Director of Public Prosecutions (Cth) v Beattie

[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)

M Bagaric and T Alexander, "Rehabilitating Totality in Sentencing: From Obscurity to Principle" (2013) 36 UNSWLJ 139

Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill

House of Representatives, Parliamentary Debates (Hansard), 4 February 2010 at 408-410

A Lovegrove, Sentencing the Multiple Offender: Judicial Practice and Legal Principle (Research and Public Policy Series No 59, Australian Institute of Criminology, 2004)

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)

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

Judgment

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

(a) Australian cases

1. 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.
2. 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.
3. 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.

(b) Overseas cases

1. 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.
2. 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.
3. 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.
4. 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."

The De Simoni principle

1. 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.
2. 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.

Principle of totality

1. 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."
2. 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."
3. 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.
4. 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.

Conclusions

1. 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.
2. 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.
3. 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.
4. WALTON J: I agree with Price J.
5. 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.

1. 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.
2. 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."
3. The Commonwealth Director does not challenge the appropriateness of the sentence for sequence 1.

Facts

1. A lengthy statement of agreed facts was tendered, which the judge recounted on sentence. An outline of the agreed facts is as follows:
2. 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 :)".
3. 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."
4. 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.
5. 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.

Sequence 1

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.
2. 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.

Sequences 3 and 4

1. 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.

Sequences 5 and 6

1. 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.
2. 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.

Sequences 7 and 8

1. 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.
2. 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.

Sequence 9

1. 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.
2. 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.

Sequences 10 and 11

1. 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.
2. 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.

Sequence 12

1. 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.
2. 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.

Sequence 13

1. 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.
2. 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.

Sequences 14 and 15

1. 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.
2. 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.

Sequences 16, 17, and 18

1. 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.
2. 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.

Sequences 19 and 20

1. 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.
2. 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.

Sequences 21 and 22

1. 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.
2. 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.

Sequences 23 and 24

1. 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.
2. 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.

The respondent's subjective case

1. 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.
2. 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.
3. 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.
4. 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.
5. 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".
6. 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.
7. 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.

Some findings by the judge

1. 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."
2. 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."
3. 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.
4. 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.

Sentencing principles for offences of causing a child to engage in sexual intercourse or in sexual activity

1. 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."
2. 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".
3. 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'."

Ground 1: The sentencing judge erred in his application of the totality principle.

Argument

1. 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.
2. 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.
3. 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".
4. 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.
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.
6. 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").
7. 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.

Consideration

1. 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.
2. 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. …"
3. 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."

Ground 2: The sentence imposed in respect of each of sequences 3-19 and 21-24 was manifestly inadequate.

Argument

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.

Consideration

1. 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].
2. 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].
3. 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.
4. 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.
5. 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].
6. 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".

The residual discretion

1. 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.
2. 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."
3. 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."
4. 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.
5. 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.

Additional material admitted on re-sentencing

1. 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.
2. 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.
3. 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.

Re-sentence

1. 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.
2. 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.
3. 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.
4. 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.
5. 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).
6. 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.
7. 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."

1. 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.
2. 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.
3. 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.

ADDENDUM

1. 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.

Endnotes

1. [2014] VCC 1288.
2. Le Gassick at [4].
3. Le Gassick at [9].
4. Le Gassick at [16].
5. Le Gassick at [38].
6. Le Gassick at [55]-[56].
7. [2012] VSCA 117 (Neave and Osborn JJA and King AJA).
8. Rivo at [11].
9. Rivo at [14].
10. Rivo at [43].
11. Rivo at [44].
12. [2014] EWCA Crim 2995 (Lloyd Jones LJ, Nicol and Lindblom JJ).
13. [2011] 1 Crim App R (S) 58; [2010] EWCA Crim 1996 (Moses LJ, Holman and Clarke JJ).
14. Charnley at [6].
15. Charnley at [22].
16. Charnley at [14], dealing with count 23.
17. Charnley at [21].
18. Charnley at [19].
19. R v Pitts [2016] NSCA 78.
20. Canadian Criminal Code, ss 465(1)(c) and 271(a).
21. (1981) 147 CLR 383 at 389; [1981] HCA 31.
22. Rivo at [35].
23. Crimes Act, s 61J.
24. (1988) 166 CLR 59; [1988] HCA 70.
25. (1982) 149 CLR 1; [1982] HCA 30.
26. Ryan at 21.
27. Ryan at 22-23.
28. Mill at 62.
29. Thomas D A, Principles of Sentencing (2nd ed, Heinemann, 1979), pp 56-57.
30. Mill at 63; see also Postiglione v The Queen (1997) 189 CLR 295 at 307-308; [1997] HCA 26.
31. [2010] SASC 146 at [6].
32. See, eg, M Bagaric and T Alexander, "Rehabilitating Totality in Sentencing: From Obscurity to Principle" (2013) 36 UNSWLJ 139 at 155-159.
33. See R v MAK at [33] below.
34. (1994) 72 A Crim R 301.
35. Clinch at 308.
36. [2006] NSWCCA 381; 167 A Crim R 159 (Spigelman CJ, Whealy and Howie JJ).
37. R v MAK at [16].
38. R v MAK at [17].
39. R v MAK at [18].
40. Cameron v R [2017] NSWCCA 229 at [96]-[97] (Hamill J).
41. 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).

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