Holliday v R [2013] ACTCA 31

Court of Appeal (ACT)|2013-07-31|Before: Penfold J, Higgins CJ, Dowsett JJ

• On count 2 on the indictment dated 18 November 2009 referring to SCC 73 of 2009, commit an act of indecency/under 16 years, 2 years imprisonment and a conviction recorded.

• On count 3 on the indictment dated 18 November 2009 referring to SCC 73 of 2009, intentionally possessing child pornography, 18 months imprisonment, cumulative with the above as to 6 months and a conviction recorded.

• On count 5 on the indictment dated 18 November 2009 referring to SCC 73 of 2009, dishonestly appropriating property, a conviction is recorded.

• On count 3 on indictment dated 18 November 2009 referring to SCC 341 of 2009, engage in sexual intercourse with a person above 10 years under the age of 16, 4 years imprisonment, cumulative with the above as to two years, and a conviction is recorded.

• On count 4 on indictment dated 18 November 2009 referring to SCC 341 of 2009 , engage in sexual intercourse with a person above 10 years under the age of 16, 4 years imprisonment concurrent with the above and a conviction is recorded.

• On count 5 on indictment dated 18 November 2009 referring to SCC 341 of 2009, engage in sexual intercourse with a person above 10 years under the age of 16, 4 years imprisonment cumulative with the above as to 6 months and a conviction is recorded.

• On count 8 on indictment dated 18 November 2009 referring to SCC 341 of 2009, engage in sexual intercourse with a person above 10 years under the age of 16, 4 years imprisonment cumulative with the above as to 6 months and a conviction is recorded.

• On count 9 on indictment dated 18 November 2009 referring to SCC 341 of 2009 , engage in sexual intercourse with a person above 10 years under the age of 16, 4 years imprisonment concurrent with the above and a conviction is recorded.

• On count 10 on indictment dated 18 November 2009 referring to SCC 341 of 2009 , engage in sexual intercourse with a person above 10 years under the age of 16, 4 years imprisonment cumulative with the above as to 2 years, and a conviction is recorded.

• On count 11 on indictment dated 18 November 2009 referring to SCC 341 of 2009 , engage in sexual intercourse with a person above 10 years under the age of 16, 4 years imprisonment concurrent with the above and a conviction is recorded.

• On count 12 on the indictment dated 18 November 2009 referring to SCC 341 of 2009, intentionally possessing child pornography, 18 months imprisonment cumulative with the above as to 6 months and a conviction is recorded.

• The head sentence is 8 years. The non-parole period is 5.5 years. The sentence will commence on 9 April 2009.

IN THE SUPREME COURT OF THE ) No. ACTCA 50 - 2010

AUSTRALIAN CAPITAL TERRITORY ) No. SCC 341 of 2009

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

1. On 24 November 2010 the appellant was sentenced by Refshauge J on 11 counts on indictments in matters SCC73/09 and SCC341/09 as follows:

Count 2 on the indictment dated 18 November 2009 referring to SCC 73 of 2009 - Commit an act of indecency/under 16 years - 2 years imprisonment to commence on 9 April 2009 (to take into account pre-sentence custody) to end on 8 April 2011.

Count 3 on indictment dated 18 November 2009 referring to SCC 73 of 2009 - Intentionally possessing child pornography - 3 years imprisonment, to be served cumulative as to 12 months on Count 2 of the indictment (Commit an act of indecency/under 16 years) to commence on 9 April 2009 and end on 8 April 2012.

Count 5 on the indictment dated 18 November 2009 referring to SCC 73 of 2009 - Dishonestly appropriating property - 12 months imprisonment to commence on 9 October 2011 to be served concurrent as to 6 months on Court 3 of the indictment (Intentionally possessing child pornography) to end on 8 October 2012.

Count 3 on indictment dated 18 November 2009 referring to SCC 341 of 2009 - Engage in sexual intercourse with a person above 10 years under the age of 16 - 4 years imprisonment to commence on 9 October 2012, to be served consecutive on the earlier sentence for theft (SCC 73/09) to end on 8 October 2016.

Count 4 on indictment dated 18 November 2009 referring to SCC 341 of 2009 - Engage in sexual intercourse with a person above 10 years under the age of 16 - 4 years imprisonment, to commence on 9 October 2013 to be served cumulative as to 1 year on count 3 to end on 8 October 2017.

Count 5 on indictment dated 18 November 2009 referring to SCC 341 of 2009 - Engage in sexual intercourse with a person above 10 years under the age of 16 - 4 years imprisonment to commence on 9 October 2014 to be served cumulative as to 1 year on count 4 to end on 8 October 2018.

Count 8 on the indictment dated 18 November 2009 referring to SCC 341 of 2009 - Engage in sexual intercourse with a person above 10 years under the age of 16 - 4 years imprisonment to commence on 9 October 2016 to be served concurrent as to 2 years on count 5 to end on 8 October 2020.

Count 9 on the indictment dated 18 November 2009 referring to SCC 341 of 2009 - Engage in sexual intercourse with a person above 10 years under the age of 16 - 4 years imprisonment to be served wholly concurrent with count 8.

Count 10 on the indictment dated 18 November 2009 referring to SCC 341 of 2009 - engage in sexual intercourse with a person above 10 years under the age of 16 - 4 years imprisonment to commence on 9 October 2019 to be served cumulative as to 3 years with the sentence on count 9 to end on 8 October 2023.

Count 11 on the indictment dated 18 November 2009 referring to SCC 341 of 2009 - Engage in sexual intercourse with a person above 10 years under the age of 16 - 4 years imprisonment to commence on 9 October 2020 to be served cumulative as to 1 year on count 10 to end on 8 October 2024.

Count 12 on the indictment dated 18 November 2009 referring to SCC 341 of 2009 - Intentionally possessing child pornography - 18 months imprisonment to commence on 9 April 2024 to be served cumulative as to 12 months to end on 8 October 2025.

Head sentence of 16 years and 6 months with a non-parole period of 7 years to commence from 9 April 2009.

2. The effect of the sentences so imposed was of 16 and a half years of imprisonment commencing 9 April 2009 with a non-parole period of seven years from that date.

3. There were agreed statements of facts supporting those counts. It is noted that the counts to which Mr Holliday pleaded guilty and upon which he was subsequently sentenced on were deemed in full satisfaction of each indictment.

4. In relation to SCC 73 of 2009 (counts 2, 3 and 5):

STATEMENT OF FACTS

On 30 March 2010 Aaron James Holliday [date of birth] was arraigned before Penfold J when he pleaded guilty to three offences contained on an indictment dated 18 November 2009. Those offences were particularised in counts 2, 3 and 5 and were accepted in full satisfaction of the indictment. Count 2 is an offence contrary to section 61(2) of the Crimes Act 1900 (ACT) and carries a maximum penalty of 10 years' imprisonment. Count 3 is an offence contrary to section 65 of the Crimes Act 1900 and carries a maximum penalty of 500 penalty units (currently $55,000.00), imprisonment for 5 years or both. Count 5 is an offence contrary to section 308 of the Criminal Code 2002 (ACT) and carries a maximum penalty of 1000 penalty units (currently $110,000.00), imprisonment for 10 years or both. Mr Holliday also wants the court to take into account an additional offence contained on a list of further offences. That offence is an offence contrary to section 131.1 of the Criminal Code 1995 (Cth) and carries a maximum penalty of 10 years' imprisonment.

At the time of the offences the accused lived with his mother, Nanette, at [address], Canberra. He was a friend of [W]'s family having first met them in 2004 at a birthday party. The friendship developed to a point where he would be at their family home on a regular basis.

On 7 March 2007 the mother of [W] contacted the Australian Federal Police with regard to the accused.

As a direct consequence of that contact police spoke with [W] and he told police that in July 2006 he had been invited to stay overnight at the home of the accused. This was with the permission of [W]'s parents. Only [W] and the accused were at the premises when [W] stayed overnight. The accused's mother was overseas.

[W] states that after the accused cooked dinner he offered [W] a number of beers and he asked him if he wished to play strip poker, which [W] refused to play.

The next day the accused played a "video" on his computer while he and [W] were in his bedroom. According to [W] the images shown to him included a naked young man and a naked adult male. [W] told police that:

the dude's dick was in his mouth and he made him bend over and he gave it to him

The young man in the video was "about ten, and my brother's age". [W] told police that "I mean, like he hadn't gone through puberty because there was no hair, around his penis area."

The video played for a period of time. This relates to Count 2, committing an act of indecency in the presence of a person under the age of 16.

On 8 May 2007 police obtained a search warrant for the accused's premises. That warrant was executed at about 7.15am on 9 May 2007. Both the accused and his mother were present when the warrant was arrested.

During the search police located a quantity of computer equipment in the accused's bedroom. Police saw that a Sony Vaio laptop was switched on, was connected to the internet, was running a program, SHAREAZA, and was apparently downloading 664 files.

A subsequent examination of the computer revealed that a quantity of video files were located on the D drive, such as:

44 partially downloaded child pornography video files in D:\SHAREAZA\temp
86 child pornography videos stored on a directory titled SORTED containing subdirectories titled GOOD and OK

All the activity on this computer was under the user profile "Jake" and there were personal documents and other material stored within this profile that were associated with the accused. An online chat program, Microsoft Messenger, was active within this profile using a Hotmail address [address]. The SHAREAZA program contained a profile in the name of Jake Thomas who was described as a 14 year old male. SHAREAZA is a "peer-to-peer" file sharing program which allows users to share computer files across the internet. Police saw that the files being downloaded were broken into files labelled:

11YO BOY
9YO BOY
12YO BOY
GIRL PICS

Police examined a file picked at random on the Sony VAIO laptop computer, titled 1&e044.JPEG, which depicted two young males of approximately 5 years of age engaging in oral sexual intercourse.

After a thorough examination by AFP Computer Forensics it was ascertained that there were approximately 11,129 photographs and 770 videos stored on the various pieces of electronic media seized by police and that the photographs and videos related to child pornography. Some of the images located on the media seized by police were of [W], and other young boys. These photographs were taken in NSW and are child pornography. The taking of those photographs and other related offences are being prosecuted by the NSW authorities. These photographs were taken on a Nikon D70 digital camera and such a camera was seized by police during the execution of the search warrant. This all relates to Count 3, intentionally possessing child pornography.

The AFP Computer Forensic examination ascertained that the user "Jake" had used the Dell Inspiron 7500 laptop computer to access internet web sites such as:

The investigation showed that on a black server computer the user "Jake" had accessed internet websites.

An examination was conducted of the images located by police on the various pieces of electronic media. The images included male and female children in sexual poses, the oral, anal and vaginal penetration of children by other children and by adults, bestiality and bondage. The material was classified into two categories: child pornography and child abuse. Material depicting a sexual component is regarded as child pornography and all other material is regarded as child abuse material.

The images have been categorised based on the 'Oliver' scale:

Images depicting erotic posing with no sexual activity
- Approximately 7261 images fall into this category.
- The children in this category are predominately male and range in age between about 2 years of age and 14 years of age.
Images depicting sexual activity between children, or solo masturbation by a child
- Approximately 2685 images fall into this category.
- There are children of both sexes represented and they range in age between about 2 years of age and 14 years of age.
Images depicting non-penetrative sexual activity between adults and children
- Approximately 719 images fall into this category.
- There are images of adult males ejaculating onto the face of an infant child. Other images depict adult males touching, with their penis or hand, naked boys aged between about 2 years of age and 12 years of age. Other images depict adult males engaged in group masturbation with boys aged between about 2 years of age and 12 years of age.
Images depicting penetrative activity between children and adults
- Approximately 490 images fall into this category.
- There are images of both girls and boys, aged between about 8 years of age and 14 years of age, being penetrated orally, vaginally and anally by hands, fingers, tongues and objects.
Images depicting sadism or bestiality and child abuse
- Approximately 6 images fall into this category.
- There are images of both boys and girls aged between about 8 years of age and 14 years of age. These children are naked and tied up. There is one image that depicts a girl of between about 7 years of age and 10 years of age where a dog is seen to be licking the girl's genitals.

A report of the theft of an external hard drive from the offices of Air Services Australia in Constitution Avenue was made by Robert Donnelly on 29 November 2006. Robert Donnelly worked with the accused at the time of the theft at Air Services Australia. Mr Donnelly had purchased the hard drive from Harris Technology on 27 April 2006 and he had stored the hard drive in a desk drawer at his workplace with Air Services Australia. After he returned to work following a period of sick leave he saw that his property was missing and he reported this to his employer. This relates to Count 5, theft.

In the course of their investigation with Air Services Australia police were advised that an external hard drive had been purchased by that organisation on 29 March 2005 from Technology Warehouse Pty Ltd. That hard drive was taken from the premises of Air Services Australian and this relates to the further offence contained on the list of additional offences which Mr Holliday wishes to be taken into account on sentence.

Mr Holliday first appeared in the ACT Magistrates Court in connection with these matters on 10 may 2007 before Magistrate Campbell when he was remanded in custody. On 20 June 2007 Chief Magistrate Cahill granted Mr Holliday bail. On 16 February 2009 Mr Holliday was committed to trial in the ACT Supreme Court on these matters.

On 13 May 2009 Mr Holliday was arrested in Canberra by the AFP on other matters and he has remained in custody since that date.

5. In relation to SCC 341 of 2009 (counts 3, 4, 5, 8, 9, 10, 11 and 12):

STATEMENT OF FACTS

The accused, Aaron James Holliday [date of birth] on 6 August 2010, pleaded guilty to 7 counts of sexual intercourse with a young person, in relation to two separate complainants, [R] and [J]. He also pleaded guilty to one count of intentionally possessing child pornography.

Offences contrary to section 55(2) of the Crimes Act 1900 (sexual intercourse with a young person) carry a maximum penalty of 14 years' imprisonment. An offence contrary to section 65 of the Crimes Act 1900 (possessing child pornography) carries a maximum penalty of 500 penalty units (currently $55,000.00), imprisonment for 5 years or both.

In January 2008, during the Summernats festival, the accused met and became friends with [T] then aged 17 years of age. The accused introduced himself as 'Cody'. Through this association the accused became friends with [T]'s family including his two younger brothers, [D] and [J].

During this time [T] visited the accused at his house and met his mother. He noticed that she called the accused 'Aaron'. [T] asked the accused about this and he was told that his real name is 'Cody' however his mum calls him 'Aaron'.

Through [T]'s association with the accused, [D] and [J] became friends with the accused and began to associate with him.

Offences against [J] (Date of birth 25 September 1996)

Count ten - CC2009/5611 - Sexual intercourse with a young person

Count eleven - CC2009/5612 - Sexual intercourse with a young person

During late 2008 and early 2009 [J], through his brothers, became friends with the accused. In the middle of 2008 the accused asked [J] to do some jobs for him. [J] said no, however the accused continued to ask. On an occasion in 2009 [J] was with [R]. The accused asked both boys if they would have sex with someone or whether they would eat 'poo' for money.

The accused then told the boys that if they did ten jobs for him he would buy them a dune buggy. [J] said he would think about it and [R] agreed to do the jobs for the accused. The accused then obtained [R]'s mobile phone number, at this stage [J] did not have a mobile phone.

On one occasion, between 1 March 2009 and 31 March 2009, [J], [R] and the accused attended Mount Majura. On this occasion the accused had [J] 'train' with him. The accused explained that the training was to help catch paedophiles and that he had done similar training when he was a child and that they were working for the police. The accused explained that the training involved smoking a cigarette, kissing the accused, then 'sucking on each others penises'.

The accused gave [J] a cigarette to smoke and shortly after [R] left the area. [J] then smoked the cigarette. The accused then kissed [J] on the mouth. The accused then had [J] 'train' with him which involved [J] performing fellatio upon the accused which lasted for about 10 seconds. The accused then performed fellatio upon [J].

Offences against [R] (Date of birth 4 April 1996)

Count three - CC2009/5615 - Sexual intercourse with a young person

Count four - CC2009/5616 - Sexual intercourse with a young person

Count five - CC2009/5617 - Sexual intercourse with a young person

Count eight - CC2009/5334 - Sexual intercourse with a young person

Count nine - CC2009/5335 - Sexual intercourse with a young person

In late 2008 [R] was introduced to the accused through his friend, [J]. [J] had been asked by the accused to introduce him to a friend who would be interested in doing some jobs for him.

When [R] first met the accused he did not tell him what sort of work he wanted him to do but asked him questions about whether he would have sex with someone or whether he would kill someone.

After this meeting the accused began meeting [R] on a regular basis for 'training'. The accused would pay [R] $50 every time they would 'train'. The accused explained that he was putting [R] through scenarios for an operation called 'paedobait'. The accused told [R] that he was working with the police to help catch paedophiles and that they would set [R] up with a 'guy', he would go to his home with cameras, and film the 'guy' to catch him as a paedophile and that the matter would then go to court. The accused promised [R] money out of this exercise. For the purpose of the training the accused gave [R] a fake name of [SR]. The accused told [R] that he needed to 'train' before he could actually start working for 'paedobait'. The training involved replicating the real scenarios [R] would perform while actually doing the work for 'paedobait'. The accused explained that the training involved him performing fellatio upon [R] and [R] performing fellatio upon the accused.

On a day between 25 December 2008 and 2 February 2009, the accused arranged to meet with [R] at a cubby house in the reserve near [address]. The purpose of the meeting was to do the 'training'. The accused gave [R] a cigarette which he smoked. The accused then kissed [R] on the mouth and had [R] perform fellatio on him. This lasted a few minutes until the accused ejaculated into [R]'s mouth (Count three). The accused then performed fellatio on [R]. This incident ended when [R] asked the accused to stop as it felt weird (Count four).

On a day between 25 December 2008 and 10 May 2009, [R] attended the accused's residence at [address], at the request of the accused. The accused took [R] to the plant room in the building. On this occasion the accused had a laptop computer with him which contained a camera. [R] was wearing a pair of 'skins' which the accused told him to pull down to his thighs. [R] then lay down on a black jacket that belonged to the accused. The accused then did the 'training' with [R] and performed fellatio on him (Count five). While this occurred the accused filmed the 'training' on his laptop, which was set up to the left of [R]. After the 'training' finished the accused showed [R] the recording, playing it for him a number of times.

An analysis of a laptop found at the accused's residence has found a number of screen captures taken from video footage. The screen captures show a sequence of images involving [R] and the accused together in the 'plant room'. The sequence commences with [R] fully clothed and ends with him topless.

On 10 May 2009 the accused telephone [R] at 10.44 am, 4.06 pm, 4.10 pm and 4.12 pm, during these phone calls the accused arranged to meet [R] at the reserve near Antill Street at about 4.45 pm. While at the reserve the accused again had [R] 'train' with him. The accused had [R] perform fellatio upon him until he ejaculated (Count 8). The accused then performed fellatio upon [R] until [R] ejaculated (Count 9). After about 45 minutes the two left the area and the complainant returned to his home.

Security footage set up to monitor the entrance to the accused's premises and linked to a laptop computer found at the residence shows the accused leaving his residence at 4.26 pm and returning at 5.56 pm.

[R] believes that he 'trained' with the accused in the same manner on about 10 other occasions prior to 10 May 2009. The 'training' occurred at the reserve, in the plant room and in the accused's house. The accused maintained contact with [R] during this period by mobile telephone. Between 3 February 2009 and 13 May 2009 there were 160 telephone calls between [R]'s and the accused's mobile telephone. Between 22 February 2009 and 12 May 2009 there are 26 text messages between the accused and [R]. During his association with the accused, the accused told [R] that if he told anybody about the 'training', or if he lied to him the accused would kill him.

As part of the 'training' the accused loaded a number of images, films and documents onto [R]'s ipod. These have been obtained from the complainant's ipod and were loaded onto the device on 6 May 2009.

The documents include the following:

Document regarding training

'enjoying yourself - use training as a way to experiment with things that you wouldn't normally do - I'm not going to think that you are weird.

Develop a positive relationship - you need to have a positive attitude while training. I'm looking for you to be keen to train. In other words, act horny. Don't be scared - you initiate some things as well, don't leave it all up to me.

Control - you should be able to turn it on and off (horny), you need to be able to control as much as you can with everything.

Psychology - you need to be able to control the situation when on the job while remaining a kid at the same time - still need some work in this area especially.

Scenarios - you need to come up with a couple of scenarios all by yourself ..."

Document about relationship

'here is some stuff for you, hope you enjoy

All the best with everything that you have to do, any problems you know how to contact me.

I'm sorta(sic) hoping at this point that you have come to trust me, cause (sic) I have defiantly (sic) come to trust you. This is a good start and hopefully down the track we will have a true 'best friends' or 'true brother' sort of relationship. Just remember I will always be there for you, to help you in what way I can.

Sorry to get all deep and meaningful on ya(sic) - but you'll get over it!

P.S with you music - put all your favourite songs in the 'on the go' playlist by holding down the centre button and selecting add to on the go, this will put it in the on the go playlist and then you can save the playlist once your done! Just so I can find out what type of music ya (sic) like!"

Document about movies

"divx movies converted

Full quality movies - awesome movies too!!

Please watch the following in that folder:

...

Stand by me - This will help you with the job and us

Sleepers - will also help you with the job and us

The final cut - This might help you understand a little bit about my job, sort of.

Watch in that order

..."

On 12 May 2009 [R] was interviewed by members of the Australian Federal Police and disclosed the offences outlined above.

On 13 May 2009 the AFP obtained a search warrant for the accused's residence at Allara Street City ACT. At 11.25 am the AFP gained entry to the apartment. At 12.45 pm AFP forensic service located the accused in a cavity off the plant room belonging to the apartment complex.

During the execution of the search warrant the AFP seized a Telstra phone bill in the name of the accused. During the search warrant the accused informed police he had not owned a laptop for about 2 years. Police located laptop chargers, laptop remotes, external hard drives and memory cards in the bedroom of the accused. Police located a HP laptop computer on the balcony of the unit, hidden behind the reverse cycle air-conditioner.

A forensic examination of the plant room was conducted on 13 May 2009. A presumptive test for the presence of seminal fluid was positive. Further analysis has found that sperm samples collected from the plant room are 20 billion times more likely to have originated from the accused, than another random member of the ACT population. A mixed sperm sample was also found to contain the DNA of two males, the accused and the complainant, [R], cannot be excluded from this sample.

The fingerprints of the accused and [R] were also identified in the plant room.

Count 12 - Intentionally Possess Child Pornography

An examination of the laptop computer seized during the execution of the search warrant identified 1866 child pornography images. The examination revealed that the computer system had last been accessed on 12 May 2009.

Two encrypted files were located:

C:\Microsoft Productz.jbc (62 gigabytes), and
C:\Abode CS3 Premium Suitesz.jbc (60 gigabytes)

These two files were identified as being created by encryption software called "Jetico Best Crypt". Examination showed that software had integrated the use of the laptop fingerprint reader into the "Jetico Best Crypt" software to permit access to encrypted files using a fingerprint scan as opposed to a password. All attempts to access these files have been unsuccessful. The accused has been asked to assist in gaining access to these files however he has declined to render any assistance.

Located on the computer was a file sharing program called "eMule". A file sharing program is used to search for, and download, files from the Internet as well as sharing files on the internet for others to download. Files associated with the 'eMule" program were located at:

C\Users\Aaron\AppData\Local\eMule\config, and

C\Users\Aaron\AppData\Roaming\CyberLink\MediaCache

The second directory is associated with software called "Cyberlink DVD Suite" and "Cyberlink YouCam" which were installed on the computer. The examination indicated that the location acts as a default store for media produced by the software including pictures taken using the webcam. The examination showed that the "Cyberlink Youcam" software was configured to utilise the "HP Webcam" and that it was configured to save videos to Z\Zvidz. The Z drive was identified as associated with C:\Abode CS3 Premium Suitez.jbc.

The examination of the computer revealed that it had been used to access the internet.

The 1866 images are all still images showing children of both sexes, ranging from approximately 12 months of age to approximately 16 years of age. The majority of the images depicted boys ranging from approximately 8 years to approximately 14 years of age. The images depict:

Children in sexual poses;
Children engaged in sexual acts with other children;
Children engaged in sexual acts with adults; and
The oral, anal and vaginal penetration of children.

Those images have been categorised based on the 'Oliver' scale:

Images depicting erotic posing with no sexual activity
- Approximately 1062 images fall into this category.
- The majority of the images are of boys between approximately 8 to 14 years of age with erect penises. May appear to be part of a series of images that progress into other categories. There was, however, an image of the torso of a young female with apparent blood on her vagina and legs.
Images depicting sexual activity between children, or solo masturbation by a child
- Approximately 368 images fall into this category.
- The majority of images are of boys between approximately 8 to 14 years of age masturbating.
Images depicting non-penetrative sexual activity between adults and children
- Approximately 238 images fall into this category.
- The majority of images in this category appear to be from series of images of boys approximately 8 to 14 years of age which progress into the next category. There was, however, an image of a young girl (approximately 2 years of age) with an erect penis in front of her face and she appears to be in a distressed condition and is crying.
Images depicting penetrative activity between children and adults
- Approximately 196 images fall into this category.
- These images show boys between approximately 12 months and 16 years being penetrated orally and anally by erect penises and anally by fingers or objects. There are images of girls between approximately 12 months to 5 years being penetrated vaginally by erect penises.

The accused was arrested on 13 May 2009. At that time he was due to take his trial in the District Court at Queanbeyan in the sittings commencing 25 May 2009. In connection with that trial he had been granted bail on 22 May 2008 by the NSW Supreme Court. That bail contained, inter alia, the following conditions:

He is to reside with his mother, Nanette Joy Holliday, at [address].
He is not to approach or contact persons under the age of 14 years.
He is prohibited from accessing internet and email facilities and is prohibited from having internet or email facilities at his place of residence at [address].

The accused had previously been granted bail by Chief Magistrate Cahill on 20 June 2007 in connection with those matters that are now the subject of SCC 73 of 2009. The terms of that bail are, inter alia:

To neither approach or contact persons under the age of 14 years.
Prohibited from accessing internet and email facilities and having same at his place of residence.
To reside at [address].

The accused has remained in custody continually from his arrest on 13 May 2009. As of 10 November 2010 the accused has been in custody in respect of these matters for a total of 546 days.

6. The conduct alleged was, as all parties recognised, seriously criminal both in terms of its premeditation and impact on the victims. It was also noted that the offences fall into two series. In between them the offender was on bail in respect of the first series of offences. The second series not only abused the conditional liberty on which the offender had been released but also involved the defiance of express conditions of bail.

7. Counsel referred to Ryan v R [2001] HCA 21; (2001) 206 CLR 267 wherein McHugh J had emphasised the proper severity to be visited upon offenders for crimes such as the present committed by them both from a retributive perspective and the perspective of community protection.

8. The enormous impact of these offences was reflected in the victim impact statements the trial judge received.

9. There was a pre-sentence report. The offender claimed that, whilst at boarding school, he was sexually abused by some students and a teacher. There was physical and emotional abuse as well. Such a history is not uncommon for sexual abusers, though the mechanism for it is not clear. He did not receive any counselling or other interventions for the abuse he suffered. Given his age at the time it is not surprising that it had gone unreported. Given the correlation between sexual abuse and abuse perpetration it is, perhaps, surprising that interventions to assist male survivors of sexual abuse exclude perpetrators who have been abused. Nevertheless there are programs addressing sex offenders more generally. The Adult Sex Offender Program (ASOP) would take at least two years to be effective. It was noted that the offender had used a "storyline" to deceive and manipulate his victims. He was assessed as being at high risk for re-offending. He had been offered parental support.

10. There was a psychological assessment of the offender. He presented as having 'generalised anxiety disorder'. Given his situation that was unsurprising. It was not a factor contributing to his offending behaviour. He expressed regret, remorse and a desire not to offend again. However, he had deviant sexual arousal and confused sexual orientation. That may have been related to his experience of sexual abuse as a child. Dr Stevens, forensic psychologist, found him to be 'blindly uncritical' of his own behaviour and tended to minimise its negative effect on others. Nevertheless, Dr Stevens considered that he demonstrated a 'reasonable level of remorse'.

11. I come now to his Honour's sentencing remarks. He noted the maximum penalties for the various offences, the most serious penalty of 14 years being in respect of acts of sexual intercourse, as defined by s 55 Crimes Act 1900 (ACT), with a person aged between 10 and 16 years. The offender had performed acts of fellatio upon and with three victims. He possessed a large quantity of child pornography of various levels of depravity. He had also committed acts of indecency, short of sexual intercourse with the young persons. He had also stolen, probably to assist in storing and viewing such material, a cable tester valued at $23,159.72 and a hard drive, valued at $190.00. The latter being a summary offence, was simply scheduled. That is, taken into account.

12. The first group of offences involved one young male person [A]. They came to the attention of police in March 2007. There was a large quantity of child pornography involved. The acts of indecency related to the showing of child pornography to [A].

13. The second group of offences involved acts of fellatio and involved the three other young males aged between 10 and 16 years already referred to. The offender also possessed a further quantity of child pornography. He was then on bail in respect of both prior ACT matters and some NSW charges.

14. A significant minority of the child pornography images were of the most lewd and disgusting category referred to in the Oliver scale (see R v Oliver [2003] 1 Cr App R 28).

15. It must be emphasised that the victims of those offences are the children who are abused and degraded to produce the offending images. His Honour appropriately noted that.

16. As to the offender's personal circumstances, his Honour accepted, despite the prosecutor's submission to the contrary, that the offender had himself been a victim of sexual abuse as a child. He also accepted, again contrary to the prosecutor's submission, that the offender was genuinely remorseful. He also accepted, however, that the enormity of the offending behaviour left little room for leniency.

17. His Honour further found that the offender, even in custody, had garnered images clipped from publications which, whilst not pornographic, displayed children. That demonstrated a continuing propensity to offend against children. He noted the victim impact statements and expressed the view that the offending behaviour warranted severe punishment.

18. The sentencing process was acknowledged to be difficult. His Honour noted the offender's lack of prior record, his relative youth and the likelihood of a need for protection in custody. The principle of totality militated against fully accumulating the various sentences. His Honour allowed approximately a 20% reduction for the guilty pleas which, though late, spared the victims from giving evidence and being cross-examined.

Count 3 on indictment dated 18 November 2009 - Engage in sexual intercourse with a person above 10 years under the age of 16 - 4 years imprisonment to commence on 9 October 2012, to be served consecutive on the earlier sentence for theft (SCC 73/09) to end on 8 October 2016.

Count 4 on indictment dated 18 November 2009 - Engage in sexual intercourse with a person above 10 years under the age of 16 - 4 years imprisonment, to commence on 9 October 2013 to be served cumulative as to 1 year on count 3 to end on 8 October 2017.

Count 5 on indictment dated 18 November 2009 - Engage in sexual intercourse with a person above 10 years under the age of 16 - 4 years imprisonment to commence on 9 October 2014 to be served cumulative as to 1 year on count 4 to end on 8 October 2018.

Count 8 on the indictment dated 18 November 2009 - Engage in sexual intercourse with a person above 10 years under the age of 16 - 4 years imprisonment to commence on 9 October 2016 to be served concurrent as to 2 years on count 5 to end on 8 October 2020.

Count 9 on the indictment dated 18 November 2009 - Engage in sexual intercourse with a person above 10 years under the age of 16 - 4 years imprisonment to be served wholly concurrent with count 8.

Count 10 on the indictment dated 18 November 2009 - engage in sexual intercourse with a person above 10 years under the age of 16 - 4 years imprisonment to commence on 9 October 2019 to be served cumulative as to 3 years with the sentence on count 9 to end on 8 October 2023.

Count 11 on the indictment dated 18 November 2009 - Engage in sexual intercourse with a person above 10 years under the age of 16 - 4 years imprisonment to commence on 9 October 2020 to be served cumulative as to 1 year on count 10 to end on 8 October 2024.

Count 12 on the indictment dated 18 November 2009 - Intentionally possessing child pornography - 18 months imprisonment to commence on 9 April 2024 to be served cumulative as to 12 months to end on 8 October 2025.

Head sentence of 16 years and 6 months with a non-parole period of 7 years to commence from 9 April 2009.

20. His Honour originally had added those sentences to 14 years and 6 months backdated to 9 April 2009 for time spent in custody. The sentences, as pronounced, in fact totalled 14 years and 6 months, though his Honour had twice announced the total to be 16 years and 6 months, the second time after re-calculation.

21. The offender appealed against the sentences imposed on the grounds that they were excessive, offended the totality principle and were 'crushing'.

22. The Director of Public Prosecutions cross-appealed on the ground, though not so expressed, of inadequacy.

23. The offender contended that the theft sentence was excessive and that the possession sentences were excessive. The other sentences were accepted as not in themselves excessive. However, the accumulation to 16 years and 6 months was challenged as both excessive and not reflective of his Honour's clear intention to impose a total head sentence of 14 years and 6 months.

24. A summary table of previous sentences for possession of child pornography supported the claim that the sentences, even allowing that in the first incident a significant minority of images were in the most serious category, were the longest ever imposed in this Territory for such offences. The longest previous sentence, imposed on appeal in R v Cooper [2012] ACTCA 9 (21 December 2012), was two years seven months with 18 months of it to be served by way of periodic detention.

25. As was acknowledged in R v Meyboom [2012] ACTCA 48 (11 December 2012), where a number of sentences are imposed for a series of offences it is usually inappropriate simply to add up the appropriate sentences for each offence. That may lead to an excessive period of imprisonment overall. The sentencer must consider the total sentence to be imposed and either reduce each individual sentence or make some or all concurrent in whole or in part to reflect the total criminality. The latter approach is to be preferred to the former but either will conform to the totality principle.

26. Before proceeding further, I would advert to the submission that the sentence is, and ought not to be, 'crushing'. It is far from clear what that term is intended to convey beyond the accepted principles involved in adjusting sentences down to the level of a just and appropriate sentence for the over-all criminality reflected in the several offences.

27. The Director submitted that the total head sentence, which he accepted was 16 and a half years, was inadequate, as were the individual components. Further, the non-parole period was, he submitted, also inadequate. That submission rests on an assertion that the sentences imposed by Refshauge J were so lenient as to 'shock the public conscience'.

28. As with the term 'crushing' there is no objective yard stick by which the affront to the public conscience can be measured. The test of manifest inadequacy is whether, in all the circumstances, including comparable sentences, the sentence imposed is so far below the range thus indicated, that it appears to the appeal court that it cannot be regarded as adequate. That includes the consideration that, on occasions, an apparently lenient sentence may be justified by reason of special or exceptional circumstances.

29. The Director did not adduce any material which would warrant such a conclusion. Indeed, at least insofar as the apparently unrelated theft charge is concerned, the contrary conclusion is apparent.

30. It follows, in my view, that the sentence for theft must be set aside. I agree that if it had stood alone only a fine or a mere conviction would have been imposed. In the circumstances it should attract only a conviction.

31. The next question relates to the possession charges. They do, as the appellant submits, greatly exceed previous sentences, even in cases that are manifestly more heinous. The case of R v Priest (Unreported, Supreme Court of the ACT, Penfold J, 16 February 2011) is such a case. The undiscounted sentence in that matter was two years only. I do not think a sentence greater than 18 months for the first, more egregious, offence is justifiable, having regard to the guilty plea.

32. The remaining sentences are, in my view, within range, given the various factors favourable to the offender.

33. I should add that it also seems to me that, his Honour, in considering the overall criminality and, indeed, in reconsidering it, considered 14 years and 6 months, not 16 years and 6 months to be the appropriate head sentence overall.

1. Act of indecency (Count 2 of SCC73/09) - convicted

2. Possession of child pornography (Count 3 of SCC73/09) - convicted

4. Sexual intercourse (Count 3 of SCC341/09) - convicted

5. Sexual intercourse (Count 4 of SCC341/09) - convicted

6. Sexual intercourse (Count 5 of SCC341/09) - convicted

7. Sexual intercourse (Count 8 of SCC341/09) - convicted

8. Sexual intercourse (Count 9 of SCC341/09) - convicted

9. Sexual intercourse (Count 3 of SCC341/09) 10 - convicted

10. Sexual intercourse (Count 11 of SCC341/09) - convicted

11. Child Pornography (Count 12 of SCC341/09) - convicted

35. Thus, 8 years should be substituted to commence as from 9 April 2009.

36. I consider that 5.5 years is an appropriate non-parole period, commencing 9 April 2009.

37. I would uphold the appeal to that extent and dismiss the cross-appeal.

I certify that the preceding thirty seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

IN THE SUPREME COURT OF THE ) No. ACTCA 50 - 2010

AUSTRALIAN CAPITAL TERRITORY ) No. SCC 341 of 2009

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

38. Aaron James Holliday has appealed against a sentence imposed in November 2010 and corrected by the sentencing Judge in December 2010. The Director of Public Prosecutions (DPP) has cross-appealed.

39. The sentence addressed a total of 11 counts set out in two indictments, and was as follows (where there are differences, the offence dates shown reflect dates set out in the case statements rather than the indictments):

Sexual intercourse, child at least 10 but under 16 [RD]

Sexual intercourse, child at least 10 but under 16 [JJ]

40. A further offence of theft was taken into account in sentencing the appellant for the act of indecency.

41. The sentence was backdated to 9 April 2009 to take account of pre-sentence custody. A non-parole period of seven years was set.

42. The grounds of appeal originally notified by the parties were narrowed before the appeal was heard, and the grounds that were eventually argued were as follows:

(a) The appellant argued:

(i) that the sentences for theft (offence 3 in the table above) and for the first offence of possessing child pornography (offence 2 in the table above) are manifestly excessive; and

(ii) that the total sentence is manifestly excessive, offends the principle of totality, and is crushing.

(b) The cross-appellant argued:

(i) that the sentences for all the sexual intercourse offences and for the act of indecency were manifestly inadequate; and

(ii) that the non-parole period was manifestly inadequate.

43. The two agreed statements of facts on which the appellant was sentenced are set out in the reasons of his Honour the Chief Justice. The sentencing judge also had access to a pre-sentence report and a psychological assessment of the appellant, as well as oral evidence given by the pre-sentence report author, parents of two of the victims, and the appellant himself. There were also victim impact statements made by two of the victims and by family members of each of the victims.

44. The theft offence (offence 3 in the table at [39] above) involved an external hard drive, valued at around $190, which was stolen from a desk drawer in a workplace between April and November 2006 while the owner of the hard drive was on sick leave.

45. I agree with the Chief Justice's view that if this offence had been dealt with alone and as a first offence, it would have attracted at most a conviction and a fine, and that in the current circumstances it justified no more than the recording of a conviction. Accordingly, I find that the theft sentence was manifestly excessive.

46. In R v Alexandro Silva [2009] ACTSC 108 (4 September 2009), I referred to the Oliver scale for classifying child pornography:

The classification of pornographic material is commonly done by the AFP for the prosecuting authorities using what is known as the Oliver scale, from R v Oliver [2003] 1 Cr. App. R. 28, in which the Criminal Division of the Court of Appeal of England and Wales, having referred to proposals made by the Sentencing Advisory Panel (a body set up originally to advise the Court of Appeal and now to advise the Sentencing Guidelines Council), said at [10]:

Subject to one matter, we accept the Panel's analysis of increasing seriousness by reference to five different levels of activity, derived from the COPINE Project's description of images. We do not that [sic] agree with the Panel that COPINE typologies 2 and 3 are properly within Level 1. As it seems to us, neither nakedness in a legitimate setting, nor the surreptitious procuring of an image, gives rise, of itself, to a pornographic image. Accordingly, with that amendment to the Panel's proposals, we categorise the relevant levels as:

(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;

(5) sadism or bestiality.

47. The sentence of three years imprisonment for the first child pornography offence is said to be the highest such sentence imposed in the ACT. The table prepared on behalf of the appellant, if it is comprehensive, bears out this claim. That of itself would not make the sentence manifestly excessive, since the offence might also be the worst example of the offence that has been dealt with here. The table of child pornography sentences produced by his counsel indicates that the appellant's sentence was higher by five months than the next longest ACT sentence, but it is not so clear that the appellant's offending was the worst case recorded by a significant margin, or even that it was the worst ACT case at all.

48. The following table extracts from counsel's table all the sentences that involved child pornography images in the two worst categories on the Oliver scale (Levels 4 and 5).

104,879 images of child pornography on the computers and other computer equipment, approximately 578,553 images and 1,061 videos of child pornography on the 683 computer disks, and approximately 1,138 images of child pornography on pages within the two A4 folders

2 years 7 months (increased from 1 year seven months), 18 months to be served by periodic detention

The first charge involved him possessing a total of 23,549 images and 1,013 videos on 19 January 2010. These images ranged in seriousness from erotic posing with no sexual activity right through to images depicting sadism and bestiality.

A significant majority of the images were in category 1, but there were still likely to be over 1,000 images in categories 4 and 5. A majority of the videos were in category 4, with about 5% in category 5.

The second charge was more serious in that it involved intentional possession of child pornography between 18 February 2010 and 13 March 2010 when TW was then on bail for the other offences. He apparently returned home after being granted bail and soon after used the computer, in breach of his bail conditions, and his computer was found to contain a total of 828 images, mostly in category 1 and with none in category 5 and 32 videos, in category 2,3 and 4, though none in categories 1 or 5.

(21,000 images of child pornography, 857 videos of children pornography - 8 images and 2 videos level 5 on Oliver scale

16 months imprisonment, 3 months full time, 5 months periodic detention, balance suspended

1 x possess child pornography (18 images on phone, 16 level 1, 1 level 2 and 1 level 4 on Oliver scale)

Level 1 - 23,977 images, including 630 animated images and 201 videos. Level 2 - 251 images and 319 videos.

Level 3 - 746 images including 107 animated images and 42 videos.

Level 4 - 1,141 images including 750 animated images and 232 videos. Level 5 - 68 images including 40 animated images and 16 videos.

2 years imprisonment, 4 months full time, 9 months periodic detention, balance suspended

1064 files - most anime, 49 images & videos of actual children

2 years imprisonment for access, 15 months for intentionally possessing child pornography, concurrent, first 6 months to be served by periodic detention, balance suspended

10 months imprisonment (forming part of larger sentence)

(over 43,000 images) involving thousands of different children and around 7,000 at Level 4 or 5 on the Oliver scale.

49. It is not clear which of these offenders had pleaded guilty, but since it is very hard to defend a charge of possession of child pornography, it is reasonable to assume that most of them involved guilty pleas; however, the timing of any such pleas is also not ascertainable from the table.

50. The sentencing Judge described the appellant's collection, including material covered in Level 4 or 5 of the Oliver scale, as:

approximately 490 images fell into level four, showing images of both girls and boys aged between about eight and 14 years old being penetrated orally, vaginally and anally by hands, fingers, tongues, penises and objects;
approximately six images fell into level five, the images being of both boys and girls aged between about eight years of age and 14 years old, naked and tied up. There is one image that depicts a girl of between about seven and 10 years old where a dog is seen to be licking the girl's genitals.

51. The cases in which offenders had at least a comparable amount of Level 4 and Level 5 material are TW (sentence increased to 16 months on appeal); Haynes (two years imprisonment, four months to be served full-time then nine months as periodic detention); Priest (19 months imprisonment reduced from two years for pleading guilty); and possibly Cooper, who was sentenced to serve 18 months of his 31-month sentence by periodic detention, with the remainder of the term suspended. The terms imposed on TW and Priest were both to be served as part of longer sentences involving significant full-time custody. The appellant's sentence of three years imprisonment, also to be served as part of a longer sentence in full-time custody, is 17 months longer than the longer of the TW and Priest sentences, and five months longer than the sentence imposed on Mr Cooper, who was not required to serve any full-time custody and only 18 months as periodic detention.

52. The DPP noted other factors relevant to the child pornography offences, being:

(a) The limited contrition demonstrated by the appellant's failure to facilitate the de-cryption of the laptop containing the material that was the subject of the second child pornography offence.

(b) The commission of the second child pornography offence after the first such offence had been detected, and the cunning and sophistication of the attempts to conceal the material the subject of the second charge.

(c) The fact that the first child pornography offence included child abuse material as well.

53. As far as I can see, only the last of these could have been relevant to the sentence imposed for the first child pornography offence. Given the appellant's age, the fact that he was at the relevant time a first offender, and the other relevant personal circumstances noted at [78] to [83] below, as well as the fact that many of the other child pornography offenders mentioned in the appellant's table were able to serve some or all of their sentences as periodic detention (including as already mentioned the recipient of the longest sentence shown in the appellant's table), a sentence of three years imprisonment seems excessive. Furthermore, if the appellant had been sentenced only for the three offences on the first indictment, it is quite likely given his subjective circumstances that he would have served some or all of his custodial time as periodic detention. It is important to ensure that the sentences for the first group of offences are not made inappropriately harsh because of the appellant's subsequent offending.

54. The sentence for the first child pornography offence was manifestly excessive and should be reduced.

The act of indecency and sexual intercourse offences

55. In relation to the act of indecency and sexual intercourse offences, the DPP says they were inadequate given the maximum sentences available (respectively 10 and 14 years imprisonment), the serious nature of the offending and the lack of compelling subjective circumstances, and that the plea of guilty discounts of 20% were excessively generous given the lateness of the pleas. The DPP submitted that the act of indecency tended to mid-range seriousness.

56. In support of the claim of manifest inadequacy, the DPP noted the following aspects of the sexual offence and act of indecency offences:

(a) The fact that there were three separate victims.

(b) The grooming behaviour engaged in by the appellant before committing the offences, described in relation to the victims JJ and RD as "persistent and elaborate".

(c) The commission of most of the offences (those involving the victims JJ and RD) while the appellant was on bail for earlier similar offences.

(d) In relation to the victim RD, that there was repeated offending augmented by threats.

(e) The late pleas of guilty.

57. Apart from the challenges to the sentences for particular offences, each party challenged the total sentence (and in the case of the DPP also the non-parole period) as simply too high or too low. There was no attempt to compare the individual sentences or the total sentence with sentences imposed in comparable cases (except for a brief reference to three recent sentences for fellatio, none of which called the current sentences into question), but various specific matters were identified by counsel as supporting the claim of manifest excess or manifest inadequacy.

58. The appellant does not challenge the individual sentences for the sexual intercourse and act of indecency offences, but says that the effect of the accumulation provided for by the sentencing Judge was to produce a sentence that was manifestly excessive by reference to the overall criminality of the appellant, and was a "crushing sentence".

59. In support of this submission, counsel for the appellant mentions the sentencing Judge's repeated references during sentencing to the imposition of a sentence of 14 years and 6 months, subsequently corrected when it became apparent that the total sentence as imposed by his Honour in fact ran for 16 years and 6 months. Counsel also says that "the addition error", being the error that caused his Honour to calculate the total sentence at 14 years and 6 months instead of the actual 16 years and 6 months, "by implication supports the submission that a total sentence greater than 14 years and 6 months is crushing".

60. It is hard to resist the suspicion arising from the sentencing Judge's error as to the total sentence imposed that in his Honour's view the appellant's overall criminality was appropriately dealt with by a sentence of 14 years and 6 months.

61. A "crushing" sentence was described by four members of the Victorian Court of Criminal Appeal (Young CJ, Starke, Crockett and Hampel JJ) in Frederick Thomas Yates [1985] VicRp 3; (1984) 13 A Crim R 319 at 326 as a sentence that destroys "any reasonable expectation of useful life after release". A "crushing" sentence in those terms is not necessarily manifestly excessive: in some cases "the offender has by his criminal act or acts forfeited the right to any such hope or expectation" (R v Crowley and Garner (1991) 55 A Crim R 201 at 206). In that case Crockett J, with whom Southwell and Ashley JJ agreed, referred to the proposition that an offender "should be able to entertain some hope and expectation that he will be released from confinement at a time that will permit him to have some useful period of his lifetime left open to him to enjoy" (at 205-206). Taken literally, the concept would have little or no relevance for relatively youthful offenders with ordinary life expectancies - for instance, a 25-year old with a life expectancy of 75 years could expect "a useful period of his lifetime left open to him to enjoy" in respect of any sentence less than, say, 40 years. If the term "crushing sentence" means anything in relation to younger offenders, it presumably indicates something along the lines of a sentence that is so long that the offender cannot conceive of enjoying a useful life after its expiration (possibly reflecting more the difficulty that relatively young people might have in imagining such a long period than any necessary obstacle to a period of useful activity after release).

62. The DPP does not directly criticise the accumulation of the several sentences, but says that any increases in individual sentences would also need to be reflected in an increased total sentence.

63. A number of matters were identified by the parties as relevant to the question of manifest excess or inadequacy.

64. The DPP points out that the sentencing Judge did not refer in his sentencing remarks to the need for general deterrence (except in an introductory reference, in the third paragraph of his sentencing remarks, to the courts having a role to play in deterring both offenders being sentenced "and others" from committing sexual crimes against children). Nor was there any specific finding about the appellant's prospects of rehabilitation, although in the same introductory paragraph his Honour did refer to the court's role in facilitating rehabilitation, and later in his remarks he noted the mixed reports on the appellant's rehabilitation progress so far.

65. His Honour did not make an explicit assessment of the objective seriousness of the offences, or of the danger to the community posed by the appellant.

66. There is no real disagreement between the parties that the offences committed by the appellant were serious, were accompanied by an abuse of the friendship he had been offered by the first victim's family, involved a chillingly sophisticated degree of planning and "grooming" of his victims, and have had very significant effects on his victims and their families. The commission of the second group of offences while the appellant was on bail was a particularly disturbing feature of the offending, but its significance needs to be carefully assessed (at [95] to [97] below).

67. It is clear, as submitted by the DPP, that the victims were vulnerable, but it is not apparent that they were more vulnerable than other children in the age group protected by the offences for which the appellant was sentenced.

68. I also accept that the making of threats to RD aggravated the offences against him.

69. Accepting that some of the offences may have had particular aggravating features, it seems to me that the seriousness of the act of indecency and the sexual intercourse offences are in general properly categorised as low-range tending to mid-range.

70. The act of indecency, involving the showing of a pornographic "video" to the victim, must have been a very disturbing experience for the victim, but did not involve any sexual contact.

71. The sexual intercourse offences all involved fellatio, on some occasions lasting only for a very brief period. On one occasion this was performed by the appellant on his victim and on three other occasions performed on the appellant and the victim on each other, although I note that all instances of fellatio were instigated or required by the appellant; there is no suggestion of any "mutual" or "consensual" involvement by the victims.

72. The offences and their broader circumstances have obviously had a multi-faceted and very disturbing impact on the victims and their respective families; on the other hand fellatio may be seen as less of an affront to the victims' dignity and personal integrity than some other kinds of sexual activity.

73. His Honour noted that the pleas of guilty came "at a late stage" and that the evidence of the child pornography offences was overwhelming. His Honour gave a 20% discount on the act of indecency, sexual intercourse and theft sentences, a discount of about 14% on the first child pornography sentence and a discount of 25% on the second child pornography sentence.

74. The DPP says that the 20% discounts were too much for a late plea in the face of a strong prosecution case. It seems that the pleas on the first indictment were entered before a trial (estimated to take one week) was scheduled, while the pleas on the second indictment were entered immediately before the scheduled pre-trial hearing at which the evidence of the victims was to be taken. That meant that the second trial (estimated to take two weeks), was also not required to be scheduled, although presumably significant time had been set aside for the pre-trial hearing. This also meant that the three victims did not have to give evidence, but they and other family members did need to prepare for the pre-trial hearing, and there is reference in one of the victim impact statements to the distress this had caused. However, as I said in recent sentencing remarks (R v Howard, SCC 267/2010, 22 November 2012):

It is necessary to steer a careful path in dealing with sentencing discounts. It is undeniable that there is utilitarian value in a plea of guilty, at least in the ACT Supreme Court, even if the only saving is in the court time actually set aside for the trial. It is accordingly undesirable to create a situation where there is so little benefit in a late plea that a person who has not pleaded before the trial is about to commence might as well try his or her luck at trial rather than making a late plea.

75. It is true that the prosecution case in relation to some of the appellant's offences, especially the child pornography offences, was strong. It seems that the case on the sexual offences was also strong in substance. However, it is impossible to rule out the risk that one or more of the victims might have been cross-examined, at the least, into sufficient confusion about particular incidents as to lead a jury to return not guilty verdicts on some of the sexual offence charges. The utilitarian value of a plea of guilty in avoiding a trial, including for the victims, and even at the last minute, should not be underestimated. Furthermore, even a plea of guilty that may not indicate genuine remorse does amount to a taking of responsibility, an action by the accused that may have value in rehabilitation.

76. Recent experiences in this court suggest that more active case management by trial judges can be effective in bringing forward pleas of guilty, often before a trial date is even set and usually well before a scheduled trial. This of course depends significantly on the availability of meaningful plea of guilty discounts. It would be unfortunate for the courts, and a tragedy for victims, if an excessively rigorous approach to pleas of guilty not actually entered at the earliest possible opportunity resulted in an overall reduction in the number of guilty pleas and an increase in the number of matters going to trial even in the face of a strong prosecution case.

Appellant's subjective circumstances and rehabilitation prospects

77. The major disagreement in this case seems to focus on the weight to be given to the appellant's subjective circumstances and his prospects of rehabilitation.

78. First, the appellant, who is still only 27 years old, was 20 years old when the offending began, and the offences were all committed when he was between 20 and 23.

79. The DPP says that the appellant's youth must be set against the youth of the victims, but it seems to me that the youth of the victims is inherent in the offences charged, rather than providing a reason to discount an offender's youth. The community's obligation to protect children and young people requires a proper and constructive response not only to the needs of victims, but also to the rehabilitation needs of young offenders, in the long-term interests of the community as well as of those offenders.

80. The DPP points to the fact that the appellant's youth facilitated his access to the victims. This may be true, but does not seem to be enough to outweigh the considerations I have already outlined arising from the appellant's youth.

81. The appellant had no prior criminal record when he came to be sentenced for the current offences. The DPP says that the impact of this is diminished by the appellant's re-offending while on bail and the increased sophistication of his later offending. However it seems to me that the appellant came before the court as a first offender, and must be treated as such. In particular I consider it would be easy to fall into error by sentencing for the earlier offences in the series having regard to the commission of the later offences or the particular circumstances of that later offending.

82. Significantly, the sentencing Judge accepted the appellant's claim that he had suffered sexual and physical abuse while at boarding school, which he attended from the age of 10 years. His Honour noted that the school chaplain dismissed the appellant's complaints, and also that it is "well known that persons who are abused as children not infrequently become abusers themselves".

83. The sentencing Judge accepted that the appellant had shown remorse, saying:

The accused has tended to explain and justify his actions by reference to his personal experiences in childhood. In evidence before me, however, he fully accepted that they were criminal, completely unacceptable, and shameful. He did not try to excuse them.

84. There was evidence suggesting that the appellant's rehabilitation prospects were uncertain. This uncertainty was noted by the sentencing judge several times, and was also relied on by the DPP.

85. The appellant's assessment of suitability for the Adult Sex Offenders Program, prepared in July 2010, included the following comments:

It also needs to be noted that while Mr Holliday has been in custody he was found to be in possession of a large amount of images clipped from magazines and newspapers depicting young children. This demonstrates a significant ongoing risk in Mr Holliday's thinking and behaviour. Mr Holliday is willing to attempt to compile a collection of child images whilst incarcerated for sexual offending against a minor and possession of child pornography. This indicates a significant lack of consequential thinking as well as a further indication of his apparent sexual deviance. These are areas of treatment for Mr Holliday to address in ASOP.

86. Pre-sentence reports provided for the sentencing hearing contained detailed information relevant to rehabilitation. In a report dated 8 November 2010, Anthony Nocka of Probation and Parole wrote:

Given his experience of abuse as a child, Mr Holliday said his sexual abuse of the victims emerged out of a "skewed view of life in general" that impacted on the relationships he developed and "the sexual elements" of relationships. He stated he returned to ways of being with the victims "that was familiar to me", meaning he related to them in a manner that he had been related to at the time of his abuse. He added he was extremely confused and "by reverting back to my own experiences" it was "my way of normalising things". He suggested at the time he "wasn't thinking at all". He believed had he been given help to deal properly with his past experiences, he would not have committed the offences.

...

Of his behaviour towards the victims, Mr Holliday said "I've pretty much ruined their lives". He stated it was "unacceptable" and "my fault". He reflected he has "shared my hurt and pain with others", inflicting "this on innocent children". He acknowledged his behaviour is "illegal" and remains socially and morally wrong. Although hard to admit it, he stated "it was 110% my fault, my actions that caused everyone else hurt". He believes he has "loaded children up with more unnecessary problems" which is "not fair" and it "shouldn't have occurred". He expanded this by stating the victims "did not deserve it in any way, shape or form" and he has "betrayed the trust that children should see in adults".

Insisting he cannot attribute his offending to the abuse perpetrated against him, Mr Holliday said his experience does not justify what he perpetrated but it offers him a context for understanding his behaviour. He stated his actions in abusing the victim were choices he made. Mr Holliday said he feels "extremely sorry for what I've done and what I've caused [the victims], Mr Holliday expressed his hope that they are "able to find what is required for them to recover."

Mr Holliday added his actions have not only affected the victims but also impacted on their families - "fathers, mothers, friends, everyone else who knows them". He also indicated the wider community is also "scarred" by his behaviour.

Mr Holliday said counselling with staff of the Canberra Men's Centre has "helped me make the turnaround I needed" and he believed he is making some progress with issues. He acknowledged however, "treatment is going to take a long time."

When contacted at the Canberra Men's Centre, the counsellor identified by Mr Holliday confirmed he has met with Mr Holliday on seven occasions since 2 July 2010. He stated initial sessions focused on assisting Mr Holliday with issues related to Mr Holliday's experience of incarceration. The counsellor indicated the issues are now concerning his offending behaviour. He noted Mr Holliday has engaged well with the counselling process, is expressing an awareness of his offending behaviour as wrong and acknowledging the negative impact it has on the victims.

Mr Holliday appears to be making some progress in acknowledging and accounting for his offending behaviour. His willingness to examine and reflect on what he has perpetrated on young lives demonstrates his motivation to address his behaviour so as to reduce his risk of further behaviour.

Given his actions as recorded in statement of facts, it is challenging to give weight to Mr Holliday's experience of childhood abuse. It is however proper to acknowledge he was an innocent and vulnerable young person abused by an adult in a role of significant standing and status within the community. Such attempts that were made to address this at the time were closed down and to date there has been no account of it.

Mr Holliday has acted in a manner that is disturbing. The account reflects the use of a storyline to deceive and manipulate the victims. It worked to promote further abuse and offer some prospect of secrecy. In conjunction with the urge or forces he has referred to, it informs a view that Mr Holliday is at a continuing high risk of further offending in this manner.

Whilst Mr Holliday expresses an appreciation of the counselling that is currently available to him and is already deriving some benefit, he is realistic in suggesting there is a long way to go in addressing his risk. It is essential he complete a structured treatment program in order to identify the pathway to his offending behaviour and put in place robust strategies to prevent its further occurrence. Furthermore, he must address issues that prevent him from developing healthy relationships within which respectful ways of self-expression are fostered.

87. During the sentencing hearing in November 2010, Mr Nocka said in cross-examination:

And in the discussions you've had with him this month he's been quite open with you and accepting his responsibility?---I've found him, yes, to be open and accepting of his responsibility, yes.

And you've got - -

HIS HONOUR: You read what Mr Monaghan said - - -?---Yes.

- - - where there were serious issues about victim blame and history and so on. That's not been your experience?---No, no. But having said that, I - I wish to emphasise the dilemmas that are around assessing on the basis of - - -

I mean, if that's genuinely the rationale, the psychological causation then that needs to be confronted, but I mean an explanation is different from an excuse and that's not easy to draw a line - - -?---My sense - my understanding of how Mr Holliday views what has happened is that there is a degree to which he is separating his own experiences from what he's perpetrated, he sees them as two separate things. However, his reference point for what's happened inevitably is going at this very early stage and beginning to unpack some of that is going to drift back. My experience is I don't think he is saying now, "because this happened to me, I've done it to others."

"It's okay to do it to others"?---Yes, or that, "I'm going to do it to other". And in terms of what he has - - -

Well, not, "It's okay to do it," that's silly?---Yes.

But that, "it's inevitable and it's not my fault" ?---Yes.

That's the issue, isn't it?---Yes. Yes, that it is. He's saying that, "It's my fault".

And, "I can now understand why I did these things but I still was the voluntary actor doing these things"?---Yes.

MS WARWICK: And ---?---And I would say that his understanding has got a long way to go and I would say that the -

HIS HONOUR: Well, that's what the sex offender program - - -?---The pathways - - -

- - - would help?---The pathways are such, what's being demonstrated in his offences are that - that the ease - well, there is enormous concern that he could slip back in to that behaviour at this stage and a very dangerous form of behaviour and that's again where the need for that robust treatment is required and that being over a period of time.

Hence your assessment of his likelihood of reoffending?---Yes. I think it's high at the moment, yes.

And the sex offender's program is of course available in the AMC?---Yes.

And how long is that program?---It's - - -

It's a two-year program, isn't it?---It's a two-year program is the time that's placed on it. There is the proviso that someone - that risk is taken into consideration and there's ongoing monitoring throughout the program and so the participation in that can go beyond that and the nature of the process is such that it's not - it's based on where offenders are at at that time so there's no sort of set process that they ---

It's a rolling program?---Yes.

You join it when you join it, you don't wait until the next program starts, as it were?---And it can continue over a period of time, it's going to continue to monitor and - to monitor his process and what he's thinking and how that's transferring into his behaviour.

MS WARWICK: And given the remarks or the level of insight and the level of accepting responsibility in the most recent pre-sentence report, you'd have no reason to doubt that he'll participate in that program?---I would expect that he would participate in it, yes.

And that he would benefit from that program?---Yes.

88. The sentencing Judge noted that the appellant had had some difficulty in obtaining counselling in relation to the sexual abuse he had suffered. It seems also that the Adult Sex Offenders Program would not have been available to the appellant until after he was sentenced.

89. There is a clear development in the appellant's approach as expressed between July 2010 and November 2010. Possibly this only reflects that over that time the appellant learned more about what to say to give the impression that he was genuinely committed to pursuing rehabilitation, but it seems to me that the sentencing Judge was entitled to accept Mr Nocka's evidence that by November 2010 the appellant was demonstrating a more realistic attitude to his offending and to his need for rehabilitation, and in particular a developing willingness to take responsibility for his behaviour rather than blaming it on his own earlier experiences.

90. The sentencing Judge noted that the appellant would serve his sentence "on protection and in difficult circumstances", but that there was no evidence before him about "any alternative accommodation or special management" that would be available in the AMC. On the other hand there was evidence from the appellant himself (as to which he was not cross-examined) about the threats and assaults he had already suffered in the AMC and his resulting tendency to stay in his cell for extended periods:

MS WARWICK: Now, in the time that you've been in custody in the AMC since you were arrested in the middle of last year, you said you'd been in custody around about 550 days?---Yes.

And you've had - you've experienced a number of assaults while you're in the AMC?---Yes, I have.

And one occurred within a week of arrival at the AMC?---Within the first 23 hours of arrival at the AMC, yes.

And you were assaulted by a number of inmates?---Yes.

And did you receive any injuries?---Yes, I did. There - there was a - quite a large gash in the top - top of my head that required stitches.

And you've been assaulted on other occasions at the AMC?---Yes.

And can you give some details of that?---It - when - when I was - moved in - I got moved - from when I - when I got assaulted in - initially by the group of inmates I was moved to - well, the CSU after getting stitches in my head for observations and I think I was there for a couple of days or a week or - and then I was moved into the management unit and was associating with a very small number of prisoners and at that particular time I was unaware of the charges against people and I was sexually assaulted by one of the inmates there, under quite a violent situation where he had a - a shiv which was a razor blade type weapon.

And there's been another incident involving a shiv?---Yes, it was a - I can't remember the exact date, but it's - that one was just reported to Corrective Services and an inmate had managed to gain access to my cell and - and attempted to stab with me a sharpened up toothbrush, so.

And as a result, where are you housed at the moment?---Remand Unit 2.

So that's not a protection unit?---The unit 2 is the protection side of the unit and the unit 1 is the mainstream side.

And when do you leave your cell whilst your [sic] in the Remand Unit 2?---I leave my cell for visits with my father or any professional visits which include for the pre-sentence report and of course legal visits and counselling, they're all sort of classed as professional visits. So I mean recent - I mean, the pre-sentence report I went out for twice, you know, so it's been sort of fairly busy recently. Normally I don't go out at all.

And when you say you don't go out at all, at what times do you leave your cell?---Unless it's for a visit, I don't. The officers bring the meals around and - and occasionally some stores like laundry powder or things like that so I can wash my clothes and that's - that's it. Yes.

So you're not attending any courses or any programs at the moment? ---Not at this time, no. There was education previously but it's - it's - it's stressful enough just sort of leaving to visit my dad or those sorts of things so it makes education rather difficult.

And you say it's stressful leaving your cell, why is that?...Well, I mean, even being in the cell you get tormented at times by different people calling you all sorts of names and you get also sorts of items thrown under the door and - and things like that. But as soon as I leave my cell it is just a bombardment of constant abuse from a majority of the inmates there and roughly on average we house about 25 in our unit so it's quite intense and their screaming all sorts of death threats out at me which is quite difficult to handle. I mean, I can tolerate so much of that but it's extremely difficult when you're under the threat of death.

91. The DPP says that the non-parole period, at 42% of the total sentence despite the clear risk of repeat offending and concerns about the appellant's rehabilitation prospects, "bespeaks error".

92. It may well be that the non-parole period of seven years was chosen when his Honour believed he was imposing a sentence of 14½ years; in that context the non-parole period would have been 48% of the total sentence. Even a 48% non-parole period would be low enough to give some weight to the DPP's claim that it inadequately reflects the risk of re-offending and the cloud over the appellant's rehabilitation prospects.

93. It is impossible not to be concerned about the offender and the risks he may pose to the community. It may be that he is already a lost cause, with no real prospects of rehabilitation, such that after he has served this sentence, his life will be made up of brief periods of freedom during which he will commit or try to commit further similar offences, followed by ever-increasing periods of incarceration that are increasingly focused on protecting the community for as long as sentencing laws permit.

94. However, I cannot see that it is appropriate to give up on the appellant at this stage. These are his first offences, in the sense that he committed all of them before he had been dealt with by a court for any offending. He has not yet been given any chance to demonstrate, by taking advantage of the rehabilitation help that should finally have become available to him, that he has both the inclination and the capacity to avoid the fate described above by making fundamental changes to his behaviour in general and his sexual behaviour in particular.

95. It is true that the appellant committed the second and more serious set of offences after being charged and released on bail in relation to the first set of offences, but it is also likely that the release on bail after roughly six weeks in custody would have provided little or nothing in the way of rehabilitation support or indeed serious deterrence.

96. Furthermore, it is clear from the material quoted at [84] to [88] above that it took the appellant some time to realise that, whatever explanation for his behaviour was provided by the sexual abuse he had suffered as a child, that abuse did not excuse, let alone justify, the abuse he had perpetrated on others.

97. The commission of the second set of offences while on bail for the first set was legitimately taken into account in the appellant's sentencing, but I do not think at this stage it can be legitimately regarded as evidence of the appellant's ongoing lack of will, or capacity, to rehabilitate himself.

98. As noted at [57] above, neither party provided information about comparable sentences except in relation to the child pornography offences. However, I have a clear impression, informed to some extent by other ACT cases involving sexual intercourse with children but also by consideration of NSW sentencing statistics, that the appellant's total sentence is in fact relatively high. The relevant ACT cases include the following (none are completely comparable, but all of them seem to be relevant):

(a) R v AB, SCC 427/2008, 12 April 2012 (sentencing remarks) involved two sentences of eight years imprisonment each, with one year's accumulation, imposed after guilty verdicts at trial, for two counts of incest consisting of anal intercourse with the offender's seven-year-old son.

(b) R v G, SCC 308/11, 22 March 2012 (sentencing remarks) involved sentences of four and a half years and four years imprisonment, with one year's accumulation, imposed on pleas of guilty, for two counts of incest consisting of anal intercourse with the offender's 13 or 14-year-old daughter.

(c) R v Fortaleza, SCC 129/10, 16 August 2011 (sentencing remarks relating to two series of offences) involved three-year sentences for non-consensual penile-vaginal intercourse with girls under 16; the offender was aged 20 when the first group of offences were committed and 21 when the later offences were committed, and had been charged but not dealt with on the first group of offences before the second group of offences were committed.

99. Perhaps more relevantly, the Judicial Commission of NSW Judicial Information Research System (JIRS) collects sentencing statistics for NSW. Statistics are available for the offences of:

(a) sexual intercourse with a child between 10 and 16 under s 66C of the Crimes Act 1900 (NSW) as in force until 12 June 2003, an offence which carried a maximum penalty of eight years imprisonment, or 10 years if the child abused was "under the authority of" the offender (the old offence); and

(b) sexual intercourse with a child between 10 and 14 (now set out in s 66C(1) of the NSW Crimes Act), carrying a maximum penalty of 16 years imprisonment, or 20 years in various circumstances of aggravation that are not relevant to the appellant's offending (the current offence)).

100. Those statistics show that about two-thirds of offenders are sentenced to prison (69% of offenders for the old offence and 66% for the current offence). Of offenders sentenced to imprisonment, more than half were sentenced to terms of three years or less for the old offence, or three and a half years for the current offence.

101. The position is more stark when the NSW statistics are broken down by reference to the age and antecedents of the offender. For offenders aged 21 to 25 with no prior record, the highest sentence was three and a half years for the old offence and three years for the new offence.

102. Details of the offences and the offenders' circumstances are available only for very few of the relatively small number of the cases from which the statistical material is generated, but the statistical information, albeit incomplete, suggests that even for a mid-range offence, a sentence of four years imprisonment for a young first offender is unlikely to be properly characterised as manifestly inadequate.

103. Having regard to my assessment of the act of indecency and sexual intercourse offences as being of low to mid-range gravity, my belief that it would be unfair and unjustifiable to discount the appellant's prospects of rehabilitation at this stage in his life, and my consideration of the JIRS statistical information, I do not believe that the sentences imposed for these offences were so inadequate as to "shock the public conscience". Accordingly, I reject the cross-appellant's submission that those sentences should be increased, with a corresponding increase in the total sentence.

104. Having regard to the matters mentioned above, and the views I have expressed about particular issues, I conclude that:

(a) the theft sentence should be set aside, leaving only the conviction recorded;

(b) the sentence for the first child pornography offence should be replaced with a sentence of two and a half years;

(c) the sentences for the first child pornography offence and for the act of indecency should be served concurrently, as also provided for by the sentencing Judge, even though it might in other circumstances have been appropriate for there to be some accumulation;

(d) the other individual sentences imposed by the sentencing judge should stand.

105. I further conclude that those individual sentences should be accumulated to give a total sentence of 11 years, made up as follows:

(a) for the offences on the first indictment, a total of two and a half years imprisonment;

(b) for the offences on the second indictment relating to RD, a total of five years imprisonment, adding four and a half years to the total sentence;

(c) for the offences on the second indictment relating to JJ, a total of four years imprisonment, adding three and a half years to the total sentence; and

(d) for the second child pornography offence, 18 months imprisonment adding six months to the total sentence.

106. To reach the outcome described above, I have accumulated the sentences for offences committed against the same victim on separate occasions so that each new occasion of offending adds six months to the total sentence. For two offences committed on the same occasion (being the three cases of "reciprocal" fellatio, counts 3 and 4, 8 and 9, and 10 and 11 on the second indictment), the two sentences in each case are to be served concurrently.

107. The sentences that I would impose, and the exact concurrency and accumulation I would apply, are set out in the following table.

Sexual intercourse, child at least 10 but under 16 [RD]

At a glance

Court

Decision date

Before

Source

Judgment (220 paragraphs)

Parties

Cases Cited (1)