Small v R

Court of Criminal Appeal (NSW)|2020-07-23|Before: Hoeben CJ, Johnson J, Lonergan J, Mr J

The Applicant's History of Prior Offences

The Applicant had a prior criminal history for similar offending. On 14 October 2008, he was sentenced at the Sydney District Court to a total effective sentence of 32 months' imprisonment, with a non-parole period of 21 months, for offences of possession of child pornography (four counts) and using a carriage service to transmit child pornography (five counts).
On 9 March 2012, the Applicant was sentenced at the Sydney District Court to a total effective sentence of imprisonment for four years and five months, with a non-parole period of two years, for offences of using a carriage service to groom a person under 16 years for sexual activity contrary to s.474.27(1) Criminal Code (Cth) and failing to comply with reporting obligations under s.17(1) the Offenders Registration Act (NSW) (two counts). The non-parole period expired on 8 March 2014.
In passing sentence on 9 March 2012, his Honour Judge Frearson SC observed that the offences revealed "deliberate and blatant breaches of the legislation in relation to [the] State offences, legislation designed to protect the community and in particular, to protect the under aged" (ROS2).

The Applicant's Subjective Circumstances

The Applicant was born in December 1978. He was 38 years old at the time of the offences and at the time of sentence.
The Applicant gave evidence at the 2017 sentencing hearing as did the Applicant's mother.
A presentence report dated 25 October 2017 of Rachel Curtis, Community Corrections officer, was tendered on sentence. Ms Curtis noted the Applicant's statement that "he enjoys a positive and supportive relationship with his family" with this being confirmed by the Applicant's mother. The author of the presentence report said with respect to the Applicant's attitude to his offending: "In respect to the charges of failing to comply with his reporting obligations, Mr Small claimed to be ignorant of the requirements upon him. Corrective Services NSW records indicate the offender had been made aware of his reporting obligations as early as March 2015, prior to his release from Corrective Services NSW custody. Mr Small minimised the serious nature of his offending and failed to demonstrate an appropriate level of victim empathy. When discussing the offences pertaining to the child abuse material, Mr Small appeared to justify his actions by claiming that his use of the images was appropriate and he considered that he had done nothing wrong by posting them to social media sites. Mr Small did however describe his disappointment at being in custody as he had established a further relationship with a female friend that, due to his incarceration, he believes is now at risk."
The presentence report contained the following assessment concerning the Applicant: "Mr Small enjoys the support of his family; however, it appears he has little to no other appropriate support networks. It is noted that the current offences took place within 12 months of Mr Small being released from custody for similar offending behaviour. Although Mr Small was able to reflect on certain aspects of his personal life preceding the offences, he failed to recognise the impact of his offending on the victim and by justifying his behaviour; he failed to recognise the criminality of his actions. Mr Small expressed concern about his own incarceration and the negative impact this may have on his personal relationships. The offender excused his offences in regards to his failure to comply with reporting obligations and claimed he was ignorant to the requirements on him, a suggestion that is questionable given he was subject to the Child Protection Register for almost 12 months prior to current offences."
A risk assessment report attached to the presentence report assessed the Applicant as being an above-average risk by reference to the STATIC-99R protocol.
A report of Emma Hubner, psychologist, dated 18 September 2017 was tendered in the defence case on sentence. The Applicant informed Ms Hubner of his positive family background with no exposure to trauma or abuse. Ms Hubner assessed the Applicant to be a moderate-to-high risk of reoffending by use of the STATIC-99R protocol. After applying the STABLE 2007 risk assessment protocol, Ms Hubner placed the Applicant in the high range as to risk of reoffending. Ms Hubner expressed the following conclusion (paragraph 41): "In regards to sexual recidivism risk, Mr. Small was considered to be at High risk when compared to other sex offenders. He has continued to offend despite intervention and has not abided by official restrictions such as unauthorized use of mobile telephone numbers and online accounts, and interstate travel. He continues to minimize his offending and justifies his behavior via external attribution cognitions and values, thus avoiding responsibility for his actions."

Some Findings in the Sentencing Remarks

It is appropriate to set out a number of findings made for the purpose of sentence.
Her Honour Judge Huggett made the following findings concerning the possess child abuse material offence under s.91H(2) Crimes Act 1900 (NSW) in Sequence 9 (ROS6): "It goes without saying that children have been harmed in the production of the child abuse material referrable to sequence 9. While I appreciate that the offender is not charged with producing any of this material, the production of such material creates the market and opportunity for people like this offender to possess such material. There is no evidence before the Court regarding for how long the offender was in possession of the images referrable to sequence 9. Nor from where he had obtained those images. There is no suggestion that he profited financially from his possession of them, nor that he was part of a collaborative network of likeminded individuals. In assessing the objective gravity of the sequence 9 offence by comparison with many other offenders convicted of this offence this offender possessed relatively few images and no videos. Sixty of the images were within the lowest classification category and one fell within a more serious classification category but none were in the more or most serious categories. Taking all relevant matters into consideration, sequence 9 is a serious offence as reflected by the maximum penalty. However in my view, it falls within the lower range of objective gravity."
Her Honour turned to the offences under s.474.27(1) Criminal Code (Cth) in Sequence 10 and s.474.19(1)(a)(iv) Criminal Code (Cth) in Sequence 11 (ROS6-8): "Sequences 11 and 10 arise out of the offender's communications with [Amy] utilising carriage services including mobile telephone networks and the internet. Although the offender established contact with [Amy] by issuing her with a friend request, I have no doubt at all that his proffered friendship was a ruse designed to give him access to a girl he intended would be underage. Within a short period of time he became aware that [Amy] was considerably younger than he was and that she was experiencing emotional troubles and had been self-harming. She was in that way particular vulnerable and the offender took advantage of that. [Amy] was of course 14 years old, she was a real person as opposed for example to being an undercover police operative. From the outset or very soon thereafter the offender determined to exploit [Amy] for his own sexual gratification. He instigated communications with sexual overtones which were clearly designed to break down otherwise appropriate social boundaries. He made repeated requests that [Amy] supplied him with sexual images of herself effectively threatening that if she did not comply she would lose him as a friend. He also threatened to make public the images she had provided to him. The offender's communications contained references to sexually explicit acts, including requests that [Amy] masturbate while on the phone to him escalating to repeated requests they meet up and engage in sexual activity. While no meeting in fact occurred the offender's deliberate conduct was undoubtedly intended to encourage and therefore make it easier for him to procure [Amy] to engage in sexual activity with him. On numerous occasions [Amy] indicated she did not want to comply with the offender's requests and that she felt uncomfortable. On one occasion she told him that 'she was not like that' and she effectively pleaded with him to simply be her friend. At one point the offender was contacted by [Amy's] friend and [Amy's] father both asked him to ceased contact but he did not. When [Amy] did in fact terminate the communications with the offender he ignored her distress and deliberately contacted her using an alias and attempted to convince her to re-establish contact with him. None of this deterred the offender, his conduct can only be described as persistent, manipulative and predatory. It said to corrupt [Amy's] psycho sexual and emotional development. She pleaded with him to stop harassing her; he knew his actions were causing her to become upset. The offender caused harm to [Amy] and the potential for ongoing harm cannot be underestimated. A factor in the offender's favour is the fact that the majority of his communications with [Amy] were effected using his own name. Although he did use the Star Wars alias, in those communications he made reference to his own identity. This made detection of his offending easier than is typically the case with offending of the present type. Furthermore his communications took place within a one month period only. The maximum penalties for sequences 11 and 10 reflect the serious nature of such offences. In my view the combination of factors to which I have just referred make both sequence 11 and sequence 10 grave offences, each falling to my mind around the middle of the range of objective gravity."
The sentencing Judge made the following findings concerning the offences of failing to comply with reporting obligations under s.17(1) Offenders Registration Act (NSW) in Sequences 3, 4, 5 and 6 (ROS8-9): "Sequences 3, 4, 5 and 6 arise out of the offender's failure to comply with reporting conditions imposed upon him as a registrable person under the relevant legislation. Relevantly he was required to inform police regarding any plans to be absent from New South Wales for a period exceeding 14 days, the details of any carriage service and internet services he used and the details of any email address, internet user name, internet messaging user name and chat room user name that he used. Those conditions were communicated to and understood by the offender and were in force until March 2027. The offender failed to report to New South Wales Police the fact he intended to travel and in fact had travelled outside of New South Wales for more than 14 days, (sequence 3). He failed to inform police of the fact he was in possession of and using a carriage service, (sequence 4), using an internet service (sequence 5) and using Facebook, Snapchat and Instagram accounts, (sequence 6). The requirements imposed upon the offender were designed to protect children from exploitation from persons such as this offender. Although he has at times purported to have been unaware of his obligations in this regard he accepted in his evidence that he was aware of them. I have no doubt at all that the offender knew of his obligations and made a deliberate and blatant choice to ignore them because he wished to establish contact with an underaged girl in order to commit these offences. In my view sequences 3, 4, 5 and 6 are each objectively very serious."
Her Honour made the following findings of fact which further illuminate the seriousness of the offences involving Amy, the young victim of the Commonwealth offences in Sequences 10 and 11 (ROS9-10): "As far as the offender's motivation is concerned, he gave evidence that he met [Amy] simply as a friend and began talking with her in that capacity to help her with her self-harm issues. That assertion is completely at odds with the tone and content of his communications including 'I can't be besties with a dirty slut', 'If I don't get a full nude before Friday showing tits and pussy you lose everything from me', 'Are you going back to cutting now, lol' which is I understand lol being an abbreviation for laugh out loud. He also maintained in his evidence that he made efforts to pull away from [Amy] but that she wanted him to maintain contact which he agreed to because of her self-harm issues. The offender's evidence in that regard is completely at odds with the objective evidence before me as revealed in the communications. While it is true that on occasions the offender did state he would sever contact with [Amy] which I note was done in the form of a threat. I have no doubt at all that that was done simply as a means of manipulating [Amy] to comply with his requests and not because of any genuine intention to pull away from her. Indeed, towards the end of their communications when [Amy] did in fact block the offender he then contacted her via his alias and attempted to persuade her to re-establish contact with him. When describing his relationship with [Amy] the offender told the psychologist Mr Hubner that he loved the attention he got from her but that it was nothing to do with her age. He said that he became hostile and threatening towards [Amy] because he found it difficult to readjust to being in the community upon his last release from gaol and he felt stressed. I completely reject the offender's explanation to Ms Hubner that his contact with [Amy] had nothing to do with her age. As I have earlier found I have no doubt at all his conduct was motivated by gratifying his own sexual urges in circumstances where he has described to Ms Hubner his attraction to the school girl look."
The sentencing Judge then outlined the Applicant's subjective case and the evidence adduced at the sentencing hearing as well as his history of prior offending. Her Honour said in that respect (ROS12-13): "Whilst the offender's record for like offending does not aggravate the objective gravity of the present offences and it is conduct for which he has already been punished and I recognise he must not be sentenced for what he might do in the future. The offender's record clearly reflects a very concerning attitude of persistent disobedience of the law. It denies him the leniency he might otherwise have been entitled to were he to present without a record. Subject to the constraint of proportionality, his record heightens the need for regard to be had to the protection of the community and to deterrence, particularly specific deterrence."
The sentencing Judge considered the Applicant's risk of reoffending and his prospects of rehabilitation, noting that the Applicant considered the Custody Based Intensive Treatment ("CUBIT") program to have been "a waste of time" and of "no benefit to anybody" (ROS13-14): "As a result of sentences imposed on the offender in the past to which I have just referred, the offender has already participated in sex offender programs including the CUBIT or custody based intensive treatment program designed for moderate to high risk sexual offenders. He has described the program as 'a waste of time' and stated it provided no benefit to anybody and contained little in the way of one on one support. In evidence before me he repeated that the program was ineffective because it included ten other inmates preventing sufficient one on one therapy. He added that he found it hard to talk openly in the CUBIT program and is of the view that community based rehabilitation would be of more benefit to him than participation in custodial based programs because the opportunity to reoffend takes place in the community rather than when he is in custody. Psychometric tests have been administered designed amongst other things to assist in predicting his risk of reoffending. Those tests sought to address both dynamic and static risk factors. Overall the offenders scores indicated that he was in the moderate to high risk category for reoffending. The psychologist who conducted those tests opined that the offender continues to minimise his offending and avoided taking responsibility for it. The offender has been assessed as being a person in high need of professional treatment and intervention, including in the areas of intimacy deficit, sexual regulation, cognitive regulation and responsiveness to supervision. The evidence before me demonstrates that the offender has had the benefit of treatment programs designed to address his reoffending and prevent its repetition. Those programs have failed. He has had the benefit of periods on parole and being subject to mandatory conditions akin to a form of supervision. Those conditions being designed to control aspects of his behaviour that led to his offending, they too have failed to prevent his reoffending."
Her Honour made findings adverse to the Applicant with respect to remorse, insight and victim empathy (ROS14-15): "I am not satisfied that on balance the offender has demonstrated he is genuinely remorseful or that he has true insight into his offending beyond the regret he feels arising from the fact he was arrested and incarcerated. The offender impressed me as a particularly unconvincing witness who is prepared to say anything that might advance his case. I am not satisfied he has demonstrated a genuine commitment to rehabilitation or to participating in a meaningful way in any course designed to address his offending. He has been convicted twice before and on each occasion reoffended within a reasonably short period of release from custody. He has deliberately disobeyed laws designed to prevent reoffending in a context in which he minimises the serious nature of his offending. He shows little genuine victim empathy and has failed to demonstrate that he takes responsibility for his actions."
The sentencing Judge took into account in the Applicant's favour the conditions in which he was expected to serve his sentence in protection (ROS15). Her Honour had regard to the maximum penalties, sentencing statistics and past sentencing decisions together with the provisions in s.16A Crimes Act 1914 (Cth) and s.3A Crimes (Sentencing Procedure) Act 1999 (NSW) (ROS15-16).
With respect to issues of accumulation, concurrence and totality, her Honour said (ROS16-17): "In sentencing an offender for more than one offence, considerations of concurrence, accumulation and totality are important. I am of the view that a large degree of concurrence is required because of the overlapping nature of the offences and the temporal connection between them, complete concurrence is not appropriate however, because although the offences overlap, they are not identical. The offender used a carriage service to solicit child pornography material. He used a carriage service to groom a child with the intention of making it easier to procure that child to engage in sexual activity with him. He was in possession of child abuse material and he deliberately disobeyed laws designed to protect children from persons such as himself and the offending behaviour in each of his discreet offences is different. In order to reflect the different aspects of criminality covered by the offences there will therefore be a degree of accumulation although it is appropriate in my view that sequences 3, 4, 5 and 6 be wholly concurrent."
In a passage which gives rise to the ground of appeal, her Honour had regard to the Applicant's pleas of guilty in passing sentence for the New South Wales and Commonwealth offences (ROS17-18) (my emphasis): "The offender pleaded guilty to all offences in the Local Court. For each State offence he is entitled to a 25% discount for the utilitarian value of his pleas. In relation to the Commonwealth offences his pleas of guilty whilst undoubtedly a recognition of the inevitable given the strength of the Crown case did facilitate the course of justice which I have taken into account. I am not satisfied on balance however that his guilty pleas do evidence any contrition or remorse on his part. The offender is convicted of each of the seven offences for which he appears for sentence. For the State offences and having allowed a discount of 25% for each plea of guilty, for the four offences of failing to comply with reporting obligations, namely sequences 3, 4, 5 and 6 for each offence I impose wholly concurrent fixed terms of imprisonment of two years each to date from 15 February 2016. Fixed terms have been imposed because of other sentences to be imposed. For the State offence of possessing child abuse material, sequence 9, I impose a fixed term of imprisonment of 2 years, 3 months imprisonment to date from 15 February 2017. A fixed term has been imposed because of other sentences to be imposed. For the Commonwealth offences and taking into account the offenders pleas of guilty for the offence of using a carriage service to transmit a communication to [Amy], a person then under the age of 16 with the intention of making it easier to procure [Amy] to engage in sexual activity with him sequence 10, I impose a term of imprisonment of 6 years to date from 15 August 2018. For the offence of using a carriage service to solicit child pornography material sequence 11 and taking into account the matter on the certificate, I impose a term of imprisonment of 7 years to date from 15 August 2019."
Her Honour addressed the "special circumstances" issue concerning the New South Wales offences in the following way (ROS18): "In so far as a submission was made in relation to the State offences, that I would find special circumstances by virtue of the fact the offender suffers depression and will require supervision on his release and would benefit from community based treatment. Such a finding was not appropriate because fixed terms have been imposed on the State offences. It can however be seen that the overall effect of the sentences I have imposed is a sentence with a ratio of 66% between the total sentence and the non-parole period. That is a result of the application of totality and the need to stand back and ensure that the overall period in custody is just in all of the circumstances and reflects the minimum period justice requires the offender to serve. I am so satisfied. It also serves the function of enabling the offender to be closely monitored throughout the entirety of his parole period which I strongly recommend."

The Sole Ground of Appeal Asserting Error in the Approach to the Applicant's Pleas of Guilty for the Commonwealth Offences

Mr Brock, counsel for the Applicant, submitted that error had been demonstrated in accordance with the principles in Xiao v R as a result of the sentencing Judge's non-quantification of a discount for the utilitarian value of his pleas of guilty for the Commonwealth offences. Whilst acknowledging that her Honour had taken into account the Applicant's pleas of guilty for these offences, there had been no quantification of discount of the type undertaken for the New South Wales offences. It was submitted that error had been demonstrated and that this Court should move to resentence the Applicant.
In light of the decision in Xiao v R, the Crown conceded that the ground of appeal should be upheld. It was accepted that it is appropriate to attach a utilitarian value to the Applicant's pleas of guilty for the Commonwealth offences as well as the State offences.
It remains a matter for the Court to determine whether error is demonstrated in accordance with the ground of appeal. It is the case that the sentencing Judge took into account the Applicant's pleas of guilty for the Commonwealth offences (see [41] above). Consistent with the law as it stood in November 2017, her Honour attached a quantified discount of 25% for the Applicant's early pleas of guilty for the New South Wales offences, but did not quantify the allowance to be made for the pleas of guilty for the Commonwealth offences to reflect the utilitarian value of the guilty pleas.
I have considered whether her Honour's approach to the Applicant's pleas of guilty for the Commonwealth offences did, in any event, satisfy the requirements of Xiao v R. Having done so, I am satisfied that the ground of appeal should be upheld in this case.
Applying the reasoning in Xiao v R, there is no good reason why a quantified discount would apply for the New South Wales offences but not the Commonwealth offences, to reflect the utilitarian value of the guilty pleas.
I would uphold the ground of appeal.

Resentencing the Applicant

In exercising its function under s.6(3) Criminal Appeal Act 1912, the Court should take into account all relevant matters, including evidence (if any) of the Applicant's progress towards rehabilitation in the period since the original sentence was passed: Kentwell v The Queen at [43]; Betts v R (2016) 258 CLR 420; [2016] HCA 25 at [2], [11].
The Applicant did not seek to place any further evidence before the Court in this respect, so that the Court is to consider the question of sentence by reference to the evidence adduced at the 2017 sentencing hearing.
Mr Brock submitted that the Court should assess the objective seriousness of the Commonwealth offences in a manner which would see lesser sentences being imposed for those offences after allowing a 25% discount for the pleas of guilty and by reference, as well, to the magnitude of the sentences passed for those offences at first instance. Reliance was placed upon sentencing statistics as contained in a further affidavit of Ms Knowles affirmed 20 July 2020. Whilst acknowledging the limitations of the Applicant's subjective case, Mr Brock submitted that a lesser overall sentence was appropriate in the circumstances of the case.
The Crown submitted that these were offences of considerable objective seriousness, as the sentencing Judge had found, and that those findings should be retained for the purpose of resentencing the Applicant. The Crown accepted that there was no rational distinction to be drawn between the utilitarian value of the Applicant's pleas of guilty for the New South Wales offences and the Commonwealth offences and that it would be open to the Court, when resentencing the Applicant, to allow a discount of 25% to reflect the utilitarian benefit of the Applicant's pleas for the Commonwealth offences.

Decision

For the purpose of the resentencing function under s.6(3) Criminal Appeal Act 1912, I am satisfied that the findings as to the objective gravity of the Commonwealth and New South Wales offences made by the sentencing Judge should be retained. I agree with the findings made by her Honour (as set out at [32]-[34] above) in that respect.
The Commonwealth offences in Sequences 10 and 11 were serious examples of offences of this type. The offences involved a young and vulnerable girl who was subjected to sustained and predatory criminal communications from the (much older) Applicant for the purposes of his own sexual gratification.
This Court has recognised the harm done to child victims of cybersex offences. In Kannis v R [2020] NSWCCA 79, with the concurrence of N Adams and Ierace JJ, I said at [126]-[128]: "126 Indeed, Courts have recognised that the implicit, persuasive presumption that a child has suffered harm as a result of prohibited sexual activity applies no less to cybersex offences than it does to (in person) sexual offences committed against young persons: Adamson v R (2015) 47 VR 268; [2015] VSCA 194 at [23]-[30], [56]-[58]. In that case, Warren CJ, Redlich and Weinberg JJA said at [23], [28]: '[23] The appellant argues that cybersex offences have a sufficiently different character to the 'in person' offences considered in [Clarkson v R (2011) 32 VR 361; [2011] VSCA 157] to render the reasoning supporting the application of the presumption inapplicable to cybersex. That submission cannot be sustained. The Victorian Director of Public Prosecutions (Director) and the Commonwealth Director submit that the principles relating to the presumption of harm described in Clarkson apply equally to cybersex offences. We agree. The subject matter, text and purpose of the legislation concerned with sexual offences against children through the use of a carriage service rests upon the same presumption as exists in relation to offences committed 'in person', or in the presence of the child. The legislature, in enacting the provisions prohibiting the use of a carriage service to engage in sexual activity with a child, sought to implement society's detestation of the practice of encouraging children to engage in inappropriate sexual behaviour, and to protect the child from immature decisions. … [28] As the present case illustrates, the medium of the internet permits the offender to employ techniques of intimidation or coercion which are designed to ensure the child's participation. In some cases the relationship that exists between offender and child may give rise to a breach of trust. When such factors are present in offending 'in person', they are ordinarily a circumstance of aggravation. But the presumption of harm does not depend on such factors being present, either for 'in person' or cybersex offences, though their existence in a particular case may increase the risk of harm to the child.' 127 In R v Gavel (2014) 239 A Crim R 469; [2014] NSWCCA 56, this Court said at [110]: 'This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the 'long term and serious harm, both physical and psychological, which premature sexual activity can do'. The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39].' 128 The line of authority which gave rise to this statement in R v Gavel involves the same cases relied upon by the Victorian Court of Appeal in Adamson v R. These principles may be called in aid as well where a person is being sentenced for cybersex offences committed against real child victims."
The Applicant's offences involved a real child victim and cybersex crimes involving real victims render the offences more serious: R v Fuller [2010] NSWCCA 192 at [35], [45]; Kannis v R at [301], [304].
The harm done to Amy as a result of the Applicant's offences should be taken into account on sentence: Kebriti v R [2019] VSCA 275 at [23], [28]; Kannis v R at [304].
In Adamson v R (2015) 47 VR 268; [2015] VSCA 194 at [55], Warren CJ, Redlich and Weinberg JJA emphasised a feature of offences of this type which gives primacy to the need for general deterrence and denunciation: "In the very recent decision of the New South Wales Court of Criminal Appeal in R v Porte [(2015) 252 A Crim R 294; [2015] NSWCCA 174 at [52]], it was noted that "[t]here are few areas where the age of the Internet has impacted upon the criminal law more severely than in the field of child pornography offences". Offences which involve procuring child victims for child pornography and the production of child pornography via the medium of the internet require the imposition of sentences that reflect the ease with which this medium may be used to commit such grave offences and which give primacy to the need to deter and denounce such conduct."
In Director of Public Prosecutions (Cth) v Watson (2016) 259 A Crim R 327; [2016] VSCA 73 at [89], Redlich and Beach JJA referred to the gravity of cybersex offences and the requirement that significant weight be attached to general deterrence on sentence: "The respondent's offending shows that the internet may be used as a highly effective medium through which to exploit and sexualise vulnerable children who now are able to have unsupervised access to the internet. Computers and mobile phones with internet access, afford the willing offender with unparalleled world-wide opportunity to exploit the young and impressionable. It is a form of offending that is difficult to detect. It is already evident that the rapidly advancing technology will require courts to increasingly address cases of this kind. The increase in maximum penalty in 2010, no less than 5 years after these offences were introduced [See Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010 (Cth)], reflects the legislature's recognition that today's technological landscape presents a dangerously easy playing field for manipulation of children. The prevalence of such offending means that significant weight must be attached to general deterrence."
The Applicant had a significant prior history of offences of this type for which he had been sentenced on two separate occasions to significant terms of imprisonment. The Applicant bears all the hallmarks of a hardened recidivist.
Despite that background and his awareness of the need to comply with legal requirements under the Offenders Registration Act (NSW), the Applicant committed serious offences under that Act as well as further grooming and solicit child pornography offences involving a young child victim.
Her Honour's approach on sentence to the Applicant's prior criminal history was clearly open in this case (see [36] above). In Gilshenan v R [2019] NSWCCA 313, this Court considered the sentencing of a child pornography offender with a prior history of offending of that type. The Court said at [60]-[62]: "60 The principles in Veen v The Queen (No. 2) and Baumer v The Queen (1988) 166 CLR 51; [1988] HCA 67 at [13]-[14] have been taken to establish that the principle of proportionality requires the upper boundary of a proportionate sentence to be set by the objective circumstances of the offence which circumstances do not encompass prior convictions: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at [24]. However, as was said in Veen v The Queen (No. 2), an antecedent criminal history is not relevant only to an offender's claim of leniency. If an offender manifests in the commission of the offences for which sentence is to be passed 'a continuing attitude of disobedience of the law', then 'retribution, deterrence and protection of society' play a part on sentence, although not in a manner which allows imposition of a sentence which is disproportionate to the objective gravity of the offences. 61 His Honour's approach to the Applicant's prior criminal history was open in this case where the Applicant was a repeat offender motivated by the same aberrant drives which led to the commission of the earlier offences. The sentencing Judge was well aware of the gravity of the earlier offences compared with that of the offences for which the Applicant was to be sentenced. 62 The principles emerging from Veen v The Queen (No. 2) and R v McNaughton are not moderated where a repeat offender commits a lesser form of offence of the same type. What is pertinent is that the Applicant demonstrated a continuing attitude of disobedience of the law in the form of repeat child pornography offences."
Unlike the offender in Gilshenan v R, the Applicant did not commit a lesser form of child pornography offence to that contained in his criminal history. As the extracts from the 2012 sentencing remarks of his Honour Judge Frearson SC make clear (see [21]-[23] above), the Applicant's 2010 offences bear close similarities to the present offences involving Amy, where he acted in a predatory fashion using lines of electronic communication to contact and exploit a vulnerable young girl for his own sexual gratification.
I have taken into account information concerning sentencing statistics for offences under ss.474.19 and 474.27 Criminal Code (Cth) as contained in the further affidavit of Ms Knowles affirmed 20 July 2020. That information indicates that, compared with other sentences, substantial sentences were imposed upon the Applicant for the offences contained in Sequences 10 and 11.
This is understandable, however, for these were serious offences committed by a recidivist offender involving a vulnerable child victim who was exploited by the Applicant. Even when the victim's father sought to intervene to urge the Applicant to desist, the Applicant's response disclosed a callous and perverse approach on his part towards the family of the young girl (see [15] and [33] above).
The Applicant has not demonstrated genuine remorse or insight and has shown little interest in custodial rehabilitation programs. As the sentencing remarks of her Honour Judge Huggett illustrate (see [37]-[38] above), this appears to be an established and apparently intractable attitude of the Applicant. He presents as an ongoing risk to the community against a background of earlier offending which has not deterred him from further serious crimes of this type.
Substantial terms of imprisonment remain appropriate penalties for the purpose of sentencing the Applicant, noting that the offence under s.474.19(1)(a)(iii) Criminal Code (Cth) is to be taken into account on sentence for Sequence 11.
That brings me to the question of the Applicant's pleas of guilty for the Commonwealth offences.
In Bae v R [2020] NSWCCA 35, with the concurrence of Bell P and Walton J, I said at [53]-[57]: "53 The approach in R v Borkowski applies to the assessment of the utilitarian value of a guilty plea for State offences. Nevertheless, in the same way as R v Thomson; R v Houlton has provided guidance for Commonwealth offences, the decision in R v Borkowski assists in a practical understanding of the features of the utilitarian value of a guilty plea, a factor which Xiao v R states can be taken into account for the purpose of s.16A(2)(g) Crimes Act 1914 (Cth). 54 Counsel for the Appellant and the Crown both accepted at the hearing in this Court that the principles in R v Borkowski provided assistance in assessing the utilitarian value of a guilty plea for a Commonwealth offence (T2-3, 5, 11, 6 February 2020). 55 It will be apparent from the authorities referred to so far, including R v Borkowski, that identification of the utilitarian value of a plea of guilty involves an objective assessment to be undertaken for the purpose of s.16A(2)(g) Crimes Act 1914 (Cth). If an offender has demonstrated contrition involving facilitation of the course of justice, this factor may be taken into account in the offender's favour on sentence in accordance with s.16A(2)(f) Crimes Act 1914 (Cth). This aspect falls on the subjective side of factors and involves an enquiry as to the attitude of the offender and an assessment of contrition. Reference to objective and subjective factors in this way was adopted in Diaz v R [2019] NSWCCA 216 at [77]-[83] as a useful way of distinguishing between these considerations. 56 As the cases have made clear, however, there is no bright line test for distinguishing between these objective and subjective considerations so that these factors may overlap. In Singh v R [2018] NSWCCA 60, Payne JA (with the concurrence of Campbell J and myself) said at [28]: 'Whilst it is correct that contrition and remorse are factors required to be taken into account separately under s 16A(2)(f) in addition to the plea of guilty under s 16A(2)(g), those factors often overlap. Nothing in Xiao provided to the contrary.' 57 The utilitarian value of a plea of guilty is an objective factor to be considered and preferably quantified (Xiao v R at [280]; Huang v R (2018) 332 FLR 158; [2018] NSWCCA 70 at [9], [49], [55]), with the subjective side involving demonstration of contrition to be an unquantified factor assisting the offender on sentence as part of the process of instinctive synthesis, but with the sentencing court guarding against double counting of these aspects in a manner favourable to the offender."
What was said in Bae v R has been applied in subsequent decisions of this Court including Khalid v R [2020] NSWCCA 73 at [60] and Betka v R [2020] NSWCCA 191 at [57]-[59].
At the time when Xiao v R and Bae v R were decided, s.16A(2)(g) Crimes Act 1914 (Cth) required a sentencing court to take into account "if the person has pleaded guilty to the charge in respect of the offence - that fact".
Section 16A Crimes Act 1914 (Cth) has been amended so that, since 20 July 2020, s.16A(2)(g) now provides that a sentencing court must take into account: "(g) if the person has pleaded guilty to the charge in respect of the offence: (i) that fact; and (ii) the time of the plea; and (iii) the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence."
In resentencing the Applicant, this Court should apply s.16A(2)(g) in its present form which gives effect to aspects of the utilitarian value of a guilty plea as described in Xiao v R and Bae v R.
The Applicant's guilty pleas for the Commonwealth offences were entered at an early stage of the proceeding when still before the Local Court. An effect of the pleas of guilty was that Amy and other witnesses were not required to give evidence at a trial. There was utilitarian value to the Applicant's guilty pleas for the Commonwealth offences.
The Applicant's pleas of guilty did not reflect remorse or contrition on his part. The guilty pleas were entered in the face of an overwhelming Crown case against the Applicant. Any allowance for the pleas of guilty is to be confined solely to the utilitarian value of the pleas. The Applicant has not demonstrated contrition or remorse so that he is not entitled to a favourable finding under s.16A(2)(f) Crimes Act 1914 (Cth).
The sentencing Judge took into account on sentence the fact that the Applicant's pleas of guilty facilitated the course of justice with respect to the Commonwealth offences (see [41] above). In this way, her Honour allowed an unquantified benefit to the Applicant for his pleas of guilty for the Commonwealth offences. It is necessary to take this feature into account in now quantifying a discount for the utilitarian value of the Applicant's pleas of guilty for the Commonwealth offences.
It is not the case that there was a complete failure to give the Applicant credit for his pleas of guilty for the Commonwealth offences in the District Court. Rather, that aspect was taken into account in his favour, in an unquantified way, as part of the general mix of factors to be taken into account in the process of instinctive synthesis. Now that quantification is to be undertaken, regard must be had to that feature at first instance.
I am satisfied that the sentences as imposed for all the State offences should stand. No submission was made to the contrary in this Court.
With respect to Sequence 10, an offence punishable by a maximum penalty of 12 years' imprisonment, I would apply a 25% discount for the guilty plea to a term of imprisonment for seven years and 10 months giving rise (after some rounding) to a sentence of five years and 10 months' imprisonment.
With respect to Sequence 11, an offence which carries a maximum penalty of 15 years' imprisonment, after taking into account the further offence under s.474.19(1)(a)(iii) Criminal Code (Cth), in Sequence 2, I would apply a 25% discount to a head sentence of imprisonment for nine years and three months so that (after some rounding), the head sentence would be one of imprisonment for six years and 10 months.
The two Commonwealth offences in Sequences 10 and 11 should be made partially accumulative with each other, leading to an overall Commonwealth sentence of imprisonment of seven years and 10 months. A single non-parole period should be fixed for these offences being a term of four years and five months.
The total effective sentence for all offences will comprise a head sentence of 10 years and four months commencing on 15 February 2016 and expiring 14 June 2026, with a non-parole period of six years and 11 months which will expire on 14 January 2023.
I am satisfied that no lesser effective head sentence and minimum term than this is warranted having regard to all the circumstances of the case and, in particular, the need for specific deterrence, general deterrence and protection of the community. This outcome will retain the approximate proportion between the effective full term and the minimum term for reasons expressed by the sentencing Judge (at [42] above).

Orders

I propose the following orders: 1. extend time for the Applicant to apply for leave to appeal against sentence to 5 May 2020; 2. grant the Applicant leave to appeal against sentence; 3. the sentences imposed at the Sydney District Court on 17 November 2017 for offences of failing to comply with reporting obligations contrary to s.17(1) the Child Protection (Offenders Registration) Act 2000 (NSW) (Sequences 3, 4, 5 and 6) and possession of child abuse material contrary to s.91H(2) Crimes Act 1900 (NSW) (Sequence 9) are confirmed; 4. the sentences imposed at the Sydney District Court on 17 November 2017 for Sequences 10 and 11 are quashed; 5. in their place, the Applicant is sentenced as follows: 6. (i) for using a carriage service to groom a person under the age of 16 years for sexual activity contrary to s.474.27(1) Criminal Code (Cth) (Sequence 10), the Applicant is sentenced to imprisonment for five years and 10 months commencing on 15 August 2018; 7. (ii) taking into account under s.16BA Crimes Act 1914 (Cth) an offence of using a carriage service to transmit child pornography contrary to s.474.19(1)(a)(iii) Criminal Code (Cth), the Applicant is sentenced for an offence of using a carriage service to solicit child pornography contrary to s.474.19(1)(a)(iv) Criminal Code (Cth) (Sequence 11) to imprisonment for six years and 10 months commencing on 15 August 2019; 8. a single non-parole period is fixed under s.19AB(1) Crimes Act 1914 (Cth) for the offences in Sequences 10 and 11 being a term of four years and five months commencing on 15 August 2018 and expiring on 14 January 2023; 9. the earliest date upon which the Applicant will be eligible for release on parole is 15 January 2023.
LONERGAN J: I agree with Johnson 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. Decision last updated: 28 August 2020

an v R [2019] NSWCCA 313 Kannis v R [2020] NSWCCA 79 Kebriti v R [2019] VSCA 275 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Khalid v R [2020] NSWCCA 73 R v Fuller [2010] NSWCCA 192 Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 Texts Cited: --- Category: Principal judgment Parties: Christopher Small (Applicant) Regina (Respondent) Representation: Counsel: Mr J Brock (Applicant) Mr R Ranken (Respondent)

The Ground of Appeal

The Applicant relies upon a single ground of appeal that, in determining the appropriate discount to reflect the value of the Applicant's pleas of guilty for the Commonwealth offences in accordance with s.16A(2)(g) Crimes Act 1914 (Cth), her Honour did not have regard to the utilitarian value of the Applicant's pleas of guilty for those offences.
The Applicant requires an extension of time under s.10(1)(b) Criminal Appeal Act 1912 (NSW) to bring his application for leave to appeal against sentence.
In this respect, the Applicant relies upon his affidavit affirmed on 26 April 2020 together with affidavits of Stephen Eccleshall, solicitor, affirmed 15 April 2020 and Suzanne Tezjan Knowles, solicitor, affirmed 5 May 2020. The explanation for the delay in bringing the application relates to the decision of this Court in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 and the impact of that decision upon the Applicant's sentence.
The discretionary power to extend the time limit to bring an appeal to this Court is legislative recognition that the interests of justice in a particular case may favour permitting an application for leave to appeal against sentence to be heard, notwithstanding that it was not brought within time. In determining what the interests of justice require, it is necessary to have regard to the prospects of success of the ground of appeal should the extension be granted: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [32]-[33], [44].
Because of the decision of this Court in Xiao v R, the Crown accepted that there was merit in the Applicant's ground of appeal so that an extension of time was not opposed.
Having regard to the merits of the ground of appeal, an extension of time should be granted.

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