Kember v The Queen (No 4)
[2025] ACTCA 9
•28 February 2025
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Kember v The Queen (No 4) |
Citation: | [2025] ACTCA 9 |
Hearing Date: | 22 August 2024 |
Decision Date: | 28 February 2025 |
Before: | Baker and McWilliam JJ, Ainslie-Wallace AJ |
Decision: | (1) The appeal is dismissed. |
Catchwords: | APPEAL – CRIMINAL LAW – Application to withdraw plea of guilty after conviction – whether insufficient evidence to prove appellant’s guilt beyond reasonable doubt – plea of guilty encompasses acceptance of proof of each necessary element to a charge – sufficient evidence to support plea of guilty – whether denying leave would amount to miscarriage of justice – whether primary judge’s decision attended by error of fact or law – consideration of elements of each charge – error not established – no miscarriage of justice – application for leave to withdraw guilty pleas dismissed |
| APPEAL – CRIMINAL LAW – Appeal against sentence – child pornography offences – whether sentence was manifestly excessive – whether primary judge erred in failing to consider alternatives to custodial sentence – whether offender’s lack of prior convictions and the low objective seriousness of offending warranted reduced sentence – whether primary judge failed to consider extra curial punishment – where primary judge characterised offences as falling within mid to low range of objective seriousness – such a characterisation does not diminish the significant criminality of the offending – full-time custody warranted to reflect the seriousness of offending – no error in primary judge’s balance of factors favourable to appellant against the importance of deterrence and denunciation – appeal dismissed | |
Legislation Cited: | Criminal Code Act1995 (Cth) ss 473.1, 474.19, 474.22, 474.22A, 474.26, 474.27, 474.27A |
Cases Cited: | Director of Public Prosecutions v Ka-Hung Ip [2005] ACTCA 24 |
Parties: | Rhys Karl Kember ( Appellant) Commonwealth Director of Public Prosecutions ( Respondent) |
Representation: | Counsel Self-represented ( Appellant) K Breckweg with M Keks ( Respondent) |
| Solicitors Self-represented ( Appellant) Commonwealth Director of Public Prosecutions ( Respondent) | |
File Number: | ACTCA 38 of 2022 |
Decision Under Appeal: | Court/Tribunal: Supreme Court Before: McCallum CJ Date of Decision: 27 June 2022 Case Title: R v Kember Citation: [2022] ACTSC 153 Court File Number: SCC 90 of 2021 |
THE COURT
Overview
1․On 27 June 2022, Rhys Karl Kember (the appellant) was sentenced by McCallum CJ (the primary judge) on his pleas of guilty to six offences which can be described as child pornography offences, pursuant to the Commonwealth Criminal Code Act 1995 (Cth) (Criminal Code): R v Kember [2022] ACTSC 153 (Primary Judgment).
2․Those charges were:
| Count | Date of offence | Description | Maximum penalty | Sentence imposed |
| 1 | Between 7 June 2016 and 30 November 2017 | Use a carriage service to solicit child pornography material contrary to s 474.19(1) of the Criminal Code | 15 years imprisonment | 16 months imprisonment |
| 2 | Between 1 November 2017 and 31 August 2018 | Use a carriage service to solicit child pornography material contrary to s 474.19(1) of the Criminal Code | 15 years imprisonment | 10 months imprisonment |
| 3 | 9 December 2019 | Use a carriage service to procure a child to engage in sexual activity with the appellant contrary to s 474.26(1) of the Criminal Code | 15 years imprisonment | 8 months imprisonment |
| 4 | Between 1 January 2020 and 31 January 2020 | Use a carriage service to solicit child abuse material contrary to s 474.22(1) of the Criminal Code | 15 years imprisonment | 6 months imprisonment |
| 5 | Between 27 March 2020 and 27 April 2020 | Use a carriage service to transmit indecent material to a person under the age of 16 years contrary to s 474.27A(1) of the Criminal Code | 7 years imprisonment | 3 months |
| 6 | On or about 8 May 2020 | Possess child abuse material obtained using a carriage service contrary to s 474.22A(1) of the Criminal Code | 15 years imprisonment | 6 months |
3․The primary judge imposed an effective total sentence of 3 years’ imprisonment commencing 25 June 2022 to expire on 24 June 2025. Her Honour directed that after serving 8 months of his sentence, on 24 February 2023, the appellant be released on a recognisance release order on giving security in the sum of $2,000, after which the appellant would be subject to a good behaviour order for a term of 2 years.
4․The Grounds of Appeal challenge both the conviction and the sentence imposed. The conviction challenge asserts that the appellant should have leave to withdraw his pleas of guilty and consequently that the convictions be set aside.
5․In the alternative, the appellant challenges the sentences imposed, alleging that they were manifestly excessive.
6․For the reasons that follow, the application for leave to withdraw the pleas of guilty and the sentence appeal are dismissed.
Background
The charges
7․In order to give context to our consideration of the Grounds of Appeal, it is useful to briefly set out the facts relating to the charges in the indictment taken from the primary judge’s sentencing remarks and other non-contentious material. The particular facts relating to each charge will be considered later in these reasons.
8․The appellant, who was born in March 1988, made contact through various social media messaging platforms with young girls whom he had met through his work at a trampoline park, through his membership of a cheerleading club, and in the case of two of the victims, they were the younger sisters of women with whom the appellant was in a relationship. In the case of two of the victims, the appellant importuned each to take nude images of themselves and send them to him. In relation to another two victims, in the course of communications with the appellant they asked him to buy alcohol for them, which he agreed to do on condition that they send him nude pictures of themselves and in relation to one of those victims, the appellant imposed a second condition which was that she give him oral sex (which did not occur), however the appellant delivered the alcohol to the victim at her school. None of the victims was older than 16.
The appellant’s plea
9․On 12 November 2020 the appellant entered pleas of not guilty to an indictment presented in the ACT Magistrates Court. The matter was committed to the ACT Supreme Court for trial, for hearing on 15 March 2022. The appellant’s pleas of guilty were entered on 15 March 2022, the day fixed for the trial. At the time of entering the pleas of guilty, the appellant was represented by counsel and a solicitor. There had been negotiations between the appellant’s lawyers and the Crown which resulted in the number and seriousness of the counts alleged against him being reduced.
10․An extensive and detailed statement of agreed facts was before the primary judge. The details of the offences and the dates on which they occurred and to which the appellant pleaded guilty were fully set out.
11․The sentence was heard on 24 June 2022. On 27 June 2022, the appellant was convicted on his pleas of guilty and sentenced.
The appeal
12․On 25 July 2022, the appellant appealed against the sentences on the basis that they were manifestly excessive. On 1 December 2022, the appellant sought leave to challenge his conviction. The question of leave and if leave is granted, whether the convictions should be set aside were considered during the hearing of the appeal.
13․On 29 July 2024, the appellant filed a document entitled “Grounds of Appeal against sentence/conviction”. While couched in terms of “grounds”, the matters to which the document refers are in fact the reasons why the appellant submits the Court would grant leave to withdraw his pleas of guilty. However, for ease of reference, we will refer to the various matters as “Grounds”.
14․That document relevantly provided as follows:
GROUNDS OF APPEAL AGAINST SENTENCE/CONVICTION
Contents
1. Introduction
2. Background of the Case
3. Grounds for Retracting the Plea of Guilt 3.1. Duress and Lack of Voluntariness 3.2. Pressure from Counsel 3.3. Statement of Remorse and Responsibility
4. Fresh Evidence 4.1. New Evidence Details 4.2. Relevance and Impact 4.3. Specific New Evidence
5. Ineffective Assistance of Counsel 5.1. Failure to Follow Directions 5.2. Lack of Investigation
6. Failure to Consider Alternative Sentencing 6.1. Judge's Oversight 6.2. Sentencing Principles 6.3. Crimes (Sentencing) Act 2005, Section 82(1)(a) 6.4. Crimes Act 1914, Section 16F(2)
7. Error in Law Related to Charges Under the Criminal Code Act 1995 7.1. Section 474.19(1)(B) 7.2. Section 474.26(1)(B)
8. Extra-Curial Punishment 8.1. Nature of Extra-Curial Punishment 8.2. Impact on Sentencing 8.3. Additional Considerations
9. Miscarriage of Justice 9.1. Unreasonable Conviction 9.2. Insufficient Evidence
10. Additional Considerations 10.1. No Previous Record 10.2. Low Range of Charges
11.Conclusion and Relief Sought Annexures
The conviction appeal
Duress and ineffective assistance of counsel
15․As can be seen from the above, in Grounds 3.1, 3.2 and 5, the appellant made various complaints about his legal representation at first instance. Those grounds were ultimately withdrawn during the course of the hearing of the appeal. What occurred is recorded for transparency and completeness.
16․In Ground 3.1, the appellant contended that the pleas of guilty were entered under duress and were not as a result of a voluntary decision by the appellant. The appellant said that he felt pressured to take the plea deal despite expressing a desire to go to trial. He said that notwithstanding his long expressed desire to have the charges determined by a jury, he felt pressured by his lawyer to plead guilty to the charges. He also claimed that he was “not of sound mind” due to “mental health issues”. He said he was not aware of the full consequences and impact of the decision to plead guilty.
17․In Ground 3.2, the appellant asserted that his counsel had pressured him to plead guilty, notwithstanding the appellant’s insistence and instructions to pursue a defence.
18․In Ground 5, a separate but related Ground, the appellant claims that his counsel failed to follow his instructions to seek a defence but pressured him to take the plea deal. He also claims that his counsel failed to properly investigate the fresh evidence or present a viable defence strategy constituting ineffective assistance.
19․At the commencement of the appeal hearing, the Crown observed that the appellant had produced an affidavit supporting his claims in relation to duress and the ineffectiveness of his lawyers and in which he set out his conversations with his lawyer. The Crown indicated that she wished to cross examine the appellant on the affidavit. Concerns were expressed by the Court as to whether the appellant understood the concept of legal professional privilege, its waiver, and what waiver might mean for him.
20․At the Court’s request, Ms Katrina Musgrove, a barrister, was contacted by the ACT Bar Association to offer the appellant pro bono advice on this issue. Ms Musgrove made herself available at very short notice and gave advice to the appellant. The Court must express its gratitude for her assistance in this matter which was, in our opinion, in the finest traditions of the bar.
21․Having discussed the issue of privilege with Ms Musgrove, the appellant withdrew reliance on paragraphs 3.1, 3.2 and 5 of the Grounds for leave to withdraw the pleas.
Remaining challenges to conviction
22․The remainder of the Grounds of Appeal concerning the appellant’s conviction were Grounds 4, 7 and 9.
23․Ground 4 contends that the appellant could not properly have been convicted of Count 1 on the indictment because he had evidence that shows that he could not have communicated with the victim in the period alleged in Count 1, and thus his plea of guilty to that charge gave rise to a miscarriage of justice.
24․Ground 7 contends that errors of law relating to the section of the Criminal Code under which Counts 1 and 2 were brought; that the intentional element of Count 3 was not established by the facts, and in relation to Count 1, the appellant believed the victim to be over 16 year of age and thus he could not be convicted on his plea.
25․Ground 9 contends that the evidence before the primary judge was insufficient to prove the appellant’s guilt beyond reasonable doubt and that the conviction was unreasonable.
26․Grounds 4 and 7 are each addressed below, as they raise contentions that a miscarriage of justice had arisen, such that the appellant should be given leave to withdraw his plea of guilty.
27․In respect of Ground 9, the appellant pleaded guilty to the Counts on the indictment based on the agreed statement of facts tendered to the primary judge. That plea encompasses, amongst other things, an acceptance of proof of each necessary element to the charges: see Meissner v The Queen (1995) 184 CLR 132 (Meissner) at 157 and see also Sagivv R (1986) 22 A Crim R 73 (Sagiv) at 80-81.
28․In those circumstances, there can be no argument that there was insufficient evidence to support the conviction. Ground 9 must be dismissed. The appellant’s convictions must stand unless he is granted leave to withdraw his pleas of guilty.
29․It is to this question that we now turn.
Should the appellant have leave to withdraw his pleas of guilty?
Relevant principles
30․The relevant principles to be applied in the determination of this issue are set out in R v Gomez [2007] ACTCA 21; 1 ACTLR 145 (Gomez) where at [38] the Court said, “the single test applicable to all cases is whether there would be a miscarriage of justice if the plea were not permitted to be withdrawn …”. The Court referred to Meissner at 157, where Dawson J said:
It is true that a person may plead guilty upon grounds which extend beyond that person’s belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud.
(Citations omitted.)
31․The Court in Gomez at [39] continued and said apropos a plea of guilty that it, in this context, means “a voluntary and otherwise tolerable acceptance of guilt” (emphasis omitted).
32․In White v R [2022] NSWCCA 241; 110 NSWLR 163 (White), the New South Wales Court of Criminal Appeal undertook a wide-ranging consideration of the authorities on the question of withdrawal of pleas of guilty and concluded that a different test is to be applied when an application to withdraw a plea of guilty is made before conviction and when that application is made following conviction. As in Gomez, the Court in White concluded at [58] that where a plea is sought to be withdrawn following conviction, the test to be applied is whether there has been or would be a miscarriage of justice were the plea not to be withdrawn.
Ground 7 – errors of law and fact
33․This ground has been considered first as it concerns Counts 1, 2 and 3. In respect of Counts 1 and 2, each are an offence of using a carriage service to solicit child pornography material, contrary to 474.19(1) of the Criminal Code over the periods set out at [2] above.
34․The appellant argued error of law, in that the material he solicited from the victims in Counts 1 and 2 did not meet the definition of “child pornography”. As a result, he could not legally be convicted of those charges. He made no submission as to the definition of child pornography or how or in what way the material he solicited did not meet the definition of “child pornography”.
35․The Crown submitted, and we accept, that child pornography is extensively defined in s 473.1 of the Criminal Code and includes the consideration that it is material that “reasonable persons would regard as being, in all of the circumstances, offensive.”
36․The statement of facts tendered on sentence sets out in detail the conversations between the appellant and the victims in Counts 1 and 2 and the material he wished them to send him. There was no argument before the primary judge that the material sought did not meet the description of child pornography and the primary judge proceeded to sentence on the basis that the material sought met the description of child pornography material.
37․Next, the appellant argued that since there was an amendment to s 474.22 after he pleaded guilty, the elements of the offence changed and the plea was not capable of supporting a conviction because it did not address all of the elements of the charge.
38․As we have said, the appellant was charged with an offence under s 474.19 of the Criminal Code. In September 2019, s 474.19(1) was repealed and replaced with s 474.22 which is in identical terms to s 474.19(1) save for the substitution of the words “child abuse material” for the words “child pornography material”. It is in respect to the change of terminology that the appellant argues an error of law. He contends that the wording of the amended section does not accord with the wording of the charges contained in Counts 1 and 2 on the indictment.
39․The wording of the charges contained in Counts 1 and 2 in the indictment alleges that the appellant solicited “child pornography material” because those were the terms of s 474.19(1) then in force at the time of the offending. They correctly identify the elements of the charge at the time of the offending. It was to those charges that the appellant entered his pleas. It is not relevant that, at a later time, the wording of the section changed.
40․In respect of Count 3, the charge was brought pursuant to s 474.26(1) of the Criminal Code, which is use a carriage service with the intention of procuring the recipient to engage in sexual activity with the sender. The appellant argued this had not been established on the facts before the Court. The appellant argued that the evidence produced by the Crown was inadequate to support the charge because the primary judge found that the appellant did not attempt to have sexual activity with the complainant.
41․Again, it is important to be clear about the timing of the offence. The charge represented in Count 3 refers to the intention of the appellant at the time of using the carriage service. The charge concerns a communication recording the appellant asking the victim for oral sex in exchange for him bringing her alcohol, a fact noted by the primary judge. That no sexual activity was later attempted is irrelevant to the charge, which was established by the agreed facts.
42․Finally, the appellant argued that as he believed the victim in Count 3 was over 16, he was not properly convicted of that Count. The appellant first argued that there was no evidence before the Court on sentence that the victim was under 16. However, the statement of agreed facts on which the appellant was sentenced set out the ages of each of the victims at the time of the offences. In relation to the victim of Count 3, it said she was 15 at the time. Further, that fact was relied upon by the appellant’s counsel during the sentencing submissions, who argued that the objective gravity of the offence in Count 3 should be lessened because the victim was 15 and the legal age in relation to this offence was 16. As outlined above, the appellant’s plea encompassed an acceptance of proof of each necessary element to the charges: see Meissner at 157 and see also Sagiv at 80-81. This contention must therefore be rejected.
43․The further submission, made for the first time on the appeal, was that the appellant thought the victim in Count 3 was over 16. There is no evidence to support that belief, but even if that were the case, there are two separate answers which defeat the appellant’s argument. The first is that, as pointed out by Mossop J in Kember v The Queen (No 3) [2022] ACTCA 73 at [23], an offence under s 474.26 of the Criminal Code is committed in two alternative ways – if the recipient of the communication is under 16 years of age, or is believed by the person sending the communication to be under 16 years of age. In this case, Count 3 was established on the objective fact of the victim’s age, not the subjective belief of the offender. The second answer is that the existence of a possible available contention that would contradict an element of an offence does not of itself suffice to demonstrate any miscarriage of justice arising from the acceptance of a guilty plea.
44․Accordingly, none of the errors asserted in relation to Counts 1, 2 and 3 are established.
Ground 4 – Error of fact in relation to the charge in Count 1
45․By this Ground, the appellant contends that in relation to Count 1, evidence obtained by him since he was sentenced demonstrates that he could not have communicated with the victim at the time specified in the charge and therefore his plea of guilty to that charge cannot stand and amounts to a miscarriage of justice.
46․The evidence on which the appellant relies to make out this Ground consists of four single documents said to be screen shots of his social media accounts and which he said showed that he could not have communicated with the victim in Count 1, referred to as “DF”, on the dates alleged in the indictment. These documents were provisionally admitted during the appeal hearing.
47․The appellant referred to these documents as “fresh evidence” and relied on the well-established authorities to have them admitted into evidence. However, we are not convinced that the authorities concerning whether or not fresh evidence is to be admitted are relevant to an application for leave to withdraw pleas of guilty. It is not necessary for these purposes to consider that issue further, however we must consider the documents to see whether they make good the appellant’s claims.
48․The four documents purport to show Instagram activity between the appellant and DF. MFI 1 bears two references to two different usernames associated with DF under the heading “Blocked Accounts”. The dates against the accounts are 4 March 2020 and 26 May 2018. The appellant relied on this document as proof that in relation to two of DF’s Instagram accounts, one was blocked on 26 May 2018 and the other on 4 March 2020 and he said that DF did not have a phone available to her when the offences took place.
49․MFI 2 shows a username for DF under “Blocked users” dated 2 January 2015. The appellant contended that the document showed that having blocked DF in January 2015 from communication with him, there could be no transmissions between him and DF from that date until the present time, and so he could not have committed the offences.
50․MFI 3 is a page with a heading “Pending Requests” and underneath is a username of DF, but no date of creation of the “request” is on the document. The appellant relied on this document to support his contention that because DF had requested communication with him, no communication could take place without his replying to the request.
51․Finally, MFI 4 which was produced at the hearing of the appeal is headed “Instagram” and shows conversations between the appellant and a username of DF commencing on 15 January 2020.
52․Significant difficulties attend the court placing any reliance on these documents. First, they bear no indication of their provenance other than on documents MFI 1 and MFI 4, which bear the words “Instagram”. Secondly, in her recorded interview with police (MFI 6 in the appeal hearing), DF said that when she first started to chat with the appellant it was through Snapchat and later on through Instagram. She said that she used a number of different usernames on Instagram and mentioned at least four. She said she also contacted him using Facebook Messenger.
53․Thirdly, none of the dates on which the appellant allegedly “blocked” DF from communicating with him reflects the dates of offending in the indictment being between about 7 June 2016 and 30 November 2017.
54․Finally, and in our view, fatally to the appellant’s argument, is the agreed fact that 43 nude photographs of DF were found on the appellant’s phone corresponding with DF’s account of sending him nude photographs of herself at his request.
55․As counsel for the Crown also pointed out, these documents also contradict the appellant’s submission that he had no conversations with the victim until 2020.
56․For those reasons, the material contained in the four separate sheets marked MFI 1 to 4 do not establish the asserted errors of fact.
Conclusion on conviction appeal
57․The appellant has not demonstrated that a miscarriage of justice has arisen from the acceptance of his guilty pleas. It follows that his appeal against his conviction must be dismissed.
Appeal against sentence
The sentence decision
58․In order to consider the argument of the appellant that the sentences imposed were manifestly excessive (individually and cumulatively), it is helpful to briefly set out the circumstance of each offence.
Count 1 – using a carriage service to solicit child pornography material
59․The victim in relation to this charge was aged about 13 when she first met the appellant. She was the younger sister of a young woman, herself about 21 or 22, with whom the appellant was having a sexual relationship. The appellant and the victim communicated via Snapchat. At some stage during those conversations, the appellant asked the victim to send him nude pictures of herself. Although initially reluctant, the victim began sending the appellant photos of herself. The primary judge said at [7] that the appellant encouraged the victim to do so in a way the primary judge described as “manipulative”. Her Honour noted the appellant saying to the victim that if she cared for him, she would send him the intimate photographs.
60․There was an hiatus in the relationship which resumed in early 2019, again via Snapchat when the victim was aged 15. She added the appellant to her contacts and they began to communicate again. The victim sent the appellant pictures of herself, sometimes at his request, sometimes unprompted.
61․Her Honour found the objective seriousness was below the mid-range of offences of the type. In coming to that view, her Honour took into account the age difference between the victim and the appellant and the length of time over which the offending took place, some 17 months, and because the victim created the images at the appellant’s request.
62․The appellant was sentenced to 16 months imprisonment to commence on 25 June 2022.
Count 2 – using a carriage service to solicit child pornography material
63․In relation to this offence, the victim was aged between 14 and 15 years old at the date of offending. She met the appellant through being on the same cheerleading team. The appellant and the victim communicated through Snapchat and formed a friendship. From time to time the victim would confide in the appellant about mental health difficulties she was experiencing. Early in 2018, on one occasion the appellant encouraged the victim to send him an explicit photograph of herself. The victim “laughed off” this request and refused. Later when the victim was about 16 years old, the appellant again asked her to send him nude photographs of herself. The victim was reluctant but eventually sent the appellant a photograph of herself with her breasts exposed.
64․The primary judge considered this offence to fall below the mid range of offences of this type. However, her Honour noted at [20] that the victim impact statement prepared by the victim referred to her confiding in the appellant her mental health difficulties and as a result of his offending, she has not only lost trust in the appellant but in the therapy and support she needed to deal with her mental health. Her Honour had regard to the effect of the appellant’s actions on the victim.
65․The appellant was sentenced to 10 months imprisonment to commence on 25 June 2023 being partially accumulated on the sentence for Count 1.
Count 3 – use a carriage service to transmit a communication with intent to procure engagement in sexual activity
66․The victim of this offence was 15 years old, and she and the appellant exchanged conversations through Instagram. The victim instigated the conversations when she asked whether the appellant could supply her with alcohol. He said that he would in exchange for photographs. Although the victim sent photographs, the appellant was dissatisfied with them and, after asking the victim what type of alcohol she wanted, said: “[w]ell you’ve got an hour to send me at least something decent then, you can send better ones.”
67․The primary judge noted at [31] that the conversation continued and culminated in the victim agreeing to give the appellant oral sex in exchange for alcohol. While the appellant purchased the alcohol and delivered it to the victim at school, there was no suggestion before the primary judge that the agreed sexual activity took place.
68․Her Honour found that this offending fell at the lower end of the range of objective seriousness.
69․On this Count the appellant was sentenced to 8 months imprisonment partially accumulated on the sentence for Count 2.
Count 4 – use a carriage service to solicit child abuse material
70․Here the appellant encouraged a teenage girl to send him explicit nude photographs of herself. The victim was the younger sister of a person with whom the appellant was then in an intimate relationship.
71․During the relationship between the appellant and the victim’s sister, the appellant and the victim became close, and they would spend time together in the absence of the victim’s sister. The facts before her Honour recorded that from time to time the appellant would deliver KFC to the victim at her school in exchange for a “daily photo” or “daily snap” on Snapchat.
72․When the victim was 15 years old, she asked the appellant to purchase alcohol for her and he said he would if she sent him photographs of herself. She refused. The appellant downloaded photographs of the victim in her swimming costume she had posted on Instagram and messaged the victim saying: “You post photos like this, but you won’t even send photos to someone who has been in your life for ages”. Eventually the victim blocked the appellant from her social media.
73․The primary judge found this offence to fall at the lower end of objective seriousness.
74․The appellant was sentenced to 6 months imprisonment to commence on 25 June 2024 being partially accumulated on the sentence for Count 3.
Count 5 – use carriage service to transmit indecent material to a person under 16 years
75․In this case, the appellant knew the victim as she was the younger sister of one of the other victims through the cheerleading association. At this time the appellant was 32 years old. He communicated with the victim over a period of one month in which he asked the victim about her prior sexual experiences and told her that he and her sister had exchanged nude photos. In a conversation about the victim’s sexual experience, the appellant asked her whether she sent “nudes” and she replied that she did not and was “not like that”.
76․The primary judge accepted that in this Count the appellant persisted in questioning the victim about her sexual experience when she had told him she did not want to have the discussion, however concluded that the offending fell at the lower end of the range of objective seriousness because the offending occurred twice and the indecency related to conversation.
77․The appellant was sentenced to 3 months imprisonment to commence on 25 December 2024 being partially accumulated on the sentence for Count 4
Count 6 – possess child abuse material
78․When police executed a search warrant of the appellant’s home, the material to which this charge relates was discovered on the appellant’s iPhone on an application which required passcode access.
79․The nature of the material was ascribed a category. The primary judge recorded at [44] that most of the material in the appellant’s possession was of Category 1 being “[i]mages of children which are likely to cause offence to a reasonable adult, but where there is no sexual activity taking place. There is no specific requirement for nudity or for a particular focus on, or attention to, the genitals. However, the image must be sexually suggestive or sexual in nature”.
80․Her Honour saw a sample of the material seized and said at [45] that “[m]ost of the photos were nude photos of the kind one might expect to see in pornographic literature which is restricted to persons over 18”.
81․There was one image that fell within Category 2 which is defined as “[s]exual acts between children only, with no part of the body being penetrated, and the solo masturbation by a child”. Her Honour at [47] said that the photo in question was of one girl with her hand down her underpants.
82․In assessing the objective seriousness of this offence, the primary judge accepted that the offence fell at the lower end of the range of objective seriousness. Her Honour indicated that she came to that conclusion because probably the victims depicted were between 15 and 18, although the dates suggest that one victim was 15. Her Honour indicated that one victim could have been between 13 and 16 but the date stamp on the photo made the determination of her age difficult.
83․The appellant was sentenced to 6 months imprisonment to commence on 25 December 2024 and to be served wholly concurrently with the sentence imposed for Count 5.
Subjective circumstances
84․A psychological report was before the primary judge in which, amongst other things, the author considered the appellant’s risk of recidivism, which he assessed as being low to moderate. The author of the report also said that his risk will reduce because the offending was related in part to the appellant’s social milieu with which he was connected at the time of his offending while pursuing a sporting career which, the psychologist described, as being overly sexualised. The primary judge said that while this context does not excuse the offending, it served to explain the circumstances of it.
85․The primary judge concluded that the appellant’s childhood emotional deprivation had “some” causal connection with the offending. She further accepted that because of his background he is more vulnerable to offending of the present kind. She found he had good prospects of rehabilitation provided he remains connected with his pro-social supports.
86․The primary judge took into account that at the time of sentence, the appellant’s father was suffering from Alzheimer’s disease which was progressing and that there was a significant prospect that on the appellant’s release from prison, his father may not recognise him.
The sentence
87․The primary judge noted that it was accepted that a custodial sentence of some kind was warranted. As to specific deterrence she observed that the effect of being charged has had a salutary effect on the appellant even though he had minimised the severity of his offences.
88․In considering the nature of the offending the primary judge found the offences were individually culpable and distinct in time. Her Honour noted that to make the sentences wholly cumulative would result in a crushing sentence.
89․Her Honour, as she was entitled, took into account the implicit harm that flows from offences of this kind and the concomitant need to protect children from making immature decisions.
90․The appellant’s plea was entered on the day of the hearing and the primary judge accepted that it obviated the need for the victims to give evidence, which she said was “better than no plea at all”. Her Honour indicated that the discount to be afforded to the appellant on sentence was reflected between 10 to 15 percent.
91․The primary judge determined to impose a custodial sentence but to release the appellant on a recognisance release order after a period of imprisonment of 8 months to give effect to the prospects of rehabilitation and to take into account hardship to the appellant’s father.
Sentence Appeal Grounds
92․Although the ground of appeal asserts that the sentences were manifestly excessive, the appellant’s written document identifies several matters which we will consider as part of the overall challenge to the sentence. The appellant contends that the primary judge erred in that she did not consider or properly take into account:
(a)the availability of alternative sentencing options other than full time custody;
(b)his lack of criminal convictions;
(c)the low range of objective seriousness of the offending; and
(d)extra curial punishment.
93․It is well accepted that where, as here, the ground of appeal asserts that a sentence or sentences imposed are “manifestly excessive”, appellate intervention will only occur where the Court is satisfied that there has been an error of the kind referred to in House v The King (1936) 55 CLR 499; R v Duffy [2014] ACTCA 53 at [53]. That is, the appellant must demonstrate that there is a specific error of fact or law, or that the sentence is such that it may be inferred that there was some misapplication of principle in the sentencing of the appellant, even though when and how is not apparent from the sentencing judge’s reasons.
94․Appellate intervention is not justified simply because an appellate court may have a different view as to the most appropriate sentence (Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [28]) or where the sentence is markedly different from sentences that have been imposed in other cases (Wong v The Queen [2001] HCA 64; 207 CLR 584 at [58]; Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [58]).
95․The appellant must establish that the sentence imposed falls “wholly outside the available sentencing range” and the appeal will only succeed if the appellate court considers that the sentence is “unreasonable or plainly unjust”: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [6] and [22].
96․It is against this legal principle that we turn to consider the appellant’s arguments.
The availability of alternate sentencing options to full time custody
97․The appellant contended that the primary judge erred in not considering community service, rehabilitation programs or suspended sentences rather than full time custody. Further, he argued that her Honour failed to explain why no sentence other than full time custody was appropriate. In short, the appellant contended that the sentence of imprisonment was disproportionate to the objective seriousness of the offences.
98․In her reasons for sentence, the primary judge reflected on the objective seriousness of the individual offences and she found them to be within the mid-to-low range of offences of this type. However, that is not to say that they were not attended by significant seriousness. For example, the appellant used social media to prey on the younger siblings of women with whom he was in a relationship, on occasions agreeing to provide the victims with alcohol in return for them providing him with nude photographs. On one occasion he delivered the alcohol to the school that the victim was attending. The appellant was at all material times many years their senior. At the sentence hearing, the appellant’s counsel conceded that nothing short of a custodial sentence was appropriate to reflect the objective gravity of the offending and her Honour agreed with that concession: Primary Judgment at [86]. However, it is not the case that there was any failure to explain that finding. It is apparent from her Honour’s reasoning at [84] that deterrence and denunciation were the principal factors to which her Honour gave effect.
99․The primary judge then dealt with the manner of the sentence. In that regard, the reasons must be understood in the context of the submissions that were made to the Court. The submission was that “a recognisance release order would be appropriate after the offender has served a salutary brief period in prison”: Primary Judgment at [87].
100․Given that was the focus of the case presented, there was no error in the primary judge not referring to a fully-suspended sentence, with or without community service, as available sentencing options. It has been repeatedly stated by appellate courts that a sentencing judge does not need to rehearse every conceivable consideration on sentence, and indeed, such a practice should be avoided: R v UG [2020] ACTCA 8 at [63]-[64]; Fares v DPP (No 2) [2025] ACTCA 2 at [58]. As stated in Higgins v The Queen [2022] ACTCA 26 at [24], sentencing remarks need not be elaborate and it is unnecessary to structure them as a checklist “to avoid the prospect of an ‘armchair appeal’ at a later stage seizing upon any missing reference as evidence of error”.
101․Accordingly, the sentencing judge was not required to raise those alternatives only to discard them as patently not reflective of the seriousness of the offending. That such alternatives were not appropriate was a point manifestly understood by the appellant’s counsel at first instance, by the submissions that were put and with which her Honour engaged at [87]-[92].
Lack of criminal record
102․The same reasoning applies to the lack of a reference to the appellant’s prior criminal record. The relevance of the lack of a prior criminal history is really directed to whether the offender is a person of prior good character and as such entitled to leniency: Veen v The Queen (No 2) (1988) 164 CLR 465 at 477-8. The primary judge accepted that the conduct to which the offender pleaded guilty was out of character for him: Primary Judgment at [64]. As that finding encapsulates consideration of the offender’s criminal history, there was no requirement for the primary judge to expressly refer to every item of evidence supporting the finding.
Low range of objective seriousness
103․The primary judge’s reasons at [5]-[49] reflect a detailed assessment of the objective seriousness of the individual charges as reflected against other offences of a similar nature. Merely characterising them as falling within the mid to low range does not mean that of themselves the offences were not grave and did not involve significant criminality.
Extra curial punishment
104․The appellant contended that as a result of his conviction he has been subject to public vilification and personal harm (this was not elaborated on in either the written or oral submissions). The appellant also stressed that, as a result of his criminal conviction, he is unable to travel to many countries.
105․The evidence before the court did not establish any particular “public opprobrium” visited upon the appellant such as to constitute extra curial punishment of the kind described in Scott v R [2020] NSWCCA 81 at [133] and the cases there-cited. To the extent that the appellant may now be unable to travel to other countries, that does not constitute punishment that goes beyond that of the imposition of sentence. It is more properly understood as the ordinary consequence of being convicted of a crime: Melville v The King [2023] NSWCCA 284 at [85].
106․The same reasoning applies to the appellant’s reliance upon the consequences of the sentence for his partner, in terms of visa complications and mental distress experienced by her. This included the appellant being unable to travel with her to Russia to see her family and her anxiety that she may not be able to obtain a visa to remain in Australia because of the appellant’s convictions. This matter was not directly raised with the primary judge on the appellant’s plea. A passing reference was made in the medical evidence referring to the partner’s medical condition and the letter from the doctor itself was referred to by the primary judge as part of the materials her Honour had considered on sentence: Primary Judgment at [63]. Again, neither the submissions nor the evidence, such as it was, establish that this matter fell outside the ordinary consequence of a criminal conviction, such as to constitute extra-curial punishment.
Hardship to third parties
107․One of the mandatory considerations of the Crimes Act 1914 (Cth) is the probable effect of any sentence on an offender’s family or dependants: s 16A(2)(p), discussed in Director of Public Prosecutions v Ka-Hung Ip [2005] ACTCA 24 (Ip) at [60].
108․At the sentencing hearing, the appellant produced evidence of his father’s Alzheimer’s disease and its predicted deterioration. The appellant said that during his incarceration, the progress of his father’s Alzheimer’s disease has advanced to the point where he does not recognise the appellant. That is no doubt a personal tragedy for the appellant.
109․The primary judge made specific reference to the circumstances of the appellant’s father and noted that during the appellant’s incarceration his father’s condition may well deteriorate, as it appears to have done: Primary Judgment at [83]. However her Honour continued that the importance of this matter cannot be overplayed because deterrence and denunciation of the appellant’s conduct must be the principal factors in the sentencing exercise: Primary Judgment at [84]. As has been emphasised at appellate level in a number of jurisdictions considering federal offences of this type, general deterrence is the primary sentencing consideration for offending involving the online sexual exploitation of children, given the vulnerability of children online and the need to protect children both from the potential for sexual abuse and from the harm caused by insidious or graphic sexualised communications directed at children: see, for example, R v Gajjar (2008) 192 A Crim R 76 at [27], [56]-[57]; Gifford v R [2016] NSWCCA 302 at 384 and the authority there-cited.
110․The relevant consideration having been manifestly considered, the question of weight to be given to hardship was a discretionary one for the primary judge (Ip at [61]). On the principled application of the discretion, it was clearly open to her Honour to give weight to the sentencing objectives she did and as such, the appellant’s complaint does not provide any basis for appellate intervention.
Consideration of individual and cumulative sentence in context of features of offending
111․It remains to consider the complaint of manifest excess in terms of each individual sentence and the overall challenge maintained to the cumulative total effective sentence. In that regard, neither the individual sentences, nor a sentence of 3 years’ imprisonment with release following a period of 8 months in full-time custody are manifestly indicative of any misapplication of principle. On the contrary, the imposition of such a sentence following the appropriate weighing of the relevant subjective factors was within a range of legitimate outcomes, both individually and cumulatively.
112․Accordingly, the appellant has not established that her Honour’s sentence was manifestly excessive, unreasonable, or plainly unjust, nor that the decision was infected by any specific error. It follows that the appellant’s appeal against the sentences imposed must be dismissed.
Orders
113․For the above reasons, the Court makes the following order:
(1)The appeal is dismissed.
| I certify that the preceding one hundred and thirteen [113] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 28 February 2025 |
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