132 A Crim R 237
CMB v Attorney General for NSW [2015] HCA 9
89 ALJR 407
Dinsdale v The Queen [2000] HCA 54
202 CLR 321
R v Zamagias [2002] NSWCCA 17
Director of Public Prosecutions (Cth) v Guest [2014] VSCA 29
DPP (Cth) v D'Alessandro [2010] VSCA 60
Source
Original judgment source is linked above.
Catchwords
132 A Crim R 237
CMB v Attorney General for NSW [2015] HCA 989 ALJR 407
Dinsdale v The Queen [2000] HCA 54202 CLR 321R v Zamagias [2002] NSWCCA 17
Director of Public Prosecutions (Cth) v Guest [2014] VSCA 29
DPP (Cth) v D'Alessandro [2010] VSCA 60181 CLR 295
Green v The QueenQuinn v The Queen [2011] HCA 49244 CLR 462
Hanania v R [2012] NSWCCA 220
Heathcote (A Pseudonym) v R [2014] VSCA 37
Hili v The Queen [2010] HCA 45242 CLR 520
Hill v Western Australia [2009] WASCA 4
House v The King [1936] HCA 4055 CLR 499
James v R [2009] NSWCCA 62
Johnson v The Queen [2004] HCA 1578 ALJR 616
Majid v R [2010] NSWCCA 120
Markarian v The Queen [2005] HCA 25228 CLR 357
Mouscas v R [2008] NSWCCA 181
Pearce v The Queen [1998] HCA 57194 CLR 610
R v Booth [2009] NSWCCA 89
R v Cahill [2015] NSWCCA 53
R v Coffey [2003] VSCA 1556 VR 543
R v CookEx 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
Ms K Breckweg (Appellant)
Mr T Gartelmann (Respondent)
Judgment (24 paragraphs)
[1]
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)
[2]
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
[3]
Judgment
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.
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.
[4]
The Offences and Sentences
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.
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).
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.
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.
[5]
Facts of Offences
An Agreed Statement of Facts was tendered before the District Court. That statement revealed the following.
On 2 August 2013, agents of the Australian Federal Police ("AFP") executed a search warrant at the Respondent's home premises at Wyoming.
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.
The Respondent was questioned in relation to the material located, but he declined to comment.
The CETS Scale
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.
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)
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.
[6]
The Form 1 Offences
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)
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.
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
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.
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
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.
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
[7]
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.
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
[8]
Sequence 12
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.
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
[9]
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.
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
[10]
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).
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.
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.
[11]
The Respondent's Subjective Circumstances
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.
The Respondent has no prior criminal history.
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.
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.
The Respondent gave evidence in the sentencing proceedings.
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.
At the time he was sentenced, the Respondent was a self-funded retiree living alone in his own home on the Central Coast.
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.
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.
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).
[12]
Course of Proceedings in the District Court
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.
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.
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.
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.
At all times, the Crown submitted that a full-time custodial sentence was the only appropriate sentencing disposition in this case.
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."
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."
[13]
The Grounds of Appeal
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.
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.
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.
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.
[14]
Sentencing for Commonwealth and State Child Pornography Offences
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].
[15]
Approaching the Grounds of Appeal
Each of the Commonwealth and State appeals advance a single ground of appeal - that the sentences imposed were manifestly inadequate.
It is appropriate to consider the particulars of the Commonwealth's ground of appeal, before turning directly to consider the claim of manifest inadequacy.
[16]
First Particular - Failure to Give Sufficient Weight to the Nature and Circumstances of the Offending
Crown Submissions
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.
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
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.
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].
[17]
Second Particular - Failure to Give Due Regard to Totality in Sentencing in Accordance with Pearce v The Queen
[18]
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
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.
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.
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.
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.
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.
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.
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
[19]
Fourth Particular - Failure to Have Appropriate Regard to General and Specific Deterrence
Crown Submissions
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.
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.
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.
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
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.
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.
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
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.
[20]
Fifth Particular - Error in the Approach to the Rehabilitation Prospects of the Respondent
Crown Submissions
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.
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.
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.
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
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].
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
[21]
Has the Crown Established Manifest Inadequacy in this Case?
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.
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.
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.
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.
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).
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.
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].
[22]
Should the Discretion to Resentence the Respondent be Exercised?
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
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.
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.
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.
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.
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.
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 .
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.
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.
[23]
Resentencing the Respondent
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.
[24]
Amendments
10 July 2015 - paragraph 158 - changed 'Mr Love' to 'Ms Love'
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Decision last updated: 10 July 2015
Forensic analysis of three computer hardware devices seized by AFP agents on 2 August 2013 (two USB keys and a computer tower) revealed that the Respondent was in possession of 32,656 images, videos and documents classified as child abuse material at the time of his arrest.
In addition, he was also found to be in possession of a DVD entitled "Barnens O The Children's Island" which features Category 4 child abuse material. The Australian Film Classification Board had classified this DVD as "Refused Classification" ("RC"), thereby banning it. RC material cannot be sold, hired, advertised or legally imported into Australia. It contains content that is very high in impact and falls outside generally accepted community standards.
The material which was the subject of the s.91H(2) count is summarised in the following table:
Category Images Videos Documents Total
Category 1 - nudity or sexually suggestive posing with no sexual activity 23,452 202 - 23,654
Category 2 - Sexual activity between children or solo masturbation by a child (non-penetrative) 1,689 124 8 1,821
Category 3 - non-penetrative sexual activity between child(ren) and adult(s) 1,402 114 13 1,529
Category 4 - penetrative sexual activity between children and between children and adult(s) including intercourse, cunnilingus and fellatio 2,573 574 210 3,357
Category 5 - sadism, bestiality, humiliation 91 25 1 117
Category 6 - animated or virtual depictions of children engaged in sexual poses or activity 274 - - 274
Documents depicting sexual activity between adults and children 1,896 1,896
Child abuse material 8
Total 29,481 1,039 2,128 32,656
The Respondent informed Dr Nielssen that he had collected images of boys since his youth and later found an abundance of material available on the Internet. He found he could download great quantities of the material with file-sharing applications. The Respondent informed Dr Nielssen that he had destroyed entire collections only to start again.
The Respondent had been receiving treatment from a number of persons, including a psychologist during the period July 2008 to November 2012 (Mr Corbett-Jones), a counsellor since July 2008 (Ms Oliver), another counsellor since March 2009 (Mr Sotheren) and a psychotherapist for the four years prior to sentence (Ms Grassecker).
Although the Respondent had been receiving counselling for a number of years, he had not disclosed to any counsellor his use of child pornography until after his arrest. The Respondent said in evidence that he feared that if he informed his counsellors, he would be rejected.
The Respondent believed that he had been the victim of ritual and sexual abuse in childhood. Dr Nielssen suggested that the Respondent's memory of abuse might have been induced by suggestion during psychotherapy.
The Respondent told Dr Nielssen that he had known what he was doing was wrong, but did not really consider its seriousness. The presentence report noted that the Respondent had acknowledged the seriousness of his conduct, but failed to understand the impact of possessing child abuse material. The ICO assessment report noted that the Respondent's attitude had changed and he displayed some insight into the impact of the offences.
An actuarial risk assessment indicated that the Respondent was a low/medium risk of reoffending. The presentence report and ICO assessment report indicated that consultation with a Department of Corrective Services psychologist suggested that the Respondent fell into the low-risk category of reoffending. Dr Nielssen expressed a similar opinion.
The ICO assessment report noted that the Respondent had taken preventative steps to address future offending. Both the departmental psychologist and Dr Nielssen considered that the Respondent would benefit from counselling and further intervention.
After recounting further considerations bearing upon the question whether an ICO assessment should be made, the sentencing Judge said (AB31):
"Without indicating at this stage whether a successful assessment would necessarily be acted upon, the Court would certainly be significantly at an advantage in having such an assessment available to it. Accordingly, on each of the four charges, the offender is convicted. I declare that the Court intends to impose sentences of imprisonment which would not exceed two years and I request an intensive corrections order assessment."
The proceedings were adjourned to 27 February 2015 for the purpose of an ICO assessment being undertaken.
When the proceedings resumed on 27 February 2015, the ICO assessment report was tendered and further submissions were made. The Crown maintained the submission that the circumstances of the case called for a custodial sentence by way of full-time imprisonment as the only appropriate penalty.
At the conclusion of submissions, the sentencing Judge proceeded to deliver remarks on sentence.
His Honour referred to the history of proceedings to that point and outlined the charges and the facts of the offences. His Honour observed that the three Commonwealth offences covered a period between 2006 and 2013, but that this was effectively "a continuing episode" explained by separate penalties applying to different periods (ROS4, 27 February 2015).
After referring to other features of the case, including the Respondent's subjective circumstances, his Honour said (ROS8):
"The question that arises is whether the circumstances here, not only those that have been canvassed in these and previous remarks, but also those which appear in the submissions and in the evidence before the Court, justify the Court in considering that the circumstances of this case are sufficiently exceptional to impose an order less than fulltime custody. In considering that issue, it is clear in my view that the only relevant option which could be considered would be the option of an Intensive Corrections Order, anything less, such as a suspended sentence, being inadequate to reflect the objective seriousness of the offences and the need for both general and specific deterrence."
The sentencing Judge referred to aspects of an ICO and then returned to the present case (ROS10-11):
"This is not an easy case in which to determine whether the circumstances do fall into that category of exceptional circumstances. Ultimately, however, it seems to me that the measure of rehabilitation and the prior recognition by the offender of his need for assistance and counselling do put the case into that category of exceptional circumstances. He was a person who, for many years, had experienced these urges and acted upon them by committing offences, but he did not wait until the police came to arrest him before commencing to take action to try and change his life.
It is, of course, regrettable that he was not as open with his counsellor and supporters as he should have been, but nonetheless it is clear that he had taken appropriate and firm, though perhaps incomplete, steps to start addressing his problem. Once he was arrested, that attempt stepped up to a more complete engagement with the counsellor and his supporters.
The question of exceptional circumstances also needs to be balanced in relation to the objective seriousness of the offences. The duration of the offending and the number of images here certainly would cause a Court to be very careful indeed before concluding that the circumstances were sufficiently exceptional. Even allowing for the vast number of category one images, the sheer number of images in the more serious categories is, of course, a matter of significant concern and does suggest a relatively higher level of objective criminality than might sometimes be the case. Nonetheless, giving proper weight to that consideration and its concomitant need for general and special deterrence and denunciation, I am persuaded that the Court is, in these circumstances, in a position to impose sentences which would fall within the two year limit for consideration of Intensive Corrections Orders and that, in respect of each of those sentences, it would be appropriate to permit the sentences to be served in that fashion. I now propose to impose those sentences."
His Honour then imposed the individual sentences referred to above (at [5]) and directed that all sentences were to be served concurrently and by way of an ICO.
After passing the sentences and making orders, the sentencing Judge referred to issues of accumulation and totality (ROS12):
"I should also acknowledge the submission made by the Crown as to the need for some partial accumulation which is set out in the Crown's written submissions. Clearly some measure of accumulation would ordinarily be appropriate, though it is also significant to note that there is a considerable overlap between the offences so that any measure of accumulation would be relatively modest.
In any event, the principle of totality would appropriately lead the Court here to make an order with the outer limits of two years which are reflected in two of the sentences and with lesser sentences in respect of two of the other charges. In the Court's view, an order for concurrency is the appropriate order to be made, particularly having regard to the principle of totality."
In submissions made for the purpose of the present appeal, the Commonwealth Director of Public Prosecutions, Mr Bromwich SC, who appeared with Ms Breckweg for the Appellants, identified a number of sentencing principles relating to child pornography offences, which appear in the next paragraph of this judgment. Mr Gartelmann did not dispute the accuracy of these principles. These principles are consistent with statements of this Court in R v Porte.
Appellate courts throughout Australia have consistently stated that the following propositions apply to sentencing for child pornography offences:
1. Unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted: R v Jongsma [2004] VSCA 218; 150 A Crim R 386 at 395 [14]; Hill v Western Australia [2009] WASCA 4 at [28]; R v Booth [2009] NSWCCA 89 at [48]; R v Sykes [2009] QCA 267 at [24]; DPP v Groube [2010] VSCA 150 at [24]; DPP (Cth) v D'Alessandro [2010] VSCA 60; 26 VR 477 at 483-4 [21]; Director of Public Prosecutions (Cth) v Guest [2014] VSCA 29 at [23]-[24]; DPP v Smith [2010] VSCA 215 at [23], [26]-[29].
2. The objective seriousness of the offending is ordinarily determined by reference to the following factors:
1. the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;
2. the number of items or images possessed;
3. whether the material is for the purpose of sale or further distribution;
4. whether the offender will profit from the offence;
5. in the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised;
6. the length of time for which the pornographic material was possessed: R v Jongsma at 400 [28]; R v Gent [2005] NSWCCA 370; 162 A Crim R 29 at 49 [99]; DPP (Cth) v D'Alessandro at 483-484 [21]; DPP (Cth) v Guest at [25].
1. General deterrence is the primary sentencing consideration for offending involving child pornography: Assheton v R [2002] WASCA 209; 132 A Crim R 237 at 246-247 [35]-[36]; DPP (Cth) v D'Alessandro at 483-484 [21]; Edwards v The Queen [2013] VSCA 188 at [22]; DPP (Cth) v Guest at [25]; Heathcote (A Pseudonym) v R [2014] VSCA 37 at [40]; DPP (Cth) v Zarb [2014] VSCA 347 at [34].
2. Less or limited weight is given to an offender's prior good character: R v Gent at 44 [65]; DPP (Cth) v D'Alessandro at 483-484 [21]; Mouscas v R [2008] NSWCCA 181 at [37].
3. Offending involving child pornography occurs on an international level and is becoming increasingly prevalent with the advent of the Internet as a means of allowing people to access and obtain child pornography: R v Jones [1999] WASCA 24; 108 A Crim R 50 at 51 [2]; Assheton v R at 246-247 [35]-[36].
4. Offending involving child pornography is difficult to detect given the anonymity provided by the Internet: Mouscas v R at [31]; R v Booth at [29].
5. The possession of child pornography material creates a market for the continued corruption and exploitation of children: R v Coffey [2003] VSCA 155; 6 VR 543 at 552 [30]; R v Cook; Ex parte Director of Public Prosecutions (Cth) [2004] QCA 469 at [21]; R v Jongsma at 395 [14]; Heathcote (A Pseudonym) v R at [40].
6. There is a paramount public interest objective in promoting the protection of children as the possession of child pornography is not a victimless crime - children are sexually abused in order to supply the market: R v Jones at 52 [9]; DPP (Cth) v D'Alessandro at 484 [23].
7. The fact that an offender does not pay to access a child pornography website or was not involved in the distribution or sale of child pornography does not mitigate the offending: R v Coffey at 552 [30].
In determining these appeals, the various propositions emerging from R v Porte, together with the above statement of principles, will be applied.
Mr Gartelmann submitted that it was reasonably open, in the circumstances of this case, to make a finding of exceptional circumstances. He submitted that, in considering whether the case was exceptional, his Honour had referred to the Respondent's age and lack of previous convictions, his recognition that he needed assistance and counselling although he did not disclose the real problem prior to his arrest, his full engagement with his counsellors since his arrest and his progress with rehabilitation during the substantial period on bail.
Mr Gartelmann pointed to the sentencing Judge's statement that the Respondent's rehabilitation was ongoing, and that an ICO would allow him to continue to rehabilitate in the community and retain the benefit of his support group. The reasons for imposing an ICO included that the Respondent's progress in rehabilitation could be encouraged to continue in the community where he would maintain access to those treating and supporting him.
Mr Gartelmann submitted that the finding that the Respondent's case was exceptional may have been open in the circumstances of the case, even if the overall term had been determined properly at first instance to be two years or less.
Determination
The sentencing Judge did not refer at any length or in any detail to the nature of the child pornography material in this case. The particular nature and content of material is important in considering the gravity of each case: R v Porte at [73]-[81].
The s.91H(2) offence involved a very substantial number of items, exceeding 32,000.
The classification of material under the CETS scale is informative, but should not be misunderstood. In R v Porte, this Court said at [77]:
"The classification of material in accordance with the CETS scale assists the process of assessment of the objective seriousness of an offence. Although Categories 1 to 5 on the CETS scale involve escalating gravity of the conduct depicted in the images, it should not be assumed that Category 1 material is mild in content. Despite being the lowest classification level, Category 1 material itself is capable of possessing significant gravity. In Zarb, Neave and Kyrou JJA observed at [30], after viewing images:
'Although level 1 covers images which are not as depraved and abusive as the images allocated to higher levels, some of the images we viewed involved dreadful examples of the abuse of the child victims, who were arranged in sexualised poses displaying their genitalia. The images at the higher end of the CETS Scale depicted horrifying degradation and exploitation of young children'."
I have examined the sample images provided to this Court, being the folder handed to the sentencing Judge at first instance. Examination of the sample images assists a sentencing court, and this Court on appeal, to form an impression of the material and its degree of depravity: Smit v State of Western Australia [2011] WASCA 124 at [17]; R v Porte at [76], [114].
A short description of some of the sample images will serve to inform the sentencing process in this case.
The Category 1 images include photographs of naked prepubescent boys in sexualised poses (aged about four to 10 years).
The Category 2 images include prepubescent boys engaged in solo or mutual masturbation.
The Category 3 images include sexual activity between young boys and adult males, including masturbation.
The Category 4 images depict penile and digital penetration by adult males of young prepubescent boys, together with fellatio by young boys upon adult men.
The Category 5 images include naked young boys or girls in various states of bondage, and a photograph of a male urinating upon a child.
It is not necessary to refer further to the Category 6 images, which depict animated or virtual images of children engaged in sexual poses or activities.
Perusal of the sample images serves to confirm the objective gravity of these offences.
The Commonwealth offences involved the downloading of material from the Internet over a seven-year period. Accordingly, the Respondent's use of a carriage service to access child pornography material cannot be regarded as an isolated event, or an activity undertaken over a short period of time. The Commonwealth offences reveal an entrenched and protracted pattern of offending.
The sentencing Judge's approach to accumulation, concurrency and totality will be the subject of later consideration. It is sufficient to observe, at this point, that the objectively seriously offences committed by the Respondent were not realistically to be accommodated within a total head sentence of two years' imprisonment.
The importance of denunciation and general deterrence in this area of offending has been emphasised repeatedly by intermediate appellate courts (see [70]-[72] above). Prior good character, as existed here, was to be given less weight in the sentencing process. The fact that the Respondent had taken active steps towards his rehabilitation, since he was arrested and charged, is not an uncommon feature in cases of this type. The fact that the Respondent had sought out counselling prior to his arrest and charging was unusual. However, the Respondent did not inform his counsellors of his possession and use of child pornography material. Further, such counselling as he undertook did not serve to deter him from continuing to commit these offences up to the time of his arrest and charging in August 2013.
Further reference will be made later in this judgment to the intrinsic leniency involved in the use of an ICO, and its inappropriateness in a case possessing the objective gravity of this case.
It is sufficient to observe that the sentencing Judge's remarks and, in particular, the sentences actually imposed (including the use of an ICO), demonstrated a clear failure to have proper regard to the nature and circumstances of the offending that had occurred in this case.
Mr Gartelmann acknowledged that the approach of the sentencing Judge that "whether by way of concurrency or aggregation through accumulation" the overall sentence would be "in the order of two years or less" (see [56] above) gives rise to an inference that his Honour failed properly to determine sentences for the individual offences in accordance with the principles in Pearce v The Queen, and instead had regard only to the overall term (Johnson v The Queen [2004] HCA 15; 78 ALJR 616 at [26]).
Mr Gartelmann acknowledged further that, despite the sentencing Judge stating that whilst "some measure of accumulation would ordinarily be appropriate", it would be "relatively modest" as there was "considerable overlap" between the offences, his Honour then proceeded to impose wholly concurrent sentences.
Counsel conceded that this approach tended to confirm that his Honour failed properly to determine sentences for the individual offences, and then the question of accumulation and/or concurrency, so as to derive the overall term before deciding how it was to be served. Mr Gartelmann conceded that such an approach was inconsistent with principle: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at 346; R v Zamagias [2002] NSWCCA 17 at [25]-[29].
It was conceded that the possession and access offences involved discrete criminality and that a degree of partial accumulation of the sentences for these offences would generally be warranted to reflect the totality of that criminality: James v R at [16].
However, Mr Gartelmann submitted that the Crown argument that accumulation of the sentences for the access offences was required because they were "rolled up" charges, comprising numerous separate instances and greater criminality than one episode of offending, ought not be accepted. He submitted that any degree of leniency in the exercise of prosecutorial discretion regarding the charge was irrelevant to the determination of sentence. Mr Gartelmann submitted that an appropriate sentence was to be determined for each offence having regard to the entirety of the criminality it comprised, before considering issues of accumulation and concurrency: Pearce v The Queen at [45].
Determination
Counsel for the Respondent has conceded, appropriately, that the sentencing Judge did not apply relevant principles concerning concurrency, accumulation and totality in accordance with the principles in Pearce v The Queen.
The inference ought to be drawn in this case that the sentencing Judge had determined to proceed by way of an ICO and selected sentences that would achieve that outcome. A court proceeding by way of an ICO must not set a non-parole period for the sentence: s.7(2) Crimes (Sentencing Procedure) Act 1999 (NSW). The sentencing Judge imposed entirely concurrent sentences with two of the sentences occupying the full two-year period, being the jurisdictional limit for use of an ICO.
When sentencing for a Commonwealth s.474.19(1)(a)(i) offence and a s.91H(2) offence, it is necessary to keep in mind the different vices to which these provisions are directed: R v Porte at [55]-[56], [157]. I am satisfied that the sentencing Judge erred in principle in his approach to this issue.
The Crown has established, as well, that some level of accumulation should have applied in this case. I am satisfied, at the least, that such a level of accumulation would have taken any sentences to be imposed above the jurisdictional limit for the use of an ICO.
The use of "rolled up" charges is very common with offences of this type. The sheer number of items, often seen in cases such as this, renders it both practical and sensible to proceed in this way. The sentence or sentences to be imposed for particular offences will reflect the number of images caught by the charge or the length of the period over which accessing has occurred. The larger the number of images, the more serious the offence will be. This is especially so where the number of images is to be measured (as in this case) in the tens-of-thousands. In this way, the charges include more than one episode of criminal conduct which will magnify the objective gravity of the offence: R v Richard at 65. Depending upon the circumstances of the case, this may have a bearing, as well, on the issues of accumulation and concurrency.
It is not necessary to proceed beyond this point in considering these particulars of the Crown's ground of appeal. It is sufficient to note that the Crown has demonstrated error on the part of the sentencing Judge in the manner complained of.
The offender in R v Porte was in possession of some 34,000 images, and was to be sentenced for one access offence under s.474.19(1)(a)(i) and one count of possession under s.91H(2). The sentencing Judge proceeded by way of entirely concurrent sentences of 18 months' imprisonment to be served by way of an ICO. In the course of allowing the Crown appeal and resentencing the offender, the Court referred to the sentencing Judge's use of an ICO at [129]-[132]:
"129 This Court has emphasised the significant degree of leniency involved in the use of an ICO as a sentence. Although statements made in R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225; 82 NSWLR 60 at 85-87 [112]-[123] (in the joint judgment of McClellan CJ at CL and myself) point to the breadth to the concept of rehabilitation, and the capacity of an ICO to operate as a form of punishment, it is necessary not to lose sight of the need for an appropriate level of punishment, in the form of immediate incarceration, in cases of serious child pornography offences such as this.
130 The decision in R v Pogson; R v Lapham; R v Martin should not be utilised to pass an entirely inappropriate sentence, which sees an offender such as the Respondent with his magnitude of offending, being dealt with by way of an ICO.
131 To proceed by way of an ICO in this case meant that concepts of general deterrence and denunciation 'slip through almost without trace': D'Alessandro at 484 [24].
132 Entirely concurrent sentences of 18 months' imprisonment for the s.91H(2) and s.474.19 offences disclose error which is magnified by the order that the terms be served by way of ICO. Having regard to the quantity and nature of the images and videos accessed and possessed by the Respondent in this case, the sentences imposed are unjustifiably lenient."
Similar considerations apply with respect to the use of an ICO in the present case. The imposition of the sentences selected in the present case demonstrated a failure to give effect to the significant need for general deterrence and denunciation on sentence.
The Respondent's prospects of rehabilitation constituted a significant factor on sentence. However, it was important to have regard to this factor in a way that did not result in a lack of reasonable proportionality in the sentences imposed.
A number of the issues arising under this heading were addressed by this Court in R v Porte, in particular at [126]-[128]:
"126 The Respondent had a number of factors operating in his favour on the subjective side of the case, including his health. His prior good character was to be afforded limited weight: R v Gent at 40-44 [48]-[69]; D'Alessandro at 483-484 [21] cited at [60] above. Prior good character is not unusual in this area of offending. Positive personal antecedents and a reduced or absent need for personal deterrence are relatively commonplace amongst offenders in possession of child pornography: Hill v State of Western Australia [2009] WASCA 4 at [28]. Significant weight is to be given to general deterrence and correspondingly less weight to matters personal to the offender: Hill v State of Western Australia at [28].
127 The Court must bear in mind the maximum penalties for these respective offences, being imprisonment for 10 years for the State offence and 15 years for the Commonwealth offence. In addition, the repeated statements of Courts throughout Australia with respect to the paramount importance of general deterrence and denunciation must loom large on sentence for these offences (see [60]-[72] above).
128 Steps taken by the Respondent to progress his rehabilitation are important on sentence. However, the sentences actually imposed must be reasonably proportionate to the crimes which the Respondent committed: R v Booth at [47] (cited at [71] above). It is important that the subjective circumstances of an offender not overshadow the objective gravity of the crimes for which sentence is to be passed: R v Dodd at 354."
I am satisfied that the sentencing Judge approached the Respondent's prospects of rehabilitation in this case in an erroneous way, with the consequence that the Respondent's subjective circumstances were allowed to overshadow the substantial objective gravity of this crimes.
Application of correct principles with respect to concurrency and accumulation required some measure of accumulation, subject to the application of the totality principle: James v R at [16]; R v Fulop [2009] VSCA 296; 236 FLR 376 at 378-379 [10]-[12].
It should be kept in mind that these are not victimless crimes: R v Porte at [68], [70]. Not only are the children involved exploited and degraded by the events depicted in the images. As they grow older, their shame and distress is likely to continue with the knowledge that the material may remain in circulation: R v Porte at [69].
I am satisfied that the sentences imposed upon the Respondent, both as to length and the use of an ICO, were manifestly inadequate. The sentencing orders in this case were unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370 [25]. I have reached this conclusion having considered all matters relevant to the fixing of sentence: Hili v The Queen [2010] HCA 45; 242 CLR 520 at 539 [60]. The only sentences which were reasonably open in the circumstances of this case were full-time sentences of imprisonment.
This conclusion is fortified by reference to other sentencing decisions cited in R v Porte at [152]-[153], together with the decision in R v Porte itself.
Mr Zammit's affidavit annexes a further report of Dr Nielssen dated 17 May 2015. This report was prepared following a telephone interview conducted by Dr Nielssen with the Respondent that day. The Respondent recounted to Dr Nielssen the fears he has with respect to the prospect of imprisonment. Following his telephone consultation with the Respondent, Dr Nielssen stated that the Respondent had an anxiety disorder manifesting in typical panic attacks and catastrophic thinking. He observed that the Respondent seemed to have taken constructive steps towards rehabilitation.
In her affidavit, Ms Love stated that she had known the Respondent since 1997, and had developed a close relationship with him since 2001. She recounted signs of stress and anxiety in the Respondent which she had observed since the Crown appeal had been on foot. Ms Love indicated an intention to provide ongoing support and assistance to the Respondent.
Mr Gartelmann submitted that acute distress and anxiety, suffered by the Respondent as a consequence of the Crown appeal, was relevant to the exercise of the residual discretion. He submitted that evidence in the sentencing proceedings confirmed the Respondent's history of symptoms of depression and anxiety, and that the additional evidence adduced at the hearing of the appeal pointed to the Respondent's symptoms being exacerbated as a consequence of the appeal.
Mr Gartelmann referred to decisions of this Court where discretionary dismissal of a Crown appeal has been considered appropriate where the Respondent has been encouraged to pursue rehabilitation in the community, and having regard to the likely effects of resentencing upon an offender's rehabilitation: R v Cahill [2015] NSWCCA 53 at [130]-[131]. It was submitted that the Respondent was making continuing progress with his rehabilitation in the community and that the Court should dismiss the Crown appeal.
The Crown submitted that the Court should proceed to resentence in this case. There had been no conduct by the Crown contributing to error at first instance, the appeals had been filed expeditiously and the Crown case on appeal did not depart from the case advanced at the sentencing hearing: R v Harris [2015] NSWCCA 81 at [65]-[66].
Whilst acknowledging the anxiety affecting the Respondent following the lodging of the Crown appeal, it was submitted that apprehension concerning the prospect of imprisonment was not an uncommon feature of the Crown appeal.
The Crown submitted that, in all the circumstances of the case, this Court should intervene to resentence the Respondent.
Determination
The Crown appeals in this case were filed promptly, with the Respondent being so informed without delay. There is no feature of the conduct of the proceedings in the District Court which operates against the Crown on this issue. At all times, the Crown submitted that a sentence of full-time imprisonment was the only appropriate sentencing option in this case.
It is necessary to keep in mind that clear error has been established in this case through the imposition of manifestly inadequate sentences, utilising an ICO which was not reasonably open in the circumstances of the case.
The principal factors urged on behalf of the Respondent relate to his subjective circumstances and rehabilitative steps, together with his fears of imprisonment.
The Respondent's offences were of considerable objective gravity. They involved ongoing offending over a significant period of time. Although the Respondent realised he had problems in this area and obtained assistance from counsellors, he withheld information concerning his offending from those counsellors. At the same time, he persisted with his offending.
Both the Commonwealth and New South Wales Parliaments have made clear the gravity of child pornography offences, and the expectation that substantial penalties will be imposed in cases of serious offending: R v Porte at [57]-[58]. Courts throughout Australia have emphasised the need for substantial penalties with general deterrence and denunciation being paramount considerations with this class of offending: R v Porte at [59]-[72]. These aspects should be kept in mind, as well, in considering the exercise of the residual discretion in this case.
It is a regrettable, but not uncommon, circumstance that an offender who is at risk of full-time imprisonment as a result of a Crown appeal, experiences significant anxiety at the prospects of imprisonment. The evidence indicates that the Respondent has particular concerns in this respect arising from his own personal background. I keep in mind that Dr Nielssen has diagnosed recently an anxiety disorder in this respect.
If the Court moves to resentence the Respondent, these features will be taken into account on resentencing. It is important, however, that the Court approaches this issue upon the basis that it is the responsibility of correctional authorities to house, securely and safely, persons taken into custody. A statutory object contained in s.2A(1)(a) Crimes (Administration of Sentences) Act 1999 (NSW) is " to ensure that those offenders who are required to be held in custody are removed from the general community and placed in a safe, secure and humane environment".
It is the responsibility of the correctional authorities to house offenders in a safe and secure environment, with further protection to be afforded in appropriate cases.
The judgment on this Crown appeal will serve to identify principles for the governance and guidance of sentencing courts: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at 465-466 [1]-[2]. The judgment will also serve to maintain public confidence in the administration of justice by the intervention of this Court in the case of a manifestly inadequate sentence: Everett v The Queen [1994] HCA 49; 181 CLR 295 at 306; R v Stoupe [2015] NSWCCA 175 at [115]-[116].
I am satisfied that the Court should move to resentence the Respondent in all the circumstances of this case. The sentences imposed at first instance constitute a "substantial wrong" in accordance with House v The King [1936] HCA 40; 55 CLR 499 at 506. This Court should intervene to resentence the Respondent.
With respect to the Commonwealth offences, the following sentences should apply:
1. for Sequence 11 (the 2005 offence), imprisonment for 15 months;
2. for Sequence 2 (the 2006-2010 offence), imprisonment for 18 months;
3. for Sequence 12 (the 2010-2013 offence), imprisonment for 21 months.
As the effective non-parole period to be imposed will attach to the State offence, it is not appropriate to make a recognisance release order with respect to those sentences: s.19AB(3) Crimes Act 1914 (Cth).
The total effective sentence will comprise a head sentence of three years, with an effective minimum term of one year and nine months. Both periods should date from 6 March 2015, being the date upon which the Respondent commenced to serve the ICO. This approach has been adopted by this Court on successful Crown appeals where an ICO was ordered at first instance: R v Hinchliffe [2013] NSWCCA 327 at 304; R v Porte at [159].
I propose the following orders:
1. Crown appeals allowed;
2. Sentences imposed in the Sydney District Court on 27 February 2015 are set aside;
3. In their place,
1. for the offence of accessing child pornography material contrary to s.474.19(1)(a)(i) Criminal Code (Cth) (Sequence 11), the Respondent is sentenced to imprisonment for a period of 15 months commencing on 6 March 2015 and expiring on 5 June 2016,
2. for the offence of accessing child pornography material contrary to s.474.19(1)(a)(i) (Sequence 2), the Respondent is sentenced to imprisonment for a period of 18 months commencing on 6 March 2015 and expiring on 5 September 2016,
3. for the offence of accessing child pornography material contrary to s.474.19(1)(a)(i) (Sequence 12), the Respondent is sentenced to imprisonment for a period of 21 months commencing on 6 March 2015 and expiring on 5 December 2016,
4. for the offence of possession of child abuse material contrary to s.91H(2) Crimes Act 1900 (NSW) (Sequence 1), and taking into account the two offences on the Form 1, the Respondent is sentenced to imprisonment comprising a non-parole period of 15 months commencing on 6 September 2015 and expiring on 5 December 2016, with a balance of term of 15 months commencing on 6 December 2016 and expiring on 5 March 2018.
1. in accordance with s.50 Crimes (Sentencing Procedure) Act 1999 (NSW), the Respondent should be released to parole on 5 December 2016.
GARLING J: I agree with the orders proposed by Johnson J, and with his reasons.