R v Martin

Court of Criminal Appeal (NSW)|2014-09-02|Before: Beazley P, Hulme J, Garling J

esentation: Counsel: G Farmer SC (Appellant) J Stratton SC (Respondent) Solicitors: Commonwealth Director of Public Prosecutions (Appellant) Kapsis and Associates (Respondent) File Number(s): 2012/248376 Decision under appeal Jurisdiction: 9101 Date of Decision: 2013-11-22 00:00:00 Before: Sweeney DCJ File Number(s): 2012/248376

[This headnote is not to be read as part of the judgment] The respondent pleaded guilty to five child pornography charges, being one count of possessing child pornography contrary to the Crimes Act 1900 (NSW), s 91H(2); two counts of using a carriage service to access child pornography contrary to the Criminal Code 1995 (Cth), s 474.19(1)(a)(i); one count of producing child abuse material contrary to the Crimes Act, s 91H(2); and one count of making available child pornography material using a carriage service contrary to the Criminal Code s 474.19(1)(a)(iii). The sentencing judge imposed an individual sentence for each offence, and ordered that all the sentences be served concurrently. The total effective sentence imposed on the respondent was 3 years imprisonment with a non-parole period of 18 months. The Crown appealed pursuant to the Criminal Appeal Act 1912, s 5D, against the adequacy of each individual sentence, as well as the absence of any accumulation of the sentences imposed for the various offences.

The Court allowed the appeal.

The sentence imposed for the offence of using a carriage service to make available child pornography was manifestly inadequate, having regard to the objective seriousness of the respondent's conduct, the maximum penalty for the offence and the particular need for general deterrence. R v Gent [2005] NSWCCA 370; 162 A Crim R 29; Minehan v R [2010] NSWCCA 140; 201 A Crim R 243; Director of Public Prosecutions (Cth) v D'Alessandro [2010] VSCA 60; 26 VR 477.
The sentencing judge erred in failing to recognise two aggravating features of the possession offence, namely that the respondent had sorted, stored and duplicated the material and that he had attempted to destroy the material when he became aware the police wanted to execute a search warrant. R v Talbot [2009] TASSC 107; R v Olivier [2003] 1 Cr App R 28.
The sentencing judge erred in failing to partially accumulate the sentences imposed for the offences of making available child pornography and producing child pornography, which are significantly different in nature to the offences of accessing and possessing child pornography. The sentence imposed did not appropriately reflect the totality of the offending conduct. Pearce v R [1988] HCA 57; 194 CLR 610; Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41.
The identified errors were such as to require appellate intervention under the Criminal Appeal Act 1912, s 5D, and so the Court should not exercise its residual discretion to dismiss the appeal. Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462; R v Gommeson [2014] NSWCCA 159.

Judgment 1BEAZLEY P: On 22 November 2013, the respondent pleaded guilty to five child pornography charges before Sweeney DCJ. Her Honour imposed a total effective sentence on the respondent of 3 years imprisonment, comprising a non-parole period of 18 months with an additional term of imprisonment of 18 months. The individual counts, maximum penalty for each offence and sentence imposed by her Honour were as follows: Count 1: possessing child abuse material contrary to the Crimes Act 1900 (NSW), s 91H(2). For this offence, which carries a maximum penalty of 10 years imprisonment, the respondent was sentenced to a term of imprisonment of 2 years commencing on 22 November 2013, with a non-parole period of 18 months expiring on 21 May 2015. Count 2: using a carriage service to access child pornography contrary to the Criminal Code 1995 (Cth) (the Criminal Code), s 474.19(1)(a)(i). For this offence, which carried a maximum penalty of 10 imprisonment, her Honour imposed a sentence of 2 years imprisonment commencing on 22 November 2013. Count 3: using a carriage service to access child pornography contrary to the Criminal Code, s 474.19(1)(a)(i). For this offence, which carries a maximum penalty of 15 years imprisonment, her Honour imposed a sentence of 2 years imprisonment commencing on 22 November 2013. Count 4: producing child abuse material contrary to the Crimes Act, s 91H(2). For this offence, which carries a maximum penalty of 10 years imprisonment, her Honour imposed a fixed term of imprisonment for 9 months, commencing on 22 November 2013. Count 5: making available child pornography material using a carriage service contrary to the Criminal Code, s 474.19(1)(a)(iii). For this offence, which carries a maximum penalty of 15 years, her Honour imposed a sentence of 3 years imprisonment commencing on 22 November 2013. 2For counts 2, 3 and 5, being the Commonwealth offences, her Honour made a recognisance release order that the respondent be released after serving 18 months of his sentence on a recognisance of a self surety in the sum of $1,000. 3The sentences were to be served concurrently. In determining that the sentences be served concurrently, her Honour stated, at 14 of her remarks on sentence: "The total sentences must reflect the overlap between the offences of possessing, accessing, producing and making available child pornography material." 4Her Honour stated that she had considered the need for partial accumulation, but had decided "that a total sentence which is appropriate to the total criminality can be achieved by concurrent sentences".

Issues on the Appeal 5The Crown has appealed against the adequacy of the sentences imposed alleging error in the sentencing process having regard to the following matters: (1) The different criminality represented by the various offences and the increasing seriousness of those offences; (2) The maximum penalties provided for each of those offences as referred to in Muldrock v The Queen [2011] HCA 39; 244 CLR 120; (3) The New South Wales and Commonwealth legislatures had, within the period of offending, increased the penalties applicable to possessing and accessing child pornography. In the case of New South Wales, on 17 September 2010, the maximum penalty had been increased from 5 years to 10 years. In the case of the Commonwealth offence, the legislature, on 15 April 2010, had increased the maximum penalty from 10 years to 15 years; (4) The assessment of the objective seriousness of each of the offences; (5) The need to ensure appropriate punishment for each of the several offences; and (6) The absence of any accumulation of the sentences imposed for the various offences.

Principles governing a Crown appeal 6In Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 the plurality (French CJ, Crennan and Kiefel JJ) observed, at [1], that the primary purpose of Crown appeals against sentence under the Criminal Appeal Act 1912 (NSW), s 5D was "to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons". Their Honours, at [24], observed that the High Court had always considered Crown appeals under s 5D as exceptional and it was this aspect, reflecting the primary purpose of such appeals, which informed the exercise of the court's "residual discretion". As their Honours explained, that "residual discretion" was a discretion to dismiss a Crown appeal, notwithstanding that the sentence appealed against is shown to be erroneous. 7The Court pointed to the distinction between Crown appeals against sentence and appeals by a convicted person, observing that the latter were concerned with the correction of judicial error in particular cases. By contrast, on a Crown appeal under s 5D, the Court of Criminal Appeal retains a discretion to decline to interfere with a sentence, even though it is erroneously lenient. See also R v Wall [2002] NSWCCA 42; 71 NSWLR 692 at [70]; R v Mereb; R v Younan [2014] NSWCCA 149 at [31]-[32]. 8The principles governing a Crown appeal were summarised recently in R v Gommeson [2014] NSWCCA 159 at [84]-[86]. Johnson J, with whom Harrison and Garling JJ agreed, expressed the relevant principles as follows: "84 By asserting manifest inadequacy, the Crown alleges that the result embodied in the sentencing Judge's orders was unreasonable or plainly unjust. To make good this ground, the Court must be satisfied that error occurred in the sentencing Judge's approach to accumulation, or in the outcome itself, so that this Court should conclude that the total effective sentence imposed at first instance was manifestly too short: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at 325 [6]. 85 In order to uphold this ground, this Court must conclude that there must have been some misapplication of principle, even though where and how that occurred is not apparent from the remarks on sentence: Hili v The Queen at 539 [59]. 86 A claim of manifest inadequacy of sentence requires consideration of all of the matters that are relevant to the fixing of sentence: Hili v The Queen at 539 [60]."

Factual circumstances of the offending conduct 9The sentencing hearing proceeded before her Honour on the basis of a statement of facts which, save for one matter, was not disputed by the respondent. The one matter in dispute related to the number of images found on the electronic devices seized by the Australian Federal Police, and the number of victims. I will return to that below. Before referring to the facts, it is appropriate to refer to the classification of child abuse material which is relevant to the seriousness of the offending conduct. 10Child pornography material is categorised by reference to two scales, one being the Australian National Victim Image Library (ANVIL) and the other being the Child Exploitation Tracking System (CETS). Both scales categorise material according to the following categories: category one: sexually suggestive posing with no sexual activity; category two: non-penetrative sexual activity between children, or solo masturbation by a child; category three: non-penetrative sexual activity between adult(s) and child(ren); category four: penetrative sexual activity between adult(s) and child(ren); category five: sadism, humiliation or bestiality; and category six: animated or virtual depictions of children engaged in activity covered by categories one to five. 11On 9 August 2012, the Australian Federal Police executed a search warrant at the home of the respondent. At the time of the execution of the warrant, the respondent was inside his home and was found to be running software programs designed to "shred" and destroy material on his external hard drive, which also had the capacity to encrypt some files. When asked by the Police what material he had been wiping from his computers, he replied, "You know what". In his evidence on the sentencing hearing, the respondent confirmed that the material being wiped was child pornography. 12The Police seized four computer storage devices. One device was a Dell Tower desktop computer; another was a 500 gigabyte external hard drive; the third was an external hard drive; and the fourth was a 250 gigabyte hard disk drive. The images on these devices represented the images possessed by the respondent as alleged in count 1. The number of images stored was 126,938. Of those, nearly 76,000, or approximately 60 per cent, were classified as category one images. Over 18,000 images were found to fall within category three and over 18,000 images were within category four. Category three and four images thus represented some 30 per cent of the images. 13In relation to count 1, the Crown had advanced a case in the statement of facts handed to the sentencing judge, that there were approximately 50,000 child victims, both girls and boys, ranging in age from approximately newborn to 15 years of age. However, the respondent, in his evidence on the sentencing hearing, stated that many of the images were duplicates. This was accepted by the trial judge, who concluded that it was impossible for her to estimate the number of original images and how many victims there were. Her Honour proceeded on the basis however that there was a significant number of victims. This was not disputed by the respondent's counsel at the sentencing hearing. In the argument on the appeal, the Crown informed the court that once allowance was made for the duplication of images, it had proved the existence of about 13,000 images. This was not refuted or argued against by the respondent in his submissions on the appeal. 14Count 2 involved using a carriage service to access child pornography over a four year period from the end of December 2005 to the end of December 2009. Count 3 was in respect of conduct using a carriage service to access child pornography between 9 May 2012 and 9 August 2012. The Crown accepted before the sentencing judge that, but for the amendment of the legislation increasing the penalty from a maximum of 10 years imprisonment to 15 years imprisonment: see Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 (Cth), only one charge would have been laid under the Criminal Code, s 474.19(1)(a)(i). 15Count 4 related to conduct whereby the respondent produced child abuse material involving three videos of a male child being filmed in a bedroom in the respondent's residence. The child, who was the son of a friend of the respondent, was not aware he was being recorded. 16Count 5 involved the respondent's use of a carriage service to make child pornography material available to other people. The respondent shared 47,773 prohibited files over a period of six months between February and August 2012. The ratio between category one files, comprising 61 per cent and category three or over, comprising 30 per cent, including 14 per cent for category four, was broadly the same ratio as for the possession offence. 17As the respondent was charged with offences against both New South Wales law (counts 1 and 4) and offences against Commonwealth law (counts 2, 3 and 5), her Honour was required to sentence in accordance with the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) in respect of the New South Wales offences and, in accordance with the Crimes Act 1914 (Cth), s 16A in respect of the Commonwealth offences.

The respondent's subjective circumstances 18The respondent pleaded guilty in the Local Court. He was 39 years old when he was sentenced. He had completed Year 12 at High School and had attained an Associate Diploma of Accounting. He had a good employment history and had no prior criminal history. He had been sexually abused when he was 11 years old and had never been in a long-term sexual relationship, although he had had sexual encounters with both adult men and women. He lived alone and, according to the pre-sentence consultation, had felt isolated and alone for the past 10 to 12 years. 19The respondent was attending counselling which had given him insight into his offending. Her Honour accepted the evidence of Ms Nasr, clinical and forensic psychologist, as to the respondent's risk of re-offending in preference to the assessment made in the pre-sentence consultation. Ms Nasr, who took into account both the static and dynamic factors in the assessment, was of the opinion that the respondent's risk of re-offending was low to moderate. The respondent had expressed shame for the commission of the offences.

Principles relevant to concurrent offending 20The Crown submitted that the sentencing judge erred in the respects set out above at [5]. The various challenges made by the Crown to the sentencing process are not freestanding errors. Rather, it is necessary to consider the interaction and combination of the matters that it asserts led to the imposition of individual sentences or a total effective sentence that was manifestly inadequate together with the sentencing principles upon which the Crown relies to establish error in the individual sentences imposed and in the overall sentencing outcome. 21The Crown contended that the trial judge erred in determining that a total sentence that was appropriate to the total criminality involved in the offending could be achieved by concurrent sentences. The Crown submitted that the following factors made this approach inappropriate: the offending occurred over a period of about seven years; the offending increased in its severity over that period, commencing with accessing and possessing images, progressing to the respondent creating his own child pornography and, finally, the sharing of images with other offenders, including the videos which he had created himself. 22In Pearce v R [1998] HCA 57; 194 CLR 610, the majority (McHugh, Hayne and Callinan JJ), observed, at 623, that it would be wrong to punish an offender twice for the commission of elements of more than one offence that were common. Their Honours, stated, at 624, that a sentencing judge: "... must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well ... as questions of totality." 23Their Honours pointed out that when an appellate court determined whether the sentences imposed revealed appealable error, it was the individual sentences that fell for consideration, not just their overall effect. 24In Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41, Howie J (Adams and Price JJ agreeing) summarised the relevant principles governing the proper approach to sentencing where multiple offences were involved: "27 ... there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both. 28 This issue was most recently discussed in R v MMK (2006) 164 A Crim R 481 where the Court stated: [11] One of the limiting principles that constrains a sentencing court in seeking to promote the purposes of punishment is the principle of proportionality. Another is the, not-unrelated, principle of totality ... It is the application of the totality principle that will generally determine the extent to which a particular sentence is to be served concurrently or cumulatively with an existing sentence in accordance with statements of the High Court as to the operation of the principle in Mill v R (1988) 166 CLR 59; Pearce v R (1998) 194 CLR 610 and Johnson v R (2004) 78 ALJR 616. [12] In R v Holder (1983) 3 NSWLR 245, Street CJ described the principle as follows: (at 260) ... The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing Judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing Judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. ... [13] In some cases the fact that a sentence for a particular offence is to be served completely concurrently with another sentence for a different offence will result in a sentence that is erroneously inadequate because it does not reflect the totality of the criminality for which the offender was to be punished for the two acts of offending: see for example R v Brown [1999] NSWCCA 323. This may be so even if the two offences arise from the same precise criminal act, such as the dangerous driving of a motor vehicle on the one occasion: R v Janceski (No 2) [2005] NSWCCA 288. The same principle has been applied to sexual assault offences arising from a single incident of sexual assault: R v Gorman (2002) 137 A Crim R 326. Although, it has been held that a determination of the extent, if any, that a sentence is to be served cumulatively with another sentence is an exercise of discretion on which minds might differ, R v Hammoud (2000) 118 A Crim R 66, that discretion is generally circumscribed by a proper application of the principle of totality. That was a case where it was held to be appropriate to impose a sentence completely concurrent with sentences then being served by the offender even though the offence, for which sentence was imposed, was a completely separate and discrete act of serious criminality." 25The principal basis for her Honour's decision that the sentences be served concurrently was her assessment, at 14 of the remarks on sentence, that there was an overlap in the material which constituted the subject of each count. Her Honour considered that counts 2, 3 and 5 concerned subsets of the material which was the subject of count 1 and that was a matter to be considered in assessing the overall criminality. 26The Crown contended that although the decision to impose concurrent sentences was one that involved an exercise of discretion by the sentencing judge, her Honour in this case erred in imposing wholly concurrent sentences. The Crown did not dispute that there was some overlap in the offences, but submitted that the sentencing judge, at 14 of the remarks on sentence, had overstated or given undue weight to the extent of the overlap. The Crown submitted that the only overlap was the fact that the internet had been used to access and then download images which subsequently became the images possessed by the respondent and then later shared by him. The Crown argued that the degree of overlap was a minor consideration and ought not to have impacted significantly on the question of totality. The Crown contended that this was especially so in respect of count 5. 27The respondent submitted that the Crown's acknowledgement that the sentence for count 1 could appropriately comprehend and reflect the offences in counts 2 and 3 was a recognition that there was a significant overlap in respect of those offences. The respondent contended that there was also a significant overlap in respect of counts 4 and 5. In respect of count 4, producing child abuse material, there was an overlap with count 1, as the material was located on the respondent's computer storage devices. In respect of count 5, the material referred to in that count was also located on the computer storage devices and had been obtained largely through the internet, so that there was overlap between count 5 and counts 1, 2 and 3. 28There was discussion during the course of the hearing of the appeal, in determining whether the sentencing judge had erred in making the sentences concurrent, as to whether the proper approach was to consider the penalty imposed in relation to count 1 and determine whether that penalty could possibly accommodate or take account of the matters identified by counts 4 and 5, or whether it was necessary to determine whether the sentence imposed for count 5 comprehended the criminality of all of the offences. 29It will be recalled the longest sentence imposed was that for count 5. Accordingly, in accordance with the principles stated in Cahyadi, I am of the opinion that the latter approach is correct. That being so, it is necessary, in accordance with the principles in Pearce, to first determine whether the sentence imposed for each individual offence was appropriate. This will involve amongst other matters, an assessment of the objective seriousness of the offending conduct. There is now a line of consistent authority as to the factors that are relevant to that assessment.

Were the individual sentences manifestly inadequate?

Relevant legal principles 30In R v Gent [2005] NSWCCA 370; 162 A Crim R 29, Johnson J, with whom McClellan CJ at CL and Adams J agreed, observed that a range of factors were relevant in assessing the objective seriousness of an offence of possessing child pornography, including the nature and content of the pornographic material; the age of the children; the gravity of the sexual activity portrayed; the number of images possessed by the offender; whether the possession was for the purposes of sale or further distribution; and whether the offender would profit from the offence. These factors have been consistently considered by the court as relevant to the determination of the question of the objective seriousness of the offence: see, for example, Mouscas v R [2008] NSWCCA 181. 31Mouscas involved an appeal against the sentence imposed for one count of possession of child pornography contrary to s 91H(3) of the Crimes Act. The offence related to 41,923 graphic files and 251 video files classified as child pornography stored on a computer hard drive and a spindle of compact disks (CDs). The sentencing judge viewed a sample of the seized images, and commented that the images fell within the most serious category of material that could be described as child pornography. He also noted that "many hundreds, if not thousands, of victims are involved in the production of these photographs". His Honour regarded the offence as falling in the upper-end of the range of seriousness. After allowing for a discount of 20 per cent for the plea, the sentencing judge sentenced the applicant to a term of imprisonment consisting of a non-parole period of 1 year 6 months and a balance of term of 1 year and 3 months. 32The Court of Criminal Appeal affirmed the sentence. Price J, with whom Allsop P and James J agreed, rejected the applicant's contention that the offending did not fall at the upper-end of objective seriousness because he was not motivated by profit and did not intend to distribute the images. His Honour considered, at [19], that the characterisation of the offence as within the upper-end of objective seriousness was open to the sentencing judge on account of the nature and content of the images, the large number of victims, and the fact that even private use of child pornography provides a market for those who produce and distribute this material. 33Price J also rejected a submission that the sentencing Judge had given insufficient weight to the applicant's prior good character. His Honour, referring to Gent, considered that it was legitimate for a court to give less weight to prior good character as a mitigating factor for offences of possession of child pornography, because of the importance of general deterrence and the frequency with which the crime is committed by persons of prior good character. 34In Minehan v R [2010] NSWCCA 140; 201 A Crim R 243, R A Hulme J, with whom Macfarlan JA and Johnson J agreed, reviewed the following case law: Gent; R v Oliver [2003] 1 Cr App R 28; Saddler v The Queen [2009] NSWCCA 83; 194 A Crim R 452; R v Jarrold [2010] NSWCCA 69; Hutchins v Western Australia [2006] WASCA 258; R v Mara [2009] QCA 208; 196 A Crim R 506; Mouscas. His Honour summarised, at [94], the matters that have been found to be relevant to the "assessment of the objective seriousness of offences involving the possession or dissemination/transmission of child pornography", as follows: "1. Whether actual children were used in the creation of the material. 2. The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed. 3. The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material. 4. The number of images or items of material - in a case of possession, the significance lying more in the number of different children depicted. 5. 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 The Queen v De Simoni (1981) 147 CLR 383. 6. In a case of dissemination/transmission, the number of persons to whom the material was disseminated/ transmitted. 7. 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. 8. The proximity of the offender's activities to those responsible for bringing the material into existence. 9. The degree of planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating or transmitting the material. 10. Whether the offender acted alone or in a collaborative network of like-minded persons. 11. Any risk of the material being seen or acquired by vulnerable persons, particularly children. 12. Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted. 13. Any other matter in s 21A(2) or (3) Crimes (Sentencing Procedure) Act (for State offences) or s 16A Crimes Act 1914 (for Commonwealth offences) bearing upon the objective seriousness of the offence." 35His Honour added, at [95]: "This list of factors is, of course, not closed. Individual cases may always produce further matters relevant to the assessment of their objective seriousness." 36His Honour observed that the importance of general deterrence and denunciation had been recognised in other Australian jurisdictions: see [101] and cases cited therein. 37In Director of Public Prosecutions (Cth) v D'Alessandro [2010] VSCA 60; 26 VR 477, at [21], the Victorian Court of Appeal pointed to the following matters as being relevant: "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: (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." 38These principles were largely replicated in DPP v Smith [2010] VSCA 215. The factors particularly referred to in Smith were general deterrence, the limited weight to be given to an offender's prior good character and the factors (a) to (d) above in D'Alessandro, that bear upon the objective seriousness of the offence. The Court in Smith also observed, at [23], that a sentence of immediate imprisonment would ordinarily be warranted, but there were cases where a sentence which does not involve a period of actual custody was not precluded. 39These authorities were referred to with approval in R v Guest [2014] VSCA 29. In that case, the respondent was charged with two counts of using a carriage service to transmit pornography contrary to the Criminal Code, s 474.19(1), carrying a maximum penalty of 15 years, and one count of possession of child pornography contrary to the Crimes Act 1958 (Vic), s 70, carrying a maximum penalty of 5 years. The offending conduct had occurred over a long period commencing in the 1980s and involved possession of just under 10,000 images. The sentencing judge imposed a community correction order of 3 years 6 months together with a community service order of 300 hours. 40On appeal, the Victorian Court of Appeal, having referred to the considerations relevant to sentencing for child pornography offences considered that the sentence imposed was wholly outside the range reasonably open to the sentencing judge. The Court considered that a custodial sentence was required and that it was not an appropriate case for the exercise of its residual discretion. 41The Court re-sentenced the respondent to 18 months imprisonment in respect of both charges 1 and 2, although backdated the term of imprisonment to reflect that he had been the subject of a community correction order. The Court also ordered that at the expiry of his sentence, the respondent be released on a recognisance release order for a period of 2 years, in the sum of $1,000. In respect of charge 3, the respondent was sentenced to 2 months imprisonment, to be served concurrently with the sentences imposed on charges 1 and 2 not yet served. In the result, the total effective sentence on all charges that would have been imposed but for the respondent's guilty plea would have been 3 years 6 months, with a release upon a recognisance after serving 18 months. 42In R v James [2009] NSWCCA 62, this Court refused an appeal against sentence in respect of two offences, the first being the offence under the Criminal Code, s 474.19(1)(a)(i) of using a carriage service, namely, the internet, to access child pornography and the second being an offence of possessing child pornography contrary to the Crimes Act, s 91H(3). The offences carried maximum penalties of 10 years and 5 years respectively. The applicant was sentenced to a term of imprisonment of 18 months, with a recognisance release order after 1 year, upon the applicant entering upon a recognisance to be of good behaviour for 3 years. On the second count, the applicant was sentenced to 6 months imprisonment. The effect of the sentences was 21 months imprisonment, with the applicant to be released after 15 months on a 3 year recognisance. 43The number of images involved in that case was 3,235 child pornography images and 77 child pornography videos. The sentencing judge categorised the offences as "at least mid range". Blanch J, with whose judgment myself and Howie J agreed, referred to this Court's judgment in Gent, in particular noting the comments of Johnson J, that the case law has consistently pointed out that child pornography was a significant crime because it exploited young people and it was not a victimless crime because the collection of such material simply encouraged others to corrupt children in order to produce the material.

Submissions 44The Crown's position in respect of the individual charges was as follows. 45The Crown contended that the sentence imposed in relation to count 1 was unduly lenient. 46In respect of count 4, the Crown, whilst acknowledging that it had submitted to the sentencing judge that the offending in this count was at the lower end of the range, submitted that the sentence imposed failed to reflect the criminality involved, the degree of planning and preparation and the breach of trust in filming the young person who was a guest in his home, being the son of a friend of the respondent. 47Reliance was placed upon Gommeson where the Court stated, at [91], in respect of the respondent's photographing one of his own victims whom he had abused over a number of years, that that was a s 91H(2) offence of considerable gravity. The Crown also referred to the reference in Gommeson, at [91], that the penalty for this offence had increased from 5 years to 10 years, emphasising the legislature's concern for the need for denunciation and general deterrence in respect of this class of offence. 48In respect of count 5, the Crown submitted to the sentencing judge that the offending was at the high end of the range of objective seriousness. Her Honour did not accept that characterisation, finding that the conduct was "moderately serious". The Crown submitted to this Court that even if that was an appropriate characterisation, the sentence imposed did not reflect that finding, having regard to the maximum penalty for the offence and the factors relevant to the objective seriousness including the period of time over which the offence occurred, the network to which the respondent belonged and the number of images shared. 49There were other factors upon which the Crown relied in support of its contention that the sentences imposed were manifestly inadequate. 50The Crown submitted that her Honour erred in finding that the respondent's dealings with the images by sorting, storing, duplicating and the like was not a factor of aggravation. The Crown contended that her Honour erred in only treating this as a matter relating to the subjective features of the case. It submitted that this was contrary to what was stated in Oliver, which was a guideline judgment of the Court of Appeal (UK) and which was cited with approval by this Court in Minehan. In Oliver, the Court stated, at [20], that there were specific factors that were capable of aggravating the seriousness of a particular offence, including: "(iii) The way in which a collection of images is organised on a computer may indicate a more or less sophisticated approach on the part of the offender to trading, or a higher level of personal interest in the material. An offence will be less serious if images have been viewed but not stored." 51The Crown further submitted that the fact that the respondent used file shredding software at the time he was aware the police wanted to execute a search warrant was a further aggravating feature: see R v Talbot [2009] TASSC 107. In that case, the child pornography material had been encrypted, making investigation and detection more difficult for the police. The Court held, at [9], that that was an aggravating factor. 52The respondent pointed out that her Honour had given express consideration to the requirement of general deterrence as well as specific deterrence as required by the Commonwealth Crimes Act, s 16A(2)(j). The respondent submitted therefore that her Honour gave appropriate regard to both general and personal deterrence in her sentencing remarks and no error had been disclosed. 53The respondent, by reference to the statistics produced by the Judicial Commission, submitted that the sentences imposed in respect of count 1 and count 4 were not outside the existing pattern of sentencing. The respondent also relied upon the fact that although the sentence for count 4 was less than the median sentence imposed as revealed by the Judicial Commission statistics, the offending conduct only involved the production of two short video clips. 54The respondent also relied on the Judicial Commission statistics in respect of counts 2 and 3. He submitted that those statistics revealed that only 50 per cent of offenders received full-time custodial sentences. In respect of those who had received a custodial sentence, the median sentence was 2 years 6 months. The median non-parole period or fixed term was 12 months. The respondent's submission was therefore that the sentences imposed by the sentencing judge were not outside the pattern of sentencing for an offence under s 474.19. 55Finally, the respondent submitted that the sentence imposed in respect of count 5, namely, three years with a non-parole period of 18 months, was a substantial one and could not be said to be manifestly inadequate.

Consideration 56Count 1 involved the possession of a large number of images, of male and female children from newborn babies to 15 years of age. I have already referred to the uncertainty of the exact quantity, albeit that the Crown on appeal informed the Court that, without duplication, there were at least 13,000 images. This figure was not disputed by counsel for the respondent. The sentencing judge proceeded on the basis that there were a large number of victims involved. The possession occurred over a total period of 7 years. 57A significant proportion of the images, approximately 30 per cent, were in categories 3 and 4 of the scales used to categorise child pornography: see [10] above. About 60 per cent were in category 1. There was a smaller proportion in category 2 and a smaller proportion again in the significantly more serious category 5 and in category 6. The maximum penalty for the offence prescribed by the legislature is 10 years. As the Court stated in Muldrock, at [27], this is a legislative guidepost of which the Court must be mindful. 58I have referred to the sentencing for the offence of possession in other cases and to the statistics maintained by the Judicial Commission. Although of some assistance, the authorities repeatedly warn of the limits of the utility of statistics and the results of other cases always depend upon their particular facts. 59In the present case, in accordance with the principles discussed, I am not convinced that the sentence imposed by the primary judge was manifestly inadequate. I have reached this conclusion notwithstanding that I have accepted the Crown's submission that the storing of the material was an aggravating feature of this offence as was the attempt to shred it when the police arrived and that her Honour had failed to take that into account. In relation to the storage and use of the material, the evidence was that the respondent spent up to two hours a day accessing, storing, duplicating and using the images, indicating a significant degree of organisation. It may be inferred that this facilitated, at least to some degree, the transmission offence in count 5. 60The Crown did not make any particular submission in respect of the sentence imposed for counts 2 and 3. In those circumstances, I am of the opinion that the Court should proceed on the basis that the Crown either does not contend that the sentences for these offences was inadequate or that, at least, no inadequacy has been demonstrated. 61I have explained the Crown's position in relation to count 4. The breach of trust inherent in the offending conduct in respect of this count is particularly overt. However, the Crown has not established that the sentence imposed was manifestly inadequate. In Gommeson, the accused was sentenced to a fixed term of imprisonment of 12 months. The Court's resentence for the like s 91H(2) offence in that case related to accumulation, as opposed to the length of the sentence. Thus, whilst in its reference to Gommeson the Crown appropriately drew the Court's attention to relevant matters for its consideration, it did not otherwise demonstrate the sentence imposed here was manifestly inadequate. 62Count 5 requires separate consideration. It involved using a carriage service to make available child pornography. The legislature, by providing for a maximum penalty of 15 years, has signalled to the community that this is a very serious offence. The respondent's conduct, in making available to others a large number of files, 43,613 in total, over a 6 month period, involving the transmission of all categories of child sexual material in the proportions referred to in respect of count 1, was itself objectively serious. The sentence imposed by the sentencing judge for this offence was 3 years with a recognisance release order after serving 18 months. Having regard to the maximum penalty and the objective seriousness of the respondent's offending conduct, I am of the opinion that that sentence was manifestly inadequate. In coming to this conclusion, I have had regard to the respondent's strong subjective case and the need to pay careful attention to the principle of totality. Nonetheless, having regard to the objective seriousness of the respondent's conduct and the particular need for general deterrence when sentencing for this offence, appellate intervention is required. In my opinion, the sentence that ought to be imposed for count 5, taking into account a discount of 25 per cent for the respondent's early please of guilty, is 4 years 6 months. 63In determining that manifest inadequacy has not been demonstrated in respect of counts 1-4, but has been demonstrated in respect of count 5, I have had regard, in respect of each sentence, to the need for both specific and general deterrence. The latter in particular is, rightly, the subject of considerable emphasis in the case law. It is well recognised that the damage to the victims of child pornography is both very real and deeply serious. The extent of the damage to the unknown victims is inestimable. In addition, as her Honour observed at 10 of her remarks on sentence, offences of the kind committed by the respondent create a market for such material which involves and is dependent upon the exploitation of children. 64I have also taken into account the subjective features of the respondent to which her Honour referred, to the extent that they are mitigating factors. The fact the respondent was attending counselling, was gaining insight to his offending and was assessed as having a low to moderate risk of re-offending are particularly relevant. In this regard, her Honour considered that these were positive factors for his rehabilitation. It would appear from her Honour's remarks that the respondent had also shown remorse for his offending.

Did the primary judge err in ordering that all sentences be served concurrently? 65In addition to the question whether the individual sentences were manifestly inadequate, which has been made out in respect of count 5 only, it is still necessary to determine whether her Honour erred in ordering that all the sentences be served concurrently. 66Apart from the question of leniency, the Crown conceded that the sentence imposed for count 1 for the offence of possession could appropriately comprehend and reflect the offences in counts 2 and 3. The Crown contended, however, that this was not the case in respect of counts 4 and 5 and that her Honour's reliance upon the stated overlap between the offences of accessing, possessing and sharing as a reason for ordering the sentences to be served concurrently, represented an error. 67The respondent submitted that her Honour's approach to the sentencing process was in accordance with the principles in Pearce. Her Honour had imposed individual sentences appropriate to the individual offences and had exercised her discretion against accumulation, as she was entitled to do given the degree of overlap in the offences. 68In my opinion, her Honour erred in failing to partially accumulate the sentences imposed. The conduct in counts 4 and 5 involved further acts or activity not covered by counts 1, 2 and 3, and cannot be described as merely an aspect of the criminality involved in counts 1, 2 and 3. Counts 4 and 5 were committed independently of those other offences, and the conduct involved was of a significantly different nature. Further, the conduct in count 4 was different from the conduct in count 5. The conduct in count 4 involved a considerable breach of trust and disregard of the harm inflicted on a victim who was the child of the respondent's friend. The consequence of her Honour failing to partially accumulate the sentences was that the total sentence imposed did not appropriately reflect the totality of the offending conduct. 69It is necessary, however, as the Court is considering a Crown appeal, to determine whether the appeal should nonetheless be dismissed, in the exercise of the Court's residual discretion. This involves the Court ascertaining whether the appeal is exceptional, involving "the need to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons": see Green. It is not merely a case of finding that the sentence imposed was erroneous. 70In my opinion, the Court ought not exercise its residual discretion by dismissing the Crown appeal. A significant, if not the essential, feature of her Honour's reasoning in not partially accumulating the sentences was her perception that there was a degree of overlap in the charges. The overlap, according to her Honour, related to accessing and, later, making available to others the material that was the subject of the possession charge. Her Honour considered that the accessing and transmission charges were "subsets of material the subject of count 1": see remarks on sentence 9. 71As I have explained, the categorisation of the conduct the subject of count 5 as a subset of the possession offence in count 1 was a significant misunderstanding of what was involved in the offending. To so characterise such conduct would effectively mean that once material was downloaded on a computer, all other criminality relating to the use of the material was of no or minimal consequence. That is simply not correct. I consider that this error is of such a nature that it is within the exceptional category of case that falls for correction in a Crown appeal. 72There was further error in her Honour's failure to recognise two aggravating features of the offence, namely, that the respondent had sorted, stored and duplicated the material and that he had attempted to destroy the material when he became aware the police wanted to execute a search warrant. Correction of this error serves to reiterate that these are factors to which regard must be had, if made out on the evidence, in assessing the objective seriousness of an offence. It was also an error of principle to treat the first of these errors as pertaining only to the subjective features of the case. This requires correction so that trial judges are properly guided in the sentencing process in respect of such offences.

Proposed re-sentencing 73The shortest sentence imposed by her Honour was 9 months for count 4. Having regard to my view that there was error in the failure to accumulate the sentences, the sentence in respect of that count should commence first. Otherwise, the sentence for count 4 would be totally subsumed within the sentences for counts 1, 2 and 3. There should be a partial accumulation on that sentence for the sentence imposed in respect of counts 1, 2 and 3. In my opinion, an appropriate accumulation would be 6 months. The new sentence I propose with respect to count 5 should be accumulated by a further 6 months. 74Accordingly, I propose the following orders:

Appeal allowed;
Quash the sentences imposed by Sweeney DCJ and in their place impose the following periods of imprisonment: (a) In respect of count 4: a fixed term of imprisonment for 9 months, commencing on 22 November 2013; (b) In respect of count 1: a fixed term of imprisonment for 2 years, commencing on 22 May 2014; (c) In respect of count 2: a term of imprisonment of 2 years, commencing on 22 May 2014; (d) In respect of count 3: a term of imprisonment of 2 years, commencing on 22 May 2014; (e) In respect of count 5: a term of imprisonment of 4 years 6 months, commencing on 22 November 2014; (f) In respect of counts 2, 3 and 5, being the Commonwealth offences: a non-parole period of 3 years commencing on 22 May 2014. 75R A HULME J: I agree with Beazley P. 76GARLING J: I agree with the orders, and the sentence proposed by the President. I also agree with the reasons expressed by her Honour.

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: 01 December 2014

Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010(Cth)

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