R v Cook [2018] TASCCA 20

R v Cook [2018] TASCCA 20 | Case summary | Zoe

[47]

Section 16BA of the Crimes Act 1914 (Cth) provides that the Court may take into account in sentencing for "a particular federal offence, other federal offences not included in the indictment". The process for doing so is prescribed by the section and requires the consent of the prosecutor and, in effect, the consent of the respondent. Before the Court can take into account the relevant offences, the respondent must admit his guilt in respect of them. He is not to be convicted of those offences (the basis of the complaint in ground 2), nor separately punished for them, but the Court, in sentencing for the offence for which sentence is being passed, will take into account the said matters "for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for a particular offence": see De Lorenzo v DPP (Cth) [2017] VSCA 270. The circumstances of that offending can result in a "significantly higher penalty in respect of the primary offence than that which would otherwise have been appropriate had the primary offence stood alone": Le v The Queen [2017] NSWCCA 26.
The respondent admitted guilt with respect to five offences, all of which were breaches of s 474.27A(1) of the Criminal Code (Cth), in particular that he used a carriage service to transmit indecent communications to a person he believed to be under 16 years of age. The sentencing judge was asked to take those offences into account when sentencing the respondent for the offence in count 11. The brief description of the conduct relevant to each offence is as follows:
- On 31 December 2012, the respondent conducted a live messenger conversation with a person he believed to be a 13-year-old female. The conversation contained graphic sexual context. For example, the respondent asked the female in lurid terms whether she had had oral and anal sexual intercourse.
- The second offence was committed on 2 April 2013. It related to a conversation by similar means with a named person whom the respondent believed to be a 14-year-old female. In the course of the conversation, the respondent described his penis and discussed with her, sexual acts that she claimed to have engaged in with boys of a similar age.
- This offence occurred during the course of a conversation by live messenger conducted on 18 August 2013 with a person whom the respondent believed to be a 16-year-old female. The conversation included graphic descriptions of sexual acts which the respondent said he wanted to perform with and upon the female, as well as repeated requests for her to send him naked photographs of herself.
- This offence occurred during the course of live internet chat on 3 September 2013. The conversation was with a person whom the respondent believed to be a 13-year-old female residing in Perth. In fact, this was a fictitious identity created by a police officer in Western Australia for the purpose of investigating conduct of this nature. A number of conversations took place between 3 September and 30 December 2013. Initially, the conversation did not involve explicit sexual content. However, in later conversations, the respondent requested that the female send him photographs of herself, discussed kissing her, and asked her if she had masturbated or had an orgasm.
- On 19 June 2014, the respondent engaged in a conversation via Skype with a person he believed to be a young female. A non-pornographic image of a female was sent to him showing a person aged between 12 and 15 years. The respondent made some suggestive sexual comments and sent the female a link to an adult pornographic website. In a conversation on 28 June 2014, the respondent sent a number of indecent communications which included that he looked at her images while masturbating and was thinking about engaging in sexual activity with her. He described the activity as "face fucking, anal rape, bondage and spanking".

[50]

These observations of the respondent's psychological and social condition informed the explanation for his offending behaviour. The psychologist opined that he used internet communication with females to overcome his inability to establish personal and, in particular, sexual relationships, directly. His counsel submitted that his primary motivation was simply to connect socially, that many of his social interactions were not of a sexual nature, but that "it occurred often that conversation would take a sexual turn, for want of a better word". It was also submitted that the respondent was "role playing" and for this reason purported to be younger than his actual age. It was submitted that he made no attempt to physically meet or engage with the person with whom he was corresponding, and had no intention of causing harm to anyone. It was submitted that he did not know that the persons with whom he was corresponding were in fact female children and in at least one case, counts 10 and 11 that concern the female in Russia, he did not believe what he was being told by her. On the other hand, it was conceded by his counsel that he had correctly admitted to police that he was sexually attracted to females under the age of 18 years.
It was submitted by his counsel to the sentencing judge, and recited in the psychologist's report, that the respondent was remorseful for his conduct, and in particular was disturbed "that harm could have been caused by his actions and he is regretful that any actions on his part could have caused people distress". It was submitted that the fact that he had not committed any further offences since his arrest, and his plea of guilty, could be accepted by the Court as evidence of true remorse.
Finally, it was suggested by the psychologist that the respondent's social and emotional immaturity would "make it difficult for him to navigate the social dynamic within the prison", and that he "would find life in prison more threatening and anxiety provoking than would be experienced by someone without these limitations".

[51]

The learned sentencing judge analysed in some detail the nature of the material found in the respondent's possession, which was the subject of count 14. He noted that "the greatest number of images were artificial constructs not involving abuse or exploitation of 'real children'." This is a reference to the fact that, apart from the material obtained by the respondent as a result of the commission of the balance of the criminal activity described in the indictment, the majority of the material found on the respondent's computer fell into Category 6 of the ANVIL scale "anime, cartoons, comics and drawings depicting children engaged in sexual poses or activities". His Honour concluded that "the Tasmanian legislation, in this case possession, does not extend to non-persons such as avatars or constructs". In relation to the Commonwealth legislation he considered that these ought be given "less weight than depictions of real children".
In relation to the Commonwealth offences, his Honour accepted that the respondent "showed no desire or expectation that the online connections would lead to actual contact". He accepted that the respondent had no desire to harm others, and that the main purpose of his actions "was the fear of rejection rather than the desire to harm". However, his Honour also observed that "the legislation is intended to protect the young and the vulnerable from harm and exploitation". He considered that a graduated response to "the tensions between human nature and weaknesses and collective attempts to curtail exploitation" was warranted.
Ultimately, his Honour concluded that "This case is one at the lower end of commensurate sentences." It would seem that his Honour was referring to the relative objective seriousness of the respondent's conduct, within the context of comparison with the circumstances in other cases nominated in his Honour's comments.
In determining sentence his Honour grouped together the crimes into the following categories:
- Counts 1, 5, 7, 9, 11 and 13, together with the five charges of communication with persons under the age of 16, under s 14BA into the category of the crimes of soliciting material. His Honour regarded these as "the most serious".
- Count 6 involving transmission directly to another.
- Counts 2, 3, 4, 8, 10 and 12 which comprise the transmission.
- Count 14, possession of child exploitation material which his Honour regarded as "mainly subsumed in the above".

[56]

The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed.
The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material.
The number of images or items of material - in a case of possession, the significance lying more in the number of different children depicted.
In a case of possession, the offender's purpose, whether for his/her own use or for sale or dissemination. In this regard, care is needed to avoid any infringement of the principle in The Queen v De Simoni (1981) 147 CLR 383.
In a case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted.
Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination/transmission.
The proximity of the offender's activities to those responsible for bringing the material into existence.
The degree of planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating or transmitting the material.
Whether the offender acted alone or in a collaborative network of like-minded persons.
Any risk of the material being seen or acquired by vulnerable persons, particularly children.
Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted.
Any other matter in s 21A(2) or (3) Crimes (Sentencing Procedure) Act (for State offences) or s 16A Crimes Act 1914 (for Commonwealth offences) bearing upon the objective seriousness of the offence."
In this case, the serious aspect of the respondent's conduct was not related to the number of images or items of material, nor the nature and content of that material. This was not a case of a person who had solicited, transmitted or possessed significant quantities of material depicting conduct towards children of a high level of depravity and cruelty. In that respect, this case can be distinguished from other far more serious cases involving child pornography.
However, the serious aspect of the respondent's conduct in this case was his use of the internet to directly contact persons who purported to be real children for the purpose of soliciting those children to create and transmit to him pornographic images of themselves. The criminal use of the internet to target, manipulate and abuse vulnerable persons, including children, is the prime concern of the provisions of the Criminal Code (Cth) which include the sections breached by the respondent in this case. See Subdivisions D and F of Div 474. These provisions deal with a wide range of criminal purposes and activities which are effected through the use of carriage services such as the internet. The internet, in particular, poses unique risks and dangers. In relation to child pornography, the internet provides the capacity for the covert dissemination and transmission of large quantities of such material without any effective limitation imposed by national boundaries, customs services, or the need for physical transportation of the material. Such material can be transmitted immediately to an unlimited number of recipients and in a virtually unlimited quantity.
In this case, the concern arising from the use of the internet, against which the legislation was directed, was somewhat different. By use of the internet, the respondent was provided with the opportunity to easily and covertly make contact with a significant number of persons who purported to be, and potentially were, children. His primary purpose was to achieve sexual gratification by interaction and communication with the children, and, as part of achieving that purpose, he solicited and, in some cases obtained from them directly, child pornography material. The use of the internet for this purpose constituted serious criminal conduct. The internet provided the opportunity for insidious and secretive communication, and hence easy access by an adult male, intent on sexual gratification, to vulnerable children. The respondent's communications were intended to, and in some cases did result in persons purporting to be, and who potentially were children, producing and transmitting child pornography. The subject of the pornography, in respect of most if not all of the offences in question was the purported child herself. These aspects of the respondent's criminal use of the internet required strong denunciation and a clear emphasis on general deterrence.
On the appeal, the respondent's counsel submitted that, at least in respect of the soliciting and transmission offences, the respondent's culpability was not to be assessed on the basis that he either believed that he was, or was in fact, engaging with female children. Neither fact was an element of the relevant offences, and, accordingly, could not be taken to have been admitted by the plea of guilty. Counsel also argued that because a belief that the person with whom he was dealing was an element of other offences, for example s 474.27A(1), that the respondent could not be sentenced on the basis of those elements. As I understood this argument, it was based on the principle confirmed in R v Di Simoni (1980-1981) 147 CLR 383. It was asserted, in any event, that the respondent disputed these facts in mitigation, and the facts had not been proved by the prosecution beyond reasonable doubt.
There is no question that the respondent was not to be sentenced on the basis that any of the persons with whom he was corresponding in respect of any of the offences, including the indecent communication offences (s 427.27A), were actually children. This had not been asserted nor proved by the prosecution, nor was it a matter which had been admitted by the respondent. Further, the question of whether the respondent believed he was dealing with children, was not a matter which was positively asserted by the prosecution in the sentencing hearing. On the other hand, while defence counsel asserted to the sentencing judge the obvious proposition that the respondent could not know whether the person he was dealing with was, in fact, a female child as that person purported to be, it was not asserted that he had any positive belief to the contrary.
Accordingly, it is uncontroversial that the respondent's culpability was not to be assessed on the basis of, or aggravated by, the certainty that actual harm had been caused to real children. However, the absence of the positive existence of this fact does not, to any significant extent, mitigate the respondent's culpability, nor detract from the importance of denunciation and general deterrence in the sentencing process. As already discussed, the real concern with the respondent's conduct was his use of the internet over a significant period and on a repeated basis to make contact with persons who purported to be children, for the purposes relevant to each of the offences to which he pleaded guilty. It could not be established that the contact, at least that coming from the purported child, went beyond communication by text. While the respondent could therefore not possibly know with certainty that the person with whom he was communicating was the purported child, there was great potential for such contact to be with real children. The communication was clearly directed to children and there was, therefore, a significant and unacceptable risk that children would be harmed by the use of the internet in this way. See Adamson v The Queen [2015] VSCA 194. I agree with Marshall AJ that the protection of children is a primary sentencing consideration in respect of the crimes in this case.
With respect to the question of the respondent's belief, the evidence was overwhelming that the respondent had directed his offending at, and believed he was, communicating with real female children aged between 10 and 16 years. His prevalent requests for photographs, the nature of his correspondence, his admissions concerning his sexual interest in children under 18, and his attempts to engage some of the persons in face-to-face communication via webcam exclude any reasonable possibility that he thought he was engaging with anybody other than a female child. This fact was relevant to the respondent's personal culpability. Using the internet to directly target children for the purposes and in the manner relevant to these offences places this conduct into a very serious category. The respondent's protestations of a lack of intent to harm the children deserve little weight. The potential for harm was real and obvious, and any lack of positive intent can be better explained by a reckless indifference to harm, arising from the respondent's focus on his own desires and perceived needs.
The Court was not precluded by the principle in Di Simoni from taking into account, in respect of the soliciting and transmission offences, the fact that the respondent was indecently communicating with persons he believed to be children. Although Di Simoni was actually concerned with the issue of whether a circumstance of aggravation as defined under the Criminal Code (WA) could be taken into account for the purpose of sentencing if it had not been charged in the indictment, that case has since widely been taken as authority for the principle that such a limitation applies where the circumstance is one that forms an element of a different and uncharged crime, whether or not it is expressed as a circumstance of aggravation of the charged crime. However, the principle operates as a qualification of the general principle that, in sentencing, a judge should take into account "not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly to be regarded as circumstances of aggravation or circumstances of mitigation": R v Austin (1985) 121 LSJS 181. However, there are two matters which limit the application of the principle. Firstly, the principle only precludes consideration of circumstances which, had they been proved as an element of a separate crime, would have rendered the person being sentenced liable to greater punishment: R v Causby [1984] TASRp 9; [1984] Tas R 54, per Cox J (as he then was). Secondly, the principle will not apply where the circumstances "form part of, or are directly related to one of the ingredients of the charge" for which the respondent is to be sentenced: Causby per Green CJ, cited with approval by Crawford J (as he then was) in Walsh v The Queen [1996] TASSC 59; (1996) 6 Tas R 70 and approved and applied by the Court of Criminal Appeal in TGW v Tasmania [2017] TASCCA 10. In this case, each consideration is applicable and leads to the conclusion that the respondent's belief as to the age of the persons with whom he was corresponding is a relevant sentencing factor in respect of all offences.
In relation to the soliciting and transmission offences, the uncharged offence relied upon for the Di Simoni argument, is one contrary to s 427.27A. However, an offence under that provision carries a less severe maximum penalty (seven years' imprisonment) than the soliciting and transmission offences (15 years' imprisonment). The latter are, in fact, the more serious offences. Further, the respondent's use of the internet to engage in direct and indecent communication with persons he believed to be children was integral to the means by which those offences were committed. The said circumstances were "directly related" to essential elements of the charges under s 474.19, in particular, the means by which he solicited or caused the transmission to himself of child pornography. In my view, the sentencing court is not precluded from having regard to those circumstances when determining sentence for the s 474.19 offences.
Other factors which aggravate the respondent's culpability in this case include:
- The significant age disparity between the respondent and the children with whom he thought he was communicating.
- The repeated nature of the conduct. This includes the fact that a number of the offences were constituted by repeated communications over a significant period of time.
- The language used by the respondent in the course of the communications exhibited a significant level of depravity and was highly sexually explicit and graphic. This had the capacity to corrupt the children with whom he thought he was communicating, as well as setting the tone for the nature of the child pornography which the respondent hoped to solicit.
- It was inherent in the respondent's conduct that the children themselves would produce the child pornography.
- The respondent retained the material that was sent to him in an organised way. This enabled him to anticipate and facilitate continued offending in respect of each child in the future.
Of course, as has already been discussed, many of the factors which would usually aggravate offending of this nature were absent in this case. For example:
- The respondent's activities were not undertaken with a view to profit, nor was there any commercial element to each transaction.
- There is no suggestion that the respondent made or intended to make the material available to anyone else. He conducted these activities solely for his own sexual gratification.
- The material was limited in number and moderate in terms of its relative level of depravity.
- The respondent was not part of a group or network of likeminded persons seeking to target children.
Finally, other factors which were relevant to sentence, in the respondent's favour, included the respondent's lack of prior convictions, his early pleas of guilty and his co-operation with the investigation, the fact that he had not reoffended since his arrest, and the significant delay by the prosecution authorities in bringing the matter to a conclusion.

[57]

Ground 1 complains that the sentencing judge erred in his application of the totality principle. His Honour did not actually refer to the totality principle during the course of his comments. In any event, as already noted, whether or not the judge erred in the application of any relevant principle can only be effectively tested against consideration of the ground asserting manifest inadequacy.
There can be no doubt that the totality principle was applicable to the formulation of the sentences in this case. The respondent was being sentenced for a number of separate acts of criminality, each of which attracted a significant penalty and which were deserving of separate punishment. The need to ensure that an appropriate sentence is fixed for each offence before considering questions of totality and accumulation or concurrence was pointed out by the plurality in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610. As I noted in Director of Public Prosecutions v WLNH [2017] TASCCA 15, the totality principle has two limbs. Firstly, the principle requires a court imposing sentences for multiple offences to have "a last look" at the aggregate sentence to ensure that it is proportionate to the overall criminality: see Mill v The Queen [1988] HCA 70; (1998) 166 CLR 59. Secondly, it enjoins a court "to ensure that an offender is not subjected to a crushing sentencing not in keeping with his record and prospects": see Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295. Both limbs of the principle were engaged by the circumstances of this case.
The appellant also argues that the sentencing judge erred by not providing for an appropriate degree of accumulation between the various sentences. This argument is closely related to the question of totality, and can only be ultimately tested by assessing whether the overall effective sentence was within a reasonable exercise of sentencing discretion. It seems clear from the sentencing judge's comments that his Honour determined "to provide an effective sentence of 13 months' imprisonment overall", and then structured the sentences imposed to achieve this result. In Johnson v The Queen [2004] HCA 15, 205 ALR 346, the High Court endorsed the approach earlier expressed in Mill and Pearce (above) that the orthodox practice is to fix a sentence for each offence, and aggregate them in order to consider the question of totality. The principle of totality can then be reflected by determining questions of concurrency and accumulation. In respect of Commonwealth sentences, because s 19(3) of the Crimes Act requires the court to fix the commencement of each sentence by reference to a date, concurrency and accumulation is often achieved by fixing appropriate commencement dates for each sentence. The court in Johnson also confirmed that it is permissible to achieve a similar effect by simply lowering each sentence. However, it is unacceptable for a sentencing judge to simply determine an aggregate sentence and then apportion time to each individual act of criminality within that overall determination.
In this case, with the exception of the State possession charge, and counts 10 and 11, each crime consisted of a separate act of criminality, which involved different children. While a number of counts were committed at around the same time, the respondent's criminality involved repeated acts of this nature over a period of approximately four years. The seriousness of some counts was increased by their rolled-up nature, in that they involved a number of communications between the respondent and the purported child. In these circumstances, there was a need for "at least partial accumulation otherwise there is a risk that the total sentence will fail to reflect the total criminality of the offences" Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301 per Price J.
However, the second limb of the totality principle did require some adjustment of the aggregate sentence, after sentences had been calculated individually for each charge. The respondent's lack of prior convictions, and expressions of remorse, were factors to be taken into account, and particularly relevant to the question of the need to avoid an overly crushing sentence having regard to his "record and prospects". Further, the aspects of his character and personality which had contributed to his decision to commit these offences, were also relevant to the question of the impact upon him of a lengthy sentence.
In my view, when regard is had to the need to impose punishment proportionate to all of the criminality involved in this case, but also taking into account the principle of totality, the proper approach was the orthodox approach endorsed in Johnson, that is to assess the sentences for each offence individually, and then aggregate them in order to determine whether or not the overall sentence was consistent with the dual limbs of the principle of totality. It was then appropriate to determine appropriate concurrency and accumulation, in order to adjust the overall effective sentence having regard to those principles. In Tasmania at least, as I will discuss shortly, the result so achieved may then be expressed as a global sentence, individual sentences with varying commencement dates, or a combination thereof.

[59]

I agree with Marshall AJ that it is appropriate for this Court to re-sentence the respondent and that there is no reason why the Court should exercise its residual discretion to decline to interfere with the sentence imposed in this case.
In my view, the various offences of soliciting and transmitting child pornography would each have warranted an individual sentence of between one and two years' imprisonment, according to the circumstances of the offence in question. Count 6 is a serious example of its type. I would have imposed a sentence of two years' imprisonment for this crime.
Count 11, taken alone, is also a serious example of the crime in question. The sentencing judge adopted the approach that the verbal description of the abuse transmitted to the respondent "appeared to be 'fantasy constructs', rather than ones of actual events". I am not sure that this factual finding was justified, but, in any event, there was certainly potential for a real child to be affected by the respondent's conduct. Taken alone, the offence justified a sentence of two years' imprisonment. However, it was in relation to this charge that the Court was required to take into account the offences contained in the s 16BA schedule. This was also serious conduct which, although constituting offences under a different section, still contained the factors which give rise to the need for denunciation and general deterrence. Taking the schedule offences into account, I would have imposed a sentence of three years' imprisonment in respect of count 11. Given that counts 10 and 11 involved communications with the same purported child, and can be regarded as being parts of the same criminal transaction, it would be appropriate for these sentences to operate concurrently.
In relation to the State offence at count 14, I would agree with the sentencing judge that, taking into account the nature of the pornography, the offence was at the lower end of the range of seriousness. I would not interfere with the sentencing judge's assessment of four months' imprisonment.
Apart from counts 10 and 11, and count 14, there is no proper basis, apart from totality, for any of the sentences to operate concurrently. However, as already discussed, the second limb of the principle requires significant adjustment to the overall effective sentence, in order to avoid a sentence which will be unduly crushing. Taking into account the overall criminality involved in the respondent's conduct, and all other relevant sentencing factors, I am satisfied that an overall effective sentence of four years' imprisonment is appropriate.
The final question is the appropriate form of the order. Section 11 of the Sentencing Act 1997 is applicable having regard to s 68 of the Judiciary Act 1903 (Cth); Putland v The Queen [2004] HCA 8, 218 CLR 174. In the circumstances, the only sensible course in respect of the Commonwealth offences is to either impose a separate sentence for each offence, with appropriate commencement dates to allow for accumulation and concurrency, or to reflect the overall sentence in a global sentence for all of the offences. Given the number of offences and the very significant adjustment necessary to give effect to totality, I think that the latter is the preferable course.
Finally, it will be necessary to specify a non-parole period. Although a longer period could be justified by the serious and repeated nature of the offending, I think that a modest period is appropriate in order to reflect the delay and the plea of guilty. I would allow a non-parole period of two years.
I would therefore allow the appeal, quash the sentences and orders made by the learned sentencing judge and, in lieu thereof, make the following orders:
1. The respondent is convicted of each of the crimes alleged in counts 1 to 14 of the indictment.
2. In respect of counts 1 to 13, the respondent is sentenced to imprisonment for a term of four years, which will commence on 4 May 2018.
3. In respect of that sentence, there is imposed a non-parole period of two years commencing on 4 May 2018.
4. With respect to count 14, a sentence of four months' imprisonment is imposed, which will commence on 4 May 2018.
5. The HP Pavilion laptop computer (exhibit 37491-697-3) and the Compac computer (exhibit 37491-696-4) be forfeited to the Commonwealth.
6. The respondent's name shall be placed on the register in accordance with the Community Protection (Offender Reporting) Act 2005, and he is to comply with the reporting conditions as required by that Act for a period of five years after release.

[72]

The appellant submits that the sentences imposed did not accurately reflect the gravity of the Commonwealth offending or result in a total effective sentence which accurately reflected the totality of the criminality involved in the totality of offences.
The appellant submits that the length of the terms of imprisonment which were fixed for the Commonwealth offences were manifestly inadequate given the nature of the offending, the sentencing principles to be applied, and the sentencing methodology adopted.
The sentencing judge imposed one penalty for each type or group of offences. The appellant contends that the ultimate sentence imposed for each group of offences covered many different and discrete instances of offending and involved several victims. By imposing a "group penalty" the sentences did not, the appellant says, reflect the objective seriousness of the overall Commonwealth offending.
The appellant contends that the sentence of 15 months' imprisonment imposed on counts 1, 5, 7, 9, 11 and 13, did not reflect the circumstances that the offending involved six separate instances of serious criminality with six individual victims and two distinct types of offending. The offending involved soliciting child abuse material and child pornography material.
The appellant submits that the three months' imprisonment imposed in respect of counts 2, 3, 4, 8, 10 and 12 did not reflect the seriousness of the offending. These charges involved instances where the respondent caused material to be transmitted to himself from six separate sources, and involved more than one episode of criminal conduct.
It is the appellant's submission that the sentencing judge should have imposed a sentence which included some accumulation between the Commonwealth sentences and the State sentence, to acknowledge that the two different forms of offences were directed at different vices.
The appellant says that the sentencing judge should have imposed separate sentences on each Commonwealth charge (13 in total), and then ordered an appropriate degree of accumulation between the Commonwealth sentences and the State sentence. It is submitted that this would reflect the different forms of criminality, instances of offending, and separate victims.
In my view there is merit in the submissions of the appellant. Apart from counts 10 and 11, each of the charges involved separate victims and instances of offending. Further, notwithstanding the overlap between the concept of possessing child pornography and soliciting and transmitting child pornography, they are separate charges and it is appropriate to impose some accumulation in respect of them. However it was open to the sentencing judge to group the offences as he did so long as the overall sentence reflected the gravity of the charges.

[79]

The charges covered 4 distinct and discrete types of Commonwealth offending, namely soliciting child pornography material, soliciting child abuse material, causing child pornography material to be transmitted to himself and transmitting indecent communications to a child under 16;
There were 5 charges of soliciting child pornography material. The respondent solicited sexually explicit images from 5 separate children which included asking for photos of them having sexual intercourse, and if none were available, he asked for photos to be taken and sent to him. He also encouraged at least one recipient to engage in sexual acts for him on live webcam;
The respondent was persistent in his efforts to solicit child pornography material, making repeated requests for images to be sent to him, asking some children to obtain webcam to facilitate face to face or live communication with him, and even providing instructions to one recipient on how to transfer images to his computer;
Most of the respondent's interactions with victims were not isolated exchanges but occurred over periods of days or weeks;
When soliciting child pornography material the respondent also used sexually graphic and salacious language, and asked sexually explicit questions directed at eliciting sexualised responses from the child recipients. In asking victims to describe their sexual experiences, the respondent obtained child exploitation material in the form of both text and images;
The respondent also solicited child abuse material (count 11) on one occasion when he engaged in communications involving descriptions and discussions of rape, and sexual activity involving pain and humiliation;
The respondent was sentenced in relation to 6 counts of causing child pornography material to be transmitted to him. 76 images were identified as material the respondent caused to be transmitted to himself during the course of his offending These images had been saved by the respondent and were located under the name of each girl in a folder titled 'Random Chicks';
Whilst the majority of these images (55) were classified as level 1, not all of these images can be said to be innocuous and the 'moral depravity and wickedness of images classified as Level 1' seriously detracts from any submission that the gravity of offending is less serious because the vast majority of images are only level 1;

[86]

There is merit in each of the factors referred to in those submissions. Each of the counts contained extremely serious charges. The protection of children from activities engaged in by the respondent is the paramount consideration. In my view the respondent should have been sentenced in respect of each charge, and there should have been some degree of accumulation between the Commonwealth charges and the State charge. I accept the submission of the appellant that the sentencing judge must have permitted factors personal to the respondent to overwhelm the objective seriousness of the offending. I disagree with the observations of the primary judge that the respondent's offending was at the "lower end of offending". In my view the sentences imposed fell outside the sentencing range reasonably available to the sentencing judge.
Counsel for the respondent submitted that, apart from the charge under count 6 and the matters falling under the s 16BA notice, the respondent claimed he did not know he was dealing with children, and that he was involved in a fantasy role play. However, the respondent was encouraging the production of child pornography and there was a real risk that his behaviour would see him interacting with children. At the very least, there was considerable potential for a child to be interacting with the respondent. I reject the contention that all the respondent was trying to do was to engage in fantastical, bizarre narratives without regard to the age of those with whom he was engaging.
Counsel submitted on behalf of the respondent that there have been other cases where more images were produced and a higher classification of pornography was involved. Counsel submitted that the current offending was far from being the worst kind. It is possible to imagine more serious offending, but this does not mean that the sentences imposed were not manifestly inadequate. An effective period of 10 months' imprisonment for very serious offending involving offences against children is difficult to justify in all the circumstances.

[87]

The Court should accordingly re-sentence the respondent and not exercise its residual discretion to decline to interfere with the sentence of the sentencing judge.
Counsel did not refer the Court to any previous case which possessed the same characteristics as this matter. This is not surprising. Each case falls to be determined on its own facts. However, where the sentencing discretion can be seen to have miscarried as a result of an inadequate sentence, the appellate court must come to its own view as to the appropriate sentence to be imposed.
On the solicit child pornography charges (the subject of counts 1, 5, 7, 9 and 13), and on the solicit child abuse material charge (the subject of count 11), I would impose a penalty of three years' imprisonment with effect from 4 May 2018. On the transmit child pornography charges, I would impose a sentence of six months' imprisonment. On count 6, concerning the transmission of indecent communications to a child under 16 years, and the matters the subject of the s 16BA notice, I would impose a sentence of 12 months' imprisonment. Under the State charge of possessing child exploitation material, I would impose a sentence of four months' imprisonment. Applying the totality principle to the Commonwealth charges, I would impose a sentence of four years' imprisonment on those charges. In addition, I would impose an extra four months' imprisonment on the State charge. I would set a non-parole period of half the total sentence, being a non-parole period of 26 months, the minimum period which I consider the respondent should serve in custody.
The sentencing judge ordered that the respondent comply with reporting obligations for five years after release under the Community Protection (Offender Reporting) Act 2005. I would order that the respondent comply with those reporting obligations for the remainder of his life after release.
In arriving at the above sentence, I have taken into account the matters discussed by Bathurst CJ in R v Linardon [2014] NSWCCA 247 at [57] where his Honour referred to the judgment of R A Hulme J in Minehan v The Queen [2010] NSWCCA 140 at [94]. Although there is no evidence of the respondent using the material for other than his own purposes, actual children were used in the creation of the material. There were a considerable number of different children depicted, and the sexual act portrayed was demeaning to the children concerned.

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