R v Hutchinson

[2018] NSWCCA 152

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Hutchinson [2018] NSWCCA 152
Hearing dates:	9 July 2018
Decision date:	15 August 2018
Before:	Meagher JA at [1]; R A Hulme J at [2]; Button J at [89]
Decision:	Crown appeal dismissed
Catchwords:	CRIME – Crown sentence appeal – possession and transmission of child abuse material – male applicant posed as 18 year old female to obtain explicit images from young teenage boys – applicant also in possession of over 500 child abuse files – applicant had good prior character and prospects of rehabilitation – sentenced to 17 months imprisonment with minimum period to serve of 8 months – whether sentencing judge erred in assessment of objective seriousness – judge’s specification of objective seriousness not indicative of error – whether judge failed to comply with s 19AC(1) Crimes Act 1914 (Cth) – judge did fail to comply with s 19AC but not apparent that failure affected sentence – ground upheld – whether sentences manifestly inadequate – sentence very lenient but not manifestly inadequate – appeal dismissed
Legislation Cited:	Crimes Act 1900 (NSW) ss 16A(2)(ea), 91H(2) Crimes Act 1914 (Cth) ss 16A, 17A, 19AC(1) Crimes (Sentencing Procedure) Act 1999 (NSW) s 5, 21A Criminal Appeal Act 1912 (NSW) s 5D(1) Criminal Code (Cth) s 474.19(1)
Cases Cited:	Burbridge v R [2016] NSWCCA 128 Director of Public Prosecutions (Cth) v Guest [2014] VSCA 29 DPP (Cth) v Walls [2014] VSCA 323 Fedele v R [2015] NSWCCA 286; (2016) 257 A Crim R 78 Fitzgerald v R [2015] NSWCCA 266 Hong v R [2017] NSWCCA 238 James v R [2009] NSWCCA 62 Lyons v R [2017] NSWCCA 204 Minehan v R [2010] NSWCCA 140; 201 A Crim R 243 Mouscas v R [2008] NSWCCA 181 Mulato v R [2006] NSWCCA 282 Peters v R [2018] NSWCCA 126 R v Booth [2009] NSWCCA 89 R v Chaplin [2012] NSWDC 301 R v De Leeuw [2015] NSWCCA 183 R v Hampton (1998) 44 NSWLR 729; 101 A Crim R 399 R v Linardon [2014] NSWCCA 247 R v Martin [2014] NSWCCA 283; 246 A Crim R 477 R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 R v Philpot [2015] ACTSC 96 R v Porte [2015] NSWCCA 174; 252 A Crim R 294 R v Tham [2017] NSWDC 40 R v Wood [2015] NSWCCA 231 Saddler v R [2009] NSWCCA 83; 194 A Crim R 452 Smit v The State of Western Australia [2011] WASCA 124 The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
Category:	Principal judgment
Parties:	Regina (Appellant) James Michael Hutchinson (Respondent)
Representation:	Counsel: Ms S McNaughton SC with Ms J Paingakulam (Crown) Mr G James QC (Respondent)   Solicitors: Commonwealth Director of Public Prosecutions Nikola Velcic & Associates
File Number(s):	2016/222058
Decision under appeal	Court or tribunal: District Court Date of Decision: 5 April 2018 Before: Scotting DCJ File Number(s): 2016/222058

Judgment

1. MEAGHER JA: I agree with R A Hulme J that this appeal should be dismissed.

2. R A HULME J: Mr James Hutchinson was sentenced by his Honour Judge Scotting in the District Court in Sydney on 5 April 2018 in respect of three offences, one contrary to State law and the others contrary to Commonwealth law. The overall sentence amounted to imprisonment for 17 months with a minimum period to serve of 8 months.

3. The State offence was one of possessing child abuse material contrary to s 91H(2) of the Crimes Act 1900 (NSW) for which the maximum penalty is imprisonment for 10 years. For this offence the judge imposed a sentence of 6 months’ imprisonment without a non-parole period. The sentence was specified to date from 1 April 2018. (This offence was referred to by the police reference, "Sequence 1".)

4. The Commonwealth offences were of using a carriage service to transmit child pornography contrary to s 474.19(1) of the Criminal Code (Cth) for which the maximum penalty is imprisonment for 15 years. The judge imposed sentences of 12 months’ imprisonment with, in each case, recognizance release orders after serving 3 months. One of these sentences dated from 1 July 2018 and the other from 1 September 2018. (These offences were referred to as "Sequence 2" and "Sequence 3".)

5. The judge should have made only the one recognizance release order in respect of both the Commonwealth sentences. This will be discussed later.

6. Notices of appeal against the asserted manifest inadequacy of the sentences were filed by the Commonwealth Director of Public Prosecutions and a State Deputy Director of Public Prosecutions on 30 April 2018 with, in each case, an amended notice of appeal (adding specific grounds) being filed on 31 May 2018.

7. The grounds of appeal are:

1.   The sentencing judge erred in his Honour’s assessment of the objective seriousness of the offences.

2. The sentencing judge erred in failing to comply with s 19AC(1) of the Crimes Act 1914 (Cth).

3.   The sentence imposed in respect of each of Sequences 2-3 was manifestly inadequate.

4.   The total effective sentence and period of full time custody to be served were manifestly inadequate.

Factual basis of the offences

8. The facts pertaining to the three offences will be discussed chronologically and by reference to the statement of agreed facts tendered in the District Court.

Sequence 2 – use carriage service to transmit child pornography

9. The Sequence 2 offence was that between 26 February 2016 and 16 July 2016 the respondent used a carriage service to cause child pornography to be transmitted to himself.

10. Over several months between the dates mentioned in the Court Attendance Notice a person purporting to be an 18 year old female ("EB") communicated with a 15 year old male ("the victim") by way of the KiK Messenger instant messaging mobile app and through text messages. They had engaged in sexualised chat. When the victim said he would not have access to the internet for a period of time, EB provided a mobile phone number. EB sent the victim a number of naked images of a girl who the victim was given to understand was EB. EB also sent to the victim a link to a file sharing site which contained an adult pornography movie. EB asked the victim to meet on the Central Coast but the victim was not able to arrange to travel.

11. Police were able to trace the mobile phone number provided by EB to the victim to the respondent's home at The Entrance North. He was the person purporting to be EB.

12. The respondent was interviewed on the day of his arrest, 22 July 2016. He said he did not recall how contact with the victim was initiated. He was aware the victim was a school student. He agreed that there had been sexually explicit conversations and that he had used the profile of EB. He admitted sending photographs of naked adult females in order to keep the victim interested. He had requested and received semi-naked and naked images of the victim. He had told the victim of his desire to engage in sexual encounters with the victim and the victim's girlfriend, but he claimed that he would never have met up with him. He told police that he knew his contact with the victim was not right and said he had wanted to stop chatting with him.

13. A forensic examination was carried out in respect of devices owned by the victim and the offender which revealed four child pornography images the respondent had received from the victim which he had deleted. Two images were of the victim wearing underwear, one was of the victim's exposed penis, and one was of the victim's exposed penis with ejaculate on his stomach.

14. Child pornography, or child abuse material, is usually categorised under the Child Exploitation Tracking System (CETS) scale:

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 adults and children
Category 4	Penetrative sexual activity between children or adults and children
Category 5	Sadism, humiliation or bestiality
Category 6	Animated or virtual depictions of children engaged in sexual poses or activity

15. In relation to the four images that were transmitted to the respondent and which constituted the offence in Sequence 2, two were categorised in CETS 1 and the other two were in CETS 2.

Sequence 1 – possess child abuse material

16. The offence identified as Sequence 1 was that on 22 July 2016 at The Entrance North (his home), the respondent possessed child abuse material.

17. The forensic examination of two external hard drives, a laptop computer and a tablet belonging to the respondent revealed his possession of 509 still images and videos of what is described under State legislation as "child abuse material". The children depicted ranged from about 10 to 15 years of age. The files were categorised as indicated in the following table.

CETS	Images	Videos	Total
1	308	8	316
2	72	51	123
3	3	0	3
4	15	50	65
5	0	2	2
Total	398	111	509

18. The statement of agreed facts provided descriptions of some of the files. They included depictions of two pubescent females and a pubescent male naked on a bed kissing; pubescent males displaying erect penises and masturbating; two naked pre-pubescent males performing oral sex upon an adult male; two pre-pubescent males performing anal penetrative intercourse; and two pre-pubescent males on a bed, one performing oral sex on the other. There was also a video of a pubescent male bound and blindfolded, with an adult male masturbating him.

19. Police also found software had been downloaded by the respondent that enabled him to appear in Skype video conversations as a semi-naked female, by recording footage of the female image and transmitting it during the Skype conversations. Police located a recording of such a conversation between the respondent, posing as the semi-naked female, and a pubescent male in which the respondent instructed the male to take video footage of himself removing his clothes, exposing his penis and masturbating.

20. The Crown provided to the sentencing judge a "sample bundle" of the material. During the proceedings on sentence it was described as including a "screenshot", or "some snapshots" of a seven minute video that fell within CETS 5 depicting sadistic activity.

Sequence 3 – transmit child pornography by carriage service

21. The Sequence 3 offence was that between 16 August 2015 and 17 April 2016 the respondent used a carriage service for child pornography. The particulars in the Court Attendance Notice stated, "cause child pornography to be transmitted to self".

22. The respondent's mobile phone revealed a number of "chats" using the Kik Messenger app in which he had successfully implored pubescent males to send pornographic images of themselves, for example, of an erect penis or, in one case, of an anus. Chats with four unidentified victims are referred to in the statement of agreed facts, the earliest in August 2015. The images transmitted by the victims were all in the CETS 1 category. The victims told the respondent that they were aged "13 nearly 14", "14", "15" and "13", whereas he told them that he was aged 15 or 16.

Victim impact statement

23. Section 16A(2)(ea) of the Crimes Act provides that a victim impact statement (if there is one) must be taken into account.

24. The Crown tendered a victim impact statement by the 15 year old boy with whom the respondent had communicated under the guise of the female "EB" (Sequence 2 offence). He said the case "has had a big effect on me". He gave specific examples such as a loss of trust and confidence and a corruption of his thoughts about women and his own body image. He wrote that "the crimes committed by this man against me have had such an emotional, physical and psychological effect on me, things that have affected my day to day life for the worse".

The respondent's personal circumstances

25. The respondent was aged 29 at the time of the offences. He was single and lived alone on the Central Coast. He had no previous convictions.

26. He excelled at school and later completed a Bachelor of Engineering from 2005 to 2008. At the time of the offences he was working as a field engineer in a fly-in fly-out capacity supervising coal seam gas projects in Queensland. He subsequently worked in the family owned foundry.

27. The respondent maintained close contact with his parents and four older siblings who were supportive of him.

28. A Pre-Sentence Report by Mr Ian Fabian, Community Corrections Officer, dated 21 August 2017, included that the respondent had been referred to a clinical and forensic psychologist for the purpose of assessment and treatment. He was also referred to the Community Corrections Psychologist to assess his risk to the community as well as for treatment and intervention advice. The Static-99R actuarial instrument yielded a score placing the respondent in the moderate-high risk range relative to other male sex offenders. The Level of Service Inventory – Revised Actuarial Risk/Needs Assessment Tool indicated a low risk of re-offending. Combining the two, Mr Fabian indicated that the respondent was considered to be at "medium/high" risk of re-offending.

29. Mr Fabian's report also advised that a minimum two-year gaol term would be required if the respondent was to complete a custodial based sex offender treatment program. If a non-custodial sentence was imposed he could be referred to a program in the community but, again, a period of two years would be required.

30. A further report by Mr Fabian, dated 16 March 2018, included that the respondent had recently commenced weekly group psychological treatment for people who had committed a sexual offence. Mr Fabian said that the respondent appeared to have taken the appropriate steps to address his offending behaviour; he had indicated an understanding of the factors that may have contributed to his offending and of the impact of his actions upon underage victims.

31. The respondent told Dr Mark Milic, clinical and forensic psychologist, that he developed a sexual attraction for both genders during his adolescence. He acknowledged attraction to young-looking males aged about 18 to 20 but his interest drifted to a younger age group.

32. There were three reports by Dr Milic tendered to the primary judge. In the final report, dated 21 March 2018, he indicated that the respondent had attended treatment sessions on 13 occasions from 1 June 2017 to 5 March 2018. He said the respondent had participated openly and had shown interest in self-improvement. He had also been accepted into a group psychotherapy treatment program and said he was deriving benefit from that.

33. Dr Milic offered opinions as to why the respondent had offended as he did ("a desire for sexual interaction while maintaining a degree of distance and detachment which emanate from his avoidant personality structure"). He considered that the respondent was chastened by the experience of being arrested and having to give up his employment. He said the respondent's prospects of rehabilitation were "enhanced due to his participation in psychological treatment and he is likely to derive benefit from further treatment".

34. Testimonials by the respondent's mother, a sister, his oldest brother and his older brother’s wife, speak of their shock upon hearing of the respondent being charged given his prior character as they knew him. They provided their opinions that he was remorseful for, and ashamed of, his offending conduct.

The proceedings on sentence

35. There are some particular matters to be noted about the proceedings on sentence.

36. First, the prosecutor explained to the judge that the offences in Sequences 2 and 3 were separately charged on the basis that Sequence 2 involved an identified victim whereas Sequence 3 was a rolled-up charge involving four unidentified victims.

37. Secondly, the experienced counsel then appearing for the respondent acknowledged that, unless there was some repetition, given there were 509 files in total there were more than likely 509 victims.

38. Thirdly, counsel sought on behalf of the respondent a sentence that would, in effect, amount to conditional liberty by way of something in the nature of a suspended sentence or an intensive correction order. The representative of the Crown responded by reaffirming what had been put in her written submissions that only a full-time custodial sentence was appropriate.

Remarks on sentence

39. After summarising the evidence, the judge referred to general principles of sentencing for Commonwealth child pornography offences and then addressed the objective seriousness of the offences (see below under Ground 1). The judge then referred to the significance of general deterrence in sentencing for such cases and referred to reasons why intermediate appellate courts had consistently stated that general deterrence and denunciation are paramount. He also considered that there was some need for specific deterrence, but it was reduced because the respondent had taken steps to enter into treatment and had accepted responsibility for the offences.

40. The judge then made reference to a number of mitigating factors. He acknowledged that the respondent entered early pleas of guilty and said that the pleas also indicated remorse. As a result, he reduced the otherwise appropriate sentences by 25 per cent. Reference was also made to the respondent having no prior convictions; being a person of good character; being aged 31 and having an impressive work history; having good prospects of rehabilitation; and being genuinely remorseful and contrite.

41. Dealing with the competing submissions of the parties as to whether a sentence of full-time custody was required, his Honour announced his satisfaction in accordance with s 17A of the Crimes Act 1914 (Cth) and s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) that no sentence other than imprisonment was appropriate. His reasons for this finding were:

"(a)   the offences committed are objectively serious;

(b)   there is a need for general deterrence;

(c)   there is a need for denunciation of the offending conduct; and

(d)    that whilst the subjective considerations relating to the offender are persuasive they are necessarily subsidiary to the duty of the Court to ensure that he is given a punishment of appropriate severity."

42. The judge then said there "should be some partial accumulation of the sentences imposed to reflect the different criminality involved in each offence". He confirmed that he had considered the imposition of an intensive correction order in lieu of full-time custody but he did "not believe that it would be a punishment of appropriate severity because it would not properly reflect general deterrence, denunciation or retribution".

Generally as to the assessment of sentence in cases concerning child pornography and child abuse material

43. There are two general matters that I wish to address before turning to the grounds of appeal.

Factors relevant to assessment of objective seriousness

44. The Crown indicated to the Court that the list of factors that may bear upon the assessment of the objective seriousness of offences concerning child pornography and child abuse material provided in Minehan v R [2010] NSWCCA 140; 201 A Crim R 243 has been endorsed in subsequent cases and has been found to be of assistance to sentencing judges. Whilst acknowledging that it was said in that case that this list of factors is not closed, the Crown invited the Court to add two further matters to the list that have emerged in the present case. If the list has been found useful it is appropriate to update it. I have done so by amending the 9th item in the list to include deception and adding a new 10th item.

45. Accordingly, a revision of the list provided in Minehan v R of potentially relevant matters that may bear upon the assessment of the objective seriousness of offences concerning the possession, dissemination or transmission of child pornography and child abuse material is:

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

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

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

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

5.   In a case of possession, the offender’s purpose, whether for his/her own use or for sale or dissemination. In this regard, care is needed to avoid any infringement of the principle in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31.

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

7.   Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination/transmission.

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

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

10.   The age of any person with whom the offender was in communication in connection with the acquisition or dissemination of the material relative to the age of the offender.

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

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

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

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

46. Once again, it must be stressed that individual cases can always identify other matters relevant to an assessment of objective seriousness and so this list remains one that is not exhaustive.

Viewing a sample of the child pornography or child abuse material

47. During the course of the hearing the Crown handed up a booklet containing samples of the material the subject of the offences. The Court received the booklet, indicating that the members of the Court would consider later whether it was necessary for it to be viewed.

48. I appreciate that it has been said in the past that viewing a sample of the material is necessary for a judicial officer to obtain a full appreciation of its nature which is a significant factor in the assessment of the objective seriousness of the offence(s): see, for example, R v Porte [2015] NSWCCA 174; 252 A Crim R 294 at [76] (Johnson J).

49. I do not understand there to be binding authority that viewing a sample of such material is essential in every such case. I take the view that it is incumbent upon the prosecuting authorities to provide an adequate written description of the material. In the vast majority of cases that should suffice for there to be a sufficient appreciation of the "relative perversion and debauchery of the pornographic material" (as it has been put in one of the cases to which Johnson J referred). I do not see the need to view an image or a video of, for example, an adult committing some dreadfully depraved act towards a child when it is possible to understand how terrible such a thing is by reading a description of it. Moreover, I would doubt there would be any comfort for the child victim to know that in addition to offenders poring over such images there will be lawyers and judges examining them as well.

50. In the present case, the description of the material within the statement of facts is reasonably detailed and the Crown did not suggest that there was anything of importance that the Court could not glean from such description. In these circumstances I am satisfied that viewing a sample of the material is not necessary.

Ground 1: error in assessment of objective seriousness of the offences

51. The primary judge found that all of the offences were "in the low range of objective seriousness".

52. In the context of addressing this issue the judge said that he had considered what was said in R v Porte at [63]-[72] where Johnson J discussed factors relevant to the seriousness of offences of this type. Specific matters mentioned by the sentencing judge about the present case were, in relation to the possession offence:

●   Actual children were involved in the creation of the material the subject of the possession offence.

●   The material included children involved in sexual acts with other children and adults.

●   There was no indication of any physical harm being caused to the children.

●   The bulk of the material in the possession offence was in CETS 1 but that was not necessarily mitigating.

●   The number of images in the possession offence was relatively small; 509 images.

53. In relation to the transmission offences the judge noted:

●   They involved the respondent causing the pornographic material to come into existence.

●   There was considerable planning to deceive the victims to provide images of themselves.

●   The offences occurred over a period of a few days to a few months.

●   The offences represented a series of criminal acts of similar nature which was an aggravating factor.

●   The transmission offences resulted in the creation of a small number of images that were in the lower CETS categories.

54. The Crown acknowledged that a finding as to the objective seriousness of an offence is quintessentially a matter for sentencing judges. It is a matter that this Court is very slow to determine for itself or to set aside findings made at first instance: Mulato v R [2006] NSWCCA 282 at [37] (Spigelman CJ). Nonetheless, the Crown contended that the judge should have found that the objective seriousness of the offences was "above the low range".

55. The Crown provided a more detailed list of features that were relevant to an assessment of the objective seriousness of the offences.

56. The Crown was also critical of the judge referring to the transmission offences together and contends that he erred in not making an assessment of the offences individually. This was said to be particularly so given the offence in Sequence 2 involved a single victim whereas that in Sequence 3 concerned four victims.

Consideration

57. As to the features of the offences relevant to their objective seriousness that were listed by the Crown, it is not apparent that the judge overlooked any of them. There is no requirement for a sentencing judge to identify and articulate every possible feature that bears upon such an assessment. It is perfectly acceptable for a judge to articulate a finding and provide sufficient reasoning to explain it. In this case, the judge identified five features of the State offence and five features of the Commonwealth offences; he was not required to list every possible feature that was relevant to the assessment.

58. The more substantial matter with which this ground is concerned is the judge's finding that the objective seriousness of the offences was "in the low range". What did he mean by that? He certainly did not say "in the lowest range" or "at the bottom of the range".

59. It is an important aspect of the sentencing function that a judge makes an assessment of the objective seriousness of an offence, states what that assessment is, and provides sufficient reasons to explain it. One of a number of reasons why it is important is the requirement that a sentence should not exceed, or be less than, what is proportionate to the gravity of the crime: R v McNaughton (2006) 66 NSWLR 566; [2006] NSWCCA 242 at 572 [15] (Spigelman CJ).

60. Where judges do express a finding as to objective seriousness in terms of a range there is a variety of terminology used. References to the top, middle or bottom of the range are clear enough, although what a judge has in mind in terms of the width of the middle of the range is sometimes moot. But what should a judge say if he or she considers an offence falls between the middle and the bottom of the range? Perhaps, "in the low range"? Anything more precise can hardly be the expectation.

61. The Crown did not say in its written submissions what it meant by "above the low range" when submitting that this was the correct finding that should have been made. At the hearing of the appeal the Crown was unable to articulate what it thought the judge meant by "in the low range" and therefore what the Crown was trying to convey by its expression, "above the low range". After being pressed on the point, it was eventually submitted that there should have been a finding of "around about the middle of the range".

62. It was not the Crown's case in the District Court that a finding of objective seriousness should be made in such terms. The Crown case there was that the offences were "objectively serious" (written submissions at [23]) and "objectively very serious" (ibid at [32]). The contention now that the offences were "around about the middle of the range" is almost as vague. Does "around about" mean that the offences could be a little above, or below, as well as being in the middle of, the range?

63. Taking the judge to have meant that the objective seriousness of the offences was somewhere between the middle and the bottom of the range I can see no error. In this regard I have had regard to the wide range of offending that can be seen in these types of cases which will become evident in the discussion of the manifest excess grounds below.

64. The ground has no merit and should be rejected.

Ground 2 – error in failing to comply with s 19AC(1) of the Crimes Act 1914 (Cth)

65. It was clearly an error for the judge to make a recognizance release order in respect of each of the Commonwealth sentences. He should have determined the sentence for each, including the commencement date, and then determined a single recognizance release order (if the total was 3 years or less; a non-parole period otherwise).

66. The Crown contends there is a practical consequence to this error. It contended that with the judge having determined that there should be 12 month sentences with 3 month recognizance release orders for each of the two Commonwealth offences, there was a constraint on the extent by which the sentences could be partially accumulated; one sentence could not commence more than 3 months after the commencement of the other.

67. This argument is entirely theoretical. Implicitly, it begins with the premise that having determined the head sentence for each offence the judge then determined the period of each recognizance release order before turning his mind to the totality principle and how long the overall effective sentence and its minimum custodial period should be. Reminiscent of the analogical reasoning of Spigelman CJ in R v Hampton (1998) 44 NSWLR 729; 101 A Crim R 399 at 732C, the argument seems to assume that the chicken came before the egg (or vice versa) where in truth there is a process of evaluating two matters that are capable of being, and usually are, considered simultaneously. For example, it is often the case in sentencing for New South Wales offences that adjustments are made to non-parole periods to take account of periods of accumulation of sentences.

68. There is no doubt that there was error in failing to comply with s 19AC(1). But whether it had any practical impact upon the overall sentence imposed is not at all apparent. If, being mindful of the principle of totality, the judge determined that there should be an overall sentence of 1 year 5 months with a minimum custodial component of 8 months, he could have achieved that by making a single order that the respondent be released on recognizance after serving 5 months (1 July 2018 to 30 November 2018).

69. This ground is made out but it has no bearing upon whether the appeal should be allowed.

Grounds 3 and 4 – the individual sentences, the total effective sentence, and the minimum custodial component of the total effective sentence are manifestly inadequate

70. The Crown sought to make good the contentions raised by these grounds by referring to the maximum penalties (10 years and 15 years) and arguing that the sentences:

●   failed to give "sufficient" weight to the nature and circumstances of the offending;

●   failed to have "appropriate" regard to general deterrence;

●   gave "undue" weight to the respondent's efforts at rehabilitation; and

●   thereby failed to "sufficiently" denounce the offending or provide "sufficient" retribution for the respondent's conduct.

71. The adjectives that are quoted from the Crown's submissions provide an implicit acknowledgement by the Crown that the judge was not completely unmindful of the various matters but that he simply erred in the degree to which the sentences reflected them.

72. A table provided in the written submissions showed that in respect of the sentences of 6 months (Sequence 1), 12 months (Sequence 2) and 12 months (Sequence 3) the respondent will be required to serve periods of full-time custody of 6 months, 3 months and 3 months respectively. However, it was said to also indicate that the full-time custody referrable to each offence was, respectively, 3 months, 0 months and 2 months. This analysis is, with respect, unhelpful. As the chart annexed to this judgment Hutchinson graph (34.0 KB, pdf) which sets out the details of each sentence and their overall effect demonstrates, it can also be said, equally unhelpfully, that the respondent will serve 3 months referrable to Sequence 1, then 2 months referrable to Sequence 2, and then 3 months for Sequence 3; or 6 months for Sequence 1, 0 months for Sequence 2 and then 2 months for Sequence 3.

73. In relation to the State offence, the Crown submitted that whatever be the finding as to the level of objective seriousness, a sentence of 6 months was inadequate for appropriate denunciation of the respondent's criminality in possessing 509 files, including 111 video files, almost half of which were in the CETS 4 category. Other matters identified by the Crown were that the respondent had applied himself to the task of possessing the files by storing them on four separate hard drives (I note there was no evidence that this was a conscious choice as opposed to happenstance) and that he had procured the creation of at least one of the video files using sophisticated software to deceive the victim as to his true identity (but I note the applicant was only charged in relation to the possession of that file and not in relation to its transmission to him).

74. In relation to the Commonwealth offences, the Crown argued that the starting points for the sentences (before the 25% reduction) did not reflect the objective seriousness of the individual offences. They required "considerable planning to deceive the victims to provide images of themselves" (ROS [53]) and took place over a period of months. They occurred in the context of an ongoing relationship that was deliberately encouraged and pursued by the respondent, he being aged 28 and 29 when communicating with victims aged 13 to 15.

75. A further argument was that if the sentence of 12 months for the Sequence 2 offence which involved one victim was inadequate, the same sentence for the Sequence 3 offence which involved four victims the subject of the same kind of conduct over a longer period of time was even more inadequate.

76. The Crown implicitly accepted the judge's finding that "the full extent of [the respondent's] actions hit him after he was arrested and in police custody" but pointed to the admission made by the respondent to the police that he knew his conduct in relation to the victim of the Sequence 2 offence was "not right" and had wanted to stop chatting to him. (It is not insignificant that the respondent had not retained the images he obtained from the victim; they were found by police as deleted files.)

77. The Crown acknowledged that the respondent's significant steps towards rehabilitation were an important consideration on sentence and demonstrated the limited role which specific deterrence played (ROS [57]) but submitted that they should not have been allowed to overshadow the paramount importance of general deterrence and denunciation: R v Porte at [59]. However, the Crown immediately proceeded to accept that the judge expressly recognised this was so (see above at [41]).

78. A further criticism in the Crown's written submissions was that the judge disregarded the assessment of the respondent as being a medium-high risk of re-offending as set out in the Pre-Sentence Report (see above at [28]). It was submitted that the judge had misconstrued what Dr Milic had said about the respondent's rehabilitation prospects. His Honour said, "Dr Milic opines that he has good prospects for rehabilitation"), whereas the doctor said:

"His prospects for rehabilitation were enhanced due to his participation in psychological treatment and he is likely to derive benefit from further treatment." (Emphasis added)

79. The Crown referred in its submissions below, and in this Court, to the sentences imposed in a number of other cases. Further, there are useful collections of sentences imposed in other cases to be found in the judgments of this Court in R v Porte; Fitzgerald v R [2015] NSWCCA 266 and Lyons v R [2017] NSWCCA 204.

80. In relation to the Commonwealth offences, the Crown accepted in its written submissions that "there is no body of comparable sentences that would properly be regarded as providing a sentencing pattern which would bear upon the assessment of sentence in this case". The unusual feature of this case was said to be that the respondent was the instigator of the production of the child abuse material which he caused to be transmitted to himself. Accordingly, it was submitted (and I accept), the assessment of sentence should be carried out in accordance with general sentencing principles and the prescribed maximum penalty.

81. Davies J observed in Lyons v R [2017] NSWCCA 204:

“[82] Since objective seriousness is an assessment of where the case lies on the ‘spectrum’ that extends from the least serious instances of the offence to the worst category of offending (R v Kilic [2016] HCA 48; (2016) 91 ALJR 131 at [19]), it is necessary, particularly in cases involving these offences, to have regard to comparative cases. That need arises because, as Minehan and De Leeuw make clear, a number of the relevant considerations concern the numbers of images, the length of time material was possessed, accessed or transmitted, and the nature and content of the material ordinarily, but not exclusively, assessed on the CETS or Oliver scales. Other considerations identified in those cases are relevant also, but the matters mentioned will often be significant.”

82. For that purpose, a summary of the cases to which the Crown referred, and of some other cases, is to be found in a table annexed to this judgment. The contrast between these and the present case is at the heart of the resolution of this appeal. HUTCHINSON (Table of cases) (28.5 KB, docx)

83. The table of cases illustrates a very broad range of severity of the types of offences presently under consideration. No particular case is directly comparable, which is not unexpected, and the vast majority are significantly more serious than the present case. Peters v R [2018] NSWCCA 126 perhaps comes the closest; it does not involve the deception perpetrated by the present respondent in having child pornographic material transmitted to him but it has the countervailing feature of involving some particularly vile material.

84. If the Crown appeal in this case was to be upheld, the expectation would be that a considerably longer sentence would be within contemplation. But that would elevate the result to a level comparable to some of the clearly more serious cases described in the table. In the end, a review of these cases has led me to conclude that the sentencing judge in the present case was correct to assess the objective seriousness of each of the offences as in the low (that is, below the middle of the) range of objective seriousness. If the Commonwealth Director's contention that they fall "around about the middle of the range" were to be accepted, then the majority of the cases in the annexed table would be above, even well above, the middle of the range; a proposition that cannot be sustained.

82. I am also driven to conclude that the sentences imposed are very lenient. More emphasis upon general and personal deterrence as well as denunciation should have been reflected in the sentences. The present case should not be regarded as a benchmark for the assessment of sentences in other cases. Having said that, however, I am unable to conclude that the sentences are unreasonable, or plainly unjust, such as to be manifestly inadequate.

83. Even if the sentences should be correctly characterised as manifestly inadequate, I nevertheless would have dismissed the Crown appeal in the exercise of the discretion pursuant to s 5D(1) of the Criminal Appeal Act 1912 (NSW). The reason for that is that the Crown has advanced a case in this Court that was not articulated in the court below.

84. The principle issue upon which the Crown's case in the District Court was based was that these were offences of sufficient seriousness that there should be a full-time custodial sentence. This was put in opposition to the respondent's case that some alternative to full-time custody was within the range of available sentencing options. The Crown succeeded in what it seems to have set out to achieve in the District Court, and yet it has now sought to complain in this Court that the full-time custodial sentence that was imposed in response to its persuasive submissions below was not enough. The expansion of the Crown's case is highlighted by the contention in this Court, which was not raised in the District Court, that the offences had an objective seriousness that was "around about the middle of the range".

Orders

88. I propose the following order:

Crown appeal dismissed.

89. BUTTON J: I agree with the proposed orders and reasons of R A Hulme J.

90. My agreement includes with what his Honour has written about the question of the necessity or desirability of sentencing judges and judges hearing sentencing appeals always viewing child abuse material. Having said that, in this particular case I have chosen to view it, in order to permit me to appreciate the gravity of the offending.

91. I agree with the proposition that the sentences imposed are very lenient, but not manifestly inadequate.

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Decision last updated: 15 August 2018