O'Sullivan v The Queen

[2015] NSWCCA 329

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	O’Sullivan v R [2015] NSWCCA 329
Hearing dates:	3 August 2015
Decision date:	21 December 2015
Before:	Gleeson JA at [1]; Adams J at [2]; Fagan J at [47].
Decision:	1. Leave to appeal granted. 2. Appeal dismissed.
Catchwords:	CRIMINAL LAW – sentence appeal – breach of conditions of extended supervision order – additional criminal offences – possession of child abuse material – seriousness – extent of indicated accumulation – whether aggregate sentence manifestly excessive
Legislation Cited:	Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW), s 12 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(n), s 21A(2)(j) Crimes (Serious Sex Offenders) Act 2006 (NSW), s 7(4) Crimes Act 1900 (NSW), s 91H(2) Criminal Appeal Act 1912 (NSW), s 6(3)
Cases Cited:	McEwen v Simmons & Anor [2008] NSWSC 1292 Pearce v R [1998] HCA 57; 194 CLR 610 Sivell v R [2009] NSWCCA 286 State of New South Wales v O’Sullivan [2009] NSWSC 704
Category:	Principal judgment
Parties:	Daniel Ron O’Sullivan (Applicant) Regina (Respondent)
Representation:	Counsel: N Noman SC (Applicant) M Johnston (Respondent)   Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent/Crown)
File Number(s):	2012/303403
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 5 September 2014 Before: Yehia DCJ File Number(s): 2012/303403

Judgment

1. GLEESON JA: I agree with the orders proposed by Adams J that leave to appeal should be granted, but the appeal should be dismissed. I agree with the reasons of Adams J, except with respect to Ground 1 insofar as the applicant asserted error by the sentencing judge when dealing with the significance of the professional recommendations for the use of anti-libidinal medication by the applicant. I also agree with the reasons given by Fagan J.

2. ADAMS J:

Introduction

3. The applicant, with an extensive criminal record involving convictions for sexual offences committed against children, was, on 22 July 2009, subjected to an extended supervision order pursuant to the Crimes (Serious Sex Offenders) Act 2006 (NSW) (now the Crimes (High Risk Offenders) Act 2006 (NSW)) for five years from 18 May 2009. That order required the applicant to comply with a number of conditions, any breach of which would be an offence under s 12 of the latter Act. He was charged with three breaches of the supervision order, one of which was constituted by the commission of three substantive offences involving the possession of child abuse material, contrary to s 91H(2) of the Crimes Act 1900 (NSW). The other two breaches were, respectively, of conditions of the supervision order (a) that he comply with directions of his Community Corrections supervisor (relevantly, to provide internet user details) and (b) that he not make contact with children under 16 without an approved adult being present. He was brought before the District Court on the three s 91H(2) charges and for the three offences of breaching his supervision order, at the one time. He pleaded guilty to all charges and was sentenced to an aggregate term of 8 years and 3 months imprisonment with a non-parole period of 6 years and 3 months. He seeks leave to appeal against his sentence.

Offences

4. In respect of the three offences under s 91H(2), they comprised images found on a DVD, a flash drive and a laptop, those in each medium being the subject of a charge. The indicative sentence in respect of each of the DVD and the flash drive material was 4 years imprisonment and, in respect of the laptop material, 2 years imprisonment. For the breaches of the extended supervision order, the indicative sentences were, for the commission of a criminal offence (namely those contrary to s 91H(2)), 12 months imprisonment, failing to provide internet details, 9 months imprisonment and contacting children under 16, 18 months’ imprisonment. So far as the first of the breach offences is concerned, the primary judge indicated that, had individual sentences been imposed, the sentence would have been concurrent with one of the s 91H(2) offences. Otherwise, the extent of accumulation was moderated by considerations of totality. Each of the indicative sentences had been reduced by 25 per cent, reflecting the utilitarian discount for early pleas. It should be accepted that this discount carried through to the aggregate sentence.

5. The applicant relies upon the following grounds –

(i) The learned sentencing judge erred by taking into account inaccurate, extraneous and out of date material from the reports tendered by the Crown;

(ii) The learned sentencing judge erred by double-counting the aggravating feature of 'breach of conditional liberty' for the offences of breach extended supervision order;

(iii) The sentencing judge erred by finding that the objective seriousness of the three offences of possess child abuse material (s91H(2)) offences was “very high”;

(iv) The aggregate sentence was manifestly excessive and failed to take into account totality;

(v) The effective aggregate sentence was manifestly excessive in relation to the three section 91H(2) offences and failed to take into account the principle of totality.

Facts

6. Together with a statement of agreed facts setting out the circumstances of the offences, the Crown tendered a quantity of psychological and psychiatric material which was used for the purpose of the application to the Supreme Court for the extended supervision order which the applicant admittedly breached. This material was tendered by consent and no particular part of it was placed in issue, or, indeed, was, with one exception, the subject of specific submission. The exception, which it is necessary to consider in some detail, related to the recommendation in a number of reports concerning anti-libidinal medication.

7. The circumstances of the offence and the learned primary judge’s findings about them were not controversial in the appeal. It is convenient first to deal with the possession of child abuse material. The following is taken from the primary judge’s reasons. On the laptop hard drive there was one video file described in the agreed statement of facts as, “Male approximately 12 years old, undressing in bathroom, background music playing, not under duress, all clothes removed, then masturbates”. On the Child Exploitation Tracking System (CETS) scale, it fell into category two (non-penetrative sexual activity between children or solo masturbation by a child). In addition to this video file there were 70 picture files, 49 of which fell into CETS scale category one (depicting children, no sexual activity, involving nudity, sexually suggestive poses, explicit emphasis on genital areas and solo urination), 14 files in category two, three files in category three (non-penetrative sexual activity between a child or children and adults) and four files in category four (penetrative sexual activity involving children or both children and adults including but not limited to, intercourse, cunnilingus and fellatio). So far as the DVD is concerned, it contained 11 video files, all falling into category four on the CETS scale. Some of the children are tied by their feet and hands. Overall, many male children are involved, aged between five and 14 years. The flash drive contained 583 picture files, of which 445 fell into CETS scale category one, one file into category two, 32 files into category three, 84 files into category four and 21 into category five (sadism or bestiality, that is, sexual imagery involving pain, humiliation or animals). In total, the applicant possessed one video depicting child abuse at CETS scale category two, 11 videos at CETS scale category four, 494 pictures depicting child abuse at CETS scale category one, 15 pictures depicting child abuse at CETS scale category two, 35 pictures depicting child abuse at CETS scale category three, 88 pictures depicting child abuse at CETS scale category four and 21 animations and cartoons depicting child abuse at CETS scale category six (animation or cartoons depicting sex scale images of one to five), in this case all were in CETS scale category five.

8. The primary judge viewed all the images for herself and noted that a number of them depicted penetrative sexual activity involving young children appearing to be between the ages of 6 and 12, a number depicted a child or children bound with their hands tied behind their back, others portrayed gratuitous cruelty and humiliation, such as children being urinated on and being forced to swallow ejaculate and urine, whilst one particular image, which was a close up, showed the face of a child appearing to be about six years old who appeared profoundly distressed.

9. The applicant was in almost daily contact with his son, Michael, then aged 41 years, who was also a registered child sex offender. There were numerous text messages between them recorded on the applicant’s mobile telephone. They mentioned a number of names of children either to communicate with on the internet or to meet. It is unnecessary for present purposes to set out those communications but I mention the following to demonstrate the context for the offences. The applicant believed that two of the boys were in the United Kingdom and he and his son were discussing ways by which at least one (“Z”) might come to Australia. The applicant told police that he was “18 or something, 17, 18, 16, 17”, but a screenshot on the applicant’s laptop of a MSN chat with this boy showed his profile photograph of the head of a boy approximately 10 years of age with his mouth open, together with an image of the applicant sitting in front of the computer, as captured on his webcam, while he was chatting with the child. The applicant said that it was his son who had the real interest, “a close affinity”. Other parts of their exchanged texts also suggested that Z was a young child. The applicant was able to identify a number of children on the flash drive, with whom he had also chatted on the internet. He was told that one was five, another seven, Z “was about nine or something” and a fourth was, six, seven or eight years old. He had seen photographs of these children.

10. Generally, the applicant asserted to police that he “rarely” accessed the images on his computer and only accessed images of three children on the flash drive. To police he denied knowing anything about the DVD but, as he lived alone and no one else had access, he said, to anything in his house, this denial was plainly untrue; at all events he pleaded guilty to possessing the images that were discovered on it. Although it appears that the children in whom the applicant had an interest were living in the United Kingdom, it seems they were connected with a network with links to the Ukraine, possibly an orphanage. Overall the children were part of what the applicant described as a program “run by monks”. Amongst other SMS conversations between the applicant and his son is the following –

“Michael:	‘I have found one for the 16 yo’
Offender:	‘Okay, where abouts?’
Offender:	‘He would do for the time being.’
Offender:	‘What does he look like? I mean, does he look 16’
Offender:	‘Where did you find him and when.’
Offender:	‘He is well over my age range.’
Offender:	‘So he would have to look pretty bloody good and be just as good in all the other ways.’
Michael:	‘The 16yo from UK. The one I showed you.’
Offender:	‘No way. The one on the program.’
Michael:	‘Yes.’”

11. A 2012 diary seized from the applicant’s home included the following entries –

“Date	Entry
NOTES	‘3-3-12 There is a vague chance I may have an 8 yr old from England. No details yet but hope to have more info soon.’
01/01/2012	‘... layed back to watch TV and videos of young boys.’
02/01/2012	‘May have a meet with a 12 yr old boy at Penrith on Thursday, heres hoping ... I am heading for bed and sleep, after looking at the videos of young boys having sex.’
04/01/2012	‘I will use the Samsung for storing Pics and Videos and a number any young [unknown] can call me on ... the weekly schedule went in, and on it is a date (l hope) to meet 2 young boys ...’
05/01/2012	‘Penrith was for today. Went there on the hope of meeting a 14 yr old boy, but he was a no-show ...’
06/01/2012	‘Wahroonga was my Port of Call for today. Took up three paintings to sell (as a cover to try and find Josh and Jason) ... Michael and I are not having much luck in our endeavours.’
10/01/2012	‘Watched some vids I was given, they are quite good in content but disc quality is poor...’
11/01/2012	‘Was supposed to meet a couple of boys in North Bondi, but it didn't happen ...’
13/01/2012	‘Michael sent me some pics during the movie (It was a quick trip home to look at them. Time is 1:47 a and I am in bed and still looking at the pics.’
16/01/2012	‘Received a heap more pics of Michael, now have over 150 of them. I take a look at them every so often but would rather have the real thing.’
17/01/2012	‘Rang Michael several times as per usual. We are working out a way of getting what we both want. A young boy each.’
19/01/2012	‘Rang Michael several times and he sent me some new pics I now have just on 150. When I get a laptop I will have about 30 videos to watch as well.’
22/01/2012	‘I think Michael is going to help me get a laptop in a couple of weeks.’
27/01/2012	‘Rang Michael a couple of times. He has found a boy at Blacktown, could be for real, hope so.’
27/01/2012	‘City today. Was able to get the iPhone activated.’
06/02/2012	‘Today I bought myself a desktop computer.’
13/02/2012	‘Was told I'll have landline on and internet in next few days (heres hoping).’
15/02/2012	‘I am heading for bed as is Michael. (I think he is finally admitting he is in love with [Z].’
17/02/2012	‘Michael has admitted he is deeply in love with [Z] and [Z] loves him equally which I think is brilliant.’
21/02/2012	‘Rang Michael, he is well. Things are progressing well with [Z].’
28/02/2012	‘Have some more pics of [Z]. He is the most incredible boy I have ever seen.’
01/03/2012	‘Things are progressing well for Michael and [Z]. I couldn't be happier for him.’
03/03/2012	‘Rang Michael. He was talking about an 8 yr old.’
07/03/2012	‘... also rang Michael several times. He is busy looking for a house for himself and [Z] who looks like being here in mid July.’
09/03/2012	‘Made a couple of phone calls for Michael concerning [Z] ... Rang Michael a few times today. We are trying to work out problems with [Z].’
12/03/2012	‘Rang Michael as usual. We talked about [Z].’
13/03/2012	‘Made some calls for Michael re [Z].’
21/03/2012	‘Rang Michael. Still hasn't heard from [Z] isn't looking good he is deeply in love with the boy.’
22/03/2012	‘Michael is distraught, still no contact with [Z]. He has admitted just how much in love with him he is. Hope all comes right.’
23/03/2012	‘Michael is a lot brighter [Z] was online for a little over an hour.’
24/03/2012	‘All is back on track with [Z].’
27/03/2012	‘All is going well with [Z] again, thankfully.’
29/03/2012	‘I went to the Mitchell library to do some research for Michael on Ukranian family life.’
04/04/2012	‘Michael is counting down the days to the arrival of [Z], and so am I. I dearly want to meet a boy who can love someone so deeply. I would be proud to have him as my grandson.’
09/04/2012	‘Rang Michael as normal. He is doing well. His love for [Z] is getting deeper and deeper, which is great.’
15/04/2012	‘Things on the move for Internet. Was able to chat to [Z] today.’
20/04/2012	‘Had a chat with [Z], hope to chat to him again.’
21/04/2012	‘Took lessons with [Z]. I do hope he likes me, as I'm growing to love him. Feeling down and lonely, but will recover.’”

12. As the primary judge noted, the applicant claimed to the police that he and his son became aware that children were being abused by a group of monks in a monastery in the Ukraine and claimed they were simply trying to get as much information about the group as they could, so that they could take it to the authorities in an effort to assist these boys and prevent their abuse. The applicant had participated in what appears to have been forms of sexual role play so that he could, he claimed, in effect procure the trust of the so called priests and monks to find out more for the authorities. He said that he had not in fact alerted the authorities because the people in the Ukraine “knew every single thing about me” and suspected they might have connections to the judicial system in Australia. The applicant’s attempts to give an innocent explanation for his actions were brazenly dishonest and, with respect, it is scarcely surprising that the primary judge characterised his account to police as a “series of lies designed to conceal the fact that [the applicant’s] communication with and about these boys was motivated by a sexual interest in them.” He agreed that the diary entries were his but denied that he was attracted to young boys, although he said he used to be. Her Honour noted that essentially his claim was that this attraction had ceased because he had completed the CUBIT program at Long Bay Gaol. Her Honour concluded that the seized material demonstrated beyond doubt that he was motivated by his continued sexual interest in children, notwithstanding completion of this program.

13. Dealing with possible aggravating factors, the primary judge concluded that, although the applicant communicated with his son, also a registered sex offender, during the period the offences were committed and that they discussed the images, some of the boys that had been depicted and they were both communicating with a number of young boys through internet chat, the evidence did not establish that the applicant was part of a collaborative network in the sense, as I understand her Honour, a planned or organised criminal activity vide s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 (NSW). In short, her Honour concluded that there was no planning or organisation that went beyond that which was inherent in the offences. Nor did her Honour accept the contention of the Crown that the boys under 16 whom he contacted (by internet) without an approved adult present (giving rise to one of the charges of breach of the extended supervision order) were either physically or intellectually disabled, or that the applicant believed them to be so. Her Honour noted that the applicant was not responsible for posting the images that were the subject of the s 91H(2) charges and did not profit from the offences.

Prior offences

14. The applicant’s prior offences were detailed by the primary judge as follows –

“The offender first came before the Court in 1962 for two counts of indecent assault upon a male. In 1963, he was convicted of wilful and obscene exposure. In 1968, he was dealt with in Brisbane District Court on two charges of committing an act of gross indecency with a male person. He received a sentence on that occasion of imprisonment of eighteen months. In 1973, at Orange District Court, he was convicted of an indecent assault on a male person and sentenced to two years' imprisonment.

In 1977, at Sydney District Court, he was dealt with on charges of indecent assault on a male person. He received a sentence of imprisonment of three years six months and two years six months to be served cumulatively. In 1984, at Newcastle District Court, he was sentenced to a term of four years' imprisonment for an offence of indecent assault upon a male. In 1993, at Queanbeyan District Court, he was convicted of one count of indecent assault, for which he was placed on a three year good behaviour bond.

In 1997, at Sydney District Court, he was dealt with for offences of aggravated indecent assault and incite act of indecency. He was dealt with by of term of imprisonment of four years with a minimum term of two years.

Finally, in 2004, he was convicted of a number of counts of sexual intercourse with a person under 16, namely two boys aged 12. He was sentenced to a total term of imprisonment of five years six months with a non-parole period of four years six months.”

15. At the conclusion of this sentence the applicant was released subject to an interim supervision order and, ultimately, an extended supervision order for a period of five years to commence from 18 May 2009, subject to the conditions (amongst others) to which I have already referred: see State of New South Wales v O’Sullivan [2009] NSWSC 704. Price J noted a number of breaches of parole and a good behaviour bond during the course of his history and summarised it as revealing “a longstanding pattern of sexual offending against prepubescent boys.”

Subjective features

16. The applicant was almost 67 years of age at the time of the offences and will shortly turn 70. He was born in Queensland where his father ran a cattle property. At the age of 26 he married a woman he met in a psychiatric hospital. This marriage, although it produced two children, lasted only three years. The applicant has not had a significant relationship since. The applicant has been regular contact with his son by way of telephone and his daughter, who resides in Queensland and has confirmed to the community corrections officer that she contacted her father at least two or three times a week. Although physical contact with his son was prohibited, he has maintained regular telephone contact with him. It appears that the applicant’s relationship with his father was supportive but he has been estranged from his mother with no contact for some 40 years. He has limited support in the community. He left school at the age of 15 and has been employed mainly as a labourer. In the mid-1960s, following a period of incarceration for his first sexual offence, the applicant was admitted to a psychiatric hospital for a period of two years but he is not currently seeking any medical assistance in relation to any mental health issues. There was no evidence suggesting a major psychiatric disorder in the form of any affective anxiety disorder or psychotic illness. He appeared to function in the normal IQ range.

17. I have mentioned that the applicant completed the CUBIT program whilst in prison. Whilst under supervision he was subject to a community maintenance program through the forensic psychology services. He was assessed as being in the high risk category of offenders. It is fair to note that the applicant had demonstrated what was thought to be positive progress whilst on the CUBIT program, although this has plainly only had limited, if any, practical effect.

18. A pre-sentence report was tendered on sentence. The Community Corrections Officer reported that the applicant maintained that the offences were committed “to prevent children from being harmed” and that his actions were “totally bloody stupid”. This simply repeats the dishonest excuse given to the police when he was interviewed. The acknowledgement of stupidity may be candid and accurate but it demonstrates no understanding of the wrongness of his conduct nor, as the primary judge (rightly) found, any remorse. The fact is, as her Honour noted, the extensive documentation dealing, amongst other things, with the applicant’s communications with Corrective Services, psychologists and psychiatrists for the purpose of the extended supervision proceedings, does not suggest he offered any contrition for his conduct (for all, as I surmise, he may have done during the CUBIT process).

Recommendations as to anti-libidinal medication

19. The written submissions of the Crown prosecutor on sentence noted the following –

“The offender completed a CUBIT program between 7 April 2008 and 25 February 2009. The Forensic Psychologist at the time stated that post-completion of the CUBIT program, the offender has higher self-esteem – but note that this was based on the offender’s self-report. Despite this, at the completion of the CUBIT program, a psychological report dated 6 March 2009 which undertook actuarial analysis indicated the offender was a high risk of re-offending. The offender was offered the opportunity to take anti-libidinal drugs but declined, because he felt he didn’t need that pharmacotherapy [page 3 of the Progress Report to the Attorney General re. extension of supervision order].”

20. In oral submissions at the hearing, the prosecutor said, referring to the applicant’s prior record, that he had been given ample opportunity to rehabilitate and submitted he “has refused anti-libidinal pharmacotherapy”. The judge dealt briefly with this issue –

“As I understand it, the offender has, to date, refused to take such medication. When asked about why he refused to take the medication, the offender told Dr Samuels [in April 2009] that he had not actually refused it, but had heard bad things about it in gaol. He also claimed that he was about to begin a heterosexual relationship and he had concerns that such medication may affect his sexual functioning.”

Her Honour then dealt with the risk factors noted in the reports, his actuarial risks score, his intellectual functioning and then referred to a report of a forensic psychologist, Anna Hoy, of March 2009 –

“Ms Hoy reported that the offender demonstrated progress whilst on the CUBIT program.

According to Ms Hoy, he appeared to have developed insight into his offending behaviour… [and] strongly recommended that he consider anti libidinal medication to assist him in exerting appropriate self control. As noted above, it appears that the offender has not taken up this recommendation.”

21. Her Honour referred to this matter as mentioned in the report of a Dr Hearps of 7 July 2008, where it was noted that the applicant had “demonstrated a pattern of sexual behaviour with pre-pubescent boys over a period of four decades… [and] fulfilled the diagnostic criteria for paedophilia. Dr Herps recommended treatment with libido lowering medication.” Her Honour summarised the position as follows –

“In the reports before me, the offender is assessed as a high risk offender. A recurrent recommendation of those professionals who dealt with him was that he consider anti libidinal medication.”

22. Although at first I was inclined to the view that her Honour’s reference to this subject matter was a mere account of part of the relevant chronology, in light of the way that this matter was put to her by the Crown, as indicating that the applicant has no genuine intention to rehabilitate himself, it seems to me, with respect, that her Honour did view the fact that he had not accepted the recommendations adversely as going to contrition and rehabilitation.

23. However, this matter cannot be dealt with quite so simply. The progress report relating to his period under supervision dated 13 June 2011 states –

“PHARMACOLOGICAL INTERVENTIONS

Upon his initial release into the community in 2009, Mr O'Sullivan was placed on the antidepressant Sertraline, which additionally has a side effect lowering the libido. Mr O'Sullivan currently continues to take this medication, however his psychiatrist, Dr Andrew Ellis informed this Service that he had provided Mr O'Sullivan with the request for a blood analysis some time ago to be assessed for Androcur, an anti-libidinal medication, however was yet to receive an outcome. On 30 May 2011, Dr Ellis provided the offender with another request for blood tests, and the offender was directed by this Service to have those completed. The offender stated to the undersigned that he does not want to take anti-libidinal, nor does he feel that he needs them. However, Dr Ellis later advised this Service that he received the results from the previous blood tests and is in the process of determining Mr O’Sullivan's suitability for anti-libidinal medication.” [Emphasis added.]

24. Dr Samuels in his report of 11 May 2009 stated –

“[5] Your opinion as to the suitability of Mr O'Sullivan for anti-libidinal medication including any Issues relating to the prescription and administration of anti-libidinal medication and the potential limitations of such medication

As far as I can ascertain there are no clear contraindications to Mr O'Sullivan being on anti-libidinal medication. As I have already noted, he will need to have a full workup for such medication and to be trialled on medication. He has indicated a willingness to take such medication as long as it does not interfere in his sexual functioning with Elaine. It often is a fine balance to ensure that normal sexual functioning is retained and deviant thinking and arousal eliminated and the dose of such medication may need to be carefully titrated. Obviously if the medication is causing major side effects, particularly if it is eliminating his sexual function, this would be a factor that could lead him to become non compliant.

[6] The likely time period required in order to trial and stabilise an offender on anti-libidinal medication

It can take some weeks to finalise all the investigations and once the prescriber is sure there are no medical contraindications, within a period of 4-12 weeks one should have a good idea of the appropriate dose and the effects of the medication on deviant arousal as well as any significant side effects mat are evident.”

25. In the CUBIT program report of 6 March 2009 the following appears –

“With regard to more appropriate sexual arousal, Mr O'Sullivan discussed being aroused to sexual thoughts and fantasies about his current partner but that sex was not a priority in this relationship. Despite recommendations to use medication to assist with his sexual self regulation (please see reports written by Dr J. Carne, 3 September 1997 and Dr M. Hearps, 7 July 2008), Mr O'Sullivan is currently opposed to this due to concern it would limit future sexual relationships. When discussed in group he did, however, identify that appropriate self control may become more difficult when not in gaol and that medication may be useful in such a situation.

…

Given the extensive nature of Mr O'SulIivan's sexual disregulation in the past, it is recommended that he strongly consider the use of medication to assist him in exerting appropriate self control and to provide him from relief from any intrusive or concerning sexual interests. In such circumstances, Mr O'Sullivan is encouraged to work with the Community Forensic Mental Health Service: Sexual Behaviours Clinic.”

26. In the psychological risk assessment from the Community Compliance Group dated January 2009 a reference was made to Dr Hearps’ recommendation –

“[23] In the same report, Dr. Hearps made the following recommendations:

‘Mr. O'Sullivan may benefit from treatment with libido-lowering medication, such as an anti-androgen or other hormonal treatment, or an SSRI. Mr O'Sullivan should be physically examined, and a blood work-up performed (including hormone assays), and we have referred him to our GP. Mr. O'Sullivan is currently unwilling to be treated with medication to reduce sex drive, and stated he prefers to rely on the support of his partner and family, to refrain from re-offending. However, he did admit the possibility that medication may be useful, should those supports prove inadequate. (P. 6).’”

27. Price J, when imposing the extended supervision order, said (supra at [39]) –

“There are two reports from Dr Andrew Ellis. The defendant has given informed consent to ‘SSRI’ medication and is taking Zoloft. The likely side effects of that medication is a reduction in unconventional sexual fantasies, urges and masturbation.”

It is perhaps unfortunate that the primary judge was not provided with these reports. However, the judgment of Price J was part of the material produced by the Crown on the sentence proceedings and this passage (as well as the other material dealing with the question) should have been brought to her Honour’s attention by the prosecutor.

28. Mr Johnston of counsel for the applicant on the appeal pointed out that one of the conditions to which the applicant was subjected was the following –

“28 … [The] defendant must accept sex drive reduction, medical treatment or any other therapy, including anti-libidinal treatment, if prescribed by a medical practitioner, as may be provided by CFMHS, Justice Health, and AMHS or any medical practitioner, and must not unreasonably refuse his consent in administering such prescribed drug or therapy.”

Whatever may have been the position prior to the applicant’s release from incarceration (and it is far from clear that any anti-libidinal medication was actually offered at a time when the appropriate tests had been taken so that its medical effects, including side effects, could be assessed and hence whether it was appropriate to be prescribed), at the time of the supervision order he would have been obliged to take the medication had the condition been invoked. There is no evidence that it was invoked, let alone that the applicant had indicated a refusal to comply with this condition.

29. Accordingly, with respect, it seems to me that it was not appropriate to place the fact that the applicant had not taken anti-libidinal medication (although he had taken an SSRI) on the scales adverse to him in relation either to his attitude to offending or the risk of future offending.

30. A related point, a propos the first ground of appeal is the following passage from the primary judge’s reasons, which immediately follows the last paragraph set out above relating to the recommendations about anti-libidinal medication –

“In my view, what is singularly missing in the reports is any expression of true remorse, contrition or even acknowledgement of the profound harm caused to children in the trade of supplying child abuse material for the purveyors of such images.”

31. Mr Johnston submitted that, since the reports to which her Honour referred related to offences prior to the present offences which did not involve either the making or supplying of child abuse material, this absence could not indicate his present attitude to the present offences. At first impression, this appears to be a valid point. However, it is necessary to look at the context for the observation, which was followed immediately by this passage –

“In the most recent report of Community Corrections dated 16 March 2014, the offender, when asked about his attitude to the offending conduct, stated that his actions were ‘totally bloody stupid’. There is no evidence before me to establish that he is remorseful for his offending conduct. Indeed, I find that the offender, whilst perhaps gaining a superficial insight into his offending conduct through his participation in the CUBIT program, continues to lack any genuine and deep understanding of the impact of the offending conduct on the children.

The evidence establishes, in my view, a real likelihood that this offender will reoffend in the future. There is nothing before me that could give the Court any confidence that the offender has any prospects of rehabilitation.”

In my view, the passage to which Mr Johnston refers is, although perhaps awkwardly phrased, intended as a general statement about the applicant’s lack of remorse for any sexually related criminal conduct, and his present position is a continuation of that of the past. This was an entirely justifiable conclusion, as well as an important one.

Double counting

32. Following reference to Sivell v R [2009] NSWCCA 286 where the appellant, whose offences were breaches of prohibition orders made pursuant to the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) was regarded as being in the same position as if he had breached a bond, suspended sentence or parole, for the purposes of s 21A(2)(j) of the Crimes (Sentencing Procedure) Act, the primary judge stated –

“I accept, therefore, that by virtue of the fact that the offender was on an extended supervision order at the time he committed these offences, he was on conditional liberty, thereby constituting an aggravating feature.”

33. Mr Johnston submits that it was not appropriate to take into account, in respect of the offences alleging breaches of the supervision order, that he was on conditional liberty at the time, since it is an inherent characteristic of such an offence that an offender is on conditional liberty. If her Honour had indeed taken this matter into consideration in respect of the breaches of the order, Mr Johnston’s point is well taken. However, it seems to me that a fair reading of her Honour’s reasons demonstrate that the phrase “these offences” was a reference to the sex abuse material offences and not to the breaches of the order. Her Honour introduced the subject matter, after a reference to the likelihood that the applicant might commit further serious offences if he were not kept under supervision, then stated –

“The offender once again comes before the Court having committed serious criminal offences whilst on that extended supervision order. The Crown submits that an aggravating factor is that the offender was on conditional liberty; that is, the extended supervision order, at the time of the commission of these offences.

It was conceded on behalf of the offender that he was on conditional liberty by virtue of being on the extended supervision order.”

34. Her Honour then referred to Sivell and, having noted the matter already quoted, went on to assess “the objective seriousness of the offences” describing the material which was found in the applicant’s possession, referring to the particular issues relevant to an assessment of the objective seriousness of those offences. It was at the conclusion of this discussion that her Honour went on to discuss the 91H(2) offences, stating –

“I find… that the 91H(2) offences are objectively very serious and that the moral culpability of the offender is extremely high. I also find that the breaches of the extended supervision order are a serious example of wilful disregard for the Court based orders. Disturbingly, the breach constituted by the offender communicating with children under 16 demonstrates the offender's continued sexual interest in young boys and his preparedness to act upon that sexual interest by sourcing children or having children sourced for him.”

It follows that I would reject this ground of appeal.

Ground 3

35. This ground of appeal concerns the characterisation of the objective seriousness of the possession by the applicant of the child abuse material as “very high”. It is clear that the distinction between each offence was based upon the medium on which it had been recorded and did not reflect any differentiation that depended upon the nature of the material to which each charge referred. However, it is the case that, in respect of the material on the laptop, there was only one video file which was CETS scale two whilst 49 of the picture files were at scale one, 14 at scale two, 134 at scale three and four at scale four. On the other hand, on the DVD there were 11 video files all at CETS scale four, whilst of the 583 picture files on the flash drive, although by far the majority (445) were at scale one, 84 were at scale four and 21 at scale five. Accordingly, accepting that the only mode of differentiating between each charge was the content on each medium, that on the laptop was rather less serious than that on the other two media, whilst the content of the flash drive, by virtue principally of the 21 picture files at CETS scale five, is the most serious.

36. It was submitted by Mr Johnston that the objective seriousness of the material located on the laptop was not “very high” because of the limited number of the images and their relatively low classification, pointing out that the primary judge implicitly accepted this assessment by indicating an indicative sentence of 2 years for this offence. It is also submitted that the objective seriousness of the material on the DVD was not “very high” because, although the material on the videos were classified at CETS scale four there were only 11 of them. So far as the USB flash drive is concerned, Mr Johnston points out that, although the primary judge referred to the 21 images at CETS scale five as being “animations and cartoons” her Honour later observed that “a small number of images depicting child abuse material were categorised as CETS five” not making reference at this point to the fact that these images were artificial. Counsel submits that the distinction between this kind of image and those of actual children is important when assessing objective seriousness, citing McEwen v Simmons & Anor [2008] NSWSC 1292.

35. Dealing with the assessment of objective seriousness in respect of the material itself, the primary judge said –

“I am also mindful of the principles set out in R v Gent [2005] 162 ACR 29. There are a range of factors that bear upon the assessment of objective seriousness. In that case, four of the factors were set out as the nature and content of the pornographic material, including the age of the children and the gravity of the sexual activity portrayed; the number of images or items of material possessed by the offender; whether the possession or importation is for the purposes of further sale or distribution; and whether the offender will profit from the offences.

In the decision of R v Minehan [2010] NSWCCA 140, Hulme J set out a number of further criteria to be taken into account in the assessment of objective seriousness of offences involving the possession or transmission or dissemination of child pornography. They are set out at para 94 of that judgment. There are 13 factors set out there; I will not repeat them for the purposes of this oral judgment. However, I have considered those factors and will address them in due course. Hulme J also stated that the list of factors is, of course, not closed. Individual cases may always provide further matters relevant to the assessment of objective seriousness.”

38. Describing generally the material, her Honour said –

“During the course of sentencing, I have had the opportunity to view all the images for myself. A number of the images depict penetrative sexual activity involving young children, who appear to me to be between the ages of six and 12 years of age. A number of the images depicted a child or children bound with their hands tied behind their back. Other images portrayed gratuitous cruelty and humiliation, such as children being urinated on and being forced to swallow ejaculate and urine.

In one particular image, which was a close up of a face of a child who appears to be about six years old, the child appeared profoundly distressed. I am of the view that the extent of the cruelty depicted in some of the images increases the objective seriousness of those images. I have also taken into account, in assessing objective seriousness, the age of children depicted in the images. Whilst they were not babies or toddlers, many of the boys depicted in the images appeared to be as young as six years old. In my view, this is a factor that aggravates the seriousness of these offences.”

39. Her Honour went on to discuss the present of aggravating features which the Crown contended and concluded –

“I am not of the view that this case falls into the worst case of offences of this type for the following reasons:

(1) I have found that it was not part of a planned or organised criminal activity;

(2) That the offender was not responsible for posting the images; and

(3) The offender did not profit from the offences.

I find, however, that the 91H(2) offences are objectively very serious and that the moral culpability of the offender is extremely high.”

40. It is true that that the characterisation of the material does not distinguish between the particular sources of the images mentioned. However, her Honour had earlier described a number of other images and the applicant’s knowledge of particular children. I have omitted them for reasons of delicacy. The precise detail is not necessary for present purposes. It is reasonable to accept, perhaps, that the offence concerning the material on the hard drive was not so serious as those on the laptop or the flash drive but this does not mean that it was not also very serious. This is scarcely a matter that lends itself to nice distinctions. The images on each of the media involved many children who were abused in various ways; unless the differences are very substantial, in my view adding up the ways in each category will not demonstrate significant differences in the criminal culpability. It is not difficult or inappropriate in my opinion to assess the objective seriousness of images of the kind obtained by the applicant from the descriptions conventionally used in the CETS classification, though each classification, especially those which refer to actual sexual conduct, is in somewhat general terms.

41. For obvious reasons, detailed description of the material in a particular case in a judgment which is to be widely published is not desirable unless the interests of transparency make it necessary. All that is necessary, in my view, is a description which enables an assessment that fairly explains the degree of seriousness ascribed by the sentencing judge to the material in question. In some cases, such as here, the primary judge described some images in some detail, no doubt to enable the parties, this Court and the general public, to be aware of the kind of material that was involved in the offences for which the applicant is sentenced. Here, the primary judge looked at the material herself. Counsel for the applicant did not suggest that this Court ought also to do so for the purpose of determining the appeal or, in particular, of assessing the correctness of the primary judge’s characterisation of the objective seriousness of each offence. It follows, I think, that the Court should act on the basis that nothing in the images themselves supports the argument that her Honour’s characterisation was mistaken.

42. As the primary judge pointed out, it was an aggravating objective feature that the applicant was subject to an extended supervision order at the time, which had been imposed for repeated sexual offences. To my mind, the fact that the offence was committed whilst the applicant was on an extended supervision order designed to reduce the very high risk that he presented to the community for the commission sexual offences, moved the laptop offence from serious to that of “very serious”, pointing not only to the applicant’s moral culpability but also to the plain risk that he represented to the safety of the community. The relatively lesser seriousness of the laptop offence was reflected in the indicative two year sentence.

43. Overall, the passages quoted above from the reasons of the primary judge, together with the enumeration of the images by reference to the CETS scale, demonstrate that, not only was her Honour not in error in describing the offences as “very serious” and the moral culpability of the applicant as “extremely high”, but was, with respect, plainly correct to do so.

44. The fourth and fifth grounds of appeal may be considered together. The submissions of Mr Johnston focused on the indicative sentences. It is clear that the sentence for the breach of condition four of the extended supervision order was intended to be fully concurrent with the sentence for possessing the material on the DVD. This was obviously for the reason that, as the breach of the condition was the commission of the offence it would be double counting to sentence accumulatively. (I note that concurrency will not usually be sufficient to overcome the principle against double counting: Pearce v R [1998] HCA 57; 194 CLR 610 at [45], [49]. However, this point was not taken and is, in the circumstances here, at all events of little practical significance.) The judge indicated, so far as the other five charges were concerned, that the sentence imposed for each would be partially accumulated. Counsel’s submissions then attempt to analyse the extent of accumulation. This is necessarily speculative and it does not seem to me that it was necessary, at all events, for her Honour to descend to this level of detail. It is evident that an overall sentence may be derived from an almost infinite variation in the dates of commencement of the various sentences that make it up. It seems to me that the only realistic way of dealing with the question of manifest injustice, is to consider the appropriateness of the individual indicative sentences and then whether the aggregate sentence fell outside the appropriate range. Accepting that each of the indicative sentences represents a 25 per cent discount for the utilitarian value of the applicant’s plea, I am unable to see that any of these sentences was not fully justified by relevant sentencing principles or, at the very least, that there is no basis for concluding that they were in error. It is clear that her Honour partially accumulated each of the other five offences to arrive at the resulting non-parole period of 6 years and 3 months with a balance term of 2 years. Such a sentence does not bespeak appealable error.

Conclusion

45. I have pointed out that the primary judge, with respect, erred in relation to the assessment of the significance of the attitude of the applicant to taking anti-libidinal medication. Accepting that there is no proper basis for concluding that the applicant’s attitude to anti-libidinal medication justified an adverse inference about his attitude to the offences or his prospects for rehabilitation, I would nevertheless conclude, on the balance of the material, that the applicant has not demonstrated any genuine, let alone useful insight into his offending and his prospects of rehabilitation are extremely doubtful. The the nature of the abuse material and the character of his communications with Z demonstrates the considerable seriousness of, in particular, the offences against s 91H(2) and the breach of the supervision order constituted by his contact with children under 16 years. The breaches of the conditions of his supervision continued for a considerable time until discovered, essentially by accident, and were calculated to enable him to escape as much as he could the limitations of the supervision program and to enable further criminal activity. Considering all the relevant material for myself, I would certainly impose no lesser sentences than were indicated and no lesser aggregate sentence than that under appeal.

46. The consequence is that I propose that leave to appeal should be granted but, pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW), the appeal should be dismissed.

47. FAGAN J: I agree with the orders proposed by Adams J and I adopt his Honour’s summary of the facts relevant to the appeal. I make these observations of my own with respect to each of the grounds.

48. Three of the counts to which the defendant pleaded guilty were of possession of child abuse material contrary to s 91H(2) Crimes Act 1900 (NSW). They concerned, respectively, the following material (more fully described by Adams J at [7]):

1. Video files and picture files on a Toshiba laptop computer;

2. 11 video files on a Gold DVD and

3. picture files on a flash drive.

49. The remaining three counts to which pleas of guilty were entered were of breaches of conditions of an extended supervision order to which the applicant was subject. Each breach was a contravention of s 12 Crimes (High Risk Offenders) Act 2006 (NSW). The breaches were of the following conditions of that order, respectively:

1. Condition 4, which provided that the applicant “must not commit any offence punishable by a period of imprisonment” during the term of the supervision order. The Commission of the offences against s 91H(2) as referred to at [49] constituted the breach.

2. Condition 3, which required that the applicant comply with “any reasonable direction” given by an officer of the Department of Corrective Services allocated to the applicant’s case. He had been directed on 24 June 2012 to provide details of his internet user names and chat room names and he had failed to do so.

3. Condition 9, which required that the applicant “must not associate or make contact with children under the age of 16 years unless in the presence of an adult previously approved by the department”. Breach of this condition was constituted by the applicant’s MSN chats with boys under 16 years as referred to by Adams J at [9].

Ground 1 – use of material from reports tendered by the Crown

50. Ground 1 is:

“The sentencing judge erred by taking into account inaccurate extraneous and out of date material from the reports tendered by the Crown”.

51. In the applicant’s written submissions this broadly stated ground has been narrowed to identify pages 24.1 to 26 of the Remarks on Sentence (“RoS”) as containing the alleged error. I consider that this passage has to be read with the second half of p 23 as well. Her Honour’s findings in this part of the Remarks may be fairly summarised as follows:

1. Dr Samuels’ report of 11 May 2009 had been prepared pursuant to an order of the Court made under s 7(4) Crimes (Serious Sex Offenders) Act 2006 (as it was then known) in the proceedings in which the extended supervision order had been made, to commence 22 July 2009: State of New South Wales v O’Sullivan [2009] NSWSC 704. Dr Samuels had asked the applicant why he had refused anti-libidinal medication.

2. The applicant had informed Dr Samuels on 7 May 2009 “that he had not actually refused it, but had heard bad things about it in jail. He also claimed he was about to begin a heterosexual relationship and he had concerns that such medication may affect his sexual functioning” (RoS 24.3).

3. Anna Hoy, forensic psychologist, had reported on 6 March 2009 that the applicant had a number of risk factors for repeat paedophile offending (RoS 24.6). She had observed that the applicant had “developed good insight into his offending behaviour” and had “demonstrated progress” during a Custody Based Intensive Treatment (“CUBIT”) Program in early 2009. Ms Hoy “strongly recommended that he consider anti-libidinal medication to assist him in exerting appropriate self control” but he had not taken up this recommendation (RoS 25.2).

4. As at 11 May 2009 Dr Samuels assessed the applicant “in the high risk category of offenders” and considered that if his proposed relationship with a female should fail then this would be a further risk factor (RoS 24.8). Her Honour found that the relationship had in fact ended “nearly before it started” (RoS 25.2).

5. Mr McElhone, senior specialist psychologist, in a report dated 9 January 2009 had identified the applicant as in the high risk category for reoffending (RoS 25.5).

6. Dr Hearps, psychiatrist, had reported on 7 July 2008 that the applicant had “demonstrated a pattern of sexual behaviour with pre-pubescent boys over a period of four decades. He fulfilled the diagnostic criteria for paedophilia. “Dr Hearps had recommended treatment with libido lowering medication”.

52. Her Honour’s review of the psychiatrists’ and psychologists’ reports of mid-2008 to early 2009, as above, was immediately followed by this passage (at RoS 25.8 – 26.4), which the applicant now impugns:

“In the reports before me, the offender is assessed as a high risk offender. A recurrent recommendation of those professionals who dealt with him was that he consider anti-libidinal recommendation. In my view what is singularly missing in the reports is any expression of true remorse, contrition or even acknowledgment of the profound harm caused to children in the trade of supplying child abuse material for the purveyors of such images. In the most recent report of Community Corrections dated 16 March 2014 the offender, when asked about his attitude to the offending conduct, stated that his actions were ‘totally bloody stupid’. There is no evidence before me to establish that he is remorseful for his offending conduct. Indeed I find that the offender, whilst perhaps gaining a superficial insight into his offending conduct through his participation in the CUBIT program, continues to lack any genuine and deep understanding of the impact of the offending conduct on the children. The evidence establishes, in my view, a real likelihood that this offender will reoffend in the future. There is nothing before me that could give the Court any confidence that the offender has any prospects of rehabilitation.”

53. With respect to these conclusions the applicant’s first proposition under Ground 1 is that the information regarding medical recommendations for anti-libidinal medication was “out of date” and hence “extraneous” or irrelevant. I do not consider that the 2008/2009 recommendations for this medication were “out of date” in the sense of no longer being applicable or relevant. They were based upon a record of persistent sex offending with young boys, mostly under 12 years, over 40 years from 1962 until 31 December 2002. The latter date was the end date of the charge period of the offences for which the applicant had been sentenced to imprisonment from 20 November 2003. He had been in prison and unable to offend further from then up to the dates of the reports.

54. There was nothing before her Honour to suggest that the applicant’s entrenched pattern of behaviour which those reports described, in respect of the period from when he was about 16 years old (1962) to age 56 (late 2003), had changed in the five years between the dates of those reports and the date of the offences for which her Honour was sentencing him. On the contrary, the very offences to which he had pleaded guilty showed that in September 2012, only three and a half years after the reports had been written, he still appeared to have no ability to control his deviant sexual preoccupation.

55. A Department of Corrective Services Progress Report dated 13 June 2011 concerning the applicant’s performance under the extended supervision order was before her Honour. It stated that he continued to be regarded as high risk and that he was being visited by a Compliance and Monitoring Officer every 28 days. The report stated that “his psychiatrist Dr Andrew Ellis” had requested the applicant to provide a blood sample for assessment of his suitability to be prescribed anti-libidinal medication. Dr Ellis was in the process of making such an assessment as at 13 June 2011.

56. The learned sentencing judge was well entitled to conclude (a) that the applicant remained at high risk of perpetrating further sexual offences; (b) that professional recommendations for anti-libidinal medication remained current and were soundly based having regard to what had happened since those recommendations were first made and (c) that the applicant was not, in fact, taking the medication. Irrespective of what the cause may have been for his not taking it – his own choice, delay in carrying out of the preliminary tests, failure of Control and Monitoring Officers to invoke Condition 28 of the extended supervision order (which required him to accept treatment if prescribed) or any other cause – the fact was that the manifest risk with respect to him was not diminishing of its own accord and was not being addressed by medical intervention. What mattered to the sentencing decision was her Honour’s well founded conclusion that, therefore, there was a “real likelihood that this offender will reoffend in the future” and that there was nothing to give the Court “any confidence that the offender has any prospects of rehabilitation”.

57. Her Honour said (RoS 24.2): “As I understand it, the offender has, to date, refused to take such medication” (RoS 24.2). There were plenty of references in the 2008/2009 reports to his unwillingness to take the medication. The Progress report of 13 June 2011 noted that his then current position was: “he does not want to take the anti-libidinal, nor does he feel that he needs them”. A Pre-Sentence Report of 16 March 2014 recorded that it was “of major concern” to the Community Corrections Officer who authored the report “that the offender appears to have a significant lack of control over his sex offending behaviour and urges, and minimal or no insight into the risk factors and consequences of his actions”.

58. Her Honour’s conclusion that the applicant had “to date, refused to take such medication” was supportable on this evidence. Certainly there was no evidence to show that he had pursued testing or done anything proactive to get himself on the medication. Whether he would maintain his frequently expressed unwillingness to take an anti-libidinal after Dr Ellis had assessed his blood results remained to be seen. But contrary to the applicant’s submissions it is not apparent that her Honour treated the applicant’s attitude to the medication “as an adverse factor at the time of sentencing”.

53. A second complaint by the applicant in his submissions under Ground 1 is that in the passage quoted at [52] above her Honour “contextually linked the failure to take anti-libidinal drugs to her assessment of the applicant’s failure to express remorse, contrition or acknowledge the harm he has caused”. With respect, there is no such contextual link. Two discrete subjects are dealt with by her Honour, one after the other. The first is that he has been assessed as high risk, that medication has been recommended and that he is not taking it – hence, there is ongoing risk of him re-offending. The second is that he has shown no remorse, contrition or acknowledgment of harm done. It is not demonstrated that her Honour erroneously treated evidence in support of the first subject as proving or bearing upon the second.

54. The applicant’s third submission in support of Ground 1 is that in the passage extracted at [52] above, her Honour held it against the applicant that there was no record of him expressing remorse, contrition or acknowledgment of harm to children flowing from the trade in child abuse material, in “the reports”. The applicant has submitted that there was only one report which post-dated the s 91H(2) offences namely that of Community Corrections of 16 March 2014. The applicant submits that her Honour has mistakenly expected to find reference to remorse and contrition concerning possession of child abuse material in the earlier reports of 2008 and 2009, up to which time such offences had not been committed.

55. With respect, that is not a fair reading of her Honour’s reasons. It would have been perfectly apparent to her Honour that the only report which post-dated the s 91H(2) offences was the Community Corrections report of 16 March 2014. Her Honour referred to that report and quoted from it in the very next sentence of her Remarks. Fairly read the sense of this part of the RoS quoted at [52] is that expressions of remorse, contrition and recognition of harm to children were “singularly missing in the [relevant report]”.

56. Fourthly the applicant complains under Ground 1 that her Honour overlooked [39] of the reasons of the Supreme Court, cited at [51] above, for making the extended supervision order in July 2009. It was there said that the applicant was in July 2009 taking medication which was expected to reduce his “unconventional sexual fantasies, urges and masturbation”. But in the 13 June 2011 Progress Report, which was also before her Honour, it was noted that the applicant was taking a medication “which additionally has a side effect of lowering the libido”. In the same paragraph of that report further detail was given of Dr Andrew Ellis having requested a blood sample and having undertaken testing for further medication. On this material it was open to her Honour to find that whatever medication he may have been taking in 2009 or even currently, his treating psychiatrist considered that something more was required – something which was not, at the date of sentencing, being taken.

57. I would reject Ground 1 for these reasons.

Ground 2 – double counting for the breaches of extended supervision order

64. Ground 2 is as follows:

“2. The sentencing judge erred by double-counting the aggravating feature of ‘breach of conditional liberty’ for the offences of breach extended supervision order”.

65. The passage of the RoS which the applicant has identified in submissions as involving the double counting is the middle paragraph of the following portion of p 18:

“The Crown relied upon the decision in Andrew John Sivell v R [2009] NSWCCA 286 where Fullerton J held that the offender in that case was on conditional liberty by virtue of the fact that he was subject to prohibition orders made pursuant to the Child Protection (Offenders Prohibition Orders) Act. Her Honour saw no justification in treating a breach of a bond, suspended sentence or breach of parole, for the purposes of s 21A(2)(j) of the Crimes (Sentencing Procedure) Act any differently from a breach of an order under the Child Protection (Offenders Prohibition Orders) Act.

I accept, therefore, that by virtue of the fact that an offender was on an extended supervision order at the time he committed these offences, he was on conditional liberty, thereby constituting an aggravating feature.

In assessing the objective seriousness of the offences, I will also take into account the following; although the total number of images and videos were not as voluminous as many cases that come before the Court for these types of offences, 11 of the videos depict child abuse that is categorised as falling into the CETS scale 4. 88 photographs were also categorised as CETS scale 4” (emphasis added).

66. In submissions in support of this ground the applicant has attempted to construe her Honour’s remarks, by the use of the general expression “these offences” in the middle paragraph of this passage, as treating the existence of the extended supervision order as a circumstance aggravating all of the offences – both those contrary to s 91H(2) and the breach of supervision order charges under s 12 Crimes (High Risk Offenders) Act. I consider it quite clear that the expression “these offences” in the middle paragraph of the extract quoted above was intended by her Honour to refer only to the s 91H(2) matters. In the very next paragraph her Honour analysed the objective seriousness of what she again referred to as “the offences” expressly examining only the objective features of the s 91H(2) matters.

67. The applicant’s argument attempts to attribute to her Honour the absurdity of treating the existence of an extended supervision order as a circumstance of aggravation, rather than an integral element, of the offences of breaching the order. The attempt is unjustified and unsuccessful. Ground 2 should be rejected.

Ground 3 – very high objective seriousness of substantive charges

68. I respectfully adopt Adams J’s analysis at [35] – [42] of the detail of the nature and volume of the images recorded on each of the three media, respectively, which form the basis of the three charges under s 91H(2). The appellant’s submissions on this ground complain about her Honour’s attribution of a “very high” degree of seriousness to all three offences, given that the number of images, in particular the amount of higher classification material, on the DVD and the flash drive was greater than on the laptop. Yet counsel for the applicant effectively conceded that her Honour had taken this differentiation into account by submitting the following:

“The objective seriousness of the material located on the Toshiba laptop was not ‘very high’ given the limited number of the images and their relatively low classification. The judge implicitly accepted this assessment by providing an indicative sentence of two years for this offence”.

69. Her Honour’s indicative sentence for each of the other two offences, concerning the DVD and flash drive respectively, was four years. Having acknowledged that her Honour recognised the lesser seriousness of the laptop offence by the adoption of a lower indicative sentence, it is difficult to see what sentencing error could be said to have arisen from her Honour’s use of the broad descriptor “very serious” applied to all three. Wherever there are three offences against the same section, if the facts warrant it they may without error all be described in general terms as “very serious” notwithstanding that they vary from one to another in degree of gravity.

70. The applicant further submitted that her Honour’s use of this general descriptive characterisation, notwithstanding her implicit recognition of the lesser gravity of the laptop offence, “risks double counting”. That does not follow and I do not accept the submission.

71. Finally, counsel argued:

“The indicated individual sentences are inflated by reference to this assessment [i.e. ‘very serious’] and which (sic) transfers to the aggregate sentence.”

72. For the reasons given by Adams J at [44] in dealing with Grounds 4 and 5 (manifestly excessive sentence), the aggregate sentence imposed was not “inflated”. Nor, in my opinion, were the indicative individual sentences. Ground 3 should be rejected.

Grounds 4 and 5 – manifestly excessive sentence

73. With respect to the applicant’s arguments under Grounds 4 and 5 that the aggregate sentence was manifestly excessive and failed to take into account the principle of totality, I do not wish to add anything to what Adams J has written at [44], with which I agree entirely. I would reject those grounds.

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Decision last updated: 22 December 2015