Woods v R

Court of Criminal Appeal (NSW)|2022-09-07|Before: Mitchelmore JA, Button J, Wright J

Solicitors: Smythe Wozniak Lawyers (Applicant) Commonwealth Director of Public Prosecutions (Crown) File Number(s): 2020/321895 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 07 December 2021 Before: Robinson DCJ File Number(s): 2020/00321895

Headnote [This headnote is not to be read as part of the judgment] The applicant pleaded guilty to one offence of using a carriage service to solicit child abuse material contrary to s 474.22(1) of the Criminal Code (Cth) and was sentenced to imprisonment for nine months but was immediately released under a recognizance release order pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth). The offending involved a police officer with an assumed online identity of a 14 year old female and thus there was no actual child victim. Furthermore, the applicant had a compelling subjective case including that he had long-standing mental health conditions and a degree of cognitive impairment. The issues raised by the applicant's grounds of appeal were: 1. whether the sentencing judge erred in finding, for the purpose of s 17A of the Crimes Act 1914, that no alternative to imprisonment was available; 2. whether the sentence imposed was manifestly excessive. Held as to issue (i): There was no appellable error in relation to the finding that no other sentence was appropriate in all the circumstances of the case. The fact that a sentence other than imprisonment was available did not have the consequence that a sentence of imprisonment was not available or open in all the circumstances of the case. The sentencing judge did not erroneously proceed on the basis that a non-imprisonment alternative could never be appropriate for child pornography offending: Wright J at [57] - [59], Mitchelmore JA at [1] and Button J at [2]. Held as to issue (ii): The sentence imposed was not outside the range of available sentences nor was it unjust or plainly unreasonable, especially, when regard was had to the specific nature of the conversations which constituted the offending and all the circumstances of the case as identified by the sentencing judge: Wright J at [72] - [73], Mitchelmore JA at [1] and Button J at [2].

Judgment

MITCHELMORE JA: I agree with Wright J.
BUTTON J: I agree with Wright J.
As for ground 2, in my opinion the sentence was (appropriately) lenient.
WRIGHT J: The applicant, Mr Ian Woods, seeks leave to appeal under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed on him by Robinson DCJ at Penrith on 7 December 2021.

Background

On 3 September 2021, the applicant pleaded guilty in the Local Court to a charge of using a carriage service to solicit child abuse material, contrary to s 474.22(1) of the Criminal Code (Cth) (the Criminal Code), which carries a maximum penalty of imprisonment for 15 years. The applicant also indicated that he wished to have taken into account on sentence, in accordance with s 16BA of the Crimes Act 1914 (Cth) (the Crimes Act), an additional offence of using a carriage service to groom a person under 16 years of age, contrary to s 474.27(1) of the Criminal Code. That offence carries a maximum penalty of imprisonment for 12 years.
The matter was committed to the District Court for sentence.
On 7 December 2021, the sentence proceedings were heard before Robinson DCJ. On that day, her Honour sentenced the applicant to imprisonment for nine months but directed by order that he be released under s 20(1)(b) of the Crimes Act forthwith upon his entering into a recognizance in the sum of $1,000 without security and with conditions to the following effect: 1. the applicant is to be of good behaviour for 2 years from 7 December 2021; 2. the applicant is to appear at court if required to do so because of any breach of the order; 3. the applicant is to accept the supervision and guidance of Community Corrections of New South Wales for as long as they determine necessary, but for no more than two years; 4. the applicant is to obey all reasonable directions of Community Corrections; 5. the applicant is to report to the Penrith office of Community Corrections before 4 pm on 10 December 2021; 6. the applicant is not to travel interstate or overseas without the written permission of his Community Corrections officer.
On 22 December 2021, the applicant filed a notice of intention to appeal.
On 25 May 2022, the applicant filed, within time, his notice of appeal seeking leave to appeal against his sentence.

Grounds of appeal

The proposed grounds of appeal if leave is granted are as follows: "1. The learned sentencing judge erred in finding that … no alternative to imprisonment was available in sentencing the applicant. 2. That the sentence imposed is manifestly excessive."
In order to consider these grounds it is necessary to review the sentencing judge's remarks on sentence in some detail.

Remarks on sentence

Robinson DCJ commenced her remarks by identifying that the applicant was to be sentenced for the sequence 4 offence of soliciting child abuse material using a carriage service contrary to s 474.22 (1) of the Criminal Code which carried a maximum penalty of 15 years' imprisonment. It was also noted that that the sequence 3 offence to be taken into account on a s 16BA schedule was using a carriage service to transmit a communication with the intention of making it easy to procure the recipient to engage in sexual activity, the recipient being someone whom the applicant believed to be under the age of 16 years contrary to s 474.27 (1), carrying a maximum penalty of 12 years imprisonment.
Her Honour then summarised the agreed facts. These included that the applicant lived with his parents and worked at a factory warehouse. He had a mild intellectual disability, attention deficit hyperactivity disorder and Tourette's syndrome, as well as learning and speech difficulties. On 2 June 2020, the applicant commenced an online chat with a female police officer with an assumed online identity (AOI) of a 14 year old female child whose username was "Ashygirlxxxx". The sentencing judge continued: "On commencing the chat, the [applicant] told the AOI that he was 28 years of age and asked how old she was, saying to her, 'I know you're under 18.' The AOI responded, 'I am 14.' Shortly thereafter the [applicant] told the AOI, 'you're a very cute, beautiful 14-year-old.' He asked her, 'Do you watch porn and do you like talking older guys more I'm guessing?' The [applicant] asked the AOI if she ever kissed someone or had sex. He said to her, 'You like the thought of slowly kissing lovingly with an older guy?' Later the [applicant] said, 'I'm just saying, if I was there with you, would you like that we kept saying, "I love you," though we could have phone sex one day if you like and imagine we were masturbating each other and having sex as we tell that we love each other over the phone. That's if you want to phone sex with me one day.' The AOI responded, 'K sure, that sounds fun. I have to do it when mum's not home though.' That conduct founds part of the offence listed on the schedule, being sequence 3. The [applicant] then sent the AOI an image of a man from the neck down naked, within a erect penis, and said, 'Hope you like it.' He said, 'Can I see? That's if you're all right with show me.' The AOI then sends an image of a clothed female sitting cross-legged on a chair. The [applicant] responds, 'I want to kiss and rub those lovely legs of yours. I'm stroking my cock right now, imagining that we were together, both naked and cuddling each other and all we are doing is slowly kissing lovingly. I love you babe. Is it all right if I can see you naked?' The AOI then sends an image of a female from behind with a bareback and wearing underwear from the shoulders down. That conduct founds the principal offence, being sequence 4. The AOI [and] [applicant] then arranged to communicate via text message to hide the messages from the AOI's mother. A report from the [applicant]'s iPhone shows messages sent on the evening of 3 June 2020, including the following: 'If you were here I would show you porn about dominant girls, and yes, you'd be sitting on my lap while I cuddle you as we watch them.' That communication continued the conduct found in sequence 3. The messages on the [applicant's] phone also included a request by him to the AOI for the messages to be deleted."
The sentencing judge noted that, on 11 November 2020, the applicant was arrested and released on bail. At this point, her Honour recorded that the applicant did not spend any time in custody in relation to this matter and had no prior criminal convictions.
Under the heading "General principles for sentencing, Commonwealth offences", the learned sentencing judge referred to the overarching requirement, imposed by Pt 1B of the Crimes Act, that a sentence was required to be of a severity appropriate in all the circumstances of the offence and noted the requirement in s 16A(2) to consider the matters listed in that section to the extent they are relevant.
Her Honour then expressly noted that: "[t]he Court is not to pass a sentence of imprisonment unless satisfied that no other sentence is appropriate in all the circumstances and having considered all other available sentences."
This observation reflected the requirement found in s 17A of the Crimes Act. The sentencing judge's general consideration in this regard was as follows: "Offences involving child abuse material are considered especially grave by both the courts and the legislature. As helpfully summarised by the Crown, Australian appellate courts have consistently stated that a number of principles apply for sentencing for child pornography offences. They include the following: a term of immediate imprisonment will ordinarily be expected for such offending; general deterrence is the primary sentencing consideration for offending involving child pornography, described as being the paramount consideration; less or limited weight is to be given to the offender's prior good character and personal factors in mitigation must be given less weight. Offending involving child pornography occurs on an international level and is becoming increasingly prevalent with the advent of the Internet as an accessible means of allowing people to access and obtain child pornography. Offending involving child pornography is difficult to detect given the anonymity provided by the Internet. The harm done to children exploited has been described as profound, exacerbated by the continued circulation of images on the Internet indefinitely. There is a paramount public interest objective in promoting the protection of children as the possession of child pornography is not a victimless crime. Children are sexually abused in order to supply the market. Finally, the fact that an offender does not pay to access child pornography websites or was not involved in the distribution or sale of child pornography does not mitigate the offending."
As to the nature and circumstances of the offence, as referred to in s 16A(2)(a), and objective seriousness, Robinson DCJ referred to the maximum penalty and acknowledged: 1. the factors identified by the Crown relevant to considering objective seriousness, which included that the applicant believed he was communicating with a 14-year-old female, the offending was of short duration but involved the immediate introduction of sexualised concepts and references to sexual activity but was not otherwise particularly depraved, the applicant sent an image of himself naked and requested a naked image of the intended victim, the applicant sought to groom the intended victim by referring to sexual concepts such as dominant girls, the applicant expressed the desire to engage in sexual activity and attempted to conceal the offending to protect his anonymity by asking the intended victim to delete the messages; 2. the factors to which the applicant drew attention including that the conduct appeared to have been voluntarily ceased by the applicant, its relatively short duration, the lack of any actual child victim, the lack of any aggravating features such as threats, intimidation or bribes, and the fact that the behaviour could be described as unsophisticated and generally reflective of the applicant's level of immaturity.
Noting in particular the limited duration and extent of communication and its unsophisticated nature, her Honour found that the offending in both instances fell "well below mid-range, with sequence 3, the schedule offence, falling below that of sequence 4."
After referring to the principles relating to taking other offences into account, the sentencing judge noted that the principal (sequence 4) offence arose during the course of the schedule (sequence 3) offence and was largely reflective of a continuing course of conduct and thus the schedule offence would only have a limited impact on the sentence to be imposed.
As to general and specific deterrence and the need for adequate punishment referred to in s 16A(2)(ja), (2)(j) and (2)(k), her Honour said: "As earlier acknowledged and accepted, general deterrence is of paramount importance in matters involving child abuse material. The public interest in protecting children from sexual exploitation and abuse is high. Such offences must be denounced. Deterrence and denunciation, however, have a lesser role to play in this sentencing exercise due to the reduced moral culpability of the [applicant], which I will refer to more fully shortly."
In relation to the circumstances of the victim referred to in s 16A(2)(d) and (2)(ea), it was noted that in this case, there was no victim as contemplated by those provisions.
Her Honour next turned to consider the character, antecedents, age, means and physical or mental condition of the applicant as referred to in s 16A(2)(m). The applicant's age and lack of prior criminal history were noted and her Honour summarised the extensive material tendered on the applicant's behalf. That summary included that the applicant was single with no dependents living with his parents, his family described him as being timid, gentle and quiet with a range of previously mentioned diagnosed conditions.
The sentencing judge quoted from the report of his treating psychiatrist, Dr Pusic, which disclosed that the applicant was assessed as being in the lower end of the borderline intellectual disability range, noted his education and successful transition into the workforce, at least in supported employment, and confirmed the diagnoses of borderline range intellectual disability, attention deficit disorder, specific learning disorder and Tourette's disorder. It was recorded that Dr Furst, forensic psychiatrist, in his report agreed with Dr Pusic's diagnosis and opined that the applicant was probably functioning at the level of a typical 14-year-old male. Her Honour went on to note that Dr Pusic's opinion was that the applicant's limited cognitive capacity, limited capacity and communication skills, his poor social skills and, in particular, his difficulties in finding appropriate expression of sexual desire led him to seek sexual gratification through the Internet and that Dr Furst was of substantially the same opinion, observing that because of the applicant's social immaturity and low level of intellectual functioning, he was more inclined to communicate with younger people than with people his own age and made him less aware of the potential consequences of his actions.
The sentencing judge then went on to refer to the counselling received by the applicant in relation to which he was said to be progressing well and to the recommended treatment plan of Dr Furst who was of the opinion that the applicant would be vulnerable if required to spend time in full time custody due to his low level of intellectual functioning and his relatively poor verbal communication skills. It was noted that Dr Pusic supported that plan and was willing to continue to treat the applicant.
Her Honour referred to the evidence of the applicant's father concerning his social isolation.
The sentencing judge found that the applicant's cognitive impairment and mental conditions reduced his moral culpability for the offending and accepted Dr Furst's opinion that there was a correlation between his offending and his conditions. As a consequence, it was held that "denunciation, general and specific deterrence should be moderated in this sentencing exercise" and her Honour continued: "It is also accepted that the subjective circumstances of the [applicant], which include his impairment and conditions, may have a bearing on the kind of sentence that is to be imposed on the [applicant]. I also accept the submission made on his behalf that his level of maturity is relevant in the sentencing exercise. He presents with a mental age of someone far younger than his current years. Consequently, there is an increased need for rehabilitation at the expense of focus upon deterrence."
As to contrition referred to in s 16A(2)(f), her Honour accepted that the applicant has shown contrition, understood the seriousness of his offending and had taken and would continue to take genuine steps towards addressing it.
It was accepted that a discount for the utilitarian value of the plea of guilty was appropriate and was quantified at 25%.
In relation to the deterrent effect on the applicant referred to in s 16A(2)(j), the learned sentencing judge said: "I accept that specific deterrence has a role generally to play in offences of this type, however, for reasons earlier indicated, I acknowledge that it has reduced relevance here, noting the reduced moral culpability of the offending. I also accept the opinions of Dr Furst and Dr Pusic, that the offender does not present with any paedophilia tendencies, nor any elevated risk of reoffending of a sexual nature. That observation, in combination with his ongoing family support and supervision, increased activity, current treatment and his own increased understanding of the seriousness of his actions, reduces the need for specific deterrence to be fully reflected in the sentence. In forming that view, I acknowledge the relevance of the offence on the schedule. I do not accept the Crown's submission that specific deterrence ought be elevated due to the attempts made by the offender to conceal his activities. Those attempts were minimal, if at all, and not inconsistent with the submission made on his behalf that his request to delete the messages was recognitions for the error of his behaviour and an indication that he was voluntarily ceasing it."
As to the applicant's prospects of rehabilitation referred to in s 16A(2)(n), her Honour reviewed the lay and expert evidence and found that the applicant was "at a low risk of reoffending generally and [did] not display any particularly concerning risk of sexual reoffending".
Next, Robinson DCJ considered the information concerning comparative cases provided by the Crown. While accepting that each case turns on its own individual facts and circumstances, her Honour acknowledged that the cases indicated that even persons suffering with significant cognitive disabilities have received terms of imprisonment for offending of the type in question. The sentencing judge referred in particular to the Victorian Court of Appeal decision in DPP (Cth) v Boyles (a pseudonym) [2016] VSCA 267 noting that it was submitted by the applicant that since in that case, a lack of reduction in moral culpability of the offender led to the community-based order imposed at first instance being held to be inappropriate, the presence of reduced moral culpability in the applicant's case meant that a community order was not ruled out.
In determining the actual sentence to be imposed, her Honour noted the Crown's submission that the only appropriate sentence to reflect the nature of the offending and the relevant sentencing principles was a custodial sentence but her Honour also recorded that the Crown did not, in effect, oppose any term of imprisonment being immediately suspended. It was recorded that it was submitted on the applicant's behalf that a combination of the low objective seriousness and his particular subjective case moderated the more punitive impact of relevant sentencing principles so that "the offending does not cross the threshold set out in s 17A requiring a sentence of imprisonment." Rather it was submitted that the offending could be adequately dealt with by way of an order under s 20(1)(a) of the Crimes Act, the State equivalent being a community correction order. The sentencing judge also recorded the applicant's alternative submission that: "should the Court be of a view that a term of imprisonment is required, any sentence of imprisonment would provide for the offender's immediate release pursuant to s 20(1)(b) of the Crimes Act."
Her Honour also noted further submissions on the applicant's behalf, based on the comments of Basten JA in Blackett v R [2021] NSWCCA 210 at [47]-[48], to the effect that a sentence of imprisonment would not be just and appropriate.
The sentencing judge continued: "I have taken all of those submissions into account, together with all of the material earlier identified. However, I am satisfied in this instance that no sentence other than one of imprisonment is the appropriate penalty. I am not satisfied that a sentence other than that would appropriately reflect the nature of the conduct generally and the need to reflect, albeit to a reduced extent, the harm that flows to victims of such behaviour and the need to generally denounce such conduct and to deter others from similar offending. However, whilst I make that finding and acknowledge those relevant factors, the [applicant's] case places it well outside of a typical one. The [applicant's] subjective circumstances are complex. He has long-standing mental health conditions and social challenges, complicated by cognitive impairment. His current mental age is consistent with a far younger male. His offending is more a result of his complexities and limitations, as opposed to any paedophilic interests or intention to engage in more insidious behaviour. … The combined effect of his complex presentation significantly reduces the need for any sentence to reflect the strong message that would normally be required for offending of this type. Further, requiring him to serve time in full time custody would not only expose his vulnerabilities but would be counter-productive to his continuing rehabilitation. Accordingly, whilst I formed the view that a term of imprisonment is appropriate, I intend to immediately suspend it on condition that the offender enter into an order to be of good behaviour, with other conditions attached. The length of the term of imprisonment has taken into account the 25% discount extended. The length of the term also takes into account the offence on the schedule. The length of the order that I impose will see the offender's rehabilitation continue in the community."
It was on that basis that her Honour sentenced the applicant to imprisonment for nine months but directed that he be released forthwith upon entering into a recognisance pursuant to s 20(1)(b) of the Crimes Act in the sum of $1000 without security and subject to the conditions referred to above.

Ground 1 - Submissions

Ground 1 related to whether the sentencing judge had erred by finding, for the purpose of s 17A of the Crimes Act, that no alternative to imprisonment was available in sentencing the applicant.
The applicant put his submissions in relation to this ground in a number of ways. In written submissions, it was contended in effect that the sentencing judge erred in finding that she was not satisfied that a sentence other than imprisonment "would adequately reflect the nature of the conduct generally and the need to reflect, albeit to a reduced extent, the harm that flows to victims of such behaviour and the need to generally denounce such conduct and to deter others from similar offending" on two alternate bases: 1. either her Honour failed to reduce or moderate the sentence even though she had already accepted that the need for denunciation and general and specific deterrence were moderated in the present case where the offending was found to be well below mid-range and rehabilitation should be promoted; or 2. her Honour impermissibly proceeded on the basis that a non-imprisonment alternative could never have been appropriate for this type of offending.
It was also submitted that it was open and appropriate in the circumstances for her Honour to impose an alternative to imprisonment and the finding to the contrary amounted to error.
The crux of the applicant's position was expressed during oral argument as being to the effect that it was not open to the sentencing judge to conclude that she was satisfied, after having considered all other available sentences, that no sentence other than imprisonment was appropriate in all the circumstances of the case. [1] This was said to be because "[i]f it [is] open to the Court to impose a sentence other than imprisonment then it is not open to impose a sentence of imprisonment" [2] and the applicant's "compelling subjective case coupled with the sentencing judge's assessment of the objective seriousness falling well below the midrange and the 25% utilitarian discount meant that it was open to her Honour to sentence the applicant to a recognizance release order under s 21A or a Community Corrections Order under the New South Wales sentencing regime". [3]
The applicant also submitted in effect that the error was that the sentencing judge made particular findings which required the sentence to be markedly reduced but failed to give full effect to those findings.
Specifically concerning general deterrence, the applicant submitted that this Court's decision in Totaan v R [2022] NSWCCA 75 meant that there must be some doubt about whether older authorities which spoke of the paramountcy of general deterrence in cases such as the present remained applicable.
The applicant contended that whether or not the sentencing judge was satisfied of the matter in s 17A(1) was an evaluative judgment of a binary nature and there was no broad discretion about this issue.
The Crown submitted that the sentencing judge did not err in concluding that no sentence other than one of imprisonment was appropriate. It was contended that the propositions to be applied in relation to offences involving child abuse material, as summarised in cases such as R v De Leeuw [2015] NSWCCA 183, were correctly taken into account by Robinson DCJ.
In particular the Crown submitted that, contrary to the applicant's submission: 1. the sentencing judge did "markedly reduce" the sentence on account of the applicant's subjective case, which was described as atypical and complex, reducing the need for a strong message, by way of denunciation and general deterrence, that would normally be required for offending of this type and this was reflected in the modest term of imprisonment and the recognizance release order; 2. in this regard, the sentencing judge did not fail to give appropriate weight to the applicant's subjective case and, furthermore, on appeal the Court will not readily interfere with a sentencing judge's assessment of the weight to be given to a particular factor or factors, citing Stephens v R [2009] NSWCCA 240 at [16]-[18]; 3. the sentencing judge did not impermissibly proceed on the basis that a non-imprisonment alternative could never be appropriate for this type of offending but rather considered those alternatives but concluded that none was appropriate in all the circumstances.
The Crown noted that none of the underlying findings or assessments made by the sentencing judge was challenged and also contended that the evaluative exercise to be undertaken in order to "impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence" as required by s 16A(1) of the Crimes Act, did not involve a binary or precise answer to the question of whether the threshold in s 17A has been crossed. It was submitted that such an approach would not be in accordance with sentencing principles concerning the nature of the sentencing process involving an instinctive synthesis.

Ground 1 - consideration

The first ground of appeal was that "the learned sentencing judge erred in finding that … no alternative to imprisonment was available in sentencing the applicant". This ground was based on s 17A(1) of the Crimes Act which relevantly provides: "A court shall not pass a sentence of imprisonment on any person for a federal offence … unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case."
It appears that the reference in ground 1 to a sentence alternative to imprisonment being "available" was intended to refer to such a sentence being "appropriate in all the circumstances of the case". If this is not so, the ground would appear to be misconceived.
The sentencing judge concluded, for the purposes of s 17A(1), that she was satisfied "in this instance that no sentence other than one of imprisonment is the appropriate penalty". That conclusion was based on her Honour's finding that she was: "not satisfied that a sentence other than [imprisonment] would appropriately reflect the nature of the conduct generally and the need to reflect, albeit to a reduced extent, the harm that flows to victims of such behaviour and the need to generally denounce such conduct and to deter others from similar offending."
The sentence imposed in the present case was made up of two elements: a term of imprisonment for nine months, which is a relatively short sentence for this type of offending; and, a recognizance release order pursuant to s 20(1)(b) of the Crimes Act under which the applicant was to be released forthwith.
Section 20(1)(b) is relevantly for present purposes in the following terms: "(1) Where a person is convicted of a federal offence or federal offences, the court before which he or she is convicted may, if it thinks fit: … (b) sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a): … (iii) if at least one of the offences is a Commonwealth child sex offence and the court is satisfied that there are exceptional circumstances - immediately. …".
Thus, the sentence imposed in this case is a sentence of imprisonment, as the terms of par (b) of s 20(1) make clear, but release was directed to take place "immediately", on the conditions stipulated. As a result, the applicant has spent no time in prison, whether before or after the imposition of sentence.
In relation to the recognizance release order, the sentencing judge identified the "exceptional circumstances" which made immediate release appropriate when her Honour found that the applicant's case was "well outside of a typical one" because of: his "longstanding mental health conditions and social challenges, complicated by cognitive impairment"; his mental age; the fact that the offending was "more a result of his complexities and limitations, as opposed to any paedophilic interests or intention to engage in more insidious behaviour"; and the fact that "requiring him to serve time in full time custody would not only expose his vulnerabilities but would be counter-productive to his continuing rehabilitation". Moreover, in this context, her Honour accepted the reduced need for deterrence and denunciation, including when she found: "[t]he combined effect of his complex presentation significantly reduces the need for any sentence to reflect the strong message that would normally be required for offending of this type."
In light of these remarks, it should not be accepted, as the applicant submitted, that her Honour failed to reduce or moderate the sentence on account of the need for denunciation and general and specific deterrence and thus fell into error.
Furthermore, to the extent that the applicant's submission in support of ground 1 was that the sentencing judge erred by giving insufficient weight to the applicant's subjective case, that submission should also be rejected. His subjective case was clearly considered and found by the sentencing judge, in effect, to have had a significantly mitigating effect on the sentence imposed. The extent of that mitigation was a matter for her Honour to determine in the exercise of her sentencing discretion. It is well established that questions of weight in the exercise of the sentencing discretion are matters for the sentencing judge: R v Baker [2000] NSWCCA 85 at [11]; Majid v R [2010] NSWCCA 121 at [40] (Johnson J, Simpson and McCallum JJ agreeing). The discretion to impose a sentence that seems to the sentencing judge to be just and appropriate is wide: He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 (He v Sun) at [42] (Bell P as the Chief Justice then was, Gleeson JA agreeing) citing Windle v R [2011] NSWCCA 277 at [61].
The sentencing judge's consideration of whether a sentence other than imprisonment was "appropriate in all the circumstances of the case" is part of the instinctive synthesis whereby (as McHugh J explained in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]) the judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgment as to what is the appropriate sentence given all the factors of the case and only at the end of the process does the judge determine the sentence. The determination of whether the sentencing judge is satisfied of the appropriateness of a sentence of imprisonment after considering all other available sentences is not a binary question which admits of only one correct answer. Rather it is part of the discretionary process of determining the appropriate sentence having regard to all the relevant factors and principles.
As to the applicant's submission to the effect that her Honour impermissibly proceeded on the basis that a non-imprisonment alternative could never be appropriate for this type of offending, this is inconsistent with the remarks on sentence. Robinson DCJ expressly referred to the submissions on the applicant's behalf that: the offending could be adequately dealt with by way of a recognizance release order pursuant to s 20(1)(a) of the Crimes Act, which provides that such an order can be made "without passing sentence on the [person]", or a community correction order, pursuant to s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW); and that any sentence imposed should enable the applicant to continue with his community-based support and ongoing treatment and rehabilitation. On a fair reading of the remarks on sentence, these options were not rejected by her Honour because they could never be appropriate or were not available at law. It is worthwhile repeating here part of the sentencing judge's reasoning in this regard, where it was said: ""I have taken all of those submissions into account, together with all of the material earlier identified. However, I am satisfied in this instance that no sentence other than one of imprisonment is the appropriate penalty. I am not satisfied that a sentence other than that would appropriately reflect the nature of the conduct generally and the need to reflect, albeit to a reduced extent, the harm that flows to victims of such behaviour and the need to generally denounce such conduct and to deter others from similar offending."
In short, her Honour's reasons for being satisfied that no sentence other than imprisonment were based on "this instance", that is, the applicant's particular offending and circumstances, and did not proceed on the basis that a non-imprisonment alternative could never be appropriate for child pornography offending.
In addition, Robinson DCJ's summary of a number of the principles that apply when sentencing for child pornography offences, set out earlier in her remarks on sentence, when read in the context of the remarks as a whole, did not indicate that her Honour adopted the approach that a sentence other than imprisonment could never be appropriate in such cases. It can be noted that there was no ground of appeal which sought to challenge the principles referred to in that part of the remarks on sentence, whether based on what was said by this Court in Totaan v R or otherwise.
Finally, I do not accept the applicant's argument to the effect that: 1. If it is open to the sentencing judge to impose a sentence other than imprisonment then it is not open to impose a sentence of imprisonment and, thus, the court could not, for the purposes of s 17A(1) of the Crimes Act, be satisfied that no sentence other than imprisonment was appropriate in all the circumstances of such a case. 2. It was open to impose a sentence other than imprisonment in the present case. 3. Therefore, her Honour erred in finding she was satisfied that no sentence other than imprisonment was appropriate in all the circumstances of the case.
Contrary to the applicant's major premise, s 17A(1) of the Crimes Act proceeds on the basis that a number of sentencing options, some involving imprisonment and some not, may be available or open to the sentencing judge. The fact that one sentencing option is available or open does not have the consequence that other options are not available or open. The question posed for the sentencing judges by s 17A(1) is whether they are satisfied that, out of all the sentencing options which are available or open, only a sentence of imprisonment is "appropriate" having regard to "all the circumstances of the case", including those referred to in s 16A.
Section 17A(1) requires consideration of all other available sentences and all the circumstances of the case rather than focusing exclusively on a comparison between imprisonment and one or more types of sentences not involving imprisonment: Atanackovic v The Queen (2015) 45 VR 179 [2015] VSCA 136; at [103] (Weinberg, Kyrou and Kaye JJA). The learned sentencing judge in the present case did what was required, and stated and recorded her reasons for her decision in this regard as required by s 17A(2) of the Crimes Act.
There was no error in relation to her Honour's consideration of s 17A of the Crimes Act nor was there any other basis to conclude that Robinson DCJ's exercise of the sentencing discretion in the present case miscarried as contended by the applicant under ground 1. I would therefore dismiss the applicant's appeal based on that ground.

Ground 2 - Submissions

Ground 2 involved the contention that the sentence imposed was manifestly excessive. The applicant accepted that there was a significant crossover between grounds 1 and 2.
The applicant submitted that the imposition of a prison term, even if suspended and ordered to be served in the community, was unreasonable and plainly unjust in light of the objective seriousness of the offending falling well below mid-range, the fact no actual harm was caused to any other person, and the applicant's compelling subjective circumstances.
In oral submissions, counsel for the applicant clarified that despite the objective reality being that the applicant will not spend a day in prison, he will have to deal with the adverse consequences of being "labelled as somebody who has received a term of imprisonment…" [4] . Furthermore, counsel for the applicant reiterated that when viewed holistically, this is simply not a case in which a sentence of imprisonment was warranted.
The Crown submitted that the sentence imposed did not fall outside the range of sentencing options reasonably available to the sentencing judge, particularly considering the maximum penalty for the offence, the other offence on the schedule to be taken into account, the applicant's subjective circumstances, and the general principles and comparable sentences relating to child abuse material offences relied upon at sentence.

Ground 2 - consideration

There was no dispute as to the principles concerning when a sentence will be found to be manifestly excessive. They have been recently collected in He v Sun at [41]-[42] and do not need to be repeated in full. It is sufficient to note that intervention by this Court is only warranted based on a ground of manifest excess where 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. To succeed on such a ground, the applicant must establish that the sentence was unreasonable or plainly unjust.
The applicant has been unsuccessful in establishing the specific error contended under ground 1 and no other patent error has been established to support indirectly ground 2.
The nature and extent of the offending has been set out in some detail above and so have relevant aspects of the applicant's subjective case.
In my view, a sentence of nine months' imprisonment for this child pornography offence (taking into account another, albeit closely related, child pornography offence) combined with a recognizance release order directing the applicant's immediate release was not outside the range of available sentences. As a result of this sentence, the applicant did not spend any time in custody on account of the offending conduct and his complex needs were able to be suitably addressed in the community. The sentence imposed clearly reflected that deterrence and denunciation had a lesser role to play in this particular case due to the reduced moral culpability of the applicant, as the sentencing judge expressly recognised. The extent of the reduction was a matter for the sentencing judge and the degree of reduction in the present case was substantial when the relatively short length of the sentence and the fact that the recognizance release order resulted in the immediate release of the applicant are considered. The fact that it will be recorded that the applicant was sentenced to a term of imprisonment does not mean that the sentence, including both the term of imprisonment and the recognizance release order, was outside the range of available sentences. When regard is had to the specific nature of the conversations which constitute the offending in the present case, even taking into account the absence of any actual child victim, the short duration and the apparent voluntary cessation of such activity, the lack of threats, intimidation or bribes and the applicant's powerful subjective case, the sentence itself does not bespeak some latent error or misapplication of principle.
In short, the sentence was not plainly unjust or unreasonable, having regard to all the circumstances of the case and the applicable principles.
Accordingly, I do not accept that the sentence was manifestly excessive and I would dismiss ground 2.

Leave to appeal

Since the first ground of appeal was arguable and required proper consideration, I would grant leave to appeal. Nonetheless, the appeal should be dismissed.

Orders

For these reasons, I propose that the orders of the Court should be: 1. Leave to appeal is granted. 2. The appeal is dismissed.

Endnotes

Tcpt 7 September 2022 p 10(16-20).
Tcpt, 7 September 2022, p 3(26-27), p 9(5-9)
Tcpt, 7 September 2022, p 3(38-43)
Tcpt, 7 September 2022, p 5(19-20). 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: 03 March 2023

(2021) 104 NSWLR 518

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