Cargnello v Director of Public Prosecutions (Cth) - [2012] NSWCCA 162

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162
Hearing dates: 28 June 2012
Decision date: 03 August 2012
Before: Basten JA at [1];
Price J at [99];
S G Campbell J at [100]
Decision:
(1) Dismiss the appeal against conviction in respect of counts 8-11.
(2) Refuse leave to appeal against conviction on counts 1-7 and 12.
(3) Grant leave to appeal against the sentences imposed in respect of counts 8-11.
(4) Allow the appeal in respect of the sentences on counts 8-11; quash the sentences imposed in the District Court and re-sentence the appellant to the following terms:
(a) with respect to count 8, a term of imprisonment for three years commencing on 8 March 2011 and terminating on 7 March 2014;
(b) in respect of count 9, a term of three years imprisonment commencing on 8 March 2012 and terminating on 7 March 2015;
(c) with respect to count 10, a term of imprisonment of three months commencing on 8 March 2013 and terminating on 7 June 2013;
(d) on count 11, a term of imprisonment of three years commencing on 8 March 2013 and terminating on 7 March 2016.
(5) In respect of the sentences imposed in the District Court on counts 1-7 and 12, and the further sentences imposed by these orders on counts 8-11, confirm the non-parole period imposed in the District Court, being four years commencing on 8 September 2009 and expiring on 7 September 2013.
(6) The earliest date on which the appellant is eligible for conditional release is therefore 7 September 2013.

Catchwords:
CRIMINAL LAW - appeal - conviction - encouragement of sexual intercourse with a child under 16 years of age outside Australia - whether person encouraged must be Australian citizen or resident - discussion of XYZ v The Commonwealth [2006] HCA 25; 227 CLR 532 - Crimes Act 1914 (Cth), ss 50AD, 50BA and 50DB

CRIMINAL LAW - appeal - conviction - importation of child pornography; use of internet to access child pornography - defendant alleged that he did not have access to the computer at the time of the offence - whether trial judge erred in refusing to direct jury to acquit if evidence might reasonably have been true - whether miscarriage of justice in the circumstances of the case

CRIMINAL LAW - appeal - sentence - encouragement of sexual intercourse with a child under 16 years of age outside Australia - whether sentence manifestly excessive - whether offending more serious when encouraged conduct occurred - Crimes Act 1914 (Cth), ss 50BA and 50DB

CRIMINAL LAW - appeal - sentence - extra-curial punishment - value of appellant's business declined after arrest - whether allowance should be made for consequences common to all custodial sentences - whether greater allowance should be made for wealthy or well-known offenders - whether distinction should be made between consequences for offender and for associates

CRIMINAL LAW - appeal - sentence - sentencing for Commonwealth offences - offences involved overlapping elements of criminality - sentencing judge imposed separate concurrent identical sentences for each offence - whether offender sentenced more than once for common elements - discussion of Pearce v The Queen [1998] HCA 57; 194 CLR 610 - Crimes Act 1914 (Cth), s 19

CRIMINAL LAW - procedure - application to split closing address - prosecutor not consenting - whether refusal led to miscarriage
EVIDENCE - prosecution relied on tendency evidence without giving notice - whether evidence also relevant to circumstantial case in relation to another offence - whether necessary to distinguish circumstantial evidence from tendency evidence - whether direction could have assisted jury - whether leave should be granted to rely on ground not objected to at trial - Evidence Act 1995 (NSW), s 97; Criminal Appeal Rules (NSW), r 4
Legislation Cited: Acts Interpretation Act 1901 (Cth), s 13
Constitution, s 51 (xxix)
Crimes Act 1914 (Cth), ss 5, 6, 7A, 16A, 19, 50AA, 50AD, 50BA, 50BC, 50CA, 50CB, 50DA, 50DB; Pt IA; Divs 1, 2, 3, Pt IIIA
Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 (Cth)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A
Criminal Appeal Act 1912 (NSW), s 5
Criminal Code Act 1995 (Cth), s 474.19
Criminal Appeal Rules, r 4
Customs Act 1901 (Cth)
Evidence Act 1995 (NSW), s 97
Judiciary Act 1903 (Cth), s 68
Cases Cited: Beckwith v The Queen [1976] HCA 55; 135 CLR 569
Director of Public Prosecutions v Hills (No 8) [2010] VSC 596
Einfeld v The Queen [2010] NSWCCA 87; 200 A Crim R 1
Johnson v The Queen [2004] HCA 15; 78 ALJR 616
Kaye v The Queen [2004] WASCA 227
KRM v The Queen [2001] HCA 11; 206 CLR 221
Pearce v The Queen [1998] HCA 57; 194 CLR 610
Porter v The Queen [2008] NSWCCA 145
R v Gent [2005] NSWCCA 370; 162 A Crim R 29
R v Hammoud [2000] NSWCCA 540
R v Knight [2005] NSWCCA 253; 155 A Crim R 252
R v Lee [2000] WASCA 73; 112 A Crim R 169
R v Merrin [2007] NSWCCA 255; 174 A Crim R 100
R v Pearson [2005] NSWCCA 116
R v Percival [2001] NSWCCA 429
R v Ruppert (unrep, County Court of Victoria, 19 August 1998)
R v Van Der Zyden [2012] QCA 89
R v Wicks [2005] NSWCCA 409
Toben v Jones [2003] FCAFC 137; 199 ALR 1
XYZ v The Commonwealth [2006] HCA 25; 227 CLR 532
Category: Principal judgment
Parties: John Eric Cargnello (Appellant)
Director of Public Prosecutions (Cth) (Respondent)
Representation:
Counsel:

M Thangaraj SC/P D Lange
T A Game SC/M J Johnston (Respondent)
Solicitors:
Watsons Solicitors (Appellant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): CCA 2007/16067
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2009-12-21 00:00:00

Before:

Toner DCJ

File Number(s):

DC 2007/11/0694

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 8 September 2009 the appellant was convicted of seven counts of importation of child pornography, contrary to Customs Act 1901 (Cth), four counts of encouragement of sexual intercourse with a child under 16 years outside Australia, contrary to Crimes Act 1914 (Cth), s 50DB, and one count of use of the internet to access child pornography, contrary to the Criminal Code (Cth). The prosecutor did not establish the identity of the persons encouraged to engage in sexual intercourse and it was assumed that they were not Australian citizens or residents.

On 21 December 2009 the appellant was sentenced by Toner DCJ in the District Court to a non-parole period of four years, commencing on 8 September 2009 and expiring on 7 September 2013, with a balance of term of two years, six months.

On appeal, the appellant challenged his convictions for all the offences. He submitted that for the purposes of s 50DB the person encouraged to engage in sexual intercourse outside Australia must be an Australian citizen or resident; that the trial judge erred in refusing to direct the jury to acquit if the evidence of an alibi might reasonably have been true; that his counsel at trial should have been permitted to split the closing address, and that the trial judge's direction in relation to tendency evidence was erroneous.

The appellant sought leave to appeal against his sentences in relation to the offences of encouragement of sexual intercourse.

The issues for determination on appeal were:

(i) whether, for the purposes of Crimes Act, s 50DB, the person encouraged to engage in sexual intercourse must be an Australian citizen or resident,

(ii) whether the trial judge erred in refusing to give a direction as to the defendant's alibi,

(iii) whether defence counsel should have been permitted to split the closing address,

(iv) whether the trial judge's direction in relation to the tendency evidence was erroneous, and

(v) whether the trial judge erred in sentencing in relation to the offences of encouragement of sexual intercourse.

The Court held (per Basten JA, Price and S G Campbell JJ agreeing), dismissing the appeal:

In relation to (i)

1. While Crimes Act, s 50AD provided that a person who was not an Australian citizen or resident could not be charged with engaging in sexual intercourse with a child under the age of 16 years overseas, it was not an element of s 50DB that the recipient of the encouragement be an Australian citizen or resident: [24]-[29]

XYZ v The Commonwealth [2006] HCA 25; 227 CLR 532 applied, Toben v Jones [2003] FCAFC 137; 199 ALR 1 referred to.

In relation to (ii)

2. The evidence that the appellant was aware of the existence and nature of the child pornography on his computer might well have been regarded by the jury as overwhelming. None of the appellant's witnesses gave any evidence of knowledge of the material on the computer and there was no evidence that any of them manipulated the material. The absence of a direction in relation to the evidence that the appellant did not have access to his computer at specific times could not have caused a miscarriage of justice: [36]-[37]

3. In circumstances where the appellant did not request a redirection, and the grounds of appeal are inconsistent with the manner in which the trial was run, leave under Criminal Appeal Rules (NSW), r 4 to raise these grounds should be refused: [37]

In relation to (iii)

4. The appellant's counsel did not make an application to split the defence address. There was no suggestion that the refusal of the prosecutor to consent to a split defence address gave rise to a miscarriage of justice. Leave to raise this ground, pursuant to Criminal Appeal Rules (NSW), r 4, should be refused: [41]

In relation to (iv)

5. It was not clear what precise direction would have assisted the jury in relation to the tendency evidence. The evidence was not highly prejudicial. No miscarriage of justice has been demonstrated and leave to raise this ground should be refused: [50]-[51]

In relation to (v)

6. No allowance in sentencing should be made for extra-curial punishment that will be common to all offenders subject to custodial sentences. It is not generally appropriate that wealthy or well-known offenders should receive lesser sentences because they have more to lose as a result of conviction. It is also necessary to distinguish between consequences for the offender and consequences for his or her family and associates: [60]

Einfeld v The Queen [2010] NSWCCA 87; 200 A Crim R 1 referred to.

7. There was no error of principle nor unreasonableness in the sentencing judge taking into account, in the appellant's favour, half of the delay between arrest and trial: [65]

8. At least in some circumstances it is likely that encouragement of sexual intercourse with a child under the age of 16 years will be at a higher level of culpability where it can be shown that the conduct did occur. However, the number of persons encouraged and the specificity with which a victim was identified will also be relevant to sentence. There were factors in the present case that might be thought to diminish the seriousness of the offence. However, the sentence period was not in aggregate excessive: [66]-[68], [99]-[91]

R v Wicks [2005] NSWCCA 409; R v Percival [2001] NSWCCA 429; R v Pearson [2005] NSWCCA 116; Kaye v The Queen [2004] WASCA 227 discussed, R v Ruppert (unrep, County Court of Victoria, 19 August 1998) distinguished, R v Van Der Zyden [2012] QCA 89 disapproved.

9. By imposing separate, wholly concurrent and identical sentences for offences involving common elements, the sentencing judge erred by sentencing the appellant more than once for those common elements: [92]-[94]

Pearce v The Queen [1998] HCA 57; 194 CLR 610; Johnson v The Queen [2004] HCA 15; 78 ALJR 616, R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66 applied, R v Knight [2005] NSWCCA 253; 155 A Crim R 252; R v Merrin [2007] NSWCCA 255; 174 A Crim R 100; Porter v The Queen [2008] NSWCCA 145 referred to.

Judgment

BASTEN JA: In August and September 2009 the appellant stood trial in relation to 12 counts on an indictment alleging two main groups of offences against Commonwealth law. Counts 1-7 alleged importation of child pornography on or about 31 August 2006 in contravention of the Customs Act 1901 (Cth). Counts 8-11 alleged conduct which had occurred over six years earlier, in March 2000, involving encouragement of sexual intercourse with a child under 16 years of age outside Australia, contrary to s 50DB of the Crimes Act 1914 (Cth). Count 12 alleged use of the internet to access child pornography, between March 2005 and August 2006, contrary to Criminal Code (Cth) and related to conduct the subject of the first group of counts.

On 8 September 2009 the appellant was convicted by a jury on all counts. On 21 December 2009 he was sentenced by Judge Toner in the District Court to a non-parole period of four years, commencing on 8 September 2009 and expiring on 7 September 2013. The balance of the term was two years, six months, giving a total sentence of six years, six months imprisonment.

By a notice of appeal dated 10 December 2010, the appellant challenged his conviction on counts 8-11 and also his sentence on those counts. On the same day (10 December 2010) the appellant filed written submissions in support of his conviction appeal and his application for leave to appeal against sentence. During 2011 the appellant filed further written submissions. On 13 January 2012 the appellant filed amended grounds of appeal together with a fourth set of written submissions. The hearing of the appeal took place on 28 June 2012. Although the delay was not explained, senior counsel for the appellant accepted that the lapse of time was not the responsibility of either the Director of Public Prosecutions or the Court.

The delay might have been significant: the sentences on all counts other than counts 8-11 expired on 7 March 2012. Any non-parole period fixed in respect of those convictions would likely have expired before the amended grounds of appeal were filed. In the event, the lapse of time has not caused prejudice as, for the reasons given below, the conviction appeals should be rejected.

As the proceedings involved contraventions of Commonwealth law, both the trial and the proceedings in this Court involved the exercise of federal jurisdiction. The relevant provisions of the Criminal Appeal Act 1912 (NSW) apply as federal law, pursuant to the Judiciary Act 1903 (Cth), s 68(1)(d) and (2). As will appear, the appellant's initial conviction appeal in respect of counts 8-11 involved a question of law only and did not require leave: Criminal Appeal Act, s 5(1). Ground 2 (unreasonable verdicts) was not pressed. Grounds 3-6 did not involve questions of law only and were matters in respect of which it is not appropriate to grant leave to appeal. It is appropriate that there be a grant of leave to appeal against the sentence on counts 8-11.

Counts 8-11: conviction appeal

On 31 August 2006, the appellant was intercepted at Sydney International Airport, returning on a flight from Vancouver, Canada. Customs officers seized a laptop and digital video recorder. They located on these items images involving child pornography and child abuse. They also located a volume of emails dating from 1999. Counts 8-11 involved four particular emails sent by the appellant (as the jury accepted) to two email addresses. The identity of the recipients was not established and accordingly it should be assumed for the purposes of the legal argument that neither was a citizen or resident of Australia. The emails discuss places in Bangkok, Phnom Penh and Costa Rica where girls under 16 years of age could be located for the purposes of sexual activity. The jury verdict, which was not challenged in respect of these facts, demonstrated that the prosecution had proved that the emails were sent by the appellant with the intention of encouraging conduct which would constitute engaging in sexual intercourse with a person who was under 16.

The legal issue raised by the first ground of appeal was whether the elements of the offence required proof of that which, by concession, was not established, namely that such conduct outside Australia was to be committed by a citizen or resident of Australia.

At the time of the alleged offending, the statutory provisions relevant to counts 8-11 were contained in Part IIIA of the Crimes Act. Part IIIA was repealed with effect from 15 April 2010 by the Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 (Cth), the equivalent provisions now being found in the Criminal Code (Cth). In March 2000, the relevant offence was found in s 50DB of the Crimes Act, which read:

"50DB Encouraging offence against this Part

(1) A person contravenes this section if:

(a) the person does an act, or makes an omission, whether within or outside Australia, with the intention of encouraging conduct of a kind that would constitute an offence against this Part (other than this section); and

(b) the act or omission is reasonably capable of encouraging such conduct;

whether or not that conduct in fact occurs.

Penalty: Imprisonment for 17 years.

(2) In this section:

encourage means:

(a) encourage, incite to, or urge, by any means whatever, for example, by written, electronic or other form of communication; or

(b) aid, facilitate, or contribute to, in any way whatever.

(3) These are examples of acts covered by paragraph (1)(b):

(a) organising an arrangement that facilitates an offence against this Part (other than this section);

(b) assisting a person to travel outside Australia in order to commit an act that would constitute an offence against Division 2;

(c) advertising an offer so to assist a person or an arrangement for so assisting a person."

Division 1 of Part IIIA was entitled "Preliminary" and contained a number of definitions, to which reference will be made in due course. Division 2, headed "Sexual offences against children overseas" set out four primary provisions of which the first, s 50BA, which was relied on in the present case, provided:

"50BA Sexual intercourse with child under 16

(1) A person must not, while outside Australia, engage in sexual intercourse with a person who is under 16.

Penalty: Imprisonment for 17 years."

Division 3 is headed "Defences" and included, for example, a belief that the victim was over 16, or that the accused and the victim were married: ss 50CA and 50CB respectively.

Division 4 contained two sections of which one was s 50DB, set out above, the other being s 50DA, the operative part of which was structurally the same as s 50DB, with the variation that in place of the intention "of encouraging" the relevant conduct, it referred to the intention "of benefiting, whether financially or not, from" conduct similarly described, although without the words in parenthesis in s 50DB(1)(a) excluding an offence under the section itself.

The language of s 50DB(1)(a) was attended by an element of uncertainty which founded the appellant's submissions in respect of ground 1. The conduct was identified by use of the subjunctive mood, "would constitute", which invoked a contingent or hypothetical element. On one view, the contingency was merely that the conduct might or might not occur. The alternative view was that the conduct which might or might not occur was conduct which would constitute an offence. The appellant argued for the second reading, with the further element that to be an offence under Part IIIA the act must be committed by a person who could be charged with and convicted of the relevant offence.

To explain the different approaches it is necessary to refer back to the offences in Division 2. In respect of three counts the relevant offence was that under s 50BA, set out at [9] above. (The fourth count related to an act of indecency on a person under 16, which would be an offence under s 50BC, but that variation does not affect the present argument.) In its terms, s 50BA appeared to create an offence by any person in any place in the world, other than Australia. The appellant submitted that it could not be so understood and, indeed, was not so intended. That conclusion relied on the provision in Division 1, s 50AD, which limited those who could be prosecuted:

"50AD Who can be prosecuted for an offence committed overseas

A person must not be charged with an offence against this Part that the person allegedly committed outside Australia unless, at the time of the offence, the person was:

(a) an Australian citizen; or

(b) a resident of Australia; or

(c) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; or

(d) any other body corporate that carries on its activities principally in Australia."

Reading ss 50AD and 50BA together, the appellant submitted that, despite the apparent breadth of s 50BA, it only created an offence for the purposes of the Part where, although the conduct must occur outside Australia, the offender was an Australian citizen or a resident of Australia.

In order to evaluate this submission, it is necessary to place s 50DB in its statutory context. Generally speaking, aiding and abetting, encouraging and inciting refer to forms of ancillary culpability involving a derivative responsibility for the crime committed by another. These kinds of responsibility were reflected in ss 5 (aiders and abettors), 6 (accessory after the fact) and 7A (inciting to or urging the commission of offences) in Part IA of the Crimes Act. There was a qualified adoption of those provisions in Part IIIA by virtue of the following parts of s 50AA:

"50AA General

(1) In this Part:

...

offence, in the case of a reference to an offence against this Part or against a particular provision of it, has a meaning affected by subsections (2) and (3) of this section.

...

(2) A reference in this Part (except section 50DB) to an offence against this Part or against a particular provision of it includes:

(a) a reference to:

(i) an offence against section 6, 7 or 50DB ...

...

that relates to an offence against this Part or against that provision of it; and

(b) a reference to an offence against this Part, or against that provision of it, because of section 5.

(3) A reference in section 50DB to an offence against this Part or against a particular provision of it does not include a reference to such an offence because of section 5.

(4) Section 7A does not apply to an offence against this Part."

Section 50DB was thus substituted for the operation of ss 5 and 7A in respect of offences against Part IIIA. The Director asserted that the structure of these provisions revealed an important characteristic of s 50DB, namely that it did not involve any form of derivative liability but imposed direct responsibility for the kind of conduct which might otherwise have been caught by ss 5 and 7A. There was, therefore, a deliberate abandonment of the language of aiding and abetting "the commission of any offence against any law of the Commonwealth" (language that occurs in both s 5 and s 7A) and replacement with encouraging "conduct of a kind that would constitute an offence", not against any law of the Commonwealth, but against Part IIIA. On this approach, the particular conduct, "of a kind that would constitute an offence", picking up s 50BA, was engaging in sexual intercourse outside Australia with a person who was under 16. While a person who was not an Australian citizen or a resident of Australia could not be charged with such conduct, the conduct itself was not limited by reference to the nationality or residence of the person. The critical connection in s 50DB(1) was with "conduct" having the specified characteristics in s 50BA, and not with a person having a characteristic specified in s 50AD.

The appellant resisted that construction as being contrary to the understanding of the operation of Part IIIA adopted by the High Court when considering its constitutional validity in XYZ v The Commonwealth [2006] HCA 25; 227 CLR 532. That case was concerned specifically with offences under what were, in 2000, ss 50BA and 50BC. An interlocutory challenge to the validity of those provisions was mounted on the basis that they were not supported by s 51(xxix) of the Constitution, as laws with respect to external affairs. For that purpose, Gleeson CJ identified the provisions in the following terms, at [2]:

"Sections 50BA and 50BC of the Crimes Act 1914 (Cth) respectively make it an offence for a person, while outside Australia, to engage in sexual intercourse with a person under sixteen, or to commit an act of indecency on a person under sixteen. By virtue of s 50AD, the first-mentioned 'person' relevantly means a person who was, at the time of the offence, an Australian citizen or a resident of Australia."

The Chief Justice continued at [4]:

"No issue of statutory construction arises. That the legislation has, or purports to have, extra-territorial effect is clear. In terms, it relates to conduct outside Australia, but is limited in its operation to the conduct of Australian citizens or residents."

The circumstances of the case, as noted by Gleeson CJ at [3], were that the accused was an Australian citizen and that the offences were said to have been committed in Thailand. The alleged victim was neither a citizen nor a resident of Australia. Given that his Honour did not consider there to be a relevant question of statutory construction involved, the comments set out above may be understood to reflect the circumstances of the case in which the question of constitutional validity arose.

In a joint judgment, Gummow, Hayne and Crennan JJ spoke of the issue to be determined in the following way at [49]:

"The Commonwealth correctly submitted that legislation proscribing conduct engaged in outside Australia, such as ss 50BA and 50BC of the Crimes Act, is supported by the external affairs power. That is so without the further requirement, here imposed by s 50AD, that the person alleged to have committed the offence outside Australia must be an Australian citizen or a resident of Australia."

That language is consistent with the manner in which the issue was earlier addressed at [31] (in the joint judgment) and at [74] by Kirby J. On the other hand, Kirby J also referred to the fact that the plaintiff's Australian citizenship "afforded a clear connection between the plaintiff and the subject matter of the federal law": at [133].

In these circumstances, it is arguable that both Gleeson CJ and Kirby J placed some weight upon the connection with Australia, for the purposes of a prosecution. However, the Court was not concerned with the operation of s 50DB and, pursuant to that provision, the same connection was required between the putative offender and Australia: that is, if the act were done outside Australia, the person could not be charged unless he or she was a citizen or resident of Australia. Accordingly, there was nothing in XYZ which was inconsistent with the Director's construction of s 50DB.

Even accepting that to be so, the appellant submitted that there was uncertainty as to whether the constraint in s 50AD should apply to the characterisation of the conduct referred to in s 50DB as well as to the capacity to prosecute the person sought to be encouraged. In other words, if the encouragement or incitement were to take place in a European country, by a person organising sex tours of a South East Asian country, not only should the alleged offender be a citizen or resident of Australia, but so should the target audience. It is unlikely, the appellant contended, that an Australian citizen in Europe, organising a trip for non-Australians to South East Asia for sex with young persons under the age of 16, would have been intended to be caught by such a provision. By contrast, an Australian citizen in Europe seeking to organise a trip for fellow Australians to go to South East Asia was an entirely plausible reading of the provision. At the very least, the submission proceeded, in circumstances where the language was ambiguous or doubtful, the ambiguity or doubt should be resolved in the favour of the subject by refusing to extend the category of criminal offences, in accordance with the reasoning of Gibbs J in Beckwith v The Queen [1976] HCA 55; 135 CLR 569 at 576.

The degree of uncertainty in the present case is not sufficient to invoke such a principle. There are three primary reasons for adopting that conclusion. The first is that s 50DB, being a provision imposing direct liability for conduct of a particular kind, which did not depend on whether an offence was committed by another person, should not be read down by reference to the possibility that a particular person could not have been prosecuted for such an offence if it were committed.

Secondly, the focus of the provision was the discouragement of persons in Australia, or Australian citizens and residents outside Australia, encouraging child sex tourism. As the section made clear, the conduct might not take place and, it should be accepted, the encouragement might have been directed to a general audience, without the need to determine where in the world they were resident, nor whether they were Australian citizens. The fact that the encouragement might be directed to an individual (as it was in this case) did not mean the prohibition was so restricted. The attraction of the appellant's submissions diminished once that factor was recognized.

Thirdly, that ss 50BA and 50BC could only relate to conduct outside Australia, but were defined without reference to the citizenship or place of residence of the person committing the offence, was clearly recognised in the joint judgment in XYZ, in upholding the validity of those provisions. The interrelationship of those provisions with s 50AD did not lead to a different conclusion. Section 50AD limited those who could be prosecuted for such an offence, but did not limit the scope of those offences. Other offences in Part IIIA involved conduct which could occur within or outside Australia, including s 50DB itself. Again, the effect of the section was not to prevent such conduct as might be committed outside Australia from being an offence, if not committed by a citizen or resident of Australia.

This conclusion receives further support from the operation of s 50DA, dealing with those seeking to benefit from conduct of the kind that would constitute an offence against Part IIIA. Such conduct may itself be carried out within or outside Australia, but, assuming it were carried out within Australia, it is difficult to find that it was only intended to render such conduct an offence if the conduct from which the benefit was sought to be obtained involved sexual activity by citizens or residents of Australia in an overseas country. If such a limitation were not to be imposed on those acting with intent to benefit, the similar structure of s 50DB resists such a limitation with respect to the offence of acting within intent to encourage.

Finally, some limited further support may be obtained from the heading of the Part, namely "Child sex tourism". That heading appeared as the heading of a Part "appearing before the first section of the Act", that is, in the table of contents, and thus forms part of the Act: Acts Interpretation Act 1901 (Cth), s 13(2). That title is at least consistent with the purpose of the Act being to criminalise various forms of conduct having a relevant connection with exploitation of children in other countries. It thus confirms the purpose which is otherwise to be inferred from the language of Part IIIA, read as a whole: cf Toben v Jones [2003] FCAFC 137; 199 ALR 1 at [137] (Allsop J).

It follows that it was not an element of the offences identified in counts 8-11 that the recipient of the encouragement be a citizen or resident of Australia who would, if the offences were committed, be liable to prosecution under Part IIIA for the sexual activity. Ground 1 must therefore be rejected.

Other counts: conviction appeal

(a) grounds 3 and 4 - access to laptop

Grounds 3 and 4, as set out in the amended grounds of appeal filed on 13 January 2012, were as follows:

"Ground 3. His Honour erred in failing to direct the Jury that, if the evidence given by the appellant's witnesses (to the effect that the appellant did not have access to the relevant laptop when the material was said to have been downloaded on to that laptop) might reasonably have been true, then the jury was required to acquit the appellant in relation to counts 1-2 and 12.

Ground 4. Due to his Honour's failure to direct the jury as set out in Ground 3, a miscarriage of justice has resulted in relation to counts 1-7 [sic] and 12."

The written submissions were developed with respect to counts 1-7. However, their focus was upon counts 1 and 2 which, it was asserted, involved material most of which was downloaded on Wednesday, 22 March 2006 at about 3.30pm, and appeared to have been manipulated on 26 March 2006 between 9.23 and 9.24 am, as certain directories had been modified at those times.

So far as the opportunity to download material in private on 22 March 2006 was concerned, the appellant was then staying with his sister at South Yarra in Melbourne, convalescing following surgery. However, the Director stated in his written submissions, a proposition not contradicted by the appellant, that there was no evidence as to his whereabouts during that day, his sister having been at work from 8.30am until the evening: Tcpt, 02/09/09, p 1040(18)-(30). Although a nanny was at the home, her function was to look after the children. She did not give evidence.

In relation to the morning of 26 March, there was evidence from several witnesses for the appellant that he was still staying with his sister and, from some time before 9am until about midday, the appellant and two friends (and his sister for part of the time) were away from the house watching a cycling event. This evidence should, in the appellant's submission, have been sufficient to raise a reasonable doubt as to whether material which was accepted to have been on his computer was manipulated by him on this occasion, and, if not, whether it had been downloaded by him and not by someone else.

The complaint was that the trial judge dealt with the matter dismissively, on the basis that the times recorded within a computer system are "notoriously unreliable": Tcpt, Summing-up, 07/09/09 at pp 24-25. That passage should however be put to one side, as it related to counts 8-11, not counts 1 and 2.

The appellant set out in written submissions the evidence of the appellant's sister in respect of the closing ceremony of the Commonwealth Games. He did not, however, set out the appellant's counsel's address with respect to that matter. These matters (not limited to the specific occasion) were addressed by counsel, although no great emphasis was placed on the detail of the evidence in the submissions for the appellant. That fact suggested that the issue now sought to be raised was not one seen to be equivalent to a waterproof alibi during the hearing. The appellant conceded that there had been no request for a redirection in respect of that matter and that he therefore required leave to raise the issue, pursuant to the Criminal Appeal Rules, r 4.

A consideration of the relevant evidence as to the timing of events, the extensive manipulation of data on the computer, the unlikelihood of some external party downloading the material onto the appellant's computer, the unlikelihood that the appellant was not aware of the data on the computer, together with evidence as to the difficulties in assigning a specific time to particular activities on the computer by reference to the records on the computer hard drive, supported the Director's case that the appellant was well aware of the existence and nature of the material on his computer. That case might well have been regarded by the jury as overwhelming. Of the witnesses who were called, none gave evidence that he or she had any idea what material was on the computer and there was no suggestion that any of them, although sharing accommodation from time to time with the appellant, themselves manipulated the material.

Grounds 3 and 4 are therefore inconsistent with the manner in which the trial was run. They were first raised as grounds of appeal on 28 March 2011, some 18 months after the trial. The absence of a general direction of the kind referred to in ground 3 could not have caused a miscarriage of justice in the circumstances of the case. Leave under r 4 to raise these grounds should be refused.

(b) ground 5 - splitting defence address

Ground 5 stated:

"His Honour erred in refusing to permit the appellant's closing address to be divided between senior and junior counsel, in circumstances where junior counsel with specialist computer knowledge had been wholly responsible for the cross-examination of the Crown's computer expert, and the computer evidence had constituted a complex and self-contained portion of the prosecution's case.

That the counsel in question, Mr Lange, was present for the evidence of the principal prosecution computer expert, Mr Daniel, is not in doubt. His attendance part of the way through the trial for that purpose was explained to the jury at the time. However, the suggestion that the trial judge "refused" to permit him to address on matters involving specialist computer knowledge was fallacious, the fallacy being the implicit suggestion that there was an application made to the trial judge to that end.

Shortly before the conclusion of the prosecution address, and in the absence of the jury, Mr Bellanto, senior counsel for the appellant, raised the issue in the following way (Tcpt, 04/09/09, p 11):

"BELLANTO: Your Honour, could I just mention one matter, in the interests of trying to speed things along I raised with Mr Game [senior counsel for the Director] the possibility of splitting our address in that Mr Lange touches on the matters that he brings-

HIS HONOUR: I've got no problems with that. Do you have any problem with that?

CROWN PROSECUTOR: Yes, I do, your Honour, I object to it. He can't have two addresses.

HIS HONOUR: I know he can't. It can only be done by consent.

BELLANTO: That's right, your Honour, I thought I'd offer it.

HIS HONOUR: All right, let's have the jury."

The "offer" fell well short of an application. Nor was there any suggestion that the unwillingness of the Director to consent gave rise to a miscarriage of justice. The written submissions for the appellant conceded that splitting a final address was a course to be reserved for "exceptional cases", referring to the principles helpfully enunciated by Kaye J in Director of Public Prosecutions v Hills (No 8) [2010] VSC 596 at [6]-[10]. He then submitted that the present was such an exceptional case, because of the specialised knowledge needed to deal with the computer evidence, being a discrete topic capable of severance, to avoid duplication and confusion. There followed extensive written submissions referring to overseas authorities, extracts from the cross-examination of Mr Daniel and principles relating to miscarriage of justice. None of these matters advanced in any way a case which had not been presented in those terms to the trial judge. The ground was without substance. It required an assessment of the factual matters at issue in the trial which was not assayed before the trial judge. Leave to raise this ground should be refused.

(c) ground 6 - direction as to use of computer material

Ground 6 stated:

"His Honour erred in failing to direct the jury adequately, or at all, on the limited use, which could properly be made by the jury of the material contained in Exhibits T, U and V."

Exhibits T and U involved downloads of internet histories taken from the hard drive of the appellant's computer. They indicated websites visited at particular times. Exhibit V was a collection of 36 examples taken from Exhibits T and U. The material in the histories was used by Mr Daniel to demonstrate how access could be obtained to the contents of the hard drive. His description of the tasks he was undertaking was set out in the written submissions, but need not be repeated. The point made in summary was as follows (par 10):

"Thus, the Crown contended that Exhibits T, U and V, when coupled with the actual images, which were the subject of the earlier counts, as well as the similarity of names, permitted the jury to infer that the appellant had used a carriage service to access child pornography, contrary to s 474.19 Criminal Code (C'th). Accepting, for the purpose of the present argument, the validity of this explanation, then the jury was nonetheless left in a vacuum with regard to knowing how such evidence could be used during its deliberations."

The submissions accepted that the manner in which Mr Daniel was examined on the topic would have indicated to the jury that the evidence was only relevant to count 12, as demonstrating use of a telecommunication carriage service to access child pornography. Although the exhibits did not contain the relevant photographs, Mr Daniel gave evidence that his firm had been able to access approximately 100,000 images on the hard disc of which he estimated, without objection, that approximately three-quarters were of a pornographic nature: Tcpt, 24/08/09, pp 445(40) - 446(5).

The crux of the complaint was that the material could only be relevant with respect to counts other than count 12 as tendency evidence, admissible pursuant to s 97 of the Evidence Act 1995 (NSW). However, no tendency notice, issued for the purposes of that provision, was relied upon. Without a clear direction as to how to use the material, it was submitted that the potential for prejudice was plain because the material demonstrated that the appellant had "frequently surfed the Internet for child pornography; thus, it is more likely that he was the sort of person who would now possess the kind of material, which was the subject of counts 1-7, or, indeed, engage in the type of activity charged in counts 8-11": at par 13. To avoid such prejudice, it was necessary that the jury be directed that "they must consider each count separately and ... consider it only by reference to the evidence that applies to it": KRM v The Queen [2001] HCA 11; 206 CLR 221 at [36] (McHugh J).

Specific complaint was made in respect of two directions. First, at p 21 of the summing-up, the trial judge stated:

"The Crown says the very volume of material, albeit that it concedes that there is significant duplication of parts of the material, depending upon where it might be within each of the various devices, the very volume of material points again to something other than accident or somebody other than John Cargnello, the accused, manipulating or inserting or bringing down this material into this system."

The trial judge had previously stated (Summing-up, p 16):

"You must not substitute the evidence of other conduct for evidence of the specific offences in the indictment. You must not reason that because the accused may have done something wrong on other occasions he must have done so on the occasions in the indictment."

The submissions concluded with an acknowledgment that r 4 of the Criminal Appeal Rules applied because no further direction was sought at trial. Reference was also made "to the plain inadmissibility of Exhibits T, U and V in relation to" counts other than count 12.

The Director made two broad responses. The first was that no objection was taken to the tender of the material; no direction was sought as to the use of the material and no additional directions were sought at the conclusion of the summing-up. All of these propositions are correct and invoke the need for leave. However, the second basis of the Director's response was that while the exhibits were used in proof of count 12, they also formed part of a "circumstantial case" that no one other than the appellant was responsible for downloading and manipulating the child pornography on the computer hard drive.

In an appropriate case, there may be a need to distinguish aspects of circumstantial evidence which are indeed a form of tendency evidence. However, that problem was not explored in submissions in this case. It is by no means clear what precise direction could have been given which would have assisted the jury in respect of this material, once it was admitted. Exhibit U, which contained in some 350 pages a dump of a computer log, was not of itself highly prejudicial. It demonstrated a high volume of usage to a large number of sites, the names of which vary from the anodyne to the salacious. Exhibit T is in similar form, although the printout extends to some 560 pages. The suggestion that some further direction should have been given, in terms which are not made explicit, cannot be used as a belated attempt to remedy what is now seen as a forensic error in failing to object to the admissibility of the evidence under s 97 of the Evidence Act.

In the circumstances, no miscarriage of justice has been demonstrated. Leave to raise this ground should be refused.

Counts 8-11: sentencing appeal

The trial judge, quite correctly, treated these four counts as involving more serious conduct than the importation counts. The maximum sentence for the offence was imprisonment for 17 years. The same sentence, imprisonment for five years, was imposed in respect of all counts. It might be assumed that, if a non-parole period had been fixed in respect of this period alone, it would have been approximately three years (using the proportion of about 61% applied by the trial judge to the overall sentence).

The submissions noted that the appellant was 55 years of age, had no prior criminal history and was serving his first custodial sentence. The sentencing judge addressed these considerations, but considered that they should be given less weight than in some other cases, referring to R v Gent [2005] NSWCCA 370; 162 A Crim R 29 at [65], although his Honour may have meant to refer to [64] where Johnson J (McClellan CJ at CL and Adams J agreeing) stated:

"There is a foundation for the approach that less weight should be attached to evidence of prior good character on sentence for offences of importing child pornography. It appears that such offences are committed frequently by persons of otherwise good character. General deterrence has been referred to as the 'paramount consideration' on sentence for this class of offence .... The fact that the offence is, in a sense, committed in secret is also relevant to this issue."

With respect to counts 8-11, the sentencing judge treated the conduct as more serious than mere possession of pornographic material, because it demonstrated "not merely a detached fixation with the topic but encouragement to actually do what the images depicted and more": Judgment, p 14. He further described the text messages as "on their face persuasive and included implicitly claims of prior experience on the part of the offender". He noted that, as with the other offences, there were steps taken to disguise the nature of the offending. The submissions challenged the finding of the trial judge that the criminality fell within the middle of the range for offences of that kind: Judgment, p 20.

With respect to the subjective circumstances of the offender, the sentencing judge stated (p 15):

"The offender has shown no contrition for these offences. ... He has shown no relevant co-operation with the authorities. He was entitled to put himself on the State but at the same time he cannot avail himself of any assistance where none was rendered ...."

Two further factors which were considered by the sentencing judge and reiterated on appeal require specific consideration. These involved supposed "extra-curial punishment" and the delay in the matter coming to trial.

(a) extra-curial punishment

The factors relied upon as extra-curial punishment related to the business which the appellant was engaged in prior to his arrest and imprisonment. His sister's partner gave evidence on the sentencing hearing, which the sentencing judge appears to have accepted, that in the year ending June 2009, the business showed a pre-tax profit of $850,000 (in Canadian currency). The business was then said to be valued at $7 million. However, the removal of the appellant from active participation in the business, which involved some form of gaming security services, appears to have led to a collapse of the value so that, at the date of the sentencing hearing, they were thought to be worth little more than their liabilities, which were $1 million. (His Honour did not find it necessary to determine whether these figures were in Canadian or Australian dollars for the purposes of the exercise.)

His Honour dealt with the submission that the appellant had suffered a very substantial extra-curial punishment in the following way (p 17):

"Whilst I conclude that probably a significant part of the dramatic diminution in value of his company has been because he can no longer manage it, the question is whether this represents extra curial punishment or is simply a consequence of his conviction. It seems to me that the effective demise of this man's business is a consequence of his conviction for these crimes rather than a form of punishment for it."

After referring to a number of authorities dealing with the issue, he concluded that it would be "wrong to categorise this offender's loss as a consequence of his crimes as extra curial punishment, but it is a factor that can be taken into account in a generalised sense": Judgment, p 18. The overall effect of this reasoning is not entirely clear, but it appears to accept that the loss of the appellant's business is a material detriment that can be taken into account, though not one to be accorded significant weight.

It is beyond doubt that the various steps in the criminal process, from arrest to trial, to conviction and loss of liberty can have multifarious effects, not only for the offender, but also for his or her family and associates. As the trial judge noted, it is difficult to know whether incarceration, which results in the loss of liberty to the breadwinner of a family, thereby removing the source of mortgage repayments with the consequent loss of the family home, is to be treated differently from the loss of managerial skills to a small business or the loss of rental accommodation to the family of an offender with no assets or savings. Some of these considerations were addressed in Einfeld v The Queen [2010] NSWCCA 87; 200 A Crim R 1 at [85]-[100]. First, it is clear that no particular diminution in sentence should be accorded for consequences of imprisonment which will, in a general sense, be common to all offenders subject to custodial sentences. Secondly, it is not generally appropriate that those who are wealthier, or who have a higher public profile, should receive lesser sentences because they have more to lose as a result of conviction. Thirdly, it is necessary to distinguish between consequences for the offender and consequences for his or her family and associates.

As the sentencing judge properly recognised, the matters to be taken into account in the present exercise were identified in s 16A of the Crimes Act. They included "the character, antecedents, age, means and physical or mental condition of the person": s 16A(2)(m), as in force at the time of sentencing. However, to identify material factors is not necessarily to explain how they will be taken into account in particular circumstances.

It is no doubt true to say that the value of a business may be calculated as a multiple of its annual pre-tax profits; on the other hand, a purchaser would take account of the possibility (or probability) that the profitability in the past has been a factor of the involvement of a principal executive. A purchaser would not be likely to pay a sum calculated purely by reference to past profitability if the executive in question were not continuing in that role. Accordingly, the disastrous drop in value may be overstated in the submissions. Further, the turnaround in the fortunes of the business appears to have pre-dated the appellant's conviction. That may have been partly due to his pre-occupation with his forthcoming trial. However, the same consequence could have flowed from injury or illness. Taking all these considerations into account, it is not apparent that the sentencing judge applied any wrong principle in the approach set out above.

(b) delay

The sentencing judge dealt with two aspects of the lapse of time involved in the present case: Judgment, p 20. First, he noted that the counts 8-11 offences had occurred over nine years before the trial. That factor was not considered significant in the absence of any difference in sentencing patterns, which would need to be taken into account if they had occurred. He indicated that none had been drawn to his attention.

Secondly, the sentencing judge gave consideration to the delay between the appellant's arrest and his trial, a period of some three years. Although the circumstances were reagitated on appeal, the manner in which error was asserted was not identified with precision. The sentencing judge stated at pp 20-21:

"I find that about half of the delay was caused by those problems confronting the Crown. I take this delay into account in [the] offender's favour when sentencing. He has had the uncertainty of the process over him with its obvious distractions and detriments."

On the appellant's argument, the trial was originally intended to proceed on 26 November 2007, almost 15 months after his arrest. No complaint appears to be made in respect of that period of delay. However, by giving consideration in the appellant's favour to half of the three year period (approximately 18 months) account has been taken of all but three months of the subsequent delay. There was no error of principle, nor unreasonableness or other error demonstrated in the approach taken by the sentencing judge in this respect.

(c) manifestly excessive sentence

(i) general principles

One consideration which might be taken into account is that, although an offence under s 50DB does not require that the conduct encouraged in fact occurs, at least in some circumstances it is likely that the offending will be at a higher level of culpability where it can be shown that the conduct did occur. In such a case, the legislature has indicated that the person guilty of encouraging will be liable to the same maximum imprisonment (17 years) as the person who engaged in sexual intercourse.

It might be doubted, however, whether the encourager or facilitator should be liable to a greater penalty in circumstances where the encouragement was at a person-to-person level (with no large target audience involved) and no specific victim in mind. That consideration arises because most of the cases appear to involve what might be described as the substantive offences under ss 50BA-50BC, rather than incitement or encouragement.

The comparison between the cases involving offenders engaged in sexual activity and those encouraging or facilitating others to engage in such activity must, of course, be approached with caution. The culpability of a facilitator who arranges for groups of people to exploit, for example, child prostitutes in South East Asia may be seen as higher than that of the individual who spends a week in a tourist destination and indulges in such activity. On the other hand, the culpability of an individual who passes on information about the availability of children for prostitution in particular places, without any further step to facilitate actual sexual activity, will generally be less culpable than the person who engages in the sexual activity, if it occurs.

A comparison is also available with respect to sentences imposed for sexual activity with young persons carried out within Australia and punished in accordance with local laws. This point of reference was adopted by this Court in R v Wicks [2005] NSWCCA 409 by McClellan CJ at CL (Adams and Hoeben JJ agreeing). The offender in that case had been sentenced, on a plea of guilty, with respect to six offences committed during a 10 day holiday in Thailand in February 2003. Four counts involved sexual intercourse with persons under 16 years of age contrary to s 50BA(1) of the Crimes Act, together with one offence of inducing a person under 16 years of age to have sexual intercourse with another person. For each offence the trial judge imposed a sentence of five years imprisonment, with a non-parole period of three years. For a lesser offence under s 50BD (inducing a person under the age of 16 years to commit an act of indecency) a sentence of three years imprisonment was imposed.

McClellan CJ at CL noted that in various Australian States the sentencing regime discriminated according to the age of the child and according to whether circumstances of aggravation (such as being a carer or a person in authority with respect to the child) are involved. He referred to the decision of this Court in R v Percival [2001] NSWCCA 429, involving an offender convicted of two counts of sexual intercourse with victims, each aged between 12 and 14 years. The acts involved fellatio and the victims each worked for the offender. Two further assaults were taken into account. A sentence of six years imprisonment with a non-parole period of four years, as imposed by the sentencing judge, was upheld on appeal. The maximum penalty in respect of the offences was then eight years imprisonment.

McClellan CJ at CL also referred to R v Pearson [2005] NSWCCA 116, a case involving a plea of guilty to three counts of aggravated indecent assault and one count of using a child under the age of 14 for pornographic purposes. The offences carried a maximum penalty of seven years imprisonment. The offender was sentenced to three years imprisonment with a non-parole period of two years. In Wicks, the Court described the sentences of five years as being at "the lowest end of the available range", but did not intervene on that basis. Rather, it was held that the sentencing judge had erred in failing to partly accumulate the sentences, all being imposed concurrently. The appropriate degree of accumulation was held to be a period of two years. The effective sentence was therefore a period of imprisonment of seven years, with a non-parole period of five years.

It therefore appears that the only case of direct assistance in the present circumstances is Kaye v The Queen [2004] WASCA 227. That was relied upon by the sentencing judge, but primarily for the purpose of noting the importance of general deterrence in dealing with such offences, noted by McLure J. Kaye was also discussed by McClellan CJ at CL in Wicks. As correctly noted in Wicks, Kaye involved one count of offering to assist a person to engage in an act of indecency in Thailand. The conduct in question occurred in October and November 2000 and was thus committed in the same year as that of the appellant in respect of counts 8-11. The applicant operated, apparently on a somewhat informal basis, as a travel agent assisting persons seeking to travel to Thailand. A customer responding to an advertisement in a local Perth newspaper attended the applicant's unit in Perth and noted pictures of young looking Thai boys on the walls. The applicant explained that these and other boys were available as sexual partners and that he could arrange a meeting for a customer. He continued to press the possible services of the boys in conversation with the customer after the customer had expressed a lack of interest in males under the age of 18. The trip to Thailand did not eventuate because the police raided the applicant's premises and later arrested him. The applicant was convicted after a trial and sentenced to imprisonment for six years, with a non-parole period of three years. His appeal against sentence was rejected.

Particular factors bore a degree of similarity with the present case. First, the offender claimed that he himself had engaged in sexual activity with young persons. Secondly, he was 71 years of age, with no prior criminal record. Thirdly, he had a record of community service. On the other hand, there were factors which tended to make the offending more serious than the present case. First, it formed part of what appeared to be an established business venture; secondly, it involved a proposed degree of facilitation which would have resulted in direct contact with identified individuals; thirdly, the offender was prepared to press the services of young boys on an apparently uninterested customer.

Factors which may have diminished the severity of the sentence in Kaye, which were not available in the present case, included the greater age of the applicant and the fact that the prison sentence would weigh heavily upon him because of ill health and a psychiatric condition. However, those factors were not considered by the sentencing judge to have had "a significantly greater effect upon him than upon someone in good health and without such condition": at [40] (in the judgment of Malcolm CJ).

In considering whether the sentence was manifestly excessive, Malcolm CJ noted that it appeared to be only the second case of its kind: at [42]. The first, R v Ruppert was an unreported decision of the County Court of Victoria delivered on 19 August 1998. The case was of limited assistance because it involved writing letters to women in Ghana suggesting they should train young female children to engage in sexual acts. The sentencing judge had been satisfied that "the prisoner's central purpose was one of sexual self-gratification by writing them, and this is not the crime for which he is to be sentenced" (quoted in Kaye at [44]).

The Court in Kaye also considered, by way of comparison, its earlier decision in R v Lee [2000] WASCA 73; 112 A Crim R 168 which had involved one count of sexual intercourse outside Australia, eight counts of acts of indecency and 15 counts relating to child pornography. The sentence imposed by the trial judge on the count of sexual intercourse, of eight years imprisonment, was reduced as excessive in all the circumstances. The total effective sentence imposed, after reduction, was 11 years, with a minimum term of 4.5 years. In rejecting the appeal against sentence in Kaye, Malcolm CJ stated at [54]:

"While the offence fell at the lower end of the spectrum of seriousness contemplated by the legislation, I consider that a sentence of 6 years with a non-parole period of 3 years fell well within the discretion of the sentencing Judge. Ruppert differs significantly from the present case in that in Ruppert the offender pleaded guilty, and, as the learned sentencing Judge said in that case, 'The likelihood of the perversion being effected was low'. In the present case, although the applicant did not profit from the offence, his status as the operator of a travel business providing accommodation and contacts in Thailand to persons interested meant that the likelihood of acts of indecency against children under 16 being committed as a result of his efforts was increased. That, taken in conjunction with the applicant's lack of remorse, indicates that this offence was more serious than that in Ruppert.

Murray J and McClure J agreed, McLure J adding the remarks as to the significance of general deterrence, noted by the sentencing judge in the present case: at [66]. She also explained further why age and health were not significant considerations: at [65].

It is necessary to refer to the recent case of R v Van Der Zyden [2012] QCA 89 and the authorities discussed by Muir JA (with the concurrence of the Chief Justice and Margaret Wilson AJA) at [111]-[117]. That matter involved an unsuccessful appeal by the Commonwealth Director of Public Prosecutions against the leniency of the sentences imposed at trial. The offences, which took place over a period of almost two years, in Kiribati, involved 15 counts and four complainants. Sentences with respect to acts of indecency involved imprisonment for 12 months whilst the more serious offences of sexual intercourse involved imprisonment for three years six months with a minimum term of 21 months. All sentences were to be served concurrently. The rejection of the appeal suggests a sentencing range which would be considered low for such offending in Australia, as discussed in Wicks and Kaye. Little weight appears to have been given to the maximum penalty available.

There are aspects of the judgment in Van Der Zyden which suggest it may have limited weight for present purposes. In particular, the judgment of primary significance in the present case, Kaye, appears to have been misunderstood. After noting that the offender had been sentenced to six years imprisonment with a non-parole period of three years, the judgment in Van Der Zyden continued at [116]:

"His offending conduct involved numerous sexual encounters with boys aged between 15 and 16. The offender travelled abroad for the purposes of engaging in paedophilia and to entice his victims he placed advertisements in a newspaper. The nature and degree of the offending was far worse than in the present case."

In fact, Kaye involved one offence under s 50DB and a far heavier sentence for an attempted facilitation. The description in Van Der Zyden suggests the precedent of Kaye was inappropriately discounted.

(ii) application of principles

Because the events in Kaye occurred in the same year as the events the subject of counts 8-11, and because it appears to be the only case involving an offence under s 50DB for which the sentence is known, it is appropriate to have regard to it in considering whether the sentence imposed on the appellant was excessive. Nevertheless, it does not constitute a "range" and allowance must be made for that fact.

Although there was no degree of accumulation of the sentences, the fact that identical separate sentences were imposed for each of the offences, including one which was not said to involve encouragement of an offence of sexual intercourse, but only acts of indecency, invites attention to the contents of the emails.

Count 10 related to one email sent by the appellant to a recipient only known as "auto" with a number, but apparently in reply to an email which is not referred to in the evidence. The email referred to sex with girls under 16 in Costa Rica stating that, despite recent laws against such activities, "you can still find 20- [15 year olds] in the streets but you need to be careful". The message also stated that, as in Bangkok parks, "fun can still be had with 18- to 20- [13-15 year olds] found in shopping centers. You smile, see if it's returned and then negotiate from there".

This exchange demonstrates a degree of knowledge and experience, but is at a level of generality and in the form of reportage rather than active encouragement, which could not warrant a lengthy term of imprisonment. It is clear that the recipient is a person having similar sexual interests, apparently with some degree of experience. Such an exchange could not warrant a significant sentence of imprisonment and, taken in isolation, might not warrant imprisonment at all.

Counts 8, 9 and 11 all relate to parts of an on-going exchange of emails between the appellant (using the pseudonym "John Cutter") and "zippyboy". They were sent on 1, 5 and 8 March 2000 and are part of a chain in the course of which the appellant and the recipient were planning to meet in Bangkok in late March 2000. Count 8, an email dated 1 March 2000, referred to information which the appellant was hoping to receive, indicating that "younger girls can also be found around the parks in BKK [Bangkok]". The email identified a specific establishment by name which was said to have over 100 girls in the "fishbowl" with "an alternate fishbowl for underage girls". The appellant stated that "[y]ou have to get there early to get the lookers" and that the place was popular with Thai men attending after work.

Count 9 involved an email sent by the appellant on 5 March to the same person. It commenced with reference to a subscription list. It then purported to pass on information from other emails which the appellant had received about picking up "younger girls" in parks in Bangkok. They are referred to as "primarily schoolgirls from poorer families that want to supplement their allowance". Prices were given in respect of a 14-17 year age group. The email then refers to information with regard to Phnom Pen involving girls between 11 and 12 years old, which appears to have been the appellant's preferred age group for sexual intercourse. The appellant was expressing a hope to meet the recipient in Canada prior to visiting South East Asia.

The email of 5 March contained little by way of specific information in relation to locations, but a clear intention to seek very young girls for sexual intercourse. The recipient might be characterised as a prospective companion with similar interests.

Count 11 involved an email of 8 March 2000 that provided the recipient with travel details and a "plan" for proposed sex tourism activities. There is some indication that the appellant was the primary source of experience and information and that the recipient was looking for guidance and assistance. That is consistent with the email which appears to have started the chain, being one from "zippyboy" dated 26 January 2000 indicating that he was arriving in Phnom Penh around March 28 and asking for "[a]nyone interested in hooking up there?" Further, in an email of 28 January, the appellant explained to him the use of "minus 5", stating that "[b]ecause emails can be read by outsiders we never mention ages under 18 and use a minus sign to indicate every five years to add to the age". In a message of 29 January, the recipient stated that this was his first trip to South East Asia, "in Cambodia I'm gonna go with the flow - I hear that 15, 16 is quite common there -". In response to a question from the recipient as to his experience in Cambodia, the appellant stated "[n]ot recently but I have been to both Laos & Cambodia some years ago".

It remains to consider whether the sentences imposed in respect of the 'encouragement' counts 8, 9 and 11 were manifestly excessive. The appellant's contention in this regard is based in part on the sentences themselves, and in part on the observation that his culpability was "at the very least at the middle of the range for offences of this type": Judgment, p 20.

This kind of characterisation, which was no doubt encouraged by the introduction into State law of s 54A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) with respect to offences the subject of standard non-parole periods, is often unhelpful. That is because it is rarely explained what is meant by the 'middle of the range'. Clearly a range is not a point on a scale, but it could cover anything from 25% to 75% of a most serious case, or it could be far more narrowly defined. Unless it is narrowly defined, it is unlikely to provide useful guidance for the sentencing judge, let alone for those reading the judgment.

Assuming that it is more narrowly defined, the following factors might be thought to diminish the seriousness of the offence:

(a) the offences involved an exchange of a small number of emails between like minded persons;

(b) the information was mainly at a level of generality about places where young people available for sexual activities might be located;

(c) there was no attempt to identify or place the recipient of the information in contact with any individual, whether organiser or victim;

(d) the email exchanges occurred over a period of some 10 days;

(e) because the appellant was not concerned to identify individuals, it could not be said that he was exploiting an existing relationship or position of authority;

(f) except at a high level of generality, it was not probable that his conduct placed any group of potential victims at greater risk than they would otherwise have been; certainly there was no specific inference that any individual had been harmed as a result of his conduct.

The sentencing judge accepted that the offences were not committed for profit, although had they been, they would probably have been laid under s 50DA. He also took into account, correctly, that generally deterrence was a significant element in the sentencing exercise and that personal deterrence was a significant element in circumstances where there was no evidence of contrition or insight into the harm that could be done to children by the kind of conduct which the appellant was willing to promote. The real difficulty in the present case is to identify an appropriate sentencing range, taking account of the objective seriousness of the events and the subjective circumstances of the offender.

The contextual material demonstrated a relationship between two men with similar interests developing, with the appellant being the source of information and experience. The purpose was to meet in Bangkok with the intention of finding girls as young as 10 or 11 years of age willing to engage in sexual intercourse as well as fellatio. The probability that the recipient of the emails would engage in such activities would appear to have been quite high, but the fact of such activities was not proved. The degree of encouragement was significant. In these circumstances, an overall sentence for the overall course of conduct involving five years imprisonment was within the appropriate range. The non-parole period, if apportioned as between counts 8-11 and the sentences on which those sentences were accumulated, being approximately three years, was also well within the appropriate range for a mandatory custodial term. It is necessary, however, to consider whether such sentences should have been imposed for each offence.

(iii) error in sentence structure

When sentencing for federal offences, it is necessary to impose separate sentences for each offence: Crimes Act, s 19. On the other hand, having determined that it is appropriate to fix a non-parole period, the sentencing court must fix a single non-parole period in respect of the totality of the sentences: s 19AB(1). It follows that the same approach must be applied to the fixing of the individual sentences, by reference to each count, as explained in relation to State sentencing in Pearce v The Queen [1998] HCA 57; 194 CLR 610 at [40] (McHugh, Hayne and Callinan JJ). The application of that principle in respect of federal sentencing was confirmed in Johnson v The Queen [2004] HCA 15; 78 ALJR 616 at [27]ff (Gummow, Callinan and Heydon JJ, Gleeson CJ and Kirby J agreeing). It follows, as this Court has now explained in a number of cases, that where a sentencing judge imposes the same sentence, reflecting the overall criminality of a course of conduct, in respect of individual elements of that conduct, there will have been error because the offender will have been sentenced more than once for common elements. The fact that each of counts 8, 9 and 11 were the subject of wholly concurrent identical sentences demonstrates that that happened in the present case.

In R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66, Simpson J stated (with the concurrence of Mason P):

"[9] Pre-Pearce, it was possible to discern two different approaches to sentencing for multiple offences. The first was to select a single charge (a lead or representative count) and, in accordance with the principle of totality, on that charge impose a sentence that properly reflected the overall criminality involved in all offences. On the remaining counts, comparatively lenient sentences, frequently fixed terms, were imposed. The second approach was, again with the principle of totality in mind, to select a sentence appropriate to the overall criminality and impose that sentence in respect of all or most of the charges. Both of these approaches avoided the need for elaborate exercises in accumulation of sentences.

[10] Neither of these approaches would survive the application of the Pearce principles. In the case of a judge adopting the first approach, the lengthy sentence imposed in relation to the lead or representative count would appear excessive and those imposed on the remaining counts would appear inadequate. None would represent 'an appropriate sentence' for the specific offence for which it was imposed. On the second approach, all sentences would appear excessive for the specific charges to which they related, even when the ultimate term to be served was unimpeachable."

The need to adopt an offence-specific approach where multiple offences have been charged in respect of overlapping elements of criminality has been confirmed in numerous cases thereafter: see, for example, R v Knight [2005] NSWCCA 253; 155 A Crim R 252 at [78] (Johnson J, Mason P and Barr J agreeing); R v Merrin [2007] NSWCCA 255; 174 A Crim R 100 at [37] (Howie J, Giles JA and Fullerton J agreeing) and Porter v The Queen [2008] NSWCCA 145 at [72]-[74] (Johnson J, Bell JA and McCallum J agreeing). The approach adopted in the present case was therefore erroneous.

(iv) resentencing

An appropriate way of solving the problem in the present case is to impose separate sentences in respect of each of counts 8, 9 and 11, recognising that they were discrete steps in a period of conduct warranting a degree of accumulation in order to reflect the totality of the appellant's culpability. There being no particular reason to distinguish between the three emails on March 1, 5 and 8, it is appropriate to impose the same sentence in respect of each. Because each must be viewed in the context of the chain of emails commencing in January 2000, and because each is properly to be understood in the context of the other emails the subject of the other counts, each involves a significant level of criminality, but with significant overlapping elements.

The email the subject of count 10 did not warrant the sentence imposed: see [82]-[83] above. The sentence in respect of count 10 should be set aside and a period of imprisonment of three months should be imposed, to run concurrently with the other sentences.

While the exercise is to an extent arbitrary, I would propose sentences of three years imprisonment in respect of each of counts 8, 9 and 11, the second and third sentences each being accumulated on 12 months of the previous sentence. The sentence on count 10 should be served wholly concurrently with the sentence on count 11. The sentencing judge accumulated the sentences for counts 8-11 on 18 months of the sentences imposed for the other counts. That course is not challenged and should be maintained. The four sentences thus imposed each commenced on 8 March 2011. I propose that the sentence on count 8 commence on that date, the sentence on count 9 commence on 8 March 2012 and the sentences on counts 10 and 11 commence on 8 March 2013. The sentence on count 10 will terminate before the expiration of the non-parole period, which will remain the date on which the appellant will first be eligible for conditional release.

Accordingly, I propose the following orders:

(1) Dismiss the appeal against conviction in respect of counts 8-11.

(2) Refuse leave to appeal against conviction on counts 1-7 and 12.

(3) Grant leave to appeal against the sentences imposed in respect of counts 8-11.

(4) Allow the appeal in respect of the sentences on counts 8-11; quash the sentences imposed in the District Court and re-sentence the appellant to the following terms:

(a) with respect to count 8, a term of imprisonment for three years commencing on 8 March 2011 and terminating on 7 March 2014;

(b) in respect of count 9, a term of three years imprisonment commencing on 8 March 2012 and terminating on 7 March 2015;

(c) with respect to count 10, a term of imprisonment of three months commencing on 8 March 2013 and terminating on 7 June 2013;

(d) on count 11, a term of imprisonment of three years commencing on 8 March 2013 and terminating on 7 March 2016.

(5) In respect of the sentences imposed in the District Court on counts 1-7 and 12, and the further sentences imposed by these orders on counts 8-11, confirm the non-parole period imposed in the District Court, being four years commencing on 8 September 2009 and expiring on 7 September 2013.

(6) The earliest date on which the appellant is eligible for conditional release is therefore 7 September 2013.

PRICE J: I agree with Basten JA.

S G CAMPBELL J: I agree with the orders proposed by Basten JA and with his Honour's reasons.

**********

Decision last updated: 03 August 2012

Medium Neutral Citation:	Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162
Hearing dates:	28 June 2012
Decision date:	03 August 2012
Before:	Basten JA at [1]; Price J at [99]; S G Campbell J at [100]
Decision:	(1) Dismiss the appeal against conviction in respect of counts 8-11. (2) Refuse leave to appeal against conviction on counts 1-7 and 12. (3) Grant leave to appeal against the sentences imposed in respect of counts 8-11. (4) Allow the appeal in respect of the sentences on counts 8-11; quash the sentences imposed in the District Court and re-sentence the appellant to the following terms: (a) with respect to count 8, a term of imprisonment for three years commencing on 8 March 2011 and terminating on 7 March 2014; (b) in respect of count 9, a term of three years imprisonment commencing on 8 March 2012 and terminating on 7 March 2015; (c) with respect to count 10, a term of imprisonment of three months commencing on 8 March 2013 and terminating on 7 June 2013; (d) on count 11, a term of imprisonment of three years commencing on 8 March 2013 and terminating on 7 March 2016. (5) In respect of the sentences imposed in the District Court on counts 1-7 and 12, and the further sentences imposed by these orders on counts 8-11, confirm the non-parole period imposed in the District Court, being four years commencing on 8 September 2009 and expiring on 7 September 2013. (6) The earliest date on which the appellant is eligible for conditional release is therefore 7 September 2013.
Catchwords:	CRIMINAL LAW - appeal - conviction - encouragement of sexual intercourse with a child under 16 years of age outside Australia - whether person encouraged must be Australian citizen or resident - discussion of XYZ v The Commonwealth [2006] HCA 25; 227 CLR 532 - Crimes Act 1914 (Cth), ss 50AD, 50BA and 50DB CRIMINAL LAW - appeal - conviction - importation of child pornography; use of internet to access child pornography - defendant alleged that he did not have access to the computer at the time of the offence - whether trial judge erred in refusing to direct jury to acquit if evidence might reasonably have been true - whether miscarriage of justice in the circumstances of the case CRIMINAL LAW - appeal - sentence - encouragement of sexual intercourse with a child under 16 years of age outside Australia - whether sentence manifestly excessive - whether offending more serious when encouraged conduct occurred - Crimes Act 1914 (Cth), ss 50BA and 50DB CRIMINAL LAW - appeal - sentence - extra-curial punishment - value of appellant's business declined after arrest - whether allowance should be made for consequences common to all custodial sentences - whether greater allowance should be made for wealthy or well-known offenders - whether distinction should be made between consequences for offender and for associates CRIMINAL LAW - appeal - sentence - sentencing for Commonwealth offences - offences involved overlapping elements of criminality - sentencing judge imposed separate concurrent identical sentences for each offence - whether offender sentenced more than once for common elements - discussion of Pearce v The Queen [1998] HCA 57; 194 CLR 610 - Crimes Act 1914 (Cth), s 19 CRIMINAL LAW - procedure - application to split closing address - prosecutor not consenting - whether refusal led to miscarriage EVIDENCE - prosecution relied on tendency evidence without giving notice - whether evidence also relevant to circumstantial case in relation to another offence - whether necessary to distinguish circumstantial evidence from tendency evidence - whether direction could have assisted jury - whether leave should be granted to rely on ground not objected to at trial - Evidence Act 1995 (NSW), s 97; Criminal Appeal Rules (NSW), r 4
Legislation Cited:	Acts Interpretation Act 1901 (Cth), s 13 Constitution, s 51 (xxix) Crimes Act 1914 (Cth), ss 5, 6, 7A, 16A, 19, 50AA, 50AD, 50BA, 50BC, 50CA, 50CB, 50DA, 50DB; Pt IA; Divs 1, 2, 3, Pt IIIA Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 (Cth) Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A Criminal Appeal Act 1912 (NSW), s 5 Criminal Code Act 1995 (Cth), s 474.19 Criminal Appeal Rules, r 4 Customs Act 1901 (Cth) Evidence Act 1995 (NSW), s 97 Judiciary Act 1903 (Cth), s 68
Cases Cited:	Beckwith v The Queen [1976] HCA 55; 135 CLR 569 Director of Public Prosecutions v Hills (No 8) [2010] VSC 596 Einfeld v The Queen [2010] NSWCCA 87; 200 A Crim R 1 Johnson v The Queen [2004] HCA 15; 78 ALJR 616 Kaye v The Queen [2004] WASCA 227 KRM v The Queen [2001] HCA 11; 206 CLR 221 Pearce v The Queen [1998] HCA 57; 194 CLR 610 Porter v The Queen [2008] NSWCCA 145 R v Gent [2005] NSWCCA 370; 162 A Crim R 29 R v Hammoud [2000] NSWCCA 540 R v Knight [2005] NSWCCA 253; 155 A Crim R 252 R v Lee [2000] WASCA 73; 112 A Crim R 169 R v Merrin [2007] NSWCCA 255; 174 A Crim R 100 R v Pearson [2005] NSWCCA 116 R v Percival [2001] NSWCCA 429 R v Ruppert (unrep, County Court of Victoria, 19 August 1998) R v Van Der Zyden [2012] QCA 89 R v Wicks [2005] NSWCCA 409 Toben v Jones [2003] FCAFC 137; 199 ALR 1 XYZ v The Commonwealth [2006] HCA 25; 227 CLR 532
Category:	Principal judgment
Parties:	John Eric Cargnello (Appellant) Director of Public Prosecutions (Cth) (Respondent)
Representation:	Counsel: M Thangaraj SC/P D Lange T A Game SC/M J Johnston (Respondent) Solicitors: Watsons Solicitors (Appellant) Commonwealth Director of Public Prosecutions (Respondent)
File Number(s):	CCA 2007/16067
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2009-12-21 00:00:00 Before: Toner DCJ File Number(s): DC 2007/11/0694