R v Cook
[2018] TASCCA 20
•14 December 2018
[2018] TASCCA 20
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: R v Cook [2018] TASCCA 20
PARTIES: R
v
COOK, Christopher Kenneth
FILE NO: CCA 1588/2018
DELIVERED ON: 14 December 2018
DELIVERED AT: Hobart
HEARING DATE: 1 October 2018
JUDGMENT OF: Pearce J, Brett J and Marshall AJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Multiple counts of using carriage service for child pornography material and child abuse material and to transmit indecent communication to a person under 16 – Aggregate sentence of imprisonment for 15 months with release on recognisance after 10 months manifestly inadequate.
Criminal Code (Cth) ss 474.19(1), 474.22(1) and 474.27A(1).
Taylor v The Queen [2015] TASCCA 7, applied.
Aust Dig Criminal Law [3521]
Criminal Law – Sentence – Sentencing procedure – Taking outstanding or further offences into account – Error to convict of offences to be taken into account under the Crimes Act 1914 (Cth), s 16BA.
Crimes Act 1914 (Cth), s 16BA.
De Lorenzo v DPP (Cth) [2017] VSCA 270; Le v The Queen [2017] NSWCCA 26, applied.
Aust Dig Criminal Law [3319]
REPRESENTATION:
Counsel:
Appellant: K Breckweg
Respondent: F Cangelosi
Solicitors:
Appellant: Director of Public Prosecutions (Cth)
Judgment Number: [2018] TASCCA 20
Number of paragraphs: 89
Serial No 20/2018
File No CCA 1588/2018
THE QUEEN v CHRISTOPHER KENNETH COOK
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PEARCE J
BRETT J
MARSHALL AJ
14 December 2018
Orders of the Court
Appeal allowed.
The sentencing orders made on 25 May 2018 are quashed.
Respondent re-sentenced as follows:
i Convicted on counts 1 to 14 of the indictment.
ii On counts 1 to 13, the respondent is sentenced to imprisonment for four years, commencing 4 May 2018, with a non-parole period of two years.
iii On count 14, the respondent is sentenced to imprisonment for four months commencing 4 May 2018.
iv The HP Pavilion laptop computer (exhibit 37491-697-3) and the Compac computer (exhibit 37491-696-4) forfeited to the Commonwealth.
v It is directed that the respondent's name is placed on the register under the Community Protection (Offender Reporting) Act 2005, and he is to comply with the reporting conditions as required by that Act for five years from his release.
The Court will, in accordance with the Crimes Act 1914 (Cth), s 16BA(8), certify that in passing sentence on count 11 it has taken into account the offences admitted by the respondent listed in the notice given under s 16BA dated 5 April 2018.
Serial No 20/2018
File No CCA 1588/2018
THE QUEEN v CHRISTOPHER KENNETH COOK
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PEARCE J
14 December 2018
The sentence under appeal was imposed by Slicer J on 25 May 2018. I have had the advantage of reading, in draft form, the reasons of Brett J and Marshall AJ. I agree that the appeal should be allowed. My reasons coincide with the reasons given by Brett J. Subject to one matter, I respectfully agree with his Honour and with the orders he proposes. I wish to add some comments of my own about totality as it applies to re-sentencing the respondent.
Brett J, in his reasons, refers to the notion that the totality principle has "two limbs", and that the second limb enjoins a sentencing court to "ensure that an offender is not subjected to a crushing sentence not in keeping with his record and prospects". His Honour concluded that it was, in this case, the need to avoid an unduly crushing sentence which required adjustment to the aggregate sentence for totality. As was referred to in Hall v Tasmania [2015] TASCCA 6 and Director of Public Prosecutions v Bradford [2016] TASCCA 14, a "crushing sentence" was described by Nettle JA (as he then was) in R v Beck [2005] VSCA 11 at [22], as one in which "the total effective sentence is so long as to risk provoking within the applicant a feeling of helplessness and the destruction of any reasonable expectation of a useful life after release". In the same year his Honour, in a joint judgment with Chernov JA in R v Kerbatieh [2005] VSCA 194, 155 A Crim R 367, said at [125]:
"Views may differ as to whether any given sentence is crushing. The test most often applied is whether the sentence is of such a length that it would provoke a feeling of helplessness in the applicant when and if released or whether it connotes the destruction of any reasonable expectation of useful life after release. But length of sentence is not always determinative and there are cases in which the length of a sentence may almost certainly have those effects and yet still not be manifestly excessive. In the end, as so often has been observed, it is a matter of impression and there is little that may usefully be said about it."
For my part, the reason to adjust the sentence imposed on the respondent for totality arises primarily from proportionality; that is, to achieve an appropriate relativity between the totality of the criminality and the total effective aggregate sentence: Mill v The Queen (1988) 166 CLR 59 at 63. I agree with his Honour's assessment of the individual sentences appropriate for each count on the indictment. Some accumulation of sentences is necessary so as to ensure that criminality involved in each count, particularly the potential for harm to real children associated with each separate offence, is recognised and reflected in the aggregate sentence. Conversely, the respondent's offending involved criminality which was common across the counts as involving a course of similar conduct which justified some concurrency.
The foregoing comments reflect some difference in emphasis, but do not affect the result. The re-sentencing orders suggested by Brett J are entirely appropriate.
File No CCA 1588/2018
THE QUEEN v CHRISTOPHER KENNETH COOK
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
BRETT J
14 December 2018
I have had the benefit of reading the draft reasons of Marshall AJ for upholding the appeal. I gratefully adopt his Honour's summary of the procedural history, particulars of charges, and the sentence imposed by Slicer AJ. I agree that this appeal should be upheld and now record my reasons for that conclusion.
The notice of appeal asserted the following grounds:
"1The sentencing judge erred in his application of the totality principle.
2The sentencing judge erred in not imposing a sentence in respect of count 6 of the indictment.
3The sentencing judge erred in recording convictions in respect of the five counts on the schedule pursuant to section 16BA of the Crimes Act 1914 (Cth).
4The sentence imposed in respect of each of the Commonwealth charges was manifestly inadequate.
5The overall effective sentence and resulting term of imprisonment was manifestly inadequate."
Grounds 2 and 3 assert specific error. Ground 3 is conceded but is of technical importance only. Ground 2 is also conceded and is a substantive omission from the sentence. As Marshall AJ has noted, count 6 alleged a serious crime, constituted by separate criminal conduct to that relevant to the balance of the indictment. The sentencing judge was obliged to impose an appropriate sentence.
Ground 1 also purports to assert specific error. However, I regard grounds 1 and 4 as particulars of, and subsumed within, ground 5. The real question in this case is whether the total effective sentence imposed on the respondent was manifestly inadequate. Of course, the assessment of that question will depend upon the objective seriousness and the punishment appropriate for each individual offence (ground 4), as well as the proper application of the principle of totality (ground 1). It is also necessary to achieve an appropriate relationship between the sentences imposed on the individual counts by providing for appropriate accumulation and concurrence.
The nature and circumstances of the offences
Each of the Commonwealth offences related to the illegal use of a carriage service. The carriage services in question were those which provided communication by way of the internet. The majority of the offences involved the illegal use of the internet by the respondent to solicit or actually cause the transmission to himself of child pornography: Criminal Code (Cth), s 474.19(1). In one case (count 11), the material solicited was child abuse material: s 474.22(1)(a)(iv), and in another (count 6), the offence was constituted by using the internet to transmit indecent communications to a person whom he believed was under 16 years of age s 474.27A.
The offences were committed between July 2010 and June 2014, with the majority taking place in the second half of that period. During this period, the respondent was aged between 31 and 35 years. He was emotionally immature and socially isolated. As will be discussed in more detail later, the respondent committed the offences in question for the purpose of sexual gratification and personal connection, and as a substitute for the direct and personal romantic and sexual relationship which he craved but could not achieve. It was claimed on his behalf that he had no intention of causing harm or of having any physical contact with the children with whom he made contact.
The actual conduct relevant to each count can be summarised as follows:
Count 1 – soliciting child pornography material
In July 2010, the respondent engaged in online chat using an instant message service, with a person who claimed to be an 11-year-old female. The respondent used a profile name and purported to be a 20-year-old male. As with the majority of the offences to which the sentence relates, the respondent engaged in detailed and explicit descriptions of sexual conduct which he made clear he wanted to engage in with the person with whom he was corresponding, and requested sexually explicit information from her. The communication lasted 1 hour and 11 minutes. The respondent repeatedly asked for the person to send him photos of "her having sex". No images were sent to him.
Count 2 – causing child pornography to be transmitted to him
This offence was constituted by online chat via a messaging service with a person who purported to be a 16-year-old female. The communications occurred on an intermittent basis between October and December 2012, and then over a period of four days in December and January 2013. They again consisted of the respondent asking sexually explicit questions and requesting explicit sexual information from the person. This included the respondent asking about whether the person wanted to engage in anal and group sex. The respondent requested that the girl send pornographic images of herself. He was eventually sent two images of a female who was purported to be the correspondent, and two images of another young female who was claimed to be her cousin. All of the images are classified as child pornography material.
Count 3 - causing child pornography to be transmitted to him
This involved similar conduct to that described in count 2, which took place on one day in February 2013. The communication was with a person who purported to be a female aged between 10 and 12 years. In response to his request, the respondent received two images of a young, naked female in a sexual pose, and at a later time, a further six images of the same female. Each of the images constitutes child pornography material.
Count 4 - causing child pornography to be transmitted to him
This offence was constituted by online conversation by a messenger service, which took place between the respondent and a person who purported to be a 14-year-old female. The communications occurred between February and April 2013. They again included detailed description of sexual conduct which the respondent indicated he wanted to engage in with the child, including explicit descriptions of anal and group sex.
Count 5 – soliciting child pornography
This offence was committed via an online conversation that occurred on 23 February 2013 with a person who purported to be a young female. The person sent the respondent a non-pornographic image depicting a female aged between 13 and 16 years. The respondent encouraged the person to describe her sexual experiences.
Count 6 – transmitting indecent communications to a person under 16 years of age
This offence is a rolled-up charge consisting of several lengthy conversations which took place between 16 April 2013 and 11 August 2013 with a person who purported to be a 12-year-old female. The conversations involved detailed and explicit descriptions by the respondent of sexual acts, as well as numerous questions seeking sexually explicit responses from the child. In addition to the sexually explicit conversation, on two separate occasions, the respondent live-streamed images of himself engaged in masturbation.
Count 7 – soliciting child pornography
This offence occurred during the course of a number of text communications with a person who purported to be a 13-year-old female, which took place between May and August 2013. The respondent transmitted live webcam video of himself engaged in masturbation and repeatedly requested from the female, descriptions of sexual acts and naked photographs of herself. He also requested on a number of occasions that she perform sexual acts on live webcam, but these requests were unsuccessful.
Count 8 – causing child pornography to be transmitted to him
This crime was committed during the course of one conversation on 12 June 2013. Again the respondent engaged in explicit sexual conversation with a person who purported to be a female aged 13 to 15 years. At his encouragement, over the course of the conversation, the person transmitted seven images purporting to be of herself, showing a female child naked or topless and in sexually suggestive poses. These were classified within category 1 of the ANVIL scale. A further image within category 2 of the ANVIL scale – non-penetrative sexual activity between children or solo masturbation by a child, was also transmitted to the respondent.
Count 9 – soliciting child pornography
In a number of sexually explicit conversations in August 2013 with a person who purported to be a 13-year-old female, the respondent requested sexually explicit descriptions and pornographic images. As a result, he was sent some non-pornographic images of a female aged between 13 and 15 years.
Count 10 – causing child pornography to be transmitted to him
Count 11 – soliciting child abuse material
These offences were constituted by a number of lengthy online communications conducted in August 2013 with a person who purported to be a female aged between 10 and 12 years and a resident of Russia. As a result of sexually explicit conversations and requests, the respondent was sent pornographic images of a female of that age. Count 11 relates to a number of requests made by the respondent for photographs of activity described by the person, which related to her being raped by several men, and otherwise suffering severe physical and sexual abuse at their hands. The descriptions of this conduct are detailed and explicit. The respondent asks questions and otherwise encourages the person to provide further detail of the abuse.
Count 12 – causing child pornography to be transmitted to him
This offence was committed during the course of a single conversation on 12 April 2014. The respondent was sent a non-pornographic image by a female purporting to be between 8 and 12 years of age. As a result of his requests during the course of explicit conversations, he was sent further images of a pornographic nature showing a child. In one image, the child is penetrating herself with a large vibrator. Another depicts a naked adult male rubbing the child's vagina.
Count 13 – soliciting child pornography
This offence was committed during the course of two online conversations in June 2014. The conversations were with a person who purported to be a female between 15 and 16 years of age, living in the United Kingdom. During the course of sexually explicit conversations, the respondent requested the female to provide naked images of herself via webcam, but the attempts of both parties to connect by webcam were unsuccessful.
Count 14 – possession of child pornography contrary to the Criminal Code (Tas)
This charge relates to child exploitation material located by police on the respondent's computer. This material consisted of 389 images and 2 videos. The material has been classified in accordance with the ANVIL scale as follows:
Category 1 – 120 images and one video.
Category 2 – 12 images.
Category 3 – 14 images.
Category 4 – 7 images and one video.
Category 6 – 236 images.
Of those 391 files, 76 images were material that the respondent solicited and caused to be transmitted to himself during the course of the offending relevant to the balance of the indictment. The images were organised into subfolders, each named after the female with whom the respondent had corresponded. They were grouped under a main folder entitled "Random Chicks". Police classified those images according to the ANVIL scale as follows:
Category 1 – 55 images.
Category 2 – 10 images.
Category 3 – 8 images.
Category 4 – 3 images.
The organisation of the material received by the respondent during the course of his offending is consistent with admissions made by him to police during the course of two recorded interviews. He told police that he saved the material in this way so that he could refer back to it when chatting to the same person again. He admitted that he would also look at the material on other occasions.
Section 16BA of the Crimes Act 1914 (Cth)
Section 16BA of the Crimes Act 1914 (Cth) provides that the Court may take into account in sentencing for "a particular federal offence, other federal offences not included in the indictment". The process for doing so is prescribed by the section and requires the consent of the prosecutor and, in effect, the consent of the respondent. Before the Court can take into account the relevant offences, the respondent must admit his guilt in respect of them. He is not to be convicted of those offences (the basis of the complaint in ground 2), nor separately punished for them, but the Court, in sentencing for the offence for which sentence is being passed, will take into account the said matters "for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for a particular offence": see De Lorenzo v DPP (Cth) [2017] VSCA 270. The circumstances of that offending can result in a "significantly higher penalty in respect of the primary offence than that which would otherwise have been appropriate had the primary offence stood alone": Le v The Queen [2017] NSWCCA 26.
The respondent admitted guilt with respect to five offences, all of which were breaches of s 474.27A(1) of the Criminal Code (Cth), in particular that he used a carriage service to transmit indecent communications to a person he believed to be under 16 years of age. The sentencing judge was asked to take those offences into account when sentencing the respondent for the offence in count 11. The brief description of the conduct relevant to each offence is as follows:
· On 31 December 2012, the respondent conducted a live messenger conversation with a person he believed to be a 13-year-old female. The conversation contained graphic sexual context. For example, the respondent asked the female in lurid terms whether she had had oral and anal sexual intercourse.
· The second offence was committed on 2 April 2013. It related to a conversation by similar means with a named person whom the respondent believed to be a 14-year-old female. In the course of the conversation, the respondent described his penis and discussed with her, sexual acts that she claimed to have engaged in with boys of a similar age.
· This offence occurred during the course of a conversation by live messenger conducted on 18 August 2013 with a person whom the respondent believed to be a 16-year-old female. The conversation included graphic descriptions of sexual acts which the respondent said he wanted to perform with and upon the female, as well as repeated requests for her to send him naked photographs of herself.
· This offence occurred during the course of live internet chat on 3 September 2013. The conversation was with a person whom the respondent believed to be a 13-year-old female residing in Perth. In fact, this was a fictitious identity created by a police officer in Western Australia for the purpose of investigating conduct of this nature. A number of conversations took place between 3 September and 30 December 2013. Initially, the conversation did not involve explicit sexual content. However, in later conversations, the respondent requested that the female send him photographs of herself, discussed kissing her, and asked her if she had masturbated or had an orgasm.
· On 19 June 2014, the respondent engaged in a conversation via Skype with a person he believed to be a young female. A non-pornographic image of a female was sent to him showing a person aged between 12 and 15 years. The respondent made some suggestive sexual comments and sent the female a link to an adult pornographic website. In a conversation on 28 June 2014, the respondent sent a number of indecent communications which included that he looked at her images while masturbating and was thinking about engaging in sexual activity with her. He described the activity as "face fucking, anal rape, bondage and spanking".
The respondent
The respondent was born on 9 January 1979. He was 39 years of age at the time of sentencing, and between 31 and 35 years when he committed the relevant offences. He had no prior convictions whatsoever. He was apprehended by police after a search of his residence on 4 July 2014. He participated in two formal interviews, made full admissions and otherwise co-operated with the investigation. There was no suggestion that he has committed any further criminal offences, of a nature relevant to his offending or at all, since his apprehension.
According to the respondent's counsel, the respondent was diagnosed with Asperger's disorder as a child. He has experienced social isolation and difficulty with personal connection to others throughout his life. At the time of sentencing, he was in receipt of a disability support pension, having regard to the Asperger's disorder, and had previously experienced long periods of unemployment. He was living by himself and was socially isolated. In a report handed to the sentencing judge, a clinical psychologist who has been dealing with the respondent since his arrest, commented as follows:
"Mr Cook has a romantically and socially impoverished life. Despite wanting the same types of relationships as most others, he has limited means of achieving his goals. He is faced with repeated disappointments. He is challenged by trying to navigate adult romantic relationships and has few skills to present himself well as a potential partner."
These observations of the respondent's psychological and social condition informed the explanation for his offending behaviour. The psychologist opined that he used internet communication with females to overcome his inability to establish personal and, in particular, sexual relationships, directly. His counsel submitted that his primary motivation was simply to connect socially, that many of his social interactions were not of a sexual nature, but that "it occurred often that conversation would take a sexual turn, for want of a better word". It was also submitted that the respondent was "role playing" and for this reason purported to be younger than his actual age. It was submitted that he made no attempt to physically meet or engage with the person with whom he was corresponding, and had no intention of causing harm to anyone. It was submitted that he did not know that the persons with whom he was corresponding were in fact female children and in at least one case, counts 10 and 11 that concern the female in Russia, he did not believe what he was being told by her. On the other hand, it was conceded by his counsel that he had correctly admitted to police that he was sexually attracted to females under the age of 18 years.
It was submitted by his counsel to the sentencing judge, and recited in the psychologist's report, that the respondent was remorseful for his conduct, and in particular was disturbed "that harm could have been caused by his actions and he is regretful that any actions on his part could have caused people distress". It was submitted that the fact that he had not committed any further offences since his arrest, and his plea of guilty, could be accepted by the Court as evidence of true remorse.
Finally, it was suggested by the psychologist that the respondent's social and emotional immaturity would "make it difficult for him to navigate the social dynamic within the prison", and that he "would find life in prison more threatening and anxiety provoking than would be experienced by someone without these limitations".
The sentencing comments
The learned sentencing judge analysed in some detail the nature of the material found in the respondent's possession, which was the subject of count 14. He noted that "the greatest number of images were artificial constructs not involving abuse or exploitation of 'real children'." This is a reference to the fact that, apart from the material obtained by the respondent as a result of the commission of the balance of the criminal activity described in the indictment, the majority of the material found on the respondent's computer fell into Category 6 of the ANVIL scale "anime, cartoons, comics and drawings depicting children engaged in sexual poses or activities". His Honour concluded that "the Tasmanian legislation, in this case possession, does not extend to non-persons such as avatars or constructs". In relation to the Commonwealth legislation he considered that these ought be given "less weight than depictions of real children".
In relation to the Commonwealth offences, his Honour accepted that the respondent "showed no desire or expectation that the online connections would lead to actual contact". He accepted that the respondent had no desire to harm others, and that the main purpose of his actions "was the fear of rejection rather than the desire to harm". However, his Honour also observed that "the legislation is intended to protect the young and the vulnerable from harm and exploitation". He considered that a graduated response to "the tensions between human nature and weaknesses and collective attempts to curtail exploitation" was warranted.
Ultimately, his Honour concluded that "This case is one at the lower end of commensurate sentences." It would seem that his Honour was referring to the relative objective seriousness of the respondent's conduct, within the context of comparison with the circumstances in other cases nominated in his Honour's comments.
In determining sentence his Honour grouped together the crimes into the following categories:
· Counts 1, 5, 7, 9, 11 and 13, together with the five charges of communication with persons under the age of 16, under s 14BA into the category of the crimes of soliciting material. His Honour regarded these as "the most serious".
· Count 6 involving transmission directly to another.
· Counts 2, 3, 4, 8, 10 and 12 which comprise the transmission.
· Count 14, possession of child exploitation material which his Honour regarded as "mainly subsumed in the above".
His Honour then imposed sentences for each group (with the exception of count 6) as particularised in the table contained in the reasons of Marshall AJ. The total effective sentence, after taking into account the commencement date of each sentence, is 15 months' imprisonment, with release on a recognisance release order after serving 10 months. However, his Honour's sentencing comments suggest that he intended that the respondent would actually serve 13 months prior to release.
The objective seriousness of the respondent's criminal conduct
In Taylor v The Queen [2015] TASCCA 7, this Court considered an appeal from a sentence imposed in respect of child pornography offences which included two charges of using a carriage service to access child pornography, contrary to s 474.19(1) of the Criminal Code (Cth), and a further charge of possession of child exploitation material. Pearce J, with whom Blow CJ and Wood J agreed, collected principles relevant to sentencing for possession of child pornography and the dissemination/transmission of child pornography. His Honour referred in particular to the cases of DPP v Latham [2009] TASSC 101, 19 Tas R 281; Director of Public Prosecutions (Cth) v D'Alessandro [2010] VSCA 60, 26 VR 477 and Minehan v The Queen [2010] NSWCCA 140, 201 A Crim R 243. At [31] his Honour set out the list of considerations relevant to the objective seriousness of offences "involving the possession or dissemination/transmission of child pornography" taken from Minehan v The Queen:
"1Whether actual children were used in the creation of the material.
2The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed.
3The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material.
4The number of images or items of material - in a case of possession, the significance lying more in the number of different children depicted.
5In a case of possession, the offender's purpose, whether for his/her own use or for sale or dissemination. In this regard, care is needed to avoid any infringement of the principle in The Queen v De Simoni (1981) 147 CLR 383.
6In a case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted.
7Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination/transmission.
8The proximity of the offender's activities to those responsible for bringing the material into existence.
9The degree of planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating or transmitting the material.
10Whether the offender acted alone or in a collaborative network of like-minded persons.
11Any risk of the material being seen or acquired by vulnerable persons, particularly children.
12Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted.
13Any other matter in s 21A(2) or (3) Crimes (Sentencing Procedure) Act (for State offences) or s 16A Crimes Act 1914 (for Commonwealth offences) bearing upon the objective seriousness of the offence."
In this case, the serious aspect of the respondent's conduct was not related to the number of images or items of material, nor the nature and content of that material. This was not a case of a person who had solicited, transmitted or possessed significant quantities of material depicting conduct towards children of a high level of depravity and cruelty. In that respect, this case can be distinguished from other far more serious cases involving child pornography.
However, the serious aspect of the respondent's conduct in this case was his use of the internet to directly contact persons who purported to be real children for the purpose of soliciting those children to create and transmit to him pornographic images of themselves. The criminal use of the internet to target, manipulate and abuse vulnerable persons, including children, is the prime concern of the provisions of the Criminal Code (Cth) which include the sections breached by the respondent in this case. See Subdivisions D and F of Div 474. These provisions deal with a wide range of criminal purposes and activities which are effected through the use of carriage services such as the internet. The internet, in particular, poses unique risks and dangers. In relation to child pornography, the internet provides the capacity for the covert dissemination and transmission of large quantities of such material without any effective limitation imposed by national boundaries, customs services, or the need for physical transportation of the material. Such material can be transmitted immediately to an unlimited number of recipients and in a virtually unlimited quantity.
In this case, the concern arising from the use of the internet, against which the legislation was directed, was somewhat different. By use of the internet, the respondent was provided with the opportunity to easily and covertly make contact with a significant number of persons who purported to be, and potentially were, children. His primary purpose was to achieve sexual gratification by interaction and communication with the children, and, as part of achieving that purpose, he solicited and, in some cases obtained from them directly, child pornography material. The use of the internet for this purpose constituted serious criminal conduct. The internet provided the opportunity for insidious and secretive communication, and hence easy access by an adult male, intent on sexual gratification, to vulnerable children. The respondent's communications were intended to, and in some cases did result in persons purporting to be, and who potentially were children, producing and transmitting child pornography. The subject of the pornography, in respect of most if not all of the offences in question was the purported child herself. These aspects of the respondent's criminal use of the internet required strong denunciation and a clear emphasis on general deterrence.
On the appeal, the respondent's counsel submitted that, at least in respect of the soliciting and transmission offences, the respondent's culpability was not to be assessed on the basis that he either believed that he was, or was in fact, engaging with female children. Neither fact was an element of the relevant offences, and, accordingly, could not be taken to have been admitted by the plea of guilty. Counsel also argued that because a belief that the person with whom he was dealing was an element of other offences, for example s 474.27A(1), that the respondent could not be sentenced on the basis of those elements. As I understood this argument, it was based on the principle confirmed in R v Di Simoni (1980-1981) 147 CLR 383. It was asserted, in any event, that the respondent disputed these facts in mitigation, and the facts had not been proved by the prosecution beyond reasonable doubt.
There is no question that the respondent was not to be sentenced on the basis that any of the persons with whom he was corresponding in respect of any of the offences, including the indecent communication offences (s 427.27A), were actually children. This had not been asserted nor proved by the prosecution, nor was it a matter which had been admitted by the respondent. Further, the question of whether the respondent believed he was dealing with children, was not a matter which was positively asserted by the prosecution in the sentencing hearing. On the other hand, while defence counsel asserted to the sentencing judge the obvious proposition that the respondent could not know whether the person he was dealing with was, in fact, a female child as that person purported to be, it was not asserted that he had any positive belief to the contrary.
Accordingly, it is uncontroversial that the respondent's culpability was not to be assessed on the basis of, or aggravated by, the certainty that actual harm had been caused to real children. However, the absence of the positive existence of this fact does not, to any significant extent, mitigate the respondent's culpability, nor detract from the importance of denunciation and general deterrence in the sentencing process. As already discussed, the real concern with the respondent's conduct was his use of the internet over a significant period and on a repeated basis to make contact with persons who purported to be children, for the purposes relevant to each of the offences to which he pleaded guilty. It could not be established that the contact, at least that coming from the purported child, went beyond communication by text. While the respondent could therefore not possibly know with certainty that the person with whom he was communicating was the purported child, there was great potential for such contact to be with real children. The communication was clearly directed to children and there was, therefore, a significant and unacceptable risk that children would be harmed by the use of the internet in this way. See Adamson v The Queen [2015] VSCA 194. I agree with Marshall AJ that the protection of children is a primary sentencing consideration in respect of the crimes in this case.
With respect to the question of the respondent's belief, the evidence was overwhelming that the respondent had directed his offending at, and believed he was, communicating with real female children aged between 10 and 16 years. His prevalent requests for photographs, the nature of his correspondence, his admissions concerning his sexual interest in children under 18, and his attempts to engage some of the persons in face-to-face communication via webcam exclude any reasonable possibility that he thought he was engaging with anybody other than a female child. This fact was relevant to the respondent's personal culpability. Using the internet to directly target children for the purposes and in the manner relevant to these offences places this conduct into a very serious category. The respondent's protestations of a lack of intent to harm the children deserve little weight. The potential for harm was real and obvious, and any lack of positive intent can be better explained by a reckless indifference to harm, arising from the respondent's focus on his own desires and perceived needs.
The Court was not precluded by the principle in Di Simoni from taking into account, in respect of the soliciting and transmission offences, the fact that the respondent was indecently communicating with persons he believed to be children. Although Di Simoni was actually concerned with the issue of whether a circumstance of aggravation as defined under the Criminal Code (WA) could be taken into account for the purpose of sentencing if it had not been charged in the indictment, that case has since widely been taken as authority for the principle that such a limitation applies where the circumstance is one that forms an element of a different and uncharged crime, whether or not it is expressed as a circumstance of aggravation of the charged crime. However, the principle operates as a qualification of the general principle that, in sentencing, a judge should take into account "not only the conduct which actually constitutes the crime, but also such of the surrounding circumstances as are directly related to that crime and are properly to be regarded as circumstances of aggravation or circumstances of mitigation": R v Austin (1985) 121 LSJS 181. However, there are two matters which limit the application of the principle. Firstly, the principle only precludes consideration of circumstances which, had they been proved as an element of a separate crime, would have rendered the person being sentenced liable to greater punishment: R v Causby [1984] Tas R 54, per Cox J (as he then was). Secondly, the principle will not apply where the circumstances "form part of, or are directly related to one of the ingredients of the charge" for which the respondent is to be sentenced: Causby per Green CJ, cited with approval by Crawford J (as he then was) in Walsh v The Queen (1996) 6 Tas R 70 and approved and applied by the Court of Criminal Appeal in TGW v Tasmania [2017] TASCCA 10. In this case, each consideration is applicable and leads to the conclusion that the respondent's belief as to the age of the persons with whom he was corresponding is a relevant sentencing factor in respect of all offences.
In relation to the soliciting and transmission offences, the uncharged offence relied upon for the Di Simoni argument, is one contrary to s 427.27A. However, an offence under that provision carries a less severe maximum penalty (seven years' imprisonment) than the soliciting and transmission offences (15 years' imprisonment). The latter are, in fact, the more serious offences. Further, the respondent's use of the internet to engage in direct and indecent communication with persons he believed to be children was integral to the means by which those offences were committed. The said circumstances were "directly related" to essential elements of the charges under s 474.19, in particular, the means by which he solicited or caused the transmission to himself of child pornography. In my view, the sentencing court is not precluded from having regard to those circumstances when determining sentence for the s 474.19 offences.
Other factors which aggravate the respondent's culpability in this case include:
· The significant age disparity between the respondent and the children with whom he thought he was communicating.
· The repeated nature of the conduct. This includes the fact that a number of the offences were constituted by repeated communications over a significant period of time.
· The language used by the respondent in the course of the communications exhibited a significant level of depravity and was highly sexually explicit and graphic. This had the capacity to corrupt the children with whom he thought he was communicating, as well as setting the tone for the nature of the child pornography which the respondent hoped to solicit.
· It was inherent in the respondent's conduct that the children themselves would produce the child pornography.
· The respondent retained the material that was sent to him in an organised way. This enabled him to anticipate and facilitate continued offending in respect of each child in the future.
Of course, as has already been discussed, many of the factors which would usually aggravate offending of this nature were absent in this case. For example:
· The respondent's activities were not undertaken with a view to profit, nor was there any commercial element to each transaction.
· There is no suggestion that the respondent made or intended to make the material available to anyone else. He conducted these activities solely for his own sexual gratification.
· The material was limited in number and moderate in terms of its relative level of depravity.
· The respondent was not part of a group or network of likeminded persons seeking to target children.
Finally, other factors which were relevant to sentence, in the respondent's favour, included the respondent's lack of prior convictions, his early pleas of guilty and his co-operation with the investigation, the fact that he had not reoffended since his arrest, and the significant delay by the prosecution authorities in bringing the matter to a conclusion.
Totality and accumulation/concurrency
Ground 1 complains that the sentencing judge erred in his application of the totality principle. His Honour did not actually refer to the totality principle during the course of his comments. In any event, as already noted, whether or not the judge erred in the application of any relevant principle can only be effectively tested against consideration of the ground asserting manifest inadequacy.
There can be no doubt that the totality principle was applicable to the formulation of the sentences in this case. The respondent was being sentenced for a number of separate acts of criminality, each of which attracted a significant penalty and which were deserving of separate punishment. The need to ensure that an appropriate sentence is fixed for each offence before considering questions of totality and accumulation or concurrence was pointed out by the plurality in Pearce v The Queen (1998) 194 CLR 610. As I noted in Director of Public Prosecutions v WLNH [2017] TASCCA 15, the totality principle has two limbs. Firstly, the principle requires a court imposing sentences for multiple offences to have "a last look" at the aggregate sentence to ensure that it is proportionate to the overall criminality: see Mill v The Queen (1998) 166 CLR 59. Secondly, it enjoins a court "to ensure that an offender is not subjected to a crushing sentencing not in keeping with his record and prospects": see Postiglione v The Queen (1997) 189 CLR 295. Both limbs of the principle were engaged by the circumstances of this case.
The appellant also argues that the sentencing judge erred by not providing for an appropriate degree of accumulation between the various sentences. This argument is closely related to the question of totality, and can only be ultimately tested by assessing whether the overall effective sentence was within a reasonable exercise of sentencing discretion. It seems clear from the sentencing judge's comments that his Honour determined "to provide an effective sentence of 13 months' imprisonment overall", and then structured the sentences imposed to achieve this result. In Johnson v The Queen [2004] HCA 15, 205 ALR 346, the High Court endorsed the approach earlier expressed in Mill and Pearce (above) that the orthodox practice is to fix a sentence for each offence, and aggregate them in order to consider the question of totality. The principle of totality can then be reflected by determining questions of concurrency and accumulation. In respect of Commonwealth sentences, because s 19(3) of the Crimes Act requires the court to fix the commencement of each sentence by reference to a date, concurrency and accumulation is often achieved by fixing appropriate commencement dates for each sentence. The court in Johnson also confirmed that it is permissible to achieve a similar effect by simply lowering each sentence. However, it is unacceptable for a sentencing judge to simply determine an aggregate sentence and then apportion time to each individual act of criminality within that overall determination.
In this case, with the exception of the State possession charge, and counts 10 and 11, each crime consisted of a separate act of criminality, which involved different children. While a number of counts were committed at around the same time, the respondent's criminality involved repeated acts of this nature over a period of approximately four years. The seriousness of some counts was increased by their rolled-up nature, in that they involved a number of communications between the respondent and the purported child. In these circumstances, there was a need for "at least partial accumulation otherwise there is a risk that the total sentence will fail to reflect the total criminality of the offences" Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301 per Price J.
However, the second limb of the totality principle did require some adjustment of the aggregate sentence, after sentences had been calculated individually for each charge. The respondent's lack of prior convictions, and expressions of remorse, were factors to be taken into account, and particularly relevant to the question of the need to avoid an overly crushing sentence having regard to his "record and prospects". Further, the aspects of his character and personality which had contributed to his decision to commit these offences, were also relevant to the question of the impact upon him of a lengthy sentence.
In my view, when regard is had to the need to impose punishment proportionate to all of the criminality involved in this case, but also taking into account the principle of totality, the proper approach was the orthodox approach endorsed in Johnson, that is to assess the sentences for each offence individually, and then aggregate them in order to determine whether or not the overall sentence was consistent with the dual limbs of the principle of totality. It was then appropriate to determine appropriate concurrency and accumulation, in order to adjust the overall effective sentence having regard to those principles. In Tasmania at least, as I will discuss shortly, the result so achieved may then be expressed as a global sentence, individual sentences with varying commencement dates, or a combination thereof.
Manifest inadequacy
I am satisfied that the sentences imposed by the learned sentencing judge were manifestly inadequate, both individually and when regard is had to their overall effect. The sentences imposed were consistent with sentences imposed in cases where the criminality is confined to obtaining or possessing modest quantities of child pornography material, without any contact with the children concerned. The sentences did not reflect the serious criminality involved in the several acts of soliciting and obtaining the relevant material, as already discussed. Each Commonwealth offence carried a maximum penalty of 15 years' imprisonment. It was necessary to impose sentences which provided appropriate emphasis on the considerations of denunciation and general deterrence, and reflected the serious and separate criminality involved in each offence. The sentences imposed by the learned sentencing judge did not adequately achieve these requirements and were well below the ambit of an appropriate exercise of sentencing discretion. They reflect undefined error in the sentencing process. The appeal on that ground must succeed.
Re-sentencing
I agree with Marshall AJ that it is appropriate for this Court to re-sentence the respondent and that there is no reason why the Court should exercise its residual discretion to decline to interfere with the sentence imposed in this case.
In my view, the various offences of soliciting and transmitting child pornography would each have warranted an individual sentence of between one and two years' imprisonment, according to the circumstances of the offence in question. Count 6 is a serious example of its type. I would have imposed a sentence of two years' imprisonment for this crime.
Count 11, taken alone, is also a serious example of the crime in question. The sentencing judge adopted the approach that the verbal description of the abuse transmitted to the respondent "appeared to be 'fantasy constructs', rather than ones of actual events". I am not sure that this factual finding was justified, but, in any event, there was certainly potential for a real child to be affected by the respondent's conduct. Taken alone, the offence justified a sentence of two years' imprisonment. However, it was in relation to this charge that the Court was required to take into account the offences contained in the s 16BA schedule. This was also serious conduct which, although constituting offences under a different section, still contained the factors which give rise to the need for denunciation and general deterrence. Taking the schedule offences into account, I would have imposed a sentence of three years' imprisonment in respect of count 11. Given that counts 10 and 11 involved communications with the same purported child, and can be regarded as being parts of the same criminal transaction, it would be appropriate for these sentences to operate concurrently.
In relation to the State offence at count 14, I would agree with the sentencing judge that, taking into account the nature of the pornography, the offence was at the lower end of the range of seriousness. I would not interfere with the sentencing judge's assessment of four months' imprisonment.
Apart from counts 10 and 11, and count 14, there is no proper basis, apart from totality, for any of the sentences to operate concurrently. However, as already discussed, the second limb of the principle requires significant adjustment to the overall effective sentence, in order to avoid a sentence which will be unduly crushing. Taking into account the overall criminality involved in the respondent's conduct, and all other relevant sentencing factors, I am satisfied that an overall effective sentence of four years' imprisonment is appropriate.
The final question is the appropriate form of the order. Section 11 of the Sentencing Act 1997 is applicable having regard to s 68 of the Judiciary Act 1903 (Cth); Putland v The Queen [2004] HCA 8, 218 CLR 174. In the circumstances, the only sensible course in respect of the Commonwealth offences is to either impose a separate sentence for each offence, with appropriate commencement dates to allow for accumulation and concurrency, or to reflect the overall sentence in a global sentence for all of the offences. Given the number of offences and the very significant adjustment necessary to give effect to totality, I think that the latter is the preferable course.
Finally, it will be necessary to specify a non-parole period. Although a longer period could be justified by the serious and repeated nature of the offending, I think that a modest period is appropriate in order to reflect the delay and the plea of guilty. I would allow a non-parole period of two years.
I would therefore allow the appeal, quash the sentences and orders made by the learned sentencing judge and, in lieu thereof, make the following orders:
1The respondent is convicted of each of the crimes alleged in counts 1 to 14 of the indictment.
2In respect of counts 1 to 13, the respondent is sentenced to imprisonment for a term of four years, which will commence on 4 May 2018.
3In respect of that sentence, there is imposed a non-parole period of two years commencing on 4 May 2018.
4With respect to count 14, a sentence of four months' imprisonment is imposed, which will commence on 4 May 2018.
5The HP Pavilion laptop computer (exhibit 37491-697-3) and the Compac computer (exhibit 37491-696-4) be forfeited to the Commonwealth.
6The respondent's name shall be placed on the register in accordance with the Community Protection (Offender Reporting) Act 2005, and he is to comply with the reporting conditions as required by that Act for a period of five years after release.
File No CCA 1588/2018
THE QUEEN v CHRISTOPHER KENNETH COOK
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
MARSHALL AJ
14 December 2018
The Commonwealth Director of Public Prosecutions (the appellant) has appealed against the sentence imposed by Slicer AJ after the respondent's plea of guilty to 14 charges involving child pornography.
The appellant's written submissions helpfully set out a table referring to the charges/offences, the maximum penalties available, the sentences imposed, and the dates of commencement as follows:
| Charges | Offence | Maximum Penalty | Sentence | Commencement | ||||
| 1, 5, 7, 9, 13 11 | Solicit child pornography material using a carriage service: s 474.19(1) Criminal Code (Cth) Solicit child abuse material using a carriage service: s 474.22(1)(a)(iv) Criminal Code (Cth) | 15 years' imprisonment 15 years' imprisonment | 15 months' imprisonment | 4 May 2018 | ||||
| 2, 3, 4, 8, 10, 12 | Cause child pornography material to be transmitted to himself using a carriage service: s 474.19(1) Criminal Code (Cth) | 15 years' imprisonment | 3 months' imprisonment | 4 December 2018 | ||||
| 6 | Transmit indecent communications to a person under 16 years of age: s 474.27A(1) Criminal Code (Cth) | 7 years' imprisonment | No sentence imposed | |||||
| 14 | Possess child exploitation material: s 130C Criminal Code (Tas) | 21 years' imprisonment | 4 months' imprisonment | 4 May 2018 | ||||
| 16BA Notice | Transmit indecent communications to a person under 16 years of age: s 474.27A(1) Criminal Code (Cth) (5 charges) | 7 years' imprisonment | N/A | N/A | ||||
| Total Effective Sentence: State: Commonwealth: | 15 months' imprisonment[1] to be released after serving 10 months of the sentence of imprisonment (on 4 March 2019) upon entering into a recognisance pursuant to s 20(1)(b) Crimes Act 1914 (Cth) in the sum of $2000 to be of good behaviour for 2 years. 4 months' imprisonment | |||||||
| Community Protection (Offender Reporting) Act 2005 (Tas): Ordered to comply with the reporting obligations for 5 years after release. | ||||||||
[1] The total effective sentence, when calculated by reference to the formal orders of the Court, is 15 months' imprisonment with release after serving 10 months of the sentence. It is noted however that in the transcript of Sentence Proceedings on 25 May 2018 (AB page 50, pp 159-161) and the Comments on Passing Sentence (AB page 46), the sentencing judge appears to have intended that a term of 13 months' imprisonment be served prior to release.
The respondent was convicted of 13 charges under the Criminal Code (Cth), and one charge under s 130C of the Criminal Code (Tas). The total effective sentence imposed was 15 months' imprisonment, with release after 10 months upon entering into a recognizance in the sum of $2,000 to be of good behaviour for two years.
Grounds 1, 2 and 3 of the notice of appeal allege that the sentencing judge made three specific errors. In that regard the appellant relied on the well-known passage in House v The King (1936) 55 CLR 499 at 504-505, as follows:
"It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so."
Grounds 4 and 5 assert that the sentences imposed were unreasonable or plainly unjust. A Crown appeal against sentence will only succeed if it is shown that the sentences imposed fall clearly outside the sentencing range reasonably available to the sentencing judge: Hili v The Queen [2010] HCA 45, 242 CLR 520 at [59]-[62].
Ground 1
The appellant submits that the sentences imposed did not accurately reflect the gravity of the Commonwealth offending or result in a total effective sentence which accurately reflected the totality of the criminality involved in the totality of offences.
The appellant submits that the length of the terms of imprisonment which were fixed for the Commonwealth offences were manifestly inadequate given the nature of the offending, the sentencing principles to be applied, and the sentencing methodology adopted.
The sentencing judge imposed one penalty for each type or group of offences. The appellant contends that the ultimate sentence imposed for each group of offences covered many different and discrete instances of offending and involved several victims. By imposing a "group penalty" the sentences did not, the appellant says, reflect the objective seriousness of the overall Commonwealth offending.
The appellant contends that the sentence of 15 months' imprisonment imposed on counts 1, 5, 7, 9, 11 and 13, did not reflect the circumstances that the offending involved six separate instances of serious criminality with six individual victims and two distinct types of offending. The offending involved soliciting child abuse material and child pornography material.
The appellant submits that the three months' imprisonment imposed in respect of counts 2, 3, 4, 8, 10 and 12 did not reflect the seriousness of the offending. These charges involved instances where the respondent caused material to be transmitted to himself from six separate sources, and involved more than one episode of criminal conduct.
It is the appellant's submission that the sentencing judge should have imposed a sentence which included some accumulation between the Commonwealth sentences and the State sentence, to acknowledge that the two different forms of offences were directed at different vices.
The appellant says that the sentencing judge should have imposed separate sentences on each Commonwealth charge (13 in total), and then ordered an appropriate degree of accumulation between the Commonwealth sentences and the State sentence. It is submitted that this would reflect the different forms of criminality, instances of offending, and separate victims.
In my view there is merit in the submissions of the appellant. Apart from counts 10 and 11, each of the charges involved separate victims and instances of offending. Further, notwithstanding the overlap between the concept of possessing child pornography and soliciting and transmitting child pornography, they are separate charges and it is appropriate to impose some accumulation in respect of them. However it was open to the sentencing judge to group the offences as he did so long as the overall sentence reflected the gravity of the charges.
Ground 2
Count 6 involved a charge of transmitting indecent material to a recipient believed by the respondent to be under 16 years of age. In his sentencing remarks, the sentencing judge referred to count 6 as involving "transmission directly to another". The sentencing judge failed to impose any penalty on this charge. This charge was a serious one. It involved the respondent being in contact on multiple days over a period of nearly four months with a child whom he believed to be only 12 years of age. Plainly, the respondent should have had a sentence imposed in respect of count 6. Ground 2 was conceded by the respondent.
Ground 3
There were five counts included on a schedule filed for the purposes of s 16BA of the Crimes Act 1914 (Cth). These offences were offences which the respondent admitted. They were to be taken into account by the Court in passing sentence in respect of one of the 13 Commonwealth counts. They were not intended to be the subject of any conviction. However, the sentencing judge appears to have convicted the respondent of those charges when also convicting him on counts 1, 5,7, 9, 11 and 13. The order of imprisonment and release specifically refers to the respondent being "convicted of the following crimes not contained within the indictment" and went on to refer to s 16BA. It would have been preferable to have taken the s 16BA counts into account when sentencing for the similar offence of transmitting indecent material under count 6. Ground 3 was conceded by the respondent.
Grounds 4 and 5 (manifest inadequacy)
At par 12 of the appellant's written submissions, 25 separate factors are identified as being relevant to an appropriate sentence, which the appellant says should have been imposed by the sentencing judge. Those factors are:
"a)The respondent fell to be sentenced for 13 individual Commonwealth charges;
b)A further 5 charges of transmitting indecent communications to a child under 16 were admitted by the respondent and were to be taken into account in sentencing pursuant to section 16BA Crimes Act 1914 (Cth);
c)The charges involved 17 different recipients (five of whom were the subject of the s16BA schedule) who the respondent believed were female children aged between 10 and 16 years old;
d)The charges covered 4 distinct and discrete types of Commonwealth offending, namely soliciting child pornography material, soliciting child abuse material, causing child pornography material to be transmitted to himself and transmitting indecent communications to a child under 16;
e)There were 5 charges of soliciting child pornography material. The respondent solicited sexually explicit images from 5 separate children which included asking for photos of them having sexual intercourse, and if none were available, he asked for photos to be taken and sent to him. He also encouraged at least one recipient to engage in sexual acts for him on live webcam;
f)The respondent was persistent in his efforts to solicit child pornography material, making repeated requests for images to be sent to him, asking some children to obtain webcam to facilitate face to face or live communication with him, and even providing instructions to one recipient on how to transfer images to his computer;
g)Most of the respondent's interactions with victims were not isolated exchanges but occurred over periods of days or weeks;
h)When soliciting child pornography material the respondent also used sexually graphic and salacious language, and asked sexually explicit questions directed at eliciting sexualised responses from the child recipients. In asking victims to describe their sexual experiences, the respondent obtained child exploitation material in the form of both text and images;
i)The respondent also solicited child abuse material (count 11) on one occasion when he engaged in communications involving descriptions and discussions of rape, and sexual activity involving pain and humiliation;
j)The respondent was sentenced in relation to 6 counts of causing child pornography material to be transmitted to him. 76 images were identified as material the respondent caused to be transmitted to himself during the course of his offending These images had been saved by the respondent and were located under the name of each girl in a folder titled 'Random Chicks';
k)Whilst the majority of these images (55) were classified as level 1, not all of these images can be said to be innocuous and the 'moral depravity and wickedness of images classified as Level 1' seriously detracts from any submission that the gravity of offending is less serious because the vast majority of images are only level 1;
l)When material was received, the respondent made sexually explicit comments on some of the images;
m)The offending occurred over an almost 4 year period between 10 July 2010 and 4 July 2014;
n)The respondent admitted having a predilection for young girls, he was sexually aroused by 'cybersex', and he believed he was communicating with real children aged between 10 and 15 years;
o)The respondent pretended to be between 20 to 26 years during the offending;
p)Intermediate appellate authority throughout Australia makes it clear that an immediate term of imprisonment is ordinarily imposed for offending involving child pornography and on-line sexual exploitation of children;
q)The maximum penalties for the Commonwealth offences provide an unequivocal indication that they are viewed by Parliament as being very serious. All charges carried a maximum penalty of 15 years imprisonment, with the exception of charge 6 which carried a maximum penalty of 7 years;
r)In 2010 the maximum penalty for all Commonwealth charges (except charge 6) was increased from 10 to 15 years imprisonment. The changed legislative landscape represented by such penalty increases is of considerable importance in assessing the objective seriousness of the offending. The creation of new offences, such as those of transmitting indecent communications to a child in 2010, similarly reflect an assessment of the seriousness of the offences;
s)The respondent entered the website […] to seek out child users, and the images and responses he received from users were clearly of, and from, children;
t)It is presumed, even in the absence of victim impact statements, that child victims of cybersex offending suffer harm, which can include future harm and long term physical and psychological harm;
u)There was a significant age difference of around 20 years between the respondent and the child recipients (who were aged between 10 and 16 years old);
v)General deterrence is the primary sentencing consideration for offending involving child pornography and offending involving on-line child exploitation;
w)Where general deterrence takes precedence, personal factors such as prior good character and age carry less weight in sentencing;
x)Specific deterrence, punishment, denunciation and the need to protect children are also of great importance;
y)As noted above, the sentences imposed in respect of the Commonwealth charges were also manifestly inadequate because the sentencing judge imposed a global penalty in relation to each type or category of offence which did not reflect the fact that the category covered several different offences, victims and included some charges that were objectively more serious, being 'rolled up' charges involving numerous instances of offending." [Footnotes omitted.]
There is merit in each of the factors referred to in those submissions. Each of the counts contained extremely serious charges. The protection of children from activities engaged in by the respondent is the paramount consideration. In my view the respondent should have been sentenced in respect of each charge, and there should have been some degree of accumulation between the Commonwealth charges and the State charge. I accept the submission of the appellant that the sentencing judge must have permitted factors personal to the respondent to overwhelm the objective seriousness of the offending. I disagree with the observations of the primary judge that the respondent's offending was at the "lower end of offending". In my view the sentences imposed fell outside the sentencing range reasonably available to the sentencing judge.
Counsel for the respondent submitted that, apart from the charge under count 6 and the matters falling under the s 16BA notice, the respondent claimed he did not know he was dealing with children, and that he was involved in a fantasy role play. However, the respondent was encouraging the production of child pornography and there was a real risk that his behaviour would see him interacting with children. At the very least, there was considerable potential for a child to be interacting with the respondent. I reject the contention that all the respondent was trying to do was to engage in fantastical, bizarre narratives without regard to the age of those with whom he was engaging.
Counsel submitted on behalf of the respondent that there have been other cases where more images were produced and a higher classification of pornography was involved. Counsel submitted that the current offending was far from being the worst kind. It is possible to imagine more serious offending, but this does not mean that the sentences imposed were not manifestly inadequate. An effective period of 10 months' imprisonment for very serious offending involving offences against children is difficult to justify in all the circumstances.
Re-sentencing
The Court should accordingly re-sentence the respondent and not exercise its residual discretion to decline to interfere with the sentence of the sentencing judge.
Counsel did not refer the Court to any previous case which possessed the same characteristics as this matter. This is not surprising. Each case falls to be determined on its own facts. However, where the sentencing discretion can be seen to have miscarried as a result of an inadequate sentence, the appellate court must come to its own view as to the appropriate sentence to be imposed.
On the solicit child pornography charges (the subject of counts 1, 5, 7, 9 and 13), and on the solicit child abuse material charge (the subject of count 11), I would impose a penalty of three years' imprisonment with effect from 4 May 2018. On the transmit child pornography charges, I would impose a sentence of six months' imprisonment. On count 6, concerning the transmission of indecent communications to a child under 16 years, and the matters the subject of the s 16BA notice, I would impose a sentence of 12 months' imprisonment. Under the State charge of possessing child exploitation material, I would impose a sentence of four months' imprisonment. Applying the totality principle to the Commonwealth charges, I would impose a sentence of four years' imprisonment on those charges. In addition, I would impose an extra four months' imprisonment on the State charge. I would set a non-parole period of half the total sentence, being a non-parole period of 26 months, the minimum period which I consider the respondent should serve in custody.
The sentencing judge ordered that the respondent comply with reporting obligations for five years after release under the Community Protection (Offender Reporting) Act 2005. I would order that the respondent comply with those reporting obligations for the remainder of his life after release.
In arriving at the above sentence, I have taken into account the matters discussed by Bathurst CJ in R v Linardon [2014] NSWCCA 247 at [57] where his Honour referred to the judgment of R A Hulme J in Minehan v The Queen [2010] NSWCCA 140 at [94]. Although there is no evidence of the respondent using the material for other than his own purposes, actual children were used in the creation of the material. There were a considerable number of different children depicted, and the sexual act portrayed was demeaning to the children concerned.
11
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