R v Ferns

Case [2024] QCA 262

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ferns [2024] QCA 262

PARTIES:

R
v
FERNS, Jacob Anthony
(applicant)

FILE NO/S:

CA No 245 of 2022
SC No 1493 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 13 October 2022 (Davis J)

DELIVERED ON:

20 December 2024

DELIVERED AT:

Brisbane

HEARING DATE:

21 November 2024

JUDGES:

Mullins P and Boddice JA and Martin SJA

ORDER:

The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to six counts of various child abuse material offences – where the applicant was sentenced to 15 years’ imprisonment for the aggravated transmission offence, involving conduct on three or more occasions and two or more people contrary to s 474.24A of the Criminal Code (Cth), and lesser concurrent periods of imprisonment on each of the remaining counts – where the applicant contends the objective seriousness of the aggravated offence fell towards the lower end of the scale of seriousness for offences of its kind – whether the sentence imposed was manifestly excessive

Harden v R [2024] NSWCCA 184, distinguished
R v Horsfall[2024] QCA 144, distinguished

COUNSEL:

R M O’Gorman KC, with H Rafter, for the applicant
S J Hedge for the respondent

SOLICITORS:

George Criminal Lawyers for the applicant
Director of Public Prosecutions (Commonwealth) for the respondent

  1. MULLINS P:  I agree with Boddice JA.

  2. BODDICE JA:  On 8 March 2022, the applicant pleaded guilty to six offences contrary to the Criminal Code (Cth), being one count of using a carriage service to transmit child abuse material contrary to s 474.22(1) (count 1), one count of using a carriage service to access child abuse material contrary to s 474.22(1) (count 2), one count of using a carriage service to solicit child abuse material contrary to s 474.22(1) (count 3), one count of aggravated offence – offence involving conduct on three or more occasions and two or more people contrary to s 474.24A (count 4) and two counts of possess or control child abuse material obtained or accessed using a carriage service contrary to s 474.22A (counts 5 and 6).

  3. On 13 October 2022, the applicant was sentenced to 15 years’ imprisonment, commencing on 28 September 2022, on count 4 and lesser, concurrent periods of imprisonment on each of the remaining counts. A single non-parole period of 8 years was fixed, pursuant to s 19AB of the Crimes Act 1914.

  4. The applicant seeks leave to appeal his sentence.  If leave be given, the applicant relies on one ground, that the sentence was manifestly excessive.

    Facts

  5. On 17 December 2019, Australian Federal Police received a report relating to the applicant’s use of an email address to upload 17 files of child abuse material onto a Dropbox platform.  That platform was a file hosting service that provided…

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Details
AGLC
R v Ferns [2024] QCA 262
Case
[2024] QCA 262
Decision Date

CaseChat Overview and Summary

In the case of R v Ferns, the applicant seeks leave to appeal against his sentence, contending that it was manifestly excessive. The applicant pleaded guilty to six counts of child abuse material offences and was sentenced to 15 years' imprisonment for the aggravated transmission offence, with concurrent lesser sentences for the other counts. The central legal issue was whether the sentence imposed was manifestly excessive. The court reviewed the sentencing principles, including the objective seriousness of the offence, the need for general deterrence, and the mitigating factors such as the applicant's guilty pleas, cooperation, and remorse.

The court found that the sentencing judge had carefully applied the relevant sentencing principles, appropriately balancing the need for deterrence and denunciation against the mitigating factors. The court emphasised that general deterrence is paramount in cases involving child abuse material, given the prevalence and harm associated with such offences. The court also noted that the applicant's lack of criminal history and steps towards rehabilitation, while mitigating factors, did not outweigh the need for a significant sentence. The court concluded that the sentences imposed were within the sound exercise of the sentencing discretion and were not manifestly excessive.

Accordingly, the application for leave to appeal against sentence was refused. The court's reasoning underscores the importance of considering the objective seriousness of child abuse material offences and the need for general deterrence, while also recognising the mitigating factors in individual cases.

Orders

Orders of the court

The application for leave to appeal against sentence is refused.

Background

Background to the litigation

The applicant seeks leave to appeal his sentence. If leave be given, the applicant relies on one ground, that the sentence was manifestly excessive.Facts On 17 December 2019, Australian Federal Police received a report relating to the applicant’s use of an email address to upload 17 files of child abuse material onto a Dropbox platform. That platform was a file hosting service that provided cloud storage. Users, through a cloud-based system, can upload, transfer and share files and folders using computer and mobile devices. The Dropbox records revealed that the applicant’s email address had logged onto the platform on 19 March 2019, and on 10 October 2019, using different Internet Protocol addresses on each occasion. Telephone records revealed that the user of those addresses was associated with the applicant and, in particular, the email address that had been used to upload the child abuse material onto the Dropbox platform. On 30 September 2020, federal police executed a search warrant at the applicant’s address. Police seized a laptop and an iPhone. The applicant identified each as his and provided passcodes for both devices. An analysis of the applicant’s iPhone revealed he had been using a messaging application to transmit, solicit and access child abuse material and to engage in discussions describing the sexual abuse of children, with other like-minded people. Users of that messaging app were able to maintain a level of anonymity, as they were not required to provide their telephone number when registering an account. The analysis revealed that there had been 21 conversations which the applicant had participated in or was a member of, where files were sent and/or received that met the definitions of child abuse material (counts 1, 2, 3 and 4). There were two users the applicant individually messaged with and engaged in a three-way message conversation with at the same time, during which the applicant transmitted child abuse material on more than three occasions (count 4). The applicant kept possession of the child abuse material he transmitted and was sent by other users, during these conversations and was in possession of them at the time of the execution of the search warrant (count 5). An analysis of the applicant’s laptop located both video and still images of child abuse material saved, to which he had accessed or obtained over the internet from September 2019 to 4 September 2020 (count 6).Counts The agreed statement of facts summarised the factual basis for each count. Count 1 concerned the transmission by the applicant of 52 child abuse material files, in text conversations with 17 other users. The child abuse material files transmitted by the applicant, contained images of pre-pubescent male and female children being orally and anally raped by adult males, as well as touching the genitalia of adult males. The children ranged from babies to 10 years of age. The applicant also had engaged in sexualised text conversations with the users about the sexual abuse of children. During these conversations, the applicant discussed his sexual interest in babies, including newborns and his purported sexual abuse of a 3 year old male when the applicant was 14 years of age. The conversations were graphic in their description of his age preferences, his desire to rape and molest babies and toddlers and of the acts he had engaged in with the 3 year old. The applicant described acts of violent penetration, including a graphically expressed desire to make a parent rape their own child.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

To the contrary, the sentencing judge carefully applied the relevant sentencing principles, recognising that notwithstanding the applicant’s lack of criminal history and steps at rehabilitation, deterrence and denunciation must loom large.Conclusion A consideration of the nature, circumstances and objective seriousness of the applicant’s offending, together with the mitigating factors of the applicant’s pleas of guilty, co-operation, remorse, prejudicial history and positive steps towards rehabilitation, support a conclusion that the sentences imposed on the applicant fell well within a sound exercise of the sentencing discretion. The sentences imposed were not manifestly excessive.Orders I would order:1.That the application for leave to appeal against sentence be refused. MARTIN SJA: I agree with Boddice JA and the order proposed by his Honour.

Ratio Decidendi

Legal Principle Established

After referring to the requirements in s 19, sub-ss 5, 6 and 7 of the Crimes Act, the sentencing judge recorded that he intended to impose a sentence on count 4 which reflected the seriousness of all offending. The totality of the offending could easily be accommodated within the available head sentence for that count, namely 30 years and the offending for all counts could sensibly and practically be regarded as one series of events.Consideration In order to succeed on a ground of manifest excess, an applicant must establish that the sentence is unreasonable or plainly unjust. It is not sufficient for an applicant to merely establish that the sentence was different or even markedly different from sentences imposed in other cases. Appellate intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, or where the sentence imposed is so far outside the range of sentences available, that there must have been error.[1][1]Hili v The Queen (2010) 242 CLR 520 at [59]. Where, as here, there is a statutory minimum sentence, it is a yardstick to be used in the exercise of the sentencing discretion to represent the sentence for the least worst category of case.[2] Relevant considerations, when assessing objective seriousness of offences involving child abuse material, were summarised in Commonwealth Director of Public Prosecutions v CCQ:[3][2]Hurt v The King [2024] HCA 8, [32]–[35]; [88]–[89].[3][2021] QCA 4 at [8]–[9].“[8] Before this Court there was no dispute as to the general principles for sentencing in cases involving child pornography or child exploitation material. Drawing on what was said by this Court in R v Howe and by the New South Wales Court of Criminal Appeal in Lyons v R, those principles include:(a)general deterrence is the primary sentencing consideration for offending involving child abuse material given the prevalence and ready availability of pornography involving children, particularly on the internet, and the need to protect children from sexual abuse;(b)there is a paramount public interest in promoting the protection of children as possession of child pornography is not a victimless crime, the possession of child abuse material creates a market for the continued corruption and exploitation of children, and children are sexually abused in order to supply the market;(c)the fact that an offender has no relevant prior convictions carries less weight in sentencing for child pornography offences;(d)offending involving child abuse material occurs on an international level, and the advent of the internet as a means to access child abuse material means both that such offending is becoming increasingly prevalent, and that it is difficult to detect, given the anonymity the internet can provide;(e)the fact that an offender did not pay to access a child abuse material website, or was not involved in the distribution or sale of child abuse material, does not mitigate the offending;(f)the subjective circumstances of an offender must not overshadow the objective gravity of the offences; and(g)in a case of dissemination, the number of persons to whom the material is distributed is relevant.[9]There are a number of relevant considerations when assessing the objective seriousness of offences involving child abuse material, including:(a)the nature and content of the material, particularly the age of the children and the gravity of the sexual activity depicted, including the extent of any cruelty or physical harm to the children that may be discernible from the material;(b)the number of items or images possessed, accessed or transmitted;(c)whether the material is for the purpose of sale or further distribution;(d)in a case of distribution or transmission, the number of persons to whom the material was transmitted;(e)whether any payment or other material benefit (including the exchange of child pornography material) was made or received for the acquisition or transmission of the child pornography material;(f)whether actual children were involved in the creation of the material, and the number of children depicted and thereby victimised;(g)the length of time over which the offending occurred; and(h)the degree of planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating or transmitting the material.” (footnotes omitted).