Lyons v The Queen
[2019] VSCA 242
•29 October 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0251
| CHRISTOPHER GREGORY LYONS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WHELAN and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 21 October 2019 |
| DATE OF JUDGMENT: | 29 October 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 242 |
| JUDGMENT APPEALED FROM: | DPP v Lyons [2018] VCC 1716 |
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CRIMINAL LAW – Application for leave to appeal against sentence – Access and transmission of child pornography offences – Proposed grounds that erroneously sentenced as serious sex offender, sentence manifestly excessive, and cumulation offends the totality principle – Leave granted but appeal dismissed as no different sentence should be imposed – Serious sex offender declaration an error – Sentence justified by seriousness of offending and current participation in custody in sex offender program – Cumulation justified by distinct conduct constituting the charges – Sentencing Act 1991 ss 6D, 6E – Criminal Procedure Act 2009 s 281(1)(a) – Gillespie v The Queen [2018] VSCA 151 applied.
CRIMINAL LAW – Sentencing – Sentenced as serious sex offender on Commonwealth offences – Serious offender provisions not applicable to Commonwealth offences – Leave granted and order amended – Sentencing Act 1991 s 6F – Criminal Procedure Act 2009 s 325 - McKenzie v The Queen [2018] VSCA 34 cited.
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| APPEARANCES: | Counsel | Solicitors |
| Applicant | Mr P J Smallwood with Mr J Connolly | Leanne Warren & Associates |
| Respondent | Ms K Breckweg | Ms A Pavleka, Solicitor for Public Prosecutions (Cth) |
WHELAN JA:
On 17 October 2018 the applicant pleaded guilty to two Commonwealth offences; using a carriage service to access child pornography, and using a carriage service to transmit child pornography.[1] An additional offence of soliciting child pornography[2] was to be taken into account pursuant to s 16BA of the Crimes Act 1914 (Cth). The maximum penalty for each of the charged offences was 15 years’ imprisonment.
[1]The relevant provision of the Criminal Code (Cth) at the time was s 474.19(1).
[2]Also contrary to s 474.19(1) of the Criminal Code (Cth).
On 19 October 2018 a judge in the County Court sentenced the applicant to a term of 18 months’ imprisonment on each of the charged offences.[3] He directed that the sentence on the first charge commence on the day of sentence, and that the sentence on the second charge commence one year later, on 18 October 2019. Thus, the total effective sentence imposed was 2 years 6 months’ imprisonment. The judge further ordered that the applicant be released on a recognizance release order to be of good behaviour for four years after serving 18 months of the sentence of imprisonment.
[3][2018] VCC 1716 (‘Reasons’).
The applicant now seeks leave to appeal on three proposed grounds. They are:
(1)The sentencing judge erred by sentencing the applicant as a serious sexual offender.
(2)The sentence imposed on charge 2 is manifestly excessive.
(3)The order that the sentence imposed on charge 2 commence on 18 October 2019, which has the effect of requiring the applicant to serve 12 months of the 18 months imposed on that charge cumulatively to the sentence imposed on charge 1, infringes the totality principle.
The offending
Charge 1 on the indictment was a charge of accessing child pornography. The period of the offending was between 20 September 2014 and 11 September 2017. The total number of images was 640 and the total number of videos was 139. The material accessed was categorised in accordance with the Australian National Victim Image Library scale. The majority of the material fell within categories 2, 3 and 4. The category 2 material depicted young boys touching and masturbating their penises. The category 3 material depicted very young boys in proximity to adult male penises. The category 4 material depicted very young boys being penetrated by adult men.
Charge 2 was a charge of transmitting child pornography. It was committed between 26 January 2015 and 28 August 2016. The relevant conduct was constituted by ‘chat’ conversations over the internet with others. The offending transmissions were very substantially the transmission of textual child pornography, but in that context there was also a transmission of images and a direction to a website with videos. The content of the textual transmissions was extreme, involving the discussion and planning of crimes of a most depraved and violent nature against children. One of the videos watched and discussed enthusiastically by the applicant depicted a child’s decapitation.
The offence of soliciting child pornography which was to be taken into account occurred on 26 January 2015 during the course of the chat conversations referred to. The applicant asked one of the persons he was communicating with:
Do you have any young porn? Any daddy-son? Daddy-son fucking with cum?
When questioned by police in relation to the chat conversations, amongst other things, the applicant suggested that it was all just ‘fantasy’.
Psychological report tendered on the plea
Prior to the plea the applicant had been assessed by the forensic psychologist, Patrick Newton, and had begun treatment with an associate provisional psychologist of Mr Newton’s. Mr Newton had seen the applicant on two occasions and had conducted a telephone consultation on one further occasion. He produced a detailed report dated 1 October 2018 which was tendered on the plea.
The applicant was 28 years old when he commenced the relevant offending. He was 32 at the time of Mr Newton’s assessment and at the date of sentence.
In his report Mr Newton set out the applicant’s personal history. He had had a normal upbringing. He had experienced bullying in secondary school as a consequence of his homosexual sexual orientation. He nevertheless had successfully completed his VCE and had successfully undertaken tertiary study. His work history was good.
Mr Newton recorded that the applicant reported to him that he had been the victim of sexual abuse at the age of seven on two occasions by his gym coach. The abuse involved fondling of his genitals.
Mr Newton set out the applicant’s account of his difficulty in coming to terms with his homosexuality and the social problems which that had caused for him. He reported some heavy drinking but he indicated that he had stopped drinking after his arrest. The applicant has no prior criminal record.
Mr Newton’s assessment of the applicant’s offending was concerning. In Mr Newton’s opinion the offending showed ‘clearly paedophilic fantasies together with sadistic and deeply disturbing material depicting the dismemberment and murder of children in sexual contexts’. A little later Mr Newton said:
In short, Mr Lyons’ engagement with paedophilic, violent, sadistic and fetish-related material has been intense and multifaceted. It not only encompasses online behaviour, but has also involved obsessive use of diverse sexual fantasies for masturbation, compulsive recourse to sexuality in an attempt to manage stress, and the creation and transmission of deviant fantasy material in an effort to connect with people. It is clearly deeply pathological and problematic and there is a compelling need for Mr Lyons to receive comprehensive sex-offender treatment.
Mr Newton concluded that the applicant met the diagnostic criteria for paedophilic disorder. He referred to the treatment which the applicant had undertaken but said that progress had been ‘quite limited’. He said that the applicant’s insight into his behaviour was ‘not well developed’. Notwithstanding this, he reported that the applicant had engaged positively with treatment and had been a motivated participant.
Mr Newton addressed at some length the risk of re-offending concluding that it was ‘no less’ than moderate. Mr Newton emphasised that the ‘most pressing rehabilitative need’ is participation in specialist sex offender treatment.
Reasons
In his Reasons the judge began by setting out the circumstances of the offending in greater detail than I have done.[4] The nature of the offending conduct was accurately summarised by Mr Newton in the passage quoted above.
[4]Reasons [3]–[29].
The judge then set out the applicant’s personal circumstances.[5]
[5]Reasons [30]–[35].
The judge addressed Mr Newton’s report in some detail. Amongst other things, he referred to the diagnosis of paedophilic disorder, the ‘compelling need’ for treatment, and the treatment in which the applicant had been engaged in since May 2018 and his ‘limited’ progress.[6]
[6]Reasons [38]–[44].
The judge referred to the applicable sentencing principles,[7] and to material in relation to current sentencing practice which had been provided to him.[8]
[7]Reasons [46]–[47].
[8]Reasons [48]–[50].
The judge referred to the applicant’s guilty pleas, emphasising their utilitarian value but also accepting that the pleas indicated and demonstrated ‘some remorse’ on the applicant’s part.[9]
[9]Reasons [51]–[53].
In relation to the charges the judge observed that the offending was very serious and that the applicant was ‘an end user in this market of depravity where young children are exploited and violated’.[10] The judge assessed the applicant’s prospects of rehabilitation as ‘guarded’.[11]
[10]Reasons [56].
[11]Reasons [66].
Immediately prior to imposing the sentences, the judge said:
The principles of general and specific deterrence are significant factors in assessing your total sentence to achieve a just sentence and for the protection of the community, I have sentenced you as a serious sexual offender and note that in the record pursuant to s 6F of the Sentencing Act and I will order that you be placed on the Sex Offender Registration for life. Each of the charges, that is Charges 1 and 2, are Class 2 charges under that Act.
I find it is appropriate to impose only that degree of cumulation of sentences that reflects the different events of sexual offending by you. To do otherwise, may produce a sentence which is not proportionate and would breach the principle of totality in sentencing. A sentence of imprisonment to be served is the only appropriate sentence.[12]
[12]Reasons [67]–[68].
At the hearing before us we were told that the judge’s reference to having sentenced the applicant as a ‘serious sexual offender’, and for that fact to be noted in the record, was not a matter that had been the subject of any submissions before him. As was accepted by counsel for the respondent before us, the applicant had not met the requirements to be a serious sexual offender under Part 2A of the Sentencing Act 1991 (Vic) and, in any event, those provisions do not apply to sentences on Commonwealth offences.[13]
[13]McKenzie v The Queen [2018] VSCA 34, [22].
Submissions
The submissions made on all three proposed grounds overlapped and were focused upon the error made by the judge and its consequences.
It was submitted on behalf of the applicant that the sentencing judge’s statement that he sentenced the applicant as a serious sexual offender was a clear error. Relying upon this Court’s decision in Gillespie v The Queen,[14] it was submitted that the error was material as it could not be concluded that it ‘could not have materially affected’ the sentence.[15] It was submitted that it could have affected the sentence because of the requirement in s 6D of Part 2A of the Sentencing Act that the sentencing judge must regard the protection of the community as the principal purpose for which the sentence is imposed, and because of the requirement in s 6E that sentences must be served cumulatively unless otherwise directed by the Court.
[14][2018] VSCA 151 (‘Gillespie’).
[15]Ibid [48]–[53].
On the question of whether a different sentence ought to be imposed, it was submitted on behalf of the applicant that the most important consideration was that he have long-term sex offender treatment. It was submitted that this could best be achieved by imposing a condition on the recognizance release order.
It was submitted that the applicant had already served 369 days in custody and that he ought to be released now on a recognizance release order with a condition requiring participation in a sex offender program.
Counsel for the applicant informed the Court that the applicant had recently begun a sex offender program in custody and that he had completed seven of forty sessions as part of that program. It was expected that he would complete the program in February 2020.
Under the current sentence the applicant would be released under the recognizance release order in April 2020.
On behalf of the respondent it was conceded that the judge’s reference to the applicant being sentenced as a serious sexual offender was an error. It was submitted that the error was not material and that it had had no consequence. There was only one reference to it in the Reasons.[16]
[16]Excluding a reference at [76] after sentence had been imposed and the orders were being pronounced.
It was submitted that the cumulation the judge had ordered was, in the circumstances, modest, as the offending which constituted the second charge was discrete serious offending.
It was submitted on behalf of the respondent that releasing the applicant early and imposing a condition on the recognizance release order would be ‘counterproductive’ as the applicant is already undertaking a sex offender program in custody.
Analysis
The judge made an error when he said that he was sentencing the applicant as a serious sexual offender. There were three potential consequences of that error. First, the judge may have imposed a more severe sentence because of the provision in s 6D(a) of the Sentencing Act requiring him to have regard to the protection of the community as the principal purpose for which the sentence is imposed. Secondly, he might have imposed a disproportionate sentence pursuant to s 6D(b) of the Sentencing Act. Thirdly, the cumulation which he ordered may have been greater because of the presumption of cumulation provided for in s 6E of the Sentencing Act in relation to serious sexual offenders in contrast to the presumption of concurrency which would otherwise apply.
There is no suggestion that the judge imposed a disproportionate sentence. That concern can be put to one side.
In Gillespie this Court addressed the relevance of the consideration concerning protection of the community when an error of this kind is made.[17] In substance, it was determined that there is a sentencing error within the meaning of s 281(1)(a) of the Criminal Procedure Act 2009 (Vic) when such an error is made unless the Court is satisfied that the mistake ‘could not have materially affected’ the decision. If the Court cannot be so satisfied, the Court must then consider whether a different sentence should be imposed under s 281(1)(b).
[17]Gillespie [2018] VSCA 151, [48]–[53].
In relation to the issue of concurrency and cumulation, it is noteworthy that the judge expressed the relevant issue as being one as to the ‘degree of cumulation’ that he would ‘impose’. This could be seen as indicating that he was proceeding from a presumption of concurrency rather than a presumption of cumulation.
In all the circumstances it seems to me to be unlikely that the judge’s error did materially affect the sentence. I am unable to be satisfied, however, that it ‘could not have materially affected’ that sentence. Accordingly, in my view leave to appeal should be granted, and it becomes necessary to consider whether a different sentence should be imposed.
In my opinion no different sentence should be imposed.
The sentences imposed by the sentencing judge, and the cumulation which he ordered, were, in my opinion, appropriate to the offending.
This was a serious instance of the offence of accessing child pornography. The relevant material included considerable material in the higher classifications of seriousness. As the judge observed, the applicant was an end user in a market of depravity where young children are exploited and violated. The material the subject of charge 2 was both depraved and violently sadistic. It included the, at least purported, planning of shocking crimes against children, and included accessing a video of a child being murdered in a brutal and sadistic manner.
Whilst the respective periods of offending did entirely overlap, the conduct involved in charge 2 was quite distinct from that in charge 1 and in relation to charge 2 there was an additional offence to be taken into account.
A further consideration when determining whether a different sentence should be imposed is the applicant’s current participation in the sex offender program. I accept the respondent’s submission that it would be counterproductive to now impose a sentence which would interfere with the completion of that program.
In the circumstances I would grant leave to appeal but dismiss the appeal. I would order pursuant to s 325 of the Criminal Procedure Act that the ancillary order recording that the applicant had been sentenced as a serious sexual offender be set aside.
PRIEST JA:
I agree with Whelan JA.
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