Howard John Hawke v The Queen
[2018] VSCA 287
•9 November 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0156
| HOWARD JOHN HAWKE | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGE: | ASHLEY JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 9 November 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 287 |
| JUDGMENT APPEALED FROM: | [2018] VCC 518 |
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009
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CRIMINAL LAW – Sentence – Application for leave to appeal – Offences against Commonwealth law and offences against State law determined on same occasion – Total effective sentence imposed for offences against Commonwealth law and non-parole period fixed – Total effective sentence for offences against State law imposed and non-parole period fixed – Global total effective sentence and non-parole period fixed – Not reasonably arguable that impermissible gap created between end of State non-parole period and commencement of Commonwealth sentences – Not reasonably arguable that sentencing judge treated conduct of applicant in abusing victim as an aggravating circumstance when sentencing applicant for production of child abuse material – Not reasonably arguable that sentences for State offence of possessing child pornography and for Commonwealth offence of transmitting child pornography manifestly excessive – Reasonably arguable that sentence for State offence of sexual assault manifestly excessive – Discussion of possible application of s 280(1)(b) of Criminal Procedure Act 2009 in the circumstances – Leave to appeal granted with respect to sentence for sexual assault but otherwise refused.
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ASHLEY JA:
Howard Hawke, the applicant, pleaded guilty to seven offences in the County Court and was sentenced on 19 April 2018 as follows:
Charge Offence Maximum penalty Sentence Commencement 1. Producing child abuse material outside Australia, contrary to s 273.6(1) Criminal CodeAct 1995 (Cth) (‘Criminal Code’) 15 years 7 years 19 October 2019 2. Sexual assault contrary to s 40(1) Crimes Act 1958 10 years 2 years 3. Use carriage service to transmit child pornography material contrary to s 474.19(1) Criminal Code 15 years 3 years 19 January 2024 4. Knowingly possessing child pornography contrary to s 70(1) of the Crimes Act 1958 10 years 3 years 5. Do an act with the intention of planning an offence against s 272.8 Criminal Code contrary to s 272.20(1) Criminal Code 10 years 4 years 19 July 2023 6. Engage in conduct to encourage an offence against div 272 of the Criminal Code (namely s 272.8(1) and s 272.9(1)) contrary to s 272.19(1) Criminal Code 20 years 5 years 19 January 2023 7. Engage in conduct to procure a child believed to be under 16 to engage in sexual activity outside Australia contrary to s 272.14(1) Criminal Code 15 years 4 years 19 July 2024 Total Effective Sentence (Commonwealth)
Head sentence:
Non-parole period:
8 years and 9 months’ imprisonment
6 years’ imprisonment
Total Effective Sentence (State)
Head sentence:
Non-parole period:
4 years’ imprisonment
18 months’ imprisonment
Total Effective Sentence: 10 years 3 months’ imprisonment Total Effective Non-Parole Period: 7½ years’ imprisonment Pre-sentence detention declared: 384 days Section 6AAA Statement: 13 years’ imprisonment / non-parole period of 10 years’ imprisonment Other:
The respondent was sentenced as a Serious Sexual Offender on charge 4.
The Respondent was required to comply with the reporting obligations of the Sex Offenders Registration Act 2004 for life.
With respect to sentence imposed for the Commonwealth offences, it can be seen that, by fixing a starting date for the sentence on each charge, cumulation on the sentence on Charge 1, which was the base sentence, was effected as follows: on Charge 3, three months; on Charge 5, nine months; on Charge 6, 15 months; and on Charge 7, 21 months. Because the sentences were cumulated on each other, a total of 21 months’ imprisonment was added to the base sentence of seven years’ imprisonment. Thus was arrived at the total effective sentence of eight years and nine months’ imprisonment for the Commonwealth offences.
It is apparent, although the Judge did not explain it in the orders which he made, that in arriving at the global total effective sentence, his Honour cumulated 18 months of the total effective State sentence (that is, equal to the length of the non-parole period) on the total effective Commonwealth sentence. Had he simply added together the total effective State and Commonwealth sentences, the global total effective sentence would have been 12 years and nine months’ imprisonment.
It is further apparent that in fixing the global non-parole period the Judge added together the non-parole periods which he had fixed in respect of the State and Commonwealth sentences.
Having regard to proposed Ground 1, as to which see later, I should set out the precise declaration made by the Judge with respect to pre-sentence detention. It was as follows:
Further declare the period that the prisoner has been in custody, namely 384 day/s, be reckoned as a period of imprisonment already served under this sentence, which will be deducted administratively.
Proposed Grounds of appeal
Now, the applicant seeks leave to appeal against sentence. He relies upon the following proposed Grounds:[1]
Ground 1 – The learned sentencing judge erred in law in imposing sentences on the commonwealth charges that did not comply with s 19(3)(d) of the Crimes Act 1914 (Cth) and, thereby, imposed non-parole periods and a global total effective sentence that are manifestly excessive.
Ground 2 – The learned sentencing judge erred in treating ‘abuse‘ of Bo as a circumstance of aggravation on charge 1, production of child pornography.
Ground 3 – The sentence imposed on charge 1, production of child pornography, is manifestly excessive.
Ground 4 – The sentence imposed on charge 2 (sexual assault) and the order for cumulation are manifestly excessive in all the circumstances.
Ground 5 – The sentence imposed on charge 3 (transmit child pornography) is manifestly excessive in all the circumstances.
Ground 6 – The judged [sic] erred in his assessment that charge 4 was ‘a very serious example’ of the offence of possess child pornography and, as a result imposed a sentence that is manifestly excessive in all the circumstances.
[1]Conveniently, in what follows, simply ‘Grounds’.
Circumstances
The Judge below set out the circumstances of the offending in his sentencing remarks. Thus:
Charge 1
On 31 March 2017, police seized an external hard disc owned by you. On that disc was a video entitled ‘BOW MOVIEW’ which depicted you naked and whipping a naked Asian child. The child's wrists are bound above her head and she is wearing a dog collar around her neck. The child depicted in the video is a Thai child named ‘Bo’ and is the daughter of Ms Bunnag. You produced the video on 24 May 2015 when you were in Thailand.
In the intercepted telephone conversations between you and Ms Bunnag almost two years later in March 2017, there are several references to the same child. In one of the calls on 21 March 2017, you asked Ms Bunnag how old Bo was. Ms Bunnag responded that she was 18 years old. The child's age as stated by her mother in 2017, together with her physical appearance on the video demonstrates that she was under 18 at the time of the offending. In 2015 you knew that to be the case. On the plea it was accepted by both parties that she was aged 16 at the time of the video.[2]
[2]DPP v Hawke [2018] VCC 518 [8]–[9] (‘Reasons’).
The Judge made other remarks under the heading ‘Charge 1’. They were relied upon by the applicant in connection with Ground 1. I will set them out later in these Reasons.
Charge 2
This charge is a state charge.
Sometime between 1 January 2017 and 30 March 2017, you indecently assaulted a 23-year-old woman named Joanna English who resided in the same share house with you. Ms English is cognitively impaired.
It was during the search warrant on 31 March 2017 that Ms English told police that she had previously gone into your bedroom and asked you for your car keys. She stated that you were naked from the waist down at the time that you took her hand and tried to put it on your penis. She pulled her hand away and left the room.
Charge 3
On 5 April 2017, the Australian Federal Police received a referral from Facebook relating to the transmission of child pornography material by you. Ninety images were transmitted by you to Facebook user Lindsay Watson on 31 January 2017 of which 13 images were classified as child pornography. Of the 13 images, 11 were classified as category five child pornography material pursuant to the Australian National Victim Image Library (ANVIL) and two were category one. Lindsay Watson is also known as Somsawi.
Charge 4
On 31 January 2017, you were in possession of the 13 child pornography images which you had transmitted to a Facebook user the subject of charge 3.
On 31 March 2017, during the execution of a search warrant at your residence, police observed two computer monitors in your bedroom. Child pornography videos were being played on both monitors and you were present in the room. Both videos were classified as category four child pornography which refers to material involving sexual penetration between a child and an adult. In this case the child was aged between 10 and 12 years. Also during the search, police seized a HP laptop computer containing 26 images and two videos, a Western Digital external hard drive with duplicates only (not included in the total), a USB with duplicates only (not included in the total), a camera which contained still frames taken from one of the videos located on the laptop (not included in the total) and a yellow manila folder labelled ‘pictures’, which contained one image.
Eight images located on the HP laptop were duplicates of images that you had sent to the Facebook user on 31 January 2017 and also not included in the total under this charge.
Following your arrest police were provided with a disc that had been located in your television by another resident in your house. Examination of this disc revealed that it contained five child pornography videos.
In total, you were in possession of 32 child pornography images and seven child pornography videos during the period of the charge (not including duplicates).
Of the 26 image files and two video files found on the HP laptop, 12 of the image files were category one, one was category three, and 13 were category five. The two video files were category five. The disc that was provided contained five images being one category one, one category two, two category four and one category five. The image found in the manila folder was a category one image. The images transferred via Facebook have been described above.
Analysis of your electronic devices revealed search terms used by you including ‘schoolgirl torture stories’, ‘schoolgirl caning video’, ‘Japanese virgin deflowered’, ‘preteen schoolgirl whipping videos’ and ‘young girls trained as sex slaves’.
Charge 5
Between 16 March 2017 and 29 March 2017, you engaged in several telephone conversations with Ms Bunnag where you discussed with Ms Bunnag finding a young child for you to engage in sexual activity with when you travelled to Thailand in April 2017.
On 16 March 2017, in a conversation between you and Ms Bunnag you stated amongst other things ‘you not have young one for me yet?’ and ‘what about young one for whipping’. During this conversation you said that you would come to Surin at the end of April 2017.
On 20 March 2017, you spoke to Ms Bunnag and told her to contact her daughter Bo and told her to find a ‘young one’ and stated that she must be slim and tall and not unsatisfactory. You also requested that Ms Bunnag obtain videos of young ones and find young ones for whipping as you get ‘fucking horny seeing young one hurt and I have new clamps and new whip’. You also asked her to find five or six year old children and if she finds a young one, she can make money by making a video of the child being hurt and sexually penetrated.
On 21 March 2017, you asked Ms Bunnag if she had attended a school to find young children. Ms Bunnag responded as she had on previous occasions by saying ‘Mamma say cannot’. You asked how old the child was and Ms Bunnag responded eight. You asked if she had told the child not to tell her mother. Ms Bunnag said that she had told that to the child and told her she could attend the house to be whipped. You then stated ‘when I come I'm gunna fuck her, okay’. In a further call on the same day you again asked Ms Bunnag to attend the school to find young ones that want money and requested that she take a video of the eight-year-old referred to earlier.
On 25 March 2017, you asked if Ms Bunnag's employees have ‘young girl or baby’ and when she responded there is no girl, you replied ‘No, no good. I don’t like fucking boys’. On 27 March 2017, you again asked Ms Bunnag if she could find you young children to sexually abuse. On 29 March 2017, you said to Ms Bunnag ‘so you can’t find one for whip, for me, you’ve got a young one for whip, you’re still lookin’ for a young one to whip? You cannot find?’
Charge 6
On 19 March 2017, you encouraged Ms Bunnag to engage in sexual activity (other than sexual intercourse) with a child outside Australia when you told Ms Bunnag that she can whip the young ones she is procuring for you before you arrived in Thailand and that you like to see young ones hurt when you whip them and that she needs to fix her video. This is said to be a reference to you directing Ms Bunnag to film herself whipping a child so that you can view the video.
Also on 19 March 2017, in conversation with Ms Bunnag, you encouraged her to teach the baby, her two-year-old granddaughter, to ‘suck cock’. On 29 March 2017, in a further conversation with Ms Bunnag you encouraged her to engage in sexual activity with the same baby by asking her to place her fingers in the baby’s bottom to see how many fingers could be inserted so that you could ‘fuck’ the baby when you travelled to Thailand. Ms Bunnag said no and that the baby was sleeping. You said she could do so when the baby wakes up and asked ‘how many fingers do you think’. Ms Bunnag responded ‘Oh when you come I do, now I not do’. You then asked ‘she can take my cock do you think?’ and Ms Bunnag responded, ‘yes’. You then said to Ms Bunnag ‘you gonna scream when I fuck her up the arse’.
On 28 March 2017 between 4.30 pm and 8.20 pm you accessed the Jetstar and Thai Airline websites in preparation for the planned trip to Thailand.
Charge 7
On 19 March 2017, you telephoned Ms Bunnag and stated that when you arrived in Thailand at the end of April you wanted to anally penetrate Bo’s baby (Ms Bunnag’s granddaughter and referred to in the charge as ‘Bo Baby’), who was approximately two years old. You stated that you wanted Bo's baby to suck your cock while you whipped Bo. You asked Ms Bunnag if you could teach the baby to ‘suck cock’ while you whipped Bo to which she responded ‘yeah’. You then said you would try and see if you could penetrate the baby’s anus but it might be too small and you told Ms Bunnag that she and Bo would have to hold her down ‘so I can stick my cock up her arse’. In another call later that day Bo Baby is placed on the telephone to you and you tell the child ‘when I come I gunna make you suck my cock, ok?’ You told Ms Bunnag that when the child gets older you want to ‘fuck her’ to which Ms Bunnag responded ‘you have to wait five year and six-year-old you can fuck’.
On 20 March 2017, there is a further conversation between you and Ms Bunnag about engaging in sexual activity with Bo Baby and on 21 March 2017, you told Ms Bunnag that you were going to travel to Thailand at the end of April and that you wanted Bo Baby to ‘suck your cock’. You later stated that you intended to sexually penetrate the child when she is five years old. On 22 March 2017, in a similar conversation, you said ‘I think when I come I’ll try her bum’ and further stated that Bo and Ms Bunnag could hold the baby down and that the baby would have to learn to suck you. Similar conversations occurred on 27, 28 and 29 March 2017.
During the period of charges 5, 6 and 7, you sent money to Ms Bunnag using Western Union. You made three transfers of $60 each on 19, 22 and 27 March 2017.[3]
[3]Ibid [14]–[35].
Charges 5, 6 and 7 were rolled up charges, referable to repeated conduct between specified dates. For instance, the Crown relied upon 23 separate conversations between the applicant and Bunnag with respect to Charge 5, and seven conversations with respect to Charge 7.
It was accepted by the Crown that there was some overlap, as regards Charges 5, 6 and 7, in the conversations which gave rise to those charges.
Records of interview and plea
The applicant was interviewed by police on 31 March and 19 May 2017. The Judge summarised the interviews this way:
On 31 March 2017, you were interviewed by police where you stated that you did a lot of internet browsing and the images on your monitor were from the internet. You denied the films had children in them. You denied having a sexual relationship with Bo. You said that you asked Ms Bunnag to go to schools because you had fantasies and asked her to put her finger in the baby's bottom because it is a fantasy. When asked about a video of you whipping a young child, you said it would be something from the internet and that you fantasised on the internet all day every day.
On 19 May 2017, you were further interviewed by police where you denied transmitting images to Ms Bunnag and Somsawai on Facebook. You said however they were both long-time friends of yours. You said that Ms Bunnag is an old girlfriend that you had known for nearly 10 years and that she had one daughter called Bo. You stated that Bo would be 19 or 20 but you did not know. In relation to Western Union money transfers made to Thai women including Ms Bunnag and Somsawai, you said that you sent money to three or four because they need money and denied sending them money in order for them to find children for you to sexually abuse. You stated that you had never had communications with those women about children for the purposes of sexual exploitation. You said all the calls you had were fantasy.
You denied sexually assaulting Ms English.[4]
[4]Ibid [36]–[38].
Nonetheless, the applicant pleaded guilty to the charges, and there was no contested committal.
Judge’s assessment of the gravity of the offending
The Judge expressed these conclusions with respect to the gravity of the applicant’s offending:
In the vast majority of these types of cases where the charges relate to possession and/or transmission of child abuse material, the offenders are not directly connected with the victims. In your case, however, in 2015 you produced the video the subject of charge 1, and are featured in it naked and whipping a child. Approximately two years later, you engage in numerous conversations with the mother of that child with the intention of further sexually abusing that child but most disturbingly, you encourage and plan to commit offences against that girl’s own daughter who was two years of age.
The conversations you engage in with Ms Bunnag in 2017 confirmed your production of the video in 2015 and as outlined above, demonstrate your sexual interest in children of a very young age. The conversations are very disturbing, depicting scenarios that amount to the most serious and depraved sexual and physical abuse of very young children.
You also say in answers to questions in your record of interview that you had asked Ms Bunnag to go to schools because you have fantasies and that you had asked her to put her finger in the baby's bottom because it is a fantasy. It was submitted on your behalf that all the conversations were of a fantasy nature and were designed only to stimulate you sexually. While I accept that your conversations may have had the effect of stimulating you sexually, the difference here is that these conversations were had with the mother of a child that you had already sexually abused. They were conversations with a woman that you had paid money to and made requests of finding younger children for you to sexually abuse. You had already travelled extensively in Southeast Asia, you had an established relationship with Ms Bunnag and you had abused her own child. Most disturbingly, you were engaging her and encouraging her to commit offences with her own granddaughter who was two years of age for your sexual gratification. At one point you even spoke to the two-year-old.
In all the circumstances in my view, in relation to the Commonwealth charges on the indictment and the state charge of possessing child pornography these are very serious examples of those offences.
I also consider the state charge of indecent assault a serious charge as it involved a vulnerable, cognitively impaired person who was living in your house.[5]
[5]Ibid [39]–[43].
The applicant’s personal circumstances
The Judge said this about the applicant’s personal circumstances:
You are 69 years old age and will turn 70 on 15 May 2018. You are a single man, you have never married and you have no children. You were educated at Trinity Grammar School in Sydney where you completed your secondary schooling.
You have since leaving school been extensively employed in marketing, sales and manufacturing industries. You became involved in piggery management and in 1987 you purchased a pig farm in Western Australia. You sold the farm in 2006 and since that time you have travelled extensively particularly in Southeast Asia which is where you met Kulap Bunnag and formed a relationship with her.
You suffer from a number of medical conditions including hypertension and diabetes. You are HIV positive however that is controlled by prescribed medication that you continue to take.
You have limited support in the community. You have a sister who lives in Queensland and you have not told her of these offences. It was put that in the last 10 years you have effectively led a nomadic lifestyle travelling. When arrested you were living in a boarding house.[6]
[6]Ibid [44]–[48].
Sentencing considerations
Having described the nature and extent of the offending[7] and the applicant’s personal circumstances, the Judge stated that general deterrence was the paramount sentencing consideration. In light of the applicant’s persistent offending, specific deterrence was also of importance, although the applicant’s age and health problems suggested that the risk of him re-offending would reduce over time. Just punishment and denunciation were also relevant considerations.
[7]In the course of which his Honour accepted that the 2017 conversations may have had the effect of sexually stimulating the applicant, but were set in a context of fact, not fantasy.
The Judge took the applicant’s guilty plea into account, but considered that there was ‘no evidence before [him] of genuine remorse over and above the plea of guilty’.[8]
[8]Reasons [54].
His Honour noted that the applicant’s counsel had accepted that his client’s offending was serious, but had submitted that principles of totality and parsimony must also be weighed. His Honour accepted that considerations of totality and parsimony were in point.
His Honour noted that no psychological material had been submitted on the applicant’s behalf and so it was difficult to determine what prospects of rehabilitation there were. He concluded that the applicant’s prospects could ‘only be approached with caution’.[9]
[9]Ibid [55].
With respect to Charge 2 (colloquially, indecent assault), the Judge took into account the victim’s vulnerability and the effects of the offending upon her as described in a victim impact statement.
Ground 1
The gist of Ground 1 is that the 384 days pre-sentence detention declared by the Judge must be allowed in respect of the State sentence. In consequence, it was submitted, the State non-parole period of 18 months’ imprisonment will end long before 19 October 2019, that being the date upon which the sentence on Charge 1, the first Commonwealth offence, is specified to commence. So, it was submitted, there will be a gap between the end of the State non-parole period and the commencement of the Commonwealth sentence, which is impermissible and which will render the overall total effective sentence and the non-parole periods manifestly excessive.
There would be a problem if the effect of the sentence was to create a gap of the kind contended for.[10] The Ground must be upheld if the pre-sentence detention was to be set against the State sentence, for it would operate both upon the total effective sentence and the non-parole period.
[10]See Fasciale v The Queen (2010) 30 VR 643, 649 [35]–[36] (Weinberg JA, Ashley JA agreeing).
In my opinion, however, this Ground is not reasonably arguable. That is so for two reasons. First, enquiry having been made, at the Court’s direction, as to the way in which the Department of Justice and Regulation would deal administratively with the declared pre-sentence detention, a senior official responded that the 384 days pre-sentence detention ‘was deducted administratively by Corrections from the Federal term of imprisonment only’. The official provided two reasons:
firstly the court had fixed commencement dates in respect of the Federal sentences and to duct [sic] the pre-sentence detention from the State term of imprisonment would interfere with the directions of the court in respect of commencement dates. The second reason is the application of the period to both the State and Federal terms would be contrary to s 18(d) of the Sentencing Act 1991, the application two [sic] both terms would in effect be double counting the period of presentence detention declared.
The second reason, understandably, did not address the applicant’s argument (no doubt unknown to the Department) that pre-sentence detention should only be set against the State sentence. The first reason, on the other hand, was in point, because the integrity of the Judge’s sentence was thereby maintained.
The second reason why, in my opinion, Ground 1 is not reasonably arguable, is this. The applicant must have been remanded in respect of his offending conduct both State and Commonwealth. There is no evident reason, the Judge having fixed a global total effective sentence and non-parole period, why allowance for pre-sentence detention should be set against the State segment of it. Rather, and consistently with the structure of his Honour’s sentence, it should be deducted from the entire sentence at its end point. I add, for completeness, that the effect of deducting pre-sentence detention from the global total effective sentence (thus affecting the global non-parole period) is effectively to deduct it from the later ending Commonwealth sentence — which is what the administrative authority has done. There is no question of the applicant having been deprived of the benefit of allowance of pre-sentence detention.
Ground 2
The applicant submitted that:
(1) In determining the objective gravity of Charge 1, the Judge was entitled to have regard to the nature and content of the material produced by the applicant, it being relevant that it depicted sadistic activity. Further, the images themselves were relevant to the applicant’s submission that his 2017 telephone calls were mere fantasy.
(2) On the other hand, the ‘persuasive presumption’[11] of harm to the victim which arises in the case of child sex offences must be restricted to harm arising from ‘rendering the activity into pornography rather than the undertaking of the activity itself’. Moreover, at the time of the offending the victim had attained the age of 16 years. It was impermissible to approach the matter on the basis that the offending had involved non-consensual activity. The applicant must not be sentenced as though he had committed an offence with which he had not been charged.
(3) It was impermissible for the Judge to regard the offending on Charge 1 ‘as aggravated by the actual or planned “abuse” of the victim’. Abuse of the victim per se could not aggravate the offence. But the Judge did treat the abuse inflicted in 2015, of itself, as aggravating the offence. He emphasised the nature of the sexual activity between the applicant and the victim. He also adverted to telephone calls between the applicant and Bunnag in 2017 which were suggestive of planned sexual activity between the applicant and the victim in the future.
(4) The Judge imposed on Charge 1 the heaviest sentence on all of the Commonwealth charges on the indictment, notwithstanding that Charge 5 had a greater maximum penalty, took place over a period of time and was, in effect, a rolled up count.[12]
[11]Adamson v The Queen (2015) 47 VR 268, 282 [22].
[12]This submission was wrong in fact. The maximum penalty on Charge 1 was greater than the maximum penalty on Charge 5.
It was submitted for the respondent that:
(1) The applicant had pleaded guilty to a charge of producing child abuse material outside Australia; not, by contrast, a charge of producing child pornography material. The applicant’s submissions had proceeded from a false starting point.
(2) The definition of ‘child abuse’ in s 473.1(a) of the Criminal Code, that is:
material that depicts a person, or a representation of a person, who:
(i)is, or appears to be, under 18 years of age; and
(ii)is, or appears to be, a victim of torture, cruelty or physical abuse;
and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive
meant that it was an element of the offence that the child depicted was a victim of physical abuse. The finding that there had been physical abuse of the victim who, at age 16, was a child, was clearly open.
(3) As to the conversations between the applicant and Bunnag in 2017, their use was to demonstrate the age of the victim when the video was made in 2015, to shed light on the nature of the activity that occurred at that time, and to reveal that the applicant’s motivation in 2015 was to inflict pain on the victim for his own sexual gratification.
(4) References to the victim in the course of discussions between the applicant and Bunnag in 2017 were essentially directed to Charges 5, 6 and 7.
Analysis
The offence the subject of charge was relevantly that:
273.6 Possessing, controlling, producing, distributing or obtaining child abuse material outside Australia
(1) A person commits an offence if:
(a)the person:
(i) has possession or control of material; or
(ii) produces, distributes or obtains material; or
(iii) facilitates the production or distribution of material; and
(b) the material is child abuse material; and
(c) the conduct referred to in paragraph (a) occurs outside Australia.
Penalty: Imprisonment for 15 years.
I have already set out the applicable definition of ‘child abuse material’.
The applicant’s guilty plea meant that he admitted all the elements of the offence, which included that the material depicted a victim of torture, cruelty or physical abuse. It remained relevant, however, in assessing the gravity of the offence, to characterise what was depicted so as to see where it fitted within the language of the definition.
The passages in the Judge’s sentencing remarks relied upon by the applicant read as follows:
There are further references in the intercepted telephone conversations in 2017 that shed light on the nature of the sexual activity between you and Bo and the events of 2015. On 16 March 2017, you asked Ms Bunnag if her daughter Bo, who resided in Thailand could come and stay with you in Surin if you went there. Ms Bunnag agreed. You stated you were trying to get a quiet hotel so you could whip Bo and she could scream but nobody would say anything. Alternatively, you stated that if you could not get a hotel, you could take her to the jungle, tie her to a tree and whip her and she could scream as much as she likes.
Also on 16 March 2017, you conducted internet searches looking for hotels, real estate villas and house listings in Surin, Thailand. On the evening of 16 March 2017, you again spoke to Ms Bunnag and told her that you had sent money the day before which she confirmed she had received. You then said you may go to Surin at the end of April and if Bo wanted she could go and stay with you.
On 17 March 2017, you again spoke to Ms Bunnag at which time you told her that you had watched the movie of Ms Bunnag whipping her daughter Bo and asked Ms Bunnag to hurt Bo by ‘placing needles in her clitoris’ and whipping her until she bled. You also expressed your desire to make movies of foreigners ‘fucking Bo’ and making her experience a lot of pain. On 19 March 2017, you spoke of whipping Bo while you anally penetrated her daughter referred to as ‘Bo Baby’.
On 19 March 2017, you told Ms Bunnag that you ‘whipped Bo in the motel before. Not scream too much. I video her. I watch. I’m whipping Bo in the motel’. In another call on the same day you asked Ms Bunnag if Bo had a young friend who you could meet as you would like to ‘whip’ and ‘fuck’ Bo and her friend ‘up the arse’. On 20 March 2017, in a further conversation between you and Ms Bunnag you asked Ms Bunnag if she wanted you to get other foreigners to also engage in sexual activity with Bo and to whip her as they watched and they could also make some money.[13]
[13]Reasons [10]–[13].
For the most part, those conversations, which appear under the heading ‘Charge 1’ in the Judge’s sentencing remarks, related to proposed future violent sexual offending upon the victim Bo, whether by himself or by Bunnag. Such proposed future offending was not a part of the charge 1 offence. But that is not the end of it.
The Judge said that intercepted telephone conversations in 2017 ‘shed light on the nature of the sexual activity between [the applicant and the victim] and the events of 2015’.[14] It is not entirely clear to me what his Honour meant by this, even allowing that a judge’s reasons should not be read as if they are a statute. Acknowledging that uncertainty, I think it is probable that what his Honour was getting at was the likely motivation for the 2015 offending, this being revealed by what the applicant was planning to do, and encouraging Bunnag to do, in 2017. So, for instance, the judge referred to the applicant telling Bunnag that he ‘whipped Bo in the motel before. Not scream too much. I video her. I watch. I’m whipping Bo in the motel’.[15] The applicant’s evident motive for the 2015 attack — sexual gratification by inflicting hurt on a young person — and his obvious lack of remorse for what he had done in 2015, were relevant sentencing considerations in respect of Charge 1.
[14]Ibid [10].
[15]Ibid [13].
I do not consider that where the Judge fitted the impugned observations into his sentencing remarks makes it reasonably arguable that his Honour conflated production of the material and the circumstances of the abuse when assessing the objective gravity of the charge 1 offending, as distinct from using the matters which he mentioned when assessing the overall criminality of this offending.
Ground 3
By Ground 3, the applicant contends that the sentence imposed on Charge 1 was manifestly excessive. As with Ground 2, the submissions misdescribe the charge as ‘production of child pornography’. Charge 1 was rather one of producing child abuse material.
In any event, the applicant:
(1) Submitted that a sentence of seven years’ imprisonment was not reasonably open where the offending related to a single act of production, there being no evidence of dissemination or transmission for profit and where the child depicted was aged 16, despite the content of the video being sadistic in nature.
(2) Conceded that there are insufficient cases to inform current sentencing practices under the relevant section in the Commonwealth Act; but by reference to a state offence,[16] where the maximum penalty is considerably less, it was said that the sentence on Charge 1 ‘outstrips by years any otherwise imposed for this offence’.
(3) Relied upon the alleged misuse of evidence which he relied upon in support of proposed Ground 2.
[16]The applicant referred to what was the s 68(1) Crimes Act offence of production of child pornography.
The respondent made some general submissions about the manifest excess ground, and with respect to the intent of the Commonwealth legislation. I will refer to those submissions immediately.
Referable to Grounds 3–6, which contend that the sentences passed on Charges 1, 2, 3 and 4 were manifestly excessive, the respondent relied upon the many judicial statements that this ground is difficult to make out, requiring that it be established that the sentence complained of was outside the boundary of the reasonable exercise of the judicial discretion. So much is not in doubt.
As to the intent of the Commonwealth legislation, reliance was placed upon ‘the Australian government’s adoption and implementation of international obligations to protect children from sexual exploitation by Australian citizens overseas’. This, it was submitted, is an important consideration for sentencing purposes. Further, the respondent submitted, offending such as this is difficult to detect, and denunciation is clearly a relevant sentencing principle, whilst general deterrence is the paramount sentencing consideration. The Commonwealth legislation, it was submitted, recognises that children overseas may be more easily exploited for the sexual gratification of adult offenders, as such children are often economically vulnerable and live in environments lacking strong criminal offence and child protection regimes.
Specific to Ground 3, the respondent submitted that:
(1) The sentence was not manifestly excessive. The maximum penalty is 15 years’ imprisonment. The video produced by the applicant was highly depraved and featured a significant level of cruelty towards the child, who was whipped whilst she was naked, bound and wearing a dog collar.
(2) Subsequent conversations in which the applicant discussed the events depicted in the 2015 video made it abundantly clear that, in abusing the victim in the manner which he did, his motivation was to cause her physical pain for his own sexual gratification.
(3) By making the material, the applicant became an active participant in the child pornography market, albeit that he did not disseminate the video to others for profit financially from the offending.
(4) The victim clearly suffered harm as a result of the offending. There was also a significant age difference and corresponding power imbalance between the applicant and the victim.
Analysis
In my opinion, this Ground is far distant from being reasonably arguable. The applicant produced child abuse material of a high order of gravity. He was both producer of and actor in the material which depicted the child abuse. His moral culpability was of a high order. He produced the material for sexual gratification, both immediate and longer term. His conversations with Bunnag in 2017 show that he then had no remorse for what he had done. His conduct was depraved. His victim must have suffered harm — certainly short-term and it might well be long-term. The fact that the offence was constituted by the production of a single video, and that the same was not shared by the applicant with others, only diminished the gravity of the offending to a modest degree in the entire circumstances. The fact that the applicant is aged 70, and has no prior convictions, did not loom large in the sentencing synthesis where this offence was concerned.
Ground 4
It was submitted for the applicant that the sentence on Charge 2 and the order for cumulation were manifestly excessive because:
(1) The applicant had no prior convictions, he pleaded guilty, it was a single act, the offending was opportunistic, physical contact was limited, the applicant did not attempt to maintain contact when the complainant pulled away, and the episode was fleeting.
(2) The fact that the complainant had a cognitive impairment and, for that reason, was vulnerable, could not be found as a matter of aggravation because the applicant did not prey upon that vulnerability to undertake the offending.
(3) The applicant did not fall to be sentenced as a serious sexual offender in respect of Charge 2, although the record of orders, wrongly, declares him to be a serious sexual offender in respect of that charge.
(4) Although a presumption of cumulation applied to Charge 4, which justified some cumulation between the sentences on that charge and on Charge 2, cumulation of a whole year of the sentence imposed on Charge 2 was manifestly excessive.
It was submitted for the respondent that the sentence of two years’ imprisonment, the maximum penalty for the offence being ten years, was not manifestly excessive because:
(1) The offending involved the indecent assault of a 23 year old cognitively impaired woman, a victim who was vulnerable and who was entitled to feel safe in her own home.
(2) The offending was opportunistic, the applicant taking advantage of the complainant’s desire to borrow his car by saying to her words to the effect of, ‘You look after me, I’ll look after you’.
(3) The victim was too frightened to disclose the offending to anyone else.[17]
[17]The Summary of Prosecution Opening asserted that it was not until the police became involved in connection with the investigation of the Commonwealth offences that the victim disclosed the offending.
(4) The victim impact statement showed that the complainant was harmed by the offending.
(5) The Judge ordered only a modest degree of cumulation, so as to reflect a distinct and different instance of offending involving another individual victim.
Analysis
In my opinion, fully allowing for the circumstances which made this offence more serious than it might superficially appear, the sentence imposed on Charge 2 was outside the bounds of the reasonable exercise of the judicial discretion. But whether the applicant should be granted leave to appeal on Ground 4 requires further consideration — as to which, see later.
Ground 5
It was submitted for the applicant that:
(1) Charge 3 involved the transmission on a single date to a single user of a relatively small number of images, 13 in all.
(2) There was no sophistication to what the applicant did. He did not use file sharing or encrypted software.
(3) There was no evidence that the transmission was for profit. The objective gravity of the offence turning on the nature and content, the volume, the purpose and profit,[18] this sentence was manifestly too high, even allowing that 11 of the 13 images fell within Category 5.
[18]Counsel cited DPP v D’Alessandro [2010] VSCA 60 [21].
It was submitted for the respondent that:
(1) The sentence on Charge 3, involving the transmission of 13 images to another Facebook user, was not manifestly excessive. The majority of the images were identified as falling within the highest level of depravity, which includes material featuring sadism, bestiality, humiliation[19] or child abuse.
[19]For example, urination, defecation, vomit, and bondage.
(2) The offending involved the transmission of child pornography to another, which linked the applicant more closely to the child pornography market as an active, and not merely passive participant.[20]
[20]The respondent cited Hutchins v Western Australia [2006] WASCA 258 [26]; Heathcote (a pseudonym) v The Queen [2014] VSCA 37 [42].
(3) The transmission of child pornography material contributes to the general problem of child pornography, as it creates a market for the continued corruption and exploitation of children.[21]
[21]R v Coffey (2003) 6 VR 543, 552; R v Cook, ex parte DPP (Cth) [2004] QCA 469 [21]; R v Jongsma (2004) 150 A Crim R 386, 395 [14]; Heathcote (a pseudonym) v The Queen [2014] VSCA 37 [40].
(4) Child pornography is not a victimless crime, albeit that the victims are unidentifiable. Such offending occurs at an international level.
(5) The maximum penalty for the Charge 3 offence, 15 years’ imprisonment, provided an unequivocal indication that the offence is viewed by the legislature as being very serious. The maximum penalty of the charge increased from ten years to 15 years’ imprisonment in 2010.
(6) General deterrence is the paramount consideration when sentencing an offender for a child pornography offence.
(7) Specific deterrence was a factor of considerable importance in sentencing this applicant, given his demonstrated sexual interest in young children, the breadth of his offending, the conversations relating to actual children, one of whom he had already abused, and the lengthy period of his offending.
Analysis
In my opinion, it is not reasonably arguable that the sentence on Charge 3 was manifestly excessive. It is true that the transmission involved a single instance, was directed to a single recipient, and that the number of images transmitted was not large. On the other hand, the nature of the images transmitted was of an extreme kind; and transmission necessarily opened up the risk of re-transmission. The submissions for the respondent as to the gravity of such offending, the paramount importance of general deterrence and the significance of special deterrence for this applicant were persuasive.
Ground 6
It was submitted for the applicant that the Judge erred in assessing the offending the subject of Charge 4 as ‘a very serious example’ of the offence of possessing child pornography, this resulting in a sentence that is manifestly excessive in all the circumstances.
In support of this Ground, the applicant submitted that:
(1) Putting the 13 images the subject of Charge 3 to one side, the applicant was shown to possess a total of 32 images and seven videos. Included within the former were 13 Category 1 and 13 Category 5 images. The latter included two in Category 4 and one in Category 5.
(2) The charge period of two months, the number of images, and the absence of any evidence of possession for profit meant that it not open to the Judge to find that this was a very serious example of the offence, even having regard to the proportion of Category 5 images. The sentence had been imposed on a person without prior convictions who had pleaded guilty.
It is submitted for the respondent that:
(1) The nature and content of the material possessed, in particular the age of the children and the degree of gravity of the sexual activity depicted, were factors of significance in assessing the objective seriousness of the offending. There was a high proportion of Category 5 material, both images and videos. There was also Category 4 video material. The majority of the material involved was of a highly depraved nature.
(2) Emphasising the broad scope of the possession offence, the child pornography material was located on a number of different storage devices, and duplicates of some of the material was stored on different devices.
(3) Relevant to the importance of specific deterrence, the applicant’s electronic devices revealed internet searches over a period of five years focusing upon child exploitation material.
(4) Further pertinent to specific deterrence, when police executed a search warrant at the applicant’s home, child pornography videos were being played on two computer monitors in his bedroom whilst he was present. Both the videos were classified as Category 4 child pornography material, involving sexual penetration between a child aged between 10 and 12 years and an adult.
(5) There had been an increase in penalty with respect to the possession offence in December 2015, the maximum penalty increasing from five to ten years’ imprisonment. This underlined the legislature’s view of the seriousness of the offence.
(6) The applicant was sentenced as a serious sexual offender with respect to Charge 4, in which circumstances protection of the community was the primary sentencing objective.
Analysis
Having described the circumstances of the offending, the Judge observed that, ‘in all the circumstances … in relation to the Commonwealth charges on the indictment and the state charge of possessing child pornography these are very serious examples of those offences’.[22]
[22]Reasons [42].
There will always be different circumstances which attend the Charge 4 offence. In the present case, the number of images and videos possessed by the applicant was not large. On the other hand, much of the material possessed was of a particularly depraved nature, and some of it was stored on multiple devices. I do not consider it reasonably arguable that the Judge erred by describing this offence, together with the other Commonwealth offences, as serious examples of those offences.
When account is taken of the circumstances pressed in mitigation, in my opinion, it is not arguable that the sentence imposed on Charge 4 was outside the boundaries of the reasonable exercise of the sentencing discretion.
Conclusion
There is no merit to any of the grounds of appeal with the exception of Ground 4. But it is plainly reasonably arguable that the sentence on Charge 2 was far too high. Indeed, it is difficult to conceive that it could be sustained.
The sentence on Charge 2 fed into the total effective sentence on the State charges. There was cumulation of one year of that sentence on the sentence on Charge 4. The reasonable range of sentences on Charge 2, in my view, was not more than three to six months’ imprisonment. Cumulation could only have been of part of such a sentence. So the total effective State sentence was surely affected by what I consider was the greatly excessive sentence on Charge 2.
Eighteen months of the total effective State sentence was fixed as the relevant non-parole period, and the same period fed into the global total effective sentence, and the overall non-parole period.
If this Court concluded that the total effective State sentence should reasonably have been, say, three years and three months’ imprisonment (on the footing of a sentence of six months’ imprisonment on Charge 2, of which three months was cumulated), it might well still conclude that the applicant had failed to satisfy it that the judge erred either by fixing 18 months imprisonment as the non-parole period for the State sentence. But I do not think it can be said that the contrary is not reasonably arguable.
Of course, even if this Court concluded that there must be some reduction in the total effective State sentence and the State non-parole period, it would not necessarily follow that the applicant could successfully impugn the global total effective sentence or global non-parole period. It appears to me very probable that, if there was to be any adjustment at all in the global total effective sentence and non-parole period by reason of the sentence on Charge 2 being manifestly excessive, it would be modest indeed. I am inclined, indeed, to think that it is improbable that there would be any such reduction.
Where, then, does that lead?
Section 280 of the Criminal Procedure Act2009 was substituted by s 5 of Act 48/2012, and a definition of ‘total effective sentence’ was inserted by s 4 of that Act, to meet problems with s 280 in its then form which were exposed in Ludeman v The Queen.[23] In circumstances such as the present, s 280(3) would empower me to substitute a lesser sentence on Charge 2, and to make a different order for cumulation if ‘there is no reasonable prospect that the Court of Appeal would reduce the total effective sentence’. That directs attention to the definition of ‘total effective sentence’, which reads this way:
total effective sentence means the product of individual sentences and orders for cumulation or concurrency of those sentences imposed on a person on the same occasion[24]
[23](2010) 31 VR 606.
[24] Criminal Procedure Act 2009 s 3.
In the present case, on the same occasion, three total effective sentences were imposed — the sentence on the State offences, the sentence on the Commonwealth offences, and the global sentence. Whilst it might be correct, and would meet the intent of the definition, to read the definition as applying only to the global total effective sentence, and whilst that would enable the application of s 280(3) in this matter, in the absence of argument I am not prepared to so conclude.[25] In the event, I consider that the applicant should have leave to appeal on Ground 4 against the sentence imposed on Charge 2. I will refuse him leave to appeal on all other grounds.
[25]Sitting as a single judge I would be reluctant to decide the point anyway.
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