Martin v R

[2014] NSWCCA 124

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

MARTIN, Geoffrey Keith v REGINA [2014] NSWCCA 124

Hearing dates:

26 June 2014

Decision date:

10 July 2014

Before:

Hoeben CJ at CL at [1]
Rothman J at [2]
Beech-Jones J at [3]

Decision:

(1) Application for leave to appeal allowed.

(2) Appeal allowed in part.

(3) Set aside the aggregate sentence imposed by the District Court on 30 August 2013 in respect of 24 offences under s 91H(2) of the Crimes Act 1900.

(4) In lieu thereof:

(a) impose an aggregate sentence of five years imprisonment to commence on 24 April 2013 and expire on 23 April 2018;

(b) pursuant to s 44(2A) of the Sentencing Act set a non-parole period of three years and four months;

(c) specify that the earliest date the applicant will be eligible to be released on parole is 23 August 2016;

(d) pursuant to s 53A(2)(b) of the Sentencing Act, indicate to the applicant and record that an aggregate sentence is imposed and that the sentences that would have been imposed for each offence under s 91H(2) of the Crimes Act 1900 had separate sentences been imposed instead of an aggregate sentence are those specified in the schedule hereto.

(5) Appeal otherwise dismissed.

Catchwords:

SENTENCING - possession of child abuse material - production and dissemination of child abuse material - aggregate sentence - totality - error in accumulation of "indicative" or notional sentence - whether indicative sentences for production and dissemination of fiction story by short message service (SMS) were manifestly excessive - re-sentencing.

Legislation Cited:

- Child Protection (Offenders Prohibition Orders) Act 2004 (NSW), s 5, s 13
- Crimes Act 1900 (NSW), s 91FB, s 91H, s 308F
- Crimes Amendment (Sexual Offences) Act 2008 (NSW), Sch 1
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12, s 44, s 53A, s 54A
- Criminal Procedure Act 1986 (NSW), Ch 1, Pt 3, Div 7

Cases Cited:

- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- Hili v R; Jones v R [2010] HCA 45; 242 CLR 520
- Khawaja v R [2014] NSWCCA 80
- Minehan v R [2010] NSWCCA 140; 201 A Crim R 243
- PD v R [2012] NSWCCA 242
- Pearce v R [1998] HCA 57; 194 CLR 610
- R v Booth [2009] NSWCCA 89
- R v Brown [2012] NSWCCA 199
- R v C; Ex parte Commonwealth DPP [2004] QCA 469
- R v Gent [2005] NSWCCA 370; 162 A Crim R 29
- R v Grover; Grover v R [2013] NSWCCA 149
- R v Jarrold [2010] NSWCCA 69
- R v Nykolyn [2012] NSWCCA 219
- SHR v R [2014] NSWCCA 94

Category:

Principal judgment

Parties:

Geoffrey Keith Martin (Applicant)
Crown (Respondent)

Representation:

Counsel:
G.T. Gillett (Applicant)
V. Lydiard (Respondent)
Solicitors:
Simon O'Toole Solicitor (Applicant)
S. Kavanagh, Solicitor for Public Prosecutions (Respondent)

File Number(s):

2013/023233

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2013-08-30 00:00:00

Before:

Haesler SC DCJ

File Number(s):

2013/023233

Judgment

1. HOEBEN CJ at CL: I agree with Beech-Jones J.

1. ROTHMAN J: I agree with Beech-Jones J.

1. BEECH-JONES J: This is an application for leave to appeal from two sentences imposed on the applicant by the District Court.

1. The first sentence was for a fixed term of nine months commencing on 24 January 2013, being the date of the applicant's arrest. This sentence expired on 24 October 2013. It was imposed in respect of one offence of contravening a child protection prohibition order contrary to s 13(1) of the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) (the "Child Protection Orders Act"). Such offences are prosecuted summarily. However in this case it was dealt with by the District Court as a "related offence" in accordance with Chapter 3, Part 3, Division 7 of the Criminal Procedure Act 1986 (NSW).

1. The second sentence was an aggregate sentence of six years imprisonment with a non-parole period of four years (Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Act"), s 53A). It was imposed in respect of 24 charges of possessing, producing or disseminating "child abuse material" contrary to s 91H(2) of the Crimes Act 1900 (NSW). The maximum penalty for an offence under s 91H(2) of the Crimes Act 1900 is imprisonment for ten years. The aggregate sentence commenced on 24 July 2013.

1. Section 53A(2) of the Sentencing Act required the sentencing judge to indicate to the applicant and otherwise record the sentences that would have been imposed for the individual offences had an aggregate sentence not been imposed. There is some dispute about what those indicative or notional sentences were. This is addressed below.

1. The total effective sentence was six and a half years imprisonment with a non-parole period of four and a half years.

Section 91H

1. In view of the complaints made on appeal it is necessary to set out s 91H. It relevantly provides:

"91H Production, dissemination or possession of child abuse material

(1) In this section:

disseminate child abuse material, includes:

(a) send, supply, exhibit, transmit or communicate it to another person, or

(b) make it available for access by another person, or

(c) enter into any agreement or arrangement to do so.

possess child abuse material includes, in relation to material in the form of data, being in possession or control of data (within the meaning of section 308F(2)).

produce child abuse material includes:

(a) film, photograph, print or otherwise make child abuse material, or

(b) alter or manipulate any image for the purpose of making child abuse material, or

(c) enter into any agreement or arrangement to do so.

(2) A person who produces, disseminates or possesses child abuse material is guilty of an offence.

Maximum penalty: imprisonment for 10 years."

1. Thus three forms of conduct are proscribed by s 91H(2) namely producing, disseminating or possessing so call "child abuse material". The phrase "child abuse material" is defined in s 91FB(1), which relevantly provides:

"91FB Child abuse material - meaning

(1) In this Division:

child abuse material means material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive:

(a) a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or

(b) a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or

(c) a person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or

(d) the private parts of a person who is, appears to be or is implied to be, a child."

Section 91FB(2) prescribes factors to be taken into account in determining whether a reasonable person would regard particular material as "offensive".

1. Section 91H has undergone significant legislative refinement over the years. It is only necessary to note that on 1 January 2009 the maximum penalty for such offences was increased from five years to ten years imprisonment (Crimes Amendment (Sexual Offences) Act 2008 (NSW) Sch 1 Item 27).

The Offences

1. The applicant is a convicted sex offender. On 22 November 2004 he was convicted in the Local Court of possessing child pornography. After an appeal to the District Court he was sentenced to a term of imprisonment of ten months, but that was suspended on condition that he enter into a bond under s 12 of the Sentencing Act.

1. On 8 May 2007 the applicant was convicted of two counts of possession of child pornography. He was sentenced to imprisonment for twelve months with a non-parole period of nine months. According to his Honour, while he was in gaol he met a "like minded fellow inmate". In anticipation that he might associate with that inmate upon his release, an order was made on 18 June 2009 under s 5 of the Child Protection Orders Act prohibiting the applicant from associating with or having contact with that inmate.

1. On 18 January 2013 the (now former) inmate was arrested on charges relating to his possession of child pornography. His mobile telephone was seized and searched. The search revealed that he and the applicant had been in contact. The investigating police contacted the applicant and seized his computer, a memory stick and his mobile phone.

1. A search of the computer revealed that it contained 35,318 picture files, 257 video files and 4,505 document. Ten thousand picture files were examined. One picture file said to contain child abuse material was selected. All the video files were examined. Six video files were selected. One hundred and twenty-three documents files were examined and eight were selected. The selected material was said to constitute child abuse material of varying levels of offensiveness. It included material depicting sexual activity involving children. This material formed the basis for one of the two offences under s 91H(2) of possession of child abuse material.

1. A search of the memory stick revealed 24,732 picture files, 66 video files, and 73 document files. Two thousand eight hundred and fifty picture files were examined, of which 399 files were selected. All 66 video files were examined. Forty-three were selected. Eighteen of the document files were examined and fifteen were selected. Again, the selected material was said to constitute child abuse material. The selected pictures and video files included material that depicted sexual activity involving children. The applicant's possession of this material was the basis of the other offence under s 91H(2) of possessing child abuse material.

1. The balance of the offences under s 91H(2) related to material that was seized from the applicant's mobile phone. A search of the phone revealed that between 8:54am on 18 January 2013 and 9:55am on 21 January 2013 the applicant "composed" and then sent to the (former) inmate five short message service ("SMS") messages. According to the statement of facts, each message constituted an "instalment of [a] ... fantasy involving the participation of a thirteen (13) year old boy ... in sex acts with the accused". Over the course of the instalments there was an escalation in the description of the sexual involvement between the applicant and the boy the subject of the story. The story included descriptions of sexual intercourse between the applicant and the boy. Each of the five instalments resulted in two offences, being an offence of producing "child abuse material" under s 91H(2) for the act of composing the instalment, and an offence of disseminating such material for the act of sending it.

1. From 11:42am on 21 January 2013 to 11:49am on 22 January 2013 the applicant "composed" and sent another story comprising six instalments to the (former) inmate. This story was of a similar genre to the previous story. It also included descriptions of sexual intercourse between the applicant and the boy. However, the boy the object of the story was eight years old when the story commenced. The applicant's conduct in "composing" the six instalments was the basis for the remaining six offences of producing child abuse material under s 91H(2). The applicant's conduct in sending the six instalments was the basis for the remaining six offences of disseminating child abuse material under s 91H(2).

1. Otherwise it is necessary to note that the charge under s 13(1) of the Child Protection Orders Act alleged that the applicant contravened the order noted in [12] by making "contact" with the former inmate in the period 15 January 2013 to 23 January 2013. This included the period the subject of the dissemination charges. The agreed statement of facts that was tendered to the sentencing judge identified the conduct of the applicant said to constitute that "contact" as being various communications between the two sex offenders. These communications included but were not restricted to the acts of dissemination the subject of eleven of the s 91H(2) offences. The relevant "contact" that was not the subject of the dissemination charges included the sending of two more works of "fiction" describing sexual acts between adult males and boys, as well as the communication of birthday salutations.

The sentencing judgment

1. In the sentencing judgment his Honour described the facts of the offences, as well as their maximum penalties. His Honour then addressed the sentencing task as follows.

1. First, his Honour addressed the necessity to accumulate and make concurrent the penalties imposed for each offence. I consider this aspect further when addressing ground 3 of the appeal.

1. Second, his Honour identified the need to deter others who might be minded to commit offences of this kind.

1. Third, his Honour addressed the seriousness of the possession offences having regard to the criteria considered in Minehan v R [2010] NSWCCA 140; 201 A Crim R 243 at [82] per Hulme J. His Honour noted that these offences involved material depicting "actual children" as opposed to cartoon images or the like. His Honour also noted that the applicant admitted that he had held a significant proportion of the images since the time that he was arrested for his earlier offences. His Honour noted that there was no evidence that this material was disseminated further by him.

1. Fourth, in relation to the production and dissemination offences under s 91H(2) his Honour considered that such communications were not as serious as those which involved the depiction of "actual children". Nevertheless, his Honour described the conduct as serious in that "even fantasies produce a distorted view of reality, in which sex with children is somehow seen as appropriate".

1. Fifth, his Honour noted that until his arrest in 2004 the applicant had lived an "apparently blameless life". He had worked for 25 years in one occupation. He clearly had difficulties with his sexuality and had come to see pornography, and in particular child pornography, as an "outlet for his sexuality". His Honour noted that the offender suffers from prostate cancer and required radiotherapy which his Honour found would make his time in gaol more difficult. His Honour also noted that the applicant was "subject to special management area protection" which would impose additional constraints upon him in gaol.

1. Sixth, his Honour noted that upon his release the applicant would have no ties in the community and no "pro-social friends or relatives who could provide some foil for his continuing obsessions". His Honour found the applicant took little personal responsibility for his own actions and had not yet accepted the wrongfulness of his own conduct.

1. Seventh, his Honour considered that the applicant's health and age provided a "modest reason for a finding of special circumstances", as did the need for him to have an extensive period to receive counselling and treatment while he was on parole. This finding of special circumstances is reflected in the proportion that the single non-parole period for the s 91H(2) offences bore to the overall aggregate sentence for those offences (66%) (cf Sentencing Act, s 44(2B)).

1. Eighth, his Honour recorded that the applicant's pleas of guilty warranted a "[reduction in] the overall sentence by 25% and the individual sentences by 25%". I take the reference to "individual sentences" to be the indicative or notional sentences that I have referred to in [6]. His Honour was correct to quantify any discount afforded because of the plea of guilty before indicating and recording the sentences that would have been imposed for the individual offences if an aggregate sentence had not been imposed (Khawaja v R [2014] NSWCCA 80 at [17] per R.S. Hulme AJ, Leeming JA and Button J agreeing).

1. Ninth, in relation to the 24 charges under s 91H(2) his Honour stated as follows:

"In relation to the remaining 24 matters [under s 91H(2)], so far as the two possession matters are concerned, counts 1 and 2, I indicate sentences of three years' imprisonment. So far as count 3 is concerned, turning now to the child abuse material, I indicate sentences of, for count 3 nine months' imprisonment, count 4 nine months' imprisonment, count 5 nine months' imprisonment, for counts 7 through to 13, 12 months' imprisonment. Moving now to the disseminate offences, counts 14, 15 and 16, nine months' imprisonment and counts 18 through to 24, 12 months' imprisonment.

I impose an aggregate sentence of six years' imprisonment, consisting of an aggregate non-parole period of four years, which will commence on 24 July 2013 and expire on 23 July 2017, on which date you will be eligible for consideration for release to parole. There will be an aggregate non-parole period of two years from that date. The total effective sentence is one of six and a half years with a non-parole period of two years." (emphasis added)

1. Understandably, this passage from his Honour's judgment has caused some confusion. I think it is most likely that this has arisen partly due to a transcription error and partly as a result of some uncertainty over the sequence numbering of the offences.

1. There is clearly an error in the reference in the last sentence to a "non-parole period of two years". This was a simple slip. Obviously it should be a reference to "a parole period" of two years. Further, offences 1 and 2 were not the possession matters relating to the computer and the memory stick. They were offences 1 and 24. In addition, this passage omits any reference to offences 6 and 14.

1. However, a certificate of conviction was prepared on the same date as reasons for sentence were provided. In the certificate his Honour recorded an indicative sentence of three years for each of the possession counts, nine months for the six produce and disseminate counts relating to the first three instalments of the story noted in [16], and twelve months for all the remaining produce and disseminate counts which concern the last two instalments of that story and the other story noted in [17]. I will treat that certificate as recording the correct indicative sentences.

1. The difference between nine and twelve months for some of these offences is readily explicable by reason of the escalation that occurs in the various instalments of the first story prepared by the applicant between 18 January 2013 and 21 January 2013. The indicative sentence of twelve months for each of the offences concerning the second story noted in [17] is explicable by the fact that the age of the boy the subject of the story when the instalments commence was eight years.

Ground 3: Sentencing Judge failed to have regard to the totality of the criminality of the applicant

1. It is convenient to deal with this ground first. The applicant's submissions in respect of this ground were as follows:

"The structure of the judge's sentence for all the offences of the applicant is difficult to understand it is submitted. For the offence of contacting [the former inmate] (which was part and parcel of the produce and disseminate child abuse charges) contrary to the Child Protection (Offenders Prohibition Orders) Act 2004 the Judge imposed a nine (9) month sentence commencing from 24th January 2013, the date the applicant went into custody. For the two offences of possess child abuse material the judge imposed a three (3) year sentence. The judge did not specify if those sentences were to be served concurrently but they must have been made partly cumulative with the possession of child abuse charges as he commenced the sentence date from 24th July 2013 for the possession charges. The judge then imposed sentences ranging from nine (9) months to one year for the produce and disseminate charges indicating an aggregate sentence of six (6) years imprisonment. The judge did not indicate in his reasons on sentence how he structured those sentences whether cumulative or concurrent with each other or for other offences but merely said 'The total effective sentence is one of six and half years with a non-parole period of two years', which was obviously inaccurate."

1. The complaint made in the last sentence of this submission has already been addressed at [30 ] above. Otherwise in part, this submission reveals a failure to appreciate that his Honour in fact imposed an aggregate sentence in respect of all of the offences under s 91H(2). Thus the submission repeatedly refers to his Honour having "imposed" particular sentences for the offences under s 91H(2) when, as I have already noted, s 53A(2)(b) of the Sentencing Act only required his Honour to indicate the sentences that would have been imposed for each offence had sentences been imposed. In particular, that requirement did not require his Honour to specify start and end dates for each such sentence (R v Nykolyn [2012] NSWCCA 219 at [60] per R.A. Hulme J ("Nykolyn")).

1. Nevertheless, to the extent the applicant complains about the manner of the application of the totality principle, he is on surer ground. In Nykolyn at [58], R.A. Hulme J discussed the significance of the requirement in s 53A(2)(b) that the sentencing judgement record the sentences that would have been imposed for each of the individual offences had an aggregate sentence not been imposed. His Honour stated:

"The importance of proper compliance with the requirement to indicate the separate sentences that would have been imposed arises for at least four reasons. First, it assists a sentencing judge in application of the totality principle, an important factor in the assessment of the aggregate sentence to be imposed. Secondly, it exposes for appellate review how it is that the aggregate sentence was arrived at: see R v Brown at [17] per Grove AJ. Thirdly, it allows victims of crime and the public at large to understand the level of seriousness with which a court has regarded an individual offence. Fourthly, it assists this Court to assess an appropriate new aggregate sentence if one or some of the underlying convictions are quashed on appeal." (emphasis added)

1. In R v Grover; Grover v R [2013] NSWCCA 149 at [60] to [66], Hoeben CJ at CL upheld a ground of appeal that contended that the sentencing judge had erred in their approach to considerations of accumulation and concurrency when imposing an aggregate sentence. Similarly, in R v Brown [2012] NSWCCA 199 ("Brown") at [35] Grove AJ observed:

"Of course, in the exercise of power to impose an aggregate sentence, accumulation would in a sense be notional but an examination of the potentials for accumulation can cast light upon whether the aggregate sentence represents a sound exercise of sentencing discretion."

1. This passage from Brown reflects the reality that in some, perhaps many, cases the removal of the requirement that the sentencing judge specify the beginning and end dates for each indicative or notional sentence may make it more difficult for an offender to demonstrate that there was some error in the manner in which principles relevant to concurrency and accumulation of sentences were applied. It is unnecessary to consider that further because in this case his Honour addressed those principles and their application in the following passage in the sentencing judgment:

"The contravene child protection prohibition order offence is itself a serious example of its type. It calls for a separate and discrete punishment. The three categories of offences also call for some measure of separate and discrete punishment. The produce child abuse material and disseminate child abuse material contain many common elements. The offender is not to be punished twice for those common elements, see Pearce (1998) 194 CLR 610 at [49]. But while many of the elements of the offences overlap, the offences were not identical. Some measure of independent discrete punishment is required for the dissemination offences: see Fulop v R [2009] VCSA 296.

I must consider the questions of accumulation and concurrence. As far as this child abuse material is concerned, the elements of each offence can be comprehended one by the other. Those matters should be made completely concurrent. The same principles which were set out by the Court of Criminal Appeal in Cahyadi v R [2007] NSWCCA 1 mean that the produce child abuse material and the disseminate child abuse material should be dealt with within each group, concurrently, but, there must be a measure of accumulation as far as the three groups of offences and the s166 matter are concerned. This is [in] order to take account of the total criminality involved in the offences before me." (emphasis in italics added)

1. The reference to the "three categories of offences" in the opening part of this extract appears to be to the three species of offences under s 91H(2), i.e. the two offences involving possession of child abuse material, the eleven offences involving production of child abuse material, and the eleven offences involving disseminate child abuse material. Although it is unclear, it seems likely that the reference to "this child abuse material" in this extract is a transcription error and should be a reference to "the possess child abuse material", i.e. the two possession offences. Thus, his Honour intended the notional sentences for the possession charges should be "completely concurrent". This means that the overall contribution of the those two offences to the total aggregate sentence of six years was three years. (If it is not a typographical error, then the passage makes no sense as all 24 charges concerned "child abuse material".)

1. His Honour then referred to the "produce child abuse material and the disseminate child abuse material [being] ... dealt with within each group concurrently", but allowing for a measure of accumulation as far as the "three groups of offences ... are concerned". The reference to "group" in this part of the sentencing judgment appears to be a reference to a grouping of the produce child abuse offences together and the disseminate child abuse material offences together. This corresponds with the "three categories of offences" referred to in the opening part of the above extract. If the indicative sentences for the produce child abuse offences were all treated as concurrent as this passage suggests, then collectively they lead to a period in custody of one year. The same applies if the disseminate child abuse offences are grouped together.

1. If this construction of the sentencing judgment is correct, then an accumulation of the indicative or notional sentences for each "group" of offences totals only five years. Yet the overall sentence imposed was one of six years. The only possible means by which an aggregate sentence of six years for the 24 charges could be achieved in a manner which is arguably consistent with the above extract is if his Honour meant to group each individual offence of produce child abuse material with an offence of disseminate child abuse material that relates to the same instalment of the stories noted in [16] to [17] above, with the notional sentence for that pair of offences to run concurrently and then each such "group" accumulated. However, the difficulty with such a reading of the above extract is that it involves treating the words "group" and "categories" of offences in the extract at [37] as conveying different meanings.

1. In my view the length of the aggregate sentence is not capable of being supported by any reasonable construction of that part of the sentencing judgement which deals with accumulation and concurrency. This is sufficient to uphold this ground of appeal so far as it concerns the aggregate sentence.

1. Finally, I note that the applicant's submission extracted above at [33] appears to complain about so much of the sentence for the offence under s 13(1) of the Child Protection Orders Act that was not made concurrent with the sentence for the offences under s 91H(2). The substance of the complaint appears to be that substantial concurrency was warranted because the conduct the subject of the dissemination charges appears to be the bulk of the conduct said to contravene the Child Protection Orders Act.

1. For the reasons noted above (at [18]), this complaint has substance. There was some further element of double punishment in that the fact that the relevant recipient of the disseminated material was a paedophile whom the applicant was banned from contacting was considered to be an aggravating feature of the dissemination. A strict approach of the passage in Pearce v R [1998] HCA 57; 194 CLR 610 ("Pearce") at [49] might warrant a reduction in the sentence for this offence on this account. However this was not argued and it would be futile as the sentence has now expired. The better course is to backdate the sentence for the offences under s 91H(2) for a further period of three months to achieve greater concurrency with the s 13(1) offence. The three months imprisonment that is not concurrent will reflect the fact that there was some contact between the applicant and the former inmate during the period of the offence under s 13(1) of the Child Protection Orders Act that was not also the subject of the dissemination charges under s 91H(2).

1. Before considering the appropriate sentence to impose for the 24 offences under s 91H(2), however, it is first necessary to consider the challenge to the individual indicative or notional sentences.

Grounds 1 and 2: Sentences manifestly excessive and "out of proportion"

1. Ground 1 of the appeal contends that the sentences were manifestly excessive. Ground 2 contends that the "sentences imposed ... for the offences of produce and disseminate child abuse material were out of all proportion to the criminality of the applicant". It is appropriate to deal with both grounds together. The written submissions that support these grounds do not attack the sentence imposed for the offence under s 13(1) of the Child Protection Orders Act.

1. As framed, ground 2 and the written submissions that support both grounds repeat the misconception underlying the submission in relation to ground 3 extracted above (at [33]), namely that separate sentences were imposed for the offences under s 91H(2) rather than one aggregate sentence. Allowing for that misconception, I will treat the submissions under this ground as directed towards the indicative or notional sentences.

1. In PD v R [2012] NSWCCA 242 ("PD") at [44] I noted that an indicative sentence is not itself amenable to appeal but it may be suggestive of an error in the aggregate sentence that is imposed (Basten JA and Hall J agreeing). If an aggregate sentence is challenged by reference to an indicative sentence, the materiality of the error in the latter to the aggregate sentence needs to be demonstrated (PD id; see also SHR v R [2014] NSWCCA 94 at [40] to [42] per Fullerton J). However, in this case I have already concluded that the aggregate sentence is affected by error. It will need to be reconsidered. It follows that the applicant's challenges to the indicative sentences can be considered simpliciter without the necessity of considering their materiality to the aggregate sentence.

1. Part of the applicant's attack on the length of the various indicative sentences for the 24 offences under s 91H(2) involved an attempt to employ the use of Judicial Commission statistics. It was pointed out that during the period 2009 to 2012 only one offender out of thirty six received a six year sentence for such an offence (being the aggregate sentence imposed here). The statistics supporting this submission were not provided to this Court so that it could consider what those statistics might reveal, if anything, about the indicative sentences. However the fact that there is only a sample of thirty six cases is not a good start. Further, it is not known how many of the sample were repeat offenders such as this applicant. Generally, the unelaborated submission of the applicant on this point highlights the difficulty in relying on sentencing statistics noted in Hili v R; Jones v R [2010] HCA 45; 242 CLR 520 at [54] to [55].

1. As noted, the indicative sentences for each of the offences of possessing child abuse material was 3 years imprisonment. Allowing for the 25% discount that his Honour notionally applied, the sentence equates to one of four years imprisonment if it had been imposed following a trial.

1. I have already described the material's offensive nature. The social evils sought to be address by provisions such as s 91H(2) have been discussed in a number of cases (see for example R v Gent [2005] NSWCCA 370; 162 A Crim R 29; R v C; Ex parte Commonwealth DPP [2004] QCA 469). In R v Booth [2009] NSWCCA 89 ("Booth") at [40] to [41] Simpson J noted in relation to the possession limb of the predecessor to s 91H(2):

"[40] I would add my further endorsement to that view. It seems to me that possession of child pornography is an offence which is particularly one to which notions of general deterrence apply. Possession of child pornography is a callous and predatory crime.

[41] In sentencing for such a crime, it is well to bear firmly in mind that the material in question cannot come into existence without exploitation and abuse of children somewhere in the world. Often this is in underdeveloped or disadvantaged countries that lack the resources to provide adequate child protection mechanisms. The damage done to the children may be, and undoubtedly often is, profound. Those who make use of the product feed upon that exploitation and abuse, and upon the poverty of the children the subject of the material."

1. Not surprisingly, general deterrence is seen as particularly important with such charges (see Booth at [39]). Further in this case specific deterrence was a very significant factor. The applicant had been sentenced twice previously for possession of such material. He has been imprisoned for doing so. Nevertheless it transpired that he had been in possession of some of the offending material since at least the time he was arrested for his second offence.

1. In my view, having regard to the maximum penalty for the offence, the nature of the material that was possessed, the length of time that much of it was in the applicant's possession and the strong need to specifically deter him, a notional indicative sentence of four years prior to any discount for his plea in respect of the charges of possessing child abuse material was not manifestly excessive.

1. The balance of the points made on behalf of the applicant under these grounds concerns the indicative sentences for producing and disseminating the two stories that I have noted in [16] to [17] above. Some of the points were predicated on the assumption that three years of the six year aggregate sentence were referable to these offences. I have already addressed that contention and, to an extent, upheld it. It was also said that the sending of the eleven instalments covering the two stories was one course of illegal conduct. This is an argument I will return to when addressing the re-exercise of the sentencing discretion.

1. However, the applicant also contended that the "fantasy" nature of the material meant that its production and dissemination was less serious than the material depicting sexual activity involving actual children, and the fact that it was it was only a communication between two persons via SMS meant that "other people" would not be likely to view it.

1. In relation to the former contention it was one that his Honour accepted in this case although his Honour noted that a different approach was adopted by Howie J in R v Jarrold [2010] NSWCCA 69 at [53]. I see no error in his Honour's characterisation of the material in this case. However each case depends on its facts. There are undoubtedly situations in which the production and dissemination of material that does not involve the depiction of real children can still constitute an extremely serious breach of s 91H(2).

1. The contention that the distribution was only of a limited nature does not advance the applicant's case. The distribution was via electronic means and there was the obvious potential for its recipient to disseminate it widely. As the applicant acknowledges, it was sent to a known paedophile and it had the obvious purpose of stimulating the sender and recipient's sexual interest in boys. It had the potential to be re-transmitted to other "like minded persons" and thus encourage a predilection that these provisions are designed to address and eliminate. The potential harm that can be caused from the dissemination of such material to known paedophiles is manifest. Although the instalments were sent by SMS, they were reasonably lengthy. The applicant must have spent some time composing them. In these circumstances I do not discern any error in the indicative sentences adopted by his Honour for the production and dissemination offences under s 91H(2).

1. Accordingly, I reject grounds 1 and 2.

Resentencing on the s 91H(2) accounts

1. The only basis of challenge to the sentence for the offence under s 13(1) of the Child Protection Orders Act has been addressed at [43] above. Otherwise the challenge to the imposition of an aggregate sentence succeeds and the applicant will need to be re-sentenced. I propose to do so based on the indicative or notional sentences provided by his Honour.

1. No further evidentiary material was led before this Court for its use if the discretion to re-sentence was exercised. Accordingly, I also propose to re-sentence the applicant on the basis of the facts as found by his Honour as summarised above and by imposing an aggregate sentence. However the question arises as to how the totality principle should be applied to the indicative or notional sentences.

1. The relevant principle was stated by Howie J in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 ("Cahyadi") at [27] (with whom Adams and Price JJ agreed), namely:

"[27] In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."

1. The better view of the extract from the sentencing judgement set out at [37] above is that the sentencing judge considered that an application of the above principle from Cahyadi had the result that the two indicative sentences for possession of child abuse material should be "completely concurrent". While the possession of two different forms of electronic storage devices constituted two different acts of possession (Crimes Act 1900, s 308F(2)), I nevertheless agree. Presumably the relevant images, video files and documents could have been stored on either device. In terms of criminality it does not appear to matter much whether the applicant stored them on one device or two.

1. His Honour also considered that the production and dissemination offences also contained "many common elements" and cited Pearce at [49]. I respectfully disagree. That part of Pearce was concerned with a person who faced two charges which had a "common element", namely the infliction of grievous bodily harm. The commonality could not be addressed by making sentences concurrent but was instead addressed by adjusting the individual sentence for one of the offences to avoid double punishment (Pearce id). It follows that if there were truly common elements in the production and dissemination offences then the indicative or notional sentences stated by his Honour for one set of these offences would be incorrect.

1. However the elements of the possession and dissemination charges had no commonality. They were logically distinct. However an application of the principles in Cahyadi would mean that the notional sentence for each corresponding pair of production and dissemination charges should be mostly but not completely concurrent. There is a difference between producing this material for one's self and disseminating it to others, especially where that latter step involves a loss of control over its availability.

1. A further question is how to treat the production and distribution charges concerning the two stories composed by the applicant. As noted the applicant contends that it was the one course of conduct and thus they should all be treated as concurrent. I do not agree for two reasons. The first is that which I have just noted, namely that there is a distinction between producing such material and disseminating it. The second is the fact that two separate stories were composed and sent sequentially. Having regard to those two factors I propose to treat each set of production and distribution offences pertaining to a particular story as a separate group of offences, with each such group having a fifteen month span.

1. If the three reformulated groups of offences that I have identified were fully accumulated then the aggregate sentence would be five and half years. Bearing in mind the principle stated in Cahyadi, I propose an aggregate sentence of five years. Allowing the applicant the benefit of the finding of special circumstances made by his Honour and the same proportional variation of the maximum ratio specified in s 44(2B) of the Sentencing Act, this results in a non-parole period of three years and four months for the offences under s 91H(2).

1. There remains the question of concurrency between this sentence and the sentence for the offence under s 13(1) of the Child Protection Orders Act. For the reasons stated above at [43], the aggregate sentence should be backdated by a further three months so that it is taken to have commenced on 24 April 2013.

1. Accordingly I propose the following orders:

(1)   Application for leave to appeal allowed.

(2)   Appeal allowed in part.

(3) Set aside the aggregate sentence imposed by the District Court on 30 August 2013 in respect of 24 offences under s 91H(2) of the Crimes Act 1900.

(4)   In lieu thereof:

(a)   impose an aggregate sentence of five years imprisonment to commence on 24 April 2013 and expire on 23 April 2018;

(b) pursuant to s 44(2A) of the Sentencing Act set a non-parole period of three years and four months;

(c)   specify that the earliest date the applicant will be eligible to be released on parole is 23 August 2016;

(d) pursuant to s 53A(2)(b) of the Sentencing Act, indicate to the applicant and record that an aggregate sentence is imposed and that the sentences that would have been imposed for each offence under s 91H(2) of the Crimes Act 1900 had separate sentences been imposed instead of an aggregate sentence are those specified in the schedule hereto.

(5)   Appeal otherwise dismissed.

Schedule

For each of counts 2 and count 25 (possession) - 3 years.

For each of counts 3, 5 and 7 (produce) - 9 months.

For each of counts 4,6 and 8 (disseminate) - 9 months.

For each of counts 9,11,13,15,17, 19, 21 and 23 (produce) - 12 months.

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Decision last updated: 10 July 2014