Bayliss v R

[2013] VSCA 70

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0220

KEN ROSS BAYLISS
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	HARPER and COGHLAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 February 2013
DATE OF JUDGMENT:	3 April 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 70
JUDGMENT APPEALED FROM:	DPP v Bayliss (Unreported, County Court of Victoria, Judge Mason, 12 September 2012)

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CRIMINAL LAW – Sentence – Application for leave to appeal – Seven charges of using a carriage service to transmit material containing child pornography contrary to s 474.19 of the Criminal Code 1995 (Cth) – Plea of guilty – Sentenced to a total effective sentence of three years and six months’ imprisonment – Non-parole period of two years – Whether sentencing judge erred in finding the prospects of rehabilitation were low – Totality – Whether sentence manifestly excessive – Application refused – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M D Stanton	Lethbridges
For the Respondent	Mr L Crowley	Commonwealth Director of Public Prosecutions

HARPER JA
COGHLAN JA:

Introduction

1. On 26 March 2012, the applicant was committed for trial in the County Court, having pleaded guilty to seven charges of using a carriage service to transmit material containing child pornography. This is an offence under s 474.19 of the Criminal Code 1995 (Cth). On 28 May that year he was arraigned, and again pleaded guilty. Following a plea hearing which commenced that day and continued on the following day and on 24 August, the applicant was sentenced on 12 September 2012 as follows:

Charge	Offence	Maximum	Sentence	Cumulation
1	Using a carriage service to transmit child pornography (s 474.19 of the Criminal Code 1995 (Cth)) (1.6.2009 – 12.4.2010)	10 years	2 years, 6 months	Base
2	Using a carriage service to cause child pornography to be transmitted to oneself (s 474.19 of the Criminal Code 1995 (Cth)) (1.6.2009 – 12.4.2010)	10 years	2 years, 6 months	None (commence 12 September 2012)
3	Using a carriage service to transmit child pornography (s 474.19 of the Criminal Code 1995 (Cth)) (22.4.2010 – 6.6.2011)	15 years[1]	2 years, 6 months	None (commence 12 September 2012)
4	Using a carriage service to cause child pornography to be transmitted to oneself (s 474.19 of the Criminal Code 1995 (Cth)) (22.4.2010 – 6.6.2011)	15 years	2 years, 6 months	None (commence 12 September 2012)
5	Using a carriage service to solicit child pornography (s 474.19 of the Criminal Code 1995 (Cth)) (22.4.2010 – 10.5.2011)	15 years	2 years	4 months (commence 10 months after 12 September 2012)

[1]From 15 April 2010 the maximum penalty increased from 10 years to 15 years pursuant to s 21 of the Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 (Cth).

6	Using a carriage service to make child pornography available (s 474.19 of the Criminal Code 1995 (Cth)) (22.4.2010 – 16.5.2011)	15 years	2 years, 6 months	6 months (concurrent with sentence on charge 5 for first 2 years)
7	Using a carriage service to access child pornography (s 474.19 of the Criminal Code 1995 (Cth)) (6.6.2011)	15 years	1 year	2 months (commence 30 months after 12 September 2012)
Aggregate Sentence:		3 years, 6 months’ imprisonment
Non-Parole Period:		2 years
Pre-sentence Detention Declared:		3 days
6AAA Statement:		4 years, 4 months’ imprisonment with a NPP of 3 years
Other orders: Declared a registrable sex offender for life pursuant to the Sex Offenders Registration Act 2004 (Vic).

1. The applicant now seeks leave to appeal against the sentence on the following grounds:

Ground 1

The learned sentencing judge erred in finding that the applicant’s prospects of rehabilitation must be regarded as low.

Ground 2

The learned sentencing judge erred with regard to the application of the principle of totality, in particular with regard to the sentence imposed on Charge 7 and the order that the sentence should commence 30 months after the sentences imposed on Charges 1, 2, 3 and 4.

Ground 3

The learned sentencing judge erred in imposing sentences, orders for cumulation and a non-parole period that were manifestly excessive, in particular having regard to the applicant’s:

(i)      plea of guilty at the earliest opportunity;

(ii)     remorse;

(iii)     engagement in sex offender treatment for the first time;

(iv)     burden of imprisonment;  and

(v)diagnoses of both HIV and paraphilia, and the interrelationship between those two diagnoses and his offending conduct.

Ground 1 – Prospects of rehabilitation

1. The applicant is correct in his assertion that, in the view of the judge, the applicant’s prospects of rehabilitation ‘must be regarded as low.’[2]  The question is whether his Honour erred in coming to that conclusion.

   [2]Reasons for sentence, [58].

1. This was not the applicant’s first involvement with child pornography. In 2004, at the age of 31 (he was born on 21 December 1972), he was sentenced to eight months’ imprisonment to be served by way of an Intensive Corrections Order for the possession of child pornography contrary to s 71 of the Crimes Act 1958.  He was also placed on the sex offenders’ register for eight years from 19 August 2004. 

1. The period of offending covered by the charges the subject of this appeal was 1 June 2009 to 6 June 2011.  The applicant was then between 36 and 38 years old.  The conduct covered by the first four charges took the form of text conversations known as ‘chats’ during which the applicant transmitted and received the images described in the conversations.  Those images have not been recovered.  The chats, however, included:

extremely graphic depictions of sexual activity and abuse of young children as young as newborns up to those aged 15 or 16 years.  The vast majority related to children under ten years.[3]

[3]Ibid [12].

1. Those sexual acts involving children included their victimisation in horrific ways.  The graphic nature of the ‘depictions’ is sufficiently conveyed by mentioning only five of the 11 examples to which the judge referred in his reasons for sentence: violent gang-rape, vaginal and anal penetration, the deliberate infection of child victims with the HIV virus, cutting off body parts, and defecating into mouths.[4]

   [4]Ibid [14].

1. At the plea hearing on 28 May 2012, the sentencing judge heard oral evidence from Mr Patrick Newton, a forensic and clinical psychologist who, following his psychological evaluation of the applicant on 26 April 2012, prepared a report dated 21 May that year.  This was tendered on the applicant’s plea.  In giving his reasons for sentence on 12 September, his Honour referred to Mr Newton’s opinion that the applicant’s fantasies, which led to his engagement with violent, sadomasochistic and child pornographic material, ‘have become increasingly entrenched as part of your [the applicant’s] sexuality.’[5]  As his Honour further reminded the applicant, Mr Newton had diagnosed him as suffering from paraphilia and had ‘assessed your degree of risk of recidivism as at least in the moderate to high risk range.’[6]  The judge added that, although Mr Newton was prepared to pursue further treatment, the psychologist had given evidence that the applicant  ‘undoubtedly continue[s] to have a strong dynamic in [his] sexuality around issues of power and dominance which persist notwithstanding this prosecution and treatment so far.’[7] 

   [5]Ibid [43].

   [6]Ibid [44].

   [7]Ibid [45].

1. His Honour also had regard to a report of Mr Matthew Barth, a probationary psychologist and an associate of Mr Newton, with whom the applicant had engaged in 22 counselling sessions as part of a sex offender treatment program.  Although Mr Barth found an improved level of insight into the emotional triggers and factors that contributed towards the applicant’s offending, he was of the view (as his Honour noted) that, as a result of the applicant’s ‘entrenched psychological issues’, his progress in the program was limited.[8]

   [8]Ibid [47].

1. Another reason for the applicant’s slow progress was his failure to attend counselling sessions as regularly as was desirable.  His Honour accepted that this was due to the applicant’s ‘recurring medical issues.’  It was a very charitable conclusion, since by the time Mr Newton gave evidence on the plea (28 May 2012) the applicant had attended less than half the scheduled sessions.  According to Mr Newton:

Mr Barth and I have repeatedly discussed various strategies for engaging Mr Bayliss more actively in his treatment.  Mr Barth I know has implemented those actively in his treatment with him, but notwithstanding that, it’s still been the case that there has been perhaps a less deep engagement with the process than we would have liked.

1. When asked by the judge whether this indicated that the applicant suffered from cognitive distortion, Mr Newton replied:

Yes, your Honour, he undoubtedly continues to have a strong dynamic in his sexuality around issues of power and dominance, which persists notwithstanding this prosecution, notwithstanding our treatment of him, that is still a dominant part of his personality, his sexual adjustment and I suppose that persists.

1. This opinion is consistent with that expressed by Mr Newton in his report of 21 May 2012.  He there said, among other things:

Mr Bayliss’ obsessional recourse to pornography, the frankly deviant nature of the images he had recourse to, and the cognitive distortions inherent in his utilisation of them for masturbatory purposes, point to entrenched psychosexual pathology.[9]

[9]Report of Patrick Newton, 21 May 2012, p 9, [46(5)].

1. Another report to which his Honour had resort for the purposes of sentencing was written by Ms Alison Wickham, a senior psychologist with Corrections Victoria.  She interviewed the applicant on 4 July 2012.  Her report, which is dated 26 July 2012 was endorsed by Ms Elle Gianvanni, Senior Forensic Psychologist with Corrections Victoria.

1. According to the report, the applicant is suitable for participation in Corrections Victoria’s Sex Offender Program.  That conclusion must be taken into account in his favour when assessing his prospects of rehabilitation.  There is much else in the report, however, which points to the difficulties which the applicant faces before rehabilitation becomes a reality.

1. The applicant has a large, and largely deviant, sexual appetite.  When interviewed in July last year, he could not remember a day without sex or masturbation.  Although HIV positive, he was then continuing to practice unprotected sex.  He accessed pornographic images as a stimulant to masturbation despite his conviction in 2004.  He continued to seek and obtain such access even after a friend had urged him to seek counselling (a plea upon which he failed to act), and even after the police searched his home in 2008.  Nor did the prospect of prison cause him to desist, although he knew that this was where his viewing might lead him.  While he had some insight into his behaviour, he did not then have the strategies to self-regulate it.   Indeed, material which at one time provided him with sufficient stimulation increasingly turned into what he described as ‘vanilla’;  and so he resorted to measures and images which were more and more extreme.  Three-way sex, leather restraints, dildos and urination on the sexual partner were among the adopted means of stimulation.  In his reasons for sentence, his Honour told the applicant that ‘the fact that you frequently carried your fantasies into your own engagement in adult sexual activity significantly increases your risk of recidivism.’[10]  One’s knowledge of human nature gives credence to this conclusion.

   [10]Reasons for sentence, [45].

1. The applicant is not to be punished for anything other than criminal behaviour. As Mr Newton indicated in the passage quoted at [11] above, however, some examination of non-criminal sexual conduct is relevant when assessing the likelihood of the applicant’s rehabilitation as a user of a carriage service for the viewing and dissemination of child pornography. If psychosexual pathology is entrenched, its treatment must be more difficult than otherwise. And, according to the report of Ms Wickham and Ms Gianvanni, ‘[t]he chronicity, diversity and escalation of Mr Bayliss’ offending behaviour is relevant to his future risk of recidivism.’ The report continues:

[The applicant] states that he is now aware that every child is a victim, although expressed dismay that this is not enough to stop his behaviour.

Whilst Mr Bayliss verbally expresses pro-social aversion to the use of child pornography, his past role-playing of sexual acts including incestuous themes, teacher/student and child/adult sex, ongoing use of child/adult fantasy and his lack of help-seeking behaviour prior to this latest detection by police, indicate a discrepancy between his behaviour and his said thoughts.  It is recommended that this be further explored during treatment as this discrepancy may indicate attitudes that support or condone sexual violence.

Mr Bayliss demonstrated ... no insight during the interview as to the problematic nature of using ongoing fantasy regarding children and adults even in the absence of viewing actual material, or increasingly explicit material, although [he] did demonstrate insight that such images can come into his mind when viewing gay pornography.

...

Mr Bayliss appears to have deficits in coping.  Mr Bayliss appears to use avoidance or distraction methods of coping rather than addressing issues directly.  He reported that he tends to put on a brave face and act like he is coping when in fact he is not.  This is of particular relevance to his offending as it appears that during negative emotional periods, Mr Bayliss relies on sexual activity to cope. ... His lack of appropriate problem-focussed or emotion-focussed strategies for coping leave My Bayliss at continued vulnerability to offending.[11]  

[11]Report of Alison Wickham and Elle Gianvanni, 26 July 2012, p 11.

1. That offending was described by the judge as ‘at a very serious level.’[12]  His Honour acknowledged, immediately before coming to this conclusion, that only three images had been recovered by the police.  Nevertheless:

Whilst the depth of depravity ... of the images ... cannot be precisely ascertained ... their content can be inferred to a certain, but limited, extent from other known facts, such as the nature of the conversations in the ‘chats’, the file names, the nature of your dark sexual interests ... and the three images downloaded by the undercover operative.  One of those images was of a pre-pubescent male child being anally penetrated.[13]

[12]Reasons for sentence, [56].

[13]Ibid [55].

1. In his written case, the applicant points to his remorse.  His Honour took this into account, but did not find evidence of much of it:

The plea of guilty is itself indicative of some remorse, as are your expressions to your counsellors and Mr Bates.[14]  

[14]Ibid [57].

1. As at May 2012, Robert Bates (a retired project manager with the Victorian Department of Human Services) had been a friend of the applicant for two years.  In a letter dated 29 May 2012 and tendered during the hearing of the applicant’s plea as exhibit 5, Mr Bates wrote that the applicant ‘has expressed to me a clear understanding that his actions were wrong and is deeply remorseful, because of his understanding of the destructive nature of child pornography.’

1. The evidence of the counsellors was that the applicant had moments of remorse, including disgust at his behaviour.  But these were emotional and transient reactions following the release, at the conclusion of an episode of acute sexual arousal, of the emotions which gave rise to that arousal.  They were in the distant background when the sexual urge returned, as it constantly did.

1. As explained in Phillips,[15] if remorse is to be relied upon as a significant sentencing consideration, the evidence of it must demonstrate much more than regret at being caught.  It must also satisfy the sentencing judge that the offender recognises the wrongfulness of what has been done, is genuinely regretful for having done it (and not merely just for being caught) and is determined not only to do what can be done to right that wrong, but also to avoid a repetition of it. 

   [15]Phillips v The Queen [2012] VSCA 140.

1. Evidence of this kind is rare.  When it is forthcoming, the resultant discount in penalty will almost always be particularly significant, because it indicates to a degree otherwise generally unobtainable that the offender will not offend again (at least not in that way).  Specific deterrence will therefore not be an important sentencing factor.  Nor will the protection of the public. 

1. But for these very reasons, this evidence is generally only persuasive when given by the offender, with of course such other credible evidence as may be called.  Evidence based on hearsay, as evidence of remorse so often is, or evidence based upon the opinions of others without hard facts to support it, ought generally be given little credence. 

1. The applicant gave no evidence.  The evidence upon which he relies to establish that he is remorseful was based on hearsay, upon unconvincing opinion, and upon the applicant’s plea of guilty.  The latter is not of itself necessarily significant as showing remorse, because it may have been generated by nothing more than a desire to obtain the discount always given to such a plea for its utilitarian value, and because the prosecution’s possession of the transcripts of the ‘chats’ made conviction almost certain anyway.  It certainly could not of itself sustain a conclusion that the applicant was and is genuinely remorseful in the sense described above. 

1. In the circumstances of this case, his Honour was entirely justified in giving little weight to suggestions that remorse was more than a minor mitigating factor.

1. In his written case, the applicant argued that his ‘previous conviction should not have been used ... to buttress the conclusion that the applicant’s prospects of rehabilitation were low in circumstances where he did not receive specific treatment as part of the intensive corrections order.’[16]  But that is to illegitimately transfer responsibility from the shoulders of the applicant, where it belongs, to another entity, where it does not.  The ‘suspicion’ of Dr Lester Walton, a consultant psychiatrist, was that, following an examination of the applicant on 24 June 2004, he fell ‘into a reasonably favourable category specifically in relation to recidivism.’[17]  We now know that Dr Walton’s suspicion was a long way off the mark.  The applicant proved himself to be a recidivist.  And he not only offended again, but did so when fully aware that what he was doing was unlawful, when mindful of the risks of being caught, and while encouraging others to join him in his criminality.

   [16]Applicant’s written case, [4.2].

   [17]Report of Dr Lester Walton, 5 July 2004, p 5, [5].

1. Dr Walton also doubted that the applicant’s inclusion in a sex offenders’ treatment program ‘is actually necessary’.[18]  The consequence was that the applicant was not included in any such program.  But that is no excuse for the applicant’s failure to seek treatment when he was confronted by the urge to offend again.  He knew treatment was available.  He made the decision to avoid it.  The responsibility was his.  It is wrong for him to try to shift it onto other shoulders.

   [18]Ibid [3].

1. The applicant submitted that the finding of the judge that his prospects of rehabilitation were low was a finding adverse to him.  Accordingly, the submission continued, ‘his Honour should not have been satisfied to the requisite standard of beyond reasonable doubt’ that those prospects were low.

1. We disagree.  It was for the applicant to prove on the balance of probabilities that his prospects of rehabilitation were sufficiently good for that to be taken into account in his favour when arriving at an appropriate sentence.  All his Honour did was to decide that the applicant had not succeeded in demonstrating, to that standard, that the applicant’s prospects of rehabilitation were such that they should be a significant factor in mitigation.  This decision was justified.  His Honour did not go on to hold that the applicant’s prospects of rehabilitation were a negative factor, and thus went to aggravate his criminality.  It is true that no such holding would have been open unless the judge was satisfied beyond reasonable doubt of its correctness.  But, given his Honour’s finding, the point is of no present relevance.

1. We would not grant leave to appeal on ground 1.

Ground 2 – The principle of totality

1. The argument under this ground is that:

The applicant’s offending was constituted by a continuing course of conduct.  Count 7 was constituted by the applicant accessing, on 6 June 2011, child pornography material on a website in the form of five highly explicit written stories.  There is no doubt that the stories reflect the highest levels of depravity.[19]

[19]Applicant’s written case, [4.9].

1. Count 7 differed from the other counts in that the offending material did not include images of children being sexually assaulted.  Depraved as they were, no child was victimised by the telling of the stories the subject of this count.  Consistently with this, his Honour imposed a sentence of only one year’s imprisonment, although the maximum sentence was 15 years’ imprisonment – the same as for counts 3-6 (counts 1 and 2 covering a period before the maximum term of imprisonment was increased from ten to 15 years).  Moreover, the period of cumulation imposed in respect of count 7 was only two months.

1. In these circumstances, there has been in our opinion no infringement of the principle of totality.   We would therefore refuse leave to appeal on ground 2.

Ground 3 – Manifest excess

1. The applicant submits that his individual sentences, the orders for cumulation and the non-parole period were all manifestly excessive, especially when his early plea of guilty, his remorse, his engagement with sex offender treatment for the first time, the burden of imprisonment and his diagnosis of HIV and paraphilia are taken into account.  The latter are, he submits, relevant to both his moral culpability and the special hardship which imprisonment will impose upon him.

1. All these factors, save perhaps the applicant’s engagement with treatment for the first time, were explicitly taken into account by his Honour.  The judge, indeed, was generous in his consideration of the guilty plea, which was entered at the earliest opportunity:  he noted that there was no contested committal, and that ‘what could have been a protracted trial on what inferences could have been drawn from various labels to files’ was also avoided.[20]  His Honour also noted that the plea ‘was indicative of some remorse’, and referred as well to the applicant’s remorse as expressed to Mr Bates, Mr Newton, Mr Barth and Ms Wickham.  He accepted that the applicant’s personality disorder impaired his ability to make rational choices; that his ill-health made him ‘more vulnerable to express [his] paraphilic disorder’;[21] that imprisonment would be more difficult for the applicant than for someone in normal health;  and that the applicant has ‘genuinely sought and persisted with treatment ... since being charged.’[22]

   [20]Reasons for sentence, [57].

   [21]Ibid.

   [22]Ibid.

1. We have dealt with the plea of guilty, the issue of remorse, and the applicant’s failure to engage with treatment on the resumption of his offending in 2009.  None are in our opinion mitigating factors of significance.  The applicant will undoubtedly suffer hardship in prison which those in normal health will not, and his health did affect his judgment – while also hampering his prospects of rehabilitation.  For this reason, only the issue of hardship is a significant mitigating factor.

1. But it is not sufficient to support the conclusion that the application for leave to appeal should succeed.  This ground is made out only if the sentence is clearly beyond range.  In our opinion, that is not true of any of these sentences.  We would also refuse leave to appeal on ground 3.

Conclusion

1. The result is that none of the grounds upon which the applicant relies is made out.  The application for leave to appeal must be refused. 

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