Maine v The Queen [2017] VSCA 96 (3 May 2017)

Last Updated: 3 May 2017

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0015

ROBERT MAINE	Applicant
v
THE QUEEN	Respondent

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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)

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JUDGES:	TATE JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined ‘on the papers’
DATE OF JUDGMENT:	3 May 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 96
JUDGMENT APPEALED FROM:	[2016] VCC 1992 (Judge Wischusen)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Use of a carriage service to access child pornography material – Knowingly possessing child pornography material – Total effective sentence of four years and six months’ imprisonment – Non-parole period of three years – No specific error in assessing prospects of rehabilitation – Manifest excess – Leave to appeal granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearance	Stary Norton Halphen
For the Respondent	No appearance	Mr John Cain, Solicitor for Public Prosecutions

TATE JA:

1 The applicant, Robert Maine (‘Maine’), applies for leave to appeal against sentence.

2 He pleaded guilty to one charge of using a carriage service to access child pornography and one charge of knowingly possessing child pornography. He was sentenced by the County Court on 16 December 2016 as follows:[1]

Charge	Offence	Maximum penalty	Sentence	Cumulation
1	Use a carriage service to access child pornography material [Criminal Code 1995 (Cth) s 474.19(1)]	15 years’ imprisonment	3 years and 6 months’ imprisonment	Imprisonment to commence 18 months before the expiration of sentence on charge 2. To serve 2 years before being eligible for parole.
2	Knowingly possess child pornography material [Crimes Act 1958 s 70]	5 years’ imprisonment	2 years and 6 months’ imprisonment	Base with a non-parole period of 18 months.
Total effective sentence		4 years and 6 months’ imprisonment
Non-parole period		3 years
Pre-sentence detention declared		33 days
Section 6AAA statement (Charge 2)		3 years and 6 months’ imprisonment with a non-parole period of 2 years.
Other orders		Sentenced as a serious sexual offender in respect of charge 2. Obligation to report per s 34 of the Sex Offenders Registration Act 2004 for a period of 15 years.[2]

Circumstances of the offending^[3]

3 Maine was identified as the subscriber of an IP address used to access child pornography by the Australian Federal Police and a search warrant was executed at his address on 17 June 2015.

4 The police seized two computer towers, a hard drive and a USB stick which were found to contain either child pornography material or metadata of deleted child pornography material. Maine was interviewed and gave a series of answers designed to deflect responsibility; some answers were found to be simply untrue and others sought to minimise his activities.

5 The earliest date that the child pornography material was accessed could not be determined. With respect to Charge 1, a contested committal took place in relation to the period over which the access occurred. Ultimately, a plea offer was accepted to the charge of accessing child pornography material between the dates of 2 October 2014 and 11 March 2015. During that period, 46 images were accessed. The classification of those images according to the Australian National Victim Library/Child Exploitation Tracking System was as follows:

Level	Description	Number of images
1	Images depicting under age persons nude or in erotic poses, with no sexual activity.	31
2	Solo masturbation by a child or non-penetrative sex acts between children.	1
3	Non-penetrative sexual activity between children and adults.	7
4	Penetrative sexual activity between children only, or between children and adults.	7
5	Sadism, bestiality or humiliation.	0
6	Anime, cartoons, drawings etc depicting children engaged in sexual poses or activity.	0

6 Charge 2 relates to the child pornography located on Maine’s computer towers and USB stick on 17 June 2015. A total of 380 files were identified and classified as follows:

Level	Description	Images	Videos
1	Images depicting under age persons nude or in erotic poses, with no sexual activity.	196	0
2	Solo masturbation by a child or non-penetrative sex acts between children.	30	3
3	Non-penetrative sexual activity between children and adults.	40	1
4	Penetrative sexual activity between children only, or between children and adults.	94	8
5	Sadism, bestiality or humiliation.	8	0
6	Anime, cartoons, drawings etc depicting children engaged in sexual poses or activity.	0	0
Total		380

The judge’s reasons

7 The judge noted that Maine, now aged 58, had already served a term of imprisonment for possession of child pornography material. Moreover, Maine’s parole period was completed in mid-2014, only a few months before the commencement of the period to which Charge 1 relates. There was no other significant criminal history.

8 His Honour took into account, as a factor in mitigation, Maine’s plea of guilty which he treated as having utilitarian value and as some evidence of Maine’s remorse. He noted that Maine’s father, who served in the Navy, had been a strict disciplinarian and was often absent from home. By the age of 14 Maine’s paternal aunt’s husband was sexually abusing him, his brothers were in the armed services, and his mother had suffered a stroke. At the age of 15 Maine was endeavouring to complete an apprenticeship and caring for his disabled mother.

9 Maine completed his apprenticeship and has had steady full-time employment, including as a truck driver. He married at the age of 36 and there is a child from that marriage. He is now estranged from his ex-wife and his daughter because of his earlier offending. He is currently in a supportive relationship and has received counselling from a church counsellor. It was conceded before the judge that no Verdins[4] issue arose.

10 With respect to the issue of Maine’s prospects of rehabilitation, the judge stated:

On your behalf it was submitted that your prospects of rehabilitation could be regarded as ‘guarded’. In my view, given your mature age, and how promptly you returned to this form of offending after completion of a term of imprisonment and your parole period, ‘guarded’ is probably a bit on the optimistic side.^[5]

11 The judge went on to deal with the volume of material uncovered, which he regarded as comparatively modest as was also the agreed duration of the offending. Nevertheless, he considered that the offending was serious, especially given the damage caused to the children involved, and that there was a need to give effect to principles of both general and specific deterrence. He said:

It was pointed out, and I accept, that compared with the volume of material considered in some of the cases to which I have been referred, the amount of material you were found in possession of was relatively modest, and the period to which Charge 1 relates covers only a little over five months. I also accept that there is a degree of overlap between the offences though it was not submitted that there should not be cumulation here.

Nevertheless, even at this level, the volume of material suggests that a great many children were damaged in the production of the material you accessed and possessed. It was not suggested that the offending here could be regarded as other than serious, and I am satisfied that no sentencing disposition other than a term of imprisonment to be immediately served is appropriate in all the circumstances of your case.

Sentencing principles for offending of this sort were not in dispute. It was accepted that general deterrence must be given great weight in the sentencing consideration, and that specific deterrence is of particular relevance here because you have already served a term of imprisonment for similar offending.^[6]

12 As mentioned, the total effective sentence imposed was four years and six months with no eligibility for parole until the expiration of three years.

Grounds of appeal

13 Maine relies on two grounds of appeal:

Ground 1: The learned judge erred in his assessment of the Applicant’s prospects of rehabilitation.

Ground 2: The individual sentences on charge 1 and the total sentence imposed is manifestly excessive, having regard to:

1. The quantum of images comprising charges 1 and the length of time of the offending;

b. The Applicant’s prospects for rehabilitation; and

c. Cumulation between the charges.

Ground 1 – specific error

14 Maine accepts that this form of offending warrants a term of immediate incarceration. He also accepts that his prior convictions and the close proximity of his offending to the conclusion of his earlier parole period necessarily elevate the seriousness of the offending and increase the need for specific deterrence.

15 Nevertheless, he submits, those factors do not eliminate his prospects of rehabilitation and they should not be treated as obviating the need for a sentencing court to consider his rehabilitation as a relevant factor to be fostered. He emphasises that he has managed to live an offence-free life for a significant period of time and that his age should not be regarded as indicating that he is incapable of change.

16 I do not consider that his Honour fell into error in his assessment of the prospects of Maine’s rehabilitation. It was Maine’s own counsel who described his prospects as ‘guarded’. That is in itself a considerably restricted view of Maine’s prospects. In my opinion, the judge did not eliminate from his mind the potential for Maine to be rehabilitated but rather, accurately, treated the description of ‘guarded’ as more optimistic than was warranted given the seriousness of the offending, the fact that Maine had previously been imprisoned for the same form of offending, and that his previous sentence had appeared to leave him undeterred from engaging in similar offending soon after his earlier parole period had concluded.

17 In the circumstances, I consider that it is not reasonably arguable that the judge committed the specific error alleged.

18 I would refuse leave to appeal on ground 1.

Ground 2 – manifest excess

19 In support of ground 2, Maine submits that the quantum of images involved in charge 1 and the short duration of the conduct that founded charge 1 (46 images within five months) renders the sentence on charge 1 manifestly excessive. He submits that 46 images is at the lower level of offending given the volume of images in DPP(Cth) v Garside[7] (6,018 images and videos); DPP(Cth) v Guest[8] (6,058 images and videos); DPP (Cth) v D’Alessandro[9] (over 16,000 images and videos) and DPP (Cth) v Zarb[10] ( 415 images and one video) where the Court observed that there were ‘ ... fewer images than is often the case’.[11]

20 Maine relies on the recent statistics from the Sentencing Advisory Council of Victoria to the effect that the median range of imprisonment for offending of the character of charge 1 was 1.17 years. While acknowledging the limitations of relying upon statistics he maintains that the sentence of three years and six months’ imprisonment imposed on him in respect of charge 1 places his sentence into the upper ranges for this kind of offence. He submits that this is unjustified given that:

• he did not produce the images himself nor was he involved in their creation;

• he did not seek to profit from the pornography; and

• he did not distribute or transmit the material to others.

21 He also draws attention to the comparison between the sentence imposed in respect of charge 1 (three years and six months’ imprisonment) and that in respect of charge 2 (two years and six months’ imprisonment) where the offending in charge 2 related to 380 images and videos. This might be thought to raise a question-mark about the consistency of the sentencing even acknowledging that charge 1 carries a significantly higher maximum sentence.

22 Furthermore, Maine submits that the cumulation ordered with respect to charge 2 is erroneous. Maine was ordered to serve 12 months on charge 2 before commencing serving his sentence with respect to charge 1 (18 months before the expiry of two years and six months is a period of 12 months). This means that he was ordered to serve 12 months of a 30 months sentence of imprisonment with respect to charge 2 which he argues is too lengthy in the circumstances.

23 The Crown responds by submitting that:

• the maximum sentences for each offence indicate that they are viewed by Parliament as very serious;

• the penalty for the federal offence (charge 1) was increased from 10 years to 15 years’ imprisonment in 2010;

• 30 per cent of the images founding charge 1 were in categories 3 and 4;

• it is accepted that not all level 1 images can be considered to be innocuous but may in fact exhibit moral depravity;[12]

• the volume of material is not the sole or most significant factor of the seriousness of the offending;[13]

• charge 1 was a ‘rolled up’ charge;

• on charge 2 Maine was sentenced as a serious sex offender; and

• the degree of cumulation reflected the degree of overlap between the offences and at the same time the seriousness of the offending and Maine’s relevant prior conviction.

24 I accept it is necessary for the courts to demonstrate that child pornography will not be tolerated and that ‘those inclined to exploit children by involving them in the production of child pornography are encouraged by the fact that there is a market for it’.[14] Nevertheless, in my view, it is reasonably arguable that the sentence on charge 1 was manifestly excessive and I am not of the opinion that there is no reasonable prospect that the Court of Appeal would impose a less severe sentence.[15] If there is an error this may affect the total effective sentence. If the sentence is to be reviewed, the issue of cumulation should also be considered.

Conclusion

25 With respect to ground 1 of the proposed grounds of appeal, I would refuse leave to appeal.

26 I would grant leave to appeal with respect to ground 2.

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^[1] R v Maine [2016] VCC 1992 [30]–[34] (‘Reasons’).

^[2] Maine conceded that the reporting obligation should have been stated to apply for life, not 15 years.

^[3] The circumstances of the offending have been summarised from the Prosecution Opening for Plea, 8 December 2016, which was accepted and treated as an agreed statement of facts.

^[4] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

^[5] Sentencing reasons [19].

^[6] Ibid [20]-[22].

^[7] [2016] VSCA 74.

^[8] [2014] VSCA 29.

^[9] [2010] VSCA 60; (2010) 26 VR 477 (‘D’Alessandro’).

^[10] (2014) 46 VR 832.

^[11] Ibid 843 [31].

^[12] Heathcote (a pseudonym) v The Queen [2014] VSCA 37 [45].

^[13] Ibid.

^[14] D’Alessandro [2010] VSCA 60; (2010) 26 VR 477, 483 [21] (Harper JA).

^[15] Criminal Procedure Act 2009, s 280.