Director of Public Prosecutions v BRL
[2022] TASCCA 8
•1 September 2023
[2022] TASCCA 8
| COURT: | SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL) |
| CITATION: | Director of Public Prosecutions v BRL [2022] TASCCA 8 |
| PARTIES: | DIRECTOR OF PUBLIC PROSECUTIONS |
| v | |
| BRL | |
| FILE NO: | 2388/2022 |
| DELIVERED ON: | 1 September 2023 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 14 November 2022 |
| JUDGMENT OF: | Blow CJ, Wood J, Estcourt J |
| CATCHWORDS: |
Criminal Law – Appeal and new trial – Appeal against sentence – Sentence manifestly excessive or inadequate – Indecent assault, rape and possessing, distributing and producing child exploitation material – Mother performing sexual acts upon infant sons and selling videos of those acts and others – Sentence of 4 years' imprisonment with non-parole period of 2 years – Whether manifestly inadequate.
Aust Dig Criminal Law [3521]
REPRESENTATION:
Counsel:
Appellant: L Mason SC, L Brett Respondent: O Jenkins
Solicitors:
Appellant: Director of Public Prosecutions Respondent: Rae & Partners
| Judgment Number: | [2022] TASCCA 8 |
| Number of paragraphs: | 93 |
Serial No 8/2023
File No CCA 2388/2022
DIRECTOR OF PUBLIC PROSECTIONS v BRL
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL BLOW CJ WOOD J ESTCOURT J (Dissenting) 1 September 2023 |
| Orders of the Court: |
1 Appeal allowed.
2 Sentence of 4 years' imprisonment with non-parole period of 2 years set aside.
3 Respondent sentenced to 6 years 6 months' imprisonment with effect from 12 August 2022.
4 Respondent not to be eligible for parole until she has served 3 years 3 months of that sentence. Serial No 8/2023 File No CCA 2388/2022
DIRECTOR OF PUBLIC PROSECUTIONS v BRL
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL BLOW CJ 1 September 2023 |
1 This is a sentencing appeal. The respondent pleaded guilty to 15 charges relating to possession, distribution and production of child exploitation material. The charges included six counts of indecent assault and one of rape. On 25 August 2022 Pearce J sentenced her to four years' imprisonment, ordered that she not be eligible for parole until she had served two years of that sentence, made a pecuniary penalty order in the sum of $6100, ordered the forfeiture of her mobile phone, and made an order under the Community Protection (Offender Reporting) Act 2005 for her name to be placed on the register under that Act and for her to comply with the reporting obligations under that Act for 10 years after her release from prison. The Director of Public Prosecutions has appealed, contending that the sentence of four years' imprisonment is manifestly inadequate. For the reasons set out below, I have concluded that the sentence was manifestly inadequate, that the appeal should be allowed, and that a longer sentence should be imposed.
2 I have had the advantage of reading the judgment of Estcourt J. I regret that I am not able to agree with his conclusion that the appeal should be dismissed. The facts relating to the crimes, their impact, the surrounding circumstances, and the applicable case law are all dealt with in substantial detail by his Honour. I need not repeat much of what he has written.
3 This was an unusual case. There were substantial aggravating factors whose presence was unusual, and substantial aggravating factors whose absence was unusual.
4 The 15 charges related to four groups of crimes. The first group of crimes concerned the appellant's second son and were committed in or about the period from 1 July 2018 to 30 September 2018. The boy was about three months old. The respondent used her mobile phone to film his penis and scrotum and to film herself touching and rubbing his penis with her fingers as if masturbating it. She sent the images to a person who had requested them, whose identity she did not know. That person paid her between $500 and $1000 for them. In respect of those crimes she pleaded guilty to indecent assault (count 1 on the indictment), producing child exploitation material (count 2), and distributing child exploitation material (count 3).
5 The second group of crimes related to her youngest son and were committed on 10 October 2021. The boy was about five months old. She committed two indecent assaults on the boy, and filmed both of them on her phone, but did not send either of them to anyone. A video of the first assault runs for about a minute and shows her exposing the boy's penis and scrotum, touching and rubbing his penis and scrotum, taking hold of his penis and masturbating it. The second video runs for about 18 seconds and shows her licking the boy's exposed penis. In respect of the first video she pleaded guilty to indecent assault (count 4) and producing child exploitation material (count 5). She also pleaded guilty to similar charges in respect of the second video (counts 6 and 7).
6 The third group of crimes also related to the respondent's youngest son. Those crimes were all committed on 23 October 2021. She indecently assaulted her son by touching and rubbing his penis and scrotum, and masturbating his penis. In respect of those acts she pleaded guilty to a count of indecent assault (count 8). Then she licked his penis and scrotum. In respect of that licking she pleaded guilty to another count of indecent assault (count 9). She inserted the boy's penis into her mouth for about three seconds. In respect of that act she pleaded guilty to a count of rape (count 11). Then she lactated onto the boy's penis. In respect of that act she pleaded guilty to another count of
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indecent assault (count 10). She recorded all of those acts on her phone in a video that ran for 4 minutes 36 seconds. She sent that video to a purchaser via a Dropbox account, not knowing that person's identity, and received a payment of $600 for it. In respect of that video she has pleaded guilty to charges of producing and distributing child exploitation material (counts 12 and 13 respectively).
7 The fourth group of crimes charged on the indictment related to children other than the respondent's children. Their identities are apparently unknown. Between about July 2018 and 15 December 2021, when police officers conducted a search of the respondent's home, she obtained and sold child exploitation material. She did not pay for any of the material. She advertised on line as "Taboo Mummy". She sold the material to about five to ten different customers. She was unaware of their true identities. She was paid between $500 and $1,000 for each sale. The learned sentencing judge was given descriptions of ten video clips found by the police. It was not suggested that the respondent had sold any other child exploitation material produced by others but she was sentenced on the basis that some of these videos were sold by her multiple times. The ten video clips depicted children of around two to four years of age. Most involved penetrative sexual activity. Some depicted forceful anal rapes of very young boys. One was described as depicting a child who was visibly distressed. In that video a naked man was holding the child's genitals onto the face of a naked woman. In respect of the ten video clips the respondent pleaded guilty to charges of possessing and distributing child exploitation material (counts 15 and 14 respectively).
8 The crimes of accessing and possessing child exploitation material are generally regarded as extremely serious because the commission of those crimes tends to encourage the exploitation of children for sexual purposes. If there was no demand for videos and images depicting the sexual abuse of children, there would be less sexual abuse of children. Prison sentences, sometimes substantial ones, are imposed on people who collect child exploitation material for the purpose of reducing the demand for such material and thus reducing the sexual exploitation of children. Generally speaking, distributing child exploitation material is regarded as a more serious crime than the crime of possessing such material because distribution tends to encourage greater sexual exploitation of children and can encourage recipients of the material to sexually abuse children themselves. Generally speaking, producing child exploitation material must be regarded as a more serious crime than possessing or distributing such material because the producers are directly involved in the commission of unlawful sexual acts upon children. This case is a particularly serious one because the respondent did not just possess child exploitation material, but also produced and distributed such material.
9 There are a number of serious aggravating circumstances in this case. Those circumstances and my comments in relation to them are as follows:
• The respondent sexually abused two of her own sons. • She sexually abused each of them when they were only a few months old. • The respondent's sexual abuse was repeated. • Her sexual abuse of her sons escalated in severity. • She breached the trust placed in her by her baby sons and by her husband. •
The consequences for her three children have been extreme. Their mother has been taken out of their lives. Each of them will one day find out why their mother was taken out of their lives. Over the years they will learn the terrible significance of the reason why their mother has been taken out of their lives. Even if future contact is allowed with her, their relationships with their mother will never be the sorts of relationships that they should have had, and were entitled to have. The videos of their mother sexually abusing them will probably remain in circulation for decades and they will have to live with the knowledge that that material is in circulation.
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• The respondent provided child exploitation material to purchasers without any knowledge as to the state of the mental health of any of them. There was a substantial risk that one or more of them might have been encouraged to commit terrible sexual crimes against young children. • All of the respondent's crimes were committed for the purpose of financial gain. • The videos of unknown children which the respondent sold involved a very high level of depravity. Very few cases before this Court have related to child exploitation material depicting such extreme violence in relation to very young and very vulnerable children. 10 It is true that a number of common aggravating factors are absent in this case. The respondent is not a paedophile, and had no personal interest in watching or collecting child exploitation material. She did not deal in enormous quantities of such material. She sold to no more than ten customers, and the case relates to no more than 14 videos. Her children sustained no physical injury. They were not distressed by what was happening to them because they were too young to understand.
11 There were mitigating factors. Those factors and my comments in relation to them can be
summarised as follows:
• The respondent, who was aged 31 when sentenced, had no significant prior convictions. In fact her only conviction was for a drink driving offence committed in 2012, when she was 20 years old. • She cooperated with the police and made full admissions when interviewed after the police search. • She pleaded guilty. The Crown were advised that she was going to plead guilty at a very early stage. However the evidence against her was overwhelming. • Except for the three occasions when she committed crimes against her children, she was a loving and caring mother. • She was raped by someone known to her when she was 16 years old. • She had steady employment from the age of 15 until the birth of her first child. • She was remorseful. • She had been honest with her mother, sister and grandmother about her offending after her arrest. She continued to have support from those family members. • Her mental health had suffered as a result of her being arrested and charged and her children being removed from her. Between the police search in December 2021 and her imprisonment in August 2022 she had been diagnosed as suffering from anxiety and depression. She had become suicidal. Her general practitioner had prescribed medication. She was obtaining assistance from a psychologist. 12 In my view the mitigating circumstances, taken as a whole, are of little significance. Having regard to all the relevant circumstances, particularly the aggravating circumstances referred to above, I consider that the head sentence of four years' imprisonment did not reflect the seriousness of the respondent's crimes, to such an extent that it was neither reasonable nor just. That is to say, I am satisfied that the sentence was manifestly inadequate.
13 In an appeal of this nature, when it is established that a sentence was manifestly inadequate, this Court has a residual discretion to dismiss the appeal despite the inadequacy of the sentence: CMB
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v Attorney-General for New South Wales [2015] HCA 9, 256 CLR 346. In my view there is no reason why this Court should exercise that discretion in the respondent's favour. The appeal should therefore be allowed. If it is, the respondent will have to be re-sentenced. There is no reason for that task not to be undertaken by this Court.
14 After the hearing of this appeal, counsel for the respondent provided written submissions at the invitation of the Court as to matters relevant to re-sentencing that have occurred since the original sentence was imposed last year. The relevant matters can be summarised as follows:
• Steps have been taken to inform the respondent's children of her crimes in an appropriate manner. It has been difficult for the respondent to know that the children are being made aware of what she did to them. • Although the respondent was not identified in media reports at the time of her sentencing, her identity was made public through social media, and that was very troubling for her. • There are a lot of positive things to be taken into account in relation to the respondent's conduct and activities during the months that she has been in prison. The prison authorities have given her the role of Leading Hand, which is the highest role available to inmates. She has her own office, and is responsible for ordering stock for the prison, preparing clothing and hygiene packages for inmates, and seeing to the distribution of chemicals throughout the prison complex. She has overhauled and reorganised the library in the Mary Hutchinson Women's Prison. She has attended fortnightly appointments with an external counsellor. She has undertaken programs relating to rehabilitation and further education. Positive reports relating to her were provided by a counsellor and an interventions officer employed within the Tasmania Prison Service. • She hopes to find employment after her release with a view to contributing financially to the support of her children. 15 Having regard to all the circumstances, I would sentence the respondent to 6½ years' imprisonment with effect from 12 August 2022, when she was taken into custody. I would order that she not be eligible for parole until she has served half of that sentence. A non-parole period may not be less than half of the head sentence: Sentencing Act 1997¸ s 17(3). The period of three years and three months is the minimum time that I think justice requires that the respondent must serve, having regard to all the circumstances of her crimes: Power v The Queen (1974) 131 CLR 623 at 629.
16 Section 11(3) of the Sentencing Act requires a court that imposes a single sentence on an offender for more than one "child sexual offence" to identify the sentence that would have been imposed for each child sexual offence, had separate sentences been imposed. In s 4 of that Act "child sexual offence" is defined to include an offence committed in relation to a person under the age of 17 years against, amongst other provisions, s 127, s 130A or s 185 of the Criminal Code. Those sections respectively relate to indecent assault, producing child exploitation material, and rape. However the definition of "child sexual offence" does not extend to include the crimes of distributing child exploitation material or possessing such material, contrary to s 130B and s 130C of the Code respectively. I think the most appropriate course in this situation is to specify the sentence which would have been imposed for each of the respondent's 15 offences, including those that were not "child sexual offences" as defined.
17 A question arises as to what approach should be taken in fixing separate sentences for the crimes of indecent assault and rape. If the respondent had committed those sexual acts upon her sons, and recorded them on her mobile phone, but not sent any of the recordings to anyone, much less harm would have been done. The children may never have learned what was done to them and their mother may have remained in their lives. However I have come to the conclusion that lenient sentences should not be imposed in respect of the indecent assaults and the rape. It is very significant that the
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respondent committed those crimes for the purpose of distributing recordings of her sexual abuse, and did so for the purpose of financial gain. If she had repented, changed her mind, and distributed nothing, that would have warranted a very substantial sentencing discount. However that was not the situation, and substantial sentences should therefore be fixed in respect of her physical acts.
18 If I were to impose separate sentences for each of the respondent's 15 crimes, they would have
been as follows:
• On count 1 (indecent assault), 12 months' imprisonment with effect from 12 August 2022. • On count 2 (producing child exploitation material), a cumulative sentence of three months' imprisonment. • On count 3 (distributing child exploitation material), a cumulative sentence of three months' imprisonment. • On count 4 (indecent assault), a cumulative sentence of six months' imprisonment. • On count 5 (producing child exploitation material), a cumulative sentence of three months' imprisonment. • On count 6 (indecent assault), a cumulative sentence of six months' imprisonment. • On count 7 (producing child exploitation material), a cumulative sentence of three months' imprisonment. • On count 11 (rape), a sentence of three years' imprisonment, of which nine months would be concurrent with the sentences on counts 6 and 7, and the balance cumulative. • On counts 8, 9 and 10 (all indecent assault), three sentences of three months' imprisonment, all concurrent with each other and the sentence on count 11. • On count 12 (producing child exploitation material), a sentence of 12 months' imprisonment, concurrent with the sentences on counts 8, 9, 10 and 11. • On count 13 (distributing child exploitation material), a sentence of six months' imprisonment, concurrent with the sentences on counts 8, 9, 10, 11 and 12. • On count 14 (distributing child exploitation material), a cumulative sentence of 15 months' imprisonment. • On count 15 (possessing child exploitation material), a sentence of six months' imprisonment, concurrent with the sentence on count 14. • In respect of each of those sentences, I would have ordered that the respondent not be eligible for parole until she had served half of the sentence. 19 The above sentences are the ones that I would impose if required to impose 15 separate sentences in this case. The starting point is that I consider that the respondent should receive a head sentence of 6 ½ years' imprisonment or else a series of head sentences amounting in the aggregate to 6 ½ years. If I were required to impose a sentence on only one of the 15 charges, it would be longer than the sentence specified above. Similarly, if I were required to sentence for a group of charges, but not all 15, the sentences would not be as short. The sentences listed above are intended to give effect to the totality principle discussed by the High Court in Mill v The Queen (1988) 166 CLR 59.
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File No CCA 2388/2022
DIRECTOR OF PUBLIC PROSECTIONS v BRL
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL |
WOOD J
1 September 2023
Introduction
20 This is a Crown appeal against a global sentence imposed of four years' imprisonment with a non-parole period of two years imposed by Pearce J. The sentence was imposed upon the respondent for three distinct episodes of sexual assault with each episode involving one of her infant sons and each episode carried out with the purpose of producing child exploitation material. There was also a period of offending involving the possession and distribution of unrelated child exploitation material. These four groups of offending are set out and considered by the learned Chief Justice in his Honour's reasons for judgment. I agree with his Honour's consideration of the appeal. I agree with his Honour that the sentence was manifestly inadequate and that the appeal should be upheld. I wish to add some remarks about sentencing principles that have had a bearing on the conclusion I have reached, and also about s 11(3) of the Sentencing Act 1997 (Tas).
21 The submissions for the Crown highlighted sentencing principles governing sexual abuse of children and child exploitation material. It is not suggested that the learned sentencing judge overlooked or mistook those matters of principle. Rather, it is submitted for the Crown that the length of the sentence reveals the sentencing discretion miscarried and that it is manifestly inadequate in light of the gravity of the crimes, the high degree of culpability of the respondent, and the sentencing principles that apply. It is submitted that the important considerations of denunciation, retribution, and general deterrence demand a heavier sentence than that imposed.
22 It is argued that this appeal meets the test required for a Crown appeal; the sentence under appeal requires intervention to ensure that public confidence in the administration of justice is not undermined: Green v The Queen; Quinn v The Queen [2011] HCA 49, 244 CLR 462 at [42].
23 Australian courts have for many years emphasised the importance of general deterrence and denunciation in sentencing for crimes involving sexual abuse of children and child abuse material. In considering this appeal, I have found it helpful to revisit some of the authorities which articulate these objectives and some recent cases which have applied them. I mention some of them here as they provide content and force to the courts' treatment of general deterrence and denunciation as prominent sentencing goals.
The sexual crimes
24 It is a well-established principle that the courts have a duty to protect children from sexual depredation: Neasey J in R v S [1985] TASSC 25 at [5]. The courts must impose sentences that will be an effective deterrent to those who may be inclined to engage in such conduct: Director of Public Prosecutions v STU [2012] TASCCA 7, 21 Tas R 322 at [59]. General deterrence is a dominant consideration, particularly in cases where the perpetrator is in a position of trust in relation to the victim: R v BJW [2000] NSWCCA 60, 112 A Crim R 1 at [20]–[21]. Through the sentences the courts impose, they must, in order to protect future possible victims, endeavour to deter those who may be so inclined from engaging in such conduct: Director of Public Prosecutions v DJK [2003] VSCA 109 per Vincent JA at [26]. The vulnerability of children and the need for protection is marked when the victims are very young. Children are particularly vulnerable in the situation of abuse carried
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out by a family member: R v BJW at [20]–[21]. An offender's parental responsibility for the victim is
highly relevant to the assessment of the gravity of the offences.25 Sexual crimes perpetrated by a parent have a number of recurrent features, as stated by the Court in Director of Public Prosecutions (Vic) v Dalgleish [2016] VSCA 148 at [72]; including:
"… extreme invasion of the victim's person; exploitation of a vulnerable child; violation of social norms; long-term and severe impact; serious breaches of trust reposed in the offender by the child and by the spouse/partner; and an undermining of the familial roots of society."
26 As noted, there is a long-term and severe impact on victims and their families resulting from crimes involving sexual abuse of children. The courts are well aware of the severity of harm that is caused and the pervasive nature of that harm.
27 There is also an inevitable harm caused to society by the commission of these crimes. In R v MJJ; R v CJN [2013] SASCFC 51, 117 SASR 81, Kourakis CJ said at [84]:
"There is no doubt that victims of sexual abuse and their families carry a substantial psychological and financial burden. There is also a great social cost to the community. Community anxiety about sexual offending curtails the freedom of children to explore their environment in a way which is a necessary part of their psycho-social development. It also generates increasing suspicion and sensitivity about completely innocent behaviours. The great personal and social harm caused by sexual offending against children demands a strongly deterrent sentencing response."
28 A related objective of the sentencing process is denunciation. This aspect of sentencing reinforces society's values and expectations of its members: Ryan v The Queen [2001] HCA 21, 206 CLR 267 per Kirby J at [118]; Director of Public Prosecutions v Dalgleish (above) at [123]–[124]. Fundamental to those values of society is the protection of its children. The sentence should vindicate the outrage that informed members of the community have to cases involving child sexual abuse and reflect that in just and reasonable measure. The sentence must be just punishment for the gravity of the crimes committed, the appalling breach of trust, and the harm caused. Of course, just punishment involves a balancing of considerations, including those that militate in favour of mitigation of penalty. Sentences which fail to reflect these considerations of general deterrence and vindication of society's values cause victims to feel justifiably betrayed and devalued, and create a sense of injustice in the community generally: Director of Public Prosecutions v Dalgleish at [123]-[124]; Director of Public Prosecutions v DJK [2003] VSCA 109.
29 The facts of this case are a clear example of the "recurrent features" identified in Director of Public Prosecutions v Dalgleish. There has been a long-term and severe impact on the victims. While the complainants are unlikely to have a memory of what their mother did, they have sustained actual and immediate harm as they have been removed from their mother's care and this is a direct and inevitable consequence of the offending. There is also undeniable harm caused to their father and to their sibling, and this harm will have repercussions for the victims too. In addition, there is an inevitable risk of psychological harm to the victims once they learn of their mother's offending, as noted by the learned sentencing judge.
30 The Court can presume the victims will be very disturbed to know what their mother did. The nature of the rape involved a profound level of degradation of the infant and carries with it the potential for a commensurate degree of psychological harm. The indecent assaults involving the licking of the penis may well result in a similar level of harm, which speaks to the seriousness of those indecent assaults.
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31 There are three discrete episodes of offending involving two infants. The first episode was in 2018 and the other two were approximately a fortnight apart in October 2021. There was an escalation in the gravity of the offending across the three episodes.
32 The purpose of committing the sexual assaults was to produce child exploitation material and sell it. This was planned and purposeful abuse. The respondent's criminality and moral responibility was substantial for each incident of abuse, and even more so for the second and third episodes, at which point she had offended once already and had had time to reflect on her wrongdoing.
33 This is a case involving a grave breach of trust. The respondent breached her most fundamental duty as a mother; to keep her children safe from harm. The infants were aged approximately 2-5 months, and 4-5 months. Their infancy meant they were completely vulnerable to sexual abuse. They were entirely helpless once their mother resolved to abuse them. They had no ability to resist their mother, nor did they have the comprehension and language to disclose what she had done. The sexual abuse by a parent of young infants is deeply disturbing to a caring and healthy society.
The child abuse material crimes
34 It can be seen that general deterrence is also of paramount importance when sentencing an offender for crimes concerning child sexual abuse material. This has been confirmed by the courts on many occasions: Director of Public Prosecutions v Latham [2009] TASSC 101, 19 Tas R 281; Director of Public Prosecutions v Harington [2017] TASSC 4, 27 Tas R 128 per Pearce J at [150]; Director of Public Prosecutions (Cth) v Garside [2016] VSCA 74, 50 VR 800 at [20]-[21].
35 In R v Booth [2009] NSWCCA 89, Simpson J at [39]-[44] and [47] made observations regarding possession of child abuse material, also relevant to charges of production and distribution, stating at [40]:
"… possession of child pornography is an offence which is particularly one to which notions of general deterrence apply. Possession of child pornography is a callous and predatory crime."
36 Appellate courts throughout Australia consistently refer to certain fundamental propositions when sentencing for child sexual abuse offences, such as that:
•
Offending involving child pornography occurs on an international level and is becoming increasingly prevalent with the advent of the internet as a means of allowing people to access and obtain child pornography;
•
Offending involving child pornography is difficult to detect given the anonymity provided by the internet;
•
The possession of child pornography material creates a market for the continued corruption and exploitation of children; and that
•
There is a paramount public interest objective in promoting the protection of children as the possession of child pornography is not a victimless crime, for children are sexually abused in order to supply the market.
See R v De Leeuw [2015] NSWCCA 183 at [72], adopted by the Victorian Court of Appeal in Director of Public Prosecutions v Garside at [25]; and in South Australia in R v Turvey [2017] SASCFC 28, 127 SASR 425 at [134].
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37 The courts often emphasise that these are not victimless crimes. In R v De Leeuw, Johnson J quoted from R v Porte [2015] NSWCCA 174, 252 A Crim R 294 at [69]:
"Not only are the children involved exploited and degraded by the events depicted in the images. As they grow older, their shame and distress is likely to continue with the knowledge that the material may remain in circulation."
38 In R v Turvey, Hinton J (with whom Nicholson and Lovell JJ agreed) at [138] stated:
"The ongoing and real risk of re-victimisation and the perpetual exploitation of the child that dissemination over the internet has demands that paramountcy be afforded general deterrence."
39 Concerns about the growing distribution of child pornography material as a result of online technological developments, the continued corruption and exploitation of children, and increasing prevalence and severity of material are borne out by recent research and statistics: Australian Federal Police 2020-2021 Annual Report page 21; Salter et al, "Production and distribution of child sexual abuse material by parental figures", (2021) 616 Trends & Issues in Crime and Criminal Justice; Cale et al, "Crime commission processes in child sexual abuse material production and distribution: A systematic review", (2021) 617 Trends & Issues in Crime and Criminal Justice.
40 The factors relevant to an assessment of the seriousness of child abuse material offences have been considered by this Court and other intermediate appellate courts in Australia. These factors include matters such as the nature and content of the images, including the age of the children, the number of children, and the gravity of the activity portrayed; the number of images or items of material; whether possession is for the purpose of further distribution; and whether there will be any profit or benefit from the activity of the offender: Director of Public Prosecutions v Latham at [34] per Porter J; Colbourn v The Queen [2009] TASSC 108 per Blow J (as he then was) at [24] (with whom Crawford CJ and Porter J agreed); Director of Public Prosecutions v Harington per Pearce J at [62]–[65]; R v De Leeuw at [72]; Director of Public Prosecutions (Cth) v D'Alessandro [2019] VSCA 60, 26 VR 477 at [21]; Garside at [25]; and R v Turvey at [134].
41 Subjective factors such as personal responsibility for the production of the material, the level of personal interest in the material, and participation in the images captured will also be important to any assessment of the gravity of the offending: see R v Latham at [34], quoted with approval in R v Padberg [2010] SASC 189, 107 SASR 386 per Doyle CJ at [27], White J agreeing; and in R v Turvey per Hinton J at [138], Nicholson and Lovell JJ agreeing.
42 For a recent and comprehensive but non-exhaustive list of factors, see R v Hutchinson [2018] NSWCCA 152 per R A Hulme J at [45], (with whom Meagher JA and Button J agreed).
43 An additional factor relevant to an assessment of the gravity of the conduct is the relationship of the children to the person who produced and distributed the material, and the circumstances in which the material came to be produced and distributed: R v LS; R v MH [2020] NSWCCA 148 per Wilson J at [135], [141] (with whom Bell P and Davies J agreed). That this material was produced and distributed by the parent of the child is a feature that significantly heightens the gravity of the offence, as does the fact that the production of the material and the recordings of the assaults occurred in the home of the children, a place where they should have been protected and safe from being used for the creation of this material: R v LS; R v MH at [138]–[141].
44 As well as the production of the child sexual abuse material which coincided with the sexual abuse of her sons, the respondent was to be sentenced in relation to a fourth group of crimes which involved her obtaining and selling unrelated child exploitation material. Through a community website "Locanto" she had "met" some people who mentioned they had child exploitation material. She had customers looking for that material and, after obtaining it, sold 10 video clips to her
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customers through the encrypted service "Wickr". She sold videos to about five to 10 customers over a lengthy period of time of approximately three years. The 10 videos are of five young children. Having read the description of those videos, I agree with the Chief Justice's characterisation of them as involving a very high level of depravity.
45 The reason the respondent committed the crimes of sexual assault was to produce and sell child abuse material. She was financially motivated. The respondent was assessed by forensic and clinical psychologist, Dr Georgina O'Donnell, and as part of that assessment she interviewed the respondent about her offending and purpose. Dr O'Donnell noted that the respondent "did not describe any symptoms consistent with a Paraphilic Disorder. Her motivation for the offending behaviour was financial. This is consistent with a common typology of female child sexual offending [Cortoni, F 'Women who sexually abuse: Assessment, treatment and management' (2018) Safer Society Press] that is becoming more prevalent around the world due to the available market with advancing online technologies. [The respondent] referred to the normalisation amongst her generation as a young adult of selling sexual images or videos of oneself as a 'side hustle' to support lifestyle. [The respondent] has extended that acceptance to sexually marketing her children, as in her mind they were not hurt in the process as they were too young to remember."
46 There are features of the respondent's offending which cause concern for the courts and the community. The respondent engaged with the periphery of the online paedophilic community in her legal activities and marketed herself as a mother. This helped sell her product, but it also attracted the attention of that community and led to her engagement with individuals with an interest in child sexual abuse material. The respondent chose to engage with individuals knowing they had an interest in child sexual abuse material and she chose to succumb to the influence of that community. She abused and debased her infant children, and on two occasions sold that material, knowing the abuse would be viewed by predatory and perverse individuals who would find the content sexually stimulating.
47 This case is a stark illustration of the corrupting influence and insidious reach of this predatory online community involving the normalisation and creation of this material. This case demonstrates the corrupting influence upon individuals who choose to engage with that community, and the potential for that to influence individuals who would not otherwise have been expected to commit crimes of child abuse (echoing sentencing comments made in EOJ Supreme Court of Tasmania, 13 December 2022). This community and the proliferation of child sexual abuse material claws at the fabric of our society.
48 To this online community, children are a sexual commodity and those who have access to them are of real interest. Chillingly, people who are parents or carers are targeted.
49 Our society depends on parents, carers, and family to protect children. This bulwark of protection is threatened if parents and carers are tempted to engage online with paedophiles and promoters of child abuse material.
50 These considerations add to the already strong need for general deterrence that exists in cases involving child abuse material. Anyone entrusted with the care of a child who chooses to engage online with this community and allow themselves to be corrupted, leading to the sexual abuse of a child and/or the distribution of the product of that abuse, should expect heavy punishment.
Conclusion
51 There are common sentencing objectives and concerns in relation to the offences of child sexual abuse and the offences of child abuse material, all of which invoke the court's responsibility to protect children and demand a sentence which will deter others and denounce the conduct as anathema to our society.
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52 Having regard to the learned Chief Justice's reasons, and the additional matters I have noted in relation to the sentencing imperatives in this case, it is my conclusion that the sentencing exercise miscarried and the sentence imposed was unreasonable and unjust. Further, the threshold test for a Crown appeal is met.
Re-sentencing
53 In the task of re-sentencing, I have had regard to the written submissions on behalf of the respondent, provided pursuant to s 402(4A) of the Criminal Code, as to matters that have occurred since she was sentenced last year, summarised by the learned Chief Justice at [14].
54 I have considered all the circumstances of the case. I am conscious that, factually, there is a very close relationship with respect to some of the offences concerning each episode of offending, particularly in terms of two of the episodes of sexual abuse which represent a course of conduct. Further, there is a factual overlap with the incidents of sexual abuse and the production and distribution charges because of the respondent's purpose in committing the sexual crimes. The defendant abused her two infants in order to produce and distribute child exploitation material and then produced and/or distributed that material. Further, facts of the sexual abuse charges and the production and distribution of material charges have in common that the material was produced and distributed in breach of the defendant's parental responsibility, and in the infants' home. This close relationship between the offences needs to be reflected in the sentence to avoid double punishment. Further, there are considerations across the groups of offending, particularly groups two and three, which involve the same infant and which were committed relatively close in time. Totality considerations have an important role in the sentencing task in this case.
55 I agree with the sentence proposed by the learned Chief Justice of six and a half years' imprisonment with a minimum non-parole period. In agreeing with the proposed sentence, I note that I regard this sentence as reflecting an appropriate discount for the early pleas of guilty. In my view, a discount in the order of 25% is appropriate, accepting that the pleas of guilty are closely linked to the respondent's genuine remorse and her co-operation with authorities. The proposed sentence justly reflects the matters in mitigation. I note in this context a significant factor in mitigation is that if not for the respondent's frank admissions to police, the full extent of her offending would not have become known and she would not have been charged with as many offences: per Hayne J in AB v The Queen [1999] HCA 46, 198 CLR 11 at [113]. Notwithstanding these mitigating considerations, I wish to make clear that I regard a heavier sentence as open and within the proper exercise of the Court's sentencing discretion.
56 Rather than imposing a single global sentence, an alternative approach in structuring the sentence would be to impose four global sentences, totalling six and a half years' imprisonment, reflecting the four discrete episodes of offending: Sentencing Act, s 11(1)(c). If that approach were taken, I would have imposed the following sentences, each reflecting a discount of approximately 25% for the early pleas of guilty. Again, I would have ordered the respondent not be eligible for parole until she has served the minimum of half of each term of imprisonment.
Group one:
Counts 1–3: A period of 12 months' imprisonment.
Group two:
Counts 4–7: A cumulative sentence of 18 months' imprisonment.
Group three:
13 No 8/2023
Counts 8–13: A cumulative sentence of 3 and a half years' imprisonment, 10 months concurrent with the global sentence imposed on counts 4-7.
Group four:
Counts 14-15: A cumulative sentence of 16 months' imprisonment.
57 Having noted the Court's discretion in structuring the sentence, I regard a single global sentence as entirely appropriate and for the reasons I have expressed, I agree with the sentence his Honour has proposed.
The section 11(3) exercise
58 Section 11(3) of the Sentencing Act provides:
"(3) If a court imposes a single sentence on an offender for more than one child sexual offence, the court is to identify the sentence that would have been imposed for each child sexual offence, had separate sentences been imposed".
59 Having re-sentenced the respondent and imposed a global sentence, this Court needs to identify the sentence it would have imposed for each child sexual offence. These offences, as defined, do not include the offence of distribution of child exploitation material. However, it makes sense to give an indication which includes all of the offences. Before identifying these notional sentences, I will consider the exercise that is required.
60 This provision was introduced in 2019 as part of a series of legislative reforms aimed at addressing the recommendations made as a result of the Royal Commission into Institutional Responses to Child Sexual Abuse.
61 In the Second Reading Speech for the Criminal Code and Related Legislation Amendment (Child Abuse) Bill 2018, the Attorney-General stated:
"The bill amends the Sentencing Act 1997 to require sentencing courts to indicate the sentence that would have been imposed for each offence had separate sentences been imposed when setting a sentence in relation to child sexual abuse offences involving multiple discrete episodes of offending and/or where there are multiple victims. This is in line with recommendation 75 of the Royal Commission's Criminal Justice Report."
62 I will have regard to the Royal Commission Report bearing on recommendation 75, which was explicitly mentioned in the Second Reading Speech: Acts Interpretation Act 1931 (Tas), s 8B.
63 The Report of the Royal Commission noted submissions which had expressed dissatisfaction about concurrent sentencing. The Report referred to various legislative frameworks, including the New South Wales sentencing provisions and the requirement that if an aggregate sentence is imposed as a single sentence, the court is to indicate the separate sentences that would have otherwise been imposed. The Report at p 301 referred to the justification for this requirement outlined in the Second Reading Speech for the amending legislation:
"However, it remains important for a number of reasons for there to be some indication given of the respective sentence that would have been imposed had each offence been dealt with directly. These reasons include the transparency of the sentencing process, the comfort to victims accorded by an explicit recognition of the level of criminality involved in the specific crimes committed against them, the benefits in publicly recognising the particular aggravating and mitigating factors of an offence as required under the Act [the Crimes (Sentencing Procedure) Act 1999 (NSW), and to assist appeal courts in resentencing offenders after successful appeals
14 No 8/2023
or in identifying where errors in the sentencing process may have occurred where such errors may have been 'masked' by the aggregation of the sentence into a single term of imprisonment."
64 The conclusions at pp 306-307 which underpin recommendation 75 provide:
"It would appear that the principles behind concurrent sentencing are not well understood, and, perhaps as a consequence, the imposition of sentences that are to be served concurrently can cause distress to victims and survivors.
However, given the principle of totality, adopting a simple presumption in favour of cumulative sentencing would be unlikely to provide victims and survivors with any greater comfort. In order to comply with the principle, head sentences for child sex offences would need to be reduced in order to avoid a crushing sentence, which might be just as distressing to victims and survivors.
While we accept the reasoning that leads to concurrency for sentences that arise from the same course of criminal conduct, we also consider that sentencing for multiple offences should, to the greatest degree possible, provide recognition for separate episodes of child sexual abuse offending, and certainly for multiple victims.
We are not satisfied that legislating for a presumption in favour of cumulative sentencing would achieve this. However, we are satisfied that there is scope for states and territories to legislate to ensure that the separate harm done to victims by separate offences is recognised where there are multiple discrete episodes of offending, and/or where there are multiple victims.
Adopting a provision similar to that used in New South Wales, which requires the sentencing court to give an indication of the sentence that would have been imposed for each offence when setting an aggregate sentence, should assist in ensuring that separate episodes of offending are given their own recognition in any aggregated sentence.
We do not put this recommendation forward with an expectation that it is likely to lead to longer sentences. Sentencing for multiple offences is a difficult task, and we chare the concern expressed in some submissions that preserving discretion for sentencing courts is the most appropriate course to recognise the many and various circumstances that arise in sentencing." (My emphasis.)
65 It can be seen that a key objective of s 11(3) is that there be recognition of the separate harm done to victims by separate offences where there are multiple discrete episodes of offending and/or where there are multiple victims.
66 The New South Wales amendments made in 2010 to the Crimes (Sentencing Procedure) Act 1999 to allow for global sentences, known as aggregate sentences, to be imposed attracted both the consideration of the Royal Commission and judicial consideration. Section 53(2)(b) requires that the court imposing an aggregate sentence of imprisonment must "indicate to the offender … the sentence that would have been imposed for each offence … had separate sentences been imposed instead of an aggregate sentence." While the New South Wales section is not in the same terms as s 11(3) and falls within a different statutory scheme, some of the judicial remarks about its purpose are apposite here.
67 In the course of explaining the operation and effect of s 53A, R A Hulme J stated in JM v R
[2014] NSWCCA 297, 246 A Crim R 528 at [6] (Hoeben CJ at CL and Adamson J agreeing):
"One reason why it is important to assess individually the indicative sentences is that it assists in the application of the principle of totality. Another is that it allows victims of crime and the public at large to understand the level of seriousness with which a court has regarded an individual offence: Nykolyn v R, supra, at [58]; Subramaniam v R, supra, at [28]. A further advantage is that it assists when
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questions of parity of sentencing as between co-offenders arise: R v Clarke, supra, at
[68], [75]."
See also Vaughan v R [2020] NSWCCA 3 at [92].
68 To those reasons I would add that the indication of what the separate sentences would have been assists sentencing courts in achieving reasonable consistency in sentencing – "the treatment of like cases alike, and different cases differently": Hili v The Queen [2010] HCA 45, 242 CLR 520 at [49]. Past sentences can provide some measure by which a sentencing court can attempt to achieve consistency in sentencing and in the application of principle: R v Kilic [2016] HCA 48, 259 CLR 256 at [22].
69 The learned sentencing judge identified the separate sentences he would have imposed for each crime with an indication that some sentences would have been wholly concurrent, and some partially concurrent and partially cumulative. The notional sentences his Honour would have imposed are set out in the judgment of Estcourt J at [81]. This approach did not attract any argument on appeal however, I note one aspect of this approach was that there was no additional period of imprisonment indicated for any of the indecent assaults in relation to the second occasion, and the indecent assaults and rape with respect to the third occasion. The only additional indicated periods of imprisonment for these two episodes were for the production of child exploitation material. Having said that, I can see that an indication is given about the seriousness of the conduct by reference to the length of the terms of imprisonment, albeit as concurrent sentences.
70 As I have said, the approach taken is not the subject of any argument on the appeal. It only arises because, having engaged in the task of re-sentencing and facing the consequential exercise required by s 11(3), I have reflected on the purpose of the provision.
71 In setting out the notional separate sentences for the purpose of s 11(3), I regard it as appropriate to provide that indication without regard to totality considerations, either with respect to the episodes of offending or generally. It seems to me that the intended approach reflects the purpose of the amendment, and provides what is arguably the clearest indication of the Court's view about the gravity of the individual crimes and the separate harm done to each of the victims. Assuming this approach is correct then, strictly speaking, issues of concurrency and accumulation do not arise. I hasten to add that in fixing the global sentence, the process undertaken by the sentencing court in reaching that sentence, workings out, and issues such as accumulation and concurrency may very usefully be disclosed in the sentencing comments. My only point is that these issues are not essential to the s 11(3) exercise.
72 By contrast and, as I have said, in the sentencing task itself and in fixing the global sentence, I have applied totality considerations to reflect the factual issues I mentioned pertaining to the same victim and concerning the same episode, and also across the episodes of offending to ensure the aggregate sentence is "just and appropriate" and not disproportionate to the totality of that criminal behaviour: Mill v The Queen (1988) 166 CLR 59 at 63. Conversely, it is also necessary to ensure that the aggregate sentence justly and fairly reflects all of the offender's criminal conduct and is heavy enough to adequately reflect the number of crimes and the gravity of them: Director of Public Prosecutions v Harington (above) at [25]–[29].
73 For the purpose of s 11(3), the separate sentences I would have imposed in this case for this offender, given her circumstances after a discount for the early pleas of guilty in the order of 25%, are as follows:
Group 1: July – September 2018
• Count 1, Indecent assault (by touching first complainant's penis): 5 months' imprisonment. 16 No 8/2023
• Count 2, Producing child exploitation material: 9 months' imprisonment. • Count 3, Distributing child exploitation material: 9 months' imprisonment. Group 2: 10 October 2021
•
Count 4, Indecent assault (by touching second complainant's penis and scrotum): 5 months' imprisonment.
• Count 5, producing child exploitation material: 9 months' imprisonment. • Count 6, indecent assault (by licking second complainant's penis): 9 months' imprisonment. • Count 7 producing child exploitation material: 9 months' imprisonment. Group 3: 23 October 2021
•
Count 8, indecent assault (by touching second complainant's penis and scrotum): 9 months' imprisonment.
•
Count 9, indecent assault (by licking second complainant's penis and scrotum): 15 months' imprisonment.
•
Count 10, indecent assault (by lactating onto second complainant's penis): 3 months' imprisonment.
•
Count 11, rape (by inserting second complainant's penis into her mouth): 2 years' imprisonment.
• Count 12, producing child exploitation material: 12 months' imprisonment. • Count 13, distributing child exploitation material: 18 months' imprisonment. Group 4:
• Count 14, distributing child exploitation material: 15 months' imprisonment. • Count 15, possessing child exploitation material: 6 months' imprisonment.
17 No 8/2023
File No CCA 2388/2022
DIRECTOR OF PUBLIC PROSECTIONS v BRL
| REASONS FOR JUDGMENT | COURT OF CRIMINAL APPEAL |
ESTCOURT J (Dissenting)
1 September 2023
The appeal
74 The Director of Public Prosecutions has appealed against a sentence of four years' imprisonment imposed upon the respondent, BRL, by Pearce J on 25 August 2022 after the respondent pleaded guilty to six counts of indecent assault, four counts of producing child exploitation material, three counts of distribution of child exploitation material, one count of rape and one count of possessing child exploitation material.
75 The principles applicable to appeals in relation to sentence are well settled. They were summarised by Pearce J (with whom Blow CJ and Porter J agreed) in Director of Public Prosecutions (Acting) v Pearce [2015] TASSC 1; 28 Tas R 1. At [8]-[9] his Honour stated in relation to appeals alleging manifest inadequacy or excess:
"As in all appeals such as this, it is necessary to refer to the principles which limit the circumstances in which intervention of an appellant court is justified. The court sits to correct material error: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 per Kirby J at [57]–[60]. Where no specific error is alleged, this Court must be persuaded of error of the second type referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing judge is 'unreasonable or plainly unjust'. It is not to the point that the sentence may be regarded by some as too lenient or too harsh. It must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 at 242. A court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion: see Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15], and the other case referred to by the Court in Director of Public Prosecution v CSS [2013] TASCCA 10. Sentencing judges should be 'accorded a wide measure of latitude': Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336. Excess or inadequacy is either apparent or it is not: Dinsdale v The Queen (above) at [6]. In considering that question regard is to be given to all the matters that are relevant to determining the sentence: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 539."
76 In order to succeed the appellant must identify an appealable error in the sentencing judge's discretionary decision. If the appellant does establish error, then the it must also negate any reason why the residual discretion of the Court not to interfere should be exercised, see R v Hernando [2002] NSWCCA 489, 136 A Crim R 451 at 12, and CMB v Attorney General (NSW) [2015] HCA 9; 256 CLR 346 at [34] and [66].
77 In Director of Public Prosecutions v Swan [2016] TASCCA 9 Pearce J (with whom Blow CJ and Wood J agreed) said at [30]:
"The exercise of the residual discretion is informed by the purpose of Crown appeals, which distinguishes such appeals from appeals against severity of sentence by convicted persons. As the High Court made clear in Green v The Queen at 465 [1], the primary purpose of an appeal by the Crown is to identify principles for the governance and guidance of sentencing courts: Green v The Queen at 465-466 [1]–
18 No 8/2023
[2]. They also serve to maintain public confidence in the administration of justice by the intervention of this Court in the case of manifestly inadequate sentence: Everett v The Queen [1994] HCA 49, 181 CLR 295 at 306; R v Stoupe [2015] NSWCCA 175 at [115]-[116]."
The comments on passing sentence
78 The relevant facts of the respondent's offending were set out in the learned sentencing judge's comments on passing sentence as follows:
"You are now aged 31. You have three sons. From about 10 years ago, when you were 21, and before you had any children, you sold sexualised photographs and videos of yourself on line. You advertised the images through messaging or sharing services and provided the images on request in return for payment. Some of the images included some fetish style content. There is nothing unlawful about such conduct or such images and you used the payments you received to supplement your income. In around 2016 or 2017, when you were pregnant with your first child, you decided to take advantage of the fetish market for sexualised images of you while pregnant or lactating. There is nothing unlawful about that type of content either.
However, a year or two later, when you were pregnant with your second child, you started to receive requests for images of a sexual nature involving your children. You initially resisted. However, in mid-2018, you agreed to a request from a person to create and provide a video of you performing sexual acts on your second son when he was about three months old. On your phone you filmed his exposed penis and scrotum and you filmed yourself touching and rubbing his penis with your fingers as if masturbating it. You sent the images to the person who requested them in return for a payment of somewhere between $500 and $1000. You did not know the identity of the person to whom you sent the video. That video was then deleted from your phone.
Before long knowing of the market for child exploitation material, you also decided to seek out and sell other such material not involving your own children. Your aim was to make more money. You obtained ten video clips. The content was described to me. All are short in duration. The shortest is about 11 seconds and the longest is just over a minute. However they include child exploitation material of a most serious character. Five different children are depicted, all aged between about 2 and 4. Some are the subject of more than one of the videos. One child is forcefully anally raped. Another is vaginally raped. The others are all subject to abusive sexual acts and in some cases the children show signs of distress. Over the course of a period of about three years you sold these images on line to somewhere between five and ten people. You received between $500 and $1000 for each transaction and did not know the identities of any of your customers.
All but one of the remaining counts concern your youngest son. In October 2021, when he was about five months old, you agreed to an on-line request to provide sexualised images of him. On two separate days you used your phone to film yourself with him. On the first day you made two videos, one about a minute long and the other 18 seconds. The images include you exposing his penis and scrotum and touching and fondling his penis with your fingers, including rubbing his penis as if to masturbate it and using your tongue to lick his penis. Although you produced those images, which were later found on your phone, you did not send them to anyone. About two weeks later you made another video, this time about four and a half minutes. The images depict conduct of the same nature as the earlier videos but this time also include you lactating onto his penis and putting his penis in your mouth for about three seconds. That latter act amounts to the crime of rape. You then transferred the images you produced to the person who had asked for them in return for a payment of $600. You did not know the identity of that person.
Your husband knew nothing of what you had been doing. Your offending was discovered in November 2021 through monitoring conducted by the National Centre for Missing and Exploited Children. It was reported to the Australian Federal Police who referred it to Tasmania Police. Your phone was seized on 15 December 2021.
19 No 8/2023
Later analysis disclosed that it contained 18 videos which were child exploitation material. Three were the videos you made of your youngest son to which I have just referred. The remainder were the 10 videos of the unidentified children I earlier referred to, and some duplicates of those videos. As I have already mentioned, the video of your second son had been deleted. However, in the case of the videos of both your sons, once the images were sent they were beyond your control and likely to be widely disseminated on the internet in a way which can never be reversed."
79 The matters relevant to sentencing were also set out by the learned sentencing judge in his
comments as follow:
"When you were interviewed you made extensive admissions and gave the police a very full account. The information you gave them included information they would not otherwise have known about. The principal example of that is the offences committed against your second son about which there was no longer any evidence. You also admitted that you sought out the videos of the children which you then sold on, and that you actively marketed all of the material from which you were making money. The fact that you gave the police such a full account, and entered a relatively early plea of guilty, indicates your acceptance of responsibility. I would also accept that you now have a genuine appreciation of the seriousness of what you did and a wish to make amends. However your repeated conduct over time indicates that the remorse you now experience arose only after you had been apprehended and the terrible consequences became clear. Your plea of guilty also serves to facilitate justice.
A psychological assessment conducted by Dr Georgina O'Donnell confirms that your offending was not contributed to by any psychiatric, psychological or other medical condition, intellectual disability, learning disability or any other capacity related issue. You deny any sexual gratification from marketing images of yourself or from participating in acts of a sexual nature with children. The motivation was financial gain, although some further explanation is necessary to convey the full picture. As your family grew, financial pressures arose. You later told the police that your family could have survived without the extra money. However you felt pressure to maintain an idealistic image of what a family should be and wanted your children to have the best of everything. In a way which could hardly be more contradictory to your criminal acts, you were trying to create a social media following by promoting a gentle and eco-friendly parenting style, and holding yourself out as a model parent. The image you were projecting required purchase of expensive clothing and food items and for the most part that is what the money was spent on. You justified this to yourself by thinking that your sons were too young to know what was going on. Dr O'Donnell referred to these contradictions as 'cognitive distortions'. In summary, in return for what was a modest financial gain, you decided to make and send images of two of your own infant children for the sexual gratification of persons you did not know. Images were only sent twice, in each case to a single person, but they were sent in a way which resulted in a situation in which the images may be further distributed, thus serving to sexually gratify a potentially unlimited number of persons with an interest in material depicting the abuse of children.
The overwhelming sentencing consideration for all of your offending is the protection of children. The prohibition of sexual offences against children is founded on the presumption of harm. In the absence of expert evidence it is impossible to determine whether children of the age your sons were at the time would have, or would ever have, a direct appreciation of what happened to them and the wrongfulness of it. Some of the conduct was out of the ordinary only by its intent, but other conduct went beyond any normal physical interaction between mother and baby. But that question becomes somewhat academic in this case. From 15 December 2021 all three of your sons were removed from your care and contact with them was prohibited. Because they remained in the care of their father that meant breakdown of the family unit. They are probably still too young to understand what has happened and why and there is likely still a strong emotional bond to you. The loss of a parent, particularly loss of maternal attachment if that occurs, is terribly damaging in itself but is a consequence of your offending. Moreover I am told that the child protection authorities, who are in
20 No 8/2023
the best position to judge such things, will require that the children be told what happened when they are at an appropriate age and level of maturity. Such disclosure, even if in the best long term interest of the children, will inevitably carry a further risk of psychological harm. Whether there may be future contact between you and the children, and if so when, will be determined independently of these proceedings.
You have a good deal of support from members of your family. I have letters written by your grandmother, mother and younger sister all expressing their pride in and affection for you. To their observation you were a caring and loving parent. I have no reason to doubt that this was so, except to the extent that it is quite inconsistent with the way you behaved towards two of your children on these occasions. The obvious conflict between your love and care for them and the conduct which resulted in these charges makes clear your very grave breach of trust. You breached the trust of your two sons who, by reason of their age, were in your complete control. Their age and that they were subject to your care, supervision and authority are aggravating factors. The breach of trust extended to your husband and other son, and to your extended family.
The significance of the possession and distribution of the other child protection material should not be overlooked. The number of images was not large, but the content of some of it was of the most serious type, and the images were sold on multiple occasions. You claim not to have looked at the material yourself, but deciding to sell it regardless of its content does not make your conduct any less serious. You actively marketed their sale for no other reason than to obtain money, and without regard to the welfare and interests of the children depicted. The reason that offences involving child exploitation material are serious have been explained on many occasions. The children shown are real children. In this case they were extremely young and were subjected to appalling physical and psychological abuse and harm. The collection and sharing of such material is likely to encourage those who produce it, resulting in harm to more children. Distribution encourages and risks the corruption of others, although those you sent images to were already corrupted, at least to some extent.
I think that the risk that you may offend in this manner again, certainly against your own children, is low. Nevertheless, the sentence I impose must serve not only to punish you, denounce your conduct and vindicate the victims, but to send a message to others about the likely result of crimes of this nature. The aim is, as far as it is possible for a court to achieve, to thereby deter others from similar crimes for fear of the consequences.
I should mention the charge of rape. It is a crime which carries the implication of particular seriousness. However the nature and circumstances of this crime was such that it carried, in my view, no greater risk of harm than any of the other assaults. None of the offences against your own children carried any risk at all of physical harm. It is the potential for psychological harm which is significant."
Section 11(3) of the Sentencing Act 1997
80 In his comments on passing sentence the learned sentencing judge also set out the individual sentences he would have imposed had he not decided to impose a single sentence in respect of all eleven counts on the indictment. He said:
"I will impose a single sentence to reflect what I regard to be a just and appropriate measure of your total criminality, taking into account the circumstances of the offences and your own circumstances. I am required by the Sentencing Act, s 11(3) to identify the sentence that would have been imposed for each child sexual offence had separate sentences been imposed. As the term is defined in the Code, the charges of indecent assault, producing child exploitation material and rape are child sexual offences. It is simpler to indicate a separate sentence for every count tailored to achieve the result which I will announce shortly."
21 No 8/2023
81 Those individual sentences his Honour would have imposed on the respondent were as
follows:
• On count 1, (indecent assault by touching her second son's penis) – imprisonment for six months from 12 August 2022, the date she went into custody; • On count 2, (producing child exploitation material at the time of count 1) – imprisonment for 12 months also from 12 August 2022; • On count 3, (distributing child exploitation material) – imprisonment for 12 months also from 12 August 2022; • On count 4, (indecent assault by touching her third son's penis and scrotum) – imprisonment for six months to be served concurrently with the term imposed on count 5; • On count 5, (producing child exploitation material at the time of count 4) – imprisonment for 12 months, six months to be served concurrently with the terms imposed on counts 2 and 3 and the balance to be served cumulatively; • On count 6, (indecent assault by licking her third son's penis) – imprisonment for six months to be served concurrently with the sentence imposed on count 5; • On count 7, (producing child exploitation material at the time of count 6) – imprisonment for 12 months to be served concurrently with the sentence imposed on count 5; • On count 8, (indecent assault by touching her third son's penis and scrotum) – imprisonment for 12 months to be served concurrently with the sentence imposed on count 5; • On count 9, (indecent assault by licking her third son's penis and scrotum) – imprisonment for six months to be served concurrently with the sentence imposed on count 5; • On count 10, (at the time of counts 8 and 9 indecent assault by lactating on to her third son's penis) –imprisonment for four months to be served concurrently with the sentence imposed on count 5; • On count 11, (at the time of counts 8, 9 and 10, rape by inserting her third son's penis into her mouth) – imprisonment for 12 months to be served concurrently with the sentence imposed on count 5; • On count 12, (producing child exploitation material at the time of counts 8, 9, 10, and 11) – imprisonment for 18 months to be served cumulatively to the sentence imposed on count 5; • On count 13, (distributing child exploitation material) – imprisonment for 18 months to be served concurrently with the sentence imposed on count 12; • On count 14, (distributing child exploitation material) – imprisonment for 15 months, three months of which to be served concurrently with the term imposed on counts 12 and 13, and the balance to be served cumulatively; • On count 15, (possessing child exploitation material) – imprisonment for six months to be served concurrently with the term imposed on count 14. (For each of those terms, totalling five years six months, his Honour would have ordered that the respondent not be eligible for parole until the expiration of half of the term imposed.)
The appellant's submissions
22 No 8/2023
82 The appellant submits that his Honour took an individualised approach in sentencing the respondent and fell into error by placing too much weight on matters personal to the respondent whilst failing to give appropriate weight to the other important sentencing considerations.
83 I do not accept that submission. No such approach is discernible in the learned sentencing judge's comments on passing sentence.
84 The appellant submits that the sentence fails to appropriately reflect the important considerations of denunciation, general deterrence and vindication.
85 I do not accept that submission. His Honour made it very clear that, the sentence he imposed must serve not only to punish the respondent, denounce her conduct and vindicate the victims, and, importantly, in terms of general deterrence, to also send a message to others about the likely result of crimes of this nature. His Honour, with respect, correctly observed that the aim in sentencing in so far as it was possible for a court to achieve, was to deter others from similar crimes for fear of the consequences.
86 Senior counsel for the appellant, Ms Mason SC, provided the Court with detailed written and oral submissions as to the relevant sentencing considerations in this appeal, namely; the nature of the crimes; the level of vulnerability of both complainants; the gravity of the breach of trust relating to the complainants and others; the actual and presumed impact of the offending; the continued nature of the offending and the motivation for the offending (that is, callously commercial) and the gravity of producing and possessing and distributing child exploitation material, including the material she distributed that did not involve her own children.
87 Each of those submissions are entirely correct as are the matters of principle enunciated by counsel for the appellant, however the only way in which it can be suggested that the learned sentencing judge failed to properly take the relevant sentencing considerations into account and imposed a manifestly inadequate sentence, is by an inference to be drawn from the length of the sentence.
88 I am wholly unable to draw such an inference. There is, in my view, nothing in the length of his Honour's head sentence of four years imprisonment, imposed as a single sentence distilled by him from a total of five and a half years imprisonment, which he considered appropriate, (and which, having regard to the timeframe of each series of unlawful sexual acts, I respectfully agree would have been appropriate), if unmoderated individual sentences had been imposed, which suggests that that the single sentence was manifestly inadequate.
89 There is no tariff for any of the particular crimes charged in the 15 counts in the indictment in this case and there is no sufficiently similar case to use as a meaningful yardstick. However, the sentence appears to me, from a review of all sentences for cases of child abuse and/or exploitation in the Court's sentencing database, to be entirely consistent with other sentences imposed by judges of this Court in such cases. Indeed my own research reveals that, leaving aside cases of sexual abuse coupled with photographic exploitation of one or more children over long periods of time, the sentence in this case is longer than almost all sentences and equal to the longest sentence imposed in cases of this general type; (W, restricted comments on passing sentence Estcourt J 16 May 2022).
90 The facts of this case are appalling. They are also unique in this jurisdiction, although quite obviously not without parallel, globally and even nationally. They are however, in my view, no more grave than an unfortunately increasingly large number of the more serious child exploitation and abuse cases that come before this Court. It may be that the time has come to increase sentences across the whole terrible and depraved spectrum of online child abuse. That ought not to be done suddenly and without warning in this case.
23 No 8/2023
91 I accept that count 7 involved the crime of rape and that the act of rape must be seen, as submitted by counsel for the appellant, as involving serious degradation not ablated by the lack of inherent violence however, as the learned sentencing judge remarked, whilst rape is a crime of particular seriousness, the nature and circumstances of this crime, in this case, was such that it carried no greater risk of harm than any of the other sexual assaults (which was, of course, very real).
92 I do not lose sight of the fact that whilst the respondent most likely assumed that her sons were too young to know or remember what she had done to them, the fact is that the child protection authorities have stated that it will be necessary for the children to be told what happened when they are at an appropriate age and level of maturity. As the learned sentencing judge said, such disclosure, even if in the best long term interest of the children, will inevitably carry a further risk of psychological harm. This is a very important consideration, as was stressed by counsel for the appellant in her oral submissions to the Court, however I am not persuaded that the learned sentencing judge did not give effect to that consideration by the sentence he imposed. He was obviously aware of that fact.
Disposition
93 I would dismiss the appeal. In my view it is not appropriate to allow the appeal in pursuit of an increased sentencing regime for crimes such as this and to then exercise the residual discretion to nonetheless dismiss the appeal.
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