Director of Public Prosecutions (Cth) and Director of Public Prosecutions v Dylan Hutchison (a pseudonym)[1]
[2018] VSCA 153
•12 June 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0005
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellants |
| v | |
| DYLAN HUTCHISON (A PSEUDONYM)[1] | Respondent |
[1]To ensure there is no possibility of the identification of the victims of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent.
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| JUDGES: | PRIEST, BEACH and ASHLEY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 8 June 2018 |
| DATE OF JUDGMENT: | 12 June 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 153 |
| JUDGMENT APPEALED FROM: | DPP v [Hutchison] (Unreported, County Court of Victoria, Judge Cotterell, 19 December 2017) |
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CRIMINAL LAW – Sentencing – Crown appeals – Committing indecent act with child under 16 (3 charges), producing child pornography for use through a carriage service and knowingly possessing child pornography – Non-custodial disposition – Sentenced to community correction orders for 3 and a half years, with conditions, and 3 year good behaviour bond – Whether sentences manifestly inadequate – Whether custodial sentence required – Serious offending – Offences of indecent act with child and producing child pornography committed as a child – Powerful mitigating factors – Difficult sentencing decision – Sentences not wholly outside permissible range – Appeals dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellants | Mr C B Boyce SC | Mr John Cain, Solicitor for Public Prosecutions |
| For the Respondent | Mr D A Dann QC with Mr M J Gumbleton | Melinda Walker Criminal Lawyers |
PRIEST JA
BEACH JA
ASHLEY JA:
On three days in May and June 2013, the respondent (who was then a little over 16 years of age) performed a number of indecent acts with two children under the age of 16. The victims of these acts were the respondent’s half-sisters. Video images of the respondent’s actions were captured on a camera used by him, and then produced during online conversations with a person claiming to be a 17 year old girl named ‘Sara’.
In November 2015, police in the United Kingdom executed a search warrant and arrested a British citizen, Alex Orr (‘Orr’), for inciting a child to engage in sexual activity. In the course of executing various searches, the applicant’s video images were discovered. Further investigations were conducted and, on 21 February 2017, police from the Joint Anti Child Exploitation Team established that the teenage male in the videos was the respondent, and that he had transmitted the videos to Orr.
On the same day (21 February 2017), police attended the respondent’s family home and executed a search warrant. The respondent was interviewed. He refused the advice of a lawyer saying that he wanted to ‘come clean’. In the course of his interview, in addition to making full admissions, the respondent told police that there could be child pornography on his tablet.
The respondent was subsequently charged with one charge (charge 1) of committing an indecent act with a child under the age of 16 contrary to s 47(1) of the Crimes Act 1958 (‘the Victorian Crimes Act’), two charges (charges 2 and 3) of incest contrary to s 44(4) of the Victorian Crimes Act, one charge (charge 4) of producing child pornography material for use through a carriage service contrary to s 474.20(1)(a)(ii) of the Criminal Code 1995 (Cth) (‘the Criminal Code’) and one charge (charge 5) of knowingly possessing child pornography contrary to s 70(1) of the Victorian Crimes Act.
On 2 November 2017, the respondent pleaded guilty in the County Court to the offences with which he had been charged.[2] A plea hearing was then conducted over six days.[3] During the course of the plea, the judge became concerned about whether the applicant was in fact guilty of the offence of incest. The judge doubted that there could have been any penetration of the respondent’s victims in the circumstances outlined by the prosecutor. The judge called for, and viewed, the videos that were the subject of charge 4. The videos did not show any penetration by the respondent. On 6 December, the prosecutor filed a fresh indictment.[4] In the fresh indictment, the two charges of incest (charges 2 and 3) were replaced with two charges of committing an indecent act with a child under the age of 16 contrary to s 47(1) of the Victorian Crimes Act. The respondent was then arraigned[5] on the new indictment and again pleaded guilty to all charges.
[2]The matter had in fact resolved into a plea at a committal mention on 16 June 2017.
[3]The plea was heard on 2, 14, 16 and 17 November, and 6 and 14 December 2017.
[4]See s 164 of the Criminal Procedure Act 2009.
[5]The judge having vacated the pleas entered on 2 November 2017.
On 14 December 2017, the Court made orders sentencing the respondent on charges 1, 2 and 3, without conviction, to a community correction order (‘CCO’) for three and a half years; discharging the respondent on charge 4, without conviction on a s 19B bond[6] to be of good behaviour for 3 years, in the amount of $5000; and sentencing the respondent on charge 5, with conviction, to another CCO for three and a half years.[7] Both CCOs contained identical conditions as to supervision, treatment and rehabilitation. Additionally, as a condition of each CCO, the respondent was ordered to perform 300 hours of unpaid community work.[8] The judge also declared that, pursuant to s 34 of the Sex Offenders Registration Act 2004, the length of the respondent’s reporting period was ‘life’.
[6]See s 19B of the Crimes Act 1914 (Cth) (‘the Cth Crimes Act’).
[7]DPP v [Hutchison] (Unreported, County Court of Victoria, Judge Cotterell, 19 December 2017) (‘Reasons’).
[8]As to the concurrency of conditions of multiple CCOs made by a court, see s 41(1) of the Sentencing Act 1991.
At the time of the respondent’s offending, the maximum term of imprisonment for committing an indecent act with a child under the age of 16 (charges 1, 2 and 3) was 10 years; the maximum for producing child pornography for use through a carriage service (charge 4) was 15 years; and the maximum for possessing child pornography (charge 5) was 10 years.
Pursuant to s 287 of the Criminal Procedure Act 2009, the Director of Public Prosecutions for the State of Victoria (‘the DPP’) has appealed against the sentences imposed on charges 1, 2, 3 and 5. The DPP’s sole ground of appeal is that the sentence imposed is manifestly inadequate. The Commonwealth Director of Public Prosecutions (‘the CDPP’) has similarly appealed against the sentence imposed by the judge on charge 4.[9] The CDPP’s sole ground of appeal is, likewise, that the sentence imposed is manifestly inadequate.
[9]See Rohde v DPP (1986) 161 CLR 119.
The DPP has particularised her ground of appeal as follows:
In sentencing the respondent, the sentencing judge –
(a)failed to give sufficient weight to the nature and objective gravity of the offending;
(b)failed to have sufficient regard to the maximum penalty prescribed for the offence;
(c)gave too much weight to factors in mitigation including delay, upbringing, prospects of rehabilitation, youth and totality;
(d)failed to give sufficient weight to the principles of protection of the community, general and specific deterrence, punishment and denunciation; and
(e)failed to have regard to current sentencing practices.
In particularising her ground of appeal, the CDPP has relied upon the DPP’s particulars (a) to (d), and an additional particular asserting that the sentence imposed on charge 4 was manifestly inadequate because it ‘failed to provide any additional punishment for this offence, over and above the penalties for the State offences’.
Circumstances of the offending
The victims in relation to charges 1, 2 and 3 were the respondent’s half-sisters, AA and BB. At the time of the offending, AA was three years old and BB was 16 months old. As the judge described it, the respondent’s offending occurred in the context of him coming to live in Australia with his father, stepmother and two half-sisters, following the death of the respondent’s mother.[10]
[10]Reasons [2].
As we have already observed, the respondent’s offending came to light as a result of a UK police investigation into Orr in relation to an allegation of inciting a child to engage in sexual activity. Orr was the person behind the online persona ‘Sara’. In the course of investigating Orr, four videos, dated between 13 May 2013 and 26 June 2013, were located. They depicted a teenage male conducting sexual acts with two children under the age of 16. The teenage male was subsequently determined to be the respondent.
On 21 February 2017, when the respondent was aged 19 and 11 months, a search warrant was executed at the respondent’s family home. The search resulted in the location of child-exploitation material in the respondent’s Dropbox account on a tablet found in his bedroom.
The indecent acts that formed the basis for charge 1 occurred on 13 May 2013, when the respondent was aged 16 and 2 months, in AA’s bedroom. AA was asleep. The respondent made a 14 minute 14 second video of what occurred. The video shows the respondent pulling down AA’s pyjama bottoms and removing his erect penis from his underwear. He uses his left hand to hold down AA’s pyjama bottoms, near her anus. AA then moves, and the respondent removes his left hand and starts to masturbate. AA remains asleep. At a couple of points, the respondent touches AA’s buttocks with his erect penis. The video shows the respondent pushing his penis against AA’s buttocks, on one occasion for 10 seconds, and on another for 20 seconds. The respondent subsequently ejaculates.
The indecent acts that formed the basis for charge 2 occurred on 23 June 2013, when the respondent was aged 16 years and 3 months. The victim was AA again, who was sleeping in her bedroom. The respondent made a 15 minute 15 second video of what occurred. The video shows AA sleeping on her stomach. The respondent is not wearing underwear. He thrusts his penis near AA’s anus for approximately 20 seconds. Later, the respondent places his penis on AA’s anus and again thrusts his penis near her anus. The video concludes with the respondent showing AA’s pyjama bottoms to the camera.
The indecent acts that formed the basis for charge 3 occurred on 26 June 2013, again, while the respondent was aged 16 years and 3 months. This time, the acts occurred in the respondent’s bedroom and the victim was BB. The respondent made two video recordings of what occurred (one was 10 minutes in length, the other was 2 minutes and 10 seconds in length). The 10 minute video shows the respondent closing his bedroom door and removing his trousers. The respondent picks up BB and pushes her towards his crotch. He then removes his underwear, exposing his erect penis. During the 10 minute video, the respondent can be seen attempting to get BB to touch his penis; pushing and thrusting his penis towards BB’s face; and masturbating his erect penis in front of BB’s face. At a point in the video, the respondent’s penis touches BB’s mouth for a few seconds; at another point it touches BB’s nose; and at another it touches BB’s cheek. The 10 minute video also shows BB grabbing the tip of the respondent’s penis when it is very close to her face. Eight minutes into the video, the respondent is dressed, his step-mother enters the room and she takes BB out of the room with her. The respondent is then shown masturbating.
The two minute video shows the respondent kneeling in front of BB and masturbating while BB was lying on the respondent’s bed. The respondent is then observed to cover himself, before showing a wet stain on his underwear to the camera.
The videos showing the respondent’s offending against AA and BB were produced during online conversations with Orr (who called himself Sara), and during which sexual acts with the respondent’s half-sisters were discussed. The respondent transmitted the video images of his offending to Orr during these online conversations. The videos were subsequently uploaded by Orr. The production of these videos forms the basis for charge 4.
Charge 4 was a representative charge in relation to the four videos. At sentencing, the prosecutor made clear that it was the third video (the 10 minute video involving BB) that was ‘the occasion the [respondent was] to be sentenced on’. In sentencing the respondent, the judge said that ‘it was clear from these conversations that [the respondent was] being groomed and encouraged in this activity and to go further in [his] offending behaviour.[11]
[11]Ibid [13].
Using the ANVIL[12] classification scale, the videos were classified as category 2, ‘sexual activity between children or solo masturbation by a child (non-penetrative)’.
[12]Australian National Victim Image Library.
Following his arrest on 21 February 2017, the respondent was interviewed by police. During his record of interview, the respondent refused the advice of a lawyer. When asked why he did not wish to speak to a lawyer, he said, ‘Because I’m coming clean’.
In his record of interview, the respondent detailed his conversations with Sara. He said that the conversations deteriorated into ‘sexual showings’, which then led to Sara pressuring him to do things that he did not want to do, and that he regretted doing. The respondent said that he subsequently realised that Sara was not a real person. Later, he removed Sara as a contact and ‘put this whole incident to the back of [his] mind’. During his interview, the respondent said, ‘I’m a disgrace’ and ‘I’m ashamed of what I did … just awful … I feel like a disgrace to humanity’.
In the course of his interview, the topic of child pornography was raised. The respondent admitted that there could be child pornography on his tablet, which he had unintentionally downloaded through KIK and Dropbox. The respondent said that he was aware that possession of child pornography was illegal, however he left it on his tablet, and regretted not having deleted it. The possession of 111 child pornography files were subsequently located on the respondent’s tablet. This was the basis for charge 5. The respondent was, as we have already observed, 19 years old at the time of the offending that constituted charge 5.
The 111 child pornography files (72 videos and 39 images) located on the respondent’s tablet were categorised according to the ANVIL scale, as follows: 44 were in category 1 ‘non sexual activity’; 19 were in category 2, ‘solo/sex acts between children’; 10 were in category 3, ‘non-penetrative adult/child’; 30 were in category 4, ‘penetrative child/child – adult/child’; two were in category 5, ‘sadism, bestiality, child abuse’; and none were in category 6, ‘animated or virtual’.
Applicant’s background
As the sentencing judge put it, the early period of the respondent’s life was ‘clearly traumatic’.[13] The respondent was subjected to ‘an enormous and sudden change in [his] living conditions’.[14] The respondent was born in one country. His parents separated when he was very young. His mother took him to another country. She was diagnosed with cancer and died while the respondent was still very young. The judge described the respondent’s mother’s death as a ‘shocking and tragic event for [the respondent] … as [he] had not been aware of the extent of her illness’.[15]
[13]Reasons [27].
[14]Ibid.
[15]Ibid [26].
Following an agreement between the respondent’s father and the respondent’s grandparents, the respondent, together with his younger brother, relocated to Australia to live with his father, his stepmother and his two half-sisters. The respondent became ‘very concentrated on [his] younger brother’s well-being and that of [his] father, avoiding [his] own grief and distress’ in relation to the death of his mother.[16]
[16]Ibid [29].
The respondent completed year 12, before going on to complete a building design course. He had difficulty integrating in the various schools in different countries where he lived. As the judge put it, ‘this [was] clearly a very disturbed background over what are normally expected to be very important formative years’.[17]
[17]Ibid [31].
Following the discovery of the respondent’s offending, the respondent moved out of the family home. He has, since that time, been living with the family of his partner, who he met when he was 16.
By the conclusion of the plea hearing, the respondent had attended a consultant psychologist, Mr Simon Candlish, on 11 occasions for assessment and treatment. Mr Candlish provided two reports in which he expressed the following opinions:
(1) The respondent had displayed ‘emotional underdevelopment perhaps in part due to his disruptive upbringing including the breakdown of his parents’ relationship, frequent relocations affecting his socialisation and the death of his mother, which resulted in significant unresolved grief’.
(2) The respondent appeared to cope through ‘detachment and avoidance’.
(3) The respondent’s decision to engage in his sexual offending ‘appears largely related to factors of emotional and social underdevelopment’.
(4) The respondent does not reveal any serious mental health issues or personality dysfunction.
(5) The respondent falls into the ‘low risk category for sexual recidivism’.
Sentencing reasons
The judge commenced her reasons for sentence by identifying the maximum penalties for the offences to which the respondent had pleaded guilty: 10 years’ imprisonment for committing an indecent act with a child under 16; 15 years’ imprisonment for producing child pornography for use through a carriage service; and 10 years’ imprisonment for possessing child pornography.[18]
[18]Ibid [1].
The judge then described the background and circumstances of the respondent’s offending.[19] The judge said that the respondent’s offending had had a devastating effect on the respondent and his family.[20]
[19]Ibid [2]–[22].
[20]Ibid [23].
After describing the background and circumstances of the respondent’s offending, the judge turned to the respondent’s personal circumstances,[21] before then referring to the opinions of Mr Candlish.[22] The judge observed that it was Mr Candlish’s opinion that the respondent was in a low risk category for sexual offending in the future.[23] The judge said, however, that the respondent’s offending was objectively serious.[24]
[21]Ibid [25]–[34].
[22]Ibid [35]–[43].
[23]Ibid [43].
[24]Ibid [44].
Next, the judge noted that the victims, while very young, had not been injured physically and ‘may well remain unaffected by this event in their lives, except for the disruption in family relationships’.[25] The judge noted that the respondent was just over 16 years of age when he committed the offences constituting charges 1 to 4. The judge said that the respondent’s youth at the time of committing charges 1 to 4 made rehabilitation a paramount consideration, superseding general deterrence.[26]
[25]Ibid [45].
[26]Ibid [46].
The judge noted that the respondent was young and vulnerable given the death of his mother and the move to Australia. The judge took into account that the respondent became involved in seeking connections through the internet which had resulted in him being groomed and encouraged to offend more seriously.[27]
[27]Ibid [47].
The judge took into account supportive references that were tendered on the plea. She also took into account the respondent’s initial plea of guilty to the more serious charges of incest,[28] and the respondent’s refusal of legal assistance during the record of interview as evidencing the respondent’s remorse and shame.[29] The judge also took into account statements made by the respondent’s father and grandfather as to the punishment the respondent was experiencing in no longer being part of his own immediate family group because of his offending.[30]
[28]The offence of incest requiring an act of sexual penetration (albeit that the maximum penalty under s 44(4) was only 5 years’ imprisonment, compared to the maximum penalty under s 47(1) being 10 years).
[29]Reasons [48]–[49].
[30]Ibid [51]–[54].
The judge denounced the respondent’s conduct, stating that too often members of families fall victim to predatory sexual offending within their closest circles. The respondent, she said, had abused the trust that his family put in him.[31]
[31]Ibid [57].
In relation to charge 5, the judge noted that different considerations applied because the respondent was 19 at the time of that offending. The judge said that this offending was also very serious and that ‘most matters of this kind involve the imposition of an immediate custodial sentence’.[32] The judge observed that offending of the kind that constituted charge 5 was not a victimless crime. In deciding what sentence to impose, the judge said that she was required to take into account the volume of material and the classification of the material — which the judge assessed to be towards the lower end of such offending.[33]
[32]Ibid [58].
[33]Ibid [58]–[59].
The judge concluded her reasons for sentence by saying:
I have determined that in your case, in relation to Charge 4, a custodial sentence is not necessary, despite the seriousness of the offending, to satisfy the aims of sentencing set out in s 16A of the Crimes Act (Cth) and the provisions of s 17A of that Act which says, ‘That a court shall not pass a sentence of imprisonment for a Federal offence unless, after having considered all other available sentences, it is satisfied that no other sentence is appropriate in all the circumstances of the case.’
In all the circumstances of this case, I am not satisfied there is no other appropriate disposition available to the court in relation to your offending, given your age, your personal circumstances, your efforts at rehabilitation and your assessment of being a low-risk of any future offending.
I cannot sentence you to a Community Correction Order. In all the circumstances, I have concluded that it is appropriate to release you on a s 19B bond to keep the sentence coherent with the sentences imposed in relation to the related contact offences.
So Charges 1 to 3, you are sentenced under the state legislation, and Charge 4, which is the other contact matter, or the production of the videos, I have sentenced you in that way to be released pursuant to a s 19B bond.
In relation to Charges 1 to 3, and 5, which are all under the State legislation, I am also required to consider all options in relation to what would amount to just punishment in all the circumstances. That task requires a careful balancing of all the matters that I have discussed through the course of this sentence and which I take into account pursuant to s 6 [scil, s 5(2)] of the Sentencing Act, together with the mitigating factors put on your behalf.
As part of the submissions made on your behalf by counsel, a Community Correction Order was discussed, and to that end I had you assessed over a period of time, by a Community Corrections Service officers and I have received a report as to your suitability, which I take into account.
On weighing up the objective seriousness of your offending against the matters put in mitigation on your behalf, and in particular, your age at the time of committing these offences, I have determined that the imposition of a Community Correction Order of sufficient duration to allow you to complete a sexual offender's program, is appropriate in all the circumstances, given your youth and the importance of your rehabilitation.
I consider that the punitive aspect of any sentence I impose, can, in your case be achieved by such an order without conviction in relation to Charges 1 to 3, those matters which I have referred to, and I will not go over them again.
It is in the long-term interests of the community that you fulfil your excellent prospects and become a contributing and valuable member of the community you have most of your life to yet live, and it would be a shame if you were unable to come back from something that you, an offence that you committed at 16.
In relation to Charge 5, although you were an adult at that time, I note you did not deliberately seek out child pornography and that it came with other material. I regard your involvement as being in the exploitation of children which I referred to as being more limited.
In the circumstances, including the fact that you are, in relation to this offence at 19, still what is called a youthful offender, and I have concluded that this matter should also be dealt with by way of Community Correction Order to facilitate your rehabilitation which remains a dominant consideration in any sentence I impose.
This has been a very difficult sentencing option, given your age at the time. You would have been dealt with in the Children's Court had your initial offending been discovered and you would most probably have received some form of order without conviction.[34]
[34]Ibid [60]–[71].
The judge then imposed the sentences to which we have already referred (two CCOs and a good behaviour bond).
Appellants’ contentions
The appellants contend that, in all the circumstances of this case, a sentence involving immediate imprisonment was required. In support of that contention, the appellants made the following submissions:
(1) The offending in this case was exceptionally serious, and the sentences imposed by the judge do not reflect the gravity of that offending. In support of that submission, the appellants made the following points:
· The offences constituting charges 1 to 4 were committed by the respondent against his two much younger half-sisters.
· The respondent was 16 at the time of the offending the subject of charges 1 to 4; the victims were three and one year of age respectively. There was a significant disparity in age between the respondent and his victims.
· While the respondent was a child when he committed offences 1 to 4, he was nearing adulthood, and the victims were very young and vulnerable.
· The offences committed against AA occurred while she was sleeping — demonstrating a gross breach of trust by an older sibling and a level of pre-meditation and planning to commit the offences when she was at her most vulnerable.
· Committing the offending while AA slept minimised the chances of the respondent’s conduct being reported — by the victim describing to her parents what had happened between her and the respondent in a way that would have likely raised concerns about his behaviour.
· Choosing to sexually exploit a one year old is a grave example of the offence of the indecent act with a child under 16. Such a victim would be unable to report what had happened to her, or to have an awareness such conduct was wrong or inappropriate.
· The offending that formed the basis of charges 1 to 4 occurred over three days.
· The respondent made the conscious decision to record four videos of the indecent acts he committed on his victims.
· The respondent shared these four videos with another person overseas by way of live streaming and uploading of the videos.
· The recording and sharing of this material means that a copy of these image files is likely to remain in the possession of third parties and possibly in circulation on the internet indefinitely.
· Charge 4 was a count which included the four video recordings made by the respondent showing sexual offending by the respondent against his two young victims. It was described as a representative charge in the indictment, being representative of the four videos produced in that period.
· The four videos were relatively long (14 minutes and 14 seconds, 15 minutes and 15 seconds, 10 minutes and 2 minutes and 10 seconds in duration).
· Charge 5, possession of child pornography, was committed when the respondent was nineteen. He possessed 111 child pornography files, of which ten were ANVIL category 3, thirty were ANVIL category 4 and two were ANVIL category 5.
(2) The maximum penalties prescribed for the respondent’s offending reflected the seriousness with which Parliament considers conduct of this kind. That seriousness required an immediate term of imprisonment — even allowing for the respondent’s youth. A custodial sentence is ordinarily imposed for child pornography offending.[35]
[35]DPP v Smith [2010] VSCA 215 [23].
(3) Excessive weight was given to matters raised in mitigation. While there were ‘some powerful and important mitigating features to be taken into account’, those features did not justify the sentence imposed when balanced against competing sentencing considerations.
(4) Just punishment, public denunciation, general and specific deterrence, and the need to adequately emphasise protection of the community were not given sufficient weight in the sentences imposed by the judge. Specific deterrence was necessary given the respondent had committed such serious offending at a young age. Further, the offending was not isolated and exhibited a degree of planning and premeditation. General deterrence was important given the prevalence of this offending and the ease with which it can be committed against very young and vulnerable children.
(5) Current sentencing practices did not permit the judge to impose the sentence she imposed. Current sentencing practices required an immediate term of imprisonment to adequately reflect principles of protection of the community, general and specific deterrence, just punishment and denunciation.
(6) The sentencing judge failed to impose any additional punishment for the Commonwealth offence (charge 4). Charge 4 involved additional criminality which required additional punishment.
In oral argument, counsel for the appellants emphasised the importance of the protection of the community and general deterrence in relation to the respondent’s offending. Counsel submitted that the judge’s reference to the respondent being ‘groomed’[36] was not entirely apposite. This was because the respondent believed that he was dealing with a 17 year old girl (Sara) rather than that he was dealing with an adult, who was engaging in grooming behaviour of a more typical kind. It was submitted that a difficulty for the respondent was that he had shown himself willing to comply with the requirements of a person he believed to be a 17 year old girl, in order to receive the benefits that she was prepared to offer.
[36]Reasons [47].
Counsel for the appellants also submitted that, while general deterrence would not have been a relevant consideration if the respondent had been dealt with in the Children’s Court under the provisions of the Children, Youth and Families Act 2005,[37] the circumstances of the respondent’s offending and the different form of ‘grooming’ present in this case required general deterrence to be given a level of real significance in the sentencing process. Reference was made to those authorities that said that while rehabilitation is a powerful mitigating factor in relation to young offenders, the importance of that factor may be reduced in cases where the offending is particularly serious.[38]
[37]See CNK v The Queen (2011) 32 VR 641.
[38]See, eg, Azzopardi v The Queen (2011) 35 VR 43, 57 [44].
As an alternative position to the contention that the judge should have imposed a term of imprisonment on the respondent, the appellants submitted that sentencing the respondent on charges 1 to 4 ‘without conviction’ was itself a manifestly inadequate disposition. At the very least, it was submitted, the dispositions imposed in relation to charges 1 to 4 should have involved the conviction of the respondent.
Finally, counsel for the appellants submitted that, while the residual discretion should not be exercised in the respondent’s favour, attention needed to be given to the fact that, because the respondent is now 21 years of age, a sentencing disposition that was available to the judge is no longer available. At the time of sentencing, it was open to the judge to order a period of youth detention (because he was at the time of sentencing a ‘young offender’).[39] The respondent now being over 21, that potential disposition is no longer available. Counsel for the appellants very fairly conceded that that was a matter relevant to the exercise of the residual discretion.
[39]The expression ‘young offender’ is defined in s 3(1) of the Sentencing Act 1991 as an offender who is under the age of 21 at the time of being sentenced.
Respondent’s contentions
The respondent commenced his submissions by observing that this Court has said repeatedly that a ground of appeal alleging manifest inadequacy (like a ground of appeal alleging manifest excess) is a stringent ground, difficult to make good.[40] The respondent submitted that the sentences imposed by the judge were not manifestly inadequate.
[40]DPP v Karazisis (2010) 31 VR 634, 662–3 [127] (‘Karazisis’).
The respondent conceded that the objective gravity of his offending was serious, and submitted that the judge was alive to the seriousness of his offending. Indeed, during the course of the plea hearing, the judge described the offending constituting charges 1 to 4 as ‘horrifying’.
The respondent submitted that the appellants’ description of the offending that constituted charge 4 was incorrect. The respondent did not record the offending the subject of charges 1, 2 and 3. Nor did he share recorded videos of his offending. It was submitted that the facts upon which the respondent was sentenced on charge 4 were that the offending was ‘transmitted via the internet to Sara, where the adult male calling himself Sara (Orr) recorded the transmission’. We interpolate here that there may ultimately not be any great distinction between the competing descriptions of the respondent’s offending that constituted charge 4.
As to charge 5, the respondent observed that the evidence disclosed that the last time the child pornography files on the respondent’s tablet had been accessed was 18 months before his record of interview (that is, when the respondent was 17 years of age and still a child). The respondent observed that there was no evidence to contradict the respondent’s version that he had not sought out the material; that it had been automatically downloaded; and that it was his mistake not to delete it. The sentencing judge, it was submitted, accepted these matters in her reasons for sentence.[41] The respondent also pointed to the fact that the judge accepted that the amount of material constituting charge 5 was ‘not voluminous’.[42]
[41]Reasons [19], [42] and [69].
[42]Ibid [59].
The respondent submitted that the judge was well aware of the maximum penalties for the offences for which the respondent fell to be sentenced. So much was evident from the first paragraph of her Honour’s reasons for sentence.
In answer to the suggestion that the sentencing judge gave too much weight to factors in mitigation, the respondent submitted that there were powerful mitigating features including:
·The finding that the offending on charges 1 to 4 arose in circumstances where the respondent himself had been groomed and was exploited as a victim of criminal offences committed by Orr.
·The fact that the respondent was a child when he committed the offences constituting charges 1 to 4.
·The fact that the respondent was still a child when he ‘accidentally downloaded the material [the] subject of charge 5’.
·The fact that the respondent’s offending occurred in circumstances where he had just undergone a disturbed period in his life.
·The finding that the respondent was a vulnerable person when he was groomed and encouraged to offend.[43]
·The fact that the respondent pleaded guilty at an early stage.
·The finding that the respondent had demonstrated remorse and was even prepared to plead guilty to a more serious charge.[44]
·The finding that the respondent had already undergone a form of punishment which had had a devastating effect on him.[45]
·Delay: the respondent fell to be sentenced on charges 1 to 4 more than four years after that offending occurred.
·The fact that the respondent had made efforts towards his rehabilitation, and that he also had excellent prospects of rehabilitation.[46]
[43]Ibid [47].
[44]Ibid [48]–[49].
[45]Ibid [23].
[46]Ibid [68].
Next, the respondent submitted that there was no failure by the judge to have regard to current sentencing practices. In support of that submission, the respondent observed that there were no authorities which compelled the judge, in all the circumstances, to impose a different sentence from the one she imposed. Additionally, it was submitted that the judge’s reasons made plain that she gave specific consideration to protection of the community, general and specific deterrence, punishment and denunciation.[47]
[47]Ibid [55], [57], [64], [68].
As to the question of additional punishment for the Commonwealth offence (charge 4), in his written case, the respondent submitted that ‘this was a quite exceptional situation’. The respondent then said:
Most exceptionally the context in which the offending occurred involved the respondent himself being the victim of a serious crime.
That crime involved the grooming of the respondent and the perpetrator of that crime receiving a substantial period of imprisonment.
Most exceptionally again the respondent was himself a child at the time of the offending.
As with charges 1, 2 and 3 the sentencing judge was entitled to have regard to how the respondent would have been dealt with if his offending had been detected when he engaged in that offending as a child.
Taken together with the matters in mitigation that applied generally — it is submitted that the ‘unusual course’ taken by the sentencing judge, as regards to the sentence to be imposed for charge 4 — was a course that was reasonably open.
In the alternative to his submission that the sentence imposed by the judge was not manifestly inadequate, the respondent invoked the residual discretion. The respondent submitted that even if this Court considered the sentences imposed by the judge to be inadequate, the Court should nevertheless dismiss the appeals in the exercise of the residual discretion. In making that submission, the respondent relied upon the fact that he had been on, and complied with, his CCOs and s 19B bond since 19 December 2017.[48] It was submitted that the respondent’s progress so far as rehabilitation was concerned should be accorded considerable weight in the determination of whether the residual discretion should be exercised.
[48]See Karazisis (2010) 31 VR 634, 658 [107], 659 [111]; Mwamba v The Queen [2015] VSCA 338 [154], [165]–[167].
Analysis
The respondent’s offending was undoubtedly very serious. If all one knew were the objective facts of his offending then one would almost certainly conclude that the only sentence open was one of immediate imprisonment. Sentencing, however, is not nearly so simple. In this case, like many others, there were a myriad of competing considerations that had to be synthesised by the sentencing judge in order to arrive at a result that was just in all the circumstances.
As the appellants properly conceded, there were powerful mitigating circumstances that the judge was required to give appropriate and proper weight to in arriving at a sentence that satisfied all of the legitimate purposes for which sentences are imposed.
First, there was the fact that the respondent was only a little over 16 years of age at the time he committed the offences in relation to his half-sisters. Rehabilitation was a powerful mitigating factor in relation to such a young offender, notwithstanding the objective seriousness of his offending.[49] If the respondent’s offending had been detected at or about the time of its commission, he would have fallen to be sentenced under the provisions of the Children, Youth and Families Act 2005, where general deterrence would have played no part in the sentencing process.[50] As the judge put it, there was every prospect that the respondent would have received ‘some form of order without conviction’.[51]
[49]See R v Mills [1998] 4 VR 235, 241; Azzopardi (2011) 35 VR 43, 55 [37] and 57 [44].
[50]See CNK (2011) 32 VR 641.
[51]Reasons [71].
Secondly, the respondent was himself a victim of Orr’s serious offending — offending that was offending by an adult against a child, and a vulnerable one at that. As the judge put it, the respondent was groomed and encouraged in his offending by Orr.[52] Orr was subsequently dealt with for inciting a child to engage in sexual activity. That child was the respondent. An examination of the extracts of the online conversations between Orr and the respondent, contained in the prosecution opening, show the extent to which Orr pressed the respondent into his offending and the respondent’s efforts to bring matters to a halt. Notwithstanding the appellants’ submissions that the respondent was not ‘groomed’ in the way that word is ordinarily used, there was an element of persuasion and pressure applied to the respondent by Orr’s online persona Sara. In the circumstances, we do not think the judge erred in describing that persuasion and pressure as grooming and encouragement.[53]
[52]Ibid [47].
[53]Ibid.
Thirdly, the respondent’s early life and formative years were, as the judge put it, ‘clearly traumatic’.[54] Because of the separation of his parents, being taken to another country and the subsequent and sudden death of his mother, it cannot be doubted that the respondent’s upbringing involved considerable turmoil.
[54]Ibid [27].
Fourthly, upon being arrested, the respondent co-operated fully, refusing legal assistance and making full admissions. It was during these admissions that the respondent revealed the possible presence of child pornography.
Fifthly, while not a defence to charge 5, the fact that the respondent unintentionally downloaded the child pornography the subject of that charge (in the sense that, as the judge put it, the respondent ‘did not deliberately seek out child pornography, it came with other material’)[55] and the fact that that material had not been accessed in the 18 months before the respondent’s arrest was of some moment.[56]
[55]Ibid [69]
[56]Ibid [19], [42]; but see also [58].
Sixthly, the extent of the respondent’s shame and remorse was exemplified by the fact that he had pleaded guilty to incest, an offence involving sexual penetration, when no such penetration was shown on the videos, and in circumstances where any penetration as originally alleged by the prosecution was in fact highly unlikely.
Seventhly, the respondent had, and was found by the judge to have, excellent prospects for rehabilitation.
Finally, the consequences of the respondent’s offending against his half-sisters were, as the judge found, devastating for the respondent,[57] in that he had lost his close relationship with his father’s family and was no longer a part of his immediate family group.[58]
[57]Ibid [23].
[58]Ibid [53]–[54].
All of these matters had to be balanced against the very serious nature of the respondent’s offending — offending, the likes of which this Court has been at pains for some time to say is ordinarily deserving of severe punishment by way of significant sentences of incarceration. Some of the most difficult sentencing decisions, however, concern cases where the offending is very serious and the mitigating factors very powerful. Such cases require a synthesis of relevant matters that often pull in completely different directions. This was the difficult task faced by the sentencing judge in the present case.
A different sentencing judge when faced with the present case may have imposed a sentence that involved incarcerating the respondent. That is not, however, to say that a sentence that did not involve incarceration was, when all of the circumstances of the offending and offender were taken into account (as must be established for the appellants to succeed in this Court) wholly outside the permissible range of sentencing options that were available. Moreover, as has been said repeatedly, this Court is not at liberty to set aside the judge’s sentence and impose some different sentence merely because one or some of its members might conclude that they would have imposed a different sentence.[59]
[59]See generally DPP v Zhuang (2015) 250 A Crim R 282, 295–300 [39]–[49]; DPP v McInnes [2017] VSCA 374 [75].
The judge’s sentencing reasons disclose that she was alive to all of the competing considerations that she was required to take into account in imposing a just sentence on the respondent. The reasons do not disclose any error in point of principle. The sentence may properly be regarded as a merciful one, given in circumstances that were exceptional. That is, again however, not to say that the sentence imposed was wholly outside the permissible range so as to bespeak error in the exercise of the sentencing discretion.[60]
[60]See DPP v Hayes [2017] VSCA 285 [47].
As we have already observed, the offending that constituted charges 1 to 4 was committed when the respondent was a little over 16 and two months of age. When he was sentenced, the respondent was 20 years and nine months of age. In R v Boland,[61] Nettle JA (with whom Ashley and Dodds-Streeton JJA agreed) said:
Decisions of this court in R v Nutter and R v Better recognised that where offences which have been committed while an offender is a child or immature and are not prosecuted until many years after the event, there is good reason to mitigate penalty, or at least to do so where the offender has achieved a significant degree of rehabilitation and there has been no further offending. Although such an offender falls to be sentenced as an adult, common sense and fairness dictate that the assessment of the nature and gravity of the crime and of the offender’s moral culpability, take into account that what was done was done as a child, or as a person of immature years, and not as an adult or a person of greater maturity.[62]
[61](2007) 17 VR 300 (‘Boland’).
[62]Ibid 304 [16] (citations omitted). See also Sherritt v The Queen [2015] VSCA 1 [34]–[35] (Priest JA, with whom Maxwell P agreed).
In the present case, while the respondent’s offending that constitutes charge 5 cannot be disregarded, common sense and fairness did require consideration to be given to the fact that the respondent was plainly a more mature person at the time of sentencing than he was at the time of his initial offending. He was entitled to be sentenced for his offending in relation to charges 1 to 4 on the basis that the assessment of the nature and gravity of this offending, and of the respondent’s moral culpability in respect of it, took into account that what he had done was done as a child. This constituted an additional reason why the penalty to be imposed upon the respondent might be mitigated.
All of the matters relied upon by the appellants, in support of their submissions that the respondent’s offending was very serious, may be accepted. As we have said, however, that is not the end of the matter. Undoubtedly one can imagine many cases where offending of this level of seriousness by an older offender, or by an offender who was not as co-operative or remorseful as the respondent, or by an offender in some materially different circumstance or circumstances, might well have required a sentencing judge to imprison the offender for a significant period of time. Examples of significant terms of imprisonment being imposed on child pornography offenders and others who offend against children abound. As has been said many times before, those decisions are, of course, not precedents.
While the appellants were correct to make reference to current sentencing practices in their submissions, the short answer to their complaint about current sentencing practices is that, in this case, there are no sentencing decisions or other authorities that compelled a particular result. Contrary to the appellants’ submissions, current sentencing practices did not, once all of the relevant circumstances of the present case were considered, require an immediate term of imprisonment.
Additionally, we think there is nothing in the complaint that the judge ‘failed to impose any additional punishment for charge 4’. The sentence imposed on that charge fell to be imposed in all of the circumstances, including the circumstances of the dispositions to be imposed in respect of the other charges.
Synthesising all of the relevant matters for ourselves, we are not persuaded that any of the sentences or orders made by the judge were manifestly inadequate, or that the judge’s orders produced a total effective sentence that was manifestly inadequate. Some may consider the respondent fortunate to have received the sentence he received, but that is not to say that the sentence was inadequate. Moreover, it should be noted that the same or like offending committed in different circumstances, or by an offender whose circumstances are slightly different from the respondent’s, would generally be expected to require a sentencing judge to impose a significant term of imprisonment. Nothing we say in these reasons should detract from what has previously been said by this Court that offenders who commit child pornography offences, or other sexual offences against children, can generally expect to receive significant sentences of imprisonment.
Finally, on the issue of manifest inadequacy, we turn to the appellants’ submission that the sentences on charges 1 to 4 were manifestly inadequate because the dispositions in each case were ‘without conviction’. Immediately it must be observed that a s 19B bond is, by the very terms of s 19B of the Cth Crimes Act, a disposition imposed without conviction.[63] We have already concluded that, in all of the circumstances, the imposition of a s 19B bond on charge 4 was not wholly outside the range of sentencing options open to the judge.[64]
[63]See s 19B(1)(d).
[64]See s 16A of the Cth Crimes Act.
There is some force, however, in the appellants’ submissions about the imposition of the CCO on charges 1 to 3, without conviction. It was a very merciful disposition by the sentencing judge not to convict the respondent in respect of those charges. That said, the exercise of a sentencing judge’s discretion as to whether or not to record a conviction on charges 1 to 3 was governed by s 8 of the Sentencing Act 1991. Having considered her Honour’s reasons, we see no basis for concluding that her Honour’s discretion miscarried. The disposition was, as we have said, very merciful. It was, however, one that was open to her Honour in all the circumstances.
While we have concluded that the sentence imposed by the judge was not manifestly inadequate, we should say that if we had come to a different conclusion then we would, in the exercise of the residual discretion, have dismissed the appeals. We would have done so, having regard to the individual circumstances of the respondent (to which we have already made extensive reference) and because, in our view, it would be in the interests of the community as a whole that the respondent be permitted to continue to serve his CCOs, remain the subject of the bond he entered into, and to continue with his rehabilitation.
Conclusion
Each appeal will be dismissed.
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