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[2017] VSCA 251
Court of Appeal (Vic)
2017-09-14
Mr J, Tate JA, Kyrou JA, Hansen JA
Original judgment source is linked above.
DPP (Cth) v Dennis [2016] VCC 1775 (Judge Lawson)
CRIMINAL LAW - Appeal against sentence - Using a carriage service to access child pornography and knowingly possessing child pornography - Total effective sentence of 4 years and 6 months' imprisonment with non-parole period of 2 years and 6 months - Whether judge erred in finding the offending was 'escalating' and objectively 'very serious' - Whether sentence manifestly excessive - Whether judge failed to apply limbs 1 and 4 - Appeal allowed - Resentenced to 3 years and 9 months' imprisonment with a non-parole period of 2 years.
Ms A Pavleka, Solicitor for Public Prosecutions (Cth)
1 On 26 April 2016, the appellant pleaded guilty to charges of accessing child pornography using a carriage service, knowingly possessing child pornography and failing to comply with reporting obligations under the Sex Offender Registration Act 2004 ('SORA'). On 16 November 2016, the appellant was sentenced by a judge of the County Court as follows:[1]
Commence 1 year after commencement of sentence on charge 3
Fail to comply with reporting obligations SORA s 46(1)
Knowingly possess child pornography Crimes Act 1958 s 70(1)
2 On 4 April 2017, Tate JA granted the appellant leave to appeal against sentence on three grounds. The grounds were: that the judge erred in finding that the offending on charges 1 and 3 was objectively very serious; that the judge erred in finding that the appellant's offending was escalating; and that the sentences on charges 1 and 3, and the total effective sentence, are manifestly excessive.
3 At the hearing of the appeal, the appellant sought, and was granted, leave to rely on a fourth ground, namely, that the judge failed to apply limbs 1 and 4 of the principles set out in R v Verdins.[2]
4 For the reasons that follow, the appeal will be allowed and the appellant will be resentenced as set out at [119] below.
5 On 10 December 2014, numerous electronic and other items containing child pornography were seized from the appellant's home pursuant to a search warrant. The seized material included: five manila folders containing written text of sex involving children; two plastic folders containing printed pictures of child pornography; hard disc drives; a PC tower; USB storage devices; a digital camera; and laptop computers (charge 3 - knowingly possess child pornography).
6 The material was categorised in accordance with the Australian National Victim Identification Library ('ANVIL') classifications as follows:
Level 1 - Depictions of children with no sexual activity
Level 2 - Solo masturbation by a child or non-penetrative sex acts between children
Level 3 - Non-penetrative sexual activity between children and adults
Level 4 - Penetrative sexual activity between children and adults
Level 5 - Sadism, bestiality or humiliation or child abuse
Level 6 - Anime, cartoon, comics, and drawings depicting children engaged in sexual poses or activity
7 The videos ranged in length up to approximately 35 minutes. One video depicted an adult male anally penetrating a boy of approximately six years of age while he was unconscious. Most of the children in the material were of a prepubescent age, with some as young as toddlers also being depicted.
8 The appellant and his male partner, Wei Li, were arrested. Mr Li was subsequently released without charge. The appellant engaged in a recorded interview and made admissions. During the interview, he relevantly said the following:
(a) He had obtained the material from various websites and emails over approximately five years.
(b) He had been viewing material of two young males lying on a bed, one naked, approximately one hour before the search warrant was executed.
(c) He knew that the legal implications of owning child pornography were 'really bad' and said that 'you can get up to a long prison sentence'.
(d) When asked why he accessed child pornography he stated: 'I don't know. I can't explain it. Just something in my head [thinks] it's good ... When I saw it, I think it looks good'. He said the violent images '[don't] do anything' but that when 'it's just a naked male ... I get a good feeling ... inside of me'.
(e) He had tried to not download child pornography before but he said it's 'just like smoking' and he 'can't give it up'.
(f) He said that it is not a sexual addiction, just an addiction that makes him 'feel good inside'. He said: 'I can't explain why it makes me feel good inside'.
(g) He did not think that he could stop accessing child pornography without support.
9 The total number of files accessed by the appellant during the charge period, namely, 15 April 2010 to 10 December 2014, were as follows (charge 1 - access child pornography using a carriage service):
11 The appellant failed to comply with his reporting obligations between 20 August 2014 and 10 December 2014 by failing to report various email addresses, his use of Facebook or other social network sites, and his employment with his lawn mowing business 'Green Clippings' (charge 2 - failure to comply with reporting obligations).
12 During his recorded interview, the appellant admitted to using about 12 email addresses and said that he did not notify the Sex Offenders Registry because he only used them for job searching and 'stuff like that'. He said that he used Facebook and that he did not notify the Sex Offenders Registry because he did not want them to have too much information about what he was doing online, including illegal things. In relation to his employment with Green Clippings, he said that it was a company which he was going to try and get off the ground. He said he 'didn't think that was important' to tell the Sex Offenders Registry because 'it was only a one-off, or maybe a bit more than a one-off'.
13 The appellant was charged and remanded in custody following his arrest on 10 December 2014. He was released on bail on 10 March 2015.
14 The appellant is currently 46 years of age and was 45 years of age at the time of sentencing.
15 The appellant was educated to year 8 at Lake Illawarra High School where he struggled academically and socially. He identifies as homosexual and was bullied and ostracised at school as a result of his sexuality. When he was around 16 years old, he was assessed as having some learning difficulties. A neuropsychological report tendered on the plea confirmed that he suffered a significant head injury as a result of a motorbike accident at around that time.[3] He otherwise had a happy childhood.
16 Following school, the appellant completed numerous TAFE courses, including a bar course and a Certificate II in warehouse logistics. Throughout his adult life he was employed in sales, as a cleaner, and as a gardener.
17 The appellant was the second youngest of five children. In 2010, his older sister Colleen died at age 47. The appellant described her as the closest person to him in his life and he suffered significant grief as a result of her death.
18 The appellant's father died in around 2013. His mother is approximately 68 years of age and lives in New South Wales. He has some contact with her via telephone.
19 The appellant's most recent employment was for five years working as a cleaner at Stott's College. That employment ceased on 23 August 2014, after he was placed on the Sex Offenders Register. After his employment at Stott's College ceased, he was unemployed and received Centrelink benefits.
20 While he was on bail, the appellant lived with Mr Li. His intimate relationship with Mr Li of some six years ended as a direct consequence of the laying of the charges the subject of the proceeding. The appellant kept his consumption of child pornography secret from Mr Li. Mr Li remained supportive of the appellant and was present during the plea hearings. The breakdown of the appellant's relationship with Mr Li was akin, in terms of the appellant's degree of grief, to the death of Colleen.
21 The appellant has no history of illicit drug use or alcohol issues. He has a history of high blood pressure and high cholesterol and underwent operative treatment for testicular cancer in October 2015.
22 On 25 June 1993, at Wollongong District Court, the appellant was placed on a three year good behaviour bond for a charge of aggravated sexual assault. That matter related to an occasion when the appellant, at 21 years of age, engaged in consensual sexual activity with an 18 year old male acquaintance, whom he had met at a pub. The victim changed his mind and wanted to cease sexual activity, but the appellant persisted, resulting in a sexual assault and physical assault.
23 On 8 August 2003, at Hobart Court of Petty Sessions, the appellant pleaded guilty and convictions were recorded for four charges of possessing a child abuse product; two charges of reproducing a child abuse product; one charge of making a child abuse product; and multiple charges of dishonestly acquiring a financial advantage, uttering, forgery and contravening the conditions of a notice. According to the appellant, that offending involved him accessing images of naked males between seven and 80 years of age online at a library and either saving the images to a disc or emailing them to himself to save them onto his hard drive at home. The offences were committed between mid-2000 and early 2003, a period of nearly three years. The appellant was sentenced to nine months' imprisonment, partially suspended for three months on the condition that he be of good behaviour and commit no similar offences for a period of two years from his release from prison. Probation was to take effect upon his release from prison for two years with conditions he attend educational and other programs, as directed by the court or a probation officer.
24 At Launceston Court of Petty Sessions on 1 March 2004, the appellant pleaded guilty to a charge of 'expose person'. According to the appellant, the circumstances of this offending were that: he befriended a couple through a religious group and joined them and their nine or ten year old son on an outing to the beach; he was left to care for the boy while his parents went for a swim; and, as he stepped away to urinate, the boy followed him, and on seeing his penis, the boy started to cry and informed his parents. A conviction was recorded and the appellant was sentenced to a term of imprisonment of eight months. The finding of guilt for this charge meant that the appellant had breached the conditions of his probation and suspended sentence. A conviction was recorded for these breaches and a sentence of three months' imprisonment was imposed, to be served cumulatively with the term of imprisonment imposed on the 'expose person' charge.
25 At Hobart Court of Petty Sessions on 15 March 2005, the appellant pleaded guilty to various burglary charges, stealing, attempted burglary, unlawful possession of property, breach of bail conditions and two charges of possessing a child abuse product, for which he received a total sentence of two years' imprisonment, commencing on 16 January 2005.
26 The appellant was dealt with in Victoria on 26 November 2009 and 10 December 2009 at Heidelberg Magistrates' Court, for two charges of obtaining financial advantage in relation to a Commonwealth entity. A sentence of three months to be served by way of an intensive correction order was imposed and the appellant was ordered to pay compensation.
27 As a result of the previous convictions in Tasmania, the appellant was to be sentenced as a serious sexual offender in respect of charge 3.[4]
28 The appellant did not receive any treatment for his prior sexual offending.
29 The plea hearing was conducted on 26 April, 21 June, 16 August and 9 November 2016.
30 The appellant tendered a report dated 18 February 2016 from Jeffrey Cummins, a clinical and forensic psychologist. Mr Cummins described the appellant as having 'a very adolescent like interpersonal style' and presenting as 'quite a psychologically vulnerable person'. Mr Cummins formed the opinion that the appellant's presentation was consistent with him suffering from an Autism Spectrum Disorder, and that he was mildly anxious and moderately depressed. Mr Cummins said that there was no evidence of escalation of sexual offending and that the appellant had difficulty expressing remorse in relation to the current offending. Mr Cummins stated as follows:
In my opinion it is ... imperative [that the appellant] participate in a sex offender treatment program and I am aware he could be directed to participate in such a program either in custody or in the community. In my opinion he would be a psychologically vulnerable person within a custodial setting.
...
On the basis of my assessment of [the appellant], it is my opinion the risk of him engaging in any contact sexual offending is Low, whilst the risk of him committing further offending by way of viewing, downloading, or transmitting child pornography is Low-Moderate.
Based upon my assessment of [the appellant] his current mental health would inevitably be destabilised if he were now incarcerated, as he is concerned this could/would jeopardise his same sex de facto relationship.
31 A neuropsychological assessment of the appellant was completed by Mr Martin Jackson, a clinical neuropsychologist. On the plea, the appellant tendered Mr Jackson's report dated 9 August 2016 in which Mr Jackson concluded that it was highly likely that the appellant had a longstanding but mild 'discrepancy between his verbal and perceptual intellectual abilities' which strongly suggested the presence of two specific areas of brain damage in his left frontal lobe and his right temporal lobe. Mr Jackson considered the impairments were likely due to 'a traumatic brain injury sustained at age 16', and also stated that his presentation as 'somewhat immature' could also have been due to that accident which was highly likely to have affected his emotional development.
32 Mr Jackson noted that the appellant's offending behaviour started around the time of his motorbike accident and said that there may be a significant link between the injury he sustained as a result of that accident and learning disabilities, and his inability to learn from his errors over the past 30 years. However, Mr Jackson did not consider that the appellant had a disorder of impulse control or a condition that made him disinhibited or that his neuropsychological condition was of a severity where he would be unable to understand the wrongfulness of his actions. He then said the following:
In contrast, he clearly has a neurophysiological condition that affects his ability to make reasoned decisions and appropriate judgements. He is likely to miss information because of his slowed processing speed, which means that he may not take all information into consideration when making decisions. He is overwhelmed easily and does not take a lot of information in, which is also going to affect his ability to hold on to relevant information when making decisions.
His thinking is black-and-white and he will have difficulty seeing other potential solutions (other than the one he is thinking of) and ... his ability to think about possible outcomes or consequences of his actions will be impacted on and impaired. People with this type of profile have a high probability of reverting back to previously learnt behaviour and this does appear to be the case with [the appellant].
From a neuropsychological perspective, I am of the opinion that his neuropsychological condition would have a significant impact on his ability to remember and follow any obligations that are put on him and I believe that it is his neuropsychological condition that contributes to his breaches of his orders, including those related to the alleged sex offender.
...
In terms of the offending with regard to the child pornography, his neuropsychological condition is not related to that other than he does have a condition that makes it somewhat difficult for him to learn from his mistakes. The actual issue of child pornography/paedophilia is not related to his neuropsychological condition.
33 In relation to the impact of imprisonment on the appellant, Mr Jackson said the following:
[The appellant's] conditions will clearly make imprisonment or any other penalty that the Court may impose difficult for him. He will be slow to process what people are saying to him in prison, he will be overwhelmed and miss detail and he will have difficulty learning routines, etc. This would place him at significant risk of 'getting into trouble' from staff and other prisoners for not learning the rules and routines of the prison system. Because of his poor verbal executive skills, he would certainly miss any nuances [in] what people are saying to him and will take people very literally. He could potentially be at risk of being used by other prisoners to do their 'dirty work' because of his literal thinking.
[The appellant] would certainly be at risk of exacerbating any current mood condition that he has if he is sent to prison. ... He does have a history of mood issues and therefore will be at greater risk than the average person of an exacerbation of mood (such as depression and anxiety) with a further period of incarceration.
34 Mr Jackson was of the opinion that 'it is unlikely that treatment per se is going to have a high success rate (certainly not talking therapy), given [the appellant's] cognitive impairments'. He said that there must be considerable concern about the appellant's prospects of rehabilitation and that despite his desire to return to psychological therapy for his sex offending behaviour, Mr Jackson 'would have concerns about his actual ability to benefit from this'. He said that talking therapy with the appellant would be 'a very slow process' with 'no guarantee that he actually will be able to learn new ways of thinking and behaviour'. He concluded as follows:
Left to his own devices in the community, from a neuropsychological perspective, there is a reasonably high probability of returning to previously learnt behaviour, given his difficulties learning new behaviour. The best way this can be managed is by having a supportive structure around him. If he was not to return to live with his former partner, then it may well be better for him to live in supported accommodation rather than just live on his own.
...
'Treatment' would best be provided in the form of structure and support from organisations and others in the community to assist him in his day-to-day functioning, meeting his obligations and potentially try to learn new skills simply by learning new routines with repetition.
35 The appellant was also assessed by Dr Kirsten Clayer, a forensic psychiatrist with Forensicare, at the request of the judge. In a report dated 6 June 2016, Dr Clayer stated that the appellant meets the criteria for a diagnosis of 'Paedophilia-sexually attracted to males according to the Diagnostic and Statistical Manual of Mental Disorders' and considered that he would benefit from a sex offender treatment program. Dr Clayer assessed the risk of the appellant reoffending by downloading and viewing child pornography as 'moderate to high'. She stated the following:
[The appellant's] language was immature for his age and he has difficulty in regulating his emotions and behaviour in an age-appropriate manner. ...
[The appellant] appears to have suffered from mild to moderate depression and anxiety intermittently, particularly following the death of significant people in his life. He has used child pornography as a means to regulate his emotions.
36 In two pre-sentence reports dated 25 October 2016 and 4 November 2016, the appellant was assessed as having a high risk of reoffending. The report dated 25 October 2016, which was prepared by Belinda Pastuovic, a leading community corrections officer, assessed the appellant as suitable for a community correction order ('CCO').
37 The report dated 4 November 2016 was authored by Tracey Allen, a senior clinician at Corrections Victoria. She assessed the appellant as suitable for sexual offence specific treatment programs either in the community or in custody. She stated that there was evidence of 'chronicity of sexual violence' and of 'diversity of sexual offending' but 'no evidence to support endorsement for ... escalation in [the appellant's] sexual offending'. She also noted that the appellant does not have appropriate and adaptive coping strategies to deal with life stressors and has 'serious problems with self-awareness'.
38 Ms Allen stated the following in relation to the appellant's progress with sex offender treatment:
[The appellant] reported that he saw ... a community based psychologist to begin to engage in sex offender treatment. In terms of this recent treatment, [the appellant] was able to articulate the concept of harm caused to the children depicted in [the pornographic materials] and he also referred to a visual aid used by the psychologist to explain the cycle of offending. [The appellant] stated that this was starting to help him understand what happened before he offended and what happened afterwards. Given [the appellant's] cognitive limitations, this is an impressive amount of learning to occur after only five one-hour sessions.
39 The appellant also tendered two similarly worded letters from Mr Li dated around 20 April 2016. In the letters, Mr Li described himself as a close friend of the appellant. He said that the appellant was very upset and stressed about the charges, deeply regretted and was sorry for what he had done, and was an honest, loyal person with a warm heart and integrity. He stated that he supported the appellant and would help him to have a regular life and contribute to society.
40 On the plea, the appellant accepted that a term of imprisonment was appropriate in the circumstances of this case, but submitted that that term may be accompanied by an appropriately conditioned CCO.[5] He specifically submitted that his offending had not escalated over time. He relied on Verdins limb 1 but disavowed reliance on limb 4.[6] The prosecution submitted that, having regard to the serious nature of the appellant's offending, an immediate term of imprisonment was required.
Principles relating to sentencing in child pornography cases
41 In Director of Public Prosecutions (Cth) v Garside,[7] Redlich and Beach JJA set out in detail the principles relevant to sentencing for child pornography offences and adopted the following summary:
Appellate courts throughout Australia have consistently stated that the following propositions apply to sentencing for child pornography offences:
(a) Unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted ...
(b) The objective seriousness of the offending is ordinarily determined by reference to the following factors:
(i) the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;
(ii) the number of items or images possessed;
(iii) whether the material is for the purpose of sale or further distribution;
(iv) whether the offender will profit from the offence;
(v) in the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised;
(vi) the length of time for which the pornographic material was possessed ...
(c) General deterrence is the primary sentencing consideration for offending involving child pornography ...
(d) Less or limited weight is given to an offender's prior good character ...
(e) Offending involving child pornography occurs on an international level and is becoming increasingly prevalent with the advent of the Internet as a means of allowing people to access and obtain child pornography ...
(f) Offending involving child pornography is difficult to detect given the anonymity provided by the Internet ...
(g) The possession of child pornography material creates a market for the continued corruption and exploitation of children ...
(h) There is a paramount public interest objective in promoting the protection of children as the possession of child pornography is not a victimless crime - children are sexually abused in order to supply the market ...
(i) The fact that an offender does not pay to access a child pornography website or was not involved in the distribution or sale of child pornography does not mitigate the offending ...[8]
42 In relation to the formulation of appropriate sentences for charges 1 and 3, the judge said that she was guided by legislative sentencing principles and the principles expressed in Garside.[9]
43 The judge described the offending the subject of charges 1 and 3 as 'objectively very serious'[10] and noted the following:
(a) You accessed the child pornography material (CPM) frequently over a period of four years eight months. That is a lengthy course of conduct and is not an isolated act.
(b) Upon your arrest, you possessed a significant number of images depicting children of pre-pubescent age, with some younger children, including toddlers. ... Although it is not possible to precisely know how many children were depicted across all the materials, it is evident that a significant number of children are involved and thereby victimised. I note that you fall to be sentenced in respect to possession of child pornography for only one day, being 10 December 2014.
(c) There is no evidence that you paid for the images. However, your counsel ... acknowledged the fact that there is a market for child pornography [which] encourages its production, whether paid for or not. You now acknowledge and understand that the dissemination and use of the material further serves to traumatise victims.
Mr Dennis, every case of possession or accessing child pornography has a victim, and in this case, there were multiple victims. You now understand that you have contributed directly to the abuse of those depicted in those images. Those victims cannot be identified personally, but in addition to the abuse they suffered whilst the material was being created, they suffer further abuse each time the material is downloaded, viewed and disseminated.
(d) I accept that there is no indication that the images were in your possession for the purposes of sale or further distribution by you. Nor is there any evidence that you profited from the offending.
(e) I further find that there was no appreciable risk of the material being seen or acquired by vulnerable persons, namely children.
(f) There is no indication that you were 'proximate' to those responsible for bringing the material into existence. Nevertheless, if you and others who are tempted to access or possess this type of material did not do so, there would be no market for this reprehensible material.[11]
44 The judge added the following observations about the objective seriousness of each of the charges:
In relation to Charge 1, the accessing child pornography charge, this is the most serious of the offending and it is a serious example, having regard to the lengthy period of the offending and the nature and volume of the images already described.
In relation to Charge 2, relating to your failure to comply with your SORA requirements, I consider that offending to be at the lower end of the scale of seriousness, having regard to your particular documented learning difficulties and the current neuropsychological assessment. I do not consider this to be a flagrant abuse and I accept that you would have had some difficulties comprehending and understanding all the reporting requirements, and to an extent, that explains your offending. Having said that, you were still aware of the SORA requirements and you should have complied.
Charge 3, knowingly possess child pornography, I noted it was for one day only, but still it refers to a significant body of material and it is a serious example of this sort of offence.[12]
45 After setting out the appellant's criminal history, the judge stated that the current offending 'does not involve contact sexual offences, but does appear to represent an escalation in [the appellant's] offending concerning accessing child pornography and possession of child pornography'.[13]
46 The judge said that general deterrence is of paramount consideration in sentencing for these types of offences because of the significant interest in protecting children from sexual abuse, and noted that she was required to have regard to it by s 16A(2)(ja) of the Crimes Act 1914 (Cth). She said that specific deterrence was also of significance.[14]
47 By virtue of the fact that the appellant was to be sentenced as a serious sexual offender in relation to charge 3, the judge said that protection of the community from him was 'the [principal] purpose for which the sentence is to be imposed'.[15]
48 The judge considered the mitigating factors relied on by the appellant and said the following:
You entered a plea of guilty and I have taken [it] into account in your favour. It is an important matter. I have had regard to the timing of the plea, at committal mention, and accept that it was entered at the earliest stage. By your plea, you indicated your willingness to facilitate justice. There is real utility in your plea. You have avoided the cost of a trial. You are entitled to a sentencing discount for your plea, that is real and not illusionary.
You have been fully co-operative with the police and made relevant admissions. By your plea, you acknowledge your wrongdoing and it is an acceptance of responsibility on your part. I have also had regard to the fact that when the police attended your home and executed the search warrant, the materials that they located with the relevant child pornography on it, were throughout the house, in the kitchen, in the study, in the en-suite and in your bedroom. Overwhelmingly, the material was located within the communal areas of your house, but you did not dispute possession. Further, the timeframe during which you accessed the pornography was based on the admissions that you made to police upon your arrest. In the circumstances, I find that is evidence of genuine remorse.
I am further satisfied that you have demonstrated your compliance and co-operation in the various assessments that have been undertaken at the request of the court. During that process you have indicated insight into your offending behaviour and repeated your willingness to have treatment to address your underlying offending behaviour.
At no stage have you sought to justify or excuse your behaviour. You have expressed the desire to not want to re-offend in the future.[16]
49 The judge also took into account, in a general sense, the delay in the finalisation of the appellant's case between 10 December 2014 and 26 April 2016.[17] She took into account the fact that the appellant had utilised that time, while he was on bail, to attend five sessions of counselling with a psychologist directed to his sexual offending and had repeatedly indicated his willingness to undertake a sex offender's treatment program, the opportunity for which had not previously arisen.[18] The judge was 'optimistic' that the appellant would comply with such programs given his compliance and attitude demonstrated in the pre-sentence period.[19]
50 The judge referred to the opinions of Mr Cummins, Dr Clayer and Mr Jackson about the impact of imprisonment on the appellant and had regard to Verdins limbs 5 and 6. She said the following on this issue:
You present as a psychologically immature and vulnerable person. ... Verdins Principles 5 and 6 [apply] ... and [they have] been factored into account in your favour. It will be difficult for you in custody and that may impact with a deterioration in your mental health condition.
You have served your remand in difficult circumstances in protection and I have taken that into account. It will be necessary for you to serve any term of imprisonment in protection. Recently you were moved from the MRC [Melbourne Remand Centre] to PPP [Port Phillip Prison], following another prisoner threatening/intimidating you at MRC. At PPP there have been further episodes where you have been subjected to alleged sexual assaults that have now been reported to the authorities. Those assaults are currently being investigated.
You were moved back to MRC recently and have been held in Deakin B Unit for four to five weeks for your own protection, where you are held in custody 23 out of 24 hours. Because of your fears of further assaults, you do not leave your cell. You are currently in a management unit for your own safety and have experienced ongoing taunts.
Having regard to the expressed opinion of both Mr Cummins, Dr Clayer, and Mr Jackson in his report, I have taken into consideration the fact that imprisonment will be more burdensome for you than the ordinary gaol inmate and also there is a risk of your mental health deteriorating.[20]
51 In relation to the appellant's risk of reoffending, the judge referred to the opinions expressed by Mr Cummins, Dr Clayer, Ms Pastuovic and Ms Allen, and concluded as follows:
In the past you have not received any professional support modified for your particular unique set of circumstances, nor have [you] benefited from any structured treatment to support and assist you to identify and manage high risk situations.
Overall, I consider, given your current evolving insight into the effects of child pornography on victims, your commitment to engaging in offence behaviour management and treatment and your disgust at the offending, means that I assess your risk of re-offending in a like manner as being moderate to high. That can be lowered provided that you do undertake the recommended treatment. It is essential that your willingness to have treatment be implemented effectively, noting in particular the information contained in the neuropsychological assessment.[21]
52 The judge also considered the application of the totality principle, and said the following in that regard:
I have to have regard to the totality principle as was stated in the New South Wales Court of Criminal Appeal decision of R v Porte, the offences of accessing and possessing child pornography are separate and distinct offences, although the one offence is linked to and substantially overlaps with the other and therefore I must impose a sentence which reflects the total criminality of the two offences.
The offences are directed at different vices and I have noted the accessing of the material was over a long protracted period, whereas possession was for one day only.
In relation to Charge 3, the Crown have not sought a disproportionate sentence and I do not intend to impose one. I note the legislative direction that a sentence to be imposed on Charge 3 is cumulative, unless I otherwise directed and I propose to do so.
I have borne in mind the principle of totality in respect to the sentence on Charge 3, but I also note that the principle of totality is limited by law relating to sentences imposed on serious sexual offences and I refer to the High Court decision of R H McL v The Queen, nevertheless I have still considered the need for today's sentence to reflect the totality of your offending.[22]
53 In relation to the appellant's submission that a combination sentence of a CCO together with a term of imprisonment was appropriate in this case, the judge stated that Boulton v The Queen[23] does not apply to the sentencing of Federal offenders by Victorian courts, but does apply to the sentencing in respect of charges 2 and 3.[24] The judge concluded as follows in relation to that issue:
Given that general deterrence is of paramount significance and also specific deterrence plays a significant role in your sentence for your offending, the disposition to be imposed is a term of imprisonment, with non-parole periods fixed. I did seek reports concerning your suitability for a community corrections order, but having properly reflected on all the relevant material, including the serious nature of the offending and your past criminal history, I have ultimately come to the conclusion that the only just sentence, and one that reflects the community's abhorrence of child [exploitation] through accessing and possessing child pornography material, is one as I have described.[25]
54 The grounds of appeal (including new Ground 4) are in the following terms:
55 The appellant submitted that, although any sexual offending involving the exploitation of children is serious, his conduct the subject of charges 1 and 3 was not objectively a very serious example of either offence. According to the appellant, those offences should have been characterised as objectively mid-range.
56 The appellant accepted that the judge had correctly identified the matters relevant to a consideration of objective seriousness. However, the appellant submitted that the following findings made by the judge prevented the offending from being properly characterised as objectively very serious:
(a) The combined number of images and videos accessed and possessed in this case was approximately 1,600 which was moderate when compared to other cases.
(b) The material was not for the purpose of sale or further distribution.
(c) The appellant was not to profit from the offences.
(e) The appellant was not proximate to those who had brought the material into existence, and had no involvement in the bringing of the material into existence.
(f) There was no appreciable risk of the material being seen or acquired by vulnerable persons, namely children.
57 In relation to charge 3, the appellant noted that the offence related to the possession of material on one day only.
58 According to the appellant, in assessing objective gravity, it must be borne in mind that s 474.19 of the Criminal Code is not limited to accessing or transmitting child pornography from the internet for personal use, but extends to publishing, distributing, advertising or promoting such material on the internet.
59 The Crown submitted that the appellant's offending was objectively very serious in view of the number, duration and ANVIL level of the materials accessed and possessed, and the fact that he had stored the child pornography material on 34 different data storage devices.
60 The Crown noted that charge 1 was a 'rolled up' charge involving numerous separate instances of accessing child pornography over nearly five years that were capable of constituting separate offences and submitted that accordingly, the criminality involved in the charge was greater than for a charge involving only one episode of criminal conduct.
61 In relation to charge 3, the Crown submitted that, while the majority of the child pornography images were classified as level 1, not all level 1 images can be said to be innocuous as that level encompasses a wide range of activity including, as was the case here, close up images of children exposing their genitals, or naked children being presented merely as bodily parts. While the offending the subject of that charge was dealt with on the basis that it occurred on a single day only, the Crown submitted that the offending occurred in the context of the appellant admitting to police in his record of interview that he had obtained the material seized over a period of approximately 5 years.
62 The Crown also emphasised the fact that while the majority of the child pornography depicted pre-pubescent children, there were some depicting younger children including toddlers, and that there were a significant number of individual child victims featured in the material.
64 The assessment of the objective seriousness of the offending the subject of charges 1 and 3 cannot be reduced to a mathematical comparison of the number of pornographic images and videos accessed or possessed by the appellant relative to other cases. It must be assessed having regard to the circumstances of the offending in each case, considered in the light of the sentencing principles applicable to that case as illuminated by authorities such as Garside. The mere fact that the number of images accessed and possessed by the appellant was 'moderate' when compared to that of other offenders, as submitted by him, does not automatically mean that his offending cannot be described as 'very serious'. Nor is that description precluded by the fact that the appellant's offending was 'less sophisticated' than other offenders.
65 In the present case, as conceded by the appellant, the judge applied the correct principles to the circumstances of his offending and, subject to the allegation in Ground 2, she took into account all relevant considerations and did not take into account any irrelevant considerations. Having regard to those principles, the judge was justified in concluding that the offending conduct the subject of charges 1 and 3 was very serious. In relation to both charges, the number of images and videos accessed and possessed by the appellant was large, they included items in each ANVIL category and involved many child victims, including toddlers. The fact that there are other cases where the number of images and videos is far greater and that many more of them may be in the higher ANVIL categories does not mean that the appellant's offending is not very serious. Rather, it means that the offending in those other cases is more serious than the appellant's offending and warrants a higher sentence than the sentence imposed on him.
66 Similarly, the absence of aggravating features such as those referred to at [56] above does not mean that the judge was precluded from characterising the appellant's offending as very serious. Rather, it means that, had those features been present, the appellant's offending would have been more egregious and would have warranted a sterner sentence than the one imposed by the judge.
67 In relation to charge 1, the period of nearly five years over which the offending extended and the fact that the appellant stored the child pornography material in multiple devices contributed to the objective seriousness of his offending.
Ground 2: Judge's finding regarding escalation of the appellant's offending
68 The appellant submitted that the judge's finding that there had been an escalation in the appellant's offending concerning accessing and possessing child pornography,[26] was not reasonably open on the evidence.
69 The appellant contended that this finding is contradicted by Ms Allen's statement that there was no evidence of escalation.[27] He noted that in his written submissions on the plea, he stated that his offending had not escalated, and that the matter of escalation was not raised during oral submissions by either party or the judge.
70 The appellant submitted that, in circumstances where the appellant's most recent sexual offence was in 2005 and his most recent prior offence of any kind was in 2009, in a relative sense, his offending generally had deescalated, his sexual offending generally had deescalated, given the absence of any further contact offences, and his offending in relation to child pornography had not escalated.
71 The Crown submitted that the judge's finding in this regard was open on the evidence. According to the Crown, on any view, the appellant's conduct must represent an escalation or persistence in child pornography related offending. The Crown emphasised the following in support of that submission:
(a) Despite prior convictions for child pornography offending in 2003 and 2005, the appellant continued to offend in the same manner between 2010 and 2014.
(b) The appellant did not cease offending voluntarily.
(c) In his record of interview, the appellant admitted that he was accessing or viewing child pornography material an hour before police executed a search warrant at his home, and that he had been offending for a period of around five years.
72 This Court has said on a number of occasions that the words used by a sentencing judge in his or her sentencing remarks should not be construed as if they are in a statute, a will or a deed and require semantic analysis to distil their meaning.[28] Rather, that meaning should be ascertained by reading the sentencing remarks as a whole and having regard to the need for expedition and succinctness in formulating them. Allowance must be made for occasional looseness of language, particularly when sentencing remarks are delivered ex tempore.
73 According to the Macquarie Dictionary, 'escalate' means 'to enlarge; intensify ... ; to grow in size or intensity; develop or increase by stages'. According to the same dictionary, 'persist' means 'to continue steadily or firmly in some state, purpose, course of action, or the like, especially in spite of opposition, remonstrance, etc.'. The appellant's main complaint under Ground 2 is that, while his offending may be fairly described as 'persistent', it could not be described as 'escalating' because there was no evidence that it increased in frequency or quantity.
74 In our opinion, when the sentencing remarks are read as a whole, it can be inferred that the judge used the word 'escalation' loosely in the sense of 'persistence' because the appellant's offending showed no sign of abating despite previous sentences for similar offending. Further, the qualifying words 'does appear to represent' before the words 'an escalation' make it clear that the judge was not making a finding that there had been an escalation (in the sense set out in the Macquarie Dictionary) in the appellant's offending. Even if the judge had made a finding to that effect, such a finding would have been justified because the period of nearly five years over which the offending the subject of charge 1 extended, was much longer than the period of offending that was the subject of any prior charges. The longest previous period of offending was nearly three years.[29]
75 Although both Mr Cummins and Ms Allen stated that there was no evidence that there had been an escalation in the appellant's sexual offending, this was not a matter that required expert evidence. Rather, it was a factual matter for the judge based on a review of the appellant's offending history.
77 The appellant acknowledged the difficulty of establishing the ground of manifest excess, and focused on three primary submissions, namely, that: the sentence 'stands out' when compared with current sentencing practices; his prior criminal history did not justify a 'stand out' sentence; and there should have been a higher degree of concurrency between charges 1 and 3.
78 In relation to current sentencing practices, the appellant accepted that it was difficult to make comparisons between cases involving child pornography offences.
79 The appellant referred to Garside, R v De Leeuw,[30] Director of Public Prosecutions (Cth) v D'Alessandro[31] and R v Porte[32] which involved successful Crown appeals against sentences imposed for transmission and possession of child pornography.[33] According to the appellant, the objective seriousness of the offending in Garside was similar to this case but that of De Leeuw and Porte was far more serious, and the highest total effective sentence imposed in any of those cases was 2 years and 9 months. These cases will be discussed in the course of our analysis below.
80 The appellant also relied on statistics published by the Sentencing Advisory Council[34] which he conceded were not before the judge on the plea. The statistics showed that 327 offenders were sentenced in Victoria for using a carriage service for child pornography between July 2010 and June 2015. The appellant noted that in those cases, 33.3 per cent received a straight term of imprisonment, only 12 per cent of those being terms of three or more years, and 56.3 per cent of offenders received a wholly or partially suspended sentence of three years or less. According to the appellant, the sentence imposed on him was 'well inside the top 5 [per cent]' which is even more significant when it is considered that less serious instances of this offence are dealt with summarily and do not form part of the statistics. The appellant submitted that in terms of objective seriousness, there is nothing that made his offending stand out from usual cases of this kind that come before the higher courts.
81 In relation to his prior criminal history, the appellant submitted that the circumstances of this case were 'somewhat different to other cases of recidivist sexual offenders'. He noted that he had never received any treatment in the past for his prior sexual offending and that he had a neuropsychological condition which made it difficult for him to learn from his mistakes. He emphasised the judge's optimism that he would engage in sex offender treatment programs and that this would lower his risk of reoffending and submitted that he was able to positively distinguish himself from other recidivist offenders on that basis.
82 The appellant relied in particular on the fact that he had: demonstrated increased insight into his offending, its effects on victims and disgust at the offending; repeatedly indicated a willingness to undertake a sex offender treatment program; engaged in five sessions with a psychologist directed at sexual offending while on bail; been compliant with strict bail conditions between 10 December 2014 and 26 April 2016; and enjoyed the ongoing support of Mr Li who could provide him with a stable residence on his eventual release.
83 In relation to the principle of totality, the appellant accepted that reconciling it with s 6E of the Sentencing Act 1991[35] is a difficult sentencing task but submitted that in this case, the failure to order a greater degree of concurrency resulted in a total effective sentence that was disproportionate to the totality of the criminal offending involved. According to the appellant, a significantly higher degree of concurrency was warranted in the light of the fact that: there was a high degree of overlap between the offending; the victims were the same; charge 3 related to the possession of images the subject of charge 1; and charge 3 related to possession of those images for a single day.
84 The appellant emphasised the following favourable mitigatory findings:
(a) He pleaded guilty at the earliest stage, was fully cooperative with police and made admissions which formed the basis of the charge period for charge 1. The guilty plea was evidence of genuine remorse and had real utilitarian value.
(b) His imprisonment weighs more burdensomely on him. His remand of 295 days was served in difficult circumstances in protection. He had been assaulted and threatened in custody and ultimately moved into a highly restrictive environment for his own protection. He will serve his sentence as a protection prisoner.
(c) Verdins limbs 5 and 6 were applicable.[36]
85 The Crown submitted that the total effective sentence and the sentences imposed on charges 1 and 3 are not manifestly excessive when regard is had to the sentencing principles applicable to this type of offending and to the facts and circumstances of the offending.
86 The Crown contended that the maximum penalties for the offences provided an unequivocal indication that they are viewed by Parliament as being very serious and noted in particular that in 2010 the maximum penalty for the offence the subject of charge 1 was increased from 10 to 15 years.
87 The Crown emphasised that in relation to charge 3, the appellant was sentenced as a serious sexual offender which rendered protection of the community the principal sentencing purpose pursuant to s 6D of the Sentencing Act 1991. Further, so it was said, general deterrence is the primary sentencing consideration for offending involving child pornography given the prevalence and ready availability of pornography involving children, particularly on the internet, and the need to protect children from sexual abuse.
88 The Crown also submitted that there is a paramount public interest objective in promoting the protection of children and emphasised the impact on victims, the increasing prevalence of child pornography offending and the fact that such offending is difficult to detect.
89 The Crown argued that specific deterrence was also a very significant sentencing consideration in this case given the appellant's offending occurred in circumstances where he had relevant prior convictions and the risk of reoffending had been assessed by the judge as 'moderate to high'.[37]
90 The Crown contended that the judge gave clear consideration to the principle of totality in determining cumulation, and that the cumulation of 12 months that was ordered was modest and properly balanced the degree of overlap with the seriousness of the offending and the appellant's extensive prior convictions.
91 In relation to the appellant's reliance on Garside, Porte and De Leeuw, it was said by the Crown to be highly significant that in none of those cases did the offender have two prior convictions for offending of the same nature.
92 According to the Crown, the judge took into account the factors advanced by the appellant in mitigation and gave the appellant a 'real' discount for his early plea of guilty, remorse, acceptance of wrongdoing and his admissions both to the offending and the duration of the offending.
93 The Crown also emphasised the objective seriousness of the offending and relied on its submissions in relation to Ground 1 in that regard.
94 Insofar as it concerns charge 1, which involves a Commonwealth offence, the appellant's focus on Victorian sentencing practices is misplaced, as regard must be had to sentencing practices across Australia.[38] In any event, resort to Victorian sentencing practices does not assist the appellant. It is true that Garside, De Leeuw, D'Alessandro, Porte and R v Fulop,[39] involved more lenient sentences than the sentences imposed on the appellant notwithstanding that he accessed and possessed a significantly lesser number of images and videos. However, there were important distinguishing features. Common distinguishing features were that the offenders in those cases: offended over a shorter period; had no relevant prior criminal history; were not sentenced - other than the offender in D'Alessandro - as serious sexual offenders for any offence; and were able to call in aid more cogent mitigating circumstances. Like the appellant, all the offenders had pleaded guilty. Also, at the time the offenders in Fulop and D'Alessandro were sentenced, the maximum penalty for use of a carriage service to access child pornography was 10 years.
95 As discussed under Ground 1, the appellant's offending in relation to charges 1 and 3 was objectively very serious. The offending the subject of charge 1 extended over nearly five years and involved a large number of images and hence child victims. The appellant had a long and disturbing relevant prior criminal history in no less than three States which had no causative relationship with his neuropsychological condition and he fell to be sentenced in relation to charge 3 as a serious sexual offender. Section 6D(a) of the Sentencing Act 1991 requires protection of the community to be the principal sentencing purpose. Also, as Garside emphasised, general deterrence is a primary sentencing consideration for child pornography offences, with mitigating circumstances being accorded less weight.[40]
96 The evidence before the judge made it clear that, despite his neuropsychological condition, low intelligence and mental health issues, the appellant knew that what he was doing was unlawful and could result in a lengthy prison sentence. Although it appears that he gained some insight into his offending and its impact on child victims, Mr Jackson was pessimistic about whether offence-prevention and rehabilitation programs would be effective. The judge attributed to Mr Jackson the opinion that the appellant's prospects of rehabilitation would be improved by having a supportive structure to take into account his deficits[41] even though Mr Jackson did not, in terms, express this opinion.[42] Despite this, the judge did not make any explicit finding about the appellant's prospects of rehabilitation. This is not surprising, as the expert opinion did not engender much confidence about the appellant's prospects of rehabilitation.
97 Mr Cummins assessed the risk of reoffending as 'Low-Moderate', Dr Clayer's assessment was 'moderate to high' and the two pre-sentence reports contained an assessment of 'high'. In the light of this evidence, the judge's own assessment of the risk of reoffending as 'moderate to high', and the emphasis that had to be given to protection of young vulnerable children, the proper exercise of the sentencing discretion required the judge to impose a substantial prison sentence for each of charges 1 and 3. Having regard to the seriousness of the appellant's offending and the many mitigating factors in his favour, the individual sentences that the judge imposed were at the top end of the range of sentences reasonably open to her. However, they were not manifestly excessive.
98 We now turn to the appellant's submission that the degree of concurrency ordered in relation to charge 3 was inadequate and that the total effective sentence was disproportionate to his offending and thus infringed the principle of totality. The authorities make clear that although there is overlap between the offences of using a carriage service to access child pornography and knowingly possessing child pornography, the offences are distinct and are directed at different but related vices.[43] It follows that some cumulation is necessary to reflect the different criminality contained in the two offences.
99 In the present case, there was not complete overlap in the offences the subject of charges 1 and 3. Because the images and videos the subject of charge 1 were not exactly the same as the images and videos the subject of charge 3, some different child victims were involved. Due to the separate offending, some cumulation was warranted. However, we accept the appellant's submission that, having regard to the near-complete degree of overlap between the two offences, the cumulation of 12 months that the judge ordered was disproportionate to his total offending and thus manifestly excessive. We are fortified in this view by the fact that in each of the cases referred to at [94] above, the degree of cumulation did not exceed six months. It follows that the total effective sentence was manifestly excessive.
Ground 4: The application of Verdins principles
101 In Verdins, this Court set out six ways in which impaired mental functioning will be relevant to the exercise of the sentencing discretion:
102 In Director of Public Prosecutions v O'Neill,[45] this Court relevantly stated as follows about the scope and limitations of the Verdins principles insofar as they apply to limbs 1 and 4:
[I]n order for the first, second, third and fourth principles enunciated in Verdins to have application to the sentencing task, there must be a connection between the impairment to mental functioning and the appellant's moral culpability or the need for general and specific deterrence. If the mental impairment existed at the time of the offending, it must have some 'realistic connection' with the offending; or have 'caused or contributed' to the offending; or be 'causally linked' to the offending. ...
[T]o show the necessary connection to the offending and to so enliven limbs one to four of Verdins, the offender must establish that the mental impairment affected the offender's ability to appreciate the wrongfulness of the conduct, or obscured the offender's intent to commit the offence, or impaired the offender's ability to make calm and rational choices or to think clearly at the time of the offence.[46]
103 The appellant submitted that the judge erred in failing to find that limbs 1 and 4 of the principles set out in Verdins applied to charges 1 and 3. According to the appellant, the judge failed to give full effect to those principles because although she acknowledged that the appellant had a neuropsychological condition, she only applied limbs 5 and 6.
104 The appellant noted that limb 1 had been raised and relied on by counsel for the appellant on the plea.[47] The appellant referred specifically to the aspects of Mr Jackson's report set out at [32] above and submitted that consideration of those matters should have led to the application of limb 1 by the judge.
105 The appellant submitted that it was open to the judge to find that although he was able to understand the wrongfulness of his actions, he was less able to understand the wrongfulness than a person without his neuropsychological condition and should be considered less blameworthy as a result. The appellant relied in particular on the opinions of Mr Cummins and Mr Jackson as to his lack of maturity and his deficits in abstract reasoning which affected his level of insight into the wrongfulness of his conduct and therefore his moral culpability.
106 The appellant referred to Green v The Queen,[48] and submitted that the following principle as stated by Maxwell P ought to apply in this case in relation to limb 4:
The principle of specific deterrence is premised on the assumption that an appropriate punishment will operate to deter an offender from repeating the same or similar conduct in the future. Whether and to what extent that assumption is applicable to a person whose mental functioning was impaired at the time of the offending will depend on the circumstances. As Steytler J explained in Payne v The Queen:
[I]n a case in which the mental illness contributed to the commission of the offence, the importance of personal deterrence may, depending upon the nature and effect of the illness, be lessened. The whole notion of personal deterrence assumes some rational analysis or reasoning in the course of comparing the likely gains from the crime against the prospect, and likely severity, of punishment. Where the illness affects the person's ability to make that very analysis, there is no justification for affording the consideration of personal deterrence the same measure of significance as it might have in the case of a well person, although there may then be a greater need to protect the public.[49]
107 The appellant submitted that given the opinions expressed in the psychological and neuropsychological reports, in particular relating to his difficulty in learning from his errors, the application of the above principle should have led to the moderation of specific deterrence and prioritisation of therapeutic interventions in his case. This was said to be especially so in circumstances where he had not had the benefit of any treatment prior to this offending, and had demonstrated progress since treatment had commenced. In support of that submission, the appellant relied on the statement contained in Ms Allen's report that following five sessions with a psychologist as part of a sex offender treatment program, he was able to articulate the concept of harm caused to the children in the pornographic materials and had demonstrated an impressive amount of learning in that regard.[50]
108 The appellant also submitted that to the extent that a nexus is required between the appellant's mental impairment and his offending for the principles in Verdins to apply, that nexus is only required for limb 1. According to the appellant, there was a sufficient nexus between the offending and his mental impairment on the evidence before the judge. The appellant did not accept that Mr Jackson limited his findings only to the offending the subject of charge 2 and relied in particular on Mr Jackson's conclusion that there may be a significant link between the appellant's mental impairment and his inability to learn from his errors over the past 30 years.[51] While the appellant accepted that his mental impairment did not cause his paedophilia, he submitted that there was a nexus between the offending on charges 1 and 3 and his inability to learn from previous errors or engage in abstract reasoning.
109 In relation to limb 4, although the appellant conceded that it had not been explicitly referred to on the plea, he submitted that that limb reflects a fundamental and important proposition that arises out of Verdins and the judge had an obligation to consider the matter in circumstances where Verdins was relied on.
110 The Crown submitted that the material on the plea did not demonstrate a causal link between the appellant's neuropsychological condition and the offending. The Crown relied on O'Neill which it submitted makes clear that not only must there be an impairment of mental functioning, but there must be a realistic connection between moral culpability and the impairment which is not present in this case. Further, so it was said, there must be evidence that the mental impairment affected the appellant's understanding of the wrongfulness of the conduct. The Crown noted that the appellant had admitted during his record of interview that he knew his conduct was wrong and submitted that that was supported by the steps he had taken to conceal his offending from his partner.
111 The Crown contended that Mr Jackson's opinion as to the appellant's capacity to make reasoned decisions and his impaired judgment only applied to his ability to comply with the SORA. According to the Crown, Mr Jackson made specifically clear that those factors had no link to the offending the subject of charges 1 and 3. It is for that reason, so it was said, that the judge applied those factors to charge 2 only.
113 We agree with the Crown's submission that the expert evidence that engaged Verdins limbs 1 and 4 related only to charge 2 and provided no support in relation to charges 1 and 3.
114 As appears from [32] above, the expert evidence was to the effect that, due to his neuropsychological condition, the appellant had difficulty processing information and organising himself with a view to complying with legal obligations, and learning from his mistakes. This evidence explains why he failed to comply with his SORA reporting obligations. Accordingly, his moral culpability in relation to the breach of those obligations was moderated and specific deterrence had limited application.
115 The appellant's moral culpability in relation to the offending the subject of charges 1 and 3 was not affected by his mental impairment because Mr Jackson specifically found that the appellant was able to understand that what he was doing was wrong.[52] This finding is supported by the fact that the appellant deliberately concealed his offending from his partner, Mr Li, for the entire period of his offending. Mr Jackson's further opinion that the appellant's neuropsychological condition is 'not related' to his child pornography offending[53] means that the causal link required by O'Neill[54] in order to engage Verdins limb 1 cannot be satisfied.
116 We reject the appellant's submission that Verdins limb 1 was applicable because his knowledge of the wrongfulness of his conduct was less than that of a person without his neuropsychological condition and therefore he was less blameworthy than such a person. There was no expert evidence to support this submission. On the contrary, Mr Jackson's evidence was that there was no relationship between the appellant's condition and the child pornography offences. Further, immaturity and other personal traits falling short of a mental impairment cannot engage the Verdins principles.[55]
117 We also reject the appellant's submission that a nexus is not required between his mental impairment and the need for specific deterrence in order for Verdins limb 4 to be engaged. That submission is not borne out by the observations in O'Neill set out at [102] above.
118 In our opinion, Verdins limb 4 was not satisfied in the present case. Although the appellant's neuropsychological condition made it difficult for him to learn from his mistakes, as he knew that his offending conduct was unlawful and could result in a lengthy prison sentence, it could not be said that his condition prevented him from exercising a choice between engaging in the conduct and abstaining from it. Mr Jackson specifically found that the appellant did not have a disorder of impulse control or a condition that made him disinhibited. This expert evidence, coupled with the judge's assessment that the risk of the appellant reoffending was 'moderate to high',[56] meant that specific deterrence did not warrant any moderation on account of the appellant's mental impairment.
119 The sentencing discretion having been reopened, the applicant will be resentenced as follows:
Commence 6 months after commencement of sentence on charge 3
120 It will be noted in the records of the Court that, in relation to charge 3, the appellant has been sentenced as a serious sexual offender.
121 Pursuant to s 6AAA of the Sentencing Act 1991 a declaration will be made that, but for the appellant's plea of guilty, we would have sentenced him to a total effective sentence of 5 years and 6 months' imprisonment with a non-parole period of 3 years and 6 months.
122 A declaration will also be made that the appellant must continue to comply with the reporting obligations imposed by pt 3 of the SORA for life.
[1] DPP (Cth) v Dennis [2016] VCC 1775 ('Sentencing remarks').
[2] [2007] VSCA 102; (2007) 16 VR 269 ('Verdins'). Limbs 1 and 4 are set out at [101] below.
[4] Sentencing remarks [50]; Sentencing Act 1991 ss 6B(2), 6E.
[5] The applicant relied on Boulton v The Queen [2014] VSCA 342; (2014) 46 VR 308.
[7] [2016] VSCA 74 ('Garside').
[8] Garside [2016] VSCA 74 [25] citing R v De Leeuw [2015] NSWCCA 183 [72] ('De Leeuw') (citations omitted).
[9] Sentencing remarks [44]. See also sentencing remarks [109]-[110].
[12] Sentencing remarks [111]-[113]. See also sentencing remarks [40].
[15] Sentencing remarks [51] citing Sentencing Act 1991 s 6D(a).
[21] Sentencing remarks [100]-[101].
[22] Sentencing remarks [114]-[117] (citations omitted). Section 6E of the Sentencing Act 1991 provides that '[e]very term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.'
[24] Sentencing remarks [105]. The judge referred to Atanackovic v The Queen (2015) 45 VR 179, 208 [95].
[28] Wong v The Queen [2013] VSCA 52 [19]; R v Groom [1999] 2 VR 159, 160 [3].
[31] [2010] VSCA 60; (2010) 26 VR 477 ('D'Alessandro').
[32] [2015] NSWCCA 174 ('Porte').
[33] In Garside, the majority decided to exercise this Court's residual discretion to dismiss the Crown appeal notwithstanding their finding that the sentence imposed by the County Court was manifestly inadequate. The appellant also relied on R v Fulop [2009] VSCA 296; (2009) 236 FLR 376 ('Fulop').
[34] Sentencing Advisory Council, Extract of Data relating to Use a Carriage Service for Child Pornography Material, Higher Courts, July 2010 to June 2015.
[35] See n 22 above. The appellant referred to DPP v Bales [2015] VSCA 261 [42]-[44].
[38] R v Pham [2015] HCA 39; (2015) 256 CLR 550.
[40] Garside [2016] VSCA 74 [25], [63].
[43] Fulop [2009] VSCA 296; (2009) 236 FLR 376, 379 [11]-[12]; Porte [2015] NSWCCA 174 [55]-[56], [157].
[44] Verdins [2007] VSCA 102; (2007) 16 VR 269, 276 [32] (citations omitted).
[45] (2015) 47 VR 395 ('O'Neill').
[46] O'Neill (2015) 47 VR 395, 414-15 [74]-[75] (citations omitted).
[48] [2011] VSCA 311 ('Green').
[49] Green [2011] VSCA 311 [28] (citations omitted).
[55] O'Neill (2015) 47 VR 395, 413-14 [71]-[73].
Dennis
The Queen [2017] VSCA 251
(2007) 16 VR 269
(2014) 46 VR 308
(2015) 45 VR 179
(2010) 26 VR 477
(2009) 236 FLR 376
(2015) 256 CLR 550
(2015) 47 VR 395