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Supreme Court of Victoria - Court of Appeal |
Last Updated: 20 April 2016
COURT OF APPEAL
S APCR 2015 0179
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and
DIRECTOR OF PUBLIC PROSECUTIONS
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Appellant
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v
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Respondent
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JUDGES:
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WHERE HELD:
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DATE OF HEARING:
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DATE OF JUDGMENT:
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MEDIUM NEUTRAL CITATION:
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CRIMINAL LAW – Child Pornography – Director’s Appeal – 27 child pornography related charges under Criminal Code Act 1995 (Cth) and Crimes Act 1958 (Vic) – 11 State offences of causing minors to be concerned in the production of child pornography – Commonwealth offences of causing material to be transmitted from victims to himself, transmitting child pornography material, soliciting child pornography material, using a carriage service to engage in sexual activity with a person under 16, using a carriage service to menace, harass or cause offence – 71 victims – Child pornography procured from 43 victims, solicited from 10 victims, and 18 victims harassed in an effort to obtain child pornography.
CRIMINAL LAW – Child pornography – Use of false persona via internet to procure naked and sexually explicit photographs and videos from children aged 5 to 16 – Use of internet to exploit vulnerable children recognised by legislature as increasing objective gravity of offending – R v Porte [2015] NSWCCA 174; Adamson v The Queen (2015) 301 FLR 385, cited - – Nature of the material relevant to determining objective gravity in child pornography matters – R v De Leeuw [2015] NSWCCA 183, Heathcote (a pseudonym) v The Queen [2014] VSCA 37, cited – Preponderance of material fell within category 1 and 2 on ANVIL scale – No diminution in objective gravity of offending – General deterrence paramount consideration in child pornography offending – Fitzgerald v The Queen [2015] NSWCCA 266, Director of Public Prosecutions (Cth) v D’Alessandro [2010] VSCA 60; (2010) 26 VR 477, cited – Offender continued to offend while on bail – Inadequate weight given to specific deterrence – No reliance on principles espoused in R v Verdins [2007] VSCA 102; (2007) 16 VR 269 – DPP v O’Neill [2015] VSCA 325, discussed – Sentence manifestly inadequate – Appeal granted – Respondent resentenced.
SENTENCING – Cumulation of sentences where both State and Commonwealth charges – Orders for cumulation must reflect the totality of respondent’s offending on both State and Commonwealth charges – Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610; DPP v Grabovac [1994] VR 664, discussed – Failure to assign appropriate cumulation to each charge resulted in manifestly inadequate total effective sentence.
SENTENCING – Rolled up counts – Offending on rolled up counts involving numerous victims and additional victims to those covered by individual counts – Rolled up counts objectively more serious – Rolled up counts different order of criminality requiring discrete attention and higher sentence than charges relating to single victims – Sentences manifestly inadequate.
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APPEARANCES:
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Counsel
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Solicitors
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For the Appellant
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Mr R J Bromwich SC
Ms K Breckweg |
Mr M Pedley, Solicitor for Public Prosecutions (Cth)
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For the Respondent
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Mr O P Holdenson QC
Ms S J Keating |
Stary Norton Halphen
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BEACH JA:
Overview
1 The respondent having pleaded guilty in the County Court to 27 child pornography related Commonwealth and State offences spanning a period of 2 years and 8 months, was sentenced on 20 August 2015 to 7 years’ imprisonment with a non-parole period of 4 years and 8 months. The State offences, which were the subject of 11 charges, were that of causing minors to be concerned in the production of child pornography under the Victorian Crimes Act 1958 (‘Crimes Act’). The Commonwealth offences were causing the material to be transmitted from the victims to himself, transmitting child pornography material, soliciting child pornography material, using a carriage service to engage in sexual activity with a person under 16, and using a carriage service to menace, harass or cause offence under the Criminal Code Act 1995 (Cth) (‘Criminal Code’).
2 There were in total 71 individual child victims. He procured child pornography from 43 of those victims, solicited child pornography from a further 10 victims and harassed 18 child victims in an effort to obtain child pornography from them. The Commonwealth and Victorian Directors of Public Prosecution (the ‘Directors’) have jointly appealed against the adequacy of the total effective sentence and the sentence on a number of rolled up charges.
3 For the reasons that follow the Directors have demonstrated that some individual sentences and the total effective sentence fall manifestly below the sentencing range reasonably available.[1] We would allow the appeal and resentence the respondent to 10 years and 5 months’ imprisonment with a non-parole period of 7 years and 3 months’ imprisonment.
Overview
4 The Directors submit that these sentences are manifestly inadequate.
5 The respondent was sentenced as follows:[2]
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Offence
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Maximum
Penalty |
Sentence
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Cumulation
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1
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Cause a minor to be concerned in production of child pornography –
s 69(1) Crimes Act 1958
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10 years
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3 years
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2 months
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2
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Cause CP material to be transmitted to himself –
s 474.19(1)(a)(ii) Criminal Code
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15 years
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2 ½ years
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Nil
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3
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Use carriage service to engage in sexual activity with a person under 16
– s 474.25A(1) Criminal Code
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15 years
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3 ½ years
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Nil
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4
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Cause a minor to be concerned in production of CP – s 69(1)
Crimes Act 1958
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10 years
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3 years
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2 months
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5
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Cause CP material to be transmitted to himself –
s 474.19(1)(a)(ii) Criminal Code
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15 years
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2 ½ years
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Nil
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6
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Transmit CP material – s 474.19(1)(a)(iii) Criminal Code
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15 years
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5 years
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Base
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7
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Cause a minor to be concerned in production of CP – s 69(1)
Crimes Act 1958 (Vic)
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10 years
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3 years
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2 months
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8
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Cause CP material to be transmitted to himself –
s 474.19(1)(a)(ii) Criminal Code
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15 years
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2 ½ years
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Nil
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9
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Cause a minor to be concerned in production of CP – s 69(1)
Crimes Act 1958
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10 years
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3 years
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2 months
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10
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Cause CP material to be transmitted to himself –
s 474.19(1)(a)(ii) Criminal Code
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15 years
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2 ½ years
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Nil
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11
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Cause a minor to be concerned in production of CP – s 69(1)
Crimes Act 1958
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10 years
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3 years
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2 months
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12
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Cause CP material to be transmitted to himself –
s 474.19(1)(a)(ii) Criminal Code
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15 years
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2 ½ years
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Nil
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13
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Cause a minor to be concerned in production of CP – s 69(1)
Crimes Act 1958
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10 years
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3 years
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2 months
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14
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Cause a minor to be concerned in production of CP – s 69(1)
Crimes Act 1958
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10 years
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2 years
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2 months
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15
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Cause CP material to be transmitted to himself –
s 474.19(1)(a)(ii) Criminal Code
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15 years
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2 ½ years
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Nil
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16
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Cause a minor to be concerned in production of CP – s 69(1)
Crimes Act 1958
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10 years
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3 years
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2 months
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17
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Cause CP material to be transmitted to himself –
s 474.19(1)(a)(ii) Criminal Code
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15 years
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2 ½ years
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Nil
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18
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Cause a minor to be concerned in production of CP – s 69(1)
Crimes Act 1958
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10 years
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3 years
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2 months
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19
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Cause CP material to be transmitted to himself –
s 474.19(1)(a)(ii) Criminal Code
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15 years
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2 ½ years
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Nil
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20
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Cause a minor to be concerned in production of CP – s 69(1)
Crimes Act 1958
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10 years
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3 years
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2 months
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21
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Cause a minor to be concerned in production of CP – s 69(1)
Crimes Act 1958
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10 years
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3 years
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2 months
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22
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Cause CP material to be transmitted to himself –
s 474.19(1)(a)(ii) Criminal Code
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15 years
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2 ½ years
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Nil
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23
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Transmit CP material – s 474.19(1)(a)(iii) Criminal Code
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15 years
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5 years
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2 months
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24
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Solicit CP material – s 474.19(1)(a)(iv) Criminal Code
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15 years
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2 years
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Nil
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25
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Use carriage service to menace, harass or cause offence –
s 474.17(1) Criminal Code
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3 years
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1 year
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Nil
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26
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Cause CP material to be transmitted to himself –
s 474.19(1)(a)(ii) Criminal Code
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15 years
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2 ½ years
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Nil
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27
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Transmit CP material – s 474.19(1)(a)(iii) Criminal Code
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15 years
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2 ½ years
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Nil
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Total Effective Sentence:
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7 years imprisonment
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Non-Parole Period:
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4 years and 8 months
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Pre-sentence detention declared:
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632 days
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6AAA Statement:
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9 years and 4 months imprisonment with a non-parole period of 6 years and
3 months imprisonment.
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Other:
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The Total Effective Sentence imposed on the Commonwealth charges was 5
years and 2 months, with a Commonwealth non-parole period of
3 years.
The Total Effective Sentence imposed on the State charges was 4 years and 8 months, with a State non-parole period of 28 months to commence 28 months after the date of sentencing. The Respondent was required to comply with the reporting obligations of the Sex Offenders Registration Act 2004 (Vic) for life. |
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6 The charges on the indictment involved either one, or two victims, save for charges 6 and 23–27 which were rolled up charges, which covered multiple victims and instances of offending. Originally, the Directors sought to appeal on the ground that both the overall total effective sentence and all the individual sentences were manifestly inadequate. During the course of oral submissions, the Commonwealth Director who appeared on behalf of both appellants, stated that he did not press the complaint that the individual sentences, save for rolled up charges 24–27, were manifestly inadequate, having regard to the possibility that the judge may have moderated the sentences in order to comply with the principle of totality.
7 The Directors submit that the individual sentences on the rolled up counts, and total effective sentence are manifestly inadequate given the breadth and seriousness of the offending. They submit that the legislature has recognised internet offending of this nature to be an increasing problem.
8 The particulars of manifest inadequacy, as set out in the grounds of appeal are that the sentencing judge:
(i) failed to give sufficient weight to the nature and circumstances of the offending, including the maximum penalties prescribed for the offences;
(ii) failed to give sufficient weight to the principles of general deterrence, punishment and denunciation;
(iii) failed to give sufficient weight to the principle of specific deterrence, in particular given the respondent’s poor prospects of rehabilitation and his continued offending after arrest;
(iv) failed to give due regard to totality in sentencing in accordance with Pearce v The Queen;[3]
(v) failed to accumulate any of the sentences imposed on the Commonwealth charges and provided inadequate accumulation of the sentences imposed on the State charges reflective of separate offending, and in the case of charges 4, 5 and 23 reflective of the fact that those offences continued to be committed while the respondent had been charged and was on bail and in breach of specific bail conditions restricting internet use.[4]
Circumstances of the offending
9 The circumstances of the offending were set out in the summary of prosecution opening, exhibited on the plea. The detailed opening need not be fully recited. It is necessary however to set out sufficient of particulars from the opening, to convey the nature of the offending.
10 The respondent was charged with 27 offences relating to his engagement in communications using a false persona with prospective victims on the internet in order to obtain naked and sexually explicit photographs and videos from them. The offending occurred between February 2011 and October 2013, while the respondent was aged between 29 and 31 years of age. The victims were all girls aged between five and 16 years of age at the time of the offences. There were 71 victims in total.
11 The respondent’s modus operandi was described in the prosecution opening as follows:
The offender used fictitious social media accounts posing as a teenage girl (including using the names of other victims or variations thereof) to make initial contact with victims. This was done via Kik, Tagged and Facebook, ...
The offender, purporting to be a teenage girl, would then ask the victim if they ‘wanted to have some fun’, and would send a picture of ‘herself’ and ask the recipient to copy the picture. The photos sent by the offender depicted females including other victims, either in underwear or partially naked. Once the target victim reciprocated and provided a first image, then the offender used that as leverage to demand more images and then videos.Demands and threats were persistent and they escalated, with the offender threatening to publish any photos or videos the victims had provided on the internet (eg. Google or Facebook), or give them to the victim’s family, friends or school. On occasions the offender threatened to publish their home address with the material. In some instances the offender threatened that he would tell police that they were sending child pornography to a minor (since he was pretending to be a young teenage girl).
The offender would stipulate exactly how many photos or videos he required them to produce, on each occasion stating that it was a ‘deal’ which they needed to complete in order for the demands to stop and to prevent their pictures/videos being distributed. However once the victim complied with that ‘deal’, the offender would invariably make further demands, having obtained further explicit material which gave further leverage to his threats.
The offender sent photos and videos of other victims (in particular [Victim 2]) to the victims for them to copy. By using these photos and videos, the offender convinced his victims that they were communicating with another teenage girl.
The offender told the victims exactly what to do in their photos and videos, demanding various naked poses, provocative dress, and masturbation including the use of objects. He would also often demand a certain demeanour, and demand that they take the photos again if they were not good quality or if the victim looked unhappy.
On a number of occasions the offender asked the victim if they had a younger sister or cousin, and then demanded that the victim provide explicit photographs or videos with that child. On two occasions these demands resulted in the involvement of younger sisters of the initial victim in the production and transmission of child pornography material. The younger sisters involved were aged 5 and 10 respectively at the time. (Charges 14, 15, 21 & 22).
In some instances the offender used a number of different identities (both female and male) to communicate with the same victim, leading the victim to believe she was communicating with a group of people who were friends. The main personas used were ‘Jasmine’, ‘Chantelle’, ‘Christine’, ‘Michael’ and ‘Danny’. If a victim blocked one, the offender would use another identity. On occasions he used one persona to encourage the victim to send more photos and videos to another persona.
The offender asked some victims to hold up ‘fan signs’ in a photo depicting them naked or partially naked. Sometimes they were told to write something about ‘Danny’ or ‘Lenzskii’, and sometimes they were told to write another girl’s name. Those pictures with other girls’ names were on occasions used by the offender to make other victims believe they were communicating with another teenage girl. On one occasion a victim was made to send a picture with a sign stating ‘Fuck me I’m 12 years old.’
In some instances the offender demanded that the victim give him the password to their social media and email accounts, which he then used to gather personal information to use against them and monitor them.
12 Once the respondent had received the child pornography material from the victims, he would often forward the material to his email account, for the purpose of ‘assembling a collection’, with each email including a subject line that had both the victim’s name and either a comment or personal details about the victim.[5] The respondent’s ‘collection’ assembled in this way totalled 1480 photographs and 41 videos.
13 The charges on the indictment could be classified as follows:
(i) ‘Procurement’ offences under section s 69(1) Crimes Act.
These state offences broadly encapsulate offending which involved the respondent causing a minor to be concerned in the production of child pornography. The respondent procured 11 of the 71 victims to produce pornographic images and videos of themselves and caused a further 32 victims to transmit pornographic materials of themselves to him. Cumulatively, this aspect of his offending involved 43 victims. These Crimes Act offences were charges 1, 4, 7, 9, 11, 13, 14, 16, 18, 20 and 21. A total of 858 images and 47 videos of a pornographic nature were obtained by the respondent in relation to these charges.
(ii) ‘Transmission’ offences under Chapter 10, Part 10.6, subdivision D Criminal Code.
The transmission offences can be further categorised into offences where he caused the child pornography material to be transmitted to himself, and offences where he himself transmitted the material. There were ten charges, 2, 5, 8, 10, 12, 15, 17, 19, 22 and 26 involving the respondent causing transmission to himself of the pornographic material obtained under those state offences by the use of a carriage service, being a violation of s 474.19(1)(a)(ii) of the Criminal Code. The respondent also transmitted pornographic material to other targets using a carriage service, being an offence against s 474.19(1)(a)(iii) of the Criminal Code. This conduct comprises the subject of charges 6, 23 and 27. Charges 6 and 23 involved the respondent transmitting child pornography photographs and videos of his victims to other targets as examples for them to copy. In total this material was sent by email, Facebook and other social media to at least 175 child targets. Charge 27 involved the respondent forwarding child pornography material he had received from victims to a second email address so as to assemble a collection.
(iii) ‘Sexual activity with persons under 16’ offences under Chapter 10, Part 10.6, subdivision F Criminal Code.
Charge three, which related to the first victim, involved the direct offence of using a carriage service for sexual activity with a person under 16 (s 474.25A(1)). It should be also noted that under this subdivision in the Criminal Code, that grooming, procuring and transmitting indecent communications are also covered – however the respondent was not charged under those provisions.
(iv) ‘Soliciting’ offences, under s474.19(a)(iv) Criminal Code.
This involved rolled up charge 24 relating to 10 victims. The respondent solicited pornographic materials using a carriage service from 10 of the 71 total victims, contrary to s 474.19(1)(a)(iv) of the Criminal Code. The respondent made requests to 10 Facebook users (all aged between 11 and 15 years old), asking the recipients to send naked/partially naked photographs of themselves where no actual child pornography material was sent by the Facebook users.
(v) Using a carriage service to menace, harass or cause offence under s 474.17(1) Criminal Code.
Rolled up charge 25 related to menacing, harassing or offensive messages sent by the respondent to 34 victims on Facebook, email and Skype.
14 The offender was arrested on 20 August 2013 and was released on bail. However, he persisted with the offending conduct while he was on bail. On 4 September 2013 the offender created further fictitious email accounts and continued to contact one victim until 26 October 2013. During this offending he demanded the victim provide images and videos to him and threatened to report her to the police if she refused. This conduct constituted part of the offending the subject of charges 4, 5 and 23.
15 His Honour found that the respondent had engaged in ‘serious criminal behaviour’ that was ‘calculated, predatory and manipulative’[6] and that the offending was ‘objectively serious.’[7] As the respondent procured the production of this material himself, his Honour regarded the procurement charges as more serious than transmission.[8]
16 The sentencing judge considered the modus operandi of the respondent as ‘particularly insidious’.[9] His Honour, after viewing a sample of the respondent’s pornographic collection, found the offending disconcerting and worrying, saying:
In viewing this material, which is certainly not one of the most enjoyable experiences of being a Judge in this Court, I must say it was somewhat upsetting to see young girls so prevailed upon in their own home environment. To see young, innocent girls of that age, no doubt involved in their own journey of sexual discovery and maturity, abused in the privacy of their own bedrooms or showers was somewhat disconcerting.[10]
17 His Honour went on to say that the sample he viewed ‘smacked of a gross personal invasion of these young children’s homes and privacy, and gross corruption of these young persons.’[11]
18 In his sentencing remarks, his Honour referred to the ‘categorisation’ of the child pornography materials as being ‘obviously important in regard to sentencing’.[12] The images and videos were classified by police according to the Australian National Victim Image Library (‘ANVIL’) /Child Exploitation Tracking System (‘CETS’) scale, which categorised the respondent’s material at the following levels:
Level 1 Erotic posing with no sexual activity including nudity, sexually suggestive posing, explicit emphasis on genital areas; andLevel 2 Sexual activity between children or solo masturbation by a child (non-penetrative)
19 The majority of the material was classified as Level 1. His honour said of that category of material:
It is true, and has to be accepted, that there is no aggravation of these offences by being category 1 and 2, the fact that they are not within higher categories does not in any way create any mitigation, and I accept that totally.[13]
20 His Honour also added as an appendix to the sentencing remarks, a substantial portion of the prosecution opening.[14] His Honour proposed, given the substantive nature of the evidence, that the appendix was a means of being able to ‘make sense of the sentence and appreciate the intensity of the offending.’[15]
Legislative framework – child pornography offences
21 Some examination of the legislative framework of the Commonwealth and Victorian laws relating to these offences is necessary.
22 A suite of child pornography offences are captured under Chapter 10, Part 10.6 of the Criminal Code. The definition of ‘child pornography’ in s 473.1, provides:
child pornography material means:
(a) material that depicts a person, or a representation of a person, who is, or appears to be, under 18 years of age and who:(i) is engaged in, or appears to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or
(ii) is in the presence of a person who is engaged in, or appears to be engaged in, a sexual pose or sexual activity;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
(b) material the dominant characteristic of which is the depiction, for a sexual purpose, of:
(i) a sexual organ or the anal region of a person who is, or appears to be, under 18 years of age; or
(ii) a representation of such a sexual organ or anal region; or
(iii) the breasts, or a representation of the breasts, of a female person who is, or appears to be, under 18 years of age;
in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
(c) material that describes a person who is, or is implied to be, under 18 years of age and who:
(i) is engaged in, or is implied to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or
(ii) is in the presence of a person who is engaged in, or is implied to be engaged in, a sexual pose or sexual activity;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or
(d) material that describes:
(i) a sexual organ or the anal region of a person who is, or is implied to be, under 18 years of age; or
(ii) the breasts of a female person who is, or is implied to be, under 18 years of age;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive.
23 The respondent was charged with transmission related offences under sections 474.19(1)(a)(ii) and (iii), and with use of carriage service to engage in sexual activity with a person under 16 offences under s 474.25A(1). Relevantly, those sections provide:
474.19 Using a carriage service for child pornography material(1) A person is guilty of an offence if:
(a) the person:
(i) accesses material; or
(ii) causes material to be transmitted to himself or herself; or
(iii) transmits, makes available, publishes, distributes, advertises or promotes material; or
(iv) solicits material; and
(aa) the person does so using a carriage service; and
(b) the material is child pornography material.
Penalty: Imprisonment for 15 years.
(2) To avoid doubt, the following are the fault elements for the physical elements of an offence against subsection (1):
(a) intention is the fault element for the conduct referred to in paragraph (1)(a);
(b) recklessness is the fault element for the circumstances referred to in paragraph (1)(b).
Note: For the meaning of intention and recklessness see sections 5.2 and 5.4.
(2A) Absolute liability applies to paragraph (1)(aa).
Note: For absolute liability, see section 6.2.
(3) As well as the general defences provided for in Part 2.3, defences are provided for under section 474.21 in relation to this section.
474.25A Using a carriage service for sexual activity with person under 16 years of age
Engaging in sexual activity with child using a carriage service
(1) A person commits an offence if:
(a) the person engages in sexual activity with another person (the child) using a carriage service; and
(b) the child is under 16 years of age; and
(c) the person is at least 18 years of age.
Penalty: Imprisonment for 15 years.
Causing child to engage in sexual activity with another person
(2) A person (the defendant) commits an offence if:
(a) the defendant engages in conduct in relation to another person (the child); and
(b) that conduct causes the child to engage in sexual activity with another person (the participant) using a carriage service; and
(c) the child is under 16 years of age when the sexual activity is engaged in; and
(d) the participant is at least 18 years of age when the sexual activity is engaged in.
Penalty: Imprisonment for 15 years.
(3) The fault element for paragraph (2)(b) is intention.
Defence—child present but defendant does not intend to derive gratification
(4) It is a defence to a prosecution for an offence against subsection (1) or (2) if:
(a) the conduct constituting the offence consists only of the child being in the presence of a person while sexual activity is engaged in; and
(b) the defendant proves that he or she did not intend to derive gratification from the presence of the child during that activity.
Note 1: A defendant bears a legal burden in relation to the matter in this subsection, see section 13.4.
Note 2: For other defences relating to this offence, see section 474.29.
24 The respondent was also charged under s 69(1) Crimes Act, with causing a minor to be concerned in the production of child pornography. Section 69(1) provides:
Procurement etc. of minor for child pornography(1) A person who—
(a) invites a minor to be in any way concerned in the making or production of child pornography; or
(b) procures a minor for the purpose of making or producing child pornography; or
(c) causes a minor to be in any way concerned in the making or production of child pornography; or
(d) offers a minor to be in any way concerned in the making or production of child pornography—
is guilty of an indictable offence punishable on conviction by level 5 imprisonment (10 years maximum).
25 The relationship between the offending under the Crimes Act and Criminal Code, means that for any one victim, the respondent was charged with a number of offences covering the same period of offending and the same victim. The Crimes Act offence of causing a minor to be concerned in the production of child pornography, can be seen as the ‘antecedent’ offence to the transmission offences. In the case of the charges involving the 11 individually named victims,[16] there was always a charge under s 69(1) Crimes Act which involved the production of child pornography at the request of the applicant, with a transmission offence under s 479.19(1)(a)(ii) Criminal Code accompanying. A table was tendered on the appeal, annexed to these reasons (the ‘Table’), which sets out the charges relating to each individual victim and the conduct the subject of the offending.
26 By way of illustration, the Table shows that in relation to victim 1, the respondent was charged under s 69(1) Crimes Act, s 474.19(1)(a)(ii) Criminal Code (cause child pornography material to be transmitted to himself) and s 474.25A(1) Criminal Code (use carriage service to engage in sexual activity with person under 16). The offending under the Crimes Act involved 60 child pornography photographs made by the victim at the demand of the offender, with threats. These threats and demands were made throughout 2,500 Skype chat messages, as well as Facebook chat. The Criminal Code transmission offence was therefore triggered when the 60 pornographic photographs were sent by the victim to the offender in response to the demands and threats. Separately, the respondent was also charged under s 474.25A(1) Criminal Code for a number of live webcam transmissions of Skype, which involved the victim touching herself and masturbating, at the request of the respondent. This example is representative of much of the offending involving individual victims.[17]
Historical development of federal child pornography offences
27 The Director, during the course of the appeal, submitted the historical development of internet-related child pornography offences, their objective seriousness and the increase in the maximum penalty, are particularly relevant to the argument of manifest inadequacy. He submitted that the legislative development in relation to the offences with which the applicant was charged, are viewed by the legislature as being at the higher end of seriousness.
28 The transmission offences under sub-division D of the code, with which the respondent was charged, were first introduced in 2005 with a maximum penalty of 10 years’ imprisonment. In 2010 the maximum penalties were increased by 50 per cent to 15 years’ imprisonment. The provisions were expanded to include the offence of soliciting child pornography material.[18]
29 Internet related child pornography offences are a rapidly developing area. Subdivision F was inserted in the Criminal Code in 2010 by the Crimes Legislation Amendment (Sexual Offences Against Children) Act (Cth) 2010. This new sub-division was intended to address the expanding potential for offending in this area. Prior to the inclusion of s 474.25A, the Criminal Code only encompassed grooming and procuring offences. No offence relating to the use of the internet for sexual activity with a child or for child pornography purposes existed. The introduction of s 474.25A, enhanced the ‘coverage of offences for using a carriage service for sexual activity with a child or for child pornography or child abuse material’,[19] and was clearly designed to capture offending involving live video technology, such as Skype chat. The Explanatory Memorandum to the Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010 explained the necessity for such amendments in these terms:
[t]o ensure that Internet-related child sexual exploitation is comprehensively covered in light of rapidly changing technologies and the anonymity that the Internet provides, Part 2 of Schedule 1 will make a range of amendments to ensure that the Commonwealth’s carriage service offence regime reflects contemporary offending.[20]
30 The Directors submit that the change in legislative attitude reflected the legislative concern as to the increasing level of activity taking place on the internet. The changed legislative landscape is plainly of considerable importance in assessing the objective seriousness of the offending. Recognition of that change also serves to distinguish some of the earlier sentences imposed in child pornography cases, as the sentencing regime at the time of many such decisions involved a significantly lower maximum penalty for the relevant offences.
31 The importance of the courts adjusting to the legislative change in recognition of the increased activity in this area was highlighted by the New South Wales Court of Criminal Appeal in R v Porte,[21] where, after summarising the changes in the legislative framework,[22] Johnson J said:
At the same time as maximum penalties for these offences have been increased, the courts have made clear that the ready availability of material of this type has warranted substantial penalties with general deterrence and denunciation being paramount considerations.[23]
32 In Adamson v The Queen,[24] this Court, citing Porte, noted the importance of imposing sentences which reflected the ease with which offenders may leverage the internet as a platform for offending:
In the very recent decision of the New South Wales Court of Criminal Appeal in R v Porte, it was noted that ‘[t]here are few areas where the age of the Internet has impacted upon the criminal law more severely than in the field of child pornography offences’. Offences which involve procuring child victims for child pornography and the production of child pornography via the medium of the internet require the imposition of sentences that reflect the ease with which this medium may be used to commit such grave offences and which give primacy to the need to deter and denounce such conduct.[25]
33 Accordingly any evaluation of the adequacy of sentences for offending in the use of the internet for the purposes of creating, obtaining or transmitting child pornography must be informed by the fact that this medium is a rapidly developing and easy means by which vulnerable children are exploited. The expanding breadth of offending and increased maximum penalties reflects the gravity with which the legislature views this form of offending in the area of child pornography.
Matters relevant to sentencing child pornography offenders.
34 In sentencing child pornography offenders in Australia, most matters relevant to such a task have been conveniently summarised by the New South Wales Court of Criminal Appeal in R v De Leeuw,[26] as follows:
[72] Appellate courts throughout Australia have consistently stated that the following propositions apply to sentencing for child pornography offences:(a) Unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted: R v Jongsma [2004] VSCA 218; 150 A Crim R 386 at 395 [14]; Hill v Western Australia [2009] WASCA 4 at [28]; R v Booth [2009] NSWCCA 89 at [48]; R v Sykes [2009] QCA 267 at [24]; DPP v Groube [2010] VSCA 150 at [24]; DPP (Cth) v D’Alessandro [2010] VSCA 60; 26 VR 477 at 483-4 [21]; Director of Public Prosecutions (Cth) v Guest [2014] VSCA 29 at [23]–[24]; DPP v Smith [2010] VSCA 215 at [23], [26]–[29].
(b) The objective seriousness of the offending is ordinarily determined by reference to the following factors:(i) the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;
(ii) the number of items or images possessed;
(iii) whether the material is for the purpose of sale or further distribution;
(iv) whether the offender will profit from the offence;
(v) in the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised;
(vi) the length of time for which the pornographic material was possessed: R v Jongsma at 400 [28]; R v Gent [2005] NSWCCA 370; 162 A Crim R 29 at 49 [99]; DPP (Cth) v D’Alessandro at 483–484 [21]; DPP (Cth) v Guest at [25].
(c) General deterrence is the primary sentencing consideration for offending involving child pornography: Assheton v R [2002] WASCA 209; 132 A Crim R 237 at 246–247 [35]–[36]; DPP (Cth) v D’Alessandro at 483–484 [21]; Edwards v R [2013] VSCA 188 at [22]; DPP (Cth) v Guest at [25]; Heathcote (A Pseudonym) v R [2014] VSCA 37 at [40]; DPP (Cth) v Zarb [2014] VSCA 347 at [34].
(d) Less or limited weight is given to an offender’s prior good character: R v Gent at 44 [65]; DPP (Cth) v D’Alessandro at 483–484 [21]; Mouscas v R [2008] NSWCCA 181 at [37].
(e) Offending involving child pornography occurs on an international level and is becoming increasingly prevalent with the advent of the Internet as a means of allowing people to access and obtain child pornography: R v Jones [1999] WASCA 24; 108 A Crim R 50 at 51 [2]; Assheton v R at 246–247 [35]–[36].
(f) Offending involving child pornography is difficult to detect given the anonymity provided by the Internet: Mouscas v Rat [31]; R v Booth at [29].
(g) The possession of child pornography material creates a market for the continued corruption and exploitation of children: R v Coffey [2003] VSCA 155; 6 VR 543 at 552 [30]; R v Cook; Ex arte Director of Public Prosecutions (Cth) [2004] QCA 469 at [21]; R v Jongsma at 395 [14]; Heathcote (A Pseudonym) v R at [40].
(h) 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: R v Jones at 52 [9]; DPP (Cth) v D’Alessandro at 484 [23].
(i) The fact that an offender does not pay to access a child pornography website or was not involved in the distribution or sale of child pornography does not mitigate the offending: R v Coffey at 552 [30].[27]
Manifest Inadequacy
Principles
35 The principles relating to the ground of manifest inadequacy are well established. In Director of Public Prosecutions v Karazisis,[28] Ashley, Redlich and Weinberg JJA said:
As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and the offender.[29]
36 Acknowledging the hurdle which must be reached, the Directors submit that it was not reasonably open to the sentencing judge to impose the overall sentence and the individual sentences on the rolled up counts, if proper weight had been given to the relevant circumstances of the offence and offender, and if any, or adequate, cumulation had been imposed between the charges.
37 It must be recognised as the respondent rightly submits, that his Honour’s reasons for sentence demonstrate that his Honour gave extensive and very careful consideration to the many relevant matters raised on the plea. His Honour spent in excess of an hour reciting the circumstances of each of the 27 charges at sentence noting their seriousness. The comprehensive reasons refer to all relevant sentencing considerations, including the maximum penalty, the impact of the offences on the victims and the need to give significant weight to general deterrence.
38 The Directors rely only on the residual ground under House v The King,[30] that some unidentifiable error must have been made as the sentences were manifestly inadequate.[31] In support of this ground the Directors allege a failure to give any or sufficient weight to the particular matters pleaded in [8]. The submissions advanced on the appeal and set out below were directed only to supporting those particulars though some could be misunderstood to be asserting specific error.
Failure to give sufficient weight to nature and circumstances of the offending
39 The Directors submit that when one considers the sheer range and extent of the offending, the sentences imposed failed to adequately reflect the seriousness and circumstances of the offending.
40 In particular, the Directors point to a number of features of the respondent’s conduct said to be of a higher degree of seriousness than that reflected by the sentences imposed by the judge. These include the number of charges, the scale of the production and transmission of pornographic material, the persistence of the offending over a lengthy period of time, the large number of victims, the dishonest and manipulative means by which the respondent operated, including his coerced involvement of younger relatives, the invasion of the privacy of the victims in their own homes, the age disparity between the respondent and his victims and the respondent’s continued offending in breach of his bail conditions.[32] With respect to the pornographic material itself, the Directors submit that the youth of the victims and the exposure of genitals, masturbation and presentation of children as ‘female body parts’, even though classified as category 1 and 2 material, serve to heighten the gravity of the offending.
41 Amongst the many matters relevant to sentence, as set out in De Leeuw, is the nature of the material.[33] Oral argument was thus directed to how the material had been categorised and the impact that categorisation had on the judge’s assessment of the gravity of offending.
42 The respondent submits that one of the features noted in the sentencing remarks as relevant to an assessment of the material’s gravity, included the fact that the material was confined to category 1 and 2. His Honour explicitly stated that the categorisation of the child pornography material was important. In his sentencing remarks, he said:
The issue of categorisation of this material is obviously important in regard to sentencing. The analysis of the material follows a decision made in England in R v Oliver [2003] 1 Cr App R 28 [463] to [469]. The Court of Appeal in England, at p.466, accepted the analysis from the English Sentencing Advisory panel of the United Kingdom, as to the grading of such offences, by way of a grading based upon what is known as the COPINE scale. The Court of Appeal adopted at paragraph 11, not precisely the COPINE scale but a five-level scale.The federal authorities in Australia use a slightly different scale, however insofar as the first two categories, of which we are concerned in this matter, there is really no difference.
The first of the scales — of which it has to be accepted the majority of the material in this matter concerned — while it is described by the federal authorities as child exploitative material involves no actual sexual activity, but involves display, usually of the breasts or genitalia of a child.
The second category of which we are involved, as settled by the federal authorities, and which is put to this Court is also described as child exploitative material, but level 2. This involves solo masturbation, sometimes the use of sex aids, sometimes the provision or the action of various low-key sex acts between children. It is not a category which involves penetrative action by a third party. Those crimes are further up the scale.
There was some discussion during the plea between Mr Sprague and myself about this categorisation. It is true, and has to be accepted, that there is no aggravation of these offences by being category 1 and 2, the fact that they are not within higher categories does not in any way create any mitigation, and I accept that totally.[34]
43 The Director pointed out that category 1 and 2 images derived where an adult poses as a child for the purposes of extorting images and videos from other children will not involve any presence of the adult with the child. Offending engaged in using that or similar modus operandi will not extend beyond category 1 or 2 offending. Those qualities of category 1 or 2 images do not reduce their objective gravity.
44 The sentencing judge regarded the classification of the material as ‘ obviously important to sentencing’,[35] and referred to the category 1 and 2 material as not containing material that was ‘up the scale’.[36] The Director contended that his Honour viewed it as ‘somehow less serious’ than for higher level child pornography. The Director submitted that to so view category 1 or 2, does not reflect accurately the sinister nature of this modus operandi. In Heathcote (a pseudonym) v The Queen,[37] this Court rejected such a notion, noting ‘the moral wickedness and depravity of images classified as level 1.’[38]
45 The calculated and deceptive way in which the respondent employed the medium to assume the identity of a teenager in order to manipulate other teenagers made this offending particularly insidious, particularly difficult to detect and particularly difficult to deter. The exploitative manner in which the respondent extorted the images from the victims was enhanced by the applicant’s use of multiple identities over a protracted period of time. He employed numerous identities to persuade, ‘cajole’ or threaten the victims into doing what he wanted. If he was unsuccessful under one guise, he would use another, employing different techniques but directed to the same end – in some cases using as many as four identities with the one victim. He would utilise pornography that he had obtained from some victims in order to encourage or disinhibit other victims to engage in the same behaviour. He transmitted pornography items obtained from multiple victims to over 175 child targets by email, Facebook and other social media requesting they copy the content of the material. His active transmission of child pornography not only increased the number of people viewing the material,[39] but perpetuated the abuse of the children by increasing the potential for them to be adversely affected for much of their lives.[40]
46 It would be to misconceive the inherent dimensions of this class of predatory behaviour to approach this level of offending as less serious. Although his Honour stated that the absence of material falling within higher levels was not mitigatory,[41] there were numerous references during the sentencing remarks to the fact that the material was level 1 or 2 and there is force in the submission that the inherent objective gravity of level 1 and 2 offending may have been under-weighted. The absence of material of the type found in the higher levels of offending, did not materially diminish the objective gravity of this offending. As the Court in De Leeuw observed, the fact that the images fell only within Category 1 and 2, was of ‘limited assistance to the respondent.’[42]
Failure to give sufficient weight to the principles of general deterrence, punishment, denunciation and specific deterrence
47 It is well established that general deterrence is of paramount importance in offending of this kind. In Fitzgerald v The Queen,[43] Hoeben CJ at CL said:
As his Honour recognised, general deterrence is of paramount importance when sentencing for these kinds of offences. This kind of offending primarily requires the imposition of sentences that will both deter others in the community from committing similar offences and which will punish and denounce the conduct of the offender. The ease and relative anonymity of the internet, the use by like-minded people of peer to peer file sharing technology to form networks exchanging such material and the difficulties of detection demonstrate the importance of general deterrence.[44]
48 Similarly, in Director of Public Prosecutions (Cth) v D’Alessandro,[45] Harper JA, with whom Redlich JA and Williams AJA agreed, said that the
prevalence and ready availability of pornographic material involving children, particularly on the internet, demands that general deterrence must be a paramount consideration.[46]
49 During the plea, counsel for the respondent relied upon his dysfunctional background and his psychological ‘retreat’ into the online world, as the explanatory foundation for the offending conduct. Counsel at the plea submitted that those factors ought to moderate the importance of denunciation and general deterrence. The respondent relied on observations of Mr Patrick Newton, Forensic Psychologist, who, after having assessed the respondent made the following observations:
My assessment of Mr Watson also suggested that his social skills are poor. He is an eccentric and socially awkward man who has been perennially confused about how to establish and/or maintain mature intimacy with adults. His experiences of harassment have left him with deep-seated fear of rejection and humiliation at the hands of others, and this has made him reluctant to initiate contact with another unless he can ensure that he is able to control the parameters of the interaction. As a result he has gravitated to the online world where communication is highly structured and where his limited social skills do not pose the degree of impediment that would be the case in more mainstream domains of interaction....
Mr Watson’s offending reflects these dysfunctional personality traits. Firstly, his inability to interact in the ‘real’ world led to an obsessive engagement with online chat. Even here, however, he was unable to manage the challenges of relating to women and so resorted to interactions with underage females whom he was able to control and who did not therefore threaten his fragile sense of self-worth. Furthermore, he adopted personae of various young girls to achieve his ends. Finally, he resorted to threats and other forms of manipulation as he lacked the skills (even with the foregoing in place) to accomplish his ends through non-coercive means.
The personality traits described above are unequivocally maladaptive. They are strongly developed aspects of Mr Watson’s personality, have been central to his orientation to others since childhood, and have remained essentially unchanged across adolescence and into adulthood. While I am reluctant to diagnose a personality disorder on the basis of a single interview, it is clear that Mr Watson’s personality adjustment is deeply problematic and incorporates traits of both Borderline and Antisocial Personality Disorders. Regardless of the diagnoses, it is evidence that Mr Watson suffers significant deficits in his interpersonal and social skills. There is a strong need for him to receive treatment to address these issues.
50 His honour in his sentencing remarks adverted to the respondent’s personal circumstances as follows:
However, the issue as to this offending, it was submitted, reflects essentially a fragile life, a fragility brought about from the instability in his personality, and demonstrated by way of sexual dysfunction. I have no doubt, given the extent of his sexual perversions or paraphilic obsessions as described by Mr Newton, that he has personality defects and suffers sexual dysfunction. Such is his make-up so to speak, and I accept such as the explanation for these offences.[47]
51 His Honour later said:
It was put to me that I should not overemphasise denunciation and general deterrence. I accept that. Such is always a challenge in cases like this. As I said, and I did not wish to overstress the circumstances of the offending, but because of its breadth and intensity, it was impossible to appropriately describe the material without going into some detail, as evident from the fact that such has taken me at least one hour.... [48]It was put that he has been very active in custody, taking the appropriate steps. An analogy by way of criminal responsibility and personality was put to be insofar as the cases that relate to persons who were brought up in this country’s indigenous society and DPP v Terrick [2009] VSCA 220, in particular paragraphs 46 and 47. I have no doubt that his upbringing was difficult. I have got no doubt that his upbringing in totality, explains why he has the personality difficulties that have led to this criminal behaviour. I see that no more than that. However, as in all sentencing, persons who have difficulties as to their being brought up and have personality issues, are entitled to have such differences taken into account on their behalf, albeit to a moderate degree, in circumstances when one is balancing those matters against the issues and the need in cases such as this, for sentences which reflect general deterrence and denunciation.[49]
52 In light of these findings, the respondent submits that his Honour carefully balanced the considerations particular to him, and that it was properly accepted by the sentencing judge that in a case of this breadth it was important that general deterrence and denunciation were not overemphasized.
53 The Directors, in reliance upon these sentencing remarks, submit that his Honour improperly moderated general deterrence as a consequence of the respondent’s difficult upbringing and his personal difficulties, which were said to have led to his offending. His Honour found the respondent’s upbringing and personal difficulties had led to the offending.
54 The Directors submit that there had been no reliance on the principles espoused in R v Verdins,[50] so as to justify a moderation of general deterrence, and that none of the factors personal to the respondent are so unusual or exceptional as to place the respondent in a different category to others with similar personal factors sentenced for similar offending. They submit that the sentencing judge gave insufficient weight to considerations of punishment, denunciation and general deterrence, and allowed ‘circumstances personal to the respondent to swamp the primacy of general deterrence.’ Although no complaint of specific error is made, the Directors argue that the judge’s remarks strongly suggest that general deterrence, was given inadequate prominence in the sentencing calculus. They further contend that undue weight was attached to the personal factors of the respondent identified by the sentencing judge.
55 The circumstances in which general deterrence, denunciation or moral culpability may be moderated are well settled. This is yet another occasion when submissions were advanced on the plea that reflect a misunderstanding of the circumstances when those principles may be enlivened.
Reduction in general deterrence and denunciation
56 As we have said, general deterrence is the ‘paramount sentencing consideration’ in child pornography-related offences,[51] given the prevalence and the ready availability of pornography involving children, particularly on the internet.[52] Because the respondent’s dysfunctional background and personality disorders did not result in impaired mental functioning rendering him an inappropriate vehicle to moderate general deterrence or denunciation, it was not suggested on the plea or on appeal that Verdins principle 3 was enlivened. Accordingly, there was no basis for moderation of general deterrence or denunciation.[53]
Reduction in moral culpability for dysfunctional background or personality disorders
57 The absence of impairment of mental function also meant that the respondent’s personality disorders or dysfunctional background did not enliven Verdins principle 1. His personality disorders could only moderate moral culpability to the limited degree discussed in Director of Public Prosecutions v O’Neill.[54] The judge did find that his dysfunctional background and disorders contributed to his offending. That permitted some reduction in his moral culpability. That said, the causes which his Honour assigned to the respondent’s offending may also have increased the importance of protecting the community from the respondent.[55]
58 There is considerable force in the Directors’ submissions that, drawing upon the sentencing remarks and an examination of the sentences actually imposed, his Honour may not have given sufficient weight to general deterrence, denunciation, moral culpability, and placed undue weight on the respondent’s dysfunctional background and personality disorders.
59 The Directors contend that specific deterrence did not receive sufficient weight in the sentencing balance.
60 His Honour found that the respondent’s prospects of rehabilitation had to ‘obviously ... be seen as guarded’,[56] in light of the evidence of Mr Patrick Newton, who assessed the respondent’s risk of re-offending as being at ‘Moderate-High Risk’. Despite being on bail, the respondent had continued to offend in the same manner as he did prior to his arrest.
61 The respondent submits that the fact that he had already spent 632 days in pre-sentence detention, and was victimised whilst incarcerated, appropriately counterbalanced the other matters considered by the judge, such as the respondent’s absence of genuine contrition and ‘guarded’ prospects of rehabilitation. His Honour did state, that ‘gaol will serve the purpose of punishment and denunciation primarily’,[57] but that was said in the context of noting the absence of treatment in gaol for the respondent’s sexual deviation.
62 Those factors relied upon by the respondent, while relevant to the sentencing calculus, did not reduce the need for specific deterrence as a sentencing consideration. It is not without significance that the sentencing judge did not explicitly say anything about considerations of specific deterrence. The fact that the respondent continued to offend post-arrest, showed a lack of insight into the harm he caused, lacked contrition, and was a moderate to high risk of reoffending meant that specific deterrence had to be given prominent weight in the sentencing calculus.
Principles of moderation, cumulation and totality
63 The Directors submit that the primary error by the sentencing judge, was that his Honour failed to adequately address moderation, cumulation and totality.
64 The Directors contend firstly that the individual sentences on the rolled-up charges of transmission of child pornographic material are manifestly inadequate. Secondly they say the omission of cumulation in respect of the ‘rolled up’ charges and those relating to the respondent’s offending whilst on bail also cannot be justified. Further, as the respondent fell to be sentenced as a serious sexual offender on the State offences, two months of cumulation on those charges was also said to be insufficient. Finally the Directors submit that the offending which occurred whilst the respondent was on bail and in breach of a bail condition constituted a circumstance of serious aggravation which called for a greater degree of cumulation.[58]
i) Cumulation
65 The Directors submit that manifest inadequacy inhered in the sentencing judge’s failure to impose specific cumulation on each of the Commonwealth offences save for two months on charge 23. This failure was pronounced given the existence of the several distinct forms of serious criminality against so many victims, each involving acts of a serious nature.
66 Although the sentencing judge stated that he had considered the principle of totality, the Directors submit that the sentences imposed failed to satisfy the principles of proportionality or totality.
67 The respondent submits that when one analyses the manner in which the total effective sentence was produced, the complaint against cumulation cannot stand. He relies upon the following sentencing remarks after his Honour had finalised the individual sentencing for the state offences. The sentencing judge, when turning to the federal charges and any orders for cumulation and said:
Then coming to what might be seen as the matters that we were talking about yesterday, the sentence on Charge 6 — that is the Federal charge, I think we should make that clear — is to commence today. The sentence on Federal Charge 23 is to commence two months after the commencement of the sentence on Charge 6. All other Federal charges are to commence today. That makes a total effective sentence of five years and two months’ imprisonment to commence today.Then coming to the State charges, I direct that two months of the sentence imposed on Charge 1 be served cumulatively upon the sentence imposed on Federal Charge 23 to commence 28 months after the commencement of the sentence on Federal Charge 6. I then direct that two months of the sentences imposed on Charges 1, 4 — no, it should not be one, I have already done that cumulative. We have already done 1, see? Yes. I direct that two months of the sentences imposed on Charges 4, 7, 9, 11, 13, 14, 16, 18, 20 and 21 be served cumulatively upon each other and upon the sentence imposed on Federal Charge 23. Maybe we do leave 1 there. Why have you — why do we need to have it twice then? See how you have got it twice?
ASSOCIATE: I think Charge 1 is fine because you have already declared it as done.
HIS HONOUR: No, in regard to State charges, I direct that two months of the sentence imposed on Charge 1 be served cumulatively upon the sentence imposed on 23 to commence 28 months after the commencement of the sentence on Federal Charge 6. Direct that two months of the sentence imposed on — serve cumulatively upon each other and upon the sentence imposed — shouldn't that be on Charge 1?
[COUNSEL FOR THE DEFENDANT]: Yes, if it was then
HIS HONOUR: Not Federal Charge 23.
[COUNSEL FOR THE DEFENDANT]: If it was then two months cumulative on 4, 7, et cetera, cumulative upon each other and upon the sentence imposed on Charge 1.
HIS HONOUR: Yes. Then we cross out the one, then we have the one. Then, without going through it, for each charge I've taken — like Charge 4 to commence 30 months, gone right through until we get to Charge 14 which is to commence 52 months, then come back to Charge 16 which is to commence 42 months and then go through 48 months.
[COUNSEL FOR THE DEFENDANT]: Yes, Your Honour.
The total effective sentence State is four years eight months' imprisonment to commence 28 months after the commencement of the sentence on Federal Charge 6.[59]
68 This discussion, it was submitted, demonstrates that the State sentence of 56 months, which began 28 months into the future, created a total effective sentence of seven years’ imprisonment. When looked at in this way, it was submitted, there was accumulation created with the State sentences, the accumulation being achieved through the ‘back door’ with all the Commonwealth sentences by fixing the State sentences to commence well into the future. The respondent’s counsel accordingly submits that while there was no arithmetical precision to his cumulation theory, the complaint by the Directors as to cumulation was really a structural argument.
69 These submission cannot be sustained for a number of reasons. First, the Directors’ complaint is not a structural one. The nature of structural objections was discussed in R v Albanus,[60] R v Ash[61] and more recently in Hoy v The Queen,[62] where Redlich JA stated:
When a sentencing judge is required to impose terms of imprisonment on a large number of counts, it has often been recognised that the sentencing judge may, within limits, adopt a ‘broad-brush’ approach to the fixing of sentence. For example, such an approach may be appropriate where there was an ongoing fraudulent course of conduct, a single fraudulent or common enterprise or where the criminal behaviour on counts was of a similar and repetitive nature.There is much authority to the effect that sentences imposed in such circumstances need only be roughly proportional to the gravity of the offences and the amount taken. This is not the first time that it has been necessary to state that structural objections to the sentences imposed in such cases is to be discouraged unless they reveal error in the instinctive synthesis. Where a judge is entitled to adopt a broad-brush approach, disconformity between sentences on particular counts will not usually provide a sufficient basis to impugn the instinctive synthesis.
In circumstances such as the present, the sentencing judge was not required to give the same level of attention to each of the sentencing considerations which bear upon the fixing of each individual sentence. Counts 31 and 37 were not committed in isolation. They were a necessary part of the applicant’s scheme used to prop up the facade of Chartwell’s prosperity. There was a detailed deception of the Commonwealth Bank involving the creation of false documents which entirely misrepresented the company’s financial circumstances. The monies obtained from the CBA enabled the applicant to pursue individual investor victims and avoid calls being made on earlier investments.
In my view, the approach of placing the offences into categories according to the amount involved as part of a broad-brush approach and without regard to the differing consequences for different victims was well within a sound exercise of the sentencing discretion. The nature and gravity of the applicant’s conduct justified the imposition of sentences which exceeded any sentence previously imposed for such an offence. I note that no contention was or could have been advanced that the total effective sentence was beyond that reasonably open to the sentencing judge.[63]
70 This was not a case where a judge had fixed the same sentences or made the same orders for cumulation on a number of charges where there were bases for distinguishing between them. The objections to the approach followed here did not rest upon perceptions of disconformity between sentences. Second, even if the complaint as to the fixing of a period of imprisonment for all of the Commonwealth charges of 28 months which had to be served before the State sentences commenced should be characterised as a structural objection, the question is whether that sentencing framework employed led to an error of principle. That is to say, did the methodology result in a wholly inadequate period of cumulation for the Commonwealth and other offences?
71 For the judge to approach the sentencing task by fixing a single period of imprisonment which was to be served before the commencement of the State offences, described by the respondent as a form of cumulation, carried with it the appreciable risk that it would not adequately reflect the totality of the respondent’s offending on the Commonwealth charges. In Pearce v The Queen,[64] McHugh, Hayne and Callinan JJ said:
To an offender, the only relevant question may be ‘how long’, and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.Sentencing is not a process that leads to a single correct answer arrived at by some process admitting of mathematical precision. It is, then, all the more important that proper principle be applied throughout the process.
Questions of cumulation and concurrence may well be affected by particular statutory rules. If, in fixing the appropriate sentence for each offence, proper principle is not applied, orders made for cumulation or concurrence will be made on an imperfect foundation.[65]
72 In Director of Public Prosecutions v Grabovac,[66] Ormiston JA dealt with the correct approach to the making of orders for cumulation on multiple offences. In that case the sentencing judge went about the sentencing process by reference to what the series of offences might appear to justify by way of a total effective head term and then to work out what were appropriate individual sentences. Ormiston JA then observed:
This case again raises the proper process to be adopted in sentencing persons who have pleaded guilty to or have been found guilty of multiple offences having regard to accepted principles as to totality, proportionality and the like. I concede that difficulties are posed for judges in sentencing for such offences. Those difficulties arise not so much out of the requirements, statutory and otherwise, as to concurrency (see especially s16 of the Sentencing Act), but, rather, in the application of principles relating to cumulation which in some cases may be exacerbated by specific statutory requirements for cumulation which fortunately do not arise in the present case. The ordinary principles as to cumulation require that the — sentencing judge should as far as practicable identify separate events, ‘episodes’ or ‘transactions’ giving rise to specific counts or groups of counts and to recognise them by ordering at least a degree of cumulation. This is to avoid the appearance that an offender may commit a series of crimes after the first such crime with effective impunity, if all sentences for a series of unconnected offences were to be served concurrently. Difficulty arises not so much in providing for a degree of cumulation but in having proper regard to the principle of totality and in avoiding the imposition of an inappropriately crushing sentence.The necessity to have regard to the totality principle has been recognised for many years and is reflected in many cases but it was explicitly recognised by the High Court in the leading case of Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59. The problem lies not so much in requiring judges to stand back and review the aggregate sentence in order to see whether it is just and appropriate but in the shortcuts which may be adopted to effectuate a proper and fair result. Doubtless that influenced the learned judge in this case to decide, first, that a total effective term of 3 years was appropriate and then to impose and adjust the constituent sentences accordingly. In my opinion the latter procedure can and does frequently lead to inadequate and inappropriate consideration being given to the sentences on the separate counts, as has here occurred.[67]
73 The Directors, having left open the possibility — of which there was no suggestion on the plea or during the sentencing remarks — that his Honour had moderated the individual sentences in order to satisfy the principle of totality, they primarily complain about the absence of any cumulation on the Commonwealth charges and the inadequacy of the cumulation on the State charges. If, as the respondent asserts, it should be inferred that the judge intended to deal with cumulation in the broad by fixing one period to cover cumulation for all of the Commonwealth offences before the State sentences commenced, the problem here, as in Grabovic, lay in the ‘short cut’ employed to effectuate a result. It meant that appropriate consideration was not given to the cumulation required on each charge. The failure to assign an appropriate amount of cumulation to each charge, and particularly each Commonwealth charge, resulted in a period of imprisonment being determined which had to be served before the State sentences which did not adequately reflect the respondent’s total criminality for those offences and which in turn resulted in a total effective sentence that was manifestly inadequate.
74 The Directors submit that the sentences on the rolled-up charges 24-27 are each manifestly inadequate. The sentences fail to differentiate between those counts involving one or two victims, and the rolled up counts where a large number of victims were exploited.
75 The respondent submits that when the prosecution opening annexed to his Honour’s reasons is read, his Honour’s characterisation of the offending and the resultant sentences cannot be said to be manifestly inadequate.
76 Charges 6 and 23 were base sentences. During oral submissions the Director stated that as the judge may have moderated those individual sentences, he could not maintain that those sentences were manifestly inadequate. He maintained that the individual sentences on the remainder of the rolled up charges were manifestly inadequate.
77 Charge 24 encompassed requests for child pornography material, made by the offender to 10 Facebook users who were aged between 11 and 15. The respondent points to the fact that no child pornography images were sent as justifying such a sentence.
78 The respondent submits that charge 25, the rolled up charge under s 476(17)(1) Criminal Code of using a carriage service to menace, harass or cause offence, carries with it a maximum penalty of 3 years. The respondent received a 12 months sentence. But there were some 34 victims additional to those the subject of any other charge. The content of some of the offending messages referred to in the prosecution opening on the plea, were of an egregious order. They included:
‘u piss me off tonight ill send ur photos out’‘im not taking no for an answer ... u chose ur path ... u will learn, and harshly ... im under 14 ... ill be reporting the matter ot the police which is my way of sayin fuck u bitch’
‘ur choice u wanna be a slut on the net? Ive got the contacts to make it happen’
‘your fkn dead bitch ... you fucked me over dog ... now u pay and I mean pay ... im gunna ruin u ... u do my fkn pics! And now! How dare you delete me’
79 The threats were relentless, not stopping even after pleas from the victims:
‘I really cant rite now im in hospital right now’, to which the offender replied ‘k sending ur pics out bye’ ... ‘find a girl from me now ... anyone’ .... ‘I need a slut not find one’ ‘if u havent’ ur my newest enemy’. The victim replied ‘I hate living in constant fear of you guys’.
80 Charge 26 encompasses child pornography material sent to the offender in response to his requests, carrying a maximum sentence of 15 years’ imprisonment. In total, 233 category one photographs, four category one videos, and 11 category two videos were sent. Of the 32 victims, 16 of these were subjected to threats, which were also encapsulated in the rolled up charge 25 of using a carriage service to menace, harass or cause offence. The respondent was sentenced to 2 years and 6 months’ imprisonment on charge 26. Charge 2 was an identical charge relating to one victim of causing child pornography material to be transmitted to himself. Sixty photographs were sent in response to demands and threats. On that count the respondent also received a sentence of 2 years and 6 months. The apparent failure to differentiate between the two charges invites appellate scrutiny. That said, the question of whether the sentence on charge 26 or the order for cumulation is manifestly inadequate is to be determined objectively and not by reference to other sentences fixed by the his Honour.
81 Similarly, charge 27, which was a rolled up transmission count, involved the assembly of some 1,423 category 1 photographs, 57 category 2 photographs, 38 category 1 videos and 3 category 2 videos, obtained from numerous victims. This charged involved the offender sending photos of numerous victims (including victims subject of the individual charges),[68] to his email address. This charge attracted a sentence of 2 years and 6 months’ imprisonment. The range of sentences imposed on individual transmission charges, was generally 2–3 years.
82 The objections to the sentences and orders for cumulation on charges 24–27 were no mere structural objections. The complaint was one of manifest inadequacy with respect to the sentences on those charges and the orders for cumulation. They were objectively much more grave as the offending concerned a large number of victims and very serious conduct. A large number of episodes of criminal conduct will magnify the objective gravity of the offence and bear upon cumulation.[69] The rolled up charges were of a quite different order of criminality requiring discrete attention and substantially higher sentences than those charges relating to single victims.[70]
83 Counsel for the respondent reiterated his submission that in the way the sentences were structured the judge must have made an allowance for cumulation which was reflected in the total effective sentence. He thus submitted that any alteration to the individual sentences on the rolled up charges would make no difference to the total sentence.
84 This latter argument is also without substance. This Court made clear in Hudson v The Queen,[71] and reiterated recently in Director of Public Prosecutions v Oksuz,[72] that if an individual sentence is manifestly inadequate, it is no answer to say that it should not be corrected because it will not affect the total effective sentence. That conforms with the approach that must be taken to the sentencing task as expressed in the above passage from Pearce.[73] In any event as we have concluded that there should be orders for cumulation on the rolled up charges, and as the amount of such cumulation will be informed in part by the level of the individual sentences, the increase in the individual sentences proposed, will result in an increase in the total effective sentence.
(iii) Offences of same nature committed whilst on bail
85 The Directors also submit that the consequence of the failure to fix an amount of cumulation on individual charges also meant that insufficient weight was attached to the fact that some of the charges related to further offences committed whilst on bail. In relation to State charge 4, s 16(3C) of the Sentencing Act 1991 gave rise to a presumption of cumulation.
86 Although it is not possible to say whether his Honour did consider that these charges warranted greater cumulation than other charges, the danger arises from the approach adopted by his Honour that insufficient allowance was made for the degree of seriousness of those particular charges and the need for a greater degree of cumulation.[74]
Adequacy of cumulation on State charges
87 His Honour made orders of cumulation of 2 months on all of the State charges. It was conduct arising from the State charges that brought into existence the child pornography. It was offending that was therefore of a grave nature. In addition, the respondent fell to be sentenced as a serious sexual offender on State charges 4, 7, 9, 11,13,14,16,18 ,20 and 21 pursuant to s 6E of the Sentencing Act 1991.
88 The orders for cumulation on these offences do not ensure that the seriousness of the respondent’s criminality in procuring the victim to be concerned in making child pornography is adequately reflected in the total effective sentence.
89 The respondent’s offending shows that the internet may be used as a highly effective medium through which to exploit and sexualise vulnerable children who now are able to have unsupervised access to the internet. Computers and mobile phones with internet access, afford the willing offender with unparalleled world-wide opportunity to exploit the young and impressionable. It is a form of offending that is difficult to detect. It is already evident that the rapidly advancing technology will require courts to increasingly address cases of this kind. The increase in maximum penalty in 2010, no less than 5 years after these offences were introduced,[75] reflects the legislature’s recognition that today’s technological landscape presents a dangerously easy playing field for manipulation of children. The prevalence of such offending means that significant weight must be attached to general deterrence.
90 The respondent’s conduct is a particularly insidious example of this type of offending. His offending spanned a period from December 2011 to October 2013, and included offending which continued whilst on bail. The offending is almost bereft of any mitigating features, with the respondent’s guilty plea not being accepted by the sentencing judge as reflective of genuine remorse.[76] There were some 71 child victims, some as young as 5 years old. The respondent not only assumed a false identify for the purpose of manipulating his victims, but also assumed alternative false identities when he failed in his quest to manipulate.
91 When considered as a whole, the nature and circumstances of this offending were extremely serious, and warranted very significant penalties. The offending epitomises the very behaviour which the legislative amendments of 2010 were designed to capture. That is, offending which leverages the anonymity that the internet provides, in order to violate those most vulnerable internet users.
92 As was noted by both parties, the sentencing exercise to be undertaken here was complex. The respondent submits, the exercise was particularly complex, when one weighed the imperatives of deterrence and denunciation in the context of the respondent’s background and lack of relevant prior convictions, and the need to preserve some hope for the respondent’s rehabilitation, particularly in light of the absence of treatment to date.
93 For the reasons above, we consider that of the individual sentences that remain the subject of complaint, the rolled up charges 24, 25 and 26, to be manifestly inadequate. While we consider the sentence on charge 27 to be very lenient, we are not persuaded it was outside the permissible range. The total effective sentence, also manifestly fails to reflect the respondent’s total criminality.
94 We turn to the question as to whether the residual discretion should be exercised. The respondent submits, relying on this Court’s decision in Karazisis,[77] that in a case such as here, where substantial individual terms of imprisonment have been imposed on multiple charges to reflect individual criminality, and where there was a significant degree of overlap in the conduct, that the Court should not intervene and allow the appeal.
95 The limiting purpose of Crown appeals, namely to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons,[78] provides a framework within which to assess the significance of the factors presently relevant to the exercise of the discretion.[79] The complexity of the sentencing exercise should not allow the need for the imposition of appropriate sentences to be overshadowed. The offending here was undoubtedly very serious. The medium employed to commit these offences, the nature of the offending, the absence of remorse, and the fact that offences were committed on bail meant that general and specific deterrence, protection of young and impressionable minors persons and denunciation assumed particular significance. In our opinion, it is necessary for the Court to intervene in order to correct the errors of principle which underlie the manifestly inadequate sentences, to provide guidance in sentencing for offences of this type, and to ensure the correct maintenance of sentencing standards for this type of offending. No compelling reasons were advanced against this course. We are persuaded by the Directors that the residual discretion should not be exercised in this case.
96 In resentencing the respondent, all of the Commonwealth sentences should be the subject of orders for cumulation, though they will be of a low order because of the number of charges. The individual sentences on the rolled up charges save for charge 23 should be increased in the manner proposed and must attract a greater degree of cumulation because they involve many vulnerable victims that are not the subject of any other charges. The offences committed whilst on bail should also attract greater cumulation.
97 The individual sentences on the State charges were in our opinion lenient. As we have already said, the cumulation on the State charges was in our view inadequate to ensure that the respondent’s total criminality was properly reflected in the total effective sentence. It is only the number of charges upon which the respondent must be sentenced and the need to ensure that the resultant sentence is not a ‘crushing sentence’ that constrains the Court from making considerably higher orders for cumulation.
98 We would therefore allow the appeal and re-sentence the respondent to a total effective sentence on the Commonwealth charges of 8 years 5 months’ imprisonment, with a non-parole period of 5 years. In accordance with s 19(3) Crimes Act 1914 (Cth) we would direct, when each Federal sentence is to commence. On the State charges we would resentence the respondent to a total effective sentence of 5 years and 5 months’ imprisonment, with a non-parole period of 2 years 3 months. In accordance with s 16(4) of the Sentencing Act 1991, we will direct that the State charges commence 60 months after the commencement of the sentence on charge 6, being the base Federal charge.
99 We re-sentence the respondent as follows:
|
Offence
|
Maximum
|
Sentence
|
Cumulation
|
Commencement Date
|
|
|
1
|
Cause a minor to be concerned in the production of child pornography
(CP)[Crimes Act 1958, s 69(1)].
|
10 years imprisonment
|
3 years imprisonment
|
Base (State)
|
The conclusion of Federal Charge 6 (ie 60 months after commencement of
Charge 6)
|
|
2
|
Cause CP material to be transmitted to himself [Criminal Code,
s 474.19(1)(a)(ii)].
|
15 years imprisonment
|
2 years 6 months imprisonment
|
2 months
|
32 months after commencement of Charge 6
|
|
3
|
Use carriage service to engage in sexual activity with person under 16
[Criminal Code, s 474.25A(1)].
|
15 years imprisonment
|
3 years 6 months imprisonment
|
3 months
|
23 months after commencement of Charge 6
|
|
4
|
Cause a minor to be concerned in the production of child pornography
(CP)[Crimes Act 1958, s 69(1)].
|
10 years imprisonment
|
3 years imprisonment
|
3 months
|
3 months after commencement of Charge 1
|
|
5
|
Cause CP material to be transmitted to himself [Criminal Code,
s 474.19(1)(a)(ii)].
|
15 years imprisonment
|
2 years 6 months imprisonment
|
2 months
|
37 months after commencement of Charge 6
|
|
6
|
Transmit CP material [Criminal Code,
s 474.19(1)(a)(iii)].
|
15 years imprisonment
|
5 years imprisonment
|
Base (Commonwealth)
|
20 August 2015
|
|
7
|
Cause a minor to be concerned in the production of child pornography
(CP)[Crimes Act 1958, s 69(1)].
|
10 years imprisonment
|
3 years imprisonment
|
3 months
|
6 months after commencement of Charge 1
|
|
8
|
Cause CP material to be transmitted to himself [Criminal Code,
s 474.19(1)(a)(ii)].
|
15 years imprisonment
|
2 years 6 months imprisonment
|
2 months
|
39 months after commencement of Charge 6
|
|
9
|
Cause a minor to be concerned in the production of child pornography
(CP)[Crimes Act 1958, s 69(1)].
|
10 years imprisonment
|
3 years imprisonment
|
3 months
|
9 months after commencement of Charge 1
|
|
10
|
Cause CP material to be transmitted to himself [Criminal Code,
s 474.19(1)(a)(ii)].
|
15 years imprisonment
|
2 years 6 months imprisonment
|
2 months
|
41 months after commencement of Charge 6
|
|
11
|
Cause a minor to be concerned in the production of child pornography
(CP)[Crimes Act 1958, s 69(1)].
|
10 years imprisonment
|
3 years imprisonment
|
3 months
|
12 months after commencement of Charge 1
|
|
12
|
Cause CP material to be transmitted to himself
[Criminal Code, s 474.19(1)(a)(ii)].
|
15 years imprisonment
|
2 years 6 months imprisonment
|
2 months
|
43 months after commencement of Charge 6
|
|
13
|
Cause a minor to be concerned in the production of child pornography
(CP)[Crimes Act 1958, s 69(1)].
|
10 years imprisonment
|
3 years imprisonment
|
3 months
|
15 months after commencement of Charge 1
|
|
14
|
Cause a minor to be concerned in the production of child pornography
(CP)[Crimes Act 1958, s 69(1)].
|
10 years imprisonment
|
2 years imprisonment
|
2 months
|
29 months after commencement of Charge 1
|
|
15
|
Cause CP material to be transmitted to himself [Criminal Code,
s 474.19(1)(a)(ii)].
|
15 years imprisonment
|
2 years 6 months imprisonment
|
2 months
|
45 months after commencement of Charge 6
|
|
16
|
Cause a minor to be concerned in the production of child pornography
(CP)[Crimes Act 1958, s 69(1)].
|
10 years imprisonment
|
3 years imprisonment
|
3 months
|
20 months after commencement of Charge 1
|
|
17
|
Cause CP material to be transmitted to himself [Criminal Code,
s 474.19(1)(a)(ii)].
|
15 years imprisonment
|
2 years 6 months imprisonment
|
2 months
|
47 months after commencement of Charge 6
|
|
18
|
Cause a minor to be concerned in the production of child pornography
(CP)[Crimes Act 1958, s 69(1)].
|
10 years imprisonment
|
3 years imprisonment
|
3 months
|
23 months after commencement of Charge 1
|
|
19
|
Cause CP material to be transmitted to himself [Criminal Code,
s 474.19(1)(a)(ii)].
|
15 years imprisonment
|
2 years 6 months imprisonment
|
2 months
|
49 months after commencement of Charge 6
|
|
20
|
Cause a minor to be concerned in the production of child pornography
(CP)[Crimes Act 1958, s 69(1)].
|
10 years imprisonment
|
3 years imprisonment
|
3 months
|
26 months after commencement of Charge 1
|
|
21
|
Cause a minor to be concerned in the production of child pornography
(CP)[Crimes Act 1958, s 69(1)].
|
10 years imprisonment
|
3 years imprisonment
|
3 months
|
29 months after commencement of Charge 1
|
|
22
|
Cause CP material to be transmitted to himself [Criminal Code,
s 474.19(1)(a)(ii)].
|
15 years imprisonment
|
2 years 6 months imprisonment
|
2 months
|
51 months after commencement of Charge 6
|
|
23
|
Transmit CP material [Criminal Code,
s 474.19(1)(a)(iii)].
|
15 years imprisonment
|
5 years imprisonment
|
6 months
|
27 months after commencement of Charge 6
|
|
24
|
Solicit CP material [Criminal Code, s 474.19(1)(a)(iv)].
|
15 years imprisonment
|
4 years imprisonment
|
4 months
|
43 months after commencement of Charge 6
|
|
25
|
Use carriage service to menace, harass or cause offence [Criminal
Code, s 474.17(1)].
|
3 years imprisonment
|
2 years imprisonment
|
2 months
|
69 months after commencement of Charge 6
|
|
26
|
Cause CP material to be transmitted to himself [Criminal Code,
s 474.19(1)(a)(ii)].
|
15 years imprisonment
|
5 years imprisonment
|
6 months
|
39 months after commencement of Charge 6
|
|
27
|
Transmit CP material [Criminal Code,
s 474.19(1)(a)(iii)].
|
15 years imprisonment
|
2 years 6 months imprisonment
|
2 months
|
71 months after commencement of Charge 6
|
|
Total Effective Sentence:
|
The total effective sentence (TES) imposed on the Commonwealth charges is 8
years 5 months imprisonment, with a Commonwealth non-parole
period of 5
years.
The TES imposed on the State charges is 5 years 5 months imprisonment with a State non-parole period of 2 years 3 months.
The State charges (base Charge 1) are to commence 60 months after the date of sentencing (20 August 2015).
The combined total effective sentence is 10 years 5 months imprisonment. |
||||
|
Non-Parole Period:
|
7 years 3 months
|
||||
PRIEST JA:
Introduction
100 For the purposes of these appeals, I have had the considerable advantage of reading in draft the reasons for judgment of Redlich and Beach JJA. Their Honours would allow the appeals. I have the misfortune to disagree. In my view, the appeals should be dismissed. It is necessary that I state my reasons for reaching a different conclusion.
101 I am grateful to Redlich and Beach JJA, however, for having provided a detailed discussion of the circumstances of the offending; the essentials of the judge’s reasons for sentence; the applicable legislative framework for the kind of offences with which this appeal is concerned; the principles guiding sentencing for child pornography offences; the principles circumscribing appellate intervention in prosecution appeals; the respondent’s personal circumstances; and important aspects of the appellants’ and the respondent’s submissions. Their Honours’ thorough treatment of those matters has meant that I am largely relieved from their recapitulation, save to the extent that is desirable to make my own reasons readily comprehensible.
102 As the majority have observed, despite the manner in which the common ground of appeal was expressed, ultimately the Director did not contend that any of the individual sentences — save for rolled up charges 24, 25, 26 and 27 — were manifestly inadequate. The Director did contend, however, that the individual sentences on charges 24 to 27, the total effective sentence and the non-parole period were so. It will be necessary to examine how the individual sentences on those charges fit into the overall scheme of the sentence imposed.
The total effective sentence and non-parole period
103 In order to assess the Director’s contentions, it is necessary to examine in some detail the various components of the sentence and its structure, and the judge’s reasons.
104 At the risk of traversing ground already trodden by the majority, the judge was required to impose sentence on an indictment containing both State and Commonwealth charges. He produced, in effect, a total effective sentence on all offences of seven (7) years’ imprisonment, with a non-parole period of four (4) years and eight (8) months. The judge achieved this result by imposing a total effective sentence of five (5) years and two (2) months’ imprisonment, with a non-parole period of three (3) years, on the Commonwealth charges; and a total effective sentence of four (4) years and eight (8) months’ imprisonment on the State charges, the State non-parole period of 28 months being made to commence 28 months after the date of sentencing.
105 I pause to observe that the task of any sentencing judge required to impose sentence on an indictment containing multiple State and Commonwealth charges is an unenviable one. Due to disparate State and Commonwealth sentencing regimes, structural problems often arise. The main source of difficulty flows, I think, from the dictates of s 19 of the Crimes Act 1914 (Cth) (and, perhaps to a lesser extent, s 16(4) of the Sentencing Act 1991 (Vic)). For the purposes of sentencing for Commonwealth offences, concurrency or cumulation are achieved by the court directing when each individual sentence imposed for a Commonwealth offence is to commence.[80] Orders relating to the commencement of the head sentence effectively determine the non-parole period. Thus, as has been observed more than once, sentencing for Commonwealth offences is unnecessarily unwieldy and convoluted, and, therefore, prone to error. Legislative overhaul is, in my view, long overdue.
The charges in summary
106 The respondent pleaded guilty to an indictment which charged eleven State, and sixteen Commonwealth, offences. There was considerable overlap between many of the charges. It was, of course, necessary for the judge to take into account the overlapping nature of the charges when applying the principles of proportionality and totality.
107 Each State charge — charges 1, 4, 7, 9, 11, 13, 14, 16, 18, 20 and 21 — was one of procuring a minor to be concerned in the making of child pornography.[81]
108 Five different offences were embraced by the Commonwealth charges:
• Causing child pornography material to be transmitted to himself — ten charges (charges 2, 5, 8, 10, 12, 15, 17, 19, 22 and 26);[82]
• Using a carriage service to engage in sexual activity with a person under 16 years of age — one charge (charge 3);[83]
• Transmitting child pornography material using a carriage service — three charges (charges 6, 23 and 27);[84]
• Soliciting child pornography material using a carriage service — one charge (charge 24);[85] and
• Using a carriage service to menace, harass or cause offence — one charge (charge 25).[86]
109 Importantly, six of the Commonwealth charges — charges 6, 23, 24, 25, 26 and 27 — were ‘rolled up’ charges, embracing several offences under the cover of each charge.
110 I pause to note that rolled up charges envelop more than one offence under the umbrella of a single charge.[87] Given the imperative to avoid duplicity, charges for separate offences can only be bundled up together this way in a single ‘rolled up’ charge with the consent of the defence on a guilty plea.[88] The compression of several charges into a rolled up charge benefits the defence, in that a single maximum penalty as for a single offence is available (as opposed to a penalty for each offence rolled up in the single charge).[89] Laying a rolled up charge also makes the task of a sentencing judge easier, in that the judge need only impose a single penalty for conduct which represents more than one offence.
111 I pause further to note that the sentences on two of the rolled up charges, charges 6 and 23 — which each attracted an individual sentence of five years’ imprisonment — were intended by the sentencing judge to be ‘base’ sentences. In oral submissions, the Commonwealth Director[90] conceded — despite the manner in which the common ground of appeal was formulated — that he could not maintain that the individual sentences on those two charges were manifestly inadequate (although, as I have mentioned, he contended that the individual sentences on the other rolled up charges were).
112 Notwithstanding that the circumstances of the offending is described by the majority, in order to gain an appreciation of the respondent’s offending in overview, it is worthwhile summarising its essential features in tabular form.
113 There were, as I have said, eleven State charges.[91] It will be observed from the table immediately below that, save for charges 14 and 18 — which attracted sentences of two (2) years’, and two (2) years and six (6) months’, imprisonment respectively — the State charges each attracted individual sentences of three (3) years’ imprisonment:
|
Charge |
Victim/Age |
Charge dates |
Duration |
Sentence |
Summary |
|
1 |
‘CG’ – 14 to 16 (See Cth charges 2 and 3.) |
1/12/2011 – 26/06/2013 |
1 year 7 months |
3 years |
60 child pornography (‘CP’) photographs made by victim at respondent’s request (with threats). 2,500 Skype chat messages, plus Facebook chat. |
|
4 |
‘SBM – 15 to 16 (See Cth charges 4 and 5.) |
1/04/2012 – 26/10/2013 |
1 year 7 months |
3 years |
Victim made CP material at request of respondent, with threats: Photos:
291 x Cat 1; 8 x Cat 2. Videos: 6 x Cat 1, 6 x Cat 2.
|
|
7 |
‘AET’ – 15 to 16 (See Cth charge 8.) |
1/08/2012 – 25/01/2013 |
6 months |
3 years |
Victim made CP material at respondent’s request (with threats):
Photos: 30 x Cat 1. Videos: 1 x Cat 1, 1 x Cat 2.
|
|
9 |
‘DH’ – 13 (See Cth charge 10.) |
13/01/2013 – 16/01/2013 |
4 days |
3 years |
Victim participated in live webcam Skype transmission, from which
respondent captured 43 still images (Cat 1). Subsequent threats.
|
|
11 |
‘AS’ – 14 (See Cth charge 12.) |
1/03/2013 – 18/07/2013 |
4½ months |
3 years |
Victim made CP material at respondent’s request (with threats): 8 CP photographs (not categorised). |
|
13 |
‘DC’ – 15 (See charge 14; Cth charge 15.) |
1/03/2013 – 4/08/2013 |
5 months |
3 years |
Victim made CP material at respondent’s request (with threats): 23 x
Cat 1 photos; 2 x Cat 1 videos.
Plus 11 x Cat 2 photos depicting victim and sister (victim ‘CC’ – see charge 14). |
|
14 |
‘CC’ – 5 (See charge 13; Cth charge 15.) |
1/03/2013 – 4/08/2013 |
5 months |
2 years |
Victim depicted in CP material with her sister (victim ‘DC’
– see charge 13), made at request of respondent: 9
x Cat 1 photos; plus
11 x Cat 2 photos depicting victim and sister (DC).
|
|
16 |
‘NJ’ – 14 (See Cth charge 17.) |
3/03/2013 – 24/04/2013 |
1½ months |
3 years |
Victim made CP material at respondent’s request (with threats): 90 x
Cat 1 photos; 4 x Cat 1 videos.
|
|
18 |
‘JS’ – 16 (See Cth charge 19.) |
On or before 30/06/2013 |
1 day |
2½ years |
Victim made CP material at respondent’s request (with threats): 8 x Cat 1 photos. |
|
20 |
‘ZTC’ – 14 (See charge 21; Cth charge 22.) |
17/7/13 – 27/7/13 |
11 days |
3 years |
Victim made CP material at respondent’s request (with threats):
Photos: 50 x Cat 1; 4 x Cat 2
Videos: 7 x Cat 1, 5 x Cat 2. [7 photographs and 1 video depicted both ZTC and her sister ATC (see charge 21)]. |
|
21 |
‘ATC’ – 10 (See charge 20; Cth charge 22.) |
27/07/13 |
1 day |
3 years |
Victim made CP material at respondent’s request (with threats):
Photos: 50 x Cat 1; 4 x Cat 2.
Videos: 7 x Cat 1, 5 x Cat 2 [7 photographs and 1 video depicted both ZTC and her sister ZTC (see charge 20)]. |
114 Charge 14, involving the victim CC, aged 5 years, was part of a constellation of charges, which also included charge 13 and Commonwealth charge 15, both of which related to CC’s older sister, DC, aged 15 years. The total number of photos and videos made and sent by the victim DC to the respondent (charges 13, 14 and 15) included two Category 1 videos of DC; 23 Category 1 photos of DC; nine Category 1 photos of CC; and 11 Category 2 photos of DC and CC together (the 11 photographs depicting both victims being sent over two separate occasions, on 24 March 2013 and 26 May 2013). The sentence of two years’ imprisonment on charge 14 might be explicable on the basis that it was part of a series of offences involving two victims. Further, charge 18 involved the victim ‘JS’, who was also the victim on Commonwealth charge 19. The sentence of two (2) years and six (6) months’ imprisonment imposed on each of charges 18 and 19 might be explained by the fact that the offending occurred on one day only, and involved only eight Category 1 photos, whereas most of the other offending embraced by the indictment involved offending over a more protracted period and a greater volume of child pornography material. In any event, as I have said, there is no attack on the individual sentences on the State charges.
115 With respect to the sixteen charges under the Criminal Code (Cth),[92] it will be observed from the table below that twelve charges attracted individual sentences of two (2) years and six (6) months’ imprisonment; two charges (charges 6 and 23 — both ‘rolled up’ charges) resulted in sentences of five (5) years’ imprisonment; one charge (charge 3) attracted a sentence of three (3) years and six (6) months’ imprisonment; one charge (charge 24) resulted in two (2) years’ imprisonment; and one charge (charge 25) attracted one (1) year’s imprisonment. (As I have said, the Director contends that the sentences on charges 24, 25, 26 and 27 are manifestly inadequate.)
|
Charge |
Victim/Age |
Charge dates |
Duration |
Sentence |
Summary |
|
2 |
CG – 14 to 16 (See State charge 1; charge 3.) |
1/12/2011 – 26/06/2013 |
1 year,
7 months |
2½ years |
60 CP photos sent by victim to respondent in response to demands and threats. |
|
3 |
CG |
1/12/2011 – 30/04/2013 |
1 year,
5 months |
3½ years |
Live webcam transmissions on Skype, number of instances unknown. Victim touching herself and masturbating, including use of objects, at request of respondent. |
|
5 |
SBM – 15 to 16 (See State charge 4; charge 6.) |
1/04/2012 – 26/10/2013 |
1 year, 7 months |
2½ years |
CP photos and videos sent by victim to respondent in response to demands
and threats: Photos: 291 x Cat 1; 8 x Cat 2. Videos: 6
x Cat 1; 6 x Cat
2.
|
|
6 (Rolled up) |
SBM |
12/10/2012 – 27/07/2013 |
9½ months |
5 years[93] |
Transmission by the respondent of CP photos and videos of victim SBM to 155
recipients, being other victims and Facebook users. Photos:
557 x Cat 1; 8 x
Cat 2. Videos: 10 x Cat 1, 2 x Cat 2.
|
|
8 |
AET – 15 (See State charge 7.) |
25/01/2013 |
1 day |
2½ years |
CP photos and videos sent by victim to respondent in response to demands
and threats: Photos: 30 x Cat 1.
Videos: 1 x Cat 1; 1 x Cat 2. |
|
10 |
DH – 13 (See State charge 9.) |
13/01/2013 – 16/01/2013 |
4 days |
2½ years |
Transmission of live webcam session, captured by respondent as 43 still images; Cat 1. |
|
12 |
AS – 14 (See State charge 11.) |
1/03/2013 – 18/07/2013 |
4½ months |
2½ years |
CP photos sent by victim to respondent in response to demands and threats:
8 CP photos (not categorised).
|
|
15 |
DC and CC – 15 and 5 (See State charges 13 and 14.) |
11/03/2013 – 4/08/2013 |
5 months |
2½ years |
CP photos and videos sent by victim to respondent in response to demands
and threats: 32 x Cat 1 photos; 2 x Cat 2 videos; 11 x Cat
2 photos.
|
|
17 |
NJ – 14 (See State charge 16.) |
3/03/2013 – 24/04/2013 |
1½ months |
2½ years |
CP photos sent by victim to respondent in response to demands and threats:
90 x Cat 1 photographs;
4 x Cat 1 videos. |
|
19 |
JS – 16 (See State charge 18.) |
On or before 30/06/2013 |
1 day |
2½ years |
CP photos sent by victim to respondent in response to demands and
threats:
8 x Cat 1 photos. |
|
22 |
ZTC and ATC – 14 and 10 (See State charges 20 and 21.) |
17/7/13 – 27/7/13 |
11 days |
2½ years |
CP photos and videos sent by victims to respondent in response to demands
and threats: Photos: 50 x Cat 1; 4 x Cat 2. Videos: 7
x Cat 1; 5 x Cat
2.
|
|
23 (Rolled up) |
Multiple |
13/12/2011 –
26/10/2013 |
1 year, 10½ months |
5 years |
Transmission by respondent of CP photos of various victims (other than
SBM), to other victims and Facebook users: 377 x Cat 1 photos;
7 x Cat 2
photos.
|
|
24 (Rolled up) |
10 victims |
9/3/2013 – 7/7/2013 |
4 months |
2 years |
Requests made by respondent to 10 Facebook users, asking the recipients to send naked/partially naked photographs of themselves. The recipients identified as being between 11 and 15 years old. No CP material was sent by these users. |
|
25 (Rolled up) |
34 victims |
25/2/2011 – 27/7/2013 |
2 years,
5 months |
1 year |
Menacing, harassing or offensive messages sent by respondent to 34 victims, on Facebook, email and Skype. |
|
26 (Rolled up) |
32 victims |
19/5/2012 – 4/8/2013 |
1 year, 2½ months |
2½ years |
CP photos and videos sent by 32 victims to the respondent, in response to
his requests and threats:* Photos: 233 x Cat 1. Videos:
4 x Cat 1; 11 x Cat
2.
(* Of these 32 additional victims, 16 were subjected to threats and are included in charge 25.) |
|
27 (Rolled up) |
Multiple |
27/5/2012 – 14/8/2013 |
1 year, 2½ months |
2½ years |
Transmission of CP material by respondent to
‘katherinelovesbarca
@hotmail.com’ email account, to assemble collection of CP material obtained from numerous victims: Photos: 1,423 x Cat 1; 57 x Cat 2. Videos: 38 x Cat 1; 3 x Cat 2. |
116 As for charges 1 to 22 — all discrete offences save for charge 6 (which was a rolled up charge involving a single victim, SBM) — there were eleven victims, and considerable overlap between the State and Commonwealth offences involving those victims:
• CG — charge 1 (State) and charges 2 and 3 (Commonwealth);
• SBM — charge 4 (State) and charges 5 and 6 (Commonwealth);
• AET — charge 7 (State) and charge 8 (Commonwealth);
• DH — charge 9 (State) and charge 10 (Commonwealth);
• AS — charge 11 and charge 12 (Commonwealth);
• DC and CC (sisters) — charges 13 and 14 (State) and charge 15 (Commonwealth);
• NJ — charge 16 (State) and charge 17 (Commonwealth);
• JS — charge 18 (State) and charge 19 (Commonwealth); and
• ZTC and ATC (sisters) — charges 20 and 21 (State) and charge 22 (Commonwealth).
The respondent obtained child pornography from these eleven victims; and, ultimately, as is reflected in charge 26, a further 32 victims. Thus, the total number of individuals from whom child pornography was obtained was 43. The respondent caused these victims to make and send him a total of 858 photographs and 47 videos. He also transmitted photos and videos of victims to other targets as an example for them to copy (charges 6 and 23). Additionally, the respondent solicited child pornography from ten victims (charge 24), and menaced and harassed another 34 victims (charge 25). In all, the respondent’s predations produced a total of 71 victims.
117 The offending occurred between February 2011 to October 2013. Each victim was a young female, aged between five and 16 years. During the period of offending the respondent was aged between 29 and 31 years.
118 Commonly the respondent would contact potential victims posing as a teenage girl. He would send them images of previous victims in their underwear or partially naked, and encourage them to reciprocate by sending sexually explicit images and videos of themselves. Once the victims reciprocated, the respondent used the sent images as leverage to demand further images and videos. He would threaten the victims with publishing the explicit material on the internet or giving it to the victim’s family, friends or school. On occasions, the respondent would threaten to publish the victim’s home address with the material, or to tell the police the victims were sending child pornography to a minor (the respondent posing as a teenage girl). In relation to some victims, the respondent assumed a number of identities (both male and female) to lead the victims to believe she was communicating with a group of people who were friends. This included using one persona to encourage the victim to send material to another persona.
119 The respondent directed the victims as to what he wanted in the material. He also several times demanded explicit images or videos of the victim’s younger sisters or cousins. On two occasions the respondent involved younger sisters of the initial victims in the production and transmission of child pornography material (charges 13, 14 and 15; and charges 21, 22 and 23).
Approach to a ground of manifest inadequacy
120 Each Notice of Appeal contains a single ground complaining of manifest inadequacy.[94] The ground is expressed as follows:[95]
The overall sentence and the individual sentences imposed on the respondent are manifestly inadequate.PARTICULARS OF GROUND
The overall sentence and the individual sentences imposed are manifestly inadequate, in particular, but not only, because the learned sentencing judge:
121 As is readily apparent, the ground common to each Notice of Appeal principally asserts that the sentences are manifestly inadequate ‘in particular, but not only’ because the judge failed to give ‘sufficient weight’ or ‘due regard’ to various matters set out in the ‘particulars’. Manifest inadequacy is, however, a conclusion that does not depend on the attribution of specific error.[96] That being so, in my view it is generally unproductive to endeavour to identify or to isolate a factor (or factors) which might have led a sentencing court to impose an inadequate sentence. Supposed ‘particulars’ can do no more than point to those features which should have been prominent in the exercise of the sentencing discretion;[97] since it is only when all relevant factors are taken into account that it can be seen whether a sentence is, or is not, unreasonable or plainly unjust, and inadequacy is, or is not, plainly apparent.[98]
122 Called upon to decide whether a sentence is manifestly inadequate, members of an appellate court intuitively synthesise all relevant factors bearing on the imposition of sentence. In so doing, they bear in mind that the ground of manifest inadequacy is a stringent one, difficult to make good,[99] there being no single correct sentence for a particular offence or particular offender.[100] Thus, on a prosecution appeal, this Court may only intervene if satisfied that the sentencing judge’s discretion miscarried because the sentence imposed was below the range of sentences that could, consistently with proper sentencing standards, justly be imposed for the particular offending.[101] The Court cannot intervene simply because its members individually would, at first instance, have imposed a more severe sentence. It is only if it is ‘plainly apparent’ that the sentence imposed on the respondent is inadequate, as being ‘manifestly ... too short’, that this Court’s intervention is warranted.[102] Expressed another way, manifest inadequacy will not be established unless the Court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge.[103]
Sentencing principles for child pornography offences
123 Redlich and Beach JJA very helpfully have discussed the legislative framework for child pornography offences, and have canvassed various of the matters relevant to sentencing for such offences.
124 In this case, as was the case in Zarb,[104] the Director paid a deal of attention to the legislative increases in penalty for child pornography offences. He also placed a deal of reliance on De Leeuw,[105] in which Johnson J (with whom Ward JA and Garling J agreed), set out a number of propositions bearing on sentencing for child pornography offences.[106] It is, of course, unnecessary to decide whether the first proposition set out by Johnson J in De Leeuw[107] should be accepted without qualification, since in the present case a custodial sentence was imposed — nobody could have suggested that any other disposition would have been appropriate in the circumstances — the only issue being whether the individual sentences (save for charges 6 and 23), the total effective sentence and non-parole period are manifestly inadequate.
125 In a case such as this, general deterrence will figure prominently in the considerations animating the sentencing discretion.[108] Further, in cases similar to the present, which involves the procuration of child pornography, the number of victims must be regarded as an important consideration. Other important considerations will include the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted; the number of images or items procured; whether the material obtained is for the purpose of sale or further distribution; and whether the offender will profit from the offence.
Sentencing remarks
126 In the present case the very experienced judge was painstaking in formulating his reasons for sentence. It is worthwhile summarising those reasons so as to appreciate the care that was taken.
127 Thus, the judge described the respondent’s modus operandi, which he characterised as ‘particularly insidious’ in that the respondent utilised various approaches online to ‘groom and pressure’, and at times ‘threaten and cajole’, young girls. It was, the judge observed, disturbing to see young girls so ‘prevailed upon’ in their own homes. The respondent’s offending involved a ‘gross corruption’ of the victims, and a ‘gross personal invasion’ of the victims’ homes and privacy, these being the type of activities that Parliament intended by legislation to protect children from. It was ‘no exaggeration’ to describe the respondent’s activities as ‘persistent’.
128 The child pornography in this case fell into Categories 1 and 2 on the appropriate scale. Category 1 is defined as child exploitative material which involved no actual sexual activity but the display or use of the child’s breasts or genitalia; and Category 2 is described as material which involved solo masturbation, sometimes with the use of a sex aid and sometimes the provision of or the action of various low key sex acts between children. The judge accepted, however, that the fact the material was not within ‘the higher categories’ did not mitigate the offending.
129 So far as dissemination of the child pornography was concerned, the respondent’s offending did not involve worldwide distribution, but did involve limited provision of material he had collected on ‘Facebook’. The respondent used these images in an attempt to seduce further victims in a similar way. Thus, rolled up charges 6 and 23 relate to the respondent transmitting pornography of previous victims as part of a scheme approaching other targets (some 175 people).
130 The respondent’s behaviour in procuring the production of the child pornography material was, the judge thought, far more serious than its transmission. As the prosecution submitted, the offending was objectively serious in that the respondent was not only downloading the material but also generating it. This factor had to be taken into account as part of general denunciation.
131 It was also observed that, despite the respondent’s threats, there was no evidence of any distribution having been carried out in the manner he had threatened. In relation to charge 25 — using a carriage service to menace, harass or cause offence — the judge noted that although the eleven victims who made a VARE[109] statement were menaced, harassed and threatened, those aspects were taken into account as aggravating features in the offending relating to those victims, but were not encompassed by charge 25. Charge 25 related to 34 other victims.
132 As to the offending whilst on bail, the judge observed that the respondent’s further offending demonstrated his ‘addiction’ to the particular type of activity with that particular victim.
133 The judge accepted the contents of the victim impact statements, albeit that many were completed by the victims’ parents.
134 General deterrence, the judge observed, was a significant sentencing factor. General deterrence and denunciation should not, however, be overemphasised as sentencing factors.
135 The judge found that the respondent’s plea of guilty was indicative of remorse, but was not persuaded this was at a level of ‘genuine contrition’, given the opinion of the psychologist, Mr Patrick Newton, as to the respondent’s mental state and his ongoing risk of re-offending. Notwithstanding this fact, however, the respondent’s early plea of guilty was valuable, since a number of victims were not required to give VARE statements. But in light of Mr Newton’s opinion, the respondent’s prospects of rehabilitation were to be ‘seen as guarded’, although there was some reason for hope given the respondent’s background and his lack of relevant prior convictions. A prison sentence, the judge thought, may provide a ‘salutary lesson’.
136 It had been submitted on the respondent’s behalf that, in the context of dealing with other background issues, the respondent began to consume alcohol excessively and his intoxication made him prone to committing the relevant offences. The judge found no mitigation, however, in this factor, but did accept that the respondent’s offending was the result of a dysfunctional personality, in that the respondent possesses personality defects and suffers sexual dysfunction. Mr Newton reported that the respondent’s alcohol use was severe enough to warrant the description of ‘alcohol use disorder’, and the conclusion that the respondent needs intensive treatment (notwithstanding the treatment he has engaged in during his time in custody so far).
137 Mr Newton’s report, the judge noted, suggested the respondent has ‘limited insight into the factors contributing to his behaviour’. There was a ‘clear need’ for appropriate treatment to address issues in relation to sexual functioning. Since the respondent could not demonstrate any insight into why sexualised contact between adults and young people was wrong, Mr Newton was likely influenced to have assessed the respondent’s risk of reoffending as being ‘moderate to high’. Further, Mr Newton gave evidence to the effect that, although the respondent knew the behaviour was wrong, the issue was the degree of insight he had into the reasons for his behaviour.
138 The judge accepted that the respondent had been subject to victimisation in gaol whilst on remand, resulting in anxiety and an ‘adjustment disorder’ which was ‘reactive in nature’. Further, the judge accepted that Verdins[110] limbs 5 and 6[111] applied to the respondent, in light of his difficulties in custody and his personality type.
139 Letters of apology from the respondent to the victims were accepted by the judge, and, although they were not delivered, the judge accepted for the purposes of the plea that delivery had been sought.
140 The judge took into account that the respondent’s offending involved no physical contact with the victims and that the relevant material was not released at large. It was accepted that the respondent’s offending is illustrative of his ‘personality make up’ and his ‘deficits’. The judge also took into account the respondent’s relative youth; that this was his first time in custody; and his capacity for rehabilitation with the appropriate treatment. His difficult upbringing, so far as it relates to his personal difficulties and criminal behaviour, were also taken into account to a moderate degree, and balanced against general deterrence and denunciation. A number of references tendered on the respondent’s behalf were also taken into account, and the judge noted that the respondent continues to enjoy the support of his family.
141 It seems to me that the most unpleasant — indeed, repellent — aspect of the appellant’s offending was the manner in which he manipulated young girls into providing intimate and sexualised images of themselves. His transmission of child pornography that he had procured to others was also very serious conduct. And his offending whilst on bail was a feature of aggravation.
142 The majority have described the respondent’s offending as a particularly insidious example of this type of offending. Given that the respondent procured the child pornography through duplicity, by posing as a young person, that description is apt. Their Honours also describe the respondent’s offending as almost bereft of mitigating features, the respondent’s guilty plea not being accepted by the sentencing judge as reflective of genuine remorse. It should be noted, however, that the judge regarded the plea as indicative of some remorse. The sentencing judge said:[112]
The benefit of the early plea is totally accepted. I accept it as a valuable plea indeed in regard to witnesses who have not made VAREs. As to the issue of remorse, I accept the plea as being indicative of remorse. I am unable to accept in the circumstances, as I have already described, that such reflects genuine remorse.
Earlier in his sentencing remarks, the judge had said:
... I will come to remorse in due course. I find and will find there was and has been remorse. Whether it gets to the level of genuine contrition, I am not convinced. I only say, because from the psychological opinion evidence of Mr Newton, it is a question of whether the mental state of Mr Watson is such that he fully comprehends those issues, and indeed he presents as an ongoing risk unfortunately.
143 It seems to me that the sentencing judge recognised that the respondent’s guilty pleas were valuable, in particular with respect to the victims who did not have to provide VARE statements. Moreover, what the judge was endeavouring to convey was that the respondent’s pleas were indicative of an acceptance of guilt and regret for the wrongs committed, but that the respondent’s mental state prevented him from achieving complete contrition. Given that offences of the kind under consideration are difficult to detect, the respondent’s plea of guilty should be seen as very valuable and significantly mitigating. Many victims were relieved of having to provide VARE statements, and all were spared from cross-examination. Furthermore, the community was spared the cost of a complex and expensive trial. And in my opinion, those who plead guilty should do so confident that their plea will be reflected in a real and palpable discount.
144 The respondent had, it is true, assumed false identities to carry out his offending. But in assessing the respondent’s conduct, it is important to have regard to the opinions expressed by the forensic psychologist, Mr Newton:
My assessment of Mr Watson also suggested that his social skills are poor. He is an eccentric and socially awkward man who has been perennially confused about how to establish and/or maintain mature intimacy with adults. His experiences of harassment have left him with deep‐seated fear of rejection and humiliation at the hands of others, and this has made him reluctant to initiate contact with another unless he can ensure that he is able to control the parameters of the interaction. As a result he has gravitated to the online world where communication is highly structured and where his limited social skills do not pose the degree of impediment that would be the case in more mainstream domains of interaction....
Mr Watson’s offending reflects these dysfunctional personality traits. Firstly, his inability to interact in the ‘real’ world led to an obsessive engagement with online chat. Even here, however, he was unable to manage the challenges of relating to women and so resorted to interactions with underage females whom he was able to control and who did not therefore threaten his fragile sense of self‐worth. Furthermore, he adopted personae of various young girls to achieve his ends. Finally, he resorted to threats and other forms of manipulation as he lacked the skills (even with the foregoing in place) to accomplish his ends through non‐coercive means.
The personality traits described above are unequivocally maladaptive. They are strongly developed aspects of Mr Watson’s personality, have been central to his orientation to others since childhood, and have remained essentially unchanged across adolescence and into adulthood. While I am reluctant to diagnose a personality disorder on the basis of a single interview, it is clear that Mr Watson’s personality adjustment is deeply problematic and incorporates traits of both Borderline and Antisocial Personality Disorders. Regardless of the diagnoses, it is evident that Mr Watson suffers significant deficits in his interpersonal and social skills. There is a strong need for him to receive treatment to address these issues.
145 The majority have concluded that the sentence on charge 24 — solicit child pornography using a carriage service — is manifestly inadequate. It will be remembered that the respondent solicited ten Facebook users asking the recipients, aged 11 to 15 years, to send him naked (or partially naked) photographs of themselves. None did. In the circumstances, I regard the sentence of two years’ imprisonment imposed by the judge at first instance as adequate.
146 Charge 25 — use a carriage service to menace, harass or cause offence — involved some vile messages sent to 34 victims. The judge imposed a sentence of imprisonment for one year, which the majority would increase to two years’ imprisonment. Sixteen of the victims on this charge were, however, also victims embraced by charge 26. Hence, there was a considerable overlap in the offending, which the principles of proportionality and totality had to accommodate. Although I regard the sentence on charge 25 as lenient, I do not consider it to be manifestly inadequate.
147 Similarly, I do not consider the sentence on charge 26 — cause child pornography material to be transmitted to himself — to be manifestly inadequate. The sentence of two years and six months’ imprisonment first imposed must be assessed against the background that 16 victims are common to both this charge and charge 25. Although the individual sentence on charge 26 might be considered lenient, in my view it is still within the available range.
148 For the sake of completeness, I should also observe that I regard the sentence of two years and six months’ imprisonment imposed on charge 27 — transmit child pornography material using a carriage service — as within the range of sentences open in the proper exercise of discretion (and I note that the majority would leave the sentence on that charge undisturbed). The transmission involved in this charge was, in effect, a means of storing the material obtained from victims (1423 Category 1, and 57 Category 2, photos; and 38 Category 1, and 3 Category 2, videos).
149 The matter which has caused me greater hesitation is whether the orders effecting a measure of cumulation have produced a manifestly inadequate total effective sentence, and a concomitantly inadequate non-parole period. Given the serious and persistent nature of the respondent’s offending, in my opinion the total effective sentence and non-parole period must be seen to be toward the lower extremity of the appropriate range. They are, however, within range.
150 As has been observed on many occasions previously, sentencing judges are invested with substantial discretion, the exercise of which should not be lightly disturbed. In this case, after careful analysis, the very experienced judge imposed a sentence which, although lenient, was one that was open in the circumstances.
151 Manifest inadequacy is, as has also been observed on many occasions previously, a conclusion. Although the respondent’s offending was undoubtedly serious, weighing all relevant factors in the balance, I cannot conclude that any of the individual sentence, the total effective sentence or non-parole period, are manifestly inadequate.
152 For the foregoing reasons, I would dismiss the appeals.
Table Provided by The Directors on Appeal
|
#
|
Offence
|
Maximum penalty
|
Victim (Age)
|
Charge Dates
|
Duration
|
Summary of offending
|
Sentence
|
Cumulation
|
|
1
|
s 69(1) Crimes Act 1958 (Vic) Cause minor to be concerned
in the production of child pornography |
10 years
|
[Victim 1] (14-16)
|
1/12/2011 – 26/06/2013
|
1 year, 7 months
|
60 child pornography (‘CP’) photographs made by victim at
request of offender, with threats. 2,500 Skype chat messages,
plus Facebook
chat.
|
3 years
|
2 months
|
|
2
|
s 474.19(1)(a)(ii) Criminal Code Cause CP material to be
transmitted to himself
|
15 years
|
[Victim 1]
|
1/12/2011 – 26/06/2013
|
1 year, 7 months
|
60 CP photos sent by victim to offender in response to demands and threats.
|
2½ years
|
Nil
|
|
3
|
s 474.25A(1) Criminal Code Use carriage service to engage in
sexual activity with person under 16
|
15 years
|
[Victim 1]
|
1/12/2011 – 30/04/2013
|
1 year, 5 months
|
Live webcam transmissions on Skype, number of instances unknown. Victim
touching herself and masturbating, including use of objects,
at request of
offender.
|
3½ years
|
Nil
|
|
4
|
s 69(1) Crimes Act 1958 (Vic) Cause minor to be concerned in
the production of CP
|
10 years
|
[Victim 2] (15-16)
|
1/04/2012 – 26/10/2013
|
1 year, 7 months
|
Victim made CP material at request of offender, with threats:
Photos: 291 x Category 1, 8 x Cat 2 Videos: 6 x Cat 1, 6 x Cat 2 |
3 years
|
2 months
|
|
5
|
s 474.19(1)(a)(ii) Criminal Code Cause CP material to be
transmitted to himself
|
15 years
|
[Victim 2]
|
1/04/2012 – 26/10/2013
|
1 year, 7 months
|
CP photos and videos sent by victim to offender in response to demands and
threats:
Photos: 291 x Cat 1, 8 x Cat 2 Videos: 6 x Cat 1, 6 x Cat 2 |
2½ years
|
Nil
|
|
6
|
s 474.19(1)(a)(iii) Criminal Code Transmit CP material
|
15 years
|
[Victim 2]
Rolled-up charge: sending CP of victim to 155 recipients |
12/10/2012
–
27/07/2013
|
9½ months
|
Transmission by the offender of CP photographs and videos of victim [Victim
2] to 155 recipients, being other victims and Facebook
users.
Photos: 557 x Cat 1, 8 x Cat 2 Videos: 10 x Cat 1, 2 x Cat 2 |
5 years
|
Base sentence
|
|
7
|
s 69(1) Crimes Act 1958 (Vic) Cause minor to be concerned in
the production of CP
|
10 years
|
[Victim 3]
(15-16) |
1/08/2012 – 25/01/2013
|
6 months
|
Victim made CP material at request of offender, with threats: Photos: 30 x
Category 1
Videos: 1 x Cat 1, 1 x Cat 2 |
3 years
|
2 months
|
|
8
|
s 474.19(1)(a)(ii) Criminal Code Cause CP material to be
transmitted to himself
|
15 years
|
[Victim 3]
|
25/01/2013
|
1 day
|
CP photos and videos sent by victim to offender in response to demands and
threats:
Photos: 30 x Category 1 Videos: 1 x Cat 1, 1 x Cat 2 |
2½ years
|
Nil
|
|
9
|
s 69(1) Crimes Act 1958 (Vic) Cause minor to be concerned in
the production of CP
|
10 years
|
[Victim 4]
(13) |
13/01/2013
–
16/01/2013
|
4 days
|
Victim participated in live webcam Skype transmission, from which offender
captured 43 still images
(Category 1). Subsequent threats. |
3 years
|
2 months
|
|
10
|
s 474.19(1)(a)(ii) Criminal Code Cause CP material to be
transmitted to himself
|
15 years
|
[Victim 4]
|
13/01/2013
–
16/01/2013
|
4 days
|
Transmission of live webcam session, captured by offender as 43 still
images (Category 1).
|
2½ years
|
Nil
|
|
11
|
s 69(1) Crimes Act 1958 (Vic) Cause minor to be concerned in
the production of CP
|
10 years
|
[Victim 5]
(14) |
1/03/2013 – 18/07/2013
|
4½ months
|
Victim made CP material at request of offender, with threats:
8 CP photographs (not categorised) |
3 years
|
2 months
|
|
12
|
s 474.19(1)(a)(ii) Criminal Code Cause CP material to be
transmitted to himself
|
15 years
|
[Victim 5]
|
1/03/2013 – 18/07/2013
|
4½ months
|
CP photos sent by victim to offender in response to demands and threats: 8
CP photos (not categorised)
|
2½ years
|
Nil
|
|
13
|
s 69(1) Crimes Act 1958 (Vic) Cause minor to be concerned in
the production of CP
|
10 years
|
[Victim 6]
(15) |
1/03/2013 – 4/08/2013
|
5 months
|
Victim made CP material at request of offender, with threats:
23 x Category 1 photos 2 x Cat 1 videos Plus 11 x Cat 2 photos depicting victim and sister ([Victim 7]) |
3 years
|
2 months
|
|
14
|
s 69(1) Crimes Act 1958 (Vic) Cause minor to be concerned in
the production of CP
|
10 years
|
[Victim 7]
(5) |
1/03/2013 – 4/08/2013
|
5 months
|
Victim depicted in CP material with her sister ([Victim 6]), made at
request of offender:
9 x Category 1 photos Plus 11 x Cat 2 photos depicting victim and sister ([Victim 6]) |
2 years
|
2 months
|
|
15
|
s 474.19(1)(a)(ii) Criminal Code Cause CP material to be
transmitted to himself
|
15 years
|
[Victim 6]
& [Victim 7] |
11/03/2013
– 4/08/2013
|
5 months
|
CP photos and videos sent by victim to offender in response to demands and
threats:
32 x Category 1 photos 2 x Cat 2 videos 11 x Cat 2 photos (victims [Victim 6] & [Victim 7]) |
2½ years
|
Nil
|
|
16
|
s 69(1) Crimes Act 1958 (Vic) Cause minor to be concerned in
the production of CP
|
10 years
|
[Victim 8]
(14) |
3/03/2013 – 24/04/2013
|
1½ months
|
Victim made CP material at request of offender, with threats: 90 x
Category 1 photographs
4 x Category 1 videos |
3 years
|
2 months
|
|
17
|
s 474.19(1)(a)(ii) Criminal Code Cause CP material to be
transmitted to himself
|
15 years
|
[Victim 8]
|
3/03/2013 – 24/04/2013
|
1½ months
|
CP photos sent by victim to offender in response to demands and threats:
90 x Category 1 photographs 4 x Category 1 videos |
2½ years
|
Nil
|
|
18
|
s 69(1) Crimes Act 1958 (Vic) Cause minor to be concerned in
the production of CP
|
10 years
|
[Victim 9]
(16) |
On or before 30/06/2013
|
1 day
|
Victim made CP material at request of offender, with threats: 8 x Category
1 photos
|
3 years
|
2 months
|
|
19
|
s 474.19(1)(a)(ii) Criminal Code Cause CP material to be
transmitted to himself
|
15 years
|
[Victim 9]
|
On or before 30/06/2013
|
1 day
|
CP photos sent by victim to offender in response to demands and threats: 8
x Category 1 photos
|
2½ years
|
Nil
|
|
20
|
s 69(1) Crimes Act 1958 (Vic) Cause minor to be concerned in
the production of CP
|
10 years
|
[Victim 10]
(14) |
17/7/13 – 27/7/13
|
11 days
|
Victims made CP material at request of offender, with threats:
Photos: 50 x Category 1, 4 x Cat 2 Videos: 7 x Cat 1, 5 x Cat 2 (7 photographs and 1 video depicted both sisters) |
3 years
|
2 months
|
|
21
|
s 69(1) Crimes Act 1958 (Vic) Cause minor to be concerned in
the production of CP
|
10 years
|
[Victim 11]
(10) |
27/07/13
|
1 day
|
3 years
|
2 months
|
|
|
22
|
s 474.19(1)(a)(ii) Criminal Code Cause CP material to be
transmitted to himself
|
15 years
|
[Victim 10] and [Victim 11]
|
17/7/13 – 27/7/13
|
11 days
|
CP photos and videos sent by victim to offender in response to demands and
threats:
Photos: 50 x Category 1, 4 x Cat 2 Videos: 7 x Cat 1, 5 x Cat 2 |
2½ years
|
Nil
|
|
23
|
s 474.19(1)(a)(iii) Criminal Code Transmit CP material
|
15 years
|
Rolled-up charge
|
13/12/2011
-
26/10/2013
|
1 year,
10½ months |
Transmission by offender of CP photographs of various victims (other than
[Victim 2]), to other victims and Facebook users: 377 x
Category 1 photographs
7 x Category 2 photographs |
5 years
|
2 months
|
|
24
|
s 474.19(1)(a)(iv) Criminal Code Solicit CP material
|
15 years
|
Rolled-up charge – 10 victims
|
9/3/2013 – 7/7/2013
|
4 months
|
Requests made by offender to 10 Facebook users, asking the recipients to
send naked/partially naked photographs of themselves. The
recipients identified
as being between 11 and 15 years old. No CP material was sent by these users.
|
2 years
|
Nil
|
|
25
|
s 474.17(1) Criminal Code Use carriage service to menace,
harass or cause offence
|
3 years
|
Rolled-up charge – 34 victims
|
25/2/2011 – 27/7/2013
|
2 years, 5 months
|
Menacing, harassing or offensive messages sent by offender to 34 victims,
on Facebook, email and Skype.
|
1 year
|
Nil
|
|
26
|
s 474.19(1)(a)(ii) Criminal Code Cause CP material to be
transmitted to himself
|
15 years
|
Rolled-up charge – 32 victims
|
19/5/2012 – 4/8/2013
|
1 year,
2½ months
|
CP photos and videos sent by 32 victims to the offender, in response to his
requests and threats*:
Photos: 233 x Category 1 Videos: 4 x Category 1, 11 x Category 2 (* Of these 32 additional victims, 16 were subjected to threats and are also included in charge 25) |
2½ years
|
Nil
|
|
27
|
s 474.19(1)(a)(iii) Criminal Code Transmit CP material
|
15 years
|
Rolled-up charge – forwarding CP of victims to
‘katherinelovesba rca
@hotmail.com’ |
27/5/2012 – 14/8/2013
|
1 year,
2½ months
|
Transmission of CP material by offender to ‘katherinelovesbarca
@hotmail.com’ email account, to assemble collection of CP material
obtained from numerous victims: Photos: 1,423 x Category 1, 57 x Cat 2
Videos: 38 x Cat 1, 3 x Cat 2 |
2½ years
|
Nil
|
- - -
[1] Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520, 538–540 [59]–[62].
[2] DPP (Cth) v Watson (Unreported, County Court of Victoria, Judge McInerney, 19 and 20 August 2015) (‘Reasons’).
[3] [1998] HCA 57; (1998) 194 CLR 610 (‘Pearce’).
[4] During the course of oral submissions, the Director abandoned the complaint about the manifest inadequacy on charges 4, 5 and 23, however sought to rely on these charges and demonstrating that the totality of the offending was not taken into consideration in the ultimate sentence.
[5] The prosecution opening included examples such as ‘hot [victim’s name] 12 ;)’, ‘sexy schoolgirl [victim’s name] videos’ and ‘[victim’s name] Indian schoolgirl — near [address of victim], school — [victim’s school]’.
[6] Reasons [90].
[7] Ibid [91].
[8] Ibid [90].
[9] Ibid [26].
[10] Ibid [27].
[11] Ibid [30].
[12] Ibid [20].
[13] Ibid [24].
[14] Ibid [33].
[15] Ibid.
[16] Charges 1–5, 7–22.
[17] Although note, that there was only 1 charge under s 474.25A(1) (use carriage service to engage in sexual activity with person under 16), which related to victim 1 only.
[18] Charge 24 was a rolled up charge pursuant to s 474.19(1)(a)(iv) of soliciting child pornography material. This offending involved requesting naked/partially naked photographs, however no photographs actually being sent.
[19] Explanatory Memorandum, Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010, 1.
[20] Ibid 7.
[21] [2015] NSWCCA 174 (‘Porte’).
[22] Ibid [57]–[58].
[23] Ibid [59].
[25] Ibid 407 [55].
[26] [2015] NSWCCA 183 (‘De Leeuw’).
[27] Ibid [72].
[28] [2010] VSCA 350; (2010) 31 VR 634 (‘Karazisis’).
[29] Ibid 662–3 [127] (citations omitted).
[30] [1936] HCA 40; (1936) 55 CLR 499.
[31] See DPP v Oksuz [2015] VSCA 316.
[32] See also R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29; DPP v D’Alessandro [2010] VSCA 60; [2010] 26 VR 477.
[33] See De Leeuw [2015] NSWCCA 183 [72](b)(i).
[34] Reasons [20]–[24].
[35] Ibid [20].
[36] Ibid [23].
[37] [2014] VSCA 37 (‘Heathcote’).
[38] Ibid [25].
[39] See Heathcote [2014] VSCA 37 [42].
[40] Edwards v The Queen [2013] VSCA 188 [19]; R v Fulop [2009] VSCA 296; (2009) 236 FLR 376.
[41] Reasons [24].
[42] De Leeuw [2015] NSWCCA 183 [140].
[44] Ibid [33].
[45] [2010] VSCA 60; (2010) 26 VR 477 (‘D’Alessandro’).
[46] Ibid 483 [21] (emphasis added).
[47] Reasons [100].
[48] Ibid [121].
[49] Ibid [123].
[50] [2007] VSCA 102; (2007) 16 VR 269 (‘Verdins’).
[51] R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29; D’Alessandro [2010] VSCA 60; [2010] 26 VR 477; R v Fulop [2009] VSCA 296; (2009) 236 FLR 376; Heathcote [2014] VSCA 35; De Leeuw [2015] NSWCCA 183; Porte [2015] NSWCCA 174.
[52] Assheton v R [2002] WASCA 209; (2002) 132 A Crim R 237 [35]; R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29 [100]; D’Alessandro [2010] VSCA 60; (2010) 26 VR 477 [21]; R v Jongsma [2004] VSCA 218; (2004) 150 A Crim R 386 [35]–[36].
[53] See the discussion to the same effect in DPP v O’Neill [2015] VSCA 325.
[55] Bugmy v The Queen (2013) 302 ALR 192, 203 [44].
[56] Reasons [95].
[57] Ibid [125].
[58] Laurentiu & Becheru v The Queen (1992) 63 A Crim R 402, 422, citing R v Richards [1981] 2 NSWLR 464, 465. See also R v Basso [1999] VSCA 201; (1999) 108 A Crim R 392 [21]–[25] (Chernov JA) and [57]–[61] (Charles JA).
[59] Reasons [182]–[191].
[63] Ibid [17]–[21].
[64] [1998] HCA 57; (1998) 194 CLR 610.
[65] Ibid 623–4 [45]–[47].
[66] [1994] VR 664 (‘Grabovac’).
[67] Ibid 676.
[68] The exact number of victims under this charge is not made clear on the Prosecution Opening.
[69] De Leeuw [2015] NSWCCA 183 [106], citing R v Richard [2011] NSWSC 866 [65](f)
[70] R v Richard [2011] NSWSC 866 [65](f)
[73] See [71] above, citing Pearce [1998] HCA 57; (1998) 194 CLR 610, 623–4 [45]–[47].
[74] Lauenti & Bercheru v The Queen (1992) 63 A Crim R 402, 422; R v Basso [1999] VSCA 201; (1999) 108 A Crim R 392, 397–8 [21]–[25], 404-5 [57]–[61].
[75] See Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010.
[76] Reasons [122].
[77] [2010] VSCA 350; (2010) 31 VR 634.
[78] Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462.
[79] Ibid 477 [36].
[80] Compare Sentencing Act 1991 (Vic), s 16.
[81] Crimes Act 1958 (Vic), s 69(1).
[82] Criminal Code (Cth), s 474.19(1).
[83] Criminal Code (Cth), s 474.25A(1).
[84] Criminal Code (Cth), s 474.19(1).
[85] Criminal Code (Cth), s 474.19(1).
[86] Criminal Code (Cth), s 474.17(1).
[87] DPP v Jones (a pseudonym) (2013) 40 VR 267, 286 [80] (Redlich and Priest JJA).
[88] R v Jones [2004] VSCA 68 [12]–[13] (Charles JA). See also R v Beary [2004] VSCA 229; (2004) 11 VR 151, 156–7, [11]–[14] (Callaway JA). See further and compare Criminal Procedure Act 2009, Schedule 1, cl 4A, which permits the laying of a ‘course of conduct’ charge for a State offence.
[89] Ibid.
[90] The Commonwealth Director of Public Prosecutions had the carriage of both appeals.
[91] As previously mentioned, each was laid under s 69(1) of the Crimes Act 1958 (Vic). The maximum penalty is 10 years’ imprisonment.
[92] The maximum penalty for the charges laid under s 474.19(1) and s 474.25A(1) was 15 years’ imprisonment; and the maximum penalty for the single charge laid under s 474.17(1) (charge 25) was three years’ imprisonment.
[94] The two Notices of Appeal filed by the Commonwealth and Victorian Directors of Public Prosecutions respectively are substantially the same. A single Written Case was filed by the Commonwealth on behalf of both Directors, the Commonwealth Director also having carriage of the appeals on behalf of both.
[95] The single ground of appeal filed on behalf of each Director is the same, save for ‘particular’ 5, which, in both cases, relates to failure to accumulate the sentences imposed on Commonwealth and State charges respectively.
[96] Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J) (‘Dinsdale’).
[97] Cf Practice Direction No 2 of 2011 (First Revision) — Court of Appeal: Criminal Appeals, Section 4(2).
[98] Dinsdale, 325–6 [6].
[99] DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 662–3 [127] (Ashley, Redlich and Weinberg JJA) (‘Karazisis’).
[100] Bugmy v The Queen (2013) 249 CLR 571, 588–9 [24] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) (‘Bugmy’).
[101] Ibid. See also Munda v WA (2013) 249 CLR 600, 613 [34] (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ).
[102] Dinsdale, 325–6 [6].
[103] Karazisis, 662–3.
[104] DPP (Cth) v Zarb [2014] VSCA 347 (‘Zarb’).
[105] R v De Leeuw [2015] NSWCCA 183 (‘De Leeuw’).
[106] Ibid [72].
[107] See [34] above.
[108] Smith, [27]; De Leeuw, [72].
[109] Video and audio recorded evidence.
[110] R v Verdins [2007] VSCA 102; (2007) 16 VR 269 (‘Verdins’).
[111] Verdins limbs 5 and 6 are (ibid 276 [32]):
Impaired mental functioning, whether temporary or permanent (‘the condition’), is relevant to sentencing in at least the following six ways:
...
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
[112] Emphasis added.
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