R v Jongsma [2004] VSCA 218

R v Jongsma [2004] VSCA 218 - VSCA 2004 case summary — Zoe

[14]

In his sentencing remarks his Honour stated that the appellant became, following his conviction (and, strictly, his being sentenced to imprisonment) upon count 2, a serious sexual offender as defined by the Sentencing Act 1991, but that he, the judge, did not need to call in aid the somewhat draconian provisions of the legislation to effect the purpose, made the principal purpose by the legislation, of protecting the community. That last statement is a reference to s.6D, and especially paragraph (b) thereof, but the fact that his Honour did not consider it necessary to invoke the provisions of paragraph (b) did not exonerate him from causing, pursuant to s.6F(1), to be entered in the records of the County Court the fact that the appellant had been sentenced for relevant offences as a serious offender. For s.6F(1) is quite factual, applying as it does when a court sentences a serious offender for a relevant offence, and moreover, even if it was proper to disregard s.6D, s.6E operated to require every term of imprisonment for a relevant offence to be served cumulatively upon other sentences unless otherwise directed by his Honour. His Honour did not expressly direct otherwise, as, despite the awkwardness produced, several decisions of this Court show should be done, but the proper interpretation of the express provisions for cumulation contained in his order and of his statement of the total effective sentence is that he did impliedly direct otherwise. Now, it is to be observed that the substantive operative provisions, ss.6D and 6E, as well as the ancillary s.6F(1), apply only where a serious offender is sentenced "for a relevant offence". For present purposes the effect of the definitional provisions in the light of the facts of the case is that a "relevant offence" is one to which clause 1 of Schedule 1 applied. His Honour had been told by the prosecutor, correctly in my opinion,[4] that the indecent act offences, but not the child prostitution or child pornography offences, were relevant offences. The upshot of these discursive remarks is that his Honour should have caused an entry to be made pursuant to s.6F(1) in respect of the ten indecent act offences after that the subject of count 2.

[49]

Despite the attractiveness of this argument, Mr. Hillman for the respondent by his analysis of the sentences for the purposes of several of the grounds has persuaded me that the sentences criticised are not disproportionate or mutually inconsistent: they can be justified by reference to the objective circumstances of the respective offences. Hickey is distinguishable. His Honour appears to have taken eighteen months as the standard term of imprisonment for indecent act offences.[14] An increase to 24 months for the two representative counts is readily justifiable. When the victim masturbated the appellant, as in count 3, the term was, justifiably in my opinion, increased to 24 months. Count 5, for which the term imposed was 18 months, is not an exception because the victim was, not B, who did the masturbating, but A. Count 14 appears to be an exception, but it may be that the judge was influenced by the fact that there were fewer offences against C than against A, the subject of count 3. In any event, for one slight inconsistency, not carried into the total effective sentence, to bring down the sentence would be a triumph of technicality in sentencing, something that the High Court has decried. Although count 11 was not relied on by counsel for the appellant, the term of 24 months for it is justified by the additional fact that the appellant touched the outside of C's vagina for one to two minutes. The last count for consideration is count 8. The sentence on it is particularly relied on as being disproportionate. Now, it was a case where the victim masturbated the appellant, so that a term of 24 months at any rate was justified as proportionate to the offending and consistent with other sentences. But there is more to the offending the subject of this count. First, it occurred as a result of a pre-arrangement made earlier in the day, as a result of which A knew exactly what was required of her. Further, the appellant enticed A with the promise of a gift but required that she masturbate him before he would give her the mobile telephone, that is, in order to "earn" the mobile telephone that she needed. Finally, A was completely naked when she performed the masturbation. Thus, the offending was considered and premeditated, it involved psychological manipulation of the victim and, through the victim's total nakedness, was very demeaning of her. His Honour said, justifiably I think, that this offending was "demonstrative of [the appellant's] peculiarities". I am not persuaded that in arriving at a term of a further six months more, namely, 30 months, his Honour produced inconsistency or a sentence that was disproportionate to the criminality comprehended by the count.

[52]

I do not think that the observation of Buchanan, J.A. means that there can never be cumulation of a sentence upon a representative count unless it is explained. The point is that the mere representative nature of the count does not automatically require cumulation of the sentence upon it. By no means infrequently the judges make directions for cumulation or concurrency without explaining their basis. Usually it is reasonably clear what the unexpressed explanation is. If such a direction is inexplicable, it will, or at least may well, be erroneous. Leaving aside count 17, it can be seen that the effect of his Honour's directions is that in respect of A a period of 36 months, in respect of C a period of 24 months and in respect of B a period of 12 months entered into the total effective sentence. In my opinion, having regard to the number and relative seriousness of the respective offences against those victims, the ratio or relationship between the periods is appropriate. His Honour was entitled, I consider, to select the representative count 2 as appropriate for the further cumulation relating to C that he considered necessary as it related to one of the most serious offences against C. For similar reasons he was entitled, in my opinion, to select count 10 as the vehicle for some cumulation in relation to C. However, his Honour made the whole of the sentence upon that count cumulative without any explanation. Total cumulation between different episodes is not, however, the normal rule at common law: R. v. Fuller-Cust[18]. Section 6E of the Sentencing Act does make it the normal rule, but that proves too much, for it would justify all the sentences being cumulated, which would infringe the principle of totality. Undoubtedly his Honour had a discretion, but I cannot see a basis for achieving all of the desired cumulation in respect of C of 24 months by means solely of count 10, even though the offence the subject of it was the most serious, or one of the most serious, offences against C. This is particularly so as there is another offence, that the subject of count 11, which, by reason that it included touching C's vagina on the outside, besides being serious, contained an additional element of criminality. I do not believe that Mr. Hillman advanced a specific justification for total cumulation. Although decisions of the High Court and of this Court make it clear that sentencing does not depend on mathematical exactitude and should not be unduly technical, decisions in those courts also establish that it is not sufficient simply that the final result (the total effective sentence) is appropriate, but that appropriate individual sentences must be passed for each count and appropriate directions for cumulation or concurrency made for each. Strictly, therefore, as it seems to me, the direction for total cumulation of the sentence on count 10 was erroneous.[19]

[56]

In support of the more general ground 1 the appellant relied on the various matters in mitigation accepted by the judge. Acknowledging that the crimes were serious, nonetheless it was submitted for him that a proper synthesis of relevant factors, both aggravating and mitigating, led to the conclusion that all elements of the sentence were manifestly excessive: whilst sentences of imprisonment were called for, there were powerful mitigating circumstances that should have led in the proper exercise of the sentencing discretion to an aggregate sentence of less than eight years with a non-parole period of six. Thus, the appellant substantially, though not completely, confessed to police, pleaded guilty at an early time, pleaded guilty to offences over which he had not been questioned (counts 3, 5, 6 and 8) and about which, it was said though I do not agree, the sufficiency of proof was arguable (count 4). On any view, it was submitted, in the majority of the crimes the complainants were more than willing participants and very many of the crimes were at their instigation.[21] The matters did not come to the attention of the police by any complaint made by a victim but by an anonymous "tip-off" arising from the victims possessing inappropriate amounts of money and cigarettes. The victim impact statements "[rang] somewhat false given their level of co-operation" to use his Honour's words during the plea (though he did when sentencing refer to another aspect of the victim impact statements, as mentioned earlier). The appellant had never before served a custodial sentence and would be required to serve his sentence in protection. He had no relevant prior conviction. He had sought help for his problem. He had been a good friend to several persons. As to the offending itself it was said that there was no penetrative offence, but the facts of count 7 show that strictly to be incorrect, though the victim was not under 16 years. The photographs the subject of counts 12 and 15 were necessarily admitted to be pornographic but it was submitted that, unlike the material involved in count 17, they were not depraved. A further submission was made that, although some modest cumulation might have been appropriate, proper application of the principle of totality ought to have resulted in a sentence of less than eight years. The appellant had, it was said, effectively been given a rape sentence.

[61]

This was the count on which the heaviest sentence was imposed, namely 36 months' imprisonment, 24 months of which was cumulative. The term of imprisonment represented 60 per cent of the maximum penalty available. It was said for the appellant that the actus reus of the crime of knowingly possessing child pornography was essentially pushing an "enter" button on a keyboard. I do not accept that submission. Pushing a button, once or twice, is momentary. Possession is durative and, although possession on one day only was charged, the date being immaterial one can have regard in sentencing (as was done in R. v. Curtain[24]) to the length of time of possession, which here would seem to be about a month, on the appellant's version, though about a year longer to judge by the file dates on the printed version of images. It was then said that, whilst the appellant was not to be sentenced for producing the pornography, a more serious charge (carrying 10 years), yet the judge had taken into account the method of production in determining the sentence for possession. The first part of that submission is correct, but the second is only partly so. His Honour referred to the production by others in order to show that, if there were no direct victims of possession of Internet child pornography, at one remove there were victims, being the children depicted, so that it was a more serious crime than an entirely victimless one.[25] He also made the associated and entirely unexceptionable[26] point that without purchasers (possessors) of child pornography there would be no or few producers of it, just as it is often said that without receivers there would be few thieves. His Honour did not sentence the appellant for producing or, on the other hand, for downloading and transferring the pornography. It was then said that it may be that the appellant was unaware of the specific images that were to be sent to him at the time of purchase. But this is mere speculation, as are some of the other matters raised in the course of argument. It was open to the appellant to give evidence explaining the procedure by which he purchased and his knowledge of what he was about to purchase. I am by no means sure, however, that that would have been material, for the essence of the charge, to which he pleaded guilty, was that he knowingly possessed child pornography.

[64]

In R. v. Garner[27] the offence was committed at a time when it was a summary offence and the applicant (who pleaded guilty) was sentenced to 8 months' imprisonment. This was held not to be manifestly excessive having regard to the number of different children involved in the photographs and video cassettes and their explicit nature. In that case the photographs had been taken by the applicant. In R. v. Curtain the appellant pleaded guilty to possession of child pornography, the offence being alleged to have occurred on 25 November 2000, which was three days after the offence became an indictable one with a maximum penalty of 5 years' imprisonment instead of a summary offence punishable by a maximum of 2 years' imprisonment. Police had found in his possession five compact discs containing approximately 50,000 images of which it was estimated 85% to 90% were of child pornography. He was sentenced to 18 months' imprisonment and a non-parole period of 9 months was fixed. The court rejected a ground of appeal that the sentence was manifestly excessive. Vincent, J.A., with whom the other members of the court agreed, went so far as to say, obiter, that the sentence imposed was within the range properly available to the sentencing judge prior to the amendment of the legislation. His Honour stated that the fact that the appellant had been in possession for a lengthy time could well be regarded as an aggravating factor. His Honour said that Parliament had clearly introduced the original provision in order to address one aspect of the sexual exploitation of children, namely, the distribution in the community of descriptions, pictures or images of violation. It had been decided to deter those who might be so inclined from collecting, retaining or disseminating such material by rendering its mere possession a criminal offence punishable by imprisonment. He noted that the Attorney-General in his Second Reading Speech introducing the amending legislation had stated that the increase in penalty and the categorisation of the offences indictable were intended to "send a clear message" of the serious view taken of the offence and to increase the deterrent effect of the law. Winneke, P. in a short concurring judgment said that the sentence was well within the range available to the sentencing judge. Director of Public Prosecutions v. DJS[28] was a Crown appeal against the inadequacy of sentences on a large number, but not all, of the counts of sexual offences on a presentment following a plea of guilty. There was no appeal against the sentence of two years' imprisonment imposed on a representative count for the possession of child pornography over a period of nearly four years. The Court of Appeal set aside the sentences below and re-sentenced the respondent, in the case of possession of child pornography to the same sentence, namely, two years, but, naturally, there is no discussion of that term as there was no challenge to it. In R. v. Coffey when the encrypted and unencrypted files found in the possession of the applicant (who pleaded guilty) were analysed he was found to have 1480 pornographic images. The court through Callaway, J.A. [29] approved the sentencing judge's statement that child pornography of that kind involved the corruption and violation of children and the possession of it created a market which encouraged the further exploitation of children. Callaway, J.A. stated that the offence created by s.70 was intended, amongst other things, to deter prospective purchasers and collectors of child pornography in the hope that adverse economic consequences will ensue for those who produce it, a statement very close to the statement by the sentencing judge in the present case, which is thus shown to be unexceptionable. The sentence of 6 months' imprisonment was held to be well within the range. In Director of Public Prosecutions v. GJL[30] a sentence of six months' imprisonment for possession of "a considerable number" of pornographic images and video files found in the home of the respondent (who pleaded guilty) was increased to 18 months' imprisonment on a Crown appeal. My enquiries show that this material had been downloaded from the Internet rather than created by the respondent himself, as had been the case in counts of producing and transmitting child pornography, where the children depicted were the victims in yet other counts. In Director of Public Prosecutions v. VH[31] the respondent had pleaded guilty to six counts of incest and one count of possession of child pornography (count 7). In order to persuade one victim that incest was normal the respondent showed her various pornographic images depicting sexual relations with children, which he had downloaded from the Internet. On searching his home police found a disc containing 39 pictures of child pornography. The court allowed a Crown appeal against inadequacy of sentence and, in the case of count 7, re-sentenced the respondent to two years' imprisonment. Callaway, J.A. summarised[32] what he had said in Coffey and stated that the case then before the court was far worse because of the use to which the respondent put the images he had downloaded.

[65]

In Dodge v. The Queen[33] the Western Australian Court of Criminal Appeal reduced a sentence of 18 months for possession of child pornography, the maximum penalty for which was five years' imprisonment, to 12 months' imprisonment. In that case the appellant, who pleaded guilty, had in his possession in prison written child pornography, there being no images of young children performing sexual acts, though there was explicit written detail of sexual activity with young children in the written material. Wallwork, J., with whom the other judges agreed, in effect reviewed the earlier Western Australia appellant decisions. He referred to the statement of Ipp, J. in R. v. Liddington[34] to the effect that the mere fact that persons are prepared to possess child pornography, albeit for their private purposes, necessarily creates a market for the corruption and exploitation of children; that children are abused, violated and degraded in order to create a market; and that people with pederastic inclinations could be stimulated to commit pederastic acts on viewing the material. But the instant case was different, for no children had been corrupted in order to create the pornography possessed. His Honour distinguished R. v. Coultas[35] where, amongst 94 counts of supplying, there was one count of possession of thousands of photographs and the offender received a sentence of 18 months' imprisonment. His Honour also distinguished R. v. Jones[36], where there were in excess of 80,000 different images[37]. It had there been held on a Crown appeal that a sentence of two years' imprisonment was within range but that it ought not to have been suspended. The offender was re-sentenced to 18 months' imprisonment. Kennedy, J. had stated[38] that, by its recent increase of the penalty for simple possession of child pornography, Parliament was inviting courts "vigorously to pursue the objectives of general deterrence and denunciation" in sentencing offenders. He pointed out[39] that the offence cannot be characterised as a victimless crime: for children, in the end, were the victims. Wallwork, J., who gave the main judgment, distinguished Liddington, where a suspended sentence had been upheld on appeal, on the ground that there were only about 455 images in that case. Wallwork, J., in Dodge, concluded that in all the circumstances, including that there was no involvement of live children and no financial gain to the applicant and, so far as such cases went, a relatively low number of items involved, and also taking into account the time he had spent in prison, his co-operation and pleas of guilty, a sentence of 12 months' imprisonment should be substituted both for possession and supply of child pornography, to be served concurrently, without eligibility for parole.

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