O'Connor v The Queen [2018] VSCA 72

1 On 16 December 2016, the applicant pleaded guilty to one charge of possessing child pornography. On 21 July 2017, he was sentenced as follows:

[Crimes Act 1958 s 70(1)]

2 By notice dated 16 August 2017, the applicant seeks leave to appeal against that sentence on the following grounds:

1. The sentencing judge erred by steering by the wrong maximum penalty for the offending charged in Indictment G11072152.
2. The sentencing judge erred by confining the application to his sentencing discretion of The Queen v Verdins [2007] VSCA 102; (2007) 16 VR 269 to its 'paragraph (d) ... that given [the Applicant's] condition, he will suffer more than the normal member of the community would suffer in gaol.'

Ground 1 - Error in application of incorrect maximum sentence

3 The applicant was found in possession of child pornography on 7 May 2015. At the time, the maximum penalty for the offence of possessing child pornography contrary to s 70(1) of the Crimes Act 1958 was five years' imprisonment. On 1 December 2015, the maximum penalty was increased to 10 years' imprisonment, but only for offences committed on or after that date, as s 114 of the Sentencing Act 1991 makes clear:

If an Act ... increases the penalty or the maximum or minimum penalty for an offence, the increase applies only to offences committed after the commencement of the provision effecting the increase.

4 At the plea hearing on 27 April 2017, however, the prosecutor referred the judge to the incorrect maximum penalty of 10 years' imprisonment. The error was reflected in the judge's sentencing remarks:

The maximum penalty prescribed for such offence is ten years' imprisonment, being indicative of the view of Parliament as to the seriousness of this crime.[1]

5 The respondent concedes that the judge erred by taking into account an incorrect maximum penalty. This concession is properly made. Given his Honour's (otherwise proper) regard to the incorrect maximum penalty as an indication of the seriousness with which the offence is viewed by the legislature, it cannot be said that the error could not have materially affected the sentence imposed.[2] Ground 1 is therefore made out. The sentence imposed below will have to be set aside and a new sentence imposed.

6 The applicant having established error under Ground 1, it is unnecessary to express a conclusion regarding Ground 2 except to the extent that the issue raised affects the re-sentencing exercise.

7 The circumstances of the offending were described by the sentencing judge as follows:

The circumstances themselves relate to a one day possession charge, being 7 May 2015, when such pornography, which I will detail in due course, was found at the applicant's premises at 38 Hall Road, Belgrave Heights.

The background of such find was a tip off from an international child rights organisation to the [Australian Federal Police], whereby information was referred to the Victorian Police, and pursuant to warrant, the home was raided on 7 May [2015].

Exhibit A, which was accepted by [defence counsel] as being the facts upon which I am to sentence her client, was the amended prosecution opening dated 19 September 2016. The only way to describe the child pornography is that both, certainly in size, it is of massive degree, and as to content, it is revolting to an extreme degree.

In the opening, paragraph 6 indicates the categorisation which was adopted, pursuant to the Australian Child Exploitation Material Categorisation Scheme. There were some, as to image files, 2,395 single frame image files and 2,739 montage image files, made up by way of 20 images per montage, some 54,780 images in regard to those montage image files.

The schedule to the opening, Schedule 1, details three of those items. In particular, three from category five, defined as sadism and child abuse. The three involved gross sadism. They involve an infant boy and two young females, between the ages of four and seven.

8 There were two schedules annexed to the amended prosecution opening. We have had regard to the schedules and we were not urged to look at the material for ourselves. Schedule 1 is a summary description of three of the 44 Category 5 sets of images found in the applicant's possession. The images involved an 18-month-old boy and two four to seven-year-old girls. Schedule 2 summarises the contents of two Category 5 and 16 Category 4 videos. That material showed penetrative sexual activity involving children and adults - mostly girls in the five to seven-year-old age group.

9 The applicant was interviewed on 7 May 2015. He said that he was not into child pornography. He gave largely exculpatory explanations as to how he had downloaded the material. He said that he '[did] not really get turned on by real young girls, 'but later said he would 'be a liar if [he] said [he] didn't get turned on by any of it.' He said that he regarded 'really young girls' as being of the ages 14, 15 and 16.

10 The relevant chronology from the commission of the offence up until the plea is as follows:

(a) 7 May 2015 - Search warrant executed on applicant's premises. Applicant took part in a record of interview.

(b) 16 March 2016 - Applicant charged on summons after analysis of material found in laptop seized from premises.

(c) 27 July 2016 - Applicant committed for trial by straight hand-up brief after plea offer accepted by prosecution.

(d) 23 September 2016 - Matter listed in County Court for plea. Applicant failed to attend court. Warrant issued for his arrest.

(e) 16 December 2016 - Arrest warrant executed. Applicant arraigned in court and released on bail.

11 As appears from the transcript of the plea hearing, it was agreed as part of the applicant's plea offer that the prosecutor would concede that a custodial sentence combined with a community correction order ('CCO') was within the range of available sentencing options. At the time that concession was made, courts could combine a CCO with a term of imprisonment not exceeding two years (after deduction of pre-sentence detention) pursuant to s 44(1) of the Sentencing Act 1991, viz:

When sentencing an offender in respect of one, or more than one, offence (other than an offence to which clause 5 of Schedule 1 applies), a court may make a community correction order in addition to imposing a sentence of imprisonment only if the sum of all the terms of imprisonment to be served (after deduction of any period of custody that under section 18 is reckoned to be a period of imprisonment or detention already served) is 2 years or less.

12 On 20 March 2017,[3] s 44(1) was amended such that the maximum custodial sentence able to be combined with a CCO was reduced to one year (after deduction of pre-sentence detention), viz:

Subject to any specific provision relating to the offence, when sentencing an offender in respect of one, or more than one, offence (other than an offence to which clause 5 of Schedule 1 applies), a court may make a community correction order in addition to imposing a sentence of imprisonment only if the sum of all the terms of imprisonment to be served (after deduction of any period of custody that under section 18 is reckoned to be a period of imprisonment or detention already served) is one year or less.

The amendment applied to any sentence imposed on or after 20 March 2017, regardless of when the offence was committed or the finding of guilt was made.[4]

13 At the plea hearing, the prosecutor did not resile from the concession despite the amendment to s 44(1), but submitted that it was a matter for the sentencing judge, who was not bound by the concession, to impose an appropriate sentence in the circumstances of the case.

14 The respondent abides by that concession on this application.

15 The sentencing judge described the gravity of the offending as follows:

... The child pornography can be described as being extremely depraved.

I find, both with the images and in particular the videos, the Court is dealing with serious examples of this offence. Firstly, because of the number of images. Secondly, because of the type of activity detailed. Thirdly, the detail and degree of such activity. Fourthly, the dehumanisation that has taken place as a result of the acts perpetrated upon these innocent children, and fifthly, the depravity demonstrated by such acts.[5]

16 That was a reasonable characterisation of the offending. It follows that a term of immediate imprisonment is inevitable. Indeed, if the maximum term of imprisonment had been 10 years, the sentence imposed would have been merciful.

17 The applicant is now 53 years of age. He had a largely unremarkable upbringing in suburban Melbourne. He left school at the end of Year 9 and completed an apprenticeship as a motor mechanic and a fitter and turner. He ran his own business for many years, and suffered from bouts of work-related stress.

18 He has been married twice, the first when he was 23. There are two children from that marriage, which ended in divorce in about 2003. His second marriage to his present wife took place about nine years ago. They have three surviving children. Their eldest son drowned in a backyard swimming pool in 2012 when he was four-and-a-half years old. The applicant and his wife separated for a period as a result. His wife left him again when he was arrested for this offending, but the applicant reported in September 2016 that there appeared to be some prospects of reconciliation.

19 On the plea, two reports prepared by Mr Patrick Newton, a forensic psychologist, were tendered. They were dated 16 and 19 September 2016 respectively.

20 In general, the applicant reported that he had an ordinary sexual history. The applicant said that he occasionally accessed pornography. He said that the exposure to child pornography occurred while he was accessing the internet from a laptop computer purchased from a work colleague and a large number of pornographic 'pop-ups' appeared, some of which contained child pornography. He agreed that he had downloaded the material and watched some of it. He denied being stimulated by it. He said he found only a small portion of the material to be sexually arousing. He did not provide any explanation for downloading, saving and retaining the material.

21 The applicant denied ever having searched for child pornography, which made it very difficult for Mr Newton to make any accurate assessment of the applicant's offending or the reasons for it. It was partly as a result of the applicant's denial that Mr Newton assessed the applicant as being a 'moderate risk' for recidivism.

22 The applicant reported to Mr Newton that, shortly after his son's death, his own father and a close family friend had died, which increased his depression.

23 The applicant reported that his methamphetamine use escalated after his son's death. He said that he had been using methamphetamine since about 2011. He had used it to enable him to work for extended periods. The applicant reported that, at the time of the interview, he had not used methamphetamine for the preceding three weeks.

24 In Mr Newton's opinion, the applicant was suffering from anxiety and depression largely related to his son's death. In 2000 and 2006, the applicant had been admitted to two mental health clinics for inpatient treatment for his anxiety and depression. The second occasion was related to the breakdown of his first marriage.

25 Mr Newton also diagnosed the applicant as suffering from post-traumatic stress disorder in partial remission.

26 In his second report dated 19 September 2016, Mr Newton reported the following at paragraphs 4 and 7 under the heading 'Mental State at the Time of the Offending':

Mr O'Connor has a long-standing history of psychiatric and psychological disturbance. This has included depressive episodes which have required a combination of impatient care and psychiatric medication as well as Post Traumatic Stress Disorder (PTSD) which developed in the wake of the death of his son in 2012.

It was difficult to obtain specific information from Mr O'Connor about the specific symptoms he was experiencing at the time of his offending conduct. Nevertheless, a review of his history suggests that his depression has been a consistent part of this life for some years. Moreover his PTSD has continued to trouble him at noteworthy levels since 2012. Treatment has been piecemeal and he has apparently not experienced a full remission of his symptoms at any time.

Accordingly, it is reasonable to conclude that he was labouring under the effects of these problems at the time of his offending conduct. Mr O'Connor's anxiety would have made it difficult for him to think clearly by impairing his ability to keep matters in perspective, to sort relevant from irrelevant matters and to engage in calm reflection. His depression would have further clouded his thinking, slowed his thought processes and left him feeling a keen sense of interpersonal neediness. Neither condition would have been sufficient to obscure his intent to commit the offence, prevent him from understanding the wrongfulness of his conduct or stop him appreciating the likely consequences of his actions.

To avoid ambiguity, the depression and PTSD which [the applicant] suffers would have had an appreciable impact on his thinking but I do not consider that they caused his offending.[6]

27 His Honour found that the conflicting versions that the applicant had advanced about the downloading of the material and his disavowal of any sexual urges relating to children made it very difficult to assess the conclusions expressed by Mr Newton in his reports. His Honour therefore ordered that a pre-sentence report be obtained from Forensicare. A report dated 22 June 2017 was prepared by Dr Rita Zergiotis and was tendered on the resumption of the plea hearing on 30 June 2017.

Relevance of applicant's mental condition to sentence

28 In his sentencing remarks, the judge noted that he was 'asked to accept that the last limb of Verdins would apply given the impact of his mental condition in gaol.'[7] This stemmed from the following discussion with counsel for the applicant at the plea hearing on 27 April 2017:

COUNSEL: ... I'm not relying on a Verdins argument save and except for ---

HIS HONOUR: Six and seven or five and six.

COUNSEL: Yes. Yes, the effect, and that's made plain our thinking [sic] from really both reports of Mr Newton, so ---

HIS HONOUR: Clearly it's going to have an impact on him, and given his current state, a harsher impact than others ---

COUNSEL: Yes.

HIS HONOUR: --- which I accept.

COUNSEL: Yes, and that's the only limb that I rely on. ...

29 His Honour had based that finding upon Mr Newton's opinion in his second report under the heading 'Effects of Imprisonment':

As a result, it is likely that Mr O'Connor's mental state will continue to be characterised by high levels of anxiety and depression. While it is a truism that any prisoner will suffer some degree of distress when facing incarceration, in Mr O'Connor's case his pre-existing symptoms are such that I would expect him to experience episodes of psychological distress at levels greater than would a typical prisoner. To this extent Mr O'Connor would be likely to experience a somewhat more onerous experience of custody relative to other prisoners. As noted in my earlier report (paragraph 38) there is some risk of impulsive acts of self-harm and appropriate precautions should be instituted to protect him from these.[8]

Counsel for the applicant did not make further submissions on this point on 30 June 2017, after Dr Zergiotis's report had been tendered.

30 Returning to the sentencing remarks, his Honour referred to Dr Newton's reports, summarised above. The judge then turned to Dr Zergiotis's conclusions in her report:

... On the second-last page, at the top, she said:

The themes expressed by him were very much of post-traumatic issues in relation to the loss of his son under tragic circumstances, and the loss of other close family members. He denied any current suicidal or homicidal ideation. His attention and concentration was good, and there was some inconsistencies with dates.

No formal cognitive testing was performed. His insight into psychological issues was at fairly superficial level. He had poor insight into the current offences and offender behaviour. He denied any active involvement in child pornography offences and rather, externalised blame for any offending on his ice addiction at the time and being the result of clouded thinking owing to depression.

Again, unfortunately there is not much assistance in the opinion proffered by [Dr Zergiotis], except at paragraph 6:

It is recommended that [the applicant] receive both psychiatric and psychological treatment for his residual symptoms of post-traumatic stress disorder.

Hence the reference to the last part of the Verdins analysis.

[The applicant] denied any suicidal ideation during the assessment, but it would be highly likely that there would be some deterioration in his mental state around the time of sentencing, especially if this resulted in a custodial sentence.

He should have access to appropriate prison health services and [the applicant] was advised therefore during the assessment to seek appropriate treatment within the current facility where he is remanded.

He would also benefit in participation of specialist sex offender program to develop a greater understanding in relation to his use of pornography and reduce the risk of recidivism.[9]

31 His Honour then concluded his analysis of the applicant's mental condition as follows:

Unfortunately, the Court is limited in obtaining a full understanding of the criminality in this matter. I accept however, that paragraph (d) of Verdins is appropriate, and that given his condition, he will suffer more than the normal member of the community would suffer in gaol, and I take that into account in sentencing.

Unfortunately of course, in gaol are many, many persons, as we know, with similar conditions, if not, more extreme.[10]

32 So that his Honour's references to Verdins are placed in context, and with a view to counsel's submissions before us, it is convenient to set out the six propositions in which an offender's impaired mental functioning could influence his or her sentence as set out in R v Verdins:[11]

Impaired mental functioning, whether temporary or permanent ('the condition'), is relevant to sentencing in at least the following six ways:

1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.[12]

33 Before us, counsel for the applicant submitted that the fifth and sixth propositions were enlivened in the applicant's case, and whilst it was unclear which of the two propositions the judge took into account in sentencing, his Honour had erred in failing to take into account both propositions.

34 In our view, it is sufficiently clear from the sentencing remarks, and from the judge's discussion with counsel at the plea hearing, that his Honour accepted Mr Newton's opinion that the applicant's time in custody would weigh more heavily upon him than it would on an ordinary prisoner because of his poor mental condition, and thus applied the fifth proposition.

35 That was not, however, all that the judge took into account. His Honour referred to 'the last part of the Verdins analysis' at paragraph 6 of Dr Zergiotis's report and subsequently accepted that 'paragraph (d) of Verdins is appropriate, and [emphasis added] that given his condition, he will suffer more than the normal member of the community would suffer in gaol'.

36 Although the reference to 'paragraph (d) of Verdins' was inapt, it followed directly from the quotation of the passage in Dr Zergiotis's report which was apposite to proposition six, that is, there was a serious risk that the applicant's mental condition would deteriorate as a result of imprisonment.

37 In our view, although infelicitously expressed in his sentencing remarks, the judge did take into account propositions five and six of Verdins. Although, as already noted, it is not necessary to consider Ground 2 as such, this analysis is necessary when considering the re-sentencing of the applicant.

38 As appears from the passage of the transcript of the plea quoted earlier, counsel for the applicant did not submit that the judge should have regard to the first four propositions of Verdins. There is no doubt that his Honour interpreted paragraph 7 of Mr Newton's second report as a direct disavowal of the application of the first four Verdins propositions.[13]

39 Before us, however, the applicant submitted that we should have regard to these four propositions in the re-sentencing exercise. It was argued that when paragraphs 4 to 7 of Mr Newton's second report are read together, it would be reasonable to find that the mental state of the applicant did impact on his offending, without necessarily being causative of it.

40 In Director of Public Prosecutions v O'Neill,[14] after a careful analysis of the authorities, including Verdins, the Court said:

Clearly, there must be an established evidentiary basis for moderating the principles of general deterrence in a particular case. For that to occur, it is not sufficient that the offender suffer from a particular mental impairment. There must be proper, and informed, consideration of how that impairment might have either materially diminished the capacity of the offender to reason appropriately at the time of the offence concerning the wrongfulness of his or her offending, or of how the offender's condition might make the full application of the principles of general deterrence repugnant to the underlying sense of humanity which guides proper sentencing.[15]

41 In our view, the material available in this case falls short of establishing the connection referred in O'Neill. That is particularly so since there is no explanation as to the interplay between the applicant's mental state and his use of methamphetamine. Even if we are wrong about that, it would not significantly reduce the applicant's moral culpability or reduce the need for both specific and general deterrence to feature prominently in the sentencing synthesis.

42 In any event, the applicant does suffer from post-traumatic stress disorder in partial remission, and a longstanding depressive illness which has required inpatient treatment. It appears that after the unfortunate death of his son in 2012, which gave rise to his post-traumatic stress disorder, the applicant had not received treatment for his mental condition. We have taken those matters into account.

43 The sentencing discretion having been re-opened, an issue to be considered is whether a combined custodial and CCO sentence would be appropriate in this case.

44 The applicant relies upon the other matters in mitigation that were put on the plea - early guilty plea; admissions in his record of interview, albeit qualified; no relevant criminal history; and good work record.

45 The applicant does have a criminal history but not for offending of a sexual nature. His prior convictions in Grafton, New South Wales, in 2003 for common assault and for carrying a firearm with disregard for safety of another, which led to suspended sentences of 3 months and 18 months respectively, appear to have been reasonably serious. They were said to have arisen out of an incident around the time of the breakdown of his first marriage. Although those matters should be noted, they have little impact on the re-sentencing of the applicant.

46 The applicant is to be sentenced on the basis that the maximum penalty for this offending is five years' imprisonment.

47 After hearing the application, we ordered that the applicant be re-assessed for his suitability to be released on a CCO.[16] In a pre-sentence report filed with the Court on 14 March 2018, Community Correctional Services found the applicant suitable for a properly conditioned CCO.

48 We regard it as being in the interests of both the applicant and the community that he be released on a CCO after serving a term of imprisonment. It is appropriate that the applicant have assistance and supervision under such an order for a period of three years.

49 As pointed out at [12] above, an offender may only be sentenced to a combined term of imprisonment and a CCO if the term of imprisonment after the deduction of any pre-sentence detention is one year or less - that is, effectively, a term of one year or less from the date of sentence.

50 This offending is serious and the applicant lacks insight about it. We have decided that the applicant should serve a total of 18 months' imprisonment before being released on a CCO. Excluding today, the applicant has spent 333 days in custody in prison. Pursuant to s 18 of the Sentencing Act 1991, we declare that that period is to be taken as having been served under the custodial portion of this sentence. This has the effect that the term of imprisonment still to be served is less than one year for the purpose of s 44(1) of the Sentencing Act 1991, and a CCO may be imposed in combination with the term of imprisonment.

51 We further order that, upon his release from imprisonment, the applicant be subject to a CCO for three years. We note that the applicant has consented to the order. The special conditions applicable to the order are:

(c) Assessment and treatment for drug abuse or dependency; and

52 Pursuant to s 11(2A) of the Sentencing Act 1991, no non-parole period is to be fixed as part of the sentence of imprisonment.

53 Pursuant to s 6AAA of the Sentencing Act 1991, we indicate that, had it not been for the applicant's plea of guilty, we would have sentenced him to be imprisoned for two and a half years with a non-parole period of 18 months.

54 All ancillary orders of the court below are affirmed.

[1] DPP v O'Connor (Unreported, County Court of Victoria, Judge McInerney, 21 July 2017) [3] ('Sentencing Remarks').

[2] R v Beary [2004] VSCA 229; (2004) 11 VR 151, 159; R v Orbach [2007] VSCA 166.

[3] Sentencing (Community Correction Order) and Other Acts Amendment Act 2016 s 12.

[4] Sentencing (Community Correction Order) and Other Acts Amendment Act 2016 s 17.

[6] Report of Patrick Newton dated 19 September 2016 [4]-[7] ('Newton Second Report').

[11] [2007] VSCA 102; (2007) 16 VR 269 ('Verdins').

[13] There is a passage in the Sentencing Remarks at [33] which purported to quote paragraph 7 of Mr Newton's second report but which was actually his Honour's interpretation of the impact of that paragraph.

[14] [2015] VSCA 325; (2015) 47 VR 395 ('O'Neill').

[16] He had been found suitable for a CCO at the time of sentence.