Salman v Director of Public Prosecutions

Court of Criminal Appeal (NSW)|2011-07-22|Before: Allsop P, Simpson J, Buddin J

Woods DCJ QC File Number(s): 2009/184699, 2009/232142

DVD 1 0:13:49 "[Moaning and laughing] [Y...], do you see, [C...], [O...] ... As I said, the grocer girl has come to me again. I am now in my room. I am going to wash and oil and lick her cunt today, my [Y...]. So, this is it. Mr [S...] do you see, she is 15 years of age. Mr [indistinct], brother-in-law, [S... A...], [M... K...], you all have a look, have a look, you come and live like this in Thailand. She is so beautiful, beautiful, look, look, look how she kisses ... see how she gives, look, one more. [Indistinct] You can't live like this. Good girl, oohh. She is only a child, a child, so small. We live with the likes of this. Mr [S...], Mr [F...], is there a punishment for this in the other world, is this sinful, have a look. ... 0:14:49 ... Beautiful, her eyes are so beautiful ... Do you see how, brother-in-law? Oh ... Oh ... darling. So ... very beautiful. This is how we live. We are in the room, like this. You come and live like this, the children, fuck the children, okay? Do you see brother-in-law [A...]. This is what life is all about. This is how one should live. Do you see? Brother-in-law, I am undressing her slowly, look at her eyes, beautiful eyes, do you see brother-in-law, beautiful eyes, [indistinct], I am undressing slowly, Mr [S...], [Y...] this is how, okay? Come and live like this here, like this in Thailand, okay? Ahha, look, this one is 15 years of age, okay, brother-in-law [A...]. 0:15:52 [S...], see how she licks, look [S...], [S... U...], [A... A...]. Good. [A... I... O...], [M... Y...], [A... I... O...], come and live. Look, chick, beautiful. Come here! You see, you see her height, her height, see where she comes up to, her height, look, see where her height comes up to? ... 0:16:49 Look at the breast, at the breast, brother-in-law, look, look, very beautiful, oh very beautiful [laughing] look, look, give me like this, give me, give me, give me, look, you should suck like this, look, look, you should suck like this. This is how you should suck the breast, look, brother-in-law, good, good. Good. [Singing]" DVD 2 "Welcome, ohho, [laughing]. [Y...], Mr [S...], do you see, this is my grocer girl. She has come today, today is the 5 th December 2007. Okay. She has come. You see, this is her mother. Mum, yeah, mum? Yeah, mum. This is her mother. [Y...], do you see, [V...], look, look, look. Ahha. She's got smaller, she has become small, she has become so little, look. Oh, beautiful, I will take her [to] Australia, okay? ... Do you see my girl? You see my girl, very beautiful. Nobody can fuck her kind. I have become a champion, look, look, look. ... Who? Let me see if you can fuck one like this. ... Fuck one like ... look, look, give me kiss." Said by another man: "Dear viewers, Father Osman fucks this 15 year old girl here, free of charge, regardless of her age, shamelessly, being a lesbian, being a paedophile ... ... This girl is 15 years of age. ... He gives her mum to the men younger than him and he fucks himself fucks the babies. Is there such a thing in law?" The applicant: "[V...] look ... [V...] you can crack with jealousy, you were making advances to a 10 year old. Die with jealousy. Look at her beauty ... beautiful. Okay? Good, good, good, good, good. [Music] Mum, your girl beautiful. Thank you very much you give me. Thank you, thank you. I take [to] Australia. [Indistinct] Okay? [Indistinct] Kiss too much [Laughs]. I am kissing her in her mother's presence, look. Oh, good girl, good girl. Very good ... very good ... I take [to] Australia. Baby. Look, look. We are doing the children. [Mr S...], greetings to you. The children, brother-in-law do you see, brother-in-law [A... S... A...] you too. Very beautiful ... Mum alright, she has brought this to me, the 15 year olds remains, Mr [S...] is she faulty, look? This is our Turkish restaurant, just opposite. We are in Thailand Pattaya, look there is our restaurant. Hah ... hah ... hah ... Good ... good ... good." The applicant dressed as a pilot: "... I will bring her to Australia. We are a pilot of course, so we are a pilot. That's how. When somebody is called a pilot, all the obstacles are overcome, we have affairs with 15 year old girls, Mr [S...], this is not a sin is it? [Y...], you do see, don't you, [C... O...], this is how. [V...], you die of jealousy, don't say 'I am a truck driver', say 'I am a pilot.' You see what piloting is? You see how ... beautiful. We are going to go soon. I am going to give mum to [H...] Beautiful mum. I am giving [H...] to her. Oh ... very beautiful. Look at her eyes. [Indistinct] I [indistinct] your eyes. Very beautiful. That's how." The applicant and others in a nearby restaurant: "So [H...], let's see, you've done it. I am letting you fuck my mother-in-law. [H...] okay. I am letting my mother-in-law fucked. Sit anywhere ... anywhere ... sit here ... no problem, okay, no problem. This light is okay. The light ... Do you see? [Laughs] Smart girl. Small, no. Okay, higher. Okay ... okay. Waitress good. Okay. I am [indistinct] today. ... [V...], look, this business is not for free. Feeding her first then I'll fuck her. Do you see, we are feeding her with all these? We are not feeding her with 10 baht worth of Thai food. Okay? Look, this is my mother-in-law. We are feeding them with 10 baht worth of Thai food. Do you see, [V...]? We are not feeding her with 10 baht worth of food, like you do. Okay? This is 350 baht. Okay, [V...], look. Okay? You should live with this kind but you should open up your wallet. Tell Australia and the wife and all to fuck off, come here, look, how polite she is. I am kissing in front of everybody, do you see? ... Now, I am the champion from now on ... since the last year. I got her when she was 15 years of age. The boys say 'You are the one. There is nobody like you in Thailand' [Y...] and all ... They say 'There isn't anybody' ..." The applicant back in a room with the girl: "Look, I am kissing her in the presence of her mother. Okay, good. Come on, play, I am giving my mother-in-law to [H...]. Good ... good. [Sings] Up ... up ... up ... up ... up ... up. Ahhaa .. Lovely girl, lovely, tiny. Still a child. Mr [S...] is this sinful, fucking her? [H...] will now fuck my mother-in-law and I will fuck this one. Come on, Mr [A... A... U...] greetings to you too, [A... U...]. We are fucking children. Never seen before, very beautiful. [Laughs] Do you see [V...], like this, we are now going to make love? Beautiful, give me ... give me. [V...], this is how I suck, look. Give me another one. This how I suck. [V...] Shove the money up your ass in Australia; shove it up your ass unless you suck the girls like this at 15. How do I suck, you see [V...], look. Mr [S...] look. Give me this one, the other one, look. I am kissing this one too, look. Very good ... very good ... very good ... very good. Okay? Give me. Okay, this is how you should suck. Look ... look ... look ... Stand ... stand up ... stand up. Do you see, you see the breasts, [V...]? Mr [S...], look at this. But, she is on her periods. Period ... yeah period ... bleeding ... bleeding, yeah ... period ... bleeding ... look ... look ... look. Look at her ass ... look ... look ... do whatever you like, [V...] come, come and make her sit on your lap. This is how you make her sit on your lap and suck the breast, look ... look, okay [V...]. Brother-in-law [A...]. ... Here ... look ... look ... the girl is hugging, you see ... look ... look ... look ... look ... look ... you see my brother [N...]? Look, this is how you kiss, look. This is how you suck; this is how, okay, look? Give the other one darling. I say (indistinct) and she gives that one too. This is how you suck. Look, this is how, look ... look. [Laughs] The girl's mouth developed into a wound by kissing. This is how you strip and do. This is life; this is how we live with the girls. Come and live, are you going to shove the money up your assess? Greetings to all the friends in Turkey, greetings to [M... K...] and everybody, okay, to the jeweller, to [Y...], to his father, greetings to everybody. [S... A...], this is how my friend, okay? ... Yeah [laughs] you see. The children ... So Mr [S...], this is how, this is how life is. Screw the ones there, the women in Australia. Our belly danger is dancing there. [H...] is fucking my mother-in-law upstairs. That's how ... This one is on her periods, we'll fuck her 3 days later." 17The statement of facts then dealt with count 2. The statement of facts commenced with the following paragraphs on this charge: "In January 2009, a member of the community made a report to the AFP about the Offender. He stated that the Offender would show him photographs of naked Thai girls from his wallet and told him that the photos were taken from his Thai trips and that he had sex with the girls. The Offender would say to him that the girls would start in ages from 13 to 15 years of age and were from villages surrounding Pattaya. On 12 August 2009, Customs Investigators contacted the AFP and informed them that a review of the seized DVDs contained footage of the Offender engaged in sexual acts with young girls, allegedly below the age of 16 years. Customs further stated that the footage is believed to be taken during the Offender's visits to Thailand. On 25 August 2009 AFP specialist members completed a review of the DVDs found in possession of the Offender on 29 April 2009. A review of DVD-R (DVD 2) identified the Offender with two other unidentified males in a small apartment accompanied by two females of Thai appearance. AFP specialist members determined that one of the females was approximately 14 to 15 years of age." 18The statement of facts then recited some individual statements from the interpreted transcript and provided a commentary of and extracts from the parts of the DVDs relevant to count 2, which can be found in the extracts set out above. 19The statement of facts recorded various admissions made by the applicant in September 2009: "- He identified the subject DVDs as being in his possession when he entered Australia on 29 April 2009;

He identified the DVDs as containing a selection of footage from his trips to Pattaya, Thailand;
During his trips to Thailand he met Thai girls at the Go Go Bar and he believed that the girls had to show identification to gain entry;
He had sexual intercourse with Thai girls, but denied having sex with girls under 16 years of age;
He confirmed he was the male person kissing a Thai girl's breasts as outlined [in the statement of facts]. He also confirmed he was the voice behind the camera on this occasion. He denied having sexual intercourse with the Thai girl. He further stated that he believed that the Thai girl was 19 years of age;
He stated that the footage was taken between 2008 and 2009 in Pattaya, Thailand;
He confirmed that the voice recording, both in English and Turkish was commentary spoken by him;
He stated that the comments made by him during the footage were made as a joke and he did not intend to act on them. He further stated that he made these statements as a result [of] an altered mental state due to consuming a number of prescription drugs for depression and high blood pressure..." 20As to the charge of possessing a foreign travel document not issued to the applicant, the statement of facts recorded: "The Offender stated to a Customs officer that the Thailand passport numbered [N...] belonged to his former girlfriend and it was in his possession for the purpose of buying her an air ticket and applying for a Turkish visa for Ms [P...]. He stated that he did not end up doing this because she had cheated on him and invited the Customs officer to throw it away. He further admitted that his former girlfriend did not know that he had possession of her passport. The photo of Ms [P...] shows that she is the same woman who appears in many of the Offender's DVD footages. A short while later, the Offender stated to another Customs officer that he had a fight with his girlfriend and he took the passport from her." 21It is to be understood that count 2 related to the kissing of the girl on the occasion when she had her top off, and not the other occasion when she had her top on and it was pulled down by the applicant. 22The charge concerning the false statement on the incoming passenger card related to a false declaration that the applicant was not "bringing into Australia goods that may be prohibited or subject to restrictions, such as medicines, steroids, firearms, weapons of any kind or illicit drugs", when in fact he was carrying seven flick knives. 23From the transcript of argument it would appear that the applicant, on arriving in Australia, also had DVDs containing images of sexual conduct by him with women apparently of adult years. 24The applicant did not give evidence. Material was tendered on his behalf, including a report of a consultant psychologist, Dr Jacmon and of a consultant psychiatrist, Dr Younan. Also tendered was material concerning his medical history and a DVD of his work history (the applicant apparently having a penchant for diarising aspects of his life on camera).

The remarks on sentence 25The sentencing judge briefly described the applicant: "The offender is a sixty-five year old Australian citizen of Turkish descent. He suffered some injuries while working in a metal factory and has received worker's compensation over the years. He had a car accident and received another injury. (There is objective evidence to support the claimed injuries.) He has a Centrelink disability pension and he has, from time to time, suffered from depression." 26His Honour referred to the applicant's travel to Thailand: "He has taken trips to Thailand and has lived there for various periods in recent years and while living there he appears to enjoy sex with, inter alios, various adult women. The bad back mentioned in various parts of the medical evidence appears not to be too have [sic] greatly impeded his sexual activities in Thailand. Not only has he had sex in Thailand, he has video taped at least some of these episodes." 27His Honour described the applicant's re-entry into Australia in April 2009: "On 20 April 2009 while returning to Australia (an exercise funded presumably from his Australian Government disability pension, unless he has some savings which do not appear obvious) he was searched by Customs officers. They found him to be in possession of a number of video recordings, particularly exhibit SB in these proceedings. As well, there are a number of videos of him having sex with adult women. The latter videos are not in evidence but they have been referred to without objection by the defence, presumably on the basis that they are inclined to suggest that his inclinations are not towards prepubertal children." 28The sentencing judge then described the content of the DVDs: "Exhibit SB shows the offender in Thailand with a pretty young girl who appears to be about fifteen years of age. While explaining in Turkish for the benefit of the camera what is going on (and presumably the Thai girl has little knowledge of Turkish) he kisses her repeatedly for the benefit of the camera. She cooperates with a show of what I confidently take to be feigned enthusiasm. He is pretending to be a rich Australian - a commercial pilot in fact, as evidenced by several items behind him in the room, a tie and a pilot's shirt with the appropriate epaulettes. He opens her blouse and fondles her breasts for the camera. He repeatedly sucks her breasts, grinning and making lascivious comments in Turkish for the benefit of others to whom he will, in due course, wish to communicate the images. One of the persons to whom he appears to wish to communicate the images is a brother-in-law. It is unnecessary for me to go through in detail the various obnoxious comments he makes - they are all set out in annexure B to tab 3 of exhibit SA. He appears to emphasise the fact that she is a fifteen-year-old girl. At a point timed as 9.29 in annexure B to the DVD he says, 'Do you see her beauty? Here is, I mean, my sweetheart undoubtedly. Okay, here is the chief pilot'. He goes on to say, 'I will move her to Australia. We are a pilot of course, so we are a pilot. That's how when somebody is called a pilot all the obstacles are overcome. We have affairs with fifteen-year-old girls Mr [S...]. This is not a sin is it?' He goes on to emphasise that he is pretending to be a pilot; this is impressing the young Thai girls and leads to his sexual success, if it could be so called. The exhibit continues and the location is changed to a restaurant where the offender buys a substantial meal for the girl and her mother. He says to the camera, 'Look, this business is not for free. Feeding her first, then I'll fuck her. Do you see we are feeding her with all these? We are not feeding her with ten baht worth of Thai food, okay. Look, this is my mother-in-law, we are not feeding them with ten baht worth of Thai food.' Then he goes on to say: 'This is 350 baht. Okay, [V...] look okay? You should live with this kind, but you should open up your wallet. Tell Australia and the wife and all to fuck off, come here, look how polite she is. I am kissing in front of everybody, do you see?' Although they are not ill-clad, the females in question are obviously Thai women of a class which finds itself open to manipulation for economic reasons. He explained for the benefit of the camera that the meal is not cheap but something substantial. His intention is to have sex with the young girl after the meal, but as it turns out he does not do so as the girl is menstruating at the time. The CD exhibits also contain images of two other females, possibly middle European, taken in circumstances unknown. He fondles the breasts of one of them who appears to be under eighteen years of age. That conduct is criminality within the child pornography offence, but the fondling of breasts of that Caucasian lass it not itself a separate offence - rather the image of it is part of the importing offence." 29The sentencing judge then described the contact that underpinned the charges under s 50BC(1)(a): "The proof of her age is not supplied by any birth certificate or statement from her mother; rather it appears throughout the transcript in exhibit SA that the offender wishes to emphasise his involvement with fifteen-year-old girls. He says at one point: 'Now I am the champion from now on, since the last year. I got her when she was 15 years of age. The boys say you are the one, there is nobody like you in Thailand.' At another point he says: 'Give me another one, this is how I suck, [V...]. Shove the money up your arse in Australia, shove it up your arse unless you suck the girls like this at 15' That is, it is from this offender's own mouth that the girl is aged fifteen. I accept this as fact, noting that it accords with the images." 30His Honour then turned to Dr Jacmon's report dealing with the applicant's history, industrial accidents, depression, chronic pain, marriage break-up and what the applicant told Dr Jacmon of his experience in Thailand, which Dr Jacmon reported as follows: "In Thailand he experienced a welcome change to his mood. His depression and anxiety lifted and he gave up his medication. He visited various tourist venues and enjoyed himself. He had to leave Thailand after each month to renew his visa and hence gained some familiarity with the surrounding countries. In Thailand he stayed in Pattaya. He was saddened to see many impoverished children in the street and by contrast rich tourists spending money freely in bars and entertainment venues. He developed the habit of giving money to children begging in the streets. He travelled to Thailand a number of times until his arrest in April 09." 31His Honour commented upon this in strong terms: "Frankly it is difficult to see this as anything but humbug. It is unsupported by sworn evidence of the offender and seeks to cast him as a philanthropist intent on doing social good for the poor and downtrodden of East Asia. This is frankly delusional, not least in the implied anticipation that a court might believe it. The facts are that Mr Osman Salman was managing, through unexplained financial resources, to live a life of geriatric debauchery quite at odds with the slightest social concern. I set this self-promotional material aside as unhelpful, except as a pointer to the offender's true character as a man willing to stoop to even the most laughable of falsehoods. 32His Honour recognised that the applicant had no prior convictions but said that the misconduct could not be viewed as a "one-off" or an aberration, saying: "... Nonetheless, his misconduct here cannot be viewed as a 'one-off' or an aberration. As I have said, the video, exhibit SB, also includes images of two Caucasian woman [sic], one a girl whom the offender gropes in the breast area. I reject the notion that Mr Salman's conduct, as viewed in exhibit SB and as translated in exhibit SA, is that of a neophyte in this field of offending ... In exhibit SB the offender appears happy, boastful and in control. He appears to be delighted to have a beautiful fifteen-year-old girl in his grip, literally. She going through the motions of amorous response as if he were some twenty year-old film star, rather than a dirty old man. He is ecstatic. Depression is the least emotion the offender displays. Any connection between a history of misfortune with accidents, chronic pain, depression and these offences is not apparent to me. We are left essentially with the video and the translation from it as the central evidence." 33The sentencing judge then turned to the seriousness of the offence, saying: "No doubt there are worse such videos, showing the violation of five year olds and graver crimes. I accept this. The single strongest point in the accused's case is that the girl was fifteen, not five or eight. The injury she suffers from this offence is not of an infant, but that of a teenager on the cusp of womanhood. The damage to her will presumably be less than it may have been had it been imposed upon a pre-pubertal child. Nonetheless the injury will be real. To watch the video is to see a beautiful child under duress, compelled by economic and social misfortune to 'agree' to sex with an apparently wealthy foreigner, large, old and hairy. Her person is violated, since she gives no greater real consent than that of a bank teller handing over money at gunpoint as he gropes her and sucks her breast. Furthermore the image of this violation is captured on film or video, possibly to be circulated ad infinitum. His words were addressed to some unidentified but presumably real person, and were intended to be communicated to at least one other, and presumably to more than one. Worst of all, in my view the conduct is calculated to inflict the injury of hardening this girl so as to make her callous and disregarding of human decencies. This is a sorry burden for anyone to bear whether they live in Sydney or in Thailand. It follows that the age of the girl as fifteen rather than as an infant is the offender's strongest point, impressed on me by Mr Smith. It is his best point, but it is not all that good. The girl of the age she is comes within the protection provided by the relevant statute... The injury inflicted by such crimes is primarily to the victim, but it is also to the international standing and reputation of Australia. This is a crime based on an extra territorial jurisdiction claimed by Australia. Historically such jurisdiction is unusual. For reasons of international policy and comity, many nations have historically been reluctant to attempt to punish misbehaviour beyond their own boundaries. Australia does not claim jurisdiction to punish the generality of crimes committed overseas. The legislation we are now dealing with reflects the phenomenon known these days as globalisation. The Australian parliament has recognised that in an era of cheap air travel citizens will sometimes go overseas and will sometimes seriously misbehave, and that crimes such as the present ones committed overseas by Australians can bring disgrace and disfavour to Australia and its interests. The parliament of Australia does not criminalise [sic] its own citizens for most of the criminal misbehaviours which they commit in other countries. The law says that this is a special category of cases. Our national laws do not inhibit our citizens from lawful sex in other countries, but recognise that a particular national disgrace ensues when Australian citizens travel overseas and victimise economically vulnerable children. The parliament of Australia does not tolerate its citizens travelling abroad and defiling the children of our neighbour countries." 34His Honour then remarked on the comparative criminality in the two primary offences (s 233BAB and s 50BC): "In my view, the criminality involved in the two offences (to which there has been a plea of guilty) is approximately equivalent. I have identified and spelled out the impact upon the child herself of the indecency misconduct, that is to say, the physical indecency. The criminality of the creation of the film lies in the tendency of such activity to popularise the sexual predation involved. Sometimes the importation of child pornography will be quite separate from any proof of physical misconduct by the importer. But even where there is no such physical misconduct by the importer himself, the very potential for promulgation and distribution of the film itself contributes to this unacceptable overseas conduct. As I say, it seems to me that the penalties for each of the two matters should be roughly equivalent." 35The sentencing judge took into account the applicant's family, absence of prior convictions, guilty plea and assistance to the authorities. This did not, however, in his Honour's view, reflect contrition.

The appeal 36The only ground of appeal is that the sentence was manifestly excessive and that a lesser sentence is warranted in law. 37The disagreement on the submissions focussed upon two matters: (a) the proper assessment of the criminality involved in counts 1 and 2; and (b) what could be taken from other sentences for similar offences. 38Further, the Court raised the question whether there was likely to have been a degree of double counting necessarily reflected by the two offences attracting the same punishment (four years), even taking into account the fact that the additional offences on the schedule under the Crimes Act , s 16BA related only to count 1, the offence under s 233BAB. 39No complaint was made about the sentence in respect of the matter on the certificate under the Criminal Procedure Act , s 166.

The charges 40It is first necessary to say something about the charges. The offence of importation of tier 2 goods contrary to s 233BAB(5) applied in this case only because the DVDs were "items of child pornography" for s 233BAB(1)(h) as provided for by the Regulations or other parts of s 233BAB. 41The nature of the offence under s 233BAB(5) is not to be taken only from the general expression "child pornography" with such connotations as may flow in contemporary society from that phrase, but rather, in substance, from the definitions made relevant by the Customs Act and Regulations. The statement of facts to which the applicant pleaded guilty identified the substance of the charges as follows: in respect of the images: s 233BAB(3)(b)(iii); and in respect of the audio content: reg 4A(1A)(b) (by the combined effect of reg 179AA(3) and Pt 2 of Sch 1AA, item 3 of the Customs Regulations 1926 (Cth) and s 233BAB(3)(c)(i) of the Customs Act ). 42Thus the plea was to the effect that the applicant intentionally imported goods (the six DVDs) that were tier 2 goods and was reckless as to that fact and that importation was prohibited. The facts underlying the conclusion that the goods were tier 2 goods were that: (a) as to the visual images, the DVDs were goods the dominant characteristic of which depicts for a sexual purpose the breasts of a female person who is or appears to be under 18 years of age in a manner that reasonable persons would regard as offensive (s 233BAB(3)(b)(iii)); (b) as to the audio content, the DVDs were goods that describe in a way that is likely to cause offence to a reasonable adult, a person who is, or appears to be, a child under 18 (whether the person is engaged in sexual activity or not) (reg 4A(1A)(b)); and (c) further as to the audio content, the DVDs were goods that describe a person who is, or is implied to be, under 18 years of age and who is engaged in, or is implied to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons) (s 233BAB(3)(c)(i)). 43As I have said, the charge under the Crimes Act , s 50BC was only in respect of the acts done while the young Thai female had her top removed and was sitting on the edge of the bed. The charge did not involve the applicant doing anything else.

The sentences in question 44The head sentences of four years were imposed by his Honour after taking into account the pleas of guilty, albeit it was common ground that the pleas were not made at the earliest opportunity. Nevertheless, the pleas obviated the need for proof beyond reasonable doubt of the age of the girl. That may not have been of considerable difficulty for count 1 (under 18), but it may have been for count 2 (under 16), notwithstanding the applicant's statements on the DVDs. The pleas were therefore of relevance and benefit in the administration of justice. Those pleas, together with the lack of prior convictions, though taking into account the relatively minor matters taken into account under the Crimes Act , s 16BA, meant that the starting point for the sentences for counts 1 and 2 was somewhat above four years. 45This places these offences about half-way along a spectrum of the worst offence that might attract 10 and 12 years' imprisonment for counts 1 and 2 respectively. I put the matter in this way to avoid using a very broad expression such as "mid-range". Care needs to be exhibited not to substitute for the proper assessment of the facts and the evaluation of the appropriateness of the sentence in accordance with the Crimes Act , s 16A, a syllogism based on labels such as might be reflected by the following: if four years plus is "mid-range", and the offence was "mid-range" in seriousness, the sentence is therefore "within the range". This is both a short and misleading calculus. Of course, there must be an assessment of the objective gravity of the offence. This is to be done in accordance with s 16A. All the circumstances must be assessed, including those matters in s 16A(2).

The s 233BAB offence 46The applicant referred to the list of factors relevant to the objective seriousness of offences of possession or importation of child pornography in R v Gent [2005] NSWCCA 370; 162 A Crim R 29. That case concerned s 233BAB(5). Johnson J (with whom McClellan CJ at CL and Adams J agreed) discussed the history of the provision at 36-37 [29]-[32]. Johnson J then noted that the Court of Criminal Appeal in Western Australia in Assheton v The Queen [2002] WASCA 209; 132 A Crim R 237 (Malcolm CJ, Murray J and Steytler J agreeing) and in Holland v The Queen [2005] WASCA 140; 30 WAR 231 and the Court of Appeal in Queensland in R v C; Ex parte Attorney-General (Qld); R v C; Ex parte Director of Public Prosecutions (Cth) [2004] QCA 469 considered the relevant sentencing principles applicable to offences under s 233BAB(5). From these cases, it can be taken that a range of factors bear upon the objective seriousness of the offence, including the nature and content of the material informing the degree of "offensiveness" of the material, the age of the child, the gravity of the sexual activity, the number of images, whether the importation is for sale or further distribution and whether the importation is for profit. 47Further, the offence is a serious one and one for which deterrence, both general and specific, is of great importance. The protection is for both society as a whole and children in particular. 48Here, counsel for the applicant emphasised that the girl was 15 and not of a very young age, she is only ever in a state of partial undress, the sexual act is sucking her breast, there is nothing in the way of sadism, or cruelty or bestiality, the duration of the DVDs are 3 to 15 minutes with only 9 minutes relating to physical contact, the videos were plainly not for sale (but it was accepted that it could be reasonably inferred that they were to be played or distributed to a limited group of acquaintances). Counsel for the applicant also submitted that the length of time involved in accessing, storing and classifying the pornography was an inapt and irrelevant consideration. 49The Director referred to the recent decision of R v Dennison [2011] NSWCCA 114 in which the Court (Schmidt J, with whom Whealy JA and McCallum J agreed) discussed many of the authorities on child pornography (though not in the specific context of s 233BAB) and in particular the recent review of the same subject by Hulme J (with whom Macfarlan JA and Johnson J agreed) in Minehan v R [2010] NSWCCA 140; 201 A Crim R 243. There, Hulme J said at 260-261 [94]-[95]: "[94] Drawing primarily from the authorities to which I have referred, the following matters may be relevant to an assessment of the objective seriousness of offences involving the possession or dissemination/transmission of child pornography:

Whether actual children were used in the creation of the material.
The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed.
The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material.
The number of images or items of material - in a case of possession, the significance lying more in the number of different children depicted.
In a case of possession, the offender's purpose, whether for his/her own use or for sale or dissemination. In this regard, care is needed to avoid any infringement of the principle in R v De Simoni (1981) 147 CLR 383.
In a case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted.
Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination/transmission.
The proximity of the offender's activities to those responsible for bringing the material into existence.
The degree of planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating or transmitting the material.
Whether the offender acted alone or in a collaborative network of like-minded persons.
Any risk of the material being seen or acquired by vulnerable persons, particularly children.
Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted.
Any other matter in s 21A(2) or (3) Crimes (Sentencing Procedure) Act (for State offences) or s 16A Crimes Act 1914 (for Commonwealth offences) bearing upon the objective seriousness of the offence. [95] This list of factors is, of course, not closed. Individual cases may always produce further matters relevant to the assessment of their objective seriousness." 50The Director also relied upon what had been said in R v Oliver [2003] 1 Cr App R 28 at 467 [11] as to a "scale" of seriousness: "(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." 51Oliver was relied on in Minehan . 52All these cases are no doubt helpful discussions of the essentially evaluative assessment involved. They are not to be taken as listing prescriptive schedules, with elements to be counted. They helpfully collect and discuss, however, the kinds of considerations relevant to the evaluative process. The place of the applicant as the creator of the film and as an actor is relevant. He is not, however, to be punished twice for the act of indecency. The sexual acts were not violent, cruel or depraved. No physical harm was inflicted. The acts were in the presence of others. No apparent commercial motive was involved. 53It is important to appreciate that the applicant was not charged with any of the acts that he said he would do or had done with the girl, as identified in the passages marked with an asterisk. These passages are relevant as statements that assist in the evaluation of the "offensiveness" of the material. They may also assist in drawing a conclusion that the applicant should not be sentenced on the basis that this is an isolated offence or an aberration. He is not, however, to be sentenced for doing (if he did) what he said he would do or had done. 54Giving full weight to the importance of general and specific deterrence, taking into account the matters under s 16BA and all the matters considered by the sentencing judge, and considering the kind of material that could be covered by the offence, I am clearly of the view that a term of imprisonment of four years was manifestly excessive. Giving due weight to all the factors mentioned by the sentencing judge, all the circumstances of the offence, evaluating the degree of offensiveness from the nature of the material, the matters in s 16A(2) and recognising the importance of general and specific deterrence, I would impose a sentence of two years' imprisonment.

The s 50BC offence 55The applicant relied on R v Wicks [2005] NSWCCA 409 at [39] (McClellan CJ at CL, Adams J and Hoeben J agreeing) in his Honour's identification of factors relevant to sentencing for child-related sexual activities: "[39] The decisions of appellate courts make plain that there are a number of common elements when sentencing offenders for child related sexual offences. General deterrence is of paramount importance ( R v Levi (1997) unreported, NSWCCA, 15 May 1997, R v D (1997) 69 SASR 413; R v AJW (2001) 80 SASR 246; Bell v R [2001] WASCA 40). Any abuse of a position of trust is considered to be an aggravating feature. Other relevant factors in sentencing for this type of offence include the type of conduct committed, the number of victims (see R v LLK (2003) 146 A Crim R 1), the number of occasions on which the offending occurred, the period of time over which the offending occurred and whether the offending was part of a course of conduct (see R v H [2001] NSWCCA 117)." 56Two other cases were referred to by way of comparable sentences: Assheton and Sage v R [2007] NSWCCA 224. 57It can be accepted that the proper use of sentences in other cases is as described by Simpson J in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 273 ALR 324 at 388-389 [303]-[305] (approved by the plurality in Hili v R; Jones v R [2010] HCA 45; 272 ALR 465 at 479 [54]). Using the cases referred to by way of assistance and as a yardstick, bearing in mind all the comments and findings of the sentencing judge, taking into account the circumstances of the offence and the matters in s 16A(2) and giving full weight to general and specific deterrence, I cannot but conclude that four years' imprisonment was manifestly excessive. 58I fully appreciate that doing different sexual acts listed in s 50AC as part of the definition of "sexual intercourse" would take the offence into ss 50BA and 50BB carrying a maximum penalty of 17 years. The seriousness of the acts that do fall within s 50BC must, nevertheless, be evaluated. 59The acts lasted for some minutes. The girl was 15 years old. There can be concluded to have been a degree of predation in that the women involved are, to use the words of the sentencing judge, "of a class which finds itself open to manipulation for economic reasons". That is reinforced, perhaps, by the presence of the mother. The nature and circumstances of the offence cannot, in my view, be characterised as of the most serious kind; nor, however, was the offence trivial. It was an offence of some seriousness within s 50BC. It is not to be viewed as isolated or an aberration. Taking into account the above matters, all the factors referred to in Wicks , the factors in s 16A, in particular the important, indeed paramount place of general deterrence, and for this applicant specific deterrence, and taking into account the age of the applicant, his ill-health, the absence of any prior criminal history and his plea of guilty, I am unable to conclude other than that four years' imprisonment was manifestly excessive. In my view, a sentence of three years and three months fully reflects the criminality involved and is the sentence that is appropriate in all the circumstances. 60I would accumulate the sentences by six months. I would set a non-parole period of two years and six months. 61In conclusion, these sentences, in my view, amply reflect the level of criminality involved and the important considerations of specific and general deterrence, in the context of pleas of guilty from a man over sixty with no prior criminal convictions. 62The orders that I would make are:

Grant leave to appeal.
Allow the appeal.
Set aside the sentences imposed on the applicant by the District Court on 23 July 2010 and in lieu thereof sentence the applicant as follows: (a) On count 1, and taking into account the additional offences which appeared on the schedule pursuant to the Crimes Act , s 16BA, the applicant is sentenced to a term of imprisonment of two years to commence on 1 July 2010 and to expire on 30 June 2012. (b) On count 2, the applicant is sentenced to a term of imprisonment of three years and three months to commence on 1 January 2011 and to expire on 31 March 2014. (c) A non-parole period of two years and six months is fixed, the applicant thereby being eligible for parole on 31 December 2012. (d) As to the matter under the Criminal Procedure Act , s 166 the applicant is sentenced to imprisonment for three months to commence on 1 July 2010. 63SIMPSON J : I have read in draft the judgment of Allsop P. I am unable to agree that the sentences imposed were (or either of them was) manifestly excessive. Since no other specific error was propounded, it follows that, while I would grant leave to appeal, I would dismiss the appeal. 64It is unnecessary to restate the facts and circumstances of the offences, or the complicated legislative regime under which the applicant was judged and sentenced. I can therefore state my position with relative brevity. 65I bear in mind what the President has said at [45]. However, it is always necessary to make an assessment of the objective gravity of the offence in question. Objective gravity can be measured against the range of conduct that falls within the legislative provision that creates the offence. 66In the case of the Crimes Act 1914 offence, of committing an act of indecency on a person under the age 16, that legislative provision was s 50BC, prescribing a maximum penalty of imprisonment for 12 years. What is important is that an "act of indecency" is defined in s 50AB as follows: " ... an act that: (a) is of a sexual nature; and (b) involves the human body, or bodily actions or functions; and (c) is so unbecoming or offensive that it amounts to a gross breach of ordinary contemporary standards of decency and propriety in the Australian community." To avoid doubt, subs (2) specifies that an act of indecency includes an indecent assault. 67In my opinion, recognition of the range of conduct that could come within that description demonstrates that the objective gravity of this offence was high. There exists a range of conduct well below what is illustrated in the DVDs that would constitute an offence under s 50BC. 68It is also relevant to have regard to the other offences created by Pt IIIA of the Crimes Act , of which s 50BC is a part. They include engaging in sexual intercourse with a person under the age of 16 (s 50BA), and inducing a person under the age of 16 to engage in sexual intercourse with a third person (s 50BB). Each of these offences carries a maximum penalty of imprisonment for 17 years. What is informative, for present purposes, however, is the definition of "sexual intercourse", since that establishes the boundaries of conduct that constitute a more serious offence than the s 50BC offence. By s 50AC, "sexual intercourse" is defined as: "(a) the penetration, to any extent, of the vagina or anus of a person by any part of the body of another person; or (b) the penetration, to any extent, of the vagina or anus of a person, carried out by another person by an object; or (c) fellatio; or (d) cunnilingus; or (e) the continuation of any activity mentioned in paragraph (a), (b), (c) or (d)." 69I find it difficult to envisage sexual conduct more serious than that in which the applicant engaged that would not come within that definition. That persuades me that the conduct here in question was of the most serious kind contemplated by s 50BC. 70While I accept, as the President has said, that the offence itself was constituted by the kissing of the victim's breasts, I do not accept that the surrounding circumstances are irrelevant. This was a sustained act of indecency, accompanied by lascivious and predatory commentary. The exercise of power is clearly depicted on the DVD recording. 71Against that, and in favour of the applicant, is the age of the victim, 15 years. In my opinion Woods DCJ was correct to treat this as the circumstance most favourable to the applicant in terms of the assessment of objective gravity. Of course, the younger the victim, the more serious the offence. 72Other relevant circumstances, those referred to in s 16A of the Crimes Act, pertaining to the sentencing exercise were the age of the applicant, his relative ill-health, the absence of any prior criminal history, and, of course, his plea of guilty. Those are the reasons that the sentence imposed was one third of the maximum prescribed. 73It is rather more difficult to measure the Customs Act 1901 offence, of importing prohibited material, against the range of conduct that falls within the offence, which carries a maximum penalty of imprisonment for 10 years. Anecdotally, one hears or reads of pornography of a vastly greater degree of depravity than the DVDs here in question. I am prepared to accept that these DVDs were not high on that scale of depravity. It is, however, relevant that there were two different DVDs, each replicated twice (a total of three of each). 74In my opinion, the sentence imposed in respect of the Customs Act offence was, by reference to its objective gravity, relatively severe. But bearing in mind the strictures pronounced in Lowndes v R [1999] HCA 29; 195 CLR 665, at [15], I am unable to conclude that it was outside the legitimate range of sentences available. 75I would grant leave to appeal but dismiss the appeal. 76BUDDIN J: I agree with Allsop P.

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: 23 August 2011

Crimes (Child Sex Tourism) Amendment Act 1994(Cth)

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Judgment (10 paragraphs)

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Legislation Cited (8)

Cases Cited (16)