R v De Leeuw

150 DPP v Smith [2010] VSCA 215 Edwards v The Queen [2013] VSCA 188 Everett v The Queen [1994] HCA 49; 181 CLR 295 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Hanania v R [2012] NSWCCA 220 Heathcote (A Pseudonym) v R [2014] VSCA 37 Hili v The Queen [2010] HCA 45; 242 CLR 520 Hill v Western Australia [2009] WASCA 4 House v The King [1936] HCA 40; 55 CLR 499 James v R [2009] NSWCCA 62 Johnson v The Queen [2004] HCA 15; 78 ALJR 616 Majid v R [2010] NSWCCA 120 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mouscas v R [2008] NSWCCA 181 Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Booth [2009] NSWCCA 89 R v Cahill [2015] NSWCCA 53 R v Coffey [2003] VSCA 155; 6 VR 543 R v Cook; Ex parte Director of Public Prosecutions (Cth) [2004] QCA 469 R v DH; R v AH [2014] NSWCCA 326 R v Fulop [2009] VSCA 296; 236 FLR 376 R v Gent [2005] NSWCCA 370; 162 A Crim R 29 R v Harris [2015] NSWCCA 81 R v Hinchliffe [2013] NSWCCA 327 R v Jones [1999] WASCA 24; 108 A Crim R 50 R v Jongsma [2004] VSCA 218; 150 A Crim R 386 R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225; 82 NSWLR 60 R v Porte [2015] NSWCCA 174 R v Richard [2011] NSWSC 866 R v Stoupe [2015] NSWCCA 175 R v Sykes [2009] QCA 267 Smit v State of Western Australia [2011] WASCA 124 Category: Principal judgment Parties: Regina (Appellant) Paul Herman De Leeuw (Respondent) Representation: Counsel: Mr RJ Bromwich SC; Ms K Breckweg (Appellant) Mr T Gartelmann (Respondent)

Solicitors: Commonwealth Director of Public Prosecutions (Appellant) David Zammit & Associates (Respondent) File Number(s): 2013/235242 Decision under appeal Court or tribunal: Sydney District Court Date of Decision: 27 February 2015 Before: Graham ADCJ File Number(s): 2013/235242

Judgment

1. WARD JA: I have had the advantage of reading in draft the judgment of Johnson J. I agree, for the reasons articulated by his Honour, that the Crown appeals should be allowed, that the Crown has discharged its burden of persuading the Court that the residual discretion not to intervene should not be exercised, and that this Court should intervene to resentence the respondent. I also agree with the orders proposed by his Honour.
2. JOHNSON J: The Crown appeals under s.5D Criminal Appeal Act 1912 against sentences imposed upon the Respondent, Paul Herman de Leeuw, with respect to a number of child pornography offences.

The Offences and Sentences

1. Following pleas of guilty, the Respondent was sentenced by Graham ADCJ in the Sydney District Court on 27 February 2015 for the following offences (set out in chronological order): 1. Sequence 11 - between 11 August 2005 and 23 August 2005, using a carriage service to access child pornography contrary to s.474.19(1)(a)(i) Criminal Code (Cth), an offence punishable by a maximum penalty of 10 years' imprisonment; 2. Sequence 2 - between 16 January 2006 and 14 April 2010, using a carriage service to access child pornography contrary to s.474.19(1)(a)(i) Criminal Code (Cth), an offence punishable by a maximum penalty of 10 years' imprisonment; 3. Sequence 12 - between 15 April 2010 and 21 January 2013, using a carriage service to access child pornography contrary to s.474.19(1)(a)(i) Criminal Code (Cth), an offence punishable by a maximum penalty of 15 years' imprisonment; 4. Sequence 1 - on 2 August 2013, possessing child abuse material contrary to s.91H(2) Crimes Act 1900 (NSW), an offence punishable by a maximum penalty of 10 years' imprisonment.
2. The Respondent asked the sentencing Judge to take into account, in passing sentence for Sequence 1 (the s.91H(2) offence), two further offences: 1. On 2 August 2013, possession of child abuse material (located on a specified USB), contrary to s.91H(2) Crimes Act 1900 (NSW). 2. On 2 August 2013, possession of child abuse material (located on 117 CDs), contrary to s.91H(2) Crimes Act 1900 (NSW).
3. The sentencing Judge imposed the following sentences: 1. Sequence 11 - the first s.474.19(1)(a)(i) offence - imprisonment for 15 months commencing on 6 March 2015 and expiring on 5 June 2016; 2. Sequence 2 - the second s.474.19(1)(a)(i) offence - imprisonment for one year and nine months commencing on 6 March 2015 and expiring on 5 December 2016; 3. Sequence 12 - the third s.474.19(1)(a)(i) offence - imprisonment for two years commencing on 6 March 2015 and expiring on 5 March 2017; 4. Sequence 1 - taking into account the two offences on the Form 1, for the s.91H(2) offence - imprisonment for two years commencing on 6 March 2015 and expiring on 5 March 2017.
4. The total effective sentence comprised a term of imprisonment for two years, which his Honour directed to be served by way of an intensive correction order ("ICO") commencing on 6 March 2015 and expiring on 5 March 2017.

Facts of Offences

1. An Agreed Statement of Facts was tendered before the District Court. That statement revealed the following.
2. On 2 August 2013, agents of the Australian Federal Police ("AFP") executed a search warrant at the Respondent's home premises at Wyoming.
3. A preliminary review of computers and other electronic devices, DVDs and CDs located at the premises revealed a substantial amount of material identified by AFP agents as child pornography material as defined in s.473.1 Criminal Code (Cth). A number of items were taken from the premises during the execution of the search warrant.
4. The Respondent was questioned in relation to the material located, but he declined to comment. The CETS Scale
5. The contents of the seized items were analysed. Each image, video and/or document was classified into categories in accordance with the Australian National Victim Image Library ("ANVIL") schema, also known as the Child Exploitation Tracking System ("CETS") scale. The CETS scale contains six categories, which refer to the activity depicted in the child pornography material in the following way: 1. Category 1 - nudity or sexually suggestive posing with no sexual activity; 2. Category 2 - non-penetrative sexual activity between children, or solo masturbation by a child; 3. Category 3 - non-penetrative sexual activity between adult(s) and child(ren); 4. Category 4 - penetrative sexual activity between children or adult(s) and child(ren); 5. Category 5 - sadism, humiliation or bestiality; and 6. Category 6 - animated or virtual depictions of children engaged in sexual poses or activity.
6. ANVIL is a database of child pornography material which has been previously identified by officers from Australian law enforcement agencies. The child pornography material on the database is already classified into the above categories, together with their unique hash values. These hash values can be utilised for the analysis of electronic files. This database is continuously updated as new child pornography material is identified and classified. Sequence 1 - Possess Child Abuse Material Contrary to s.91H(2) Crimes Act 1900 (NSW)
7. By virtue of the definition of "child abuse material" in s.91FB Crimes Act 1900 (NSW), material that has been identified by AFP agents as "child pornography material" for the purpose of s.474.19 Criminal Code (Cth) is, by extension, identified as "child abuse material", with the CETS scale being utilised to categorise this material.

The Form 1 Offences

1. In addition to the child abuse material which was the subject of the s.91H(2) offence, a USB key containing 226 images and videos containing child abuse material was also located at the Respondent's premises, along with 117 CDs which contained an unknown amount of child abuse material. These items gave rise to the two s.91H(2) offences which were taken into account on a Form 1 on sentence for the State offence. Sequences 11, 2 and 12 - Three Offences of Using a Carriage Service to Access Child Pornography Contrary to s.474.19(1)(a)(i) Criminal Code (Cth)
2. During the subsequent forensic analysis of the computer hardware located at the Respondent's home, it was revealed that between 11 August 2005 and 23 August 2005, and again over a seven-year period between 16 January 2006 and 23 January 2013, the Respondent had used the Internet to access child pornography images, videos and documents by downloading the material from the GetBot file download service.
3. GetBot is a file download manager for Windows operating systems. It allows the user to selectively download files, web pages and even entire websites from the Internet. GetBot is free to download and use, however there is an option for the user to pay a fee to access added features and functionalities. Sequence 11
4. Some 97 temporary Internet files were downloaded from websites accessed between 11 August 2005 and 23 August 2005. These 97 images were classified as child pornography material, with 64 images falling within Category 1, 28 images within Category 3 and five images within Category 4.
5. This group of 97 images, which related to the first s.474.19(1)(a)(i) offence, did not form part of the material which was the subject of the s.91H(2) offence or the two associated Form 1 matters. Sequence 2
6. Between 16 January 2006 and 14 April 2010, a total of 31 images and videos, classified as child pornography material, located on a separate hard drive and computer tower, were downloaded using GetBot and saved in folders and subfolders.
7. The CETS scale classification of this material was as follows: Category Images Videos Total Category 1 - Erotic posing with no sexual activity 1 25 26 Category 2 - Sexual activity between children, or solo masturbation by a child 0 2 2 Category 3 - Non-penetrative sexual activity between adult(s) and child(ren) 0 3 3 Category 6 - Animated or virtual depictions of children engaged in sexual poses or activity 0 0 0 Total 1 30 31

1. Between 22 May 2000 and 14 April 2010, a total of 15,441 images, videos and documents classified as child pornography material were accessed and located in folders and subfolders in the GetBot file path, located on a SanDisk USB. It should be note that this time period extends beyond the period caught by the offence in Sequence 2.
2. The CETS scale classification of this material was as follows: Category Images Videos Documents Total Category 1 - Erotic posing with no sexual activity 12,178 21 0 12,199 Category 2 - Sexual activity between children, or solo masturbation by a child 660 19 0 679 Category 3 - Non-penetrative sexual activity between adult(s) and child(ren) 886 19 11 916 Category 4 - Penetrative sexual activity between children and between adult(s) and child(ren) 1,251 73 200 1,524 Category 5 - Sadism, humiliation or bestiality 31 2 1 34 Category 6 - Animated or virtual depictions of children engaged in sexual poses or activity 89 0 0 89 Total 15,095 134 212 15,441

Sequence 12

1. Between 15 April 2010 and 21 January 2013, a total of 2,192 images and videos classified as child pornography material were downloaded using GetBot and saved in folders and subfolders on a hard drive located within a computer tower.
2. The CETS scale classification of these items was as follows: Category Images Videos Total Category 1 - Erotic posing with no sexual activity 2,133 1 2,134 Category 2 - Sexual activity between children, or solo masturbation by a child 45 0 45 Category 3 - Non-penetrative sexual activity between adult(s) and child(ren) 0 7 7 Category 6 - Animated or virtual depictions of children engaged in sexual poses or activity 6 0 6 Total 2,184 8 2,192

1. Between 15 April 2010 and 21 January 2013, a total of 6,547 images, videos and documents classified as child pornography material were downloaded using GetBot and located on a SanDisk USB.
2. The CETS scale classification of that material was as follows: Category Images Videos Documents Total Category 1 - Erotic posing with no sexual activity 5,964 12 0 5,976 Category 2 - Sexual activity between children, or solo masturbation by a child 169 12 0 181 Category 3 - Non-penetrative sexual activity between adult(s) and child(ren) 74 7 1 82 Category 4 - Penetrative sexual activity between children and between adult(s) and child(ren) 83 78 0 161 Category 5 - Sadism, bestiality, humiliation 13 1 0 14 Category 6 - Animated or virtual depictions of children engaged in sexual poses or activity 133 0 0 133 Total 6,436 110 1 6,547

1. It should be noted that there is a significant overlap between the State and Commonwealth offences. All of the 24,211 items contained in the tables (at [23], [25], [27] and [29] above) are included in the schedule summarising the s.91H(2) offences (at [16] above).
2. A further 39 images, classified as child pornography material, were located on a hard drive, but these images did not have any associated created date. They did not form part of any of the s.474.19(1)(a)(i) offences or of the s. 91H(2) offence.
3. A sample of the child pornography material, with examples of images falling within each category on the CETS scale, was tendered in the sentencing proceedings with the folder being viewed by the sentencing Judge. The same folder was provided to this Court at the hearing of the appeal. Further reference will be made to this folder later in the judgment.

The Respondent's Subjective Circumstances

1. The Respondent was born in 1951, and was aged between 54 and 61 at the time of the offences. He was 62 years old at the time of sentence.
2. The Respondent has no prior criminal history.
3. Before the sentencing court were a report of Dr Olav Nielssen, psychiatrist, dated 1 July 2014, a presentence report dated 21 August 2014 prepared by Elizabeth Leafe, Community Corrections Officer, together with an ICO assessment report dated 18 February 2015 prepared by Hanna Franks, Community Corrections Officer.
4. Also tendered were a short report of Michael Corbett-Jones, psychologist, dated 4 June 2014, together with reports of Christine Oliver, counsellor, dated 11 September 2013 and 30 May 2014 and reports from Doug Sotheren, counsellor, dated 16 November 2013 and 5 June 2014. Also tendered was a report dated 11 June 2014 from Vera Grassecker, Gestalt psychotherapist and counsellor.
5. The Respondent gave evidence in the sentencing proceedings.
6. The Respondent left school at the age of 18 years, having completed the Higher School Certificate. He went on to complete an engineering degree, taking first class honours some years later. The Respondent has maintained full-time employment throughout his adult life, with his longest period of employment being with a large telecommunications company.
7. At the time he was sentenced, the Respondent was a self-funded retiree living alone in his own home on the Central Coast.
8. The Respondent married in 1982. His marriage ended in 2001 and there are two children of the marriage with whom he continues to have contact. The Respondent's parents are deceased and he has limited contact with his two siblings.
9. Dr Nielssen considered that the Respondent had begun to experience depression following the breakdown of his marriage in 2001. Following an attempted suicide with an overdose of over-the-counter medications in 2003, the Respondent was hospitalised and he saw mental health workers after he was discharged. Dr Nielssen noted that the Respondent continued to have symptoms of depression.
10. The Respondent informed Dr Nielssen that he had a long-standing attraction to prepubescent males, although he had never considered actual contact with a child and his interest was auto-erotic. Dr Nielssen diagnosed paraphilia (homosexual paedophilia).

Course of Proceedings in the District Court

1. Before moving to the grounds of appeal, it is appropriate to refer to aspects of the proceedings before the District Court, including the sentencing Judge's remarks on sentence.
2. The Respondent pleaded guilty to the offences in the Local Court on 11 February 2014 and the matters were committed to the District Court for sentence.
3. The sentencing hearing commenced before Graham ADCJ on 30 October 2014. Documentary material was tendered, with the matter being adjourned part-heard before his Honour to 12 December 2014.
4. When the matter resumed on 12 December 2014, the Respondent gave evidence. Thereafter, written and oral submissions were made by the Crown and for the Respondent on the question of sentence.
5. At all times, the Crown submitted that a full-time custodial sentence was the only appropriate sentencing disposition in this case.
6. After hearing submissions, the sentencing Judge enquired of counsel whether an ICO could or should be considered. After further submissions, his Honour delivered a short judgment, culminating in a referral of the Respondent for an assessment as to suitability for an ICO. After setting out the terms of the charges, his Honour said (AB27): "At the outset it has to be acknowledged that the nature of the offences and the maximum penalties available for those offences and, indeed, the increase in the Commonwealth penalty in 2010 reflect the seriousness with which parliament, the community and the courts, view offences of this type involving child pornography material. The result is that the courts have laid down principles for sentencing in relation to such offences which require the imposition of immediate sentences of custody in the absence of exceptional circumstances. In the present case there were in excess of 30,000 images involved and the offences took place over an extended period of time. While it is true that many of them involved images which would be classified at the bottom end of the scale as category 1- perhaps the overwhelming majority of them fell into that category- there were, nonetheless, a significant number of images in the higher categories, representing, by and large, the relatively more serious nature of the images in those higher categories."
7. After noting submissions which had been made, his Honour said (AB28): "After adjourning to consider appropriate sentences in this matter, I considered whether (at least from a technical or statutory point of view) these were offences in respect of which intensive correction orders could be made. I have reached the conclusion that, whether by way of concurrency or aggregation through accumulation of sentences in this case, the various factors relevant to sentencing would produce a sentence in the order of two years imprisonment or less."

The Grounds of Appeal

1. By Notice of Appeal filed 27 March 2015, the Commonwealth Director of Public Prosecutions contended that the sentences for the Commonwealth offences were manifestly inadequate, in particular, but not only, because the learned sentencing Judge: 1. failed to give due regard to totality in sentencing in accordance with Pearce v The Queen [1998] HCA 57; 194 CLR 610; 2. failed to accumulate to any degree any of the sentences reflective of separate offending and/or to impose any separate penalty for the Commonwealth offences; 3. failed to have appropriate regard to general and specific deterrence; 4. erred in the approach to the rehabilitation prospects of the Respondent.
2. By Notice filed 1 April 2015, the Deputy Director of Public Prosecutions (NSW) appealed against the sentence imposed for the offence under s.91H(2) Crimes Act 1900 (NSW) upon the ground that the sentence was manifestly inadequate.
3. Mr Gartelmann, counsel for the Respondent, conceded that the sentencing Judge had erred in failing properly to determine sentences for the individual offences before considering questions of accumulation and concurrency, so as properly to derive the overall term before considering how it was to be served.
4. However, counsel for the Respondent resisted the appeals on other bases and submitted that this Court should, in any event, dismiss the Crown appeal in the exercise of the residual discretion.

Sentencing for Commonwealth and State Child Pornography Offences

1. This Court has recently made general observations concerning the sentencing of offenders for Commonwealth and New South Wales child pornography offences: R v Porte [2015] NSWCCA 174 at [51]-[81]. Topics covered in that judgment included: 1. the different vices addressed in the Commonwealth access offence under s.474.19 Criminal Code (Cth) and State possession offences, such as s.91H(2) Crimes Act 1900 (NSW): R v Porte at [55]-[56], [157]; 2. the increased maximum penalties for these offences enacted by the Commonwealth Parliament (in 2010) and the New South Wales Parliament (in 2008): R v Porte at [57]-[58]; 3. general sentencing principles concerning child pornography offences which have emerged from decisions of intermediate appellate courts throughout Australia, where emphasis has been placed upon the paramount importance of general deterrence and denunciation, and the limited weight to be given to prior good character, together with the need to consider the objective gravity of the particular offences and to keep in mind that these are not victimless crimes: R v Porte at [59]-[72]; 4. the fact that prior good character and positive personal antecedents, and a reduced or absent need for personal deterrence, are relatively commonplace amongst offenders in possession of child pornography and that significant weight is to be given to general deterrence and correspondingly less weight to matters personal to the offender: R v Porte at [126]; 5. the fact that a common feature on sentence for this class of offence is the tender of material concerning steps taken with respect to counselling and treatment in aid of rehabilitation - whilst this aspect is important, undue focus should not be placed upon it at the expense of other legitimate and important sentencing considerations including denunciation and general deterrence: R v Porte at [71]-[72]; 6. the use to be made, in an assessment of objective gravity, of the CETS scale, relevant statutory definitions and an examination by a sentencing court of sample images: R v Porte at [73]-[81], ]113]-[122]; 7. the importance of attention being given to issues of accumulation, concurrency and totality when sentencing for Commonwealth and State child pornography offences: R v Porte at [96], [98]-[100], [157]; 8. the importance of ensuring reasonable proportionality between the objective circumstances of the offences and the sentences actually imposed, with the offender's subjective circumstances not being allowed to overshadow the objective gravity of the crimes: R v Porte at [128]; 9. the need for care in avoiding the inappropriate use of an ICO for serious child pornography offences where the appropriate form of punishment should involve immediate incarceration: R v Porte at [129]-[130].

Approaching the Grounds of Appeal

1. Each of the Commonwealth and State appeals advance a single ground of appeal - that the sentences imposed were manifestly inadequate.
2. It is appropriate to consider the particulars of the Commonwealth's ground of appeal, before turning directly to consider the claim of manifest inadequacy.

First Particular - Failure to Give Sufficient Weight to the Nature and Circumstances of the Offending Crown Submissions

1. Whilst noting that the sentencing Judge had adverted to the relevant maximum penalties and the seriousness with which child pornography offences are considered, and had acknowledged that immediate sentences of imprisonment are to be imposed in the absence of exceptional circumstances, the Crown submitted that the sentences actually imposed failed adequately to reflect the seriousness and circumstances of the offending.
2. The Crown pointed in particular to the following features of the Respondent's offences: 1. he possessed a total 32,656 items of child pornography material, including images and videos; 2. the degree of depravity of a large volume of the material in the Respondent's possession was extremely high: 1. over 3,400 items, including 599 videos, were in Categories 4 and 5 on the CETS scale; 2. more than half of all videos possessed were classified as Category 4 or 5; 3. in terms of the three Commonwealth offences, the Respondent accessed over 24,000 still images, videos and documents, of which over 1,700 were classified in the worst levels of Categories 4 and 5, 1. the images and videos featured many different victims of predominantly prepubescent or adolescent age; 2. the Respondent's conduct was not isolated but occurred over a very lengthy period covering over seven years - the lengthy period of the offending obviated any argument that the Respondent did not receive any gratification from the conduct; 3. the offending involved two distinct forms of offending and several instances of separate offending; 4. despite being the lowest classification level, Category 1 material cannot be said to be surreptitious or innocuous encompassing as it does a wide range of activity: Heathcote (A Pseudonym) v R at [24]-[25]; DPP (Cth) v Zarb at [30]. The Respondent's Submissions
3. Mr Gartelmann submitted that the sentencing Judge had noted properly that sentences of full-time imprisonment were generally required for offences relating to child pornography other than in exceptional circumstances. He submitted that the sentencing Judge assessed the objective circumstances of the Respondent's offences and had concluded that custodial sentences would ordinarily be required.
4. Counsel submitted that the sentencing Judge had found that the Respondent's circumstances were exceptional. It was submitted that the determination of a primary Judge to impose an exceptional sentence should be respected where the circumstances of the case are properly found to be exceptional: R v DH; R v AH [2014] NSWCCA 326 at [1], [104].

Second Particular - Failure to Give Due Regard to Totality in Sentencing in Accordance with Pearce v The Queen

Third Particular - Failure to Accumulate to any Degree any of the Sentences Reflective of Separate Offending and/or to Impose any Separate Penalty for the Commonwealth Offences Crown Submissions

1. The Crown submitted that the sentences imposed in this case did not reflect the totality of the offending before the Court. It was submitted that both the length of the terms of imprisonment fixed for each offence, and the method by which the terms of imprisonment were to be served, were manifestly inadequate given the general principles applicable to sentencing for child pornography offences and the nature and circumstances of the offending in this case.
2. The Crown submitted that, in proceeding to structure a sentence in the manner in which his Honour did, the sentencing Judge sentenced according to a desired outcome, rather than by imposing sentences which were appropriate for each of the offences and then imposing a degree of accumulation between the offences to reflect the different forms of criminality and instances of offending.
3. The Crown submitted that this failure resulted in the imposition of individual sentences that did not give due regard to the principle of totality in sentencing.
4. The Crown submitted that the sentencing Judge erred by making no orders giving rise to accumulation as between each charge and/or by failing to impose a separate penalty for the Commonwealth offending.
5. It was submitted that the failure to order any accumulation did not address the existence of separate instances of access offending and, importantly, failed to reflect the distinct nature of the access and possession offences, involving as they did separate acts of serious criminality. It was submitted that these offences are separate and distinct, and that it is entirely appropriate to impose some level of accumulation as between sentences: James v R [2009] NSWCCA 62.
6. The Crown submitted further that the sentencing Judge made it clear in his remarks on sentence that, by electing to impose complete concurrency as between sentences, he would be able to achieve a sentence which did not exceed the maximum two-year term of imprisonment required to impose an ICO.
7. The Crown submitted that the sentences imposed in respect of the Commonwealth offences necessarily represented a degree of leniency because they were "rolled up" charges, each involving numerous incidents of access that were each capable of constituting separate offences. Accordingly, it was submitted that the criminality involved in each access charge was greater than with a charge involving only one episode of criminal conduct: R v Richard [2011] NSWSC 866 at . For that reason alone, the Crown submitted that a degree of accumulation was required as between the sentences. The Respondent's Submissions

Fourth Particular - Failure to Have Appropriate Regard to General and Specific Deterrence Crown Submissions

1. The Crown submitted that the imposition of an ICO did not sufficiently meet the needs of general deterrence for this offending. Whilst the sentencing Judge had referred to the need for general deterrence and denunciation in sentencing for these offences, he had determined that an ICO was more appropriate than a sentence involving full-time custody.
2. The Crown submitted that the sentencing Judge did not articulate in what way an ICO would serve the purpose of general deterrence. Further, he permitted the circumstances personal to the Respondent, in particular his progress in, and need for rehabilitation, to swamp the primacy of general deterrence as a sentencing principle.
3. In addition, it was submitted that the Respondent's rehabilitation was not so exceptional as to place him in a different category to others with rehabilitative needs sentenced for the same offending.
4. The Crown submitted that, given the sentences imposed and the lack of a separate sentence for any of the Commonwealth offences and the failure to order accumulation, the practical effect was that there was no substantial general deterrent effect at all for the offending. The Respondent's Submissions
5. Mr Gartelmann submitted that the sentencing Judge had noted the need for general and specific deterrence and denunciation, and had noted that the use of an ICO involved a considerable degree of leniency, but nonetheless imposed strict obligations and retained a punitive effect.
6. Mr Gartelmann relied upon the decision of this Court in R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225; 82 NSWLR 60 at 84 [107], [109] in support of these propositions.
7. Counsel submitted that, in the event that the overall term had been properly determined to fall at two years or less and that it was open to the sentencing Judge to find that the case was exceptional, the imposition of an ICO may have adequately fulfilled the purposes of punishment, including that of general deterrence. Determination
8. Reference was made in R v Porte at [59]-[60] (and at [70]-[72] above) to the substantial body of authority which has emphasised that general deterrence and denunciation are paramount considerations on sentencing for child pornography offences. Although the sentencing Judge referred to these factors, the gravamen of the Crown submission is that the sentences actually imposed did not, in truth, give effect to these matters.

Fifth Particular - Error in the Approach to the Rehabilitation Prospects of the Respondent Crown Submissions

1. The Crown submitted that the sentencing Judge gave undue weight to the Respondent's prospects of rehabilitation, and allowed his future rehabilitative needs to eclipse the paramount importance of general deterrence.
2. The Crown pointed to the sentencing Judge's statement that the Respondent had sought therapy and counselling well before he was arrested, and had acknowledged his addiction to child pornography material after his arrest, thereby enabling that treatment to proceed in a more focused and informed basis.
3. The Crown submitted that this finding was at odds with the fact that the Respondent was assessed as having a low/medium risk of reoffending. Reference was made to the general conclusions of Dr Nielssen, who opined that whilst the Respondent was at a low risk of reoffending based, inter alia, on the general statistics relating to recidivism amongst child pornography offenders, he was sexually aroused by images of prepubescent boys, had previously destroyed collections of his material, only to start collecting again, and his previous long-term counselling had no effect on his offending behaviour as he continued to offend during the pre-arrest counselling period.
4. The Crown submitted that it was difficult to conclude, against this background, that the Respondent's prospects of rehabilitation could be classified as good, or that specific deterrence carried little or no weight. The Respondent's Submissions
5. Counsel for the Respondent submitted that the question of the weight to be given to a particular sentencing consideration, such as prospects of rehabilitation, lies within the discretion of the primary Judge, with the circumstances in which appellate intervention will be justified being narrowly confined: Majid v R [2010] NSWCCA 120 at [40]. Mr Gartelmann submitted that, generally, a contention of error in the adequacy of the weight given to a sentencing consideration can only be tested by an examination of the sentence itself: Hanania v R [2012] NSWCCA 220 at [30].
6. Counsel submitted that there is a public interest in not interfering in a process of demonstrated rehabilitation, and that error had not been demonstrated in this respect. In response to the Crown submission concerning the Respondent's risk of reoffending, Mr Gartelmann pointed to the assessments of low-medium risk, with their being no inconsistency between the evidence and the sentencing Judge's findings concerning the Respondent's prospects of rehabilitation. Determination

Has the Crown Established Manifest Inadequacy in this Case?

1. The submissions of the parties have been considered under a number of headings concerning the particulars of the Crown's single ground of appeal - that the sentences in this case were manifestly inadequate. It is appropriate now to turn to that topic.
2. It is not necessary to rehearse the submissions made under the various headings considered so far. The Court may move to consideration of the adequacy of the sentences imposed.
3. The s.91H(2) offence involved possession of a very large number of images which had been stored on various devices at the Respondent's home. Although it is not possible, on the material before this Court, to quantify with any precision the number of children involved, it can be said that many young boys are depicted in the sample images alone. It may be inferred that the number of children depicted in the Respondent's substantial holdings of child pornography material far exceed the number in the sample images.
4. The fact that a large number of the images and videos fell within Category 1 on the CETS scale is of limited assistance to the Respondent.
5. Reference was made earlier to the comments of Neave and Kyrou JJA in DPP (Cth) v Zarb (see [85] above). A similar observation may be made concerning the material possessed by the Respondent, with this process being further informed by an examination of the sample images (see [86]-[94] above).
6. The s.474.19(1)(a)(i) offences involved the Respondent accessing material over a period of years. It involved a course of conduct. Although the Respondent used a carriage service to access child pornography material which he then downloaded for possession and subsequent use, it would be wrong to approach sentencing in this case upon the basis that entirely concurrent sentences were appropriate as between the three Commonwealth offences and the State offence. The Commonwealth and State offences overlap, but they are not identical. The first s.474.19(i)(a)(i) offence (in 2005) does not overlap at all with the State offence (see [20]-[21] above.
7. The Respondent gained access to the material through a carriage service. However, he undertook systematic saving of material to various hard drives. It should also be observed that the Respondent deleted previous holdings of child pornography material. It is clear that his accessing of child pornography material between 2005 and 2013 involved far more material than that ultimately found in his possession in August 2013. The different vices to which the offences are directed remain significant: R v Porte at [55]-[56].

Should the Discretion to Resentence the Respondent be Exercised?

1. The Crown has established error. It remains incumbent on the Crown to demonstrate that the discretion to resentence the Respondent should be exercised: CMB v Attorney General for NSW [2015] HCA 9; 89 ALJR 407 at 415 [33]. Evidence and Submissions
2. Mr Gartelmann read a number of affidavits to be taken into account on the exercise of the residual discretion and resentencing. These were: 1. an affidavit of the Respondent sworn 26 May 2015; 2. an affidavit of the Respondent's solicitor, David Patrick Zammit, sworn 27 May 2015; 3. an affidavit of Anne Love sworn 26 May 2015.
3. In his affidavit, the Respondent said that he had continued to see his counsellors, Mr Sotheren, Ms Oliver and Ms Grassecker and he was also seeing a psychologist, Mary West, on a monthly basis. Ms West is a psychologist who specialises in treatment of child pornography issues and she has been assisting the Respondent in this respect.
4. The Respondent said that he had been complying with the terms of his ICO. He performs community service knitting dog blankets for 7.5 hours each week or 32 hours each month.
5. The Respondent stated that, when served with the notice of the Crown appeal, he went into a panic and became emotional. He has experienced lack of sleep, recurring nightmares and suicidal thoughts with shortness of breath and other features.
6. The Respondent stated that, since sentencing, he has continued to attend the Erina Community Baptist Church, to which he has been going since 2004. He has a close relationship with Ms Love whom he had met at church in 1997. Ms Love provides support to the Respondent.
7. The Respondent said that he had experienced flashbacks to bullying which he experienced at school, since the Crown appeal had been on foot. He experiences fear at the prospect of going to prison because of his school memories .
8. The Respondent states that he has been "clean" with respect to child pornography since he was sentenced, and has developed coping mechanisms in this regard.
9. The affidavit of Mr Zammit attaches a further report of Ms Oliver dated 12 May 2015, which confirms his ongoing counselling and other aspects referred to in the Respondent's affidavit. Ms Oliver states that the interruption of the Respondent's process of counselling may have the effect of inhibiting his progress. A further report of Mr Sotheren dated 19 May 2015 states that the Respondent has begun a well-constructed program of rehabilitation which should be allowed to continue.

Resentencing the Respondent

1. Already contained in this judgment is a sufficient narrative of the objective gravity of the Respondent's offences and his subjective circumstances, including the additional evidence tendered and relied upon in this Court.
2. In the circumstances of the present case, I am satisfied that a greater sentence should be imposed for the s.91H(2) offence which involved possession of a very substantial amount of child abuse material.
3. It is necessary to keep in mind the fact that there are three offences under s.474.19(1)(a)(i), with the offences up to 2010 carrying a maximum penalty of 10 years' imprisonment, and the later offence bearing the increased maximum penalty of 15 years.
4. I am persuaded that the sentences to be imposed for the three Commonwealth offences should be entirely concurrent. They reflect a course of conduct over a period of years.
5. As mentioned earlier, the Commonwealth and State offences involved different vices. This aspect bears, in particular, upon the issue of accumulation and concurrency as between the Commonwealth offences and the State offence. Further, the first Commonwealth offence (the 2005 offence) does not overlap at all with the State offence.
6. I am satisfied that a measure of accumulation should apply as between the State offence and the Commonwealth offences, with a period of six months to operate in this respect.
7. It is necessary for the Court to adopt the different sentencing regimes applicable under Commonwealth and New South Wales law. Further, where sentences are being imposed for Commonwealth and State offences, it is necessary for the Court to comply with s.19(3) Crimes Act 1914 (Cth).
8. In calculating sentences, a 25% discount should be applied for the Respondent's early plea of guilty to the State offence with a similar allowance being applied to acknowledge his facilitating the course of justice concerning the Commonwealth offences.
9. In determining these sentences, I have taken into account all of the Respondent's subjective circumstances as mentioned earlier in this judgment. But for these subjective factors, the sentences to be imposed upon the Respondent would have been greater.
10. For the s.91H(2) offence, and taking into account the two offences on the Form 1, a sentence of imprisonment for two years and six months should be fixed. A finding of special circumstances should be made resulting from the level of accumulation to be applied and the Respondent's health issues and the prospect that imprisonment will be difficult for him. A non-parole period of 15 months should be set.

Amendments 10 July 2015 - paragraph 158 - changed 'Mr Love' to 'Ms Love' 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: 10 July 2015