Henderson v The King [2024] ACTCA 3

Cases Cited: Barbaro v The Queen [2014] HCA 2; 253 CLR 58 Betts v The Queen [2016] HCA 25; 258 CLR 420 Brierley v R [2022] NSWCCA 26 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Director of Public Prosecutions (Cth) v D’Alessandro [2010] VSCA 60; 26 VR 477 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 R v Burch [2020] ACTSC 192 R v De Simoni [1981] HCA 31; 147 CLR 383 R v Hagen [2022] ACTSC 362; 374 FLR 260 R v Hutchinson [2018] NSWCCA 152 R v Lian [2023] SASCA 122 R v MJ [2023] NSWCCA 306 R v Nguyen [2006] VSCA 184 R v Porte [2015] NSWCCA 174; 252 A Crim R 277 R v Verdins [2007] VSCA 102; 16 VR 240 The Queen v Ruwhiu [2023] ACTCA 18 Xiao v R [2018] NSWCCA 4; 96 NSWLR 1 York v The Queen [2005] HCA 60; 225 CLR 466 Texts Cited: Explanatory Memorandum, Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019 (Cth) Parties: Peter Henderson (Appellant) Commonwealth Director of Public Prosecutions (Respondent) Representation: Counsel E Chen (Appellant) K Breckweg (Respondent) Solicitors ACT Legal Aid (Appellant) Commonwealth Director of Public Prosecutions File Number: ACTCA 17 of 2023 Decision under appeal: Court/Tribunal: ACT Supreme Court Before: Norrish AJ Date of Decision: 11 May 2023 Case Title: R v Henderson Citation: [2023] ACTSC 110 THE COURT: Introduction

1. On 11 May 2023, the appellant was convicted and sentenced by Norrish AJ (the sentencing judge) of the following two offences: (a) Count 1 – On 2 April 2022, using a carriage service to possess child abuse material contrary to s 474.22A(1) of the Criminal Code 1995 (Cth) (CC2022/3204). Imprisonment for 1 year and 10 months, with the offender to be released after four months’ imprisonment on entering a recognisance release order in the sum of $500 to be of good behaviour for two years with further conditions. (b) Count 2 – between about 7 October 2021 and 31 March 2022, using a carriage service to transmit child abuse material contrary to s 474.22(1) of the Criminal Code 1995 (CC2022/3202). Imprisonment for 11 months, with the offender to be released after 10 months on entering a recognisance release order in the sum of $500 to be of good behaviour for two years with further conditions. See R v Henderson [2023] ACTSC 110.

2. The total effective sentence imposed by the sentencing judge was imprisonment for 1 2 years and 4 months, commencing on 9 May 2023 and expiring on 8 September 2025. The order rendered the appellant eligible for release on a recognisance on 8 March 2024.

3. By an Amended Notice of Appeal filed on 25 May 2023, the appellant appeals against the sentences imposed for each count on the following grounds: (a) The sentencing judge erred in finding that “exceptional circumstances” must exist before an Intensive Corrections Order (ICO) could be imposed in respect of both offences; and (b) In respect of the offence of possessing child abuse material (CC2022/3204), the sentencing judge erred by sentencing the appellant on the basis that he possessed the child abuse material for more than one day.

4. The Commonwealth Director of Public Prosecutions (“the Director”) concedes that both errors are established. We accept that both concessions were correctly made. We have

1 The published judgment incorrectly states that the sentence for Count 1 expires on 8 September 2024. The Court order correctly records the sentence for Count 1 as expiring on 8 September 2025. resentenced the appellant upon the finding of error. On resentence, we have imposed the same head sentences that were imposed by the sentencing judge. However, we have reduced the period that the appellant must serve before he may be released on a recognisance. The appellant will now be eligible for release after 9 months and 14 days, on 21 February 2024, on a recognisance with $500 surety and a 2 year good behaviour bond.

Background

The offences

5. The appellant met the co-accused on an online dating application in 2020. On 7 October 2021, the appellant and the co-accused began communicating via the messaging app “WhatsApp”.

6. Between 7 October 2021 and 31 March 2022, the appellant transmitted 68 files of child abuse material to the co-accused via WhatsApp. The appellant and the co-accused also had conversations in which they exchanged text-based child abuse material, including discussions about having a child for the purpose of sexual abuse. This conduct forms the basis of Count 2, transmission of child abuse material (CC2022/3202).

7. On 1 April 2022, the co-accused notified police that she was in possession of child abuse material. When police attended the co-accused’s residence, they located child abuse material on her phone. She informed police that she had obtained the material from the appellant.

8. On 2 April 2022, police attended the appellant’s home. In the execution of a search warrant, police seized the appellant’s mobile phone, laptop and external hard drive. The appellant admitted under caution to possessing and transmitting child abuse material.

9. Police located more than 1,715 files of child abuse material on the appellant’s mobile phone, laptop and external hard drive. This forms the basis of Count 1, possession of child abuse material (CC2022/3204).

10. The files identified by police included 397 videos and 1,067 images classed as Category 1 material under the Australian Child Abuse Categorisation Schema (ACACS). Category 1 material is defined as material depicting a real prepubescent child perceived to be under 13 years of age, involved in a sex act, witnessing a sex act, or with a focus on the anal or genital region of the child. The files also included 27 videos and 224 images classed as Category 2 under ACACS, which refers to other child abuse material that is illegal within Australia but does not fit Category 1. This may include images where a child is subjected to sadism, torture, bestiality or humiliation; material where the child is conducting the activity; and animated images, text of children or photoshopped media.

11. Over 1,000 individual child victims were depicted in the material. These victims were largely between one and 10 years of age. The files included “highly depraved material depicting the penetrative rape and torture of very young children”.

The decision below

12. The appellant pleaded guilty to both counts on 26 May 2022. On 11 May 2023, the sentencing judge sentenced the appellant for the offences.

13. In the reasons for sentence, the sentencing judge commenced by summarising the offences and the evidence of the subjective circumstances of the offender.

14. In assessing the objective seriousness of the offending, the sentencing judge took into account that there were fewer files in the present case than in some comparable cases, along with “the lack of commerciality”, relative unsophistication, and “the absence of the risk of acquisition to vulnerable people”: Henderson at [87] – [88]. However, his Honour also noted the number of victims and the “character of the material”, some of which was “so horrific that standing by itself it represents an extreme example of child abuse material”. Whilst acknowledging the seriousness of all offences of this nature, his Honour concluded that the objective seriousness of the offending was “not at the high or higher end”: Henderson at [63] – [64] and [79] – [88].

15. His Honour accepted the Crown’s submission that “[the appellant’s] sexual gratification, even indirectly, from child abuse material increases the importance of specific deterrence”, particularly in light of the “furtive” character of the offending: Henderson at [95], [117]. His Honour also emphasised the particular need for general deterrence, given the “heinous”, “callous and predatory” nature of this form of offending, and the need to protect children from the exploitation and abuse inherent in the production and distribution of this material: Henderson at [88] – [89], [94] – [95], [110] – [114]). His Honour concluded that the offending required “immediate imprisonment to give proper weight to general deterrence and personal deterrence”: Henderson at [88].

16. The sentencing judge was circumspect about the evidence given by the appellant and the psychologist that the appellant was “emotionally detached” from the sexual abuse material and found it “disgusting”, and that he engaged with it only for the purpose of establishing relationships with a prior partner and the co-accused: (see Henderson at [24] – [28], [40] – [41]). His Honour considered that this evidence represented an “over-simplification and downplaying of [the appellant’s] own criminality”: Henderson at [42]. In this respect, his Honour also noted that the appellant’s claims that he did not obtain sexual gratification from the material were contradicted by the appellant’s retention of the material for multiple years after the cessation of one of those relationships, his willingness to transmit the material to the co-accused, and the messages with the co-accused which “reveal[ed] …an interest and an enthusiasm for the material”: Henderson at [24] – [28], [40] –[42], [56], [67], [83] – [87] and [94] – [98]. In any event, his Honour emphasised that the possession and transmission of such material in order to develop sexual relationships with adults “does not make the offending less serious” as it is “another aspect … of the sexual exploitation of children by the use of child abuse material”: Henderson at [26] – [27].

17. The sentencing judge noted that the offender’s apparent minimisation of his offending may be such as to reduce his prospects of effective rehabilitation. His Honour considered that this “militates in favour of an extended period of supervision to provide effective counselling”, if possible: Henderson at [98].

18. The sentencing judge referred to evidence in relation to the hospitalisation of the appellant on 24 April 2023, including correspondence with a friend of the appellant and a “discharge summary” from the hospital, which established that the appellant had an overdose due to the consumption of Diazepam combined with alcohol: Henderson at [51].

19. In this respect, the sentencing judge noted that the psychologist’s report diagnosed the appellant as having symptoms consistent with post-traumatic stress disorder (PTSD) and major depressive disorder with recurrent moderate symptoms and anxiety. The sentencing judge accepted that the evidence (including the pre-sentence reports, the appellant’s oral evidence, the psychologist’s report and the evidence of the appellant’s hospitalisation) established that the appellant’s mental health and risk of self-harm were relevant in determining the sentence to be imposed in the offender: Henderson at [52] – [54]. However, his Honour considered that the material could not “[deter] the Court from continuing to give weight” to the various sentencing factors which “ultimately [require] the imposition of a full term of imprisonment”: Henderson at [55]; see also at [115].

20. The sentencing judge took into account the appellant’s good character: Henderson at [90] and [114]. His Honour further acknowledged the protective factors in the appellant’s adult life, which included an absence of prior convictions, his avoidance of alcohol and drugs, and relatively consistent employment: Henderson at [17] – [18], [57], [71]. However, his Honour expressed reservations about the appellant’s references and the consistency of the opinions expressed within them with the agreed facts of the offending: Henderson at [29] – [34].

21. The sentencing judge noted evidence contained in the PSRs and the psychologist’s report that until the age of 13, the appellant experienced a disadvantaged background including physical abuse from his mother and stepfather, whereupon he was taken in by a local foster family and had subsequently enjoyed a relatively stable life: Henderson at [16] and [23] – [24]. However, his Honour did not accept that this background reduced his moral culpability or engaged the principles set out in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [43] – [44]. His Honour held, “there is no evidence … that his development or his treatment as a child has in any way contributed to his offending” and that “in any event, he admits his moral responsibility …. and admits to an awareness of the immorality … at the time of the offending”: Henderson at [68], [74] – [76] and [91].

22. Nonetheless, his Honour accepted that the offender’s mental health was relevant to “the kind of sentence that will be imposed, and conditions which should be served”, the “manner in which he will serve his sentence”, “the potential impact upon his mental health”, and had “a slightly moderating effect” upon the need for general deterrence: Henderson at [92], citing R v Verdins [2007] VSCA 102; 16 VR 240 at [32].

23. His Honour had addressed the totality of the sentences (in respect of which he acknowledged that a “degree of concurrency” was required, but the sentences could not be “wholly” concurrent), the offender’s guilty plea, and a range of comparative cases: Henderson at [71], [73], [99] – 109].

24. After weighing these considerations, in relation to Count 1, possessing child abuse material, his Honour imposed a sentence of imprisonment for 1 year and 10 months (discounted by 8 months due to the appellant’s guilty plea), with the appellant to be released after 4 months imprisonment on entering a recognisance release order, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth). In relation to Count 2, transmitting child abuse material, his Honour imposed a sentence of imprisonment for 11 months (discounted by 4 months due to the appellant’s guilty plea), with the appellant to be released after 10 months on entering a recognisance release order. The sentences were accumulated by 6 months.

25. The recognisance release order permitted the appellant’s release with security of $500, without surety, on the condition that he be of good behaviour for a period of two years from that date and appear to receive sentence if called upon to do so at anytime in respect of any breach. The sentencing judge also imposed conditions requiring the appellant to accept the supervision and guidance of ACT Corrective Services and obey all reasonable directions, particularly as to counselling or rehabilitation programs to prevent sexual offending; and prohibited the appellant from travelling interstate beyond NSW or overseas without written permission.

26. The sentencing judge also recommended the medical examination of the appellant upon his reception by ACT Corrections due to his risk of self-harm.

27. On the application of the Commonwealth Director of Public Prosecutions, and with the consent of the appellant, his Honour ordered that pursuant to s 232ZD of the Crimes Act, a hard drive, a mobile phone and a laptop were to be forfeited to the Commonwealth.

Determination

The first ground of appeal

28. The appellant’s counsel at first instance invited the sentencing judge to impose an ICO. The sentencing judge rejected this submission, holding as follows: 73. … Ultimately it was submitted that I should impose a sentence that required the offender to serve his term of imprisonment by Intensive Correction Order in the context of what Commonwealth legislation might otherwise refer to as 'exceptional circumstances'. 74. There are a number of circumstances that are to the benefit of the offender's position but the combination of circumstances I am required to consider including the character of the offending is not, in my view, 'exceptional'. Amongst other things, by reference to the authorities cited by both the Crown and the offender, I do not see the degree of insight in this offender such as to permit a conclusion of exceptionalism to which is referred in the submissions of the defence. Most importantly, it seems to me, that any claim of exceptional circumstances must fail by the consideration of the fact that by his own admission and by any objective analysis of the matter the offender's moral culpability is not, in any way, diminished by his mental conditions given the lack of causal relationship. Henderson at [73] – [74], emphasis added.

29. The appellant contends that the sentencing judge erred in finding that “exceptional circumstances” are required before the appellant could be sentenced to an ICO in respect of either offence.

30. The Crown conceded that the sentencing judge erred in so finding. This concession was properly made.

31. Section 20(1)(b) of the Crimes Act 1914 (Cth) provides that if a Court sentences a person convicted of a “Commonwealth child sex offence” to a term of imprisonment, the Court cannot order that the offender be “released” immediately on entering into a recognisance release order (that is, a wholly suspended sentence of imprisonment) unless the Court is satisfied that there are “exceptional circumstances”.

32. However, s 20(1)(b) of the Crimes Act is only addressed to release under recognisance after the imposition of a sentence of full-time imprisonment. This requirement does not apply where an alternative to full-time imprisonment is imposed, such as an ICO. In the Australian Capital Territory, a federal offender may be sentenced to an ICO pursuant to s 20AB of the Crimes Act, which picks up and applies s 11 of the Crimes (Sentencing) Act 2005 (ACT). Unlike s 20, s 20AB of the Crimes Act does not require that exceptional circumstances be demonstrated before an ICO may be imposed.

33. Accordingly, we find ground 1 established.

The second ground of appeal

34. The sentencing judge made the following findings concerning the duration of the offending (at [65] – [66]): 65․ Another submission made by the accused was that the possession of the material related only to “one day”. The counsel for the accused relied upon a decision of R v Burch [2020] ACTSC 192, particularly at [33]-[35]. This particular submission of the accused’s counsel cannot be accepted. Whilst the offender is charged with possession on the day of his arrest, his own admissions establish his possession of this child abuse material for over two years before that date. 66․ That is no offence of De Simoni principles (see R v De Simoni (1981) 147 CLR 383) as they are sometimes described, to sentence the offender on that basis. He is not being sentenced for a more serious of different offence than the current charge. He is being sentenced because on 2 April 2022 he was in possession of child abuse material that he had been in possession of for an extended period of time beforehand. Burch was an entirely different case where the facts revealed, when one read the judgment, that he was sentenced for his possession of only five files, as they were the only files that could be retrieved on the day of his arrest .Because of damage done to the hard drive in the examination of the material by the investigators and, in the absence of other evidence, there was nothing that could be done by Murrell CJ other than to be satisfied that the offender had possession of those files on the day of his arrest.

35. The appellant contends that the sentencing judge erred in sentencing the appellant on the basis that he possessed the child abuse material for more than one day. The respondent conceded that his Honour erred in so finding. Again, this concession was properly made.

36. In Brierley v R [2022] NSWCCA 26 at [17] – [19], the New South Wales Court of Criminal Appeal accepted that it would have been an error for a sentencing judge to use the fact that the offender had possessed drugs for a longer duration than that which was charged on the indictment as a “circumstance of aggravation” in assessing the seriousness of the offence. However, the Court explained that evidence of possession of a longer duration than that charged could be reasonably be used to negate any claimed reduction in the objective seriousness of the offence on the basis of the limited duration of the charged offending. The Court in Brierley concluded that on a proper construction of the sentencing judge’s reasons, the sentencing judge had not in fact taken into account possession of a longer duration as a circumstance of aggravation. In summary, as counsel for the Crown in the present appeal correctly submitted, This does not mean that a Court cannot take into account any admitted possession of material for a longer period than charged to rebut any suggestion that the offending was isolated, but it cannot be used to extend the period of the charge or in any way to aggravate it.

37. In the present case, it is clear that the sentencing judge did not merely take evidence that the accused had had the material in his possession for a longer period than that charged as rebutting the defence submission that the offence was mitigated because it was for “one day”. Rather, his Honour’s distinguishing of R v Burch [2020] ACTSC 192 and R v De Simoni [1981] HCA 31; 147 CLR 383 confirms that the longer duration was used as a circumstance of aggravation rather than mitigation.

38. This ground of appeal must also be allowed.

Resentencing

39. The two grounds of appeal that have been established materially affected the exercise of the sentencing judge’s discretion. Accordingly, it is necessary for this Court to resentence the appellant: Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [42].

The further evidence

40. On resentence, the appellant adduced affidavit, oral and CCTV evidence of incidents which have occurred in custody since his imprisonment involving a series of confrontations with another inmate. The respondent also adduced affidavit and oral evidence in relation to these incidents from Ms Jenny West, Operations Manager for Security at the AMC.

41. The appellant gave evidence that the other inmate has made “constant threats” directed at the appellant, his dog, and his housemate, including reciting the appellant’s residential address. On 23 July 2023, the other inmate had a verbal exchange with the appellant before grabbing him. The appellant did not report this event, explaining that the other inmate subsequently threatened him to deter him from reporting.

42. On 22 August 2023, the other inmate assaulted the appellant, striking him in the head twice, and was subject to disciplinary action as a result. On 2 October 2023, the other inmate followed the appellant into the laundry (which is not covered by CCTV cameras) and pushed him. The appellant stated that the other inmate threatened him with violence.

43. The appellant explained that the other inmate is confrontational towards all inmates. He does not believe that the other inmate’s behaviour relates to the nature of the offences for which he is serving a term of imprisonment.

44. The appellant reported these incidents to prison authorities. Following the failure of attempted mediation between the inmates, a regime was imposed which confined the appellant and the other inmate to their cells for opposite halves of each day. That regime ended on 13 October 2023. The appellant confirmed in cross-examination that there have been no physical incidents since the regime ended, though he said that the inmate had made “passive-aggressive remarks” to him after this time.

45. Ms West gave evidence that she had been informed that the regime was ceased after consultation and agreement by both the appellant and the other inmate. The appellant denied agreeing to the cessation of the regime. Ms West confirmed in oral evidence that the appellant could request at any time that correctional staff review the available options for his safety, including whether to re-implement the regime.

46. The appellant said that he has asked to be moved out of the accommodation unit, but that this request “wasn’t really taken very seriously”. Ms West confirmed that alternative accommodation arrangements for the appellant would have been “fairly limited”.

47. The appellant also advised that he has been unable to access certain counselling and courses as a result of having appealed his sentence and the timing of course availability.

48. In her written submissions, counsel for the respondent initially submitted that this evidence should not be admitted, because it was not fresh evidence that shed “significant new light on the pre-existing facts”: R v Nguyen [2006] VSCA 184 at [37]. However, at the oral hearing of the appeal, the respondent’s counsel accepted that this evidence should be admitted. As the evidence concerns relevant matters that have occurred after the imposition of sentence, the further evidence is properly admissible on resentence: see Betts v the Queen [2016] HCA 25; 258 CLR 420. The weight to be given to this evidence is addressed at paragraphs [59]-[68] below.

Determination

49. Exercising our sentencing discretion afresh, we have taken into account the following matters: (i) The maximum penalty for each offence is 15 years’ imprisonment. As counsel for the respondent submitted, this maximum reflects the gravity with which Parliament views offences of this nature. (ii) Count 1 related to 68 files containing child abuse material as well as text-based child abuse material that was sent by WhatsApp (an encrypted communications app) from the appellant to his then partner. The written communications were particularly depraved and included discussions about the rape of children and having a child so that the appellant and his partner could sexually abuse her. (iii) Count 2 encompassed the possession of a very large number (1,715) child abuse files over three separate devices. Those files were of highly depraved material, including acts of fellatio by or on children as young as four or five years of age; penetration of the orifices of such children; bestiality; urination; the vaginal rape of a child no older than a three year old, who was gagged and crying; and the torture of a child no older than two years, who was suspended upside down for more than nine minutes, who was struck with fists, burnt with a cigarette lighter and who had her face pushed into the vaginal region of an adult female. There were over 1,000 individual child victims featured in the material, between one and 10 years of age.

50. Like the sentencing judge, we have considerable doubts about the evidence of the appellant and his psychologist that the offences were not motivated by a desire to obtain sexual gratification. However, we do not consider it necessary to determine whether the appellant obtained sexual gratification from the offences, or whether the offences were only committed out of a desire to please his partner. Neither of these motives is any less objectively serious than the other. Regardless of the appellant’s motive, these offences occasioned serious harm to many victims, all of whom were very young. As courts have repeatedly emphasised, “possession of child pornography is not a victimless crime”: R v Porte [2015] NSWCCA 174; 252 A Crim R 277 at [67] – [70]. The possession of such material “creates a market for the continued corruption and exploitation of children”: Porte at [67]. As Harper JA (Redlich JA and Williams AJA agreeing) noted in Director of Public Prosecutions (Cth) v D’Alessandro [2010] VSCA 60; 26 VR 477 at [19]: [O]ne can with even more difficulty attempt to imagine how destructive must have been the experience of those children forced to suffer the agony of “being abused in a most profound and abhorrent way”. At the same time, it is a notorious fact that such abuse can, and often does, cause irreparable and very severe psychological and psychiatric harm.

51. In resentencing the appellant, we have taken into account the fact that Count 2 was charged as only occurring on a single day. We have not taken duration of the possession into account as an aggravating factor. But nor is it a mitigating factor. The appellant’s offending was not isolated in nature. In the present case, the number of files, their content, the number of devices on which they were stored and the number of victims are of more significance to the assessment of the gravity of the offending than the duration of the offending.

52. As the two offences are “Commonwealth child sex offences”, the Court is required to have regard to the objective of rehabilitating the appellant: s 16A(2AAA) of the Crimes Act. We accept that the appellant has positive prospects of rehabilitation, noting that the appellant made admissions that demonstrated his contrition, and that he had a positive social and employment history. We have also taken into account the appellant’s prior good character in assessing his prospects of rehabilitation. However, the appellant’s prior good character does not mitigate the seriousness of the offending.

53. There was no challenge to the sentencing judge’s application of a 25% discount to the sentences to be imposed in recognition of the utilitarian discount of the plea: Henderson at [96]. We have likewise afforded this discount to the sentences imposed: Xiao v R [2018] NSWCCA 4; 96 NSWLR 1 at [278].

54. The unchallenged evidence before the sentencing judge was that the appellant has symptoms consistent with post-traumatic stress disorder (PTSD) and major depressive disorder (depression): Henderson at [36]. In assessing the sentence to be imposed, the weight to be given to general deterrence should be slightly moderated in view of this evidence: Verdins at [32(3)]. The weight to be given to the need for punishment and denunciation should also be moderated to some extent, particularly in view of the evidence that the appellant’s mental condition may render custody more onerous, and that custody may potentially impact upon the appellant’s mental health: Verdins at [32(1)], [32(5)] and [32(6)].

55. There was also unchallenged evidence before the sentencing judge that the appellant had experienced violence as a young child at the hands of his mother and stepfather: Henderson at [23]. As noted above, the sentencing judge did not appear to take this evidence into account as mitigating the appellant’s moral culpability, on the basis that the appellant’s background did not have a causal relationship with the offending: Henderson at [75] and [91].

56. This Court has since held that a strict causal connection between an offender’s background and the offending is not required: see The Queen v Ruwhiu [2023] ACTCA 18 at [126], per Baker J, with whom Rangiah J agreed. Rather, … an offender will be less morally blameworthy for an offence where their disadvantaged background in some way ‘explains’, is connected with, or otherwise sheds light on the offending. Ruwhiu at [126], citing R v Hagen [2022] ACTSC 362; 374 FLR 260 at [42] – [43]; see also R v MJ [2023] NSWCCA 306 at [15], per Simpson AJA.

57. However, in the present case, the offender’s background is linked to his offending via his mental illness, in that the offender’s childhood abuse gave rise to his mental illnesses (PTSD and depression), and it is these mental illnesses which are said to provide some explanation for his offending.

58. As outlined above, we have mitigated the weight to be given to general deterrence and punishment as a result of the appellant’s mental illness. In those circumstances, there is no justification for a further reduction of the weight to be given to these matters by reason of the appellant’s background of childhood abuse.

59. As outlined above, at the hearing of this appeal, the Court received evidence concerning violence which the appellant has been subject to whilst in custody. The relevance of hardship in custody was recently considered by the South Australian Court of Appeal in R v Lian [2023] SASCA 122 (Kourakis CJ, Lovell and Doyle JJA).

60. After surveying authorities of the High Court (York v The Queen [2005] HCA 60; 225 CLR 466), South Australian courts, and interstate appellate decisions, Kourakis CJ concluded as follows (at [70]): It can be accepted that the conditions in which an offender will serve a sentence of imprisonment, and the possible consequences on the prisoner serving that sentence, are always a relevant consideration in the sense that an evaluation of those matters may reveal a good reason to mitigate the sentence that would otherwise be imposed. However, whether or not those conditions or consequences will, after a proper evaluation, mitigate the sentence does not have a simple answer.

61. His Honour held that where hardship arose from the fact that an offender was an informer, or because of the harsher effect of custody on the offender by reason of their physical or psychological infirmities, “the answer given by the authorities is clearly yes”, whereas where the hardship arises as “an inherent result of the management of prison security by the executive arm of government”, the answer is “generally, no”: Lian at [71].

62. The Chief Justice acknowledged that “many interstate authorities have generally taken a different approach” (that is, taking into account hardship in custody regardless of its source). However, his Honour observed that such an approach “does not appear to have been contested and its problematic application has not been considered”: Lian at [72]. Specifically, his Honour explained (at [74] – [75]): … the often reported and, importantly, authoritatively stated, principle, that the protection of prisoners is a matter for the executive government, and, in particular, the Department of Corrective Services, is not an empty mantra. It is a fundamental principle of sentencing, delineating the respective limits of the responsibilities of the judicial and executive arms of government… If the courts were to regularly reduce sentences, other than in the recognised categories, for the possibility that prison authorities might fail in their duty, or that criminal acts might still be committed by other prisoners even though the authorities have done all that it is reasonably practicable to do, then the balancing of the competing sentencing criteria would be distorted. General deterrence and the protection of the public from recidivist behaviour would be compromised.

63. The Chief Justice concluded (at 77]): Responsibility for the protection of the human dignity of prisoners must rest with the executive government which is ultimately accountable to the public. I acknowledge the imperfect nature of that accountability in our system of responsible government. Nonetheless, the public expects that each arm of government will hold to its proper role. The judiciary has no mandate to modify, and possibly distort the exercise of its sentencing powers, by taking into account the difficulties encountered in protecting prisoners which it is the responsibility of the executive to manage.

64. In a concurring judgment, Doyle JA (with whom Lovell JA relevantly agreed) adopted an approach which “may be taken to suggest a more general acceptance of [the relevance of hardship in custody] as a sentencing consideration. In particular, his Honour explained (at [146]): … the severity or harshness of the consequences of a proposed sanction for an offender is relevant to a consideration of the capacity for that sanction to achieve the various sentencing objectives in respect of that offender. It may affect, for example, the capacity for a proposed sanction to inflict punishment, to effect personal deterrence and to facilitate rehabilitation. As such, it is relevant to a determination of whether a period of immediate imprisonment is appropriate and, if so, the length of that term of imprisonment.

65. In other words, unlike Kourakis CJ, Doyle JA did not limit the circumstances in which hardship in custody may be taken into account to cases of informers and those with physical or psychological infirmities.

66. Nonetheless, Doyle JA emphasised that there “must be some material, indeed, significant difference between the conditions of risk, and consequential hardship, likely to be faced by the offender and the conditions or risks experienced by other prisoners” (at [158]). His Honour noted that there will be different conditions faced by different prisoners, that different prisoners will differ in their capacity to cope with conditions, and that different prisons will differ in available facilities. Like Kourakis CJ, Doyle JA considered that “by and large, these matters are to be left to the executive”. However, his Honour acknowledged that there remain some cases where an offender will experience “significantly greater hardship than other prisoners” (at [159]), and that in such a case, it is appropriate for the court to make a “general assessment” of the extent of the risks faced by the offender (at [159]).

67. We prefer the approach of Doyle JA in Lian, particularly when considering the sentencing of a federal offender. Whilst an offender’s hardship in custody is not expressly recognised in s 16A of the Crimes Act 1914 (Cth), that provision requires the Court to take into account “the need to ensure that the person is adequately punished for the offence” (s 16A(2)(k)), the deterrent effect that the sentence or order may have on the person or other persons (ss 16A(2)(j) and 16A(2)(ja)) and the objective of rehabilitation (s 16A(2)(m) and 16A(2AAA)). As explained by Doyle JA, evidence of significant hardship in custody may have the capacity to affect each of these sentencing purposes. Accordingly, in our view, hardship in custody is a consideration that should be taken into account by the Court in determining the sentence to be imposed, although the extent of the hardship and the reason for the hardship will be relevant to the weight to be given to that evidence.

68. In the present case, the hardship experienced by the appellant was not significantly different to that experienced by other offenders who are sentenced to a period of imprisonment. The regime implemented by Corrective Services, which can be renewed by the appellant, will protect the appellant from the other inmate, but still permits the appellant time out of his cell. Whilst we have taken this evidence into account in determining the appropriate sentence to be imposed, we do not consider that the evidence of the appellant’s experience of custody is such as to lessen the weight to be given to the need for punishment or deterrence.

69. Taking into account all of the matters outlined above, we have concluded that the total sentences imposed by the sentencing judge for the two offences represent the minimum sentences that are appropriate in view of the nature of the offending and the circumstances of the offender. However, we consider that the appellant should be released on a recognisance order after 9 and a half months’ imprisonment. A single recognisance release order will be made for both sentences: see R v Hutchinson [2018] NSWCCA 152 at [65].

70. The appellant served three days in pre-sentence custody, but the sentence was only backdated to take account of two. The appellant should receive the benefit of this extra day of custody. The sentence will be backdated to include this additional day.

An additional matter

71. In her written submissions on the appeal, the Crown submitted that, in view of the seriousness of the offending, this Court should impose no lesser sentence than that which was imposed by the sentencing judge at first instance. In his written submissions in reply, the appellant’s counsel criticised the propriety of this submission, referring to the decision in Barbaro v The Queen [2014] HCA 2; 253 CLR 58.

72. We have not entirely accepted the Crown’s submissions, and have determined to resentence the appellant to a lesser sentence in respect of the minimum term to be served. However, we wish to make clear that it was appropriate for the Crown to assist this Court in the manner that it did. The prohibition enunciated in Barbaro relates to prosecution submissions concerning the “available range” of penalties that a sentencing judge should impose at first instance: Barbaro at [29] and [39]. It does not preclude a prosecutor from making a submission that, on resentence, no lesser sentence than that imposed at first instance should be imposed. Orders

73. For the above reasons the following orders are made: (1) Leave to appeal is granted. (2) The appeal is allowed. (3) The appellant is resentenced as follows: (a) For the offence of using a carriage service to possess child abuse material contrary to s 474.22A(1) of the Criminal Code 1995 (Cth) (CC2022/3204), the appellant is convicted and sentenced to a term of imprisonment of 1 year and 10 months to commence on 8 November 2023 and expire on 7 September 2025. (b) For the offence of using a carriage service to transmit child abuse material contrary to s 474.22(1) of the Criminal Code 1995 (Cth) (CC2022/3202), the appellant is convicted and sentenced to a term of imprisonment of 11 months to commence on 8 May 2023 and expire on 7 April 2024. (c) The appellant is to be released on 21 February 2024 (that is, 9 and a half months after the commencement of the sentence imposed for CC2022/3202), upon his entering into a recognisance, with the payment of security of $500, without surety, to be of good behaviour for a period of two years from that date and to appear and receive sentence if so called upon at any time in respect of any breach within the relevant period. (d) Pursuant to s 20(IB) of the Crimes Act 1914 (Cth), the conditions of the recognisance will be that the appellant: (i) Accept the supervision of a probation officer appointed by the Commissioner of ACT Corrective Services or their delegate; (ii) Obey all reasonable directions of the probation officer; (iii) Not travel interstate or overseas without the written permission of his probation officer; and (iv) Undertake such treatment and rehabilitation programs as the probation officer reasonably directs.

I certify that the preceding seventy three [73] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: