Peters v R

Grounds

1. The applicant seeks leave to appeal on the following grounds: 1. The sentencing judge erred in his Honour's consideration of the plea of guilty in relation to the Commonwealth offence. 2. The sentencing judge erred in his Honour's application of the totality principle. 3. The sentencing judge erred in his Honour's consideration of the objective seriousness of the offences.

The offences

1. Police traced the applicant's unique internet protocol address to activity on a website used to facilitate the sharing and exchange of child pornography. On 19 May 2016 they attended the applicant's home in East Tamworth where, with the authority of a search warrant, they seized the applicant's HP laptop computer, Apple iPhone and Apple iPad. Subsequent analysis revealed that there were 480 images and 72 videos comprising child abuse material in a cloud storage account; 24 images in a messenger app on the iPad; and 40 images and 60 videos stored on the laptop computer.
2. Police classified the material according to the six categories of the Child Exploitation Tracking Scheme ("CETS") scale. There were still images categorised in each of the 6 scales with the majority being in category 1 (depictions of children with no sexual activity), category 2 (non-penetrative sexual activity between children or solo masturbation) and category 4 (penetrative sexual activity involving children or both children and adults). In relation to the videos the majority were within categories 2 and 4.
3. Within the cloud storage account, the worst of the still images were of children in bondage or sadistic poses (category 5). There were also images of children and animals involved in sexual acts. Within the category 4 images there were depictions of acts of oral penetration and vaginal penetration. Some of the children depicted in the images appeared to be below the age of three. Two of the images depicted an adult male engaging in vaginal penetration of a baby.
4. The videos found on the applicant's laptop computer included boys and girls aged between 5 and 15 engaged in oral, vaginal and anal penetration of the children and acts of digital, object and penile penetration.
5. In total, the applicant possessed 676 image and video files depicting child abuse. 576 of the files were also the subject of the Commonwealth transmission offence.

The applicant's personal circumstances

1. The evidence in the applicant's subjective case comprised his oral evidence as well as the tender of reports by two psychologists, Dr Katie Seidler and Dr Ian Nisbet.
2. Dr Nisbet's report came about as a result of the learned judge allowing the sentence proceedings to be deferred pursuant to s 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW) in order to permit the applicant to undergo treatment with Dr Nisbet. The proceedings commenced on 6 April 2017 and continued on 29 August 2017.
3. The report of Dr Seidler was dated 24 February 2017 and followed her interview of the applicant earlier that month. The report of Dr Nisbet was dated 24 July 2017 and followed eight one-hour treatment sessions in his rooms from 11 April to 11 July 2017.
4. The history provided by the applicant to Dr Seidler included that he was aged 39 years and had no previous convictions. He had been raised in a stable and supportive family environment within which his developmental needs were well catered for. He was an only child and was particularly close to both parents. He reported coping easily at school and made friends and achieved well.
5. The applicant experienced some challenges in his mid-adolescence associated with a growing recognition of his homosexuality and the fact that his parents moved away from the area when he was in Year 12. Nevertheless he reportedly coped well, completed school and moved into the workforce where he had achieved some stability and success. Dr Seidler's report also included that the applicant was stable and productive in the community and remained close to his mother. There were no concerns in relation to substance abuse or mental illness.
6. In relation to the offending, the applicant acknowledged in his oral evidence that he had told lies to Dr Seidler about the circumstances in which he had received some of the child abuse material. However the judge noted that these lies were not repeated to Dr Nisbet and this persuaded the judge to accept the opinion of Dr Nisbet that the applicant had attained a greater depth of insight into what led him to make the decision to accept images of child pornography when he was offered them and that he was now clear in his opposition to it and had developed specific strategies to avoid doing so again.
7. Both Dr Seidler and Dr Nisbet were of the view that the applicant represented a relatively low risk of sexual recidivism. The judge quoted a portion of the report of Dr Nisbet in which he discussed this aspect which included that the applicant had demonstrated a considerable commitment to rehabilitating himself and "presents as compliant and has sound strategies and abilities to minimise his future risk on an ongoing basis".
8. The judge acknowledged the applicant's previous good character but said he understood from the authorities that this could be afforded little weight in such a case. During the course of submissions, after having read the report of Dr Nisbet, the judge had also remarked that he accepted that the applicant was remorseful; he had good prospects of rehabilitation; and he concluded, tentatively, that the applicant was unlikely to reoffend in this way again.

Ground 1 - error in consideration of plea of guilty for Commonwealth offence

1. The applicant was arrested on 9 June 2016. On 1 December 2016 he pleaded guilty in the Local Court and was committed to the District Court for sentence.
2. The learned judge said the following about the pleas of guilty: "The early indication of his guilt and his committal for sentence entitles him to a discount of 25% on the State charge because of the high utilitarian value of the plea. That cooperation in the administration of justice in respect of the Commonwealth charge is consistent with his latter expressions of remorse before me. However, I accept the Crown's submission that in respect of that charge the appropriate sentence reduction should be balanced against the fact that the plea was entered in the face of a strong Crown case. I do not propose to quantify the sentence discount for the Commonwealth charge."
3. It was submitted that the tenor of his Honour's remarks indicate that the applicant was not afforded a discount on sentence which reflected the high utilitarian value of the plea of guilty in respect of the Commonwealth offence. It was submitted that, for the same reason as the applicant was afforded a reduction of sentence of 25 per cent for the State offence, he should have been afforded the same in respect of the Commonwealth offence in the light of what this Court said in Xiao v R [2018] NSWCCA 4.
4. The Crown acknowledged the express reference by his Honour to the "high utilitarian value" of the plea of guilty to the State offence with no reference to the same in respect of the Commonwealth offence. It was suggested that the judge's use of the words "That cooperation" could indicate that he equated utilitarian value with the administration of justice such that he did take utilitarian value into account in considering the plea of guilty to the Commonwealth offence.
5. However, the Crown's written submissions to the judge (understandably) reflected the law pre-Xiao v R. The Crown accepted that this, coupled with the fact that the judge did not expressly say that he took into account utilitarian value in relation to the Commonwealth offence as he did in relation to the State offence, could support this Court finding that the judge did not take utilitarian value into account and thereby fell into error.

Consideration

1. This Court was constituted by a five judge bench in Xiao v R in order to resolve a divergence of views in previous decisions, particularly Tyler v The Queen [2007] NSWCCA 247; 173 A Crim R 458 and Director of Public Prosecutions (Cth) v Thomas (2016) 347 ALR 275; [2016] VSCA 237, as to whether a discount may be given for the utilitarian value of a plea of guilty in sentencing for federal offences. An associated issue was whether a quantified discount should be stated in the sentence judgment. The joint judgment of the five judges was delivered on 5 February 2018, almost six months after the present applicant was sentenced.
2. The current state of the law in relation to the utilitarian value of a plea of guilty in respect of a federal offence was encapsulated in the subsequent judgment of Bathurst CJ in Jinde Huang aka Wei Liu v R [2018] NSWCCA 70 at [9]: "Because somewhat divergent views have been expressed on the issues raised in this appeal, it may be of assistance to specify the approach which should be taken by sentencing judges in dealing with the utilitarian value of a plea of guilty in respect of Commonwealth offences having regard to the decision in Xiao v R and the judgment handed down in the present case: (1) Sentencing judges should take into account the utilitarian value of a plea in Commonwealth sentencing offences. Failure to do so constitutes error. (2) It is desirable that any discount given for the utilitarian value be specified. However, a failure to do so would not of itself constitute error. (3) It is an error to specify a range of percentage discounts as distinct from a specific percentage."
3. In my respectful view, the clear differentiation in the sentencing judge's treatment of the pleas of guilty to the State and Commonwealth offences makes plain that he did not take into account the utilitarian value of the plea of guilty for the Commonwealth offence. One indication of this is that he referred to the plea being "entered in the face of a strong Crown case", a consideration regarded in Tyler v The Queen at [114] as relevant to the subjective factor of the degree to which an offender has willingly facilitated the course of justice rather than to the objective utilitarian value of the plea.
4. The utilitarian value of the pleas to each offence was identical. It was unremarkable that the sentence for the State offence was reduced by 25 per cent on account of the utilitarian value of the plea of guilty. The Crown accepted at the hearing of the application that it would be "rational" for there to be a reduction to the same extent in respect of the Commonwealth offence.
5. There should be a grant of leave to appeal and this ground must be upheld. It is only fair to emphasise that by doing so there is no criticism of the sentencing judge. After all, he was only doing his duty in applying the law as it was then understood.
6. It becomes a matter for this Court to exercise the sentencing discretion afresh with the issue being whether a lesser sentence is warranted and should now be imposed: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37; s 6(3) of the Criminal Appeal Act 1912 (NSW). Before turning to resentencing it is appropriate to say something about the other grounds of appeal as they raise issues relevant to that task.

Ground 2 - error in the application of the totality principle

1. The statement of facts explained the basis of the two charges: "1 The offence under s 91H(2) of the Crimes Act arises out of the Offender's possession of child pornography material on a HP brand laptop and a Dropbox cloud-based server account registered in the name [shygirl….@....]. 2 The offence under s 474.19(1)(a)(i) arises out of the offender's downloading child pornography material to that abovenamed Dropbox account from users of the Kik messaging service and accessing that material from the Dropbox account using his Apple iPad."
2. Pertinent to this ground is the following passage in the judge's sentencing remarks: "Each offence has different mental elements, and although there is necessarily an overlap in this case, the offences are directed to different forms of conduct. Accordingly, there will be a partial accumulation leading to a sentence which will be moderated by virtue of the application of the totality principle." (Emphasis added)
3. For the applicant it had been submitted that any accumulation of sentences should be relatively minimal. The judge indicated during the course of submissions that he was minded to make it more than minimal but something less than complete accumulation. Despite this stated intention, in the result the accumulation was complete with the sentence for the Commonwealth offence commencing upon the expiration of the non-parole period for the State offence.
4. Both parties referred to relevant authority on the issue of concurrency, accumulation and the principle of totality. The principle is summarised in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at 47: "In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences."
5. In the present case there was a need to sentence for the applicant's use of a carriage service to access child pornography. There is additional criminality in the applicant also retaining possession of that material and being in possession of further material. There was no error in the judge considering that a further period of custody should be required in respect of the latter offence. Counsel for the applicant in the District Court conceded as much. There was, however, error in the judge saying he intended partial accumulation but imposing total accumulation.
6. The length of such further period now becomes a matter for this Court to consider in the re-sentencing exercise.

Ground 3 - error in consideration of the objective seriousness of the offences

1. The primary judge made the following finding as to the objective seriousness of the offences: "I consider these two offences to be below the mid-range of objective seriousness, but by no means at the bottom end of the range."
2. The submissions in this Court (and below) referred to a paragraph in the statement of facts: "12 Dropbox provides a log of files which have been recently accessed from the account. The log showed that the Offender accessed 57 videos and 157 images in the month of April 2016."
3. The judge referred to a submission relating to this immediately after he stated his assessment of the objective seriousness of the offences quoted above. It was submitted in this Court that "such evidence must have had some relevance to the objective seriousness of the offences". It was also said to be relevant that the Crown could not prove which images and videos the applicant had viewed; thus there was no evidence, for example, that he had viewed any of the material in category 5 of the CETS scale. However, the corollary is that there was no evidence that he had not viewed any material in that category.
4. A further submission was that there were 100 files found on the applicant's laptop computer and thus the Commonwealth offence related to only 576 rather than the whole 676 videos and images. This submission is really nit-picking.
5. The matters raised in the applicant's submissions do not warrant any criticism of the sentencing judge's assessment of the objective seriousness of the offences; they were below-midrange but not at the bottom of the range. There is no merit in this ground.

Resentencing

1. I am of the same view as to the assessment of the objective seriousness of the offences as the primary judge. The only more favourable finding that could be made is that they are at the bottom of the range, but such a finding is clearly not open. The number of videos and images in this case is towards the lower end of the scale when compared to quite a number of other cases that have come to the attention of this Court (see, for example, those referred to in the judgment of Davies J in Lyons v R [2017] NSWCCA 204 at [80]). However, given the nature of some of the material (see above at [10]-[11]), this case is clearly not in the category of being a least serious example of its type. Counsel for the applicant in this Court specifically conceded that was so.
2. All of the favourable findings by the judge as to subjective matters, including the finding of special circumstances in relation to the State offence, are well supported by the evidence and should be reflected once again in resentencing.
3. It is also important to have regard to the sentencing principles set out in the authorities to which his Honour had regard, such as Minehan v R [2010] NSWCCA 140; 201 A Crim R 243, R v Porte [2015] NSWCCA 174; 252 A Crim R 294, and R v De Leeuw [2015] NSWCCA 183. His Honour specifically referred to the "paramount public interest objective in promoting the protection of children" (R v De Leeuw at 72) and the concomitant need for general deterrence.
4. Two affidavits were read in relation to resentencing. The applicant's affidavit largely describes his custodial experience and he provides an account of being a productive and compliant inmate. He retains the support of his family. He acknowledges the likelihood of having to move away from Tamworth to obtain employment because of the publicity surrounding his case. The affidavit of his solicitor annexes certificates as to various educational and vocational courses he has completed. All of this is consistent with the findings made by the primary judge as to the applicant's good prospects of rehabilitation.
5. The only difference in approach I would take to that of the primary judge is in relation to reflecting the utilitarian value of the plea to the Commonwealth offence (I would allow 25 per cent) and in the degree of accumulation of the two sentences (I would accumulate by 6 months).
6. I propose a starting point for the sentence for the State offence of 2 years and for the Commonwealth offence of 2 years 6 months. There will be some rounding down for practical purposes in applying the 25 per cent reduction for the latter. The total effective sentence will amount to 2 years 4 months with a minimum custodial component of 1 year 3 months. The applicant will become the subject of a State statutory parole order from 27 May 2018 and will be released on a Commonwealth recognizance on 27 November 2018.

Orders

1. I propose the following orders: 1. Leave to appeal granted. 2. Appeal against sentence allowed. 3. Quash the sentences imposed in the District Court on 31 August 2017 and sentence the offender as follows: (a) For the offence of possession of child abuse material, sentenced to a non-parole period of 9 months with a balance of term of the sentence of 9 months. The sentence is to date from 28 August 2017 and the non-parole period will expire on 27 May 2018 at which time the offender will be taken to have become the subject of a statutory parole order pursuant to s 158 of the Crimes (Administration of Sentences) Act 1999 (NSW). (b) For the offence of using a carriage service to access child pornography, sentenced to imprisonment for 1 year 10 months dating from 28 February 2018 and order release on recognizance pursuant to s 19AC of the Crimes Act 1914 (Cth) after having served 9 months upon giving surety (without security) in the sum of $3000 on condition that: (i) the offender be of good behaviour for the balance of the term of the sentence; and (ii) he accept the supervision of Community Corrections NSW.

Amendments 25 June 2018 - Coversheet and [49] - typographical error in legislation 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: 25 June 2018