R v Linardon

Court of Criminal Appeal (NSW)|2014-07-30|Before: Bathurst CJ, Adams J, Hulme J, Puckeridge AJ

Principal judgment Parties: Crown (Appellant) David Armando Linardon (Respondent) Representation: Counsel: R J Bromwich SC/ R Ranken (Crown) R J Steward (Respondent) Solicitors: Commonwealth Director of Public Prosecutions (Crown) Prime Lawyers (Respondent) File Number(s): 2012/170806 Publication restriction: Pursuant to s 15A Children (Criminal Proceedings) Act 1987, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child victim. Identifying information has been removed from this judgment to comply with the statute. Decision under appeal Date of Decision: 2013-08-02 00:00:00 Before: Puckeridge AJ File Number(s): 2012/170806

Judgment 1BATHURST CJ: David Armando Linardon (the respondent), pleaded guilty at Sutherland Local Court to five charges relating to child pornography (the offences). Four of the offences (the Commonwealth offences) alleged contraventions of various sections of the Criminal Code Act 1995 (Cth) (the Criminal Code). The fifth offence alleged a contravention of s 91H of the Crimes Act 1900 (NSW). 2On 2 August 2013 the respondent was sentenced in the District Court for the offences. The respective charges and sentences imposed by the primary judge were as follows: (a)For the possession of child abuse material contrary to s 91H of the Crimes Act (NSW) (the State offence), a sentence of a fixed term of 2 years imprisonment dated from 25 July 2013 and expiring on 24 July 2015 was imposed. (b)For the transmission of child pornography contrary to s 474.19(1)(a)(iii) of the Criminal Code (the transmission offence), a sentence of 2 years and 8 months imprisonment commencing on 25 August 2013 and expiring on 24 April 2016 was imposed. (c)For the accessing of child pornography contrary to s 474.19(1)(a)(i) of the Criminal Code (the access offence), a sentence of 2 years and 8 months imprisonment commencing on 25 September 2013 and expiring on 24 May 2016 was imposed. (d)For the transmission of an indecent communication to a person under 16 years contrary to s 474.27A of the Criminal Code (the indecent communication offence), a sentence of 2 years imprisonment commencing on 25 October 2014 and expiring on 24 October 2016 was imposed. (e)For the aggravated offence of transmission of child pornography on three or more occasions to two or more people contrary to s 474.24A(1)(a)(i) of the Criminal Code (the aggravated transmission offence), a sentence of 3 years imprisonment commencing on 25 November 2013 and expiring on 24 November 2016 was imposed. 3The maximum sentences that can be imposed for the offences are as follows: for the State offence 10 years, for the transmission and access offences 15 years, for the indecent communication offence 7 years and for the aggravated transmission offence 25 years. 4The sentencing judge, as he was required to do by reason of s 19AB of the Crimes Act 1914 (Cth), fixed a single non-parole period in respect of the Commonwealth offences. The non-parole period was a period of 1 year and 10 months commencing on 25 August 2013 and expiring on 24 June 2015. 5It will be immediately apparent that the whole of the non-parole period ordered in respect of the Commonwealth offences would be served concurrently with the sentence imposed for the State offence. 6The Crown has appealed against the sentences imposed pursuant to s 5D of the Criminal Appeal Act 1912 (NSW).

Factual background 7At the sentencing hearing, the Crown tendered a statement of facts, without objection from the respondent, which summarised the facts relating to each charge.

(a) The State offence 8Following a referral from the United States Department of Justice and the execution of a search warrant on premises occupied by the respondent, three USB devices were located. These contained 4,530 child pornography images and 40 child pornography videos. The images were categorised as follows: "Category 1 3107 images and 1 video depicted nudity, sexually suggestive posing, surreptitious images focused on underwear, explicit emphasis on genital areas or solo urination Category 2 291 images and 0 videos depicted solo masturbation by a child, use of penetrative sex toys by the child, or non-penetrative sexual acts between children Category 3 487 images and 9 videos depicted non-penetrative sexual activity between children and adults, including mutual masturbation and other non-penetrative sexual activity Category 4 587 images and 28 videos depicted penetrative sexual activity between children and adults. Including, but not limited to, intercourse, cunnilingus and fellatio Category 5 58 images and 0 videos depicted sadism, bestiality or humiliation (urination, defecation, vomit, bondage etc.), or child abuse material as defined in section 473.1 of Criminal Code Act 1995." 9The categories referred to above and throughout this judgment are categories on a scale known as the Oliver Scale. Category 1 relates to erotic posing without sexual activity; category 2 relates to sexual activity between children or solo masturbation by a child; category 3 relates to non-penetrative sexual activity between adults and children or an adult and a child; category 4 relates to penetrative sexual activity between adults and children and category 5 relates to sadism or bestiality.

(b) The transmission offence 10A search of the respondent's email account revealed that between 4 April and 28 May 2012 the respondent had transmitted child pornography image/video files to 12 other email accounts (the identities of the accounts were disclosed in the statement of facts but need not be disclosed in this judgment). A total of 256 images/videos were distributed. Not all were transmitted to each account; the highest number transmitted to any one account was 68. Of all the files sent, 49 were category 1, 12 were category 2, 28 were category 3, 128 were category 4 and 39 were category 5. 11In addition there were a total of 29 "chat sessions" (in text form) between the respondent and the user of one of the email accounts. Of these, 1 was category 1 and 28 were category 5.

(c) The access offence 12The statement of facts records that the respondent accessed 130 child pornography images/videos in total sent from 4 email accounts. Of these 40 were in category 1, 4 in category 2, 36 in category 3, 41 in category 4 and 9 in category 5.

(d) The indecent communication offence 13The person to which the indecent communication was made was a female who was identified and rescued from a family home in the United States by the FBI. Although the statement of facts does not state this, the Crown submitted to the sentencing judge that she was nine years of age and this appears to have been accepted at the sentencing hearing. 14The respondent transmitted 199 image/video child pornography files to the child. Twenty-five were classified as category 1, 10 as category 2, 77 as category 3, 67 as category 4 and 20 as category 5. 15In addition, there were 13 chat sessions between the respondent and the child, all classified as category 4. An extract of some of these chat sessions was annexed to the statement of facts. They involve the respondent requesting details about the nature of the abuse to which the child was subjected to by her father, requesting naked photographs of her and photographs of her being abused. The child is spoken to in the chat sessions in derogatory and humiliating terms. The following examples referred to in the submissions of the Crown adequately set out the nature of the chat sessions: "(a) On 8 April 2012, the respondent asked [M] for more pictures of herself; suggested that girls like her were good at fellatio and better than older girls; and praised [M] for fellating her father; (b) On 19 April 2012, the respondent told [M] he liked the pictures of her very much and asked if he could show them to his (fictitious) 7-year-old niece. The respondent later told [M] that he liked the pictures of her with her father's penis and again praised [M] for fellating her father, including telling her that she knows how to make her father happy; (c) On 29 April 2012, the respondent asked [M] if she had fellated her father that day and told [M] that he liked the pictures of her having sexual intercourse with her father. The respondent asked [M] whether she enjoyed it and told her that she was a good girl for her father and that he wished he had a daughter like her; (d) On 30 April 2012, the respondent asked [M] about a dildo depicted in pictures of her and on what parts of her body she uses it. He later describes for [M] a progression of sexual acts between a girl called [A] and [A]'s father. (e) On 10 May 2012, the respondent asked [M] if she was going to have sexual intercourse with her father in the immediate future."

(e) The aggravated transmission offence 16The statement of facts identified three occasions on which child pornography was transmitted. The first occurrence involved distribution to 4 email accounts of a total of 14 images/videos, 6 of which were in category 1, 1 was category 2, 2 were category 3, 2 were category 4 and 3 were category 5. 17The second occasion involved distribution to 3 email accounts of a total of 18 images/videos, 7 of which were category 1, 1 was category 2, 2 were category 3 and 8 were category 4. 18The third occasion involved distribution of a total of 54 images/videos to 3 email accounts, 39 of which were category 1, 12 were category 2 and 3 were category 5.

The remarks on sentence 19The sentencing judge noted that all the offences were serious as shown by the maximum penalties. He noted that in the context of the offences with which he was concerned, considerations of general and specific deterrence loomed large in the sentencing exercise. 20His Honour noted the subjective circumstances of the respondent. He stated the respondent was 48 years of age, married (but separated since being arrested) and having an 8 year old autistic child. The sentencing judge described the respondent as a loving husband and caring father. He stated that until his imprisonment he was living with his mother and had been in fulltime employment. 21The sentencing judge referred to the report of a consultant psychiatrist, Dr Pilsky. This reported that following the respondent being charged and released on bail he became anxious, depressed and suicidal. The judge noted the respondent was admitted to Wesley Hospital, Kogarah, on 9 June 2012 under the care of Dr Pilsky and placed on anti-depressant medication. His suicidal tendencies had decreased by the time he was discharged. 22The sentencing judge stated that the respondent had continued to maintain contact with his son. Such contact however occurred in the presence of either Corrective Services or Probation Service officers, which was upsetting to the son. The sentencing judge stated that in sentencing he had taken into account the matters referred to in s 16A of the Crimes Act (Cth) and s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW). 23The sentencing judge then dealt with the individual offences separately. In relation to the State offence, he stated that the possession of child pornography is a callous and predatory crime and that the material could not come into existence without the exploitation and abuse of children somewhere in the world. The sentencing judge also took into account that one of the reasons for the offender's possession of the material was further distribution. Whether this approach offended the De Simoni principle (The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383) was not debated on the appeal. 24The sentencing judge, after giving a 20% discount for the plea of guilty, sentenced the respondent to a fixed term of 2 years for this offence commencing on 25 July 2013 and expiring on 24 July 2015. 25The sentencing judge then dealt with the transmission offence (although he mistakenly initially described the facts relating to this offence as relating to the access offence). He accepted the submission of the Crown that as the children depicted were of a very young age, the objective seriousness of the offence was increased. 26The sentencing judge then noted the submission of the respondent that there was no suggestion of proximity between him and those who brought the material into existence and that there was no evidence that the respondent operated in an organised network. The sentencing judge however stated without elaboration that having viewed a range of the material in each category he considered the appropriate sentence was 32 months after making a 20% discount for the plea of guilty. He stated the sentence was to date from 25 August 2013 and to expire on 24 April 2016. 27In relation to the access offence the sentencing judge referred to R v Poynder [2007] NSWCCA 157; (2007) 171 A Crim R 544. He stated that irrespective of whether the offender has no intention of acting out the fantasies in which they are indulging, the conduct has a significant deleterious impact on any child participating in it. He stated that the humiliation of the child was heightened by "the offender's encouragement to have videos sent to him". 28The sentencing judge noted the submission of the Crown that the nature and content of the material could be categorised in the mid to high range of seriousness of child pornography and child abuse material. He stated the material accessed covered all fields and that the material at the more serious end of the scale included material which depicted sexual activity between children and adults and images and videos classified as sadism or bestiality. 29The sentencing judge accepted that there was no evidence that the respondent profited financially. However, he stated that of itself this did not detract from the seriousness of the offence. He stated that through his conduct the respondent contributed to a market for child pornography. In the circumstances he imposed a similar sentence as that which he had imposed for the transmission offence, the sentence to date from 25 September 2013 and expire on 24 May 2016. 30In relation to the indecent communication offence the sentencing judge referred to the fact that the chat sessions showed encouragement to send pictures of particular sexual activity. He also noted that the chat sessions encouraged the child to perform for the camera and emphasised the degradation of the victim. 31The sentencing judge noted the Crown submission that the victim was a nine year old child and the respondent had used his online relationship with her father to gain access to her. He noted the submission that the respondent requested details about the nature of the abuse to which the victim was subjected by her father and requested naked photographs of her being abused. Although the sentencing judge made no findings on these submissions the submission is borne out by the extracts of the chat sessions annexed to the statement of facts. 32The sentencing judge reached the conclusion that the appropriate sentence, after an unspecified discount for the respondent's guilty plea, was 2 years commencing on 25 October 2014 and expiring on 24 October 2016. The discount for the plea presumably was 20% consistent with the discount which was allowed for the other offences. 33In relation to the aggravated transmission offence the sentencing judge noted that the maximum penalty of 25 years indicated the seriousness of the offence. 34The sentencing judge accepted the Crown's submission that by his conduct, the respondent had taken advantage of, contributed to and exacerbated the market of sexual exploitation of children. The sentencing judge also accepted the respondent had used the internet to facilitate and encourage the ongoing corruption and abuse of a child. 35The sentencing judge stated that, taking into account the penalty the legislature had prescribed for the offence, the appropriate term of imprisonment, but for the guilty plea, would be 45 months. Taking into account the discount for the plea of guilty, the sentencing judge held the appropriate sentence would be reduced to a period of 36 months to date from 25 November 2013 and expire on 24 November 2016. 36The sentencing judge stated that in fixing a non-parole period for the Commonwealth offences he had regard to the report of Dr Pilsky and the evidence of the respondent. He referred to the respondent's evidence of the catastrophic effect that the arrest and charge had on him and his family and his suicidal thoughts. The sentencing judge also had regard to the respondent's evidence that he had attended rehabilitation courses and intended to continue to do so upon his release on parole. 37The sentencing judge referred to the report of Dr Pilsky, which stated that the respondent's addiction to child pornography required ongoing stimulation and served to maintain the offending conduct. He then noted that Dr Pilsky's opinion was that the respondent was a case of typical denial, holding the view that as long as he was not abusing the victim directly, accessing child pornography did not harm anybody. 38The sentencing judge noted the opinion of Dr Pilsky that the respondent required long term treatment and a treatment plan had been extensively discussed with him and he had agreed to all elements of it. 39The sentencing judge referred to the evidence that the respondent was no longer in denial, that his offending was compartmentalised from his ordinary life and that he had never abused a minor directly. The sentencing judge also referred to the respondent's evidence that he had been abused by his uncle when he was a young person. 40The sentencing judge also noted the opinion of Dr Pilsky that the shame of being brought before the Court and the guilt of putting his family through a traumatic experience was sufficient to prevent the respondent from further offending. 41In the circumstances the sentencing judge fixed a non-parole period in respect of the Commonwealth offences of 22 months commencing on 25 August 2013 and expiring on 24 June 2015.

The grounds of appeal 42The appellant relied on the following grounds of appeal: "1. His Honour erred by imposing a sentence in respect of the offence of transmitting child pornography on 3 or more occasions to two or more people that was manifestly inadequate, particularly having regard to the maximum penalty of 25 years imprisonment; and 2. His Honour erred by imposing overall sentences that were, in all the circumstances, manifestly inadequate, in that they: (a) fail to reflect totality in sentencing and the separate offending by way of sufficient accumulation of the sentences imposed; and (b) fail to reflect a sufficient regard to both specific and general deterrence."

(a) The parties' submissions 43The Crown submitted that s 16A(1) of the Crimes Act (Cth) required the imposition of a sentence that was of a severity appropriate in all the circumstances. The relevant circumstances included amongst other things the matters specified in s 16A(2), as were relevant and known to the Court. 44The Crown submitted that the aggravated transmission offence carried a significantly greater penalty than the transmission offence. The Crown submitted that this reflected the intention of Parliament that persons convicted of an aggravated transmission offence would, in the ordinary course, incur a significantly greater penalty than for a transmission offence. 45The Crown acknowledged that the sentencing judge referred to the maximum penalty for the aggravated transmission offence but submitted that his characterisation of the seriousness of the offence was not reflected in the sentence imposed. The Crown pointed out the sentence was only a few months greater than the sentences imposed for the access offence and the transmission offences. 46Senior counsel for the Crown accepted that the maximum penalty provided for the offence was a yardstick to be taken into account with all other relevant factors. However, he submitted that it was an important yardstick to which the sentencing judge should have paid greater regard. 47Senior counsel for the Crown accepted that there was no network involved in the present case. However he submitted that the reference to "networks" in the second reading speech to the legislation introducing the aggravated transmission offence (the Legislation Amendment (Sexual Offences Against Children) Bill 2010 (Cth)) (the Second Reading Speech), could not be used to limit the words of the section. 48Senior counsel for the Crown also submitted that no assistance could be gained from the sentence imposed by the District Court in R v Coupland (NSWDC, 22 June 2012) as it was a different offence, not being a transmission case. 49The respondent in his submissions referred to R v Coupland supra. He pointed out that in that case the offender was found to be operating in an established network of 187 persons sharing 511 files. He pointed to the fact that despite the relatively less serious nature of the offences in the present case, a sentence of 2 years and 8 months was imposed in R v Coupland compared to 3 years in the present case. 50The respondent submitted that the factors outlined in Minehan v The Queen [2010] NSWCCA 140; (2010) 201 A Crim R 243 provided indicia for the assessment of the objective seriousness of offences involving child pornography. He emphasised that there was no evidence to suggest proximity between him and those who brought the pornography into existence and no evidence that he operated within an organised network. 51The respondent also submitted that the Crown in the sentencing hearing stated, contrary to Minehan v The Queen supra, that the lack of financial benefit did not detract from the seriousness of the offence. He also submitted that there was no evidence to suggest that any victim as portrayed in the images was aware of his activities or that his activities created a network for child pornography. He submitted that the fact that the sentencing judge took those matters into account operated unfairly against him. 52The respondent also pointed to the Second Reading Speech stating that the aggravated transmission offence was directed to child pornography networks, something not involved in the present case. 53Counsel for the respondent whilst accepting the maximum penalty was the yardstick to be taken into account, pointed to the fact that the offence could encompass a wide variety of circumstances. He pointed out in the present case that 86 images were transmitted to 10 persons, 52 of which were in the lowest category. He submitted this was a far less serious offence than that dealt with in R v Coupland supra. 54The respondent also pointed to the subjective circumstances. He submitted that the evidence established that he had a significantly improved level of insight into the effect of his behaviour, noting the material in the report of Dr Pilsky and his evidence to which I have referred in pars [37]-[39] above. The respondent submitted that there was clear evidence of a treatment programme in the report of Dr Pilsky. He submitted that that evidence would persuade the Court the sentence was not manifestly inadequate.

Consideration 55It is well established that for manifest inadequacy to be made out it must be established that the sentence is unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25]. Alternatively, the sentence must be outside the range of sentences that could have been imposed such that the appellate court concludes there must have been some misapplication of principle even though where or how is not apparent from the statement of reasons: Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 at [59] and Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [58]. 56As I indicated, the Crown placed particular reliance on the maximum penalty prescribed for the offence. However, it must be remembered that the maximum penalty is a yardstick to be taken into account with all other relevant matters, including in the case of Commonwealth offences, the matters referred to in s 16A of the Crimes Act (Cth). In Markarian v The Queen supra at [30]-[31] the plurality emphasised that careful attention to the maximum penalty will almost always be required. This is because it makes possible a comparison between the worst possible case and the one before the court and because it provides, taken and balanced with all other relevant factors, a yardstick. 57In Minehan v The Queen supra, R A Hulme J, after a review of the authorities, conveniently summarised factors to be taken into account concerning offences involving the possession and dissemination of child pornography, when assessing the objective seriousness of the offences. His Honour at [94] summarised the position as follows (Macfarlan JA and Johnson J agreeing): "[94] Drawing primarily from the authorities to which I have referred, the following matters may be relevant to an assessment of the objective seriousness of offences involving the possession or dissemination/transmission of child pornography: Whether actual children were used in the creation of the material. The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed. The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material. The number of images or items of material - in a case of possession, the significance lying more in the number of different children depicted. In a case of possession, the offender's purpose, whether for his/her own use or for sale or dissemination. In this regard, care is needed to avoid any infringement of the principle in R v De Simoni (1981) 147 CLR 383; 5 A Crim R 329. In a case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted. Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination/transmission. The proximity of the offender's activities to those responsible for bringing the material into existence. The degree of planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating or transmitting the material. Whether the offender acted alone or in a collaborative network of like-minded persons. Any risk of the material being seen or acquired by vulnerable persons, particularly children. Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted. Any other matter in s 21A(2) or (3) Crimes (Sentencing Procedure) Act (for State offences) or s 16A Crimes Act 1914 (Cth) (for Commonwealth offences) bearing upon the objective seriousness of the offence." 58In this context the Victorian Court of Appeal in Director of Public Prosecutions (Cth) v D'Alessandro [2010] VSCA 60; (2010) 26 VR 477 noted there was substantial support across jurisdictions for a number of propositions (per Harper JA at [21], Williams AJA agreeing): "[21] When construing and applying Commonwealth legislation, this Court follows principles of comity in according respect to the decisions of intermediate appellate courts of other jurisdictions concerning the same legislation. It is therefore worth recording that there seems to be unanimous support across the jurisdictions for a number of propositions. First, that the problem of child pornography is an international one. Secondly, that the prevalence and ready availability of pornographic material involving children, particularly on the internet, demands that general deterrence must be a paramount consideration. Thirdly, that those inclined to exploit children by involving them in the production of child pornography are encouraged by the fact that there is a market for it. Fourthly, that those who make up that market cannot escape responsibility for such exploitation. Fifthly, that limited weight must be given to an offender's prior good character. Sixthly, that a range of factors bear upon the objective seriousness of the offences to which the respondent in this case pleaded guilty.They include: the nature and content of the pornographic material - including the age of the children and the gravity of the sexual activity portrayed; the number of images or items of material possessed by the offender; whether the possession or importation is for the purpose of sale or further distribution; whether the offender will profit from the offence." (References omitted). See also R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29 at [64]. 59What is clear from the cases is that general deterrence is a matter of considerable significance in sentencing for offences of this nature. 60Taking the matters referred to in those cases into account, along with the subjective factors relevant to the respondent to which the trial judge referred (see pars [36]-[40] above), I am of the view the sentence was not manifestly inadequate. 61In assessing the objective seriousness of the offence, it is necessary to bear in mind that the aggravated transmission offence involved the minimum number of occasions of transmission necessary for the offence to be committed. Second, the transmission on each occasion went to no more than four email accounts. Third, well over half the images/videos transmitted were in the least serious category (category 1), whilst only approximately 19% were in the worst two categories. 62Further, the Second Reading Speech cannot be used to read down the plain words of the legislation in the manner suggested by the respondent: see Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378 at [25] and [26]. However, the fact that the respondent was not a member of a network is a relevant factor as is the fact that the respondent did not profit from the dissemination of the material. 63This is not to gainsay the seriousness of the offence involving the promotion and maintenance of a market for sexual exploitation, degradation and humiliation of young children. The seriousness is evident from the significant maximum penalty and more importantly the effect of this type of conduct on child victims. However, it remains the fact that in my view the offence is towards the lower end of the range of offences of this nature. Further, in this context it must be recognised that the judge was cognisant of the maximum penalty. 64Taking these matters into account it seems to me that a sentence of 3 years, after a 20% discount for the guilty plea, whilst lenient, could not be said to be manifestly inadequate. Questions of accumulation and the non-parole period are dealt with in Ground 2. 65It follows that this ground of appeal is not made out.

(a) The parties' submissions 66During the course of the hearing there was a debate as to the scope of this ground. Senior counsel for the Crown contended that the ground was not confined to the particulars but was wide enough to challenge the individual sentences. Further, senior counsel for the Crown submitted that Ground 2(b) envisaged a challenge to the individual sentences as failing to pay sufficient regard to both general and specific deterrence. 67The issue arose specifically in relation to the indecent communication offence. 68Counsel for the respondent stated that he had a "disquiet" about the raising of this issue. He submitted that the grounds of appeal were all about totality. However, he conceded that during the sentencing proceedings at first instance he had submitted that logically the conduct the subject of the indecent communication offence was different and might result in some accumulation. 69Notwithstanding, counsel for the respondent stated that it was his primary submission that the Court should not elide the distinction made in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610. Namely, the need to give separate consideration to the term of each individual sentence before issues of accumulation and totality are considered. 70The written submissions for the Crown on this ground focused on what was described as manifest inadequacy by "manifestly excessive concurrency". The Crown submitted that the total head sentence was manifestly inadequate because of insufficient accumulation and for similar reasons the single non-parole period for the Commonwealth offences was also manifestly inadequate. 71In dealing with this issue at the hearing senior counsel for the Crown emphasised that the indecent communication offence was part of a separate stream of offences to the access and transmission offences, which involved no direct communication with any child. He accepted that care had to be taken not to offend the principle in The Queen v De Simoni supra by relying on facts which would have constituted the offence of grooming, contrary to s 474.27 of the Criminal Code. Such an offence carries a more serious maximum penalty. He emphasised in this context that it was important to focus on the communications themselves as distinct from the effect they may have had on the child's conduct. 72In this context senior counsel for the Crown submitted that the level of depravity contained in the communication itself puts the offence at the highest level of indecent communication. He stated that it was difficult to think of a worse category of this particular offence. 73The Crown submitted that the respondent was an end user and supplier of child pornography. In addition it was submitted he was a person who encouraged the production of child pornography. It was submitted that the State, transmission and access offences committed by the respondent were not offences where sentences for one could reflect the criminality of the other. 74The Crown also emphasised that the transmission and access offences necessarily involved a degree of leniency, because each involved numerous acts of access and transmission that were capable of constituting separate offences. The Crown submitted that a sentence in which the non-parole period for the Commonwealth offences was wholly subsumed within the fixed term for the State offence was manifestly inadequate. 75The Crown submitted that the prevalence and ready availability of child pornography, particularly on the internet, demanded that general deterrence be the primary sentencing consideration for the offences in question. It was submitted that specific deterrence was also highly relevant, particularly having regard to the following factors. First, the number and nature of videos and images in the respondent's possession; second, the finding of the judge that one reason for possession was further distribution; third, the fact that the offending was not isolated and involved a variety of offences; fourth, the encouragement of the nine year old girl to provide details of the abuse to which she was subject; fifth, the fact that the respondent attempted to minimise the seriousness of his offence by asserting he had never abused a minor directly; sixth, the lack of any genuine insight as to the effect of his actions; and finally, the lack of any clear strategy to address the risk of re-offending. 76Senior counsel for the Crown also submitted that it was not correct that the Crown had suggested to the Court below that an accumulation of one month between the different Commonwealth offences was appropriate. He submitted that the solicitor who had appeared at the hearing merely made reference to a case where that occurred. 77The respondent submitted that the principle of totality could never be subservient to sentence structure. He submitted the decision to accumulate is limited by the need to keep the sentences proportional to the offending conduct. 78The respondent submitted that the Crown had in fact urged the Court to impose substantially concurrent sentences. He put that the Crown had suggested accumulation which would result in a net increase of sentence of 3 months and that the judge sentenced in accordance with that suggestion. 79The respondent submitted that if the sentences were manifestly inadequate there was no purpose in singling out the failure to take account of general or specific deterrence as a ground for error. He also contended that in submitting that inadequate account was taken of the need for specific deterrence, the Crown was seeking to overturn the findings in favour of the respondent made by the sentencing judge on that issue. 80The respondent also emphasised no complaint was made as to the adequacy of individual sentences. I refer to the debate on this issue above. 81In relation to the indecent communication offence, counsel for the respondent emphasised the caution which had to be taken to avoid offending the De Simoni principle. He submitted it was not an incitement offence or a grooming offence and that consideration should be limited to the type of communication itself. 82Counsel for the respondent submitted that even if error was demonstrated the Court in the exercise of its residual discretion should not resentence the respondent. He submitted any variation to the sentence for the aggravated transmission offence would only amount to tinkering and because of the absence of any obvious error in the reasoning of the sentencing judge, the case had limited capacity to expound principles to guide the lower courts. He also submitted that the Crown should be bound by the conduct it took at the sentencing hearing.

(b) Consideration 83As the argument at the hearing developed this ground essentially raised two issues. First, whether the sentence on the indecent communication offence was manifestly inadequate and, second, whether the overall sentence failed to reflect totality in sentencing by way of sufficient accumulation of the sentences imposed. 84As I indicated there was some debate on the question of whether the ground of appeal was wide enough to encompass the first issue. In my opinion it was. The opening words of Ground 2 refer to sentences in the plural and it was stated relevantly that they (the sentences) were manifestly inadequate in that they failed to reflect a sufficient regard to both general and specific deterrence. 85The trial judge dealt with the sentence for the indecent communication offence relatively briefly and it is useful to set out his remarks in full: "The next offence to which the offender has pleaded guilty is that between 7 April 2012 and 12 May 2012 he did transmit indecent communication to a person under sixteen contrary to s 474.27A subs (1) of the Criminal Code 1995. On the agreed facts between September 2012 and November 2012 a review was made of a copy of the data acquired from the offender's yahoo e-mail and chat communications. It was determined that the defendant had transmitted indecent communications to a person under sixteen years of age through e-mail account [...].The review of communications between the offender and the under sixteen years user of the e-mail address identified 199 image/video child pornography files were transmitted by the offender's e-mail account [...]. Of the 199 image video files which were classified as child pornography, twenty-five were classified as category 1, ten as category 2, seventy-seven as category 3, sixty-seven as category4 and twenty as category 5 on the Oliver scale. In additionthere were a total of thirteen chat sessions between theoffender and the under sixteen years user of e-mail account [...]. Of the thirteen chat sessions, thirteen were classified as category 4 on the Oliver scale. An extract from some of the chats are attached to the Crown brief. The chats show encouragement to send pictures that would be required of the particular sexual activity and show encouragement for the child to perform for the camera and emphasise the degradation of the victim. In relation to this offence the Crown submits that the victim was a nine year old girl and that the offender had used his on-line relationship with the victim's father to gain access by way of e-mail and chats to the victim. The Crown also submits that the offender requested details about the nature of the abuse that the victim was subjected to by her father and requested naked photographs of the victim and photographs of the victim being abused. This is a reference to the chats to which I have earlier referred. I consider that the appropriate term of imprisonment for this offence would be a period of imprisonment of two years after taking into account his plea of guilty which would commence on 25 October 2014 and would expire on 24 October 2016." 86It would seem that the sentencing judge concluded that the appropriate sentence prior to taking into account the plea of guilty was 2 years and 6 months. 87Although the sentencing judge made brief reference at the outset of his remarks on sentence that general deterrence and specific deterrence loom large in the sentencing exercise before him, there is nothing to suggest he took the importance of general deterrence into account in considering the appropriate sentence for the indecent communication offence. His reasoning was confined to a general description of the images and chat sessions, noting the submissions of the Crown without identifying whether he accepted or rejected them in imposing the sentence. 88It seems to me in those circumstances the sentencing judge failed to turn his mind to the issue of general deterrence. It follows in my opinion that the sentencing judge erred in sentencing the respondent for this offence on this ground. In resentencing the respondent for this offence I have emphasised the factors that demonstrate the importance of general deterrence and why the failure by the sentencing judge to take this and specific deterrence into account, resulted in a manifestly inadequate sentence (as to which see pars [98]-[106] below). 89The sentencing judge in my opinion also erred in dealing with the issues of accumulation and totality. The structure of the sentences imposed resulted in the whole of the non-parole period for the Commonwealth offences being served concurrently with the State offence. Further, the transmission and the access offences were to be served concurrently, save for a period of one month with a total term of imprisonment for all offences being 3 years and 4 months. 90In my opinion the approach taken by the sentencing judge failed to take into account the overall criminality involved in all the offences for which the respondent was convicted: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 308, Pearce v The Queen supra at [40] and R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481 at [11]-[14]. Whilst this is most evident in the non-parole period for the Commonwealth offences, it is also reflected in my view in the overall sentence. Further, the fact that there was only a total of one month's accumulation in respect of the access and transmission offences' sentences and the fact that the indecent communication offence sentence was to be served wholly concurrently with the other sentences, failed in my opinion to take account of the different nature of the criminality involved in each offence. 91In these circumstances, Ground 2 of the grounds of appeal has been made out.

The residual discretion 92It is necessary to consider whether notwithstanding the errors made by the sentencing judge, the Court in the exercise of its residual discretion should decline to resentence the respondent. That discretion is to be exercised having regard to the fact that the principal purpose of Crown sentence appeals is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons: see Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [1] and the cases cited. The plurality at [36] described the purpose as a limiting purpose, not extending to the general correction of errors made by the sentencing judge: see also R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1 at [70]. 93In Director of Public Prosecutions v Karazisis [2010] VSCA 350; (2010) 31 VR 634, the Victorian Court of Appeal at [104] stated that factors which might be relevant to the exercise of the residual discretion included delay, parity, the totality principle, rehabilitation and fault on the part of the Crown: see also Green v The Queen; Quinn v The Queen supra at [36] where Director of Public Prosecutions v Karazisis is cited with apparent approval (fn 101). 94In the present case it seems to me that the Court should resentence the respondent notwithstanding the residual discretion. The sentence on the indecent communication offence was manifestly inadequate, as was the degree of accumulation and the total sentence imposed. Further, no regard was paid to the principles underlying sentences for cases of this nature laid down by this Court in Minehan v The Queen supra and by the Victorian Court of Appeal in Director of Public Prosecutions (Cth) v D'Alessandro supra. It is necessary in my opinion to send clear guidance to sentencing courts as to the seriousness of these offences and the principles to be applied in dealing with them, particularly the need for general deterrence. 95There was no delay in the bringing of the appeal in the present case. The Crown had indicated on the day of sentence that it would consider appealing and lodged its notice of appeal one month after that date. It was not suggested the appeal was not properly prosecuted. 96The matter principally relied on by the respondent in support of the proposition that the residual discretion should be exercised in his favour, was that the Crown submissions influenced the sentencing judge in determining both the length of the individual sentences and the appropriate degree of accumulation. The Crown submitted that there had to be some accumulation but not entire accumulation and referred to a decision involving somewhat similar offences, where the accumulation was apparently one month. However, the Crown did not submit that this course should be adopted, accepting that it was a matter for the sentencing judge. 97In these circumstances in my opinion it is appropriate to proceed to resentence the respondent.

(a) The indecent communication offence 98Consistently with what was said in Pearce v The Queen supra at [45], it is appropriate to determine the sentence which should be imposed for this offence prior to dealing with issues of accumulation or concurrence and the question of totality. 99The matters giving rise to the offence involve the transmission of 199 images/videos to a 9 year old child, 87 of which were in categories 4 and 5 on the Oliver scale. I have set out material indicating the nature of the chat sessions involved at par [15] above. The communications and the request made to the child are of the most degrading and humiliating kind, although not involving incitement or grooming. Although it is possible to envisage worse cases of this offence, these communications with a young child are of a very high level of seriousness. 100The need for general deterrence in sentencing for an offence of this nature must be emphasised. The ease of availability of this type of pornography on the internet and the ease that the internet can be used for communications such as those in question in the present case, highlight the need for general deterrence, particularly in the case of conduct directed to young children. 101In the present case there is also the need for specific deterrence. The report of Dr Pilsky states that the respondent has discussed a treatment plan with him and he has agreed to all elements and that in Dr Pilsky's opinion the respondent falls into a low risk category with regard to future offending. 102However, although the respondent said in his evidence he was willing to follow any recommendations of his psychiatrist once he re-entered the community, he stated he was not aware of any strategies or treatment to help him in addressing his sexual interest in children other than medication. He also stated that he was not undergoing any therapies with Dr Pilsky besides medication to address that sexual interest and he was not aware of any treatment plan after his release from custody. 103Further, the respondent stated that he did not know what the effect his conduct would have been on the children depicted on the images/videos. He subsequently qualified this by saying he did not know the extent of the effect and then stated as a result of his treatment he now believed it would be quite damaging. In relation to the indecent communication offence, he stated that during the chat sessions he had with the girl he was not aware of the harm she would experience as a result of her father's abuse although he said he understood at the time of sentencing that she would not have enjoyed the abuse. 104This evidence demonstrates in my opinion that although the respondent has some insight into the serious consequences of his offending and has expressed a willingness to undergo recommended treatment, there remains a risk of his re-offending and the need for some measure of specific deterrence. 105I have taken into account the subjective circumstances outlined by the sentencing judge, to which I have referred above (see pars [36]-[40]) and to the matters raised by the respondent on appeal (to which I refer in par [54] above). I have also taken into account the remorse shown by the respondent, reflected in his plea of guilty and the evidence given by him before the sentencing judge. I have paid some regard to the fact that apart from these offences, the respondent was otherwise of good character. 106Taking all the matters I have referred to above into account, I am of the view that the appropriate sentence for this offence is imprisonment for a term of 4 years and 2 months. I accept that the discount of 20%, apparently allowed by the sentencing judge for the willingness of the respondent to facilitate the course of justice as demonstrated by the plea, should be allowed. In these circumstances the appropriate sentence on this count is a term of imprisonment for 3 years and 4 months.

Accumulation and totality 107In considering the question of accumulation and totality I am prepared to accept that the sentence imposed by the sentencing judge for the State, access and transmission offences are appropriate and I have concluded that the sentence imposed for the aggravated transmission offence was not manifestly inadequate. 108In the circumstances I am of the opinion that a total term of 5 years imprisonment is an appropriate sentence to reflect the overall criminality in the present case. I would structure the sentence in the following manner so as to reflect the criminality involved in each offence: (i)For the State offence a fixed term of imprisonment of 2 years commencing on 25 July 2013 and expiring on 24 July 2015. (ii)For the transmission offence a term of imprisonment of 2 years and 8 months commencing on 25 November 2013 and expiring on 24 July 2016. (iii)For the access offence a term of imprisonment of 2 years and 8 months commencing on 25 March 2014 and expiring on 24 November 2016. (iv)For the aggravated transmission offence a term of imprisonment of 3 years commencing on 25 July 2014 and expiring on 24 July 2017. (v)For the indecent communication offence a term of imprisonment of 3 years and 4 months commencing on 25 March 2015 and expiring on 24 July 2018. 109A single non-parole period is required to be set for the Commonwealth offences by virtue of s 19AB of the Crimes Act (Cth). In all the circumstances I would set a single non-parole period for those offences of 3 years commencing on 25 November 2013 and expiring on 24 November 2016.

Orders 110In the result I would make the following orders: (1)Appeal allowed. (2)Order that the sentences imposed by the sentencing judge on 2 August 2013 be quashed and in lieu thereof the following sentences imposed: (a)For possession of child abuse material contrary to s 91H of the Crimes Act 1900 (NSW) a fixed term of imprisonment of 2 years commencing on 25 July 2013 and expiring on 24 July 2015. (b)For the offence of using a carriage service to transmit child pornography contrary to s 474.19(1)(a)(iii) of the Criminal Code Act 1995 (Cth) a term of imprisonment of 2 years and 8 months commencing on 25 November 2013 and expiring on 24 July 2016. (c)For the offence of using a carriage service to access child pornography contrary to s 474.19(1)(a)(i) of the Criminal Code Act 1995 (Cth) a term of imprisonment of 2 years and 8 months commencing on 25 March 2014 and expiring on 24 November 2016. (d)For the aggravated offence of transmitting child pornography on three or more occasions to two or more people contrary to s 474.24A(1)(a)(i) of the Criminal Code Act 1995 (Cth) a term of imprisonment of 3 years commencing on 25 July 2014 and expiring on 24 July 2017. (e)For the offence of using a carriage service to transmit an indecent communication to a person under the age of 16 years contrary to s 474.27A of the Criminal Code Act 1995 (Cth) a term of imprisonment of 3 years and 4 months commencing on 25 March 2015 and expiring on 24 July 2018. (3)With respect to the offences under the Criminal Code Act 1995 (Cth) there be imposed a single non-parole period of 3 years commencing on 25 November 2013 and expiring on 24 November 2016. 111ADAMS J: I agree with Bathurst CJ. 112R A HULME J: I agree with Bathurst CJ.

Amendments 11 November 2014 - Renumbering Amended paragraphs: All 12 November 2014 - Anonymising email account details Amended paragraphs: [85] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 November 2014

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