Court of Appeal (Vic)|2012-09-28|Before: Osborn JA, Harper JA, Nettle JA, Redlich JA

S J v The Queen [2012] VSCA 237 (28 September 2012)

DPP v S J (Unreported, County Court of Victoria, Judge Pilgrim, 24 January 2011)

1 I agree with Osborn JA, for the reasons he gives, that the appeal should be allowed and that the appellant be resentenced as he proposes.

2 I would allow the appeal for the reasons given by Osborn JA and resentence the appellant as Osborn JA has proposed.

3 The appellant appeals from sentences imposed on 24 January 2011 in the County Court in respect of convictions for 21 charges of indecent acts with a child under 16; 11 charges of sexual penetration of a child under 16; two charges of possessing child pornography; and one charge each of procuring a minor for child pornography, producing child pornography, possession of a drug of dependence, using a carriage service to make child pornography and using a carriage service to access child pornography. The last two convictions relate to Commonwealth offences, whereas the former relate to State offences.

4 By reason of the extent, factual complexity and mixed jurisdictional character of the offending, the sentencing judge was confronted with a very difficult task.

5 On 16 May 2012, Harper JA granted leave to appeal against the sentences imposed in the County Court on three grounds:

(1) the learned sentencing judge erred by failing to nominate commencement dates for the State sentences in accordance with s 16(4) of the Sentencing Act 1989 (Vic.) ('the Sentencing Act');

(2) the learned sentencing judge erred by imposing a common non-parole period in respect of the State and Commonwealth sentences;

(3) the learned sentencing judge erred by ordering that groups of State sentences operate concurrently with other groups of sentences in a manner that did not achieve the stated total effective sentence.

6 It is conceded by the respondent that the sentencing judge fell into error with respect to the matters raised in grounds 2 and 3. These concessions are properly made.

7 Section 19AJ of the Crimes Act 1914 (Cth) ('the Commonwealth Crimes Act') does not permit a sentencing court to impose a common non-parole period in respect of State and Federal sentences. The sentencing judge should have stated the commencement date of both the State and Commonwealth sentences and assigned such non-parole period to each as was, in his view, appropriate, if any.[1]

8 The sentencing judge also purported to cumulate groups of sentences. No specific sentence was nominated as the base sentence and no specific sentence in each group was thereafter nominated as being cumulated. This approach is in error in the absence of orders for aggregate sentences.[2]

9 Further, the imposition of group sentences did not acknowledge the individual gravity of offences comprised in the groups. Nor did it give proper effect to s 6E of the Sentencing Act.[3]

10 In consequence, the appellant falls to be re-sentenced. It is unnecessary to further consider the first ground of appeal.

11 The appellant submits the total effective sentence of imprisonment of 12 years (with a non-parole period of nine years) which it is apparent his Honour intended to impose was not warranted given:

(a) the fact that much of the offending was evidenced solely by disclosures the appellant made in his record of interview; and

(b) the sentences of 90 months imposed in respect of each of charges 11, 13 and 14 relating to acts of sexual penetration with a child under 16 were manifestly excessive.

12 Whilst the second submission is not without force, I am not persuaded that the total effective sentence which his Honour intended to impose was manifestly excessive, either by reason of the matters identified by the appellant or having regard to relevant sentencing considerations as a whole. I have reached the view, for the reasons set out below, that the appellant should be re-sentenced but not so as to reduce the total effective sentence which the sentencing judge intended to impose or the non-parole period which he intended to give effect to.

13 The following table sets out the offences in respect of which the appellant was convicted, the maximum penalties applicable, the sentence of imprisonment imposed by the sentencing judge and the orders made for concurrency and other related orders.

[s 47(1) of the Crimes Act 1958]

10 yrs [s 47(1) of the Crimes Act 1958]

Sexual penetration of a child under the age of 16 [s 45(1) of the Crimes Act 1958]

25 yrs [s 45(2)(a) of the Crimes Act 1958]

Procuring a minor for child pornography [s 69(1) of the Crimes Act 1958]

10 yrs [s 69(1) of the Crimes Act 1958]

Producing child pornography [s 68(1) of the Crimes Act 1958]

10 yrs [s 68(1) of the Crimes Act 1958]

Possession of child pornography [s 70(1) of the Crimes Act 1958]

5 yrs [s 70(1) of the Crimes Act 1958]

Possession of a drug of dependence [s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981 ('DPCSA')]

Using a carriage service to make child pornography available [s 474.19(1)(a)(i) of the Criminal Code 1995 (Cth) ('CCA')]

Using a carriage service to access child pornography [s 474.19(1)(a)(iv) of the Criminal Code 1995 (Cth) ('CCA')]

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

6AAA Statement: The Learned Sentencing Judge stated that the sentence he would have imposed if the appellant had been convicted of these offences after a trial would have been 15 years imprisonment, with the appellant becoming eligible for parole after serving 12 years of that sentence.

1. The sentence on the State offences was ordered to commence immediately following the conclusion of the sentence imposed on the Commonwealth offences.

2. The sentence on the Commonwealth offences was ordered to commence on 24 January 2011;

3. Pursuant to s 6B of the Sentencing Act 1991 the appellant is to be sentenced as a Serious Sexual Offender on charges 11 and 13;

4. Pursuant to s 6F of the Sentencing Act 1991 it is to be recorded in the records of the court that the appellant was sentenced as a Serious Sexual Offender on charges 11 and 13;

5. Pursuant to s 34 of the Sex Offenders Registration Act 2004 the appellant was declared a registrable offender and the length of reporting is Life;

6. Forfeiture Order pursuant to s 78(1) of the Confiscation Act 1997;

7. Forensic sample order pursuant to s 464ZFB(2) of the Crimes Act 1958;

14 The appellant was aged between 29 and 36 years at the time of the offending and was 37 years of age at the time of sentence. The offending involved three victims: DR,[5] CG[6] and JG.[7] Victims CG and JG are brother and sister. The facts giving rise to the charges are as follows.[8]

15 Between 2002 and 2007 DR (who was born on 10 November 1992) was living with his father. During 2002, the appellant lived at a caravan park in Kerang and at this time DR (aged 10) and his father also lived in the caravan park. The appellant became friends with DR's father and remained friends when the appellant moved from this caravan park to another caravan park in country Victoria. DR stayed with the appellant every month or two after the appellant left Kerang.

16 Whilst staying with the appellant throughout the period 2002 to 2007, DR was repeatedly woken up by the appellant touching and masturbating his penis whilst he was sleeping.

17 Between 1 January 2003 and 31 December 2003, DR visited the appellant. Whilst staying with the appellant, DR woke up on the couch to find the appellant lying beside him and slowly moving his hand down DR's stomach towards his penis. (Charge 1 - Indecent Act with a Child Under 16) Between these same dates, DR was sleeping in the appellant's bed and woke to find the appellant holding DR's penis in his hand. DR threw the appellant's arm off him. The appellant then got up and slept in the lounge room. (Charge 2 - Indecent Act with a Child Under 16)

18 On an occasion between 1 January 2005 and 31 December 2006, DR was asleep on a mattress in the appellant's lounge room. DR was woken by the appellant who was lying behind him with his hand on DR's penis. DR threw the appellant's hand off him and went and slept on the couch. (Charge 3 - Indecent Act with a child under 16) After the appellant touched DR's penis whilst sleeping in the lounge room, DR was woken up a second time and the appellant was again holding DR's penis in his hand. (Charge 4 - Indecent Act with a Child Under 16)

19 On another occasion between 1 January 2005 and 31 December 2006, DR was sleeping in the appellant's spare room. DR awoke to find the appellant lying on the floor with his hand over the bed and touching DR's penis. DR yelled at the appellant who then got up and left the room. (Charge 5 - Indecent Act with a Child Under 16) DR went back to sleep. Shortly after, the appellant returned to the spare room. DR was again woken by the appellant masturbating his penis. The appellant was naked lying on his back and had placed DR's hand on his penis whilst he masturbated DR. (Charge 6 - Indecent Act with a Child Under 16)

20 On a further occasion between 1 January 2005 and 21 December 2005, DR was sleeping in the appellant's bed while the appellant was drinking with a friend. During the night, DR was awoken by the appellant masturbating his penis. (Charge 7 - Indecent Act with a Child Under 16) The appellant was naked lying on the floor and had placed DR's hand on his (the appellant's) penis whilst he masturbated DR. (Charge 8 - Indecent Act with a Child Under 16)

21 Between 1 January 2006 and 31 December 2007, the appellant picked DR up from his mother's house in Bendigo and drove him to the appellant's house to stay with him for the weekend. Whilst sleeping in the spare room, DR awoke to the appellant touching his penis. (Charge 9 - Indecent Act with a Child Under 16)

22 DR was aged approximately 14 years when the appellant last offended against him.

23 The appellant participated in a record of interview on 28 April 2010, where he made admissions to masturbating DR when he was living in Kerang over a two year period. On 2 July 2010, DR made a statement to police detailing the offending by the appellant.

24 Between 2008 and 2010, CG (who was born on 25 May 1999) and JG (who was born on 8 October 2000) lived with their parents in country Victoria. The appellant had known their father since he was young and attended the same primary school. They had remained close friends throughout their lives and the appellant had become an 'uncle figure' to all three of the family's children. The appellant had all three children stay at his house on several occasions, however CG stayed with the appellant the most.

25 On separate occasions between 1 January 2008 and 31 December 2008:

(a) The appellant masturbated the penis of CG on the couch in the lounge room at CG's family home; (Charge 10 - Indecent Act with a Child Under 16)

(b) The appellant sucked CG's penis whilst on the couch in the lounge room of CG's family home; (Charge 11 - Sexual Penetration of a Child Under 16) This act of sexual penetration took place when CG was under the age of 10.

(c) The appellant masturbated the penis of CG in CG's bedroom at his family home; (Charge 12 - Indecent Act with a Child Under 16)

(d) The appellant sucked CG's penis in CG's bedroom at his family home. (Charge 13 - Sexual Penetration of a Child Under 16) This act of sexual penetration took place when CG was under the age of 10.

26 On another occasion between 1 January 2009 and 28 February 2009, the appellant sucked CG's penis at the appellant's home. (Charge 14 - Sexual Penetration of a Child Under 16) This act of sexual penetration took place when CG was under the age of 10.

27 On a further occasion between 1 June 2009 and 31 December 2009, the appellant used CG, who was aged 10 years of age, to take moving and still images of CG without clothes on and whilst the appellant was masturbating CG. (Charge 15 - Procure a Minor for Child Pornography)

28 On a further occasion between 1 June 2009 and 21 December 2009, the appellant used his Samsung Digimax digital camera to produce child pornography using CG for both still and moving pornographic images. (Charge 16 - Produce Child Pornography)

29 On 11 October 2009, the appellant masturbated CG's penis before taking a photo of CG's erect penis using his Samsung Digimax digital camera. This occurred at the appellant's home address. (Charge 17 - Indecent Act with a Child Under 16) On this same date, the appellant sucked CG's penis before taking a photo of CG's erect penis using the same digital camera. This also took place at the appellant's home address. (Charge 18 - Sexual Penetration of a Child Under 16)

(a) The appellant inserted his finger into CG's anus whilst CG was at the appellant's home; (Charge 19 - Sexual Penetration of a Child Under 16)

(b) The appellant used a pig lubricant to cover CG's anus and inserted his penis into CG's anus. This took place on the appellant's bed at his home address; (Charge 20 - Sexual Penetration of a Child Under 16)

(c) The appellant placed his erect penis on CG's bottom whilst he was cuddling CG from behind as CG slept in the appellant's bed. (Charge 21 - Indecent Act with a Child Under 16)

31 On 17 February 2010, members of the Australian Federal Police ('AFP') executed a warrant on a Holden Commodore and the appellant made admissions to police including:

(a) He used the software program 'Gigatribe' and his username is 'Boyhorny09';

(b) Child pornography images and videos are contained on his computer at his home address;

(d) He had been using Gigatribe since February 2009;

(e) All the child pornography on his computer he obtained from other Gigatribe users.

32 The AFP then attended the appellant's home and a second search warrant was executed. In the living area of the house, Police located a midi tower computer which was switched on and the software program 'Gigatribe' was running. Preliminary examination of the computer found that it contained child pornographic images of male and females, aged between approximately 4 and 16 years of age, in sexualised poses and depicted acts of sexual penetration with other children and adults. Gigatribe is a peer to peer software program that allows the transfer of files between users over the internet.

33 A diary and exercise book were located on the computer desk that contained usernames and passwords for Gigatribe, Telstra internet and several other websites. The Computer, attached external hard drive, the diary and exercise book were all seized and the appellant was conveyed to the Gunbower Police Station where he participated in a record of interview. During the record of interview, the appellant stated the following:

(a) He was in possession of child pornography on the computer seized;

(b) He used the program Gigatribe to download child pornography;

(d) Nobody else lived at his house and nobody else uses his computer;

(e) His computer had a password to access it and nobody else knew his password;

(f) When he left the house he left the computer on and Gigatribe running and he was aware that other users could download images and videos depicting child pornography from his computer:

(g) He last viewed child pornography that morning, before he left for work.

34 At the time the search warrant was executed, two other Gigatribe users were downloading files from the appellant's computer.

35 Gigatribe has a chat function that allows users to chat with each other. An analysis of the computer revealed that several chats (between the appellant and other users) involved discussions of the trading of images and videos of child pornography as well as advice as to how to avoid law enforcement.

36 The computer equipment was subsequently analysed by an AFP Computer Forensics team and located on the computer and the external hard drive were approximately 53,870 child pornographic images and 3,751 videos containing child pornography. (Charge 22 - Possess Child Pornography)

37 Later that day, the appellant was taken to the Swan Hill Police Station and was charged with numerous offences and released on bail with reporting and other conditions.

38 The following offences against CG were committed whilst the appellant was on bail.

39 On a Friday night between 12 March 2010 and 26 March 2010:

(a) The appellant sucked CG's penis whilst CG was staying at the appellant's home; (Charge 23 - Sexual Penetration of a Child Under 16)

(b) The appellant masturbated CG's penis whilst CG was staying at the appellant's home; (Charge 24 - Indecent Act with a Child Under 16)

(c) The appellant asked CG to hold onto his erect penis as they were lying in the appellant's bed at the appellant's home. CG was staying with the appellant for the weekend. (Charge 25 - Indecent Act with a Child Under 26)

40 Between 12 March 2010 and 26 March 2010, on a Saturday morning, the appellant sucked CG's penis whilst CG was staying at the appellant's home. CG was staying with the appellant for the weekend. (Charge 26 - Sexual Penetration of a Child Under 16)

(a) The appellant masturbated CG's penis at the appellant's home; (Charge 27 - Indecent Act with a Child under 16).

(b) The appellant sucked CG's penis whilst he was sleeping in the appellant's bed at the appellant's home. (Charge 28 - Sexual Penetration of a Child Under 16)

(a) The appellant masturbated CG's penis whilst CG slept in the appellant's bed; (Charge 29 - Indecent Act with a Child Under 16)

(b) The appellant asked CG to hold his erect penis whilst CG slept in the appellant's bed at the appellant's home; (Charge 30 - Indecent Act with a Child Under 16)

(c) The appellant sucked CG's penis whilst CG was sleeping with the appellant at the appellant's home. (Charge 31 - Sexual Penetration of a Child Under 16)

43 On 23 April 2010, the appellant masturbated CG's penis whilst CG was sitting on the foldout couch at the appellant's home. (Charge 32 - Indecent Act with a Child Under 16)

(a) The appellant asked CG to remove his pants and masturbated CG's penis whilst CG was sitting on the fold-out couch watching television at the appellant's home; (Charge 33 - Indecent Act with a Child Under 16)

(b) The appellant was in his lounge room with CG sitting on the couch in the lounge room at the appellant's home. The appellant moved to the couch where CG was sitting and asked to suck his penis. The appellant then sucked CG's penis whilst CG lay on the couch. (Charge 34 - Sexual Penetration of a Child Under 16)

45 Victoria Police executed a search warrant on 28 April 2010 at the appellant's address. The police then drove towards Echuca from the appellant's home and intercepted the appellant driving toward them on the Echuca Road. The appellant's car, person and mobile phone were searched and the appellant was found to be in possession of child pornography images on his LG mobile phone. The images had been downloaded from a website two weeks prior to his arrest by Victoria Police. (Charge 35 - Possess Child Pornography)

46 The appellant informed police that the male depicted in the images was CG.

47 On 28 April 2010, the appellant was in possession of an amount of cannabis and tobacco mix in a small container located on his coffee table and also a 'snap lock' bag containing cannabis located on a side table in the lounge room. (Charge 36 - Possess Drug of Dependence)

48 Between 1 January 2010 and 30 April 2010, the appellant was looking after JG and her two brothers at the appellant's residence. The appellant was sitting on his bed talking to JG. JG was lying on her back on the appellant's bed. The appellant put his hand down JG's skirt and then under her knickers and onto her vagina. The appellant commenced to rub JG's vagina whilst moving his fingers around. JG immediately got off the bed and left the room. JG did not stay over at the appellant's house again. (Charge 37 - Indecent Act with a Child Under 16) JG was aged nine at the time of this offence.

49 The appellant used the internet and Gigatribe to enable other persons to download and distribute child pornography via the internet. (Charge 38 - Using a Carriage Device To Make Child Pornography Available)[9]

50 The appellant used the internet through the use of Gigatribe to access and download child pornography from other users. (Charge 39 - Use a Carriage Service to Access Child Pornography Material)[10]

51 At the date of sentence, the appellant was a 37 year old piggery manager. He had a series of prior convictions but none for sexual offences and had not previously served a sentence of imprisonment.

52 A pre-sentence report from Dr Butt, a consultant psychiatrist, of 29 December 2010 records that the appellant grew up on a farm and that his childhood was difficult as a result of his father's alcoholism and physical abuse of the family.

53 The appellant left school in Year 9 after commencing to use drugs. He has worked in various aspects of farming since he was 17.

54 He had used cannabis since he was a teenager and prior to his imprisonment was consuming an average of four grams of cannabis daily. He was also consuming 90 beers and a bottle of bourbon in an average week.

55 He described a series of episodes of self-harm, including one whilst in custody.

56 He expressed feelings of regret and guilt towards the victims of his offending. He said that he had struggled to accept his identity as a homosexual man and believed that without this conflict he would not have engaged in the offending behaviour. He admitted he felt attracted to children because they were less likely to look down on him. He expressed a resolve to refrain from sexual offending in the future and a willingness to attend appropriate programs and engage in appropriate therapy.

57 Dr Butt made a primary diagnosis of dysthymia being a chronic depressive condition of less severity than a major depressive disorder. The appellant was not diagnosed with major mental illness and does not need treatment from mainstream public mental health services. Dr Butt also concluded that the appellant suffers from cannabis and alcohol dependence and that the appellant would benefit from referral to appropriate programs but may suffer an aggravation of depressive symptoms and an increased risk of suicide as a result of imprisonment.

58 Counsel for the appellant emphasised the following matters on his behalf:

• the fact that charges 10 to 21 and 23 to 34 were founded upon confessions volunteered by the appellant. As the Crown conceded to the sentencing judge, most of the offending before the Court was established as a result of the appellant's confessions;

• the appellant's remorse as evidenced by those pleas and the report of Dr Butt;

• the appellant's depressive condition and the consequences of that condition for him in terms of the effect of imprisonment;

• the appellant's willingness to engage in programs directed towards his rehabilitation reflected in the report of Dr Butt and further evidenced by the number of courses in which he had in fact participated since he went into custody;

59 It was further submitted on behalf of the appellant that the sentences imposed at first instance upon charges 11, 13 and 14 were excessive and that in consequence a lower sentence should be imposed as a base sentence.

60 It was also submitted that a lower non-parole period than was imposed was justified because of the factors set out above and in particular that 'super added leniency' was justified because of the appellant's co-operation with investigating police.

61 Counsel for the respondent submitted in essence that the appellant's offending was so serious that despite the mitigating factors relied upon on his behalf the total effective sentence and minimum non-parole period imposed by the sentencing judge were appropriate. Particular attention was drawn to the following aggravating features of the offending:

• the offences occurred when the appellant was caring for the complainants;

• the offences were not isolated and formed part of a lengthy course of offending;

• the complainants were within the power of the appellant;

• the appellant abused his position for motives of sexual gratification;

• the sexual abuse of CG occurred in association with the production of pornographic material for dissemination on the internet; and

• a significant number of offences occurred when the appellant was on bail.

62 The appellant's offending demonstrates a substantial ongoing sexual attraction to and interest in children. It also demonstrates a reprehensible lack of self-control. Whatever its causes, I am satisfied that the offending as a whole reflects a well-developed and significant aspect of the appellant's personality. The appellant's longstanding substance dependence must also give rise to significant doubts as to his capacity to materially adapt and change his behaviour.

63 In turn, the sentence which this Court imposes must reflect significant factors of specific deterrence and protection of the community, quite apart from considerations of denunciation and general deterrence.

64 I accept that each of the specific matters which counsel for the appellant has emphasised is relevant to the exercise of the Court's sentencing discretion. I also accept that the appellant's co-operation should be viewed as being of some real significance in a case of this type. In Doran[11] Buchanan JA (with whom Eames and Nettle JJA agreed) cited with approval the observations of Kirby J in Ryan v R[12] with respect to the public interest which attaches to pleas of guilty involving revelation of additional offences which it would be difficult to prove without confession and the importance of a public confession of wrongdoing so that victims may realise that they were wholly innocent. Kirby J further stated:

Unless persons such as the appellant are encouraged to bring unreported cases to notice, the likelihood is that, in the great majority of instances, such crimes will not be reported. They will therefore go unpunished. Accordingly, both from the point of view of society and of the victims of crime, there are strong reasons of policy why the law should encourage offenders to make full confessions. It should certainly not discourage them. Encouraging a full confession may also be an important first step in securing help for, and counselling of, the offender. This is likewise one of the objects of criminal punishment and thus of judicial sentencing.[13]

65 Nevertheless, in the present case the appellant must confront the gravity of the offences of which he has been convicted and the cumulative degradation of his victims inherent in them. Moreover, as I have said, the fact of extensive confessions is not sufficient, in the present case, to found on the balance of probabilities a conclusion of positive prospects of rehabilitation.

66 In addition, offences 23 to 34 occurred when the appellant was on bail and this must materially affect the benefit to which the appellant is entitled as a result of his subsequent confessions.

67 The sentencing judge plainly regarded the sexual offences against CG as comprising the most serious offending of which the appellant was guilty. I agree, but by dealing first with three offences of sexual penetration committed when CG was under 10 it appears that his Honour[14] treated the appellant as a serious sexual offender only with respect to the third of such offences. The proper approach, in my view, is to give effect to the serious sexual offender provisions by dealing with the offences in order of conviction. In the present case, that order reflects the chronological order of the offending and, in turn, the apparent purpose of the serious sexual offender provisions with respect to repeat offending.

68 In DPP v Grabovac,[15] Ormiston JA (with whom Winneke P and Hedigan AJA agreed) held that a sentencing court should not simply sentence back from a total effective sentence and fit components within that sentence. Further, a court should avoid imposing artificially inadequate sentences in order to accommodate notions of cumulation. Where practicable, in order to give proper effect to notions of totality and proportionality, it is preferable to achieve a satisfactory result by passing appropriate individual sentences and making those sentences wholly or partially concurrent, rather than by cumulating inappropriately reduced individual sentences.

69 The offending against DR occurred when he was between 11 and 14 years old. It occurred when the appellant was in a position of trust and had responsibility for the care and supervision of DR. Indeed, when DR slept overnight at the appellant's home, DR was effectively within his power.

70 There was a progression in the degradation of DR in the degree of masturbatory contact inflicted upon him.

71 The indecent acts comprised in charges 1, 2, 3, 4, 5, 6, 7, 8 and 9 involved attempted touching, touching and masturbation of DR's penis.

72 Having regard in particular to the need for weight to be given to considerations of general deterrence and specific deterrence in addition to protection of the community, I would impose sentences of 18 months' imprisonment on each of charges 1 to 9.

73 Insofar as CG is concerned, the offending comprised 11 charges of indecent acts and 11 charges of sexual penetration, together with one charge of procuring a minor for child pornography and one charge of producing child pornography. Three of the sexual penetration charges occurred when CG was under 10 (charges 11, 13 and 14). Five of the sexual penetration charges and seven of the indecent act charges related of offences committed when the appellant was on bail.

74 The offending involved the humiliation and degradation of CG extending to the smearing of cream used in the pig industry to assist the birthing of piglets, over CG's anus before penetrating him. The procuring and producing of child pornography involving CG further debased him.

75 There was progression in the degradation of CG from the infliction of indecent acts, to sexual penetration, to the use of CG for the purpose of the production of pornography and the infliction of indecent acts and sexual penetration for this purpose. Ultimately, the offending culminated in repeated offending when the appellant was on bail.

76 Once again, the offending constituted a gross breach of trust. It arose out of the abuse of the appellant's friendship with CG's father.

77 Much of the offending occurred when CG was staying overnight at the appellant's house where he, like DR, was effectively in the appellant's power.

78 It is submitted on behalf of the appellant that the majority of the offences against CG were evidenced only by admissions made by the appellant when interviewed by investigating police. I accept that the appellant's co-operation with police is a relevant factor but it falls to be assessed in the context I have set out above.

79 In all the circumstances, I would impose a sentence of 18 months' imprisonment in respect of charges 10, 12, 17 and 21.

80 I would impose four years' imprisonment in respect of charges 11, 13 and 14 (being the sexual penetration offences committed when CG was under 10). I would impose a sentence of three years' imprisonment with respect to the further sexual penetration charges 18, 19 and 20 and four years' imprisonment with respect to charges 23, 26, 28, 31 and 34 comprising sexual penetration offences committed when the appellant was on bail.

81 I would impose a sentence of 18 months' imprisonment with respect to charge 15 being a charge of procuring a minor for child pornography and 18 months' imprisonment with respect to charge 16 being a charge of producing child pornography.

82 I would impose a sentence of two years' imprisonment in respect of charges 24, 25 , 27, 29, 30, 32 and 33 involving indecent acts with a child under the age of 16 and committed when the appellant was on bail.

83 I would sentence the appellant to 12 months' imprisonment with respect to charge 35 relating to possession of child pornography images.

84 I would confirm the sentence of one month imprisonment on charge 36 in respect of possession of cannabis.

85 The offending relating to JG also involved a gross breach of trust in respect of a vulnerable child. JG was only nine at the time of this offence. I would impose a sentence of 18 months' imprisonment with respect to charge 37.

86 Insofar as the further pornography offences are concerned, the quantity of images and videos involved is significant. In R v Fulop,[16] Buchanan JA stated:

The evil at which the provisions contravened by the appellant is aimed is the production of the images by subjecting children and young persons to degrading exploitation. That exploitation exists to serve the demand created by those who gain access to and collect the images. The legislation aims to deter persons such as the appellant and thereby remove the demand which child pornographers supply. The appellant was to be punished not simply for his predilection to the material but rather for his pursuit of it. In this connection, I regard the length of time and the frequency with which the appellant obtained access to the images and the quantity of images which he collected, sorted and stored as the most significant aspects of his offending...[17]

87 In the present case, the appellant admitted using Gigatribe for the period of one year prior to his initial arrest. When his home was searched the software program was running allowing a transfer of files between users over the internet. On analysis, the appellant's computer equipment contained approximately 53,870 child pornographic images and 3,751 videos containing child pornography. I would sentence the appellant to two years' imprisonment in respect of the charge of possession of child pornography (charge 22). I would sentence the appellant to three years' imprisonment on charge 38 being a charge of using a carriage device to make child pornography available and three years' imprisonment on charge 39 being a charge of using a carriage service to access child pornography.

88 The appellant falls to be sentenced as a serious sex offender after sentences of imprisonment with respect to the first two offences under s 47(1) of the Crimes Act 1958. Thereafter the principal purpose for which the sentence is required to be imposed is protection of the community. In turn, s 6E of the Sentencing Act provides prima facie for sentences of imprisonment imposed on a serious offender to be cumulated. In R H McL v The Queen,[18] McHugh, Gummow and Hayne JJ stated of the predecessor to the current provisions:

Section 16(3A) gives effect to a legislative policy that serious offenders are to be treated differently from other offenders. It was plainly intended to have more than a formal effect, which is the effect it would frequently have if its operation was subject to the full effect of the totality principle. Given the terms of s 16(3A), the scope for applying the totality principle must be more limited than in cases not falling within that section. The evident object of the section is to make sentences to which it applies operate cumulatively rather than concurrently. The section gives the judge a discretion to direct otherwise. But the object of the section would be compromised and probably defeated in most cases if the ordinary application of the totality principle was a sufficient ground to liven the discretion. Since the relationship between s 16(3A) and the totality principle does not arise in this appeal, it is enough to say that sentencing judges need to be astute not to undermine the legislative policy inherent in s 16(3A) by applying the totality principle to the sentences as if that section (or s 6E which replaced it) was not on the statute book.[19]

89 The circumstances of the offending here in issue also reflect a need for some substantial cumulation. First, there were three victims. Secondly, the offending involved the progressive degradation of DR and CG and the sentence must reflect the progression of the appellant's offending. Thirdly, there was a further significant progression in the offending in that a substantial number of offences were committed whilst the appellant was on bail. Fourthly, the combination of sexual assaults and pornography offences gives rise to a complex of offending which has significantly different components requiring individual recognition.

90 In the present case, I would direct that the sentence in respect of charge 38, being the first of the Commonwealth offences, commence to be served on 24 January 2011, as did the sentencing judge.[20]

91 I would further order that the sentence in respect of charge 39, the second Commonwealth offence, commence to be served on 24 January 2012 in order to provide for some cumulation in respect of it. The two offences are quite distinct.

92 Section 19AB(3) of the Commonwealth Crimes Act provides that a court may decline to fix a non-parole period or make a recognisance release order in respect of a total effective sentence of three years or more 'if having regard to the nature of the offence or offences concerned or the antecedents of the offender the Court is satisfied that neither is appropriate.'

93 Whilst 'the antecedents of the offender' would embrace the history of offending for the State sentences for which he also now falls to be sentenced[21] and in a practical sense those sentences would render the fixing of a non-parole period in respect of the Commonwealth offences nugatory, nevertheless I am not satisfied that the statutory criteria justify the non-fixing of a non-parole period. Accordingly, I would fix a non-parole period of three years with respect to charges 38 and 39. The consequences of such an order are governed by s 19AM of the Commonwealth Crimes Act.

94 I would direct that each of the State sentences commence on 24 January 2013.

95 I would direct that one year of each of the sentences imposed on charges 13 and 14 be cumulated upon the sentence imposed in respect of charge 11 and each other.

96 I would direct that six months of the sentence with respect to charge 22 be cumulated upon the sentence imposed with respect to charge 11 and each of the above sentences.

97 I would direct that three months of each of the sentences imposed with respect to charges 18, 19, 20, 23, 26, 28, 31, 34 and 37 be cumulated upon the sentence imposed with respect to charge 11 and each of the above sentences.

98 I would direct that one month of each of the sentences imposed in respect of charges 1, 2, 4, 5, 7, 9, 10, 12, 15, 16, 17, 24, 27, 29 and 32 be cumulated upon the sentence imposed with respect to charge 11 and each of the above sentences.

99 The resentencing on the State offences is summarised in the table below:

[s 47(1) of the Crimes Act 1958]

10 years [s 47(1) of the Crimes Act 1958]

Sexual penetration of a child under the age of 16 [s 45(1) of the Crimes Act 1958]

25 years [s 45(2)(a) of the Crimes Act 1958]

Procuring a minor for child pornography [s 69(1) of the Crimes Act 1958]

10 years [s 69(1) of the Crimes Act 1958]

Producing child pornography [s 68(1) of the Crimes Act 1958]

10 years [s 68(1) of the Crimes Act 1958]

Possession of child pornography [s 70(1) of the Crimes Act 1958]

5 years [s 70(1) of the Crimes Act 1958]

Possession of a drug of dependence [s 73(1) of the Drugs, Poisons and Controlled Substances Act 1981 ('DPCSA')]

100 This results in a total effective sentence of 12 years.

101 It is necessary by reason of considerations of totality and proportionality to moderate the cumulation that might otherwise be imposed.

102 I would fix a non-parole period of seven years in respect of the State offences.

103 Like the sentencing judge, but for the appellant's pleas of guilty, I would have sentenced him to a total effective sentence of 15 years' imprisonment with a non-parole period of 12 years.

104 As stated above, I would direct that the sentences imposed in respect of the two Commonwealth offences commence on 24 January 2011 and 24 January 2012 respectively, and that the sentences imposed in respect of the State offences commence on 24 January 2013.

105 I would fix a non-parole period of three years with respect to the Commonwealth sentences and seven years from 24 January 2013 with respect to the State offences.

106 I would declare that the appellant has served pre-sentence detention of 884 days in respect of both the Commonwealth and State offences.

107 I would declare the appellant has been sentenced with respect to charges 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35 and 37 as a serious sexual offender and direct that such declaration be entered in the records of the Court.

108 I would confirm the following ancillary orders made below, namely:

• The declaration pursuant to s 34 of the Sex Offenders Registration Act 2004 that the appellant is a registrable offender and the length of reporting is Life;

• The forfeiture Order pursuant to s 78(1) of the Confiscation Act 1997;

• The forensic sample order pursuant to s 464ZFB(2) of the Crimes Act 1958.

[1] R v Fulop [2009] VSCA 296; (2009) 236 FLR 376, 378 [9]; Fasciale v R [2010] VSCA 337, [28]-[30].

[2] R v Wang [2009] VSCA 67, [10].

[3] See also s 16(1A)(c) of the Sentencing Act.

Offenders Registration Act 2004

Poisons and Controlled Substances Act 1981

S J v The Queen [2012] VSCA 237

At a glance

Court

Decision date

Before

Source

Judgment (194 paragraphs)

S J v The Queen [2012] VSCA 237 (28 September 2012)

Parties

Legislation Cited (3)

Cases Cited (1)