R v Cecchin - [2017] SASCFC 109

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v CECCHIN
[2017] SASCFC 109
Judgment of The Court of Criminal Appeal
(The Honourable Justice Parker, The Honourable Justice Lovell and The Honourable Justice Doyle)
4 September 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER
Appeal against sentence.
The appellant, who suffers from Autism Spectrum Disorder, pleaded guilty to five charges relating to the access, possession and dissemination of child exploitation material. These charges arose from an original and subsequent ex officio Information.
The sentencing Judge sentenced the appellant to three years imprisonment reduced to two for the charges relating to the original Information, and nine years reduced to five years and five months for the charges arising from the ex officio Information. These were ordered to be served cumulatively, resulting in a final sentence of seven years and five months. A non-parole period of four years and six months was fixed.
Held per Lovell J, Parker & Doyle JJ agreeing (allowing the appeal):
1. That the sentence imposed by the Judge was manifestly excessive and should be set aside;
2. That in fixing the consecutive sentences the Judge erred in not taking account of the overlap in the factors relevant in determining the length of each sentence.
3. The appellant be resentenced to a term of imprisonment of four years, with a non-parole period of two years and three months.
Criminal Law (Sentencing) Act 1988 s 18A, referred to.
Markarian v The Queen (2005) 228 CLR 357; AB v The Queen (1999) 198 CLR 111; R v Turvey [2017] SASCFC 28; Hili v The Queen (2010) 242 CLR 520, applied.
R v Donald, Pitt and Whittaker (2016) 126 SASR 276; R v Reilly [2013] SASCFC 106; R v Ohmer [2011] SASCFC 44; R v Hill (2011) 110 SASR 588; R v Hayes [2012] SASCFC 96; R v Padberg (2010) 107 SASR 386; R v Howat [2017] SASCFC 41; R v Morse (1979) 23 SASR 98; R v Arthur [2017] ACTSC 23; R v Bolbot [2013] SASCFC 110, discussed.

R v CECCHIN
[2017] SASCFC 109
Court of Criminal Appeal: Parker, Lovell and Doyle JJ
PARKER J:

I agree with the reasons of Lovell J and the orders that he proposes.
LOVELL J:
Background
In 1996 the appellant was diagnosed as suffering from Asperger’s syndrome, now referred to as Autism Spectrum Disorder (ASD). On 11 September 2014 in the Adelaide Magistrates Court the appellant pleaded guilty to the following charges:
Count 1: aggravated possession of child exploitation material (CEM);
Count 2: aggravated dissemination of CEM;
Count 3: aggravated production of CEM.
The offences were aggravated as the appellant knew that the victim of the offending was under the age of 14 years. The offending occurred between January 2011 and February 2013. The appellant was committed to the District Court for sentence.
On 28 August 2015, in the District Court, the appellant made an application to withdraw his guilty plea on Count 3. This application involved him waiving legal professional privilege and then giving evidence. The waiver of privilege led to correspondence between the appellant and his former solicitor becoming available to the prosecution. During the course of his evidence the appellant made admissions of other criminal behavior.
As a result of the admissions the Office of the Director of Public Prosecutions laid an Information (ex officio) in the District Court (the District Court Information) charging the appellant with three further counts namely, aggravated obtaining access to; aggravated possession of; and aggravated dissemination of CEM. The conduct was alleged to have occurred between August 2012 and September 2014.
The appellant pleaded guilty to all three counts on the day the fresh Information was filed. The application to withdraw the guilty plea to Count 3 on the Magistrates Court Information was granted and the prosecution tendered no further evidence on that charge.
On 29 November 2016 the appellant was sentenced on Counts 1 and 2 on the original Magistrates Court Information in addition to the three counts on the District Court Information.
Sentences Imposed
The maximum penalty for each of the two counts of aggravated possession of CEM is imprisonment for a period of seven years. The same maximum penalty applies for the count of aggravated accessing of CEM. The maximum penalty for each of the two counts of aggravated dissemination of CEM is 12 years imprisonment.
The Judge first imposed sentence on the two counts on the Magistrates Court Information. He utilised s 18A of the Criminal Law (Sentencing) Act 1988 and imposed one sentence. The appellant was entitled to up to 30 per cent discount on his sentence due to his timely plea of guilty. The Judge imposed a sentence of three years imprisonment reduced to two years imprisonment to take into account his plea.[1]
[1] That is a reduction of one third rather than 30 per cent. However no point was taken in relation to that matter on appeal.
With respect to the three charges on the District Court Information the Judge, using s 18A of the Criminal Law (Sentencing) Act 1988, began with a notional starting point of nine years imprisonment and then applied a reduction of 40 per cent in accordance with s 18A of the Criminal Law (Sentencing) Act 1988 leaving a sentence of five years and five months. The Judge ordered that the two sentences be served cumulatively.
The final sentence was seven years and five months imprisonment. The Judge fixed a non-parole period of four years and six months.
Factual Basis for Sentencing
On 10 September 2014 the police attended the appellant’s home address at Flagstaff Hill. A number of computers, including laptop computers, hard drives and other devices were seized. Evidence obtained from the computers led to the initial three charges on the Magistrates Court Information. As discussed the appellant was sentenced only on the first two charges.
The factual basis of Counts 1 and 2 was that the appellant possessed and disseminated a video file which depicted him masturbating with a photograph of a young girl alongside him. The video was categorized as a level 4 video on the Oliver Scale.
The factual basis upon which the appellant was sentenced for the three offences contained in the District Court Information offences was outlined by the Judge as follows:
First, you [the appellant] were charged with aggravated obtaining access to child pornography.
…
This offending occurred against a background of a course of conduct by which you [the appellant] accessed child exploitation material on The Love Zone and privately shared it with others between September 2012 up to late August 2014. You [the appellant] accessed that material on The Love Zone as a Special VIP member of The Love Zone.
…
Secondly, you [the appellant] were charged with aggravated possessing child pornography.
…
This charge is representative of the fact that you possessed approximately 1,500 items of child exploitation material on the day of your [the appellant’s] arrest. They comprised approximately 10% in video form and 90% in the form of images. The material ranged from categories 1 to 4 of the Child Exploitation Tracking System classification standard. They were predominantly in categories 1 to 3, but there were also items in category 4, which is a particularly heinous category as it includes penetrative sexual activity between children and between children and adults. The material that constituted your [the appellant’s] possession of child pornography was collected by you [the appellant] over a period of about three years from multiple other users.
…
Thirdly and finally, you [the appellant] were charged with aggravated disseminating child pornography.
…
This charge relates to an occasion between 1 August 2014 and 31 August 2014.
…
This offending occurred against a background of a course of conduct which can be categorised as you [the appellant] disseminating child exploitation material to The Love Zone between September 2012 up to late August 2014. That dissemination by you [the appellant] was as per the requirements as a Special VIP membership of The Love Zone. Special VIP membership required the dissemination of child exploitation material at a particular level and with a particularly frequency and regularity. These matters are consistent with your letters to your [the appellant’s] former lawyer which set out the time limits in which uploads must occur to maintain Special VIP membership and with admissions by you [the appellant] in this court on 16 December 2015.
The charges laid in relation to the District Court Information arose because the prosecution did not accept the factual basis of the plea submitted by the appellant in relation to the charges on the Magistrates Court Information. The information the appellant provided in a pre-sentence report ordered by the Court, and in medical reports obtained by the appellant was disputed by the prosecution. The appellant submitted that his offending was limited to the alleged conduct; the prosecution submitted that his offending was more extensive. As a result of the application to withdraw his plea in relation to count 3 on the Magistrates Court Information, the appellant, through the waiver of legal professional privilege and his subsequent evidence, effectively admitted that his conduct was wider than he had suggested in his earlier submissions and in the information provided to the report writers. Letters the appellant had written to his solicitor contradicted the information he had given to the report writers. It is clear that the appellant misled the report writers about the extent of his offending.
What is also clear is that the offending charged in relation to the District Court Information was an extension of the offending charged in relation to the Magistrates Court Information. It was in effect a continuous course of conduct. It can be seen that the date range of the offending alleged in each Information overlaps.
Doctor Begg, a psychiatrist, and Dr Young, a psychologist with expertise in ASD, also gave evidence before the Judge. The Judge preferred the evidence of Dr Begg. The Judge gave clear reasons for his findings and they were not challenged on appeal. Doctor Begg gave evidence that the appellant had a Paedophilic Disorder and the Judge accepted that evidence. He stated, as was open to him, that he did not accept some of Dr Young’s opinions as they were based on an incorrect history. However what was not disputed was the diagnosis of ASD which had been made as early as 1996.
Doctor Begg, despite his diagnosis, was of the opinion that the appellant presented as a person with a “low risk of reoffending”.
Legal principles
The four grounds of appeal relied on by the appellant are that:
1the starting point for the District Court Information offences was manifestly excessive for a first offender (the applicant’s offending began when he was about 23 years of age) who suffered from ASD and had been assessed as presenting a low risk of re-offending;
2having regard to the nature of the offences, the period of time during which they occurred and the circumstances generally, the Judge should have considered ordering some concurrency;
3in saying “your child pornography offending was prolonged, extensive and grave. The actual extent and detail of it is still unknown”, the Judge speculated as to the commission of further offending of which there was no evidence; and
4by not mentioning that the appellant was a relatively young man with no previous convictions the Judge failed to consider these factors in the exercise of the sentencing discretion.
The appellant alleges that the sentence was affected by a number of specific areas and, in any event, is manifestly excessive.
As to whether a sentence is affected by error, in Markarian v The Queen Gleeson CJ, Gummow, Hayne and Callinan JJ said:[2]
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".
(Citations omitted)
[2] (2005) 228 CLR 357 at [25]. See also Dinsdale v The Queen (2000) 202 CLR 321 at [3] (Gleeson CJ and Hayne J), [21] (Gaudron and Gummow JJ), [58] (Kirby J).
In AB v The Queen[3] Hayne J explained the significance of the difference between specific error and manifest excess or inadequacy to the task of this Court. He said:[4]
The difference between cases of specific error and manifest excess is not merely a matter of convenient classification. It reflects a fundamental difference in what the appellate court does. In the former case, once an appellate court identifies an error, the sentence imposed below must be set aside and the appellate court is then required to exercise the sentencing discretion afresh. The offender must be re-sentenced unless, of course, in the separate and independent exercise of its discretion the appellate court concludes that no different sentence should be passed. By contrast, in the case of manifest excess, the error in reasoning of the sentencing Judge is not discernible; all that can be seen is that the sentence imposed is too heavy and thus lies outside the permissible range of dispositions. Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed.
As Hinton J stated in R v Turvey:[5]
…this Court first determines whether a sentence imposed is affected by error in the House v The King sense, if it is, the Court does not analyse the error in order to determine whether it has influenced the outcome and the extent, rather, the sentencing discretion having miscarried, the Court proceeds to consider the exercise of the sentencing discretion afresh and, in the light thereof, whether an appellant should be re-sentenced.
[3] (1999) 198 CLR 111.
[4] Ibid [129]-[130].
[5] [2017] SASCFC 28 at [104].
Appeal Grounds 1 and 2
It is convenient to deal with these grounds together. In my view the starting point of 12 years before discounts, for all of the offending, is manifestly excessive in the circumstances. Further, in my view, the Judge erred in making the two sentences cumulative. The appellant is to be resentenced. My reasons for so concluding are set out below.
The Judge had to sentence the appellant for five offences which were representative of a course of conduct spanning approximately three years. He possessed one video of himself masturbating with a picture of a young child in front of him. He had disseminated that video. He also possessed 1,500 files of CEM comprising 90 per cent photographs and 10 per cent videos ranging from categories 1-4 on the Oliver Scale. He had disseminated some of that material. The appellant had been a VIP member of a child pornography website which, in order to retain VIP status, required regular dissemination of CEM on that site.
The Judge described the offending as prolonged, extensive and grave. That was an accurate description of the offending.
The Judge made a number of findings on the evidence and other material before him. Most of the findings were not challenged. The Judge, as was open to him, found the appellant to have been untruthful about matters when speaking to various expert witnesses and when giving evidence.
In sentencing the appellant the Judge stated:
It is difficult for me to have any confidence in respect of much of what you said to be some of the circumstances of your offending, why you offended in the ways you did, and what you experienced emotionally when you offended.
I strongly suspect that you do not know yourself, or you are not prepared to face or acknowledge the true circumstances of your offending or the reasons for it. Nor do you fully appreciate the enormity of what you did.
You have, over the many months of the sentencing process, told different people, including this court, different things about yourself and your offending. I think it is probable that you had told them that to make your conduct less blameworthy, and your offences less heinous.
The Judge had the advantage of hearing the appellant, Dr Begg and Dr Young give evidence. The Judge gave clear reasons for these findings and they were not challenged on appeal. The Judge found, in effect that the appellant had little or no insight into the offending and did not appreciate its enormity. The Judge could not accept the appellant’s explanations for his offending. These findings of course do not affect the objective seriousness of the offending.
The Judge did find, however, that the appellant suffered from Autism Spectrum Disorder and that because of his ASD he would be “more vulnerable in prison”. The appellant, who was aged 30 years at the time of sentencing, had no prior convictions.
The Judge approached the sentencing task in accordance with the principles enunciated in R v Donald, Pitt and Whitaker.[6] The appellant was entitled to up to 30 per cent discount from his sentence for an early plea in relation to the two charges on the Magistrates Court Information; he was entitled to up to 40 per cent discount for his early plea in relation to the charges on the District Court Information. The Judge, correctly, grouped the offences according to the percentage discount to be applied. The Judge however accumulated the two sentences and made no allowance for concurrency or partial concurrency. He simply stated that the accumulation of the two sentences “was appropriate”.
[6] (2016) 126 SASR 276.
The appellant submitted that from a reading of the whole of the sentencing remarks the Judge considered that the two charges on the Magistrates Court Information were a separate incursion into crime. However, it was submitted, the prosecution case was that the five charged offences were part of a continuing course of conduct. It was conceded on appeal by the respondent, that the website used by the appellant and referred to in the Magistrates Court matters was the same one relating to the charges on the District Court Information. Thus it was submitted that the Judge erred in making the sentences cumulative as there was an overlapping of factors brought to account when the Judge determined the length of each sentence.
Further, to support the submission that the starting point of 12 years imprisonment was manifestly excessive, the appellant referred to a number of other cases as being indicative in a general way of sentences imposed involving the possession and dissemination of CEM.
The facts in R v Reilly[7] are instructive. Reilly was detected with over 28,000 images of CEM, many of which depicted children under the age of 14. He had been accessing a file sharing website that enabled him to receive and disseminate CEM for approximately nine months.
[7] [2013] SASCFC 106.
Reilly was not a first time offender having been convicted of possessing CEM in 2006. He was also on the Child Sex Offenders register and as a result of his offending he was in breach of various reporting conditions. Whilst on bail for those offences Reilly was detected accessing CEM at an internet café. He had downloaded approximately a further 7,000 images of CEM and was accordingly charged with further offences.

Against that background the sentencing Judge imposed, before discount, five years imprisonment for the first charges and four years imprisonment for the offences committed whilst on bail. The sentences were made cumulative.
It can be observed that Reilly had over 35,000 images in his possession, had a previous conviction and committed some of his offending whilst on bail for similar offences.
In R v Ohmer,[8] the defendant pleaded guilty to one count of aggravated production of CEM and one count of aggravated possession of CEM. Ohmer was caught filming young children changing at a swimming pool and a subsequent search of his premises uncovered approximately 200,000 images and videos of CEM. The material predominately fell within categories 1 - 4 on the Oliver Scale but included material within category 5. Ohmer had no prior convictions and was aged 31 at the time of sentence. He was sentenced on the basis of a 10 year interest in CEM. On appeal his sentence of four years imprisonment with a non-parole period of 18 months, having been reduced from a starting point of five years on account of his guilty plea, was found not to be manifestly excessive.
[8] [2011] SASCFC 44.
In R v Hill, [9] Hill was convicted of one count of aggravated possession of CEM. The conviction related to the possession of 11,811 images of CEM encompassing the full Oliver Scale including images depicting bestiality and bondage. Hill also possessed a further 500,000 images of young children in non-sexual poses.
[9] (2011) 110 SASR 588.
Hill successfully appealed against his sentence. Having been sentenced to 16 months imprisonment with a non-parole period of six months to be served immediately he was resentenced to a suspended sentence of 13 months imprisonment with a non-parole period of six months. The original sentencing judge started at two years before reducing the sentence by a third on account of his early guilty plea.
In R v Hayes[10] this Court upheld a sentence imposed of 15 months imprisonment with 12 months non-parole for one count of aggravated possession of CEM and 18 months imprisonment with an order for release after 12 months for the Commonwealth offence of using a carriage service to access child pornography. The sentencing judge started at 18 months imprisonment for the possession charge before applying a three month (17 per cent) discount in recognition of Hayes’ guilty plea.
[10] [2012] SASCFC 96.
The possession charge concerned over 5,000 images and videos of CEM accessed over a seven month period. Whilst the majority of the material was in categories 1 and 2 of the relevant scale there were 97 images of category 5 material.
The appellant also relied upon the cases of R v Padberg[11] and R v Turvey.[12]
Each case of course turns on its own facts and each sentence is the product of a broad discretion taking into account the full range of matters relevant to that sentence. Similar cases can be indicative, in a general way, of sentences that have been imposed in other matters involving offending of the same kind.[13]
[11] (2010) 107 SASR 386.
[12] [2017] SASCFC 28.
[13] R v Howat [2017] SASCFC 41 at [55] (Doyle J).
The respondent conceded that the charges represented a continuing course of conduct. However the respondent submitted that the Judge had, in any event, sentenced on the basis of a continuous course of conduct. I note there is nothing in the Judge’s sentencing remarks to support that submission. The length of the sentence on the Magistrates Court Information charges suggests the Judge considered those matters to be a separate incursion into crime.
The respondent further submitted that the offending was extremely serious and therefore was deserving of severe punishment. The appellant, it was submitted, showed little or no insight into his conduct. The fact that he was a first offender carries little weight in matters such as this. I accept those submissions. The respondent further submitted that the sentence was not manifestly excessive.
The approach to be adopted when considering the question of manifest excess was discussed in Hili v The Queen where the Court said:[14]
As was said in Dinsdale v The Queen, “[m]anifest inadequacy of sentence, like manifest excess, is a conclusion”. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”. But, by its very nature, that is a conclusion that does not admit of lengthy exposition. And, in the present matters, the Court of Criminal Appeal, having described the circumstances of the offending and the personal circumstances of the offenders, said that “the sentence imposed in these matters is so far outside the range of sentences available that there must have been error”
… But what reveals manifest excess, or inadequacy, of sentence is consideration of all of the matters that are relevant to fixing the sentence. The references made by the Court of Criminal Appeal to the circumstances of the offending and the personal circumstances of each offender were, therefore, important elements in the reasons of the Court of Criminal Appeal.

[14] (2010) 242 CLR 520, 538-539 at [59]-[60].

Factors to be considered when deciding the question of whether a sentence is manifestly excessive include the maximum penalty for the offence, the standards of sentencing customarily observed for that offending, where the criminal conducts sits in the scale of seriousness of crimes of that type and the personal circumstances of the offender.[15]
[15] R v Morse (1979) 23 SASR 98.
It is not open for this Court to interfere with a sentence simply because its members would have imposed a lower sentence. However in my view the sentence imposed in this case was manifestly excessive.
What is essential in fixing consecutive sentences, as the Judge did here, is that there must be no overlapping of the factors brought into account in determining the length of each sentence. In my view here there were overlapping factors requiring consideration of concurrency or at least partial concurrency.
In any event the starting point of nine years imprisonment for the offences on the District Court Information was of itself manifestly excessive. The sentence imposed is so far outside the range of available sentences that there must have been an error. In my view the sentence imposed is too far above the prevailing standard to be regarded as a proper sentence for the conduct which is to be punished.
I would allow the appeal and resentence the appellant.
There is therefore no need to consider the other grounds of appeal.
Resentence
There is a relatively uniform approach across Australia applied to sentencing for CEM offences. Recently Robinson AJ, in R v Arthur,[16] stated:
[16] [2017] ACTSC 23.
There is now a body of propositions, established at the appellate level, which applies to sentencing for child pornography offences. It is convenient to set out these propositions from R v De Leeuw [2015] NSWCCA 183 at [72]-
(a)     Unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted:
(b)     The objective seriousness of the offending is ordinarily determined by reference to the following factors:
(i) the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;
(ii)the number of items or images possessed;
(iii)whether the material is for the purpose of sale or further distribution;
(iv)whether the offender will profit from the offence;
(v)in the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised;
(vi)the length of time for which the pornographic material was possessed:
(c)     General deterrence is the primary sentencing consideration for offending involving child pornography:
(d)     Less or limited weight is given to an offender’s prior good character:
(e)     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:
(f)      Offending involving child pornography is difficult to detect given the anonymity provided by the Internet:
(g)     The possession of child pornography material creates a market for the continued corruption and exploitation of children:
(h)     There is a paramount public interest objective in promoting the protection of children as the possession of child pornography is not a victimless crime - children are sexually abused in order to supply the market:
(i)      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:
(Citations Omitted)
These principles were adopted in R v Turvey.[17]
[17] [2017] SASCFC 28.
The seriousness of offending involving child pornography has been referred to in a number of cases. In Turvey Hinton J, in referring to the victims of child pornography, said:[18]
Sight should never be lost of the fact that the distribution of child pornography results in the continued re-victimisation of the child featured, not to mention the corrupting influence it has on those who access the material. It is for these reasons that whilst an intention to profit or benefit from the material will aggravate the offence, absence of such profit or benefit is not mitigatory.
….The ongoing and real risk of re-victimisation and the perpetual exploitation of the child that dissemination over the Internet has demands that paramountcy be afforded general deterrence.
[18] [2017] SASCFC 28 at [136]-[138].
In R v Bolbot the Court stated:[19]
Offending of this type will, in most cases, result in a custodial sentence. General deterrence is of heightened significance when considering this type of crime. Further, s 10(2)(c) of the Sentencing Act provides that, in the case of an offence involving the sexual exploitation of a child, the need to protect children by ensuring that paramount consideration is given to the need for general and personal deterrence is a factor to which the court must give proper effect.
Child pornography is not a victimless crime. It causes enormous damage to child victims, and that damage has long-term effects. Those who promote this offending do so for profit and those who view these images and access the various sites which display these images provide the demand for this offensive material.
It is extremely difficult to detect and apprehend those who are involved in the production of this material, and one way in which the court can reduce the prevalence of the material is to deter those who view it and access the various sites on which it is available.
Further factors to which the court will have regard are the number of images, the nature and content of those images, the age of the children, and the period over which the offending has taken place.
[19] [2013] SASCFC 110 at [27]-[30].
This offending was serious. As the courts have said consistently the creation and dissemination of CEM is a serious social evil. Persons who involve themselves in this type of conduct must expect severe sentences.
As mentioned earlier the appellant suffers from ASD. The Judge heard evidence from the appellant as well as from Dr Begg and Dr Young. There has been no challenge to his findings in relation to the evidence and on a resentence this Court should, in the absence of a compelling reason, resentence on the basis of those findings. The Judge found that he was unable to accept much of what the appellant had said in evidence. The Judge accepted the evidence of Dr Begg and in particular his diagnosis that the appellant has a Paedophilic Disorder. Despite that Dr Begg was of the view that the appellant was a “low risk of reoffending”.
It was accepted by the Judge that because of his ASD the appellant would find time in prison more taxing as he had become a “target whilst in prison”. The Judge accepted that because of his ASD the appellant was socially naïve and therefore “vulnerable” in prison.
The appellant is still relatively young. He has no prior convictions. He is assessed as being a “low risk” of reoffending.
For the two offences to which the appellant pleaded guilty in the Magistrates Court I would use s 18A of the Criminal Law (Sentencing) Act 1988 and impose one sentence. I would start with a sentence of imprisonment of 12 months. As he pleaded guilty the appellant was entitled to up to 30 per cent discount on that sentence. I reduce the sentence to eight months and two weeks imprisonment to take into account the guilty plea.
For the three offences on the District Court Information to which the appellant pleaded guilty I would again use s 18A and impose one sentence. I would start with a term of imprisonment of six years. The appellant pleaded guilty early and was entitled to up to a 40 per cent discount for that plea. To take into account the plea I would reduce the sentence to three years and eight months imprisonment.
I would make the sentences partially concurrent. I would impose a final sentence of four years imprisonment.
Given that the appellant suffers from ASD it is likely that he would benefit from a longer than usual period on parole. I would fix a non-parole period of two years and three months.
Both the head sentence and non-parole period would run from when the appellant was first taken into custody, namely 16 December 2015.
Orders
The appeal is allowed and the sentence set aside. The appellant is resentenced to a term of imprisonment of four years with a non-parole period fixed of two years and three months imprisonment. Both the head sentence and non-parole period are to run from 16 December 2015.
DOYLE J:
I would allow the appeal. I agree with the reasons of Lovell J, and with the orders and fresh sentence he has proposed.