Musca v The Queen
[2021] WASCA 37
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MUSCA -v- THE QUEEN [2021] WASCA 37
CORAM: QUINLAN CJ
BUSS P
MAZZA JA
HEARD: 8 DECEMBER 2020
DELIVERED : 4 MARCH 2021
FILE NO/S: CACR 57 of 2020
BETWEEN: JULIAN AARON MUSCA
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: WALLACE DCJ
File Number : IND 1879 of 2019
Catchwords:
Criminal law – Sentencing – Possession of child exploitation material – Using a carriage service to access child pornography material – Using a carriage service to transmit child pornography material – Whether totality principle correctly applied – Whether minimum period of imprisonment under recognizance release order unreasonable or plainly unjust
Legislation:
Crimes Act 1914 (Cth), s 20
Criminal Code (WA), s 220
Criminal Code Act 1995 (Cth), s 474.19(1)(a)
Result:
Leave to appeal on ground 2 refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | T F Percy QC with G C R Yin |
| Respondent | : | P D Yovich SC with A J C Mossop |
Solicitors:
| Appellant | : | D G Price & Co |
| Respondent | : | Director of Public Prosecutions (Cth) |
Cases referred to in decision:
Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18
Deakin v The Queen (1984) 58 ALJR 367; [1984] HCA 31
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Hong v R [2017] NSWCCA 238
Kabambi v The State of Western Australia [2019] WASCA 44
Merritt v The State of Western Australia [2019] WASCA 203
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Peters v The Queen [2018] NSWCCA 126
Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
R v Abbas [2019] WASCA 64; (2019) 277 A Crim R 105
R v De Leeuw [2015] NSWCCA 183
R v Freedman [2017] NSWCCA 201; (2017) 268 A Crim R 453
R v Host [2015] WASCA 23; (2015) 248 A Crim R 352
Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319
Shi v The State of Western Australia [2020] WASCA 197
The State of Western Australia v McCarthy [2014] WASCA 210; (2014) 246 A Crim R 86
JUDGMENT OF THE COURT:
Introduction and overview
This is an appeal against sentence.
The appellant was convicted, on his pleas of guilty, of four counts on an indictment. Two of the convictions were for possession of child exploitation material contrary to s 220 of the Criminal Code (WA) (the State offences). The other two convictions were for using a carriage service to access child pornography material and using a carriage service to transmit child pornography material contrary to s 474.19(1)(a)(i) and s 474.19(1)(a)(iii) (respectively) of the Criminal Code Act 1995 (Cth) (the Commonwealth offences).
Count 1 related to child exploitation material that was stored on a Samsung mobile telephone (the mobile) and in the appellant's possession on 9 May 2019. Count 2 related to child exploitation material that was stored on a Samsung Galaxy S2 tablet (the tablet) and in the appellant's possession on the same date as count 1. Count 3 related to an email account located on the tablet that had received six emails containing child pornography from different email addresses. Count 4 related to the same email account on the tablet, which had been used to transmit 38 emails containing child pornography to 15 different email addresses over an eight month period.
The maximum penalty for each of counts 1 and 2 was 7 years imprisonment. The maximum penalty for each of counts 3 and 4 was 15 years imprisonment.
On 3 April 2020, Wallace DCJ imposed a total effective sentence for the four counts on the indictment of 19 months imprisonment. Her Honour ordered that the appellant be eligible for parole in relation to the terms of imprisonment imposed for the State offences and made a recognizance release order in relation to the terms of imprisonment imposed for the Commonwealth offences. The net effect of the total sentences was that, with release on parole, the appellant would serve a total of 14 months imprisonment on the 19‑month sentence.
That result was reached in the following way.
In relation to each of the State offences, the appellant was sentenced to 18 months imprisonment to be served concurrently. As the appellant was made eligible for parole, the non‑parole period was 9 months imprisonment.
In relation to the Commonwealth offences, the appellant was sentenced to 6 months imprisonment on count 3 and 10 months imprisonment on count 4. Those terms of imprisonment were ordered to be served concurrently with each other but partly cumulative on the sentences for the State offences. In that regard, the learned sentencing judge ordered that the sentences for the Commonwealth offences commence immediately upon the completion of the non‑parole period for the State offences (i.e. after 9 months imprisonment).
Her Honour made a recognizance release order in relation to the Commonwealth offences to the effect that the appellant, upon giving security by recognizance of $5,000 and to be of good behaviour for 6 months, be released after having served 5 months imprisonment.
Her Honour also made a forfeiture order in relation to the electronic devices that were used in connection with the offences, namely the mobile and tablet.
The appellant appeals his sentence on two grounds:[1]
(a)that the learned sentencing judge erred in the exercise of her sentencing discretion by applying the totality principle to the offending the subject of the State offences and, separately, to the offending the subject of the Commonwealth offences, rather than by reference to the overall criminality involved in all of the four offences, viewed in their entirety (ground 1); and
(b)that the recognizance release order made in relation to the Commonwealth offences was manifestly excessive and disproportionate to the total effective sentence (ground 2).
[1] Leave to appeal on ground 1 was granted by order of Mazza JA dated 2 July 2020, AB 4. The application for leave to appeal on ground 2 was referred to the hearing of the appeal.
For the reasons that follow, the appeal should be dismissed.
Circumstances of the offending
Between July 2018 and February 2019, the Australian Federal Police (AFP) received six related National Centre for Missing and Exploited Children reports. The reports detailed that accounts with different usernames had been used to transmit child pornography on various platforms. AFP inquiries identified the appellant as the person who was suspected to be the user of those accounts.[2]
[2] Sentencing ts 32 (AB 71).
On 9 May 2019, officers of the AFP executed a search warrant at the appellant's home while the appellant was present. During the search, police located and seized the mobile and tablet. A cursory examination of the mobile and tablet revealed that they contained child pornography.
Analysis of the mobile revealed that the device contained child exploitation material in a number of locations on the device. This material was categorised according to the Australian National Victim Identification Library (ANVIL) schema. The ANVIL schema categorises material according to the following classifications:[3]
(a)category 1 contains images and videos depicting children with no sexual activity but includes nudity, surreptitious images showing underwear, nakedness, sexually suggestive posing, explicit emphasis on genital areas and solo urination;
(b)category 2 contains images and videos depicting solo masturbation of a child or non‑penetrative sexual acts between children, including a child penetrating themselves in the act of masturbation;
(c)category 3 contains images and videos of non‑penetrative sexual activity between a child or children and an adult or adults, including mutual masturbation and other non‑penetrative sexual activity;
(d)category 4 contains images and videos depicting penetrative sexual activity between a child or children and an adult or adults, including but not limited to intercourse and oral intercourse;
(e)category 5 contains images and videos which depict sadism, bestiality and humiliation (including urination, defecation, vomit and bondage) involving children; and
(f)category 6 contains artificial images such as cartoons, comics and drawings depicting children engaged in sexual poses or activity.
[3] Sentencing ts 32 ‑ 33 (AB 71 ‑ 72).
The material on the mobile was categorised as follows:[4]
(a)2,706 images and 99 videos in category 1;
(b)132 images and 123 videos in category 2;
(c)495 images and 66 videos in category 3;
(d)376 images and 287 videos in category 4;
(e)64 images and 36 videos in category 5; and
(f)711 images in category 6.
[4] Sentencing ts 32 ‑ 33 (AB 71 ‑ 72).
In total there were 4,484 images and 611 videos found on the mobile.
Possession of this material on the mobile constituted count 1.
Analysis of the tablet revealed that the device contained child exploitation material in a number of locations on the device. This material was categorised according to the ANVIL schema as follows:[5]
(a)2,337 images and one video in category 1;
(b)87 images in category 2;
(c)292 images and one video in category 3;
(d)333 images and five videos in category 4;
(e)81 images in category 5; and
(f)48 images in category 6.
[5] Sentencing ts 33 (AB 72).
In total there were 3,178 images and seven videos found on the tablet.
Possession of this material on the tablet constituted count 2.
The learned sentencing judge viewed, and described, a representative sample of the material found on the mobile and tablet. It is not necessary, for present purposes, to describe the particular images and videos in these reasons. Needless to say the material the subject of counts 1 and 2 included content of the utmost depravity and depicted serious sexual abuse of children.[6]
[6] Sentencing ts 33 ‑ 34 (AB 72 ‑ 73).
Analysis of the email account on the tablet revealed it was used to receive six emails containing child pornography from a number of different email addresses. The nature of the material received (including the ANVIL schema categorisation) was as follows:[7]
(a)on 1 June 2018 the appellant received a photograph of a young girl with her genitals exposed (category 1);
(b)on 16 January 2019 the appellant received a photograph of a young girl sitting with her legs apart (category 1);
(c)on 25 January 2019 the appellant received a photograph of a young girl sitting with her genitals and anus exposed (category 1);
(d)on 28 January 2019 the appellant received a video montage of a number of young girls in various states of undress and which also included depictions of masturbation (category 2);
(e)on 30 January 2019 the appellant received an email with images that extended from category 1 to category 4, including images and videos depicting penetrative sexual activity; and
(f)on 17 April 2019 the appellant received two images in category 4 depicting penetrative sexual activity.
[7] Sentencing ts 34 ‑ 35 (AB 73 ‑ 74).
The appellant's conduct in receiving these emails constituted count 3.
Further analysis of the email account on the tablet revealed it was used to transmit 38 emails containing child pornography to a number of different email addresses (15 addresses in total). The emails were sent by the appellant on various dates between 1 June 2018 and 24 February 2019. The nature of the material sent by the appellant included images and videos categorised as category 1, 2 and 4 according to the ANVIL schema (including depictions of sexual penetration).
The appellant's conduct in sending these emails constituted count 4.
In addition to the child exploitation material, the devices contained images believed to have been taken by the appellant capturing images and footage of young children at an aquatic centre and at a shopping centre. These files were not considered to be child exploitation material.
Appellant's personal circumstances
The appellant was 41 years of age at the time of sentencing.
The appellant was one of two children to his parents. His older brother was seven years older than him. The appellant came from what senior counsel before the learned sentencing judge and this Court described as 'privileged circumstances'.[8]
[8] Sentencing ts 18 (AB 57).
The appellant, nevertheless, suffered from a number of significant adverse experiences in his personal history.
First, the appellant was himself the victim of sexual abuse by an older male who was a friend of the family. This person directed the appellant and his own daughter to engage with each other sexually.[9] This occurred over a period of time when the appellant was between the ages of six and nine years.
[9] Sentencing ts 39 (AB 78); AB 112.
Secondly, the appellant's parents separated when he was a young age (nine years old), which caused quite severe and ongoing disruption to his emotional wellbeing.[10] The appellant continued to live with his mother and older brother in their home after his father moved out.
[10] Sentencing ts 39 ‑ 40 (AB 78 ‑ 79); AB 125.
Thirdly, the appellant's mother was diagnosed with breast cancer in 1990. From the age of about 16 years until her death in 2006 (as a result of the disease), the appellant was his mother's sole carer and responsible for all her needs which included dressing of wounds after radiation treatment. The appellant's mother's needs increased over time as her illness worsened towards her ultimate death.
Fourthly, in 1996 (at the age of 18 years), the appellant was the victim of a serious and unprovoked assault that resulted in severe disfigurement of his facial features and required multiple surgeries. The initial disfigurement and lasting scarring was distressing to the appellant.[11]
[11] Sentencing ts 41 (AB 80); AB 112.
Fifthly, the appellant commenced using drugs at the age of 16 and had a history of polysubstance abuse.[12] The appellant used ecstasy, methylamphetamine, cannabis and alcohol. When caring for his mother, the appellant took OxyContin that had been prescribed to his mother.[13]
[12] Sentencing ts 41 (AB 79).
[13] Sentencing ts 41 (AB 79).
Sixthly, the appellant had a criminal record, albeit that it was limited in nature. His previous offences were traffic offences and relatively minor drug offences.[14]
[14] Sentencing ts 44 ‑ 45 (AB 83 ‑ 84).
Finally, the appellant has a history of major depression disorder and anxiety, which were the subject of reports provided to the learned sentencing judge by Dr Lawrence Blumberg, psychiatrist, and Ms Helen Fowler, the appellant's treating psychologist.
There was no evidence nor any allegation that the appellant actually engaged or ever intended to engage in any sexual acts with children,[15] although, following counselling, he did accept that he had a sexual interest in young female children.[16]
[15] Sentencing ts 22 (AB 61).
[16] Sentencing ts 31 (AB 70).
Learned sentencing judge's reasons
Wallace DCJ commenced her sentencing remarks by confirming that, in making her decision, she had read and relied on the psychological and psychiatric reports, as well as letters to the court from both the appellant and the appellant's father.
Her Honour identified a number of the relevant sentencing considerations in relation to both the State offences and the Commonwealth offences. Her Honour referred to the various considerations identified by the New South Wales Court of Criminal Appeal in R v De Leeuw.[17] In that context the learned sentencing judge identified the following matters going to the seriousness of the appellant's offending:
(a)the quantity of the images and videos in the appellant's possession, which numbered in the thousands;[18]
(b)the vile and degrading nature of the material, which included category 4 and category 5 images and videos;[19]
(c)that the offending occurred over a period of approximately seven months and could not be described as transitory, brief or accidental;[20]
(d)the young age of the children depicted, with many victims aged between four and six years of age;[21]
(e)that the material was to be used for distribution to others, although her Honour noted that there was no profit motive;[22] and
(f)that the quantity of images and videos also indicated that the number of individual victims depicted was high.[23]
[17] R v De Leeuw [2015] NSWCCA 183 [72] (Johnson J, Ward JA & Garling J).
[18] Sentencing ts 39 (AB 76).
[19] Sentencing ts 39 (AB 76).
[20] Sentencing ts 40 (AB 77).
[21] Sentencing ts 40 (AB 77).
[22] Sentencing ts 40 (AB 77).
[23] Sentencing ts 40 (AB 77).
The learned sentencing judge also set out, in significant detail, the appellant's mitigating factors. In addition to the matters of personal history set out above, her Honour identified the appellant's plea of guilty on each count at the earliest reasonable opportunity. Recognising the strong Crown case, and the absence of a complainant, the learned sentencing judge applied a discount of 20% in respect of the pleas of guilty.
Her Honour also identified the other matters in mitigation:
(a)the appellant had not, since his arrest, consumed any alcohol and had tried to abstain from methylamphetamine (in relation to which he had reported three lapses since his arrest);[24]
(b)the appellant had shown genuine remorse, and insight into the victims of his crimes, being vulnerable innocent children who have been abused to satisfy the market for child exploitation material;[25]
(c)the appellant had taken steps since his arrest to rehabilitate himself through counselling with Ms Fowler, although there was still much work to be done;[26] and
(d)the appellant had made positive changes in his life, including working on his mental health, engaging in meditation exercises and engaging in counselling.[27]
[24] Sentencing ts 43 (AB 82).
[25] Sentencing ts 44 (AB 83).
[26] Sentencing ts 44 (AB 83).
[27] Sentencing ts 44 (AB 83).
After referring again to the relevant sentencing principles, the learned sentencing judge referred to the totality principle. Her Honour said:[28]
When sentencing for multiple offences, I must set an appropriate sentence for each offence, then consider questions of accumulation, concurrence and totality. The question will be whether the total sentence is just and appropriate to reflect your total criminality.
[28] Sentencing ts 46 (AB 85).
In relation to all of the individual offences the learned sentencing judge concluded that the only appropriate sentencing option was immediate imprisonment. Her Honour concluded that the offending in relation to each of the State offences was of substantially similar seriousness and imposed terms of imprisonment of 18 months in relation to each offence.[29] In relation to count 3 her Honour imposed a sentence of 6 months imprisonment and, in relation to count 4, a sentence of 10 months imprisonment.[30]
[29] Sentencing ts 48 (AB 87).
[30] Sentencing ts 49 (AB 88).
The learned sentencing judge then turned to the question of totality and the total effective sentence. Given its significance to the grounds of appeal, it is appropriate to set out that portion of her Honour's sentencing remarks in full:[31]
I now need to consider the issue of totality in that I am to ensure that the total effective sentence bears a proper relation to the overall criminality involved in all of the offences viewed in their entirety and having regard to the circumstances of the case including those referrable to you personally. Further, any sentence imposed should not be such as may be destructive of any reasonable expectation of a useful life after release.
In my view, the total criminality of the offending in respect of counts 1 and 2 warrants a total effective sentence of 18 months' imprisonment. This means that those sentences will be served concurrently.
I will make you eligible for parole in respect of counts 1 and 2.
The sentence is to commence immediately which will mean that you will be eligible for parole after serving nine months.
The Commonwealth imprisonment terms for counts 3 and 4 will also be served concurrently with each other which leads to a total term of imprisonment for both of those offences of 10 months.
That term will commence when the parole period has ended for counts 1 and 2. That is, on my calculations, on 4 January 2021.
I will make a recognizance release order in relation to counts 3 and 4, that you be released after serving five months on entering into a recognisance in the sum of $5,000, to be of good behaviour for six months.
In my view, that constitutes a minimum term which [is] of a severity appropriate in all of the circumstances. The recognisance given in accordance with the order may be discharged or varied. (emphasis added)
[31] Sentencing ts 52 ‑ 53 (AB 91 ‑ 92).
We turn then to the grounds of appeal.
Ground 1
Ground 1 contends that the learned sentencing judge erroneously applied the totality principle, and in particular the first limb of that principle. The ground alleges express error. The appellant did not allege that the length of the total effective sentence of 19 months imprisonment was unreasonable or plainly unjust.
The first limb of the totality principle is clear enough, namely that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally.[32]
[32] Kabambi v The State of Western Australia [2019] WASCA 44 (Kabambi) [21] (Buss P, Mitchell & Pritchard JJA).
The appellant's submissions in relation to ground 1 took two forms.
In the appellant's written submissions, he submitted that the learned sentencing judge did not apply the totality principle by reference to the overall criminality involved in all of the four offences, but by reference, first, to the criminality revealed by the State offences and, secondly, to the criminality revealed by the Commonwealth offences.[33]
[33] Appellant's submissions [16] (AB 9).
At the hearing of the appeal, the appellant put the submission in terms that her Honour had failed to take a 'last look at the overall sentence'. As counsel put it at the hearing of the appeal, the learned sentencing judge:[34]
addressed the question of totality and set it out, we would say with respect, correctly and had some regard to what the – whether justice required the concurrency or cumulativity. She had reached all of the (sic) impeccably, if I can say that. There's just one step missing and that's a last look at the overall sentence.
[34] Appeal ts 6.
As is apparent from this submission, the appellant did not contend that the learned sentencing judge at any point misstated the totality principle. Indeed, the appellant accepted that her Honour correctly stated the principle that she was required to apply.[35] The appellant's concession in this regard was entirely correct. Indeed, the learned sentencing judge correctly set out the totality principle at two separate points in her sentencing remarks.[36]
[35] Appellant's submissions [15] (AB 9).
[36] See [43] and [45] (first paragraph) above.
So understood, ground 1 faces an insurmountable hurdle. The learned trial judge having correctly identified the effect of the totality principle, and then having arrived at a total effective sentence that included both wholly concurrent sentences (in relation to some of the sentences) and partly concurrent and partly cumulative sentences (in relation to others), in order to uphold ground 1 it would be necessary for this Court to infer that her Honour simply forgot to apply or in some way, that is not apparent, misapplied the principle that she had just (twice) identified.
There is no basis for drawing that inference. Indeed, quite the opposite. In the present case, the effect of the order that the concurrent sentences of 6 months and 10 months imprisonment in relation to the Commonwealth offences should commence once the appellant was eligible for parole on the State offences, was to increase the total effective sentence by only one month.
The marginal effect of the sentences for the Commonwealth offences on the total effective sentence indicates that totality did in fact play a significant role in the structure of the overall sentence imposed.
The appellant's submission that the learned sentencing judge failed to take a 'last look' at the sentence is based upon the description of the totality principle that first appeared in Thomas, Principles of Sentencing, namely that:[37]
when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong.
[37] Thomas, Principles of Sentencing, 2nd ed (1979), 56 ‑ 57.
The passage containing this description of the totality principle was approved by the High Court in Mill v The Queen.[38]
[38] Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, 62 ‑ 63 (Wilson, Deane, Dawson, Toohey & Gaudron JJ); Merritt v The State of Western Australia [2019] WASCA 203 [45] (Buss P & Mazza JA).
As is clear from this passage, in context, the reference to the court taking a 'last look' should not be understood as identifying a 'stage' or 'step' in the application of the totality principle. It is, rather, simply a useful way of describing the practical application of the principle itself.[39]
[39] See Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319 [37] (Owen J).
In the end, the application of the totality principle does not require the use of any particular verbal formula. What is required is that the sentencing judge is alert to the need to ensure that the total sentence imposed in relation to multiple offences bears a proper relationship to the overall criminality involved in all of the offences. It is a principle of justice and due proportion; not a ritual incantation.
In our view the learned sentencing judge was plainly alert to that principle and properly applied it in the present case.
Ground 1 must be rejected.
Ground 2
Ground 2 contends that the recognizance release order made in relation to the Commonwealth offences was manifestly excessive and disproportionate to the total effective sentence.
The ground invokes implied, rather than express error, although not, it must be observed, in relation to the total effective sentence of 19 months imprisonment. Indeed, the appellant accepted at the hearing of the appeal that the total effective sentence of 19 months was correct, even 'merciful'.[40]
[40] Appeal ts 16.
The complaint, rather, is in relation to the minimum period of 5 months imprisonment imposed by the learned trial judge under the recognizance release order made in respect of the Commonwealth offences (namely the 'specified period of imprisonment' within the meaning of s 20(1)(b) of the Crimes Act 1914 (Cth)).
While the 'specified period of imprisonment' of 5 months was itself said to be manifestly excessive, there was a significant focus, in the appellant's submissions, on the minimum period of imprisonment to be served as a proportion of the total effective sentence of 19 months imprisonment.
In that regard, the appellant observed that the overall minimum period of 14 months imprisonment (consisting of the non‑parole period with respect to the State offences and the 'specified period' with respect to the Commonwealth offences) was 74% of the total effective sentence.[41]
[41] Appellant's submissions [30] ‑ [31] (AB 12 ‑ 13).
This focus on the proportion that the overall minimum period bore to the total effective sentence, however, was apt to divert attention from the nature of the learned sentencing judge's task in fixing the specified period of imprisonment under the recognizance release order. Indeed, to have focused on that period as a proportion of the total effective sentence would have been such as to lead the learned sentencing judge into error.
As the High Court said in Hili v The Queen:[42]
[T]here neither is, nor should be, a judicially determined norm or starting point (whether expressed as a percentage of the head sentence, or otherwise) for the period of imprisonment that a federal offender should actually serve in prison before release on a recognizance release order. More particularly, ... it is wrong to say … 'that the "norm" for a period of mandatory imprisonment under the Commonwealth legislation is between 60 and 66 per cent, which figure will be affected by special circumstances applicable to a particular offender'. It is wrong to begin from some assumed starting point and then seek to identify 'special circumstances'. Rather, a sentencing judge should determine the length of sentence to be served before a recognizance release order takes effect by reference to, and application of, the principles identified by this Court in Power, Deakin and Bugmy.
[42] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 [44] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).
The High Court's reference to the principles identified in Power,[43] Deakin[44] and Bugmy,[45] are the principles that minimum terms provide for mitigation of punishment in favour of rehabilitation and that the minimum period should reflect the 'minimum time that a judge determines justice requires that [the offender] must serve'.[46]
[43] Power v The Queen (1974) 131 CLR 623; [1974] HCA 26 (Power).
[44] Deakin v The Queen (1984) 58 ALJR 367; [1984] HCA 31 (Deakin).
[45] Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18 (Bugmy).
[46] Power, 628 ‑ 629 (Barwick CJ, Menzies, Stephen & Mason JJ); Deakin, 367 (Gibbs CJ, Murphy, Wilson, Brennan & Dawson JJ); Bugmy, 531 (Mason CJ & McHugh J).
As to the application of these principles in this State, including the principle that the 'specified period' under a recognizance release order is 'the minimum period of imprisonment that justice requires the offender to serve', see R v Host[47] and R v Abbas.[48]
[47] R v Host [2015] WASCA 23; (2015) 248 A Crim R 352 [172] ‑ [177] (Buss JA, Mazza JA agreeing).
[48] R v Abbas [2019] WASCA 64; (2019) 277 A Crim R 105 [118] ‑ [124] (Buss P, Mazza & Beech JJA).
In setting a minimum period under the recognizance release order in the present case, the learned sentencing judge expressly applied this principle, concluding that the period 'constitutes a minimum term which [is] of a severity appropriate in all of the circumstances'.[49] Her Honour was correct to reach that conclusion by reference to the length of the term itself, rather than by reference to the proportion that it (together with the non‑parole period for the State offences) bore to the total effective sentence.
[49] Sentencing ts 53 (AB 92).
The only question then is whether the term itself was manifestly excessive, namely that the end result is so unreasonable or unjust that this Court must conclude that a substantial wrong has occurred. In that regard, this Court cannot substitute its own opinion for that of the sentencing court merely because it would have exercised the sentencing discretion differently.[50]
[50] Kabambi [21] (Buss P, Mitchell & Pritchard JJA).
In addressing that question, we will proceed on the basis that the effect of the 'specified period' under the recognizance release order (5 months) falls to be assessed in light of the sentence imposed as a whole; that is, the total period to be served before the appellant is eligible for release (namely 14 months imprisonment).
In our view, it cannot be concluded that the minimum period that the appellant was required to serve before being eligible for release was unreasonable or plainly unjust.
The offences for which the appellant was convicted and sentenced were clearly serious. The appellant was not only in possession of a significant quantity of child exploitation material, but he was, over an extended period of time, actively involved in the distribution of that material to others.
The major sentencing consideration for all of the offences in the present case was general deterrence. The possession and distribution of child exploitation material encourages its production and with it the abuse, exploitation, humiliation and corruption of vulnerable children. Deterrent sentences are necessary so as to eliminate or reduce demand for, and thus the production and supply of, such material. As a result of the weight to be given to general deterrence, mitigating factors personal to the offender are of less weight.[51]
[51] The State of Western Australia v McCarthy [2014] WASCA 210; (2014) 246 A Crim R 86 [71] ‑ [73] (Mazza JA; McLure P & Buss JA agreeing); Shi v The State of Western Australia [2020] WASCA 197 (Shi) [45] (Buss P, Mazza & Vaughan JJA).
In the present case, the total effective sentence of 19 months imprisonment may properly be described as lenient. That result was no doubt a consequence of the appellant's early pleas of guilty, genuine remorse, steps to rehabilitate himself and difficult personal history, to which the learned sentencing judge gave due regard. The proportion that the minimum period bore to the total effective sentence may, at least in part, be explained by the relative leniency of the total effective sentence.
As to the minimum period itself, both the specified period under the recognizance release order (5 months) and, as a consequence, the total period to be served before the appellant is eligible for release (14 months) were, in our view, within the range of a sound exercise of sentencing discretion as the minimum period of imprisonment that justice required the appellant to serve.
The appellant did not identify, or rely upon, any comparable cases in support of the submission that the minimum period imposed in the present case was outside the range of a sound exercise of sentencing discretion. Insofar as the Crown referred to sentences customarily imposed, it is apparent that the minimum period imposed in the present case was broadly consistent with other cases.[52]
[52] Most recently reviewed in Shi [47] ‑ [49] (Buss P, Mazza & Vaughan JJA). See also Peters v The Queen [2018] NSWCCA 126; R v Freedman [2017] NSWCCA 201; (2017) 268 A Crim R 453; Hong v R [2017] NSWCCA 238.
Having regard to all of the circumstances of the case (including those personal to the appellant) and all relevant sentencing principles, it cannot be concluded that the minimum period that the appellant is required to serve is unreasonable or plainly unjust. In our view it cannot be inferred that the learned sentencing judge was in error.
We would refuse leave to appeal on ground 2.
Conclusion
Leave to appeal should be refused on ground 2 and the appeal dismissed.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
LH
Research Associate to the Honourable Chief Justice Quinlan
4 MARCH 2021
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