R v Jarrold

[2010] NSWCCA 69

New South Wales
Court of Criminal Appeal

CITATION:	R v Jarrold [2010] NSWCCA 69
HEARING DATE(S):	08/02/2010
JUDGMENT DATE:	3 May 2010
JUDGMENT OF:	McClellan CJatCL at 1; Howie J at 2; Harrison J at 79
DECISION:	1. Appeal is allowed. 2. The sentences imposed in the District Court except that imposed for Count 6 are quashed and the respondent sentenced as follows: Count 1: a fixed term of 12 months to date from 17 September 2009 and to expire on 16 September 2010. Count 2: a fixed term of 8 months to commence on 17 July 2010 and expire on 16 March 2011. Count 3: a fixed term of 12 months to commence on 17 March 2011 and expire on 16 March 2012. Count 4: a fixed term of 6 months to date from 17 June 2011 and expire on 16 December 2011 Count 5: a fixed term of 12 months to date from 17 September 2011 and expire on 16 September 2012. Count 7: a fixed term of 8 months to date from 17 September 2012 and to expire on 16 May 2013. Count 8: a term of 3 years 9 months from 17 May 2013. This is made up of a non-parole period of 1 year 10 months to expire on 16 March 2015, being the date upon which the respondent is eligible to be released to parole. There is a balance of term of 1 year 11 months to commence on 17 March 2015.
CATCHWORDS:	CRIMINAL LAW - Sentence - Crown appeal - offences of child sexual assault and pronography - whether sentences severally and in totality manifestly inadequate - whether judge erred in taking into account effects of protective custody - whether error in application of discount for guilty pleas - whether established pattern of sentencing for child sexual assault offences in 1970s - whether error in failing to accumulate some sentences - whether error in finding facts
LEGISLATION CITED:	Criminal Appeal Rules - r 76 Crimes Appeal and Review Act 2001 - s 68A
CATEGORY:	Principal judgment
CASES CITED:	Clinton v R [2009] NSWCCA 276 R v S [2000] NSWCCA 13 R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Borkowski [2009] NSWCCA 102 R v Moon [2000] NSWCCA 534; 117 A Crim R 497 R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368 R v Roberts (NSWCCA, unreported, 1 November 1974) R v Miller (NSWCCA, unreported, 29 July 1977); R v Hill (NSWCCA, unreported, 11 July 1979) R v Vince (NSWCCA, unreported, 28 May 1991) R v Gore-Johnson (NSWCCA, unreported, 16 April 1992) R v XX [2009] NSWCCA 115 Saddler v R [2009] NSWCCA 83 Mouscas v R [2008] NSWCCA 181 R v Sutton [2004] NSWCCA 225 R v JW [2010] NSWCCA 49
PARTIES:	Regina v Ashleigh Edward Jarrold
FILE NUMBER(S):	CCA 2009/7075
COUNSEL:	M Grogan - Crown P D Rosser QC - Respondent
SOLICITORS:	S Kavanagh - Crown John Anthony Solicitors - Respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2009/7075; 2009/210408
LOWER COURT JUDICIAL OFFICER:	Hosking DCJ
LOWER COURT DATE OF DECISION:	10/10/2009

2009/7075

McCLELLAN CJ at CL
HOWIE J
HARRISON J

MONDAY 3 MAY 2010

REGINA v Ashleigh Edward JARROLD

Judgment

1 McCLELLAN CJ at CL: I agree with Howie J.

2 HOWIE J: The Crown has appealed against sentences imposed in the District Court for offences related to child sexual assault and pornography to which the respondent had pleaded guilty. He was sentenced by Hosking DCJ (the Judge) on 16 October 2009.

3 A Notice of Appeal was filed on 27 January 2010. It contained no grounds of appeal. The Crown filed written submissions prior to the hearing of the appeal and the respondent filed written submissions in response. Although the Crown raised specific complaints about the sentences imposed and his Honour’s sentencing remarks, no actual grounds of appeal appeared in the written submissions of the Crown, contrary to a practice that has long been adopted by the Crown in this Court. It was not until after judgment was reserved that this defect was detected. Accordingly the Court, pursuant to r 76 of the Criminal Appeal Rules, directed that the Crown file grounds of appeal in accordance with the written submissions. The Crown filed the grounds on 16 March 2010.

4 The respondent was before the District Court on an indictment containing the following charges:

Count 1 Indecent assault of AB, a male, between 1 January 1978 and 31 August 1979: Crimes Act s 81 (now repealed).

Count 2 Indecent assault of AB, a male, between 1 January 1978 and 31 August 1979: Crimes Act s 81 (now repealed).

Count 3 Produce child pornography between 23 March 2006 and 17 April 2008: Crimes Act s 91H(2).

Count 4 Produce child pornography on 6 October 2006: Crimes Act s 91H(2).

Count 5 Produce child pornography between 7 January 2007 and 28 March 2008: Crimes Act s 91H(2)

Count 6 Use an internet service to transmit child pornography on 18 May 2006: Criminal Code (Cth) s 474.19(1)(a)(iii).

Count 7 Have child pornography in possession on 9 October 2008: Crimes Act s 91H(3).

Count 8 Between 10 August and 17 September 2009 exposed a child to indecent material with the intention of making it easier to procure the child for unlawful sexual activity for himself; Crimes Act s 66EB(3).

5 In addition the respondent asked the sentencing judge to take into account separate Form 1’s on five of the offences on the indictment, being counts 1, 3, 4, 5, and 6.

6 The maximum penalties prescribed are:

Counts 1 and 2: imprisonment for 5 years.

Counts 3 to 5: imprisonment for 10 years.

Count 6: imprisonment for 10 years.

Count 7: imprisonment for 5 years.

Count 8: imprisonment for 10 years.

7 The respondent was sentenced as follows:

Count 1: Fixed term of imprisonment of 7 months to date from 17 September 2009 and expire 16 April 2010.

Count 2 Fixed term of imprisonment of 5 months to date from 17 January 2010 and expire 16 June 2010.

Counts 3-5 Fixed term of imprisonment of 6 months to date from 17 June 2010 and expire 16 December 2010.

Count 6 Fixed term of imprisonment of 3 months to date from 17 December 2010 and expire 16 March 2011.

Count 7 Fixed term of imprisonment of 3 months to date from 17 March 2011 and expire 16 June 2011.

Count 8 A term of imprisonment with a non-parole period of 15 months from 17 June 2011 and a balance of term of 2 years.

8 The overall sentence imposed upon the respondent for all offences, and taking into account the matters on the Form 1’s, was a term of imprisonment made up of an overall non-parole period of 3 years with a balance of term of 2 years. The applicant is eligible to be released to parole on 16 September 2012.

9 There was no appeal in respect of the sentence imposed for count 6, the offence contrary to the Criminal Code.

10 The Grounds of Appeal filed are as follows:

1 . His Honour erred by failing to impose sentences on counts 1 and 2 which reflected his finding that the offences were “a most serious example” of the offence of Indecent Assault.

2. His Honour erred in imposing substantially concurrent sentences on counts 1 and 2.

3. His Honour erred in finding that there was an established sentencing range for counts 1 and 2.

4. His Honour erred in accepting that the basis for the utilitarian discount included the consequence that the victims did not have to give evidence.

5, His Honour erred in extending an undue benefit to the respondent in relation to his finding that the respondent would be in “some form of protective custody” in the absence of any evidence to support this finding. This error was compounded by his Honour reducing both the term of the sentence and the non-parole period as a result of this finding.

6. His Honour erred in finding that the acts spoken of were “fantasies from the offender’s mind” and using this finding to diminish the seriousness of the offences.

7. His Honour erred in imposing wholly concurrent sentences in relation to counts 3, 4 and 5.

8. His Honour erred in finding that the offence in relation to count 7 was below the mid range of objective seriousness. His Honour erroneously relied upon the strength of the Crown case to reduce the seriousness of the offence.

9. His Honour erred in relation to count 8 in reducing the seriousness of the offence because there was a “degree of entrapment”.

10. The sentences imposed failed to incorporate any meaningful element of general or specific deterrence.

11. Both the individual sentences and the overall sentence were manifestly inadequate.


The facts
Counts 1 and 2

11 Counts 1 and 2 related to offences committed against one of a pair of teenage brothers in the late 1970s. There was also a matter on a Form 1 that was to be taken into account on count 1 that related to the other brother. The offences were alleged to have been committed between 1 January 1978 and 31 August 1979. The respondent was not charged with the offences until 2009. The younger brother, AB, was born on 7 May 1965. His elder brother, JB, was born on 25 April 1964. At the date of the offending the respondent was aged 26, AB 13 and JB 14.

12 The brothers lived with their father after their parents separated. They resided in the Verger’s Cottage of Christ Church Cathedral in Newcastle. Their father was a homosexual and various men came to the cottage. One of these was the respondent. On one occasion the boys were sent to bed so that the adults could watch pornographic movies. At one stage the respondent entered AB’s bedroom and crouched beside the bed. He invited the boy to come to his house and watch pornography. He then asked, “Would you like me to suck your dick?” and the child agreed. The respondent took down the child’s pyjama pants and commenced to suck his penis. He continued until the boy ejaculated into the respondent’s mouth. This conduct gave rise to count 1.

13 Several days later AB went to the respondent’s apartment. The respondent played him a pornographic film and while it was playing asked him, “Do you want your dick sucked again?” The child agreed and the respondent fellated him until he ejaculated into the respondent’s mouth. This conduct gave rise to count 2.

14 The relevant Form 1 matter referred to an incident that occurred with JB. He awoke one evening to find the respondent lying in his bed fondling his, the child’s, penis. He continued this activity until the respondent ejaculated. He then left the room.

Count 7

15 The police executed a search warrant on one of the respondent’s premises in October 2008. An unmarked disk was found in a box located in the hallway. The disk was named “Ashleigh’s files” and contained 6,791 images of young men involved in sexual activity either alone or in company with others. There were 129 images of boys between the age of 8 and 15 years who were either in a sexual position or engaging in sexual activity with other boys or men. Most of these images according to the COPINE rating system have a rating between 6 and 9.

Count 3

16 Searches were made of computer items and discs found in the respondent’s properties. These revealed that the respondent had been involved in “chat rooms” using the name Ashleigh.

17 The respondent was involved in Internet communications with a male who was aged 17 when the respondent first came in contact with him. The communications continued until the male was aged 21. This male was also charged with offences. Saved on the respondent’s computers were texts dating between 24 March 2006 and 16 April 2008 arising from these communications. In them the respondent described sexual activity between himself and children including degrading acts and anal intercourse. He indicated the pleasure he derived from seeing children screaming and whimpering with pain. The possession of this material gave rise to an offence on the Form 1 in connection with this count.

Count 4

18 This count related to an offence arising from a conversation the respondent had with a male on a “chat room” on 6 October 2006. This communication involved discussions about having intercourse with under-aged males. The material rates 10 on the COPINE scale. The respondent kept an electronic record of this communication and this gave rise to an offence on a Form 1 in connection with this count.

Count 5

19 The respondent communicated with a young male, who went by the name of “Ashes”. The male stated his age as 16 and that he lived in England. They exchanged live web-cam images showing them each involved in sexual activity. The respondent saved records of these communications. Some of them refer to the torture of children, and the pleasure they gained from children screaming in pain during sexual acts. The respondent urged Ashes to have intercourse with any child born of his sexual activity with a 13 year old girl. There are references to sadistic acts. The respondent’s possession of the record of these communications gave rise to an offence on the Form1 related to this count.

Count 8

20 On 6 August 2009 a police officer posing as an under age child, “M”, created an account on a website which was visited by the respondent under the name “Ashmike”. In effect the respondent commenced to groom the police officer, who had stated that he was aged 15, to homosexual activity through their communications in a “chat room”. There were numerous communications between the two from 10 August 2009 to 16 September 2009. On 31 August 2009 the respondent changed his profile image to a photograph of his penis. This was visible to “M” for a brief period of time. This activity gave rise to the offence on a Form 1 related to this count. The communication gradually became more related to sexual activity, the respondent telling “M” of homosexual activity in which he was involved and telling “M” that he “would love it”.

21 On 3 September 2009 the respondent told “M” that he hoped to go to Terrigal with the intention of meeting him and that he could engage in any sexual activity that he wished with the respondent. He described some of these activities. The respondent in later communications offered to teach “M” any sexual activity in which he was interested.

22 On 9 September 2009 the respondent informed “M” that his partner had told him that he could not meet “M” because of his pending court case. That was a trial in relation to the charges in counts 1 and 2. On 14 September 2009 the respondent told “M” that they would meet after the court case. He referred to “M” as “baby” and “sexy”. The final communication between the two occurred on 16 September 2009 when the offender gave “M” information about obtaining pornography from the Internet. A camera lawfully installed by police in the respondent’s residence showed him masturbating when he was communicating with “M”.

Subjective matters

23 The respondent was born in 1952. He has one relevant conviction being commit an act of indecency in 1984 for which he was placed upon a recognizance for 3 years. That offence concerned an approach by the respondent to a 12 years old boy and an offer by the respondent to fellate him. There was no other material placed before the Judge and the respondent did not give evidence.

Grounds of appeal
Ground 5 Manner of serving his sentence

24 It is convenient to deal with this ground first because, if the complaint is made out, it affects all of the sentences imposed by his Honour.

25 In his sentencing remarks the Judge stated:

I do take into account that for somebody who has committed offences like these, the offender is likely to be kept in some form of protective custody throughout the whole time he is in custody. I have no evidence as to whether this may be more or less onerous than serving the sentence in the general prison population, however, even though I have no direct evidence of it, I am prepared to take into account the oft stated principle by judges now for decades, that serving a sentence on protection can be and often is, more onerous than serving a sentence as part of the general prison population. Part of the difficulty in this is that I have no idea where the offender will be kept by Corrective Services or what kind of protection he will be kept in. All I can do, as I will (sic), is that I have factored this factor generally into his sentences and particularly in relation to a finding of special circumstances, under s 44 of the Sentencing Act, that I make in relation to count eight. In addition in relation to special circumstances, I have taken into account that this is the offender's first time in custody.

26 The Crown complains that it was not open to the Judge to take into account either that the respondent would spend his time in custody on protection or what form of custody that might involve. Further his Honour took into account the more onerous conditions of his custody, of which there was no evidence, both in determining the sentence and again in finding special circumstances. The respondent did not address this complaint.

Decision

27 In my opinion this complaint is made out. Courts should no longer assume that being in protective custody will place an offender into a more onerous prison environment than being part of the general prison population. There is nothing new in this approach. It dates at least from 2003. This Court has recognised from evidence repeatedly placed before it that no assumption can be made about the form of a person’s custodial regime and has determined that, if the offender wants to have such a consideration taken into account, the offender should present evidence of it.

28 His Honour’s reference to “the oft stated principle by judges now for decades” overlooks the oft-stated principle by this Court in more recent times. In Clinton v R [2009] NSWCCA 276 it was stated:

In any event, decisions about the significance of protective custody given before R v Durocher-Yvon [2003] NSWCCA 299; 58 NSWLR 581 should be read in the light of that decision and the different approach that was then taken to the relevance of the fact that a person was in protective custody. The change to the approach previously taken was as a result of information provided to the Court that revealed that protection did not necessarily result in harsher prison conditions. That change in approach was continued in R v Mostyn [2004] NSWCCA 97; 145 A Crim R 304, was approved in R v Way [2004] NSWCCA 131; 60 NSWLR 268 at [177] and has been applied to cases where assistance has been given to authorities: R v Sukkar [2006] NSWCCA 92.

29 Where harsher conditions of protection are proved, that is a matter taken into account in determining the length of the term on the basis that the offender may not be released to parole. If it is taken into account in that way, it automatically has an effect on the non-parole period because of the statutory relationship between the non-parole period and the total term. It should not be taken into account again in a finding of special circumstances because it is in effect double counting: see R v S [2000] NSWCCA 13 at [33]. It was wrong for the Judge to give it greater weight in finding special circumstances without explaining how that factor warrants a further reduction in the non-parole period than the reduction that occurred as a result of the reduced total term.

30 Further, there was no basis for a finding of special circumstances simply because it was the respondent’s first time in custody. As the respondent’s prospects of rehabilitation were found by his Honour to be “either nil or close to nil” there was nothing that warranted a longer period on parole and no reason to reduce the non-parole period.

31 In my opinion this error has infected the whole of his Honour’s sentencing discretion. I note that the respondent placed no evidence before this Court to show that his custody has been harsher by reason of his need for protection or for any other reason. It should be assumed that his Honour’s approach was factually in error as well as being wrong in principle.

Ground 4 – Discount for pleas of guilty

32 It is convenient to deal with this ground next as it affects consideration of the sentences for counts 1, 2 and 7. The complaint is that the Judge took into account in determining the utilitarian value of the pleas of guilty the fact that the complainants did not have to give evidence. The respondent maintains that his Honour was not in error.

Decision

33 The Judge noted that there were two sets of offences those charged in October 2008, being counts 1, 2 and 7 and those charged in September 2009. The first group of matters had been listed for trial on 28 September 2009. His Honour noted that there were to be three trials heard back to back with a total estimate of three weeks. The pleas of guilty came on the third day of the first trial.

34 In respect of those matters the Judge stated:

As the Crown submits in its submissions, the utilitarian benefit of those pleas relates to the time saved to the court and the community in obviating the need for trials to actually be held, and of considerable importance, sparing the two complainants, the young man I mentioned in relation to counts 1 and 2, AB, and his brother JB, being spared the experience of giving evidence at a public trial.

35 The utilitarian value of a guilty plea does not encompass the fact that witnesses were saved from giving evidence This was made clear in R v Thompson and Houlton [2000] NSWCCA 309; 49 NSWLR 383 and reiterated in R v Borkowski [2009] NSWCCA 102, a decision handed down in April 2009, well before the respondent was sentenced. It was not only the Judge who was in error. His Honour was, in effect, quoting from the Crown’s written submissions that were also erroneous. However, the Crown did not assert that the fact that the witnesses would not be required to give evidence was “of considerable importance”. That was his Honour’s embellishment and exacerbated the error by the Crown. As his Honour found that the respondent showed no remorse, the fact that the complainants were spared from giving evidence was irrelevant.

36 The Judge does not actually indicate what discount he gave for those pleas but realistically there should have been none for the first matter and 10 per cent for the other two matters. The trials had been prepared and the only utilitarian value was saving about two weeks of court time. In considering the sentences imposed for counts 1, 2 and 7, no discount should be taken into account for count 1 and 10 per cent for counts 2 and 7.

Grounds 1-3 Sentences for counts 1 and 2

37 The Crown complains that the sentences imposed for the first two counts did not accord with the Judge’s finding that the offences were “a most serious example” of their kind. It was also submitted that the Judge erred in the degree to which the sentences were made concurrent. It was also argued that his Honour erred in finding an established sentencing range for these offences.

38 His Honour stated that he had to impose sentences that “reflect the sentencing pattern in the late 1970s and not the very different sentencing patterns that apply in 2009 for this kind of offence”. After referring to a number of cases placed before him, the Judge stated:

I take into account, as [defence counsel] properly urged me to do, that back in the late 1970s under a different sentencing regime an offender’s non-parole period was usually set at somewhere between a third and one half of what used to be called the head sentence. In relation to these matters, I take into account amongst other things that these boys were indecently assaulted in their own beds. In my view, each was a most serious example of the offence of indecent assault, even having regard to the sentencing tariffs in the late 1970s, and each must attract a custodial sentence.

39 The respondent submitted that there was no error in his Honour’s approach to determining the sentence to be imposed for each offence in counts 1 and 2, and that the cases referred to by his Honour provided some assistance to him. He accepted that after 30 years it was difficult to determine an established pattern with precision. It was submitted that a sentence of 9 months for the two offences and the matter on the Form 1 could not be said to be manifestly inadequate having regard to the different sentencing regime that then existed and the proportion of the head sentence that normally formed the non-parole period. It was noted that there was no suggestion that the offences against AB were other than isolated acts.

Decision

40 His Honour was required to sentence on the basis of a proved pattern of sentencing for such matters at the time or, if he could not identify a pattern, he should have followed what I said in R v Moon [2000] NSWCCA 534; 117 A Crim R 497 at [70]–[71] and adopted by the majority in R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368 as follows:

The nature of the criminal conduct proscribed by an offence and the maximum penalty applicable to the offence are crucially important factors in the synthesis which leads to the determination of the sentence to be imposed upon the particular offender for the particular crime committed. Even after taking into account the subjective features of the offender and all the other matters relevant to sentencing, such as individual and general deterrence, the sentence imposed should reflect the objective seriousness of the offence: ..................... , and be proportional to the criminality involved in the offence committed:....................... . Whether the sentence to be imposed meets these criteria will be determined principally by a consideration of the nature of the criminal conduct as viewed against the maximum penalty prescribed for the offence.

When sentencing an offender for offences committed many years earlier and where no sentencing range current at the time of offending can be established, the Court will by approaching the sentencing task in this way effectively sentence the offender in accordance with the policy of the legislature current at the time of offending and consistently with the approach adopted by sentencing courts at that time."

41 The Crown complains that there was no range available to his Honour from the few cases that were placed before him. The cases the Judge considered were R v Roberts (NSWCCA, unreported, 1 November 1974); R v Miller (NSWCCA, unreported, 29 July 1977); R v Hill (NSWCCA, unreported, 11 July 1979); R v Vince (NSWCCA, unreported, 28 May 1991) and R v Gore-Johnson (NSWCCA, unreported, 16 April 1992). The maximum penalty for the offence of indecent assault male was penal servitude for 5 years. It is to be noted that the offence could be committed against a male of any age.

42 Roberts concerned two offences committed on a child of 8 or 9 years on separate occasions. The type of assault was not stated. The applicant had some record of indecency. The applicant was described as of “relatively advance years” suffering a permanent disability as a result of polio. The Court intervened to pass concurrent sentences of 2½ years with a non-parole period of 12 months.

43 Miller was aged 21 and the victim was 14 years. The offence occurred in a motel room after they had both consumed alcohol. The act of indecency was not stated, but the Court indicated that the applicant had pleaded not guilty to assault with intent to commit buggery and the plea to the indecent assault was taken in full discharge of the indictment. The applicant was of good character. The Court did not interfere with a sentence of 2½ years and a non-parole period of 6 months.

44 Hill concerned multiple offences for which, after intervention by the Court, the applicant was sentenced to imprisonment for 11 years with a non-parole period of 5 years.

45 In Vince the offences were homosexual intercourse and committing an act of gross indecency. The offences occurred in 1989. I cannot see how that decision could inform his Honour of anything about sentencing in the 1970s for different offences having different maximum penalties. Similarly Gore-Johnson was of little or no assistance being an offence of homosexual intercourse committed on a 15 year old boy by a man aged 60 of good character and in ill health.

46 I do not believe that there was any established pattern of sentencing or anything approaching a tariff that the Judge could have discerned from the cases placed before him. The respondent concedes as much. Like his Honour, I do not accept that the respondent may have received a non-custodial sentence had he been sentenced in the late 1970s. His Honour correctly described them as “a most serious example of indecent assault”. The boys were both at an age well below the age of consent. Not only did the first count occur in the child’s own home but also in his bed.

47 In my opinion the sentence of 7 months taking into account the matter on the Form 1, which concerned conduct with a different child was manifestly inadequate particularly if no discount is applied. I appreciate this is the equivalent of a non-parole period being about a third to a half of the total sentence. Similarly a sentence of 5 months taking into account a discount of 10 per cent was manifestly inadequate. Further a total sentence of 9 months for both assaults was also manifestly inadequate by reason of the overly-generous overlapping of the two sentences for what were separate offences committed on different occasions. This is notwithstanding that at the time the applicant had no criminal record.

48 In my opinion the appropriate sentence should have been one totalling 18 months imprisonment by way of a fixed term.

Grounds 6 and 7 Sentences for counts 3 to 5

49 After referring to the three offences and their facts the Judge stated:

My impression, clear impression from reading this material is that as disgusting as this material was, that it was a fantasy or that these were fantasies from the offender’s mind, rather than actual acts that ever happened to any actual child.

50 Later his Honour rejected a submission made on the respondent’s behalf that the offences were technical and would not warrant a custodial sentence. The Judge stated:

…………..However, in my view a significant part of the criminality in what the offender did by the offences represented in counts 3 through to 5 inclusive, was in committing his perverted thoughts to print across the internet, meant that those thoughts could have been saved by the receivers onto a computer hard disk of their own and perhaps been further disseminated to others interested in this perverted material, or even worse, published generally on the internet available to anyone who sought it out.

For those reasons in my view, there must be some custodial sentence in relation to counts 3, 4 and 5. In my view, each of those counts should bring a sentence of imprisonment of six months as a fixed term, but for the reasons I have indicated in my assessment, there is no need to accumulate those sentences. I propose imposing sentences of six months, each concurrent with the other

51 The Crown complains that the sentences for these offences were manifestly inadequate. It argues that, without any evidence to support it, his Honour found that what the respondent was saying in the three conversations he had with different people in a chat room were “fantasies”. Further the Crown complains that the sentences were made wholly concurrent yet they involved three separate acts of criminality.

52 The respondent argues that his Honour was entitled to treat counts 3, 4 and 5 as arising from a single course of criminal conduct and, therefore, it was appropriate for there to be concurrent sentences. The respondent accepts that the offence was not dependent upon whether the content of the communications were true. He stresses that it was intended that the conversations would be private and that the pornography was jointly created by the respondent and the recipient. The respondent submits that the offence involved “none of the vices to which the criminalization of child pornography was aimed”.

Decision

53 Whether or not the material discussed in the communications was the result of fantasies or accounts of actual events was irrelevant. If there was evidence to prove these events actually happened, other charges might have been brought against the respondent. If his Honour’s finding was made in order to diminish the seriousness of the offences, then he was in error.

54 I do not understand to what his Honour was referring in that part of his reasons quoted above when he said “as he had indicated from his assessment” there was no need to accumulate the sentences. I can see nothing that justified the decision to make the sentences concurrent. These were three separate offences committed with three different persons and at different times. Count 3 related to numerous conversations with the one individual over a period of about two years between March 2006 and April 2008 and was stored on a computer at Hamilton. Count 4 was committed on 6 October 2006 with a different person and was material stored on the respondent’s computer at Darlinghurst. Count 5 related to communications with a third individual for a period of over about a year between January 2007 and March 2008 and stored on the computer at Hamilton.

55 Not only were the offences separate and distinct, two of them were committed over a lengthy period of time. The charges in counts 3 and 5 related to ongoing criminal activity. However, I accept that otherwise the offences were at the lower end of the range of activity that is covered by the section.

56 In my opinion the sentences for counts 3 and 5 were manifestly inadequate in light of the period over which the communications took place and the material was stored. Further his Honour’s discretion miscarried in ordering that the sentences be concurrent. On numerous occasions this Court has explained that sentences are not to be made concurrent simply because of the similarity of the conduct or because it may be seen as part of the one course of criminal conduct: see generally R v XX [2009] NSWCCA 115. The question to be asked is, can the sentence for one offence encompass the criminality of all the offences? Asking that question of these three offences could only result in the answer “No”.

57 I am not persuaded that the sentence for count 4 is inadequate even though it was apparently infected by his Honour’s error about the respondent’s custodial situation. However, the sentences for counts 3 and 5 were manifestly inadequate and should have each been 12 months. The total of the criminality for these three offences should have been 18 months after a discount of 25 per cent.

Ground 8 Sentence for count 7

58 This offence related to a disc containing 129 pornographic images of young males between the ages of 8 and 15 years. This count was to be subject to trial when the respondent pleaded guilty. The Judge did not indicate what discount he was allowing but, as I indicated earlier, it could not have been more than 10 per cent. He imposed a sentence of 3 months against a maximum penalty of 5 years.

59 His Honour said in relation to this offence based upon submissions made to him on behalf of the respondent:

They included these things: That by comparison to a number of reported and/or well-known sentencing cases in relation to the possession of child pornography those included in this disc in question, is relatively small. He submitted that the most common COPINE level of the material was seven, or about seven. That the present case falls below the mid range of seriousness for this offence, for those reasons in part. Importantly that this disc was found not on the offenders hard drive, but on a CD in a box of rubbish in the hallway apparently to be thrown out. The point of that in substantial part, [defence counsel] submits is this, that the offender occupied these premises with his partner, MO, that had the offender not admitted to being the possessor of the images on this CD, that having regard to the kinds of considerations in the well known drug case R v Filipetti , that the Crown would have had considerable difficulty, absent any admission, proving beyond reasonable doubt that this disc was ever in the possession of the offender. That is because in a trial, objection would have been taken to admissibility of the disk on the basis of the description, “Ashleigh’s files” on the basis that anybody else could have written “Ashleigh’s files” onto the disc, including Mr MO, or perhaps some other person. The short of it is this, that by his plea of guilty, the offender has admitted what the Crown probably could not have proved against him, ie, that he was the possessor of these images.

Taking into account all those matters, in my view, the appropriate sentence for this matter is a fixed term of imprisonment of three months. It is significantly different for the reasons I have indicated than other well known cases where it is proven against an offender that an offender has usually on a hard disk or series of them thousands if not tens of thousands of these kinds of images. Cases like that bring a higher sentence. For the reasons I have indicated in my view for these images the sentence of a fixed term of three months is appropriate.

60 The Crown complains that his Honour’s consideration of the strength or otherwise of the Crown case was irrelevant and made without a real understanding of all the evidence the Crown might have called at the trial. In particular the Crown takes issue with his Honour’s reference to the disk being in a box of rubbish that was apparently to be thrown out, as the statement of facts contains no reference to the box being filled with rubbish or that it was apparently to be thrown out. It was submitted that this finding could only have been relevant to diminish the seriousness of the offence. It is also complained that the sentence was manifestly inadequate having regard to the nature of some of the pornographic material and contains no element of deterrence.

61 The respondent submits that the most important factor in his Honour’s sentence was the number of images. The Judge was referred to three other cases including Saddler v R [2009] NSWCCA 83 and Mouscas v R [2008] NSWCCA 181 and asked to compare the amount of the pornographic material in those cases with that in the respondent’s possession. It is noted that the Crown did not object to evidence being led during the defence address of stills from the search indicating where the disk was found and the material in the box.

Decision

62 The question of the strength of the prosecution case was only relevant to the question of remorse. It was not relevant to the utilitarian value of the plea: R v Sutton [2004] NSWCCA 225. As his Honour found that the respondent showed, “absolutely no remorse at all for these various offences”, the question of whether the Crown could have proved the charge without a plea of guilty was irrelevant. Whatever weight the Judge gave to this consideration is unknown but it played a significant part of his reasons. Therefore his discretion miscarried.

63 Whether or not the disk was to be thrown out was also irrelevant. The respondent was to be sentenced on the basis that he had in his possession child pornography. Although the COPINE average rating might have been 7 there were four images with a rating of 9 and one with a rating of 8 each showing a child engaged in sexual activity with an adult.

64 In Saddler there were 45,000 images and 700 movies. The sentence imposed by the Court was effectively 5 years with a non-parole period of 3 years 9 months. It was held to represent conduct in the “upper echelons of this kind of offending”. That decision refers to a number of cases including Mouscas where the Court also found that the offending was at the “upper-end” of the range of seriousness. In that case the non-parole period was 18 months.

65 One of the decisions referred to in Saddler was the sentencing in the District Court of a 71 year old man with “health problems” for possession of some hundreds of images. He received a non-parole period of 9 months after conviction by a jury. Although this was simply a sentencing decision of a judge at first instance it does indicate to me that the present sentence is inadequate. From the information contained in Saddler the offence was a little more serious than that committed by the respondent, yet there were significant subjective matters and none in the case of the respondent.

66 Another decision was Power an appeal from a decision of a magistrate to the District Court. In that case the offence was far more serious than this by reason of the nature and the extent of the pornography. But the offender had very significant subjective matters with unblemished character. He received a non-parole of 6 months.

67 It is difficult to compare individual sentences because the facts vary so significantly as do the circumstances of the offender. But in any event a sentence of 3 months after a discount of no more than 10 per cent imposed upon a person who was engaged in pornographic activity involving young children to a very significant degree was insufficient to reflect the seriousness of the offence despite the relatively small number of images. The sentence should have been 8 months after discount.

Ground 9 Sentence for count 8

68 The count related to what was in effect an attempt by the respondent to groom a 15 year old boy over the Internet for a period of just over a month. It was committed while the respondent was on bail awaiting trial for counts 1, 2 and 7. The respondent was advised by his partner to postpone meeting the boy until after the trial. The respondent was not in fact communicating with a child named “M” but with a police officer. The respondent was sentenced to imprisonment for 3 years 3 months with a non-parole period of 15 months.

69 The Judge was of the opinion that, having regard to the sentencing regime operating in relation to counts 1 and 2, this offence was “the most serious of all of these matters”. The Judge indicated he had given the respondent a discount for his plea of guilty but did not indicate what it was. It should be presumed it was 25 per cent. His Honour accepted that general deterrence and specific deterrence were important considerations. It was in relation to this offence that his Honour made the comments regarding the respondent’s protective custody. His Honour then stated:

In relation to count eight I do accept as submitted by [defence counsel], that there was a degree of entrapment involved in this, although in saying that I am not to be taken as being in any way critical of the police involved. Sadly, experience shows that using police officers in this undercover way is sometimes the only way of ensuring that people like the offender can be caught. All I will say further about entrapment is this, that had the offender's correspondent not been in fact a police officer, but had really been a fifteen year old boy, then his sentence would have been considerably greater than the sentence I in fact am about to impose upon him for count eight.

70 The Crown complains that the issue of entrapment did not arise in such a way that it should have had any effect upon the sentence at all. It was submitted that the true identity of “M” was irrelevant when the respondent believed he was an under-aged male whom he was endeavouring to encourage to engage in unlawful sexual activity. It was submitted that because the offence was difficult to detect this factor should result in a sentence that was sufficient to deter others from engaging in this type of activity.

71 The respondent argues that the fact that “M” was not an under-aged child was not a matter of mitigation but resulted in an absence of what would be an aggravating circumstance. It was noted that while a tentative arrangement was made for the respondent to meet “M” he took no active steps to do so. It was submitted that the sentence was within the range open to his Honour having regard to decided cases.

Decision

72 It was in my opinion a relevant matter for the Judge to take into account that “M” was not in fact an under-aged child, because there was no risk that a child would be involved in sexual activity with the respondent or any other male. It was, however, in any other way irrelevant that the respondent had been “entrapped” into his criminal conduct by the police.

73 As his Honour noted the offence was very significantly aggravated by the fact that the applicant was on bail. So little respect did the applicant have for the fact that he faced serious criminal charges of sexual activity with children that he was contemplating offending in a similar way shortly before the trial was due to commence. Apparently it was only the common sense of his partner that prevented the respondent actually carrying through what was obviously his intentions of introducing “M” into sexual activity with him and other adult males.

74 Again the sentence for this offence and in particular the non-parole period are infected by the Judge’s erroneous views about the effect of the respondent’s protective status upon the nature of his custody. Because he erred in this way it is open to this Court to consider whether there were special circumstances, and, as I have already indicated, there were none. In my opinion there were no special circumstances simply because the offender was to serve his first period in custody. There was no reason, given the absence of remorse, for there to be a longer period on parole than would be provided by an application of the statutory relationship between the head sentence and the non-parole period.

75 I am uncertain as to how his Honour derived the sentence he did. In my opinion the sentence should have been 5 years less 25 per cent. This is about 3 years 9 months. I accept that if this were the only sentence being considered by the Court it may be considered to be tinkering to increase the sentence by 6 months. The same can be said of the increase to other sentences. But it should be obvious that the Court has by and large to re-sentence the respondent and restructure the sentences imposed upon him in order to achieve a just result.

Conclusion

76 The resolution of the appeal must be considered in light of the decision in R v JW [2010] NSWCCA 49 and the enactment of s 68A of the Crimes Appeal and Review Act 2001.

77 In my opinion the appeal must be allowed. The sentences were manifestly inadequate to a very substantial degree. There are a number of errors in the exercise of his Honour’s discretion one of which tainted the whole sentencing process. There is no discretionary reason for the Court not intervening and imposing the sentence that ought to have been imposed in the District Court. Fixed terms have been imposed because of the sentenced to be imposed for Count 8. The only special circumstances in fixing the non-parole period for that count is the accumulation of sentences. My intention is that the respondent should serve a total sentence of 7 years 5 months and an overall minimum period of custody of 5 years 6 months. As there was no appeal in respect of Count 6 that sentence remains as it was imposed.

78 I propose the following orders:

1. Appeal is allowed.

2. The sentences imposed in the District Court except that imposed for Count 6 are quashed and the respondent sentenced as follows:



Count 1: a fixed term of 12 months to date from 17 September 2009 and to expire on 16 September 2010.

Count 2: a fixed term of 8 months to commence on 17 July 2010 and expire on 16 March 2011.

Count 3: a fixed term of 12 months to commence on 17 March 2011 and expire on 16 March 2012.

Count 4: a fixed term of 6 months to date from 17 June 2011 and expire on 16 December 2011

Count 5: a fixed term of 12 months to date from 17 September 2011 and expire on 16 September 2012.

Count 7: a fixed term of 8 months to date from 17 September 2012 and to expire on 16 May 2013.

Count 8: a term of 3 years 9 months from 17 May 2013. This is made up of a non-parole period of 1 year 10 months to expire on 16 March 2015, being the date upon which the respondent is eligible to be released to parole. There is a balance of term of 1 year 11 months to commence on 17 March 2015.

I agree with Howie J.

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