DPP (Cth) v D'Alessandro
[2010] VSCA 60
•24 March 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 579 of 2009
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| LAURENCE TEMPLAR D’ALESSANDRO |
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| JUDGES | REDLICH and HARPER JJA and WILLIAMS AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 27 November 2009 |
| DATE OF JUDGMENT | 24 March 2010 |
| MEDIUM NEUTRAL CITATION | [2010] VSCA 60 |
| JUDGMENT APPEALED FROM | DPP (Cth) v D’Alessandro (Unreported, County Court of Victoria, Judge Duggan, 11 March 2009) |
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CRIMINAL LAW – Director’s appeal – Illegal use of an electronic carriage service in breach of the Criminal Code (Cth) – Accessing, possessing and transmitting images of child pornography and child abuse – Offender sentenced to a total effective sentence of two years’ imprisonment – Offender granted immediate release upon his entering into a recognisance release order in the sum of $100 requiring him to be of good behaviour for a period of 3 years – Offender registered as a sex offender – Whether sentences manifestly inadequate – Whether sufficient weight given to nature, circumstances and gravity of the offences – General deterrence – No prior convictions – Guilty plea – Prospects of rehabilitation – Likelihood of re-offending – Appeal allowed – Offender re-sentenced to a total effective sentence of three years’ imprisonment – Offender to serve two years imprisonment before being eligible for release pursuant to section 20(1)(b) of the Crimes Act 1914 (Cth) upon giving security by recognizance.
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| Appearances: | Counsel | Solicitors |
| For the Director of Public Prosecutions (Cth) | Mr D Gurvich | Solicitor for Director of Public Prosecutions (Cth) |
| For the Respondent | Mr O P Holdenson QC with Mr D Dann | Rainer Martini & Associates |
REDLICH JA:
I have had the benefit of reading in draft the reasons of Harper JA and agree that that the appeal should be allowed. Notwithstanding the important considerations that the respondent has been at his liberty since the original sentences were pronounced and that he is standing for sentence a second time and to that extent is doubly jeopardised, I agree, substantially for the reasons which Harper JA has given, that an immediate custodial sentence must be imposed. I would however have imposed lesser sentences on the individual counts, a lower total effective sentence and a shorter non-parole period than he proposes, but as mine is a minority view in this regard, no purpose would be served by my saying anything further.
HARPER JA:
The respondent’s offending and the sentences imposed
The respondent is a young man approaching 25, having been born on 15 July 1985. On 29 January 2009, he pleaded guilty in the County Court to six counts, each of which alleged the illegal use of an electronic carriage service in breach of the Commonwealth Criminal Code. The illegality said to be involved was that the service was used to carry images that displayed either pornographic behaviour with children (three counts) or child abuse (the other three counts). Counts 1 and 5 alleged such use in order to access images of child pornography (count 1) or child abuse (count 5); counts 2 and 4 concerned the transmission of such images of, respectively, child pornography and child abuse; and counts 3 (child pornography) and 6 (child abuse) concerned the possession of such images. Each charge carries a maximum penalty of 10 years’ imprisonment.
The two offences of possession occurred on 10 April 2008 at the address at Mount Dandenong at which the respondent lives with his mother and two of his siblings. The offences of transmitting and accessing child pornography were committed between 24 April 2007 and 10 April 2008. That of transmitting child abuse material took place between 24 April 2007 and 9 April 2008, while that of
accessing such material occurred between 8 July 2007 and 6 November 2007. Given the pleas of guilty, nothing turns on the particularity of those dates. It is nevertheless relevant that, in relation to the transmission of and access to the images in question, the offending extended over a period of months. In particular, the length of time involved in accessing child pornography may preclude a submission that the offence was an isolated one. It may likewise make it difficult to persuade the sentencing judge that the offender obtained no gratification from that access.[1]
[1]R v Gent (2005) 162 A Crim R 29, [26]; [2005] NSWCCA 370, [26]. The reference is to a passage in the sentencing remarks of the judge from whom the appeal was brought. It was quoted in the judgment of Johnson J (with whom McClennan CJ at CL and Adams J concurred).
Accessing child pornography is contrary to s 474.19(1)(a)(i) of the Criminal Code. Transmitting that material falls under s 474.19(1)(a)(iii), while possessing it with the intention of committing an offence is contrary to s 474.20(1). Accessing child abuse material is contrary to s 474.22(1)(a)(i). Transmitting it is an offence against s 474.22(1)(a)(iii); and possession of it with the intention of committing an offence falls under s 474.23(1).
The respondent was sentenced on 11 March 2009. On each of the three offences which involved child pornography (counts 1, 2 and 3), he was sentenced to be imprisoned for a period of 1½ years. Although the remaining counts (4, 5 and 6) concerned child abuse, and although on each of those counts (together with count 3) the respondent was sentenced as a serious sexual offender (and the court was therefore required to regard the protection of the community from the respondent as the principal purpose for which the sentence was imposed)[2] the sentence in each of the three latter cases was imprisonment for 3 months. The learned sentencing judge directed that 3 months of the sentences imposed on each of counts 2 and 3 be served cumulatively with the sentence imposed on count 1. The child abuse offences, however, were not the subject of any order for cumulation. The result was a total effective sentence of 2 years’ imprisonment. Pursuant to s 34 of the Sex Offenders Registration Act 2004, the respondent was required for the balance of his life to be registered as a sex offender. Nevertheless, pursuant to s 21B of the Crimes Act 1958, his Honour ordered his immediate release upon his entering into a recognisance release order in the sum of $100 requiring him to be of good behaviour for a period of 3 years.
[2]Sentencing Act 1991, s 6D(a).
The Director’s appeal and its grounds
The Director of Public Prosecutions for the Commonwealth appeals against each sentence. By a notice of appeal dated 30 November 2009, he seeks to rely upon three grounds of appeal. The first is that the individual sentences imposed are manifestly inadequate, as is the order that the respondent be released forthwith. The second is that the judge failed to order any cumulation with respect to counts 4, 5 and 6. The final ground of appeal is that his Honour erred in having regard to the consequences to the respondent arising under the Sex Offenders Registration Act 2004. Reliance on these latter grounds is opposed.
The ground of manifest inadequacy, which now is the first of the three upon which reliance is sought to be placed, was the only ground put forward in the original notice of appeal, which is dated 6 April 2009. It was supported by a set of four particulars, as follows:
In imposing the sentence the learned sentencing judge:
(a)failed to give sufficient weight to the nature, circumstances and gravity of the offences;
(b)failed to give sufficient weight to the respondent being classed as a serious sexual offender on counts 3 through to 6.
(c)failed to give sufficient weight to the principle of general deterrence; and
(g)gave too much weight to the respondent’s age, guilty plea, absence of prior convictions, sex offender registration and personal circumstances, in light of the respondent’s prospects of rehabilitation and likelihood of re-offending.
In an unsigned document headed ‘Further Amended Grounds of Appeal’ and dated 28 July 2009, the Director sought to delete particular (b) and to add as grounds 2 and 3 those additional grounds upon which the Director now seeks to rely. But the 28 July document does not comply with the relevant legislative provision. Section 567A of the Crimes Act 1958 creates the Director’s right of appeal. That right arises once two conditions have been satisfied. The first of these is that a sentence has been passed on a person convicted on indictment (or for a relevant summary offence) heard and determined by the County Court; and the second arises when the Director considers that a different sentence should have been passed and is satisfied that an appeal should be brought in the public interest. If in those circumstances the Director desires to appeal, ‘he shall cause notice of appeal setting forth the grounds thereof to be given to the respondent by serving upon him notice in writing signed by the Director … personally of his intention to appeal …’[3] Notice of appeal must be given within one month after the passing of sentence, although the Court of Appeal may grant leave to extend that period.
[3]Crimes Act 1958, s 567A(2).
The original notice of appeal was signed by the Director and, being dated 6 April 2009 and served the following day,[4] was given within the one month allowed. The Further Amended Grounds of Appeal of 28 July 2009 fell outside that period, and were unsigned. That notice must therefore now be ignored. On the other hand, the notice of appeal dated 30 November 2009 is signed by the Director, and has since been filed and served. It includes the proposed two additional grounds of appeal, and seeks the deletion of particular (b). While having no difficulty with the proposed deletion, the respondent objects to the inclusion of the additional grounds. In these circumstances, the Court indicated that it would rule upon the objection when giving judgment on the appeal, but in the meantime would proceed to hear the appeal.
[4]See the affidavit of service sworn on 8 April 2009 by Helen Darnas of the Australian Federal Police.
In the end, however, the issue did not need to be confronted. In my opinion, for reasons which will become apparent, the appeal must be allowed on the ground that, because the sentencing judge failed to give sufficient weight to the nature, circumstances and gravity of the offences, the sentence imposed by the County Court was manifestly inadequate. It is therefore possible to determine the appeal on the basis of the notice of appeal as originally served, but without reference to particular (b) of the particulars set out in that notice. For the avoidance of doubt, however, I would refuse the application to amend the notice of appeal.
The circumstances and discovery of the offending
Accordingly, I turn to the circumstances, and to the discovery, of the offending. As put to the sentencing judge, the relevant facts are that on Thursday 10 April 2008 a search warrant was executed by the Australian Federal Police at the respondent’s home at 149 Ridge Road, Mount Dandenong. During the course of the following search, the respondent participated in a taped record of conversation, in the course of which he stated that pornographic material was located on his computer. He also admitted that he had received images of child pornography through the ‘Google Hello’ program and that he had, in addition, exchanged those images with others.
A taped record of interview was later conducted at AFP headquarters. The respondent then told the police that the images transmitted and received were generally of females, younger than 13 years of age, who were engaging in sexual acts. According to the respondent’s account to the police, his preference was for hard core pornography involving children who had not yet reached their teenage years.
Examination of the respondent’s computer revealed that between 4 April 2007 and 10 April 2008, he exchanged 16,259 images (some involving multiple transmissions of the same photographs) with 44 people.
In addition to the images, the police also discovered ‘chat’ logs in which the respondent spoke about his sexual preferences and history. The conversations contained much that was grossly pornographic, although he now claims that mere bravado predominated. He says that he was out to impress, and perhaps salivate, those chat room participants with whom he was conversing; and these motives operated to the exclusion of any truth in his accounts of illegal physical activity – of which, he says, there was none. That claim is not and was not disputed by the Director. The logs are not the subject of any charge. They may therefore be put to one side.
The extent of the respondent’s criminality
Having at the request of the prosecutor viewed the images recovered by the police, the sentencing judge described them as depicting:
1.Oral and vaginal penetration of females who appeared to be as young as 3 months by the penis, finger, tongue and objects.
2Adult males ejaculating over the naked bodies of female children ranging from approximately 3 months to 16 years.
3.Female children ranging in age from 2 to 16 years performing fellatio on adult males, most of whom appeared to be at least middle aged.
4.Extremely explicit images of naked female children ranging from approximately 3 months to 16 years. These photographs concentrated on their genitals and anus.
5.Some images of naked children ranging in ages of approximately 8 to 12 years being tied and bound in some form of restraint.[5]
[5]Reasons for Sentence, [7].
Later in his reasons for sentence his Honour described what he had seen in the following more general terms:
It is difficult to overstate the effect of viewing those images. I have attempted to describe them but it is difficult to convey the full horror of many of those images. Some involve sexual acts on girls who are properly described as just babies. Others display extreme sexual acts with extremely young children.[6]
[6]Reasons for Sentence, [26].
In these circumstances it is not surprising that his Honour’s final summation of the extent of the respondent’s criminality concluded with these words:
There are scales of pornography. It is not all the same. In my opinion, on any such scale, the pornography which you possessed and traded must be equated with the very worst. Certainly, it is the worst that I have seen. I think this is because of the level of exploitation of the defenceless that is involved.[7]
[7]Reasons for sentence, [29].
It is not suggested that the judge’s description was inaccurate. This is not surprising, given that the respondent accepted the summary which the prosecutor read to his Honour during the course of the plea.[8] That summary is consistent with his Honour’s observations. It is also consistent with my own. The Court having accepted the submission of counsel for the Director that it assess the criminality of the images by viewing them, or a representative sample of them, for itself, I viewed such a sample mindful of the need to ensure that the natural abhorrence of such offending should not divert me from the task of reviewing dispassionately the adequacy of the sentences imposed. In the result, I am satisfied that the degree of criminality involved in the respondent’s behaviour is very high indeed. It is in this context that one must bear in mind the maximum penalty of 10 years’ imprisonment. If the criminality is at the top end of its range, the determination of the appropriate sentence should reflect that circumstance, while also taking into account all the matters, including current sentencing practises and any relevant mitigating factors, to which – as required by s 5(2) of the Sentencing Act 1991 – the sentencing court must have regard.
[8]Plea transcript, pp.10 and 14.
The extent of the respondent’s criminality can be better appreciated when it is remembered that, as his Honour pointed out in his reasons for sentence, these were far from victimless crimes. If it was difficult for the judge ‘to convey the full horror of [viewing] many of those images’, one can with even more difficulty attempt to imagine how destructive must have been the experience of those children forced to suffer the agony of ‘being abused in a most profound and abhorrent way’.[9] At the same time, it is a notorious fact that such abuse can, and often does, cause irreparable and very severe psychological and psychiatric harm. The Victorian Parliament has expressed its opinion of the worst of the criminality depicted in the images. Sexual penetration of a child under 10 attracts a maximum penalty of 25 years’ imprisonment. Consistently with this, when on 24 November 1999 the Federal Attorney-General introduced into the Commonwealth Parliament the Customs Legislation Amendment (Criminal Sanctions and Other Measures) Bill, making the offence of importing child pornography punishable by 10 years’ imprisonment, he said:
Shielding the community from injury and protecting children from exploitation are two essential responsibilities of a just society. While each member of society should uphold public safety and protect children from harm, governments and parliaments have a unique role in establishing laws which can ensure the protection of the community and deter crime and anti-social behaviour.
…
Prevention of harm is crucial. Deterrence for those who would cause damage to our community is equally vital. This Bill will provide for increased penalties for a range of import and export offences under the Customs Act 1901 … More serious offences, such as those involving … child pornography, will attract a penalty of $250,000 and/or 10 years’ imprisonment. The Commonwealth’s prosecution policy, implemented by the Director of Public Prosecutions, will form the basis of all decisions for the new criminal offences. … By any standard, these are serious penalties to address serious offences.
[9]Reasons for sentence, [27].
A similar policy informed the enactment, with effect from 1 March 2005, of the Crimes Legislation Amendment (Telecommunications Offences and Other Measures Act) (No 2) 2004 (Cth). On 4 August 2004, when delivering the second reading speech in support of the Bill, the Parliamentary Secretary to the Minister for Finance and Administration said:
This Bill continues the Australian Government’s proactive approach to updating criminal laws in light of rapid technological change.
…
The Bill contains new offences dealing with the use of the internet to access, transmit and make available child pornography and child abuse material, as well as the possession or production of such material with intent to place it on the internet. These offences complement existing offences prohibiting the importation of such material into Australia and will carry a maximum penalty of 10 years’ imprisonment.
Applicable sentencing principles
When construing and applying Commonwealth legislation, this Court follows principles of comity in according respect to the decisions of intermediate appellate courts of other jurisdictions concerning the same legislation. It is therefore worth recording that there seems to be unanimous support across the jurisdictions for a number of propositions. First, that the problem of child pornography is an international one.[10] Secondly, that the prevalence and ready availability of pornographic material involving children, particularly on the internet, demands that general deterrence must be a paramount consideration.[11] Thirdly, that those inclined to exploit children by involving them in the production of child pornography are encouraged by the fact that there is a market for it.[12] Fourthly, that those who make up that market cannot escape responsibility for such exploitation.[13] Fifthly, that limited weight must be given to an offender’s prior good character.[14] Sixthly, that a range of factors bear upon the objective seriousness of the offences to which the respondent in this case pleaded guilty.[15] They include:
[10] R v Jones (1999) 108 A Crim R 50, 51 (Kennedy J).
[11]Assheton v The Queen (2002) 132 A Crim R 237, [35]–[36] (Malcolm CJ, Murray and Steytler JJ agreeing).
[12] R v C [2004] QCA 469, [21] (McMurdo P).
[13]R v Gent [2005] NSWCCA 370, [43] (Johnson J, McClennan CJ at CL and Adams J concurring).
[14]Ibid [65].
[15]Ibid [99].
(a)the nature and content of the pornographic material – including the age of the children and the gravity of the sexual activity portrayed;
(b)the number of images or items of material possessed by the offender;
(c) whether the possession or importation is for the purpose of sale or further distribution;
(d) whether the offender will profit from the offence.
The respondent did not profit from his involvement with child pornography and child abuse material. But when judged against each of the remaining criteria, his criminality is at the high end of the scale.
For reasons which to the ordinary lay mind are very hard to comprehend, there are those who have such lack of empathy that they cannot assimilate a simple truth: that what they see is not merely a titillating picture, but the degradation of human beings too young to avoid the exploitation to which they are being subjected. One must conclude that the respondent himself demonstrated this lack of empathy, given that the sentencing judge described the offending images as ‘certainly ... the worst that I have seen ... because of the level of exploitation of the defenceless that is involved’. And there is indeed something deeply inhuman in treating another human as the mere object by which one’s crudest and most selfish cravings are satisfied. The sentencing judge appreciated this when he added:
No matter where it occurs and no matter to whom it occurs, child sexual abuse cannot be tolerated. Australian courts must do their part to eliminate this horrendous activity ...
It was this attitude that resulted in the creation of these offences and has motivated the courts to enforce the attitude to the extent that they can. For this reason, a very significant sentencing factor in this instance is what is known as general deterrence; that is, the desire to point out to the community that accessing or processing or using child pornography in any way is simply beyond the pale. It will not be tolerated.[16]
[16]Reasons for sentence, [27]–[28].
I respectfully agree with everything his Honour said. We part only in that a totally suspended sentence of two years’ imprisonment is, as it seems to me, manifestly incapable of achieving the ends which the judge very properly had in mind. The gap is, I think, so great as to allow concepts of deterrence and denunciation to slip through almost without trace; and, in short, to shock the public conscience. The courts can and must do more. Putting aside, for the moment only, the relevant mitigating factors, other important considerations – the maximum penalty, current sentencing practices, the nature of the images in question, and the effect which their production must have had on the infants depicted – indicate a total effective sentence of immediate imprisonment for some years.
The weight to be given to circumstances of mitigation
From the time of the initial contact of the police with him, the respondent admitted his association with the images which are the subject of the several counts. For that he must receive credit. He co-operated with the authorities thereafter. That too counts in his favour. Nor did he trade in pornography for profit. In my opinion there is not much else that mitigates his criminality.
It is true that the respondent has no prior convictions. He therefore comes to be sentenced as a person of good character. On the other hand, I respectfully endorse on this issue the approach of other intermediate appellate courts, as illustrated by that of the Court of Criminal Appeal in the NSW case of Mouscas v R.[17] The appellant was a security guard, 39 years old and living with his parents when, in March 2007, the NSW police executed a warrant at his home. They then found 41,923 graphic files and 251 video files which the sentencing judge (having viewed a sample) described as ‘falling within the most serious category of possible material that could be described as child pornography.’ The appellant pleaded guilty to one count of possession. Having been sentenced to 2 years and nine months’ imprisonment, he sought and was granted leave to appeal on the ground that the sentence was excessive. In the result, however, the appeal itself was dismissed.
[17][2008] NSWCCA 181 (Allsop P and James and Price JJ).
In Mouscas, it was contended for the appellant that the sentencing judge did not give sufficient weight to his previous good character. Price J, in a judgment with which the other members of the Court agreed, rejected this argument. He said that, for ‘the offence of possession of child pornography where general deterrence is necessarily of importance and is frequently committed by persons of prior good character, it is legitimate for a court to give less weight to prior good character as a mitigating factor.’[18]
[18]Ibid [37].
In the present case, the sentencing judge placed reliance on the respondent’s youth and, to some extent, on his naivety.[19] As his Honour correctly observed, the respondent does not fit the profile of the middle-aged man with a psycho-sexual history manifested in multiple offences. On the other hand, it seems to me that it was neither youth nor naivety but, as the psychological evidence makes clear, a very troubling deficiency in the respondent’s capacity for insight, which resulted in his lack of concern for the children whose degradation gave him pleasure. Nobody of the respondent’s age could be so naïve as not to appreciate that child pornography depicts seriously exploitative deviance. And, indeed, he has confessed to knowing that what he was doing was wrong. Not only that, but its wrongfulness was one of its attractions. Viewing these images, he told a consultant psychiatrist (Dr Adam Deacon) ‘was like a quiet way of being naughty’. He wanted to ‘do something taboo because I had always been a good kid’.
[19]Reasons for sentence, [33].
This, of course, was not the respondent’s sole motivation. He was sexually aroused by what he saw. The images also provided, as he told Dr Deacon, some ‘solace’ for a ‘void’.
In a letter written for the purpose of the respondent’s plea, his mother says that her son ‘now understands the full ramifications to both himself and those offended against.’ She added that she ‘certainly knew’ from her conversations with him that he ‘is very remorseful.’
His Honour took Mrs D’Alessandro’s letter into account in his reasons for sentence.[20] Also relevant were the results of consultations which the respondent had, for the purposes of his plea, with a psychiatrist (Dr Deacon) and a clinical psychologist (Dr Rachel MacKenzie). Neither is as confident as Mrs D’Alessandro. Dr Deacon speaks of the respondent’s ‘shallow remorse’ and of his mild indifference to his circumstances. The respondent also presented to the psychiatrist with ‘an emotional style that appears detached and restricted in range.’ As he insisted in his conversations with Dr Deacon, he was not at risk of seeking sexual contact with children, but included in his chat room conversations ‘fantasies of what he would like to do sexually’ with them. Dr Deacon concluded that ‘he has paedophilic tendencies and must be considered a risk of further offending if his deviant sexual arousal is not professionally managed’, and that (as the respondent himself told Dr Deacon) his ‘offending behaviour has only ceased because he was caught.’ As for the risk of his re-offending, Dr Deacon was unable to be definite. But, in his opinion, the only thing ‘that has potentially reduced his future risk is the deterrence of ... being sentenced to custody’.
[20]See, for example, [13].
Dr Rachel MacKenzie, a clinical psychologist with Forensicare, saw the respondent on 16 February this year – about three weeks after his consultation with Dr Deacon. He denied any sexually deviant interests, apart from his interest in hard core prepubescent pornography, and told Dr MacKenzie that he had no wish for physical sexual contact with children. He considered his offending to be at ‘the minor end of the spectrum’, and had never really thought about how the abuse might have affected those subjected to the acts he habitually viewed; but, as he remarked to her in another manifestation of his lack of empathy, they did not look ‘upset’.
Both counsel for the respondent and the judge discarded remorse as a mitigating factor. Counsel did refer to Mrs D’Alessandro’s letter, and contrasted it with Dr Deacon’s opinion; and he told the judge that his client does not on this point accept what the psychiatrist has written. But the judge may well have thought that the psychiatrist’s opinion coincides with the tenor of Dr MacKenzie’s report, and preferred the professional and disinterested view of the two experts to the (perfectly understandable, but interested) opinion of the respondent’ mother. His Honour saw no evidence of remorse. He therefore proceeded to put it aside. I respectfully agree that he was right to do so.
Dr MacKenzie concluded that the respondent did not feel particularly bound to adhere to moral principles. He also, in her opinion, had little regard to matters of conscience. While tests administered by her placed the respondent in the low risk category for the commission of a contact offence of a sexual or violent nature, he was assessed as being within a moderate range of risk for non-contact sexual offences. One indicator was his youth; he had, as he told Dr MacKenzie, been interested in pornography from about the age of 16. An early beginning is a discomforting portent. To this could be added ‘indications of minimization of his offending behaviour’ and problems of self-awareness (or lack of it) and emotional detachment, together with the influence of the deviant culture of the chat room – ‘the only group in which he has found acceptance.’
Dr MacKenzie and Dr Deacon both emphasised the need for appropriate treatment. It is of real concern, if Dr MacKenzie is right, that the respondent is unlikely to be able to access such treatment from prison. If there is any significant argument for a non-custodial disposition, this (as it seems to me) is it.
On the other hand, there is I think an imperative need for both specific and general deterrence. Specific deterrence is indicated because (certainly in the absence of treatment) a non-custodial sentence is not likely to deter this young man, who is – according to the available evidence – unable to generate from within that empathy without which he will remain incapable of appreciating the evil to which he is a party. And the evil that is the making and distribution of pornographic images involving children is so great, and so comparatively common, and so readily facilitated by modern technology, that every attempt must be made to limit its scope and range – indeed, to eliminate it altogether, if that is possible. The same, but with even more emphasis, must be said of images depicting child abuse. Hence the need for general deterrence.
It is sometimes argued that the reporting conditions imposed under Part 3 of the Sexual Offenders Registration Act 2004 reduce the risk of reoffending and therefore lessen the weight to be accorded to the protection of the community and to specific deterrence. As Charles JA noted in The Queen v Fidler, ‘there could be unusual cases in which a sentencing judge might take the view that the reporting conditions imposed under [that] Part ... were of such a nature as significantly to reduce the risk of further offending by a particular accused person’.[21] But in the same judgment, his Honour quoted with approval the following passage from the judgment of Callaway JA in DPP v Ellis:
As a general rule, in my opinion, an offender’s reporting obligations under the Sex Offenders Registration Act are irrelevant. Parliament has decided that persons sentenced for particular offences constitute a class in relation to whom such obligations are appropriate. They are an incident of the sentence. It would unduly burden the sentencing process if judges were required to take them into account any more than if they were required to take into account other ordinary incidents of the criminal justice system. An exception should be recognised only where the reporting obligations operate with unusual severity on a particular offender. In other words, they are relevant to sentencing only in exceptional circumstances.
[21][2006] VSCA 17, [16].
The particular principle which the Director sought to invoke in the present appeal was identified in House v The King:[22]
It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
[22](1936) 55 CLR 499, 505.
In my opinion, for the reasons I have endeavoured to express, a substantial wrong has occurred in this case. In these circumstances, it is necessary for this court to allow the appeal and re-sentence the respondent. In doing so it is also necessary to allow for double jeopardy and for current sentencing practices. The Court must also bear in mind that special diffidence is required when considering the imposition of a sentence of immediate custody upon a respondent not subjected to such punishment by the court below. I will briefly address each of these issues.
The difficulty of comparing sentences arises because no two cases are identical, and exact comparisons cannot therefore be made. The problem is especially pronounced in cases of child pornography and when dealing with images of child abuse, because although the nature and content of the material bears directly upon the seriousness of the offence, it is generally if not invariably impossible to compare the material in one case with that in another. All jurisdictions, however, have declared the offences the subject of the present appeal to be very serious. And the material seized from the present respondent was of a very high level of depravity.
In these circumstances, an appropriate total effective sentence – had the respondent been sentenced by the County Court – would in my opinion have been in the range of 5-6 years’ imprisonment. In coming to that conclusion, I take into account the respondent’s youth, his plea of guilty and his lack of prior convictions. I appreciate that in few if any reported cases was a penalty as heavy as this imposed. But in few if any of those cases were the images in question worthy, as they were here, of being – to repeat the words of the sentencing judge – ‘equated with the very worst.’
In any event, while comity and current sentencing practices are matters to which careful attention should be paid, a sentencing judge who concludes – as Nettle JA sitting as a trial judge did in R v Ibrahim[23] – that current sentencing practices are not consistent with the statutory maximum for the offence in question, is not constrained by those practices.[24] The maximum sentence provides a guide to the seriousness with which the offence should be viewed, and serves as a directive to courts on how to weigh the gravity of the offending conduct.[25] As the majority of the members of the High Court said in Markarian v R:
[C]areful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.[26]
In some cases, as this Court recognised in DPP v CPD,[27] a tension may arise between current sentencing practices and other matters specified in s 5(2) of the Sentencing Act 1991. One such occurs when Parliament has increased the maximum penalty for an offence, but the sentencing tariff for that offence does not thereafter reflect the change. Another may occur when a new offence is created, and the courts do not impose penalties which have due regard to the maximum. This is not the place to consider whether that is what happened following the introduction in 2005 of the current offences of misusing a carriage service. In any event, it may be too early to tell. But in my opinion this Court must do what it can to ensure that the penalties imposed for the offences with which the respondent is charged reflect the will of the Commonwealth Parliament.
[23][2006] VSC 96.
[24]DPP v CPD [2009] VSCA 114 (Maxwell P, Redlich JA and Robson AJA).
[25]R v Sibic (2006) 168 A Crim R 305, [14]–[17] (Redlich JA).
[26](2005) 228 CLR 357, [31] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
[27][2009] VSCA 114, [76].
Because this is a Director’s appeal, the respondent cannot be sentenced to the total effective sentence that would have been appropriate at first instance. There are two interlocking reasons. The first is that, if the respondent is to be re-sentenced, then he is at present entitled to have the benefit of what has come to be known as double jeopardy, a concession to convicted persons shortly to be removed by statute. At present, current sentencing practice ordinarily requires a court when re-sentencing to give recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than that which it considers should have been imposed in the first instance.[28] Secondly, that principle, taken together with considerations of mercy, has led appellate courts to be loathe to impose an immediate custodial term where such a term has not been imposed as part of the initial sentence. This is a point strongly and rightly made by senior counsel for the respondent. I accept at once that, in the words of Eames JA in DPP v Anderson ‘it is a very serious step to imprison a person who has been dealt with and released into the community by a trial judge.’[29] But although a matter of importance, it will not – of itself – prevent the court in an appropriate case from imposing on re-sentence a term of immediate imprisonment.[30] Although the step is
only to be taken after very careful consideration, in my opinion this is an appropriate case for the imposition of such a punishment.
[28]R v Clarke [1996] 2 VR 520, 522 (Charles JA).
[29][2005] VSCA 68, [59], cited with approval by this Court in DPP v Feveleaki (2006) 165 A Crim R 524, [26].
[30]DPP (Cth) v Vestic [2008] VSCA 12, [27]; DPP v Best (1998) 100 A Crim R 27, 132–133.
In my opinion the respondent should, on each of counts 1, and 2, be sentenced to 1 year and 6 months’ imprisonment. On count 3, for which (as for counts 4, 5 and 6) he must be sentenced as a serious sexual offender, the appropriate disposition is, I think, one year and nine months’ imprisonment. On each of counts 4, 5 and 6, where child abuse was involved, the appropriate punishment is in my opinion 2 years’ imprisonment. Six months of the sentence on count 3, and one year of the sentence on count 4, should be served cumulatively upon the sentence on count 2; but otherwise all sentences should be served concurrently. The result is a total effective sentence of 3 years’ imprisonment. I would order that the respondent be released pursuant to section 20(1)(b) of the Crimes Act 1914 (Cth) after serving a period of two years imprisonment in respect of the sentences imposed upon giving security by recognizance in the sum of $100 to comply with the condition that he be of good behaviour for twelve months. There will of course be no change to the respondent’s status as a registered sex offender. I add that, but for the respondent’s plea of guilty, I would have sentenced him to a total effective sentence of 4 years and six months’ imprisonment, with a direction that he serve 3 years before being eligible to be released pursuant to section 20(1)(b) of the Crimes Act 1914 (Cth) on the conditions to which I have referred.
WILLIAMS AJA:
I agree with Harper JA that the appeal should be allowed and the respondent re-sentenced as his Honour proposes, for the reasons he gives.
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