Huggett v R

[2021] NSWCCA 62

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Huggett v R [2021] NSWCCA 62

Hearing dates:

24 November 2020

Date of orders:

9 April 2021

Decision date:

09 April 2021

Before:

Johnson J at [1]
R A Hulme J at [112]
Wilson J at [113]

Decision:

1. Grant leave to appeal with respect to sentence.

2. Appeal dismissed.

Catchwords:

APPEAL – sentence – applicant pleaded guilty to Commonwealth and New South Wales child abuse material offences – whether error concerning co-operation with law enforcement authorities – error not demonstrated – whether sentences manifestly excessive – individual sentences and total effective sentence not manifestly excessive – appeal dismissed

Legislation Cited:

Crimes (Sentencing Procedure) Act 1999 (NSW)

Crimes Act 1900 (NSW)

Criminal Procedure Act 1986 (NSW)

Crimes Act 1914 (Cth)

Criminal Code (Cth)

Cases Cited:

Aboud v R [2017] NSWCCA 140

Burton v R [2020] NSWCCA 127

Fitzgerald v R [2015] NSWCCA 266

Hanna v R (2020) 102 NSWLR 244; [2020] NSWCCA 125

JM v R (2014) 246 A Crim 528; [2014] NSWCCA 297

Kannis v R [2020] NSWCCA 79

Lyons v R [2017] NSWCCA 204

Martin v R [2019] NSWCCA 197

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

Park v R (2020) 282 A Crim R 551; [2020] NSWCCA 90

R v El Hani [2004] NSWCCA 162

R v Gallagher (1999) 23 NSWLR 220

R v Huggett [2020] NSWDC 117

R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174

R v Sukkar [2006] NSWCCA 92

R v XX [2017] NSWCCA 90

Weber v R [2020] NSWCCA 103

Wilson v R (Cth) [2020] NSWCCA 211

Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4

Texts Cited:

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Category:

Principal judgment

Parties:

Owen Huggett (Applicant)
Regina (Respondent)

Representation:

Counsel:
Mr G Porter (Applicant)
Mr APC McGrath (Respondent)

Solicitors:
Kapsis Solicitor (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2017/56513

Publication restriction:

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 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

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Citation:

R v Huggett [2020] NSWDC 117

Date of Decision:

28 February 2020

Before:

His Honour Judge Bennett SC

File Number(s):

2017/56513

Judgment

1. JOHNSON J: By Notice of Application for Leave to Appeal filed on 11 August 2020, the Applicant, Owen Huggett, seeks leave to appeal with respect to sentences passed at the Sydney District Court on 28 February 2020 for an offence of using a carriage service to access child pornography contrary to s.474.19(1)(a)(i) Criminal Code (Cth) and two offences of possession of child abuse material contrary to s.91H(2) Crimes Act 1900 (NSW), the latter being related offences to be dealt with as summary offences under s.166 Criminal Procedure Act 1986 (NSW).

The Sentences

2. Following pleas of guilty, the Applicant was sentenced on 28 February 2020 by his Honour Judge Bennett SC as follows:

1. for the offence under s.474.19(1)(a)(i) Criminal Code (Cth), imprisonment for three years and four months comprising a non-parole period of two years commencing on 20 August 2020 and expiring on 19 August 2022, with a balance of term of one year and four months commencing on 20 August 2022 and expiring on 19 December 2023;

2. for the two offences under s.91H(2) Crimes Act 1900 (NSW), an aggregate sentence of imprisonment for two years commencing on 20 February 2020 and expiring on 19 February 2022.

3. In compliance with requirements concerning aggregate sentencing, the sentencing Judge indicated the sentence for each of the s.91H(2) offences as follows:

1. for the CAN Sequence 1 offence - imprisonment for one year, 11 months and 10 days;

2. for the CAN Sequence 2 offence - imprisonment for one year, nine months and 18 days.

4. The maximum penalty for the offence under s.474.19(1)(a)(i) Criminal Code (Cth) is imprisonment for 15 years.

5. For each of the offences under s.91H(2) Crimes Act 1900 (NSW), the maximum penalty is imprisonment for 10 years. However, as those charges were before the District Court as related offences to be dealt with as summary offences under s.166 Criminal Procedure Act 1986 (NSW), the jurisdictional limit to which the Applicant was exposed for each of those offences was imprisonment for two years.

6. The Applicant was sentenced to a total effective term of imprisonment of three years and 10 months with a non-parole period of two years and six months.

Grounds of Appeal

7. The Applicant relies upon the following grounds of appeal:

1. Ground 1 - the learned sentencing Judge erred in failing to give effect to:

2. (i) s.16A(2)(h) Crimes Act 1914 (Cth); and/or

3. (ii) s.23(1) Crimes (Sentencing Procedure) Act 1999 (NSW).

4. Ground 2 - the sentence was manifestly excessive.

Facts of Offences

8. A detailed Statement of Agreed Facts was tendered at the sentencing hearing and revealed the following facts.

9. On 21 February 2017, the Applicant was being questioned by police in relation to an unrelated matter. In the course of that investigation, police seized the Applicant’s mobile telephone. Police reviewed material on the mobile telephone and located child abuse material saved on the device.

10. On 22 February 2017, police attended the Applicant’s residential address at Canley Heights. He was arrested and cautioned in relation to the possession of child abuse material on his mobile telephone. The Applicant admitted to police that child abuse material could also be found on his laptop computer. Police seized the laptop computer as a result of the Applicant’s admissions.

11. The Applicant agreed to participate in an electronically recorded interview with police. During the interview, the Applicant told police that:

1. he had the mobile telephone that was seized by police for a period of about one week;

2. he had downloaded pictures of naked children from a link he was sent via a chat site called “Chat Step”;

3. he never intentionally saved the pictures;

4. the files downloaded depicted children as young as 10 years old engaging in sexual acts with older men;

5. he knew how to delete files, but could not explain why he did not delete the material; and

6. he was concerned he would be detected by police if he deleted the images, so he did not delete them.

12. The Applicant initially told police that when he realised the files he had downloaded were “inappropriate”, he exited the application and did not look at the material again, but later admitted that he looked at the material at least once or twice after downloading it.

Count 1 - Use Carriage Service to Access Child Pornography Contrary to s.474.19(1)(a)(i) Criminal Code (Cth)

13. The Applicant admitted to using the website “Chatstep.com” to access child pornography material. “Chatstep.com” is a website that allows users to chat online in chat rooms. Users can chat using a nickname or communicate anonymously and do not need to have an account to use the service, but can create an account for photo sharing features and to send private messages.

14. The Applicant admitted that he would enter chat rooms where child pornography material was being made available by other users and access it via a download link. The Applicant said this was the only source that he used to access child pornography.

15. Forensic analysis of the Applicant’s mobile telephone revealed that, on 7 February 2017, the Applicant searched the Google Play Store (where users download applications) for “teen sex chat” and “app for sluts”.

16. The Applicant admitted to police that images were on his mobile telephone through use of the “Google Photos” application and his own Google account. “Google Photos” is a free application which is used to store photo and video files using the internet. Users create a Google account and download the “Google Photos” application to their mobile telephone or computer. Folders on the user’s mobile telephone or computer are linked with “Google Photos” as the application utilises the internet to upload content into the Cloud for a retrieval when a user logs into the “Google Photos” account on a new device.

17. The Applicant downloaded the “Google Photos” application to his mobile telephone on 6 February 2017, which was around the time when he purchased the telephone.

18. Forensic analysis of the Applicant’s mobile telephone revealed that he logged into his “Google Photos” and that 88 child abuse material images had been saved into the Applicant’s Google account between 21 April 2016 and 19 July 2016.

Further Forensic Analysis of the Applicant’s Devices

19. On 8 August 2017, police undertook further forensic analysis of the Applicant’s mobile telephone and laptop computer. This analysis revealed that child abuse material was stored on both devices. The material was classified by police using the Interpol Baseline Categorisation System (“IBCS”). This system comprises the following two categories:

Category 1

Interpol Baseline Categorisation

Material depicting a real pre-pubescent child, and the child is involved in a sex act, witnessing a sex act, or the material is focused/concentrated on the anal or genital region of the child.

Category 2

Other illegal Child Abuse Material

Material depicting a person who is, appears to be, or is implied to be a child, and is depicted or described in a way that reasonable persons would regard, in all the circumstances, as offensive where the person depicted:

• Is a victim of torture, cruelty or physical abuse; or

• Is engaged in or apparently engaged in a sexual pose or sexual activity (alone or in the presence of others); or

• Is in the presence of another person who is engaged in or apparently engaged in a sexual pose or sexual activity; or

• Is exposing the genital area or anal area or breasts of a female child.

CAN Sequence 1 - Possess Child Abuse Material (Mobile Telephone)

20. As noted earlier, a review of the material saved on the Applicant’s mobile telephone identified 88 images of child abuse material. Of these images, police classified 50 as falling into IBCS Category 1 and 38 as falling into IBCS Category 2.

21. The child abuse material contained on the mobile telephone included children as young as seven years old and up to 14 years old and variously depicted:

1. naked or partially naked children in sexually suggestive poses;

2. a young girl holding an adult penis near her mouth;

3. seven-year old girls being penetrated by an adult male;

4. two young children engaging in sexual intercourse with each other; and

5. multiple images of children performing oral sex on adult males.

CAN Sequence 2 - Possess Child Abuse Material (Laptop)

22. Police used the discovery examination method to analyse the Applicant’s laptop computer. This form of examination is conducted in order to determine the quantity and level of child abuse material contained on an exhibit. A random sample is obtained by the examination process and police then reviewed the random sample and nominated files which amount to child abuse material with each file being classified by reference to an IBCS category.

23. Once the investigator has completed the selections, a conservative estimate of the total number of files of interest on the exhibit is extrapolated from the sample selections using proven statistical methods. The statistical breakdown of each exhibit item bears the number of files of interest for each IBCS category with the total number of files examined for each file type.

24. The Applicant’s laptop computer contained 37,000 valid image files. Of these, a random sample of 8,000 was examined and 145 were identified as child abuse material. Utilising statistical methods, it was estimated that the laptop computer contained between 544 and 796 image files that constituted child abuse material. Of the 145 sample images, 71 (48.96%) were IBCS Category 1 and 74 (51.01%) were IBCS Category 2.

25. The video files saved on the laptop computer were reviewed using the discovery examination method. One video file was determined to be child abuse material and was classified as falling into IBCS Category 1. The video file included various scenes of a six-year old girl performing oral sex on an adult male. Later in the video, the adult male was shown engaging in sexual intercourse with the six-year old girl.

26. The child abuse material was saved into various folders within the laptop computer’s hard drive such as in the saved pictures and Dropbox folders. There were also child abuse material specific folders with names such as “little sluts love cock” and “nude little girls”.

27. A review of the sample images showed that the child abuse material depicted at least 25 different victims.

Procedural History in Local and District Courts

28. The proceedings against the Applicant had a chequered and somewhat circuitous history which was summarised by the sentencing Judge in his sentencing remarks: R v Huggett [2020] NSWDC 117 at [3]-[23]. His Honour observed (at [3]) that the utility of the Applicant’s pleas of guilty was qualified because of the history of the prosecution which led eventually to imposition of sentence on 28 February 2020.

29. The Applicant was first allowed bail on 27 February 2017. After various adjournments, with the Applicant being sometimes represented and sometimes unrepresented, the Applicant pleaded guilty in the Parramatta Local Court on 9 January 2018, and was committed for sentence to the District Court. The proceedings reached the District Court on 2 February 2018 and were adjourned to 2 March 2018 for the Applicant to seek legal aid.

30. Thereafter, the Applicant appeared on some occasions and did not appear on others, leading to the issue of a bench warrant for his arrest. The Applicant was arrested and came before the Parramatta District Court once again on 11 May 2018, this time represented by a solicitor from Legal Aid NSW.

31. The matter was set down for a sentencing hearing on 21 August 2018 when the Applicant pleaded guilty to two counts on an indictment with the proceedings being further adjourned.

32. The matter was listed once again on 12 November 2018, but did not proceed as the Applicant’s counsel informed the Court that his client no longer wished to adhere to his plea of guilty to the remaining count on the indictment. The matter was adjourned to 31 January 2019 for mention, and then to 7 March 2019 when the Applicant abandoned his application to withdraw his plea with a further hearing being fixed for 8 July 2019.

33. On 8 July 2019, the lawyer representing the Applicant indicated that there was a conflict and, as a result, the proceedings were adjourned again to a later date, with orders being made for service and filing of evidence relevant to a renewed application to withdraw the plea of guilty.

34. On 30 October 2019, the matter came before his Honour Judge Bennett SC, when a further adjournment was sought to prepare an application to withdraw the plea of guilty. The adjournment application was refused and the hearing of the application for leave to withdraw the plea of guilty commenced and was adjourned part-heard until 5 November 2019. On that day, the Applicant’s lawyer announced that the application to withdraw the plea of guilty would not be pursued.

35. The matter was adjourned to 17 December 2019, part-heard before his Honour, for determination of sentence, but due to illness, his Honour could not sit and the hearing was adjourned until 5 February 2020.

36. On 5 February 2020, the Applicant was rearraigned upon the first count in the indictment and, after some delay and allowance of further time for the Applicant to consult with his counsel, he pleaded guilty to the offence under s.474.19(1)(a)(i) Criminal Code (Cth). The two s.91H(2) offences were read and, after some further delay when the Applicant again consulted with his representatives, he pleaded guilty to those charges.

37. Against that protracted history of delay, his Honour indicated that he would allow a utilitarian discount of 10% when sentencing for the Commonwealth offence with the same discount to be applied with respect to the State offences: R v Huggett at [20].

38. His Honour indicated that an aggregate sentence would be fixed for the State offences with a separate sentence for the Commonwealth offence.

The Applicant’s Subjective Circumstances

39. The Applicant was born in February 1984 and was 22-23 years old at the time of the offences.

40. The Applicant had a prior criminal history. In 2007, he was fined and disqualified at the Bankstown Local Court for offences of driving whilst under the influence of alcohol or a drug and driving whilst his licence was suspended. In 2010, he was fined and disqualified at the Burwood Local Court for driving with the high-range PCA and driving on an expired licence.

41. In 2015, the Applicant was ordered to perform community service and was disqualified from driving for offences of driving at a speed or manner dangerous to the public, possession of a prohibited drug and other driving offences. In 2017, the Applicant was fined at the Bankstown Local Court for possession of a prohibited drug. In 2018, he was once again fined at the Parramatta Local Court for possession of a prohibited drug.

42. Given the delay in the sentencing proceedings due to the conduct of the Applicant, a number of presentence reports were before the sentencing Judge. Presentence reports dated 11 September 2017 and 26 July 2018 were accompanied by a sentencing assessment report dated 10 December 2019. In the sentencing assessment report of 10 December 2019, it was noted that the Applicant “blamed his ex-partner for downloading child pornography material on his devices” and that he took “no responsibility for the offence”.

43. A report of Laura Durkin, psychologist, dated 6 August 2018 was tendered in the Applicant’s case on sentence. In addition, references were provided by the Applicant’s parents (dated 16 December 2019) and the Applicant’s then partner (dated 17 December 2019).

The Sentencing Remarks

44. Reference has been made already to aspects of the sentencing remarks concerning the tortuous history of the proceedings as a result of the Applicant’s vacillating approach as to whether he would maintain his pleas of guilty or seek to withdraw them.

45. His Honour said with respect to the discount for guilty pleas to the State offences and issues of contrition and remorse (at [22]-[23]):

“22   It does not follow that the discount for the state offences would be applied to the jurisdictional limit of two years applicable to the New South Wales offences if the sentence I select for those offences falls at that level, or above it. The benchmark is the maximum penalty for the offences, which could have been prosecuted on indictment. Thus, if upon the synthesis of the relevant material for the determination of those sentences I find that it is appropriate that one or both of the indicative sentences exceeds two years and that would have been the sentence imposed upon an indictable prosecution, it is to that result to which the discount will be applied. The sentences though could exceed two years at this level of prosecution.

23   His vacillation throughout the conduct of these proceedings and his explanations for the conduct given from time to time is a concern, and challenge the proposition that he has demonstrated appropriate remorse and contrition for these offences. However, this notwithstanding, he must be given some consideration for contrition and remorse, limited though it might be. I have considered the strength of the Crown case and the inevitable finding of guilty in contested proceedings. I find that his ultimate decision was reached, at least in part, upon recognition of the wisdom of the advice given to him from time to time by the array of lawyers who advised that he should admit his crimes.”

46. The sentencing Judge set out extracts from evidence given by the Applicant on different occasions in the District Court before Acting Judge Grogin on 21 August 2018 (R v Huggett at [25]-[26]) and when pursuing his application to withdraw his guilty plea before his Honour Judge Bennett SC on 30 October 2019 (R v Huggett at [27]-[30]).

46. His Honour referred to aspects of the evidence concerning the Applicant’s substance abuse and the contents of presentence reports and the sentencing assessment report with respect to the Applicant’s attribution of blame for these offences to his ex-partner: R v Huggett at [31]-[44].

47. It was noted that the Applicant denied any sexual interest in children and young people and asserted that he had never experienced arousal in response to children: R v Huggett at [42]. His Honour observed that the Applicant had not given evidence in the sentencing proceedings conducted before him, and noted that the description of the offences contained in the Agreed Statement of Facts had been supplemented by examination by the Court of some of the images: R v Huggett at [45].

48. After recounting the facts, the sentencing Judge made an assessment of the objective gravity of the offences at [68]:

“The task that I have to perform includes an assessment of the objective gravity of these offences. The material as described and as exhibited to me, and the circumstances in which it came to be on the devices to which the offender had access, on my assessment, places the objective seriousness below mid-range in each case. I have taken into account, particularly with regard to the New South Wales offences, the number of images that were discovered in the course of the investigation. The submission made on behalf of the offender that an alternative to incarceration is within range in the determination of this matter, I do not accept. There is nothing less than full-time custody appropriate for the misconduct to which the offender has admitted in these proceedings.”

50. After addressing the Applicant’s subjective circumstances, his Honour then returned to the issues of contrition, remorse and acceptance of responsibility at [86]-[87]:

“86   The submissions written on his behalf reflect the challenge that is offered with regard to the way this matter has been conducted over the years, impacting upon the assessment of contrition, but, as I believe I have already indicated, he has some benefit for some contrition, ultimately accepting what he has done and finally adopting what was correct advice given to him by his legal representatives from time to time.

87   I am reminded that at certain points, in contrast to his latter oral evidence, the offender accepted responsibility for his offending and, at least at those occasions, demonstrated contrition and remorse, but it must be said he undid that with his later attitudes. I agree with the submission, ultimately, that there should be some weight given to some demonstration of contrition and remorse.”

51. By reference to the Crown sentencing submissions, his Honour noted relevant sentencing principles concerning child pornography offences under the Criminal Code (Cth) and s.91H(2) Crimes Act 1900 (NSW), with the Court noting (at [95]) the importance of general deterrence:

“General deterrence has a significant if not primary role to play in child pornography offences. I am reminded that this occurs at an international level. It is increasingly prevalent unfortunately, with the advent of technology and it is challenging when attempts are made to interdict or detect the perpetrators. There is a market created by [persons] such as the offender and the public interest in promoting the protection of children, wherever they are in the world, is of paramount consideration, a proposition with which I agree.”

52. With respect to the Applicant’s prospects or rehabilitation and the issue of concurrency and accumulation, his Honour said at [99]-[100]:

“99   I have had regard to the prospects of rehabilitation and it would seem to me, on the material I have, that he has good prospects and they will be built upon with a longer period of parole than might otherwise have been imposed after he has served what should be the custodial component for this misconduct. The evidence before me is at least suggestive of efforts to disengage from his antisocial peers and misuse of methylamphetamine.

100   There is to be some slight accumulation between the sentences for the two state offences. I note that the offences involved different devices with different sets of material, and the offence charged on the indictment targets different conduct, but there must be, I would suggest, a significant overlap between the sentences to be identified. I have considered whether an alternative to full-time custody is appropriate. I am satisfied that there is not an alternative in the circumstances of this offending.”

53. His Honour announced the sentences and indicative sentences, noting that the Applicant had been allowed a 10% discount for the utilitarian value of his late pleas of guilty for the State offences and the Commonwealth offence in accordance with the principles in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4.

54. On the application of the Crown, his Honour made a forfeiture order under s.23ZD Crimes Act 1914 (Cth) with respect to the Applicant’s Huawei mobile telephone and the Hewlett Packard laptop computer.

Ground 1 - Claim of Error in Failing to Give Effect to s.16A(2)(h) Crimes Act 1914 (Cth) and/or s.23(1) Crimes (Sentencing Procedure) Act 1999 (NSW)

Submissions for the Applicant

55. It was submitted for the Applicant that the sentencing Judge had failed to take into account the Applicant’s co-operation with law enforcement authorities in circumstances where he was entitled to have that aspect applied favourably under s.16A(2)(h) Crimes Act 1914 (Cth) for the Commonwealth offence and under s.23(1) Crimes (Sentencing Procedure) Act 1999 (NSW) for the State offences.

56. It was submitted that the Applicant had volunteered to police that further child abuse material was to be found on his laptop computer and that, in this way, he had provided assistance to the authorities which ought to have been reflected in the sentences passed. Reliance was placed, as well, upon the admissions made by the Applicant to police in the record of interview.

57. Mr Porter, counsel for the Applicant, relied upon Weber v R [2020] NSWCCA 103 at [66]-[68] concerning the Commonwealth offence and R v XX [2017] NSWCCA 90 at [31] with respect to the State offences.

58. Counsel submitted that the sentencing Judge had referred to matters contained in the Agreed Statement of Facts as part of the factual narrative, but had not referred expressly to the relevant provisions of the Commonwealth and State legislation concerning assistance to authorities. It was submitted that it was not expressly stated that the Applicant’s assistance was being taken into account in his favour on sentence in a quantified fashion or otherwise.

59. In these ways, it was submitted that the sentencing Judge had fallen into error.

Submissions for the Crown

60. The Crown submitted that the sentencing Judge had regard to the Applicant’s assistance in informing police about the presence of child abuse material on his laptop computer. It was submitted that this matter was taken into account in accordance with principles expressed in R v Gallagher (1999) 23 NSWLR 220 at 227-228 and R v Sukkar [2006] NSWCCA 92 at [55].

61. The Crown submitted that this was a factor to be taken into account, in the exercise of instinctive synthesis, as a subjective factor operating in favour of the Applicant without the need to quantify any allowance in that respect: R v El Hani [2004] NSWCCA 162 at [68]. The sentencing Judge made clear that the Applicant had co-operated with police from the outset and that this was taken into account in his favour sufficiently and in accordance with the approach in Aboud v R [2017] NSWCCA 140 at [49]-[58].

62. The Crown emphasised that the laptop computer gave rise to the CAN Sequence 2 offence under s.91H(2) Crimes Act 1900 (NSW) with the Commonwealth offence and the CAN Sequence 1 s.91H(2) offence relating to the Applicant’s mobile telephone which the police had obtained prior to any co-operation or assistance from the Applicant.

63. The Crown submitted that the first ground of appeal had not been established.

Decision

64. An assessment of the Applicant’s subjective circumstances, including his assistance to authorities and issues of contrition and remorse, was complicated in this case by the Applicant’s protracted attempts to blame his ex-partner for the offences and to advance, but not press, applications for leave to withdraw his pleas of guilty. Despite the Applicant’s initial assistance to investigating police, including his volunteering that the laptop computer contained child abuse material, he thereafter for a period of years fluctuated and vacillated in the Courts before ultimately confirming his guilt of the three offences for which sentence was passed in February 2020.

65. It is the case that the Applicant volunteered to police on 22 February 2017 that child abuse material could be found on his laptop computer. It should be borne in mind that the previous day, the police had taken the Applicant’s mobile telephone which had been examined and found to contain child abuse material. It was for this reason that police returned to the Applicant’s premises on 22 February 2017.

66. In my view, it is reasonable to approach this issue upon the basis that there was likely to be further investigation by police including, if necessary, the execution of a search warrant to determine whether child abuse material was contained on any other electronic device held by the Applicant (including the laptop). This is the common, if not, invariable, scenario emerging in police investigations of child abuse material offences.

67. It was for the Applicant to establish, on the balance of probabilities, that he provided assistance to law enforcement authorities if he wished to have the benefit of this mitigating factor on sentence.

68. There was no evidence or material before the sentencing Judge explaining what the police intended to do (or did not intend to do) when they returned to the Applicant’s premises on 22 February 2017. There was certainly no police statement indicating any assistance which the Applicant had provided.

69. There was brief reference in the Crown written submissions in the District Court to s.16A(2)(h) Crimes Act 1914 (Cth) and s.23(1) Crimes (Sentencing Procedure) Act 1999 (NSW) with a statement that the Applicant had participated in a recorded interview, following the execution of a search warrant, and had made admissions and provided information about the methods used to access child abuse material.

70. No further submission was made on behalf of the Applicant in the District Court which sought to emphasise this factor on sentence.

71. The sentencing Judge referred to this aspect in his sentencing remarks. I am satisfied that his Honour had regard to this factor and took it into account on sentence.

72. The high water mark of the Applicant’s submission under this ground relates to his volunteering to police that the laptop computer also contained child abuse material. This aspect concerned one of the State offences only and not the Commonwealth offence.

73. Accordingly, any assistance provided by the Applicant concerning the presence of child abuse material on the laptop did not advance his position for the purpose of s.16A(2)(h) Crimes Act 1914 (Cth).

74. With respect to the State offences, his Honour had regard to the co-operation provided by the Applicant when determining sentence on these counts.

75. It has not been demonstrated that the sentencing Judge failed to give effect to the relevant provisions of the Commonwealth and State legislation concerning assistance when determining sentence in this case.

76. I reject the first ground of appeal.

Ground 2 - the Claim that the Sentence was Manifestly Excessive

Submissions for the Applicant

77. Mr Porter submitted that the starting point sentence for the Commonwealth offence, prior to the application of a 10% discount, comprised imprisonment for slightly in excess of three years and eight months. It was submitted that this was a substantial sentence for an access child pornography material offence under s.474.19(1) involving 88 images.

78. Counsel for the Applicant submitted that the accumulation by six months for the State offence, which involved the same 88 images, supported the Applicant’s claim of manifest excess in this case. Whilst accepting that the question of concurrency and accumulation lay within the exercise of his Honour’s sentencing discretion, it was submitted that the sentencing outcome gave rise to a manifestly excessive sentence.

79. Whilst accepting that the subjective circumstances of the Applicant should not overshadow the objective gravity of the offences and that general deterrence was a matter of real significance, counsel submitted that there are a number features that operated in his favour, being:

1. his age and the absence of relevant criminal history particularly of a like nature;

2. some limited remorse and contrition;

3. his pleas of guilty;

4. his good prospects of rehabilitation with the evidence being “suggestive of efforts to disengage from his antisocial peers and misuse of methylamphetamine”.

80. Counsel submitted that, on an objective analysis, the finding that all offences were below mid-range was not reflected in the sentences ultimately imposed.

81. It was submitted that when consideration is had to the maximum penalties, the circumstances of the offending and matters relevant to assessing objective seriousness together with the Applicant’s subjective features, no reasonable exercise of sentencing discretion could have led to an overall term of imprisonment for just under four years with a non-parole period of two years and six months for the combination of State offences and the Commonwealth offence.

82. It was submitted that the sentences imposed upon the Applicant were manifestly excessive and that this Court should intervene to resentence the Applicant.

Submissions for the Crown

83. The Crown emphasised the need, in considering this ground of appeal, for the Applicant to establish the sentence or sentences under challenge was or were unreasonable or plainly unjust. In this regard, the Crown emphasised that the State offences were dealt with by way of an aggregate sentence: JM v R (2014) 246 A Crim 528; [2014] NSWCCA 297 at [40](11)-(13).

84. The Crown submitted that an aggregate sentence of imprisonment for two years for the two State offences was well within the discretionary range open to the sentencing Judge having regard to the assessment of objective seriousness of each offence as “below the mid range”. It was submitted that assessment was open given the total number and nature of the child abuse material that the Applicant possessed, and in particular:

1. the two devices contained a total of between 632 and 884 images and videos of child abuse material;

2. approximately 50% of this child abuse material fell within the worst category of classification, namely IBCS Category 1; and

3. the child abuse material depicted at least 25 real victims.

85. The Crown pointed to recent decisions of this Court and submitted that comparable sentences have been upheld for possession of much lower numbers of images of child abuse material: Martin v R [2019] NSWCCA 197 at [19], [45]-[54]; Kannis v R [2020] NSWCCA 79 at [4], [112] and [316](i); Burton v R [2020] NSWCCA 127 at [4], [16], [40] and [43] and Wilson v R (Cth) [2020] NSWCCA 211 at [3](i), [24] and [74].

86. With respect to the sentence for the Commonwealth offence, the Crown acknowledged that the sentence could be characterised as a stern sentence for an offence under s.474.19(1) Criminal Code (Cth), but submitted that it lay within the discretionary range open to the sentencing Judge having regard to sentencing principles for child pornography offences and comparable sentences.

87. It was submitted that a sentence with a nominal starting point of imprisonment for three years and eight months, before the 10% discount for the plea of guilty, fell within the discretionary range open given the assessment of objective seriousness of the offence as “below the mid range”. The Crown pointed to the following features in this respect:

1. the Applicant visited the website “Chatstep.com” and obtained a large number of images of child abuse, being 88 images;

2. the Applicant copied and saved these 88 images into his Cloud-based “Google Photos” account;

3. the Applicant committed the offence over an extended three-month period and it was not isolated or impulsive offending;

4. the child abuse material depicted real children between the ages of seven and 14 years;

5. the child abuse material also included children engaging in penetrative sex with adults, being an especially serious form of child sexual assault.

88. The Crown submitted that the Applicant used the internet in two distinct ways:

1. to obtain the child abuse material from the website “Chatstep.com”; and

2. to separately copy and save the child abuse material into his own Cloud-based “Google Photos” account.

89. In addition, the Applicant later downloaded the child abuse material onto his mobile telephone.

90. It was submitted that the sentence for the Commonwealth offence was comparable to other sentences considered by this Court under s.474.19(1) Criminal Code (Cth) as summarised in R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174, Fitzgerald v R [2015] NSWCCA 266 and Lyons v R [2017] NSWCCA 204.

91. With respect to the total effective sentence, the Crown submitted that it was open to the sentencing Judge to apply a level of accumulation adopted in accordance with the totality principle and that no error had been demonstrated in this respect.

Decision

92. This ground of appeal was argued upon the basis that the individual component sentences for the Commonwealth offence and the aggregate sentence for the State offences were themselves manifestly excessive, as was the total effective sentence imposed by the sentencing Judge. Although the ground of appeal is not expressed in this way, I will consider it upon this basis.

93. In Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 (at [443]), R A Hulme J (Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) summarised the principles to be applied on a sentence appeal where there is a claim of manifest excess:

“When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v R (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v R (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v R (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v R (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 at [59].

•   Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

•   Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

•   It is not to the point that this Court might have exercised the sentencing discretion differently.

•   There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

•   It is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

94. The aggregate sentence of two years’ imprisonment for the two offences under s.91H(2) Crimes Act 1900 (NSW) took into account the Applicant’s possession of the child abuse material contained on his mobile telephone and on his laptop. Each offence carried a maximum penalty of 10 years’ imprisonment although, as the matters were being dealt with as related offences, the jurisdictional limit was two years’ imprisonment for each offence. His Honour’s approach (R v Huggett at [22] at [45] above) was correct: Park v R (2020) 282 A Crim R 551; [2020] NSWCCA 90; Hanna v R (2020) 102 NSWLR 244; [2020] NSWCCA 125 at [5], [86]-[87] and [99].

94. His Honour had regard to the number of images contained on each device and the IBCS classification of the material, as well as the number of real victims depicted. It was open to the sentencing Judge to conclude that the objective seriousness for each of the State offences was “below the mid range”.

95. Having regard to the Applicant’s subjective circumstances, which produced a somewhat complicated and mixed outcome for him, it was open to the sentencing Judge to conclude that an aggregate sentence of two years’ imprisonment was appropriate for the State offences.

96. This was an unusual case in that, despite the Applicant being found with a mobile telephone and then a laptop computer containing significant quantities of child abuse material and then indicating a plea of guilty in the Local Court, a very considerable period of time was spent in the District Court whilst the Applicant delayed the proceedings and vacillated as to whether he would maintain a plea of guilty or seek to go to trial. This was apparently on the basis of blaming his ex-partner for the child abuse material contained on his own mobile telephone and laptop.

97. A consequence of this approach was that the Applicant obtained a 10% discount for his pleas of guilty and a cautious and limited finding in his favour with respect to remorse. It should also be observed that this approach by the Applicant raised a significant issue concerning his level of insight into the offending which relates (in turn) to his prospects of rehabilitation and risk of reoffending. These features served to complicate the sentencing exercise in this case in a manner which did not assist the Applicant, but which was the product of his unwillingness to face the consequences of his offending in a timely way.

98. The child abuse material located on his mobile telephone and the laptop computer was serious in its number and content. The total number of images was substantial although there will always be some cases where a larger number of images is involved in the offending.

99. Having regard to all factors which were relevant to imposition of sentence for the State offences, I am not persuaded that the aggregate sentence of imprisonment for two years was manifestly excessive.

100. The Commonwealth offence related to the 88 images located on the Applicant’s mobile telephone. It is important to keep in mind the mischief to which s.474.19 Criminal Code (Cth) is directed. In R v Porte, this Court said at [55]-[56]:

“55   It is not uncommon to encounter the circumstances present in this case - a combination of a Commonwealth access offence under s.474.19 Criminal Code (Cth) and an offence under relevant State legislation with respect to possession of child abuse material. In R v Gordon [2009] QCA 209; (2011) 1 Qd R 429, Keane JA (as his Honour then was) (De Jersey CJ and Margaret Wilson J agreeing) said at 436-437 [37]:

‘The Queensland offence [of possession] did not involve use of the internet. It cannot be said that the use of the internet to procure the images adds little to the criminality involved in their possession. Such a view would fail to recognise that the vice attacked by the Commonwealth legislation is the use of the internet to access the market for child pornography and the consequent boost to that market of which internet access is such an important element.’

56   The interrelationship between Commonwealth and State offences was addressed in R v Fulop [2009] VSCA 296; 236 FLR 376, where Buchanan JA (Nettle JA agreeing) said at 379 [11]-[13]:

‘11    The elements of the offences overlapped but they were not identical. While the appellant was able to obtain possession of the pornographic material through a carriage service, the service also enabled users to disseminate the material. The Commonwealth offence concentrates upon the internet because, as the Parliamentary Secretary to the Minister said in his Second Reading Speech:

Law enforcement agencies estimate that around 85% of child pornography seized in Australia is distributed via the internet. By focusing on the internet, these new Federal offences target the very heart of the abhorrent child pornography industry.

12 On the other hand, the state offence is not concerned with the means by which the offender gains possession of pornographic material. The appellant could gain access to the material without possessing it. In this case, he took a further step by downloading the material and thereby obtained possession of it. The Commonwealth offence was concerned with the images found on the hard drive of the appellant's computer. The state offence was constituted by the CDs and DVDs made and retained by the appellant. In my opinion, the offences did not overlap to such an extent that it rendered inappropriate the degree of cumulation ordered by the sentencing judge’.”

102. I accept the Crown submission that the Applicant used the internet in two distinct ways, in a manner which gave rise to the Commonwealth offence, in that he obtained the child abuse material from the website “Chatstep.com” and then copied and saved the material into his own Cloud-based “Google Photos” account.

103. The Applicant’s Commonwealth offence constitutes a good example of the role of the internet in accessing, obtaining, moving and storing child abuse material. The ease with which the Applicant was able to undertake these tasks points to the separate criminality accommodated by the Commonwealth offence and the need for an appropriate level of punishment which reflects, as well, the significant need for general deterrence in accordance with the principles laid down when sentencing for this class of offence.

104. After considering sentences imposed in a range of other cases, this Court said in Fitzgerald v R at [50] that the sentencing pattern revealed a range of head sentences of imprisonment between 18 months and five years after a discount for a guilty plea. Counsel for the Applicant submitted that care was required before reliance is placed on what was said in Fitzgerald v R, as the number of images and of child victims was much greater in that case than the present case. It is important to keep in mind that the Court in Fitzgerald v R was considering a range of other sentencing decisions. The conclusion expressed by the Court with respect to sentencing outcomes in various decisions, ought not be read down by reference to the facts of that particular case.

105. The maximum penalty for the Commonwealth offence was imprisonment for 15 years. Having regard to the objective gravity of the Commonwealth offence and the subjective circumstances of the Applicant (with their particular complications as discussed earlier), I am not persuaded that a sentence of imprisonment for the Commonwealth offence of three years and four months with a non-parole period of two years was manifestly excessive.

106. With respect to the total effective sentence, there was partial accumulation for a period of six months’ imprisonment related solely to the State offences. His Honour was aware that one of the s.91H(2) offences involved the same 88 images as the s.474.19(1) offence. However, as noted earlier, different criminality was involved in the Commonwealth offence.

107. The total effective sentence paid due regard to the different criminality involved in the three offences, together with areas of overlap which bore upon issues of concurrency, accumulation and totality. The total effective sentence had regard, as well, to identification of an effective minimum sentence and a period of conditional liberty by way of parole for the Commonwealth offence.

108. I am not persuaded that the total effective sentence was manifestly excessive.

109. I reject the second ground of appeal.

Conclusion and Orders

110. The Applicant has not made good either of his grounds of appeal.

111. I propose the following orders:

1. grant leave to appeal with respect to sentence;

2. appeal dismissed.

112. R A HULME J: I agree with Johnson J.

113. WILSON J: I also agree with Johnson J.

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Decision last updated: 09 April 2021