Lazarus v The King

[2023] NSWCCA 214

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Lazarus v R [2023] NSWCCA 214

Hearing dates:

15 May 2023

Date of orders:

30 August 2023

Decision date:

30 August 2023

Before:

Beech-Jones CJ at CL at [1]
Ierace J at [7]
Cavanagh J at [8]

Decision:

(1)   Leave to appeal is granted.

(2)   The appeal is dismissed.

Catchwords:

CRIME — Appeals — Appeal against sentence — Application for leave to appeal – possession of child abuse material – specific deterrence – general deterrence – sentencing factors – applicant resentenced – no lesser sentenced warranted

Legislation Cited:

Crimes Act 1914 (Cth), ss 3, 16A(2), 16BA

Criminal Code (Cth), ss 474.19(1), 474.22(1), 474.22A(1), 474.26(1), 474.27A(1)

Cases Cited:

Assheton v R (2002) 132 A Crim R 237; [2002] WASCA 209

Director of Public Prosecutions (Cth) v D’Alessandro (2010) 26 VR 477; [2010] VSCA 60

Director of Public Prosecutions (DPP) (Cth) v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301

Director of Public Prosecutions (DPP) (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Director of Public Prosecutions (DPP) (Cth) v Garside (2016) 50 VR 800; [2016] VSCA 74

Director of Public Prosecutions (DPP) (Cth) v Guest [2014] VSCA 29

Director of Public Prosecutions (DPP) (Cth) v Watson (2016) 259 A Crim R 327; [2016] VSCA 73

Director of Public Prosecutions (DPP) (Cth) vZarb (2014) 247 A Crim R 225; [2014] VSCA 347

Director of Public Prosecutions (DPP) v D’Alessandro (2010) 26 VR 477; [2010] VSCA 60

DL v R (2018) 265 CLR 215; [2018] HCA 32

Fitzgerald v R [2015] NSWCCA 266

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

R v Booth [2009] NSWCCA 89

R v Engert (1995) 84 A Crim R 67

R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370

R v Jones (1999) 108 A Crim R 50; [1999] WASCA 24

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

Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75

Turnbull v R [2019] NSWCCA 97

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Category:

Principal judgment

Parties:

Gerard Daniel Lazarus (Applicant)
Rex (Respondent)

Representation:

Counsel:
C O’Neill (Applicant)
A Chhabra and J Fennel (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (Cth) (Respondent)

File Number(s):

2020/209492

Publication restriction:

There is a non-publication order over any information identifying or tending to identify any child referred to in these proceedings or the victim LW.

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

04 March 2022

Before:

Judge C O’Brien AM

File Number(s):

2020/00209492

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant sought leave to appeal an aggregate sentence imposed on him by Judge O’Brien AM DCJ, in respect of 13 Commonwealth offences relating to the possession of child pornography material, use of a carriage service to transmit material to persons under 16 and the solicitation of child pornography material through use of a carriage service. Two additional offences involving the use of a carriage service to send indecent material to a person under 16 were also taken into account on a certificate pursuant to s 16BA of the Crimes Act 1914 (Cth).

The applicant was sentenced to an aggregate sentence of 6 years and 6 months imprisonment, with a non-parole period of 3 years and 9 months. The applicant relied on two grounds of appeal:

1. The sentencing judge did not determine what weight ought to be given to specific deterrence; and

2. The sentencing judge did not determine what weight ought to be given to general deterrence, having regard to the applicant’s mental health condition.

The respondent conceded error in respect of ground 2 but submitted that no lesser sentence was warranted in law.

The Court held, granting leave to appeal but dismissing the appeal (per Cavanagh J, Beech-Jones CJ at CL and Ierace JJ agreeing):

In respect of Ground 2:

1. Where a person’s mental health contributes to the commission of an offence in a material way, it may render an offender an inappropriate vehicle for general deterrence and result in a reduction of their sentence: [1], [7], [42].

DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194; R v Engert (1995) 84 A Crim R 67; DL v R (2018) 265 CLR 215; [2018] HCA 32, applied.

2. The Court accepted that the sentencing judge did not engage with the applicant’s submission on general deterrence, as his Honour did not indicate to what extent the applicant’s mental health conditions limited the importance of general deterrence in the exercise of sentencing discretion. Since error had been made out, it was unnecessary to consider Ground 1: [1], [7], [43]-[47].

In resentencing the applicant

3. The Court adopted the sentencing Judge’s findings of facts and objective seriousness for each offence as well as his Honour’s findings on the applicant’s subjective circumstances, other than in respect of deterrence: [1], [7], [48]-[49], [63].

Kentwell v The Queen (2014) 252 CLR 601; Turnbull v R [2019] NSWCCA 97, applied.

4. In respect of specific deterrence, the Court accepted that specific deterrence still had a limited role to play in the exercise of the sentencing discretion: [1], [7], [64]-[64].

5. The opinion of the forensic psychologist was not compelling or conclusive. There was no diagnosis of a recognised psychiatric condition which caused the offending conduct: [1], [7], [66]-[75].

6. General deterrence remains an important consideration. The uncertain nature of the applicant’s mental health problems tempered the importance of general deterrence only to a limited extent: [1], [7], [75]-[81].

Assheton v R (2002) 132 A Crim R 237; R v Jones (1999) 108 A Crim R 50; Director of Public Prosecutions (DPP) (Cth) v D’Alessandro (2010) 26 VR 477; Director of Public Prosecutions (DPP) (Cth) v Zarb [2014] VSCA 347; Fitzgerald v R [2015] NSWCCA 266; R v Gent (2005) 162 A Crim R 29; Director of Public Prosecutions (DPP) (Cth) v Beattie [2017] NSWCCA 301; Director of Public Prosecutions (DPP) (Cth) v Garside (2016) 50 VR 800; Director of Public Prosecutions (DPP) (Cth) v Watson [2016] VSCA 73; R v Booth [2009] NSWCCA 89; R v Porte (2015) 252 A Crim R 294; Director of Public Prosecutions (DPP) (Cth) v Guest [2014] VSCA 29 at [25], applied.

7. The Court found that no lesser sentence was warranted or should have been imposed by the sentencing judge.

Per Beech-Jones CJ at CL:

8. The process of instinctive synthesis does not require equal weight to be attached to all sentencing factors and appellate courts can develop general principles concerning the approach to sentencing for particular offences. Principles that govern the weight to be given to sentencing factors, such as general deterrence, are consistent with statutory provisions and do not unduly fetter the sentencing discretion: [1]-[6].

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194; Assheton v The Queen [2002] WASCA 209; (2002) 132 A Crim R 237; Director of Public Prosecutions (Cth) v D’Alessandro (2010) 26 VR 477; [2010] VSCA 60; R v Porte [2015] NSWCCA 174; (2015) 252 A Crim R 294; Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75, applied.

Judgment

1. BEECH-JONES CJ at CL: I have had the advantage of reading the judgment of Cavanagh J. Subject to what follows, I agree with his Honour.

2. One matter debated at the hearing of the appeal and in the written submissions that followed was the correctness of the statement in Assheton v The Queen [2002] WASCA 209; (2002) 132 A Crim R 237 at [35] per Malcolm CJ (with whom Murray and Steytler JJ agreed) that the nature of child pornography offences and the penalties attached to them is such that “general deterrence must be the paramount consideration given the prevalence and availability of child pornography” (see also, for example, Director of Public Prosecutions (Cth) v D’Alessandro (2010) 26 VR 477; [2010] VSCA 60 at [21] per Harper JA with whom Redlich JA and Williams AJA agreed; “D’Alessandro”; R v Porte [2015] NSWCCA 174; (2015) 252 A Crim R 294 at [60] per Johnson J with whom Leeming JA and I agreed; “Porte”). The applicant contended that such statements are contrary to Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 (“Markarian”) and are otherwise inconsistent with s 16A(2) of the Crimes Act 1914 (Cth).

3. In Markarian at [37], Gleeson CJ, Gummow, Hayne and Callinan JJ stated that “[i]n general, a sentencing court will, after weighing all of the relevant factors, reach a conclusion that a particular penalty is the one that should be imposed.” Their Honours then cited a passage from Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [74]-[76] per Gaudron, Gummow and Hayne JJ, which described that process as an “instinctive synthesis” and rejected a “two-stage” sentencing approach “in which an 'objective' sentence is first determined and then 'adjusted' by some mathematical value given to one or more features of the case, such as a plea of guilty or assistance to authorities”.

4. Thus, the process of instinctive synthesis identified in Markarian is one that requires “weighing all of the relevant factors” (at [37]). It is not, however, a process that requires that equal weight be attached to all such factors, much less one that involves all such factors being thrown in together and a sentencing figure produced at the end. Similarly, Markarian is not authority for the proposition that appellate courts cannot develop general principles concerning the approach to sentencing for particular offences or classes of offenders. If it did, then the principles in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177] (“De La Rosa”), which the applicant embraces, would also be in jeopardy.

5. Subsection s 16A(2) lists various factors that must be taken into account in the exercise of the sentencing function referred to in s 16A(1). As noted by Bell CJ in Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75 (“Totaan”), “nothing in s 16A(2) as a whole suggests any hierarchy of considerations or that varying degrees of importance should be placed upon each of the matters set out in subsection (2)” (at [83]; emphasis in original). That observation was directed to the statutory provision as a whole applying as it does to all sentences for federal offences. However, like other judicial discretions, while the power to impose a sentence must not be unduly fettered, it must also be exercised in accordance with both statute and principle. Principles governing the exercise of the sentencing discretion are developed by this Court, other intermediate Courts of Appeal and, ultimately, the High Court. Unlike the approach that was overturned in Totaan concerning s 16A(2)(p) of the Crimes Act, principles such as those suggested in Porte concerning the weight to be generally attached to general deterrence in a particular class of cases or in De la Rosa concerning the weight to be attached to various factors in the case of mentally ill offenders, are consistent with the statutory provisions and do not unduly fetter the sentencing discretion.

6. I agree with the orders proposed by Cavanagh J.

7. IERACE J: I agree with Cavanagh J, for the reasons expressed by his Honour.

8. CAVANAGH J: The applicant seeks leave to appeal against an aggregate sentence imposed in the District Court of New South Wales by his Honour, Judge O’Brien AM, on 4 March 2022.

9. The applicant entered pleas of guilty in respect of 13 Commonwealth offences relating to the possession of child pornography material and using a carriage service to transmit such material to persons under the age of 16, as well as soliciting child pornography material using a carriage service.

10. On sentence, his Honour also took into account two additional offences on a certificate pursuant to s 16BA of the Crimes Act 1914 (Cth) (“the Crimes Act”).

11. I set out below a table specifying the offences, the maximum penalties and the indicative sentences specified by his Honour:

Offences
Sequence	Description	Maximum Penalty	Indicative Sentence
3	Using a carriage service to transmit indecent communication to person under 16 years of age between 1 December 2014 to 30 November 2015. Section 474.27A(1) of the Criminal Code (Cth)	7 years imprisonment	18 months imprisonment
4	Possess or control child abuse material obtained or accessed using a carriage service on 16 July 2020. Section 474.22A(1) of the Criminal Code (Cth)	15 years imprisonment	18 months imprisonment
7	Using a carriage service to transmit indecent communication to person under 16 years of age between 19 August 2019 to 23 September 2019. Section 474.27A(1) of the Criminal Code (Cth)	7 years imprisonment	18 months imprisonment
9	Use a carriage service to cause child pornography material to be transmitted to the person between 1 December 2014 to 30 November 2015. Section 474.19(1) of the Criminal Code (Cth)	15 years imprisonment	2 years and 3 months imprisonment
10	Use a carriage service to access child pornography material between 1 December 2014 to 30 November 2015. Section 474.19(1) of the Criminal Code (Cth)	15 years imprisonment	1 year and 10 months imprisonment
13	Using a carriage service to transmit indecent communication to person under 16 years of age between 15 July 2020 to 16 July 2020. Section 474.27A(1) of the Criminal Code (Cth)	10 years imprisonment	1 year and 10 months imprisonment
14	Use a carriage service to cause child pornography material to be transmitted to the person between 1 May 2010 to 28 July 2014. Section 474.19(1) of the Criminal Code (Cth)	15 years imprisonment	15 months imprisonment
15	Use a carriage service to cause child pornography material to be transmitted to the person between 1 January 2017 to 20 September 2019. Section 474.19(1) of the Criminal Code (Cth)	15 years imprisonment	1 year and 10 months imprisonment
16	Use a carriage service to cause child pornography material to be transmitted to the person between 1 January 2017 to 20 September 2019. Section 474.19(1) of the Criminal Code (Cth)	15 years imprisonment	18 months imprisonment
18	Use carriage service to procure person under 16 years of age between 1 January 2017 to 20 September 2019. Section 474.26(1) of the Criminal Code (Cth)	15 years imprisonment	2 years and 3 months imprisonment
19	Using a carriage service to transmit indecent communication to person under 16 years of age, between 1 January 2017 to 20 September 2019. Section 474.27A(1) of the Criminal Code (Cth)	7 years imprisonment	15 months imprisonment
20	Use a carriage service to access child pornography material between 1 January 2017 to 20 September 2019. Section 474.19(1) of the Criminal Code (Cth)	15 years imprisonment	2 years imprisonment
22	Using a carriage service to access child abuse material between 1 June 2020 to 13 July 2020. Section 474.22(1) of the Criminal Code (Cth)	15 years imprisonment	2 years imprisonment
Offences taken into account pursuant to s 16BA Crimes Act
5	Use a carriage service to send indecent material to a person under 16 years of age, between 15 July 2020 and 16 July 2020. Section 474.27A(1) of the Criminal Code (Cth)	10 years imprisonment	N/A
21	Use a carriage service to send indecent material to a person under 16 years of age, between 1 January 2017 and 20 September 2019. Section 474.27A(1) of the Criminal Code (Cth)	7 years imprisonment	N/A

12. Having specified those indicative sentences, his Honour imposed an aggregate sentence of 6 years and 6 months imprisonment with a non-parole period of 3 years and 9 months, commencing on 16 July 2020. The applicant will be eligible for release to parole on 15 April 2024. The sentence will expire on 15 January 2027.

13. The applicant seeks leave to appeal on two grounds, being:

1. the sentencing judge did not determine what weight ought to be given to specific deterrence; and

2. the sentencing judge did not determine what weight ought to be given to general deterrence, having regard to the applicant’s mental health condition.

14. The respondent concedes error in respect of Ground 2 but says that no lesser sentence is warranted in law.

15. The respondent does not oppose leave to appeal being granted.

Circumstances of offending

16. An agreed statement of facts was tendered on sentence. All of the offences are Commonwealth child sex offences within the meaning of s 3 of the Crimes Act. As observed by the sentencing judge, the applicant’s conduct came to the attention of authorities following a report to the New South Wales Board of Education in December 2018 by a teacher (“LW”) who had taught a 14-year-old girl in Year 9 (“MA”) in 2014 and 2015. In 2018, MA contacted the teacher on Facebook referring to an online sexual relationship which she believed she had with him in 2014/2015.

17. The matter was reported to the Australian Federal Police. On investigation, it was determined that the applicant had communicated with MA in 2014 and 2015, pretending to be LW. Sequences 3, 9 and 10 relate to MA.

18. In December 2014, MA was contacted via the Whisper application by an unknown user listed as “the_Gal,” who commenced communications of a sexual nature. The user of this profile was the applicant. The applicant asked MA if she would engage in sexual activity with an older man and/or teacher. The applicant falsely stated that he was a science teacher and posed as LW. At the applicant’s request, MA sent a naked photograph of herself to him via her mobile phone. The applicant responded with a photograph of his penis and asked for more nude pictures.

19. Correspondence between MA and the applicant continued over a number of months, during which MA sent the applicant approximately 20 to 40 naked photographs of herself. They discussed sexual activity on a daily basis. The contact ceased when MA received abusive and threatening messages, which may have been sent from the applicant’s wife after she discovered the online relationship.

20. A month later, the applicant contacted MA using a different name (“daddy”), again requesting child abuse material from MA. They moved their communications to the Kik application so that MA could send the applicant child pornography images and videos of herself, as requested by the applicant. Again, MA believed she was in a relationship with her teacher, LW. The applicant told her he loved her and proposed various things, including going on a trip to the mountains.

21. Sequence 3 relates to the applicant taking photos of his penis and other sexually explicit photos of himself, which he sent to MA, who he knew to be 14 to 15 years of age.

22. Sequence 9 arises from the applicant causing MA to transmit child pornography material – that is, photos and videos of herself – to the applicant.

23. Sequence 10 arises from the applicant making specific requests of MA for child pornography videos, albeit she did not transmit the sexually explicit material requested by the applicant.

24. Following the arrest of the applicant and the seizure of his devices, the AFP located 70 images of a teenage girl who was identified as “Miki”. The images were dated 28 July 2014. It was discovered that the applicant had caused Miki to send him child abuse material when she was 13 to 15 years of age. They had sexual conversations. The applicant sent one image of himself to Miki.

25. Sequence 4 relates to the child abuse material identified on three hard drives which were seized from the applicant’s residence on 16 July 2020. The hard drive contained 111 child abuse material images comprising 45 “Category 1” files and 66 “Category 2” files. Another hard drive contained 81 child abuse material images consisting of 64 “Category 1” files and 17 “Category 2” files. The third hard drive contained 70 images of Miki which were classified as “Category 1” files. A further 20 child abuse material images were located, comprising 9 “Category 1” and 11 “Category 2” files.

16. Sequences 7, 13, 15, 16, 18, 19, 20 and 22 all relate to online communications between the applicant and eight different persons who were under the age of 16, or believed by the applicant to have been under the age of 16, at the time of the offending. These communications occurred between 2017 and 2020. They all involved the use of a carriage service by the applicant to either transmit indecent material to persons under the age of 16 or cause material to be transmitted to himself by those persons (which was deemed child pornography material).

17. The offending conduct included transmitting a communication to a person under the age of 16 with the intention of procuring sexual activity.

18. It is only necessary to say that the communications pertaining to those sequences occurred on the Whisper and Snapchat applications during 2017 to 2020. On each occasion, the applicant believed the person with whom he was communicating was either 13, 14 or 15 years of age. On each occasion, the content of the communication was sexually explicit and either involved discussions of sexual acts and abuse, requests from the applicant that the victims forward child abuse material to him, or the applicant sending sexually explicit photos of himself to the victims.

Remarks on sentence

29. The applicant gave oral evidence at the sentencing hearing. The applicant also relied on a report of Dr Derek Gilligan, psychologist, dated 7 January 2024. The sentencing judge accepted that, by using different online profiles, email addresses and usernames, the applicant had communicated with multiple persons under the age of 16 (or persons he believed to be under the age of 16) for the primary purposes of:

1. engaging in explicit conversations about sexual activity and abuse involving children under the age of 16 years, or persons who he believed to be under the age of 16, for sexual gratification;

2. soliciting images and videos of child pornography/child abuse material; and

3. causing images and videos of child pornography/child abuse material to be transmitted to him by children under the age of 16, or persons who he believed to be under the age of 16.

30. The sentencing judge observed that offences of this type are very serious. Whilst the offending chiefly concerned the transmission of child abuse and other indecent material and the solicitation and possession of such material, it also involved the applicant procuring a child for sexual activity.

31. After referring to the seriousness of the offending and the importance of protecting children from being sexually preyed upon by adults, the sentencing judge considered the objective seriousness of the offences. His Honour observed that the applicant’s conduct involved an extended period of predatory and persistent criminal behaviour. At all times, the applicant was aware of the age of the young girls with whom he was communicating, having actively sought them out. Further, in respect of the offending involving MA, the applicant persisted in his deception of MA. He pretended to be someone whom she knew and had feelings for.

32. After considering each of the sequences individually, the sentencing judge made findings about the objective seriousness of each sequence, as follows:

1. Sequence 3 – at about the mid-range of objective seriousness;

2. Sequence 9 ─ at or slightly below the mid-range;

3. Sequence 10 ─ at about the mid-range;

4. Sequence 14 ─ below the mid-range but not at the bottom of the range;

5. Sequence 4 ─ at the lower end of the range;

6. Sequences 7, 16, 19 and 22 – below the mid-range;

7. Sequences 13, 15 and 20 ─ at about the mid-range; and

8. Sequence 18 ─ at a point slightly above the mid-range.

33. The sentencing judge considered the victim impact statements and, in doing so, accepted that LW could be properly described as a victim of the offences involving MA.

34. The sentencing judge then moved on to consider the applicant’s subjective case.

Subjective case

35. At the time of the offending, the applicant was married and had two teenage children. He worked as an electrician and engaged in “fly in, fly out” (“FIFO”) work with mining companies. He reported to Dr Gilligan that his relationship with his wife deteriorated during the period of FIFO work. He was lonely, drank alcohol to excess and started using the internet to communicate with people. He had been an avid consumer of pornography for many years. His online activities descended into the offending conduct.

36. The applicant gave evidence on sentence expressing remorse and contrition for his conduct. The sentencing judge accepted that the applicant had shown remorse and recognised that his conduct had a significant effect on the victims, his own children, and the teacher (LW) whose identity he had portrayed.

37. The sentencing judge accepted that the applicant’s remorse was genuine and that he had a veritable desire to engage in psychological treatment upon his release from custody. He demonstrated insight into his offending. The sentencing judge assessed the applicant’s prospects of rehabilitation as laying somewhere between reasonable and good.

38. The sentencing judge then referred to the matters set out in s 16A(2) of the Crimes Act, identifying some of the findings that he had already made and linking them to the statutory factors which were required to be taken into account. In addition, his Honour remarked that:

1. he was satisfied that the applicant had cooperated with law enforcement agencies in the investigation of the offence; and

2. he was satisfied that the sentence to be imposed would serve the purposes of specific deterrence and general deterrence and that it would provide adequate punishment for the applicant.

39. His Honour allowed a 25% discount on the sentence to reflect the value of the applicant’s early guilty pleas. His Honour also had regard to the onerous conditions of custodial imprisonment, especially during the COVID-19 pandemic.

40. His Honour decided to impose an aggregate sentence, given the number of offences for which the applicant would be sentenced. Regard was also had regard to the applicant’s need for ongoing psychological intervention and, as such, his Honour accepted that there should be an extended period of supervision on parole to foster the applicant’s reintegration into the community.

Ground 2

41. The applicant submits that his Honour did not determine what weight ought to be given to general deterrence, when having regard to the applicant’s mental health condition.

42. In Director of Public Prosecutions (DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 (“De La Rosa”) at [177], McLellan CJ observed that “[w]here the state of a person’s mental health contributes to the commission of the offence in a material way”, it may have various consequences for the weight to be attributed to various sentencing factors, including rendering “an offender… an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed” (citing, inter alia, R v Engert (1995) 84 A Crim R 67 at 71).

43. Before the sentencing judge, the parties debated the application of this principle. The applicant’s Counsel pointed to the evidence of Dr Gilligan, which is outlined below. In written submissions to the sentencing judge, it was contended that the applicant was “not a suitable vehicle for general deterrence based on his long-term low-grade dysthymia with anxiety and schizotypal autistic like odd and eccentric features”. The Crown Prosecutor also addressed the principles concerning the potential diminution of the weight to be attached to general deterrence on account of an offender’s mental illness in detail.

44. The sentencing judge’s reasons were generally comprehensive. However, they did not address the parties’ submissions on this issue at all. Instead, his Honour simply found “that the sentence to be imposed will serve the purpose of general deterrence, it being the primary consideration in sentencing for matters of this type”. Although his Honour was not obliged to accept the applicant’s submissions, the contention that general deterrence should be ameliorated had to be addressed.

45. The respondent accepts that Ground 2 is established, having regard to the principles set out in De La Rosa.

46. The respondent accepts that although the sentencing judge was satisfied that the sentence to be imposed would serve the purpose of general deterrence, his Honour’s finding in this respect did not reveal his conclusion about the degree to which the need for general deterrence was tempered by the applicant’s mental health condition, if at all.

47. As error has been made out, it is necessary to resentence the applicant. In those circumstances, it is not necessary to consider Ground 1 further.

Re-sentencing

48. As error has been established, it is necessary to re-sentence the applicant (Kentwell v The Queen (2014) 252 CLR 601). I must carry out the sentencing exercise afresh, albeit I may adopt the sentencing judge’s findings of fact where those findings are not disputed (Turnbull v R [2019] NSWCCA 97 at [44] per Simpson AJA).

49. The applicant does not challenge the findings made by the sentencing judge, apart from those relating to specific and general deterrence. In those circumstances, the resentencing of the applicant should proceed on the basis of the unchallenged factual findings made by the sentencing judge (DL v R (2018) 265 CLR 215; [2018] HCA 32 at [9]). That is accepted by the applicant. Indeed, the focus of the applicant’s submissions on resentence are on the weight to be afforded to specific and general deterrence.

50. In support of his submissions on resentence, the applicant relies on his own affidavit of 27 April 2023, as well as the affidavit of his solicitor, Stephen Eccleshall, dated 27 April 2023.

51. The applicant states that he has been well-behaved in gaol, he has worked when he had the opportunity to do so and he is not in breach of any custodial disciplinary rules. Further, he says that his time in custody has been more difficult due to his mental health issues and the COVID-19 restrictions. He says that he found those restrictions to be particularly isolating.

52. He has not been able to resume his university studies in aerospace engineering, although he has been reading maths and physics books for intellectual stimulation. He has participated in vocational training courses in custody when available.

53. The affidavit from the applicant’s solicitor essentially confirms these matters. Further, the Corrective Services material supports the applicant’s assertion that he has been taking whatever work opportunities have been available to him, that he has been well-behaved and that he has completed the appropriate programs.

54. The applicant submits that the weight to be attributed to specific deterrence should be limited, considering his lack of prior convictions, his good character, the low to moderate risk of re-offending and the reasonably good prospects of rehabilitation.

55. In his written submissions, the applicant initially submitted that general deterrence is the central sentencing factor for the category of offences which he committed. However, the applicant subsequently withdrew that submission, stating that there is no hierarchy of considerations under s 16A(2) of the Crimes Act.

56. The applicant correctly identifies that an offender’s mental health condition may moderate the weight to be attributed to general deterrence, having regard to the De La Rosa principles (see, in particular, McClellan CJ at CL at [177]). He relies on the opinion of Dr Gilligan in this regard, submitting that there was a causal connection between his mental health issues (which stem from childhood trauma) and his offending conduct.

57. Having said that, the applicant accepts that any reduction in the weight to be afforded to general deterrence based on his mental health condition would not be substantial. As I will discuss, there may be good reasons for such a concession.

58. The respondent’s primary position is that no lesser sentence is warranted in law. It also limits its submissions to specific and general deterrence.

59. Although the respondent accepts the factors identified by the applicant as tempering the weight to be given to specific deterrence, the respondent also refers to factors such as the extended period of offending, the use of the internet to perpetrate the offences and the anticipated lack of support from the applicant’s family members following his release from custody as factors which should be considered when assessing his risk of reoffending.

60. The respondent submits that the weight to be given to specific deterrence is not merely met by the imposition of a full-time custodial sentence. The sentence must be of appropriate severity, having regard to all of the sentencing factors, including the need to ensure adequate punishment for the offences: s 16A(2)(k) of the Crimes Act.

61. In respect of general deterrence, the respondent accepts that there is some evidence of a causal relationship between the offending and the applicant’s mental condition (having regard to the report of Dr Gilligan), but it submits that the high watermark of Dr Gilligan’s assessment is devoid of any formal diagnosis. For example, the respondent points to the following passage in Dr Gilligan’s report:

“He did present as someone who has likely experienced some childhood-based trauma, resulting in social withdrawal, poor interpersonal skills, long-term low-grade dysthymia with anxiety, with mixed traits of dependence, schizotypal autistic like odd and eccentric features, with anxious-avoidant type traits.”

62. The respondent submits that even if this Court accepts that there is a causal nexus between the applicant’s mental illness and the offending conduct, any such connection would be so slight as to warrant no or negligible tempering of the need for general deterrence. The respondent submits that the sentence imposed at first instance properly reflects the gravity of the series of offences.

Findings as to specific deterrence

63. For the purposes of resentencing, I adopt the findings of the sentencing judge on objective seriousness in respect of each offence. There is no challenge to those findings. Further, I accept that the applicant is remorseful and that he has a low to medium risk of reoffending. I accept that he has good prospects of rehabilitation and, further, that his psychological treatment needs are unlikely to be met in custody.

64. Those factors suggest that the weight to be given to specific deterrence in the exercise of the sentencing discretion is somewhat limited. However, considering the fact that the offending took place over a period of eight years and the likely absence of family support following the applicant’s release from custody, I am satisfied that specific deterrence still has a role to play in the exercise of the sentencing discretion.

65. I accept the respondent’s submission that the need for specific deterrence is not met by the mere imposition of a full-time custodial sentence. The need for specific deterrence is a factor to which I have regard in determining the appropriate sentence, albeit the weight which I place on it is limited.

Findings as to general deterrence

66. Having said that, in my view, general deterrence remains a significant factor on sentence. I say this for a number of reasons.

67. Firstly, whilst the applicant submits that the opinion of Dr Gilligan was not subject to any challenge at the sentencing hearing, the opinion is hardly compelling or conclusive. The applicant reported an unhappy childhood and a difficult schooling life to Dr Gilligan. His unhappiness arose in part from his parents’ divorce and his mother’s mental health issues. He had very few friends at school and he did not feel socially accepted, although he was never diagnosed with any childhood disorders.

68. On leaving school, he completed his trade certificate and worked as an electrician. He was promoted to the role of safety officer. However, he developed low moods with suicidal ideation. He undertook a joint venture renovation project with his brother-in-law but, unfortunately, that did not work out. He then commenced FIFO work, which caused him to feel isolated and alone. He had trouble connecting with his co-workers and he went out partying and using drugs.

69. He reported to Dr Gilligan that he experienced a deterioration in his mental health in the years that he worked in the mines. He also reported that his relationship with his wife deteriorated around that time. He said that he suffered severe anxiety and stress in the context of his isolation and was drinking alcohol in an attempt to cope.

70. The applicant attributed the deterioration in his relationship with his wife and his ultimate descent into sexual offending to the difficulties he experienced whilst doing the FIFO work. Whilst he was away, he resorted to drinking alcohol in his room and connecting with others through internet chat rooms. This deteriorated into online conversations with adult females, during which he engaged in role-play. Eventually, this led him to connect with teenage girls, engage in sexually explicit dialogue and download child abuse material.

71. In 2016, the applicant is said to have disclosed symptoms of depression and suicidal ideation to his employer and, as a result, his employment was terminated. He then enrolled in an aerospace engineering degree at Newcastle University whilst working casually as an electrician. When the charges were laid against him, he remained with his wife and two teenage daughters.

72. Dr Gilligan believes that the onset of the applicant’s offending behaviour is best understood in conjunction with the exacerbation of his poor mental health and dysfunction from around 2011. The applicant’s move to FIFO employment around 2012 worsened the situation. He retreated inwards to his fantasy life, which resulted in role-play with a thematic focus on teenage girls.

73. In my view, Dr Gilligan’s opinions are somewhat general in nature. There is no diagnosis of a recognised psychiatric condition which can be said to have caused the offending conduct. I accept that this period of FIFO work coincided with difficulties in the applicant’s marital relationship and exacerbated his long-term feelings of isolation, loneliness and low self-esteem. I accept that he suffered from periods of anxiety and that all of these feelings somewhat explain his descent from using adult pornography into the offending conduct. Whilst childhood trauma may be at the root of these feelings (as suggested by Dr Gilligan), the applicant successfully completed his Higher School Certificate, he was employed for a number of years, he maintained a stable domestic relationship and he undertook tertiary study at a very high level. Absent a specific diagnosis of a psychiatric illness, any explanation for his behaviour must be considered in conjunction with his apparent ability to pursue a relatively normal and stable life.

74. In his own evidence, the applicant confirmed the history which had been outlined by Dr Gilligan. He accepted that his online conversations occurred on a daily basis, often multiple times a day. However, he denied that he ever intended to meet children.

75. In my view, there is some uncertainty about the true nature and extent of the applicant’s mental ill-health in this case. His mental health problems can only be loosely described as contributing to the offending conduct and, as such, his moral culpability may only be reduced to a certain extent.

76. Ultimately, I prefer the respondent’s approach to the issue of general deterrence. In a case such as this, general deterrence remains an important consideration in the exercise of the sentencing discretion. Reasons for this are highlighted by the respondent as follows:

“(a) General deterrence is a significant consideration in child sex exploitation offending given the following:

i. the prevalence and ready availability of child abuse material, the recognition that markets exist for the sexual exploitation of children and the insidious impact of child abuse material which has become an international problem, “significant aggravated with the advent of the internet”; ^[1]

ii. the networks of like-minded people exchanging child abuse material and the difficulty of detection by law enforcement particularly due to the anonymity provided by the internet; ^[2]

iii. the vulnerability of the abused children who feature in the child abuse material, “who are too young to avoid the exploitation to which they are being subjected”^[3] who often come from disadvantaged countries that lack adequate resources to provide protection to children; ^[4]

iv. given the vulnerability of victims, the ease of electronic and/or internet based transmission, the prolific and world-wide nature of such offending, and difficulty of detection by law enforcement; ^[5] and

v. the public interest in stifling the transmission and use of child abuse material as a means of protecting children^[6] and signalling to the community that it will not be tolerated. ^[7] ”

1. Assheton v R (2002) 132 A Crim R 237 at [35]; R v Jones (1999) 108 A Crim R 50 at 51; Director of Public Prosecutions (DPP) (Cth) v D’Alessandro (2010) 26 VR 477 at [21]; Director of Public Prosecutions (DPP) (Cth) v Zarb [2014] VSCA 347 at [34]; Fitzgerald v R [2015] NSWCCA 266 at [33]; R v Gent (2005) 162 A Crim R 29 at [33].

2. Director of Public Prosecutions (DPP) (Cth) v Beattie [2017] NSWCCA 301 at [130]; Director of Public Prosecutions (DPP) (Cth) v Garside (2016) 50 VR 800 at [20]; Director of Public Prosecutions (DPP) (Cth) v Watson [2016] VSCA 73.

3. Director of Public Prosecutions (DPP) (Cth) v D’Alessandro (2010) 26 VR 477 at [23].

4. Director of Public Prosecutions (DPP) (Cth) v Beattie [2017] NSWCCA 301 at [129]; R v Booth [2009] NSWCCA 89 at [41]; R v Porte (2015) 252 A Crim R 294.

5. R v Porte [2015] NSWCCA 174.

6. Director of Public Prosecutions (DPP) (Cth) v Guest [2014] VSCA 29 at [25]; R v Gent (2005) 162 A Crim R 29 at [65].

7. Director of Public Prosecutions (DPP) (Cth) v D’Alessandro (2010) 26 VR 477 at [23].

77. In Director of Public Prosecutions (DPP) v D’Alessandro (2010) 26 VR 477; [2010] VSCA 60 at [21], Harper JA (with whom Redlich JA and Williams AJA agreed) set out the principles which should be applied to offending involving child abuse material:

“[21] When construing and applying Commonwealth legislation, this court follows principles of comity in according respect to the decisions of intermediate appellate courts of other jurisdictions concerning the same legislation. It is therefore worth recording that there seems to be unanimous support across the jurisdictions for a number of propositions. First, that the problem of child pornography is an international one. Secondly, that the prevalence and ready availability of pornographic material involving children, particularly on the internet, demands that general deterrence must be a paramount consideration. Thirdly, that those inclined to exploit children by involving them in the production of child pornography are encouraged by the fact that there is a market for it. Fourthly, that those who make up that market cannot escape responsibility for such exploitation. Fifthly, that limited weight must be given to an offender’s prior good character. Sixthly, that a range of factors bear upon the objective seriousness of the offences to which the respondent in this case pleaded guilty. They include:

(a) the nature and content of the pornographic material — including the age of the children and the gravity of the sexual activity portrayed;

(b) the number of images or items of material possessed by the offender;

(c) whether the possession or importation is for the purpose of sale or further distribution;

(d) whether the offender will profit from the offence.”

78. In the end, the weight I give to general deterrence as a sentencing factor is tempered by the applicant’s mental health problems but only to a limited extent. I consider that general deterrence remains an important factor in the sentencing of the applicant.

79. I have adopted the factual findings of the sentencing judge, which were not the subject of challenge. I have also adopted his Honour’s findings as to objective seriousness. I have considered the submissions of the parties in respect of specific and general deterrence and I have made findings in that regard.

80. The offending conduct spanned a lengthy period of 8 years. It involved more than one young person and it also involved deception through use of another person’s identity. The offences do not just involve possession of child abuse material but they also include using a carriage service to procure a child under the age of 16 for sexual activity.

81. I have considered the aggregate sentence imposed. In my view, although the applicant has successfully established error under Ground 2, for the reasons identified, no lesser sentence is warranted or should have been imposed by the sentencing judge.

82. In the circumstances, the orders I propose are:

1. leave to appeal is granted; and

2. the appeal is dismissed.

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Endnotes

Amendments

30 August 2023 - Fixed numbering in headnote

14 September 2023 - Appearance details updated

Decision last updated: 14 September 2023