SIVELL, Andrew John v R

Court of Criminal Appeal (NSW)|2009-09-30|Before: Fullerton J, Schmidt J, Clellan CJ

The applicant's prior criminal history 18 The applicant has an extensive criminal history in both New South Wales and Queensland. A detailed chronology of his offending was tendered in the sentencing hearing by consent. All of his prior sexual offending related to female children. 19 He was first sentenced to a term of imprisonment in Queensland in September 1999 for two offences of indecent treatment of a child under the age of 16 years. Each offence involved approaching a child in the vicinity of a shopping centre and taking photographs of the children with their genitalia exposed. He next offended in New South Wales in January 2001 when he committed an aggravated indecent assault upon a child aged 10 or 11. On that occasion he posed as a medical practitioner and gained entry to the child's home while she was home alone. The child was asked to remove her clothing whereupon she was touched twice near the vagina on the pretext of the applicant performing a medical procedure. This offence was taken into account when the applicant pleaded guilty in 2002 to a further offence of aggravated act of indecency committed in July 2001. On that occasion he indecently assaulted an 8 year old child who was waiting outside her unit block for her mother to return from work. On 19 June 2002 the applicant was sentenced to 4 years imprisonment with a fixed non-parole period of 2 years. He was not released on parole until April 2005. His appeal against sentence was dismissed by this Court on 17 March 2003. 20 In 2006, as a consequence of his prior convictions in this state, the applicant became a registrable person within the meaning of the Child Protection (Offenders Registration) Act 2000 and was included on the Child Protection Register. 21 I have already noted that the applicant was sentenced to imprisonment in December 2007 for contravention of the interim prohibition order issued under the Child Protection (Offenders Prohibition Orders) Act in March 2007. In December 2007 a final prohibition order was imposed for a period of 5 years. He remains subject to that order. The applicant's subjective circumstances 22 Her Honour noted that the applicant was 44 years of age at the time of sentence. A pre-sentence report was tendered which detailed the applicant's family, relationship, education and employment history. In the report the applicant maintained he was innocent of the charge of possessing child pornography despite the verdict of the jury. He also denied his guilt in respect of the prior offences involving children as reflected in his criminal record and was recorded as unwilling to participate in goal based sex offender programs or to provide a referral to enable the Department's Forensic Psychology Service to prepare a current assessment of his risk of offending. The applicant gave evidence directed to addressing what he claimed were inaccuracies in the pre-sentence report concerning these matters. Her Honour gave consideration to his sworn evidence but nevertheless considered the applicant's prospects of rehabilitation were poor. There was no challenge to that finding. 23 The applicant provided assistance to the authorities which was considered by her Honour in accordance with s 23 of the Crimes (Sentencing Procedure) Act. Although she generally described the assistance as of little or no utility she allowed a discount of 8 per cent in the calculation of sentence. There was no challenge to that finding.

Ground One: Her Honour erred in finding that the offence was committed in circumstances of aggravation by reason of his contravention of the interim prohibition order whether as a matter of statute under s 21A of the Crimes (Sentencing Procedure) Act 1999 or at common law

24 In concluding that the pornography offence was aggravated by the fact that the applicant was subject to an interim prohibition order when he was found in possession of the pornographic material, her Honour said: "It is the position that I am of the view this is a matter which falls under s 21A(2)(j) of the Crimes (Sentencing Procedure) Act 1999: "21A(2)(j) the offence was committed while the offender was on conditional liberty in relation to an offence or an alleged offence." Even if I am wrong in this view the common law principle remains applicable given that s 21A does not purport to codify the law in this area …. Even if the commission of this offence while subject to the interim order does not constitute the statutory aggravating factor, it would constitute an available aggravating factor at common law." 25 The applicant submitted that although the express terms of the interim order operated to prohibit him from engaging in certain specified conduct, namely contacting any person under the age of 18; actively seeking or remaining in the company of a person under the age of 18; engaging in telecommunications with any person under the age of 18 or communicating with any person under the age of 18 either directly or indirectly, the order neither expressly nor impliedly prohibited the particular conduct inherent in his possession of child pornography. 26 The imposition of prohibition orders against a registrable person under the Child Protection (Offenders Prohibition Orders) Act are, by s 5 of the Act, directed to prohibiting conduct that poses a risk to the lives or sexual safety of one more children, or children generally. For the purposes of the Act a person poses a risk to the lives or sexual safety of one or more children or children generally, if there is a risk that the person will engage in conduct that may constitute a registrable offence against or in respect of a child or children. Registrable offence has the same meaning under the Child Protection (Offenders Prohibition Orders) Act as under the Child Protection (Offenders Registration) Act and includes a contravention of s 91H of the Crimes Act. 27 The prohibition orders are protective in nature and are designed to achieve the statutory objective of protecting the lives or sexual safety of children by imposing conditions on the liberty of a person with the status as a registrable person, thereby effectively preventing that person from associating with children and providing for criminal sanctions, inclusive of imprisonment, if those conditions are breached. In my view, the position of an offender who is to be sentenced for a child sexual offence or other registrable offence committed while s/he was subject to an order under the Child Protection (Offenders Prohibition Orders) Act is analogous to an offender who is to be sentenced for an offence of violence where the victim of the offending was designated as a person in need of protection under an apprehended domestic violence order imposed pursuant to s 16 of the Crimes (Domestic and Personal Violence) Act 2007, and where the offender was the person whose liberty was subject to certain non-association provisions under such an order. In my view, offenders in both categories are comparable to an offender who is subject to a good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act or a suspended sentence under s 12 of that Act, in the sense that they are subject to a court order requiring that they conduct themselves in designated ways. While there is a distinction between the consequences of a breach of an order under the Crimes (Sentencing Procedure) Act (or a breach of parole) and a breach of an order under the Child Protection (Offenders Prohibition Orders) Act, in that the commission of a criminal offence while subject to the court's sentencing order (or a breach of parole) renders the person liable to be sentenced (or imprisoned) both for the offence giving rise to the breach and for the original offence, while breach of the court order under the Child Protection (Offenders Prohibition Orders) Act is an offence in itself, I do not consider the distinction to be material for present purposes. 28 In addition, in my view, it is not to the point that the terms of the interim prohibition order to which the applicant was subject did not specify that he must not possess child pornography. I note that none of the child specific sexual offences in the Crimes Act (NSW), or offences under the Crimes Act (Cth) where the person against whom the offence is committed is a child, and which are nominated as registrable offences for the purposes of both of the Child Protection Acts under consideration, are specified in the order as prohibited conduct. Self evidently, a breach of s 91H(3) or an equivalent or similar breach of a provision under the Commonwealth Act, constitute discrete offences and do not require specific nomination to achieve the legislative purpose under the Child Protection (Offenders Prohibition Orders) Act. Simpson J's observations in R v Booth [2009] NSWCCA 89 are eloquent of the wider social and political context in which offending against s 91H(3) of the Crimes Act occurs and the damage done to children who are exploited by the purveyors and possessors of pornographic material: "[41] In sentencing for such a crime, it is well to bear firmly in mind that the material in question cannot come into existence without exploitation and abuse of children somewhere in the world. Often this is in underdeveloped or disadvantaged countries that lack the resources to provide adequate child protection mechanisms. The damage done to the children may be, and undoubtedly often is, profound. Those who make use of the product feed upon that exploitation and abuse, and upon the poverty of the children the subject of the material.

[42] What makes the crime callous is not just that it exploits and abuses children; it is callous because, each time the material is viewed, the offender is reminded of and confronted with obvious pictorial evidence of that exploitation and abuse, and the degradation it causes.

[43] And every occasion on which an internet child pornography site is accessed (or when such material is accessed by any means at all) provides further encouragement to expand their activities to those who create and purvey the material."

29 For my part, I can see no justification in treating a breach of a bond, suspended sentence or breach of parole for the purposes of s 21A(2)(j) of the Crimes (Sentencing Procedure) Act any differently from a breach of an order under the Child Protection (Offenders Prohibition Orders) Act, or for that matter, a breach of an apprehended violence order under the Crimes (Domestic and Personal Violence) Act. While in the former category conditional liberty has clearly been granted to an offender "in relation to an offence or alleged offence", thereby attracting the operation of s 21A(2)(j) by that designation, in the latter category the conditions on the person's liberty have been imposed with the object of protecting against the risk of offences of a particular kind being committed where the potential victim is in position of vulnerability by age, in the case of the child protection legislation, or vulnerable by their social or domestic circumstances in the case of women or others at risk of personal violence.

30 I draw support for this view, as did the sentencing judge, from the observations of Johnson J in Porter v R [2008] NSWCCA 145. In that case his Honour had occasion to consider whether an offence committed whilst subject to a good behaviour bond but imposed for an offence which did not provide for imprisonment, was committed while the offender was subject to conditional liberty as provided for s 21A(2)(j). His Honour did not consider that the term "conditional liberty" in the section was confined to circumstances where the foundational crime must be punishable by imprisonment. He took the view that the operation of the section embraces the common law principle that an offence committed whilst a person is subject to an order of the court to be of good behaviour is the aggravating conduct for sentencing purposes. His Honour went on to say that even if he were wrong in his construction of the section the common law principle remains applicable given that the enactment of s 21A did not purport to codify the law. I would also add that the commission of a registrable offence by this applicant is a blatant repudiation of a sentencing order imposed in 2002 which provided for a non-parole period with a view to his rehabilitation, and is a further basis for regarding his conduct in possessing child pornography as relevantly aggravated (see R v Cicekdag [2004] NSWCCA 357; 150 A Crim R 299 at [53]). Ground two: is the sentence manifestly excessive? 31 The applicant's claim that the sentence was excessive depends principally upon the sentence being at odds with her Honour's assessment of objective seriousness towards the lower end of the mid range. I am not persuaded that this challenge to the sentence is made out. 32 A sentencing judge is obliged to utilise the concept of mid range offending, and customarily appoints positions within or outside that range as a standard or measure against which to assess objective seriousness, when sentencing for offences where a standard non-parole period applies under Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act. This is in accordance with the approach mandated by this Court in R v Way [2004] NSWCCA 131; 60 NSWLR 168. However, it is neither necessary nor in most cases desirable for sentencing judges to make an assessment of the objective criminality in respect of offences not governed by a standard non-parole period with that same degree of nuance. I do not intend by that observation to suggest that there are not cases where particularity in the appointment of offending within a mid range of offending will not be warranted in order to ensure that the reasons for the imposition of a particular sentence achieve the objectives of clarity and transparency. When sentencing co-offenders it is often necessary to differentiate in this way in recognition of the need to ensure parity in the sentences imposed. In many cases, however, it is sufficient for a sentencing judge to make an assessment of objective criminality by reference to the maximum penalty, and to those other features of the particular offending that bear upon the gravity of the offence having regard to the circumstances of its commission, on a broad gradient of seriousness.

33 On any view of the various matters available to be considered by her Honour in assessing the objective seriousness inherent in the applicant's possession of the pornographic images the offending was grave. In addition, for the reasons already stated, I am satisfied that in the imposition of sentence her Honour was entitled to have regard to the fact that the offence was committed while the applicant was subject to an order intended to protect against the risk of sexual harm to children. On the other hand, there was nothing mitigating the applicant's offending. This is in contrast to each of the cases reviewed in Saddler. In each case relied upon by the applicant the offender pleaded guilty. The offender in Gent had no prior convictions at the age of 39 years and suffered from an "eminently treatable" chronic emotional disorder. The offenders in Mouscas, Power v DPP (NSWDC, 19 July 2007, unreported), R v Elliott [2008] NSWDC 238 and R v Jones [2009] NSWDC 8 had no prior convictions while the Court observed in so far as Saddler was concerned that his criminal antecedents bore no real similarity to the offences under consideration. It should be noted that the offenders in Saddler and Elliott also received significantly harsher sentences than this applicant. Power is of limited assistance for the additional reason that it was an appeal from a sentence imposed in the Local Court together with a positive finding that the offender was unlikely to reoffend. The offender in R v Leonard [2008] NSWDC 211 was 74 at the time of sentencing and had significant health issues, including having suffered a heart attack just prior to sentencing. The Court was satisfied that his health condition would render his time in custody more onerous. The offender in Jones was 64 at the time of sentencing and suffered from post-traumatic stress disorder, a "significant back problem" and prostate cancer with an uncertain prognosis. The subjective factors in each of these cases are sufficiently distinct from the applicant's case to render unhelpful any attempt of a comparison between the sentences imposed in those cases with that imposed in the present case. 34 The applicant's challenge to the sentence as manifestly excessive must fail. 35 Accordingly, the orders I propose are as follows: 1. Leave to appeal is granted. 2. The appeal is dismissed. 36 SCHMIDT J: I agree with Fullerton J. **********

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.

CITATION: SIVELL, Andrew John v R [2009] NSWCCA 286

Edwards v R [2009] NSWCCA 199 Mouscas v R [2008] NSWCCA 181 Porter v R [2008] NSWCCA 145 Power v DPP (NSWDC, 19 July 2007, unreported) R v AJP [2004] NSWCCA 434; 150 A Crim R 575 R v Booth [2009] NSWCCA 89 CASES CITED : R v Cicekdag [2004] NSWCCA 357; 150 A Crim R 299 R v Elliott [2008] NSWDC 238 R v Gent [2005] NSWCCA 370; 162 A Crim R 29 R v Jones [2009] NSWDC 8 R v Leonard [2008] NSWDC 211 R v Oliver [2003] 1 Cr App R 28 R v Way [2004] NSWCCA 131; 60 NSWLR 168 Saddler v R [2009] NSWCCA 83

1 McCLELLAN CJ at CL: I agree generally with the reasons of Fullerton J and add the following further observations. 2 The sentencing judge described the offence as lying in the mid range of "objective seriousness" but toward the lower end of that range. In so doing the language used by her Honour was that which is appropriate when sentencing for an offence which attracts a sentence which includes a standard non-parole period. The present offence does not attract a standard non-parole period. 3 Although a sentencing judge must always identify the seriousness of the offence, caution should be exercised when using language relevant to an offence which attracts a standard non-parole period. The relevant principles were discussed by this Court in R v Way (2004) NSWCCA 131; 60 NSWLR 168: see also R v AJP (2004) NSWCCA 434; (2004) 150 A Crim R 575. 4 When assessing where an offence lies in the range of objective seriousness when the offence attracts a standard non-parole period it is important to put aside considerations that do not have a nexus with its commission: Way [99]. Identifying whether an offence falls within the mid range of objective seriousness or otherwise is necessary so that appropriate consideration can be given to the standard non-parole period provided by the statute. The "objective seriousness" of the offence is of relevance only to the non-parole period to be imposed. 5 The "objective seriousness" of an offence is a different concept to the "seriousness of the offence", the latter expression being commonly used when determining the sentence, both total term and non-parole period (if appropriate) for that offence. Where a standard non-parole period is not provided for an offence, the objective seriousness of the offence does not, of itself, direct attention to any particular type of punishment or term of imprisonment which must both be determined after all of the relevant matters, both objective and subjective, which inform the seriousness of the offence have been considered. 6 I agree with the orders proposed by Fullerton J. 7 FULLERTON J: The applicant seeks leave to appeal against a sentence imposed upon him on 12 November 2008 in the District Court after a jury found him guilty in March 2008 of possession of child pornography contrary to s 91H(3) of the Crimes Act 1900. At the relevant time the maximum penalty provided was 5 years imprisonment. 8 The sentencing judge imposed a non-parole period of 1 year and 11 months to commence on 3 January 2008 with a balance of term of 10 months. At the time of sentence the applicant had been in continuous custody since his arrest on 3 June 2007 both for the offence the subject of the appeal and for breach of an interim prohibition order imposed under s 7 of the Child Protection (Offenders Prohibition Orders) Act 2004 in March 2007 ("the interim prohibition order"). The contravention of the interim prohibition order was constituted by the applicant being in the company of two children when he was arrested for possession of the child pornography, conduct which was contrary to the express terms of the order prohibiting him from being in the company of a person under the age of eighteen. 9 In fixing the non-parole period of 1 year and 11 months her Honour made some adjustment to the statutory ratio prescribed by s 44 of the Crimes (Sentencing Procedure) Act 1999 to account for the sentence being partially accumulated on a sentence of 10 months imprisonment with a non-parole period of 7 months imposed in the Local Court in December 2007 for breach of the interim prohibition order. The grounds of appeal 10 The sentencing judge found that the offence of possessing child pornography was committed in circumstances of aggravation by reason of his contravention of the interim prohibition order either by operation of s 21A of the Crimes (Sentencing Procedure) Act or at common law. The applicant's first ground of appeal challenged that finding. 11 The second ground of appeal challenged the sentence as manifestly excessive having regard to her Honour's finding that the offending was at the lower end of the mid range. The applicant also submitted that the sentence was excessive when compared with the review of comparable cases undertaken by this Court in Saddler v R [2009] NSWCCA 83. I note that the review undertaken in that case was before the maximum penalty for the offence of possessing child pornography under the Crimes Act was increased to 10 years by the passage of the Crimes Amendment (Sexual Offences) Act 2008, an amendment designed to bring the possession of child pornography under s 91H(3) of the Crimes Act into alignment with the offence of producing and disseminating pornographic material under s 91H(2).

17 I have already noted that Her Honour reviewed the seized material when making her assessment of the objective gravity of the offending, and that she made findings concerning the nature and content of the pornographic material both with respect to the age of the children portrayed and the type and gravity of the sexual activity reflected in the images as a whole. These are factors that this Court has identified in Gent at [99] as bearing upon an assessment of the objective seriousness of the offence of possessing child pornography. Her Honour did not refer explicitly to other relevant factors bearing upon objective seriousness also identified in Gent, namely the number of items or images possessed or whether the possession was for the purposes of sale or dissemination from which the offender might profit. It was not submitted that her Honour should have referred to these features, or that for other reasons the assessment of objective criminality exceeded her Honour's sentencing discretion. To the contrary. The applicant relied upon the fact that the number of images in the applicant's possession was moderate when compared with the many hundreds or thousands of images that have been involved in other cases involving possession or importation of child pornography. He also relied upon the fact that there was no obvious commercial motive in the applicant's possession of the images. The absence of both of these features in the applicant's case, it was submitted, tended to support a finding of criminality in the lower end of mid range. I note that in Mouscas v R [2008] NSWCCA 181 this Court was satisfied that even absent features of this kind it was open to a sentencing judge, in an appropriate case, to find that particular offending was nevertheless at the upper end of a range of seriousness.

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