Court of Appeal (Qld)|2009-07-24|Before: Chief Justice, Keane JA and Wilson J, Separate, reasons for judgment of each member of the Court, each concurring as to the, order made
Chief Justice, Keane JA and Wilson J, Separate, reasons for judgment of each member of the Court, each concurring as to the
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
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE– GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLYEXCESSIVE ORINADEQUATE – where applicant was sentenced on his pleas of guilty tooffences under s 474.19(1) of the Criminal Code 1995 (Cth) – usinga carriage service (the internet) to access child pornography material, using acarriage service (the internet)to cause child pornography material to betransmitted to himself, and using a carriage service (the internet) to transmitchild pornographymaterial – where applicant also sentenced on his plea ofguilty to an offence under ss 210(1)(f) and 210(3) of the Criminal Code1899 (Qld) – recording an indecent visual image of a child under theage of 16 years without legitimate reason – whereapplicant sentenced oncounts 1-3 to six years’ imprisonment with a direction that he be releasedafter serving 32 months (i.e.45% of the head sentence), upon his givingsecurity by recognizance in the sum of $1,000 – where sentenced to six
months’
imprisonment on count 4 – where all sentences to be served
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
Judgment (118 paragraphs)
[1]
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
Director of Public Prosecutions (Commonwealth) for the respondent
[32]
[1] 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.
[33]
[2] 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.
[34]
[3] WILSON J: On 5 March 2009 Derek Richard Mara ("the applicant") was sentenced on his pleas of guilty to the following offences:
[35]
(i) use of a carriage service (the internet) to access child pornography material between 6 January 2006 and 29 February 2008;
[36]
(ii) use of a carriage service (the internet) to cause child pornography material to be transmitted to himself between the same dates;
[37]
(iii) use of a carriage service (the internet) to transmit child pornography material between the same dates; and
[38]
(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.
[39]
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).
[40]
[4] 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.
[41]
[5] The applicant seeks leave to appeal against the sentence for the Commonwealth offences on the grounds -
[42]
(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]
[43]
[6] 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.
[44]
[7] 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 -
[45]
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.
[46]
[8] 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.
[47]
[9] 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 -
[48]
(a) 75,706 images files of child pornography material and 763 movie/video files of such material on the external hard-drive;
[49]
(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
[50]
(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.
[51]
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 -
[52]
"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."
[53]
[10] His Honour was also struck by the degree of sophistication and level of skill in the use of the internet together with the limited risk of detection arising from it, which went a long way to facilitating the successful commission of the offences. He commented in his sentencing remarks -
[54]
"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."
[55]
[11] Count 4, the State offence, was constituted by the applicant's using his mobile phone to record about two minutes of "upskirting" footage of a five year old girl who was a friend of his family. She was on her bed, clothed, and unaware that her underwear was being filmed.
[56]
[12] On 29 February 2008 police executed a search warrant at the applicant's home and seized a quantity of computer equipment. After first refusing to be interviewed, on 1 March 2008 the applicant participated in a formal interview in which he made significant admissions, described by the prosecutor as "fulsome". He told police he had deleted his entire collection of pornography several times in the preceding years (including shortly after the police raid of his home which resulted in his being charged with cannabis offences in February 2007), but he had always found himself "coming back to it". About two and a half weeks later, he provided police with passwords without which they would not have been able to forensically interrogate areas of the hard drives. However, despite the applicant's cooperation, police still could not establish the identity of others in the group because of the high level of security and encryption.
[57]
[13] 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.
[58]
[14] 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.
[59]
[15] 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.
[60]
[16] 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".
[61]
Principles applicable to child pornography offences
[62]
[17] In the oft quoted words of Kennedy J in R v Jones[2] -
[63]
"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."
[64]
[18] 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.
[65]
[19] The sentencing judge observed perceptively -
[66]
"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.
[67]
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."
[68]
[20] Denunciation and deterrence (both general and personal) are particularly powerful considerations in sentencing for child pornography offences.[3]
[69]
[21] In R v Gent[4], 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 -
[70]
(a) the nature and content of the pornographic material - including the age of the children and the gravity of the sexual activity portrayed;
[71]
(b) the number of images or items of material possessed by the offender;
[72]
(c) whether the possession or importation is for the purpose of sale or further distribution;
[73]
(d) whether the offender will profit from the offence.
[74]
"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".
[75]
Those considerations are also apt in sentencing for the offences committed by the applicant.[5]
[76]
[22] It is a fundamental principle of sentencing that like cases should be treated in a like, or consistent, manner.[6]
[77]
[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 Gee[8] -
[78]
"[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."
[79]
[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]
[80]
[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.
[81]
[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]
[82]
[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:
[83]
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).
[84]
[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 DPP[11] Atkinson J said -
[85]
"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."
[86]
[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 -
[87]
"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."
[88]
Submissions in support of application for leave to appeal
[89]
(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;
[90]
(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, Fulop[12] and Colbourn[13] the effective term was substantially increased by sentences for State offences, whereas in the present case the State offence was of comparatively minor significance;
[91]
(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.
[92]
[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.
[93]
[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.
[94]
[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.
[95]
[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.
[96]
[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.
[97]
[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.
[98]
[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.
[99]
[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.
[100]
[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.
[101]
[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.
[102]
[41] The sentence imposed was not manifestly excessive. I would dismiss the application for leave to appeal against sentence.
[103]
[1] Outline of submissions on behalf of the applicant para 11.