Heathcote (a pseudonym) v R
[2014] VSCA 37
•13 March 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2013 0217
| EDMUND HEATHCOTE (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification of the victims of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES | TATE JA and SIFRIS AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 17 February 2014 |
| DATE OF JUDGMENT | 13 March 2014 |
| MEDIUM NEUTRAL CITATION | [2014] VSCA 37 |
| JUDGMENT APPEALED FROM | [The Queen v Heathcote] (Unreported, County Court of Victoria, Judge Ryan, 18 October 2013) |
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CRIMINAL LAW – Sentence – Using a carriage service to access child pornography material, using a carriage service to transmit child pornography material contrary to the Criminal Code (Cth) – Possession of child pornography contrary to the Crimes Act 1958 (Vic) – Further distribution of images rendered applicant an active participant in the market for child pornography – DPP v D’Alessandro (2010) 26 VR 477 followed – Visually capturing another person’s genital or anal region and distributing images of another person’s genital or anal region, contrary to Summary Offences Act 1966 (Vic) – Quasi-parental relationship to young girls and distributing their images online – Limited weight to be given to prior good character – Mouscas v R [2008] NSWCCA 181, R v Gent (2005) 162 A Crim R 29 followed – Error in calculation of release date.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M D Phillips with Ms D Lamovie | Victoria Legal Aid |
| For the Crown | Ms K Breckweg | Director of Public Prosecutions (Cth) |
TATE JA:
On 8 October 2013, Edmund Heathcote (a Pseudonym) (‘the applicant’) pleaded guilty to two Commonwealth indictable offences, namely, using a carriage service to access child pornography material (Charge 1) and using a carriage service to transmit child pornography material (Charge 2), contrary to s 474.19(1) of the Criminal Code Act 1995 (Cth) sch 1 (‘Criminal Code’). He also pleaded guilty to the State indictable offence of knowingly possessing child pornography (Charge 3), contrary to s 70(1) of the Crimes Act 1958 (Vic). In addition, he pleaded guilty to two State summary offences, namely, visually capturing another person’s genital or anal region and distributing images of another person’s genital or anal region, contrary to s 41B and 41C of the Summary Offences Act 1966 (Vic), respectively.
The applicant was sentenced on 18 October 2013 to a total effective sentence of 18 months’ imprisonment. He was directed to serve, as a matter of immediate incarceration, a period of nine months before being released on a recognizance order. The date of his release was fixed at 18 July 2014. While the sentence in respect of the State offences commenced immediately, the sentence imposed with respect to the federal offence under Charge 2 was ordered to commence on 18 February 2014 and the sentence on the other federal offence, under Charge 1, was ordered to commence on 18 July 2014. As the recognizance order made under s 20(1)(b) of the Crimes Act 1914 (Cth) was applicable only to the federal offences, the recognizance order referred to the five months of the sentence for which the applicant was incarcerated in respect of the offences against the Commonwealth Criminal Code.
The applicant was sentenced as follows:
Charge on Indictment Offence Maximum Sentence Commencement date 1 Use carriage service to access child pornography 15 years 9 months 18 July 2014 2 Use carriage service to transmit child pornography 15 years 12 months 18 February 2014
3 Knowingly possess child pornography 5 years 6 months No Order Summary Offence 1 Visually capture another person’s genital or anal region 2 years 3 months No Order Summary Offence 2 Distribute images of another person’s genital or anal region 2 years 3 months No Order Total Effective Sentence: 18 months Recognizance Release Order: Release of the applicant under paragraph 20(1)(b) of the Crimes Act 1914 after serving 5 months of the term of imprisonment and upon the applicant giving security by recognizance of $500 to comply with the following conditions:
(a) that the applicant is to be of good behaviour for 9 months; and
(b) that the applicant is to be under the supervision of the Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee for 9 months; and
(c) that the applicant is to attend for assessment and, if assessed as suitable, treatment for sex offender program or programs to reduce re-offending as directed by Deputy Commissioner, Community Correctional Services and Sex Offender Management or his or her nominee; and
(d) that the applicant is to report to Carlton Community Corrections Centre, 444 Swanston Street Carlton 3053 by 4:00pm, 2 days after release from custody.Pre-sentence Detention Declared: 10 Days 6AAA Statement: 30 months to be released on a recognizance order after having served 20 months’ imprisonment Other orders:
Sentenced as a Serious Sex Offender in respect of charge 3. Sex Offender registration, reporting period of life.
Grounds of Appeal
The applicant seeks leave to appeal, pursuant to s 278 of the Criminal Procedure Act 2009 (Vic), on the following grounds:
1The learned sentencing judge erred in his assessment of the gravity of the offending in relation to the totality of the offending.
2The total effective sentence imposed and the recognizance release order is manifestly excessive.
(a)The learned sentencing judge did not give sufficient weight to the mitigating factors in this case.
Circumstances of the offending[2]
[2]In his sentencing remarks his Honour Judge Ryan set out the circumstances of the offending based upon a Summary of Facts tendered by the Crown as Annexure A and read aloud in Court: see DPP v [Heathcote] [2013] VCC (‘Sentencing remarks’). This summary is based upon his Honour’s Sentencing remarks and Annexure A.
In about June 2010 the applicant commenced a relationship with a woman who was the mother of two daughters, one aged about 12 years old and one aged about 11. In August 2010 the applicant commenced to live with her and her daughters, along with a mutual male friend and his two twin daughters, then aged about 9.
In October 2011, they all moved to a different property in a nearby suburb. The relationship between the applicant and the woman stopped around December 2011 but they continued living at the same house, together with the friend and his children. The applicant was left alone with the twins and his former partner’s children. On 18 January 2013 the police executed a search warrant at the applicant’s address and seized his laptop computer and mobile phone. The applicant was cooperative throughout the search and made a number of admissions. The applicant was arrested on 18 January 2013 following the execution of the search warrant. After he was arrested he made some further admissions while being interviewed. At the request of the police he provided his password to his email account. He also gave his written consent for the police to use his internet identity to assist with the investigation and prosecution of others.
Summary Charge 1 – ‘Upskirting’
Analysis of the applicant’s laptop revealed five images that displayed surreptitious ‘upskirt’ images that focused on the underpants and groin region of the twin girls with whom he lived (‘the upskirting images’). The applicant admitted taking the upskirting images on his mobile phone. He said to the police that ‘… there was a couple that I probably shouldn’t have taken but I did’, and ‘I shouldn’t have done that, I know that now’. He said he was not sexually attracted to the twins, ‘they’re basically like my daughters, my step-daughters’ and that ‘I can’t shed any light on why, it just — it just happened and just one of those spur of the moment things’.
Summary Charge 2 – Distributing ‘upskirting’ images
On 8 February 2012 the applicant uploaded the upskirting images. He placed a password on the Image Source account and he provided the password on five occasions to others between April 2012 and December 2012. In one email in which the applicant provided his password, he sent the accompanying text:
Hello. My img is deeptower. My pass for my album is gt1900t. please send me your passes. Love young girls.
In another email accompanied by his password he said:
Hi there. … I live with friends who have twin daughters aged 11 and another aged 14. I have known them for a long time and the girls absolutely adore me. I love the looking at the young female form it is so innocent and beautiful. The girls give me big cuddles whenever they can and we have a lot of fun together. I have a few photos of them in my albums as you will see and am hoping to get some better ones soon. I would love to see your daughters locked album and also the one where she is asleep naked. They took that one down before I could view it. Hope to get some shots of my girls like that soon. Hope to hear from you very soon. Thanks.
He also received 40 emailed comments from Image Source users.
On 10 April 2012 and 24 October 2012 the applicant emailed the upskirting images to others. The text of the email he sent on 10 April 2012 said:
Hi your first found album got taken down before I could view it. Could you maybe send it to this address please? My img is deeptower. Also here are a few of my samples. I live in the same house as these lovely young girls and am constantly getting lots of attention from them. I will be endeavouring to get a lot more good photos as soon as school goes back. Thanks :-)
The text of the email he sent on 24 October 2012 said:
Hi there. Your album ‘another mix of girls’ was taken down on img before I could see it. Your other albums are fantastic. Could you please send me this albums pics please. My img is deeptower. I have some pics you may like also. Here is a little sample. The first 2 are my housemates daughters (twins) 11 yo. They love to play around and tease me. Thanks.
Charge 1 – Accessing child pornography
Charge 1 on the indictment was based upon folders contained on the applicant’s computer containing child pornography. These were received and opened from emails sent between 7 December 2011 and 26 October 2012. These contained a total of 26 images. Of those images, 24 were described as being Level 1, one was described as being Level 2 and one was at Level 3 on the Child Exploitation Tracking System (‘CETS’) classification.
The CETS classification is as follows:
Level 1 – images with no sexual activity depicting nudity, surreptitious images showing underwear, nakedness, erotic posing, explicit emphasis on genital areas.
Level 2 – sexual activity between children, or solo masturbation by a child.
Level 3 – non-penetrative sexual activity between children and adults.
Level 4 – penetrative sexual activity between children and adults.
Level 5 – sadism, bestiality or any form of child abuse.
Level 6 – animated cartoons or drawings depicting children engaged in sexual poses or activity.
I discuss further below the content of the images and the level at which they were classified.
The applicant’s email account on which these images were found identified correspondence with others, including the following email chains:
(1) email chain commenced by the applicant on 13 September 2011:
Hi. What do I need to do to get your passwords for your closed albums. Do I just say please can I have your passwords. My name is deeptower. I don’t have any NICE photos up as yet, but I am working on my stepdaughter who is almost 13 and growing very nicely coming in to summer here.
(2) email chain commenced by the applicant on 22 September 2011:
love your pics. Can you send me more or your passes. My img is deeptower. Thanks :-)
(receiver): send me more pics.
Awesome pics. Is that you inside the lovely girl C2. Would love to feel how tight she is. Any more of the same. Im working on my stepdaughter she is 12. Think I nearly have her.
(receiver): yes im have but send me sexy pics your stepdaughter !!:)
During the taped interview on 18 January 2013, the applicant stated, with respect to charge 1, that:
(1) There are naturist pictures of young girls and boys and older ladies and gentlemen on Image Source,[3] and that he accessed ‘that type of material’ through Image Source ‘every couple of times I’ve come home drunk’;
[3]The images relied on by the Crown appeared on the computer in the context of other images which included naturist images and adult pornography.
(2) He would not say he is drawn to ‘that type of material’;
(3) When asked, when was the last time he had viewed child pornography, he replied ‘it’s on Image Source’ … ‘there’s some on the — the naturist, the nudist or naturist, whatever you call them’; and ‘I’ve done it a few times when I’ve come home after being down the pool hall’;
(4) He made no admissions regarding accessing child pornography through his email account.
Charge 2 – Transmitting child pornography
Charge 2 on the indictment was supported by emails sent by the applicant to others between 11 April 2012 and 28 October 2012 containing child pornography. Eleven images were relied upon to support the charges and, of those 11 images, nine were said to be Level 1 and two at Level 2 on the CETS classification.
The applicant made no admissions regarding the transmission of child pornography through his email account.
Charge 3 – Knowingly possessing child pornography
Charge 3 on the indictment was supported by eight images of child pornography found on the applicant’s laptop. Three of the images were assessed at Level 1, three at Level 2 and two at Level 4.
The age of the girls in the child pornography possessed, accessed and transmitted by the applicant was predominantly between seven and 14 years of age.
Content of the images
The sentencing judge viewed the images during the course of the sentencing plea. At the hearing of the application for leave to appeal which was heard at the same time as the appeal, the Court was urged by the Crown to view the images and submitted that it would thereby become apparent to the Court that the images described as being at Level 1 were ‘at the high end of that level’. The applicant made no objection to this course, although he submitted that it was unnecessary for the Court to view the images. The Court acceded to the invitation of the Crown and viewed the images after the hearing.
In total there were 45 images, 36 of which were classified as Level 1, six at Level 2, one at Level 3, and two at Level 4.
A viewing of the 36 images described as Level 1 revealed that the vast majority of them were explicit images of the genital areas of young girls who sat or lay on beds with their legs open. A number of the images were close-up shots of the girls’ genitals. On a couple of occasions a young girl stood clothed in a bikini in an erotic pose but in the vast bulk of the images the girls were naked and presented as female bodily parts. Suffice it to say that there was nothing surreptitious about the images and they clearly fell into the high end of Level 1.
In my view, the moral wickedness and depravity of the images classified as Level 1 seriously detracted from the submission made on the appeal that his Honour had erred in his assessment of the moral gravity of the offending because a vast percentage of the images were only classified as Level 1 on the CETS classification.
The Level 2 images clearly fitted their classification largely as solo masturbation by a child.
The informant described the Level 3 image supporting Charge 1 as:
… depicting a naked female around 7 to 8 years of age being touched by an adult female and an adult male. The male in this image is naked and appears to be in preparation to insert his penis into the anus or vagina of the female child.
As was reported in the Summary of Facts tendered by the Crown, one of the Level 4 images supporting Charge 3 showed a naked girl aged about seven to 10 years of age lying on her back on a table. A grown man is inserting his penis into her vagina. The other Level 4 image showed a naked girl aged about 10 to 12 years of age lying on her back on top of a man whose penis is inserted in her vagina.
It was conceded by the applicant on the plea that the Level 4 images were serious examples of images of their kind.
In his Sentencing remarks, his Honour described the totality of the images in these terms:
The images that you accessed, transmitted and possessed were images of pre-pubescent girls displaying their genital area. Some of the girls manipulated their labia to reveal their vaginal orifice, and other girls had their labia manipulated by others to same effect. Some images displayed objects placed adjacent to the girls’ vaginas. Finally, there were images of penetration taking place. Each of the children depicted were/are victims of crime.[4]
[4]Sentencing remarks, [24].
Reasons for sentence
The applicant consented to being charged with the State summary offences out of time, after the 12 month period had expired, and consented to those offences being uplifted from the Magistrates’ Court and dealt with in the County Court at the same time as the three indictable offences. His Honour considered those matters to impact favourably upon the issue of remorse and the applicant’s prospects for rehabilitation.[5] He treated the applicant as having pleaded guilty at the earliest opportunity.[6]
[5]Ibid [5].
[6]Ibid [7].
His Honour noted that the applicant, then aged 47,[7] was a man without prior convictions and had no subsequent convictions or matters pending.[8] He was raised as the youngest of three children. His father worked in steel manufacturing, and he eventually set up his own business making and selling stormwater grates and fireplace grates. His mother did the book-keeping for his father’s business but otherwise remained working within the home. The applicant left school at 16 and worked for Autobarn manufacturing exhaust pipes and mufflers. He obtained a welding qualification and worked for his father full-time for five years, and then on and off for a further eight years. He later worked as a cook. He has had a number of age-appropriate heterosexual relationships throughout his adult life.
[7]The applicant’s date of birth is 16 February 1966.
[8]Sentencing remarks, [27].
The death of his father in 2009 had a dramatic effect on the applicant. He mourned the death of his father deeply and turned to alcohol to alleviate the pain. His Honour was informed that the applicant drank half a bottle of spirits each night, and that this habit continued throughout the relationship that he commenced in June 2010 and contributed to the failure of the relationship. The applicant’s level of drinking remained high during the period of offending. By the time of the plea it had abated.
His Honour also noted that the applicant accepted that his conduct with respect to the State summary offences involved a serious breach of trust in relation to the young girls with whom he lived and that more generally he understood that his behaviour was morally reprehensible and unacceptable.[9] He was satisfied that the applicant had a good prospect for rehabilitation.[10]
[9]Ibid [28].
[10]Ibid [28].
His Honour understood that while the applicant was to be treated as otherwise a man of previous good character, previous good character carries less weight in the sentencing exercise for offences involving child pornography than it otherwise would and the paramount sentencing consideration is general deterrence.[11] He was also aware that as each of the offences in the indictment are serious offences, the applicant fell to be sentenced as a serious sex offender on Charge 3 and that protection of the community was therefore the paramount sentencing consideration for which the sentence on Charge 3 was to be imposed, pursuant to s 6D of the Sentencing Act 1991 (Vic).
[11]R v Gent (2005) 162 A Crim R 29; DPP v D’Alessandro (2010) 26 VR 477.
In determining that an immediate custodial disposition was inevitable, his Honour said to the applicant:
Your conduct was not isolated, and you breached the trust of two of the children with whom you lived and who were your friend’s children. However, the number of images was small, the content of the images in the main was at the lowest level, and you did not profit from your activities.[12]
[12]Sentencing remarks, [26].
The application for leave to appeal
The applicant recognised that the two proposed grounds of appeal were inter-related. The principal submission made in support of the application for leave to appeal was that the objective seriousness of the indictable offences was at the lower end of the scale because of both the limited number of images and the classification of those images as predominantly Level 1 on the CETS classification. It was argued that the age of the girls was not particularly young, they not being infants and where they could be described as being within a range of between, for example, seven and 10 years of age as in the images supporting the first Level 4 image for Charge 3, an assumption should be made in the applicant’s favour of the higher age, estimates of the ages of young girls being inherently imprecise.
It was also argued that the number of images at issue in those cases which have established sentencing principles in this area have been vastly higher. In R v Gent[13] the items seized were of a higher CETS classification and consisted of 601 pictures and 16 video images on CDs; in DPP v D’Alessandro[14] the defendant exchanged 16,259 images with 44 people[15] with the sentencing judge saying that ‘it is difficult to convey the full horror of many of those images’[16] and in R v Fulop,[17] there were 41,594[18] pictures and video images including those of very young children and those with the highest CETS classification in which, amongst other things, children were shown tied up, performing sexual acts on other children and on animals, and being penetrated by one or more adults at the same time. It was submitted that while there were a number of sentencing cases in relation to offending at the higher end of the scale, there was little to compare at the lower end. Furthermore, Nettle JA in DPP v Smith[19] while observing that in general an immediate custodial sentence will be appropriate, was not persuaded that considerations of general or specific deterrence demanded an immediate custodial sentence in the particular circumstances of that case.[20]
[13](2005) 162 A Crim R 29.
[14](2010) 26 VR 477.
[15]Ibid 481 [13]. (Some involved multiple transmissions of the same photographs.)
[16]Ibid 481 [16].
[17][2009] VSCA 296.
[18]Ibid [3].
[19][2010] VSCA 215, [26]-[29].
[20]The comments made by Nettle JA were made in the context of dismissing a Crown appeal that the sentence imposed was manifestly inadequate. See also DPP v Guest [2014] VSCA 29.
The applicant emphasised that there were significant mitigating factors in the case that, it was submitted, had not been given sufficient weight. These included the fact that there was no profit motive involved; the activity was infrequent by comparison with other cases; the three charges on the indictment were not affected by the breach of trust that infected the State summary charges; the applicant had pleaded guilty at the earliest opportunity; he had made spontaneous admissions on arrest and interview; he had employment and a solid work history; the offences had occurred during a period of personal decline involving serious alcohol abuse after the death of his father; he had consented to the uplifting of the summary offences out of time without which his conviction was not inevitable; he was previously of good character and had not offended subsequently; he was remorseful; he had good prospects for rehabilitation because of his work history; and he was willing to engage in a sex offender program. It was submitted that the total effective sentence was manifestly excessive, as were the terms of the recognizance order.
In my view, it is necessary to be mindful of the principles that govern the sentencing of child pornography offenders, in particular, the centrality of general deterrence and the recognition that a market exists for the sexual exploitation of children, made worse by the capacity to exchange images on the internet. As Harper JA said in DPP v D’Alessandro:[21]
[21](2010) 26 VR 477. Williams AJA agreed with Harper JA. Redlich JA agreed that the appeal should be allowed and, substantially for the reasons Harper JA gave, that an immediate custodial sentence must be imposed. However, he would have imposed a lesser sentence.
[T]here seems to be unanimous support across the jurisdictions for a number of propositions. First, that the problem of child pornography is an international one. Secondly, that the prevalence and ready availability of pornographic material involving children, particularly on the internet, demands that general deterrence must be a paramount consideration. Thirdly, that those inclined to exploit children by involving them in the production of child pornography are encouraged by the fact that there is a market for it. Fourthly, that those who make up that market cannot escape responsibility for such exploitation. Fifthly, that limited weight must be given to an offender’s prior good character. Sixthly, that a range of factors bear upon the objective seriousness of the offences to which the respondent in this case pleaded guilty. They include:
(a)the nature and content of the pornographic material — including the age of the children and the gravity of the sexual activity portrayed;
(b) the number of images or items of material possessed by the offender;
(c)whether the possession or importation is for the purpose of sale or further distribution;
(d) whether the offender will profit from the offence.[22]
[22]Ibid 483-4 [21] (citations omitted).
His Honour went on to emphasise the vulnerability of the children who are subjected to degradation and are unable to protect themselves, and the importance of demonstrating that child pornography will not be tolerated:
[T]here are those who have such lack of empathy that they cannot assimilate a simple truth: that what they see is not merely a titillating picture, but the degradation of human beings too young to avoid the exploitation to which they are being subjected. … there is indeed something deeply inhuman in treating another human as the mere object by which one’s crudest and most selfish cravings are satisfied. The sentencing judge appreciated this when he added:
No matter where it occurs and no matter to whom it occurs, child sexual abuse cannot be tolerated. Australian courts must do their part to eliminate this horrendous activity …
It was this attitude that resulted in the creation of these offences and has motivated the courts to enforce the attitude to the extent they can. For this reason, a very significant sentencing factor in this instance is what is known as general deterrence; that is the desire to point out to the community that accessing or processing or using child pornography in any way is simply beyond the pale. It will not be tolerated.
I respectfully agree with everything his Honour said.[23]
[23]Ibid 484 [23]-[24].
Applying the principles to the circumstances of this case, in my view the sentencing judge was correct to recognise the paramount importance of general deterrence. As the Crown emphasised, the offending by the applicant consisted in five forms of conduct relating to child pornography. In sequence, these were the accessing of child pornography from December 2011 to 26 October 2012; the taking of images of the genital or anal region of the twin girls with whom he lived and in relation to whom he stood in loco parentis; the uploading of those images on 8 February 2012 and the distribution of the images of the twin girls to others between 11 April 2012 and 27 December 2012; the transmission of child pornography from 11 April 2012 to 28 October 2012; and knowingly possessing child pornography on 18 January 2013. All of the indictable offences and at least the second of the State summary offences involved the applicant as a participant in the market for the exchange of child pornography. Furthermore, two offences involving the further distribution of child pornographic images, the transmission of the ‘upskirting’ images and the transmission of the child pornography that constituted charge 2 of the indictable offences rendered the applicant an active participant in the market of the exchange of child pornography. As Harper JA noted, the production of child pornography is encouraged by the existence of the market for it and without people to possess or distribute the material there would be no need for children to be exploited, degraded, violated and abused in order to supply it.[24] An involvement in that market that goes beyond that of a passive recipient to an active involvement by way of further distribution links the applicant more closely to that market. The applicant further propagated the exploitation of the children. By his actions he was increasing the number of people viewing the material. The fact that the applicant did not profit from the offending in monetary terms did not detract from his status as an active participant in the market, although his Honour recognised it as a factor in mitigation.[25]
[24]See also R v Liddington (1997) 97 A Crim R 400, 409 (Ipp J).
[25]Sentencing remarks, [26].
Furthermore, while the applicant did not stand to be sentenced for the content of the email messages that accompanied the transmission of the images, those messages provided the context in which the images were shared. That context sat uneasily with the comments made by the applicant that he would not say he was drawn to ‘that type of material’ and that he took the images of his step-daughters as a ‘spur of the moment thing’. That context assists in explaining the applicant’s behaviour.
With respect to the objective seriousness of the offences, I have already indicated that it is important to consider the actual content of the images and not merely their classification, and although the bulk of the images were classified as Level 1 the images were explicit and were at the higher end of that Level. The Level 3 image, as described above, was imminently pre-penetrative. It was conceded that the Level 4 images were serious examples of their type. While the children depicted were not infants they were nevertheless young girls, ‘too young to avoid the exploitation to which they [were] being subjected’.[26]
[26]DPP v D’Alessandro (2010) 26 VR 477, 484 [23].
The volume of images was comparatively small and this was recognised by his Honour.[27] However, the volume of images is not the single determinant of an appropriate sentence. Rather, it is necessary to consider the culpability of the applicant in the context of the offending as a whole. Other offenders may well have accessed[28] or imported[29] a large number of images but not committed distribution or
transmission offences.[30] Others may have transmitted images but not in the context of having exploited and breached the trust of children to whom they stood in a quasi-parental relationship.[31] As mentioned above, the applicant was convicted of five different forms of child pornography offence. The length of time over which the offences occurred precluded any submission that the offence was an isolated one. Although the applicant made some admissions to the police, he made no admissions regarding accessing child pornography through his email account, nor regarding the transmission of child pornography through his email account.
[27]Sentencing remarks, [26].
[28]In The Queen v Fulop [2009] VSCA 296, the appellant was convicted of one count of using a carriage service to access child pornography and one count of knowingly possessing child pornography. While the number of images was very large there was ‘no dissemination of material’ (380, [19]).
[29]For example, in R v Gent (2005) 162 A Crim R 29, the applicant pleaded guilty to the offence of importing child pornography. He was described as ‘a consumer rather than a distributor of pornography’ and it was argued that there was ‘no evidence that that the pornographic material imported by the Applicant was for the use of any person other than the Applicant’ ( 48, [93]).
[30]For example, DPP v Smith [2010] VSCA 215, where Nettle JA said in support of the dismissal of the appeal: ‘Although the content of the material was varied, a significant part of it was at the upper end of the range of depravity, the number of items was high, and the number of victims was large. But in favour of the respondent, there was no suggestion that any of the material was for the purpose of sale, or further distribution, or that the respondent would profit from it, and the period of possession [six months] was at the lower end of the range’ ([25]) (emphasis added).
[31]For example, DPP v D’Alessandro (2010) 26 VR 477.
It was correct for the sentencing judge to attribute limited weight to the applicant’s prior good character.[32] As mentioned above, he was also mandated under statute to sentence the applicant in respect of Charge 3 as a serious sex offender and was therefore required to regard the protection of the community from the applicant as the principal purpose for which the sentence in respect of Charge 3 was imposed.
[32]See Mouscas v R [2008] NSWCCA 181, [37] where Price J (with whom Allsop P and James J agreed) said: ‘For the offence of possession of child pornography where general deterrence is necessarily of importance and is frequently committed by persons of prior good character, it is legitimate for a court to give less weight to prior good character as a mitigating factor’. See also R v Gent (2005) 162 A Crim R 29, 43-4 [62]-[64] (Johnson J, with whom McClellan CJ at CL and Adams J agreed).
The sentencing judge clearly considered the applicant’s early plea of guilty as a matter in the applicant’s favour, as he did the applicant’s co-operation with the police and his willingness to have the charges for the State summary offences laid out of time and uplifted to the County Court.[33] He accepted that the applicant was genuinely remorseful and had a good prospect for rehabilitation.[34] He appreciated that the offending behaviour took place in the context of the death of the applicant’s father and the subsequent period of personal distress.[35]
[33]Sentencing remarks, [5], [28].
[34]Ibid [28].
[35]Ibid [16], [19].
For those reasons, it is my view that although it is reasonably arguable that the total effective sentence of eighteen months with a period of incarceration of nine months is manifestly excessive, the appeal should be dismissed. I consider that there was no error committed by the sentencing judge in his assessment of the gravity of the offending or the appropriateness of the sentence in relation to the totality of the offending. In my view, the total effective sentence and the recognisance release order fell within the range of a lawful sentencing disposition for the applicant in respect of his offending. In particular, I observe that the State summary offences involved a serious breach of trust both because, as the applicant acknowledged, the twin girls were in substance his step-daughters and the offending occurred in their home, yet no cumulation was ordered in respect of them. In the circumstances, I would grant leave for the applicant to appeal against his sentence but dismiss the appeal.
Subject to the issue of the calculation of the release date, which I discuss below, I would grant the application for leave to appeal against sentence but dismiss the appeal.
Error in calculation of release date – no recognition for pre-sentence detention
At the commencement of the hearing, counsel for the applicant submitted that there had been a miscalculation with respect to the release date the sentencing judge had ordered. On the one hand, the judge had indicated that he intended to order that the applicant be incarcerated for nine months[36] and declared that the applicant had spent 10 days by way of pre-sentence detention not including the day of sentencing.[37] On the other hand, the judge fixed the date for release of the applicant as 18 July 2014. The day of sentencing was 18 October 2013. The release date of 18 July 2014 was nine months from the day of sentencing. The fixing of 18 July 2014 as the release date had the effect that the applicant would serve nine months in prison from the day of sentencing and receive no recognition for his pre-sentence detention. Furthermore, the date of 18 July 2014 is nine months and one day from the date of sentencing, a longer period than intended by the judge.
Accordingly, it was submitted the release date ought to have been 11 days earlier than the date fixed, that is, 7 July 2014.
[36]Sentencing remarks, [37].
[37]Ibid [38].
I accept that there has been an error in the calculation of the release date. I consider that orders ought to be made to re-fix the release date as at 7 July 2014 to reflect faithfully the sentencing judge’s intention to take into account the applicant’s period of pre-sentence detention and his intention to order nine months’ incarceration. For that purpose alone I consider that the appeal should be allowed.
SIFRIS AJA:
I agree with Tate JA.
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