DPP (Cth) v Garside
[2016] VSCA 74
•20 April 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0200
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) and DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| LESLY ALBERT GARSIDE | Respondent |
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| JUDGES: | REDLICH, PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 15 February 2016 |
| DATE OF JUDGMENT: | 20 April 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 74 |
| JUDGMENT APPEALED FROM: | DPP (Cth) v Garside (Unreported, County Court of Victoria, Judge McInerney, 23 September 2015) |
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CRIMINAL LAW – Joint State/Commonwealth Director’s appeal against sentence – One charge of use of carriage service to access child pornography – One charge of knowingly possess child pornography – Total effective sentence of 4 years Community Corrections Order with 300 hours of community work and $5,000 fine – Whether imposition of CCO manifestly inadequate – Seriousness of accessing and possessing child pornography – Immediate term of imprisonment ordinarily expected for offending of this nature – Importance of general deterrence in child pornography offending – DPP (Cth) v Zarb [2014] VSCA 347, DPP v Smith [2010] VSCA 215; DPP (Cth) v D’Alessandro (2010) 26 VR 477, applied – DPP (Cth) v Guest [2014] VSCA 29; R v De Leeuw [2015] NSWCCA 183; R v Porte [2015] NSWCCA 174, discussed.
CRIMINAL LAW – Accessing child pornography – Classification of images and videos according to ANVIL scale – Lower classification of images and videos does not reduce objective gravity of offending – Category 1 material covers wide range of activity – Categorisation of material to be considered within context of offending as a whole in order to determine objective gravity – DPP (Cth) v Zarb [2014] VSCA 347; Porte v The Queen [2015] NSWCCA 174; Director of Public Prosecutions (Cth) v Watson [2016] VSCA 73, discussed.
PRACTICE AND PROCEDURE – Cumulation on counts where Commonwealth and State offending occurs – Boulton v The Queen [2014] VSCA 342, Atanackovic v The Queen (2015) 326 ALR 159, Porte v The Queen [2015] NSWCCA 174 discussed – Cumulation between State and Commonwealth child pornography offences generally expected.
CRIMINAL LAW – Director’s appeal against sentence – Residual discretion not to intervene – CMB v Attorney-General (NSW) (2015) 89 ALJR 407 (‘CMB’); DPP v Karazisis (2010) 31 VR 634; DPP v Zhuang [2015] VSCA 96 [49], applied – Compliance with CCO for over 7 months – No public interest in removing respondent from civil society and imposing term of imprisonment – Good prospects of rehabilitation – Residual discretion not exercised adversely to respondent – Appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr R J Bromwich SC Ms K Brekweg | Mr M Pedley, Solicitor for Public Prosecutions (Cth) |
| For the Respondent | Ms C M Randazzo SC | HWMK Lawyers |
REDLICH JA
BEACH JA:
Overview
This is a joint appeal against sentence brought by the Commonwealth Director of Public Prosecutions and the Victorian Director of Public Prosecutions (‘the Directors’), in relation to the sentence imposed on the respondent in respect of one charge of accessing child pornography and one charge of possessing child pornography.
On 23 September 2015, following a guilty plea, the respondent was sentenced as follows:
| Charge on Indictment | Offence | Maximum | Sentence | Cumulation |
| 1 | Access child pornography using a carriage service [Criminal Code (Cth) s 474.19(1)] | 15 years’ imprisonment [Criminal Code (Cth) s 474.19(1)] | 4 year CCO | N/A |
| 2 | Knowingly possess child pornography [Crimes Act 1958 s 70(1)] | 5 years [Crimes Act 1958 s 70(1)] | 4 year CCO and $5,000 fine | N/A |
| Total Effective Sentence: | 4 year Community Corrections Order with 300 hours of community work and $5,000 fine | |||
| Non-Parole Period: | N/A | |||
| Pre-sentence Detention Declared: | N/A | |||
| 6AAA Statement: | An unspecified term of imprisonment | |||
| Other orders: 15 year reporting period pursuant to s 34 of Sex Offenders Registration Act 2004 | ||||
The Directors rely upon a single ground of manifest inadequacy. They submit that had proper weight been given to the principles governing sentencing for child pornography related offending and to the relevant circumstances of the offence and the respondent, a sentence of a Community Correction Order (CCO) on each charge was not reasonably open to the sentencing judge.
The following particulars were pleaded in support of the ground of manifest inadequacy:
(i) Failed to give sufficient weight to the nature and circumstances of the offending;
(ii) Failed to accumulate to any degree any of the sentences reflective of separate offending and/or to impose any separate penalty for the Commonwealth offending;
(iii) Failed to have appropriate regard to general and specific deterrence, denunciation and punishment;
(iv) Failed to have appropriate regards to the principles espoused by the majority in Director of Public Prosecutions (Cth) v Zarb;[1]
[1][2014] VSCA 347 (although cited in the particulars as [2014] VSCA 35).
(v) Failed to give sufficient weight to the need for consistency in sentencing standards; and
(vi) Gave undue weight to:
(a) The respondent’s plea of guilty; and
(b) The respondent’s lack of prior convictions and prior good character.
For the reasons that follow, we consider the sentences imposed to be manifestly inadequate but would nonetheless, in the exercise of the residual discretion, dismiss the appeal.
Circumstances of the offending
On 26 March 2015, the Australian Federal Police (‘AFP’) executed a search warrant on the respondent’s address. The search warrant was executed in order to investigate information received by the AFP that between 27 February 2015 and 22 March 2015, the IP address registered to the respondent was being used to access child pornography files. During the search, the AFP seized a Toshiba laptop and a Toshiba external hard disk drive.
The external hard drive was primarily being used to back up the laptop. Approximately 85 percent of the material found on the external hard drive was also found on the laptop.
Analysis of the material seized indicated a total of 6,018 items, including images and video of child pornography material. The child pornography material was classified by the Australian National Victim Identification Library (‘ANVIL’) as follows:
Toshiba Laptop Toshiba HDD Category Images Video Images Video Total 1: No sexual activity 5479 103 2 165 5749 2: Solo/sex acts between child 59 36 0 23 118 3: Adult/child non-penetrate 8 2 0 3 13 4: Adult/child penetrate 29 46 0 38 113 5: Sadism/bestiality/child abuse 16 3 0 6 25
The Prosecution Opening, exhibited on the plea, provided further detail as to the type of material within each category:
Category 1 files predominantly included a series of posed photographs depicting girls approaching or at the early stages of teenage development engaged in sexually suggestive poses, including general nudity and explicitly focus on genitals.
Category 2 files included webcam video footage of girls in the same range as for Category 1, masturbating in front of a webcam. Other images and videos in this category include sexual activity between children of similar ages, predominantly between girls.
Category 3 files included both adult males and adult females performing sexual acts on children, including masturbation between children and adults of both sexes. The age range of these images included pre-pubescent girls.
Category 4 files predominantly depicted penile-vaginal penetration of girls, with some files depicting oral penetration of both boys and girls. One such series of images depicts oral sex being performed on a toddler-aged boy by an adult female.
Category 5 files included a video and photo series … which depicted a girl at or approaching puberty, engaged in various depraved acts of sadism and bestiality with an adult male and large dog.
The respondent, then aged 55 years old, participated in a taped Record of Conversation during the execution of the warrant. After being cautioned and informed of his rights, he stated:
·He downloads both video and image child pornography files using the peer to peer programs ‘Frostwire’ and ‘BitTorrent’;
·He has downloaded child pornography for a number of years;
·He saves the child pornography to his ‘My Documents’ folder on his laptop;
·He recently purchased an external hard drive as he wanted to get the child pornography off his laptop;
·He copied most, if not all, of his child pornography collection from his laptop and onto the external hard drive during the past week;
·He intended on deleting all the child pornography from his laptop because he thought it would be safer but had not done so;
·He cannot explain why he has been accessing child pornography;
·He is not sexually attracted to children;
·He sometimes masturbates to the child pornography material he has accessed, and sometimes thinks about it after having downloaded it;
·He enters key words in particular websites to search for child pornography and the computer program downloads them; and
·He has not told anyone about his use of child pornography, including his wife.
The offending was said to have occurred over a period covering approximately 8 months from 2 July 2014 to 25 March 2015.[2]
[2]DPP (Cth) v Garside (Unreported, County Court of Victoria, Judge McInerney, 23 September 2015) [6], [39] (‘Reasons’).
Sentencing Remarks
In sentencing, his Honour stated that the seriousness of charge 1 was demonstrated by the maximum penalty of 15 years,[3] and that charge 2, an offence under the Crimes Act 1958 (‘Crimes Act’), was not as serious as the maximum penalty proscribed was one of five years’ gaol.[4]
[3]Ibid [2].
[4]Ibid [3].
His Honour, referring to the purpose of categorising the material said:
[i]t is true, and it has to be accepted, that there is no aggravation of these offences by being category 1 or 2. The fact they are not within the higher categories does not necessarily create any mitigation. I accept that totally. However it is valuable, and it is indeed important for such to be discriminated in order to determine the gravity in a particular case of the crime.[5]
[5]Ibid [13].
His Honour referred to the percentage of the 6,018 images and videos which fell within category 1. His Honour said:
It is not one of the most joyful experiences of a Judge to look at this material. This material was supplied to me to look at. There was, as I said, 95 per cent in the first category. It should not be misunderstood, such involves an inappropriate, and concentration on, display of young girls. A concentration in a sexual manner and display, upon their genitals or breasts, and their anus. Again not the most illuminating thing I have ever had to observe.
We come then to the second category and admittedly this was less than two per cent of what you held. However the materials in this, because the children were quite young, can only be described as disgusting and in nearly every instance quite graphic. It was very demeaning, and involved an almost gynaecological exploration of these young children.
The third category is, again, a very low proportion of what you had, but again involves fairly unsavoury matters. The fourth category involving penetrative sexual activity by adults with children, obviously such is an indication of the seriousness of such material. I think the only word appropriate for that level is that most of it is absolutely revolting, especially one that involves a very young baby.
The fifth category involves, again, a very low number, indeed only 0.2 per cent but involves abuse of child, and indeed in one case a video involving a dog licking a child’s vagina.[6]
…….
I accept the comments put to me by the learned prosecutor, as set out in R v Porte [2015] NSWCCA 174 [75], that all levels of this material are capable of possessing significance and gravity. All of the material from level 2 through to 5 were obnoxious. However the point has to be made that such was only five percent.[7]
[6]Ibid [14]–[17].
[7]Ibid [19].
In determining whether a custodial sentence was appropriate his Honour referred to a number of authorities including Director of Public Prosecutions (Cth) v Guest;[8] Director of Public Prosecutions (Cth) v D’Alessandro;[9] R v De Leeuw;[10] R v Gent;[11] Director of Public Prosecutions v Smith;[12] and Director of Public Prosecutions (Cth) v Zarb.[13]In discussing these authorities his Honour said:
[8][2014] VSCA 29 (‘Guest’).
[9](2010) 26 VR 477 (‘D’Alessandro’).
[10][2015] NSWCCA 183 (‘De Leeuw’).
[11](2005) 162 A Crim R 29 (‘Gent’)
[12][2010] VSCA 215 (‘Smith’).
[13][2014] VSCA 347 (‘Zarb’).
I would not agree with the proposition put in paragraph 38, Exhibit A, that non-custodial dispositions should only be contemplated in circumstances that can properly be said to be exceptional. It was in that context and given the totality of the videos that I have referred to, the prosecution submitted that immediate imprisonment should be imposed.
As I say the learned prosecutor relied in particular upon the comments in DPP v Guest [2014] VSCA 29, and in particular, given the correlation of the circumstances to Mr Garside’s case, as stated by Coghlan JA at [48] of that determination. In particular the learned prosecutor referred to the paragraph that I have just referred to. That is, where His Honour said, ‘A non-custodial disposition should only be contemplated in circumstances that are exceptional’.
Insofar as the Court takes into account other sentences and Court pronouncements, such is obviously done as part of the process of synthesis that a Court undertakes. In that regard, of course, I thank the Commonwealth for the list of comparative cased that they have given to me. The issue was raised in Hasan v R [2010] 31 VR 28. Under the heading ‘Consistency of Sentencing’ the Court stresses the first task of a sentencing Judge, when seeking to ascertain an appropriate sentence, is to assess the objective gravity of a particular offence. Of course the maximum penalty set by Parliament gives a good guide. They then go on to look and talk about cases, which assist a Judge to make objective assessments, but warns that there are limitations in such process. Those matters are further referred to in R v Hudson (2010) 30 VR 610 [27].
It seems to me that such is appropriate when I bear in mind both the facts and the statements made in Guest and the series of authorities that the learned prosecutor was kind enough to refer, which is set out in the materials that I have just indicated.
Insofar as the particular words of Coghlan JA it is always difficult, when one is sitting in an inferior Court, to be so bold as to make any comment. But being bold, and certainly not critical, in order to fully understand this I have, on prior occasions, when this case has been submitted by the Commonwealth, analysed the relevant cases. In particular that of D'Alessandro, Gent, Smith, Guest and DPP (Cth) v Zarb [2014] VSCA 347 ‘Zarb’.
The view adopted in Zarb, by the majority, which was to agree with the comments in Guest of Coghlan J is not the analysis that I prefer. The view expressed by Nettle JA in Smith at [23], as he then was, and Priest JA, summarised in the minority decision in Zarb, is the view which most closely reflects my experience of sentencing over the last 20 years. If I may quote Priest JA from Zarb, the comment that I refer to is at p.31, [71] where His Honour said:
‘With respect I do not think the view expressed by Coghlan JA can be accepted without qualification. It is not correct, in my view to posit that a non-custodial disposition should only be contemplated in circumstances that are exceptional. There is no statutory warrant for that view, let alone an inflexible legislative command that an offender must be imprisoned for this kind of offending unless exceptional circumstances exist’.
In my respectful submission the better analysis is as expressed by Nettle JA in Smith, as I have said at [23], which was as follows,
‘A sentence of immediate imprisonment might ordinarily be warranted. Cases where a sentence which does not involve a period of actual custody are not precluded. Each case must, of course, depend on its own particular facts’.
Of course in the case of Smith at paragraphs 27 and 29 is an analysis, as I have already indicated, similar to that of Priest JA. I think in the context of what might be seen to be a pedantic analysis, but important in this case, I am inclined to go with the Priest/Nettle view. I therefore reject that proposition put to me by the learned prosecutor, and indeed Mr Howe, with great respect, perhaps adopted by yourself.[14]
[14]Reasons [42]-[49].
His Honour observed that the respondent was a man who had spent ’55 years of his life without any criminal conviction’[15] and found as follows:
Mr Garside has taken steps, and has suffered appropriate shame, given the disclosure of these crimes to his family and given the steps he has taken with the psychologists, that I have referred to. I have confidence that if given an opportunity, Mr Garside is not a person who will be back before this Court again.[16]
[15]Ibid [51].
[16]Ibid [55].
In coming to a determination that a CCO was appropriate, his Honour once again referred to the significance of the high proportion of photographs in category one, saying
[t]his is not in any way to lessen the seriousness, but in assessing the gravity it is important to understand that 95 per cent of this material was, as I have indicated, in the first level, albeit still offensive. It is also appropriate to comprehend that as a result of such plea Mr Garside is to be subject to sexual reporting for the next 15 years.[17]
[17]Ibid [57].
Principles governing sentencing for child pornography offences
Before setting out the primary arguments of the Directors some reference to well established principles and considerations relevant to sentencing offending of this nature should be made.
Child pornography offences are considered especially grave by both the Courts and the legislature. In Director of Public Prosecutions (Cth) v Watson,[18] the reasons for which were published at the same time as these reasons, the legislature’s continuing response to such offending was considered to be of particular significance. The ‘access’ offending under the Criminal Code 1995 (Cth) (‘Criminal Code’), now carries the 15 year maximum penalty which was increased by 50 per cent in 2010,[19] despite only having been introduced in 2005.[20] These amendments reflect the legislature’s recognition, as stated in the Explanatory Memorandum to the 2010 amendments, ‘that the Internet is creating ever greater demands for new material of ever greater levels of depravity and corruption.’[21] In R v Porte,[22] while speaking about the legislative amendments of 2010, Johnson J said:
At the same time as maximum penalties for these offences have been increased, the courts have made clear that the ready availability of material of this type has warranted substantial penalties with general deterrence and denunciation being paramount considerations.[23]
[18][2016] VSCA 73.
[19]Crimes Legislation Amendment (Sexual Offences Against Children) Act2010 (Cth).
[20]Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No 2)2004 (Cth)
[21]Explanatory Memorandum, Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010, 81.
[22][2015] NSWCCA 174 (‘Porte’).
[23]Ibid [59].
General deterrence is to be a paramount consideration in sentencing child pornography offenders. In Fitzgerald v The Queen,[24] Hoeben CJ at CL said:
As his Honour recognised, general deterrence is of paramount importance when sentencing for these kinds of offences. This kind of offending primarily requires the imposition of sentences that will both deter others in the community from committing similar offences and which will punish and denounce the conduct of the offender. The ease and relative anonymity of the internet, the use by like-minded people of peer to peer file sharing technology to form networks exchanging such material and the difficulties of detection demonstrate the importance of general deterrence.[25]
[24][2015] NSWCCA 266.
[25]Ibid [33].
Similarly, in D’Alessandro,[26] Harper JA, with whom Redlich JA and Williams AJA agreed, said that the
prevalence and ready availability of pornographic material involving children, particularly on the internet, demands that general deterrence must be a paramount consideration.[27]
[26](2010) 26 VR 477.
[27]Ibid 483 [21] (emphasis added).
The objective seriousness of offending by employment of the internet as a tool through which to exploit children, even if the offender is not themselves procuring
such exploitation,[28] is grave. It must ordinarily be the subject of substantial punishment. The fact that an offender, is charged only with accessing child pornography material, does not mitigate the gravity of the offending.[29]
[28]R v Coffey (2003) 6 VR 543, 522 [30]; R v Cook; Ex parte DPP (Cth) [2004] QCA 469 [21]; R v Jongsma [2004] VSCA 218; Heathcote (A Pseudonym) v The Queen [2014] VSCA 37.
[29]Porte [2015] NSWCCA 174 [66]; Saddler v The Queen [2009] NSWCCA 83; R v Booth [2009] NSWCCA 89 [46].
Child pornography offences generally require that a person’s prior good character is to be given less weight. In Mouscas v The Queen,[30] Price J, said
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.[31]
[30][2008] NSWCCA 181.
[31]Ibid [37].
In construing and applying Commonwealth legislation, this Court applies principles of comity in according respect to the decisions of intermediate appellate courts of other jurisdictions concerning the same legislation. In D’Alessandro,[32] Harper JA (Redlich JA and Williams AJA agreeing) reviewed appellate decisions, and found there to be unanimous support across the jurisdictions for the following propositions:
First, that the problem of child pornography is an international one. 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. 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. Fourthly, that those who make up that market cannot escape responsibility for such exploitation. Fifthly, that limited weight must be given to an offender’s prior good character. Sixthly, that a range of factors bear upon the objective seriousness of the offences to which the respondent in this case pleaded guilty. They include:
(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.[33]
[32](2010) 26 VR 477.
[33]Ibid [21].
Since then, these principles have been frequently repeated in different appellate courts.[34] The matters relevant to sentencing for child pornography offences were further expanded upon by the New South Wales Court of Criminal Appeal in the recent decision of De Leeuw,[35] in these terms:
[34]Minehan v The Queen (2010) 201 A Crim R 243, 261–262 [96]–[101]; Smith[2010] VSCA 215 [23]; Guest[2014] VSCA 29 [25]; Heathcote (a pseudonym) v The Queen [2014] VSCA 37 [40]; R v Linardon [2014] NSWCCA 247 [58]; R v Martin[2014] NSWCCA 283 [37]; Porte [2015] NSWCCA 174.
[35][2015] NSWCCA 183.
Appellate courts throughout Australia have consistently stated that the following propositions apply to sentencing for child pornography offences:
(a) Unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted: R v Jongsma [2004] VSCA 218 ; 150 A Crim R 386 at 395 [14]; Hill v Western Australia [2009] WASCA 4 at [28]; R v Booth [2009] NSWCCA 89 at [48]; R v Sykes [2009] QCA 267 at [24]; DPP v Groube [2010] VSCA 150 at [24]; DPP (Cth) v D’Alessandro [2010] VSCA 60 ; 26 VR 477 at 483-4 [21]; Director of Public Prosecutions (Cth) v Guest [2014] VSCA 29 at [23]–[24]; DPP v Smith [2010] VSCA 215 at [23], [26]–[29].
(b) The objective seriousness of the offending is ordinarily determined by reference to the following factors:
(i) the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;
(ii) the number of items or images possessed;
(iii) whether the material is for the purpose of sale or further distribution;
(iv) whether the offender will profit from the offence;
(v) in the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised;
(vi) the length of time for which the pornographic material was possessed: R v Jongsma at 400 [28]; R v Gent [2005] NSWCCA 370; 162 A Crim R 29 at 49 [99]; DPP (Cth) v D’Alessandro at 483–484 [21]; DPP (Cth) v Guest at [25].
(c) General deterrence is the primary sentencing consideration for offending involving child pornography: Assheton v R [2002] WASCA 209; 132 A Crim R 237 at 246–247 [35]–[36]; DPP (Cth) v D’Alessandro at 483–484 [21]; Edwards v R [2013] VSCA 188 at [22]; DPP (Cth) v Guest at [25]; Heathcote (A Pseudonym) v R [2014] VSCA 37 at [40]; DPP (Cth) v Zarb [2014] VSCA 347 at [34].
(d) Less or limited weight is given to an offender’s prior good character: R v Gent at 44 [65]; DPP (Cth) v D’Alessandro at 483–484 [21]; Mouscas v R [2008] NSWCCA 181 at [37].
(e) 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: R v Jones [1999] WASCA 24; 108 A Crim R 50 at 51 [2]; Assheton v R at 246–247 [35]–[36].
(f) Offending involving child pornography is difficult to detect given the anonymity provided by the Internet: Mouscas v Rat [31]; R v Booth at [29].
(g) The possession of child pornography material creates a market for the continued corruption and exploitation of children: R v Coffey [2003] VSCA 155; 6 VR 543 at 552 [30]; R v Cook; Ex arte Director of Public Prosecutions (Cth) [2004] QCA 469 at [21]; R v Jongsma at 395 [14]; Heathcote (A Pseudonym) v R at [40].
(h) There is a paramount public interest objective in promoting the protection of children as the possession of child pornography is not a victimless crime — children are sexually abused in order to supply the market: R v Jones at 52 [9]; DPP (Cth) v D’Alessandro at 484 [23].
(i) The fact that an offender does not pay to access a child pornography website or was not involved in the distribution or sale of child pornography does not mitigate the offending: R v Coffey at 552 [30].[36]
[36]Ibid [72].
The Directors’ Appeal – Manifest Inadequacy
The Directors submit, as had been submitted during the plea, that a term of immediate imprisonment was the only appropriate sentence in the circumstances and that the imposition of a CCO was simply not within a sound exercise of the sentence judge’s discretion.
On a Crown appeal against sentence, it is well established that intervention by the Court of Appeal is only justified in circumstances where it is demonstrated that the sentences imposed falls clearly outside the range of sentences reasonably open to the sentencing judge. As Ashley, Redlich and Weinberg JJA said in Director of Public Prosecutions v Karazisis:[37]
As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was ‘wholly outside the range of sentencing options available’ to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and the offender.[38]
[37](2010) 31 VR 634 (‘Karazisis’).
[38]Ibid 662–3 [127] (citations omitted).
We turn to the particulars relied upon by the Directors to support their submission as to manifest inadequacy.
Failure to give sufficient weight to the nature and circumstances of the offending
As set out above, the objective gravity of offending of this type has been consistently acknowledged by the courts and legislature. While the sentencing judge noted that ‘there is no walking away from the fact of the seriousness of this crime’,[39] the Directors submit that the imposition of a CCO failed adequately to reflect the objective seriousness and circumstances of the offending.
[39]Reasons [27].
The Directors rely heavily upon the emphasis given by the sentencing judge to the categorisation of the child pornography material as very largely level 1. The Directors submit that the quantity and lower classification of the child pornography material assumed too much importance in the instinctive synthesis.
The fact that a large proportion of the material was category 1, was viewed as significant by his Honour. Attention was drawn to the number of times his Honour referred to this classification during his reasons:
All of the material from level 2 through to 5 were obnoxious. However the point has to be made that such was only 5 per cent.[40] …
There was, as I said, 95 per cent in the first category.[41] …
We come then to the second category, and admittedly this was less than two per cent of what you held.[42] …
The third category is, again, a very low proportion of what you had …[43]
The fourth category involving penetrative sexual activity by adults with children, obviously such is an indication of the seriousness of such material …[44]
The fifth category involves, again, a very low number, indeed only 0.2 per cent …[45]
This is not in any way to lessen the seriousness, but in assessing the gravity it is important to understand that 95 percent of this material was, as I have indicated, in the first level, albeit still offensive …[46]
[40]Ibid [19].
[41]Ibid [14].
[42]Ibid [15].
[43]Ibid [16].
[44]Ibid [16].
[45]Ibid [17].
[46]Ibid [57].
The respondent points to these passages as supporting the proposition that his Honour, in referring to the various percentages of types of material, gave due consideration to the moral depravity of such material.
The Directors submit that here, where the images classified as category 1 included close up images of children exposing their genitals, that the offending was properly classified as falling at the higher end of category 1 offending.
The Directors further submit that the percentage of category 1 images was regarded as significant by his Honour. They contend that to consider the high percentage of category 1 images could create a factual falsehood. Thus it was said, that if you halved the number of images in category 1, applying his Honour’s approach,’ that would make it a worse case and that would be wrong’.
The Directors submit that undue emphasis was placed on the high percentage of material in this particular category, without adequate analysis of the nature of the material. It also resulted in a failure to give due recognition to the wide range of activity depicted within that category and other factors which bear upon the sentencing exercise.
The respondent acknowledges that the type of material and degree of depravity must be the primary focus in determining an appropriate sentence in child pornography offending. He submits however, that his Honour gave due consideration to all of the relevant circumstances, and gave proper weight to the countervailing factors relevant to sentencing.
Failed to accumulate and/or to impose any separate penalty for the Commonwealth offences
The Directors submit the sentencing judge erred in failing to order cumulation and/or to impose any separate penalty for the Commonwealth offending.
The Directors submit that the failure to order cumulation did not sufficiently address the two separate instances of access offending, and failed to reflect the distinct nature of the access and possess offences, which involved separate acts of serious criminality. Further, the Directors submit that it was not open to the sentencing judge to impose the same penalty on each charge, despite the State charge carrying a maximum penalty of 5 years, and the Commonwealth of 15 years. The Directors also point to the fact that the principles espoused in Boulton v The Queen,[47] regarding CCOs, have no applicability to Commonwealth sentencing. As this Court recently said in Atanackovic v The Queen,[48] the Victorian provisions which regulate CCOs cannot be ‘picked up and made applicable to sentencing for federal offences’.[49]
[47][2014] VSCA 342.
[48](2015) 326 ALR 159.
[49]Ibid 184 [82].
Conversely, the respondent submits that there is a great deal of overlap between the State and Commonwealth offences, given that in order to ‘access’ child pornography material (an offence under the Criminal Code), one must necessarily be in possession of such material (an offence under the Crimes Act). The respondent submits that where such overlap exists, that sentencing courts must be careful not to inflict ‘double’ punishment. A CCO was an appropriate sentencing option employed to cover both offences.
Failed to give sufficient weight to the principles of general deterrence, specific deterrence, denunciation and punishment
Failed to have appropriate regard to the principles espoused by the majority in DPP (Cth) v Zarb [2014] VSCA 347
These two particulars may be dealt with together. The Directors submit that whilst his Honour acknowledged the applicability of the principles of general deterrence, specific deterrence, denunciation and punishment,[50] that these principles, particularly general deterrence, were not sufficiently addressed by the imposition of a CCO.
[50]Reasons [40]–[41], [54].
The respondent submits that his Honour adopted a measured and careful consideration of all of the circumstances of the case, weighing the competing personal circumstances of the respondent against the important sentencing factors of general deterrence, specific deterrence, punishment and denunciation. The respondent points to the following passage from his Honour’s reasons:
The steps taken and rehabilitation effected since these crimes were committed are very significant, it is for that reason that I have taken the time to refer to the reports of the psychologists. Of course I accept totally in matters such as this rehabilitation is always a factor, but only one of the factors which has to be balanced against the very important factors to which I have referred a set out in the authorities, being general deterrence, specific deterrence, punishment and denunciation.[51]
[51]Ibid [54].
In his reasons for sentence, the sentencing judge did not articulate the way in which a CCO would serve the purpose of general deterrence. Such an omission, the Directors submit, was significant, given the well-established primacy to be accorded to general deterrence for this type of offending. The Directors rely on the statements made by this Court in Zarb, where it was said that
[t]he failure to sentence the Respondent to any term of imprisonment for these offences raises the inference that general deterrence was given insufficient weight …[52]
[52]Zarb [2014] VSCA 347 [37].
The Directors submit that there is nothing exceptional about the respondent’s personal circumstances which would warrant a significant departure from the importance that must be afforded to general deterrence.
The Directors further rely upon the proposition espoused by the majority in Zarb that an immediate term of imprisonment for offending of this nature is required, unless exceptional circumstances exist. The majority in Zarb,[53] relied upon the observations of Coghlan JA in Guest,[54] where his Honour said:
I would add that in cases of this kind, involving both the possession and transmission of significant quantities of child pornography, including some at high levels, any non-custodial sentence would not normally be appropriate. A non-custodial disposition should only be contemplated in circumstances that can properly be said to be exceptional.[55]
Failed to give sufficient weight to the need for consistency in sentencing standards
[53]Ibid [21]
[54][2014] VSCA 29.
[55]Ibid [48].
The Directors submit that by allowing general deterrence to be ‘swamped’ by other considerations which were not sufficient to displace the requirement for immediate imprisonment, the sentencing judge imposed a sentence which was ‘out of step’ with current sentencing standards requiring the imposition of a sentence of imprisonment with an immediate custodial component.
Undue weight to the respondent’s plea of guilty
His Honour, in making his s 6AAA statement, said that had the respondent not pleaded guilty, ‘there would have been no option but you would be going to gaol.’[56] The Directors submit that in fixing a CCO instead of a term of imprisonment, his Honour gave undue weight to the respondent’s plea of guilty.
[56]Reasons [74].
It is well established that the statement provided for in the 6AAA statement does not form part of the sentence imposed for the purposes of an appeal.[57] But the 6AAA statement may be used in an argument as to manifest excess to demonstrate that too much weight was given to a particular sentencing consideration — that is, the plea of guilty. As this Court said in R v Burke:[58]
A complaint about the sentence discount … identified in the 6AAA statement is a complaint about the weight attributed to one particular sentencing consideration. As with any argument about weight, the question for the appeal court is whether, taking into account all the relevant sentencing considerations, the sentence imposed was within range.[59]
[57]R v Burke (2009) VR 471; Scerri v The Queen [2010] VSCA 287; Mokbel v The Queen [2011] VSCA 34.
[58](2009) 21 VR 471.
[59]Ibid 477 [31]–[32].
The Directors also submit that the sentencing judge ‘elevated’ the value of the respondent’s plea of guilty by referring to the fact that
[i]t is also appropriate to comprehend that as a result of such plea Mr Garside is to be subject to sexual reporting for the next 15 years.[60]
[60]Reasons [57].
The Directors submit that in circumstances where there was no evidence that the reporting obligations would operate with any unusual severity on the respondent, such a statement was irrelevant. They referred to the observations of Callaway JA in Director of Public Prosecutions v Ellis,[61] where his Honour said:
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.[62]
[61](2005) 11 VR 287.
[62]Ibid 293–4 [16].
Undue weight to the respondent’s prior good character
Finally, the Directors submit that the judge’s repeated reference to the respondent’s age and absence of prior convictions as circumstances warranting mercy do not reflect the prevailing position that good character carries less weight in sentencing for child pornography offending.[63] That the offender, by his own admission, had accessed child pornography over a longer period than the eight month period stipulated on the indictment is also said to diminish the relevance of evidence of good character.
[63]Mouscas v The Queen [2008] NSWCCA 181 [37]; Gent (2005) 162 A Crim R 29, 29–43; D’Alessandro (2010) 26 VR 477, 483–4 [21]; Heathcote(a pseudonym) [2014] VSCA 37 [35].
The respondent submits that his mature age and lack of prior criminal history were central to the value of a good character submission, and that in giving effect to these factors, his Honour was according proper weight to the principle enunciated in Director of Public Prosecutions v Tokova.[64]In his Honour’s reasons for sentence, he said:
[i]n our system of justice, and certainly in my court, a person of that age, with a clean background, is entitled to come to the Court seeking mercy.[65]
[64][2006] VSCA 156.
[65]Reasons [51].
The Directors further submit that the sentencing judge also gave inappropriate weight to the fact that the respondent’s offending did not involve
… other aspects that are often associated with this type of behaviour, in the sense that there is no exchanging of such files with other persons or making them available on the internet or profit making.[66]
[66]Ibid [28].
Conclusions
The Directors had submitted that by preferring the minority judgment of Priest JA in Zarb, and the judgment of Nettle JA (as he then was) in Smith, the sentencing judge failed to apply the principles governing offending of this type as set out by the majority in Zarb — in particular, the inadequacy of a sentence with no requirement to serve an immediate term of imprisonment for offending of this nature.
Neave and Kyrou JJA relevantly said in Zarb:
The Crown also submitted that although general deterrence was ‘a paramount sentencing consideration’ in offences involving child pornography, her Honour had not given adequate weight to this principle. If the viewing or transmitting of child pornography images of this kind by a mature man did not attract a custodial sentence, it was difficult to envisage a situation where such offences, if not committed for profit, would ever attract a gaol term. Counsel argued that the prevalence of this type of offending had increased, and that this factor, combined with the appalling effect of these offences on child victims, made it particularly important to deter other members of the community from committing child pornography offences. The Crown relied on Coghlan JA’s observation in DPP (Cth) v Guest that a non-custodial disposition could only be appropriate for child pornography offences in exceptional circumstances. Counsel also relied on observations emphasising the centrality of general deterrence made by Osborn JA in Edwards v R, and by Tate JA in Heathcote (a pseudonym) v R.[67]
[67]Zarb [2014] VSCA 347 [21] (citations omitted).
Priest JA in Zarb however took a different view:
With respect, I do not think that the view expressed by Coghlan JA can be accepted without qualification. It is not correct, in my view, to posit that a non-custodial disposition could only be contemplated in circumstances that are ‘exceptional’. There is no statutory warrant for that view, let alone an inflexible legislative command that an offender must be imprisoned for this kind of offending unless exceptional circumstances exist. In my opinion, the better view is as expressed by Nettle JA in Smith. Thus, although a sentence of imprisonment might ordinarily be warranted, cases which do not require actual custody are not precluded. Every case must depend on its own particular facts. Thus, although time in actual custody might normally be contemplated, that position might yield, for example, to significant matters in mitigation.[68]
[68]Ibid [71] (citations omitted).
In Smith,[69] Nettle JA said it was ‘tolerably clear’,[70] that the sentencing principles applicable to the sentencing of offenders for offences of possessing child pornography, included the fact that
… a sentence of immediate imprisonment would ordinarily be warranted, but it is recognised that there are cases where a sentence which does not involve a period of actual custody is not precluded.[71]
[69][2010] VSCA 215.
[70]Ibid [23].
[71]Ibid.
Nettle JA, after finding that Smith’s offending was towards the ‘lower end of the range’ of moral culpability,[72] found that
in the particular circumstances of this case, I am not persuaded that general deterrence demanded an immediate custodial sentence.[73]
[72]Ibid [26].
[73]Ibid [27].
His Honour then went on to discuss when an immediate term of imprisonment may be appropriate in cases such as this.
I do not overlook that specific deterrence is also an important consideration. In many cases of this kind, it would be enough in itself to demand some time in prison. But I am not convinced that the judge was wrong not to think it so on this occasion. As his Honour observed, the respondent was genuinely remorseful and had genuine prospects of rehabilitation. They included the chance that, with time and appropriate care, he could be restored to a proper sexual orientation. Contrastingly, according to the uncontradicted expert evidence, his low chance of recidivism was likely to be exacerbated by any time in gaol. It seems to me, therefore, that the judge strove to fashion a sentence calculated to maximise the possibility of rehabilitation, and so, in the end, to minimise the risks of re-offending and thus maximise community protection.
So to say does not mean that an immediate custodial sentence would have been exceptionable. To the contrary, recent decisions of this court and of comparable courts in other states suggest that the respondent was very fortunate indeed to be spared that disposition. But, for the reasons I have given, I am not persuaded that the course which his Honour chose was beyond the range of sound discretion.[74]
[74]Ibid [28]–[29]
Nettle JA’s decision in Smith was relied on by Mandie JA, with whom Buchanan JA and Ross AJA agreed, in Director of Public Prosecutions (Cth) v Ison.[75] In that case, Mandie JA said
Accepting that anything less than an immediate custodial sentence may be exceptional, it is also clear that a non-custodial sentence may sometimes be within the range of appropriate dispositions. A comparison of the decisions of this Court in D’Alessandro (Redlich and Harper JJA and Williams AJA) and in Smith (Nettle, Harper and Hansen JJA) well illustrates that proposition.
In the present case, I consider that, far from being manifestly inadequate, and far from simply being within the ‘appropriate range’, the sentence was correctly fashioned to serve the ends of the legislation in the light of the particular circumstances of the respondent. I further agree with and adopt what was said by the learned sentencing judge. In my opinion, the course adopted by her Honour satisfied the considerations of denunciation, general deterrence and specific deterrence.[76]
[75][2010] VSCA 286 (‘Ison’).
[76]Ibid [28]–[29] (citations omitted).
In D’Alessandro,[77] Harper JA said:
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.[78]
[77](2010) 26 VR 477.
[78]Ibid 484 [24].
During the course of the hearing the Director accepted that courts must be careful not to impose a standard to a sentencing task that is not prescribed by the statute. They conceded that the use of the term ‘exceptional circumstances’ in Guest and thence in Zarb was ‘problematic.’ The Directors thereafter no longer pressed the argument that there must be ‘exceptional’ circumstances before a non custodial disposition will be appropriate.
What is clear from all of the authorities is that access to child pornography is regarded as very serious morally depraved conduct that is harmful to children. The authorities speak with one voice that a term of immediate imprisonment will ordinarily be expected for such offending. That accords with the language of Nettle JA, as he then was, in Smith, and in the dissenting reasons of Priest JA and the joint reasons in Zarb. Despite proposition (a) in De Leeuw at [25] above, no broader principle need be laid down as each case must be decided according to its own circumstances.
The respondent could call in aid a number of mitigating factors, including his lack of prior offending, age, familial support and remorse and prospects for rehabilitation. These factors were relied on by the respondent before the sentencing judge to justify ‘mercy.’ But the authorities to which we have referred demonstrate that such factors must be given less weight than they ordinarily would in sentencing for possessing and accessing child pornography as such offenders generally have similar backgrounds and are of prior good character.
It is necessary to consider whether a CCO was a proportionate response to the circumstances of this particular offending which spanned a considerable period, during which a large amount of offending material was accessed and then stored.
The offences of accessing and possessing child pornography are separate and distinct offences although the one offence was linked to and substantially overlapped with the other. The approach to cumulation between Commonwealth and State offence was discussed by the New South Wales Court of Criminal Appeal in Porte:
…. The question whether sentences should be concurrent or, to some extent, cumulative involves consideration whether a sentence for one offence can comprehend and reflect the criminality for the other offence. If it can, the sentences ought be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality for the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentences will fail to reflect the total criminality for the two offences: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at 47 [27].
Determination of whether sentences for the Commonwealth and State child pornography offences in this case ought be concurrent or partly accumulated involves a number of considerations. The offences are directed at different vices (see [55]–[56]). The offences overlap, but are not identical. In this case, there are features of the Respondent’s offences, as identified by the Crown (at [92] above), which point to the need for some measure of accumulation to reflect the differing criminality contained in the two offences.[79]
[79]Porte [2015] NSWCCA 174 [99]–[100].
The Commonwealth offence is designed to address the use of the internet as a medium through which to carry out such offending on a potentially large scale. It carries with it a greater maximum penalty than the State offence reflecting its relative seriousness. The very recent decision in Watson,[80] illustrates that, one would ordinarily expect cumulation, and depending upon the circumstances, substantial cumulation, of the Commonwealth offence or offences.
[80][2016] VSCA 73.
The fact that the material accessed by the respondent was largely level 1 material did not detract from the gravity of the offending. The caution which must be exercised when assessing the objective gravity of offending by reference to the categorisation of material in child pornography cases has been stated by appellate courts in a number of cases. In Zarb,[81] it was recognised in the joint reasons that:
[a]lthough level 1 covers images which are not as depraved and abusive as the images allocated to higher levels, some of the images we viewed involved dreadful examples of the abuse of child victims, who were arranged in sexual poses displaying their genitalia.[82]
[81][2014] VSCA 347.
[82]Ibid [30].
Similarly in Porte,[83] before citing the above passage from Zarb, Johnson J said:
The classification of material in accordance with the CETS scale assists the process of assessment of the objective seriousness of an offence. Although Categories 1 to 5 on the CETS scale involve escalating gravity of the conduct depicted in the images, it should not be assumed that Category 1 material is mild in content. Despite being the lowest classification level, Category 1 material itself is capable of possessing significant gravity.[84]
[83][2015] NSWCCA 174.
[84]Ibid [77].
Similar sentiments were echoed in De Leeuw, where the Court observed that the fact that the images fell only within Category 1 and 2, was of ‘limited assistance to the Respondent.’[85] This has again been emphasised in the joint Directors’ appeal of Watson.[86]
[85]De Leeuw [2015] NSWCCA 183 [140].
[86][2016] VSCA 73.
In Heathcote,[87] Tate JA, with whom Sifris AJA agreed, said with respect to the objective seriousness of the offences,
that it is important to consider the actual content of the images and not merely their classification, and although the bulk of the images were classified as Level 1 the images were explicit and were at the higher end of that Level. …
The volume of images is not the single determinant of an appropriate sentence. Rather, it is necessary to consider the culpability of the applicant in the context of the offending as a whole.[88]
[87][2014] VSCA 37.
[88]Ibid [44]–[45].
Watson illustrates the dangers if too much emphasis is given to the categorisation of material.[89] An assessment of the objective gravity of offending by reference to the categorisation of images and videos may lead to salient subjective features of the offending being given insufficient attention. There will be varying degrees of seriousness of the images within each particular category. The increasing risk that the international child pornography industry poses, that the possession of child pornography material creates a market for the continued corruption and exploitation of children and that those who possess such material, whether for profit or not, are more than mere passive recipients of material but are active participants in the market,[90] must remain at the forefront of the sentencing task in order that general deterrence, in particular, is given its necessary weight. It is necessary to ensure that the absence of material in higher levels of classification, does not unconsciously result in a minimisation of the objective gravity of possession of lower level categories of material.
[89][2016] VSCA 73.
[90]R v Coffey (2003) 6 VR 543, 522; R v Cook; Ex Parte DPP (Cth) [2004] QCA 469 [21]; R v Jongsma (2004) 150 A Crim R 386, 395 [14]; Heathcote (a pseudonym) v The Queen [2014] VSCA 35 [40].
The respondent’s offending here was objectively serious, involving as it did thousands of images, some including infant children and most of it involving close up images of children exposing their genitals. The offending specified in the indictment continued over a protracted period and as the respondent admitted to investigators, the offending was not an isolated period of offending.
The failure to impose an immediate and substantial period of imprisonment was not in conformity with the prevailing sentencing practice. Courts throughout Australia have emphasised the need for substantial penalties with general deterrence and denunciation being paramount considerations.[91] When regard is had to the nature and circumstances of the offending, a CCO was not, in our opinion, a disposition that was reasonably open.
[91]Porte [2015] NSWCCA 174 [57]–[58].
For completeness, we should address the further submission of the Directors that even if the circumstances of particular offending had permitted the imposition of a CCO, the same CCO could not be used to cover both charges. Were it relevant to the outcome of the appeal, that submission could not be sustained. If a CCO was an appropriate form of sentence for each offence charged and the totality of the offending, there is no reason in principle why the same CCO could not be ordered to cover both charges. The very nature of CCO order is that a CCO of the same duration and carrying the same conditions may be made with respect to a number of offences which individually are of different objective gravity. Such differences would not necessarily require that the nature of the orders pronounced on each charge be different. None of this is to say that the imposition of a CCO for offences such as the present would ordinarily be an appropriate disposition.
Residual Discretion
The principles surrounding the exercise of the residual discretion are well versed. In Karazisis,[92] the Court (Ashley, Redlich and Weinberg JJA) set out some of the various circumstances in which it may not be appropriate to allow a Crown appeal even where the sentence is manifestly inadequate:
Circumstances may have changed to such a degree as to warrant leaving even a sentence that may be viewed as manifestly inadequate to stand. When an offender is given a non-custodial sentence and has complied with its terms for a significant period, there may be powerful reasons why that sentence should not be disturbed. A similar point can be made in situations where an offender, who received a short custodial sentence, has served the entirety of that sentence and been released by the time the Crown appeal is heard.[93]
[92](2010) 31 VR 634.
[93]Ibid 658 [107].
The Directors submitted that the residual discretion should not be exercised to disallow the appeal. The Directors submitted, drawing upon the reasoning in De Leeuw,[94] that in considering whether to exercise the discretion, it must be kept in mind that the Commonwealth and State Parliaments have made the expectation clear, as have various intermediate Courts of Appeal, that substantial penalties will be imposed in cases of such serious offending.[95] They submitted there was no delay in proceeding with the Crown appeals and there were no features of the conduct of the proceedings in the Country Court which operated against the Crown on this issue. The prosecution had submitted on the plea that a sentence of immediate imprisonment was the only appropriate sentencing option in this case.
[94][2015] NSWCCA 183.
[95]See De Leeuw [2015] NSWCCA 183; Porte [2015] NSWCCA 174 [57]–[58].
The Director acknowledged however that there were some significant differences between the offending in De Leeuw, and the present offending — including a significantly larger volume of images over a longer period of time.
The sentencing judge noted that the respondent’s prospects of rehabilitation were very good.[96] The respondent’s risk of re-offending was thought to be low. During oral submissions on the appeal, counsel for the respondent highlighted that the respondent has been on his CCO for over 6 months (since September 2015), and has completed nearly half of his required 300 hours of voluntary work. She further pointed to the fact that the respondent has made significant steps towards his rehabilitation, including being found suitable for sex offence programs, which, we were informed, the respondent would be able to commence shortly.
[96]Reasons [53]–[54].
The respondent, has thus far complied positively with the conditions of his CCO which is in both the respondent’s interests and the interests of the community at large. He has met the expectations of the sentencing judge, and is continuing on his rehabilitative path through which he is gaining meaningful insight into the nature of his offending.
Counsel for the respondent confirmed that he had continued with his treatment with his psychologist. She further submitted that there had been recent suicide attempts for which he was hospitalised. That was addressed in a further psychologist’s report which counsel sought to tender in which it was said that prior to being advised of the Directors’ appeal the respondent was adjusting appropriately to his situation but since then his mental health had deteriorated with episodes of depression, increased alcohol intake and suicidal ideation. The Directors objected to the admissibility of the report on a variety of grounds. Citing Lam v The Queen,[97] and Dasreef Pty Ltd v Hawchar,[98] it was submitted that the opinion of the treating psychologist went beyond his expertise. Further, it was submitted that the report assumed facts which had not been proven contrary to Makita (Australia) Pty Ltd v Sprowles,[99] in asserting a causal connection between his depression and the appeal.
[97][2015] NSWCCA 143.
[98][2011] 243 CLR 588.
[99][2001] 52 NSWLR 705.
The argument was not further explored in the appeal, the assumption apparently being made by the parties, that the Court might receive the report for the purpose of re-sentencing and that it would then become a question of the weight to be attached to the report. We find it unnecessary to rule upon its admissibility for the purpose of determining whether to exercise the residual discretion. We would
however take into account the oral submissions of the respondent’s counsel which were not put in issue, that the respondent has successfully continued with his treatment although in the past month he has become more anxious and has twice attempted suicide.
The Directors have not negated any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised.[100] In our opinion the reasons for concluding that the sentencing disposition was not appropriate will serve to identify the relevant principles for the governance and guidance of sentencing courts.[101] The public interest will not be best served by removing the respondent from civil society and now imposing on him a term of imprisonment that will potentially disrupt his current rehabilitation which has been underway for a period in excess of seven months.
[100]CMB v Attorney-General (NSW) (2015) 89 ALJR 407 (‘CMB’);DPP v Karazisis (2010) 31 VR 634; DPP v Zhuang [2015] VSCA 96 [49].
[101]Green v R; Quinn v R (2011) 244 CLR 462, 465–466 [1]–[2].
As we are not persuaded that the residual discretion should be exercised adversely to the respondent, we would dismiss the appeal.
PRIEST JA:
Introduction
Redlich and Beach JJA — whose reasons for judgment I have had the considerable advantage of reading in draft — would dismiss the appeals by the Commonwealth and Victorian Directors of Public Prosecutions. I agree with their Honours’ proposed disposition, but differ in my reasoning. In my view, the sentence under challenge is not manifestly inadequate. For that reason, the appeals must be dismissed.
Exceptional circumstances and non-custodial sentences
In this case — as was the case in Zarb[102] — the Director[103] paid a deal of attention to the legislative increases in penalty for child pornography offences. He also placed a deal of reliance on De Leeuw,[104] in which Johnson J (with whom Ward JA and Garling J agreed), set out a number of propositions bearing on sentencing for child pornography offences, many of which were drawn from previous authorities.[105] Ultimately, the Director submitted that only a sentence involving immediate imprisonment was appropriate.
[102]DPP (Cth) v Zarb [2014] VSCA 347 (‘Zarb’).
[103]In the present case, the Commonwealth Director of Public Prosecutions had carriage of the appeals on behalf of both appellants.
[104]R v De Leeuw [2015] NSWCCA 183 (‘De Leeuw’).
[105]Ibid [72].
Notwithstanding the force of the Director’s submissions, however, I adhere to what I said in Zarb;[106] and in particular:[107]
… It is not correct, in my view, to posit that a non-custodial disposition could only be contemplated in circumstances that are ‘exceptional’. There is no statutory warrant for that view, let alone an inflexible legislative command that an offender must be imprisoned for this kind of offending unless exceptional circumstances exist. In my opinion, the better view is as expressed by Nettle JA in Smith.[108] Thus, although a sentence of imprisonment might ordinarily be warranted, cases which do not require actual custody are not precluded. Every case must depend on its own particular facts. Thus, although time in actual custody might normally be contemplated, that position might yield, for example, to significant matters in mitigation.
The Director pointed out that since D’Alessandro[[109]] and Smith were decided, however, the maximum penalty has since increased from 10 years’ imprisonment to 15 years’ imprisonment.[110] He relied upon Markarian.[111] That the maximum penalty has been increased is undeniable. But the fact of that increase, while signalling Parliament’s view of the seriousness of the offence, does not carry with it the concomitant that a non-custodial sentence is no longer open for this kind of offending. Presumably, had the Legislature intended that a non-custodial sentence not be open, it would have said so.
[106]Zarb, [68]–[72].
[107]Ibid [71]–[72].
[108][DPP v Smith [2010] VSCA 215, [23] (‘Smith’)].
[109][DPP (Cth) v D’Alessandro (2010) 26 VR 477 (Redlich and Harper JJA, and Williams AJA).]
[110]The increase was as a result of the Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 (Cth), with effect from 15 April 2010.
[111]Markarian v R (2005) 228 CLR 357 (‘Markarian’).
As is obvious, I do not agree with the first proposition in De Leeuw — that is, that unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment ‘is ordinarily warranted’[112] — and, in light of Smith, do not regard myself bound to follow it.
[112]De Leeuw, [72].
The relevance of good character
Moreover, I have difficulty accepting to the fourth proposition in De Leeuw[113] — less or limited weight is given to an offender’s prior good character — even though it is a proposition which has been referred to repeatedly with apparent approval in authorities concerned with child pornography.
[113]Ibid.
In this country, the proposition can, I think, be traced to the judgment of Johnson J in Gent,[114] a sentence appeal concerned with a charge of importing child pornography under s 233BAB(5) of the Customs Act 1901 (Cth). One of the grounds of appeal complained that the sentencing judge erred in giving limited weight to the applicant’s prior good character. Johnson J (with whom McClellan CJ at CL and Adams J agreed), acknowledged that the prior good character of an offender is relevant to sentence.[115] And with respect to federal offences, his Honour observed that s 16A(2)(m) of the Crimes Act 1914 (Cth) requires a court to take into account on sentence, amongst other things, the character and antecedents of the offender.[116]
[114]R v Gent (2005) 162 A Crim R 29 (‘Gent’).
[115]Ibid 40 [48].
[116]Citing Weininger v The Queen (2003) 212 CLR 629, 638–40 [27]–[33].
After reviewing a number of authorities dealing with the relevance of good character in sentencing,[117] however, Johnson J concluded that there are certain offences — including offences involving child sexual assault, drug couriers, culpable driving and ‘white collar’ crimes — where good character is given less weight than in other cases. His Honour observed that the weight that will be given to evidence of good character on sentence ‘depends, to an extent, on the character of the offence committed’;[118] and that the ‘rationale for extending less weight to prior good character may vary depending upon the class of offence’.[119] Further, Johnson J cited the decision of the Court of Appeal (UK) in Oliver,[120] in which the Court agreed to adopt published advice by way of sentencing guidelines promulgated by the Sentencing Advisory Panel. Rose LJ, giving the judgment of the Court,[121] touched on the question of the weight to be given to good character in sentencing for this class of offence, and agreed that ‘some, but not much, weight should be attached to good character’.[122]
[117]Including Weininger v The Queen (2003) 212 CLR 629; Ryan v The Queen (2001) 206 CLR 267; R v Levi (unreported, Court of Criminal Appeal, NSW, 15 May 1997); R v Smith (1982) 7 A Crim R 437; R v Kennedy [2000] NSWCCA 527; R v Leroy [1984] 2 NSWLR 441; R v MacIntyre (1988) 38 A Crim R 135; Re Attorney-General’s Application (No 3 of 2002) (NSW) (2004) 61 NSWLR 305; R v El-Rashid (unreported, Court of Criminal Appeal, NSW, 7 April 1995); R v Rivkin (2004) 59 NSWLR 284; R v Adler (2005) 53 ACSR 471; R v Williams (2005) 152 A Crim R 548; R v Hall (No 2) [2005] NSWSC 890.
[118]Gent, 41 [51].
[119]Ibid 42 [55].
[120]R v Oliver [2003] 1 Cr App R 463.
[121]Rose LJ, Gibbs and Davis JJ.
[122]Ibid 470 [21]. Among other things, the Court also provided guidelines for when a fine, a conditional discharge, a community sentence and sentences of imprisonment of various durations, were appropriate: ibid 468–9 [14]–[19].
As I understand his Honour’s reasoning thereafter, Johnson J was of the view that since child pornography importation offences are committed frequently by persons of otherwise good character; that general deterrence has been referred to as the ‘paramount consideration’ on sentence for this class of offence; and that ‘the offence is, in a sense, committed in secret’; then there ‘is a foundation for the approach that less weight should be attached to evidence of prior good character on sentence for offences of importing child pornography’.[123]
[123]Gent, 44 [64].
Despite the views expressed in Gent (and the authorities which have cited it with apparent approval), however, in my opinion the better view as to the relevance of good character to be applied in cases of child pornography is as expressed by McHugh J in Ryan,[124] and by this Court in SD.[125] In Ryan, a case involving multiple sexual assaults on young boys over a long period, McHugh J said:[126]
In considering a prisoner’s good character when sentencing, the court must distinguish two logically distinct stages. First, it must determine whether the prisoner is of otherwise good character. In making this assessment, the sentencing judge must not consider the offences for which the prisoner is being sentenced. Secondly, if a prisoner is of otherwise good character, the sentencing judge must take that fact into account. However, the weight that must be given to the prisoner’s otherwise good character will vary according to all of the circumstances of the case.
[124]Ryan v The Queen (2001) 206 CLR 267 (‘Ryan’).
[125]SD v R (2013) 39 VR 487 (‘SD’).
[126]Ryan, 278–9 [36].
And in SD, a case of sexual offending against a young girl, the Court (Ashley Redlich and Priest JJA) observed:[127]
As is made clear in Ryan, a sentencing judge is always bound to consider the ‘otherwise good character’ of the person to be sentenced. In so doing the judge does not take into account the offences for which he or she is being sentenced. If a person is of good character that fact must always be taken into account. However, the weight to be given to a person’s good character will vary according to the particular circumstances of the case. …
[127]SD, 494 [30].
Hence, in my view, the judge was entitled to give the weight that he did to the fact that the respondent had attained the age of 56 years with a ‘clean background’. So long as a sentencing judge always bears steadily in mind that general deterrence must be seen as a prominent factor in the exercise of the sentencing discretion for child pornography offences, a judge is entitled to give such weight to good character as is appropriate in all of the circumstances of the particular case.
Concurrency or cumulation
I should make specific reference to the appellants’ contention that the judge erred in failing to cumulate, or to impose any separate sentence, for the Commonwealth offence.
In my view, the judge was entitled to structure the sentence as he did. Whilst it might be acknowledged that accessing and possessing child pornography are distinct offences, the respondent could only possess the material once having accessed it. To that extent the distinct aspects of access and possession might be seen as a continuum.
With respect to the issue of cumulation, in the appellants’ written case, it was submitted:
As was held in James v R,[128] the offences of accessing and possessing child pornography are separate and distinct offences and it is entirely appropriate to impose some level of accumulation of sentences imposed.
[128][2009] NSWCCA 62.
In James[129] — which was another case of accessing and possessing child pornography — it was made clear, however, that the issue of concurrency and cumulation was a matter for the sentencing judge’s discretion. In that case, it appears that there was not complete temporal overlap between the relevant Commonwealth and State offences. Blanch J (with whom Beazley JA and Howie J agreed) said:[130]
The fourth ground argued is that the sentencing judge ‘erred in failing to make the sentences wholly concurrent’. That issue was a matter for the discretion of the sentencing judge and it should be seen in the context that the Commonwealth offence occurred between 2005 and 2007 and in respect of the State offence, the applicant admitted he had been collating the material for about five years. These offences are different offences and in view of the applicant’s admission, it was entirely appropriate for there to be some accumulation in respect of the State charge. I would also reject this ground.
[129]James v R [2009] NSWCCA 62.
[130]Ibid [16] (emphasis added).
The sentence is not manifestly inadequate
In making the foregoing observations, I confess that I may have been distracted from addressing the central issue — whether the sentence imposed is manifestly inadequate — by the ‘particulars’ subjoined to the ground of appeal (which smack of specific error), and the separate treatment given to the particulars in the appellants’ submissions. Thus, one particular asserted that the sentence ‘failed to have appropriate regard to the principles espoused by the majority in CDPP v Zarb’; another that the sentence ‘gave undue weight to … the Respondent’s lack of prior convictions and prior good character’; and another still that the sentence ‘failed to accumulate and/or to impose any separate penalty for the Commonwealth offences (sic.)’. But as I said in Watson:[131]
… Manifest inadequacy is, however, a conclusion that does not depend on the attribution of specific error.[132] That being so, in my view it is generally unproductive to endeavour to identify or to isolate a factor (or factors) which might have led a sentencing court to impose an inadequate sentence. Supposed ‘particulars’ can do no more than point to those features which should have been prominent in the exercise of the sentencing discretion;[133] since it is only when all relevant factors are taken into account that it can be seen whether a sentence is, or is not, unreasonable or plainly unjust, and inadequacy is, or is not, plainly apparent.[134]
[131]DPP (Cth) and DPP v Watson [2016] VSCA 73 [121].
[132]Dinsdale v R (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J) (‘Dinsdale’).
[133]Cf Practice Direction No 2 of 2011 (First Revision) — Court of Appeal: Criminal Appeals, Section 4(2).
[134]Dinsdale, 325–6 [6].
There is no doubt that the respondent’s offending was serious. It is described by the majority, and I need not repeat its features. But, when due regard is paid to the mitigating features of this case (which again I need not repeat), in my view a community correction order of four years’ duration — including, as it does, a significantly punitive element of 300 hours community work — coupled with a fine of $5000, is within the range of sentences open to the primary judge in the proper exercise of the sentencing discretion. The sentence was sufficiently punitive to give adequate recognition to the need for general deterrence and denunciation, whilst recognising the respondent’s very positive prospects of rehabilitation.
Disposition
The sentencing judge’s reasons were careful and thorough, and, in my opinion, the sentence imposed was within the available range.
For these reasons, the appeals must be dismissed.
Residual discretion
In any event, in the exercise of the residual discretion, I would dismiss the appeals for the reasons advanced by the majority.
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