Moore v R

Court of Criminal Appeal (NSW)|2018-02-07|Before: Beazley P, Garling J, Hidden AJ

Solicitors: Murphy Lyons Lawyers (Applicant) Office of the Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2015/152969 Decision under appeal Court or tribunal: District Court Date of Decision: 2 June 2016 Before: Syme DCJ File Number(s): 2015/152969

[This headnote is not to be read as part of the judgment] In March 2015, the applicant, then 54 years old, was identified by the police as being involved in communicating with young males online. The police commenced a covert investigation using the fictitious identity of a 14 year old male. After the fictitious identity 'friended' the applicant on Facebook, the applicant and the fictitious identity engaged in sexually explicit communications over various forms of media for approximately 10 weeks. In May, the applicant organised to meet the fictitious identity, and was arrested at the planned meeting place. On that day, a search warrant was executed at the applicant's home. The police located images and videos containing child abuse material on the applicant's computer and an external hard disk drive. The applicant was charged with committing two offences: first, using a carriage service to procure a person under 16 years of age to engage in sexual activity contrary to the Criminal Code (Cth), s 474.26(1); and secondly, possessing child abuse material contrary to the Crimes Act 1900 (NSW), s 91H(2). The applicant pleaded guilty to both offences in the Local Court. The applicant was sentenced to 4 years imprisonment with a non-parole period of 2 years, 6 months commencing on 8 September 2016 in respect of the s 474.26(1) offence, and 2 years imprisonment commencing on 8 March 2016 in respect of the s 91H(2) offence. The only issue on appeal was whether the sentences imposed were manifestly excessive. Beazley P (Garling J and Hidden AJ agreeing) held, refusing leave to appeal against sentence: (i) Having regard to the evidence, the sentencing judge did not err in finding that the applicant showed "little insight into the consequences of his offending": [19]-[26]. R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353, referred to. (ii) The sentencing judge gave due consideration and assigned due weight to the applicant's psychiatric history: [29]. (iii) No error has been demonstrated in the sentencing judge's approach to sentencing: [31]-[32]. Obeid v R (2017) 350 ALR 103; [2017] NSWCCA 221, referred to.

Judgment

BEAZLEY P: On 2 March 2016, the applicant pleaded guilty in the Local Court to the following two offences: first, using a carriage service to procure a person under 16 years of age to engage in sexual activity contrary to the Criminal Code (Cth), s 474.26(1); and secondly, possessing child abuse material contrary to the Crimes Act 1900 (NSW), s 91H(2). The offences carry a maximum penalty of 15 years imprisonment and 10 years imprisonment respectively.
On 2 June 2016 (and as corrected on 21 October 2016), the applicant was sentenced to 4 years imprisonment with a non-parole period of 2 years, 6 months commencing on 8 September 2016 in respect of the s 474.26(1) offence, and 2 years imprisonment commencing on 8 March 2016 in respect of the s 91H(2) offence.
In arriving at these sentences, the sentencing judge took into account the utilitarian value of the applicant's early pleas of guilty, allowing a discount of 25 per cent for both offences.
The applicant seeks leave to appeal from the sentences imposed by the sentencing judge on the ground that they are manifestly excessive. For the reasons which follow, I consider that leave to appeal should be refused.
On the sentence hearing, the Crown adduced an agreed statement of facts, the applicant's criminal history, a pre-sentence report, a sentencing schedule and a sample book of images. The applicant, who was legally represented at the sentence hearing, did not give evidence. However, a report of his psychiatrist, Dr Slowiaczek, three references and sentencing statistics were adduced as evidence in his case.

The facts

The following recitation of the facts is taken from the agreed statement of facts tendered at the sentencing hearing.

The s 474.26(1) offence

In March 2015, the police identified the applicant, then 54 years old, as being involved in communicating with and befriending young males online. The police commenced a covert investigation using the fictitious identity of a 14 year old male. After the fictitious identity 'friended' the applicant on Facebook, the applicant and the fictitious identity engaged in sexually explicit communications over various forms of media for approximately 10 weeks.
During the course of these communications, the applicant described anticipated sexual acts, such as fellatio, anal intercourse and ejaculation, in explicit detail. On one occasion, he sent an image of a naked pubescent male to the fictitious identity. The applicant also activated his web cam during Skype communications and masturbated while the fictitious identity was online. The applicant urged the need for secrecy and caution. This was relevant as the fictitious identity was 14 years of age.
On or about 8 May 2015, the applicant sent the fictitious identity a prepaid mobile phone. The phone was later used to organise a meeting at Caves Beach on 22 May 2015. The applicant was arrested at the planned meeting place.

The s 91H(2) offence

On 22 May 2015, a search warrant was executed at the applicant's home. The police located child abuse material on the applicant's computer and an external hard disk drive.
The devices were analysed using forensic software, which randomly samples the files and estimates the number of offending files with an acceptable margin of error. The software calculated that the applicant's computer contained between 284 and 714 images and 31 videos containing child abuse material, and the external hard disk drive contained between 1,238 and 2,776 images and between 28 and 52 videos containing such material. The images and videos identified were then classified according to the Child Exploitation Tracking System scale as falling within categories 1 to 4. The material thus ranged from material that depicted children with no sexual activity, although being sexually suggestive or sexual in nature (category 1), to penetrative sexual activity involving a child or children or both a child or children and adults (category 4).

The sentencing proceedings

The sentencing judge first considered the objective seriousness of the offences. Her Honour stated that the applicant's conduct with respect to the s 474.26(1) offence was a "serious example" of an offence of its kind, although there were "no aggravating matters outside the detail of the charged offence". Her Honour considered, in particular, the assumed age of the fictitious identity and the detailed and explicit nature of the communications. Her Honour observed that the communications disclosed that the applicant had "a thorough understanding … of the sheer criminality of his proposed behaviour", noting that the fact that the recipient was a fictitious identity did not diminish the objective seriousness of the offence.
In respect of the s 91H(2) offence, the sentencing judge stated that the offence was of "moderate seriousness" for an offence of its kind, having regard to the number and nature of the images, the absence of concealment, the number of children involved and their approximate ages, and the absence of any issues relating to the profit or sale of the images. Her Honour acknowledged that the applicant was only to be sentenced for possessing child abuse material, in the absence of any evidence of its production or dissemination.
The sentencing judge then considered the applicant's subjective circumstances. First, her Honour noted that the applicant has a "complex psychiatric background" and suffers from bipolar disorder. At the time the applicant committed the offences, he was not complying with his medication regime or with the recommendations of his psychiatrist, Dr Slowiaczek. Her Honour accepted the opinion of Dr Slowiaczek that while the applicant was in a manic episode at the time he committed the offences, his mental illness "did not disturb his thinking so severely that he was unable to know the nature and quality of his actions". Accordingly, her Honour noted that while the applicant's mental illness reduced his moral culpability to some extent, and supported a finding of "special circumstances", it enhanced concerns for his future non-compliance with medical treatment and the protection of the community.
Secondly, the applicant has a criminal history, including prior convictions for indecent assault of a child under 16 years of age by a person in authority. The sentencing judge held that this was of "little significance". However, her Honour noted that the applicant was not a person of good character.
The sentencing judge considered the applicant's prospects of rehabilitation and reoffending. Her Honour acknowledged that the applicant had community and family support, and that he was willing to undertake a sex offender treatment program. However, her Honour concluded that the applicant's prospects of rehabilitation were "unknown", noting that he had been assessed by forensic services to have a medium to high risk of reoffending.
Further, despite the applicant's early pleas of guilty, the sentencing judge did not find that he was remorseful, stating that he showed "little insight into the consequences of his offending" and a "callous disregard" toward the children involved.
In light of the applicant's apparent lack of insight into the seriousness of his offending, the sentencing judge considered that specific deterrence was a "real consideration". Her Honour further observed that "the important consideration for offences of this nature … [is] general deterrence", but that in the applicant's case, that was ameliorated by the applicant's mental illness. Accordingly, her Honour noted that the weight to be given to general deterrence was less important.

Submissions and consideration

The applicant's solicitor advanced three essential arguments in support of the application for leave to appeal. First, he contended that her Honour's finding as to the applicant's lack of insight into his offending conduct bore some unfairness to the applicant, because he had not been asked directly what his attitude was to the victims of the offences. He submitted that when that question was put to the applicant by the author of the pre-sentence report, he was able to appreciate the damage his actions would cause the victims.
That is not a completely accurate reflection of the pre-sentence report. The author of the report noted that: "When [the applicant] did discuss the victims he demonstrated a solid level of insight to the effects his offending behaviour may have had and was able to verbalise some of the 'damage' that his actions may have caused."
However, the author also noted that: "When discussing the impact of his actions on others [the applicant] appeared very self focused and it was only through challenging and prompting that he was able to detail other parties who may have been affected."
The author observed that the applicant, when discussing the arrangements he made to meet the presumed victim, "appeared to minimise the seriousness somewhat". The author also observed that throughout the discussion with the applicant, he "presented with a tendency to attribute some of the blame for his actions to his mental health".
There was annexed to the pre-sentence report a report prepared by Ms Baron, a provisional psychologist. Ms Baron's report similarly noted that the applicant "did not appear to see that these behaviours [were] inappropriate and focused on the negative impact these charges have had on his life". Ms Baron concluded that while the applicant "takes some responsibility for his offending behaviour", he "minimises the behaviour".
The pre-sentence report was thus guarded as to the extent of the applicant's insight. Ms Baron was even more guarded as to this issue. Further, as her Honour observed, the applicant did not give evidence, so she was not able to make any assessment from the applicant's own evidence as to whether he had any, or had gained any greater degree of insight than had been reported upon: see R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353. In my opinion, her Honour was entitled to give limited weight to the extent of the applicant's insight into his offending.
It must also be said that the written submissions advanced on behalf of the applicant were far from persuasive on this issue. If anything, they confirmed the applicant's continuing lack of insight into his offending conduct, as is apparent from para (3) of those submissions: "It is often difficult for the people to understand or perceive a hypothetical proposition, such as in this case, where the Victims of the pornographic material are impersonal to [the applicant] having never met any of the victims or understand their circumstances or their hurt which have occurred in some far away foreign country. This is why Victims Statements have become so wide spread in criminal case so that the perpetrator knows what hurt and damage their action has caused. Also [blaming the applicant] for being a consumer (probably one in millions and millions of perverts) for downloading this material is a bit like blaming all German People (past and present) for the Jewish Holocaust."
I have assumed that this submission was made on instructions.
Secondly, the applicant's solicitor contended that there was a medical report from the applicant's gastroenterologist that was relevant to the sentencing judge's approach to the issue of the applicant's non-compliance with his medication. The applicant's solicitor sought leave to tender that report, which had not been adduced in evidence before her Honour. The Crown objected to the tender of the report. The Court upheld the objection except to the extent that it was admitted as relevant to resentencing should the Court determine to grant leave to appeal and allow the appeal. This submission must therefore be rejected, insofar as it was relied on in support of the application for leave to appeal.
Thirdly, the applicant's solicitor submitted that the consequence of the manner in which the police conducted the investigation was that it "continued to feed [the applicant's] manic phase … whereupon he agreed to meet this person". The applicant's solicitor contended that the applicant had no expectation that anything would occur on this particular occasion, as he considered himself "a fat ugly old bugger and the meeting was at a public place". The applicant's solicitor submitted that had the police continued to monitor the situation, rather than encourage the applicant, he would hopefully have passed through his manic stage and gone back on his medication. However, there was no evidence to support this submission.
The applicant's solicitor also referred to the applicant's long psychiatric history, which dated back to when he was approximately 25 years of age. The applicant's solicitor clarified that he was not contending that her Honour erred in the way that she had dealt with the applicant's psychiatric history. Rather, he submitted that her Honour should have allowed a higher discount, because of the applicant's long psychiatric history and because the offending conduct occurred in such a limited time frame over a period of approximately 10 weeks. It is to be remembered that her Honour allowed a 25 per cent discount for the utilitarian value of the plea and also accepted that general deterrence was ameliorated in the applicant's case by his mental illness. In my opinion, there is no substance in this submission.
The Crown submitted that in any event, the sentences imposed were not manifestly excessive. It supported this submission by reference to the maximum penalties for the offences and pointed to the notional starting points for the sentences imposed, which, before making allowance for the 25 per cent discount for the plea, were less than half the maximum penalty in respect of each offence. In addition, the sentencing judge had applied a significant degree of concurrency in the sentencing structure. Her Honour had found that the s 474.26(1) offence was serious and had taken into account the applicant's mental illness. The Crown further submitted that the applicant's subjective case was limited, as he was not found to be remorseful and had limited insight into his offending. Her Honour found that his prospects of rehabilitation were unknown.
The Crown referred to the principles governing an appeal on the ground that a sentence is manifestly excessive, as enunciated by this Court in Obeid v R (2017) 350 ALR 103; [2017] NSWCCA 221 at [443]. It is appropriate to emphasise the principles reiterated in Obeid, in particular that there is no single correct sentence and that it is for the applicant to establish that the sentence was unreasonable or plainly unjust. The Crown also referred to the observations in R v Asplund; Asplund v R (2010) 216 A Crim R 48; [2010] NSWCCA 316 at [33] and [50], which emphasise that offences of the type of which the applicant was convicted potentially cause great damage to persons in the community.

Conclusion

In my opinion, there is no substance in the applicant's application for leave to appeal. No error has been demonstrated in her Honour's sentencing approach. For my part, I consider the sentence to be lenient in all the circumstances.
I propose the following order: (1) Refuse leave to appeal against sentence.
GARLING J: I agree with the orders proposed by Beazley P, and with her reasons.
HIDDEN AJ: I agree with Beazley P.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 March 2018

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