R v Porte

A 45; 242 CLR 520 Hill v State of Western Australia [2009] WASCA 4 House v The King [1936] HCA 40; 55 CLR 499 James v R [2009] NSWCCA 62 James v R [2015] NSWCCA 97 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Martin v R [2014] NSWCCA 124 Minehan v R [2010] NSWCCA 140; 201 A Crim R 243 Mouscas v R [2008] NSWCCA 181 Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Booth [2009] NSWCCA 89 R v Coffey [2003] VSCA 155; 6 VR 543 R v Cook; Ex parte Director of Public Prosecutions (Cth) [2004] QCA 469 R v Dodd (1991) 57 A Crim R 349 R v Fulop [2009] VSCA 296; 236 FLR 376 R v Gent [2005] NSWCCA 370; 162 A Crim R 29 R v Gordon [2009] QCA 209; (2011) 1 Qd R 429 R v Hinchliffe [2013] NSWCCA 327 R v Jones [1999] WASCA 24; 108 A Crim R 50 R v Jongsma [2004] VSCA 218; 150 A Crim R 386 R v Linardon [2014] NSWCCA 247 R v Martin [2014] NSWCCA 283 R v McGourty [2002] NSWCCA 335 R v Oliver [2003] 1 Cr App R 28 R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225; 82 NSWLR 60 R v West [2014] NSWCCA 250 Saddler v R [2009] NSWCCA 83; 194 A Crim R 452 Smit v State of Western Australia [2011] WASCA 124 Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 Texts Cited: Mizzi, Gotsis and Poletti, "Sentencing Offenders Convicted of Child Pornography and Child Abuse Material Offences", Judicial Commission of New South Wales, Monograph 34, September 2010

Warner, "Sentencing for Child Pornography" (2010) 84 ALJ 384 Category: Principal judgment Parties: Regina (Appellant) David Fernando Porte (Respondent) Representation: Counsel: Mr PR McGuire (Appellant) Mr WJ Hunt (Respondent)

Solicitors: Commonwealth Director of Public Prosecutions (Appellant) Joe Weller & Associates (Respondent) File Number(s): 2013/75421 Publication restriction: --- Decision under appeal Court or tribunal: Sydney District Court Citation: --- Date of Decision: 14 November 2014 Before: Judge Maiden SC File Number(s): 2013/75421

Judgment

1. LEEMING JA: I have read the judgment of Johnson J in draft. I agree with his Honour's reasons. I agree that all grounds of appeal have been made out, that the discretion to resentence should be exercised, and that a fulltime custodial sentence is appropriate for the Commonwealth and State child pornography offences. I agree with the sentences proposed by his Honour.
2. JOHNSON J: These are Crown appeals with respect to sentences imposed upon the Respondent, David Ferdinand Porte, at the Sydney District Court on 14 November 2014.

The Offences and Sentences

1. The Respondent had pleaded guilty on 11 March 2014 to the following three offences: 1. between 5 and 12 March 2013, he used a carriage service to access child pornography material contrary to s.474.19(1)(a)(i) Criminal Code (Cth), an offence punishable by imprisonment for 15 years; 2. on 12 March 2013, he possessed child abuse material contrary to s.91H(2) Crimes Act 1900 (NSW), an offence punishable by imprisonment for 10 years, and 3. on 12 March 2013, he possessed a prohibited weapon without a permit contrary to s.7(1) Weapons Prohibition Act 1988 (NSW), an offence punishable by imprisonment for 14 years with a standard non-parole period of three years.
2. On 14 November 2014, his Honour Judge Maiden SC sentenced the Respondent to concurrent terms of 18 months' imprisonment on each count and directed that the terms of imprisonment be served by way of an Intensive Correction Order ("ICO") commencing on 21 November 2014.

The Crown Appeals

1. On 12 December 2014, the Commonwealth Director of Public Prosecutions filed a Notice of Appeal under s.5D Criminal Appeal Act 1912 (NSW) with respect to the sentence imposed for the Commonwealth offence. Thereafter, the Deputy Director of Public Prosecutions (NSW) filed a s.5D appeal with respect to sentences passed for the New South Wales offences.
2. On 24 April 2015, Further Amended Notices of Appeal were filed on behalf of each of the Commonwealth and State Directors. The Commonwealth Director relied upon the following grounds of appeal: 1. Ground 1 - his Honour failed to take into account the matters set out in Part 1B of the Crimes Act 1914 (Cth), in particular s.16A; 2. Ground 2 - his Honour erred in ordering full concurrency with the remaining sentences; 3. Ground 3 - his Honour erred in ordering an ICO assessment before evidence and submissions were complete; 4. Ground 4 - his Honour failed to apply the provisions of s.7(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) when ordering that the sentence be served by way of an ICO; and 5. Ground 5 - the sentence was manifestly inadequate. Particulars

• his Honour erred in ordering that the sentence be served by way of ICO;
• his Honour failed to have due regard to totality in sentencing;
• his Honour failed to have due regard to general and specific deterrence;
• his Honour erred in giving undue weight to the offender's physical and mental health; and
• his Honour erred in ordering the sentence be served concurrently with the remaining sentences.

1. The New South Wales Director relied upon Grounds 2 to 5 in similar terms to the Commonwealth Director. However, Ground 1 in the New South Wales appeal asserted that his Honour failed to take into account the matters set out in s.21A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Facts of Offences

1. An Agreed Statement of Facts was tendered in the District Court which revealed the following.
2. The Australian Federal Police ("AFP") were investigating child pornography material being shared or downloaded over the Internet, using "peer-to-peer" file sharing technology, which is an Internet network that allows a group of computer users with the same networking program to connect with each other and directly access files from one another's hard drives.
3. As part of that investigation, the AFP identified that, between 28 October 2011 and 20 January 2013, an Internet Protocol address subscribed in the name of the Respondent was being used to download child pornography videos and images. Execution of Search Warrant on 12 March 2013
4. On 12 March 2013, members of the AFP executed a search warrant at the Respondent's premises in Kenthurst. The Respondent (then 47 years old) was present at the time of execution of the search warrant.
5. Upon execution of the warrant, the AFP located and seized a number of computer hardware devices and numerous hard drive storage devices. The seized items included a laptop computer, a desktop computer, 14 external hard disk drives and a compact disk. Also located was a packaged canister of "Mace" which was subsequently seized (giving rise to the charge under s.7(1) Weapons Prohibition Act 1988 (NSW)).
6. Whilst executing the warrant, AFP Agents noticed that a laptop computer located in the Respondent's bedroom was operating and a "peer-to-peer" file sharing program was running and in the process of downloading approximately 916 files. The file names of many of the files being downloaded were indicative of child pornography material. One of the video files, which had fully downloaded, was viewed and identified by AFP Agents as child pornography material (see [28] below).
7. In addition to the video referred to in the preceding paragraph, the Respondent was shown another video which had been located on one of the external hard disk drives found near the laptop (see [29] below).
8. When questioned in recorded conversations conducted during the execution of the search warrant, the Respondent stated the following: 1. he had stored child pornography on his laptop computer and on a number of the external hard disk drives; 2. he had downloaded child pornography to his laptop computer using a "peer-to-peer" file sharing program; 3. he was interested in girls aged between 12 and 15 years of age who looked like women, but not engaged in sexual acts; 4. he had used search terms related to girls to locate and download the images, and he downloaded files in bulk; 5. he was not sure of the legal definition of child pornography material, but understood it was illegal to download and to possess it; 6. he had started to download the files some time ago, and when his laptop computer became full, he would transfer them to one of the external hard disk drives; 7. he had previously watched the video referred to at [14] (and [29]), but said that he had not watched it all the way through; 8. he had been caught by his wife deleting some child pornography material several weeks before, and as a result intended to delete all his child pornography material.

The Respondent's Subjective Circumstances

1. The Respondent was 47 years old at the time of the offences and 49 years old at the time of sentence.
2. His criminal history involved an offence in 1986 of malicious injury for which he was fined $50.00.
3. The Respondent was born in Chile and, at about the age of five, he relocated with his family to the United States of America and about a year later, migrated to Australia. He left school at the age of 15 and then undertook further business studies. He was self-employed between 2001 and 2011 in the import and marketing of industrial hardware. However, this business collapsed. As a result of a work-related injury in 2008, the Respondent was unemployed for a number of years. The Respondent had secured part-time employment in a management capacity for a metal fabrication company between the time of his arrest and sentence.
4. The Respondent and his wife had been in a relationship for about 30 years and were married for some 21 years. They resided at their home at Kenthurst since 2003. There were no children of the relationship.
5. Before the sentencing court were a presentence report dated 30 May 2014 prepared by a Community Corrections Officer, a report of Dr Olav Nielssen, psychiatrist, dated 11 October 2014, a letter from the Respondent's wife and a number of reports concerning the Respondent's health.
6. The Respondent gave evidence at the sentencing hearing on 24 October 2014.
7. The presentence report recorded the Respondent's acknowledgement that his interest in the downloaded material related to girls in their mid-to-late adolescent years. He denied that he had intended to access offensive material involving younger girls, stating that such material was automatically included in bulk downloaded files. He told the Community Corrections Officer that he was deeply embarrassed and ashamed by his offending which he denied stemmed from seeking sexual gratification from viewing such material of younger girls. He stated that, in hindsight, he was aware that his actions contributed to the exploitation of young girls, something that he now regrets.
8. Dr Nielssen diagnosed the Respondent as suffering from depression and a hoarding disorder, and commented that he was not thought to have a disorder of abnormal sexual interest, such as heterosexual paedophilia.

The Course of Proceedings in the District Court

1. To assist an understanding of the grounds of appeal, it is appropriate to outline briefly the course of proceedings in the District Court.
2. The Respondent pleaded guilty to the present charges on 11 March 2014 at the Parramatta Local Court and was committed to the District Court for sentence.
3. He appeared before his Honour Judge Maiden SC at the Parramatta District Court on 18 August 2014. After the sentencing hearing had proceeded some way, it was adjourned part heard before his Honour to 24 October 2014.
4. The hearing resumed on 24 October 2014 at the Sydney District Court and the Respondent gave evidence. At the conclusion of the Respondent's evidence, his Honour raised with the legal representatives "with the State offences if I was to find that imprisonment was under two years should I consider an ICO?" (AB38.24). Discussion ensued, leading to his Honour requesting an ICO assessment with the proceedings being adjourned until 14 November 2014. His Honour did not give reasons for taking that course.
5. It should be noted that at all times, the Crown had submitted both in writing and orally that a full-time sentence of imprisonment was the only appropriate sentence in this case.
6. In the course of the sentencing hearing, the Crown tendered material including the Statement of Facts (to which reference has been made), a folder containing sample images possessed by the Respondent (CETS scale images in Categories 1 to 6) together with a detailed written submission on sentence.
7. When the hearing resumed on 14 November 2014, a copy of the ICO assessment report was made available. The report stated that the Respondent had been assessed as suitable for an ICO. After a brief discussion with counsel, the sentencing Judge enquired of counsel (AB42-43): "HIS HONOUR: How long did I indicate last time that I'd say? HEATHCOTE [Defence Counsel]: You said not more than two years. GRODZICKI [Crown]: Your Honour, my understanding is that it was something less than two years but that your Honour hadn't fully determined whether it would be by ICO but that one was ordered in order to essentially save time I think in case that was going to be the -- HIS HONOUR: I'll make it for a period of 18 months to date from seven days from today. It's Parramatta or where would -- HEATHCOTE: Hornsby has been where he's been going. HIS HONOUR: Okay, seven days at Hornsby. In respect of the matter my short reasons are that the Court is satisfied that having read the material produced on behalf of Mr Porte-- GRODZICKI: Your Honour, I hate to interrupt but can I just raise one thing. On the last occasion the Crown made an application to adjourn to try and get some medical evidence. HIS HONOUR: Did you, I'm sorry? GRODZICKI: Yes, we did obtain some - it's only very basic material your Honour but I think I should tender it, from Justice Health, and I think my friend has a short report possibly also to hand up. HEATHCOTE: Just a little bit of an update so far as his medication regime is concerned, your Honour. I tender a report from Dr Hon dated 4 November 2014 and also a report from Dr Patrick Ao dated 12 November 2014. GRODZICKI: There's no objection to those your Honour. HEATHCOTE: I've seen the Crown document. GRODZICKI: Your Honour there's essentially just a copy of my request to the agencies and then a letter from Justice Corrective Services which doesn't say very much and then there's a letter from Justice Health. It essentially just says that they think they can manage the medical conditions that he has. It's not detailed in any way. So just for completeness your Honour I tender those." The last document mentioned was the report of Dr Suresh Badami referred to at [42] above. That report related to the Crown submission that the Respondent's health difficulties could be treated and managed in custody. It formed part of the ongoing Crown submission that the Respondent should be sentenced to a term of full-time imprisonment.

Some General Observations Concerning Sentencing Under Commonwealth and New South Wales Law for Child Pornography Offences

1. Before moving to consider the grounds of appeal, it is appropriate to make some general observations concerning sentencing for this class of offences.
2. There are few areas where the age of the Internet has impacted upon the criminal law more severely than in the field of child pornography offences.
3. A number of early cases which had commented upon this phenomenon were referred to in R v Gent [2005] NSWCCA 370; 162 A Crim R 29 at 36-40 [29]-[43], a decision now almost 10 years old.
4. As mentioned in R v Gent at 37 [32], amendments made in 2005 created several new offences in the Criminal Code (Cth), including s.474.19, an offence relevant to this appeal. The Second Reading Speech for the relevant 2004 Bill stated that the Bill "continues the Australian government's proactive approach to updating criminal laws in light of rapid technological change": R v Gent at 37 [32]. A Mixture of Commonwealth and State Offences
5. It is not uncommon to encounter the circumstances present in this case - a combination of a Commonwealth access offence under s.474.19 Criminal Code (Cth) and an offence under relevant State legislation with respect to possession of child abuse material. In R v Gordon [2009] QCA 209; (2011) 1 Qd R 429, Keane JA (as his Honour then was) (De Jersey CJ and Margaret Wilson J agreeing) said at 436-437 [37]: "The Queensland offence [of possession] did not involve use of the internet. It cannot be said that the use of the internet to procure the images adds little to the criminality involved in their possession. Such a view would fail to recognise that the vice attacked by the Commonwealth legislation is the use of the internet to access the market for child pornography and the consequent boost to that market of which internet access is such an important element."
6. The interrelationship between Commonwealth and State offences was addressed in R v Fulop [2009] VSCA 296; 236 FLR 376, where Buchanan JA (Nettle JA agreeing) said at 379 [11]-[13]: "11 The elements of the offences overlapped but they were not identical. While the appellant was able to obtain possession of the pornographic material through a carriage service, the service also enabled users to disseminate the material. The Commonwealth offence concentrates upon the internet because, as the Parliamentary Secretary to the Minister said in his Second Reading Speech: Law enforcement agencies estimate that around 85% of child pornography seized in Australia is distributed via the internet. By focusing on the internet, these new Federal offences target the very heart of the abhorrent child pornography industry. 12 On the other hand, the state offence is not concerned with the means by which the offender gains possession of pornographic material. The appellant could gain access to the material without possessing it. In this case, he took a further step by downloading the material and thereby obtained possession of it. The Commonwealth offence was concerned with the images found on the hard drive of the appellant's computer. The state offence was constituted by the CDs and DVDs made and retained by the appellant. In my opinion, the offences did not overlap to such an extent that it rendered inappropriate the degree of cumulation ordered by the sentencing judge." Increasing Maximum Penalties for Commonwealth and New South Wales Offences

Ground 1 in the Commonwealth and State Appeals - Failure to Take Into Account Matters Set Out in s.16A Crimes Act 1914 (Cth) and s.21A Crimes (Sentencing Procedure) Act 1999 (NSW)

1. In the context of this appeal, these grounds may be dealt with relatively shortly.
2. The crux of the Crown submission was that the remarks on sentence failed in fundamental respects to fulfil the function of sentencing remarks, and in particular to address sentencing factors under the relevant Commonwealth and State legislation.
3. Mr Hunt, counsel for the Respondent, emphasised that the remarks on sentence were delivered ex tempore immediately following the sentencing hearing. In oral submissions, Mr Hunt recognised, in a practical way, the difficulty in meeting a submission based upon the brevity of the sentencing remarks. His resistance to the Crown appeal was, in truth, to be found in other aspects of the case. Decision
4. In Gallant v R [2006] NSWCCA 339, Howie J (McClellan CJ at CL and Adams J agreeing) said at [69]: "The sentencing remarks were very brief, requiring only two double spaced pages of transcript. While that is not itself an indication of error, there is the risk that a Judge in the avoidance of prolixity will go too far the other way and fail adequately to refer to or discuss matters of significance in the determination of sentence: see R v Thomas [2006] NSWCCA 313."
5. These observations in Gallant v R have application to the present case.
6. This Court takes into account the ex tempore nature of remarks on sentence delivered immediately after a sentencing hearing: Currie v R [2013] NSWCCA 267 at [50]-[51]. However, there are minimum requirements which were not met in this case. The following observations of Adamson J (Hoeben CJ at CL and RA Hulme J agreeing) in R v West [2014] NSWCCA 250 at [28] are apposite: "In the present case, the remarks on sentence contain no assessment of the objective seriousness of the offending conduct. Nor is there any assessment of the offender's moral culpability. I do not discern in his Honour's remarks on sentence anything that might permit the conclusion that these matters were taken into account. It is not satisfactory that an appeal court is left to undertake an analysis of exchanges between the bench and counsel during submissions in an attempt to ascertain a judicial officer's reasons for determination: Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited [2006] NSWSC 343; 67 NSWLR 402 at [19]. The latitude that is afforded to remarks on sentence given ex tempore by busy judges does not, in my view, entitle this Court to infer that a matter as fundamental to the sentencing process as the assessment of objective seriousness was taken into account when it was not addressed in the remarks."

Ground 2 - Claim of Error in Ordering that the Sentences be made Wholly Concurrent

1. The Crown submits that the manner in which the sentencing Judge came to determine that identical 18-month sentences should be served concurrently, demonstrated that there had been a failure to comply with the relevant principles concerning accumulation and concurrency. The Crown submitted, as it had before the District Court, that the accessing and possession offences were different so that some measure of accumulation was appropriate as between those offences: James v R [2009] NSWCCA 62 at [16]. It was submitted, in particular, that there was a difference between accessing a small number of images and possessing some 34,000 images. The Crown submitted, as well, that there was a difference in relation to the systematic saving and the way in which and the time over which the images were accessed, using peer-to-peer technology, and saved to various hard drives (T7, 13 May 2015).
2. Mr Hunt submitted that the Commonwealth and State offences were inextricably linked and that the offences should be considered part of the same episode of criminality. In these circumstances, it was submitted that there was no error in directing that the sentences be served concurrently. In oral argument, Mr Hunt submitted that this is a case where, in terms of the totality principle, there was a proper basis on which sentences for the accessing and possession offences ought be concurrent (T11, 13 May 2015). Decision
3. Although the sentence Judge had received written submissions from the Crown which dealt with a wide range of issues, including accumulation and concurrency, the sentencing Judge did not advert to these topics in the remarks on sentence.
4. The clear inference (see [49]-[50] above) is that his Honour had determined to impose an intensive correction order for a period of 18 months and, only when reminded by counsel, did he fix an identical and entirely concurrent sentence of 18 months' imprisonment on each count.
5. This Court has been critical of the imposition of a "one size fits all" set of sentences in circumstances where there is a clear failure to comply with the principles in Pearce v The Queen [1998] HCA 57; 194 CLR 610 and to make an assessment concerning issues of concurrence, accumulation and totality: Corby v R [2010] NSWCCA 146 at [59]-[60].

Grounds 3 and 4 - Grounds Alleging Errors With Respect to the Ordering of an ICO

1. The Crown submitted that the sentencing Judge made a referral for ICO assessment on 24 October 2014 during the sentencing hearing, and at a time when the evidence and submissions had not been completed. It was submitted that making a referral for assessment before the evidence had been completed was in breach of s.69(2) Crimes (Sentencing Procedure) Act 1999 (NSW).
2. The Crown submitted further, in support of Ground 4, that the sentencing Judge failed to apply the provisions of s.7(1) Crimes (Sentencing Procedure) Act 1999 (NSW) when ordering that the sentences be served by way of an ICO. Decision
3. Section 69 Crimes (Sentencing Procedure) Act 1999 (NSW) provides as follows: "69 Referral of offender for assessment (1) Before imposing a sentence of imprisonment on an offender, the court may refer the offender for assessment as to the suitability of the offender for intensive correction in the community. (2) A court is not to refer an offender for such an assessment unless satisfied, having considered all the alternatives, that no sentence other than imprisonment is appropriate and that the sentence is likely to be for a period of no more than 2 years."
4. It is clear from the course of the sentencing proceedings that the sentencing Judge did not engage in the stepped process required when use of an ICO is under consideration: Zreika v R at 474-475 [56]-[59]. Rather, his Honour determined to proceed by way of an ICO, and then selected a period of imprisonment that fell below the two-year threshold to facilitate that outcome.
5. I am satisfied that Grounds 3 and 4 have been established.

Ground 5 - The Claim of Manifest Inadequacy

1. The real area of contest on this appeal falls under this ground. The findings already made reveal a series of clear errors. It remains necessary to consider this ground.
2. The Crown submits that a sentencing order involving the use of an ICO was manifestly inadequate in this case. The Crown submitted, as it did at first instance, that the only appropriate sentence for these offences was a period of imprisonment to be served by way of full-time custody.
3. Whilst acknowledging the leniency involved, Mr Hunt submitted that it was open to the sentencing Judge, in the circumstances of this case, to proceed by way of an ICO. Decision
4. In circumstances where the sentencing Judge did not engage in any real assessment of the objective seriousness of the Respondent's crimes, nor any process of instinctive synthesis where such a finding was taken into account with all other relevant features, it falls effectively to this Court to undertake that process to allow an assessment as to whether the sentences imposed were manifestly inadequate.
5. At the outset, and as noted in the context of Ground 2, it is clear that a sentence of 18 month's imprisonment for the Respondent's offence under s.7(1) Weapons Prohibition Act 1988 (NSW) is entirely excessive, given the objective circumstances of that offence, the Respondent's explanation for his possession of that item and his subjective factors relevant to sentence.
6. However, the focus of attention on sentence, for the purpose of this ground of appeal, is directed to the child pornography offences under Commonwealth and State law.
7. An assessment of the nature and number of the images possessed or accessed by the Respondent leads to a finding of substantial objective seriousness in this case. Consideration of the images in accordance with the CETS scale fortifies this conclusion (see [16] above).
8. In addition, the folder of sample images, falling within the various categories on the CETS scale, assists this Court by providing visual examples to be taken with the written description of the categories (see [76]-[77] above). This Court was informed that the folder provided to this Court was the same folder which had been handed to the sentencing Judge in the District Court (T17-18, 13 May 2015). This provides a sentencing court with something more than a formulaic classification, which may not communicate the true nature of the offending material. Young children are involved, with even the Category 1 images being significantly depraved in their content.

Should the Discretion to Resentence the Respondent be Exercised?

1. The Crown has established error. Accordingly, the first hurdle on a Crown appeal has been cleared. It remains incumbent on the Crown to demonstrate that the discretion to resentence the Respondent should be exercised: CMB v Attorney General for NSW [2015] HCA 9; 89 ALJR 407 at 415 [33].
2. Mr Hunt read the affidavit of the Respondent affirmed 11 May 2015, to be taken into account on the exercise of the residual discretion and resentencing.
3. The Crown read the affidavit of Stephen John Grodzicki affirmed 12 May 2015 to explain elements of delay between the filing of the Crown appeals and the hearing of the appeals in this Court.
4. The evidence before this Court indicates that the Respondent is taking steps to further his rehabilitation. The Respondent has been complying with the conditions of his ICO. He is required to attend Hornsby Community Corrections on Thursday of each week to perform activities, including the covering of text books and reading books for schools.
5. The Respondent's affidavit speaks, as well, of the substantial anxiety affecting himself and his wife since he learned of the Crown appeal.
6. The Respondent has secured employment, which presents good prospects for him in the long term. It is said that a sentence of full-time imprisonment will endanger the family home given his wife's limited income. The Respondent has been seeing a psychologist, who has been assisting him with respect to aspects of his personal life.
7. The Respondent's affidavit does not expand in any detail upon his health problems. It is clear from the affidavit that he has been able to work. There is evidence of the Respondent's concerns about the risk of being assaulted in custody. He has been taking blood-thinning medication which will need to continue for some time, if not indefinitely.
8. With respect to delay in the hearing of the Crown appeal, the affidavit of Mr Grodzicki indicates efforts being made by the Crown to obtain material for the purpose of the appeal. It was only on 14 April 2015 that the Crown received a copy of the sentencing Judge's remarks on sentence of 14 November 2014.
9. I do not consider that delay by the Crown in this case operates adversely to the Crown. The appeals were filed promptly and the Respondent was aware that the appeals were on foot. It was agreed in this Court that an email was sent by the Crown to the Respondent's legal representative on 14 November 2014 indicating that a Crown appeal was being considered. The Crown took reasonable steps to bring on the hearing of the appeals.

Resentencing the Respondent

1. At first instance, the Crown referred to a series of sentencing decisions to inform a range of sentences for this class of offending. Of course, caution must be exercised in any use of s.91H(2) sentencing cases for offences before 2008 or s.474.19 cases for offences before 2010, given the increase in the respective maximum penalties (see [57]-[58] above).
2. The cases referred to below included the following: Case Charges Volume of Material and Classification Sentence Mouscas v R [2008] NSWCCA 181 Possess child pornography - s.91H(3) Crimes Act 1900 (NSW) (one count) 41,923 image files and 251 video files Imprisonment for two years and six months with a non-parole period of 18 months (offender's appeal dismissed) Use carriage service to access child pornography material - s.474.19(1)(a)(i) Criminal Code (Cth) (one count) Images at upper end of objective seriousness James v R [2009] NSWCCA 62 Possess child pornography - s.91H(3) (one count) Over 130,000 images on compact disks and hard drives, videos and movie files Imprisonment for 18 months with recognisance release order after 12 months Use carriage service to access child pornography material under s.474.19(1)(a)(i) (one count) Most images at upper end of seriousness (Offender's appeal dismissed) Saddler v R [2009] NSWCCA 83 Possess child pornography material - s.91H(3) (three counts) (other offences on a Form 1) Over 36,500 images Imprisonment for six years with non-parole period of four years and six months (Offender's appeal allowed - resentenced to total effective sentence of four years' imprisonment with a non-parole period of two years and nine months) Use carriage service to access - s.474.19(1)(a)(i) (one count) County Court - Community Corrections Order for three years and six months DPP (Cth) v Guest [2014] VSCA 29 Use carriage service to transmit - s.474.19 About 10,000 pictures, videos and text files, of which about 8,000 fell within Category 1 of the CETS scale On Crown appeal - sentences manifestly inadequate - resentenced to imprisonment for 18 months with recognisance release order after six months Possession of child pornography material - s.70 Crimes Act 1958 (Vic)

1. In this Court, the Crown relied upon the following recent decisions of this Court: Case Charges Volume of Material and Classification Sentence Possession offence under s.91H(2) Possession charge related to 4,530 images and 40 videos and the access charge concerned 130 images and videos District Court - total effective sentence of imprisonment for three years and four months with a non-parole period of one year and 10 months R v Linardon [2014] NSWCCA 247 Transmission and accessing offences under s.474.19 Images and videos included material within the most serious category On appeal - Crown appeal allowed - total term of five years' imprisonment with a non-parole period of three years Aggravated transmission under s.474.24A Criminal Code (Cth) Possession - s.91H(2) (one count) R v Martin [2014] NSWCCA 283 Accessing - s.474.19, (two counts) Possession of about 13,000 images District Court - total effective sentence of three years' imprisonment with a non-parole period of 18 months Producing child abuse material - s.91H(2) (one count) Make material available count involved sharing over 47,000 prohibited files over six months On appeal - Crown appeal allowed - Offender resentenced to total effective sentence of five years and six months' imprisonment with an effective non-parole period of three years and six months Making available child pornography material - s.474.19 (one count)

1. Although care must be exercised in considering the circumstances and sentences imposed in other cases, these sentencing decisions serve to fortify a conclusion of manifest inadequacy in this case and inform issues relating to the resentencing of the Respondent. Further support for this conclusion may be found in another recent decision of this Court in Martin v R [2014] NSWCCA 124, a decision relating only to offences under s.91H(2) Crimes Act 1900 (NSW). These sentences operate as yardsticks, to be taken into account on sentence: Hili v The Queen at 537 [54].
2. For the purpose of resentencing the Respondent, I have regard to all the evidence before the District Court and before this Court, with respect to the objective gravity of these offences and the Respondent's subjective circumstances. I will not repeat the matters set out earlier in this judgment which bear upon these aspects of the case.
3. As in the District Court, a 25% discount will be applied for the Respondent's pleas of guilty to the State matters and for his facilitation of the course of justice on the Commonwealth charge. The sentences to be passed take into account these discounts. I am satisfied that sentences of imprisonment involving full-time custody are the only appropriate sentences to be imposed for the Commonwealth and State child pornography offences.
4. Issues of concurrency and accumulation were addressed with respect to Ground 2. Where sentences are being imposed for Commonwealth and State offences, it is necessary for the Court to comply with s.19(3) Crimes Act 1914 (Cth). I have concluded that there ought be some measure of accumulation with respect to the sentences to be imposed for those two offences (see [98]-[100] above). The offences overlap, but they are not identical. The Respondent gained access to the material through a carriage service. However, as the Crown submitted, he undertook systematic saving, utilising peer-to-peer technology to access and then save material to various hard drives. The different vices to which the offences are directed remain significant (see [55]-[56] above). The Respondent's criminality for the two offences requires some measure of accumulation, subject to application of the totality principle. A level of accumulation of three months is appropriate in this case: James v R at [16]; R v Fulop at 378-379 [10]-[12] (see [56] above).
5. As noted earlier, a sentence of 18 months' imprisonment is excessive with respect to the offence of possession of "Mace". The Respondent's account for possession of this substance was not challenged. He did not possess it for any criminal purpose. Having regard to the Respondent's subjective case, a non-custodial penalty should have been imposed at first instance. The appropriate course to adopt in this Court is to convict the Respondent, but impose no other penalty under s.10A Crimes (Sentencing Procedure) Act 1999 (NSW).

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