James v The Queen

[2015] NSWCCA 97

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	James v R [2015] NSWCCA 97
Hearing dates:	1 July 2013, 8 May 2015
Date of orders:	15 May 2015
Decision date:	15 May 2015
Before:	Hoeben CJ at CL at [1] Fullerton J at [1] Schmidt J at [1]
Decision:	Leave to appeal be allowed, but the appeal be dismissed.
Catchwords:	CRIMINAL LAW - sentence appeal - 16 offences relating to the possession and transmission of child pornography - using a carriage service to cause offence - whether sentencing judge erred in assessing objective seriousness of offences - whether sentences are manifestly excessive
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Code Act 1995 (Cth) Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 (Cth)
Cases Cited:	Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162 Franklin v R [2013] NSWCCA 122 Kentwell v The Queen [2014] HCA 37; 313 ALR 451 McCarthy v R [2011] NSWCCA 64 Minehan v R [2010] NSWCCA 140; 201 A Crim R 243 MPB v R [2013] NSWCCA 213 Postiglione v The Queen (1997) 189 CLR 295 R v Booth [2009] NSWCCA 89 R v De Simoni [1981] HCA 31; 147 CLR 383; 5 A Crim R 329 R v Gent [2005] NSWCCA 370; 162 A Crim R 29 R v Jarrold [2010] NSWCCA 69 R v Knight (2005) 155 A Crim R 252 at [112] and R v MAK (2006) 167 A Crim R 159 Ranguihuna v R [2105] NSWCA 48
Category:	Principal judgment
Parties:	Paul Stephen James (Applicant) The Crown (Respondent)
Representation:	Counsel: A Miller (Applicant) C O’Donnell (Crown)   Solicitors: Hammond Solicitors (Applicant) Commonwealth Director of Public Prosecutions (Crown)
File Number(s):	2010/154421
Publication restriction:	None
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Law Date of Decision: 04 November 2011 Before: Cogswell DCJ File Number(s): 2010/154421

Judgment

1. THE COURT: The applicant seeks leave to appeal against the sentences imposed in the District Court on 4 November 2011 after a jury convicted him of sixteen offences relating to the possession and transmission of multiple still images and multimedia files of child pornography or child abuse material contrary to the Criminal Code Act1995 (Cth) (“the transmission counts”) and the Crimes Act1900 (NSW) (“the possession count”). He was also convicted of using a carriage service to cause offence contrary to s 474.17(1) of the Criminal Code Act (“the Criminal Code”).

2. The first of the transmission offences, committed on 13 April 2010, attracted a maximum penalty of 10 years under s 474.19(1)(a)(iii) of the Criminal Code with the balance of the transmission offences, committed on various days between 2 May 2010 and 2 June 2010, committed in breach of the same section, attracting a maximum penalty of 15 years imprisonment. The maximum penalty for that offence was increased from 10 to 15 years by the Crimes Legislation Amendment (Sexual Offences Against Children) Act2010 (Cth), effective from 15 April 2010.

3. The possession count brought under s 91H(2) of the Crimes Act attracted a maximum penalty of 10 years imprisonment and the use of a carriage service to cause offence contrary to s 474.17(1) of the Criminal Code a maximum of 3 years imprisonment.

4. On the possession count the sentencing judge imposed a fixed term of 4 years to commence on 14 November 2011, accumulated by two months on a fixed term of 1 year on the count relating to use of a carriage service to cause offence. A sentence of 3 years and 8 months imprisonment was imposed on the first of the fifteen transmission offences which was accumulated by two months on the possession count, with each of the remaining fourteen transmission offences attracting sentences of varying lengths between 5 years and 6 months and 6 years and 3 months, each accumulated by one month on the immediately preceding offence in time. This resulted in an overall accumulation of 18 months across the seventeen counts (with a total sentence for the transmission offences being 6 years and 8 months). After partial accumulation with the possession count, a total effective sentence of 7 years and 1 month was imposed with a non-parole period of 4 years and 3 months.

5. The applicant relies upon three grounds of appeal:

1.    His Honour erred in assessing the objective seriousness of each of counts 1 to 15 as being within the mid range of objective seriousness:

a.    His Honour erred in taking into account the fact that there were 800 different children depicted when assessing the objective seriousness of counts 1-15;

b.    His Honour erred in finding that transmitting child pornography was more serious than soliciting child pornography;

c.    His Honour erred in taking into account the possibility that the images transmitted may be further on published by the recipient.

2.    His Honour erred in assessing the objective seriousness of count 17 as being within the mid range of objective seriousness.

3.    The head sentences and non-parole periods are manifestly excessive.

6. In November 2013, Emmett JA delivered the Court’s preliminary judgment in which it was observed:

“In relation to ground 1, which rather subsumed the argument in relation to the others, the applicant submitted that although the sentencing judge adopted the approach of imposing individual sentences for each of the 15 offences he did so referable to the number of child pornography files transmitted irrespective of whether they were images or multimedia files. It was submitted that the sentencing judge thereby failed to take into account a factor relevant to an assessment of objective seriousness of offences of the relevant kind.

It was accepted in argument that the evidence lead on sentence, while in all other respects comprehensive, did not allow for any factual findings of that specific kind to be made since the actual content of relevant files was not in evidence. The sentencing judge expressly observed that while he had information about how many images were transmitted in respect to each offence he did not have information about the range of categories over which those categories were spread so far as each individual offence was concerned.

It is difficult to see how a finding of mid range offending could be made without that evidence. However, it does not necessarily follow that the individual sentences are infected with error for that reason or that without that evidence a finding of low range offending was mandated.

The Court has concluded that the graduated individual sentences imposed for the transmission offences in the absence of any evidence as to the content of the files transmitted in each count are suggestive of error in the sense that the individual sentence or at least some of them appear to be excessive, because of the accumulation of one month over each of the transmission offences and excessive sentence on one of the transmission counts might have an effect on the total sentence imposed and a re­sentencing exercise may be warranted for that reason, the more so the error had infected all of the transmission counts.

It was agreed at the conclusion of argument that were the Court to reacha concluded view that the sentences for the transmission offences were suggestive of error the Court may not ultimately be called upon to re-sentence if, after further consideration of the available evidence, the application elected to lead no further evidence on re-sentence to establish error.

We have formed the view that the sentences for the transmission offences are indeed suggestive of error. Accordingly, the appropriate course would be for the applicant to be given the opportunity to decide whether to adduce further evidence on re-sentencing. If, however, no further evidence were to be adduced to demonstrate error the application would be dismissed.”

7. The matter subsequently came before Fullerton J in December 2013 and February 2014, when further directions were given. The matter remained in the Registrar’s call over list until November 2014, when it was adjourned to 8 May for further hearing. With the consent of the parties the Bench was later reconstituted.

8. It was only on 8 May 2015, that it came to the attention of the Bench that the parties had filed affidavits and submissions in accordance with Fullerton J’s directions, in March and April 2014. How this regrettable delay occurred, is not apparent to the Bench. The appeal ought to have been disposed of, once this material was filed. In the circumstances of this case, fortunately, the delay has had no impact on the outcome of the appeal.

The facts and findings for sentencing purposes

9. During May 2010 an officer of the Australian Federal Police opened a Facebook account under a fictitious name and posed as a 14 year old girl. Between 13 May and 26 May the applicant communicated with the police officer via his Facebook account, believing the police officer was a 14 year old girl. The account features a thumbnail photograph of the applicant. In the chat log of his contact with the police officer the applicant makes reference to sexual activity with another girl of the same age and makes reference to his sexual preference for young girls. This activity grounded the offence under s 474.17(1) of the Criminal Code, namely, using a carriage service in a way that a reasonable person would regard as offensive.

10. His communications with the police officer precipitated the execution of a search warrant on 15 June 2010 at the premises where the applicant was residing, at the time of his contact with the police officer.

11. A Dell laptop computer belonging to the applicant was seized from those premises and subsequently analysed. It was found to contain numerous images and multimedia files of children (from infants to young adolescents), and included material in each of the five categories of child pornography referable to the COPINE typology - an internationally recognised graduated scale of seriousness from 1 to 5 reflecting the sexual activity customarily encountered in the investigation and prosecution of offences involving child pornography. The applicant’s computer also contained 36 images of him in various states of undress.

12. A search of premises at which the applicant was residing at the time the warrant was executed was undertaken, and a blade computer tower located in his bedroom. It was seized by police and subsequently analysed. It also contained numerous child pornography images and multimedia files of children in the same age range and across each of the five COPINE categories of sexual activity.

13. Three of the applicant’s email accounts were subsequently identified by police, each of which used variations of the name “wishmaster”. They were accessed by police. Multiple child pornography images and multimedia files, again within each of the five COPINE categories, were found to have been transmitted by the applicant via these accounts. Of these, fifteen emails sent over a six-week period between 15 April and 2 June 2010 to ten different addresses were the subject of the transmission offences, two of which were sent to the undercover police officer, of which one contained 123 flies - the largest single attachment of child pornography. (His Honour’s reference to fifteen different recipients in his sentencing remarks was an error and conceded to be such by the Crown.) The applicant also attached images of himself to some emails, some of which included sexually suggestive text.

14. The material on both computers totalled in excess of 2000 child pornography images and multimedia files. A breakdown of the exact numbers of files in each of the transmission offences and the possession offence, and a breakdown of the number of files in each of the five COPINE categories was included in the Crown submissions on sentence.

15. For sentencing purposes his Honour calculated the number of individual (that is, not duplicated) child pornography images in the applicant’s possession to be 1675, the number of multimedia flies as 182 and the number of children photographed or filmed in the material at about 800, with the majority aged between 6 and 14 years.

Factual findings for sentencing purposes

16. His Honour was satisfied that there was no commercial aspect to the applicant’s offending and that the greater concentration of files he possessed and transmitted were in the lowest category of activity on the COPINE scale, namely images depicting children in erotic poses. (While this finding was supported by the evidence of the police who analysed the material, we note that files in categories 3 and 4, being respectively non-penetrative and penetrative sexual activity between adults and children, were numbered in the hundreds.) The sentencing judge regarded this number as not insignificant. He also took into account the impact of the exploitation and abuse of children entailed in the offending (see R v Booth [2009] NSWCCA 89 at [40]-[42]) and the importance of the sentence operating in a meaningful way as a deterrent and to denounce and punish the offender for his conduct (see R v Gent [2005] NSWCCA 370; 162 A Crim R 29 at [27]).

17. His Honour found that the possession charge reflected offending at the lower end of mid range offending and the offensive use of a carriage service contrary to s 474.17(1) of the Criminal Code also as offending in the low range. While he accepted that the person the applicant communicated with in committing that offence was not a child, he also noted that the applicant believed the person to be a child and that the contact extended over a two week period. His Honour found each of the transmission offences to be an example of mid range offending and that they were each objectively more serious than accessing child pornography, or causing it to be transmitted to oneself, contrary to subsections (i) and (ii) of s 474.19(1)(a), and possibly more serious than soliciting receipt of pornographic material contrary to subsection (iv), because of the risk of the material being further published by those to whom it was transmitted. That finding, referable to the number of children depicted in the images transmitted being 800, was said to have been wrongly taken into account in the finding that the offending constituted by each of the transmission offences fell in the mid range of objective seriousness. His Honour imposed graduated sentences for the transmission offences according to the differing numbers of images transmitted, with between 2 and 10 images attracting a sentence of 5 years and 6 months; 11 and 25 images a sentence of 5 years and 9 months; 26 and 40 images a sentence of 6 years; and images in excess of 40 a sentence of 6 years and 3 months. This approach is also said by the applicant to reflect error because it failed to discriminate between both the type of file transmitted (that is, between single images or multimedia files - the latter being logically of either a short or long duration) and did not include any categorisation of any of the files according to the COPINE scale.

18. The sentences imposed for the transmission offences are reflected in the following table extracted from the Crown’s original submissions:

Count	Type	Range	No of CP files transmitted	Sentence
1	Transmission	Middle	6 images only	3y 8m
2	Transmission	Middle	19 14 images 5 multimedia files	5y 9m
3	Transmission	Middle	22 images only	6y
4	Transmission	Middle	14 images only	5y 9m
5	Transmission	Middle	123 images only	6y 3m
6	Transmission	Middle	20 17 images 3 multimedia files	5y 9m
7	Transmission	Middle	40 images only	6y
8	Transmission	Middle	23 17 images 6 multimedia files	5y 9m
9	Transmission	Middle	20 17 images 3 multimedia files	5y 9m
10	Transmission	Middle	13 images only	5y 9m
11	Transmission	Middle	5 multimedia files only	5y 6m
12	Transmission	Middle	5 images only	5y 6m
13	Transmission	Middle	12 images only	5y 9m
14	Transmission	Middle	2 multimedia files only	5y 6m
15	Transmission	Middle	3 multimedia files only	5y 6m
16	Offensive use	Lower	n/a	1y
17	Possession	Mid range (towards the bottom)	n/a	4y

(Note: We have included in the third column a breakdown of the number of child pornography files the subject of each count into single image and multimedia files. This is based upon the evidence before the sentencing judge (AB 69-71) but not the subject of comment in his Honour’s sentencing remarks. We also note the Crown’s concession that consistent with his Honour’s approach in imposing graduated sentences, count 3 (which involved the transmission of 22 images) should have attracted a sentence of 5 years and 9 months, and not 6 years.)

The applicant’s case on sentence

19. The applicant did not give evidence at his trial relying upon his denials to police in an ERISP. In a pre-sentence report tendered on sentence he maintained his denials. Unsurprisingly, in the absence of any evidence of contrition his Honour regarded the applicant’s prospects of rehabilitation as limited. There is no challenge to that finding.

20. The applicant was 28 at the time of sentence. He had no criminal record. Although he was unemployed at the time of sentence, he had a past working record as an unskilled labourer. He reported a stable relationship with his mother with whom he resided at the time of sentence, and with his siblings. He also reported being subjected to violence at the hand of his stepfather as a child. He was in regular telephone contact with his father after renewing that relationship in his early adolescence.

21. The applicant tendered a medical report relating to his infant son who suffers a disability and who requires high level care. Although the child was in the full-time care of his mother, the applicant’s former partner, at the time of sentence he continued to be involved in his son’s daily care. His Honour acknowledged the impact a prison sentence would likely have on his infant children and the additional burden that his former partner would have to bear in having sole care of his son, but did not regard it as ameliorating the sentence to be imposed. There is no challenge to that finding.

Ground 1: His Honour erred in assessing the objective seriousness of each of counts 1 to 15 as being within the mid range of objective seriousness:

a.    His Honour erred in taking into account the fact that there were 800 different children depicted when assessing the objective seriousness of counts 1-15;

b.    His Honour erred in finding that transmitting child pornography was more serious than soliciting child pornography;

c.    His Honour erred in taking into account the possibility that images transmitted may be further on published by the recipient.

22. There are two aspects of the first ground of appeal although, to a large extent, they are interrelated. The first concerns what is said to be error in his Honour’s global assessment of the objective seriousness of the fifteen transmission offences within the mid range without examining each individual count and assessing the objective seriousness constituted by that offending. The second aspect identifies particular errors said to have impacted upon the way his Honour assessed the objective seriousness of the offending (viewed globally).

23. Before considering the submissions of counsel it is appropriate to observe that the range of factors relevant to an assessment of the objective seriousness of the transmission and dissemination of child pornography under the Criminal Code (together with possession offences both under the Criminal Code and under the Crimes Act) have been the subject of both restatement, elaboration and refinement in Minehan v R [2010] NSWCCA 140; 201 A Crim R 243. At [94] RA Hulme J enumerated a non-exhaustive list of factors of significance are as follows:

1.    Whether actual children were used in the creation of the material.

2.    The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed.

3.    The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material.

4.    The number of images or items of material – in a case of possession, the significance lying more in the number of different children depicted.

5.    In a case of possession, the offender’s purpose, whether for his/her own use or for sale or dissemination. In this regard, care is needed to avoid any infringement of the principle in The Queen v De Simoni (1981) 147 CLR 383.

6.    In a case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted.

7.    Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination/transmission.

8.    The proximity of the offender’s activities to those responsible for bringing the material into existence.

9.    The degree of planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating or transmitting the material.

10.    Whether the offender acted alone or in a collaborative network of like-minded persons.

11.    Any risk of the material being seen or acquired by vulnerable persons, particularly children.

12.    Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted.

13. Any other matter in s 21A(2) or (3) Crimes (Sentencing Procedure) Act (for State offences) or s 16A Crimes Act 1914 (for Commonwealth offences) bearing upon the objective seriousness of the offence.

24. The discrete factual findings under challenge in Grounds 1(a), (b) and (c) need to be considered referable to the different conduct encompassed by s 474.19(1)(a)(i)-(iv) of the Criminal Code. That conduct includes using a carriage service to access child pornography material (subsection (i)); to transmit it to oneself (subsection (ii)); to transmit, make available, publish, distribute, advertise or promote the material (subsection (iii)); and soliciting the material (subsection (iv)).

25. As we understand the submission of counsel in support of Ground 1(a), it is not that the number of children depicted in the material was irrelevant to an assessment of objective seriousness when the offences were viewed as part of a course of conduct over some weeks, but that his Honour took the number of children into account when assessing the objective seriousness of each of the transmission offences in a way that offends the principle in R v De Simoni [1981] HCA 31; 147 CLR 383; 5 A Crim R 329. The Crown submitted that, properly understood, that finding, as with the other findings the subject of complaint under the first ground of appeal, was not utilised by his Honour in the assessment of the objective seriousness of each offence but as one of a number of overlapping features of the applicant’s offending in possessing and transmitting the material viewed as a course of conduct and, on that basis, properly taken into account on sentence in recognition of the fact that “…the significance of quantity [of images] lies more in the number of different children who are depicted and thereby victimised” as was emphasised in Gent by Johnson J at [99].

26. Although fifteen separate transmission offences were committed, necessarily requiring separate sentences in an “offence specific approach” before consideration was given to questions of concurrency or accumulation (see Cargnello v Director of Public Prosecutions (Cth) [2012] NSWCCA 162 per Basten JA at [94]), the Crown submitted it was open to his Honour to regard the offending as part of a course of conduct over six weeks.

27. It was that feature of the offending upon which the Crown placed significant reliance in meeting the applicant’s submission that the individual sentences (or at least some of them) were excessive and ultimately productive of a total sentence that was unreasonable and plainly unjust. We will return to consider the impact of that submission later in this judgment.

28. In so far as concerns matter (b) in Ground 1, it seems to me to be a self evident proposition that transmitting child pornography to other users (who, it was open to infer in this case, were deliberately anonymised to avoid being identified) carries with it an obvious risk that the material transmitted will be disseminated beyond the named recipient and shared with other internet users who have the same deviant interest and, for that reason, a matter bearing upon the objective seriousness in the non-exhaustive catalogue of factors identified by RA Hulme J in Minehan. We can discern no error in the sentencing judge’s reference to that fact as one of the features relating to the course of conduct in which the applicant engaged in committing the transmission offences.

29. In so far as concerns matter (c) in Ground 1, the applicant submitted that s 474.19(1)(a)(i)-(iv) proscribes conduct in an ascending order of seriousness and, accordingly, his Honour was in error in finding that soliciting child pornography material in subsection (iv) is offending of greater objective seriousness than transmitting the material to either oneself (subsection (ii)) or, relevantly for present purposes, to others (subsection (iii)). In his remarks on sentence his Honour said:

[12]    Next, I take into account that, so far as the offence of transmitting child pornography is concerned, it seems to me to be a more serious example of the crime against s 474.19(1)(a) than some of the other ways in which the crime may be committed. For example, it would be more serious in my opinion than accessing material or causing the material to be transmitted to himself. It may be more serious than soliciting the material. It is more serious because the material does not remain with Mr James to be viewed or accessed. It is actually sent beyond him to somebody else so it is shared with at least one other person that Mr James knows of. He then has no control over its further dissemination. For that reason I regard the way in which he committed the crimes against s 474.19(1)(a) as serious examples of that crime.

[13]    …

[14]    Next, I take into account the submissions made by Ms Grimes in her written submissions about the children involved in the material which was located and related to Mr James. It involved children ranging from infants through to about fifteen years of age. The Federal Police estimated that there would be about 800 different children depicted. They were mostly girls aged between six and fourteen.

30. The construction of s 474.19(1)(a) for which the applicant contends is not mandated by the terms in which the provision is drafted. Counsel did not refer the Court to any authority to support the construction for which he contended. In my view, the objective seriousness of an offence committed in breach of the section, referable to conduct of the proscribed kind in a particular case, depends upon an infinite range of facts and circumstances, and not to any implied relative ordering of the conduct in the way the section is drafted.

31. We turn now to consider what emerged in the course of the initial hearing as to the applicant’s primary complaint under the first ground of appeal. In the way the argument was then developed, this elided with the submissions directed to the second and third grounds of appeal.

32. The applicant submitted that although his Honour adopted an “offence specific approach” imposing individual sentences for each of the fifteen transmission offences, he did so, exclusively referable to the number of child pornography files transmitted irrespective of whether they were images or multimedia files. By limiting his assessment in that way, so it was submitted, he failed to assess the objective gravity of each offence referable to a categorisation of the child pornography files against the COPINE scale, and in that way failed to take into account a factor relevant to an assessment of objective seriousness of the offending (as to which see factors 2 and 3 in Minehan at [24]).

33. It was then common ground that the evidence led on sentence, while in all other respects comprehensive, did not allow for his Honour to make any factual findings of that specific kind. Although the evidence allowed for a differentiation between the number of files containing single images and those containing images in a multimedia format, namely in a video or digital format (as reflected in the table at [18] above) the content of those files, categorised according to the COPINE scale, was not in evidence. The evidence did include a classification of all of the material seized according to the COPINE scale, and some examples, by description, of the sexual activity in each category, but that classification was referable to the total number of images and multimedia files in each of the five categories which included many hundreds of images of child pornography in the applicant’s possession that were not transmitted.

34. On sentencing neither the Crown nor counsel for the applicant, considered it necessary to refer his Honour to the trial evidence of the content of the images or multimedia files that were transmitted for the purpose of sentence, whether referable to their classification of the COPINE scale or otherwise. This may have been because at trial the applicant admitted that all the files the subject of the counts with which he was charged constituted child pornography, as defined. In any event, it also appears that on sentence both parties simply accepted that each of the five COPINE categories were represented in the 182 child pornography files transmitted which, together with other features of the offending, provided an adequate basis for his Honour to make a finding as to the objective seriousness of the overall offending and to proceed to sentence on that basis.

35. In his reasons for sentence his Honour expressly noted that the further refinement of the files according to COPINE categories relative to each count was not in evidence. He said:

[30]    I have information about how many images were transmitted in respect of each offence. However, I do not appear to have information about the range of categories over which those images are spread so far as each individual offence is concerned. I regard all of those offences – comprising counts 1 to 15 – as falling within the middle range for crimes of that kind. However, the sentences should vary because in some instances the number of images sent was quite low. They range from three images sent, so far as count 15 is concerned, to 123 images sent, so far as count 5 is concerned.

[31]    I propose to structure the sentences with some slight variation reflecting the number of images which was transmitted. I regard for all of the offences, except count 1, an appropriate range as being one of five to six years imprisonment.

36. The applicant submitted that without evidence identifying the content of the files transmitted, the only available finding was that the offending (whether constituted by the individual counts or the offending overall) was at the lower end of the range of objective seriousness and not offending in the mid range, and that the sentences imposed on each count were excessive for that reason.

37. The Crown submitted that the mere fact that the parties could have taken a different approach to the evidence in the sentencing hearing to better address the question of the objective seriousness of the offending (both of the individual counts and the counts relative to each other), and even if it might be said his Honour could have invited that approach to better inform his sentencing discretion (in particular to assist in setting a penalty range within which the graduated sentences for the transmission offences might be imposed), the approach adopted by his Honour has not been shown to be productive of error for that reason.

38. The Crown also submitted that the graduated sentences, referable to the gross number of child pornography files transmitted and other features of that offending to which his Honour referred, including the fact that the conduct was not isolated, allowed for a finding that each offence was within the mid range, and that the graduated sentences for counts 2 to 14 of between 5 years and 3 months and 6 years and 3 months, against a statutory maximum of 15 years, were commensurate with that finding.

39. While it was not for his Honour to require the Crown to tender evidence to enable him to differentiate between the transmission counts, not simply by the number of files transmitted but also their content, it is difficult to see how a finding of mid range offending for each of the transmission counts could be made without that evidence. It did not necessarily follow, however, that the individual sentences were infected with error for that reason, or that without that evidence a finding of low range offending was mandated. The question was whether the individual sentences are otherwise within range.

40. The applicant submitted that they each exceeded an available range for offending against the section, even against an increased statutory maximum. Counsel relied upon what were said to be comparative sentences from first instance judges in New South Wales and other States to exemplify that submission.

41. The Crown sought to distinguish the cases to which the applicant referred not only because, save for one case, the sentences incorporate a discount for a guilty plea, but also because fourteen of the fifteen transmission offences for which the applicant was sentenced were imposed against the increased maximum penalty of 15 years, while the offences dealt with in the other cases attracted lesser penalties. In addition, so far as the possession count under s 91H of the Crimes Act is concerned, the possession cases to which reference was made were similarly irrelevant for comparative purposes since the maximum in each case was 5 years and not 10 years under the Crimes Act.

42. These distinguishing features limit the utility of any of the cases to which the Court was referred for comparative purposes.

43. It emerged from the affidavits and submissions filed by the parties in 2014, however, that contrary to the basis on which his Honour had proceeded, evidence had been led at trial as to the nature of the images to which each of the transmission counts related.

44. Annexed to the 2014 affidavit of Mr Hammond, the applicant’s solicitor, were trial exhibits R and V. Annexures C and D to that affidavit were documents prepared by Mr Miller, counsel for the applicant, breaking down the contents of the images and videos contained in those Crown exhibits and their image names and Oliver scale categories (another categorisation scale for such images). This analysis was accepted by the Crown as being correct.

45. This evidence revealed that, contrary to the parties’ common position at the hearing of the appeal in 2013, there was evidence led during the trial, as to the categorisation of the child pornography the subject of each count, against the Oliver scale. That scale is:

Category 1 – erotic posing with no sexual activity

Category 2 – Solo masturbation or sexual activity between

Category 3 – no penetrative sexual activity between adults and children

Category 4 – penetrative sexual activity between adults and children

Category 5 – Sadism and bestiality

46. The categorisation of the images relevant to each of the transmission counts and the sentence which his Honour imposed for each of those offences was:

COUNT 1

Total Images	Category 1	Category 2	Category 3	Category 4	Category 5	Sentence
6	1	2	1	2	0	3 years and 8 months

COUNT 2

Total Images	Category 1	Category 2	Category 3	Category 4	Category 5	Sentence
14 Images	4	2	4	4	0	5 years and 9 months
5 Videos	1	2	0	2	0

COUNT 3

Total Images	Category 1	Category 2	Category 3	Category 4	Category 5	Sentence
33 Images	26	2	2	3	0	6 years
0 Videos	0	0	0	0	0

COUNT 4

Total Images	Category 1	Category 2	Category 3	Category 4	Category 5	Sentence
15 Images	8	1	2	4	0	5 years and 9 months
0 Videos	0	0	0	0	0

COUNT 5

Total Images	Category 1	Category 2	Category 3	Category 4	Category 5	Sentence
123 Images	48	5	21	47	1	6 years and 3 months
0 Videos	0	0	0	0	0

COUNT 6

Total Images	Category 1	Category 2	Category 3	Category 4	Category 5	Sentence
17 Images	1	3	3	10	0	5 years and 9 months
3 Videos	0	0	0	3	0

COUNT 7

Total Images	Category 1	Category 2	Category 3	Category 4	Category 5	Sentence
40 Images	18	2	4	16	0	6 years
0 Videos	0	0	0	0	0

COUNT 8

Total Images	Category 1	Category 2	Category 3	Category 4	Category 5	Sentence
17 Images	2	2	3	10	0	5 years and 9 months
6 Videos	0	0	0	5	1

COUNT 9

Total Images	Category 1	Category 2	Category 3	Category 4	Category 5	Sentence
17 Images	1	3	3	10	0	5 years and 9 months
3 Videos	0	0	0	3	0

COUNT 10

Total Images	Category 1	Category 2	Category 3	Category 4	Category 5	Sentence
13 Images	3	0	3	7	0	5 years and 9 months
0 Videos	0	0	0	0	0

COUNT 11

Total Images	Category 1	Category 2	Category 3	Category 4	Category 5	Sentence
0 Images	0	0	0	0	0	5 years and 6 months
5 Videos	1	1	0	3	0

COUNT 12

Total Images	Category 1	Category 2	Category 3	Category 4	Category 5	Sentence
5 Images	5	0	0	0	0	5 years and 6 months
0 Videos	0	0	0	0	0

COUNT 13

Total Images	Category 1	Category 2	Category 3	Category 4	Category 5	Sentence
12 Images	5	0	2	5	0	5 years and 9 months
0 Videos	0	0	0	0	0

COUNT 14

Total Images	Category 1	Category 2	Category 3	Category 4	Category 5	Sentence
0 Images	0	0	0	0	0	5 years and 6 months
2 Videos	0	0	0	2	0

COUNT 15

Total Images	Category 1	Category 2	Category 3	Category 4	Category 5	Sentence
0 Images	0	0	0	0	0	5 years and 6 months
3 Videos	0	0	0	3	0

47. In the further submissions filed for the applicant in 2014, it was submitted that this evidence established that his Honour had erred in concluding that each of his transmission offences fell within the mid range. He also argued that counts 1-4, 6-11 and 14 each fell below the mid range of seriousness of such offences; that count 5 fell slightly below or within the mid range; that counts 12 and 13 fell towards the bottom end of the range of seriousness of such offences; and that count 15 at the lower end of objective seriousness.

48. That was not conceded by the Crown, which submitted that this evidence established that his Honour’s finding that each of these offences fell within the mid range of such offending, was open. In the case of counts 14 and 15, committed towards the end of the applicant’s period of offending, it was submitted that while the number of images transmitted were small, they fell in category 4 (penetrative sexual activity between adults and children) and this also justified a finding of mid range offending.

49. The applicant accepted that a sentence of imprisonment had to be imposed upon him for his offending. He urged the conclusion, however, that neither counts 1 nor count 12 could be categorised as mid range offences, given the number and nature of the images to which those counts related. It was also argued that a sentence in relation to count 5 could incorporate the criminality involved in all of the transmission offences; so that all of the sentences for those offences could be made wholly or largely concurrent with the sentence imposed for count 5. It was conceded that there had to be some accumulation of sentences for the possession charge, but it was argued that that the images for which the applicant was being sentenced in relation to that count were also the subject of the transmission offences.

47. The applicant’s submissions in relation to counts 1 and 12 must be accepted. Count 1, which related to the transmission of 6 images falling into category 1, attracted a head sentence of 3 years and 8 months and count 12, which related to the transmission of 5 category 1 images, attracted a head sentence of 5 years and 6 months. Neither was a mid range offence and neither warranted the sentence imposed, notwithstanding that they were committed as part of a course of conduct, a matter which had to be taken into account in considering the nature and seriousness of each offence.

48. The errors in relation to these two counts, plainly arose from his Honour’s failure to refer to the trial exhibits which dealt with these matters. As we have already noted, he was not assisted by the parties in this regard.

49. Even when those errors are considered together with the Crown’s concession in relation to count 3, it does not necessarily follow that the applicant should be re-sentenced. Consideration must also be given to the total sentence imposed on the applicant as the result of his Honour’s approach to the principle of totality. That approach was very favourable to the applicant, there being an accumulation of only one month of the sentence imposed for each of the transmission offences, irrespective of the length of the individual sentences, or their seriousness.

50. In the result, an overall sentence and non-parole period was imposed which was not excessive, indeed it might even be described as lenient, given the overall criminality involved in the applicant’s offending and the maximum penalties provided for. In the result, despite the errors identified, this sentence should not be interfered with on appeal.

51. In applying the totality principle his Honour had to reduce the prima facie length of the head sentences in order to achieve an appropriate relativity between the totality of the applicant’s criminality and the totality of the sentences imposed (see Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 308.). The result of that exercise must not, however, give any suggestion that there had been some kind of discount for the applicant’s multiple offending (see R v Knight [2005] NSWCCA 253; 155 A Crim R 252 at [112] and R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at [18]).

52. In a complex sentencing exercise such as this, as discussed in Ranguihuna v R [2015] NSWCCA 48 at [50]-[52] by reference to the discussion in McCarthy v R [2011] NSWCCA 64 at [76]-[79], while the sentences for distinct offences must be taken into account as having played a part in the determination of the overall sentence, the structure of the sentences imposed and the resulting overall sentence, must be considered in light of the total criminality involved in the offending for which an offender is being sentenced.

53. Here, as well as the 3 counts in respect of which error has been established, the overall sentence encompasses 12 other offences correctly identified to fall into the mid range. Count 5 related to 123 images, 21 of which fell in category 3, 47 in category 4 and 1 in category 5. It was the most serious of the transmission offences. The conclusion that it was a mid range offence, was, on that evidence, favourable to the applicant. The conclusion that it was more serious, was open.

54. That evidence also establishes that the sentences imposed for the other transmission offences could not have been made concurrent with that imposed for count 5. Concurrent sentences may not be imposed simply because of the similarity of the conduct the subject of the separate counts, or because they are part of the one course of criminal conduct. Sentences should only be totally concurrent if the sentence for one offence, encompasses the criminality of all the offences (see R v Jarrold [2010] NSWCCA 69 per Howie J at [56], cited with approval in Franklin v R [2013] NSWCCA 122 at [44] and MPB v R [2013] NSWCCA 213 at [134]). Given the nature and seriousness of the other offences, an order for concurrency was not open to the sentencing judge.

55. To give but one example, count 8 attracted a head sentence of 5 years and 9 months. It involved 17 images and 6 videos, 10 and 5 of which, respectively, fell into category 4. The objective seriousness of that offending was incapable of being encompassed by the sentence for count 5, given the number and nature of the videos and images comprehended in these two different offences. No different conclusion is available in relation to the other counts, particularly given the course of conduct in which the applicant engaged in committing all offences.

56. His Honour’s approach to accumulation resulted in an overall sentence which, if it were to be reduced because of the errors identified, would result in an erroneously lenient sentence for the totality of the applicant’s serious offending.

57. In the result, it must be concluded that no lesser total sentence is warranted in law (see Kentwell v The Queen [2014] HCA 37; 313 ALR 451 at [43]).

Orders

61. Accordingly, we would order that leave to appeal be allowed, but the appeal be dismissed.

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Decision last updated: 15 May 2015