Hong v R

Court of Criminal Appeal (NSW)|2017-09-11|Before: Basten JA, Beech-Jones J, Fagan J, Jones J

Solicitors: SJT Law (Applicant) Director of Public Prosecutions (Cth) (Respondent) File Number(s): 2015/119630 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 3 August 2016 Before: Culver DCJ File Number(s): 2015/119630

Judgment

BASTEN JA: I agree with Beech-Jones J.
BEECH-JONES J: This is an application for leave to appeal from a sentence imposed by her Honour Judge Culver on 3 August 2016 for three child pornography offences.

The Offences

There was placed before the sentencing judge an agreed statement of facts. The statement revealed that on 22 April 2015 a search warrant was executed at the applicant's premises in North Rocks. During the execution of the search warrant, members of the Australian Federal Police ("AFP") located and seized a "Western Digital External Hard Drive", a "Kingston Hard Drive", a "Western Digital Hard Drive" (the "Internal Western Digital Hard Drive") and two DVDs labelled "Movies G" and "Movies H" respectively.
In relation to the first offence, an analysis of the Internal Western Digital Hard Drive and the Kingston Hard Drive revealed that the applicant used a peer-to-peer file sharing program to download 1806 files between 15 March 2012 and 25 March 2015. In doing so the applicant also used an encryption program. A significant number of the downloaded files contained file names indicating that child pornography material was downloaded. The AFP was able to match 71 "file signatures" of the downloaded files with files signatures of known child pornography files. These file signatures corresponded to video files with a running time of between 20 seconds and 91 minutes. The video files depicted victims aged between approximately 5 to 15 years old with a majority featuring girls involved in penetrative sexual activity. It is estimated that over 80 different child victims are depicted in the material that the applicant accessed via the internet.
An analysis of the Kingston Hard Drive revealed that certain search terms were used on the file sharing program to obtain child pornography material. One of the search terms was said to relate to a "child pornography series where [a] prepubescent female aged approximately 5 years is engaged in penetrative sexual activity with adults". Another concerned "prepubescent females aged approximately 8 years in the Philippines engaging in penetrative sexual activity with adults" while another search term related to a "prepubescent female aged approximately 8 years engaged in penetrative sexual activity with teenage male[s]". Two of the search items related to what was described as "pre-teen hard core pornography" and another concerned a "child pornography series involving females aged approx. 12-14 years posing sexually and performing penetrative sexual activity with adults".
The "child abuse material" the subject of the second offence was 301 image files and 170 video files located on the Western Digital External Hard Drive and a video file on the DVD labelled "Movies G". This material was classified using the categories provided for by the Australian National Victim Image Library Scheme, also known as the Child Exploitation Tracking System ("CETS") scale. In R v Porte 252 A Crim R 294; [2015] NSWCCA 174 at [16], Johnson J described the CETS scale as classifying "the activity depicted in child pornography material as follows: (a) Category 1 - nudity or sexually suggestive posing with no sexual activity; (b) Category 2 - non-penetrative sexual activity between children, or solo masturbation by a child; (c) Category 3 - non-penetrative sexual activity between adult(s) and child(ren); (d) Category 4 - penetrative sexual activity between children or adult(s) and child(ren); (e) Category 5 - sadism, humiliation or bestiality; and (f) Category 6 - animated or virtual depictions of children engaged in sexual poses or activity."
The analysis of the material found on the Western Digital External Hard Drive by reference to the CETS categories was as follows: CETS Category Image Video Total Category 1 225 32 257 Category 2 59 38 97 Category 3 5 25 30 Category 4 11 69 80 Category 5 1 6 7 TOTAL 301 170 471

The video file on the DVD labelled "Movies G" was classified as Category 3.
The agreed facts record that the material in the images and videos the subject of the second offence depicted children aged from approximately 7 to 15 years of age. It was estimated that there were over 300 different child victims depicted in that material.
The "child abuse material" the subject of the third offence consisted of 57 video files found on the Internal Western Digital Hard Drive. Of these video files, 8 were classified as Category 1 on the CETS scale, 6 were classified as Category 2, 4 were classified as Category 3, 37 were classified as Category 4 and 2 were classified as Category 5. The victims depicted in these videos were aged approximately between 5 to 15 years of age. The agreed facts noted that the majority of the video files featured girls approximately 10 years old engaging in penetrative sexual activity. It was estimated that over 70 different child victims were depicted in the video files located on this device.

The Sentencing Judgment

In the sentencing judgment her Honour noted the charges, their maximum penalties and summarised the agreed facts. Otherwise, I note the following six points about the sentencing judgment.
First, her Honour addressed the seriousness of the offences. In doing so, her Honour identified, by reference to authority, criteria relevant to the assessment of the seriousness of all three offences, namely, the nature and content of the material and in particular the age of the child and the gravity of the sexual activity depicted, the number of items or images possessed, whether the material was for the purpose of sale or further distribution, whether the offender had or sought to profit from the offence and, in the case of the possession offences, the number of children depicted and thereby victimised, and the length of time for which the pornographic material was possessed.
In relation to the first offence, her Honour noted that access to the material occurred over a period of three years, the material downloaded included material involving young girls being subject to penetrative sexual activity, the number of different child victims depicted in the material was substantial and that an encryption program was used on a peer to peer file sharing program. In relation to the possession offences, her Honour noted that actual children were used in the creation of the material, that the gravity of the material included material within CETS Category 5, that children as young as 5 were depicted in the material, and that examples of the material that had been provided within Category 5 included "images of gross and vile exploitation of young children".
Overall, her Honour accepted that while the offences were "very grave", they were "not the worst case seen by the Court" but nevertheless were "serious examples of these sorts of offences". Her Honour concluded that the applicant's criminality falls "well above the low‑range and does fall at around the mid-range level of seriousness".
Second, her Honour addressed the applicant's personal circumstances. The applicant was 42 years of age at the time of sentencing. He is a Malaysian national who has lived in Australia since he was 8 years old. He lives with his wife and two young children. At the time of the offences he was employed and did not have any previous convictions. Based on references that were tendered, her Honour concluded that the applicant was regarded as "having contributed to the community through his work for example, as a pastoral carer" but nevertheless stated that for these types of offences issues of good character are often "of lesser weight than might otherwise be the case" for other types of offences.
Third, her Honour recorded that, as the applicant entered his pleas to the two possessing child abuse material offences in the Local Court, then the sentence would be discounted by 25 per cent. An early plea was also entered to the first offence. In relation to that offence, her Honour stated that the "Commonwealth sentencing laws do not allow a discount for [the] utilitarian value" of that plea but nevertheless accepted that it indicated his "willingness to facilitate the course of justice". There is no challenge to this aspect of her Honour's judgment. Her Honour also accepted that the pleas were a demonstration of genuine remorse by the applicant for all three offences.
Fourth, her Honour addressed the applicant's prospects of reoffending. Her Honour referred to a report of a psychologist, Dr Collins, tendered on behalf of the applicant which assessed him as representing a low risk of reoffending. However, her Honour noted that the psychologist reported the applicant as stating that his sexual interest was in respect of post-pubescent females, whereas the agreed facts suggested that he also had a sexual interest in pre-pubescent children (see [8]). Her Honour found that to the extent the applicant's insight was "relied upon [by Dr Collins] to substantiate a finding of a low risk of re‑offending, the Court would have to treat that aspect with some caution". Ultimately, her Honour concluded that the applicant "would need to continue with [his] rehabilitation before the Court could ... confidently find that there is a low risk of re‑offending".
Fifth, her Honour addressed material suggesting that the applicant's family would experience hardship as a result of his conviction and the imposition of a custodial sentence. In particular, her Honour noted that if the applicant received a sentence of full-time custody that his family would have difficulty in meeting their mortgage repayments. Her Honour noted that this did not amount to "exceptional circumstances of hardship" but was a matter that could be taken into account in "the overall process of instinctive synthesis". No issue was taken with this approach on this application (see R v Zerafa 235 A Crim R 265 [2013]; NSWCCA 222; Director of Public Prosecutions (Cth) v Pratten (No 2) [2017] NSWCCA 42).
Her Honour also noted that, although the applicant had arrived in Australia when he was eight and had been educated here, he faced "mandatory cancellation of his permanent residence visa should he be sentenced to full-time imprisonment for a sentence of 12 months or more" and "discretionary cancellation of the visa in any event because of the offender being dealt with for offences involving sexual abuse of children". In fact, he faced mandatory cancellation for both reasons (Migration Act 1958 (Cth), s 501(3A)(a)(i) and (7)(c); s 501(3A)(a)(ii). The mandatory cancellation of the applicant's visa is not reviewable by the Administrative Appeals Tribunal (s 500(4A)(c)).
Her Honour noted that the applicant's wife was "unable to say" whether she and her children would move to Malaysia to be with the applicant and the fact that the applicant had no close family remaining in Malaysia or any significant contacts with that country. Her Honour stated that she took "those matters into account".
Sixth, her Honour concluded that there ought to be "some concurrency and some accumulation" in the sentences for the three offences and noted that this had been "conceded by both parties". Her Honour stated that the extent of the concurrency would be significant because it was only by committing the first offence that the applicant was able to possess the material the subject of the second and third offences.

Manifestly Excessive

The sole ground of appeal was that the sentence imposed by her Honour was "unreasonable, plainly unjust (for reasons that may not be able to [be] discerned) and the sentences are manifestly excessive". Neither the oral nor written submissions in support of this ground purported to distinguish between the individual sentences and their total effect. Leaving that aside, there was no dispute between the parties concerning the principles to be applied. They were conveniently summarised by R A Hulme J in Obeid v R [2017] NSWCCA 221 at [443] (with whom Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreed), namely: "When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. ● Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. ● Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. ● It is not to the point that this Court might have exercised the sentencing discretion differently. ● There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. ● It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
The written submissions in support of this ground raise two interrelated matters which are said to justify a conclusion that the sentence(s) was unreasonable or plainly unjust.
First, it was submitted that a consideration of sentences passed in other cases for the same or similar offences reveals that "her Honour's sentence was outside the appropriate range for the criminality of the offence". In oral submissions, Counsel for the applicant emphasised that many of the sentences imposed in the cases referred to concerned a larger number of images and videos, yet those sentences were either comparable to or less than that imposed upon the applicant.
Second, the written submissions filed on behalf of the applicant pointed to what was said to be a number of "significant considerations" relevant to the applicant's case which were said to suggest that his sentences were manifestly excessive, namely, that the images were not disseminated, the number and severity of the images (supposedly) lie at the lower end of the scale when compared with the reported cases, that the offender had no prior criminal history, that the offender was well-regarded in the community, the offender had good prospects for rehabilitation and the offender's family would suffer significant hardship as a result of his incarceration and likely deportation.
In relation to the first point, the written submissions referred to the analysis of the various sentences undertaken by Johnson J in Porte, especially at [151] to [154] which identified six sentences for similar offences imposed or considered by this Court or the Victorian Court of Appeal between 2008 and 2014 which concerned many more images than those possessed by the applicant. These sentences had non-parole periods ranging between 12 months (James v R [2009] NSWCCA 62) and 3 years and 6 months (R v Martin 246 A Crim R 477; [2014] NSWCCA 283). The applicant acknowledged that care must be taken in considering sentences imposed for contraventions of s 474.19 of the Code prior to 2010 and for offences contrary to s 91H(2) of the Crimes Act prior to 2008, as the maximum penalties for those offences were increased in those respective years.
One difficulty with this submission is that it overstates the significance that was placed on those cases by Johnson J in Porte. The conclusion of Johnson J in Porte was that the previous decisions of the Court only served to "fortify a conclusion of manifest inadequacy" in the sentence under consideration in that case (at [154]). In fact, a review of the sentences considered in Porte, and since then, does not support a contention that the sentences imposed in this case were manifestly excessive.
A more recent assessment of the overall effect of sentencing patterns, especially in the period after the increase in the maximum sentences, was undertaken in Fitzgerald v R [2015] NSWCCA 266. In Fitzgerald, this Court dismissed an appeal against a sentence for two counts of using a carriage service to access child pornography contrary to s 474.19(1)(a)(i) of the Code and four counts of possessing child abuse material contrary to s 91H(2) of the Code. As with this applicant, the offender in Fitzgerald had used peer to peer file sharing programs to access child pornography. A total of 1145 "items" were seized on the offender's electronic devices of which 390 were videos. The classification of that material according to the CETS scale was roughly similar to the material possessed by the applicant in this case (Fitzgerald at [8] to [13]). In relation to the use of a carriage service, 86 videos were identified (Fitzgerald at [14]). The totality of the material was said to involve 700 to 800 child victims, being predominantly girls, ranging in age between 11 and 14 years (Fitzgerald at [15]). Like the applicant in this case, the applicant in Fitzgerald had a reasonably strong subjective case except that in that case the sentencing judge found that he had "good prospects of rehabilitation" (at [22]).
In Fitzgerald, this Court rejected the contention that an effective sentence that consisted of a non-parole period of 2 years and 3 months with an additional term of 18 months was unreasonable or plainly unjust (Fitzgerald at [51]). In so concluding, Hoeben CJ at CL reviewed recent cases concerning sentences imposed for like offences and concluded as follows (Fitzgerald at [50]): "This Court has recently considered some Crown appeals against sentence in R v Linardon [2014] NSWCCA 247; R v Martin [2014] NSWCCA 283; R v Porte and R v De Leeuw. While there were differences in the numbers of images, the balance between videos and "still images", the particular facts and subjective cases of the offenders, there was a consistency of approach and in sentence. In each case, the Crown appeal was allowed and the sentences were increased. The sentence imposed in this case is well within the range of sentences imposed in those cases. What that sentencing pattern reveals is a range of head sentences of imprisonment between 18 months and 5 years after a discount for a guilty plea."
Overall, there is a broad equivalence between the facts and circumstances of the possession offences in Fitzgerald and this case. While it is true that the offender in Fitzgerald was found in possession of almost two and a half times the number of images and videos, the age range of the victims in Fitzgerald was significantly older than the ages of the victims depicted in the material possessed by the applicant. Further, as noted above, the offender in Fitzgerald had the benefit of a more favourable finding as to his prospects of rehabilitation than the applicant in this case.
More recently, in Miao v R [2017] NSWCCA 89 this Court dismissed an appeal against a sentence imposed for one offence contrary to s 474.19(1)(a)(i) of the Code and one offence under s 91H(2) of the Crimes Act of 2 years and 3 months imprisonment with a non-parole period of 1 year and 3 months. In Miao, a total of 361 images and 56 videos were possessed by the offender and they involved children under the age of 10 years some of whom were infants. The majority of images, and over half the videos, depicted children in erotic poses but with no sexual activities, although 29 images and 11 videos depicted penetrative sexual activity between children or between adults and children. Seventeen images and three videos depicted sadism, humiliation or bestiality.
In Miao, the offender's case for leniency was stronger than the applicant's in that there was a lesser number of images and videos, although the age of the victims and the type of activity depicted was roughly similar. Even allowing for the differences between the offender in Miao and the applicant, it can perhaps be accepted that the sentence imposed upon the offender in Miao was more lenient than that imposed upon the applicant. However, given that this Court merely dismissed an appeal from the sentence in Miao, the reasoning and outcome in that case do not provide any support for the applicant's contention that his sentence was manifestly unjust or unreasonable. Otherwise, the sentences imposed in Miao and in this case were consistent with the observations of Hoeben CJ at CL in Fitzgerald noted in [33] above.
Overall, a consideration of the sentences relied upon, especially Fitzgerald, provides no support for any suggestion that there was a marked difference between the sentence imposed upon this applicant and those imposed in other cases, much less that there was some misapplication of principle so as to warrant a conclusion that the sentence imposed on the applicant was manifestly unreasonable or plainly unjust.
Further, after judgment in this matter was reserved the Victorian Court of Appeal published its decision in Dennis v The Queen [2017] VSCA 251 ("Dennis"). In Dennis the offender pleaded guilty to one charge under the Code of using a carriage service to access child pornography material, one charge of failing to comply with the reporting requirements of the Sex Offenders Registration Act 2004 (Vic) and one charge of possessing child pornography contrary to s 70(1) of the Crimes Act 1958 (Vic). The offender downloaded 1370 images and 217 videos of child pornography material, the bulk of which was classified in CETS categories 1 to 4 (at [9]). The possession charges concerned 1410 images and 217 videos located on various electronic storage devices which largely corresponded with the downloaded material (at [6]) although they were not "exactly the same" (at [99]). The offender had a poor subjective case which included previous convictions for sexual assault and possession of child pornography (at [22] to [23]).
In Dennis, the Court of Appeal rejected the applicant's contention that sentences of three years and six months with a non-parole period of eighteen months for the use carriage service offence and eighteen months with a non-parole period of twelve months for the possession offence were manifestly excessive (at [97]). However, given the "near complete degree of overlap between the two offences", the Court upheld a contention that the cumulation of the two sentences by 12 months rendered the "total effective sentence …manifestly excessive" (at [99]). In Dennis, the offender was resentenced to a total effective term of three years and nine months imprisonment with a total non-parole period of two years.
In this case the sentence for the third offence commenced 8 months after the sentence for the first and there is no basis for concluding that the overlap between those offences was to the same degree as was the overlap between the use carriage service offence and possession offence in Dennis. Further the maximum sentence for the possession offence was five years imprisonment whereas in this case it is ten years imprisonment (at [1]). Overall Dennis does not assist the applicant.
Otherwise, as noted, the applicant relied upon a combination of various circumstances in support of his contention that overall the sentence imposed was unreasonable or plainly unjust. In relation to those matters, the suggestion that the applicant had good prospects of rehabilitation is contrary to the express finding made by the sentencing judge noted at [21] above. No challenge was made to that finding. Further, the reference to the absence of any prior criminal history on the part of the applicant and of him being well‑regarded in the community does not advance the matter further. They are common features of persons who have committed offences of this kind. The suggestion that the number and severity of the images lay at the lower end of the scale when compared to the reported cases has not been established. The victims depicted in the images and videos seized from the applicant's premises were very young. The items in his possession included material of a shocking and depraved nature. Otherwise, even in respect of material described as Category 1, it is necessary to bear in mind Johnson J's observation in Porte at [77] that "it should not be assumed that Category 1 material is mild in content" but instead such material "is capable of possessing significant gravity".
While I accept that the sentence imposed by her Honour could be characterised as a stern one, I am not satisfied that it was unreasonable or plainly unjust.

Proposed Orders

It follows from the above that I would propose that this Court only make orders which have the effect of adjusting the sentence dates imposed for the second offence to reflect her Honour's intention. Accordingly, the orders I propose are: (1) Leave to appeal be granted. (2) Appeal allowed in part. (3) Vary the sentence imposed for sequence 2 on the indictment so that the sentence for that offence is to commence on 2 June 2017 and expire on 1 March 2020 with the non-parole period to expire on 1 December 2018. (4) The appeal be otherwise dismissed.
FAGAN J: I agree with Beech-Jones J.

Amendments 09 October 2017 - [10] "Schemer" amended to "Scheme". [23] Sections of the Migration Act amended: "s 501(3A)(a)(ii)" to "ss 501(3A)(a)(i)"; "7(c)" to "(7)(c)"; and s 501(BA)(a)(ii) to s 501(3A)(a)(ii). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 October 2017

Sex Offender Registration Act 2004(Vic)

(Migration Act 1958(Cth)

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