R v Freedman

[2017] NSWCCA 201

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

R v Freedman [2017] NSWCCA 201

Hearing dates:

4 August 2017

Date of orders:

23 August 2017

Decision date:

23 August 2017

Before:

Leeming JA at [1]
Bellew J at [43]
Lonergan J at [133]

Decision:

(1)   The Crown appeal is allowed.

 

(2)   The orders of Judge McLoughlin SC of 10
March 2017 are set aside.

 

(3) In respect of the offence contrary to s. 91H(2) of the Crimes Act 1900 (NSW) the respondent is sentenced to a fixed term of 15 months imprisonment to date from 10 March 2017, and to expire on 9 June 2018.

 

(4) In respect of the offence contrary to s. 474.19(1) of the Criminal Code 1995 (Cth) the respondent is sentenced to 18 months imprisonment commencing on 10 June 2017 and expiring on 9 December 2018.

(5) In respect of the order made in (4) above, and pursuant to s. 19AC(1) of the Crimes Act 1914 (Cth) I direct that at the expiration of a period of 15 months from 10 June 2017, namely on 9 September 2018, the respondent be released upon his own recognisance, without security, in a sum of $500.00, to be of good behaviour for a period of 3 months

Catchwords:

CRIMINAL LAW – Appeal – Crown appeal against asserted manifest inadequacy of sentence – Where respondent was charged with using a carriage service to access child pornography and possessing child abuse material – Where the respondent was sentenced to 15 months imprisonment in respect of the first count and 12 months imprisonment in respect of the second count – Where the sentencing judge ordered that the terms of imprisonment be wholly concurrent and that they each be served by way of an Intensive Correction Order – Whether the sentencing judge erred in failing to accumulate the sentences to any degree – Whether the sentencing judge erred in failing to have proper regard to the need for general deterrence – Whether the sentencing judge erred in giving excessive weight to the respondent’s rehabilitation – Errors established – Sentence manifestly inadequate

  CRIMINAL LAW – Appeal – Practice and procedure – Crown appeal against asserted manifest inadequacy of sentence – Whether the Court’s residual discretion to decline to intervene and re-sentence the respondent should be exercised – Where there was a delay in the provision of the transcript of the proceedings and the remarks of the sentencing judge – Where the Crown did not notify the respondent that an appeal was being considered – Where the notice of appeal was filed approximately two months after the sentence was imposed – Where the notice was not served on the respondent until one week after that – Whether the respondent was unfairly prejudiced by that delay

Legislation Cited:

Child Protection (Offenders Registration) Act 2000 (NSW), ss 9, 16C, 19
Criminal Code 1995 (Cth)
Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Cahyadi v R [2007] NSWCCA 1
CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Director of Public Prosecutions (Cth) v Afford [2017] VSCA 201
Director of Public Prosecutions v D’Alessandro (2010) 26 VR 477; [2010] VSCA
Director of Public Prosecutions (Cth) v Garside [2016] VSCA 74
Director of Public Prosecutions (Cth) v Zarb (2014) 46 VR 832; [2014] VSCA 347
Director of Public Prosecutions v Guest [2014] VSCA 29
Director of Public Prosecutions (Vic) v Karazisis (2010) 31 VR 634; [2010] VSCA 350
Fedele v R [2015] NSWCCA 286
Fitzgerald v R [2015] NSWCCA 266
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
House v The King (1936) 55 CLR 499
Kearsley v R [2017] NSWCCA 28
Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
R v Cidan [2014] NSWCCA 66
R v De Leeuw [2015] NSWCCA 183
R v Dodd (1991) 57 A Crim R 349
R v Glynatsis [2013] NSWCCA 131
R v Jafari [2017] NSWCCA 152
R v Mulligan [2016] NSWCCA 47
R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225
R v Porte [2015] NSWCCA 174
R v Stoupe [2015] NSWCCA 175
R v Turvey [2017] SASCFC 28

Category:

Principal judgment

Parties:

Regina – Appellant
Michael Ian Freedman – Respondent

Representation:

Counsel:
F Veltro – Appellant
A Healey – Respondent

  Solicitors:
C Hyland, Solicitor for Public Prosecutions – Appellant
Fleming and Associates – Respondent

File Number(s):

2016/144077

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

10 March 2017

Before:

His Honour Judge McLoughlin SC

File Number(s):

2016/144077

Judgment

1. LEEMING JA: I have had the advantage of reading the judgment of Bellew J, which fully sets out the charges, the nature of the offending, the proceedings before the sentencing judge and the issues and submissions arising on this Crown appeal, and which enables me to be relatively concise.

2. The sole ground of appeal was that the sentence imposed – two wholly concurrent Intensive Correction Orders for periods of 12 and 15 months commencing 10 March 2017 – was manifestly inadequate for offending contrary to federal law for using a carriage service to access child pornography, and possessing child abuse material contrary to New South Wales law.

3. The offending involved Mr Freedman downloading child abuse and child pornography material over a period exceeding 12 months from the so-called “Dark Net” made accessible via a browser specially installed by him. The quantity of image and video files was substantial. The large majority were located on a portable hard drive, and it was agreed that that drive contained 486-594 images and 241-372 video files which were child pornography and child abuse material. While the number of files was in the hundreds rather than the thousands (as is common in cases of this nature which come before this Court), a relatively large number were in the worst categories. On the portable hard drive, 133 images and 63 video files were classified within the Child Exploitation Tracking System (CETS) as Level 4 involving penetrative sexual activity involving children and other children or adults, and 11 images and 2 video files were CETS Level 5 (sadism, humiliation or bestiality).

4. In order to put those numbers in context, it is important to understand that even images and videos in the lowest category (CETS Level 1) are gravely offensive and depraved. It is as well to repeat what was summarised by Neave and Kyrou JJA in Director of Public Prosecutions (Cth) v Zarb (2014) 46 VR 832; [2014] VSCA 347 at [30]:

“Although level 1 covers images which are not as depraved and abusive as the images allocated to higher levels, some of the images we viewed involved dreadful examples of the abuse of the child victims, who were arranged in sexualised poses displaying their genitalia. The images at the higher end of the CETS Scale depicted horrifying degradation and exploitation of young children.”

This Court reiterated that summary, after seeing examples of all categories of images, in R v Porte [2015] NSWCCA 174 at [77] and [117] (Johnson J, with whom Beech-Jones J and I agreed).

5. In addition, Mr Freedman had, in 2010, pleaded guilty to two counts of aggravated sexual assault upon a child under 16, two counts of aggravated indecent assault upon a child under 16 and 3 counts of committing an act of indecency upon a child under 16. That earlier offending (which had taken place in 2003) had caused him to be placed on the Child Protection Register established under s 19 of the Child Protection (Offenders Registration) Act 2000 (NSW), which in turn entitled police officers to enter onto his premises without notice for the purpose of verifying information including his internet service provider and type of connection to the internet (s 16C read with s 9(1)(n) and (o)). It was agreed that it was in the exercise of those powers that police called upon the offender at home in May 2016.

6. It is true that Mr Freedman co-operated thereafter, giving access to his computers and portable hard drive, pointing out where the offending files were located, and pleaded guilty at the earliest occasion. It is also true that Mr Freedman could point to some subjective matters in his favour (his father died when he was five, and he reported difficulties with his relationship with his mother and stepfather). Yet it was clear at all times that an appropriate exercise of the sentencing power would highly likely involve a full-time custodial sentence.

7. The sentencing hearing proceeded on the basis, in accordance with authority binding in this State, that a full-time custodial sentence would ordinarily be warranted unless Mr Freedman could establish that his was an exceptional case. His counsel’s opening submission was:

“Your Honour, my main submission is, as your Honour would have gathered from the questions to my client is to see this matter as an exceptional one where justice would best be served [by] allowing this man to remain in the community under strict conditions of an Intensive Corrections [Order]”.

8. The Crown had made it clear that, in its view,

“[T]hese are matters that require full time custodial sentences as your Honour has pointed out and how they are to be served I would be asking that he serves it in custody.”

9. Nevertheless, in deference to the application made by Mr Freedman, the sentencing judge directed the preparation of an Intensive Corrections Assessment and stood the matter over until 10 March 2017.

10. The sentencing judge did not approach the matter on the basis that a full-time custodial sentence should be imposed absent exceptional circumstances. His Honour made no reference to, still less a finding of, any exceptional circumstances. Indeed, as Bellew J has observed, there were no findings at all in relation to Mr Freedman’s subjective case. Instead there was merely a lengthy recitation of the references and reports tendered on his behalf, and a conclusion that “I have considered all those matters personal to the offender which I have already set out and he is capable of rehabilitation”.

11. I consider that the sentence imposed was manifestly inadequate. In R v De Leeuw [2015] NSWCCA 183 at [72], Johnson J (with the agreement of Ward JA and Garling J) said that:

“Appellate courts throughout Australia have consistently stated that the following propositions apply to sentencing for child pornography offences:

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].”

12. That principle has been followed subsequently: see for example R v Turvey [2017] SASCFC 28 at [134]. True it is that some courts have distanced themselves from aspects of that formulation, although it may be that the controversy is largely or wholly verbal rather than substantial. This was addressed in Director of Public Prosecutions (Cth) v Garside [2016] VSCA 74 at [62], where Redlich and Beach JJA concluded, after reviewing the authorities, that:

“What is clear from all of the authorities is that access to child pornography is regarded as very serious morally depraved conduct that is harmful to children. The authorities speak with one voice that a term of immediate imprisonment will ordinarily be expected for such offending. That accords with the language of Nettle JA, as he then was, in Smith, and in the dissenting reasons of Priest JA and the joint reasons in Zarb. Despite proposition (a) in De Leeuw at [25] above, no broader principle need be laid down as each case must be decided according to its own circumstances.”

See also at [85]-[87] (Priest JA).

13. Even if, favourably to Mr Freedman, the formulation in Garside is applied, this is self-evidently a case where a term of immediate imprisonment was warranted. The quantity of images and videos was substantial, they included some 200 in the most degrading and depraved categories, they had been downloaded over a period in excess of 12 months using a browser obtained for that purpose, and Mr Freedman was a man who had previously pleaded guilty to sexual offences against children and whose subjective case otherwise lacked any especially significant features militating against a sentence of imprisonment.

14. I also agree with what Bellew J has written concerning each of the three specific errors to which the Crown pointed. Strictly speaking, I do not regard them as “particulars” of a ground of manifest inadequacy. That formulation invokes the final category of error listed in House v The King (1936) 55 CLR 499 at 505, where error is to be inferred by reason of the order made that there has been a failure properly to exercise the discretion. As Gleeson CJ and Hayne J said in Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6],

“Manifest inadequacy of sentence, like manifest excess, is a conclusion.  A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent.  It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive.” 

That said, the matters “particularised” by the Crown do help to explain why an obviously inadequate sentence ended up being imposed.

15. However, I respectfully disagree with Bellew J in relation to the exercise of the residual discretion.

16. The threshold for intervention (in this case, a manifestly inadequate sentence) having been established, it remains necessary for the Crown to demonstrate that the discretion should be exercised: CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 at [33] and [66]. In the present case, the principal matters bearing upon the discretion are delay, the absence of any real explanation for the delay and the prejudice to Mr Freedman.

17. An assessment of the impact of delay turns in large measure on whether or not it is explained, and, especially, on whether the delay has been brought about through no fault of the respondent. In Director of Public Prosecutions (Vic) v Karazisis (2010) 31 VR 634; [2010] VSCA 350 at [108], a passage noted by the High Court in Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [72], Ashley, Redlich and Weinberg JJA said:

“Delay is generally regarded as an important mitigating factor, particularly in cases where it has been brought about through no fault of the respondent.  If the evidence is that a convicted person has taken advantage of a lenient disposition by removing himself or herself from a previously unsatisfactory environment, and has found employment and stability in his/her personal life, the Court will be reluctant to disturb that situation.” 

18. Sentence was imposed on 10 March 2017. A notice of appeal against the sentence imposed for the possession offence was not filed until 15 May 2017, and served the following day. There was a slight additional delay in the service of a separate appeal by the Commonwealth Director of Public Prosecutions, but nothing turns on that. On 25 May 2017, the Registrar fixed the hearing for 4 August 2017, and made procedural directions for service of submissions, which led to the Crown’s submissions being filed in early July. The evidence does not disclose whether an earlier date was available, or whether the Crown was able to file its submissions any earlier than it did (on 7 July 2017) and so I proceed on the basis that 4 August was the first available date, with a timetable for submissions derived from that date.

19. It follows that the delay from 15 May until now is to be regarded as an inherent consequence of the bringing of a Crown appeal. The delay which calls for explanation is the period from 10 March until 15 May, which is slightly more than 9 weeks.

20. To the extent that the Crown sought to explain that delay, the explanation was was concededly only a partial one. It was that requests for the remarks on sentence were made by someone within the Office of the Director of Public Prosecutions on 23 and 31 March (this request was said by whoever made it to be “a matter of urgency”) and 2 May, and the remarks were not received until 10 May.

21. Commencing a Crown appeal against sentence is no trivial matter. There will be cases – quite possibly, the majority of cases – where the power to commence a Crown appeal cannot properly be exercised until regard is had to the remarks on sentence (either in their final form, or as summarised by the lawyers attending on behalf of the Crown). This is not one of those cases.

22. Here, counsel appearing for the Crown attended both days of the sentencing hearing. On the first day, over counsel’s opposition, the sentencing judge directed that a report as to the suitability of an Intensive Correction Order be obtained. On the second day, counsel knew immediately upon the order being made that it was a sentence which was, on the Crown’s submission, unavailable.

23. So far as I can see, there was no need for any further information in order to make the decision to file a notice of appeal based on the sentence being manifestly inadequate. The ground of appeal was – and is – manifest inadequacy, and that ground does not turn on identifying specific error. But in any event, the issue is not one for speculation. The Crown bears the onus to explain why it took more than 9 weeks to file an appeal, and the Crown adduced no evidence to explain why no step could be taken without first obtaining the remarks on sentence.

24. Even if either or both Directors of Public Prosecutions or their delegates required information as to the reasons given by the sentencing judge, there is nothing in the evidence adduced by the Crown to displace the ordinary presumption that the lawyers attending would have taken notes of the remarks given by his Honour. The point of their doing so is to enable advice – including advice as to the appropriateness of a Crown appeal – to be given promptly.

25. Even if for some bureaucratic reason an appeal could not be commenced without first obtaining the remarks on sentence, there is no explanation at all for why the ordinary course of notification by letter that a Crown appeal was being considered was not followed in the present case. This was raised during the appeal:

“BELLEW J: But it’s not uncommon is it Mr Crown, even in the absence of a final decision being reached, it’s not uncommon for the Director in a case such as this, to send a letter to the prospective respondent indicating that consideration is being given to an appeal, that’s the first thing. I would only add to that stemming from what the presiding judge asked you a moment ago this, that your Mr Diggins’ submission on sentence was that these matters warranted a sentence of full time custody as it were, period. Given that he was present when the intensive correction orders were made surely that must have struck a chord, as it were, in his mind which should have been communicated to the Director that there was a potential issue regarding manifest inadequacy, simply on the basis that a full time custodial sentence hadn’t been imposed.

VELTRO: All I can indicate based on the evidence before the Court is that consideration was given to that issue and the decision was made to obtain the transcript first and steps were put into place to obtain that transcript before making a final decision and notifying the respondent.”

26. (To be clear about it, counsel for the Crown’s response over-stated the evidence. The evidence did not disclose that any consideration had been given to doing anything, apart from seeking the transcript. Nor did the evidence disclose why it took 13 days to make the decision to apply for the transcript.)

26. The delay in this case appears to be longer than any other recent Crown appeal. Counsel was unable to point to any comparable case where a Crown appeal had been brought from an Intensive Correction Order.

27. The closest comparators are cases where an Intensive Correction Order has been imposed for the same offences, and the Crown has appealed. In R v Porte, 28 days elapsed between the imposition of an Intensive Correction Order and the filing of an appeal, and that had been preceded by notification of an intention to bring an appeal: see at [4]-[5]. In R v De Leeuw, appeals were filed 28 days after the imposition of an Intensive Correction Order: see at [3] and [66].

28. Another recent example of a Crown appeal based on the manifest inadequacy of an Intensive Correction Order is R v Jafari [2017] NSWCCA 152, where, once again, 28 days elapsed between the imposition of sentence and the filing of an appeal: see at [3]-[4].

29. It may be noted that those periods accord with the fact that in most civil litigation, parties have around 28 days to exercise a right of appeal from a final judgment or order. Of course, on occasion Crown appeals are brought, or at least notification of an intention to do so, more quickly still. See the periods of seven days, nine days, and less than a week, in R v Cidan [2014] NSWCCA 66 at [104] and R v Mulligan [2016] NSWCCA 47 at [45].

30. I agree with Bellew J that the evidence adduced by Mr Freedman was less comprehensive than might have been expected in the circumstances. Yet there was no objection to it, and the Crown confirmed that it did not seek to cross-examine either Mr Freedman or Dr Powell. I do not disagree with any of the criticisms made by Bellew J of that evidence. However, in the absence of objection or challenge, the discretion falls to be exercised on the basis that there is no complaint about Mr Freedman’s service of the first five months of the Intensive Correction Orders, during which he has been performing the community service required of him, attending the Community Corrections Office, attending counselling fortnightly with his caseworker and otherwise complying with those orders.

31. In addition, and (so far as the evidence discloses) over and above compliance with the Intensive Correction Orders, Mr Freedman has attended group sessions conducted by Dr Powell weekly, and individual sessions monthly. Dr Powell’s unchallenged evidence is that:

1. “Mr Freedman’s progress in treatment is good and all that could be expected at this stage”; and

2. “Replacing a community-based ICO with a full-time custodial sentence will have a severe negative impact on the current treatment with Mr Freedman and his prospects for rehabilitation”.

33. In relation to the last point, both Dr Powell and Ms Addlem agreed that because (based on a relatively crude actuarial measure) Mr Freedman was of “low-medium” risk of re-offending, he would be unlikely to qualify to receive treatment in custody under various sex offender treatment programmes unless his sentence exceeded 2 years.

34. Dr Powell also gave the following unchallenged evidence of his treatment program:

“I developed the Men Taking Responsibility group treatment program for male sex offenders in 1996 and have treated over four hundred men since that time. There has been only two re-offences during or following treatment that has been reported.”

35. Further, shortly after sentence was imposed, Mr Freedman was directed to move to different premises (seemingly because there were children in the apartment complex where he had been living). He did so, taking out a six month lease of premises which were to the satisfaction of Community Corrections. This occurred before he received notification that an appeal had been brought. There will thus be some pecuniary cost and personal inconvenience to Mr Freedman if the appeal is allowed. In the scheme of things, given the seriousness of his offending, I do not place great weight on that. However, both from the perspective of Mr Freedman, and also from the perspective of a lay person looking at the operation of the legal system, there is some measure of inconsistency in the government on the one hand requiring Mr Freedman to move and approving his lease of different premises and on the other hand invoking this Court’s jurisdiction to impose a full time custodial sentence upon him.

36. The sentence imposed was not, with respect to the sentencing judge, one which was reasonably open having regard to all the facts of this case. This is the consideration which has troubled me most. It is of concern that the dismissing a Crown appeal by reason of the residual discretion in a case such as this will result in an offender receiving an unduly lenient sentence through error at first instance, and then to continue to receive the benefit of that unwarranted leniency through delay by the Crown coupled with prejudice to the offender.

37. There are undoubtedly cases where a sentence is so inadequate that even where there has been substantial delay and prejudice, the Crown will discharge its onus of demonstrating that the discretion should be exercised. Director of Public Prosecutions (Cth) v Afford [2017] VSCA 201 at [53]-[55] and [77] is a recent example.

38. In the present case, this Court’s reasons will serve the public interest of correcting the error made by the sentencing judge in relation to future cases. And there is unchallenged evidence that allowing the Crown’s appeal will have a severe negative impact upon Mr Freedman’s rehabilitation. Those were the two matters to which French CJ, Crennan and Kiefel JJ referred in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [2]. Once it be accepted that Crown appeals are subject to a residual discretion which is only enlivened after appellable error is made out, it must follow that there will be cases when, in the proper exercise of that discretion, erroneous sentences are permitted to stand uncorrected.

39. Further, in the present case, the delay is large. Waiting more than two months before giving any indication to an offender of a Crown appeal, in circumstances when the Crown had submitted to the sentencing judge that the sentence was not properly available, in a case which is as stark as this one, calls for an explanation. And there is a public interest in holding the Director of Public Prosecutions, in whom is vested the right and heavy responsibility of bringing a Crown appeal, to high standards.

40. I consider the exercise of the residual discretion to be quite finely balanced. However, ultimately I have concluded that I should accept Mr Freedman’s submission, which was made by reference to Garside at [82]:

“The Directors have not negated any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised. In our opinion the reasons for concluding that the sentencing disposition was not appropriate will serve to identify the relevant principles for the governance and guidance of sentencing courts. The public interest will not be best served by removing the respondent from civil society and now imposing on him a term of imprisonment that will potentially disrupt his current rehabilitation which has been underway for a period in excess of seven months.”

41. Mr Freedman submitted that “In the present appeal, the respondent commenced his treatment and rehabilitation soon after his arrest in May 2016, some 15 months ago, and has now completed 5 months of his ICO, involving intensive, directed treatment and community service.” To that I would add that (a) in contrast with the “potential” disruption of rehabilitation progress which was relied on by Redlich and Beach JJA in Garside, the unchallenged evidence in this appeal is that the disruption would be certain and severe, (b) the period during which Mr Garside had served a Community Correction Order was also (as at the time the appeal was heard) some five months and (c) in Garside there appears to have been no complaint as to the delay (see at [76]).

42. Notwithstanding the inadequacy of the sentence, I would dismiss the Crown appeal in the exercise of discretion.

43. BELLEW J: On 31 October 2016 Michael Ian Freedman (“the respondent”) pleaded guilty in the District Court to an indictment containing the following counts:

1. Between 1 January 2015 and 10 May 2016, at Batehaven in the State of New South Wales, did commit an offence, in that he did use a carriage service to access material and the material is child pornography material.

2. On 10 May 2016, at Batehaven in the State of New South Wales, did possess child abuse material.

44. The offence in count 1 was contrary to s. 474.19(1) of the Criminal Code 1995 (Cth) (“the Code”). The maximum penalty for that office is imprisonment for 15 years. The offence in count 2 was contrary to s. 91H(2) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is imprisonment for 10 years and there is no prescribed standard non-parole period.

45. On 10 March 2017 the respondent was sentenced by his Honour Judge McLoughlin SC as follows:

1. in respect of count 1, 15 months’ imprisonment to be served by way of an Intensive Correction Order commencing on 10 March 2017;

2. in respect of count 2, 12 months’ imprisonment to be served by way of an Intensive Correction Order commencing on 10 March 2017.

46. His Honour further ordered that the two sentences be served wholly concurrently.

47. By notice dated 23 May 2017, the Commonwealth Director of Public Prosecutions appealed against the sentence imposed in respect of count 1, on the ground that it was manifestly inadequate. By notice dated 12 May 2017 the NSW Director of Public Prosecutions appealed against the sentence imposed in respect of count 2 on the same ground. As discussed further below, the Crown points to three specific errors on the part of the sentencing judge which, it is submitted, resulted in the imposition of a manifestly inadequate sentence.

The circumstances of the offending

48. The sentencing judge found the circumstances of the offending to be as follows (commencing at ROS 1):

The circumstances giving rise to the commission of this offence are that the offender is a registrable person under the provisions of the Child Protection Offender's Registration Act 2000. Arising because he was charged with two counts of aggravated sexual assault on a child under 16 and two counts of aggravated indecent assault on a child under 16 and three counts of commit act of indecency.

The offender appeared before the Lismore District Court on 4 June 2010 where he admitted the offences and was sent on a pre-trial diversion to Tudor Cottage for a period of two years with the result he was placed on a child protection register for a period of 15 years.

As part of the obligations that arise as a registrable person s 16(c)(4) of the Child Protection Defender's Registration Act 2000. (sic) Police are authorised to attend the premises of the registrable person to conduct an inspection of the premises and to verify all relevant personal information relating to that registrable person. Police attended the home of the offender at 4/28 Matthew Parade, Batehaven at 4.20pm on 10 May 2016. On arrival at unit 4/28 Matthew Parade, Batehaven the offender invited police into the unit with police advising the offender of the purpose of their visit and they will be seeking access to any electronic devices at the premises. A short time later the offender handed a Verbatim brand portable hard-drive with police asking the offender of the contents of the storage drive and he advised that it contained child abuse material. The offender connected the portable hard-drive to the computer that was in the house, opened the file on the portable hard-drive that was named 'guitar lessons' (sic) Police observed a number of images on the portable hard-drive which they identified as child abuse material.

The offender was placed under arrest, cautioned by police and police then took possession of the portable hard-drive, as well as the one HP laptop and one black HP laptop that were located in the house.

The offender and this material were taken to the Bateman's Bay police station where the offender took part in an ERISP interview in which the offender made a number of admissions about the material located on the portable hard-drive and the fact that he had downloaded the child abuse material. He told police that he had been downloading child abuse material for a period of about 12 months prior to the date of his arrest and confirming he had downloaded images along with the video files from the darknet, having use (sic) a browser called tor' (sic) in order to access the material.

The offender used the internet service to gain access and to download this material, the area of the internet is not easily accessible and the usual search engines cannot be used to gain access to the darknet. He told police it had been at least 12 months since he commenced downloading the material, he had downloaded approximately 200 images and video clips.

Confirming those images and videos depicted children from babies to age 18. The content of the images and videos ranged from nudity to young children engaging in various sex act (sic) such as oral sex and the use of vibrators.

The offender confirmed the last time he had downloaded child abuse material to his portable hard-drive was on 7 May 2016 saving the material into the folder named 'guitar lesson' under the file named 'dad rap'.

The portable storage device was taken to SEEV (sic) State Electronic Evidence Branch for analysis and was determined to contain 11,660 images, of those it was determined that 486 to 590 images were child abuse material.

Police physically examined 6,275 images with the officer determining 75 images were in CTS level 1, depicting children with no sexual activity, 14 images were in CTS level 2 non-penetrable sexual activity between children or solo masturbation by a child, 58 images were in the CTS level non-penetrable sexual activity between children and adults. 133 images were in the CTS level 4, penetrable sexual activity involving children and adults. 11 images were in the CTS level 5, sadism and bestiality.

49. The respondent gave evidence before the sentencing judge. He admitted (at T5 L18-20) that he had been downloading the material which was found in his possession for approximately 12 months. He was then asked in evidence in chief (commencing at T5 L22):

Q. And was that all the time or was it on an off or what were you doing?

A. No it was short bouts over that time, in between time I was feeling bad about it, but I didn't seem to be able to delete it or stop doing it.

Q. And you told the police when the police asked you how you felt, police asked whether you wanted to say anything and you said you hate what you've done, you've let everyone down, you still have that - what you told the police and what I've provided to his Honour you still feel that way?

A. Yes definitely.

50. The respondent also told the sentencing judge (at T10 L28-35) that during the period of offending he had “sort of half convinced” himself that his crimes were victimless. The effect of his evidence was that he had now revised that thinking, and appreciated that such categorisation of his offending was an error. He was then asked by the sentencing judge (commencing at T12 L29):

Q. Well they're going to be victims aren't they?

A. As I said your Honour I realised they are victims I'm not saying they're not victims, what I'm saying is the act of downloading a file I tried to convince myself it didn't hurt anybody. I didn't go and have sex with a child to make the video is what I'm saying.

Q. Well you'd be charged with something far more serious if you did?

A. I understand that but what I'm saying is what I tried to tell myself I now recant that and I'm fully aware of the effect that people like me downloading things have because there's a supply there, there's demand there. I understand that and I understand that you have to commit a crime and assault a child to make that video in the first place. I've never said that wasn't a victimless crime.

51. In cross-examination the respondent agreed (at T12 L45-46) that he was aware at the time of his offending that he was committing criminal offences. However he denied (commencing at T12 L48) that he had taken deliberate steps to hide his offending by placing the images he had downloaded in a file on his computer entitled “guitar lessons”.

52. The respondent also rejected the proposition put to him in cross-examination (commencing at T13 L6) that he had particular technological expertise which he had utilised for the purposes of committing the offences. He said, in particular, that the images that he had located were readily accessible to anyone. However, he conceded (commencing at T13 L14) that it was necessary for him to download a particular program onto his computer in order to access the images, and that those images were located on the “dark web”:

Q. But you can't go on Google and find this sort of material?

A. Okay what I did I went on Google and I found out how to download the program.

Q. What program?

A. Tall (sic) web browser, it's just a web browser the same as any other web browser.

Q. What made you go to tall (sic)?

A. I was investigating the dark web, what the internet that isn't readily accessible.

Q. Okay so I'll put it to you again that what your expertise is beyond that of the average person?

A. No because I followed Google instructions.

53. The respondent was then asked (commencing at T13 L39):

Q. You would agree that you have a greater expertise than the average person on the street?

A. In the past I'd have but not in the last 15 years, I use to teach computer classes before there was an internet but I don't have any more expertise than anybody else. For some reason everybody seems to think I do, they come to me with computer problems, I can't fix them.

Q. I'm talking about the searching the internet for these areas and so forth?

A. I didn't - I knew as much as anyone else I Googled it, I found a how to guide I got a free program of the internet which was originally provided by the American Government, installed it like you would any other program. I typed in the search, I typed in child pornography, it came up with a list of possible pages, which is what you do on Google. I clicked on it, it took me through to pages of child pornography.

Q. This is all on the dark net?

A. Yeah but once you have Thor (sic) it's all the web, so it's no different to anyone else downloading a program and using it, so in this case no I didn't have any more expertise than anyone else.

Q. So you would disagree with the proposition that I'm suggesting that you did have more expertise than the average person on the street?

A. No I, I had a reason to do it.

Q. So it took some time and some work to find these sites?

A. No I said I installed a program, I typed child pornography in the search engine and it came up with the pages.

Q. This is over a period of 12 months though?

A. No it was the first day.

Q. Yes but you used that program over 12 months?

A. Yes off and on.

Q. Downloading when you needed new material I put it to you?

A. Yeah.

The respondent’s subjective case on sentence

54. The following documents were tendered in the respondent’s case:

1. a testimonial from Noel Elliott;

2. a report of Dr George Kariotis, General Practitioner dated 19 October 2016;

3. a report of Tim Golding, Clinical Psychologist dated 3 October 2016;

4. a report of the Rev Dr Peter Powell, Psychologist dated 30 October 2016; and

5. an assessment report for an Intensive Corrections Order prepared by Dawn Addlem, Community Corrections Officer dated 9 March 2017.

55. Mr Elliott met the respondent three years ago through a business connection. He described being “more than a little surprised” when informed of the charges brought against the respondent, and described him as being “deeply affected and remorsefull (sic)” by what he had done. Mr Elliott expressed his ongoing support for the respondent.

55. Dr Kariotis saw the respondent on 16 May 2016 when he had “presented with an exacerbation of underlying depressive illness due to current life stressors, specifically…police/legal issues”. On that occasion the respondent was commenced on anti-depressant medication and referred to Tim Golding, Clinical Psychologist. At a second consultation on 25 October 2016, the respondent informed Dr Kariotis that medication and counselling had been beneficial. Dr Kariotis formed the view at that time that the respondent’s anxiety symptoms had all but resolved, but that he would need ongoing support.

56. Mr Golding’s report confirmed that he met with the respondent for seven sessions following the referral from Dr Kariotis. He confirmed that the respondent suffered from a mood disorder with anxiety, and stated:

“Undoubtedly his symptoms reflect his response to stress arising from dealing with the matter for which he is before the court, and the potential consequences. But I think, too, that he bears a chronic vulnerability to compromised mood, with its origins in a history (sic) difficult personal experiences, particularly with being exposed to extensive emotional abuse and to incidents of sexualisation from an early age within his family.

58. Dr Powell’s report recorded that the respondent had attended for assessment on five separate occasions between July and October 2016. He described the respondent’s participation as satisfactory and noted that he was to commence group treatment shortly. In paragraph 12 of his report, under the heading “Self-assessment tools”, Dr Powell said:

12. While most times Mr Freedman behaves as a caring and empathic person, he did endorse two apparently contradictory items. He rarely thinks about how the victim might feel when he sees a television program on sexual abuse; however, he frequently wonders what it would be like to be the person against whom he offended and is frequently able to put himself (sic) someone else's shoes to understand how they feel. The apparent contradiction may well be because a TV program is confronting and something he would rather not watch, but in his deeper empathic moments he connects to the people he has harmed.

59. Dr Powell described the respondent as having a passive personality which rendered him “extremely prone to avoid deep interpersonal relationships and move into deviant psychosexual behaviour”. He went on to describe (at (24)) that the respondent had come from “an extraordinarily dysfunctional” family, characterised by abuse, conflicted relationships and a relationship with his stepfather in which he (the respondent) was constantly belittled.

60. Against this background, and in respect of the circumstances of the offending, Dr Powell stated the following (commencing at (28)):

28.   Mr Freedman reports that his life fell into a theme of escapism through music, books, riding a motorbike as well as saturating himself accessing legal exploitive material (pornography).

29.   Mr Freedman reports that he was intimidated by women and found making relationships with them difficult. He married and found himself in another controlling relationship, where even the money he earned was doled out to him by his wife. He experienced sexual and emotional intimacy as poor and became more attracted to younger girls - around the age of twelve years - who did not intimidate him. He felt the exploitive material gave him a sense of control and while he could not tolerate a scene of a child in distress in a movie, he found that he could do so with child abuse material. He was open to admitting that this also related to his underlying resentment of women.

30.   Mr Freedman's primary fantasies and abusive material accessed related to young girls pleasuring themselves through masturbation or of family units engaging in what looks like 'consensual' sexual acts together. This is a further indication of how the early sexualisation and abusive family system was conflated into a distorted, sexualised 'happy' family. This indicates the result of early childhood trauma and a less resilient personality not being able to discover socially acceptable ways to find personal identity. Despite treatment provided through the diversional program at Cedar Cottage, Mr Freedman is once again before the Court, this time for child abuse material. This would indicate that the deep-seated personal trauma is yet to be adequately addressed and that Mr Freedman requires significant therapeutic intervention.

61. Dr Powell assessed the respondent’s risk of reoffending as low-moderate. He concluded that the respondent was suffering a serious attachment disorder, resulting from a dysfunctional upbringing characterised by abuse. He concluded that the respondent’s childhood had negatively impacted on his life, but that he had worked hard since his initial treatment to build a positive life for himself.

62. Notwithstanding the nature of the offending, Dr Powell expressed the opinion (at (40)) that the respondent did not indicate having a primary sexual focus on children or adolescents. He concluded (at (43)) that there was no evidence that the respondent was a paedophile but that in the absence of treatment, he was a low to moderate risk of reverting to that type of behaviour. He further concluded (at (48)) that there was a requirement to implement a treatment plan in which the respondent would need to continue to explore aspects of his psycho-sexual development. Dr Powell did not diagnose the respondent as suffering from any form of mental illness. To a large extent, his report did little more than recount the history he was given by the respondent.

63. In the course of giving evidence before the sentencing judge, the respondent made reference to some of the matters canvassed in Dr Powell’s report and said (commencing at T6 L46) that with the assistance of Dr Powell, he had addressed a number of relevant issues. It was put to the respondent in cross-examination (commencing at T14 L45) that his decision to consult with Dr Powell had been brought about solely by the fact of his arrest. Whilst the respondent accepted that the commencement of such treatment had been triggered by his arrest, he denied that he had undertaken such treatment for the purpose of obtaining favourable evidence which could be put before the sentencing judge. He also disagreed (at T15 L21-22) with the proposition that in seeking assistance from Dr Powell, he was motivated solely by the prospect of lessening any sentence which might be imposed. He said (at T14 L50) that he regarded his arrest as “a sign” that he needed help. When it was put to him (at T15 L4) that the contact with Dr Powell could have been put in place prior to his arrest, the respondent replied:

It could have been done but sometimes - it's my experience and just in my life and my families' (sic) life that big change doesn't come around because one day you wake up and think I might like to change. It changes because something has happened.

64. The report of Ms Addlem noted that the respondent described the commission of the offences “as a form of escapism and mood management” and that he had “felt a compulsion to collect the material”. Ms Addlem went on to say that the respondent stated that he had felt that these were victimless crimes, but that with the assistance of treatment he appeared to “now realise that the material consisted of many innocent victims”. The respondent told Ms Addlem that he was now aware that by viewing material of this nature, the abuse of those children appearing in it was being perpetuated. She assessed the respondent as being a low/medium risk of reoffending.

65. In terms of his “escapism”, the respondent gave the following evidence before the sentencing judge (commencing at T7 L8):

Q. And one of the way (sic) that you deal with this escaping from reality is to look at pornography?

A. Yeah that's how it started this time.

Q. And it went from adult to child is that right?

A. Yes.

Q. So it started as adult pornography?

A. Yes, yes.

The respondent’s criminal history

66. On 4 June 2010, the respondent appeared before the District Court at Lismore in respect of the following offences (all of which were committed in 2003):

1. aggravated sexual assault of a person under the age of 16 years (2 counts);

2. aggravated indecent assault of a victim under the age of 16 years (2 counts);

3. committed an act of indecency with a person under the age of 16 years (3 counts).

67. All matters were dealt with by way of pre-trial diversion for a period of 2 years commencing on 27 April 2010, with an undertaking by the respondent to continue with a diversion program at “Cedar Cottage”. On 13 August 2012, the respondent appeared before the Penrith Local Court on 2 counts of failing to comply with his reporting obligations. He was given the benefit of a bond under s. 9 of the Crimes (Sentencing Procedure) Act 1999 on that occasion.

68. In his evidence before the sentencing judge (commencing at T4 L37) the respondent confirmed having undertaken the program at Cedar Cottage and explained that he had failed to attend his annual review in respect of inclusion on the child protection register. He was asked (commencing at T5 L7):

Q. So you should have attended this review and why didn't you, were you at Cedar Cottage?

A. I was at - yeah I was attending the program there. Of (sic) and on through the program I suffered depression and I think it was just one of those times where I was, actually had a job for a while and I put it off, put it off and then before I knew it a month had gone past.

Q. And then you were put on a two year bond but there were no breaches of that bond is that right?

A. That's right.

The reasons of the sentencing judge

69. Having outlined the facts of the offending, the sentencing judge set out the detail of the images found in the respondent’s possession (commencing at ROS 3):

The portable storage device was taken to SEEV (sic) State Electronic Evidence Branch for analysis and was determined to contain 11,660 images, of those it was determined that 486 to 590 images were child abuse material.

Police physically examined 6,275 images with the officer determining 75 images were in CTS level 1, depicting children with no sexual activity, 14 images were in CTS level 2 non-penetrable sexual activity between children or solo masturbation by a child, 58 images were in the CTS level non-penetrable sexual activity between children and adults. 133 images were in the CTS level 4, penetrable sexual activity involving children and adults. 11 images were in the CTS level 5, sadism and bestiality.

It was also determined that the portable storage device contained 3,110 video files, of those video files it was determined that some 241 to 372 video files contained child abuse material. Police physically examined 931 video files, the officer determined that six video files were in CTS level, 13 in CTS level 2, six CTS level 3, 63 CTS level 4 and 2 CTS level 5.

The HP laptop was then taken to SEEV for analysis and it was determined that that contained 24,632 images, of those it was determined that some one to six images were child abuse material.

The HP laptop was then taken to SEEV for analysis, it was determined that it contained 24,632 images, some one to six were child abuse material. Police physically examined 10,050, determined one image was in the CTS level 2. The black HP laptop was taken to SEEV for analysis, it was determined it contained 20,609 images with it being determined that 83 to 144 were child abuse material.

Police physically examined some 9,207 images and determined 48 were CTS level 1, one CTS level 2, two CTS level 3. It was also determined that the black HP laptop contained 3,007 video files with some 21 to 49 contained in (sic) child abuse material. Police physically examined some 612 video files, determined nine were CTS level 1, one CTS level 2, one CTS level 3, five CTS level 4, three CTS level 5.

70. His Honour then said (commencing at ROS 4):

It can be seen from those acts that there were many images which did not offend against the legislation but some did and what must be understood by the offender is that each time there is a victim, that victim ultimately pays the penalty for being a victim. Often they are from poor countries but they are still being subject to the abuse when the images were taken and they know that those images may well be used all around the world. As a result they have the potential to suffer significantly and the court must take that into account in determining penalty.

These offences unfortunately are prevalent, they are very serious, the seriousness can readily be determined by the approach that the State and Federal Government has taken in relation to the penalties that are imposed for people that offend. In relation to all of the offences I am of the view that they are well below the middle of any scale constructed for such offences.

In relation to the Commonwealth matter it is a matter of utmost gravity as I have indicated. The offender had the capacity to make his own decisions which he did in relation to the commission of the offence. I am of the view that prison sentences must result in relation to the offences.

71. Although not expressly stated, in that part of his remarks set out at [70] above, his Honour appears to have been making some assessment of the objective seriousness of the offending. Some confusion arises from his Honour’s observation that the offences were “well below the middle of any scale constructed for such offences”. In particular, it is not clear whether, in making that observation, his Honour was referring to the CTS levels which are adopted for the purposes of categorising the seriousness of images of the kind accessed and possessed by the respondent, or a putative scale of objective seriousness of this type of offending. Assuming it was the latter, the Crown took issue with the proposition that the offending fell “well” below the mid-range of objective seriousness.

72. His Honour then dealt with the respondent’s subjective case. Having noted aspects of the respondent’s background, his Honour made reference to his criminal history. Having done so, his Honour said (at ROS 5):

In this instance the offender was compliant, readily assisted the police officers in their investigation and readily made the admissions which I referred and I understand will be contained within the ERISP.

It is a matter which would allow the court to extend some leniency to the offender as he had not offended in this regard for some nearly 13 years.

73. The sentencing judge then dealt with the medical and testimonial evidence (commencing at ROS 5). He summarised the report of Dr Powell at considerable length (commencing at ROS 6) before summarising the report of Ms Addlem (commencing at ROS 10). His Honour concluded (at ROS 12) that:

1. only a sentence of imprisonment would satisfy the requirements for general and specific deterrence;

2. the nature of the offending was “very serious”;

3. the respondent had shown contrition by his plea of guilty;

4. he had co-operated with law enforcement agencies;

5. the sentence was designed to “adequately punish him to have a deterrent effect upon him and others”; and

6. the respondent was “capable of rehabilitation”.

74. Although these observations were made in the context of imposing the sentence for the offending contrary to the Code, his Honour’s remarks are to be construed as applying to the entirety of the respondent’s offending.

75. His Honour concluded by saying (at ROS 13):

I am of a view as can readily be seen that these offences, the one State and the one Federal, are such that the sentences should be concurrent and for the reason that I have dealt with them in that way.

The errors asserted by the Crown

76. The notices filed by the respective Directors of Public Prosecutions each specified a single ground of appeal, namely that the sentence imposed was manifestly inadequate. In written and oral submissions before this Court, the Crown relied upon three particular errors on the part of the sentencing judge, namely that his Honour had:

1. failed to accumulate, to any degree, either of the sentences imposed;

2. failed to have proper regard to the need for general deterrence; and

3. given excessive weight to issues surrounding the respondent’s rehabilitation.

General sentencing principles for offending of this nature

77. Before addressing the specific errors for which the Crown contends, it is appropriate to make reference to some general principles which apply to sentencing for offending of this nature. In R v De Leeuw [2015] NSWCCA 183 Johnson J (with whom Ward JA and Garling J agreed) set out the following (commencing at [72], citations omitted):

1. unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted;

2. the objective seriousness of the offending is ordinarily determined by reference to the following factors:

3. the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;

4. the number of items or images possessed;

5. whether the material is for the purpose of sale or further distribution;

6. whether the offender will profit from the offence;

7. in the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised;

8. the length of time for which the pornographic material was possessed;

9. general deterrence is the primary sentencing consideration for offending involving child pornography;

10. less, or limited, weight is given to an offender's prior good character;

11. 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;

12. offending involving child pornography is difficult to detect given the anonymity provided by the Internet;

13. the possession of child pornography material creates a market for the continued corruption and exploitation of children;

14. there is a paramount public interest objective in promoting the protection of children;

15. the possession of child pornography is not a victimless crime because children are sexually abused in order to supply the market;

16. the fact that an offender did 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.

78. Similar observations had previously been made by his Honour (Leeming JA and Beech-Jones J agreeing) in R v Porte [2015] NSWCCA 174 (at [55]-[81]).

79. Counsel for the respondent in the present case sought to distinguish both of these authorities on the basis that they each involved offending of greater objective seriousness. That may be so. However what must be emphasised is that whilst each case must be determined on its own facts, and whilst the considerations referred to by Johnson J are not prescriptive of the outcome of any case, the matters to which his Honour referred are of general principle, to be used as a guide to the exercise of sentencing discretion in cases of this nature: Fedelev R [2015] NSWCCA 286 at [63] per Hidden J (Davies J agreeing).

80. Mindful of those principles, I turn to consider the errors asserted by the Crown.

The failure to accumulate the sentences

Submissions of the Crown

81. In short, the Crown submitted that the passage from his Honour’s sentencing remarks set out at [70] above failed to address the fact that the offences were separate, and involved distinct acts of serious criminality. The Crown pointed to the fact that the respondent had utilised a carriage service to access child pornography material and, having done so, had downloaded a number of images which he kept in his possession for his own personal gratification. It was submitted that although there was some overlap between the offences, they were not identical, and that his Honour had erred in approaching the matter on the basis that entirely concurrent sentences were appropriate.

Submissions of the respondent

82. Counsel for the respondent submitted that there was no general principle which required the sentencing judge to accumulate, wholly or partly, the sentences he imposed. Counsel emphasised that questions of accumulation and the like are matters within the discretion of a sentencing judge. It was submitted that the discretion had not miscarried in the present case.

Consideration

83. As counsel for the respondent properly pointed out, issues of accumulation and concurrence are matters within the discretion of a sentencing judge. Issues of concurrency and accumulation are to be determined by considering whether the sentence for one offence can comprehend, and reflect, the criminality for the other. If it can, the sentences should be concurrent, otherwise there is a risk that the length of the sentence will exceed that which is warranted in order to reflect the total criminality. If it cannot, the sentences should be as least partly cumulative otherwise there is risk that the sentence will fail to reflect the total criminality of the entire offending: Cahyadi v R [2007] NSWCCA 1 at [27] per Howie J (Adams and Price JJ agreeing).

84. In the present case the sentencing judge, other than making a passing reference to the fact that the charges had been brought under two different legislative provisions, gave no reasons why he considered it appropriate to order that the sentences be wholly concurrent. In De Leeuw, Johnson J emphasised (at [114]) the need to keep in mind the different vices to which the respective provisions are directed (see also Porte at [55]-[56] and [157]). His Honour went on to observe (at [142]):

…Although the Respondent used a carriage service to access child pornography material which he then downloaded for possession and subsequent use, it would be wrong to approach sentencing in this case upon the basis that entirely concurrent sentences were appropriate as between the Commonwealth offences and the State offence. The Commonwealth and State offences overlap, but they are not identical.

85. There was obviously some overlap in the two offences, and it is not uncommon in matters of this nature for the two different offences to be charged. However the legislative provisions which create the two offences are not identical. On the contrary, they are directed to quite separate and distinct forms of criminal offending. The sentencing judge gave no reasons for ordering that the sentences be served wholly concurrently. I am satisfied that the error asserted by the Crown has been made out.

The failure to have proper regard to general deterrence

Submissions of the Crown

86. In short, the Crown submitted that in ordering that the sentences imposed be served by an Intensive Correction Order in each case, the sentencing judge had failed to have proper regard to the need for general deterrence. In doing so, the Crown took the Court to various aspects of the offending which, it was submitted, highlighted its specific gravity. Whilst the Crown acknowledged that the sentencing judge had, on more than one occasion, made observations as to the need for general deterrence, it was submitted that the sentence which was ultimately imposed did not properly reflect those observations.

Submissions of the respondent

87. Counsel for the respondent submitted that it was evident from the various references to the issue that his Honour was mindful of the need to have regard to general deterrence, and its importance in the sentencing exercise. It was submitted that in these circumstances, it was not open to suggest his Honour had erred by failing to have proper regard to it.

Consideration

88. General deterrence is the primary sentencing consideration for this kind of offending: De Leeuw at [72] and the authorities cited therein including Director of Public Prosecutions v D'Alessandro (2010) 26 VR 477; [2010] VSCA 60 at [21] per Harper JA (Redlich JA and Williams AJA agreeing); Director of Public Prosecutions v Guest [2014] VSCA 29 at [25] per Coughlan JA (Weinberg and Whelan JJA agreeing). In the present case, the sentencing judge made more than one reference to the importance of general deterrence. Indeed, he concluded (at ROS 12) that “only a sentence of imprisonment will satisfy the requirements for general and specific deterrence”, and (again at ROS 12) that the sentence he intended to impose was designed “to have a deterrent effect upon him and others”. It is evident from these references that this Honour was aware of the need to have regard to general deterrence. However in my view, there is a serious displacement between those observations, and the sentences which were ultimately imposed. It is one thing to make reference to, and acknowledge the importance of, general deterrence in sentencing for offences of this kind. It is quite another to impose a sentence which reflects that factor having been taken into account.

89. Whilst an Intensive Correction Order represents a substantial punishment, it is nevertheless one which reflects a significant degree of leniency, simply because it does not involve immediate incarceration: R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225 at [108] per McClellan CJ at CL and Johnson J (Price, RA Hulme and Button JJ agreeing); R v Glynatsis [2013] NSWCCA 131 at [69] per Hoeben CJ at CL (Rothman and McCallum JJ agreeing). The degree of leniency inherent in the Intensive Correction Order imposed by his Honour in each case failed to satisfy the requirement to have regard to general deterrence, to the point where the importance of that factor on sentence was allowed "to slip through, almost without a trace": D'Alessandro at [24].

90. The second error for which the Crown contends has been made out.

The excessive weight given to the respondent’s rehabilitation

Submissions of the Crown

91. The Crown submitted that the sentencing judge had given undue weight to the respondent’s rehabilitation, resulting in a lack of proportionality in the sentences that were imposed. It was submitted, in particular, that his Honour had given the report of Dr Powell excessive weight.

92. Moreover, and even allowing for the length of time which had elapsed since the respondent’s previous offending, it was submitted that such offending necessarily cast doubt on the respondent’s prospects of rehabilitation, and highlighted the importance of specific deterrence. It was submitted by the Crown that his Honour had omitted to properly consider either of these matters and that, in particular, he had failed to make a proper assessment of the respondent’s prospects of rehabilitation, concluding only that the respondent was “capable” of rehabilitation.

Submissions of the respondent

93. Counsel for the respondent submitted that rehabilitation was obviously an important factor bearing upon the exercise of his Honour’s sentencing discretion, and that his Honour was entitled to attach significant weight to it. Counsel submitted that on a proper reading of his Honour’s sentencing remarks, it was evident that he had accepted the various opinions of Dr Powell and had been entitled to do so. It was submitted that although his Honour had not made a specific finding, the general tenor of Dr Powell’s report was that the respondent had positive prospects of rehabilitation.

Consideration

94. His Honour summarised the report of Dr Powell at considerable length. However having done so, and aside from his conclusion that the respondent was “capable” of rehabilitation, his Honour made no actual findings in relation to any of the matters about which Dr Powell had reported. In particular, his Honour made no assessment of the respondent’s prospects of rehabilitation, that being a primary issue to which Dr Powell’s report was directed. Notwithstanding the absence of any such findings, it is apparent from the time that his Honour devoted to summarising Dr Powell’s report that its contents played a significant part in his ultimate determination of sentence.

95. Dr Powell’s report recorded the fact that between 20 July 2016 and 10 October 2016 the respondent had attended a total of five “assessment sessions”. Dr Powell did not diagnose the respondent as suffering from any form of mental illness. He dealt at some length with aspects of the respondent’s childhood and concluded that the “deep-seated personal trauma” suffered by the respondent as a child had not been adequately addressed. He described the respondent as suffering from a “serious attachment disorder” resulting from a dysfunctional upbringing. Dr Powell said nothing whatsoever, at least in any definitive terms, about the respondent’s progress as a consequence of his attendance at sessions up to the time of his sentence.

96. Subjective considerations, no matter how persuasive, cannot be allowed to unduly overshadow the objective gravity of an offence, to the point where there is a failure to ensure reasonable proportionality between the seriousness of the offending and the sentence imposed: R v Dodd (1991) 57 A Crim R 349 at 354; Kearsley v R [2017] NSWCCA 28 at [14] and the authorities cited therein. In the circumstances, in light of the contents of the report of Dr Powell and the time devoted by the sentencing judge to dealing with its contents, I am driven to the conclusion that matters pertaining to the respondent’s rehabilitation were given excessive weight in the sentencing process. It follows that the third error asserted by the Crown is made out.

The residual discretion

The evidence

97. In terms of the Court’s residual discretion, the Crown relied on an affidavit of Philippa Winston, Lawyer, of 1 August 2017 to which no objection was taken.

98. The respondent relied upon his affidavit of 1 August 2017, along with a further report of Dr Powell of 26 July 2017 (which was not in affidavit form). The Crown took no objection to any of this evidence, and did not seek to cross examine the respondent.

99. The affidavit of Ms Winston establishes the following chronology of events:

Date

Event

10 March 2017

Respondent sentenced in the District Court.

23 March 2017

Request made by the NSW Director of Public Prosecutions for his Honour’s remarks on sentence.

31 March 2017

Request made by the NSW Director of Public Prosecutions for his Honour’s remarks on sentence as “a matter of urgency”.

3 April 2017

NSW Director of Public Prosecutions is advised that “The transcripts have been ordered and will be forwarded as soon as they available”.

7 April 2017

A draft of the remarks on sentence is forwarded by Court Transcription Services to the sentencing judge.

19 April 2017

The transcript of the sentence proceedings is received by the NSW Director of Public Prosecutions. The Director is advised that:

• the remarks on sentence were sent to the sentencing judge on 7 April 2017,

• they were awaiting revision by his Honour;

• a follow up request for revision had been sent to his Honour.

2 May 2017

The NSW Director of Public Prosecutions makes further enquiry into the availability of the sentencing remarks. Transcription Services advise that no further information is available.

10 May 2017

The NSW Director of Public Prosecutions receives the remarks on sentence.

15 May 2017

Notice of appeal filed in respect of count 2 by the NSW Director of Public Prosecutions.

23 May 2017

Notice of appeal filed in respect of count 1 by the Commonwealth Director of Public Prosecutions.

25 May 2017

Matter first listed for call-over before the Registrar and listed for hearing on 4 August 2017.

100. The respondent’s affidavit was lacking in the detail that might reasonably have been expected to be included, given its importance. The respondent said (at (4)) that following the sentence proceedings he was required to move premises because those in which he had been living were deemed to be unsuitable by Community Corrections. Why this was so was not explained in the affidavit, although it would appear from the report of Ms Addlem that the respondent had previously resided in a unit block where a number of children also lived with their families. Although Ms Addlem raised the possibility of an exemption being granted to allow the respondent to remain at those premises, such exemption was obviously not forthcoming. The respondent said (at (5)) that he was required to enter into a 6 month lease for alternative premises and although his affidavit did not state when the lease was entered into, the Court was informed during the course of the hearing that it was in April of this year.

101. The respondent went on to outline (commencing at (6)) the rehabilitative steps he has taken since being sentenced. The terms in which he did so were vague and imprecise. He made reference to having consulted with a psychologist from Community Corrections based in Canberra on one occasion. No information was provided as to the identity of the psychologist, the outcome of the consultation, or whether any further consultations are proposed.

102. At (7), the respondent stated that his case worker had informed him that it was intended that he “attend at the group that is run out of Surry Hills”. No information was provided about the nature of this “group”, the identities of those by whom it is administered, or the precise rehabilitative steps to which it is directed.

103. At (8), the respondent stated that he had been attending “counselling once a fortnight” with his caseworker since being sentenced. Accepting that to be the case, the respondent would seemingly have attended counselling on approximately 10 occasions since he was sentenced. No evidence was put before the Court as to the respondent’s progress, in terms of his rehabilitation, as a consequence of attending those counselling sessions, nor was any evidence put before the Court which went to the issue of the potential consequences of that counselling being interrupted by the respondent being resentenced. The counsellor was not identified.

104. At (10), the respondent stated that since being sentenced, he has “continued to attend upon Dr Powell’s group sessions once per week in Sydney” and that he tries to “have a private session with Dr Powell once per month in Sydney”. He went on to state that the last such session was “about 3 weeks ago” and that the next was scheduled for 21 August.

105. Dr Powell’s report confirmed that the respondent had attended 11 group sessions since being sentenced. In very general terms, Dr Powell referred to the respondent having made positive progress as a consequence of that attendance although once again, the nature of those “group sessions”, and their focus, was not explained. Curiously, Dr Powell made no reference at all to the private counselling sessions to which the respondent referred as having undertaken with him.

106. In terms of the effects, upon the respondent, of the imposition of a full time custodial sentence, Dr Powell stated the following (at (7)):

Replacing a community-based ICO with a full-time custodial sentence will have a severe negative impact on the current treatment with Mr Freedman and his prospects for rehabilitation. It is unlikely that Mr Freedman would be able to receive any treatment in custody unless the sentence was two years or more.

Mr Freedman’s progress in treatment is good and all that could be expected at this stage.

107. Finally, the respondent stated in his affidavit (commencing at (14)) that he had assumed, until receiving the notice of appeal, that the charges against him had been finalised, as a consequence of which he had “got on with (his) life”. He said that after he received the notice of appeal he “became more depressed and suffered from greater levels of anxiety”. He described the period pending the hearing of this appeal as being “stressful”, and said that the uncertainty had made it difficult for him to plan his life.

Submissions of the Crown

108. In written submissions, the Crown argued that any delay in filing the notice of appeal had been brought about, not as the consequence of any default on the part of either Director of Public Prosecutions, but by the delay in obtaining the remarks on sentence from the sentencing judge. It was submitted that once the remarks were received, the Crown moved quickly to file the notice. It was also emphasised that the Crown had not sought to conduct its case before this Court in a way different to that in which it had conducted it before the sentencing judge. It was submitted, in particular, that the Crown had always maintained that a full time custodial sentence was the only proper and available outcome. The Crown also pointed out that the orders imposed by the sentencing judge had not yet expired.

109. In oral submissions, the Crown accepted that the procedures which are customarily adopted in matters such as this had not been followed in the present case. In particular, the Crown accepted that no letter had been forwarded to the respondent advising him that a Crown appeal was being considered, and that a decision would be made on the basis of a review of the transcript of the proceedings, and the sentencing remarks, once they were received.

110. The Crown also accepted that it had been represented in Court at the time that the orders were made, and that notes of what his Honour had said would necessarily have been available as a reference. However, the Crown maintained that it remained necessary for some matters to be checked and verified, hence the request for the sentencing remarks.

111. The Crown also emphasised that once the first notice of appeal had been filed, there had been no delay in the matter being listed for hearing. Finally, the Crown submitted that the opinion of Dr Powell as to the availability of remedial programs in custody was generally unsupported, and deserving of no weight.

Submissions of the respondent

112. Counsel for the respondent appeared to accept that the evidence relied upon by the respondent going to the issue of the exercise of residual discretion was less than fulsome. However, it was submitted that such evidence nevertheless established that there would be an interruption to the respondent’s rehabilitation if he were to be sentenced to full time custody. It was further submitted that parts of the report of Ms Addlem supported the opinion expressed by Dr Powell as to the limited availability, to the respondent, of rehabilitation programs in the event that a full time custodial sentence was imposed.

113. Counsel further submitted that the respondent’s affidavit established that he had effectively been forced to find alternative accommodation which was deemed suitable by Community Corrections. It was submitted, in effect, that the respondent had taken that course so as to be able to continue to perform his obligations under the orders imposed by the sentencing judge, in circumstances where he had no reason to believe that any appeal was being considered by the Crown. It was submitted that quite apart from any other consideration, the respondent would, if now taken into full time custody, be faced with a significant financial penalty in circumstances where the lease would not expire for several months.

Consideration

114. It is incumbent upon the Crown to satisfy the Court that the residual discretion to decline to intervene and re-sentence the respondent should not be exercised: CMB v Attorney-General for NSW (2015) 256 CLR 346; [2015] HCA 9 at [33] and [54]. In addressing that issue, there are a number of circumstances to be considered.

115. A period of almost two weeks elapsed between the date on which the respondent was sentenced, and the date on which the Crown sought a copy of the transcript and the sentencing remarks. No explanation has been advanced as to that period of delay, although I accept that when a request for that material was made, it was made clear that it was urgent.

116. Obviously, the request for the transcript and sentencing remarks was made because an appeal was being considered. The respondent was not informed of that fact. The Crown accepted that this was not in accordance with normal procedure. Why the normal procedure was not followed was not the subject of any evidence, and was not otherwise explained.

114. It is also relevant to note that the issue of the imposition of an Intensive Correction Order was the subject of submissions before the sentencing judge on 31 October 2016. It must have been apparent from that, as well as from the fact that the necessary report was ordered, that the sentencing judge was at least giving consideration to making such an order. There was nothing preventing the Crown from requesting a copy of the transcript of the sentence proceedings at that stage.

115. There is also a related issue of whether, in the particular circumstances of the present case, the sentencing remarks were required in order to allow the Director to reach a concluded view about whether an appeal ought be brought. On any view, the sentence imposed was inconsistent with the general principle that, absent exceptional circumstances, a full time custodial sentence should be imposed in matters of this nature. If the view was taken (as it apparently was) that the sentencing remarks were required to allow the Director to properly consider whether an appeal should be brought then at the very least, the respondent should have been notified of that possibility.

116. That said, the chronology set out at [99] demonstrates that a period of almost one month elapsed between the request for the transcript and the date on which it was provided to the Crown. Six weeks elapsed between the request for the sentencing remarks, and their provision. Those delays were not the fault of the Crown. They occurred in circumstances where it was made clear that the material was required urgently.

117. Once the remarks on sentence were received, the NSW Director of Public Prosecutions filed a notice of appeal within three working days. In totality, a period of sixty three days, or approximately two months, elapsed between the date on which the respondent was sentenced, and the date of the filing of the notice by the NSW Director of Public Prosecutions. That period must be assessed in light of all of the matters to which I have referred including the period of almost 6 weeks between the date of requesting the sentencing remarks, and the date on which they were provided.

118. As I have previously noted, Dr Powell expressed the view in his most recent report that replacing the current orders with a full time custodial sentence would “have a severe negative impact” upon the respondent’s current treatment and his prospects of rehabilitation. He went on to say that he considered it “unlikely” that the respondent would be able to receive any treatment in custody unless the sentence was 2 years or more. Dr Powell did not offer any underlying support for the second of those assertions. However the potentially limited availability of such programs was touched upon by Ms Addlem, who stated that in circumstances where the respondent had been assessed in the low-moderate risk category, he would “not necessarily” have access to a specialist sex offender treatment program in custody in the absence of specific risk factors being identified. Notwithstanding the imprecision of the most recent report of Dr Powell, I am prepared to accept that there would be some interruption to the respondent’s rehabilitation in the event that this Court were to intervene.

119. I have already made reference to the fact that the respondent stated in his affidavit that he had moved premises since being sentenced, due to the fact that his previous premises were deemed unsuitable by Community Corrections. The apparent reason for the unsuitability of those premises emerges from Ms Addlem’s report. Ms Addlem’s report makes it clear that the possibility of the respondent having to change address was raised well in advance of the date on which the respondent was sentenced. At one point in her report Ms Addlem noted that the respondent had stated that he “will seek alternative accommodation in the near future”. I accept that if he is now taken into full time custody, it is likely that the respondent will suffer a financial penalty. Moreover, if (as is apparently the case) his previous premises were deemed unsuitable, the would seemingly have had to move in order to perform his obligations under the orders made by the sentencing judge, irrespective of whether he was notified of the possibility of an appeal.

120. I accept that the respondent has, since being notified of the Crown’s appeal, lived in a state of uncertainty. That would no doubt have brought him considerable stress. Equally, such a circumstance is not uncommon in a case such as the present.

121. Moreover, public confidence in the administration of criminal justice is necessarily a factor which bears upon the question of whether the Court should not intervene. For the reasons I have set out, the sentence imposed in the present case was, on any view, manifestly inadequate and at odds with the applicable sentencing principles. In R v Stoupe [2015] NSWCCA 175 Johnson J (with whom Hoeben CJ at CL and Beech-Jones J agreed) made the following observations which are apt to the present case (at [115]):

[115] It is in the public interest that an appropriate sentence be imposed upon the Respondent, given the clearly erroneous sentence imposed at first instance. An important part of the jurisdiction to hear Crown appeals is to ensure that there will be uniformity of sentencing, which is of great importance in maintaining public confidence in the administration of justice.

[116] In Everett v The Queen [1994] HCA 49; 181 CLR 295, McHugh J said at 306:

“Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction. Sentences that are higher than usual create justifiable grievances in those who receive them. But inadequate sentences also give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public. Inadequate sentences are also likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice.”

125. It may be that the number of images obtained, and then possessed, by the respondent was less than seen in other cases. But the number of images is not, of itself, determinative of the seriousness of the offending. The majority of the images involved the second highest category of seriousness. This category describes penetrative sexual activity involving children and adults. There were also a number in the highest category of seriousness depicting sadism and bestiality involving children.

126. Moreover, the offending occurred over a period of 12 months, in circumstances where, in order to engage in it, it was necessary for the respondent to install a particular program on his computer for the purposes of accessing the “dark net” where the images could be found. This was not spontaneous offending. On the contrary, there was a considerable degree of pre-meditation in the respondent’s actions. As Johnson J pointed out in De Leeuw, the fact that the respondent did not pay to access any website, and was not involved in the distribution or sale of the material, does not mitigate his offending.

127. There was also nothing of any particular significance in the subjective case advanced by the respondent. The respondent could not, in light of his previous offending, be given the benefit of the finding of being a person of prior good character. Further, and for the reasons that I have already expressed, the sentences imposed by his Honour fell substantially short of what was required to address the primary sentencing consideration for this type of offending, namely that of general deterrence.

128. In all of the circumstances, and notwithstanding the factors surrounding the delay in the Crown bringing the present appeal, I have come to the view that when regard is had to the nature of the respondent’s offending, the inadequacy of the sentence imposed is so great as to be likely to undermine public confidence in the administration of criminal justice. In those circumstances, I am satisfied that the residual discretion to decline to intervene and re-sentence the respondent should not be exercised.

Re-sentence

129. The circumstances of the respondent’s offending have been canvassed at length. In respect of the offence contrary to s. 91H(2) of the Act, he is entitled to a 25% discount to reflect his early plea. I apply the same discount in respect of the offence against s. 474.19(1) of the Code, so as to reflect the respondent’s willingness to facilitate the course of justice. In respect of the sentence to be imposed for the latter offence, I have had regard to the matters set out in s. 16A(2) of the Crimes Act 1914 (Cth).

130. The respondent does not, in light of the matters on his criminal history, obtain the benefit of a finding of prior good character. I accept that overall, the respondent is remorseful for his offending. Whilst I also accept that he appears to have made some generally positive progress since being sentenced, his prospects of rehabilitation must necessarily be guarded in all of the circumstances.

131. In Fitzgerald v R [2015] NSWCCA 266 Hoeben CJ at CL (with whom Price and Button JJ agreed) observed that there has been a general consistency in the approach to sentencing for this type of offending. At [50] his Honour observed that the sentencing pattern revealed a range of head sentences of imprisonment between 18 months and 5 years after a discount for a guilty plea. I take that into account.

ORDERS

132. I propose the following orders:

1. The Crown appeal is allowed.

2. The orders of Judge McLoughlin SC of 10 March 2017 are set aside.

3. In respect of the offence contrary to s. 91H(2) of the Crimes Act 1900 (NSW) the respondent is sentenced to a fixed term of 15 months imprisonment to date from 10 March 2017, and to expire on 9 June 2018.

4. In respect of the offence contrary to s. 474.19(1) of the Criminal Code 1995 (Cth) the respondent is sentenced to 18 months imprisonment commencing on 10 June 2017 and expiring on 9 December 2018.

5. In respect of the order made in (4) above, and pursuant to s. 19AC(1) of the Crimes Act 1914 (Cth) I direct that at the expiration of a period of 15 months from 10 June 2017, namely on 9 September 2018, the respondent be released upon his own recognisance, without security, in a sum of $500.00, to be of good behaviour for a period of 3 months.

133. LONERGAN J: I have had the substantial benefit of reading in draft the reasons of Leeming JA and Bellew J.

134. The charges, the nature of offending and the proceedings before the sentencing Judge are fully set out in the judgment of Bellew J. The issues and submissions raised by the Crown in this appeal and the respondent’s evidence and submissions are also set out in the judgment of Bellew J and there is no need for repetition.

135. I agree with the reasoning and conclusions reached by Bellew J regarding the inadequacy of the sentence imposed, the residual discretion and the bases of the proposed re-sentencing.

136. I agree with the analysis and reasoning of Leeming JA regarding the inadequacy of the sentence imposed by the sentencing judge. I respectfully disagree with the conclusion reached by Leeming JA in relation to the exercise of the residual discretion.

137. The issue is a difficult one. The Crown did not proceed with alacrity once the sentence was delivered, however the sentence is clearly and unjustifiably lenient. I agree with the comment of Leeming JA at [38] that given the residual discretion to which Crown appeals are subjected, there will be cases when, in the proper exercise of that discretion, erroneous sentences are permitted to stand uncorrected. I agree also that there will be an identification of the relevant principles for the governance and guidance of the sentencing courts available, if sought, in this court’s judgment. This approach does not however sufficiently deal with the public interest in ensuring that crimes involving and perpetuating the abuse of children are adequately punished and that others are deterred from committing such crimes.

138. In all the circumstances I am satisfied that the residual discretion to decline to intervene and re-sentence the respondent should not be exercised. I agree with the sentence and the orders proposed by Bellew J.

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Decision last updated: 23 August 2017