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[2009] QCA 208
respondent. Application for leave to appeal against sentence dismissed. The concurrent sentences imposed at first instance remained undisturbed.
Mara’s application to challenge his sentence failed. The Court considered his participation in a sophisticated group distributing child exploitation material, the scale and seriousness of the material, and the multiple ways he used the internet to access and transmit it. It accepted that sentencing for Commonwealth offences should be broadly consistent across Australia, but said the usual 60–66 per cent actual-custody practice was neither a fixed rule nor limited to offences with an established sentencing tariff. The sentencing judge had considered the relevant circumstances and the sentence was not manifestly excessive.
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1,896 words · generated 02/10/2026
Derek Richard Mara applied for leave to appeal against the sentence imposed after he pleaded guilty to four offences: three Commonwealth offences under s 474.19(1) of the 1995 (Cth), and one Queensland offence under s 210(1)(f) and (3) of the 1899 (Qld) [3]. The Commonwealth offences covered using the internet to access child pornography, causing it to be transmitted to himself, and transmitting it to others. The State offence concerned recording an indecent visual image of a child under 16 without legitimate reason.
No linked legislation citations have been extracted yet.
The sentencing judge imposed six years’ imprisonment on the Commonwealth counts, directing release after 32 months on a $1,000 recognizance, subject to good behaviour and supervision. The six-month State sentence was concurrent, and 371 days of presentence custody were declared time served [4]. The Court of Appeal heard the application on 10 July 2009 and dismissed it on 24 July 2009. The Chief Justice and Keane JA agreed with Wilson J’s reasons and the order [1]–[2], [41].
The offending was not simply private possession. Mara was one of four “core” members of an internet group formed to pursue a common interest in child pornography. The group screened new members and used administrators, encryption, changing identities and newsgroup locations, and altered file extensions to limit detection [6]–[8]. Mara helped ensure security practices were followed, used at least eight nicknames, posted material, downloaded it, and helped others access it [8].
The judgment records that police found more than 75,000 image files and 763 videos on an external hard drive, along with other material on the internal drive. They also found evidence that Mara had uploaded at least 116 videos for the group’s use [9]. A separate count concerned footage recorded on a mobile phone of a five-year-old girl who was a family friend [11].
Mara relied on two grounds: that the sentence was manifestly excessive, and that the judge had wrongly fixed the period of actual custody by reference to a “notional starting point” that might have been 66 per cent of the head sentence [5]. The Court rejected both grounds.
The Court treated the sentence as an integrated whole. Wilson J said that the actual-custody period could not be assessed separately from the head sentence and the presentence-custody declaration, because the balance would be served on parole or under the recognizance release order [31]. This meant the appeal was not decided simply by comparing the 32-month custody period with a percentage in other cases.
The seriousness of the offending supported the head sentence. The Commonwealth counts reflected three forms of conduct: accessing, receiving through transmission, and transmitting material to others. The Court contrasted this with Fulop and Colbourn, which each involved one Commonwealth access count and one State possession count [33]–[35]. It concluded that the objective seriousness of Mara’s offending was not comparable to the cases in the sentence schedule [32]. The six-year head sentence was appropriate even without the concurrent sentence for the State offence [36].
The Court also relied on the sophistication involved and the reduced risk of detection. The group’s encryption, changing identities and file disguises were not merely incidental technical details. Wilson J upheld the sentencing judge’s assessment that they facilitated the offending and made it harder to detect [10], [37]. The applicant’s argument that the Queensland provisions on distributing and possessing child exploitation material were analogous to his Commonwealth offences was rejected. The Court said those provisions did not provide for State offences analogous to the Commonwealth offences he committed [37].
A central issue was the 60–66 per cent practice described in R v CAK & CAL; ex parte Cth DPP [2009] QCA 23. The sentencing judge considered that practice alongside Queensland’s more commonly used one-third period and the reported practices elsewhere. He ordered release after 32 months, described as 45 per cent of the head sentence, taking into account the guilty pleas, cooperation, and psychological report [27]–[29].
Wilson J accepted the importance of consistency for Commonwealth offences but rejected the claim that the 60–66 per cent practice should only apply where a settled tariff exists. The fact that the offence is a Commonwealth offence is itself a reason for courts around Australia to strive for consistency [39]. She also rejected a proposed limit to particular offence classes: the practice had been applied to dishonesty, drug, and other offences [40]. But the judgment did not convert that practice into a binding mathematical rule. Fixing actual custody remained a matter of discretion, and the Court emphasised the variation between jurisdictions [25], [38].
The judgment proceeded from existing principles rather than announcing a new sentencing code. It cited the principle that like cases should be treated consistently, drawing on Lowe v The Queen [22]. It also explained why federal offences are sentenced in State courts: s 80 of the Commonwealth Constitution requires a trial on indictment in the State where the offence was committed, while s 68 of the Judiciary Act 1903 (Cth) gives State courts federal jurisdiction and makes relevant State procedural laws applicable [23]. The reasons cite Williams v the King (No 2) and Putland v The Queen on that framework.
Against that background, the judgment addressed a practical difficulty: State and Territory sentencing and release practices differ. The Court’s clarification was that this variation does not justify limiting consistency efforts to offences with a settled tariff or to a narrow category of offences [39]–[40]. At the same time, the 60–66 per cent practice did not operate as a rigid rule. The judge had to exercise discretion in the particular case, with the relevant circumstances and local practice in view [25], [38].
The decision also applied existing sentencing considerations for child pornography offences. It referred to the factors in R v Gent, including the nature and content of the material, the number of items, whether it was distributed, and whether the offender profited [21]. It noted the particular force of denunciation and deterrence in these cases [20]. The judgment did not establish a numerical penalty scale based on those factors.
The supplied judgment does not state how later courts treated Mara. It therefore supports describing the decision’s reasoning and its relationship to earlier authorities, but not asserting a subsequent line of treatment or that any later court adopted, limited, or rejected it.
At [31], Wilson J wrote: “Sentencing is, of course, an integrated process”. In plain English, the court does not decide whether a sentence is excessive by examining the period in custody alone. It considers how the head sentence, actual custody, release conditions, and presentence custody work together.
At [38], the Court said the sentencing judge recognised that actual custody was “always a matter within the Court’s discretion” and sought to balance differing practices. This makes clear that percentages reported in other jurisdictions are relevant context, not an automatic calculation.
At [39], Wilson J said that Commonwealth offences give State and Territory courts a sufficient reason to strive for consistency. She rejected the argument that this aim only matters where courts have already developed a settled tariff. The point is to avoid outcomes turning on whether an offence is old and frequently prosecuted or comparatively new and less often considered.
At [40], the Court explained that the 60–66 per cent practice was not confined to particular offence types. The examples included dishonesty and drug offences, as well as other matters. This supports a broad consistency principle, while leaving the ultimate decision to judicial discretion.
Finally, at [41], Wilson J concluded: “The sentence imposed was not manifestly excessive.” The application was therefore dismissed. That is a case-specific result, not a finding that every sentence with the same head term or release percentage would be appropriate.
Mara is most relevant where a Queensland sentencing appeal concerns a Commonwealth offence and the parties dispute how to treat a reported cross-jurisdictional practice for actual custody. It addresses arguments that a commonly reported 60–66 per cent range should apply only to offences with an established tariff or only to certain offence classes [39]–[40].
It is also relevant where the appellant argues that the custody period should be considered independently from the head sentence. The judgment expressly rejects that separation: the components form an integrated sentencing process [31].
For child pornography offences, the case illustrates the potential significance of conduct beyond personal possession. The Court considered the scale of the collection, the nature of the material, the applicant’s contribution to distribution, his role in a group, and the technical measures used to prevent detection [6]–[10], [21], [32]–[37]. Those details formed part of the Court’s reasoning about objective seriousness; the decision does not say that any one factor automatically determines sentence.
The judgment is less directly comparable where the offences, roles, conduct, material, or release arrangements differ materially. It itself cautioned that the scheduled cases did not have comparable objective seriousness [32]. It also distinguished the structure of Fulop and Colbourn from Mara’s three Commonwealth counts and the concurrent State count [33]–[36].
The judgment supplied for analysis contains no post-2009 decisions discussing R v Mara. Its references to R v Mokoena [2009] QCA 36 and R v Gambier [2009] QCA 138 are part of its own consideration of earlier or contemporaneous examples of discretionary sentencing practice [40]. They are not evidence of later judicial treatment of Mara.
The decision does identify the authorities it relied on. It cited Lowe for consistency in sentencing [22], R v Gee and federal-jurisdiction authorities for the role of State courts in sentencing Commonwealth offenders [23], and R v CAK & CAL for the 60–66 per cent practice [28]. It considered Fulop and Colbourn as factual comparisons, but found their offending structures distinguishable [33]–[35].
On the source available here, no claim can responsibly be made about whether later courts followed, distinguished, or limited Mara. Establishing that would require later judgments or other legal sources, which are not included in the supplied material.
The judgment leaves the precise relationship between broad national consistency and local sentencing practice to case-by-case judgment. It says courts should strive for consistency, but also recognises different State and Territory practices and preserves discretion [24]–[25], [38]. It does not prescribe a formula for reconciling those considerations in every case.
Nor does it define the circumstances in which a period outside the 60–66 per cent practice would be justified. It rejects the applicant’s proposed restrictions, but does not provide an exhaustive test for selecting a particular percentage [39]–[40]. The reasons instead explain why the sentencing judge’s approach in this case was not erroneous.
The judgment also does not provide a comprehensive scale for sentences for online child exploitation offences. It identifies seriousness considerations and applies them to Mara’s conduct, but the result depends on the scale, nature, distribution, technical sophistication, and offender role described in the reasons [21], [32]–[37].
Finally, the decision does not address later changes in legislation or sentencing practice, and the supplied text does not establish its subsequent treatment. Those are matters that cannot be resolved from this judgment alone.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Mara [2009] QCA 208
PARTIES: R v MARA, Derek Richard (applicant)
FILE NO/S: CA No 58 of 2009 / DC No 60 of 2009
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING COURT: District Court at Townsville
DELIVERED ON: 24 July 2009
DELIVERED AT: Brisbane
HEARING DATE: 10 July 2009
JUDGES: Chief Justice, Keane JA and Wilson J / Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER: Application for leave to appeal against sentence dismissed
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant was sentenced on his pleas of guilty to offences under s 474.19(1) of the Criminal Code 1995 (Cth) – using a carriage service (the internet) to access child pornography material, using a carriage service (the internet) to cause child pornography material to be transmitted to himself, and using a carriage service (the internet) to transmit child pornography material – where applicant also sentenced on his plea of guilty to an offence under ss 210(1)(f) and 210(3) of the Criminal Code 1899 (Qld) – recording an indecent visual image of a child under the age of 16 years without legitimate reason – where applicant sentenced on counts 1-3 to six years’ imprisonment with a direction that he be released after serving 32 months (i.e. 45% of the head sentence), upon his giving security by recognizance in the sum of $1,000 – where sentenced to six months’ imprisonment on count 4 – where all sentences to be served concurrently – whether sentence manifestly excessive – whether sentencing judge erred in fixing period of actual custody at 45% of head sentence / Commonwealth Constitution, s 80 / Criminal Code 1995 (Cth), s 474.19(1) / Criminal Code 1899 (Qld), s 210(1)(f), s 210(3), s 228C and s 228D / Judiciary Act 1903 (Cth), s 68 / Bick v The Queen [2006] NSWCCA 408, cited / GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22, cited / James v The Queen [2009] NSWCCA 62, cited / Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited / Ly v R [2007] NSWCCA 28, cited / Putland v The Queen (2004) 218 CLR 74; [2004] HCA 8, cited / R v Bernier (1998) 102 A Crim R 44, cited / R v CAK & CAL; ex parte Cth DPP [2009] QCA 23, applied / R v Carson [2008] QCA 268, cited / R v Colbourn unreported; Supreme Court of Tasmania; 15 August 2008, considered / R v Fulop unreported; County Court of Victoria; 20 December 2007, considered / R v Gambier [2009] QCA 138, considered / R v Gee (2003) 212 CLR 20; [2003] HCA 12, cited / R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370, applied / R v Jones (1999) 108 A Crim R 50; [1999] WASCA 24, cited / R v KU & Ors; ex parte A–G (Qld) [2008] QCA 154, cited / R v MacNeil-Brown [2008] VSCA 190, cited / R v Martinsen [2003] NSWCCA 144, cited / R v Mokoena [2009] QCA 36, considered / R v Plunkett [2006] QCA 182, cited / R v Stitt (1998) 102 A Crim R 428, cited / R v Sweet (2001) 125 A Crim R 341; [2001] NSWCCA 445, cited / R v Tran (2007) 172 A Crim R 436; [2007] QCA 221, cited / R v Wharley 175 A Crim R 253;[2007] QCA 295, cited / Studman v The Queen (2007) 175 A Crim R 143; [2007] NSWCCA 263, cited / Williams v the King (No 2) (1934) 50 CLR 551; [1934] HCA 19, cited
COUNSEL: J R Hunter SC for the applicant / W J Abraham QC for the respondent
SOLICITORS: Arthur Browne & Associates for the applicant / Director of Public Prosecutions (Commonwealth) for the respondent
CHIEF JUSTICE: I have had the advantage of reading the reasons for judgment of Wilson J. I agree that the application should be refused for those reasons.
KEANE JA: I have had the advantage of reading the reasons for judgment prepared by Wilson J. I agree with those reasons and with the order proposed by her Honour.
WILSON J: On 5 March 2009 Derek Richard Mara (“the applicant”) was sentenced on his pleas of guilty to the following offences:
(i)use of a carriage service (the internet) to access child pornography material between 6 January 2006 and 29 February 2008;
(ii)use of a carriage service (the internet) to cause child pornography material to be transmitted to himself between the same dates;
(iii)use of a carriage service (the internet) to transmit child pornography material between the same dates; and
(iv) recording an indecent visual image of a child under the age of 16 years without legitimate reason between 31 December 2007 and 1 February 2008.
The first three were offences under s 474.19(1) of the Criminal Code (Commonwealth), and the fourth was an offence under s 210(1)(f) and (3) of the Criminal Code (Queensland).
Convictions were recorded on all counts. On counts 1 – 3 he was sentenced to six years’ imprisonment with a direction that he be released after serving 32 months (ie 45 per cent of the head sentence), upon his giving security by recognizance in the sum of $1,000, conditioned that he be of good behaviour for three years and subject to the supervision of a probation officer for 18 months. On count 4 he was sentenced to six months’ imprisonment. All the sentences were to be served concurrently. Presentence custody of 371 days was declared time already served under the sentence.
The applicant seeks leave to appeal against the sentence for the Commonwealth offences on the grounds –
(a) that it was manifestly excessive; and
(b) that the sentencing judge erred in fixing the period of actual custody at 45% of the head sentence on the basis of a “notional starting point” that was necessarily higher and which may have been as high as 66%.1
Circumstances of offending
In mid-2004 the applicant and three others established a highly sophisticated group of individuals with the objective of pursuing a common interest in child pornography by the use of internet newsgroups. The four “core” members (of whom the applicant was one), screened, tested and subsequently admitted new members. They and two others comprised the “administrators”, who oversaw the internal workings of the group (including its structure, instructions relating to secure posting and the expectations placed upon members) and who assisted in its evolution. The core members and administrators were identified by nicknames. Other members of the group were known as the “trustworthy”. None of the group knew the true identity of any of the other members.
The group traded in a large quantity of child exploitation material, as well as purchasing and commissioning the production of such material. The offending material was posted to newsgroups as binary files that were unable to be viewed by anyone who did not have a “key”. The group used highly sophisticated techniques to avoid detection, including –
encryption that required the use of paired encryption keys to view the material and to communicate with other members: the keys were changed regularly (at least 15 times), and involved three different levels of security;
frequently changing nicknames;
changing the newsgroup location (on six occasions);
changing the file extension so as to disguise the nature of the file contents; and
utilising a program written by a group member specifically to automate the file extension change process.
The applicant was involved in ensuring that the encryption and security systems were followed, although according to his counsel another member called “Yardbird” was the gatekeeper. During his involvement he used at least eight nicknames to protect his identity. He posted editorial comment and large quantities of child pornography material for accessing and use by members of the group. He frequently downloaded such material. When he wanted a particular file he would post a message asking a group member to post the file for his use. He assisted others with the technical aspects of accessing the material. He did so for his own sexual gratification and that of other like-minded individuals. There was no commercial gain, and although he must have been aware that some members of the group made financial contributions towards a number of “custom made” videos, he did not make any financial contribution himself. He tried to withdraw from the group several times, but he was in the clutches of an addiction and returned with a great deal of enthusiasm.
In January 2006 police infiltrated the group. At that time it had 43 members. The police investigation lasted 26 months, and according to the applicant’s counsel he was inactive for 11 of those 26 months. During the period between 31 August 2006 and 29 February 2008 police collected in excess of 444,000 images and 1,100 movie/video files of child exploitation material which had been uploaded and advertised for use by the group. The applicant was arrested on 29 February 2008; his computer was seized and forensic examination revealed –
(a) 75,706 images files of child pornography material and 763 movie/video files of such material on the external hard-drive;
(b) 1,206 images of child pornography (recovered from the deleted space), 13 image files and 40 movie/video files of child pornography on the internal drive; and
(c) that between 7 January 2006 and 21 May 2007 the applicant had uploaded at least 116 movie or video files for the group’s use.
The sentencing judge was shocked and disturbed by the material uncovered, adopting the prosecutor’s description of it as “a cache of depravity”. He summarised it in these terms –
“The images overall were primarily of female children from babies to pre-pubescent age. They involved ejaculation, oral sex, vaginal and anal penetration. In one of the images … there was a female child five to eight years being vaginally and orally penetrated for a period of just under two minutes. There are images of infants being abused by adults in an abominable way. Some of the material that was uncovered in the investigation had been seen before by investigators but there was material that they had never seen before.”
“Your counsel submitted to me that the privacy of the group was a mitigating factor, that is, in the sense of limiting the public accessibility to the images. However, as he acknowledged, it’s a two-edged sword. The level of security and the careful scrutiny of aspiring entrants to the group and the sophistication and technical skill applied in the execution of the offences is an aggravating feature of the offences. The exclusivity of the group reduced the risk of detection and enabled members of the group to feed their common perversion with apparent impunity. By analogy, sophistication in the commission of frauds, the importation of drugs and burglary of homes is always a relevant aggravating factor on sentence. I consider it to be an aggravating factor in this sentence.”
Cooperation and remorse
The applicant’s personal circumstances
The applicant was aged 27 – 29 at the time of the offending and 30 at sentence. He was a married man with three young children. He was educated to Year 10. After leaving school he held a variety of jobs before joining Australia Post 10 or 11 years before his arrest where he rose from being a postman to being the acting human resource manager for North Queensland.
At about the age of 13 he commenced using marijuana and continued to do so in ensuing years. His only criminal history was of cannabis drug offences committed in February 2007, in relation to which no conviction was recorded and he was fined $800.
The applicant first obtained a computer in 1998 – 1999. At about then, at home for some time recovering from an accident and with access to the internet, he started accessing pornographic websites. His interest progressed to his becoming a core member of the group subsequently infiltrated by police.
Mr Robert M Walkley, a forensic psychologist who assessed him while he was on remand, considers that he conforms to a diagnosis of the sexual disorder paedophilia. He has no real insight or understanding as to why he found such abhorrent sexual images stimulating or as to why child exploitative material appeared to be his preference or why it led him to act in an illegal manner on a large number of occasions for a very long period of time. He is nevertheless “a man overwhelmed with his predicament, contrite, highly remorseful and…. genuine in his stated position that he desired to and had to change”.
Principles applicable to child pornography offences
“The production of child pornography for dissemination involves the exploitation and corruption of children who are incapable of protecting themselves. The collection of such material is likely to encourage those who are actively involved in corrupting the children involved in the sexual activities depicted and who recruit and use those children for the purpose of recording and distributing the results. The offence of possessing child pornography cannot be characterised as a victimless crime. The children, in the end, are the victims.”
The provisions of the Commonwealth and State Criminal Codes breached by the applicant’s offending conduct are directed at different aspects of the distribution and possession of child pornography. The Commonwealth provision focuses on the use of the internet to access and transmit child exploitation images, while the State legislation is concerned with the possession, preservation and sharing of such images. The maximum penalty for the Commonwealth offences was 10 years, imprisonment and that for the State offence 20 years.
The sentencing judge observed perceptively –
“The widespread use of the internet makes available to the international community of people like you an unprecedented volume of pornography in many forms that involve the exploitation of innocent children including defenceless and helpless infants to feed the craving for personal sexual gratification of a paedophilic nature, and to enable people such as you to interact together in the celebration of your cruel, unnatural and disgusting perversion.
The level of sophistication and attention to security in these offences demonstrate the lengths to which sexual predators such as you and the other faceless and largely undetected participants in this criminal enterprise are prepared to go.”
[20] Denunciation and deterrence (both general and personal) are particularly powerful considerations in sentencing for child pornography offences.3
[21] In R v Gent4, a decision of the NSW Court of Criminal Appeal, Johnson J (with whom the other members of the Court agreed) identified the range of factors relevant to the objective seriousness of an offence of possession or importation of child pornography as including –
(a) the nature and content of the pornographic material – including the age of the children and the gravity of the sexual activity portrayed;
(b) the number of images or items of material possessed by the offender;
(c) whether the possession or importation is for the purpose of sale or further distribution;
(d) whether the offender will profit from the offence.
His Honour continued –
“It might be worth noting, however, that the number of images as such may not be the real point. In a case of possession of child pornography for personal use only, the significance of quantity lies more in the number of different children who are depicted and thereby victimised”.
Those considerations are also apt in sentencing for the offences committed by the applicant.5
Principles applicable to Commonwealth offences
[22] It is a fundamental principle of sentencing that like cases should be treated in a like, or consistent, manner.6
[23] By s 80 of the Commonwealth Constitution the trial on indictment of any offence against any law of the Commonwealth is to be held in the State where the offence was committed. By s 68 of the Judiciary Act 1903 (Cth) State courts are invested with federal jurisdiction for this purpose, and State procedural laws relating to the trial and conviction are applicable. Sentencing laws come within that description.7 As Gleeson CJ observed in R v Gee8 –
“[This]…reflects a legislative choice between distinct alternatives: having a procedure for the administration of criminal justice in relation to federal offences that is uniform throughout the Commonwealth; or relying on State courts to administer criminal justice in relation to federal offences and having uniformity within each State as to the procedure for dealing with State and federal offences. The choice was for the latter.”
[24] Recognising that in a federal system sentencing practices vary from State to State, Judges sentencing persons who have committed Commonwealth offences necessarily strive to avoid inconsistencies as far as possible and to craft sentences to ensure that as far as possible like offending wherever committed in Australia is met with like punishment.9
[25] The setting of periods of actual custody before conditional release is an area in which there are markedly differing practices among the States and territories. Subject to any relevant statutory prescription, this is a matter within the discretion of the sentencing judge. I discuss counsel’s submissions on this point below.
The reasoning of the sentencing judge
[26] The sentencing judge rightly regarded the applicant’s conduct as warranting condign punishment. The prosecutor submitted that a head sentence of four to four and a half years with a recognizance release order after 16 to 18 months together with a period of supervision would be within the appropriate range. Defence counsel agreed with the structure of the sentence proposed by the prosecutor, but submitted that the level of the applicant’s cooperation, his insight and rehabilitation were factors warranting a shorter period of actual custody. His Honour was not persuaded that there was any directly comparable case supporting a term of four to four and a half years, and took the entirely proper course of rejecting the prosecutor’s submission and imposing the term which he considered reflected the gravity of the offending – six years.10
[27] In determining the time the applicant should be required to serve in actual custody pursuant to the recognizance release order, the sentencing judge took account of the widely differing practices throughout the country. The prosecutor produced a schedule summarising sentences for child pornography offences, which showed the following variations in the period of actual custody as a percentage of head sentence:
Queensland: a very wide range, but generally an average of 33%;
South Australia: 60 – 66%;
Victoria: 50 – 55%;
Western Australia: 0%, but all with head sentences of 2 years or under;
New South Wales: 60 – 66%, but with some as low as 33% and 55%; and
Tasmania: 55% (only one case).
[28] In Queensland, on a plea of guilty it is very common to set a non-parole period at one-third of the head sentence. The practice applies to sentencing for all types of offences. In R v CAK & CAL; ex parte Cth DPP11 Atkinson J said –
“The norm for non-parole periods and periods required to be served before a recognizance release order for Commonwealth offences is generally considered to be after the offender has served 60 to 66 per cent of the head sentence. The precise figure may be outside this range as it is a matter of judicial discretion and is not necessarily capable of precise mathematical calculation, but that is the usual percentage of the sentence. A sentence that was well outside that range would have to have most unusual factors to justify it.”
[29] Referring to “the tension that exists between the two sentencing regimes”, the sentencing judge ordered that the applicant be released after serving 45 per cent of the head sentence. His Honour said –
“That discount reflects your pleas of guilty, cooperation, as I’ve described it, and the matters relevant in the psychological report. It’s less than the range of discount for such factors in the Commonwealth sentencing regime, but more than the discount in Queensland [sic]. The significant level of cooperation in the self-incriminatory sense in this case is an unusual factor, as that term is used by her Honour in the case of R v CAK.”
Submissions in support of application for leave to appeal
[30] Counsel for the applicant submitted –
(a) that the sentencing judge erred in working from a “notional starting point” of 66% in fixing the period of actual custody: that the 60 – 66% regime referred to in the cases ought to be confined to limited classes of cases where there is a settled tariff and where there are important reasons of policy why there should be uniformity amongst the States;
(b) that even if there were no error of principle in working from a notional starting point of 66%, the sentencing judge erred in imposing a head sentence of six years: in the most serious of the cases in the schedule of comparable sentences put before the sentencing judge, Fulop12 and Colbourn13 the effective term was substantially increased by sentences for State offences, whereas in the present case the State offence was of comparatively minor significance;
(c) that ss 228C and 228D of the Criminal Code (Qld) provide for State offences analogous to those committed by the applicant – distributing child exploitation material (s 228C) and possessing child exploitation material (s 228D); had he been prosecuted for breaching State law, the State sentencing regime would have applied and he could have expected a lesser sentence than that fixed by the sentencing judge; accordingly a lesser sentence ought to have been imposed in this case.
Discussion
[31] Sentencing is, of course, an integrated process, and in considering whether a particular sentence is manifestly excessive the setting of a period of actual custody before conditional release cannot be viewed in isolation from other components, such as the term of imprisonment and any declaration in relation to presentence custody. It is logical to begin with the head sentence, as the balance of that time will have to be served on parole or pursuant to a recognizance release order after the period of actual custody.
[32] As counsel for the respondent submitted, in none of the cases on the schedule was the objective seriousness of the offending comparable to that in the present case.
[33] Fulop and Coulbourn each concerned one count of downloading pornographic material (a Commonwealth offence) and one count of possession (a State offence), in contrast to the present case where there were three Commonwealth charges reflecting an escalation in the nature of the applicant’s offending – accessing, transmitting to himself, and transmitting to others.
[34] In Fulop the defendant pleaded guilty to one count of using a carriage service to access child pornography contrary to s 474.19(a) of the Criminal Code (Cth) and one count of possessing child pornography contrary to s 70 of the Crimes Act 1958 (Vic). Some of the pornographic material was of an even worse kind than that in the present case. For the Commonwealth offence he was sentenced to three and a half years imprisonment with a non-parole period of two years, and for the State offence two and a half years imprisonment with a non-parole period of one and a half years cumulative on the Commonwealth sentence – an effective sentence of four years imprisonment with a non-parole period of three years.
[35] In Colbourn the defendant pleaded guilty to one count of use of a carriage service to access child pornography contrary to s 474.19(1) of the Criminal Code (Cth) and one count of possession of child exploitation material contrary to s 130C of the Criminal Code (Tas). For the State offence he was sentenced to four years imprisonment with a non-parole period of three years, and for the Commonwealth offence two years imprisonment, 18 months of which was made cumulative on the State sentence – an effective sentence of five and a half years with a non-parole period of three years.
[36] Having regard to the nature and extent of the applicant’s conduct in the present case the head sentence of six years would have been entirely appropriate even without the concurrent sentence of six months for the State offence. Indeed, as counsel for the respondent submitted, it would have been open to the sentencing judge to make the State sentence cumulative on the sentence for the Commonwealth offences.
[37] The Commonwealth offences to which the applicant pleaded guilty strike at the misuse of the internet to access and transmit child pornography. The sentencing judge rightly took account of the degree of sophistication and level of skill in the use of the internet and the attendant limited risk of detection in assessing the seriousness of the offending. Contrary to the submission of counsel for the applicant, ss 228C and 228D of the Criminal Code (Qld) do not provide for State offences analogous to those committed by the applicant.
[38] What then of the period of actual custody? Properly recognising that this is always a matter within the Court’s discretion and that there are widely differing practices across the country, the sentencing judge endeavoured to strike a reasonable balance between those practices.
[39] There is no substance in the submission of counsel for the applicant that the practice of fixing the period of actual custody at 60 – 66 per cent of the head sentence should be confined to limited classes of cases where there is a settled tariff and where there are important reasons of policy why there should be uniformity amongst the States. The very fact that the offences in question are Commonwealth offences is sufficient reason for State and Territory Courts across the country to strive for consistency in their sentencing of persons who commit them. To suggest that a practice should be prima facie applicable only where there is a settled tariff for an offence would lead to the abhorrent conclusion that the duration of a period of actual custody should depend not on what is a proper sentence in all the circumstances but rather on whether the offence is a newly created one for which there are no or few comparable sentences as opposed to one which has come before the Courts often enough for a tariff to have emerged.
[40] Finally, in so far as there is a practice of setting the period of actual custody for Commonwealth offences at 60 – 66 per cent of the head sentence, it is not confined to particular classes of offences. In CAK the Court was concerned with two counts of dishonestly obtaining a financial advantage by deception, and several of the cases cited by Atkinson J were concerned with dishonesty offences.14 But it has been applied frequently to other offences, including drug offences.15 The careful attention paid to setting the non-parole periods in R v Mokoena,16 a drug importation case, and R v Gambier,17 a case of using a carriage service to induce a false belief that an explosive had been left at a place, was a reflection of the discretionary character of the exercise and of the importance of consistency in performing it, rather than a reflection of any principled restriction of the practice to certain classes of cases.
Conclusion
[41] The sentence imposed was not manifestly excessive. I would dismiss the application for leave to appeal against sentence.
Outline of submissions on behalf of the applicant para 11. ↩
(1999) 108 A Crim R 50 at [9]. ↩
R v Carson [2008] QCA 268 at [32]; R v Plunkett [2006] QCA 182 at [6]; R v Wharley [2007] QCA 295 at [17]. ↩
(2005) 162 A Crim R 29 at [99]. ↩
See James v The Queen [2009] NSWCCA 62 at [10] – [11]. ↩
See Lowe v The Queen (1984) 154 CLR 606 at 610 – 611. ↩
See Williams v the King (No 2) (1934) 50 CLR 551 at 560; Putland v The Queen (2004) 218 CLR 74 at 178 – 179. ↩
(2003) 212 CLR 20 at 241. ↩
See R v Tran (2007) 172 A Crim R 436 at [8]; [2007] QCA 221. ↩
GAS v The Queen (2004) 217 CLR 198 at [30]; R v MacNeil-Brown [2008] VSCA 190 at [45]. See also R v KU & Ors; ex parte A–G (Qld) [2008] QCA 154 at [38]. ↩
[2009] QCA 23 at [18]. ↩
unreported; County Court of Victoria; 20 December 2007.
R
Mara [2009] QCA 208
(2004) 217 CLR 198
(1984) 154 CLR 606
(2004) 218 CLR 74
(2003) 212 CLR 20
(1934) 50 CLR 551
Application for leave to appeal against sentence dismissed. The concurrent sentences imposed at first instance remained undisturbed.
unreported; Supreme Court of Tasmania; 15 August 2008. ↩
R v Stitt (1998) 102 A Crim R 428***,*** R v Sweet (2001) 125 A Crim R 341***,*** R v Martinsen [2003] NSWCCA 144, Bick v The Queen [2006] NSWCCA 408, Ly v R [2007] NSWCCA 28 and Studman v The Queen (2007) 175 A Crim R 143. ↩
For example, R v Bernier (1998) 102 A Crim R 44, a drug importation case. ↩
[2009] QCA 36. ↩
[2009] QCA 138. ↩