DPP v Hum (a pseudonym)
[2022] VSCA 57
•8 April 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0049
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| HOWARD HUM (a pseudonym)[1] | Respondent |
[1]To ensure that there is no possibility of identification of the victims of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the respondent’s name.
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| JUDGES: | KYROU, NIALL AND WHELAN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 25 March 2022 |
| DATE OF JUDGMENT: | 8 April 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 57 |
| JUDGMENT APPEALED FROM: | [2021] VCC 403 (Judge Gwynn) |
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CRIMINAL LAW – Sentence – Crown appeal – Sexual penetration of child under 16 – Sexual assault of child under 12 – Production, possession and distribution of child abuse material – Total effective sentence of 8 years 8 months’ imprisonment – Whether individual sentences manifestly inadequate – Whether orders of concurrency and cumulation resulted in manifestly inadequate total effective sentence – Whether judge failed to apply s 6E of the Sentencing Act 1991 – Significant childhood deprivation and trauma – Need for community protection – Need for specific and general deterrence – Individual sentences below standard sentence – Individual sentences lenient but not manifestly inadequate – Error established in orders for concurrency and cumulation and in application of s 6E – Manifestly inadequate total effective sentence – Appeal allowed – Resentenced to 11 years 8 months’ imprisonment – Director of Public Prosecutions (Cth) v Garside (2016) 50 VR 800, McL v The Queen (2000) 203 CLR 452, applied; Sentencing Act1991 ss 5A, 5B, 6E, 6D, 11A.
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| APPEARANCES: | Counsel | Solicitors |
| For the appellant | Mr C Boyce QC with Ms R Harper | Ms A Hogan, Solicitor for Public Prosecutions |
| For the respondent | Mr P Morrisey SC with Mr R Thyssen | Ann Valos Criminal Law Pty Ltd |
KYROU JA
NIALL JA
WHELAN JA:
On 9 April 2021, the respondent was sentenced in the County Court to a total effective term of imprisonment of 8 years 8 months with a non-parole period of 5 years 9 months. He had pleaded guilty to a series of sex offences against children, including one offence of sexual penetration of a child under 12 years of age, two offences of sexual assault of a child under 16 years of age, 11 offences of production of child abuse material, offences of possession and distribution of child abuse material, and offences of possession of cannabis and contravention of bail conditions. The first of these offences was committed in November 2012 when the respondent was 17 years old. The rest of the offences were committed during the period 2018 to 2020 when he was 22 to 24 years of age. At the date of sentence he was 25.
The respondent has a tragic personal history. He suffered an acquired brain injury as a baby as a consequence of being shaken by his mother. He was taken from his parents and had up to 20 foster care placements by the age of 4, when he established a long term, if not stable, relationship with his foster mother. His behaviour has been very troubled throughout his life. He has been the subject of much intervention and attempted support. He has appeared in court on many occasions. He has been violent towards his foster mother. Until the offences which are the subject of this appeal, he did not have a significant history of sex offences. He had been placed on 12 months’ probation for two offences of possession of child pornography in the Children’s Court in 2012.
Three of the offences to which the respondent pleaded guilty (charges 7, 8 and 14), were offences in relation to which a standard sentence was specified, thereby engaging the provisions of ss 5A, 5B and 11A of the Sentencing Act 1991 (‘the Act’). The provisions of Part 2A of the Act, and in particular s 6E (a presumption of cumulation), applied to all of the sentences imposed after conviction on the first two charges.
The Director now appeals the sentences imposed on two grounds. They are:
(1) The individual sentences (save for the sentence imposed on charge 1), the periods of cumulation, the total effective sentence and the non-parole period are manifestly inadequate.
(2) The learned sentencing judge erred by failing to apply the terms of Part 2A of the Act, and, in particular, s 6E.
The sentence imposed
The respondent pleaded guilty on 22 January 2021. The sentencing judge conducted a plea hearing on that date and on 29 March 2021. On 9 April 2021, the sentencing judge handed down detailed reasons[2] and sentenced the respondent as follows:
[2]DPP v Hum (a pseudonym) [2021] VCC 403 (‘Sentencing Reasons’).
Charge on Indictment
Offence
Maximum
Sentence
Cumulation
1
Produce child pornography (s 68(1) Crimes Act 1958)
10 years
7 days
—
2
Knowingly possess child abuse material (s 51G(1) Crimes Act)
10 years
2 years
2 months
3
Distribute child abuse material (s 51D(1) Crimes Act)
10 years
2 years
3 months
4
Produce child abuse material (s 51C(1) Crimes Act)
10 years
2 months
—
5
Produce child abuse material
10 years
18 months
3 months
6
Produce child abuse material
10 years
18 months
3 months
7
Sexual penetration of a child under 12 (s 49A(1) Crimes Act)
25 years
5 years, 9 months
Base
8
Sexual assault (child under 16) (s 49D(1) Crimes Act)
10 years
2 years, 6 months
6 months
9
Produce child abuse material
10 years
18 months
3 months
10
Produce child abuse material
10 years
8 months
2 months
11
Produce child abuse material
10 years
12 months
2 months
12
Produce child abuse material
10 years
8 months
1 month
13
Produce child abuse material
10 years
14 months
2 months
14
Sexual assault (child under 16)
10 years
2 years, 2 months
6 months
15
Produce child abuse material
10 years
12 months
2 months
16
Produce child abuse material
10 years
4 months
—
17
Possession of a drug of dependence (cannabis) (s 73(1) Drugs, Poisons and Controlled Substances Act 1981)
5 penalty units
Proven and dismissed
—
Related Summary Offences
4
Commit indictable offence on bail
3 months
1 month
(aggregate)
—
5
Contravene condition of bail
3 months
11
Contravene condition of bail
3 months
Total Effective Sentence:
8 years and 8 months’ imprisonment
Non-Parole Period:
5 years and 9 months
Pre-Sentence Detention
366 days
6AAA Statement:
10 years and 6 months’ imprisonment with a non-parole period of 8 years and 10 months.
Other relevant orders: Sex Offender Registration (life) Nature and circumstances of the offending
In the Sentencing Reasons the sentencing judge incorporated by reference a detailed prosecution summary on the plea, and she also set out some of the facts of the offending so that its seriousness could be understood.[3]
[3]Sentencing Reasons [6]–[65].
A brief summary of the circumstances of each of the relevant offences is set out on the table annexed to these reasons. The table also sets out other relevant detail in relation to the offences and the sentences. The table divides the offending into four categories, namely, sexual penetration and assault offences; production of child abuse material offences; possession and distribution of child abuse material offences; and other offences.
The first and most serious group of offences are the sexual penetration and assault offences, comprising charges 7, 8 and 14 on the indictment. The offences were committed by the respondent on two occasions, the first in May 2019 and the second in February 2020.
On 20 May 2019, the respondent’s ex-partner was staying at his house with her 21-month-old son. Whilst she was asleep, the respondent inserted the child’s penis into his mouth and sucked on it. He filmed himself doing so. The respondent then led the child to a nearby shower, where he filmed and photographed the two of them naked. The respondent then made the child touch the respondent’s erect penis and took a photo. This offending constituted charges 7 (sexual penetration of a child under 12) and 8 (sexual assault of a child under 16) on the indictment.
The respondent has a daughter. On 9 February 2020, he was at a birthday party attended by his then 3-year-old daughter and other young children. During the party, he took his daughter to a secluded room where he took photos and a video as he removed her underwear, tickled her, and parted her buttocks to expose her genital and anal region. This offending constituted charge 14 (sexual assault of a child under 16) on the indictment.
The second group of offences, production of child abuse material, comprise charges 1, 4, 5, 6, 9, 10, 11, 12, 13, 15 and 16 on the indictment. This offending included the filming and photographing already referred to in relation to the sexual penetration/assault offences, and it encompassed many other acts of production of such materials.
Some of this offending involved children known to the respondent, in addition to the incidents with his daughter and his ex-partner’s son to which we have already referred. On several occasions in 2019 and 2020, the respondent visited a friend and photographed her three children (aged 3 to 6) as they played naked on their lounge room floor. In February 2019, the respondent took photos of his daughter (then aged 2) whilst she was naked from the waist down, focussing on her vagina. On 9 February 2020, while at the birthday party previously referred to, the respondent took photographs and a video of his daughter and two other young children to whom he was related as they jumped on a bed and played on the floor. Many of the pictures focussed on their exposed underwear.
Other offending within this group of offences involved children unknown to the respondent. On two separate occasions in 2019, the respondent covertly photographed and filmed boys and girls (aged 1 to 6) getting dressed and showering in public change rooms. On three occasions in 2019, the respondent filmed a 4-year-old boy from the street outside the boy’s home; some of that footage showed the child’s penis and anal region. In 2020, the respondent took a number of photos of children (aged 3 to 7) playing in a shopping centre and sitting on public transport, focussing on their underwear. At various times, the respondent made recordings of videos of children sent to him via a social media platform.
The third group of offences, comprising charges 2 and 3 on the indictment, concern the respondent’s possession and distribution of child abuse material. In total, the respondent was found to be in possession of approximately 8,026 child abuse files, located across four electronic devices and on his Google Drive accounts. The material varied in nature and content, ranging between categories 1 to 7 of the Child Exploitation Tracking System (‘CETS’) C4P classification system. Most of the material was obtained by email exchange or internet download. Approximately 138 files had been produced by the respondent himself.
The CETS C4P classification system contains seven categories. In brief summary they are as follows:
1. Depictions of children with no sexual activity, but involving nudity, surreptitious images of underwear, sexually suggestive posing, explicit emphasis on genital areas;
2. Non-penetrative sexual activity between children or by a child alone;
3. Non-penetrative sexual activity between children and adults;
4. Penetrative sexual activity between children and adults;
5. Sadism/bestiality/physical abuse;
6. Animated or virtual; and
7. Non-illegal.
In the respondent’s case, there were many thousands of files falling within category 1, and there were many hundreds falling within each of categories 2, 3 and 4. There were just over 100 falling within category 5.
The respondent and other likeminded individuals exchanged or, to use an expression they themselves used, ‘traded’ child abuse material. The respondent exchanged material he had obtained from others and material he had produced or created himself. Amongst the material which he had created which he sent to, or ‘traded’ with, others were images of children in the change rooms, images of his friend’s children, images of the 4-year-old he had filmed from the street, and an image which he took of the children at the birthday party to which we have referred.
The final group of offences, comprising charge 17 on the indictment and the related summary charges 5, 11 and 14, are four less serious offences; being one offence of possession of cannabis, and three offences concerning his bail. Two of the bail offences are contravention of conditions, and one is the commission of an offence whilst on bail, being the possession of the cannabis.
Psychological evidence on the plea and the respondent’s personal background
The sentencing judge had before her on the plea a number of psychological reports.
The respondent relied upon a neuropsychological report dated 8 September 2020 by Mr Martin Jackson, and a psychological report dated 15 January 2021 by Mr Jeffrey Cummins. In addition, a neuropsychological report by Mr Warwick Brewer dated 20 March 2012, a Royal Children’s Hospital neuropsychological assessment by Dr Cressida MacCuspie (undated), and a psychological report of Dr Daniel Davis dated 4 April 2012, were relied upon before the sentencing judge.
The respondent did not seek to rely upon the principles in R v Verdins.[4]
[4](2007) 16 VR 269; [2007] VSCA 62 (‘Verdins’).
Given the circumstances of the offending, the respondent’s personal circumstances, and the psychological material before her, the sentencing judge ordered a report from Forensicare. That report was prepared by Dr Melissa Wood and is dated 10 March 2021.
Dr Wood set out the respondent’s personal background in detail. She did so, having reviewed the relevant documentary material, including the reports from Mr Jackson and Mr Cummins; having interviewed the respondent; and having also conducted an extensive interview with his foster mother. A summary of the respondent’s history, as set out by Dr Wood, is as follows.
The respondent was removed from the care of his parents as an infant after suffering a significant brain injury as a consequence of being shaken by his mother. Dr Wood reports that he had ‘over’ 20 foster placements prior to the age of 4. He then established ‘a stable foster relationship’ with his foster mother.
The respondent was in constant contact with child and adolescent mental health services throughout his childhood. He was admitted as an inpatient to the Austin Child Inpatient Unit for one month at age 8. He had a 1:1 teacher’s aide throughout his primary and secondary schooling. The respondent’s behaviour has been very troubled throughout his life, both at home and at school. There were aggressive and violent incidents at school and he was forbidden to attend school without his aide. At age 9, he was placed into a residential care unit for six months following an assault upon his foster mother. At age 16, he was placed in residential care after police were called following another aggressive incident involving his foster mother. He remained in residential care until age 18. He had a brief period in self-sustained housing before being evicted. He then lived with family and friends before obtaining stable accommodation at a disability supported residential service, where he was living until he was remanded in custody in April 2020.
The respondent has had only intermittent contact with his biological parents throughout his life.
The respondent has never had any formal employment and at the time of his arrest he was receiving a disability support pension. He was unable to manage his own financial affairs, which had been placed in the hands of State Trustees.
Since age 18, the respondent has consumed alcohol and cannabis regularly and has been intermittently using methylamphetamine.
Prior criminal history
As indicated, prior to the offences which are the subject of this appeal, the respondent did not have a significant history of sex offending. He was placed on 12 months’ probation for two offences of knowingly possessing child pornography in 2012, when he was 16 years of age, at the Melbourne Children’s Court. It was during that period of probation that he committed the offence of producing child pornography which was charge 1 on the indictment. He was then 17 years of age.
The respondent appeared in the Children’s Court on four further occasions. Apart from the two child pornography offences, his appearances were in relation to dishonesty offences, criminal damage and assaults.
He has appeared in the Magistrates’ Court on five occasions primarily for dishonesty offences, driving offences and offences involving damage to property. The last appearance was on 10 January 2018, when he was placed on a community correction order (‘CCO’) for 24 months for offences of unlicenced driving, careless driving, and refusing to undergo a breath test. As set out on the annexed table, a number of the offences which are the subject of this appeal were committed whilst on that CCO.
Psychological assessment
Notwithstanding his traumatic brain injury as a baby, Mr Jackson’s neuropsychological assessment indicated that the respondent is of average intelligence and does not have any impairment of cognition, attention, learning or memory (save in relation to visual memory). There were specific deficits in certain areas, including ‘organisation/integration’.
Dr Wood catalogued in detail the marked adversity to which the respondent had been subjected from a very early age. Her relevant conclusion was as follows:
As a result of this instability, he spent his childhood in a chronic trauma survival response mode, with no sense of stability, nurturance, or safety and security, and in a frequent state of extremely heightened emotional reactivity, with acute feelings of fear/mistrust in adults coupled with conflicting panic over potential further abandonment. In this state, he had very limited opportunity or capacity to gain the skills to learn healthy relationship boundaries or social/relational skills. These factors had a profound impact on his cognitive, social, and emotional development, and likely compounded the neurological impairment and delay caused by his (physical) traumatic brain injury; resulting in a disorganised attachment style and significant developmental delay in areas of cognition, emotional and behavioural regulation, socialisation and empathy development.
Dr Wood stated that the respondent has a ‘deviant sexual arousal and interest in pre-pubescent children, including toddlers’. He meets the criteria for a diagnosis of ‘non-exclusive paedophilia’. He presents with ‘definite Sexual Deviance (paedophilia, hebephilia, and potentially voyeurism)’.
Dr Wood said that there were indications suggesting that his prognosis might improve with age and emotional maturity and that there were also some protective factors. He had shown remorse and an eagerness to undergo sex offender treatment. He has personal and professional supports.
Dr Wood analysed the respondent’s risk of re-offending using the Static 99 assessment tool, and his case prioritisation using the RSVP assessment tool. On the Static 99, he fell into the ‘High-risk’ category. On the RSVP, his level of case prioritisation is ‘High’. Overall, Dr Wood expressed the opinion that the respondent’s ‘baseline risk of reoffending is high’.
Other material relied upon on the plea
Notwithstanding his very troubled past, the material before the sentencing judge confirmed and fortified Dr Wood’s observation that the respondent has personal and professional supports. This material included letters from the respondent’s foster mother, a friend of the respondent’s foster mother, and a counsellor.
The respondent has been undertaking courses whilst in custody and certificates of completion were relied upon on the plea.
Victim impact statements
Victim impact statements were filed on behalf of the father of the young victim of the offending in charges 7 and 8, from the grandmother of the respondent’s daughter who is a victim of the offending in charges 5, 14 and 15, and from the victims of the offending in charges 1 and 12.
The victim impact statements are testament to the potentially devastating impact that this kind of offending has on the child victims, and on their relatives and carers, who may blame themselves for not being more vigilant and harbour grave fears as to the long-term effects on the children.
Relevant provisions of the Act
The annexed table contains a column indicating whether the particular offence is a standard sentence offence. This is a reference to the provisions of ss 5A, 5B and 11A of the Act.
Section 5A establishes a ‘standard sentence scheme’. Where an Act that creates an offence (or prescribes a maximum penalty for an offence) specifies a period as the ‘standard sentence’ for that offence, then the period so specified ‘is the sentence for an offence that, taking into account only the objective factors affecting the relative seriousness of the offence, is in the middle of the range of seriousness’ (s 5A(1)). Objective factors affecting the relative seriousness of an offence are to be determined without reference to matters personal to the offender and wholly by reference to the nature of the offending (s 5A(3)).
Section 5B of the Act provides that, when sentencing an offender for a standard sentence offence, the court must take the standard sentence into account as ‘one of the factors relevant to sentencing’ (s 5B(2)(a)), and, in having regard to current sentencing practices must only have regard to sentences previously imposed for the offence as a standard sentence offence (s 5B(2)(b)).
The legislation expressly provides that these requirements do not limit the matters otherwise to be taken into account, and that it is not intended to affect the approach to sentencing known as ‘instinctive synthesis’ (s 5B(3)).
When sentencing an offender for a standard sentence offence, the court must state reasons for imposing the sentence and, as part of those reasons, refer to the standard sentence for the offence and explain how the sentence imposed relates to that standard sentence (ss 5B(4) and (5)).
Section 11A of the Act relevantly provides that, where the sentence imposed for a standard sentence offence is less than 20 years, the court must fix a non-parole period of at least 60 per cent of that term unless the court considers it is in the interest of justice not to do so.
Charge 7, the offence of sexual penetration of a child under 12, is a standard sentence offence. The specified standard sentence is 10 years’ imprisonment. This was the offence committed by the respondent when he inserted the 21-month-old’s penis into his mouth whilst his ex-partner slept nearby, as previously described.
Charge 8 is also a standard sentence offence. The standard sentence specified is 4 years’ imprisonment. This was the other offence committed against the respondent’s ex-partner’s 21-month-old son in the shower, as previously described.
Finally, charge 14, the offence of sexual assault committed against the respondent’s daughter at the birthday party, as previously described, is also a standard sentence offence for which a standard sentence of 4 years’ imprisonment is specified.
Part 2A of the Act sets out provisions dealing with a defined group of offenders called ‘serious offenders’.
The respondent is a ‘serious offender’ on all of the charges on the indictment after charges 1 and 2. There is a column on the annexed table indicating the offences in relation to which the respondent is a ‘serious offender’.
Pursuant to s 6E of the Act, because he was a ‘serious offender’, every term of imprisonment imposed by the court after the sentence on charges 1 and 2, was required to be served cumulatively on any other sentence imposed, unless otherwise directed by the court.
Pursuant to s 6D of the Act, because he was a ‘serious offender’, when sentencing the respondent the sentencing judge was required to regard protection of the community as the principal purpose for which sentence was to be imposed.
The Sentencing Reasons
The sentencing judge began the Sentencing Reasons by referring broadly to the charges, setting out the applicable maximum sentences, and referring to the fact that certain of the charges were subject to the standard sentence scheme.[5]
[5]Sentencing Reasons [1]–[4].
The sentencing judge then set out the circumstances of the offending, as previously set out.[6]
[6]Ibid [6]–[65].
Next, the sentencing judge described the circumstances of the respondent’s two arrests, on 11 March 2020 and 10 April 2020.[7] The respondent was cooperative in providing police with usernames and passwords, but he did not comply with certain bail conditions imposed after his arrest in March 2020.
[7]Ibid [66]–[73].
The sentencing judge set out the respondent’s criminal history.[8] Her relevant conclusion was as follows:
Apart from the matter in early 2012 and breaches of court orders, [the history] has little direct relevance to the matters before this court, which in themselves span a not insignificant period.[9]
[8]Ibid [74]–[84].
[9]Ibid [84].
The sentencing judge referred to the fact that the respondent had pleaded guilty at the committal mention stage, and to the fact that the plea had additional utility given the circumstances of the COVID-19 pandemic.[10]
[10]Ibid [85]–[88].
Her Honour set out the respondent’s personal circumstances, and the psychological material before her, in detail.[11] She referred to her decision to order an assessment by Forensicare and set out the relevant matters dealt with in Dr Wood’s report. In substance, she accepted and adopted Dr Wood’s conclusions, although a suggestion by Dr Wood that moral culpability was reduced was accepted by the sentencing judge only ‘to some extent’.[12]
[11]Ibid [89]–[123].
[12]Ibid [122]–[123].
Next, the sentencing judge referred to the respondent’s time on remand, and to the fact that that period had been particularly burdensome given the response of the authorities to the COVID-19 pandemic.[13]
[13]Ibid [124]–[130].
The sentencing judge dealt with the respondent’s prospects of rehabilitation. She observed that, whilst he had a limited relevant criminal history, he had diagnoses of both paedophilia and hebephilia, and the risk assessments undertaken had raised obvious concerns. She concluded that, whilst it could not be said that the respondent’s prospects for rehabilitation were ‘without hope’, they should still be seen as ‘somewhat guarded’.[14]
[14]Ibid [131]–[133].
The sentencing judge dealt specifically with the child pornography offences,[15] and, in that context, she took guidance from this Court’s decision in Director of Public Prosecutions (Cth) v Garside.[16]
[15]Ibid [135]–[136].
[16](2016) 50 VR 800; [2016] VSCA 74 (‘Garside’).
Her Honour accepted a submission made by the prosecution that the respondent’s offending had been ‘persistent, devious and organised’. Whilst she accepted that some reduction of culpability was appropriate for the reasons set out by Dr Wood, she observed that general deterrence ‘looms large’, and that specific deterrence also had ‘an essential role to play’, as did protection of the community.[17]
[17]Sentencing Reasons [137]–[141].
The sentencing judge addressed the standard sentencing scheme[18] and cited and relied upon this Court’s decision in McPherson v The Queen.[19] She set out the relevant features of the legislative scheme. In relation to cases to which she had been referred as being potentially comparable, she observed that they dealt with widely varying circumstances.
[18]Ibid [142]–[152].
[19][2021] VSCA 53 (‘McPherson’).
The sentencing judge’s relevant conclusion on the application of the standard sentence provisions to the offences before her was as follows:
For charges 7, 8 and 14, I have had regard to the standard sentencing scheme. The sentence that I intend to impose for each of those charges will be lower than the standard sentence prescribed in consideration of s 5(2) of the Act, the standard sentence, as well as your pleas of guilty, your personal circumstances, the expert reports and other mitigatory matters to which I have referred.[20]
[20]Sentencing Reasons [152].
The sentencing judge referred to the totality principle, and she accepted a submission made on behalf of the respondent that ‘care should be taken to avoid’ what would be a ‘crushing sentence’.[21]
[21]Ibid [154].
The sentencing judge referred to the ‘serious offender’ provisions, and specifically to the presumption of cumulation for all of the offences after charge 2, and to the requirement that she have regard to protection of the community as the principal purpose for which sentence is imposed.[22]
[22]Ibid [155]–[156].
Immediately before imposing sentence, the judge referred again to the principles of totality and proportionality which she said had ‘particular relevance’.[23]
[23]Ibid [159].
Appellant Director’s submissions
The appellant’s written case addressed the circumstances of the offending before turning specifically to ground 1 (manifest inadequacy).
It was submitted that the offending was ‘prolific’ and ‘depraved’. The sentences imposed, other than the sentence on charge 1, were said to be wholly outside the range of sentences reasonably open in all the circumstances.
Particular attention was given to the sentences on charges 7, 8 and 14, which were all standard sentence offences.
As to the sentence on charge 7 (5 years 9 months’ imprisonment) it was submitted that this offence ought to have been treated as an ‘upper-end’ example of the offence. Yet, it was submitted, the sentence fell ‘more than 40 per cent below the relevant guidepost’.
A similar submission was made in relation to the sentences on charge 8 (2 years 6 months’ imprisonment) and charge 14 (2 years 2 months’ imprisonment). It was submitted that the sentence on charge 8 was slightly less than 40 per cent below the standard sentence and that the sentence on charge 14 was just over 55 per cent below the standard sentence.
The appellant accepted that the standard sentence was but one factor to be taken into account in the sentencing exercise, but it was submitted that what had occurred here was a ‘major departure’ from the relevant standard sentence which was ‘unexplained’. It was submitted that denunciation, and general and specific deterrence, called for substantially higher sentences.
The written case on behalf of the appellant submitted that the respondent’s offending was ‘replete’ with ‘grave breaches of trust’. It was said that with the exception of one offence, the children involved were aged between 3 months and 8 years.[24] It was submitted that the sentences imposed revealed that the judge must have given insufficient weight to the magnitude of the breaches of trust involved in the respondent’s offending.
[24]The vast bulk of the offending does involve very young children but there are two offences, not one, against teenagers (charges 9 and 12).
As the respondent was a ‘serious offender’ on the charges after charge 2, the judge was required to regard community protection as the principal purpose for sentence. The appellant submitted that the sentences imposed indicated that community protection had not been given sufficient weight.
In the written case, the appellant submitted that the principle of totality had been given too much emphasis. The presumption of concurrency was reversed on all the charges save for charges 1 and 2, and yet, it was submitted, the orders for cumulation were significantly less than would have been expected if the presumption had not been displaced.
Whilst the sentencing judge had referred to the decision in Garside, it was submitted on behalf of the appellant that the sentences imposed did not reflect the seriousness of the child pornography offences as explained in that authority.
The appellant submitted that ‘excessive weight’ had been given to matters personal to the respondent.
It was submitted that the respondent is a diagnosed paedophile and hebephile with limited insight into his offending, that the principles in Verdins were neither relied upon nor found, that the offending in charges 2 to 11 had occurred whilst the respondent was under a CCO, and that there had been a ‘level of sophistication’ to the respondent’s offending.
In relation to ground 2 (failure to give effect to s 6E of the Act), it was submitted that what had occurred was precisely what the High Court in McL v The Queen[25] had warned against. The orders for cumulation had been made as if ‘s 6E … was not on the statute book.’[26]
[25](2000) 203 CLR 452, 476–7 [76]; [2000] HCA 46 (‘McL’).
[26]Ibid 477 [76] (McHugh, Gummow and Hayne JJ).
In oral submissions, counsel for the appellant said that the ‘main point’ of the appeal was founded on the proposition that the sentence for the sexual penetration offence (charge 7) was manifestly inadequate, that the cumulation was inadequate and did not give effect to s 6E of the Act, and that consequently the total effective sentence was manifestly inadequate.
It was acknowledged that the sentencing task facing the judge was a complex one, given the 17 count indictment with some overlapping in the offences. It was submitted that the only significant factor in mitigation was the plea of guilty, which had additional utility given the COVID-19 circumstances.
In relation to the issue of deprivation, the appellant submitted that the situation which had been produced by the deprivation was, according to Dr Wood, one in which the respondent is unable to regulate his actions. The effects of his background act as a ‘brake’ on his ability to control himself. It was submitted that in those circumstances, whilst the deprived background might be a mitigating circumstance, that circumstance was ‘cancelled out’ by the significant risk to the community represented by the respondent.
In relation to comparable sentences, counsel for the appellant accepted that the Court’s ability to have regard to other sentences imposed on offences subject to the standard sentence regime was constrained by s 5B(2)(b) of the Act, and that very few such cases existed. Reference was made to the Court’s judgment in Tobin (a pseudonym) v The Queen.[27]
[27][2021] VSCA 180 (‘Tobin’).
As an alternative submission, it was put that if the sentence on the sexual penetration offence (charge 7) was seen to be ‘only just’ within the range of available sentences, the orders for cumulation had created a position where the effective additional sentence for all of the other offending was less than 3 years. It was submitted that this revealed the existence of error in relation to the cumulation.
Counsel for the appellant submitted that there were two kinds of offending committed, what might be described as ‘contact’ offending and offending involving the production and distribution of child abuse material. It was submitted that each type of offending calls for a sentence which reflects the need for general deterrence.
When asked about the submission made in the written case that the sexual penetration offence (charge 7) was at the ‘upper end’ of offences of that kind, counsel for the appellant submitted that it was an ‘upper end’ offence because of the breach of trust involved, the proximity of the victim’s mother, the age of the victim, and the fact that the respondent was intoxicated at the time.
It was submitted on behalf of the appellant that there was no basis for the exercise of the Court’s residual discretion to dismiss a Director’s appeal in this case.
Respondent’s submissions
In addressing ground 1 (manifest inadequacy) the respondent’s written case relied upon authorities concerning Director’s appeals as to sentence, and, in particular, upon Director of Public Prosecutions v Karazisis,[28] Director of Public Prosecutions v Macarthur[29] and Director of Public Prosecutions v Zhuang.[30]
[28](2010) 31 VR 634; [2010] VSCA 350 (‘Karazisis’).
[29][2019] VSCA 71.
[30](2015) 250 A Crim R 282; [2015] VSCA 96 (‘Zhuang’).
It was submitted that there were powerful factors in mitigation present in this case, of the kind dealt with by the High Court in Bugmy v The Queen.[31] In that context, reference was made to decisions of this Court in Walker v The Queen,[32] Marrah v The Queen[33] and Gencev v The Queen.[34]
[31](2013) 249 CLR 571; [2013] HCA 37 (‘Bugmy’).
[32][2019] VSCA 137.
[33][2014] VSCA 119.
[34][2021] VSCA 188.
The extraordinarily traumatic and deprived childhood to which the respondent had been subjected was said to be relevant to sentence both because it reduced his moral culpability and because it contributed to, and explained, his offending. It was submitted that there was no evidence that ‘excessive weight’ had been given to these factors by the sentencing judge.
It was submitted that the respondent’s guilty plea had significant utilitarian value, and was of ‘further value’ given the COVID-19 pandemic, as explained by this Court in Worboyes v The Queen.[35]
[35][2021] VSCA 169 (‘Worboyes’).
In relation to community protection, the respondent submitted that this consideration strongly favoured clemency. It was submitted that ‘no evidence or experience shows’ the community is better protected by imposing additional months or years onto a finite sentence from which the respondent must eventually be released. The respondent is still relatively young. By the time of release he will have completed a sex offender treatment program. There was reason for cautious optimism in relation to rehabilitation. The written case asked rhetorically: ‘Does a longer gaol term reduce the risk to the public he will meet in the future?’
It was submitted that the standard sentencing scheme had not been ignored or misused. Her Honour had ‘engaged with’ the process and explained how she had proposed to proceed.
The respondent submitted that the sentencing judge had not underestimated the vulnerability of the victims or the breach of trust involved in the offending, and that the offences in charges 7, 8 and 14 were not ‘upper end’ examples of those offences.
Generally, it was submitted that the appellant had identified no error on the part of the sentencing judge.
In relation to ground 2 (presumption of cumulation: s 6E of the Act), it was submitted that her Honour did not commit the error alleged. She discussed the application of totality and was fully aware of what the statute required. She was faced with the task of sentencing on a ’17 count indictment with ill matched, overlapping charges, some rolled up, some overlapping in time or subject matter, some more serious than others’.
If it were determined that an error had been made, it was submitted on behalf of the respondent that this was a powerful case for the exercise of the Court’s residual discretion not to intervene. Relying upon this Court’s decisions in Director of Public Prosecutions v Bright[36] and Karazisis, it was submitted that something more than manifest inadequacy needed to be shown before this Court should intervene.
[36](2006) 163 A Crim R 538; [2006] VSCA 147 (‘Bright’).
In the event of re-sentence, it was submitted that all of the factors which her Honour had taken into account ought to be considered and that the sentencing judge had sought to avoid a ‘crushing’ sentence for good reasons.
In oral submissions counsel for the respondent initially addressed the proposition that the sexual penetration offence (charge 7) was at the ‘upper end’ of offences of that kind. It was submitted that the mode of penetration, where the victim was not penetrated, and the short duration of the offending meant that this offending, absent the aggravating features which were present, would have been at the lower end of offences of this type. It was accepted that the features relied upon by the appellant, being breach of trust, intoxication, age of the child, and proximity of the mother, meant that this was properly treated as an offence in the lower to mid-range.
It was submitted that the judge would have been well justified in imposing a sentence of less than 5 years 9 months’ imprisonment on this offence.
Counsel for the respondent accepted that the court was constrained in considering comparable cases, given that this is a standard sentence scheme offence, but relied upon this Court’s decision in McPherson as fortifying the submission that the offending here was in the mid-range or below.
Counsel for the respondent submitted that the Director’s appeal ‘stands or falls’ on whether the sentence on the sexual penetration offence (charge 7) has been shown to be manifestly inadequate.
Addressing the sexual penetration offence, counsel for the respondent submitted that there is no ‘presumption’ of harm and that in this particular case there was no reason why the victim would ever necessarily know what had happened to him.
In relation to the sexual assault offence (count 14), it was submitted that this was offending at the ‘bottom end’ of this very serious category of offence.
Counsel for the respondent submitted that there was much overlap in the offences charged and that there was a danger of ‘double counting’. It was submitted that during the plea hearing the prosecutor was particularly alive to the potential for this problem and made submissions to the sentencing judge which were, the respondent submitted, entirely in accordance with the sentencing process which the sentencing judge then undertook.
When asked about the relevance of s 6D of the Act to the sentence in this case, counsel for the respondent submitted that the requirement that community protection be the principal purpose of sentence did not mean that a longer sentence was to be imposed. It could mean that a lesser sentence ought be imposed.
In relation to the application of s 6E of the Act, the respondent submitted that the sentencing judge was clearly aware of her obligation to give effect to that provision and that the way in which she gave effect to it reflected the submission made to her by the prosecutor on the plea.
It was the position taken by the prosecutor on the plea, as referred to, that was submitted to be the basis for the exercise of the residual discretion.
In relation to the matters in mitigation, it was submitted that, in addition to the guilty plea, the evidence before the sentencing judge had revealed that there was room for genuine optimism in relation to the respondent’s rehabilitation, notwithstanding that the risk of reoffending remained high.
In reply, counsel for the Director submitted that the submissions concerning risk of harm to the 21-month-old were misconceived, and that such offending was inherently ‘extremely dangerous’ in terms of the risk of harm. It was submitted that the risk of ‘double counting’ could not explain the overly generous concurrency. The prosecution’s written opening on the plea had referred the judge to the relevant legislative provisions and the judge had not been led into error by anything the prosecutor had submitted. The sentencing judge expressly referred to the obligation in s 6E of the Act in the Sentencing Reasons. It was contended that the submission on behalf of the respondent concerning community protection could not be correct.
Relevant legal principles on the appeal
The legal principles which are particularly relevant are as follows:
(a) The ground of manifest inadequacy is a stringent one, difficult to make good. The sentence must be wholly outside the range of sentencing options available, such that it can be concluded that it was not reasonably open to the sentencing judge to come to the conclusions reached if proper weight had been given to all the relevant factors.[37]
[37]Karazisis (2010) 31 VR 634, 662–3 [127]–[128] (Ashley, Redlich and Weinberg JJA); [2010] VSCA 350; Zhuang (2015) 250 A Crim R 282, 298 [44]–[45] (Redlich, Priest and Beach JJA); [2015] VSCA 96; Bright (2006) 163 A Crim R 538, 542–3 [10] (Redlich JA); [2006] VSCA 147.
(b) The Court retains a residual discretion to dismiss a Director’s appeal.[38]
[38]Karazisis (2010) 31 VR 634, 661 [119] (Ashley, Redlich and Weinberg JJA); [2010] VSCA 350; Garside (2016) 50 VR 800, 822 [75] (Redlich and Beach JJA); [2016] VSCA 74.
(c) Significant deprivation and abuse in childhood is relevant to sentence in that it may reduce moral culpability. It may mean an offender is less culpable than a person whose formative years were not marred in that way. The consequences of such deprivation and abuse may also be relevant and may reduce moral culpability because they contribute to, and explain, the offending behaviour. However, an inability to control offending behaviour may increase the importance of community protection.[39]
[39]Bugmy (2013) 249 CLR 571, 594–5 [40]–[44] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ); [2013] HCA 37; DPP v Herrmann [2021] VSCA 160, [36]–[44] (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA).
(d) The ‘serious offender’ provisions of the Act are intended to have more than a formal effect. Where those provisions apply, the scope for applying the totality principle must be more limited than in other cases. The evident object of the legislation is to make sentences to which it applies operate cumulatively rather than concurrently. That object would be compromised or even defeated if the ordinary application of the totality principle was a sufficient ground to enliven the discretion to otherwise direct. Sentencing judges need to be astute not to undermine the legislative policy of the relevant provisions by applying the totality principle as if s 6E was not on the statute book.[40]
[40]McL (2000) 203 CLR 452, 476–7 [76] (McHugh, Gummow and Hayne JJ); [2000] HCA 46.
(e) Under the standard sentence scheme the specified standard sentences are legislative guideposts in the same way as maximum sentences. Just as judges have always had in mind a notion of the ‘worst possible case’, so they must now have in mind a notion of an offence ‘in the middle of the range of seriousness’ where a specified standard sentence applies. Notwithstanding these considerations, the utility of the concept is lessened in the case of the standard sentence because of the narrowness of the ‘objective factors’ and because of the imprecision of the concept of ‘a hypothesised mid-range offence’.[41]
(f) The factors relevant to sentence in relation to child abuse material offences were set out by the New South Wales Court of Criminal Appeal in R v De Leeuw[42] and were adopted by this Court in Garside.[43]
(g) All other things being equal, a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts were not afflicted by the pandemic’s effect.[44]
[41]Brown v The Queen (2019) 59 VR 462, 479–80 [55]–[57] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA); [2019] VSCA 286 (‘Brown’).
[42][2015] NSWCCA 183, [72] (Johnson J).
[43]Garside (2016) 50 VR 800, 810 [25] (Redlich and Beach JJA); [2016] VSCA 74.
[44]Worboyes [2021] VSCA 169, [39] (Priest, Kaye and T Forrest JJA).
Current sentencing practice
Sexual crimes against children are abhorrent. Their abhorrence is such that there is inherent difficulty in determining an appropriate term of imprisonment. It is because crimes of this kind are so abhorrent that guidance from sentences imposed in comparable cases can be important.[45] Comparable cases must not, however, be treated as fixing quantitative boundaries; they are one factor, and not a controlling factor, to be taken into account.[46]
[45]Reid (a pseudonym) v The Queen (2014) 42 VR 295, 296–7 (Maxwell P and Whelan JA); [2014] VSCA 145.
[46]DPP v Dalgleish (a pseudonym) (2017) 262 CLR 428, 450 [68] (Kiefel CJ, Bell and Keane JJ), 453 [81] (Gageler and Gordon JJ); [2017] HCA 41.
The consideration of comparable cases in relation to charges 7, 8 and 14, being the sexual penetration and assault charges, is constrained by s 5B(2)(b) of the Act. Under that provision, regard must be had only to sentences previously imposed for the offence as a standard sentence offence.
In relation to the offence of sexual penetration of a child under 12 (charge 7), counsel referred to this Court’s decisions in Tobin and in McPherson.[47]
[47]There are decisions of the Court of Appeal concerning sexual penetration of a child under 16, but no other decisions of the Court of Appeal concerning sexual penetration of a child under 12 were identified.
In McPherson, this Court reduced a sentence of 9 years 6 months’ imprisonment with a non-parole period of 6 years, to a sentence of 6 years 6 months’ imprisonment with a non-parole period of 4 years. The relevant offence was the digital penetration of a girl aged 8 who was the daughter of a close family friend of the offender. The offender was 32 years old at the time of sentence. He had had a difficult childhood and had been the victim of childhood sexual assault. He suffered from a variety of diagnosed mental health conditions. The offending was described by the Court as ‘an isolated example of relatively fleeting digital penetration’. The Court referred to the offender’s ‘traumatic and disadvantaged past’ and his ‘associated mental health problems’. A causal connection between the offender’s mental health problems and the offending had not been established. It had been established, however, that a prison sentence would weigh more heavily on him because of his disorders and that there was a serious risk of imprisonment having a significant adverse effect on his mental health. This Court held that the sentence imposed had not made any ‘realistic allowance’ for the impact of imprisonment on the offender’s ill health.[48] These are considerations addressed in Verdins. The offender had no prior convictions for sex offending. The offender had been convicted after a trial and accordingly could not call in aid the mitigatory effects of a guilty plea.
[48]McPherson [2021] VSCA 53, [28]–[29] (Priest and T Forrest JJA).
Tobin concerned more serious offending by a 20-year-old offender against his 3-year-old step-niece. The offender in that case had also had a difficult childhood, had been the victim of childhood family violence, and suffered from mental health conditions. The offending occurred whilst the offender was babysitting the victim. The conduct was not dissimilar to that involved in charge 7 here. The offender digitally penetrated the victim as well as rubbing and licking her genital area. This Court described the offending in the following terms:
In summary, then, the judge correctly concluded that, objectively assessed, the objective seriousness of the applicant’s offending, and his subjective culpability for it, were both particularly high. In essence, the offences, for which the applicant stood for sentence, involved an appalling degree of depravity and perversion.[49]
[49]Tobin [2021] VSCA 180, [79].
In Tobin, this Court rejected contentions of specific error on appeal and also rejected a contention that a sentence of 8 years’ imprisonment on the sexual penetration charge was manifestly excessive. This Court observed:
The abhorrent, perverted and disgusting acts that he committed on his 3-year-old step-niece were thoroughly depraved, and in committing them, the applicant plumbed the depths of moral degradation.[50]
[50]Ibid [86].
The offender in that case was able to call in aid the mitigatory effects of a guilty plea, as well as youth. The Court nevertheless held that the sentences imposed — 8 years’ imprisonment for the sexual penetration and 3 years’ imprisonment with 1 year cumulated on a sexual assault offence in the same incident, resulting in a total effective sentence of 9 years’ imprisonment with a non-parole period of 5 years 6 months — was not only not manifestly excessive, but ‘appropriately within the range of sentences available to the primary judge’.[51]
[51]Ibid [89].
The only other decisions of this Court concerning a charge of sexual assault of a child under 16, where the sentence imposed was imposed under the standard sentence regime, which have been identified, are Hinch (a pseudonym) v The Queen[52] and Lugo (a pseudonym) v The Queen.[53]
[52][2021] VSCA 214 (‘Hinch’).
[53][2020] VSCA 75 (‘Lugo’).
In Hinch, sentences of 18 months’ imprisonment on each of two sexual assault charges were imposed by this Court after a successful conviction appeal. The victim in that case was a 9-year-old girl who was the daughter of the offender’s partner. There were two separate incidents involving touching of the victim’s buttock and genital region without penetration.
In Lugo, the Court upheld, relevantly, a sentence 4 years 4 months’ imprisonment for a standard sentence sexual assault offence. The victim there was the 11-year-old daughter of the offender. The relevant offending related to an incident where the offender entered the victim’s bedroom under the guise of saying ‘goodnight’ and, over her protest, kissed the victim on her lips and breast area and touched her vagina. The Court rejected a number of allegations of specific error, including that the judge had misapplied the standard sentencing provisions of the Act. It held that each of the individual sentences, including the sentence imposed for the sexual assault charge, were within range and not manifestly excessive.
A review of decisions of this Court concerning sentences for possession and distribution of child abuse material reveals a wide range of sentencing outcomes.[54] More commonly, this Court’s decisions concerning sentences for offences of production, possession and/or distribution of child abuse material arise in the context of substantially higher sentences for related sexual offending. In that context, the additional sentence imposed in relation to the child abuse material varies widely from a few months to 3 years; and, on one occasion, the production of child pornography offence was the base sentence of 4 years.[55]
[54]Reference is made to Chenhall v The Queen [2021] VSCA 175; Hawke v The Queen [2019] VSCA 276; Campbell v The Queen [2019] VSCA 158; DPP v Watson (2016) 259 A Crim R 327; [2016] VSCA 73; Burrell v The Queen [2013] VSCA 146.
[55]Reference is made to DPP v Howard(a pseudonym) [2021] VSCA 298; Craft (a pseudonym) v The Queen [2021] VSCA 66; DPP v Spottiswood [2021] VSCA 146; Carter v The Queen [2020] VSCA 13; DPP v Watton [2019] VSCA 10 (this is the case where the base sentence of 4 years is for production of child pornography); Finley v The Queen [2018] VSCA 202; DPP v Tewksbury(a pseudonym) [2018] VSCA 38; Sharman (a pseudonym) v The Queen [2017] VSCA 241; Hladik v The Queen [2015] VSCA 149; Soo v The Queen [2014] VSCA 304; DPP v Chatterton [2014] VSCA 1.
Analysis
The way in which the Director’s appeal was eventually put was that the sentence on the sexual penetration charge (charge 7) was manifestly inadequate, and that the orders made in relation to concurrency and cumulation constituted a sentencing error in that they produced a manifestly inadequate total effective sentence, and revealed that the judge had not applied s 6E of the Act. In the alternative it was submitted that, if the sentence on the sexual penetration offence (charge 7) was not manifestly inadequate, it was ‘only just’ adequate, and the orders concerning concurrency and cumulation had still produced a total effective sentence that was manifestly inadequate and revealed an error by way of failure to apply s 6E of the Act.
In our opinion, the Director’s alternative submission on the appeal should be accepted. The sentence on the sexual penetration offence (charge 7: 5 years 9 months’ imprisonment) is not manifestly inadequate, but it is lenient, and the orders concerning cumulation and concurrency produce a total effective sentence which is manifestly inadequate and which reveals an error in the failure to give proper effect to s 6E of the Act.
Addressing the sentence on charge 7 (sexual penetration of a child under 12), the respondent’s conduct constitutes very serious offending. Categorisation into lower, mid-level or upper range, is not overly helpful or significant. We accept that the offending was not at the upper level, only in the sense that other examples of this kind of offending, which are significantly more serious, can be found. In our view, it is certainly not at the lower level. The child was very young. The offending took place in the presence of the child’s sleeping mother. This Court’s description of the offending in Tobin, as quoted above, could be equally well applied here.
In addition to the seriousness of the offence itself, the offence was committed whilst the respondent was on a CCO. He has a high risk of reoffending, and the Act requires community protection to be the principal purpose of the sentence. General deterrence, specific deterrence and denunciation are obviously very important. A standard sentence of 10 years’ imprisonment applies to this offence.
On the other hand, the offender is relatively young with few relevant prior convictions. He pleaded guilty in the circumstances of the COVID-19 pandemic. He had a deprived, indeed tragic, early childhood and the mitigating effects of that circumstance as described by the High Court in Bugmy are applicable. The evidence reveals he has shown remorse and is eager to undertake a sexual offender treatment program. There are some protective factors.
We do not accept the proposition put by counsel for the appellant that the risk which the respondent represents ‘cancels out’ the mitigatory effect of his deprived childhood. Each of these considerations remain relevant factors to be taken into account.
The standard sentence of 10 years’ imprisonment is an important consideration, but it is subject to the limitations explained by this Court in Brown.
Taking all of these matters into account, we are unpersuaded that the sentence of 5 years 9 months’ imprisonment is manifestly inadequate. We do consider the sentence to be lenient.
In oral submissions, counsel for the Director did not press submissions directed to the specific sentences imposed on the offences other than charge 7, but rather focussed upon the orders concerning concurrency and cumulation. In our view, he was correct to adopt this course. The sentences on the offences other than charge 7 are, in our opinion, also lenient, but they are not manifestly inadequate for substantially the same reasons as we have given in relation to charge 7.
The orders concerning cumulation and concurrency, however, particularly given the operation of s 6E of the Act which reverses the presumption of concurrency for all of the sentences after charge 2, have produced a total effective sentence (and a non-parole period) which is manifestly inadequate and which reveals a failure to give effect to s 6E of the Act.
Six months cumulation was ordered on each of the two sexual assault offences (charges 8 and 14). Leaving to one side the fact that what the Act requires is a direction as to concurrency rather than the otherwise standard order as to cumulation which is the approach the judge adopted, a total of 12 months cumulation on these two charges is manifestly inadequate. The cumulation of 6 months on charge 8 which occurred during essentially the same incident as charge 7 might be justified, but 6 months cumulation for the sexual assault of the respondent’s 3-year-old daughter (charge 14) is manifestly inadequate, and is inconsistent with the proper application of s 6E of the Act, in our opinion.
Most of the cumulation ordered on the production of child pornography offences was also manifestly inadequate in our view. It amounted in total to an additional 18 months’ imprisonment. Some of the orders might be considered appropriate, being, the cumulation ordered on charge 9 (concerning the respondent’s girlfriend), charge 12 (the Snapchat video of the 14-year-old), charge 13 (the photographs of the fully clothed children in public areas) and charge 16 (another Snapchat video). But the cumulation ordered in relation to the photos and videos of his daughter (charge 5), the 21-month-old boy (charge 6), the 4-year-old boy filmed from the street (charge 10), the children in the change rooms (charge 11), and the children at the birthday party (charge 15), were quite inadequate. In our view, orders ought to have been made having the effect of cumulating periods of double, and in some cases triple, those ordered. An order as to concurrency effectively producing some cumulation (rather than none) ought to have been ordered on the sentence on charge 4 (photos of the friend’s children).
The cumulation ordered on the possession and distribution of child abuse material offences — 2 months on the possession charge and 3 months on the distribution charge — is also manifestly inadequate in our opinion. It fails to reflect the very serious nature of this kind of offending. Notwithstanding that the presumption of concurrency is not reversed in relation to charge 2, we consider that the cumulation ordered on that charge ought to have been substantially higher than 2 months. In our view, 6 months ought to have been ordered. On the distribution charge, a sentence of imprisonment of 2 years was imposed with an order for 3 months cumulation. In our opinion, a direction as to concurrency limited to 12 months, thereby effectively cumulating 12 months, ought to have been imposed.
As already stated, we regard the individual sentences themselves as lenient, but not manifestly inadequate. They are not necessarily the sentences we would have imposed. In our opinion, the total effective sentence and the non-parole period are manifestly inadequate. This is a consequence of the manifest inadequacy of the cumulation. Given the view we have taken of the cumulation, the manifestly inadequate total effective sentence and non-parole period may be properly corrected by addressing the manifest inadequacy of the cumulation.
In our opinion, this is not a matter where the residual discretion ought to be invoked. The prosecutor on the plea alerted the judge to the provisions of s 6E of the Act. The judge was fully aware of the legislative requirements and expressly referred to them in the Sentencing Reasons. It cannot be said that any submission of the prosecutor on the plea led the judge into error on the issue of concurrency and cumulation.
For these reasons, in our opinion, the appeal should be allowed on ground 1, insofar as it concerns the cumulation, the total effective sentence and the non-parole period, and on ground 2.
We will re-sentence the respondent as follows, directing cumulation on charge 2, and concurrency, so as to produce effective cumulation on charges 3 onwards as set out in the table below:
Charge
Offence
Sentence
Cumulation as ordered
Effective cumulation on re-sentence
1 Produce child pornography (when aged 17) 7 days — — 2 Knowingly possess child abuse material 2 years 2 months 6 months 3 Distribute child abuse material 2 years 3 months 12 months 4 Produce child abuse material (friend’s children on floor) 2 months — 1 month 5 Produce child abuse material (daughter) 18 months 3 months 6 months 6 Produce child abuse material (21-month- old) 18 months 3 months 6 months 7 Sexual penetration of a child under 12 5 years, 9 months Base Base 8 Sexual assault 2 years, 6 months 6 months 6 months 9 Produce child abuse material (15-year-old girlfriend) 18 months 3 months 3 months 10 Produce child abuse material (4-year-old) 8 months 2 months 4 months 11 Produce child abuse material (change rooms) 12 months 2 months 6 months 12 Produce child abuse material (14-year-old Snapchat) 8 months 1 month 1 month 13 Produce child abuse material (shopping centre) 14 months 2 months 2 months 14 Sexual assault 2 years, 2 months 6 months 12 months 15 Produce child abuse material (birthday party) 12 months 2 months 6 months 16 Produce child abuse material (Snapchat) 4 months — — 17 Possession of a drug of dependence (cannabis) Proven and dismissed — — Related Summary Offences
4 Commit indictable offence on bail 1 month
(aggregate)
— — 5 Contravene condition of bail 11 Contravene condition of bail Total Effective Sentence 11 years 8 months’ imprisonment Non-Parole Period: 7 years 3 months 6AAA Statement: 14 years 8 months
Non-Parole Period: 10 years 3 months
---
| Sexual penetration / assault offences | |||||||||||
| Date(s) of offending | Charge no | Offence | Description of offending/charge | On CCO? | On Probation? | SSO?[56] | Standard sentence offence? | Other notes | Max sentence | Sentence imposed | Cumulation |
| 20.5.2019 | 7 | Sexual penetration of child under 12 | The respondent’s ex-partner, Ms Hayes,[57] slept at the respondent’s house with her 21-month-old son. In the morning, while Ms Hayes was still asleep, the respondent inserted the boy’s penis into his mouth and sucked his penis. He filmed this act on his mobile phone (see charge 6, below). | ✔ | ✖ | ✔ | ✔ (10 y) | Category 1 offence, requiring mandatory term of imprisonment: s 5(2G) of the Act. Victim impact statement (VIS) received from victim’s father. This charge is linked to charges 6 and 8. | 25 y | 5 y, 9 m (69 m) | Base |
| 20.5.2019 | 8 | Sexual assault (child under 16) | Immediately following the events the subject of charge 7, the respondent led Ms Hayes’ son to a shower, where he filmed and photographed the two of them naked. He then made the boy touch the respondent’s erect penis as he took a photo on his mobile phone (see charge 6, below). | ✔ | ✖ | ✔ | ✔ | VIS received from victim’s father. This charge is linked to charges 6 and 7. | 10 y | 2 y, 6 m (30 m) | 6 m |
| 9.2.2020 | 14 | Sexual assault (child under 16) | The respondent attended the home of his daughter’s grandmother, Ms Taylor, for a birthday party. The respondent took his daughter (then aged 3) to a room and took a series of 51 photos and a video as he removed her underwear, tickled her and parted her bottom cheeks, focusing the camera on her genital and anal area. | ✔ | ✖ | ✔ | ✔ | VIS received from victim’s grandmother. This charge is linked to charges 2, 5, and 15. | 10 y | 2 y, 2 m (26 m) | 6 m |
[56]Serious sexual offender.
[57]All names used in this table are pseudonyms taken from the Sentencing Reasons.
| Production of child abuse material (‘CAM’) offences | |||||||||||
| Date(s) of offending | Charge no | Offence | Description of offending/charge | On CCO? | On Probation? | SSO? | Standard sentence offence? | Other notes | Max sentence | Sentence imposed | Cumulation |
| 19.11.2012 | 1 | Produce child abuse material | The respondent attended the home of his support worker, Ms Menzie, and took 11 photos of her daughter (aged 7), focusing on her underwear and genital area. The girl was clothed at the time. Five images were classified as CAM. | ✔ | ✔ | ✖ | ✖ | Respondent aged 17 at time. VIS received from victim. | 10 y | 7 days | — |
| 2019 and 2020 | 4 | Produce child abuse material | On multiple occasions in 2019 and 2020, the respondent visited a friend, Ms Baker, and photographed her son and two daughters (aged 6, 4–5 and 3–4, respectively). The images depicted the children naked on a lounge room floor and four images were classified as category 1 CAM . | ✔ | ✖ | ✔ | ✖ | . | 10 y | 2 m | — |
| 19.02.2019 and 20.04.2019 | 5 | Produce child abuse material | Rolled-up charge, consisting of two separate acts involving the respondent’s daughter (then aged 2): a. On 20.04.2019, during a visit to Ms Taylor’s house, the respondent took a photo of his daughter on the couch reading a book while she was naked from the waist down. The camera was focused on her genital area. The photo constituted category 1 CAM. b. On 9.02.2019, the respondent photographed himself committing the acts described in relation to charge 14 above. | ✔ | ✖ | ✔ | ✖ | VIS received from victim’s grandmother. | 10 y | 18 m | 3 m |
| 20.5.2019 | 6 | Produce child abuse material | Rolled-up charge relating to the respondent’s act of filming and photographing the assaults that formed the basis of charges 7 and 8. | ✔ | ✖ | ✔ | ✖ | This charge is linked to charges 7 and 8. | 10 y | 18 m | 3 m |
| 18.8.2019 | 9 | Produce child abuse material | While at his home with his then girlfriend, the respondent set up a camera and filmed himself penetrating her vagina with his penis. She was aged 15 at the time. | ✔ | ✖ | ✔ | ✖ | No charges were brought in connection with the respondent’s sexual penetration of his girlfriend. | 10 y | 18 m | 3 m |
| 23.8.2019, 27.8.2019 and 30.9.2019 | 10 | Produce child abuse material | Rolled-up charge consisting of three instances of the respondent filming a 4-year-old boy climbing on the windowsill of his home. The footage was taken from a distance while driving past, from across the street and again from directly outside the boy’s house. Part of the footage depicted the boy playing with his exposed penis and bending over to expose his anal region. The child was not known to the respondent. | ✔ | ✖ | ✔ | ✖ | — | 10 y | 8 m | 2 m |
| 8.9.2019 and 9.10.2019 | 11 | Produce child abuse material | Rolled-up charge consisting of two instances of similar offending: a. On 8.9.2019, the respondent attended the Brunswick Baths with his daughter. While there, he entered a change room and created 10 recordings and 3 GIFs depicting children (3 girls, 1 boy, aged 1–6) naked, showering and getting dressed. He recorded the videos by placing his phone underneath the cubicles so that the camera was facing up and focusing on the child’s genitals. b. On 9.10.2019, the respondent attended a leisure centre in Altona. He again entered a change room and used his mobile phone to take a video and 25 photos of three naked children (aged 2–5). The photos and footage focused on the children’s genital regions. | ✔ | ✖ | ✔ | ✖ | — | 10 y | 12 m | 2 m |
| 19.1.2020 | 12 | Produce child abuse material | The respondent received a Snapchat video of a 14-year-old girl masturbating. He used the screen record function on his mobile phone to covertly record the video. | ✖ | ✖ | ✔ | ✖ | VIS received from victim. | 10 y | 8 m | 1 m |
| 22.1.2020 and 9.2.2020 | 13 | Produce child abuse material | Rolled up charge consisting of two acts of production: · On 22.1.2020, the respondent visited a shopping centre in Brunswick and took a series of 44 photos of a boy and girl (aged approximately 4–7) playing. When the girl leaned over, lifting her dress up, the respondent focused his camera on her exposed underwear. · On 9.2.2020, the respondent took 68 photographs and a video of children aged 3–7 on a train. The video depicted an unidentified girl (aged approximately 5) sitting with her knees bent towards her chest and her legs spread. The camera is zoomed in on her underwear. | ✖ | ✖ | ✔ | ✖ | The victims of the offending on this charge remain unidentified. | 10 y | 14 m | 2 m |
| 9.2.2020 | 15 | Produce child abuse material | While attending a party at Ms Taylor’s house (see charge 14, above), the respondent went upstairs with his cousin’s son and daughter (aged 6 and 3) and his own daughter (aged 3). He then took 23 photos and a Snapchat video of the children jumping on a bed and playing games on the floor. Many images focused on his niece’s underwear. | ✖ | ✖ | ✔ | ✖ | This charge is linked to charge 14. | 10 y | 12 m | 2 m |
| 11.2.2020 | 16 | Produce child abuse material | The respondent received a Snapchat video from another user depicting her two-year-old son naked at home. The respondent screen-recorded the video and sent it to his Google Drive account. | ✖ | ✖ | ✔ | ✖ | — | 10 y | 4 m | — |
| Possession / distribution of CAM offences | |||||||||||
| Date(s) of offending | Charge no | Offence | Description of offending/charge | On CCO? | On Probation? | SSO? | Standard sentence offence? | Other notes | Max sentence | Sentence imposed | Cumulation |
| 24.8.2019–11.3.2020. | 2 | Possess child abuse material | Rolled-up charge capturing numerous acts of CAM possession between 24.8.2019 and 11.3.2020: a. On 24.8.2018, the respondent received 17 images via email depicting children’s feet with what appears to be ejaculate on them. A few minutes later he received a further 26 CAM images. Most depicted naked girls aged approximately 7–8 with their legs spread and the camera angled at their genital areas. b. On 29.3.2019 the respondent received 3 CAM images from another person via email. c. On 17.4.2019, the respondent received 21 CAM images via email. The images ranged from categories 1 to 7 and depicted boys and girls aged under 10 engaged in various sexual acts (including penetration) together and with adults. d. On 12.11.2019, the respondent traded CAM with another person via email. In return for his own images (see para (h) of charge 3, below) the respondent received a photo of a naked boy (aged approximately 5) holding an male adult’s erect penis. e. On 30.12.2019, the respondent received via email a WhatsApp video of a woman dressing a girl (aged approximately 3) who was initially naked with her genitals clearly visible. He replied with a CAM video (see para (j) of charge 3, below). f. On 6.2.2020, the respondent received via email three CAM images. The following day, he responded by sending three CAM images of his own (see para (l) of charge 3, below). More broadly, charge 2 also encompasses a collection of 8026 illegal CAM files, comprising 704 images and videos found on the respondent’s electronic devices, and a further 7322 images and videos found on two of his Google Drive accounts. The materials ranged in severity from categories 1 to 7. | ✔ | ✖ | ✖ | ✖ | Portions of the offending on charge 2 relate to offending on charges 3 and 10. | 10 y | 2 y (24 m) | 2 m |
| 27.8.2018–9.2.2020 | 3 | Distribute child abuse material | Rolled-up charge capturing various acts of CAM distribution: a. On 27.8.2018, the respondent sent to another person via email seven screen-shots, each containing multiple CAM images. b. On 10.9.2018, the respondent sent a series of digital video CAM images to another person via email. c. Between 14.10.2018 and 15.10.2018, the respondent sent five emails to another person with CAM images attached. The images were taken in a change room and depicted children (aged 2–7) in various stages of undress. d. On various dates between 2019–2020, after taking photos of Ms Baker’s children (see charge 4 above), the respondent sent the images to a Snapchat user named ‘Sophie’. e. On 11.4.2019, the respondent sent two CAM images to another person via email, one depicting a girl (aged approximately 6) being penetrated by an adult male. f. Later on 11.4.2019, the respondent sent the same two CAM images to another email user. g. Between 26.6.2019 and 26.9.2019, the respondent sent seven CAM files to another person via email. Two videos were of the boy the subject of charge 10, above. h. On 12.11.2019, the respondent traded CAM via email. He sent a GIF file depicting a boy (aged approximately 1) falling over in a shower, exposing his genital region. In return, the respondent received the images described at para (d) of charge 2 above. i. Again on 12.11.2019, the respondent sent the GIF file of the boy falling over in the shower to another email address. j. Between 30.11.2019 and 3.12.2019, the respondent traded CAM material via email. After receiving the video described at para (e) of charge 2 above, the respondent sent a Snapchat video of a boy (aged approximately 3) sitting on a woman’s lap naked, playing with his penis. k. On 3.12.2019, the respondent sent to another person via email the videos described at para (e) of charge 2 and para (j) of charge 3, above. l. Between 6.2.2020–7.2.2020, the respondent again traded in CAM via email. In exchange for three CAM images, the respondent sent three images of his own. The images depicted a boy (aged approximately 2–3) naked in a bathroom, with one photo focused solely on his penis. m. On 7.2.2020, the respondent sent an email to another person stating ‘can I see more please. Attached is a fav of yours and one of mine’. He attached to his email two CAM files which featured boys aged approximately 2–3. n. On 9.2.2020, the respondent attended a party at Ms Taylor’s house (see description of charges 14 and 15, above). After taking the photos described in charge 15, the respondent sent one of the images to a Snapchat friend. | ✔ | ✖ | ✔ | ✖ | Portions of offending relate to offending on charges 2, 10, 14, and 15. | 25 y | 2 y (24 m) | 3 m |
| Other offences | |||||||||||
| Date of offending | Charge no | Offence | Description of offending/charge | On CCO? | On Probation? | SSO? | Standard sentence offence? | Other notes | Max sentence | Sentence imposed | Cumulation |
| 11.3.2020 | 17 | Possess drug of dependence (cannabis) | During a search of the respondent’s residence, police located a small plastic container containing cannabis. | ✖ | ✖ | ✖ | ✖ | On bail at time (see summary charge 14) | 5 penalty units | Charge proved and dis-missed | — |
| 11.3.2020 | Summa-ry charge 4 | Commit indictable offence while on bail | The respondent was on bail at the time drugs of dependence were found in his possession. | ✖ | ✖ | ✖ | ✖ | — | 30 penalty units or 3 m prison | ||
| 11.3.2020 | Summa-ry charge 5 | Contravene conduct conditions of bail | Upon his arrest, the respondent was found to have been staying at an address other than the address stipulated in his bail conditions. | ✖ | ✖ | ✖ | ✖ | — | 30 penalty units or 3 m prison | 1 m (aggreg-ate sentence) | — |
| 10.4.2020 | Summa-ry charge 11 | Contravene conduct conditions of bail | Police attended a residence and found the respondent playing online games with another person. He was arrested and searched, and found to have a ZTE Blade mobile phone in possession, contrary to his bail conditions. Subsequent analysis revealed the phone had been used to send text messages to a contact saved as ‘Mum’ on 8.4.2020. | ✖ | ✖ | ✖ | ✖ | — | 30 penalty units or 3 m prison | ||
| Total effective sentence | 8 years, 8 months’ imprisonment |
| Non-parole period | 5 years, 8 months |
| Other relevant orders | Registered under the Sex Offenders Registration Act 2004, with reporting requirements for life. |
COURT OF APPEAL
459 Lonsdale Street, Melbourne, VIC 3000
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