Court of Appeal (Vic)|2013-07-25|Before: Osborn J, Nettle JA

Edwards v The Queen [2013] VSCA 188 (25 July 2013)

The Queen v Edwards (Unreported, County Court of Victoria, Judge Pullen, 27 March 2013)

CRIMINAL LAW - Leave to appeal against sentence - Use carriage service to transmit indecent communication to a person believed to be under 16 - Using carriage service to access child pornography - Use carriage service to make available child pornography - Possess child pornography - Total effective sentence of 17 months' imprisonment - Non-parole period of five months purportedly fixed - Applicant to be released after serving five months' imprisonment on a recognisance release order in the sum of $1,000 on the condition that he be of good behaviour for a period of three years - Not open to fix a non-parole period in respect of a sentence of less than 12 months' imprisonment - principles - Sentence manifestly excessive - Serious sexual offender status - Leave granted - Appeal allowed - Total effective sentence of nine months' imprisonment imposed - Applicant to be released on a recognisance release order in the sum of $500 on the condition that he be of good behaviour for a period of 12 months.

1 I invite Justice Osborn to deliver the first judgment.

2 On 22 March 2013 the applicant pleaded guilty in the County Court to the following charges:

(a) one charge of using a carriage service to transmit indecent communication to a person believed to be under 16 years of age contrary to s 474.27A(1) of the Criminal Code 1995 (Cth) ('the Code') (charge one);

(b) one charge of using a carriage service to access child pornography contrary to s 474.19 of the Code (charge two);

(c) one charge of using a carriage service to make available child pornography contrary to s 474.19 of the Code (charge three);

(d) one charge of having possession of child pornography contrary to s 70(1) of the Crimes Act 1958 (Vic) (charge four).

3 The maximum penalty for the first offence is seven years' imprisonment; for the second and third offences 15 years' imprisonment; and for the fourth offence five years' imprisonment.

4 Following a plea hearing, her Honour Judge Pullen sentenced the applicant on 27 March 2013 as follows:

(a) charge 1 - seven months' imprisonment commencing 27 January 2014;

(b) charge 2 - 10 months' imprisonment commencing 27 June 2013;

(d) charge 4 - nine months' imprisonment commencing 27 March 2013.

5 Her Honour further purported to fix a non-parole period of five months in respect of the State sentence and to direct that the applicant be released, after serving five months' imprisonment, on a Recognisance Release Order in the sum of $1,000 to be of good behaviour for a period of three years.

6 It was her Honour's intention to cumulate four months of the sentence upon charges 2 and 3 upon the State sentence and a further four months of the sentence upon charge 1 upon the sentence for charges 2 and 3.

7 Her Honour's sentencing conclusions were flawed in the following respects.

8 First, it was not open to provide for a non-parole period in respect of a sentence of less than 12 months' imprisonment.[1] Her Honour recognised this was so subsequently to pronouncing sentence, but regarded herself as functus officio and hence unable to correct the error. The effect of the mistake is that the applicant must currently remain in custody for a period of nine, not five, months with respect to the sentence imposed on the State offence.

9 Secondly, the Commonwealth Director of Public Prosecutions ('DPP') concedes that the applicant was entitled to some sensible moderation of his sentence to reflect Verdins[2] principles having regard to evidence of the applicant's intellectual disability. For the reasons I shall explain, I accept that her Honour did not properly do so.

10 Thirdly, in turn the DPP concedes the sentence imposed was manifestly excessive.[3]

11 Fourthly, her Honour was not strictly correct to say that: '... you are sentenced as a serious sexual offender as I understand it in relation to charges 3 and 4 and as such ss 6D and 6E apply'.[4] It was only in respect of charge 4 that this was true.[5]

12 It follows that leave to appeal should be granted and that the sentences imposed below must be set aside and the applicant resentenced.

13 The applicant submits that, upon resentencing, the Court should not impose a sentence of immediate imprisonment. Conversely, the DPP submits that a sentence of immediate imprisonment is justified, albeit moderated from that imposed by the sentencing judge.

14 The applicant was initially traced by covert police as a user of Gigatribe for pornographic purposes. A covert agent accessed files provided by the applicant which contained child pornography.

15 The applicant's house was then searched and his laptop computer and a series of discs were seized.

16 The basis of charge 1 is that between 29 September 2010 and 2 October 2010 the applicant engaged in online chats with a person who stated on several occasions that he was a 13 year old. The chats were crudely sexually explicit.

17 Charges 2 and 3 relate to the use of Gigatribe to download child pornography files and to share five folders of child pornographic material with other Gigatribe users.

18 Charge 4 related to the pornography found in the applicant's possession, comprising 266 images and 165 videos. There were 246 level 1 images and videos which depicted erotic posing of children with no sexual activity; 81 level 2 images depicting sexual activity between children or solo masturbation by a child; three level 3 images and videos depicting non-penetrative sexual activity between adults and children; and 114 level 4 images and videos which depicted penetrative sexual activity between adults and children. There were no level 5 images or videos (depicting sadism, bestiality, humiliation or torture).

19 The sentencing judge recorded that she had viewed a sample of the pornographic material[6] and expressed the opinion that it involved exploitation of the young and defenceless. She further concluded that there was a real potential for the children involved in the making of the images and videos to be adversely affected for the rest of their lives. This conclusion has not been put in issue.

20 As the DPP submits, both the State and Commonwealth legislatures have made clear that offending of the type in issue is to be regarded as serious. In 2000, the State offence of possessing pornographic material was made indictable and the maximum penalty increased from two to five years' imprisonment. In 2010, the maximum penalty for two of the Commonwealth offences was increased from 10 to 15 years' imprisonment.

21 In this case, the applicant's conduct involved four related but different and distinct types of offending. The applicant not only accessed child pornography for his own use but also made five folders of such material available to others. He possessed child pornography by downloading material onto a laptop computer and computer discs and he used a carriage service to transmit an indecent communication to a person he believed was a 13 year old child. By reason of cl 1(df)(ii) of sch 1 of the Sentencing Act (relating to s 474.19(1) of the Code) and cl 1(a)(xvii) (relating to s 70(1) of the Crimes Act 1958), charges 2, 3 and 4 relate to serious sexual offences as defined by the Sentencing Act. In turn, the applicant falls to be sentenced in respect of charge 4 as a serious sexual offender within the meaning of s 6B(2) of the Sentencing Act. In consequence, the Court must regard protection of the community from the offender as the primary purpose for which a sentence is imposed in respect of that offence and such sentence must prima facie be served cumulatively.[7]

22 Having regard to the above matters, I accept that despite the factors personal to the applicant to which I shall shortly come, some sentence of immediate imprisonment must be imposed. This is essentially because of, first, the level of depravity of some of the pornographic material;[8] secondly, the quantity of material; thirdly, the discrete elements of culpability of the offending; and, fourthly, the need for both general deterrence[9] and specific deterrence. The consideration of general deterrence must be of some weight because the criminalisation of the activities in issue in respect of charges 2, 3 and 4 is intended to constrain and diminish the market for child pornography and in turn the demand for victims. In cases such as the present, a sentence of immediate imprisonment will ordinarily be warranted.[10]

23 Having said this, there are a series of matters personal to the applicant which lead me to the conclusion that a materially lesser sentence is warranted than that imposed at first instance.

24 The applicant is a 43 year old with no prior convictions.

25 He struggled at school and, after working in a series of unskilled positions, has contracted chronic hepatitis as a result of a needle stick injury suffered when he was working as a cleaner at the Bloodbank. In turn, he has been on a disability pension since 1996.

26 He is mildly intellectually disabled with an IQ within the extremely low range. Formal testing by his treating psychologist places him at the first percentile, meaning that he performed as well or better than one per cent of participants his age.

27 The applicant's transition to early adult life has also been marked by traumatic personal experiences. He formed a relationship with a woman in his late teens but their first child was stillborn. Following the birth of his second child his partner separated from him but he remained in close contact with his son, of whom he was very proud. When his son was 16 he committed suicide taking an overdose of anti-epileptic medication. Not surprisingly, this had profound emotional consequences for the applicant.

28 At the time of offending, by reason of his failed work and personal history, the applicant was socially isolated and, in the view of Dr Danny Sullivan, suffering from a longstanding mood disorder - probably dysthymia. Dr Sullivan notes:

His low mood may reflect Mr Edwards's dissatisfaction with his life and the constraints of his intellectual disability upon his capacity to improve his situation. At times he has experienced supervening grief or difficulties in adjustment. He has not previously been treated with medication or psychological therapies.

29 Dr Sullivan further expresses the view that there is no clear evidence of paedophilia on the applicant's part. In this respect he also notes the applicant provides an alternative explanation for his initial engagement with material relating to teenage boys; namely, in effect, a search for a son.

30 Dr Sullivan also is of the view that the applicant's intellectual disability can be regarded as partly causative of the offending.

31 In my view, when taken in combination, the following matters significantly mitigate the sentence that might otherwise be appropriate.

• He has demonstrated remorse by his pleas of guilty and by seeking and participating in treatment from Mr Broughton, the psychologist.

• Although not a young offender, the combination of his intellectual disability, the traumatic nature of his transition through early adult life, Dr Sullivan's opinion and the applicant's willingness to accept treatment mean that there must be a real hope that he remains capable of rehabilitative change.

• The applicant's intellectual disability can be seen as partly responsible for his offending. In particular, it is likely that his judgment and his capacity for consequential thinking was impaired as a result of this disability.

• The applicant's social isolation and depressed mood at the time of offending were products of a particularly unfortunate work-related disability and tragic personal life.

• The combination of these factors in the context of his intellectual disability can fairly be seen as reducing his moral culpability to some extent and of rendering him a vehicle of more limited utility than usual for the purposes of general deterrence.

• The applicant's intellectual disability and dysthymia mean that prison life is likely to be more burdensome for him than the average offender.

(a) on charge 1 - four months' imprisonment commencing 27 August 2013;

(b) on charge 2 - six months' imprisonment commencing 27 May 2013;

(d) on charge 4 - four months' imprisonment commencing 27 March 2013.

33 The effect of the cumulation implicit in the commencement dates I have stipulated is a total effective sentence of nine months' imprisonment. I would direct

that, on 27 July 2013, the applicant be released on a Recognisance Release Order pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) upon giving security by recognisance of $500 to be of good behaviour for 12 months.

34 Insofar as it is necessary, I would direct pursuant to s 6E of the Sentencing Act that the sentence with respect to charge 4 not be served cumulatively upon the sentences imposed in respect of charges 1, 2 and 3.

35 I would declare pursuant to s 6F of the Sentencing Act that the applicant was sentenced with respect to charge 4 as a serious offender and direct that such fact be entered in the records of the Court.

36 I would declare pursuant to s 6AAA of the Sentencing Act that but for the applicant's pleas of guilty I would have imposed a total effective sentence of two years' imprisonment and fixed a non-parole period of one year and direct that this statement be entered in the records of the Court.

37 I would declare pursuant to s 18(4) of the Sentencing Act and s 16E(2) of the Crimes Act 1914 (Cth) that the applicant has served 125 days by way of pre-sentence detention.

38 By reason of cls 18 and 28A of the sch 2 of the Sex Offenders Registration Act 2004, the convictions with respect to charges 2, 3 and 4 mean that the applicant is a registrable offender pursuant to that Act. The period of reporting pursuant to s 34 of that Act is life.

[2] R v Verdins [2007] VSCA 102; (2007) 16 VR 269, [32].

[5] R v Edwards (Unreported, County Court of Victoria, Judge Pullen, 27 March 2013) ('Reasons') [104].

[8] DPP v Ison [2010] VSCA 286.

[10] DPP v Smith [2010] VSCA 215, [23].

Offenders Registration Act 2004

Edwards v The Queen [2013] VSCA 188

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Judgment (68 paragraphs)

Edwards v The Queen [2013] VSCA 188 (25 July 2013)

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