R v Dennison

[2011] NSWCCA 114

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	R v Dennison [2011] NSWCCA 114
Hearing dates:	4 May 2011
Decision date:	23 May 2011
Before:	Whealy JA at [1] McCallum J at [2] Schmidt J at [3]
Decision:	Appeal dismissed.
Catchwords:	CRIMINAL LAW - appeal against sentence - whether insufficient weight given to the offence taken into account pursuant to s 16BA of Crimes Act 1914 (Cth) - whether insufficient weight was given to specific deterrence - whether insufficient weight was given to the maximum penalty for offences - whether the finding that substantial concurrence of the sentences imposed for the offences of Using a Carriage Service to Make Available Child Pornography and Dealing in the Proceeds of Crime was necessary to avoid prospect of double punishment - whether sentence was manifestly inadequate - appeal dismissed COSTS - application under either ss 6A or 6C of the Suitors' Fund Act 1951 - certificate refused
Legislation Cited:	Crimes Act 1900 Criminal Code Act 1995 (Cth) Crimes (Sentencing Procedure) Act 1999 Crimes Act 1914 (Cth) Suitors' Fund Act 1951
Cases Cited:	Re Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure Act 1999 (NSW) (No 1 of 2002) [2002] NSWCCA 518; (2010) 56 NSWLR 146 Boreland v Docker (No 2) [2007] NSWCA 275 Director of Public Prosecutions (NSW) v Moradian [2010] NSWCCA 27 R v Huang; R v Siu [2007] NSWCCA 259 Lowndes v R [1999] HCA 29; (1999) 195 CLR 665 Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243 Nahlous v R [2010] NSWCCA 58; (2010) 201 A Crim R 150 Pearce v R [1998] HCA 57; (1998) 194 CLR 610 R v Elphick [2010] NSWCCA 112 R v Hilton [2005] NSWCCA 317; (2005) 157 A Crim R 504 R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29 R v Gilfillan [2003] NSWCCA 102; (2003) 139 A Crim R 460 R v Lilley [2000] NSWCCA 57; (2000) 111 A Crim R 468 R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 R v Mara [2009] QCA 208; (2009) 196 A Crim R 506 R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481 R v Oliver [2003] 1 Cr App 28 R v Pack [1999] NSWCCA 316 Whiley v R [2010] NSWCCA 53
Category:	Principal judgment
Parties:	Regina (Appellant) Paul Randal Dennison (Respondent)
Representation:	Mr WG Roser SC (Appellant) Mr Ertunc Ozen (Respondent) Commonwealth Director of Public Prosecutions (Appellant) Benjamin & Leonardo Criminal Defence Lawyers (Respondent)
File Number(s):	2009/234684 and 2009/60173
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2010-05-07 00:00:00 Before: Blackmore DCJ File Number(s): 2009/00060173 and 2009/00234684

Judgment

1. WHEALY JA: I agree with Schmidt J.

1. McCALLUM J: I agree with Schmidt J. The sentences imposed were undoubtedly lenient. Nonetheless, for the reasons given by her Honour, I am not persuaded that they entailed error.

1. SCHMIDT J : This is a Crown appeal against sentence in relation to five offences to which the respondent pleaded guilty in April 2010. The respondent was sentenced by his Honour Judge Blackmore as follows:

• Possession of child pornography - s 91H(2) of the Crimes Act 1900 (NSW) - maximum penalty 10 years imprisonment - sentenced to 6 months imprisonment to commence on 23 April 2010 and to expire on 22 October 2010.
• Using a carriage service to access child pornography between 24 March and 13 June 2009 - s 474.19(1)(a)(i) of the Criminal Code 1995 (Cth) - maximum penalty 10 years imprisonment - sentenced to 9 months imprisonment to commence on 23 August 2010 and to expire on 22 May 2011.
• Using a carriage service to make available child pornography between 9 March and 28 May 2009 - s 474.19(1)(a)(iv) of the of the Criminal Code 1995 (Cth) - maximum penalty 10 years imprisonment - sentenced to 15 months imprisonment to commence on 23 May 2011 and to expire on 22 August 2012 - ('the ff model website offence').
• Using a carriage service to make available child pornography pursuant to s 474.19(1)(a)(iv) of the Criminal Code 1995 (Cth) - maximum penalty 10 years imprisonment - sentenced to 15 months imprisonment to commence on 23 November 2011 and to expire on 22 February 2013 - ('the fame girls web site offence').
• Dealing in the proceeds of crime pursuit to s 400.4(1) of the Criminal Code 1995 (Cth) - maximum penalty 20 years imprisonment and/or 1200 penalty units- sentenced to 15 months imprisonment to commence on 23 May 2012 and to expire on 22 August 2013.

1. In the possession of child pornography offence, his Honour was asked to take another such offence into account pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999. In the access child pornography offence, his Honour was asked to take another such offence into account pursuant to s 16BA of the Crimes Act 1914 (Cth).

1. The total sentence imposed was 3 years, 4 months, to commence on 23 April 2010 and to expire on 22 August 2013. His Honour also directed that the respondent be released after serving 2 years imprisonment, conditional upon entering a recognisance in the sum of $5000 to be of good behaviour for a period of 3 years and that he accept the supervision and guidance of the NSW Probation and Parole Service and obey all reasonable directions.

1. The Crown appealed the sentence on the following grounds:

"1. His Honour erred in giving insufficient weight to the offences to be taken into account pursuant to section s 16BA of Crimes Act 1914 (Cth);

2. His Honour erred in not giving any weight to specific deterrence in the sentence imposed;

3. His Honour erred in giving insufficient weight to the maximum penalty for the offences;

4. His Honour erred in finding that substantial concurrence of the sentences imposed for the offences of Using a Carriage Service to Make Available Child Pornography and Dealing in the Proceeds of Crime, was necessary to avoid the prospect of double punishment, and

5. The sentence was manifestly inadequate."

Facts

1. The statement of facts in evidence showed that the respondent became the subject of an Australian Federal Police investigation, while operating a website, 'the ff models website', to which he offered paid membership.

1. There were approximately 60,000 images of three Russian girls, Sandra, Elia and Virginia who were aged between 13 and 16 years, available to be viewed by members on that website. In most images, the girls were provocatively clothed in lingerie and other underwear and were posed in a sexual manner. The images were strongly indicative of a sexual interest in underage girls. The 'ff model website offence' related to the respondent's activities between 9 March and 28 May 2009 in relation to this site, where 2840 images classified as child pornography, depicting 'nudity or sexual posing with no sexual activity', were available.

1. The respondent was also involved in the operation of another member website, the 'fame-girls website'. On this site approximately 20,000 images of the three girls, Sandra, Elia and Virginia were offered to members. They appeared to be aged between approximately 15 and 17 years. The 'fame girls website' offence related to the respondent's activities between 24 March and 13 June 2009 in relation to this site, where 2,217 images classified as child pornography, also depicting 'nudity or sexual posing with no sexual activity', were available. The respondent was also detected participating in online chat on other websites and emails, in which the three girls, their ages and their whereabouts, amongst other things, were discussed.

1. The access child pornography offence concerned the respondent downloading 13 images of child pornography using an internet account which he maintained called the 'pumpkins' account. These images depict another girl, aged approximately 14 years and a male of about 20 years, engaging in oral and vaginal sexual acts. The access child pornography offence taken into account under s 16BA of the Crimes Act (Cth), concerned the respondent using the pumpkins account to access two images of the girl Sandra, when aged about 10 years. In one image, Sandra is depicted naked with her back to the camera and in another, she is topless.

1. A search warrant was executed at the respondent's residential premises. A computer, hard drives and various business records, as well as compact discs and dvds containing material classified as child pornography were seized. The possession of child pornography offence related to various material then seized, which included:

• 4374 erotic images with no sexual activity, primarily of girls aged between 8 to 14 years, who were either nude or posed erotically while clothed.
• images depicting sexual activity between a girl between 8 to 10 years, while being masturbated with a syringe placed into her vagina, by another young child.
• images depicting non penetrative sexual activity between adults and children, including a female baby's genitals being spread by an adult and a naked child between 8 and 10 years holding an adult male's erect penis.
• 9 images depicting oral, digital and penile penetrative sexual activity between adults and children.

1. The possession of child pornography offence taken into account under s 32 of the Crimes (Sentencing Procedures) Act related to one written story stored on the computer seized; 30 video files containing 2482 images depicting erotic posing by Ella, Sandra and Virginia, when they were aged between 13 and 15 years, with no sexual activity; five other videos depicting sexual activity between children, or solo masturbation by children, and two images depicting non-penetrative sexual activities between adults and children aged between 12 and 14 years.

1. The dealing with proceeds of crime offence related to 550 payments received by the respondent by way of an online Paypal billing account between October 2005 and May 2006 from subscribers to the websites. These transactions equalled approximately $A610,958.39, with further direct deposits and telegraphic transfers of $A16,758.66, as well as cash, cheque and money orders of $A18,575,73, also being received.

1. Information obtained in the investigation had been provided to Russian authorities to assist with their enquiries. This had resulted in the identification and location of Sandra, but not Elia or Virginia.

1. Also in evidence was the transcript of the respondent's record of interview by police, after arrest, where he gave an extensive account of his activities. He did not give evidence at the sentencing hearing. The agreed statement noted that during the recorded interview the respondent stated:

• "he was responsible for allocating passwords and usernames to the websites and wwwJame-girls.com(sic);
• he received 10% of the subscription fee and transferred the remainder of the money to persons known as 'Vlad' and 'Boris' via overseas accounts;
• he has been responsible for writing sexually explicit captions over images of young female children;
• he believed other subscribers received sexual gratification over images contained on the websites vvww.ff-models.com and
• he didn't' believe the images on the websites and were child pornography;
• he was responsible for receiving parcels that subscribers wanted to send to the girls who appeared in the images on the websites and which he would then on-forward to them at an address that only he had knowledge of; and
• he had on several occasions sent parcels on his own behalf to the girls who appeared in the images on the websites and

Other evidence

1. A sexual assessment report prepared by a counsellor, Morgan Hayward, was in evidence. There it was noted that the respondent was aged 47 years, single with no children and not involved in any relationship. He operated the website business and also had employment in the printing industry. He had no criminal record.

1. Mr Hayward's report recounted that the respondent suffered from chronic asthma and airway limitations. He had a history of drug and alcohol abuse. Mr Hayward reported the respondent's confusion that his actions were interpreted, so as to result in criminal charges. He believed that Sandra needed monetary help to further her education and her standard of living in Russia and believed that promoting her as a model, would do that. He did not believe her to be in physical danger, or in an abusive relationship with the overseas promoters of the two websites. He had been smitten by Sandra, but during treatment had come to recognise that he had been misled by the Russian promoters, who had abused his altruistic intentions. He accepted that Sandra had been preyed upon by them.

1. The respondent claimed to condemn the physical and sexual abuse of children and to find such behaviour abhorrent. He claimed not to have understood that the promotion of child pornography could take many forms and that fantasies might incite child sexual interest and lead to child sexual abuse.

1. Mr Hayward was of the view that the respondent's desire to engage sexually with children for his sexual gratification was not a threat, so long as he received therapy to gain control of manipulative behaviour by others. His prognosis not to engage in child pornography seemed favourable in the short term, as he moved towards acceptance of his misbehaviour. Long term this depended on his willingness to continue with rehabilitation. Various means of rehabilitation were proposed by Mr Hayward, who also noted that the respondent feared for his physical and psychological safety, if imprisoned.

1. Reports of psychiatrists, Dr Glass and Dr Murugesan, were also in evidence. The respondent's problems with identity and drug and alcohol abuse were noted. A fantasy life of drinking and viewing images of young girls and writing comments and captions for images was described. Physical contact was denied. The respondent's realization that his behaviour was criminal, leading to remorse, was discussed. Chronic dysthymic disorder, in the form of chronic low grade depression, was diagnosed, but no personality disorder was found. An isolated life, with the respondent's drinking impaired judgment was discussed. A prison sentence was thought to have a deleterious effect on the respondent's fragile mental state.

The Crown's case below

1. The Crown emphasised the need for general and specific deterrence to be taken into account in sentencing, notwithstanding the pleas which had been entered, given the serious nature of the child pornography offences charged.

1. The factors discussed in R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29, were submitted to be relevant to be considered in determining the sentences imposed. It was argued that the offender was the main principal in the commission of the offences, the other principals being based in Russia. He was the essential link with the subscribers to the website and not only accessed images himself, but made them available to others.

1. The children depicted were submitted to be the victims of the offences. Their images could be swapped, traded and sold potentially in perpetuity in the internet child pornography trade.

1. The proceeds of crime offence was also submitted to be serious, given the amount of money involved and the respondent's receipt, control and distribution of the money generated.

1. The respondent's early pleas were acknowledged as entitling him to an element of leniency, indicative of his willingness to facilitate the course of justice, but the strength of the Crown case was submitted to reflect that the pleas were also a recognition of the inevitable. The respondent's personal circumstances were addressed and it was submitted that an aggravating factor was that he had acted with other offenders. The need to consider whether the sentences should be served concurrently, or cumulatively was accepted.

1. As to the sentencing range, it was argued that full time imprisonment was required. A number of authorities were provided to assist in the determination of the range.

The respondent's case

1. The respondent conceded that the offences to which he had entered a plea were serious and would result in a custodial sentence. Bail was not sought and it was accepted that general deterrence was an important aspect of the sentencing exercise. It was also accepted that prior good character could not make much difference to the sentence to be imposed, given the serious nature of the offences. It was argued, however, that account would be taken of the evidence as to the reasons for the respondent's involvement, which had resulted from his infatuation with the girl Sandra. It was also submitted that he was involved in the websites as a cog, or agent in the enterprise, rather than as a principal.

1. It was submitted to be relevant that only 5% of the 90,000 images in total were classified as child pornography, with none depicting nudity. The images fell at the bottom of the internationally recognised COPINE scale, as did the vast majority of the pornographic images in the respondent's possession. Most depicted children in their late teens.

1. That the respondent had profited from the operation of the website was accepted to be relevant to sentence. It was argued, however, that it was also relevant that the income derived had never been hidden, supportive of the existence of the respondent's belief that he was not involved in a criminal enterprise. There had been no attempt to evade tax.

1. Considerable emphasis was placed on the early plea, which was undiminished, it was argued, by any suggestion that the Crown case was a strong one. Account would also be taken of the respondent's full co-operation on arrest and that he had made admissions on significant matters, contrary to his interest.

The sentencing remarks

1. His Honour gave a summary of the agreed facts, before turning to consider the sentences to be imposed. He took the view that the facts disclosed a series of distinct offences, which did not all relate to one episode of criminal conduct. He also took the view that the activities involved in running the business and distributing the images available on the websites, needed to be considered separately from the respondent's other activities.

The 'fame girl' and 'ff model' website offences

1. His Honour first dealt with the two charges relating to the respondent's 'involvement with the running of the business or the distribution of images of young girls'. He noted that the respondent had told police that he did not believe that the images were child pornography, but he understood that people who viewed the images were obtaining sexual gratification from such viewing.

1. His Honour observed that 'as child pornography, the material is a bit unusual'. This was because the girls were clothed and the photos did not depict explicit sexual activity and mostly did not depict any sexual pose. His Honour noted that of approximately 80,000 images, over 4,000 were classified as child pornography. In his view, only about 5% fell within the more usual child pornography which came before the Court and the rest fell within 'a shadowy area between child pornography and voyeurism'.

1. His Honour noted that the respondent was aware that people were paying significant sums to view the photos; that they were doing so for sexual gratification; that he had a degree of control over the web pages and that he had a responsibility to ensure the material shown was not child pornography.

1. His Honour then turned to consider the objective seriousness of the offences and the offender's role in them. He referred to the categorisation of child pornography in R v Oliver [2003] 1 Cr App R 28 and that adopted in the COPINE project, concluding that all of the 4,000 images fell into the least serious categories. In R v Oliver , that scale was described as:

"(1) images depicting erotic posing with no sexual activity;

(2) sexual activity between children, or solo masturbation by a child;

(3) non-penetrative sexual activity between adults and children;

(4) penetrative sexual activity between children and adults;

(5) sadism or bestiality."

1. After referring to the respondent's role in distributing the material, his Honour concluded that the whole venture could not have proceeded without his involvement, or that of someone like him. He had protected the Russians involved. His Honour also noted the respondent's knowledge that people were paying for the images for sexual gratification and that he had a degree of control over the web pages.

1. His Honour declined to describe the respondent as a principal or agent, but turned to consider what he actually did; namely, having a significant involvement in the distribution of child pornography on the internet, for significant amounts of money, in order to protect the identity of those controlling the young girls whose images were depicted.

1. His Honour regarded the respondent's view that he was assisting the girls to be self delusional. They were plainly being exploited. Their situation and circumstances were unknown, but the consequences of their exploitation was not, with their images distributed worldwide, available to be viewed where ever the internet operated. His Honour also noted that the respondent's activities were easier to detect than peer to peer transmission on the internet. That similar or worse material could be accessed peer to peer, did not, however, affect the Court discouraging the respondent's profit from the exploitation of children.

1. The payments which he received were found to be an aggravating factor. While the way in which the business was conducted made the respondent easy to detect, still the offence was committed for financial gain, which encouraged the commission of offences. Account had to be taken of the substantial reward achieved for the respondent's efforts, but his Honour took the view that care had to be taken, to ensure there was no double counting in relation to those payments, in respect of the money laundering charge.

1. The offences were considered to be serious, given the respondent's significant role. His Honour concluded:

"In my view, his role involved the exploitation of the victims, that is the girls depicted on the Internet. Looking purely at the images themselves, I accept that these images are objectively at the bottom of the range. The fact that the offender received financial gain for depicting the images, aggravates the seriousness of the offence as earlier discussed. Overall, the offences are not ones at the bottom of the range and I would estimate that they fall somewhere between the bottom and middle range of objective seriousness."

1. His Honour took the view that general deterrence was of paramount consideration in this type of offence, which was rarely detected. General deterrence required that a penalty of full-time custody be imposed.

The access child pornography offence

1. His Honour then turned to consider the respondent's own access of a relatively small number of child pornography images, of other children. He referred to the matters which required consideration in determining the objective seriousness of such an offence, discussed in R v Gent .

1. His Honour took the view that the images fell into category 4 of the Oliver scale. Nevertheless, his Honour concluded that the offence objectively fell above the bottom of the range, due to the gravity of the sexual activity, but well below the middle range of objective seriousness.

The possession of child pornography offence

1. His Honour noted that this offence related to over 4,000 images found in the respondent's possession, most of which fell into the lowest category referred to in Oliver , with some 13 images falling into the more serious categories. His Honour concluded that 'objectively this offence is well above the bottom of the range but does not reach the middle of the range of objective seriousness due to the low categorisation of most of the images.'

The proceeds of crime offence

1. His Honour concluded that while it carried the longest maximum penalty, the question of double punishment had to be avoided, the sums received having been taken into account in the transmitting child pornography offences.

1. His Honour referred to the respondent's account in the record of interview, that he kept 10% of money deposited and 30% of cash and sent the rest to Russia, after meeting expenses. Thereby his Honour noted, he had concealed the involvement of the Russian men in this operation. His Honour distinguished Nahlous v R [2010] NSWCCA 58; (2010) 201 A Crim R 150, noting that receipt of money was not an element of the using a carriage service offences. Nevertheless, he took the view that substantial concurrence in the penalties imposed was required, in order to avoid double punishment.

1. His Honour then turned to consider subjective matters, which it is not necessary to outline in detail. He came to the view that the evidence showed that the respondent was aware of the sexual interest of subscribers in the children depicted and had similar feelings himself. Nevertheless, he accepted that he was a victim of sorts of the Russians, who had latched on his vulnerabilities. He also took the view that the respondent was playing on others' vulnerabilities, in order to make money from what he described as a 'despicable trade', knowing that what he was doing was criminally wrong. His Honour concluded that the circumstances did not remove the need for the sentence to reflect specific deterrence. He concluded, however, that a non-parole period should be set at the bottom of the usual range.

1. His Honour noted that he had considered s 16A of the Crimes Act (Cth) and s 21A of the Crimes (Sentencing Procedure) Act and then imposed the sentences appealed from, noting in relation to the possessing child pornography offence and the access child pornography offence that he had taken the additional offences into account. The sentences imposed were partially accumulated.

Ground 1 - His Honour erred in giving insufficient weight to the offence to be taken into account under s16BA of the Crimes Act 1914 (Cth)

1. The Crown's case was that the sentence of 9 months' imprisonment imposed for the principal offence under s 479.19(1)(a)(i) of the Criminal Code Act , use of carriage service to access child pornography, after taking into account the further offence, was manifestly inadequate, having in mind the serious criminality involved in the principal offence. The sentence imposed also reflected that no, or insufficient account was taken of the other offence to be taken into account under s 16BA of the Crimes Act (Cth) .

1. The respondent's case was that his Honour had not fallen into such error. His Honour's sentencing remarks showed that he had not overlooked any relevant factor and had arrived at a sentence which properly reflected the purpose for which the system established by s 16BA was devised, as discussed by Spigelman CJ in Re Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act (NSW) 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 at [66].

1. The principle to be applied is that explained by Spigelman CJ who there observed:

"39 The sentencing court is sentencing only for the "principal offence". It is no part of the task of the sentencing court to determine appropriate sentences for offences listed on a Form 1 or to determine the overall sentence that would be appropriate for all the offences and then apply a "discount" for the use of the procedure. This is not sentencing for the principal offence.

40 In my opinion, it is pertinent to identify the elements to be considered in determining the sentence for the primary offence upon which the commission of other offences, for which no conviction is being recorded, may impinge. The case law has identified a number of distinct and sometimes overlapping purposes to be served by sentencing. In my opinion, not all these purposes are relevant to the process of taking other offences into account, when sentencing for a particular offence, i.e. the primary offence.

41 In Barton at [64], in a passage subsequently referred to in R v AEM Snr at [81] and R v Perese at [81], I made some observations which I repeat.

42 The position, in my opinion, is that, although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences which there are offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s 33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another.

43 I did not intend these observations to be exhaustive of the elements upon which the fact of other offences may impinge. However, no additional elements for which that could be so have been identified in submissions to this Court. The important point is that the focus throughout must be on sentencing for the primary offence.

44 The manner and degree to which the Form 1 offences can impinge upon elements relevant to sentencing for the principal offence will depend on a range of other factors pertinent to those elements and the weight to be given to them in the overall sentencing task. For that reason it will rarely be appropriate for a sentencing judge to attempt to quantify the effect on the sentence of taking into account Form 1 offences. (See R v Kay at [69].)

45 The suggestion in the Attorney's proposed guideline that the increase in penalty should normally be specified may have been appropriate if the Attorney's basic approach were to be adopted, i.e. that in some senses sentences were being imposed for the Form 1 offences. Once that approach is rejected, specification of quantum is inappropriate.

66 The effect of inclusion on a Form 1 is to give the offences so included a significantly lower salience in the sentencing process. There will be an obvious advantage, and hence a greater incentive to admit guilt, where the Form 1 procedure is employed. In my opinion, the issues that arise are broadly equivalent to those involved in the Crown deciding not to prosecute for the full range of offences open to it or to accept a plea to a lesser charge, albeit in the context of multiple, and often divergent, criminal offences."

1. It is apparent from his Honour's sentencing remarks that he did not overlook the offence to be taken into account under s 16BA. At various points, his Honour referred to the two other offences which had to be taken into account in relation to the State possession of child pornography offence and the Commonwealth accessing child pornography offence, including when he finally turned to the sentence.

1. The access child pornography offence concerned the respondent downloading 13 images of child pornography using the 'pumpkins' account. The images depict a fourth unidentified girl, aged approximately 14 years and a male of about 20 years, engaging in oral and vaginal sexual acts. The access child pornography offence taken into account under s 16BA concerned the respondent using the 'pumpkins' account to access two images of the girl Sandra, when aged about ten years. In one image Sandra is depicted naked with her back to the camera and in another, she is topless.

1. His Honour took the view that the 13 images with which the principal offence was concerned fell into category 4 on the Oliver scale. There was no complaint about that finding, nor as to the description of the offence, by reference to the discussion in R v Gent . His Honour's conclusion that the offence objectively fell above the bottom of the range, due to the objective gravity of the sexual activity involved, but well below the mid-range of objective seriousness, was however, submitted to involve error.

1. In R v Gent , the necessity to consider not only the age of the children and the gravity of the sexual activity depicted, but also the number of images involved, whether they were obtained for the purpose of sale and whether the offender would profit from the offence, was discussed. In this case there was no evidence that these 13 images were obtained for sale, or that the respondent had profited from this offence, as he had in relation to the other offences involved in his operation of the two websites.

1. The sentence imposed was 9 months imprisonment, his Honour noting that in coming to that conclusion, he had also taken into account the additional charge. His Honour was criticised for not having referred to the detail of the second offence which had to be taken into account. He had referred to that offence earlier in his sentencing remarks, where he noted that the facts of that offence were outlined in the agreed facts, which he did not repeat.

1. That offence concerned accessing two images of the girl Sandra, when aged about ten years. In one image, Sandra was depicted naked with her back to the camera and in another, she is topless. In my assessment it must be accepted that this offence was less serious than the principal offence, given the number of images involved and what was depicted. There was also no evidence that these two images were obtained for sale, or that the respondent had profited from this offence. True it is that the respondent's possession of these images revealed the extent and nature of his obsession with the girl Sandra. Nevertheless, what his Honour was obliged to assess was the nature and seriousness of this offence and what impact that should have on the sentence imposed in respect of the principal offence.

1. As the respondent submitted, there was no necessity for his Honour to quantify the additional penalty imposed in respect of the additional offence taken into account. The sentence imposed for the principal offence had to reflect the criminality involved in both offences, as the facts disclosed. On those facts, a higher penalty than that which would have otherwise been appropriate for the principal offence, had to be imposed, but in my assessment, not substantially higher.

1. That his Honour erred in the account taken of the additional offence under s 16BA was in my view not established. The offence was clearly not overlooked. It is also necessary to consider whether the sentence imposed was manifestly inadequate, having in mind what had to be taken into account. I will deal separately with that question.

Ground 2 - His Honour erred in not giving weight to specific deterrence in the sentence imposed

Ground 3 - His Honour erred in giving insufficient weight to the maximum penalty for the offences

Ground 4 - His Honour erred in finding that substantial concurrence of the sentences imposed for the offences of Using a Carriage Service to Make Available Child Pornography and Dealing in the Proceeds of Crime, was necessary to avoid the prospect of double punishment

Ground 5 - the sentence was manifestly inadequate.

1. It is convenient to deal with these grounds of appeal together, as the parties addressed them.

1. The maximum penalties for the access and use of carriage service offences and for the possession offence were each 10 years' imprisonment. That for the proceeds of crime offence was 20 years. Against those maximum penalties, his Honour had to impose sentences proportionate to the gravity of each offence, having regard to the evidence as to both objective and subjective matters, paying attention to the need for specific and general deterrence and applying the principle of totality. As discussed in R v MMK [2006] NSWCCA 272; (2006) 164 A Crim R 481:

"12 In R v Holder (1983) 3 NSWLR 245, Street CJ described the principle as follows: (at 260)

" ... The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing Judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing Judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. ... " "

1. The application of the principle must not result in the suggestion that there has been a discount for multiple offending (see R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [18]). There must be effective punishment for a person who has committed a series of discrete offences.

1. In reaching his conclusions, his Honour also took into account the pleas entered at the earliest opportunity, observing that this may have been little more than a recognition of the inevitable, but he accepted that it had facilitated justice. His Honour also considered the need for general and specific deterrence and the need to avoid double punishment in respect of the sums earned in relation to the operation of the websites, both an aggravating consideration in the case of two of the offences and itself the subject of a separate charge.

1. His Honour imposed individual sentences, also dealing with questions of the accumulation and concurrency of the sentences imposed. The final result was a total sentence for the five offences, including the two for which two further Form offences were taken into consideration, of 3 years, 4 months.

1. The Crown's case was that the result of his Honour's approach was that inadequate weight had been given to the need for specific deterrence; insufficient attention had been paid to the maximum penalties imposed for the offences; and that the sentences imposed were manifestly inadequate.

1. The Crown submitted that the maximum penalties reflected the Parliament's view of the seriousness of child pornography offences using the internet. Recognition that the problem of child pornography is Australia wide and indeed, international had been repeatedly discussed in jurisdictions around Australia and overseas. The paramount importance of deterrence in the imposition of sentences for such offences had also been widely and repeatedly discussed. His Honour erred in the view he took of the subjective evidence, so that specific deterrence was not given adequate weight. While his Honour referred to the principles he was bound to apply, the sentences imposed revealed that they had not been given effect, with the result that they were manifestly inadequate.

1. The respondent's case was that there had been no error of fact or principle in his Honour's approach or conclusions. His Honour had taken the view that deterrence was of paramount importance and had given effect to that view, while also paying appropriate regard to what the respondent had actually done and to his subjective circumstances, as he was bound to do. The sentences had not been made wholly concurrent, but had given effect to his Honour's view that distinct offences had been committed, but double counting had to be avoided.

1. In my view it must be accepted that the sentences imposed were relatively lenient. Nevertheless, even if the members of this Bench would have imposed higher sentences, the question of whether the sentences are manifestly inadequate must be answered in the negative, if they fall within the available range (see Lowndes v R [1999] HCA 29; (1999) 195 CLR 665 at 671-2). For reasons which I will explain, it seems to me that while they lie at the very bottom of that range, that they are manifestly inadequate was not established. Nor can it be concluded that insufficient weight was given to specific deterrence, or that his Honour failed to have proper regard to the maximum penalties for the offences.

1. In advancing its case, reference was made by the Crown to what was said in various Second Reading speeches, when these offences were dealt with by the State and Federal Parliaments, as well as a number of intermediate appellate court decisions in various Australian jurisdictions, which evidenced a concern about the deterrent effect of sentences imposed in prosecutions of child pornography offences pursued under both State and Federal criminal laws.

1. In R v Mara [2009] QCA 208; (2009) 196 A Crim R 506 it was observed, for example by the Chief Justice of the Supreme Court of Queensland at [17] - [21]:

"17 In the oft quoted words of Kennedy J in R v Jones ((1999) 108 A Crim R 50 at [9]) -

"The production of child pornography for dissemination involves the exploitation and corruption of children who are incapable of protecting themselves. The collection of such material is likely to encourage those who are actively involved in corrupting the children involved in the sexual activities depicted and who recruit and use those children for the purpose of recording and distributing the results. The offence of possessing child pornography cannot be characterised as a victimless crime. The children, in the end, are the victims."

18 The provisions of the Commonwealth and State Criminal Codes breached by the applicant's offending conduct are directed at different aspects of the distribution and possession of child pornography. The Commonwealth provision focuses on the use of the internet to access and transmit child exploitation images, while the State legislation is concerned with the possession, preservation and sharing of such images. The maximum penalty for the Commonwealth offences was 10 years, imprisonment and that for the State offence 20 years.

19 The sentencing judge observed perceptively -

"The widespread use of the internet makes available to the international community of people like you an unprecedented volume of pornography in many forms that involve the exploitation of innocent children including defenceless and helpless infants to feed the craving for personal sexual gratification of a paedophilic nature, and to enable people such as you to interact together in the celebration of your cruel, unnatural and disgusting perversion.

The level of sophistication and attention to security in these offences demonstrate the lengths to which sexual predators such as you and the other faceless and largely undetected participants in this criminal enterprise are prepared to go."

20 Denunciation and deterrence (both general and personal) are particularly powerful considerations in sentencing for child pornography offences. ( R v Carson [2008] QCA 268 at [32]; R v Plunkett [2006] QCA 182 at [6]; R v Wharley [2007] QCA 295 at [17].)

21 In R v Gent , ((2005) 162 A Crim R 29 at [99].) a decision of the NSW Court of Criminal Appeal, Johnson J (with whom the other members of the Court agreed) identified the range of factors relevant to the objective seriousness of an offence of possession or importation of child pornography as including -

(a) the nature and content of the pornographic material - including the age of the children and the gravity of the sexual activity portrayed;

(b) the number of images or items of material possessed by the offender;

(c) whether the possession or importation is for the purpose of sale or further distribution;

(d) whether the offender will profit from the offence.

His Honour continued -

"It might be worth noting, however, that the number of images as such may not be the real point. In a case of possession of child pornography for personal use only, the significance of quantity lies more in the number of different children who are depicted and thereby victimised."

Those considerations are also apt in sentencing for the offences committed by the applicant. (See James v The Queen [2009] NSWCCA 62 at [10] - [11].)"

1. More recently in Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243, Hulme J (with whom Macfarlan JA and Johnson J agreed) discussed recent authorities which have dealt with matters relevant to the assessment of the objective seriousness of offences which relate to child pornography: R v Gent , Whiley v R [2010] NSWCCA 53 , R v Oliver and R v Mara . At [94] - [95] his Honour concluded:

"94 Drawing primarily from the authorities to which I have referred, the following matters may be relevant to an assessment of the objective seriousness of offences involving the possession or dissemination/transmission of child pornography:

1. Whether actual children were used in the creation of the material.

2. The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed.

3. The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material.

4. The number of images or items of material - in a case of possession, the significance lying more in the number of different children depicted.

5. In a case of possession, the offender's purpose, whether for his/her own use or for sale or dissemination. In this regard, care is needed to avoid any infringement of the principle in The Queen v De Simoni (1981) 147 CLR 383.

6. In a case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted.

7. 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.

8. The proximity of the offender's activities to those responsible for bringing the material into existence.

9. The degree of planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating or transmitting the material.

10. Whether the offender acted alone or in a collaborative network of like-minded persons.

11. Any risk of the material being seen or acquired by vulnerable persons, particularly children.

12. Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted.

13. Any other matter in s 21A(2) or (3) Crimes (Sentencing Procedure) Act (for State offences) or s 16A Crimes Act 1914 (for Commonwealth offences) bearing upon the objective seriousness of the offence.

95 This list of factors is, of course, not closed. Individual cases may always produce further matters relevant to the assessment of their objective seriousness."

1. From his sentencing remarks it is apparent that his Honour paid regard to these matters; that he did not overlook the maximum penalties for the offences and that he took the view that both general and specific deterrence had to feature in the sentences imposed. His Honour also had regard, as he was bound to do, to the evidence as to the respondent's subjective circumstances, relevant to determining the extent of the role which specific deterrence had to play in those sentences.

1. That the respondent was rather delusional in his approach to the criminal enterprise in which he had become involved, must be accepted. He claimed after his arrest that he had no appreciation that the material disseminated on the websites was pornographic, or that he was involved in any crime. That this was truly his belief was supported by the way in which the business was conducted. There was no attempt to hide his activities. Membership to the websites was freely available on payment. Potential members were not screened. The business was operated as any legitimate internet business might be. The respondent disclosed all he earned in his tax returns, some $85,000 out of the over $650,000 revenue generated in the business. The respondent's activities were clearly easily uncovered, once investigated.

1. That the respondent had an unhealthy, indeed criminal interest in the three girls depicted on these websites, was accepted, soon after he was arrested, with the result the pleas which he entered. Given the number and nature of the pornographic images offered on the website and the serious nature of some of the other material which was found in his possession and in respect of which he was then charged, his Honour's view that his pleas reflected an acceptance of the inevitable, may well be understood. Nevertheless, it was not material of that serious kind with which the very vast majority of the pornographic materials which he accessed and distributed on the two websites was concerned. The material which fell at the upper levels of the COPINE scale were not distributed. They were the subject of the possession and access charges.

1. The sentences imposed in Mara and Minehan were relied on by the Crown to establish the manifest inadequacy of the sentences imposed. While we were referred to a plethora of other decided cases, it was accepted that they established no particular sentencing pattern on which the Crown could rely. Nor were the facts of any other particular case submitted to reveal the manifest inadequacy of the sentences here imposed. It is unnecessary to refer further to these cases.

1. So far as the comparisons sought to be drawn with Mara and Minehan are concerned, in my view the facts on which the sentences there imposed rested, are so different that they do not provide any useful basis for comparisons to be drawn.

1. Minehan was concerned with an offender in respect of whom admitted technical errors were made on sentencing, which had the result that an overall sentence of 6 years, 4 months, with a non-parole period of 4 years, was reduced to 5 years, 2 months. Otherwise the sentences were not interfered with on appeal. The defendent was there charged with nine Commonwealth and State child pornography offences, with a further ten offences being taken into account under s 16BA. The offences involved telephone calls with a school boy in which masturbation was discussed; text messages describing sexual attraction to adolescent boys; disseminating child pornography, photographs and videos depicting adolescent and preadolescent males engaging in sexual activity, sometimes with adult males; in one case of a boy aged about 10 years, whose hands and feet were bound by rope behind his back, while an obese middle aged male engaged in sexual intercourse with him; disseminating other videos and still images of naked and partially naked children aged 9 to 14 years, while engaging in oral and anal sexual intercourse; transmission of a graphic pornographic story by email; grooming a person under 16 years for sexual activity; further video and photographic material depicting young males, some under 10 years, engaging in sexual activity; further videos and still images depicting boys aged between 8 and 16 years engaging in various sexual activity. Some 70 movies or videos and 2300 images in all were involved, spanning from the least to the most serious classification on the scale. The offences were found to fall within the mid-range of objective seriousness and the defendant was described as a predator and significant danger to the community.

1. In my view the circumstances of Minehan provide no useful comparators for this case. Clearly the offences which there arose to be considered were more serious than those with which the respondent was charged. Nor do the circumstances dealt with in Mara reveal that the sentences imposed in this case were inadequate.

1. In Mara, the defendant was charged with three Commonwealth and one State offence. He and three others were found to have had the objective of pursuing a common interest in child pornography by the use of internet newsgroups. They screened, tested and subsequently admitted new members to those groups. They and two others comprised the "administrators", who were identified by nicknames and who oversaw the internal workings of the groups (including structure, instructions relating to security and the expectations placed upon members), as well as their evolution. Other members of the group were known as a "trustworthy". None of the group members knew the true identity of any of the other members.

1. The groups traded in a large quantity of child exploitation material, as well as purchasing and commissioning the production of such material, which was posted to the newsgroups as binary files that were unable to be viewed by anyone who did not have a "key". The groups used highly sophisticated techniques to avoid detection, including -

"encryption that required the use of paired encryption keys to view the material and to communicate with other members: the keys were changed regularly (at least 15 times), and involved three different levels of security;

frequently changing nicknames;

changing the newsgroup location (on six occasions);

changing the file extension so as to disguise the nature of the file contents; and

utilising a program written by a group member specifically to automate the file extension change process."

1. The offences concerned some 444,000 images and 1,100 movie/video files of child exploitation material, which had been uploaded and advertised for use by the group. It was noted at [9] that the trial judge found:

"The images overall were primarily of female children from babies to pre-pubescent age. They involved ejaculation, oral sex, vaginal and anal penetration. In one of the images ... there was a female child five to eight years being vaginally and orally penetrated for a period of just under two minutes. There are images of infants being abused by adults in an abominable way. Some of the material that was uncovered in the investigation had been seen before by investigators but there was material that they had never seen before."

1. The sentences originally imposed on counts 1 - 3 were six years' imprisonment with a direction that the offender be released after serving 32 months (ie 45 per cent of the head sentence), upon his giving security by recognizance in the sum of $1,000, conditional that he be of good behaviour for three years and subject to the supervision of a probation officer for 18 months. On count 4, he was sentenced to six months' imprisonment. All the sentences were to be served concurrently.

1. In my view these sentences also shed no light on the adequacy of the sentences imposed in this case, given the very differing factual circumstances which arose to be considered. The offences dealt with in Mara were clearly of a much more serious kind than those arising to be dealt with in this case, even given the more serious pornographic material found in the respondent's possession, which was the subject of the possession and access charges.

1. The sentences imposed in respect of the two using carriage service offences had to reflect the nature of the child pornography distributed, as well as the respondent's role in the website business which he operated together with the Russians, as well as what he gained from his involvement.

1. The Crown argued that his Honour erred in the conclusions he reached, given the nature of the commercial enterprise in which the respondent was engaged. It was particularly argued that his Honour erred in his view that the respondent was a victim of, or vulnerable to, the Russians who supplied the images used on the two websites. The evidence established that he was a principal or significant player in the operation, with the result that specific deterrence had to feature in the sentences imposed. He was the lynchpin of the operation. He committed the offences for his own sexual gratification, as well as substantial financial reward. The respondent profited from the business which he conducted, attracting like minded people to these sites. It followed that specific deterrence had not been given adequate effect by the sentence imposed.

1. I am not able to accept this submission. His Honour's sentencing remarks do not reveal that he misunderstood the evidence. His approach was to sentence the respondent having regard to what he did, rather than by a characterisation of the kind that either the Crown or the respondent invited. He also paid proper regard to the subjective evidence, as well as the aggravating factor that the respondent profited from these offences.

1. As to this, the evidence was that the payments made by users of the two websites was for access to all of the images there available. Only the minority of them, albeit over some 6,000 images, involved child pornography, all at a low level. The respondent received no separate payment when these images were accessed, as opposed to those which did not depict child pornography.

1. The subjective evidence disclosed a belief that the images available on the websites were not child pornography and that there was no criminal activity involved in the operation of the websites; there was no prior criminal record; and an approach to the operation of the business consistent with a belief that there was no criminal activity involved. There was also psychiatric evidence as to the existence of a belief that the respondent was assisting the three girls depicted on the site and of his infatuation with the girl Sandra. This evidence supported the conclusion that the respondent had a complete lack of insight at the time of the offences. Unquestionably, had the respondent operated the business believing that he was engaging in and profiting from a criminal enterprise, objectively these would have been more serious offences.

1. The respondent's early plea reflected an acceptance that his subjective belief was wrong. His Honour clearly accepted the case advanced for the respondent, that while general and specific deterrence had a role to play in the sentences imposed, account had to be taken of the subjective evidence, in determining the extent to which specific deterrence would feature in the sentences imposed.

1. In my view there was no error in that approach. While the result was sentences at the lower end of the available range, that they were manifestly inadequate, was not shown.

1. Nor was error established in relation to the access child pornography offence, which his Honour concluded fell above the bottom of the range, but well below the middle range of objective seriousness. That his Honour took the view that these images fell into category 4 of the Oliver Scale, is not inconsistent with that conclusion. The nature of the images involved was not the only matter necessary to be taken into account in arriving at a conclusion as to the seriousness of the offence. That his Honour also had to take into account the two images of the girl Sandra, which were the subject of the charge which had to be taken into under s 16BA, can lead to no different conclusion, given the nature of that offence. I have already discussed that issue in relation to Ground 1. Nor was his conclusion that the possession offence fell above the bottom of the range, but below the middle shown to reflect error given what was the subject of those offences.

1. In the case of the dealing in proceeds of crime offence, his Honour sentenced the offender, by reference to the evidence of his acts in operating the business, together with the Russians involved, as well as his subjective circumstances. There was no error of principle in the approach adopted. It was consistent with the requirements of 16A of the Crimes Ac t (Cth). Aggravating and mitigating factors were relevant to be taken into account, as were the respondent's subjective circumstances. Nor was any error of fact established. In my view of the evidence, the approach adopted and the sentences which resulted, were open to his Honour.

1. His Honour also considered the question of double counting, as he was obliged to do. That the respondent profited was taken into account as an aggravating factor in the use carriage service offences. His Honour took care to ensure that this was taken into account when sentencing in the proceeds of crime offence. That approach was not inconsistent with the conclusion that the offences to which the pleas had been entered were separate and distinct.

1. As his Honour accepted, when he imposed the sentence for the proceeds of crime offence, he had to ensure that the offence did not go unpunished, but there was a need to avoid double punishment . That was consistent with the approach discussed in Pearce v R [1998] HCA 57; (1998) 194 CLR 610 at 623 (McHugh, Hayne and Callinan JJ):

"To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts."

1. It is not only the commonality of the legal elements of the offences which had to be considered, but also the commonality of the facts and circumstances (see R v Hilton [2005] NSWCCA 317; (2005) 157 A Crim R 504 at [15]). As explained in R v Elphick [2010] NSWCCA 112, when an offender is being punished for more than one offence arising out of the same set of facts, the need to avoid punishing an offender twice does not require that elements which are common to any overlapping offences with which the offender is charged be ignored. Rather, it is necessary to consider, independently, the facts and circumstances relevant to the sentence imposed for the first offence and to sentence accordingly. Then, when turning to deal with the second offence, 'any necessary step in assessment of punishment for that crime to avoid that which would amount to double punishment can be taken' (at [29]). That was the approach which his Honour took.

1. The number of transactions, the period over which they occurred, the amounts involved and what became of the money, were all matters necessary to be taken into account in fixing penalty for the proceeds of crime offence (see R v Huang; R v Siu [2007] NSWCCA 259; (2007) 174 A Crim R 370 at [32] - [36]). These were all matters which his Honour considered in coming to his conclusions on sentence.

1. I am not satisfied that the sentence imposed, albeit in my view also at the lowest end of the range, was shown to be manifestly inadequate. That his Honour erred in the conclusions which he reached, was in my view not established.

1. In my view it follows that the appeal must be dismissed.

The Suitors' Fund Act 1951

1. The appeal was listed for hearing in February 2011. The respondent elected, as he was entitled to do, to be present at the hearing, but through no fault on his part the necessary administrative arrangements were overlooked, with the result that he was not present that day. The hearing was accordingly adjourned, with the result that the respondent incurred additional costs.

1. In the circumstances the respondent made an application for a certificate under either ss 6A or 6C of the Suitors' Fund Act in relation to those costs. The sections provide:

6A Costs of proceedings not completed by reason of death of judge etc

(1) Where on or after the day on which Her Majesty's assent to the Suitors' Fund (Amendment) Act 1959 is signified:

(a) any civil or criminal proceedings are rendered abortive by the death or protracted illness of the judge or magistrate before whom the proceedings were had,

(a1) any civil or criminal proceedings are rendered abortive for the purposes of this paragraph by section 46A (Appeal against damages may be heard by 2 Judges) of the Supreme Court Act 1970 or section 6AA (Appeal against sentence may be heard by 2 judges) of the Criminal Appeal Act 1912, because the judges who heard the proceedings were divided in opinion as to the decision determining the proceedings,

(b) an appeal on a question of law against the conviction of a person (in this section referred to as the appellant) convicted on indictment is upheld and a new trial is ordered, or

(c) the hearing of any civil or criminal proceedings is discontinued and a new trial ordered by the presiding judge or magistrate for a reason not attributable in any way to disagreement on the part of the jury, where the proceedings were with a jury, or to the act, neglect or default, in the case of civil proceedings, of all or of any one or more of the parties thereto or their counsel or attorneys, or, in the case of criminal proceedings, of the accused or the accuser's counsel or attorney, and the presiding judge or magistrate grants a certificate (which certificate the presiding judge or magistrate is hereby authorised to grant):

(i) in the case of civil proceedings-to any party thereto stating the reason why the proceedings were discontinued and a new trial ordered and that the reason was not attributable in any way to disagreement on the part of the jury, where the proceedings were with a jury, or to the act, neglect or default of all or of any one or more of the parties to the proceedings or their counsel or attorneys, or

(ii) in the case of criminal proceedings-to the accused stating the reason why the proceedings were discontinued and a new trial ordered and that the reason was not attributable in any way to disagreement on the part of the jury or to the act, neglect or default of the accused or the accuser's counsel or attorney,

and any party to the civil proceedings or the accused in the criminal proceedings or the appellant, as the case may be, incurs additional costs (in this section referred to as additional costs) by reason of the new trial that is had as a consequence of the proceedings being so rendered abortive or as a consequence of the order for a new trial, as the case may be, then the Director-General may, upon application made in that behalf, authorise the payment from the Fund to the party or the accused or the appellant, as the case may be, of the costs (in this section referred to as original costs), or such part thereof as the Director-General may determine, incurred by the party or the accused or the appellant, as the case may be, in the proceedings before they were so rendered abortive or the conviction was quashed or the hearing of the proceedings was so discontinued, as the case may be.

(1A) Where, in the opinion of the Director-General:

(a) the Director-General would, but for this subsection, not be entitled to authorise payment of an amount to a person under subsection (1) because that person incurred neither original costs nor additional costs by reason only of the fact that that person was a legally assisted person, and

(b) that person would have incurred original costs and additional costs had that person not been a legally assisted person,

subsection (1) shall apply to and in respect of that person as if that person had not been a legally assisted person and as if that person had incurred such original costs and additional costs as the Director-General determines:

Provided that the Director-General may, in lieu of authorising payment under that subsection of an amount to that person, authorise payment of that amount to such person or persons as in the Director-General's opinion is or are entitled to receive payment thereof.

(1B) If an application has been made under subsection (1) in respect of proceedings rendered abortive, or a new trial ordered, after the commencement of the Suitors' Fund (Amendment) Act 1987, the amount payable under that subsection to any one person shall, in respect of that application, not exceed:

(a) $10,000, or

(b) such other amount as may be prescribed (at the time when the proceedings were rendered abortive or the new trial was ordered).

(2) No amount shall be paid from the Fund under this section to:

(a) the Crown,

(b) a corporation that has a paid-up share capital of two hundred thousand dollars or more, or

(c) a corporation that does not have such a paid-up share capital but that, within the meaning of section 50 of the Corporations Act 2001 of the Commonwealth, is related to a body corporate that has such a paid-up share capital, unless the proceedings were rendered abortive or the new trial was ordered (as referred to in subsection (1)) before the commencement of the Legal Assistance and Suitors' Fund (Amendment) Act 1970.

6C Payments not otherwise authorised by this Act

(1) If:

(a) a party to an appeal or other proceedings incurs or is liable to pay costs in the appeal or proceedings,

(b) the party is not otherwise entitled to a payment from the Fund in respect of the costs, and

(c) the Director-General is of the opinion that a payment from the Fund in respect of the costs, although not authorised by section 6, 6A or 6B, would be within the spirit and intent of those sections,

the Director-General may, with the concurrence of the Attorney General, pay from the Fund to the party such amount towards the costs as is assessed by the Director-General having regard to the circumstances of the case.

(2) A payment under this section shall not exceed $10,000."

1. It is apparent from the terms of the sections relied on, that the circumstances which have here arisen are not such that the certificate sought may be provided. As discussed in R v Pack [1999] NSWCCA 316, the circumstances are such that the respondent may fall within the provisions of s 6C of the Act, which is concerned with circumstances where a party is not entitled to a payment from the Fund, but where the costs in question would be within the spirit and intent of ss 6, 6A or 6B of the Suitors' Fund Act . At [10] the Court there observed:

"This Court can make no order under s 6C of the Suitors Fund Act but in our opinion there is merit in the submission that a payment from the Fund would be within the spirit and intent behind s 6A(1)(c) of the Suitors Fund Act ."

1. There may also be merit in the view in this case that a payment from the Fund would be within the spirit and intent of the legislation, in the circumstances which have arisen. That is not a matter on which this Bench is called on to express a conclusion (see R v Lilley [2000] NSWCCA 57; (2000) 111 A Crim R 468 at [34] - [37]; R v Gilfillan [2003] NSWCCA 102; (2003) 139 A Crim R 460 at [87] - [92]; Boreland v Docker (No 2) [2007] NSWCA 275 at [27]; Director of Public Prosecutions v Moradian [2010] NSWCCA 27 at [9]). A certificate under the Act must be refused. The Court has no power in the circumstances which have arisen to order that the respondent be granted a certificate.

Orders

1. I would order that the appeal be dismissed.

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Decision last updated: 23 May 2011