Chesworth v R [2023] NSWCCA 115 | Case summary

Jurisdictional Limit of the Local Court

As can be seen from the foregoing table, each of the offences of disseminating and possessing child abuse material were the subject of indicative sentences of 2 years and 6 months each. As such, those indicative sentences were beyond the jurisdictional limit imposed on the Local Court. As stated, the maximum term of imprisonment that the Local Court may impose for an indictable offence is 2 years or, if it were lower, the maximum term of imprisonment for the offence. [3] Further, an aggregate sentence in relation to matters dealt with by the Local Court cannot exceed 5 years. [4]
As a consequence, the fixing of an indicative sentence of more than 2 years by the District Court for an offence that is before the Court pursuant to the terms of s 166 is taking into account a consideration that is against principle and irrelevant. There is no limitation on the aggregate sentence that may be imposed (other than the limitation imposed by s 49(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), being the sum of the maximum periods of imprisonment for each of the offences subject to sentence).
However, in fixing an aggregate sentence, a sentencing judge is required to indicate and record the sentence that would have been imposed for each offence had separate sentences been imposed. [5]
Because the discretion exercised by a sentencing judge to impose an aggregate sentence is informed by the indicative sentences that have been expressed and recorded, if a sentencing judge fixes an aggregate sentence, taking into account an indicative sentence that is beyond that which could have been imposed, the sentencing judge would be taking into account an irrelevant consideration or applying a wrong principle. In fixing the aggregate sentence imposed upon the applicant, the sentencing judge in this case took into account two indicative sentences that were unavailable and beyond that which could have been imposed. As a consequence, error has been disclosed. It should be pointed out, as earlier stated, that the Crown concedes error on this ground.
Because error has been disclosed, it is necessary for the Court to resentence the applicant. [6]

Facts

As a result of the plea of guilty to each of the offences, there are agreed facts upon which the learned sentencing judge relied and which are summarised in the remarks on sentence. In short, on 4 March 2021, the applicant took his computer to a repair technician, who discovered that it contained child abuse material. A Police investigation was initiated.
During the course of the investigation a search warrant was issued, and the Police searched the applicant's premises. During the course of that search Police discovered an unregistered "Gamo" .177 Calibre Air Rifle as well as two bags of methylamphetamine, weighing 4.89g and 1.91g respectively.
The Police also seized electronic devices. An investigation of those devices uncovered that the applicant had been maintaining a sexual relationship with a co-offender, Mr Harrison. The applicant and Mr Harrison had exchanged child abuse material depicting prepubescent males. These were exchanged by use of an encrypted application, "Telegram". They also used methylamphetamine together.
The Police also identified that the applicant had shared child abuse material with other "Telegram" users and chat room members. The sentencing judge confirmed that the offender's phone contained over 13,000 images, of which 60% were Interpol Baseline Category 1 child abuse material. Similarly, the phone contained 3000 videos, 30% of which were Interpol Baseline Category 1 child abuse material.
Police, during the course of the investigation, also discovered that the applicant had possession of, and distributed, videos and images of the applicant participating in sexual acts with a dog owned by Mr Harrison. The acts involve the dog licking the applicant's anus as well as penetrating the applicant's anus with its penis. The applicant engaged in communication with various users of "WhatsApp" about this activity, on numerous occasions.
Even though it is unnecessary, in circumstances where error has been identified, for the applicant to satisfy the Court that the sentence imposed was unjust or plainly unreasonable, the submissions provided to the Court on manifest excess inform, in part, the discretion to be exercised by the Court in re-sentencing. Because each of the charges were the subject of a plea of guilty at or before committal, each has been the subject of a 25% discount, which was applied to the indicative sentence by the sentencing judge. It is appropriate to apply the 25% discount to the indicative sentence so that the aggregate sentence is informed by the lower indicative sentences that are applicable. I too apply that discount.
The applicant complains about the conclusion of the sentencing judge as to the objective seriousness of the bestiality offence. The submission is that the objective seriousness of that offence should be in the low range, and not "below the mid-range", which was the assessment of the sentencing judge. It is for this Court, subject to the rules of procedural fairness, to determine for itself the objective seriousness of the offence in question.
As submitted by the applicant there was no gratuitous cruelty to the dog involved in the bestiality acts. While the applicant takes issue with whether one of the acts described in the foregoing facts was, in and of itself, an act of bestiality, that distinction is only marginally relevant. A guilty plea has been entered to an act of bestiality. There is only one charge and the act involves both the licking of the applicant's anus and the penetration. The Court takes into account the whole of the circumstances of the offence.
The offence of bestiality is not concerned wholly or principally with the infliction of violence or cruelty. If the applicant were to have inflicted gratuitous cruelty on the animal, apart from the offence itself, that would be an aggravating factor, pursuant to the provisions of s 21A(2)(f) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
Offences against animals, as distinct from humans, involve slightly different criteria. First, they take into account the vulnerability of a domestic animal and their incapacity, usually, to consent or refuse to engage in particular conduct. As a consequence, bestiality is difficult to compare, in terms of seriousness, and the factors associated with its objective seriousness, with offences against human beings.
The offence for which the Court is required to indicate a sentence involved penetration, albeit by the animal, and required the animal to give sexual gratification to the applicant.
For those unfamiliar with the process of sentencing, a sentencing judge is required to assess the objective seriousness of an offence, bearing in mind the range of conduct that may occur and would give rise to such an offence. Once the objective seriousness of the offence is assessed, the Court is required to take into account the subjective circumstances of the offender and engage in a process, referred to as "intuitive synthesis" or "instinctive synthesis", to impose a sentence, or in the case of an aggregate sentence set out indicative sentences that seek to achieve the purposes of sentencing.
The purposes of sentencing are the subject of legislative prescription, in relation to state offences which prescription reflects the common law. The purposes of sentencing are to ensure that the offender is adequately punished for the offence; to prevent crime by deterring the offender and other persons from committing similar offences; to protect the community from the offender; to promote the rehabilitation of the offender; to make the offender accountable for his actions; to denounce the conduct of the offender; and, to recognise the harm done to the victim of the crime and the community. [7] Those prescribed purposes reflect the common law as adumbrated by the High Court. [8]
In the offence of bestiality, general deterrence looms large as does condemnation of the conduct. Often the purposes of sentencing point in different directions, and in themselves, may be conflicting.
Each of the purposes are guideposts to the appropriate sentence to be imposed and/or indicated as are the maximum sentence and, if there be one, any standard non-parole period.
I do not consider that the assessment of objective seriousness of this offence is anything less than below the mid-range and I reject the criticism by the applicant of the learned sentencing judge's assessment of objective seriousness. However, it is noteworthy that the Court, having accepted that error has occurred, is not now concerned with the correctness or otherwise of the sentencing judge.
There is one exception to that proposition. Given that no party argued that the objective seriousness should be more than that assessed by the learned sentencing judge, the Court, were it to assess objective seriousness at a level higher than "below mid-range", might be denying the applicant natural justice. I assess the bestiality offence as having an objective seriousness of just below mid-range.
Even so, the indicative sentence recorded by the learned sentencing judge does not reflect an assessment of objective seriousness that is just below mid- range. Rather, it reflects an objective seriousness that is at the lower end, but not the lowest end of the range, given that the maximum sentence is a 14-year sentence of imprisonment.
Further, the rarity of bestiality cases leads to the conclusion that no "range" is evidenced by previous sentences imposed. The applicant relied upon comparison with the sentence imposed in the District Court in R v PW [9] in which the District Court imposed a sentence of 12 months for bestiality in circumstances where the conduct involved penetration on a dog and a further 18 months relating to an extended, recorded sex act with another dog and the evidence indicated the offences were not isolated.
As has been stated by this Court on a number of occasions, previous sentences do not indicate a range necessarily, they indicate that which has been imposed in the past. When such a limited number of offences is involved, it is impossible to consider past offences setting a range of sentences that set the boundaries of a sentence to be imposed. Even more so is that the situation where the comparison is made with one other offender and one other sentence imposed.
In relation to the possession and dissemination of child-abuse material, even though dissemination and possession involve one offence each, the conduct to be taken into account in the offence, in relation to dissemination, involved three separate episodes of dissemination and the possession was for a substantial period of time. Real and actual children were involved in the creation of the material; the content was extremely serious; the volume of material was large; and the applicant possessed it to use and distribute. Each of those matters informs the seriousness of the offence in question.
It has to be said, ameliorating the foregoing, that the material was distributed only to two other users; the applicant was not paid for the material; and the attempt to plan the storage and sharing of the material were unsophisticated. I consider these offences serious and at least above mid-range.
Again, there has been no challenge by the Crown to the sentencing judge's assessment and to alter that assessment without informing the applicant may be to deny him the capacity to present a case to different effect. I consider the child abuse offences at least above the mid-range but for the reason just given, will confirm the assessment of the sentencing judge. Were I sentencing afresh, bearing in mind the assessment of objective seriousness I have just confirmed, as well as the subjective material, but ignoring the jurisdictional limit of the Local Court, I would impose or indicate a sentence that was significantly greater than 2 years' imprisonment. As a consequence, I would have set a sentence that would have been slightly more than 3 years, but, applying the 25% discount and then on account of the regime to which reference has already been made, I set an indicative sentence that is equal to the 2-year jurisdictional limit for each of these offences.
Dealing next with the drug offence, I have no basis on which to cavil with the assessment of the sentencing judge that the drugs were used for personal use and for sharing with his wife and a friend. Nevertheless, there was actual supply and I do not accept that, in the context of dealing with all of the offences with which the sentencing judge was faced and with which this Court is faced, a non-custodial sentence for the drug offences would be appropriate. I accept that there is no evidence of a commercial or profit motive in the supply and that the amount of drugs involved was only slightly above that necessary to constitute an indictable quantity. This is a factor upon which the applicant relies in submitting that the sentence indicated in relation to the drug supply offence is more than was appropriate.
It is correct that the amount of drugs involved was only just above the indictable quantity. Nevertheless, the maximum sentence for a small quantity is 2 years' imprisonment and the indicated sentence, after the discount for the plea of guilty, was 12 months' imprisonment.
In relation to the drug supply offence, it is an offence of supply an indictable quantity of methylamphetamine. I take into account to the credit of the offender that it was for his own use, for the use of his wife to whom he was supplying and the use of a friend to whom he was also supplying. I consider that the offences are in the lower end of objective seriousness.
Lastly, I deal with the firearm offences. In this regard the offence for which the sentence is to be imposed is the possession of an unauthorised firearm, which carries a maximum sentence of 5 years' imprisonment. In dealing with that sentence I take into account the two offences on the Form 1, being the possession of an unregistered firearm and the failure to keep a firearm safely.
In my view, there has historically been leniency in relation to firearm offences that is unwarranted. Nevertheless, in the scheme of firearm offences that would give rise to an offence under s 7A(1) of the Firearms Act 1996 (NSW) this is at the lower end of the range.
The firearm was, as indicated above, an air rifle and did not use bullets or gunpowder. Further, the firearm was not, on the material before the Court, connected with any criminal enterprise.
It is necessary for the Court to deal with the subjective circumstances of the offender/applicant. Prior to this offending, the applicant had an unblemished record. He was not known to Police nor the subject of complaint to Police. The applicant is entitled to the leniency afforded a first offender.
In dealing with child abuse offences, such leniency should be qualified on two accounts. First, often such offences occur over a significant period of time and require general and specific deterrence to be given significance. Secondly, in relation to child abuse material, often the lack of a record by the offender is a matter that facilitates easier access to the material in question.
The applicant was, at the time of the application for leave to appeal, 78 years of age. The report of Dr Samuels provides some information on the circumstances that led the applicant to use drugs, which arose from the stress associated with the difficulties in his marriage. It is unnecessary to recite those difficulties for the purposes of this exercise.
The psychiatric report of Dr Samuels notes that the applicant has mild depressive and anxiety symptoms and he diagnosed the applicant as meeting the DSM-5 diagnostic criteria for an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He also meets the criteria for Substance Abuse Disorder involving methylamphetamine and for Paedophilic Disorder and for Other Specified Paraphilic Disorder (Zoophilia).
While the applicant had some mild cognitive deficit, Dr Samuels considered that he performed appropriately and the mild impairment related to memory, language and attention were of a relatively minor nature possibly relating to previous use of illicit substances, but not interfering with his reasonable cognitive functioning.
I take into account all of the foregoing to the credit of the applicant. I consider his prospects of rehabilitation are reasonable and I take into account his advanced age. I also take account of the material produced on appeal and to be taken into account if the court were to resentence. He has conducted himself well in prison and is classified as Category 2 (minimum). He is employed in prison as a sweeper and is in the process of completing an Occupational Health & Safety course in prison and the course "Seasons for growth and the positive lifestyles program", which was completed prior to his original sentence. He has also completed external courses through two Christian organisations being Crossroads and Eamaus. He is currently medicated for depression and has been diagnosed, while in prison, with atrial fibrillation. I also take account of the onerous conditions of incarceration referable to COVID, which the evidence details.
There are references from the chaplaincy team in prison which are to the applicant's credit. I also take into account references that were provided at the original sentencing hearing. It must be said that the applicant was a person of good behaviour who engaged in charitable works prior to his offending.
I consider that the only appropriate sentence is a full-time custodial sentence and I, like the sentencing judge below, would impose an aggregate sentence. As a consequence, I need to indicate the sentences I would otherwise have imposed and I do so by reference to the following table: Offence Maximum Indicative penalty Sentence Substantive Offence Bestiality - s 79 Crimes Act 1900 14 years 2 years, 6 months S 166 Offences Possess unauthorised firearm - 5 years 12 months s 7A(1) Firearms Act 1996 (taking into account the two offences on the Form 1) Supply prohibited drug more than indictable quantity - s 25(1) Drug Misuse and Trafficking Act 1985 15 years 12 months Disseminate child abuse material - 10 years 2 years s 91H(2) Crimes Act 1900 Possess child abuse material - 10 years 2 years s 91H(2) Crimes Act 1900

Chesworth v R

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Judgment (7 paragraphs)

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