Adrian Robert Finley v The Queen
[2018] VSCA 202
•6 August 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0073
| ADRIAN ROBERT FINLEY | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | TATE and HARGRAVE JJA |
| WHERE HELD: | BENDIGO |
| DATE OF HEARING: | 6 August 2018 |
| DATE OF JUDGMENT: | 6 August 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 202 |
| JUDGMENT APPEALED FROM: | DPP v Meadows (a pseudonym) (unreported (restricted, not suitable for publication), County Court of Victoria, Judge Carmody, 8 March 2018) |
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CRIMINAL LAW – Sentence – Application for leave to appeal – One charge of indecent act with a child under 16, two charges of production of child pornography, one charge of using a carriage service for child pornography, one charge of theft, one charge of possession of child pornography and one summary offence of ‘upskirting’ – Plea of guilty – No prior convictions – Moderate-High Risk of reoffending – Some remorse – Limited insight – Importance of general deterrence – Total effective sentence of 3y 5m – Non-parole period of 2y 6m – Manifest excess – Leave refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Kenny | Cahills Barristers & Solicitors |
| For the Respondent | Mr B L Sonnet | Mr J Cain, Solicitor for Public Prosecutions |
TATE JA
HARGRAVE JA:
On 7 March 2018, Adrian Robert Finley (‘Finley’) pleaded guilty to five State indictable offences. These included one charge of committing an indecent act with a child under 16 years contrary to s 47(1) of the Crimes Act 1958 (Charge 1).
Charge 1 was defined as a ‘sexual offence’ under sub-div 8C of the Crimes Act, ‘Sexual offences against children’, as at 12 December 2015, applicable at the time of the offending. Accordingly, pursuant to s 4(1A) of the Judicial Proceedings Reports Act 1958 it is an offence to publish any matter that identifies the victim. Throughout the judgment we will refer to the victim simply as ‘the child’.
The charges under State law to which Finley pleaded guilty also included two charges of producing child pornography contrary to s 68(1) of the Crimes Act (Charges 2 and 3), one charge of theft contrary to s 74(1) of the Crimes Act (Charge 5); and one charge of possession of child pornography contrary to s 70(1) of the Crimes Act (Charge 6).
Finley also pleaded guilty to one Commonwealth indictable offence of using a carriage service for child pornography material contrary to s 474.19 of the Criminal Code (Cth) (Charge 4), and to one State summary offence of intentionally visually capturing another person’s genital or anal region contrary to s 41B of the Summary Offences Act 1966.[1]
[1]Upon committal of Finley for trial the summary charge was transferred to the County Court pursuant to s 145 of the Criminal Procedure Act 2009.
On 8 March 2018, Finley was sentenced in the County Court at Bendigo by Judge Carmody as follows:[2]
[2]DPP v Meadows (a pseudonym) (unreported, County Court of Victoria, Judge Carmody, 8 March 2018) (‘Sentencing reasons’). The sentencing reasons are restricted as not suitable for publication.
Charges on Indictment Offence Maximum Sentence Cumulation 1. Indecent act with a child under 16 [s 47(1) Crimes Act1958] 10 y 18 m Base sentence 2. Production of child pornography [s 68(1) Crimes Act] 10 y 6 m 3 m 3. Production of child pornography [s 68(1) Crimes Act] 10 y 6 m 3 m 4. Using a carriage service for child pornography [s 474.19 Criminal Code (Cth)] 15 y 12 m The commence-ment date of the Federal offence results in effectively 6 m cumulation. 5. Theft [s 74 Crimes Act] 10 y 6 m 3 m 6. Possession of child pornography [s 70 Crimes Act] 10 y 12 m 6 m Related
summary
offence 6
Visually capturing genital region [s 41 Summary Offences Act 1966] 2 y 4 m 2 m Total Effective Sentence: 3 y, 5 m Non-Parole Period: 2 y, 6 m in respect of both Federal offences and State offences[3] Federal sentence to commence 8 March 2018 State sentences to commence 7 September 2018 (1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18: 1 day Sec 6AAA Sentencing Act 1991 declaration 4 y, 9 m with a non-parole period of 3 y and 6 m Other relevant orders:
· Pursuant to s 6F Sentencing Act 1991, declared a serious sexual offender on Charges 3 and 6
· Sex offender registration for life pursuant to s 34 Sex Offenders Registration Act 2004
· Forfeiture order made
· Disposal order made
[3]Following a mention on 21 March 2018, the judge confirmed that he intended that the non-parole period applied to both the Federal and State sentences.
Ground of Appeal
Finley now seeks leave to appeal against the sentence imposed on him on a single ground, namely:[4]
[4]For convenience, in what follows we refer simply to ‘the appeal’ (rather than the application for leave to appeal) and the proposed ground of appeal simply as ‘the ground of appeal’.
The individual sentence, order for cumulation, total effective sentence and non-parole period fixed are each manifestly excessive.
Particulars:
(a)The learned sentencing judge gave manifestly insufficient weight to the principle of totality;
(b)The sentences imposed are not consistent with current sentencing practices;
(c)The sentences imposed are more severe than necessary to achieve the purposes for which the sentences were imposed;
(d)The learned sentencing judge gave manifestly insufficient weight to the rehabilitation of the applicant;
(e)The learned sentencing judge gave manifestly insufficient weight to the applicant’s early plea of guilty, lack of prior convictions, and prior good character.
There is no ground of appeal alleging specific error by the judge.
The offending
Finley’s offending occurred over a 13 month period from January 2016 until February 2017. As Mr Sonnet, counsel for the Crown, emphasised at the hearing of the application for leave to appeal, this was a considerable period of time. The offending fell into three broad categories: the first category concerned acts involving a child with respect to whom he was in a relationship of trust (not his own child) (Charges 1 and 3); the second involved child exploitation material found on his computer and mobile phone (Charges 4 and 6) and the charge of theft (Charge 5) which related to a USB stick which contained images of unidentified school children; the third category related to ‘upskirting’ images taken by him in retail stores of multiple unidentified women (the summary charge) and of an unidentified child (Charge 2).
(1)Indecent act with a child and production of child pornography - Charges 1 and 3
Police discovered the offences against the child during their investigation for child exploitation materials, following the execution of a search warrant at Finley’s home on 15 February 2017. They found photos of the child on Finley’s laptop and mobile phone.
The first occasion on which images were taken was in the period 1 January 2016 to 31 March 2016. At this time the child was two years old, while Finley was 28. The first series of images showed Finley positioning the child on the couch into sexually explicit positions, culminating in an image of the child laying down on her stomach with her dress raised above her underwear line.
A second series of images showed the child on a couch and Finley lying behind her with his hand touching her vaginal area. This act is the basis of Charge 1 (indecent act with a child under 16). Judge Carmody noted that in Finley’s record of interview with police, while Finley made ready admissions with respect to other aspects of his offending, he initially denied ever having any physical contact with the child. Indeed, there is a marked shift in the first interview (conducted on 15 February 2017) when he denies any touching of the child. In the second interview (conducted on 13 March 2017), when the police put to him the allegation of indecent act of touching the child and taking a photograph of himself doing so, he answered ‘no comment’. This was clearly a matter the judge took into account in his assessment of the appropriate weight to be given to Finley’s co-operation and degree of genuine remorse.
The third set of images were taken in February 2017. At this stage the child was about three years old. These images show the child seated with her legs crossed on her bed with an iPad. The images focus on her groin area in a sexually explicit manner.
Finley’s actions in taking the three series of images forms the basis of the rolled-up charge, Charge 3 (production of child pornography). Judge Carmody was informed during the plea that none of the images was ‘uploaded’. It was emphasised by Finley’s counsel, Mr Kenny, that the images Finley took were not transmitted to others.
The judge described the conduct as a very serious example of sexual offending against a child, involving an abuse of ‘the trust of [a very young and vulnerable] child’.[5] Mr Sonnet also emphasised the vulnerability of the child. The judge found the acts to be a culmination of Finley ‘acting out on your perverted sexual fantasies that have been fuelled or developed over your use of child pornography.’[6]
[5]Sentencing reasons [53].
[6]Ibid.
(2) Child exploitation material and theft — Charges 4 and 6, and Charge 5
As a result of the search warrant executed on 15 February 2017, the Police seized computers, a data storage device and a mobile phone owned by Finley. A forensic analysis of those items revealed that Finley had used the internet for over a year to source, view and save child exploitation material on to storage devices using a number of alias email accounts linked to his personal email address. He had also participated online in a community of consumers of child exploitation material, including commenting on images and procuring and sending images to other users by email. This conduct forms the basis for the Commonwealth indictable offence, Charge 4 (using a carriage service for child pornography material).
The Police located 3,681 child exploitation images on a laptop and mobile phone that had been seized. Those images fell into the following categories under the Child Exploitation Material scale:
(a) A total of 3,520 Category 1 images were located depicting children between the ages of two and 15 years, with no sexual activity in sexually suggestive poses, or with explicit emphasis on the genital area.
(b) A total of 37 Category 2 images were located depicting children aged between two and 15 engaged in solo masturbation or non-penetrative sexual activity with another child.
(c) A total of 15 Category 3 images were located depicting children aged between two and 15 years engaged in non-penetrative sexual activity with adults, or an adult.
(d) A total of 80 Category 4 images were located depicting children aged between 18 months and 15 years engaged in penetrative activity with an adult male, including penile/vaginal penetration or penile in mouth penetration of a child.
(e) A total of 13 Category 5 images were located depicting children aged between five and 15 years engaged in bondage.
(f) A total of 16 Category 6 images were located depicting animation or drawings of children aged between four and 15 years engaged in sexual activities or sexual poses.
Finley’s possession of the images in Categories 1 to 6 forms the basis of Charge 6 (possession of child pornography).
A further 2,103 images of children aged between two and 15 years were located, and while not illegal, they did form part of a series of photos leading to the images in Categories 1 to 4.
The judge noted that Finley admitted using a carriage service to access child pornography, as well as admitting to commenting on such images to others online, and sending and receiving such images. He concluded that Finley was ‘actively engaged in the use of child pornography for your own sexual gratification.’[7] He said:
In cases of child pornography general deterrence and the protection of the community are paramount considerations in sentencing. This type of offending requires that your previous good character ... be given less weight. The objective seriousness of the offending by using the internet as a tool through which to exploit children, even if you did not directly procure the exploitation, is grave.[8]
[7]Ibid [55].
[8]Ibid [56].
The charge of theft (Charge 5) arises from Finley’s conduct in November 2016. While working as a cabinet-maker on renovation works at a primary school in Bendigo, Finley took a USB stick without finding out who the owner might be. The USB stick contained a number of images of unidentified school children apparently taken at a school camp. Finley took it home and inserted it into his laptop, selected and copied a number of images of young girls, and saved them onto his computer. Mr Kenny accepted that the subsequent use of the USB stick is an aggravating factor relevant to sentencing. When police executed the search warrant they found the USB stick still inserted into Finley’s laptop.
(3) ‘Upskirting’ offending — Summary offence and Charge 2
Charge 2 and the summary charge relate to a large number of images taken by Finley in what is colloquially known as ‘upskirting’. Finley followed multiple unidentified adult, female victims around shopping stores including Target and Chemist Warehouse in the Bendigo area. The images progress to clear depictions of the groin and anal region of unidentified adult women. The women appear unaware they are being photographed. The conduct in taking the images of the adult women is the basis for the summary charge (visually capturing anal/genital region).
Police also located a number of images of a young unidentified female victim, aged between about four and six years old. These images were taken in quick succession at the Target store. Several images progress to the point where they have been taken from near ground level, and depict the groin and/or anal region of the unidentified child. These images are sexually explicit in nature and are classified as Category 1 child exploitation material. The act of taking those images is the basis of Charge 2 (production of child pornography).
Judge Carmody found that Finley retained these images on electronic devices that could have allowed him to publish, disseminate or place them on websites for others to view, but this did not occur. He further accepted that there was no evidence of financial gain on Finley’s part and that his motivation was for his own sexual gratification.
Finley’s background and circumstances
At the time of the offending Finley was aged 28 to 29. He had no prior convictions and no outstanding matters pending.
Finley’s early life was troubled and marked by physical violence from his step-father, leading to him being evicted from the family home at the age of 14. He has two brothers, one of whom provided a written character reference in support of him on the plea.
Despite not completing his school education as a result of frequent moves by the family, Finley fended for himself after he left home and at the age of 16 obtained an apprenticeship as a cabinetmaker. He completed his apprenticeship and then worked in that industry consistently until he was sentenced. As Judge Carmody noted, Finley ‘had a deprived childhood but … managed to obtain a trade and worked to a very high standard as a cabinet maker.’[9]
[9]Ibid [41].
The judge referred to two of the character references relied on in the plea, one from a fellow worker, and another from a director of Finley’s employer, which described him as ‘a vibrant personality and a good worker’, both in his workmanship and in his guidance of fellow workers. He was regarded as a leader at his workplace. These indications suggested that there was a positive outlook for Finley’s future employment prospects, with Judge Carmody remarking to Finley:
A very successful work history and commendations from your employers and your fellow worker in the cabinet making industry, auger well for your return to productive employment upon your release from prison.[10]
[10]Ibid [60].
Turning to Finley’s personal life, the judge noted that Finley had three long-term relationships, with his current relationship being three to four years in duration. Finley had a child with his current partner in October 2017. Both his partner and her mother provided written character references in support of Finley on the plea, as did a friend. A further character reference was given by a close friend who described Finley as ‘loyal, respectful, honest kind hearted and genuine’.
The judge noted that Finley’s partner, their child and his partner’s mother were all financially dependent upon Finley and accepted that incarceration would cause great hardship to them. However, he found that
the hardship is not of an exceptional manner or degree which would justifiably call for the exercise of mercy by the sentencing court. The only appropriate sentence for this combination of offending is imprisonment. The overriding sentencing consideration is the protection of the community.[11]
[11]Ibid [66].
After Finley was arrested he cooperated with police and then pleaded guilty at the earliest opportunity. Judge Carmody accepted that the guilty plea had utilitarian value, as well as demonstrating, together with his general, but not total, cooperation with police, some remorse. Mr Kenny challenged the weight the judge gave to Finley’s cooperation and remorse. This is a matter to which we shall return.
The judge recorded that following being charged with the offences, Finley voluntarily sought treatment from a clinical psychologist in Bendigo and then specific sexual offender treatment at Central Melbourne Psychology. The clinical psychologist provided counselling for depression and post-traumatic stress disorder that she diagnosed as arising from the violence to which Finley had been subjected as a child.
The judge had before him a report dated 15 November 2017 provided by Patrick Newton, a clinical and forensic psychologist of Central Melbourne Psychology (‘the Newton report’). While Mr Newton observed Finley to have symptoms of anxiety and to be experiencing ‘preoccupied worry’, he did not diagnose him as suffering from post-traumatic stress disorder. Mr Newton’s diagnosis was of Persistent Depressive Disorder (Dysthymia), which he described as ‘a form of chronic relatively mild clinical depression’, in partial remission. Finley gave a history of using mainstream pornography since adolescence, with that use escalating during relationship problems with his former partner. He said he first saw the child exploitation material in the context of a ‘pop-up’ while looking at a mainstream site, which he later accessed when he was bored and lonely, and as a way to relieve stress. Mr Newton assessed Finley’s admitted offending as pointing to ‘unequivocally deviant sexuality’, and noted that his active online engagement with others, his progression from the virtual world to ‘upskirting’ activities and acts involving the child, showed an ‘intense and multifaceted’ engagement with child exploitation material and other deviant material. He diagnosed a Paedophilic Disorder, Non-exclusive Type, Sexually Attracted to Females.
In terms of the risk of recidivism, Mr Newton assessed Finley as falling into the Moderate-High Risk category. Mr Sonnet emphasised that there is no challenge to that assessment. Mr Newton indicated that with appropriate participation in treatment the risk should decrease in the medium to longer term. However, as the judge noted, Mr Newton expressed the following view:
Nevertheless, Mr Finley’s progress has been slow and his insight into his offending remains limited, his relapse-prevention planning is incomplete, and his skills to manage deviant thoughts and urges seem questionable. There is a clear need for him to participate in further treatment as soon as [practicable].[12]
[12]Ibid [59].
Judge Carmody accepted that Finley has paedophilic tendencies. He said:
You have given an explanation of ‘bored and lonely’ for these offences. On all the available evidence you have paedophilic tendencies and you have acted on them.[13]
[13]Ibid [41].
Because of the assessment in the Newton report, the judge described Finley’s prospects of rehabilitation as ‘guarded’. He said:
It is clear you need sex offender treatment programs to reduce your risk of reoffending. In terms of rehabilitation I assess your prospects as guarded due to the assessment of Mr Newton.[14]
[14]Ibid [60].
The judge acknowledged that Finley was to be sentenced as a serious sex offender on Charges 3 and 6 pursuant to s 6D of the Sentencing Act with the consequence that the protection of the community is paramount.[15] (We will return to this later). With respect to cumulation, he acknowledged that the individual sentences imposed on those charges would be served cumulatively, unless he ‘otherwise directed’, in accordance with s 6E. The judge determined that he was prepared to ‘otherwise direct’ to prevent full cumulation and he recognised the operation of the principle of totality when he said:
Section 6E of the Sentencing Act also requires that unless I otherwise direct, with respect to Charges 3 and 6 on the indictment, the sentences that I impose on you are to be served cumulatively. I note that the prosecution did not call for a disproportionate sentence for all the cumulation contemplated under s 6D and s 6E of the Sentencing Act, allowing for the matters which I have outlined in these reasons. In my view it is appropriate to impose only that degree of cumulation to which I subsequently refer, reflecting as it does several events of sexual offending by you. To do otherwise may produce a sentence which is not appropriate and would breach the principles of totality in sentencing.[16]
[15]Section 6D of the Sentencing Act does not apply to the Commonwealth offence.
[16]Sentencing reasons [65].
Manifest excess
As we noted earlier, the sole ground of appeal is manifest excess and there is no ground alleging specific error.
It was accepted by both Mr Kenny and Mr Sonnet that the ground of manifest excess is a very difficult ground on which to succeed. It will only succeed if the appellate court considers that the sentence is ‘unreasonable or plainly unjust’.[17] Redlich and Priest JJA explained in McPhee v The Queen[18] that there are considerable problems in making out the ground:
Every single human situation is unique, and the sentencing judge’s instinctive synthesis involve[s] a distillation of numerous individual factors into an appropriate head sentence and non-parole period. It must be remembered that the exercise of the sentencing discretion does not involve the application of a mathematical formula. Reasonable minds can, and do, differ as to their assessment of an appropriate sentence for criminal offences … In order for an argument of manifest excess to be successful, the excess must be ‘obvious, plain, apparent, easily perceived or understood and unmistakable. It must be so far outside the range of a reasonable discretionary judgment as to itself bespeak error’.[19]
[17]R v Pham (2015) 256 CLR 550, 568 [56] (Bell and Gageler JJ).
[18][2014] VSCA 156.
[19]Ibid [8] (emphasis added) citing Hanks v The Queen [2011] VSCA 7 [22] (Bongiorno JA, Redlich JA agreeing). See also Clarkson v The Queen (2011) 32 VR 361, 384 [89].
It is clear that the stringent threshold to establish manifest excess is not easily met.
Finley submits that the total effective sentence is manifestly too long and does not comply with the principle of totality.
Mr Kenny submitted that the total effective sentence is manifestly excessive due primarily to the insufficient weight the judge gave to Finley’s mitigating circumstances. He emphasised that Finley pleaded guilty at the earliest opportunity, had cooperated, and demonstrated remorse. He has had (and will have) the benefit of specific-offender treatment and has shown that he can achieve a family and work life of stability. He submitted that the judge over-emphasised the risk of re-offending which may well reduce over time. He also submitted that the judge had over-emphasised the need for general deterrence.
As mentioned, Mr Kenny also submitted that the sentence imposed did not give the full weight that was warranted to the high degree of cooperation given, the genuine remorse, and the ‘good’ prospects of rehabilitation the evidence demonstrated.
In particular, Mr Kenny submitted that the individual sentence on Charge 5 (theft) was manifestly excessive given that, had the charge been dealt with in the Magistrates’ Court in isolation, it would likely have received a much lesser sentence.
Mr Kenny also complained that the non-parole period is manifestly excessive while he accepted that there is no mathematical formula that can be applied. Overall, his submission was that the judge gave insufficient regard to the principle of totality and this is evident in the degree of cumulation he fixed.
In response, the Crown submits that the total effective sentence, the individual sentences, and the cumulation orders are not manifestly excessive as none is wholly outside the range of sentencing options that were available to the sentencing judge. The Crown points to the fact that five of the offences to which Finley pleaded guilty each carry a maximum penalty of 10 years’ imprisonment (Charges 1, 2, 3, 5 and 6), the maximum providing a yardstick against which an individual sentence is to be considered.[20] Moreover, the Commonwealth offence (Charge 4) carries a maximum of 15 years’ imprisonment.
[20]Markarian v The Queen (2006) 228 CLR 357, 372 [30]–[31].
The Crown further submits that the judge’s assessment of the nature and gravity of the offending was accurate and warranted severe punishment, the offending involving a young and vulnerable child with the associated production of child pornography involving three set of images of the child taken over a 13 month period (Charge 3). The child exploitation material (Charges 4 and 6) involved a large number of images collected, stored and saved. In this context the sentencing principles of public denunciation and general deterrence must assume considerable significance.
We agree. We do not consider that the judge gave too much emphasis to general deterrence. The principles that govern the sentencing of child pornography offenders focus upon the centrality of general deterrence in the recognition that the market that exists for the sexual exploitation of children is made worse by the online participation of the community of consumers of whom Finley was one. Finley’s commentary on images and procuring and sending images to other users by email actively contributed to the exploitation of children. Finley conceded that general deterrence is a paramount consideration in this context but it must also be recognised that it is because of the need for deterrence that only limited weight can be given to the previous good character of an offender, the lack of prior convictions or an early plea of guilty.
As Harper JA said in Director of Public Prosecutions (Cth) v D’Alessandro:[21]
[21](2010) 26 VR 477. Williams AJA agreed with Harper JA. Redlich JA agreed that the appeal should be allowed and, substantially for the reasons Harper JA gave, that an immediate custodial sentence must be imposed. However, he would have imposed a lesser sentence.
[T]here seems to be unanimous support across the jurisdictions for a number of propositions. First, that the problem of child pornography is an international one. Secondly, that the prevalence and ready availability of pornographic material involving children, particularly on the internet, demands that general deterrence must be a paramount consideration. Thirdly, 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. Fourthly, that those who make up that market cannot escape responsibility for such exploitation. Fifthly, that limited weight must be given to an offender’s prior good character. Sixthly, that a range of factors bear upon the objective seriousness of [these type of] offences... They include:
(a)the nature and content of the pornographic material — including the age of the children and the gravity of the sexual activity portrayed;
(b) the number of images or items of material possessed by the offender;
(c)whether the possession or importation is for the purpose of sale or further distribution;
(d) whether the offender will profit from the offence.[22]
[22]Ibid 483-4 [21] (citations omitted).
His Honour went on to emphasise the vulnerability of the children who are subjected to degradation and are unable to protect themselves, and the importance of demonstrating that child pornography will not be tolerated. He said:
[T]here are those who have such lack of empathy that they cannot assimilate a simple truth: that what they see is not merely a titillating picture, but the degradation of human beings too young to avoid the exploitation to which they are being subjected. … there is indeed something deeply inhuman in treating another human as the mere object by which one’s crudest and most selfish cravings are satisfied.[23]
[23]Ibid 484 [23].
Moreover, as mentioned, Finley, by reason of his convictions on Charges 1 and 2 (both of which are ‘sexual offences’), stood to be sentenced as a serious sexual offender on Charges 3 and 6.
Section 6D of the Sentencing Act determines that the principal purpose for which a sentence of imprisonment is imposed in the case of a serious offender is the protection of the community:
6D Factors relevant to length of prison sentence
If under section 5 the Supreme Court or the County Court in sentencing a serious offender for a relevant offence considers that a sentence of imprisonment is justified, the Court, in determining the length of that sentence —
(a)must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed ....[24]
[24] A ‘relevant offence’ is a sexual offence or a violent offence in the case of a serious sexual offender: Sentencing Act s 6B(3)(c). A ‘serious sexual offender’ is defined in s 6B(2) as follows: ‘Serious sexual offender means an offender (other than a young offender) —
In circumstances where the protection of the community is the dominant sentencing consideration it is to be expected that the sentence imposed will be severe to achieve that purpose and that considerations such as an offender’s remorse, or the rehabilitation of the offender (a consideration which Judge Carmody clearly took into account),[25] will be secondary. Furthermore, as Mr Sonnet emphasised, there was in this matter a need for specific deterrence given the assessment of the risk of re-offending.
[25]See [27] and [35] above.
We also consider that it was here clearly open for the judge to treat Finley’s prospects of rehabilitation as ‘guarded’ given Finley’s paedophilic tendencies and his willingness to act on those tendencies, as described by the Newton report. The cooperation he showed was also tempered by the early denials in respect of Charge 1 and the shift in the first interview to which we have referred. In those circumstances, the weight the judge gave to Finley’s otherwise positive outlook for his return to a supportive family and productive employment was, in our view, clearly appropriate and could not outweigh the serious implications of the Newton report. We also consider that, in the circumstances, it was appropriate for the judge to describe Finley as having ‘some’ remorse. This reflected Finley’s early plea of guilty but also appropriately took into account his limited insight.
It must also be recognised that, in the context of s 6D of the Sentencing Act, the principle of totality (that is, the need to ensure that an overall sentence is not excessive relative to the total criminality involved)[26] is almost inevitably moderated[27] and this was not seriously in contest.
[26]R H McL v The Queen (2000) 203 CLR 452, 476 [74].
[27]Matheas v The Queen [2017] VSCA 330.
In the circumstances, we do not consider that the total effective sentence imposed fails to reflect the appropriate weight which ought to be afforded to the principle of totality.
Insofar as Finley challenges the non-parole period as manifestly excessive, representing 73 per cent of the total effective sentence, this Court has repeatedly stated that ‘there is no “usual” or “normal” ratio between the non-parole period and the head sentence’.[28] The Crown conceded that the non-parole period is at ‘the higher end of the range’ but submitted this was justified given the findings relevant to the risk of re-offending. We consider that it was reasonably open, in all the circumstances, for the judge to order the non-parole period that he did, in particular because of the critical findings of Finley’s risk of re-offending identified in [59] and [60] of the judge’s sentencing reasons.
[28]Kumova v The Queen (2012) 37 VR 538, 541 [9].
Putting to one side for the moment the charge of theft, we consider, for the reasons we have given, that leave to appeal ought be refused as we do not consider that the submissions made on Finley’s behalf can succeed in getting over the high hurdle of the test for manifest excess.
With respect to the offence of theft, the Crown submits that while the sentence imposed on the theft charge might be seen as stern, it is still within the range of sentences that are open given the maximum of 10 years’ imprisonment. Mr Sonnet emphasised that the context and apparent motivation for the offence of theft was relevant for the purpose of sentencing. As mentioned, Mr Kenny conceded that the subsequent use of the USB stick was an aggravating factor and there was no specific error alleged. We agree that the offence should not be considered in isolation from its context.
Finley is nevertheless correct to submit that it was not alleged against him that he knew what images the USB stick contained at the time he stole the item. This consideration appears to make it reasonably arguable that the individual sentence imposed with respect to the offence of theft is very stern — perhaps manifestly excessive. However, even if this is so, we consider that leave to appeal should still be refused under s 280 of the Criminal Procedure Act 2009.
Section 280 of the Criminal Procedure Act empowers the Court of Appeal to refuse leave even where the Court considers that a proposed ground of appeal is reasonably arguable providing that it considers that there is no reasonable prospect that the Court would reduce the total effective sentence despite there being an error in the sentence first imposed.
Section 278 provides for a person convicted of a criminal offence to apply for leave to appeal against sentence to the Court of Appeal. Section 280 sets out how such an application is to be determined:
280 Determination of application for leave to appeal under section 278
(1)The Court of Appeal may refuse an application for leave to appeal under section 278 in relation to any ground of appeal if—
(a)there is no reasonable prospect that the Court of Appeal would impose a less severe sentence than the sentence first imposed; or
(b)there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence despite there being an error in the sentence first imposed.
Note
Subsection (3) empowers the Court of Appeal to correct a sentence if an application is refused in the circumstances referred to in subsection (1)(b).
(2)An application may be refused under subsection (1) even if the Court of Appeal considers that there may be a reasonably arguable ground of appeal.
(3)On refusing an application by reason of subsection (1)(b), the Court of Appeal may, if it considers it appropriate to do so—
(a)amend the sentence first imposed by substituting a less severe sentence; and
(b)make any other order that the Court considers ought be made.
In our view, even if leave to appeal were to be granted, the total effective sentence would remain undisturbed. We consider that there is no reasonable prospect that this Court would reduce the total effective sentence of three years and five months’ imprisonment.
Conclusion
Leave to appeal against sentence should be refused.
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(a) who has been convicted of 2 or more sexual offences for each of which he or she has been sentenced to a term of imprisonment or detention in a youth justice centre’.
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