R v Crivici
[2024] ACTSC 156
•21 May 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Crivici |
Citation: | [2024] ACTSC 156 |
Hearing Dates: | 17 April 2023, 25 August 2023, 12 September 2023, 6 May 2024 |
Decision Date: | 21 May 2024 |
Before: | Loukas-Karlsson J |
Decision: | See [221] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – possession of child exploitation material – using carriage service to possess child abuse material – using carriage service to transmit child abuse material – where offender assisted law enforcement authorities – where assistance rendered by the offender was both unusual and significant in its scope – combined discount of 40% imposed for guilty plea and assistance to law enforcement authorities – sentenced to term of imprisonment – ACT and Commonwealth term of imprisonment for possession to be served concurrently – limited partial concurrency between the two Commonwealth sentences – ACT sentence fully suspended upon entry to a good behaviour order –exceptional circumstances justified immediate and full suspension of the Commonwealth sentences on recognisance release order |
Legislation Cited: | Crimes Act 1900 (ACT) ss 65(1), 211(2)(e) Crimes Act 1900 (NSW) s 91H(2) Crimes Act 1914 (Cth) ss 16A(1), 16A(2), 16A(2)(f)(i), 16A(2)(f)(ii), 16A(2)(g)(iii), 16A(2)(h), 16A(2AAA), 16BA, 17A(1), 19(3), 19(5), 19(6), 19(7), 19AJ, 20(1)(b), 20(1)(b)(ii), 20(1B), 20AB, 23ZD Crimes Act 1958 (Vic) s 70(1) Criminal Code Act 1995 (Cth) ss 474.19(1)(a)(i), 474.19(1)(a)(iii), 474.22(1), 474.22A(1) Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 12, 33, 33(1)(j), 33(1)(w), 35, 36, 37, 78(6) |
Cases Cited: | Allison (a pseudonym) v The Queen [2021] VSCA 308 Boulton v The Queen [2014] VSCA 342, 46 VR 308 Brierley v The Queen [2022] NSWCCA 26 Bugmy v The Queen (1990) 169 CLR 525 Burton v The Queen [2020] NSWCCA 127 Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 4 CMB v Attorney-General (NSW) [2015] HCA 9; 256 CLR 346 Deakin v The Queen (1984) 58 ALJR 367 DPP v Manns (No 2) [2023] ACTSC 405 DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 DPP (Cth) v Garside [2016] VSCA 74, 50 VR 800 DPP (Cth) v Thomas; DPP (Cth) v Wu [2016] VSCA 237; 53 VR 546 DPP (Cth) v Zarb [2014] VSCA 347; 46 VR 832 DPP (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 Edwin v The Queen [2014] ACTCA 47 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Henderson v The King [2024] ACTCA 3 Hili v the Queen [2010] HCA 45; 242 CLR 520 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Huang aka Liu v The Queen [2018] NSWCCA 70; 332 FLR 158 Johnson v The Queen [2004] HCA 15; 78 ALJR 616 Kentwell v The Queen [2014] HCA 37; 257 CLR 601 Lowe v The Queen (1984) 154 CLR 606 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mertell v The King [2022] ACTCA 69 Mill v The Queen (1988) 166 CLR 59 Minehan v The Queen [2010] NSWCCA 140; 201 A Crim R 243 Morrison v Maher [2021] ACTSC 312 Morrison v Maher (No 2) [2022] ACTSC 63 Mouscas v The Queen [2008] NSWCCA 181 O’Brien v The Queen [2015] ACTCA 47, 19 ACTLR 244 Pearce v The Queen [1998] HCA 57; 194 CLR 610 Peters v The Queen [2018] NSWCCA 126 Petterson v The Queen [2013] NSWCCA 133 Phillips v The Queen [2012] VSCA 140; 37 VR 594 Postiglione v The Queen (1997) 189 CLR 295 Power v The Queen (1974) 131 CLR 623 R v Appleby [2021] ACTSC 55 R v De Leeuw [2015] NSWCCA 183 R v De Simoni (1981) 147 CLR 383 R v Dean [2023] ACTSC 98 R v Dunnicliff [2023] ACTSC 350 R v Edwards [2019] QCA 15 R v Ellis (1986) 6 NSWLR 603 R v Engert (1995) 84 A Crim R 67 R v Harrington [2016] ACTCA 10; 11 ACTLR 215 R v Henderson [2023] ACTSC 110 R v Hutchinson [2018] NSWCCA 152 R v Middleton [2023] ACTSC 50 R v Olbrich [1999] HCA 54; 199 CLR 270 R v Pham [2015] HCA 39; 256 CLR 550 R v Poynder [2007] NSWCCA 157; 171 A Crim R 544 R v Richard [2011] NSWSC 866 R v Tootell; ex parte Attorney-General (Qld) [2012] QCA 273 R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 R v Verdins [2007] VSCA 102; 16 VR 269 R v XX [2009] NSWCCA 115; 195 A Crim R 38 R v Yardley [2021] ACTSC 2 Thompson v The Queen [2018] ACTCA 2 Urlich v The Queen [2019] ACTCA 30, 14 ACTLR 267 Xiao v The Queen [2018] NSWCCA 4, 96 NSWLR 1 Zdravkovic v Queen [2016] ACTCA 53; 19 ACTLR 223 |
Parties: | The King ( Crown) C Crivici ( Offender) |
Representation: | Counsel L Hannigan ( Crown) J Sabharwal ( Offender) |
| Solicitors Commonwealth Director of Public Prosecutions Fraser Criminal Law ( Offender) | |
File Number: | SCC 300 of 2022 |
LOUKAS-KARLSSON J:
Introduction and Procedural History
1․On 7 November 2022, Chelsea Amalia Crivici (the offender) entered pleas of guilty to the following offences:
(a)Count 1 (CC2022/3169): An offence of possessing child exploitation material contrary to s 65(1) of the Crimes Act 1900 (ACT) (Crimes Act). The maximum penalty for this offence is 7 years’ imprisonment.
(b)Count 2 (CC2022/3170): An offence of using a carriage service to possess child abuse material, contrary to s 474.22A(1) of the Criminal Code Act 1995 (Cth) (Commonwealth Criminal Code). The maximum penalty for this offence is 15 years’ imprisonment.
(c)Count 3 (CC2022/5824): An offence of using a carriage service to transmit child abuse material, contrary to s 474.22(1) of the Commonwealth Criminal Code. The maximum penalty for this offence is 15 years’ imprisonment.
2․I note at the outset that this was a case where the offender was of assistance to law enforcement authorities. Specifically, in April 2022, the offender called police to inform them of the existence of this material in her possession and that of the co-offender. This is a significant matter in relation to the sentencing of this offender.
3․This matter has a rather long procedural history that should be set out. The matter was listed for sentence on 17 April 2023, at which time the offender gave sworn evidence. At the 17 April 2023 hearing, I made an order for the preparation of a Pre-Sentence Report (PSR) and Intensive Correction Order Assessment Report (ICOAR).
4․The matter was adjourned to 27 July 2023 to allow for the completion of the preparation of the PSR and ICOAR. The PSR dated 6 June 2023 (June 2023 PSR) detailed difficulties contacting the offender for the purposes of arranging a full interview for the report.
5․The matter returned before me on 25 August 2023, this time with a full combined PSR and ICOAR prepared dated 16 August 2023 (August 2023 report). The matter was adjourned on this date to allow counsel for the offender to make appropriate enquires in relation to fulltime residential drug and alcohol rehabilitation for the offender. This is consistent with the recommendations of the PSR, and I considered it important for the community that the offender actually receives the help she needs. In this hearing, I also made orders pursuant to s 23ZD of the Crimes Act 1914 (Cth) (Commonwealth Crimes Act) for the offender to forfeit a hard drive and a nano sim card to the Commonwealth by consent.
6․The matter was next heard on 12 September 2023. On this date, I was informed that the offender had attended an initial interview with Canberra Recovery Services on 7 September 2023, and was due for an assessment on 21 September 2023 to determine her placement at Canberra Recovery Services (CRS). At the hearing, the prosecution also requested an adjournment until after the offender’s co-offender (Mr Peter Henderson) appeal on 7 November 2023.
7․It is at this stage convenient to note that the co-offender pleaded guilty to the following offences on 25 May 2022 (R v Henderson [2023] ACTSC 110 (Henderson)):
(a)using a carriage service to transmit child abuse material, contrary to s 474.22(1) of the Commonwealth Criminal Code; and
(b)using a carriage service to possess child abuse material, contrary to s 474.22A(1) of the Commonwealth Criminal Code.
8․Norrish AJ sentenced the co-offender to the following terms of imprisonment (Henderson at [119](1)-(2)):
(a)1 year and 10 months for the possession offence, commencing on 9 November 2023 and expiring on 9 September 2024; and
(b)11 months for the transmission offence, commencing on 9 May 2023 and expiring on 8 April 2024.
9․The co-offender’s appeal was heard on 7 November 2023, and was allowed on 12 February 2024. The Court of Appeal (Loukas-Karlsson, Baker and McWilliam JJ) upheld the co-offender’s head sentence of 2 years and 4 months imprisonment, but reduced the time the co-offender had to serve prior to being released on recognisance to 9 months’ and 14 days: Henderson v The King [2024] ACTCA 3 at [4] (Henderson CA)
10․I will have more to say about the co-offender later in these reasons when I discuss parity at [167]-[174].
11․Returning to this matter, the matter was adjourned to the Registrar’s List, with a further listing before me set on the directions hearing of 15 February 2024 on 6 May 2024. On 27 March 2024, my chambers received an email from the parties essentially inquiring if I am inclined to order an updated ICOAR for the offender. I considered an updated ICOAR to be appropriate and made an in-chambers order to that effect on the day.
12․On 23 April 2024, my chambers contacted the parties to request an update on the offender’s rehabilitation ahead of the 6 May 2024 sentencing hearing. On the same day, the offender’s instructing solicitor replied confirming the following:
(a)the offender has been referred to a rehabilitation facility outside of Canberra by the CRS. The offender apparently commenced a program with the Health Retreat in Queensland on 18 October 2023.
(b)the instructing solicitor was informed that the program would run until 12 December 2023 by the director of the Health Retreat, but the offender then further instructed her solicitor that the program ran longer than this.
(c)the offender is to attend Corrections on 29 April 2024 and Corrections is to attend the offender at an address in Canberra with the view of further updating the PSR and assess her suitability for an ICOAR.
13․As to the second point, the instructing solicitor also flagged that the director of the Health Retreat will provide an updated letter to the court. In the 6 May 2024 hearing, counsel for the offender indicated that they are still waiting for the report from the Health Retreat despite multiple attempts to contact them. Regrettably, as of the date of sentence this report was not available.
14․On 3 May 2024, my chambers received an updated ICOAR for the offender (May 2024 ICOAR). I will have more to say on its content later in these remarks, but it is sufficient to say at this stage that the May 2024 ICOAR assessed the offender as unsuitable for an Intensive Correction Order (ICO).
15․The final sentence hearing was on 6 May 2024 where the parties concluded submissions.
Agreed Facts
16․The agreed facts are set out in the Agreed Statement of Facts, which forms part of the Prosecution Tender Bundle. The agreed facts may be summarised as follows.
17․In around 2020, the offender met the co-offender on a dating application. On 7 October 2021, the offender and co-offender began engaging in communication via WhatsApp, an encrypted messaging service. The communication continued until March 2022. During this time, the co-offender sent the offender 68 files of child abuse material via WhatsApp.
18․Between 7 October 2021 and 31 October 2021, the offender also transmitted 11 files of child abuse material, as well as text-based child abuse material, to the co-offender via WhatsApp. This is conduct related to Count 3 (CC2022/5824). The child abuse materials consisted of 10 category 1 and 1 category 2 materials as classified in accordance with the Australian Child Abuse Categorisation Schema (ACACS). The text-based child abuse material discussed rape of children, including a discussion about the offender and the co-offender having a child for the purposes of sexual activity,
19․As full context, Category 1 and 2 child abuse materials is defined under the ACACS as follows:
(a)Category 1, real child pre-pubescent perceived to be under 13 years of age: Media depicting a real pre-pubescent child/very first signs of puberty and the child is involved in a sex act, witnessing a sex act or the material is focused/concentrated on the anal or genital region of the child.
(b)Category 2, other illegal content, child under 18 years of age: Other child abuse material that is illegal within Australia but does not fit Category 1. This may include images of children which are likely to cause offence to a reasonable adult where a child is subjected to sadism, torture, bestiality or humiliation. Images may depict a child as the person conducting the activity or observing other persons. This includes animated, text of children and photoshopped media.
20․Excerpts of a communication over October 2021 between the offender and co-offender were provided in the Agreed Statement of Facts and meet the definition of child abuse material. The exchange featured sharing of child abuse materials, as well as “sexting” that involved child sexual abuse and bestiality.
21․On 1 April 2022, the offender called police to report that she had child abuse material in her possession. At this date, the offender possessed 68 files of child abuse material on a mobile phone as well as 2,178 files on an external hard drive. This is the conduct related to Counts 1 and 2 (CC2022/3169 and CC2022/3170). The offender informed police that the co-offender had sent her the child abuse material located on her mobile phone via WhatsApp and had given her the external hard drive containing child abuse material.
22․An initial review of the offender’s mobile phone identified a number of Category 1 files of child abuse material. As a result, police arrested and cautioned the offender.
23․The offender also participated in a record of interview on 1 April 2022, during which she made the following statements:
(a)“I called police because I had been very uncomfortable for a really long time, and then I finally had sex with him a couple of days ago and he said he wanted to get me pregnant so he could fuck it”. It is unclear what “it” is referring to here, but contextually it presumably meant the offender and co-offender’s baby];
(b)“[The co-offender]’s name is Pete”;
(c)“We matched on Tinder about two years ago and have been messaging on WhatsApp for about six months”;
(d)“[the co-offender] gave me a hard drive containing child abuse material”;
(e)“We were sexting and he told me his fantasy was for me to have a baby so he can have sex with them”;
(f)“I’m not saying I didn’t fakingly go along with it in certain scenarios but I always thought it was theoretical”;
(g)“That changed when he said it in person recently”;
(h)“At first he would send me things on WhatsApp and I would ignore them, but there were definitely times that I sent stuff back – I was just really lonely”;
(i)“The stuff he sent me automatically saved to the image gallery on my mobile phone”;
(j)“The only material I sent to him would have been stuff he sent to me that I sent back”;
(k)“I understand I committed an offence by sending that material and receiving and keeping it”; and
(l)“I kept the hard drive that he gave me as evidence but I never accessed it myself”.
24․When police attended the offender’s residence, the offender identified a mobile phone and an external hard drive in her possession as containing child abuse material. The offender provided the devices and associated passwords upon request.
25․Police subsequently forensically examined the external hard drive obtained from the offender’s residence. Through this, the Police identified 2,146 files of child abuse material on the hard drive, comprising:
(a)296 Category 1 videos;
(b)1,677 Category 1 images;
(c)8 Category 2 videos; and
(d)98 Category 2 images.
26․The agreed facts provided descriptions of a sample of the material located across the devices. The child abuse materials included highly depraved material depicting the penetrative rape and torture of very young children. The agreed facts noted that a review of the materials showed that the child victims depicted were largely between 1 and 10 years of age. Over 1,000 individual child victims were depicted.
27․The police also forensically examined the mobile phone obtained at the offender’s residence, which identified 68 files of Category 1 child abuse material on this device.
Victim Impact Statement
28․As might be expected due to the nature of the offending, no Victim Impact Statement was before the Court. However, it is clear and well-established on the authorities that these offences are not victimless crimes: see R v De Leeuw [2015] NSWCCA 183 at [72] (De Leeuw). As the Agreed Statement of Facts noted, the material subject to the offending depicted over 1,000 individual child victims.
Issues at the hearing
29․Both parties correctly agreed that the threshold of imprisonment has been crossed in this case. The main issue is how that sentence of imprisonment should be served.
30․At the May 2024 hearing, both parties agreed that there are three possible sentencing outcomes for the offender on the specific facts of this case:
(a)a sentence served by way of an ICO;
(b)a fully-suspended sentence of imprisonment; and
(c)a partially-suspended sentence of imprisonment.
31․In written submissions, counsel for the prosecution properly submitted that the term of imprisonment need not be served by way of full-time custody on the facts of this case.
32․Counsel for the prosecution also underlined that the prosecution was not putting forward a submission that the offender needs to serve a minimum period in custody, in the sense of a partially suspended sentence.
33․Counsel for the offender at the May 2024 hearing submitted that the offender should be dealt with by way of a fully-suspended sentence of imprisonment. Counsel noted that this is appropriate as the offender had previously worked at the Alexander Maconochie Centre (AMC) as a nurse and emphasised the discount the offender is entitled to for assistance to law enforcement authorities as well and her previously expressed willingness to give evidence against the co-offender.
34․Aside from the submissions of the parties, I also have the benefit of sworn evidence by the offender given at the 17 April 2023 hearing. In the same hearing, I also briefly reviewed a “sample” booklet of the materials prepared by the police informant which the prosecution submitted is relevant for a proper assessment of the objective seriousness of the offences. It is appalling to have to look on this material. Nevertheless, the court was required to in this case: see R v Hutchinson [2018] NSWCCA 152 at [47]-[50] (R A Hulme J, Meagher JA and Button J agreeing).
Objective seriousness
35․It must be stated at the outset that references to low, mid-range and high-range are unlikely to be helpful in this jurisdiction. As has previously been expressed “it is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of that case”: R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [24]. I accept the features identified by the prosecution as set out below. The prosecution’s submissions were consistent with the evidence before me.
36․Relevantly, it is well-established that the matters outlined by Hulme J in Minehan v The Queen [2010] NSWCCA 140; 201 A Crim R 243 at [94] (Minehan) may be relevant to an assessment of the objective seriousness of offences involving the possession or transmission of child pornography / child abuse (Cth) / child exploitation (ACT) material. These considerations include:
(a)Whether actual children were used in the creation of the material;
(b)The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed;
(c)The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material;
(d)The number of images or items of material – in a case of possession, the significance lying more in the number of different children depicted;
(e)In a case of possession, the offender’s purpose, whether for her own use or for sale or dissemination. In this regard, care is also needed to avoid any infringement of the principle in R v De Simoni (1981) 147 CLR 383;
(f)In a case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted;
(g)Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination/transmission;
(h)The proximity of the offender’s activities to those responsible for bringing the material into existence;
(i)The degree of planning, organisation, sophistication and/or deception employed by the offender in acquiring, storing, disseminating or transmitting the material;
(j)The age of any person with whom the offender was in communication in connection with the acquisition or dissemination of the material relative to the age of the offender;
(k)Whether the offender acted alone or in collaboration with like-minded persons;
(l)Any risk of the material being seen or acquired by vulnerable persons, particularly children;
(m)Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted; and
(n)Any other matter concerning sentencing in a state or territory (s 33 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) - in the offender’s case) or s 16A of the Commonwealth Crimes Act bearing upon the objective seriousness of the offence.
37․Before outlining the prosecution’s submissions, I note that counsel for the offender did not make submissions contrary to the prosecution’s submissions on objective seriousness.
Count 1
38․In relation to Count 1, the prosecution submitted that the offending is in “mid-to high” range of seriousness when it comes to the offending of this kind. The prosecution submitted that the vast majority of material in relation to this charge (1,677 files out of 2,146) depicted real, pre-pubescent children. The prosecution further submitted:
(a)There are over 1,000 real child victims depicted across the material, aged mostly between 1 and 10 years of age;
(b)The gravity of the sexual activity portrayed is at the upper end and includes sexual penetration of children as young as three years; and
(c)In addition to the gravity of the sexual activity depicted, there are abhorrent depictions of cruelty and torture of very young children.
39․The prosecution noted that while there is no evidence that the offender produced or paid for the material, this should be seen not so much a mitigating feature as absence of an aggravating feature.
40․I note the following explanation from the offender at the 17 April 2023 hearing as to why she “hung on” to the child abuse material for what she says about five months or so:
I didn't really know - I didn't really know what to do because - like, I knew that it was horrific but then I couldn’t just - like, I have a history of making the wrong choices and I just didn't want to ruin someone's life before I really had no - like, had wrapped my head around it and then after I did that, like, it just kind of kept going around and I couldn’t.
41․The offender also gave the following answers on cross-examination on why she continued engaging with the co-offender even as she conceded that having such materials was “disgusting”:
PROSECUTOR: And yet you continued after that point. After first realising what it was, you continued to engage with him and to send that material back to him?
OFFENDER: I - once I knew that he wasn't doing it, I really struggled mentally to make a choice about, you know, ruining his life and whether that was my job or my responsibility to do, and he was my friend and, you know, as - it was a small part of what was talked about. Like, me and him would - like, we never talked about it in person. So it was just easy to kind of try to forget about it because I couldn’t decide and I just thought that I would screw it up no matter what. But it's a big decision to make. I know it seems simple but it's someone's life.
42․In the hearing of 25 August 2023, counsel for the prosecution clarified that I am to consider the issue of objective seriousness on the basis that the offender was in possession of the child abuse material in the hard drive on a single date (as per the charge) not for five months as the offender said in her evidence. In other words, the seriousness is to be assessed on the basis that the offender only had the hard drive for one day in the five-month period: see also Brierley v The Queen [2022] NSWCCA 26 at [18]-[20] (Harrison J).
43․It important to note that, as discussed above at [23], the offender stated in her record of interview that the co-offender had provided her with the hard drive which she had retained as “evidence”, and that she had never accessed the material. The onus is on the offender to establish, on the balance of probabilities, any matters of mitigation: R v Olbrich [1999] HCA 54; 199 CLR 270 (Olbrich). The prosecution’s submission was that the offender’s assertion was not established on the balance of probabilities.
44․Further, the offender gave evidence that she consulted two friends on what to do with the materials. The offender said that one friend gave advice to delete the material, and the other to go to the police. The offender gave evidence that she informed the police of the names of these two friends during her record of interview.
45․Having reviewed all the evidence, including the evidence and cross-examination of the offender, I am satisfied on the balance of probabilities in relation to offender’s assertion in the record of interview that she did not access the hard drive. In any event, it is something of a moot point in circumstances where the prosecution charge is confined to one day in relation to this count.
Count 2
46․As for Count 2, the prosecution submitted that the offending is at low to mid-range of seriousness. With reference to the factors identified in Minehan, the prosecution noted:
(a)The material is all Category 1, which means all of the files depict real pre-pubescent children; and
(b)The offender came into possession of these materials because she expressed interest and enthusiasm in them to the co-offender and “encouraged him throughout their conversation”. In other words, the prosecution submitted that that the offender was not a passive recipient of the materials.
47․The prosecution accepted the offender statement in her record of interview that the photos were all saved automatically to her camera roll from WhatsApp may be true, as this is a common default setting in WhatsApp. Nonetheless, the prosecution submitted the automatic saving should not be considered a feature in mitigation. The prosecution noted that if the transfer to the camera roll was not desired, it would be expected the offender would delete them.
Count 3
48․The prosecution submitted in written submissions that Count 3 is also in “low to mid” range of objective seriousness having regard to the “relatively low” number of images and that they were only transmitted to one other person. The prosecution also noted the following features of the offending:
(a)Count 3 represents a course of conduct over three weeks, which the prosecution submits was not spontaneous and therefore with a greater seriousness than a charge involving only one isolated episode of criminal conduct: see R v Richard [2011] NSWSC 866 at [65](f) (Garling J); De Leeuw.
(b)Of the material transmitted, 10 of the files were Category 1 (depicting real pubescent children), and 1 file was Category 2.
(c)As the prosecution correctly submitted, the text-based material which the offender transmitted to the co-offender is graphic and highly depraved.
49․The prosecution properly accepted that text-based child abuse material, as a category, may be considered less serious than image-based child abuse material primarily because no real children were harmed in its making. Nevertheless, the Queensland Court of Appeal case of R v Edwards [2019] QCA 15 is relevant. The Court rejected a submission that text-based and cartoon child abuse material in relation to fictional children were harmless or victimless. The Court noted the following at [61] (Morrison JA, Philippides JA and Boddice J):
The capacity of child exploitation material, even that which does not depict real children, to affect the community goes beyond the tendency to normalise exploitive sexual activity involving children or even to stimulate potential participants in it. In my view, it serves to fuel the demand for such material, whether or not it involves real children.
50․The prosecution also referred to the case of Burton v The Queen [2020] NSWCCA 127 (Burton). While it is correct the NSW Court of Criminal Appeal did not find that the sentencing judge erred in assessing the objective seriousness of an offending that involved entirely text-based child abuse material, the sentencing judge’s apparent finding was that the offending was mid-range in terms of seriousness as opposed to a “high level or seriousness”: at [17], [37] (Harrison J, Hoeben CJ at CL and Walton J agreeing).
51․The offender was cross-examined at the 17 April 2023 hearing on where the offender had obtained the materials she was sending to the co-offender. While the offender gave evidence that she could not remember the exact provenance of the materials, she was adamant that she did not look for materials herself and that they came from “something [the co-offender] gave [her]”. I accept this evidence from the offender.
52․As stated at the outset of this assessment of objective seriousness, I broadly accept the prosecution submissions. The submissions are consistent with the evidence. I further note that counsel for the offender did not cavil with any of the prosecution’s submissions on objective seriousness. There was no forensic dispute.
Subjective circumstances
53․In evidence are the June 2023 PSR, the August 2023 report, and the May 2024 ICOAR, which include the following in relation to the offender’s subjective circumstances. It is also relevant to refer to the offender’s sworn and credible evidence on 17 April 2023 where relevant. I note that as of the date of sentence the offender is 29 years old.
Prior Contact with Corrections
54․As noted in the August 2023 report, the offender first became known to Corrective Services on 17 November 2022 when a PSR was ordered for these offences. The August 2023 report noted that the offender initially failed to engage with the Service. During the preparation of the August 2023 report, the offender attended a further interview during which she was forthcoming with information and presented as forward motivated regarding sentencing.
55․The author of the May 2024 ICOAR noted that it is to the offender’s credit that she presented as forward motivated and that her attitude towards case management was positive. The author noted that the offender was insightful regarding her risk factors and elaborated on supports she felt she could benefit from in the community.
56․The May 2024 ICOAR noted that the offender failed to attend a number of appointments. During the May 2024 ICO assessment process, Corrective Services attempted to contact the offender on various dates via telephone and email.
57․When prompted about her absence during the preparation of the previous PSRs, the August 2023 report noted that the offender acknowledged that her mental health and lack of accommodation had impacted her ability to engage with the Service.
The Offender’s Family / Marital Status
58․The offender reported being raised in Canberra as one of three children to her parent’s union. [Redacted].
59․The offender reported that the longest relationship in her life was approximately seven years in duration [redacted].
60․Further to this information, the offender reported in the May 2024 ICOAR that she had entered a new relationship and was recently engaged. The offender advised that her partner was known to this Service and is currently subject to bail conditions. The conditions include that he must be in either the offender’s or another person’s company when leaving his residence. The offender described this relationship in positive terms, advising they had attended a residential rehabilitation facility together between October 2023 and January 2024.
61․The offender advised in the May 2024 ICOAR that her partner was currently abstinent from illicit substances and described him as a positive support for her in the community. The offender’s partner verified this information, and counsel for the offender also noted the offender’s desire to cohabit with her partner. This appears to be a positive development.
62․[Redacted].
63․[Redacted].
64․[Redacted].
65․[Redacted].
66․[Redacted].
Homelessness
67․In the June 2023 report, an episode was recorded where the offender reported in an interview with Corrective Services on 11 May 2023 that she had no fixed address. In the August 2023 report, the offender also reported having no fixed address. Earlier, the offender also gave evidence to this effect in the 17 April 2023 hearing. The offender advised that she had been couch surfing since the commission of the current offences, occasionally staying with friends.
68․Due to her lack of accommodation, the offender reported in the August 2023 report that she rarely slept and often spending multiple days awake at a time.
69․The offender stated that antisocial individuals were the only people who would associate with her after her charges were publicised. The author of the August 2023 report also noted that the offender reported to have withdrawn her superannuation and obtained a vehicle so as to have somewhere to sleep.
70․As noted above, the offender’s housing situation appears to have positively improved as she now resides at a fixed address.
Employment
71․The offender completed a Diploma in Nursing and Animal Science in 2016. The offender then subsequently commenced study for a bachelor’s degree in criminology. However, she ceased attending with only one year of classes outstanding.
72․In the August 2023 report, the offender reported working in various casual jobs before graduating her Diploma of Nursing and working in this field for approximately five years.
73․The offender noted her work in a hospital, the Alexander Maconochie Centre (AMC) and for the Red Cross as a nurse.
74․The offender then reported having ceased employment altogether in 2020 after attempting to end her life and entering a rehabilitation facility. Subsequently, the offender denied any current employment stating that she was waiting on the sentencing outcome for the current offending before re-entering the work force.
75․The final update on this issue is in the May 2024 ICOAR, the offender stated a desire to recommence paid employment. The offender reported engaging with a job network provider and completing job searches. In the May 2024 ICOAR, the offender reported that she is receiving Centrelink Jobseeker payments and advised that her main expense was now housing.
76․As of the May 2024 ICOAR, the offender advised that she has cut contact with various antisocial influences in her life. The offender described spending the majority of her time with her partner and advised of her eventual wish to relocate to Queensland to escape negative influences in the ACT. I note that this desire to leave Canberra has been expressed as early as the 17 April 2023 hearing. The offender reported to have maintained some prosocial supports in the community and felt, with abstinence, these relationships would improve. The offender’s current partner verified this information.
Alcohol and Drug Use
77․The offender reported that she first tried alcohol aged 16 and that she would drink recreationally at parties. She advised that her use became problematic around age 22, as she began drinking heavily with her ex-partner. The offender described her use escalating to the point she would spend a large portion of her income on alcohol, consuming approximately one bottle of rum a night. The offender advised that she left her job in the AMC because of concerns that she would be fired as she had commenced drinking heavily.
78․The author of the August 2023 report did note that the offender demonstrated insight into her drinking, with the offender explaining that she would drink to avoid confronting the difficulties she was experiencing in relation to her mental health and social isolation.
79․The offender described trying marijuana when she was aged 15, 3,4-Methylenedioxy methamphetamine (MDMA), when she was aged 20 as well as cocaine when she was aged 25. The offender also reported having tried methamphetamines for the first time aged 26 when she was asked to leave rehabilitation for her continuing use of alcohol.
80․Importantly, the offender was admitted to a rehabilitation facility, the Health Retreat, in Queensland from October 2023 to January 2024 upon referral by the CRS. A letter from the Director of the Health Retreat noted that the offender commenced her program in the Health Retreat in Queensland on 18 October 2023, and noted that the offender:
[The offender] is openly and honestly participating in all scheduled group psychoeducation and individual therapy. [The offender] will work with several therapists, allowing her to target her treatment goals. The program is designed around a psychoeducation approach to change and this information empowers participant to affect personal change. [The offender] will be educated on various skills and strategies to manage her emotions and communications skills more effectively.
81․The offender also reported having completed a three-month residential rehabilitation program with her partner in January 2024, through the Health Retreat in Queensland, to the author of the May 2024 ICOAR. The offender claimed to have been abstinent during this three-month period and attributed this to the success of the rehabilitation program, as well as a lack of contact with previous antisocial associates. The offender also denied any problematic alcohol use, stating she had consumed alcohol on two occasions since August 2023. The offender’s current partner verified this information.
82․The author of the May 2024 ICOAR noted that it is to the offender’s credit that she recognised she had developed a problem with illicit substances since the current offences and stated a desire to achieve and maintain abstinence. The offender was also said to have demonstrated insight into her use, acknowledging being influenced by her environment and struggling to refuse illicit substance use in social situations.
83․During discussions with the offender, the offender expressed to the author of the May 2024 ICOAR that she felt she would benefit from a community-based order which prevented her from using illicit substances and which would require her to undertake regular drug testing. When prompted about engaging in a further rehabilitation program, the offender indicated her preference to engage in community-based counselling.
Health
84․In the August 2023 report, the offender reported having received multiple mental health diagnoses subsequent to the current charges. This includes Complex Post-Traumatic Stress Disorder, Autism Spectrum Disorder, Persistent Depressive Disorder and Alcohol Use Disorder.
85․The author of the August 2023 report noted that this information was verified as the offender supplied a copy of her psychological report. The offender detailed [redacted] as a predominant factor in her mental health problems, along with the suicide-death of a friend during high school [redacted]. After the current offences, the offender described her mental health deteriorating further. The offender reported deliberately self-harming, resulting in her being hospitalised for month with septic shock, as well as using intravenous heroin expecting to overdose and die.
86․The offender was also detailed as having been subject to in-patient treatment in December 2019, June 2020, January 2021, February 2021, March 2021, April 2022 and August 2022 for multiple days at a time. ACT Health Services confirmed to the author of the August 2023 report that this treatment occurred in the context of suicidal ideation on background of situational crisis, substance misuse and intoxication. The letter also noted that the offender also received further mental health support in the community as a voluntary patient.
87․In the May 2024 ICOAR, the offender reported that her mental health had improved since commencing a treatment with anti-depressants in October 2023. The offender also that advised she completed one session of counselling through her local church, and reported her intention to continue having sessions through the church as this would also allow her to develop more prosocial supports in the community.
Report of the Psychologist
88․Also before me is the psychologist report of Ms Leesa Morris dated 12 April 2023 (Morris report) prepared for the offender, which includes the following additional matters in relation to the offender’s subjective circumstances.
89․The Morris report broadly covered further details regarding the offender’s subjective circumstances.
90․The offender disclosed to Ms Morris that she left home when she was 21 years old and, as of the interview for the Morris report, was homeless. [Redacted]
91․The offender denied in the Morris report having any interest in “deviant sexual activities” and young children.
92․Further, the offender also gave the following explanation about her reaction to when the co-offender first sent through the child abuse materials:
I thought ‘he has the right to explain this’ but I was also thinking ‘where did these come from?’ [whether the images had been discovered or produced by the co-offender]. I was trying to figure out whether to just ignore it or report it. I thought I was being really clever, like an undercover cop trying to get information about where he got it from. Then I told him to stop sending me things like that.
(addition in brackets made in original)
Diagnosis
93․The Morris report observed the offender presented as an intelligent and articulate woman in a severely depressed state. Further, the author observed that while the offender presented as having “some insight in her general psychological functioning”, this “appears to be clouded by the cognitive load [the offender] used in navigating social situations”.
94․The Morris report diagnosed the offender from the reports made by the offender throughout the interview, observations of the offender’s behavior, and identified patterns in her life narrative indicated that the offender meets DSM-5-Text Revision criteria for:
(a)Autism Spectrum Disorder, Level 1;
(b)Post-traumatic Stress Disorder.
95․The author expressed her opinion that complex PTSD is the preferred diagnosis due to the “specificity that the DSM does not yet permit”. Further, she also noted that complex PTSD is more difficult to treat and has a longer and more pervasive impact on the individual.
96․Additionally, the Morris report noted that the offender meets criteria for Persistent Depressive Disorder, with persistent major depressive episode, Severe. The author of the Morris report noted that the condition places the offender at significant risk of further suicide attempts.
97․Finally, the Morris report noted that the offender’s report suggested that she would meet the criteria for Alcohol Use Disorder, Severe, in sustained remission.
98․It is convenient to note at this stage that the prosecution accepted the correctness of the Morris report’s diagnoses of complex PTSD, depressive disorder, autism spectrum disorder, and the in-remission alcohol use disorder. I will return to this concession later in these remarks when I consider the application of the Verdins / De La Rosa principles.
99․The Morris Report concluded the following:
13.2 All three of [the offender]’s psychological conditions are permanent and have significant impact on her psychological, cognitive and interpersonal functioning. At the time of her offending, the offender had experienced an increase in her alcohol use, the end of her first long term relationship, [redacted], loss of employment, accommodation instability and the loss of friendships [redacted]. While any person would find such circumstances challenging, given her trauma history and autism, the offender would have experienced this with greater intensity. In particular, [the offender] was seeking to address her social isolation, which compromised her objectivity about the co-offender.
13.3 In the midst of her loss of routine, structure and certainty about her future, [the offender]’s already impaired executive functioning (i.e., ability to reason, make decisions and judgements) would have been under increasing amounts of pressure as she attempted to find the appropriate social rules to navigate her situation.[The offender]’s narrative clearly denoted overlapping priorities including social connection, non-judgement of others, awareness of legal/appropriate boundaries, a desire to gain approval from others and a deep-seated belief that she would make the wrong decision. Particularly, [the offender]’s explanation of events indicates that she received the images rather than sought them out for herself.
13.4. [The offender’]s explanation of attempting to “find the source” of the images to provide to police has some credence as both a stalling tactic in making a decision and a means to gain approval. However, the provided agreed facts indicate that [the offender] stated attempts at ‘drawing out information’ are unsophisticated and self-incriminating. While this may reflect some of [the offender’s] social skills deficits, it cannot entirely explain her actions.
(emphasis added)
100․The Morris report closes by noting that the offender has a Low to Moderate risk of recidivism by virtue of her psychological functioning and level of rehabilitative efforts required.
Intensive Correction Order Assessment Report
101․When this matter first came before me, I determined that I would give consideration to the sentence being served by way of ICO.
102․The most recent ICO assessment report dated 3 May 2024 (the May 2024 ICOAR) concludes that the offender is unsuitable for an ICO.
103․The author of the May 2024 ICOAR stated the following assessment of the offender:
To her credit, [the offender]’s attitude towards case management was positive during interviews and she presented as insightful and forward-motivated regarding interventions. This Service also notes [the offender] has sourced stable accommodation, mental health treatment and reported completing a three-month rehabilitation program in the period since her last report. This is demonstrative of her motivation and capacity to engage in interventions which specifically address her risk factors.
Despite this, [the offender] disclosed having recommenced illicit substance use after completing the rehabilitation program. This resulted in her providing a positive sample for drug testing during the ICO assessment period. It is likely [the offender] would benefit from ongoing support in this area to maintain abstinence. [The offender’]s previous non-compliance with the preparation of her PSR, and her failure to attend during the ICO assessment process, indicates she would unlikely be able to comply with the rigorous nature of an ICO.
104․The May 2024 ICOAR assessed the offender as a medium risk of reoffending.
105․The May 2024 ICOAR also noted that the offender will be assessed for suitability to engage in the Sex Offender Program.
106․At the May 2024 hearing, counsel for the prosecution properly submitted be that I may be reluctant to impose an ICO in light of the findings of the May 2024 ICOAR.
107․Counsel for the prosecution submitted that while there was some improvement in the offender’s stability of life, there remains significant issues regarding the offender’s drug use and her ability to comply with directions from Corrective Services.
Remorse
108․Section 33(1)(w) of the Sentencing Act permits me to take into consideration whether the offender has demonstrated remorse. Similarly, s 16A(2)(f) of the Commonwealth Crimes Act also permits me to take into account the degree to which the offender has shown contrition for the offence by:
(a)taking action to make reparation for any injury, loss or damage resulting from the offence (Commonwealth Crimes Act s 16A(2)(f)(i)); or
(b)in any other manner (Commonwealth Crimes Act s 16A(2)(f)(ii)).
109․To the author of the August 2023 report, the offender expressed her attitude to the offending in the following way:
[The offender] agreed with the Statement of Facts… however denied having any sexual interest in children. During discussions [the offender] drew distinctions between the viewing of child abuse material and the production of the material or contact sex offending. [The offender] advised that during the commission of the offences she had minimised non-contact offending as she felt that there was no active harm however explained that she understood this was incorrect. Throughout interviews [the offender] was able to elaborate on the impact of her offending on the abuse of children and appeared to accept responsibility for her offending.
When questioned about the sexual conversations regarding the material, [the offender] stated that she was trying to assess whether her co-offender intended to commit a contact offence and also to gather evidence against him. [The offender] described empathising with her co-offender’s self-hatred, due to her poor mental health, and believing the co-offender would never act on his fantasies. [The offender] noted that she was drinking heavily during this period and used alcohol to avoid addressing many difficulties in her life, including making a decision regarding reporting the child abuse material. [The offender] claimed that, as soon as she realised her co-offender presented a real risk to children, she reported the matter to police. [The offender] advised that she believed she had made the right choice [redacted].
… [The offender] noted that she had lost many of her prosocial friends within the community due to her heavy use of alcohol and felt desperate for support. [The offender] described feeling that the co-offender was the only person she had left and acknowledged having struggled with indecision regarding the charges.
(emphasis added)
110․Ultimately, the author of the August 2023 report concluded that the offender presented as insightful regarding her risk factors, noting the shift in her life circumstances after the publication of these offences in the media.
111․Further, the Morris report also observed the following:
[1.2] [The offender] has accepted responsibility for her actions and the impact this had on the abuse of children. [The offender] has described a confused and impaired decision-making capacity at the time of her offending, relating largely to if and when to report the co-offender’s behaviours to police. [The offender] notes a number of competing motivations in her interactions with the co-offender via text. Some of this can be explained by the social skill deficits associated with autism.
…
[12.4] [The offender] expressed remorse for her offending and her difficulties in making the appropriate decision to report the information to police. She was noted to blame herself and see this as a pattern within her life where she has difficulty making decisions with positive consequences for herself. This can be attributed to [the offender’s] executive function impairment arising from her autism.
112․The prosecution in written submissions accepted that the offender has demonstrated contrition and remorse, evidenced by having turned herself into the police and otherwise cooperated with police enforcement authorities.
113․In light of the evidence, I will ascribe appropriate weight to the offender’s expression of remorse.
Criminal History
114․When the matter first came before me for sentence, the offender had no criminal history save for the current offending. However, on 6 May 2024, counsel for the prosecution tendered an updated criminal history for the offender. That history now contains a fresh entry dated 26 February 2024, namely a charge of providing a false name or address contrary to s 211(2)(e) of the Crimes Act. As noted by counsel for the offender, the maximum penalty for this offence is a fine only.
115․As the prosecution correctly submitted, this charge is yet to be finalised at the time of the sentence. Court records indicate that the offender has pleaded not guilty for this charge on 9 May 2024, with a further mention listed in the Magistrates Court for 18 July 2024. I therefore cannot and do not take this matter into account.
116․The prosecution tendered the updated criminal history on a limited basis, namely on the question of the offender’s potential compliance with directions from Corrective Services.
117․For his part, counsel for the offender did not cavil with the basis upon which the prosecution was tendering the updated criminal history. However, counsel was instructed that the offender did have a medical certificate to explain her non-attendance at court.
118․Consistently, with the presumption of innocence and the limited basis for which the prosecution tendered the document, I accept for the purposes of sentencing that the offender was previously a person of good character prior to the commission of these offences. See also, however, Mouscas v The Queen [2008] NSWCCA 181 at [37].
Discount for pleas of guilty and assistance to authorities
Pleas of guilty
119․The offender entered pleas of guilty to all charges on 7 November 2022 in the ACT Magistrates Court. Counsel for the prosecution conceded that the plea was entered early in the proceeding.
120․Pursuant to s 33(1)(j) of the Crimes (Sentencing) Act 2005 (ACT), when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard.
121․In 2020, s 16A of the Commonwealth Crimes Act was amended with effect for any sentence imposed on or after 20 July 2020. As a result of this amendment, the Court is now required to take into account, if an offender has pleaded guilty to a charge, the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to, the offence: s 16A(2)(g)(iii). Previously, ACT authority in R v Harrington [2016] ACTCA 10; 11 ACTLR 215 prohibited a court from taking into account the utilitarian value of a plea.
122․While the prosecution accepted that the plea was entered early, counsel for the prosecution also noted that the plea was entered in the face of a strong case: see Phillips v The Queen [2012] VSCA 140; 37 VR 594 at [15]-[18] (Nettle JA), [61], [70] (Redlich JA and Curtain AJA); DPP (Cth) v Thomas; DPP (Cth) v Wu [2016] VSCA 237; 53 VR 546 at [5].
123․In accordance with s 35, I would allow a 25% discount for the plea of guilty.
Assistance to authorities
124․A salient feature of this case was that the offender did come forward and reported to the police. In the 17 April 2023 hearing, the offender gave the reasons as to why she did so in cross-examination:
PROSECUTOR: Eventually you did go to the police. Why was that?
OFFENDER: He turned up at my house unexpectedly and he said some things in person that sounded a lot more like planned than they did a fantasy and I realised that I couldn't – like it didn't matter what happened to me, I couldn't like sit on that anymore because there was sort of – there was an actual immediate real danger and I wouldn't be able to live with myself.
125․As noted above, the offender also gave a similar explanation for her reasons to the author of the August 2023 report.
126․In written submissions, counsel for the prosecution referred to R v Ellis (1986) 6 NSWLR 603, where the NSW Court of Criminal Appeal (Street CJ, Hunt and Allen JJ agreeing) made the following observations (at 604[D]):
When the conviction follows upon a plea of guilty, that itself is the result of
a voluntary disclosure of guilt by the person concerned, a further element of
leniency enters into the sentencing decision. Where it was unlikely that guilt
would be discovered and established were it not for the disclosure by the
person coming forward for sentence, then a considerable element of leniency
should properly be extended by the sentencing judge. It is part of the policy of
the criminal law to encourage a guilty person to come forward and disclose
both the fact of an offence having been committed and confession of guilt of
that offence.(emphasis added)
127․Further, I note that there are specific provisions in the Commonwealth Crimes Act and the Sentencing Act that deals with sentence discounts for assistance to law-enforcement. The relevant section of the Commonwealth Crimes Act reads as follows:
16AMatters to which court to have regard when passing sentence etc.—federal offences
…
(2)In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:
…
(h)the degree to which the person has cooperated with law enforcement agencies in the investigation of the offence or of other offences;
128․Counsel for the prosecution submitted that a court does not need to state a numerical discount as such under this regime, as s 16A(2)(h) is merely one of the factors that I must take into account.
129․The equivalent provision in the Sentencing Act is as follows:
36 Reduction of sentence—assistance to law enforcement authorities
(1)This section applies if—
(a) an offender is convicted or found guilty of an offence; and
(b) the offender assisted, or undertook to assist, law enforcement authorities in—
(i) preventing, detecting or investigating the offence or any other offence; or
(ii) a proceeding in relation to the offence or any other offence.
(2)A court may impose a lesser penalty (including a shorter nonparole period) on the offender than it would otherwise have imposed having regard to the degree of assistance provided, or undertaken to be provided, to law enforcement authorities.
Note The DPP may appeal against the reduced sentence if the offender does not comply with the undertaking (see s 137).
(3)In deciding whether to impose a lesser penalty for the offence, and the nature and extent of the penalty to be imposed, the court must consider the following matters:
(a) the effect of the offence on the victims of the offence, the victims’ families and anyone else who may make a victim impact statement;
Note For who may make a victim impact statement, see s 49.
(b) the significance and usefulness of the offender’s assistance to law enforcement authorities, taking into account any evaluation by the authorities of the assistance provided or undertaken to be provided;
(c) the truthfulness, completeness and reliability of any information or evidence provided by the offender;
(d) the nature and extent of the offender’s assistance or promised assistance;
(e) the timeliness of the assistance or undertaking to assist;
(f) any benefits that the offender has gained or may gain because of the assistance or undertaking to assist;
(g) whether the offender will suffer harsher custodial conditions because of the assistance or undertaking to assist;
(h) any injury suffered by the offender or the offender’s family, or any danger or risk of injury to the offender or the offender’s family, because of the assistance or undertaking to assist;
(i) whether the assistance or promised assistance is in relation to the offence for which the offender is being sentenced or an unrelated offence;
(j) if the offender is to serve a sentence of imprisonment—the likelihood that the offender will commit further offences after release from imprisonment.
(4) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.
130․I am also required to state the penalty I would have otherwise imposed were it not for the application of s 36, and the reason for imposing said lesser penalty: Sentencing Act s 37(1)-(2). Failure to do comply with s 37 is a specific, appealable error of significance: Urlich v The Queen [2019] ACTCA 30, 14 ACTLR 267 at [50], [52] (Urlich).
131․In Urlich, the applicable provision was s 35A and not s 36 of the Sentencing Act. Nevertheless, the relevant principles broadly apply.
132․Importantly in this case, counsel for the prosecution correctly noted that, at the time of the offender’s confession and disclosure, there was no active investigation by the police against the offender or the co-offender for this offending. This was unknown guilt and the policy of the criminal law is clear in this regard. The criminal law must encourage guilty people to come forward and assist police.
Consideration
133․Ultimately, both parties properly agreed that a 25% discount for the guilty pleas and in the vicinity of 10% for the assistance to law enforcement authorities was appropriate. Both counsel did not cavil that a range of 35% to 40% discount is appropriate as a combined discount. As correctly submitted by the prosecution, the assistance rendered by the offender was both unusual and significant in its scope.
134․Taking into account the relevant matters, in my view, a discount of 40% is appropriate. The assistance rendered by the offender was important both in its scope and significance. In respect of both the ACT offence and Commonwealth offence, I will discount the relevant term of imprisonment by 40%. Albeit that it is not mandatory to state a discount concerning Commonwealth offences, it is clearly preferable to do so: Huang aka Liu v The Queen [2018] NSWCCA 70; 332 FLR 158 at [9] (Bathurst CJ) (Huang), cited in Peters v The Queen [2018] NSWCCA 126 (Peters) at [27]; Xiao v The Queen [2018] NSWCCA 4, 96 NSWLR 1 at [280] (Xiao).
Time in custody
135․The offender has spent 1 night in custody solely referable to these offences. As such, both parties agreed that the offender’s sentence of imprisonment should accordingly be backdated by 1 day. I have incorporated this 1 day in custody into my ultimate sentence.
Comparable Cases
136․It is well established that bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. This is because statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 at [55] (Hili). There are a number of judgments relating to offenders who committed similar offences. Additionally, it should be noted that, as the High Court stated in DPP (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4]:
[C]onsiderations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent.
137․The following cases provide a “yardstick” as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54].
Peters v The Queen [2018] NSWCCA 126
138․I was referred to five cases by the prosecution. The first is Peters. As with this matter, the offender was charged with one state offence of possess child abuse material (Crimes Act 1900 (NSW) s 91H(2)) and one Commonwealth count of using a carriage service to access child pornography material contrary to the-then in-force s 474.19(1)(a)(i) of the Commonwealth Criminal Code: Peters at [4]-[5]. The maximum penalty for both offences are 10 years’ and 15 years’ imprisonment respectively: Peters at [4]-[5].
139․The first count involved 676 files stores across multiple devices, and the second involved 576 files (all duplicates of files subject of Count 1): Peters at [8], [12]. R A Hulme J described the materials in the following manner:
9.Police classified the material according to the six categories of the Child Exploitation Tracking Scheme (“CETS”) scale. There were still images categorised in each of the 6 scales with the majority being in category 1 (depictions of children with no sexual activity), category 2 (non‐penetrative sexual activity between children or solo masturbation) and category 4 (penetrative sexual activity involving children or both children and adults). In relation to the videos the majority were within categories 2 and 4.
10.Within the cloud storage account, the worst of the still images were of children in bondage or sadistic poses (category 5). There were also images of children and animals involved in sexual acts. Within the category 4 images there were depictions of acts of oral penetration and vaginal penetration. Some of the children depicted in the images appeared to be below the age of three. Two of the images depicted an adult male engaging in vaginal penetration of a baby.
140․On appeal, the NSW Court of Criminal Appeal allowed the offender’s appeal on the basis that the trial judge did not take into account the utilitarian value of a plea for the Commonwealth offence as well as error in imposing total accumulation when his Honour intended partial accumulation: Peters at [28], [30], [36]. See also Huang.
141․The NSW Court of Criminal Appeal resentenced the offender to (Peters at [49](3)(a)-(b)):
(a)18 months’ imprisonment with the respect of the possession offence commencing 28 August 2017, with a non-parole period of 9 months expiring on 27 May 2018.
(b)1 year and 10 months’ imprisonment, starting from 28 February 2018; The offender is to be released on a state statutory parole order upon the expiry of the non-parole period and will be released on a Commonwealth recognizance on 27 November 2018: Peters at [48].
A discount of 25% was applied to both the Commonwealth and state sentences for the plea of guilty: Peters at [47].
Mertell v The King [2022] ACTCA 69
142․The next case is Mertell v The King [2022] ACTCA 69 (Mertell). The prosecution noted that the offender in this matter was convicted of 9 counts, with Counts 1-6 and 8 involving the possession of 513 child abuse materials (including 56 duplicate files) on seven different devices: Mertell at [8]. The nature of the material was described the Court of Appeal (Loukas-Karlsson, Kennett and Abraham JJ) as:
10. Of the 513 files the [the offender] possessed, 128 (or 25%) were categorised as according to the Interpol 4 Tier classification system as category 1 files depicting the anal or genital region of prepubescent children, or their involvement in or witnessing of a sexual act, and 385 of the files (or 75%) were categorised as being category 2 files depicting pubescent children.
143․The other two counts, Counts 7 and 9, involving the offender accessing 71 child abuse material files: Mertell at [9]. Count 7 covered the appellant accessing the 7 files the offender was in possession subject to count 6. Count 9 involved the appellant accessing 64 of the 110 files subject of count 8: Mertell at [10]. The maximum penalty for all of the offences is 15 years’ imprisonment: see Mertell at [8].
144․The offender was 68 years old with a limited social network, reporting the motivation for offending was sexual gratification: Mertell at [13], [14], [29]. The offender reported memory of sexual abuse by his father at the age of five and had been diagnosed with Attention Deficit Hyperactivity Disorder and Autism Spectrum Disorder: Mertell at [13]-[14]. While there was no causal link to the offending between the conditions, the trial judge found that limbs 5 and 6 of Verdins were enlivened by making imprisonment more onerous and creating an adverse effect on his mental health: Mertell at [14].
145․The offender had “guarded” prospects of rehabilitation and lacked insight into offending: Mertell at [11]-[12]. However, the offender did enter an early plea of guilty and a discount of 25% was applied at trial: Mertell at [15]
146․The offender appeal was allowed on the basis of the trial judge failing to give adequate weight to totality. This was a matter conceded by the prosecution: Mertell at [4]-[5].
147․After a discount of 25% for the plea of guilty, the offender was resentenced to a total effective sentence of 30 months’ imprisonment, to be released after 12 months on recognisance: Mertell at [38], [42].
DPP (Cth) v Garside [2016] VSCA 74; 50 VR 800
148․The third case referred to is DPP (Cth) v Garside [2016] VSCA 74; 50 VR 800 (Garside). As noted by the prosecution, the offender had accessed and possessed 6,018 images and videos, 5,749 of which was classified as category 1 (no sexual activity): Garside at [8]. As with this case, the offender was charged with a Commonwealth (Commonwealth Criminal Code s 474.19(1)(a)(i)) and state offences (the-then Crimes Act 1958 (Vic) s 70(1)). The offences carried a maximum penalty of 15 years’ and 5 years’ imprisonment respectively: Garside at [2].
149․The offender was a 55-year-old man without any criminal history who made admissions to the offending: see Garside at [72]. The trial judge also found that the offender had “very good” prospects for rehabilitation: Garside at [78].
150․The offender was sentenced to a total effective sentence of a four-year Community Corrections Order for both counts, with 300 hours community work and a $5,000 fine attached the order in relation to the state possession offence: Garside at [2]. While the exact numerical discount was not apparent from the judgment, the trial judge noted that had the offender not pleaded guilty, he would have sent the offender to jail: Garside at [2], [46].
151․The Victorian Court of Appeal (Redlich and Beach JJA) found that the sentence was manifestly inadequate. However, the appeal was dismissed in the exercise of residual discretion noting the offender had undertaking significant steps in rehabilitation: Garside at [5], [80], [82]-[83].
DPP (Cth) v Zarb [2014] VSCA 347; 46 VR 332
152․The fourth case is DPP (Cth) v Zarb [2014] VSCA 347; 46 VR 832 (Zarb). The offender in Zarb was charged with one count of accessing child pornography (Commonwealth Criminal Code s 474.19(1)(a)(i)) and two counts of transmitting child pornography (Commonwealth Criminal Code s 474.19(1)(a)(iii)). Both provisions have now been repealed, but they carried the maximum penalty of 15 years’ imprisonment.
153․The first count involved the offender accessing 416 child pornography files downloaded over a 15 months’ period: Zarb at [6]. The first transmission offence involved the offender engaging in conversation and subsequently sending 3 child pornography materials to an undercover police operative: Zarb at [5], The second transmission offence involved the offender sending 10 child pornography materials to different recipients in a single day: Zarb at [9].
154․The offender was a 47-year-old man described as having “powerful mitigating factors”, including guilty pleas, significant remorse, and a disrupted and distressing childhood: Zarb at [1], [11], [29]. The offender also reported alcohol and drug abuse, and he withdrew $50,000 of his own money from his super account to attend a residential drug and alcohol treatment program: Zarb at [11]-[13].
155․The Victorian Court of Appeal (Neave and Kyrou JJA) found that the sentence imposed by the trial judge (community corrections order) to be manifestly inadequate: Zarb at [36]. The offender was resentenced the offender to a term of imprisonment for 3 months for the accessing charge, and to a community corrections order for 2 years for the two transmission charges commencing at the end of the term of imprisonment: Zarb at [51].
Burton v The Queen [2020] NSWCCA 127
156․Finally, the prosecution referred to Burton. As outlined by the prosecution, the offender in this matter was charged with one count of using carriage service to transmit child pornography material, contrary to s 474.19(1) of the Commonwealth Criminal Code (maximum penalty of 15 years imprisonment), as well as possessing child abuse material, contrary to s 91H(2) of the Crimes Act 1900 (NSW) (maximum penalty of 10 years’ imprisonment). In relation to the first count, the trial judge also took into account on a s 16BA schedule, a charge of using of use carriage service to transmit indecent material to persons under the age of 16 years: Burton at [3].
157․The Commonwealth transmission offence relates to Skype communications over a period of 2 years with various adults in which the offender transmitted graphic written descriptions of sexual activities he would perform with children: Burton at [10]-[11], [17], [30]. The state possession charge related to 4 images found on the hard drive upon a search of the offender’s premises: Burton at [13].
158․The offender was aged between 24 and 26 years at the time of the offending, with no prior criminal history and was employed the Australian Defence Force at the time of his arrest: Burton at [9]. While the trial judge allowed a 10% discount for pleas of guilty, the offender had limited remorse or insight into his offending: Burton at [19]-[20]. The trial judge found that the offender had a “complex psychology” and accepted that the offending was a function of the offender’s personality structure. Nevertheless, the trial judge found that the offender was young and had some prospects of rehabilitation: Burton at [19].
159․The total sentence was therefore 21 month’s imprisonment, with a non-parole period of 12 months: Burton at [5]. An appeal of this sentence was dismissed: at [44].
Application of the Verdins and De La Rosa principles
160․In R v Verdins [2007] VSCA 102; 16 VR 269 (Verdins); the Victorian Court of Appeal identified six ways in which impaired mental functioning may be relevant for sentencing (at [32]):
Impaired mental functioning, whether temporary or permanent (the condition), is relevant to sentence in at least the following six ways:
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both [citing Payne v The Queen [2002] WASCA 186; 131 A Crim R 432 at [43]].
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
161․In DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [177] (De La Rosa), the New South Wales Court of Criminal Appeal similarly set out relevant principles. See also R v Engert (1995) 84 A Crim R 67.
162․As noted above, counsel for the prosecution accepted the diagnoses made by the Morris report and that the Verdins/ De La Rosa principles are engaged in the case of the offender. Counsel submitted that the main issue is how the principles are engaged.
163․Counsel for the prosecution fairly conceded that the offender’s impaired executive functioning, particularly as described in the emphasised portions of [13.3] reproduced in these remarks above at [99], could be taken into account to a degree to reduce the offender’s moral culpability: Verdins at [32](1). However, the prosecution properly and correctly submitted that the degree to which the impairment reduces moral culpability cannot be absolute or significant. The prosecution emphasised paragraph [13.4] of the Morris report, which I reproduce below for convenience:
[The offender’]s explanation of attempting to “find the source” of the images to provide to police has some credence as both a stalling tactic in making a decision and a means to gain approval. However, the provided agreed facts indicate that [the offender]’s stated attempts at ‘drawing out information’ are unsophisticated and self-incriminating. While this may reflect some of [the offender]’s social skills deficits, it [cannot] entirely explain her actions.
164․In other words, the prosecution submitted that this acknowledgment by Ms Morris must temper the reduction of culpability brought by the offender’s mental health. I agree. The prosecution, again, properly and correctly submitted that denunciation and general deterrence will still play a role in the sentencing exercise. I agree with this submission. I note that counsel for the offender did not cavil with this submission.
165․Further, counsel for the prosecution noted that the Morris report was silent on the question of how a sentence of imprisonment will potentially weigh more heavily on the offender. However, counsel conceded that some “reasonable inferences” could be made in relation to the hardship the offender will face in custody on the specific facts of this case. I agree on the evidence in this case.
166․For his part, counsel for the offender did not make any specific submissions as to which specific aspects of Verdins were engaged.
Parity
167․Parity is an issue in this case as there is a co-offender, Mr Henderson.
168․The Court of Appeal in Thompson v The Queen [2018] ACTCA 2 at [24] stated the following:
[J]ust as equal justice requires that like offenders should be treated alike, relevant differences should also be acknowledged: Postiglione v The Queen (1997) 189 CLR 295, 301–2 (Postiglione) per Dawson and Gaudron JJ. This approach to parity has been applied by this Court in many cases, including Singh v The Queen [2017] ACTCA 17 at [74], Rubino v The Queen [2015] ACTCA 22 at [26]–[27] and Le Clair v The Queen [2017] ACTCA 19 at [48].
(emphasis added)
169․The principles in relation to parity in sentencing co-offenders are well known. Unjustifiable disparity is an infringement of the equal justice norm: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [32]; Lowe v The Queen (1984) 154 CLR 606, 610-1 (Mason J) and Petterson v The Queen [2013] NSWCCA 133 at [43].
170․As noted above at [8], the co-offender was resentenced by the Court of Appeal for the following offences (Henderson CA at [73](3)):
(a)using a carriage service to possess child abuse material, contrary to s 474.22A(1) of the Commonwealth Criminal Code. Resentenced to 1 year and 10 months’ imprisonment commencing on 8 November 2023 and expiring on 7 September 2025;
(b)using a carriage service to transmit child abuse material to s 474.22(1) of the Commonwealth Criminal Code. Resentenced to 11 months’ imprisonment commencing on 8 May 2023 and expiring on 7 April 2024.
(c)the appellant to be released on 21 February 2024 upon entering into a recognisance (9.5 months into the sentence for transmitting child abuse material), with the payment of security of $500 without surety, to be on good behaviour for a period of two years from that date and to appear and receive sentence if so called upon at any time in respect of any breach during the relevant period.
171․As there was no challenge to the 25% discount applied to the sentences in recognition of utilitarian discount of the plea, the Court of Appeal also similarly imposed a 25% discount to the sentence imposed on the co-offender: Henderson CA at [53], citing Xiao at [278].
172․Counsel for the prosecution correctly and properly in her role in assisting justice according to prosecution guidelines made the following submissions on the issue of parity:
(a)The main difference lies in the fact that the offender handed over materials to the police and also implicated the co-offender. This was a case where each offender being caught was not inevitable.
(b)Both the offender and the co-offender had been charged with a Commonwealth transmission and possession of child abuse material using a carriage service charge. Ultimately, however, the Commonwealth offending in this case is less objectively serious.
1․ The offender transmitted fewer number of child abuse materials (11 compared to 68) in a shorter period of time (3 weeks compared to six months) than the co-offender.
2․ The offender had “far fewer” child abuse material in her mobile phone than the co-offender (68 compared to 1,715). The co-offender also had possession of materials across his phone, laptop, and a hard drive.
(c)The depravity of the material is the same. The prosecution submitted that this is the case of the material contained in the hard drive in possession of the offender.
(d)Both the offender and the co-offender were charged with possession of child abuse material on a single date.
(e)The offender has an additional ACT charge (Count 1) as the prosecution noted that it could not be proven beyond reasonable doubt that the materials on the hard drive came from a carriage service.
(f)The prosecution noted that the ACT offence also carried “a far lower” maximum penalty of 7 years’ imprisonment. Counsel noted that this lower penalty made things “more difficult” in the sense that while there are more materials on the hard drive, any sentence I impose must have regard to the relevant lower penalty.
173․In sentencing the offender, I take into account the principles of parity in accordance with the authorities outlined above and note the different objective matters and subjective factors pertaining to the offender and co-offender.
174․In particular, the critical difference between the offender and the co-offender is that the offender was of assistance to law enforcement. This is obviously to her credit. The offender brought to the attention of the authorities both her own guilt and the guilt of the co-offender.
Statutory and Other Relevant Considerations
175․The offender is to be sentenced for two Commonwealth offences and one ACT offence. As such, I am required to have regard to both Commonwealth and ACT sentencing principles: R v Yardley [2021] ACTSC 2 at [74], R v Appleby [2021] ACTSC 55 at [101] (Appleby).
176․Different statutory regimes apply to the sentencing of the offender as the offender has pleaded guilty to both Commonwealth and Territory offences.
177․As I noted in Appleby at [102], the principles of sentencing for Commonwealth offences are contained in Part 1B of the Commonwealth Crimes Act. Section 16A(1) states that a sentence must be of a “severity appropriate in all the circumstances of the offence”. A non-exhaustive list of factors the court must take into account are contained in s 16A(2).
178․Common law principles including parity, proportionality and totality apply when sentencing a federal offender: Postiglione v The Queen (1997) 189 CLR 295 (Postiglione); Johnson v The Queen [2004] HCA 15; 78 ALJR 616 at [15].
179․Sentencing for the Territory offences is determined in accordance with the Sentencing Act. Section 33 of the Sentencing Act outlines the matters which the court must consider. The prosecution correctly noted in its written submissions that the matters are largely similar to the one I must take into account in the Commonwealth Crimes Act.
180․It is important to note the case of De Leeuw. In De Leeuw, the NSW Court of Criminal Appeal stated the principles that appellate courts have consistently underlined when it comes to offences involving child abuse materials at [72]. The relevant principles include, first, unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted. Second, general deterrence is the primary sentencing consideration for offending involving child exploitation material. Third, less or limited weight is given to an offender’s prior good character. Fourth, offending involving child exploitation material 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 such depraved material. Fifth, offending involving child exploitation material is difficult to detect given the anonymity provided by the Internet. Sixth, the possession of child exploitation material creates a market for the continued corruption and exploitation of children. Seventh, there is a paramount public interest objective in promoting the protection of children as the possession of child exploitation material is not a victimless crime - children are sexually abused in order to supply the market. Eight, and finally, 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.
181․As with every sentencing exercise, careful attention must be paid to the maximum penalties, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357. In this case, there are varying maximum penalties as between the Commonwealth and Territory offences.
182․It is also worth noting that, as the prosecution submitted, both the Commonwealth Crimes Act and the Sentencing Act require consideration of alternatives to imprisonment: Commonwealth Crimes Act s 17A(1), Sentencing Act s 10. In this case, both parties agreed that the imprisonment threshold has been crossed. Nevertheless, it was in my view properly agreed by both counsel that the offender did not necessarily need to serve this imprisonment by way of full-term imprisonment. Counsel were correctly guarded in submissions on the offender’s ability to comply with an ICO even if one were to be ordered contrary to the recommendation of the May 2024 ICOAR. In my view, this is abundantly clear on the evidence.
Commonwealth Offences (Counts 2 and 3)
183․As I noted above at [177]-[178], I am bound to apply Part 1B of the Commonwealth Crimes Act and some common law principles. Section 16A(1) of the Commonwealth Crimes Act requires me to impose a sentence of appropriate severity in all the circumstances of the offence.
184․Section 16A(2) provides a number of mandatory considerations on sentence, which include the consideration of general and specific deterrence, adequate punishment, and rehabilitation. I have considered the matters in s 16A(2) that are relevant to the offender’s sentence: see Appleby at [106].
185․Further, it is well-established that both state and territory sentencing laws can still operate with respect to the offender, and that they only do so in so far as the laws of the Commonwealth provide and are excluded when the latter provide no room for their application: Pham at [22] (French CJ, Keane and Nettle JJ).
ACT Offence (Count 1)
186․In sentencing the offender, the court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above.
187․The court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, recognition of harm to the victim, and rehabilitation are important sentencing considerations.
188․When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v Queen [2016] ACTCA 53; 19 ACTLR 223 at [64]. In doing so, I must ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved: Postiglione at 307-308; Mill v The Queen (1988) 166 CLR 59 at 63; Pearce v The Queen [1998] HCA 57; 194 CLR 610 and R v XX [2009] NSWCCA 115; 195 A Crim R 38. See also O’Brien v The Queen [2015] ACTCA 47, 19 ACTLR 244 at [26], citing Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 4 at [27] (Howie J).
General Deterrence
189․General deterrence is one of the most significant sentencing considerations for offences of this kind. See also R v Poynder [2007] NSWCCA 157; 171 A Crim R 544.
190․Child abuse material offences are not victimless crimes. As underlined in De Leeuw, accessing and possessing child abuse material creates a market for the continued corruption and exploitation of children. Children are sexually abused to supply the market: De Leeuw at [72](h). This is a depraved market.
191․Child abuse material offences are occurring on an international level and regrettably it must be said are becoming increasingly prevalent: De Leeuw at [72](d). The internet has allowed for relative ease and anonymous viewing of child abuse materials: see De Leeuw at [72](e). As I stated in R v Middleton [2023] ACTSC 50, surely technology can stay ahead of depraved people who manufacture appalling child exploitation material for this black hole of the internet: see at [204]. Surely the internet can be better regulated and policed so that these degrading materials can no longer be found. Supply of this appalling material appears to call forth demand. I take general deterrence into account in this sentence.
Specific deterrence
192․The prosecution correctly submitted on the issue of specific deterrence that that the offender reported herself to authorities, and this suggests to the prosecution and to the Court that the offender’s own moral compass may act to prevent her from engaging in such behaviour in the future. This is relevant to my assessment of specific deterrence.
Rehabilitation
193․Rehabilitation is an important consideration having regard to the offender’s remorse and previous good character. I draw on the important statement of French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32]:
Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.
194․In relation to rehabilitation, I am required to consider s 16A(2AAA) of the Commonwealth Crimes Act in sentencing the offender:
In determining the sentence to be passed, or the order to be made, in respect of any person for a Commonwealth child sex offence, in addition to any other matters, the court must have regard to the objective of rehabilitating the person, including by considering whether it is appropriate, taking into account such of the following matters as are relevant and known to the court:
(a) when making an order—to impose any conditions about rehabilitation or treatment options;
(b) in determining the length of any sentence or non‑parole period—to include sufficient time for the person to undertake a rehabilitation program.
(emphasis added)
195․The prosecution properly submitted that this requirement does not displace or override the requirement under s 16A(1) of the Commonwealth Crimes Act that the sentence be a “severity appropriate in all the circumstances of the offence”: see also Boulton v The Queen [2014] VSCA 342, 46 VR 308 at [72].
196․At the April 2023 hearing, the offender gave evidence that she is willing to seek further psychological treatment.
197․At the time of sentence, the respondent’s prospects of rehabilitation remain somewhat guarded in relation to drug rehabilitation. This is particularly so given the lack of up-to-date evidence as to how the offender fared at the Health Retreat.
198․I note the following recommendation from the Morris report:
13.5At present, [the offender] has a Low to Moderate risk of recidivism by virtue of her psychological functioning and level of rehabilitative efforts required. [The offender] has previously engaged with psychological interventions, however likely found them ineffective due to her undiagnosed autism. Additionally, individuals in [the offender]’s current severe state of depressive episode are challenging to engage in intervention. [the offender] would likely most benefit from intervention with a psychologist aware of the impacts of neurodiverse functioning on trauma and depressive episodes.
(emphasis in the original)
199․Clearly, the offender’s general prospects of rehabilitation remain somewhat guarded. In my view, supervision is necessary.
Presumption of cumulation
200․As submitted by the prosecution, there is a legislative presumption in favour of cumulative sentences when sentencing an offender for multiple Commonwealth child sex offences, or a mixture of Commonwealth child sex offences and Territory registrable child sex offences: Commonwealth Crimes Act s 19(5). The prosecution correctly submitted that the presumption in favour of cumulation applies in this matter in relation to all three counts.
201․Counsel for the prosecution properly submitted that it is appropriate that there be a “sensible degree of cumulation” in this case to reflect the separate and distinct aspects of offending by way of possessing child abuse material and offending by way of transmitting such material to others: Allison (a pseudonym) v The Queen [2021] VSCA 308. That of course does not require complete cumulation: see Mertell at [4], [18]. Overall, totality must nevertheless be considered and applied: see Henderson at [73], Henderson CA at [23], [69].
202․Counsel for the prosecution correctly noted that it is open to the Court to order a wholly or partially concurrent sentences if it would nevertheless still result in an overall sentence that is of a severity appropriate in all the circumstances: Commonwealth Crimes Act s 19(6). I state my reasons for imposing concurrency at [213]: Commonwealth Crimes Act s 19(7).
There are exceptional circumstances in this case
203․Pursuant to the amended s 20(1)(b)(ii) of the Commonwealth Crimes Act, if I sentenced the offender to imprisonment and release her on a Recognisance Release Order, there is a presumption that the offender is to serve some period of actual imprisonment unless exceptional circumstances apply which justify the offender being released immediately.
204․As I noted in R v Dunnicliff [2023] ACTSC 350 (Dunnicliff) the operation of s 20(1)(b)(ii) is therefore that there is a statutory presumption that offenders will serve some period of actual imprisonment unless there are “exceptional” circumstances: Dunnicliff at [125]. Counsel for the prosecution noted that what constitutes exceptional circumstances is deliberately not defined. Counsel referred to the case of R v Tootell; ex parte Attorney-General (Qld) [2012] QCA 273, where the court stated at [18]:
To be exceptional, a circumstance need not be unique or unprecedented, or very rare; but it cannot be one that is regularly, or routinely or normally encountered.
205․In written submissions, counsel for the prosecution noted that it is open for the Court to find that such exceptional circumstances exist in this case. I agree. The prosecution correctly submitted as referred to earlier that the circumstances of this case were unusual, including the fact that the offender turned herself and the co-offender to the police. Further, counsel also noted that in her submission the Commonwealth counts are in the low-to-mid objective seriousness (Count 2) and mid objective seriousness respectively.
206․As discussed above, the question of “exceptional circumstances” only arises if the sentence is to be made under s 20(1)(b). An imposition of an ICO is of a different nature, being imposed under s 20AB of the Commonwealth Crimes Act: Dunnicliff at [126]. The statutory presumption that an offender will serve some period of actual imprisonment is not enlivened through the imposition of an ICO: Dunnicliff at [126]. The presumption does apply to a recognisance release order. See also R v Dean [2023] ACTSC 98 at [47]-[48] (Berman AJ).
207․I also note that the observations of the Court of Appeal in Henderson CA at [32]:
[Section] 20(1)(b) of the Crimes Act is only addressed to release under recognisance after the imposition of a sentence of full-time imprisonment. This requirement does not apply where an alternative to full-time imprisonment is imposed, such as an ICO. In the Australian Capital Territory, a federal offender may be sentenced to an ICO pursuant to s 20AB of the Crimes Act, which picks up and applies s 11 of the Crimes (Sentencing) Act 2005 (ACT). Unlike s 20, s 20AB of the Crimes Act does not require that exceptional circumstances be demonstrated before an ICO may be imposed.
208․In this case, I find that exceptional circumstances have been established such that a fully suspended sentence is appropriate. This is primarily because of the assistance the offender has given law enforcement authorities both with respect to her own guilt and the co-offender’s guilt. It bears repeating that it is the policy of the criminal law which has found statutory expression in both Commonwealth and Territory legislation to encourage such assistance: see CMB v Attorney-General (NSW) [2015] HCA 9; 256 CLR 346 at [40] (French CJ and Gageler J), [72] (Kiefel, Bell and Keane JJ) (CMB). The rationale is clear. It is that often the only source of information about crime comes from other offenders. It is in the public interest to encourage offenders to supply such information to police. Thus, the primary factor in relation to exceptional circumstances in this case is the assistance to law enforcement by this offender. Additionally, the offender did spend some time in custody albeit that it was a short period as referred to at [135]. Finally, the offender has been on the equivalent of a Griffiths-type remand for over a year and has not been convicted of further offences. On the facts of this case, it is appropriate therefore to fully suspend the sentence from today.
Recognisance Release Order and Statutory Constraints
209․The Court may not impose a single non-parole period or recognizance release order in respect of both Commonwealth and ACT terms of imprisonment: Commonwealth Crimes Act s 19AJ.
210․There is “no judicially determined norm or starting point (whether expressed as a percentage of the head sentence, or otherwise) for the period of imprisonment that a federal offender should actually serve in prison before release on a recognisance release order”: Hili at [13]. The minimum term that be served should be determined by reference to Pt 1B of the Commonwealth Crimes Act and the principles in Power v The Queen (1974) 131 CLR 623, Deakin v The Queen (1984) 58 ALJR 367; 11 A Crim R 88, and Bugmy v The Queen (1990) 169 CLR 525: Hili at [44]. These cases require an assessment of the minimum time that justice requires the person to serve having regard to all the circumstances of the offence.
211․I will impose a recognisance release order for the offender. Therefore, I am required to attach certain conditions to the order as per s 20(1B) of the Commonwealth Crimes Act. The conditions I impose will be that the offender:
(a)Accept the supervision of a probation officer appointed by the Commissioner of ACT Corrective Services or their delegate;
(b)Obey all reasonable directions of the probation officer;
(c)Not travel interstate or overseas without the written permission of the probation officer; and
(d)Undertake such treatment or rehabilitation programs that the probation officer reasonably directs.
212․I must direct when the Commonwealth sentence commences under s 19(3) of the Commonwealth Crimes Act if I am sentencing the offender to a term of imprisonment for Commonwealth and Territory offences in one sitting. Under the section, my direction must also be so that:
(a)No federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences; and
(b)If a non-parole period applies in respect of a Territory sentence, the first federal sentence to commence after the end of that non-parole period commences immediately after the end of that period.
213․I indicate that applying the principles of totality in respect of the three related counts, it is appropriate for the ACT possession sentence be served fully concurrent with the Commonwealth possession sentence. The possession offences are inextricably intertwined on the facts. It is, further, appropriate for there to be a limited amount of concurrency concerning the Commonwealth transmission sentence as that is an offence over and above possession.
214․As has been noted in Edwin v The Queen [2014] ACTCA 47 at [11], when sentencing in the context of both Commonwealth and Territory offences, “a sentencing judge must accommodate the two distinct regimes”. Necessarily, the structure of the sentences imposed must accord with these two regimes.
215․As I previously observed in DPP v Manns (No 2) [2023] ACTSC 405 at [232], Mossop J summarised the interplay between s 19 of the Commonwealth Crimes Act and sentencing for territory offences in Morrison v Maher [2021] ACTSC 312 at [49] (Morrison).
216․His Honour repeated similar observations when he later resentenced the appellant in Morrison in Morrison v Maher (No 2) [2022] ACTSC 63 (at [176]):
Section 19(3) of the [Commonwealth Crimes Act] requires that when both Territory and Commonwealth offences are dealt with [in] the same sitting, no federal sentence may commence later than the end of the last Territory sentence and if a federal sentence commences after the end of a Territory non-parole period, then it do so immediately following the end of that period. The Commonwealth offence which carries a custodial sentence is Charge 27… This is most easily dealt with by imposing the sentences for that series of offending near the start, notwithstanding that this will be out of the chronological order of offending.
(emphasis added)
Sentence
217․In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of each individual offence and subjective matters generally pertaining to the offender.
218․In exercise of her duty to assist the Court to avoid an appealable error, counsel for the prosecution indicated that I would not fall into error should I impose a fully suspended sentence: see CMB at [38] (French CJ and Gageler J), [64] (Kiefel, Bell and Keane JJ).
219․The appropriate sentence for the ACT offence of possessing child exploitation material (Count 1, CC2022/3169) is 8 months’ imprisonment, reduced to 4 months and 23 days on account of the plea of guilty and assistance to authorities. This sentence is to commence today, 21 May 2024 and expiring on 13 October 2024. The sentence will be fully suspended pursuant to s 12 of the Sentencing Act, subject to the offender entering into a good behaviour order for a period of 18 months and to comply with the core good behaviour obligations.
220․The appropriate sentences for the Commonwealth offences are as follows:
(a)On the charge of using a carriage service to possess child abuse material (Count 2, CC2022/3170), the offender is sentenced to a period of 15 months’ imprisonment, reduced to 9 months on account of the offender’s plea and assistance to authorities. This sentence is to commence on 21 May 2024 and expiring on 20 February 2025.
(b)For using a carriage service to transmit child abuse material (Count 3, CC2022/5824), the offender is sentenced to 12 months’ imprisonment, reduced to 7 months and 6 days’ imprisonment on account of the offender’s plea and assistance to authorities. This sentence is to commence on 15 January 2025 and expiring on 20 August 2025.
(c)The offender is to be released on the commencement of the sentence imposed for Count 2 (CC2022/3170), namely today on 21 May 2024, upon entering into a recognisance, with security of $500 without payment today and without surety, to be of good behaviour for a period of 18 months from that date and to appear and receive sentence if so called upon at any time in respect of any breach within the relevant period.
(d)Pursuant to s 20(1B) of the Commonwealth Crimes Act, the conditions of the recognisance will be that the offender:
1․ Accept the supervision of a probation officer appointed by the Commissioner of ACT Corrective Services or their delegate;
2․ Obey all reasonable directions of the probation officer;
3․ Not travel interstate or overseas without the written permission of the probation officer; and
4․ Undertake such treatment or rehabilitation programs that the probation officer reasonably directs.
Orders
221․For these reasons, I make the following orders:
(1)On the charge of possessing child exploitation material (CC2022/3169).
(a)the offender is sentenced to 8 months’ imprisonment, reduced to 4 months and 23 days on account of the plea of guilty and assistance to authorities. This sentence is to commence today, 21 May 2024 and expiring on 13 October 2024.
(b)The sentence will be fully suspended pursuant to s 12 of the Crimes (Sentencing) Act 2005 (ACT), subject to the offender entering into a good behaviour order for a period of 18 months and to comply with the core good behaviour obligations.
(2)On the Commonwealth charges:
(a)On the charge of using a carriage service to possess child abuse material (CC2022/3170), the offender is sentenced to 15 months’ imprisonment, reduced to 9 months on account of the offender’s plea and assistance to authorities. This sentence is to commence on 21 May 2024 and expiring on 20 February 2025.
(b)On the charge of using a carriage service to transmit child abuse material (CC2022/5824), the offender is sentenced to 12 months’ imprisonment, reduced to 7 months and 6 days on account of the offender’s plea and assistance to authorities. This sentence is to commence on 15 January 2025 and expiring on 20 August 2025.
(c)The offender is to be released on the commencement of the sentence imposed for CC2022/3170, namely on 21 May 2024, upon entering into a recognisance, with security of $500 without payment today and without surety, to be of good behaviour for a period of 18 months from that date and to appear and receive sentence if so called upon at any time in respect of any breach within the relevant period.
(d)Pursuant to s 20(1B) of the Crimes Act 1914 (Cth), the conditions of the recognisance will be that the offender:
(i) Accept the supervision of a probation officer appointed by the Commissioner of ACT Corrective Services or their delegate;
(ii) Obey all reasonable directions of the probation officer;
(iii) Not travel interstate or overseas without the written permission of the probation officer; and
(iv) Undertake such treatment or rehabilitation programs that the probation officer reasonably directs.
| I certify that the preceding two-hundred and twenty-one [221] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson Associate: Date: 10 October 2024 |
2
63
6