Merrill (a Pseudonym) v The Queen [2018] VSCA 62

6 For the reasons which follow, which are in substance the same as those advanced by Santamaria JA, we would grant leave to appeal, but dismiss the appeal.

7 The applicant first met the victim, LNC in Ho Chi Minh City in Vietnam in July 2014, outside a massage parlour where LNC was working. LNC was then aged 14 years. Initially the relationship was one of friendship and not romance, with the applicant paying for LNC's rent and buying her a laptop and mobile phone. The applicant maintained contact with LNC once he returned to Australia, communicating over Facebook.

8 Subsequent to the initial contact, the applicant visited LNC numerous times. In December 2014, the applicant attended at a hotel with LNC where she made sexual advances towards the applicant. The applicant told police that he refused these advances at this time.

9 However, by January 2015, at which time LNC was 15 years old,[8] the relationship had become sexual. She changed her name on Facebook to 'La Merrill' and her relationship status was noted as 'engaged'.

10 The applicant continued to visit LNC, engaging in an intimate sexual relationship with her, until his arrest in November 2015.

11 On 16 November 2015, the applicant arrived at Melbourne International Airport on a flight from Kuala Lumpur. The applicant was apprehended by officers of the Australian Border Force ('ABF'). The applicant had come to the attention of the authorities because LNC had lodged an application for a tourist visa to visit Australia and noted that she was in a relationship with the applicant.

12 The applicant and his baggage were searched and a number of images of a naked Asian female were found on the applicant's iPhone. Those photos were taken by the applicant of LNC in a hotel room in Thailand in October 2015, two weeks prior to LNC's 16th birthday.

13 The applicant was cautioned by police and interviewed at the airport. He made full admissions as to the nature of his relationship with the victim. He said that he had been in a sexual relationship with LNC since January 2015 and that the images on his phone were of her. That he had travelled to visit LNC on numerous occasions since first meeting her. The applicant told police he did not believe the photographs on his phone were child pornography because he intended to marry LNC.

14 The applicant was charged and bailed. A search warrant was subsequently executed at his home and police seized a number of devices including an iPhone, laptop and USB stick. These devices contained 61 files/unique images determined to be child pornography, where the victims were aged between eight and 16 years. The images were classified as per the Australian National Victim Image Library ('ANVIL') model and classified. The classifications are depicted in the below table:

15 The table shows that the majority of the images which were examined fell within category 1 of the ANVIL scale. Images in this category depict children aged approximately between 10 and 16 years posing naked or partially clothed in a sexually explicit manner, many with a focus on the genitals.[9]

16 LNC was spoken to by Vietnamese Police. She confirmed that she had known the applicant since July 2014 and that he had visited her on a number of occasions and stayed with her. She stated that she had initiated the sexual relationship with the applicant and they had sex often on the trips they took together.

17 In a victim impact statement dated 16 June 2016, exhibited on the plea hearing, LNC stated that the offending did not have an emotional, psychological or physical impact on her. She described her situation as being improved since meeting the applicant, because prior to that time she had been depressed to the point of being suicidal. She said that the applicant had been an encouragement to her and had helped her to strive to be a better person. She said that she felt sad and terrible about what happened as a result of charges being laid. She said she took responsibility for what had occurred.

18 As previously indicated, the applicant is now aged 61, and was aged 59 at the time of this offending. He does not have any prior criminal history. He is now retired.

19 Prior to retirement, the applicant what was described by the sentencing judge as 'an excellent work history,'[10] having had a long career at the Victorian Government Titles Office as a civil drafter. As a result of these charges, the applicant lost this job, which he had had for 39 years.

20 The applicant has limited contact with any of his family members. The applicant's parents are both now deceased and only two of his four siblings are still alive. The applicant has little contact with his siblings. The applicant has had two failed intimate relationships. One of those relationships produced two sons, who are now adults. They no longer have a relationship with the applicant, as a result of him being charged with these offences.

21 The applicant has a number of health issues and his overall health is quite poor. He has been diagnosed with sarcoidosis (inflammation of the lungs), coronary artery disease and has had a history of anxiety and depression.

22 After describing the circumstances of the offending and victim impact statement, the sentencing judge observed that the purported consent of the victim could not be relied upon as a mitigating factor. She said:

[C]onsent is not a defence to the offence of engaging in sexual intercourse with a child outside Australia or engaging in sexual activity (other than sexual intercourse) with a child outside Australia.

The fact that the victim purports to accept responsibility for what has occurred is not a relevant mitigating factor. This is based on the absolute prohibition on sexual activity with a child being founded on a presumption of harm. The prohibition is intended to protect children from the harm presumed to be caused by premature sexual activity, that is, activity before the age when a child can give meaningful consent.

The Court of Appeal in the matter of Clarkson v R; EJA v R concluded that a child's consent can never, of itself, be a mitigating factor. Proof that the child consented is the beginning, rather than the end, of the sentencing court's inquiries. In assessing the gravity of the offence and the offender's culpability, it is said that the court's attention will be directed not at consent as such but at the circumstances in which consent came to be given.[11]

On the basis of all the material before the court, I am satisfied that you were in an intimate relationship of a sexual kind with the victim. There was a significant age difference and/or power imbalance between yourself and the victim. I accept that initially the relationship was founded on genuine affection rather than predatory behaviour but nonetheless I still consider the fact that you went ahead and had a sexual relationship with the victim knowing that she was underage and knowing that such actions were wrong means that your culpability is high. You were an older and more mature man who should have been cognisant of the potential for harm upon the child as a consequence of your illicit sexual relationship. The victim was only 14 and 2 months[12] at the time of the commencement of the sexual activity and you were almost 60.[13]

24 The sentencing judge rejected a submission made on behalf the applicant that the presumption of harm in respect of LNC had been rebutted. Applying the principles[14] in Clarkson v The Queen[15], she concluded that:

I do not consider that the victim impact statement on its own in this case displaces the presumption of harm to the victim. I have approached this matter on the basis that the victim is a vulnerable child who had a history of sexual abuse and associated mental health issues, who was highly sexualised, working in a massage parlour from a very young age. I consider her to be a vulnerable victim who has been exploited by your actions. I do not consider that the presumption of harm has been rebutted.[16]

25 Two reports concerning the applicant's mental health were tendered on behalf of the applicant at his plea hearing. A report of consultant clinical psychologist Mr Bernard Healey dated 29 March 2016 and a report of forensic psychologist Mr Ian Joblin dated 19 June 2016. Mr Healey had the opportunity of reviewing the applicant over a period of months. The sentencing judge also requested that the Victorian Institute of Forensic Mental Health ('Forensicare') conduct a further assessment of the applicant. A report was prepared by principal consultant psychologist, Mr Michael Daffern dated 10 August 2016.

26 The sentencing judge had regard to all three reports in sentencing the applicant. In his reasons, Santamaria JA has carefully summarised the findings of each of the mental health professionals and we repeat those now:

Mr Healey's report set out the following findings:

(a) in the past, the applicant had experienced two failed significant intimate relationships;

(b) the applicant was a passive and naïve man who was subservient in his previous relationships and, when those relationships broke down, became even more submissive and less assertive for the sake of retaining a relationship with his two sons;

(c) the applicant was anxious, nervous and isolated;

(d) based on a Static-99 assessment tool for adult male sexual offenders, the applicant is at a low risk of further sexual offending - a finding that was based on the nature of the offending for which he had been charged, bearing in mind that there were no prior offences of this nature and no offences since;

(e) throughout his treatment, the applicant was particularly self-berating and ashamed of his conduct; and

(f) the applicant acknowledged the wrongfulness of his conduct and understood that he faced the prospect of loss of liberty, which has caused him a great of deal of anxiety and concern about his ability to cope within the prison system given his significant health problems and need for continuing specialist care.

Mr Joblin's report set out the following findings:

(a) the applicant had initially presented with serious psychological issues;

(b) the applicant had a gross tremor and high level of anxiety, leading Mr Joblin to believe that the applicant was clinically depressed;

(c) the applicant's strong attraction to the victim was totally consistent with his disordered personality, and he had a pervasive pattern of social and interpersonal deficits;

(d) the applicant was a man with few close friends and suffered from excessive social anxiety, which was relieved when he went overseas and particularly when he was with [LNC];

(e) the present offending has a strong psychological component, and the applicant's relationship with [LNC] became meaningful to him because of the breakdown of his past relationships and his feelings of rejection - an issue which is pivotal and which cannot be underestimated in terms of the impact it has had on him;

(f) it was considered that incarceration would be 'totally destructive' to the applicant; and

(g) the applicant was gratified by the relationship which he had formed, and the end of that relationship had been extremely distressing for him due to his placing a great deal of emotional involvement into it, which was consistent with his personality deficits.

....

Mr Daffern's report dealt extensively with the applicant's history of depression over the past 15 years, for which he received medical treatment. The report:

(a) postulated that it was possible that the applicant was depressed at the time of the offending and that it was likely that his mood improved when he spent time with [LNC] or thought about her;

(b) considered that the depression, whilst operative at the time, did not have a significant direct impact on the applicant's mental capacity, but his low mood may well have led to him seeking intimacy and sexual satisfaction;

(c) considered that the applicant's depression may result in a term of imprisonment being more difficult for him, although it was not considered that there was a serious risk that imprisonment would have a significant adverse long-term impact on the applicant's mental health;

(d) noted the difficulties that the applicant had already experienced following the charging of these offences: the applicant had been 'rejected' by his sons and taunted by other prisoners;

(e) recommended that the applicant participate in a sex offenders treatment program and considered, albeit tentatively, that the applicant's risk of reoffending, including contact offences, was relatively low; and

(f) recommended that the applicant be further assessed of his risk of reoffending following sentencing.[17]

27 The sentencing judge took into account the applicant's 'fragile psychological condition' as providing context for the offending.[18]

28 In view of the applicant's long term depression and anxiety and well documented physical conditions, she said:

I accept that jail will be more onerous for you having regard to your poor health. There is also a risk that your condition may be impacted upon by reason of imprisonment.[19]

29 The sentencing judge took into account the applicant's early plea, accepting that there was a real utilitarian value and also accepting that it was indicative of 'genuine remorse.'[20]

30 The sentencing judge further took into account the applicant's cooperation with the authorities[21] having regard to the principles expressed in the decision of R v Ellis.[22]

31 The sentencing judge concluded that, with appropriate treatment, the applicant's risk of re-offending was low.[23] She considered there to be a real need for the applicant to undergo appropriate treatment and noted that he has expressed a willingness to undertake a sex offenders treatment program.[24]

32 The sentencing judge took into account the applicant's prospects of rehabilitation:

Given your insight into your offending, I consider that you do have good prospects of rehabilitation. I have had regard to the impact of the offending on you and accept that following the laying of the charges, the impact has been great and you lost your job of 39 years and you no longer have meaningful relationships with your two sons and you are a very sad, lonely and isolated person.[25]

33 In respect of the objective gravity of the offending in charges 3 and 4, the child pornography charges, the sentencing judge assessed that the offending was at the lower end of the range of this offending, taking into account the number of images and what was depicted.[26]

34 In respect of the overall gravity of the offending, the sentencing judge said:

Ultimately, in formulating the appropriate sentence, I have had regard to the many factors that I must take into account when sentencing you pursuant to the factors set out in s 16A(1) and (2) Crimes Act 1914 (Cth) and s 5 of the Sentencing Act 1991.

I have come to the conclusion that a term of imprisonment to be served is the most appropriate disposition having regard to the gravity of the offending and I consider a non-custodial order such as that proposed, a Community Correction Order is not appropriate punishment.

In determining the sentence to be passed in respect to the Commonwealth charges I must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offending. In respect to the State charges I must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.

I have considered that there is an overlap between Charges 1 and 2 and the production of the images that were the subject of Charge 3 and it does exhibit a course of conduct. I will proceed to sentence in a way without any cumulation but nonetheless I have had regard to the principles of totality. In relation to the final charge, Charge 4, I consider that that does represent different criminal behaviour and some cumulation is warranted.

Mr Merrill in sentencing you, I must impose just punishment and on behalf of the community formally denounce your behaviour. General deterrence is of real importance in cases of this nature. People must be deterred from going overseas and having sex with underaged [sic] children, and also people must be deterred from possessing child pornography.

Having regard to your post-offence conduct, I consider that the need for specific deterrence is not as great for you now given that you do understand what you did was wrong and you have indicated your willingness to undertake Sex Offenders Treatment Program. It is my recommendation to enhance your rehabilitation prospects and to provide for the protection of the community in the future, that the correctional authorities arrange for you to participate in such a program as has been recommended by both Mr Healey and Mr Daffern.[27]

35 There is a single ground of appeal, namely that the sentences imposed on charges 1 and 2 are manifestly excessive.

36 The applicant submits the sentencing judge failed to appropriately take into account of several 'powerful' factors which ought to have limited the severity of the sentences imposed on charges 1 and 2. He identified the following factors in mitigation:

(a) the offences involved neither predatory behaviour, given LNC's persistent encouragement and initiation of sexual intercourse, nor a breach of trust;

(b) the applicant was in a fragile psychological state when he committed the offences and, as a result, he would experience special hardship in prison;

(c) the offences were first disclosed to the authorities by the applicant, and his admissions comprised the evidence against him;

(d) the applicant's plea of guilty was entered at the earliest opportunity and was both indicative of genuine remorse and of real utility; and

(e) the applicant had no criminal history and was a low risk of reoffending.

37 The applicant contends that the length of the sentences on charges 1 and 2 indicates that the sentencing judge had insufficient regard to these factors in mitigation, in particular to the factor identified in (c), known as the Ellis discount.

38 No specific error is alleged. Rather these considerations are offered as matters that, had they been properly considered, would not have resulted in a manifestly excessive sentence.

39 The respondent submits that the sentences imposed on charges 1 and 2 are not excessive given the objective seriousness of the offending, the primacy to be given to general deterrence and the need to reflect the principles of punishment and denunciation. The respondent contends that the sentencing judge appropriately balanced the factors in mitigation advanced by the applicant, with the serious facts and circumstances of this offending.

40 The respondent points particularly to the gravity of this offending, which it contends is very serious in view of a number of factors, namely: the significant maximum penalties available for each charge, the fact that maximum penalties for charges 1 and 2 increased in the years leading up to the offending, the age disparity between the victim and the applicant, the young age of the victim when a sexual relationship commenced, the ongoing nature of the sexual relationship and the knowledge that the applicant had regarding the victim's personal history involving sexual abuse and exploitation.

41 An offender has a right to a significant discount where, he or she voluntarily provides, by way of admissions, proof of an offence which the prosecution is unlikely to have otherwise established.[28] Even where an offence or some offences are 'known', the discount applies where the confession involves the revelation of additional offences.[29] Likewise, the discount applies even where the offence is in one sense 'known ' but where, in reality, it would have been impossible or difficult to prove without the confession.[30]

42 The principle rests upon the policy of the criminal law to encourage guilty persons to disclose both the fact of an offence having been committed and his or her guilt of that offence.[31] While it is not a rule to be 'quantitatively, rigidly or mechanically applied',[32] the degree of leniency varies according to the degree of likelihood of that guilt being discovered by investigators,[33] and ultimately established by the prosecution. [34]

43 We would add that the practical difficulties of detection of this kind of overseas offending are well recognized.[35] This requires emphasis to be given to general deterrence[36], but it also highlights the utility in offenders confessing to offences which might otherwise be difficult to prove.

44 As to the application of the Ellis discount the sentencing judge said:

In addition, you were fully co-operative with the authorities at the time when you were first spoken to at the airport and during the formal recorded interview. You gave full and frank answers and comprehensively detailed the nature of your intimate relationship with the victim. You essentially told police all the information which comprises the evidence the subject of the first three charges on the indictment.

Having regard to the principles expressed in the decision of Ellis, you are entitled to considerable leniency for your confession. This principle rests upon the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and making a confession of guilt of that offence.

This principle has been further followed in many cases such as [Ryan v R, R v Brazel, R v Doran and R v CLP].[37]

45 Her Honour noted that the prosecutor had 'emphasised [the applicant's] high level of cooperation with the authorities and accepted that [the applicant's] confession meant that charges 1 and 2 could be laid.'[38]

46 It is not suggested by the applicant that the sentencing judge's remarks reveal any error in the approach taken by her Honour to the Ellis discount. The applicant accepts that the remarks themselves accurately summarise the relevant principles and the approach to be taken in this case.

47 The complaint rests upon the proposition that the sentence itself does not adequately reflect the level of leniency warranted in this case.

48 Of course, the offending was in one sense 'known'. That is why the authorities apprehended the applicant at the airport. The authorities had the victim's identity and her statement in her visa application that she was in a relationship with the applicant. After conducting a search of the applicant's mobile phone, police also located some suspicious images. The applicant has, therefore volunteered admissions, in circumstances where he has been confronted with some evidence of wrongdoing. Even so, it is fair to say that without the applicant's admissions, in reality, it would have been unlikely, perhaps highly unlikely, that the applicant would ever have been prosecuted.

49 At the election hearing, the applicant sought to make good his argument by contending that the sentences imposed were, absent consideration of the Ellis discount, high. The applicant sought to establish this by referring to sentencing practice, as evidenced by three cases. They were relied upon to show that sentences of the order imposed on the applicant were imposed in cases where there were certain kinds of aggravating features present (but these were absent in the instant case) and conversely where there were an absence of weighty mitigating features (which were present in the instant case). This analysis showed, according to the applicant, that the judge had insufficient regard to the mitigating factors in this case, especially to the Ellis discount.

50 The cases referred to during the appeal were Assheton v The Queen[39], R v ONA[40] and R v Wicks[41]. Santamaria JA helpfully detailed the facts of each of those matters. We now reproduce his Honour's summary of those facts:

In Assheton v The Queen, an offender appealed against a sentence of five years' imprisonment for two offences of engaging in an act of indecency against a child under 16 contrary to s 50BC(1)(a) of the Crimes Act 1914 (Cth). The maximum penalty was 12 years' imprisonment. The applicant was sentenced to three years' imprisonment on the first count and two years' imprisonment on the second count, to be served cumulatively. Neither offence involved penetration. The application was refused. The applicant had pleaded guilty to the two charges which were detected after the applicant was found in possession of video footage of himself engaged in sexual acts with two boys in Bali who were members of a family with which the applicant was friendly. The offending the subject of the first count was not a single incident; it was found to have involved 'involved extensive touching and examination of [the child's] private parts'. The offending the subject of the second count involved was not as intrusive but involved touching in an indecent manner. The applicant appealed against his sentence on the grounds of manifest excess. Malcolm CJ (with whom Murray and Steytler JJ agreed) dismissed the appeal.

In R v ONA, the offender pleaded guilty to two offences under the Crimes Act 1914 (Cth). Count 1 was the offence of committing an act of indecency on a person under 16 while outside Australia (s 50BC(1)) and count 2 was the offence of engaging in sexual intercourse with a person under 16 while outside Australia (s 50BA(1)). The offender had visited Liberia where he commenced a relationship with the mother of the complainant. The first offence took place in Liberia when the complainant was between five and seven years of age. The second offence took place in Thailand. The offender filmed the conduct the subject of each count. The film of the first offence showed the offender washing the complainant's vagina; the film of the second offence showed the offender using his penis to penetrate the outer lips of her vagina. A judge in the County Court sentenced the offender to 18 months' imprisonment on count 1 and five years' imprisonment on count 2. The sentencing judge ordered that the sentence imposed on count 2 commence 12 months after the sentence imposed on count 1, resulting in a total effective sentence of six years. He fixed a non-parole period of four years. The offender appealed against the sentence on various grounds including that the sentence was manifestly excessive. Neave JA (with whom Ashley JA and Mandie AJA agreed) dismissed the appeal.

In R v Wicks, the Crown appealed against a sentence imposed on the respondent for six offences under the Crimes Act 1914 (Cth). The offences were four counts of sexual intercourse with persons under 16 years outside Australia (s 50BA(1)), one count of inducing a person under 16 to committee an act of indecency outside Australia (s 50BD(1)) and one count of inducing a person under the age of 16 years to have sexual intercourse with another person outside Australia (s 50BB(1)). The New South Wales Court of Criminal Appeal (McClellan CJ at CL, Adams and Hoeben JJ) found that a sentence of five years' imprisonment on each of the four charges of offending contrary to s 50BA(1) Crimes Act 1914 (Cth) with a non-parole period of three years was at the lowest end of the range but not such as to warrant intervention. The offending involved four boys aged under 16 over a 10-day period in Thailand. The offender, who was aged 71 at the time of sentence, paid the boys and videotaped sexual interaction with them. For the count of conduct in contravention of s 50BD(1), the offender was sentenced to three years' imprisonment; for the count of conduct in contravention of s 50BB(1), he was sentenced to five years' imprisonment. The total effective sentence was five years' imprisonment with a non-parole period of three years. The Court did not interfere with the sentence but held that the sentencing judge erred in ordering that all of the sentences imposed should be served concurrently without any accumulation. [42]

51 Counsel for the applicant placed particular emphasis upon the fact that the offending in the applicant's case did not involve predatory behaviour (unlike in ONA and Wicks), did not involve a breach of trust (unlike in Assheton and ONA) and did not involve a victim who has, on the evidence, been very seriously harmed (unlike in Assheton and ONA). As to the latter point, the applicant pointed to the fact that the victim stated in her victim impact statement that the offending did not have an emotional, psychological or physical impact on her, and that her situation had improved. We should say that the applicant does not quibble with the sentencing judge's finding that the applicant had not rebutted the presumption of harm in respect of the victim. As we understand the applicant's argument, he focusses upon the significant comparative harm positively established on the evidence in other cases.

52 True enough, some of the aggravating features present in Assheton, ONA and Wicks were not present in the applicant's offending.[43] On the other hand, in our opinion these points of distinction should not be overstated.

53 It is correct that the applicant's offending did not involve a breach of trust as it is commonly understood in a domestic setting. Nonetheless, the absence of such a feature, so common in a domestic setting, should be viewed as unremarkable in relation to the overseas child sexual tourism industry. Impoverished and prostituted child victims living overseas in environments lacking strong criminal offence and child protection regimes are especially vulnerable to exploitation. Sadly, they are easily accessed in public, on the streets and in a prostitution milieu, without risk of detection. It is partly because of this ease of access that the overseas child sexual tourism industry exists. These children are susceptible to manipulation by promises of money and the perceived prospect of a more economically stable life. The fact is, offenders do not need to acquire a position of trust within an institution, or within a family setting, to facilitate access. Self-evidently, the enactment of extra-territorial child sex offences was aimed, in part, at suppressing the exploitation of children living in such a grim and exposed situation.

54 Further, while it may be accepted that the applicant did not engage in overtly predatory and pre-meditated behaviour, in the sense that he did not go overseas with the intention of securing sexual access to children, in practical terms the outcome was ultimately the same. In the long run, he engaged in sustained sexual exploitation of a highly vulnerable and disadvantaged child, living a miserable life in an overseas country.

55 The applicant met the victim outside a 'massage parlour' where the victim was working. It seems common ground that sexual services were provided at the 'massage parlour'. Knowing the victim's circumstances to be deprived, he cultivated a friendship and allowed a degree of economic dependency to develop upon him. He eventually exploited the situation by ultimately having sex with the victim, knowing that she was under age at the time, even if this did not occur initially.

56 The applicant sustained the relationship of economic dependency and continued to have sex with the victim, repeatedly. We emphasise that charges 1 and 2 were 'rolled up' charges, covering a period of over 10 months. The offending was persistent and took place over five return visits. Neither the penetrations nor the other sexual activity could be described as isolated. As it developed, the offending most definitely involved an element of planning. During the charged period, the applicant would also have had many opportunities to reflect upon the nature of the highly improper sexual relationship and to desist, particularly given that he had to make arrangements to travel overseas each time he wanted to see the victim. It is trite that the period of time over which the offending occurred and whether the offending was part of a course of conduct is relevant to an assessment of its gravity.

57 Next, the fact that a child victim of these extra-territorial offences perceives (as this victim apparently did) that the sexual interaction or relationship might be to their benefit must take into account the realities of their dire social and economic circumstances. It therefore seems to us that it is really not to the point to say that the child victim in a particular case subjectively believed that he or she was better off. This just proves that the offender has taken advantage of the child's dismal state of affairs in the very manner to which these offences are directed. It is an unhappy fact that children who find themselves trapped in such a grim life may well seize an opportunity for escape presented by offenders like the applicant. In our opinion, the fact that the victim perceived her plight to have improved, does not diminish the gravity of offending of this kind.

58 For similar reasons, the fact that the applicant subjectively believed that he was improving the life of the victim does not reduce his moral culpability. Self-justification of this kind can have no place in the sexual offending of children.

59 Moreover, as Santamaria JA observed in his reasons for refusing leave to appeal, the maximum penalties for which the applicant fell to be sentenced are greater than the maximum penalties which applied in relation to the offences in Assheton, ONA and Wicks[44]. The maximum penalties for charges 1 and 2 are now 20 years and 15 years respectively.[45] The sentences imposed in the applicant's case represent only 25 per cent and 20 per cent respectively, of these maximum penalties.

60 We are also conscious that the number of comparable cases is limited. To the extent that the three instances are suggestive of a sentencing practice, they cannot be determinative of the appropriateness of the sentence in question.[46] That must be even more so where the sample of cases is necessarily limited. To focus too much on the aggravating and mitigating features of each case, in comparison with the applicant's case, runs the risk of wrongly treating them as precedents.[47]

61 In our opinion, absent the powerful Ellis mitigating factor, we think it would have been at least open to her Honour to impose demonstrably higher sentences. It is often said that judicial minds might reasonably differ as to the appropriate sentence which should be imposed in any particular case. We certainly allow that this might be one of those cases. However, it is not sufficient for the applicant to persuade this Court that it would, or might, have imposed a lower or different sentence than that determined by the sentencing judge.[48] Manifest excess is a stringent ground which is difficult to make good, and this Court will be astute to enforce the stringency of this test.[49]

62 With these principles in mind, we are ultimately unpersuaded that proper weight has not been given to all the relevant circumstances (including the Ellis discount).[50] When all the circumstances are weighed into the balance, we are not satisfied that the sentences imposed, though stern, were wholly outside the ranges available.[51]

63 Counsel for the respondent submitted, at the election hearing, that an increased prevalence in child sex tourism offences (charges 1 and 2) was a matter relevant to determination of the leave application.

64 Following the hearing, the parties were invited to provide written submissions on this matter. The applicant submitted that no submissions were made below to the sentencing judge on increased prevalence, nor did it form part of the reasons for sentence. In accordance with Haddara v The Queen[52], if a more severe sentence is to be imposed on account of increased prevalence, natural justice requires the parties to have been provided with an opportunity to make submissions.[53] The respondent sought to rely upon the fact that the prosecutor below did in fact make a submission about sentencing on the basis of increased prevalence, although not explicitly. It was submitted that the reference to the Second Reading Speech[54] amounted to a submission below about increased prevalence[56].

65 We agree with the applicant that this point regarding increased prevalence was not raised below. The reference to an increased accessibility of information and travel destinations does not equate to a submission about the prevalence of this offending, nor does it provide a sufficient basis for the sentencing judge to determine prevalence or impose an increased sentence.

66 In the circumstances we have not taken this into account in relation to the disposition of this election.

67 As the applicant's argument was sufficiently arguable to warrant a grant of leave, we would grant the applicant leave to appeal. However, we would dismiss the appeal.

[1] To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

[2] Contrary to s 272.8(1) of the Criminal Code 1995 (Cth).

[3] Contrary to s 272.9(1) of the Criminal Code 1995 (Cth).

[4] Contrary to s 273.5(1) of the Criminal Code 1995 (Cth).

[5] Contrary to s 70(1) of the Crimes Act 1958.

[6] Pursuant to s 315(1) of the Criminal Procedure Act 2009.

[7] Merrill (a pseudonym) v The Queen [2017] VSCA 189 ('Santamaria JA's reasons').

[8] On this appeal, the parties agreed the reference in the sentencing remarks to LNC's age as 14 years and 2 months at the time the sexual relationship commenced was incorrect.

[9] DPP v Elliot Merrill (a pseudonym) [2016] VCC 1215 ('Sentencing remarks') [20]-[21]. The sentencing judge observed that the sample of the images which she viewed in category 1 primarily consisted of young victims posing partially clothed in a sexually explicit manner without a particular focus on the genitals, but there were some that did focus on the genitals.

[11] Ibid [27]-[29] (citation omitted).

[15] Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361 ('Clarkson'). See [52]-[53].

[17] Santamaria JA's reasons [28]-[31].

[22] [1986] 6 NSWLR 603 ('Ellis'), 604 (Street CJ).

[23] Sentencing remarks [50] and [59].

[27] Ibid [78]-[83] (citations omitted).

[28] Ellis [1986] 6 NSWLR 603, 604; R v Doran [2005] VSCA 271 [14]-[15]; Ryan v The Queen (2001) 206 CLR 267 ('Ryan'), 272 [12], 272-73 [15], 295 [93].

[29] Ellis [1986] 6 NSWLR 603, 604; Latina v The Queen [2015] VSCA 102 [17].

[30] JBM v The Queen [2013] VSCA 69, [41]-[48] ('JBM').

[31] Ellis [1986] 6 NSWLR 603, 604.

[32] Ryan (2001) 206 CLR 267_,_ 272-73 [15].

[34] JBM [2013] VSCA 69 [41]-[48].

[35] Kaye v The Queen [2004] WASCA 227 [66].

[37] Sentencing remarks [53]-[56] (citations omitted).

[39] [2002] WASCA 209; (2002) 132 A Crim R 237 ('Assheton').

[40] [2009] VSCA 146; (2009) 24 VR 197 ('ONA').

[41] [2005] NSWCCA 409 ('Wicks').

[42] Santamaria JA's reasons [47]-[49] (citations omitted).

[43] Other features relied upon included that the sexual activity was recorded by the offender (ONA and Wicks), the very young ages of the victims (Assheton and ONA), and the number of victims (Wicks).

[44] The relevant maximum penalties were 12 years' imprisonment and 17 years' imprisonment.

[45] These maximum penalties were increased recently from 12 years' imprisonment (for an offence equivalent to s 272.9) and 17 years' imprisonment (for offences equivalent to s 272.8).

[46] DPP v Dalgleish (a pseudonym) (2017) ALJR 91 1063; DPP v Dalgleish (a pseudonym) [2017] VSCA 360.

[47] For example, DPP v Zhuang (2015) 250 A Crim R 282, 292 [30]; DPP (Cth) v Brown [2017] VSCA 162 [56].

[48] For example, Papachristodoulou v The Queen (2017) 82 MVR 27, 34 [25].

[49] DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 662-63 [127]-[128] (citations omitted).

[50] Clarkson [2011] VSCA 157; (2011) 32 VR 361.

[52] [2016] VSCA 168 ('Haddara').

[53] Haddara [2016] VSCA 168 [68].

[54]55 The Second Reading Speech made in respect of the Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010, concerning the relevant child sex offences (charges 1 and 2).

[56] The prosecutor below quoted from the Second Reading Speech: 'We have a duty to ensure that with overseas travel commonplace and the interest making information about destinations more accessible. Commonwealth laws provide a significant deterrent to abuse and a sound basis for prosecuting offenders.'