Dixon v R

Decision: 1. Extend time to file the Notice of Appeal until 13 June 2024.
2. Grant leave to appeal.
3. Dismiss the appeal.

Catchwords: CRIME – Appeals – Appeal against sentence – Application for leave to appeal – Offences of sexual intercourse with children outside Australia and possessing child abuse material – Whether the sentencing process miscarried – Whether the sentencing judge erred in her consideration of the age of the victims – Whether the sentencing judge mistook the statutory age limit of an offence provision – Whether the sentencing judge erred in incorrectly stating an offence provision – No point of principle

Legislation Cited: Criminal Code Act 1995 (Cth), ss 11.1, 272.8, 272.20, 273.5, 473.1, 474.22, 474.22A
Crimes Act 1914 (Cth), s 16A

Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194
DH v R [2019] NSWCCA 128
Hurkmans v R [2024] NSWCCA 126
Kentwell v the Queen (2014) 252 CLR 60; [2014] HCA 37
Minehan v R (2010) 201 A Crim R 24; [2010] NSWCCA 140
R v Delzotto (2022) 298 A Crim A 483; [2022] NSWCCA 117
R v Hutchinson [2018] NSWCCA 152
Weber v R [2020] NSWCCA 103
Wu v R [2016] NSWCCA 96
Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
ZZ v R [2019] NSWCCA 286

Category: Principal judgment

Parties: Collen Teoxon Dixon (Applicant)
Rex (Respondent)

Representation: Counsel:
D Mulligan (Applicant)
A Chhabra / J Fennel (Respondent)
Solicitors:
Criminal Defence Lawyers Australia (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2021/193413

Publication restriction: Nil

JUDGMENT

1. DAVIES J: I agree with Sweeney J.

2. CHEN J: I agree with Sweeney J.

3. SWEENEY J: Collen Teoxon Dixon, the applicant, seeks leave to appeal against the aggregate sentence imposed upon him by Judge Noman SC in the District Court on 21 April 2023.

4. He requires an extension of time, his solicitors having filed a Notice of Appeal almost 2 months after the expiration of his Notice of Intention to Appeal. His solicitor explained that the delay was in part due to the applicant’s previous solicitors having received advice that there was no merit in an appeal. The Crown does not oppose an extension of time.

5. The applicant was sentenced for 27 offences to which he had pleaded guilty in the Local Court. The offences were:

6. one offence of possessing child abuse material (Sequence 1). That is an offence contrary to s 474.22A(1) of the Criminal Code Act 1995 (Cth) (“the Code”) with a maximum penalty of 15 years imprisonment;

7. nine offences of sexual intercourse with a child outside Australia, contrary to s 272.8(1) of the Code with a maximum penalty at the relevant time of 20 years imprisonment (Sequences 17, 21, 24, 28, 32, 47, 50, 61 and 65);

8. one offence of attempting to engage in sexual intercourse with a child outside Australia, contrary to ss 11.1(1) and 272.8(1) of the Code, with a maximum penalty of 20 years imprisonment (Sequence 56);

9. one offence of preparing to engage in sexual intercourse with a child outside Australia, contrary to s 272.20 of the Code with a maximum penalty of 10 years imprisonment (Sequence 44); and

10. fifteen offences of producing child pornography material outside Australia, contrary to the then s 273.5(1) of the Code with a maximum penalty of 15 years imprisonment (Sequences 19, 23, 26, 31, 35, 49, 51, 52, 53, 57, 58, 63, 67, 71 and 72). These offences related to filming the sexual acts with children the subject of the sexual intercourse offences.

11. The aggregate sentence imposed was 16 years imprisonment with a non-parole period of 11 years, commencing on 6 July 2021. The non-parole period will expire on 5 July 2032.

12. It is not necessary at this point to refer to the sentences indicated for the 27 individual offences.

13. The applicant seeks to rely on the following grounds of appeal:

Ground 1: The sentencing judge erred with respect to the s 272.8(1) Criminal Code (Cth) offences in that:

(a) the sentencing judge mistook the facts upon which the applicant was to be sentenced for count 61. (b) the sentencing judge mistook the statutory age limit of the offence provision.

Ground 2**:** The sentencing judge erred in incorrectly stating the offence provision for Sequence 1.

9. The Crown conceded that Grounds 1(a) and (b) were made out but submitted they were errors without consequence and that no lesser sentence is warranted in law. The Crown did not concede ground two.

10. It is necessary to consider Grounds 1(a) and (b) in order to decide whether to accept the Crown’s concession.

Ground 1 (a) – asserted error in respect of the offence in Sequence 61

11. All of the offences against s 272.8(1) of the C**ode involved sexual offending against children in the Philippines. The offence provision is in these terms:

272.8 Sexual intercourse with child outside Australia

Engaging in sexual intercourse with child

(1) A person commits an offence if:

(a) the person engages in sexual intercourse with another person (the child); and

(b) the child is under 16; and

(c) the sexual intercourse is engaged in outside Australia.

12. The applicant accepted through his counsel that his plea of guilty to the offence in Sequence 61 admitted all the essential ingredients of the offence, including that the child was under 16.

13. For the related offences of producing child pornography material outside Australia, contrary to s 273.5(1), “child” was defined in s 473.1 of the Code as a person under 18 years of age.

14. The agreed facts for the Sequence 61 offence and its related offence in Sequence 63 of filming the sexual intercourse the subject of Sequence 61 were relevantly as follows:

“On an unknown date between about 2 July 2015 and 22 October 2016 the Crown alleges that the accused engaged in sexual intercourse with ‘JCG’ (Sequence 61) and recorded that interaction…

A review of the accused’s MEGA account located two videos in a folder titled ‘JCG’. The Officer in Charge reviewed each video and determined that the pubescent child was aged between 15 and 17 years of age.”

15. In written submissions in the sentence proceedings the Crown stated that a relevant feature of the offences in Sequences 61 and 63 was that the child was between 15 and 17 years of age. The applicant’s counsel in the sentence proceedings stated in written submissions “The OIC observed [the] age of the child is between 15 – 17 years of age. Close to 18 years of age.” Neither legal representative addressed that factor in oral submissions.

16. In her Remarks on Sentence her Honour referred to the s 272.8(1) offences as “engage in sexual intercourse with child outside Australia” with no reference to the under 16 age limit.

17. About Sequences 61 and 63 her Honour said:

“‘JCG’ was aged between 15 and 17. The offender made two category two videos. A 7 minute and 15 second video recorded the victim fellate the offender. A 9 minute and 59 second video recorded the victim fellating the offender.

This conduct supports a sole offence each of sexual intercourse and production. This is a less serious offence.”

18. The indicative sentence for the offence in Sequence 61 was 4 years and 6 months imprisonment, which included a 25% discount for the plea of guilty. The maximum penalty was 20 years imprisonment.

19. Her Honour said about the objective seriousness of all of the Philippines sexual intercourse offences:

“There are a number of factors that inform the seriousness of these offences. Each offence involves a child victim… Further, each victim… was likely vulnerable due to socio-economic circumstances and not just because of age. They were strangers to the offender and although involved for financial gain this is not a negotiation of equals. The offending evidences child exploitation. The victims were treated as sexual commodities. I am cognisant of the age of the victims as against the maximum for the offence provision. It is of some, but limited difference whether a victim was 13 to 15 opposed to 14 to 16. I appreciate the age difference to the offender who was aged around 30.

…

In considering the sexual offences, I have considered the nature of the act and its duration where it can be established. I have considered whether there are a multiplicity of acts. I have also taken into account whether there were visual signs or words expressing pain. Of significance I have taken into account those occasions when the offender persisted despite clear indications that the victim was in pain.”

20. The applicant submitted that it was not open to her Honour to find that the victim of the offence in Sequence 61 was between 15 and 17; her Honour was required to find that the victim JCG was under but close to the age of 16. Counsel acknowledged that her Honour was not assisted on that factual issue by the legal representatives before her.

21. Counsel submitted that that factual error vitiated her Honour’s sentencing discretion because if the victim was over the 16 year age limit for the offence there was no applicable offence under the Code, and that the factual error called into doubt an element of the offence.

22. Counsel submitted that her Honour mistook the age limit for both the sexual intercourse and production of child pornography offences as 18. Counsel accepted that the age of the victim and how close it was to the mistaken maximum age was a matter her Honour took into account in assessing the objective seriousness of the offence in Sequence 61, and submitted that the objective seriousness of the offence had to be assessed in view of the maximum age being 16 not 18.

23. The Crown acknowledged that an essential element of an offence against s 272.8(1) was that the relevant child was under 16 and submitted that by his plea of guilty to the offence in Sequence 61 the applicant admitted all of the elements of the offence, including that one. The Crown submitted that by referring to the fact that the relevant child was older than 15 her Honour mistook the facts and took into account an irrelevant consideration. The Crown accepted that such an error had the capacity to affect the exercise of the sentencing discretion and, in that sense, is an error which vitiates the exercise of the sentencing discretion. The age of the child was a factor relevant to the assessment of the objective seriousness of the offence by her Honour.

24. By his plea of guilty the applicant admitted the elements of the offence, including the age of the child within the offence provision, that is, under 16. I accept that her Honour mistook the fact of the age of the victim JCG in the offence in Sequence 61. That was a fact her Honour took into account in assessing the objective seriousness of that offence. Her Honour was not assisted by the legal representatives before her on that fact.

25. Ground 1(a) is made out.

Ground 1(b) – asserted error that the sentencing judge mistook the statutory age limit of the offence in s 272.8(1) of the Code

26. Following on from his submissions in support of Ground 1(a), the applicant submitted that her Honour mistook the statutory age limit in respect of all the offences against s 272.8(1) of the C**ode and that that affected her Honour’s assessment of the objective seriousness of those offences. They were the offences in Sequences 17, 21, 24, 28, 32, 47, 50 and 65. There was also one offence of attempting such an offence in Sequence 56.

27. The applicant relied on essentially the same submissions as he made in support of Ground 1(a), including that her Honour never expressly stated in her Remarks on Sentence that the age range for those offences was under 16.

28. Counsel relied on DH v R [2019] NSWCCA 128 in which the sentencing judge assessed the objective seriousness of sexual offences against an 8 year old child by reference to the incorrect maximum age of 16 years rather than the correct maximum age of 10 years. The Court of Criminal Appeal concluded that the judge’s assessment of the objective seriousness of some offences was affected by the misunderstanding of the age range in the offence provision, and that that was a material error in the sentencing process.

29. The Crown submitted that it was open to this Court to find that Judge Noman SC did mistake the statutory age limit in respect of the sexual intercourse offences, and that such an error had the capacity to affect her Honour’s assessment of the objective seriousness of those offences. However, the Crown submitted that contrary to the applicant’s submission that the age of the victim of each such offence was dispositive or overwhelming in the assessment of the objective seriousness of the offence, her Honour took into account other factors in that assessment, being the sexual act, the duration of the offending, the power imbalance between the applicant and victim, and that each of the sexual offences caused pain and visible pain to the victim.

30. In respect of the offences the subject of Ground 1(b), her Honour made the following factual findings and assessments of objective seriousness:

31. Sequence 17: – the victim “Eddy” was over 14 and under 16. The intercourse consisted of the offender anally penetrating the child, who asked the offender to wait while holding his lower back, and then cried. The child lay on the floor, holding his buttocks and in pain. The offender directed him back to the bed and the offender engaged in another act of anal penetration while the child was in pain. The offender then fellated the victim.

Her Honour noted the type of sexual intercourse, the resultant pain and that despite the pain caused, the offender continued with a further penetrative act. Her Honour assessed the offence as “relatively serious”.

The sentence indicated was 6 years imprisonment. That included a 25% discount for the guilty plea, as did all sentences indicated for individual offences. The maximum penalty for all the sexual intercourse offences was 20 years imprisonment. The sentence indicated for the related offence of producing child pornography (Sequence 19) by filming the sexual intercourse was 3 years and 9 months imprisonment, against a maximum penalty of 15 years imprisonment.

1. Sequence 21: – the victim “James” was over 14 and under 16. The offender fellated the victim, then tried to insert his penis into the victim’s anus. The victim indicated he was in pain and the offender told him to change position, obtained lubricant, then engaged in anal penetration.

Her Honour noted the type of sexual intercourse and the resultant pain and assessed the offence as “relatively serious”.

The sentence indicated for this offence was 6 years imprisonment, and for the related offence of producing child pornography (Sequence 23) 3 years and 9 months imprisonment.

1. Sequence 24: – the victim “Paul” was over 13 and under 15. The offender anally penetrated the victim, who was breathing heavily and grimaced. The offender suggested trying another way. The victim appeared to sit in pain and then curled into a foetal position. The offender pulled the victim’s buttocks apart and filmed his anus. He pulled the child back onto the bed and aggressively anally penetrated him while the victim breathed heavily and said “ouch” multiple times. The offender continued to penetrate him.

Her Honour noted the type of sexual intercourse and resultant pain and the repeated acts of anal penetration. Her Honour assessed this offence as “relatively serious”.

The sentence indicated for this offence was 6 years imprisonment, and for the related offence of producing child pornography (Sequence 26) 3 years and 9 months imprisonment.

1. Sequence 28: – the victim “Macky” was over 14 and under 16. The offender fellated the victim. The offender offered something to the victim to “fuck” him and the victim indicated it would hurt too much. The offender attempted to anally penetrate the victim. He indicated it hurt too much and asked the offender to stop. The victim asked to leave given the pain. The offender rolled the victim over and anally penetrated him. He continued to indicate he was in pain. The victim left.

Her Honour noted the type of attempted sexual intercourse, the resultant pain, and despite the pain caused that the offender continued with a further penetrative act. Her Honour assessed this offence as “relatively serious”.

The sentence indicated for this offence was 6 years imprisonment, and for the related offence of producing child pornography (Sequence 31) 3 years and 9 months imprisonment.

1. Sequence 32: – the victim “Jamil” was under 16. The offender fellated the victim before he licked and kissed his anus. There were two acts of anal penetration. During one such act the victim was observed to be in pain.

Her Honour took into account the types of sexual intercourse and the resultant pain from one act of anal penetration. Her Honour assessed this offence as “relatively serious”.

The sentence indicated for this offence was 6 years imprisonment, and for the related offence of producing child pornography (Sequence 35) 3 years and 9 months imprisonment.

1. Sequence 47: – this was the second occasion the offender met with the victim Paul. Paul was over 13 and under 15. The offender anally penetrated the victim who was observed to be in pain. There was a further act of anal penetration.

Her Honour noted the type of sexual intercourse and the resultant pain, and assessed the offence as “relatively serious”.

The sentence indicated for this offence was 6 years imprisonment, and for the related offence of producing child pornography (Sequence 49) 3 years and 9 months imprisonment.

1. Sequence 50: – the unknown victim of this offence was aged between 14 and 16. The offender anally penetrated the victim.

Her Honour noted the type of sexual intercourse, that it was of short duration, and that there were no indicia of pain. Her Honour assessed this offence as “less serious but still a serious offence”.

The sentence indicated for this offence was 4 years and 6 months imprisonment, and for the related offence of producing child pornography (Sequence 51) 3 years imprisonment.

1. Sequence 56: – the victim “Vhie” was aged between 13 and 15. The offender applied lubricant and attempted a number of times to anally penetrate the victim. The victim rolled into a foetal position. Although the victim displayed distress the offender continued to attempt penetration. The victim struggled and the offender told him to stop resisting.

Her Honour took into account that the victim was struggling and resisting, and that the attempt was as close to the commission of an offence as feasible. Her Honour assessed this offence as “relatively serious”.

The sentence indicated for this offence was 4 years and 6 months imprisonment, and for the related offence of producing child pornography (Sequence 57) 3 years and 9 months imprisonment.

1. Sequence 65: – the victim “Lorenz” was aged between 10 and 12 initially and then between 14 and 16. The offence involved conduct when the child was aged 10 to 12. There were two occasions of the offender anally penetrating the victim.

Her Honour said “Given the age of the victim, this is one of the more serious offences.” Her Honour took into account there were various sexual acts and assessed the offence as “serious”. Her Honour noted that the offender told police he believed the victim to be 13 and later said he was between 12 and 13. The offender said he met the child at two different hotels and engaged in sexual acts. He said he paid a “pimp” and the child.

The sentence indicated for this offence was 6 years and 9 months imprisonment, and for the related offence of producing child pornography (Sequence 67) 4 years and 3 months imprisonment.

31. It can be accepted that if her Honour thought the maximum age for the offence was 18, then the age of each victim compared to 18 would mean the offence was assessed as more serious than if the age was compared to 16. All of the victims of these offences were under 16. Her Honour did not say anywhere in her Remarks on Sentence that the maximum age for the intercourse offences was 16. That lack of express reference and the error in relation to the age of the victim of the offence in Sequence 61 leads to the inference that her Honour made the asserted error.

32. Therefore, this Court must resentence the applicant in accordance with Kentwell v the Queen (2014) 252 CLR 60; [2014] HCA 37.

33. However, first, it is necessary to consider Ground 2 which concerns a different offence.

Ground 2 – whether the sentencing judge erred in incorrectly stating the offence provision for Sequence 1

34. The offence in Sequence 1 was charged in the Court Attendance Notice as an offence against s 474.22A(1) of the Code, in terms that on or about 6 July 2021 at Chippendale [the applicant] possessed or controlled material, being child abuse material in the form of data held in a computer or contained in a data storage device and used a carriage service to obtain or access the material.

35. The offence provision is in the following terms:

474.22A Possessing or controlling child abuse material obtained or accessed using a carriage service

(1) A person commits an offence if:

(a) the person has possession or control of material; and

(b) the material is in the form of data held in a computer or contained in a data storage device; and

(c) the person used a carriage service to obtain or access the material; and

(d) the material is child abuse material.

36. An offence against that provision in July 2021 had a maximum penalty of 15 years imprisonment.

37. The coversheet of the Crown tender bundle described the offence in Sequence 1 as “Possess/control child abuse material obtained or accessed using a carriage service” and specified the offence provision as s 474.22(1) of the Code, that is, omitting the “A”.

38. In July 2021 s 474.22(1) of the Code created an offence entitled “Using a carriage service for child abuse material” which was committed by a person accessing child abuse material, causing such to be transmitted to him, soliciting such, or transmitting, making available, publishing, distributing, advertising or promoting such material, using a carriage service, with a maximum penalty of 15 years imprisonment.

39. The misstatement of the offence provision for the offence of possessing child abuse material on the Crown tender bundle coversheet was repeated in the Crown’s first set of written submissions and at the beginning of her Honour’s Remarks on Sentence, where her Honour stated the offence as: “Sequence 1: Possess child abuse material obtained or accessed using a carriage service. This offence is contrary to s 474.22(1) of the Criminal Code and there is a maximum penalty of 15 years imprisonment.”

40. The applicant submitted that her Honour’s misstatement of the offence provision caused the sentencing exercise to miscarry and that nowhere in the Remarks on Sentence did her Honour expressly refer to the correct offence provision. Counsel for the applicant accepted that throughout the Remarks on Sentence her Honour referred to the offence in Sequence 1 as “possession” and that the offences against ss 474.22(1) and 474.22A(1) had the same maximum penalty.

41. The Crown submitted that an offence against s 474.22(1) does not involve possession of child abuse material, but different conduct, and that the sentencing judge sentenced the offender for possessing child abuse material. The Crown referred this Court to all of the references to “possession” of child abuse material in the Crown’s written submissions, the submissions by counsel for the offender, the statement of agreed facts, and throughout her Honour’s Remarks on Sentence, when stating the agreed facts of the offence, the assessment of objective seriousness and the sentence indicated for the offence in Sequence 1.

42. The Crown submitted that Judge Noman SC’s failure to refer to s 474.22A(1) was technically an error but it was not an error which vitiated the exercise of the judge’s sentencing discretion. Rather, the Crown submitted, it was a slip or inadvertent misstatement.

43. The applicant accepts that offences against ss 474.22(1) and 474.22A(1) had at the relevant time the same maximum penalty and that her Honour correctly stated the maximum penalty applicable to the offence of possessing child abuse material.

44. Throughout her Honour’s Remarks on Sentence her Honour referred to the applicant’s possession of child abuse material. Her Honour sometimes referred to the applicant accessing the material he possessed but that is an element of the offence of possessing child abuse material accessed using a carriage service. Other than referring to accessing material, which is an element of the possession offence, her Honour did not refer to any conduct which is the subject of the offence in s 474.22(1). It is quite clear that her Honour was under no misapprehension about the conduct for which she was sentencing the applicant. It is quite clear her Honour was aware and sentenced the applicant for the offence of possessing child abuse material. Her Honour did in one place in her Remarks on Sentence, when introducing the offence, as set out above, state the incorrect offence provision by omitting the “A”, having been misled about that by the Crown Prosecutor before her. Her Honour nowhere misstated the offence for which she sentenced the applicant. I am not persuaded that the misstatement of the offence provision affected the exercise of the sentencing judge’s discretion in her sentencing of the applicant.

45. Therefore Ground 2 is not made out.

Resentencing

46. Although they were not pleaded as grounds of appeal, counsel for the applicant submitted there were several matters about which this Court, in exercising the sentencing discretion afresh, would make different findings than Judge Noman SC did, though he did not contend that her Honour made errors about them. They were:

47. the sentence indicated for the offence in Sequence 1 was excessive for the criminality of the offence;

48. her Honour’s error about the prescribed maximum age in the sexual intercourse offences would lead to reduced findings of the objective seriousness of those offences because the victims were closer to the maximum age than her Honour appreciated;

49. the sentencing judge did not make clear whether she accepted the submissions on behalf of the applicant that his background enlivened the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 and made no finding that it reduced his moral culpability; and

50. this Court should recognise the applicant’s assistance to authorities with a discrete percentage discount.

The applicant’s contention that the sentence indicated for the offence in Sequence 1 was excessive

47. The facts of the offence in Sequence 1 related to child abuse material found on four devices and a ‘MEGA’ storage account found in a search of the applicant’s home in July 2021 (being 11 videos and 6 images) and the material he produced by filming his sexual conduct with young boys in the Philippines.

48. Her Honour mistakenly sentenced the applicant only on the basis of the former, referring to 11 videos and 4 images. That was an error which favoured the applicant, although there was significant overlap between the applicant’s production of that material and his maintaining possession of it.

49. The applicant contends that the sentence indicated for the offence in Sequence 1 was excessive for the objective criminality of the offence, having regard to the “relatively low” number of videos and images, that the material was possessed for personal use, and that the offending was relatively unsophisticated, the material being held in devices and storage accounts held by the applicant. Counsel accepted that the number of items was not the only factor in assessing the objective seriousness of the offence, but emphasised that factor.

50. The sentence indicated was 2 years and 3 months imprisonment, which incorporated a 25% discount for the applicant’s plea of guilty. The maximum penalty was 15 years imprisonment.

51. The Crown submitted that the offence in Sequence 1 was of considerable seriousness because there were actual children involved in the creation of the material, the applicant was involved in the creation of the material he produced in the Philippines, and the content of the material was serious, involving penetrative sexual intercourse by the applicant and other adults with children ranging from an infant to teenaged, disadvantaged boys.

52. In assessing the seriousness of the offence in Sequence 1 her Honour said:

“During this search the child abuse material supporting the possess offence was located on three mobile phones, a hard drive and a MEGA account. The Mega cloud storage was subscribed in a false name. There were multiple files. This material included both images and videos and was classified as falling into categories 1 and 2 under the Interpol categorisation. Although the facts refer to a large number of images or videos and samples, it was clarified during the hearing that only 11 images and 4 videos were relied upon. Slightly more of the number are category 1. I have taken into account the nature of what is captured and the length of videos. This is a relatively small number to possess. There are varying dates images were last modified with some as recent as April 2021. The oldest was last accessed in 2010. The offence refers to the sole date of possession but the facts disclose that the offender possessed the images for differing periods of time. This cannot be ignored as it informs the circumstances of his possession. He accessed the material he possessed at different times over many years. There is also no suggestion that the offender committed the offence as an aberration. It is accepted he is a paedophile. There are evidently different victims. The ages range from babies to pubescent and the sexual acts from touching, to fellatio and anal intercourse. The most serious would be the anal penetration by an adult penis of the baby. Some involve more than one victim.

The relevant factors in assessing the seriousness of the offence include:

(1) the images were accessed independently;

(2) the offender possessed the material for personal use and not for further dissemination, or profit;

(3) the nature and content of the images, to the extent it is described, including the age of the victims;

(4) the number of images and that there are real victims;

(5) the age differential between the offender and the victim and the knowledge of that age;

(6) the limited degree of sophistication.

In contemplating the offence for sentence, I have considered these matters. The offence is to be viewed as occurring not in isolation.

This is a moderately serious example of the offence provision.”

53. Her Honour identified and took into account the matters bearing on the assessment of objective seriousness of such an offence, as stated in Minehan v R (2010) 201 A Crim R 24; [2010] NSWCCA 140 and R v Hutchinson [2018] NSWCCA 152.

54. The applicant’s submission placed too much emphasis on the number of images and videos. The very serious nature of the acts perpetrated on real children of young and very young ages had to be given meaningful consideration.

55. I am not persuaded that, against a maximum penalty for this offence of 15 years imprisonment, the sentence indicated was excessive for this offence by this offender.

56. In resentencing the applicant, the videos he produced in the Philippines and possessed in his home will have to be taken into account as was intended by his plea of guilty and agreement with the facts statement. There is overlap between the production offences and the possession of the produced videos, which has to be taken into account in resentencing, but the applicant’s keeping of those videos for his own personal purposes involves different criminality.

The assessment of objective seriousness of the sexual intercourse offences

57. I have set out above her Honour’s assessment of the objective seriousness of each of the sexual intercourse offences and the factors her Honour took into account in those assessments.

58. The applicant submitted that if the Court was satisfied that her Honour mistook the statutory age limit for the sexual intercourse offences (Ground 1(b)), the age of each victim relative to the maximum age was a significant factor in the assessment of objective seriousness, and in resentencing, this Court should take into account that all of the victims were closer to the maximum age. Counsel submitted that this should lead to lesser indicative sentences than those indicated by Judge Noman SC, which he characterised as “stern”, and to a lesser aggregate sentence.

59. The Crown submitted that in the assessment of the objective seriousness of the sexual intercourse offences, the age of the victim was only one factor and it could not overwhelm or be dispositive of that assessment. The Crown referred to the other factors to be considered in that assessment, being that the offences involved planning, overseas travel, a local facilitator to source vulnerable and exploited child victims whose vulnerability included their poverty, that most of the offences involved anal penetration of the victims, several of whom indicated that it caused them pain, and that in some offences the applicant persisted with anal penetration of the victim after the victim indicated pain.

60. I accept that if her Honour considered the age of each victim relative to a maximum age of 18 rather than relative to the maximum age of 16 that would have been factored into the assessment of objective seriousness of each such offence. However, most of the estimated ages of the victims were in the upper part of the age range. None were of a very young age relative to the 16 year age limit.

61. Having considered all of the relevant factors, including the age or estimated age of the victim, the nature of the intercourse, whether the victim experienced pain, and whether the applicant persisted with anal penetration despite the victim’s expression of pain, I do not assess any of the offences as less serious than the assessments by Judge Noman SC.

Treatment of the applicant’s disadvantaged background

62. Judge Noman SC took into account the applicant’s following subjective circumstances. He was 36 at the time of sentence and 30 – 33 at the times of the offending. He was a person with no prior convictions, the weight of which was diminished to some extent by his admitted long-term access to child abuse material. He was genuinely remorseful and had some, but not full, insight into the harm caused by his offending.

63. He grew up in New Zealand, having a solitary childhood on a farm with his parents and brother. He realised his attraction to males as a young child. He has no school friends or ongoing friendships. He is tertiary educated although his employment in his profession was unsuccessful and he obtained unskilled employment.

64. Her Honour noted:

“Lisa Zipparo, neuropsychologist, documented the description of an isolated upbringing deprived of nurturing parents. He was sexually abused at 7 or 8 by a stranger and then on a further occasion by school peers. He self-harmed at that time and thereafter experienced depression and anxiety. This disadvantage is relevant to sentence. It is also relevant to his mental health.” (emphasis added).

65. Her Honour noted that Ms Zipparo referred to the applicant reporting extremely severe symptoms of depression, anxiety and stress, and symptoms consistent with diagnoses of Autism Spectrum Disorder (“ASD”) and Post-Traumatic Stress Disorder (“PTSD”). Ms Zipparo said ASD may be correlated with paedophilia. Ms Zipparo noted the significant adjustment difficulties and increased stress and anxiety from being in custody.

66. Her Honour considered a report by Dr Furst, psychiatrist, and noted that the applicant had told Dr Furst of his use of child abuse material commencing at 14; with his attraction being mainly to boys aged 10 – 12. The applicant told Dr Furst that as an adult his main attraction was to boys around the age of 14. Her Honour noted that this did not align with the applicant’s communications in the planning offence that his interest was in children aged from 12. Her Honour said the applicant’s offending supported that he had an attraction to boys younger than 14 and on occasion acted on it.

67. Judge Noman SC noted that Dr Furst diagnosed the applicant with having paedophilic disorder, ASD and borderline personality traits. He said the applicant’s PTSD was in remission although it informed the development of borderline personality traits. Dr Furst said the applicant’s attraction to children was a direct result of his paedophilic disorder. He assessed him as being in the above average risk of reoffending.

68. Her Honour said:

“I accept that there is a causal connection between the offender’s mental health conditions and the offending. He well knew what he was doing and planned his offending. His offending is explicable based on his co-related autism and paedophilia. His borderline personality traits, acquired from the childhood offending perpetrated upon him, directly informs the commission of the offences. He succumbed and acted on his ‘undesirable responses and impulses’. This serves to not insignificantly reduce moral culpability and to ameliorate sentence.

The offender has experienced a disadvantaged childhood and has been accessing child abuse material for almost 20 years. He will require considerable treatment to address his criminogenic factors. I am assisted by Dr Furst’s report. I determine that he has guarded prospects of rehabilitation and an above average risk of reoffending or of relapse. He has long standing paedophilic tendencies with a diagnosis of paedophilic interests.”

69. Her Honour found that personal deterrence had a continuing role to play, that accepting that his paedophilic tendencies and childhood experiences informed his offending did not lessen the importance of general deterrence, and that his conditions in custody may be more onerous because of his mental health issues.

70. In the written submissions on behalf of the offender on sentence, counsel submitted, in reliance on Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 (“De La Rosa”), that the offender’s mental health disorders, being paedophilic disorder, ASD, childhood PTSD in remission, and borderline personality traits reduced his moral culpability in relation to his offending.

71. In written submissions before Judge Noman SC counsel for the offender said “The principles of Bugmy may apply to this offender.” Counsel had tendered extracts from the Bugmy Bar Book and submitted that there was evidence before the court of the offender’s background of low socio-economic status, growing up in poverty, being socially isolated, and being emotionally and otherwise neglected by his parents. Counsel referred to the trauma of childhood sexual abuse and submitted it is “a substantial risk factor for the development of subsequent mental health problems”.

72. In supplementary written submissions counsel for the offender referred again to his childhood social isolation and disadvantage, sexual abuse and to his mental health disorders.

73. In oral submissions before her Honour counsel referred to her written submissions. She referred to the issue of “reduced moral culpability” and submitted “the Court could find… that his mental condition contributed directly or indirectly to the commission of the offences.” Counsel referred to the Bugmy Bar Book summaries she had provided and said the most important things were the offender’s low socio-economic status, his social exclusion and his childhood sexual abuse. In commenting on the expert reports counsel highlighted the offender’s social disadvantage and childhood deprivation, and highlighted Dr Furst’s opinion that the offender’s childhood sexual abuse had compounded his ASD and had given rise to PTSD which had resolved into borderline personality traits. Counsel submitted there was a causal link between the offender’s mental health issues and his offending.

74. In written submissions on sentence, the Crown had submitted that the offender’s upbringing did not amount to social deprivation and that it was unclear if the two events of sexual abuse experienced by the offender constituted a history of abuse. The Crown submitted that the Court would have difficulty making any findings of causality that would decrease his moral culpability from his sexual abuse history, though the latter could be given full consideration in the offender’s subjective case.

75. Counsel for the applicant submitted that when her Honour said that the offender had “experienced a disadvantaged childhood,” it was not clear whether her Honour was making a finding that the principles in Bugmy did or did not apply. Counsel submitted that if the sentencing judge did find the principles in Bugmy applied then her Honour made no corresponding finding whether and to what degree the finding reduced the applicant’s moral culpability. The applicant submitted that the principles in Bugmy do arise in his case, that this Court would find that this reduces his moral culpability for the offences to some degree, and even if the Court finds that the principles in Bugmy are not enlivened, this Court should articulate the ways in which the offender’s background mitigates the appropriate penalty by reference to its impact on general deterrence and moral culpability, for appropriate transparency in sentencing.

76. Counsel submitted that her Honour’s lack of express finding about the applicant’s background was not asserted to be erroneous but that “this Court would grapple in a more comprehensive fashion with the competing submissions made at first instance and accordingly consider the degree to which the background affects moral culpability, and potentially other purposes of sentence.” Counsel submitted that although he did not assert that her Honour’s findings were erroneous, they had “some degree of deficiency to them.” He submitted there was a distinction between “findings that were erroneous and findings that this Court, in the exercise of best practice in terms of sentencing, would adopt”.

77. Counsel was critical of her Honour dealing with the applicant’s childhood sexual abuse through “the prism of [his] mental health as opposed to potentially further findings as to a reduction in moral culpability applying the principles in Bugmy”. Counsel submitted that the sentencing judge’s engagement with the principles in De La Rosa and Bugmy were not how either party put those issues.

78. The Crown submitted that her Honour’s Remarks, which I have set out above at paragraph [68] made clear that her Honour had regard to both the principles from Bugmy and De La Rosa, which in this case were closely intertwined, in the sense that the applicant’s childhood trauma informed his mental health at the time of his offending.

79. In Hurkmans v R [2024] NSWCCA 126 N Adams J said at [61]-[62]:

“…it is not uncommon for offenders to seek a reduction in moral culpability on both De La Rosa principles and Bugmy principles. Although in some cases the relevant factors may be so entwined that there will be no error in failing to make separate findings (see Craft v R [2021] NSWCCA 131 at [41]-[50]), in most cases a finding that, for example, Bugmy factors warrant a finding of reduced moral culpability, does not absolve the sentencing judge from addressing the De La Rosa factors even though both factors potentially lead to a reduction in moral culpability.

Similarly, the fact that the applicant submitted that there were two bases upon which moral culpability could be reduced in the present matter does not mean that one of them could be ignored if the other was found to be present. To so state does not mean that the sentencing judge was required to further reduce the finding of moral culpability based on the second submission, only that her Honour was required to address that second submission.”

80. There was an interrelationship between the applicant’s mental health issues and disadvantaged childhood. His social isolation and exclusion were related to his ASD, and his childhood abuse and neglect led to his PTSD and borderline personality traits. Her Honour took into account the applicant’s case as it was presented to her. She found that his childhood disadvantage was relevant to his mental health and that “His borderline personality traits acquired from the childhood offending perpetrated upon him, directly inform[ed] the commission of the offences” and “serves to not insignificantly reduce moral culpability and to ameliorate sentence”.

81. Her Honour dealt with those interrelated issues appropriately and I would not deal with them differently. Her Honour also took into account the applicant’s disadvantaged childhood and paedophilic tendencies in respect of his prospects of rehabilitation, and in the need for general deterrence in sentencing him, and took into account that his mental health difficulties would make his conditions in custody more onerous. I will deal with them on the same basis.

Discount for assistance

82. The applicant submitted that in resentencing him this Court should specify a percentage discount for his assistance to authorities, although it was not an error for the sentencing judge to not have done so. Counsel submitted the assistance should be recognised as having “relatively high” value.

83. The assistance, described in the facts statement, was that when police searched his home the applicant gave them passwords to his devices so they could access them and their contents. Further, in an interview with police he made some admissions about his possession of child pornography and sexual conduct with some child victims and he identified some child victims in videos he had made, including a child relative of his. In written and oral submissions on sentence counsel for the offender submitted that there should be a total discount of 30% for his pleas of guilty and assistance. Counsel relied on the decision of R v Delzotto (2022) 298 A Crim A 483; [2022] NSWCCA 117. That decision dealt with a different issue, which was minimum penalties for second offences against s 474.22A of the Criminal Code*,* though the Court did specify a 5% discount for law enforcement cooperation.

84. In written submissions on sentence the Crown submitted that in his interview with police the offender made frank admissions to the offences before the court and provided detail when confronted with specific images and videos from his electronic devices and accounts. The Crown accepted that the police would not have been able to identify the offender’s relative as the subject of one offence in the absence of the offender’s admission of that fact. The Crown placed weight on the availability of evidence in the devices to prove the charges laid. The Crown’s position was that there was no legislative requirement for the court to specify the discount provided for past cooperation.

85. In her Remarks on Sentence her Honour said:

“The offender provided access to encrypted files and passwords to facilitate investigators accessing his devices. There is no evidence as to whether access would have been possible without this cooperation. Importantly, there is no suggestion that the offender co-operated other than genuinely. This will be taken into account as part of his assistance to authorities.”

86. Later in the judgment her Honour said:

“The offender was interviewed by police. As previously stated he voluntarily provided access to passcode protected devices or encrypted files. He also volunteered his connection with victims on Facebook.”

87. Her Honour also said that the offender’s involvement with police supported his expressions of remorse. At the end of her judgment her Honour said:

“I have not overlooked the level of initial cooperation with investigators and have accounted for it to ameliorate sentence.”

88. Section 16A(2) of the Crimes Act 1914 (Cth) (“Crimes Act”) provides:

16A Matters to which court to have regard when passing sentence etc. – federal offences

…

(2) In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:

…

(h) the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences;

…

89. The provision was considered by Bellew J, with whom the other Justices agreed, in Weber v R [2020] NSWCCA 103. Bellew J said if a federal offender has cooperated with authorities, he is entitled by virtue of s 16A(2)(h) to have that factor taken into account on sentence; there is no fixed tariff to be applied: at [67]. In resentencing the applicant, his Honour applied a 5% discount to reflect the applicant’s cooperation with authorities.

90. In ZZ v R [2019] NSWCCA 286, the Court specified a percentage discount for the applicant’s cooperation with law enforcement agencies.

91. In Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 the Court, considering the requirement in s 16A(2)(g) that the Court take into account that a person has pleaded guilty to an offence, said at [280]:

“Section 16A(2)(g) neither requires nor prohibits the specification of a discount. However, once it is accepted that s 16A allows a sentencing judge to give a discount to the sentence which would otherwise be imposed, it seems to us desirable that, in the interests of transparency, such discounts be specified. However, there is no obligation on the sentencing judge to do so, and a failure to do so would not of itself amount to error.”

92. In Wu v R [2016] NSWCCA 96 the Court said there is no requirement to identify the level of discount for assistance by a discrete percentage: at [55].

93. I accept that courts have on some occasions, in the interests of transparency, specified a percentage discount for an offender’s past cooperation with law enforcement authorities. As counsel for the applicant acknowledged, Judge Noman SC was not required to do so and it was not an error for her Honour to not do so. It is clear that her Honour took into account the applicant’s cooperation with investigators to ameliorate his sentence and therefore expressly complied with the requirements of s 16A(2)(h) of the Crimes Act. I do not consider it necessary or appropriate in resentencing the applicant in this case to take a different approach than her Honour did at first instance.

Other resentencing considerations

94. Counsel for the applicant submitted that in resentencing the applicant the Court should allow sufficient time for him to undertake the rehabilitation programs recommended by Dr Furst, in compliance with s 16A(2AAA) of the Crimes Act.

95. I have had regard to the affidavit of the applicant sworn 29 January 2025, to be relied on in the resentencing exercise. The applicant has worked in custody; he has undertaken educational and rehabilitative courses. He has some physical health conditions which he says are not being treated in custody. He is on anti-anxiety medication for his mental health. Because his parents live in New Zealand he sees them only once or twice a year and has no other visitors.

96. I have taken into account the maximum penalties specified for each offence and the nature and circumstances of each offence. My assessment of the objective seriousness of each offence is not less than that assessed by Judge Noman SC. I have taken into account the applicant’s subjective circumstances, including his childhood experiences and his related mental health conditions, in relation to each of the purposes of sentencing. I have taken into account the applicant’s pleas of guilty, which warrant a 25% discount of each indicated sentence, and I have taken into account his cooperation with investigators as particularised above. In fixing the aggregate sentence I have taken into account the overlap between the sexual intercourse offences and the production of child pornography by filming those offences, and the overlap between the latter offences and the possession of those videos as part of the possession offence, which requires a deal of notional concurrency of the indicated sentences.

97. The indicative sentences and the aggregate sentence I have reached are not less than those indicated and imposed by Judge Noman SC. I would allow the applicant an extension of time to file his Notice of Appeal out of time, grant leave to appeal and dismiss the appeal.

Orders

98. I propose the following orders:

99. Extend time to file the Notice of Appeal until 13 June 2024.

100. Grant leave to appeal.

101. Dismiss the appeal.

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Amendments

09 April 2025

Coversheet - corrected representation.