[2011] VSCA 372
Cahyadi v R (2007) 168 A Crim R 41
[2007] NSWCCA 1
Conte v R (2018) 86 MVR 239
[2018] NSWCCA 209
Davidson v R (2022) 300 A Crim R 214
[2022] NSWCCA 153
Dennis v The Queen [2017] VSCA 251
He v Sun (2021) 104 NSWLR 518
Source
Original judgment source is linked above.
Catchwords
[2011] VSCA 372
Cahyadi v R (2007) 168 A Crim R 41[2007] NSWCCA 1
Conte v R (2018) 86 MVR 239[2018] NSWCCA 209
Davidson v R (2022) 300 A Crim R 214[2022] NSWCCA 153
Dennis v The Queen [2017] VSCA 251
He v Sun (2021) 104 NSWLR 518[2021] NSWCA 95
Hili v The QueenJones v The Queen (2010) 242 CLR 520[2010] HCA 45
Hutchison v R [2022] VSCA 217
JM v R (2014) 246 A Crim R 528[2014] NSWCCA 297
Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25
Minehan v R (2010) 201 A Crim R 243[2010] NSWCCA 140
Moodie v R (2020) 284 A Crim R[2020] NSWCCA 160
Obeid v R (2017) 96 NSWLR 155[2017] NSWCCA 221
Pearce v The Queen (1998) 194 CLR 610[1998] HCA 57
R v Appleby [2021] ACTSC 55
R v De Leeuw [2015] NSWCCA 183
R v Holder (1983) 3 NSWLR 245(1983) 13 A Crim R 375
R v Martin (2014) 246 A Crim R 477[2014] NSWCCA 283
R v Porte (2015) 252 A Crim R 277[2015] NSWCCA 174
Totaan v R (2022) 108 NSWLR 17
[2022] NSWCCA 75
Wong v The Queen (2001) 207 CLR 584
Judgment (9 paragraphs)
[1]
The applicant's subjective case
The applicant was 42 years old at the time of sentencing. He was aged between 35 and 41 years old in the period of his offending. He had been with his partner for 15 years and married for 11 of those. Prior to his incarceration he was living with his wife and daughter on the Central Coast. His daughter has a chromosomal abnormality which has led to significant intellectual and physical disabilities and a complex medical history.
The applicant was working as the Director of a sheds and home franchise. At the time of his arrest, the applicant was not seeing any mental health professionals and was not engaged in psychological therapy.
The applicant's parents separated when he was a young child. He has not maintained a close relationship with either of them as an adult. The applicant reported to Dr Ellis that most of his family members were taking antidepressants. He assumed that his father, who died in 2019, suffered from depression. His stepsister committed suicide at the age of 32. He also reported to Mr Knight a maternal family history of depression.
The applicant reported an escalation in his alcohol use in the four to five years prior to his arrest. He also reported experiencing alcohol withdrawal in the past, although was unsure if this was related to symptoms of gastro-oesophageal reflux. Dr Ellis opined that the applicant's long-term use of alcohol was consistent with a substance use disorder which is currently in remission in a controlled environment.
The applicant relied upon his expressions of remorse to Dr Ellis, Mr Knight, his wife and his father-in-law. In addition, the applicant gave evidence in the sentence hearing during which he read out a letter of apology that he had prepared. The applicant emphasised his sense of shame, guilt and disgust for his actions. He acknowledged that his behaviour was unacceptable and acknowledged the impact of his offending on the victims.
The sentencing judge noted that at certain points, while the applicant was reading his letter of apology, he was in tears. His Honour concluded that the applicant was genuine in his expressions of remorse which were consistent with the opinions of the trained health professionals and the character referees.
The applicant has no criminal history. The sentencing judge extended to him a degree of leniency, noting that the seriousness of an offence will often outweigh personal circumstances even in the case of a first offender. The sentencing judge also accepted that the applicant was of prior good character although gave that factor limited weight.
[2]
Psychosexual history and diagnosis
The applicant reported to Mr Knight that he had been sexually abused between the ages of seven and nine by an adult man who was a family friend. He described the nature of that abuse, telling Mr Knight that he has experienced intrusive thoughts related to the abuse and that he actively avoided thinking about it. He also reported the abuse to Dr Ellis although said that he was unsure how the abuse has impacted upon him.
The applicant began looking at adult pornography on the internet at the age of 20. He first noticed his interest in child exploitation material when he was 30 years old. His interest in this material gradually increased to a point where it became his "preferred source of sexually explicit material". However, the applicant reported to Mr Knight that he did not have a "primary interest" in child exploitation material. He estimated that he preferred child exploitation material 20% of the time, preferring adult pornography 80% of the time. He denied any interest in a sexual relationship with a child.
[Redacted].
[Redacted].
The applicant reported viewing pornography daily when he discovered the "Telegram" application. The application accessed links to underage pornography sites.
Dr Ellis opined that the applicant's history of sexual fantasy, difficult to control urges and behaviours consistent with attraction to underage females in states of nudity, was consistent with a diagnosis of a paraphilic disorder with features of paedophilia and voyeurism. Mr Knight was of the view that the applicant "suffers from paedophilic disorder, non-exclusive type, attracted to females and voyeuristic disorder".
Dr Ellis also opined that the applicant's adverse sexual experiences in his childhood may have formed "a template for the development of this pattern of sexual arousal".
The sentencing judge summarised the evidence of Dr Ellis in respect of the nexus between the applicant's paraphilic disorder and offending in the following way:
"[102] Dr Ellis opined that at the time of the offending, the offender's heavy alcohol use, his wish to fulfil his fantasies relating to his experiences as a teenager and inability to discuss this with his partner contributed to his mental state at the time of the subject offending. He also opined that the stress attributed to coping with the illnesses suffered by his daughter could have contributed to his state of mind at the time of the offending.
[103] Dr Ellis opined that the offending was consistent with paraphilic arousal to themes of voyeurism and paedophilia, attracted to females. He opined that the substance use and stress may have prompted his use of [paraphilic] arousal as a more prominent coping mechanism to deal with the distressing mental states he was experiencing at the time. However, Dr Ellis opined that the offender's state of mind was not likely at the point where he would have been deprived of the knowledge of the illegality of his actions, or the ability to control his actions."
[3]
"Comparative" cases at first instance
The Crown, in the sentence proceedings, relied upon a "Schedule of Commonwealth Comparative Cases", which was attached to the written submissions. The table contained four cases which can be summarised briefly as follows.
In Hutchison v R [2022] VSCA 217, the applicant appealed against the sentence imposed upon him in relation to three federal offences. Counts 1 and 2 were offences of using a carriage service to access child pornography and child abuse material, contrary to s 474.19(1) and s 474.22(1) of the Criminal Code respectively (s 474.19(1) was repealed on 20 September 2019), each carrying a maximum penalty of 15 years' imprisonment. Count 3 was an offence of possessing child abuse material obtained or accessed using a carriage service, contrary to s 474.22A(1) of the Criminal Code, which carries a maximum penalty of 15 years' imprisonment. Upon the execution of a search warrant, police uncovered several devices containing a total of 317,003 files which contained child abuse material.
The applicant in that case was 52 years old with no criminal history. There was evidence that he had been sexually assaulted as a child. He was married and had steady employment prior to his incarceration. One of his daughters had behavioural issues stemming from a mild intellectual disability, anxiety and autism. He was sentenced to a total term of 5 years' imprisonment with a non-parole period of 3 years. The appeal asserting that the sentence was manifestly excessive was dismissed.
In R v Martin (2014) 246 A Crim R 477; [2014] NSWCCA 283 ("Martin"), the Crown appealed, asserting that the sentence was manifestly inadequate. The respondent in that case was sentenced for five offences. Counts 1 and 4 were offences of possessing and producing child abuse material, contrary to s 91H(2) of the Crimes Act, which carries a maximum penalty of 10 years' imprisonment. Counts 2 and 3 were offences of using a carriage service to access child pornography, contrary to s 474.19(1)(a)(i) of the Criminal Code (now repealed). Count 2 attracted a maximum penalty of 10 years' imprisonment and count 3 attracted a maximum penalty of 15 years' imprisonment, due to an amendment to the legislation that increased the maximum penalty between the relevant offending. Count 5 was an offence of making available child pornography material using a carriage service, contrary to s 474.19(1)(a)(iii) of the Criminal Code (now repealed), which carried a maximum penalty of 15 years' imprisonment.
[4]
Ground of Appeal: The total effective sentence is manifestly excessive
[5]
Applicant's submissions
The essence of the applicant's argument is that by wholly accumulating the sentence for the federal offences on the non-parole period for the state offences, the total effective sentence is manifestly excessive.
The applicant did not contend that the sentencing judge failed to have regard to a relevant sentencing principle, nor that his Honour misapplied relevant principle. There is no patent error relied upon.
The applicant did not submit that the aggregate sentences are themselves manifestly excessive. Nor did the applicant submit that the indicative sentences are infected by error. Instead, the applicant submitted that while the individual indicative sentences may not themselves be described as "manifestly excessive" or fall outside the wide sentencing discretion available to the sentencing judge, the total accumulation of the sentence for the federal offences on the non-parole period for the state offences has resulted in a total effective sentence that is manifestly excessive.
In support of that contention, the applicant relied on a number of factors. Firstly, by way of example, the applicant pointed to the starting point for the indicative sentences for sequences 1 (over 7 years' imprisonment) and 13 (4 years and 6 months' imprisonment) and argued that the objective seriousness of those offences was not sufficiently high to warrant such a starting point having regard to the mitigating factors.
Secondly, the applicant submitted that manifest excess is demonstrated by the ratio between the total effective head sentence (9 years and 10 months) and the effective non-parole period (6 years and 11 months), namely 70.3%, in circumstances where the non-parole period for the aggregate state sentence and the non-parole period for the aggregate Commonwealth sentence comprise 55.5% of the respective head sentences.
Thirdly, although the applicant did not contend that the sentencing judge misapplied the principle of totality, the applicant submitted that the total accumulation of the Commonwealth sentence on the non-parole period for the state sentence, resulted in a manifestly excessive total effective sentence. The corollary to that argument is that there should have been a measure of partial concurrency having regard to several common features.
The applicant did not rely upon comparative or comparable cases, submitting that it is difficult to draw meaningful comparisons between cases involving offences of this nature due to the wide scope for variation and the particular complexity involved in sentencing for federal and state offences at the one-time.
[6]
Crown submissions
The Crown pointed out that the applicant does not rely on "specific error" or contend that the sentencing judge erred in his application of the principle of totality. In respect of the complaint that the indicative sentences for each of the individual counts are "stern" (in particular the indicative sentences for sequences 1 and 13), the Crown submitted that while indicative sentences may be a guide as to whether error is established in relation to an aggregate sentence, the fact that the indicative sentences are "stern" or "excessive" does not necessarily mean that the aggregate sentence is excessive.
The Crown submitted that the sentencing judge's careful analysis of the objective seriousness of the offending the subject of sequences 1 and 13 reflects his Honour's view that the offences were most serious and warranted substantial punishment.
The Crown submitted that the Court ought to reject the applicant's contention that there should have been a measure of concurrency between the state and federal sentences. The criminality of the federal offences is said to be very different to the criminality involved in the state offences. Although the entirety of the offending involved child abuse material, the sentence for the state offences could not comprehend the criminality of the federal offences (and vice versa), nor are the state and federal offences part of a single episode of criminality with common factors.
In respect of the ratio between the total effective head sentence and the total effective non-parole period (70.3%), the Crown submitted that error is not demonstrated and that this Court may conclude that the effective parole period of 2 years and 11 months provides the applicant with ample opportunity to rehabilitate and reintegrate into the community.
[7]
Consideration
The applicant contended that while there is no patent error, the sentencing judge's discretion miscarried nonetheless and the sentence is "unreasonable" or "plainly unjust": Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25].
The principles applicable to a complaint that a sentence is manifestly excessive were summarised by R A Hulme JA (Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 ("Obeid") at [443] as follows:
"When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].
• Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.
• Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.
• It is not to the point that this Court might have exercised the sentencing discretion differently.
• There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.
• It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
The principles expressed in Obeid were cited with approval by Bell CJ (Stern JA and Button J agreeing) in Astill v R [2024] NSWCCA 118 at [77]. At [78], the Chief Justice also cited with approval the further guidance provided by R A Hulme J in JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297 at [39]-[40]:
• "A principal focus in a challenge alleging manifest excess in an aggregate sentence is on the totality of the criminality involved: Vaughan v R [2020] NSWCCA 3 at [91]; R v Brown [2012] NSWCCA 199 at [37]; R v Rae [2013] NSWCCA 9 at [42]-[46], [62], [69].
• Indicative sentences, while not amenable to individual appeal, may nonetheless be a guide to whether error is established in relation to the aggregate sentence.
• Even if the indicative sentences are assessed as being excessive, that does not necessarily mean that the aggregate sentence is excessive: PD v R [2012] NSWCCA 242 at [44], [82]; BJS v R [2013] NSWCCA 123; (2013) 231 A Crim R 537 at [252]-[254]."
[8]
Re-sentencing
It follows that I am of the view that the appeal should be upheld, and the applicant resentenced. In resentencing the applicant, I adopt the sentencing judge's findings with respect to the objective seriousness of the offences and the applicant's subjective case. I also respectfully agree with his Honour's conclusions as to the weight to be afforded the various purposes of sentencing. Having already set out the relevant evidence and findings, I do not intend to reproduce that material here.
I would not vary the indicative sentences nor interfere with each of the aggregate sentences. In resentencing the applicant, I have had regard to the contents of his affidavit dated 4 February 2025 and that of Natasha Konic dated 4 February 2025 which were both read on the usual basis.
In answering the question of when a sentence is proportionate to, or a just and appropriate measure of, the offender's overall criminality, I have found the observations of Redlich JA in Azzopardi v The Queen (2011) 219 A Crim R 369; [2011] VSCA 372 to be of particular assistance. His Honour observed the following at [58]:
"Callaway JA said in R v. Aleksov, that just like in the case of manifest excess, whether the total effective sentence offends the principle of totality is often a matter of impression. The factors which combine to inform the instinctive synthesis are those which also determine whether an individual sentence is manifestly excessive, namely the objective gravity of the offence, current sentencing practice, the maximum sentence, matters in mitigation and matters personal to the offender. Hence it is often said that the question of whether a sentence is manifestly excessive does not admit of much elaboration. While those factors enable the identification of a relevant range of sentences available for that offence, more subtle considerations are at work in determining the aggregate sentence which sufficiently reflects the offender's total criminality. Whatever comfort a sentencing judge may derive from the fact that an intermediate appellate court can as a 'matter of impression' identify when a sentence infringes the principle of totality, the content of the principle remains unstated. Some further explication must be undertaken in order to expose the characteristics of a sentence that will satisfy the principle and so resolve the present issue." (Footnotes omitted).
[9]
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: 07 March 2025
Solicitors:
Conditsis Lawyers (Applicant)
Director of Public Prosecutions (Cth) (Respondent)
File Number(s): 2022/00075666
Publication restriction: Pursuant to s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the names or any matters which might tend to identify the victims or any children involved is prohibited.
Decision under appeal Court or tribunal: District Court of New South Wales
Jurisdiction: Criminal
Citation: [2023] NSWDC 148
Date of Decision: 10 May 2023
Before: Abadee DCJ
File Number(s): 2022/00075666
HEADNOTE
[This headnote is not to be read as part of the judgment]
Mr Benjamin Meers (the applicant) sought leave to appeal against the sentence imposed on him by Abadee DCJ on 10 May 2023 in the District Court of New South Wales.
The applicant was sentenced following pleas of guilty to five federal offences and four state offences. The federal offences related to the possession of child abuse material and use of a carriage service for child abuse material, and the state offences related to the production of child abuse material.
For the state offences, the sentencing judge imposed an aggregate sentence of 6 years' imprisonment, commencing on 16 March 2022 and expiring on 15 March 2028, with a non-parole period of 3 years and 4 months, expiring on 15 July 2025. For the federal offences, his Honour imposed an aggregate sentence of 6 years and 6 months' imprisonment, commencing on 16 July 2025 and expiring on 15 January 2032, with a non-parole period of 3 years and 7 months, expiring on 15 February 2029.
The sentencing judge wholly accumulated the sentence for the federal offences on the non-parole period for the state offences. The total effective sentence was imprisonment for 9 years and 10 months with a minimum non-parole period of 6 years and 11 months.
The applicant relied on one ground of appeal, namely:
1. The sentence imposed is manifestly excessive.
The Court held per Yehia J (Bell CJ and Stern JA agreeing), granting leave to appeal against the sentence, upholding the appeal and resentencing the applicant:
1. It was appropriate for the sentencing judge to impose two separate aggregate sentences and although each aggregate sentence may be described as "stern", neither is manifestly excessive: per Yehia J at [116] (Bell CJ at [1] and Stern JA at [2] agreeing).
2. While the applicant did not contend that the sentencing judge erred in the application of the totality principle, underpinning the sole ground of appeal was a complaint that the sentencing judge should have made the aggregate sentences partly concurrent. It was an essential plank of the applicant's case that by wholly accumulating the Commonwealth sentence on the non-parole period for the state offences, the effective sentence was manifestly excessive: per Yehia J at [119] (Bell CJ at [1] and Stern JA at [2] agreeing).
3. Although the determination of the extent, if any, that a sentence is to be served cumulatively with another sentence is an exercise of discretion on which minds might differ, that discretion is generally circumscribed by proper application of the principle of totality. The principle of totality requires a sentencing court when sentencing an offender for multiple offences, to assess whether the total effective sentence is just and appropriate, having regard to the totality of the criminality involved in the offending: per Yehia J at [129] (Bell CJ at [1] and Stern JA at [2] agreeing).
R v Holder (1983) 3 NSWLR 245; (1983) 13 A Crim R 375; Ayoub v R [2024] NSWCCA 168; Azzopardi v The Queen (2011) 219 A Crim R 369; [2011] VSCA 372, cited.
1. Given the seriousness of the offences and the distinct nature of the offending, the sentence for the state offences could not comprehend the criminality of the federal offences (and vice versa) so that a degree of accumulation, even a substantial degree of accumulation, was warranted. However, by wholly accumulating the federal sentence on the non-parole period for the state offences, the total effective sentence went beyond what might be described as a "stern" or "harsh" sentence and is manifestly excessive: per Yehia J at [132] (Bell CJ at [1] and Stern JA at [2] agreeing).
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221; Astill v R [2024] NSWCCA 118; JM v R (2014) 246 A Crim R 528; [2014] NSWCCA 297; He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95; Davidson v R (2022) 300 A Crim R 214; [2022] NSWCCA 153; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64; Conte v R (2018) 86 MVR 239; [2018] NSWCCA 209, cited.
The sentencing judge noted that the evidence of early sexualisation of the applicant through the relationship with his stepsister and the evidence of sexual abuse at the hands of a family friend was not the subject of challenge. His Honour observed however that there appeared to be a "significant temporal gap" between the applicant's consumption of "mainstream" pornography and his descent into child abuse material, suggesting "…some attenuation in the causal connection between the traumatic incidents from childhood and the offending".
His Honour accepted that there is a connection between the applicant's paedophilic disorder, itself a product of traumatic events in his earlier life, and the offending. Although the applicant's moral culpability was diminished, it was not significantly diminished.
The applicant's paedophilic disorder was also relevant to other sentencing considerations such as specific deterrence and the protection of the community. The sentencing judge concluded that the protection of the community was a very significant consideration. The sentence had to reflect adequate punishment and hold the applicant to account for his criminality. His Honour also stated that general deterrence was a very significant factor.
The sentencing judge concluded that the applicant's prospects of rehabilitation "are no more than reasonable".
His Honour referred to the opinion of Dr Ellis that the applicant's current "circumstances and predicament likely contribute to the prolongation and severity of depressive mood symptoms". The applicant's mental health needs and the nature of the offending were accepted as factors that operated to cause hardship to the applicant in custody.
The applicant has two children. At the time of the sentence proceedings, his son (from a previous relationship) was 17 years old, and his daughter, with his current wife, was 9 years old. The applicant's son is in the custody of his mother.
In her letter to the court, the applicant's wife explained the severity of their daughter's disability, described as an "Unbalanced Chromosomal Translocation". It was accepted that the applicant's daughter has severe global developmental delay which requires her to be supervised at all times. She receives therapy from various service providers including a physiotherapist, occupational therapist, and speech therapist.
The sentencing judge observed that in relation to the state offences, it remains the law that the offender needs to establish "exceptional circumstances" of hardship. His Honour acknowledged the added strain upon the applicant's wife, however concluded that the applicant's daughter is not "bereft of having most of her needs attended to beyond the emotional support and stability that a parent can provide". His Honour did not take into account hardship to a third party when sentencing the applicant for the state offences.
In respect of the federal offences, the sentencing judge noted the case Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75, concluding that "[t]o the extent that it is permissible to take the consideration of hardship to others into account in relation to the federal offences, whilst I take it into account, it is of limited weight".
The criminality involved the possession of 126,938 images of child pornography. The respondent had accessed child pornography over a four-year period from 2005 to 2009 and a three-month period in 2012. The respondent shared 47,773 files over a six-month period. In respect of the production of child abuse material, the respondent had filmed the child of a family friend.
The respondent was 39 years old at the time of sentence. He had been sexually abused as a child. He lived alone and was isolated for a period of about 10 to 12 years prior to his incarceration. His risk of reoffending was assessed as low-moderate.
At first instance he was sentenced to a total effective sentence of 3 years' imprisonment with a non-parole period of 18 months. In relation to the federal offences, he was released on a recognisance release order after serving 18 months. The sentences were wholly concurrent.
In upholding the Crown appeal, the Court found error on the part of the sentencing judge in failing to partially accumulate the sentences imposed, given the significantly different nature of some of the conduct. In resentencing the respondent to a total effective period of 5 years' imprisonment with a non-parole period of 3 years and 6 months, the sentences were partially accumulated.
R v De Leeuw [2015] NSWCCA 183 was also a Crown appeal. The respondent was sentenced for four offences. Counts 1 and 2 were offences of accessing child abuse material, contrary to s 474.19(1)(a)(i) of the Criminal Code (now repealed), which carried a maximum penalty of 10 years' imprisonment. Count 3 was a further offence of accessing child pornography material contrary to the same provision but carried a maximum penalty of 15 years' imprisonment due to an amendment to that provision. Count 4 was an offence of possessing child abuse material, contrary to s 91H(2) of the Crimes Act, which carries a maximum penalty of 10 years' imprisonment. Two additional offences of possessing child abuse material were taken into account on a Form 1.
The respondent was between 54 and 61 years of age at the time of the offending. He had no criminal record and maintained employment throughout his life. He believed he had been the victim of sexual abuse in his childhood. He was assessed as a low to medium risk of reoffending.
At first instance, he was sentenced to a period of 2 years' imprisonment to be served by way of an Intensive Correction Order. The respondent was resentenced to an effective total sentence of 3 years' imprisonment, with a non-parole period of 1 year and 9 months. The sentence for the state offence was partially accumulated on the sentence for the federal offences.
In Dennis v The Queen [2017] VSCA 251, the applicant appealed against his sentence for three counts comprised of accessing child pornography, contrary to s 474.19(1) of the Criminal Code (now repealed), carrying a maximum penalty of 15 years' imprisonment; knowingly possess child pornography, contrary to s 70(1) of the Crimes Act 1958 (Vic) (now repealed), carrying a maximum penalty of 10 years' imprisonment; and, one count of failing to comply with reporting obligations, contrary to s 46(1) of the Sex Offenders Registration Act 2004 (Vic), which carries a maximum penalty of 5 years' imprisonment.
The applicant in that case had accessed 1,370 images and 217 videos over four years. He had 1,410 images and 217 videos in his possession. The age of the children was mostly prepubescent with some younger, including toddlers.
At the time of sentence, the applicant was 45 years of age. He had a criminal history of sexual offending. He was assessed as a moderate to high risk of reoffending.
At first instance, the applicant was sentenced to a total effective term of 4 years and 6 months' imprisonment, with a non-parole period of 2 years and 6 months. His appeal was allowed, and he was resentenced to a total sentence of 3 years and 9 months' imprisonment with a non-parole period of 2 years.
The sentencing judge referred to the Crown's "comparable" cases in his ROS, observing that there was a "common pattern in most of these cases of a troubled mature (in age), if not middle-aged man, who had, to all intents and purposes, led a blameless life (in the sense of there being absent any relevant criminal history), but deep down, there was a traumatic incident at childhood, of a sexual kind, with lingering effects, contributing to paraphilia and upon exposure of the offending, the offender expressed sentiments of shame and remorse".
However, his Honour concluded that the cases were of little assistance in the comparison between the objective features.
For completion, the applicant's solicitor at the sentence hearing relied upon the decision of R v Appleby [2021] ACTSC 55 ("Appleby"), where the offender was sentenced for a combination of offences (3 federal offences contrary to the Criminal Code and 15 offences contrary to the Crimes Act 1900 (ACT)). The offender was sentenced to fixed terms of imprisonment ranging from 3 months to 14 months which were partially accumulated.
The sentencing judge distinguished that case on the basis that the maximum penalty for the ACT offences was significantly less than the maximum penalty pursuant to s 91H(2) of the Crimes Act. His Honour concluded that Appleby provided very little assistance.
In He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95, after summarising the principles applicable to determining whether a sentence is manifestly excessive, Bell P (as his Honour then was), (Gleeson and McCallum JJA agreeing) continued as follows:
"[42] To this oft-cited summary of principles, may be added the following:
1. Sentencing is an "exercise of intuitive synthesis of all of the material before the sentencer in order to serve purposes that often pull in different directions" - Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]; Tammer-Spence v R [2013] NSWCCA 297 at [56];
2. Each case has to be considered on its own merits, and no case is entirely similar to any other - Windle at [61];
3. There is a wide discretion to impose a sentence that seems to the sentencing judge to be just and appropriate - Windle at [61];
4. An applicant seeking to challenge a sentence on the ground of manifest excess has a "very heavy practical burden", and must show a kind of disproportion which is so "manifest on its face as to be indicative of, not a mere difference of idiosyncratic opinions, but, rather, of substantive error of law" - R v Elemes [2000] NSWCCA 235 at [22]-[23];
5. The basis for appellate intervention is in accordance with the principles set out in House v The King (1936) 55 CLR 499; [1936] HCA 40 - Matthews v ASIC [2009] NSWCA 155 at [181]; Dowling at [59];
6. The starting point of the analysis as to whether a sentence is manifestly excessive is to identify the nature of the offence(s) - Turner at [68];
7. Whether a sentence is manifestly excessive is a conclusion, and it is not necessary to identify any particular error in the process - Dinsdale at [6]; Simmons at [30];
8. Whilst a history of sentencing might establish a range of sentences imposed, it does not establish that such a range is the correct range, nor does it establish that the upper and lower limits are the correct upper and lower limits of such a range - Martinez v R [2020] NSWCCA 250 at [39];
9. Thus, the use of statistics is a somewhat blunt instrument when seeking to establish manifest excess, and statistics may be of limited utility in a particular case and should not be given undue weight - Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54]; Fogg v R [2011] NSWCCA 1 at [59]-[60]; Windle at [62]; Furia v R [2010] NSWCCA 326 at [74]; and
10. Instead of a comparison of the sentences with statistics, when assessing whether a particular sentence is manifestly excessive, it is important to consider the specific findings as to the objective seriousness of the offence and the culpability of the offender - Holloway v R [2011] NSWCCA 23 at [85]; Windle at [64]."
As observed by N Adams J in Davidson v R (2022) 300 A Crim R 214; [2022] NSWCCA 153 at [168], the principles summarised in Obeid identify what is not sufficient to establish a ground of manifest excess: it is not sufficient merely to show that the sentence is "markedly different" from sentences imposed in other cases or that this Court might have exercised the sentencing discretion differently.
The principle that intervention is warranted only where the difference is such that there must have been some misapplication of principle is taken from observations of the High Court in Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 where Gaudron, Gummow and Hayne JJ stated:
"[58] … In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons. It follows that for a court to state what should be the range within which some or all future exercises of discretion should fall, must carry with it a set of implicit or explicit assumptions about what is, or should be regarded as, the kind of case which will justify a sentence within the specified range…".
This passage was cited with approval by the High Court in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. To ascertain whether the difference is such as to conclude that there must have been some misapplication of principle, an intermediate appellate court will often need to consider comparable or comparative cases: see also Moodie v R (2020) 284 A Crim R; [2020] NSWCCA 160 as to the use of comparative cases.
As noted above, the applicant does not rely upon comparative cases. Given the number of variables and the mixture of state and federal offences, other cases are not sufficiently comparable to be of any utility.
In the absence of patent error or any complaint about the analysis conducted by the sentencing judge of the objective and subjective features, and without comparative cases, how is the question of manifest excess to be determined?
In answering that question, I adopt the observations of Payne JA and Button J (Schmidt J in dissent) in Conte v R (2018) 86 MVR 239; [2018] NSWCCA 209 at [9], made when their Honours were also considering a ground of manifest excess:
"…[J]ust as sentencing at first instance is ultimately an exercise in instinctive synthesis, so also does the determination by an intermediate appellate court that a sentence previously imposed is manifestly excessive or manifestly inadequate involve a degree of intuition and evaluative judgment that is not readily amenable to logical steps in an irresistible process of reasoning, or determinative lists of countervailing factors."
Engaging in the process of evaluative judgment requires consideration of multiple factors including the objective seriousness of the offences, the applicant's subjective case, the purposes of sentencing and relevant sentencing principles such as totality. The offences were rightly described by the sentencing judge as either "serious" or "very serious". The state offences involved an appalling breach of trust on the part of the applicant. Notwithstanding the fact that the victims were unaware that they were being filmed, the gross violation caused by the applicant's actions called for condign punishment.
The federal offences included possession and dissemination of child abuse material. As acknowledged by the sentencing judge, they are not victimless crimes. The principles relevant to sentencing offenders for offences including the possession and dissemination of child abuse material were helpfully summarised in Porte at [59]-[72] and Minehan v R (2010) 201 A Crim R 243; [2010] NSWCCA 140 at [81]-[101].
General deterrence was an important consideration that warranted significant weight in the sentencing exercise. Specific deterrence, given the expert evidence relating to the applicant's mental condition, remained a matter "of some weight". Furthermore, protection of the community was a very significant consideration. The applicant had to be held to account for his criminality and adequately punished. The sentencing judge also rightly had regard to retribution and denunciation as relevant purposes of sentencing.
On the other hand, the applicant was genuinely remorseful and contrite. The nexus between the paedophilic disorder and his offending resulted in a modest reduction of his moral culpability. The applicant had no prior criminal record. His prior good character was given some limited weight. His prospects of rehabilitation were regarded as "reasonable". In view of the applicant's mental health and the nature of the offending, it was accepted that the applicant endured and was likely to continue to endure hardship in custody.
It was appropriate for the sentencing judge to impose two separate aggregate sentences and although each aggregate sentence may be described as "stern", neither is manifestly excessive. The criminality of the federal offences was different to the criminality involved in the state offences. The federal offending involved the accumulation, sharing and exchange of child abuse material online. The state offending involved the covert filming of children who were known to the applicant without their knowledge, and while they were in various stages of undress.
That said, there were some commonalities. Although the periods in which the state and federal offending occurred did not entirely overlap, the federal offences (from at least 23 June 2020 to 16 March 2022) commenced before the end of the period in which the state offences were committed (1 June 2016 to 30 August 2020).
Although the offences constituted separate and distinct illegal acts, they all involved criminal behaviour that demonstrated a sexual interest in children. Furthermore, and relatedly, the unchallenged expert evidence established a causal nexus between the applicant's paedophilic disorder and the commission of the offences.
While the applicant did not contend that the sentencing judge erred in the application of the totality principle, underpinning the sole ground of appeal is a complaint that the sentencing judge should have made the aggregate sentences partly concurrent. I appreciate that this was not raised as a separate ground. However, it is an essential plank of the applicant's case that by wholly accumulating the Commonwealth sentence on the non-parole period for the state offences, the effective sentence is manifestly excessive. It follows that it is necessary to consider the principle of totality and its application in this case.
The sentencing judge addressed totality in the following way:
"[175] The offender's solicitor acknowledged that for the state offences, there were multiple individual victims and that the harm sustained by each of them warrants accumulation. She also recognised that there were multiple victims in relation to the federal offences, which also warranted accumulation. Nevertheless, she submitted that the offences, altogether, represented an episode of criminality.
[176] The Crown submitted that concurrency should apply in relation to sequences 13 and 19, and between 22 and 37 and 26 and 27. The Crown submitted that there needed to be accumulation for the state offences, reflecting the different victims.
[177] I disagree with the proposition that there was an 'episode of criminality'. There is some force to that proposition insofar as the federal offences are concerned, although even then there was an on-going course of conduct that marked certain offences. There should be significant, but not entire, concurrency between sequence 1 and the other federal offences even though there was considerable duplication of the content of the child abuse material. Some accumulation is necessary to reflect the different offences between sequence 1 and the other federal offences.
[178] I accept the Crown's submission that the aggregate state sentence should be accumulative upon the aggregate sentence for the federal offences, given the qualitatively different nature of the offending and the harm imposed on 4 individual victims (actually known by the offender). Within the aggregate sentence for the state offences I have accorded some concurrency, especially where there was a common victim in multiple sequences. I propose to commence the federal sentence upon the expiration of the non-parole period for the aggregate sentence for the state offences. I have allowed substantial, although not full, concurrency for the federal offences in reaching the aggregate sentence for those offences. The effect of the two aggregate sentences is intended to reflect my comprehension of the offender's criminality overall."
It is not entirely clear what his Honour was referring to when he said that he accepted "the Crown's submission that the aggregate state sentence should be accumulative upon the aggregate sentence for the federal offences…". The respondent's written submissions at first instance (MFI 1 in the sentence proceedings) did not address the issue of accumulation and concurrency or the principle of totality and did not submit that one sentence be wholly accumulated on the non-parole period of the other.
The applicant's written submissions at first instance (MFI 4 in the sentence proceedings) briefly referred, under the heading of "Concurrency and Totality", to Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, submitting that "these offences are part of an episode of criminality with common features".
During oral submissions in the Court below, the sentencing judge raised with the Crown questions of accumulation and concurrency. However, in large part, those exchanges related to the degree of concurrency and accumulation reflected in each of the aggregate sentences as opposed to the issue of whether, and to what extent, one sentence should be wholly accumulated on the other.
The Crown at first instance submitted orally that there should be "overlap" in relation to the Commonwealth offences, and in particular sequences 26 and 27 and sequences 22 and 37, agreeing that in relation to the "trading of the material" there should be a significant degree of concurrency. In respect of the state offences, the Crown submitted that there should be a "significant accumulation" reflected in the aggregate sentence because those offences involved separate victims.
In the context of submissions relating to whether there should be accumulation in respect of the indicative sentences for each set of offences, the following exchange took place:
"HEALY: These are the State offences, would be that there should be accumulation between those offences because each offence involves a separate victim and the harm to that victim needs to be recognised and that is - I rely primarily on the case of Martin which is in the comparative cases for that.
…
HEALY: At paragraph 3 of Martin, it's illustrated to have been an error on the part of the sentencing judge not to have accumulated that style of offending and that also, not only should those sentences be accumulated, but because it is really an entirely different category of offending, it should also be accumulated on the Federal offending. Of course, all of this -- (emphasis added).
HIS HONOUR: I think the general structure of these things, in this very [complicated] labyrinth of combined State and Federal laws is that, in terms of the structuring, I give an aggregate sentence for the State offences and then I look at the Federal offences. Do you disagree with that structure?
HEALY: That's open to your Honour and, certainly, the Crown would not be heard against an aggregate sentence for the Federal sentences. The only thing I would note in relation to the State offences is that the aggregate sentence should be expressed in a way that makes it clear that there has effectively been accumulation between the offences, in the indicative sentences, I mean."
In submitting that the aggregate sentence for the state offences should be "accumulated on the Federal offending", it is not entirely clear that the Crown was urging the sentencing judge to wholly accumulate one sentence on the non-parole period for the other.
The sentencing judge then inquired of the Crown what his view was in relation to the "structuring of the sentence". The Crown responded in the following way:
"The Crown isn't opposed to there being two aggregate sentences. The Crown would be opposed to a Federal sentence being one that involved a recognisance release order and the Crown would rely on the comparative cases for that to say that, in all the circumstances, the offending is too serious and that a sentence that could involve a recognisance release order is not open. However, I am conscious of the limitations in Barbaro not to go further." (Emphasis added).
Nowhere else in the transcript is there a discussion of totality. As the Crown in this Court accepted, the exchange quoted above (at [126]) concerned two aggregate sentences being imposed and cannot be read as the Crown submitting that they be wholly cumulative. Although the sentencing judge was assisted in relation to concurrency and accumulation in respect of each aggregate sentence, there was little, if any, discussion about the degree of concurrency or accumulation, and the related principle of totality, as between the separate aggregate sentences.
Although the determination of the extent, if any, that a sentence is to be served cumulatively with another sentence is an exercise of discretion on which minds might differ, that discretion is generally circumscribed by proper application of the principle of totality. The principle of totality requires a sentencing court when sentencing an offender for multiple offences, to assess whether the total effective sentence is just and appropriate, having regard to the totality of the criminality involved in the offending: Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1.
The question as to whether the total effective sentence here is manifestly excessive necessarily involves a consideration of totality. The principle of totality was described by Street CJ in R v Holder (1983) 3 NSWLR 245; (1983) 13 A Crim R 375 (at 260) as follows:
"…The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences..."
More recently, in Ayoub v R [2024] NSWCCA 168 at [29]-[30], Dhanji J (with whom Harrison CJ at CL and N Adams J agreed), said:
"[29] The principle of totality is well established. In Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17, Bell and Keane JJ said (at [37]):
'Just as a sentencing judge is accorded as much flexibility as is consonant with the statutory sentencing regime in determining the appropriate sentence, so, too, the judge is to be accorded the same flexibility in determining the structure of two or more sentences. The [Crimes (Sentencing Procedure) Act 1999 (NSW)] does not confine the approach to be taken to the structure of two or more sentences. It assumes concurrency in the absence of a direction to the contrary. The sentencing judge was required to impose an appropriate sentence for each offence and to structure the sentences such that the overall sentence was just and appropriate to the totality of the appellant's offending behaviour. As the Court of Criminal Appeal correctly said, the question of concurrency or partial accumulation required consideration of whether the sentence for the manslaughter offence could encompass the criminality of both offences.' (footnotes omitted)
[30] The question of whether the sentence for one offence can 'encompass the criminality' of other offences, has also been expressed in terms of whether the total sentence is sufficient to comprehend the total criminality: Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1 at [27]; R v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115 at [52]. In answering that question, it is necessary to bear in mind that, particularly in the context of long sentences, the severity of a sentence increases at a rate greater than the increase in its length. That is, a sentence of 10 years is more than twice as severe as a sentence of 5 years: R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [16]."
Although the sentencing judge specifically addressed totality, his Honour appears to have proceeded on the premise that the Crown below urged full accumulation of one sentence upon the other. Clearly, given the seriousness of the offences and the distinct nature of the offending, the sentence for the state offences could not comprehend the criminality of the federal offences (and vice versa) so that a degree of accumulation, even a substantial degree of accumulation, was warranted. However, I am of the view that by wholly accumulating the federal sentence on the non-parole period for the state offences, the total effective sentence went beyond what might be described as a "stern" or "harsh" sentence and is manifestly excessive.
In resentencing the applicant, I would structure the sentence so that there is partial concurrency by a period of 18 months. There are, in my view, sufficient commonalities to warrant partial concurrency, as observed at [117]-[118].
Accordingly, I propose the following orders:
1. Grant leave to appeal.
2. Allow the appeal.
3. Quash the sentence imposed on the applicant in the District Court on 10 May 2023, and in lieu thereof, sentence the applicant as follows:
1. For the state offences (sequences 12, 13, 19 and 20), I impose an aggregate sentence of 6 years' imprisonment, commencing on 16 March 2022 and expiring on 15 March 2028. The non-parole period is 3 years and 4 months, expiring on 15 July 2025.
2. For the federal offences (sequences 1, 22, 26, 27 and 37), I impose an aggregate sentence of 6 years and 6 months' imprisonment, commencing on 16 January 2024 and expiring on 15 July 2030. I fix a non-parole period of 3 years and 7 months, expiring on 15 August 2027.
The total effective sentence is imprisonment for 8 years and 4 months, with a total effective non-parole period of 5 years and 5 months.
The federal offences
In respect of the federal offences, the sentencing judge first turned to consider sequence 1. The offence involved a total of 6,328 video files and 66,236 picture files located in six digital devices. Real children were depicted, some aged as young as two years old, in a variety of "rough penetrative vaginal and anal intercourse" including bestiality. The sentencing judge noted that the nature of the material involved "substantial cruelty inevitably causing mental harm upon vulnerable children".
His Honour took into account the volume and nature of the material together with the transferring of the material from the hard drive to individual devices as indicating the "very serious objective nature of the offending".
In respect of sequences 22 and 37, the sentencing judge considered that the transmission of the child abuse material involved encryption that made it difficult to detect. The material depicted real prepubescent female children in sexual acts. His Honour concluded that the offending was "serious".
In respect of sequences 26 and 27, the sentencing judge noted that the applicant had made the sexual abuse material available to six others and solicited material from seven others over a period of approximately seven months. Once again, real children were depicted. His Honour noted that the graphic content of the material "exhibited a high degree of depravity, indicating extremely young children engaging in vaginal and anal intercourse with adults and other children", concluding that the offences were "very serious".
In relation to the federal offences, the sentencing judge noted that they are not victimless crimes. His Honour referred to R v Porte (2015) 252 A Crim R 277; [2015] NSWCCA 174 ("Porte") at [65]-[70], where Johnson J (Leeming JA and Beech-Jones J agreeing), emphasised that the possession of child pornography creates a "market for the continued corruption and exploitation of children".