Maine v R

[2018] VSCA 56

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0015

ROBERT GEORGE MAINE	Appellant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, TATE JA and BEALE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 November 2017
DATE OF JUDGMENT:	8 March 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 56
JUDGMENT APPEALED FROM:	[2016] VCC 1992 (Judge Wischusen)

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CRIMINAL LAW – Appeal – Sentence – Use a carriage service to access child pornography material – Knowingly possess child pornography material – Whether individual sentences and total effective sentence manifestly excessive – Prior convictions for similar offending –Offending occurred only a few months after parole period expired – No error – Appeal dismissed – Criminal Code 1995 (Cth) s 474.19(1), Crimes Act 1958 s 70, Sentencing Act 1991 s 6D.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D N Sala	Stary Norton Halphen
For the Respondent	Mr P J Doyle	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

MAXWELL P

TATE JA

BEALE AJA: 

Impugned Sentence

1. On 16 December 2016, following a plea of guilty, the appellant was sentenced as follows:

Charge	Offence	Maximum	Sentence	Cumulation & Commencement
1	Use carriage service to access child pornography material [Criminal Code 1995 (Cth) s 474.19(1)]	15y	3y 6m NPP 2y	Commence 18m before the expiration of sentence on charge 2.
2	Knowingly possess child pornography material [Crimes Act 1958 s 70[1]]	5y	2y 6m NPP 18m	Base
Total effective sentence (combined)		4y 6m
Non-parole period (combined)		3y
Pre-sentence detention declared		33 days
Section 6AAA statement (charge 2 only)		3y 6m NPP 2y

[1]Repealed and replaced by Crimes Amendment (Sexual Offences) Act 2016 ss 16, 18. See now Crimes Act 1958 s 51G.

Summary of conclusions

1. The Court would dismiss the appellant’s appeal against sentence, which is based on one ground (manifest excess), for the following reasons:

·first, the appellant has prior convictions for similar offending for which he received significant terms of imprisonment;

·second, within a few months of the expiration of his parole period in relation to a previous sentence for similar offending, he began accessing child pornography again and continued to access it over a period of approximately five months;

·third, he accessed the child pornography despite having completed a child sex offenders program whilst undergoing his previous sentence and despite receiving regular counselling during the offending period;

·fourth, his prospects of rehabilitation were poor and, thus, specific deterrence, as well as general deterrence, loomed large in the sentencing task confronting the primary judge;

·fifth, whilst the number of images accessed by the appellant were comparatively low, that consideration was but one of a number of considerations that had to be taken into account by the primary judge in determining an appropriate sentence;

·sixth, the maximum penalty on Charge 1 was 15 years’ imprisonment.  The sentence imposed for Charge 1, which was a rolled up charge, was only 23 per cent of the maximum;

·seventh, the applicant fell to be sentenced as a serious sexual offender on Charge 2, making protection of the community the principal sentencing purpose pursuant to s 6D of the Sentencing Act1991;  and

·eighth, the sentence imposed on Charge 2 was a modest increase on the sentence imposed on the appellant previously for knowingly possessing child pornography contrary to s 70 of the Crimes Act 1958.

Ground of Appeal

1. The sole ground of appeal, as amended,[2] was:

The individual sentences on Charge 1 and Charge 2 and the total sentence imposed is manifestly excessive, having regard to:

a.  The quantum of images comprising Charge 1 and the length of time of the offending;

b.  The [Appellant’s] prospects for rehabilitation; and

c.  Cumulation between the charges.

[2]During the hearing, the appellant sought leave to amend Ground 2 by the insertion of the words ‘and Charge 2’ immediately after the words ‘Charge 1’.  There was no objection to that amendment which gave effect to what was obviously intended all along. 

1. Although this ground adverted to the appellant’s rehabilitative prospects, this particular was not pressed on appeal.  Given how quickly the appellant reoffended after completing a period of parole, it was understandable that the primary judge said in his sentencing remarks that it was ‘probably a bit on the optimistic side’ to describe the appellant’s prospects as ‘guarded’, as his plea counsel had done.[3]  Ultimately, and realistically, the appellant did not challenge that negative assessment of his rehabilitative prospects.[4]

   [3]R v Maine [2016] VCC 1992 [19] (‘Sentencing Reasons’).

   [4]At the leave application, where leave to appeal was granted on the ‘manifest excess’ ground, there was another proposed ground of appeal, namely that ‘the learned judge erred in his assessment of the [appellant’s] prospects of rehabilitation.’ Leave was refused on that proposed ground and the appellant did not seek, under s 315 (2) of the Criminal Procedure Act 2009, to renew his application for leave to appeal on that ground.

Circumstances of offending

1. There was an agreed summary of facts for the plea hearing which was helpfully summarised by the primary judge as follows:

Shortly stated, your internet activities came to the attention of an online undercover investigator who was a member of the Australian Federal Police.  The Australian Federal Police identified your IP address as having an association with files known to be, or to contain, child pornography.  Over a period of about a month in March and April of 2015 the AFP investigator connected to a device at your IP address on four occasions.  On three of the four occasions the AFP downloaded a file that contained child pornography. 

On 17 June 2015, a search warrant was executed at your home in Cranbourne where four devices capable of storing digital files were seized.  You were interviewed during the search and gave a series of answers apparently designed to deflect responsibility for what was later found on the seized devices—namely, files containing child pornography material.  A number of the answers were soon demonstrated to be simply untrue, and others sought to minimise your activities. 

The seized devices were subjected to a forensic examination, and the files containing child pornography were analysed according to the six-level scale …

The analysis of ’metadata’ revealed a good deal of activity concerning the names of a considerable number of deleted files that bore file names consistent with them containing child pornography material.  The analysis of metadata was relied upon only to give context to the files possessed, and to the use of the carriage service for access, that constitute the two charges.  You are not to be sentenced on the basis of what was revealed by the metadata analysis.

Charge 1 relates to the use of a carriage service between 2 October 2014 and 11 March 2015 (a date arrived at after extensive negotiations between the parties).  In that date range the number of images specifically accessed was 46, across Categories 1, 2, 3 and 4. 

Charge 2 relates to possession of the child pornography files located on the devices seized during the search …  The total number of files was 380, 102 of which were in Category 4, and eight of which were in Category 5.[5] 

[5]Sentencing Reasons [4]–[9].

1. As alluded to in the primary judge’s summary of the offending, Australian law enforcement classifies child pornography into six levels in accordance with the Australian National Victim Library/Child Exploitation Tracking System (ANVIL/CETS):

·     Level 1 – Images depicting under age persons nude or in erotic poses, with no sexual activity. 

·     Level 2 – Solo masturbation by a child or non-penetrative sex acts between children. 

·     Level 3 – Non-penetrative sexual activity between children and adults. 

·     Level 4 – Penetrative sexual activity between children only, or between children and adults. 

·     Level 5 – Sadism, bestiality or humiliation. 

·     Level 6 – Anime, cartoons, drawings etc depicting children engaged in sexual poses or activity. 

Antecedents

1. The appellant has the following prior convictions:

Date	Court	Offence	Sentence
01/04/2011	Melbourne County Court	Indecent Act With Child Under 16 Make/Produce Child Pornography Indecent Act With Child Under 16 Indecent Act With Child Under 16 Indecent Assault	TES 3 y4 m and 14d. NPP 1y 4m and 20d Registration under Sex Offenders Registration Act2004. The reporting period is life.
September 2010	Supreme Court – Court of Appeal	Knowingly possess child pornography	2y NPP 16 m
23/01/2009	Frankston Magistrates’ Court	Harass Witness	With conviction, fined $1500.00
15/08/2001	Frankston Magistrates’ Court	Breach Intervention Order (x 4)	Without conviction, adjourned to 15/08/2002 (complied with undertaking)

1. The offence of knowingly possess child pornography for which the Court of Appeal resentenced the appellant in 2010 was summarised by the Court of Appeal as follows:

[It] arose out of the discovery of child pornography on one of the computers seized from the applicant’s home.  Police found 494 image files, 1,442 compressed ‘rar’ and ‘zip’ files (containing multiple files) and 25 movie files, all of which depicted child pornography.

…

[It] involved the possession of a large number of pornographic images of children which had been collected over a considerable period.  Some of the images were of sickeningly cruel and violent abuse of young children.  The sentencing judge summarised their nature as follows:

It is not in dispute that the movies depict children, some as young as 12 months of age, involved in sexual activity with adults, with children including children involved in bondage and children in pain.  The images which were tendered include young children under 10 depicted in sexual acts with adult males, one a sexual act with an adolescent child, one with an object inserted in her vagina, a number showing a child who has an adult’s penis in his or her mouth.  A number of photographs show a child involved in a sexual act with a male.  One photograph depicts a child with her mouth covered in semen and one child who seemed to be distressed.

Sentencing Reasons

1. The primary judge said he had taken into account a number of matters which had been relied on by the defence.  First, the appellant’s plea of guilty.  It was not entered until after a contested committal but his Honour noted that the delay was due to negotiation between the prosecution and defence regarding the date range for Charge 1.  His Honour said that apart from its utilitarian value, the plea was ‘some evidence of remorse’.[6]  Second, his Honour took account of the appellant’s background and personal circumstances.  His Honour accepted that as a teenager the appellant had been sexually abused by his paternal aunt’s husband;  this occurred after the appellant’s father left his mother.  His Honour observed that although the appellant left school at the age of 14, he completed an apprenticeship as a fitter and turner and had a good and steady work history.  At the age of 36, the appellant married and there was one child, a daughter, from that relationship.  The appellant is estranged from his ex-wife and daughter because of his earlier offending.  At the time of sentencing, the appellant was in a new and supportive relationship.  There were references from his new partner, as well as from a church minister, and also from a church counsellor whom the appellant had been seeing regularly since being released from prison in 2013.  The references spoke of the appellant’s remorse for his offending. 

   [6]Sentencing Reasons [14].

1. The primary judge also made the following observations:

Of particular relevance is the fact that you have already served a term of imprisonment for possession of child pornography material.  I also note that your parole period was completed in mid-2014, only a few months before the commencement of the period to which Charge 1 relates.  Other than the prior offences shown in the criminal record, you have reached the age of 58 without any other significant criminal history. 

…

On your behalf it was submitted that your prospects of rehabilitation could be regarded as ‘guarded’.  In my view, given your mature age, and how promptly you returned to this form of offending after completion of a term of imprisonment and your parole period, ’guarded’ is probably a bit on the optimistic side. 

It was pointed out, and I accept, that compared with the volume of material considered in some of the cases to which I have been referred, the amount of material you were found in possession of was relatively modest, and the period to which Charge 1 relates covers only a little over five months.  I also accept that there is a degree of overlap between the offences though it was not submitted that there should not be cumulation here. 

Nevertheless, even at this level, the volume of material suggests that a great many children were damaged in the production of the material you accessed and possessed.  It was not suggested that the offending here could be regarded as other than serious, and I am satisfied that no sentencing disposition other than a term of imprisonment to be immediately served is appropriate in all the circumstances of your case. 

Sentencing principles for offending of this sort were not in dispute.  It was accepted that general deterrence must be given great weight in the sentencing consideration, and that specific deterrence is of particular relevance here because you have already served a term of imprisonment for similar offending.[7] 

[7]Sentencing Reasons [12], [19]–[22].

Submissions

1. In written submissions, the appellant submitted in relation to the sentence imposed on Charge 1 that it was manifestly excessive having regard to the number of images (‘only 46’) and duration of the offending period (five months).  Offending of this kind often involves thousands of images, such as in the cases of Garside,[8] Guest[9] and D’Alessandro.[10]It was submitted that the low number of images accessed by the appellant places his offending at the lowest end of the spectrum of seriousness.  Statistics compiled by the Sentencing Advisory Council of Victoria indicate that the median range of imprisonment for using a carriage service to access child pornography material is 1.17 years whilst the vast majority of offenders received sentences below three years.[11]  But in this case, despite the low number of images, a sentence of three years and six months’ imprisonment was imposed on Charge 1, which was significantly higher than the sentence imposed on Charge 2 which related to the possession of 380 images and videos.  Whilst some cumulation of the sentences was warranted, cumulation of 12 months of a sentence of 30 months on Charge 2 was excessive.

   [8]DPP (Cth) v Garside (2016) 50 VR 800 (‘Garside’).

   [9]DPP (Cth) v Guest [2014] VSCA 29.

   [10]DPP (Cth) v D’Alessandro (2010) 26 VR 477.

   [11]Sentencing Advisory Council, Use a carriage service for child pornography material: sentence quantum in the Higher Courts from July 2010 to June 2015 (31 March 2016) SACStat Higher Courts < _474_19_1_4.html>. 

1. In oral submissions, the appellant concentrated almost exclusively on the low number of images.  He relied on Dennis v The Queen[12] as a relevant comparator.  After a successful appeal against sentence, Dennis was resentenced by this Court as follows:

   [12][2017] VSCA 251 (‘Dennis’). 

Charge	Offence	Maximum	Sentence	Cumulation & Commencement
1	Use carriage service to access child pornography	15y	3y 3m NPP 1y 6m	Commence 6m after commencement of sentence on charge 3
2	Fail to comply with reporting obligations	5y	3m	Concurrent
3	Knowingly possess child pornography	5y	18m NPP 6m	Base
Total Effective Sentence (combined)		3y 9m
Non-parole period (combined)		2y

1. Dennis, who was in his mid-forties, had accessed 1,370 pornographic images and 217 videos over a period of approximately four and a half years between 2010 and 2014.  Charge 1 was a ‘rolled up’ charge and Dennis fell to be sentenced as a serious sexual offender on Charge 3.  Dennis had multiple prior convictions recorded between 1993 and 2009, including prior convictions for accessing and possessing child pornography, the most recent of which was in 2005 when he was sentenced in Tasmania to two years’ imprisonment for offences including two charges of possession of ‘child abuse product’. 

1. In written submissions, the respondent contended that the offending on Charge 1 was objectively very serious.  The maximum penalty for using a carriage service to access child pornography material is 15 years: it was increased from 10 to 15 years in 2010.[13]  Fourteen of the 46 child pornography images (30 per cent) were in categories 3 and 4.  The 31 category 1 images were not innocuous; they included close up images of children exposing their genitals.  Charge 1 was a ‘rolled up’ charge involving numerous separate instances of accessing child pornography over a period of approximately five months.  Charge 2 involved the possession of 380 child pornography items comprising 368 images and 12 videos.  Ninety-four images were category 4 and eight images were category 5.  Eight of the 12 videos were category 4.  The appellant fell to be sentenced as a serious sexual offender[14] on Charge 2, making protection of the community the principal sentencing purpose in determining the length of the sentence.  He stored the pornography on four devices.  The images featured ‘many’ individual child victims.  The metadata indicated that there were a significant number of deleted pornographic files.  The appellant lied to police in his record of interview.  General deterrence was a highly significant sentencing consideration, as was specific deterrence given the appellant’s prior convictions for similar offending and the fact that the current offending occurred just months after his parole period expired.  The reoffending also occurred despite the appellant’s completion of a sex offender program and the appellant receiving counselling during the five month offending period.  The appellant’s prospects of rehabilitation were less than ‘guarded’.[15]

   [13]Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 (Cth) sch 1 item 21.

   [14]See Sentencing Act 1991 s 6D.

   [15]Sentencing Reasons [19].

1. In oral submissions, the respondent submitted that the primary judge had expressly referred to the comparatively low number of images and the duration of the offending: proper regard had been paid to those matters.  Given the appellant’s prior convictions for similar offending, and the heightened importance of specific deterrence, the sentences imposed for the current offending were far from excessive: the appellant received two years in 2010 for possession of child pornography so the imposition of two and a half years’ imprisonment for the same offence was a modest increase.  The same could be said of the sentence on Charge 1, which was only 23 per cent of the maximum penalty.  The appellant’s reliance on the limited number of images was tempered by the agreed fact that he had deleted a considerable number of files which had names indicative of child pornography. 

Analysis

1. In Kumar v The Queen, Maxwell ACJ stated:

[T]he ground of manifest excess is very difficult to establish.  It involves demonstrating to the satisfaction of this Court that it was not reasonably open to the sentencing judge, taking all relevant matters into account, to impose the sentence in question on the particular offender for the particular offending.  That is a stringent test, founded on the basic principle that sentencing is for judges and magistrates at first instance and not for the Court of Appeal.  We intervene only where something is shown to have gone clearly or badly wrong.[16]

[16][2013] VSCA 191 [24].

1. In Garside, this Court said that:

The objective seriousness of [child pornography] offending is ordinarily determined by reference to the following factors:

(i) the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;

(ii)       the number of items or images possessed;

(iii)      whether the material is for the purpose of sale or further distribution;

(iv)      whether the offender will profit from the offence;

(v) in the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised;

(vi)      the length of time for which the pornographic material was possessed…[17]

[17]Garside (2016) 50 VR 800, 810 [25] (citations omitted).

1. Obviously, the number of images and duration of the offending are relevant considerations but an assessment of the objective seriousness of a child pornography offence is only part of the assessment that must be undertaken by a sentencing judge in determining an appropriate sentence.  An assessment of the offender’s prospects of rehabilitation and the weight to be given to specific deterrence is also important. 

1. The fact that the appellant’s current offending commenced so soon after the completion of his parole period, and after he had completed a sex offenders rehabilitation program, elevated the importance of specific deterrence.  The number of images that he downloaded from the internet and possessed was comparatively low but this was more than offset by the weight that had to be given to specific deterrence.  The individual sentences imposed and the order for cumulation resulted in a total effective sentence which was not greatly in excess of the sentences imposed on the appellant for previous similar offending. 

1. Although sentences are not precedents which must be followed unless distinguished, Dennis, which the appellant relied on as a relevant comparator, is readily distinguishable.  Approximately five years had passed between Dennis’ previous offending involving child pornography and his later offending.  Further, Dennis had not previously undergone a sexual offenders rehabilitation program[18] and Dennis was also able to rely on Verdins’ principles five and six.[19] 

   [18]Dennis [2017] VSCA 251 [28].

   [19]R v Verdins (2007) 16 VR 269, 275 [26].

1. It is not the case that something went ‘clearly or bad wrong’ in the sentencing of the appellant.  On the contrary, the individual sentences, total effective sentence and non-parole period were well within range.