Burbridge v R

[2016] NSWCCA 128

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Burbridge v R [2016] NSWCCA 128
Hearing dates:	6 November 2015
Date of orders:	01 July 2016
Decision date:	01 July 2016
Before:	Macfarlan JA at [1]; Rothman J at [5]; Bellew J at [50]
Decision:	(1)   Leave to appeal granted;  (2)   Appeal dismissed.
Catchwords:	CRIMINAL LAW – appeal against sentence – child pornography offences – manifest excess – totality – interaction of Commonwealth and State sentencing regimes – no error identifiable or manifest – appeal dismissed.
Legislation Cited:	Crime (Sentencing Procedure) Act 1999 (NSW) Crimes Act 1900 (NSW) Crimes Act 1914 (Cth) Criminal Code Act 1995 (Cth)
Cases Cited:	AB v The Queen [1999] HCA 46; (1999) 148 CLR 111 Assafiri v R [2007] NSWCCA 159 Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Fitzgerald v R [2015] NSWCCA 266 Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Payda v R [2013] NSWCCA 109 R v De Leeuw [2015] NSWCCA 183 R v Linardon [2014] NSWCCA 247 R v Martin [2014] NSWCCA 283 R v Porte [2015] NSWCCA 174 Wong and Leung v The Queen [2001] HCA 64; (2001) 207 CLR 584
Category:	Principal judgment
Parties:	Tristan David Burbridge (Applicant) Regina (Respondent)
Representation:	Counsel: A Evers (Applicant) P McGuire SC (Respondent)     Solicitors: John R De Mattia & Co (Applicant) Commonwealth Director of Public Prosecutions (Respondent)
File Number(s):	2013/149722 & 2014/53137
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 27 August 2014 Before: Hanley DCJ File Number(s): 2013/149722 & 2014/53137

Judgment

1. MACFARLAN JA: I agree with the orders proposed by Rothman J and with his Honour’s reasons. I add the following observations.

2. I emphasise the following as particularly relevant to the correctness of his Honour’s conclusion, with which I agree, that the sentences imposed upon the applicant in this case are not manifestly excessive:

1. In addition to receiving some 129 emails attaching 360 files containing child pornography material, the applicant sent some 41 emails attaching 213 files containing such material. Further he admitted to officers executing a search warrant at the premises at which he resided that he had forwarded child pornographic material to other people via email over 100 times.

2. Although the applicant received the benefit of a favourable finding by the sentencing judge that there was no evidence before him that the applicant “acted with others, or was involved in any collaborative network, of like-minded persons”, it is clear from the foregoing that the applicant was involved to a significant extent in disseminating child pornography materials to others. He was thus not a passive acquisitor of material but was actively involved in its distribution.

3. The applicant was a registered user of a website that published stories about child abuse. A story that he wrote and had published on the website was classified as falling within category 4 on the Child Exploitation Tracking System (“CETS”) scale, this being a category concerned with penetrative sexual activity between children, or adults and children. This conduct had a tendency to assist in generating demand for this type of material.

4. Overall, the sentencing judge found (at p 9) that the applicant “produced, assessed and transmitted or possessed 1,854 files of child pornography or child abuse material. That material depicted approximately 300 different children aged from about 18 months old to 14 years old”.

5. One of the applicant’s offences was committed whilst he was on bail pending the hearing of the charges for his other offences.

6. The maximum penalty for both the Commonwealth offences of which the applicant was convicted was 15 years imprisonment. That for the State offences was 10 years imprisonment. The former were increased from 10 years to 15 years in 2010 and the latter from 5 years to 10 years in 2008. These increases are indications of the seriousness with which the legislatures regard the offences in question.

3. The facts in cases in this field (as in others) will inevitably differ, sometimes markedly, making comparisons difficult. Nevertheless, it is appropriate to note that the sentences imposed in this case are by no means outside the range of sentences imposed by this Court in a number of recent child pornography and abuse cases when it has been necessary to resentence following a successful Crown appeal: in R v Linardon [2014] NSWCCA 247, the Court imposed a total term of imprisonment of 5 years with a minimum term of 3 years (although the offences included one of indecent communication to a child); in R v Martin [2014] NSWCCA 283, the Court imposed a total term of imprisonment of 5 years 6 months, with a minimum term of 3 years; in R v Porte [2015] NSWCCA 174, the Court imposed a total term of imprisonment of 2 years and 9 months, with a minimum term of 1 year and 6 months; in R v De Leeuw [2015] NSWCCA 183, the Court imposed a total term of imprisonment of 3 years with a minimum term of 1 year and 9 months.

4. As the resentencing in these cases required this Court to impose sentences which it regarded as appropriate in all the circumstances, the sentences in question should not be treated as the highest sentences referable to the facts of those cases that would have withstood an appeal on the grounds of manifest excess if imposed by a lower court. As made clear in Rothman J’s judgment, the question in the present case is not whether the sentences imposed in the District Court are those which this Court would have imposed if called upon to sentence or resentence but whether any of the sentences or their totality is manifestly excessive. For the reasons above as well as those given by Rothman J, I do not consider this to be the case.

5. ROTHMAN J: Tristan David Burbridge, the applicant, seeks leave to appeal against the sentence imposed on him in the District Court after a plea of guilty to five (5) charges.

6. The applicant was charged and had a conviction recorded for the following counts:

1. Count 1 - use a carriage service to access child pornography material, contrary to s 474.19(1)(a)(i) of the Criminal Code Act 1995 (Cth) (“the Code”), which carries a maximum penalty of 15 years’ imprisonment and for which the Court below imposed a head sentence of 18 months’ imprisonment;

2. Count 2 – use a carriage service to transmit child pornography material, contrary to s 474.19(1)(a)(iii) of the Code, which carries a maximum penalty of 15 years’ imprisonment and for which the Court below imposed a head sentence of 18 months’ imprisonment;

3. Count 3 – produce child abuse material contrary to s 91H(2) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 10 years’ imprisonment and for which the Court below imposed a fixed term of imprisonment of 6 months;

4. Counts 4 and 5 – possessing child abuse material, contrary to s 91H(2) of the Crimes Act for which the maximum penalty is 10 years’ imprisonment and for which the Court below imposed a fixed term of imprisonment of 18 months and 12 months respectively.

7. Pursuant to the provision of s 19AC of the Crimes Act 1914 (Cth) (“the Commonwealth Crimes Act”), the sentencing judge issued a single recognizance release order for the Commonwealth offences, being a recognizance release order, fixing 9 months as the mandatory period of imprisonment before release, commencing at the same time as the first Commonwealth offence.

8. The overall sentence for all State and Commonwealth offences, imposed by the court below, was described in the judge’s remarks as 4 years’ imprisonment, with the time in custody to be served being 2 years and 3 months. This was sought to be achieved by commencing the sentences for Counts 3, 4 and 5 at 23 June 2014, 23 September 2014 and 23 December 2014 respectively. Each of those sentences expired on 22 December 2014, 22 September 2015 and 22 June 2016 respectively. The two Commonwealth sentences commence on 23 December 2015 and 23 December 2016 respectively.

9. The grounds of appeal are manifest excess and failure to apply the principle of totality appropriately, expressed in the following manner:

“1. The sentence is manifestly excessive;

2. His Honour erred in the extent to which the various sentences were accumulated.”

10. As can be seen from the recitation of the offences and sentences, including the commencement dates and conclusion dates, the learned sentencing judge commenced the term for these offences on 23 June 2014 and commenced the last sentence (a federal offence for which an 18 month term of imprisonment was imposed) on 23 December 2016. As a consequence the overall head sentence concludes on 22 June 2018 (i.e. 4 years’ imprisonment) and the overall mandatory period of imprisonment (2 years and 3 months) concludes on 22 September 2016 (i.e. prior to the commencement of the final sentence).

11. The provisions of s 16E of the Commonwealth Crimes Act apply the law of NSW relating to the commencement of sentences and the non-parole periods to the sentencing in NSW for a federal offence. It would seem that the provisions of s 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW) apply to the commencement of any sentence imposed for a federal offence: Payda v R [2013] NSWCCA 109 at [50]-[60] and see Assafiri v R [2007] NSWCCA 159 at [11].

12. The provisions of s 47(2), s 47(3) and s 47(4) of the Crimes (Sentencing Procedure) Act are in the following terms:

“47    Commencement of sentence

[…]

(2)    A court may direct that a sentence of imprisonment:

(a)    is taken to have commenced on a day occurring before the day on which the sentence is imposed, or

(b)    commences on a day occurring after the day on which the sentence is imposed, but only if the sentence is to be served consecutively (or partly concurrently and partly consecutively) with some other sentence of imprisonment.

(3)    In deciding whether or not to make a direction under subsection (2)(a) with respect to a sentence of imprisonment, and in deciding the day on which the sentence is taken to have commenced, the court must take into account any time for which the offender has been held in custody in relation to the offence or, in the case of an aggregate sentence of imprisonment, any of the offences to which the sentence relates.

(4)    The day specified in a direction under subsection (2)(b) must not be later than the day following the earliest day on which it appears (on the basis of the information currently available to the court) that the offender:

(a)    will become entitled to be released from custody, or

(b)    will become eligible to be released on parole,

having regard to any other sentence of imprisonment to which the offender is subject.”

13. Under the State legislation a sentence of imprisonment cannot be imposed so as to commence at a date later than the day of sentence, unless it is to commence no later than the earliest day on which the applicant “will become eligible to be released on parole” for any other sentence. If an offender were released as a result of a recognizance release, is the offender on “parole” within the meaning of the Crimes (Sentencing Procedure) Act? And, if so, is the restriction in s 47(4) of the Crimes (Sentencing Procedure) Act enacted as federal legislation, given the pointed absence of such a restriction in s 19 of the Commonwealth Crimes Act?

14. Furthermore, even if a sentence of imprisonment were not prohibited by legislation from commencing in the future after an offender’s release on conditional liberty, ought it be done in other than exceptional circumstances? Does such a practice achieve the goals of transparency in sentencing and allow the prisoner and the public to understand the process?

15. None of the foregoing questions have been raised by the parties in this appeal. Rather the appeal, understandably, concentrates on the effect of the overall sentence imposed and its alleged excess.

16. Added to the foregoing complications is the operation of s 19AJ of the Commonwealth Crimes Act, which limits the operation of the provisions relating to the fixing of a single recognizance release order (or non-parole period) to Commonwealth offences and not to a combination of Commonwealth and State offences. In the structure of the sentences, the commencement of the recognizance release order is at the conclusion of a period that commences before any Commonwealth offence. Again, this is not a matter raised in the appeal. Nor could it be, because formally the mandatory imprisonment period for a Commonwealth offence starts when the first of them commences and has a 9 month duration.

Facts

17. Before dealing with the grounds of appeal, it is appropriate to summarise the facts that have given rise to the offences and the Remarks on Sentence. The facts may be stated briefly.

18. Following the monitoring of a website that publishes child abuse material, the Australian Federal Police (“AFP”) identified the applicant as a visitor to, or user of, the site.

19. On 14 May 2013, the AFP executed a search warrant at the applicant’s residence and conducted preliminary investigations of electronic devices. The AFP officers identified a laptop computer containing problematic images and videos.

20. The applicant admitted to the AFP officers that he had created an account with a child abuse website and had written a paedophilic story (Count 3); that he received emails containing paedophilic material (360 files) (Count 1); that he sent child pornography to others by email (41 emails with 213 files) (Count 2); and that he stored paedophilic material on his computer and USB drives (1,122 items) (Count 4).

21. The applicant was charged with Counts 1-4 and, on 11 August 2013, granted conditional bail. One of the bail conditions was that the applicant not use or obtain access to the internet.

22. On 19 February 2014, NSW police officers conducted a random check to ensure compliance with the bail conditions and uncovered another laptop containing paedophilic material (190 files) (Count 5). This conduct occurred, as is obvious, while the applicant was on conditional liberty.

23. The applicant filed a Form 1, List of Additional Charges, containing one offence, being the possession of a prohibited drug (cannabis) to be taken into account in sentencing for Count 4.

Remarks on Sentence

24. The sentencing judge held that the following matters were particularly relevant in assessing the seriousness of the offences generally: actual children were used in the material; the age of the children; the gravity of the acts performed and depicted; the depiction of over 300 different children; material was in the applicant’s possession primarily for his own purposes and, in relation to one of the offences, for non-commercial distribution; no sophisticated degree of planning; no collaboration with other persons; no risk that the material would be acquired by vulnerable persons; no risk that the material would be seen by persons susceptible of acting or being coerced to act in the manner depicted; and the material would be seen by persons with similar interests to the applicant. The offence was held to be below mid-range in objective seriousness.

25. General deterrence was said to be of paramount importance and the offences, for that reason amongst others, were appropriate for a custodial sentence. The sentencing judge accepted that the offences formed part of a single course of conduct and could not be regarded as spontaneous or impulsive.

26. The vulnerability and number of victims was not a factor the sentencing judge considered separately, as he had taken them into account in assessing the objective seriousness more generally.

27. In considering subjective factors, the judge noted that the applicant suffered severe abuse and neglect as a child, although more recently his grandparents had provided him with a stable home. The sentencing judge referred to the report of Dr Furst, tendered by defence counsel, which concluded that the applicant developed paedophilic behaviour, in part, as a means of coping with loneliness and emotional distress and otherwise for sexual arousal.

28. The applicant had no prior convictions and was a person of previous good character. While taking those factors into account, the sentencing judge commented that previous good character was to be given less weight in offences of this kind. Of course, as earlier stated, Count 5 occurred at a time when the applicant was on bail for the other counts, which qualifies the good character factor and the learned judge took that into account as an aggravating factor because of the need for specific deterrence.

29. In further mitigation, the sentencing judge considered and took account of the applicant’s plea at the earliest opportunity and provided a 25% reduction for its utilitarian value for all offences and also took account of the applicant’s remorse and assistance in the investigation of the offences.

30. The sentencing judge, taking into account the voluntary early intervention by psychologists, the two pre-sentence reports identifying programmes that may be available (one in particular), considered there were sound prospects for rehabilitation and that the risk of re-offending was medium.

31. Lastly, the learned judge took account of the applicant’s exploitation of the anonymity of the internet to share child pornography with others and considered that each offence was to some extent distinct and required a degree of accumulation.

Submissions and Consideration

32. The applicant submits that the sentences are manifestly excessive and the degree of accumulation too severe in that it does not adequately take totality into account. The question of whether a sentence is excessive (manifestly or otherwise) is a conclusion dependent on the outcome.

33. Manifest error occurs when a sentence is excessive (or lenient) to an extent that there must have been error of principle or the misapplication of principle, even though none can be identified.

34. It is not suggested that any finding of fact is wrong or that the judge relied on any mistaken view of the facts. Nor is it said that the judge failed to rely on any principle or mistook any principle. In other words, the applicant relies on manifest error.

35. In order to do so, the applicant must show that the sentencing discretion miscarried, resulting in a sentence that is beyond the range of sentences that could be justly imposed for the offence and taking account of the subjective circumstances of the offender. In order for this Court to intervene, it is not sufficient that one or all of us may have sentenced differently or less severely or given less or more weight to one or more factors: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 at [22], [53]; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321; Wong and Leung v The Queen [2001] HCA 64; (2001) 207 CLR 584; Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15].

36. In Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25] Gleeson CJ, Gummow and Callinan JJ said:

“As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as ‘manifest excess’, or in a prosecution appeal, as ‘manifest inadequacy’.” [Citations omitted.]

37. In Kentwell v the Queen [2014] HCA 37; (2014) 252 CLR 601, the plurality judgment confirmed the foregoing approach at [35], where the High Court said:

“In the case of specific error, the appellate court’s power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed. By contrast, absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.” (per French CJ, Hayne, Bell and Keane JJ; see also Gageler J at [42] and Hayne J in AB v The Queen [1999] HCA 46; (1999) 148 CLR 111 at 160 [150]).

38. The applicant relies on the conclusion of the sentencing judge that the offence is below mid-range; the overlapping nature of the offences (particularly “accessing” and “possessing” child abuse material); the lack of prior offences; the guilty plea; the positive prospects of rehabilitation and the applicant’s recent improvement in personal circumstances.

39. Reliance was also placed on cases that were said to be comparable and on statistics. A court, particularly at appellate level, must be very cautious of using statistics, or even (although to a lesser extent) comparable cases. Each offence and offender is unique. The legislative guidepost is the maximum sentence and, if one exists, any standard non-parole period.

40. Each of the factors relied upon by the applicant were matters that the sentencing judge considered. The offences were serious; the child pornography fell into the higher categories of depravity and there was a significant amount of it.

41. There is a difference in seriousness between gaining access and possessing child pornography. A person may gain access once and in some cases it may be a prurient but experimental interest. If material is downloaded and possessed, there is greater and easier access and generally it discloses more continuing and greater interest. They are distinct offences, which, in these charges, relate to different material.

42. Further a study of the comparable cases discloses head sentences that vary significantly and range between 18 months’ and 5 years’ imprisonment: R v Linardon [2014] NSWCCA 247; R v Porte [2015] NSWCCA 174; R v De Leeuw [2015] NSWCCA 183; and Fitzgerald v R [2015] NSWCCA 266.

43. General deterrence is a most significant factor in offences of this kind and the criminal conduct goes beyond access and viewing for personal use to the production and distribution of child pornography and involves a large number of children and large amounts of material.

44. No individual sentence involves manifest excess and the overall sentence is also within range. The submissions of accumulation were, for obvious reasons, repetitive of the submissions on manifest excess.

45. The complaint about fixing sentences for the State offences to operate first and then accumulating the Commonwealth sentences is wholly without merit. It is an appropriate method of overcoming some of the complexities created by the interaction of the State and Commonwealth sentencing regimes, made more complex by the casuistry in the Commonwealth Crimes Act.

46. As for the questions posed earlier in these reasons, as stated, they have not been raised by the parties. The overall sentence is appropriate and within range.

47. Any difficulty associated with commencing a Commonwealth recognizance release order before the commencement of a sentence for a term of imprisonment to which the release order relates is not expressly prohibited by s 47(4) of the Crimes (Sentencing Procedure) Act as the prohibition therein deals with parole, which in the Commonwealth legislation is a different concept.

48. In any event, the issue could easily have been resolved by fixing an aggregate sentence for the two Commonwealth offences. It is unnecessary to deal further with the issues.

49. I propose the following orders:

1. Leave to appeal granted;

2. Appeal dismissed.

50. BELLEW J: I agree with Rothman J. I also agree with the additional observations of Macfarlan JA.

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Decision last updated: 01 July 2016