Wilson v R

Ground 1 - The sentence imposed was manifestly excessive

Ground 2 - The sentence judge erred in her assessment of the objective seriousness of Sequence 2

FACTUAL BACKGROUND

1. The offences were committed over a two month period between 27 August and 6 November 2018. During that period, the applicant posted two advertisements on a website, "Locanto" that invited "naughty mothers with naughty female offspring" to contact him. Locanto was a classifieds website that allowed users to buy and sell items and services. The website also had a personal section where users could advertise services and organise meetings.
2. A New South Wales police officer using two different assumed identities (CEIU22 and CEIU34) contacted the applicant in relation to each advertisement purporting to be a mother of a 10 year old girl and a girl aged 13 respectively. The applicant spoke to each assumed online identity (AOI) about engaging in sexual activity with children.

Sequence 1 - Transmit Child Pornography

1. On 27 August 2018, the applicant operating under the username "Eagle 6", posted a personal advertisement on Locanto in the section '"Fetish encounters Paramatta, Sydney". On 27 August 2018, CEIU22 responded to the advertisement using the instant messaging service on the Locanto website. The applicant and CEIU22 exchanged messages. They arranged to continue their discussion on Skype and exchanged contact details. The applicant offered to send a picture to CEIU22 and subsequently sent a photo of his erect penis.
2. The applicant and CEIU22 continued their conversation on Skype. The applicant said "Think we can talk a bit more openly now" and asked how old CEIU22's daughter was and whether she had "done this before". The applicant was told that CEIU22's daughter was ten years old. The applicant suggested that they would meet up and have some "wine, chat, relax, and get to the point of being naked, or we could even go to a nude beach together".
3. On 28 August 2018, the applicant and CEIU22 had another conversation on Skype. During the conversation, the applicant asked if CEIU22's daughter had seen the "pic" he had sent. The applicant also suggested that CEIU22 should get her daughter to watch pornography and sent a link to a pornographic video clip called "Young tarts old farts".
4. On 31 August 2018, the applicant and CEIU22 continued their conversation. CEIU22 asked the applicant if he was "for real in this or is it just fantasy". The applicant replied "Oh no believe me, I want this to be real. I am super excited about meeting you and having a regular thing if it works. That's the truth".
5. On 3 September 2018, the applicant emailed a video of him masturbating and ejaculating to CEIU22 during a conversation on Skype. In that conversation, the applicant told CEIU22 that he would like to see her and her daughter "licking and fingering" and that he would like to watch her performing cunnilingus on her daughter.
6. On 10 September 2018, the applicant and CEIU22 exchanged messages on Skype. During the exchange, they discussed meeting in person at a café. The applicant also said the meeting could continue at CEIU22's house if she was comfortable with it. The applicant told CEIU22 that he was quite excited about the prospect of a meeting and that he was "quite horny, actually, thinking about it all hehe".
7. The applicant also asked CEIU22 if she had shown her daughter the video of him masturbating and ejaculating. The applicant encouraged CEIU22 to show her daughter the video and speak more to her daughter about sex. On 14 September 2018, CEIU22 told the applicant that she had shown her daughter the video of him masturbating and ejaculating and that she seemed to like it. On 18 September 2018, the applicant and CEIU22 exchanged messages on Skype where the offender gave CEIU22 his mobile phone number so that they could speak on the phone.

Sequence 2 - Use carriage service to procure person believed to be under 16 years for sexual activity

1. Between 14 and 20 September 2018, the applicant posted a second advertisement on Locanto, again with the username "Eagle 6". On 20 September, the applicant was contacted by CEIU34 on the application available on the Locanto website. CEIU34 told the applicant that she was a 13 year old girl from Penrith.
2. The applicant told CEIU34 that he was "looking for a girl who likes to be naughty with a guy" and that he was a 50 year old man, who was tall, medium build with a "nice big fat one". The applicant and CEIU34 agreed to continue messaging one another on Kik and Messenger. On 21 September 2018, the applicant contacted CEIU34 on the Locanto website asking whether she had obtained Kik. On the same day, the applicant sent a message to CEIU34 on Skype asking if she was around.
3. On 5 October 2018, the applicant and CEIU34 exchanged messages on Kik. The applicant talked to CEIU34 about masturbation and cunnilingus suggesting that he could meet her in public before they became sexually involved. The applicant told CEIU34 that he would not contact her unless she contacted him first and to delete the messages from her phone so that her parents would not see them.
4. On 24 and 25 September 2018, the applicant sent messages to CEIU34 on Skype asking if she was around. Then on 26 September 2018, the applicant sent a message to CEIU34 on Skype that said "Beginning to think that you are no longer interested. If that is the case, let me know" with a smiley face emoji finishing the sentence. On 2 October 2018, further messages were exchanged between the applicant and CEIU34 on Skype.
5. On 9 October 2018, the applicant and CEIU34 exchanged messages on Kik. They discussed cunnilingus and began arranging a day to meet in person and agreed on 11 October. The applicant asked CEIU34 for an image of her to verify that she was not an undercover police officer. During this exchange, the applicant sent the following message: "You said the camera in your phone is broken. Normally I would get you send me a pic of you holding up a sign with a date on it and a second pic either nude or in a bra and panties just to prove you are a young girl. Only real girls do that not the police or someone trying to set me up, so TBH not sure how to approach this".
6. The applicant also sent an image of his erect penis. The applicant told CEIU34 to wear a dress when they met in person. On 10 October 2018, the applicant and CEIU34 exchanged messages on Kik. The applicant told CEIU34 that he could not meet up on 11 October and that they would have to meet on another occasion. On 29 October, the applicant and CEIU34 exchanged messages on Kik. The applicant told CEIU34 that he wanted to perform oral sex on her and assured her that she would "love it". The applicant also explained to her how to perform fellatio on him. The applicant asked CEIU34 when they could meet and CEIU34 replied "um, I can maybe next week".
7. On 1 November 2018, the applicant and CEIU34 exchanged messages on Kik. The applicant told CEIU34 that he could take her to a nude beach in the school holidays. The applicant and CEIU34 agreed to meet on 6 November 2018 and the applicant said "Cool just make sure you don't tell anyone". The applicant also described how he would perform cunnilingus on her when they met in person.
8. On 5 November 2018, the applicant and CEIU34 exchanged messages on Kik. The applicant told CEIU34 that it was "Very naughty for a guy my age to meet a girl your age" and confirmed that they would meet at McDonald's in Penrith the next day.
9. On 6 November 2018, at 9.50am the applicant was arrested near the McDonald's restaurant on High Street Penrith. The applicant had a sachet of oral lubricant and a mobile phone in his pocket when he was arrested.

Sequence 3 - Possess child abuse material

1. On 6 November 2018, at about 12.10pm, New South Wales Police executed a search warrant on the applicant's house. They found a number of electronic devices including a Dell laptop which contained three images of child abuse material. The child abuse material found on the Dell laptop is described in the agreed facts as being three images of naked pubescent girls and is classified as category 2 material under the Interpol Baseline Scheme.
2. It is to be noted that the applicant was sentenced for offences against Commonwealth and State law pursuant to both Pt 1B Crimes Act 1914 (Cth) and Pt 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSPA).

Relevant sentencing principles

1. Her Honour set out various principles which applied to the offences under consideration. Her Honour noted that procurement offences fell into that class of offending for which general deterrence was the primary sentencing consideration. There was a paramount public interest in the promotion of the protection of children. A period of imprisonment is ordinarily imposed for this kind of offending.
2. Her Honour further noted that this Court in R v Asplund; Asplund v R (2010) 216 A Crim R 48; [2010] NSWCCA 316 set out relevant factors to be taken into account when making an assessment of the objective criminality of the offence. Such factors included the level of persistence in the use of a carriage service for grooming purposes, the nature of the material communicated, the extent to which the intent to engage in future sexual activity with the offender had developed, the nature of the future sexual activity intended, the age and power differential between the victim and the offender and the nature of the relationship between the offender and the victim.
3. Her Honour referred to Rampley v R [2010] NSWCCA 293 at [37] where McClellan CJ at CL discussed what weight ought be given to the fact that the proposed conduct would not have eventuated. His Honour said that such an offence was no less reprehensible when the offender was communicating with a fictitious person, whom they believed to be real, than when communicating with a real person. His Honour observed that the legislature provided for the offence to be committed in this manner so as to enhance the prospects of detection and accordingly deter offenders and minimise the use of the internet for the sexual corruption of children.
4. Her Honour took into account that in R v Fuller [2010] NSWCCA 195, this Court observed that although an offence may be more serious when communication is made with an actual child, and harm is done to that child, the primary object of the legislature in creating the offence was to prohibit the use of the internet by persons intent upon communicating with young persons. Although the presence of an actual victim might aggravate the offence, the absence of a victim would not mitigate that offence.
5. Her Honour observed that general deterrence was a factor a sentencing court must consider when sentencing for Commonwealth offences (Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8 at [12]). Her Honour took into account that grooming offences had the potential to do great damage to young persons in the community. The offence was hard to detect and general deterrence was of particular importance.
6. Her Honour stressed the need to protect children and young persons from predators using electronic facilities. This had been recognised by parliament when enacting these offences and such laws must be enforced by the courts so as to sentence people to an appropriately severe sentence.
7. Her Honour set out the following principles which applied to child pornography offences: "1. A term of imprisonment will ordinarily be expected for such offending. 2. The objective seriousness of the offending is ordinarily determined by the reference to the following factors. a) The nature and content of the material, in particular the age of the child and the gravity of the sexual activity depicted. b) The number of items or images possessed. c) Whether the material is for the purposes of sale or further distribution. d) Whether the offender will profit. e) In the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised. f) The length of time for which the pornographic material was possessed. 3. General deterrence is the primary sentencing consideration for offending involving child pornography and has been described as the paramount consideration. 4. Less or limited weight is given to an offender's prior good character. 5. The possession of child pornography material creates a market for the continued corruption and exploitation of children. 6. There is a paramount public interest objective in promoting protection of children as the possession of pornography is not a victimless crime as children are abused in order to supply the market. 7. The harm done is exacerbated by the circulation of images on the internet for indefinite periods. 8. The offending is not mitigated by the fact the offender does not pay or distribute the material." (Sentence judgment 9.1-10.2)
8. The sentencing judge set out her assessment of the objective seriousness of each of the offences: "Sequence 1 - Transmit child pornography material The material transmitted contained conversations and video footage which indicates that the offender was an active and willing participant in the conduct. The discussion commenced over the website platform and progressed to Skype. It involved an undercover officer. The content involves fantasies of engaging in sexual acts with children. The conduct took place on eight occasions over a period just over a month. I note that the offender is to be sentenced solely for transmission of text based conversations which meet the definition of child pornography material and that this is of lesser seriousness than if the material involved images of real children Dodge v The Queen [2002] WASCA 286. However such material is not considered harmless as it normalises exploitative activity involving children and fuels the demand for such material, Ponniah v The Queen [2011] WASCA 105 at [61]. Given the text content I accept this offending is not in the range considered in Garside and towards the lower end of the relevant scale, but it is not harmless for the reasons cited above. Nonetheless imprisonment is warranted. Sequence 2 - Use carriage service to procure persons believed to be under 16 for sexual activity The conduct took place over an approximate period of six weeks. It involved explicit communication, assumed by the offender to be with a 13 year old girl, during which he requested topless images of her, transferred pictures of his own penis, discussed sexual activity he would teach her, encouraged her to delete their messages to hide their discussions, encouraged and planned for them to meet. I accept that the evidence indicates the offender well understood the criminality of his behaviour. I do not accept, to the required degree, that the lubricant as described was for the purpose suggested by the Crown. I would be required to do so beyond reasonable doubt and I do not do so. I find that the offending was objectively serious as it involved an actual plan to meet which the offender, by his attendance, was prepared to carry through. This offence is the most serious of the three offences charged. Sequence 3 - Possess child abuse material The images related to three images of naked pubescent girls falling within category 2 of Interpol Baseline categorisation. I accept this indicates that there were images of at least two girls over three images. These items are accepted to be within the lower range of the scale of criminality for offences of this type and category." (Sentence judgment 10.2-11.8)

Subjective circumstances

1. The sentencing judge had before her a psychological report of Ms Gumbert-Jourjon, dated 20 September 2019, together with documents confirming the applicant's poor cardiac health. At the time of sentence, he was aged 64 and was in custody for the first time. The applicant did not give evidence in the sentence proceedings.
2. The sentencing judge noted that the applicant had come from a family where there was no history of neglect or abuse. He had been married between 1975 and 1986 and had a daughter and two sons. He had lost contact with his children but in recent years had rebuilt a relationship with them. Her Honour noted that the applicant had been in a number of employments, including that of a police officer between 1975 and 1988, a private investigator working for the Royal Commission into the NSW Police Service and an investigator working for the Independent Commission Against Corruption (ICAC). After leaving ICAC, he worked as a security manager for Brambles and between 2007 and 2012, lived in Bahrain working in the management of dangerous goods air freight. After returning to Australia, he opened a business selling sunshades, which he was running at the time of his arrest.
3. In 1997 and 1998, he was charged with breaching a domestic violence order and received a non-conviction, pursuant to s 556A (as it then was). The applicant had no history of illicit substance abuse beyond limited recreational drug use in his youth.
4. The psychological report from Ms Gumbert-Jourjon set out the applicant's sexual history. Her Honour took into account the following matters in her report.
5. The applicant's first sexual experience was at the age of 12 and subsequently he has had a large number of partners which he estimated to be about fifteen hundred. The applicant had identified as heterosexual for most of his life, and as he aged had started to become attracted to adult women who were younger than him, i.e. in their 20s. The largest age gap he gave for a relationship was with his Thai girlfriend, who was aged 19 when they first partnered.
6. The applicant denied to the psychologist a history of paraphilic interest prior to the last two years, when he commenced becoming interested in underage children at the age of 62. He reported that he first became interested in younger pubescent and prepubescent girls when he started coming across incest material whilst scrolling through porn sites.
7. In early 2018, he came across another site featuring visibly underage and prepubescent children and became aroused by the material. He reported that this disturbed him to the extent that he considered requesting psychiatric referral from his GP, but ultimately did not pursue it. Instead, the applicant persisted in accessing similar material and by mid to late 2018, he was viewing such material on a daily basis. It was at around this time, that the applicant began to use forums to contact women in the hope that he could find someone with whom he could visit nudist beaches.
8. He denied to the psychologist having directly intended to begin contacting younger girls, but admitted that he had been talking to persons under 16 and stated that he was acting as a shoulder to cry on for one young girl online as she was a survivor of sexual abuse. He told the psychologist that he believed that he was helping her and never arranged to meet her in person. When asked directly by the psychologist if he would have made sexual advances towards her in person, the applicant stated "I can't say for sure, I certainly hope I would not have".
9. Based on this interview, Ms Gumbert-Jourjon opined that the applicant met the DSM-5 criteria for a diagnosis of paedophiliac disorder. She did so for the following reasons: "1) Over a period of at least six months he experienced recurrent intense sexually arousing fantasies, urges or behaviours involving activity with prepubescent children aged 13 years or younger, and 2) He has acted on these urges."
10. Ms Gumbert-Jourjon opined that he displayed some insight into the harm associated with his offending conduct but at other times, he displayed a lack of insight, for instance maintaining that he was helping a teenage child when he was engaging in a pattern of sexual grooming.
11. The applicant accepted that he would receive a sentence of imprisonment and wanted to participate in treatment to understand the reasons for his sexual interest in children. Her Honour noted that evidence was called to the effect that he had sought treatment while he was in custody.
12. Applying the Static-99R actuarial risk assessment, Ms Gumbert-Jourjon categorised him as having a low risk of sexual recidivism. The psychologist did, however, acknowledge the limitations of such risk assessments. Ms Gumbert-Jourjon opined that while paedophilia was generally considered a life long condition, the risk of acting out sexual behaviours with children may fluctuate with age and the applicant's advanced age was considered a protective factor against future offending. Ms Gumbert-Jourjon opined that the applicant would benefit from participation in treatment programs provided by Corrective Services in order to develop insight into his offending behaviour and to mitigate his future risk.

Hardship in custody

1. The sentencing judge noted that following his arrest, the applicant suffered a cardiac episode which required hospitalisation. Blockages were shown in his arteries which are not amenable to stenting. The applicant is currently housed in a protection unit in the prison system. Her Honour accepted that a term of imprisonment would be more onerous for him due to his age, his deteriorating health and being in protection. Her Honour noted, however, that no specific evidence had been placed before her as to the practical extent of any hardship based on his physical condition or his placement in the prison.
2. In sentencing for the Commonwealth offences, her Honour was conscious of the effect of s 16A(1) of the Crimes Act 1914 (Cth) in that "A court must impose a sentence or make an order that is of a severity appropriate in all the circumstances". Her Honour also took into account the nature and circumstances of the offence and the period of time over which the offending took place, pursuant to s 16A(2)(c). Her Honour took into account the maximum penalties for each of the offences, namely 15 years, and noted that these provided yardsticks for the appropriate sentence. Her Honour took into account the deterrent effect of the sentence on both the offender and others, pursuant to s 16A(2)(j) and (ja).
3. Her Honour appreciated that the sentence to be imposed must make clear to other like minded persons that these types of offences are abhorrent and those who engage in such conduct will be met with punishment that reflects the community's attitude to child exploitation. Her Honour opined that sentences of appropriate severity had to be imposed in cases such as the present to reflect the principles of deterrence and denunciation.
4. Her Honour took into account the remorse and contrition expressed by the applicant to the psychologist and the plea of guilty. Her Honour allowed a discount of 25 per cent for the utilitarian value of that plea.
5. Both counsel had provided her Honour with a number of "comparable" cases. On that issue, her Honour had particular regard to the decisions of The Queen v Gajjar (2008) 192 A Crim R 76; [2008] VSCA 268 and Moore v R [2018] NSWCCA 26.

Ground 1 - The sentence imposed by her Honour was manifestly excessive

1. The applicant accepted that he had engaged in very serious offending warranting the imposition of a fulltime custodial sentence and that the offending involved conversations of a highly sexualised nature and related directly to the potential of engaging in sexual conduct. The conduct involved persons that the applicant thought were real. Nevertheless, the applicant submitted that the entirety of the findings made by her Honour in relation to both the objective circumstances of the offending and his subjective case, were generally favourable to him. The applicant submitted that notwithstanding those findings, a substantial term of imprisonment was imposed.
2. The applicant submitted that there was an inexplicable inconsistency between the findings by her Honour and the sentence, to a point where the former was not reflected in the latter.
3. In making that submission, the applicant accepted that the claim of manifest excess would only be successful where on its face the sentencing outcome exceeded the notional range open to the exercise of the sentencing judge's discretion. The applicant submitted that comparable cases made good that submission for the s 474.26 offence (Sequence 2). The applicant submitted that a comparison of those cases provided general information as to the sentencing range for that offence and assisted in ensuring consistency in sentencing.
4. The applicant submitted that often greater guidance could be obtained from a survey of cases than from statistics because detail of specific circumstances of a case could be set out for the purposes of comparison. The applicant submitted that comparable cases could be placed before a sentencing court to determine whether sentencing patterns exist and to shed light on the proper range of sentences under consideration.
5. The applicant submitted that when regard was had to the comparable cases relied upon by him with respect to the Sequence 1 and 2 offences, it was clear that this sentencing outcome exceeded the notional range open to the exercise of the sentencing judge's discretion. The applicant did, however, concede that the mere fact that like offenders had received less for the commission of like offences, did not make out a case for manifest excess.
6. In order to support those submissions, the applicant relied upon five cases involving offences contrary to s 474.26 of the Criminal Code Act 1995 (Cth).

The Queen v Gajjar

1. In that case, the applicant pleaded guilty to an offence contrary to s 474.26 and was sentenced to 2 years and 6 months imprisonment with a recognisance release order which saw him released after serving 18 months of that term. The offence involved the applicant communicating via a chatroom with an undercover police officer posing as a 14 year old girl. The applicant waited at a train station for a sexual encounter. The applicant was aged 28. The Court noted that there were several aggravating features, including what was described as the applicant's "calculated and predatory conduct" which was reflected in him having actively sought out a child in an internet chatroom.

R (Cth) v Poynder (2007) 171 A Crim R 544; [2007] NSWCCA 157

1. The respondent pleaded guilty to two offences contrary to s 474.26 and was sentenced to imprisonment for 3 years with an order releasing him on a recognisance after serving 1 year and 3 months. There were also two counts of send offensive communication, contrary to s 474.17 on a schedule. The offending included two persons whom the respondent thought were a 15 year old male and a 15 year old female. The offending involved 540 calls that were recorded discussing sexual activity with children and animals. There were discussions of rape. The Court of Criminal Appeal dismissed a Crown appeal which raised manifest inadequacy. The respondent was aged 50 at the time of the offending. It was accepted that the sentencing judge had properly referred to all sentencing considerations, including general deterrence.

R v Fuller

1. A Catholic priest pleaded guilty to 13 sexually explicit communications with persons representing themselves as being 13 years of age. He encouraged masturbation, used a webcam to transmit himself masturbating, arranged a meeting and suggested further sexual activity. He received a term of imprisonment of 18 months with a 6 months non-parole period following a Crown inadequacy appeal.

Moore v R

1. The applicant was aged 54 and was charged with an offence contrary to s 474.26, as well as an offence of possessing child abuse material, contrary to s 91H(2) of the Crimes Act 1900 (NSW). The applicant exchanged sexually explicit communications with a fictitious 14 year old. The applicant activated a webcam and masturbated. In respect of the first of these offences, he was sentenced to 4 years imprisonment with a non-parole period of 2 years and 6 months. With respect of the second offence, the child abuse material comprised between 1522-3490 images and 59-83 videos. For that offending, the applicant was sentenced to a fixed term of 2 years imprisonment. In total, the offender was sentenced to a non-parole period of 3 years with a head sentence of 4.5 years. The court refused leave to appeal against sentence on the basis that it was not manifestly excessive.
2. The applicant in that case had a previous conviction for the indecent assault of a child under the age of 16. The sentencing judge was unable to reach a conclusion as to the prospects of rehabilitation, nor did he find remorse. The sentencing judge concluded that the applicant showed little insight into the consequences of his offending and showed a callous disregard for the victims.

Clarke-Jeffries v R [2019] NSWCCA 56

1. The applicant was aged 18 and was sentenced for one count pursuant to s 474.26(1), one count of using a carriage service to solicit pornography, contrary to s 474.19(1)(a) and one count of blackmail, contrary to s 429K(1)(a) of the Crimes Act 1900 (NSW).
2. The applicant had sent messages to a 15 year old victim to procure sexual activity and the victim had sent him photographs of her breasts at his request. The applicant sought money from the victim in exchange for the destruction of the photographs. The applicant was found to have had serious mental health issues, had come from a difficult background, had a supportive family and a medium to low risk of re-offending. His appeal against sentence was allowed and in respect of the 474.26 charge, he received a 2 year sentence to be released on recognisance after 9 months. For the s 429K(1)(a) offence, he received a fixed term of 7 months.
3. In relation to that case, the applicant conceded that the age of the applicant, and the different subjective circumstances may well explain the difference in that verdict and the sentence imposed by her Honour in this case.
4. The applicant submitted that when one had regard to those cases, the sentence imposed by her Honour for Sequence 2 exceeded the notional range open to a sentencing judge's discretion given the objective features of the applicant's offending. The applicant submitted that sentences in the order of 3 years and 6 months appear to have been reserved for offending which was much higher up the criminal scale.
5. In the course of setting out the above cases, the applicant acknowledged the difficulty involved in the exercise of selecting comparable cases because it was difficult to find cases involving offences where the conduct was limited to a s 474.26(1) offence and offences contrary to s 474.19(1) of the Criminal Code Act 1985 (Cth).
6. The applicant carried out a similar exercise in relation to the offending in Sequence 1 (i.e. offences contrary to s 474.19(1)) to again illustrate what was submitted to be an appropriate sentencing range and to demonstrate thereby the manifest excess of the sentence imposed by her Honour.

Director of Public Prosecutions (Cth) v Zarb (2014) 46 VR 832; [2014] VSCA 347

1. The applicant entered a plea of guilty to a count of access involving hundreds of images and two transmission offences involving 14 images to two recipients. The applicant received a sentence of 3 months to the access offence and a 2 year CCO for the transmission offence.

Kenworthy v The Queen (No. 2) [2016] WASCA 207

1. The applicant was charged with two access offences and five transmission offences. The applicant had engaged in communications with people holding themselves out to be fathers of very young children who were willing to trade child pornography images. The offending involved the exchange of thousands of images over an eight week period. The applicant received a sentence of 2 years and 9 months imprisonment with a non-parole period of 22 months.

Lyons v R [2017] NSWCCA 204

1. The applicant was charged with multiple offences including two transmission offences. The transmissions involved emails to two recipients involving dozens of child pornographic files made up of images and videos. The applicant was sentenced to imprisonment for 18 months for the two transmission offences. These included the transmission of child abuse images over a six week period.

Lyons v The Queen [2019] VSCA 242

1. The applicant was charged with a transmission offence, together with other offences. The transmission offence comprised mostly textual child pornography, some images and one video of a child being murdered. The textual child pornography was described as "sadistic and extreme". The applicant received a sentence of 18 months for the transmission offence.
2. The applicant submitted that when regard was had to those cases, it was clear that the sentences imposed by her Honour for Sequences 1 and 2 were well outside and in excess of the range of sentences set out in the above examples. The applicant submitted that he had been unable to find any comparable low end examples of transmission offences where a sentence of 18 months imprisonment had been imposed, such as occurred in respect of Sequence 1.
3. In conclusion, the applicant submitted that the sentences imposed for Sequences 1 and 2 were manifestly excessive and that a lesser sentence was warranted.
4. No complaint was made by the applicant about the sentence for Sequence 3.

Consideration

1. In Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221, R A Hulme J conveniently summarised the principles relevant to this ground of appeal. His Honour stated: "443 When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. • Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. • Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. • It is not to the point that this Court might have exercised the sentencing discretion differently. • There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. • It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
2. The above statement of principle is consistent with what was said by the plurality in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 (Hili) as follows: "59 As was said in Dinsdale v The Queen, "[m]anifest inadequacy of sentence, like manifest excess, is a conclusion". And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate "is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases". Rather, as the plurality went on to say in Wong, "[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons". But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that "the sentence imposed in these matters is so far outside the range of sentences available that there must have been error"."
3. In a case such as the present, it is important to bear in mind the limitations on the use that can be made of so called comparable cases. What is to be sought is consistency in legal principle by the treatment of like cases alike and different cases differently: Hili at [47]-[49]. As was pointed out in that case, approving what was said by Simpson J in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1, [2010] NSWCCA 194 at [303]-[305] (De La Rosa) a history of sentencing can reveal a range but does not establish that the range is the correct range. Past sentences can stand as a yardstick against which a sentence can be measured but it is only by examination of the whole of the circumstances that have given rise to the sentence that any unifying principle may be discerned: Hili at [54]; see also Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [27]-[28]; R v Pham (2015) 256 CLR 550; [2015] HCA 39 at [28]; Director of Public Prosecutions v Dalgliesh (a pseudonym) (2017) 262 CLR 428; [2017] HCA 41 at [61]-[83].
4. The choice of four or five cases which are said to be comparable does not assist the applicant. This point has been made on a number of occasions (Director of Public Prosecutions v Dalgliesh; R v Pham). As Adamson J observed in Vandeventer v R [2013] NSWCCA 33 at [45]: "One cannot adjudge whether a sentence falls within an appropriate range by reasoning from particular instances. Applicants will always be able to find cases where offenders appear to have been dealt with more leniently. So, too, will the Crown be able to find cases where offenders have apparently been dealt with more severely than the applicant for leave to appeal on sentence. This is not, however, the way in which this Court determines whether a sentence is manifestly excessive."
5. The difficulty with the comparison of cases by the applicant is that manifest excess is not established simply by a comparison of sentences imposed in other cases which are often markedly different. To warrant intervention, misapplication of principle must be established (Ngati v R [2018] NSWCCA 32 at [34]). As was set out in Vandeventer v R above, there will always be cases where other offenders appear to have been dealt with more leniently. What must be achieved is consistency and application of relevant principle, not numerical or mathematical equivalence.
6. As discussed in Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 at [64]: "Ultimately the object of the sentencing exercise is to impose individual sentences that, so far as possible, accurately reflect the gravity of each offence while at the same time rendering a total effective sentence which, so far as possible, accurately reflects the totality of criminality comprised in the totality of offences. That is an exercise which involves a significant measure of discretionary moderation and accumulation of individual sentences according to the particular circumstances of each case. Up to a point, therefore, it is something about which sentencing judges might take different views of which neither could be said to be wrong. ..."
7. In De La Rosa, Simpson J said at [303]-[305] of the sentencing pattern which may appear from a consideration of comparable cases: "303 A history of sentencing can establish a range of sentences that have in fact been imposed. Such a history does not establish that that range is the correct range, nor that either the upper or the lower limit is the correct upper and lower limit. Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts. 304 But it would be a mistake to regard an established range as fixing the boundaries within which future judges must, or even ought, to sentence. To take that attitude would be, de facto, to substitute judicial selection of sentences in individual cases for the boundaries of sentencing for a particular offence laid down by Parliament. In this case, that range is from 0 to 25 years. Of course, it is well established that the maximum sentence is reserved for the most serious cases. It is equally well established that it would be an extraordinary proposition that a person convicted of an offence of importing prohibited drugs would escape any custodial penalty. The point I am making is that the ranges of sentences actually imposed, while illuminating, are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence. But it is only by examination of the whole of the circumstances that have given rise to the sentence that "unifying principles" may be discerned: Wong and Leung, at [59]. 305 In the end, the sentencing discretion is individual: it must be exercised by the individual judge, in respect of the individual offender. ..."
8. Applying those principles to the facts of this case, it is clear that a selection of four or five cases where the sentences were less than those imposed by her Honour for Sequences 1 and 2, does not establish a range of sentences. It does no more than establish that in those cases, given their particular facts, a decision was made either by a judge at first instance or by an appeal court, that the sentences were within the appropriate range. It is still necessary to take the next step and demonstrate that the particular sentence or sentences under consideration were "unreasonable or plainly unjust".
9. For the following reasons, I am not persuaded that the "necessarily evaluative judgment" made by her Honour addressing all relevant considerations has resulted in a sentence that could be said to be "obviously wrong or not open" to her: De La Rosa at [69].
10. I have reached that conclusion because the nature and circumstances of the offences, the need for adequate punishment and the maximum penalties of 15 years imprisonment for each of Sequences 1 and 2, indicate that the offences are very serious. This is despite the fact that the offending in Sequence 1 is towards the bottom of the range for offending of that kind. It was conceded by counsel in the sentence proceedings that the offending in Sequences 1 and 2 was serious (T.17.1, 23.15). In relation to objective seriousness for Sequences 1 and 2 the factors taken into account by the sentencing judge were relevant and important.
11. As her Honour stressed, general deterrence is an important and highly relevant matter in sentencing for these type of offences. The Crown made submissions to that effect in the sentence proceedings which were clearly accepted by her Honour.
12. While it is true that her Honour made favourable findings in respect of the applicant's subjective case, that did not overcome the objective seriousness and moral culpability of the applicant associated with his offending, in Sequences 1 and 2.
13. Significantly, the applicant does not challenge any of the principles referred to by her Honour nor does he challenge any of her Honour's factual findings. In those circumstances, what confronts the applicant fairly and squarely are the statements of principle set out above to the effect that for this ground to succeed, her Honour's evaluative judgment when formulating sentences must be shown to be unreasonable or plainly unjust.
14. As was stated by the plurality (French CJ, Keane and Nettle JJ) in R v Pham: "28 ... (7) Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle."
15. This ground of appeal has not been made out.

Ground 2 - Her Honour erred in her assessment of the objective seriousness of Count 2

1. The applicant submitted that by reference to the observations of Macfarlan JA in Sponberg v R [2017] NSWCCA 120 at [23]-[26] her Honour made no finding of where on the scale of seriousness the offending described in Sequence 2 fell and that this constituted error. The applicant submitted that in assessing objective seriousness what was required was for the sentencing judge to identify fully the facts, matters and circumstances which the judge concludes bear upon the judgment that was reached about the appropriate sentence to be imposed (Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39). The applicant submitted that the principles outlined by Macfarlan JA in Sponberg were well settled.
2. The precise finding criticised by the applicant was that her Honour found that the offending in respect of Sequence 2 was "objectively serious" and that it was the most serious of the three offences but she failed to specify where on the scale of seriousness the offending described in Sequence 2 fell. The applicant submitted that this gave rise to a sentencing error. This was because all offences involving the sexual interference with children, or sexual conduct relating to children, are objectively serious.
3. The relevant quotation from Sponberg on which the applicant relied was: "23 As Simpson J said in R v Campbell [2014] NSWCCA 102 at 27, "[t]he assessment of objective seriousness is, and has always been, a critical component of the sentencing process". This remains the position notwithstanding the High Court decision in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39. 24 As Latham J said in R v Cage [2006] NSWCCA 304 at [17], "[a] bare recitation of the facts constituting the offences and a reference to the 'objective features of the offences' does not satisfy the requirements of sentencing" (see also R v Van Ryn [2016] NSWCCA 1 at [129]). Where an offence is "not so grave as to warrant the imposition of the maximum prescribed penalty", a sentencing judge "is bound to consider where the facts of the particular offence and offender lie on the 'spectrum' that extends from the least serious instances of the offence to the worst category, properly so called" (R v Kilic (2016) 91 ALJR 131; [2016] HCA 48 at [19]; and see Ibbs v The Queen (1987) 163 CLR 447; [1987] HCA 46 at 452). As R A Hulme J said in Van Ryn, "[i]t is one thing to refer to the general proposition that child sexual assault is a serious crime; it is another to identify the relative seriousness of the case at hand" (at [137]). This observation can be applied outside of the sexual crime context in which it was made. 25 In the present case, the sentencing judge did not indicate where the applicant's Count 1 offence lay in the spectrum of offences, nor did he make any assessment at all of its objective seriousness (see Van Ryn at [133]). As indicated in [20] above, his Honour was recorded as saying "Charge 1 is a very serious, large amount of drugs involved". It is possible that his Honour was intending to make a statement in that sentence about the seriousness of the applicant's offending. Nevertheless, this Court can do no more than act upon the words recorded which, read literally, relate to the amount of drugs involved, and not to an assessment of the objective seriousness of the offence. Whilst the weight of the drug involved is a relevant factor in assessing the objective seriousness of an offence, it is not the only, or even chief, factor (Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [67]-[70]). The language that the sentencing judge used in relation to the Count 1 offence is to be contrasted with the language he used in relation to the Count 2 offence, which he described as "near the bottom of seriousness for these type of offences" ([20] above). 26 It is to be expected that there will be infelicities of expression in judgments given by judges who are subject to the demands and pressures of busy lists, and the focus of this Court should be on substance rather than form (as to the latter proposition see Delaney v R (2013) 230 A Crim R 581; [2013] NSWCCA 150 at [56]). Nonetheless, the inescapable conclusion in the present case is that his Honour's sentencing judgment does not contain an assessment of the objective seriousness of the Count 1 offence, either relative to other offences of its type or at all."
4. The applicant submitted that the language which her Honour used in relation to the Sequence 2 offence was to be contrasted with the language which her Honour used in relation to Sequences 1 and 3 offences where she found that those offences fell towards the lower end of the scale for those type of matters.
5. The applicant submitted that this failure by her Honour constituted an error in sentencing which requires this Court to re-sentence the applicant and in doing so, impose a lesser sentence particularly in relation to Sequence 2.

Consideration

1. It needs to be understood that the Sequence 2 offence is a Commonwealth offence. As such, there are no concerns about standard non-parole periods in relation to which a finding of objective seriousness along a scale of seriousness may need to be made in certain circumstances. This was the genesis of the observation by the Court at [29] of Muldrock. Accordingly, it was not necessary for her Honour to engage in such an assessment if otherwise she had made a finding as to the objective seriousness of Sequence 2.
2. When reading her Honour's judgment, one needs to keep in mind the context in which it was delivered and what the issues were between the parties. In that regard, the following exchanges between counsel for the applicant and her Honour in the proceedings is instructive. "COUNSEL: It is conceded at the outset that these are very serious offences. The offence particularly in relation to Counts 1 and 2 involved conversations of a highly sexualised nature and relate directly to the potential of engaging in sexual conduct." (T.17.1) "COUNSEL: I accept the Crown's submission that Count 2 is the most serious by far and Count 2 is the most serious by far because that conversation detailed the acts that the offender wished to participate in and it proceeded to confirm a meeting and him attending that meeting." (T.18.2)
3. In the light of that concession by counsel for the applicant, it was not necessary for her Honour to say more than she did, i.e. she made it clear that this was a serious offence and was the most serious offence out of the three for which the applicant was to be sentenced. Implicit in her Honour's judgment, looked at against the background of the concession by counsel for the applicant, was that not only was Sequence 2 the most serious of the offences but it was most serious "by far". It is tolerably clear therefore that what her Honour had in mind was an offence of approximately mid-range. To hold otherwise would, as was said in Sponberg, indicate the triumph of form over substance in relation to a matter which was not in issue in the sentence proceedings.
4. This ground of appeal has not been made out.
5. It follows from the above that the orders which I propose are: 1. Leave to appeal against sentence be granted. 2. The appeal is dismissed.
6. JOHNSON J: I agree with Hoeben CJ at CL.
7. LONERGAN J: I agree with Hoeben CJ at CL.

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