Merrill (a Pseudonym) v the Queen
[2017] VSCA 189
•20 July 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0050
| ELLIOTT MERRILL (A PSEUDONYM)[1] |
| v |
| THE QUEEN |
[1]To ensure that there is no possibility of identification of the applicant, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE (DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009)
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| JUDGE: | SANTAMARIA JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 20 July 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 189 |
| JUDGMENT APPEALED FROM: | DPP (Cth) v Merrill [2016] VCC 1215 (Judge Lawson) |
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CRIMINAL LAW – Application for leave to appeal against sentence – One charge of engaging in sexual intercourse with child outside Australia – One charge of engaging in sexual activity with child outside Australia – One charge of producing child pornography material outside Australia – One charge of knowingly possessing child pornography – Sentence of 5 years and 3 months’ imprisonment – Whether sentences imposed on two charges manifestly excessive – Criminal Code Act 1995 (Cth) ss 272.8, 272.9 – Assheton v The Queen (2002) 132 A Crim R 237, R v ONA (2009) 24 VR 197, R v Wicks [2005] NSWCCA 409 considered – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| No appearances |
SANTAMARIA JA:
The applicant, now aged 61, pleaded guilty to one charge of engaging in sexual intercourse with a child outside Australia, one charge of engaging in sexual activity with a child outside Australia, one charge of producing child pornography material outside Australia and one charge of knowingly possessing child pornography.
The applicant was sentenced in the County Court as follows:
Charge No. Offence Maximum penalty Sentence Commencement 1 Engaging in sexual intercourse with a child outside Australia [Criminal Code (Cth) s 272.8(1)] 20 years’ imprisonment 5 years’ imprisonment 18 November 2016 2 Engaging in sexual activity with a child outside Australia [Criminal Code (Cth) s 272.9(1)] 15 years’ imprisonment 3 years’ imprisonment 18 November 2016 3 Producing child pornography material outside Australia [Criminal Code (Cth) s 273.5(1)(a)(ii)] 15 years’ imprisonment 6 months’ imprisonment 18 November 2016 4 Knowingly possessing child pornography [Crimes Act 1958 s 70(1)] 5 years’ imprisonment 6 months’ imprisonment 18 August 2016 Total effective sentence: 5 years and 3 months’ imprisonment Non-parole period: 3 years’ imprisonment Pre-sentence detention declaration: 56 days Section 6AAA Statement 7 years’ imprisonment with a non-parole period of 5 years’ imprisonment Other relevant orders The total effective sentence imposed on the Commonwealth charges was 5 years’ imprisonment with a non-parole period of 2 years and 9 months’ imprisonment.
The total effective sentence imposed on the State charges was 6 months’ imprisonment.
The applicant was required to comply with the reporting obligations of the Sex Offenders Registration Act 2004 for life.
The applicant now seeks leave to appeal his sentence.
Circumstances of the offending
On 16 November 2015, the applicant arrived at Melbourne International Airport on a flight from Kuala Lumpur.
On his arrival, the applicant was apprehended by officers from the Australian Border Force (‘ABF’). Following a baggage search, the ABF officers located a number of images of a naked young Asian female on the applicant’s iPhone.
When asked about the images of the young Asian female, the applicant said that they were images of his girlfriend, La Ngọc Chung (‘Chung’), who was born on 12 November 1999.[2] The applicant told the ABF officers that he had met Chung on 17 July 2014 and had travelled to see her five times over the preceding 18 months. He also told the ABF officers that he had been intimate with Chung since January 2015.
[2]See DPP (Cth) v Merrill [2016] VCC 1215 [4] (‘Sentencing remarks’). The Sentencing remarks describe La Ngọc Chung (a pseudonym) as the victim in this case.
Later that day, members of the Australian Federal Police and the Victoria Police Joint Anti Child Exploitation Team arrived and examined the images on the applicant’s iPhone. The members of the Victoria Police Joint Anti Child Exploitation Team determined that those images constituted child pornography material within the meaning of s 473.1 of the Criminal CodeAct 1995 (Cth).
The applicant then agreed to take part in a digitally recorded interview. During that interview, he made full admissions concerning the nature of his relationship with Chung. He said that he had met Chung in Ho Chi Minh City on 17 July 2014, outside a massage parlour where she was working. Initially, the relationship was one of friendship, not romance; he paid her rent and bought her a laptop and a mobile phone. Over time, they maintained communication through Facebook. At first, the applicant believed that Chung was aged 19; so much was recorded on her Facebook page. However, the applicant told the police that he discovered her true age in November 2014, when she had turned 15.
The applicant had visited Chung numerous times. He told police that, in December 2014, when he and Chung stayed together in a hotel for the first time, she made sexual advances. At first, the applicant resisted those advances. But, by January 2015, the relationship had become sexual. Chung changed her name on her Facebook profile to ‘La Merrill’, and her relationship status was recorded as ‘engaged’. The applicant told the police that he and Chung had spoken about getting married.
The applicant’s offending came to the attention of the authorities when Chung lodged an application for a tourist visa to visit Australia, noting that she was in a relationship with the applicant. The applicant told police that he and Chung planned for her to travel to Australia in December 2015 so that they could holiday together.
The naked photos of Chung that were found on the applicant’s iPhone were taken by the applicant in his hotel room in Phuket in October 2015, some two weeks prior to Chung’s 16th birthday.
During the interview, the applicant told the police that he did not consider that the photos constituted child pornography because he saw Chung as his future wife. The applicant denied that he had viewed or downloaded child pornography. He admitted that he had sent Chung photos of himself naked on one or two occasions. He also admitted that he had done the wrong thing by having sex with her.
The applicant was charged by police and later bailed. A search warrant was executed at his home. During the search, various items were located, examined and seized.
A forensic examination of the applicant’s iPhone, laptop and a USB stick confirmed that, in addition to the images of Chung that had already been located on the applicant’s iPhone, there were a total of 61 files determined to be child pornography. These files revealed images and videos of girls aged between eight and 16. Each of the files was classified by police according to the Australian National Victim Image Library (‘ANVIL’) scale in the following categories:[3]
[3]Sentencing remarks [17]–[18]. The sentencing judge viewed a sample of the material and agreed with the categorisation of the various images.
Cat 1 Cat 2 Cat 3 Cat 4 Cat 5 Total Images 49 1 6 2 0 58 Videos 0 0 0 3 0 3 Total 49 1 6 5 0 61
The examination of the files revealed 61 unique images, the victims being girls aged between eight and 16.
The table shows that the majority of the images which were examined fell within category 1 of the ANVIL scale. Images in this category depict children aged approximately between 10 and 16 years posing naked or partially clothed in a sexually explicit manner, many with a focus on the genitals.[4]
[4]Ibid [20]–[21]. The sentencing judge observed that the sample of the images which she viewed in category 1 primarily consisted of young victims posing partially clothed in a sexually explicit manner without a particular focus on the genitals, but there were some that did focus on the genitals.
Chung discussed this matter with police in Vietnam. She confirmed that she had known the applicant since July 2014. When the applicant visited her, he would hire accommodation and they would stay together. She said that she initiated the sexual relationship with the applicant and that they had sex often on the trips which they took together.
Chung also confirmed that the photos which were found on the applicant’s iPhone on 16 November 2015 were photos that the applicant had taken of her on his iPhone and iPad while they were staying together in a hotel in Thailand.
In a victim impact statement dated 16 June 2016, filed in the course of the plea hearing, Chung said that the offending did not have any emotional, psychological or physical impact on her. She said that, prior to meeting the applicant, she was depressed, suicidal and had no motivation to live. She described her situation as having changed for the better following her relationship with the applicant; the applicant had encouraged and helped her to strive to be a better person. She described the applicant as being the motivation for her continuing with her life. She felt very sad and terrible about what had happened as a result of the charges being laid. She said that she took responsibility for what had occurred.
Personal circumstances of the applicant
The applicant was aged 59 at the time of the offending. He had no prior criminal history. His parents were Ukrainian refugees who had settled in Australia after the Second World War. Both of his parents are deceased. He was one of five children, and two of his siblings are deceased. He has little contact with his surviving siblings. He has two adult sons from a previous de facto relationship.
The sentencing judge observed that the applicant had an excellent work history. The applicant completed his secondary education, matriculated and then completed a course in Civil Detailed Drafting. In 1976, he started working at the Victorian Government Titles Office, where he remained for most of his career.
The applicant is in poor physical health. He has documented lung problems. He was diagnosed with sarcoidosis in 2008. He also suffers from coronary artery disease.
The applicant is also in a parlous state of mental health. He has had a history of anxiety and depression. His general practitioner had referred him to Mr Bernard Healey, a clinical psychologist, under a mental health care plan for the purpose of treatment for depression, anxiety and social issues and also to enable a psychological report to be prepared for the sentencing judge. The sentencing judge also received a report dated 19 June 2016 prepared by Mr Ian Joblin, a forensic psychologist, and a report dated 10 August 2016 prepared by Mr Michael Daffern, a principal consultant psychologist at the Victoria Institute of Forensic Mental Health.
Sentencing remarks
The sentencing judge summarised the contents of the victim impact statement filed by Chung[5] and said:
[C]onsent is not a defence to the offence of engaging in sexual intercourse with a child outside Australia or engaging in sexual activity (other than sexual intercourse) with a child outside Australia.
The fact that the victim purports to accept responsibility for what has occurred is not a relevant mitigating factor. This is based on the absolute prohibition on sexual activity with a child being founded on a presumption of harm. The prohibition is intended to protect children from the harm presumed to be caused by premature sexual activity, that is, activity before the age when a child can give meaningful consent.
The Court of Appeal in the matter of Clarkson v R; EJA v R concluded that a child’s consent can never, of itself, be a mitigating factor. Proof that the child consented is the beginning, rather than the end, of the sentencing court’s inquiries. In assessing the gravity of the offence and the offender’s culpability, it is said that the court’s attention will be directed not at consent as such but at the circumstances in which consent came to be given.[6]
[5]Ibid [26].
[6]Ibid [27]–[29] (citation omitted).
The sentencing judge concluded:
On the basis of all the material before the court, I am satisfied that you were in an intimate relationship of a sexual kind with the victim. There was a significant age difference and/or power imbalance between yourself and the victim. I accept that initially the relationship was founded on genuine affection rather than predatory behaviour but nonetheless I still consider the fact that you went ahead and had a sexual relationship with the victim knowing that she was underage and knowing that such actions were wrong means that your culpability is high. You were an older and more mature man who should have been cognisant of the potential for harm upon the child as a consequence of your illicit sexual relationship. The victim was only 14 and 2 months at the time of the commencement of the sexual activity and you were almost 60.[7]
[7]Ibid [30].
The sentencing judge, referring to the decision in Clarkson v The Queen,[8] rejected the applicant’s submission that, in the circumstances of the case, he had rebutted the presumption of harm. She said:
In the joint judgment in Clarkson, it was recognised that an offender could rebut the presumption of harm but it is difficult to do so, and to the extent that such a submission relies upon the consensual nature of the sexual activity, the court said it would draw on its assessment of the circumstances in which the consent came to be given, in particular the age difference between the offender and the victim, the nature of the relationship between them and the circumstances in which the sexual activity was initiated.
I quote from that judgment. They say: ‘We think it likely that such an attempt at rebutting the presumption would succeed only in very limited circumstances. For obvious reasons, a statement from the child victim would be unlikely to satisfy the court that no harm had been caused or that there would be no long-term consequences. Independent expert evidence to that effect would ordinarily be essential. Moreover, it would only be in a very clear case that such evidence would warrant a material reduction in sentence. The task of a sentencing court is difficult enough without having to deal with gradations of harm to a child victim, particularly when much of the assessment of harm involves predicting long-term consequences.’
Those principles apply here. I do not consider that the victim impact statement on its own in this case displaces the presumption of harm to the victim. I have approached this matter on the basis that the victim is a vulnerable child who had a history of sexual abuse and associated mental health issues, who was highly sexualised, working in a massage parlour from a very young age. I consider her to be a vulnerable victim who has been exploited by your actions. I do not consider that the presumption of harm has been rebutted.[9]
[8](2011) 32 VR 361.
[9]Sentencing remarks [64]–[66] (citation omitted).
In respect of the applicant’s mental health, the sentencing judge had regard to the contents of a report dated 29 March 2016 from Mr Healey, in addition to the report from Mr Joblin and the report from Mr Daffern.[10]
[10]Ibid [33], [50].
Mr Healey regularly reviewed the applicant between 9 December 2015 and 29 March 2016. Mr Healey’s report set out the following findings:
(a) in the past, the applicant had experienced two failed significant intimate relationships;[11]
[11]Ibid [38].
(b) the applicant was a passive and naïve man who was subservient in his previous relationships and, when those relationships broke down, became even more submissive and less assertive for the sake of retaining a relationship with his two sons;[12]
[12]Ibid.
(c) the applicant was anxious, nervous and isolated;[13]
[13]Ibid [40].
(d) based on a Static-99 assessment tool for adult male sexual offenders, the applicant is at a low risk of further sexual offending – a finding that was based on the nature of the offending for which he had been charged, bearing in mind that there were no prior offences of this nature and no offences since;[14]
(e) throughout his treatment, the applicant was particularly self-berating and ashamed of his conduct;[15] and
(f) the applicant acknowledged the wrongfulness of his conduct and understood that he faced the prospect of loss of liberty, which has caused him a great of deal of anxiety and concern about his ability to cope within the prison system given his significant health problems and need for continuing specialist care.[16]
[14]Ibid.
[15]Ibid [41].
[16]Ibid.
Mr Joblin’s report set out the following findings:
(a) the applicant had initially presented with serious psychological issues;[17]
[17]Ibid [42].
(b) the applicant had a gross tremor and high level of anxiety, leading Mr Joblin to believe that the applicant was clinically depressed;[18]
[18]Ibid.
(c) the applicant’s strong attraction to the victim was totally consistent with his disordered personality, and he had a pervasive pattern of social and interpersonal deficits;[19]
[19]Ibid.
(d) the applicant was a man with few close friends and suffered from excessive social anxiety, which was relieved when he went overseas and particularly when he was with Chung;[20]
[20]Ibid.
(e) the present offending has a strong psychological component, and the applicant’s relationship with Chung became meaningful to him because of the breakdown of his past relationships and his feelings of rejection – an issue which is pivotal and which cannot be underestimated in terms of the impact it has had on him;[21]
(f) it was considered that incarceration would be ‘totally destructive’ to the applicant;[22] and
(g) the applicant was gratified by the relationship which he had formed, and the end of that relationship had been extremely distressing for him due to his placing a great deal of emotional involvement into it, which was consistent with his personality deficits.[23]
[21]Ibid [43].
[22]Ibid [44].
[23]Ibid [45].
The sentencing judge noted the applicant’s fragile psychological condition and took that into account as providing a context for the offending.[24]
[24]Ibid [46].
Mr Daffern’s report dealt extensively with the applicant’s history of depression over the past 15 years, for which he received medical treatment. The report:
(a) postulated that it was possible that the applicant was depressed at the time of the offending and that it was likely that his mood improved when he spent time with Chung or thought about her;[25]
[25]Ibid [47].
(b) considered that the depression, whilst operative at the time, did not have a significant direct impact on the applicant’s mental capacity, but his low mood may well have led to him seeking intimacy and sexual satisfaction;[26]
[26]Ibid.
(c) considered that the applicant’s depression may result in a term of imprisonment being more difficult for him, although it was not considered that there was a serious risk that imprisonment would have a significant adverse long-term impact on the applicant’s mental health;[27]
[27]Ibid.
(d) noted the difficulties that the applicant had already experienced following the charging of these offences: the applicant had been ‘rejected’ by his sons and taunted by other prisoners;[28]
(e) recommended that the applicant participate in a sex offenders treatment program and considered, albeit tentatively, that the applicant’s risk of reoffending, including contact offences, was relatively low; [29] and
(f) recommended that the applicant be further assessed of his risk of reoffending following sentencing.[30]
[28]Ibid.
[29]Ibid [49].
[30]Ibid [50].
The sentencing judge had regard to the matters set out in Mr Daffern’s report in addition to the opinions of Mr Joblin and Mr Healey. She concluded that, with appropriate treatment, the applicant’s risk of reoffending was low.[31] On the applicant’s mental health state, she said:
I have had regard to your very significant medical history and poor health. You are a fragile man who suffers long-term depression and anxiety in addition to the documented physical conditions. I accept that jail will be more onerous for you having regard to your poor health. There is also a risk that your condition may be impacted upon by reason of imprisonment.[32]
[31]Ibid [50], [59].
[32]Ibid [60].
The sentencing judge took into account the applicant’s early plea of guilty and his cooperation with authorities:
I accept, firstly, that the court ought to have regard to your plea of guilty. It was entered at the earliest stage possible. You are entitled to a sentencing discount accordingly. I accept the plea represents a willingness to facilitate justice and is indicative of genuine remorse. I also accept there is real utility in your plea.
In addition, you were fully co-operative with the authorities at the time when you were first spoken to at the airport and during the formal recorded interview. You gave full and frank answers and comprehensively detailed the nature of your intimate relationship with the victim. You essentially told police all the information which comprises the evidence the subject of the first three charges on the indictment.
Having regard to the principles expressed in the decision of Ellis, you are entitled to considerable leniency for your confession. This principle rests upon the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and making a confession of guilt of that offence.
This principle has been further followed in many cases such as Ryan v R, R v Brazel, R v Doran and R v CLP.[33]
[33]Ibid [53]–[56] (citations omitted).
The sentencing judge also took into account the applicant’s level of remorse and his prospects of rehabilitation:
Your genuine remorse is further evidenced through your expansive answers that you gave in your record of interview and is evident from the discussions held between yourself and Mr Healey and Mr Joblin and confirmed in the reference given by Mr Wagner.
Given your insight into your offending, I consider that you do have good prospects of rehabilitation. I have had regard to the impact of the offending on you and accept that following the laying of the charges, the impact has been great and you lost your job of 39 years and you no longer have meaningful relationships with your two sons and you are a very sad, lonely and isolated person.[34]
[34]Ibid [57]–[58].
Having viewed the material the subject of charge 3 and charge 4, the sentencing judge considered that the applicant’s offending was at the lower end of the spectrum for this sort of offending. She had regard to the number of images, the nature of what was depicted and the age of the victims.[35]
[35]Ibid [61].
The sentencing judge stressed that there was a need to emphasise both general and specific deterrence. She was satisfied, having regard to the impact of the arrest upon the applicant and his subsequent experiences, that it was unlikely that he would reoffend in a like manner in the future. She considered there to be a real need for the applicant to undergo appropriate treatment and noted that he has expressed a willingness to undertake a sex offenders treatment program.[36]
[36]Ibid [31].
In respect of the nature and gravity of the offending, the sentencing judge concluded:
Ultimately, in formulating the appropriate sentence, I have had regard to the many factors that I must take into account when sentencing you pursuant to the factors set out in s 16A(1) and (2) Crimes Act 1914 (Cth) and s 5 of the Sentencing Act 1991.
I have come to the conclusion that a term of imprisonment to be served is the most appropriate disposition having regard to the gravity of the offending and I consider a non-custodial order such as that proposed, a Community Correction Order is not appropriate punishment.
In determining the sentence to be passed in respect to the Commonwealth charges I must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offending. In respect to the State charges I must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.
I have considered that there is an overlap between Charges 1 and 2 and the production of the images that were the subject of Charge 3 and it does exhibit a course of conduct. I will proceed to sentence in a way without any cumulation but nonetheless I have had regard to the principles of totality. In relation to the final charge, Charge 4, I consider that that does represent different criminal behaviour and some cumulation is warranted.
… in sentencing you, I must impose just punishment and on behalf of the community formally denounce your behaviour. General deterrence is of real importance in cases of this nature. People must be deterred from going overseas and having sex with underaged [sic] children, and also people must be deterred from possessing child pornography.
Having regard to your post-offence conduct, I consider that the need for specific deterrence is not as great for you now given that you do understand what you did was wrong and you have indicated your willingness to undertake Sex Offenders Treatment Program. It is my recommendation to enhance your rehabilitation prospects and to provide for the protection of the community in the future, that the correctional authorities arrange for you to participate in such a program as has been recommended by both Mr Healey and Mr Daffern.[37]
[37]Ibid [78]–[83] (citations omitted).
Proposed grounds of appeal
The applicant seeks leave to appeal against the sentences imposed on charge 1 and charge 2 on the basis that each sentence is manifestly excessive.
The applicant’s submissions
The applicant contends that there were ‘powerful factors’ limiting the severity of the sentence which was required or appropriate in this case. He points to the following:
(a) the offences involved neither predatory behaviour, given Chung’s persistent encouragement and initiation of sexual intercourse, nor a breach of trust;
(b) the applicant was in a fragile psychological state when he committed the offences and, as a result, he would experience special hardship in prison;
(c) the offences were first disclosed to the authorities by the applicant, and his admissions comprised the evidence against him;
(d) the applicant’s plea of guilty was entered at the earliest opportunity and was both indicative of genuine remorse and of real utility; and
(e) the applicant had no criminal history and was a low risk of reoffending.
The applicant contends that the length of the sentences imposed on charge 1 and charge 2 indicates that the sentencing judge had insufficient regard to the above factors when imposing the sentences. According to the applicant, in all the circumstances, the offences called for sentences in the lower half of the range. By contrast, he says, the 5- and 3-year sentences imposed on charges 1 and 2, respectively, were in the upper half of the sentencing range. The applicant draws a comparison between these sentences with those imposed for offences with a similar maximum penalty:[38]
[38]The applicant obtained the median sentence figures, based on the most recently calculated figures, from the Sentencing Advisory Council, Sentencing Snapshot 176: Sentencing Trends for Rape in the Higher Court of Victoria 2009-10 to 2013-14, 3; Sentencing Snapshot 192: Sentencing Trends for Incest in the Higher Court of Victoria 2009-10 to 2014-15, 2; Sentencing Snapshot 180: Sentencing Trends for Sexual penetration with a child aged under 12 in the Higher Court of Victoria 2009-10 to 2013-14, 4; and Sentencing Snapshot 182: Sentencing Trends for Sexual penetration with a child under care in the Higher Court of Victoria 2009-10 to 2013-14, 3.
Offence Maximum Penalty Median Sentence Rape 25 years 5 years Incest 25 years 4 years 6 months Sex. pen. Child <12 25 years 4 years Sex. pen. Child under care 15 years 3 years
Analysis
In Wong v The Queen,[39] Gaudron, Gummow and Hayne JJ said:
To focus on the result of the sentencing task, to the exclusion of the reasons which support the result, is to depart from fundamental principles of equal justice. Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect. Publishing a table of predicted or intended outcomes masks the task of identifying what are relevant differences.[40]
[39](2001) 207 CLR 584.
[40]Ibid 608 [65] (emphases in original).
In DPP (Cth) v Brown,[41] this Court made reference to the use of comparable cases in sentencing and to the limited use of ‘bare sentencing statistics’. It said:
[41][2017] VSCA 162.
Fairness demands that there should be reasonable consistency in sentencing. Further, in the absence of such reasonable consistency, the administration of justice is brought into disrepute. It is for the Court to determine what sentences should be considered in order to satisfy the norm of reasonable consistency. In practice, a court is assisted in fulfilling this obligation when the parties bring to the court’s attention cases which are said to be comparable to the case in hand. Usually, this is done by the preparation of tables of comparable cases. The utility of such tables will depend on how informative they are. Bare sentencing statistics may suggest a range in respect of sentences for a particular offence. But such statistics will not reveal the circumstances peculiar to a particular case.
Sentencing requires consideration of comparable cases: ‘Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.’ In Pham,[42] the High Court identified the twofold purpose in the use of comparable cases:
[42](2015) 256 CLR 550.
(a)they ‘provide guidance as to the identification and application of relevant sentencing principles’; and
(b)analysis of them ‘may yield discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence’.
In Nguyen v The Queen, Redlich JA (with whom Tate and Whelan JJA agreed) said:
These purposes advance the requirement of reasonable consistency. They advance the underlying value of equality under the law and the search for unifying principles. By the requirement that a discretionary decision must be made in conformity with well settled principles, the law promotes consistency in decision making and diminishes the risk of arbitrary and capricious adjudication.
…
Reasonable consistency is thus achieved by the maintenance of an appropriate relativity between the impugned sentence and similar comparators. Manifest inadequacy or excess is usually demonstrated when an appropriate relativity is absent between the nature of the offending and matters personal to the offender, and sentences imposed in the most closely comparable cases. Thus for example, in Dao v The Queen Nettle JA (as he then was) emphasised that the consistency stated in Wong required that the impugned sentence be in step with ‘relevant comparators’.[43]
[43]DPP (Cth) v Brown [2017] VSCA 162 [57]–[59] (citations omitted).
The statistics relied upon by the applicant were unhelpful. As the applicant frankly submitted, there are no sentencing statistics for the offences for which he has been convicted. Rather, he proffered statistics for sentences in respect of offences that carry a similar maximum penalty. But, these are not informative; they disclose nothing about the circumstances in which the sentences underlying the statistics were imposed. One cannot tell in any case whether the offending the subject of the sentencing statistics was in any way comparable to the offending in the present case.
The first charge related to conduct contrary to s 272.8(1) of the Criminal Code (Cth). Section 272.8 provides:
Sexual intercourse with child outside Australia
Engaging in sexual intercourse with child
(1) A person commits an offence if:
(a)the person engages in sexual intercourse with another person (the child ); and
(b) the child is under 16; and
(c) the sexual intercourse is engaged in outside Australia.
Penalty: Imprisonment for 20 years.
The second charge related to conduct contrary to s 272.9(1) of the Criminal Code (Cth). Section 272.9 provides:
Sexual activity (other than sexual intercourse) with child outside Australia
Engaging in sexual activity with child
(1) A person commits an offence if:
(a)the person engages in sexual activity (other than sexual intercourse) with another person (the child ); and
(b) the child is under 16; and
(c) the sexual activity is engaged in outside Australia.
Penalty: Imprisonment for 15 years.
The two offences were introduced by the Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 (Cth). In enacting this legislation, Parliament repealed and replaced s 50BA (sexual intercourse outside Australia with a child under 16) and s 50BC (sexual conduct outside Australia involving a child under 16) of the Crimes Act 1914 (Cth) with ss 272.8[44] and 272.9[45] of the Criminal Code (Cth), respectively. Parliament also raised:
(a) the maximum penalty for the offence of sexual intercourse with a child outside Australia from 17 to 20 years’ imprisonment; and
(b) the maximum penalty for the offence of sexual activity (other than sexual intercourse) with a child outside Australia from 12 to 15 years’ imprisonment.
[44]Section 272.8 replaced s 50BA of the Crimes Act 1914 (Cth). See s 1, Part 1, Schedule 1 of the Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 (Cth), which repealed Division 2 of Part IIIA (which included s 50BA) of the Crimes Act 1914 (Cth). Section 50BA provided: (1) A person must not, while outside Australia, engage in sexual intercourse with a person who is under 16. Penalty Imprisonment for 17 years. (2) For the purposes of an offence against subsection (1), absolute liability applies to the following physical elements of circumstance of the offence: (a) that the sexual intercourse is engaged in outside Australia; (b) that the person referred to in that subsection as being under 16 is in fact under 16.
[45]Section 272.9 replaced s 50BC of the Crimes Act 1914 (Cth). See s 1, Part 1, Schedule 1 of the Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 (Cth), which repealed Division 2 of Part IIIA (which included s 50BC) of Crimes Act 1914 (Cth). Section 50BC provided: (1) A person (the first person) contravenes this section if, while the first person is outside Australia: (a) the first person commits an act of indecency on a person who is under 16; or (b) the first person submits to an act of indecency committed by a person who is under 16; or (c) the first person commits an act of indecency in the presence of a person who is under 16 (the child), and the first person intends to derive gratification from the child's presence during the act; or (d) the first person submits to an act of indecency committed in the presence of a person who is under 16 (the child), and the first person intends to derive gratification from the child's presence during the act; or (e) the first person engages in sexual intercourse with another person in the presence of a person who is under 16 (the child), and the first person intends to derive gratification from the child's presence during the sexual intercourse. Penalty: Imprisonment for 12 years. (2) For the purposes of an offence against subsection (1), absolute liability applies to such of the following physical elements of circumstance as are relevant to the offence: (a) that the first person is outside Australia; (b) that the person referred to in that subsection as being under 16 is in fact under 16; (c) in the case of an offence against paragraph (1)(a), (b), (c) or (d)--that the act of indecency referred to in that paragraph is in fact an act of indecency. Note 1: For absolute liability, see section 6.2 of the Criminal Code. Note 2: For a defence based on belief about age, see section 50CA.
In Assheton v The Queen,[46] an offender appealed against a sentence of five years’ imprisonment for two offences of engaging in an act of indecency against a child under 16 contrary to s 50BC(1)(a) of the Crimes Act 1914 (Cth). The maximum penalty was 12 years’ imprisonment. The applicant was sentenced to three years’ imprisonment on the first count and two years’ imprisonment on the second count, to be served cumulatively. Neither offence involved penetration. The application was refused. The applicant had pleaded guilty to the two charges which were detected after the applicant was found in possession of video footage of himself engaged in sexual acts with two boys in Bali who were members of a family with which the applicant was friendly. The offending the subject of the first count was not a single incident; it was found to have involved ‘involved extensive touching and examination of [the child’s] private parts’.[47] The offending the subject of the second count involved was not as intrusive but involved touching in an indecent manner.[48] The applicant appealed against his sentence on the grounds of manifest excess. Malcolm CJ (with whom Murray and Steytler JJ agreed) dismissed the appeal.
[46](2002) 132 A Crim R 237 (‘Assheton’).
[47]Ibid 245 [29].
[48]Ibid 245 [31].
In R v ONA,[49] the offender pleaded guilty to two offences under the Crimes Act 1914 (Cth). Count 1 was the offence of committing an act of indecency on a person under 16 while outside Australia (s 50BC(1)) and count 2 was the offence of engaging in sexual intercourse with a person under 16 while outside Australia (s 50BA(1)). The offender had visited Liberia where he commenced a relationship with the mother of the complainant. The first offence took place in Liberia when the complainant was between five and seven years of age. The second offence took place in Thailand. The offender filmed the conduct the subject of each count. The film of the first offence showed the offender washing the complainant’s vagina; the film of the second offence showed the offender using his penis to penetrate the outer lips of her vagina. A judge in the County Court sentenced the offender to 18 months’ imprisonment on count 1 and five years’ imprisonment on count 2. The sentencing judge ordered that the sentence imposed on count 2 commence 12 months after the sentence imposed on count 1, resulting in a total effective sentence of six years. He fixed a non-parole period of four years. The offender appealed against the sentence on various grounds including that the sentence was manifestly excessive. Neave JA (with whom Ashley JA and Mandie AJA agreed) dismissed the appeal.
[49](2009) 24 VR 197 (‘ONA’).
In R v Wicks,[50] the Crown appealed against a sentence imposed on the respondent for six offences under the Crimes Act 1914 (Cth). The offences were four counts of sexual intercourse with persons under 16 years outside Australia (s 50BA(1)), one count of inducing a person under 16 to committee an act of indecency outside Australia (s 50BD(1)) and one count of inducing a person under the age of 16 years to have sexual intercourse with another person outside Australia (s 50BB(1)). The New South Wales Court of Criminal Appeal (McClellan CJ at CL, Adams and Hoeben JJ) found that a sentence of five years’ imprisonment on each of the four charges of offending contrary to s 50BA(1) Crimes Act 1914 (Cth) with a non-parole period of three years was at the lowest end of the range but not such as to warrant intervention. The offending involved four boys aged under 16 over a 10-day period in Thailand. The offender, who was aged 71 at the time of sentence, paid the boys and videotaped sexual interaction with them. For the count of conduct in contravention of s 50BD(1), the offender was sentenced to three years’ imprisonment; for the count of conduct in contravention of s 50BB(1), he was sentenced to five years’ imprisonment. The total effective sentence was five years’ imprisonment with a non-parole period of three years. The Court did not interfere with the sentence but held that the sentencing judge erred in ordering that all of the sentences imposed should be served concurrently without any accumulation.[51]
[50][2005] NSWCCA 409 (‘Wicks’).
[51]Ibid [49]–[50].
The maximum penalties for the offences in Assheton, ONA and Wicks were less than in the present application and the offending of far shorter duration.
In order to establish the proposed ground of manifest excess, it will be necessary for the applicant to establish that the sentence imposed is wholly outside the range of sentencing options available.[52] He will need to be able to demonstrate that something has gone obviously, plainly or badly wrong.[53] Manifest excess is a stringent ground which is difficult to make good.[54]
[52]R v Boaza [1999] VSCA 126 [42].
[53]Binse v The Queen [2016] VSCA 145 [57].
[54]DPP v Karazisis (2010) 31 VR 634, 662–3 [127].
I would dismiss the contention that the sentences were manifestly excessive. The objective gravity of the offending, the need for just punishment, denunciation and general deterrence justified the sentences imposed. Although there do not appear to be sentences for these offences that can be used for the purposes of comparison, the sentences for the predecessor offences discussed above are useful as comparators. What is more, by enacting the Crimes Legislation Amendment (Sexual Offences Against Children) Act 2010 (Cth), Parliament increased the maximum penalties that are to be imposed in respect of this conduct.
Conclusion
The application for leave to appeal against sentence should be refused.
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