Carter v The Queen
[2020] VSCA 13
•11 February 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0023
| STEVEN WILLIAM CARTER | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WHELAN, PRIEST and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 6 February 2020 |
| DATE OF JUDGMENT: | 11 February 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 13 |
| JUDGMENT APPEALED FROM: | DPP v Carter (Unreported, County Court of Victoria, Judge Quin, 15 November 2019) |
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CRIMINAL LAW – Appeal – Sentence – Indecent act with child under 16 – Production of child pornography – Possessing child pornography – Failure to comply with reporting obligations under Sex Offenders Registration Act 2004 – Plea of guilty – Significant delay between arrest and sentencing – Applicant sentenced to 5 years’ imprisonment with non‑parole period of 3 years – Applicant in consensual sexual relationship with first complainant – First complainant aged 17 at time of offending – Second complainant aged 15 years and 11 months at time of offending – Images and videos taken with consent of complainants – Whether sentence manifestly excessive – ‘Lower level’ of objective gravity – Appeal allowed – Applicant resentenced to three years’ imprisonment.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S N Andrianakis | Victoria Legal Aid |
| For the Crown | Mr P L Bourke | Ms A Hogan, Solicitor for Public Prosecutions |
WHELAN JA
PRIEST JA
WEINBERG JA:
On 28 October 2019, the applicant, Steven Carter, pleaded guilty in the County Court at Melbourne to the charges as set out in the table below. He was sentenced as follows:
Charge
Offence
Maximum
Sentence
Cumulation
1 Failure to comply with reporting obligations [s 46(1) Sex Offenders Registration Act 2004] 5 years 3 months’ imprisonment — 2 Produce Child Pornography [s 68(1) Crimes Act 1958] 10 years 2 years and 6 months’ imprisonment 2 years 3 Indecent act with a child under 16 [s 47(1) Crimes Act 1958] 10 years 3 years’ imprisonment Base 4 Possess child pornography [s 70(1) Crimes Act 1958] 10 years 6 months’ imprisonment — Total Effective Sentence: 5 years Non-Parole Period: 3 years Pre-Sentence detention: 1001 days Section 6AAA statement: 7 years’ imprisonment with a non-parole period of 5 years Other orders: Applicant sentenced as a serious sexual offender in regards to charges 2, 3 and 4 pursuant to s 6F of the Sentencing Act 1991.
He is to remain on the sex offenders register for life.
Forfeiture and forensic sample orders.
The applicant is out of time to bring an application for leave to appeal against sentence. The delay was not great and has been explained. The merits of the proposed appeal are such as to warrant the required extension of time in which to seek leave to appeal against sentence.
The applicant seeks leave to appeal against sentence on the following grounds:
Ground 1:The learned sentencing judge erred in placing reliance on inadmissible material in the Victim Impact Statement, in a manner that was unfairly prejudicial to the applicant.
Ground 2:The sentence imposed in respect of charges 2 and 3, and the cumulation between the two charges was manifestly excessive when having regard to:
(a) The objective seriousness of the offences;
(b)The circumstances of the [applicant’s] remand and the associated delay in finalisation of the matter.
For the reasons that follow, we would grant leave on Ground 2 to appeal against sentence, and allow the appeal instanter. We would set aside the sentences imposed below, and substitute individual sentences and orders for cumulation as noted later in these reasons for judgment. The net result would be a total effective sentence of 3 years’ imprisonment. In the particular circumstances of this case, we would not fix a non-parole period.
Circumstances surrounding the commission of the various offences
The applicant was born on 4 July 1973 and is now aged 46. On 17 November 2008, at the La Trobe Valley County Court, he was sentenced as a serious sexual offender, pursuant to s 6F of the Sentencing Act 1991 (‘Sentencing Act’). Pursuant to s 34 of the Sexual Offenders Registration Act 2004 (‘SORA’), the applicant was required to comply with reporting obligations for life.
On 25 April 2015, the applicant had an annual interview with his compliance manager. He did not declare any children (meaning child under the age of 18) in general residence, or with whom he had regular contact. On 27 February 2016, the applicant had a further annual interview with his compliance manager. On that occasion too, he did not declare any children in general residence, or with whom he had regular contact.
With regard to charges 1 and 2, the first complainant in this matter was a young girl aged 17 who was given the pseudonym ‘Mia Pollock’ by the sentencing judge. She was born on 12 December 1997. The applicant had known her from a very young age. He was friends with her father.
In April 2015, Ms Pollock gave birth to a daughter. About a week later, the applicant began to take a sexual interest in her and, ultimately, established an intimate relationship with her. These facts gave rise to charge 1, the failure to comply with reporting obligations. This was described as a ‘rolled-up’ charge.
In the course of that relationship, the applicant had contact with Ms Pollock’s daughter. This occurred when the applicant accompanied Ms Pollock to supervised contact visits at the home of the baby’s father. The applicant did not report either his contact with Ms Pollock, or with her baby daughter, to his compliance manager (part of charge 1, failure to comply with reporting obligations).
On 12 July 2015, the applicant took eight sexually explicit photographs of Ms Pollock (part of charge 2, producing child pornography). These included two photographs of the applicant penetrating her vagina with his penis.
On 1 October 2015, the applicant took 36 sexually explicit photographs of Ms Pollock, all of them involving her in the use of a sex toy (part of charge 2, producing child pornography).
On 7 November 2015, the applicant took a further 29 sexually explicit photographs and made three sexually explicit videos of Ms Pollock, all of which involved her in the use of a sex toy to penetrate her vagina. He also took one video of his having used a sex toy to penetrate her vagina (part of charge 2, producing child pornography).
On 22 November 2015, the applicant took four sexually explicit photographs of Ms Pollock (part of charge 2, producing child pornography). In all of them, she was naked, with her hands and mouth being duct taped.
On 27 December 2015, the second complainant, who the judge referred to as ‘Mackenzie Adair’, was visiting Ms Pollock at the applicant’s home. The two of them were friends. Ms Adair was born on 22 January 2000, and accordingly, was aged 15 years and 11 months at the time the alleged offending involving her as a complainant. The applicant was present, and all three had consumed alcohol.
Ms Pollock and Ms Adair went into the applicant’s bedroom and became sexually intimate with each other. The applicant entered the bedroom and joined them. He began groping Ms Adair’s breasts, and touched her vagina. This conduct gave rise to charge 3, indecent act with a child under 16.
During the course of this incident, the applicant photographed Ms Pollock performing oral sex upon Ms Adair (part of charge 2, producing child pornography).
The applicant did not report this contact with Ms Adair to his compliance manager (part of charge 1, failure to comply with reporting obligations).
On 16 February 2017, police executed a search warrant at the applicant’s home. They seized a number of electronic devices, including the applicant’s computer. These were analysed, and 77 pornographic images and three videos of a child (being Ms Pollock), were located. This gave rise to charge 4, possessing child pornography.
On the following day, the applicant was intercepted whilst driving. His mobile phone was seized. It was subsequently analysed and found to contain five pornographic images of Ms Pollock, which he had sent to her (part of charge 4, possessing child pornography).
Background
The applicant was remanded in custody on 17 February 2017. He remained in custody because he was originally charged with a number of additional sexual offences, including penetration of a child under 16 years of age. Those additional charges involved two unrelated complainants. Ultimately, the applicant was acquitted on a number of those additional charges, and the Crown had discontinued the remainder. Effectively, therefore, he had some 1,001 days pre‑sentence detention to call in aid by the time he came to be sentenced for these matters.
By virtue of the applicant’s previous convictions, he was to be sentenced as a serious sexual offender, in relation to charges 2, 3, and 4.
Sentencing remarks
The sentencing judge noted that the circumstances of the applicant’s offending were set out in an amended summary of prosecution opening dated 25 October 2019. Her Honour observed that the applicant had previously been dealt with, in 2008, on a charge of committing an indecent act with, or in the presence of, a child under 16, and one charge of attempting to take part in an act of sexual penetration of a child under 16. Pursuant to the SORA, the length of reporting period imposed was life.
Having then summarised, briefly, the facts surrounding each of the four charges to which the applicant had pleaded guilty, the judge observed that she had received a victim impact statement from Ms Pollock. That statement had come in after the plea had been completed, which was itself unfortunate. However, the parties were given the opportunity to make written submissions regarding its contents.
It is sufficient for present purposes to say simply that the statement was of little, if any, significance so far as sentencing was concerned. It gave no indication of the actual effects upon Ms Pollock of having been photographed by the applicant in the course of engaging in various sexual acts. There was nothing to suggest that the relationship between the applicant and Ms Pollock was anything other than consensual. At most, it pointed to what would have been obvious in any event, the power imbalance between a man in his 40s, and a girl aged 17.
The judge then set out the applicant’s personal circumstances. She noted that he had been adopted as an infant, and had left school at 15. He had worked consistently as an interstate truck driver for a number of years and planned to return to that occupation once he had completed the sentence that the judge would impose.
The applicant has three daughters, one of whom was aged 14 at the time of sentencing. That child has a number of serious health issues, and lives with her cousins. His other two daughters have maintained contact with the applicant and have visited him in custody.
The judge noted that it was submitted on behalf of the applicant that his time in custody had been more burdensome given that he was originally charged with more serious offences against children, none of which, as we have said, were ultimately sustained. The judge found that the applicant’s lengthy period in custody had been made more burdensome by the stress and worry regarding those matters.
Her Honour accepted that the applicant’s plea of guilty had utilitarian value, having saved both Ms Pollock and Ms Adair from the ordeal of having to give evidence. There had been a straight hand-up brief and, therefore, there had been no need for a committal hearing requiring the attendance of witnesses. The judge accepted that the applicant’s plea of guilty was evidence of remorse.
When dealing with the objective gravity of the various offences, the judge found that charges 2 and 4 were at the ‘lower end’ of seriousness for the type of offending in question. The applicant had been in a legal, consensual, relationship with Ms Pollock, who was aged 17 at the time. Nonetheless, so far as the production of child pornography was concerned, the age discrepancy was significant. Although Ms Pollock had some form of intellectual disability, there was nothing to suggest that the applicant was aware of the exact nature of her problem and, therefore, this would not be taken into account as an aggravating factor, so far as his moral culpability was concerned.
Ms Adair had not filed a victim impact statement. Although she was legally below the age of consent, she had been almost 16 when the applicant indecently assaulted her, and photographed her having sexual relations with Ms Pollock. There was nothing to suggest that Ms Adair had not, in fact, consented to what took place.
The judge then referred to the applicant’s prior convictions for sexual offending against a child. The offences in question all occurred in 2006, and resulted in a term of imprisonment of 3 years and 6 months with a non-parole period of 2 years and 2 months. Given these prior convictions, the judge said that specific deterrence was an important sentencing consideration. So too were general deterrence, just punishment, and denunciation. As previously indicated, the applicant was to be sentenced as a serious sexual offender in respect of charges 2, 3, and 4.
Her Honour noted that the applicant’s counsel had conceded that no sentence other than one of actual imprisonment would be appropriate. However, it was submitted that any such sentence should be moderated by reference to the various mitigating factors that had been present.
Applicant’s submissions
The applicant, quite properly, focused upon Ground 2 in support of this application. It was submitted that the sentences imposed on charges 2 and 3 were each manifestly excessive, having regard to the low level offending involved.
In that regard, it was noted that there was some irony in the situation where the applicant was perfectly entitled, as a matter of law, to engage in sexual relations with Ms Pollock, given that she was over 16. Whatever might be thought of the morality of such conduct, there was no taint of illegality associated with it.
That produced the paradoxical result that the applicant could have sex with Ms Pollock, but not photograph her in the course of doing so. It made no difference that she consented to being so photographed (assuming, as we must, that this was in fact so). It also made no difference that she was almost 18 when the photographs and videos were produced. Nonetheless, so it was submitted, this particular offending had to be viewed as, at the very least, ‘lower end’ conduct in terms of objective gravity.
Much the same could be said of the touching of Ms Adair. She was within a few weeks of turning 16 when the applicant had groped her breasts, and touched her on the outside of her vagina. She appeared, factually at least, to have consented to that conduct, though of course, she could not, as a matter of law, give consent to indecent touching of that kind. It was said to be significant that she had not filed any victim impact statement.
It was acknowledged that each of these two offences warranted a term of imprisonment. It was submitted, however, that a term of 2 years and 6 months on charge 2, and 3 years on charge 3 were manifestly excessive. It was also submitted that the cumulation of 2 years of the sentence of charge 2 upon the base sentence on charge 3 was manifestly excessive, as was the total effective sentence of 5 years with a non-parole period of 3 years.
Respondent’s submissions
The respondent, very fairly, acknowledged that in terms of objective gravity, both the offences that fell within charge 2, and charge 3, were at the lower end of the scale of objective gravity. It was not disputed that the sentences imposed were severe, and difficult to reconcile with both some of the comparator cases to which we were referred, and the statistics revealed by the ‘Sentencing Snapshot’ for indecent act with a child under 16 and related offences (including the production of child pornography).
In the hearing, counsel for the respondent struggled to make submissions against a conclusion that a sentence of 5 years’ imprisonment for offences of this relatively low level of objective gravity is not wholly outside the range of what would be reasonable in the circumstances of this case.
Conclusion
Had Ms Pollock been just a few months older, there would have been no offence at all in the applicant’s having photographed them in the course of their sexual relationship. That fact, and the fact that, plainly, she was, at a factual level, a willing participant not just in the sexual relationship, but also in having the photographs taken indicates that, though a term of imprisonment is certainly appropriate for the applicant’s conduct in photographing a child, under the age of 18, in breach of the statute, it need not extend to a term of 2 years and 6 months’ imprisonment. In our view, charge 2 warranted no more than 18 months’ imprisonment.
As far as charge 3 is concerned, it is difficult to see how a sentence of 3 years’ imprisonment can be justified for the relatively low level offending involved. The complainant was within just a few weeks of being able to give consent, and at a factual level, made no complaint at all about what was occurring. The inference may reasonably be drawn that she consented to it.
That does not mean that the applicant’s conduct is to be condoned. It certainly warrants condemnation, and punishment. However, a total effective term of 5 years’ imprisonment seems, to us, to be excessive, even having regard to the aggravating features of this offending.
We would substitute a term of 2 years’ imprisonment on charge 3. We would order that 12 months of the sentence imposed on charge 2 be cumulated upon a base sentence of 2 years’ imprisonment on charge 3. This makes a total effective sentence of 3 years’ imprisonment. We would affirm the sentences and orders for cumulation made below on charges 1 and 4, and also affirm all other ancillary orders.
Section 11 of the Sentencing Act makes provision for the fixing of a non‑parole period. In the ordinary course, we would have fixed a non-parole period in respect of the 3 year total effective sentence that we now impose. However, the applicant has already served almost the entirety of that 3 year total effective sentence, and there is absolutely no point in fixing a non-parole period which has already been well spent. The applicant will have completed his entire sentence long before the Adult Parole Board could get around to considering whether he should be released on parole, at which point there would be no parole period for him to serve.
Accordingly, we decline to fix a non-parole period. We do so, in the unusual circumstances of this case, because of the nature of the offences in question in accordance with the requirements of s 11. This Court should not, in any event, make orders that are pointless, and that involve circumstances that are, effectively, moot.
We state, in accordance with s 6AAA of the Sentencing Act, that had the applicant not pleaded guilty to these offences, we would have imposed a total effective sentence of 5 years’ imprisonment with a non-parole period of 3 years.
We note that the total period of pre-sentence detention, not including this day, is 1,089 days, and order that that figure be entered into the records of the Court.
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