R v HOGAN - [2015] SASCFC 102

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v HOGAN
[2015] SASCFC 102
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Parker)
29 July 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES - CONCURRENT SENTENCES
The appellant pleaded guilty to one count of aggravated possession of child pornography contrary to s 63A(1)(a) of the Criminal Law Consolidation Act 1935 (SA) and one count of using a carriage service to access child pornography material contrary to s 474.19(1)(a)(i) of the Criminal Code (Cth). The appellant was a Jesuit priest and rector of a college. He had amassed a substantial collection of child pornography over many years, including magazines, books, printed images, video tapes and downloaded images. Most of the images were rated at the lowest level of seriousness, but some of the magazines contained images in the most serious categories. The appellant pleaded guilty at an early stage, voluntarily entered into a supervision regime with the leaders of the Jesuit community and had a low risk of re-offending. For the first offence he was sentenced to imprisonment for one year and nine months (after a 25% discount for an early guilty plea) with a non-parole period of 10 months. For the second offence he was sentenced to one year and nine months imprisonment, to be released upon serving one month and upon entering into a $100 recognisance to be of good behaviour. The two sentences were partly concurrent with a combined head sentence of two years and six months imprisonment. The appellant applied for permission to appeal against the sentences on the ground that the sentencing judge erred in declining to suspend the sentence, imposing a sentence that was manifestly excessive, not making the sentences wholly concurrent, imposing the same head sentence for the two offences and not allowing the maximum discount for the early guilty plea.
Held (per Parker J, Kourakis CJ and Nicholson J concurring) (allowing the appeal):
(1) General deterrence is a paramount consideration for offences of this kind. Only limited weight can be given to the appellant's prior good character. Offences committed over a significant period of time, involving a substantial amount of pornographic material and involving child pornography of the most serious kind should attract a term of imprisonment. The term of imprisonment of two years and four months was not manifestly excessive. [62]-[64]
R v Padberg [2010] 107 SASR 386, followed.
Director of Public Prosecutions v D'Alessandro [2010] VSCA 60, followed.
(2) Given the timing of the appellant's guilty plea to the State offence and having regard to his co-operation with police, he should have received the maximum discount of 30% or close to it. The term for the State offence should be reduced to one year and eight months. [65]
(3) The conduct which gave rise to the Commonwealth offence was far less serious than that involved in the State offence. The sentencing judge erred in imposing the same head sentence for both the State offence and the Commonwealth offence. The term for the Commonwealth offence should be six months. [67]-[69]
R v Padberg [2010] 107 SASR 386, followed.
(4) While legally there were two different offences constituted by separate conduct, these were simply different manifestations of the same course of conduct engaged in by the appellant. The sentences for the State and Commonwealth offences should be wholly concurrent. [70]
(5) A wholly suspended sentence is appropriate given that much of the material was classified at the lowest level of seriousness, the appellant’s early guilty plea and co-operation with police, and the personal circumstances of the appellant, including his low risk or re-offending. [71]-[72]
R v Padberg [2010] 107 SASR 386, followed.
(6) The State offence should be suspended upon entry into a bond to be of good behaviour. For the Commonwealth offence the appellant should be released immediately. As no useful purpose would be served by a very short recognisance period, discretion should be exercised not to require a recognisance period. [73] and [78]
(7) The sentences should be reduced in recognition of time served. [74]
Criminal Law Consolidation Act 1935 (SA) s 63A; Criminal Code 1995 (Cth) s 474.19(1)(a)(i); Summary Offences Act 1953 (SA) s 33; Criminal Law Sentencing Act 1988 (SA) s 10(2)(c), s 10C(2)(b); Crimes Act 1914 (Cth) s 16A(2)(g), s 19AC(3), s 19AF(1), referred to.
R v Padberg [2010] 107 SASR 386; Director of Public Prosecutions v D'Alessandro [2010] VSCA 60, applied.

R v HOGAN
[2015] SASCFC 102
Court of Criminal Appeal: Kourakis CJ, Nicholson and Parker JJ

KOURAKIS CJ: I agree that the appeal should be allowed for the reasons given by Parker J. I would join in the sentencing orders he proposes.
NICHOLSON J: I agree with Parker J.
PARKER J: This is an appeal against the sentence imposed by the District Court following a plea of guilty to two child pornography offences. For the reasons that follow I would uphold the appeal, set aside the sentences imposed by the District Court and re-sentence the appellant.
Background
The appellant pleaded guilty to the following charges:
Count 1
Aggravated possession of child pornography on 21 August 2013 contrary to s 63A of the Criminal Law Consolidation Act 1935 (the State offence); and
Count 2
Using a carriage service to access child pornography material between 20 April 2012 and 10 June 2012 contrary to s 474.19(1)(a)(i) of the Criminal Code (the Commonwealth offence).
The maximum penalty for the aggravated State offence is imprisonment for a term of seven years, while the Commonwealth offence carries a maximum penalty of fifteen years imprisonment and/or a fine of $99,000.
Grounds of appeal
The initial grounds of appeal were:
(1) The learned sentencing judge erred in declining to suspend the sentence having regard to:
(a)The delay between the offending and the date of sentence, and the rehabilitation of the applicant during that time;
(b)The applicant’s previous good character and lack of antecedents; and
(c)By placing too great an emphasis on the seriousness of the offending in the circumstances of this case.
(2) The head sentence and non-parole period are manifestly excessive for the reasons stated above.
Permission to appeal was granted by Stanley J on 18 May 2015.
During the course of argument, counsel for the appellant sought and was granted leave to add three further grounds of appeal. That was not opposed by the respondent. The further grounds are:
(3)    The sentencing judge erred in making the sentences for the State and Commonwealth offences partially cumulative and not wholly concurrent;
(4)    The sentencing judge erred in imposing the same head sentence and non-parole period for the State and Commonwealth offences; and
(5)    The sentencing judge erred in not allowing the maximum discount of 30% for the guilty plea for the State offence and failed to provide any reasons for reducing the sentence by less than the maximum permitted.
The factual circumstances
The child pornography material seized from the appellant by the Australian Federal Police has been classified using a system based upon the Australian National Victim Image Library (ANVIL) schema, which has been adapted from the Child Exploitation Tracking System (CETS) scale. The ANVIL schema classifies material as follows by reference to the activity depicted:
Category 1 – sexually suggestive posing with no sexual activity;
Category 2 – non-penetrative sexual activity between children or solo masturbation by a child;
Category 3 – non-penetrative sexual activity between adult(s) and child(ren);
Category 4 – penetrative sexual activity between children or adult(s) and child(ren);
Category 5 – sadism, humiliation or bestiality.
Category 6 – animated or virtual material depicting children engaged in sexual poses or activity.
The appellant is a Catholic priest and a member of the Society of Jesus, ie the Jesuits. At the time of his arrest on 21 August 2013, he was the Rector at St Ignatius College, Athelstone. Prior to his arrest, the Federal Police searched his office at the College and his bedroom in the Jesuit Residence. They located a substantial amount of material classified as child pornography.
The child pornography material possessed by the appellant on 21 August 2013 consisted of:
(a) 51 magazines, each of which contained multiple images. These were classified by reference to the highest rated image found in each magazine in accordance with the ANVIL schema. In other words, if a particular magazine contained one image rated at CETS 4, then the whole magazine was classified on that basis. Of the 51 magazines, nine were rated at CETS 1, five at CETS 2, 36 at CETS 4 and one at CETS 5;
(b) Five books, of which one was classified at CETS 1 and the remaining four at CETS 6;
(c) 1,362 printed pages of images. Some pages included more than one image. Of the 1,362 printed pages, 998 were rated at CETS 1, 261 at CETS 2, ten at CETS 3, 88 at CETS 4 and five at CETS 5;
(d) Four video tapes, of which three were rated at CETS 3 and the other at CETS 5; and
(e) Seven images that had been downloaded on the appellant’s laptop computer. Each of these images was rated at CETS 1. These seven images were the subject of the Commonwealth offence. During the course of submissions, counsel for the respondent informed the Court that the downloaded images were included within the 1,362 printed pages of images.
Possession of child pornography became unlawful in South Australia on 21 May 1992 upon the amendment of s 33 of the Summary Offences Act 1953.
The basis of the State offence was the possession of child pornography in 2013. The bulk of the material held by the appellant had been purchased in New South Wales in the 1970s and 1980s when possession was lawful. Over many years he had moved between South Australia, New South Wales and Victoria when he was assigned to different Jesuit colleges. He has resided in this State since 2001.
The downloads
Each of the seven downloaded pages was classified at the lowest level of the scale, ie CETS 1. The further statement of facts filed by the Commonwealth DPP on 9 December 2014 indicated that the seven downloaded images depicted boys ranging from approximately four to fourteen years of age. The boys were naked or partially naked, and in sexually erotic poses. A specific example of the content of the downloaded material was a printed page containing five images of a boy aged from about nine to eleven years wearing underwear and posing with a beach ball.
The magazines
The appellant admitted to police that he had purchased the bulk of the magazines in Sydney over a period of four or five years in the 1970s and 1980s.
The magazines classified as CETS 1 depicted naked or partly naked male children, many of whom were in sexually suggestive poses. The images classified as CETS 2 depicted sexual acts between boys, with no adult involvement, and with no penetration. Alternatively, the images depicted solo masturbation by a boy.
The majority of images categorised at CETS 4 portrayed penetrative sex between boys aged in their early to mid-teens. Interspersed with that material were some images depicting sexual activity between boys of that age group and adult males. A specific example of CETS 4 material was referred to by the sentencing judge. It is unnecessary to repeat the detail other than to note that the content was depraved.
The further statement of facts noted that, while some of the images had been classified as CETS 5 (ie showing sadism or bestiality), in fact there were no images depicting bestiality. The few images that depicted sadism were either in small thumbnail images or were in photos that were apparently incidentally attached to a larger photo that had been printed and may not have been the major item of interest. A CETS 5 image referred to by the sentencing judge showed one boy urinating on another.
Those images that depicted sadism showed boys tied up, but none of them involved penetrative sex. While some of the images depicted children as young as five years or less, these were few in number. There were no images of small children engaged in penetrative sex.
The printed material
The content of the printed material was generally similar to that of the magazines. One reference to the CETS 3 material will suffice to indicate the tenor of the images. The example of CETS 3 material referred to by the sentencing judge depicted a male of about 18 years and two boys aged about ten. Each was naked. One of the younger boys was kissing the 18 year old. The other had his legs draped over the latter.
The books
The five books alleged to contain child pornography had been published from 1976 to 1994. The statement of facts prepared by the Commonwealth DPP acknowledged that most of the books, and also a video recorded from television, contained apparently genuine academic or documentary information in relation to paedophilia.
One book contained thirteen images which fell into the CETS 1 category. The other books contained written pornographic material but not images. One of the books was self-described as a psychological analysis of paedophilia. It described sexual acts between children, and a description by a man of non‑penetrative sexual activity with boys. The book also contained an image of non‑penetrative sexual activity between an adult and a child.
Another book contained a case study, written by a well known criminologist, of a paedophile whom was thought to have molested hundreds of boys under the age of sixteen. It includes his description of sexual encounters with boys.
The other books were works of fiction with one describing the rape of a fifteen year old boy, and another giving an account of the rape and abuse of a thirteen year old.
The videos
The appellant told police that he had purchased three of the videos containing child pornography in the 1980s. These depicted penetrative sexual activity between children.
The fourth video was a recording of a program broadcast on ABC television which the appellant claimed to have recorded about ten years ago. As I have noted, the prosecution accepted that this was an apparently genuine documentary. It was nevertheless categorised at the CETS 5 level on the basis of the references in the commentary to serious child abuse. It also included images of children in provocative poses.
The circumstances of the appellant
As I have already mentioned, the appellant is a Catholic priest and a member of the Jesuit order. In his position as Rector of St Ignatius College he was responsible for ensuring that the school adhered to the Jesuit ethos and provided advice on policy questions to the principals of the senior and junior schools, who are laypersons. The appellant also taught at the College.
The appellant entered the Jesuit novitiate immediately after he left school in the early 1960s and was ordained as a priest in 1976. He is now aged 70 years. Having completed multiple university degrees, and religious studies, the appellant has spent his entire working life teaching in Jesuit schools in Sydney, Melbourne and Adelaide.
The appellant ceased teaching immediately upon his arrest. From that time until he was committed to prison on 20 March 2015 he resided in the Jesuit community at Seven Hill near Clare. He worked there as an archivist.
On 1 April 2014 the appellant entered what was described as an “interim safeguarding agreement” with the leaders of the Jesuit community. The terms of this agreement are very onerous. The agreement prevents the appellant from undertaking any of his priestly functions, prevents him from engaging in any public activity, teaching or training, denies him access to money and to the internet, subjects his mail to scrutiny and requires him to record his daily activities. In return, the Jesuits have agreed to support him financially. The Court was also informed that the appellant has applied for laicisation, ie removal of his status as a priest. However, it is intended that he will live in a Jesuit community as a layperson upon his release from prison.
References provided to the sentencing judge spoke highly of the esteem in which the appellant is held by teachers and students in South Australia and elsewhere. As the sentencing judge noted, there has not been the slightest suggestion that the conduct of the appellant towards his students was at any time inappropriate.
The appellant actively co-operated with the police investigation, particularly during the search of his office and bedroom. He also made full admissions to the police in a record of interview. He pleaded guilty in the Magistrates Court at an early stage. I will return to that point later.
There was a long delay between the arrest of the appellant in August 2013 and his sentencing in March 2015. That delay was not attributable to the appellant. The sentencing judge sought additional information from the prosecution which was much delayed.
Soon after his arrest, the appellant commenced treatment with a psychologist, Dr Michael Proeve. He reported in March 2015 that he had seen the appellant on 23 occasions after September 2013. A more detailed psychological report was provided by Mr Luke Broomhall for the purpose of sentencing submissions. The reports provided by Dr Proeve and Mr Broomhall are consistent.
Dr Proeve reported that the appellant had exhibited a high degree of control of his sexual impulses in the past and present. He had been diligent in practising exercise prescribed to him by Dr Proeve and thus had developed an increased emotional appreciation of the harm associated with his behaviour. In the opinion of Dr Proeve, the risk of the appellant re-offending was at the lower end when he commenced treatment and may have further decreased. He recommended that the appellant should engage in further sessions with a psychologist.
Mr Broomhall reported that the appellant had previously suffered depression and problems with alcohol. These had most likely arisen from guilt emanating from his struggle to reconcile his sexuality with his religious and spiritual beliefs. He had ceased using alcohol in 2011. He now had no prominent symptoms in relation to depression, anxiety or stress.
Mr Broomhall also reported that the appellant had a strong sense of compartmentalisation which provided a cognitive barrier between his private fantasy and his role as a teacher. The treatment provided by Dr Proeve had assisted the appellant to recognise that his viewing of pornography was not benign or victimless. He had also begun to re-establish his spirituality and faith. Testing placed him in the low range for similar future offending and that could be maintained and further reduced by treatment.
Sentencing remarks
The sentencing judge noted that the appellant’s counsel had conceded that a not insignificant proportion of his pornography collection constituted aggravated material, ie depicting children under the age of fourteen years. The judge also noted that, while some of the images depicted children as young as five years, they were few in number and none of them involved penetrative activity. It was clear from the seized material that the appellant’s predominant interest was in boys aged from their low to mid-teens, either clothed or partly clothed or engaged in masturbation or penetrative sex with other boys of about the same age.

The judge accepted the appellant’s explanation that he had been using the books in order to try to understand himself. However, this did not deprive the books of their inherently pornographic qualities.
The judge took into account the appellant’s achievements as a teacher and the high regard in which he was held prior to this offending coming to light. He had lost both his vocation and reputation as a result of these offences. His Honour also noted that there was no suggestion that his conduct towards students at any of the schools where he had taught had been other than impeccable.
The judge also took into account that the psychological reports indicated that the appellant was well on the road to complete rehabilitation. His Honour also took into account that the appellant had pleaded guilty at the first available opportunity.
His Honour indicated that, notwithstanding the appellant’s lack of prior convictions and the other considerations which operated in his favour, particularly his level of rehabilitation, his crimes were simply too serious to permit immediate release on a suspended sentence and recognisance.
The appellant was initially sentenced on 20 March 2015 and went into custody on that day. However, on 25 March 2015 the sentencing judge called the matter back on to correct an error and to receive further submissions.
The judge indicated that but for the plea of guilty he would have sentenced the appellant to two years and four months imprisonment on each count. In recognition of the early guilty pleas, he had reduced that to one year and nine months imprisonment on each count.
The following penalties were imposed:
Count 1 (the State offence) – imprisonment for one year and nine months with a non-parole period of ten months, both to commence on 20 March 2015;
Count 2 (the Commonwealth offence) – imprisonment for one year and nine months to commence on 19 December 2015, with the appellant to be released after serving one month imprisonment upon him entering into a $100 recognisance to be of good behaviour for eight months.
The effect of the sentence was to make the two terms of imprisonment partly concurrent. The total combined head sentence was two years and six months imprisonment. On 19 January 2016, after the appellant had served ten months imprisonment for the State offence and concurrently served one month imprisonment for the Commonwealth offence, he would be eligible for release on State parole and on a Commonwealth recognisance. Thus, the appellant is eligible for release after serving ten months of the total effective head sentence of two years and six months imprisonment.
The respondent’s submissions
The respondent has submitted that the appellant’s conduct was a serious example of this type of offending, although not in the worst category. The material seized from the appellant and the images located on his laptop computer were highly offensive and/or depraved in nature. While 71% of the material was in the lowest CETS 1 category, the remaining 29% fell within categories 2 to 6. More particularly, 37 of the 51 magazines contained images in the most serious and depraved categories, ie CETS 4 and CETS 5.
The respondent also submitted that offending of this type, involving aggravated child pornography offences, committed over a period of time and involving a substantial amount of material, including that of the most serious kind, will usually require a custodial sentence with a period of imprisonment to be served.
The respondent referred to the former s 10(4) of the Criminal Law (Sentencing) Act 1988. This had recited that a primary policy of the criminal law is to protect children from sexual predators and required that paramount consideration be given to the need for deterrence in any sentence for an offence involving sexual exploitation of a child. This sub-section was repealed and replaced, with effect from 11 December 2014, by a new s 10(2)(c). The new provision, by omitting the reference to sexual predators, makes clear that it will apply in a case such as the present matter where there is no evidence of sexual predation. It provides that, in determining the sentence for an offence involving the sexual exploitation of child, a court must give proper effect to the need to protect children by ensuring that paramount consideration is given to the need for general and personal deterrence.
The respondent submitted that the sentences imposed for the State and Commonwealth offences were appropriate and within the range of sentences properly available. The respondent further submitted that the period of ten months to be served before the appellant becomes eligible for release from prison was merciful.
The respondent also submitted that it had been reasonably open to the sentencing judge to exercise his discretion to not fully suspend the period of imprisonment given the serious nature of the offences. The personal circumstances of the appellant did not compel the complete suspension of the inevitable sentence of imprisonment. The failure to suspend did not indicate error.
The respondent noted that s 16A(2)(g) of the Crimes Act 1914 (Cth) provides that when sentencing for a Commonwealth offence a court is required to take into account the fact that an offender has pleaded guilty.
Section 10C(2)(b) of the Criminal Law (Sentencing) Act 1988 conferred a discretion upon the sentencing judge to discount the appellant’s sentence for the State offence by up to 30%. The respondent submitted that it was open to the sentencing judge to grant a discount of less than 30% and the discount of 25% was not plainly insufficient. Even if the discount for the State offence was insufficient, that did not affect the validity or appropriateness of the sentence for the Commonwealth offence, which involved an independent exercise of the sentencing discretion.
Consideration
The parties accept that the principles expressed by this Court in R v Padberg[1] must be applied in the present case.
[1] [2010] SASC 189; 107 SASR 386.
In Padberg the appellant had pleaded guilty to one Commonwealth and one State offence that were identical to those to which the appellant has pleaded. At the relevant time, the maximum penalty for the Commonwealth offence was imprisonment for ten years and for the State offence five years. The penalties have since increased to fifteen years and seven years respectively.
In Padberg the respondent had downloaded a very large volume of images and video material from the internet over a two year period. Only a sample was analysed. That comprised 798 child pornography images and 287 child pornography video files. The material depicted girls and boys ranging in age from about nine months to about fourteen years. The bulk of the images were CETS category 1, but the sample included material in all categories.[2] The largest single category of video material was category 4, although there were images in all categories. The respondent had not distributed any of the material or sought to profit from it and had not paid for it. He had co-operated with the police, made full admissions and entered an early guilty plea.
[2] It was classified under the COPINE scale which differs only marginally from the CETS scale applied in the present matter.
But for the early guilty plea and co-operation the sentencing judge would have imposed a sentence of 24 months for the Commonwealth offence and 18 months for the State offence. In recognition of his co-operation and early guilty plea the sentence was reduced to imprisonment for sixteen months for the Commonwealth offence and twelve months for the State offence. The two sentences operated concurrently with a non-parole period of six months fixed in respect of the second offence. A recognisance release order was made in relation to the Commonwealth offence and the sentence for the State offence was suspended. The Commonwealth and State Directors of Public Prosecutions jointly appealed against the sentences.
Doyle CJ (with whom White J agreed) held that:[3]
Offences of this kind will usually require a custodial sentence and will usually call for a period of imprisonment to be served. I mean offences of the kind charged, committed over a significant period of time, involving a substantial amount of pornographic material and involving child pornography of the most serious kind. I am not referring to offences of this kind when payment is made by the offender for the material, nor when the offender has distributed the material to others, either freely or in return for payment. If those matters are present, they are likely to raise the offending to another level of seriousness. For offending of the present kind a period of imprisonment to be served will ordinarily be appropriate even though the offender has pleaded guilty and has no previous convictions. That is not to say that a wholly suspended sentence can never be appropriate in such cases. Each case has to be considered on its own facts.
[3] Ibid at [22].
Because there was a Commonwealth offence, Doyle CJ reviewed sentences imposed in other jurisdictions for like offences. Doyle CJ referred with approval to a passage in the judgment of Harper JA of the Victorian Court of Appeal in Director of Public Prosecutions (Cth) v D’Alessandro[4] where the following propositions were stated:
[4] [2010] VSCA 60 at [21].
·The problem of child pornography is international;
·The prevalence and ready availability of pornographic material involving children, particularly on the internet, demands that general deterrence must be a paramount consideration;
·Those inclined to exploit children by involving them in the production of child pornography are encouraged by the fact that there is a market for it;
·Those who make up that market cannot escape responsibility for such exploitation;
·Limited weight must be given to an offender’s prior good character;
·A range of factors bear upon the objective seriousness of the child pornography offences. They include:
-       The nature and content of the pornographic material – including the age of the children and the gravity of the sexual activity portrayed;
-       The number of images or items of pornography possessed by the offender;
-       Whether the possession was for the purpose of sale or further distribution; and
-       Whether the offender will profit from the offence.
Doyle CJ held that there was no apparent error in the reasons of the sentencing judge and the sentence of imprisonment was within the range indicated by the authorities. Nevertheless, Doyle CJ held that a wholly suspended sentence was not warranted. He was influenced by the period of time over which the offending had occurred, the quantity of material and the fact that the most serious kinds of child pornography were involved. The need for deterrence outweighed the personal factors that tended to support the decision to suspend the sentence. However, while the sentencing judge had erred, Doyle CJ held that the sentence should not be set aside on appeal.
Turning to the instant case, I will first consider the sentence imposed for the State offence. The appellant was found by the police in possession of a large collection of child pornography amassed over many years. While 71% of the material was classified at the lowest level, a substantial number of images were classified towards or at the highest level. Some of the images were particularly depraved and offensive.
General deterrence is a paramount consideration when sentencing for offences of this kind. Only limited weight can be given to the appellant’s prior good character. This is particularly the case because he had retained possession of the material long after that became unlawful and continued to build his collection.
Doyle CJ held in Padberg that offences committed over a significant period of time, involving a substantial amount of pornographic material and involving child pornography of the most serious kind should attract a term of imprisonment. In my view the Court must be diligent to ensure that those principles continue to be observed for the reasons given by Harper JA in Director of Public Prosecutions (Cth) v D’Alessandro[5] and adopted by Doyle CJ in Padberg.
[5] [2010] VSCA 60 at [21].
For these reasons I consider that a term of imprisonment was appropriate. The starting point of imprisonment for two years and four months in respect of the State offence was clearly within the range reasonably available. It was not manifestly excessive.
The discount of 25% granted in recognition of the early plea on the State offence was less than the maximum applicable discount of 30% provided for in s 10C(2)(b) of the Criminal Law (Sentencing) Act 1988. Given the timing of the appellant's plea and having regard to his co-operation with the police (albeit that he had been caught red handed when the search warrant was executed), I cannot see any reason why he should not have received the maximum discount or very close to it. In that light, and as the judge did not provide any reason for only allowing a 25% discount, I infer that there was an error. I would reduce the sentence for the State offence to imprisonment for a term of one year and eight months. That is very marginally less than the maximum discount of 30%.
I now turn to the fourth ground of appeal, being that the judge erred in imposing the same head sentence and non-parole period for the State and Commonwealth offences.
The Commonwealth offence of downloading child pornography is inherently more serious than the State offence of possession, ie the maximum sentence is imprisonment for 15 years rather than 7 years. Nevertheless, it is clear that the conduct which gave rise to the Commonwealth offence was far less serious than that involved in the State offence. The downloaded material was all classified at the lowest end of the scale. The number of downloads was also quite small (ie seven) when compared to the large number of images, magazines, books and videos that formed the basis for the State charge.
The much less serious nature of the images covered by the Commonwealth offence, their far smaller number and the much shorter period of unlawful activity indicate that the sentencing judge erred by imposing the same head sentence for both the State offence and the Commonwealth offence. For that reason I would set aside the sentence for the Commonwealth offence and resentence the appellant.
In the present case none of the considerations identified by Doyle CJ in Padberg apply in relation to the Commonwealth offence. The conduct was not engaged in over a significant period of time, did not involve a substantial amount of pornographic material and the child pornography was of the least serious kind (that is only in a relative sense; all child pornography is serious). In my view a sentence of six months imprisonment was warranted.
I now turn to the third ground of appeal, being that the sentences for the State and Commonwealth offences should have been made fully concurrent rather than only partly so. While legally there were two different offences constituted by separate conduct, these were simply different manifestations of the same course of unlawful conduct engaged in by the appellant over many years. The Commonwealth offence of downloading child pornography occurred at a time during which the appellant continued to commit the State offence of possessing such material. Moreover, the material that was the subject of the downloading offence was included in that which gave rise to the State possession charge. In all the circumstances, I consider that the judge erred by not making the two sentences concurrent. I would order that that the sentences for the State and Commonwealth offences should be made be fully concurrent.
The final issue to be decided is whether the sentence should have been suspended. Doyle CJ observed in Padberg that a wholly suspended sentence can sometimes be appropriate in serious child pornography cases. That is because each case has to be considered on its own facts. In the present case the possibility of a wholly suspended sentence does not arise. The appellant has already served several months in prison.
There are a number of considerations which suggest that a wholly suspended sentence is appropriate. Included amongst these considerations are that much of the material in the appellant’s possession had originally been lawfully obtained, that 71% of the images in his possession were rated at the lowest level on the CETS scale, that all of the material covered by the Commonwealth charge met that description and the fact that the material was not obtained for distribution or sale. Other significant matters are his early guilty plea, his co-operation with the authorities and the very strict regime that he voluntarily entered into under Jesuit supervision. Also of significance is the very good progress the appellant has made in response to the extensive psychological treatment program and his very low risk of re-offending. While of lesser importance in a case such as this, his past good character and service cannot be ignored. That observation may also be made in relation to the loss of his career, life-long vocation and previously outstanding reputation.
In light of these considerations and the fact that the appellant has already served several months in prison, I would hold that the State sentence of imprisonment should be suspended upon him entering into a bond to be of good behaviour.
I would also reduce both the Commonwealth sentence and the State sentence in recognition of the period of imprisonment that the appellant has served since 20 March 2015.
Conclusion
I would impose a sentence of two years and four months in respect of the State offence. In recognition of the early guilty plea entered by the appellant I would reduce the period of imprisonment to one year and eight months. I would further reduce that sentence in recognition of the period of imprisonment of four months and nine days that the appellant has served since 20 March 2015. Thus, I would reduce the period of imprisonment to one year and three months and three weeks. I would set a non-parole period of six months.
I would sentence the appellant to six months imprisonment in respect of the Commonwealth offence, reduced from eight months on account of the plea. However, I would also reduce that sentence in recognition of the period of imprisonment that he has served since 20 March 2015. Thus, the head sentence should be varied to one month and three weeks imprisonment.
The Commonwealth and State sentences should be served concurrently.
In relation to the Commonwealth sentence, I would order the release of the appellant immediately. As the head sentence for the Commonwealth offence would not exceed six months, and as no useful purpose would be served by a very short recognisance period,[6] I would exercise the discretion under s 19AC(3) of the Crimes Act 1914 not to require a recognisance order. With respect to the State sentence, I would also order the immediate release of the appellant by way of suspended sentence upon him entering into a bond to be of good behaviour for a period of eighteen months.
[6] Section 19AF(1) of the Crimes Act 1914 provides that a recognisance period must not exceed the period of the head sentence.