Fedele v R

[2015] NSWCCA 286

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Vincenzo Jon Fedele v R [2015] NSWCCA 286
Hearing dates:	21 October 2015
Date of orders:	04 March 2016
Decision date:	13 November 2015
Before:	Hidden J at [1] Davies J at [75] Adamson J at [76]
Decision:	Leave granted, appeal allowed. Sentences in District Court quashed. Applicant sentenced on each charge to concurrent terms of 10 months imprisonment, to be served by way of ICO.
Catchwords:	CRIMINAL LAW – application for leave to appeal against sentence – accessing and possessing child pornography – full time custodial sentences – whether appropriate consideration given to alternatives to full time imprisonment
Legislation Cited:	Crimes Act 1900 (NSW) Crimes Act 1914 (C’th) Crimes (Administration of Sentences) Regulation 2014 Crime (Sentencing Procedure) Act 1999 (NSW) Crimes Regulations 1990 (C’th) Criminal Code 1995 (C’th) Migration Act 1958 (C’th)
Cases Cited:	Dadson v O’Brien [1998] TASSC 75 Douar v R [2005] NSWCCA 455, 159 A Crim R 154 DPP (C’th) v Guest [2014] VSCA 29 DPP v Smith [2010] VSCA 215 EF v R [2015] NSWCCA 36 Fitzgerald v R [2015] NSWCCA 266 Hili and Jones v The Queen [2010] HCA 45, 242 CLR 520 James v R [2009] NSWCCA 62 Kanengele-Yondgo v R [2006] NSWCCA 354 Lowe v The Queen (1984) 154 CLR 606 Mouscas v R [2008] NSWCCA 181 Pearce v The Queen (1998) 194 CLR 610 R v Booth [2009] NSWCCA 89 R v Cacciola (1988) 104 A Crim R 178 R v De Leeuw [2015] NSWCCA 183 R v Engeln [2014] QCA 313 R v Foster [2001] 33 MVR 565 R v Gent [2005] NSWCCA 370, 162 A Crim R 29 R v Gordon; Ex Parte DPP (C’th) [2009] QCA 209 R v JCE [2000] NSWCCA 498, 120 A Crim R 18 R v Pogson & Ors [2012] NSWCCA 225, 82 NSWLR 60 R v Porte [2015] NSWCCA 174 R v Verburgt [2009] QCA 33 R v Wegener [1999] NSWCCA 405 R v Zamagias [2002] NSWCCA 17 Sabel v R; R v Sabel [2014] NSWCCA 101 Smit v State of Western Australia [2011] WASCA 124 Warnakulasuriya v The Queen [2009] WASC 257 Whelan v R [2012] NSWCCA 147 Wong v The Queen [2001] HCA 64; 207 CLR 584
Category:	Principal judgment
Parties:	Vincenzo Jon Fedele (applicant) Regina (respondent /Crown)
Representation:	Counsel: T Game SC with G Huxley (applicant) K Ginges (respondent/ Crown)     Solicitors: Uther Webster & Evans Solicitors (applicant) Solicitor for Public Prosecutions (respondent/ Crown)
File Number(s):	2014/174069
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 11 September 2015 Before: Judge Frearson SC File Number(s): 2014/174069

Judgment

1. HIDDEN J: The applicant, Vincenzo Jon Fedele, pleaded guilty in the District Court to child pornography offences under Commonwealth and State law. The Commonwealth charge was using a carriage service to access child pornography, an offence under s 471.19(1) of the Criminal Code (C’th), carrying a maximum sentence of 15 years imprisonment. The State offence was possessing child abuse material, an offence under s 91H(2) of the Crimes Act 1900, carrying a maximum sentence of 10 years imprisonment. For the State offence he was sentenced to a fixed term of imprisonment for 6 months dating from the date sentence was passed, 11 September 2015. For the Commonwealth offence he was sentenced to a concurrent term of imprisonment for 12 months, to be released after 6 months upon entering into a recognizance pursuant to s 20(1)(b) of the Crimes Act 1914. He seeks leave to appeal against those sentences.

Facts

2. An adequate summary of the facts found by the sentencing judge is set out in the Crown submissions, as follows:

(a)   The AFP executed a search warrant on the applicant’s residential premises on 11 June 2014, at a time when the applicant was present;

(b)   An ASUS laptop computer was located in the applicant’s bedroom. The applicant informed the AFP that it was his computer, which he had purchased in 2007. The applicant confirmed that the computer was password protected and that no-one other than him had access to the computer;

(c)   The applicant also informed the AFP that he had used a program called FrostWire to download adult pornography, music and programs;

(d)   The applicant said he had not used the computer since 2010;

(e)   A review of the computer revealed the presence of images and videos identified by AFP members as child pornography;

(f)   The computer was forensically analysed and revealed five picture files and five video files. Two of the video files were classified as “category 4” in the ANVIL scheme, which includes penetrative sexual activity between children and or children and adults. Category 2 includes non-penetrative sexual activity between children or solo masturbation by a child, and category 3 includes non-penetrative sexual activity between children and adults;

(g)   Two files had been accessed on 23 June 2011 and two accessed on 10 February 2012;

(h)   Forensic analysis of the computer showed that on 23 June 2011 the applicant had used search terms “preteen” and “Preteen Models”, when one of the images classified as child pornography was accessed. The following websites were also accessed:

i.   TOP Preteen No Nude Models/PRETEEN MODELS

ii.   PRETEEN MODELS

iii.   Sylvia Preteen Model

iv.   Sylvia Preteen Model 1 Preteen Models

v.   PRETEEN MODELS Atom Feed

vi.   PRETEEN MODELS Young and Sweet Cuties Comments Feed

(i)   FrostWire is a peer to peer file sharing program used to directly share files between computers. FrostWire was used to obtain one image file and the five video files;

(j)   Of the five video files, 2 were category 2, 1 was category 3 and the remaining 2 were category 4 of the ANVIL scheme.

(k)   Analysis of the computer also revealed that the applicant had entered the search term “preteen” (26 times) and “pthc” (3 times) into Google search engine using Internet Explorer. “Pthc” stands for “preteen hard core”;

(l)   There were also a further 49 “thumbnail” files located on the computer which were classified as child pornography. The thumbnail files were consistent with picture files that had been previewed or opened using the Windows operating system;

(m)   The access and possession of the material was for the applicant’s personal purposes only (that is, not for re-distribution or any commercial purpose).

3. Although it is not specified in the statement of facts which was before his Honour, it appears that access occurred on five occasions between June 2011 and July 2012 and a sixth occasion in March 2014. The possession charge related to six of the files the subject of the access charge. The occasions on which the applicant entered certain search terms, referred to in (k) above, and the thumbnail files referred to in (l) are not the subject of either charge, but are properly to be taken into account.

Subjective case

4. The applicant was aged between 19 and 22 over the period of the offending. He is now 23. Apart from a driving offence, of no significance for present purposes, he has no criminal history. Before the sentencing judge were reports of a psychologist, Mr Patrick Sheehan, a pre-sentence report, a number of favourable references, including one from his fiancée, and a statement by the applicant himself. This material made out what his Honour described as a “very strong” subjective case.

5. The applicant had a stable upbringing and a good relationship with his parents and siblings who, despite being shocked by his offending behaviour, remained supportive of him. He was educated to HSC standard and completed one semester of a university degree. He had been working in his family’s fish wholesale business and, to some extent, as a professional musician. He had been in a relationship with his fiancée for almost four years and, although deeply distressed at his offences, she also was supportive of him.

6. The applicant’s offending behaviour began in 2011 during a difficult period of his life. In her reference his fiancée revealed that at that early stage of their relationship she discovered that she had stage 3 HPV, which was on the verge of becoming cervical cancer if not treated, and that the applicant shouldered the burden of her care. She described this as a “very costly, exhausting and difficult time in both our lives.” He took her to medical consultations, helped her financially, and supported her emotionally.

7. In a report of 11 May 2015 the psychologist, Mr Sheehan, recorded the applicant’s account that the period leading to the onset of the offences in 2011 was an unhappy time. He described difficulties in his relationship, in his work, in his pursuit of his university course and contact with his school friends. He said that he was looking at online pornography frequently and that his sexual interests were becoming “diverse, including themes of lesbianism and group sex.” He added that most of his online pornography use was “mainstream adult material”, and was not able to explain what purpose the child sexual material served for him. He denied that he found those pornographic images sexually arousing or that he had “any intent or interest in actual sexual contact with children.”

8. He had more to say about his motivation to the author of the pre-sentence report, Ms Jodie McMahon, whose report is dated 30 July 2015. To her he also described the difficult period of his life leading up to his involvement in the offences. He said that his possession of child pornographic material was not for sexual gratification but, rather, for his “guilty pleasure seeing people in shittier positions than me.” He stated that it “made him feel better witnessing people suffer or he would treat people poorly to make them feel bad.” He added that he was “not proud of the person he was at that time.”

9. In his statement to the court he wrote:

“… my actions in the past were completely selfish and reckless. I was a very bitter and angry teenager. Over the years I had done only things to benefit myself. I used other people’s misfortune to help me feel better. If I was feeling really down, or depressed and even hopeless; I would watch this type of material, amongst with all the other different types of pornography, to make me feel better.”

He went on to express his remorse, adding that “I do not want to be that person.”

10. In July 2012, his fiancée returned to her country of origin, Canada. He joined her there in September of that year, and lived with her and her parents for over a year before the two of them returned to Australia, as he put it in his statement, “to start a new life together.” He acknowledged having accessed the offending material on one occasion in 2014, after their return, but said that he did so because he was curious to see if Frostwire still worked and “stopped very quickly” because he knew that “this was not what I wanted to do ever again.” This was the sixth occasion of access referred to above.

11. The effect of the references, including that of his fiancée, was that the applicant was an honest, respected, dependable and kind person, and that the offences were entirely out of character. His remorse for his offending behaviour emerges in this material and in the reports. Mr Sheehan observed that during his interview with him he “spoke with obvious discomfort and shame about his offences”. In the pre-sentence report Ms McMahon recorded that he “appears to accept responsibility for his actions and expressed an understanding of the seriousness of the offences”, and that he “was aware of the impact of his offending on the victims of pornography and the wider community.”

12. In his statement the applicant wrote:

“I am sorry that I have accessed and downloaded child pornography. I am well aware that in accessing and as a downloader of this material, that I have encouraged the notion that there is a place for child pornography and child abuse in this world and for this I am ashamed and sorry. I do not want to be part of that. I don’t … want to be part of abuse on children. I am also truly sorry for the suffering that I have caused to my fiancée … , my family and my friends.”

13. Mr Sheehan, well-known and respected in the area of forensic psychology, considered the danger of the applicant re-offending by reference to static and dynamic risk factors and concluded that he “has almost none of the characteristics associated with re-offending as identified in the literature.” In expressing his opinion at the conclusion of his first report, Mr Sheehan wrote:

“Mr Fedele has very few of the features commonly associated with this type of offences. There are none of the background factors of social inadequacy, feelings of sexual intimidation towards adult partners fuelling emotional/sexual identification with less threatening targets such as children, or disproportionate overuse of the internet, that are in my experience, all common precursors to the emergence of accessing child abuse material online. Mr Fedele has described a period of despondency, boredom, aimlessness and absence of fulfilment in the period preceding the onset of the offences, as well as evolving themes of sexual interest. These may be significant background factors contributing towards his decision to seek access to child abuse material. He has work to do in terms of overcoming his evident shame and discomfort to provide a useful account of his own behaviour. These insights can be targeted in psychological treatment.”

14. In a supplementary report Mr Sheehan recorded that the applicant had attended 8 treatment sessions between May and July 2015. It is sufficient to say that he concluded that the applicant had “participated well in the treatment process, particularly given that he had only 8 sessions to cover a broad range of difficult issues.” Mr Sheehan continued:

“He has made a positive start to his treatment journey, and would appear to have a solid grasp on the range of behaviours that have contributed as background factors to the index offences. In my expert opinion, all evidence suggests that Mr Fedele’s risk of re-offending is low.”

15. In the pre-sentence report Ms McMahon noted the applicant’s progress in therapy, and observed that he “appears to have a strong support system within the community that will continue to encourage him to address his offending behaviour in an effort to adapt to a lawful community lifestyle.” She considered that he would benefit from a period of supervision and assessed him as suitable for a community service order.

Remarks on sentence

16. As I have said, his Honour acknowledged the applicant’s strong subjective case. He accepted that he was remorseful, that he had good prospects of rehabilitation and that he was unlikely to re-offend in this way. The applicant had pleaded guilty in the Local Court, and his Honour allowed a 25% reduction of sentence for the State offence in recognition of the utilitarian value of the plea, and a 20% reduction for the Commonwealth offence for his willingness to facilitate the administration of justice.

17. Nevertheless, his Honour did not find in the subjective material, including the psychiatric reports, any adequate explanation of the applicant’s conduct or any amelioration of the gravity of it. Having regard to the nature of the conduct and the limited quantity of material involved, he assessed the Commonwealth offence as between the low end and mid-range of objective gravity, and reached the same conclusion in relation to the State offence. His Honour also recognised “some commonality” between the offences, reflected in the imposition of concurrent sentences.

18. That said, his Honour referred to the prevalence of offences of this kind, the difficulty in detecting them, and the importance of general deterrence. As to the State offence, he noted the video files in category 4 showing penetrative sexual activity between an adult and a child, which he described as “completely disturbing” and “quite sickening.” He also noted that the applicant had not been entirely frank in his admissions to police in that he claimed at that stage that he had not used his computer since 2010.

19. As to the applicant’s stated reason for his involvement in the offences, his Honour was unable to arrive at any conclusion about the assertion that he derived no sexual pleasure from the material. He accepted that the reason was that which the applicant had proffered in the pre-sentence report, but described it as “callously reprehensible.” He later said that the facts “involve a very deliberate accessing of child pornography for the proffered reason and it seems to me that the circumstances of this case are particularly reprehensible and particularly heinous.”

20. In the course of submissions on sentence, senior counsel then appearing for the applicant (who did not appear in this court) submitted that his Honour should deal with him in such a way as to allow him to remain in the community. She argued that it would be “well within range” to impose suspended sentences but that “it really shouldn’t go much higher than that.” This was a reference to the power to suspend a sentence under s 12 of the Crime (Sentencing Procedure) Act 1999 (NSW), and to direct the release of a person forthwith under s 20(1)(b) of the Crimes Act (C’th). She submitted that an intensive correction order was not called for, given the applicant’s response to counselling. In answer to a query from his Honour, the Crown prosecutor (who also did not appear in this court) said that suspended sentences would not be considered manifestly inadequate. The Crown’s position was that custodial sentences were appropriate for offences of this kind, but the “mode” of such a sentence was a matter for his Honour.

21. On this issue his Honour expressed his conclusion in his remarks as follows:

“I have thought long and hard about what sentences I should impose and whether I can suspend the sentences and, in my view, there is no alternative to custody. No alternatives would accommodate the purposes of sentencing in this particular case. I propose to impose a custodial sentence in each case.

I have been urged to suspend the sentence in each case and that is a matter I have pondered on for a number of weeks now. It is tempting to suspend a sentence so that a young man doesn’t have to go to gaol, but weighing all the considerations up, it seems to me that suspending a sentence wouldn’t adequately accommodate the purposes of sentencing and I don’t propose to fully suspend the sentence.”

His Honour had earlier considered the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act.

22. It is this passage which is at the heart of the present application.

The application

23. Mr Game SC, who appeared with Ms Huxley for the applicant, argued 4 grounds of the application. They are closely related and centre upon the availability of alternatives to imprisonment or, at least, terms of imprisonment to be served full time. Grounds 1 and 2 assert that his Honour failed to apply relevant statutory provisions, s 5 of the Crimes (Sentencing Procedure) Act (NSW) and s 17A of the Crimes Act (C’th). Ground 3 complains that his Honour failed properly to consider alternatives to full time imprisonment and ground 4 is that, because such an alternative was not adopted, the sentences are manifestly excessive.

Grounds 1 & 2 – the relevant statutory provisions

24. Section 5 of the Crimes (Sentencing Procedure) Act (“CSP Act”) provides:

“5   Penalties of imprisonment

(1)    A court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.

(2)   A court that sentences an offender to imprisonment for 6 months or less must indicate to the offender, and make a record of, its reasons for doing so, including:

(a)   its reasons for deciding that no penalty other than imprisonment is appropriate, and

(b)   its reasons for deciding not to make an order allowing the offender to participate in an intervention program or other program for treatment or rehabilitation (if the offender has not previously participated in such a program in respect of the offence for which the court is sentencing the offender).

(3)   Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions.

(4)   A sentence of imprisonment is not invalidated by a failure to comply with this section.

(5) Subject to sections 12 and 99, Part 4 applies to all sentences of imprisonment, including any sentence the subject of an intensive correction order or home detention order.”

25. Section 17A of the Crimes Act (C’th) (“Crimes Act”) provides:

“17A   Restriction on imposing sentences

(1)   A court shall not pass a sentence of imprisonment on any person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.

(2)   Where a court passes a sentence of imprisonment on a person for a federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, the court:

(a)   shall state the reasons for its decision that no other sentence is appropriate; and

(b)   shall cause those reasons to be entered in the records of the court.

(3)   The failure of a court to comply with the provisions of this section does not invalidate any sentence.

(4)   This section applies subject to any contrary intention in the law creating the offence.”

26. It will be seen that the two provisions are to the same effect, although subs (2) of the State provision specifically addresses sentences of 6 months or less. Both sections provide that failure to comply with their terms does not invalidate the sentence, but this does not mean that such a failure cannot give rise to appellable error. In respect of the State provision so much is spelled out in s 101A of the CSP Act. In respect of the Commonwealth offence it is established by authority: R v Engeln [2014] QCA 313 at [45] (citing the earlier decision of that court in R v Verburgt [2009] QCA 33).

27. In terms of sentencing options Mr Game described the present case as “borderline”, arguing that alternatives to imprisonment – certainly to full time imprisonment – loomed large. Both the State and Commonwealth provisions required his Honour to determine whether no penalty other than imprisonment was appropriate. Here the term “imprisonment” includes a suspended sentence under s 12 of the CSP Act: R v JCE [2000] NSWCCA 498, 120 A Crim R 18, at [15] (21), R v Zamagias [2002] NSWCCA 17 at [25]. Likewise, the power to suspend a sentence under s 20(1)(b) of the Crimes Act arises only once a court has determined to impose a sentence of imprisonment. Equally, an intensive correction order (“ICO”) is a means of serving a sentence of imprisonment: s 7 of the CSP Act, as is home detention: s 6. So much is also apparent from s 5(5), set out above.

28. Accordingly, his Honour had to consider the availability of options other than imprisonment, such as a community service order or a good behaviour bond. Mr Game noted the submission of his predecessor in the sentence proceedings that the applicant should be allowed to remain in the community and the fact that he was said in the pre-sentence report to be suitable for community service.

29. Referring to the passage from the remarks on sentence quoted at [21] above, Mr Game argued that his Honour had done no more than express his conclusion that suspended sentences were not appropriate as they would not accommodate “the purposes of sentencing in this particular case.” He was silent as to the possible alternatives to imprisonment, the consideration of which was required by the State and Federal provisions. Indeed, s 17A(2)(a) of the Crimes Act expressly directed him to state the reasons for his decision that no sentence other than imprisonment was appropriate.

30. Moreover, Mr Game argued, in sentencing the applicant to imprisonment for 6 months for the State offence, his Honour failed to meet the requirement set by s 5(2) of the CSP Act, that is, to give reasons for deciding that no other penalty was appropriate and for not making an order allowing the applicant “to participate in an intervention program or other program for treatment or rehabilitation … .”

31. In response, the Crown prosecutor in this Court submitted that in his remarks, read as a whole, his Honour had given adequate reasons for determining that there must be a term of imprisonment and for ruling out alternatives to that course. He noted his Honour’s observations, referred to above, about the gravity of the offences and the need for general deterrence.

32. He cited the Western Australian decision of Warnakulasuriya v The Queen [2009] WASC 257, an appeal from a wholly suspended sentence of 3 months passed upon three men for a charge of escaping from an immigration detention centre, an offence under the Migration Act 1958 (C’th). Before the magistrate the appellants had sought a discharge without conviction under s 19B of the Crimes Act. The magistrate refused to do so, referring to the need for a deterrent sentence and finding that the prerequisites for discharge under s 19B were not established. One of the grounds of appeal was that the magistrate had failed to comply with s 17A of the Crimes Act by not considering other alternatives to imprisonment. Hall J held that his Honour’s remarks on sentence sufficiently identified his reasons for imposing a term of imprisonment. His Honour said at [33]:

“… s 17A(2) requires that reasons be stated for a decision that no other sentence but one of imprisonment is appropriate but does not stipulate the content of those reasons nor does it specifically require that the magistrate run through a checklist of possibilities and state why each of them is not appropriate in the circumstances of the case. The reasons of the magistrate have to be examined in their totality and provided that, when so examined, they adequately explain why no other sentence but one of imprisonment is considered appropriate s 17A(2) is satisfied.”

33. Hall J referred at [34] to a Tasmanian decision to the same effect in Dadson v O’Brien [1998] TASSC 75, in which Wright J said:

“It may be observed at the outset that s 17A(2)(a) does not specifically require the sentencing court to isolate such reasons from other considerations which it has taken into account or to compendiously list those factors as distinct from other factors which have moved the court to take the course of imprisoning the offender. In short, s 17A does not require the court to give separate and distinct reasons for concluding that a sentence of imprisonment is the only appropriate response to the offence being considered, if, in the course of discussing factors relevant to the question of sentence generally, the judicial officer indicates those features which he regards as significantly enhancing the criminality of the offence or the culpability of the offender.

...

In my opinion, it would be a rare case in which s 17A will afford a basis for impugning a sentence where it is plain that the sentencing judge or magistrate has taken account of all relevant matters and has justifiably concluded that either a suspended or immediate custodial sentence is required.”

34. Having referred to this Tasmanian decision, Hall J continued at [35]:

“I agree with the views expressed by Wright J and, accordingly, it cannot be said that merely because the learned magistrate did not specifically refer to options other than a s 19B order or imprisonment that there was failure to provide the reasons required by s 17A(2). In my view, it is clear from the learned magistrate's reasons that he considered that a sentence of imprisonment was the only appropriate disposition in the circumstances of this case. It is evident that he was conscious that other possibilities were open when dealing with offences of this type but did not consider them appropriate in the particular circumstances of this case.” 

35. This was also the approach of the Queensland Court of Appeal in R v Engeln (supra). In that case leave to appeal was sought against full time custodial sentences for a number of offences under s 474 of the Criminal Code of using a carriage service. Here also, a ground of the application was the asserted failure of the sentencing judge to comply with s 17A of the Crimes Act. Henry J, with whom Fraser JA and Mullins J agreed, referred at [46] to the relevant part of the sentencing judge’s reasons. After summarising the nature of the applicant’s offences and referring to the importance of deterrence, the judge said that he had had regard “to the relevant provisions of the Crimes Act (C’th)”, and expressed the view that “sentences of imprisonment are the only appropriate sentences to be imposed.” Henry J continued at [47]:

“It is a formidable obstacle to this ground of appeal that the sentencing judge indicated his satisfaction that sentences of imprisonment were the only appropriate sentences. His Honour did not articulate the nature of the other sentences available under the Commonwealth sentencing regime. However, his decision that sentences of imprisonment were ‘the only appropriate sentences’ necessarily means he considered that no other sentences, vis those not involving a sentence of imprisonment, would have been appropriate.”

36. The Crown prosecutor submitted that the approach articulated in these decisions should be applied in the present case. When his Honour said in the passage in his remarks quoted at [21] above that no alternatives would accommodate the purposes of sentencing, he should be taken, in respect of both the State and Commonwealth offences, to have decided that only imprisonment was appropriate and to have ruled out any possible alternative. Accordingly, the requirement of both s 5(1) of the CSP Act and s 17A(1) of the Crimes Act had been met.

37. As to s 5(2) of the CSP Act, the Crown prosecutor argued that his Honour had seen the Commonwealth offence as the more serious of the two and determined and it must attract a full time custodial sentence. As a result, having ruled out alternatives to imprisonment, his remaining sentencing options for the State offence were limited. Because of the custodial component of the sentence for the Commonwealth offence he could not have imposed a suspended sentence and the applicant could not have been assessed as suitable for an ICO or home detention. The Crown prosecutor also noted that the 6 month sentence for the State offence was wholly concurrent with the sentence for the Commonwealth offence, so as not to extend beyond the custodial component of that sentence. Thus, he argued, the sentence for the State offence was the most lenient outcome available.

38. The Crown prosecutor argued that any breach by his Honour of s 5 was no more than technical, and not such as to merit intervention by this Court. He cited, by way of analogy, Kanengele-Yondgo v R [2006] NSWCCA 354 at [37] – [40]. In that case the sentencing judge had passed a sentence without a non-parole period but did not give reasons for declining to set a non-parole period, as required by s 45(2) of the CSP Act. However, the judge had accumulated upon that sentence a sentence with a non-parole period in respect of a second offence. It was apparent that, as is commonly the case, his Honour had done so as to achieve an aggregate sentence with an effective non-parole period marking the criminality of the two offences. It was in those circumstances that Hislop J, delivering the leading judgment in the Court of Criminal Appeal, described the failure to comply with s 45(2) as “purely technical” and “not such as to merit any interference by this Court with the sentence.” If there be error in the present case, it is not of that kind.

39. In my view, a fair reading of his Honour’s remarks as a whole does disclose that he concluded that there was no alternative to imprisonment because of the disturbing features of the offences which he identified, referred to at [18]-[19] above, together with the need for general deterrence. Accordingly, this was a reasoned decision and the requirements of s 5(1) of the CSP Act and s 17A(1) and (2) of the Crimes Act were met. Consideration of alternatives to full time imprisonment is another matter, dealt with by the next ground of appeal.

40. However, I cannot accept the Crown prosecutor’s arguments in relation to s 5(2) of the CSP Act. Mr Game pointed out that, although the longer sentence was for the Commonwealth offence, his Honour pronounced sentence in respect of the State offence first. In doing so, he did not address the issues raised by subs (2) at all. Even if it appears to a Court, in terms of subs (1), that there is no alternative to a sentence of imprisonment, subs (2) requires further consideration of that issue if the term of imprisonment is to be 6 months or less. Mr Game rightly described the subsection as “an anti-short sentence provision”, requiring the court to be “very careful about sentencing people to gaol for short periods of time.” Particularly is this so when a court is dealing with a young offender of prior good character.

41. His Honour gave no reasons for imposing a 6 month term, as expressly required by subs (2), and it is apparent that he did not consider the provision. It is no answer to say, pragmatically, that that term was wholly concurrent with the sentence for the Commonwealth offence and made no difference to the overall outcome. Such an approach would be inconsistent with the need to assess the appropriate sentence for each offence emphasised by the High Court in Pearce v The Queen (1998) 194 CLR 610. I am satisfied that his Honour was in error in this respect.

Ground 3 – Alternatives to full time imprisonment

42. Douar v R [2005] NSWCCA 455, 159 A Crim R 154, was a case concerned with periodic detention. However, in the course of his judgment Johnson J, with whom McClellan CJ at CL and Adams J agreed, considered in general terms the process of a court’s determination whether imprisonment should be imposed and, if so, the manner in which it should be served. In doing so his Honour referred to a case concerned with periodic detention: R vWegener [1999] NSWCCA 405. However, he also referred to s 5 of the CSP Act and two cases concerned with suspended sentences: R v Foster [2001] 33 MVR 565 and Zamagias (supra).

43. His Honour summarised the position at [70] – [72] (165 – 166) as follows:

“70 The first question to be asked and answered is whether there are any alternatives to the imposition of a term of imprisonment. Section 5 prohibits a Court from imposing a sentence of imprisonment unless the Court is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. At this stage in the process, the only consideration is whether a sentence of imprisonment should be imposed, and not the manner in which that sentence of imprisonment is to be served: Zamagias at [25].

71 The second step is reached where the Court has determined that no penalty is appropriate other than a sentence of imprisonment. The Court is next to determine what the term of that sentence should be. This has been regarded as the first step of a two-step approach: Foster at [30]; Zamagias at [26]. The determination of the term is to be made without regard to whether the sentence will be immediately served or the manner in which it is to be served. This is because any of the alternatives available in respect of a sentence of imprisonment can only be considered once the sentence has been imposed. It follows that the term of the sentence cannot be influenced by what order might be made after the sentence has been imposed. The sentence cannot be increased because it is to be served by way of periodic detention: Wegener at [22]; Zamagias at [26].

72 The third stage is reached once the length of the sentence of imprisonment has been determined. The Court is then to consider whether any alternative to full-time imprisonment is available in respect of that term and whether any available alternative should be utilised. The availability of an alternative to full-time custody will generally be governed by the length of the term that has been determined, subject to the restrictions or preconditions imposed by the legislature on a particular sentencing alternative. The appropriateness of an alternative to full-time custody will depend upon a number of factors; one of importance being whether such an alternative would result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purpose of punishment. The Court in choosing an alternative to full-time custody cannot lose sight of the fact that the more lenient the alternative, the less likely it is to fulfil all the purposes of punishment: Zamagias at [28].”

44. I have dealt with the first of the questions referred to by his Honour, whether there are any alternatives to the imposition of a term of imprisonment. What is at issue under this ground are the second and third steps, referred to by his Honour at [71] as the “two-step approach”. As to that, his Honour said [74]:

“74 Having determined the appropriate sentence, the Court must explain the sentence imposed. This may require, in an appropriate case, some discussion of the alternatives available and why a particular alternative has been chosen. However, it is unnecessary that a sentencing court expressly state that it has applied these two steps in arriving at the sentence imposed. In particular, merely because a court has not expressly indicated that it has taken the two-step approach to the determination of the sentence of imprisonment, it does not follow that it has failed to carry out the sentencing exercise in this manner: Zamagias at [30].”

45. That passage should be read bearing in mind an observation his Honour made earlier, at [63]:

“63 However, the nature of the sentence imposed, and the failure to record that a two-stage approach has been taken, may lead the Court to examine carefully the findings made by the sentencing Judge to determine whether the sentence is erroneous: Foster at paragraph 35; Zamagias at [30].”

46. The requirement that the term of a sentence be decided before determination of the manner in which it is to be served was described by Mr Game, also rightly, as an “anti-tailoring provision.” There is no restriction on the length of the term of imprisonment that can be suspended under s 20(1)(b) of the Crimes Act. However, the power to suspend a sentence under the CSP Act is confined to sentences of 2 years or less: s 12(1), as is the power to make a sentence the subject of an ICO: s 7(1). It is only a term of imprisonment of 18 months or less which may be directed to be served by way of home detention: s 6(1). An ICO or home detention are available in respect of Commonwealth offences: s 20AB of the Crimes Act, reg 6 of the Crimes Regulations 1990 (C’th).

47. As Johnson J made clear in Douar at [71], citing the judgment of Howie J in Zamagias at [26], a court must not increase an otherwise appropriate sentence because it can be accommodated by one of those alternatives, nor should it decrease an otherwise appropriate sentence so as to make one of them available. Equally, as Mr Game pointed out, a court should not pass a short full time term of imprisonment for an offence, to be served concurrently with another full time sentence, when that offence should properly be dealt with by a longer term of imprisonment to be served by one of the alternatives to full time custody.

48. Plainly enough, his Honour did not adopt the two step approach in the present case. As is apparent from the passage of his remarks quoted at [20] above, his Honour ruled out suspended sentences and determined, without more, that custodial sentences must be imposed. He then proceeded to pass sentence for each of the offences. As it happens, the length of the sentence for each offence was such that the alternatives not only of suspended sentences but also an ICO and home detention were available. The gravamen of this ground is that his Honour’s reasons disclose that he failed adequately to consider suspending the sentences and made no reference at all to the options of an ICO or home detention.

46. Here also, the Crown prosecutor responded that the effect of what his Honour said in the quoted passage, in the context of the remarks as a whole, was that the offences called for terms of imprisonment and that none of the alternatives to their being served full time was appropriate. He argued that his Honour’s specific reference to the possibility of suspending the sentences arose from the fact that sentencing submissions had focused upon that option, but this did not mean that his Honour overlooked the other two options. Home detention was not raised in submissions but an ICO was.

47. Indeed, the Crown prosecutor questioned whether home detention would have been available. He referred to s 76 of the CSP Act which provides that home detention is not available for certain offences. Among them are “sexual assaults of adults or children or sexual offences involving children”: par (b). He submitted that the present offences could be classified as “sexual offences involving children.” The question was dealt with only briefly in submissions, and I was not referred to any authority on it. I incline to the view that the paragraph is directed to sexual activity with children rather than accessing or possessing material depicting it. However, I do not find it necessary to express any concluded view about the matter.

48. In my view, this ground is made out. Consideration of alternatives to full time custody was at the forefront of this sentencing exercise. I have referred at [20] above to the acknowledgment by the Crown prosecutor before his Honour that suspended sentences were not beyond the pale. Of course, his Honour was not bound by that acknowledgement, but it heightened the need for reasons to be given for rejecting not only suspended sentences but the other alternatives. Even if the submission of the Crown prosecutor in this court that home detention was not available is sound, an ICO was another clearly available option. Of course, these options were available to both sentences, and it does appear to me that in respect of the State offence his Honour saw the imposition of a short custodial sentence as a practical approach consistent with his view that concurrent sentences were called for. I am satisfied that, in doing so, his Honour fell into the error identified by Mr Game, that is, imposing a short custodial sentence without considering whether a longer sentence to be served otherwise than in full time custody was the appropriate disposition.

49. His Honour was faced with a difficult sentencing exercise. I am mindful of the heavy burden shouldered daily by District Court judges in sentencing offenders in many and varied matters, and I have no wish to add to the complexities which already attend that process. However, I am satisfied that in respect of the sentences for both offences his Honour’s approach failed to meet the requirements of the legislation and relevant authority.

Re-sentence

53. Having determined that the sentencing process miscarried, it is not necessary to decide the ground that the sentences are manifestly excessive. It is for this Court to re-sentence the applicant in the exercise of its independent discretion.

54. Counsel in the District Court supplied his Honour with summaries of a number of cases, from which a pattern of sentence was sought to be derived, and it appropriate to refer to them. I have not included four of the cases referred to in defence submissions, either because they were cases of markedly different criminality, including disseminating or transmitting child pornography, or cases turning upon particular factual findings or discretionary considerations which put them outside any discernible sentencing pattern.

55. This leaves ten cases, comprising six decisions of this Court, two from Victoria, one from Queensland and one from Western Australia. They are: R v Porte [2015] NSWCCA 174, R v De Leeuw [2015] NSWCCA 183, R v Booth [2009] NSWCCA 89, Mouscasv R [2008] NSWCCA 181, James v R [2009] NSWCCA 62, R v Gent [2005] NSWCCA 370, 162 A Crim R 29, DPP (Cth) v Guest [2014] VSCA 29, DPP v Smith [2010] VSCA 215, R v Gordon; Ex Parte DPP (Cth) [2009] QCA 209, Smit v State of Western Australia [2011] WASCA 124.

56. Of course, regard should be had to these cases on the basis sanctioned by the High Court in Hili and Jones v The Queen [2010] HCA 45, 242 CLR 520, especially at [54]. I do not propose to examine them individually. Most of them involved accessing and possessing child pornography, but in one of those (Guest) there was also a transmission charge. Two of the cases (Booth, Smit) involved possession only, and one (Gent) was a case of importing child pornography.

57. In eight of the cases there were full time prison terms, either affirmed or imposed after a successful Crown appeal. Head sentences ranged between 18 months and 3 years, and minimum terms (non-parole periods or with recognizance release orders) between 6 months and 1 year and 9 months. In the remaining two cases Crown appeals against alternatives to full time imprisonment were unsuccessful. In DPP v Smith there was a wholly suspended sentence on one count and the Victorian equivalent of an ICO on the other. In Gordon there were concurrent suspended sentences on two counts.

58. All these cases were objectively more serious than the present case. In particular, they involved more material, in most cases much more. In Gent a combination of videos and images totalled well into the hundreds. In eight other cases the combination of videos, files and images was in the thousands, in some cases the tens of thousands. This included the cases of Smith and Gordon in which, as I have said, sentences not involving full time imprisonment were upheld. In both those cases the offences were seen as not unduly serious and there was favourable subjective material, including good prospects of rehabilitation.

59. The Crown prosecutor pointed to Booth, in which the amount of offending material, while greater than the present case, was relatively low. In that case, after a successful Crown appeal, a full time sentence of 2 years with a non-parole period of 6 months was imposed. However, that offender was 61 years old with an unfavourable criminal history, having served sentences of imprisonment for possession of child pornography and sexual offences committed against his son.

60. In Porte, Johnson J (with whom Leeming JA and Beech-Jones J agreed) examined the sentences passed in some previous cases (including some referred to in the present case) at [152]-[153]. Again, those cases, all resulting in terms of full time imprisonment, were considerably more serious than the present case, as was Porte itself.

61. This is not to deny that offences of this kind are serious and prevalent, and that considerations of denunciation and deterrence are important in sentencing for them. This is well established by authority, as are the various factors which fall to be considered in assessing the gravity of a particular offence. Helpful reference of those authorities, here and interstate, is to be found in the judgment of Johnson J in Porte at [59]-[72]. His Honour revisited authorities on the issue in De Leeuw at [70]-[72], as did Hoeben CJ at CL more recently in Fitzgerald v R [2015] NSWCCA 266 at [33]-[34].

62. In this line of authority general deterrence is sometimes described as “paramount” or “the primary sentencing consideration.” It is said that, absent exceptional circumstances, a sentence of imprisonment involving full time custody is “ordinarily” warranted. It is also said that less weight is given than in other cases to the fact that an offender has prior good character and favourable prospects of rehabilitation.

63. These pronouncements are a guide to the exercise of discretion in child pornography cases; but, of course, are not prescriptive of the result in a particular case, which must turn on its facts and circumstances. In EF v R [2015] NSWCCA 36, Simpson J (as she then was) referred to the line of authority that, in the absence of exceptional circumstances, a full time custodial sentence should be imposed upon an offender who has been substantially involved in the supply of prohibited drugs. Her Honour said at [10]:

“Nothing in any of those decisions obviates the need for sentencing judges to consider the circumstances of each case individually, including the availability (in a practical sense) of alternatives to full-time custody.”

At [11], her Honour cited a passage in the judgment of Priestley JA in R v Cacciola (1988) 104 A Crim R 178 at 183-4. His Honour referred to the proposition that drug dealing to a substantial degree calls for the imposition of a prison sentence as something which the Court continues to consider as “the proper approach to sentencing, always bearing in mind the need to consider every convicted person’s case on its own merits and in its own circumstances.”

64. The proposition that offences such as the applicant’s should ordinarily be visited with a custodial sentence should be approached in this way. In Guest (supra) the leading judgment was delivered by Coghlan JA, with whom Weinberg and Whelan JJA agreed. At [24], albeit speaking of a sentencing regime before the maximum sentence for the relevant Commonwealth offences was increased, his Honour said, “I accept that not all offenders who possess child pornography, or for that matter cause it to be transmitted, must necessarily receive an immediate custodial sentence.”

65. In Cacciola (at 184) Priestley JA added that what he described as the “rule” governing sentence for the substantial supply of prohibited drugs “must be taken into account and given serious consideration by sentencing judges on every occasion when there is a case of this kind, although the sentencing judge must, in the end, always exercise his or her own discretion, but the sentencing policy or rule is not to be neglected or put out of sight, nor should there be excessively liberal interpretation of the phrase ‘exceptional circumstances’.”

66. I approach the present case guided by this authority. I am mindful of the repeated pronouncements that offences of this kind should ordinarily be visited with a full time custodial sentence and of the factors, particularly general deterrence, which are the foundation of that approach. In the present case I agree with his Honour that the objective gravity of each offence is between the low end and the mid-range, and that terms of imprisonment are called for. In my view, the appropriate term for each offence is 12 months, and I also agree with his Honour that it is appropriate that those terms be served concurrently.

67. However, the particular features of this case persuade me that, while terms of imprisonment are called for, full time custody is not. Terms of imprisonment to be served by way of an alternative to full time custody are by no means devoid of deterrent effect, both personal and general. In this case I am satisfied that such an alternative is appropriate.

68. I have reached that conclusion with regard, firstly, to the limited amount of access to pornographic material and the relatively small amount of material in the applicant’s possession. In that respect I have regard to the matters which were not the subject of the charges, the occasions upon which the applicant entered certain search terms and the thumbnail files. The applicant’s motive for his offending is undoubtedly disturbing and reprehensible, but what is significant is that he does not appear to have been driven by a sexual interest in children and, in the light of the psychological material, is unlikely to reoffend in this way.

69. I have regard, secondly, to his age at the time of the offending, his good character, his undoubted remorse and his promising engagement in psychological counselling. I agree with his Honour’s finding that he has good prospects of rehabilitation, and with his Honour’s assessment of the utilitarian value of his early pleas of guilty. All these favourable subjective matters are deserving of appropriate weight.

70. On re-sentence I would take into account the period of a little over 2 months imprisonment which the applicant has already served. The Court received an affidavit in which he describes the incidents of his incarceration, and from which it is clear that it has been a stressful and chastening experience for him. Giving him credit for that period, I would reduce the sentence of 12 months for each offence to 10 months.

71. I would direct that those sentences be served by way of an ICO, if the applicant is assessed as suitable for such an order. The ICO was examined in the decision of five judges of this Court in R v Pogson & Ors [2012] NSWCCA 225, 82 NSWLR 60. In a joint judgment, McClellan CJ at CL and Johnson J observed at [106] (84) that it is “a substantial punishment to be utilised in an appropriate case”, although “as with all sentencing options which do not involve immediate incarceration, it may also reflect a significant degree of leniency” (citing Whelan v R [2012] NSWCCA 147). Their Honours added at [109]:

“However, as we have noted, the stringent conditions attached to an ICO ensure that an offender subject to such an order is not living a carefree existence amongst the community. An ICO deprives an offender of his or her liberty in a real and not merely fictional sense.”

In EF (supra), a case raising issues similar to the present case, Schmidt J also examined the incidents of an ICO at [49]-[52].

72. In my view, the appropriate sentence on each charge is imprisonment for 10 months, to be served concurrently.

73. I would grant leave to appeal, allow the appeal, and quash the sentences passed in the District Court. I would refer the applicant for assessment as to his suitability for intensive correction in the community, pursuant to Div 3 of Pt 5 of the Crimes (Sentencing Procedure) Act. I would adjourn the proceedings for that purpose and would grant the applicant bail.

74. DAVIES J: I agree with Hidden J.

75. ADAMSON J: I have had the benefit of reading in draft the reasons of Hidden J. I have come to a different view about the grounds of appeal and the appropriate orders. I respectfully adopt Hidden J’s summary of the facts and of the applicant’s subjective case; of the sentencing judge’s remarks on sentence; and his Honour’s identification of relevant provisions outline of applicable principles.

76. Before turning to the grounds, I propose to address the context in which the sentences were imposed. Although the sentencing judge was obliged to impose sentences for each offence, the offending conduct was, effectively, the same conduct, although the elements of the two offences differed. Thus there was no basis for distinguishing, for example, the objective seriousness of the offence under s 471.19(1) of the Criminal Code (Cth) (using a carriage service to access child pornography) (the Commonwealth offence) from that under s 91H(2) of the Crimes Act 1900 (NSW) (being in possession of child pornography) (the State offence). Nor was there any proper basis for distinguishing between the sentences imposed for the two offences other than by reference to the different maximum penalty for the two offences (10 years for the State offence and 15 years for the Commonwealth offence) or by reason of the need to take into account totality.

77. In my view, this feature of the sentencing exercise led the sentencing judge to avoid repetition of concepts where the same matters were relevant to sentencing for the Commonwealth and State offences.

78. In addressing the grounds, I propose to address the second ground before the first since the sentencing judge’s reasons addressed the Commonwealth offence before turning to the State offence.

Ground 2: the sentencing judge failed to apply s 17A of the Crimes Act 1914 (Cth) when imposing a sentence for the Commonwealth offence

79. Section 17A of the Crimes Act 1914 (Cth) (the Commonwealth Crimes Act) required the sentencing judge to consider all other available sentences; and, having considered all other available sentences, pass a sentence of imprisonment only if satisfied that no other sentence was appropriate in the circumstances of the case.

80. In order to explain why I am not persuaded that the second ground (and, indeed, any of the first three grounds) has been made out, it is necessary to reproduce a longer extract from the remarks on sentence than appears in the reasons of Hidden J. Although the paragraphs of Frearson DCJ’s judgment were not numbered, I propose to number them so as to be able to identify particular passages more easily in the reasons that follow.

81. The sentencing judge said:

“[1]   The facts involve a very deliberate accessing of child pornography for the proffered reason and it seems to me that the circumstances of this case are particularly reprehensible and particularly heinous.

[2]   I do find that the Commonwealth matter is an objectively quite serious matter in the range that I have already adverted to. Those who seek pleasure, sexual or otherwise, from the sexual exploitation and degradation of children need to be adequately punished and like-minded persons need to be deterred and particularly when you are talking about children as young as six being treated in this disgusting way.

[3]   I have thought long and hard about what sentences I should impose and whether I can suspend the sentences and, in my view, there is no alternative to custody. No alternatives would accommodate the purposes of sentencing in this particular case. I propose to impose a custodial sentence in each case.

[4]   I have been urged to suspend the sentence in each case and that is a matter I have pondered on for a number of weeks now. It is tempting to suspend a sentence so that a young man doesn’t have to go to gaol, but weighing all the considerations up, it seems to me that suspending a sentence wouldn’t adequately accommodate the purposes of sentencing and I don’t propose to fully suspend the sentence.

[5]   I propose to impose a custodial sentence for the State matter, taking into account the commonality. I impose a sentence of six months imprisonment fixed term from today which will expire on 10 March 2016.

[6] For the Commonwealth matter, I impose a sentence of 12 months imprisonment. I direct the offender be released on 10 March 2016, that is after six months, upon entering into a recognisance pursuant to section 20(1)(b) of the Crimes Act, self in $100 without surety, to be of good behaviour for a period of six months and to appear to be sentenced if called upon to do so in respect to any breach within the said period.”

[Paragraph numbers added.]

82. In my view, his Honour said, and ought properly be understood to have said, the following:

1. The offences (expressly the Commonwealth offence, but also, by necessary implication, the State offence) were objectively serious ([1] and [2]).

2. General deterrence was of particular importance having regard to the conduct and its seriousness ([2]).

3. His Honour had considered the available alternatives to a sentence of imprisonment ([3]).

4. His Honour had also considered whether, if a sentence of imprisonment were imposed, it ought be suspended ([3] and [4]).

5. Having considered all of these matters, his Honour nonetheless considered that a sentence of full-time custody was required as it was the only sentence that would take sufficient account of the purpose of general deterrence in the present case ([4]).

83. I do not consider it to have been necessary for his Honour to list all the available alternatives and to say why, in respect of each, a sentence which involved one of more of those alternatives would not have been appropriate. I regard his Honour’s reasons as sufficient to elucidate the reasoning and to demonstrate compliance with s 17A.

84. For these reasons, I am not persuaded that the second ground has been made out.

Ground 1: the sentencing judge failed to apply s 5 of the Crimes Act 1900 (NSW) when imposing a sentence for the State offence

85. In the remarks on sentence, the imposition of the sentence for the State offence preceded the imposition of the sentence for the Commonwealth offence. However, it does not follow that the sentence for the State offence was determined before that of the Commonwealth offence. Remarks on sentence must be read fairly as a whole. The sequence in which the reasons are expressed does not necessarily correspond with the order in which the reasons which led to the result was arrived at. Remarks on sentence do not necessarily reflect simultaneous thought processes, although, especially when they are delivered ex tempore, they may do.

86. In the present case, the proceedings on sentence commenced on 31 July 2015 at which time his Honour heard evidence and submissions. The proceedings were adjourned to 11 September 2015. The expressed purpose of the adjournment was to permit his Honour to reflect on the evidence and consider the sentence to be imposed. As his Honour said on 31 July 2015:

“What I propose to do, I find these State Commonwealth things very complicated and these particular charges very difficult to sentence so I do propose to put it over and to reread all the material and to work out what I’m going to do with it. I’ll just come up with a date.”

87. In these circumstances, and having regard to the structure of the overall sentence, I consider the better view to be that his Honour determined the sentence for the Commonwealth offence first. This is reflected in the longer sentence for that offence (based, presumably, on the greater maximum penalty). When the sentence for the Commonwealth offence is viewed as the starting point, the way in which the sentence for the State offence was intended to operate becomes clearer.

88. When his Honour came to sentence the applicant for the State offence (on my hypothesis, after determining the sentence for the Commonwealth offence), his Honour did not restate the findings relating to: objective seriousness or need for general deterrence; or consideration of the alternatives to full-time custody, since they were common to both. Moreover the requirements imposed on sentencing judges by s 17A in the Commonwealth Act corresponded with those imposed by the requirements in s 5(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and therefore did not need to be restated.

89. However, by reason of the length of the custodial sentence to be imposed, his Honour was obliged, with respect to the State offence, to comply with the additional requirements in s 5(2) of the Crimes (Sentencing Procedure) Act. The requirements of s 5(2) cannot be fulfilled unless separate consideration is given to them. Thus, compliance with s 5(1) does not constitute compliance with s 5(2) because s 5(2) provides an additional, important safeguard to offenders and amounts to a further restriction on the imposition of relatively short (six months or less) custodial sentences, which are regarded as particularly disruptive to offenders and potentially inimical to rehabilitation.

90. Apart from the reasons that applied both to the Commonwealth offence and the State offence (as to objective seriousness, the need for general deterrence and his Honour’s conclusion that a full-time custodial sentence was the only appropriate sentence), the only reasons given that pertain exclusively to the State offence are in [5] above.

91. The issue that arose when determining what sentence ought be imposed for the State offence, was that the imposition of any sentence that included any alternative to full-time custody would result in an additional penalty being imposed for the State offence. If, however, a custodial sentence was imposed for the State offence, which was wholly concurrent with, and not longer than, the custodial component for the Commonwealth offence, there would be no effective additional penalty for the State offence. His Honour chose the latter course.

92. In my view, a fair reading of the remarks, albeit brief, indicates that his Honour’s reason for imposing a sentence of six months in custody for the State offence was to take “into account the commonality”. This, in my view, constituted a reason for deciding that no penalty other than imprisonment was appropriate, as required by s 5(2)(a) of the Crimes (Sentencing Procedure) Act. This reason also qualified as a reason for deciding not to make an order allowing the applicant to participate in an intervention program or other program for treatment or rehabilitation, as required by s 5(2)(b) of the Crimes (Sentencing Procedure) Act. In the particular circumstances of the present case, such an order for treatment or rehabilitation, far from amounting to a more lenient alternative, would have imposed an extra penalty on the applicant. The effect of the imposition of the sentence for the State offence was not to put the applicant into custody for six months: he was already required to be there because of the sentence imposed for the Commonwealth offence.

93. His Honour’s articulation of the reason, “taking into account the commonality”, was, in my view, sufficient to comply with s 5(2) of the Crimes (Sentencing Procedure) Act.

94. I do not intend to suggest by my reading of his Honour’s remarks on sentence that any assumption ought be made that the provisions governing sentencing for Commonwealth and State offences have been complied with in any given case. The sentencing judge was bound by the applicable legislation. His Honour’s reasoning processes are to be gleaned from the remarks. However, sentencing judges, in demonstrating their compliance with provisions such as s 17A of the Commonwealth Act or s 5(1) and (2) of the Crimes (Sentencing Procedure) Act, ought not be required to undertake any formulaic recitation of the applicable provisions for the benefit of this Court, as long as their compliance is sufficiently shown by the reasons when read fairly as a whole, as I consider occurred in the present case.

95. For these reasons, I am not persuaded that the first ground has been made out.

Ground 3: alleged failure to consider alternatives to full time imprisonment

96. For the reasons given with respect to the first two grounds, I am not satisfied that this ground has been made out.

Ground 4: sentence imposed is manifestly excessive

97. Because of the view to which I have come with respect to the other grounds, I am required to address this ground but can do so briefly since my view is a minority one.

98. I do not regard the sentence his Honour imposed as being manifestly excessive. Although numbers of images are not irrelevant, they are no more determinative in sentencing than the weight of a prohibited drug: Wong v The Queen [2001] HCA 64; 207 CLR 584 at [67]-[73]. There is no single correct sentence in any particular case: Lowe v The Queen (1984) 154 CLR 606 at 612 per Mason J. Having regard to the seriousness of the offences and the nature of the images downloaded, it was open to his Honour to impose the sentences that were imposed and to structure them so as to require the applicant to serve six months in full-time custody.

Proposed orders

99. I would propose that the leave to appeal be granted and that the appeal be dismissed.

CCA bench reconvened on 4 March 2016 for final order

100. THE COURT: The Court has received an intensive correction order assessment report from which it appears Mr Fedele's personal and family circumstances are stable, he has been assessed as low risk of re-offending, he accepts responsibility for his offences, he has been undergoing psychological treatment to address his sexual offending and he is willing to continue to do so, and there is community service work available to him.

101. The author of the report has assessed him as suitable for an intensive correction order and notes that he has signed an undertaking to comply with all the obligations of such an order. Accordingly, Mr Fedele is sentenced on each charge to concurrent terms of imprisonment for 10 months to be served by way of an intensive correctional order and to commence today. The intensive correction order is subject to the mandatory conditions imposed by clause 186 of the Crimes (Administration of Sentences) Regulation 2014.

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Amendments

07 March 2016 - Amendment to paragraph numbering.

Decision last updated: 07 March 2016