R v Harrison; Ex parte

[2021] QCA 279

SUPREME COURT OF QUEENSLAND

CITATION:

R v Harrison; Ex parte Director of Public Prosecutions (Cth) [2021] QCA 279

PARTIES:

R
v
HARRISON, Rex George
EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
(respondent)
(appellant)

FILE NO/S:

CA No 271 of 2020
SC No 1617 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Appeal by Director of Public Prosecutions (Cth)

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Sentence: 4 November 2020 (Bond J)

DELIVERED ON:

14 December 2021

DELIVERED AT:

Brisbane

HEARING DATE:

21 May 2021

JUDGES:

Fraser and Mullins JJA and Mazza AJA

ORDERS:

1.   The appeal is allowed.

2.   The sentences imposed by Bond J on 4 November 2020 are set aside.

3.   The respondent is resentenced as follows:

Count 1: 7 years' imprisonment

Count 2: 12 months' imprisonment

Count 4: 6 months' imprisonment

Count 5: 12 months' imprisonment

Count 7: 6 months' imprisonment.

4.   The sentences on counts 2, 4, 5 and 7 are all to commence on 4 November 2020. The sentence on count 1 is cumulative on the sentence on count 2, and is to commence on 4 November 2021.  There will be a single non‑parole period of 5 years to commence on 4 November 2020.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – APPEALS BY CROWN – EXERCISE OF DISCRETION – GENERALLY – where the respondent pleaded guilty to five counts related to sexual offences involving children outside Australia – where the respondent was sentenced to a total effective sentence of 6 years and 6 months’ imprisonment with a non-parole period of 2 years and 6 months – whether the sentence imposed and the length of the non-parole period were manifestly inadequate

Crimes Act 1914 (Cth), s 20(1)(b), s 16A

Baden v The Queen [2020] NSWCCA 23, distinguished
Bugmy v The Queen (1990) 169 CLR 525; [1990] HCA 18, considered
DPP (Cth) v Beattie (2017) 327 FLR 71; [2017] NSWCCA 301, distinguished
Hawke v The Queen [2019] VSCA 276, distinguished
House v The King (1936) 55 CLR 499; [1935] HCA 40, applied
Johnson v The Queen (2004) 78 ALJR 616; [2004] HCA 15, considered
Merrill (a pseudonym) v The Queen [2018] VSCA 62, considered
Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, applied
Power v The Queen (1974) 131 CLR 623; [1974] HCA 26, applied
R v Ellis (1986) 6 NSWLR 603, considered
R v Nagy [2004] 1 Qd R 63; [2003] QCA 175, considered
R v Kruezi (2020) 6 QR 119; [2020] QCA 222, cited
Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21, cited

COUNSEL:

L K Crowley QC, with J Goldie, for the appellant
D A Holliday QC, with C J Lovel, for the respondent

SOLICITORS:

Director of Public Prosecutions (Commonwealth) for the appellant
Legal Aid Queensland for the respondent

1. THE COURT:  This is an appeal brought by the Commonwealth Director of Public Prosecutions against sentences imposed by Bond J (as his Honour then was) in the Supreme Court of Queensland.

2. On 2 November 2020, on the first scheduled day of the respondent's trial and after negotiations between the parties, the respondent pleaded guilty to five of seven counts in an indictment presented on 23 October 2019.  The remaining two counts were discontinued.  On 4 November 2020, his Honour imposed the sentences the subject of this appeal.

3. The details of the charges and of the sentences are set out in the table below:

Count No	Dates	Offence	Maximum Penalty	Victim	Sentence
Count 1	Between 31/10/16 and 03/08/17	Persistent sexual abuse of a child outside Australia, contrary to s 272.11(1) of the Criminal Code (Cth)	25 years' imprisonment	R	6 years 6 months' imprisonment
Count 2	Between 02/07/17 and 27/08/17	Use of a carriage service to cause child pornography material to be transmitted to self, contrary to s 474.19(1) of the Criminal Code (Cth)	15 years' imprisonment	B	6 months' imprisonment
Count 4	On or about 25/07/17	Using a carriage service to transmit child pornography material contrary to s 474.19(1) of the Criminal Code (Cth)	15 years' imprisonment	M	6 months' imprisonment
Count 5	Between 21/08/17 and 01/10/17	Encouraging an offence against Division 272 of the Code, contrary to s 272.19(1) of the Criminal Code (Cth)	20 years' imprisonment	R	6 months' imprisonment
Count 7	On or about 05/10/17	Possessing child exploitation material, contrary to s 228D of the Criminal Code (Qld)	14 years' imprisonment	R	6 months' imprisonment

1. His Honour ordered that all of the sentences be served concurrently, to commence on 4 November 2020. Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), his Honour fixed a single non‑parole period of 2 years 6 months. Thus, the total effective sentence that was imposed was 6 years 6 months' imprisonment with a non‑parole period of 2 years 6 months to commence on 4 November 2020.

2. The appellant relies on a single ground of appeal, alleging that the individual sentences, the total effective sentence (6 years and 6 months' imprisonment) and the non‑parole period were 'manifestly inadequate'.

3. For the reasons that follow, we would allow the appeal and resentence the respondent.

   The facts

4. A statement of facts was tendered to the sentencing judge on 4 November 2020.  We will first set out the facts of counts 1, 5 and 7, all of which relate to the complainant R, and then the facts of counts 2 and 4, which relate to complainants B and M, respectively.

   Counts 1, 5 and 7

5. At all material times, the respondent, an Australian citizen, was 62 or 63 years of age.  The victim of counts 1, 5 and 7 was a Filipino girl aged between 14 and 15 years, R.  She lived in Angeles City in the Philippines.

6. Count 1 concerned three occasions between about 1 November 2016 and 2 August 2017, when the respondent engaged in sexual intercourse with R in a hotel room in Angeles City.  The first of these occasions occurred on an unknown date between 1 November 2016 and 30 November 2016.  The respondent met R, who was accompanied by a friend, A.  He invited them both to his hotel room.  Prior to their arrival at the hotel, the respondent bought shirts for R and A.

7. At around 11.00 pm, they arrived at the respondent's hotel room.  The respondent asked R and A for a massage.  He told R that he wanted to 'touch' her because he believed she was a virgin and stated he wanted to have sex with her.  R refused to have sex with him.  The respondent then placed his hand inside R's shorts and inserted his fingers into her vagina.  R tried to stop the respondent and to remove his hand, but he refused to stop.  The respondent also placed his hand inside her shirt and touched her breast.  After this conduct finished, the respondent paid R 500 pesos (about AU$14.64).  R and A then left the room.

8. On 22 July 2017, the respondent returned to the Philippines and stayed at the same hotel in Angeles City.  Both before and after his arrival in the Philippines, the respondent communicated with R via Facebook Messenger.  These discussions were highly sexualised and graphic.  His Honour was provided with extracts from the messages which show, on the respondent's part, a desire to 'pop' R's 'cherry', engage in cunnilingus with her and have her engage in fellatio with him.

9. The respondent arranged for R to meet him at his hotel room at about 4.00 pm on 30 July 2017.  In a Facebook message to R dated 26 July 2017, he said that when he meets her he needed 'to see blood' and asked how much he would have to pay R to 'pop' her 'cherry'.

10. The second act of sexual intercourse took place on 30 July 2017, R and M arrived at the respondent's hotel room.  R was reluctant to remove her clothes.  The respondent removed her shirt and bra and offered to give her money.  He then told her to remove her shorts and underwear, which she did.  The respondent touched R's breasts and vagina.  He attempted to insert his penis into her mouth, but R refused.  The respondent then inserted his penis into her vagina.

11. Once the act of sexual intercourse ended, R put her underwear and shorts back on and lay on the bed with the respondent, without her shirt and bra on.  The respondent hugged and kissed her.  While they were in bed together, R used the respondent's mobile telephone to take a photograph of them.  Later, the respondent paid R 1,000 pesos (about AU$29.27) and $5.

12. Between 31 July 2017 and 1 August 2017, the respondent arranged for R to meet him on 2 August 2017, when the third act of sexual intercourse took place.

13. On this occasion, R and the respondent met at a bar, where they had some drinks.  They went back to the respondent's hotel room with two other women whom they had met at the bar.  After dinner in the respondent's hotel room, the two other women left.  While in the respondent's hotel room, the respondent instructed R to remove her clothes, which she did.  He then inserted his finger into R's vagina and asked her to perform fellatio, before inserting his penis into her vagina.  Following the sexual intercourse, the respondent paid R 1,500 pesos (about AU$43.91), after which she left.

14. After this act of sexual intercourse, the respondent continued to have conversations with R via Facebook Messenger about possibly meeting again to engage her in sexual intercourse for money.  Extracts of these messages are, again, sexually graphic.  When R wrote that she was scared of getting pregnant, the respondent wrote that he wanted to have sexual intercourse with her and 'give you a baby'.

15. As to count 5, between 21 August 2017 and 1 October 2017, the respondent communicated with R via Facebook Messenger.  The object of these communications was for R to procure another female child to engage in sexual activity with him.  In the course of these communications, the respondent, in explicit sexual language, encouraged R to find him 'a young schoolgirl, 13 or 14 only' with small breasts and either little or no pubic hair.  The respondent told R that he wanted to engage in sexual activity with such a girl, but not sexual intercourse.  The respondent asserted that she would have schoolfriends or friends near her home whom she could procure for him.  The respondent offered to pay money to both R and the girl.

16. On 21 September 2017, R told the respondent that she had found a girl for him.  Later, R confirmed that the girl was 14 years old.  On 26 September 2017, the respondent told R that he would be in the Philippines on 6 October 2017 and that he would inform her of his hotel room number.  R asked him to bring some chocolates and gifts from Australia.

17. On 5 October 2017, the respondent, consistently with his messages with R, attended at Brisbane International Airport to fly to the Philippines.  There he was stopped and arrested by police.  Police located a large quantity of chocolates in the respondent's luggage.

18. As to count 7, the photograph of the respondent and R in bed referred to in [14] above was subsequently located by police on the respondent's mobile telephone following his arrest on 5 October 2017, along with four other photographs of R.  All five photographs were categorised as level 1 within ANVIL or CETS.[1]  All of the photographs depicted R naked, but not engaged in any sexual activity.  The metadata for three of the five images indicated that they had been taken on 30 July 2017, the same day as the second act of sexual intercourse the subject of count 1.

    [1]Australian National Victim Image Library or the Child Exploitation Tracking System.

    Counts 2 and 4

19. Count 2 involves another female Filipino child, B.  B's precise age is unknown, but it is clear from the Facebook Messenger conversations the respondent had with her between 2 July 2017 and 30 August 2017 that she was under the age of 18 years and was a schoolgirl.

20. In the course of the conversations between the respondent and B, he repeatedly requested her to send him naked images of her.  The request would often include specific instructions of what part of her body the child should photograph and how she should pose.  B complied with the respondent's request and sent him 19 photographs of her breasts and genitals, along with photographs of her defecating.

21. The requests for photographs were regularly accompanied by inducements from the respondent or by threats and emotional manipulation of her.  For example, he threatened to 'unfriend' her, pointing out that if he did so there would be 'no shoes no more money no phone but bye bye'.  In one conversation in which the respondent sought photographs of B's 'rectum' and genitals, he promised to send money and bring her 'a nice surprise'.  The respondent also said that if B sent him 'good photos', he would bring her an iPhone 7 Plus for her and M.

22. As to count 4, on or about 25 July 2017, the respondent sent one image of child pornography material to another person via Facebook Messenger.  The image depicted a naked pubescent female child sitting on her knees on a bed, leaning back.  The focus of the image was on the child's breasts and vagina.  After the image was sent, the recipient, upon being told that the child was only 16 years of age, responded, 'Seriously? That's child abuse…hahaha.'  The respondent told the recipient that the child's parents gave him permission to take the photograph.

23. The respondent's offending came to light as a result of information provided to the Australian Federal Police Child Protection Assessment Centre from the United States National Centre for Missing and Exploited Children.  As we have mentioned, on 5 October 2017, members of the AFP arrested the respondent at Brisbane International Airport.  The respondent participated in a digital record of interview in which he agreed that he travelled to the Philippines and stayed at a hotel in Angeles City.  He falsely denied having a sexual relationship with R.  Although he agreed that he had engaged in Facebook Messenger conversations with her, he, in effect, falsely denied that R was a child and said that the conversations were jocular.

    The respondent's personal circumstances

24. The respondent was born in Sri Lanka in 1954.  His parents died in his teenage years.  He left school at year 11 and trained as a chef.  Throughout his working life, up until 2019, he worked as a chef in hotels, cruise ships and on mine sites.

25. In February 1988, the respondent moved to Australia.  He has three children from his marriage, which ended in divorce in 1988.  At the time he was sentenced, the respondent lived alone in a retirement village.

26. At the time of the commission of the offences, the respondent was working on a mine site in Papua New Guinea on a fly‑in/fly‑out basis.  During this time he became a regular visitor to Angeles City in the Philippines.

27. As mentioned, the respondent stopped work in 2019.  He was granted an aged pension in March 2020.

28. The respondent has a short and irrelevant criminal history in Queensland.  He did not commit any offences on bail awaiting trial and sentence.

29. At the time of his sentence, the respondent was 66 years of age.  He had been fitted with a heart stent many years ago and is required to take daily medication for his blood pressure and cholesterol.  Tests carried out before his sentencing revealed the presence of pre‑cancerous polyps in his bladder which require monitoring in the future.

    The sentencing remarks

30. The sentencing judge set out the facts of the offending and the respondent's personal circumstances.  He gave credit to the respondent for his pleas of guilty, but found that the pleas had been entered late.  His Honour acknowledged that, although the respondent had not been entirely truthful with the police, he should be given credit for some cooperation.  His Honour observed that the respondent had, to some extent, cooperated, 'in the logistics for the trial at a time when the trial was going to take place'.  His Honour found that there was no additional mitigation to be found by reason of remorse on the part of the respondent.  His Honour found that the respondent has a sexual interest in female children, including a sexual interest in taking the virginity of girls as young as 13 and 14.

31. His Honour said this about the offending:

    “None of your offending can be described as a fleeting aberration.  You were persistent in your offending, you were repeated in your offending, you were predatory in your offending, taking advantage of, as I have mentioned earlier, the power and economic imbalance between you and your victims.  Your victims were particularly vulnerable to sexual exploitation because of their age and relatively disadvantaged economic circumstances.”

32. His Honour emphasised the sentencing objectives of general and specific deterrence and the need to adequately punish the respondent.

33. His Honour referred to the respondent's irrelevant prior record and that this suggested that the respondent had prospects of rehabilitation.

34. His Honour referred to a schedule of comparable cases that had been provided by the prosecutor.  He said that of these cases, the most helpful was Merrill (a pseudonym) v The Queen.[2]

    [2]Merrill v The Queen [2018] VSCA 62.

1. His Honour noted defence counsel's submission that he should not impose a total effective sentence of more than 6 years' imprisonment and that the non‑parole period should be in the range of 2 years to 2 1/2 years.  His Honour noted defence counsel's submission that the appropriate course would be to sentence the respondent to 6 years' imprisonment on count 1 and lesser concurrent sentences on counts 2, 4 and 5, and a sentence of 6 months for count 7.

2. His Honour said that he did not think that the suggested disposition was a sufficient reflection of the sentence that was necessary in the case.  His Honour said that a sentence of 6 years' imprisonment for count 1 would be appropriate if count 1 had been the only offence that had been committed.  However, his Honour said that he had to have regard to the other offences committed by the respondent.  His Honour said that there were two ways he could do this.  The first was to 'deal with [the] commencement dates of the minor offending in [a] way that I think is appropriate to increase what otherwise would be the appropriate six year sentence for count 1' or increase the sentence on count 1 to an appropriate degree and impose sentences for the other counts to be served concurrently with the sentence that he proposed in relation to count 1.  His Honour adopted this second approach and, thus, instead of sentencing the respondent to 6 years' imprisonment on count 1, he was sentenced to 6 years 6 months' imprisonment with the other sentences to be served concurrently.

3. His Honour's approach is consistent with that described in R v Nagy.[3]  This approach provides that when a court is sentencing an offender for a number of distinct, unrelated offences, the court may fix a sentence for one offence being the most serious or the last in time which is higher than the sentence that would have been fixed had it stood alone and which reflects the overall criminality involved in the offending as a whole.  Then the sentence on all other counts may be made concurrent.  Recently in R v Kruezi,[4] this court held that it was open to a sentencing judge to apply the Nagy approach when sentencing a Federal offender.

   [3]R v Nagy[2004] 1 Qd R 63 [39] (Williams JA).

   [4]R v Kruezi [2020] QCA 222.

4. His Honour then turned to the question of the appropriate non‑parole period.  As to this, his Honour said:

   “Having regard to the considerations to which your counsel has drawn my attention, your age and your prospects of rehabilitation and the utility of your plea notwithstanding it is late, I propose to sentence you to a non‑parole period of two-and-a-half years.”

   The appellant's submissions

5. In the written submissions filed on behalf of the appellant it is contended that 'the individual sentences, the total effective sentence and the non‑parole period are manifestly inadequate'.  It was submitted that appellate intervention was necessary to maintain proper standards of punishment with consistency in the application of relevant principles applicable to the sentencing of Federal offenders convicted of offences of this nature.

1. In oral submissions, senior counsel for the appellant, Mr Crowley QC, focussed on the inadequacy of the individual sentence imposed on count 1 'and in particular [the inadequacy] of the non‑parole period'. Senior counsel for the appellant submitted that the notional starting point for count 1 of 6 years' imprisonment was manifestly inadequate, and that the uplift of 6 months to that sentence did not adequately reflect the additional cumulacy involved in counts 2, 4 and 5. As the offending involved three children, there should have been a greater degree of cumulation than was reflected in the sentence that was ultimately imposed on count 1. Moreover, to have ordered that the sentences on counts 2 and 4 be served wholly concurrently on the sentence imposed on count 1 failed to properly reflect the seriousness of the respondent's overall offending and failed to fulfil the important sentencing objectives of adequate punishment and general deterrence. It was submitted that the total effective sentence was not of a 'severity appropriate in all the circumstances of the offence' as required by s 16A(1) of the Crimes Act.

2. As to the non‑parole period, a term of 2 years 6 months' imprisonment was not proportionate to the objective circumstances of the offence.  Senior counsel for the appellant pointed out that the non‑parole period imposed by his Honour was about 38% of the head sentence, and it was submitted that the lenience of the non‑parole period was not justified having regard to the objective seriousness and circumstances of the offending, even when regard is had to the mitigating factors.

3. The appellant acknowledged that there were very few comparable cases involving offences of the kind committed by the respondent.  He made reference to DPP (Cth) v Beattie;[5] Merrill v The Queen; Hawke v The Queen[6] and Baden v The Queen.[7]

   [5]DPP (Cth) v Beattie (2017) 327 FLR 71.

   [6]Hawke v The Queen [2019] VSCA 276.

   [7]Baden v The Queen [2020] NSWCCA 23.

Respondent's submissions

1. Senior counsel for the respondent, Ms Holliday QC (as her Honour then was), while acknowledging the seriousness of the offending, emphasised the respondent's personal circumstances, in particular that he has no relevant criminal history, his age, his health and what was said to be his favourable prospects of rehabilitation.

2. Senior counsel for the respondent placed some store, as did the sentencing judge, in the outcome in Merrill v The Queen, suggesting, in effect, that the outcome in that case did not point in favour of a conclusion that the sentence imposed on count 1 was manifestly inadequate.

   The ground of appeal

3. The ground of appeal alleged implied or inferred error on the part of the sentencing judge of a kind described by Dixon J in House v The King.[8]  In the context of imposing a sentence, the appellant must show that the sentence under challenge is unreasonable or plainly unjust as to enable the appellate court to infer that, in some way, the sentencing discretion has not been properly exercised.

   [8]House v The King [1935] HCA 40; (1936) 55 CLR 499, 505.

4. Because of the fundamental importance of the discretion conferred upon sentencers at first instance, an appellate court cannot intervene merely because it would have exercised the discretion differently.

5. The ground of appeal alleges that the individual sentences, the non‑parole period and the total effective sentence were manifestly inadequate.  We take the challenge to the total effective sentence to be an allegation that it infringed the totality principle, as described by the High Court in Mill v The Queen.[9]

   [9]Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59.

6. In Pearce v The Queen,[10] McHugh, Hayne and Callinan JJ stated that a judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well as totality.[11]  Their Honours emphasised the importance of fixing an appropriate sentence for each offence before the totality principle is applied.  The preferred approach to the application of the totality principle is to achieve an appropriate total effective sentence by making sentences wholly or partially concurrent.[12]  Another approach is to lower the individual sentences below what would otherwise be appropriate.[13]

   [10]Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610.

   [11]Pearce [45].

   [12]Mill (63).

   [13]Mill (63).

7. In Johnson v The Queen,[14] Gummow, Callinan and Heydon JJ stated that:

   “The preferable course will usually be the one which both cases [Mill v The Queen and Pearce v The Queen] commend, but neither absolutely commands.”

   [14]Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 [26].

8. Their Honours went on to state:[15]

   “Judges of first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected.”

   [15]Johnson [26].

9. The Nagy approach adopted by his Honour is another approach to the application of the totality principle. However, as McMurdo and Mullins JJA made clear in their joint judgment at [30]:[16]

   “The approach endorsed in Nagy of selecting a higher sentence for the most serious offence to take into account the overall criminality for all offending for which the offender is then being sentenced can apply to sentencing for Commonwealth offences, but only if it results in a sentence for each offence “that is of a severity appropriate in all the circumstances of the offence” in compliance with s 16A(1) of the Act, including the totality principle in its various aspects. Where the sentencing involves more than one federal offence, s 16A(1) applies to the sentence for each offence, but in the context of the sentences imposed for all offences in the same sentencing.”

   [16]R v Kruezi [2020] QCA 222 [30].

10. As to the length of a non‑parole period, there is no judicially‑determined norm or starting point, expressed as a percentage or otherwise, for the period of imprisonment to be served before release on parole.  The general principles applicable to the fixing of a non‑parole period have been described by the High Court in Power v The Queen[17] and Bugmy v The Queen.[18]  The purpose of a non‑parole order is to 'provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence'.[19]

    [17]Power v The Queen [1974] HCA 26; (1974) 131 CLR 623.

    [18]Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525.

    [19]Power (629).

11. The considerations which a sentencing judge must take into account when fixing a non‑parole period will be the same applicable to the setting of the sentence.  However, the weight to be given to these factors and the manner in which they are relevant will differ in consequence of the different purposes underlying each function.[20]  The sentencing factors which count against mitigation may increase the length of the head sentence and also the proportion that the non‑parole period bears to the head sentence.  The converse applies to sentencing factors in favour of mitigation.  Any necessary deterrent and punitive effects of sentences for a particular offence must be reflected both in the head sentence and also in the non‑parole period.[21]

    [20]Bugmy (531).

    [21]Lam v The Queen [2014] WASCA 114; (2014) 241 A Crim R 562 [56] ‑ [57]. See also Hili v The Queen (2010) 242 CLR 520 [41].

    Sentencing Federal offenders - some general principles

12. Division 2 of pt IB of the Crimes Act sets out the general sentencing principles that are to be applied in sentencing federal offenders. The overarching principle is contained in s 16A(1):

    “16AMatters to which court to have regard when passing sentence etc.—federal offences

    (1)In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.”

13. Section 16A(2) provides a non‑exhaustive list of matters that a sentencer is bound to take into account if those matters are known and relevant.

14. The expression 'of a severity appropriate in all the circumstances of the offence', and some of the expressions used in s 16A(2) such as 'the need to ensure that the person is adequately punished for the offence', means that s 16A of the Crimes Act accommodates the application of common law principles of sentencing, including the totality principle.

15. Where, as in this case, a court imposes federal sentences that, in aggregate, exceed 3 years, and the offender is not already serving or subject to a federal sentence, the court must (subject to s 19AB(3) [of the Crimes Act]) fix a single non‑parole period.

    Ground of appeal - disposition

16. The focus of the appellant's submissions was on the 'global head sentence', that is, the sentence of 6 years 6 months' imprisonment imposed on count 1 and the non‑parole period of 2 years 6 months' imprisonment.[22]

    [22]The expression 'global sentence' is often used in the application of the Nagy principle: R v Kruezi [31].

17. As to the length of the sentence, the appellant submitted, in effect, that the sentence of 6 years 6 months' imprisonment was a manifestly inadequate sentence for count 1, even if it stood alone.  In any event, as a reflection of the respondent's overall criminality, it was submitted that it infringed the totality principle.

18. We will first address the question of whether the sentence on count 1 was, in itself, manifestly inadequate.  In examining the sentence, we are, of course, aware that his Honour said that, had the offence stood alone, he would have imposed a sentence of 6 years' imprisonment.  However, the question must be considered on the basis that the sentence that was actually imposed, 6 years 6 months' imprisonment, was inadequate, having regard to its own facts and circumstances.

19. An orthodox approach to whether an individual sentence is manifestly excessive or inadequate is to examine it, having regard to the maximum sentence for the offence, the gravity of the offending conduct on the scale of seriousness and the personal circumstances of the offender.[23]  Where there are sufficient comparable cases, it will be relevant, but not essential, to a claim of manifest inadequacy to demonstrate that an individual sentence was inconsistent with the outcomes in those cases,[24] bearing in mind that such outcomes do not fix the boundaries within which future judges must, or even ought, to sentence.[25]  The absence of sufficient comparable cases does not mean that manifest inadequacy cannot be demonstrated.  It still may be shown by consideration of all of the relevant features of the case.[26]

    [23]Munda v Western Australia [2013] HCA 38; (2013) 249 CLR 600 [33].

    [24]Munda v Western Australia [39].

    [25]DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 [304], approved in Hili [54].

    [26]Hili [60].

20. As already stated, at the time of the commission of the offence, the maximum penalty for an offence contrary to s 272.11(1) of the Criminal Code (Cth) was 25 years' imprisonment.

21. The facts and circumstances of count 1 show a serious example of an offence of its type.  In this regard, the facts speak for themselves.  To the extent that elaboration is required, the offending in count 1 involved the appellant:

    (a)travelling to the Philippines with the intention of engaging in sexual behaviour with a child;

    (b)engaging in three separate acts of sexual penetration[27] of a 14‑year‑old girl over a period of about nine months;

    (c)paying the victim, R, a small (by Australian standards) sum of money at the conclusion of each act;

    (d)exploiting R, a girl who, by reason of her age and economic circumstances, was vulnerable to his predations;

    (e)planning the offending, particularly before both the second and third acts of sexual intercourse; and

    (f)engaging in the highly sexualised and graphic communications referred to at [11] – [18] above.

    [27]As defined by s 272.4 of the Criminal Code (Cth).

22. The dominant sentencing consideration for offences contrary to s 272 of the Criminal Code (Cth) is, in the case of those who travel overseas to sexually exploit children, to deter such behaviour by sending a message that those who offend in this way will be prosecuted in Australia and, if convicted, they will receive significant punishment, the whole object being to protect vulnerable children from exploitation.[28]

    [28]See, generally, the Second Reading Speech of Mr Brendan O'Connor, Minister for Home Affairs, Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010, 4 February 2010.

23. We have read and considered the limited number of cases cited by the appellant.  In our opinion, the limited number of such cases, the variation in the charged offences and their different factual circumstances, makes meaningful comparison with the present case problematic.

24. In Hawke v The Queen, the real issue was whether a sentence imposed for a State offence was erroneous.  The offending in Baden v The Queen and DPP (Cth) v Beattie, particularly the latter case, was worse than the offending in the present case.

25. The closest comparable case is Merrill.  But, as will be seen, even this case has some significant differences.

26. In Merrill, the appellant pleaded guilty to one count of engaging in sexual intercourse with a child outside Australia, contrary to s 272.8(1) of the Criminal Code (Cth) (maximum penalty 20 years' imprisonment), one count of engaging in sexual activity with a child outside Australia, contrary to s 272.9(1) of the Criminal Code (Cth) (maximum penalty 15 years' imprisonment), one count of producing child pornography material outside Australia, contrary to s 273.5(1)(a)(ii) of the Criminal Code (Cth) (maximum penalty 15 years' imprisonment), and one count of knowingly possessing child pornography, contrary to s 70(1) of the Crimes Act 1958 (Cth) (maximum penalty 5 years' imprisonment). The offending, which spanned five separate visits to Vietnam over 10 months, involved the appellant repeatedly having sex with a child aged 15 years. The offender was sentenced, on the s 272.8(1) offence, to 5 years' imprisonment and to a total effective sentence of 5 years 3 months' imprisonment with a single non‑parole period of 3 years' imprisonment. In sentencing the offender, the sentencing judge took into account the appellant's 'fragile' psychological condition and physical health issues as providing context for the offending. The offender had no criminal history, a low risk of reoffending and good prospects of rehabilitation. The sentencing judge found that the offender's plea of guilty at the first reasonable opportunity was indicative of genuine remorse. Significantly, the offender voluntarily disclosed the offending to authorities and provided extensive cooperation, for which he received a discount in accordance with the principles in R v Ellis and Ryan v The Queen.[29]

    [29]R v Ellis (1986) 6 NSWLR 603, 604, and Ryan v The Queen (2001) 206 CLR 267 [12], [15] and [93].

27. The offender relied on a sole ground of appeal which alleged that the individual sentence imposed on the offence of engaging in sexual intercourse with a child outside Australia and engaging in sexual activity with a child outside Australia were manifestly excessive.  The Victorian Court of Appeal (Weinberg JA & Kidd AJA) considered the sentencing judge's assessment of the appellant's cooperation with authorities and concluded that:

    “[A]bsent the powerful Ellis mitigating factor … it would have been at least open to her Honour to impose demonstrably higher sentences.”

28. Their Honours were 'ultimately unpersuaded that proper weight [had] not been given to all the relevant circumstances (including the Ellis discount)' and dismissed the appeal.

29. Arguably, the offending in Merrill was not as serious as the offending in the present case.  Regardless, the mitigating circumstances in Merrill were substantially more favourable than those available to the respondent.  Of course, the offence committed by the offender in Merrill which resulted in the imposition of the 5-year sentence was for a different offence than the one committed by the respondent and had a somewhat lower maximum penalty.

30. In the end, we have derived little guidance from the cases cited to this court. Sentencing patterns for offences contrary to s 272.11(1) of the Criminal Code (Cth) do not emerge from these cases. The absence of sentencing patterns does not prevent a conclusion that the sentence on count 1 was manifestly inadequate.

31. In our opinion, a sentence for count 1 of 6 years' imprisonment or, as actually imposed, 6 years 6 months' imprisonment, was, in all of the circumstances of the case, lenient, particularly having regard to the objective seriousness of the respondent's offending and the limited mitigation that was available to him.  However, we have not been persuaded that the sentence imposed for the offending that constituted count 1 was so low as to be unjust and unreasonable.  Inferred error has not been demonstrated.  The claim of manifest inadequacy is not made out.

32. However, we consider that a sentence of 6 years 6 months' imprisonment does not adequately reflect the respondent's overall criminality.

33. We consider that a term of imprisonment of 6 years 6 months infringes the totality principle.

34. In addition to count 1, the respondent committed other offences, the most serious of which were count 2 and count 5.

35. Each of these offences involved offending of a different kind to count 1.  Count 5 involved communications with R for the purpose of procuring another female child to engage in sexual activity with him.  The respondent was particular in having R find him a 13 or 14‑year‑old schoolgirl with the specified physical attributes described in [18] above.  The persistence with which he sought R's 'assistance' shows that the respondent's demands were serious.  It appears that R found a child, in accordance with the respondent's requirements, who was willing to engage in sexual activity with him.  Whether this was in fact so, is not known.  However, the respondent appears to have believed that his efforts had succeeded.

36. The respondent's conduct had the distinct tendency to further corrupt R.  It is bad enough that he had engaged in sexual intercourse with her.  It is substantially worse conduct to then engage her to act as his procurer of other children to engage in sexual activity with him and to do so for money.  Further, the respondent's conduct had the potential to corrupt the female child R said she had procured.  Even if she had not actually procured a child, the respondent's behaviour gave rise to the possibility that another child would be corrupted.

37. Then there is count 2.  Count 2 involved another female Filipino child, B.  This offending occurred over a relatively extended period of time.  The respondent used a combination of inducements, threats and emotional manipulation to coerce the victim into taking pornographic images of herself according to the respondent's specific instructions including images of her defecating.  The respondent exploited B for his own depraved sexual interests.

38. The maximum penalty for count 5 was 20 years' imprisonment and, for count 2, 15 years' imprisonment.  It is clear from these maxima that Parliament regarded offences of this kind very seriously.

39. We recognise that his Honour increased the sentence he would otherwise have imposed on count 1 by 6 months to take into account the other offences committed by the respondent.  With great respect to the primary judge, in our opinion, this was not an adequate reflection of the respondent's additional criminality and, in particular, counts 2 and 5.  Significant additional punishment was required for the respondent's additional criminal behaviour.  We have arrived at this conclusion having regard to all of the mitigating factors that were available to the respondent.

1. Having considered all of the relevant circumstances, we are of the opinion that the total effective sentence of 6 years 6 months' imprisonment does not bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, and having regard to all relevant facts and circumstances, including the mitigating factors, and all relevant sentencing considerations, including, importantly in this case, the need to provide proper punishment and general deterrence.  In our opinion, implied error has been established and this court's power to resentence the respondent in respect of all offences has been enlivened.

2. As the respondent must be sentenced afresh, it is, strictly speaking, unnecessary to deal with the respondent's contention that the non‑parole period imposed by the sentencing judge was manifestly inadequate.  However, in case we are in error in deciding that the global sentence does not adequately reflect the respondent's overall offending, we will briefly deal with the alleged inadequacy of the non‑parole period that was imposed by his Honour.

3. In our opinion, even if the global sentence of 6 years 6 months' imprisonment stands, a non‑parole period of 2 years 6 months, which is approximately 38% of the total sentence, does not, in our opinion, properly reflect the substantial seriousness of the respondent's overall offending, and has the effect of undermining the sentencing objectives of proper punishment and the need to provide general deterrence.

4. Put another way, the non‑parole period was disproportionate to the gravity of the respondent's overall offending and was substantially below the period that justice required the respondent to serve before release on parole.

5. In arriving at this conclusion, we have taken into account the respondent's personal circumstances and the mitigating factors.  As we have already said, there was only modest mitigation to be found in the pleas of guilty and his personal circumstances, including his prospects of rehabilitation.  These factors could not, to our minds, justify the imposition of what, on any view, was a very low non‑parole period.

6. In our opinion, if the global sentence of 6 years 6 months' imprisonment remained, we would have imposed a single non‑parole period of 4 years' imprisonment.

   The residual discretion

7. It is for the appellant to demonstrate that the residual discretion should not be invoked.  The respondent made no submission concerning the residual discretion.  In our opinion, the residual discretion should not be invoked in this case.  The total effective sentence was, in our view, substantially below that which the justice of the case required and, for this court to not intervene, would undermine the principles of proper punishment and general deterrence which are the dominant sentencing considerations in cases such as this.

   Resentencing

8. We have considered all of the relevant facts and circumstances of the respondent's offending, including the mitigating factors.  We do so, bearing in mind the need to provide proper punishment and general deterrence.  We have applied the general principles applicable to Commonwealth offenders.  We would impose the following sentences before taking into account questions of concurrency, cumulacy and totality:

Count 1	7 years' imprisonment
Count 2	18 months' imprisonment
Count 4	6 months' imprisonment
Count 5	18 months' imprisonment
Count 7	6 months' imprisonment

1. We would adopt a different approach to the sentencing judge on the question of totality.  We would adopt the approach described in Pearce v The Queen.

2. In our opinion, a total effective sentence of 8 years' imprisonment is of an appropriate severity in all of the circumstances of the offending and properly reflects the respondent's overall criminality.  In order to achieve this outcome, we would reduce, for totality reasons only, the sentences that we would have imposed on counts 2 and 5 to 12 months' imprisonment respectively.  The sentences on counts 1 and 2 should be served cumulatively, the balance of the sentences should be served concurrently.

3. We would impose a single non‑parole period.  In our opinion, a single non‑parole period of 5 years' imprisonment is the minimum time that justice requires the respondent to serve, having regard to all of the circumstances of the offence.

   Conclusion and orders

4. For the reasons we have given, the appeal should be allowed.  The orders we make are as follows:

   1.      The appeal is allowed.

   2.      The sentences imposed by Bond J on 4 November 2020 are set aside. 

   3.      The respondent is resentenced as follows:

   Count 1:7 years' imprisonment

   Count 2:12 months' imprisonment

   Count 4:6 months' imprisonment

   Count 5:12 months' imprisonment

   Count 7:6 months' imprisonment

   4.The sentences on counts 2, 4, 5 and 7 are all to commence on 4 November 2020. The sentence on count 1 is cumulative on the sentence on count 2, and is to commence on 4 November 2021. There will be a single non‑parole period of 5 years to commence on 4 November 2020.

5. For the avoidance of any doubt, the respondent is resentenced to a total effective sentence of 8 years' imprisonment to commence on 4 November 2020, with a non‑parole period of 5 years to commence on 4 November 2020.