Gifford v R

Background

1. The following summary of the offending conduct, which occurred over a period of about three months between 6 October 2014 and 26 December 2014, is largely drawn from the Agreed Statement of Facts tendered in the sentence proceedings.
2. The applicant was 35 years of age at the time of the offences, which involved the sending of text communications to the victims using the electronic "Facebook Messenger" service. The Facebook account used by the applicant was in his own name. There were two victims, both girls. CLT, the victim in respect of the sequence one offence, was aged 13 at the time; MS, the victim in respect of the sequence two offence, was aged 14 at the time.
3. The applicant did not know either of the victims. At the sentence hearing, his legal representative informed the Court that the applicant had been "introduced" to them via Facebook by someone else. He never actually met with either of the victims. He did not attempt to conceal his identity; indeed he sent a genuine photograph of himself to CLT. At the time of the offences, he was living with his parents and was a university student. When the applicant's digital devices were seized and examined, no pornography nor any child or adult sexual exploitative material was found on them.

Sequence one - CLT

1. The applicant first contacted CLT using Facebook on 6 October 2014, sending the message "Hey im the guy that was gonna do a sex deal with you. Are you interested just me and you?". On 10 October 2014, the applicant sent CLT a further message offering "200 for a blowjob and sex". In the course of that day there were about 100 messages over a period of 10 hours, including: whether CLT would "give head"; whether he could "cum in [her] mouth"; how much he would pay her; that he would pay her on a regular basis if she would [do it]; that he wanted to do it while she was 13; asking whether she was "sure [she was] OK to fuck an old guy"'; asking her to swear no one knew they were talking; saying that they would have to meet when it was dark because of her age; asking her "And how many guys you fucked and you on birth control" and to "send your nude to prove you serious"; telling CLT never to tell anyone as he did not want to go to jail; asking her to promise that she was 13; telling her the "main reason I want to fuck you is cause 13 the one age I never fucked"; asking her whether she would let him "suck your tits finger and lick your pussy"; asking other sexually explicit questions; asking whether she would engage in anal sex; suggesting he "might get us a motel so we can be comfortable and I can give you a mad fuck"; and telling her "just make sure you fully shaved no hair at all".
2. The victim's sister then sent a message on that day telling the applicant not to message her sister like that, to which the applicant responded among other things that "she wasn't planning on meeting anytime soon" and that "I think she was all talk anyway". The applicant then asked for the phone number so he could contact the victim's sister, requesting her not to call the police and asking her (the sister, who was then 20 years old) "Would you have sex for money".
3. The applicant continued to send messages to CLT on Facebook between 11 October and 26 December 2014, in total sending messages on 10 different days. On 25 December 2014, in response to a challenge by the sister, he seemingly sought to justify his conduct and said "If it wasn't for you your sister would be talking to me and would have meet up. She was going to … but I decided against it".
4. The applicant was arrested on 29 December 2014. When arrested, the applicant (who agreed to the general conversations put to him but said he had no recollection of specific messages or exact conversations) said that, where discussions as to the age of the victim had occurred, this was his way of making sure the victim was over 16 years of age or he was talking "bullshit".
5. Nevertheless, the applicant concedes that he believed CLT was 13 at the time of the offence.

Sequence two - MS

1. The second victim was identified following an examination of the applicant's telephone. She was 14 years of age. The applicant sent a text message to MS at 1.26am on 26 November 2015 which stated "but yeah I prefer small or no tits that's why love to do a deal with you". Over a period of about one month, the applicant contacted MS via phone calls, text messages and Facebook messages, initially requesting that she meet with him to give him "head" for $50. He stated that he would get a hotel room for that purpose. MS agreed to the proposed arrangement.
2. The applicant thereafter proposed to MS that he meet with her in a hotel where he would pay her a sum of money provided she have sex with him a number of times over a period of four hours. MS agreed to this and arrangements were made for MS to come to Parramatta to meet with the applicant. Once MS was at Parramatta station the applicant stated that he was not in Parramatta but that, now he knew she would follow through with the arrangements, he would come next time.
3. Contact between the applicant and MS ceased when she deleted him from Facebook contact with her and blocked his number on her phone.
4. After his arrest, the applicant was offered an opportunity to participate in an electronically recorded interview in relation to the allegations involving MS. He said he had heard her name before but did not know her personally. When asked about his text messages and call history in relation to MS he declined to comment further.

Sentence hearing

1. As noted, the applicant pleaded guilty to both charges. At the sentence hearing the agreed statement of facts was tendered. The applicant's prior criminal record was in evidence. That record included an offence in September 2011 of using a carriage service to menace, harass or offend, in contravention of s 474.17(1) of the Criminal Code. The conduct in question involved the applicant harassing an adult work colleague by calling her and heavily breathing over the phone, sending a photo message to her mobile phone that depicted his erect penis, and requesting, via mobile text messages, that she have sex with him for money. The sentence imposed was a non-custodial bond. The applicant also had convictions for offences of aggravated robbery and deprive person of liberty for which he was sentenced to a term of full-time imprisonment in October 2006.
2. A pre-sentence report dated 22 October 2015 was tendered by the Crown. The report noted that Forensic Psychology Services had reviewed the applicant's file and had assessed the applicant's risk of sexual (and violent) reoffending (using an actuarial assessment tool known as Static99R) as being in the Moderate-High category relative to other male sex offenders.
3. The applicant tendered a report dated 4 November 2015 from a psychologist, Rev Dr Peter Powell, who gave evidence in chief and was not cross-examined by the Crown. In his oral evidence, Rev Dr Powell gave his occupation as "psychologist and clergyman" (T 3.9). His written report, which contains an acknowledgment of, and agreement to be bound by the expert witness code of conduct, sets out his "profile" and describes (at [1]-[5]) his experience, which seems broadly to be that of a counsellor or pastoral counsellor.
4. The report does not set out any particular medical or scientific qualifications held by Rev Dr Powell as a psychologist, but states that he is a psychologist registered in Australia; a clinical member of the Australian and New Zealand Association for the Treatment of Sexual Abuse; and that he is clinically accredited with the New South Wales Child Sex Offender Counsellor Accreditation scheme to work with adults and an accredited supervisor with the New South Wales College of Clinical Pastoral Education, of which college he is currently the President. The report states that he completed a half unit part time (200 hours) supervised "Clinical Pastoral Education" in 1979 and four units (400 hours) as a full-time fellowship recipient at Royal North Shore Hospital in 1980, counselling primarily in the spinal unit; that he studied in New Orleans in "Clinical Pastoral Education" and counselling; and that he undertook a three year counselling program in Illinois while also undertaking doctoral studies at Garrett-Evangelical Seminary in Chicago, Illinois, where he completed a doctoral dissertation on "Cross-Gender Friendships: Implications for the marital dyad", focussing on the attitudes and behaviour of couples in central Illinois.

Sentencing remarks

1. After recounting the agreed facts, her Honour said (at p 5;) that, in terms of subjective (sic; it is accepted by the applicant that her Honour here must have meant "objective") seriousness for offences of this type, each offence was in the mid to high range.
2. Her Honour then considered the material tendered by the applicant and summarised his subjective circumstances. Referring to Rev Dr Powell's report, her Honour (at p 7) expressed some concern at his opinion that the applicant's "propensity to want to share the responsibility with the girls distorts the clarity of the disclosure and his attitudes are strongly influenced by the possibility of punishment for wrongdoing rather than a moral commitment to treat others with respect". Her Honour noted that the account Rev Dr Powell gave of the applicant was that of a disturbed man (at p 8).
3. When summarising Rev Dr Powell's report and evidence, her Honour noted that the applicant had indicated to Rev Dr Powell that he never intended actually to meet the girls he was contacting and said (at p 8): The Offender did not give evidence. It is difficult to assess the veracity of that statement, particularly, when in both situations the children broke off contact with the Offender. I do not accept that he would not have met with the children.
4. Of significant concern to her Honour in the pre-sentence report was that the applicant had said that he believed the girls he approached were young girls who had understated their age and he tended to feel he was misled by them, something her Honour noted was clearly not true. Her Honour also said that the applicant's failure to accept full responsibility for his actions and his lack of empathy to the children was of concern (at p 9).
5. Her Honour noted the Crown's submission as to the need for general deterrence as there is a significant public interest in protecting children from sexual abuse from predators such as the applicant (at p 10).
6. Addressing the submissions made by counsel for the applicant, her Honour noted the submission that in relation to both offences the applicant did not actually meet with the victims (at p 11). Her Honour treated that submission with caution as the applicant did not give evidence. Her Honour also said that she did not accept that the applicant had committed the offences "for the thrill of the chase", responding to the applicant's submission that there was no sign of child exploitation material or pornography on the applicant's computer and that she would accept the evidence of Rev Dr Powell "that it was the thrill of the chase rather than intending to meet and have sex with a 13 or 14 year old for money".

Section 474.26(1) of the Criminal Code

1. Before turning to the various appeal grounds, it is important to note that the offences with which the applicant was charged, and to which he pleaded guilty, include as an element of the offence the intention to procure the recipient of the relevant communication to engage in sexual activity.
2. The definition of "sexual activity" does not require any meeting in person. Rather, "sexual activity" can be by means of a communication that allows the sender to see or hear the recipient. A person may be found guilty of an offence against s 474.26 even if it is impossible for the sexual activity referred to in the section to take place (s 474.28(8)); for example where the sender is communicating with recipient who is using an assumed online identity.
3. The offence is committed if a person (in this case the applicant) who is at least 18 years of age uses a carriage service to transmit a communication to a person (the recipient) who is, or who the sender believes to be, under 16 years of age and the sender does this with the intention of procuring the recipient to engage in sexual activity with the sender. (See ss 5.6(1) and 5.2 of the Criminal Code as to the fault element of the offence.)
4. By his plea of guilty, therefore, the applicant accepted that he communicated with both CLT and MS with the intention of procuring them to engage in sexual activity with him. The applicant expressly disavows any attempt to traverse that plea. However, the argument mounted for the applicant on appeal is that he did not persist with, or act upon, that intention, a matter which is said to lessen the objective seriousness of his offending.
5. In R v Fuller [2010] NSWCCA 192 (at [25]-[26]) McClellan CJ at CL said, of the seriousness of an offence contrary to s 474.26, that: The internet has produced many benefits for the community but has also brought some problems. One of those problems is addressed by s 474.26 of the Commonwealth Criminal Code. The offence is made possible because the internet provides access to communicate with others anonymously. Tragically, experience has shown that it is not uncommon for immature persons, particularly females, to explore the internet and accept communications from adults who are seeking sexual encounters with children. Because a child can access and navigate the internet without the supervision of a responsible adult, the opportunity for a sexual predator to identify a potential victim is significant. If communication is made, the harm to the young person may be considerable, even if sexual activity does not ultimately occur. Of course, the potential for harm will be greater if sexual activity does take place. (my emphasis) It is for these reasons that the legislature has made it an offence to use the internet to procure a young person to engage in or submit to sexual activity. It is also apparent that the detection of the offence may be difficult. For this reason the legislature has determined that the law enforcement authorities should be empowered to identify persons who are seeking to communicate in the manner prohibited by the section by creating fictitious identities.

Ground 1 - rejection of Rev Dr Powell's evidence as to intention

1. The applicant emphasises the following oral evidence given by Rev Dr Powell (at T 12.38-13.8), part of which has already been extracted at [27] above: Q. Just before we move away from this area, in the course of the material you've been provided with or in conference with Mr Gifford, has he communicated to you or have you read there's no sign, phones, computers, tablets of child porn anywhere? A. No that's my understanding, yes. And he's said that to me and that's my understanding of the material I've got, yes. Q. And would that tend to suggest to you that his preference really lay up the older age and scale and this was some sort of opportunity that presented? A. It more relates to the kind of depression and personality he has in that -he's unusual, because there are very few people in Mr Gifford's place that don't have some exploiting material, either adult or child on their computers, but his, I guess, modus operandi was the thrill of engaging the dialogue with these people, who he, I think, correctly said I was never going to [meet], I actually find that quite believable, when the girl turned up he wasn't there. It's just the part of his addiction of thrill-chasing is to do all these exciting things and see if they can happen and then he never turns up, because I couldn't engage them anyway. So it's more some weird attempt to making a relationship work than it is to actually go into deviant pornography [or] other behaviours. (my emphasis)
2. In the applicant's written submissions at the sentence hearing, the Court was asked to accept that "part" of the satisfaction the applicant gained from the Facebook communication "was the act of communication in and of itself", something said to be "to some degree accepted" by the fact the applicant did not attend the Parramatta train station for the meeting arranged with MS (at [17]).
3. In oral submissions before the sentencing judge, the following was said (on which the applicant here places particular importance): He accepts at the time that he was on the computer, as you heard from the psychologist, that he was enjoying the chase and that he had the intention at that point to send those messages to entice those people, and that's what needs to be proved. The name of the case escapes me at the moment and one of the authorities talks about a submission that's made that says but he never went through with it. Well we accept that's not an element of the offence. But the reason I actually raise that for your Honour's consideration is in concert with the last series of questions to the psychologist, on his mobile phone, on his computers, on three different devices there was no other signs of child exploitation material, none whatsoever, which is in my experience ... (T 16.25-32) (my emphasis) … [after the judge interjected "It's unusual"] … Very unusual indeed. Which is why I asked the question I did about was there, say, crime of opportunity. … [After then making the submission that the applicant had been introduced to the victims through the environment of Facebook as a university student communicating with people substantially younger than him, the submission proceeds] It wasn't that people were being sought out, there was this opportunity. You heard from the psychologist it was the thrill of the chase' (T.17.3). (my emphasis)

Determination

1. Although the Crown was apparently prepared to accept that Rev Dr Powell's opinion was appropriately being put forward as an "expert opinion", the basis upon which it is said to be an expert opinion is by no means apparent.
2. Without intending any disrespect to Rev Dr Powell, who the sentencing judge found to be an impressive and frank witness (and who the applicant's counsel lauded as someone who was not just a "gun for hire"), all that can be gleaned from his report as to his qualifications as a psychologist is that he has had education, training and experience in the field of counselling or pastoral counselling. It is not apparent that counselling is a recognised area of expertise of the kind that would permit Rev Dr Powell to opine as an expert as to the subjective motivation for the applicant's conduct (i.e., the thrill of the chase theory) or as to the veracity of statements made by the applicant as to his lack of an actual intention to meet the victims (i.e., a lack of intention to act upon the very arrangements into which he was inducing them to enter). It is by no means apparent that the opinion of a counsellor as to those matters would satisfy the test articulated by King CJ in R v Bonython (1984) 38 SASR 45 at 46-7 for expert evidence. (And in this regard I note that the authors of Cross on Evidence (JD Heydon, 10th ed, 2014, LexisNexis) express the opinion that it is peculiarly a matter within the province of the jury to form an opinion as to past intentions (see [29050], citing R v Chard (1971) 56 Cr App R 268; R v Makoare [2001] 1 NZLR 318 at [21]-[22]).
3. It seems apparent from Rev Dr Powell's report, and from the questioning at the hearing of Rev Dr Powell by counsel for the applicant as to the counselling programme and its effectiveness compared with counselling or programmes that might be available in gaol, that the issue to which his report was primarily addressed was as to the applicant's prospects for rehabilitation (which was linked to the question as to whether a finding of special circumstances ought be made to enable the applicant to undergo the programme of counselling that Rev Dr Powell envisaged would be necessary in his case). That may explain the otherwise rather surprising forensic decision apparently taken by the Crown neither to challenge Rev Dr Powell's expertise to give "expert" evidence on matters going to the applicant's subjective intention or thought processes at the time of the offending nor to test by way of cross-examination Rev Dr Powell's acceptance (counter-intuitive as he said it was) of the applicant's statements as to the applicant's lack of intention actually to meet the respective victims.

Ground 2 - characterisation of the objective seriousness of the offences

1. The applicant submits (but apparently only for the purpose of noting this) that there is potential inconsistency in her Honour's initial description of the objective seriousness of the offences as being "in the mid to high range" or to the mid to high end of the scale of such offences (see pp 5; 12) on the one hand and her Honour's description of it being "high" (see p 12) on the other hand. However, the nub of the challenge to her Honour's reasons thrown up by ground 2 is the submission that a proper assessment of the objective seriousness in this case would place it at "no higher than" the middle range or (if ground 1 is upheld and it is accepted that Rev Dr Powell's opinion as to lack of an intention actually to meet the victims was inappropriately rejected) possibly at the low to mid range.
2. The applicant concedes that the statement of de Jersey CJ in Hays at [22] is applicable to the present case: A meeting for the purpose of sexual exploitation carries particular risk to the immature victim. But so does indecent communication by an offender of mature years directed at an immature and therefore vulnerable child over the Internet. The graphic, salacious nature of what this applicant said, and did, if directed to a truly vulnerable 13 year old girl, would have carried serious potential to corrupt.
3. He accepts that the communications sent by him were unquestionably "extremely grotesque and deviant" given the age of the victims; that they occurred persistently over a significant period; and that they involved offers of financial inducement.
4. However, it is submitted that the lack of subterfuge (about the applicant's age or true identity), the lack of sophistication and pre-planning, the absence of any sexually explicit images being sent by the applicant, and the fact that the electronic communications did not result in any actual meeting with the victims, are all considerations that are also relevant to the issue of objective seriousness.
5. The applicant draws a distinction between the 'thrill-chasing' modus operandi, to which Rev Dr Powell referred, and his use of extreme language in his communications with the victims (on the one hand), and what he argues is the more objectively serious type of manipulative communication described by Hall J in Tector v R [2008] NSWCCA 151; (2008) 186 A Crim R 133 at [97] (Giles JA and Barr J agreeing) (on the other): However, a communication that contravenes the section may be deliberately or strategically expressed in terms that propose a lower level of sexual activity in order to enhance the prospects of initially establishing a relationship between the sender and the recipient and/or to disguise an existing intention to engage in a more serious level of sexual activity than that proposed. In other words, what may be termed a "low level" of proposed sexual activity may be considered by a "sender" to be more effective in encouraging, enticing or inducing etc a child than one that blatantly conveys a high level of sexual activity.

Determination

1. In Mulato, Spigelman CJ stated (at [37]): Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour.
2. Simpson J in that case similarly said at [46]: The assessment of the objective seriousness of an offence is quintessentially for the sentencing judge. … The importance of respecting the role of a first instance judge should never be underestimated. It is not the function of this Court to substitute its own view of objective seriousness for that of the first instance judge. (my emphasis)
3. See also R v Fahda [2013] NSWCCA 86 at [4] per Simpson J.
4. No error has been demonstrated in her Honour's assessment of the objective seriousness of the offence.
5. Apart from the fact that her Honour did not err in not accepting that the applicant's relevant intention did not persist beyond the sending of the communications (for the reasons set out above), the assessment of the offending as being a high degree of objective seriousness was clearly open to her Honour for the reasons her Honour gave.
6. It is clear from Fuller that this is a serious offence whether or not the communications led to actual sexual activity. The fact that there was no meeting with the victims (and that CLT did not actually send the requested nude photograph) does not lessen the objective seriousness of the offence. It merely means that the potential harm is not greater than that contemplated by the offence itself. While I would not accept that the fact of there being no meeting has only peripheral relevance in the present case, it does not lead to the conclusion that there was error in the assessment of objective seriousness of the offence. There were (and were conceded to be) grossly sexual and indecent communications to teenage girls. The relevant harm lay in the impact of the communications themselves. Ground 2 is not made out.

Ground 3 - assessment of the applicant's prospects of rehabilitation

1. Ground 3 raises a complaint as to the assessment of the applicant's prospects of rehabilitation.
2. The applicant argues that there is an apparent "contradistinction" between the statement by her Honour that she had grave concerns as to the prospect of rehabilitation (at p 15) and her Honour's later statement that at this stage it was very difficult to assess the applicant's risk of re-offending (at p 16).
3. Complaint is also made by the applicant as to the statement by her Honour that she was not so persuaded (as to the applicant's prospects of rehabilitation) as to make a finding of special circumstances. It is submitted that the basis for the "apparent reservation that the primary judge had in accepting the unchallenged and uncontradicted expert evidence" (i.e., Rev Dr Powell's optimism as to the applicant's prospects of rehabilitation) was not made clear. The applicant again notes in this regard the positive observations made by the sentencing judge as to Rev Dr Powell's qualities as a witness.
4. The Crown submits that the findings by her Honour as to the applicant's prospects of rehabilitation were not contradictory. I agree. The holding of "grave reservations" about re-offending is consistent with the degree of risk of re-offending being difficult to assess. Rev Dr Powell himself accepted that there was a risk of re-offending (unless the offender engaged in an "evidence-based" treatment programme) (see [32] above). The Forensic Psychology Services Report identified a moderate-high risk of re-offending. It was clearly open to her Honour to reach the view she did in this regard.
5. It is further submitted by the applicant that her Honour erred in her treatment of the evidence in relation to the risk of re-offending and that the overall tenor of her Honour's comments relating to the applicant's prospects of rehabilitation is more akin to that which would be expected in relation to a recidivist offender. In this regard, the applicant points to the lack of any prior offences of a similar kind involving children or child abuse material and the absence of any other child abuse material on his digital devices or related offending conduct at the time of these offences. He takes issue with the suggestion that his prior "use carriage service" offence was of significance (as demonstrative of his lack of regard for the victims - see her Honour's reasons p 11) and argues that the primary judge did not place weight on his apology letter (and erroneously treated this as a case where there was no evidence from him).

Determination

1. No error has been established in her Honour's findings as to the applicant's prospects of rehabilitation.
2. The relevance attributed by her Honour to the previous use carriage service offence was (correctly) to note that it disentitled the applicant from receiving the benefit of being a first offender (Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14 at 477). That would be the case whether or not the offence involved a child (and in any event there was no misunderstanding by her Honour as to the circumstances of that previous offence).
3. As to the submission that the applicant's letter of apology ought to have weighed in her Honour's assessment of the applicant's prospects of rehabilitation, the Crown argues, and I agree, that the sentencing judge was entitled to give the letter such weight as her Honour considered appropriate, having regard to the absence of sworn evidence from the applicant. The evidence from Rev Dr Powell is hardly a resounding endorsement of remorse or contrition on the applicant's part (see [28] above).
4. Ground 3 is not made good.

Ground 4 - the overall sentence imposed was manifestly excessive

1. Finally, the applicant submits that, having regard to: the overall (admittedly very serious) objective criminality of the offending, the relevant subjective factors and the statutory purposes of sentencing, the sentence imposed is unduly harsh and therefore one that falls outside the proper sentencing discretion.
2. At the sentencing hearing, the applicant made submissions and provided material to the sentencing judge as to the Judicial Commission sentencing statistics for sentences imposed for offences contrary to s 474.26 of the Criminal Code between 01/10/2010 and 30/09/2015, and as to a number of cases which it was contended were comparable cases (see [54]-[86] of the first instance written submissions). (A table of comparable cases was attached to the appeal submissions, with updated statistics.)
3. The applicant submits that the sentencing judge's failure to avert to those materials, or to refer "even in general terms" to issues relating to current sentencing trends and the application of appropriate legal principles to ensure consistency of sentence when having regard to like cases throughout the Commonwealth (the applicant there referring to The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39), is significant.
4. The applicant points to four decisions which he submits demonstrate, by comparison, that the sentence is manifestly excessive: Tector; Hays (though he acknowledges that this case related to a state offence with a substantially lower maximum penalty - a distinguishing aspect to cases decided under the Queensland state legislation as recognised in Tector at [106]); Gajjar; and Fuller. I consider each in turn.
5. Tector involved a severity appeal in respect of the sentences imposed for three offences contrary to s 474.26(1) of the Criminal Code. The offender was found guilty after trial. He had sent emails and text messages, using a false name, to a 12 year old boy, over a period of 6 weeks, offering him money in exchange for sex. The offender had previous convictions for sexual offences involving children. At first instance the offender was sentenced to 11 years' imprisonment with a non-parole period of 7 years on each count. The appeal was upheld and the offender was resentenced to 8 years' imprisonment with a non-parole period of 5 years on each count, to be served concurrently. The Court held that the offences fell short of what would be considered to be the most serious type of offence under s 474.26(1) but said they were nonetheless offences involving grave criminality.

Determination

1. On a manifest excess ground, it is for the applicant to demonstrate that the sentence was "unreasonable or plainly unjust" (House v The King at 505; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [3]). Such a conclusion does not depend upon identifying specific error in the reasoning of the sentencing judge (Dinsdale v The Queen at [6]). It is not sufficient that an appellate court would have imposed a different sentence (Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [28]).
2. In Markarian v The Queen, the plurality (Gleeson CJ, Gummow, Hayne and Callinan JJ) stated (at [27]): As has now been pointed out more than once, there is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.
3. Similarly, in Hili v The Queen; Jones v The Queen Heydon J said (at [74]): The circumstances of particular crimes and the "character, antecedents and conditions" of particular offenders are so various, the combinations in which they can occur are so numerous, and the relationship between these factors and the purposes which criminal sentences are to serve can be so impalpable, that the application to them of discretionary judgment permitting a range of legitimate outcomes is inevitable.
4. In The Queen v Pham, French CJ, Keane and Nettle JJ said at [28]: (1) Consistency in sentencing means that like cases are to be treated alike and different cases are to be treated differently. (2) The consistency that is sought is consistency in the application of the relevant legal principles. (3) Consistency in sentencing for federal offenders is to be achieved through the work of intermediate appellate courts. (4) Such consistency is not synonymous with numerical equivalence and it is incapable of mathematical expression or expression in tabular form. (5) For that and other reasons, presentation in the form of numerical tables, bar charts and graphs of sentences passed on federal offenders in other cases is unhelpful and should be avoided. (6) When considering the sufficiency of a sentence imposed on a federal offender at first instance, an intermediate appellate court should follow the decisions of other intermediate appellate courts unless convinced that there is a compelling reason not to do so. (7) Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.

Conclusion

1. I would grant leave to appeal but, for the above reasons, I am of the view that the appeal should be dismissed.
2. BELLEW J: I agree with Ward JA.
3. HIDDEN AJ: I agree with Ward JA.

Amendments 14 December 2018 - [114] 'contention' amended to 'contrition' DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2018