Court of Appeal (Vic)|2013-06-14|Before: Mr J, Coghlan JA, Buchanan JA, Ashley JA

Burrell v The Queen [2013] VSCA 146 (14 June 2013)

DPP v Burrell (Unreported, County Court of Victoria, Judge Morrish, Date of Sentence 11 July 2012)

3 The appellant appeals against the sentence as set out below, which was imposed in the County Court by her Honour Judge Morrish on 11 July 2012.

Use carriage service to access child pornography [s 474.19(1) Criminal Code 1995 (Cth)]

Use carriage service to access child pornography [s 474.19(1) Criminal Code Act 1995 (Cth)]

12 months before expiration of sentence imposed on Charge 1

Use carriage service to access child abuse material [s 474.22(1) Criminal Code Act 1995 (Cth)]

6 months before the expiration of sentence imposed on Charge 2

Use carriage service to make available child abuse material [s 474.22(1) Criminal Code Act 1995 (Cth)]

Knowingly possess child pornography [s 70(1) Crimes Act 1958 (Vic)]

5 years and 3 months' imprisonment with a non-parole period of 3 years 6 months

Registered as a sex offender and required to report for life pursuant to s 34(1)(c)(iii) of Sex Offenders Registration Act 2004.

4 The appellant is 33 years' old. He is married with three children and two step-children. His children and one of his step-children live with him and his wife. He left school at the age of 15 and has worked consistently since then, most recently as a licensed security guard. Following the charges being laid, the appellant was forced to live apart from his family and had limited access to his children. The other matters personal to the appellant are outlined and dealt with in the grounds below.

5 Although her Honour attached the Prosecution Opening to her sentencing remarks, she included a brief summary of the appellant's offending which will suffice for present purposes.[1]

[By] way of summary, you used the internet to download some 5,355 images, 816 videos, and eight documents of child pornography. In addition, you downloaded seven images and five videos of child abuse material. The total number of downloaded materials is 6,191. The material that you downloaded ranges in depravity at both ends of the spectrum. At the lowest end were images and videos depicting children posing in erotic positions and at the upper end were images and videos depicting sadism, bestiality, humiliation or torture. As I have said, the Crown opening contains greater detail of your offending. After downloading the materials, you checked the vast majority of it and made it available for others to use. You shared and exchanged material. Charges 1 and 2 are referable to all of the material that you accessed and made available except for the child abuse materials. Charges 3 and 4 concern only the accessing and making available of child pornography involving child abuse materials. These charges cover seven images and five videos depicting children aged between three months and eight years. Those children appear to be distressed and crying. The material is highly disturbing and includes a toddler repeatedly attacked by a cobra, a female child in painful restraints who appears to be screaming in pain and a video of a baby being raped into unconsciousness. Charge 5, the State charge, covers your knowing possession of all of the child pornography materials covered in Charges 1 to 4, but is confined to the date that police found those materials in your possession, namely, 14 September 2011. The period of offending otherwise covers almost one year, from 20 September 2010 to 13 September 2011.

6 In the written response on behalf of the respondent, on this appeal, the offending was characterised as follows:[2]

The Applicant's offending was objectively serious. It involved accessing, possessing, and distributing child pornography. The children portrayed in the material were as young as three months old. 70% of the videos involved penetrative sexual activity between adults and children. 105 images, 9 videos and 1 document were classified as belonging to the most depraved category, namely material that depicts sadism, bestiality, humiliation and torture. The Applicant also accessed and distributed images and videos depicting child abuse.

7 On 11 April 2013 the appellant was given leave to appeal on the following grounds:

The learned sentencing judge erred in failing to have appropriate regard to current sentencing practices.
The total effective sentence and non-parole period were manifestly excessive in light of:

a) the applicant's co-operation and early plea of guilty;

b) the volume and nature of the child pornography material;

c) current sentencing practice;

the added burden of imprisonment and incentive for rehabilitation arising from the circumstances of the applicant's family.

8 In support of the ground counsel for the appellant referred the Court to a number of cases. Many of them were appeals by the Director of Public Prosecutions which were unsuccessful. Such cases are of little assistance in determining current sentencing practices because of the proper constraints which operate on appeals of that kind.

9 In R v Pantelic[3], the appellant alleged both specific error and manifest excess regarding the sentence imposed and was unsuccessful.

10 In R v Fulop[4] the appeal succeeded and his sentence was reduced to two years six months with a non-parole period of two years after a finding that the intended sentence of four years with a non-parole period of three years was manifestly excessive. It was an intended sentence because of specific sentencing error in the imposition of sentences on a combined Federal and State presentment.

11 In DPP v D'Alessandro[5], an appeal by the Director of Public Prosecutions was successful. At that time the principle of double jeopardy, unaffected by later statutory amendments, applied to appeals of that kind. It was the only case referred to in which charges were laid relating to child abuse material. The material may have been more extensive, but D'Alessandro was sentenced to a total effective sentence of three years and to be released on a recognizance release order after two years. The maximum term of imprisonment for the Criminal Code offences which D'Alessandro faced was 10 years. It is not a case in all the circumstances from which the appellant could get much, if any, assistance.

12 It is important to note, however, that in all of those cases the maximum term of imprisonment for the offences under the Commonwealth Code was ten years. In this case the maximum was 15 years.[6] In all the circumstances, there is nothing in the ground and I would dismiss it.

13 The matters relied upon in support of the ground are set out above under sub-paragraphs (a) to (d) of the ground.

14 It has long been accepted that what Winneke P said in R v Boaza[7] conveniently states the principle to be applied when dealing with this ground.[8]

In the absence of specific error it is, of course, not an easy task for an applicant to demonstrate to an appellate court that the sentencing discretion has miscarried on the ground that the sentence imposed is a manifestly excessive one. It is trite to say that before an appellate court can interfere it would need to be persuaded that the sentence imposed by this very experienced judge was wholly outside the range of sentencing options available to him.

15 The learned sentencing judge afforded counsel for the appellant every opportunity to provide material on the plea on four separate occasions.

16 I will deal with each of the matters raised on behalf of the appellant.

a) The applicant's co-operation and early plea of guilty.

17 Her Honour said, under the heading 'Pleaded Guilty',[9]

You have pleaded guilty and this is an important matter to be taken into account in your favour. A guilty plea, no matter why or when it is entered, must almost always attract a sentencing discount. In assessing the weight to be given to your guilty plea, I take into account:

(i) You indicated your intention to plead guilty at the earliest opportunity.

(ii) You are entitled to a statutory discount because of your plea.

(iii) You have avoided the cost of a trial.

(iv) There is social utility involved in your plea.

(v) Your plea is consistent with your cooperation with police. You readily volunteered your computer to the police and facilitated access to your passwords.

18 No separate argument was advanced in support of this contention and the applicant did not demonstrate, by reference to what she said, that Her Honour did not take the plea into account appropriately.

b) The volume and nature of the child pornography material

19 Counsel submitted that the sentence is 'high in the range.' That submission suffers from the difficulty that the highest individual sentence was two years' imprisonment (charges 1 and 2) and that no complaint is made about the individual sentences. Given that the maximum sentence is 15 years, and having regard to all the circumstances, those sentences should be regarded as moderate. The quantity of material was quite large and some of it was in the worst category. Although the material did overlap to a degree, her Honour dealt with that in the manner in which she ordered accumulation. It was submitted on behalf of the appellant that it is the accumulation of the sentences which made the head sentence and non-parole period manifestly excessive.

20 Some accumulation was needed in relation to charge 2, which involved making child pornography material available to others via a carriage service. Charges 3 and 4 involved accessing and making available child abuse material. The volume of material was significantly less in relation to those charges. The accumulation of 6 months charge 3 is moderate in the circumstances. It should be noted that no accumulation was imposed with respect to charge 4, likewise charge 5, notwithstanding the fact that the appellant was sentenced on charge 5 as a serious sexual offender. Ordinarily a presumption in favour of accumulation would apply to that charge.[10]

21 I have already dealt with this consideration under ground 2.

The added burden of imprisonment and incentive for rehabilitation arising from the circumstance's of the applicant's family

Your offending has impacted upon your whole family. I have already said that you were forced to separate from your wife and only have limited and supervised contact with your children. In addition, you have lost your security licence and your job. You can no longer provide the financial support on which your family hitherto depended. It is likely that your family will soon be evicted from their home.

Impact of offending on your family - s.16A(2)(p) Crimes Act 1914

On 13 June 2012, Mr McNally appeared on your behalf. At his request, I adjourned the matter to give you the opportunity of presenting evidence that might demonstrate the existence of exceptional circumstances, under s.16A(2)(p). Today, Ms Tittensor appeared on your behalf, and Exhibits 8, 9, 10, 11 and 12 were tendered, without objection. These documents show that the physical and emotional welfare of your step-daughter and daughter have been adversely affected. Your daughter has suffered an increasing number of episodes of fitting. Your step-daughter has demonstrated disturbing signs of self-harm, anxiety and stress. She feels guilty about your offending. She is of course in no way to blame for your actions. Thankfully, she is receiving counselling. Your step-daughter has also become the victim of taunts at school and on social network sites because of your misconduct. Her school attendance has dropped to an unsatisfactory level. I have said that your wife is now ten weeks pregnant, and she will endure this pregnancy without your support. I was also told of your son's medical issues, although there is no firm diagnosis as yet.

Ms Tittensor quite properly conceded that although the material does demonstrate that members of your family are suffering hardship and are likely to continue to do so as a result of your imprisonment, the circumstances, neither individually nor in combination are sufficient to justify the description 'exceptional circumstances' as required by s.16A(2)(p). See also R v Markovic. However, Ms Tittensor submitted that these matters increase your stress levels, and will make your period of incarceration more onerous. Further, she submits that you will have added incentive to stay out of further trouble, and that this reduces the need to give weight to specific deterrence in this sentence.

The matters relied upon by appellant's counsel on the plea

... your counsel acknowledged that a term of imprisonment to be served immediately is the only appropriate disposition. She emphasises the significance of ─

your early guilty plea;
your immediate cooperation with the police;
the lack of sophistication in your offending, the fact that no financial reward was sought or obtained by you;
that you have a demonstrated commitment to counselling;
you have gained insight;
you feel guilty and ashamed of the trouble you have caused your family;
you have lost your livelihood;
your lack of relevant prior convictions;
the unlikelihood of your re-offending; and
the impact upon you of additional punishment, knowing that what you have done has adversely impacted upon members of your family.

The irony of course is that far from achieving your stated goal of protecting your family, you have caused them additional harm.

24 I am satisfied that her Honour set out those matters in the way that she did because she was intending to give weight to them, and that she did so.

25 The appellant had claimed in his record of interview and on the plea that his reason for accessing the material was to make sure that it contained no images of either his children or step-children. Her Honour rejected that explanation. It follows that the offending was unexplained and that fact had to be taken into account when assessing the appellant's prospects of rehabilitation and remorse.

26 The sentencing remarks of her Honour were careful and detailed. There is nothing about them which bespeaks the errors complained of.

27 It was submitted on behalf of the respondent that the sentences were within the range and that there is no error in the sentence. The respondent also drew attention to the increased maximum penalty.

28 It does not seem to me that in having regard, as much as possible, to the matters which were said to have not attracted sufficient weight in mitigation, her Honour imposed a sentence which could be said to be wholly outside the range.

29 I would not allow the appeal on this ground and I would dismiss the appeal.

[1] DPP v Burrell (Unreported, County Court of Victoria, Judge Morrish, 11 July 2012), [3] ('Sentencing remarks').

[2] Written case for the respondent, [8.4].

[6] The maximum term of imprisonment was increased by the Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 on 15 April 2010.

[8] At [42], see also R v Abbott (2008) VSCA 219, [13].

[10] Section 6E of Sentencing Act 1991.

[11] Sentencing remarks, [29]-[31].

Offenders Registration Act 2004

Legislation Amendment (Sexual Offences Against Children) Act 2010

Burrell v The Queen [2013] VSCA 146

At a glance

Court

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Judgment (63 paragraphs)

Burrell v The Queen [2013] VSCA 146 (14 June 2013)

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Legislation Cited (3)

Cases Cited (3)