Ground 3: Sentencing Judge failed to have regard to the totality of the criminality of the applicant
33It is convenient to deal with this ground first. The applicant's submissions in respect of this ground were as follows:
"The structure of the judge's sentence for all the offences of the applicant is difficult to understand it is submitted. For the offence of contacting [the former inmate] (which was part and parcel of the produce and disseminate child abuse charges) contrary to the Child Protection (Offenders Prohibition Orders) Act 2004 the Judge imposed a nine (9) month sentence commencing from 24th January 2013, the date the applicant went into custody. For the two offences of possess child abuse material the judge imposed a three (3) year sentence. The judge did not specify if those sentences were to be served concurrently but they must have been made partly cumulative with the possession of child abuse charges as he commenced the sentence date from 24th July 2013 for the possession charges. The judge then imposed sentences ranging from nine (9) months to one year for the produce and disseminate charges indicating an aggregate sentence of six (6) years imprisonment. The judge did not indicate in his reasons on sentence how he structured those sentences whether cumulative or concurrent with each other or for other offences but merely said 'The total effective sentence is one of six and half years with a non-parole period of two years', which was obviously inaccurate."
34The complaint made in the last sentence of this submission has already been addressed at [30 ] above. Otherwise in part, this submission reveals a failure to appreciate that his Honour in fact imposed an aggregate sentence in respect of all of the offences under s 91H(2). Thus the submission repeatedly refers to his Honour having "imposed" particular sentences for the offences under s 91H(2) when, as I have already noted, s 53A(2)(b) of the Sentencing Act only required his Honour to indicate the sentences that would have been imposed for each offence had sentences been imposed. In particular, that requirement did not require his Honour to specify start and end dates for each such sentence (R v Nykolyn [2012] NSWCCA 219 at [60] per R.A. Hulme J ("Nykolyn")).
35Nevertheless, to the extent the applicant complains about the manner of the application of the totality principle, he is on surer ground. In Nykolyn at [58], R.A. Hulme J discussed the significance of the requirement in s 53A(2)(b) that the sentencing judgement record the sentences that would have been imposed for each of the individual offences had an aggregate sentence not been imposed. His Honour stated:
"The importance of proper compliance with the requirement to indicate the separate sentences that would have been imposed arises for at least four reasons. First, it assists a sentencing judge in application of the totality principle, an important factor in the assessment of the aggregate sentence to be imposed. Secondly, it exposes for appellate review how it is that the aggregate sentence was arrived at: see R v Brown at [17] per Grove AJ. Thirdly, it allows victims of crime and the public at large to understand the level of seriousness with which a court has regarded an individual offence. Fourthly, it assists this Court to assess an appropriate new aggregate sentence if one or some of the underlying convictions are quashed on appeal." (emphasis added)
36In R v Grover; Grover v R [2013] NSWCCA 149 at [60] to [66], Hoeben CJ at CL upheld a ground of appeal that contended that the sentencing judge had erred in their approach to considerations of accumulation and concurrency when imposing an aggregate sentence. Similarly, in R v Brown [2012] NSWCCA 199 ("Brown") at [35] Grove AJ observed:
"Of course, in the exercise of power to impose an aggregate sentence, accumulation would in a sense be notional but an examination of the potentials for accumulation can cast light upon whether the aggregate sentence represents a sound exercise of sentencing discretion."
37This passage from Brown reflects the reality that in some, perhaps many, cases the removal of the requirement that the sentencing judge specify the beginning and end dates for each indicative or notional sentence may make it more difficult for an offender to demonstrate that there was some error in the manner in which principles relevant to concurrency and accumulation of sentences were applied. It is unnecessary to consider that further because in this case his Honour addressed those principles and their application in the following passage in the sentencing judgment:
"The contravene child protection prohibition order offence is itself a serious example of its type. It calls for a separate and discrete punishment. The three categories of offences also call for some measure of separate and discrete punishment. The produce child abuse material and disseminate child abuse material contain many common elements. The offender is not to be punished twice for those common elements, see Pearce (1998) 194 CLR 610 at [49]. But while many of the elements of the offences overlap, the offences were not identical. Some measure of independent discrete punishment is required for the dissemination offences: see Fulop v R [2009] VCSA 296.
I must consider the questions of accumulation and concurrence. As far as this child abuse material is concerned, the elements of each offence can be comprehended one by the other. Those matters should be made completely concurrent. The same principles which were set out by the Court of Criminal Appeal in Cahyadi v R [2007] NSWCCA 1 mean that the produce child abuse material and the disseminate child abuse material should be dealt with within each group, concurrently, but, there must be a measure of accumulation as far as the three groups of offences and the s166 matter are concerned. This is [in] order to take account of the total criminality involved in the offences before me." (emphasis in italics added)
38The reference to the "three categories of offences" in the opening part of this extract appears to be to the three species of offences under s 91H(2), i.e. the two offences involving possession of child abuse material, the eleven offences involving production of child abuse material, and the eleven offences involving disseminate child abuse material. Although it is unclear, it seems likely that the reference to "this child abuse material" in this extract is a transcription error and should be a reference to "the possess child abuse material", i.e. the two possession offences. Thus, his Honour intended the notional sentences for the possession charges should be "completely concurrent". This means that the overall contribution of the those two offences to the total aggregate sentence of six years was three years. (If it is not a typographical error, then the passage makes no sense as all 24 charges concerned "child abuse material".)
39His Honour then referred to the "produce child abuse material and the disseminate child abuse material [being] ... dealt with within each group concurrently", but allowing for a measure of accumulation as far as the "three groups of offences ... are concerned". The reference to "group" in this part of the sentencing judgment appears to be a reference to a grouping of the produce child abuse offences together and the disseminate child abuse material offences together. This corresponds with the "three categories of offences" referred to in the opening part of the above extract. If the indicative sentences for the produce child abuse offences were all treated as concurrent as this passage suggests, then collectively they lead to a period in custody of one year. The same applies if the disseminate child abuse offences are grouped together.
40If this construction of the sentencing judgment is correct, then an accumulation of the indicative or notional sentences for each "group" of offences totals only five years. Yet the overall sentence imposed was one of six years. The only possible means by which an aggregate sentence of six years for the 24 charges could be achieved in a manner which is arguably consistent with the above extract is if his Honour meant to group each individual offence of produce child abuse material with an offence of disseminate child abuse material that relates to the same instalment of the stories noted in [16] to [17] above, with the notional sentence for that pair of offences to run concurrently and then each such "group" accumulated. However, the difficulty with such a reading of the above extract is that it involves treating the words "group" and "categories" of offences in the extract at [37] as conveying different meanings.
41In my view the length of the aggregate sentence is not capable of being supported by any reasonable construction of that part of the sentencing judgement which deals with accumulation and concurrency. This is sufficient to uphold this ground of appeal so far as it concerns the aggregate sentence.
42Finally, I note that the applicant's submission extracted above at [33] appears to complain about so much of the sentence for the offence under s 13(1) of the Child Protection Orders Act that was not made concurrent with the sentence for the offences under s 91H(2). The substance of the complaint appears to be that substantial concurrency was warranted because the conduct the subject of the dissemination charges appears to be the bulk of the conduct said to contravene the Child Protection Orders Act.
43For the reasons noted above (at [18]), this complaint has substance. There was some further element of double punishment in that the fact that the relevant recipient of the disseminated material was a paedophile whom the applicant was banned from contacting was considered to be an aggravating feature of the dissemination. A strict approach of the passage in Pearce v R [1998] HCA 57; 194 CLR 610 ("Pearce") at [49] might warrant a reduction in the sentence for this offence on this account. However this was not argued and it would be futile as the sentence has now expired. The better course is to backdate the sentence for the offences under s 91H(2) for a further period of three months to achieve greater concurrency with the s 13(1) offence. The three months imprisonment that is not concurrent will reflect the fact that there was some contact between the applicant and the former inmate during the period of the offence under s 13(1) of the Child Protection Orders Act that was not also the subject of the dissemination charges under s 91H(2).
44Before considering the appropriate sentence to impose for the 24 offences under s 91H(2), however, it is first necessary to consider the challenge to the individual indicative or notional sentences.