Burbridge v R

Facts

1. Before dealing with the grounds of appeal, it is appropriate to summarise the facts that have given rise to the offences and the Remarks on Sentence. The facts may be stated briefly.
2. Following the monitoring of a website that publishes child abuse material, the Australian Federal Police ("AFP") identified the applicant as a visitor to, or user of, the site.
3. On 14 May 2013, the AFP executed a search warrant at the applicant's residence and conducted preliminary investigations of electronic devices. The AFP officers identified a laptop computer containing problematic images and videos.
4. The applicant admitted to the AFP officers that he had created an account with a child abuse website and had written a paedophilic story (Count 3); that he received emails containing paedophilic material (360 files) (Count 1); that he sent child pornography to others by email (41 emails with 213 files) (Count 2); and that he stored paedophilic material on his computer and USB drives (1,122 items) (Count 4).
5. The applicant was charged with Counts 1-4 and, on 11 August 2013, granted conditional bail. One of the bail conditions was that the applicant not use or obtain access to the internet.
6. On 19 February 2014, NSW police officers conducted a random check to ensure compliance with the bail conditions and uncovered another laptop containing paedophilic material (190 files) (Count 5). This conduct occurred, as is obvious, while the applicant was on conditional liberty.
7. The applicant filed a Form 1, List of Additional Charges, containing one offence, being the possession of a prohibited drug (cannabis) to be taken into account in sentencing for Count 4.

Remarks on Sentence

1. The sentencing judge held that the following matters were particularly relevant in assessing the seriousness of the offences generally: actual children were used in the material; the age of the children; the gravity of the acts performed and depicted; the depiction of over 300 different children; material was in the applicant's possession primarily for his own purposes and, in relation to one of the offences, for non-commercial distribution; no sophisticated degree of planning; no collaboration with other persons; no risk that the material would be acquired by vulnerable persons; no risk that the material would be seen by persons susceptible of acting or being coerced to act in the manner depicted; and the material would be seen by persons with similar interests to the applicant. The offence was held to be below mid-range in objective seriousness.
2. General deterrence was said to be of paramount importance and the offences, for that reason amongst others, were appropriate for a custodial sentence. The sentencing judge accepted that the offences formed part of a single course of conduct and could not be regarded as spontaneous or impulsive.
3. The vulnerability and number of victims was not a factor the sentencing judge considered separately, as he had taken them into account in assessing the objective seriousness more generally.
4. In considering subjective factors, the judge noted that the applicant suffered severe abuse and neglect as a child, although more recently his grandparents had provided him with a stable home. The sentencing judge referred to the report of Dr Furst, tendered by defence counsel, which concluded that the applicant developed paedophilic behaviour, in part, as a means of coping with loneliness and emotional distress and otherwise for sexual arousal.
5. The applicant had no prior convictions and was a person of previous good character. While taking those factors into account, the sentencing judge commented that previous good character was to be given less weight in offences of this kind. Of course, as earlier stated, Count 5 occurred at a time when the applicant was on bail for the other counts, which qualifies the good character factor and the learned judge took that into account as an aggravating factor because of the need for specific deterrence.
6. In further mitigation, the sentencing judge considered and took account of the applicant's plea at the earliest opportunity and provided a 25% reduction for its utilitarian value for all offences and also took account of the applicant's remorse and assistance in the investigation of the offences.
7. The sentencing judge, taking into account the voluntary early intervention by psychologists, the two pre-sentence reports identifying programmes that may be available (one in particular), considered there were sound prospects for rehabilitation and that the risk of re-offending was medium.
8. Lastly, the learned judge took account of the applicant's exploitation of the anonymity of the internet to share child pornography with others and considered that each offence was to some extent distinct and required a degree of accumulation.

Submissions and Consideration

1. The applicant submits that the sentences are manifestly excessive and the degree of accumulation too severe in that it does not adequately take totality into account. The question of whether a sentence is excessive (manifestly or otherwise) is a conclusion dependent on the outcome.
2. Manifest error occurs when a sentence is excessive (or lenient) to an extent that there must have been error of principle or the misapplication of principle, even though none can be identified.
3. It is not suggested that any finding of fact is wrong or that the judge relied on any mistaken view of the facts. Nor is it said that the judge failed to rely on any principle or mistook any principle. In other words, the applicant relies on manifest error.
4. In order to do so, the applicant must show that the sentencing discretion miscarried, resulting in a sentence that is beyond the range of sentences that could be justly imposed for the offence and taking account of the subjective circumstances of the offender. In order for this Court to intervene, it is not sufficient that one or all of us may have sentenced differently or less severely or given less or more weight to one or more factors: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 at [22], [53]; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321; Wong and Leung v The Queen [2001] HCA 64; (2001) 207 CLR 584; Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15].
5. In Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25] Gleeson CJ, Gummow and Callinan JJ said: "As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as 'manifest excess', or in a prosecution appeal, as 'manifest inadequacy'." [Citations omitted.]
6. In Kentwell v the Queen [2014] HCA 37; (2014) 252 CLR 601, the plurality judgment confirmed the foregoing approach at [35], where the High Court said: "In the case of specific error, the appellate court's power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed. By contrast, absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence." (per French CJ, Hayne, Bell and Keane JJ; see also Gageler J at [42] and Hayne J in AB v The Queen [1999] HCA 46; (1999) 148 CLR 111 at 160 [150]).
7. The applicant relies on the conclusion of the sentencing judge that the offence is below mid-range; the overlapping nature of the offences (particularly "accessing" and "possessing" child abuse material); the lack of prior offences; the guilty plea; the positive prospects of rehabilitation and the applicant's recent improvement in personal circumstances.
8. Reliance was also placed on cases that were said to be comparable and on statistics. A court, particularly at appellate level, must be very cautious of using statistics, or even (although to a lesser extent) comparable cases. Each offence and offender is unique. The legislative guidepost is the maximum sentence and, if one exists, any standard non-parole period.
9. Each of the factors relied upon by the applicant were matters that the sentencing judge considered. The offences were serious; the child pornography fell into the higher categories of depravity and there was a significant amount of it.
10. There is a difference in seriousness between gaining access and possessing child pornography. A person may gain access once and in some cases it may be a prurient but experimental interest. If material is downloaded and possessed, there is greater and easier access and generally it discloses more continuing and greater interest. They are distinct offences, which, in these charges, relate to different material.
11. Further a study of the comparable cases discloses head sentences that vary significantly and range between 18 months' and 5 years' imprisonment: R v Linardon [2014] NSWCCA 247; R v Porte [2015] NSWCCA 174; R v De Leeuw [2015] NSWCCA 183; and Fitzgerald v R [2015] NSWCCA 266.
12. General deterrence is a most significant factor in offences of this kind and the criminal conduct goes beyond access and viewing for personal use to the production and distribution of child pornography and involves a large number of children and large amounts of material.
13. No individual sentence involves manifest excess and the overall sentence is also within range. The submissions of accumulation were, for obvious reasons, repetitive of the submissions on manifest excess.
14. The complaint about fixing sentences for the State offences to operate first and then accumulating the Commonwealth sentences is wholly without merit. It is an appropriate method of overcoming some of the complexities created by the interaction of the State and Commonwealth sentencing regimes, made more complex by the casuistry in the Commonwealth Crimes Act.
15. As for the questions posed earlier in these reasons, as stated, they have not been raised by the parties. The overall sentence is appropriate and within range.
16. Any difficulty associated with commencing a Commonwealth recognizance release order before the commencement of a sentence for a term of imprisonment to which the release order relates is not expressly prohibited by s 47(4) of the Crimes (Sentencing Procedure) Act as the prohibition therein deals with parole, which in the Commonwealth legislation is a different concept.
17. In any event, the issue could easily have been resolved by fixing an aggregate sentence for the two Commonwealth offences. It is unnecessary to deal further with the issues.
18. I propose the following orders: 1. Leave to appeal granted; 2. Appeal dismissed.
19. BELLEW J: I agree with Rothman J. I also agree with the additional observations of Macfarlan JA.

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