R v Degioannis
[2019] ACTSC 47
•1 March 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Degioannis |
Citation: | [2019] ACTSC 47 |
Hearing Dates: | 19 October 2018; 13 December 2018 |
DecisionDate: | 1 March 2019 |
Before: | Loukas-Karlsson J |
Decision: | See [80]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – maintaining a sexual relationship with a young person – using a child for the production of child exploitation material – possession of child exploitation material - failing to report personal details as a registrable offender – guilty plea – breach of Good Behaviour Order – suspended sentence imposed – significant criminal history |
Legislation Cited: | Crimes Act 1900 (ACT) ss 54, 56, 64, 65 Crimes (Sentence Administration) Act 2005 (ACT) s 110 Crimes (Sentencing Procedure) Act 1999 (NSW) s 22 |
Cases Cited: | Alvares v R; Farache v R [2011] NSWCCA 33; 209 A Crim R 297 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Zdravkovic v The Queen [2016] ACTCA 53 |
Parties: | The Queen (Crown) Shannon David Degioannis (Offender) |
Representation: | Counsel Ms R Christensen (Crown) Mr J Sabarwhal (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) ACT Legal Aid (Offender) | |
File Number: | SCC 82 of 2018 |
LOUKAS-KARLSSON J
Introduction
On 10 July 2018, Shannon David Degioannis (the offender) pleaded guilty to the following offences:
(a)Maintaining a sexual relationship with a young person between 26 June 2017 and 28 September 2017 contrary to s 56(1) of the Crimes Act 1900 (ACT) (Crimes Act) (maximum penalty 25 years of imprisonment) (Count 1);
(b)Using a child for the production of child exploitation material between 26 June 2017 and 23 July 2017 contrary to s 64(3) of the Crimes Act (maximum penalty 10 years of imprisonment, a fine of $150,000 or both (Count 2);
(c)Possessing child exploitation material on 28 September 2017 contrary to s 65 of the Crimes Act (maximum penalty 7 years of imprisonment, a fine of $105,000, or both) (Count 3); and
(d)Failing to report a change of personal details between 26 June 2017 and 10 September 2017 as a registrable offender contrary to the s 54(1) Crimes (Child Sex Offenders) Act 2005 (ACT) (Crimes (Child Sex Offenders) Act) (maximum penalty 5 years of imprisonment, a fine of $75,000, or both) (Count 4).
Agreed Facts
The agreed facts are set out in the Statement of Facts, which were tendered as part of the Crown Tender Bundle. The facts in short summary follow.
Between 26 June and 28 September 2017, the offender had a sexual relationship with the victim who was aged 15 years at the time. During this period, the victim lived with the offender and they engaged in sexual intercourse. The offender admitted having sexual intercourse with the victim, and videos of the offender and victim having sexual intercourse were located on the offender’s phone and computer. Other child exploitation material was found on the offender’s computer. During this period the offender was a registrable offender under the Crimes (Child Sex Offenders) Act and failed to report that he had had unsupervised contact with the victim.
Included in the agreed facts is the following in relation to Count 1:
On 12 January 2018 police spoke to the victim who said the following:
· she had been in a sexual relationship with the offender during 2017 (count 1)
· the victim had told the offender she was 15 years old
· the offender was aware she was 15 during the sexual relationship
· the victim had been living at the offender’s house for a couple of months prior to September 2017
· the victim cannot recall any dates because she was using drugs during this time
· the offender had told the victim to tell his friends that she was 19 years old
…
· she used ice and heroin regularly with the offender
· on one occasion she was unable to find her vein and the offender injected drugs into her, telling her that it was “Bling” (methamphetamine).
· the victim and the offender had sexual intercourse after he had injected her.
In relation to Count 2, a laptop computer and other electronic devices were seized on the arrest of the offender, containing video files of sexual intercourse between the offender and the victim. As set out in the agreed statement of facts, the videos include the victim “crying and upset”, the offender being “verbally aggressive and angry” and the offender stating “that he has spent ‘three grand’ on drugs on the victim in the last two and a half weeks”.
The agreed statement of facts identifies that the material relating to Count 3 has been categorised using the Australian National Victim Image Library (ANVIL) scale of categories. Categories 1-6 are as follows:
(a)Category 1: Depictions of children with no sexual activity;
(b)Category 2: Non-penetrative sexual activity between children; or solo masturbation by a child;
(c)Category 3: Non -penetrative sexual activity between adult(s) and child(ren);
(d)Category 4: Penetrative sexual activity between children or adult(s) and child(ren);
(e)Category 5: Sadism, humiliation or bestiality; and
(f)Category 6: Animated or virtual depictions of children engaged in activity covered by categories CAT 1 to CAT 5.
In accordance with those categories, the offending can be summarised as follows
| Category | Number of Files |
| 1 | 124 images and 1 video file |
| 2 | 6 images and 7 video files |
| 3 | 1 video file |
| 4 | 2 images and 18 video files |
| 5 | 0 |
| 6 | 0 |
| TOTAL | 132 images and 27 video files |
In relation to Count 4, the offender was having regular contact with the victim since June 2017. Being a registrable child sex offender, the offender was required to report to the Chief Police Officer within 24 hours of the third day (whether or not consecutive) of having unsupervised contact with a child.
Objective Seriousness
The offence of maintaining a sexual relationship has been discussed by Burns J in R v DU [2018] ACTSC 281 (DU) at [67]:
The offence under s 56 was not created as an aggravated form of sexual assault, carrying a harsher penalty than the specific offences which the evidence shows the accused engaged in. To the extent that s 56 carries a heavier penalty than other offences under Part 3 of the Crimes Act, the reason is twofold. First, the sexual act or acts relied upon as constituting the sexual relationship for the purposes of s 56 may vary in nature, from sexual assault in the first degree carrying a maximum penalty of 20 years’ imprisonment to offences carrying lesser penalties. Secondly, proof of an offence under s 56 requires the jury to be satisfied that at least two sexual acts which would constitute offences under Part 3 were committed. The maximum penalty of 25 years’ imprisonment is therefore an acknowledgement of the variety and number of sexual offences that may be revealed in a trial for an offence under s 56.
10. Queensland has an offence of a similar nature. In Queensland, the maximum penalty provided for the offence is life imprisonment. In R v SAG [2004] QCA 286; 147 A Crim R 301 (SAG), Jerrard JA, with whom Atkinson and Philippides JJ agreed, set out a number of factors relevant to objective seriousness. That case is referred to here in that context, not as a comparable case due to the difference in maximum penalty; in the ACT, the maximum penalty is 25 years of imprisonment.
11. In SAG, Jerrard JA set out matters that are relevant to “substantially increasing a sentence for an offence of maintaining a sexual relationship” at [19], including the following:
·a young age of the child when the relationship thereafter maintained first began;
·a lengthy period for which that relationship continued;
·if penile rape occurred during the course of that relationship;
·if there was unlawful carnal knowledge of the victim;
·if so, whether that was over a prolonged period;
·if the victim bore a child to the offender;
·if there had been a parental or protective relationship;
·if the offender was being dealt with for offences against more than one child victim;
·if there had been actual physical violence used by the offender; and if not whether there was evidence of emotional blackmail or other manipulation of the victims.
12. Broadly, the prosecution submitted that Count 1 involved multiple acts of sexual intercourse in the course of a ‘relationship’ involving a vulnerable girl in the context of providing her with drugs. The offender video recorded sexual activity, which constitutes the offence within Count 2 .The prosecution submitted that the “brutality” of the ‘relationship’, as set out in the descriptions of the video material in the agreed facts, should be taken into account when considering the objective seriousness of the offence.
13. The use of the term ‘relationship’ in the context of this offence can be distinguished from the term ‘relationship’ as considered recently by the Court of Appeal in R v Summerfield [2018] ACTCA 20 at [60] in which it was held that “the use of the word “relationship” to refer in any way to sexual activity between an adult and a child is therefore best avoided”. Here it is a reference to the term used in the offence provision.
14. In considering the objective seriousness of child exploitation offences, the Court in R v De Leeuw [2015] NSWCCA 183 (De Leeuw) at [72], cited in R v Arthur [2017] ACTSC 23 (Arthur) at [17], set out the following principles:
The objective seriousness of the offending is ordinarily determined by reference to the following factors:
1.the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;
2.the number of items or images possessed;
3.whether the material is for the purpose of sale or further distribution;
4.whether the offender will profit from the offence;
5.in the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised;
6.the length of time for which the pornographic material was possessed: R v Jongsma at 400 [28]; R v Gent [2005] NSWCCA 370; 162 A Crim R 29 at 49 [99]; DPP (Cth) v D’Alessandro at 483-484 [21]; DPP (Cth) v Guest at [25].
15. In relation to Count 3, the prosecution conceded that there is not a significant amount of images when considered in comparison to other offences of this type, but submitted that the content of the material is a of a high objective seriousness, including young children involved in sexual activity.
16. In relation to Count 4, the prosecution submitted that the offending was a more serious example than other offences of this type, as the offender in this case failed to report his contact with a child with whom he was engaged in a sexual relationship and was residing with him.
17. Overall, the prosecution submitted that the offending was at a high level of objective seriousness.
18. Counsel for the offender submitted that the offending was toward the mid-range for offences of this type, and submitted that the victim was 15 at the time of the offences, making the offence less objectively serious than if the victim were younger.
19. It is important to deal with the objective seriousness of each count individually rather than globally.
20. In my view, taking into account the relevant authorities and the submissions of the prosecution and counsel for the offender, Count 1 is above mid-range objective seriousness. Counts 2, 3, and 4 are mid-range when viewed as individual counts.
21. Nevertheless, it must be stated that references to low, mid-range and high range are unlikely to be helpful in this jurisdiction. As has previously been expressed in this jurisdiction, it is preferable for a sentencing judge to confine themselves to identifying features of the case that inform the objective seriousness of the case: R v Toumo’ua [2017] ACTCA 9; 265 A Crim R 499 (Toumo’ua).
22. Regardless of the description, mid-range or otherwise, these were all self-evidently very serious offences having regard to the facts, circumstances and nature of the offences as outlined in the agreed facts. In particular, Count 1 included the provision of illegal drugs to the victim, and this is an aggravating factor in the circumstances of this case.
Conditional Liberty
23. The offending before the court amounts to a breach of a good behaviour order imposed with a suspended sentence by Elkaim J: see Degioannis v Boxx [2017] ACTSC 7. His Honour ordered as follows at [29]:
(i) The appeal is allowed.
(ii) In lieu of the sentence imposed by the Magistrate, in relation to the offence of threat to kill (CC15/10381), I sentence the appellant to a term of imprisonment of 22 months to commence on 31 October 2015 and expire on the 30 August 2017.
(iii) The period commencing 31 October 2015 and expiring 28 February 2017 is to be served by way of full-time imprisonment. The remaining 6 months of that sentence will be suspended and there will be a Good Behaviour Order for a period of 12 months commencing on 28 February 2017.
(iv) The Good Behaviour Order is subject to the core obligations under the Crimes (Sentence Administration) Act.
24. Section 110(2) of the Crimes (Sentence Administration) Act 2005 (ACT) requires that I cancel the good behaviour order imposed, and either impose the suspended sentence, or re-sentence the offender.
25. In this case, it will be appropriate to impose the suspended sentence of six months of imprisonment, backdated to commence when the offender was remanded into custody on 29 September 2017.
26. The fact that the offender was on conditional liberty at the time of the offence is an aggravating factor on sentence. I take the conditional liberty into account as an aggravating factor on sentence.
Subjective Circumstances
27. A Pre-Sentence Report (PSR) was prepared for the sentence hearing.
28. The offender is 39 years of age and was born in Canberra where he was raised. In the report, the offender described his childhood as dysfunctional. He reported that he was the victim of verbal and physical abuse by his step-father, which increased upon his separation from his mother. He reported that he was left with his step-father after his mother moved away, and continued to be subject to regular physical disciplinary actions which he claimed his step-father justified due to his Christian beliefs. He reported that he left his step-father’s care at age 17, where he then spent time living on the streets before joining the circus. The offender has no current family support in the community, and reported feeling isolated and lonely. The offender acknowledged that many of his peers were known to the criminal justice system, however, he claimed that he had been trying to avoid all negative associates.
29. The offender reported that he has had three children from two previous relationships, one of whom passed away shortly after birth. He reported that he had contact with his youngest daughter once every three months through supervised visits in custody, and no current contact with his other daughter.
30. The offender reported that he left school after completing year 10. He advised that he held a number of casual jobs since leaving school in the entertainment, automotive and construction industries. He reported that his employment had been irregular due to his mental health and drug use. Prior to his current remand period, the offender was employed in the construction industry for approximately two months.
31. The offender reported that he was residing in an ACT Housing property prior to being remanded. He advised that he was unsure where he would reside when he is released, and that he would start looking at accommodation options once released.
32. The offender reported a history of polysubstance abuse which commenced when he was 17 years old, when he started smoking cannabis, which escalated to daily use of the substance. He advised his drug use then escalated to the intravenous use of methamphetamine and heroin. Prior to being remanded in custody, the offender reported using heroin, methamphetamine, cocaine, cannabis and Valium on a regular basis.
33. The author of the PSR refers to a letter from ACT Health dated 23 July 2018, outlining that the offender had been diagnosed with Antisocial Personality Disorder, Substance Use Disorder, Adjustment Disorder and Dissocial Personality Disorder in 2014. The offender presented with no signs of a major mental illness when assessed by the mental health team when remanded into custody on 29 September 2017. The offender self-referred to the mental health team in February 2018 due to low mood, feeling emotional and wanting anti-depressant medication. The offender engaged well with mental health services and his file was closed in March 2018.
34. In summary, the PSR notes that the offender is of high risk of general reoffending, and that the offender would need to engage in interventions in relation to his accommodation, offending behaviours, illicit substance use, mental health, and limited pro-social support. The offender was assessed as being of moderate/high risk of sexual reoffending, and the PSR recommends that the offender be assessed and if found suitable engage and complete the ACT Corrective Services’ Adult Sex Offender Program.
Remorse
35. The PSR reported that the offender did not attempt to justify his actions and was able to show victim empathy. The offender reportedly acknowledged that despite being told by police that the victim was underage, he continued to maintain a sexual relationship with her, stating that he had no self-control and enjoyed feeling loved by the victim. He reported that he did not use illicit substances as an excuse for his behaviour, and acknowledged his offending behaviours and was accepting of the consequences of his actions.
36. The prosecution submitted that there was “no genuine demonstrated remorse”.
37. The Courts have stated on many occasions that statements made by an offender which are not supported by the offender giving sworn evidence should be treated with considerable caution: see Butters v R [2010] NSWCCA 1 (Butters) at [18]; Fusimalohi v The Queen [2012] ACTCA 49 at [8] per Burns and Lander JJ; Alvares v R; Farache v R [2011] NSWCCA 33; 209 A Crim R 297 at [44]; Mun v R [2015] NSWCCA 234 (Mun) at [36] ; R v Mumberson [2011] NSWCCA 54 at [38]. Courts do not simply disregard evidence of remorse if the offender does not go into the witness box and give evidence. It is, however, relevant to the weight of the evidence: Butters at [18]; Mun at [37]; Van Zwam v R [2017] NSWCCA 127 at [6], [110]. These cases can be contrasted with Imbornone vR [2017] NSWCCA 144 and R v Harrison [2002] NSWCCA 79; 121 A Crim R 380, where the sentencing judge, in each case, was not in error in rejecting the offender’s self-serving untested statements as evidence of remorse. Accordingly I do not ascribe significant weight to the remorse expressed.
Criminal History
38. The offender has an extensive criminal history in the ACT, NSW and Victoria, which commenced when the offender was a juvenile. The offenders’ criminal history contains a number of minor driving, property and drug related offences. The criminal history indicates that the offender has struggled to comply with bail conditions and good behaviour obligations in the past.
39. Relevant to the offences before me, the offender was sentenced by Higgins CJ in 2009 to a term of 3 years and 6 months of imprisonment for the offence of sexual intercourse with a young person under the age of 16 but above the age of 10. The offending was accompanied by circumstances of aggravation, being the taking of video images of what had been occurring: see R v Minnis (unreported, Supreme Court of the Australian Capital Territory, Higgins CJ, 4 May 2009).
40. Prior to being sentenced for that offence, the offender was also sentenced to a term of imprisonment of three years, with a non-parole period of 18 months, for the offence of aggravated robbery in company.
41. Also relevant to the offences before me is a conviction in the Magistrates Court in 2012 for failing to report a change of personal details as a child sex offender in the ACT. The offender received a fine of $1000 for the offence.
42. The offender was sentenced to 12 months of imprisonment for an offence of making a demand with a threat to endanger health in 2012, which was fully suspended on condition of complying with good behaviour obligations for two years: see R v Degioannis (unreported, Supreme Court of the Australian Capital Territory, Burns J, 16 July 2012). The offender breached those good behaviour obligations in 2014, and was re-sentenced to twelve months of imprisonment, to be suspended after serving seven weeks of imprisonment: see R v Degioannis [2014] ACTSC 240.
43. In 2015, the offender was sentenced in the Magistrates Court to a term of 15 months of imprisonment, suspended after 9 months, for an offence of intentionally wounding.
44. Most recently, in 2016 the offender was sentenced in the Magistrates Court for an offence of recklessly threatening to kill a person, and an offence of stalking. The sentence was reduced on appeal to the Supreme Court to a total term of 22 months of imprisonment, suspended after 16 months (see above at [23]).
45. It is a significant factor on sentence that the offender has prior convictions of a similar nature relating to a child under 16, involving, as here, drug taking and video recording.
Plea of Guilty
46. The offender pleaded guilty to the offences in the Supreme Court on 10 July 2018. The offender had been committed for trial prior to the plea of guilty.
47. Pursuant to s 33(1)(j) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing 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. This provision may be compared with the less prescriptive terms of s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Section 22 is focused on the utilitarian value of pleas of guilty: see Toumo’ua at [41]-[48]; see also Xiao v R [2018] NSWCCA 4 in relation to the utilitarian value of pleas of guilty in commonwealth matters.
48. Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 at [47] noted that the ACT courts have adopted an approach to s 35 discounts that is similar to NSW. However, the ACT statutory scheme does differ from that of NSW: see Toumo’ua at [50].
49. In Cranfield v The Queen [2018] ACTCA 3, the Court of Appeal recently considered the discount applicable where there has been a plea of guilty. It was stated at [37]-[38] that:
37. The discount is a question of discretion. This Court has, however, generally applied predictable discounts in different circumstances. This was said by Murrell CJ in Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80 at [47]:
The bare fact of a plea of guilty entered in the Supreme Court will usually attract a s 35 discount of 10–15%. A common sense approach to “utilitarian value”, the case law and the terms of s 35(2)(b) and s 35(5) of the Sentencing Act all support the importance of the timing of a plea to the assessment of an appropriate discount. A last-minute plea commonly attracts a discount of 10%. A plea entered (or firmly indicated) after committal and before a trial date has been set will usually result in a discount of more than 10% and, commonly, leads to a discount of 15%. Occasionally, a plea in the Supreme Court attracts a higher discount; it is always a matter in the discretion of the sentencing judge.
38. The context and terms of s 35 (2) of the Crimes (Sentencing) Act 2005 (ACT) support the proposition that the primary policy consideration that determines the degree of discount for a plea of guilty is the utilitarian value of the plea, which will be largely determined by the timing of the plea. If offenders are to have the incentive to enter a plea of guilty, carrying with it all of the benefits that flow to victims, witnesses and court resources, they should have a reasonable expectation that a plea will be productive of a meaningful reduction in their sentence. However, a ‘normal’ discount may be inappropriate having regard to the other considerations in s 35 (2) or other circumstances, including those identified by Howie J in Borkowski.
50. The prosecution submitted that the discount for the plea of guilty is not in the range of being at the most early stage. Counsel for the offender submitted that a discount of 15% was appropriate in the circumstances.
51. In my view, taking into account the authorities discussed above, a discount of approximately 15% is appropriate for the plea of guilty.
Time in Custody
52. The offender was remanded in custody on 29 September 2017 for the offences currently before the court. As at 1 March 2019, the offender has spent a total of 518 days in custody.
Cases
53. Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. 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 (Hili).
54. The prosecution referred me to following comparable cases in their submissions in relation to Count 4, which I will take into account as “yardsticks” as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54].
55. In R v Eyles (No 3) [2017] ACTSC 1, the offender, during the process of assisting police in relation to a vehicle collision, disclosed possession of a mobile phone which he had failed to report under his legislative obligations as a registered offender. The offender had no prior convictions for the offence and the Court considered it relevant that the offender was assisting police at the time the conduct was disclosed. It was conceded by the Crown not to be a contumacious example of the offence and further, a “less serious version of the offence” (at [119]). The offender was made subject to a good behaviour order for a period of nine months, to be cumulative with respect to two months only on an order imposed in relation to another offence.
56. In Byrne v Mingay [2014] ACTSC 126; 242 A Crim R 9, the offender was a registrable offender as a result of offences committed in another jurisdiction who failed to report a change in address within 24 hours (instead doing so within two days). At the new address he resided with children. The offender pleaded guilty and was made subject to a good behaviour order for 18 months with probation and counselling conditions. Although the offender had prior offences for similar conduct, the breach was not found to be contumacious or evasive and the history of these offences was not found to be sufficiently serious to warrant a custodial sentence. The appeal on manifest inadequacy of the sentence was rejected.
57. In Weston v Arley [2012] ACTSC 138, the offender was again a registrable offender as a result of offences committed in another jurisdiction who failed to report two consecutive changes of address, occurring within a short period of time, to police. The offender pleaded guilty and was sentenced to a term of imprisonment of 12 months. On appeal, Refshauge ACJ considered the breach to be at the lower range of seriousness, noted that the changes of address were not initiated by the offender and found the breach to be negligent rather than deliberate. However, the offender observed to be a “serial repeat offender” (at [94]) with respect to the reporting regime. Refshauge ACJ held that the 12 month sentence was not manifestly excessive, although the circumstances warranted the imposition of a non-parole period of 10 months and a 12 month period of supervision thereafter.
58. Counsel for the offender submitted that he was content to rely on the authorities provided by the Crown.
Statutory and Other Considerations
Sentencing Act
59. 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.
60. The court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7 of the Sentencing Act. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, rehabilitation and recognition of harm to the victim are important sentencing considerations.
61. The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. In my view there is clearly no alternative in this case.
Maximum Penalty
62. As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.
Totality
63. When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v The Queen [2016] ACTCA 53 at [64] (Zdravkovic).
64. The real question is whether the total sentence is “just and appropriate” to reflect the total criminality: Mill v The Queen (1988) 166 CLR 59; R v Meyboom [2012] ACTCA 48 at [66]; Zdravkovic at [71].
65. It is well to recall what was stated in Mill v The Queen (1988) 166 CLR 59 at 63:
The principle has been stated many times in various forms: ‘when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong.
66. I must evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, determine what, if any, downward adjustment is necessary whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relationship between the totality of the criminality and the totality of the sentences: see R v MMK [2006] NSWCCA 272; 164 A Crim R 481 at [12].
67. I also note the comments of Burns J in DU at [66] relating to double counting in relation to an indictment charging an offence contrary to s 56 and other offences. Here, the offender is to be sentenced for distinct but related offences as submitted by the prosecution.
Childhood Disadvantage
68. Childhood disadvantage does not “diminish with the passage of time and repeat offending” but does not have the same “(mitigatory) relevance for all purposes of punishment”: Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [44].
Sexual Offending and Children
69. In R v Horton-Hegarty [2018] ACTCA 22 (Horton-Hegarty), the Court of Appeal, considering the Victorian Court of Appeal decision in Clarkson v The Queen [2011] VSCA 157; 32 VR 361, quoted the following passage from McLachlin J in R v Hess [1990] 2 SCR 906, where her Honour stated:
I adhere to the view that I expressed in R v Ferguson that the protection of children from the evils of intercourse is multi-faceted and so obvious as to not require formal demonstration. Children merit this protection for three primary reasons. The first is the need to protect them from the consequences of pregnancies with which they are ill‑equipped to deal from the physical, emotional and economic point of view. The second is a need to protect them from the grave physical and emotional harm which may result from sexual intercourse at such an early age. The third is the need to protect them from exploitation by those who might seek to use them for prostitution and related nefarious purposes.
70. As made clear in Horton-Hegarty at [46], the ACT Court of Appeal and other intermediate courts of appeal have “recognised that in relation to sexual offending against children, harm is presumed to occur”.
71. It is recognised by the Court that the offences committed against the victim by the offender will have a significant impact on the victim. Both the short and long-term consequences of being a victim of these offences must be acknowledged.
72. In R v Eisenach [2011] ACTCA 2, the court referred to R v Dent (unreported, NSWCCA, 14 March 1991), where Lee CJ at CL, with whom Gleeson CJ and Loveday J agreed, stated the following in relation to sentencing an offender in respect to sexual offending on children at 6:
One begins with the proposition ... that our community views with great concern the sexual molestation of children by adults and that has been acknowledged by the legislature in providing for greater penalties when the victim is under sixteen...
Child Exploitation Material
73. In De Leeuw at [72], referred to in Arthur at [17], the court set out the following principles in sentencing for child exploitation material:
1. Unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted: R v Jongsma [2004] VSCA 218; 150 A Crim R 386 at 395 [14]; Hill v Western Australia [2009] WASCA 4 at [28]; R v Booth [2009] NSWCCA 89 at [48]; R v Sykes [2009] QCA 267 at [24]; DPP v Groube [2010] VSCA 150 at [24]; DPP (Cth) v D’Alessandro [2010] VSCA 60; 26 VR 477 at 483-4 [21]; Director of Public Prosecutions (Cth) v Guest [2014] VSCA 29 at [23]-[24]; DPP v Smith [2010] VSCA 215 at [23], [26]-[29].
…
3. General deterrence is the primary sentencing consideration for offending involving child pornography: Assheton v R [2002] WASCA 209; 132 A Crim R 237 at 246-247 [35]-[36]; DPP (Cth) v D’Alessandro at 483-484 [21]; Edwards v The Queen [2013] VSCA 188 at [22]; DPP (Cth) v Guest at [25]; Heathcote (A Pseudonym) v R [2014] VSCA 37 at [40]; DPP (Cth) v Zarb [2014] VSCA 347 at [34].
4. Less or limited weight is given to an offender’s prior good character: R v Gent at 44 [65]; DPP (Cth) v D’Alessandro at 483-484 [21]; Mouscas v R [2008] NSWCCA 181 at [37].
5. Offending involving child pornography occurs on an international level and is becoming increasingly prevalent with the advent of the Internet as a means of allowing people to access and obtain child pornography: R v Jones [1999] WASCA 24; 108 A Crim R 50 at 51 [2]; Assheton v R at 246-247 [35]-[36].
6. Offending involving child pornography is difficult to detect given the anonymity provided by the Internet: Mouscas v R at [31]; R v Booth at [29].
7. The possession of child pornography material creates a market for the continued corruption and exploitation of children: R v Coffey [2003] VSCA 155; 6 VR 543 at 552 [30]; R v Cook; Ex parte Director of Public Prosecutions (Cth) [2004] QCA 469 at [21]; R v Jongsma at 395 [14]; Heathcote (A Pseudonym) v R at [40].
8. There is a paramount public interest objective in promoting the protection of children as the possession of child pornography is not a victimless crime - children are sexually abused in order to supply the market: R v Jones at 52 [9]; DPP (Cth) v D’Alessandro at 484 [23].
9. 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: R v Coffey at 552 [30].
74. In R v Asplund; Asplund v R [2010] NSWCCA 316; 216 A Crim R 48, McClellan CJ and Latham and Price JJ considered the sentence imposed on an offender for Commonwealth offences relating to child exploitation material. The Court relevantly stated the following at [50]:
The offences of which the respondent was convicted have the potential to do great damage to young persons in the community. They are hard to detect and general deterrence is of particular significance when sentencing. The need to protect children and young persons from predators using electronic facilities has been recognised by the Parliament in providing for these offences and must be enforced by the courts with sentences of appropriate severity.
Sentence
75. In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above. Both general and specific deterrence are important in this case.
76. The appropriate starting point for the offence of maintaining a sexual relationship with a young person is 9 years of imprisonment, reduced to 7 years and 7 months on account of the discount for the plea of guilty.
77. The appropriate starting point for the offence of using a child aged over 12 years for production of child exploitation material is 3 years of imprisonment, reduced to 2 years 6 months of imprisonment on account of the discount for the plea of guilty.
78. The appropriate starting point for the offence of possessing child exploitation material is 3 years of imprisonment, reduced to 2 years and 6 months of imprisonment on account of the discount for the plea of guilty.
79. The appropriate starting point for the offence of failing to report a change of personal details as a registrable offender is 14 months and 4 days of imprisonment, reduced to 12 months of imprisonment on account of the discount for the plea of guilty.
Order
80. I make the following orders:
(a)I record convictions in relation to the offences;
(b)I cancel the good behaviour order set on 16 January 2017 by Justice Elkaim in relation to CC15/10381;
(c)I impose the suspended sentence of six months of imprisonment in relation to CC15/10381, to be served from 29 September 2017 to 28 March 2018;
(d)In respect of the offence of maintaining a sexual relationship with a young person (XO18/31350), the offender is sentenced to a term of 7 years and 7 months of imprisonment, commencing on 29 September 2017 and ending on 28 April 2025;
(e)In respect of the offence of using a child aged over 12 years for production of child exploitation material (CC18/1319), the offender is sentenced to a term of 2 years and 6 months of imprisonment, commencing on 29 September 2023 and ending on 28 March 2026;
(f)In respect of the offence of possessing child exploitation material (CC17/10776), the offender is sentenced to a term of 2 years 6 months of imprisonment, commencing on 29 September 2024 and ending on 28 March 2027.
(g)In respect of the offence of failing to take all reasonable steps to report a change to his personal details as a registrable offender (CC18/1320), the offender is sentenced to a term of 12 months of imprisonment, commencing on 29 September 2026 and ending on 28 September 2027.
(h)The total term of imprisonment is 10 years.
(i)I set a non-parole period of 7 years, commencing 29 September 2017 and concluding 28 September 2024.
| I certify that the preceding eighty [80] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson. Associate: Date:1 March 2019 |
13