Heels v The King
[2024] VSCA 133
•27 June 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0088 |
| BENJAMIN HEELS | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | PRIEST and NIALL JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17 June 2024 |
| DATE OF JUDGMENT: | 27 June 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 133 |
| JUDGMENT APPEALED FROM: | DPP v Cullinan-Smayle & Heels [2023] VCC 480 (Judge Syme) |
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CRIMINAL LAW – Appeal – Sentence – State charges of sexual assault and sexual activity in the presence of a child under 16 – Federal charges of using a carriage service to transmit and to cause child abuse material to be transmitted to self and possessing or controlling child abuse material obtained or accessed using a carriage service – Whether sentence manifestly excessive – Appeal allowed.
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| Counsel | |||
| Applicant: | Ms M Brown | ||
| Respondent: | Ms R Champion | ||
Solicitors | |||
| Applicant: | James Dowsley & Associates | ||
| Respondent: | Commonwealth Director of Public Prosecutions | ||
PRIEST JA
NIALL JA:
Introduction
An indictment filed against the applicant in the County Court by the Commonwealth Director of Public Prosecutions charged the applicant with: sexual assault of a child under the age of 16[1] (two charges – charges 1 and 22); sexual activity in the presence of a child under the age of 16[2] (four charges – charges 2, 3, 5 and 23); using a carriage service to transmit child abuse material[3] (20 charges – charges 4, 6, 8 to 21, and 24 to 27); using a carriage service to cause child abuse material to be transmitted to self[4] (one charge – charge 7); and possessing or controlling child abuse material obtained or accessed using a carriage service[5] (one charge – charge 28).
[1]Crimes Act 1958, s 49D(1). The maximum penalty is 10 years’ imprisonment, and the standard sentence is four years’ imprisonment.
[2]Crimes Act 1958, s 49F(1). The maximum penalty is 10 years’ imprisonment, and the standard sentence is four years’ imprisonment.
[3]Criminal Code Act 1995 (Cth), s 474.22(1). The maximum penalty is 15 years’ imprisonment.
[4]Criminal Code (Cth), s 474.22(1). The maximum penalty is 15 years’ imprisonment.
[5]Criminal Code (Cth), s 474.22A(1). The maximum penalty is 15 years’ imprisonment.
The applicant pleaded guilty to the indictment before a judge in the County Court on 15 September 2022. Six charges on the indictment were for State offences (charges 1, 2, 3, 5, 22 and 23), so that the provisions of the Sentencing Act 1991 (Vic) were engaged. The majority of the charges (charges 4, 6 to 21, and 24 to 28) were for federal offences, however, so that the notoriously difficult and error-prone federal sentencing regime — principally located in Part 1B of the Crimes Act 1914 (Cth) — applied. As a result, the judge was confronted with a somewhat burdensome sentencing task.
After a plea in mitigation conducted on 21 and 24 February 2023, on 31 March 2023 the judge sentenced the applicant to a notional total effective sentence of 11 years’ imprisonment, with a notional non-parole period of seven years and three months, in accordance with the following table:
Charge Offence Sentence Cumulation State sentences 1 Sexual assault of a child under 16 4 years Base 2 Sexual activity in the presence of a child under 16 4 years — 3 Sexual activity in the presence of a child under 16 4 years — 5 Sexual activity in the presence of a child under 16 3 years 3 months 22 Sexual assault of a child under 16 3 years 3 months 23 Sexual activity in the presence of a child under 16 3 years 3 months Total effective sentence:
(State)4 years and 9 months’ imprisonment Non-parole period:
(State)3 years Section 6AAA declaration:
(State sentence only)7 years’ imprisonment with 5 years non-parole Other relevant orders: Sentenced as a serious sexual offender on charges 3, 5, 22 and 23 pursuant to s 6F of the Sentencing Act 1991 (Vic) Federal sentences 4 Use carriage service to transmit child abuse material 4 years Commences 31 March 2027 6 Use carriage service to transmit child abuse material 2 years Commences 31 March 2026 7 Use carriage service to transmit child abuse material to self 5 years and 6 months Commences 31 March 2028 8 Use carriage service to transmit child abuse material 6 years Commences 31 March 2028 9 Use carriage service to transmit child abuse material 4 years and 6 months Commences 30 Sept 2024 10 Use carriage service to transmit child abuse material 1 year and 6 months Commences 31 March 2026 11 Use carriage service to transmit child abuse material 4 years Commences 31 March 2027 12 Use carriage service to transmit child abuse material 4 years Commences 31 March 2027 13 Use carriage service to transmit child abuse material 2 years Commences 31 March 2026 14 Use carriage service to transmit child abuse material 2 years Commences 31 March 2026 15 Use carriage service to transmit child abuse material 2 years Commences 31 March 2026 16 Use carriage service to transmit child abuse material 2 years Commences 31 March 2026 17 Use carriage service to transmit child abuse material 2 years and 6 Months Commences 31 March 2026 18 Use carriage service to transmit child abuse material 2 years and 6 months Commences 31 March 2026 19 Use carriage service to transmit child abuse material 2 years Commences 31 March 2026 20 Use carriage service to transmit child abuse material 2 years Commences 31 March 2026 21 Use carriage service to transmit child abuse material 2 years Commences 31 March 2026 24 Use carriage service to transmit child abuse material 4 years and 6 months Commences 31 March 2026 25 Use carriage service to transmit child abuse material 2 years and 6 months Commences 31 March 2026 26 Use carriage service to transmit child abuse material 2 years and 6 months Commences 31 March 2026 27 Use carriage service to transmit child abuse material 2 years and 6 months Commences 31 March 2026 28 Possessing child abuse material obtained or accessed by carriage service 6 years Commences 31 March 2028 Total effective sentence:
(Federal)10 years’ imprisonment Non-parole period:
(Federal)6 years and 3 months Total effective sentence:
(State and Federal)11 years’ imprisonment Non-parole period:
(State and Federal)7 years and 3 months Pre-sentence detention: 673 days Section 6AAA declaration: Life reporting under the Sex Offenders Registration Act 2004 (Vic)
On 31 March 2023, the judge also sentenced a co-offender, Tristan Cullinan-Smayle, who pleaded guilty to 23 charges — two charges of using a carriage service to procure a child under 16 for sexual activity[6] (charges 1 and 3); one charge of using a carriage service to cause child pornography to be transmitted to self[7] (charge 2); two charges of using a carriage service to transmit child abuse material to self[8] (charges 4 and 6); and 17 charges of using a carriage service to transmit child abuse material[9] (charges 5, 7, and 8 to 22) — to a total effective sentence of 10 years’ imprisonment, with a non-parole period of six years and seven months.
[6]Criminal Code (Cth), s 474.26(1). The maximum penalty is 15 years’ imprisonment.
[7]Criminal Code (Cth), s 474.19(1). The maximum penalty is 15 years’ imprisonment.
[8]See fn 4 above.
[9]See fn 3 above.
The applicant sought leave to appeal against sentence on three grounds. The first ground complains that the total effective sentence, non-parole period, orders for cumulation, and individual sentences on each of the charges are manifestly excessive (and provides ‘particulars’), and the second and third grounds complain respectively that the sentence imposed breaches the principles of totality and parity.
In the course of the hearing in this Court, counsel for the respondent properly and fairly conceded that the individual sentences on charges 8 and 11 fell outside the range of sentences open to the judge in the sound exercise of the sentencing discretion. Counsel for the respondent also conceded that the sentence on charge 28 was ‘stern’, albeit she contended that it was within the available range. We consider, however, that when all relevant sentencing factors are properly synthesised, the sentence on charge 28 also can be seen to fall outside the available range. Finally, we note that counsel for the respondent conceded that leave to appeal should be granted (although she submitted that the appeal should be dismissed).
Given the influence of the individual sentences on charges 8, 11 and 28 upon the determination of the total effective sentence and non-parole period, we are of the view that the first ground is made out, and the sentencing discretion is reopened. We would thus grant leave to appeal; allow the appeal; and sentence the applicant in the manner set out below.[10]
[10]At [57].
In light of our conclusions on the first ground, it is unnecessary to consider the second and third grounds.
The applicant’s offending
At the time of the offending, the applicant was 32 years of age,[11] and had no prior criminal history. He and the co-offender, Cullinan-Smayle, had been in a relationship from 2010.
[11]His date of birth is 5 November 1988.
Throughout the period of the offending, the applicant worked as a singing, piano, and music teacher, both as an employee and in a private capacity, at a secondary college and two performing arts schools.
On 27 May 2021, police executed a search warrant at an address where the applicant and Cullinan-Smayle cohabited. Police seized two Apple iPhone 12’s; an Apple watch series 3; a USB; a portable hard drive; and an Apple iMac; one iPhone belonging to the applicant and the other to Cullinan-Smayle. Both were arrested, and they each provided police with the access codes to their telephones. Police detected child abuse material on the electronic devices. In total, the applicant possessed 820 unique child abuse material files, of which 574 were image files and 246 were video files (charge 28). The applicant was co-operative with police, in that he volunteered the passwords to various accounts, and made extensive admissions in his Record of Interview.
The State offences: Charges 1, 2, 3, 5, 22 and 23
As we have indicated, the judge imposed individual sentences of four years’ imprisonment on charges 1, 2 and 3, and three years’ imprisonment on charges 5, 22 and 23. With orders for cumulation, a total effective sentence of four years and nine months’ imprisonment was imposed for the charges under State law.
Charges 1 and 2 were both rolled-up charges involving an eight year old male child, ‘CH’, embracing three separate episodes of offending. Between 1 January and 14 May 2021, the applicant masturbated his penis during private piano lessons with CH (charge 2), and touched his penis against CH’s back (charge 1). He filmed himself during each of the three episodes. On another occasion, the applicant filmed himself exposing his penis and masturbating in CH’s presence while CH plays an electric keyboard (charge 3). On none of these occasions was CH aware of the applicant’s conduct. (Subsequently, between 3 and 21 May 2021, the applicant transmitted three of the videos he had made of his offending to his co-offender. On 14 and 21 May, the applicant and co-offender exchanged written descriptions of CH, constituting child abuse material (see charge 9)).
On 26 March 2021, the applicant filmed himself masturbating over his clothing in the presence of another student, ‘TL’, aged 10 (charge 5). On two subsequent occasions, 14 and 21 May 2021 respectively, the applicant filmed himself masturbating in the presence of TL (charge 23) and then he touched TL’s clothed back with the tip of his penis (charge 22). At no point was TL aware of the applicant’s conduct. (The applicant transferred both videos to his co-offender the day they were made (see charge 24)).
The Federal offences
Save for two charges — charge 7, using a carriage service to cause child abuse material to be transmitted to self; and charge 28, possessing or controlling child abuse material obtained or accessed using a carriage service — all of the charges faced by the applicant for breaching Commonwealth law were for using a carriage service to transmit child abuse material (20 charges – charges 4, 6, 8 to 21, and 24 to 27). Using the INTERPOL Baseline System to categorise the child abuse material,[12] in each case the material was either Category 1 or Category 2. Category 1 relates to material that depicts a real prepubescent child (under the age of 13 years approximately) involved in a sex act; witnessing a sex act; and/or focussed/concentrated on the anal and/or genital region of the child; and Category 2 relates to other material which is illegal in Victoria, but does not fit within Category 1 as defined in the Criminal Code (Cth).
[12]Section 473.1 of the Criminal Code (Cth) defines child abuse material.
On the Commonwealth charges, individual sentences of imprisonment were imposed as follows: six years (charges 8 and 28); five years and six months (charge 7); four years and six months (charges 9 and 24); four years (charges 4, 11 and 12); two years and six months (charges 17, 18, 25, 26 and 27); two years (charges 6, 13, 14, 15, 16, 19, 20 and 21); and one year and six months (charge 10). The total effective sentence imposed for breaches of Commonwealth law — arrived at by staggering the commencement date of individual sentences — was 10 years’ imprisonment.
As mentioned, on 14 and 21 May, the applicant and co-offender exchanged written descriptions of CH, constituting child abuse material (charge 9); and on 14 and 21 May 2021 respectively, the applicant transferred videos of his offending with TL to his co-offender (charge 24).
Further, on various dates in May 2021, the applicant exchanged text-based child abuse material about some of the students that he taught, or other children whom he knew, to his co-offender, including: ‘DF’ (charge 6); ‘ME’ (charge 13, a rolled-up charge); ‘BB’ (charge 14); ‘JT’ (charge 15); ‘VR’ and ‘MR’ (charge 16); ‘WR’ (charge 17); ‘CA’ (charge 18, a rolled-up charge); ‘BC’ (charge 19); ‘KB’ (charge 20); ‘JW’ (charge 21, a rolled-up charge); ‘ML’ (charge 25, a rolled-up charge); ‘JK’ (charge 26); and ‘LV’ (charge 27). Additionally, the applicant described other boys in graphic sexual terms to his co-offender, including ‘WW’ (charge 10, a rolled-up charge). None of the children were aware of the applicant’s descriptions of them.
Between 3 and 26 May 2021, the applicant also transmitted 16 image files to his co-offender. During this period, there were 10 occasions in which the applicant transmitted text-based child abuse material to his co-offender that comprised the applicant’s description of sexual fantasies involving young children (charge 8). In the same period, the applicant received child abuse material transmitted by the co-offender (charge 7).
Moreover, between 5 February and 20 May 2021, the applicant transmitted a video of himself masturbating behind TL; 19 child abuse images and videos; and text-based child abuse material in the form of the applicant’s descriptions of what he would like to do sexually to young boys (charge 4) to Jarrod Lyons (who has been separately charged with offending related to child abuse material). Throughout the same period, the applicant also engaged in sexually explicit online conversations with another adult using the ‘Telegram’ application. Those conversations included text-based child abuse material (charge 11, a rolled-up charge). He also transmitted image, video, and text-based child abuse material to another adult Telegram user between 5 and 14 May 2021 (charge 12).
In order to see the federal offences in context, it is convenient to provide a table containing a summary of the applicant’s offending on each charge:
Charge
Conduct
Sentence
4
Charge 4 was a rolled-up charge reflecting 10 occasions between 5 February 2021 and 20 May 2021 when the applicant sent child abuse material in the form of images, video files and text messages depicting or describing known and unknown child victims to Jarrod Lyons. The material contained explicit and violent descriptions of child abuse, some of which were in Category 1, and some of which were Category 2.
4y
6
Charge 6 involved the applicant, on 3 May 2021, sending Cullinan-Smayle a non-pornographic video of a 13 year old student during a piano lesson (taken without the child’s knowledge). There was then an exchange between the two on Telegram constituting Category 2 child abuse material, in that it makes explicit sexual reference to the child.
2y
7
Charge 7 was a rolled-up charge capturing all of the child abuse material sent to the applicant by Cullinan-Smayle between 3 and 26 May 2021. Although predominantly consisting of written descriptions, it includes images and video material. Some of the material falls into Category 1, but it is mainly Category 2.
5y 6m
8
Charge 8 was a rolled-up charge covering multiple occasions between 3 and 26 May 2021 where the applicant transmitted child abuse material to Cullinan-Smayle in the form of image and video files depicting unidentified children. The files and videos consisted of 16 files depicting male victims between the ages of two months and 14 years being sexually abused by an adult male. On a further 10 occasions, the applicant transmitted Telegram messages to Cullinan-Smayle describing unidentified child victims. The sentencing judge described the conversations as ‘depraved’, describing ‘violent child abuse’, the images being ‘equally confronting’. In the judge’s view, the offence was ‘above mid-range objective seriousness taking into account the range of days over which offending occurred, the age range of the children, the number of images and the nature of the images depicted’.
6y
9
Charge 9 was a rolled-up charge, reflecting four occasions that the applicant sent child abuse material to Cullinan-Smayle between 3 and 21 May 2021. The applicant sent videos of CH to Cullinan-Smayle, who sent back images of a younger female child being vaginally penetrated by an adult male. There were then sexually explicit exchanges between the two on Telegram constituting Category 2 child abuse material.
4y 6m
10
Charge 10 was a rolled-up charge reflecting two occasions, on 3 May and 21 May 2021, when the applicant sent text messages to Cullinan-Smayle describing WW, unknown to them, falling into Category 2 child abuse material.
1y 6m
11
Charge 11 was a rolled-up charge reflecting three occasions between 5 and 14 May 2021 when the applicant transmitted text messages on Telegram to a person going by the username ‘Tom Kikibunn’, describing unknown child victims, and an explicit cartoon of a child with an adult, falling into Category 2 child abuse material.
4y
12
Charge 12 was a rolled-up charge reflecting four occasions between 5 and 14 May 2021 when the applicant transmitted images, videos and text messages of CH, and other children unknown. He sent two videos of himself masturbating behind CH, and a video of an unknown infant, falling into Category 1 child abuse material; together with a video, images and text messages of children who are not real, and a text message relating to CH, which fall into Category 2.
4y
13
Charge 13 was a rolled-up charge reflecting two occasions that the applicant sent child abuse material falling into Category 2 to Cullinan-Smayle, relating to a 10 year old former student, ME, between 5 and 6 May 2021. He transmitted four text messages and a video of an unknown male child between six and 10 years old, masturbating his penis while an adult male penis ejaculates onto the child. The video contains Category 1 child abuse material.
2y
14
Charge 14, involved the applicant, on 6 May 2021, sending a text message to Cullinan-Smayle falling into Category 2 child abuse material, relating to a two month old child, BB, whose mother was known to both.
2y
15
On 6 May 2021, Cullinan-Smayle sent the applicant a number of video files falling into Category 1 child abuse material. The applicant then sent two messages to Cullinan-Smayle concerning a 13 year old former student, JT, being Category 2 child abuse material, which the judge described as ‘detailed, extensive and depraved’. This conduct was the basis of charge 15.
2y
16
On 6 May 2021, the applicant sent a text message to Cullinan-Smayle discussing two toddler twins, VR and MR, in explicit sexualised terms, the child abuse material being Category 2. This was charge 16.
2y
17
On 6 May 2021, the applicant sent a text message to Cullinan-Smayle concerning WR, a five year old child who was unknown to the applicant. There was then a conversation that contained what the judge described as ‘explicit and degrading Category 2 child abuse material’. This was charge 17.
2y 6m
18
Charge 18 was a rolled-up charge reflecting two occasions on 6 and 26 May 2021 when the applicant sent text messages on Telegram to Cullinan-Smayle, which fell into Category 2, relating to an 11 year old child student, CA.
2y 6m
19
On 7 May 2021, the applicant sent six text messages to Cullinan-Smayle concerning a nine month old child, BC, whose father was known to the applicant through musical theatre, being Category 2 child abuse material . This was charge 19.
2y
20
On 7 May 2021, the applicant sent a text message falling into Category 2 child abuse material to Cullinan-Smayle concerning a 17 year old child, KB, who was unknown to the applicant. This was charge 20.
2y
21
Charge 21 was a rolled-up charge reflecting two occasions between 14 and 20 May 2021 when the applicant sent text messages to Cullinan-Smayle containing Category 2 child abuse material relating to JW, a 10 year old child who was known to the applicant through theatre.
2y
24
Charge 24 was a rolled-up charge reflecting two occasions between 14 and 21 May 2021 when the applicant sent videos to Cullinan-Smayle of himself masturbating behind TL, aged nine years, the videos being Category 1 child abuse material. He also sent written descriptions of TL, constituting Category 2 material.
4y 6m
25
Charge 25 was a rolled-up charge reflecting two instances between 18 and 20 May 2021 in which the applicant sent child abuse material to Cullinan-Smayle in the form of a video of the applicant masturbating over a photo of a four year old child, and sent Telegram messages containing written descriptions of that child, falling into Category 2 child abuse material. The sentencing judge described the material as ‘demeaning’ and ‘depraved’.
2y 6m
26
On 20 May 2021, the applicant sent Cullinan-Smayle six photos of a seven year old student. There was then an exchange of messages on telegram constituting Category 2 child abuse material. This was charge 26.
2y 6m
27
On 20 May 2021, the applicant sent Cullinan-Smayle four photos of a five year old child theatre student. There was then an explicit conversation concerning sexual activity with the child falling within Category 2 child abuse material. This was charge 27.
2y 6m
28
Charge 28 was a rolled-up charge relating to possession of 820 image and video files, 411 files being Category 1, and 409 files being Category 2, held in the form of date on a computer or contained in a data storage device as at 27 May 2021, when police executed a search warrant.
6y
Several features may be noted about the federal charges:
·first, save for charge 4 (which related to 10 occasions between 5 February and 20 May 2021 when the applicant sent child abuse material Lyons), all of the offending embraced by the rolled-up charges — charges 7, 8, 9, 10, 11, 12, 13, 18, 21, 25 and 28 — was confined to a single month, May 2021;
·secondly, 10 charges — charges 6, 14, 15, 16, 17, 19, 20, 26 and 27 — related to offending on a single day within that month (either 3, 6, 7 or 20 May 2021);
·thirdly, five rolled-up charges — charges 10, 13, 18, 21 and 25 — are based on only two instances of offending;
·fourthly, there was a large degree of overlap in the offending (so that, for example, charge 7 embraced all instances between 3 and 26 May 2021 in which Cullinan-Smayle sent child abuse material to the applicant); and
·fifthly, much of the offending was either exclusively or predominantly ‘text-based’ (for example, charges 6, 7, 10, 14, 16, 17, 18, 19, 20, 21, 26 and 27).
It should also be noted that the applicant received the same sentence on charge 28 — possessing child abuse materials — as did Cullinan-Smayle, in circumstances where Cullinan-Smayle’s equivalent charge related to a much greater number of images and videos (1,965 unique images, 1,752 in Category 1, and 213 in Category 2; and 1,054 unique videos, 814 unique videos in Category 1, and 240 in Category 2; an overall total of 3,019). It should also be noted that the respondent’s counsel conceded in writing that, whilst not manifestly excessive, the sentence imposed upon the applicant on charge 28 ‘discloses the misapplication of the parity principle — on this sentence only — and therefore an error’.[13]
[13]See [23] ad [37] below.
The applicant’s personal circumstances
The applicant is now aged 35 years. Until he committed the relevant offences he was of good character.
At the time of the offending, he had been in a relationship of some 13 years’ standing with Cullinan-Smayle. Unlike Cullinan-Smayle, however, who generally elected not to answer police questions, the applicant made substantial admissions to police that he was aware of the presence of child abuse material on two of his electronic devices.
The applicant has an older brother, and two older and two younger sisters. His parents separated when he was five years’ old; and notwithstanding that his father’s ‘homophobic’ attitudes may have affected his sexual development, complicated by some very difficult childhood experiences, the applicant appears to have had a relatively untroubled upbringing, enjoying good support from other family members.
After Year 11, the applicant left school and studied music composition at a TAFE college. He excelled in musical theatre, which became a large part of his chosen career path. It might be expected that any future career involving music and children is now lost to him.
The applicant’s physical health is adequate, although he suffers from asthma and type 2 diabetes, both adequately controlled by medication. His psychiatric health is more difficult. In a report dated 20 February 2023, confirmed by viva voce evidence, Dr Michael Davis, a consultant forensic clinical psychologist, expressed the opinion that the applicant was ‘currently experiencing a concerning degree of depressed mood’, for which he was being treated with antidepressant medication, probably best characterised as a ‘Major Depressive Disorder (in partial remission, with anxious distress).’
Further, although Dr Davis considered that the applicant had a ‘latent sexual interest in pre-pubescent boys that became fuelled by child abuse material’, his opinion was ‘that this was secondary to another paraphilic disorder’, in which ‘his primary interest has always been pleasing his sexual partners’ (in the case of the present offending, Cullinan-Smayle). As to this, the judge apparently accepted that the applicant did not have a sexual interest in children until ‘urged to participate in watching child pornography with [Cullinan-Smayle]’, so that he ‘eventually capitulated in order to please him’.
Significantly, with respect to the applicant’s risk of re-offending, Dr Davis expressed the following opinions in his report:[14]
A thorough consideration of relevant risk markers for sexual offending indicated that [the applicant] has a below average number of risk factors for contact offending and a remarkably low level of psychopathic personality features. He thus poses a low-to-moderate risk for contact sexual offending (i.e., somewhat lower than that of the average sexual offender). However, he has an elevated number of factors associated with recidivism amongst child abuse material offenders. Accordingly, it is my opinion that [the applicant] currently poses at least a moderate-to-high risk for further child abuse material offending.
[14]Emphasis added.
In her reasons for sentence, the judge noted the ‘utilitarian benefit’ of the applicant’s guilty plea ‘at the first available opportunity’, and the Worboyes[15] considerations resulting from the applicant having been in custody for two years during the pandemic. She said that ‘the very early plea will result in an appropriate reduction’ of sentence. Beyond observing that the plea of guilty was ‘some evidence of remorse’, however, the judge appears to have made no distinct finding as to the applicant’s level of remorse, or articulated how it might otherwise have borne on sentence (despite having indicated that she would).
[15]Worboyes v The Queen (2021) 96 MVR 344.
Discussion
The approach to a complaint that sentence is manifestly excessive was discussed in Leimonitis. It was said:[16]
As has been observed more than once, manifest excess is a conclusion which does not depend upon the attribution of identified specific error. Moreover, it is a conclusion that ordinarily does not admit of much elaboration or sustained argument,[17] since excess is, or is not, plainly apparent, and a sentence is, or is not, unreasonable or plainly unjust. The sentence may be excessive because the wrong type of sentence has been imposed, or because the sentence imposed is manifestly too long.[18] A judge of an appellate court will approach the task of assessing whether a sentence is manifestly (as opposed to simply arguably) excessive in much the same way that a sentencing judge approaches the imposition of sentence at first instance; that is, by instinctively synthesising all relevant factors in order to determine whether he or she considers the impugned sentence to be just and appropriate.[19] But it is not enough for appellate intervention to be warranted that the judges of the appellate court regard the impugned sentence as stern, or that they would not themselves have passed the same sentence. Intervention is justified only if the sentence is wholly outside the range of those open in the sound exercise of discretion.[20]
[16]Leimonitis v The Queen [2018] VSCA 198, [32] (Priest JA, Weinberg JA agreeing).
[17]R v Kenny (Unreported, 2 October 1978, Vic, CCA); Noa v R [2013] VSCA 4, [12]; Allen v R (2013) 36 VR 565, 573 [51]–[52].
[18]Dinsdale v The Queen (2000) 202 CLR 321, 325–6 [6] (Gleeson CJ and Hayne J).
[19]Ibid.
[20] Lowndes v The Queen (1999) 195 CLR 665, 671–672 [15].
Counsel for the applicant submitted that although the applicant fell to be sentenced on 28 charges, most of the offences to which the charges relate were committed in a single month, and 10 of the charges were committed on a single day. Moreover, there was a significant degree of overlap between the individual charges, both in the period of time over which they were committed and the conduct founding them. The principle of totality was therefore important.
As a matter of principle, when sentencing on a multi-charge indictment, a sentencing judge should always strive to impose an appropriate, proportionate sentence on each individual charge.[21] Acknowledging that sentencing an offender on an indictment containing multiple charges for State and Federal offences is made unduly difficult by the Commonwealth statutory regime that applies to the sentencing of federal offenders, adherence to principle in such a case requires the sentencing judge to make a sound discretionary judgment as to whether there should be cumulation between the sentences to be imposed on each charge; and, if so, whether the cumulation should be in relation to some or all of the charges, and whether it should be in whole or in part.[22] There will sometimes be cases where, because of the individual sentences already imposed on one or more of the charges, the sentencing judge will refrain from directing further cumulation on other charges, so as to avoid the imposition of a total effective sentence which is ‘crushing’, or otherwise offends the principle of totality.
[21]DPP v Grabovac [1998] 1 VR 664, 680, 683 (Ormiston JA, Winneke P and Hedigan AJA agreeing); R v Lomax [1998] 1 VR 551, 563 (Ormiston JA, Winneke P and Hedigan AJA agreeing); Johnson v The Queen (2004) ALJR 616, 624 (Gummow, Callinan and Heydon JJ); DPP (Cth) v KMD (2015) 254 A Crim R 244, 267 [96] (Maxwell P, Weinberg and Beach JJA); DPP v Swingler (2017) 269 A Crim R 526, 541–2 [68]–[69] (Ferguson CJ, Maxwell P and Weinberg JA) (‘Swingler’).
[22]R v O’Rourke [1997] 1 VR 246, 253 (Winneke P, Brooking and Callaway JJA).
When considering issues of cumulation or concurrency between the sentences on each charge on a multi-charge indictment, circumstances will often arise where the acts giving rise to discrete convictions are so closely related and interdependent that it can reasonably be said of them that they arise out of the one transaction and do call for complete (or at least substantial) concurrency. It will be necessary for the sentencing judge to accommodate the principle of totality by making appropriate orders for cumulation (or, depending on the applicable statutory regime, concurrency). In some situations it will be necessary to make orders so as to effect little or no cumulation. There must be a degree of cumulation for multiple sexual offences of such gravity that total concurrency would fail to do justice.[23]
[23]Flynn (a pseudonym) v The Queen [2020] VSCA 173, [130] (Niall, T Forrest and Weinberg JJA).
In our opinion, not only were a number of the sentences imposed on individual charges manifestly excessive, but the cumulation effected between charges was also excessive, resulting in a manifestly excessive total effective sentence and non-parole period.
As we have said, the respondent conceded that the individual sentences imposed on charges 8 and 11 were beyond the permissible range, and that the sentence on charge 28 infringed the principle of parity. Given that the concession was properly made, we consider that the sentencing discretion has been reopened. Self-evidently, on those three charges at least, the individual sentences must be reduced.
In our view, given their close temporal connection, and the fact that they related to a single victim, CH, there needed to be significant concurrency between the sentences imposed on charges 1, 2, 3 and 9, so as not to offend the principle of totality. The same can also be said of the sentences to be imposed on charges 5, 22 and 23, involving TL.
Moreover, all of the Commonwealth offences (save for charge 4), were confined to the month of May 2021. To a large extent the offending overlapped, and much of it involved text-based child abuse material. Significant concurrency (or modest cumulation) between the sentences on the Commonwealth charges was called for. There was also a need for the orders for cumulation between the State and Federal offences to reflect the fact that the total period of the offending was a matter of weeks, and the manner in which all of the offending was intertwined.
Significantly, the offending on charges 6, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20, 21, 25, 26 and 27 generally comprised the exchange of written fantasies. Albeit that the content of these written communications was vile, no children were harmed or actually physically abused in order to produce the transmitted child abuse material. Quite properly, the respondent did not dispute that the absence of actual harm to a child was relevant to an assessment of the seriousness of these offences (albeit that the respondent submitted that the offences involving descriptions of living children — particularly children known to the applicant — were more serious). That said, the distribution of prose describing child sex abuse, especially where it is done for the purposes of sexual gratification has the tendency to normalise or encourage child sex abuse, ignore the harm that such abuse occurs and undermine the unequivocal societal standard that such abuse is abhorrent.
So far as other objectively serious features of the offending are concerned, although the State charges in one sense involved the exploitation of two children, CH and TL, they remained unaware of the sexual offending perpetrated upon them and in their presence. And although the applicant transmitted videos of his depraved conduct involving those two children to Cullinan-Smayle, there is no evidence to suggest that the child abuse material so transmitted was intended for, or disseminated to, a wider audience, let alone that there was any distribution of the material for profit.
Ultimately, we have concluded that the individual sentences imposed on each charge, and the orders for cumulation, do not properly balance the objective seriousness of the offending against the mitigating features; in particular, the applicant’s co-operation with police; his prior good character;[24] the very early plea of guilty; the effects of the pandemic on the circumstances of the applicant’s custody; and the influence exerted by Cullinan-Smayle over the applicant’s offending.
[24]See SD v The Queen (2013) 39 VR 487, 494 [28]–[30] (Ashley, Redlich and Priest JJA); Wakim v The Queen [2016] VSCA 301, [43] (Redlich JA and Beale AJA). Cf DPP v Smith [2010] VSCA 215, [23] (Nettle JA); DPP (Cth) v D’Alessandro (2010) 26 VR 477, 483–4 [21] (Harper JA).
For these reasons, leave to appeal should be granted; the appeal allowed; and the applicant resentenced.
Resentencing
In exercising the sentencing discretion afresh, we necessarily have had regard to the distinct regimes applicable to sentencing for State and Commonwealth offences.
State sentencing regime
Each State sentence on the indictment is a standard sentence offence, the standard sentence in each case being four years’ imprisonment. A sentencing court must therefore treat the standard sentence as a ‘legislative guidepost’, having the same function as the maximum penalty, albeit that the established instinctive synthesis approach to sentencing is not affected (two stage sentencing not being permitted), the matters that the court may, or must, take into account in sentencing are not otherwise affected.[25] By virtue of s 11A(4) of the Sentencing Act1991 (Vic), when fixing a non-parole period for a standard sentence offence where the total effective sentence is less than 20 years’ imprisonment, the sentencing court must fix a non-parole period of at least 60 per cent of that term, unless it considers that it is not in the interests of justice to do so.
[25]Brown v The Queen (2019) 59 VR 462, 464 [4] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA); Quah v The Queen (2021) 290 A Crim R 136, 142–3 [21] (Maxwell P and Beach JA).
Each State offence on the indictment is also a ‘sexual offence’ for the purposes of pt 2A of the Sentencing Act 1991 (Vic). As a result, once the applicant is sentenced to imprisonment for two or more of the charged offences, he thereafter falls to be sentenced as a ‘serious sexual offender’. Section 6D therefore requires that, when determining the length of the sentence to be imposed, the sentencing court must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed; and, in order to achieve that purpose, may impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances. And by reasons of s 6E, every term of imprisonment imposed must, unless otherwise directed by the sentencing court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on the offender.
Commonwealth sentencing regime
Section 16A(1) of the Crimes Act 1914 (Cth) (‘the Act’) provides that, in determining the sentence to be passed in respect of any person for a federal offence,[26] a sentencing court must impose a sentence ‘that is of a severity appropriate in all the circumstances of the offence’. In addition to any other matters, the sentencing court must take into account such matters set out in s 16A(2) ‘as are relevant and known to the court’.
[26]Section 16(1) of the Act defines federal offence as ‘an offence against the law of the Commonwealth’.
With respect to the s 16A considerations, we note that the prosecution specifically submitted on the plea that, pursuant to s 16A(2)(h), the sentencing judge was entitled to take into account in sentencing the applicant the fact that he made admissions in his interview with police as co-operation with a law enforcement agency in the investigation of the offence as part of the instinctive synthesis of all relevant matters.
As to the fixing of a non-parole period, s 19AB(1)(c)(ii) of the Act provides that the sentencing court must fix a single non-parole period in respect of federal sentences of imprisonment if the sentences, in the aggregate, exceed three years. By virtue of s 19AJ of the Act, however, the sentencing court cannot fix a single non-parole period in respect of both federal sentences of imprisonment and State (or Territory) sentences of imprisonment.[27] Furthermore, s 19(3) provides that, where a person is convicted of a federal offence or offences, and a State offence or offences, at the same sitting; and the person is sentenced to imprisonment for more than one of the offences; the court must direct when each federal sentence commences but so that:
(c) no federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences; and
(d) if a non-parole period applies in respect of any State or Territory sentences — the first federal sentence to commence after the end of that non-parole period commences immediately after the end of the period.
[27]Fasciale v The Queen (2010) 30 VR 643, 647 [27] (Weinberg JA, Ashley JA agreeing); Swingler, 546 [89].
The effect of s 19(3) is that, when sentencing on a joint Commonwealth and State indictment, the sentencing court must order when the federal sentence commences, but there must be no gap between the expiration of the State sentence and the commencement of the federal sentence. Additionally, if the sentencing court fixes a State non-parole period, the federal sentence must commence immediately at the expiration of that State non-parole period so that there is no ‘gap’ in the service of the custodial term. Hence, when sentencing on an indictment which contains charges for both federal and State offences — as in this case — it is not possible for the sentencing court to impose a single non-parole order, a situation which leads to the imposition of sentence on a joint federal and State indictment containing more than a handful of charges being unwieldy and difficult.
In Swingler — a case bearing some similarities to the present — the Court recognised that logically there were three possible approaches to sentencing on a joint Commonwealth and State indictment.[28] The Court described the second approach as follows:[29]
The judge can group all the State offences together, and first sentence upon them individually. This has the advantage of enabling the sentences for the Commonwealth offences to be directed to commence at, for example, the expiration of the relevant State non-parole period. That avoids any gap in the custodial term,[30] and seemingly simplifies the process, by ensuring that relevant rules as to cumulation and concurrency are applied appropriately, and within the proper sphere of each sentencing regime.
[28]Swingler, 543 [78].
[29]Ibid.
[30]Fasciale v The Queen (2010) 30 VR 643; 207 A Crim R 488.
The Court went on to say:[31]
At present, as ss 16 and 17 of the Sentencing Act and s 19 of the Crimes Act (Cth) stand, the simplest approach in a case such as this appears to be the second of the three …, namely, dealing with the State sentences first, and then the Commonwealth ones.
[31]Swingler, 546 [88].
It should also be noted that s 16A(2AAA) of the Act — which requires a court sentencing for a child sex offence to have regard to the object of rehabilitating the sentenced person — applies to all of the federal offences on the indictment. Further, ss 19(5) and (6) of the Act are animated with respect to the sentences on each charge, so that an order must not have the effect that a term of imprisonment imposed on a person for a Commonwealth child sex offence be served partly cumulatively, or concurrently, with an uncompleted term of imprisonment that is, or has been, imposed on the person for another Commonwealth child sex offence, or a State or Territory ‘registrable child sex offence’, unless the court ‘is satisfied that imposing the sentence in a different manner would still result in sentences that are of a severity appropriate in all the circumstances’.
We also note that the usual practice in this Court has been to treat s 6AAA of the Sentencing Act 1991 (Vic) as applicable to sentences for Commonwealth offences.[32]
[32]DPP (Cth) v Besim [2017] VSCA 158, [122] (Warren CJ, Weinberg and Kaye JJA).
Finally, s 16BA(1) of the Act applies to sentencing for the federal offences. There are seven offences listed in the s 16BA Schedule filed with respect to the applicant which may be taken into account when imposing sentence for the charged offences.
Recognising the artificiality that attends it, we consider that the simplest approach to the resentencing exercise in this case is to adopt the second of the three approaches set out in Swingler; that is, first deal with the sentences to be imposed on the State charges, then deal with the sentences for the Commonwealth charges.
Our overall intention is reflected in the following table:
Charge Offence Sentence Cumulation State sentences 1 Sexual assault of a child under 16 4 years Base 2 Sexual activity in the presence of a child under 16 4 years — 3 Sexual activity in the presence of a child under 16 3 years — 5 Sexual activity in the presence of a child under 16 3 years 3 months 22 Sexual assault of a child under 16 3 years 3 months 23 Sexual activity in the presence of a child under 16 3 years — Total effective sentence:
(State)4 years and 6 months’ imprisonment Non-parole period:
(State)3 years Federal sentences 4 Use carriage service to transmit child abuse material 3 years Commences at the expiration of the State non-parole period 6 Use carriage service to transmit child abuse material 1 year and 6 months Commences at the expiration of the State non-parole period 7 Use carriage service to transmit child abuse material to self 3 years Commences one year after the expiration of the State non-parole period 8 Use carriage service to transmit child abuse material 4 years Commences one year after the expiration of the State non-parole period 9 Use carriage service to transmit child abuse material 2 years Commences at the expiration of the State non-parole period 10 Use carriage service to transmit child abuse material 1 year Commences at the expiration of the State non-parole period 11 Use carriage service to transmit child abuse material 1 year and 6 months Commences at the expiration of the State non-parole period 12 Use carriage service to transmit child abuse material 3 years Commences at the expiration of the State non-parole period 13 Use carriage service to transmit child abuse material 2 years Commences at the expiration of the State non-parole period 14 Use carriage service to transmit child abuse material 1 year Commences at the expiration of the State non-parole period 15 Use carriage service to transmit child abuse material 2 years Commences at the expiration of the State non-parole period 16 Use carriage service to transmit child abuse material 1 year and 6 months Commences at the expiration of the State non-parole period 17 Use carriage service to transmit child abuse material 1 year and 6 months Commences at the expiration of the State non-parole period 18 Use carriage service to transmit child abuse material 1 year and 6 months Commences at the expiration of the State non-parole period 19 Use carriage service to transmit child abuse material 1 year and 6 months Commences at the expiration of the State non-parole period 20 Use carriage service to transmit child abuse material 1 year Commences at the expiration of the State non-parole period 21 Use carriage service to transmit child abuse material 1 year and 6 months Commences at the expiration of the State non-parole period 24 Use carriage service to transmit child abuse material 3 years Commences at the expiration of the State non-parole period 25 Use carriage service to transmit child abuse material 2 years Commences at the expiration of the State non-parole period 26 Use carriage service to transmit child abuse material 1 year and 6 months Commences at the expiration of the State non-parole period 27 Use carriage service to transmit child abuse material 1 year and 6 months Commences at the expiration of the State non-parole period 28 Possessing child abuse material obtained or accessed by carriage service 4 years Commences one year after the expiration of the State non-parole period Total effective sentence:
(Federal)5 years’ imprisonment Non-parole period:
(Federal)2 years and 6 months Total effective sentence:
(State and Federal offences combined)8 years’ imprisonment
(Being 5 years for Commonwealth offences cumulative upon the State non-parole period of 3 years)Non-parole period:
(State and Federal offences combined)5 years and 6 months
(Being 2 years and 6 months Commonwealth non-parole period cumulative upon the State non-parole period of 3 years)Pre-sentence detention: 1133 days Section 6AAA declaration:
(Total effective sentence for State and Federal offences)10 years’ imprisonment with 7 years non-parole
Other orders: Sentenced as a serious sexual offender on charges 3, 5, 22 and 23 pursuant to s 6F of the Sentencing Act 1991 (Vic).
Life reporting under the Sex Offenders Registration Act 2004 (Vic).---
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