Newman v R

[2018] NSWCCA 208

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Newman v R [2018] NSWCCA 208
Hearing dates:	7 March 2018
Date of orders:	28 September 2018
Decision date:	28 September 2018
Before:	Payne JA; Johnson J; Campbell J
Decision:	(1) Leave to appeal against sentence granted;  (2) Appeal dismissed.
Catchwords:	CRIME – appeal against sentence – possession of child abuse material – Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(3) – mitigating factors – remorse – whether denial of procedural fairness – prospects of rehabilitation – whether sentence manifestly excessive
Legislation Cited:	Crimes Act 1900 (NSW), s 91H Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 21A Criminal Procedure Act 1986 (NSW), s 166 Drug Misuse and Trafficking Act 1985 (NSW), ss 10, 11 Family Law Act 1975 (Cth), s 65AA Migration Act 1958 (Cth)
Cases Cited:	Chong v R [2017] NSWCCA 185 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 Fitzgerald v R [2015] NSWCCA 266 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 House v The King (1936) 55 CLR 499; [1936] HCA 40 Hughes v R [2018] NSWCCA 2 Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Medcalf v R [2016] NSWCCA 209 Obeid v R [2017] NSWCCA 221 R v Booth [2009] NSWCCA 89 R v De Leeuw [2015] NSWCCA 183 R v Johnston [2005] NSWCCA 80 R v Kristensen [2018] NSWCCA 189 R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 R v Pham [2005] NSWCCA 94 R v Pham (2015) 256 CLR 550; [2015] HCA 39 R v Porte [2015] NSWCCA 174; (2015) 252 A Crim R 294 R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 Singh v R [2018] NSWCCA 60 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Category:	Principal judgment
Parties:	Mark Newman (Applicant) Director of Public Prosecutions (Respondent)
Representation:	Counsel: S J Tovey (Applicant) E Balodis (Respondent)   Solicitors: Fayman Lawyers (Applicant) Solicitor for Public Prosecution (Respondent)
File Number(s):	2016/00043487
Publication restriction:	None
Decision under appeal	Court or tribunal: District Court Jurisdiction: Crime Date of Decision: 11 May 2017 Before: Colefax SC DCJ File Number(s): 2016/00043487

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Newman pleaded guilty in the Local Court to seven counts of possession of child abuse material contrary to s 91H(2) of the Crimes Act 1900 (NSW), and two drug offences contrary to ss 10(1) and 11(1) of the Drug Misuse and Trafficking Act 1985 (NSW). He was sentenced in the District Court by Colefax SC DCJ to a total period of imprisonment of 3 years and 4 months, with a non-parole period of 2 years for the counts of possession of child abuse material. The sentencing judge found that the drug offences were of a trivial nature and was satisfied it was inexpedient to inflict any punishment on the applicant for those offences.

Mr Newman appealed on four grounds:

(1) That the applicant was not afforded procedural fairness with respect to the finding of the sentencing judge that the applicant was not genuinely remorseful;

(2) That the sentencing judge erred in making the finding that the applicant was not remorseful for his offending;

(3) That the sentencing judge erred in finding that the applicant’s prospects for rehabilitation were hampered by the likelihood he would not regain access to his children; and

(4) That the sentence was otherwise manifestly excessive.

The Court (Payne JA, Johnson and Campbell JJ) dismissing the appeal, held:

In relation to Grounds 1 and 2:

It is for the accused to prove, on the balance of probabilities, mitigating circumstances in favour of the accused. The onus of proving remorse was on the applicant: [29]-[30].

R v Olbrich (1999) 199 CLR 270; [1999] HCA 54; Filippou v The Queen (2015) 256 CLR 47 applied.

There was no denial of procedural fairness in this case. The sentencing judge found that it was unlikely, on the balance of probabilities, that the applicant was genuinely remorseful for his offending conduct.

The sentencing judge was entitled to exercise considerable caution in relying upon untested assertions in Dr Blake’s reports in the absence of sworn evidence from the applicant. [25].

R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369; Singh v R [2018] NSWCCA 60 applied.

Further, it was not incumbent upon the sentencing judge to forewarn the applicant that his Honour may not accept indirect evidence of the applicant’s remorse. This was not a case in which the sentencing judge led the offender to believe that a favourable finding of remorse would be made: [26]-[27].

Chong v R [2017] NSWCCA 185 applied.

The sentencing judge’s conclusions about remorse were factual reasons for the rejection of the genuineness of the applicant’s contrition, rather than a refusal by the sentencing judge to consider the applicant’s remorse post the commission of the offences: [23], [33]-[34].

R v Johnston [2005] NSWCCA 80 considered.

R v Booth [2009] NSWCCA 89 applied.

In relation to Ground 3:

It is a well-known principle of family law that the interests of children in a relationship are paramount. The finding by the sentencing judge that the applicant was unlikely to have any meaningful contact with his children for some time was not speculation or taking into account an irrelevant consideration, particularly given that the evidence of Dr Blake noted that the applicant’s criminal behaviour was connected to his clinical depression, and his clinical depression was connected to the lack of contact with his children. Therefore, the rehabilitation prospects of the applicant may be affected by the likely lack of contact with his children: [39]-[44].

In relation to Ground 4:

The statistics from JIRS may serve as a yardstick by which a sentencing judge may assess a proposed sentence and appellate court may assess a challenge to that sentence. In this case the statistics are a blunt tool for assessing whether or not the sentence was manifestly excessive: [48]-[50]. The sentencing pattern in comparable cases does not indicate that the applicant’s sentence was manifestly excessive: [56].

Fitzgerald v R [2015] NSWCCA 266; R v Porte [2015] NSWCCA 174; (2015) 252 A Crim R 294; R v De Leeuw [2015] NSWCCA 183 considered.

Judgment

1. THE COURT: On 16 November 2016, the applicant pleaded guilty to an indictment containing seven counts of possession of child abuse material contrary to s 91H(2) of the Crimes Act 1900 (NSW). Two offences contrary to ss 10(1) and 11(1) of the Drug Misuse and Trafficking Act 1985 (NSW) were included on a certificate pursuant to s 166(1)(b) of the Criminal Procedure Act 1986 (NSW). The applicant had pleaded guilty at the first available opportunity in the Local Court.

2. On 11 May 2017, the applicant was sentenced at the Parramatta District Court by Colefax SC DCJ. The maximum penalty for possessing child abuse material contrary to s 91H(2) of the Crimes Act is 10 years imprisonment. There is no standard non-parole period. The maximum penalty for each of the offences contrary to ss 10(1) and 11(1) of the Drug Misuse and Trafficking Act is 2 years imprisonment.

Relevant facts

3. In November 2015, Mr Newman was living at a township near Wagga Wagga with his female partner and their three children aged 4, 6 and 7 years. He was then 37 years old.

4. The Child Exploitation Internet Unit attached to the NSW Police State Crime Command Child Abuse and Sex Crime Squad received information concerning Mr Newman’s internet usage. On 23 November 2015, police executed a search warrant at Mr Newman’s home. Mr Newman was present during the execution of the warrant.

5. During the search, police found a number of items of interest including laptops, electronic tablets, mobile phones, computer hard-drives and DVDs. Mr Newman co-operated with the police throughout the search, including revealing that there were some old laptops in the house and another in the garage as well as some cannabis in a shed along with an item commonly known as a bong. He told police, at the time of the search, that he looked at naked children but that was “as far as it goes”. Mr Newman further assisted the police by providing passwords for various devices.

6. As a result of the search, seven devices were seized which were later found to contain child abuse material. These seven items were; (a) a white iPhone 5 found in the personal possession of Mr Newman; (b) a green iPhone with a damaged screen found in the hallway; (c) a Toshiba laptop with a damaged screen found in the garage; (d) a TDK brand DVD also found in the garage; (e) a Dell laptop found in the rear bedroom; (f) an HP laptop also found in the rear bedroom; and (g) a Western Digital hard drive found in the garden shed.

7. An understanding of the scope of the applicant’s offending conduct requires reference to the Child Exploitation Tracking System (CETS) Scale Classification, which grades child abuse material in accordance with CETS guidelines:

1. Category 1 of the CETS Scale captures depictions of children with no sexual activity such as nudity, surreptitious images showing underwear, nakedness, sexually suggestive posing, explicit emphasis on genital areas, and solo urination.

2. Category 2 captures non-penetrative sexual activity between children or solo masturbation by a child.

3. Category 3 captures non-penetrative sexual activity between a child or children and an adult or adults. It includes mutual masturbation and non-penetrative sexual activity.

4. Category 4 captures penetrative sexual activity between a child or children, or between a child or children and an adult or adults. It includes but is not limited to intercourse, cunnilingus and fellatio.

5. Category 5 captures sadism, bestiality or humiliation (such as urination, defecation, vomit, bondage, etc.).

8. The following unchallenged facts were found by reference to the CETS Scale:

1. On the white iPhone 5, 508 images were identified by police as child abuse material. Of these 508 images: 406 fell into Category 1; 7 were in Category 2; 20 were in Category 3; 70 were in Category 4 and 5 were in Category 5. In addition, 3 separate video files were examined, all of which fell into Category 1.

2. On the green iPhone found in the hallway, 344 images were identified as child abuse material. Of the 344 images, 343 fell into Category 1. One of the images was a Category 5 image.

3. On the Toshiba laptop, 300 images were identified as child abuse material. Of the 300 images: 237 were in Category 1; 11 were in Category 2; 13 were in Category 3; 37 were in Category 4 and 2 were in Category 5. In addition, 27 video files contained child abuse material. Of the 27 videos: 3 were Category 1 videos; 1 was a Category 2 video; 2 were Category 3; 17 were Category 4 and 4 were Category 5.

4. On the Dell laptop, 6 images were identified as child abuse material. All 6 were classified as Category 1. In addition, 602 video files were retrieved from the computer. All 602 were found to be in Category 1.

5. On the TDK brand DVD, 3 video files were found to be child abuse material. All 3 were in Category 4.

6. On the HP laptop computer, one child abuse material image was found. It was Category 1.

7. On the Western Digital hard drive, 300 images were identified as child abuse material. Of the 300 images examined, 299 were in Category 1. The other image was a Category 2 image. 37 videos were viewed: 1 was in Category 1; 2 were in Category 2; 4 were in Category 3 and 30 were in Category 4.

9. In relation to the drug offences, the police found one gram of cannabis in the applicant’s garage. This constituted the “possess prohibited drug” offence. Located with the cannabis was a white glass water pipe commonly known as a bong, which the applicant indicated that he used to smoke cannabis. This constituted the “possess prohibited equipment” offence.

Findings of the sentencing judge

10. The sentencing judge found that the objective seriousness of the offending conduct was “toward but not actually at the middle of the range for offences of this kind”. His Honour indicated that the two drug related offences were at the bottom of the range for offences of their kind.

11. The applicant did not give evidence at the sentencing hearing. A forensic psychologist, Dr Roger Blake, who prepared a report for the applicant, was the principal source of evidence about the applicant’s subjective circumstances. The applicant had a troubled childhood, including sexual abuse perpetrated on him as a child. He was likewise an unhappy adult with a history of self-harm, pornography addiction and abuse of cannabis.

12. Dr Blake diagnosed the applicant with borderline personality disorder, cannabis addiction and a major depressive disorder. Dr Blake’s opinion was that there was a link between the applicant’s offending behaviour and his mental condition.

13. The sentencing judge found that although the applicant recognised that child pornography was damaging to children, he took no active steps to address his deviant behaviour until after the police search in 2015.

14. The applicant’s relationship with his partner ended as a result of his being charged. His partner moved with the children to another State and initiated proceedings to prevent the applicant having access to his children.

15. The sentencing judge found that the stress the applicant had faced, and is likely to face for a considerable time, from having no contact with his children was likely to have a negative effect on any treatment he may receive.

16. His Honour concluded that the applicant had a medium risk of reoffending.

17. The sentencing judge made the following findings:

1. The applicant had no record of prior offending. His Honour noted that an absence of prior offending is of less significance for s 91H(2) offences.

2. A plea of guilty was entered at the first available opportunity and thus a 25 per cent sentencing discount reflecting the utilitarian value of that plea should be allowed.

3. General deterrence was of paramount significance.

4. No sentence other than a sentence of full-time custody was appropriate.

5. The sentencing judge found special circumstances based primarily on the applicant’s mental health issues.

18. His Honour sentenced the applicant on each count under s 91H(2) of the Crimes Act to a non-parole period of 2 years to date from 21 April 2017, expiring on 20 April 2019, and a balance of term of 1 year 4 months from 21 April 2019, expiring on 20 August 2020; being a total period of imprisonment of 3 years and 4 months. Each of the sentences was wholly concurrent. His Honour made a destruction order regarding the child abuse material.

19. His Honour found that the drug offences were of a trivial nature and, pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW), was satisfied that it was inexpedient to inflict any punishment on the applicant.

Consideration of grounds of appeal

Grounds 1 and 2

20. The first ground of appeal was that “the applicant was not afforded procedural fairness with respect to the finding of the learned sentencing judge that the applicant was not genuinely remorseful”. The second ground of appeal was that “the learned judge erred in making the finding that the applicant was not remorseful for his offending”. It is convenient to deal with these grounds together.

21. Section 21A(3)(i) of the Crimes (Sentencing Procedure) Act provided:

“21A Aggravating, mitigating and other factors in sentencing

…

(3) Mitigating factors

The mitigating factors to be taken into account in determining the appropriate sentence for an offence are as follows:

…

(i) the remorse shown by the offender for the offence, but only if:

(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both),

…”

22. The applicant submitted that he was denied procedural fairness because the Crown did not specifically raise the issue of remorse and the sentencing judge did not indicate that he was contemplating finding that the applicant had not demonstrated remorse.

23. On the issue of remorse, his Honour found that:

“Although Mr Newman clearly recognised that the child abuse pornography was damaging to children, he took no active steps to address this deviant behaviour until December 2015 (and after the police searched his premises) when he engaged with Dr Blake.

…

I am not persuaded that there is genuine remorse. If there had been genuine remorse then one would have expected Mr Newman to have taken steps much earlier in time to address the conduct which he acknowledges is severely harmful to children yet he did not do so.”

24. Counsel for the applicant submitted that Dr Blake’s reports constituted evidence of remorse in fulfilment of the qualifying limbs of s 21A(3)(i). Counsel for the applicant further submitted that the requirement of s 21A(3)(i)(i) of the Crimes (Sentencing Procedure) Act is that an accused person provide evidence of remorse, but that does not require the accused person to give evidence of remorse.

25. The sentencing judge was entitled to exercise considerable caution in relying upon untested assertions in Dr Blake’s reports in the absence of sworn evidence from the applicant: R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 at [58]-[59]; Singh v R [2018] NSWCCA 60 at [31]. His Honour was entitled to conclude that the applicant, by these reports, had not “provided evidence that he or she has accepted responsibility for his or her actions” within the meaning of s 21A(3)(i).

26. In Chong v R [2017] NSWCCA 185, Basten JA (Harrison J agreeing) explained the content of procedural unfairness in this context:

“[5] Procedural unfairness involves the denial to an offender of an opportunity to deal with material adverse to his or her interests. Justifiable claims of unfairness on sentencing where the offender has not given evidence can arise only in limited circumstances. For example, it will usually not be possible for an offender who has not given evidence of remorse to complain that the sentencing judge did not accept indirect evidence, such as statements to a psychologist. However, claims of unfairness can arise in circumstances where the judge has made a finding of fact adverse to the offender, which was not sought by the prosecutor and which therefore might reasonably not have been anticipated by the offender. Similarly, where the judge, having led the offender to believe (the offender reasonably relying upon the belief) that no such finding would be made, then makes an adverse finding, it may be held that the sentencing was procedurally unfair.” (citations omitted)

27. This is a case where an offender who has not given direct evidence of remorse cannot legitimately complain that the sentencing judge did not accept indirect evidence, being the applicant’s statements of remorse to the community corrections officer and to Dr Blake. This is not a case where the sentencing judge led the offender to believe that a finding of remorse would be made.

28. While it is correct, as the applicant submitted, that counsel for the Crown made no oral submissions specifically addressing the question of remorse, and the issue was not specifically raised by the sentencing judge during the sentencing hearing, the fact that Colefax SC DCJ declined to take into account the submissions that the applicant put forward on remorse does not amount to making an adverse finding of fact not sought by the prosecutor.

29. It is for the accused to prove, on the balance of probabilities, mitigating circumstances in favour of the accused (R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at 281 per Gleeson CJ, Gaudron, Hayne and Callinan JJ):

“[27] As to the standard of proof that should be applied, we would adopt what was said by the majority in R v Storey - that a sentencing judge

‘may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.’”(citations omitted)

30. This principle has been applied in the context of the mitigating factors in s 21A(3) of the Crimes (Sentencing Procedure) Act by the High Court in Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29. As French CJ, Bell, Keane and Nettle JJ held:

“[66] …As Olbrich made clear, where an offender asserts a fact favourable to the offender and the Crown contests it or the court is not otherwise disposed to accept it, it is incumbent on the offender to establish the fact on the balance of probabilities.” (citations omitted)

31. The onus of proving remorse was on the applicant. The sentencing judge may ultimately have found a matter upon which the applicant bore the onus proven or not proven on the balance of probabilities. It was not incumbent on the sentencing judge to forewarn the applicant that he may not accept indirect evidence of the applicant’s remorse given in Dr Blake’s reports. There was no statement by the sentencing judge which could have led the offender to believe that a favourable finding about remorse would be made.

32. There was no denial of procedural fairness in this case. The sentencing judge was not persuaded that there was genuine remorse. The sentencing judge found that it was unlikely, on the balance of probabilities, that the applicant who casually dismissed his viewing of child abuse material as looking at naked children but “that’s as far as it goes” at the time of being arrested had shown genuine remorse. His Honour was not prepared to conclude that remorse had been shown based on the indirect evidence contained in Dr Blake’s psychological reports.

33. The applicant also submitted that the finding of the sentencing judge set out at [23] above was affected by error of principle by reference to R v Johnston [2005] NSWCCA 80 at [28]. That case concerned a number of offences of break, enter and steal under s 112(1) of the Crimes Act. In rejecting contrition as a mitigating factor, the sentencing judge had focused upon the offender’s attitude of disregard for the victims of his offending when the offence was committed. The Crown conceded that such an approach was erroneous. Santow JA (Bell and Howie JJ agreeing) said:

“[28] Concededly there was error on the part of the sentencing judge. This was in judging absence of contrition only at the time of commission of the offence, without regard to what evidence there might be of contrition at a later date. Here there was such later evidence of contrition which appeared to be genuine and the beginning only of progress towards doing rehabilitation. Error having been shown, this Court should reconsider the sentence, taking contrition and any other relevant factors into account.” (emphasis in the original)

34. The Crown conceded in the present case that such a narrow focus would constitute error in accordance with Santow JA’s dictum. The Crown submitted, however, that the sentencing judge was not so narrowly focused, and his conclusion as set out at [23] above was no more than a factual reason for the rejection of genuine contrition.

35. The Crown submission should be accepted. In R v Booth [2009] NSWCCA 89 at [42], Simpson J, said, “each time the material is viewed the offender was reminded of and confronted with obvious pictorial evidence of that exploitation and abuse, and the degradation it causes”. That statement was made in the context of identifying factors relevant to the assessment of objective seriousness. But it demonstrates that offences of possession of child abuse material are likely to be underpinned by a course of conduct over a period of time. This is especially so where, as here, there are a relatively large number of images (over 1,000) spread over a number of devices. In such cases particular factual questions about the persuasiveness of evidence tendered to establish contrition are likely to arise.

36. The evidence led on the applicant’s behalf on the question of remorse was that the offender had sought psychological treatment for the conduct demonstrated by the offending. His Honour made a factual finding that psychological treatment had been sought prior to sentencing. It was relevant in addressing the applicant’s submission about remorse for the trial judge to weigh and assess, in the process of evaluation, whether that evidence might have been more persuasive had the help been sought before, rather than after, detection of the offending by the police. It was also relevant to take into account the language of casual dismissal uttered by the applicant at the time of detection of the offending set out at [32] above.

37. The sentencing judge was entitled to find that the applicant had not proven genuine remorse on the balance of probabilities. Grounds 1 and 2 should be dismissed.

Ground 3

38. The third ground of appeal was that the learned sentencing judge erred in finding that the applicant’s prospects for rehabilitation were hampered by the likelihood he would not regain access to his children. The applicant submitted that:

1. The sentencing judge’s speculation about whether the Family Court would likely not allow the applicant to have contact with his children for a “considerable time” was erroneous; and

2. The sentencing judge’s finding that the applicant’s prospects of rehabilitation rested significantly on his ability to see his children was erroneous.

39. Counsel for the applicant noted that whether or not he would have access to his children was a matter for the Family Court of Australia. It was submitted that by speculating about the likely outcome of Family Court proceedings, the sentencing judge fell into error. The applicant drew an analogy with the risk of deportation for serious offences under the Migration Act 1958 (Cth), a factor which has been held to be irrelevant to sentencing in NSW: R v Pham [2005] NSWCCA 94 at [13]; R v Kristensen [2018] NSWCCA 189.

40. The Crown submitted that whether or not the applicant would have access to his children was a relevant sentencing consideration. At the time of sentencing, the Family Court had not granted any form of access to the applicant. It is a well-known principle of family law that the interests of children in a relationship are paramount. The finding that the applicant was unlikely to have any meaningful contact with his children for some time was not speculation or taking into account an irrelevant consideration.

41. The applicant submitted that the finding that the applicant’s access to his children would be a “significant pillar” of his rehabilitation prospects was not supported by the evidence. The applicant noted that the entirety of the treatment undertaken by the applicant had occurred during a period of separation from his children.

42. What the sentencing judge held was:

“Dr Blake is of the view that [the applicant] has made progress in the treatment which he has received but that he remains in poor mental health and is struggling to cope.

Part of [the applicant’s] problems concerns the stress he is undergoing at having no contact with his children. This is likely to be an ongoing stressor for him because it seems on the cards – to put it mildly – that it is unlikely that he will have any meaningful access to his children for any considerable time to come.

This particular stressor is of such quality that in my opinion it is likely to have a negative effect on such treatment as he has received and may receive in the future.

In my opinion he has a medium risk of reoffending.”

43. The evidence of Dr Blake noted that there was a connection between the applicant’s criminal behaviour and his clinical depression, and that the applicant continued to experience “a major depressive disorder as connected to…intense grief through no contact with his children…”.

44. The reason why the analogy with deportation is inapposite in this case is that an important reason why deportation may not be taken into account in sentencing is that it is a matter for the Commonwealth Executive, subject to review within the Constitutional structure. The present exercise, identifying the applicant’s prospects of rehabilitation, involves, at least in part, findings about future events, the outcome of which cannot be known. In this case those events involve, in part, a judicial determination to be made by another court. An assessment must nevertheless be made, where it can be, on the available evidence about those future matters. It was not an error, in performing the future-looking assessment called for, for the sentencing judge to conclude that it was more than “on the cards” that the applicant would not have any meaningful access to his children for a considerable time to come.

45. It was plainly open to the sentencing judge, given the evidence of Dr Blake, to conclude that the applicant’s ongoing separation from his children may affect his rehabilitation prospects. In assessing the risk of reoffending the sentencing judge was entitled to take into account the application which had been made by the applicant’s former partner to the Family Court, the fact that the Family Court had not granted any form of access to the applicant at the time of sentencing and the principle of family law that in making a parenting order the interests of the child are paramount: 65AA of the Family Law Act 1975 (Cth).

46. The findings made regarding the applicant’s prospects of rehabilitation were open to his Honour. Ground 3 should be dismissed.

Ground 4

47. The fourth ground of appeal was that “the sentence was otherwise manifestly excessive”. When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]:

1. appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases;

2. intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error;

3. it is not to the point that this Court might have exercised the sentencing discretion differently;

4. there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and

5. it is for the applicant to establish that the sentence was unreasonable or plainly unjust.

See Obeid v R [2017] NSWCCA 221 (R A Hulme J; Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) at [443]; Hughes v R [2018] NSWCCA 2 at [86] per Payne JA, R A Hulme and Garling JJ.

48. The applicant submitted that because of the combination of errors in the preceding grounds, the objective gravity of the offending, and the mitigating matters, the sentence imposed was manifestly excessive.

49. The applicant submitted that, in light of the circumstances of the case, the sentence was not in line with sentencing statistics kept by The Judicial Information Research System (JIRS). Statistics may serve as a yardstick by which a sentencing judge may assess a proposed sentence and an appellate court may assess a challenge of manifest excess: R v Pham (2015) 256 CLR 550; [2015] HCA 39 at [47] per Bell and Gageler JJ.

50. The applicant submitted that the JIRS statistics show that:

1. 65 per cent of offenders sentenced for offending pursuant to s 91H(2) receive a total effective sentence of 30 months or less; and

2. 81 per cent of offenders received a non-parole period of 18 months or less.

51. The statistics, which do not include information as to the pleas of the offenders, the number of images and/or videos possessed by the offenders, or the categorisation of those images and/or videos, are a blunt tool for assessing whether or not the sentence was manifestly excessive: Medcalf v R [2016] NSWCCA 209 at [46]. The statistics are for these reasons of only marginal utility in this case.

52. The applicant also submitted that the sentences imposed in R v Porte [2015] NSWCCA 174; (2015) 252 A Crim R 294 and R v De Leeuw [2015] NSWCCA 183 demonstrated that the applicant’s sentence was manifestly excessive.

53. Whilst potentially comparable cases may provide the Court with guidance and a useful yardstick, their limitations must be recognised: Hili v The Queen at [54]. Neither case is of any real assistance to the applicant.

54. In R v Porte, the applicant was sentenced for both Commonwealth and State child abuse material offences and a weapons offence. A 12 month period of imprisonment was fixed for the Commonwealth offence. A partly concurrent non-parole period of 15 months was fixed for the State offences with a balance of term of 15 months. Taking both sentences into account, the minimum period in custody was 1 year and 6 months. The offender in R v Porte had a number of factors in his favour. He was assessed as low-risk for reoffending. He had a persistent medical condition requiring blood thinners that would complicate his incarceration. He had no prior criminal history and he had taken steps to promote his own rehabilitation. Porte provides little assistance to the applicant.

55. R v De Leeuw also involved a combination of Commonwealth and State child abuse material offences. Overlapping periods of 21 months in total were imposed for the Commonwealth offences. A partly concurrent non-parole period of 15 months was fixed for the State offences with a balance of term of 15 months. Taking both sentences into account, the minimum period in custody was 1 year and 9 months. The offender in R v De Leeuw had been a victim of “ritual and sexual abuse” in childhood, was of prior good character and had taken steps towards rehabilitation. Whilst the non-parole period imposed by the sentencing judge here was 3 months longer than the minimum period in custody in De Leeuw, the difference does not lead us to conclude that the sentence imposed here was unreasonable or plainly unjust.

56. In Fitzgerald v R [2015] NSWCCA 266, which considered the relevant authorities, Hoeben CJ at CL found that:

“[50] …What that sentencing pattern reveals is a range of head sentences of imprisonment between 18 months and 5 years after a discount for a guilty plea.”

57. Porte and De Leeuw are thus each at the bottom of the sentencing range identified in Fitzgerald. In the present case, the sentence was not manifestly excessive. Ground 4 should be dismissed.

58. Finally, following the hearing of the appeal, further submissions were made by the applicant to the effect that if only Ground 2 were to be made out on appeal, the matter should not be remitted to the District Court for consideration there. In that instance, the applicant submitted, the Court of Criminal Appeal should re-exercise sentencing discretion and impose a different, lower sentence. Given the conclusion we have reached concerning Ground 2 that issue does not arise.

Orders

59. The following orders should be made:

1. leave to appeal against sentence granted;

2. appeal dismissed.

**********

Decision last updated: 28 September 2018