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[2023] QCA 150
General information, not legal advice.
Court of Appeal (Qld)
2023-07-28
McMurdo and Bond and Dalton JJA
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Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Schulz; Ex parte Director of Public Prosecutions (Cth) [2023] QCA 150
PARTIES: R / v / SCHULZ, Brendan Curt / (respondent) / EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS / (appellant)
FILE NO/S: CA No 332 of 2021 / SC No 10 of 2021 / SC No 13 of 2021 / SC No 14 of 2021
DIVISION: Court of Appeal
PROCEEDING: Sentence Appeal by Director of Public Prosecutions (Cth)
ORIGINATING COURT: Supreme Court at Mount Isa – Date of Sentence: 23 November 2021 (Henry J)
DELIVERED ON: 28 July 2023
DELIVERED AT: Brisbane
HEARING DATE: 19 October 2022
JUDGES: McMurdo and Bond and Dalton JJA
ORDERS: Count / Sentence / State indictment / Count 1 / 15 months’ imprisonment to commence on 23 November 2021 / Count 2 / 18 months’ imprisonment to commence on 23 November 2021 / Count 3 / 2 years’ imprisonment to commence on 23 November 2021 / Count 4 / 12 months’ imprisonment to commence on 23 November 2021 / The imprisonment for State counts 1 to 4 is to be served concurrently. / State summary charges / Charges 1 and 2 / Convicted and not further punished / Commonwealth indictment / Count 8 / 9 years’ imprisonment to commence on 24 November 2022 / Count 21 / 6 years’ imprisonment to commence on 24 November 2022 / Count 12 / 5 years’ imprisonment to commence on 24 November 2022 / Count 10 / 4 years’ imprisonment to commence on 24 November 2022 / Count 24 / 7 years’ imprisonment to commence on 24 November 2026 / Count 25 / 2 years’ imprisonment to commence on 24 November 2026 / Counts 11, 14 and 17 / 5 years’ imprisonment to commence on 24 May 2029 / Count 9, 19, 20 and 28 / 4 years’ imprisonment to commence on 24 May 2029 / Counts 1, 2, 4, 5, 6,7, 13, 22, 23 and 26 / 3 years’ imprisonment to commence on 24 May 2029 / Count 18 / 2 years’ imprisonment to commence on 24 May 2029 / Count 29 / 3 years’ imprisonment to commence on 24 May 2029 / Counts 15, 16 and 27 / 12 months’ imprisonment to commence on 24 November 2033 / A single non-parole period for the federal offences of 6½ years is fixed to commence on 24 November 2022.
Count Sentence
State indictment
Count 1 15 months’ imprisonment to commence on 23 November 2021
Count 2 18 months’ imprisonment to commence on 23 November 2021
Count 3 2 years’ imprisonment to commence on 23 November 2021
Count 4 12 months’ imprisonment to commence on 23 November 2021
The imprisonment for State counts 1 to 4 is to be served concurrently.
State summary charges
Charges 1 and 2 Convicted and not further punished
Commonwealth indictment
Count 8 9 years’ imprisonment to commence on 24 November 2022
Count 21 6 years’ imprisonment to commence on 24 November 2022
Count 12 5 years’ imprisonment to commence on 24 November 2022
Count 10 4 years’ imprisonment to commence on 24 November 2022
Count 24 7 years’ imprisonment to commence on 24 November 2026
Count 25 2 years’ imprisonment to commence on 24 November 2026
Counts 11, 14 and 17 5 years’ imprisonment to commence on 24 May 2029
Count 9, 19, 20 and 28 4 years’ imprisonment to commence on 24 May 2029
Counts 1, 2, 4, 5, 6,7, 13, 22, 23 and 26 3 years’ imprisonment to commence on 24 May 2029
Count 18 2 years’ imprisonment to commence on 24 May 2029
Count 29 3 years’ imprisonment to commence on 24 May 2029
Counts 15, 16 and 27 12 months’ imprisonment to commence on 24 November 2033
A single non-parole period for the federal offences of 6½ years is fixed to commence on 24 November 2022.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS – where the respondent was convicted in the Supreme Court of Queensland on his own plea of guilty and sentenced in respect of 28 counts of various types of child sex offending against the Criminal Code (Cth) and four counts of offending against the Criminal Code (Qld) – where the respondent was sentenced to a total effective sentence of 9 years’ imprisonment with a non-parole period of 4½ years – where the appellant appealed against the sentence on the ground that the individual sentences, the total effective sentence and the non-parole period were manifestly inadequate – whether the appellant could demonstrate error in the exercise of the sentencing discretion of the kind identified in House v The King (1936) 55 CLR 499 – whether the appellant could persuade the Court not to exercise its residual discretion not to interfere with the sentence below / Corrective Services Act 2006 (Qld), s 184(2) / Crimes Act 1914 (Cth), s 16, s 16A, s 19, s 19AB, s 19AJ / Criminal Code (Cth), s 242.11, s 272.8, s 272.9, s 272.11, s 272.14, s 474.19, s 474.22, s 474.23, s 474.25 / Criminal Code (Qld), s 228D / Baden v The Queen [2020] NSWCCA 23, considered / CMB v Attorney-General (NSW) (2015) 256 CLR 346; [2015] HCA 9, cited / House v The King (1936) 55 CLR 499; [1936] HCA 40, applied / Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70, applied / R v Armstrong [2016] QCA 243, cited / R v Harrison; Ex parte Director of Public Prosecutions (Cth) (2021) 294 A Crim R 1; [2021] QCA 279, applied / R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, distinguished / R v Yaroslavceff [2022] SASCA 123, cited / Rivo v The Queen [2012] VSCA 117, considered
COUNSEL: B J Power KC, with J M Goldie, for the appellant / C De Marco for the respondent
SOLICITORS: Director of Public Prosecutions (Commonwealth) for the appellant / Harper Finch Lawyers for the respondent
McMURDO JA: I have read in draft the judgment of Bond JA in which the relevant facts, the sentencing reasons of the primary judge and the arguments in this Court are detailed. I have reached a different conclusion. I would dismiss the appeal because it is not demonstrated that in all the circumstances, the orders made were unreasonable or plainly unjust.1 The discretion to allow the appeal and to impose a different sentence is not enlivened, because that threshold is not met.
The appellant’s argument does not suggest that there was any particular error which was made by the sentencing judge except perhaps to say that “the global head sentence of nine years imposed on count 8 failed to reflect the totality of the respondent’s conduct, the criminality of the offending, the principle of general deterrence, and the maximum penalty available to count 8” with the result that the sentence was not of a “severity appropriate in all the circumstances of the offence” as required by s 16A(1) of the Crimes Act 1914 (Cth).
Understandably, the appellant’s submissions emphasised the gravity of the conduct in question. The appellant rightly submits that the offending was predatory, persistent and protracted, involving victims who were young children with a particular vulnerability due to their impoverished circumstances. However it is not suggested that the sentencing judge was in any respect of a different opinion. His Honour described the gravity of the offending as appalling and extremely serious and he was cognisant of every feature of the offending which informed its seriousness. Nor is it suggested that his Honour misunderstood the respondent’s personal circumstances and was mistaken in any of his findings in which he identified the circumstances of mitigation.
There is no criticism of the judge’s methodology, by which he arrived at the head sentence of nine years for count 8 by “allowing for a degree of uplift” because of the concurrency of the sentences which he was minded to impose for the other offences. It is not said that his Honour revealed an error in making the other sentences concurrent with that to be imposed for count 8 or that he was wrong in observing that a sentence of nine years was “within a proportionate range for count 8 standing alone”. The appellant’s argument is that if the judge’s methodology, of an uplifted sentence for count 8 because of the other sentences being made concurrent was to be employed, it was not open to the judge to impose an outcome of a period of nine years imprisonment with a non-parole period of four and a half years.
Of course there is no single correct sentence and the appellate court’s power to vary a sentence does not exist simply because that court would have imposed a different sentence.
The respondent’s offending
The facts of the offending were set out in an agreed statement of facts and are outlined in the paragraphs below. The references to specific numbered counts are references to the counts identified in the table which follows. That table also records more specific details as to the nature of the offending in each count as found by the sentencing judge in his sentencing remarks.
Over 14 months between 8 February 2019 and 19 April 2020 and on 23 discrete occasions, the respondent, aged 35, used Facebook Messenger to communicate with AM, who was a woman in the Philippines. AM had an eight-year-old daughter, K, and a niece who was three to four years old. It was made clear to the respondent during those communications that they lived in impoverished circumstances. The respondent made arrangements to pay AM for the provision of sexual materials involving K, AM’s niece, and other children. In total he arranged for electronic payment to AM of the equivalent of $874.10.
AM fulfilled the respondent’s requests by using Facebook Messenger to send him child pornography and child abuse material. This conduct involved the respondent committing the Commonwealth offences of –(a)using a carriage service to solicit child pornography material (counts 1, 2, 4, 6, 9, 11, 13, 14, 17 and 19); and(b)using a carriage service to solicit child abuse material (counts 20, 22, 23, 26 and 28).
AM also fulfilled the respondent’s requests by, on nine separate occasions, engaging children in sexual activity and livestreaming video and audio of those acts to the respondent, while instantaneously receiving feedback from the respondent through Facebook Messenger. By that method the respondent directed AM as to the specific nature of sexual activity which he required to take place. This conduct involved the respondent committing the Commonwealth offences of –(a)persistent sexual abuse of child outside Australia (counts 8 and 21, involving the child K); and(b)sexual intercourse with child outside Australia (count 24, involving another child).
On four occasions, during the live shows, the respondent used screen capturing software to record the content of the show. He then sent the recordings, as well as other materials, to himself using two separate Facebook Messenger accounts to preserve the materials. This conduct involved the respondent committing the Commonwealth offences of –(a)using a carriage service to transmit child pornography material (counts 5, 7, 10, 12 and 18); and(b)using a carriage service to transmit child abuse material (count 25).
On 16 February 2019, the respondent suggested bringing AM and K to Australia instead of doing the shows. On 29 May 2019 and on 19 April 2020, the respondent confirmed that AM lived in Manila and indicated that he intended to travel to the Philippines and to stay with her for a week. He indicated that he intended to pay AM to spend a week with her, K and another 12-year-old child, for the purpose of engaging in sexual activities with them. This conduct involved the respondent committing the Commonwealth offences of –(a)using a carriage service to prepare or plan to engage in sexual activity with a person under 16 (count 27); and(b)procuring a child to engage in sexual activity outside Australia (counts 15 and 16).
Count Offence and nature of offending Max. penalty Sentence
Commonwealth indictment
Count 1 Using a carriage service to solicit child pornography material (s 474.19(l)(a)(iv) Criminal Code (Cth)) / The respondent requested and received 10 child abuse photographs of K. The photographs had a clear view of her vagina and prepubescent breasts. 15 years’ imprisonment 3 years’ imprisonment
Count 2 Using a carriage service to solicit child pornography material (s 474.19(l)(a)(iv) Criminal Code (Cth)) / The respondent requested and received five images of AM’s three-to- four-year-old niece, showing her breasts and genitals. 15 years’ imprisonment 3 years’ imprisonment
Count 3 A nolle prosequi was presented and the charge discontinued
Count 4 Using a carriage service to solicit child pornography material (s 474.19(l)(a)(iv) Criminal Code (Cth)) / The respondent requested and received eight images of K, involving close-ups of her vagina, anus and of her finger touching those areas. 15 years’ imprisonment 3 years’ imprisonment
Count 5 Using a carriage service to transmit child pornography material (s 474.19(l)(a)(ii) Criminal Code (Cth)) / The respondent uploaded those eight images to his Facebook Messenger account. 15 years’ imprisonment 3 years’ imprisonment
Count 6 Using a carriage service to solicit child pornography material (s 474.19(l)(a)(iv) Criminal Code (Cth)) / The respondent requested and received two images of K showing her vagina and anus, and one image of AM’s niece showing her vagina and breasts. 15 years’ imprisonment 3 years’ imprisonment
Count 7 Using a carriage service to transmit child pornography material (s 474.19(l)(a)(ii) Criminal Code (Cth)) / The respondent uploaded those three images to his Facebook messenger account. 15 years’ imprisonment 3 years’ imprisonment
Count 8 Persistent sexual abuse of a child outside Australia (s 272.11 Criminal Code (Cth)) / On six separate occasions the respondent viewed livestreamed videos of sexual activity involving K. / On 6 March 2019, the respondent directed a livestreamed video involving penile penetration of K’s vagina by an 18-year-old male relative of K. The respondent directed for the male’s penis to go inside K’s vagina and for him to ejaculate inside of her. / On 13 March 2019, another livestreamed video occurred during which the respondent directed AM to digitally penetrate K’s vagina, to increase to two fingers “deep inside” and that she and K should sit against the wall and finger themselves. / On 20 March 2019, the respondent directed AM to penetrate K with a bottle and up to three fingers, over livestream. The respondent was undeterred by AM telling him that K was in pain from the penetration of the bottle. He told AM to “go slow and deep” and he wanted to see her face on camera. / On 10 April 2019, the respondent directed that sexual intercourse take place over livestreamed video between K and AM’s nephew. The respondent directed, “I want to see it hard and fuck”. / On 22 May 2019, the respondent directed sexual intercourse between K and a 23-year-old male. He again directed them to “start fucking” and he wanted to see K’s face on camera. / On 29 May 2019, there was a further occasion of sexual intercourse between K and a boy which was livestreamed to the respondent. 25 years’ imprisonment 9 years’ imprisonment
Count 9 Using a carriage service to solicit child pornography material (s 474.19(l)(a)(iv) Criminal Code (Cth)) / The respondent requested and received 10 pornographic photographs of K. He directed K to remove clothes and photograph the digital penetration of K’s vagina. The images included shots of K topless with her prepubescent breasts exposed and a close-up view of prepubescent vagina. 15 years’ imprisonment 4 years’ imprisonment
Count 10 Using a carriage service to transmit child pornography material (s 474.19(l)(a)(ii) Criminal Code (Cth)) / The respondent uploaded the live show from 13 March 2019, along with some animated child pornography material. 15 years’ imprisonment 4 years’ imprisonment
Count 11 Using a carriage service to solicit child pornography material (s 474.19(l)(a)(iv) Criminal Code (Cth)) / The respondent requested and received 14 pornographic photographs of K. There were about 10 images of K sucking on a 14-year-old boy’s penis, and the boy then penetrating K’s vagina with his penis. The respondent had given directions for this activity to occur. 15 years’ imprisonment 5 years’ imprisonment
Count 12 Using a carriage service to transmit child pornography material (s 474.19(l)(a)(ii) Criminal Code (Cth)) / The respondent uploaded the live show from 20 March 2019. 15 years’ imprisonment 5 years’ imprisonment
Count 13 Using a carriage service to solicit child pornography material (s 474.19(l)(a)(iv) Criminal Code (Cth)) / The respondent requested and received 12 pornographic photographs of K, 10 of which involved her being undressed and including images of her vagina and anus. 15 years’ imprisonment 3 years’ imprisonment
Count 14 Using a carriage service to solicit child pornography material (s 474.19(l)(a)(iv) Criminal Code (Cth)) / The respondent requested and received 28 pornographic photographs of K. The respondent directed photographs to be taken of AM and her son, of K and AM’s son, and of K naked. / There were photos of K with her mouth on her mother AM’s crotch, K sucking a prepubescent male penis and photos of the boy penetrating K’s vagina with his penis. 15 years’ imprisonment 5 years’ imprisonment
Count 15 Procuring child to engage in sexual activity outside Australia (s 272.14 Criminal Code (Cth)) / The respondent and AM communicated online about the respondent travelling to Manila, discussed where he would stay and planned for sexual activity to occur with K. 15 years’ imprisonment 12 months’ imprisonment
Count 16 Procuring child to engage in sexual activity outside Australia (s 272.14 Criminal Code (Cth)) / There was further discussion about the respondent engaging in sexual activity with a 12-year-old child, whilst on his visit to Manila. 15 years’ imprisonment 12 months’ imprisonment
Count 17 Using a carriage service to solicit child pornography material (s 474.19(l)(a)(iv) Criminal Code (Cth)) / The respondent requested and received 42 images of AM’s 16-year-old niece and her 13-to-14-year-old nephew. There were nine photos of the niece getting undressed with a focus on her breasts and vagina. / The respondent wrote to AM requesting “fuck photos with niece and son”. The respondent then received an additional 33 images of the niece performing oral sex on the boy and having sex in various positions with the boy and masturbating. 15 years’ imprisonment 5 years’ imprisonment
Count 18 Using a carriage service to transmit child pornography material (s 474.19(l)(a)(ii) Criminal Code (Cth)) / The respondent uploaded a video of a girl in her early teens dancing without underwear, to his Facebook Messenger account. 15 years’ imprisonment 2 years’ imprisonment
Count 19 Using a carriage service to solicit child pornography material (s 474.19(l)(a)(iv) Criminal Code (Cth)) / The respondent requested and received three photographs. Two photographs depicted a 16-year-old girl’s vagina, and the third was of K sucking on AM’s breasts. 15 years’ imprisonment 4 years’ imprisonment
Count 20 Using a carriage service to solicit child abuse material (s 474.22(l)(a)(iv) Criminal Code (Cth)) / The respondent received 61 pornographic photographs of K. She was naked in a majority of the images and there was a clear focus on her vagina, whilst showering and posing with her vagina in focus. 15 years’ imprisonment 4 years’ imprisonment
Count 21 Persistent sexual abuse of a child outside Australia (s 272.11 Criminal Code (Cth)) / This count involved two livestreamed videos. / The first video was on 28 January 2020 and involved digital penetration of K and oral sex. K, AM and AM’s niece were all involved in the sexual activity. The respondent directed the girls’ activity during the livestream. / The second livestream video occurred on 4 April 2020. It involved the digital penetration of K and of AM’s four-year-old niece. The respondent directed that the sexual activity involve the two girls kissing and fingering each other. 25 years’ imprisonment 6 years’ imprisonment
Count 22 Using a carriage service to solicit child abuse material (s 474.22(l)(a)(iv) Criminal Code (Cth)) / The respondent requested and received two pornographic photographs of K, lifting her dress with a focus on her underwear. 15 years’ imprisonment 3 years’ imprisonment
Count 23 Using a carriage service to solicit child abuse material (s 474.22(l)(a)(iv) Criminal Code (Cth)) / The respondent received 10 pornographic photographs of K. The respondent again directed what he wanted to see in the photos. 15 years’ imprisonment 3 years’ imprisonment
Count 24 Sexual intercourse with a child outside Australia (s 272.8 Criminal Code (Cth)) / This count involved a further livestreamed video. / On 12 April 2020, the respondent directed and viewed a livestream video of AM performing fellatio and having sexual intercourse with her 14-year-old son. 20 years’ imprisonment 7 years’ imprisonment
Count 25 Using a carriage service to transmit child abuse material (s 474.22(l)(a)(ii) Criminal Code (Cth)) / The respondent uploaded the live show from the 12 April 2020. 10 years’ imprisonment 2 years’ imprisonment
Count 26 Using a carriage service to solicit child abuse material (s 474.22(l)(a)(iv) Criminal Code (Cth)) / The respondent requested and received 32 pornographic photographs of K. In some images she was on her hands and knees with a focus on her vagina and anal area and showering. 15 years’ imprisonment 3 years’ imprisonment
Count 27 Using a carriage service to plan to engage in sexual activity with a person under 16 (s 474.25C Criminal Code (Cth)) / The respondent confirmed that he intended to travel to Manila to engage in sexual activity with K. 10 years’ imprisonment 12 months’ imprisonment
Count 28 Using a carriage service to solicit child abuse material (s 474.22(l)(a)(iv) Criminal Code (Cth)) / The respondent received two pornographic photographs of K masturbating the penis of a boy about 14 years of age. 15 years’ imprisonment 4 years’ imprisonment
Count 29 Controlling child abuse material for use through a carriage service (s 474.23 Criminal Code (Cth)) / The respondent controlled the ‘Mega.nz’ account which was a cloud storage account in which the respondent had child abuse material stored. There were 1877 photographs and videos in total, of which 10% were photographs and 90% were videos. They involved a wide array of depravity involving children and interactive sexual abuse of them. 15 years’ imprisonment 3 years’ imprisonment
State Indictment
Count 1 Possessing child exploitation material (s 228D(l)(b) Criminal Code (Qld) (x4)) / The respondent possessed a total of 1103 videos and 714 still images across four devices. Some were stored in a computer tower (count 4), some on an external hard drive (count 3) and others on two mobile phones (counts 1 and 2). / The majority of the imagery was in the most serious category involving child sexual activity. 10% of the images and videos were a duplication of the material stored on the cloud subject to the Commonwealth charge. 14 years’ imprisonment 15 months’ imprisonment
Count 2 14 years’ imprisonment 18 months’ imprisonment
Count 3 14 years’ imprisonment 2 years’ imprisonment
Count 4 14 years’ imprisonment 12 months’ imprisonment
Summary charges
Charges 1 and 2 Unlawful possession of restricted drugs (s 204 Health (Drugs and Poisons) Regulation 1996 (Qld) (x2)) / The respondent possessed the restricted drugs Sildenafil and Tadalafil. 60 penalty units fine Convicted and not further punished
Sentencing remarks
The sentencing judge first summarised the nature of the offending. No criticism could be made of the way he did so.
His Honour identified, correctly, that the most serious charges were counts 8 and 21, which involved persistent sexual abuse of the child K. His Honour also noted, correctly, that, as between the two, the offending in relation to count 8 was of a more serious nature than that in relation to count 21.
His Honour summarised his views as to the gravity of the offending in these terms:
“Your offending was extremely serious. It has been repeatedly observed that those who procure child pornography and abuse imagery off the internet are not indulging in victimless passive consumerism and they deserve substantial punishment because they provide a market for those directly involved in the morally corrupt use of the unfortunate child victims. Your offending though is materially more serious in that you were directly involved in directing the abuse.
That you were thousands of kilometres away doing this online, I accept, would have deadened you to the reality that you were directly participating as a party to the sexual abuse but I do not accept you could have been blind to it – the offending was so prolonged and it has to be said involved such a high level of organisation. The reality was you were directly participating as a party to the sexual abuse in circumstances which, as I have mentioned, our law would regard as involving repetitive instances of rapes, given the victims’ age precluded informed consent. If the players were in fact related, as you apparently believe them to be, then from your perspective you are also a party to procuring acts of incest. I acknowledge, of course, that you were not charged with those crimes. I repeat, I am not approaching the matter as if I am sentencing you for those crimes, but I highlight that feature of the matter because the grave level of sexual activity that is reflected by so highlighting that feature of the matter underscores the gravity of your actual offending.”
The sentencing judge identified other aggravating features of the respondent’s criminality:(a)The offending involved more than one child, including some who were very young.(b)The offending was repeated and conducted over a long period of time.(c)The offending involved a high level of planning and organisation including establishing an internet connection and relationship with AM, securing her cooperation in return for payments, directing and recording the abuse and uploading imagery of it.(d)The offending involved the cynical exploitation of AM’s poverty, of which the respondent was well aware.(e)The offending the subject of count 24 was a particularly serious count in its own right, involving a single instance of sexual offending against another child.
Against those features, the sentencing judge recognised that he had to weigh the following considerations:(a)The respondent had cooperated with the police in their attendance during the search, made admissions, and had cooperated with the administration of criminal justice by entering what were properly categorised as early guilty pleas to all charges. Although he thought these were significant considerations in the respondent’s favour, he did bear in mind in mind that the evidence against the respondent was such that he was effectively caught “red-handed”.(b)The respondent had no previous convictions.(c)The respondent had lost his job, had suffered local public humiliation when his offending became known, had lost access to bank accounts, had been on bail reporting weekly for a prolonged period, and had been deprived of internet access. In effect he had been “living in shame as a recluse”.(d)There was no evidence that the respondent was the only corrupter involved in the process in the Philippines.(e)The respondent had not personally engaged in physical activity with his victims.(f)This was not a case of dissemination of child pornography.
The sentencing judge had regard to a psychologist’s report. His Honour noted that:(a)The respondent had unremarkable antecedents.(b)The respondent had difficulties in establishing and maintaining friendships particularly in his adult years, and had poor interpersonal and communication skills.(c)The respondent had a sparse sexual development and relationship history. His only serious relationship had been an online relationship with a woman in Colombia who he had physically met only on two occasions.(d)The respondent had intense feelings of loneliness and sadness.(e)He was prepared to accept that at the time of offending the respondent was suffering to an extent from depression in the clinical sense. However, his Honour remarked:
“I am quite unable to accept the notion that you did not have insight into the reality that what you were doing was against the law and very serious.
…
I am quite unpersuaded, and indeed there is no material that really is on point here, that your depressive state of itself provides a material mitigatory causative explanation for what occurred.”
(f)The psychologist had opined that at the time of sentencing the respondent met the criteria in the DSM-5 for a major depressive disorder, recurrent episode severe, post-traumatic stress disorder and generalised anxiety disorder. Although his Honour accepted that the respondent’s depression had been an on-going issue, he remarked that depression and anxiety disorders often walk “hand in glove” with the state of those who have offended and know they are facing a very long time in jail. His Honour found that the psychologist’s opinion in relation to post-traumatic stress disorder was unexplained by the report and therefore gave no weight to it.
(g)The respondent’s psychological or psychiatric problems were relevant in that time in custody would bear more heavily on the respondent than it would an ordinary person. However, he found that the respondent’s mental state was not so severe that it should occasion a material discount of his penalty.
“I have been referred to a variety of comparators in other decisions. Those of most arguable assistance were Rivo [2012] VSCA 117 involving a head sentence of seven years and Baden [2020] NSWCCA 23 involving an accumulated head sentence of 11 years and four months. Rivo was rendered less helpful because it did not involve offending charged under section 272.11(1) which has a 25 year maximum, the offence not then existing and the maximum for the offence which did capture a like category offending being only 15 years. While Baden did involve the newer, more serious offence it was a somewhat more serious case than the present. I would add that Baden’s previous relevant conviction made him a less viable candidate for a proportionately generous parole date….
Notwithstanding the circumstances in your favour, it is clear jail is the only appropriate sentence and that its duration should be of a severity appropriate to all of the circumstances culminating in a head sentence of nine years. I have given great consideration to the various submissions made about cumulative and concurrent sentencing in this case but having concluded that the appropriate sentence is nine years and that it should attract the most serious of the offences, count 8, and conclude, in arriving at that head sentence, even allowing for a degree of uplift because of the concurrency of the sentences I intend to impose, that the sentence of nine years does not exceed that within a proportionate range for count 8 standing alone. The case is an appropriate one in which to simply engage in a series of cascading concurrent sentences. Convictions are recorded.”
“In Kruezi,8 the majority held:
The approach endorsed in Nagy of selecting a higher sentence for the most serious offence to take into account the overall criminality for all offending for which the offender is then being sentenced can apply to sentencing for Commonwealth offences, but only if it results in a sentence for each offence “that is of a severity appropriate in all the circumstances of the offence ” in compliance with s 16A(1) of the Act, including the totality principle in its various aspects. Where the sentencing involves more than one federal offence, s 16A(1) applies to the sentence for each offence, but in the context of the sentences imposed for all offences in the same sentencing.
It is submitted that, similar to the approach taken in Baden v R, it is appropriate to structure the sentences with a degree of cumulation to reflect the fact that there were separate and discrete instances of offending committed against multiple victims.
It is submitted that sentencing using the Nagy approach would not allow for a sentence of a severity appropriate in all the circumstances, as it would result in a manifestly excessive sentence on the most serious count.”
Prosecution appeals against sentence
There is a difference in appellate approach to offender and prosecution appeals against sentence, which is explained by reference to the purpose that each serves: offender appeals being concerned with the correction of error in the particular case and prosecution appeals being concerned with laying down principles for the guidance of sentencing courts.9
Accordingly, in order to succeed in the present case, the appellant must surmount two hurdles. First, it must demonstrate error in the exercise of the sentencing discretion of the kind identified in House v The King.10 Second, if that threshold is met, the appellant must persuade this Court not to exercise its residual discretion not to interfere with the sentence below. The High Court has identified this as an onus “… to negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised”.11
The first hurdle: has error been demonstrated?
The appellant did not allege specific error but submitted that the Court should be driven to infer there must have been some misapplication of principle in the sentencing exercise because, having regard to all relevant sentencing factors, the overall sentence12 and the length of the non-parole period were manifestly inadequate. The respondent contended that, while he accepted that this Court might well form the view that the sentence was lenient, the Court could not form the view that it was outside the bounds of a proper exercise of discretion by the sentencing judge.
In the recent decision of R v Harrison; Ex parte Director of Public Prosecutions (Cth) (2021) 294 A Crim R 1 the Court of Appeal identified relevant sentencing principles.
First, as to relevant general principles of sentencing for Commonwealth offences:13
“Division 2 of pt IB of the Crimes Act sets out the general sentencing principles that are to be applied in sentencing federal offenders. The overarching principle is contained in s 16A(1):
“16A Matters to which court to have regard when passing sentence etc.—federal offences
(1)In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.”
Section 16A(2) provides a non-exhaustive list of matters that a sentencer is bound to take into account if those matters are known and relevant.
The expression 'of a severity appropriate in all the circumstances of the offence', and some of the expressions used in s 16A(2) such as 'the need to ensure that the person is adequately punished for the offence', means that s 16A of the Crimes Act accommodates the application of common law principles of sentencing, including the totality principle.
Where, as in this case, a court imposes federal sentences that, in aggregate, exceed 3 years, and the offender is not already serving or subject to a federal sentence, the court must (subject to s 19AB(3) [of the Crimes Act]) fix a single non-parole period.”
“In Pearce v The Queen,15 McHugh, Hayne and Callinan JJ stated that a judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well as totality.16 Their Honours emphasised the importance of fixing an appropriate sentence for each offence before the totality principle is applied. The preferred approach to the application of the totality principle is to achieve an appropriate total effective sentence by making sentences wholly or partially concurrent.17 Another approach is to lower the individual sentences below what would otherwise be appropriate.18”
Third, the Court confirmed that the Nagy principle could be applied to Commonwealth offences, but noted the constraint identified in Kruezi, as to which see [33] above.19
Fourth, as to setting a non-parole period (emphasis removed, footnotes in original):20
“As to the length of a non-parole period, there is no judicially-determined norm or starting point, expressed as a percentage or otherwise, for the period of imprisonment to be served before release on parole. The general principles applicable to the fixing of a non-parole period have been described by the High Court in Power v The Queen21 and Bugmy v The Queen.22 The purpose of a non-parole order is to 'provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence'.23
The considerations which a sentencing judge must take into account when fixing a non-parole period will be the same applicable to the setting of the sentence. However, the weight to be given to these factors and the manner in which they are relevant will differ in consequence of the different purposes underlying each function.24 The sentencing factors which count against mitigation may increase the length of the head sentence and also the proportion that the non-parole period bears to the head sentence. The converse applies to sentencing factors in favour of mitigation. Any necessary deterrent and punitive effects of sentences for a particular offence must be reflected both in the head sentence and also in the non-parole period.25”
“An orthodox approach to whether an individual sentence is manifestly excessive or inadequate is to examine it, having regard to the maximum sentence for the offence, the gravity of the offending conduct on the scale of seriousness and the personal circumstances of the offender.27 Where there are sufficient comparable cases, it will be relevant, but not essential, to a claim of manifest inadequacy to demonstrate that an individual sentence was inconsistent with the outcomes in those cases,28 bearing in mind that such outcomes do not fix the boundaries within which future judges must, or even ought, to sentence.29 The absence of sufficient comparable cases does not mean that manifest inadequacy cannot be demonstrated. It still may be shown by consideration of all of the relevant features of the case.30”
Rivo was a case in which an offender had been sentenced to a total effective sentence of 7 years’ imprisonment with a non-parole period of 5 years. Rivo sought leave to appeal against his sentence on the basis that it was manifestly excessive. He had participated in six separate chat sessions and procured and directed shows involving sexual activities with children on 12 occasions. The children in the shows were aged between eight and 16 years old. The sexual activities did not amount to penile rape, and there was only one occasion which involved digital penetration. The shows were not recorded. The maximum penalty in respect of the offences charged against the offender were 15 years’ imprisonment.
The sentencing judge and the appellant were right to suggest that Rivo involved less serious offending than the present case.
In Baden the offender had been convicted and sentenced to an aggregate sentence of 11 years’ and four months’ imprisonment with a non-parole period of 7 years and 4 months in respect of the four Commonwealth offences and two State offences. The sentencing judge introduced an element of concurrency and cumulation of the offences in the following manner:
Count Offence and nature of offending Max. penalty Sentence
Commonwealth indictment
Count 1 Procuring child to engage in sexual activity outside Australia (s 272.14 Criminal Code (Cth)) / Between about 17 April 2012 and about 8 September 2016 he procured a child [the elder child] (aged six when the offending commenced) to engage in sexual activity outside Australia. 15 years’ imprisonment 5 years’ imprisonment from 3 January 2021
Count 2 Procuring child to engage in sexual activity outside Australia (s 272.14 Criminal Code (Cth)) / Between about 17 April 2012 and about 8 September 2016 he procured a child [the younger child] (aged two when the offending commenced) to engage in sexual activity outside Australia. 15 years’ imprisonment 4 years’ imprisonment from 3 January 2019
Count 3 Persistent sexual abuse of a child outside Australia (s 272.11 Criminal Code (Cth)) / Between about 19 June 2016 and about 6 August 2016 he engaged in persistent sexual abuse of the elder child outside Australia by committing an offence against s.272.9(1) of the Code on three separate occasions on the same child. 25 years’ imprisonment 8 years’ imprisonment from 3 January 2022
Count 4 Sexual activity with a child outside Australia (s 272.9 Criminal Code (Cth)) / On or about 23 June 2016 he engaged in sexual activity, other than sexual intercourse, with the younger child. 15 years’ imprisonment 5 years’ imprisonment from 3 July 2019
State indictment
Count 1 Possessing child abuse material (s 91H(2) Crimes Act 1900 (NSW)) / On 13 September 2016 he possessed child abuse material on a USB. 10 years’ Imprisonment 10 months’ imprisonment from 3 September 2018
Count 2 Possessing child abuse material (s 91H(2) Crimes Act 1900 (NSW)) / On 13 September 2016 he possessed child abuse material on a hard drive. 10 years’ Imprisonment 12 months’ imprisonment from 3 October 2018
Like the present case Baden paid money to the mother of the children who lived in the Philippines. The first two counts involved conduct which extended over a four-year period. They involved chats with both victims online and via webcam. The content of the chats was highly sexualised and involved Baden detailing sexual acts which he wanted to perform on the children. The most serious offending was that of counts 3 and 4. That occurred over a six-week period. Counts 3 and 4 involved use of a webcam. Baden engaged in sexual activity on three occasions with the elder child and one occasion with the younger child. The occasions with the elder child entailed her performing sexual activity upon herself whilst Baden performed sexual activity upon himself. One of the incidents with the elder child was shared with the incident for the younger child and entailed the girls engaging in sexual activity whilst Baden masturbated. The victims were 11 and 7 respectively at the time of that offending.
Baden had a prior criminal history concerning three counts of unlawful sexual intercourse with a 13-year-old child. When apprehended, he made a number of false exculpatory statements to police and continued to defend the charges until a late guilty plea on the first day of trial. The sentencing judge assessed that it was difficult to gauge the appellant’s prospects of rehabilitation. Baden sought leave to appeal against sentence on the grounds that it was manifestly excessive. The Court rejected the application.
Notwithstanding the considerations just identified, the sentencing judge was wrong to regard the offending in Baden “as a somewhat more serious case than the present”. The offending in relation to the most serious count in Baden was not nearly as serious as that involved in the most serious case of the respondent’s offending and it occurred over a not dissimilar time frame.
Harrison involved a prosecution appeal on the grounds of the manifest inadequacy of the sentence imposed below. This Court re-sentenced Harrison to an effective overall sentence of 8 years’ imprisonment and set a 5-year non-parole period. The offending and the sentences imposed on resentence was as follows:
Count Offence and nature of offending Maximum Penalty Sentence
Count 1 Persistent sexual abuse of a child outside Australia (s 272.11(1) Criminal Code (Cth)) / The victim, R, was a Filipino girl aged between 14 and 15. Between 31 October 2016 and 3 August 2017 Harrison travelled from Australia to the Philippines on three occasions over a period of approximately nine months during which he committed repeated acts of sexual assault and rape. He paid R small amounts of money. 25 years’ imprisonment 7 years’ imprisonment
Count 2 Use of a carriage service to cause child pornography material to be transmitted to self (s 474.19(1) Criminal Code (Cth)) / The offending occurred between 2 February 2017 and 27 August 2017. It involved another female child whose precise age was not proved but who was under 18 and was a schoolgirl. Harrison requested and obtained child pornography material from her. 15 years’ imprisonment 18 months’ imprisonment
Count 4 Using a carriage service to transmit child pornography material (s 474.19(1) Criminal Code (Cth)) / On about 25 July 2017 Harrison sent one image of child pornography to another person via Facebook Messenger. 15 years’ imprisonment 6 months’ imprisonment
Count 5 Encouraging an offence against Division 272 of the Code (s 272.19(1) Criminal Code (Cth)) / Between 21 August 2017 and 1 October 2017 Harrison communicated with R via Facebook Messenger seeking to have R procure another female child to engage in sexual activity with him. 20 years’ imprisonment 18 months’ imprisonment
Count 7 Possessing child exploitation material (s 228D Criminal Code (Qld)) / On or about 5 October 2017 Harrison was found in possession of photographs of R naked but not engaged in any sexual activity. 14 years’ imprisonment 6 months’ imprisonment
Although Harrison was physically involved in the sexual activity, I accept the appellant’s submission that the criminality of his conduct was less serious than the present offending. There were only three occasions of sexual activity and the child was significantly older. The aspect of corruption of a family relationship was not present.
In the present case, the appalling nature of the eight occasions of the livestreamed shows involving the child K which were the subject of count 8 and 21 which the respondent directed for his own disordered sexual gratification constituted grave offending. As mentioned, it was more serious than that for which Baden was sentenced for 8 years imprisonment. It involved gross exploitation of a vulnerable child in a foreign land by the corruption of the familial ties on which the child should have been able to rely for protection. The fact that the respondent only solicited and directed the abuse and did not physically participate in it did not render the offending less grave.31 He was using AM and others as his surrogate for the infliction of physical sexual abuse on the child K, involving penile, digital and mechanical penetration of the child. He sought to view up close the pain which was thereby caused to her. A sentence of at least 9 years was warranted for that offending alone.
However, the sentencing judge determined that a sentence of 9 years’ imprisonment was an appropriate reflection not merely of the offending constituted by count 8 and 21, but, by the application of the Nagy principle, an appropriate reflection of the criminality of all of the other offending. I agree with the submission advanced by the appellant that a 9-year aggregate sentence was manifestly inadequate. The seriousness of the other offending was reflected in the individual sentences imposed by the sentencing judge. Making those other offences entirely concurrent with the sentence imposed in respect of count 8 did not pay adequate regard to the criminality involved in the other offending and does not adequately reflect the respondent’s overall criminality. It infringed the totality principle.
The consequence is that unless the residual discretion is exercised this Court must resentence the respondent.
In the circumstances it is not necessary to consider the separate argument addressing the alleged inadequacy of the non-parole period.
The second hurdle: has the prosecution discharged its onus in relation to the residual discretion?
This Court is required to give careful and distinct consideration to the question whether the prosecution has discharged its onus of persuading the Court that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the prosecution to appeal against sentence is justified.32 There is no onus on the respondent to establish that the residual discretion should be exercised in his favour.33
Relevant considerations include the extent to which the determination of the Court would provide guidance to courts or practitioners in the future; the imminence of the offender's release from custody, on parole or otherwise; delay or other fault on the part of the prosecution; the effect of any further resentencing on progress towards the respondent’s rehabilitation; parity; and totality.34
In this case, in support of a submission that it had discharged its onus, the appellant suggested that this was a case where the offending was such that it is important that just punishment be imposed on the individual offender; that this was not a case where the respondent has almost finished a sentence, or has been released from a sentence, such that he would face a return to custody; and this is not a case where there had been some error or omission by the prosecution at first instance or delay in bringing the appeal. On the other hand, the respondent’s submissions did not identify any particular reasons arising out of the circumstances of this case as to why the residual discretion not to interfere should be exercised.
The way in which the appellant phrased the first point mentioned in the previous paragraph is problematic in a prosecution appeal founded on manifest inadequacy. It is always important that just punishment be imposed for an individual offender. But, as the first hurdle is a threshold question, if the second hurdle is to be addressed at all it will be because the prosecution has already demonstrated that the sentence imposed was manifestly inadequate as a just punishment for the individual offender. What is relevant in relation to the second hurdle is the extent to which the recognition of that manifest inadequacy will fulfil the purpose of a prosecution appeal against sentence.
In the present case the total effective sentence was substantially below that which the justice of the case required and, given the limited guidance in the authorities for the relevant offending, if this Court did not intervene, it would “… undermine the principles of proper punishment and general deterrence which are the dominant sentencing considerations in cases such as this” and, in so doing, would provide inappropriate guidance for sentencing courts. The appellant correctly identifies the absence in this case of considerations which might support the exercise of the residual discretion.
Resentencing
Although I have concluded that the sentence imposed by the sentencing judge was manifestly inadequate, I would not depart from his Honour’s identification of the objective gravity of the respondent’s offending. And, save for the fact that I do not find it significant in the respondent’s favour that there was no evidence that he was the only corrupter or that the respondent did not disseminate the child abuse material, I would adopt his Honour’s identification of the circumstances which must be taken into account in sentencing the respondent.
In resentencing the respondent, the following provisions of the Crimes Act are relevant:
“16Interpretation
(1)In this Part, unless the contrary intention appears:
…
non-parole period, in relation to a sentence or sentences of imprisonment, means that part of the period of imprisonment for that sentence or those sentences during which the person is not to be released on parole, whether that part of the period is fixed or recommended by a court or fixed by operation of law.
19Cumulative, partly cumulative or concurrent sentences
…
(2)Where:
(a)a person is convicted of 2 or more federal offences at the same sitting; and
(b)the person is sentenced to imprisonment for more than one of the offences;
the court must, by order, direct when each sentence commences, but so that no sentence commences later than the end of the sentences the commencement of which has already been fixed or of the last to end of those sentences.
(3)Where:
(a)a person is convicted of a federal offence or offences, and a State or Territory offence or offences, at the same sitting; and
(b)the person is sentenced to imprisonment for more than one of the offences;
the court must, by order, direct when each federal sentence commences but so that:
(c)no federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences; and
(d)if a non-parole period applies in respect of any State or Territory sentences—the first federal sentence to commence after the end of that non-parole period commences immediately after the end of the period.
(4)For the purpose of fixing the commencement of a sentence under this section, a reference in this section to a sentence the commencement of which has already been fixed includes a reference to another sentence imposed at the same time as the first-mentioned sentence.
…
19AJ Court may only fix non-parole periods or make recognizance release orders for federal sentences of imprisonment
This Division does not authorise a court to fix a single non-parole period, or make a recognizance release order, in respect both of federal sentences of imprisonment and State or Territory sentences of imprisonment.”
In the present case, save that at least a 9-year sentence imposed in respect of count 8 was warranted for that offending alone, I agree with the sentencing judge that each of the other counts warranted the imposition of a term of imprisonment and I agree with the terms of imprisonment which he imposed. As I have indicated, I disagree with his making those sentences concurrent with the sentence for count 8. Yet, if all of those sentences were cumulated the overall sentence would infringe the principle of ‘totality’ discussed in Mill v The Queen (1988) 166 CLR 59 at 63. To take that course would be to impose a crushing sentence, not one which was in aggregate just and appropriate.36
The appellant’s argument seemed to assume that if this Court was persuaded that the sentence was manifestly inadequate, it could achieve the appropriate outcome by the simple expedient of increasing the sentence in respect of count 8. That assumption was wrong. I agree with the submission advanced by the appellant before the sentencing judge that using the Nagy approach in relation to the criminality involved in the remaining counts would not allow for a sentence of a severity appropriate in all the circumstances, because it would result in a manifestly excessive sentence on count 8. In my view the Nagy approach cannot be applied, and it is necessary that there be a degree of accumulation of the sentences which are imposed in relation to the remaining counts.
The desired result that sentences are imposed which are of a severity which is appropriate in all the circumstances is to be achieved by fixing the commencement date of each sentence in such a way as to achieve an effective aggregate head sentence which complies with the principle of totality.
I would achieve that result in the following way:(a)In order to avoid the possible difficulty discussed in R v Armstrong [2016] QCA 243 at [29] and the cases there cited37 – there having been no argument addressed to that issue – I would sentence first for the State offences. As to that:The sentences imposed by the sentencing judge for the State offences of possessing child exploitation material sentences were 15 months, 18 months, 2 years and 12 months respectively (State counts 1, 2, 3 and 4). I would impose the same sentences and would order that they run concurrently with each other.I would not alter the sentences imposed in respect of the two State summary charges.The date of commencement for the State sentences would be the date of sentencing before the sentencing judge, namely 23 November 2021.Pursuant to s 184(2) of Corrective Services Act 2006 (Qld), the respondent’s parole eligibility date for those offences would be the day after the day on which he has served half the period of imprisonment, namely the day after the day on which he has served 12 months imprisonment. The day on which he would have served 12 months imprisonment would be 23 November 2022. His parole eligibility date for the State offences would be 24 November 2022.(b)Sub-sections 19(3)(a) and (b) of the apply, with the result that the remaining sentences must be structured so as to comply with ss 19(3)(c) and (d). The first federal sentence must commence immediately after the end of the non-parole period. Having regard to the definition of that term in s 16(1) of the and the operation of s 184(2) of the just mentioned, the first federal sentence must commence on 24 November 2022.(c)The sentences imposed for the two counts of persistent sexual abuse of child outside Australia should be 9 years for count 8 and 6 years concurrent for count 21. Each of those sentences should commence on 24 November 2022.(d)The offending involved in relation to counts 10 and 12 involved the use of a carriage service to upload certain of the live shows involved in count 8 and for which the sentencing judge imposed sentences of 4 years and 5 years respectively. I would impose the same sentences but would direct the date of commencement of the sentences so that they run concurrently with the sentence imposed for count 8. Accordingly, the date of commencement of each of those sentences should also be 24 November 2022.(e)The sentence imposed for the sexual intercourse with child outside Australia count (count 24) involved separate serious offending against a different child. The sentencing judge imposed a sentence of 7 years. I would impose the same sentence but would direct the date of commencement of the sentence for that count so that it results in a 2-year cumulation to the 9-year sentence imposed for count 8. Accordingly, the date of commencement of that sentence should be 24 November 2026.(f)The offending involved in relation to count 25 was the use of a carriage service to upload the live show involved in count 24. The sentencing judge imposed a sentence of 2 years. I would impose the same sentence but would direct the date of commencement of the sentence for that count so that it runs concurrently with the sentence imposed for count 24. Accordingly, the date of commencement of that sentence should also be 24 November 2026.(g)The sentencing judge imposed a variety of sentences in relation to the counts of using a carriage service to solicit child pornography material (counts 1, 2, 4, 6, 9, 11, 13, 14, 17 and 19); using a carriage service to solicit child abuse material (counts 20, 22, 23, 26 and 28); and using a carriage service to transmit child pornography material (counts 5, 7, and 18). They may be considered together and although the sentences were not identical, I would direct the date of commencement of each sentence so that they run concurrently with each other but result in a further 6 months cumulation to the head sentence for the federal offences. The longest sentence was that of 5 years, imposed in respect of counts 11, 14, and 17. Accordingly, the date of commencement for all of the counts dealt with in this subparagraph should be 24 May 2029.(h)The sentencing judge imposed a sentence of 3 years for the Commonwealth offence of controlling child abuse material for use through a carriage service (count 29). I would impose the same sentence but would direct the date of commencement of the sentence so that it runs concurrently with the sentences referred to in the previous paragraph and results in no further cumulation to the head sentence for the federal offences. Accordingly, the date of commencement for count 29 should be 24 May 2029.(i)The sentencing judge imposed sentences of 12-months imprisonment in relation to the counts of using a carriage service to prepare or plan to engage in sexual activity with a person under 16 (count 27) and procuring a child to engage in sexual activity outside Australia (counts 15 and 16). I would impose the same sentences but would direct the date of commencement of each sentence so that they run concurrently with each other but result in a further 6 months cumulation to the head sentence for the federal offences. Accordingly, the date of commencement for all of the counts dealt with in this subparagraph should be 24 November 2033.(j)This results in an aggregate head sentence for the federal offences of 12 years commencing on 24 November 2022.
Conclusion
Count Sentence
State indictment
Count 1 15 months’ imprisonment to commence on 23 November 2021
Count 2 18 months’ imprisonment to commence on 23 November 2021
Count 3 2 years’ imprisonment to commence on 23 November 2021
Count 4 12 months’ imprisonment to commence on 23 November 2021
The imprisonment for State counts 1 to 4 is to be served concurrently.
State summary charges
Charges 1 and 2 Convicted and not further punished
Commonwealth indictment
Count 8 9 years’ imprisonment to commence on 24 November 2022
Count 21 6 years’ imprisonment to commence on 24 November 2022
Count 12 5 years’ imprisonment to commence on 24 November 2022
Count 10 4 years’ imprisonment to commence on 24 November 2022
Count 24 7 years’ imprisonment to commence on 24 November 2026
Count 25 2 years’ imprisonment to commence on 24 November 2026
Counts 11, 14 and 17 5 years’ imprisonment to commence on 24 May 2029
Count 9, 19, 20 and 28 4 years’ imprisonment to commence on 24 May 2029
Counts 1, 2, 4, 5, 6,7, 13, 22, 23 and 26 3 years’ imprisonment to commence on 24 May 2029
Count 18 2 years’ imprisonment to commence on 24 May 2029
Count 29 3 years’ imprisonment to commence on 24 May 2029
Counts 15, 16 and 27 12 months’ imprisonment to commence on 24 November 2033
A single non-parole period for the federal offences of 6½ years is fixed to commence on 24 November 2022.
DALTON JA: I agree with the orders proposed by Bond JA and with his reasons.
I would draw attention to two particular passages in CMB v Attorney-General (NSW)**.40 All the judges in that case commented on the use of the term “residual discretion”. French CJ and Gageler J said:
“The discretion is residual only in the sense that its exercise does not fall to be considered unless that threshold is met. Once the discretion is enlivened, it remains incumbent on the appellant in an appeal under s 5D to demonstrate that the discretion should be exercised.” – [33].
“The law reposes a wide discretion in the sentencing judge as to the determination of the appropriate sentence for the offender and the offence (61). Appeals against sentence, whether by the offender or the prosecution, require demonstration of error in one or more of the respects identified in House v The King (62). Where error of that kind is established in an appeal by the offender, it is the duty of the Court of Criminal Appeal to exercise the sentencing discretion afresh (63). Where error of that kind is established in an appeal by the prosecution, the Court of Criminal Appeal may in its discretion dismiss the appeal notwithstanding that the sentence is erroneously lenient (64). This is sometimes described as ‘the residual discretion’. As French CJ and Gageler J explain (65), the discretion is residual only in that its exercise does not fall to be considered unless House error is established.” – [54].
“68. Having formed the view that the sentence imposed was manifestly inadequate, it remains to determine whether this is an appropriate case in which to grant permission to appeal. The principles governing the exercise of the appellate court’s discretion to grant permission to appeal in a Crown appeal against sentence are well known and have been considered in a number of decisions of this Court.
In short, manifest inadequacy in the sentence imposed below does not, of itself, justify permission to appeal. The circumstances in which permission to appeal will be granted on a Crown appeal are often said to be confined to rare and exceptional cases.41 The rationale for confining permission to such cases is the concern with double jeopardy; that is, the concern not to unnecessarily subject a defendant to the distress and anxiety of being twice vexed as a result of facing resentencing by an appeal court.42
The rare and exceptional case is one where allowing the appeal is desirable in order to address an error of principle, to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected, or to establish and maintain adequate standards of sentence. It also extends to correcting a sentence which is so inadequate that it bespeaks error of principle, or would undermine public confidence in the administration of justice.43
The phrase ‘rare and exceptional’ does not direct attention to the number or proportion of Crown appeals in which the appellate court’s intervention might be appropriate, for these are matters which depend upon the sentencing practices of first instances judges, and the number and nature of the appeals brought by the Director. Rather, it requires a qualitative assessment. It directs attention to the nature of the error that is required to justify intervention. In this way, it is intended to distinguish the circumstances in which it might be appropriate to intervene to correct a manifestly inadequate sentence in a Crown appeal from the circumstances in which it might be appropriate to intervene to correct a manifestly excessive sentence in a defence appeal.
The line between a sentence which is ‘merely’ manifestly inadequate, and a sentence which is so far below the appropriate standard as to warrant a grant of permission in a Crown appeal is not a bright one. It involves questions of degree,44 and, in a case such as the present, requires a balancing of the public interest in maintaining appropriate sentencing standards against the hardship to a defendant associated with being twice vexed.45”46
Markarian v The Queen (2005) 228 CLR 357 at 371 [28], [2005] HCA 25; CMB v Attorney-General (NSW) (2015) 256 CLR 346, [2015] HCA 9 [33]. ↩
[2020] NSWCCA 23. ↩
[2012] VSCA 117. ↩
Baden v R [2020] NSWCCA 23 at [49] per Bell P. ↩
Baden v R [2020] NSWCCA 23 at [50] per Bell P. ↩
[2021] QCA 279. ↩
R v Nagy [2004] 1 Qd R 63. ↩
R v Kruezi [2020] QCA 222. ↩
CMB v Attorney General for the State of New South Wales (2015) 256 CLR 346 at [55] per Kiefel, Bell and Keane JJ. ↩
House v The King (1936) 55 CLR 499 at 504 to 505. ↩
CMB v Attorney General for the State of New South Wales at [34] per French CJ and Gageler J and at [54] to [56] per Kiefel, Bell and Keane JJ, citing R v Hernando (2002) 136 A Crim R 451 at 458 [12] per Heydon JA (Levine J agreeing at 464 [31], Carruthers A-J agreeing at 464 [32]); Cumberland v The Queen [2020] HCA 21 per Bell, Gageler and Nettle JJ at [33]. ↩
R
Schulz; Ex parte Director of Public Prosecutions
(1936) 55 CLR 499
(2015) 256 CLR 346
(1988) 166 CLR 59
(2005) 228 CLR 357
(1998) 194 CLR 610
(1974) 131 CLR 623
(1990) 169 CLR 525
(2010) 242 CLR 520
(2013) 249 CLR 600
(2010) 79 NSWLR 1
(1989) 168 CLR 227
(1994) 181 CLR 295
(2011) 244 CLR 462
(2011) 242 CLR 573
(2020) 94 ALJR 656
(2012) 244 CLR 638
(1982) 30 SASR 212
(2003) 87 SASR 168
(2011) 109 SASR 334
(2020) 352 FLR 170
(2020) 138 SASR 17
At the sentence hearing, counsel for the appellant relied upon the decisions of Baden v The Queen2 and Rivo v The Queen.3
In Baden the applicant committed offences, over a period of four years, of procuring two Filipino children to engage in sexual activity outside Australia. He committed an offence of engaging in the persistent sexual abuse of one of those children in a period of two months within that four year period, and an offence of engaging in sexual activity (other than sexual intercourse) with the other child (again within that four year period). He was also sentenced for two offences of the possession of child abuse material. He was sentenced to various terms, including a term of eight years imprisonment for the offence of persistent sexual abuse, which in aggregate resulted in a period of imprisonment of eleven years and four months, with an overall non-parole period of seven years and four months. Over that four year period, he paid to the victim’s mother about $26,000. When the offending commenced one girl was aged six and the other aged two. Like the present case, there was no indication in that case of the offender acting with involvement of others, save for the assistance of the victim’s mother. However in that case there was no evidence of any recording of any interaction between him and the children.
It is right to say that in Baden there were fewer offences than in the present case, but it must be acknowledged, at the same time, that the duration of the offending against those two children was longer. An important difference was that the offender in that case had not been completely cooperative in the investigation making what were described as palpably false statements to police which were inconsistent with any recognition of guilt and willingness to accept the seriousness of his offences.4 Similarly he had made a false statement to a psychologist who was assessing him for this proceeding. Further, that offender had a telling criminal history. He had been imprisoned for three sexual offences involving the penetration of a girl, who was his stepdaughter, over a period of at least three years from when she was aged 10. For that offending he had been sentenced to a term of four years with a non-parole period of two years. In the view of the sentencing judge, that previous offending disentitled him to leniency. The judge remarked that he had not demonstrated that he had learnt anything from his earlier offending and punishment for it to be said that he had no good prospects of rehabilitation. Those observations were endorsed in the judgment on appeal.5
The sentencing judge in the present case considered that Baden was “a somewhat more serious case than the present” and added that the offender’s previous sexual offending “made him a less viable candidate for a proportionately generous parole date”. The appellant’s argument criticises his Honour’s assessment of Baden that it was a more serious case than the present one. It is correct to say that the offending in Baden occurred over a much longer period, although it is also the fact that the present case had aspects of the offending which made it even more serious in some ways than that in Baden. Nevertheless it was open to the judge to assess Baden as a “somewhat more serious case than the present”, in that important distinguishing features of Baden’s case was that he had a serious criminal history, showed little remorse and provided limited cooperation and had apparently poor prospects of rehabilitation. In short, there were circumstances in the present case, as detailed by the sentencing judge, which warranted a degree of leniency.
In Rivo, the offender pleaded guilty to one count of procuring children to engage in sexual activity outside Australia and one count of causing child pornography to be transmitted to himself. Over a period of two years, he procured from adults in the Philippines live sex shows of children, and he directed the content of those shows and the actions of the children who were involved. He also viewed live child abuse material depicting acts of bestiality perpetrated on children who were aged six, seven and eight years. A total period of seven years imprisonment, with a non-parole period of five years, was not disturbed on appeal. In the present case, the sentencing judge distinguished Rivo because it did not involve Division 272 offences and with relevant maximum penalties of the order which applied in this case.
In R v Harrison; Ex parte Director of Public Prosecutions (Cth),6 the offender was sentenced in relation to an offence of persistent sexual abuse of a child outside Australia. In that case the offender travelled to the Philippines on a number of occasions and engaged in sexual activity with a 14 year old girl. There were other offences involving his communications with another Filipino girl and the receipt of pornographic images of her. At first instance, a sentence of six years and six months imprisonment, with a non-parole period of two years and six months, was imposed. This court allowed an appeal by the Director and resentenced the respondent to an effective overall sentence of eight years imprisonment with a non-parole period of five years. At the time of the sentence hearing in the present case, Harrison had been sentenced at first instance but not resentenced on appeal. Again, there are differences between the offending in that case and the offending in the present case. Accepting that the offending in the present case could be described as yet more serious than that in Harrison, it does not follow that the outcome in the present case was outside what could reasonably have been imposed.
As I have said, the outcome here reflected a degree of leniency. A less favourable outcome for the prisoner could have been ordered. However I am not satisfied that this is a case where there was such leniency that the sentence is manifestly inadequate, so that a prosecution appeal against sentence should be allowed. I would order that the appeal be dismissed.
BOND JA: On 23 November 2021, the respondent was convicted in the Supreme Court of Queensland on his own plea of guilty and sentenced in respect of –(a)28 counts of various types of child sex offending against the Criminal Code Act 1995 (Cth) (Criminal Code (Cth));(b)four counts of offending against the Criminal Code Act 1899 (Qld) (Criminal Code (Qld)) by possessing child exploitation material; and(c)two summary charges of offending against the Health (Drugs and Poisons) Regulation 1996 (Qld) by unlawful possession of restricted drugs.
The respondent was sentenced to a total effective sentence of 9 years’ imprisonment with a non-parole period of 4½ years. A global sentence of 9 years’ imprisonment was attached to count 8 of the Commonwealth offending, being persistent sexual abuse of a child outside Australia, and lesser concurrent terms of imprisonment were attached to the remaining counts. The respondent was convicted and not further punished in relation to the two summary charges.
The Commonwealth Director of Public Prosecutions appeals against the sentence on the ground that the individual sentences, the total effective sentence and the non-parole period were manifestly inadequate.
For reasons which follow, the appeal should succeed and this Court should re-sentence the respondent to a sentence the effect of which would be to impose a total effective head sentence of 13 years’ imprisonment with a non-parole period of 7½ years.
On 22 April 2020, police executed a search warrant at the respondent’s residence in Mount Isa. In addition to his Facebook Messenger accounts, they found that he controlled a ‘Mega.nz’ file storage account on which he stored child abuse material. This conduct involved the respondent committing the Commonwealth offence of controlling child abuse material for use through a carriage service (count 29).
During the execution of the search warrant police found further child exploitation material stored in the respondent’s computer tower, his hard drive and in two mobile phones. Possession of that material meant that the respondent had committed the State offences of possessing child exploitation material (State counts 1, 2, 3 and 4). Police also found restricted drugs which resulted in the two summary charges.
The following table provides further details of the counts discussed in the foregoing paragraphs and also identifies the applicable maximum prescribed penalty and the sentence which was imposed for each count:
I conclude that the appellant has discharged its onus in relation to the residual discretion.
This results in an aggregate effective head sentence of 13 years commencing on 23 November 2021.
Pursuant to s 19AB, the Court must fix a single non-parole period for the federal offences. Having regard to s 19AJ of the Crimes Act, the Court is not authorised to fix a single non-parole period in respect both of federal sentences of imprisonment and State sentences of imprisonment. Further, a non-parole period for one or more federal offences cannot be fixed to commence earlier than the commencement date of the head sentence(s).39 Having regard to the relevant considerations and applying the principles identified in Harrison, I would fix the non-parole period for the federal offences at 6½ years, commencing on the commencement date of the first sentence imposed for a federal offence, namely 24 November 2022. Fixing that non-parole period for the federal offences will give rise to an aggregate effective non-parole period of 7½ years.
Argument focussed on the adequacy of the aggregate sentence, rather than on the adequacy of the particular sentences imposed for each count. ↩
R v Harrison; Ex parte Director of Public Prosecutions (Cth) (2021) 294 A Crim R 1 at [57] to [60]. ↩
Harrison at [51]. ↩
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610. ↩
Pearce [45]. ↩
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59. ↩
Mill (63). ↩
Harrison at [40] and [54]. ↩
Harrison at [55] to [56]. ↩
Power v The Queen [1974] HCA 26; (1974) 131 CLR 623. ↩
Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525. ↩
Power (629). ↩
Bugmy (531). ↩
Lam v The Queen [2014] WASCA 114; (2014) 241 A Crim R 562 [56]-[57]. See also Hili v The Queen (2010) 242 CLR 520 [41]. ↩
Harrison at [64]. ↩
Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600 [33]. ↩
Munda v Western Australia [39]. ↩
DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 [304], approved in Hili [54]. ↩
Hili [60]. ↩
Baden v R per Bell P at [41] to [44]. ↩
CMB v Attorney General for the State of New South Wales at [57] per Kiefel, Bell and Keane JJ, citing the statement by Deane and McHugh JJ in Malvaso v The Queen (1989) 168 CLR 227 at 234-235, which was adopted in the joint reasons in Everett v The Queen (1994) 181 CLR 295 at 299-300 per Brennan, Deane, Dawson and Gaudron JJ. ↩
CMB v Attorney General for the State of New South Wales at [66] per Kiefel, Bell and Keane JJ. ↩
Green v The Queen (2011) 244 CLR 462 at [2] and [43]; CMB v Attorney General for the State of New South Wales at [55] and [69] per Kiefel, Bell and Keane JJ.; Cumberland v The Queen [2020] HCA 21 per Bell, Gageler and Nettle JJ at [6]. ↩
Harrison at [91]. ↩
It is not necessary to address the provisions in the Crimes Act which create a presumption in favour of cumulation for child sex offences because they apply to such offences only if committed on or after 23 June 2020: Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth), s 3 and Sch 10, item 3. ↩
Namely that the power to order accumulated imprisonment under the Penalties and Sentences Act 1992 (Qld) may not be sufficient to order a sentence for a State offence to commence on the completion of a sentence for a federal offence. ↩
Although here, and subsequently, I refer to cumulation on "the head sentence for the federal sentences”, I am conscious of the fact that the structure of the sentences I will impose is such that the federal sentences will be cumulative upon the necessity that the respondent must serve 12 months imprisonment in respect of the State sentences. I have borne that consideration in mind in adjusting the extent of cumulation of the federal sentences inter se and am satisfied that the overall effect of the sentences imposed in respect of both state and federal sentences is appropriate. ↩
R v TW (No 2) [2014] ACTCA 37. ↩
(2015) 256 CLR 346. ↩
Everett v The Queen (1994) 181 CLR 295 at 299-300 (Brennan, Deane, Dawson & Gaudron JJ); Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at [8]-[21] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Green v The Queen; Quinn v The Queen (2011) 244 CLR 462 at [1]-[2] (French CJ, Crennan and Kiefel JJ); Cumberland v The Queen (2020) 94 ALJR 656 at [4]-[6], [33] (Bell, Gageler and Nettle JJ). ↩
Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638 at [14] (French CJ, Gummow, Hayne, Kiefel and Bell JJ). ↩
R v Osenkowski (1982) 30 SASR 212 at 212-213 (King CJ); R v Nemer (2003) 87 SASR 168 at [23]‑[27] (Doyle CJ); R v Harkin (2011) 109 SASR 334 at [19] (Gray & Sulan JJ), [77] (White J); R v Buttigieg (2020) 352 FLR 170; [2020] SASCFC 38 at [39] (Lovell J, Kourakis CJ and Nicholson J agreeing); R v McIntyre (2020) 138 SASR 17 at [90]-[92] (Doyle J, Stanley and Hughes JJ agreeing); R v Jacques [2021] SASCA 94 at [29] (Kourakis CJ, Lovell and Bleby JJA). ↩
R v Nemer (2003) 87 SASR 168 at [27] (Doyle CJ). ↩
R v Harkin (2011) 109 SASR 334 at [19] (Gray & Sulan JJ). ↩
R v Yaroslavceff [2022] SASCA 123, (original footnotes included but re-numbered). Note that unlike South Australia, there is no requirement for the Attorney to seek leave (or permission) to appeal a sentence – s 669A Criminal Code (Qld). ↩