R v Appleby
[2021] ACTSC 55
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v Appleby |
| Citation: | [2021] ACTSC 55 |
| Hearing Date(s): | 16 March 2021; 17 March 2021 |
| Decision Date: | 9 April 2021 |
| Before: | Loukas-Karlsson J |
| Decision: | See [131] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Commonwealth and Territory offences – use carriage service to access, transmit, and possess child pornography – capturing visual data that is an invasion of privacy and indecent – pleas of guilty – prospects of rehabilitation |
| Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33, 35 Crimes Act 1900 (ACT) s 61B(1) Crimes Act 1900 (NSW) s 91H(2) Crimes Act 1914 (Cth) ss 16A, 16A(1), 16A(2), 16A(2AAA), 16BA, 19, 19AB, 19AC, 19AJ Crimes Act 1958 (Vic) ss 47, 68, 70, 74 Criminal Code Act 1995 (Cth) ss 473.1, 474.19(1), 474.22A, 474.22(1) Summary Offences Act 1966 (Vic) s 41B |
| Cases Cited: | Alvares v R; Farache v R [2011] NSWCCA 33; 209 A Crim R 297 Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 Bugmy v The Queen (1990) 169 CLR 525 Bui v DPP (Cth) [2012] HCA 1; 244 CLR 638 Butters v R [2010] NSWCCA 1 Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41 Deakin v The Queen (1984) 58 ALJR 367 |
| Director of Public Prosecutions v Dalgliesh (a pseudonym) | |
| [2017] HCA 41; 262 CLR 428 DPP v Garside [2016] VSCA 74; 50 VR 800 DPP v Latham [2009] TASSC 101; 19 Tas R 281 Edwin v The Queen [2014] ACTCA 47 Finley v The Queen [2018] VSCA 202 Fusimalohi v The Queen [2012] ACTCA 49 Hili v the Queen [2010] HCA 45; 242 CLR 520 Imbornone v R [2017] NSWCCA 144 Lyons v The Queen [2019] VSCA 242 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mun v R [2015] NSWCCA 234 O’Brien v The Queen [2015] ACTCA 47 | |
| Peters v R [2018] NSWCCA 126 | |
| Power v The Queen (1974) 131 CLR 623 | |
| R v De Leeuw [2015] NSWCCA 183 R v Harrington [2016] ACTCA 10; 11 ACTLR 215 R v Harrison [2001] NSWCCA 79; 121 A Crim R 380 R v Hutchinson [2018] NSWCCA 152 R v Mumberson [2011] NSWCCA 54 R v Pham [2015] HCA 39; 256 CLR 550 R v Porte [2015] NSWCCA 174; 252 A Crim R 277 | |
| R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 | |
| R v Yardley [2021] ACTSC 2 Saddler v The Queen [2009] NSWCCA 83; 194 A Crim R 452 The Queen v Kilic [2016] HCA 48; 259 CLR 256 Van Zwam v R [2017] NSWCCA 127 Zdravkovic v The Queen [2016] ACTCA 53 | |
| Parties: | The Queen (Crown) Geoffrey Robert Appleby (Offender) |
| Representation: | Counsel |
| I Thomas (Crown) A Doig (Offender) | |
| Solicitors | |
| Commonwealth Director of Public Prosecutions (Crown) | |
| Capon & Hubert Lawyers (Offender) | |
| File Number(s): | SCC 256 of 2020; 257 of 2020 |
| LOUKAS-KARLSSON J | |
| Introduction |
1. Geoffrey Robert Appleby (the offender) has pleaded guilty to the following offences, contrary to the Criminal Code Act 1995 (Cth) (Criminal Code):
(a) Two offences of possessing or controlling child abuse material, obtained or accessed using a carriage service, contrary to s 474.22A of the Criminal Code. The maximum penalty for this offence is 15 years imprisonment. (b) One offence of using a carriage service to access child abuse material, contrary to s 474.22(1) of the Criminal Code. The maximum penalty for this offence is 15 years imprisonment.
2. Additionally, the offender has pleaded guilty to the following offences, contrary to the Crimes Act 1900 (ACT) (Crimes Act):
(a)
Fifteen offences of capturing visual data of another person that is an invasion of privacy and indecent, contrary to s 61B(1) of the Crimes Act. The maximum penalty for this offence is 2 years imprisonment, a fine, or both.
Agreed Facts
3. The offending is set out in a statement of agreed facts which forms part of the
prosecution’s tender bundle. A brief summary follows.
4. Between 12 and 13 October 2019, the offender accessed child abuse material by
downloading it from the website ‘Mega’. The downloaded material comprised 2,880
video files and 650 images. Police reviewed 739 of the videos and 261 of the images and identified them to be child abuse material as defined by s 473.1 of the Criminal Code, before ceasing review of the files to avoid further exposure to the material. A cursory review of the remaining files indicated that a significant portion was also child abuse material.
A search warrant was executed on 12 August 2020 at the offender’s home. Police
subsequently located the child abuse material on the offender’s laptop computer and
a secure folder on his mobile phone. The secure folder contained 650 images and video files, 10 per cent of which were reviewed and identified to be child abuse material.
6. In other sub-folders of the offender’s mobile phone, police located a number of videos and images depicting women using the toilet and shower in the offender’s home.
Upon searching the offender’s bathroom, police located a hidden camera within an
electronic clock angled towards the toilet and shower.
7. Police subsequently located on the offender’s laptop a number of similar videos
depicting people (being both male and female adults and children) using the
bathroom in a previous residence of the offender.
Charges One and Three – Access to and possession of child abuse material on laptop
computer
The child abuse material located on the offender’s computer was predominantly
comprised of video files, with a smaller amount consisting of image files. The material depicts children of both genders ranging in age from about two months old to 15 years of age, and clearly depicts the sexual assault and sexual abuse of the child victims by male and female adult offenders.
Charge Two – Possession of child abuse material on mobile phone
Police located a secure folder on the offender’s phone which required a passcode for
access. The offender provided police with this passcode. In total, 650 further image
and video files were located and identified as child abuse material.
Addendum
Police reviewed the files detected on the offender’s devices and estimate that the
likely number of individual, unique victims to be no less than 600 children.
11. Police cannot definitively state whether there is any overlap between the files located
on the offender’s computer, and the files located on his phone. The majority of the
files viewed by police on the offender’s phone appear visually different to those
viewed on the laptop, with only a small number appearing visually similar.
Table
12. The Court was not provided with a table classifying the child abuse material identified
on the offender’s devices into categories according to the Australian National Victim
Image Library (ANVIL) Schema. The prosecution submitted and the defence agreed that it was important to look at the material, and that review was undertaken: see R v Porte [2015] NSWCCA 174; 252 A Crim R 277 (R v Porte) at [76]; R v Hutchinson [2018] NSWCCA 152 at [47]-[50]. No further description other than at [8] is required for the purposes of these sentencing remarks.
Charges Four to Eighteen – Visual data captured in the bathroom of the offender’s
residences
Police conducted further examination of the offender’s devices, including a memory
card recovered from the hidden camera which had been located in the offender’s
bathroom.
14. Police identified 18 video files containing footage of the offender’s residence which
captured four different people using the bathroom.
15. A further 20 videos were identified which appear to capture people using a toilet on a concealed camera. Twelve victims (over ten video files) were depicted using the bathroom in the house where the offender resided in 2015. Adults and children, both male and female, are depicted in these video files.
16. None of the people depicted were aware of the hidden camera or consented to the capture of the videos or images.
Statements at Search Warrant
17. The offender made a number of statements to police at the execution of the search warrant, including the following:
18. The offender owns the laptop and the mobile phone;
19. The offender doesn’t believe that anyone else in the house has ever accessed the
laptop other than briefly in his presence;
20. The laptop was password protected and only he knew the password;
Statements at Record of Interview
21. The offender subsequently agreed to participate in a record of interview for the purpose of identifying the people depicted in the videos and images captured by the hidden cameras in his homes. In that interview, he made a number of statements, including the following:
22. In relation to the camera in the bathroom of his previous residence, he had purchased a camera disguised as a towel hook online and affixed it to the bathroom wall with blu tak. He had put it in the bathroom for the purpose of trying to see people naked. He
intended to capture ‘visitors’ at the premises.
23. The material from either camera was never distributed anywhere.
The material was not captured for masturbation purposes but there was a “voyeuristic
interest”.
25. He identified a former partner along with eight other people, one whose full name is not known, as being depicted in the footage from the two cameras.
With regard to child pornography, the last couple of years he had been “following
interests in all manner of pornography and different sexual things…exploring the
more taboo side of things”. He wasn’t explicitly seeking child pornography but “wasn’t
surprised that there’d be child stuff in [the Mega file he downloaded]”.27. Downloading child pornography was part of fantasy role play and he was never interested in actually doing things with children. He never masturbated to child
pornography and he felt bad for the children. He couldn’t explain why he retained the
child pornography files, but believed he had impaired decision-making skills due to
depression.
Victim Impact Statements
28. In evidence before me are five Victim Impact Statements from the victims of the invasion of privacy offences. The statements make clear that each of the victims were deeply impacted by the offending.
29. At the request of the victims, the Victim Impact Statements were tendered but not read onto the record at the sentence hearing.
30. The prosecution submitted, and I accept, that the Victim Impact Statements demonstrate significant emotional distress suffered by the victims of the invasion of privacy offending. It was submitted, and I accept, that this has in turn, caused disruption in other aspects of life for the victims, including their relationships and their education. A number of the victims have sought treatment from a psychologist or counsellor as a result of these offences.
31. Counsel for the offender submitted that the offender has seen each of the Victim
Impact Statements, acknowledges that harm, and “is shocked that his behaviour
could cause such alarm and distress”.
32. The extent of the impact upon the victims was made clear by the Victim Impact Statements. The Victim Impact Statements are important. Courts understand the serious effects of offences such as these. Additionally, it is valuable and important for the Court to read the Victim Impact Statements. The offender must understand the harm and distress he has caused.
Objective Seriousness and Sentencing Submissions
Prosecution Submissions
Child abuse material offences
33. The prosecution submitted that, taking into account the inherent gravity of the offences, the objective seriousness of the offences, and the significance of general deterrence for offending of this kind, that a term of immediate imprisonment is required in this instance.
34. The Courts have recognised that a term of imprisonment will ordinarily be expected for offending of this nature: DPP v Garside [2016] VSCA 74; 50 VR 800 at [62]; R v De Leeuw [2015] NSWCCA 183 at [72(a)]. It was submitted that there is nothing about the facts (either as to the offence or the offender) which would take it outside the sentence which would ordinarily be expected.
35. The prosecution submits that in this case, the offender accessed and possessed a significant quantity of child abuse material, the content of which is clearly of significant gravity. The prosecution estimates that the likely number of individual, unique victims is no less than 600 children, ranging in age from about 2 months to 15 years.
36. The prosecution does not allege that the offender made material available for sale or further distribution, or engaged in the offending for profit. Nevertheless, the prosecution submits that the absence of these factors does not mitigate the offending: Saddler v The Queen [2009] NSWCCA 83; 194 A Crim R 452 at [49]-[50]; DPP v Latham [2009] TASSC 101; 19 Tas R 281 at [33].
Invasion of privacy offences
37. The prosecution submitted, and I accept, that offending of this type should be regarded as inherently serious, and reflects a community expectation of, and concern for, personal privacy in day-to-day activities.
38. In this matter, the prosecution submitted, and I accept, that each of the offences should be seen as objectively serious for offending of this type. It was submitted that the offending formed a course of conduct, with multiple instances of the offending occurring over two discrete periods of time, and each of substantial duration. Charges
4 – 14 relate to the period 3 July 2015 – 30 October 2015, with offending against 12 identified victims. Charges 15 – 18 relate to the period 28 December 2019 – 7 May
2020, with offending against four victims.
39. It was submitted, and I accept, that this offending was planned, and pre-meditated. It was submitted further that it is an aggravating feature of charges 6, 7, 10, and 13 that the victims were children between the ages of 9 and 14. However, the prosecution does not submit that this material meets the definition of child exploitation material. The prosecution submits that charges 7 and 10 are further aggravated by the breach of trust.
40. The prosecution submits that there is an available inference that the footage was captured for the purpose of sexual gratification, and that this inference is supported
by the offender’s persistent use and location of the camera in a bathroom. It was
submitted that this inference is further supported by the statements made by the
offender in his recorded police interview.
Defence Submissions
41. Counsel for the offender submitted that comparable cases have involved greater numbers of images and videos than this matter, however it was conceded that the
number of images in this case was ‘not insignificant’.
42. Counsel submitted that the offender accepts that he is facing a sentence of immediate imprisonment, and that in cases such as these general and specific deterrence are significant in the sentencing process. Counsel submitted that the only question, in this respect, was the manner in which the sentence of imprisonment should be served (T22.14.23)
Conclusion on Objective Seriousness
43. I accept the prosecution submissions in relation to the objective seriousness of the offences. The prosecution submissions are broadly aligned with the defence submissions in this regard and highlight the identifying features which I accept are relevant to the objective seriousness of the offences, as outlined above. No submissions were made as to categorisation as to low, medium, or high range. The objective seriousness is informed by the number of images and victims. No submissions were made that the offences fell into the worst category: see The Queen v Kilic [2016] HCA 48; 259 CLR 256. Nevertheless, the offences are serious, as discussed above.
Subjective Circumstances
44. In evidence before me is a Pre-Sentence Report (PSR) prepared for the offender. Additionally, the following material was tendered on behalf of the offender:
(a)
A psychological assessment report prepared by Ms Leesa Morris, a forensic psychologist, dated 28 September 2020.
(b)
A psychological assessment report prepared by Dr Douglas Boer, a registered clinical psychologist, dated 31 January 2021.
Pre-Sentence Report
45. The offender is 45 years of age. He enjoyed a stable upbringing, reporting positive relationships with his mother and sisters. The offender had a turbulent relationship with his father, but now reports one which is very supportive. The offender intends to
reside at his father’s address upon his release.
46. The offender has had two previous significant relationships, the first spanning approximately six years, and the second approximately ten years.
47. The offender completed Year 12 and has tertiary qualifications in computer programming. The offender has been employed in the IT industry in various positions which often required a security clearance. The offender believes he is unlikely to find future employment in similar roles due to the nature of his offending.
48. The offender reported no history of drug misuse or excessive or problematic alcohol consumption. The PSR states that the offender does not present with any major mental illness.
49. In relation to the invasion of privacy offences, the PSR states:
[The offender] advised that he purchased the concealed cameras in an attempt to gain material for his sexual gratification. He advised that the material generated was not sexually gratifying and that as such he lost interest in the use of the cameras but did not uninstall or discard them. He agreed that his actions were premeditated in nature. He displayed a level of victim empathy; however this was laced with self-concern.
50. In relation to the child abuse material offences, the PSR states:
[The offender] advised that at the time of his offending he had been exploring sexual fetishes and was curious about a wide range of topics including child abuse material. He denied being sexually attracted to children and denied that his actions were premeditated. He displayed limited victim empathy and referred to the child abuse material as being abstract in nature. He advised knowing at the time of his offending that his actions were unlawful.
The PSR author’s opinion concludes:
While [the offender] stated his agreement with the Police statement of facts and appeared to take responsibility, he displayed a limited level of victim empathy which was laced with self-concern. It is recommended that [the offender] continue his engagement with the psychologist to address his emotional health issues and he would also benefit from participating in a sex offender program such as the Adult Sex Offender Program (ASOP), which is delivered in the community by this Service.
52. The offender has been assessed by Corrective Services as ‘suitable’ for an Intensive
Corrections Order (ICO).
Report of Ms Morris
53. The offender reported a similar educational, occupational, and relationship history to
Ms Morris as he did to the PSR author. Ms Morris notes that the offender’s attitude to
his offences is varied. He is minimising of his behaviours, believing he has not caused
harm, or ‘as much’ harm as a contact sex offender, but alternatively, he is regretful of
his actions, particularly in relation to the invasion of privacy offences.
In Ms Morris’ opinion, the offender’s risk of reoffending is in the low to moderate
range by virtue of his psychological function and level of rehabilitative efforts required. Ms Morris notes that the offender has reported a strong willingness to engage with rehabilitative intervention.
55. Ms Morris found that the offender uses maladaptive psychological coping mechanisms, but did not detect any diagnosable psychological or personality disorder.
Report of Dr Boer
56. Dr Boer reports that the offender attended a total of 8 hours of treatment for his offending behaviour, beginning 9 December 2020. The report notes that the offender engaged in treatment and was very motivated to understand his offending, completed all of his assigned tasks satisfactorily. It notes further that the completed homework tasks indicate that the offender took full responsibility for his offending.
Dr Boer reports that the offender engaged particularly well with the ‘victim empathy’
component of his assignments, and was able to appreciate the direct emotional effect the camera offences have had, and continue to have, on the victims. In relation to the
child abuse material offences, Dr Boer reports that the offender “showed good
empathy” and acknowledged that the children depicted had been traumatised, and
that his downloading of the material increased the demand for such material, and thus
promoted more victimisation.58. In relation to the risk of reoffending, Dr Boer estimates that there is a low risk of reoffending. A similar, and marginally more favourable conclusion to that of Ms Morris.
59. I note that the Morris report was produced following an assessment conducted on 10 September 2020 which was two-and-a-half hours in duration. The Boer report was produced following a total of four two-hour sessions conducted with the offender on 9 December 2020, 22 December 2020, 5 January 2021, and 19 January 2021. The PSR was produced following interviews with the offender on 4 February 2021 and 16 February 2021.
Reference
In evidence before me was a letter written by the offender’s father, dated 27 January
2021, which included the following:
I sincerely believe [the offender] will not reoffend as he has often expressed to me, during visits with him at the AMC, that he is remorseful and truly sorry for what he has done. He realises the seriousness of his offences and the grave repercussions it will have on his career. He has willingly attended interviews with a forensic psychologist and counselling sessions with a clinical psychologist.
I wish for him the best outcome for this case. He has, and will continue to have, my full support in the future: regardless of what his punishment turns out to be.
61. I take this reference into account on sentence.
Remorse
62. The PSR notes that the offender agreed that his actions were unlawful, and claimed to take responsibility for his offending behaviour.
63. In relation to the concealed camera offending, the offender agreed that his actions were premediated in nature. In relation to the invasion of privacy offences, the PSR author stated that the offender displayed a level of victim empathy, however this was laced with self-concern. The offender agreed that he had placed the camera with the intention of producing material for his sexual gratification, but denied gaining any gratification from the material generated.
64. As stated above at [50], in relation to the child abuse material offending, the offender denied being sexually attracted to children, and denied that his actions were premeditated, despite knowing at the time that his actions were unlawful. The PSR author states that the offender displayed limited victim empathy, and referred to the child abuse material as being abstract in nature.
Ms Morris’ assessment of the offender’s remorse was that it was not coherent, given
that he had expressed some remorse for the victims of the camera offences, but
continued to believe that he had no impact on others through his online activities.
Dr Boer’s report states that the offender has substantial regret and remorse for his
offending. In Dr Boer’s opinion the offender has taken responsibility for his actions,
shown empathy for his victims, and his therapeutic involvement has indicated a
motivation to reduce the likelihood of further offending.
Prosecution submissions – Remorse
67. The prosecution submitted that the offender was ‘somewhat cooperative’ with
authorities at the search warrant, making admissions about some aspects of his offending, but initially lying about others. The prosecution accepted that the offender did subsequently provide assistance to police that enabled the identification of the victims of the invasion of privacy offences.
68. With respect to the reports of Ms Morris and Dr Boer, the prosecution submitted that this evidence, in conjunction with the PSR, indicate an inconsistent level of remorse and insight on the part of the offender, particularly with regard to the child abuse
material offending. Accordingly, the prosecution submitted that the offender’s
purported insight and contrition should be regarded with some scepticism, and self-
serving, untested statements made to experts be approached with caution.69. The prosecution accepted that the offender has participated in treatment and that
“this bodes well for his continuing rehabilitation”.
Defence submissions – Remorse
70. Counsel for the offender submitted that the psychological reports and the PSR disclose that since his arrest and incarceration the offender has made significant progress towards rehabilitation. It was submitted that the offender has made use of his time on remand, particularly with respect to his engagement with Dr Boer. It was
submitted that the Boer report indicates the offender’s willingness to continue
engagement in risk-relevant therapies and rehabilitation. It was submitted that the
offender has taken ‘remarkable steps’ whilst at the Alexander Maconochie Centre to
effect the commencement of his rehabilitation (T22.21.23).
71. Counsel for the offender submitted that the differing views contained within the Morris and Boer reports and the PSR indicates that the offender engaged with the authors in
an honest manner, and that the offender is a ‘work in progress’ (T21.32-47). It was
submitted that this engagement should be taken to indicate that the offender wishes to understand his own behaviour, and to ensure that he does not engage in this behaviour again in the future (T22.1-5).
Conclusion on remorse
72. The Courts have stated on many occasions that statements made by an offender which are not supported by the offender giving sworn evidence should be treated with considerable caution: see Butters v R [2010] NSWCCA 1 (Butters) at [18]; Fusimalohi v The Queen [2012] ACTCA 49 at [8] per Burns and Lander JJ; Alvares v R; Farache v R [2011] NSWCCA 33; 209 A Crim R 297 at [44]; Mun v R [2015] NSWCCA 234 (Mun) at [36]; R v Mumberson [2011] NSWCCA 54 at [38]. Courts do not simply disregard evidence of remorse if the offender does not go into the witness box and give evidence. It is, however, relevant to the weight of the evidence: Butters at [18]; Mun at [37]; Van Zwam v R [2017] NSWCCA 127 at [6], [110]. These cases can be contrasted with Imbornone v R [2017] NSWCCA 144 and R v Harrison [2001] NSWCCA 79; 121 A Crim R 380, where the sentencing judge, in each case, was not
in error in rejecting the offender’s self-serving untested statements as evidence of
remorse.
73. In accordance with the authorities discussed above, I do not ascribe substantial weight to the remorse expressed. I accept the prosecution submission that the PSR, report of Ms Morris, and report of Dr Boer, reveal an inconsistent level of remorse and insight. I also accept the submission, broadly agreed as between the prosecution and defence, that the participation in treatment by the offender is an important consideration in terms of prospects of rehabilitation. I also deal with rehabilitation at [117].
74. Separately, I also note that no submissions were made by prosecution or defence specifically in relation to assistance, whether ACT or Commonwealth, other than reference to some limited assistance in the context of remorse. Therefore, no specific discount is relevant or appropriate.
Criminal History
75. The offender has no criminal history. The prosecution submitted, and I accept, that
while this was a factor in the offender’s favour, it should be considered in the context
of the nature of this type of offending.
Plea of Guilty
76. The offender entered pleas of guilty at the earliest available opportunity.
77. The Court must take into account the fact that a federal offender has entered a guilty plea, as well as the timing of the plea and whether it was entered as the first reasonable opportunity and the degree to which these factors resulted in any benefit to the community of, or witness to, the offence.
78. In sentencing for Commonwealth matters, the Court is not required to specify a discount, although it may be desirable to do so in the interests of transparency.
79. Section 16A of the Crimes Act 1914 (Cth) (Commonwealth Crimes Act) has recently been amended with effect for any sentence imposed on or after 20 July 2020. As a result of this amendment, the Court is now required to take into account, if an offender has pleaded guilty to a charge, the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence: s 16A(2)(g)(iii). Previously, ACT authority in R v Harrington [2016] ACTCA 10; 11 ACTLR 215 prohibited a court from taking into account the utilitarian value of a plea.
80. I will allow a discount of approximately 25 per cent for the pleas of guilty.
Time in Custody
81. The offender has spent 7 months and 29 days in custody from 12 August 2020 solely referable to these offences.
Cases
82. In the case of federal offences, it is implicit in Part IB of the Commonwealth Crimes Act that I must have regard to current sentencing practices throughout the Commonwealth: see R v Pham [2015] HCA 39; 256 CLR 550 (Pham) at [18]; [23]- [24]. Regard must be had to sentencing decisions of intermediate appellate courts in
comparable cases as “yardsticks” that may serve to illustrate but not define the
possible range of sentences available: see Pham at [29]; Hili v The Queen [2010]
HCA 45; 242 CLR 520 (Hili) at [53]-[54].83. Bare sentencing statistics provide limited assistance: Pham. Statistics do not provide information about why sentences were fixed as they were in each case: Hili. There are a number of decisions of this court relating to offenders who committed similar offences. Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4]:
[C]onsiderations to which a sentencing judge is obliged … to have regard cannot be
applied mechanically … given that the factors that must be taken into account are
incommensurable, and … in many respects, inconsistent
The following cases from this jurisdiction provide a “yardstick” as referred to by the
High Court in relation to this sentencing exercise: Hili at [53]-[54].
85. I was also referred to the following comparable cases by the prosecution in relation to the child abuse material offences. The prosecution was unable to locate any ACT authorities relating to invasion of privacy offences, noting that these are summary offences. The prosecution submitted that the matter Finley v The Queen [2018] VSCA 202 included an interstate offence of a similar nature, and may provide some assistance.
86. In Lyons v The Queen [2019] VSCA 242 (Lyons) the offender pleaded guilty to two Commonwealth offences; using a carriage service to access child pornography, and using a carriage service to transmit child pornography, both contrary to s 474.19(1) of the Criminal Code. The maximum penalty for these offences was 15 years imprisonment. The first offence related to 640 images and 149 videos on the
offender’s mobile phone. The second offence related to the transmission of textual
child pornography material. A further offence of soliciting child pornography was taken into account pursuant to s 16BA of the Commonwealth Crimes Act. The offender was 28 years of age at the time of the offending. An early plea of guilty was entered. He showed little insight into his offending, was assessed as meeting the diagnostic criteria for a paedophilic disorder, and had a moderate degree of risk of re-offending.
The offender was sentenced to 18 months’ imprisonment for each of the offences,
with a total effective sentence of 2 years and 6 months. The offender was to be released after 18 months upon entering a recognizance of $5,000 to be of good
behaviour for 4 years. The offender’s appeal was dismissed.
87. The prosecution submitted that the matter of Lyons involved a similar, albeit lesser amount than the instant matter. It was submitted that Lyons had also involved transmission and soliciting of material. The prosecution accepted that this was of a higher objective seriousness than the present matter (T28.45-47; 29.1-5).
88. In Finley v The Queen [2018] VSCA 202 (Finley) the offender pleaded guilty to the following offences:
(a) Committing an indecent act with a child under 16 years, contrary to s 47(1) of the Crimes Act 1958 (Vic). The maximum penalty for this offence was 10 years imprisonment. The offender was sentenced to 18 months’
imprisonment for this offence.
(b) Two offences of producing child pornography, contrary to s 68(1) of the Crimes Act 1958 (Vic). The maximum penalty for this offence was 10 years imprisonment. The offender was sentenced to 6 months’
imprisonment for each offence.
(c) Using a carriage service for child pornography material, contrary to s 474.19 of the Criminal Code. The maximum penalty for this offence was 15 years imprisonment. The offender was sentenced to 12 months’
imprisonment for this offence.
(d) Theft, contrary to s 74(1) of the Crimes Act 1985 (Vic). The maximum penalty for this offence was 10 years imprisonment. The offender was sentenced to 6 months’ imprisonment for this offence.
(e)
Possession of child pornography, contrary to s 70(1) of the Crimes Act 1958 (Vic). The maximum penalty for this offence was 10 years
imprisonment. The offender was sentenced to 12 months’ imprisonment
for this offence.
(f) Intentionally visually capturing another person’s genital or anal region, contrary to s 41B of the Summary Offences Act 1966 (Vic). The maximum penalty for this offence was 2 years imprisonment. The offender was
sentenced to 4 months’ imprisonment for this offence.
89. The offender Finley received a total effective sentence of 3 years and 5 months’
imprisonment, with a non-parole period of 2 years and 6 months in respect of both the Commonwealth and State offences. The offender was 28 years of age at the time of the offending, and entered pleas of guilty at the earliest opportunity. He had experienced a troubled and violent upbringing, leaving home at 14 years of age. The offender was diagnosed with a persistent depressive disorder, in partial remission,
and a paedophilic disorder. He was assessed as having a moderate – high risk of re-
offending, with guarded prospects of rehabilitation. Leave to appeal against sentence
was refused.90. The prosecution submitted that the matter of Finley involved a similar, although not identical, summary offence to the invasion of privacy offences in the present matter. Finley was also a matter which had involved more material than in the instant case, and included the production of child pornography material (T29.8-25).
91. In Peters v R [2018] NSWCCA 126 the offender pleaded guilty to one offence of possessing child abuse material, contrary to s 91H(2) of the Crimes Act 1900 (NSW). The maximum penalty for this offence was 10 years imprisonment. The offender pleaded guilty to a further offence of using a carriage service to access child pornography material, contrary to s 474.19(1) of the Criminal Code. The maximum
penalty for this offence was 15 years imprisonment. Analysis of the offender’s seized
devices revealed 676 image and video files, many of which were duplicated across the devices. The offender was 39 years of age at the time of the offences, and had a stable and supportive upbringing. He was assessed as having a low risk of recidivism.
For the possession offence, the offender was sentenced to 18 months’ imprisonment,
to be released after 9 months. For the transmission offence, the offender was
sentenced to 2 years’ imprisonment, to be released after 9 months. The total effective sentence was 2 years and 9 months’ imprisonment, to be released after 18 months
upon entering into a recognizance. On appeal, the offender was re-sentenced to a total effective sentence of 2 years and 4 months, to be released after 15 months upon entering into a recognizance.
92. The prosecution submitted that the offender Peters had received an immediate term of imprisonment, despite factors such as the low risk of reoffending, family support and remorse. It was submitted that the Court of Criminal Appeal had emphasised in this matter the paramount public interest objective in promoting the protection of children (T29.29-38).
93. In R v Porte [2015] NSWCCA 174; 252 A Crim R 277 the offender pleaded guilty to one offence of possessing child abuse material, contrary to s 91H(2) of the Crimes Act 1900 (NSW). The maximum penalty for this offence was 10 years imprisonment. The offender pleaded guilty to a further offence of using a carriage service to access child pornography material, contrary to s 474.19(1) of the Criminal Code. The maximum penalty for this offence was 15 years imprisonment. The offender also pleaded guilty to an offence of possessing a prohibited weapon. The offender possessed 34,143 items of child pornography material. The offender was 47 years of age at the time of the offences, and suffered from spinal degeneration requiring surgery, and was diagnosed with depression and a hoarding disorder. The offender made significant admissions to law enforcement. The offender denied intending to access the offending material, stating that material was automatically included in bulk downloaded files. For the possession offence, the offender was sentenced to 2 years
and 6 months’ imprisonment, with a non-parole period of 15 months. The offender
received a 12 month term of imprisonment for the transmission offence. The
prosecution’s appeal on the basis of manifest inadequacy was upheld, and the
offender resentenced to a total effective sentence of 2 years and 9 months, with a
minimum term of 1 year and 6 months.94. The prosecution acknowledged that R v Porte was a matter which involved significantly more material than the instant case, and noted other relevant differences such as the maximum penalties. The NSW possession offence carried a maximum penalty of 10 years imprisonment, whereas the maximum penalty for the Commonwealth offence is 15 years. Similarly to the present case, the offender had denied intending to access the offending material, stating that it was automatically included in bulk download files (T29.40-47; 30.1-5).
95. I was referred to the comparable cases of R v Johnston [2020] ACTSC 46 (Johnston) and R v Walker [2019] ACTSC (Walker) by counsel for the offender.
96. In Johnston, the offender had pleaded guilty to two offences of using a carriage service to transmit an indecent communication to a person under 16 years of age, or believed to be under 16 years of age contrary to s 474.27A(1) of the Criminal Code. The maximum penalty for this offence was seven years imprisonment. The offender pleaded guilty to a further offence of possessing child abuse material obtained using a carriage service, contrary to s 474.22A(1) of the Criminal Code. The maximum penalty for this offence was 15 years imprisonment. Police detected 291 images constituting child abuse material across three devices belonging to the offender. The offender was 44 years of age and assessed as being at a medium risk of reoffending, and was engaging with a psychiatrist. The offender received 8 month terms of imprisonment for each of the transmission offences, reduced to six months on account of his plea of guilty. For the offence of possessing child abuse material the
offender received a sentence of 14 months’ imprisonment, reduced to 11 months on
account of his plea of guilty. The offender received a total effective sentence of 14
months’ imprisonment, to be released after 4 months.
97. The prosecution submitted that the offending in the matter of Johnston was somewhat of a different nature to the present offending. It was submitted that this involved transmission of indecent communications and possession of less than 300 files or images, and the court had found that the possession offending was at the lower end of the mid-range of objective seriousness (T28.19-30).
98. In Walker, the offender pleaded guilty to one offence of possessing child exploitation material, contrary to s 65(1) of the Crimes Act. The maximum penalty for this offence was 7 years imprisonment. The offender pleaded guilty to a further two offences of using a carriage service to solicit, and transmit, child pornography contrary to s 474.19(1) of the Criminal Code. The maximum penalty for this offence was 15 years imprisonment. A total of 61 offending images and videos were detected on the
offender’s devices. The bulk of the material was at the lower end of the classification
of material of this type. The offender was 22 years of age at the time of the offences, and had experienced a very unstable childhood, displaying behavioural problems from a young age, and reported childhood sexual abuse. The offender received 6
months’ imprisonment for the possession offence, 4 months’ imprisonment for the distribution offence, and 14 months’ imprisonment for the solicitation offence. The total sentence was 16 months’ imprisonment, to be served by way of an ICO.
99. Counsel for offender submitted that the import of Walker was that an ICO is available in matters of this type, and capable of satisfying the requirement of personal and general deterrence (T32.25-30). The prosecution noted the relevant differences in the charges and the subjective circumstances in this matter. The offender Walker was 22 years of age, and had been charged with the ACT possession offence, which carried a 7 year maximum penalty, in comparison with the 15 year penalty in the present matter. The offender Walker possessed less than 100 files, a significantly lesser amount than the present matter. The prosecution accepted that there were other features of the offending by Walker which were very serious, including the solicitation of actual children (T27.39-17; 28.7-35).
100. I have also discussed a number of comparable cases in R v Yardley [2021] ACTSC 2 at [63]-[73] (Yardley).
Statutory and Other Relevant Considerations
101. The offender is to be sentenced for offences against both Commonwealth, and ACT law. As such, the Court is required to have regard to both Commonwealth and ACT sentencing principles: see Yardley at [74].
Commonwealth Offences
102. When sentencing offenders for offences against the laws of the Commonwealth, I am bound to apply the provisions of Pt IB of the Commonwealth Crimes Act, as well as some common law principles of sentencing, including proportionality: see Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58; Bui v DPP (Cth) [2012] HCA 1; 244 CLR 638.
103. State and Territory sentencing laws operate only so far as they are applicable and the laws of the Commonwealth do not otherwise provide. They are excluded where applicable Commonwealth sentencing laws leave no room for their application: see Pham.
104. The Court sentences in the context of s 16A of the Commonwealth Crimes Act, which pertains to matters which the court is to have regard when passing a sentence.
105. The Court is required to impose a sentence of appropriate severity in all the circumstances of the offence under s 16A(1) of the Commonwealth Crimes Act.
106. Section 16A(2) provides a number of mandatory considerations on sentence, which include the consideration of general and specific deterrence, adequate punishment, and rehabilitation. I have taken into account those matters under s 16A(2) that are
relevant to the offender’s sentence.
ACT Offences
107. In sentencing the offender for ACT offences, the court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above.
108. The Court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7 of the Sentencing Act. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, and recognition of harm to the victims are important sentencing considerations.
109. In relation to concurrency, I refer to the following passage from O’Brien v The Queen
[2015] ACTCA 47 at [26], citing Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim
R 41 at [27]:[W]here offences are not separate and distinct, but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent.
ICO Submissions
110. The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. In this case, it was submitted by counsel for the offender that a term of imprisonment could be served by way of ICO.
111. The prosecution accepted that the offender has actively participated in treatment and that this bodes well for his continuing rehabilitation. However, it was submitted that in offending of this nature, any prospects of rehabilitation should be given less weight, in accordance with the application of the principle that general deterrence is the paramount consideration when sentencing for such offences.
Consideration
112. In De Leeuw, the NSW Court of Criminal Appeal stated with respect to offences involving child abuse material at [72], that:
(a) General deterrence is the primary sentencing consideration for offending involving child pornography; (b) Less or limited weight is given to an offender’s prior good character;
(c)
Offending involving child pornography occurs on an international level and is becoming increasingly prevalent with the advent of the Internet as a means of allowing people to access and obtain child pornography;
(d)
Offending involving child pornography is difficult to detect given the anonymity provided by the Internet;
(e)
The possession of child pornography material creates a market for the continued corruption and exploitation of children;
(f)There is a paramount public interest objective in promoting the
protection of children as the possession of child pornography is nota victimless crime — children are sexually abused in order to
supply the market; [and]
(g) The fact that an offender does not pay to access a child pornography website or was not involved in the distribution or sale of child pornography does not mitigate the offending.
113. As with every sentencing exercise, careful attention must be paid to the maximum penalties, which provide a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357 (Markarian).
114. It is important to underline in sentencing the offender that child pornography offences are not victimless crimes. Accessing child pornography creates a market for the continued exploitation of children. Children are sexually abused to supply the market for this depraved material. The distribution of child pornography is a global problem. Child pornography is a depraved black hole of the internet: see R v KB [2019] ACTSC 136 at [90]. It is destructive of young lives. General deterrence is a paramount consideration.
115. In relation to the invasion of privacy offences, the prosecution submitted, and I accept, that general deterrence must also loom large, in order to protect the community and deter would-be offenders. It was submitted, and I accept, that offences of this nature are inherently hard to detect, particularly with the ongoing development of technology. This was evident in this case, where the cameras in question were concealed as every-day objects.
116. When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v The Queen [2016] ACTCA 53 at [64] (Zdravkovic). The real
question is whether the total sentence is “just and appropriate” to reflect the total
criminality: Mill v The Queen (1988) 166 CLR 59 (Mill); R v Meyboom [2012] ACTCA
48 at [66]; Zdravkovic at [71].117. I note, as referred to by the prosecution, s 16A(2AAA) of the Commonwealth Crimes Act which provides that when sentencing an offender for a Commonwealth child sex offence, the Court must take into account the objective of rehabilitation:
16A Matters to which court to have regard when passing sentence etc.—federal
…
(2AAA) In determining the sentence to be passed, or the order to be made, in respect of any person for a Commonwealth child sex offence, in addition to any other matters, the court must have regard to the objective of rehabilitating the person, including by considering whether it is appropriate, taking into account such of the following matters as are relevant and known to the court:
(a) when making an order—to impose any conditions about rehabilitation or treatment options;
(b) in determining the length of any sentence or non-parole period—to include sufficient time for the person to undertake a
rehabilitation program.
118. Rehabilitation is an important consideration having regard to the offender’s
participation in treatment with Dr Boer, as submitted by both prosecution and defence
counsel.
119. I take these principles and legislation into account on sentence.
Intensive Correction Order
120. I gave considerable consideration to the possibility of imposing an ICO, but such an order involves a significant degree of leniency when compared to a sentence involving full-time imprisonment. The objective seriousness of the present offences, combined with due regard to the maximum penalties (Markarian), militates against a disposition by way of ICO. I have taken all matters into account in the sentencing process of instinctive synthesis, and have come to the conclusion that it is not appropriate in this case, taking all relevant matters into account.
Recognizance release order
121. The Court may not impose a single non-parole period or recognizance release order in respect of both Commonwealth and ACT terms of imprisonment: Commonwealth Crimes Act s 19AJ.
122. In relation to Commonwealth offences, the Court must fix a single recognizance release order if a sentence of imprisonment exceeding six months but not exceeding three years is imposed: Commonwealth Crimes Act ss 19AC(1)(b); 19AC(3). Where the sentence of imprisonment imposed exceeds three years, the Court must fix a single non-parole period: s 19AB(1).
123. There is “no judicially determined norm or starting point (whether expressed as a
percentage of the head sentence, or otherwise) for the period of imprisonment that a federal offender should actually serve in prison before release on a recognisance release order”: Hili at [13]. The minimum term that be served should be determined by
reference to Pt IB of the Commonwealth Crimes Act and the principles in Power v The Queen (1974) 131 CLR 623, Deakin v The Queen (1984) 58 ALJR 367, and Bugmy v The Queen (1990) 169 CLR 525: Hili at [44]. These cases require an assessment of the minimum time that justice requires the person to serve having regard to all the circumstances of the offence.
124. Where an offender is sentenced to a term of imprisonment for both Commonwealth and Territory offences, the Court must direct when the Commonwealth sentence commences in accordance with s 19(3) of the Commonwealth Crimes Act, which states:
19 Cumulative, partly cumulative or concurrent sentences
General requirements
…
(3) Where:
(a) a person is convicted of a federal offence or offences, and a State or
Territory offence or offences, at the same sitting; and
(b)
the person is sentenced to imprisonment for more than one of the offences;
the court must, by order, direct when each federal sentence commences but
so that:
(c)
no federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences; and
(d) if a non-parole period applies in respect of any State or Territory sentences—the first federal sentence to commence after the end of that
non-parole period commences immediately after the end of the period.
125. As has been noted in Edwin v The Queen [2014] ACTCA 47 at [11], when sentencing
in the context of both Commonwealth and Territory offences, “a sentencing judge
must accommodate the two distinct regimes”. Necessarily, the structure of the
sentences imposed must accord with these two regimes. It is therefore appropriate to commence with the Territory offences and accumulate the Commonwealth offences upon this sentence in order to encompass the entire criminality associated with both the Territory and Commonwealth offences.
Sentence
126. As stated above, in coming to a sentence by way of instinctive synthesis, I have taken into account the matters discussed above, including the objective seriousness of the offences, and subjective matters.
127. The appropriate sentence for each of the fifteen Territory offences of capturing visual data that is an invasion of privacy and indecent is 4 months, reduced to 3 months on account of the discount for the plea of guilty.
128. The appropriate sentence for each of the two Commonwealth offences of possessing or controlling child abuse material, obtained or accessed using a carriage service is 19 months, reduced to 14 months on account of the discount for the plea of guilty.
129. The appropriate sentence for the Commonwealth offence of using a carriage service to access child abuse material is 19 months, reduced to 14 months on account of the discount for the plea of guilty.
130. The sentences will be partially concurrent, in accordance with the principle of totality discussed above, and I will set a recognizance release order after 18 months of imprisonment. The offender will therefore be released on 11 February 2022.
Orders
131. I make the following orders:
(a) I record convictions for each of the offences. (b)
In respect of the Territory offence of capturing visual data that is an invasion of privacy and indecent (CC2020/13011) the offender is sentenced to a term of 3 months of imprisonment, commencing on 12 August 2020 and ending on 11 November 2020.
(c)
In respect of the Territory offence of capturing visual data that is an invasion of privacy and indecent (CC2020/13012) the offender is sentenced to a term of 3 months of imprisonment, commencing on 12 August 2020 and ending on 11 November 2020.
(d)
In respect of the Territory offence of capturing visual data that is an invasion of privacy and indecent (CC2020/13013) the offender is sentenced to a term of 3 months of imprisonment, commencing on 12 August 2020 and ending on 11 November 2020.
(e)
In respect of the Territory offence of capturing visual data that is an invasion of privacy and indecent (CC2020/13014) the offender is sentenced to a term of 3 months of imprisonment, commencing on 12 October 2020 and ending on 11 January 2021.
(f)In respect of the Territory offence of capturing visual data that is an invasion of privacy and indecent (CC2020/13015) the offender is sentenced to a term of 3 months of imprisonment, commencing on 12 October 2020 and ending on 11 January 2021.
(g) In respect of the Territory offence of capturing visual data that is an invasion of privacy and indecent (CC2020/13016) the offender is sentenced to a term of 3 months of imprisonment, commencing on 12 October 2020 and ending on 11 January 2021. (h) In respect of the Territory offence of capturing visual data that is an invasion of privacy and indecent (CC2020/13017) the offender is sentenced to a term of 3 months of imprisonment, commencing on 12 December 2020 and ending on 11 March 2021. (i) In respect of the Territory offence of capturing visual data that is an invasion of privacy and indecent (CC2020/13018) the offender is sentenced to a term of 3 months of imprisonment, commencing on 12 December 2020 and ending on 11 March 2021.
(j) In respect of the Territory offence of capturing visual data that is an invasion of privacy and indecent (CC2020/13019) the offender is sentenced to a term of 3 months of imprisonment, commencing on 12 December 2020 and ending on 11 March 2021.
(k) In respect of the Territory offence of capturing visual data that is an invasion of privacy and indecent (CC2020/13020) the offender is sentenced to a term of 3 months of imprisonment, commencing on 12 February 2021 and ending on 11 May 2021. (l) In respect of the Territory offence of capturing visual data that is an invasion of privacy and indecent (CC2020/13021) the offender is sentenced to a term of 3 months of imprisonment, commencing on 12 February 2021 and ending on 11 May 2021.
(m)
In respect of the Territory offence of capturing visual data that is an invasion of privacy and indecent (CC2020/13022) the offender is sentenced to a term of 3 months of imprisonment, commencing on 12 February 2021 and ending on 11 May 2021.
(n)
In respect of the Territory offence of capturing visual data that is an invasion of privacy and indecent (CC2020/13023) the offender is sentenced to a term of 3 months of imprisonment, commencing on 12 April 2021 and ending on 11 July 2021.
(o)
In respect of the Territory offence of capturing visual data that is an invasion of privacy and indecent (CC2020/13024) the offender is sentenced to a term of 3 months of imprisonment, commencing on 12 April 2021 and ending on 11 July 2021.
(p)
In respect of the Territory offence of capturing visual data that is an invasion of privacy and indecent (CC2020/13025) the offender is sentenced to a term of 3 months of imprisonment, commencing on 12 April 2021 and ending on 11 July 2021.
(q)
In respect of the Commonwealth offence of possessing or controlling child abuse material, obtained or accessed using a carriage service (CC2020/9621) the offender is sentenced to a term of 14 months of imprisonment, commencing on 12 April 2021 and ending on 11 June 2022.
(r)
In respect of the Commonwealth offence of possessing or controlling child abuse material, obtained or accessed using a carriage service (CC2020/9622) the offender is sentenced to a term of 14 months of imprisonment, commencing on 12 November 2021 and ending on 11 January 2023.
(s)
In respect of the Commonwealth offence of using a carriage service to access child abuse material (CC2020/9623) the offender is sentenced to a term of 14 months of imprisonment, commencing on 12 March 2022 and ending on 11 May 2023.
(t)In respect of the Commonwealth offences, I set a recognizance release order, commencing on 11 February 2022 with a recognizance self in the sum of $500 for a period of two years, commencing on 11 February 2022 and expiring on 10 February 2024, with conditions that:
i. The offender accepts the supervision of ACT Corrective Services and obey all reasonable directions of officers of that service or their delegates;
ii. The offender undertake such assessments, counselling or treatment for sex offending as directed; and
iii. The offender be assessed for and, if found suitable, directed to attend the adult sex offender program.
I certify that the preceding one hundred and thirty- one [131] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson.
Associate:
Date:
5
38
0