Gilshenan v R

Court of Criminal Appeal (NSW)|2019-10-09|Before: Macfarlan JA, Johnson J, Cavanagh J, MacFarlan JA

The Applicant's Subjective Circumstances

The Applicant was 43 years old at the time of the offences and 44 years old at the time of sentence.

Psychological Evidence Concerning the Applicant

A report of Kathryn Wakely, forensic psychologist, dated 12 January 2019 was tendered in the Applicant's case on sentence in the District Court. Ms Wakely said the following with respect to the Applicant's attitude to the present offences (paragraph 45): "Mark indicated these offences relate to him viewing 'mild stuff... pictures and videos from nudist websites.' He said he did not think this 'was anything major' and although he acknowledges the offending, he continues to dispute that this material should be considered child pornography. He went on to quote past books and movies that have featured naked children and questioned why these too have not been made illegal. He spoke of 'everyone' having naked pictures of children in their family albums and queried why the police 'seem to be hammering down on that at the moment'."
A little later, Ms Wakely stated (paragraph 49): "Mark continued to question the severity of the offences given his perceived view of these images as 'mild.' He indicated his charges are 'mild' comparative to his previous 2014 offending and suggested if police are 'really serious about this they should ban all past images of nudity'."
Ms Wakely noted that the Applicant fell within the "well above average risk" category with respect to the risk of commission of another sexual offence by reference to the STATIC-99R assessment tool.
Ms Wakely noted a number of dynamic risk factors to be taken into account with respect to the Applicant (paragraph 59): "In Mark's case, the following are factors of relevance; problems with intimate and non-intimate relationships, recent problems with employment, mental health problems, attitudes that support or condone sexual violence including deviance, problems with substance abuse, problems with self-awareness, problems with planning, treatment, and supervision."
Ms Wakely's clinical opinion included the following (paragraph 64): "Mark has received treatment for his offending in the form of medication and counselling previously however with limited efficacy. He adheres to unhelpful beliefs that promote ongoing deviancy which underlie his reluctance to actively address problematic areas. At assessment, Mark continued to defend past and current offending behavior and his inappropriate beliefs and attitudes about child pornographic material. He displays some understanding of the reasoning for laws preventing this behavior and is aware of his reporting conditions and some of the potential wider implications of such offending. Nevertheless, Mark does not appear motivated to change his behavior and does not necessarily see non-contact sexual offending as harmful to others"
Ms Wakely concluded her report with the following very guarded assessment (paragraphs 66-67): "66. Mark's risk, as measured by the Static 99-R, places him within the Well Above Average range. Examination of dynamic factors highlights numerous areas for concern that will need to be addressed. Considering Mark's presentation and attitude toward his offending behavior, he will likely require close and consistent monitoring to manage risk for further offending over the longer term. 67. Re-trialing medications to assist Mark to manage deviant sexual impulses may be of assistance to him and this would need to be done under the supervision of a forensic psychiatrist, who could continue to monitor Mark's level of risk and response to medications."

Some Further Extracts from the Sentencing Remarks

Having regard to the grounds of appeal, it is appropriate to make mention of a number of findings and conclusions expressed in his Honour's detailed and careful sentencing remarks.
The sentencing Judge made a number of findings concerning the objective seriousness of the offences. With respect to Count 1 (the fail to comply with reporting obligations offence) his Honour said (ROS8): "In assessing the objective seriousness, I take into account the underlying purpose of this scheme is to protect the community from offenders with a history such as this offender. The community is entitled to have confidence in the supervision of which requires the offender being appropriately monitored and complying with his registration and reporting conditions. Only through those means can the object of the Act be achieved and the protection of the community maintained. The breach is, on its face, a serious failure to comply with the reporting conditions and has to be looked at in the context of his criminal history. The offender has admitted in the past to being able to manipulate its observations and monitoring of him when he has attended to get alcohol whilst avoiding being detected as a result of the monitoring bracelet."
His Honour referred to a number of factual features of this offence and concluded (ROS9): "The aim of s 17 of the Child Protection (Offenders Registration) Act 2000 is to enable authorities to protect the safety of the community and children by regulating and being aware [of] the activities undertaken by persons convicted of child sex offences. His behaviour on this occasion avoided and frustrated that object. I am satisfied overall that the offence falls just below the midrange of objective seriousness."
The sentencing Judge then turned to Count 2 (the offence under s.474.19(1) Criminal Code (Cth)) (ROS9-10): "In assessing the objective seriousness of this offence, I take into account the period of time of the offence was between 18 November and 26 November 2017. The material of what is accessed I am told is towards the lower end of the child abuse material, by reference to the Interpol baseline categorisation as set out in MFI 3. As already indicated in reciting the facts in this matter, the images involved naked children, either alone or together, and on occasionally, in the presence of adults, exposing the genital and anal area. There is no evidence that they were involved in any sexual activity, either between themselves or with the adults, however, the gravamen of the offence is focused on the misuse of the internet and the role it plays in the dissemination of child pornography and is intricate and essential to that obnoxious industry. It particularly fosters and provides the exploitation of children and makes such child abuse material available globally with relative use and in a manner which is highly difficult to detect. The details of the access as set out in paragraphs 11 and 12 of the Agreed Facts identify they were for the purposes of obtaining child abuse material and satisfying the offender's sexual interest in prepubescent children. In paragraph 12 of the Agreed Facts, it is clear the police search revealed the offender had visited sites on numerous and multiple occasions. Paragraph 14 sets out the full Internet Explorer history, showing the files accessed and I have identified those in the Agreed Facts. I would assess this offence as falling below the midrange of objective seriousness, taking into account the period of the access, the sites visited, the unsophisticated nature of the searching and the fact it does not appear to be well planned. I also take into account the purpose was his own sexual gratification. Again, it underlines the ease with which the material is able to be obtained with a considerable degree of secrecy. His parents with whom he lived and who were aware of his proclivities were not aware that this was occurring, despite them being cognisant of these concerns."
The sentencing Judge made the following findings concerning Count 3 (the offence of possessing child abuse material contrary to s.91H(2) Crimes Act 1900 (NSW)) (ROS10-12): "The particulars in relation to the child abuse material possessed are set out on page 3 of the Agreed Facts under paragraphs 17, 18 to 21. I have already identified the nature of the items he was in possession of and it falls within Category B's broad range and towards the lower end. Ms Tawagi who appears on behalf of the offender has set out with some specificity the details of that material and I am satisfied it falls towards the lower end of objective seriousness. The Crown submits that irrespective of that classification I need to look at the context of his past offending to properly characterise the objective seriousness of this offence. Clearly, it was for his sexual gratification, particularly in view of his admitted attraction to prepubescent children. Clearly, it was something that he was aware he should not be doing in view of his past offences. The offence to access is, I accept, a separate offence, although there is some overlapping in relation to the offences by way of his using the internet to access it and possessing it. The fact it was possessed by him underlines the separate nature of the offence as distinct from him viewing it on the internet is that it was there for future access and viewing at any time. It exacerbates the demeaning of the victims depicted in the videos. Both parties have addressed the criteria suggested as relevant in assessing the objective seriousness for such offences, such as identified by the Court of Criminal Appeal in Minehan v R [2010] NSWCCA 140 at [94] and R v Porte [2015] NSWCCA 174 at [63]-[64]. I am satisfied the fact [there is] no evidence of an intention to sell or [distribute] the child abuse material does not mitigate the offence, although its presence would certainly aggravate it. These types of offences are not victimless as the courts have often identified. The seven videos contained real children, male and female, sometimes in the presence of adults. All were depicted in a naked state. They fall within the Interpol base category B which is broad and as I have already referred to on a number of occasions, the images are towards the lower end of objective seriousness in that categorisation. They did not depict victims subjected to torture, cruelty, physical abuse or engaged in sexual acts or positions. The exposure was of the children in a naked state and depicted their genitalia. The children's ages ranged between two and 12 years. I am satisfied the offender kept them upon his computer, in an unsophisticated manner of storage, but available for his own sexual gratification. The material was not for dissemination to either like minded offenders, nor is there any evidence before me other children were capable of accessing material on his computer. He was not proximate to the creation of the child abuse material. There is no evidence of any high level of planning or sophistication in the offences. It is apparent that some of the images were downloaded and laminated and placed within a folder. It suggests an alternative storage method readily accessible to him. I am satisfied this offence falls towards the lower end of seriousness for offences of this kind. Many of these matters, as Ms Tawagi has pointed out, that come before [the] courts involve offenders who have been involved in storing in a very sophisticated manner many thousands of images depicting child abuse material involving children involved in sexual acts and subjected to torture and cruelty. Those factors are not present here."
Finally, his Honour made findings concerning the disseminate child abuse material offence contained in Count 4 (ROS12-13): "The dissemination of this arises as a result of various citizens coming across material that had been discarded near their residences, in the laminated form. The evidence before me is that the offender panicked when police were investigating him and had thrown these away out of the motor vehicle that he was in and were disseminated in that fashion. That is somewhat unusual in relation to offences of this kind which are normally directed towards offenders disseminating child abuse material to other like minded offenders or to use as a form of grooming in relation to potential victims by exposing them to it. This offence is unique in that regard and it is my view, one that would place it towards the lower end of objective seriousness in relation to such offences. He knew it was child abuse material and it had been laminated and placed with the folder. The people who found the discarded images were unable to be determined by him when he disseminated it at random and in a state of panic, however, there was the potential this material could have been found by children or [other] like minded offenders and it caused concern in those who found it, and who either brought it to police attention or destroyed it immediately. The dissemination occurred in an area in which children potentially lived, that is, a residential area. Overall, I am satisfied that the offence falls towards the lowest end of objective seriousness when compared to like type offences of this kind."
Given the complaints in the second ground of appeal, it is appropriate to set out the way in which the sentencing Judge approached the Applicant's prior criminal history (ROS13-14): "The offender has a criminal history in relation to committing offences of a similar nature. The Crown contends these types of convictions are those contemplated in Veen v The Queen which operates to aggravate the offence and demand a considerable degree of retribution, deterrence and protection for the society which will result in a more serious penalty than would otherwise be warranted. The nature of the offender's prior convictions and his continuing course of conduct, I am satisfied, requires a more severe sentence and indicates a significant degree of specific deterrence is a highly important consideration in determining the final sentence. The offender has already served lengthy periods of imprisonment for similar offences and it would appear with little deterrent effect. I also take into account that the offence was committed whilst he was on conditional liberty in relation to similar offences. He was on parole at the time of these offences, for child pornography offences, which was revoked on 27 November 2017. He has subsequently served the balance of parole. I am satisfied these are factors that should be taken into account as aggravating one. In addition, the Crown asks that I take into account his behaviour involved a series of criminal acts of a similar nature. I am satisfied to some extent that is appropriate, however, in determining totality, will take into account where those offences lie in relation to determining an overall sentence."
The sentencing Judge then addressed the Applicant's pleas of guilty and the issue of remorse where his Honour referred to parts of Ms Wakely's report. Having done so, his Honour concluded (ROS16): "I am not satisfied he is remorseful or has any real appreciation of the seriousness of the current offending. The reasons for that, despite his history, is the concrete thinking identified by Ms Wakely and his autism. These are factors that are also relevant in relation to assessing his prospects of rehabilitation."
The sentencing Judge then turned to the Applicant's other subjective circumstances and personal history together with mental health issues. His Honour expressed the following conclusion with respect to the Applicant's prospects of rehabilitation and the risk of him reoffending (ROS21): "Despite the fact he still has the support of his parents I am satisfied their incapacity to effectively monitor and control his behaviour is aptly demonstrated by the commission of these offences. In all of the circumstances I cannot make a finding that he has good prospects of rehabilitation or is unlikely to reoffend. There is no suggestion that his sexual interest in children has abated. He told Ms Wakely he still had a preference for children between the ages of eight and ten years of age. I am satisfied there is a high risk of him reoffending and I am concerned the lack of treatment he has been provided, not only previously whilst he was being monitored within the community on parole, but also that he has been in custody now for a considerable period of time on remand waiting sentence without any programmes being available. This is one of the tragic aspects of the current system whereby people on remand are provided no assistance in relation to overcoming matters that would address their capacity for rehabilitation. Unfortunately, in many respects, the time he has spent in custody has been purely punitive and not addressed the rehabilitation function of a custodial sentence."
The sentencing Judge referred to the Applicant's mental health issues and autism in reaching the following conclusions (ROS21-22): "In relation to his mental health, I have taken into account that he suffers from depression and anxiety as reflected in him seeing a psychiatrist on occasions in custody, although the consequences and outcome of that have not been made available to me. His Autism, of course, is an underlying difficulty for him in functioning and managing, not only this custodial system, but also the community. Despite my findings in relation to the existence of those factors, there is no evidence before me that those issues identify a reduction in his moral culpability or that they are causally connected to the commission of these offences. None has been suggested by Ms Wakely in her report."
His Honour noted that the Applicant's case was "a difficult sentencing matter" (ROS22). His Honour had regard to the need for both specific and general deterrence in sentencing the Applicant (ROS22-23): "Section 3A of the Crimes (Sentencing Procedure) Act outlines a number of factors that can be taken into account as being purposes of sentencing that may be relevant in relation to sentencing an offender. In respect of offences of this kind, it has been repeated on a number of occasions that general deterrence must be paramount and I accept that. Other like minded offenders must be dissuaded by condign sentences being imposed. In relation to this offender, particularly, in view of his offending whilst on parole [for] similar offences he had been previously convicted of, indicate there is a need for emphasis on specific deterrence. In addition to those factors and, particularly in light of his comments to Ms Wakely and his attitude in relation to the commission of these offences, there is real need for the protection of the community. That is a factor that looms large, in my view, in the sentencing process and has to be balanced against the need to encourage his rehabilitation."
His Honour made a finding of special circumstances with respect to the State offences to allow a longer period of time in the community to ensure that the Applicant was properly supervised with some intensity to achieve a situation that he can live within the community crime-free and manage his underlying sexual predilections (ROS24).
His Honour applied the totality principle in the following way (ROS25-26): "I have taken into account the fact these offences were committed during a course of … criminality. As such, they are distinct, even though some overlap, to some extent, as I have identified, in particular, the possession of child abuse material is achieved as a result, to some extent of his use of the carriage service to access it. However, they are distinct offences and, whilst there needs to be some concurrency in relation to the offences, I am satisfied they are distinct to some extent and require an accumulation in respect of each."
The sentencing Judge approached the Form 1 offence (to be taken into account on sentence on Count 1) in the following way (ROS26): "In respect to the Form 1 offence, I will take that into account by slightly elevating the penalty for the offence to which it attaches."
His Honour then proceeded to sentence the Applicant in the manner summarised earlier in this judgment, directing that the recognisance release order operate from 22 April 2020 and be subject to the following conditions (ROS26-27): "(a) That during that period you be subject to supervision of a Community Corrections officer. (b) That you obey all their reasonable directions. (c) To make yourself available for assessment as to suitability of programmes to be undertaken within the community for your rehabilitation. (d) To undertake those programmes and treatments as directed by a community corrections officer."

Ground 1 - Alleged Error with Respect to Sentence for the Offence Under s.474.19(1) Criminal Code (Cth) (Count 2) Submissions

Mr Dean, counsel for the Applicant, submitted that the sentencing Judge had erred in considering that the gravamen of s.474.19(1) Criminal Code (Cth) was the misuse of the Internet as opposed to the relative severity of the content accessed in assessing the objective seriousness of an offence. Counsel drew this phrase from the extract from the sentencing remarks set out earlier (at [33]).
It was submitted for the Applicant that the sentencing Judge had effectively diverted attention from the particular factual circumstances of the offence with what was said to be an inaccurate statement with respect to the gravamen of a s.474.19(1) offence.
Counsel submitted that the objective seriousness of this offence was at a low level with the Internet searches being crude and unsophisticated and the content being at the lowest level that could constitute child pornography. It was submitted that the sentencing Judge had erred by not correctly addressing the objective seriousness of the present offence.
The Crown submitted that no error had been demonstrated in accordance with the stated ground of appeal. It was submitted that it was necessary to read all that his Honour said concerning this offence, leading to a finding that the objective seriousness of the offence fell below the mid-range of objective seriousness. Decision
It is necessary to read his Honour's sentencing remarks with respect to the s.474.19(1) offence fully and fairly (see [33] above). When that is done, it is clear that his Honour has addressed relevant matters concerning the objective gravity of that offence including the nature of the material involved.
His Honour's reference to the gravamen of the offence concerning misuse of the Internet in the context of child pornography was an acknowledgement that, in an area where Commonwealth and State offences were frequently prosecuted together, a s.474.19(1) offence was based upon the use of the Internet in the area of accessing and disseminating child pornography. What his Honour said in that respect reflects what this Court said in R v Porte at [55]-[56].
His Honour's reference to this aspect is an orthodox and appropriate observation to make with respect to a Commonwealth child pornography offence and was accompanied by his Honour's description of the offence and characterisation of its objective seriousness by reference to factors which bore upon that issue, including the period of time during which this offence was committed, the nature and classification of the child abuse material, the number of images and the fact that the Applicant had visited the sites on numerous occasions for the purpose of his own sexual gratification. His Honour took into account the sites visited, the "unsophisticated nature of the searching" and the fact it did "not appear to be well planned".
His Honour assessed the offence in Count 2 as "falling below the midrange of objective seriousness", a finding which was clearly open in the circumstances of the case.
I would reject the first ground of appeal.

Ground 2 - Claim of Error in the Sentencing Judge's Use of the Applicant's Prior Criminal History on Sentence Submissions

Counsel for the Applicant accepted that his prior offending in this area meant that he was not entitled to the same leniency as someone with no prior convictions. It was submitted, however, that his Honour had erred in his reliance upon Veen v The Queen (No. 2) in the manner set out earlier in this judgment (at [36]).
The essence of the argument advanced for the Applicant under this ground was that his offending in the present offences was less serious than that involved in his previous child pornography offences, so that reliance on the principles in Veen v The Queen (No. 2) was misplaced.
The Crown submitted that his Honour was entitled to adopt the approach challenged by this ground of appeal upon the basis that the Applicant had once again committed child pornography offences, based upon his predilection for prepubescent girls against the background of having been sentenced for child pornography offences, involving prepubescent girls just a few years ago.
The Crown submitted that it was open to the sentencing Judge to adopt the approach challenged in this ground of appeal. Decision
It was the fact that the Applicant had been sentenced to a significant term of imprisonment for child pornography offences in 2015. Having been released on parole for those offences, the Applicant committed further child pornography offences. His motivation for the commission of the 2015 offences and the 2017 offences flowed from his sexual attraction to prepubescent girls.
In Veen v The Queen (No. 2), Mason CJ, Brennan, Dawson and Toohey JJ said at 477-478: "… the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v. Ottewell (1970) AC 642, at p 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties."
The principles in Veen v The Queen (No. 2) and Baumer v The Queen (1988) 166 CLR 51; [1988] HCA 67 at [13]-[14] have been taken to establish that the principle of proportionality requires the upper boundary of a proportionate sentence to be set by the objective circumstances of the offence which circumstances do not encompass prior convictions: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [24]. However, as was said in Veen v The Queen (No. 2), an antecedent criminal history is not relevant only to an offender's claim of leniency. If an offender manifests in the commission of the offences for which sentence is to be passed "a continuing attitude of disobedience of the law", then "retribution, deterrence and protection of society" play a part on sentence, although not in a manner which allows imposition of a sentence which is disproportionate to the objective gravity of the offences.
His Honour's approach to the Applicant's prior criminal history was open in this case where the Applicant was a repeat offender motivated by the same aberrant drives which led to the commission of the earlier offences. The sentencing Judge was well aware of the gravity of the earlier offences compared with that of the offences for which the Applicant was to be sentenced.
The principles emerging from Veen v The Queen (No. 2) and R v McNaughton are not moderated where a repeat offender commits a lesser form of offence of the same type. What is pertinent is that the Applicant demonstrated a continuing attitude of disobedience of the law in the form of repeat child pornography offences.
It has not been demonstrated that his Honour erred in the manner alleged in the second ground of appeal.

Ground 3 - Claim of Error in the Sentencing Judge's Approach to the Form 1 Offence Taken into Account on Sentence for Count 1 Submissions

Counsel for the Applicant submitted that the sentencing Judge had erred in "slightly elevating the sentence" on Count 1 by reason of the Form 1 offence referred to at [4] above (see [43] above). It was submitted that the photographs of a female child apparently taken in 2013 were tied up in the offences for which he was sentenced in 2015 and that no additional allowance should have been involved to elevate the sentence on Count 1 for this offence.
It was submitted that, in effect, the Form 1 offence was entirely encompassed within the offences for which the Applicant was sentenced in 2015.
The Crown submitted that it was open to the sentencing Judge to take the approach adopted to the Form 1 offence which was a separate offence, not dealt with at the time of the 2015 offences, which the Applicant requested to be taken into account on sentence on Count 1. Decision
The Applicant requested the sentencing Judge to take into account the Form 1 matter in passing sentence for the offence contained in Count 1. His Honour was well aware that the Form 1 matter involved photographs taken in 2013, but retained on undeveloped film by the Applicant (see [12] above). The film contained 16 photographs, two of which depicted a young female child, eight to 10 years old, playing in her backyard. The Applicant had taken these photographs of the young child who lived next door in 2013, with the photographs taken over the back fence. The Applicant had retained the film although it had not been developed.
It was a matter for the sentencing Judge to determine what impact the Form 1 offence would have in passing sentence on Count 1. It was entirely open to the sentencing Judge to determine that some slight elevation in sentence was appropriate as a result of the Form 1 offence. Such an approach is entirely consistent with what this Court said in Abbas v R (2013) 231 A Crim R 413; [2013] NSWCCA 115 at [22]-[23].
No error has been demonstrated in his Honour's approach to this matter so that the complaint contained in Ground 3 ought be rejected.

Ground 4 - Claim that the Sentence was Manifestly Excessive Submissions

Counsel for the Applicant submitted that the sentences imposed for the offences were manifestly excessive as was the element of accumulation so that the total effective sentence was also manifestly excessive.
The Applicant relied upon the submissions mentioned at [9] above in support of this ground of appeal.
Counsel for the Applicant submitted that there was an excessive level of accumulation with respect to the sentence for the s.474.19(1) offence where the offence was said to be of a low level of objective seriousness.
It was submitted that the Applicant's offences were of lesser gravity than the 2015 offences and that this aspect bore as well upon the submission that manifestly excessive sentences had been passed.
The Applicant sought to rely upon a number of sentencing decisions in other cases in support of the claim of manifest excess. In this respect, the Applicant relied upon Hong v R [2017] NSWCCA 238, Peters v R [2018] NSWCCA 126, Dennis v R [2017] VSCA 251 and Maine v R [2018] VSCA 56. Particular reliance was placed upon Dennis v R and Maine v R where the offender had a prior history of offending.
The Crown submitted that neither the individual sentences nor the total effective sentence was manifestly excessive. It was submitted that the authorities relied upon by the Applicant did not demonstrate any error on the part of the sentencing Judge nor did they establish a range of sentence as against which the present sentences could be measured, and certainly not a range which supported a claim of manifest excess in the present case.
The Crown submitted that these were repeat child pornography offences committed by the Applicant when subject to parole for offences of that class. The risk assessment undertaken by the psychologist who reported for the Applicant indicated an elevated risk of the Applicant reoffending. The Crown submitted that the effective custodial component of the overall sentence was 53.8% so that the Applicant received a significant level of conditional liberty as part of the overall sentence.
It was submitted that the sentences were not manifestly excessive. Decision
It is necessary to keep in mind the approach to be taken by this Court in determining a ground of appeal which asserts that a sentence was manifestly excessive.
In Obeid v R (2017) 96 NSWLR 155 at 241; [2017] NSWCCA 221, this Court said at [443]: "When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. * Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. * Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. * It is not to the point that this Court might have exercised the sentencing discretion differently. * There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. * It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
The sentences imposed for each offence were set out at [3] above in a table which indicated the maximum penalty for each offence.
The findings of the sentencing Judge concerning the offences and assessments as to their objective gravity were referred to earlier in this judgment (at [31]-[35]). It is clear that his Honour made careful and considered assessments with respect to the objective seriousness of the offences in this case. In addition, his Honour had regard to the fact that the Applicant was subject to parole at the time of the offences having a prior history for child pornography offences. Added to this (unhelpfully for the Applicant) was the detailed report and opinion of Dr Wakely, psychologist, who identified a continuing lack of insight on the part of the Applicant accompanied by the maintenance of his sexual predilection for prepubescent girls (see [24]-[29] above).
General deterrence is an important factor on sentence for this class of offence: R v Freedman (2017) 268 A Crim R 453; [2017] NSWCCA 201 at [77]; Peters v R at [45].
In addition, there was a need for specific deterrence to be reflected on sentence given the Applicant's equivocal attitude towards offending of this type (see [24]-[25], [28] above).
To the extent that the Applicant particularised Ground 4 by reference to Grounds 1-3, I note that each of those grounds of appeal has been rejected in this judgment when considered individually. The sentencing Judge did not err in his findings with respect to the objective seriousness of the s.474.19(1) offence nor the approach taken to the Form 1 offences.
The level of accumulation was a discretionary matter for the sentencing Judge. For reasons explained (at [42] above), his Honour directed that the sentence on Count 2 commence at the completion of the sentences for the State offences in Counts 1, 3 and 4. It was appropriate for the sentencing Judge to keep in mind the different vices to which the Commonwealth and State offences were directed in determining issues of concurrence and accumulation: R v De Leeuw [2015] NSWCCA 183 at [114]; R v Freedman at [84]-[85]. No error has been demonstrated in his Honour's approach in that respect.
Although the sentence of three years' imprisonment for Count 2 was cumulative upon the sentences for the State offences, his Honour directed the release of the Applicant by way of recognisance release order after only one year. Clearly, his Honour had in mind an extended period of supervision of the Applicant in the community to aid his rehabilitation and protect the community. The custodial component was only 53.8% of the total effective sentence.
The Applicant placed considerable emphasis on two decisions of the Victorian Court of Appeal, Dennis v R and Maine v R as comparators. It was submitted that when regard is had to these two cases, the overall sentence imposed was manifestly excessive.
In Alarcon v R [2018] NSWCCA 298, Schmidt J (Basten JA and Fagan J agreeing) said at [86]: "Manifest excess cannot, however, be established simply by pointing to other cases where lower sentences have been imposed. That is because by pointing at sentencing statistics and other decided cases, it is always possible to identify sentences imposed on other offenders, which are either more or less lenient: Vandeventer v R [2013] NSWCCA 33 at [45]."
Subject to this significant caveat, I turn to the Victorian decisions upon which the Applicant relies.
It is firstly convenient to deal with the similarities between the three cases. In all the cases, the offender had a previous history of similar offending for which they had been convicted and, by extension, the sentencing Judges had made adverse findings with respect to their prospects of rehabilitation and risk of reoffending. Further, none of the offenders could rely on their youth as a mitigating factor (although the Applicant was the youngest of the three, 44, at the time of sentence).
A key, and obvious, feature which distinguishes the Applicant's case from those in Dennis v R and Maine v R is that the Applicant was on parole for similar offences (including an offence under s.474.19(1) Criminal Code (Cth)) when he committed the offences the subject of this appeal.
In Maine v R (at [2], [19]), it was noted that the offender had reoffended "soon after the completion of his parole period [for similar offending] and after he had completed a sex offenders rehabilitation program" and this "elevated the importance of specific deterrence". The offender in Dennis v R was not on parole when he committed his offences, and at least five years had passed since his previous offending of a similar nature.
The Applicant was sentenced to a term of imprisonment of three years, with a non-parole period of 12 months for his s.474.19(1) offence. He received a total effective sentence of four years and four months, with an effective minimum term of two years and four months.
Both the offenders in the Victorian cases received higher individual sentences for their s.474.19(1) offences. In Dennis v R, following a successful appeal, the offender received a sentence of imprisonment for three years and three months, with a non-parole period of one year and six months for the s.474.19(1) offence - his total effective sentence was imprisonment for three years and nine months, with a minimum term of two years. In Maine v R, the offender received a sentence of three years and six months, with a non-parole period of two years for the s.474.19(1) offence - his total effective sentence was four years and six months with a minimum term of three years.
The Applicant here pleaded guilty to the three State offences mentioned earlier (at [2]).
The Victorian offenders each pleaded guilty to an offence of knowingly possess child pornography contrary to s.70 Crimes Act 1958 (Vic). That section (now repealed) is virtually identical to the comparable New South Wales offence under s.91H(2) Crimes Act 1900, save for a significant difference in the available maximum penalty. The offence to which the Applicant pleaded guilty (Count 3), carried a maximum penalty of 10 years' imprisonment. The Victorian offence carried a maximum penalty of imprisonment for five years. Further, the offender in Dennis v R had also pleaded guilty to an offence of failing to comply with his reporting conditions (analogous to the New South Wales offence), but did not have an offence on a Form 1 attached.
As noted earlier, the offender in Maine v R had undergone a sexual offenders' rehabilitation program. Neither the Applicant (as specifically noted by the sentencing Judge at ROS22), nor the offender in Dennis v R, had previously undertaken such a rehabilitation program.
It was accepted in Dennis v R, that the offender suffered from a condition that meant he had "difficulty processing information and organising himself with a view to complying with legal obligations, and learning from his mistakes". The Court observed (at [114]-[118]) that this had a causal link to his failure to report, but did not affect the child pornography offences. The sentencing Judge in Dennis v R (at [50]) had accepted in mitigation that, because of his condition, it would be difficult for the offender in custody and that his condition may also deteriorate. No such evidence had been led in Maine v R. In this case, the sentencing Judge had taken into account that the Applicant suffered from depression and anxiety, and that he had a "sad background, limited by his Autism Spectrum Disorder" (ROS21-22).
A close analysis of these cases does not assist the Applicant. However, it does serve to illustrate the oft-repeated point that there will inevitably be differences between cases both in terms of the objective circumstances of the offending and the subjective circumstances of the offender: RLS v R [2012] NSWCCA 236 at [132]; Alarcon v R at [86] (see [88] above).
The Applicant's claim of manifest excess is not assisted either by the decisions of this Court in Hong v R and Peters v R with respect to sentencing principles and sentencing patterns for this class of offence. If anything, those decisions serve to fortify a conclusion that the sentences in the present case were open to the sentencing Judge.
I do not consider that the cases relied upon by the Applicant serve to demonstrate that any of the individual sentences, or the total effective sentence, were manifestly excessive. They constitute sentencing decisions reached in the particular facts of each case.
The Applicant has failed to demonstrate that either the individual sentences, the level of accumulation or the total effective sentence has given rise to a sentencing outcome which is unreasonable or plainly unjust. The sentencing Judge's approach in this case, which was characterised accurately as being a "difficult sentencing matter" (see [40] above), was balanced and reasonable in the circumstances of the case.
The Applicant has not demonstrated manifest excess. Accordingly, this ground of appeal ought be rejected.

Conclusion

The Applicant has failed to make good any of his grounds of appeal.
I propose the following orders: 1. grant leave to appeal against sentence; 2. appeal against sentence dismissed.
CAVANAGH J: I agree with Johnson J.

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: 20 December 2019

Grounds of Appeal

By Notice of Application for Leave to Appeal filed on 21 August 2019, the Applicant relies upon the following grounds of appeal: 1. Ground 1 - The sentencing Judge erred in considering that the gravamen of s.474.19(1) Criminal Code (Cth) was the misuse of the internet as opposed to the relative severity of the content accessed in assessing the objective seriousness of an offence. 2. Ground 2 - The sentence Judge erred in applying the principles in Veen v The Queen (No. 2) (1988) 164 CLR 465; [1988] HCA 14 without taking into account that the reoffending was of significantly less seriousness than the previous offences. 3. Ground 3 - The sentencing Judge erred in slightly elevating the sentence imposed for the failure to comply with the reporting conditions offence by reason of the Form 1 offence. 4. Ground 4 - That in all the circumstances, the sentence imposed was manifestly excessive.
The Applicant's Notice provided the following particulars of the claim of manifest excess in Ground 4: 1. Grounds 1-3 above. 2. The sentencing Judge erred in failing to find that the objective seriousness of the s.474.19(1) offence was towards the lower end of seriousness for this type of offence. 3. The sentencing Judge erred in failing to find that the objective seriousness of the reporting offence was towards the lower end of seriousness for this type of offence. 4. The sentencing Judge erred in failing to make the sentence for the s.474.19(1) offence partially concurrent with the State offences. 5. The total sentence imposed is out of proportion compared to decisions of appellate courts in this State and elsewhere in Australia for more serious offending.
It will be observed that the particulars of Ground 4 themselves contain assertions of express error on the part of the sentencing Judge in various respects. This approach is not consistent with the concept of manifest excess which is based upon a claim of an unreasonable or plainly unjust sentencing outcome rather than the commission of express errors in that process: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [58]-[60].
That said, the particulars of Ground 4 will be approached as arguments advanced by the Applicant to seek to explain why it is contended that a manifestly excessive sentencing outcome resulted: Carroll v The Queen (2009) 83 ALJR 579; [2009] HCA 13 at [9].

Facts of Offences

The sentencing Judge made findings of fact in accordance with an Agreed Statement of Facts tendered in the District Court. His Honour said (ROS2-7): "On 26 April 2017, [t]he offender was released to parole after serving a period of imprisonment in relation to the possession and dissemination of child abuse material and other like-minded offences. Due to these offences, he was placed on a Child Protection Register for 15 years. He had also made admissions as to his sexual attraction to prepubescent female children. In accordance with that classification he was subjected to reporting conditions and electronic monitoring. Whilst in custody he was served with a form 3 outlining his obligations as a registrable person upon his release from custody. On 27 April 2017 he provided the relevant personal details document to the police and updated these details on three occasions prior to the alleged offences, the last occurring on 28 June 2017. On 27 November 2017, the monitoring officer observed he was frequenting a number of residential locations in the Windsor Downs area. This was detected by his attached electronic tag. Attempts were made to contact him, but were unsuccessful. The monitoring officer contacted the police and sought their assistance in locating the offender. The offender made contact with the monitoring room and informed the officer he had been with his mother delivering pamphlets that morning in the Windsor Downs area and failed to comply with reporting obligations. Police attended his residence that morning and inspected property pursuant to s 16C of the Child Protection (Offenders Registration Act) 2000. During the time he was asked a number of questions regarding information he provided on the form 4. He was questioned about delivering the pamphlets. It was highlighted to the offender this constituted a form of work and had not been disclosed on his reporting form. He stated he had been assisting his mother who was paid by SLAMAT to deliver the pamphlets in return for him not paying rent. The offender stated his role was to fold and deliver the pamphlets. Delivery sometimes required him to throw the pamphlet out of the car and other times to put it in the mail box. The assistance is considered 'volunteer position' and his failure to disclose his volunteer work is a breach of his reporting obligations. The form 3 document signed by him identifies a definition of work as including 'as a volunteer'. While the offender was not receiving any monetary payment, he was receiving a benefit in that he did not have to pay rent. Police said he used carriage service to access child pornography. Police inspected a computer of the offender and reviewed its content. They observed a drop box on the laptop and were advised by the offender he did not use it. When they inspected his web browser, they saw under the 'favourites' tab web sites such as 'purenudism.com, nudistchildrenandparents, nudeinRussia [and] nudistpicturescollection'. These were observed to be saved under this bookmark. He told the police he had just looked at these websites and confirmed the images concluded by adults and children and refused to comment he was looking at the websites. Police subsequently conducted a full download of his computer and provided a report as part of the brief. A Google search demonstrated he had viewed the following items on multiple occasions, including (a) pregnant preteen pictures, (b) pregnant preteen, (c) pregnant kids' pictures, and (d) nudists. Additionally, a full Internet Explorer history was retrieved and identified he had accessed files and websites with the following names (a) nudist videos, (b) pictures swimwear, beach girl, (c) pool, shower and spa, mattress, family events pictures, (d) pregnant child bride photos, (e) nudist pix gallery, (f) Russian nudist, (g) pregnant preteen, (h) young nudists of Australia. It is accepted these websites contained 'child pornography'. Websites and search terms are similar to the Websites previously accessed by the offender [for] offences to which he pleaded guilty and had been sentenced in the past. Police left the offender's residence in possession of his computer and had it examined by an officer from SEEB to determine the contents. On 27 November 2017, the offender voluntarily attended Windsor Police Station where he was formally arrested in respect of the material on his computer. He was cautioned and charged and declined to participate in an interview. Access Child Pornography Police located a number of videos and images on the computer of the offender which amounted to child abuse material. Seven of these videos were classified as category 2 depicting the children in various nudist settings. Category 2 is really a reference to category B on the Child Abuse Material Interpol Baseline Categorisation MFI 3 in these proceedings. It identifies other child abuse material and falls within a broad category of increasing seriousness of offenders which range from torture to exposing the genitalia area or anal area or breasts of the female child. Clearly, these nude depictions fell within the least serious of these descriptions. Paragraph 18 of the Facts sets out in short summary the contents of each of the videos which indicate there were full frontal and rear nudity shown of a number of children, sometimes with boys and girls and sometimes in the presence of adults. There is no evidence of any sexual activity portrayed in them. Later that day, a police officer stopped the offender in George Street and conducted a random breath test which was negative. The officer noticed pieces of paper in a plastic sleeve on the floor of the front passenger seat containing images of a female child in a dancing costume. It appeared to have been cut from a newspaper or magazine. Subsequent checks revealed his prior convictions were registrable offences. The officer then contacted Windsor detectives. Form 1 offence - Stalk with intent to cause fear Police attended to assist and searched the offender's vehicle was completed. In the glove box they located an undeveloped roll of camera film. The defendant was cautioned and questioned about it. He said, 'I don't want to answer questions. It may be stuff from my last address that I got in trouble for'. The film was developed and showed 16 photographs, two of which clearly depicted a young female child, eight to ten years of age, playing in her backyard. She was fully clothed and playing with a ball. The remaining photographs were blurry. They were taken over the top of the fence in circumstances where she was unaware of the photographs. The child in the photograph was identified as being the offender's next door neighbour in 2013. It is accepted these images were taken at some point prior between 1 January 2013 and 31 December 2013. Disseminate Child Photography A member of the public attended Windsor Police Station on 30 November 2017 to report finding the image of a naked woman and child in the shower. Due to the graphic nature of the image, the witness took the image to the police and informed them they had located it on the front fence of his property in Londonderry. The image was laminated. On 4 December 2017, a search warrant was executed on the premises of the offender. Police located an A4 laminator and ring binder containing numerous laminated photographs and newspaper clippings. Police attended Carrington Road, Londonderry on 6 December 2017 to further inquiries of images being located. A canvass of the area was conducted. Further laminated images were located which were summarised as (a) an image depicting numerous naked children and (b) naked girl being painted by naked women. Another witness informed police she had located an image of naked children on the beach which she disposed of immediately. Two council workers also approached police and informed them that two further images had been located over the past week and disposed of. One of the images was a naked boy approximately 11 to 14 years of age in a beach setting. The image was on a laminated A4 page with hole-punch marks in the left column. An audit report of the offender's movements on the afternoon of 26 November 2017 was provided to police. At approximately 12.02, he had left his house in Bligh Park, travelled to the suburbs along a route consistent with where the images had been located. The offender informed the author of a report tendered on his behalf that he had thrown these away as he was concerned that he may have been arrested by police for their possession and he was dispossessing himself of them."

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