Edwin v R [2014] ACTCA 47

[2014] ACTCA 47

Court of Appeal (ACT)|2014-10-27|Before: Murrell CJ, Walmsley and Robinson AJJ

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At a glance

Source facts

Court

Court of Appeal (ACT)

Decision date

2014-10-27

Before

Murrell CJ, Walmsley and Robinson AJJ

Catchwords

APPEAL – Appeal against sentence – whether sentence manifestly
excessive – whether failure to take good character
into account –
whether irrelevant matters taken into account – concurrency

Source

Original judgment source is linked above.

Catchwords

APPEAL – Appeal against sentence – whether sentence manifestlyexcessive – whether failure to take good characterinto account –whether irrelevant matters taken into account – concurrencyAPPEAL – Appeal against sentence – common nonparole periodimposed for both Territory and federal offencesAPPEAL – Appeal against sentence – misstatement of maximumpenalty – whether a material error

Judgment

Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Case Title: Edwin v The Queen

Citation: [2014] ACTCA 47

Hearing Date(s): 7 August 2014

Decision Date: 27 October 2014

Before: Murrell CJ, Walmsley and Robinson AJJ

Decision: Appeal allowed. Set aside the sentences imposed by the trial judge. The appellant is sentenced as per [92]-[95].

Category: Principal Judgment

Catchwords: APPEAL – Appeal against sentence – whether sentence manifestly excessive – whether failure to take good character into account – whether irrelevant matters taken into account – concurrency APPEAL – Appeal against sentence – common nonparole period imposed for both Territory and federal offences APPEAL – Appeal against sentence – misstatement of maximum penalty – whether a material error

Legislation Cited: Crimes (Sentencing) Act 2005 (ACT) ss 33, 34 Crimes Act 1900 (ACT) ss 61, 64, 65 Criminal Proceedings Legislation Amendment Act 2011 (ACT) s 6 Human Rights Act 2004 (ACT) s 25 Supreme Court Act 1933 (ACT) Crimes Act 1914 (Cth) ss 4F, 16A, 19, 19AJ Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 (Cth) Criminal Code 1995 (Cth) ss 474.17, 474.19, 474.27

On the hearing of the appeal it became clear that the sentencing process had miscarried. Two issues were identified that had not been made the subject of any ground of appeal.
The first of those issues concerned the failure to accommodate the separate and distinct sentencing regimes that applied to the commission of the Commonwealth offences on the one hand, and the commission of offences under the ACT statute on the other.
Each of these regimes has specific sentencing provisions. In the ACT it is the Crimes (Sentencing) Act 2005 (ACT). In the case of the Commonwealth, it is the Crimes Act 1914 (Cth). As was observed in R v Kearns [2003] NSWCCA 367 at [73]-[74], and followed in many subsequent cases, a sentencing judge must accommodate the two distinct regimes.
Contrary to this approach, the Appellant was sentenced by the trial judge on the basis that the ACT regime applied to all of the offences. The trial judge’s attention was not called to this fact when he apparently overlooked it. During the course of the appeal the Court, itself, drew attention to this fact and enquired whether any detriment had been caused by failing to apply the differing regimes to the different offences. Each party disclaimed any detriment. The matters which each of the regimes hold relevant to sentence in respect to any individual offence are not congruent, although, as would be expected, are very similar.
The oversight has had the further consequence that the sentences imposed by the trial judge are not authorised by the provisions of the Crimes Act 1914 (Cth) because a common nonparole period was specified globally for both Territory and Federal offences. This is in breach of s 19AJ of that Act. It will be necessary to return to this matter in greater detail below.
A further issue which may have arisen as a result of the trial judge’s failure to consider the different regimes was that the Appellant invoked, in aid of his appeal, the provisions of s 34 of the Crimes (Sentencing) Act 2005 (ACT) claiming that sentences had been impermissibly increased by application of some of the factors in that section. There is no analogue in the Crimes Act 1914 (Cth). Fortunately, for reasons set out below we find that this difficulty does not arise because there was no breach of the prohibition in s 34.
The sentences imposed on the Appellant need to be considered against the respective statutory maximum penalties. The trial judge clearly did this and set out in his remarks the penalty for each offence. Unfortunately, the trial judge misstated, in three instances, the maximum penalty in force at the time of the commission of the offences. This was the second issue. The respective legislatures had increased the penalties for those offences subsequent to their commission by the Appellant. In the absence of a specific transitional provision to the contrary, the penalty at the date of the commission of the criminal offence in question applies. See also Crimes Act 1914 (Cth) s 4F(1) and Human Rights Act 2004 (ACT) s 25(2). The Court’s attention was drawn to these misstatements only by the Crown’s supplementary submissions delivered after the hearing of the appeal. The Court does not know the origin of these errors.
The table above contains notations at Count 17 in trial 1, Count 3 in trial 2 and Count 4 in trial 2 calling attention to those errors. Section 65(1) of the Crimes Act 1900 (ACT) was amended by s 6 of the Criminal Proceedings Legislation Amendment Act 2011 (ACT) which took effect on 6 July 2011. Section 474.19(1) (a) (ii) and (iii) of the Criminal Code 1995 (Cth) was amended by the Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 (Cth) which took effect from 15 April 2010.
The significance of the errors can be gained by starting with a consideration of the joint judgment in Markarian v The Queen (2005) 228 CLR 357 (Markarian) at [30]-[31]:

In written submissions filed prior to the hearing of the appeal, the Appellant advanced a single ground of appeal: [The] sentence imposed was manifestly excessive. A number of specific matters were then identified which were said to be supportive of that assertion. These were the treatment of character, the use of evidence, the assessment of objective seriousness and accumulation.
At the outset of the hearing, the Appellant was given leave to amend his grounds of appeal to incorporate the “specific matters” referred to in the previous paragraph into freestanding grounds of appeal.
Two matters should be noted. The first is that to assert that a sentence is “manifestly excessive” is to simply state a conclusion. It is commonly invoked where no specific error in the reasoning process can be, or has been, articulated. The second is that the appeal concerned 17 sentences and not just one sentence, even if, as a matter of shorthand, the net impact of the 17 sentences was the Appellant’s focus of attention.
The Appellant’s primary attack was on the overall effect of the sentencing process which produced a result of 10 years and eight months’ imprisonment with a nonparole period of six years and six months. This was said to be manifestly excessive. The Appellant also identified three sentences of the 17 that were submitted to be outside the range of available sentences in the circumstances. These were those sentences imposed on Counts 4, 6 and 10, each of three years’ duration.
As noted at paragraph [12], the Appellant was sentenced under the Crimes (Sentencing) Act 2005 (ACT) only. Part 5.3 of that Act deals with concurrent and consecutive sentences. For present purposes, it is enough to note that that Part, unlike in some jurisdictions, imposes upon a judge a requirement to sentence for each individual offence before consideration of any accumulation or concurrency where there is more than one count. The same process is applicable to the Commonwealth offences pursuant to s 19 of the Crimes Act 1914 (Cth).
There was no ground of appeal relating to the unauthorised specification of a common nonparole period for both Territory and Federal offences. However, the matter having come to the Court’s attention it must be regularised. The formal recording of the orders of a superior court of record is no formality. (Burrell v The Queen (2008) 238 CLR 218). The correction of this particular state of affairs could and should be done upon the appeal as part of the appeal process (Achurch v The Queen (2014) 306 ALR 566 at [35]).
There was similarly no ground of appeal relating to the misstatements of the three maximum penalties. We, however, cannot overlook this in an appeal against sentence by an Appellant.

In order to appreciate the challenges made by the Appellant to the individual sentences and the aggregate sentence imposed by the trial judge, it is necessary to recount some of the factual background to the offending. It is convenient to take this factual background largely from the trial judge’s remarks on sentence. At the appeal, the Appellant’s counsel disclaimed any error by the trial judge as to the finding of primary facts. Rather, the challenge was to the evaluation of those primary facts as they impacted upon the relevant considerations under s 33 of the Crimes (Sentencing) Act 2005 (ACT) and s 16A Crimes Act 1914 (Cth).
The Appellant’s offending was brought to the attention of prosecutors when he began exchanging text messages of a personal nature with CR. CR was aged 11 at the time and had gone to stay at a friend’s house for a sleepover. The Appellant was aged 30 at this time. The exchange of text messages was noticed by CR’s friend, who reported this fact to her (that is the friend’s) parents. As a result of this report, CR’s phone messages were read by an adult and as a further result the police were notified. That led to police obtaining a search warrant for the residence linked to the Appellant where hard drives were examined, and a number of photographic and electronic items seized. The material obtained by the police formed the basis of the counts subsequently brought against the Appellant in his first and second trials.
The evidence before the trial judge showed that the Appellant was born in southern India and had a good education. He completed a university degree. At the time of sentencing he was 34 years old. He had no alcohol or drug issues. Nor did he suffer from mental illness.
The trial judge found that the Appellant had a strong sexual attraction to pubescent and prepubescent females. He also found that this attraction was understood by the Appellant as abhorrent to the community and that acting upon it, as the Appellant did, constituted serious criminal conduct. The trial judge drew attention to the fact that the Appellant adopted a persona as an intelligent, caring and empathetic man as a camouflage which would allow him access to victims.
The trial judge doubted very much that the Appellant had any understanding of the concepts of morality or conscience. His Honour noted that the Appellant had demonstrated no remorse for the crimes or for the damage that had been inflicted upon the victims. During the period which the Appellant had spent in custody he had not engaged in any therapies designed to avoid sexual reoffending and had continued to deny responsibility for the criminal conduct. His Honour noted that after the Appellant serves his nonparole period he would be liable to be deported.
As can be seen from the table at paragraph [8] there were four identified victims in total. The offences ranged from one that attracted a maximum sentence of three years to one that had as its maximum 15 years’ imprisonment. In considering the “objective seriousness” of the Appellant’s offences trial judge said:

The Appellant, in his primary written submissions, conceded that it was reasonable to describe all instances of the offences of which the Appellant was convicted as serious. He goes on to submit, correctly, that such a description does not end the process of assessment of objective seriousness. Again correctly, he submits that amongst offences that may be described as serious there exists a spectrum.
The Appellant drew attention to the COPINE scale as an established methodology for the assessment of the seriousness of an image. That scale involves categorisation based upon different levels of activity concerning the offence of possession of child pornography. See the discussion in R v Oliver [2003] 1 Cr. App. R. 28 at [9]-[12] where the categorisation is reduced to five levels derived from the COPINE scale.
The trial judge did not refer to that scale in this case. He was not asked to do so. The Appellant was convicted of one offence of intentionally possessing child pornography (Count 17) and was sentenced to 6 months’ imprisonment which was entirely concurrent with another sentence. There is no challenge to that sentence of six months’ imprisonment.
However, the submission that the Appellant made implicitly under this heading was that, for the purpose of the sentencing, the seriousness of the incidence of offending, outside the offence of possession of child pornography, should be objectively evaluated by a process analogous to assessment against the Oliver scale. Undoubtedly that submission is correct. The trial judge set out his finding on this topic at AB 24.It is set out at par [40] above. No express criticism was made of this passage by the Appellant. However, it is true that in this passage the trial judge dealt with manner of access to the victims and not expressly with the Appellant’s activity and indecent dealings with the victims. That is obviously another aspect or dimension of objective seriousness.
At the hearing of the appeal the Appellant’s counsel submitted that three of the 17 sentences imposed by the trial judge were outside the range available in the circumstances of the offending (T.16). These were the sentences imposed for counts 4, 6 and 10 on the first indictment. Each of these three offences was of using a child under 12 years of age for the production of child pornography. Each of the offences related to the complainant E. This offence is contrary to s 64(1) of the Crimes Act 1900 (ACT) and carries a maximum penalty of 15 years’ imprisonment. The Appellant was sentenced to 3 years’ imprisonment on each of these counts.
A number of matters common to each offence can be noted. The Appellant was not entitled to any discount for pleading guilty. Although the Appellant should be taken to be of good character for the purpose of sentence, that good character had reduced weight in the circumstances of the offending. The complainant in respect of these offences was six or seven at the time of their commission. The Appellant was 30. The offences were committed in breach of trust in the manner described by the trial judge at AB 24. The Appellant committed the offences to obtain sexual gratification.
In Count 4, the Appellant took images including close up shots of the complainant’s anus and vagina, including shots in which the Appellant’s fingers are shown pulling the complainant’s underwear to one side. The images were taken while the complainant was apparently asleep.
In Count 6, the Appellant took a series of images while the complainant was apparently asleep on two separate occasions some minutes apart. The images depict the complainant’s buttocks and genital region including close-ups of her anus, vagina and labia. Some of the images depict the Appellant’s fingers near the complainant’s genital region and pulling aside her underwear.
In Count 10, the Appellant took a series of images depicting the complainant lying on her bed apparently asleep. The images depict the Appellant’s finger inside the complainant’s underwear.
The images obtained were found on a Western Digital hard drive located at the Appellant’s then residence. The trial judge was satisfied that the hard drive was retained by the Appellant in order to save the images so that he could remove them later to some other platform. There was no finding that these images were to be viewed, or were viewed, other than by the Appellant nor was there any finding that they were to be, or were, disseminated.
The Appellant did not submit that the trial judge made findings or observations which were either irrelevant or inaccurate. Rather, the Appellant took issue with the implicit evaluation of the offending by the trial judge against examples of other more serious offending which would come within the same prohibition.
The trial judge, it was submitted, made no appropriate findings as to where this “serious offending” fitted into the spectrum of seriousness coming within the prohibition.
Counsel for the Appellant did not refer specifically to any analogous cases to disturb the conclusion that a sentence of three years on each count was justified in the circumstances for this offending against the statutory background of 15 years.
We cannot find any manifest error in the conclusion that three year sentences were justified at law for this offending. As previously noted, the Appellant could point to no specific error in His Honour’s remarks with respect to the three sentences. It is not open to us to form our own view unless error is identified or the sentences are so plainly unjust that error must be inferred (manifest excessiveness).
The Appellant has not shown that the sentences on counts 4, 6 and 10 of the first indictment are outside the range open to the sentencing judge.

We have considered this ground briefly knowing that the ultimate sentence will need to be, at least, restructured for failure to comply with the legislation governing the fixing of a nonparole period.
During our consideration we have kept two matters in mind. The first is the trial judge’s misstatement of the maximum penalties referred to in [15] above may have resulted in an error in those sentences. The second is that inaccurate assessment of the overall criminality involved may also have resulted because the trial judge did not apply the principle of totality against the correct statutory framework.
Both the Appellant and the Crown relied on a number of cases as demonstrating the level of sentences given to comparable offending as an indication of whether the total sentence was manifestly excessive. That approach was approved by this Court in R v Campbell [2010] ACTCA 20 at [32]-[35].
Most attention was focussed upon R v TW (2011) 6 ACTLR 18 and R v Tamayo-Del Solar (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 14 March 2013).
It is necessary to summarise the facts in TW. It was a Crown appeal where the Director of Public Prosecutions asserted that the sentences were manifestly inadequate. The sentencing judge had sentenced TW to a total term of imprisonment of seven years with a total nonparole period of four years and six months. This was after TW had pleaded guilty to three counts of committing an act of indecency upon a child, five counts of using a child for the production of child pornography, two counts of possessing child pornography, one count of using a carriage service to access child pornography, one count of using a carriage service to distribute child pornography and one count of using a carriage service to transmit child pornography. As a result of the appeal, the majority increased the overall sentence to 9 years and 7 months’ imprisonment with a nonparole period of 5 years and 6 months. However, this resulted partly from the application of Dinsdale v The Queen (2000) 202 CLR 321, which had the effect of reducing the sentence from 10 years and one month.
There are many common features between the offending by the Appellant and TW. However, it must be said that TW’s offences were at a higher level on the scale of seriousness both in terms of his indecent physical acts and dealings with the children (he took a video of his one year old son playing with his erect penis) and also the scale of his dealings in images together with their distribution to like-minded persons over the internet. He possessed 23,549 images and 1,013 videos. What needs to be kept firmly in mind is that TW pleaded guilty and received from the trial judge a 20% discount for this fact and also received a further discount for his assistance in detecting other offenders and this was set at 10%. In terms of subjective circumstances, TW met the criteria for paedophilia. His paedophilic urges were described as compulsive and egosyntonic. This last expression was used to convey the fact that TW did not see his thoughts or behaviour as undesirable, bad or disturbed. His personality inadequacies led TW to his compulsive involvement with paedophilic sex with both real children and pornographic images.
In R v Tamayo-Del Solar the accused pleaded guilty to four offences and was found guilty after a judge alone trial of a further offence. The offences were committed on two young girls aged 9 and 11 at the relevant time. The offences were of committing an act of indecency upon a person under the age of 10, committing an act of indecency upon a person under the age of 16, intentionally possessing child pornography, using a child to produce child pornography and using a carriage service to transmit communications with the intention of procuring a young person to engage in or submit to sexual activity with him. Access to the victims was obtained through a breach of trust. The trial judge found that Tamayo-Del Solar had inveigled his way into the trust of both the victims and their parents, and in so doing was afforded opportunities for unsupervised access to the victims, during which times he engaged in the relevant criminal activities.
Again there are a number of common features between the offending of the Appellant and Tamayo-Del Solar. The physical acts of indecency are comparable as is the scale of the production of pornography and its possession. At a general level the Appellant committed more offences of a like nature than did Tamayo-Del Solar.
The overall sentence given to Tamayo-Del Solar was six years and three months’ imprisonment with a nonparole period of three years and 10 months.
Some assistance can be obtained from these two cases, but that assistance is limited. We were not referred to criminal statistics concerning other comparable cases and the cases referred to above do not establish an available sentencing range, much less show that the sentences imposed in this case fell outside that range.
The comparable cases to which we were referred do not compel the conclusion that the sentences that were imposed were outside the available range, that is, that they were manifestly excessive.

The jurisdiction to entertain the appeal on sentence is given to the Court of Appeal by the Supreme Court Act 1933 (ACT). It was accepted by both parties that the relevant test for intervention by the Court of Appeal was whether there had been an error of the kind set out in House v The King (1936) 55 CLR 499. In the absence of such an error the appeal must be dismissed.
In exercising the jurisdiction on appeal, we keep in mind that we must make an explicit finding of error. This is a precondition to the exercise of the authority which the appellate court enjoys under the law to disturb the conclusions of the trial judge, manifested in that judge’s orders (Markarian at [100] per Kirby J.)
We are of the view that a number of errors have intruded into the sentencing process.
The Appellant was sentenced without having regard to the fact that two distinct sentencing regimes applied. The sentences imposed upon the Appellant were not authorised by law. Those sentences must be recast in any event. There were three material misstatements of the maximum penalties applicable to the offences to which the Appellant was found guilty. The trial judge, in having regard to the principle of totality, must have applied it against a mistaken statutory background.
A consequence of undertaking a resentencing is that confidence in the administration of justice will be maintained and there will be no room for the perception that a series of major procedural failings has led to a miscarriage of justice.
We are in a position to resentence the Appellant because there has been no challenge to the primary findings of fact below.
We approach the task bearing in mind the two regimes, the correct maximum penalties stated above for each offence, the fact that there is no discount for any plea of guilty and the trial judge’s findings of fact. We have regard, just as the trial judge did, to punishment and deterrence as being important in this type of offending in the light of the factual findings. We also give limited weight to the Appellant’s previous good character.
We view all these offences as serious. We also recognise the breaches of trust set out by the trial judge concerning the manner of access to the victims as being an aspect of the seriousness of the offences. We also evaluate the terms of the Appellant’s activities and indecent dealings with the victims against the range of conduct within each statutory prohibition. That is a further aspect or dimension of objective seriousness. The trial judge did not expressly state where the offending fell within the continuum of objective seriousness.
Finally, in accordance with Pearce, we have considered accumulation and have had regard to the principle of totality set out in Mill. Necessarily, the structure of the sentences imposed must accord with the two regimes. We have found it convenient to start with the Territory offences and accumulate the federal offences upon them in order to encompass the entire criminality associated with both Territory and federal offences.
Accordingly, the order is:

Edwin v R [2014] ACTCA 47

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Legislation Cited (6)

Cases Cited (12)