Lyons v R

Court of Criminal Appeal (NSW)|2017-08-11|Before: Simpson JA, Harrison J, Davies J

Solicitors: Legal Aid NSW (Applicant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2015/372841 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 16 December 2016 Before: McLennan DCJ File Number(s): 2015/372841

Judgment

SIMPSON JA: I agree with Davies J.
HARRISON J: I agree with Davies J.
DAVIES J: The applicant was initially charged with 15 offences involving child pornography. He ultimately pleaded guilty in the Local Court at Griffith to the following offences: (a) Sequence 1: Possess child abuse material, s 91H(2) of the Crimes Act 1900 (NSW); (b) Sequence 9: Use carriage service to transmit child pornography material, s 474.19(1) of the Criminal Code (Cth); (c) Sequence 2: Use carriage service to transmit child pornography material, s 474.19(1) of the Criminal Code (Cth); (d) Sequence 13: Use carriage service to make available child pornography material, s 474.19(1) of the Criminal Code (Cth); (e) Sequence 15: Use carriage service to make available child pornography material, s 474.19(1) of the Criminal Code (Cth); and (f) Sequence 10: Commit offence against s 474.19(1) in that he made child pornography available on three or more occasions, where the commission of each offence involved two or more people, s 474.24A of the Criminal Code (Cth).

The facts of the offending

The sentencing judge found the following facts.
The charges arose out of information received by the Australian Federal Police (AFP) on 17 December 2015 from the United States of America's Department of Homeland Security Investigations (HSI) in respect of KIK mobile instant messaging user goodbadsweet. Review of the goodbadsweet access logs showed that the Internet Protocol (IP) address associated with the user was IP: 101.191.131.131. An IP address is a unique identifier of an internet account utilised by a computer to connect to the Internet. The IP address can be utilised to identify the internet account subscriber. It is assigned by the relevant internet service provider at a specific time and date.
The AFP made enquiries with Asia Pacific Network Information Centre (APNIC) which showed that the IP address just referred to was assigned to the ISP Telstra Corporation (Telstra). Telstra shows that the IP address referred to was assigned to the account holder Ms Bindee Fair Jobe born on [date identified] of XX Brooks Street Griffith, New South Wales 2680. An authorised contact recorded on this account was Mr Bradley Lyons, the applicant, born on 24 March 1970.
As a result of that information, on Friday 18 December 2015 at the Queanbeyan Local Court, the AFP applied for and were granted (a) a s 3E Crimes Act 1914 (Cth) search warrant in relation to XX Brooks Street Griffith, the applicant and vehicles associated with the applicant and (b) s 3LA Crimes Act orders in respect of the applicant and Bindee Fair Jobe.
On Saturday 19 December 2015 AFP child protection members attended Brooks Street, Griffith, New South Wales where the search warrant for the premises was executed. Present during the execution of the search warrant were the applicant, Ms Jobe and their three year old daughter. AFP officers had a number of recorded conversations with the applicant and Ms Jobe.
An Apple iPhone 6 Plus mobile telephone was found in the possession of the applicant. During the digital forensic examination of the iPhone Plus the AFP identified the user account details as 'boris sweet' and the email account as boris.sweet@yandex.com associated with a Tumblr application installed on the device. Tumblr is a social media blogging platform in which texts, videos and pictures can be posted by users. When questioned about the user and email account details associated with the Tumblr application on his iPhone 6 Plus, the applicant (a) confirmed he held a Tumblr account and (b) denied any knowledge of the user and email address details boris sweet and boris.sweet@yandex, initially stating he thought it was the bblyons@outlook.com email and then later stating it was the email account bradley1@hotmail.com that was linked to his Tumblr account. When further questioned regarding applications identified on his iPhone 6 Plus relating to cloud data storage apps, Dropbox, Box, CloudMail, Yandex and Mail.ru, the applicant declined to comment.
The applicant was subsequently served with the Crimes Act 1914 s 3LA order which compelled him to provide account and password details and he was afforded time to comply with the order. He subsequently provided a number of user names and passwords but refused to provide details for the boris.sweet@yandex.com email account. The user names and passwords provided by the applicant were verified against the relevant accounts including the password for the Tumblr account using the boris.sweet@yandex.com email account.
Digital forensic examination of the Bradley Lyons user account on the Apple iMac computer located at the execution of the search warrant identified a historical search term stored in the web browser (Safari) to the site yandex.com and information pertaining to the user name boris.sweet. Using this information the police were able to access this account. Having accessed this account police identified the account as the email account for the email address boris.sweet@yandex.com.
Review of the contents of the boris.sweet@yandex.com email account identified a number of email messages sent from this account to numerous other email recipients. Review of these sent email messages revealed they contained child pornography images and/or links which resolved to images that constituted child pornography material as defined by s 473.1 of the Commonwealth Criminal Code. Review of the email messages contained in the email account boris.sweet@yandex.com indicated the user of the account traded in child exploitation material.
About 8.30pm on the same day the applicant was shown an email sent from the boris.sweet@yandex.com email account which contained 21 attachments identified as child exploitation material. The email was sent at 9.15pm on 4 November 2015 to the recipient minikutje@yandex.ru. When questioned about these images the applicant replied, "No comment". Police seized the applicant's Apple iPhone and iMac computer which were used to access and transmit child pornography material in addition to the boris.sweet@yandex.com email account and Dropbox account utilising the account login information boris.sweet@yandex.com.
The applicant made a number of admissions during recorded conversations with investigating officers during the execution of the search warrant on 19 December 2015, including that (a) he used the iPhone 6 Plus and no one else used it, (b) he used the email account bradley1@hotmail.com when he wanted to "sign up for something", (c) he had the Tumblr application installed on the iPhone 6 Plus which he had used for about eight months to access adult pornography, and he thought it used the email account bblyons@outlook.com as the account details, and (d) he used the email address bradley1@hotmail.com for setting up his Tumblr account but he could not say for how long he had used it.
During these conversations the applicant denied (a) knowledge of the user names boris, boris sweet and the email address boris.sweet@yandex.com that were associated with his Tumblr account, (b) knowledge of Yandex but was unable to state why the Yandex disc application was installed on his iPhone 6 Plus and why the email address boris.sweet@yandex.com was used as the account to access his Tumblr application, and (c) using a carriage service to access and transmit child pornography material.
Digital forensic examination of the Bradley Lyons user account on the seized Apple iMac computer showed that (a) Yandex mail was an historical term stored in the Apple iMac computer's web browser Safari, (b) selecting this search term resulted in Safari opening the Yandex mail login webpage where the user name boris.sweet was prefilled in the username form field and (c) configuration settings within the Apple iMac operating system did not save the password for this account. Despite the applicant stating that he had no knowledge of the boris.sweet@yandex.com email account the security log showed the account was accessed 113 times over a 42 day period.
In respect of the possess child abuse material offence (sequence 1), examination of the boris.sweet@yandex.com email account showed security logs which indicated the account was accessed from an Australian based IP address. The account was accessed 113 times over the period 6 November 2015 to 17 December 2015, which is 42 days, and the account contained 390 non-duplicate child pornography files which were later categorised in accordance with the Child Exploitation Tracking System (CETS).
The CETS 1 classification deals with depictions of children with erotic posing but no sexual activity. CETS 2 deals with pictures and videos depicting sexual activity between children or solo masturbation by a child. CETS 3 deals with non-penetrative sexual activity between adults and children. CETS 4 deals with penetrative sexual activity between adults and children and CETS 5 deals with sadism, humiliation, bondage, torture or bestiality.
The agreed facts reproduced tables analysing the material in accordance with the classifications in respect of this offence. There were 300 image files in the CETS 1 classification, 17 image files and two video files in the CETS 2 classification, 29 image files and three video files in the CETS 3 classification, 22 image files and nine video files in the CETS 4 classification and three image files and five video files in the CETS 5 classification.
In respect of sequence 9, the charge of transmitting child pornography material, on 9 December 2015 child pornography material was transmitted through one email sent from the boris.sweet@yandex.com email account to another user. That email attached 32 child pornography files. The total number of categorised child pornography images was as follows. In the CETS 1 classification there were 16 image files. In the CETS 2 classification there were four image files. In the CETS 3 classification there were seven image files. In the CETS 4 classification there were three image files. In the CETS 5 classification there were two image files.
In respect of sequence 2, also a charge of transmitting child pornography material, on 4 November 2015 child pornography material was transmitted through seven emails sent from the boris.sweet@yandex.com email account to other users. Four of those emails attached 20 child pornography files, two of those emails attached nine child pornography files, one of those emails attached four child pornography files and each email had a single recipient. The total number of categorised child pornography images and videos (including duplicates) transmitted were as follows. In the CETS 1 classification there were 50 image files. In the CETS 2 classification there were no image files or video files. In the CETS 3 classification there were 29 image files. In the CETS 4 classification there were 19 image files and in CETS 5 there were four video files.
In respect of sequence 13, the offence of making child pornography available, between 26 October 2015 and 1 December 2015 child pornography material was made available by email user boris.sweet@yandex.com in four emails sent on 26 October 2015 and 2 November 2015 and in two emails on 1 December 2015. Each email had one recipient. Three emails each contained one active Cloud Storage Uniform Resource Locator (URL) hosting child pornography material. One email contained six active URLs. The total number of categorised child pornography images and videos which were made available through active Cloud Storage URLs were six image files in the CETS 1 classification. There was no other material that fell into any other classification.
In respect of sequence 15, on 7 December 2015 child pornography material was made available by email user boris.sweet@yandex.com in one email. The email had two recipients. The email contained four active Cloud Storage URLs hosting child pornography material. The total number of categorised child pornography images and videos which were made available through active Cloud Storage URLs were as follows. In respect of CETS 1, there were 30 image files and seven video files, in respect of CETS 2, there were five image files and 40 video files. In respect of CETS 3, there were two image files and 11 video files. In respect of CETS 4, while there were no image files there were 43 video files. In CETS 5, there were no image files but two video files.
In respect of sequence 10 between 26 October 2015 and 2 November 2015 child pornography material was made available by email from the boris.sweet@yandex.com email account on four occasions to a total of 161 email recipients. Two emails contained 50 recipients, one contained 49 recipients and one contained 12 recipients. A total of 38 active Cloud Storage URLs hosting child pornography material was made available. Each email contained between one and 14 of those active URLs, and each email was specifically created by the user of boris.sweet@yandex.com. That is, the material was not forwarded from a previous email thread.
The total number of categorised child pornography images and videos which were made available through active Cloud Storage URLs were as follows. In the CETS 1 classification there were 134 image files and ten video files. In the CETS 2 classification there were two image files. In relation to the CETS 3 classification there were seven image files. In relation to the CETS 4 classification there were two image files and 60 video files. There was nothing in the CETS 5 classification.
When considering the totality of the child pornography material involved in this matter, the AFP determined that the material involved victims ranging from infants to approximately 14 or 16 years of age. However, the majority of the material involved victims aged approximately five to six years of age to 14 or 15 years of age.
The sentencing judge noted that the CETS scale was widely known and used to classify child pornography material, see R v Porte [2015] NSWCCA 174 at [73]-[77]. His Honour was asked to, and he did, review sample images. The CETS scale has an almost identical classification system as the Oliver scale - see R v Linardon [2014] NSWCCA 247 at [9].

Subjective matters

The applicant gave evidence at the sentence proceedings. His Honour also had a report from Dr Jeremy O'Dea, a well-known forensic psychiatrist. Dr O'Dea had been treating the applicant for his compulsive internet pornography use from February 2013, almost three years before the applicant was charged.
The evidence at the sentencing hearing disclosed that the Federal Police had raided the applicant's home in about 2013 when they found child pornography. It appears there was not sufficient evidence to charge the applicant but one of the police officers advised him to get medical or psychiatric assistance. That is what led him to consult with Dr O'Dea.
He continued seeing Dr O'Dea for some nine months on ten separate occasions in 2013. He had a further appointment with Dr O'Dea in January 2014 but he did not keep that appointment. In his evidence at the sentencing hearing he explained that it was costing about $1000 each time he went to Sydney to see Dr O'Dea by the time he had paid for travelling, a motel room and the $400 fee to see Dr O'Dea.
He said that he remained abstinent from accessing pornography of any sort for a period of about 18 months before he relapsed in October 2015. The applicant said at the sentencing hearing, and he had told Dr O'Dea, that part of the reason he accessed the child pornography was the thrill it gave him knowing that it was wrong to do so. The evidence disclosed that his interest in pornography first occurred because of sexual difficulties in his first marriage.
Dr O'Dea did not find that the applicant had any major psychiatric illness. He did note from his criminal history and his history of general interpersonal functioning that he may have had a vulnerable personality with antisocial traits.
Dr O'Dea considered that the applicant suffered from a sexual disorder. Significantly, Dr O'Dea said this: 35. Compulsive internet pornography use is becoming an increasingly recognised clinical problem for at least some men, with increasingly recognised associated problems in their sexual relationships in real life, including with unmasking and promoting of deviant sexual interests and orientations; with Mr Lyon's reported progression from general to child pornography an increasingly recognised and concerning clinical pathway.
The evidence disclosed that the applicant's childhood and teenage years were not free from trouble at school and outside school. The applicant commenced using alcohol and marijuana in his mid-teen years although that was not considered to relate to the present offending. Nevertheless, the applicant's alcohol use led to anger management problems which in turn led to a number of criminal convictions that involved property offences and offences of personal violence. He was dealt with for all of these offences by various forms of conditional liberty although he did not always adhere to the terms of that conditional liberty.
Despite difficulties involving his education the applicant became a qualified boilermaker. The applicant has two children from his first marriage with whom he spends a great deal of time, and he and his current wife have one young child.
His wife provided a letter to the court attesting to the applicant's qualities as a husband and father, and indicating her ongoing support of the applicant. The applicant gave evidence that he and his wife sold their house so that he could afford to pay for ongoing counselling.

Ground 1: The sentencing judge erred in his assessment of the objective seriousness of the offences

Submissions

The applicant submitted that the sentencing judge assessed the objective seriousness of the whole of the offending together whereas he ought to have assessed the criminality involved in each offence individually. That would involve taking into account the matters mentioned in Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243. The applicant criticised the way the sentencing judge dealt with the matters referred to Minehan and his approach to the relative seriousness of different categories of the CETS scale.
The applicant submitted that the sentencing judge's description of the offending as "very grave conduct indeed" could not reasonably be a reflection of the objective seriousness of each of the separate offences. Particular reference was made in that regard to sequence 13 that involved a total of only six images but no videos, all of which were classified at CETS 1. The four emails were sent to a single recipient.
The Crown submitted that a proper reading of the sentencing remarks demonstrates that the sentencing judge assessed the objective criminality of each individual offence. The Crown submitted that his Honour appropriately referred to a number of different factors many of which are referred to in Minehan and other significant authorities such as Porte.
The Crown submitted that when account was taken of the different sentences imposed for each of the offences it was clear that the sentencing judge did not make a global assessment that failed to assess the criminality involved in each of the offences. The Crown submitted that the applicant's submissions overstated the weight to be given to the number of images in the assessment of the criminality involved.

Consideration

Under the heading "Objective seriousness analysed" his Honour said this: There are in total 885 images with which I am concerned. Mr McGrath has calculated that 62% of the images are classified as CETS 1. As the Court in R v Porte in para 77 correctly observed, it should not be assumed that category 1 is mild in content. Despite being the lowest classification level, category 1 material itself is capable of possessing significant gravity. Although only 2% of the images were CETS 5 level, that alone in my view is bad enough. I note that 11 were video files featuring material which, by definition, involves sadism, humiliation, bondage, torture or bestiality. However, 158 of 885 of the images and videos were classified as CETS 4. That is something just under 20%. That is a category that is, in my view, especially reprehensible, because images of bondage do not necessarily involve penetrative sexual activity.
His Honour then went on to consider what he described as basic matters concerning the simple possession of the material. It may reasonably be inferred that his Honour was there referring to sequence 1, being the offence of possessing the material. His Honour then noted that possession created a market for the continued corruption and exploitation of children, that the offence was not a victimless crime, that victims were captured for eternity, that every act of viewing for pleasure perpetuated the abuse and it was right to regard the offender as an abuser of children.
His Honour quoted part of Simpson J's judgment in R v Booth [2009] NSWCCA 89. He then made reference to submissions made on behalf of the applicant about the appropriateness of considering the factors mentioned in Minehan. His Honour concluded this section of his Remarks by saying this: However, in my respectful view, it is wrong to approach the matters referred to in Minehan in some mechanistic way as though there was a checklist to address, the presence or absence of one feature leading necessarily to a corresponding increase or decrease in the sentence. Likewise, while a mathematical analysis of the CETS tables in the Crown's facts is not unhelpful, the outcome in this case cannot be determined in that way.
His Honour then dealt with subjective matters pertaining to the applicant under the heading "The context of the offending". Next, he turned to the Commonwealth offences under a heading "The dissemination of pornography". In that section of the Remarks his Honour said this: The various Commonwealth offences deal with the offender sending a total of 17 emails to 172 people. Four of the five offences have maximum penalties of 15 years imprisonment. One has a maximum penalty of 25 years imprisonment. The absence of a financial motive does not mitigate the offence. I regard the multiple dissemination of these appalling images to over 170 people, to be very grave conduct indeed. The offender has perpetuated his own offending by enabling others to join in his abuse of these children. The exploitation and corruption of these children is magnified 170 times over. To remind Mr Lyons, the bulk of this material involved victims aged between five to six years to 14 to 15 years. Nothing that is put before me excuses or justifies this conduct, conduct which extended over approximately six weeks.
Finally, under a heading "Other matters" his Honour dealt with the applicant's early pleas, his limited co-operation with authorities, the letter from the applicant's wife showing her support for the applicant, and the comparable cases that had been provided by the Crown. Relevantly for the present ground of appeal his Honour then said this: It is some times said the relationship between the maker of pornography and those who use it is akin to the relationship between receivers and thieves, see McMurdo P in R v C [2004] QCA 469. To my mind, offenders such as Mr Lyons who revel in this type of content and facilitate the enjoyment of others by dissemination are more closely aligned morally with the perpetrators of the abuse. The line between perpetrator and voyeur exists, but in the context of offending for this type of conduct the line is, in my view, a very thin one. I have had regard to the content and quantity of the material. I have had regard to his dissemination of it to over 170 people. I have regard to the period of time over which this conduct extended but informed by the facts that this is the escalation of a continuum the commencement of which was in 2012. I have regard to the principles in the cases to which I have referred. I have regard to his pleas of guilty and the other matters in his subjective case that I have discussed. I will accumulate the sentences keeping in mind the totality principle. Self-evidently, there is no other sentence both in respect of the state offences and Commonwealth offences that is appropriate other than imprisonment.
In Sponberg v R [2017] NSWCCA 120 Macfarlan JA (with whom Latham and Campbell JJ agreed) said: [23] As Simpson J said in R v Campbell [2014] NSWCCA 102 at 27, "[t]he assessment of objective seriousness is, and has always been, a critical component of the sentencing process". This remains the position notwithstanding the High Court decision in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39. [24] As Latham J said in R v Cage [2006] NSWCCA 304 at [17], "[a] bare recitation of the facts constituting the offences and a reference to the 'objective features of the offences' does not satisfy the requirements of sentencing" (see also R v Van Ryn [2016] NSWCCA 1 at [129]). Where an offence is "not so grave as to warrant the imposition of the maximum prescribed penalty", a sentencing judge "is bound to consider where the facts of the particular offence and offender lie on the 'spectrum' that extends from the least serious instances of the offence to the worst category, properly so called" (R v Kilic (2016) 91 ALJR 131; [2016] HCA 48 at [19]; and see Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46 at 452). As RA Hulme J said in Van Ryn, "[i]t is one thing to refer to the general proposition that child sexual assault is a serious crime; it is another to identify the relative seriousness of the case at hand" (at [137]). This observation can be applied outside of the sexual crime context in which it was made. [25] In the present case, the sentencing judge did not indicate where the applicant's Count 1 offence lay in the spectrum of offences, nor did he make any assessment at all of its objective seriousness (see Van Ryn at [133]). As indicated in [20] above, his Honour was recorded as saying "Charge 1 is a very serious, large amount of drugs involved". It is possible that his Honour was intending to make a statement in that sentence about the seriousness of the applicant's offending. Nevertheless, this Court can do no more than act upon the words recorded which, read literally, relate to the amount of drugs involved, and not to an assessment of the objective seriousness of the offence. Whilst the weight of the drug involved is a relevant factor in assessing the objective seriousness of an offence, it is not the only, or even chief, factor (Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [67]-[70]). The language that the sentencing judge used in relation to the Count 1 offence is to be contrasted with the language he used in relation to the Count 2 offence, which he described as "near the bottom of seriousness for these type of offences" ([20] above). [26] It is to be expected that there will be infelicities of expression in judgments given by judges who are subject to the demands and pressures of busy lists, and the focus of this Court should be on substance rather than form (as to the latter proposition see Delaney v R (2013) 230 A Crim R 581; [2013] NSWCCA 150 at [56]). Nonetheless, the inescapable conclusion in the present case is that his Honour's sentencing judgment does not contain an assessment of the objective seriousness of the Count 1 offence, either relative to other offences of its type or at all.
The Crown, in submissions before the sentencing judge, provided useful tables for each of the offences and the classification of the material using the CETS classification. Those tables disclose the following information in relation to each charge (corrected for obvious errors): Charge One: Possession of child abuse material CETS Classification Image files Video files Total CETS 1 300 0 300 CETS 2 17 2 19 CETS 3 29 3 32 CETS 4 22 9 31 CETS 5 3 5 8 Total 371 19 390

Charge Two: Transmit child pornography material CETS Classification Image files Video files Total CETS 1 50 0 50 CETS 2 0 0 0 CETS 3 29 0 29 CETS 4 19 0 19 CETS 5 0 4 4 Total 98 4 102

Charge Nine: Transmit child pornography material CETS Classification Image files Video files Total CETS 1 16 0 16 CETS 2 4 0 4 CETS 3 7 0 7 CETS 4 3 0 3 CETS 5 2 0 2 Total 32 0 32

Charge Ten: Make child pornography available on three or more occasions, where the commission of each offence involved two or more people CETS Classification Image files Video files Total CETS 1 134 10 144 CETS 2 2 0 2 CETS 3 7 0 7 CETS 4 2 60 62 CETS 5 0 0 0 Total 145 70 215

Charge 13: Make child pornography available CETS Classification Image files Video files Total CETS 1 6 0 6 CETS 2 0 0 0 CETS 3 0 0 0 CETS 4 0 0 0 CETS 5 0 0 0 Total 6 0 6

Charge 15: Make child pornography available CETS Classification Image files Video files Total CETS 1 30 7 37 CETS 2 5 40 45 CETS 3 2 11 13 CETS 4 0 43 43 CETS 5 0 2 2 Total 37 103 140

Those tables do not provide any assistance in understanding how the sentencing judge viewed the objective seriousness of each offence when regard is had to the sentences imposed for each of the offences. In some cases it is possible to discern from the sentence imposed how the objective seriousness of the offence was regarded by a sentencing judge. However, when regard is had in the present case to the number and nature of the files in each charge together with the number of emails sent and the number of recipients, that exercise produces no clarity.
Charge 13 highlights the inability to make an assessment from the sentence imposed how his Honour viewed the objective seriousness of each of the offences. That is not to say that the objective seriousness should have been directly proportionate to the number or nature of the files in respect of each charge. However, in circumstances where a three year penalty was imposed for that offence as a result of six emails being sent each to one recipient containing only six files all in CETS 1, in terms of what was known about the individual offences that offence would have to be regarded as the least serious.
Apart from his Honour's recounting of the facts in relation to each charge and dealing separately with the possession offence when considering objective seriousness, there is nothing in his Honour's Remarks that distinguishes amongst the various offences. Indeed, his Honour's brief remarks under the heading "The dissemination of pornography" clearly deal collectively and not separately with the five Commonwealth offences. Further, when his Honour did deal separately with the possession charge, his Honour did not assess its objective seriousness. Rather, his Honour made a number of general comments that were appropriate to all of the offending. His quotation from Booth only highlights that matter.
I do not overlook what was said by Hoeben CJ at CL (Harrison and Beech-Jones agreeing) in Delaney v R; R v Delaney [2013] NSWCCA 150 at [56]. Unlike the position in Delaney, a reading of the Remarks as a whole does not enable me to reach any conclusion about how his Honour assessed the objective seriousness of each of the offences.
It may be accepted, as Macfarlan JA noted in Sponberg at [26] that this matter was dealt with in the course of a busy list by the sentencing judge. However, although his Honour initially intended to sentence the applicant one week after he heard the submissions, in fact his Honour sentenced the applicant in a reserved judgment delivered some three weeks later. I would uphold this ground of appeal.

Ground 2: The sentencing judge erred in his application of the totality principle

Submissions

The applicant submitted that the sentencing judge disclosed no reasoning for the degree of accumulation of the sentences. The applicant drew attention to what was said in Cahyadi v Regina [2007] NSWCCA 1; (2007) 168 A Crim R 41 and submitted that although the conduct was not isolated in that the applicant had previously been involved in similar offending, the entire period of offending took place over a period of less than two months. Sequence 13 concerned a very small number of images, sequences 9 and 15 each concerned a single email, sequence 9 had a single recipient, and sequence 15 had only two recipients.
The Crown submitted that his Honour expressly referred to the totality principle, the application of which was a discretionary judgment in the sentencing exercise. The Crown submitted that the applicant acknowledged that the sentences required partial accumulation.
The Crown pointed to the fact that although each of sequences 9, 2, 13 and 15 were accumulated by 12 months on the preceding sentence, the sentence for sequence 15 was effectively wholly concurrent with that of sequence 10.
The Crown submitted that the degree of accumulation on the State offence of 12 months was entirely appropriate because the State possession offence and the Commonwealth offences were distinct. The State offence does not involve use of, or dissemination by means of, the internet. The applicant's possession of child pornography should properly be regarded as a separate episode of criminality.
The Crown submitted that the five Commonwealth offences were distinct in important respects. They involved separate instances of dissemination offending on different days to different recipients and impacted on different victims. In that way each offence represented a discrete and independent criminal act. Sequence 10 was particularly serious given that it involved ongoing transmission of a significant quantity of child pornography including 60 videos classified as CETS 4 to a substantial number of people (161) over seven days.
The Crown further submitted that the sentencing judge's determination of the single non-parole period involved an exercise of judicial discretion.

Consideration

All that his Honour said in relation to totality was this: I will accumulate the sentences keeping in mind the totality principle. Nowhere does his Honour give any clue as to the basis upon which he accumulated each of the first five sequences by a period of 12 months nor why he wholly subsumed the sentence for sequence 15 in the sentence for sequence 10. The offence in sequence 15 took place on 7 December 2015 by one email with two recipients. On the other hand, the offence constituted by sequence 10 took place on four occasions between 26 October and 2 November 2015. That was undoubtedly a serious offence with 161 recipients of those emails. However, the offence in sequence 15 does not appear to have had any connection to it.
It may be accepted that the possession count was significantly distinct from the various Commonwealth offences involving transmission. In that regard nothing in particular suggests that the accumulation of 12 months on the possession offence was an error. Nevertheless, in terms of the number of images, the number of emails and the number of recipients the offending in sequence 9 was at the lower end of the scale compared with the offending in sequence 2 where a further 12 months accumulation was applied. Sequence 2 involved 102 images, seven emails each with one recipient.
Thereafter, sequence 13, which involved the smallest number of files transmitted all of which were classified as CETS 1 and involved six emails each to one recipient, resulted in a further 12 month accumulation period. That was so notwithstanding the sentence itself imposed for sequence 13, about which I have already mentioned.
To some considerable extent the difficulty in understanding the basis for the accumulation is caught up with his Honour's failure to identify the objective seriousness of each offence. Factors that might have been identified in relation to the objective seriousness may have given some clue as to the basis for the accumulation.
When viewed overall, although the offending was serious because of the number and the nature of the images, it took place over a relatively short period of time and was committed by someone with a diagnosed sexual disorder that involved an addiction to pornography. In those circumstances the sentence was, from a totality perspective, a severe one both as to its non-parole period and the overall sentence.
In the circumstances where it is not possible to discern from the factual material the basis for his Honour's accumulation and where no explanation has been given for it, the only conclusion that can be reached is that error has been demonstrated. The error is in the final category in House v The King where no specific error can be identified but the result points to error having been made. Error is also demonstrated by the failure to provide reasons for the basis for the accumulation.
I would uphold this ground of appeal.

Ground 3: The sentence is otherwise manifestly excessive

In the light of the errors in grounds 1 and 2 already identified it is not necessary to deal with this ground.

Submissions

The applicant, whilst accepting that the subjective circumstances of an offender for offences of this nature should not overshadow the objective gravity of the crimes for which sentence is to be passed (Porte at [128] and R v De Leeuw [2015] NSWCCA 183 at [70(h)], submitted that there were a number of features in the applicant's subjective case which should have operated in his favour. Those were: (a) His midlife compulsive internet pornography use arising from difficult marital circumstances, that progressed to child pornography use as opposed to a longstanding and fixed paedophilic orientation; (b) The fact that he had voluntarily sought out and paid considerable sums for treatment to Dr O'Dea until he was not able to afford the treatment any longer; (c) The fact that he had achieved a period of abstinence from pornography use of 18 months or more after his treatment ended so that his offending was not "part of an escalating continuum that commenced in 2012"; and (d) The evidence of his remorse together with his wife's support and their agreement to use money from the sale of their house for his continued treatment.
The applicant submitted, noting the limited use that could be made of comparative cases, that there was a marked disparity between the sentences in the comparative cases and those imposed upon the applicant.
The Crown submitted that each of the offences called for a significant component of general deterrence. The Crown submitted that the objective criminality was high including because of the number of people to whom the material was disseminated.
The Crown said that the following matters were pertinent from Mineham v R: (a) The use of actual children in the material; (b) For the dissemination offences, the transmissions were made to 175 people in total; (c) The material included images and videos of the gross abuse of very young children including infants; (d) The material possessed and transmitted included images and videos falling within categories 3, 4 and 5 of the CETS categories with approximately a fifth of the material classified as falling within category 4; (e) The material indicates that several hundred individual child victims were depicted; (f) 880 files including 196 videos demonstrated a significant quantity of child abuse material; (g) The account used for transmitting and making available the material was in a false name leading to the overwhelming inference that the applicant opened the account for the purpose of transmitting child pornography.
The Crown submitted that the subjective circumstances of the applicant were not such as to mitigate the objective gravity of the crimes.

Consideration

In De Leeuw Johnson J (with whom Ward JA and Garling J agreed) said: [72] Appellate courts throughout Australia have consistently stated that the following propositions apply to sentencing for child pornography offences: (a) Unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted: R v Jongsma [2004] VSCA 218; 150 A Crim R 386 at 395 [14]; Hill v Western Australia [2009] WASCA 4 at [28]; R v Booth [2009] NSWCCA 89 at [48]; R v Sykes [2009] QCA 267 at [24]; DPP v Groube [2010] VSCA 150 at [24]; DPP (Cth) v D'Alessandro [2010] VSCA 60; 26 VR 477 at 483-4 [21]; Director of Public Prosecutions (Cth) v Guest [2014] VSCA 29 at [23]-[24]; DPP v Smith [2010] VSCA 215 at [23], [26]-[29]. (b) The objective seriousness of the offending is ordinarily determined by reference to the following factors: (i) the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted; (ii) the number of items or images possessed; (iii) whether the material is for the purpose of sale or further distribution; (iv) whether the offender will profit from the offence; (v) in the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised; (vi) the length of time for which the pornographic material was possessed: R v Jongsma at 400 [28]; R v Gent [2005] NSWCCA 370; 162 A Crim R 29 at 49 [99]; DPP (Cth) v D'Alessandro at 483-484 [21]; DPP (Cth) v Guest at [25]. (c) General deterrence is the primary sentencing consideration for offending involving child pornography: Assheton v R [2002] WASCA 209; 132 A Crim R 237 at 246-247 [35]-[36]; DPP (Cth) v D'Alessandro at 483-484 [21]; Edwards v The Queen [2013] VSCA 188 at [22]; DPP (Cth) v Guest at [25]; Heathcote (A Pseudonym) v R [2014] VSCA 37 at [40]; DPP (Cth) v Zarb [2014] VSCA 347 at [34]. (d) Less or limited weight is given to an offender's prior good character: R v Gent at 44 [65]; DPP (Cth) v D'Alessandro at 483-484 [21]; Mouscas v R [2008] NSWCCA 181 at [37]. (e) Offending involving child pornography occurs on an international level and is becoming increasingly prevalent with the advent of the Internet as a means of allowing people to access and obtain child pornography: R v Jones [1999] WASCA 24; 108 A Crim R 50 at 51 [2]; Assheton v R at 246-247 [35]-[36]. (f) Offending involving child pornography is difficult to detect given the anonymity provided by the Internet: Mouscas v R at [31]; R v Booth at [29]. (g) The possession of child pornography material creates a market for the continued corruption and exploitation of children: R v Coffey [2003] VSCA 155; 6 VR 543 at 552 [30]; R v Cook; Ex parte Director of Public Prosecutions (Cth) [2004] QCA 469 at [21]; R v Jongsma at 395 [14]; Heathcote (A Pseudonym) v R at [40]. (h) There is a paramount public interest objective in promoting the protection of children as the possession of child pornography is not a victimless crime - children are sexually abused in order to supply the market: R v Jones at 52 [9]; DPP (Cth) v D'Alessandro at 484 [23]. (i) The fact that an offender does not pay to access a child pornography website or was not involved in the distribution or sale of child pornography does not mitigate the offending: R v Coffey at 552 [30].
Justice Johnson also said at [70(h)] that an offender's subjective circumstances must not be allowed to overshadow the objective gravity of the crimes.
In Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243 RA Hulme J (with whom Macfarlan JA & Johnson J agreed) said: [94] Drawing primarily from the authorities to which I have referred, the following matters may be relevant to an assessment of the objective seriousness of offences involving the possession or dissemination/transmission of child pornography: 1. Whether actual children were used in the creation of the material. 2. The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed. 3. The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material. 4. The number of images or items of material - in a case of possession, the significance lying more in the number of different children depicted. 5. In a case of possession, the offender's purpose, whether for his/her own use or for sale or dissemination. In this regard, care is needed to avoid any infringement of the principle in The Queen v De Simoni (1981) 147 CLR 383. 6. In a case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted. 7. Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination/transmission. 8. The proximity of the offender's activities to those responsible for bringing the material into existence. 9. The degree of planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating or transmitting the material. 10. Whether the offender acted alone or in a collaborative network of like-minded persons. 11. Any risk of the material being seen or acquired by vulnerable persons, particularly children. 12. Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted. 13. Any other matter in s 21A(2) or (3) Crimes (Sentencing Procedure) Act (for State offences) or s 16A Crimes Act 1914 (for Commonwealth offences) bearing upon the objective seriousness of the offence.
In Porte Johnson J (with whom Leeming JA and Beech-Jones J agreed) set out at [152]-[153] a table of what might be regarded as comparative cases recently dealt with in this Court and in the Court of Appeal of Victoria. Those cases involved charges of possession (s 91H(2) Crimes Act), accessing and transmissions offences (s 474.19 Criminal Code) as well as the aggravated transmission offence (s 474.24A Criminal Code). Three of those cases (Mouscas v R [2008] NSWCCA 181, James v R [2009] NSWCCA 62 and Saddler v R [2009] NSWCCA 83) were applications by offenders to appeal against what were said to be manifestly excessive sentences. Five, including Porte and De Leeuw (the others were DPP (Cth) v Guest [2014] VSCA 29, R v Linardon [2014] NSWCCA 247 and R v Martin [2014] NSWCCA 283) were Crown appeals.
The table set out in Porte with the addition of the other cases mentioned is reproduced below: Charges Volume of Material and Classification Case Sentence Mouscas v R [2008] NSWCCA 181 Possess child pornography - s.91H(3) Crimes Act 1900 (NSW) (one count) 41,923 image files and 251 video files Imprisonment for two years and six months with a non-parole period of 18 months (offender's appeal dismissed) Use carriage service to access child pornography material - s.474.19(1)(a)(i) Criminal Code (Cth) (one count) Images at upper end of objective seriousness James v R [2009] NSWCCA 62 Possess child pornography - s.91H(3) (one count) Over 130,000 images on compact disks and hard drives, videos and movie files Imprisonment for 18 months with recognisance release order after 12 months Use carriage service to access child pornography material under s.474.19(1)(a)(i) (one count) Most images at upper end of seriousness (Offender's appeal dismissed) Saddler v R [2009] NSWCCA 83 Possess child pornography material - s.91H(3) (three counts) (other offences on a Form 1) Over 36,500 images Imprisonment for six years with non-parole period of four years and six months (Offender's appeal allowed - resentenced to total effective sentence of four years' imprisonment with a non-parole period of two years and nine months) Use carriage service to access - s.474.19(1)(a)(i) (one count) County Court - Community Corrections Order for three years and six months DPP (Cth) v Guest [2014] VSCA 29 Use carriage service to transmit - s.474.19 About 10,000 pictures, videos and text files, of which about 8,000 fell within Category 1 of the CETS scale On Crown appeal - sentences manifestly inadequate - resentenced to imprisonment for 18 months with recognisance release order after six months Possession of child pornography material - s.70 Crimes Act 1958 (Vic) Possession offence under s.91H(2) Possession charge related to 4,530 images and 40 videos and the access charge concerned 130 images and videos District Court - total effective sentence of imprisonment for three years and four months with a non-parole period of one year and 10 months R v Linardon [2014] NSWCCA 247 Transmission and accessing offences under s.474.19 Images and videos included material within the most serious category On appeal - Crown appeal allowed - total term of five years' imprisonment with a non-parole period of three years Aggravated transmission under s.474.24A Criminal Code (Cth) Possession - s.91H(2) (one count) R v Martin [2014] NSWCCA 283 Accessing - s.474.19, (two counts) Possession of about 13,000 images District Court - total effective sentence of three years' imprisonment with a non-parole period of 18 months Producing child abuse material - s.91H(2) (one count) Make material available count involved sharing over 47,000 prohibited files over six months On appeal - Crown appeal allowed - Offender resentenced to total effective sentence of five years and six months' imprisonment with an effective non-parole period of three years and six months Making available child pornography material - s.474.19 (one count) Possession - s.91H(2) (one count) Possession of 34,143 images including 2,260 videos R v Porte [2015] NSWCCA 174 Accessing carriage service - s.474.19 (one count) Accessing 17 images and 48 videos in all CETS categories Imprisonment for two years and nine months with a non-parole period of one year and six months Possess weapon without permit Possess child abuse material - s.91H(2) Crimes Act (one count) (two other possession matters on Form 1) Possession of 29,481 images, 1,039 videos and 2,128 documents depicting sexual activity between adults and children R v De Leeuw [2015] NSWCCA 183 Use carriage service to access child pornography - s.474.19 (three counts) Accessed 24,180 items including images, videos and documents Imprisonment for three years with a non-parole period of one year and nine months Items in all CETS categories. Offences of considerable objective gravity Use carriage service in an offensive manner - s 474.17 Criminal Code (three counts) Using carriage service to transmit child pornography - s.474.19 (one count) Total 2,300 images and 70 movies Minehan v R [2010] NSWCCA 140 Disseminating child pornography - s 91H(2) Crimes Act (two counts) Images in all CETS categories Imprisonment for five years and two months with a non-parole period of three years and three months Possess child pornography - s.91H(3) Crimes Act (two counts) Use carriage service to groom child - s 474.27 Criminal Code

What is apparent from those cases, from Porte itself, from the subsequent case of De Leeuw, and also from Minehan, is that most involved a considerably greater number of images than in the present case, that the periods over which they were accessed or transmitted were far longer, and that the images were at the upper end of objective seriousness. As to the last matter, most of those cases contained a considerable amount of material from categories 4 and 5 in the CETS classification.
Since objective seriousness is an assessment of where the case lies on the 'spectrum' that extends from the least serious instances of the offence to the worst category of offending (R v Kilic [2016] HCA 48; (2016) 91 ALJR 131 at [19]), it is necessary, particularly in cases involving these offences, to have regard to comparative cases. That need arises because, as Minehan and De Leeuw make clear, a number of the relevant considerations concern the numbers of images, the length of time material was possessed, accessed or transmitted, and the nature and content of the material ordinarily, but not exclusively, assessed on the CETS or Oliver scales. Other considerations identified in those cases are relevant also, but the matters mentioned will often be significant.
All child pornography material is abhorrent and most of it is likely to be confronting. I have viewed the samples of the material viewed by the Sentencing Judge at the request of the Crown. As disturbing as the images are, it is necessary to put aside as far as possible subjective feelings when coming to a view about where on the spectrum the offending lies.
In the present case, there is no suggestion that the material was possessed, made available or transmitted for profit. There is no suggestion that the applicant had any proximity to those who produced the material, and the transmission and making available of the material did not involve significant organisation.
In relation to sequence 1 being the State possession offence, there were 371 files and 19 video files. Whilst the majority of these were classified as CETS 1 the material included images and videos from categories 2, 3, 4 and 5. The applicant accessed this material 113 times in a 42 day period between 6 November 2015 and 17 December 2015.
In my opinion, the level of objective seriousness of this offence particularly having regard to the number of times it was accessed and the period of time in which that took place, is in the mid-range.
In respect of sequence 2 there were 98 image files and four videos. The image files were in categories 1 to 4 of CETS and the video files were in category 5. The material was transmitted in seven emails each with one recipient all occurring on the one day. It is accepted that there were duplicate images in the material the subject of this charge. In my opinion, the objective seriousness of this offence is in the low range.
In relation to sequence 9 there were 32 image files and no video files. Sixteen of the files were in category 1 with the remaining 16 being spread through categories 2 to 5. These were emailed on one day in one email to one recipient. In my opinion, this offence is in the low range.
In relation to sequence 13 there were 6 image files only all in category 1. They were transmitted by six emails each to one recipient between 26 October and 1 December 2015. In my opinion, this offence was towards the bottom of the range.
In relation to sequence 15 there were 37 image files of which 30 were in category 1, five in category 2 and two in category 3, and 103 video files mostly in categories 1 to 4 with two in category 5. This was made available by one email to two recipients sent on the one day. In my opinion, this offence was in the low range.
In relation to the aggravated charge of using a carriage service contrary to s 419.19 on three or more occasions involving two or more people, there were 145 image files and 70 video files. None was in category 5 but 60 of the video files were in category 4. Almost all of the image files were in category 1. The material was made available on four occasions between 26 October and 2 November 2015 to 161 recipients. In my opinion, particularly having regard to the number of recipients, this fell within the mid-range.
The applicant's subjective circumstances have been earlier discussed. The most significant matter from that material is that the applicant has a diagnosed sexual disorder involving an addiction to pornography for which he was obtaining treatment over a nine month period until he could no longer afford it. He thereafter remained abstinent from viewing any pornography for at least 18 months until he relapsed shortly before being arrested. Those matters reduce the significance of personal deterrence.
They do not, however, minimise the importance of general deterrence which, the authorities make clear, is a significant factor in these sorts of offences.
My assessment from the evidence of the applicant and the report of Dr O'Dea is that the applicant is remorseful for the offending. The decision of the applicant and his wife to sell their house to enable him to afford ongoing treatment and counselling attests to that. I regard his prospects of rehabilitation as moderate having regard to the success that was achieved during and after counselling with Dr O'Dea but bearing in mind the relapse which led to the present offending. The sale of the house for the purpose of meeting the costs of counselling, together with the support from his wife are also positive indications for his rehabilitation.
As far as totality is concerned three things should be noted. First, there needs to be accumulation between the possession offence and the carriage service offences. Neither comprehends the offending of the other. Secondly, the offending for the aggravated offence occurred during some of the same period as that of Sequence 13, and Sequence 13 covers the period of Sequence 2. Thirdly, for the carriage service offences, there is a continuum from 26 October to 9 December 2015 which has, somewhat arbitrarily, been divided up.
The applicant is entitled to a discount of 25% in respect of the possession offence. As to the Commonwealth offences, the pleas of guilty are to be taken into account as recognition of his willingness to facilitate the course of justice, and a similar discount will be applied.
Finally, whilst great care must be taken in the use that can be made of comparative cases, regard must be had to the sentences imposed or not interfered with in the eight cases to which I have referred. Those cases may well establish a range of sentences for the offences concerned and can be used as a yardstick against which to examine the proposed sentences: Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [41].

Conclusion

In my opinion, the applicant should be re-sentenced as follows: 1. For the offence of possess child abuse material (Sequence 1), a fixed term of 18 months commencing 19 December 2015 and expiring 18 June 2017; 2. For the offence of using a carriage service to transmit child pornography material (Sequence 2), imprisonment for 18 months commencing 19 December 2016 and expiring 18 June 2018; 3. For the offence of using a carriage service to transmit child pornography material (Sequence 9), imprisonment for 18 months commencing 19 March 2017 and expiring 18 September 2018; 4. For the offence of using a carriage service to make available child pornography material (Sequence 15), imprisonment for 18 months commencing 19 June 2017 and expiring 18 December 2018; 5. For the offence of using a carriage service to make available child pornography material (Sequence 13), imprisonment for 12 months commencing 19 September 2017 and expiring 18 September 2018; 6. For the aggravated transmission offence (Sequence 10), imprisonment for 4 years 6 months commencing 19 September 2017 and expiring 18 March 2022. 7. For the Commonwealth offences there should be a single non-parole period of 3 years 6 months commencing 19 December 2016 and expiring 18 June 2020.
The overall sentence is one of imprisonment for 6 years and 3 months with a non-parole period of 4 years and 6 months.
I propose the following orders: 1. Leave to appeal granted. 2. Appeal allowed. 3. Quash the sentences imposed in the District Court on 16 December 2016. 4. In lieu, sentence the appellant as follows: 1. For the offence of possess child abuse material (Sequence 1), a fixed term of 18 months commencing 19 December 2015 and expiring 18 June 2017; 2. For the offence of using a carriage service to transmit child pornography material (Sequence 2), imprisonment for 18 months commencing 19 December 2016 and expiring 18 June 2018; 3. For the offence of using a carriage service to transmit child pornography material (Sequence 9), imprisonment for 18 months commencing 19 March 2017 and expiring 18 September 2018; 4. For the offence of using a carriage service to make available child pornography material (Sequence 15), imprisonment for 18 months commencing 19 June 2017 and expiring 18 December 2018; 5. For the offence of using a carriage service to make available child pornography material (Sequence 13), imprisonment for 12 months commencing 19 September 2017 and expiring 18 September 2018; 6. For the aggravated transmission offence (Sequence 10), imprisonment for 4 years 6 months commencing 19 September 2017 and expiring 18 March 2022. 7. For the Commonwealth offences there should be a single non-parole period of 3 years 6 months commencing 19 December 2016 and expiring 18 June 2020.

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: 28 August 2017

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (22 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (41)

Cited By (13)