R v Jongsma

[2004] VSCA 218

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 268 of 2003

THE QUEEN

v.

RICHARD JONGSMA

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JUDGES:	BATT and EAMES, JJ.A. and GILLARD, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 October 2004
DATE OF JUDGMENT:	7 December 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 218	2nd Revision:  7 February 2005

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CRIMINAL LAW – Sentencing – Indecent acts with or in presence of child under 16 (12 counts), causing child to take part in prostitution (2), producing child pornography (2) and possession of child pornography, being very many images from Internet stored electronically as well as that produced by offender – Guilty pleas – No relevant prior convictions – Victims not unwillingly participated for money or cigarettes – Three years’ imprisonment for possession, maximum being five – Total effective sentence of 8 years’ imprisonment and non-parole period of 6 – Whether individual sentences disproportionate or inconsistent – Whether cumulation erroneous – Only direction for total cumulation of one sentence erroneous and only possession sentence manifestly excessive – Re-sentenced to 7 years’ imprisonment and 5 years 3 months non-parole period.

CRIMINAL LAW – Appeals – Procedure – Obligation on Crown to keep and, on notice from Registrar, produce trial exhibits – R.S.C. Chap.VI, R.2.18(1) and (2).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. C.G. Hillman, SC	Ms K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr. S. Gillespie-Jones	Paul Vale Criminal Law

BATT, J.A.:

1. On 18 September 2003 the appellant, Richard Jongsma, who was born on 9 May 1962 and at the dates of the offences in question in this appeal was aged from 39 to 40 years, pleaded guilty on arraignment in the County Court at Melbourne to seven counts (counts 1, 2, 3, 8, 10, 11 and 14) of committing an indecent act with a child under 16 years contrary to s.47(1) of the Crimes Act 1958; five counts (counts 4, 5, 9, 13 and 16) of committing an indecent act in the presence of a child under 16 years contrary to the same sub-section; two counts (counts 6 and 7) of causing a child[1] to take part in an act of prostitution, contrary to s.5(1) of the Prostitution Control Act 1994; two counts (counts 12 and 15) of producing child pornography[2], contrary to s.68(1) of the Crimes Act 1958; and one count (count 17) of knowingly possessing child pornography, contrary to s.70(1) of that Act. The maximum custodial penalty for all the offences other than possessing child pornography was imprisonment for ten years. That of possessing child pornography, was imprisonment for five years. The appellant admitted four previous findings of guilt for offences of dishonesty from a Magistrates’ Court appearance on 25 November 1982 and 33 previous convictions for theft from a Magistrates’ Court appearance on 2 October 1998. They may be treated as largely immaterial for present purposes.

   [1]For the purpose of the Prostitution Control Act “child” meant, by virtue of s.3(1) of that Act, a person under the age of 18 years.

   [2]By s.67A of the Crimes Act as in force at the relevant time “child pornography” meant a film, photograph, publication or computer game that describes or depicts a person who is, or looks like, a minor under 16 engaging in sexual activity or depicted in an indecent sexual manner or context.  “Minor” is defined as meaning a person under the age of 18 years and the effect of the definition of “film” is to include video tapes although they do not contain visual images. 

1. After the prosecutor had opened the facts of the offending and tendered the photographs that constituted the child pornography the subject of counts 12 and 15, photographs of the indecent acts the subject of count 4, and victim impact statements by all but one of the victims and by the family or parents of three of them, his Honour heard a plea for leniency during which the appellant and four other persons gave evidence and a report by Mr. Jeffrey Cummins, a clinical and forensic psychologist, and various references were tendered.   During the plea the prosecutor tendered three CD ROMs and four floppy disks (as Exhibit 9) and also tendered another document.  Representative parts of the CD ROMs and floppy disks were played before his Honour.  The plea continued into the following day. 

1. On 26 September 2003 his Honour sentenced the appellant to be imprisoned as follows[3] and made directions for cumulation upon the sentence on count 8 as indicated below:

   [3]I use letters in place of the names of the respective victims.

Count 1      Indecent act (with A)  18 months

Count 2      Indecent  act (with A)  2 years, of which 6 months cumulative

Count 3      Indecent act (with A)  2 years
Count 4      Indecent act (in presence of A)               12 months
Count 5      Indecent act (in presence of A)               18 months
Count 6      Causing child (B) to take part in

prostitution  6 months

Count 7      Causing child (B) to take part in

act of prostitution  18 months, of which 12 months cumulative

Count 8      Indecent act (with A)  2½ years (base sentence)
Count 9      Indecent act (in presence of C and A)    18 months
Count 10     Indecent act (with C)   2 years, wholly cumulative
Count 11     Indecent act (with C)  2 years
Count 12     Producing child (A) pornography        9 months
Count 13     Indecent act (in presence of A)               18 months
Count 14     Indecent act (with C)  18 months
Count 15     Producing child (A) pornography        18 months
Count 16     Indecent act (in presence of D, A

and C)  18 months           

Count 17     Possessing child pornography               3 years, of which 2 years cumulative.

That resulted in a total effective sentence of 8 years’ imprisonment.  His Honour fixed a non-parole period of 6 years and made a declaration as to pre-sentence detention of 13 days.  He also made by consent a forensic procedure order, an order for confiscation and disposal and an order for forfeiture. 

1. In his sentencing remarks his Honour stated that the appellant became, following his conviction (and, strictly, his being sentenced to imprisonment) upon count 2, a serious sexual offender as defined by the Sentencing Act 1991, but that he, the judge, did not need to call in aid the somewhat draconian provisions of the legislation to effect the purpose, made the principal purpose by the legislation, of protecting the community. That last statement is a reference to s.6D, and especially paragraph (b) thereof, but the fact that his Honour did not consider it necessary to invoke the provisions of paragraph (b) did not exonerate him from causing, pursuant to s.6F(1), to be entered in the records of the County Court the fact that the appellant had been sentenced for relevant offences as a serious offender. For s.6F(1) is quite factual, applying as it does when a court sentences a serious offender for a relevant offence, and moreover, even if it was proper to disregard s.6D, s.6E operated to require every term of imprisonment for a relevant offence to be served cumulatively upon other sentences unless otherwise directed by his Honour. His Honour did not expressly direct otherwise, as, despite the awkwardness produced, several decisions of this Court show should be done, but the proper interpretation of the express provisions for cumulation contained in his order and of his statement of the total effective sentence is that he did impliedly direct otherwise.  Now, it is to be observed that the substantive operative provisions, ss.6D and 6E, as well as the ancillary s.6F(1), apply only where a serious offender is sentenced “for a relevant offence”.  For present purposes the effect of the definitional provisions in the light of the facts of the case is that a “relevant offence” is one to which clause 1 of Schedule 1 applied.  His Honour had been told by the prosecutor, correctly in my opinion,[4] that the indecent act offences, but not the child prostitution or child pornography offences, were relevant offences.  The upshot of these discursive remarks is that his Honour should have caused an entry to be made pursuant to s.6F(1) in respect of the ten indecent act offences after that the subject of count 2.

   [4]The child prostitution and child pornography offences clearly were not in the Schedule.  Whether they should be added to the Schedule is a matter Parliament might consider.  Compare their inclusion in Schedule 2 of the Sexual Offenders Registration Act 2004.  Item (vii) of clause 1(a) reads:  “section 47(1) (indecent act with child under the age of 16)”.  As will be observed, the parenthesis in that item does not include words such as “or in the presence of”.  In my opinion, however, that does not mean that offences such as that the subject of count 4 were not “sexual offences” and thus “relevant offences”.  This is because, on their face, the words in parenthesis, unlike the non-parenthetic words in, for instance, Items (ii) and (xvii), are not words of definition or limitation, but auxiliary words of explanation, being taken from the summary of the offence in the heading to the section.  This is confirmed by the opening words of sub-clause (a), which speaks of “an offence against ... any of the following sections of the Crimes Act 1958”. In other words, the sub-clause is concerned with whatever a section proscribes or punishes. In any event, s.47(1) creates only one offence: R. v. Coffey (2003) 6 V.R. 543.

1. On 3 October 2003 the appellant gave notice of application for leave to appeal against sentence. On 4 June 2004 he was granted leave to appeal by a single Judge of Appeal pursuant to s.582 of the Crimes Act.  On 17 June 2004 the Registrar granted him leave to add three further grounds of appeal by way of amendment and this Court during the hearing gave leave to amend one of the added grounds in a minor respect.  The grounds in their ultimate form asserted that: 

1.In all the circumstances the head sentence imposed and the non-parole period fixed are manifestly excessive.

2.The sentences imposed on counts 7, 8 and 17 were manifestly excessive.

3.The learned Judge erred in imposing sentences on individual counts which were disproportionate and inconsistent with each other. 

4.The learned Judge erred in the orders for cumulation he made in respect of counts 7, 10 and 17. 

1. Before considering these grounds it is necessary to say something about the facts of the offending and to trace the reasoning in his Honour’s sentencing remarks.  In them the judge set the facts out in considerable detail, quoting from time to time from victims’ police statements, which are included in the Appeal Book, and it has not been suggested that he made any material factual error in what he stated.  Further, there is attached to the presentment a schedule in which each offence is described in some detail with references to the supporting evidentiary material.  Accordingly, I am spared from descending far into the sordid details.  They may be found in the sentencing remarks and the schedule.    

1. The table in paragraph [3] indicates the victim or victims of each count other than count 17, but it should be pointed out that, in the case of counts 4 and 5, the appellant’s indecent act was committed with a third person, namely B.  The victims A and B are sisters.  B was at all material times 16 years old.  A, C and D attended an outer suburban school.  A was at all times material to the offences against her either 14 or 15 years old.  C and D were at all material times 14.  All the offences were alleged to have occurred between 1 July 2001 and 22 September 2002.  A said in her first police statement, made on 21 September 2002, that she had met the appellant on Yahoo Chat over a year earlier, though there is little material showing offending in the first two months or so of the period of offending alleged. 

1. The appellant commenced corresponding with A over the Internet when she was aged 14 years.  Ultimately she gave him her home address and he called with some cigarettes for her.  A relationship developed in which sexual favours were given in exchange for cash or cigarettes or both.  The sexual favours involved either her being present while the appellant masturbated himself or her masturbating him.  Also drawn into this relationship were A’s elder sister, B, and A’s school friend C.  Another school friend, D, was present on one occasion when the appellant masturbated himself in the presence also of A and C.  Additionally, the appellant took sexually explicit photographs of A and B in return for or satisfaction of cash or cigarettes.  The offending principally occurred in the appellant’s motor car after it had been driven to a remote or dark location, but sometimes occurred in a recreation park or the house of the victim and once at the appellant’s residence.  When interviewed by the police he estimated that the total amount he had paid or given to the girls was between $1,000 and $2,000.  His Honour accepted that A, once snared, and the other girls, once involved, were in return for payment willing participants in the appellant’s deviant behaviour, and it was, he said, not uncommon for them when short of money or seeking a favour (such as, I instance, being driven to where they wished to go) to volunteer their services.  Their police statements show that they were not physically forced by the appellant to participate.  On occasions the girls secured leave from school or the like through deception or personation of a relative practised by the appellant.

1. With the foregoing general introduction, I now summarise each count. 

Count 1.A was in the appellant’s car with him at night on an occasion in the second half of 2001.  He said to her that if she sat in the car while he masturbated he would give her $100 and that if she rubbed his leg while he was masturbating he would give her a carton of cigarettes.  These things occurred and he gave her $100 and a carton of cigarettes.

Count 2.        This is a representative count[5], extending over some 15 months, of indecent acts with A to cover the non-specified but generally admitted course of behaviour whereby she would masturbate him or touch his legs or be in his presence while he masturbated[6], generally in exchange for cigarettes and small amounts of money.

[5]The nature and effect of which is explained in R. v. SBL [1999] 1 V.R. 706.

[6]As already mentioned, s.47(1) creates one offence, so that, although the count speaks only of an indecent act “with” the victim, an indecent act in her presence is included.

Count 3.In about March or April 2002 A went with the appellant in the daytime to a secluded area of a park.  He spread out a rug taken from his car and sat on it.  He told her to take her top off.  She did so but could not remember whether or not she kept her brassiere on.  He began to masturbate himself and then requested that she continue.  She did so until he ejaculated after about ten minutes.  There was no direct payment for this because the appellant had given her money or cigarettes on a previous occasion. 

Count 4.        In about March or April 2002 A and B came to an arrangement with the appellant whereby he would pay $500 for ten nude photographs.  Initially they were to be of A, but she changed her mind and B agreed to be photographed.  The appellant collected both girls at about 9 p.m. from a fast food outlet and they drove to a park.  At a pavilion in it which had a light on, B undressed and, using his digital camera, the appellant took ten photographs of her nude in sexually provocative postures, including one displaying her genitalia.  A was present while the photographs were taken.  The appellant paid B $500 and drove the girls back to the collection point.  He gave B a compact disk with the photographs on it. 

Count 5.At some time between March and June 2002 at night the appellant drove A and B to a dirt road beyond their suburb, where he had B masturbate him in his car while A was in the back seat. 

Count 6.Described by his Honour as somewhat artificial, this count is of the same incident as in count 5, but with B, not A, as the victim.  (Mr. Hillman drew a mild analogy with a case of the same act causing two deaths.)  There was a carton of cigarettes in the car and A picked it up and divided its contents between B and herself.[7]

[7]This satisfied the requirement in the definition of “prostitution” in s.3(1) of the Prostitution Control Act  that the provision of sexual services to or for another person should be “in return for payment or reward”. 

Count 7.His Honour described this count also as artificial, for it was the contrived means of charging the appellant for his sexual conduct with a consenting girl of 16.  In July 2002 B and the appellant entered into an arrangement whereby she would receive $500 in exchange for oral sex performed on the appellant.  The appellant came to the sisters’ home and went into B’s bedroom with her.  There, in the presence, it seems, of another girl, after the appellant had achieved an erection B performed fellatio upon him until he ejaculated in her mouth.  A saw through the door her sister performing fellatio.  Of all the offences charged, this is the only one that involved sexual penetration.[8]  The $500 promised was paid by a spending spree for B and her boyfriend at a shopping mall funded by the use of the appellant’s credit card.  (The appellant spent additional money in purchasing underwear for A.)

[8]The girls’ statements refer to a requirement by the appellant that B give him oral sex on five occasions and at least suggest that she did so.  But count 7 is not a representative count and so that material is to be completely disregarded because it relates to uncharged acts.   

Count 8.On 23 June 2002 the appellant and A arranged that he would collect her after church about 8.45 p.m. from the same collection point as mentioned earlier and that she would masturbate him while she was naked in return for his old mobile phone, hers having been broken.  He duly collected her and drove her to a park.  She masturbated him until he ejaculated.  She thought he might have touched her on her breasts and the top of her legs.  After she dressed, he gave her the phone.  Then he gave her a vibrator as a birthday present. 

Count 9.C needed $250 to repay to a friend from whom she had stolen that sum.  It was the last day of term in June 2002 and A and C were in the city.  A telephoned the appellant and he came into the city.  By pre-arrangement he masturbated to ejaculation in his car in an off-street city car park in the presence of A and C.  They took off the clothes on their upper bodies down to their brassieres and from time to time showed their breasts while he was masturbating and C at least rubbed the appellant’s upper thigh area.  In return he paid $250 to C at the conclusion.

Count 10.This was a representative count[9], extending over three months, to cover the non-specified but generally admitted course of behaviour of the appellant with C, whereby she would masturbate him or touch his legs or be in his presence while he masturbated himself, generally in exchange for cigarettes and small amounts of money. 

Count 11.A conveyed to C on behalf of the appellant a message that she, C, had to do more to pay off the $250.  C got into the appellant’s car.  He asked her to sit naked with him in it to clear the debt.  She stripped.  He commenced masturbating and while doing so tickled her leg and touched her on the outside of the vagina gently for a minute or two.  Ultimately he ejaculated.  This is the only count in which the appellant touched a victim’s genitalia. 

Count 12.In July 2002, having driven a little distance from C’s home, the appellant took some photographs of A with his digital camera.  In about three photographs A was topless, although the appellant told the police that she was only wearing a g-string.  Against A’s will, the appellant showed the photographs to C and a male friend of C.  A received no payment for posing for these photographs. 

Count 13.The appellant came to A’s house while she was home alone sick.  He offered her some money if she lay on the couch in her underwear.  She did this.  He masturbated himself on another couch.  He gave her  $30 and left. 

Count 14.C arranged for the appellant to come to her house for the purpose of exchanging sexual favours for cigarettes.  She got into his parked car.  She took off her shirt.  He asked her to masturbate him.  She did this until he ejaculated.  He touched her on the breast during the course of the masturbation.  He gave her ten packets of cigarettes. 

Count 15.In early August 2002 the appellant collected A from school and drove her to his house.  In his bedroom she posed naked both in positions he told her to adopt and in one she adopted herself, and he photographed her with his digital camera.  In one or two photographs her genitals were displayed.  He paid her $200 for this.  He returned her to school during the lunch break.

Count 16.The appellant masturbated himself to ejaculation in his car in the presence of D, A and C.  He gave two $50 notes to D.  She gave one each to A and C. 

Count 17.On 22 September 2002 the police executed a search warrant at the appellant’s home.  Amongst the property seized were the photographs taken by the appellant of A and other images he had downloaded from child pornography sites and had transferred to compact or floppy disks.  When interviewed later the same day, he stated that he had had for about a month subscriptions to two such sites, but the file dates on the printed-out images are for around November 2001 and earlier.  Included in the pornography in this count are, as I understand it, the pornographic photographs of A that are the subject of counts 12 and 15, but not those of B the subject of count 4 as she was not under 16.

[9]See fn.5 above.

1. I turn to his Honour’s sentencing remarks.  After some general observations about the offending and specific descriptions of the offending the subject of each count, his Honour made his statement about the willing participation of the girls in the appellant’s deviant behaviour that I have summarised earlier.  Continuing, he said, correctly, that, whilst that was no excuse for the appellant’s behaviour, it was a factor to be taken into account in sentencing.  He then quoted from the police statements of two of the victims to the effect that they were not forced into any of their conduct with the appellant.

1. His Honour then referred to the report of Mr. Cummins, noting that he did not assess the appellant as a paedophile.  He quoted a passage in which Mr. Cummins expressed the opinion that the appellant’s offending behaviour was primarily situationally motivated and reflective of his minimal sexual experience, his statement that he would not expect the appellant to re-offend and his opinion that the appellant presented as being genuinely and rigorously remorseful.  His Honour said that he was unable to concur “with that opinion” (which counsel understood to mean only the opinion about re-offending and remorse[10]) notwithstanding that the four witnesses he enumerated all spoke of the appellant’s remorse and their confidence that he would not re-offend.  His Honour said he was of his view because Mr. Cummins’ opinion was based upon the appellant’s statement to him of what had occurred, “which [was] self-serving, less than frank, and indeed plainly inaccurate”, referring to his having informed Mr. Cummins that he did not initiate any of the offending behaviour.  His Honour described as “false and downright misleading” the appellant’s statement to Mr. Cummins that most of the pornographic images related to post-pubescent adolescent females.  His Honour then said that the overwhelming impression conveyed by the appellant in giving evidence was of a man who did not appreciate the gravity of his offending and saw little for which to be sorry.  He had maintained the truth of what he had told Mr. Cummins and had stated that he had never initiated any sexual contact with the girls save on one early occasion.  His Honour then quoted from the appellant’s evidence on that topic and on other topics, including statements that he took nude or partially nude photographs of them and supplied alcoholic liquor to them for altruistic, well-meaning, reasons.  In the light of all the evidence his Honour did not share the witnesses’ confidence that the appellant would not re-offend.

   [10]But the judge’s remarks during the plea (at T.51 and T.59) that, because he was misinformed, Mr. Cummins was “palpably wrong” in considering the appellant not a paedophile, seem to justify a wider reading.

1. His Honour accepted that for some two years the appellant had been associating with a widow who had two daughters aged 14 and 11 whom she had entrusted to the appellant from time to time without that trust being abused.  His Honour accepted that the appellant and the widow had become lovers and hoped to marry, but he was by no means persuaded that the relationship as described by her pointed to normal sexuality on the appellant’s part.  The judge accepted that the appellant’s behaviour alienated him from two of his brothers and each of his four sisters, leaving only one brother prepared to support him.  He accepted, too, that the appellant had a good work record and no criminal history prior to this offending, and that he had sought counselling in relation to his behaviour though the report of that counselling was of little help.  He took into account in the appellant’s favour his plea of guilty, which had saved his victims the prospect of publicly revealing their behaviour, but was unable to accept that the plea reflected significant remorse.  The case against him was in any event overwhelming. 

1. Finally, notwithstanding their behaviour, the victim impact statements (referring to difficulties with parents and others) filed by the girls could not be altogether discounted, his Honour stated, for it was not surprising that upon the matters coming to light they should suffer some adverse reaction from adults and others. 

1. Imprisonment of the appellant was inevitable, his Honour said, not only in consequence of his treatment of the girls, but also in consequence of his possession of the child pornography.  The argument that mere possession of such material of itself harmed nobody overlooked the method of its production, by which little children are made to behave in a manner that is utterly repugnant, degrading and at odds with what should be the innocence of childhood.  That behaviour was provoked because there was a market for images of that sort.  Anybody who entered that market as a customer perpetuated the wickedness that was its foundation and raison d’ être.  He did so at his peril.  His Honour regarded the appellant’s offending as being a serious instance of possession of child pornography.

1. The need to deter the appellant from re-offending was significant, as was the need to deter others from following his deplorable example.  Then, after referring to the appellant’s status as a serious sexual offender in the terms summarised at the commencement of paragraph [4] above, his Honour pronounced the sentence summarised earlier.   

Ground 3

1. It is now possible to consider the grounds of appeal.  It is convenient to take first ground 3.  Mr. Gillespie-Jones pointed out that the sentences on counts 2, 3, 6, 7, 8, 10 and 14[11] varied between 18 and 30 months and submitted that there was no apparent reason for this.  Further, counts 2 and 10 were representative counts of similar instances to count 8 and yet attracted terms of imprisonment six months shorter than that attracted by count 8.  Counsel then applied to these sentences the words of Buchanan, J.A. in R. v. Hickey[12], “The sentencing judge fixed sentences without ... taking into account and weighing appropriately the circumstances attending each of the different instances of the same crime.”  Buchanan, J.A. had gone on to point out that it may be appropriate to impose the same sentence in respect of each of a series of crimes where the only differences in circumstances attending them do not disclose different degrees of criminality.  He further stated[13] that it was a basic principle of sentencing law that a sentence should be proportional and appropriate to the gravity of the crime constituted by its objective circumstances.  The latter, which rendered the crimes more or less serious, should have been reflected in the individual sentences.  Counsel submitted that Hickey was similar and pointed out that the Court of Appeal had intervened there. 

   [11]The criteria for selection of these counts is not clear to me.  Other counts also would seem capable of selection, but it may be counsel decided that he had listed ample.  Counts 6 and 7 seem out of place in the list and it may be that in place of  one of them count 5 was intended. 

   [12](2001) 119 A.Crim.R. 68 at [20].

   [13]At [21].

1. Despite the attractiveness of this argument, Mr. Hillman for the respondent by his analysis of the sentences for the purposes of several of the grounds has persuaded me that the sentences criticised are not disproportionate or mutually inconsistent:  they can be justified by reference to the objective circumstances of the respective offences.  Hickey is distinguishable.  His Honour appears to have taken eighteen months as the standard term of imprisonment for indecent act offences.[14]  An increase to 24 months for the two representative counts is readily justifiable.  When the victim masturbated the appellant, as in count 3, the term was, justifiably in my opinion, increased to 24 months.  Count 5, for which the term imposed was 18 months, is not an exception because the victim was, not B, who did the masturbating, but A.   Count 14 appears to be an exception, but it may be that the judge was influenced by the fact that there were fewer offences against C than against A, the subject of count 3.  In any event, for one slight inconsistency, not carried into the total effective sentence, to bring down the sentence would be a triumph of technicality in sentencing, something that the High Court has decried.  Although count 11 was not relied on by counsel for the appellant, the term of 24 months for it is justified by the additional fact that the appellant touched the outside of C’s vagina for one to two minutes.  The last count for consideration is count 8.  The sentence on it is particularly relied on as being disproportionate.  Now, it was a case where the victim masturbated the appellant, so that a term of 24 months at any rate was justified as proportionate to the offending and consistent with other sentences.  But there is more to the offending the subject of this count.  First, it occurred as a result of a pre-arrangement made earlier in the day, as a result of which A knew exactly what was required of her.  Further, the appellant enticed A with the promise of a gift but required that she masturbate him before he would give her the mobile telephone, that is, in order to “earn” the mobile telephone that she needed.  Finally, A was completely naked when she performed the masturbation.  Thus, the offending was considered and premeditated, it involved psychological manipulation of the victim and, through the victim’s total nakedness, was very demeaning of her.  His Honour said, justifiably I think, that this offending was “demonstrative of [the appellant’s] peculiarities”.  I am not persuaded that in arriving at a term of a further six months more, namely, 30 months, his Honour produced inconsistency or a sentence that was disproportionate to the criminality comprehended by the count. 

   [14]Count 4 is not an exception as it involved a different form of activity.

Ground 4

1. It was pointed out for the appellant that the orders for cumulation of the sentences on not only count 10 but also counts 7 and 17 were unexplained and that the sentence on the representative count 2 was made partially cumulative, whilst that on the representative count 10 was made totally cumulative.  Reliance was placed on another statement of Buchanan, J.A. in Hickey[15], “the fact that a count is a representative count is not to be reflected by an unexplained process of cumulation”.  It was submitted that the offences the subject of counts 2 and 10 were punished by cumulation.[16]  It was submitted that the principles as to sentencing for multiple offences stated in R. v. Lomax[17] had not been followed. 

   [15]At [22].

   [16]Count 2 was not comprehended by the ground even after amendment.

   [17][1998] 1 V.R. 551.

1. For the respondent it was submitted that the orders for cumulation were appropriate.  The different complainants involved in counts 7, 8 and 10 justified the orders for cumulation in the case of counts 7 and 10.  In elaboration, the tacit basis of which was that all the counts manifested additional criminality and it was a question of the grounds for preferring one over others for cumulation, it was submitted that his Honour chose his cumulation orders for the following reasons.  Count 2, being the representative count relating to the victim A, had to have some cumulation because it was more serious than, for instance, count 4.  There was cumulation in respect of the sentence on count 7 in order to recognise the offences against B, count 7 being chosen because the offence the subject of it was the more serious by reason of the penetration and the greater payment.  Count 10 was cumulated because it related to the most serious offence against C, being representative.  His Honour used count 8 as the base sentence because it involved A, the victim in the majority of counts.  That did not detract from the cumulating of part of the sentence on count 2, for there were more counts relating to A than to any other victim.  Count 8 was in any case one of the most serious counts, for reasons already mentioned.  Count 17 was quite separate and so some cumulation was justified.  It concerned child pornography that was clearly of a high level so that (by implication) substantial cumulation was justified.  Indeed in counsel’s written outline it was submitted that, although his Honour had ordered only partial cumulation, full cumulation was warranted.  Orally counsel stated that he accepted that his Honour had cumulated a large portion of the sentence on count 17, which seemed to me to mean that counsel accepted that the amount of cumulation was close to the limit, while maintaining it was within the limit. 

1. I do not think that the observation of Buchanan, J.A. means that there can never be cumulation of a sentence upon a representative count unless it is explained.  The point is that the mere representative nature of the count does not automatically require cumulation of the sentence upon it.  By no means infrequently the judges make directions for cumulation or concurrency without explaining their basis.  Usually it is reasonably clear what the unexpressed explanation is.  If such a direction is inexplicable, it will, or at least may well, be erroneous.  Leaving aside count 17, it can be seen that the effect of his Honour’s directions is that in respect of A a period of 36 months, in respect of C a period of 24 months and in respect of B a period of 12 months entered into the total effective sentence.  In my opinion, having regard to the number and relative seriousness of the respective offences against those victims, the ratio or relationship between the periods is appropriate.  His Honour was entitled, I consider, to select the representative count 2 as appropriate for the further cumulation relating to C that he considered necessary as it related to one of the most serious offences against C.  For similar reasons he was entitled, in my opinion, to select count 10 as the vehicle for some cumulation in relation to C.  However, his Honour made the whole of the sentence upon that count cumulative without any explanation.  Total cumulation between different episodes is not, however, the normal rule at common law:  R. v. Fuller-Cust[18].  Section 6E of the Sentencing Act does make it the normal rule, but that proves too much, for it would justify all the sentences being cumulated, which would infringe the principle of totality.  Undoubtedly his Honour had a discretion, but I cannot see a basis for achieving all of the desired cumulation in respect of C of 24 months by means solely of count 10, even though the offence the subject of it was the most serious, or one of the most serious, offences against C.  This is particularly so as there is another offence, that the subject of count 11, which, by reason that it included touching C’s vagina on the outside, besides being serious, contained an additional element of criminality.  I do not believe that Mr. Hillman advanced a specific justification for total cumulation.  Although decisions of the High Court and of this Court make it clear that sentencing does not depend on mathematical exactitude and should not be unduly technical, decisions in those courts also establish that it is not sufficient simply that the final result (the total effective sentence) is appropriate, but that appropriate individual sentences must be passed for each count and appropriate directions for cumulation or concurrency made for each.  Strictly, therefore, as it seems to me, the direction for total cumulation of the sentence on count 10 was erroneous.[19]  I should be loath to hold that the whole sentencing discretion was re-opened by reason of that alone, for the same result could properly be achieved by cumulating 12 months of the sentence on each of counts 10 and 11.  As will appear, however, I consider that his Honour’s sentencing discretion miscarried in another respect. 

   [18](2002) 6 V.R. 496 at [49]-[50].

   [19]This is not, I consider, inconsistent with the comment about count 14 in para.[17] above.  The departure here, involving total cumulation, was more marked.

1. There remains the question of the cumulation of 24 months in respect of count 17.  Clearly the offence the subject of that count was separate and serious and justified, if it did not require, a fair measure of cumulation.  If the sentence of 36 months on that count is within range and not otherwise erroneous, then it seems to me that to direct cumulation of two-thirds of that sentence was within his Honour’s discretion, having regard to the additional and serious criminality disclosed.[20]

   [20]Ordinarily one might have expected his Honour to have cumulated upon the highest sentence he imposed, that is, the sentence upon count 17, but, had he done so, the relativity between the cumulations of sentences in respect of the three victims would have been thrown out unless sensitive adjustments were made.

Grounds 1 and 2 (except as to count 17)

1. These grounds may be taken together.  Although from their terms it might be thought that ground 1 challenged the directions for cumulation resulting in the total effective sentence and the non-parole period whilst ground 2 challenged certain individual sentences, under ground 1 it was also asserted that the several individual sentences were each manifestly excessive. 

1. In support of the more general ground 1 the appellant relied on the various matters in mitigation accepted by the judge.  Acknowledging that the crimes were serious, nonetheless it was submitted for him that a proper synthesis of relevant factors, both aggravating and mitigating, led to the conclusion that all elements of the sentence were manifestly excessive:  whilst sentences of imprisonment were called for, there were powerful mitigating circumstances that should have led in the proper exercise of the sentencing discretion to an aggregate sentence of less than eight years with a non-parole period of six.  Thus, the appellant substantially, though not completely, confessed to police, pleaded guilty at an early time, pleaded guilty to offences over which he had not been questioned (counts 3, 5, 6 and 8) and about which, it was said though I do not agree, the sufficiency of proof was arguable (count 4).  On any view, it was submitted, in the majority of the crimes the complainants were more than willing participants and very many of the crimes were at their instigation.[21]  The matters did not come to the attention of the police by any complaint made by a victim but by an anonymous “tip-off” arising from the victims possessing inappropriate amounts of money and cigarettes.  The victim impact statements “[rang] somewhat false given their level of co-operation” to use his Honour’s words during the plea (though he did when sentencing refer to another aspect of the victim impact statements, as mentioned earlier).  The appellant had never before served a custodial sentence and would be required to serve his sentence in protection.  He had no relevant prior conviction.  He had sought help for his problem.  He had been a good friend to several persons.  As to the offending itself it was said that there was no penetrative offence, but the facts of count 7 show that strictly to be incorrect, though the victim was not under 16 years.  The photographs the subject of counts 12 and 15 were necessarily admitted to be pornographic but it was submitted that, unlike the material involved in count 17, they were not depraved.  A further submission was made that, although some modest cumulation might have been appropriate, proper application of the principle of totality ought to have resulted in a sentence of less than eight years.  The appellant had, it was said, effectively been given a rape sentence. 

   [21]Compare R. v. Nguyen (2001) 124 A.Crim.R. 477.

1. I turn now to the challenge, in ground 2, to specific individual sentences, but I leave aside for later consideration the sentence on count 17.  As to count 7, counsel, relying on a concession by the prosecutor to the sentencing judge, pointed out that the approach was initiated by the girls.  Moreover, notwithstanding his Honour’s reference to “five or six times” this was not a representative count.  It was submitted that 18 months’ imprisonment was too severe and that a comparison with the circumstances and sentences in Hickey and R. v. Lelah[22] supported that proposition.  As to count 8 it was submitted that 30 months’ imprisonment was too severe. 

   [22][2002] VSCA 96.

1. Under ground 2 counsel for the respondent referred, in respect of count 8, to his argument, set out and largely accepted in paragraph [17], on ground 3.  In respect of count 7, seemingly conscious that the sentence was 12 months longer than for the same offence in count 6, he submitted that his Honour was entitled to regard count 7 as more serious by reason of the sexual penetration and the higher monetary reward to the victim, being indeed the highest amount revealed in all the evidence.  Under ground 1 he accepted that the sentences might be towards the top end of the range but submitted that they were, nevertheless, open to his Honour having regard to the circumstances of repetition for over a year and of the victims being children of 14 or 15 except for the child prostitution offences, where the victim was 16. 

1. It is to be remembered that sentencing is a discretionary exercise, so that there is no single correct sentence.  Rather, there is a range of sentences open to a sentencer in the exercise of a sound discretionary judgment.  The question when it is alleged on appeal that a sentence is manifestly excessive (or manifestly inadequate) is, not whether the appeal court would have imposed a lesser (or more severe), but whether the sentence is outside the range mentioned.  The excessiveness (or inadequacy) must be manifest. 

1. Leaving aside count 17 I am of opinion that, on the facts of the several offences and the personal factors relied on and having regard to the maximum penalties and the sentencing purposes of the protection of the community (made by s.6E of the Sentencing Act the principal purpose for the indecent act offences after the first two), general and specific deterrence, the need to denounce the conduct of the appellant and the need to impose just punishment, none of the individual sentences is outside the range of sentences open to his Honour.  Nor, having regard to those factors and to the total period of offending and the number of offences, is the total effective sentence (or, strictly, the directions for cumulation[23]) or the non-parole period outside the range mentioned.  With respect to the individual sentences on counts 7 and 8 I have borne in mind the general arguments under ground 1 as well as the specific ones under ground 2.  I accept the respondent’s submissions.  For completeness I comment on a few of the appellant’s particular arguments.  I do not consider that Hickey or Lelah requires a conclusion favourable to the appellant.  The answer to the submission that the appellant received a rape sentence is that it disregards the period of offending and the number of offences as well as their seriousness.  As to the argument that the victims were willing participants and even, sometimes, the initiators, the legislation is designed to protect children.  On a small point, the fact that the appellant will have to serve his sentence in protection, whilst of some weight, is entirely due to his own offending.  Finally, I would add that his Honour was, in my view, entitled to express the views which he did about the appellant’s statements to Mr. Cummins and in evidence, and to decline to accept Mr. Cummins’ opinion that the appellant was unlikely to re-offend and was remorseful.

   [23]For convenience, following his Honour, I speak of directions for cumulation, though, strictly, in respect of relevant offences directions should have been for concurrency. 

Ground 2 – count 17

1. This was the count on which the heaviest sentence was imposed, namely 36 months’ imprisonment, 24 months of which was cumulative.  The term of imprisonment represented 60 per cent of the maximum penalty available.  It was said for the appellant that the actus reus of the crime of knowingly possessing child pornography was essentially pushing an “enter” button on a keyboard.  I do not accept that submission.  Pushing a button, once or twice, is momentary.  Possession is durative and, although possession on one day only was charged, the date being immaterial one can have regard in sentencing (as was done in R. v. Curtain[24]) to the length of time of possession, which here would seem to be about a month, on the appellant’s version, though about a year longer to judge by the file dates on the printed version of images.  It was then said that, whilst the appellant was not to be sentenced for producing the pornography, a more serious charge (carrying 10 years), yet the judge had taken into account the method of production in determining the sentence for possession.  The first part of that submission is correct, but the second is only partly so.  His Honour referred to the production by others in order to show that, if there were no direct victims of possession of Internet child pornography, at one remove there were victims, being the children depicted, so that it was a more serious crime than an entirely victimless one.[25]  He also made the associated and entirely unexceptionable[26] point that without purchasers (possessors) of child pornography there would be no or few producers of it, just as it is often said that without receivers there would be few thieves.  His Honour did not sentence the appellant for producing or, on the other hand, for downloading and transferring the pornography.  It was then said that it may be that the appellant was unaware of the specific images that were to be sent to him at the time of purchase.  But this is mere speculation, as are some of the other matters raised in the course of argument.  It was open to the appellant to give evidence explaining the procedure by which he purchased and his knowledge of what he was about to purchase.  I am by no means sure, however, that that would have been material, for the essence of the charge, to which he pleaded guilty, was that he knowingly possessed child pornography.

   [24][2001] VSCA 156 at [15]-[16].

   [25]Compare R. v. Jones [1999] WASCA 24 at [9] per Kennedy, J.

   [26]See R. v. Coffey at 552, discussed below.

1. It was then submitted for the appellant that the offences with the complainants were more important than the downloading of forbidden material from a website.  More appositely, it was said that the sentence imposed is far heavier than comparable sentences imposed in this and other jurisdictions for the crime and cases were cited which I shall mention shortly.  For the respondent, on the other hand, it was said that this was a serious example of the offence, as was shown by the judge’s description of the offending material.  The latter was disgusting and depraved.  It was not acquired by accident.  The gravamen of the offence was that the material was preserved on computer or compact disk. 

1. Unsurprisingly, the cases in which sentences for possession of child pornography have been considered by this court and decisions of intermediate appellate courts on such sentences do not furnish much assistance for the assessment of the seriousness of the present offending and the punishment available for it.  Unsuccessful appeals by offenders and successful Crown appeals do not establish the upper end of the range of sentences available, and in any event each case turns on its own facts.  But the cases do contain statements as to the object of the offence and indications of relevant factors and sentencing purposes.  

1. In R. v. Garner[27] the offence was committed at a time when it was a summary offence and the applicant (who pleaded guilty) was sentenced to 8 months’ imprisonment.  This was held not to be manifestly excessive having regard to the number of different children involved in the photographs and video cassettes and their explicit nature.  In that case the photographs had been taken by the applicant.  In R. v. Curtain the appellant pleaded guilty to possession of child pornography, the offence being alleged to have occurred on 25 November 2000, which was three days after the offence became an indictable one with a maximum penalty of 5 years’ imprisonment instead of a summary offence punishable by a maximum of 2 years’ imprisonment.  Police had found in his possession five compact discs containing approximately 50,000 images of which it was estimated 85% to 90% were of child pornography.  He was sentenced to 18 months’ imprisonment and a non-parole period of 9 months was fixed.  The court rejected a ground of appeal that the sentence was manifestly excessive.  Vincent, J.A., with whom the other members of the court agreed, went so far as to say, obiter, that the sentence imposed was within the range properly available to the sentencing judge prior to the amendment of the legislation.  His Honour stated that the fact that the appellant had been in possession for a lengthy time could well be regarded as an aggravating factor.  His Honour said that Parliament had clearly introduced the original provision in order to address one aspect of the sexual exploitation of children, namely, the distribution in the community of descriptions, pictures or images of violation.  It had been decided to deter those who might be so inclined from collecting, retaining or disseminating such material by rendering its mere possession a criminal offence punishable by imprisonment.  He noted that the Attorney-General in his Second Reading Speech introducing the amending legislation had stated that the increase in penalty and the categorisation of the offences indictable were intended to “send a clear message” of the serious view taken of the offence and to increase the deterrent effect of the law.  Winneke, P. in a short concurring judgment said that the sentence was well within the range available to the sentencing judge.  Director of Public Prosecutions v. DJS[28] was a Crown appeal against the inadequacy of sentences on a large number, but not all, of the counts of sexual offences on a presentment following a plea of guilty.  There was no appeal against the sentence of two years’ imprisonment imposed on a representative count for the possession of child pornography over a period of nearly four years.  The Court of Appeal set aside the sentences below and re-sentenced the respondent, in the case of possession of child pornography to the same sentence, namely, two years, but, naturally, there is no discussion of that term as there was no challenge to it.  In R. v. Coffey when the encrypted and unencrypted files found in the possession of the applicant (who pleaded guilty) were analysed he was found to have 1480 pornographic images.  The court through Callaway, J.A. [29] approved the sentencing judge’s statement that child pornography of that kind involved the corruption and violation of children and the possession of it created a market which encouraged the further exploitation of children.  Callaway, J.A. stated that the offence created by s.70 was intended, amongst other things, to deter prospective purchasers and collectors of child pornography in the hope that adverse economic consequences will ensue for those who produce it, a statement very close to the statement by the sentencing judge in the present case, which is thus shown to be unexceptionable.  The sentence of 6 months’ imprisonment was held to be well within the range.   In Director of Public Prosecutions v. GJL[30] a sentence of six months’ imprisonment for possession of “a considerable number” of pornographic images and video files found in the home of the respondent (who pleaded guilty) was increased to 18 months’ imprisonment on a Crown appeal.  My enquiries show that this material had been downloaded from the Internet rather than created by the respondent himself, as had been the case in counts of producing and transmitting child pornography, where the children depicted were the victims in yet other counts.  In Director of Public Prosecutions v. VH[31] the respondent had pleaded guilty to six counts of incest and one count of possession of child pornography (count 7).  In order to persuade one victim that incest was normal the respondent showed her various pornographic images depicting sexual relations with children, which he had downloaded from the Internet.  On searching his home police found a disc containing 39 pictures of child pornography.  The court allowed a Crown appeal against inadequacy of sentence and, in the case of count 7, re-sentenced the respondent to two years’ imprisonment.  Callaway, J.A. summarised[32] what he had said in Coffey and stated that the case then before the court was far worse because of the use to which the respondent put the images he had downloaded. 

   [27][2000] VSCA 85.

   [28][2003] VSCA 9.

   [29]At 552.

   [30](2004) 7 V.R. 366.

   [31][2004] VSCA 180.

   [32]At [9].

1. In Dodge v. The Queen[33] the Western Australian Court of Criminal Appeal reduced a sentence of 18 months for possession of child pornography, the maximum penalty for which was five years’ imprisonment, to 12 months’ imprisonment.  In that case the appellant, who pleaded guilty, had in his possession in prison written child pornography, there being no images of young children performing sexual acts, though there was explicit written detail of sexual activity with young children in the written material.  Wallwork, J., with whom the other judges agreed, in effect reviewed the earlier Western Australia appellant decisions.  He referred to the statement of Ipp, J. in R. v. Liddington[34] to the effect that the mere fact that persons are prepared to possess child pornography, albeit for their private purposes, necessarily creates a market for the corruption and exploitation of children; that children are abused, violated and degraded in order to create a market; and that people with pederastic inclinations could be stimulated to commit pederastic acts on viewing the material.  But the instant case was different, for no children had been corrupted in order to create the pornography possessed.  His Honour distinguished R. v. Coultas[35] where, amongst 94 counts of supplying, there was one count of possession of thousands of photographs and the offender received a sentence of 18 months’ imprisonment.  His Honour also distinguished R. v. Jones[36], where there were in excess of 80,000 different images[37].  It had there been held on a Crown appeal that a sentence of two years’ imprisonment was within range but that it ought not to have been suspended.  The offender was re-sentenced to 18 months’ imprisonment.  Kennedy, J. had stated[38] that, by its recent increase of the penalty for simple possession of child pornography, Parliament was inviting courts “vigorously to pursue the objectives of general deterrence and denunciation” in sentencing offenders.  He pointed out[39] that the offence cannot be characterised as a victimless crime:  for children, in the end, were the victims.  Wallwork, J., who gave the main judgment, distinguished Liddington, where a suspended sentence had been upheld on appeal, on the ground that there were only about 455 images in that case.  Wallwork, J., in Dodge, concluded that in all the circumstances, including that there was no involvement of live children and no financial gain to the applicant and, so far as such cases went, a relatively low number of items involved, and also taking into account the time he had spent in prison, his co-operation and pleas of guilty, a sentence of 12 months’ imprisonment should be substituted both for possession and supply of child pornography, to be served concurrently, without eligibility for parole. 

   [33](2002) 134 A.Crim.R. 435.

   [34](1997) 18 W.A.R. 394 at 403.

   [35][2002] WASCA 131.

   [36](1999) 108 A.Crim.R. 50.

   [37]And in excess of 162,000 images in total.

   [38]At [7].

   [39]At [9].

1. In light of that review of cases, I turn to consider the material seized here.  His Honour said that he had not seen all of the pornographic material found on a search of the appellant’s home, but had seen what counsel agreed was a representative and adequate portion, being “stills” and “movies”.  His Honour described what he had seen as follows:

“The great majority of images is of girls, with ages varying from very young, certainly pre-pubescent, to pubescent and post-pubescent.  Most are naked.  Some photographs are innocent enough in themselves and may perhaps have been taken of children at play innocently by some trespasser.  The majority are very different.

There are photographs of young girls set to pose in a sexually provocative way.  There are photographs of young girls endeavouring to behave erotically, as an adult might, and when I say young girls, I mean children.  Some photographs are monstrous.  There are little girls in lesbian poses.  There are photographs of little girls sucking and licking an erect adult penis.  Others portray actual penetration by a male adult penis of little girls’ vaginas.  Some portray little girls penetrating themselves with their fingers or other objects.  One video film portrays a large dog mounting what appears to be a young teenage girl.  She is naked, as are the children in the other postures which I have described.

Not all the photographs portray girl children.  There is a selection of photographs of naked young boys, some with erect penises and some not.  Some show posed homosexual activity.”

1. The summary of this offence in the table of offences attached to the outline of argument on behalf of the appellant states that approximately 978 picture files and 58 movie files[40] meeting the definition of child pornography were found in the possession of the appellant.  It was not explained and is not clear to me whether those picture files consisted of only one or more than one photograph.  Nor am I clear about the length of the movies.  It is apparent from the plea transcript that his Honour saw only the films on one CD Rom and that the three CD Roms and four floppy disks constituting Exhibit 9 contained all the child pornography seized other than the photographs of A.     

   [40]This number accords with the total of numbers of movie files on the respective disks as stated by the prosecutor below.

1. The court, of course, has his Honour’s summary description of what he saw, against which no suggestion of inaccuracy has been levelled.  Nevertheless, just as this court does in the case of other offences (such as assaults), the members of the Bench desired to see for themselves the material which the sentencing judge had seen in order to form an overall impression of the material and in particular its degree of depravity.  Now, R. 2.18(1) of Chapter VI of the Rules of Court provides that, subject to any order or direction of the trial judge as to the custody or disposal of exhibits, all exhibits tendered on behalf of the prosecution should be returned to the custody of the prosecution and shall be retained pending any appeal.[41]  As informal requests for the production of Exhibit 9 seemed unable to be met, the court had the Registrar give notice to the Solicitor for Public Prosecutions pursuant to R. 2.18(2) for production of the exhibit.  That paragraph provides:

“If the Registrar gives the prosecution a direction to produce an exhibit, the prosecutor shall produce the exhibit as directed.”[42]

Eight days later the Registrar received a lengthy letter from the Office of Public Prosecutions, the effect of which in brief was that, despite the various searches and enquiries detailed in the letter, “we are unable at present to produce Exhibit ‘9’ to the Court”.  This is very serious indeed.  The County Court records kept by the sentencing judge’s Associate, who, in the court’s experience, is an impeccable record keeper, show quite clearly that the exhibit was “Returned”.  Despite a suggestion of non-return made by one person enquired of by the Office, the court has no doubt that the exhibit was returned to the prosecution.  I have at least once before experienced the inability of the prosecution to produce an exhibit.  I recognise that the keeping of exhibits pending appeal or re-trial must present enormous logistical and storage problems.  But the proper administration of justice demands that they be kept and be available before production.  Here, the exhibit has assumed considerable importance in the court’s deliberations.  For myself, it might have been decisive in determining whether the term of three years was manifestly excessive.  Although the appellant has the burden of establishing that ground and although there is the sentencing judge’s summary of what he viewed, the inability of the prosecution to comply with the Registrar’s direction cannot be allowed to disadvantage the appellant. 

[41]This provision appears to be made pursuant to s.580(3) of the Crimes Act, which authorises the Rules to give power for the conditional release from the custody of the court of trial of exhibits and the like. 

[42]Emphasis added. Similarly s.574 of the Crimes Act provides, in part,  that the Court of Appeal may if it thinks necessary or expedient in the interests of justice order the production of an exhibit, the production of which appears to it necessary for the determination of the case. 

1. It may be said that considerations relevant to the gravity of the offending include the volume of pornographic material possessed, the degree of its depravity and the length of time for which it was possessed.  Here, each of those considerations works against the appellant.  It must also be remembered that included in the child pornography in count 17 are the two sets of photographs he took of A.  Further, Internet child pornography, whilst seemingly prevalent, is still a relatively recent phenomenon and it might be said that emphasis in sentencing on general deterrence and thus stern punishment might have the prospect, if not of nipping it in the bud, at least of cutting it back before it becomes full blown. 

1. Against those considerations are the maximum penalty fixed by Parliament and matters personal to the appellant.  It is not usual in this State to impose on a first offender a sentence of more than a half of the available maximum.[43]  Here a sentence of two-thirds of that maximum was imposed.   This was for an offender who had no relevant prior convictions and had pleaded guilty.  Whilst acknowledging the seriousness of this offending, on the material that I have been able to see, even when taken with his Honour’s description of other material, I have come to the conclusion that the sentence of three years was outside the range properly available to his Honour and so was manifestly excessive.  My conclusion might well have been otherwise had I been able to view Exhibit 9. 

   [43]None of the cases of this offence that I have reviewed exemplifies such a sentence, though Vincent, J.A.’s remark in Curtain at [17] seems to consider it would have been appropriate there had the maximum been only two years’ imprisonment.

Re-sentencing

1. As the other members of the court are also of the view that at least the

sentence on count 17 was manifestly excessive, the sentencing discretion falls to be exercised afresh.  I would do so in the light of all the facts and considerations I have discussed above.  I do not think that a different sentence should be passed on any count apart from count 17.  On that count I would sentence the applicant to be imprisoned for a term of 21 months.  As to cumulation, I would, for reasons already discussed, cumulate only one year of the two-year sentence on count 10 but would cumulate also one year of the two-year sentence on count 11.  Because count 17 evidences significant additional criminality, I would cumulate one year of the sentence I propose on that count.  I would cumulate the same amount of the sentences on counts 2 and 7 as his Honour did.  (I have spoken in terms of cumulation, but in respect of “relevant offences”, the formal order of the court will have to be expressed in terms of concurrency.) The foregoing results in a total effective sentence of 7 years’ imprisonment.  I would fix a non-parole period of 5 years and 3 months, keeping the same ratio to the head sentence as his Honour adopted.  I would direct that an entry be made in the records of the court that the appellant was sentenced as a serious offender in respect of all the indecent act counts from and including count 3 and would make an appropriate declaration as to pre-sentence detention. 

EAMES, J.A.:

1. I have had the benefit of reading the judgment of Batt, J.A. in draft  and agree generally with his Honour’s analysis and conclusions with respect to this appeal, save to the extent discussed below.

1. As his Honour has observed when analysing the facts which constituted counts 6 and 7, offences relating to child prostitution, the learned sentencing judge considered that those counts constituted an artificial means to punish the appellant for his conduct with B, who was above the age of 16 years when  the conduct took place.  The Prostitution Control Act 1994 defined “child”, by s.3(1), as a person under the age of 18 years. The pleas of guilty acknowledged that the offences under that

Act had, indeed, been committed, but in my opinion his Honour’s sentences on those counts ought to have reflected that the nature of the “child prostitution” in these cases was of a lesser degree of seriousness than might more commonly be envisaged by that description.  That approach was reflected by the sentence on count 6, which was suitably moderate, but in my opinion, was not similarly reflected on count 7, by virtue of the cumulation order made by his Honour.  The order of 12 months cumulation on count 7 was  manifestly excessive, in my opinion.

1. I agree with Batt, J.A., for the reasons he has stated, that the sentence on count 17 was also manifestly excessive.  My conclusion as to counts 7 and 17 would require  that the appellant be re-sentenced.  I agree with the re-sentencing proposed by Batt, J.A. as to all counts and as to all orders which he proposes to produce, effectively, cumulation on counts 2, 10, 11  and 17.   On count 7, however, while I would retain the sentence of 18 months, I would impose a lesser period of cumulation than the 12 month’s imposed by the learned sentencing judge.

1. As the reasons of Gillard, A.J.A. disclose, I am in the minority in my view that in addition to the sentence on count 17 the sentence on count 7 should also be varied from that imposed below.  In those circumstances, there is no point in me stating what different sentence to that now proposed by their Honours I would myself have imposed.

GILLARD, A.J.A.

1. On 18 September 2003, the appellant, Richard Jongsma, pleaded guilty to 17 counts of various offences of a sexual nature.  On Count 17, which was possession of child pornography, he was sentenced to a period of three years’ imprisonment of which two years were cumulative.  He was sentenced to a total effective sentence of eight years’ imprisonment and the learned trial judge fixed a non‑parole period of six years. 

1. I have had the opportunity of reading the reasons for judgment of Batt, J.A. 

I agree with his Honour’s reasons and the orders he proposes. 

1. I wish to add my views in relation to Count 17. 

1. Count 17 was a charge of knowingly possessing child pornography, contrary to s.70(1) of the Crimes Act 1958. The maximum penalty was five years. In light of the recent revelations concerning the extent of child pornography on a worldwide scale, it is only a matter of time before the maximum penalty will be increased. The learned trial judge sentenced the appellant to a period of three years’ imprisonment and ordered that two years be cumulative. Grounds 2 and 4 attack the sentence and cumulation on Count 17. It was submitted that the order for cumulation in respect to Count 17 was unexplained and that the order for cumulation was inappropriate. Ground 2 attacks the sentence as being manifestly excessive. I have nothing to add to Batt, J.A.’s reasons concerning ground 4 in so far as it concerns Count 17, however, I wish to say something about ground 2.

1. The sentencing process involves an exercise of a discretionary judgment.  The principles have been stated often and I refer to the leading authority of House v. The King[44].  As it is an exercise of discretion, there is room for difference of opinion as to what is the appropriate sentence.  It is not a question of an appeal judge saying that he or she would have imposed a different sentence.  Where the ground of appeal is manifest excessiveness, the alleged error in the sentencing process is not identified but it is argued the result bespeaks error on the part of the sentencing judge.  I discussed the principles in R v. David Matthew Langdon[45].  It is unnecessary to repeat them.  However, a heavy burden rests upon an appellant to persuade the Court that the result is so unreasonable that the Court may conclude an error was made. 

   [44](1936) 55 C.L.R. 499 at p.504-5.

   [45][2004] VSCA 205 at paras 60 – 76.

1. As stated by Batt, J.A., the sentence represented 60% of the maximum.  His Honour by a review of a number of cases has demonstrated that this puts the penalty above the range of sentences imposed in the past.  One has to guard against seeking to apply a standard range because each case will depend upon its own circumstances and more particularly the community’s attitude to the possession of obscene and depraved photographs and video films involving young children. 

1. The appellant has the burden of persuading the Court that the sentence was manifestly excessive.  That is an impossible task when the Court is denied the opportunity of viewing the video films which were seized.  It is only by considering the result in the context of all relevant circumstances, that a Court can determine whether or not an error occurred in the sentencing process.  I refer to what Batt, J.A. has said about the failure of the Crown to retain the exhibits.  All this Court has is a brief summary of some of the videos seen by the learned trial judge.  The quantity but more importantly the depravity displayed in the videos may justify three years’ sentence.  However, the Court is not in a position to make a proper evaluation.  This has come about because of the failure of the Crown to retain the exhibits and the appellant should not be disadvantaged by that failure.  Accordingly, I reluctantly join in Batt, J.A.’s conclusion with respect to Count 17.  The appellant must be re‑sentenced as proposed by his Honour.

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