Mertell v The King [2022] ACTCA 69

Summary of remarks on sentence

11. In imposing a sentence, the sentencing judge found the following: (a) Actual children were used in the creation of the material and given the age of the victims depicted in the material in the appellant's possession, it is reasonable to infer the victims would have suffered physical harm; (b) The representative sample of material viewed by the Court depicted highly offensive and degrading images of prepubescent and pubescent male and female victims depicted in various sexual acts; (c) There are an estimated 50 to 75 separate child victims in the material; (d) Whilst there was no evidence the material was obtained for sale or further distribution or that the appellant paid for it, these are not mitigating factors and the very possession of child abuse material creates a market for the continued exploitation of children to supply the market; (e) The Appellant was in possession of the material for a substantial period of between 3 and 6½ months; (f) The offending is objectively serious; (g) There is no indication the appellant did not understand the illegality or immorality of his offending; (h) There was no direct causal link between the offending and the appellant's Attention-Deficit Hyperactivity Disorder (ADHD) and Autism Spectrum Disorder (ASD) such as to enliven limbs 1 to 4 of R v Verdins [2007] VSCA 102 (Verdins); 16 VR 269 or Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1: " ... in relation to the length of time the material was possessed or that it affected the accessing of the material such that the offender's conditions materially reduce his moral culpability or displace the primacy of general deterrence for this type of offending"; (i) The appellant's general "obsessive downloading of pornography" was motivated by sexual gratification which he obtained from the material. His downloading of child abuse material was not accidental, inadvertent, the product of hoarding tendencies or due to curiosity; (j) The appellant's prospects of rehabilitation were assessed as 'guarded' given his consistent minimisation of his offending, his failure to acknowledge the seriousness of his offending and to accept responsibility for it and his lack of remorse and empathy for child victims of the offence type.

12. The sentencing judge had regard to the following: (a) Section 16A of the Crimes Act 1914 (Cth) (Crimes Act) which provides that the Court must impose a sentence that is of a severity appropriate in all the circumstances of the offence; (b) Section 17A of the Crimes Act which states that a Court may only impose a sentence of imprisonment if satisfied that imprisonment is the only appropriate sentence; (c) The objective seriousness of the matter and the need for general deterrence; (d) The lack of insight demonstrated by the appellant; (e) The appellant's dual diagnoses of ASD and ADHD not amounting to "exceptional circumstances"; (f) The presumption in subparagraph 20(1)(b)(ii) of the Crimes Act that child sex offenders serve a term of actual imprisonment unless there are exceptional circumstances that justify release immediately was not rebutted by the appellant and the only appropriate sentence was a term of immediate imprisonment.

13. The sentencing judge took into account the various mitigating factors relied on by the appellant, including the fact that his ADHD and ASD may have contributed to the volume of material downloaded and led to behaviours that influenced the commission of the offences, although not significantly reducing his moral culpability for the offending. The sentencing judge gave weight to the appellant's personal background including his estrangement from family, his limited social network, lack of any romantic relationship and his memory of sexual abuse by his father at the age of five. The appellant's lack of prior convictions and a character reference provided on his behalf were given weight in the sentencing synthesis, although it was noted that prior good character is given less weight when sentencing for offences of this type, given the importance of general deterrence as a sentencing objective.

14. The sentencing judge accepted that the appellant being 68 years of age at the time of sentence meant that his health would deteriorate more rapidly in custody, and his diagnoses of ADHD and ASD enlivened limbs five and six of Verdins by making imprisonment more onerous for him and having an adverse effect on his mental health. The sentencing judge gave weight to the appellant's positive employment history, and noted that he had been receiving psychological treatment for his mental conditions and his offending behaviour.

15. The appellant was given a 25% discount in sentence to reflect his early plea of guilty.

16. As there was no challenge by either party to any of her Honour’s findings, the court adopts those factual findings for the purposes of resentence.

Appeal grounds

17. Given the concession by the prosecution is it unnecessary to dwell on the errors in the sentence imposed. That said, three observations ought to be made.

18. First, the totality principle requires a court, in sentencing an offender for multiple offences, to ensure that the aggregate term it imposes is "a just and appropriate measure of the total criminality involved": Postiglione v The Queen [1997] 189 CLR 295 at [304]. The total effective sentence and non-parole period required to be served must accurately reflect the overall or total criminality comprised in the totality of offences: Pearce v The Queen [1998] 194 CLR 610; Nyugen v The Queen [2016] HCA 17; 256 CLR 656 at [64]. The sentence must take into account an offender's subjective mitigating factors and must not be excessive or "crushing": Mill v The Queen (1988) 166 CLR 59. The error arose in this case because the sentencing judge made the sentences on each offence in counts 1 to 5 totally cumulative on each other in factual circumstances in which that was not warranted. It was also accepted that there was excessive accumulation between counts 6, 7, 8 and 9. The obvious overlap in the offending was not taken into account. It is important to recall that although s 19(5) of the Crimes Act creates a presumption in favour of accumulation in respect to offences of this nature, it is not mandated. Section 19(6) provides that presumption does not apply if the court is satisfied that in imposing the sentence in a different manner would still result in sentences that are of the severity appropriate in the circumstances.

19. Second, as a result of the conclusion above, the sentence imposed was, in the circumstances of this case, necessarily manifestly excessive.

20. Third, as can be seen from the facts recited above, nine separate offences were charged. As explained, seven of those offences being counts 1 to 6 and 8, relate to material found on the same occasion, but stored on seven different devices. The remaining two offences, counts 7 and 9, relate to using a carriage service to access child abuse material. Although the charging of offences is entirely within the discretion of the prosecution, the fact that there were nine separate counts on these facts resulted in a sentencing process of more complexity than otherwise might have been the case. The files the subject of those charges are also the subject of possession charges. Although it may be accepted that the fact material was found on seven different devices may affect the seriousness of the offending, there does not appear to be any other distinguishing features between the counts (apart from the number of files). It may be observed that a charge of possessing the material and a charge for accessing the material would have permitted appropriate sentences to be imposed, reflecting the gravity of the offending, without the complexity that arose from nine offences with issues of accumulation and concurrency required to be considered. That approach avoids the artificiality that necessarily arises in structuring the sentences in relation to the 7 counts of possession which all occurred at the same time, in a manner to ensure that the severity of the offending conduct is reflected in the overall sentence imposed. The sentence on the counts relating to accessing are recognised as separate and some element of accumulation with the possession charges is appropriate: see for example: James v R [2009] NSWCCA 62 at [16]; R v Porte [2015] NSWCCA 174 at [157].

Resentence

21. It is the duty of the Court of Appeal to exercise the sentencing discretion afresh.

22. As to objective seriousness the prosecution pointed to the following relevant matters: (a) The appellant is to be sentenced for nine separate offences relating to accessing or possessing child abuse material. (b) The maximum penalty for each charge is 15 years imprisonment. (c) Over a lengthy period between 23 June 2020 and 13 January 2021, the appellant possessed 513 child abuse material files (which included 56 duplicate files). (d) The child abuse material was stored on seven different devices. (e) Many separate children were depicted in the material. (f) Many of the child abuse images and videos were highly depraved featuring sexually penetrative activity between adults and children.

23. The age of the appellant and the requirement for rehabilitation are also relevant sentencing factors. It is noted that prospects of rehabilitation were assessed as guarded. We note also the findings of the appellant’s failure to acknowledge the seriousness of the offending, to accept responsibility for it, and the lack of remorse and empathy for child victims.

24. The appellant chose not to put any new material before the Court relevant to the resentencing.

25. At the appeal hearing both counsel for the appellant and the prosecution submitted that it would not be outside the range of appropriate sentencing dispositions to impose an aggregate sentence of three years imprisonment or lower with a recognisance release order. The appellant submitted that the recognisance release order ought to be no more than the time already served, which was just over 8 months imprisonment. The parties submitted that an aggregate sentence was appropriate, with the prosecution submitting that this could be done pursuant to s 4K(4) of the Crimes Act.

26. After the appeal hearing, the Prosecution forwarded a table of comparable cases which included the following: (a) In Peters v R [2018] NSWCCA 126, the NSW Court of Criminal Appeal upheld an appeal by the offender on the basis of errors regarding both the utilitarian value of the guilty plea, and totality. The offender was initially sentenced to 18 months’ imprisonment with release after nine months for the charge of possess child abuse material (maximum penalty 10 years), and two years’ imprisonment to be released after nine months for the charge of use carriage service to access child pornography material (maximum penalty 15 years). The offender was originally sentenced to a total effective sentence of two years and nine months’ imprisonment with release after 18 months. The Court resentenced the offender to a total effective sentence of two years and four months, with release after 15 months. The offender had no prior convictions. The offender was assessed as having a low risk of reoffending, had displayed remorse, and had the support of family. The sentencing judge noted the offender’s good character but stated that it could be afforded little weight in such a case. (b) In DPP (Cth) & DPP v Garside [2016] VSCA 74, a prosecution appeal, the Victorian Court of Appeal held that the sentence of a Community Corrections Order (ICO equivalent) for a period of four years was manifestly inadequate, however the Court did not proceed to resentence and exercised the residual discretion not to intervene. The offender had accessed and possessed 6,018 images and videos, with 5,748 classified as category 1 (no sexual activity). The charged period covered eight months. The offender had no criminal history and had the support of family. The offender had been complying with his Community Corrections Order and had taken significant steps towards his rehabilitation. (c) R v Porte [2015] NSWCCA 174 was an appeal by the prosecution. The offender was originally sentenced to 12 months’ imprisonment for the charge of using a carriage service to access child pornography material, and two years and six months’ imprisonment for the charge of possess child abuse material. The offender possessed 34, 143 items of child abuse material (27,729 classified as category 1). The offender was 49 years of age at the time of sentence and suffered from significant spinal degeneration requiring surgery. The Court upheld the manifest inadequacy appeal, finding that the only sentences reasonably open to the sentencing judge were full-time sentences of imprisonment. The responded was resentenced to a total effective sentence of two years and nine months, with a minimum term of one year and 6 months (noting that the offender was also sentenced for a charge of possession of a prohibited weapon). The Court noted in particular that although categories 1 to 5 on the CETS scale involve escalating gravity of the conduct depicted, Category 1 material is nonetheless capable of possessing significant gravity. (d) In DPP (Cth) v Zarb [2014] VSCA 347, a prosecution appeal, the offender was initially sentenced in the District Court to a total effective sentence of three years and three months to be served by way of a Community Corrections Order, with a condition of 150 hours of unpaid community work over the period of the order. The Court upheld the appeal and resentenced the offender to three months’ imprisonment for accessing child pornography, and two years’ imprisonment to be served by way of a Community Corrections Order for two charges of transmitting child pornography, with the CCO to commence after three months’ actual imprisonment. The Court held that the original sentence was manifestly inadequate, finding that the sentencing judge failed to take into account the seriousness of the respondent’s offending, and specific and general deterrence, and that the sentence did not fit within the range available to the sentencing judge. (e) In R v Sykes [2009] QCA 267, the Queensland Court of Appeal dismissed an appeal by the offender on the basis of manifest excess for an offender sentenced as follows: 15 months’ imprisonment for the charge of use carriage service to access child pornography, with release after six months (maximum penalty 10 years), and 12 months’ imprisonment with release after four months for a charge of knowingly possess child exploitation material (maximum penalty five years’ imprisonment). The sentences were imposed to be served wholly concurrently, resulting in a total of six months’ imprisonment. The offender was 28 years old, had no criminal history, had lost his job, family, had suffered public humiliation and had to relocate as a result. The offender cooperated with authorities and had an excellent work history.

27. The utility of these comparable cases was correctly discussed in the primary judgment at [60]. Consistency of sentencing refers to consistency in the application of relevant legal principles rather than numerical equivalence: Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 at [40]-[41]: Hili v The Queen [2010] HCA 45; 242 CLR 520 at [18].

28. At the appeal hearing, the appellant referred to the following case: (a) In R v Cusack [2021] ACTSC 75, the offender was sentenced to two periods of nine months’ imprisonment (reduced from 12 months) for two counts of using a carriage service to access child abuse material, and nine months imprisonment (reduced from 12 months) for one count of possessing or controlling child abuse material. The period of imprisonment was suspended after two months on condition that the offender enter into a Recognizance Release Order in the sum of $1,000, that the offender be of good behaviour for a period of 18 months, and on the further condition that upon release from full time custody the offender resume psychological treatment. The sentencing judge did not find that the case was exceptional to warrant an ICO. His Honour took into account the opinion of a treating psychologist that the offender was suffering from severe depression which compromised his judgment, and was at risk of suicide, and that the offender was of otherwise good character and was striving to rehabilitate himself and had demonstrated real remorse.

29. General deterrence is a primary sentencing consideration for offending involving child pornography: R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29 (Gent) at [65], [66], [99]; R v De Leeuw [2015] NSWCCA 183 at [72]. This offending is objectively very serious. There were hundreds of files, and although for personal use, there were many separate children depicted in the material, with many of the images being highly depraved featuring sexually penetrative activity between adults and children. The appellant was motivated by sexual gratification which he obtained from the material. The circumstances of this case are such that general deterrence must play a significant role. The Court accepts the findings by the sentencing judge as to the subjective features of the appellant but, given the importance of general deterrence, in this case, those features are relatively given less weight: see for example, Gent at [66].

30. The Court took into account all relevant matters as set out earlier at paragraphs [5]- [14], along with the objective seriousness of the offences, the maximum penalties, comparable cases, the principles of totality, and subjective matters. The court determined, having regard to these matters that a total sentence of 30 months imprisonment was appropriate.

31. The prosecution relied on s 4K(4) of the Crimes Act, which allows an aggregate sentence to be imposed, and the orders pronounced on 18 November 2022 proceeded on that basis. However, on further reflection it is clear that s 4K(4) does not apply in relation to these offences, being on indictment: see Putland v The Queen [2004] HCA 8; 218 CLR 174. In determining the aggregate sentence imposed, the Court was required nonetheless, to consider inter alia, the appropriate individual sentences, together with the principles of totality, as explained in Pearce. The Court did so. Consequently, given that s 4K(4) does not apply, we now impose those sentences individually.

32. We are satisfied that the so-called “slip rule” embodied in r 6906 of the Court Procedures Rules 2006 (ACT) allows a judgment to be amended so as to correct an error of law, at least if the problem is identified promptly, and where the alternative is for an erroneous judgment to remain uncorrected except by appeal (see eg Andrikis v Nominal Defendant [2004] ACTSC 43; 190 FLR 136 at [10]). Both parties consented to the Court proceeding in this way.

33. We were mindful that the greatest sentence imposed by the primary judge was nine months imprisonment, and therefore did not impose sentences above that figure. It should not be taken that longer sentences were not more appropriate.

34. The following involves a 25% discount for the plea of guilty on the sentence for each offence.

35. In relation to counts 1, 5, and 8 a sentence of nine months is imposed for each offence. In relation to count 2, a sentence of six months’ imprisonment is imposed. In relation to count 3, a sentence of two months is imposed. On count 4, a sentence of five months is imposed. On count 6, a sentence of two months is imposed. On count 7, a sentence of three months is imposed. On count 9, a sentence of eight months is imposed.

36. In relation to the offences of possession, being counts 1 to 6 and 8, because of the manner in which the offences were charged, the determination of currency/accumulation is rather artificial. The aggregate sentence must reflect, inter alia, the fact that there were seven different devices, the gravity of the conduct displayed on the files, is the number of files (over 500) and the period of time over which the offence were committed. It was estimated that there were between 50-75 separate child victims

37. As a result, in relation to counts 1, 5 and 8, the sentences are accumulated. The sentences in respect to counts 2, 3, 4, and 6 are to be served concurrently, and concurrently with the sentence of count 1.

38. The sentences on counts 7 and 9 are to be served concurrently. Those sentences are to commence after 22 months. The overall sentence is 30 months.

39. As the sentence is less than 3 years imprisonment, it is necessary to impose a recognisance release order: s 19AC(1), and s 20 of the Crimes Act, unless it exercises its discretion not to do so: s 19AC(4). A single recognizance release order is to be imposed: s 19AC(1)(c).

40. It is appropriate to recall that the considerations taken into account at this stage are the same as those applicable to fixing the sentence of imprisonment, however the weight attached to them may differ due to the different purposes to be served. In determining what period is required to be served, the objective gravity of the offending and general deterrence must also be taken into account, as well as the interests of the community which imprisonment is designed to serve. We did not accept the appellant’s submission that the time served is an appropriate period.

41. Rather, it was the Court’s view that the appellant should be released after serving 12 months in custody, on the conditions specified in the order.

42. It follows that a single recognisance release order is to be imposed, to commence after the offender has served 12 months of his sentence.

Orders

43. The orders of 18 November 2022 are varied to read as follows: (1) The appeal is allowed in respect of the following charges: CC2021/7245, CC2021/7246, CC2021/7247, CC2021/814, CC2021/7250, CC2021/7248, CC2021/7249, CC2021/815, and CC2021/816. (2) The appellant is resentenced as follows: (1) In respect of count 1 (CC2021/7245) the offender is sentenced to nine months imprisonment commencing on 4 March 2022. (2) In respect of count 2 (CC2021/7246) the offender is sentenced to six months imprisonment commencing on 4 March 2022. (3) In respect of count 3 (CC2021/7247) the offender is sentenced to two months imprisonment commencing on 4 March 2022. (4) In respect of count 4 (CC2021/814) the offender is sentenced to five months imprisonment commencing on 4 March 2022. (5) In respect of count 5 (CC2021/7250) the offender is sentenced to nine months imprisonment, commencing on 4 December 2022. (6) In respect of count 6 (CC2021/7248) the offender is sentenced to two months imprisonment commencing on 4 March 2022. (7) In respect of count 7 (CC2021/7249) the offender is sentenced to three months imprisonment commencing on 4 January 2024. (8) In respect of count 8 (CC2021/815) the offender is sentenced to nine months imprisonment commencing on 4 September 2023. (9) In respect of count 9 (CC2021/816) the offender is sentenced to eight months imprisonment commencing on 4 January 2024. (10) pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), the appellant is to be released after serving 12 months of the term of imprisonment upon him entering into a recognizance in the sum of $1000 to comply with conditions that he: a) be of good behaviour for a period of two years; and b) be subject to the supervision of the Commissioner of ACT Corrective Services or his or her delegate for the period of two years; and c) obey all reasonable directions of the probation officer, appointed by ACT Corrective Services, and; d) not travel interstate or overseas without the written permission of the probation officer and e) undertake such treatment or rehabilitation programs that the probation officer reasonably directs; and f) report to ACT Corrective Services located at Level 1, 249 London Circuit, Canberra City, 2601 by 4pm within two clear working days of release from custody; and g) report to, and receive visits from, an ACT Corrective Services officer or officers; and h) notify an officer at the specified ACT Corrective Services office of any change of address or employment within two clear working days after the change

I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: