside the 2010 diary, between the pages for the week beginning 4 October 2010 and ending on 10 October 2010;[47] and
5. an Acer Aspire 4752 laptop computer and an Acer Aspire 5920 laptop computer, both located in the office of the tavern.[48]

73 In the office of the tavern, the appellant directed police to a bag containing two Dodo modems which had IMEI numbers different to the dongle sold with the 524 service,[49] and SIM cards different to that associated with the 524 service. One was a Huawei branded device and the other was an Alcatel branded device.[50]

74 The 2007 diary contained a handwritten entry on 23 December 2007 in which the word 'they' was misspelt 'thay' on two occasions.

75 During the search of the tavern office, the appellant acknowledged that the 2010 diary was his, and that certain writing in the diary was or was 'more than likely' his. He acknowledged that the entry in the page for the week ending 26 December 2010 was his.

76 A handwritten entry in the diary for the appellant's birthday in February 2010 was:

77 The 2011 forward planning page of the 2010 diary contained the following handwritten entry:

78 The handwritten note was on a page of paper on which the appellant's fingerprint was located, just below the writing '173'.[51]

GRAHAM RORTH

1/4/98

WILL 15 15

15 Ef 1313

PBECK15

DR 4412800

0419984441

173

80 During the search of the tavern office, the appellant was asked whether the handwriting on the note was his. He replied that he was not sure.

81 An Australian Federal Police document examination expert compared the handwriting on the handwritten note with handwriting in the 2010 diary which the appellant acknowledged to be his. The diary contained a sufficient sample of handwriting to identify the characteristics of the maker of the handwriting in the diary. Similarities were observed between the entries in the handwritten note and the 2010 diary. However, the sample of handwriting on the handwritten note was insufficient to allow any conclusions to be drawn as to whether the appellant was, or was not, the author of the handwritten note.[52]

82 The Acer Aspire 4752 computer was examined and no child pornography or any indications that the computer had been used to access the pissbeck or janlove accounts were found.[53]

83 The Acer Aspire 5920 computer located in the office of the tavern was identified in the Windows system files as 'Bill-PC'.[54]

84 Registry information on the computer's operating system showed it to have assigned an E drive and an H drive to an Alcatel external storage device, and a G drive to a Huawei external storage device, at some stage.[55]

85 The user account on the Acer Aspire 5920 computer was named 'bill',[56] and the login password for that user account was 'ef1313'.[57]

86 Dodo mobile broadband software was installed on the Acer Aspire 5920 computer and it had been used.[58]

87 Various documents and computer information having an obvious connection to the appellant were located on the Acer Aspire 5920 computer.[59]

88 The Acer Aspire 5920 computer had been used to store child pornography, which had been deleted prior to the search on 20 December 2013.[60] It had also been used to access a video file called 'st.petersberg12yo.mpeg.rar' via the G drive on 27 January 2013 and 20 May 2013.[61] The internet history on the Acer Aspire 5920 computer did not have any links to the pissbeck or janlove accounts or links associated with child pornography.[62] The computer contained a 'cookie' showing that a Google search was made for 'Cyber-Lolita VBS' on 4 July 2008.[63] The computer registry showed that the computer had been used to save files, usually associated with saving a web page, on an E drive with titles including 'pedo' and suggestive of child pornography.[64]

89 During the searches, police did not locate the dongle or SIM card associated with the 524 service, any computer or storage device containing the images sent or received in the emails, or any computer used to access the pissbeck or janlove accounts. None of that material was ever located.[65]

90 No Samsung telephones were located during the searches conducted on 20 December 2013.[66] Nor were any Huawei or Alcatel external devices, other than the Dodo dongles,[67] located during the search.[68]

91 During the course of the execution of search warrants on 20 December 2013, the appellant admitted ownership of the computer equipment located in the searches and the 2007 and 2010 diaries. He admitted that certain writing in the diaries was his or 'more than likely' his, but said that he was not sure if the writing on the handwritten note was his. He denied accessing or transmitting child pornography, and denied knowing anything about the janlove or pissbeck accounts.

92 The 524 service was not used after the arrest of the appellant and the search of premises on 20 December 2013.

Persons associated with false details denied involvement

93 Statements were read by consent from persons associated with various details used in subscribing for the 524 service that they had nothing to do with the 524 service.

Disposition of ground 1 (unreasonable verdict)

94 For the following reasons, the primary facts summarised above establish that the only reasonable inference to be drawn is that the appellant transmitted and accessed the emails which were the subject of the counts on the indictment.

95 The evidence gives rise to a compelling inference that the appellant registered the 478, 734 and 524 services, and the pissbeck, pissbeck11 and janlove accounts, using false details which were, in many cases, similar to his own. The connections giving rise to that inference are set out below. The jury were entitled to be satisfied beyond reasonable doubt that the only rational inference which could be drawn from the primary facts was that the person who surreptitiously registered the email accounts used them to send and receive the emails.

Connection between the appellant and the handwritten note

96 The writing on the handwritten note was similar to the appellant's handwritten notes in his 2010 and 2007 diaries. The handwritten note was contained in the appellant's 2010 diary. The name 'GRAHAM RORTH' bears an obvious similarity to Graham Kenworthy. The text 'ef1313', written on the handwritten note, was the login password for the appellant's Acer Aspire 5920 laptop computer, and was also an entry in the 2010 diary for the appellant's birthday in February 2010. The appellant's fingerprint was located on the handwritten note.

Connection between the appellant and the 478 service

97 The access username for the 478 service - maxwells99 - was also noted on the entry in the 2010 diary for the appellant's birthday in February 2010 and the 2011 forward planner in that diary. The birthdate provided by the subscriber to the 478 service was one year later than the appellant's birthdate. The address provided by the subscriber was in the same street as the appellant's mother's house, with the number given as 16 rather than 60.

Connection between the appellant and the pissbeck account

98 A computer using the 478 service, which was connected with the appellant in the manner described above, was used to register the pissbeck account. The notation 'PBECK 15' was made on the handwritten note, to which the appellant was connected in the manner described above. The pissbeck account was accessed by a computer connected to the internet using the 524 service, to which the appellant was connected in the manner described below. The person using the pissbeck account misspelt 'they' as 'thay', as did the appellant on two occasions in the 2007 diary.

99 The pissbeck account was also connected to the pissbeck11 account in the use of a similar account name and the equivalent user names 'b hunt' and 'will hunt'. The pissbeck11 account was connected to the appellant in the manner described below. There is also a similarity between the name put forward by the subscriber for the pissbeck account (b for 'bill', a diminutive of William), the appellant's account name for the Acer Aspire 5920 laptop computer ('bill' and 'Bill-PC') and the account name of the computer detected using the 524 service on 10 - 19 December 2013 ('Bill-PC').

Connection between the appellant and the 734 service

100 The access username provided by the subscriber to the 734 service - 'will1212' - was similar to the notation 'WILL 15 15' on the handwritten note, which was connected to the appellant in the manner described above. The subscriber name - 'will hunt' - resembled 'b hunt', the subscriber name for the pissbeck account which was connected to the appellant in the manner described above. The subscriber's address for the 734 service was '145 ocen BCH, bunbruy', compared to the address of the Hungry Hollow Tavern (at which the appellant worked and of which he was licensee) of 135 Ocean Beach Drive, Bunbury.

Connection between the appellant and the pissbeck11 account

101 The 734 service, connected with the appellant in the manner described above, was used to register the pissbeck11 account.

Connection between the appellant and the 524 service

102 The account user name (will1515), subscriber name (graham rorth), subscriber's date of birth (01/04/1988) and telephone number (0419984441) were all noted on the handwritten note, which is connected to the appellant in the manner described above. The name 'graham rorth' is similar to Graham Kenworthy. The subscriber's residential address (173 ocean DR, BUNBURY) is similar to the address of the Hungry Hollow Tavern (135 Ocean Beach Drive, Bunbury), and was located within 50 m of the appellant's home. The subscriber's different street number - 173 - is recorded on the handwritten note. The 524 service was used to access the pissbeck account, which was connected to the appellant in the manner described above. The 524 service was not used after the appellant's arrest.

Connection between the appellant and the janlove account

103 The janlove account was established using a computer connected to the internet by the 524 service, connected with the appellant in the manner described above. The person who registered the janlove account gave a Bunbury postcode. The person using the janlove account misspelt 'they' as 'thay' in the same manner as the appellant had on two occasions in his 2007 diary.

Use of the Acer Aspire 5920 computer to access child pornography

104 It was relevant that the Acer Aspire 5920 computer, which only had the appellant's account 'bill' with password protection established, had been used to store child pornography, and had made a Google search and had other features suggestive of child pornography. This was evidence suggesting that the appellant had an interest in child pornography.

Compelling inference that the appellant subscribed to the Dodo services and registered and used the email accounts

105 Considered in isolation, none of the primary facts referred to above are capable of proving beyond reasonable doubt that the appellant transmitted and accessed the emails the subject of the indictment. However, when the facts are considered in combination, they establish that the only reasonable inference to be drawn is that a single person subscribed to the 478, 734 and 524 services, and registered and used the pissbeck and janlove accounts, to send and receive emails containing child pornography. Obviously, the person who did so tried to conceal their true personal details.

106 The connections between the appellant and details used to subscribe to the internet devices and email accounts, described in detail above, compel the conclusion, beyond reasonable doubt, that the only reasonable inference to be drawn from the primary facts is that it was the appellant who was the person who subscribed to the internet services, and registered and used the pissbeck and janlove accounts to transmit and access the emails containing child pornography. The appellant did so using details which were similar to his (and so were easier to remember) or which he wrote down in his diary and the handwritten note.

107 Counsel for the appellant advanced two hypotheses allegedly consistent with the appellant's innocence, which he contended the evidence did not exclude beyond reasonable doubt.

108 The first hypothesis was that a person, either at the tavern or with access to the tavern or known as an associate to the appellant, accessed the computers or used the computers to subscribe to the services and register the accounts, and left the handwritten note in the appellant's diary. On this hypothesis, the offender did not deliberately set out to make it appear that the appellant was the user but, through a series of unfortunate coincidences, used personal details which suggested that the appellant was the user.

109 The jury could easily reject this hypothesis as unreasonable. The connections with the appellant are so many and varied that the idea of a series of so many unfortunate coincidences can be fairly regarded as absurd.

110 The second hypothesis which counsel for the appellant advanced was that a person other than the appellant, but in some way connected with the appellant, sent and received the emails and deliberately made it appear as if the appellant did so. That is, it was postulated that the appellant had been 'set up' by an unknown third person.

111 The only evidence to which counsel could point as giving rise to that inference was the text message on the appellant's phone sent by a person who, and at a time which, the evidence did not identify. The message threatened to accuse the appellant of being a paedophile if the appellant tried 'it'. There was no evidence as to what 'it' might have been. The message did not threaten to falsely accuse the appellant of being a paedophile.

112 The 'set up' which the appellant postulated did not involve any accusation being made that the appellant was a paedophile or any allegation being made against the appellant at all. The personal details used to subscribe to the Dodo services and register the email accounts were not entirely effective disguises. Once the appellant was suspected of sending and receiving the emails, and his residence and workplace had been searched, the various connections described above give rise to a strong inference that he was the user of the pissbeck and janlove accounts. However, those personal details were not such as to direct police attention toward the appellant at a point when he was not a suspect. (We note that there is no evidence as to how the investigation came to focus on the appellant). The jury could reasonably have considered that a person seeking to surreptitiously and falsely accuse the appellant would plant evidence that would direct attention to him at a time when he was not known to police. The jury could also have reasonably considered that a person intending to clandestinely set up the appellant would not have sent the appellant a text message announcing his or her intention to accuse the appellant of paedophilia.

113 If there was a plot by a third person to deliberately set up the appellant and falsely accuse him of dealing in child pornography, it was breathtaking in its perseverance and sophistication. Any such plan would have been carried out over five years, from January 2009, when the 478 service was established, to December 2013, when the 524 service was used up to the appellant's arrest. It involved planting incriminating evidence, particularly the handwritten note with the appellant's fingerprint on it and the apparent connections with child pornography on the Acer Aspire 5920 computer. The details used were such as to establish the complex series of connections with the appellant described above.

114 Further, there was no evidence which suggested the existence of any person with access to the appellant's personal details and office who may either have set out to falsely accuse the appellant or have used details suggestive of a connection with the appellant to divert attention from his or her own use of child pornography. In the end, the suggestion of a set up was based on conjecture and speculation, and it was open to the jury to reject the hypothesis as an inference which could not reasonably or rationally be drawn from the primary facts established by the evidence.

115 At trial the appellant's counsel advanced a number of arguments against the State's case. Those arguments were, in summary:

1. The voucher purchased at the BP Service Station in New Zealand, used to recharge the 524 service, was not purchased by the appellant, who did not travel to New Zealand.
2. The dongle and the SIM card for the 524 service were not found during the search, despite numerous logins in the period leading up to and including 18 December 2013.
3. No evidence of the pissbeck or janlove accounts being used, or the emails and images the subject of the charges being transmitted or accessed, was found on any computer equipment linked to the appellant.
4. A threat was made to the appellant on his mobile phone by someone who obviously knew him well.
5. The appellant's personal information did not match that contained within the emails.
6. The child pornography on the Acer Aspire 5920 computer had to come from an external device, none of which was found or linked to the appellant.
7. The various subscription and registration details for the Dodo services and email accounts are too obviously close to the appellant's details. If the appellant's purpose was to access child pornography, he would not use personal details so close to his own. The obviousness of the connections was more consistent with a set-up.
8. The appellant is not the type of person to commit this type of offence.
9. The investigation was inept in a number of particulars, including failing to question others about the Acer Aspire 5920 computer, not speaking to the appellant's daughter, failing to properly follow up the recharge of the voucher at the BP service station in New Zealand, the handling of the 2010 diary in the Tavern office, and the various errors pointed to on exhibit 7.

116 The strongest arguments were points 2, 3 and 6, to the effect that police searches could not locate the computer equipment used to access the pissbeck and janlove accounts, access the emailed images and store images accessed by the Acer Aspire 5920 computer. As well as the missing dongle and SIM card associated with the 524 service, there was a missing computer used in the commission of the offences. However, the failure of police to locate that equipment was not fatal to the prosecution case, and counsel on appeal did not suggest proof of the location of that equipment to be an indispensable step in the Crown's circumstantial case. Nor was an explanation of the purchase of the recharge voucher (point 1) suggested to be an indispensable step in the Crown case. There are a variety of ways in which the appellant could have concealed the computer equipment, or obtained a code on a voucher purchased in New Zealand.

117 The facts that the equipment was not located and the appellant did not purchase a recharge voucher in New Zealand are not necessarily inconsistent with the appellant sending and receiving the offending emails. These aspects of the Crown case had to be evaluated with the evidence summarised above and in the context of the evidence as a whole.

118 Points 4, 5 and 8 have already been addressed. The appellant's lack of prior convictions and alleged deficiencies in the police investigation did not preclude the jury being satisfied beyond reasonable doubt of the appellant's guilt.

119 When the evidence led at trial was considered as a whole, the jury could properly be satisfied beyond reasonable doubt that the only rational inference which could be drawn from the primary facts established by that evidence was that the appellant used a computer to access or transmit each of the emails which were the subject of the indictment. The trial record does not require the conclusion that the jury must necessarily have entertained a doubt about the appellant's guilt on any of the counts of which he was convicted. After paying full regard to the consideration that the jury was the tribunal of fact entrusted with the primary responsibility of determining guilt or innocence, and after paying full regard to the consideration that the jury had the benefit of having seen and heard the witnesses, we do not have a reasonable doubt as to the appellant's guilt on any of the counts of which he was convicted or as to the correctness of his conviction on any of those counts. It would not be dangerous, in the circumstances, to permit the verdicts to stand. The verdicts were not unreasonable and were supported by the evidence. Ground 1 of the conviction appeal must be dismissed.

Conviction appeal ground 2: alleged misdirection

There was a miscarriage of justice when the learned trial judge failed to direct the jury that the prosecution needed to prove beyond reasonable doubt that the appellant had, during the alleged offending period, exercised control over the impugned material.

121 The application for leave to appeal on ground 2 was referred to the hearing of the appeal.

122 The appellant accepts that the offence created by s 474.19 of the Criminal Code 'itself does not contain the concept of "possession" as an element, as is the case with offences contrary to section 474.20 of the Code'. However, the appellant submits that the language of s 474.19, in particular s 474.19(1)(iii), 'denotes some sort of possession or control by the appellant in relation to the computers and dongles used to access and/or transmit the child pornography material'. The appellant submits that, to establish identity, the Crown relied upon the drawing of inferences as to ownership or control of the offending devices. The appellant contends that, as such, there should have been a direction by the trial judge 'in relation to the appellant being in possession of these devices to commit the offence themselves'.

123 There is no merit in ground 2 or the submissions advanced in support of the ground. Section 474.19 relevantly requires the Crown to prove that the appellant used a carriage service to 'access' or 'transmit' material that was child pornography. 'Material' includes material in any form, or combination of forms, capable of constituting a communication.[69] Material as defined need not comprise an object which can be physically possessed, and need not be stored on the device used to transmit it. In contrast to the offence created by s 474.20 of the Criminal Code, the offence proscribed by s 474.19 does not contain any element of possession, either of the child pornography material or the computer equipment used to transmit or access that material.

124 In this case the critical question on each count on the indictment was whether the appellant was the person who used Dodo's carriage service to send or receive the relevant email. The trial judge directed the jury that the Crown must provide beyond reasonable doubt that the person who did the things that it said constituted the offence was the appellant and not some other person.[70]

125 The trial judge identified the other elements of the offence as being:

• the use of a carriage service;
• that the images contained in the emails were accessed or transmitted over the internet;
• that the material constituted child pornography; and
• that the person using the carriage service to access or transmit the material was aware or reckless as to the fact that the material was child pornography.[71]

The trial judge correctly noted that these other elements were the subject of admissions and the appellant took no real issue in respect of the intention of the offender.

126 Taken as a whole, in the context of the submissions advanced by counsel, the trial judge's direction properly identified the critical issue for the jury's determination as whether the appellant sent and received the emails which were the subject of each count on the indictment. A direction about possession was neither required nor warranted.

127 Leave to appeal should be refused in relation to ground 2 of the conviction appeal.

128 The trial judge made the following findings as to the appellant's conduct and personal circumstances.

129 The trial judge found that, between 3 September 2013 and 30 October 2013, the appellant had access to the Internet and engaged in online communications whereby he traded child pornography material. That trading was conducted by the appellant with an undercover operative in Queensland and FBI and other agents in the United States, using the janlove and pissbeck accounts.

130 The trial judge noted that undercover operatives were working in both Queensland and the United States to uncover the trade in child pornography. The officer in Queensland identified such a trader in Australia by visiting a Russian website and then struck up an email correspondence with a person called Beck, which was the appellant.

131 In the United States other operatives from the FBI and other agencies were involved. One of those operatives managed to obtain an email address from an established trader in child pornography and, on viewing that email address and records, discovered correspondence with the appellant and continued with that correspondence.

132 The trial judge found that the appellant had operated the dongle for the 524 service and registered various details to disguise himself by giving false information.

133 The trial judge inferred that the computer on which the trade was conducted, and the dongle which allowed it to happen, had been kept elsewhere than at the searched addresses and had still not been recovered.

134 The judge accepted the appellant was not motivated to offend by way of profit. He noted that the offending appeared to have been over approximately an eight-week period. The trial judge found that that the appellant tried to disguise his identity, and was actively seeking out this type of pornographic material.

135 The trial judge said that there were over 4,000 images, with some duplication bringing the number down to over 2,000 individual images. Some of the material involved extremely young children, who were little more than babies, and some involved bondage. The trial judge noted that the appellant's trial counsel described the material as vile, and agreed that this was an apt description.

136 Some of the trial judge's findings as to the number of images are a little confusing. He and defence counsel accepted the accuracy of the following schedule prepared by the Crown:

1. The child pornography material images were viewed by a member of the AFP CPO team who categorised them according to the Child Exploitation Tracking System (CETS).
2. The CETS scale is as follows:

Depictions of children with no sexual activity, but include nudity, surreptitious images focused on underwear, nakedness, sexually suggestive posing, explicit emphasis on genital areas and solo urination;

Solo masturbation by a child or non-penetrative sexual acts between children;

Non-penetrative sexual activity between children and adults, mutual masturbation and other non-penetrative sexual activity;

Penetrative sexual activity between children and adults including but not limited to sexual intercourse, cunnilingus and fellatio;

Sadism, bestiality or humiliation or child abuse material.

1. Count 1 on the Indictment - Use Carriage Service to Access Child Pornography Material:

1. Count 2 on the Indictment - Use Carriage Service to Transmit Child Pornography Material:

1. Count 3 on the Indictment - Use Carriage Service to Transmit Child Pornography Material:

1. Count 4 on the Indictment - Use Carriage Service to Transmit Child Pornography Material:

1. Count 5 on the Indictment - Use Carriage Service to Access Child Pornography Material:

1. Count 6 on the Indictment - Use Carriage Service to Transmit Child Pornography Material:

1. Count 7 on the Indictment - Use Carriage Service to Transmit Child Pornography Material:

1. The total number of images in relation to all 7 counts on the indictment is 4,364.
2. All images contained in count 7 are the same as the images contained within count 5.

137 The classification employed by the Crown is derived from the guideline judgment of the Court of Appeal of England and Wales in R v Oliver.[72]

138 The use of this classification system, and its limits, was referred to by this court in Smit v The State of Western Australia,[73] where it was observed:

It is not suggested by the English Court of Appeal that its classification list is intended to be a substitute for the sentencing judge viewing the pornographic material the subject of the conviction. Nor should it. The relative perversion and debauchery of the pornographic material is a relevant sentencing factor. Viewing a representative sample (as identified or agreed by the parties) of the material will ordinarily be necessary for the proper performance of the sentencing judge's duties. Judges involved in the administration of the criminal law are frequently exposed to material that is deeply offensive in a myriad of different ways whilst being required to retain their objectivity and sense of proportion. Moreover, this court is assisted by findings as to the nature of the pornographic material such as those made by the sentencing judge in this case which went well beyond the limited description in the DPP's list. The classification levels can only be of marginal assistance to courts involved in imposing or reviewing sentences for offences involving child pornography [17].

139 Depending on the circumstances, the ordinary approach of the sentencing judge viewing a representative sample of the pornographic material may not be necessary where the parties provide a sufficiently detailed agreed description of the nature and egregious features of the pornographic material which is the subject of the charge. Such a written description will need to descend to particulars well beyond the CETS classification of the material. The nature of the material within each CETS category may range from written text and cartoons to photographic images and videos, and even within those sub-categories the depravity of the images and the seriousness of the child abuse they depict may vary considerably. However, whether a sentencing judge views a representative sample of the images or is content to proceed on a sufficiently detailed written description, he or she should ordinarily make findings of fact as to the nature and egregious features of the pornography in a manner that extends beyond CETS categories.

140 In this case the trial judge viewed samples of the pornographic images. However, he did not make findings of fact about the nature and egregious features of the images which were the subject of each count on the indictment, beyond noting that 'some of the material involved extremely young children, who were little more than babies, and some involved bondage'. Further, the tables produced by the prosecution appear to identify the total number of images exchanged between the email accounts, rather than the images which were particularised as being the subject of the indictment.

141 The trial judge found, in a manner generally consistent with the way the charges had been particularised at trial, that:[74]

• count 1 concerned access to 15 images (as opposed to 26 in the Crown's table);
• count 2 concerned transmitting 2 images (as opposed to 4 on the Crown's table);
• count 3 concerned transmitting 2 images (consistently with the Crown's table);
• count 4 concerned transmitting 1 image (consistently with the Crown's table);
• count 5 concerned accessing 7 images (as opposed to 2,166 on the Crown's table and six images specified in the Crown's closing submissions at trial); and
• count 6 concerned transmitting an unidentified number of images (as opposed to 18 images on the Crown's table).

The trial judge did not specify the number of images which were the subject of count 7 (while the Crown's table identified 2,145 images).

142 The trial judge noted that the appellant was 46 years old. His parents separated when the appellant was about 1 year old, and he had no contact with his biological father until later in life. The trial judge noted that there was some domestic violence from a stepfather, who was also a binge drinker, who the appellant's mother left when the appellant was about 11 years old.

143 The appellant's schooling was uneventful and he left after completing year 10. A lot of the appellant's work had been in hospitality and he had recently been the operator and part-owner of the Hungry Hollow Tavern.

144 The trial judge noted that the appellant had one significant relationship, which had ended, and from which the appellant had a 10-year-old daughter. The appellant maintained regular contact with her until the current offences.

145 The trial judge referred to pre-sentence and psychological reports. In this assessment the appellant did not report any sexual interest in children, and a risk assessment placed the appellant in the low to moderate level of risk for the future for sexual offending. However, the trial judge observed that this risk assessment must be considered in light of the appellant's continued denial of the offending, which may well result in him not being suitable for normal sex offender programs.

146 The trial judge noted that the appellant had no relevant criminal record.

147 The trial judge said that he took account of the fact that the emails which were the subject of the indictment were only part of a string of correspondence that was conducted between the various email addresses over a period of time. The trial judge took account of the surrounding circumstances and the ongoing nature of the conduct, while recognising that the appellant was not to be sentenced for other matters.

148 The trial judge found that the appellant appeared to show no repentance or remorse, and had attempted to minimise his involvement by seeking to pass the blame onto others. The trial judge found that the appellant had a reasonable understanding of the impact of sexual abuse on children who are unable to make decisions regarding sexual behaviour.

149 The trial judge noted that the appellant had cooperated with law enforcement authorities during the searches and cooperated in the course of trial by making formal admissions of elements other than identity.

150 The trial judge concluded that, given the appellant's continued denial of the offences, it was difficult for him to make any meaningful assessment of the appellant's prospects for rehabilitation. He noted that there was no evidence about the effect of a sentence on the appellant's family, and the fact that his tavern business may be lost was a consequence of his conviction which could not be given any great weight in the sentencing process.

151 Having referred to various relevant sentencing considerations in a manner not subject of complaint in this appeal, the trial judge imposed the following sentences:

152 The trial judge ordered that the sentences for counts 4 and 5 be served cumulatively, and the remainder of the sentences be served concurrently. This resulted in a total effective sentence of 3 years 9 months' imprisonment. The trial judge fixed a non-parole period in respect of that term of 2 years 6 months. The sentence was backdated to 3 February 2016 to take account of time spent in custody.

153 The appellant seeks leave to appeal against his sentence on three grounds:

1. The sentencing discretion miscarried because, in all the circumstances, it was not reasonably open in the exercise of a sound discretionary judgment to impose a term of immediate imprisonment.
2. The total sentence of 3 years and 9 months immediate imprisonment was, in all the circumstances, manifestly excessive.
3. The individual sentences imposed in counts 5 and 7 were, in all the circumstances, individually manifestly excessive. (particulars omitted)

154 The application for leave to appeal on all these grounds was referred to the hearing of the appeal.

155 We shall treat grounds 1 and 3 as in effect alleging that the sentences were manifestly excessive, both as to the length of the sentences for counts 5 and 7 and, in relation to all counts, the decision to impose a sentence of imprisonment rather than make an order that would have the effect of ordering the appellant's release before any part of the sentences was served. We shall treat ground 2 as asserting a breach of the first limb of the totality principle in relation to the accumulation of sentences, and alleging that the non-parole period specified by the sentencing judge was manifestly excessive.

156 Section 16A(1) of the Crimes Act 1914 (Cth) requires that, in determining the sentence to be passed for a federal offence, the court must impose a sentence that is of a severity appropriate in all the circumstances of the offence.

157 Section 16A(2) of the Crimes Act provides that the court must take into account a number of matters so far as they are relevant and known to the court. Presently relevant considerations include:

• the nature and circumstances of the offence;
• any course of conduct consisting of a series of criminal acts of the same or similar character;
• the degree to which the offender has shown contrition for the offence;
• if the offender has pleaded guilty to the charge, that fact;
• the degree to which the offender has cooperated with law enforcement agencies;
• the deterrent effect that any sentence may have on the offender or other persons;
• the need to ensure that the offender is adequately punished;
• the character, antecedents, age, means and physical and mental condition of the offender;
• the prospects of rehabilitation of the offender; and
• the probable effect that any sentence or order under consideration would have on any of the offender's family or dependants.

158 Section 17A(1) of the Crimes Act provides that a court shall not pass a sentence of imprisonment on any person for a federal offence unless the court, having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.

159 Section 19AB of the Crimes Act requires that, subject to presently immaterial exceptions, the court fix a single non-parole period in respect of the federal sentences which exceed 3 years' imprisonment. Section 19AC requires the court to make a single recognisance release order in respect of federal sentences which total 3 years' imprisonment or less. The length of the non-parole period or pre-release period of a recognisance release order is not prescribed but, under s 19AF of the Crimes Act, the court must fix a non-parole or pre-release period that ends not later than the end of the sentence.

160 Section 20(1)(a) of the Crimes Act provides that a court sentencing a person convicted of federal offences may, if it thinks fit, by order, release the person without passing sentence on him or her, upon the person giving security by way of recognisance or otherwise that he or she will comply with certain conditions.

161 Section 20(1)(b) of the Crimes Act provides that a court sentencing a person convicted of a federal offence may, if it thinks fit:

sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a) either forthwith or after he or she has served a specified period of imprisonment in respect of that offence or those offences that is calculated in accordance with subsection 19AF(1).

162 The factors informing the determination of the length of a non-parole period were considered by this court in Lam v The Queen.[75] It is unnecessary to repeat that analysis here.

Sentence appeal: manifest excess General principles

163 The general principles governing this appeal are well established:

1. A ground of appeal which alleges that a sentence is manifestly excessive asserts an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
2. The discretion conferred on sentencing judges is of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. The appellant must demonstrate the sentence imposed to be unreasonable or plainly unjust.
3. The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
4. A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
5. When an appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.

164 The maximum penalty prescribed for an offence against s 274.19 of the Criminal Code is imprisonment for 15 years. The maximum penalty for that offence was increased from 10 years' to 15 years' imprisonment on 15 April 2010.[76]

165 Where a State court is required to sentence an offender for a federal offence, the need for sentencing consistency throughout Australia requires the court to have regard to sentencing practices across the country and to follow decisions of intermediate appellate courts in other States and Territories unless convinced that they are plainly wrong. The point of having regard to what has been done in other comparable cases throughout the Commonwealth is twofold:

1. It can and should provide guidance as to the identification and application of relevant sentencing principles.
2. The analysis of comparable cases may yield discernible sentencing patterns and possibly a range of sentences against which to examine an impugned sentence.[77]

166 As was noted in R v Lee,[78] the imposition of a sentence other than immediate imprisonment for State offences of possessing child exploitation material and the federal offence of importing child pornography is, as a matter of fact, exceptional. Deterrence is a paramount consideration. The courts have recognised that those who possess or import child pornography help fuel the demand for it, and that deterrence is required to protect children from sexual abuse and exploitation. Similar statements are to be found in other jurisdictions in the context of considering sentences imposed under s 474.19 of the Criminal Code.[79]

167 Observations to the same effect were made in the context of sentencing for offences against s 474.19 of the Criminal Code in R v De Leeuw.[80] In that case the mature offender, who was of prior good character, pleaded guilty to three offences of using a carriage service to access child pornography, as well as State offences of possessing child abuse material. The offences against s 474.19 occurred between 2005 and 2013, and so straddled the increase in the maximum penalty from 10 to 15 years' imprisonment. The offender had downloaded web pages from the internet. Sentences of between 15 and 21 months' imprisonment were substituted on a Crown appeal, with a total effective sentence of 3 years' imprisonment imposed for State and federal offences. The offender had downloaded in excess of 24,000 items, with over 1,700 in categories 4 or 5. The minimum term of 1 year 9 months' imprisonment was set under State law.

168 In Taylor, sentences of imprisonment for 15 months with release on recognisance after 8 months, imposed in respect of two charges of accessing child pornography, were upheld on appeal. The offender in that case admitted using peer-to-peer file sharing software to access child pornography over a 6 ½ year period. Of approximately 1,350 images found on his computer, most were in category 1 and only eight were in category 4. The only material in category 5 was three text files. The offender pleaded guilty to the offences.

169 In R v Martin,[81] individual sentences of 2 years' imprisonment were imposed on a successful prosecution appeal for two counts of accessing child pornography. An individual sentence of 4 years 6 months' imprisonment was imposed for an offence of transmitting child pornography. The transmitting offence involved sharing over 47,000 files over 6 months, of which 14% were in category 4. The maximum penalty was 10 years' imprisonment at the time the accessing offences were committed, and 15 years' imprisonment at the time of the transmitting offence. The offender had pleaded guilty to those charges and other counts. A non-parole period of 3 years was imposed in respect of the Commonwealth offences.

170 The sentence of 4 years 6 months' imprisonment involved a transmitting offence which is significantly more serious than the conduct of which the appellant has been convicted, having regard to the volume and nature of the transmitted material and the extended period of time over which transmission occurred. The antecedents of the offender in Martin were similar to the appellant's.

171 In Heathcote (a pseudonym) v The Queen,[82] the mature offender of prior good character pleaded guilty to one count of accessing and one count of transmitting child pornography. He was sentenced to 9 months' imprisonment for the access offence and 12 months' imprisonment for the transmitting offence. These sentences (together with sentences for State offences) formed part of a total effective sentence of 18 months' imprisonment. The combined period of incarceration prior to release for both State and federal offences was 9 months' imprisonment (with release on recognisance after serving 5 months of the federal sentences). The accessing offence involved 26 images (24 in category 1, one in category 2 and one in category 3), while the transmitting offence concerned 11 images (nine in category 1 and two in category 2). The images were exchanged by email.

172 In Director of Public Prosecutions v Guest,[83] the mature offender pleaded guilty to accessing and transmitting child pornography using a peer to peer file sharing service. The material identified comprised over 10,000 images or videos, of which over 1,000 were in categories 4 or 5. The Victorian Court of Appeal set aside a non-custodial disposition and substituted sentences of 18 months' imprisonment on each of the two federal counts, with release on recognisance after serving 6 months' imprisonment. The court indicated that, if the offender had not pleaded guilty, a total effective sentence of 3 years 6 months' imprisonment with release on recognisance after serving 18 months would have been imposed. The number of images, and proportion in category 4 and 5, were greater than those involved in the present case, and the transmitting was to third parties.

173 In Godfrey v The Queen,[84] a sentence of 16 months' imprisonment was imposed on appeal for an offence of accessing approximately 40 written text stories constituting child pornography. The fact that the form of the child pornography did not involve the exploitation of actual children was significant. The sentence formed part of a total effective sentence of 3 years' imprisonment with a 2-year minimum term. In that case Hall J reviewed a number of authorities dealing with sentence appeal for offences against s 474.19 of the Criminal Code.[85] We gratefully adopt that analysis without repeating it.

174 In Burrell v The Queen,[86] the mature offender pleaded guilty to two counts of accessing child pornography under s 474.19 of the Criminal Code, two counts of accessing and making available child abuse material contrary to s 474.22 of the Criminal Code (which also carries a maximum penalty of 15 years' imprisonment) and one State offence of possessing child pornography. Over 6,000 images and videos were involved in the offences, some of which was in the 'worst category'. The court upheld a total effective sentence of 3 years 6 months' imprisonment with a non-parole period of 2 years 4 months. There was no challenge to individual sentences of 2 years' imprisonment imposed for the s 474.19 offences.

175 In Naysmith v The Queen,[87] this court set aside custodial sentences imposed for child pornography offences, including an offence against s 474.19 of the Criminal Code, and substituted an intensive supervision order. However, in that case the offender suffered from a significant intellectual disability which was such as to require that little weight be given to general deterrence. That case is not comparable to the present.

176 In R v Hayes,[88] an individual sentence of 18 months' imprisonment with release on recognisance after 12 months was upheld on appeal. The maximum penalty at this time was 10 years' imprisonment. The offences, to which the offender pleaded guilty, involved downloading over 5,000 images (over 800 in category 4 or 5).

177 In Rivo v The Queen,[89] the offender was sentenced to a term of 4 years' imprisonment on his plea of guilty to causing child pornography material to be transmitted to himself. The conduct in that case involved the offender accessing live sex shows via the internet, and directing what was to occur. The sentence for the offence against s 474.19 formed part of a total effective sentence of 7 years' imprisonment. While the s 474.19 offence was more serious than the present case, it was a higher sentence than the appellant received, was imposed after a plea of guilty and was imposed at a time when the maximum penalty for an offence against s 474.19 was 10 years' imprisonment.

178 In O'Connor, an offender who pleaded guilty to accessing over 14,700 images across the range of categories was sentenced to 18 months' imprisonment but released on recognisance immediately for the federal offence. The court considered this sentence to be in error, but dismissed the prosecution appeal in the exercise of its 'residual discretion' in the particular circumstances of that case.

179 The appellant relied on the decision in R v Hogan.[90] In that case a sentence of 6 months' imprisonment, with immediate release on recognisance, was imposed for an offence against s 474.19 of the Criminal Code. The offender received a suspended sentence for a more serious State offence. The federal offence concerned the download of seven images classified 'at the lowest end of the scale'. The offender in that case entered an early plea of guilty, cooperated with police and had taken active steps towards rehabilitation.

180 These decisions indicate that, as a matter of fact, a sentence for an offence against s 474.19 of the Criminal Code which does not require the service of a custodial sentence is exceptional. All of the cases cited above involved pleas of guilty by offenders of prior good character. A number of the cases involved offences committed at a time when the maximum penalty was 10 rather than 15 years' imprisonment. The individual sentences of immediate imprisonment for offences against s 474.19 imposed or upheld on appeal in reviewed cases range from 9 months to 4 years 6 months' imprisonment. Most of the individual sentences for offences against s 474.19 are substantially less than the 3-year sentences imposed for counts 5 and 7 in the present case. Individual sentences approaching or exceeding 3 years' imprisonment have been imposed only for the more serious kinds of offences.

181 In D'Allessandro, the Victorian Court of Appeal identified the following factors which bear upon the seriousness of an offence against s 474.19 of the Criminal Code. They were:

(a) the nature and content of the pornographic material - including the age of the children and the gravity of the sexual activity portrayed;

(b) the number of images or items of material possessed by the offender;

(c) whether the possession or importation is for the purpose of sale or further distribution;

(d) whether the offender will profit from the offence [21].

182 A somewhat broader range of factors was identified by the New South Wales Court of Criminal Appeal in Minehan v The Queen,[91] where it was also said that the list of factors was not closed, and individual cases may always produce further matters relevant to the assessment of their objective seriousness.[92]

183 In the present case, determining the number and nature of the images which are the subject of count 5 is made difficult by the highly unsatisfactory way in which the Crown presented evidence and sentencing material relating to the emails between the janlove account and Account D. Exhibit 30 is a large folder of printed emails presented in a very repetitive form, which is not easy to follow. In closing submissions, prosecuting counsel indicated that only six images were the subject of count 5.[93] Those submissions were made by reference to a 'jury book' which purported to contain a copy of pages of exhibit 30. However, we cannot locate the page of the 'jury book' on which counsel relied in exhibit 30. At one point in sentencing the trial judge found that the email which was the subject of count 5 contained seven images.[94] At other points in his sentencing remarks, the trial judge appears to have accepted the Crown's schedule categorising the emails in a way that indicated that 2,166 images were the subject of count 5 on the indictment.

184 In the face of these contradictory findings, it is appropriate for this court to assess the seriousness of the offending conduct which is the subject of count 5 by reference to the manner in which the Crown particularised the count at trial. That is, the sentencing outcome is to be assessed on the basis that only six images were the subject of count 5. While the court can take account of the fact that accessing those images occurred in the course of the appellant accessing a much larger number of images, he can only be punished for accessing the six images which were the subject of count 5.

185 Following the hearing of this appeal, the court wrote to the parties identifying the issue described above and inviting further written submissions on the number of images the subject of count 5. The court also directed the parties to confer with each other and provide the court with 'an agreed written description of the six images' on the relevant page of the 'jury book'.

186 Both parties' written submissions accepted that the appellant was to be sentenced on the basis that six images were the subject of count 5. The Crown properly conceded that, in those circumstances, 'the sentence imposed for count 5 is too high'. The parties indicated their agreement that the six images comprised four images in CETS category 1 and two images that are CETS category 3. Unfortunately the agreed description does not do more than identify the CETS category, which as noted above is not an entirely satisfactory basis for sentencing offences of this kind. It would have been of greater assistance to have a much more specific description. However, in the circumstances of this case and in light of the fact that the sentence for count 5 will be served concurrently, we will proceed to deal with resentencing the appellant on the material provided by the parties. We will undertake that process on the assumption, favourable to the appellant, that the images are towards the lower end of the range of seriousness of photographic images falling within those categories.

187 While only six images were the subject of count 5 on the indictment, the offence of which the appellant was convicted remains serious. The appellant acquired the material from the operator of Account D, who was not an undercover police operative, in a context where the appellant was encouraging the operator of Account D to provide pornographic material of his daughter and niece. The appellant was seeking to trade images in a way that encouraged the production of child pornography and the consequent abuse of children. He used a considerable degree of planning and organisation in an attempt to conceal his involvement in the offences. Accessing the images was not an isolated event, but occurred as part of a continuing course of conduct.

188 A large number of images, across the range of categories and which depicted very young children, were the subject of count 7. However, the transmission which was the subject of this count on the indictment was a transmission of images between the appellant's own email accounts. The conduct remains a serious offence, given the number and nature of the images concerned. However, it is not in the most serious category of offending as it involves the appellant storing material he has already acquired in a different location, rather than obtaining that material or providing it to a third party.

189 The appellant did not have any relevant prior convictions and was otherwise a person of good character prior to his offending. That is not uncommon for offenders convicted of child pornography offences, and does not distinguish him from the offenders in the other cases to which we have referred.

190 The appellant does not have the mitigating features of remorse, acceptance of responsibility for his offending and insight into his offending that were present in the other cases to which we have referred. While the appellant did facilitate the administration of justice to some extent, it was only by confining the issues in his trial.

191 While the offending which is the subject of counts 5 and 7 is serious, it is not in the most serious category. Count 5 concerned downloading six images, none of which were in the most serious categories, while count 7 concerned the appellant transferring images between his own email accounts. Cases in which individual sentences of 3 years or more have been imposed for offences against s 474.19 have involved significantly more serious examples of the offence, albeit where the sentence was imposed after a guilty plea.

192 Having regard to all relevant sentencing factors and principles (including such of the matters set out in s 16A(2) of the Crimes Act as were relevant and known to the court and the general standards of sentencing applicable to the offences) and all the circumstances of the case (including those personal to the appellant) we are satisfied that the individual sentences for counts 5 and 7 were manifestly excessive as to the length of the term of imprisonment. The objective seriousness of the offences did not justify individual sentences of 3 years' imprisonment. Neither the accessing of only six images nor, in the context of an offence directed to trade in child pornography, the appellant sending images to himself, could reasonably justify sentences of 3 years' imprisonment. The individual sentences of 3 years' imprisonment for these counts were, in all the circumstances, unreasonable and plainly unjust.

193 Ground of appeal 3, which contends that the individual sentences imposed for counts 5 and 7 were manifestly excessive, should be allowed.

194 However, we would dismiss ground of appeal 1, which contends that it was not reasonably open in the exercise of a sound discretionary judgment to impose a term of 'immediate imprisonment' in respect of the sentences for all counts. Having regard to the factors, principles and circumstances referred to above, the present case demanded that the sentencing court fix a substantial non-parole or pre-release period (as applicable) before the appellant could be released on parole or recognisance in respect of the federal sentences it imposed.

195 The conclusion that the individual sentences for counts 5 and 7 were manifestly excessive means that those sentences must be set aside and the appellant resentenced by this court. It is therefore unnecessary to deal with ground 2 of the sentence appeal.

196 We would impose a sentence of 10 months' imprisonment for each of count 5 and count 7. The appellant does not challenge the length of the other individual sentences of imprisonment, and we would not interfere with the length of those terms. We would, however, set aside the orders for concurrency and accumulation made by the trial judge. To recognise the overall criminality involved in all the offences, we would order that the sentence for count 4 (9 months' imprisonment) be served cumulatively upon the sentence for count 1 (2 years' imprisonment). The sentences for counts 2 - 3 and 5 - 7 should be served concurrently with each other and with the sentence for count 1.

197 This results in a total effective sentence of 2 years' 9 months' imprisonment. We would also order that the appellant be released after serving 22 months on entering into a recognisance, in the sum of $10,000, that he will be of good behaviour for 11 months (ie, the balance of the sentence).

198 For these reasons, we would make the following orders in each appeal:

1. Leave to appeal on proposed ground 1 is granted.
2. Leave to appeal on proposed ground 2 is refused.
3. The appeal is dismissed.

1. Leave to appeal is granted on proposed grounds 1 - 3.
2. The appeal is allowed.
3. The sentences of 3 years' imprisonment imposed for counts 5 and 7 of District Court indictment 1791 of 2014 are set aside and the following sentences are substituted:

1. The orders for concurrency and accumulation in relation to the counts on the indictment be set aside.
2. The individual sentence for count 4 (9 months' imprisonment) on the indictment shall be served cumulatively upon the individual sentence for count 1 (2 years' imprisonment).
3. The individual sentences for all other counts on the indictment are to be served concurrently with each other and concurrently with the sentence for count 1.
4. The sentence for count 1 on the indictment is taken to have commenced on 3 February 2016.
5. The appellant be released after serving 22 months on entering into a recognisance, in the sum of $10,000, that he will be of good behaviour for 11 months.

[1] M v The Queen [1994] HCA 63; (1994) 181 CLR 487, 492 - 493.

[2] EAGD v The State of Western Australia [No 2] [2014] WASCA 68 [35], citing SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400 [14].

[3] Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 [113]; Bibovic v The State of Western Australia [2016] WASCA 22 [34]. See also Mansell v The State of Western Australia [No 6] [2013] WASCA 120 [16] - [19].

[4] R v Baden-Clay [2016] HCA 35 [46] - [47].

[5] Chamberlain v The Queen [No 2] [1983] HCA 13; (1984) 153 CLR 514, 536.

[6] Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152, 169 - 170, cited in Baden Clay [55].

[7] Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573.

[9] Exhibit 8, ts 199 - 200. The appellant also admitted these facts during the recorded search of his residence.

[16] Exhibit 8. Note that there is a transcription error at ts 200 where the appellant's mother's street number is given, by reference to exhibit 8, as 16; see also ts 457 where the trial judge accepts a correction by the appellant's trial counsel as to the street number.

[24] The appellant formally admitted that these emails were sent and received by the nominated email accounts at relevant times, and that the emails contained images which constituted child pornography: ts 114 - 116; exhibit 1. He did not admit that he was the person who sent or received the emails. The emails which relate to each count of the indictment were particularised in an 'Election Summary' provided by the prosecutor as a jury aid during his closing address.

[49] Exhibits 9.1 and 9.2; ts 200 - 203, 211 - 212.

[69] Section 473.1 (definition of 'material') of the Criminal Code.

[72] R v Oliver [2003] 2 Cr App R (S) 15.

[73] Smit v The State of Western Australia [2011] WASCA 124 [14] - [17].

[75] Lam v The Queen [2014] WASCA 114; (2014) 241 A Crim R 562.

[76] By the Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 (Cth).

[77] R v Pham [2015] HCA 39; (2015) 90 ALJR 13 [18], [26].

[78] R v Lee [2013] WASCA 216 [33] - [39].

[79] Taylor v The Queen [ 2015] TASCCA 7 [27] - [29]; Director of Public Prosecutions v D'Allesandro [2010] VSCA 60; (2010) 26 VR 477 [21]; R v O'Connor [2012] SASCFC 15 [14].

[80] R v De Leeuw [2015] NSWCCA 183 [72].

[81] R v Martin [2014] NSWCCA 283; (2014) 246 A Crim R 477.

[82] Heathcote (a pseudonym) v The Queen [2014] VSCA 37.

[83] Director of Public Prosecutions (Vic) v Guest [2014] VSCA 29.

[84] Godfrey v The Queen [2013] WASCA 247.

[86] Burrell v The Queen [2013] VSCA 146.

[87] Naysmith v The Queen [2013] WASCA 32.

[88] R v Hayes [2012] SASCFC 96.

[89] Rivo v The Queen [2012] VSCA 117.

[90] R v Hogan [2015] SASCFC 12.

[91] Minehan v The Queen [2010] NSWCCA 140; [2010] NSWCCA 140; (2010) 201 A Crim R 243 [94].

[93] See page 26 of prosecuting counsel's closing address, page 119 of MFI 32 (the Jury Book) and the jury aid 'Election Summary'.