R v TW [2011] ACTCA 25

Court of Appeal (ACT)|2011-11-17|Before: Refshauge J, Penfold J, Lander JJ

[2011] ACTCA 25 (17 November 2011)

APPEAL AND NEW TRIAL - general principles - in general and right of appeal - Crown appeal against sentence - manifest inadequacy - no material on which manifest inadequacy to be determined.

APPEAL AND NEW TRIAL - general principles - in general and right of appeal - Crown appeal against sentence - principle of totality - application prior to determination of concurrency and cumulation of sentences - error manifested - appeal upheld.

R v Eisenach [2011] ACTCA 2

House v The King [1936] HCA 40; (1936) 55 CLR 499

Fisher v The Queen (1989) 40 A Crim R 442

R v Sutton (ACTSC, Refshauge J, SCC 309 of 2007, 23 October 2009, unreported)

R v Fowler [2007] ACTCA 4

R v Wheatley [2007] ACTCA 15

The Queen v Thorn [2010] ACTCA 10

Mill v The Queen (1988) 166 CLR 59

R v Wheeler [2000] NSWCCA 34

R v Campbell [2010] ACTCA 20

Rama v The Queen [2006] ACTCA 25

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

R v Holliday (ACTSC, Refshauge J, SCC 73, 341 of 2009, 24 November 2010, unreported)

Hitchen v The Queen [2010] NSWCCA 77

R v TC (ACTSC, Penfold J, SCC 87 of 2010, 28 March 2011, unreported)

R v Thorn [2010] ACTCA 10

Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Court of Appeal of the Australian Capital Territory

IN THE SUPREME COURT OF THE ) No. ACTCA 39 of 2010

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

2. The sentence imposed by the Supreme Court be set aside.

3. In lieu, the respondent be sentenced as follows:

(i) committing an act of indecency on child B, imprisonment for one year four months from 18 March 2010 to 17 July 2011;

(ii) committing an act of indecency on child C, imprisonment for one year four months from 18 December 2010 to 17 April 2012;

(iii) committing an act of indecency on child C, imprisonment for one year four months from 18 September 2011 to 17 January 2013;

(iv) using child A for the production of child pornography, imprisonment for two years two months from 18 June 2012 to 17 August 2014;

(v) using child B for the production of child pornography, imprisonment for two years two months from 18 March 2010 to 17 May 2012;

(vi) using child C for the production of child pornography, imprisonment for two years two months from 18 December 2010 to 17 February 2013;

(vii) using child C for the production of child pornography, imprisonment for two years two months from 18 September 2011 to 17 November 2013;

(viii) using child D for the production of child pornography, imprisonment for two years two months from 18 September 2011 to 17 November 2013;

(ix) possession child pornography, imprisonment for one year four months from 18 November 2013 to 17 March 2015;

(x) possessing child pornography, imprisonment for one year nine months from 18 June 2014 to 17 March 2016;

(xi) a single non-parole period of four years be set for these offences from 18 March 2010 to 17 March 2014;

(xii) using a carriage service to access child pornography, imprisonment for one year four months from 18 October 2015 to 17 February 2017;

(xiii) using a carriage service to distribute child pornography, imprisonment for two years two months from 18 August 2016 to 17 October 2018;

(xiv) using a carriage service to transmit child pornography, imprisonment for two years two months from 18 August 2017 to 17 October 2019;

(xv) a single non-parole period of one year and six months be set for the latter three offences from 18 March 2014 to 17 September 2015.

IN THE SUPREME COURT OF THE ) No. ACTCA 39 of 2010

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

1. On 27 August 2010, Nield AJ sentenced the respondent, TW, to a total term of imprisonment for seven years with a total non-parole period of four years and six months on his plea of guilty to three counts of committing an act of indecency upon a child, five counts of using a child for the production of child pornography, two counts of possessing child pornography, a count of using a carriage service to access child pornography, a count of using a carriage service to distribute child pornography and a count of using a carriage service to transmit child pornography.

2. On 24 September 2010, the Director of Public Prosecutions filed a Notice of Appeal asserting that the sentences were manifestly inadequate and that his Honour erred in making certain of the sentences wholly concurrent.

3. While s 37E of the Supreme Court Act 1933 (ACT) permits an appeal to the Court of Appeal from any order of the Court, the courts have articulated an approach to Crown appeals against sentence which recognises that they constitute an anomaly in the criminal justice system and so should be instituted sparingly. They are, accordingly, subject to particular principles set out in a number of cases.

4. The principles have been helpfully set out by Charles JA (with whom Winneke P and Hayne JA, as his Honour then was, agreed) in R v Clarke [1996] VICSC 30; [1996] 2 VR 520 (at 522), after a careful consideration and analysis of the cases. I summarise those principles as follows:

(i) An appeal by the Crown should be brought only in the rare and exceptional case to establish some point of principle.

(ii) Occasions may arise for the bringing of a Crown appeal: (a) when a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute an error in principle; (b) where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing a convicted person; (c) to enable the courts to establish and maintain adequate standards of punishment for crime; (d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected; (e) to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience; and (f) to ensure, as far as the subject matter permits, that there will be uniformity of sentencing.

(iii) When, in response to a Crown appeal, the court decides to re-sentence an offender it ordinarily gives recognition to the element of double jeopardy involved by imposing a sentence that is somewhat lesser than the sentence it considers should have been imposed at first instance.

(iv) The appellate court has an over-riding discretion which may lead it to decline to intervene even if it concludes that error has been shown.

5. These principles were adopted by this Court in R v Eisenach [2011] ACTCA 2 (at [8] to [10]).

6. In addition, the court has to approach the appeal in accordance with principles applicable to all appeals against sentence, namely:

(v) The court is not hearing the matter anew and is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive. The court only interferes if there is an error of fact or law by the sentencing judge of the kind referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 (at 504-5), or where there is such manifest inadequacy or excess in sentence as to indicate error.

7. It is in accordance with these principles that this appeal is to be decided.

8. All of the offences are serious, involving the abuse of young children, especially directly by TW.

9. The offence of committing an act of indecency on a child under the age of ten years is prohibited by s 61(1) of the Crimes Act 1900 (ACT), attracting a maximum penalty of 12 years imprisonment.

10. Using a child for the production of child pornography, where the child is under

12 years old is a crime under s 64(1) of the Crimes Act for which the maximum penalty is 1,500 penalty units (a fine of $165,000: s 133 of the Legislation Act 2001 (ACT)) or imprisonment for 15 years or both.

11. The intentional possession of child pornography, contrary to s 65(1) of the Crimes Act is punishable by a maximum fine of 500 penalty units (at the time of the offence, a fine of $55,000) or imprisonment for five years or both.

12. The other crimes are all laid under s 474.19 of the Criminal Code Act 1995 (Cth) as follows:

(a) using a carriage service to access child pornography: s 474.19(1)(a)(i);

(b) using a carriage service to transmit child pornography: s 474.19(1)(a)(iii); and

13. In each case the maximum penalty is imprisonment for ten years.

14. It is not necessary to detail the facts of each offence extensively, but it is relevant to describe broadly the nature of them.

15. The offences were discovered, when, after receiving a report that child pornography had been uploaded onto a commercial website, members of the Australian Federal Police executed a search warrant at the home of TW and seized computer material which showed the commission of the offences.

16. The first charge of committing an act of indecency upon a child involved him causing a male child aged about one year to hold TW's erect penis. The male child was his one year old son. In addition, he took photographs of this activity and of his son naked and a video of his son playing with TW's exposed erect penis. This constituted one of the charges of using a child for the production of child pornography.

17. The other two of those charges involved him on two occasions taking advantage of an invitation to some friends, the parents of two children, to outings, once at his home and once in a Canberra public park. On the first occasion, he took photographs of the genitalia of the five year old daughter of his friends, which was the second offence of using a child to produce child pornography. In doing so, for one picture, he used his right thumb to pull her vagina open, thus committing a further act of indecency on the child.

18. The second occasion involved TW playing with the same girl and her brother, aged seven, and suggesting to them that he photograph their "privacies", which he then did, thereby committing two further offences of using each child to produce child pornography. In one case, he placed his right pointer finger on the girl's vagina, which constituted the third offence of committing an act of indecency on a child.

19. TW sent the photos he had first taken of the young girl to two men he had met on the Internet site. This constituted the charge of using a carriage service to transmit child pornography.

20. TW also took three photographs of the nine year old daughter of another of his friends, showing her exposed vagina as she is sitting on the floor with her legs apart, being the fifth count of using a child to produce child pornography.

21. Those offences are ones which the courts view very seriously. As Maxwell J said in Fisher v The Queen (1989) 40 A Crim R 442 (at 446):

... the community looks to the courts to deal with persons convicted of serious sexual assaults, or abuses upon young children, in such a way as to provide some measure of protection for young persons, and some measure of deterrence to those persons who contemplate similar activities.

22. The images he had uploaded on to the Internet site which had brought him to the attention of police, and which was one of the charges of using a carriage service to distribute child pornography, involved eight images of a girl of between six and ten years naked in and after taking a shower and some of which showed her genital area. It is not clear whether he took the images or not.

23. The charge of using a carriage service to access child pornography related to TW accessing child pornography from the Internet and then sharing that pornographic material with other people on the Internet.

24. The charges of intentionally possessing child pornography followed police inspection of his computer. The first charge involved him possessing a total of 23,549 images and 1,013 videos on 19 January 2010. These images ranged in seriousness from erotic posing with no sexual activity right through to images depicting sadism and bestiality. The images were grouped by police into categories based on the scale created by the UK Court of Appeal in R v Oliver [2003] 1 Cr App R 28 (at 467). The categories set out by their Lordships were, from the least serious to the most serious:

(1) images depicting erotic posing with no sexual activity;

(2) sexual activity between children, or solo masturbation by a child;

(3) non-penetrative sexual activity between adults and children;

(4) penetrative sexual activity between children and adults;

(5) sadism or bestiality.

25. These categories are a useful way to approach the assessment of the seriousness of the offence by reference to the nature of the images involved. They are regularly used in this and other jurisdictions for this purpose. See R v Sutton (ACTSC, Refshauge J, SCC 309 of 2007, 23 October 2009, unreported).

26. A significant majority of the images were in category 1, but there were still likely to be over 1,000 images in categories 4 and 5. A majority of the videos were in category 4, with about 5% in category 5.

27. The second charge was more serious in that it involved intentional possession of child pornography between 18 February 2010 and 13 March 2010 when TW was then on bail for the other offences. He apparently returned home after being granted bail and soon after used the computer, in breach of his bail conditions, and his computer was found to contain a total of 828 images, mostly in category 1 and with none in category 5 and 32 videos, in categories 2, 3 and 4, though none in categories 1 or 5.

28. The learned sentencing Judge saw a selection of this material. His description was as follows:

What they showed was the appalling abuse of children. They were debasing and disgusting. I fail to understand why anyone would possess them, let alone produce them. I consider that those who possess and produce such material to be depraved.

29. This court has noted before in R v Fowler [2007] ACTCA 4 (at [5]) and R v Wheatley [2007] ACTCA 15 (at [8]), the rationale for severe penalties for offences of this kind. Crispin P (with whom Gray and North JJ agreed) said in R v Wheatley (at [8]):

... if there were no demand for images of this kind there would not be the same motivation to produce them. Furthermore, even when images of this kind are not produced by physical coercion or actual violence, the children or young people in question may nonetheless be exploited by emotional or financial pressures of various kinds and, in a very real sense, are victims of the offences committed upon them. A significant sentence of imprisonment may therefore be appropriate for offences of this kind.

30. TW had an unremarkable home life and upbringing, although he was somewhat bullied at school because of his spectacles and the braces on his teeth. He had a stable and supportive family and enjoyed good relations with his parents and sister and continues to do so. His parents have supported him through the criminal proceedings.

31. He married in 1994 and moved from his home city of Perth to Canberra in 1996 to take up employment opportunities. The couple have one child, a son, but, as a result of these offences, have separated and TW does not expect to have any contact with his son, certainly for many years, if at all.

32. He was initially employed by a bank and then moved into systems administration with a government department, but was suspended without pay upon being charged and has now resigned.

34. He has been assessed by a psychiatrist as meeting the criteria for paedophilia. His paedophilic urges were described as compulsive and egosyntonic (that is that he does not see them as undesirable, bad or disturbed). The psychiatrist opined that he has poor self-esteem and is motivated by winning the approval of others. He has been a social outsider with considerable social anxiety. He is obsessive to perfectionistic and controlled and orderly. His personality inadequacies have led him to his compulsive involvement with paedophilic sex with both real children and pornographic images.

35. The psychiatrist stated that very lengthy psychotherapy with skilled mental health professionals would be required to address his personality impairment and paedophilia, though some medication to suppress his sexual arousal may be an option. He further stated, however, that his mental impairments were likely to be present indefinitely, though he could develop appropriate control mechanisms. There is, he stated, a risk, however, that even with treatment he may act on his paedophilic tendencies.

36. A report from a psychologist was also tendered on sentencing. It was more optimistic about the likelihood of rehabilitation, describing the prognosis as excellent.

37. It is important to note that TW co-operated with the authorities and provided information that led to the arrest of a male in the United Kingdom who was abusing his daughter and a male in Canada who was also abusing his daughter. He also provided information that may have led to the detection of a paedophile in Adelaide.

38. Three victim impact statements were tendered. They disclosed the harm that had been done to the children, even at the young age of five. The pain suffered by his estranged wife and the difficult future for his son was also disclosed with painful clarity. They constituted distressing and sobering reading.

39. It is not necessary to set out the details of the sentence. Nield AJ approached the sentencing in the following way.

40. He determined that the discount under s 35 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) that was appropriate for TW's plea of guilty to each of the charges was 20%. He then determined that a discount under s 36 of that Act was appropriate for TW's assistance in detecting other offenders and set it at 10%.

41. Next, his Honour determined the sentence for the various offences. That there was a second or subsequent offence of the same type did not necessarily require an increased sentence. See The Queen v Thorn [2010] ACTCA 10 (at [35]).

42. For the charges of committing an act of indecency on a child, he determined the appropriate sentence on each charge to be two years imprisonment, reduced by 30% for the above discounts, which for ease of calculation was set at eight months, to one year and four months.

43. For each of the charges of using a child to produce child pornography, he determined the sentence to be three years imprisonment, reduced by the same discounts of 30%, which for ease of calculation was set at ten months, to two years and two months.

44. For the first charge of possessing child pornography, he determined the sentence to be two years imprisonment, reduced by the discounts of 30%, to one year and four months. For the second charge, he determined the sentence to be two years and six months, reduced by the discounts of 30%, to one year and nine months.

45. For the charge of using a carriage service to access child pornography, he determined the sentence to be two years imprisonment, reduced by the discounts of 30%, to one year and four months. For the other misuse of carriage service charges, he determined the sentence to be three years imprisonment, on each charge, reduced by the discounts of 30%, to two years and two months.

46. His Honour then indicated that he considered that the total period of imprisonment appropriate to the criminality to be seven years with a non-parole period of four years and six months and a parole period of two years and six months.

47. His Honour then proceeded to set the sentences concurrently or partly accumulated to achieve that total sentence. This was also, of course, in part to meet the obligation to apply the principle of totality set out in Mill v The Queen (1988) 166 CLR 59. The first sentence commenced on 18 March 2010 to take into account the 166 days that he had then spent in custody: s 63 of the Sentencing Act. After accumulation and concurrency, the total period of imprisonment was to 17 March 2017, that is for seven years. A total non-parole period of four years and six months from 18 March 2010 to 17 September 2014 was set.

48. The Crown first challenged the sentences by asserting that the partial accumulation and concurrency had, while appropriate to comply with the obligation to consider the totality of the punishment and to avoid a crushing sentence, led to manifestly inadequate sentences.

49. Thus, in the written submissions was a mathematical analysis of what the interrelationship of the sentences had meant in relation to individual sentences. For example, it was submitted that the effect of the sentencing exercise was to render the sentences for committing acts of indecency effectively wholly concurrent on the sentences for using the subject child to produce child pornography.

50. Some concurrency was obviously appropriate because of the overlap of the elements and criminality of the two offences as noted by the majority in Pearce v The Queen (1998) 194 CLR 610 (at 623). Nevertheless, it was submitted that it was necessary to impose some penalty on each offence despite the totality principle and it was submitted, in the words of Sully J (with whom Carruthers AJ agreed) in R v Wheeler [2000] NSWCCA 34 (at 37), that:

... a person who commits a deliberate series of discrete offences ... must not be left with the idea that by intoning references to the principle of totality as though it were some magic mantra, he can escape effective punishment for the offences which follows successively one upon another.

51. The seriousness of the offences, the breach of trust, which his Honour had identified, and the impact on the victims and their families, all led, in the Crown's submission, to the need for a strongly severe and deterrent sentence. There can be no doubt that this must be so. The Crown further referred to the very large number of images and videos of child pornography found on TW's computer, aggravated in respect of the second of those offences by being committed while on bail, which made the sentences a very serious version of the offences calling for condign punishment.

52. Reference was made to two particular cases where more severe sentences had been imposed. Such references can be helpful but what is really required, as noted in R v Campbell [2010] ACTCA 20 (at [32] to [35]), is to look at the standards of sentencing for the offences not merely whether it is more lenient than some other sentence which merely forms part of that range. This is also statutorily required of the sentencer at first instance by s 33(1)(z) of the Sentencing Act. No such material was presented by the appellant.

53. The respondent, on the other hand, submitted that the Crown had not established a proper basis for a Crown appeal because no basis had been established for concluding that the sentences were so manifestly inadequate or inconsistent with sentencing standards as to permit appellant interference.

54. The respondent submitted that the Crown was inviting this Court to substitute its own views for those of the sentencing Judge which, as noted above (at [6]), is not the function of an appeal court.

55. The respondent further submitted that the sentences were not manifestly excessive but did not show how this was so with respect to current sentencing standards. He did submit, however, that Nield AJ was correct to give substantial weight to the mitigating circumstances of the early plea of guilty and the real and effective assistance given to the authorities.

56. There is no doubt that the offences were individually and collectively serious. Neither party submitted that Nield AJ had not correctly identified all of the relevant factors that led to that conclusion. These have been largely referred to above.

57. The difficulty for the Crown's submission is that, in the process of instinctive synthesis which is the approach to sentencing required by the High Court, it cannot be permitted to make the exercise a mathematical one by trying to quantify each part of the sentence or, as in this case, the component sentences apart from the whole to make out the argument. I do not mean that the component sentences cannot be evaluated in the context of the obligation articulated in Pearce v The Queen to impose proper sentences on each of the multiple offences, but then to analyse the sentences after the application of the principle of totality has been applied is impermissible.

58. It is clear that a severe total sentence was called for but it is also clear that there were significant mitigating circumstances which included the long period of good character given that these, notwithstanding disgraceful, serious and disgusting offences, are the first offences committed by a middle-aged man, as well as his early plea of guilty and his assistance to the authorities. His willingness to accept treatment is also relevant. These factors rightly mitigated the severity of the sentence to be imposed.

59. Neither party to the appeal really provided an insight into the current sentencing standards by which the court could judge the sentence, what has been called "the collective wisdom of the judges": per Hunt CJ at CL in R v Ellis (1993) 68 A Crim R 449 (at 460).

60. In R v Campbell, this court set out in summary the task faced by an appellant seeking to show that a sentence is manifestly inadequate, or excessive. The court said (at [32] to [35]):

In Hawkins v Hawkins (2009) 3 ACTLR 210, Refshauge J said (at 219 [46] to [47]):

46. The determination of whether a sentence is manifestly excessive (or inadequate) is not an easy task. It must, however, be approached rationally and, as Gleeson CJ and Hayne J said in Dinsdale v The Queen, quoted above (at [42]), must be accompanied by reasons. See R v Holder [1983] 3 NSWLR 245 per Street CJ (at 254).

47. Counsel is, therefore, obliged not merely to assert the alleged manifest excess (or inadequacy) of the sentence but must also address the basis of the assertion by identifying the relevant matters which go to show how it is said the court can - and should - draw the relevant conclusion.

See also R v Thorn [2010] ACTCA 10 (at [33]).

As was said by Hunt CJ at CL in R v Ellis (1993) 68 A Crim R 449 (at 461):

What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range.

It is helpful also to refer to what King CJ (with whom White and Mohr JJ agreed) said in R v Morse (1979) 23 SASR 98 (at 99):

To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.

The same can apply, mutatis mutandis, to claims that a sentence is manifestly inadequate.

61. This can be achieved, for example, where a court of criminal appeal has set out a range or tariff for a particular offence or where, as in Rama v The Queen [2006] ACTCA 25, a conspectus of comparable sentences, identifying relevant characteristics, is produced to the court. Neither party proceeded in either way in this case, making it difficult for the court to discharge the obligation of assessing the sentence against the relevant sentencing standards. In that sense, the appellant has not produced the necessary material from which the court can determine whether the appeal should be upheld or not.

62. It does appear, however, that his Honour did approach the task of sentencing in a way that is contrary to principle. His Honour determined the total sentence he proposed to impose before determining the question of cumulation or concurrency. This is not the approach that has been mandated by the High Court. In Mill v The Queen, the plurality said (at 63-4):

The totality principle is a recognised principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed, (1979), pp 56-57, as follows (omitting references):

The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong'; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'.

See also Ruby, Sentencing, 3rd ed (1987), pp 38-41. Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.

63. Contrary to these principles, his Honour determined the totality of the sentence before considering cumulation or concurrency.

64. Thus, in accordance with the principles enunciated in Pearce v The Queen, there is a basis for some concurrency because of overlapping elements in the offences in, for example, the charges of using a child to produce child pornography and the acts of indecency which were committed during the production of that material, and, where appropriate, total concurrency if the principle of totality requires it.

65. It is, however, difficult to see a principled basis in making the sentences for possession of child pornography, quite unrelated to the other charges, concurrent with the sentence on those other charges. Some concurrency may be required to meet the needs of totality, but that needs to be tested. If the sentences on those charges were each accumulated, that would add a total of three years and one month to the total sentence.

66. Since one of those offences was an offence committed after TW had been charged with the earlier offence and while he was on bail, full accumulation would be appropriate, though his Honour did impose a longer sentence for that offence, no doubt in part to account for that.

67. This could result in a total sentence of ten years and one month. In my view, that is not a manifestly excessive sentence for the criminality involved. The principle of totality would not have required such a sentence to be reduced. Nevertheless, in the light of the accepted principle articulated by Kirby J in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 (at 341; [62]), of moderating a sentence imposed after a successful Crown appeal against sentence to take into account what is possibly somewhat inaccurately called a principle of double jeopardy (see R v Raggett (1990) 101 FLR 323 (at 325)), I would reduce that period by making the two sentences concurrent as to nine months.

68. Accordingly, I would uphold the appeal, set aside the sentences imposed on the two counts of possessing child pornography (CC10/1011 and CC10/2599) and instead impose on the first such count a sentence of one year and four months to commence on 18 November 2013 and end on 17 March 2015 and on the second such count a sentence of one year and nine months to commence on 18 June 2014 and end on 17 March 2016. I would set a non-parole period of four years to commence on 18 March 2010 and end on 17 March 2014.

69. This would require an adjustment of the date of effect of the sentences imposed on the Commonwealth offences. For those offences, I would adjust the dates as follows: (11) using a carriage service to access child pornography, imprisonment for one year four months from 18 October 2015 to 17 February 2017, (12) using a carriage service to distribute child pornography, imprisonment for two years two months from 18 August 2016 to 17 October 2018 and (13) using a carriage service to transmit child pornography, imprisonment for two years two months from 18 August 2017 to 17 October 2019. I would fix the non-parole period of one year and six months from 18 March 2014 to 17 September 2015.

70. That would result in a total sentence of nine years and seven months with a total non-parole period of five years and six months.

I certify that the preceding paragraphs numbered one (1) to seventy (70) are a true copy of the Reasons for Judgment herein of his Honour Justice Refshauge.

IN THE SUPREME COURT OF THE ) No. ACTCA 39 of 2010

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

71. I adopt Refshauge J's description of the facts of this case, his comments about Crown appeals against sentences, and his narrative description of Nield AJ's approach to sentencing and the sentences imposed.

(a) five offences of using a child for the production of child pornography (production offences);

(b) three offences of an act of indecency on a child (indecency offences);

(c) one offence of using a carriage service to distribute child pornography (a distribution offence);

(d) one offence of using a carriage service to transmit child pornography (a transmission offence);

(e) one offence of using a carriage service to access child pornography (an access offence); and

(f) two offences of possessing child pornography (possession offences).

73. The following table shows the sentencing outcomes in this case organised chronologically by reference to the dates of commission of the offences (the shading identifies the eight separate occasions on which offences were committed).

74. The grounds of the Crown appeal were specified to be that the sentences imposed were manifestly inadequate, and that his Honour erred in making certain of the sentences wholly concurrent. These are, of course, quite separate grounds of appeal, in that a claim of manifest inadequacy implies that no specific error can be identified but that error can be inferred from the obvious inadequacy of the sentence, while the second ground alleges specific error in relation to concurrency.

75. Counsel for the appellant in his oral submissions said that the two grounds were "in effect, one", and conducted the appeal accordingly (although without explicitly committing himself to the exact nature of that one ground).

76. It is apparent from the table at [73] above, and from the following discussion, that the choices Nield AJ made about concurrency do not reveal any particular principle or pattern.

77. First, each sentence for an indecency offence against a child runs concurrently with a sentence for a production offence against that child, so that in each case the indecency offence adds nothing to the total sentence. Curiously, however, sentences for two of the indecency offences (sentences 5 and 8 in the table at [73]) committed on different occasions are concurrent not with the sentences for production offences (sentences 6, 9 and 10) committed on the same occasion but with the sentences for production offences committed on the other occasion.

78. Secondly, the two sentences (sentences 12 and 13) for possession offences run concurrently, so that the earlier offence adds nothing to the total sentence.

79. Thirdly, the sentence for the access offence (sentence 11) is to run so that it has on its face no impact on the length of the total sentence (although I note the possibility that Nield AJ deferred the commencement of the distribution sentence (sentence 2) because of the impact of the sentence for the access offence, such that the existence of sentence 11 did in fact extended the overall sentence length).

80. Finally, some sentences are accumulated quite substantially - for instance, the last sentence to commence (sentence 7, for the transmission offence) is accumulated so as to add an extra 12 months to the total sentence, while the last two sentences together (sentences 2 and 7, for the transmission and distribution offences) add 30 months to the total sentence.

81. As noted above, rather than seek to identify specific errors in his Honour's approach to concurrency and accumulation, counsel for the appellant in fact argued one ground of appeal. That ground appeared to be manifest inadequacy, but at several points counsel lapsed into arguing about aspects of the sentencing process rather than about the outcome of that process, apparently forgetting that while specific errors may be identified by an examination of the sentencing process, manifest inadequacy refers to the situation in which the outcome of that process is so clearly wrong that some kind of error in the process can be inferred (although the nature of that error remains unidentifiable).

82. The matters raised in this appeal can be addressed in three parts, being;

(a) the specific error claimed in one of the appeal grounds (relating to concurrency);

(b) the specific error identified by Refshauge J at [62] and [63] above relating to totality; and

83. Given the application of the totality principle discussed below, it is not in my view possible to say in the abstract that any aspect of Nield AJ's approach to concurrency and accumulation was necessarily erroneous. Even more so than for most other claims of specific error, a claim that the structuring of a sentence is erroneous needs to be made out by careful argument, since there is no single correct approach to the structuring of multiple sentences, and there may be a variety of acceptable ways in which to implement the totality principle in a particular sentencing exercise. In Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [27], the majority (Gleeson CJ, Gummow, Hayne and Callinan JJ) noted more generally that:

[T]here is no single correct sentence. And judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies. (citations omitted)

84. Although counsel for the appellant commented on the approach to some of the sentences, he was not able to explain what was erroneous about the approach in the context of the totality principle. As seems to be implicit in Refshauge J's comments at [57] above, the appellant did not make out the appeal ground relating specifically to the concurrency of certain sentences.

85. The appellant's claim that the sentences included some inappropriate concurrency implies that the totality principle was not applied properly; this is probably how the concurrency ground of appeal should have been formulated.

86. The classic statement of the totality principle from Mill v The Queen (1988) 166 CLR 59 (Mill) is set out in Refshauge J's judgment at [62] above. Counsel for the appellant also referred to the requirement for a sentencing judge to fix an appropriate sentence for each offence before considering accumulation, concurrency and totality (Pearce v The Queen (1998) 194 CLR 610 at [45]), and the need to ensure that the totality principle is not applied so as to allow some of multiple discrete offences, in effect, to go unpunished in the sense that they add no further period to the total sentence (R v Wheeler [2000] NSWCCA 34 at [37], quoted at [50] above).

87. My understanding of how the totality principle as set out in Mill is to be applied is that the sentencing court should first decide on the appropriate sentence for each offence and identify the appropriate degree of concurrency or accumulation having regard to the relationship between the various offences. That combination of sentences and how they are to run will produce a head sentence, which the court must then "take a last look at ... just to see whether it looks wrong", by reference to the totality of the criminal behaviour and the court's assessment of "the appropriate sentence for all the offences".

88. Where the preliminary formulation of the sentence needs to be adjusted in order to achieve what seems to be the appropriate total sentence, this can be done by increasing the concurrency of the various sentences or by reducing individual sentences.

89. The High Court in Mill indicated that increased concurrency is generally to be preferred to reducing individual sentences. Among other things the former approach makes the individual sentences more useful in contributing to the establishment of the range of appropriate sentences for offences of the relevant kind (as mentioned below, a particular issue in a small jurisdiction such as the ACT).

90. I am not convinced that the Mill adjustment process needs to be exposed at any level of detail by a judicial officer in the course of imposing sentence. The individual sentences for each offence will in any case need to be specified. Anything odd about the sentence, such as an unusually high degree of concurrency or of accumulation in respect of any particular offences, might need to be explained, for instance by reference to the impact of the totality principle or to the seriousness of the offences. The final total sentence can be assumed to reflect the judicial officer's view of the appropriate total sentence having regard to the totality of the criminal behaviour, and in this case was explicitly said to do so; Nield AJ said:

As to totality, I consider that, although all the offences are separate and distinct offences, but because some of them are related to others of them, the total sentence to reflect the offender's total criminality for the offences, and to punish him properly and adequately for those offences, should be imprisonment for seven years with a Non-Parole Period of four years six months and a parole period of two years six months.

91. I do not see, however, that the judicial officer needs to spell out his or her "first draft" of concurrency and accumulation in any great detail. Apart from anything else, it will be apparent to a judicial officer with any capacity for mental arithmetic where a particular set of individual sentences is leading him or her, and that result can be adjusted in the course of refining the head sentence without ever having to record the original concurrency and accumulation, let alone all the permutations and combinations that might be "pencilled in" by the judicial officer before an apparently appropriate structure is arrived at.

92. Accordingly, I am not convinced that the process described by Nield AJ was erroneous to the extent that he revealed a process of setting individual sentences, identifying what he considered to be the appropriate total sentence, and then structuring the individual sentences to achieve that result; among other things, this appears to be the last stage of the process described in Mill, which requires the court not to just "[do] the arithmetic [produced by the initial structuring of a set of appropriate individual sentences] and [pass] the sentence which the arithmetic produces", but to identify the appropriate sentence for the totality of the criminal behaviour and to implement that by adjusting the length of sentences or preferably levels of concurrency.

93. I also note that structuring the sentences so that each offence adds to the total sentence would not necessarily have produced a significantly different outcome; for instance, if his Honour had started with one of the longest sentences, such as the two years two months sentence for TW's use of his son in the production of child pornography, and started each subsequent sentence (12 sentences in all) so that it ran for six months beyond the previous sentence, this would have produced a sentence of two years two months plus six years, namely eight years and two months; accumulating the sentences by five months each would have produced a sentence of seven years and two months, very close to the sentence actually imposed.

94. Significantly, Nield AJ's view of the proper total sentence (at [90] above) seems to mean that whatever approach his Honour had adopted to concurrency and accumulation, if that approach had produced a longer total sentence, then his Honour's "last look" at the total would presumably have led him to conclude that it "looked wrong" and would have sent his Honour back to further adjust the concurrency and accumulation of all the sentences to get to that same end result.

95. Accordingly, I find myself unable to agree with Refshauge J that Nield AJ was in error in the way he applied the totality principle.

96. The real issue behind the appeal seems to be whether the total sentence was manifestly inadequate. If that inadequacy can be shown, then it is ultimately irrelevant whether the actual error was setting the original sentences too low, accumulating them inadequately or inappropriately or in some cases not at all, or something quite different.

97. Counsel for the appellant did not, however, argue the manifest inadequacy of the total sentence as such. What counsel needed to do, but didn't, was to try to establish that the total sentence did not adequately reflect the total criminality; that is, that in having his "last look", his Honour should have been aiming for a longer total sentence so as to reflect adequately the total criminality involved.

98. It is true that manifest inadequacy is not easy to argue as distinct from assert, but it is not the case that nothing can be said to explain to the appeal court what it is about the sentence that enables it to be described as inadequate. In Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321, Gleeson CJ and Hayne J said at [6]:

Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short.

99. It is also appropriate to note that manifest inadequacy may be particularly difficult to argue when the sentence in question involves multiple offences, of multiple varieties, committed on several different occasions. However, the effect of this is to make the appellant's task harder, not to relieve the appellant of the obligation to perform that task, and the task remains to demonstrate to the court that the total sentence is inadequate to reflect the total criminality of the offender's actions.

100. Counsel for the appellant commented on Nield AJ's approach to several of the individual offences, and he drew the Court's attention to several cases from this and other jurisdictions relating to offences similar to those committed by TW. I mention some of those comments below, but none of them, in my view, supported the claim of manifest inadequacy. This was mainly because nothing counsel put to the Court took the matter beyond issues about particular offences and the sentences imposed for those offences and into questions of the overall criminality of TW's actions and what would have been an appropriate total sentence for such actions.

101. In relation to the possession offences, counsel submitted that the sentences were inadequate, having regard to:

(a) the classification (in accordance with the Oliver scale, explained by Refshauge J at [24] above) and number of pornographic images possessed by TW;

(b) a comparison with the sentences imposed in R v Holliday (ACTSC, Refshauge J, SCC 73, 341 of 2009, 24 November 2010, unreported) for smaller quantities of child pornography with no items on level 5 of the Oliver Scale; and

(c) Nield AJ's description of TW's offences as "towards the upper end of the range of objective seriousness for offences of their kind".

102. Even if this submission had been accepted, it would have gone nowhere in establishing that the total sentence did not properly reflect the overall criminality of TW's actions.

103. The NSW case of Hitchen v The Queen [2010] NSWCCA 77 (Hitchen) involved an appeal, on the grounds of manifest excess, against a sentence of 24 years imprisonment with a non-parole period of 18 years imposed in respect of six offences, being two transmission offences, one each of access and possession offences, one offence of using a child for pornographic purposes, and one of persistent abuse of a child. The last-mentioned offence, created under s 66EA(1) of the Crimes Act 1900 (NSW), carried a maximum penalty of imprisonment for 25 years, and a sentence of 16 years, with a non-parole period of 12 years, was imposed.

104. The NSW Court of Criminal Appeal reduced the total sentence imposed on Mr Hitchin to 18 years with a non-parole period of 14 years, which was achieved by providing for one of the transmission sentences to run concurrently with instead of consecutively on the sentence for persistent abuse of a child, and by reducing the parole period for using a child for pornographic purposes from six years to four years.

105. Counsel recommended the "guidance" to be found in that case, but without articulating what the guidance was; I remain unsure what the Court was intended to take from Hitchen, especially since the original sentence involved concurrency for four of the six sentences and the outcome of the appeal was that the total sentence was reduced quite substantially, including by providing for further concurrence. Most of Howie J's judgment, with which McClellan CJ at CL and Rothman J agreed, concerned the facts of the particular case. The only apparently relevant statement of principle was made at [26]:

The result in this case depends upon a proper application of the totality principle. The fact that the applicant committed a number of offences that fall within the worst category does not mean that he must receive a sentence that will reflect the criminality of each of those offences if viewed in isolation. The totality principle works to limit punishment to an overall assessment of the offender's criminality in its entirety and to recognise that sometimes appropriate punishment for each offence can result in a sentence that is unduly harsh or crushing.

106. It is not clear how this guidance, or indeed the outcome of the appeal in Hitchen, provides any support for the Crown appeal.

107. Counsel referred to comments I made at R v TC (ACTSC, Penfold J, SCC 87 of 2010, 28 March 2011, unreported), in sentencing an offender for sexual acts against his daughters, to the effect that the offender's position as the father of the victims, and his abuse of power, was an aggravating factor in relation to the indecency offences in that case. The comment, which might be seen as a statement of the obvious, was made in that case to distinguish the acts of indecency, which were aggravated by the abuse of power and the breach of trust, from the incest offences also charged, in which abuse of power and breach of trust were inherent rather than aggravating factors. The reference to my sentencing of TC may have been peripherally relevant, albeit probably unnecessary, in establishing that TW's position of power and trust in relation to his child victims aggravated the relevant offences; however, that proposition was in any case acknowledged by Nield AJ, and it did not establish either that the sentences for the offences concerned were inadequate or that the total sentence did not properly reflect the overall criminality of TW's actions.

108. What counsel did not do was to provide the kind of information and argument that the Court of Appeal has identified as necessary in several recent decisions in Crown appeals on the grounds of manifest inadequacy (see, for instance, Hawkins v Hawkins (2009) 3 ACTLR 210 at 221; R v Thorn [2010] ACTCA 10 at [33]- [34]; R v Campbell [2010] ACTCA 20 at [32]- [35] (quoted by Refshauge J at [60] above); and R v Eisenach [2011] ACTCA 2 at [42]- [44]).

109. Asked during the hearing about his failure to provide such information, counsel said that to put before the court "a pantheon on sentences in a matter such as this" would produce an appeal book running to volumes and would require the court to "dissect the minutiae" of the sentences. This seems to miss the point that, as already indicated, the claimed inadequacy of the sentence needs to be made out and, except in the most extreme cases, this needs some kind of analysis of the sentence in question and of the sentencing practice by reference to which that sentence can be said to be inadequate. As also noted, the need for careful analysis is particularly important where a matter does involve multiple sentences and a variety of different offences. Furthermore, there is no reason why the necessary information should occupy "volumes" if that information is properly analysed and organised by the appellant, not in an attempt to identify any particular error by a sentencing judge but in an attempt to identify something that can be accepted as an appropriate sentencing range in roughly comparable circumstances.

110. It may be that the real difficulty facing the Crown in appeals against sentence in the ACT is simply the apparent absence of recognised sentencing ranges for common offences, which may both lead to the imposition of sentences that are said to be inadequate (or indeed excessive) and also make it difficult to establish that inadequacy (or excess) on appeal. The problem emerges, however, at an earlier stage, with the routine failure of prosecutors to provide information to sentencing courts from which a sentencing range may be identified. In my experience, prosecutors often hand up sentencing remarks made in two or three other matters involving the same or similar offences, but rarely provide any collection of information that reveals a genuine range (let alone a genuine range for a sub-group of the offences identified, for instance, by reference to particular circumstances of the offences or the offenders).

111. It is true that the ACT is a small jurisdiction, and that the number of sentences imposed in the Supreme Court each year is relatively small when compared with jurisdictions such as NSW. However, the Court imposes sentences for some hundreds of offences every year, and most sentences are for offences that fall into a fairly small group of common offences; there should be no insuperable obstacle to collecting enough sentencing information to identify ACT ranges for, say, the "top 5" offences in the categories of property offences, violence offences, sexual offences and pornography offences.

112. Until ACT sentencing information is routinely collected and analysed so as to reveal sentencing ranges, then the work will need to be done case by case for individual sentencing appeals. That work has not been done in this case.

113. The individual sentences imposed by Nield AJ seem to me to be generally fairly lenient. If I had sentenced TW at first instance I would probably have imposed slightly higher individual sentences, would have structured the sentences to reflect more directly the connections between particular groups of offences and to ensure that each group of offences clearly extended the total term, and would probably have imposed a total sentence closer to eight or even eight and a half years with a longer non-parole period of around five to five and a half years. However, the differences between those periods, and the terms actually imposed, do not seem to me sufficient of themselves for a finding of manifest inadequacy.

114. The appellant has not persuaded me that the total sentence was manifestly inadequate.

115. Counsel for the appellant has not convinced me either that Nield AJ fell into specific error in his sentencing, or that the total sentence is manifestly inadequate, and therefore there is no ground on which I can uphold the appeal.

116. If counsel for the appellant had made a case for finding either specific error or manifest inadequacy, then it would have been appropriate to look at any material in rebuttal provided by the respondent. In the absence of such a case having been made by the appellant, the respondent's failure to provide such rebutting material is not a basis for upholding the appeal.

117. In the absence of error identified explicitly or by inference from the sentence itself, it is not the role of an appellate court to replace a sentence just because it would have imposed a somewhat different sentence at first instance. Furthermore, the differences I have mentioned at [113] above between the sentences I might have imposed at first instance and the sentences in fact imposed would not in my view, at least on a Crown appeal, necessarily have justified appellate intervention even if a specific sentencing error had been identified.

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