McNiece v The Queen [2018] VSCA 186

• the early plea of guilty and the stage at which it was entered,
• the applicant's lack of prior convictions,
• his personal circumstances of the applicant,
• his extra-curial punishment,
• the weight given by the sentencing judge to the Court of Appeal's judgment in DPP v DPP (Cth) v Meharry [2017] VSCA 387, and
• the objective seriousness of the offending

the individual terms of imprisonment imposed, the orders for cumulation and the non-parole period fixed are manifestly excessive.

4 In substance, the charges involving use of the internet (charges 1-8) all concerned communications by the applicant with boys under the age of 16, or, in one case, a person the applicant believed to be a boy under the age of 16 who was in fact an undercover police officer (charges 7 and 8). The communications were graphic and explicit. It is unnecessary for me to set them out. On one occasion (charge 2) the indecent communications he transmitted to the boy included images of an erect penis and spermatozoa.

5 In the course of the communications with the undercover police officer the applicant attempted to arrange a meeting for the purpose of sexual activity involving penetration (charge 7).

6 The charge of procuring a child to engage in sexual activity outside Australia (charge 3) occurred in somewhat unusual circumstances. The relevant sexual activity did not involve the applicant. Rather, the applicant encouraged a boy aged 15 in the United Kingdom to engage in sexual activity with his girlfriend.

7 After the applicant was identified in relation to his internet activities, police attended his premises where a considerable quantity of child exploitation material, including images and videos of penetrative sexual activity between males aged between 8 and 16 and adults, was discovered on the applicant's computer (charge 9).

8 The sentencing judge heard a plea on 13 November 2017 and sentenced the applicant on 22 December 2017.[1]

9 The sentencing judge, before summarising the circumstances of each offence, gave an overview of the internet offending in the following terms:

In brief terms, in two short timeframes at the end of 2015 and in mid-2016, you apparently trawled the internet to find teenage boys to whom you could talk in explicit sexual terms and request them to send you images of themselves, to whom you sent pornographic images in one instance, and two of whom you procured to engage in sexual activity.[2]

10 In relation to the charge of possessing pornographic material, the sentencing judge summarised the position as follows:

Analysis of the electronic devices also revealed that you were in possession of 283 child pornography image files and three child pornography video files. The majority of the files were in categories 2-5 and depicted children aged between 8 and 16 years of age engaged in sexual activity.[3]

11 The judge observed that the offences were 'all very serious examples of very serious offending'.[4]

12 The sentencing judge took into account a number of factors in the applicant's favour. She described those factors as follows:

The first of these factors is your plea of guilty at an early opportunity. This shows that you now accept responsibility for all your offending, and also demonstrates remorse. Because of your plea, you have saved the community the time and cost of a trial, and demonstrated your willingness to facilitate the course of justice, even though the case against you is strong. As a result of the effect of your plea of guilty, the sentence I will impose is less than would otherwise have been the case.

Next, I take into account that you have no criminal record and so will be sentenced as a person who had not committed any crimes before December 2015. Also, you have not committed any crimes since. I note that you did not have a computer until 2014, and have not owned a computer since August 2016.

Next, I take into account your personal history and circumstances. You turned 45 yesterday. You have a brother and a sister, and your mother is still alive, but you have no contact with any of them. Your parents separated when you were aged 12 months and you met up with your father again when you were 30. Both of your parents were problem drinkers of alcohol, as are you.[5]

13 The sentencing judge went on to describe in more detail the applicant's personal circumstances.[6] The description given is of a lonely and isolated person without close friends or family support who has never had a long term adult intimate relationship.

14 The judge referred to the fact that in May 2017 the applicant began seeking treatment from a psychologist. A report had been provided to the Court from that psychologist. The sentencing judge referred to the fact that initially the applicant had had a poor understanding of his offending but with treatment had come to understand that his victims were highly vulnerable and that he had been predatory.[7] The sentencing judge also referred to treatment the applicant had sought for alcohol abuse but observed that there was no material before her indicating how the applicant had responded or what further treatment was required.[8]

15 The sentencing judge referred to a report by a clinical psychologist, Carla Lechner. In that regard the sentencing judge said:

Based on the information you gave her, Ms Lechner concluded that your offending occurred in the context of depression to the point of being suicidal, heavy drinking, loneliness and some deviant interests. Your counsel submitted on your behalf that this brought into play the principles of a case called Verdins and that the need for my sentence to deter others should be moderated to some extent. He also submitted that the opinion of Ms Lechner that you are likely to struggle in prison in light of your social, cognitive and emotional immaturity should be taken into account as making prison harder for you than for someone without your issues.[9]

16 The sentencing judge said that she considered that the applicant's prospects for rehabilitation were 'guarded'.[10]

17 The sentencing judge had the applicant assessed for a Community Correction Order but when the matter returned she concluded that there was no alternative to imprisonment.[11] In that context she quoted a passage from the judgment of Maxwell P and Kyrou JA in DPP v Meharry[12] to the effect that the ease with which sexual offences using the internet can be committed makes it imperative that those inclined to do so should be aware that, if detected, they face very lengthy terms of imprisonment.[13]

18 The sentencing judge initially imposed sentences with different commencement dates to those set out in the earlier table. She later corrected the commencement dates she had initially ordered so as to give effect to what had been her express intention of producing a total effective sentence of 4 years 10 months' imprisonment with a non-parole period of 2 years and 2 months.

19 The applicant submits that the observation made by the sentencing judge immediately after her reference to the applicant's lack of prior convictions concerning the applicant's ownership of a computer had 'diluted the weight and value' of the applicant's absence of other offending. It is submitted that the 'irresistible inference' is that her Honour considered that but for the lack of access to a computer it is likely that he would have, or might have, re-offended.

20 On behalf of the respondent it is submitted that this contention is untenable. No such inference can be drawn. It is clear that the sentencing judge had taken the applicant's prior good character into account and that there is no warrant for inferring that the sentencing judge had concluded that but for the absence of a computer he would or might have re-offended.

21 In my view this proposed ground is not arguable. The inference contended for should not be drawn for the reasons advanced by the respondent. I do not consider it is arguable that the sentencing judge 'diluted' the mitigating effect of the applicant's prior good character in the observation she made about his ownership of a computer.

22 In his written case the applicant submitted that when regard is had to a number of specified circumstances the sentence imposed by the sentencing judge falls outside the range available to her in the proper exercise of her discretion. The first matter relied upon was the guilty plea and lack of prior convictions. The second matter relied upon was the applicant's personal circumstances. In that context particular reliance was placed upon Ms Lechner's report. It was submitted on the basis of that report that the sentencing judge was bound to have applied at least the fifth limb of Verdins. The next matter relied upon was the fact that as a result of the offending the applicant had lost the ability to umpire football which had been his only social contact. Finally, reliance was placed upon the judge's conclusion that, having had the applicant assessed for a Community Correction Order, there was no alternative to imprisonment. In that context reference was made to the sentencing judge's reliance on the passage from Meharry, and it was submitted that the offending in Meharry was significantly more serious than that in the applicant's case. It was further submitted that the seriousness of the applicant's offending had been overrated by the sentencing judge. Reference was made to the fact that there had been no monetary inducement, that the victims were not 'significantly' under 16 years of age, and that the applicant had made no attempt to conceal his identity. It was submitted that the absence of such features was in contrast to cases such as Tector v The Queen.[14]

23 In oral submissions counsel for the applicant concentrated on the sentence on count 3 (procuring a child to engage in sexual activity outside Australia). Counsel emphasised the unusual circumstances of this offence in that there had been no suggestion that he would participate in the sexual activity, or that any other adult would participate in any way. A contrast was drawn with the offending in Rivo v The Queen.[15]

24 The sentence imposed on charge 3 was 2 years 6 months' imprisonment and the start dates ordered effectively made this sentence the base sentence on the Commonwealth offences.

25 Counsel for the applicant conceded that all the other sentences were within the range open to the sentencing judge save for the sentence on count 7 (a charge of using a carriage service to procure a child for sexual activity). This charge concerned the communications with the undercover police officer. A sentence of 2 years' imprisonment was imposed with a start date effectively accumulating 3 months. Reference was made to the absence of monetary inducement, the absence of deception or attempts to conceal identity, and the fact the applicant believed the victim not to be substantially below 16.

26 The respondent submitted that there were very few comparative cases on the offence of procuring a child to engage in sexual activity outside Australia, but that the sentence on charge 3 was not outside the range given the 15 year maximum penalty.

27 The respondent submitted that charge 7 was particularly serious as the applicant had sought to arrange a meeting with a boy he believed to be 14 years of age for the purpose of penetrative sexual activity. In that context it was submitted that a sentence of 2 years' imprisonment could not be seen as excessive.

28 Finally, counsel for the respondent submitted that leave should be refused under s 280(1) of the Criminal Procedure Act 2009 as there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence even if there were an error in relation to the sentences on charges 3 or 7.

29 I do not consider that it is arguable that the sentence imposed on charge 7 is manifestly excessive. The offence has a 15 year maximum. The submission made by the respondent is well-founded, in my view.

30 As to the sentence on charge 3, I am persuaded that it is arguable that that sentence is manifestly excessive for the reasons advanced by counsel for the applicant.

31 I do not consider that the total effective sentence or the non-parole period are arguably manifestly excessive. The offending occurred over two separate time periods. The communications were graphic and explicit. The applicant attempted to arrange a meeting with a person he believed to be 14 for the purposes of penetrative sexual activity. The child pornography found in his possession included material of a very serious nature. In my view, the total effective sentence and the non-parole period imposed are modest, taking into account all of the mitigating factors to which the judge referred and upon which she relied, given the seriousness of the offending.

32 The applicant pointed out that the offending in Meharry was far more serious than the offending here. That is true. But the President and Kyrou JA made observations in that case as to the importance of general deterrence in relation to this kind of offending in the course of their reasons (with which Priest JA substantially agreed) both in the context of that specific case[16] and more generally.[17] The observations made are applicable here, in my opinion.

33 Given these matters, in my view there is no reasonable prospect that this Court would reduce the total effective sentence even if an error in relation to the sentence on charge 3 were established, and leave to appeal will accordingly be refused pursuant to s 280(1)(b) of the Criminal Procedure Act.

[1] [2017] VCC 2043 ('Reasons').

[5] Ibid [22]-[24] (citations omitted).

[9] Ibid [33] (citations omitted) citing R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

[12] [2017] VSCA 387 ('Meharry').

[13] Reasons [43] quoting Meharry [2017] VSCA 387 [5].

[14] [2008] NSWCCA 151; (2008) 186 A Crim R 133.

[15] [2012] VSCA 117.

[16] Meharry [2017] VSCA 387 [5] - quoted by the sentencing judge: Reasons [43].

[17] Meharry [2017] VSCA 387 [166].