Heathcote (a pseudonym) v The Queen (2014) VSCA 37, Totaan v The Queen [2022] NSWCCA 75 considered.

1. On 5 March 2021, the appellant pleaded guilty to one charge of using a carriage service to access child pornography material,[1] one charge of using a carriage service to access child abuse material,[2] and one charge of possessing child abuse material obtained or accessed using a carriage service.[3]
2. The appellant was arrested and granted bail on 20 August 2020. On 2 September 2021, following a plea in mitigation, the judge sentenced the appellant according to the following table:

• Using a carriage service to access child pornography material

• Using a carriage service to access child abuse material

• Possessing child abuse material obtained or accessed using a carriage service

Declared as registrable for period of 15 years pursuant to s 34 of the Sex Offenders Registration Act 2004 and forfeiture orders.

1. On 12 May 2022 the appellant was granted leave to appeal on a single ground of appeal. It is expressed as follows:

The individual sentences on the charges as well as the total sentences and the non-parole period are manifestly excessive.

1. On 20 August 2020, a search warrant was executed at the appellant's home. Several electronic devices were seized from a study used by the appellant, including:

(a) a Samsung S2 1TB portable hard drive;

(b) a WD Elements 3TB portable hard drive;

(c) an Asus computer tower; and

(d) a WD My Book 2TB portable hard drive.

1. Following forensic examination each of the seized devices was found to contain child abuse material. A total of 317,003 files which contained child abuse material (charge 3) was found. The appellant had accumulated that material by downloading it from the internet since 2013 (charges 1 and 2). The prosecution case was that the appellant engaged in a continuing course of conduct in which he accessed child abuse material via the internet between 27 January 2013 and 20 August 2020.

1. The material was classified in accordance with the Australian National Victim Image Library ('ANVIL') schema, as follows:

• 1 (depictions of children with no sexual activity)

• 2 (sexual activity by a child or between children)

• 3 (non-penetrative sexual activity between children or with adults)

• 4 (penetrative sexual activity between children or with adults)

• 5 (sadism, bestiality, humiliation or child abuse)

1. While the majority of the files (306,155) fell into category 1 (depictions of children with no sexual activity) of the ANVIL schema, a very significant number of files fell into each of the other categories. The child abuse material was primarily of prepubescent females. There was evidence that the material had been sorted and labelled, with material found on hard drives organised into folders corresponding to the websites from which it had been downloaded, and further organised into sub-folders relating to a particular child or series of materials.
2. During the execution of the search warrant on 20 August 2020, the appellant participated in a record of conversation with police in which he made the following admissions (amongst others):
   • his conduct was a 'porn addiction gone out of control';
   • he started obtaining child abuse material 'potentially 10 years ago';
   • obtaining the material became an 'all-consuming thing';
   • there is a 'sexual thrill' in accessing the material;
   • he does not share or disseminate the material.
3. That same day, the appellant participated in a record of interview with police where he stated that when he first started accessing the material, it was initially 'small-scale' but it had escalated in the last four or five months since the implementation of the COVID-19 pandemic lockdown.
4. On the plea the following matters were put in mitigation:
   • The appellant pleaded guilty at the first available opportunity.
   • The appellant could claim prior good character. He had no prior or subsequent convictions.
   • The appellant suffered from chronic ulcerative colitis and underwent a total colectomy in 2004. He underwent further surgery in 2005 and 2006 and required further ongoing gastrointestinal care due to intermittent 'flare-ups' of his condition.
   • The appellant suffered from anxiety, and a major depressive disorder, in partial remission. The fifth and six limbs of Verdins[4] were said to be engaged.
   • If he were to be imprisoned his family would experience significant hardship which would add to the burden of imprisonment.
   • The appellant had good prospects of rehabilitation and had made good progress towards it as a result of engaging Mr Peter Hanley, a forensic counsellor, in sex-offender treatment.
   • The appellant is remorseful.
   • The impact of COVID-19 on custodial conditions meant that these conditions were more onerous than would otherwise be the case.
5. The appellant's personal circumstances can be summarised as follows:
   • He was 52 years old at the time of sentence.
   • He had an unsettled, and ultimately unhappy childhood. His family relocated several times, causing distraction to his schooling and peer friendships. He was often bullied as a child, and as a young child in his first year of school he was sexually assaulted by a fourteen year old boy.
   • His family was close, although his father's alcoholism caused conflict.
   • He entered the workforce in 1986 after completing Year 11. He has worked steadily ever since.
   • He was married to Michelle in 1993 but separated in 1998. In 1999 he met Anna and they were married in 2003. She is the mother of their twin daughters, born in 2007.
   • The appellant, as a consequence of the aforementioned colectomy, now has a stoma and requires an ostomy bag. He is embarrassed and uncomfortable about this.
   • One of the appellant's daughters has had behavioural issues stemming from a mild intellectual disability, generalised anxiety and autism spectrum disorder.
6. It was submitted on the plea that the appellant retreated into online pornography as a refuge from an increasingly stressful family and work life. He found the anonymity of the internet gave him some sense of control over his life. He descended into child pornography, became more distant from his wife, and developed an insatiable desire for child pornography. He became desensitised to the suffering of the child victims.
7. Mr Patrick Newton, forensic psychologist, diagnosed the appellant as suffering from a major depressive disorder, occurring in the context of avoidant and obsessive personality disorders. The appellant met the DSM-5 criteria for an unspecified paedophilic disorder and will require long term therapeutic engagement. His risk of recidivism was thought to be 'moderate-low'. The risk will be reduced over time assuming that offence-specific treatment is provided.
8. Mr Peter Hanley, who oversaw 27 consultations in a sex-offender treatment program (SOTP), identified various objectives in treatment designed to reduce the risk of offending. Mr Hanley opined that the appellant had made solid progress in the SOTP, was committed to it, and demonstrated an upward trend of insight into the offending. He recommended ongoing treatment.

1. In comprehensive reasons for sentence the judge set out the circumstances of offending.[5] Her Honour remarked, correctly in our view, that while most of the charges were classified as category 1 in the ANVIL scheme, there were still a considerable number of higher (more explicit) category images and videos - over 5000 in category 2; just under 3000 in category 3; and just over 2800 in category 4. The category 4 videos depicted prepubescent female children of primary school age being orally, vaginally and anally penetrated by adult males. Further, there were 136 images and videos in category 5 which involved sadism, bestiality, humiliation and other forms of child abuse. There were also over 650 images and videos, and 28 documents, in category 6 depicting child abuse in either animated or virtual form.[6]
2. Her Honour observed that the appellant had 'carefully categorised and labelled the folders and sub folders' in which the material was stored. He had bookmarked certain material of interest and saved shortcuts to URLs and child abuse oriented websites. The judge noted the appellant's description of his conduct as 'a voyeuristic thing' and a 'porn addiction gone out of control'. The appellant subsequently admitted that his addiction had escalated over the years, particularly during lockdown. He said his preferred age range was girls in their 'early teens'.[7]
3. Her Honour concluded that these were very serious examples of very serious offending. The number of images, their nature, and the seven year duration of offending led her Honour to this undoubtedly correct conclusion. Her Honour reached this conclusion after considering a table of comparative cases provided by the prosecution and further cases provided by the defence. The judge remarked 'Counsel have advised that they have been unable to find any case approaching the magnitude of child abuse material accessed and stored as is involved in this case'. This led her Honour to conclude, again, we think, correctly, that comparative sentences were of limited use, as there were no close comparators.[8]
4. The judge reviewed the relevant sentencing principles and commented that the appellant's Senior Counsel accepted the correctness of the following propositions:

(a) general deterrence is the primary sentencing consideration for offences of this kind, given the prevalence of the offending, the ease of access to such material on the internet, and the difficulties of detection; and

(b) there is a paramount public interest in promoting the protection of children. Offences involving child abuse material are not victimless crimes. Children are sexually abused in order to supply the market, and child abuse material is a permanent record of that abuse.[9]

1. In response to a defence submission that the fact the appellant did not pay for the child abuse material he accessed, her Honour said:

The clinical descriptions of the ANVIL categories should not make us forget that in all but the category 6 images and materials there are real children being violated and abused. By your conduct, in accessing the material, you have fed the market for the making and distribution of child abuse material, encouraged and perpetuated the abuse of the children whose images you derived sexual pleasure from, and which you so meticulously categorised, labelled and filed. It makes little difference in my view, and is no mitigator that you did not pay for any of the material, that you only accessed what was available without payment.[10]

1. We observe that payment for this type of material could in certain circumstances constitute an aggravating factor, but accessing the same material for free is hardly a mitigating factor.
2. The judge then set out the appellant's personal circumstances including his mental and physical issues. We shall not repeat those circumstances. It was accepted that the appellant has made significant progress in the SOTP and that, as Mr Newton opined, the appellant presented a moderate to low risk of recidivism, but that he needed to continue in specialist sex offender treatment. The judge urged corrections authorities to consider carefully the reports of Messrs Hanley and Newton.[11]
3. Her Honour concluded that the appellant's prospects for rehabilitation were enhanced by his commitment to treatment, the continued support of his wife and parents, his good employment history, and the absence of factors such as a drug addiction, mental illness or intellectual disability.[12]
4. Her Honour also took into account the hardship the applicant's wife and children would suffer. Her Honour said:

I take into account also the hardship your wife and children will suffer, particularly as a result of the support you have provided to your autistic daughter. I take into account the distress that you will no doubt feel at being unable to provide that support.[13]

It must clearly be understood however, that it is your conduct which has brought about the consequence that you will be unable to provide that support to your daughter, and to your family more broadly. The concern that you, your wife and your parents express for your daughter consequent on your inevitable imprisonment that flows from this stands in stark contrast to the absence of concern you showed over the seven and a half years of these charges for the many victims, many of them girls of your daughters' age, who were so shockingly exploited for the production of the child abuse material you accessed and stored.

Sentencing is always an imperfect tool to reflect the abhorrence for the behaviour such as that you engaged in, and to balance against that the real needs and good prospects for rehabilitation of a real person who is neither all good nor all bad.[14]

1. In our view these reasons for sentence are a model of balance and clarity.

1. In his revised written case the appellant contended that the individual sentences on the charges, the total sentences and the non-parole period were all manifestly excessive. The appellant contended that the following combination of factors established this ground:
   • The numerical extent of the offending ought not to 'swamp other considerations'.
   • The appellant's immediate cooperation with investigators and his very early plea of guilty including its enhanced utilitarian value.
   • The appellant's previous good character and lack of prior or subsequent criminal history.
   • The impact of the appellant's physical and mental health issues on the custodial burden.
   • The appellant's efforts towards, and prospects of, rehabilitation.
   • The impact of the pandemic on the custodial burden.
2. The appellant accepted that the evaluation of comparative cases was compromised by the fact that charge 3, which attracted the longest sentence, was a relatively new offence, with very little current sentencing comparators.
3. In oral submissions the appellant developed three distinct arguments. First, he contended that there was a significant overlap in the conduct that constituted the continuing use of carriage services over 7 years to access child pornography/abuse material (charges 1 and 2) and the possession of that material (charge 3). In those circumstances the effective cumulation of 1 year and 8 months on charge 3 upon the 3 years and 4 months effective sentence imposed on charges 1 and 2 was manifestly excessive and resulted in a manifestly excessive overall sentence.
4. Second, the appellant contended that there was a significant aspect of family hardship centring around the difficulties being experienced by the appellant's daughter which may have been undervalued by the judge, given that the sentence was imposed before the important New South Wales Court of Appeal case of Totaan v The Queen,[15] which clarified that in federal cases it was unnecessary to demonstrate the common law requirement[16] that family hardship must be exceptional before it is a directly relevant sentencing consideration. This it was contended may explain the contended manifest excess.
5. Third, the appellant contended that the manifest excess may, to some extent, be explained by her Honour's rejection of the fact that none of the images or videos accessed by the appellant were purchased, as a factor that meant that this offending was less serious than other examples where that factor was present.
6. The respondent submitted, correctly, that manifest excess was a difficult ground to establish. It was argued that this was serious offending, that the sentences imposed on charges 1 and 2 viewed together (given it involved continuous offending but with a minor legislative change causing the charges to be split) and the sentence imposed on charge 3 were all within the range open to her Honour in the reasonable exercise of her sentencing discretion, as were the orders for cumulation.
7. On this latter aspect the respondent contended that the order for cumulation on charge 3 was within range, given the extent of the material possessed, and the obsessive cataloguing of that material, so as to facilitate access to that material. It was contended there was no aspect of double punishment - this was a serious example of this relatively new offence.
8. The respondent also submitted that the judge appropriately took into account family hardship, and was correct in rejecting the appellant's contention that the objective gravity of his conduct was mitigated by his accessing material freely available as opposed to commercially acquiring it.

1. We have concluded that the appellant has failed to establish this ground of appeal.
2. It is frequently stated by this Court that appeals alleging manifest sentence excess are difficult to establish. This is a stringent ground and in order to establish the ground, the appellant must demonstrate that the sentence (or sentences) imposed was wholly outside the range available to the sentencing judge in the exercise of reasonable sentencing discretion.[17] It must be established that the sentence (or sentences) imposed was not reasonably open to the judge in the proper exercise of that discretion.

1. It is convenient to consider first the total effective sentence. In our view the objective gravity of the appellant's overall criminal conduct is very high. Over a period of seven years and seven months, the appellant accessed a truly vast amount of child abuse material. He accessed 314, 860 abusive images and 2,115 videos. By our calculations, on average, the appellant accessed over 110 images a day over that period. Day in, day out. Over the same period, he examined, on average, just under one video a day. Numbers of course do not tell the whole story, but they illustrate starkly the extent of the appellant's criminality over a prolonged period.
2. The appellant's contention that most of the images accessed were from the less serious category 1 is correct, but does little to diminish the objective gravity of his offending. Category 1 images are not benign or innocuous.[18] The level encompasses a wide range of activity including, as was the case here, primary school age female children exposing their breasts and genitals and posing in a sexually explicit manner. Further we agree with her Honour's observation that the number of category 1 images and videos should not obscure or distract from the considerable number of higher category images found in the appellant's possession. Over 5,000 images and videos were category 2, predominantly depicting prepubescent female children of primary school age engaged in masturbation, including with devices or other sexual activity. Just under 3,000 images and videos were category 3. They predominantly depicted prepubescent female children of primary school age engaged in non-penetrative sexual acts with adult males. For example a partially naked female child touching the penis of a naked adult male. Just over 2,000 images and just under 700 videos were classified as category 4. They depicted prepubescent female children of primary school-age being orally, vaginally and anally penetrated by adult males. 136 images and videos were category 5, which involved sadism, bestiality, humiliation or other child abuse. For example, one showed a girl of about 10 on her hands and knees, wearing a collar and being restrained on a lead by a man, as she is made to raise her leg and urinate.[19] Not only had the appellant accessed this repellent material, he 'carefully categorised and labelled the folders, and subfolders where [he] stored the material.'[20] The folders generally named the source website and the subfolders were marked with a description of the particular activity or child. Bookmarks were made and shortcuts to URLs were created to enable easy access.
3. We repeat, we regard the objective gravity of the offending as very high indeed.
4. We have set out the relevant mitigating circumstances earlier in these reasons.[21] The appellant's early plea, remorse, steps towards rehabilitation, unblemished history, physical and mental health issues all operated in his favour, and all were given careful consideration by the judge. Presciently, the judge also took into account family hardship, both as a standalone factor in mitigation (as required by s 16A(2)(p) of the Crimes Act 1914 (Cth))[22] and as adding to the appellant's custodial burden.
   1. Balancing these competing factors was no easy task, however we consider that the total effective sentence was comfortably within the range of total effective sentences available to her Honour.

1. For essentially the same reasons we have reached the same conclusions about the individual sentences imposed. We agree with her Honour, and the parties that sentencing comparators are of relatively little assistance in evaluating these sentences. The nature, duration and extent of the offending stands above most 'comparative' cases. Each individual sentence required attention be given to general deterrence as the primary sentencing consideration, together with specific deterrence, denunciation and protection of the community. The protection of children is a paramount public interest.[23] It is not to the point to contend that the appellant did not pay for his access. Children will continue to be sexually abused and degraded while there is a demand for this material, regardless of whether there is a commercial transaction involved.
2. We consider each individual sentence is comfortably within the range of sentences available to the judge in the reasonable exercise of her sentencing discretion. Charge 1 dealing with access over a near 7 year period resulted in a sentence of 20 per cent of the maximum penalty; charge 2, dealing with access over a much shorter period resulted in in a sentence 6.7 per cent of the maximum penalty and charge 3 (in our view the most serious of the offences) dealing with the possession of that material resulted in a sentence that was 26.7 per cent of the maximum penalty. We consider each individual sentence to be entirely appropriate in the circumstances.
3. Whilst we accept that there is always overlap in these sorts of cases where access leads to possession, and both are charged, in our view the judge was astute to avoid double punishment. This is particularly reflected in the orders for cumulation.

1. The appellant's argument centred around the order for cumulation made on charge 3. The argument was effectively this: the effect of her Honour's orders for cumulation was that 3 years and 4 months' imprisonment was imposed for charges 1 and 2. The order for cumulation on charge 3 was that 1 year and 8 months be cumulated upon this 3 years and 4 months. This cumulation was submitted to be manifestly excessive given:

(a) The overlap referred to in paragraph 43; and

(b) The moderating principle of totality.

1. This argument may have some superficial attraction, but close scrutiny reveals its limitations. The judge, in this case, elected to make the base sentence the most lenient sentence (charge 2 - one year) imposed for the least objectively grave conduct - accessing child abuse material for 11 months. Having used the least serious sentence as the base sentence, relatively large cumulation was necessary on the other two charges to achieve a result that was proportionate to the criminality alleged. Put another way, had her Honour chosen to make charge 3 the base sentence, very modest cumulation on charges 1 and 2 would have achieved the same total effective sentence. The 1 year and 8 months cumulation on charge 3 is no more than a reflection of the low base sentence and any suggestion of manifest excess is illusory.
2. The appeal against sentence must be dismissed.

[1] Criminal code (Cth), s 474.19(1). The maximum penalty was 15 years' imprisonment. This offence was repealed on 20 September 2019 by virtue of the Combatting Child Sexual Exploitation Legislation Amendment Act 2019 (Cth) and replaced with the offence of using a carriage service to access child abuse material contrary to s 474.22(1) of the Crimes Act 1914 (Cth) with effect from 21 September 2019.

[2] Criminal Code (Cth), s 474.22(1). The maximum penalty is 15 years' imprisonment.

[3] Criminal Code (Cth), s 474.22A(1). The maximum penalty is 15 years' imprisonment.

[4] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

[5] CDPP v Hutchison [2021] VCC 1267 ('Reasons').

[15] [2022] NSWCCA 75 ('Totaan').

[16] See Markovic v The Queen [2010] VSCA 105; (2010) 34 VR 589.

[17] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361.

[18] Heathcote (a pseudonym) v The Queen (2014) VSCA 37.

[22] As subsequently confirmed in Totaan.

[23] R v Coffey [2003] VSCA 155; (2003) 6 VR 543, [30].