Curle v The King

[2024] NSWCCA 117

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Curle v R [2024] NSWCCA 117

Hearing dates:

19 June 2024

Date of orders:

08 July 2024

Decision date:

08 July 2024

Before:

Bell CJ at [1];
Stern JA at [2];
Button J at [69].

Decision:

(1) Leave to appeal against sentence granted.

(2) Appeal dismissed.

Catchwords:

CRIME – Appeals – appeal against sentence – where total effective sentence of 29 months ordered – where combined period of custodial sentence and recognizance release order exceeded 3 years – whether sentencing judge erred having regard to the proper construction of Crimes Act 1914 (Cth), s 19AC

CRIME – Appeals – appeal against sentence –impact of any period of custody on the applicant’s rehabilitation – where custodial sentence imposed – whether the sentencing judge erred having regard to Crimes Act 1914 (Cth), s 16A(2AAA)

CRIME – Appeals – appeal against sentence – whether manifest excess

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW), s 6(1)

Crimes Act 1914 (Cth), ss 16A, 16(1), 19AC, 20(1)(b)

Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth)

Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Criminal Code Act 1995 (Cth), ss 474.22A(1), 474.22(1)

Cases Cited:

Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41

He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95

Mulato v R [2006] NSWCCA 282

New South Wales v Cornwall [2023] NSWSC 278; (2023) 375 FLR 459

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

State of NSW v NW [2019] NSWSC 415

Xu v R [2023] NSWCCA 93

Texts Cited:

Explanatory Memorandum to the Crimes Legislation Amendment Bill (No 2) 1989 (Cth)

Category:

Principal judgment

Parties:

Robert Curle (Applicant)
Rex (Respondent)

Representation:

Counsel:
S Kluss (Applicant)
C Tran with D Morris (Respondent)

Solicitors:
Australian Criminal Law Group (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2022/68192

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

09 June 2023

Before:

Baker DCJ

File Number(s):

2022/68192

HEADNOTE

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

The applicant pleaded guilty to three offences contrary to ss 474.22A(1) and 474.22(1) of the Criminal Code Act 1995 (Cth), namely possessing child abuse material obtained using a carriage service, using a carriage service to access child abuse material and using a carriage service to transmit child abuse material.

On 9 June 2023 the applicant was sentenced to a total effective sentence of imprisonment of 29 months, expiring on 8 November 2025. The sentencing judge made a recognizance release order, as required under s 19AC(1) of the Crimes Act 1914 (Cth) (the “Crimes Act”), commencing on 8 March 2025 for a period of 18 months and expiring on 7 September 2026.

The applicant sought leave to appeal against his sentence on three grounds. The issues raised by those grounds were:

1. Whether, in determining whether the sentence or sentences imposed exceeded a period of 3 years for the purposes of s 19AC(1) of the Crimes Act, the sentencing judge was required to take into account the period of the recognizance release order;

2. Whether the sentencing judge erred when applying s 16A(2AAA) of the Crimes Act; and

3. Whether the sentence imposed on the applicant was manifestly excessive.

The Court (Stern JA, Bell CJ and Button J agreeing) held, granting leave to appeal but dismissing the appeal:

As to ground 1:

1. The language of s 19AC(1) of the Crimes Act is inconsistent with a construction of s 19AC(1)(b) where the period of a recognizance release order is be taken into account in determining whether the sentence or sentences imposed exceed a period of 3 years for three reasons. First, the operation of s 19AC(1) of the Crimes Act requires a sentencing judge to determine whether or not the sentence or sentences do not exceed 3 years before considering whether or not to impose a recognizance release order. Second, it is clear from the terms of s 19AC(1) of the Crimes Act that Parliament has drawn a distinction between the sentence or sentences imposed for a federal offence on the one hand and the recognizance release order on the other. Third, s 19AC(1)(b) of the Crimes Act directs attention to the period of the aggregate federal sentence or sentences which are defined in s 16(1) of the Crimes Act. Section 16(1) makes it clear that it is the sentence or aggregate sentences of imprisonment, not the period of a recognizance release order, that is relevant for the purposes of s 19AC(1)(b): [40]-[44].

2. This conclusion is unaffected by authorities considering the relevance of the period of a recognizance release order to the requirement under s 6(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) that an application under that Act cannot be made until the last nine months of the offender’s current custody or supervision. Those cases say nothing about whether the period of a recognizance release order should be construed as part of the period of sentence for the purposes of s 19AC(1) of the Crimes Act: [47].

   State of NSW v NW [2019] NSWSC 415; New South Wales v Cornwall [2023] NSWSC 278; (2023) 375 FLR 459, distinguished.

As to ground 2:

1. Section 16A(2AAA) of the Crimes Act does not require that the court identify how the period of imprisonment imposed takes into account the objective of rehabilitation. Nor is it inconsistent with s 16A(2AAA) to impose a custodial sentence in circumstances where this may have an adverse impact upon an offender’s rehabilitation: [52].

2. The sentencing judge did not err in applying s 16A(2AAA) of the Crimes Act. The sentencing judge expressly considered s 16A(2AAA) and was aware of its terms, including that it requires that the court consider the objective of rehabilitating the offender when determining the sentence to be passed or order to be made. The sentencing judge clearly took that objective into account in the sentencing exercise: [50]-[51].

As to ground 3:

1. The sentence imposed on the applicant was not manifestly excessive. Having regard to the findings of the sentencing judge, none of which were challenged, the sentences imposed were well within the sentencing judge’s discretion as was the degree of accumulation: [57], [62].

   Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221; He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95; Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41, considered.

JUDGMENT

1. BELL CJ: I agree with Stern JA.

2. STERN JA: On 2 December 2022 the applicant, Robert Curle, pleaded guilty to the following offences under the Criminal Code Act 1995 (Cth), each carrying a maximum penalty of 15 years’ imprisonment:

1. Sequence 1: on 9 March 2022 did possess child abuse material obtained using a carriage service contrary to s 474.22A(1).

2. Sequence 2: between 24 February 2022 and 9 March 2022, did use a carriage service to access child abuse material contrary to s 474.22(1).

3. Sequence 3: between 23 January 2022 to 8 March 2022 did use a carriage service to transmit child abuse material contrary to s 474.22(1).

3. On 9 June 2023 the applicant was sentenced to a total effective sentence of imprisonment of 29 months, expiring 8 November 2025, comprising the following sentences:

Sequence:	Length:	To date from:	Expiring:
1	20 months’ imprisonment	9 December 2023	8 August 2025
2	20 months’ imprisonment	9 March 2024	8 November 2025
3	24 months’ imprisonment	9 June 2023	8 June 2025

4. As required under s 19AC(1) of the Crimes Act 1914 (Cth) (absent satisfaction under s 19AC(4) that it is not appropriate to do so) the sentencing judge also set a recognizance release order. That order commences on 8 March 2025, with the recognizance set in the sum of $1,000 for a period of 18 months expiring on 7 September 2026 with conditions that:

“1.    The offender be of good behaviour;

2.    The offender be subject to the supervision of officers of Community Corrections and to obey all reasonable directions of that service;

3.    The offender obey any requirement of Community Corrections, that he permit inspection of any mobile phone owned or possessed by him and to provide access to any data on such mobile phone;

4.    The offender accept any direction of Community Corrections that he attend any sex offenders treatment program and/or that he be evaluated for acceptance or accept treatment for any mental health disorder, including depression;

5.    The offender is not, during that period, to travel interstate or overseas without written permission of Community Corrections.”

5. The applicant seeks leave under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against his sentence on the following proposed grounds:

1. His Honour erred in the structure of the sentence imposed pursuant to s 19AC(1) and s 20(1)(b) of the Crimes Act;

2. His Honour failed to properly consider the provisions of s 16(2AAA) of the Crimes Act; and

3. The sentence imposed was manifestly excessive and another sentence is warranted at law.

6. I would dismiss this appeal. However, consistent with the observations of N Adams J in Xu v R [2023] NSWCCA 93 at [40] (Garling and Hamill JJ agreeing), in order to achieve finality, I would grant leave to appeal.

Remarks on sentence

7. None of the sentencing judge’s factual findings are challenged on appeal.

The facts of the offences

Sequence 1: possession of child abuse material on 9 March 2022

8. Sequence 1 related to materials found on the applicant’s desktop computer, Telegram messages saved on the applicant’s mobile phone and further materials saved on the SD card of his mobile phone. In an examination of the desktop computer hard drive on 31 March 2022, police located a total of 619 video files and 40 image files all categorised as Interpol category one. The age of the child victims ranged from 2 to 13 years old. They were predominantly female. The image files depicted real prepubescent child victims and the sex acts included penetrative sex. Two examples of the video files included forced penetrative sex acts involving real children, including of a very young child. Also saved on the hard drive of the desktop were two written stories constituting child abuse material involving child victims, which had been accessed and downloaded by the applicant on 28 October 2021.

9. As to the Telegram messages the sentencing judge observed:

“During the search warrant [on 9 March 2022], police reviewed 254 Telegram chat messages which had been saved by the offender in the Telegram application on his mobile phone. Each of the saved messages contained at least one image or video file. The files included the following;

1. 60 child abuse material images which police categorised as Interpol category one. The age of the child victims appeared to range from two to 13 years old, they were all female. These child victims were either displaying genitalia or engaged in sex acts with other child victims or adult males. The sex acts included adult penile child anal penetration, adult penile child vaginal penetration, and child oral sex;

2. 384 child abuse material video files which police categorised as Interpol category one. The age of the child victims appeared to range from two to 13 years old, they were predominantly female. These child victims were either displaying genitalia or engaged in sex acts with other child victims or adult males. The sex acts included adult penile child anal penetration, adult penile child vaginal penetration, and child oral sex. One file was child penile child vaginal penetration.

Three of the video files were files received by the offender from Pablo Rodriguez during the chat referred later in my judgment in response to the following message sent by the offender, “hello there, I love your forced videos”.” (Emphasis in original).

10. The video files included forced penetration of a prepubescent female.

11. The files found on the mobile phone SD card were described by the sentencing judge as follows:

“During a further review of the offender’s phone, two Interpol category one video files were found to be saved in the downloads folder of the SD card associated with the mobile phone. The first had been downloaded on 28 January 2022, and the second on 13 February 2022.”

12. Again, the videos included forced sexual acts on prepubescent females.

13. Whilst the sentencing judge referred to Interpol categorisation, it should be noted that the Interpol categorisation system does not give a gradation based upon the gravity of the child abuse depicted.

Sequence 2: accessing child abuse material between 24 February and 9 March 2022

14. As recorded by the sentencing judge:

“An examination of the offender’s mobile phone located a total of 1,333 child abuse material files which had been downloaded by the offender from the Telegram server between 24 February 2022 and 9 March 2022 and stored temporarily on his device as a result of the offender opening them through the Telegram application. All files received were categorised as Interpol category one.”

15. As to these materials, the sentencing judge observed:

“The child victims ranged from two to 13 years of age and were predominantly female child victims. The files depicted the victims either displaying genitalia or engaged in sex acts with other child victims or adult males. The sex acts included adult penile child anal penetration, adult penile child, vaginal penetration, child penile child vaginal penetration, and child oral sex...”.

16. Again, some of the videos involved forced sexual acts.

Sequence 3: transmitting child abuse material between 23 January and 8 March 2022

17. As described by the sentencing judge, sequence 3 related to:

“Further police examination of the Telegram application on the offender’s mobile phone revealed a number of conversations in which the offender under the username, “Robert”, transmitted child abuse material video and/or image files to the other participants. Some of the image files contained multiple child abuse material images, and all contained at least one Interpol category one image.

An examination of the conversations confirmed that the offender transmitted a total of 114 child abuse material files to 11 different recipients.

The child victims ranged in age from two to 13 years old. They were predominantly female.”

18. The sentencing judge set out the details of each of the “chats”, i.e., the messages, exchanged between the applicant and other individuals on the Telegram application. These included exchanges of sexually explicit and child abuse material and in three of the chats, requests by the applicant for “child pornography” and “forced videos”, including a comment by the applicant: “I love your forced videos”.

The applicant’s subjective case

19. Given the grounds of appeal it is unnecessary to set out the full detail of the applicant’s subjective case, a summary suffices.

20. At the time of his offending, the applicant was 53 years old and had been married for over 20 years. He has no children. He was employed operating a charity organisation which had one employee at the time of the sentence proceedings.

21. A corrective services assessment report prepared by Brian Pham, a community corrections officer, assessed the applicant as a tier two low risk of reoffending.

22. The applicant relied upon a treatment report of Graeme Randall, a psychologist, dated 29 March 2023 and an assessment report of Dr Olav Nielssen, a psychiatrist, dated 29 March 2023. The applicant, his wife, and Mr Randall also gave evidence at the sentence proceedings.

23. The applicant’s history included physical abuse at the hands of this stepfather (who also abused his mother) until his stepfather left the home when the applicant was about 12 years old. The sentencing judge noted Mr Randall’s opinion that the applicant’s “use of adult pornography was a coping mechanism that likely further prevented him from engaging and developing deep intimacy with his partners.”

24. Dr Nielssen diagnosed the applicant as having a depressive illness in partial remission, and a paraphilic disorder. The latter was in the form of a preference for voyeuristic sexual behaviour and the development of an attraction to prepubescent females. Dr Nielssen’s opinion was that, although having an addiction to child abuse material increases the probability of reoffending, other relevant factors such as the applicant reporting losing interest in the material, having had a positive response to treatment with Mr Randall, and the ongoing support from his wife, were protective against reoffending. Dr Nielssen said that imprisonment would inevitably exacerbate any symptoms of depression and anxiety.

25. Mr Randall had been treating the applicant since 18 May 2022. In evidence, Mr Randall said that the program of treatment generally takes between one and two years, and that the applicant “was not even halfway through the program”. He had found the applicant’s engagement in the sessions to be remarkable. His view was that the applicant’s risk of reoffending was very low. As such, Mr Randall reported that he did not believe that the applicant would be able to access treatment in custody. Mr Randall was of the opinion that any interruption to the applicant’s treatment caused by a custodial sentence would likely be detrimental to his long term recovery. He was also of the opinion that any custodial sentence would add to the applicant’s experience of trauma from childhood and reinforce his behaviour of isolation, as well as his previous maladaptive coping mechanisms, such as sexual behaviour.

Objective seriousness

26. The sentencing judge found that the offences in sequences 1 and 2 constituted a particularly serious example of the offending of its type. His Honour found that the offence in sequence 3 was a serious example of offending of this type.

Moral culpability and Bugmy considerations

27. The sentencing judge noted the applicant’s “somewhat traumatic childhood during which he experienced early exposure to alcohol, domestic violence, interrupted school attendance, and a transient period of homelessness.” As to a causal connection, the sentencing judge found:

“I am satisfied the offender’s childhood experience does shed light and explain his offending to some extent. It explains how he utilised adult pornography as a coping mechanism, and that this then served as “a gateway” to his later viewing of child abuse material. However, I agree with the Crown submission that it is not a strong correlation and says little about the offender’s moral culpability when he was plainly aware of what he was doing that was wrong and proceeded to repeatedly do this. Nonetheless, I am satisfied that the offender’s moral culpability for the offences is reduced to some degree.”

28. In this context, the sentencing judge also took into account Dr Nielssen’s diagnosis of paraphilic disorder, finding “this diagnosis provides an explanation for his offending and will reduce, to some extent, his moral culpability. However, it heightens the need for specific deterrents [sic]”. The sentencing judge also took into account the applicant’s diagnosis of depression observing “it also remains a relevant consideration, both [to] the offending and making any custodial sentence more onerous.”

Other matters

29. The applicant was of good character with no relevant criminal history.

30. The sentencing judge afforded a 25% discount for the plea of guilty in respect of each of the three charges.

31. As to remorse and cooperation the sentencing judge observed:

“The offender has demonstrated remorse through his admissions and guilty pleas. The offender also gave evidence, which I accept, that through his treatment, he has gained a greater insight into the harm done by his offending…”.

32. The sentencing judge was satisfied that the applicant had a low risk of reoffending and reasonable prospects of rehabilitation.

32. The sentencing judge then turned to s 16A(2AAA) of the Crimes Act:

“I turn to s 16A(2AAA) of the Crimes Act 1914, which requires the Court, when making order of or considering the length of any sentence, to have regard to the objective of rehabilitating the offender, including imposing conditions or treatment options.

Whether there is a sentence of immediate imprisonment or whether the Court ultimately suspends any term of imprisonment, any condition of release will include a condition that the offender will be supervised by the Department of Community Corrections, and such supervision includes compliance with all reasonable directions as to ongoing treatment and counselling, including continuing with the treatment by Mr Randall or some other suitable qualified health professional.”

34. The sentencing judge also took into account hardship caused by the COVID-19 pandemic.

The sentencing judge’s determination as to sentence

35. The sentencing judge was satisfied that no sentence other than imprisonment was appropriate in all the circumstances of the case.

36. As to the contention of the applicant’s counsel that, having regard to the damage to the applicant’s treatment which would be caused by a period in custody, immediate release should be ordered as part of a recognizance release order under s 20(1)(b) of the Crimes Act, the sentencing judge reiterated that a sentence of full-time imprisonment was required:

“I have had close regard to the matters raised…being the offender’s background, his psychosocial history or treatment history, and the possible detrimental impact on interruption to his treatment it may cause.

However, I am not satisfied that these factors amount to exceptional circumstances for the purpose of s 20(1)(b)(ii).

In my view, a sentence of full-time imprisonment is required in order to meet the seriousness and gravity of the offending, and also having had regard to the subjective features of the offender. However, I will order that a term of imprisonment be suspended after a period of full-time custody. A full-time custody component of the sentence will reflect the minimum period that the offender should receive in custody.

Having regard to all the circumstances of the case, this will enable the offender to renew his community-based treatment after that period of custody, which will best meet the need for rehabilitation, and through this, best achieve the protection of the community and the need for specific deterrence.”

Ground 1: misapplication of s 19AC of the Crimes Act

37. The applicant’s contention in ground 1 is that the sentencing judge was not permitted under s 19AC of the Crimes Act to impose a custodial sentence and recognizance release order, the combined period of which exceeded 3 years. In this regard the applicant relies upon the terms of s 19AC(1)(b) set out below, in particular, that the obligation to make a recognizance release order is predicated upon the Court having imposed a federal sentence or sentences that do not (whether alone or in aggregate) exceed 3 years. Given that the effect of the sentencing judge’s determination is that the applicant has to remain in full-time custody for 21 months and is then subject to a recognizance release order for a further 18 months, the applicant submits that the sentencing judge erred in law.

38. The resolution of this ground turns on the proper construction of s 19AC of the Crimes Act.

39. Subsection 19AC(1) of the Crimes Act provides:

(1)   Subject to subsections (3) and (4), where:

(a)   a person is convicted of a federal offence, or of 2 or more federal offences at the same sitting; and

(b)   the court imposes on the person a federal sentence that does not exceed, or federal sentences that, in the aggregate, do not exceed, 3 years; and

(c)   at the time the sentence or sentences are imposed the person is not already serving or subject to a federal sentence;

the court must make a single recognizance release order in respect of that sentence or those sentences and must not fix a non‑parole period.

40. The language of s 19AC(1) stands strongly against the applicant’s contention in ground 1 for three reasons. First, as a matter of logic, it is clear from s 19AC(1) that the precondition to whether a recognizance release order should be made is the length of sentence, or sentences, imposed for a federal offence or offences. Whether or not the sentence or sentences do not exceed 3 years must be determined before the sentencing judge gets to the point of considering whether or not to impose a recognizance release order. Given that, the operation of s 19AC(1) requires that the question whether the sentence or sentences imposed does or does not exceed 3 years must be determined without regard to the term of any recognizance release order made.

41. Second, it is clear from the terms of s 19AC(1) that Parliament has drawn a distinction in that subsection between the sentence or sentences imposed for a federal offence, on the one hand, and the recognizance release order on the other. That is apparent from the phrase at the end of the subsection, directing that the court must make a recognizance release order “in respect of that sentence”. The use of that language is, on its face, inconsistent with the applicant’s proposed construction of s 19AC, according to which the period of the sentence or sentences imposed is construed as including the period of the recognizance release order.

42. Third, s 19AC(1)(b) directs attention to the period of the aggregate federal sentence or sentences. Sentence is defined in s 16(1) of the Crimes Act:

sentence, in sections 16B to 19AZD, means a sentence of imprisonment.

43. Federal sentence is, in turn, defined as “a sentence imposed for a federal offence”. It is thus clear that it is the sentence or aggregate sentences of imprisonment, not the period of a recognizance release order, that are relevant for the purposes of s 19AC(1)(b).

44. In light of the above, ground 1 should be rejected. The period of a recognizance release order is not to be taken into account in determining the question whether the sentence or sentences imposed exceed a period of 3 years in s 19AC(1).

45. Whilst I have not relied upon this in reaching my conclusion, I note that my conclusion as to construction is consistent with the Explanatory Memorandum to the Crimes Legislation Amendment Bill (No 2) 1989 (Cth), which introduced s 19AC (then numbered s 19AD). This set out that:

“Subsection (1) [of proposed s 19AD] requires a court to make a recognizance release order where an offender is sentenced to imprisonment for one or more federal offences for an aggregate of less than 3 years.”

46. I would add that my conclusion as to ground 1 is unaffected by authorities considering the relevance of the period of a recognizance release order to the requirement under s 6(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“CHRO Act”) that an application under CHRO Act cannot be made until the last nine months of the offender’s current custody or supervision. In this regard, Harrison J (as his Honour then was), in State of NSW vNW [2019] NSWSC 415 held that the period in s 6(1) was measured by reference to the expiration of the head sentence and not the expiration of the recognizance release order because during the period of the recognizance release order the offender will not be serving a sentence of imprisonment: at [24]. N Adams J disagreed with this conclusion in New South Wales v Cornwall [2023] NSWSC 278; (2023) 375 FLR 459, on the basis that, under s 20A(5)(c)(i) of the Crimes Act an offender on a recognizance release order remained liable to be returned to prison for the remaining period of imprisonment should they breach a condition of the recognizance release order: at [41]. In that context, and for the purposes of considering the timing requirements under the CHRO Act, her Honour held (at [42]) that an offender on a recognizance release order was serving a sentence of imprisonment because:

“The fact that this period of imprisonment may be ordered to resume at any point until the expiration of the RRO is inconsistent with the sentence having expired.”

47. As is apparent, these cases consider a question quite different to that before this Court. The conclusion of N Adams J in New South Wales v Cornwall is predicated upon her Honour’s determination that the term of imprisonment, being the head sentence, could not be said to have expired if the offender remained liable to be returned to prison for breach of a condition of a recognizance release order. That says nothing about whether the period of a recognizance release order should be construed as part of the period of the sentence for the purposes of s 19AC(1) of the Crimes Act.

Ground 2: failure to properly consider s 16A(2AAA) of the Crimes Act

48. In ground 2 the applicant contends that the sentencing judge erred in having regard to s 16A(2AAA) of the Crimes Act with respect to the terms of the applicant’s release from custody but not in the calculation of the period of custody. The applicant contends that the evidence as to the adverse impact any period in custody would have on him required that the sentencing judge specifically advert to s 16A(2AAA) at the point in the remarks on sentence at which the sentencing judge determined what, if any, period of imprisonment to impose.

49. Subsection 16A(2AAA) provides:

(2AAA)   In determining the sentence to be passed, or the order to be made, in respect of any person for a Commonwealth child sex offence, in addition to any other matters, the court must have regard to the objective of rehabilitating the person, including by considering whether it is appropriate, taking into account such of the following matters as are relevant and known to the court:

(a)   when making an order—to impose any conditions about rehabilitation or treatment options;

(b)   in determining the length of any sentence or non‑parole period—to include sufficient time for the person to undertake a rehabilitation program.

50. I have already set out at [33] above the sentencing judge’s express consideration of s 16A(2AAA). It is readily apparent that the sentencing judge was aware of the terms of s 16A(2AAA), including that it requires that the court consider the objective of rehabilitating the offender when determining the sentence to be passed or order to be made. The sentencing judge also clearly took that objective into account in the sentencing exercise. In this regard, the sentencing judge:

1. referred expressly to Mr Randall’s evidence that the applicant would be unable to access treatment in custody and as to the progress of the applicant’s treatment, the fact that the applicant’s program of treatment was only partially complete, and the adverse impact of a period of custody on the applicant’s rehabilitation;

2. determined on that account that the conditions of release should include compliance with treatment and counselling conditions including continuing treatment with Mr Randall or another suitably qualified health professional; and

3. at the point of considering whether immediate release should be ordered under s 20(1)(b) of the Crimes Act, had “close regard” to the possible detrimental impact that may be caused by an interruption of his treatment.

51. The sentencing judge was satisfied, however, that no sentence other than imprisonment was appropriate in all the circumstances of this case to meet the seriousness and gravity of the offending and having regard to the applicant’s subjective features. His Honour said that the full-time custody component of the sentence reflected the minimum period that the applicant should remain in custody. It is clear that in making this determination the sentencing judge considered the objective of rehabilitating the applicant, observing, as set out at [36] above, that this sentencing outcome would enable the applicant “to renew his community-based treatment after that period of custody, which would best meet the need for rehabilitation”.

52. Contrary to the applicant’s contention, as is apparent from the matters set out above, the sentencing judge did not err in applying s 16A(2AAA). Subsection 16A(2AAA) does not require that the court identify how the period of imprisonment imposed takes into account the objective of rehabilitation. Nor is it inconsistent with s 16A(2AAA) to impose a custodial sentence in circumstances where this may have an adverse impact upon an offender’s rehabilitation.

53. Ground 2 should be rejected.

Ground 3: manifest excess

54. The principles to be applied in determining a ground asserting manifest excess of sentence were collected by R A Hulme J (Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]:

“•   Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

•   Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

•   It is not to the point that this Court might have exercised the sentencing discretion differently.

•   There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

•   It is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

55. Further, in He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95, Bell P (as the Chief Justice then was) at [42] added to that summary of principles:

“(1)   Sentencing is an “exercise of intuitive synthesis of all of the material before the sentencer in order to serve purposes that often pull in different directions” – Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51]; Tammer-Spence v R [2013] NSWCCA 297 at [56].

(2)   Each case has to be considered on its own merits, and no case is entirely similar to any other – Windle at [61].

(3)   There is a wide discretion to impose a sentence that seems to the sentencing judge to be just and appropriate – Windle at [61].

(4)   An applicant seeking to challenge a sentence on the ground of manifest excess has a “very heavy practical burden”, and must show a kind of disproportion which is so “manifest on its face as to be indicative of, not a mere difference of idiosyncratic opinions, but, rather, of substantive error of law” – R v Elemes [2000] NSWCCA 235 at [22]-[23].

(5)   The basis for appellate intervention is in accordance with the principles set out in House v The King (1936) 55 CLR 499; [1936] HCA 40 – Matthews v ASIC [2009] NSWCA 155 at [181]; Dowling at [59].

(6)   The starting point of the analysis as to whether a sentence is manifestly excessive is to identify the nature of the offence(s) – Turner at [68].

(7)   Whether a sentence is manifestly excessive is a conclusion, and it is not necessary to identify any particular error in the process – Dinsdale at [6]; Simmons at [30].

(8)   Whilst a history of sentencing might establish a range of sentences imposed, it does not establish that such a range is the correct range, nor does it establish that the upper and lower limits are the correct upper and lower limits of such a range – Martinez v R [2020] NSWCCA 250 at [39].

(9)   Thus, the use of statistics is a somewhat blunt instrument when seeking to establish manifest excess, and statistics may be of limited utility in a particular case and should not be given undue weight – Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54]; Fogg v R [2011] NSWCCA 1 at [59]-[60]; Windle at [62]; Furia v R [2010] NSWCCA 326 at [74].

(10)   Instead of a comparison of the sentences with statistics, when assessing whether a particular sentence is manifestly excessive, it is important to consider the specific findings as to the objective seriousness of the offence and the culpability of the offender – Holloway v R [2011] NSWCCA 23 at [85]; Windle at [64].”

56. In respect of the question of accumulation or concurrence, as set out by Howie J (Adams and Price JJ agreeing) in Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27]:

“…The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

57. In this case, applying the principles set out above, I am satisfied that the sentence imposed on the applicant was not manifestly excessive.

58. The applicant, in his written submissions, identified the various sentencing considerations as set out in s 16A(2) of the Crimes Act, and relied in particular (and without seeking to be comprehensive) on the following matters in support of his contention that the sentence imposed was manifestly excessive:

1. The number of images lay in the lower levels of offending;

2. There was no aspect of payment of financial benefit accruing to the applicant;

3. There was no evidence of proximity between the applicant and the production of the images or videos;

4. There was only unsophisticated planning;

5. The offending occurred over only the limited period from 23 January 2022 to 9 March 2022;

6. The applicant had demonstrated remorse through his admissions, and there was cooperation including provision of passcodes to the police to access his devices, evidence and guilty pleas;

7. The applicant’s prior good character, progress in treatment and positive prospects of rehabilitation;

8. The applicant contends that his offending was explicable by the disorder which he developed during COVID-19;

9. The applicant’s background and mental illnesses; and

10. Judicial Information Research System statistics which indicate that the sentence imposed on the applicant sits well above the mean and in the highest range of penalties.

59. These matters must, however, be considered in context. The sentencing judge found that the possession and access offences were particularly serious examples of offending of its type. In this regard, his Honour relied upon multiple matters including:

1. All of the video and file images depicted real prepubescent children;

2. Those children were aged from as young as 2 years to 13 years;

3. Regarding sequence 1, the files had been saved over a period of four to five months, with two stories downloaded on 28 October 2021 and one story saved on 13 February 2022 and that offending involved 1,107 files, a significant proportion of which were video files;

4. Regarding sequence 2, the applicant accessed 1,333 video files over a period of two weeks which suggested an “intense level of interest over that period”;

5. The video files included “highly depraved material”, including very young children being penetrated and forced sex acts being performed on young children, including where the child was crying and struggling whilst being subject to acts of cruelty which must have amounted to physical harm;

1. The applicant was actively seeking such “depraved content”, for example, requesting and accessing “forced videos”; and

2. The applicant’s motive was, in part, his own sexual gratification.

60. The sentencing judge, having heard the applicant give oral evidence, also found that at times he attempted to minimise his offending and his interest in child abuse material. Contrary to the applicant’s contention at the sentencing hearing, the sentencing judge rejected his evidence that he had only been viewing child abuse material for one to two years as “disingenuous”.

61. The sentencing judge found that the transmission charge was a serious example of offending of this type, including having regard to the ages of the children, that the transmission took place over a period of approximately 7 weeks, there was transmission of 114 files to a total of 11 different users, the nature of the material and that the applicant’s motivation for transmission was to gain access to further material himself.

62. Having regard to these findings, none of which are challenged, it is apparent that the sentences imposed were well within the sentencing judge’s discretion, as was the degree of accumulation. As Spigelman CJ (Simpson and Adams JJ agreeing) held in Mulato v R [2006] NSWCCA 282 at [37]:

“Characterisation of the degree of objective seriousness of an offence is classically within the role of the sentencing judge in performing the task of finding facts and drawing inferences from those facts. This Court is very slow to determine such matters for itself or to set aside the judgment made by a first instance judge exercising a broadly based discretion. The question must be whether or not the particular characterisation which her Honour gave to the circumstances of the offence was open to her Honour. In my opinion it was open, although I have some hesitation in deciding so and find it to be at the lower end of the range which could reasonably be held to be so characterised.”

63. That is so notwithstanding that the sentencing judge was satisfied that the applicant’s moral culpability was to some degree reduced having regard to his background, paraphilic disorder and depression, that the applicant was of good character and had demonstrated remorse and cooperation, had reasonable prospects of rehabilitation and that the COVID-19 pandemic continued to cause hardship.

64. As to accumulation, the sentencing judge explained the degree of accumulation by reference to the different and distinct criminality involved in the different offences. The sentencing judge’s conclusion as to accumulation, that there be a small amount of accumulation for sequences 1 and 2 and a small but greater degree for sequence 3, was open to his Honour.

65. His Honour is also likely to have had regard to the fact that “[t]he maximum penalty for a statutory offence serves as an indication of the relative seriousness of the offence”: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [31]. As set out above, the maximum penalty for the offending in each of sequences 1, 2 and 3 was 15 years’ imprisonment.

66. Finally, as to the applicant’s reliance upon statistics, in addition to the matters set out at [55] above, as the Crown submits some of the data upon which these statistics are based cover sentences imposed before the substantial amendments made by the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) and thus provide no real support for the contention of manifest excess.

67. Ground 3 should be rejected.

Conclusion

68. For the reasons set out above I propose the following orders:

1. Leave to appeal against sentence granted.

2. Appeal dismissed.

69. BUTTON J: I agree with Stern JA.

**********

Decision last updated: 08 July 2024