DPP (Cth) v Zarb
[2014] VSCA 347
•18 December 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0210
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| DARREN PAUL ZARB | Respondent |
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| JUDGES: | NEAVE, PRIEST and KYROU JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 21 November 2014 |
| DATE OF JUDGMENT: | 18 December 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 347 |
| JUDGMENT APPEALED FROM: | R v Zarb [2014] VCC 1517 |
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CRIMINAL LAW – Crown appeal against sentence – One charge of use of carriage service to access child pornography – Two charges of use of carriage service to transmit child pornography – Total effective sentence of 3 years and 3 months Community Correction Order – Whether sentence manifestly inadequate – Appeal allowed – Respondent
re-sentenced to 3 months imprisonment on charge 1 and Community Correction Order of 2 years for charges 2 and 3.
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| APPEARANCES: | Counsel | Solicitors |
| For the appellant | Mr R J Bromwich SC Ms K Breckweg | Commonwealth Director of Public Prosecutions |
| For the respondent | Mr C B Boyce SC | Taylor and Preston Lawyers |
NEAVE JA
KYROU JA:
This is a Crown appeal by the Commonwealth Director of Public Prosecutions (‘CDPP’) against the individual sentences and total effective sentence imposed on the respondent on 4 September 2014, following his guilty plea in the County Court, to the charges set out in the table below.
Charge on Indictment Offence Maximum Penalty Sentence Imposed 1 Use a carriage service to access child pornography - s 474.19(1) Criminal Code (Cth) 15 years imprisonment Community Correction Order (‘CCO’) of
2½ years to commence on 4 September 2014.2
Use a carriage service to transmit child pornography - s 474.19(1) Criminal Code (Cth)
15 years imprisonment
CCO of
3 years to commence on 4 December 20142
Use a carriage service to transmit child pornography - s 474.19(1) Criminal Code (Cth) 15 years imprisonment
Total Effective Sentence: 3 years and 3 months CCO Non-Parole Period: N/A Pre-sentence detention declared: Nil 6AAA Statement: 2½ years imprisonment with release upon entering into a s 20(1)(b) Crimes Act 1914 (Cth) recognisance after serving 1 year and 3 months imprisonment.
The CCO imposed on charge 1 required compliance with the following conditions:
(1) … 150 hours of unpaid community work over the period of the order;
(2) … treatment and rehabilitation by way of:
(a)assessment and treatment (including testing) for drug abuse as directed by the Secretary;
(b)assessment and treatment (including testing) for alcohol abuse as directed by the Secretary;
(c)mental health assessment and treatment for anxiety/depression/ Adjustment Disorder either with Dr Barth or as directed by the Secretary;
(d)programs to address [the] offending behaviour and, in particular, that [the offender] undergo a sex offender advice and treatment program either by continuing such program with Dr Barth or by undertaking the program run by the Office of Corrections;
(e)that [the offender] be supervised, monitored and managed as directed by the Secretary.’[1]
[1]R v Zarb [2014] VCC 1517, [58] (‘Reasons’).
The sentencing judge imposed a single CCO in respect of charges 2 and 3, subject to the same terms and conditions as those applicable to the CCO imposed on charge 1. Under s 41(1) of the Sentencing Act 1991 the conditions of a CCO are concurrent with the conditions imposed on any other CCO, unless the court otherwise directs. The judge directed that the conditions in the order relating to community work be cumulated, so that the respondent was required to perform a total of 300 hours of community work. The CCO imposed on charges 2 and 3 was to commence on 4 December 2014. Accordingly, the two CCOs had a combined duration of three years and three months.
Particulars of the ground of appeal
The particulars of the ground of manifest inadequacy specified by the CDPP were that:
[i]n imposing sentence, the learned sentencing judge failed to give sufficient weight to:
(i) the nature and circumstances of the offending;
(ii) the principles of general deterrence and denunciation;
(iii) specific deterrence;
(iv) the maximum penalty prescribed for the offences;
(v) the need to ensure the respondent was adequately punished for the offending;
(vi) the need to ensure consistency in sentencing standards;
and gave undue weight to factors in mitigation including:
(vii) the respondent's plea of guilty;
(viii) the nature and extent of rehabilitation treatment available inside gaol compared to outside gaol;
(ix) the respondent's prior good character, engagement in treatment and prospects of rehabilitation; and
(x) the respondent's personal circumstances.
The circumstances of the offending and the offender
The summary of the prosecution opening for the plea hearing describes the circumstances of the offending as follows. None of these facts were in dispute between the parties.
On 5 December 2013 an investigator from Queensland Police entered the adult website Motherless.com using the covert online identity 'singledadbrissy'. This occurred as part of a controlled operation aimed at gaining evidence of offences involving child abuse and child exploitation material.
After entering the website, the investigator engaged in a chat conversation with the offender, who was using the pseudonym of 'AussieMelbDad'. 'AussieMelbDad' has a profile which states that he is a '[h]ardcore porn lover and always looking for others into taboo, no limits chat.'
In the course of this chat, 'singledadbrissy' and the offender engaged in the following conversation:
Singledadbrissy: both ur kids girls?
AussieMelbDad: yeh
imagine fucking your daughter just to get back at your ex?
Singledadbrissy: are you into that kinda stuff?
AussieMelbDad: in fantasy.. pretty hot...
Singledadbrissy: 12 to 14 wud ne (sic) kinda hot im not really sure about 8 though
AussieMelbDad: love them smooth mate .. 8 is a hot age to be honest
wouldn't it be nice to push into her to get back at the ex?
Singledadbrissy: never thought about it kinda like em a bit older than her age
AussieMelbDad: mate seriously.. theyre amazing that age..
ya ex would freak, but fuck her..lol
SingleDadbrissy: sounds like you have had some experience???
AussieMelbDad: nah ... but I love the fantasy
The two then exchanged Yahoo! Messenger usernames to facilitate the exchange of child pornography images or videos via Yahoo! Messenger.
The Motherless.com chat ceased at 9.39pm, at which time a new chat session commenced in Yahoo! Messenger. During the course of this chat the offender sent three child pornography images to the covert police operative from his Yahoo! Messenger account. Categorised according to the Child Exploitation Tracking System (‘CETS’) Scale, one of the images was a Level 1 image and two were Level 4 images. After sending one of the Level 4 images, the offender commented ' ... very cute lil girl cunt..shes about 8 .. your daughters age.. niiiice.'
The images sent by the respondent are described as follows:
a.1 x Level 4 image depicting a young female child approximately 5-7 years of age and an adult male. The index finger of the adult male's left hand is inserted between the lips of the child's vagina.
b.1 x Level 4 image depicting a young female child approximately 5-7 years of age and an adult male. The adult male is inserting his erect penis into the vagina of the child.
c.1 x Level 1 image depicting a young female child approximately 11-13 years of age. The child is kneeling outdoors with her legs spread apart exposing her genitals to the camera.
At 10:07 pm the chat ceased and there was no further contact.
On 11 March 2014, the respondent was arrested at his residence and a laptop computer was seized under a search warrant. Forensic analysis of the laptop revealed 415 child pornography images and one child pornography video. The files were downloaded by the offender over a 15 month period between 10 December 2012 and 10 March 2014 and included the images sent to the Queensland Police operative on 5 December 2013.
The images on the respondent’s laptop were classified according to the Child Exploitation Tracking System (‘CETS’) Scale:
CETS category
No of images / movies
Level 1
Depictions of children with no sexual activity
310 images
Level 2
Solo masturbation by a child or sex acts between children
15 images
Level 3
Non-penetrative sexual activity between child(ren) and adult(s)
20 images
Level 4
Penetrative sexual activity between child(ren) and adult(s)
57 images
1 movie
Level 5
Sadism, bestiality, humiliation or child abuse
11 images
Level 6
Anime, cartoons, comics and drawings depicting child(ren) engaged in sexual poses or activity
2 images
Level 7
Non-illegal child material
64 images
Level 8
Adult pornography
627 images
8 movies
The forensic analysis of the laptop also revealed that the respondent had:
used the peer-to-peer file sharing program 'ARES' to search for and download child pornography. Some of the search terms included 'pthc' (pre-teen hardcore), 'boy anal' and 'babyj'. Files downloaded included those with the titles '9yr Laura sucks dads dick and anal fuck', 'private anal fuck 7yr map 1 2 3 2' and 'SDPA 8yr orgasm and anal fuck hard'.
He had also frequented and contributed to online 'chat' forums with titles including 'childslavesex', '#0!!!!!ChildRapeTortureBrutality', 'pedmoms', 'baby&toddlerlove' and 'Littleboysexchannel’.
Analysis of the respondent’s Yahoo! Messenger account revealed that on 7 August 2013 the respondent transmitted image files and a movie file to two separate recipients. The respondent sent the following to the first recipient:
3 x Level 4 images, each depicting a different young female child aged between 10 and 13 years, engaging in oral sex with an adult male.
2 x Level 1 images, each depicting a different young female child, aged between 8 and 13 years, posing in underwear (one with see-through underwear).
1 x Level 4 movie, depicting a young female child aged between 10 and 12 years, performing oral sex on an adult male until he ejaculates on her face.
The respondent sent the following to the second recipient:
4 x Level 4 images, each depicting a different young female child aged between 3 and 7 years, lying on her back being penetrated by the penis of an adult male.
The offender was aged 47 when he was sentenced and had no relevant prior convictions. He had a disrupted and distressing early childhood. His mother was an alcoholic and had a series of relationships with violent men, resulting in the respondent having five half siblings with different fathers. The respondent began drinking alcohol when he was only 10 years old. At about that age the respondent and one of his siblings were placed in the care of his older half-sister Carole and her husband, who brought him up along with their three children and eventually adopted him. His adoptive family were supportive and loving to him.
To his credit the respondent has had a relatively successful working and family life, despite his early difficulties. He has completed a Bachelors Degree and until he was arrested for these offences held a management position in industry. He married and had three daughters, each of whom provided character references about his excellent qualities as a loving father. The respondent had problems with alcohol abuse but stopped drinking alcohol with the assistance of Alcoholics Anonymous in 2004, though he used drugs during that period. Unfortunately he later resumed his heavy drinking. Prior to his arrest he was using about a gram of ‘ice’ a day and often used alcohol and cocaine at the same time. His family were aware of his drinking problems and supported him in his efforts to stop consuming alcohol, but did not know that he was using drugs.
After his arrest the respondent withdrew about $50,000 from his superannuation and used most of it to pay for a 90 day residential drug and alcohol treatment program at the Raymond Hader Clinic. He was assessed for sentencing purposes on 21 August 2014 by Mr Patrick Newton, a forensic psychologist and then sought counselling for his sexual offending from Dr Mathew Barth, also a psychologist, who gave evidence at the plea hearing.
Because the contents of reports provided by Mr Newton and Dr Barth’s oral evidence are described in her Honour’s reasons, it is unnecessary to set them out in detail. It is sufficient to refer to the passage in Mr Newton’s opinion which is relevant to the respondent’s risk of re-offending. Mr Newton said:
Mr Zarb expressed a clear orientation towards sexual interactions with adult women. He was adamant that he had never participated in any form of actual (i.e. ‘off-line’) sexual contact with under-age individuals.
Such comments notwithstanding, the offending committed by Mr Zarb clearly raises concerns about his sexual adjustment. Specifically, the deviant nature of material he accessed together with the extended duration of his involvement with it and the progression of his behaviour to include extensive engagement with others via ‘chat-rooms’ and other online venues all point to the presence of wide-ranging, diverse and entrenched deviant sexual cognitions. These were integrated with deviant arousal patterns and intensified by the broader behavioural problems (drug and alcohol abuse) which pervaded Mr Zarb’s life. Mr Zarb candidly acknowledged that he had been sexually aroused by a wide range of paraphilic material. In short, his engagement with child pornography and related content goes well beyond mere ‘escapist fantasies’ or a secondary complication of substance intoxication to indicate the presence of significant psychosexual pathology.
Mr Zarb’s treatment with Dr Barth has incorporated a focus on addressing deviant cognitions, challenging the misconceptions inherent in them. It is planned to assist Mr Zarb to develop better self-awareness and communication skills to allow him to address his interpersonal problems, and to incorporate an emphasis on improving his broader stress-management skills. Dr Barth informs me that Mr Zarb has made good (if incipient) progress towards his treatment goals.
Diagnostically, I would consider Mr Zarb’s offending behaviour to be sufficiently problematic to meet DSM-5 diagnostic criteria for an ‘Unspecified Paraphilic Disorder’.
……
A review of stable risk factors in Mr Zarb’s case would indicate a relatively low risk of recidivism. This evaluation takes into account his age, his good employment history, the lack of any prior criminal history (including the absence of any prior sexual or violent offending), and his capacity to sustain a long-term marriage. Each of these factors is correlated with lower rather than higher risk of recidivism. His risk of recidivism would be assessed as being in the ‘Low Risk’ range if such factors alone were considered.
A review of dynamic risk factors, however, suggests that this estimate may well underestimate the level of risk in Mr Zarb’s case. The main issues identified are those related to the dysfunctional arousal patterns and deviant cognitions which are intrinsic to the offending itself. It particular, the diversity of Mr Zarb’s paraphilic interest together with the entrenched and compulsive nature of his online activities are deeply concerning. To these are added the strong role played by substance misuse in his offending and the indications of broader behavioural disinhibition which it entails. Beyond such matters, Mr Zarb’s social skills remain relatively poor. In combination, and notwithstanding his reportedly good progress in treatment, these dynamic risk factors are assessed as raising Mr Zarb’s risk of recidivism beyond the ‘Low Risk’ range into the ‘Moderate Risk’ range overall.
Several protective factors can be delineated in Mr Zarb’s case. Firstly, he has participated actively in initial treatment and made good progress towards his specific treatment goals. While further treatment is clearly required, his capacity to benefit from the treatment he has received indicated that it would have a genuine protective benefit in his case. In addition, the requirements of sex-offender registration and the deterrent aspects of sentencing are expected to confer further protective containment in Mr Zarb’s case.
In summary, taking into account the combination of all factors Mr Zarb is assessed as being at ‘Moderate Risk’ of re-offending. With further participation in treatment and the protective factor of sex-offender registration it is likely that Mr Zarb’s overall risk of recidivism will ultimately be reduced. It should be noted that such risk of recidivism as is extant in his case would also most entirely relate to his use of the internet or other ‘virtual’ offending .
In his evidence at the plea hearing Dr Barth also considered that the respondent met the DSM-V diagnostic criteria for an Unspecified Paraphilic Disorder. The judge referred to his evidence as follows:
He described your conduct as being of a serious addictive nature, such that, although it had an adverse impact on your relationship with your wife, you, nevertheless, continued your offending behaviour. He stated that it is a difficult condition to deal with therapeutically. He considers that you require, at least, another three months of weekly sessions to make inroads into your condition, but would probably recommend twelve months of solid treatment. He considered that your Adjustment Disorder had fed into your Paraphiliac Disorder [sic]. He stated that there is a need to continue to treat your depressive symptoms and build your self-esteem while you are undertaking the cognitive behavioural therapy to address your sex offending.
Dr Barth stated that the sex offender treatment which you have been undertaking with him is based on best practice around the world, and employs the same principles as the programs run by the Department of Corrections, except that it is run on an individual basis and tailored to the specific offender, rather than being group therapy as run by the Department of Corrections. He considered that your emotional and psychological state was such that you would need approximately three months of individual treatment before you could cope effectively with any group therapy.[2]
[2]Reasons [32]-[33].
The judge’s reasons
After discussing the Crown opening which described the offences and referring to the mitigating factors on which the respondent was entitled to rely, her Honour stated that she had viewed a sample of the images and said that the worst of them ‘show children being humiliated by sexual abuse of a truly repulsive nature.’[3] Nevertheless the judge noted that although the period of offending on charge 1 extended over 15 months, ‘the overall number of images accessed was not extraordinarily high’.[4] In relation to charges 2 and 3 ‘the number of images transmitted [was] not extensive’ and there were only a few instances of transmission.[5] For these reasons she regarded the respondent’s culpability as ‘below the median for these offences.’[6]
[3]Reasons [44].
[4]Reasons [50].
[5]Reasons [50].
[6]Reasons [51].
Her Honour found that the respondent had exhibited very deep remorse and an exceptional commitment to his rehabilitation. She observed:
Thus, although the emphasis upon general deterrence in sentencing for offending of this type would generally require a custodial sentence, in your particular case I have concluded that a fairly lengthy Community Correction Order is a just and appropriate sentence, which can serve the purpose of general deterrence. I have received a report from the Office of Corrections dated 28 August 2014, which assesses you as suitable for a Community Correction Order. I note that the report assesses your general risk of re-offending (as distinct from specific sexual offending) as being low according to VISAT (Victorian Intervention Screening and Assessment Tool).
The gains which have been made by treatment since your arrest somewhat lessen the extent of the emphasis in sentencing which, otherwise, would need to be placed upon specific deterrence, although this is still definitely a factor which requires some emphasis, particularly given the length of the period of your offending on Charge 1. However, I consider that the sentencing objective of specific deterrence can be served by you undertaking a Community Correction Order. It seems to me that, for a person like yourself, who has achieved to a high managerial level in your work and been well regarded by colleagues and the community generally, to be compelled to engage in a Community Correction Order for a reasonably lengthy period of time is likely to have a deterrent effect, as well as permitting the progress which you have made towards rehabilitation to continue.
In arriving at this conclusion, I have taken into account that your emotional reaction to your legal predicament has been a severe one coming, as it does, on top of already fragile self-esteem and anxiety. I note that you have suffered suicidal ideation and I am satisfied that a sentence of imprisonment would weigh more heavily upon you because of your depression/Adjustment Disorder, and that there is a serious risk that imprisonment would have a significant adverse effect on your mental health. I consider that a term of imprisonment is very likely to jeopardise what rehabilitative gains you have made since your arrest and I particularly take heed of Dr Barth’s opinion that you are at a critical phase in the treatment of your sex offending.[7]
[7]Reasons [52]–[54].
The judge concluded that a non-custodial disposition was appropriate because serving time in custody would prevent the respondent from completing the sex offender treatment being provided by Dr Barth and the interests of the community would be served by rehabilitating the respondent.
Crown’s submissions
In essence the Crown argued that the individual sentences and total effective sentence imposed by her Honour gave insufficient weight to the seriousness of the offending, and to general deterrence and specific deterrence. Although her Honour had described the offending as serious, she had observed that the number of images accessed and transmitted was less than is often the case. In taking this approach her Honour had not had sufficient regard to the degree of depravity depicted in many of the images of the child victims. In the case of the images within level 1 of the CETS Scale, which covers the least serious form of child pornography, some were among the worst examples of the type of images falling within that category. There were also a significant number of images at the higher end of the scale.
In addition, her Honour had placed little emphasis on the broader context in which the offences occurred, including the terms used by the respondent to find material on the internet and the conversations and involvement in internet chat rooms in which he participated. The context in which the offences occurred demonstrated their persistent and premeditated nature.
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[8] that a non-custodial disposition could only be appropriate for child pornography offences in exceptional circumstances.[9] Counsel also relied on observations emphasising the centrality of general deterrence made by Osborn JA in Edwards v The Queen,[10] and by Tate JA in Heathcote (a pseudonym) v The Queen.[11]
[8][2014] VSCA 29, [48].
[9]His Honour was actually referring to offences ‘involving both the possession and transmission of significant quantities of child pornography, including some at high levels’: Ibid.
[10][2013] VSCA 188, [22] (Nettle and Coghlan JJA concurring).
[11][2014] VSCA 37, [40] (Sifris AJA concurring). See also DPP (Cth) v Chatterton [2014] VSCA 1; R v Jongsma (2004) 150 A Crim R 386, 401–4 [30]–[34] (the relevant offence in that case was the State offence of possession of child pornography).
It was also submitted that the sentences had not adequately recognised the importance of specific deterrence, having regard to:
·the psychological assessment of Mr Newton that the respondent had a moderate risk of reoffending and of Dr Barth that his risk of reoffending was ‘low to moderate’;
·the fact that the respondent was sexually aroused by the material and Mr Newton’s view that the ‘deviant nature of the material he accessed together with the extended duration of his involvement with it and the progression of his behaviour to include extensive engagement with others via “chat-rooms”’ pointed to the presence of wide-ranging and entrenched deviant sexuality; and
·the fact that the respondent did not abstain from alcohol and drug abuse until after his arrest in March 2014 and that the sex offender treatment program with which he had been involved was ‘only in its formative stage’.
The Crown also argued that her Honour had unduly emphasised the respondent’s prior good character, the personal references provided on his behalf and his engagement in treatment. She had also given undue weight to mitigating factors including his unfortunate family background, the role to which drug and alcohol abuse had played in the offending and to the importance of him continuing to receive treatment from Dr Barth.
Respondent’s submissions
The respondent relied on a number of decisions in which this Court has dismissed Crown appeals against the imposition of non-custodial sentences imposed for child pornography offences.[12] The respondent submitted that DPP (Cth) v Ison[13] demonstrated that if a person who had committed child pornography offences was remorseful, showed insight and was committed to rehabilitation, it was well open to the Court to impose a non-custodial sentence.
[12]DPP v Smith [2010] VSCA 215; DPP (Cth) v Ison [2010] VSCA 286. See also DPP (Cth) v Guest [2014] VSCA 29, [24].
[13][2010] VSCA 286.
The respondent submitted that the sentencing judge had given adequate weight to the depravity of the offending, although she had correctly taken account of the fact that the amount of material accessed and transmitted was not as great as is often the case. Her Honour had also referred to the broader context of the offending. The judge had recognised the importance of general deterrence in offences of this kind but was entitled to conclude that the imposition of a CCO was more likely to protect the community than the imposition of a custodial sentence, because it would reduce the prospect of the respondent re-offending. This was particularly important because, as Dr Barth had said in his evidence, it was unlikely that the respondent would receive sex offender treatment while he was in gaol.
The respondent submitted that even if the Court concluded that the sentences below were manifestly inadequate, it should exercise its discretion to dismiss the Crown’s appeal. If however the respondent was to be re-sentenced, the Court could acknowledge the seriousness of the offending by imposing terms of imprisonment on the individual counts with provision for an immediate release subject to a recognizance release order[14] and assist the respondent’s rehabilitation by combining the custodial disposition with a CCO.
[14]Crimes Act 1914 (Cth) s 20(1)(b).
Conclusion
Sentencing principles
In DPP v Smith[15] Nettle JA enunciated the principles which apply in sentencing offenders for child pornography offences as follows:
[15][2010] VSCA 215, [23]. Nettle JA expressed these principles as applicable to offences of possessing child pornography, but they also appear to apply to offences of accessing and transmitting child pornography.
1)First, the nature and gravity of the offending ordinarily falls to be determined by reference to the four criteria adumbrated by Johnson J in R v Gent:[16]
[16](2005) 162 A Crim R 29, 49 [99] (Johnson, McLelland CJ at CL and Adams J concurring).
(a)The nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted.
(b) The number of images or items possessed.
(c)Whether the material is for the purpose of sale or further distribution.
(d) Whether the offender will profit from the offence.
In the case of child pornography for personal use, the number of children depicted and thereby victims is also regarded as a relevant consideration.
2)Secondly, general deterrence is regarded as the paramount sentencing consideration - because of the public interest in stifling the provision and use of child pornography; and less or limited weight is given to an offender's prior good character because it has been the experience of the courts that such offences are committed frequently by persons otherwise of good character.[17]
3)Thirdly, a sentence of immediate imprisonment would ordinarily be warranted,[18] but it is recognised that there are cases where a sentence which does not involve a period of actual custody is not precluded.[19]
Was the sentence manifestly inadequate?
[17]See DPP v D’Alessandro (2010) 26 VR 477, 483 [21] (Harper JA), where the cases are considered.
[18]See R v Jongsma (2004) 150 A Crim R 386, 395; Hill v Western Australia [2009] WASCA 4, [28] and the cases there cited; R v Booth [2009] NSWCCA 89, [48] (Simpson J); R v Sykes [2009] QCA 267; DPP v Groube [2010] VSCA 150, [24].
[19]R v Gordon; Ex parte DPP (Cth) [2011] 1 Qd R 429, 437 [43]; R v Sykes [2009] QCA 267, [24].
Having regard to the circumstances of the offending and the principles set out above, we consider that the ground of manifest inadequacy is made out.
The sentencing judge faced a difficult sentencing task. On the one hand, the respondent was entitled to rely on powerful mitigating factors, including his guilty plea, significant remorse and his distressing and disruptive childhood. It is unfortunate that the respondent did not seek sex offender treatment until his offending was detected. Nevertheless the respondent’s expenditure of part of his superannuation on drug treatment and his participation in a sex offender treatment program, indicate his remorse and his commitment to rehabilitation. All these factors give cause for hope that he will not re-offend.
On the other hand, as his counsel conceded at the plea hearing, the respondent’s moral culpability was high and the offences were very serious. At the request of counsel for the Crown, the Court viewed a sample of the level 1 images covered by charge 1. Although 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 the child victims, who were arranged in sexualised poses displaying their genitalia. The images at the higher end of the CETS Scale depicted horrifying degradation and exploitation of young children.
The offence covered by charge 1 involved the accessing and downloading of fewer images than is often the case. However, the respondent’s offending was sustained over a 15 month period. The downloading of the images was not a momentary lapse, provoked by consumption of excessive amounts of alcohol or addiction to ‘ice’ and other drugs. As the search terms used by the respondent demonstrate, the respondent undertook extensive searches for images of this kind. Fifty–seven images and one movie fell within level 4, which covers penetrative sexual activity between children and adults and 11 images fell within level 5.
Although charges 2 and 3 involved the transmission of a relatively small number of child pornography images to a small number of recipients, these images also included appalling examples of sexual exploitation and abuse. The level 4 images included depictions of girls aged between 3 and 7 years being sexually penetrated by adult males. The offending in charge 2 was accompanied by the statements which the respondent made to the police investigator about abusing a daughter in order to punish an ex-wife. Although there is no suggestion that the respondent acted on this fantasy, it causes concern about the extent of the respondent’s sexual deviance and gives weight to Dr Barth’s view that the respondent has a paraphilic disorder.
The respondent had three daughters who described him as a kind and loving father in their character references. Having had children of his own, it is extraordinary that the respondent did not appreciate the likely effect on children who are used simply as objects to gratify the sexual urges of viewers of child pornography. If he did understand this effect, he chose to ignore it by accessing and in some cases transmitting, images which are created by the terrible abuse of children.
The appalling effect which these offences are likely to have on the children who are used to make pornography, which may include both psychological trauma and the physical effects of sexual penetration at a very young age, required the sentencing judge to accord great significance to general deterrence. We would accept the Crown submission that the production and exchange of such images can only be reduced by addressing the demand for images of this kind. As Tate JA observed in Heathcote(a pseudonym):
[I]t is necessary to be mindful of the principles that govern the sentencing of child pornography offenders, in particular, the centrality of general deterrence and the recognition that a market exists for the sexual exploitation of children, made worse by the capacity to exchange images on the internet.[20]
[20][2014] VSCA 37, [40].
The problem was also described by Harper JA in DPP (Cth) v D’Alessandro[21] as follows:
… 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.[22] 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.[23] 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.[24] Fourthly, that those who make up that market cannot escape responsibility for such exploitation.[25] Fifthly, that limited weight must be given to an offender’s prior good character.[26] Sixthly, that a range of factors bear upon the objective seriousness of the offences to which the respondent in this case pleaded guilty.[27]
[21](2010) 26 VR 477.
[22] R v Jones (1999) 108 A Crim R 50, 51 (Kennedy J).
[23]Assheton v The Queen (2002) 132 A Crim R 237, 246–7 [35]–[36] (Malcolm CJ, Murray and Steytler JJ concurring).
[24] R v C; Ex parte DPP (Cth) [2004] QCA 469, [21] (McMurdo P).
[25]R v Gent (2005) 162 A Crim R 29, 40 [43] (Johnson J, McClennan CJ at CL and Adams J concurring).
[26]Ibid 44 [65].
[27]DPP (Cth) v D’Alessandro (2010) 26 VR 477, 483 [21].
In Dinsdale v The Queen[28] Gleeson CJ and Hayne J remarked that a sentence may be manifestly inadequate or excessive ‘because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short’.[29] In our view it was outside the range of the judge’s sentencing discretion to impose an entirely non-custodial sentence on this respondent for serious examples of offences which carry a maximum of 15 years imprisonment.
[28](2000) 202 CLR 321.
[29]Ibid 325-6 [6].
The failure to sentence the respondent to any term of imprisonment for these offences raises the inference that general deterrence was given insufficient weight, despite the judge’s acknowledgement that this was a paramount factor.
We would also accept the Crown’s submission that although her Honour characterised the respondent’s rehabilitation prospects as ‘good’ she paid insufficient attention to specific deterrence, having regard to the relatively short period during which the respondent had been receiving treatment and to the qualifications about rehabilitation expressed in the report of Mr Newton and the evidence of Dr Barth.
Sentences imposed on other offenders for similar offending are of limited assistance in determining the sentence which should be imposed on a particular offender. That being said we would reject the respondent’s submission that a non-custodial sentence was appropriate, having regard to the decisions of this Court in DPP (Cth) v Ison[30] and DPP v Smith.[31]
[30][2010] VSCA 286.
[31][2010] VSCA 215.
In DPP (Cth) v Ison,[32] the offender pleaded guilty to two Commonwealth offences of using a carriage service to access child pornography and causing child pornography to be transmitted to himself and a State offence of possessing child pornography. A larger number of images were in the offender’s possession than the respondent accessed and downloaded in the present case. This Court held that suspended sentences of 18 months imprisonment to be served concurrently for the first Commonwealth offence and the State offence and a two year community-based order for the second Commonwealth offence, were not manifestly inadequate. In that case the offender was a 30 year old man, with no prior convictions, who was shy and socially isolated. According to the psychological report provided to the Court for sentencing purposes, he had struggled with the knowledge that he was homosexual.
[32][2010] VSCA 286.
In DPP v Smith,[33] the offender pleaded guilty to a Commonwealth offence of using a carriage service to access child pornography and a State offence of possessing child pornography. He was sentenced to 18 months imprisonment wholly suspended for 2 years on the former charge and to a community based order on the latter charge. The Crown appealed on the basis that the sentence imposed for the State offence was manifestly inadequate. The number of child pornography images possessed was greater than in the present case, although some of the images were even more depraved. The period of possession of the images was shorter than the 15 month period during which the respondent in the present case downloaded images.
[33][2010] VSCA 215.
The sentencing judge in Smith found that the ‘respondent’s offending was the addictive consequence of curiosity on the part of a socially very immature human being living an extraordinary lonely existence, and he lacked insight into [the] effect [on] the victims until after he was arrested.’[34] Nettle JA, with whom Harper and Hansen JJA agreed, considered that the offender was very fortunate to be spared a custodial disposition, but that the sentence was not manifestly inadequate.[35]
[34]Ibid [26].
[35]Ibid [29].
When the appeal was heard in Smith the respondent was almost half-way towards completing his required period of 150 hours community service and was about to commence group therapy, after having had about a year of individual therapy. Nettle JA said that even if, contrary to his view, the sentence was manifestly inadequate, he would exercise his discretion not to intervene having regard to these circumstances.[36]
[36]Ibid [30].
Although the offenders in DPP (Cth) v Ison[37] and DPP v Smith[38] accessed a larger number of images than occurred here, their offending was not sustained over as long a period as the offending in charge 1. Further, the respondent was older than either of the offenders in Ison and Smith and had a family. In addition, the maximum sentence for the Commonwealth offences with which the respondent was charged in this case has been increased from 10 to 15 years since the appeals in Ison and Smith were dismissed. There may be some cases where the fleeting nature of the offending or the youth or other circumstances of the offender justify the imposition of a wholly non-custodial sentence. But in our view this is not such a case.
[37][2010] VSCA 286.
[38][2010] VSCA 215.
In DPP (Cth) v Guest,[39] which was decided after the maximum sentence for the Commonwealth offence of using a carriage service to access child pornography was increased from 10 to 15 years, this Court held that a three year and six months CCO imposed for two Commonwealth offences of accessing child pornography and transmitting child pornography and a State offence of possessing child pornography (the maximum term of imprisonment being 5 years) was manifestly inadequate. The circumstances of the offending and the offender were somewhat similar to those in this case. More images were downloaded than in the present case but again this occurred for a shorter period.
[39][2014] VSCA 29.
Coghlan JA, with whom Weinberg and Whelan JJA agreed, considered that a CCO did not give adequate weight to general deterrence and that a term of imprisonment involving immediate custody should have been imposed. The offender was sentenced to concurrent terms of 18 months imprisonment, backdated to the date of his original sentence, on the two charges of accessing and transmitting child pornography respectively. The backdating took account of the fact that the offender had already served part of his CCO. The Court ordered that the offender be released after serving approximately two months in custody and imposed a recognizance release order for a period of two years. On the charge of possession of child pornography, he was sentenced to a period of two months imprisonment.
The Crown relied on Edwardsv The Queen[40] as another example of a case where custodial sentences had been imposed for Commonwealth pornography offences. In Edwards, where the offender’s intellectual disability had contributed to his offending, he was re-sentenced to a total effective sentence of nine months imprisonment for the relevant charges and was then to be released on a 12 months recognizance release order after serving four months, inclusive of pre-sentence detention.[41]
[40][2013] VSCA 188.
[41]See also DPP (Vic) v Chatterton [2014] VSCA 1. The Commonwealth offences in that case were not directly comparable but also carried a maximum term of 15 months imprisonment.
In our opinion the gravity of the offences, the weight to be given to general and specific deterrence and the need to denounce this type of offending, were not adequately reflected in the sentences imposed by her Honour. As a consequence, the individual sentences and total effective sentence fell outside the range of sentences which could be imposed in the reasonable exercise of the sentencing discretion.
For these reasons we would allow the appeal and re-sentence the respondent.
For the purpose of re-sentencing the respondent, we have taken into account the affidavit sworn on 17 November 2014 by his solicitor which provides details of the respondent’s current employment, sporting activities and participation in programs conducted by Narcotics Anonymous and Alcoholics Anonymous. We have also taken into account a report dated 12 November 2014 prepared by Dr Barth and a progress report dated 12 November 2014 prepared by Corrections Victoria in relation to the CCO. Dr Barth reported that the respondent’s ‘treatment is incomplete and remains at a crucial stage’ and that the respondent ‘would be at significant risk of further deterioration in his moods if he were to receive a custodial sentence and would require close monitoring by prison mental health staff’. The Corrections Victoria report states that the respondent has complied with the CCO and is ‘making positive progress’.
In all the circumstances, we would re-sentence the respondent to a term of imprisonment for three months on charge 1 and a CCO of 2 years on charges 2 and 3, which will be ordered to commence at the conclusion of the term of imprisonment, subject to the same conditions as those imposed by her Honour. The period of the CCO takes account of the fact that the respondent has already served three months on the CCO to which he was previously sentenced on charge 1.
We consider that the imposition of a period of imprisonment is necessary to balance the competing considerations which arise in sentencing the respondent. The three month period which the respondent will serve in prison will denounce his conduct and recognise the paramount importance of general deterrence, without significantly interrupting the sex offender treatment he is receiving from Dr Barth. It will also provide an additional incentive to the respondent to avoid re-offending.[42] The imposition of the CCO after the respondent has served his prison sentence is intended to encourage him to maintain his efforts to rehabilitate himself and to require him to continue his treatment.
[42]The respondent does not fall to be sentenced as a serious sexual offender on charge 3 because he has only been sentenced to a term of imprisonment on charge 1: see Sentencing Act 1991 s 6B (definition of ‘serious sexual offender’), cl 1(df)(ii), sch 1. However if he commits a second offence for which he is sentenced in the future, he will thereafter be liable to be sentenced as a serious sexual offender.
The judge declared that the offences to which the respondent pleaded guilty required him to be registered under the Sex Offenders Registration Act 2004 and to comply with the reporting obligation imposed by that Act for life. We would make a similar declaration.[43]
[43]See Sex Offenders Registration Act 2004 ss 7(1), (3), 34(1)(c)(iii) and cl 28A, sch 2.
Under s 6AAA of the Sentencing Act 1991 we declare that if the respondent had not pleaded guilty to the offences, we would have sentenced him to a total effective sentence of 18 months imprisonment.
PRIEST JA:
What Neave and Kyrou JJA propose is, with respect, mere tinkering.
There is a strong and ingrained judicial aversion to tinkering. In Dinsdale,[44] Kirby J observed:
For reasons of legal history and policy, the position of Crown appeals against sentence has long been regarded, in Australia and elsewhere, as being in a class somewhat different from that of an appeal against sentence by a convicted offender. When first introduced, Crown appeals were considered to cut across ‘time-honoured concepts’[45] of the administration of criminal justice in common law legal systems. For this reason, it has sometimes been said that, as a ‘matter of principle’[46], such appeals should be a comparative rarity. The attitude of restraint reflected in such remarks has often been justified on the basis that a Crown appeal against sentence puts the prisoner in jeopardy of punishment for a second time, a feature that is ordinarily missing from an appeal, or application for leave to appeal, brought by those who have been sentenced[47]. The consequence is that where the Crown appeals, it is normally obliged to demonstrate very clearly the error of which it complains. The further consequence is that, where such demonstration succeeds, it is conventional for the appellate court to impose a substituted sentence towards the lower end of the range of available sentences[48]. This convention tends to add an additional restraint upon interference, given the strong resistance that exists against appellate ‘tinkering’ with sentences.
[44]Dinsdale v The Queen (2000) 202 CLR 321 (‘Dinsdale’), 340–1 [62].
[45]Peel v The Queen (1971) 125 CLR 447 at 452.
[46]Griffiths v The Queen (1977) 137 CLR 293 at 310.
[47]Whittaker v The King (1928) 41 CLR 230 at 248 per Isaacs J (diss); cf R v Tait (1979) 24 ALR 473 at 476–477; Malvaso v The Queen (1989) 168 CLR 227 at 234; R v Grein [1989] WAR 178 at 180; Everett v The Queen (1994) 181 CLR 295 at 299.
[48]A consideration acknowledged in the CCA judgment at 2 by reference to R v Peterson [1984] WAR 329 at 330–331; cf R v Clarke [1996] 2 VR 520 at 522.
Although these observations were made at a time when the principle of double jeopardy was applicable to Crown appeals — undiluted by later legislative changes[49] — nonetheless the very great reluctance of appellate courts to interfere with the exercise of a sentencing judge’s discretion so as merely to tinker remains an important restraint on appellate intervention. Indeed, the strong resistance to tinkering seems to have been recognised as a further restraint on judicial intervention, independent of the restraint flowing from any consideration of double
jeopardy. Thus in Ceissman,[50] Wood CJ at CL said: ‘It may also be noted that a further restraint on interference arises from the strong resistance that exists against appellate tinkering with sentences: see Dinsdale v R (2000) 202 CLR 321 also at para 62, an admonition that has not always been heeded in both Crown appeals and in appeals against sentence.’[51]
[49]Double jeopardy was removed as a consideration in Crown appeals by virtue of s 290(3) of the Criminal Procedure Act 2009, with effect from 1 January 2010.
[50]R v Ceissman [2004] NSWCCA 466 (Wood CJ at CL, Simpson and Barr JJ) (‘Ceissman’).
[51]Ibid [8]. See also R v Vera [2008] NSWCCA 33, [26] (Fullerton J).
Section 287 of the Criminal Procedure Act 2009 (‘CPA’) permits the Director of Public Prosecutions (‘DPP’) to appeal against a sentence if he considers that there is an error in the sentence imposed and that a different sentence should be imposed, and he is satisfied that an appeal should be brought in the public interest. Pursuant to s 289(1) this Court must allow the appeal if satisfied that there is an error in the sentence and a different sentence should be imposed. Subsection (2) provides that in considering whether an appeal should be allowed, the Court ‘must not take into account any element of double jeopardy involved in the respondent being sentenced again, if the appeal is allowed’. In any other case, by virtue of s 289(3) the Court must dismiss the appeal.
The CPA provisions governing appeals by the DPP were considered in Karazisis.[52] The majority (Ashley, Redlich and Weinberg JJA) held that the provisions eliminate double jeopardy when this Court is considering whether there has been an error in the sentence first imposed, and remove double jeopardy as a discretionary consideration when the Court determines whether it is satisfied that a different sentence should be imposed.[53] Further, when the Court has determined to intervene and impose a different sentence, s 290(3) removes the application of the principle of double jeopardy from the fixing of the sentence.[54] Their Honours emphasised, however, that the Court has always had a residual discretion to refuse to intervene even if sentencing error has been shown, and that residual discretion survives, despite the fact that double jeopardy has been removed as one of the bases upon which it might be exercised.[55]
[52]DPP v Karazisis; DPP v Bogtstra; DPP v Kontoklotsis (2010) 31 VR 634 (Warren CJ, Maxwell P, Ashley, Redlich and Weinberg JJA) (‘Karazisis ‘).
[53]Ibid, 648–9 [52].
[54]Ibid, 649 [53].
[55]Ibid, 648–9 [52], 649 [53]; 652 [73] et seq; 661 [119].
One of the factors that the majority in Karazisis identified as possibly animating the residual discretion was rehabilitation.[56] That is a factor of signal importance in the present case. Ashley, Redlich and Weinberg JJA said:[57]
[56]Ibid, 658 [104]; 659–60 [111]–[114].
[57]Ibid, 661–2 [119]–[123].
It follows that, in our opinion, save for the abolition of the element of double jeopardy as a factor that can be taken into account in dealing with Crown appeals, the new provisions do not interfere in any way with the Court’s residual discretion to dismiss such appeals, even if satisfied that the sentence below was inadequate. Nor, save for the abolition of double jeopardy, do these new provisions interfere with the Court’s discretion in imposing a fresh sentence if the appeal is allowed. That conclusion derives both from the construction of the Act, and the long tradition in the common law of viewing Crown appeals as fundamentally different from appeals by convicted persons.
The notion that Crown appeals should be ‘rare and exceptional’ no longer applies as a sentencing principle to which this Court must have regard. …
Importantly, as the New South Wales Court of Criminal Appeal observed in Allpass:[58]
If a Crown appeal against sentence is successful, and the appellate court resentences the respondent, it does so in the light of all the facts and circumstances as at the time of resentencing. Events which have occurred after the original sentencing may be relevant.[59]
That statement remains as true today as it was when it was first made. It provides a powerful reason why, notwithstanding the enactment of the new provisions, Crown appeals are likely to continue to be relatively infrequent, and subject to particular discretionary obstacles which the Crown must overcome.
In short, we do not accept that all Crown appeals, to which the new provisions apply, being appeals against those sentences imposed on or after 1 January 2010, are to be determined on the same basis as appeals by convicted persons against their sentences. A Crown appeal against inadequacy of sentence is not to be regarded as simply the other side of the coin, as compared to an offender’s appeal against manifest excess.
[58][R v Allpass] (1993) 72 A Crim R 561.
[59]Ibid 562.
In Dinsdale, Gleeson CJ and Hayne J observed:[60]
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at that conclusion. …
[60]Dinsdale, 325–6 [6] (emphasis added). See also DPP v Werry (2012) 37 VR 524, 534 [52]–[53] (Warren CJ, Maxwell P, Buchanan, Weinberg and Bongiorno JJA).
Kirby J (with whom Gaudron and Gummow JJ agreed) observed:[61]
The legal process before the Court of Criminal Appeal was, as described, an appeal. This is a creation of statute.[62] An appeal may take several forms, the precise nature in a particular case depending upon the legislation in question.[63] Here, that legislation, by providing for an appeal, required the demonstration of error before the appellate court enjoyed the authority to disturb the decision subject to appeal. In Lowndes v The Queen,[64] this Court remarked that:
‘a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. ... The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.’
The necessity to show error in such a case is fully accepted by courts deciding appeals against sentence.[65] … Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it.[66] As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts.[67]
[61]Ibid, 339–40 [57]–[60] (emphasis added).
[62]State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306, 322 [72]; 160 ALR 588, 609.
[63]Fleming v The Queen (1998) 197 CLR 250, 258–260 [17]–[21]; cf Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281, 297–298 (Glass JA).
[64](1999) 195 CLR 665, 671–672, [15].
[65]See eg R v Tait (1979) 24 ALR 473, 476; Allpass (1993) 72 A Crim R 561, 562; R v Clarke [1996] 2 VR 520, 522.
[66]Cf House v The King (1936) 55 CLR 499, 504–505.
[67]House v The King (1936) 55 CLR 499, 505; Cranssen v The King (1936) 55 CLR 509, 519–520; Harris v The Queen (1954) 90 CLR 652, 655.
In Karazisis, similar notions were expressed by the majority:[68]
In Victoria, the contention that a sentence was manifestly inadequate is invariably expressed as a submission that the sentence was outside the range reasonably open to the sentencing judge in the circumstances.[69] 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.[70] 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 of the offender.
The Court will be astute to enforce the stringency of this test. As the High Court has emphasised:
The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.[71]
[68]Karazisis, 662-3 [127]-[128].
[69]R v MacNeil-Brown (2008) 20 VR 677, 680.
[70]R v Boaza [1999] VSCA 126, [42] (Winneke P).
[71]Lowndes v The Queen (1999) 195 CLR 665, 672 (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).
Neave and Kyrou JJA helpfully have set out the circumstances of the offending, the circumstances of the respondent and something of the judge’s reasons for sentence, together with important aspects of the appellant’s and the respondent’s submissions. I am thus relieved from their recapitulation, save to the extent desirable to make my reasons comprehensible.
In his written case, the Director submitted that the sentence imposed failed to reflect the seriousness of the offending, including the nature and content of the material (in particular, the age of the children and gravity of the sexual activity depicted; whether the material was for the purpose of sale or further distribution; and the number of images possessed).[72] A community correction order did not sufficiently meet the need for general deterrence. Courts have made it abundantly clear that general deterrence is the ‘paramount sentencing consideration’ in offending involving child pornography[73] and that a non-custodial disposition should only be imposed in exceptional circumstances[74] given the prevalence and ready availability of pornography involving children, particularly on the internet. It was argued that the judge gave insufficient weight to specific deterrence, and failed to give sufficient weight to the need to adequately punish the respondent. The Director argued that, in imposing a community correction order, the judge failed to give sufficient weight to the maximum penalty prescribed, or to the need to maintain consistency in sentencing standards. Undue weight, it was submitted, was given to the respondent’s plea of guilty; to his personal circumstances; to his prior good character; to his prospects of rehabilitation; to his engagement in treatment; and to the nature and extent of treatment available outside prison. Orally, the Director submitted that the sentence imposed was ‘repugnant to community standards’. He emphasised the seriousness of the offending, and submitted that the need for deterrence and denunciation were given insufficient weight. Imprisonment, so it was submitted, had a ‘protective effect’, and rehabilitation was ‘advanced’ by incarceration.
[72]R vGent (2005) 162 A Crim R 29 (Wood CJ at CL, Adams and Johnson JJ); DPP (Cth) vD’Alessandro (2010) 26 VR 477 (Redlich and Harper JJA, and Williams AJA) (‘D’Alessandro’).
[73]R vGent (2005) 162 A Crim R 29, 37 [33] (Johnson J); D’Alessandro (2010) 26 VR 477, 483 [21] (Harper JA); R vFulop (2009) 236 FLR 376 (Buchanan JA); Heathcote (a pseudonym) vThe Queen [2014] VSCA 37, [40]–[42] (Tate JA).
[74]DPP (Cth) v Guest [2014] VSCA 29, [21], [48] (Coghlan JA).
Counsel for the respondent submitted that the judge, having been told that general deterrence was the paramount consideration in sentencing for the present offences, had ‘anguished’ over the sentence she imposed. The reasons for sentence were, counsel submitted, a ‘model of detail’. The judge found that the respondent’s level of remorse was ‘exceptional’, and that there was otherwise ‘exceptional mitigatory material’. Counsel argued that the evidence demonstrated that the respondent suffered from a ‘severe paraphilic disorder’. The most compelling evidence came from Dr Barth — the respondent is ‘ill’, and will not get the treatment he requires in prison, including important ‘individualised treatment’. Indeed, Dr Barth had given uncontradicted evidence that the respondent would not receive the treatment that he needed in custody, and the risk of relapse was high if he were to be incarcerated. Imprisonment will have a deleterious effect on the respondent’s rehabilitation, and will, according to Mr Newton, ‘set him on his head’. For these reasons, counsel submitted, the appeal should be dismissed.
In my view, the submissions of the respondent’s counsel should be accepted.
In D’Alessandro,[75] Harper JA remarked that ‘there seems to be unanimous support across the jurisdictions for a number of propositions’, which he then endeavoured to distil:
First, that the problem of child pornography is an international one.[76] 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.[77] 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.[78] Fourthly, that those who make up that market cannot escape responsibility for such exploitation.[79] Fifthly, that limited weight must be given to an offender’s prior good character.[80] Sixthly, that a range of factors bear upon the objective seriousness of the offences to which the respondent in this case pleaded guilty.[81] 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.
[75]D’Alessandro, 483-4 [21]. See DPP v Smith [2010] VSCA 215; Burrell v R [2013] VSCA 146; Edwards v R [2013] VSCA 188; DPP (Cth) v Guest [2014] VSCA 29; Heathcote(a pseudonym) v R [2014] VSCA 37. See also R v Fulop (2009) 236 FLR 376; DPP v Groube [2010] VSCA 150; R v Pantelic (2010) 30 VR 589; Farrell v R [2010] VSCA 251; DPP (Cth) v Ison [2010] VSCA 286; Cooper v R [2012] VSCA 32; Rivo v R [2012] VSCA 117; R v Cooper [2012] ACTCA 9, [39]–[40], Bayliss v R [2013] VSCA 70; DPP (Cth) v Chatterton [2014] VSCA 1. Additionally, see Kate Warner, Sentencing for child pornography, (2010) 84 ALJ 384.
[76]R v Jones (1999) 108 A Crim R 50 at 51 per Kennedy J.
[77]Assheton v R (2002) 132 A Crim R 237 at 246–7, [35]–[36] per Malcolm CJ, Murray and Steytler JJ agreeing.
[78]R v Cook; Ex parte Director of Public Prosecutions (Cth) [2004] QCA 469 at [21] per McMurdo P.
[79]R v Gent (2005) 162 A Crim R 29 at 40, [43] per Johnson J, McClennan CJ at CL and Adams J concurring.
[80]At 44, [65].
[81]At 49, [99].
In distilling these propositions, Harper JA drew significantly on the reasons of the Court of Criminal Appeal of New South Wales in Gent,[82] upon which the Director placed a deal of reliance on the hearing of the present appeal. Nettle JA also drew upon Gent in Smith,[83] when setting out the ‘precepts which apply to the sentencing of offenders for offences of possessing child pornography’, which, in his Honour’s view, ‘are tolerably clear’.[84] Importantly, the third of those precepts was that ‘a sentence of immediate imprisonment would ordinarily be warranted,[85] but it is recognised that there are cases where a sentence which does not involve a period of actual custody is not precluded’.[86]
[82]R v Gent (2005) 162 A Crim R 29 (‘Gent’).
[83]DPP v Smith [2010] VSCA 215 (‘Smith’).
[84]Ibid, [23].
[85]See R v Jongsma (2004) 150 A Crim R 386, 395 (Batt JA); Hill v Western Australia [2009] WASCA 4, [28] (McLure JA) and the cases there cited; R v Booth [2009] NSWCCA 89, [48] (Simpson J); R v Sykes [2009] QCA 267, [24] (Mullins J); Director of Public Prosecutions (Vic) v Groube [2010] VSCA 150, [24] (Coghlan AJA).
[86]R v Gordon ex parte DPP (Cth) [2011] 1 Qd R 429, 437 [43] (Keane JA); R v Sykes [2009] QCA 267, [24] (Mullins J).
The third precept to which Nettle JA adverted assumes some significance in this appeal, since, as I understood his submissions, the Director contended that a non-custodial disposition for the kind of offending with which we are concerned could only be contemplated in ‘exceptional circumstances’ (which, he argued, are absent in this case). The Director relied on what Coghlan JA said in Guest[87] (with the concurrence of Weinberg and Whelan JJA):
… [I]n 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.
[87]DPP (Cth) v Guest [2014] VSCA 29 (‘Guest’).
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.[88] 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.
[88]See above [69].
The Director pointed out that since D’Alessandro and Smith were decided, however, the maximum penalty has since increased from 10 years’ imprisonment to 15 years’ imprisonment.[89] He relied upon Markarian.[90] 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.
[89]The increase was as a result of the Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 (Cth), with effect from 15 April 2010.
[90]Markarian v The Queen (2005) 228 CLR 357 (‘Markarian’).
I digress to mention one further submission made by the Director. During the hearing of the appeal, the Director urged the Court to view the relevant child pornography. The reason advanced was that it was necessary for the Court to do so in order to appreciate the true nature of the material. Ultimately, the Court viewed some of the images towards the lower end of seriousness. There have been instances when an appellate court has desired to view such material in order to gain an overall impression of it and, in particular, its degree of depravity.[91] In my view, however, it should generally be unnecessary for a judge or magistrate to view such material, so long as the prosecution provides — as it did in this case — a detailed description of the relevant images or videos. Of course, there may be occasion to view such material if there be a dispute as to its true nature; but, absent such a controversy, the classification system used,[92] augmented by any other description of particular material thought necessary, should generally be sufficient.
[91]R v Jongsma (2004) 150 A Crim R 386, 404 [35]. See also Heathcote (a pseudonym) vThe Queen [2014] VSCA 37, [22]–[25] (Tate JA).
[92]See [5]–[7] above (Neave and Kyrou JJA).
In one sense, all criminal law is concerned with the protection of the community. Whether one embraces the logic of it or not — and conceptually it is too ingrained in sentencing law to reject it as a guiding principle[93] — the notion underpinning general deterrence is that persons minded to commit crime of a particular kind (child pornography offences in this case) will look to the sentences imposed in similar cases and be deterred from the crime’s commission. In this way, the community is protected. Similarly, the notion underpinning the concept of specific deterrence is that the individual standing for punishment will not repeat his or her anti-social behaviour because of the risk of being punished again. The community is thus protected from a risk of repeated offending by the individual. And rehabilitation, too, is concerned with the protection of the community. If an offender’s criminal propensities may be curbed by a sentence that properly allows for his or her rehabilitation, the community’s protection is advanced by its imposition.
[93]See DPP (Cth) v El Karhani (1991) 21 NSWLR 370.
In effect, the Director contended that the judge permitted the matters going in mitigation — particularly, the respondent’s rehabilitation — to swamp other important considerations, such as general deterrence, just punishment and denunciation. To adopt the language of Dinsdale, however, it is not ‘plainly apparent’ to me that the sentence imposed in the County Court is inadequate. Rather, it strikes me as a wise and balanced disposition, and one that reflects the desirability of ensuring the respondent’s continued rehabilitation, thus promoting community protection. Moreover, the sentence is significantly punitive, requiring the respondent to perform on each order 150 hours of community work whilst also being subject to supervision and treatment. The judge found that the respondent’s remorse was exceptional, as were his efforts to rehabilitate. There was uncontradicted evidence that imprisonment might be deleterious to the respondent’s reformation, and, indeed, cause a relapse. It is in the community’s interest to permit the respondent’s rehabilitation to continue uninterrupted by a short period of custody which, with respect, will serve no good purpose, and may positively be harmful. Sentencing judges are entrusted with substantial discretion. That discretion was properly exercised in this case.
I would dismiss the appeal. Even were I of the view that the sentence was inadequate, however, I would not intervene so as merely to fiddle with the original sentence.
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