R v Wood

Court of Criminal Appeal (NSW)|2015-06-01|Before: Gleeson JA, Johnson J, Garling J

Judgment

GLEESON JA: I agree with Johnson J.
JOHNSON J: The Crown appeals pursuant to s.5D Criminal Appeal Act 1912 with respect to the sentence imposed on the Respondent, Calvyn John Wood, at the Parramatta District Court on 10 December 2014.
The Respondent had pleaded guilty on 1 May 2014 to one count of possessing child abuse material contrary to s.91H(2) Crimes Act 1900, an offence punishable by imprisonment for 10 years with no standard non-parole period.
His Honour Judge Williams SC sentenced the Respondent to imprisonment for two years and nine months commencing 10 December 2014 and expiring on 9 September 2017 with a non-parole period of 12 months.
The Crown's sole ground of appeal is that the sentence imposed on the Respondent was manifestly inadequate.

Background Facts

An Agreed Statement of Facts was tendered in the District Court. Except where otherwise indicated, what follows is drawn from that statement.
On 18 December 2012, a search warrant was executed at a three bedroom town house rented by Grantly Leroy Morris ("Morris") in North Parramatta. The Respondent rented a bedroom from Morris on the upper level within the townhouse. A large number of items, including desktop computers, external portable hard drives, compact discs, thumb drives and digital video cameras were seized during the execution of the search warrant.
Investigators conducted a preliminary examination of external portable hard drives belonging to the Respondent and subsequently identified a substantial amount of child abuse material on three of those portable hard drives.
Between 12 February 2013 and 15 February 2013, a forensic review was conducted at the New South Wales Police State Electronic Evidence Branch on the electronic equipment belonging to both Morris and the Respondent which was seized during the search warrant.
A total of 755,249 picture images and 17,299 video files were identified during the forensic review on the three computer towers and three portable hard drives belonging to the Respondent.
The Child Exploitation Tracking System ("CETS") Scale was used to classify a random sample of material seized from the Respondent.
The CETS Scale classifies child abuse material into the following categories: 1. Category 1 - Depictions of children with no sexual activity (nudity, sexually suggestive posing, explicit emphasis on genital areas). 2. Category 2 - Non-penetrative sexual activity between children or solo masturbation by a child (explicit sexual activity not involving an adult). 3. Category 3 - Non-penetrative sexual activity between child(ren) and adult(s) (mutual masturbation and other non-penetrative sexual activity). 4. Category 4 - Penetrative sexual activity involving child(ren) or both child(ren) and adult(s) (including, but not limited to, intercourse, cunnilingus and fellatio). 5. Category 5 - Sadism or bestiality (sexual imagery involving pain, humiliation or animals). 6. Category 6 - Animation/cartoon/CGI depicting CETS scales 1-5 (any animation, cartoon, drawing or computer generated imagery depicting and of the CETS scales 1-5). Material Found on the Respondent's Computer Towers
Three computer towers belonging to the Respondent were examined. Two computer towers contained images of prepubescent boys, aged between approximately six and 12 years, with different children depicted in each image. The remaining computer tower contained computer generated images of prepubescent male children.
Details of those computer towers and the material they contained are as follows: 1. Dell Tower PC - A Dell tower PC was found to contain a total of 240,441 images. A random sample was selected and of this, 9,600 images were sample examined and 58 picture files were selected from the sample. Those picture files were classified according to the CETS Scale (described at [12] above) and contained 45 Category 1 images, five Category 2 images, five Category 3 images, and three Category 4 images. There were no images falling within Categories 5 or 6. 2. Antec PC Tower Drive - An Antec PC Tower drive was found to contain a total of 22,475 picture files and 2,267 video files. Of those files, 5,153 picture files and 60 video files were sample examined. Of the picture files, 222 fell within Category 1, 32 within Category 2, 12 within Category 3, and 34 within Category 4. There were no picture files falling within Categories 5 or 6. Of the video files, eight fell within Category 1, nine within Category 2, six within Category 3 and eight within Category 4. There were no video files falling within Categories 5 or 6. 3. MP Media Pro Tower PC - An MP Media Pro Tower PC was found to contain a total of 2,477 computer generated images. Fifty-five of those images were found to contain Category 6 child abuse material. Material Found on the Respondent's External Hard Drives
Three external hard drives belonging to the Respondent were also examined. Each hard drive contained images of prepubescent boys, aged between approximately six and 12 years, with different children depicted in each image.
Details of those external hard drives and the material they contained are as follows: 1. Western Digital External Hard Drive (1) - A Western Digital external hard drive was found to contain a total of 18,486 picture files and 23 video files. Of those files, 854 picture files and 11 video files were sample examined. The sample picture files revealed 222 Category 1 files, 31 Category 2 files, 11 Category 3 files, 35 Category 4 files, and one Category 5 file. Of the sample video files, there were nine Category 1 videos and two Category 3 videos. None of the sample videos fell within Categories 2, 4, 5 or 6. 2. Western Digital External Hard Drive (2) - Another Western Digital external hard drive was found to contain a total of 220,424 picture files and 4,261 video files. Of those files, 3,643 picture files and 211 video files were sample examined. The sample picture files revealed 230 Category 1 files, 30 Category 2 files, 15 Category 3 files, and 25 Category 4 files. Of the video files, there were 26 Category 1 videos, 13 Category 2 videos, eight Category 3 videos, and 21 Category 4 videos. None of the sample videos fell within Categories 5 or 6. 3. Seagate USB External Hard Drive - A Seagate external hard drive was found to contain a total of 250,946 picture files and 6,748 video files. Of those files 2,500 picture files and 650 video files were sample examined. The sample picture files revealed 219 Category 1 files, 39 Category 2 files, 19 Category 3 files, and 23 Category 4 files. None of the sample picture files fell within Categories 5 or 6. Of the sample video files, there were eight Category 1 videos, nine Category 2 videos, six Category 3 videos, 21 Category 4 videos, two Category 5 videos and no Category 6 videos.
The forensic review of the material also indicated that the three external hard drives contained "back-ups" of the child abuse material that were stored on the three desk top computer towers. In addition, the files had been categorised into folders with references including "trading file", "chat docs", "administrator", and "XXXX".
In total, applying statistical sampling pursuant to s.289B Criminal Procedure Act 1986, using the lowest figure in the range, the Respondent would have had in his possession across all of the six devices analysed, approximately 49,433 picture images and 2,175 videos containing child abuse material: Crown Submissions on Appeal at [9].

The Respondent's Subjective Circumstances

The Respondent was 62 years of age at the time of sentence.
His criminal history involved three offences of indecent assault and one offence of procuring an act of indecency against the same victim, a male under the age of 16, between 1977 and 1982 (when the victim was aged between eight and 12 years). After trial, he was sentenced at the Parramatta District Court on 20 February 1992 to a total effective term of imprisonment for two years and eight months, with a non-parole period of two years.
Before the sentencing court were a presentence report dated 21 August 2014 prepared by a Community Corrections Officer and a report dated 7 August 2014 of Delphine Bostock, Forensic Psychologist, bearing on the subjective circumstances of the Respondent.
The presentence report documented a number of matters, including the Respondent's disadvantaged and emotionally insecure upbringing and his lengthy history of depressive illness and social isolation. He was in receipt of the Disability Support Pension, granted to him in 2008, for a long-standing back complaint and poor mental health. The report noted that the Respondent appeared to lack an appreciation of the impact that child pornography has on children and that he denied deliberately seeking access to child abuse material for sexual gratification. The report also noted that the Respondent would be eligible for a custodial sex offender program if sentenced to imprisonment and that a minimum of two years would be needed for that purpose.
The report of Ms Bostock recorded the Respondent's denial that he used child pornography for masturbation but that he felt compelled to categorise the material he had downloaded. The report also recorded the Respondent's lack of insight into his offending, noting that he did not "see the pain, that they were being hurt" and that he was instead searching for signs of happiness in the children. Ms Bostock also indicated that a minimum of two years would be needed to complete a custodial sex offender program.

Proceedings in the District Court and Remarks on Sentence

The Respondent pleaded guilty to the present offence on 1 May 2014 at Parramatta Local Court and was committed to the District Court for sentence.
He came before his Honour Judge Williams SC at the Parramatta District Court on 10 December 2014.
In the course of the hearing, documentary material was provided to the Court, including agreed facts, the Respondent's criminal and custodial history, a presentence report (to which reference has been made), file paths indicating the manner in which some of the child abuse material had been stored, Crown written submissions, a report from Ms Bostock (to which reference has been made) and a statistical analysis report with respect to the material found in the Respondent's possession and relevant sentencing statistics.
The Respondent gave evidence at the hearing. Whilst giving evidence, the Respondent accepted (apparently for the first time) that at least some of the children depicted in the photographs had been harmed (T42/AB187).
Following the hearing, the sentencing Judge proceeded to deliver ex tempore remarks on sentence.
After a relatively lengthy summary of the agreed facts, the findings of the presentence report and the report of Ms Bostock, and the submissions of both the Crown and the defence, his Honour proceeded to make findings.
His Honour took into account "as a very significant matter the question of general deterrence" (ROS9/AB14) and noted that the Respondent's previous convictions could not be a factor which entitled the Respondent to any leniency on sentence (ROS10/AB15).
His Honour found (ROS10-11/AB15-16): "Notwithstanding that the offender had taken no apparent opportunity to seek counselling or treatment in the last 18 months and that the Crown asserts that his prospects are therefore guarded of achieving any realistic rehabilitation his evidence before me today has impressed upon me that he has, albeit belatedly, come to a recognition that his condition is one which needs treatment and I have some hope that treatment will lead him away from any further reoffending. I would assess his prospects of rehabilitation as guarded but not to be dismissed out of hand."
His Honour went on to say (ROS11/AB16): "Mr Karim ultimately submitted that a finding of special circumstances should be made if a custodial sentence was imposed and the factors which he put and which accept [sic] which justify such a finding include his age, his need for strict protection in custody which can be inferred and the extent of his physical disability and the extent of his mental illness, albeit that it is not the subject of current specific treatment. In the light of the material that I have summarised and the submissions to which I have referred I find that the offender's criminal conduct falls within the mid-range of objective seriousness and that he is entitled to a finding of special circumstances."
In sentencing the Respondent, his Honour found (ROS11/AB16): "I am simply unable in the light of the statements in the authorities and the subjective and objective features of this case to do other than impose a period of full-time imprisonment and I therefore do not accept Mr Karim's suggestion that a suspended sentence of two years is appropriate."
A 25% discount was allowed for the utilitarian value of the Respondent's guilty plea.
The practical effect of his Honour's finding of special circumstances was to vary substantially the statutory ratio of 75% prescribed by s.44 Crimes (Sentencing Procedure) Act 1999 to about 36%.

Principles Applicable to Sentencing for Child Pornography Offences

This Court has recently had cause to consider the principles that apply with respect to sentencing for child pornography offences (R v Porte [2015] NSWCCA 174; R v De Leeuw [2015] NSWCCA 183).
In R v De Leeuw, the Court reiterated the following principles (at [72]): "72 Appellate courts throughout Australia have consistently stated that the following propositions apply to sentencing for child pornography offences: (a) Unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted: R v Jongsma [2004] VSCA 218; 150 A Crim R 386 at 395 [14]; Hill v Western Australia [2009] WASCA 4 at [28]; R v Booth [2009] NSWCCA 89 at [48]; R v Sykes [2009] QCA 267 at [24]; DPP v Groube [2010] VSCA 150 at [24]; DPP (Cth) v D'Alessandro [2010] VSCA 60; 26 VR 477 at 483-4 [21]; Director of Public Prosecutions (Cth) v Guest [2014] VSCA 29 at [23]-[24]; DPP v Smith [2010] VSCA 215 at [23], [26]-[29]. (b) The objective seriousness of the offending is ordinarily determined by reference to the following factors: (i) the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted; (ii) the number of items or images possessed; (iii) whether the material is for the purpose of sale or further distribution; (iv) whether the offender will profit from the offence; (v) in the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised; (vi) the length of time for which the pornographic material was possessed: R v Jongsma at 400 [28]; R v Gent [2005] NSWCCA 370; 162 A Crim R 29 at 49 [99]; DPP (Cth) v D'Alessandro at 483-484 [21]; DPP (Cth) v Guest at [25]. (c) General deterrence is the primary sentencing consideration for offending involving child pornography: Assheton v R [2002] WASCA 209; 132 A Crim R 237 at 246-247 [35]-[36]; DPP (Cth) v D'Alessandro at 483-484 [21]; Edwards v The Queen [2013] VSCA 188 at [22]; DPP (Cth) v Guest at [25]; Heathcote (A Pseudonym) v R [2014] VSCA 37 at [40]; DPP (Cth) v Zarb [2014] VSCA 347 at [34]. (d) Less or limited weight is given to an offender's prior good character: R v Gent at 44 [65]; DPP (Cth) v D'Alessandro at 483-484 [21]; Mouscas v R [2008] NSWCCA 181 at [37]. (e) Offending involving child pornography occurs on an international level and is becoming increasingly prevalent with the advent of the Internet as a means of allowing people to access and obtain child pornography: R v Jones [1999] WASCA 24; 108 A Crim R 50 at 51 [2]; Assheton v R at 246-247 [35]-[36]. (f) Offending involving child pornography is difficult to detect given the anonymity provided by the Internet: Mouscas v R at [31]; R v Booth at [29]. (g) The possession of child pornography material creates a market for the continued corruption and exploitation of children: R v Coffey [2003] VSCA 155; 6 VR 543 at 552 [30]; R v Cook; Ex parte Director of Public Prosecutions (Cth) [2004] QCA 469 at [21]; R v Jongsma at 395 [14]; Heathcote (A Pseudonym) v R at [40]. (h) There is a paramount public interest objective in promoting the protection of children as the possession of child pornography is not a victimless crime - children are sexually abused in order to supply the market: R v Jones at 52 [9]; DPP (Cth) v D'Alessandro at 484 [23]. (i) The fact that an offender does not pay to access a child pornography website or was not involved in the distribution or sale of child pornography does not mitigate the offending: R v Coffey at 552 [30]."
As the authorities emphasise, the possession of child pornography is not a victimless crime. Not only is a child sexually abused in order to produce the material, harm is also occasioned by virtue of the material remaining in circulation, in effect compounding the original abuse and further degrading the victim: R v Porte at [69]-[70].
Sentences imposed for offences contrary to s.91H must reflect the increase in maximum penalty in 2008 from five years to 10 years' imprisonment. Further, as the authorities consistently make clear, the ready availability of child abuse material has warranted substantial penalties with general deterrence and denunciation being paramount considerations: R v Porte at [59], [62].
Although R v Porte and R v De Leeuw concerned sentencing for a mixture of Commonwealth and State child pornography offences, the propositions set out above are applicable to sentencing for a s.91H offence and will be borne in mind in the determination of the present appeal.

The Ground of Appeal - Claim of Manifest Inadequacy Submissions

The Crown's claim of manifest inadequacy is said to arise out of a deficiency in his Honour's assessment of the objective seriousness of the offence and a failure to turn his mind properly to general and specific deterrence.
In essence, the Crown submission is that the sentencing Judge provided no real analysis of general and specific deterrence, and provided little account of a number of matters that went to the objective seriousness of the offending, including specific matters which were the subject of submissions at the hearing. As a result, the Crown submits, a manifestly inadequate sentence was imposed.
In particular, the Crown submits that his Honour ought to have adverted to a number of specific matters, including that (applying statistical sampling) there would have been about 4,819 Category 4 images and 697 Category 4 video file pictures on the Respondent's devices, the large number of victims depicted, the significant abuse involved, and the fact that the Respondent had collected the material over a period of 15 years.
The Crown submits that the sentence imposed, both the head sentence and the 12 month non-parole period, was manifestly inadequate even accepting a finding of special circumstances with respect to the non-parole period.
The Respondent submits that the starting point for the head sentence of three years and eight months before application of the 25% utilitarian discount was not self-evidently "unreasonable or plainly unjust". Particularly in light of the Crown submission in the District Court that the offending fell within the mid to upper range of objective seriousness, the Respondent submits that his Honour's assessment of the objective seriousness of the offence was open.
In relation to the Crown submission that the sentencing Judge failed to turn his mind to general and specific deterrence, the Respondent points to his Honour's mention of general sentencing principles and the fact that general deterrence was specifically taken into account by his Honour as a "very significant matter".
With respect to the non-parole period imposed, the Respondent submits that there is nothing inherently erroneous in a ratio of 36% and points to a number of authorities as well as statistics from the Judicial Commission of New South Wales in support of that proposition. The Respondent submits that the present case was one in which an extended period of release on parole was desirable. Decision
The Crown's claim of manifest inadequacy is founded on an alleged failure to properly assess the objective seriousness of the offence and a failure to properly consider the question of general and specific deterrence.
It should be borne in mind from the outset that his Honour's remarks on sentence were delivered ex tempore immediately following the sentencing hearing and due allowance must be made for that circumstance: R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at 577 [48].
In order for the Crown to make good its claim of manifest inadequacy, it must satisfy this Court that the sentencing Judge's discretion miscarried in the sense that the sentence imposed was below the range of sentences that could be justly imposed for the offence consistent with sentencing standards: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at 588 [24]. In other words, it must be shown that the sentence is unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25].
Of course it is well established that, absent error, this Court may not substitute its own opinion for that of the sentencing Judge merely because (if it be the case) the Court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at 671-672; Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at 477-478.
In the circumstances of the present case, I am not persuaded that the sentencing Judge erred in the manner submitted by the Crown. His Honour clearly had regard to the objective seriousness of the offending and made findings in respect of that factor, took into account the importance of general deterrence as a "very significant matter" (ROS9/AB14) and made an assessment concerning the Respondent's prospects of rehabilitation.
The sentencing Judge's failure to mention specific matters adverted to by the Crown (outlined at [43] above) does not of itself demonstrate that his Honour did not properly exercise his sentencing discretion with respect to the head sentence. Failing to advert to a given factor or factors relevant to the sentencing discretion in the context of an ex tempore judgment should not too readily be assumed to reveal oversight: PK v R [2012] NSWCCA 263 at [46].
To the extent that the Crown challenges the sentencing Judge's characterisation that this offence fell within the mid-range of objective seriousness, I do not accept that submission. It was open to the sentencing Judge to make such a finding.
I am not persuaded that the head sentence imposed on the Respondent of imprisonment for two years and nine months was manifestly inadequate in the sense of being unreasonable or plainly unjust.
The matters articulated by the sentencing Judge in support of the finding of special circumstances (see [32] above) provided no reasonable foundation for a very substantial variation of the statutory ratio from 75% to about 36%. The factors recited were no doubt taken into account in determining the head sentence. Double counting of factors should be guarded against, although some overlap may be warranted: R v GWM [2012] NSWCCA 240 at [102]-[107]. His Honour's referral of the Respondent for assessment by Corrective Services for participation in a custodial sex offender program, despite evidence that a minimum of two years in custody would be required for that purpose, added a further complication in understanding the rationale for the orders made.
It is settled principle that the adjustment of the statutory ratio, after considering factors relevant to the fettered discretion, must lead to the imposition of a non-parole period which constitutes the minimum period which an offender should spend in custody having regard to all objective and subjective circumstances, including the objective gravity of the offence and the need for general deterrence: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at 718 [65]; R v GWM at [118].
The non-parole period should constitute the least period which the Respondent ought be required to serve for his crime before being eligible for parole, having regard to all the purposes of punishment and not simply his rehabilitation: Hejazi v R [2009] NSWCCA 282 at [36]: R v GWM at [118].
In Maglis v R [2010] NSWCCA 247, this Court said (at [28]): "… the reduction of the non-parole period by a finding of special circumstances cannot result in an overall non-parole period that fails to reflect the seriousness of the offence and both specific and general deterrence".
As the authorities consistently make clear, when sentencing for child pornography offences general deterrence and denunciation are the primary considerations (see [39] above).
It is appropriate to note some features concerning the objective gravity of the offence.
The sentencing Judge found that the offence lay within the mid-range of objective seriousness. This finding was open to his Honour. The Respondent was to be sentenced for a single "rolled-up" charge under s.91H: R v De Leeuw at [116]. The significant volume of child abuse material in his possession rendered this a serious s.91H offence, albeit within the mid-range of objective seriousness.
The Respondent had prior convictions for sexual offences committed against a boy between 1977 and 1982, for which sentences of imprisonment were imposed. The Respondent had not demonstrated insight into his offending nor fully acknowledged the harm done to the children depicted in the child abuse material. These aspects did not assist the Respondent in the fixing of a non-parole period.
In my view, the very substantial level of variation from the statutory ratio in the present case has resulted in the imposition of a non-parole period that clearly fails to reflect the objective gravity of the offending and the heightened need for general deterrence in sentencing for this class of offences.
I am satisfied that the non-parole period of 12 months' imprisonment imposed on the Respondent was manifestly inadequate. The Crown has demonstrated error in this respect.

Should the Discretion to Resentence the Respondent be Exercised?

Having established manifest inadequacy with respect to the non-parole period imposed on the Respondent, the Crown must demonstrate that the discretion to resentence the Respondent should be exercised: CMB v Attorney General (NSW) [2015] HCA 9; 89 ALJR 407 at 415 [33].
Mr Odgers SC, counsel for the Respondent, read the affidavit of the Respondent affirmed 20 May 2015, to be taken into account on the exercise of the residual discretion and resentencing.
The Respondent's affidavit documents his shock and anxiety upon learning of the Crown appeal as well as a number of health complaints that appear to have been exacerbated by his time in prison.
The Crown appeal in this case was filed without delay and although the Crown did not wish to be heard on the question of special circumstances in the District Court, in light of the very significant deviation from the statutory ratio, I do not consider that this operates adversely to the Crown on appeal. There is no other aspect of the Crown's conduct in the District Court that would operate adversely to the Crown.
I am satisfied that the non-parole period imposed in this case clearly fails to reflect the objective gravity of the offending and the importance of general deterrence in sentencing for child pornography offences.
As a result, I am satisfied that this Court should intervene by imposing a non-parole period that adequately reflects the gravity of the offending in this case.

Resentencing the Respondent

In resentencing the Respondent, it is appropriate to take into account the evidence before the District Court and the additional evidence before this Court.
The Crown challenge to the head sentence of two years and nine months' imprisonment has not succeeded. The Respondent's subjective circumstances (including his age, health and conditions of custody) were taken into account in determination of the head sentence.
A finding of special circumstances is appropriate, in particular to allow for a modest additional period of supervised conditional liberty. A non-parole period of one year and 10 months should be fixed (being about 66% of the head sentence). This is the minimum period the Respondent should spend in custody having regard to all the circumstances of the case: R v Simpson at 718 [65].
I propose the following orders: 1. Crown appeal allowed; 2. sentence imposed upon the Respondent on 10 December 2014 is set aside; 3. in its place, the Respondent is sentenced to imprisonment comprising a non-parole period of one year and 10 months commencing on 10 December 2014 and expiring on 9 October 2016, with a balance of term of 11 months commencing on 10 October 2016 and expiring on 9 September 2017; 4. for the purpose of s.50 Crimes (Sentencing Procedure) Act 1996, the Respondent is to be released to parole on 10 October 2016.
GARLING J: I agree with the orders proposed by Johnson J, for the reasons which he gives.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 August 2015

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