[2013] HCA 37
Bui v Director of Public Prosecutions (2012) 244 CLR 638
[2012] HCA 1
Cahyadi v R [2007] NSWCCA 1
(2007) 168 A Crim R 41
Clinch v R (1994) 72 A Crim R 301
CMB v Attorney General for New South Wales (2015) 256 CLR 346
[2015] HCA 9
Director of Public Prosecutions v Brett Le Gassick [2014] VCC 1288
Einfeld v Regina [2010] NSWCCA 87
Source
Original judgment source is linked above.
Catchwords
[2013] HCA 37
Bui v Director of Public Prosecutions (2012) 244 CLR 638[2012] HCA 1
Cahyadi v R [2007] NSWCCA 1(2007) 168 A Crim R 41
Clinch v R (1994) 72 A Crim R 301
CMB v Attorney General for New South Wales (2015) 256 CLR 346[2015] HCA 9
Director of Public Prosecutions v Brett Le Gassick [2014] VCC 1288
Einfeld v Regina [2010] NSWCCA 87200 A Crim R 1
Green v The QueenQuinn v The Queen (2011) 244 CLR 462[2011] HCA 49
Hili v The QueenJones v The Queen (2010) 242 CLR 520[2010] HCA 45
House v The King (1936) 55 CLR 499[1936] HCA 40
Lowndes v The Queen (1999) 195 CLR 665[1999] HCA 29
Mill v The Queen (1981) 147 CLR 383 at 389[1981] HCA 31
Minehan v R [2010] NSWCCA 140
Pearce v The Queen (1998) 194 CLR 610[1998] HCA 57
Postiglione v The Queen (1997) 189 CLR 295[1997] HCA 26
Putland v The Queen (2004) 218 CLR 174[2004] HCA 8
R v Booth [2009] NSWCCA 89
R v Harris [2007] NSWCCA 130(2007) 171 A Crim R 267
R v MAK
R v MSK [2006] NSWCCA 381
167 A Crim R 159
R v MMK [2006] NSWCCA 272
(2009) 195 A Crim R 38
Regina v Charnley [2011] 1 Cr App R (S) 58
[2001] HCA 21
The Queen v De Simoni (1981) 147 CLR 383
[1981] HCA 31
Vaitos (1981) 4 A Crim R 238
Vaovasa v R [2007] NSWCCA 253
(2007) 174 A Crim R 116
Veen v The Queen (No 2) (1988) 164 CLR 465
[1988] HCA 14
Texts Cited: A Ashworth, Sentencing and Criminal Justice (6th ed, Cambridge University Press, 2015)
Judgment (44 paragraphs)
[1]
[2011] HCA 49
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
Mill v The Queen (1981) 147 CLR 383 at 389; [1981] HCA 31
Minehan v R [2010] NSWCCA 140
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8
R v Booth [2009] NSWCCA 89
R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267
R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159
R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481
R v Nakash [2017] NSWCCA 196
R v Pitts [2016] NSCA 78
R v Porte [2015] NSWCCA 174
R v Walkuski [2010] SASC 146
R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38
Regina v Charnley [2011] 1 Cr App R (S) 58; [2010] EWCA Crim 1996
Regina v Eller [2014] EWCA Crim 2995
Rivo v The Queen [2012] VSCA 117
Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21
The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
Vaitos (1981) 4 A Crim R 238
Vaovasa v R [2007] NSWCCA 253; (2007) 174 A Crim R 116
Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
Texts Cited: A Ashworth, Sentencing and Criminal Justice (6th ed, Cambridge University Press, 2015)
[2]
M Bagaric and T Alexander, "Rehabilitating Totality in Sentencing: From Obscurity to Principle" (2013) 36 UNSWLJ 139
[3]
Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill
[4]
House of Representatives, Parliamentary Debates (Hansard), 4 February 2010 at 408-410
[5]
A Lovegrove, Sentencing the Multiple Offender: Judicial Practice and Legal Principle (Research and Public Policy Series No 59, Australian Institute of Criminology, 2004)
[6]
D A Thomas, Principles of Sentencing (2nd ed, Heinemann,1979)
Category: Principal judgment
Parties: Director of Public Prosecutions (Cth) (Applicant)
Bryan Walter Beattie (Respondent)
Representation: Counsel:
Ms S McNaughton SC/Ms J Paingakulam (Applicant)
Mr D Jordan SC (Respondent)
[7]
Solicitors:
Director of Public Prosecutions (Cth) (Applicant)
Streeton Lawyers (Respondent)
File Number(s): 2015/36324
Decision under appeal Court or tribunal: District Court of New South Wales
Jurisdiction: Criminal
Date of Decision: 13 June 2017
Before: Craigie SC DCJ
File Number(s): 2015/36324
[8]
Judgment
BASTEN JA: For the reasons given by Price J, the Director's appeal against the inadequacy of the sentencing in this matter should be upheld, the Court should resentence and impose an aggregate sentence. The aggregate sentence specified by Price J, namely, in relation to the federal offending, a sentence of 13 years imprisonment, to commence on 5 February 2016 remains in my view inadequate. I would substitute a sentence of 19 years which, when accumulated on 12 months of the sentence for the State offence, to which there was no challenge, gives an overall sentence of imprisonment for 20 years. Price J proposes a minimum term of 10 years to run from the commencement of the State offence, on 5 February 2015. In my view the non-parole period for the federal offence should be 13 years.
Of the putative sentences for individual offences indicated by Price J, there have been significant variations (from 6 years to 7 years) for counts 7, 8, 13, 21 and 22, with respect to each of which the sentencing judge appropriately identified the objective seriousness of the offence as being towards the high end of the range. As Price J explains, count 12 was the most serious of the offending and warranted a significant increase in the proposed sentence, from 7 years 6 months to 9 years 9 months. With respect to the other counts, the putative sentences either do not vary from the sentences imposed by the sentencing judge, or vary in small amounts reflecting a determinate starting point. I agree with the putative individual sentences.
The overall result is that the sum of the sentences for individual offences has increased from 103 years 6 months to 112 years 11 months.
It will be seen that the increase in the overall sum of sentences for individual offences (of about 10%) accounts for a relatively small proportion of the increased aggregate sentence proposed by Price J. The balance is accounted for by the inappropriate level of concurrency accepted by the sentencing judge, for which allowance has been made in the new aggregate sentence. I agree with that approach.
I gratefully adopt the accounts of the offending set out by Price J. There is a fine line to be drawn between providing in a judgment lengthy graphic descriptions of the material the subject of the offending and a bland statement of the offences which is unlikely to convey the true level of moral culpability of the offender. However, because a judgment provides an important level of transparency within the criminal justice system, some descriptive material must inevitably be included.
[9]
(a) Australian cases
It is convenient to start with the sentences imposed in the County Court in Victoria in Director of Public Prosecutions v Brett Le Gassick1 involving 23 charges laid under the Commonwealth Code. Charge 1 was described as a "rolled up charge" which involved the procuring of 54 individual children to engage in sexual activity over a period from April 2009 until November 2013. [1] Some of the activities involved nudity and erotic posing of young girls with no sexual activity, and a limited number of images and videos depicting penetrative sexual activity between children or between children and adults. [2] There were 10 individual offences of causing a child to engage in sexual activity or intercourse outside Australia in the offender's presence, which involved 83 separate victims, the majority being girls aged between 10 and 12 years. [3] The offender had a previous conviction for possessing child pornography, which had resulted in a brief sentence of imprisonment. Further, the offender had spoken to a number of the girls on a chat line about the possibility of meeting them and engaging in sexual activity in the Philippines; he had flown to the Philippines in May 2012, although he had not been allowed entry. [4] The offender's personal circumstances involved a sad and lonely life. He was 43 years of age at the time of the sentencing.
The judge referred to two other County Court judgments involving similar offending and the decision of the Court of Appeal in Rivo v The Queen delivered in May 2012. Taking into account an early plea of guilty, co-operation with the police and further assistance to the police, she imposed a sentence of 4 years imprisonment on the first charge and terms of 2 years down to 10 months on other charges, the bulk of which were to be served cumulatively with the sentence imposed on charge 1. [5] The total effective sentence was 11 years with a minimum term of 8 years.
In Rivo v The Queen [6] the Victorian Court of Criminal Appeal refused an offender's application for leave to appeal against sentences imposed in the County Court for offences under the Criminal Code. There were two "rolled up" counts, the first involving the procuring of child pornography material and the second procuring children under the age of 16 to engage in sexual activity outside Australia. Count 2 involved sexual activity with young children on 12 different occasions between July 2010 and May 2011. [7] The girls involved appeared to be aged from eight years to 16 years. It was not possible to determine the number of children involved in the various sessions. [8] The maximum penalty was 15 years imprisonment. In the County Court a sentence of 6 years was imposed on count 2 which, when partly accumulated on the sentence for child pornography, resulted in an effective sentence of 7 years with a non-parole period of 5 years.
[10]
(b) Overseas cases
The Court also sought assistance from the Director with respect to cases from overseas jurisdictions having similar legislation. She noted that in the United Kingdom the comparable provision is s 14(1) of the Sexual Offences Act 2003 (UK). It creates an offence of intentionally arranging or facilitating conduct in any part of the world which involves a sexual offence against children. The maximum penalty is imprisonment for 14 years. Two cases in the Court of Criminal Appeal were referred to.
Regina v Eller [11] involved an offender's appeal against a custodial term of 11 years with respect to five contraventions of s 14(1). The offences involved oral, anal and vaginal penetration of a young girl between 10 and 12 years with a man's penis and sex toys. The abuse took place on five occasions in September and October 2013. The offender was also charged with other counts including possessing indecent photographs of a child and breach of an earlier sexual offences prevention order. The Court held that the effective sentence of 14 years imprisonment was not excessive.
Regina v Charnley [12] involved an application by the Attorney-General under s 36 of the Criminal Justice Act 1988 (UK) seeking to challenge a sentence considered to be unduly lenient. The offender was charged with 19 counts of making indecent photographs of a child (with 17 similar offences being taken into consideration), three counts of causing or inciting a child under 13 years of age to engage in sexual activity without penetration (carrying a maximum sentence of 14 years imprisonment) and one count of causing or inciting a child under 13 years to engage in sexual activity with penetration (carrying a maximum sentence of life imprisonment). The trial judge had imposed sentences of 3 years imprisonment for the counts involving a child in sexual activity without penetration and 5 years imprisonment for the more serious count involving penetration. All the sentences were to run concurrently.
Moses LJ delivering the judgment of the Court of Appeal stated: [13]
"It suffices to demonstrate the gravity of these offences on their own to record that each one involved a different vulnerable, exploited young child. We take, for example, count 4. The offender made images of a naked female child, approximately 11 years old, penetrated by an adult with an object and with the penis, orally, vaginally and anally over a period of no less than 101 minutes. Count 5 involved a female child of approximately 12 years, naked, tethered to a bed by leather straps, raped by two males wearing masks, and assaulted by a lit candle strapped to her flesh. She was penetrated with objects orally, vaginally and anally over a period of 16 minutes."
[11]
The De Simoni principle
It remains to note, in relation to the individual sentences, a reference in Rivo to the statement by Gibbs CJ in The Queen v De Simoni, [20] that "the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted." In Rivo it was said that the offender was "not to be sentenced as if he perpetrated sexual offences directly upon the children." [21] No doubt that was so, but the implication (not explored in the judgment) was that the moral culpability of the offender would have been greater if he had been directly responsible for the sexual assaults.
The reasoning in Charnley set out above suggests that that might not be so. The nature of the offending in the present case, involving the payment for others to conduct sexual assaults for the gratification of the respondent, watching and giving instructions at the end of a video link, is thoroughly obnoxious. In broad terms, it is significant that Parliament has prescribed a maximum penalty of 20 years imprisonment for such an offence, which is the same maximum penalty as that which would apply under the Crimes Act 1900 (NSW) for an offence of aggravated sexual assault involving sexual intercourse with a victim under the age of 16 years. [22] No doubt the circumstances of each kind of offending are different, but beyond the importance of assessing the moral culpability in each case according to the actual events which took place, there is no necessary inference that an offence under s 272.8 of the Criminal Code involves lesser moral culpability than an offence under, for example, s 61J of the Crimes Act.
[12]
Principle of totality
Critical to the sentencing in the present case is the "principle of totality", a general law principle relevant to the sentencing of an offender for multiple offences. In the High Court, the principle, so labelled, was adopted in Mill v The Queen, [23] although it had earlier received implicit recognition in Ryan v The Queen. [24] In Ryan, Wilson J, in describing the process of selecting appropriate sentences for each separate count in an indictment, stated: [25]
"Then any relationship that does exist between the counts, and also the propriety of the total sentence, would find expression in the degree of concurrency, if any, which is made to attach to the individual sentences."
To the same effect, Brennan J said: [26]
"In pronouncing sentence, however, the trial judge imposes separate sentences in respect of the several offences of which the accused has been convicted, effecting the appropriate overall sentence by adjusting the severity of the separate sentences and, when custodial sentences are imposed, by ordering that they be served either concurrently or cumulatively."
Where the law permits, as in this case, the imposition of an aggregate sentence, the somewhat arbitrary process of adjusting individual sentences or adjusting the degree of concurrency is avoided, at least in the absence of any need to specify those effects with arithmetical precision. Nevertheless, the substantial issue remains as to what is properly described as a fair, just, proportionate or appropriate sentence for the whole of the offending. That problem arises where the sentence has been selected for each individual offence and principles governing the degree of concurrency or accumulation have been applied, but the overall period is one which offends some instinctive sense of fairness and justice.
In some circumstances, the problem may be resolved by an appropriate degree of concurrency. Thus, where several punches have been thrown in the course of melee, within a very short space of time, each punch may involve a separate assault, which may be separately charged, but the appropriate sentences will readily be fixed to run largely, if not wholly, concurrently. In other circumstances, for example, separate offences of rape involving five different victims over a period of two years would be unlikely to warrant any degree of concurrency, were the principle of totality not to have operation. That is because the individual offences would have no obvious common element, apart from a criminal propensity on the part of the offender. Nevertheless, an accumulation of five lengthy periods of imprisonment might appear to involve a disproportionate level of punishment.
[13]
Conclusions
In the present case the federal offences took place on 12 separate occasions between early March and mid-November 2012. The statement of agreed facts identified approximately 17 boys who appeared in the videos, most being from 10 to 14 years and one who appeared to be older than 15 years. The offender accepted that his conduct was obsessive; a psychiatrist, Dr Nielssen, concluded that the offender "was not thought to have a major psychiatric disorder", but met the currently accepted criteria for diagnosis of a "paraphilic disorder …, specifically homosexual paedophilia." Such opinions would provide an explanation of persistent abhorrent behaviour, although the behaviour ceased voluntarily some two years before the offender was arrested. Beyond the common element which lies in the propensity for paedophilia, the separation in time and there being separate victims prevent this constituting a course of conduct warranting any significant degree of concurrency.
In the present case, the most serious putative individual sentence proposed is 9 years 9 months. There are four individual sentences of 7 years also proposed. The proposed aggregate term for the federal offences of 13 years is equivalent to the most serious offence with an addition of a sentence of 3 years 3 months. None of the other 17 federal sentences was less than 4 years. I can see no principled justification for such a low aggregate term.
Although greater leniency might have been accorded with respect to the earlier sentences, such a course would have had little effect on the overall sum of the sentence periods. All except one of the sentences involved an offence under s 272.8(2) of the Commonwealth Code. The maximum penalty provided for a single offence under that provision is 20 years imprisonment. In my view the aggregate term should be not less than the maximum penalty for a single offence. Allowing for the need to accumulate the aggregate sentence on 12 months of the sentence for the State offence, I would impose an aggregate sentence of 19 years imprisonment, giving a total sentence of 20 years. I would fix a non-parole period of 13 years.
WALTON J: I agree with Price J.
PRICE J: This is a Crown appeal brought by the Commonwealth Director of Public Prosecutions ("the Commonwealth Director"), pursuant to s 5D of the Criminal Appeal Act 1912 (NSW), against the sentences imposed on Bryan Walter Beattie ("the respondent") by his Honour Judge Craigie SC ("the judge") at the District Court of NSW on 13 June 2017.
[14]
The total effective sentence was 10 years imprisonment, commencing 5 February 2015 and expiring on 4 February 2025, with a non-parole period of 6 years imprisonment. The respondent is eligible to be released on parole on 4 February 2021.
The Commonwealth Director's amended notice of appeal identifies the following grounds:
"Ground 1: The sentencing judge erred in his application of the totality principle.
Ground 2: The sentence imposed in respect of each of sequences 3-19 and 21-24 was manifestly inadequate.
Ground 3: The overall effective sentence and resulting non-parole period was manifestly inadequate."
The Commonwealth Director does not challenge the appropriateness of the sentence for sequence 1.
[15]
Facts
A lengthy statement of agreed facts was tendered, which the judge recounted on sentence. An outline of the agreed facts is as follows:
The respondent came to the attention of the authorities in 2014 whilst using a particular child abuse website that facilitated the trading in, and exchanging of, child abuse material. He registered to the website on 10 February 2012 with the email address "bryanb73@bigpond.net.au" and operated under the username "bryanb732000". The respondent posted comments to the website stating:
"I love boys! Especially asian boys.;) I have pics and vids to swap if your interested. Love a like minded friend :)".
He also posted non-explicit images of pre-pubescent Asian boys and commented (ROS 3):
"…[T]hey were taken by a friend of mine in the Philippines and have only been given to me. But they are real guys I know over the Net."
Investigations into the financial movements of the respondent revealed that he had made extensive money transfers through Western Union to the Philippines between 2006 and 2012. The payments ranged between $12 and $540 at a time, with the majority being $100 at a time. Most of the payments were made to a person nominated as "Herwin Satingin" ("Satingin") of Bataan in the Philippines.
On 19 December 2014, police attended the respondent's flat in Surry Hills where they executed a search warrant. The respondent was co-operative during the search, pointing out a number of computer and electronic storage devices belonging to him. The particular devices of interest to the authorities were a Lenovo laptop and a Western Digital external hard drive; the respondent admitted they were his and that he was the sole user of the devices. He further assisted investigators by providing the password to his laptop.
[16]
Sequence 1
The following is a short summary of sequence 1. A full forensic review of the devices found 35 picture files and 22 video files that were identified and categorised as child abuse material on the laptop, and 156 picture files and 106 video files that were identified and categorised as child abuse material on the hard drive. The images and videos categorised were highly disturbing, distressing and offensive, and many involved pre-pubescent Asian male children. Approximately 71 per cent of the video files were categorised as 'category 4' on the Child Exploitation Tracking Scheme ("CETS") scale.
Included amongst the video files on the hard drive was material recorded by the respondent during the course of his offending between March and November 2012, which formed the basis of the remaining Commonwealth offences. These offences involved the respondent, who was located in Sydney, paying for and directing live sexual acts between adults and children located in the Philippines, via a real-time video link and by typing instructions to Satingin. Approximately 17 children appear in the videos, aged from younger pre-pubescent boys to older pubescent boys. The offences against the Code are briefly summarised below.
[17]
Sequences 3 and 4
On 9 March 2012, the respondent paid for, and instructed, acts amounting to the sexual assault of two Filipino boys, one pre-pubescent and one pubescent. The sexual assaults are recorded in five sequential videos, totalling approximately 14 minutes in duration. The videos depict each child performing oral sex on Satingin.
[18]
Sequences 5 and 6
On 29 March 2012, the respondent paid for, and instructed, acts amounting to the sexual assault of two Filipino boys, both pre-pubescent, by Satingin. The sexual assaults are recorded in 21 sequential videos, totalling approximately 30 minutes in duration.
The videos depict acts including Satingin masturbating both children, one child performing oral sex on Satingin and the other child, and Satingin performing oral sex on one of the children. The agreed facts describe Satingin taking hold of one children's face and forcing it towards the camera whilst that child performed oral sex on the other child. The respondent can be heard typing his instructions throughout the videos.
[19]
Sequences 7 and 8
On 12 April 2012, the respondent paid for, and instructed, acts amounting to the sexual assault of two Filipino boys, one pre-pubescent and one pubescent, by Satingin. The sexual assaults are recorded in eight sequential videos, totalling approximately 14 minutes in duration.
The videos depict acts including mutual masturbation and oral sex being performed by one child on Satingin and vice-versa. At one point, Satingin ejaculates into the mouth of one of the children, and directs that child to regurgitate the semen onto Satingin's stomach. Satingin then seizes the child's face and turns it towards the camera. The child attempts to smile but there is a look of disgust on his face due to semen remaining in his mouth. One child then performs oral sex on the other child. When he momentarily stops, Satingin grabs the back of his head and forces him to continue.
[20]
Sequence 9
On 2 August 2012, the respondent paid for, and instructed, acts amounting to the sexual assault of a pre-pubescent Filipino boy by Satingin. The sexual assault is recorded in nine sequential videos, totalling approximately 25 minutes in duration.
The videos consisted largely of the child being forced to perform oral sex on Satingin. Occasionally Satingin stops the child, manipulates the screen so it shows his and the child's face, and then kisses the child on the lips whilst looking towards the computer screen. Santingin then takes hold of the back of the child's head and directs him to continue performing oral sex. When Satingin ejaculates, the child spits the semen onto Satingin's stomach, and then Satingin begins performing oral sex on the child.
[21]
Sequences 10 and 11
On 6 August 2012, the respondent paid for, and instructed, acts amounting to the sexual assault of two Filipino boys, one pre-pubescent and one pubescent, by Satingin. The sexual assaults are recorded in nine sequential videos, totalling approximately 20 minutes in duration.
The videos depict acts including one child masturbating Satingin and the other child masturbating himself. At some point, the respondent appears on the right hand side of the screen and Satingin waves to him. When Satingin commences performing oral sex on one of the children, the respondent can be seen smiling. Later the respondent is also depicted raising his thumb in approval while motioning his right arm, appearing to masturbate.
[22]
Sequence 12
On 11 August 2012, the respondent paid for, and instructed, acts amounting to the sexual assault of a Filipino boy, who was pre-pubescent and one of the youngest of the children, by Satingin and an adult female. The sexual assault is recorded in eight sequential videos, totalling approximately 30 minutes in duration.
The child was forced to have penile vaginal intercourse with the adult female on three occasions, during which she physically inserted the child's penis into her vagina. The adult female also has sex with Satingin in front of the child. After being forced to perform oral sex on the adult female, the child is then forced to perform oral sex on Satingin, who ejaculates into the child's mouth, causing him to vomit. The child is then made to masturbate himself and expose his penis to the camera. At various points throughout the videos the child was visibly embarrassed and attempted to cover his genitals, and at one stage the child curls into a ball and tries to hide.
[23]
Sequence 13
On 17 August 2012, the respondent paid for, and instructed, acts amounting to the sexual assault of a Filipino boy, who was pre-pubescent and one of the youngest of the children, by Satingin. The sexual assault is recorded in five sequential videos, totalling approximately 20 minutes in duration.
The videos depict acts including mutual masturbation and Satingin forcing the child to perform oral sex on him by pushing the child's head down and forcing his penis further into the child's mouth. When Satingin ejaculates, the child vomits. The child is then forced to masturbate himself and expose his penis to the camera.
[24]
Sequences 14 and 15
On 24 August 2012, the respondent paid for, and instructed, acts amounting to the sexual assault of two Filipino boys, both pre-pubescent, by Satingin. The sexual assaults are recorded in 10 sequential videos, totalling approximately 35 minutes in duration.
The videos depict acts including two children standing naked and masturbating themselves. When Satingin enters the room, the children are forced to engage in a variety of sexual acts upon themselves, each other, and Satingin. Satingin also performs oral sex on one of the children, before both children were made to perform oral sex on each other. At the end of the videos, one child ejaculates over himself. He wipes himself with a dirty towel from the floor and lights a cigarette.
[25]
Sequences 16, 17, and 18
On 10 September 2012, the respondent paid for, and instructed, acts amounting to the sexual assault of three Filipino boys, one pubescent and two pre-pubescent, by Satingin. The sexual assaults are recorded in 14 sequential videos, totalling approximately 38 minutes in duration.
At the beginning of the videos, the respondent appears on the right hand side of the screen. He waves at the children and the children wave back. Satingin and the three children then engage in a variety of sexual acts, including one child performing oral sex on Satingin whilst the second child performs oral sex on the third child. Satingin ejaculates onto the computer desk, and then the children are forced to perform oral sex upon one another and masturbate themselves until each ejaculates onto the desk. One child then displays his anus to the camera before rubbing lubricant over his anus and inserting a finger. Satingin manipulated the camera to zoom in on this act.
[26]
Sequences 19 and 20
On 1 October 2012, the respondent paid for, and instructed, acts amounting to the sexual assault of two Filipino boys, one pubescent and one pre-pubescent, by Satingin. The sexual assaults are recorded in five sequential videos, totalling approximately 21 minutes in duration.
The videos depict acts including one child performing oral sex on Satingin to the point of ejaculation while the other child masturbates himself. The first child then looks at the computer screen to read instructions given by the respondent. The child points to his cheek, and then recommences performing oral sex upon Satingin, doing so to make the adult's penis protrude through his cheek.
[27]
Sequences 21 and 22
On 6 October 2012, the respondent paid for, and instructed, acts amounting to the sexual assault of two Filipino boys, both pre-pubescent, by Satingin. The sexual assaults are recorded in 20 sequential videos, totalling approximately 54 minutes in duration.
The videos commence with the children masturbating themselves, before Satingin commences anal intercourse with one of the children. Satingin was described in the agreed statement of facts as being rough and forceful in his thrusting. The sexual assault continues until Satingin ejaculates onto the back and buttocks of the child. The children and Satingin then exposed their penises to the camera, before one child performs oral sex on the other.
[28]
Sequences 23 and 24
On 10 November 2012, the respondent paid for, and instructed, acts amounting to the sexual assault of two Filipino boys, one pubescent and one pre-pubescent, by Satingin. The sexual assaults are recorded in 15 sequential videos, totalling approximately 17 minutes in duration.
The videos depict acts including self-masturbation and oral sex. At one point, Satingin begins masturbating in one child's face, before inserting his penis into the child's mouth and forcing the child to perform oral sex upon him.
[29]
The respondent's subjective case
The respondent was born on 28 February 1973 and was 39 years old at the time of his offending. He was brought up by his parents in the Wagga Wagga region and had a generally positive upbringing, although he described his father as emotionally abusive and harsh. Both parents worked hard to provide him with financial and educational support as well as encouraging his passion for music.
After completing his secondary education, he commenced a Bachelor's degree in music and education at the University of New South Wales. After completing three years of the course, he left due to medical issues. The respondent worked in a Sydney hotel in various roles for 17 years. At the time of his arrest, he was working in accounts at the hotel.
The respondent's sexual history included a heterosexual relationship for two years when he was 17 years old. His first homosexual encounter was with a sex worker when he was 21 years old. No-one close to him knew about his sexual identity and he was fearful of meeting people in gay clubs. The respondent has had a few long-term relationships, but was not in a formal relationship at the time he went into custody.
In an affidavit that was tendered before the judge, the respondent explained how he became involved with people in the Philippines. Satingin was a performer on an adult sex webcam site where he had sex with younger men. The respondent paid to watch his performances on the website.
Satingin began performing private shows on Skype for the respondent. This led to him asking the respondent whether he liked younger males. Satingin had sex with men above 18 years and some younger than 18 years. Satingin asked whether the respondent liked "even younger", to which the respondent replied "yes".
The respondent began sending money through Western Union directly to Satingin, in return for watching him have sex with children. Satingin would ask the respondent for directions as to which acts he wanted to see the children or him perform. The respondent would type directions to Satingin of what he wanted to see.
The respondent stated that his contact with Satingin did not lead to contact with any other people for the same purpose and that he ceased contact with Satingin because he had doubts about what he was doing and whether it was wrong. Satingin contacted him numerous times to ask if he wanted to talk or watch more shows, however the respondent ignored him and eventually the messages stopped.
[30]
Some findings by the judge
In considering the respondent's subjective case, the judge found that there was nothing in the respondent's personal background that readily explained his offending, and went on to remark that "[n]otwithstanding difficulties in his own relationship with his father, [the respondent] is a person who in many respects presents as quite 'normal', if I could use that somewhat tendentious term" (ROS 36). His Honour found that the respondent, but for his offending, indicated a past of "otherwise good and hardworking character" (ROS 66), with no prior contact with the criminal court. His Honour observed, however, that (ROS 66):
"In offences such as those before the Court… that is of much less weight than in other instances. Where there is predatory conduct relating to sexual abuse of children; whether indirect in providing part of the market for child abuse material by possessing it, or more direct as in the case of the Commonwealth matters before the Court, good character is of markedly less weight than in other areas of offending."
His Honour said (ROS 66):
"It has long been the view of courts that all children are inherently vulnerable and require the protection of the law. The victims in the present instance were amongst the most vulnerable of the vulnerable. Located in a poverty stricken environment where a man from a prosperous western country could, via technology, exploit them, using a sexually perverted local criminal in a manner that was either callous on the part of [the respondent], or at least delusional and self-deluding in hiding behind [the respondent's] several rationalisations…. I repeat, I find that at all times [the respondent] at least knew that what he was doing was morally reprehensible. It was objectively, also, foul damaging conduct."
The judge found that the offending was not motivated by any intention to sell the images and that it was driven by the respondent's drive for sexual gratification.
The judge noted that the respondent knew that he required help for his pornography addiction, which he believed was like a drug, and his candid concession that his addiction would be difficult to stop upon release. His Honour further noted that the respondent intended to seek psychological help to ensure that he did not relapse into addiction. The judge said that the respondent generally showed a realistic appreciation of his risk of re-offending given the addictive nature of his paedophilic disorder and also the sustained nature of his offending, notwithstanding what were apparent risks.
[31]
Sentencing principles for offences of causing a child to engage in sexual intercourse or in sexual activity
Before dealing with the grounds of appeal, it is appropriate to examine the offences against ss 272.8(2) and 272.9(2) in Div 272 of the Code and to make some general observations concerning sentencing for this type of offending. Sections 272.8(2) and 272.9(2) provide:
"272.8 Sexual intercourse with child outside Australia
…
Causing child to engage in sexual intercourse in presence of defendant
(2) A person commits an offence if:
(a) the person engages in conduct in relation to another person (the child); and
(b) that conduct causes the child to engage in sexual intercourse in the presence of the person; and
(c) the child is under 16 when the sexual intercourse is engaged in; and
(d) the sexual intercourse is engaged in outside Australia.
Penalty: Imprisonment for 20 years.
272.9 Sexual activity (other than sexual intercourse) with child outside Australia
…
Causing child to engage in sexual activity in presence of defendant
(2) A person commits an offence if:
(a) the person engages in conduct in relation to another person (the child); and
(b) that conduct causes the child to engage in sexual activity (other than sexual intercourse) in the presence of the person; and
(c) the child is under 16 when the sexual activity is engaged in; and
(d) the sexual activity is engaged in outside Australia.
Penalty: Imprisonment for 15 years."
The offences in Div 272 of the Code were introduced in the Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 (Cth) ("the Crimes Legislation Amendment Act"). Section 272.8 addressed the offences in the now repealed ss 50BA and 50BB of the Crimes Act 1914 (Cth), and increased the maximum penalty of these offences from 17 to 20 years imprisonment. Section 272.9 addressed the offences in the now repealed ss 50BC and 50BD of the Crimes Act 1914 (Cth), increasing the maximum penalty from 12 years imprisonment to 15 years imprisonment. The Explanatory Memorandum of the Crimes Legislation Amendment Act states that the high maximum penalty of these offences "reflects the seriousness of the harm committed against children".
During the second reading speech of the Crimes Legislation Amendment Bill, the then Minister for Home Affairs, Mr Brendan O'Connor, highlighted how the legislation aimed to address the challenges of protecting children in real and virtual environments (House of Representatives, Parliamentary Debates (Hansard), 4 February 2010 at 408−410):
"We have a duty to ensure that… Commonwealth laws provide a significant deterrent to abuse and a sound basis for prosecuting offenders. Equally, rapidly changing technologies and the anonymity that the internet provides have resulted in unprecedented opportunities for child sex offenders. Our laws need to keep pace with the speed of technological change. … Unfortunately, the internet is creating demand for new material of ever greater levels of depravity and corruption, and the technology provides new opportunities for abuse to take place. ... Changes in technology mean that offenders can commit sexual offences against children online without meeting in 'real life'."
[32]
Ground 1: The sentencing judge erred in his application of the totality principle.
[33]
Argument
The Commonwealth Director submitted that the degree of accumulation applied by the judge was insufficient to reflect the total criminality of the offences and was therefore an erroneous application of the totality principle.
The Commonwealth Director pointed to the fact that the period of accumulation for sequences 7 and 8 was three months, for offending assessed "towards the high end of objective offending" (ROS 62); the same period of accumulation applied to the sentences for sequences 5 and 6, with an assessment "in the low to moderate range of objective seriousness" (ROS 62). The Commonwealth Director also observed that sequences 21 and 22, which were found to be "towards the high end of objective seriousness" (ROS 65), and sequences 23 and 24, which occurred over a month later, were not accumulated at all.
Further, the sentence imposed for sequence 12, assessed to be "towards the very high end of the range of objective seriousness" (ROS 63), was made entirely concurrent with the sentences imposed for sequences 13 to 20, although the various offences occurred up to almost two months apart and involved different victims. The Commonwealth Director submitted that this concurrency left the particular conduct in sequence 12, including anal intercourse with a pre-pubescent child "essentially unpunished".
The total period of accumulation between sequence 3 and sequence 24 was 21 months. The Commonwealth Director further submitted that this was "simply insufficient" where the live videos involved at least 17 child victims, the majority of whom were pre-pubescent, and some of the acts in which the children were engaged would have been classified as CETS 4 or 5.
In oral argument, the Commonwealth Director accepted that the judge was alive to the principles of accumulation and concurrence, but argued that his Honour did not apply those principles properly.
The respondent submitted that the judge correctly identified the relevant sentencing principles and that there was no identified mistake in their articulation. Accordingly, the appeal must establish that his Honour's decision was "unreasonable or plainly unjust": House v The King (1936) 55 CLR 499; [1936] HCA 40 pp 504-505 (Dixon, Evatt and McTiernan JJ) ("House").
It was pointed out that this was not a case where his Honour failed to accumulate at all. Rather, the judge took great care in overlapping and accumulating sentences to arrive at the final outcome. The overall structure of the sentences were said not to show any misunderstanding or error in relation to accumulation such that appealable error, as understood in House, could be inferred. The primary objective was to ensure that the overall sentence was just and appropriate.
[34]
Consideration
The judge faced a difficult sentencing task as the respondent was to be sentenced for 23 offences. There does not appear to have been any discussion before his Honour as to whether an aggregate sentence could have been imposed by application of s 53A of the Crimes (Sentencing Procedure) Act. This may have been as s 4K of the Crimes Act 1914 (Cth) provides for aggregate sentencing for summary offences only. However, in written submissions to this Court, the Commonwealth Director referred to Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8 ("Putland"), in which the High Court held that, by operation of s 68 of the Judiciary Act 1903 (Cth), s 52(1) of the Sentencing Act 1995 (NT) permitted an aggregate sentence be applied to the imposition for two or more Commonwealth offences prosecuted on indictment.
In Putland, Gleeson CJ in dismissing the argument that s 4K gave rise to a negative implication excluding the application of s 52 of the Sentencing Act 1995 (NT) in the case of Commonwealth offences dealt with on indictment, said at [14]:
"14 This argument is undermined by part of the very reasoning that leads to the conclusion that s 4K(3) and (4) apply only to summary proceedings. Subsection (4) is to be read together with sub-s (3). Subsection (3) was necessary in relation to summary proceedings, but it was unnecessary in relation to proceedings on indictment, because of the background of State and Territory laws providing for joinder of indictable offences. The appellant's argument concerning the negative implication must apply to both sub-sections. Yet this would be a most curious and oblique method of excluding the possibility of joinder of charges in the case of proceedings on indictment in respect of federal offences. …"
And at [15]:
"15 There is, however, one significant respect in which s 4K(4) tells against the appellant's case. It has already been noted that s 4K(4) was in the Crimes Act, and before that, the Acts Interpretation Act, before the inclusion of Pt 1B. Part 1B, in its statement of principles to be applied in sentencing for federal offences, covers both summary and indictable offences. It therefore covers cases to which s 4K(4) applies. It follows that aggregate sentencing, as provided for in s 4K(4), is not antithetical to the provisions of Pt 1B. Those provisions must be able to co-exist with aggregate sentencing, because they exist together in the legislation, and Pt 1B was introduced into legislation that already provided (in relation to summary proceedings) for aggregate sentencing. That is to be kept in mind when considering the appellant's next argument."
[35]
Ground 2: The sentence imposed in respect of each of sequences 3-19 and 21-24 was manifestly inadequate.
[36]
Argument
The Commonwealth Director complained that a manifestly inadequate sentence was imposed in respect of each offence against the Code, save for sequence 20, as well as the total effective sentence being manifestly inadequate. The Commonwealth Director pointed to the notional undiscounted starting points of those offences which have a maximum penalty of 20 years imprisonment and to the judge's findings as to objective seriousness and contended that the starting points and sentences were not reflective of the objective seriousness of the offences, which amounted to a grave pattern of sexual exploitation directed by the respondent.
It was submitted by the Commonwealth Director that while both Rivo and Le Gassick contain factual similarities with the subject offending, these cases are limited in their ability to provide guidance. Rivo was said to concern two counts of offences that carried a maximum penalty of 15 years, whereas the present appeal concerns 21 counts that have a 20 year maximum. Furthermore, it was not known how many children were involved. While Le Gassick dealt with offences against ss 272.8 and 272.9 of the Code (amongst others), it was not a decision of an intermediate appellate court and had many distinguishing features.
The Commonwealth Director put to the Court that in the circumstances where there was no body of comparable sentences, the Court's assessment should be based upon general sentencing principles with regard to the maximum penalty as a guidepost.
The respondent accepted that the available data is insufficient to show an acceptable sentencing range, but submitted when compared with the sentences imposed in Rivo and Le Gassick, the respondent's sentences were not manifestly inadequate.
In response to the Commonwealth Director's argument as to the undiscounted starting points of the sentences, the respondent put to the Court that the Commonwealth Director's approach over-emphasised the categorisation of offences and neglected the instinctive synthesis required in the sentencing process.
The respondent pointed out that the undiscounted starting points do not purport to represent a sentence imposed for objective seriousness alone, but reflect a sentence that takes into account the respondent's subjective circumstances and prospects of rehabilitation. Those factors were informed, not only by the evidence tendered on sentence, but also by the judge's advantage in seeing and assessing the respondent in giving detailed oral evidence.
[37]
Consideration
In order to succeed on this ground, the Crown must establish that the judge imposed a sentence that was below the range of sentences that could be justly imposed for the offence consistently with sentencing standards. "Sentencing is a discretionary judgment and there is no single correct sentence for an offender and an offence": Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [24].
There is no pattern of previously decided cases for an offence contrary to s 272.8(2) of the Code that may act as a yardstick against which the sentences imposed by the judge may be measured or are illustrative of approaches taken by other sentencing judges: R v Nakash [2017] NSWCCA 196 at [13].
The sentence of 6 years imprisonment for the rolled-up count contrary to s 272.14 of the Code, which was considered in Rivo not to be manifestly excessive, is of limited assistance as the maximum penalty for that offence is 15 years imprisonment, whereas the maximum penalty for a s 272.8(2) offence is 20 years imprisonment.
In Le Gassick, the offender was sentenced in the County Court of Victoria for 25 offences, five of which were offences contrary to s 272.8(2) of the Code. The total sentence imposed on the offender was 11 years imprisonment with a minimum term of 8 years. Included in the sentence were terms of imprisonment of 18 months for each of the s 272.8(2) offences. The Commonwealth Director did not appeal against the inadequacy of the sentence. As Le Gassick is not a sentencing decision of an intermediate appellate court and there are matters of factual difference, not much assistance is provided by this case.
Notwithstanding the absence of comparative sentencing decisions, manifest inadequacy may be shown by consideration of all of the matters that are relevant to fixing the sentence: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [60].
The Commonwealth Director's argument on this ground focussed on the findings by the judge of objective seriousness, the maximum penalty of 20 years imprisonment, the undiscounted starting points of the sentences and the head sentences imposed after the reduction of 30 per cent for the combined discounts, as detailed in the Table at [114] above. Particular complaint was made about the undiscounted starting point of 10 years 8 months for sequence 12 having regard to the judge's finding that the objective seriousness of this offence was "towards the very high end".
[38]
The residual discretion
The question remains whether this Court should intervene and re-sentence the respondent. There is a residual discretion to decline to intervene even though the sentence is manifestly inadequate. The Commonwealth Director is obliged to satisfy the Court that the residual discretion should not be exercised: CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9.
In Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49, the majority (French CJ, Crennan and Kiefel JJ) observed at [1] that the primary purpose of Crown appeals was to "lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons". Their Honours described the primary purpose of laying down principles as a "limiting purpose" and said at [36]:
"36 … It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion."
Their Honours observed that other circumstances may combine to produce injustice if a Crown Appeal is allowed. Their Honours said at [43]:
"43 … They include delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent's release on parole or unconditionally, and the effect of the re-sentencing on progress towards the respondent's rehabilitation. They are relevant to the exercise of the residual discretion. The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual."
The Commonwealth Director submitted that the sentences imposed by the judge were inconsistent with the sentencing standards expected by the community, and inconsistent with the paramount importance of robust general deterrence and strong denunciation of the sexual abuse of vulnerable young children, particularly those living in poverty overseas. It was contended that the sentences were an "affront to the administration of justice", the inadequacy of which were so marked that the need for their correction to maintain public confidence in the criminal justice system outweighed other considerations.
The Commonwealth Director pointed to other matters that were said to be relevant to the exercise of the residual discretion:
1. there has been no delay in the institution of the appeal; and
2. the respondent's release to parole is not imminent and the passage of time has been insufficient for the respondent to be able to demonstrate substantial rehabilitation since being sentenced.
[39]
Additional material admitted on re-sentencing
In an affidavit sworn 15 September 2017, the respondent refers to the increased stress, sleeplessness and anxiety that he experienced before being sentenced by the judge. The respondent states that when he was advised that the Commonwealth Director was considering an appeal, he went back to that mental state.
The respondent confirms his willingness and determination to complete programmes in prison like CUBIT and CUBIT Outreach ("CORE"). He states that he is genuinely sorry and disgusted by what he has done and is determined to ensure this never happens again.
In an affidavit sworn on 19 September 2017, Ms Mikaela Eldridge, the respondent's solicitor, states that the respondent had advised her that he had received written confirmation from Corrective Services that his name was on the list for both CUBIT and CORE programmes and he remained on the list despite being moved from Bathurst Correctional Centre to Junee Correctional Centre.
[40]
Re-sentence
In determining the sentence to be passed, the Court must impose a sentence that is of a severity appropriate in all the circumstances of the offence: s 16A(1) of the Crimes Act 1914 (Cth). In addition to any other matters, the Court is obliged to take into account such of those matters in s 16A(2) of the Crimes Act 1914 (Cth) that are relevant and known to the Court.
For the purpose of re-sentencing, his Honour's findings as to the objective seriousness of the offences and as to the respondent's subjective case have not been challenged. Accordingly, I intend to adopt all of these matters in re-sentencing the respondent.
Furthermore, the discount of 25 per cent for the pleas of guilty and 5 per cent for past assistance to authorities has not been in dispute. A discount of 30 per cent will be allowed on re-sentence.
The offences against the Code constitute a grave pattern of conduct by the respondent whereby he orchestrated and paid for the gross sexual abuse of Filipino boys for his own sexual gratification. Although he did not physically commit the sexual assaults, he encouraged and directed the victimisation of these children, through his instructions to the actual perpetrators at the time the videos were being produced and watched by him. The video recordings of the sexual molestation of these innocent children were preserved as a record for the respondent's own use.
The respondent's guilty pleas are relevant to the respondent's remorse which was otherwise expressed in his testimony before the judge and the other material tendered during the proceedings on sentence and re-affirmed in the respondent's affidavit tendered in this Court. I accept that he is remorseful and has shown contrition for the offences: s 16A(2)(f) of the Crimes Act 1914 (Cth).
The respondent's desire to ensure that his offending is not repeated upon his release from custody has been further demonstrated by his enrolment in the CUBIT and CORE programmes.
A matter that was raised in written submissions by the respondent was that his offending was contextualised by his diagnosis of paraphilic disorder. In making this submission, the respondent was referring to what was said by Kirby J in Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 at [126] ("Ryan"):
"126 The appellant's paedophilia is an explanation for his sexual attraction to young persons. It is not a defence to the criminal conduct in which he engaged. However, depending on the evidence or other material available to the sentencing judge, it might be appropriate, in sentencing such an offender, to consider the common cause of his multiple offences as that cause is relevant to evaluating the totality of his wrongdoing. Doing this might allow a court, sentencing him, to view his actions in context by reference to a major contributing cause of his offending, if not the major cause of it."
[41]
The aggregate term of imprisonment for the offences against the Code is 13 years imprisonment. The 12 months accumulation of the sentence for sequence 1 with the offences against the Code was not challenged on appeal. When the sentence for sequence 1 is included, the overall effective sentence is 14 years imprisonment. The minimum term of imprisonment will be a period of 10 years.
I appreciate, as Basten JA points out at [7] above, that the overall effective sentence I propose is "11.5 per cent of the total of the putative sentences for the individual offences". However, the principle of totality requires that the aggregate sentence must be "just and appropriate" and the respondent must not be subject to a crushing sentence: Mill v The Queen (1988) 166 CLR 50; [1988] HCA 70; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26.
Accordingly, I propose the following orders:
1. Crown appeal allowed.
2. The sentences imposed for sequences 3 to 24 inclusive by Craigie SC DCJ in the District Court of New South Wales on 13 June 2017 are quashed.
3. In lieu thereof, for sequences 3 to 24 inclusive, the respondent is sentenced to an aggregate term of imprisonment of 13 years which is to commence on 5 February 2016.
4. The overall effective sentence for sequence 1 and sequences 3 to 24 inclusive is 14 years imprisonment commencing on 5 February 2015 and expiring on 4 February 2029, with a non-parole period of 10 years expiring on 4 February 2025.
5. The earliest date that the respondent will be eligible to be released on parole is 4 February 2025.
[42]
ADDENDUM
THE COURT: After publication of the judgment, the Director raised with the Registrar a problem with the formulation of the sentence. Section 19AJ of the Crimes Act 1914 (Cth) precludes the Court fixing a single non-parole period in respect of both federal and State sentences. The "non-parole period of 10 years" was intended to reflect the accumulation of the federal sentence on 1 year of the sentence for the State offence. A non-parole period of 9 years was intended to apply to the federal sentence. Accordingly, [1] and [212] have been amended to remove the references to a non-parole period of 10 years; orders 4 and 5 above are replaced with the following:
(4) A non-parole period of 9 years is fixed with respect to the aggregate sentence of 13 years commencing on 5 February 2016 and terminating on 4 February 2025.
(5) The overall effective sentence for sequence 1 and sequences 3 to 24 inclusive is 14 years imprisonment commencing on 5 February 2015 and expiring on 4 February 2029.
(6) The earliest date that the respondent will be eligible to be released on parole is 4 February 2025.
[43]
Endnotes
[2014] VCC 1288.
Le Gassick at [4].
Le Gassick at [9].
Le Gassick at [16].
Le Gassick at [38].
Le Gassick at [55]-[56].
[2012] VSCA 117 (Neave and Osborn JJA and King AJA).
Rivo at [11].
Rivo at [14].
Rivo at [43].
Rivo at [44].
[2014] EWCA Crim 2995 (Lloyd Jones LJ, Nicol and Lindblom JJ).
[2011] 1 Crim App R (S) 58; [2010] EWCA Crim 1996 (Moses LJ, Holman and Clarke JJ).
Charnley at [6].
Charnley at [22].
Charnley at [14], dealing with count 23.
Charnley at [21].
Charnley at [19].
R v Pitts [2016] NSCA 78.
Canadian Criminal Code, ss 465(1)(c) and 271(a).
(1981) 147 CLR 383 at 389; [1981] HCA 31.
Rivo at [35].
Crimes Act, s 61J.
(1988) 166 CLR 59; [1988] HCA 70.
(1982) 149 CLR 1; [1982] HCA 30.
Ryan at 21.
Ryan at 22-23.
Mill at 62.
Thomas D A, Principles of Sentencing (2nd ed, Heinemann, 1979), pp 56-57.
Mill at 63; see also Postiglione v The Queen (1997) 189 CLR 295 at 307-308; [1997] HCA 26.
[2010] SASC 146 at [6].
See, eg, M Bagaric and T Alexander, "Rehabilitating Totality in Sentencing: From Obscurity to Principle" (2013) 36 UNSWLJ 139 at 155-159.
See R v MAK at [33] below.
(1994) 72 A Crim R 301.
Clinch at 308.
[2006] NSWCCA 381; 167 A Crim R 159 (Spigelman CJ, Whealy and Howie JJ).
R v MAK at [16].
R v MAK at [17].
R v MAK at [18].
Cameron v R [2017] NSWCCA 229 at [96]-[97] (Hamill J).
A Ashworth, Sentencing and Criminal Justice (6th ed, Cambridge University Press, 2015) at 8.4.2; A Lovegrove, Sentencing the Multiple Offender: Judicial Practice and Legal Principle (Research and Public Policy Series No 59, Australian Institute of Criminology, 2004).
[44]
Amendments
08 December 2017 - Added Junior Counsel to cover sheet
15 December 2017 - Orders amended
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 15 December 2017
Parties
Applicant/Plaintiff:
Director of Public Prosecutions (Cth)
Respondent/Defendant:
Beattie
Legislation Cited (7)
Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010(Cth)
I would also note that, in assessing the objective seriousness of the offending, this Court did not have access to the video recordings which formed the basis of the various charges under the Commonwealth Code. It may be assumed that that is not unusual. The courts are therefore reliant on the brief descriptions given in statements of fact prepared by the prosecuting authority for the sentencing process. There is a real risk that the true impact of the offending on the victims, being children overseas (in this case in the Philippines), is underestimated. Of course it is true that the criminal courts do not usually see graphic depictions of sexual offending. That too, however, may result in an inaccurate appreciation of the effect of the offending on the victim. However, the court usually has a victim impact statement which provides some reflection of the effect of the offending. That is not so in the present case.
There are three issues, primarily by way of expansion on the reasoning of Price J, but also indicating why I would impose a more severe sentence, which are addressed below. First, it is legitimate to ask in what sense it was inappropriate for the trial judge to impose an overall sentence period of approximately 9.5% of the total of the individual sentences, whereas this Court would impose a sentence of 11.5% of the total of the putative sentences for the individual offences. This involves consideration of the "totality principle".
Secondly, it is appropriate to give some further consideration to the respondent's submission that the Court should not intervene because there is no sufficient body of relevantly analogous authorities demonstrating error on the part of the sentencing judge. That task will be addressed first.
Thirdly, there is a brief note as to why the De Simoni principle is not engaged.
In dismissing the challenge to the sentencing on ground 2 as not reasonably arguable the Court noted the following factors: [9]
"• the maximum penalties of 10 and 15 years applicable to the offences in issue;
• the rolled-up nature of the counts (the first count covered six separate incidents and the second count covered 12 separate incidents);
• the objective seriousness of the sexual activity involved, having regard to the age and number of the children and the evidence as to the nature of the conduct in which they were involved;
• the increasing depravity in the conduct the subject of the offending;
• the direct involvement and dominant role of the applicant in controlling the content of the overseas activities;
• the very significant need for general deterrence;
• the need for specific deterrence having regard to the diagnosis of paedophilia, the course of the offending and the continuation of the offending after a first search was conducted by investigating police."
In response to a submission that the offending "amounted to one extended episode" the Court said there was "a continuing course of conduct but each of the episodes forming the subject of the rolled up counts comprises conduct which was individually culpable and distinct in time." [10]
The Court noted that for those offences the judge had passed a sentence of 2 years imprisonment on count 4, and 4 years imprisonment on count 5. The Court noted certain other offences, including the fact that on 35 occasions over a period of about 10 weeks the offender had used the internet to contact adults in the Philippines and give instructions as to the sexual activity which he wished the adults and children to engage in. With respect to three charges involving children engaging in non-penetrative activity, the Court considered that a sentence following a trial in the region of 7 years imprisonment would be warranted. The sentence substituted, taking account of the pleas of guilty, was 4 years imprisonment on each count. The Court also noted that "had they stood on their own a higher sentence in the region of 5 years imprisonment might well have been merited." [14]
The details of the count involving penetrative sexual activity conducted by video link were set out in the judgment. [15] The Court indicated that a starting point following a trial would have been in the region of 13 years imprisonment but, allowing for the plea of guilty, the sentence should be one of 8 years imprisonment. The total sentence imposed was imprisonment for 12 years. With respect to the sentences of 4 years imprisonment imposed for counts 1 to 19 (including counts 4 and 5) the Court did not intervene, but said that a proper sentence following trial would have been in the region of 7 years and a higher sentence (that is, greater than 4 years) would have been merited even on a plea of guilty. [16]
The Court also said: [17]
"[T]he level of sentencing in our view was wholly inadequate and did not begin to meet the gravity of these offences or reflect the fact that the victims were young, vulnerable children. The fact that they were on the other side of the world, in countries such as the Philippines, but that modern communications enabled the offender to procure their sexual abuse is no mitigation. It is indeed an aggravation. No doubt the offender and others like him thought he could far more easily escape detection by committing these offences in that way by payment through a credit card than if he had dared to be present and commit these offences within this country. What a public outcry there would have been if the children had come from the United Kingdom and a sentence had been passed of no more than 5 years imprisonment."
How that reasoning is to be reconciled with the conclusions in relation to counts 4 and 5, being the appalling offending expressly identified and set out above, is not immediately apparent.
The Director also advised that the Canadian Criminal Code does not appear to contain analogous sections but relies upon conspiracy to capture conduct of this kind. The Court was referred to the judgment in R v Pitts, a decision of the Nova Scotia Court of Appeal. [18] The offender Pitts was charged with three counts relating to the possession, accessing and making of child pornography and eight counts of conspiring to commit sexual assault on a child. There is little detail provided in the judgment as to what occurred on the webstreaming link to the Philippines, but it appears to have involved penetrative sexual activities between adult women and a number of girls between the ages of eight and 11 years. The maximum penalty in respect of the conspiracy charge was 10 years imprisonment. The offender was sentenced to 5 years imprisonment on each count, to be served concurrently. [19] The offender's appeal against the sentences was dismissed.
In Mill the Court referred to "[t]he totality principle", describing it as "a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences." [27] A passage from the second edition of Thomas, Principles of Sentencing [28] was adopted, but the passage was descriptive and provided little assistance in applying the principle. It referred to sentences "properly made consecutive" and required the court "to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'" having regard to "the totality of the criminal behaviour". [29]
In R v Walkuski, [30] Doyle CJ stated that "the concept of totality reflects two particular considerations. One of them is proportionality. The sentence must bear an appropriate proportion to the overall criminality involved. The other is mercy."
Criticisms of "proportionality" as a useful concept in this area abound in the academic literature. [31] The concept of proportionality has a number of points of reference. One relates to the consequence of the sentence, from the point of view of the offender. Thus, the proportionate hardship inflicted by a sentence is said to increase with the overall length of the sentence, but not in a "linear relationship". [32]
The idea that the severity of a sentence increases disproportionately with length was suggested by Malcolm CJ in 1994 in Clinch, [33] noting at 306:
"This case provides a graphic example of the fact that the severity of a term of imprisonment increases exponentially as it increases in length: Vaitos …. In other words, the severity of a sentence increases at a greater rate than any increase in the length of the sentence. Thus, a sentence of five years is more than five times as severe as a sentence of one year. Similarly, while a sentence of seven years may be appropriate for one set of offences and a sentence of eight years may be appropriate for another set of offences, each looked at in isolation, where both sets were committed by the one offender a sentence of 15 years may be out of proportion to the degree of criminality involved because of the compounding effect on the severity of the total sentence of simply aggregating the two sets of sentences."
After considering the facts, the Chief Justice came back to the same idea, expressing the view that the aggregate sentence of 26 years was "crushing" and was "largely the result of the exponential effect of the total length of the sentences on their severity which produces a disproportionate overall sentence …". [34] (The term "exponential" may not have been used in a technical sense.)
In R v MAK; R v MSK [35] this Court adopted the first of the propositions set out above from Clinch, stating: [36]
"The severity of a sentence is not simply the product of a linear relationship. That is to say severity may increase at a greater rate than an increase in the length of a sentence."
The Court also stated: [37]
"The second matter that is considered under the totality principle is the proposition that an extremely long total sentence may be 'crushing' upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there may be of rehabilitation and reform. Of course, in many cases of multiple offending, the offender may not be entitled to the element of mercy entailed in adopting such a constraint."
The Court went on to note the need for care in applying the totality principle so as to avoid "any suggestion that what is in effect being offered is some kind of a discount for multiple offending". [38]
The suggestion that the severity of a sentence of imprisonment increases at a greater rate than its length appears to be asserted as a fact, and one which operates generally. It may be thought by its proponents to be self-evidently true, but one would like to know how one measures "severity" and why no empirical basis is relied on for the assertion.
Disproportionate severity may arise because the offender tends to become institutionalised serving a long sentence in prison, or because the length of the sentence should have regard to the proportion of the offender's expected life which will be spent in custody. [39]
A second idea within the concept of proportionality may be that, with the increasing length of a sentence, the considerations relevant to the determination of a sentence change. Thus, as the period expands, the value of any steps already taken which promote rehabilitation (an important consideration in sentencing) may diminish.
Thirdly, although from the perspective of each victim the appropriate punishment might require each sentence to be served in full consecutively, the public interest, or at least a perception of the public interest, may reduce if the sentence is so long as to crush any hope of a normal life after the end of the imprisonment. That there is a public perception consistent with a degree of leniency being appropriate in relation to multiple sentences appears to be borne out by surveys of opinions. [40]
A similar idea may be implicit in the characterisation of a sentence as "crushing". In some circumstances that is no more than a colloquial substitute for manifestly excessive. [41] It appears to refer not to a sentence of a particular length, but to the unwanted effect of an otherwise appropriate sentence on the particular offender. A 25 year sentence may be described as "crushing" in some circumstances but not others. Why that may be so is not revealed by labelling it "crushing". [42]
A fourth element of proportionality may involve a comparison of the sentence with the sentences which may be imposed for other kinds of offending. Thus, Professor Ashworth has suggested that "[o]ne might wish to say that the sentence for 14 indecent assaults on children should remain below the normal sentence for rape". [43]
Returning to the passage from Walkuski set out at [29] above, the invocation of "mercy" as a basis for reducing the overall length of an otherwise justifiable set of sentences has also been the subject of academic debate. The primary concern has been the lack of a principled basis for the application of such a concept, which has been described as "a fragile construct … devoid of any recognisable legal foundation and … unpredictable in its application." [44] Similar language has been adopted by the Victorian Court of Appeal in describing the principle of totality which is said to "defy precision either of description or implementation". [45]
Ashworth has concluded that "the totality principle is pragmatic, with shaky theoretical foundations but a strong intuitive attraction." [46] In suggesting how the British sentencing guidelines might be adapted, Ashworth noted the approach of German law, which was to take the most serious of the offences and treat the other offences as aggravating factors, while making a comprehensive judgment of the offender's person and of the individual offences. [47] He noted empirical studies undertaken in Germany with respect to multiple burglaries demonstrating "a rough norm" indicating that the total sentence was "halfway between the punishment for the most serious crime and the sum of punishments for all the crimes." [48]
This is not the approach adopted in Australia in sentencing for individual offences; the preferred course is not to reduce the sentence imposed for the individual offences, but to increase the level of concurrency. The same effect is achieved by imposing an aggregate sentence in circumstances where it is necessary to indicate the individual sentences which would otherwise have been imposed.
The weakness of the "principle of totality" is that it provides little guidance as to how that exercise is undertaken; it therefore limits transparency. What it obscures is the need to take account of different factors in different cases. For example, where there is a single episode of criminality with one victim, but a number of charges have been laid, the principle may involve going behind the prosecutorial discretion in laying multiple charges to assess the overall culpability of the offender. In cases such as the present, different issues arise depending on one's perspective. From the offender's perspective there was a continuing episode involving multiple offences; from the victims' perspective, there were numerous separate episodes of abuse.
On 14 December 2015, the respondent pleaded guilty at Central Local Court to the following 23 counts:
1. Sequence 1: possession of child abuse material, contrary to s 91H(2) of the Crimes Act 1900 (NSW), with a maximum penalty of 10 years imprisonment; [49]
2. Sequences 3 to 19: causing a child to engage in sexual intercourse in the presence of the respondent, contrary to s 272.8(2) of the Criminal Code 1995 (Cth) ("the Code"), with a maximum penalty of 20 years imprisonment;
3. Sequence 20: causing a child to engage in sexual activity in the presence of the respondent, contrary to s 272.9(2) of the Code, with a maximum penalty of 15 years imprisonment; and
4. Sequences 21 to 24: causing a child to engage in sexual intercourse in the presence of the respondent, contrary to s 272.8(2) of the Code, with a maximum penalty of 20 years imprisonment.
For sequence 1, the State offence, the judge allowed a reduction of 25 per cent for the utilitarian value of the respondent's plea of guilty: s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW). For sequences 3 to 24, his Honour also allowed a reduction of 25 per cent, being "satisfied that the plea in the circumstance evidence a willingness to facilitate the course of justice from a very early stage" (ROS 68): s 16A of the Crimes Act 1914 (Cth). A further reduction of 5 per cent was allowed in respect of all offences for the respondent's past assistance to authorities after his arrest.
The following Table details the individual sentences imposed by the judge:
Sequence Number Term of imprisonment Commencement date Expiration date
1 1 years 3 months 5 February 2015 4 May 2016
3 4 years 5 February 2016 4 February 2020
4 4 years 5 February 2016 4 February 2020
5 4 years 5 August 2016 4 August 2020
6 4 years 5 August 2016 4 August 2020
7 6 years 5 November 2016 4 November 2022
8 6 years 5 November 2016 4 November 2022
9 4 years 5 February 2017 4 February 2021
10 4 years 5 May 2017 4 May 2021
11 4 years 5 May 2017 4 May 2021
12 7 years 6 months 5 August 2017 4 February 2025
13 6 years 5 August 2017 4 August 2023
14 4 years 5 August 2017 4 August 2021
15 4 years 5 August 2017 4 August 2021
16 5 years 5 August 2017 4 August 2022
17 5 years 5 August 2017 4 August 2022
18 5 years 5 August 2017 4 August 2022
19 4 years 5 August 2017 4 August 2021
20 3 years 5 August 2017 4 August 2020
21 6 years 5 November 2017 4 November 2023
22 6 years 5 November 2017 4 November 2023
23 4 years 5 November 2017 4 November 2021
24 4 years 5 November 2017 4 November 2021
The respondent detailed the impact that his obsession with pornography and child abuse material had on his life. He said that it destroyed his relationship with his de facto partner of almost seven years; he was looking at the material on his phone during work hours, at lunch and on breaks; and he wasn't sleeping properly because he would stay up late to watch the material.
The respondent said that he felt terrible about taking advantage of the children and their poverty. He acknowledged that he helped destroy their "childhoods and their innocence".
In oral evidence before the judge, the respondent testified that he had a compulsion to watch and be sexually gratified by pornography, including material involving children.
The respondent said that at the time of the offences, he rationalised that because the children were receiving financial payments and as he was not physically present nor committing the offences himself, he was not part of the offending.
The offending was recorded live by the respondent and stored on his laptop and external hard drive for him to access at a later date for his own sexual gratification. He stated that he did not trade the recordings nor share the video files with anyone, albeit the many online requests to do so.
The respondent expressed his "deep sense of shame" for his actions and told the judge that he recognised the damage that he had caused not only to the victims but also to their families. He stated that he realised that he was creating a need for this type of offending and wanted to stop further damage to the children that he had had contact with and also to future children. He indicated that he wanted to receive help in the form of treatment programmes both during his custody and when he is released.
The respondent assisted authorities by providing information about the offending and signing over the use of his Skype account and online identities to the Australian Federal Police.
In a report dated 30 March 2016, Dr Olav Nielssen, a psychiatrist, reported that the respondent was not thought to have a major psychiatric disorder. Dr Nielssen expressed the opinion that the respondent met "the accepted criteria for the diagnosis of homosexual paedophilia on the basis of his reported sexual arousal by images of pre-pubescent males and the salience of viewing those images over other forms of sexual activity, including with his partner". Dr Nielssen assessed the respondent as carrying a relatively low risk of further offending.
In a psychological assessment report, Dr Emma Collins, a psychologist, considered that "[r]isk assessment places Mr Beattie in the moderate range for sexual recidivism". Dr Collins stated that the respondent was motivated to engage in treatment and was likely to be accepted in the Custody Based Intensive Treatment ("CUBIT") programme as part of his sentence.
In an affidavit, Mr John Beattie, the respondent's brother, stated that the respondent was ashamed of what he had done. He accepted that he needed to completely cease these past behaviours. Mr Beattie stated that the respondent wanted to get help as soon as possible and was willing to undertake child sex offender programmes. Mr Beattie said that the respondent continued to have his support, and upon release he would be the family member and mentor to help the respondent get back to his normal life.
Mr Kent Chung, a long-time friend, stated in an affidavit that the respondent had readily taken responsibility for what he had done and regretted having contributed to the mistreatment of children.
The respondent did not have a prior criminal history.
Another finding that his Honour made was that the Commonwealth offences particularly constituted a grave pattern of sexual exploitation directed by the respondent.
His Honour considered that the grave criminality of offending in the Commonwealth offences required a strong deterrent and denunciatory response.
The judge found that the respondent's voluntary cessation of the offending was "somewhat to his credit", but that the respondent did so "primarily… out of a realisation that he might well come to the notice of Australian authorities and not because he was suddenly seized of some level of moral awareness that he did not have a capacity to recognise from the start" (ROS 67).
The judge assessed the objective seriousness of each of the offences. His Honour found that the objective seriousness of sequence 1 was in the low to moderate range.
The following Table summarises his Honour's findings and sentences imposed for the offences against the Code:
Sequence Number Maximum penalty Starting point Sentence after 30% discount Finding of objective seriousness
3 20 years 5 years 8 months 4 years Towards the middle
4 20 years 5 years 8 months 4 years Towards the middle
5 20 years 5 years 8 months 4 years Low to moderate
6 20 years 5 years 8 months 4 years Low to moderate
7 20 years 8 years 6 months 6 years Towards the high end
8 20 years 8 years 6 months 6 years Towards the high end
9 20 years 5 years 8 months 4 years Towards the middle
10 20 years 5 years 8 months 4 years Towards the middle
11 20 years 5 years 8 months 4 years Towards the middle
12 20 years 10 years 8 months 7 years 6 months Towards the very high end
13 20 years 8 years 6 months 6 years Towards the high end
14 20 years 5 years 8 months 4 years Towards the middle
15 20 years 5 years 8 months 4 years Towards the middle
16 20 years 7 years 1 month 5 years Somewhat above the middle
17 20 years 7 years 1 month 5 years Somewhat above the middle
18 20 years 7 years 1 month 5 years Somewhat above the middle
19 20 years 5 years 8 month 4 years Towards the middle
20 15 years 4 years 3 months 3 years To the lower end
21 20 years 8 years 6 months 6 years Towards the high end
22 20 years 8 years 6 months 6 years Towards the high end
23 20 years 5 years 8 months 4 years Towards the middle
24 20 years 5 years 8 months 4 years Towards the middle
The sentencing principles relevant to the assessment of the objective seriousness of offences involving the possession or dissemination of child pornography are well known. In Minehan v R [2010] NSWCCA 140 ("Minehan"), R A Hulme J (Macfarlan JA and Johnson J agreeing) said at [94]:
"94 Drawing primarily from the authorities to which I have referred, the following matters may be relevant to an assessment of the objective seriousness of offences involving the possession or dissemination/transmission of child pornography:
1. Whether actual children were used in the creation of the material.
2. The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed.
3. The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material.
4. The number of images or items of material - in a case of possession, the significance lying more in the number of different children depicted.
5. In a case of possession, the offender's purpose, whether for his/her own use or for sale or dissemination. In this regard, care is needed to avoid any infringement of the principle in The Queen v De Simoni (1981) 147 CLR 383.
6. In a case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted.
7. Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination/transmission.
8. The proximity of the offender's activities to those responsible for bringing the material into existence.
9. The degree of planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating or transmitting the material.
10. Whether the offender acted alone or in a collaborative network of like-minded persons.
11. Any risk of the material being seen or acquired by vulnerable persons, particularly children.
12. Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted.
13. Any other matter in s 21A(2) or (3) Crimes (Sentencing Procedure) Act (for State offences) or s 16A Crimes Act 1914 (for Commonwealth offences) bearing upon the objective seriousness of the offence."
In R v Porte [2015] NSWCCA 174 ("Porte"), Johnson J (Leeming JA and Beech-Jones J agreeing) referred at [65]-[70] to additional propositions to be borne in mind when sentencing for offences involving child pornography. These included that possession of child pornography creates "a market for the continued corruption and exploitation of children", that possession is not a victimless crime, and at [69]:
"69 [a]n additional feature of harm done to victims of child pornography offences was referred to by Professor Kate Warner (as her Excellency then was) in 'Sentencing for Child Pornography' (2010) 84 ALJ 384 at 385 (references omitted):
'The damage done to the children so abused can be, and undoubtedly often is, profound. In addition to the physical and psychological harm from the abuse itself, the New South Wales Sentencing Council has explained that harm may also result from the knowledge, as they grow older, that the material may remain in circulation, heightening the shame and distress associated with being exploited when young and vulnerable.'"
The importance of general deterrence and denunciation has also been emphasised in child pornography offences: Minehan at [94]; Porte at [70]; R v Booth [2009] NSWCCA 89 ("Booth") at [41].
Whilst there is some overlap of the principles involved in child pornography cases, offences contrary to ss 272.8(2) and 272.9(2) of the Code are not confined to the possession or dissemination of recorded material involving the sexual exploitation of children. This category of offending against children involves the actual participation of an offender in the sexual abuse of a child, even though the part played by the offender does not involve the direct physical sexual abuse of that child.
The offences of causing a child to engage in sexual intercourse or sexual activity contrary to ss 272.8(2) and 272.9(2) of the Code have not been considered by an intermediate appellate court. However, in Rivo v The Queen [2012] VSCA 117 ("Rivo"), the Victorian Court of Appeal dealt with s 272.14(1) of the Code, which is an offence of engaging in conduct to procure children under the age of 16 to engage in sexual activity outside Australia.
In Rivo, the "rolled-up" count contrary to s 272.14(1) involved the offender seeking to procure children under the age of 16 to engage in sexual activity outside Australia on 12 different dates. In online chat sessions the offender engaged with a number of different procurers in the Philippines and asked the procurers to obtain young children to engage in sex shows. The offender's involvement was as a "film director" (at [11]) giving instructions to the procurers and children in the sex shows. In dismissing the offender's appeal against the manifest excess of the sentence imposed, the Court (Neave and Osborn JJA and King AJA) found at [43] that relevant considerations were:
1. the objective seriousness of the sexual activity involved, having regard to the age and the number of children, and the evidence as to the nature of the conduct in which they were involved;
2. the increasing depravity in the conduct of the offending;
3. the direct involvement and dominant role of the offender in controlling the content of the overseas activities;
4. the very significant need for general deterrence; and
5. the need for specific deterrence, having regard to the diagnosis of paedophilia, the course of the offending, and the continuation of the offending after a first search was conducted by investigating police.
However, citing the principle in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 at p 389 (Gibbs CJ) ("De Simoni"), the Court observed at [35] that the offender was "not to be sentenced as if he perpetrated sexual offences directly upon the children".
The Court was referred to Director of Public Prosecutions v Brett Le Gassick [2014] VCC 1288 ("Le Gassick"), a sentencing judgment in the County Court of Victoria, but no significant matters of principle may be derived from that case.
Another case brought to the Court's attention was from the United Kingdom, which has offences in the Sexual Offences Act 2003 (UK) that are similar to the offences under the Code. In Regina v Charnley (2011) 1 Cr. App. R. (S.) 58, the Court of Criminal Appeal dealt with a Crown appeal against the inadequacy of a sentence imposed upon an offender who had procured the sexual abuse, including the penetration, of young vulnerable children by an adult he paid in the Philippines. Lord Justice Moses relevantly said at [19]-[20]:
"19 …The fact that they were [on] the other side of the world, in countries such as the Philippines, but that modern communications enabled the offender to procure their sexual abuse is no mitigation. It is indeed an aggravation. No doubt the offender and others like him thought he could far more easily escape detection by committing these offences in that way by payment through a credit card than if he had dared to be present and commit these offences within this country. What a public outcry there would have been if the children had come from the United Kingdom and a sentence had been passed of no more than five years' imprisonment.
20 … It is plain that such offenders, obsessed with the opportunity so easily on payment to obtain their own sexual gratification at the cost of terrible abuse of these children, need to be deterred. These children, coming as they do from impoverished circumstances, need protection. They need protection against the ever more sophisticated methods by which offenders obtain sexual gratification."
Having regard to these authorities and to the particular nature of the offending, the following factors may be of relevance in assessing the objective seriousness of offences against ss 272.8(2) and 272.9(2) of the Code:
1. the age of the child or children, and the number of children involved in the sexual offence;
2. the gravity of the sexual offence;
3. the extent of any cruelty or physical harm occasioned to the child or children involved in the sexual offence;
4. the vulnerability of the child or children to sexual exploitation, including the country in which the child resides and the child's impoverished circumstances;
5. the role of the offender in the production of the sexual offence, including in the selection of the child or children, the nature and duration of the sexual offence, the number of adults directly involved in the commission of the sexual offence, and whether the offender provided any payment or other material benefit to a third party for the sexual offence;
6. the level of control exercised by the offender, including by communications and directions with persons overseas, before or whilst the sexual offence occurs;
7. the degree of planning, organisation or sophistication employed by the offender in causing the child or children to engage in the sexual offence;
8. whether the sexual offence was viewed live by the offender by technological means such as real-time video links, webcams, chat and video rooms, or live streaming;
9. whether the sexual offence was also viewed live by persons other than the offender, including whether there was transmission by live streaming to those other persons by the offender;
10. whether the sexual offence was recorded by the offender;
11. whether the sexual offence was recorded by the offender with the intention of disseminating the recording to other persons;
12. whether any payment or other material benefit was intended to be received or was received by the offender for causing the child or children to engage in the sexual offence, or for live streaming the sexual offence or disseminating any recording of the sexual offence;
13. whether the offender acted alone or in a collaborative network of like-minded persons; and
14. any other matter under s 16A of the Crimes Act 1914 (Cth) bearing upon the objective seriousness of the offence.
As was said in Rivo, an offender is not to be sentenced as if he physically perpetrated the sexual offence directly upon the child. However, I agree with Basten JA (see [24]-[25] above) that it should not necessarily be inferred that an offence against s 272.8 of the Code involves lesser moral culpability than a sexual assault physically committed by an offender.
The need for general deterrence is of high importance. In Booth, Simpson J explained at [41] that child pornography could not come into existence without exploitation and abuse of children, who often come from disadvantaged countries that lack resources to provide adequate child protection mechanisms. The same may be said for offences against ss 272.8(2) and 272.9(2) of the Code.
An additional consideration that heightens the need for general deterrence is the difficulty in detecting this class of offending. The Internet provides anonymity for an offender in Australia who can commit the offence via a third party located overseas. The offender can conduct and watch in real-time the sexual abuse of children in a foreign country. Unlike child pornography cases, the offence can be committed without a recording being made of the sexual offence.
Evidence of efforts made towards rehabilitation is important in the exercise of the sentencing discretion: s 16A(2) of the Crimes Act 1914 (Cth). However, it should not be given undue focus at the expense of other legitimate and important sentencing considerations including general deterrence and denunciation: Booth at [47]. As in child pornography cases, less weight is given to prior good character as a mitigating factor.
The respondent submitted that there were clear justifications for a degree of concurrency, contending that there were close temporal connections between some of the offending and a commonality between all sequences due to the respondent's diagnosis of a paraphilic disorder. It was submitted that eight months could not be said to be a substantially protracted period of time for this kind of offending, given that it is so easily accessible through the internet, and that it contrasted with the longer periods of similar offending in Rivo and Le Gassick.
The respondent submitted that the considerations that inform the overall sentence structure are multiple and complex, and that the narrow comparisons of the Crown tended to diminish the importance of assessing how the counts interacted globally as a whole.
And further at [23]:
"23 It is impossible to conclude that Pt 1B left no room for the application of, or was inconsistent with, s 52 of the Sentencing Act. Such a conclusion depends upon a misunderstanding of its history, an exaggeration of its comprehensiveness, and the attribution to the legislature of a policy which cannot be discerned in the legislation."
The Commonwealth Director submitted that based on the decision in Putland, aggregate sentences are available in New South Wales for offenders prosecuted for two or more Commonwealth offences on indictment, by application of s 53A of the Crimes (Sentencing Procedure) Act. The respondent did not take issue with the Commonwealth Director's submission.
The Commonwealth Director's submission is soundly based. There does not appear to be any good reason for concluding that s 53A does not apply to Commonwealth offences dealt with on indictment in New South Wales.
In any event, it was open to the judge to impose separate sentences for each of the offences. Whether sentences were imposed concurrently or consecutively were matters for his Honour's discretionary judgment guided by the principle of totality: R v MMK [2006] NSWCCA 272; 164 A Crim R 481 at [13]. Such a discretionary judgment is only reviewable by this Court in accordance with the principles of House at p 505.
In Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, McHugh, Hayne and Callinan JJ said at [45]:
"45 … A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality."
His Honour's consideration of the questions of cumulation or concurrence and totality included the following (ROS 69-70):
"The balance of the offences have been subject to the same approach and consideration of the principles of totality as I have applied to all the sentences. I have regarded it as appropriate to impose concurrency in relation to sentences for conduct committed on particular occasions, and in some instances for conduct otherwise committed at a relevantly proximate time to other events. In other words, a degree of concurrence for offences committed on one occasion, and in some instances for offences committed close to that occasion.
In order to comply with apposite appellate principles relating to totality, as within Pearce v The Queen (1998) 194 CLR 610, each individual offence within a group of offences has been assessed according to the assessment of the objective criminality in that particular offence and in its setting, including where it has been part of interrelated conduct.
Apart from concurrence applied to sentences arising from closely related conduct and in some cases between closely related events, I have assessed the overall and extended objective criminality over time as requiring a reflective measure of accumulation amongst the constituent sentences. That will produce an overall and reflective sentence proportionate to the overall and very serious body of objective criminality in all the offending, taking into account matters individual to particular matters, statutory guideposts constituted by the relevant maximum penalties, a proper assessment of the objective seriousness in terms of the purposes of sentencing, in relation to sequence 1 affected by 3A of the Crimes (Sentencing Procedure) Act, and by the nature and circumstances of the offending as required in consideration pursuant to s 16A(2)(a) of the Commonwealth Crimes Act 1914." [Emphasis added.]
The difficulty with his Honour's approach in imposing concurrent sentences "in relation to conduct committed on particular occasions, and in some instances for conduct otherwise committed at a relevantly proximate time" may be seen in the concurrent sentences imposed for sequences 12 to 20. Although the offences were committed between 1 August 2012 and 1 October 2012, the sexual assaults that the respondent instructed and paid for were separate acts of criminality committed upon different children.
There were two children who were victims of the sexual assaults on 24 August 2012 (sequences 14 and 15), three children on 10 September 2012 (sequences 16, 17, and 18) and two children on 1 October 2012 (sequences 19 and 20).
The sexual offending in sequence 12, which took place on 11 August 2012, was, as the judge found, towards the very high end of objective seriousness and was perpetrated not only by Satingin but also by an adult female. The sexual assault upon a boy, who was pre-pubescent and one of the youngest of the children was recorded in 8 videos, totalling approximately 30 minutes in duration.
The sexual offending in sequence 13, which took place on 17 August 2012, was, as the judge found, towards the high end of objective seriousness and perpetrated by Satingin upon a boy, who was pre-pubescent and one of the youngest of the children. The sexual assault was recorded in 5 videos, totalling approximately 20 minutes in duration.
When applying the principle of totality, the question to be posed is not one of temporal proximity but whether the sentence for one offence can comprehend and reflect the criminality of the other offence. If it cannot, there should be at least partial accumulation otherwise there is a risk that the total sentence will fail to reflect the total criminality of the offences: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41; R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38 ("R v XX"). In R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267, the Court (McClellan CJ at CL, Hulme and Hislop JJ) when discussing the totality principle said at [44]−[45]:
"44 Implementation of the principle of totality is perhaps the most common circumstance where concurrency of sentences is justified. However it is important that that principle be properly understood and applied. Perhaps the leading statement of it is an extract from D A Thomas, Principles of Sentencing endorsed in Mill v R (1988) 166 CLR at 59 at 63:-
'The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences to review the aggregate sentence and consider whether the aggregate sentence is 'just and appropriate'.'
45 Two points may be made. Firstly, the principle is expressed in terms of coming back from the result of a simple aggregation. Secondly, if each individual sentence is appropriate for the criminality of the offence to which it relates, prima facie additional criminality requires an increase in sentence. Obviously the totality principle imposes limits to that last proposition but those limits will rarely if ever go so far as to justify wholly concurrent sentences for all of a series of offences such as those here. Subject to those limits, in general, sentences significantly cumulative should be imposed for separate serious offences of which those here are all examples."
Furthermore, it does not follow that because a number of offences arise out of the same incident or course of criminal conduct, that concurrent sentences will be appropriate to meet the totality of the conduct involved: Vaovasa v R [2007] NSWCCA 253; (2007) 174 A Crim R 116 ("Vaovasa") at [15]. Where there are separate victims, the closeness and proximity of the offending will often not be determinative factors: R v XX at [52]; Vaovasa at [16].
The sentence imposed for sequence 12 could not comprehend and adequately reflect the criminality of the offending in sequence 13. Furthermore, the concurrent sentences imposed in sequences 14 to 20 failed to acknowledge the separate harm done to each victim.
It is unnecessary to consider in more detail the structure of all of the sentences. The total period of accumulation between all of the offences against the Code is 21 months, which reflects the large measure of concurrence between the sentences. The overall sentence, in my view, fails to adequately acknowledge the separate harm done to each child upon the respondent's instructions. The totality of the sentence is not just and appropriate. His Honour's discretion miscarried.
I would uphold this ground of the appeal. Specific error having been identified, this Court is obliged to exercise the sentencing discretion afresh unless the Court declines to intervene.
I briefly add that in the third ground of appeal, the Commonwealth Director contends that the overall effective sentence and resulting non-parole period was manifestly inadequate. For the reasons that I upheld Ground 1, it follows that the Commonwealth Director's complaint of manifest inadequacy has been established, as the overall effective sentence and resulting non-parole period is manifestly inadequate.
Although not strictly necessary as specific error has been found, I will consider Ground 2 before venturing further. The questions raised in this ground will assist the Court in sentencing the respondent if the Crown appeal is not dismissed in the exercise of the residual discretion.
His Honour's findings as to objective seriousness were not challenged by either party in this Court.
The respondent's submission that the assessment of the undiscounted starting point of a sentence is not confined to the objective gravity of the offence but must embrace all relevant matters, including an offender's subjective case is undoubtedly correct. However, the manifest inadequacy of the sentence imposed for sequence 12 is evident when considering all of the matters relevant to fixing a sentence "of a severity appropriate in all the circumstances of the offence": s 16A(1) of the Crimes Act 1914.
In committing this offence, the respondent was a live spectator and active participant via real-time video link of the gross sexual abuse of a pre-pubescent Filipino boy. The vile and heinous conduct that the respondent paid for and instructed included the child being forced to have penile-vaginal intercourse with an adult female on three occasions and being forced to perform oral sex on her and Satingin.
The undiscounted starting point of his Honour's sentence for this offence is 10 years 6 months imprisonment which is 52.5 per cent of the maximum penalty of 20 years imprisonment.
Although the respondent's subjective case required a reduction in sentence and the principle of totality was to be borne in mind, these considerations were not such to justify an undiscounted starting point of 10 years 6 months. The sentence falls well short of adequately reflecting the gravity of the offence, and the need for general deterrence and denunciation of the respondent's conduct.
In the circumstances of this offence, I am satisfied that such a starting point is manifestly inadequate.
The same observation may be made about the undiscounted starting points of 8 years 6 months for sequences 21 and 22, which the judge found to be "towards the high end of objective seriousness". The undiscounted starting points of his Honour's sentences are 42.5 per cent of the maximum penalty of 20 years imprisonment. The gross sexual abuse of two pre-pubescent boys that the respondent paid for, instructed and watched, included the rough and forceful anal intercourse of one of the children by Santingin.
My conclusions are not founded upon the view that if I had been the sentencing judge, greater sentences would have been imposed in the exercise of my sentencing discretion: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15].
I do not propose to consider all of the sentences imposed by the judge as the Court will be required to exercise the sentencing discretion afresh unless the residual discretion is exercised.
The Commonwealth Director has established Ground 2 of the appeal.
The respondent submitted that the Court should exercise its residual discretion and decline to intervene. The respondent argued that offences under ss 272.8(2) and 282.9(2) of the Code are relatively new and consistent with the sentences in Rivo and Le Gassick, and the respondent's sentence was not particularly lenient. The respondent's contention was that guidance could be achieved in a decision upholding the appeal and identifying relevant considerations and future tariffs without the need for intervention.
Another submission made by the respondent was that the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill ("the Bill") would make fundamental changes to the offences against the Code and, as a consequence, the decision of this Court would provide limited guidance to sentencing judges.
It appears that the principal changes proposed in the Bill include an increase in the maximum penalty for an offence contrary to s 272.9 of the Code from 15 years to 18 years imprisonment and the imposition of mandatory minimum sentences for offences contrary to ss 272.8 and 272.9 of the Code of 5 years. The Court's attention was also drawn to Sch 10, which provides as an additional requirement for Commonwealth child sex offences that a term of imprisonment for such offences must not be served partly cumulatively, or concurrently, with an uncompleted term of imprisonment for another Commonwealth or State child sex offence.
I am not persuaded that the Bill, if passed into law, would diminish in any way the guidance that might be provided to sentencing judges by the Court's decision in this appeal. An inference that may be readily drawn from the proposed legislation is that the legislators do not consider that current sentencing practices appropriately reflect the severity of Commonwealth child sex offences.
In my opinion, the Commonwealth Director has demonstrated that the discretion to re-sentence should be exercised by this Court. The proper administration of justice does not support the exercise of the residual discretion. The Commonwealth Director has not contributed to the manifest inadequacy of the sentence nor delayed the appeal. Guidance to sentencing judges that may be provided by this decision includes the need to protect vulnerable children in impoverished countries from sexual abuse procured by offenders in Australia. Public confidence in the justice system would not be served by allowing a manifestly inadequate sentence to stand.
However, in Ryan McHugh J said at [40]:
"40 Whether or not paedophilia is an 'underlying condition' - and it appears not to be a psychiatric illness - it is by no means clear that a paedophile should be punished 'less severely than would be appropriate for a series of wilful and completely unconnected offences'. If two men commit similar offences against children - one because he was a paedophile and the other for sexual gratification - I doubt that the general public would see any difference in the two cases. Indeed, the public view - which cannot be disregarded if courts are to maintain the confidence of the community - may be that the paedophile should get the heavier sentence of the two because he is more likely to reoffend. There is certainly judicial authority for that view. In Channon v The Queen, Brennan J, then a member of the Federal Court, said:
'An abnormality may reduce the moral culpability of the offender and the deliberation which attended his criminal conduct; yet it may mark him as a more intractable subject for reform than one who is not so affected, or even as one who is so likely to offend again that he should be removed from society for a lengthy or indeterminate period.'"
His Honour then referred to Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 473, at [41]:
"41 In Veen v R [No 2], a majority of this Court referred to the fact that an offender may have a condition that makes him or her a danger to society because of the propensity to reoffend. But the majority noted that, although the condition may be said to diminish his or her 'moral culpability for a particular crime', it is a double-edged sword. The protection of society is a material factor in fixing an appropriate sentence. As a result, a person suffering from that condition may not only be disentitled to receive any reduction in sentence because of that condition but the need to protect society may require a longer sentence than would otherwise be the case."
Although the respondent's paraphilic disorder may be seen to provide an explanation for his offending and reduce to some extent his moral culpability, in my view, it heightens the need for specific deterrence.
I accept that the respondent is motivated to participate in counselling upon release. His desire to ensure that his offending is not repeated has been further demonstrated by enrolment in the CUBIT and CORE programmes. As to his prospects of rehabilitation, much will depend on the benefit he derives from these programmes and his ability to overcome his abnormal sexual interest in children: s 16A(2)(n) of the Crimes Act 1914 (Cth).
I give modest weight to the respondent's unchallenged evidence of increased stress, sleeplessness and anxiety which he suffers as a result of the Crown appeal: Bui v Director of Public Prosecutions (2012) 244 CLR 638; [2012] HCA 1.
As the judge found, less weight is to be given to the evidence of the respondent's prior good character and lack of prior criminal history.
In sentencing the respondent, chief weight is to be given to general deterrence and denunciation of the respondent's conduct.
In accordance with s 53A of the Crimes (Sentencing Procedure) Act, I will impose an aggregate sentence of imprisonment with respect to all of the offences against the Code. As sequence 1 was not the subject of the appeal, no change has been made to the sentence passed by the judge for that offence.
In assessing the indicative sentences for the offences against the Code, I have fixed an appropriate sentence for each offence and considered questions of cumulation or concurrence and totality. The following Table discloses the sentences that would have been imposed but for the aggregate sentence after the 30 per cent discount has been applied: s 53A(2)(b) of the Crimes (Sentencing Procedure Act):
Sequence Number Starting point Indicative sentence after 30% discount
(round figures)
3 6 years 4 years 2 months
4 6 years 4 years 2 months
5 5 years 8 months 4 years
6 5 years 8 months 4 years
7 10 years 7 years
8 10 years 7 years
9 6 years 4 years 2 months
10 6 years 4 years 2 months
11 6 years 4 years 2 months
12 14 years 9 years 9 months
13 10 years 7 years
14 6 years 4 years 2 months
15 6 years 4 years 2 months
16 7 years 6 months 5 years 2 months
17 7 years 6 months 5 years 2 months
18 7 years 6 months 5 years 2 months
19 6 years 4 years 2 months
20 4 years 3 months 3 years
21 10 years 7 years
22 10 years 7 years
23 6 years 4 years 2 months
24 6 years 4 years 2 months
See, eg, Vaitos (1981) 4 A Crim R 238 at 257 (Young CJ), 276 (Murphy J) and 299 (O'Bryan J).
Einfeld v Regina [2010] NSWCCA 87; 200 A Crim R 1 at [180]-[183].
Ashworth at 290.
Bagaric and Alexander at 159; see also Ashworth at 289.
Bogdanovich v The Queen [2011] VSCA 388 at [63] (Ashley and Weinberg JJA), quoting Kirby J in Postiglione at 341.