Jeffery v R

Court of Criminal Appeal (NSW)|2021-08-06|Before: Bathurst CJ, Beech-Jones J, Fagan J, Jones J

Solicitors: Aboriginal Legal Service (Applicant) Commonwealth Director of Public Prosecutions (Crown) File Number(s): 2018/91675 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 26 June 2020 Before: N Williams DCJ File Number(s): 2018/91675

Judgment

BATHURST CJ: I agree with the orders proposed by Beech-Jones J and with his reasons.
BEECH-JONES J: This is an application for leave to appeal against two aggregate sentences imposed on the applicant, Christopher Jeffrey, for offences involving the solicitation and possession of child pornography.

For counts 3 and 4, her Honour imposed an aggregate sentence of 3 years imprisonment commencing 28 February 2020 with a non-parole period of 1 year and 9 months and 19 days. For counts 1 and 2, her Honour imposed an aggregate sentence of 7 years' imprisonment commencing on 27 August 2020 with a non‑parole period of 4 years and 2 months and 10 days. The combined effective sentence resulting from the two aggregate sentences is 7 years and 6 months imprisonment commencing 28 February 2020 and expiring 27 August 2027 with an effective non‑parole period of 4 years and 8 months. The applicant is first eligible for release on parole on 5 November 2024.

The Offences

As noted, the applicant was convicted after trial. The sentencing judge made findings of fact concerning the facts of the offences which were not disputed. Given the lengthy sentence indicated for count 1 it is necessary to set out the facts of that offence as recounted by her Honour.
With count 1, on or about 6 June 2016, the applicant used a Facebook account under a false name with the initials "JW". He engaged in a conversation with a 12 year old girl, AS, which included the following exchange: "JW: Pics are all over fb AS: Ru kicking? Please don't put them on FB ill do wat ever u want. Josh. Plz tell me that your jocking Josh ill video me fingering myself JW: Ok u do the video and I won't put them all on and every time I want a video u have to do it. ... AS: Later tonight or tomorrow morning and I have school tomorrow so don't text tomorrow. ... JW: u better wan what you say when u say you will do anything I want u to do. AS: wat gtg bye JW: Are you going to do wat I want u to do ... JW: Wat are u going to do for me AS: I'm still on the laptop I cant do anything but those pictures r of my 13 year old sister how doesn't have Facebook and Im a guy. A 14 year old guy. JW: Pics going on fb AS: Y ill get u a video of someone JW: Mmmm I no ur a girl so stop lieing cause ill put all the pics on Facebook. AS: And also my mum goes through my messages so yeah but I now someone my age say that ur friends with me she's pretty then I am … AS: Not to be rude but will u ever leave me alone JW: Yes but I want heaps of videos from u and than ill go AS: I just got my phone back ill send u this one video then im going to bed deal I have school tomorrow. … AS: I don't know and I want u to send me a video of something {JW sends a picture of his exposed flaccid penis.] AS: IDK that got sent to me JW: wtf AS: That got sent to me by my friend JW: um okay maybe ur friend want to slid it in ur vagina … AS: I was going to send u a video of me peeing but I couldn't hold it in any more JW: I wanna see u finger yourself."
Thus, the applicant requested the 12 year old victim provide him with videos of herself masturbating under threat of his posting sexually explicit videos of her on Facebook. It is not surprising that the sentencing judge found that this offending was above the midrange of objective seriousness for offences of this kind.
Count 2 was committed on or about 14 or 15 June 2017. The applicant saved two completed, but not published, Facebook posts. The posts attached images of child pornography and referred to the potential to name and shame the victims. The images were described as "girl full frontal nudity prepubescent".
In relation to counts 3 and 4, on 20 June 2017, the applicant attended Coonamble Police Station with his mobile phone. The police extracted the contents of the phone. It was found to contain images and videos of child pornography. Count 3 consisted of five images of so-called category one child pornography and were either the same images or similar to those noted in relation to count 2. Count 4 consisted of two videos and an image located on another mobile phone seized in his bedroom at his home during the execution of a search warrant on 20 June 2017. Two videos depicted a girl described as "prepubescent @ 11 or 12 years old" and an image described as "girls full breast exposed prepubescent".

The Psychological Report

In a detailed sentencing judgment, her Honour described the facts of the offences and the principles applicable to sentencing for Commonwealth and State offences.
The sentencing judge then addressed in detail a psychological report produced by Ms Megan Godbee dated 15 April 2020. Some of the complaints on appeal concern the weight her Honour attached to the report in circumstances where it was not supported by sworn evidence from the applicant. At this point, eight matters should be noted about her Honour's (comprehensive) summary of the report.
First, her Honour noted that the report contained a detailed account of the applicant's upbringing. By the time he was sentenced, the applicant was 25 years of age. His father was never involved in his life and his mother re‑partnered when he was an infant. However, his step-father committed suicide when the applicant was 13 years old. The applicant discovered his body. The report noted that he also witnessed a friend commit suicide when he was 15 years old and concluded that these matters affected his mental health. The report also noted that the applicant left the family home at the age 16 to move to a new town. He reported having difficulty at school, being physically and verbally bullied throughout his schooling and struggling with his education especially having regard to a diagnosis of attention deficit and hyperactivity disorder (ADHD) and a learning disability. He reported working in casual employment in his mid-teenage years and having volunteered for the State Emergency Service. He was not working at the time he committed the offences. He had no criminal record.
Second, Ms Godbee noted the applicant's diagnosis of depression, anxiety and ADHD. Ms Godbee noted that he did not like taking medication as he felt that it exacerbated his symptoms but was taking antidepressant medication at the time of his arrest. Ms Godbee referred to a previous psychological assessment which noted that he had being diagnosed with ADHD and autism spectrum disorder which had caused difficulties in his schooling and relationships.
Third, Ms Godbee had noted that he had a history of alcohol and substance abuse including cannabis and inhaling petrol fumes.
Fourth, Ms Godbee noted that he reported attempting to kill himself on "62 occasions after suicidal thoughts began at age 13". He also reported experiencing delusions since the same age.
Fifth, Ms Godbee noted that he identified as an Aboriginal man belonging to the people of the Wellington area but had limited contact with his culture.
Sixth, Ms Godbee noted that at the time of the offence he was in a relationship. Ms Godbee noted that the applicant stated he had been accessing pornography since the age of 15 but he denied having any sexual interest in children and maintained his denial of the offences.
Seventh, her Honour noted that Ms Godbee had administered various risk assessment tools both of which placed the applicant in the above average risk of committing further sexual offences.
Eighth, her Honour noted that Ms Godbee concluded that the applicant's "index offending was precipitated by underlying difficulties with emotion and behaviour regulation, his interpersonal problems, his hyper-sexuality, sexual release being used as a coping strategy, some unusual sexual interest, and a deviant sexual attraction to prepubescent girls". The applicant relied on this part of Ms Godbee's report to support a contention that there was a causal connection between his mental illness and his offending. I will return to address this in considering ground 1 of the appeal.

The Balance of the Sentencing Judgement

After summarising Ms Godbee's report, the sentencing judge described the victim impact statement from AS. Her Honour noted that the victim had reported trying to end her life many times because of the offending, that she had struggled with personal relationships, continued to mistrust men and had difficulty attending and applying herself at school. Her Honour noted that the victim had reported that the applicant's actions had prevented her from having a normal life and that her life would "never be normal again".
After summarising the Crown and Defence submissions, her Honour then made findings on the relevant sentencing criteria. In that respect I note five matters.
First, her Honour addressed general and specific deterrence and whether the application of those factors was affected by the applicant's mental health issues as reported by Ms Godbee. As this aspect of the sentencing judgment is the focus of ground 1 of the appeal, I will return to consider it shortly. 22 Second, the sentencing judge made a finding of special circumstances having regard to the "established need for supervised rehabilitation of the offender when he is back in the community", his "substance abuse issues" and that the offender was "exposed to a disadvantaged background and to drugs and violence". Her Honour stated that, in that way, "Bugmy-type factors [ie Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37] are established to a limited degree and also inform the need for a finding of special circumstances". Her Honour also noted that the ratio of the non-parole period to the total sentence for Commonwealth matters was being set at 60%.
Third, her Honour found that there was no evidence of remorse. In relation to rehabilitation, her Honour noted Ms Godbee's assessment but also noted the applicant had a prior good character, was relatively young and had strong family support. Her Honour found that "any prospects of rehabilitation must be guarded at best".
Fourth, given the applicant's paedophiliac tendencies, her Honour found that unless he responds to rehabilitation, the applicant "will remain a danger to children in the community".
Fifth, her Honour referred to the principles of totality and accumulation and then made findings concerning the objective seriousness of each of the offences. Those findings have already been noted.

Ground 1: The applicant's mental illness

Ground 1 of the application contends that the sentencing judge erred in her approach to the applicant's "mental illness/condition".
The written submissions in support of this ground contend that the sentencing judge either misconstrued or misapplied the principles applicable to sentencing an offender affected by a mental illness or condition. The submissions identified five principles affecting the sentencing function identified by McClellan CJ at CL in DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 at [177] ("De La Rosa"). Those principles all concern the circumstance that "a person's mental health contributes to the commission of the offence in a material way". If that is the case then: first it means that the offender's moral culpability "may be reduced"; second, it may mean that the offender is an inappropriate vehicle for general deterrence; third, it may mean that a custodial sentence weighs more heavily on a person; fourth, it may reduce or eliminate the significance of specific deterrence; and fifth, conversely, it may mean that the offender represents a danger to the community. Further, in De La Rosa, McClellan CJ at CL noted that to engage these principles it need not be the case that the offender suffers from serious psychiatric illness. Instead, a mental disorder of only modest severity may still moderate the need for general or specific deterrence (at [178]).
While relying upon the entirety of Ms Godbee's report, the applicant's written submissions in support of this ground emphasised two parts of it.
First, the submissions noted those parts of Ms Godbee's report which describe the applicant's suicide attempts. Ms Godbee recommended that the applicant be treated for the presence of a psychotic disorder. The submissions noted that Ms Godbee contacted staff at the correctional centre to advise them of her concerns about his risk of self-harm and psychotic symptoms.
Second, the applicant's submissions extracted the following part of Ms Godbee's report which addresses the connection between the applicant's mental condition and his offending: "Formulation and Recommendations: From Mr Jeffery's account, he was exposed to multiple adverse experiences in childhood, including poverty and role modelling of substance abuse and other antisocial behaviours by his family members. He was physically abused by his stepfather but Mr Jeffery viewed this as appropriate and a sign of his stepfather's love, which suggests disrupted attachment to an unsafe caregiver. Mr Jeffery was then exposed to the death of his stepfather and his friend, both by suicide, which was traumatic for him. He had few opportunities for corrective experiences at school as he had academic, social and behavioural difficulties. Overall, Mr Jeffery's childhood provided him with few protective factors to buffer him from the effects of a possible attentional or autistic disorder and an underlying psychotic disorder. He also had few opportunities to learn to regulate his emotions and behaviour and was instead exposed to repeated trauma. Mr Jeffery left home at an early age and began using substances and self-harm to help him cope with his distress. It appears that Mr Jeffery's index offending was precipitated by his underlying difficulties with emotion and behavioural regulation, as well as interpersonal problems, hypersexuality, sexual release as a coping strategy, some unusual sexual interests and a deviant sexual attraction to prepubescent girls. Overall, Mr Jeffery presents as an unwell young man with difficulties with substances, mental health, relationships and offence-specific treatment needs." (emphasis added)
As noted above, the sentencing judge addressed this topic under the heading "general and specific deterrence". The relevant part of her Honour's sentencing judgment was as follows: "I have referred to s 3A [of the Sentencing Act] which sets out the purposes for which a Court may impose a sentence on an offender. Section 3A(b) includes both general and specific deterrence. General deterrence looms large in matters of this nature which are committed covertly and are difficult to detect. The legislation is clearly aimed at protecting children from predatory sexual behaviour. In spite of what the defence submit are good reasons for this offender not being an appropriate vehicle for either general or specific deterrence, I am of the view that overall the report of Ms Godbee must be given less weight for reasons as set out in R v Qutami and R v Niketic. Most of the history given by the offender is uncorroborated save for a limited amount of material which confirms some suicidal ideation in the past but not to the limit as explained by the offender. Ms Godbee noted that there was confusion with the history given by the offender about his prior relationships. I find that there are limitations on the quality of the information provided by the offender as reported by Ms Godbee. I am of the view that the offender does have mental health issues but I am not persuaded that there is a causal connection between the offending behaviour and the mental health of the offender. On the contrary, I am of the view that the offending was motivated by a desire for sexual gratification of the offender's paedophilic inclinations. The Facebook exchange between the offender and AS in June 2016 exposes the mindset of the offender. It is purposeful, it is callous, it is determined and it is predatory in nature. Therefore, as I do not find a causal connection between the offender's mental health and the offending, general deterrence remains an important factor in the sentence structure. Moreover, having regard to the offender's lack of insight into the offending behaviour and his ongoing denial of the offences specific deterrence must remain relevant to the overall structure of the sentence." (emphasis added)
The applicant's written submissions identified a number of alleged errors in this passage. First, it was contended that, although her Honour was entitled to give the report of Ms Godbee less weight for the reasons set out in R v Qutami [2001] NSWCCA 353 at [58], ie because it was not supported by the applicant's evidence on oath, her Honour's statement that "most" of the history given by the applicant was uncorroborated was "not an accurate reflection of the evidence before the court".
The characterisation of some part of the sentencing judgment as being "not an accurate reflection of the evidence before the court" does not appear to invoke any form of error identified in House v R (1936) 55 CLR 501 at 504 to 505. In any event, it was open to the sentencing judge to characterise the history given by the offender in that way.
In support of his contention, the applicant submitted that her Honour overlooked various character references provided by members of his family. Earlier in the sentencing judgment her Honour accepted that those references informed the Court of a number of matters, specifically that he was bullied as a child, that he had learning difficulties, that he craved acceptance from his peers, that he had poor social skills, found it difficult to form healthy relationships, that his father left the family prior to his birth, that his stepfather was abusive, that he witnessed his stepfather's suicide, that he is a respectful and helpful member of the community, he suffers poor mental health and has self-harmed in the past.
I do not accept that her Honour overlooked the effect of the references, especially in circumstances where her Honour specifically listed their effect in the sentencing judgment. However, the references did not provide evidence of every salient feature of the applicant's background which was referred to by Ms Godbee. For example, the references did not describe his history of substance and alcohol abuse, his history of hallucinations, the full extent of his difficulties at school or the frequency of his suicide attempts.
The applicant's written submissions also contended that her Honour's statement that there was a "limited amount of material which confirms some suicidal ideation in the past but not to the limit as explained by the offender to Ms Godbee did not reflect the evidence before the court". Again, such a formulation does not reflect any form of House v R error. In any event, her Honour was correct. The written submissions contend that there was corroboration for the account given by Ms Godbee of there being 62 suicide attempts in the form of a health risk assessment conducted on 29 February 2020, the day after he entered custody. Thus it was contended: "At page 9 to 11 of [the health risk assessment] the applicant is recorded as saying he had 'cut his wrists with a piece of glass a day ago and has made 40 previous attempts'. That number was indeed less than the account of 62 suicide attempts recorded in the report of Ms Godbee. However, it was submitted the court should view the applicant's accounts as estimates only and that both estimates reflect a report of significant history of self-harm."
It is correct that the Justice Health records contain a report of a discussion with the applicant in which he had said he made 40 previous attempts at self-harm. However, the assessment also records that he was asked if he ever tried to end his life. The applicant is recorded as saying he had tried to end his life in the previous month and that he had made two previous attempts. Thus, consistent with the sentencing judge's analysis, he had told Justice Health of three suicide attempts whereas Ms Godbee reported him describing 62 suicide attempts.
Second, the applicant contended that her Honour erred in stating that her Honour was "not persuaded that there is a causal connection between the offending behaviour and the mental health of the offender". The applicant contended that this error in part flowed from the alleged error of the sentencing judge in stating that less weight should be given to Ms Godbee's report because the applicant's account was largely uncorroborated, a contention that I have rejected. The submissions also referred to Ms Godbee's opinion extracted above, specifically her conclusion that the offending was "precipitated by his underlying difficulties with emotion and behavioural regulation". It was then submitted: "In light of the balanced and unbiased manner in which Ms Godbee expressed her opinions it is submitted they should be accepted. The effect of the opinion was the applicant's 'underlying difficulties' were a factor causally connected to the offending. The offender's moral culpability should have been seen as reduced accordingly."
Again, this submission does not identify any form of House v R error. Instead, it appears to be premised on an assumption that this Court's role is to make its own primary findings of fact regardless of the facts found by the sentencing judge. It sufficies to state that the relevant approach of this Court to a complaint of error of this kind was stated by N Adams J in Craft v R [2021] NSWCCA 131 ay [47], namely, by determining "whether it was open to the sentencing judge to conclude that there was insufficient information before them to find the causal link urged by the applicant".
Ms Godbee's evidence did provide a factual foundation for a finding of a causal connection, but her Honour was not obliged to accept it. To the extent that her Honour's reasons for not so finding included the characterisation of the history given by the offender as uncorroborated, then contrary to the applicant's submissions it was open for her Honour to so conclude. Further, the critical reason for her Honour differing from Ms Godbee is the fact that her Honour characterised the Facebook exchange as "purposeful…callous…determined … and … predatory". Her Honour had the benefit of hearing the evidence at the trial. Her Honour considered that the nature of the offending was inconsistent with it being the result of some form of unregulated and spontaneous emotional or behavioural response to his various difficulties. Instead, her Honour characterised his conduct as deliberate and considered. That assessment was well open to her Honour. In those circumstances, no error is revealed by her Honour's refusal to find a causal connection between the offending behaviour and the mental health of the offender.
In oral argument, counsel for the applicant sought to expand upon this by asserting that her Honour assumed that, by finding that the offence was motivated by a desire for sexual gratification of the applicant's paedophilic inclinations, that was somehow inconsistent with it also being the product of the mental health issues. The basis for her Honour's finding has been explained. It did not involve treating those two matters as necessarily mutually exclusive.
In both oral argument and in the written submissions, it was further contended that, even if there was no error in failing to find a connection between the applicant's mental health condition and his offending, there should have been a "more favourable consideration of several of the principles described in De La Rosa". In particular, it was contended that, given his long-standing learning difficulties, ADHD and trauma related symptoms consistent with PTSD, it meant he was an unsuitable vehicle for general deterrence and the significance of specific deterrence was reduced.
Again, as formulated, these contentions do not appear to reflect any form of House v R error. They appear to invite this Court to determine for itself to what extent general and specific deterrence should be considered in relation to the applicant's sentence. However, that is not this Court's function. If it had been the case that the sentencing judge had acted on the erroneous basis that, once the existence of a causal connection had been rejected, there was no scope to reduce the consideration given to general and specific deterrence, then that may have established House v R error. However, I do not understand her Honour to have so reasoned. To the contrary, I read the above extract as her Honour accepting that, to an extent general and specific deterrence were of less significance, but nevertheless finding that they "remain relevant" to the sentencing process. Such reasoning does not reveal House v R error.
Lastly, it was submitted that the sentencing judge failed to address a submission that due to the applicant's mental illness and other conditions, custody would be more onerous for him than the average prisoner. Her Honour specifically noted a submission to that effect in the sentencing judgment. Although it was not specifically referred to in the above extract, I am not persuaded that her Honour failed to have regard to that matter.
I would reject ground 1.

Ground 2: Manifest excess

Ground 2 of the application contends that the sentence is manifestly excessive. I will treat the ground as directed to each aggregate sentence as well the effect of both sentences combined.
The relevant statement of principle concerning a contention that a sentence is manifestly excessive was stated in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59] (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) ("Hili"): "….. And, as the plurality pointed out … in Wong v The Queen [(2001) 207 CLR 584; [2001] HCA 64; at [58]; "Wong"], appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate 'is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases'. Rather, as the plurality went on to say … in Wong [at [58]], '[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons'. But, by its very nature, that is a conclusion that does not admit of lengthy exposition."
In his written submissions, the applicant referred to the total effective sentence of the two sentences imposed on him as being 7½ years with a non-parole period of 4 years and 8 months. He noted the effective non-parole period imposed upon him was approximately 62% of the total term.
The submissions referred to three supposedly comparable cases which the Crown had referred the sentencing judge to. The submissions accept the limited role that such comparative cases may play but nevertheless contended that they provide some support for the contention that the sentence imposed in this case was excessive. One of those cases was Tector v R [2008] NSWCCA 151 where this Court imposed three concurrent sentences of 8 years' imprisonment for an offence of using a carriage service to transmit a communication to a person under the age of 16 years with the intention of procuring that person to engage in sexual activity contrary to s 474.26(1) of the Criminal Code 1995 (Cth) (the "Code"). Like an offence under s 474.19(1), the maximum penalty was 15 years. It is unnecessary to describe the offences in any detail, other than to note that they were not as serious as those committed by the applicant as they did not involve any form of blackmail of the victim. The combined non-parole period for the three offences was 5 years.
The second of the three cases was R v Asplund [2010] NSWCCA 316 which involved offences under s 474.27(1) of the Code for which there was a maximum penalty of 12 years. The total effect of the two sentences imposed required the offender to serve 7 years imprisonment with a non-parole period of 4 years. Given the differences in maximum penalty for the offence and the sentence imposed, it also provides no assistance to the applicant. The same observation applies in relation to the third case referred to namely R v Tahiraj [2004] QCA 353.
Beyond these three cases, the applicant relied upon his strong subjective case including the sentencing judge's acceptance that Bugmy principles were engaged, his mental health condition, his lack of criminal history and his family support. It can be accepted that each aggregate sentence and their combined effect appear relatively stern when applied to a 25‑year‑old offender with no prior criminal history and personal and mental health difficulties. However, when regard is had to the level of criminality displayed, especially by count 1, I am not persuaded that any of them are manifestly excessive.
I would reject ground 2.

Proposed Orders

I propose the following orders: (1) The application for leave to appeal against sentence be granted; (2) The appeal be dismissed.
FAGAN J: I agree with Beech-Jones J.

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: 10 September 2021

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