Criminal law - Appeal against sentence - Possession of child pornography - Use of a carriage service to access child pornography - Federal and state offences - Voluntary disclosure - One offence involving only written material - Whether sentences manifestly excessive - Whether total effective sentence disproportionate to total criminality

Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 (Cth)

- Counts 1 and 3 - 2 years' imprisonment and 16 months' imprisonment, both to commence on the day the appellant becomes eligible for parole on count 2

The appellant is to be released after serving 12 months of the sentences the subject of counts 1 and 3 and on entering into a recognisance in the sum of $10,000 to be of good behaviour for 12 months

AB v The Queen [1999] HCA 46; (1999) 198 CLR 111

Bayliss v The Queen [2013] VSCA 70

Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525; (1990) 92 ALR 552

Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 244 CLR 638

Colbourn v The Queen [2009] TASSC 108

Dartnall v The State of Western Australia [2012] WASCA 251

Director of Public Prosecutions (Cth) v D'Alessandro [2010] VSCA 60; (2010) 26 VR 477

Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370; (1990) 97 ALR 373

Do v The State of Western Australia [2013] WASCA 218

DPP v Bayliss [2012] VCC 1369

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520; (2010) 204 A Crim R 434

Hill v The State of Western Australia [2009] WASCA 4

KS v The State of Western Australia [2011] WASCA 85

KWLD v The State of Western Australia [No 4] [2013] WASCA 185

LJP v The State of Western Australia [2010] WASCA 85

Melham v The Queen [2011] NSWCCA 121

Naysmith v The Queen [2013] WASCA 32

Phinthong v The Queen [2011] WASCA 192

Ponniah v The Queen [2011] WASCA 105

R v Davis [2012] QCA 324

R v Fulop [2009] VSCA 296; (2009) 236 FLR 376

R v Lee [2013] WASCA 216

R v Mara [2009] QCA 208; (2009) 196 A Crim R 506

R v Oliver [2009] EWCA Crim 100; [2003] 2 Cr App R (S) 64

Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267

Smit v The State of Western Australia [2011] WASCA 124

The State of Western Australia v Cunningham [2008] WASCA 240; (2008) 190 A Crim R 430

4 The appellant pleaded guilty to three charges on a District Court indictment. They were as follows:

(1) on or about 5 October 2010, he had possession and control of child pornography at a place outside Australia contrary to s 273.5(1) of the Criminal Code (Cth);

(2) on or about 2 May 2012 he had possession of child exploitation material contrary to s 220 of the Criminal Code (WA);

(3) between 23 February 2012 and 1 April 2012 he used a carriage service to access child pornography contrary to s 474.19(1)(a)(i) of the Criminal Code (Cth).

5 The appellant was sentenced on 25 October 2012 to 4 years 6 months' imprisonment with a non-parole period of 3 years on count 1, 2 years' imprisonment with eligibility for parole on count 2 and 4 years' imprisonment with a non-parole period of 3 years on count 3. He had been in custody since 2 May 2012. The sentences on counts 1 and 3 were ordered to commence on that date. The effect was that count 3 was to be served wholly concurrently with count 1. The sentence on count 2 was ordered to commence at the conclusion of the non-parole periods for counts 1 and 3. The total effective sentence was therefore one of 5 years' imprisonment of which the appellant would have to serve 4 years before being eligible for release on parole.

6 On 7 April 2013 Mazza JA granted leave to appeal on the single ground of appeal. That ground contends that both the individual sentences and their cumulative effect are manifestly excessive having regard to the nature and circumstances of the offences, the range of sentences customarily imposed, the appellant's guilty pleas and his personal circumstances, including his lack of a prior criminal record. It was accepted on the hearing of the appeal that this ground should be understood as asserting that the sentences imposed for the individual sentences are manifestly excessive and that the total effective sentence infringes the first limb of the totality principle in that the total sentence is

disproportionate to the overall criminality having regard to the circumstances of the case, including those personal to the appellant.

7 There were some minor disputes as to the facts. The undisputed facts were as follows.

8 The appellant was born in Australia. His mother is Dutch and his father from the United States. He has citizenship of all three countries.

9 Between 6 October 2006 and 27 October 2010 the appellant resided in the Netherlands. In October 2010 he approached a Dutch welfare agency to seek treatment for his sexual attraction to female children. He admitted to a counsellor that he had downloaded child pornography. She told him that he would have to report his behaviour to the police before he could be accepted for counselling.

10 On 5 October 2010 the counsellor reported the appellant to the police. Later that same day the appellant attended at a police station and was briefly interviewed by Dutch police. During the interview he agreed to provide the police with his computer devices for forensic examination. He then accompanied police to his home and voluntarily handed over five computer items, being a notebook computer, three hard drives and a USB memory stick.

11 The Dutch police commenced a forensic examination of the appellant's computer items. On 27 October 2010, prior to the forensic examination being completed, the appellant left the Netherlands and travelled to Australia. The Dutch police subsequently completed their forensic examination and determined that images and video files classified as child pornography were contained on two of the hard drives.

12 Once it was established that the appellant had permanently relocated to Australia the authorities in the Netherlands provided the Australian Federal Police (AFP) with the two hard drives and witness statements relevant to the investigation. An examination of the hard drives by the AFP established that they contained 181 images and 13 video files which were classified as child pornography.

13 The images and videos were classified according to the scale adopted in R v Oliver [2009] EWCA Crim 100; [2003] 2 Cr App R (S) 64. That scale is as follows:

(1) images depicting erotic posing with no sexual activity;

(2) sexual activity between children, or solo masturbation by a child;

(3) non-penetrative sexual activity between adults and children;

(4) penetrative sexual activity between children and adults;

14 Using that scale, 172 images and one video were level 1, two images and two videos were level 2, four images and five videos were level 3, three images and four videos were level 4, and one video was level 5.

15 The AFP commenced an investigation into the appellant's current internet activity in February 2012. This established that during the period 23 February 2012 to 1 April 2012 he accessed approximately 40 written text stories which constituted child pornography material. The stories detailed graphic sexual activity between adults and children between the ages of two and 14 years and included themes such as incest, bestiality and child rape. Several of the stories related to teachers molesting their students, children being groomed via the internet prior to being molested and adults involving children in the production of child pornography. The stories ranged in classification from level 1 to level 5 on the Oliver Scale.

16 On 2 May 2012 AFP officers executed a search warrant at the appellant's home. During the search he admitted using his computer to access the internet to read stories with a child pornography theme. He said that sometimes he would access stories every day and at other times he would go for several days without reading them. He had particular authors who were his favourite because he considered their literary skills to be of a high standard. He believed that child pornography referred to videos and images of children under 18 but did not include stories. He admitted being attracted to children but denied ever engaging in sexual activity with children. He said that he was able to manage his sexual attraction to children through use of the child pornography stories.

17 During the search the police located and seized a number of computers, portable hard drives and other storage devices. Subsequent forensic analysis established that these devices contained a total of 6,596 images and 12 video files classified as child pornography. These items were classified on the Oliver Scale as 6,414 images and one video at level 1, 52 images and two videos at level 2, 76 images and five videos at level 3, 49 images and four videos at level 4 and five images at level 5.

18 All but about 500 of the items had been deleted and had to be retrieved by the police using forensic software. Of the 500 items that were readily accessible about half were in what was described as the active part of the hard drive and the rest were in the recycle bin from which they could be retrieved. None of the items were amongst those found by the Dutch authorities on the computer devices that had been handed over by the appellant in the Netherlands.

Pre-sentence report and psychological report

19 The psychological report set out the appellant's personal history. At the time of sentencing he was aged 43. He was born in Western Australia and lived in this State until he was five. The family then moved to the Netherlands. He lived there for a period of six years before the family relocated to Canada as a result of his father's employment. The family remained in Canada for three and a half years before returning to the Netherlands when the appellant was 15. At the age of 18 the appellant moved to the United States in order to attend university in California. He commenced but did not complete a degree in applied physics.

20 The appellant said that his schooling was not adversely affected by the number of moves made by his family. He described himself as a conformist who was rarely in trouble either at home or at school. His home life was stable but not emotionally supportive.

21 The appellant began participating in gymnastics at the age of five and competed on a regular basis until the age of 28. He coached gymnastics for many years, both children and adults, and was employed in this capacity at the time of his arrest. He discontinued his university studies so that he could pursue competitive gymnastics. He worked as a coach in the United States between the ages of 18 and 39. He left the United States in 2006 to return to live and work in the Netherlands. He reported that he left the United States to avoid prosecution for offences of a sexual nature, however he declined to give any other information apart from saying that he had been banned from re-entering the United States.

22 The appellant was married for a period of four years between the ages of 29 and 33. His wife had trained at a gym he worked at when she was a child. They met again a few years later and married. The appellant had had no serious or long term relationships since the marriage ended. He denied any sexual interest in forced or coerced sexual behaviour but admitted that he had an interest in pornography for many years. He stated a preference for images and erotic literature featuring female children aged between 12 and 15 years.

23 The appellant remained in Holland between 2006 and 2010. During this time he was coaching part time and working in an export shipping business. He struggled to resettle in the Netherlands and sought the assistance of a psychologist. He also experienced difficulties associated with the failure of his marriage. He said that as a result of consulting a counsellor he voluntarily presented himself to the police in the Netherlands and handed over computer hard drives.

24 The appellant reported a history of depression following the end of his marriage. He also had a long history of excessive alcohol use beginning in his early 20s.

25 The appellant acknowledged his offending behaviour. In particular, he admitted intentionally searching for and downloading stories depicting what he described as 'romantic relationships with younger aged girls'. He claimed that he was unaware that the stories were considered pornographic and illegal. The psychologist expressed the view that the appellant did not appear to appreciate the deviant nature of his sexual interest in children. His offending behaviour suggests an entrenched sexual interest and doubt was expressed as to the value of participation in a sexual offender treatment programme. However, his personality type was such that it was considered to be relatively unlikely that he would progress to having actual sexual contact with a child. It was not possible for the psychologist to estimate the risk of re-offending by possessing or accessing child pornography.

26 The pre-sentence report noted that the appellant had no criminal record in Western Australia. However, it was suggested that he was 'a person of interest' in the Netherlands and United States of America regarding offences of a sexual nature. There was no other information in this regard and no suggestion that he had a criminal record in either of those countries. The report writer stated that the appellant presented in a cautious and guarded manner and that he minimised his behaviour and feigned ignorance regarding whether written material could constitute child pornography.

27 The sentencing judge accepted that the first offence in 2010 came to light as a result of the appellant seeking professional counselling. However, his Honour noted that no treatment was received at that time and within a few weeks of providing his computer hard drives to the police the appellant left the Netherlands in the knowledge of an ongoing police investigation.

28 The sentencing judge said that the appellant did not make a clean break when he returned to Australia. Rather he resumed use of the internet to access child pornography. He continued to access it until the offences came to light and he was arrested on 2 May 2012.

29 The sentencing judge did not accept that the appellant did not appreciate that accessing and downloading written stories with a child pornography theme constituted an offence. His Honour noted that during the period that the appellant was accessing written stories he was continuing to access and download pornographic pictures of children. His Honour said that the fact that the stories were accessed from similar websites would indicate to the appellant that they were not in the normal public domain.

30 His Honour noted the maximum penalties for each of the offences and the importance of general deterrence in respect of offences of this nature. He said that the material included child pornography in the worst category, that the quantity of material was extensive and had been accessed and used by the appellant over a considerable period of time in two countries. His Honour found that the three offences formed part of a course of conduct which was consistent with the appellant using child pornography for his own sexual gratification. The sentencing judge took into account the appellant's personal circumstances, including his pleas of guilty and disclosure of his offending in 2010.

31 His Honour concluded that sentences of imprisonment to be immediately served were the only appropriate sentences. He considered that some accumulation was appropriate to take into account that the offences had occurred over a period of time and in two different countries. However, in order to ensure that the total effective sentence was not one that was disproportionate to the overall criminality, his Honour considered that it was appropriate to reduce the sentence on count 2 from 3 years to 2 years and to set a commencement date for counts 1 and 3 which would have the effect of those sentences being served concurrently with each other.

32 The offences in this case included both federal and State offences. Different statutory provisions apply. There is, however, a great deal of commonality.

33 In the case of federal offences the matters which a court must have regard to when passing sentence are listed in pt 1B of the Crimes Act 1914 (Cth). The court must impose a sentence that is of a severity appropriate in all the circumstances of the offence: s 16A(1). Section 16A(2) lists the matters that the court must take into account in sentencing. That list is not exhaustive and other matters may also be taken into account. One of these is general deterrence: Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 244 CLR 638 [18] and Director of Public Prosecutions (Cth) v El Karhani (1990) 21 NSWLR 370; (1990) 97 ALR 373. Other common law sentencing principles, including totality are also applicable in respect of federal offenders: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520; (2010) 204 A Crim R 434 [25]. It was also emphasised in Hili that there is a need for consistency throughout Australia in the sentencing of federal offenders.

34 Similar principles apply in respect of State offences. Section 6(1) of the Sentencing Act 1995 (WA) provides that a sentence imposed on an offender must be commensurate with the seriousness of the offence. Seriousness is to be determined by taking into account the maximum penalty, the circumstances of the offence and any aggravating or mitigating factors. The totality principle is expressly preserved by s 6(3)(b).

35 In respect of some offences a term of immediate imprisonment will be the only appropriate sentencing option. This fact does not relieve the sentencing judge from an obligation to determine the appropriate penalty in a particular case and whether, having regard to all the relevant factors, the case requires the imposition of the ordinarily appropriate sentence. Offences involving the possession or importing of child pornography will usually require a sentence of immediate imprisonment. Deterrence is the paramount sentencing consideration in respect of such offences. This applies both to State and federal offences of this nature: Phinthong v The Queen [2011] WASCA 192 [24] (Mazza J) and R v Lee [2013] WASCA 216 [30] - [37] (McLure P).

36 A ground of appeal that a sentence is manifestly excessive asserts the existence of an implied error. In determining whether a sentence is manifestly excessive it is necessary to examine it from the perspective of the maximum penalty for the relevant offence, the standard of sentencing customarily observed with respect of that offence, the place that the criminal conduct occupies on the scale of seriousness of offences of that kind and the personal circumstances of the offender.

37 A complaint that a sentencing judge has infringed the totality principle also involves an assertion of implied error. The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences viewed in their entirety and after having regard to all relevant circumstances, including those referable to the offender personally. Though the comparison of total effective sentences may be difficult given that different offenders may have been sentenced for different types and numbers of offences, comparisons should be undertaken to the extent possible to ensure broad consistency.

38 The relevant circumstances and maximum penalties for each of the offences are different. It is appropriate to consider each of them in turn.

39 The maximum penalty for the offence of possession and control of child pornography outside Australia contrary to s 273.5(1) of the Criminal Code (Cth) is 15 years' imprisonment.

40 Section 273.5 of the Criminal Code (Cth) came into operation on 15 April 2010. It was introduced by the Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 (Cth). That Act also increased the maximum penalty for the offence the subject of the third count, that of using a carriage service to access child pornography contrary to s 474.19 from 10 to 15 years' imprisonment.

41 The Explanatory Memorandum to the Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010 (Cth) provides an indication of the purpose of that Bill. It states:

[T]he internet is creating ever greater demands for new material of ever greater levels of depravity and corruption. The internet is being used to access and distribute child pornography on a massive global scale and offending has become pervasive and widespread. As a result, offending behaviour is becoming increasingly destructive ... Maximum penalties set by the Government are intended to reflect a worst case scenario. They are also intended to indicate to the courts the Government's position on the level of seriousness which it believes the particular conduct involves.

42 As regards comparable sentences, neither the appellant nor the respondent were able to identify any case involving a sentence imposed for an offence against s 273.5. The appellant noted that the offence covers production, distribution and possession and suggested that as a general rule possession of child pornography is less serious than its production or distribution. That may be so but much will depend upon the specific factual circumstances.

43 The appellant also submitted that in the absence of other cases in which sentences for this offence have been imposed it was appropriate to look to cases dealing with the State offence of possession of child pornography in Western Australia. The relevant cases are referred to in respect of count 2. The use of those cases to provide an appropriate range in respect of the s 273.5 offence is of very limited value. This is because of the significant difference in the maximum penalties. Furthermore, some of the earlier State cases occurred when the maximum penalty for the State offence was only 5 years.

44 The suggestion that it is permissible for this court to consider what sentence could have been imposed if this offence had been committed in Western Australia effectively invites the court to ignore the actual maximum penalty and treat the appellant as if the significantly lower penalty for the State offence applied. That contention has only to be stated to be seen to be wrong in principle.

45 The most significant factor in determining whether the sentence for this count was manifestly excessive is the seriousness of the circumstances. This offence involved a total of 181 images and 13 videos of varying levels of depravity. Whilst the number is not insignificant it is lower than in many cases involving the possession of child pornography. Further, the overwhelming majority of the items fell into the lowest category of the Oliver Scale. There was nothing to suggest that the appellant possessed the items for the purposes of sale or distribution.

46 An important mitigating factor was that this offence had come to light as a result of the appellant's voluntary disclosure to a counsellor in the Netherlands. Whilst it would appear that the counsellor then insisted that the matter be referred to the police, the appellant cooperated with the police by handing over the computer devices containing the child pornography. He must have been conscious that in doing so he was providing evidence that would implicate him in the commission of criminal offences. To some extent this cooperation is undermined by the fact that he departed the Netherlands three weeks later whilst police investigations were continuing.

47 An offender who confesses to a crime is generally to be treated more leniently than one who does not. That is not to say that all admissions of guilt have the same value. The disclosure to the authorities of otherwise unknown offences can have significant weight. One important feature of such a disclosure is that it may evidence a genuine acceptance of responsibility and contrition on the part of the offender. See AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 and Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267. Voluntary disclosure will usually attract a discount in addition to that which is appropriate for a plea of guilty. This principle has been applied in many cases in this State, including cases involving the disclosure of sexual offending. See LJP v The State of Western Australia [2010] WASCA 85 and KS v The State of Western Australia [2011] WASCA 85.

48 In the present case some credit was due to the appellant for having voluntarily disclosed that he was in possession of child pornography in the Netherlands and for cooperating with the police. However, the extent to which this was indicative of an acceptance of responsibility and remorse and of a desire to be rehabilitated is open to question. The appellant left the Netherlands before the police investigation was complete and without seeking further treatment. Nor did he seek treatment upon his arrival in Australia. Rather he continued to access and use child pornography and when ultimately arrested sought to minimise and justify that behaviour. Nonetheless, he readily admitted his offending and pleaded guilty when he was charged.

49 The sentence of 4 years 6 months imposed for this offence is a high one having regard to the nature and quantity of the material and the circumstances in which it was possessed. Given that the sentence imposed needed to incorporate appropriate reductions for the plea of guilty and the voluntary disclosure, the sentence is, in my view, manifestly excessive. It is a sentence that cannot be reconciled with an appropriate discount for those factors.

50 The maximum penalty for the offence of possessing child exploitation material contrary to s 220 of the Criminal Code (WA) is 7 years' imprisonment.

51 Section 220 of the Criminal Code (WA) forms part of ch XXV dealing with child exploitation material and which commenced operation on 28 August 2010. Section 220 replaced s 60(4) of the Classification (Publication of Films and Computer Games) Enforcement Act 1996 (WA). The maximum penalty for the former offence was 5 years' imprisonment. In his Second Reading Speech with respect to the Bill which made these changes, the Attorney General, the Hon C C Porter, emphasised that the changes were designed to make it 'absolutely clear that the production, the possession and dissemination of this material will not be tolerated': (Western Australia Parliamentary Debates, Legislative Assembly, 21 April 2010, page 1934 (Mr C C Porter, Attorney General)).

52 There have been few cases decided at appellate level with respect to sentences for offences under s 220 of the Criminal Code (WA). Those cases have involved offenders who have also committed contact sexual offences (KWLD v The State of Western Australia [No 4] [2013] WASCA 185; Do v The State of Western Australia [2013] WASCA 218) or involve an offender with extraordinary personal circumstances (Naysmith v The Queen [2013] WASCA 32).

53 There have been many cases in relation to the preceding offence of possession of child pornography contrary to s 60(4) of the Classification (Publication of Films and Computer Games) Enforcement Act 1996. Reference to those cases needs to be treated with caution bearing in mind the increase in the maximum penalty. An increase in penalty is an indication that the offence is to be viewed more seriously, with the consequential effect of increasing sentences: McLaughlin v The State of Western Australia [2012] WASCA 204 [59] - [61] (Buss JA).

54 Subject to the element of caution I have referred to, sentences imposed for the offence of possession of child pornography since 1997 have ranged from 8 months to 2 years' imprisonment: Smit v The State of Western Australia [2011] WASCA 124 [24]. See also The State of Western Australia v Cunningham [2008] WASCA 240; (2008) 190 A Crim R 430; Hill v The State of Western Australia [2009] WASCA 4 and Dartnall v The State of Western Australia [2012] WASCA 251.

55 The present offence involved a total of 6,596 images and 12 videos ranging on the Oliver Scale between level 1 and level 5. As with count 1, the majority of the images fell into the level 1 category. However, in terms of numbers alone there were more than 30 times more items than in respect of count 1. There were also more items falling into the more serious categories of levels 3 to 5 of the Oliver Scale.

56 There was little by way of mitigation in respect of this offence. It had not been voluntarily disclosed. Indeed, it had occurred in circumstances where, having been the subject of a criminal investigation in the Netherlands, the appellant must have been acutely aware of the criminality of his actions in downloading this material. The continuation of this activity in light of his past history tended to show that his sexual interest in children was entrenched.

57 Notwithstanding the lower maximum penalty than that applicable in respect of count 1, the factual circumstances of this offence was inherently more serious. The sentence of 2 years' imprisonment was clearly within the range of sound sentencing discretion.

58 The maximum penalty for the offence of using a carriage service to access child pornography contrary to s 474.19 of the Criminal Code (Cth) is 15 years. As noted earlier, the maximum penalty increased from 10 to 15 years on 15 April 2010. That increase limits the value of cases involving sentences imposed before the increase in the maximum penalty.

59 This offence involved a number of written stories that were downloaded from the internet. That is a significant factor in assessing the seriousness of the offending conduct. In Ponniah v The Queen [2011] WASCA 105 Mazza JA said:

The criminality involved in the material that does not depict real children is of a different nature to that involving real children: Dodge v The Queen [2002] WASCA 286; (2002) 134 A Crim R 435 [24]; and Hutchins v The State of Western Australia [2006] WASCA 258 [8]. This is not to say that material of this type is harmless; it has the tendency to 'normalise' exploitative sexual activity involving children and may stimulate a susceptible recipient to engage in sexual activity involving real children [38].

60 There is nothing to indicate that the risk referred to by Mazza JA had been realised in this case. The appellant, somewhat naively, believed that his deviant sexual urges would be satisfied rather than stimulated by reading the stories. He denied having any actual sexual contact with children and there was no evidence to the contrary. The fact that no actual children had been exploited in respect of these stories placed the offending in respect of count 3 into a lower category of seriousness than counts 1 or 2.

61 The appellant referred to a number of cases involving offences under s 474.19. It was accepted that Naysmith v The Queen was not of assistance because it turned on the fact that the appellant in that case had an intellectual disability such that personal and general deterrence were of lesser significance.

62 Colbourn v The Queen [2009] TASSC 108 involved an appellant who was convicted of one offence under s 474.19 and a second State offence of possession of child exploitation material. The quantity of material involved in that case exceeded 80,000 images. The appellant was sentenced to 2 years' imprisonment for the s 474.19 offence and 4 years' imprisonment for the possession offence. The sentences were made partly cumulative with the effect that the total effective sentence was 5½ years with a minimum of 3 years' imprisonment. An appeal was allowed and the sentences reduced to 12 months' imprisonment on count 1 and 21 months' imprisonment concurrent on count 2. The offences in that case were significantly more serious than count 3, however it should be noted that the sentence for the s 474.19 offence was imposed prior to the increase in the maximum penalty.

63 In Colbourn reference was made to first instance sentences imposed for similar offences in Victoria and Queensland. The sentencing judge in this case was also referred to a number of such sentences by the prosecution. First instance decisions may not be a reliable indicator of the appropriate discretionary range. Determining the appropriate range of sentences for a particular offence is the work of the intermediate appellate courts: Hili v The Queen. Furthermore, there is a danger that in referring to first instant decisions account may not be taken of the fact that those decisions may subsequently have been the subject of an appeal.

64 The respondent referred to other cases involving sentences for s 474.19 offences.

65 In R v Fulop [2009] VSCA 296; (2009) 236 FLR 376 the offender was found in possession of a total of 41,594 pictures and videos of child pornography, including of the most serious and degrading nature. He was charged with one count of possessing child pornography contrary to s 70 of the Crimes Act (Vic) and one count of using a carriage service to access child pornography contrary to s 474.19. He was initially sentenced to a total effective sentence of 4 years' imprisonment with a minimum term of 3 years. On appeal there were found to be errors in the manner in which the sentencing judge had sought to achieve accumulation. The sentences were also held to be manifestly excessive. The offender was re-sentenced to a total effective term of 2 years 6 months with a minimum term of 2 years.

66 In R v Mara [2009] QCA 208; (2009) 196 A Crim R 506 the offender was part of a highly sophisticated group with a common interest in child pornography. The offender was one of the core members who screened and tested potential new members. The group traded in a large quantity of child exploitation material, as well as purchasing and commissioning the production of such material. Highly sophisticated techniques were used to avoid detection. When arrested the offender had in excess of 75,000 image files of child pornography material and 800 movie/video files. It was also established that over a 4½ month period he had uploaded 116 video files for use by other group members. The offender cooperated with police and pleaded guilty to four charges (accessing child pornography, transmitting it and causing it to be transmitted to himself all contrary to s 474.19 and recording an indecent image of a child contrary to s 210 of the Criminal Code (Qld)). He was sentenced to a total effective sentence of 6 years' imprisonment to be released after 32 months on entering into a recognisance to be of good behaviour for three years. Leave to appeal against that sentence was refused.

67 In Director of Public Prosecutions (Cth) v D'Alessandro [2010] VSCA 60; (2010) 26 VR 477 the offender had used the internet to exchange in excess of 16,000 images with 44 people. Some of the images were described as involving extreme sexual acts with extremely young children and as being amongst the worst that the sentencing judge had seen. The offender was convicted of two offences of accessing images of child pornography or child abuse, two offences of transmitting such images and two offences of possessing the images. The appellant pleaded guilty and at first instance was sentenced to a total effective sentence of 2 years' imprisonment but was ordered to be immediately released on entering into a recognisance release order requiring him to be of good behaviour for a period of 3 years. A prosecution appeal against that sentence on the basis that it was manifestly inadequate was allowed. The offender was resentenced to a total effective sentence of 3 years' imprisonment to be released after 2 years on entering into a recognisance to be of good behaviour for 12 months.

68 In Melham v The Queen [2011] NSWCCA 121 the offender had accumulated over 45,000 images and 1,196 multimedia files over a period of 10 years. The images fell across the range of seriousness with the majority being at the lowest level. The offender cooperated with police and pleaded guilty at an early opportunity. He was found to be suffering from a mental illness. He was sentenced to a total effective sentence of 4 years and 3 months' imprisonment with a 3 year non-parole period for one offence of possessing child pornography contrary to s 91(2) of the Crimes Act (NSW) and one offence under s 474.19. An appeal against the sentence was dismissed.

69 In R v Davis [2012] QCA 324 the offender was found to have used a computer to access and collect nearly 50,000 images and 301 videos of child pornography over a period of nearly four years from 2005 to 2009. The material was described as being amongst the worst the sentencing judge had ever come across. The offender pleaded guilty, cooperated with authorities and had engaged in some treatment. There had been a delay of over two years between arrest and charging. The offender was sentenced to 4 years' imprisonment with a non-parole period of 16 months for an offence against s 474.19 and a concurrent sentence of 2½ years for one offence of possession of child exploitation material contrary to the Criminal Code (Qld). An appeal against those sentences by the offender was dismissed.

70 In Bayliss v The Queen [2013] VSCA 70 the offender used a peer-to-peer file-sharing programme which allowed users to upload, view and download content. He also engaged in on-line chat sessions in which he graphically described sexual conduct whilst simultaneously transmitting or receiving child pornography. The associated pornography could not be recovered for all such chat sessions. Between 1 June 2009 and 12 April 2010 there were 332 chats containing sexual explicit material. Over the same period 971 files containing images or videos were transmitted by the offender and 1,012 files received by him. Between 22 April 2010 and 6 June 2011 there were 228 texts, 528 images received and 642 files received. Some files were transmitted or received more than once. The offender also sought child pornography on 21 occasions and made child pornography available to others. Finally, the offender also accessed written narratives with a child pornography theme. Some of these details have been extracted from the sentencing reasons: DPP v Bayliss [2012] VCC 1369. The offender pleaded guilty to seven charges of using a carriage service contrary to s 474.19. He had been previously imprisoned for possession of child pornography in 2004. The offender received a total effective sentence of 3 years 6 months with a non-parole period of 2 years. An application to appeal against that sentence on grounds that included that it was manifestly excessive and infringed the totality principle was refused.

71 On any view, the offences in the other cases referred to were significantly more serious than count 3. Other than for some of the later offences in Mara and Bayliss, they were imposed at a time when the maximum penalty for the offence was lower. Nonetheless, they do indicate that the sentence imposed on count 3 was exceptionally high. When account is taken of the fact that the material involved was written stories and did not involve the exploitation of real children a sentence of 4 years' imprisonment is clearly manifestly excessive.

72 The total effective sentence was 5 years with a minimum of 4 years before being eligible for parole. The proportion between the minimum term that the appellant must serve before being eligible for release on parole and the maximum sentence is unusually high. This is partly a function of ordering that the State sentence commence whilst the federal sentences are being served.

73 In respect of State offences, an offender becomes eligible for parole after serving half of the sentence where the sentence is less than 4 years and an order for eligibility is made. Where the sentence is longer than 4 years eligibility arises at a time which is 2 years less than the sentence: s 93 Sentencing Act 1995 (WA).

74 In respect of Commonwealth offences there is no fixed minimum term and this must be set by the court. The minimum term must be of a severity appropriate in all the circumstances and be the minimum term that justice requires that the person serve: Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525; (1990) 92 ALR 552. It was formerly generally considered appropriate for the minimum term for Commonwealth sentences to be approximately 60 to 66% of the head sentence. However, in Hili v The Queen the High Court made it clear that there was no assumed starting point.

75 In this case some accumulation of the sentences was appropriate to reflect that each count related to different material and that count 1 had occurred at a different time and place to the other counts. However, as I have earlier noted, counts 1 and 3 involved offending that was significantly less serious than the sentences imposed would indicate. Whilst clearly sentences of imprisonment to be served were appropriate, the total effective sentence was disproportionate to the total offending. The total sentence in this case exceeds the sentences imposed in Davis, Melham, Bayliss, Fulop and D'Alessandro notwithstanding that the total offending in those cases was significantly more serious.

76 For the above reasons I would allow the appeal, set aside the sentences imposed by the sentencing judge and resentence the appellant. In my view, the sentence of 2 years' imprisonment on count 2 was appropriate, however I would order that that sentence be served first. I would resentence the appellant on count 1 to 2 years' imprisonment and on count 3 to 16 months' imprisonment. I would order that each of counts 1 and 3 commence on the day on which the appellant became eligible for parole on count 2 being 2 May 2013. In respect of counts 1 and 3 there should be a single recognisance release order pursuant to s 19AC of the Crimes Act that requires the appellant to serve 12 months before being released.

77 Pursuant to s 41(3) of the Criminal Appeals Act 2004 (WA) there should be an order that those sentences are taken to have taken effect on the day on which the appellant was originally sentenced, 25 October 2012, and the sentence on count 2 is backdated to commence on 2 May 2012. To the extent that the appellant has been resentenced on count 2 and s 9AA of the Sentencing Act 1995 (WA) is applicable, I note that that sentence incorporates a discount of 25% for the appellant's plea of guilty. The total effective sentence is 3 years' imprisonment with a minimum term of 2 years.

(2) sentences imposed in the District Court be set aside; and

Count 2 - 2 years' imprisonment, eligible for parole, backdated to 2 May 2012;

Count 1 - 2 years' imprisonment to commence on the day on which the appellant became eligible for parole on count 2 being 2 May 2013;

Count 3 - 16 months' imprisonment to commence on the day on which the appellant became eligible for parole on count 2 being 2 May 2013.

The appellant be released after serving 12 months of the sentences the subject of counts 1 and 3 on entering into a recognisance in the sum of $10,000 to be of good behaviour for 12 months.