Edwin v The Queen
[2014] ACTCA 47
•27 October 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Edwin v The Queen |
Citation: | [2014] ACTCA 47 |
Hearing Date(s): | 7 August 2014 |
DecisionDate: | 27 October 2014 |
Before: | Murrell CJ, Walmsley and Robinson AJJ |
Decision: | Appeal allowed. Set aside the sentences imposed by the trial judge. The appellant is sentenced as per [92]-[95]. |
Category: | Principal Judgment |
Catchwords: | APPEAL – Appeal against sentence – whether sentence manifestly excessive – whether failure to take good character into account – whether irrelevant matters taken into account – concurrency APPEAL – Appeal against sentence – common nonparole period imposed for both Territory and federal offences APPEAL – Appeal against sentence – misstatement of maximum penalty – whether a material error |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 33, 34 Crimes Act 1900 (ACT) ss 61, 64, 65 Criminal Code 1995 (Cth) ss 474.17, 474.19, 474.27 |
Cases Cited: | Achurch v The Queen (2014) 306 ALR 566 Attorney-General v Tichy (1982) 30 SASR 84 Siganto v TheQueen (1998) 194 CLR 656 |
Parties: | Navin Edwin (Appellant) The Queen (Respondent) |
Representation: | Counsel Mr S Gill (Appellant) Ms M Jones (Respondent) |
| Solicitors Craig Lynch & Associates (Appellant) Director of Public Prosecutions (ACT) (Respondent) | |
File Number(s): | ACTCA 66 of 2013; SCC 60, 61A and 61B of 2011 |
Decision under appeal: | Court: Supreme Court of the ACT Before: Burns J Date of Decision: 26 September 2013 Case Title: R v Edwin Court File Number(s): SCC 60 of 2011; SCC 61A of 2011; SCC 61B of 2011 |
THE COURT:
The Appeal
The Court will consider the following matters:
(a)The Appeal [1] to [8]
(b)The Hearing of the Appeal [9] to [20]
(c)The Grounds of Appeal [21] to [27]
(d)Trial Judge’s Findings [28] to [33]
(e)Treatment of Character Evidence [34] to [38]
(f)Use of Evidence - Crimes (Sentencing) Act 2005 (ACT) s 34, [39] to [45]
(g)Objective Seriousness [46] to [60]
(h)Concurrency of Sentences [61] to [69]
(i)Manifestly Excessive [70] to [80]
(j)Crimes Act 1914 (Cth) s 19AJ [81] to [82]
(k)Jurisdiction on Appeal and Order [83] to [95]
The Appellant, Mr Navin Edwin, was convicted of a total of 17 offences at two trials held in May and June 2013. Two trials were held because an indictment was severed and the counts concerning one complainant were tried separately.
At the first trial the Appellant was found guilty of 13 counts.
At the second trial the Appellant was found guilty of four further counts.
On 26 September 2013 the trial judge sentenced the Appellant in respect of the offences for which he was found guilty. The aggregate sentence was of 10 years and eight months’ imprisonment. The trial judge set a nonparole period of six years and six months, commencing 24 September 2010 and expiring 23 March 2017. The date of the commencement of the sentence reflected the Appellant’s pre-trial time in custody. As will be seen, the overall sentence involved a degree of concurrency and also a degree of accumulation.
The Appellant lodged an appeal against conviction in relation to all counts on which he was convicted at both trials. In addition, he appealed against the severity of the sentences imposed upon him. The Appellant has not proceeded with his conviction appeal.
Accordingly, what is before the Court is an appeal against the severity of the sentences. The Appellant does not require leave to appeal against sentence under the provisions of the Supreme Court Act 1933 (ACT).
In order to understand the issues on appeal it is helpful to set out each count on which the Appellant was convicted on the two indictments, together with a summary of that count and each sentence imposed. It will be seen that there are four identified female complainants: E (aged six or seven); CR (aged 11); MB (aged 13) and THW (aged 15 or 16).
TRIAL ONE
| COUNT | CHARGE | COMP-LAINANT | AGE | DESCRIPTION | DATE OF OFFENCE | MAXIMUM | SENTENCE |
| 1 | Act of indecency on a child under 10 years of age - Crimes Act 1900 (ACT) s 61(1) | E | 6 or 7 | Moving complainant’s underwear so he could look at her genitalia | Between 7/6/09 and 18/2/10 | 12 yrs | 18 mths 24/9/10 to 23/3/12 |
| 18 | Act of indecency on a child under 10 years of age Crimes Act 1900 (ACT) s 61(1) | E | 6 or 7 | While carrying complainant putting his hand in her underwear and touching her vagina *Counts 1 & 18 occurred on the same day | Between 7/6/09 and 18/2/10 | 12 yrs | 2 yrs 6 mths 24/3/11 to 23/9/13 |
| 3 | Act of indecency on a child under 10 years of age Crimes Act 1900 (ACT) s 61(1) | E | 7 | Filming complainant’s underwear and upper thigh region | 7/11/09 | 12 yrs | 12 mths 24/3/13 to 23/3/14 |
| 4 | Use child for production of child pornography Crimes Act 1900 (ACT) s 64(1) | E | 7 | Photos of complainant’s vagina and anus, including defendant’s finger inside complainant’s underwear | 13/12/09 | 15 yrs | 3 yrs 24/9/13 to 23/9/16 |
| 5 | Act of indecency on a child under 10 years of age Crimes Act 1900 (ACT) s 61(1) | E | 7 | Pulling complainant’s underwear aside to take photos the subject of Count 4 *Counts 4 and 5 are connected | 13/12/09 | 12 yrs | 18 mths 24/3/15 to 23/9/16 |
| 6 | Use child for production of child pornography Crimes Act 1900 (ACT) s 64(1) | E | 7 | Photos of complainant’s vagina and anus, including defendant’s finger inside complainant’s underwear, while she sits on couch | 27/12/09 between 1.22am and 1.35am | 15 yrs | 3 yrs 24/3/14 to 23/3/17 |
| 7 | Act of indecency on a child under 10 years of age Crimes Act 1900 (ACT) s 61(1) | E | 7 | Pulling complainant’s underwear aside to take photographs the subject of Count 6 *Counts 6 & 7 are connected | 27/12/09 between 1.22am and 1.35am | 12 yrs | 18 mths 24/3/16 to 23/9/17 |
| 9 | Act of indecency on a child under 10 years of age Crimes Act 1900 (ACT) s 61(1) | E | 7 | Pulling complainant’s underwear aside to take photographs. | 27/12/09 | 12 yrs | 12 mths 24/11/16 to 23/11/17 |
| 10 | Use child for production of child pornography Crimes Act 1900 (ACT) s 64(1) | E | 7 | Photos of complainant’s vagina and anus, including defendant’s finger insider her underwear | 18/2/10 about 8.21pm | 15 yrs | 3 yrs 24/11/15 to 23/11/18 |
| 11 | Act of indecency on a child under 10 years of age Crimes Act 1900 (ACT) s 61(1) | E | 7 | Pulling complainant’s underwear aside to take photographs the subject of Count 10 *Counts 10 & 11 are connected | 18/2/10 about 8.21pm | 12 yrs | 18 mths |
| 13 | Use carriage service in an offensive manner Criminal Code 1995 (Cth) s 474.17 | CR | 11 | Text messages to complainant’s phone referring to possible sexual acts with complainant and inquiries as to what she was wearing | 20/4/10 | 3 yrs | 12 mths 24/7/18 to 23/7/19 |
| 15 | Act of indecency in the presence of a child under 16 years of age Crimes Act 1900 s (ACT) 61(2) | MB | 13 | Sat opposite complainant and used a video camera to zoom in on and film her groin area | 6/2/10 | 10 yrs | 12 mths 24/9/18 to 23/9/19 |
| 17 | Intentionally possess child pornography Crimes Act 1900 (ACT) s 65 | Not known | Possession of image of two female children showing their vaginas and anuses | 23/4/10 | 5 yrs and not 7 yrs as stated by trial judge | 6 mths 24/9/10 to 23/3/11 |
TRIALTWO
| COUNT | CHARGE | COMP-LAINANT | AGE | DESCRIPTION | DATE OF OFFENCE | MAXIMUM | SENTENCE |
| 1 | Use carriage service to groom person under 16 to engage in or submit to sexual activity Criminal Code 1995 (Cth) s 474.27 | THW | 15 | Sexually explicit conversations with complainant over Facebook and Windows Live Messenger | Between 21/8/09 and 17/2/10 | 12 yrs | 2 yrs 24/9/18 to 23/9/20 |
| 3 | Use carriage service to transmit child pornography | THW | 16 | In response to repeated requests from appellant the complainant sent him a naked photograph of herself via email | Photo sent between 8/3/10 and 9/3/10 | 10 yrs and not 15 years as stated by trial judge | 12 mths 24/12/19 to 23/12/20 |
| 4 | Use carriage service to transmit child pornography Criminal Code 1995 (Cth) s 474.19 | THW | 16 | The appellant edited the naked photo and sent it back to the complainant *The dates for this offence include period over which photo edited | Between 9/3/10 and 23/4/10 | 10 yrs and not 15 years as stated by trial judge | 12 mths 23/12/20 to 23/3/21 |
| 5 | Use carriage service in an offensive manner | THW | 16 | The appellant sent four semi-naked pictures of himself to the complainant | 6/2/10 | 3 yrs | 6 mths 24/11/20 to 23/5/21 |
The Hearing of the Appeal
On the hearing of the appeal it became clear that the sentencing process had miscarried. Two issues were identified that had not been made the subject of any ground of appeal.
The first of those issues concerned the failure to accommodate the separate and distinct sentencing regimes that applied to the commission of the Commonwealth offences on the one hand, and the commission of offences under the ACT statute on the other.
Each of these regimes has specific sentencing provisions. In the ACT it is the Crimes (Sentencing) Act 2005 (ACT). In the case of the Commonwealth, it is the Crimes Act 1914 (Cth). As was observed in R v Kearns [2003] NSWCCA 367 at [73]-[74], and followed in many subsequent cases, a sentencing judge must accommodate the two distinct regimes.
Contrary to this approach, the Appellant was sentenced by the trial judge on the basis that the ACT regime applied to all of the offences. The trial judge’s attention was not called to this fact when he apparently overlooked it. During the course of the appeal the Court, itself, drew attention to this fact and enquired whether any detriment had been caused by failing to apply the differing regimes to the different offences. Each party disclaimed any detriment. The matters which each of the regimes hold relevant to sentence in respect to any individual offence are not congruent, although, as would be expected, are very similar.
The oversight has had the further consequence that the sentences imposed by the trial judge are not authorised by the provisions of the Crimes Act 1914 (Cth) because a common nonparole period was specified globally for both Territory and Federal offences. This is in breach of s 19AJ of that Act. It will be necessary to return to this matter in greater detail below.
A further issue which may have arisen as a result of the trial judge’s failure to consider the different regimes was that the Appellant invoked, in aid of his appeal, the provisions of s 34 of the Crimes (Sentencing) Act 2005 (ACT) claiming that sentences had been impermissibly increased by application of some of the factors in that section. There is no analogue in the Crimes Act 1914 (Cth). Fortunately, for reasons set out below we find that this difficulty does not arise because there was no breach of the prohibition in s 34.
The sentences imposed on the Appellant need to be considered against the respective statutory maximum penalties. The trial judge clearly did this and set out in his remarks the penalty for each offence. Unfortunately, the trial judge misstated, in three instances, the maximum penalty in force at the time of the commission of the offences. This was the second issue. The respective legislatures had increased the penalties for those offences subsequent to their commission by the Appellant. In the absence of a specific transitional provision to the contrary, the penalty at the date of the commission of the criminal offence in question applies. See also Crimes Act 1914 (Cth) s 4F(1) and Human Rights Act 2004 (ACT) s 25(2). The Court’s attention was drawn to these misstatements only by the Crown’s supplementary submissions delivered after the hearing of the appeal. The Court does not know the origin of these errors.
The table above contains notations at Count 17 in trial 1, Count 3 in trial 2 and Count 4 in trial 2 calling attention to those errors. Section 65(1) of the Crimes Act 1900 (ACT) was amended by s 6 of the Criminal Proceedings Legislation Amendment Act 2011 (ACT) which took effect on 6 July 2011. Section 474.19(1) (a) (ii) and (iii) of the Criminal Code 1995 (Cth) was amended by the Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 (Cth) which took effect from 15 April 2010.
The significance of the errors can be gained by starting with a consideration of the joint judgment in Markarian v The Queen (2005) 228 CLR 357 (Markarian) at [30]-[31]:
[30] Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. In their book Sentencing, Stockdale and Devlin observe that:
A maximum sentence fixed by Parliament may have little relevance in a given case, either because it was fixed at a very high level in the last century … or because it has more recently been set at a high catch-all level … At other times the maximum may be highly relevant and sometimes may create real difficulties …
A change in a maximum sentence by Parliament will sometimes be helpful [where it is thought that the Parliament regarded the previous penalties as inadequate].
[31] It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. That having been said, in our opinion, it will rarely be, and was not appropriate for Hulme J here to look first to a maximum penalty, and to proceed by making a proportional deduction from it. That was to use a prescribed maximum erroneously, as neither a yardstick, nor as a basis for comparison of this case with the worst possible case.
The cases recognize that a misstatement of the maximum penalty is an error but that that error does not automatically lead to a reduction in sentence. See, for example, EJDG v The Queen [2012] NSWCCA 251 at [23]-[26]. However, in this case, the three errors have the capacity to not only infect the sentences on each of the three individual counts involved but also to infect the trial judge’s assessment of the overall criminality involved when applying the totality principle.
Where an error as to the maximum penalty for an offence has been made, that error may justify appellate intervention; it is not necessary for an appellant to establish that the sentences, individually or in combination, are manifestly excessive in order to bring about a reconsideration of those sentences (Minehan v The Queen (2010) 201 A Crim R 243 at [67]-[71]). What must be proved is a material error as opposed to an error that is technical or trivial in nature.
The sentences imposed were respectively 6 months, 12 months and 12 months. These were based on the incorrect assumption that the maximum penalty was seven years in relation to the six-month sentence, and 15 years in relation to the two 12 months sentences. As noted above, the correct statutory maximum penalties were five years, 10 years and 10 years respectively. We do not take the view that, in the circumstances, the errors were technical or trivial in nature. The trial judge must be taken to have sentenced the Appellant against those maximums which he stated. The Appellant is entitled to the benefit of that determination. We cannot say in the circumstances “that no lesser sentence is warranted in law” (EJDG v The Queen at [26]). We return to the consequence of this below. The appellant is entitled to be resentenced on these counts according to law. This may result in different sentences for these offences and a reconsideration of the aggregate sentence given the application of the principle of totality.
Grounds of Appeal
In written submissions filed prior to the hearing of the appeal, the Appellant advanced a single ground of appeal: [The] sentence imposed was manifestly excessive. A number of specific matters were then identified which were said to be supportive of that assertion. These were the treatment of character, the use of evidence, the assessment of objective seriousness and accumulation.
At the outset of the hearing, the Appellant was given leave to amend his grounds of appeal to incorporate the “specific matters” referred to in the previous paragraph into freestanding grounds of appeal.
Two matters should be noted. The first is that to assert that a sentence is “manifestly excessive” is to simply state a conclusion. It is commonly invoked where no specific error in the reasoning process can be, or has been, articulated. The second is that the appeal concerned 17 sentences and not just one sentence, even if, as a matter of shorthand, the net impact of the 17 sentences was the Appellant’s focus of attention.
The Appellant’s primary attack was on the overall effect of the sentencing process which produced a result of 10 years and eight months’ imprisonment with a nonparole period of six years and six months. This was said to be manifestly excessive. The Appellant also identified three sentences of the 17 that were submitted to be outside the range of available sentences in the circumstances. These were those sentences imposed on Counts 4, 6 and 10, each of three years’ duration.
As noted at paragraph [12], the Appellant was sentenced under the Crimes (Sentencing) Act 2005 (ACT) only. Part 5.3 of that Act deals with concurrent and consecutive sentences. For present purposes, it is enough to note that that Part, unlike in some jurisdictions, imposes upon a judge a requirement to sentence for each individual offence before consideration of any accumulation or concurrency where there is more than one count. The same process is applicable to the Commonwealth offences pursuant to s 19 of the Crimes Act1914 (Cth).
There was no ground of appeal relating to the unauthorised specification of a common nonparole period for both Territory and Federal offences. However, the matter having come to the Court’s attention it must be regularised. The formal recording of the orders of a superior court of record is no formality. (Burrell v The Queen (2008) 238 CLR 218). The correction of this particular state of affairs could and should be done upon the appeal as part of the appeal process (Achurch v The Queen (2014) 306 ALR 566 at [35]).
There was similarly no ground of appeal relating to the misstatements of the three maximum penalties. We, however, cannot overlook this in an appeal against sentence by an Appellant.
The Trial Judge’s Findings
In order to appreciate the challenges made by the Appellant to the individual sentences and the aggregate sentence imposed by the trial judge, it is necessary to recount some of the factual background to the offending. It is convenient to take this factual background largely from the trial judge’s remarks on sentence. At the appeal, the Appellant’s counsel disclaimed any error by the trial judge as to the finding of primary facts. Rather, the challenge was to the evaluation of those primary facts as they impacted upon the relevant considerations under s 33 of the Crimes (Sentencing) Act 2005 (ACT) and s 16A Crimes Act 1914 (Cth).
The Appellant’s offending was brought to the attention of prosecutors when he began exchanging text messages of a personal nature with CR. CR was aged 11 at the time and had gone to stay at a friend’s house for a sleepover. The Appellant was aged 30 at this time. The exchange of text messages was noticed by CR’s friend, who reported this fact to her (that is the friend’s) parents. As a result of this report, CR’s phone messages were read by an adult and as a further result the police were notified. That led to police obtaining a search warrant for the residence linked to the Appellant where hard drives were examined, and a number of photographic and electronic items seized. The material obtained by the police formed the basis of the counts subsequently brought against the Appellant in his first and second trials.
The evidence before the trial judge showed that the Appellant was born in southern India and had a good education. He completed a university degree. At the time of sentencing he was 34 years old. He had no alcohol or drug issues. Nor did he suffer from mental illness.
The trial judge found that the Appellant had a strong sexual attraction to pubescent and prepubescent females. He also found that this attraction was understood by the Appellant as abhorrent to the community and that acting upon it, as the Appellant did, constituted serious criminal conduct. The trial judge drew attention to the fact that the Appellant adopted a persona as an intelligent, caring and empathetic man as a camouflage which would allow him access to victims.
The trial judge doubted very much that the Appellant had any understanding of the concepts of morality or conscience. His Honour noted that the Appellant had demonstrated no remorse for the crimes or for the damage that had been inflicted upon the victims. During the period which the Appellant had spent in custody he had not engaged in any therapies designed to avoid sexual reoffending and had continued to deny responsibility for the criminal conduct. His Honour noted that after the Appellant serves his nonparole period he would be liable to be deported.
As can be seen from the table at paragraph [8] there were four identified victims in total. The offences ranged from one that attracted a maximum sentence of three years to one that had as its maximum 15 years’ imprisonment. In considering the “objective seriousness” of the Appellant’s offences trial judge said:
Your offences against E involved breach of trust on two levels. You breached the trust that was placed in you by E’s mother and you also breached the trust reposed in you by E. As a six or seven-year-old, E was vulnerable but you also knew that her family was vulnerable as a consequence of a number of recent crises. A number of the offences were committed when E was asleep making her even more vulnerable. The victim of the offences at your second trial, T, was also vulnerable by reason of age, illness and personal problems. In each case, you exploited their vulnerabilities for your personal sexual gratification. I accept that the offence against M was simply opportunistic.
Treatment of Character
The Appellant, in a somewhat tentatively stated submission by his counsel, put that it remained unclear whether the Appellant’s otherwise good character was taken into account at all by the trial judge. Consideration of the way in which the trial judge dealt with rehabilitation was said to be indicative that the Appellant received no benefit from his otherwise good character.
At AB 22 the trial judge said:
Before these offences, you had no previous convictions recorded against you. Normally that would entitle you to significant leniency with respect to these offences. However, the weight to be given to that fact is reduced as it was because of your previous good character that you were able to ingratiate yourself with your victims and their families. I do not go so far as to say that you entered into the relationship with E’s aunt for the purposes of giving you access to your victim but you clearly made use of the opportunity which that relationship presented to you to have access to your victim.
(Emphasis added)
In Ryan v the Queen (2001) 206 CLR 267 it is made clear that the weight to be given to good character will vary according to the circumstances of the case. The observations in Ryan have been applied in a number of situations. They have been consistently applied in matters involving sexual offences against children. They were, for example, applied in R v Fowler [2007] ACTCA 4 at [14] where the Court of Appeal observed that “In sexual offences, prior good character may be of limited weight where that good character has been used by the accused to gain access to the victim, and this will be particularly apposite in cases of child sex assault.”
It is clear that the trial judge took into account the prior good character of the Appellant. It is also clear that he evaluated the weight to be given to this factor in the circumstances of the case and in accordance with conventional sentencing principles.
No error of the trial judge in his treatment of previous good character has been demonstrated by the Appellant.
Use of Evidence – Crimes (Sentencing) Act 2005 (ACT) s 34
There was no direct complaint by the Appellant about the trial judge’s findings on “rehabilitation”. Rather, it was submitted that the findings made on this topic were impermissibly used for another purpose. To understand this submission it is necessary to set out the trial judge’s findings on this topic.
At AB 24/5 the trial judge said:
I have grave doubts about your potential for rehabilitation. I have no doubt that you have a strong sexual attraction to pubescent and prepubescent females. You understand that this attraction is viewed as abhorrent in the community and that acting upon it, as you did when you committed these offences, constitutes serious criminal conduct. You therefore camouflaged yourself by adopting a persona as an intelligent, caring, empathetic man. You affect Christian values. It is this camouflage that allowed you access to your victims to satisfy your sexual desires. I doubt very much that you can and have any understanding of the concepts of morality or conscience. These offences suggest as much. That suggestion is supported by the fact that in order to avoid the consequences of your actions, you were willing to lie shamelessly on oath about what you did and why you did it. You continued this pattern of dishonesty by repeating your lies to the author of the Pre-Sentence Report.
You have demonstrated no remorse for your crimes or for the damage that you have inflicted upon your victims. I am satisfied that you feel none. This causes me to conclude that you present as a greater risk of sexual offending than was suggested by the author of the Pre-Sentence Report.
The most important sentencing consideration for these offences are punishment and deterrence. Personal deterrence is still an important sentencing consideration as you have not engaged in therapies designed to avoid sexual re-offending and you continue to deny responsibility.
The bolded words are the subject of the contention by the Appellant under this heading.
The Appellant did not dispute that it was incumbent on the trial judge under s 33(1) of the Crimes (Sentencing) Act 2005 (ACT) to take into account, among many other matters:
· The degree of responsibility of the offender for the commission of the offence; (s 331(1)(i))
· The reason or reasons why the offender committed the offence; (s 33(1)(v))
· Whether the offender has demonstrated remorse (s 33(1)(w))
The Appellant’s challenge to this part of the trial judge’s reasons is that whilst taking these matters into account, the trial judge impermissibility took into account other matters made “irrelevant” by s 34(1) of the Crimes (Sentencing) Act 2005 (ACT) and increased the sentence on the basis of irrelevant considerations. For present purposes, s 34(1) mirrors the common law (see Siganto v TheQueen (1998) 194 CLR 656 at 663-666) and so the challenge, if made good, would also apply to the Commonwealth offences.
Section 34 relevantly says:
(1)In deciding how an offender should be sentenced (if at all) for an offence, a court must not increase the severity of the sentence it would otherwise have imposed because of any of the following:
…
(d) that the offender may have committed perjury or been guilty of contempt of court during the proceeding;
(e) the offender’s behaviour in court;
(f) that the offender chose to plead not guilty
It is true that the trial judge had occasion to address the Appellant’s behaviour at trial. It is also true that he was not uncritical of it. However, there is no indication from the remarks on sentence that the trial judge increased any sentence by having regard to the conduct of the offender during the trial. Counsel for the Appellant on the hearing was unable to point to other material to make good his submission other than the bolded words appearing at paragraph [40] above.
The Appellant has failed to demonstrate that the trial judge fell into error by impermissibly increasing any of the sentences imposed by reason of factors in s 34 of the Crimes (Sentencing) Act 2005 (ACT).
Objective Seriousness
The Appellant, in his primary written submissions, conceded that it was reasonable to describe all instances of the offences of which the Appellant was convicted as serious. He goes on to submit, correctly, that such a description does not end the process of assessment of objective seriousness. Again correctly, he submits that amongst offences that may be described as serious there exists a spectrum.
The Appellant drew attention to the COPINE scale as an established methodology for the assessment of the seriousness of an image. That scale involves categorisation based upon different levels of activity concerning the offence of possession of child pornography. See the discussion in R v Oliver [2003] 1 Cr. App. R. 28 at [9]-[12] where the categorisation is reduced to five levels derived from the COPINE scale.
The trial judge did not refer to that scale in this case. He was not asked to do so. The Appellant was convicted of one offence of intentionally possessing child pornography (Count 17) and was sentenced to 6 months’ imprisonment which was entirely concurrent with another sentence. There is no challenge to that sentence of six months’ imprisonment.
However, the submission that the Appellant made implicitly under this heading was that, for the purpose of the sentencing, the seriousness of the incidence of offending, outside the offence of possession of child pornography, should be objectively evaluated by a process analogous to assessment against the Oliver scale. Undoubtedly that submission is correct. The trial judge set out his finding on this topic at AB 24.It is set out at par [40] above. No express criticism was made of this passage by the Appellant. However, it is true that in this passage the trial judge dealt with manner of access to the victims and not expressly with the Appellant’s activity and indecent dealings with the victims. That is obviously another aspect or dimension of objective seriousness.
At the hearing of the appeal the Appellant’s counsel submitted that three of the 17 sentences imposed by the trial judge were outside the range available in the circumstances of the offending (T.16). These were the sentences imposed for counts 4, 6 and 10 on the first indictment. Each of these three offences was of using a child under 12 years of age for the production of child pornography. Each of the offences related to the complainant E. This offence is contrary to s 64(1) of the Crimes Act 1900 (ACT) and carries a maximum penalty of 15 years’ imprisonment. The Appellant was sentenced to 3 years’ imprisonment on each of these counts.
A number of matters common to each offence can be noted. The Appellant was not entitled to any discount for pleading guilty. Although the Appellant should be taken to be of good character for the purpose of sentence, that good character had reduced weight in the circumstances of the offending. The complainant in respect of these offences was six or seven at the time of their commission. The Appellant was 30. The offences were committed in breach of trust in the manner described by the trial judge at AB 24. The Appellant committed the offences to obtain sexual gratification.
In Count 4, the Appellant took images including close up shots of the complainant’s anus and vagina, including shots in which the Appellant’s fingers are shown pulling the complainant’s underwear to one side. The images were taken while the complainant was apparently asleep.
In Count 6, the Appellant took a series of images while the complainant was apparently asleep on two separate occasions some minutes apart. The images depict the complainant’s buttocks and genital region including close-ups of her anus, vagina and labia. Some of the images depict the Appellant’s fingers near the complainant’s genital region and pulling aside her underwear.
In Count 10, the Appellant took a series of images depicting the complainant lying on her bed apparently asleep. The images depict the Appellant’s finger inside the complainant’s underwear.
The images obtained were found on a Western Digital hard drive located at the Appellant’s then residence. The trial judge was satisfied that the hard drive was retained by the Appellant in order to save the images so that he could remove them later to some other platform. There was no finding that these images were to be viewed, or were viewed, other than by the Appellant nor was there any finding that they were to be, or were, disseminated.
The Appellant did not submit that the trial judge made findings or observations which were either irrelevant or inaccurate. Rather, the Appellant took issue with the implicit evaluation of the offending by the trial judge against examples of other more serious offending which would come within the same prohibition.
The trial judge, it was submitted, made no appropriate findings as to where this “serious offending” fitted into the spectrum of seriousness coming within the prohibition.
Counsel for the Appellant did not refer specifically to any analogous cases to disturb the conclusion that a sentence of three years on each count was justified in the circumstances for this offending against the statutory background of 15 years.
We cannot find any manifest error in the conclusion that three year sentences were justified at law for this offending. As previously noted, the Appellant could point to no specific error in His Honour’s remarks with respect to the three sentences. It is not open to us to form our own view unless error is identified or the sentences are so plainly unjust that error must be inferred (manifest excessiveness).
The Appellant has not shown that the sentences on counts 4, 6 and 10 of the first indictment are outside the range open to the sentencing judge.
Concurrency
The Appellant submitted that the trial judge failed to consider that the “paired counts” relating to the production of child pornography with the associated count of an act of indecency together represented a single but multifaceted incursion into criminal conduct. These “paired counts” are counts four and five, counts six and seven and counts 10 and 11 of the first indictment.
During argument on the appeal, the Appellant’s counsel elaborated on this ground. He started by drawing attention to the fact that the sentences for counts four and five were wholly concurrent with each other. He then observed that sentences for counts six and seven, which mirror counts four and five, were not made wholly concurrent. Similarly, he drew attention to the fact that the sentences on counts 10 and 11, which again mirror counts four and five, were not wholly concurrent. Added to this, the Appellant’s counsel further submitted, was the fact that there was no explanation given for this apparent inconsistency of approach by the trial judge. The gravamen of the Appellant’s complaint in relation to this ground is that he should have been given the benefit of concurrent sentences for all the “paired counts”, not only counts 4 and 5.
The trial judge dealt with concurrency for offences in the trials at AB 25. He said:
With respect to the first trial, counts one and 18 occurred on the same date, close together in time and involved the same victim. A significant element of concurrency is warranted on those charges. The same may be said with respect to counts four and five, counts six and seven and counts 10 and 11. In addition, there are common elements with respect to all counts that must be reflected in a degree of concurrency. With respect to the second trial, counts three and four relate to effectively the same material and all counts relate to the one victim. Finally, I must apply the principle of totality to the aggregate sentence. All of which results in a significant degree of concurrency with respect to the sentences that I am about to impose.
As can be seen, the trial judge did not, in any precise or mathematical manner, separate out the question of accumulation and concurrency on the one hand from the application of the principle of totality on the other.
The difficulty with the Appellant’s analysis is that it is not clear how and to what extent the trial judge altered his determination on concurrency because of considerations of totality. It is obvious that altering the extent of accumulation of the individual sentences and pairing of sentences would be one mechanism to achieve the result dictated by applying the principle of totality.
At this point of the consideration it is appropriate to set out the law to be applied. In their joint judgment in Pearce v The Queen (1998) 194 CLR 610 (Pearce), McHugh, Hayne and Callinan JJ said at [45] that “[a] judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality”.
The footnote attached to this passage referred to Mill v The Queen (1988) 166 CLR 59 (Mill). In Mill at 63-64 the joint judgment adopted a statement from DA Thomas, Principles of Sentencing, 2nd ed. (1979), pp. 56-57 (omitting references):
The effect of the totality principle is to require a sentence who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’. The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences’.
We see no error in the approach of the trial judge at AB 25 set out above at [63]. The decision in Pearce commands this approach. Although the trial judge did not articulate the precise way in which he applied the totality principle it was clearly a factor in the sentences. The trial judge was engaged “in using the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty”. (Attorney-General v Tichy (1982) 30 SASR 84, 92-3 quoted with approval by Gleeson CJ in Johnson v The Queen (2004) 205 ALR 346 at [4].)
In each case the “paired” offences did not contain the same elements although they were related temporally. It was well open to a sentencing judge to determine that the sentences for the offences would be partly cumulative. The fact that the first pairing (Counts 4 and 5) was made wholly concurrent was a benefit to the Appellant. It does not follow that the further identified pairings would attract a similar determination, especially when regard is had to the application of the totality principle. It will be noticed that the sentence for count 17 was to be served from 24 September 2010 and was wholly concurrent with the unrelated Count 1.
Manifestly Excessive
We have considered this ground briefly knowing that the ultimate sentence will need to be, at least, restructured for failure to comply with the legislation governing the fixing of a nonparole period.
During our consideration we have kept two matters in mind. The first is the trial judge’s misstatement of the maximum penalties referred to in [15] above may have resulted in an error in those sentences. The second is that inaccurate assessment of the overall criminality involved may also have resulted because the trial judge did not apply the principle of totality against the correct statutory framework.
Both the Appellant and the Crown relied on a number of cases as demonstrating the level of sentences given to comparable offending as an indication of whether the total sentence was manifestly excessive. That approach was approved by this Court in R v Campbell [2010] ACTCA 20 at [32]-[35].
Most attention was focussed upon R v TW (2011) 6 ACTLR 18 and R v Tamayo-Del Solar (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 14 March 2013).
It is necessary to summarise the facts in TW. It was a Crown appeal where the Director of Public Prosecutions asserted that the sentences were manifestly inadequate. The sentencing judge had sentenced TW to a total term of imprisonment of seven years with a total nonparole period of four years and six months. This was after TW had pleaded guilty to three counts of committing an act of indecency upon a child, five counts of using a child for the production of child pornography, two counts of possessing child pornography, one count of using a carriage service to access child pornography, one count of using a carriage service to distribute child pornography and one count of using a carriage service to transmit child pornography. As a result of the appeal, the majority increased the overall sentence to 9 years and 7 months’ imprisonment with a nonparole period of 5 years and 6 months. However, this resulted partly from the application of Dinsdale v The Queen (2000) 202 CLR 321, which had the effect of reducing the sentence from 10 years and one month.
There are many common features between the offending by the Appellant and TW. However, it must be said that TW’s offences were at a higher level on the scale of seriousness both in terms of his indecent physical acts and dealings with the children (he took a video of his one year old son playing with his erect penis) and also the scale of his dealings in images together with their distribution to like-minded persons over the internet. He possessed 23,549 images and 1,013 videos. What needs to be kept firmly in mind is that TW pleaded guilty and received from the trial judge a 20% discount for this fact and also received a further discount for his assistance in detecting other offenders and this was set at 10%. In terms of subjective circumstances, TW met the criteria for paedophilia. His paedophilic urges were described as compulsive and egosyntonic. This last expression was used to convey the fact that TW did not see his thoughts or behaviour as undesirable, bad or disturbed. His personality inadequacies led TW to his compulsive involvement with paedophilic sex with both real children and pornographic images.
In R v Tamayo-Del Solar the accused pleaded guilty to four offences and was found guilty after a judge alone trial of a further offence. The offences were committed on two young girls aged 9 and 11 at the relevant time. The offences were of committing an act of indecency upon a person under the age of 10, committing an act of indecency upon a person under the age of 16, intentionally possessing child pornography, using a child to produce child pornography and using a carriage service to transmit communications with the intention of procuring a young person to engage in or submit to sexual activity with him. Access to the victims was obtained through a breach of trust. The trial judge found that Tamayo-Del Solar had inveigled his way into the trust of both the victims and their parents, and in so doing was afforded opportunities for unsupervised access to the victims, during which times he engaged in the relevant criminal activities.
Again there are a number of common features between the offending of the Appellant and Tamayo-Del Solar. The physical acts of indecency are comparable as is the scale of the production of pornography and its possession. At a general level the Appellant committed more offences of a like nature than did Tamayo-Del Solar.
The overall sentence given to Tamayo-Del Solar was six years and three months’ imprisonment with a nonparole period of three years and 10 months.
Some assistance can be obtained from these two cases, but that assistance is limited. We were not referred to criminal statistics concerning other comparable cases and the cases referred to above do not establish an available sentencing range, much less show that the sentences imposed in this case fell outside that range.
The comparable cases to which we were referred do not compel the conclusion that the sentences that were imposed were outside the available range, that is, that they were manifestly excessive.
Crimes Act 1914 (Cth) s 19AJ
As was referred to in [13] above, the overall sentence imposed was not authorised by legislation. Section 19AJ provides that “[t]his Division does not authorise a court to fix a single nonparole period, or make a recognizance release order, in respect both of federal sentences of imprisonment and State or Territory sentences of imprisonment”.
There is another prohibition in the Division which is also engaged. Section 19(3)(d) provides that the sentence for the first federal offence must commence not later than the end of the Territory nonparole period. Leaving the commencement dates of the sentences for the federal offences undisturbed would not comply with this section. Currently, the nonparole period for the Territory offences expires on 23 March 2017. The sentence for the first federal offence currently commences on 24 July 2018. It will be necessary to restructure the Appellant’s sentences in any event.
Jurisdiction on Appeal
The jurisdiction to entertain the appeal on sentence is given to the Court of Appeal by the Supreme Court Act 1933 (ACT). It was accepted by both parties that the relevant test for intervention by the Court of Appeal was whether there had been an error of the kind set out in House v The King (1936) 55 CLR 499. In the absence of such an error the appeal must be dismissed.
In exercising the jurisdiction on appeal, we keep in mind that we must make an explicit finding of error. This is a precondition to the exercise of the authority which the appellate court enjoys under the law to disturb the conclusions of the trial judge, manifested in that judge’s orders (Markarian at [100] per Kirby J.)
We are of the view that a number of errors have intruded into the sentencing process.
The Appellant was sentenced without having regard to the fact that two distinct sentencing regimes applied. The sentences imposed upon the Appellant were not authorised by law. Those sentences must be recast in any event. There were three material misstatements of the maximum penalties applicable to the offences to which the Appellant was found guilty. The trial judge, in having regard to the principle of totality, must have applied it against a mistaken statutory background.
A consequence of undertaking a resentencing is that confidence in the administration of justice will be maintained and there will be no room for the perception that a series of major procedural failings has led to a miscarriage of justice.
We are in a position to resentence the Appellant because there has been no challenge to the primary findings of fact below.
We approach the task bearing in mind the two regimes, the correct maximum penalties stated above for each offence, the fact that there is no discount for any plea of guilty and the trial judge’s findings of fact. We have regard, just as the trial judge did, to punishment and deterrence as being important in this type of offending in the light of the factual findings. We also give limited weight to the Appellant’s previous good character.
We view all these offences as serious. We also recognise the breaches of trust set out by the trial judge concerning the manner of access to the victims as being an aspect of the seriousness of the offences. We also evaluate the terms of the Appellant’s activities and indecent dealings with the victims against the range of conduct within each statutory prohibition. That is a further aspect or dimension of objective seriousness. The trial judge did not expressly state where the offending fell within the continuum of objective seriousness.
Finally, in accordance with Pearce, we have considered accumulation and have had regard to the principle of totality set out in Mill. Necessarily, the structure of the sentences imposed must accord with the two regimes. We have found it convenient to start with the Territory offences and accumulate the federal offences upon them in order to encompass the entire criminality associated with both Territory and federal offences.
Accordingly, the order is:
(l)Appeal allowed
(m)Set aside the sentences imposed by the trial judge.
(n)The Appellant is sentenced as follows-
On count 1 of the first trial the appellant is sentenced to a term of 12 months to commence on 24 September 2010
On count 18 of the first trial the appellant is sentenced to a term of 2 years to commence on 24 September 2010
On count 3 of the first trial the appellant is sentenced to a term of 8 months to commence on 24 September 2010
On count 4 of the first trial the appellant is sentenced to a term of 2 years to commence on 24 September 2012
On count 5 of the first trial the appellant is sentenced to a term of 12 months to commence on 24 September 2012
On count 6 of the first trial the appellant is sentenced to a term of 2 years to commence on 24 September 2013
On count 7 of the first trial the appellant is sentenced to a term of 8 months to commence on 24 September 2013
On count 9 of the first trial the appellant is sentenced to a term of 8 months to commence on 24 September 2013
On count 10 of the first trial the appellant is sentenced to a term of 2 years to commence on 24 September 2014
On count 11 of the first trial the appellant is sentenced to a term of 12 months to commence on 24 September 2014
On count 15 of the first trial the appellant is sentenced to a term of 8 months to commence on 24 September 2010
On count 17 of the first trial the appellant is sentenced to a term of 4 months to commence on 24 September 2010
On count 13 of the first trial the appellant is sentenced to a term of 12 months to commence on 24 September 2014
On count 1 of the second trial the appellant is sentenced to a term of 2 years to commence on 24 September 2015
On count 3 of the second trial the appellant is sentenced to a term of 9 months to commence on 24 September 2017
On count 4 of the second trial the appellant is sentenced to a term of 9 months to commence on 24 June 2018
On count 5 of the second trial the appellant is sentenced to a term of 4 months to commence on 24 June 2018
The Territory sentence will commence on 24 September 2010 and be of 6 years. The Appellant will be eligible for parole on 24 September 2014.
The sentence for the federal offences will commence on 24 September 2014 and be of 4 years and 6 months. The Appellant will be eligible for parole on 24 December 2015.
The total effective sentence, combining the Territory and federal offences, is 8 years and 6 months with what is, in effect, a minimum term of five years and 3 months to be served before the Appellant’s possible release.
| I certify that the preceding ninety five [95] numbered paragraphs are a true copy of the Reasons for Judgment of the Court of Appeal. Associate: Date: |
7
15
8