[2017] NSWCCA 301
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1
[2010] NSWCCA 194
Director of Public Prosecutions (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428
[2017] HCA 41
Director of Public Prosecutions v SJK and GAS [2002] VSCA 131
Douar v R (2005) 159 A Crim R 154
[2005] NSWCCA 455
Fedele v R (2015) 257 A Crim 78
Source
Original judgment source is linked above.
Catchwords
[2017] NSWCCA 301
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1[2010] NSWCCA 194
Director of Public Prosecutions (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428[2017] HCA 41
Director of Public Prosecutions v SJK and GAS [2002] VSCA 131
Douar v R (2005) 159 A Crim R 154[2005] NSWCCA 455
Fedele v R (2015) 257 A Crim 78[2015] NSWCCA 286
Ghalbouni v R [2020] NSWCCA 21
Gilshenan v R [2019] NSWCCA 313
Hili v The Queen (2010) 242 CLR 520[2010] HCA 45
Kentwell v The Queen (2014) 252 CLR 601[2014] HCA 37
Martin v R [2019] NSWCCA 197
Meadows v R [2017] VSCA 290
Minehan v R (2010) 201 A Crim R 243[2010] NSWCCA 140
Puhakka v R [2009] NSWCCA 290
R v Asplund (2010) 216 A Crim R 48[2010] NSWCCA 316
R v Borkowski (2009) 195 A Crim R[2009] NSWCCA 102
R v Costello [2011] QCA 39
R v Dinh (2010) 199 A Crim R 573[2010] NSWCCA 74
R v Engeln [2014] QCA 313
R v Fuller [2010] NSWCCA 192
R v Gavel (2014) 239 A Crim R 469[2014] NSWCCA 56
R v Gent (2005) 162 A Crim R 29[2005] NSWCCA 370
R v McGrath (2006) 2 Qd R 58
[2005] QCA 463
R v Porte (2015) 252 A Crim R 294
[2015] NSWCCA 174
R v Thomson
R v Houlton (2000) 49 NSWLR 383
[2000] NSWCCA 309
Rampley v R [2010] NSWCCA 293
The Queen v Pham (2015) 256 CLR 550
[2015] HCA 39
Veen v The Queen (No. 2) (1988) 164 CLR 465
[1988] HCA 14
Xiao v R (2018) 96 NSWLR 1
[2018] NSWCCA 4
Yildiz v R [2020] NSWCCA 69
Zreika v R (2012) 223 A Crim R 460
Judgment (7 paragraphs)
[1]
The Applicant's Subjective Circumstances
As mentioned earlier, the Applicant was 18 years of age at the time of the offences and 21 years old at the time of sentence in June 2019. His 22nd birthday is in early May 2020.
The Applicant has no prior criminal history.
A sentencing assessment report dated 27 November 2018 was tendered by the Crown at the sentencing hearing.
The sentencing assessment report noted that the Applicant was then working in the hospitality industry on a casual basis and was residing with his parents and siblings, an environment which the Applicant described as being stable and supportive.
The Applicant told the Community Corrections Officer that he attributed his offending behaviour to his deteriorated mental health. The Applicant reported that he initially used social media as a platform to make friends as he felt disconnected from those around him and that, despite knowing the ages of the victims and that he was committing an offence, he reported feeling as though he was unable to stop. He stated that "At the time of the offences he felt isolated and unloved which led to moods of depression" but that, since the commission of the offences, he has engaged with psychological intervention to address these underlying issues.
The Applicant expressed his willingness to continue engagement with psychological intervention. Although the Applicant had been assessed as a low risk of reoffending according to the Level of Service Inventory-Revised instrument, Community Corrections had overridden that risk assessment to T2/Medium-High due to the Applicant being in the "above average risk" range of the Static-99R assessment.
A case note report annexed to the sentencing assessment report indicated that, should the Applicant receive a custodial sentence, it was recommended that he be referred for assessment of his eligibility and his suitability for a custody-based treatment program, although it was noted that he would require a minimum period of two years to complete most custody-based programs.
Tendered in the defence case on sentence were reports of the Applicant's initial treating psychologist, Klaudia Gebert, dated 2 March 2018 and a report dated 13 May 2019 from John McQuillen, psychologist, who took over as the Applicant's treating psychologist from April 2019. Further, a number of medical reports and hospital treatment notes concerning the Applicant were tendered.
In addition, tendered in the defence case on sentence were letters from the Applicant's mother, brother and father which provided a family history and a detailed account of the Applicant's background and health issues.
The Applicant's mother stated that he had not been active on social media since his arrest on 27 March 2017.
She gave an account of the Applicant's experiences of being bullied whilst at school and the negative consequences of those experiences on him. She described the Applicant as a person who was "always a little awkward socially" who befriended persons with disabilities and was "considered uncool" by other students as a result (T7, 20 May 2019). She confirmed medical reports which indicated that the Applicant had attempted suicide. The Applicant's mother understood that her son had effectively tormented the victims and had to be punished for his offences.
Medical reports and discharge summaries tendered at the sentencing hearing confirmed that the Applicant had made a suicide attempt in December 2014 (AB168-173).
Documents produced on subpoena by the high school which the Applicant attended also confirmed a history of anxiety and stress in 2013 and 2014 (AB178-188).
The Applicant's mother gave evidence at the sentencing hearing. The Applicant did not give evidence at the hearing.
She confirmed that the Applicant had engaged with psychological counselling and therapy since April 2017. She stated that the Applicant was "incredibly remorseful" and that he "suffered deep shame" for what he had done (T8, 20 May 2019).
Under cross-examination by the Crown, the Applicant's mother confirmed that he was living at the family home during the period of his offending. She said she had been quite unaware of his offending conduct.
The Crown asked the Applicant's mother about her knowledge of events which occurred when he was 14 years old which gave rise to a police warning. This was referred to in Mr McQuillen's report (page 3) where the Applicant "reported at the age of 14 he had begun requesting girlfriends send him images of themselves over 'snapchat' and that he had been warned by NSW Police for the behaviour at the time". The Crown asked the Applicant's mother (T9-10, 20 May 2019):
"Q. But you had been aware, at that point, that he'd done similar things when he was 14 years of age, is that right?
A. I, I knew that he was warned because of inappropriate communication, yeah.
Q. Were you aware that a number of young girls, and three in fact had made complaints to police concerning him trying to obtain naked photographs of them using the promise of concert tickets or some reward?
A. Only with the initial, when he was younger, not after that.
Q. Yes, when he was 14 is ---
A. Yes, I was aware of that.
Q. That's what my question is, you were?
A. Yes.
Q. You were aware of the police warning that resulted?
A. Yes.
Q. Did you seek any treatment on behalf of your son for that behaviour at the time?
A. I'm just, it's a bit of blur, but I believe he, he was seeking counselling with the, a gentlemen by the name of Andy Sexton, who was the school counsellor at that time and yes, he had made quite a bit of progress with him until this particular counsellor had left the school that Orion was attending.
Q. No outside school counselling privately?
A. No.
Q. Did you monitor his online use in any way in the four years between the warning and the offences committed before the Court?
A. Sorry, could you repeat that?
Q. Sorry, I'll take it back. You mentioned in your evidence in chief today, that you're now monitoring his online behaviour?
A. Yes.
Q. Did you monitor that online use at any time between the warning and now?
A. No.
Q. If in the event your son was returned to your home?
A. Yes.
Q. What would you do if your monitoring now revealed new offending?
A. Sorry, I couldn't understand the ---
Q. If as a result, if he was to return home after court today ---
A. Yes.
Q. --- for the foreseeable future?
A. Yes.
Q. And your monitoring of his online conduct revealed new offending, what would your actions be?
A. I would need that dealt with immediately, because it would say that there's a bigger problem?
Q. You'd report it to the authorities?
A. Absolutely, I would.
Q. You've mentioned that you've observed in your son that he's experiencing an incredible deep level of shame over the current offence?
A. Yeah.
Q. Did you observe this on the last occasion?
A. When he was 14, no. It wasn't long lasting, it was, it was short lived I think. I saw that initially, but as time progressed ---
Q. It ameliorated?
A. --- he was 14, it, you know, yeah."
The psychological report of Ms Gebert dated 2 March 2018 recounted her treatment of the Applicant since a referral by his general practitioner following his arrest in March 2017. Ms Gebert expressed a provisional diagnosis of persistent depression disorder (dysthymia) and generalised anxiety disorder as well as borderline personality disorder (page 4). As Ms Gebert had left the clinic where she had been treating the Applicant, she noted that his treatment was to be assumed by another psychologist.
The detailed report of Mr McQuillen dated 13 May 2019 played a significant part at the sentencing hearing and in her Honour's sentencing remarks.
A number of specific questions were posed to Mr McQuillen for comment. In answer to a question whether the Applicant met any formal diagnosis of a mental health condition, Mr McQuillen said (page 7):
"In my clinical opinion I believe Mr Kannis likely met criteria for a major depressive disorder in accordance with DSM-5 criteria at the time of the offences based on his reports, hospital records, and treatment history. Mr Kannis' current test scores and reports are not consistent with a clinical disorder however I do suspect there is a degree of impression management and this is consistent with his responses on the PAI and DASS21. I believe his depressive disorder remains not fully treated and note he exhibits Borderline Personality traits given his prior reckless behaviours, history of self-harm, and the menacing or threatening nature of some of the exchanges with victims in the offences now before the court."
In response to a question whether the Applicant was sexually aroused from his offending, Mr McQuillen replied (page 7):
"The detail of sequence 4 is consistent with sexual arousal. Some of the detail in other sequences would also be consistent with Mr Kannis' reports of seeking and needing approval from his victims and his behaviours were likely motivated by both sexual arousal and approval seeking. The behaviours also show a disregard for the psychological impact upon the victims consistent with Mr Kannis reports of being engaged in relationships for validation and approval with little insight into the experience of his partner. This lack of empathy and difficulty understanding the emotions of others would also be consistent with a borderline personality disorder."
Mr McQuillen did not consider that the Applicant had any romantic motivations for his behaviour.
In response to a question as to whether the Applicant was "addicted" to his sexualised offending behaviour, Mr McQuillen replied (page 7):
"The patterns of behavior in all sequences are similar and follow a consistent pattern or formula designed to obtain sexually explicit material through the use of bribery and coercion. The behaviours could be considered somewhat compulsive in nature designed to address persistent negative obsessions about self and gaining attention and validation from other. They could also be hypothesized as being addictive in the sense that they were designed to provide relief and pleasure from severe and persistent psychological distress about self, others and the future."
In answer to a question as to whether the Applicant's conduct involved the exercise of power and control over the victims (given the Applicant's statement that he felt that he had been a victim of bullying during his childhood), Mr McQuillen replied (page 7):
"In my professional opinion Mr Kannis' behaviours are consistent with attempting to exert power and control over his victims. It is reasonable to expect that Mr Kannis' experiences of bullying and harassment in his schooling and workplaces would have likely led to the formation of a sense of vulnerability and need to protect himself from his perceived weaknesses and from others, especially given his reports that he was on some occasions physically injured. The Schemas identified by Ms Gebert demonstrate he developed negative blueprints about himself and his behaviours designed to gain approval and validation are maladaptive coping strategies for those blueprints. His use of bribery and coercion with his victims may represent desperate and maladaptive attempts to cope with his Schemas and could be considered over compensatory strategies designed to control others to address his concerns about self."
In answer to a question as to whether there was any nexus between his diagnoses and the Applicant's offending, Mr McQuillen replied in the affirmative and continued (page 8):
"As I have already noted in this report, I believe that Mr Kannis' behaviours represent maladaptive attempts to cope with his system of negative beliefs about self and avoidance through pleasure seeking."
Mr McQuillen recounted the extended course of treatment undertaken with Ms Gebert in 2017 and 2018 and expressed the view that the Applicant required further psychological treatment.
Mr McQuillen applied the Static-99R risk assessment tool and concluded that the Applicant was placed in the moderate-high risk category relative to other male sexual offenders (page 8). Mr McQuillen elaborated upon the Applicant's risk of reoffending (pages 8-9):
"Mr Kannis' score was elevated by his young age, never having lived with a sexual partner, and having unrelated and stranger victims. I believe his score somewhat overestimates his level of risk, which I expect to be more the low-moderate range in practical terms. The actuarial assessment does not account for dynamic factors, and the improvement in his mental health over time likely lowers his risk. It is also worth noting that one of the elevations was due to the 'stranger victim question'. It should be noted in his circumstances that the stranger victim was in fact someone introduced to him by someone that he already knew. If this were considered to be a known victim the score would fall into the low-moderate range."
Mr McQuillen concluded his risk assessment in the following way (page 9):
"In my clinical opinion there is a nexus between Mr Kannis' mental health history and the charges currently before the court and reducing his risk of recidivism will require addressing his mental health needs. Without further treatment I believe he will remain at risk of recidivism."
Mr McQuillen noted that the Applicant "has a long history of bullying throughout his childhood that has had a significant impact upon his psychological development leading to the formation of maladaptive schema and maladaptive coping responses" (page 9). He noted that the Applicant reported "a generally supportive family life", although there were some interpersonal problems with members of the family (page 9). Mr McQuillen expressed the following conclusions and recommendations in his report (page 9):
"Mr Kannis is a 21 year old male who reports a long history of experiencing bullying and other threatening events throughout his life that have had a significant impact on his psychological development. He has developed a negative belief system about self and maladaptive blueprints about himself, others, and the world generally that have led to the formation of maladaptive coping responses to meet his emotional needs. In my opinion there is a direct link between his mental health and criminal offending behaviours and he will remain a low-moderate risk of recidivism unless he develops adaptive responses for meeting his emotional needs. Although his reports and current test scores suggest that his depressive disorder has remitted I believe it is likely only due to his focus upon the current forensic matter and I expect a reemergence of clinical symptoms without further treatment once his forensic matter is finalised. His results on the PAI support my opinion.
In my professional opinion, the most crucial factor to reducing Mr Kannis' risk of recidivism is the treatment of his mental health."
If the Court imposed a custodial sentence, Mr McQuillen made the following recommendation (page 9):
"If the court were to convict Mr Kannis and order a custodial sentence it is recommended the court make provision for the treatment of his mental health and he be referred to the young offenders program, assessment for the sex offenders program, and the Corrective Services NSW psychology service for the provision of psychological therapy."
[2]
The Sentencing Hearing and Sentencing Remarks
Following the hearing on 20 May 2019, the sentencing Judge came to sentence the Applicant on 4 June 2019.
It is appropriate to set out parts of the sentencing remarks in this judgment. Submissions were made at the hearing in this Court by reference to the structure and content of the sentencing remarks. Her Honour addressed, in some detail, the objective and subjective factors emerging from the case and the balancing process required in the exercise of instinctive synthesis in passing sentence.
The sentencing Judge commenced with a description of the offences and then findings of fact based upon the Agreed Statement of Facts (ROS1-13, 4 June 2019).
Her Honour then recounted Victim A's victim impact statement and said (ROS14):
"The Crown does not rely on the victim impact statement to elevate the criminality beyond the elements of the offence itself. Instead, the Crown puts forward the victim impact statement so that the Court can understand the impact of the offence on the victim. It goes without saying, that regrettably, this is the typical harm that the Court sees from these sorts of offences, particularly on young victims."
The sentencing Judge then returned to consider the objective seriousness of the offences, noting before undertaking that task the following matters (ROS15):
"When considering any sentencing exercise, the Court must consider the general seriousness of these offences. That is, Parliament has provided maximum penalties as the statutory guideposts that indicate the general gravity with which these offences are regarded. Necessarily, these offences have the real potential to create victims out of children.
As noted by the Crown in written submissions, there generally must be consideration of the sentencing purpose of general deterrence. That is, to send a message to the community, that we cannot tolerate these offences. The reasons are obvious. These offences have the capacity to sexualise children and cause damage long into their lives. These offences have the capacity to create devastating and long lasting disability, mentally, for these people who suffer these offences."
Her Honour then turned to the question of objective seriousness noting that it was necessary "to look specifically at the offences before the court to determine where they sit within the spectrum of gravity considered by the offence provisions" (ROS15).
[3]
Ground 1 - Suggested Error in Failing to Consider Whether an Alternative to Fulltime Imprisonment was Available for the Commonwealth Offences
Applicant's Submissions
Mr Ginges, counsel for the Applicant, acknowledged that it was open to the sentencing Judge to form the view that the imprisonment threshold had been crossed for the purpose of these offences, but submitted that the sentencing Judge had not considered the question whether alternatives to fulltime imprisonment were appropriate in this case for the Commonwealth offences.
He submitted that it was necessary for the sentencing Judge to approach the question of sentence in accordance with the three-stage approach referred to in Douar v R (2005) 159 A Crim R 154; [2005] NSWCCA 455 at [69]-[72]. Having determined that imprisonment was appropriate, it was submitted that it was necessary for her Honour to consider whether an alternative to fulltime imprisonment was appropriate, then the form of imprisonment to be utilised and then finally the length of the sentence. It was submitted that the approach referred to in Douar v R has been applied concerning Commonwealth sentencing as well: Fedele v R (2015) 257 A Crim 78; [2015] NSWCCA 286.
It was submitted that the approach adopted by the sentencing Judge (ROS36 at [187] above) indicated a failure to consider these intermediate steps in determining whether a sentence of fulltime imprisonment was appropriate for the purpose of s.17A Crimes Act 1914 (Cth).
Whilst acknowledging that an intensive correction order was not available as a sentencing alternative (as it was excluded by s.67(1)(b) Crimes (Sentencing Procedure) Act 1999 (NSW)), it was submitted that it was open to the sentencing Judge to consider for the Commonwealth offences the use of a suspended sentence under s.20(1)(b) Crimes Act 1914 (Cth).
Counsel submitted that it was not enough for her Honour to merely state, for the purpose of s.17A Crimes Act 1914 (Cth), that a sentence of imprisonment may only be imposed if it is the only appropriate outcome with that statement not engaging the further steps required for the purpose of excluding the availability of a suspended sentence.
The Applicant submitted that the sentencing Judge had erred so that the first ground of appeal should be upheld.
Crown Submissions
The Crown submitted that the approach reflected in the first ground of appeal does not sit comfortably with the manner in which the District Court sentencing hearing was conducted by different counsel appearing for the Applicant. It was submitted that the divergence between the approach adopted at first instance and in this Court was such as to attract application of the principles in Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 at [81]-[82].
[4]
Ground 2 - Claim that Sentencing Judge Failed to Give Any Weight to the Utilitarian Value of the Applicant's Guilty Pleas in the Sentences Imposed for the Commonwealth Offences
Applicant's Submissions
Counsel for the Applicant submitted that, in accordance with Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4, the sentencing Judge ought to have allowed a discount for the Applicant's pleas of guilty for the Commonwealth offences so as to reflect the utilitarian value of those pleas. It was submitted that the approach adopted by the sentencing Judge did not demonstrate that weight had been given to the utilitarian value of the Applicant's pleas of guilty to the Commonwealth offences (see [179] above).
It was submitted that her Honour did not address the basis for the discount for the Commonwealth offences so that it was not apparent that her Honour had calculated the discount by reference to the utilitarian value of the pleas for the Commonwealth offences or upon some other basis.
Crown Submissions
The Crown submitted that the approach adopted by the sentencing Judge was based upon the common position adopted by counsel for the Applicant and the Crown at first instance, that a 25% discount was appropriate to reflect the utilitarian value of the pleas of guilty for both the State and Commonwealth offences. In support of this submission, the Crown referred to submissions made at the sentencing hearing.
The Crown submitted that the sentencing Judge determined the discount correctly, and in the manner reflected in a common submission of the parties, and that no error had been demonstrated in this respect.
Decision
It may be accepted that, since the decision of this Court in Xiao v R, a sentencing Judge should have regard to the utilitarian value of pleas of guilty for Commonwealth offences, thereby taking into account similar considerations to those applicable when passing sentence for offences under New South Wales law.
When sentencing for Commonwealth offences, the utilitarian value of a plea of guilty is an objective factor to be considered under s.16A(2)(g) Crimes Act 1914 (Cth) and preferably quantified: Xiao v R at [280]; Bae v R [2020] NSWCCA 35 at [57]. In determining the utilitarian value of a plea of guilty for a Commonwealth offence, guidance is provided by decisions concerning State offences including R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309 and R v Borkowski (2009) 195 A Crim R; [2009] NSWCCA 102: Bae v R at [52]-[55].
[5]
Ground 3 - Claim of Error by Inappropriately Sentencing the Applicant "Consistently with Other Offence of Like Kind" Thereby Failing to Give Effect to Findings Made by the Sentencing Judge that the Applicant's Moral Culpability was Reduced and that the Sentencing Purposes of Specific and General Deterrence had been Moderated in the Present Case
Applicant's Submissions
Counsel for the Applicant submitted that the sentencing Judge had erred in relying upon other sentencing decisions referred to by the Crown in the manner contained in the extract from the sentencing judgment at [186] above.
It was submitted that her Honour had determined erroneously to "ensure" that the Applicant was sentenced consistently with these other sentencing decisions despite findings made with respect to the Applicant's reduced moral culpability and the lesser need for specific and general deterrence in the circumstances of the case.
It was submitted that her Honour had erred by utilising the sentencing decisions which accompanied the Crown submissions and ensuring that "the sentencing outcome here falls within the type of sentencing range that arises from a consideration of cases referred to the court".
Counsel submitted that consideration of the cases contained in the Crown schedule served to distinguish those cases from the present in a number of respects. It was submitted that none of those cases involved an 18-year old offender with mental health conditions of the type revealed in the present case.
It was submitted that, although her Honour had made a number of findings favourable to the Applicant with respect to moral culpability and the impact of his mental health condition, these findings were not implemented in the sentencing outcome because her Honour erroneously had regard to a sentencing range emerging from significantly different cases.
Crown Submissions
The Crown submitted that the Applicant sought to place inappropriate weight on the use of the words "ensure" and "ensures" as they appeared in one part of a lengthy sentencing judgment. It was submitted that the emphasis placed on these words by the Applicant was misplaced when considering the context in which they were used by her Honour in the judgment.
The Crown submitted that the sentencing Judge was mindful that there were limitations upon the usefulness of comparable cases and that this was particularly so given the findings here with respect to the Applicant's age, reduced moral culpability and mental health conditions. The Crown noted, as well, that no submission had been made by the Applicant's counsel at first instance with respect to the use of the other sentencing decisions.
[6]
Resentencing the Applicant
As error has been demonstrated, it is necessary for this Court to exercise its own independent sentencing discretion for the purpose of determining whether lesser sentences should be imposed under s.6(3) Criminal Appeal Act 1912 (NSW): Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [43].
For the purpose of resentencing, the Applicant relied upon his affidavit sworn 26 January 2020 and the affidavit of his solicitor, Andrew Luong, sworn 18 March 2020.
It seems clear that her Honour's recommendation that the Applicant enter into the Young Offenders' Program, whilst in custody, has not been implemented.
The Applicant's affidavit stated that he had sought psychological or psychiatric counselling since entering custody on 4 June 2019 without success. He has experienced health issues whilst in custody. The Applicant has been subjected to threats in custody, which revive memories of bullying which he experienced at school.
The Applicant is concerned that he has not had the opportunity to undertake psychological counselling which, as her Honour found, had been highly beneficial to him between April 2017 and June 2019.
The Applicant has been employed in custody in the print shop as a graphic designer.
Mr Luong's affidavit annexes documents which indicate that, on 4 September 2019, the Applicant was assessed for and referred to participate in the Custody Based Sex Offender Program. However, on 12 February 2020, the referral was reviewed and it was noted that there was insufficient time remaining for the Applicant to complete that program.
As a result, the Applicant has not been able to continue, in any form, psychological counselling which had played a significant part in his path towards rehabilitation at the time he was sentenced on 4 June 2019.
The findings of the sentencing Judge concerning the objective gravity of the offences were not challenged in this Court and should be adopted for the purpose of resentencing.
The Applicant's youth and immaturity are significant factors on sentence and his moral culpability was reduced by the mental condition found to exist on sentence. These aspects also served to reduce the significance to be given on sentence to specific and general deterrence: Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].
[7]
Amendments
11 May 2020 - [316] - Corrected formatting.
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: 11 May 2020
ture 18-year old offender - applicant's moral culpability reduced and lesser role for specific and general deterrence - fulltime custodial sentence nevertheless appropriate - applicant resentenced to imprisonment to be released after 11 months on recognizance release order
Legislation Cited: Crimes Act 1914 (Cth)
Criminal Code (Cth)
Children (Criminal Proceedings) Act 1987 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Criminal Appeal Act 1912 (NSW)
District Court Rules 1973 (NSW)
Crimes Act 1958 (Vic)
Cases Cited: Adamson v R (2015) 47 VR 268; [2015] VSCA 194
Bae v R [2020] NSWCCA 35
Cooper v R [2012] VSCA 32
Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301
Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
Director of Public Prosecutions (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428; [2017] HCA 41
Director of Public Prosecutions v SJK and GAS [2002] VSCA 131
Douar v R (2005) 159 A Crim R 154; [2005] NSWCCA 455
Fedele v R (2015) 257 A Crim 78; [2015] NSWCCA 286
Ghalbouni v R [2020] NSWCCA 21
Gilshenan v R [2019] NSWCCA 313
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Martin v R [2019] NSWCCA 197
Meadows v R [2017] VSCA 290
Minehan v R (2010) 201 A Crim R 243; [2010] NSWCCA 140
Puhakka v R [2009] NSWCCA 290
R v Asplund (2010) 216 A Crim R 48; [2010] NSWCCA 316
R v Borkowski (2009) 195 A Crim R; [2009] NSWCCA 102
R v Costello [2011] QCA 39
R v Dinh (2010) 199 A Crim R 573; [2010] NSWCCA 74
R v Engeln [2014] QCA 313
R v Fuller [2010] NSWCCA 192
R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56
R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370
R v McGrath (2006) 2 Qd R 58; [2005] QCA 463
R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174
R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
Rampley v R [2010] NSWCCA 293
The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39
Veen v The Queen (No. 2) (1988) 164 CLR 465; [1988] HCA 14
Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4
Yildiz v R [2020] NSWCCA 69
Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44
Texts Cited: ---
Category: Principal judgment
Parties: Orion Kristopher Kannis (Applicant)
Regina (Respondent)
Representation: Counsel:
Mr KD Ginges (Applicant)
Mr LA Fernandez (Respondent)
Her Honour stated that the sentences for Sequences 3, 4 and 9 were "indicative sentences" for the purpose of an "aggregate sentence" of imprisonment for two years and six months commencing on 4 June 2019 with the Applicant to be released on 3 September 2020, after serving 15 months' imprisonment upon him entering into a recognizance in the sum of $1,000.00 to be of good behaviour for three years.
The sentencing Judge recommended that the Applicant undergo psychological counselling as part of his recognizance and that, whilst in custody, he be entered into the Young Offenders' Program.
The hearing was conducted in this Court upon the basis that aggregate sentencing (under s.53A Crimes (Sentencing Procedure) Act 1999 (NSW)) applies to State offences only and that there is no provision for aggregate sentencing for Commonwealth offences. Rather, where sentences of imprisonment for several Commonwealth offences do not exceed three years in the aggregate, and the offender is not already serving a sentence for a Commonwealth offence, a sentencing court must make a recognizance release order in respect of those sentences and must not fix a non-parole period: s.19AC(1) Crimes Act 1914 (Cth).
The parties approached the appeal upon the basis that the total effective sentence for the Commonwealth offences and the State offence comprised imprisonment for two years and six months commencing on 4 June 2019 and expiring on 3 December 2021 with the Applicant to be released by way of recognizance release order after 15 months' imprisonment on 3 September 2020 upon entering a recognizance to be of good behaviour for a period of three years.
This Court has determined that aggregate sentencing under s.53A Crimes (Sentencing Procedure) Act 1999 (NSW) is available where a court is to impose sentences for several Commonwealth offences: Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301 at [141]-[146]. In particular, Price J (Basten JA and Walton J agreeing) said at [145]-[146]:
"145 The Commonwealth Director submitted that based on the decision in Putland [(2014) 218 CLR 174; [2014] HCA 8], aggregate sentences are available in New South Wales for offenders prosecuted for two or more Commonwealth offences on indictment, by application of s 53A of the Crimes (Sentencing Procedure) Act. The respondent did not take issue with the Commonwealth Director's submission.
146 The Commonwealth Director's submission is soundly based. There does not appear to be any good reason for concluding that s 53A does not apply to Commonwealth offences dealt with on indictment in New South Wales."
Accordingly, aggregate sentencing was an available option in this case for the Commonwealth offences. However, the problem with the form of sentencing orders in this case arises from the formal entry of orders made in JusticeLink, which constitutes the official record of the sentencing orders: Part 53 Rule 12 District Court Rules 1973 (NSW); Ghalbouni v R [2020] NSWCCA 21 at [45]. According to JusticeLink, a separate sentence of imprisonment for 30 months was imposed for each of Sequences 3, 4 and 9 with each sentence to be partially suspended after 15 months. That does not appear to have been the intention of the sentencing Judge. Rather, her Honour nominated terms of imprisonment for each of Sequences 3, 4 and 9 with a process of notional accumulation to operate giving rise to an aggregate sentence of 30 months.
Execution of Search Warrant on 27 March 2017
As a result of complaints made to the police by Victim A and Victim B, police commenced an investigation of the Applicant. At about 11.00 am on 27 March 2017, New South Wales Police executed a warrant at the Applicant's residence in Caringbah South.
The Applicant gave his mobile phone and laptop to police and indicated his PIN.
The Applicant told police that:
1. there were nude images of girls on his phone aged between 14 to 18;
2. he obtained the images via Snapchat;
3. some of the images were received over Snapchat in response to a request;
4. some of the images received over Snapchat were "forced";
5. by forced, he meant "convincing them, offering money, offering other things for the photos";
6. he requested images from 30 to 40 different girls.
During the execution of the warrant, the Applicant told his brother the police "are here because I am in the wrong … I am in the wrong".
Sequence 1 - Possession of Child Abuse Material on 27 March 2017
Following execution of the search warrant on 27 March 2017, the Applicant's computer was obtained and examined with no relevant material being located on it.
The offence contained in Sequence 1 relates to material located on the Applicant's mobile phone.
The sentencing Judge was informed that the material on the Applicant's mobile telephone had been classified in accordance with the Interpol Baseline Scale which classifies activity depicted as Child Abuse Material: Gilshenan v R [2019] NSWCCA 313 at [13]. Relevant categories are as follows:
Category 1 Interpol Baseline Categorisation
Material depicting a real pre-pubescent child, and the child is involved in a sex act, witnessing a sex act, or the material is focused/concentrated on the anal or genital region of the child.
Category 2 Other Illegal Child Abuse Material
Material depicting a person who is, appears to be, or is implied to be a child, and is depicted or described in a way that reasonable persons would regard in all the circumstances offensive who: Is a victim of torture, cruelty or physical abuse; or Is engaged in or apparently engaged in a sexual pose or sexual activity (alone or in the presence of others); or Is in the presence of another person who is engaged in or apparently engaged in a sexual pose or sexual activity; or Is exposing the genital area or anal area or breasts of a female child.
Her Honour noted the provisions in s.16A Crimes Act 1914 (Cth) and stated with respect to the Commonwealth offences (ROS16):
"The offender has engaged in the continuous course of conduct over a period of time with multiple victims, amassing a collection of child abuse material and using his contact with those victims to solicit child pornography and to groom recipients in his communications.
The communications involved emotionally manipulative communications with young vulnerable victims to achieve his own ends for sexual gratification. I am in agreement with that submission that these offences do constitute serious breaches of the Code offences."
The sentencing Judge then turned to an assessment of the objective seriousness of the s.474.27(1) offence in Sequence 9 (ROS17):
"Turning firstly to use carriage service to groom a person under 16 years for sexual activity, the first matter to be noted is that the victim ['Victim C'] was 14 at the time. The facts note that the offender did not know that, in so far as the victim had not told the offender of her age, but it is clear that the victim was relatively young within the category of age that constitutes this offence. Fourteen is towards the upper end of that age limit, but nonetheless is an age that involves deserving protection under the legislation.
The offender's communications were clearly designed to win the trust of ['Victim C'] and draw her into intimate and sexually explicit conversation. The Crown's submission is that this conduct was for the purpose of making it easier to procure the victim for sexual activity. The offender requested photographs in the context of sexualised conversation. The offender requested she meet him for the purpose of sexual activity and he instructed her on how to masturbate.
He also asked her to delete the conversations. In that regard there is a furtive aspect to his behaviour."
After referring to the principles set out in R v Asplund (2010) 216 A Crim R 48; [2010] NSWCCA 316 at [48]-[49], her Honour said with respect to the Sequence 9 offence (ROS18-19):
"The Crown asked the Court to consider this case as resonating with the concerns raised in the decision of Asplund. Here, the offending occurred over a period of approximately 11 days with contact occurring on six of those days.
The chat displayed an awareness by the offender that the victim was 14 years of age. I said earlier that the victim had not told the offender, I withdraw that comment. I am in agreement with the Crown that the chat did display awareness by the offender of the age of the victim and also showed a persistent desire to discuss highly sexualised matters despite her age.
Furthermore, the offender's behaviour was aimed at cultivating a relationship of trust between him and the child victim to facilitate the continuation of the communication and to facilitate the offender eventually meeting with the victim so that he could pursue a desire to engage in sexual activity with her.
The Crown rightly submits that the offender exploited the anonymity of the internet to cultivate the relationship of trust. Unlike the case of Asplund, there was no actual exchange of money and there was not a position of power, but I do agree with the Crown that there was grooming in the sense of the attempt to create a relationship of trust.
The offender persistently attempted to make arrangements to meet the victim with such requests becoming more and more urgent. Furthermore, the offender engaged in the furtive aspect of directing the victim to delete the conversation with him in order to avoid detection.
The Crown submits that the offender engaged in a deliberate and persistent course of conduct involving emotionally manipulating and encouraging a young girl to engage in sexualised communications for the purpose of the offender's sexual gratification.
Many of those aspects are bound within the elements of the grooming offence itself. Of concern here is the persistence of the offender and the degree of manipulation used by the offender, together with the furtive aspect of directing the victim to delete the conversations.
Regrettably these offences are often hard to detect, precisely because of that aspect of the criminal conduct."
Her Honour then assessed the objective seriousness of the Sequence 9 offence in the following way (ROS19):
"I am in agreement that this offence falls within the mid range level of criminality, although, given the age of the victim, fortunately it is not as serious as some other cases the Court sees. I would see this offence as falling at the start of the mid range category."
The sentencing Judge then made findings relating to the possess child abuse offence (Sequence 1) and the Sequence 4 offence. Her Honour referred to factors to be taken into account on sentence as identified in Minehan v R (2010) 201 A Crim R 243; [2010] NSWCCA 140 and R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174. Her Honour said in this respect (ROS20-21):
"Such factors to be considered include: whether actual children were used in the creation of the material; and the extent of any cruelty or physical harm occasioned to the children.
Here, actual children were used, but there is not a suggestion of particular cruelty or physical harm apart from the caption on one of the photos that was to the effect that it should stop.
The Court must consider the nature and content of the material and in particular the age of the children and the gravity of the sexual activity depicted. Here, the number of images was not as large as the Court sometimes encounters, but it is nonetheless a considerable amount. The nature of the content does not appear to involve matters that fall into the Interpol baseline category 1 but nonetheless, as the Court understands, it involves category 2 images.
The Court must consider the degree of planning, organisational sophistication employed by the offender. It is to be noted that the offender had an encrypted app for the storage of such images.
The Court is to note whether any payment or other material benefit was made, provided or received. Certainly the facts generally show a course of conduct where the offender was offering money. It does not seem that any money was paid out, despite images of bank accounts and purported transactions in that regard.
The Court is to consider whether the material was for the purpose of sale or distribution. Despite the offender apparently at one stage in another part of his criminal conduct pretending to be 'John', there is no evidence that the offender intended to distribute or sell the images. Instead, the most the Court would find beyond reasonable doubt is that he had the images for his own gratification. Equally, there is no evidence that the offender was going to profit financially from the offences.
The Court is to consider whether the offender acted alone or in a collaborative network. Despite the reference at one stage in the facts to the offender apparently posing as Orion's client 'John', nonetheless there is no suggestion that he acted collaboratively with any other person.
The Court is to consider the risk of the material being acquired by vulnerable persons, particularly children. Whilst the facts do show that the offender had sent a different image to a child, it is not suggested that his soliciting child pornography material was for the purpose of showing other people and it does not seem that there was a real risk of the images being acquired by vulnerable persons particularly children.
The Court is also to consider any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted. Again, there is no such risk revealed to the Court in this case."
Her Honour referred to submissions made concerning the objective seriousness of the s.474.19(1)(a)(iv) offence in Sequences 3 and 4. It may be taken that her Honour was accepting the following Crown submissions, which were not placed in issue at the sentencing hearing. Her Honour said in this respect (ROS21-22):
"The Crown's submission is that each of the solicit child pornography material offences is objectively serious. Firstly, the child pornography material solicited by the offender was at times graphic in nature, with one victim responding with videos of herself masturbating. The offender specifically told one victim that the sexier and kinkier the photographs the more money she would be paid. The offender offered incentives for the return of images, including the promise that he was involved in the modelling business and the promise of gifts and payment involving hundreds and then thousands of dollars.
In response to his solicitations, the offender was sent about 70 photographs and an unspecified number of videos from the victim in sequence 3 and then over 60 photographs from the victim in sequence 4. Both victims were aged 14 years, although it is conceded that the offender might not have known the actual age of each victim.
The offender specifically directed the victims as to the nature of the material they were to send him. He took a screen-shot of some of the photographs sent to him and saved them in his encrypted app for future use.
Significantly, he engaged in emotionally manipulative conduct in his communications with the victims. He threatened to kill himself and he threatened to provide the photographs he was sent to the police. The nature of this emotionally manipulative conduct can be seen particularly in the Snapchat discussions between the offender and the victim ['Victim B']. The offender acknowledged that this conduct was forcing the victims to send images; that acknowledgement was made to police."
The sentencing Judge then made the following finding concerning the objective seriousness of the offences in Sequences 3 and 4 (ROS22):
"The circumstances are such that, for each of the offences, the offending conduct falls within the mid-range level of criminality and I am in agreement with the Crown's articulation of the features for consideration. Whilst a number of those features comprise the elements of the offence themselves, it is the extent to which the offender committed those elements that is still necessary in the consideration of objective gravity."
Her Honour then returned to the offence in Sequence 1, being the offence of possession of child abuse material contrary to s.91H(2) Crimes Act 1900 (NSW). After referring to sentencing principles for this class of offence, her Honour said (ROS24):
"I am in agreement with the Crown that there is a paramount public interest in promoting the protection of children, as the possession of child pornography is not a victimless crime. Children should not be sexually abused in order to supply the market and yet, this is what occurs with the possession of child pornography, particularly where real children are depicted.
As seen from the victim impact statement of one of the victims in the solicitation offences there is an additional layer of trauma where the victim lives with the knowledge that images of her abuse exist in perpetuity and they can resurface at any time. Accordingly, the authorities describe the harm caused to children exploited in this way as 'profound' and exacerbated by the continued and indefinite circulation and accessibility of images on the internet.
In this case, the offender gave his phone and laptop to police and made admissions. The police found 280 photographs on the phone constituting child abuse material. The Crown submits that such conduct would be seen as constituting a serious commission of this type of offence when one considers the following features.
The material located on the phone was protected by an encrypted application photo vault.
The material featured images where the victims had been coerced or forced with, as I noted earlier, a plea in one of the images being, 'please don't make me send any more'.
It is not possible for the Court to determine the number of victims featured in the child abuse material, but it is able to be determined beyond reasonable doubt that there were multiple victims.
The offender told police he had requested such images from 30 to 40 different girls."
Having considered factors relevant to sentence for this class of offence as considered in R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370, her Honour made the following finding concerning the objective gravity of the Sequence 1 offence (ROS25):
"I agree with the Crown that the offending conduct would be seen in the mid-range level of gravity, but it would be at the lower end of mid-range."
Her Honour then turned to consider the objective gravity of the s.474.17(1) offence to be taken into account under s.16BA Crimes Act 1914 (Cth), being the offence of using a carriage service to menace, harass or offend. Her Honour accepted the Crown submissions in this respect and made the following findings (ROS26):
"In that regard, the Crown relied on several features in the assessment of the objective gravity as being serious.
Firstly, the offence was committed against four separate victims on different days.
The ages of the victims are unknown, but it emerges from their communications that there was a naivety and vulnerability of each of the victims that was apparently exploited by the offender.
The offender engaged in persistent and calculated predatory conduct as a course of conduct.
He assumed the identity of a modelling agent to lure victims to send sexualised images and videos.
He used substantial financial incentive to entice the victims to send such images of themselves, albeit that there is no evidence he paid any victim.
The offender used material obtained from some of the victims using deception and coercion to extort further material with threats of exposure.
The offender extorted video material as well as still images.
I am in agreement with the Crown that this offence falls at the mid-range level of objective gravity."
The sentencing Judge then considered whether the circumstances of the Applicant's offences involved a course of conduct for the purpose of s.16A(2)(c) Crimes Act 1914 (Cth) and s.21A(2)(n) Crimes (Sentencing Procedure) Act 1999 (NSW). Her Honour said (ROS27-28):
"The Commonwealth legislation requires that the Court take into account the course of conduct. Here the offender participated in conversations in which he solicited child pornography material over several hours on one day. The conversation constituting the grooming of victim ['Victim C'] took place over a span of 11 days, the chats themselves occurring on six different days, often for an extended period of time. The conversations constituting the menacing and harassment of four separate victims took place over the span of one day on each occasion, that is over separate days.
The Crown submits in the circumstances that none of the offences can be viewed as spontaneous or impulsive. Certainly for the offender to be able to show an image of a bank account with some millions of dollars or to show other such bank account transactions which on the facts are of dubious reality does involve a degree of planning. There is a persistence that emerges from a view of the totality of the offending conduct.
Furthermore, the Crown submits that the possession of the child abuse material cannot be said to have resulted from a single download. Instead, on the offender's own account, he sought the images from 30 to 40 different girls.
In the decision of James v R as recently affirmed in the decision of Porte to which I have referred, the Court of Criminal Appeal considered that the offences of accessing and possessing child pornography are separate offences and therefore it is appropriate for there to be some consideration of accumulation of the sentences. I will return to a consideration later in respect of the totality of offending conduct.
The Crown furthermore asked the Court to consider the circumstances that the totality of offending conduct involved multiple victims, including children who were 14 years old at the time as was the victim ['Victim C']."
The sentencing Judge then turned to other evidence concerning the Applicant for the purpose of considering the issue of moral culpability. Her Honour said (ROS28):
"The Court must consider the broader concept of moral culpability. That consideration extends beyond an assessment only of the objective gravity and the Court is able to consider features that are subjective to the offender himself."
Thereafter, her Honour considered, at some length, the psychological reports of Ms Gebert and Mr McQuillen with aspects of these reports being summarised in the following way (ROS28):
"Those reports consistently outline a childhood experience by the offender where his primary school years involved bullying as evidenced by some of the medical records contained towards the end of exhibit 1. It appears that the offender was both verbally and physically assaulted or bullied during his primary school years so causing an experience of social isolation and leading in adolescence to a condition of depression. Between years 9 and 10 at school, the offender reported being witness to various suicide attempts and the offender himself later had admissions to hospital for his own self-harm attempts."
Her Honour noted Mr McQuillen's opinion that there was a causal connection between the Applicant's psychological condition and the offending conduct with the Court referring to parts of Mr McQuillen's report as set out earlier in this judgment (at [148]-[153] above) (ROS29). Her Honour continued (ROS30-31):
"These are matters relevant to the consideration of the offender's moral culpability. It has long been recognised by the authorities that where there is a link between an offender's mental health and the offending conduct, then there might arise a degree of mitigation on sentence. Cases such a De La Rosa consider the various aspects that can arise from a consideration of an offender's mental health. On the one hand, where there is this causal connection, it can reduce the emphasis or the weight that arises in the assessment of the moral culpability; it can be mitigating.
On the other hand, there can be a concern that such a mental health condition can cause an ongoing risk to the community, giving rise to the sentencing purpose of the protection of the community. Furthermore, an offender's mental health can make an offender's experience of custody more onerous. Furthermore, the offender's mental health conditions can render an offender an inappropriate vehicle for the sentencing purposes of general deterrence and specific deterrence.
Here, I am of the view that the detail to which I have referred from the agreed facts, together with an understanding of the psychological reports, together with the character references supplied through the offender's parents and his brother, reveal an immaturity for a man of 21 years-of-age or 18 at the time of the offences.
There was [exploitative] conduct by the offender, a real manipulation of younger victims and their innocence, but there was also an immaturity displayed by the offender. That immaturity sits within the context of the offender's childhood of being somewhat marginalised through his experience of bullying and the consequential development of a depressive conduct which saw several episodes of self harm. That immaturity is coupled with the offender's physical age. At 18 he had just entered his legal adulthood. These are features that in my view must impact on the assessment of the moral culpability. The objective gravity, that is, based on the circumstances arising from the offences themselves, is grave, as I have outlined. The offender's subjective features do in this case give rise to a mitigation of the broader concept of moral culpability. His age, his immaturity and his mental health conditions at the time require that the Court mitigates the moral culpability and accommodates the ongoing need for rehabilitation."
The sentencing Judge allowed a 25% discount for the Applicant's early pleas of guilty, an issue to be addressed in the second ground of appeal. Her Honour said (ROS31):
"The offender is to receive, by mutual position from the parties, a 25% discount in respect of his early pleas of guilty."
The sentencing Judge then addressed the Applicant's prospects of rehabilitation and risk of reoffending, together with issues of contrition and remorse (ROS31-32):
"Furthermore, the offender has been undergoing efforts towards rehabilitation. This is outlined in the psychological reports. Even in the most recent report, it can be seen that the offender has been persisting with rehabilitation through counselling. The psychological reports consistently regard ongoing treatment as necessary to reduce the risk of recidivism by the offender.
While the offender does not have a known criminal history, and that ordinarily would be a feature of good character to be taken into account, the Crown quite rightly notes that the weight to be given to good character with these sorts of offences is not as high as might otherwise occur, given that these offences are often committed in circumstances that are hard to detect. However, the prior good character assists the Court in understanding the offender's prospects of rehabilitation.
Whilst the offender has engaged in a course of conduct, his prospects of rehabilitation are positively assisted by his youth. He is still young enough to be able to rehabilitate with work through his ongoing counselling. He is not entrenched in his pattern of behaviour. Furthermore, I accept the opinions of the psychological report writers that the offender's risk of recidivism must be seen as being reduced by ongoing treatment.
In the sentencing assessment report contained in exhibit A, the offender has some pro-social factors noted as confirmed in the character references and the psychological report. Firstly, he resides with his family, an environment he experiences as being stable and supportive. That favours his rehabilitation. Secondly, he has been engaged in pro-social employment in the hospitality industry. That also favours his prospects of rehabilitation. Furthermore, he has expressed remorse and regret to the report writers and his family and, whilst that was not tested under oath by way of cross-examination, the Crown concedes that the Court can accept those expressions of remorse as genuine.
Furthermore, the offender has been undergoing psychological intervention to address the underlying issues of this offending conduct. That also favours his rehabilitation. Furthermore, the offender has expressed his willingness to continue engagement with rehabilitation and psychological intervention. All these matters have led to the sentencing assessment report as initially assessing the offender as being at a low risk of reoffending.
Community Corrections overrode that overall risk of reoffending due to the offender being in the above average risk when considered under the Static-99R assessment. In the psychological report of Mr McQuillen, it is clear that the assessment of risk of reoffending can vary depending on the tests applied and the considerations used."
Her Honour continued (ROS32-33):
"The Court has a great deal of experience, regrettably, with sentencing for these types of offences, particularly those committed by younger adults. The circumstances are such that the offender's age, together with those pro-social factors, lead the Court to say that with appropriate dedication to rehabilitation, he will reduce his risk of reoffending to falling below the above average risk that would otherwise arise from the Static 99R assessment."
Her Honour turned to issues of concurrency, accumulation and totality (ROS33):
"I return to a consideration of the totality of offending. There was a course of conduct here. Whilst in some respects that can increase the outrage at the offending conduct, on the other hand, the Court would have to recognise that there is some factual overlap. It is clear from the assessment of objective gravity that there were features that flavoured one offence when considering the aspects of another offence.
To the extent that the sentence for one offence can reflect and accommodate the criminality arising in another offence, then cases such as Pearce and Cahyadi suggest that the Court ought consider a degree of overlap or concurrency between the sentences. To the extent that the sentence for one offence cannot reflect the criminality and circumstances of another offence, then the Court ought consider a degree of accumulation, adding on top of the sentences. That is, that one sentence might extend beyond another sentence.
The Court must ensure that the sentence for each offence is appropriate to the circumstances pertaining to that individual offence, but equally the Court must ensure that the overall sentencing result is proportionate to the totality of criminality. The minimum appropriate outcome must be imposed. The Court must ensure that it does not unduly crush an offender insofar as that total sentencing outcome is imposed."
Her Honour addressed the issues of general deterrence and specific deterrence in the following way (ROS34):
"The Crown has submitted that the Court should regard the aspect of general deterrence as the paramount consideration, particularly where there is a need to protect children from sexual abuse. I am in agreement that it is a sentencing concern to receive considerable emphasis in this case. I note, however, that because the offender had only just entered his adulthood for State offences and was in his early adulthood as regards the Commonwealth offences, the circumstances are such that the need for general deterrence must sit together with an emphasis on ongoing rehabilitation.
The Crown submits that there is furthermore a significant component of specific deterrence warranted in the sentencing exercise. In circumstances where there is the anonymity of the internet and the difficulty in detecting such offences and there has been a course of conduct, then specific deterrence must be a sentencing concern. It is, however, tempered by the aspect that the Court has found the offender has displayed genuine remorse and genuine dedication towards rehabilitation."
Although the Applicant did not give evidence at the sentencing hearing, her Honour treated as appropriate the Crown concession that regard should be had to his expressions of remorse as being genuine (ROS34).
As the sentencing remarks drew to a close, her Honour noted that most of the factors to be taken into account under s.16A(2) Crimes Act 1914 (Cth) had been addressed to that point. Her Honour referred to a number of other factors (ROS35):
"Furthermore, to the extent that the Court must consider the degree of co-operation with law enforcement agencies, it is noted the offender did provide his laptop and phone to the police who executed the search warrant at his home and did make admissions, albeit that as the Crown notes, it does appear that was in the context of an inevitable case against the offender. Nonetheless, it is consistent with his pleas of guilty and remorse.
The Court is furthermore to consider the deterrent effect of the sentence generally and on the offender and to ensure that the offender is adequately punished. The Court is also to consider the probable effect of any sentence on the offender's family or dependents. In exhibit 1, there are character references from the offender's parents and brother. There is a note in the further psychological material that both parents have in the past suffered from depression. These are not easy matters for any family to accommodate. Clearly the offender's family provide ongoing support and this will be difficult for them in light of their love for and support for the offender."
The sentencing Judge referred to other sentencing decisions mentioned by the Crown in written submissions. This part of the sentencing remarks was relied upon by the Applicant in support of the third ground of appeal. Her Honour said (ROS35-36) (emphasis added):
"Furthermore, the Court must consider where this case sits within our system of precedent. That is, the Court must ensure that the offender is sentenced consistently with other offences of like kind to avoid a sense of grievance for any offender whose sentence falls outside the pattern of appropriate sentencing. The pattern of appropriate sentencing can be hard to discern because, as noted in the authorities, each case involves a complicated and intricate matrix of circumstances peculiar to that particular case.
In this matter, there are several cases supplied within exhibit A by the Crown under annexure B, I have had regard to those cases. I adopt annexure B and annex it to my sentencing remarks without reading out all of those matters. I have ensured that the sentencing outcome here falls within the type of sentencing range that arises from a consideration of cases referred to the Court. Equally, the Court relies on an experience of sentencing for these types of offences over many years."
In part of the sentencing remarks which relates to the first ground of appeal, her Honour said (ROS36):
"In both the State and Commonwealth legislation, it is noted in s 17A of the Crimes Act (Cth) and s 5 of the Crimes (Sentencing Procedure) Act (NSW) that a sentence of imprisonment may only be imposed if it is the only appropriate sentencing outcome.
It is submitted by the Crown and conceded on behalf of the offender that the gravity of the offences is such that only sentences of imprisonment are appropriate in the circumstances of this case. It next falls upon the Court to determine the length of those sentences."
The sentencing Judge then paused and enquired of the parties as to whether there was any aspect which the Court had "neglected to refer to" in the sentencing remarks. The Crown responded in the negative. The solicitor for the Applicant proceeded to make further submissions which led to a dialogue between the Applicant's solicitor and the sentencing Judge (ROS36-38). The principal topic which appeared to be raised for the Applicant at this point related to the comparative ages between the Applicant and the young girls with whom he had communicated in these offences. Reference was made as well to Victim A's victim impact statement.
Discussion between the sentencing Judge and the Applicant's solicitor concluded in the following way (ROS38):
"HER HONOUR: I can't see that that would be taken into account in any way in your client's favour for this reason; any sexual activity between an 18 year old and a 14 year old is illegal and furthermore, so intricately bound with each of the offences is the use of the technology, which has, I accept, facilitated the criminal conduct, but more than that, there's this exploitation that underpins the criminal conduct that is just not able to be isolated from the conduct here.
APPLICANT'S SOLICITOR: If the Court please, thank you, your Honour.
HER HONOUR: So I take into account what you say but I can't see that it can materially affect the sentencing outcome in any way because I can't unravel the circumstance that it was the internet used, and it was exploitative."
Her Honour then continued (ROS38):
"I am now going to impose the sentences of imprisonment. For each of the sentences, I have taken into account all of the circumstances to which I have referred, I have taken into account the statutory guideposts of the maximum penalties, and I have also taken into account and applied the 25% discount for the pleas of guilty."
To the extent that a finding of special circumstances was relevant to the sentencing exercise, her Honour said (ROS38-39):
"If this were a State offence only - and there is one State offence for sequence 1, I would have found special circumstances in order to alter the usual statutory ratio by the fact that firstly you are young, you have not experienced custody before, and you have a mental health condition that will need fairly intensive treatment. Also, I would have found special circumstances based on the fact that I am sentencing you in respect of a number of offences."
The sentencing Judge then noted that the Sequence 10 offence was to be taken into account under s.16BA Crimes Act 1914 (Cth) when passing sentence for the Sequence 4 offence, with her Honour's approach in this respect not coming under challenge in this Court.
Her Honour then proceeded to fix sentences as identified earlier in this judgment (at [4]ff).
A forfeiture order was made under s.23ZD Crimes Act 1914 (Cth) with respect to the Apple iPhone 6 which had been seized by police from the Applicant at the time of execution of the search warrant on 27 March 2017.
The Crown submitted that the Applicant's counsel at first instance had accepted that there was no alternative to fulltime imprisonment for both the Commonwealth and State offences and that submissions had been made upon that basis. It was submitted, as well, that the sentencing Judge structured the sentences by use of a partially suspended sentence in accordance with s.20(1)(b) Crimes Act 1914 (Cth), in a manner which combined custodial and non-custodial elements in the sentence.
The Crown submitted that it was clear from the sentencing remarks that her Honour had formed the view that nothing short of a fulltime sentence of imprisonment was appropriate having regard to the objective gravity of the Applicant's offences.
Decision
In approaching this ground of appeal, it is necessary to keep in mind the manner in which the District Court sentencing hearing was conducted by counsel appearing for the Crown and the Applicant.
The Crown written submissions in the District Court submitted that "the only appropriate penalty is a period of fulltime imprisonment, with regard to the nature and objective seriousness of these offences, and the need for general deterrence and denunciation of the offender's conduct" (AB190).
Counsel for the Applicant addressed orally without the use of written submissions. He commenced his submissions on sentence in the following way (T12-13, 20 May 2019):
"HER HONOUR: Thank you. Mr Chhabra, what submissions do you wish to make?
CHHABRA: Yes, your Honour. Perhaps in overarching fashion, I can indicate in terms of sentencing principles and assessment on objective gravity, there is no real distance between the Crown and my position. With respect to the State offence, it is conceded the s 5 threshold is crossed. With respect to each Commonwealth offence, it is accepted once more, that the threshold for imprisonment is crossed. By function of the fact that the State offence is a prescribed sexual offence, an alternative to full time custody is not available. I appreciate that the inevitable consequence of that is that any sentence structure would involve full time custody.
CHHABRA: To adopt my friend's word - incarceration.
HER HONOUR: I think that's realistic.
CHHABRA: Indeed and that much is accepted."
Later in his sentencing submissions, counsel for the Applicant said (T18, 20 May 2019):
"I appreciate it is not for me to suggest length or range. The highest I put it is this. Given his relative youth, there is the risk of institutionalisation or a crushing sentence - the impact that could have on him were the sentence to be too long. Yes, the non-parole period must reflect proportionality and punishment, but he is a young, fragile, flawed man - in all reality a boy. And I would ask the Court to take into account in terms of structuring any sentence to meet the requirements of proportionality given also the Court's and Parliament's interests in rehabilitation."
It is clear that the sentencing hearing was conducted upon the basis that an overall sentence of fulltime imprisonment was the appropriate sentencing outcome in this case. To that extent, there is a divergence between what was argued in the District Court and what is advanced in this Court on behalf of the Applicant.
This Court, of course, is a court of error so that a difference in approach in the manner in which the proceedings were conducted at first instance and in this Court may have a significant and material effect upon the question whether error can be demonstrated: Zreika v R at [79]-[82].
What was said in Douar v R and Fedele v R does not a require a slavish or formulaic approach by a sentencing Judge for the purpose of determining whether a sentence of fulltime imprisonment is appropriate. There are some cases, of course, where the objective gravity of the offences means that a sentence of fulltime imprisonment is inevitable, even allowing for other aspects of the case including an offender's subjective circumstances. In my view, this case fell into that category, as counsel for the Applicant at first instance recognised.
The District Court sentencing hearing was conducted in a realistic fashion by counsel appearing for the Applicant and the Crown. Further, her Honour gave careful consideration to all aspects bearing upon sentence as demonstrated by the detailed extracts from the sentencing remarks set out above.
In the result, her Honour determined upon a sentencing outcome which saw a minimum custodial component with a substantial period of conditional liberty. The Applicant has not established the error asserted in the first ground of appeal.
I reject the first ground of appeal.
The Crown written submissions in the District Court referred to Xiao v R and the appropriateness of allowing a discount for the utilitarian value of a guilty plea for Commonwealth offences (AB200-201).
The sentencing Judge allowed a 25% discount for the Applicant's pleas of guilty for the Commonwealth and State offences without any elaboration (see [179] above). This approach was understandable given the submissions made in this respect at the sentencing hearing where counsel for the Applicant and the Crown agreed that a 25% discount was appropriate for the Applicant's pleas of guilty to the State and Commonwealth offences (T13-14, 20 May 2019).
There was no uncertainty concerning the approach adopted by the sentencing Judge in determining the discounts for the pleas of guilty in this case. A common approach was adopted by reference to the utilitarian value of the pleas of guilty, with this approach being applicable to the Commonwealth and State offences in light of the common principles to be applied referred to at [219] above.
The sentencing Judge allowed identical discounts of 25% for the utilitarian value of the Applicant's guilty pleas for the Commonwealth offences in the same way as her Honour did with the guilty plea for the State offence.
Her Honour made separate findings that the Applicant had expressed genuine contrition and remorse and these factors were taken into account, without quantification, as subjective factors which operated in the Applicant's favour on sentence.
I would reject this ground of appeal.
The Crown submitted that, to make good this ground of appeal, it was necessary for the Applicant to demonstrate that the sentencing Judge had impermissibly constrained her own sentencing discretion by use of the comparable cases. It was submitted that this had not been demonstrated by the Applicant.
It was submitted further that the Applicant had not identified how the sentencing Judge was constrained by the comparable cases and which of the cases are said to have adversely influenced her Honour's sentencing discretion.
The Crown submitted that the cases contained instances where offenders were sentenced for single offences through to multiple offences for Commonwealth and State offences and that it was difficult to understand how, in those circumstances, her Honour could have constrained her own sentencing discretion.
The Crown submitted that the Court should reject the third ground of appeal.
Decision
To determine this ground of appeal, it is necessary to consider the way in which the sentencing Judge was invited to consider other sentencing decisions for the purpose of sentencing the Applicant in this case.
The Crown written submissions in the District Court referred to Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 and submitted that "the consistency [in sentencing] that is sought is consistency in the application of the relevant legal principles, rather than some numerical equivalence". The written submissions noted that annexed as Annexure "B" was "a schedule of cases which made [sic] provide the Court some guidance as to the applicable unifying principles".
Annexure "B" contained a summary of the following six cases:
1. Meadows v R [2017] VSCA 290;
2. R v Engeln [2014] QCA 313;
3. Cooper v R [2012] VSCA 32;
4. R v Costello [2011] QCA 39;
5. Rampley v R [2010] NSWCCA 293; and
6. R v Asplund (2010) 216 A Crim R 48; [2010] NSWCCA 316.
The Crown written submissions did not use the word "range" nor did they suggest that the six cases were to be used on sentence beyond the propositions taken from Hili v The Queen (referred to at [238] above).
Nothing was said in oral submissions before the District Court concerning the use to be made of the six sentencing decisions contained in Annexure "B" to the Crown submissions.
As the extracts from the sentencing remarks make clear, the sentencing Judge came to mention these decisions after an extensive examination of objective and subjective factors arising in the case and relevant sentencing principles. It is helpful at this point to repeat what her Honour said in this respect (ROS35-36) (emphasis added):
""Furthermore, the Court must consider where this case sits within our system of precedent. That is, the Court must ensure that the offender is sentenced consistently with other offences of like kind to avoid a sense of grievance for any offender whose sentence falls outside the pattern of appropriate sentencing. The pattern of appropriate sentencing can be hard to discern because, as noted in the authorities, each case involves a complicated and intricate matrix of circumstances peculiar to that particular case.
In this matter, there are several cases supplied within exhibit A by the Crown under annexure B, I have had regard to those cases. I adopt annexure B and annex it to my sentencing remarks without reading out all of those matters. I have ensured that the sentencing outcome here falls within the type of sentencing range that arises from a consideration of cases referred to the Court. Equally, the Court relies on an experience of sentencing for these types of offences over many years."
The sentencing Judge appears to have taken the following steps:
1. having considered the six sentencing decisions, her Honour said that "the Court must ensure the offender is sentenced consistently with other offences of like kind" to avoid a sense of grievance for an offender whose sentence "falls outside the pattern of appropriate sentencing";
2. her Honour noted that "the pattern of appropriate sentencing" may be hard to discern because of differences between particular cases;
3. her Honour had regard to the six decisions in Annexure "B" which were, in effect, incorporated by reference into the sentencing remarks;
4. her Honour "ensured that the sentencing outcome here falls within the type of sentencing range that arises from a consideration of cases referred to the Court";
5. her Honour relied as well "on an experience of sentencing for these types of offences over many years".
The sentencing Judge had found that the present Applicant was a mentally disturbed and immature 18-year old when he committed serious offences. Findings had been made that the Applicant's moral culpability was reduced and that the need for specific and general deterrence was moderated in his case.
What light was shed upon the sentencing of such an offender by the six decisions which her Honour took into account and applied to "ensure" that the sentencing outcome for the Applicant fell within "the type of sentencing range" that arose from consideration of those six decisions?
Annexure "B" to the Crown submissions revealed the following features of the six decisions:
Meadows v R
The 38-year old offender in Meadows v R pleaded guilty to one offence of using a carriage service to groom a person under 16 years for sexual activity contrary to s.474.27(1) Criminal Code (Cth) and one count of possession of child pornography contrary to s.70.1 Crimes Act 1958 (Vic). The grooming offence involved four online conversations with a police officer posing as a 12-year old girl over a one-week period. The possession of child pornography offence involved two image files, one in Category 1 and one in Category 4 within the CETS Scale: R v Porte at [16].
The offender had a mild brain injury, but there was no evidence to suggest that it contributed to his offending. There was an early plea of guilty and evidence of a pattern of alcohol abuse which may have contributed to the offending. He expressed remorse and played a role caring for his mother during illness.
The offender was sentenced to 12 months' imprisonment for the grooming offence to be released on a recognizance release order after three months to be of good behaviour for nine months. For the possession of child pornography, he was sentenced to a community corrections order for 15 months.
On appeal, the sentences were held not to be manifestly excessive and leave to appeal was refused.
R v Engeln
The 33-34 year old offender in R v Engeln pleaded guilty to two offences of using a carriage service to groom a person under 16 years for sexual activity contrary to s.474.27(1), one offence of using a carriage service to transmit indecent material to a person under 16 years contrary to s.474.27A(1) Criminal Code (Cth) (punishable by a maximum penalty of seven years' imprisonment), three offences of using a carriage service to procure a person under 16 years contrary to s.474.26 Criminal Code (Cth) (punishable by a maximum penalty of 15 years' imprisonment) and one offence of possession of child exploitation material contrary to s.228D Criminal Code 1899 (Qld).
The offender had no prior criminal history. Over a four-week period, he engaged in sexually graphic and explicit online chats with a police officer posing as a 14-year old girl and engaged as well in communications over some months with a police officer posing as a 14-year old girl. The Applicant transmitted images of himself masturbating and arranged to meet the undercover officer with the intention of engaging in sexual activity with a person he believed to be a 14-year old girl. Upon execution of a search warrant, devices found contained 308 child exploitation images. The offender had a good employment history and displayed genuine remorse.
A series of sentences were imposed involving an order that he be released after nine months' imprisonment upon a recognizance to be of good behaviour for three-and-a-half years.
An appeal against sentence was dismissed.
Cooper v R
The 25-year old offender in Cooper v R was sentenced for one offence of using a carriage service to access child pornography contrary to s.474.19(1), two offences of using a carriage service to transmit child pornography contrary to s.474.19(1), two offences of using a carriage service to procure a person under 16 years contrary to s.474.26(1), one offence of using a carriage service to cause child pornography to be transmitted contrary to s.474.19(1) and two offences of using a carriage service to groom persons under 16 years contrary to s.474.27(1) Criminal Code (Cth). In addition, the offender was sentenced for one offence of possession of child abuse material (at a time when the maximum penalty for this offence was imprisonment for five years).
Over the course of one day with each victim, the offender engaged in chats using assumed online identities with a 13-year old boy and with a 15-year old girl using the messenger profile of a 14-year old boy. He transmitted child pornography images to the intended victims and discussed masturbation. He committed grooming offences whilst on bail for six offences. There was evidence of lack of insight into his offending.
At first instance, a total sentence of imprisonment of seven years with a non-parole period of five years was fixed. On appeal, the overall sentence was reduced to imprisonment for five years and six months with a non-parole period of three years and nine months.
R v Costello
In R v Costello, the 48-year old offender was sentenced for one offence of using a carriage service to groom a person under 16 years contrary to s.474.27(1) and four offences of using the Internet to expose a person under 16 years to indecent material contrary to s.218A(1)(b) Criminal Code (Qld) (an offence punishable by a maximum penalty of five years' imprisonment).
The offender pleaded not guilty and was convicted of the offences. He had no prior criminal history. He engaged in chats with a police officer posing as a 14-year old female on the Yahoo Message Program and MSN Messenger. He had sexually explicit chats with the assumed identity on 11 occasions over 10 days in a 31-day period. The offender gave the assumed identity instructions and encouragement to masturbate and to undertake other sexual activity on webcam. The offender exposed himself via webcam, but made no attempts to meet the person. The offender participated in an interview with police and claimed he thought the recipient was an adult male and that he did not believe that she was a child. He did not deny taking part in the chatroom conversations, but claimed they were a fantasy.
For the s.474.27(1) offence, the offender was sentenced to 27 months' imprisonment to be released after 13.5 months upon entering into a recognizance to be of good behaviour for three years. On each of the remaining counts, he was sentenced to eight months' imprisonment.
An appeal against conviction was dismissed and leave to appeal against sentence was refused.
Rampley v R
In Rampley v R, the 33-year old offender pleaded guilty to one offence of using a carriage service to groom a person under 16 years contrary to s.474.27(1). The offender had no relevant criminal history.
Over a period of four months, he engaged in sexually explicit chats with a police officer posing as a 12-year girl. He gave instructions on how to masturbate and sent adult pornographic videos and discussed a possible meeting for sex. His behaviour was said to be consistent with a diagnosis of paedophilia. The offender received treatment prior to sentence and had good prospects of rehabilitation.
The offender was sentenced to imprisonment for two years and nine months to be released after serving 18 months' imprisonment. An appeal against sentence was dismissed.
R v Asplund
In R v Asplund, the 65-year offender pleaded not guilty to two counts of using a carriage service to groom a child contrary to s.474.27(1).
Over a period of about three months, the offender engaged in online sexual chats and telephone calls with a real victim under 16 years of age. The offender posed as a 27-year old male and made a number of enquiries about the girl's sex life and asked for a picture of her genitals. The text messages included a planned meeting at a hotel for sexual purposes. The offender gave sums of money to the girl. The offender was employed as a fitter and turner. He had no prior convictions and had some degree of depression and loneliness. There were poor rehabilitation prospects.
On sentence in the District Court, the offender was sentenced to imprisonment for three years and six months with a non-parole period of one year and nine months.
A Crown appeal against sentence was allowed and the offender was resentenced to a total period of seven years' imprisonment with a non-parole period of four years.
Comparison Between the Applicant's Case and the Six Decisions
It will be apparent immediately that none of the six decisions involved sentencing an immature 18-year old offender, let alone one with a mental condition which served to reduce moral culpability and ameliorate the roles of specific and general deterrence. Of the six decisions, the youngest offender was 25 years old (Cooper v R).
On the other hand, it was the case that the Applicant's offences involved real victims and not undercover police pretending to be young persons, as was a feature in four of the Annexure "B" cases (Meadows v R; R v Engeln; R v Costello; Rampley v R). Real victims were involved in two cases (Cooper v R and R v Asplund).
The sentencing Judge was invited by the Crown written submissions (without challenge by the Applicant) to consider the six sentencing decisions for the purpose of obtaining "guidance as to the applicable unifying principles". Her Honour considered the six decisions and then "ensured that the sentencing outcome" fell "within the type of sentencing range" arising from the six decisions. Her Honour did not explain, even briefly, the features of the six decisions which served to identify a "type of sentencing range" to be applied in the Applicant's case.
It has been said that care should be taken to indicate to a sentencing Court the basis upon which other sentencing decisions are to be relied upon on sentence for a particular offender: R v Dinh (2010) 199 A Crim R 573; [2010] NSWCCA 74 at [60].
In Hili v The Queen, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said (at [48]-[49]) that consistency in federal sentencing "is not demonstrated by, and does not require, numerical equivalence" and that the "consistency that is sought is consistency in the application of the relevant legal principles". Their Honours said (at [49]) that "when it is said that the search is for 'reasonable consistency', what is sought is the treatment of like cases alike, and different cases differently". With respect to information concerning other sentencing decisions, their Honours said (at [52]-[54]) (footnotes omitted):
"53 Next, in seeking consistency, sentencing judges must have regard to what has been done in other cases. In the present matter, the prosecution produced detailed information, for the sentencing judge and for the Court of Criminal Appeal, about sentences that had been passed in other cases arising out of tax evasion as well as cases of customs and excise fraud and social security fraud. Care must be taken, however, in using what has been done in other cases.
54 In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: 'Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts.' But the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence'. Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence' (emphasis added). When considering past sentences, 'it is only by examination of the whole of the circumstances that have given rise to the sentence that 'unifying principles' may be discerned'."
In The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at [50], Bell and Gageler JJ said that "comparable cases decided by intermediate courts of appeal provide the most useful guidance to a sentencing judge" and that those "reasons reveal the mix of factors that were taken into account and will usually involve consideration of the appropriateness of the sentence imposed at first instance".
In Director of Public Prosecutions (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428; [2017] HCA 41, Gageler and Gordon JJ said at [83] (footnotes omitted):
"Sentences are not binding precedents, but are merely 'historical statements of what has happened in the past'. As was said in Hili v The Queen, '[t]hat history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits' (emphasis added). Examination of sentences imposed in comparable cases may inform the task of sentencing but such examination goes beyond its rationale when it is used to fix boundaries that, as a matter of practical reality, bind the court."
As the extracts from the sentencing remarks set out earlier reveal, the sentencing Judge made careful and detailed findings by reference to factors including the objective gravity of the offences, the Applicant's moral culpability and the weight to be given to specific deterrence and general deterrence in the circumstances of the case, in light of evidence concerning the Applicant's mental condition at the time of the commission of the offences. Her Honour had regard as well to the Applicant's age and immaturity at the time of the commission of these offences.
The question raised by this ground of appeal is whether, having undertaken a detailed analysis of the evidence and consideration of factors relevant to sentence, her Honour thereafter had regard in an erroneous fashion to other sentencing decisions to which reference had been made by the Crown. It is clear that her Honour was conscious of the need for care in considering other sentencing cases and was aware of the need to keep clearly in mind the particular circumstances of the case at hand.
The Applicant was 18 years old at the time of these offences. He had no prior criminal record. However, there had been incidents of a similar type which had occurred when he was 14 years old which gave rise to a police warning. As the sentencing Judge found, at the time of the offences, the Applicant was an immature and disturbed young man with a complex history of being bullied at school with consequential psychological harm and with self-destructive features and a pattern of serious depression. The Applicant's case was far removed from those of the offenders in the six cases raised for consideration on sentence.
Principles concerning sentencing of young adult offenders had particular application in this case. They were summarised recently in Yildiz v R [2020] NSWCCA 69, where Simpson AJA and N Adams J said at [2]:
"The applicant was 18 years and 5 months at the time of the offence and had no prior convictions. The principles with respect to sentencing young offenders have been stated many times by this court: KT v R (2008) 182 A Crim R 571; [2008] NSWCCA 51; BP v R (2010) 201 A Crim R 379; [2010] NSWCCA 159. Recently, in Howard v R [2019] NSWCCA 109 Fullerton J (with whom Macfarlan JA agreed, Bellew J in dissent) observed at [13]:
'It is not necessary to restate the principles articulated in a succession of authorities governing the sentencing of youthful offenders referred to by Bellew J, save to emphasise that the law recognises the potential for the cognitive, emotional and/or physiological immaturity of a young person to contribute to their breach of the law. It is also well recognised that emotional maturity and impulse control develop progressively during adolescence and early adulthood and may not be developed until a person's mid-20's'."
Although the Applicant was legally an adult, the evidence accepted by the sentencing Judge reflected a significant degree of immaturity which contributed to the offences. Added to this was the mental condition described by Mr McQuillen which her Honour found was causally linked to the offences.
There are few sentencing decisions for Commonwealth or State cybersex offences committed by young adult offenders.
In R v McGrath (2006) 2 Qd R 58; [2005] QCA 463, a 19-year old offender was sentenced for two offences of using the Internet with intent to procure a child under 16 years to engage in a sexual act (s.218A(1)(a) Criminal Code (Qld)) and three offences of using the Internet with intent to expose a child under 16 years to indecent matter (s.218A(1)(b) Criminal Code (Qld)). In allowing an appeal against a custodial sentence, the Queensland Court of Appeal had particular regard to the offender's youth and immaturity.
In Puhakka v R [2009] NSWCCA 290, a 20-year old offender was sentenced to terms of imprisonment for offences of possession of child pornography contrary to s.91H(3) Crimes Act 1900 (NSW). On appeal, his sentence was reduced. After considering a number of other sentencing decisions, Blanch J (Macfarlan JA and myself agreeing) said at [15]-[16]:
"15 This survey of cases reveals a wide range of sentences. Despite that they are consistent in denouncing this offence and emphasising the need for deterrent sentences. The main factor differentiating the sentences appears to be the subjective factors relating to the offender including age, prior criminal history and prospects of rehabilitation.
16 In this case the key subjective circumstances are the young age of the offender, his lack of criminal convictions and his prospects of rehabilitation appear to be good. His offending behaviour arose from his isolated social situation. The assessment has been made that he may be able to unlearn that behaviour and he was a third year university student with a professional career in prospect. Dr Westmore said 'I think his prognosis should be considered cautiously but perhaps with some optimism, particularly if he can continue the psychologist and particularly if therapy reveals that his primary or basic sexual drive is not of a paedophile type.' The assessment of the sentencing judge was undoubtedly correct that special circumstances exist to vary the statutory ratio, it is appropriate now to re-sentence the applicant in order to give effect to that assessment. The re-sentencing should reflect the applicant's prospects for rehabilitation."
In the unusual circumstances of this case, I am satisfied that the Applicant has made good this ground of appeal. The sentencing Judge has used, as measuring sticks for determination of a sentencing range, a series of cases which are materially and significantly different from the Applicant's case. No explanation was given by her Honour as to the features of these cases which served to furnish a range to be applied to the Applicant's case.
I am conscious that her Honour went on to mention her own experience of sentencing for this type of offence. No reference was made to any particular case in that respect.
This Court should not place unwarranted burdens upon sentencing Judges to say more than is necessary when sentencing an offender. However, where, as in this case, a limited selection of quite different cases is treated as providing a sentencing range, without any explanation or elaboration being given as to what features supported that conclusion, it is difficult to see how this had come about without error infecting the sentencing process.
The limited selection of dissimilar cases did not give rise to a "sentencing range", let alone one which her Honour was to apply "to ensure that the sentencing outcome" in the Applicant's case fell within that "sentencing range".
This Court should proceed upon the basis that the sentencing Judge applied these six sentencing decisions, in the manner stated in the sentencing remarks, to erect a sentencing range to be applied in sentencing the Applicant. In my view, her Honour fell into error in this respect.
I would uphold the third ground of appeal.
However, there were features of the offences which operated against the Applicant on sentence. This was a case where the guideposts to the appropriate sentence for the Applicant pointed in different directions: Veen v The Queen (No. 2) (1988) 164 CLR 465 at 476; [1988] HCA 14.
The Applicant's offences involved real young victims. Cybersex crimes involving real young victims render the offences more serious: R v Fuller [2010] NSWCCA 192 at [35], [45].
Courts have emphasised the fact that cybersex offences involving communications by an offender with an undercover police officer posing as a child does not constitute a mitigating factor on sentence: Meadows v R at 12. An offence is no less reprehensible when an offender is communicating with a fictitious person believed to be a child: Rampley v R at [37].
In the present case, the Applicant was aware that at least some of the victims were 14 years old. Despite his own youth and immaturity, the Applicant was aware of the vulnerability of these victims and deliberately chose to take advantage of them with the offences not being committed on the "spur of the moment": Director of Public Prosecutions v SJK and GAS [2002] VSCA 131 at [61]-[62].
Further, as noted earlier (at [126]-[128]), sentencing courts should approach cybersex offences involving real victims upon the basis that harm is done to those child victims: Adamson v R; R v Gavel.
In this case, there was a victim impact statement from Victim A which addressed that issue directly. As in Martin v R [2019] NSWCCA 197 at [75], one of the Applicant's victims made a victim impact statement which recounted the harm done to that young girl as a result of his offending. It is necessary to take the victim impact statement into account for the purposes of ss.16A(2)(ea), 16AAA and 16AB Crimes Act 1914 (Cth).
Other young girls were harmed by the Applicant's offences, as borne out by their messages to the Applicant which reflected fear, anxiety and distress as he placed increased pressure on them to provide him with child abuse images of themselves. The victims were exploited, threatened and manipulated by the Applicant for his own purposes.
In my view, it remains the case that sentences of fulltime imprisonment are the only appropriate sentencing options for these offences having regard to all the circumstances of the case: s.17A Crimes Act 1914 (Cth); s.5 Crimes (Sentencing Procedure) Act 1999 (NSW).
The six sentencing decisions relied upon by the Crown in the District Court assist by way of statements of principle contained in them. They do not assist by creation of a sentencing range to be deployed in the Applicant's case. They are no more than examples of sentencing outcomes in dissimilar cases involving cybersex offences.
It is appropriate to maintain (with some rounding) the 25% discount to reflect the utilitarian value of the Applicant's pleas of guilty to each Commonwealth and State offence. In accordance with principle, the Applicant's contrition and remorse will be taken into account in his favour without quantification.
The custodial component of the sentences should reflect the minimum period which the Applicant should spend in custody having regard to all the circumstances of the case.
The Applicant's prospects of rehabilitation and reduction of his risk of reoffending will be substantially enhanced, in the public interest, by an extended period of conditional liberty as part of the overall sentencing outcome.
For the purpose of s.6(3) Criminal Appeal Act 1912 (NSW), I am satisfied that lesser sentences should be imposed upon the Applicant.
The overall effective sentence will comprise a total sentence of imprisonment for 22 months from 4 June 2019 with the Applicant to be released after 11 months on 3 May 2020, in accordance with ss.19AC(1) and 20(1)(b) Crimes Act 1914 (Cth), by way of a recognizance release order upon his entering into a recognizance in the sum of $1,000.00 to be of good behaviour for three years.
The total effective sentence of 22 months' imprisonment involves a measure of accumulation of the sentences for separate offences which involved different victims.
It is appropriate to repeat the recommendation made by the sentencing Judge that the Applicant should undergo psychological or psychiatric counselling as part of his recognizance.
I propose the following orders:
1. grant leave to appeal against sentence;
2. quash the sentences imposed upon the Applicant at the Sydney District Court on 4 June 2019;
3. in their place, sentence the Applicant as follows:
(i) for the offence in Sequence 1, a fixed term of imprisonment for seven months commencing on 4 June 2019 and expiring on 3 January 2020;
(ii) for the offence in Sequence 3, imprisonment for 16 months commencing on 4 June 2019 and expiring on 3 October 2020;
(iii) for Sequence 4, taking into account the offence in Sequence 10 under s.16BA Crimes Act 1914 (Cth), imprisonment for 18 months commencing on 4 August 2019 and expiring on 3 February 2021;
(iv) for Sequence 9, imprisonment for 18 months commencing on 4 October 2019 and expiring on 3 April 2021;
(v) with respect to each of the sentences for Sequences 3, 4 and 9, direct that the Applicant be released by way of recognizance release order on 3 May 2020, after serving 11 months' imprisonment, upon the Applicant entering into a recognizance to be of good behaviour for a period of three years;
(vi) a recommendation is made that the Applicant undergo psychological or psychiatric counselling as part of his recognizance;
(vii) confirm the forfeiture order made on 4 June 2019 under s.23ZD Crimes Act 1914 (Cth) with respect to the Applicant's iPhone 6 seized by police on 27 March 2017.
N ADAMS J: I agree with the orders provided by Johnson J for the reasons provided by his Honour.
IERACE J: I agree with the orders proposed by Johnson J and with his Honour's reasons.
If this Court finds error has been demonstrated and moves to resentence the Applicant, the sentencing orders of this Court will need to accord with the provisions of the Crimes Act 1914 (Cth).