Melham v Regina

Court of Criminal Appeal (NSW)|2011-05-23|Before: Macfarlan JA, Johnson J, Garling J, MacFarlan JA

Judgment 1MACFARLAN JA : I agree with Garling J. 2JOHNSON J : I agree with Garling J. 3GARLING J: This is an application for leave to appeal in respect of a sentence imposed in the District Court of NSW by his Honour Judge Bennett on 19 July 2010. 4The applicant, Mr Graeme Melham, pleaded guilty before Bennett DCJ to two offences. The first offence was being in possession of child pornography contrary to s 91H(2) of the Crimes Act 1900. The second offence was that of using a carriage service to access child pornography contrary to s 474.19(1)(a)(i) of the Criminal Code Act 1995 (Cth). 5The offences related to the use by the applicant of his personal computer to access, over the internet, child pornography material, download it and store it on his computer. 6The maximum penalty for the offence pursuant to the NSW Act is imprisonment for 10 years. 7The maximum penalty for the offence at that time, pursuant to the Commonwealth Criminal Code, is also imprisonment for 10 years. 8There is no standard non-parole period applying to either of the offences. 9In respect of the State offence, the sentencing judge, having allowed for a discount of 25 per cent, for the utilitarian value of the plea of guilty, imposed an overall sentence of 3 years and 9 months imprisonment, with a non-parole period of 3 years commencing 19 July 2010 which was the date upon which the sentence was imposed. 10In respect of the Commonwealth offence the sentencing judge imposed an overall sentence, again after allowing a discount of 25 per cent for the plea of guilty, of 3 years and 9 months with a non-parole period of 2 years and 6 months commencing on 19 January 2011. 11It can be observed that there was a period of 6 months by way of cumulation between the two offences. Ultimately, the sentence meant that the applicant will not be eligible for parole until the expiry of both of the non-parole periods, which will occur concurrently on 18 July 2013.

Facts 12The statement of agreed facts was tendered to the sentencing judge. A brief summary of those facts is set out below. 13In late 2008, the Australian Federal Police Child Protection Operations Team received information in relation to the sharing of a child pornography file on the internet using Peer 2 Peer (P2P) software. P2P software enables direct connection and file sharing between two computers logged on to the internet. 14Having received that information, the Australian Federal Police (AFP) identified the applicant as the owner of one of the internet protocol addresses that had been identified. 15On Friday, 22 May 2009, members of the AFP executed a search warrant at the applicant's home address. An initial field examination revealed a number of video and image files depicting child pornography stored on the computer. 16The computer equipment, including external hard drives, was seized and returned to the AFP premises and subjected to a careful examination. 17The AFP established that there were 1196 multimedia files and 45182 image files located within all of the hard drives which had been seized. Each of these files was classified as child pornography. 18The applicant accepted before the sentencing judge that the table below represents an accurate summary of the nature of the child pornography material held on the computer. Nature of Conduct depicted Images Multimedia files Sadism and bestiality 23 1 Penetrative sexual activity between adult and child 62 15 Non-penetrative sexual activity between adult and children 34 5 Sexual activity between children or solo masturbation 1511 30 Sexualised posing images 43,552 1145 ________ ________ 45,182 1196

19The applicant participated in a recorded conversation with officers of the AFP and made the following admissions about his conduct: (a) He used the e-Mule P2P program on his computer to download the child pornography material; (b) The images and videos of child pornography which he downloaded were kept in a separate folder on the hard drives; (c) He had not informed his family about this conduct, he undertook it away from his family, usually late at night while his family was asleep, so his wife and children did not see or know what he was doing; (d) He had been undertaking the conduct for about ten years. He believed his conduct was both a problem and a sickness because he found that he could not stop himself from searching for and obtaining possession of child pornography material; (e) In order to find the child pornography material on the internet he undertook random searches during which he only looked for female children; (f) He was the only person with a password to use the computer that obtained the relevant child pornography material. 20In the course of the interview, he told the AFP that he sought out the child pornography material because of "self gratification". It is convenient to note here that in the course of evidence before the sentencing judge, the applicant denied that this term referred to sexual gratification but said that it was a term which referred to the relieving of his anxiety through collection of the material. 21On the day of the search, the applicant was arrested at his Prestons home. He was cooperative with the police. He was charged that day with the offences to which I have earlier referred. He was granted conditional bail. He remained on bail until Bennett DCJ pronounced his sentence. 22On 12 March 2010, the applicant pleaded guilty to both offences in the Local Court and was committed for sentence to the District Court. On 9 July 2010, when the proceedings were heard by Bennett DCJ, the applicant adhered to his pleas of guilty to each of the offences.

Applicant's Submissions on Sentence 23The applicant gave evidence before the sentencing judge. Expert reports and evidence was tendered from Dr Olav Nielssen, a forensic psychiatrist, and Mr Stewart Perritt, who is a clinical psychologist. 24There was further evidence from people who knew the applicant well, namely, Sister Anne Martin, a member of the Sisters of Saint Joseph of the Sacred Heart Order, and Father Peter Smith, the Parish Priest of Saint Francis Xavier's Parish at Leumeah. 25Mr Walsh, the solicitor for the applicant, made extensive written submissions to the sentencing judge and also addressed him orally. 26During submissions, Mr Walsh accepted that the child pornography material could only be appropriately categorised as "... disgusting, abhorrent and repugnant" . He accepted that the applicant's conduct was aggravated not only by the number of images and multimedia files involved but also by the nature of the subject matter displayed on them. However, he submitted correctly that the vast majority, in numerical terms, of the images were in the less serious categories of material. 27He submitted that the context in which the applicant's behaviour occurred, was one which included his suffering of a mental illness for many years which manifested itself in different forms of anxiety, an obsession with collecting a variety of items including videos of film series, television episodes and the like. 28Mr Walsh accepted that the applicant started collecting images of child pornography material, downloaded by the internet, from about 2002 onwards. He described his client's behaviour as " dysfunctional and abhorrent ". 29In oral submissions, Mr Walsh frankly conceded that, notwithstanding his client's denial of obtaining any sexual gratification from viewing the child pornography material, there must have been such a component in his behaviour. He said any other submission would be irrational.

Subjective Features 30The applicant was born on 15 June 1962 and was aged 47 at the time of his arrest. He will shortly turn 49. 31He had no prior history of any offences or convictions. The evidence established that in every respect, other than the offending conduct, the applicant was a good man. He was a good family man who looked after and participated fully in life with his wife and three children. 32He was the Chairman of the Pastoral Council of his parish church. He was involved in a number of activities within the parish, assisting generally with the parish works, and assisting members who were in particular need. He held a senior position in the NSW public service. 33The applicant grew up in a family where his father had a severe depressive illness for over 25 years which had resulted in four inpatient admissions for treatment with electro-convulsive therapy. The applicant's father had been a problem gambler and a compulsive collector which had been associated with an anxiety state. The applicant's three siblings had each suffered from depression at some stage during their adult life. 34The applicant had himself suffered several periods of depression during his adult life from which he seemed to have recovered without treatment. In about 2002, he consulted a general practitioner for treatment of depression and for assistance with his compulsive behaviour. He was not prescribed any antidepressant medication nor was he referred for further assessment or counselling. He was prescribed an over-the-counter medication to assist him to relax. 35This treatment did not remediate any of the aspects of his illness. 36Shortly after being charged, the applicant had suicidal ideation, took an overdose of sedative medication and was admitted to the Psychiatric Emergency Care Centre at Liverpool Hospital for four days. He then spent some time in a private psychiatric hospital during which he was prescribed an antidepressant medication. 37Prior to his sentencing, the applicant had been engaged in a period of almost 12 months of counselling with Mr Perritt, which together with the antidepressant medication he had been prescribed, seemed to provide some improvement in his condition. 38Dr Nielssen diagnosed him as suffering from a major depression which was in partial remission. He described the disorder as being in partial remission because the applicant did not seem to him to be "pervasively depressed" and because the applicant had reported to him that he had recovered from the more severe phase of the illness as the result of treatment with antidepressant medication and counselling. 39Dr Nielssen concluded, as did Mr Perritt and Ms Youssef, a forensic psychologist who compiled a psychological presentence assessment, that the applicant was at low risk of reoffending. 40At the time of the sentencing hearing, the applicant maintained, notwithstanding the offences and their effect upon his family, a close relationship with his wife and children who continued to support him. 41The applicant's counsel conceded before Bennett DCJ that the nature of the offences was such that a sentence of full time imprisonment was appropriate and that a sentence which did not contain any full time imprisonment component would be contrary to principle.

Remarks on Sentence 42The sentencing judge carefully reviewed the objective and subjective features of the offences and the submissions which had been made. 43He found that the applicant suffered from an obsessive compulsive disorder although he rejected the proposition that this disorder was solely the cause of the offence. He found that the applicant had "... at least some interest in the product that has brought him before this Court ... The interest could not have been other than a sexual interest ". 44He noted that there was no allegation that the applicant had disseminated any of the material stored on his computer to anyone else. 45He summarised his conclusion in this way: "The evidence that the offender has suffered depression and anxiety over the years with an evolving obsessive compulsive behaviour pattern is compelling. I am persuaded that his collecting of all of the programs and movies and the adult and child pornography is a manifestation of that. I am satisfied however that the child pornography was of sexual interest to the offender as was the adult pornography. He knew it was wrong to access it and to have it. It was necessary for him to do so to assuage a compulsion to collect." 46His Honour found, having considered the objective criminality involved, including the nature and content of the material, the age of the children who were photographed or filmed, the depravity involved in the activities portrayed, the large number of images and the large number of different children who were depicted and victimised in the material, that the offending fell within mid-range. 47He found that having regard to the time at which the plea of guilty was entered, that it was at the earliest reasonably available opportunity and accordingly, it was appropriate to allow a discount of 25 per cent from any sentence that might otherwise be imposed. 48He found that the applicant was anxious to achieve rehabilitation, and that he had prospects of rehabilitation that would be realised upon proper management of his counselling treatment. 49His Honour considered individually each of the various subsections of s 21A of the Crimes (Sentencing Procedure) Act 1999 and also s 16A of the Crimes Act 1914 (Cth). It will be necessary to deal with this part of his Honour's judgment in due course when dealing with the particular grounds of appeal in this respect. 50Finally, before imposing sentence, his Honour drew attention to the principles discussed by Sperling J in R v Hemsley [2004] NSWCCA 228 at [33]-[36]. His Honour noted that there was " some contribution to this offending " from elements of his obsessive compulsive disorder which provided some mitigation but "... only to a moderate degree ".

Grounds of Appeal 51Five grounds of appeal were relied upon by the applicant:

That the learned sentencing judge erred in rejecting the proposition that the offender collected the images by way of a compulsive process;
That the learned sentencing judge erred in rejecting the offender's evidence and that of the experts as to the reasons for his offending behaviour;
That his Honour erred in finding aggravating conduct pursuant to s 21A(2)(m) and (n) of the Crimes (Sentencing Procedure) Act involving multiple criminal acts and planned or organised activity;
That his Honour erred in taking into account as an aggravating factor s 21A(2)(g) and (l) of the Crimes (Sentencing Procedure) Act involving harm suffered, vulnerability and multiplicity of victims;
That the sentencing imposed by the learned sentencing judge was manifestly excessive having regard to the objective and subjective features of the offence.

Grounds 1 and 2 52These grounds can conveniently be considered together because they deal with the issue of the applicant's mental health, the evidence by which that condition was proved, and its causal effect on the applicant's conduct. 53With respect to these two grounds of appeal, the appellant's submission is that the sentencing judge wrongly rejected the applicant's evidence that his accessing the child pornography material over the internet and his possession of that material was caused by his mental illnesses which comprised depression, anxiety and obsessive compulsive disorder. The applicant submitted that the obsessive nature of the underlying psychiatric illness was interlinked with the nature of the appellant's psychiatric presentation and "... coupled with other subjective features, meant this was not a case that would otherwise require 'condign punishment'. " 54The written submission in these terms was somewhat opaque. 55When developed in oral submissions, it seemed that the applicant was submitting that whilst, he accepted, that in objective terms there was an element of sexual interest involved in the applicant's behaviour in accessing child pornography, that was not the predominant feature. The applicant submitted that the sentencing judge had therefore not given sufficient weight to the subjective element of the applicant's mental illness when imposing sentence. 56The authorities in this and other courts provide that mental illness may be relevant in a number of ways in the sentencing process. 57In the first place, if an offender's mental illness contributes materially in a causative sense to the commission of an offence, the offender's moral culpability may be reduced with the result that there may not then be the same requirement for denunciation of the conduct and hence the punishment warranted may be reduced: Hemsley at [33]; R v Israil [2002] NSWCCA 255 at [21], [23]-[26]; R v Verdins [2007] VSCA 102 at [23]-[26]; Leach v The Queen [2008] NSWCCA 73 at [10]-[12]. 58Secondly, a mental illness may mean that in the case of a particular offender, the principle of general deterrence may need to be moderated: R v Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; Israil at [22]; Hemsley at [34]. 59Thirdly, a custodial sentence may weigh more heavily on a mentally ill person: Israil at [26]; Hemsley at [35]. 60Fourthly, a mental illness may impact upon the need to address specific deterrence, either by way of moderation of penalty, or else eliminated: Verdins at [32]; Leach at [10]. 61The learned sentencing judge made it clear in his judgment that he accepted the psychiatric evidence of the psychologists and Dr Nielssen that the applicant had an obsessive compulsive disorder and that he suffered from the mental illnesses of which evidence was given. However, on the basis of what Dr Nielssen said, his Honour was not satisfied that the mental illness was the sole reason for the applicant to undertake the conduct concerned and that his sexual interest in child pornography was manifest. 62His Honour concluded in these terms which I have earlier set out, but which bear repeating here: "The evidence that the offender has suffered depression and anxiety over the years with an evolving obsessive compulsive behaviour pattern is compelling. I am persuaded that his collecting of all of the programs and movies and the adult and child pornography is a manifestation of that. I am satisfied however that the child pornography was of sexual interest to the offender as was the adult pornography. He knew it was wrong to access it and to have it. It was not necessary for him to do so to assuage a compulsion to collect. He recognised as much when he said that he discarded his holdings entirely a year before but then returned to its collection." 63That conclusion was then referred to by his Honour when he later said in his judgment this: "I have reminded myself of what Sperling J said in R v Hemsley [2004] NSWCCA 228 at paras 33-36 where his Honour discussed the principles relevant to impaired mental health. Upon the findings I have made there is some evidence to show that there has been some contribution to this offending from the obsessive-compulsive collection of material and it does provide some mitigation but in my judgment only to a moderate degree. It remains that in my judgment the offender had an interest in the child pornography to have engaged upon its collection in such vast quantities." 64The symptoms of the mental illness to which the sentencing judge was referring included the habit of the applicant collecting in large quantities videos, television programs, electrical leads and cables, and the like. 65It is clear that the learned sentencing judge had regard to the appropriate principles of law and made findings that were largely favourable to the applicant. 66In so far as the learned judge rejected the applicant's subjective explanation that his mental illness was the cause of his crime, the learned judge did so based upon the expert evidence of Dr Nielssen and other evidence which surrounded the commission of the crime. 67I can detect no error in the approach of the learned sentencing judge. The learned sentencing judge allocated weight to the issue of the applicant's mental illness. The learned sentencing judge was persuaded that there was a moderate impact of the mental illness on the criminal conduct of the applicant. 68The submission of the applicant that the learned trial judge gave insufficient weight to this feature is not one that this Court will readily embrace. As Spigelman CJ said in R v Baker [2000] NSWCCA 85 at [11]: "Questions of weight in the exercise of a discretion are matters for the first instance judge. The circumstances in which matters of "weight" will justify intervention by an appellate court are narrowly confined." 69This is not an example of a case in which this Court should interfere with respect to these grounds. I would not uphold the appeal on either of these grounds.

Grounds 3 and 4 70Each of these grounds raise error on the basis that the sentencing judge took into account as an aggravating factor matters which were inappropriate so to do. 71The grounds raise the provisions of ss 21A(2)(g), (l), (m) and (n) of the Crimes (Sentencing Procedure) Act , which apply only to the State offence. The provisions have no application to the Commonwealth offence. 72Section 21A(2) of that Act provides that the Court is to take into account as an aggravating factor a variety of matters including: "(g) the injury, emotional harm, loss or damage caused by the offence was substantial, ... (l) the victim was vulnerable, for example, because the victim was very young or very old or had a disability, or because of the victim's occupation (such as a taxi driver, bus driver or other public transport worker, bank teller, or service station attendant), (m) the offence involved multiple victims or a series of criminal acts, (n) the offence was part of a planned or organised criminal activity," 73The applicant submitted that it was an error for the learned sentencing judge to have regard to each of these matters as aggravating circumstances, particularly where the essential elements of the offences were such that the subject matter of the aggravating factors were necessary to be considered in any event. 74The Crown accepted, in its oral submissions to the Court, that the learned sentencing judge had erroneously taken these matters into account as aggravating circumstances. However, the Crown submitted that whilst the sentencing judge was not entitled to treat the applicant's conduct as containing aggravating features for the purposes of the legislation to which I have referred above, the sentencing judge was nevertheless entitled to take those matters into account when assessing the objective seriousness of the offending. 75As well, the Crown submitted that to the extent that there was any error, it affected only the NSW offence and not the Commonwealth offence. 76It is important then to understand the way in which the learned sentencing judge drew attention to these "aggravating factors". 77Having described all of the objective circumstances of the offence, the learned sentencing judge concluded that the offending fell within the mid-range of seriousness. 78He then proceeded to note the submissions which directed his attention to the various subparagraphs of s 21A(2) to which I have referred above. He said that he would have regard to those matters. He said: " I bring these factors to account ". 79It is not clear to me that his Honour regarded these aggravating factors as being of sufficient seriousness to warrant viewing the nature of the offending as falling anywhere above the mid-range. Indeed, the sentence which his Honour imposed suggests that he regarded the totality of all features of the offending as falling within the mid-range. 80I accept that the learned judge was in error in referring to these as aggravating factors. I do not accept however that as a consequence of that error the result reached by his Honour in an assessment of the seriousness of the offending was in error. It would be hard to describe the seriousness of the offending in anything less than mid-range. 81I do not think that the error which is accepted between the parties has occasioned any substantive effect in his Honour's judgment, nor do I think that that error has occasioned any miscarriage of justice. 82I would not uphold the appeal on these grounds.

Ground 5 83Ground 5 submits that the sentence imposed by the sentencing judge was manifestly excessive. 84The maximum penalty for each of the offences was 10 years imprisonment. There was no standard non-parole period fixed by the legislation. The sentence imposed for the offences which the judge regarded as being in the mid-range of seriousness was an overall non-parole period of 3 years. 85The relevant test for the applicant to succeed on this ground requires the applicant to demonstrate that the sentence was unreasonable or plainly unjust: Dinsdale v The Queen (2000) 202 CLR 321 at [6] per Gleeson CJ and Hayne J. In approaching the task of establishing that the sentence is unreasonable or plainly unjust, the Court does so within the context that there is no one single correct sentence, but rather the process of sentencing involves due allowance for differences of judicial opinion at first instance whilst still acting in accordance with principle: Vuni v R [2006] NSWCCA 171 at [33] per Hoeben J (Tobias JA and James J agreeing); Stewart v R [2009] NSWCCA 152 at [16]-[17] per Hodgson JA (Buddin and Price JJ agreeing); Hayek v R [2010] NSWCCA 139 at [37] per McCallum J (Simpson and Johnson JJ agreeing). 86The submissions of the applicant on this ground can be summarised in this way: (a) The applicant accepted that his conduct in the commission of the offences was extremely serious and that the number of images, the nature and content of them, and the period of time over which he had been accessing, downloading and viewing the child pornography material were significant; (b) When assessing the objective criminality involved in the offence, it was necessary to keep in mind that the applicant was not involved in any dissemination of the subject material, its communication to others, or engaged in any profit-making exercise with respect to that material; (c) The applicant had a very strong subjective case; (d) Whilst general deterrence was of importance, the weight to be given to general deterrence in this case was less by reason of the applicant's mental illness. 87The applicant also provided reference to a series of other cases, in which the sentences were less than that which had been imposed in this case by the sentencing judge. 88It is necessary to keep in mind when reviewing the cases which are said to be comparable that in many of those cases the maximum penalty for the State offence was only 5 years, whereas in more recent times the NSW legislature has increased the maximum penalty to 10 years. The applicant's crime occurred after the increase in penalty by the legislature. 89The applicant accepted that in accordance with Markarian v The Queen (2005) 228 CLR 357 at [30]-[31] per Gleeson CJ, Gummow, Hayne and Callinan JJ, it was a relevant factor to have regard to the maximum available sentences for offences. However, the applicant submitted that regard to those maximum penalties needed to be balanced with all of relevant factors in the particular case: See R v Poynder [2007] NSWCCA 157 at [84]. 90A careful reading of the cases to which the applicant drew attention, demonstrates, as one might expect, a variety of penalties reflecting a combination of different offences and a variation in the facts involved in each offence. 91I accept that reference to the cases nominated demonstrate that the sentence in this case falls at the high end of the range of sentences imposed for similar offences. But the question remains whether it falls within the range of the permissible exercise of the sentencing judge's discretion. In my opinion, having regard to the circumstances outlined earlier, it does. 92The factors which the sentencing judge was entitled properly to have regard to, and to which he did have regard, demonstrate that the offending fell within the mid-range. There were a large number of images, the nature and content of those images included quite vile and abhorrent images, the number of different children involved in the images was very large, probably about 1000 or so, and the time period over which the applicant had access to these images by searching on the internet for them, downloading them, and holding them on his computer, was a significant one. 93True it is that the applicant had strong subjective features, but taking into account all of the purposes of sentencing, and particularly the objective features of the criminality to which I have referred, I am not persuaded that the sentence imposed for both offences fell outside the range of discretion properly open to the judge. 94In my opinion, the applicant has not shown that the sentence imposed was "unreasonable or plainly unjust" nor that any lesser sentence is warranted in law: s 6(3) Criminal Appeal Act 1912. 95This ground ought also be rejected.

Orders 96I propose these orders: (1) Leave to appeal granted. (2) Appeal dismissed.

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