R v Turvey

[2017] SASCFC 28

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v TURVEY

[2017] SASCFC 28

Judgment of The Court of Criminal Appeal

(The Honourable Justice Nicholson, The Honourable Justice Lovell and The Honourable Justice Hinton)

11 April 2017

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - EVIDENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - SENTENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - JUDGE ACTED ON WRONG PRINCIPLE

CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - DISMISSAL OF APPEAL WHERE NO SUBSTANTIAL MISCARRIAGE OF JUSTICE - APPLICATION OF PROVISO TO PARTICULAR CASES

Appeals against conviction and sentence.

The appellant was found guilty of unlawful sexual intercourse with a person under the age of 14, contrary to s 49(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA).

Sexual intercourse is defined in s 5 CLCA as including any activity consisting of or involving the penetration of a person’s vagina by any object or consisting of or involving the continuation of the penetration of a person’s vagina by any object.

The prosecution case was dependent upon inferences that could be drawn from seven images saved on the appellant’s mobile phone that were all taken within the one minute. The images depicted the hand of the appellant holding a vibrator protruding from the vagina of the complainant and being withdrawn. There was no evidence of who penetrated the complainant with the vibrator. The Judge concluded that the appellant’s holding of the vibrator whilst it protruded from the complainant’s vagina as depicted in the images constituted an activity involving the continuation of the initial act of penetration and therefore constituted sexual intercourse within the meaning of s 5 CLCA.

Whether the evidence was capable of proving beyond reasonable doubt that the appellant had undertaken an activity consisting of or involving the penetration of the complainant’s vagina with an object or the continuation of such activity and thus amounted to sexual intercourse within the meaning of s 5 CLCA.

The appellant was sentenced for the unlawful sexual intercourse conviction, and for two counts to which he pleaded guilty, namely, possessing child pornography, contrary to s 63A(1)(a) CLCA, and producing child pornography, contrary to s 63(a) CLCA. The appellant received a head sentence of four years imprisonment. A non-parole period of two years imprisonment was fixed.

The appellant appealed against his sentence on grounds including that the Judge erred in that the head sentences, the overall effective head sentence and the non-parole period were manifestly excessive having regard to the finding, not supported by the evidence, that the appellant’s culpability was of a higher order because he knew the victim was not older than 13 years of age.

Held per Hinton J (Nicholson and Lovell JJ agreeing), dismissing the appeals:

As to the appeal against conviction:

1. The Judge’s reasons do not betray a correct understanding of what amounts to an activity involving penetration and the continuation of an activity involving penetration within the meaning of the definition of sexual intercourse in s 5 CLCA.

2.       The appellant’s conviction on the evidence adduced was inevitable and no substantial miscarriage of justice has occurred.

As to the appeal against sentence:

3.       The sentence imposed was affected by error. It was not open to the Judge to make a finding that the appellant knew the victim was not older than 13.

4.       The error is not such that the appellant should be re-sentenced.

Criminal Law Consolidation Act 1935 (SA) s 5, s 49, s 63, s 63A, s 73, s 353; Criminal Law (Sentencing) Act 1988 (SA) s 10, referred to.
Weiss v The Queen (2005) 224 CLR 300; R v Murphy (1988) 52 SASR 186, applied.
Lindsay v The Queen (2015) 255 CLR 272; Evans v The Queen (2007) 235 CLR 521; Markarian v The Queen (2005) 228 CLR 357; AB v The Queen (1999) 198 CLR 111; Kentwell v The Queen (2014) 252 CLR 601; R v D (1997) 69 SASR 413; R v MJJ; R v CJN (2013) 117 SASR 81; R v Padberg (2010) 107 SASR 386; R v Arthur [2017] ACTSC 23; Paroline v US,  134 S Ct 1710 (2014); Kenworthy v The Queen (No 2) [2016] WASCA 207, considered.

R v TURVEY
[2017] SASCFC 28

Court of Criminal Appeal: Nicholson, Lovell and Hinton JJ

NICHOLSON J.

1. I agree that both appeals should be dismissed and for the reasons given by Hinton J.  There is nothing I wish to add.

   LOVELL J.

2. I agree that both appeals should be dismissed and for the reasons given by Hinton J.

   HINTON J.

   Introduction

3. On 3 June 2016, following a trial by judge alone, the appellant was found guilty of unlawful sexual intercourse with a person under the age of 14, contrary to s 49(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). Sexual intercourse is defined in s 5 CLCA as including any activity consisting of or involving the penetration of a person’s vagina by any object. The issue in this case was whether the evidence was capable of proving beyond reasonable doubt that the appellant had undertaken an activity consisting of or involving the penetration of the complainant’s vagina with an object. Resolution of that issue necessitated an understanding of what amounted to an activity consisting of or involving the penetration of a person’s vagina according to law.

4. The trial proceeded on agreed facts without any oral evidence being adduced.

5. The prosecution case was dependent upon inferences that could be drawn from seven images described by the trial Judge as photographs saved on the appellant’s mobile phone. Those images were all taken on 23 June 2014 within the minute of 2.37 pm and comprised a series. Each of the images featured the complainant, JF, who was 13 years old at the time. In the images the complainant can be seen sitting back, naked in the front passenger seat of the appellant’s car. In each of the first four images the complainant’s legs are open and a vibrator can be seen protruding from her vagina. The appellant’s left hand can be seen on the handle of the vibrator as it protrudes from the complainant’s vagina. From these images no movement of the vibrator can be discerned. The fifth image is similar to the first four save that, by comparison with the first four images, the vibrator has been partially withdrawn. In the final two images the vibrator can be seen in the left hand of the appellant having been withdrawn from the complainant who remains sitting naked in the vehicle.

6. There was no evidence adduced at trial as to who initially penetrated the complainant using the vibrator. The Judge recorded that a consideration of the images in sequence did not support an inference that the appellant, during the period of time featured in the images, manipulated the vibrator from the position shown in the first four images such as to penetrate JF further.[1] In fact, the final three images, considered in the light of the first four, supported an inference that the appellant withdrew the vibrator from JF.[2]

   [1]    R v Turvey [2016] SADC 55 at [68].

   [2]    R v Turvey [2016] SADC 55 at [68].

7. The Judge concluded that the appellant’s holding of the vibrator whilst it protruded from the complainant’s vagina constituted an activity involving the continuation of the initial act of penetration and therefore constituted sexual intercourse within the meaning of s 5 CLCA.[3] Accordingly he found the appellant guilty of the offence.

   [3]    R v Turvey [2016] SADC 55 at [68]-[70].

8. The appellant appeals against his conviction. He contends that the Judge erred in determining that the mere holding of the vibrator was an activity involving the continuation of the penetration of JF’s vagina and thus amounted to sexual intercourse within the meaning of s 5 CLCA.

9. I would dismiss the appeal against conviction. Whilst I consider that the Judge’s understanding of what amounted in law to an activity consisting of or involving the penetration of the complainant’s vagina was incorrect, in my view no substantial miscarriage of justice has occurred.

10. The appellant also appeals against the sentence he received. The Information upon which he was tried contained five counts. The unlawful sexual intercourse charge to which reference has already been made was count five. The appellant pleaded guilty to counts one and four in total satisfaction of counts one to four. Count one alleged the offence of possessing child pornography, contrary to s 63A(1)(a) CLCA, and count four, producing child pornography, contrary to s 63(a) CLCA.

11. For the offence of unlawful sexual intercourse the appellant was sentenced to imprisonment for 36 months. For the offence of possessing child pornography, the appellant was sentenced to nine months imprisonment reduced from 10 months on account of his plea of guilty. That sentence was ordered to be served concurrently with the sentence imposed for the offence of unlawful sexual intercourse. For the offence of producing child pornography, the appellant was sentence to a period of 16 months and six days imprisonment reduced from 18 months on account of his plea of guilty. Twelve months of this term was ordered to be served cumulative upon the sentence imposed for the offence of unlawful sexual intercourse. Accordingly, the appellant received a head sentence of four years imprisonment. A non-parole period of two years imprisonment was fixed. The Judge was of the opinion that good reason to suspend this sentence did not exist. 

12. The appellant was granted permission to appeal against his sentence on grounds including that the Judge erred in that the head sentences, the overall effective head sentence, and the non-parole period were manifestly excessive having regard to the finding, not supported by the evidence, that the appellant’s culpability was of a higher order because he knew the victim was not older than 13 years of age.

13. I consider the sentence was affected by error of the kind referred to immediately above. Doing so obviates the need to consider the remaining grounds of appeal against sentence. Upon re-sentencing the appellant I would impose a higher sentence. Bearing in mind the injunction contained in s 353(5) CLCA, in my view whist the sentence is affected by error it is not such that the appellant should be re-sentenced. I would dismiss the appeal against sentence.

14. My reasons follow.

    Appeal against conviction

    a.    The case at trial, the Judge’s reasons, the grounds of appeal and submissions made in support

15. The appellant was arrested on 31 August 2014 at his home address. His bedroom was searched and amongst other things, his Samsung mobile phone and a pink/orange coloured vibrator were seized. The mobile phone was later examined by police officers attached to the SAPOL Electronic Crime Section and found to contain the seven images to which reference has already been made. The analysis undertaken by the Electronic Crime Section also revealed that the seven images were, as has been stated, all captured within the minute 2.37 pm on 23 June 2014.

16. The agreed facts tendered at trial stated that all seven images were taken by the appellant, that it was his hand that featured in each, that the vibrator featured had penetrated JF in the first four images, that the vibrator featured was the vibrator seized by police from the appellant’s bedroom, and that the seven images, each of which featured JF, were taken whilst JF was sitting in the front passenger seat of the appellant’s vehicle.

17. Count five as contained in the Information pleaded the act of sexual intercourse as constituted by the insertion of a vibrator into JF’s vagina. Despite this the prosecution opened and conducted its case on the basis that, there being no evidence as to who first penetrated JF with the vibrator, the holding of the vibrator whilst it remained in JF’s vagina in itself amounted to sexual intercourse. On the prosecution case, the moment the appellant took hold of the vibrator as it protruded from JF, he committed the offence charged. In the alternative, the prosecution contended that from the seven images the Judge could discern movement of the vibrator further into JF’s vagina such as to amount to penetration.

18. The appellant’s case was that it could not be proved that he penetrated the vagina of JF with the vibrator nor that he continued the initial act of another. He submitted that merely placing a hand on the vibrator, or holding it, whilst it was protruding from the vagina of JF, without more, did not constitute an act of penetration for the purposes of s 5 CLCA. Further, simply holding the vibrator did not constitute the continuation of the initial act of penetration. On the evidence it was reasonably possible that the initial act of penetration, committed by whoever, had concluded and was not continued. Continuation of another’s act of penetration required, the appellant contended, evidence of further insertion into JF of the vibrator.

19. As will be seen the issue in dispute concerned the first physical element of the offence of unlawful sexual intercourse i.e. whether the inferences to be drawn from the seven images proved beyond reasonable doubt that the appellant had committed the act of sexual intercourse with JF within the meaning of s 5 CLCA.

20. The Judge concluded: [4]

    … the evidence at the core of the issues before me is the content of the photographs in Exhibit P2. The first four photographs disclose a vibrator inserted into the vagina of JF. The accused (sic) left hand is holding the vibrator. Although there is no evidence of any movement of the vibrator, any manipulation of the vibrator or any further insertion of the vibrator into the vagina of JF, it remains my view that at the relevant time the accused’s hand is holding the object which is penetrating the vagina of JF. The fifth photograph shows the vibrator being removed from the vagina whilst still held by the accused and the sixth and seventh photographs, likewise show the vibrator on the outside of the vagina of JF. At all times the accused (sic) left hand remains upon the vibrator. Even though there is no evidence of the action by the accused to use the vibrator to penetrate the vagina of JF, there is plainly evidence to disclose a continuation of the activity of penetration of the vagina of JF by the accused, irrespective of who may have inserted the vibrator into her vagina. The activity which is continued involves penetration and therefore constitutes sexual intercourse.

    [4]    R v Turvey [2016] SADC 55 at [68].

21. In this Court the appellant largely repeated the arguments put to the Judge. He contended that the seven images were not capable of supporting an inference that the appellant had penetrated JF with the vibrator or continued an act of penetration by penetrating JF further. He submitted that the holding of the vibrator that had penetrated JF as depicted in the images was an act consistent with innocence in that it was open to infer that the appellant had taken hold of the vibrator for the purposes of its withdrawal.

22. The respondent submitted that the Judge was correct. The definition of sexual intercourse contained in s 5 CLCA was not to be read down. Thus, holding the vibrator whilst it was penetrating the vagina of JF constituted sexual intercourse as it was an activity consisting of or involving penetration. The respondent further contended that the holding of the vibrator did not take place in a vacuum – the vibrator was held whilst the images were taken using the mobile phone. Thus, the appellant’s conduct constituted more than merely holding the vibrator and could not be characterised as an act of withdrawing the vibrator.

    23 In reply the appellant submitted that to construe s 5 CLCA in the manner contended by the respondent was to incorporate within its terms conduct that could not answer the description of sexual intercourse as ordinarily understood and was, in particular, far removed from the essential requirement of penetration. It would have the consequence that the withdrawal by a person of any object that had been inserted into the vagina or anus of another who was under 14 years of age for a benign purpose would constitute the offence of unlawful sexual intercourse.

    b.      Unlawful sexual intercourse

23. Section 49(1) CLCA creates the offence of unlawful sexual intercourse. That section provides:

    49—Unlawful sexual intercourse

    (1) A person who has sexual intercourse with any person under the age of 14 years shall be guilty of an offence and liable to be imprisoned for life.

24. This offence has two physical elements; the act of sexual intercourse with a person, and, the circumstance that the person with whom the accused has sexual intercourse is under 14 years of age. The mental element attaching to the first physical element is that of intention – the accused must be proven beyond reasonable doubt to have intended to have sexual intercourse with a person. No mental element attaches to the second physical element. [5] Thus, it is no defence to establish that it is reasonably possible that an accused did not know that the person with whom they had sexual intercourse was under 14 years of age or was mistaken as to that person’s age.

    [5] The legislative history of s 49(1) CLCA can be traced back through 39 & 40 Vic (SA) (Act No 38 of 1876) to 38 & 39 Vic c.94 (Imp), 24 & 25 Vic, c 100 (Imp) and 9 Geo 4, c 31 (Imp). In relation to s 51 of 24 & 25 Vic c 100 and its successors it has long been held that knowledge of the complainant’s age is not an element of the offence. See, R v Prince (1875) LR 2 CCR 154.

25. This case concerns the first of the two physical elements. There was no dispute that the appellant intended the conduct captured in the seven images, nor that the complainant was under 14 years of age. The question was did the conduct amount to sexual intercourse.

26. With respect to the first physical element complexity is introduced by the definition of what constitutes sexual intercourse for the purposes of s 49(1) CLCA. That definition is contained in s 5 CLCA. It provides:

    sexual intercourse includes any activity (whether of a heterosexual or homosexual nature) consisting of or involving—

    (a) penetration of a person's vagina, labia majora or anus by any part of the body of another person or by any object; or

    (b) fellatio; or

    (c) cunnilingus,

    and includes a continuation of such activity;

27. The definition is not only obviously inclusive, but expansive in that it extends to include conduct that at common law would not amount to carnal knowledge as sexual intercourse was once commonly known.[6] That said, sight should not be lost of the fact that, the definition being inclusive, at “the core of the expression ‘sexual intercourse’ there remains … its natural meaning”.[7]

    [6]    R v Randall (1991) 55 SASR 447 at 450 (Cox J, King CJ and Matheson J agreeing).

    [7]    R vRemynse (1987) 135 LSJS 180 at 181 (Wells AJ).

28. In R v Murphy Cox J observed:[8]

    … Now, rape is about a person “who has sexual intercourse” (s 48), and sexual intercourse in its natural connotation has a time dimension in it. It starts with penetration but it normally takes some time to complete, and it may be continued for a relatively long time. It is true that the latest definition of “sexual intercourse” in s 5 provides that sexual intercourse “includes any activity … consisting of or involving” penetration, but I do not think that this excludes the ordinary meaning of sexual intercourse or implies that an act of sexual intercourse, within the meaning of the definition, that is for the purpose of rape sufficiently constituted by penetration, necessarily ends when penetration is achieved. So much would seem to be implied, or confirmed, by the words “consisting of or involving” – the sexual intercourse may be constituted by the penetration alone or by (“involving”) the penetration and something more. If one reads s 48 in the light of the definition section, then, there is no reason to restrict the crime of rape to the instant of penetration. The act will ordinarily be a continuing one, in law as it is in fact, beginning with penetration and ending with withdrawal, whatever the span of time may be.

    [8] (1988) 52 SASR 186 at 200.

1. Whilst these comments were made in relation to s 48 and a prior version of s 5 CLCA, in my view, they apply equally to the current ss 5 and 49(1) CLCA. What is to be emphasised is that sexual intercourse, which includes any activity (whether of a heterosexual or homosexual nature) consisting of or involving the process of penetration of a person's vagina, labia majora or anus by any part of the body of another person or by any object, and includes a continuation of such activity, ends upon the process of withdrawal of the body part or object commencing.

2. Section 73(1) CLCA does not alter this.[9] Section 73(1) is an aid to proof.[10]

   [9]    R v Murphy (1988) 52 SASR 186 at 200-1 (Cox J, Perry J agreeing).

   [10] The wording of s 73(1) CLCA may be contrasted with that of its predecessor considered in R v Salmon [1969] SASR 76. See, R v Murphy (1988) 52 SASR 186.

3. The expansive definition of sexual intercourse contained in s 5 CLCA has the consequence that the first physical element of the offence may, at a minimum, consist of one of the eight acts identified, or the continuation of one of those acts, or of an activity involving one of the eight acts identified or the continuation of such activity. It also has the consequence that sexual gratification forms no part of the elements of the offence[11] and it matters not what the gender of those involved happens to be.[12]

   [11]   R v Abraham (1998) 70 SASR 575.

   [12]   R v Abraham (1998) 70 SASR 575 at 583 (Matheson J).

4. It may be that the definition of sexual intercourse contained in s 5 CLCA and, more particularly, some of the permutations of the first physical element it encapsulates, require the further refinement of the elements of the offence created by s 49(1) as stated above (i.e. does the physical element in some instances become two elements to which one must then consider what, if any, mental elements attach). We did not hear argument on this and it is not necessary to plot all permutations of the elements of the offence in order to dispose of this matter.

5. The chapeau to the definition of sexual intercourse makes plain that the first physical element may consist of any one of the activities identified in paragraphs (a), (b) and (c), or, involve any one of those activities. Here paragraphs (b) and (c) may be put to one side. It is important then to observe that the act or activity consisting of the penetration of a person’s vagina, labia majora or anus by any part of the body of another person or by any object, is an act or activity qualitatively different from one involving the penetration of a person’s vagina, labia majora or anus by any part of the body of another person or by any object. The subject of the former is the act of penetration as described. The subject of the latter is some other act or activity that involves penetration. No obvious reason arises not to give the word ‘involving’ its ordinary meaning, namely, to include as a necessary circumstance, condition or consequence.[13]

   [13]   Macquarie Dictionary (3^rd revised ed, 2001).

6. These observations need to be modified to account for the words appearing in the foot of the definition – and includes a continuation of such activity. So modified, the first physical element to which paragraph (a) refers may consist of:

   i.      an act or activity consisting of the penetration of a person’s vagina, labia majora or anus by any part of the body of another person or by any object, or,

   ii.the continuation of an act or activity consisting of the penetration of a person’s vagina, labia majora or anus by any part of the body of another person or by any object, or,

   iii.an activity involving the penetration of a person’s vagina, labia majora or anus by any part of the body of another person or by any object, or

   iv.the continuation of an activity involving the penetration of a person’s vagina, labia majora or anus by any part of the body of another person or by any object.

7. Where an accused engages in an activity consisting of the penetration of a person’s vagina, labia majora or anus, the accused performs the act of penetration. This is because the activity consists of penetration. If this is right, it follows that where an accused engages in an activity consisting of the continuation of penetration, he or she continues the penetration that he or she first perpetrated. This is because the activity continued is not a new activity but the activity previously commenced, namely, the activity consisting of penetration.

8. Where a person engages in an activity involving the penetration of a person’s vagina, labia majora or anus by any part of the body of another person or by any object, or the continuation of an activity involving the penetration of a person’s vagina, labia majora or anus by any part of the body of another person or by any object, it is not necessary, in my view, to prove that the accused penetrated the victim. It is enough that the victim was penetrated in the course of an activity that properly answers the description of an activity involving the penetration of a person’s vagina, labia majora or anus. I arrive at this conclusion because the alternate outcome – that the accused penetrated the complainant – would have the consequence that the words, “or involving”, as appear in the chapeau to the definition of sexual intercourse, and which are intended to capture conduct that does not consist of, but involves, penetration, would have no work to do. If it were necessary to prove that the accused penetrated the victim as part of an activity involving penetration, then every act involving penetration would, in effect, consist of penetration or the continuation of penetration. True it is conceivable that the conduct involving penetration could be particularised more broadly. But particulars and elements should not be confused.

9. Thus, the verbs ‘consisting’ and ‘involving’ are controlling - the accused’s act either consists of one of the activities identified in paragraphs (a), (b) and (c), or, is a continuation of one of those activities, or, is an activity that involves one of the activities identified in paragraphs (a), (b) and (c), or, is a continuation of such activity.

10. The current definition of sexual intercourse was inserted into the CLCA in 1985.[14] In his speech on the motion that the relevant Bill be read a second time the Minister said:[15]

    The first amendment extends the definition of sexual intercourse. The definition of sexual intercourse for the purposes of the crime of rape is confined to the penetration of the vagina, the anus and the mouth by the penis. This represents an extension of traditional notions of rape as the penetration of the vagina by the penis.

    With the law now extended well beyond the prohibition of non-consenting, but conventional, heterosexual intercourse there seems no sound reason to define narrowly the means by which a sexual assault can be carried out, particularly in view of the fact that less conventional assaults (for example, those involving penetration by bottles or screwdriver) can be most abhorrent. The new section covers acts which can be regarded as attacks on one’s body and integrity.

    [14]   Criminal Law Consolidation Act Amendment Act (No 98 of 1985) s 3.

    [15]   South Australia, Parliamentary Debates, House of Assembly, 23 October 1985 at 1493.

11. The purpose of the offence may be seen as protecting the bodily integrity of a person under the age of 14. That protection is paternalistic in that the consent of the child to the act or to participating in the activity matters not.[16] This reflects a determination that the maturity and development of the child is not such that he or she can appreciate the risk to their wellbeing that participation in such acts or activities poses. That risk does not evaporate just because the child may, for example, penetrate themselves in the course of participating with another in an activity that involved them penetrating themselves. The child’s bodily integrity is no less violated. If this is accepted the construction of s 49(1) CLCA advanced above is consistent with the mischief that the Parliament intended to address.

    [16]   Criminal Law Consolidation Act 1935 (SA) s 49(7).

    c.      Consideration

12. I turn to consider the arguments on appeal.

13. In the light of the analysis of the elements of the offence conducted above, the appellant’s argument that the offence could only be established if it was proven beyond reasonable doubt that the appellant penetrated JF or that he continued an act of penetration must be rejected. As indicated, the first of the physical elements may be satisfied by proof beyond reasonable doubt that the accused engaged in an activity involving the penetration of a person’s vagina by an object, or the continuation of an activity involving the penetration of a person’s vagina by an object without the accused performing the act of penetration.

14. The above analysis also reveals that merely holding an object that has penetrated and is protruding from the vagina, labia majora or anus of a person will not necessarily constitute an activity involving the penetration of the vagina, labia majora or anus of a person or the continuation of such activity. As the Judge observed, penetration is a noun. It describes a process. An activity will only involve penetration if that process has not concluded, or, if commenced, is continued. Thus the act of withdrawing an object from the vagina of a child that a third person inserted thereby penetrating the child, will not necessarily involve an activity that includes as a necessary circumstance, condition or consequence of such activity the process of penetrating the child or the continuation of that activity. Penetration occurred antecedent to the activity and is not continued as part of the activity.

15. The Judge concluded that the images did not disclose manipulation of the vibrator by the appellant (other than to withdraw it).[17] However, he accepted the prosecution submission that it could not be said that this was a case of the mere touching of the vibrator whilst it was in the vagina of JF.[18] He added that “so much is apparent from an ordinary viewing of all of the photographs which show the left hand of the accused”.[19] He did not elaborate on exactly what he meant by this nor return to it in his reasons.

    [17]   R v Turvey [2016] SADC 55 at [41].

    [18]   R v Turvey [2016] SADC 55 at [41].

    [19]   R v Turvey [2016] SADC 55 at [41].

16. In the following passage the Judge correctly articulates the question that he was required to determine.[20]

    I have earlier in these reasons described the content of the photographs of Exhibit P2. As I have described, the first four photographs of the exhibit disclose the positioning of the vibrator within the vagina of JF and the hand of the accused holding the handle of the vibrator. The fifth photograph discloses the vibrator being withdrawn from the vagina of JF or at least, that the vibrator is not inserted into the vagina of JF to the same degree as is disclosed in photographs 1, 2, 3 and 4. I am unable to make any further assessment of the photographic evidence in photographs 1, 2, 3 and 4 in Exhibit P2, than to say that the position of the vibrator within the vagina of JF appears to be static. The only different position demonstrated by a photograph is in the fifth photograph, where the vibrator appears to be in the process of being withdrawn from the vagina of JF, and the sixth photograph shows the vibrator as having been completely withdrawn from the vagina of JF. The question for my consideration is whether those photographs disclose “any activity” which involves penetration, or, the continuing of such activity. I consider that the answer to that question is plainly in the affirmative.

    [20]   R v Turvey [2016] SADC 55 at [49].

17. Earlier in his reasons the Judge had said:[21]

    As I have already described, photographs 6 and 7 depict the vibrator being held by the accused but on the outside of the vagina of JF. The importance of photograph 5 is that it shows a decreased level of penetration of the vibrator and it displays the withdrawal of the vibrator from the vagina of JF. This is consistent with photos 6 and 7.

    [21]   R v Turvey [2016] SADC 55 at [39].

18. Pausing here, the Judge’s analysis of the inferences that may be drawn from viewing the images raises the possibility of the taking hold of the vibrator as an act undertaken for the purposes of its withdrawal.  Bearing in mind the above analysis of the elements of the offence, that is a hypothesis consistent with innocence – penetration had ceased and the appellant merely took hold of the vibrator to withdraw it.  Here it is relevant to bear in mind that no finding is made as to the lapse of time between the capture of each image. Further, the Judge’s description of the content of each image does not allow one to conclude that any real time has passed between image one and image seven. All that is said is that they were captured within the one minute, but that allows for the minimum. In my view it was necessary for the Judge to consider whether the evidence was capable of satisfying him that the withdrawal hypothesis was not a reasonable possibility.

19. The Judge said:[22]

    The matters which fell from Cox J in Murphy gives assistance on the issue for my determination here. The act of sexual intercourse must begin with penetration and the statutory definition in s 5 CLCA means that sexual intercourse also includes the continuation of penetration. Therefore, if (taking the example of an object) the accused is not involved in the act of penetration using the object, but is involved with the continuation of the act of penetration, then that activity will satisfy the definition of sexual intercourse for s 5 and will, in turn mean that if such matters are proved to my satisfaction beyond reasonable doubt, a finding of guilt would follow. Therefore, it is necessary to give consideration to whether or not there has been an involvement of the accused with the continuation of the penetration.

    (emphasis added).

    [22]   R v Turvey [2016] SADC 55 at [51].

20. The language used here does not reflect absolute fealty to the language of s 49(1) CLCA and the definition of sexual intercourse. Nonetheless, the approach is consistent with the analysis of the elements of the offence undertaken above. In the italicised sentence above the activity that will satisfy the definition of sexual intercourse for the purposes of s 5 is an activity “involved with the continuation of the act of penetration”. That said, Cox J also made the point that the process of penetration has an end point.[23]

    [23]   R v Murphy (1988) 52 SASR 186 at 200.

21. Before the Judge counsel for the appellant submitted, as he did in this Court, that if it was reasonably possible that JF had penetrated herself but then stopped, leaving the vibrator protruding from her vagina, whereupon the appellant took hold of the vibrator, there was no continuation of the act of penetration. The act of penetration had ceased. To be continued, it was submitted, the vibrator had to be manipulated in some way or pushed further into JF.

22. The Judge rejected this submission. He said:[24]

    … In Murphy the Court of Criminal Appeal decided that the definition of sexual intercourse in s 5 CLCA should not be read down when regard is had to the forms of expression that Parliament has used in that definition. The continuation of an activity of penetration will therefore constitute sexual intercourse. Where the act of penetration is with an object such as a vibrator, then merely to hold the vibrator as a continuation of that activity of penetration using the vibrator will be sufficient to constitute sexual intercourse. It is an activity involving penetration of the vagina of JF. The word “penetration” in this definition is a noun and the active words of the definition are adverbial: “(any activity) consisting of or involving...” The word penetration in that sense of a noun will mean the fact of penetration in the instance of penetrating. The activity involving that (fact of) penetration by an object will include the continuation of that activity of penetration. The weakness in the argument of [counsel for the appellant] is that he contends for a meaning of “penetration” as a verb. On that basis he seeks to read down the meaning of the active words surrounding that word so as to give that word some operation as a verb. I am unable to accept that submission.

    [24]   R v Turvey [2016] SADC 55 at [59].

23. There was no evidence that the holding of the vibrator was the continuation of an act consisting of penetration. That is because there is no evidence that the appellant did the act of penetration that he subsequently continued. Whether the holding of the vibrator was the continuation of an activity involving the penetration of JF’s vagina depended upon finding that the process of penetration had not come to an end. In other words, the Judge needed to address the withdrawal hypothesis.

24. The Judge provided an additional reason for rejecting defence counsel’s submission. He said:[25]

    The second reason is that the submission of [counsel for the appellant] relies upon very fine distinctions that are not supported by the wording of the legislation. [Counsel for the appellant] contends that merely to hold a vibrator is not and cannot constitute penetration. The submission is made in the background that the accused accepts that photographs 1 to 4 show that a vibrator has penetrated the vagina of JF.

    The submission overlooks the definition in s 5 which includes any activity involving penetration and the continuation of such activity. The first to fourth photographs show the vibrator is held by the accused whilst there is penetration of the vagina of JF. The significance of this fifth photograph is that the hand of the accused is involved in the withdrawal of the vibrator from the vagina of JF.

    [25]   R v Turvey [2016] SADC 55 at [61]-[62].

25. In the last sentence of this passage the distinction drawn by the Judge between image five and images one to four is that in the latter penetration continues, whilst in the former withdrawal has commenced. The significance of the fifth image lies in the support it lends to the withdrawal hypothesis. That is, the fifth image permits one to infer that withdrawal has commenced and denies that images one to four, where the position of the vibrator is described as static, are evidence of the same. Images one to four are of circumstances preceding withdrawal. Or are they? Without some finding as to the period of time elapsing between the capture of each image such that it may be concluded beyond reasonable doubt that the appellant has held the vibrator as part of the continuation of an activity involving penetration, it is reasonably possible that images one to four were taken in the shortest succession and constituted the taking hold of the vibrator for the purpose of its withdrawal.

26. The process contemplated by the concept of penetration has an end point. Whether or not that end point was reached was a live issue in the trial. It necessitated that the Judge address the withdrawal hypothesis.

27. The Court was urged by the parties to view the seven images. That request was acceded to. I observed:

    Image one

28. JF is sitting in the front passenger seat. A child can be seen in the driver’s seat. The child appears to be holding the steering wheel looking in the direction of the camera. The hand brake can be seen between the seat occupied by JF and the seat in which the child is playing. 

29. JF’s left arm is across her stomach. Her right arm is in a position straight down from her shoulder and between her legs with the back of her right hand resting against her inner right thigh. Her legs are open and the vibrator can be seen protruding from her vagina. She has turned in her seat such that her lower left leg and foot, which cannot be seen, must be outside the open car door. JF is looking at the camera. Her expression may be described as one of some consternation.

1. The appellant’s left hand can be seen in the image holding the vibrator. I infer that he must be crouched in a position outside the vehicle. Further, JF’s position in the front passenger seat and her angle is such that the appellant must be positioned between her legs though at a distance such that only his left wrist and hand are featured in the image.

2. The camera angle is such that the camera must be being held by the appellant to the right of JF’s midline.

   Image two

3. By comparison to image one, JF’s right shoulder appears to have moved up and back in the seat. Her left arm is in the same position but her right arm has moved up to an angle where her right hand is almost on her right hip. JF’s facial expression has changed. She is looking down toward where the appellant must be positioned, namely between her legs as previously described. Her mouth is shaped as if she was sounding the letter “O”. That could suggest that the vibrator, which can still be seen held by the appellant and protruding from her vagina, had in some way been manipulated but such conclusion cannot be drawn beyond reasonable doubt.

4. No change in the degree of penetration by the vibrator can be discerned.

5. The child remains in the driver’s seat.

6. The camera angle remains the same as in the first image.

   Image three

7. JF’s left arm remains positioned across her stomach. Her right arm is now draped on the outer side of her right hip and out of sight.

8. JF is looking directly at the camera. Her expression is different to image two.  Her mouth no longer makes the shape as if she were sounding the letter “O”. Whatever the reason for the facial expression seen in image two, it appears to have come to an end by the time image three is taken.

9. Judging by the direction in which JF is looking and the angle of her right and left legs it would appear that the appellant remains crouched in a position in between her legs with the front passenger door of the car open. His left hand and wrist as per images one and two can be seen.

10. No change in the degree of penetration by the vibrator can be discerned.

11. The child remains in the driver’s seat.

12. The camera is now in a position directly in front of JF.

    Image four

13. JF is reaching with her left hand for an object held in her right hand to the right of her right leg in a position above the centre console of the vehicle. She is looking in the direction of her hands. Her left foot must still be outside the car door. The appellant’s hand remains on the vibrator. The beginning of the withdrawal of the vibrator is evident.

14. The camera angle is the same as in image three.

15. The child cannot be seen.

    Image five

16. The vibrator has now been withdrawn but remains held in a position near JF’s vagina. The appellant’s wrist is no longer visible.

17. JF can be seen holding a phone in her right hand to her right ear. It is possible that image four depicts her searching for her phone. Her left arm is across her stomach once more. She has a wide-eyed, sheepish look as if surprised by the timing of the phone call and her prevailing circumstances and yet the caller being unaware. She is looking directly at the camera. Only the left arm of the child can be seen.

18. The camera angle is the same as in image three.

    Image six

19. Very little difference between images five and six can be discerned. JF’s arms are in the same position. She is still on the phone. She has the same expression on her face as in image five. She is looking directly at the photographer. The vibrator remains visible, held in a position near JF’s vagina.

20. The camera angle is the same as in image three.

21. The child cannot be seen.

    Image seven

22. The vibrator has been fully removed and can still be seen held near JF’s vagina. JF still has the phone in her right hand to her right ear. The child can be seen reaching over for sunglasses that JF is holding in her left hand to her right side. She is looking at the sunglasses which she is holding up for the child.

23. There are differences between each of the images that allow one to conclude that there is a delay of some seconds at least between each being captured. The change in position of JF and her facial expression permits one to infer safely that there is a time delay between images one and two. Similarly the change in JF’s expression between images two and three and her different presentation in images three and four, permits one to infer that some period of time has passed between the capture of those images. The discernible difference in degree of penetration by the vibrator between images four and five alone permits one to infer that some time has elapsed between the capture of each of those images, however it is obvious from the images that in the period in between the mobile phone has rung, JF has located it and answered it. I infer that the mobile phone has rung as opposed to JF reaching for it and making a call, because of the expression on her face to be seen in image five. Whether the phone rang or she has made a call does not matter, the point is the passage of time that has elapsed between images four and five.

24. The period of time passing between the capture of the first and the seventh images cannot be discerned with any precision. At a minimum, however, some time passes before either the mobile phone rings, JF answers it and begins a conversation, or, searches for it and makes a call. Further, in image seven, JF can be seen offering sunglasses to the child but at no time do the preceding images capture her recovering the sunglasses from wherever they were in the vehicle, again suggesting some passing of time between the capture of images six and seven.

25. In all it cannot be said that the passage of time is insignificant. More to the point, the passage of time is such that the withdrawal hypothesis – that it is reasonably possible that the images merely capture the taking hold and instantaneous withdrawal by the appellant of the vibrator form JF’s vagina – can, in my view, be rejected as a reasonable possibility.

26. In the course of submissions on the hearing of the appeal, counsel for the appellant contended that one reason to read down s 5 CLCA and confine it to situations where the accused performed the act of penetration was because, practically speaking, this was a case of producing pornographic material that was catered for by other offences in the criminal calendar. Such submission cannot hold out against the text of s 5 CLCA. However, the characterisation of the activity captured in the seven images as the production of pornographic material was apt. The inference to be drawn from the fact of the appellant’s left hand featuring in each of the images, coupled with the fact that with his right hand he used his mobile phone to capture the images as ultimately depicted, and the fact that he saved and retained the images, is that at the time he held the vibrator as it protruded from JF’s vagina, he was concerned in the production of pornographic material. In the circumstances, that was an activity that involved the continuation of the penetration of JF. As the prosecution submitted, this was a case of more than just the touching of the vibrator. In my view the inferences supporting that conclusion are irresistible. This was not a case of merely taking hold of the vibrator for the purpose of withdrawing it. It may be inferred that the appellant took hold of the vibrator whilst it was penetrating the vagina of JF in order that he may photograph his hand holding the vibrator in situ and have a permanent record of the event and all it encompassed.

27. However, on the hearing of an appeal under s 353(1) CLCA it is not open to this Court to conclude that the appeal should be refused just because this Court is satisfied beyond reasonable doubt that the appellant was guilty.[26]

    [26]   Filippou v The Queen (2015) 256 CLR 47 at [48] (French CJ, Bell, Keane and Nettle JJ).

28. Section 353(1) CLCA provides:

    The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

29. The application of s 353(1) CLCA is two staged. First, does this Court think that the verdict should be set aside on any one of the three grounds stated. Second, whether notwithstanding any one of the three grounds being made out, does this Court nonetheless consider that no substantial miscarriage of justice has actually occurred.[27] For the reasons I have given I think that a miscarriage of justice has occurred. In my view, the Judge could not proceed to convict without addressing and rejecting the withdrawal hypothesis, particularly as his Honour characterised the activity involving the continuation of penetration as the taking hold of the vibrator. That is, the process of reasoning undertaken by the Judge was not one that, as a matter of law, could result in satisfaction of guilt beyond reasonable doubt absent rejection of the withdrawal hypothesis. The error may be characterised as one of law in that the Judge’s reasons do not betray a correct understanding of what amounts to an activity involving penetration and the continuation of an activity involving penetration within the meaning of the definition of sexual intercourse in s 5 CLCA.

    [27]   Perara-Cathcart v The Queen (2017) 91 ALJR 411 at [38] (Kiefel, Bell and Keane JJ), [87] (Gageler J), [133] (Nettle J), [155] (Gordon J).

30. I turn to the second stage and the application of the proviso.

31. In Weiss v The Queen, Gleeson CJ, Gummow, Kirby, Hayne, Callinan, and Heydon JJ described the task to be undertaken by this Court in the application of the proviso as follows:[28]

    That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the “natural limitations” that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself.

    (footnotes omitted).

    [28] (2005) 224 CLR 300 at [41].

32. The task is an objective one[29] to be undertaken on the whole of the record of the trial (including the verdict, paying proper regard to what were the issues that the jury were directed to determine in order to arrive at a conclusion of guilt),[30] to be performed bearing in mind the “natural limitations” that exist in any appellate court proceeding wholly or substantially on the record[31] and applying the criminal standard of proof.[32] In this latter regard in Lindsay v The Queen Nettle J said:[33]

    What was said in Weiss must now be understood in light of what has since been observed in Baini (albeit in the context of the application of s 276 of the Criminal Procedure Act 2009 (Vic)) and in Pollock v The Queen (in relation to the common form proviso). That is to say, where there has been a miscarriage of justice the consequence of an error in the conduct of a criminal trial, a court of criminal appeal cannot fail to be satisfied that there has been a substantial miscarriage of justice unless it determines that, in the absence of the error, it would not have been open to the jury to entertain a reasonable doubt as to guilt. “Nothing short of satisfaction beyond reasonable doubt will do”. A court of criminal appeal “can only be satisfied, on the record that conviction was inevitable”. And by “inevitable” what is meant is that, assuming the error had not been made, the result was bound not to have been any different for the jury if acting reasonably on the evidence properly before them and applying the correct onus and standard of proof. Unless it is so possible to conclude that the accused has not been deprived “of a chance fairly open to him of being acquitted of murder”, there is no room for the proviso.

    (footnotes omitted).

    [29]   Cooper v The Queen (2012) 87 ALJR 32 at [20] (French CJ, Hayne, Crennan and Kiefel JJ); Weiss v The Queen (2005) 224 CLR 300 at [39] (the Court).

    [30]   Weiss v The Queen (2005) 224 CLR 300 at [43] (the Court); Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92 at [28] (French CJ, Gummow, Hayne and Crennan JJ).

    [31]   Cesan v The Queen (2008) 236 CLR 358 at [128] (Hayne, Crennan and Kiefel JJ); Weiss v The Queen (2005) 224 CLR 300 at [39]-[41] (the Court).

    [32]   Cooper v The Queen (2012) 87 ALJR 32 at [20] (French CJ, Hayne, Crennan and Kiefel JJ); Weiss v The Queen (2005) 224 CLR 300 at [39] (the Court).

    [33] (2015) 255 CLR 272 at [86].

33. Importantly, satisfaction on the part of this Court of the appellant’s guilt beyond reasonable doubt is a necessary but not sufficient condition for the application of the proviso.[34] Any determination of whether no substantial miscarriage of justice has actually occurred is to be undertaken having regard to the nature of the irregularity that this Court must necessarily have first determined occurred in the course of stage one, considered in the context of the particular circumstances of the case and the particular issues at trial.[35] It must be borne in mind that some irregularities may amount to such a serious breach of the presuppositions of the trial as to deny the application of the proviso.[36] As Gummow and Hayne JJ observed in Evans v The Queen:[37]

    The graver the departure from the requirements of a fair trial, the harder it is for an appellate court to conclude that guilt is established beyond reasonable doubt. It is harder because the relevant premise for the debate about the proviso’s application is that the processes designed to allow a fair assessment of the issues have not been followed at trial.

    [34]   AK v Western Australia (2008) 232 CLR 438 at [53], [59] (Gummow and Hayne JJ); Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92 at [29] (French CJ, Gummow, Hayne and Crennan JJ); Cesan v The Queen (2008) 236 CLR 358 at [124] (Hayne, Crennan and Kiefel JJ); Reeves (2013) 88 ALJR 215 at [50] (French CJ, Crennan, Bell and Keane JJ); Gassy v The Queen (2008) 236 CLR 293 at [18] (Gummow and Hayne JJ); Weiss v The Queen (2005) 224 CLR 300 at [44]-[45] (the Court).

    [35]   See, for example, AK v Western Australia (2008) 232 CLR 438 at [42], [55] (Gummow and Hayne JJ); see also Reeves v The Queen (2013) 88 ALJR 215 at [51]-[58] (French CJ, Crennan, Bell and Keane JJ).

    [36]   Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92 at [22] (French CJ, Gummow, Hayne and Crennan JJ); Filippou v The Queen (2015) 256 CLR 47 at [15] (French CJ, Bell, Keane and Nettle JJ).

    [37] (2007) 235 CLR 521 at [42].

34. Lastly, if this Court is satisfied that no substantial miscarriage of justice has occurred, the appeal must be dismissed.[38]

    [38]   Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92 at [25] (French CJ, Gummow, Hayne and Crennan JJ); Lindsay v The Queen (2015) 255 CLR 272 at [43] (French CJ, Kiefel, Bell and Keane JJ).

35. As has been made plain, this was a case tried by a judge sitting alone, where no oral evidence was called by either prosecution or defence and where the evidence tendered was agreed but the capacity of that evidence to prove the elements of the offence disputed. The irregularity in this case may be described as a reasoning error indicative of an imperfect understanding of the elements of the offence. The irregularity cannot be described as one where the “processes designed to allow a fair assessment of the issues have not been followed”.[39]

    [39]   Evans v The Queen (2007) 235 CLR 521 at [42] (Gummow and Hayne JJ).

36. This Court is in no different position to the Judge. The natural limitations that can inhibit an appellate court in the application of the proviso where the impugned trial has involved the hearing of oral evidence and the assessment of the credibility and reliability of witnesses are not in play. The question is whether the agreed facts taken with the seven images captured by the appellant using his mobile phone prove the elements of the offence to the satisfaction of this Court beyond reasonable doubt. In my view they do.

37. There is no doubt that JF was under 14 years of age at the time the appellant captured the seven images.[40] There is no doubt that in images one - four, JF’s vagina had been penetrated with an object.[41] There is no doubt that the appellant was present throughout the period during which the seven images were captured and that he was responsible for their capture using his mobile phone held in his right hand. There is no doubt that it is the appellant’s left hand and wrist that can be seen in images one - four and six and seven, nor is there any dispute that in all seven images he has hold of the vibrator.[42]

    [40]   Exhibit P1.

    [41]   Exhibit P1.

    [42]   Exhibit P1.

38. For the reasons I have given above, the mere withdrawal hypothesis may be rejected as not amounting to a reasonable possibility consistent with innocence.

39. From the seven images contained in Exhibit P2 it may be inferred beyond reasonable doubt that the appellant has intentionally and voluntarily participated in an activity being the capture of the images of JF as described. That activity and its continuation involved the penetration of JF’s vagina with an object in that the penetration of JF was a necessary condition or circumstance of the activity. It was a necessary condition or circumstance in that, I infer and find beyond reasonable doubt, the intention of the appellant was to capture images of JF, penetrated by the vibrator as described in images one - four, featuring himself in that it may be inferred from the images that he was concerned to include in the images his hand holding the vibrator so as, it may also be inferred, to associate himself with the naked JF and the fact of her being penetrated by the vibrator.

40. I would apply the proviso. I am satisfied beyond reasonable doubt of the guilt of the appellant of the charge of unlawful sexual intercourse. In my view his conviction on the evidence adduced was inevitable. Accordingly, in my view, no substantial miscarriage of justice has occurred.

    d.      Conclusion

41. I would dismiss the appeal.

    Appeal against sentence

    a.      Applicable principles

42. Permission having been granted to the appellant to appeal against his sentence on all grounds, the powers of this Court engaged are those contained in s 353(4) CLCA. That section provides:

    …

    (4)Subject to subsection (5), on an appeal against sentence, the Full Court must—

    (a)     if it thinks that the sentence is affected by error such that the defendant should be re-sentenced—

    (i)quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or

    (ii)quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or

    (b)     in any other case—dismiss the appeal.

    (5)The Full Court must not increase the severity of a sentence on an appeal by the convicted person except to extend the non-parole period where the Court passes a shorter sentence.

1. As to whether a sentence is affected by error, in Markarian v The Queen Gleeson CJ, Gummow, Hayne and Callinan JJ said:[43]

   As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505, itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".

   [43] (2005) 228 CLR 357 at [25]. See also Dinsdale v The Queen (2000) 202 CLR 321 at [3] (Gleeson CJ and Hayne J), [21] (Gaudron and Gummow JJ), [58] (Kirby J).

2. In AB v The Queen Hayne J explained the significance of the difference between specific error and manifest excess or inadequacy to the task of this Court.[44] He said:[45]

   [44] (1999) 198 CLR 111.

   [45]   AB v The Queen (1999) 198 CLR 111 at [129]-[130].

   The task of the Courts of Criminal Appeal in this country in hearing appeals against sentences is a limited task and it is governed by well-established principles that have been repeatedly stated. In particular:

   "If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so."

   Such cases are, however, different from cases in which the complaint is that the sentence is manifestly excessive. There, as was said in House v The King:

   "It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

   The difference between cases of specific error and manifest excess is not merely a matter of convenient classification. It reflects a fundamental difference in what the appellate court does. In the former case, once an appellate court identifies an error, the sentence imposed below must be set aside and the appellate court is then required to exercise the sentencing discretion afresh. The offender must be re-sentenced unless, of course, in the separate and independent exercise of its discretion the appellate court concludes that no different sentence should be passed. By contrast, in the case of manifest excess, the error in reasoning of the sentencing judge is not discernible; all that can be seen is that the sentence imposed is too heavy and thus lies outside the permissible range of dispositions. Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed.

   (footnotes omitted).

3. It is tempting to construe s 353(4)(a) as requiring the Court to undertake a two staged inquiry; first, to determine whether an error has occurred before, second, analysing that error to determine whether it may be considered one “such that the defendant should be re-sentenced”. To so proceed would be erroneous. In Kentwell v The Queen French CJ, Hayne, Bell and Keane JJ explained:[46]

   … When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be “warranted in law”. A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not “warranted in law” unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence. This is not to say that all errors in the sentencing of offenders vitiate the exercise of the sentencer’s discretion. By way of example, s 44(1) of the Sentencing Act requires the court when sentencing an offender to imprisonment to first set the non-parole period and then set the balance of the term. Prior to 1 February 2003, a court was required to first set the term of the sentence and then specify the non-parole period. A court which sentences an offender to imprisonment after 1 February 2003 by first setting the term of the sentence commits legal error. Without more, the error does not affect the exercise of the sentencer’s discretion.

   After having identified specific error of the kind described in House, the Court of Criminal Appeal may conclude, taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing, that a lesser sentence is the appropriate sentence for the offender and the offence. This is a conclusion that that lesser sentence is warranted in law. The result of the Court of Criminal Appeal’s independent exercise of discretion may be the conclusion that the same sentence or a greater sentence is the appropriate sentence. In neither case is the Court required to re-sentence. Nor is the Court required to re-sentence in a case in which it concludes that a lesser sentence is appropriate for one or more offences, but that a greater sentence is appropriate for another or other offences, with the result that the aggregate sentence that it considers warranted in law exceeds the aggregate sentence that is the subject of appeal. The occasions calling for the Court of Criminal Appeal to grant leave, allow an offender’s appeal and substitute a more severe sentence are likely to be rare. Were the Court to grant leave in such a case, convention would require that it inform the appellant of its intended course so that he or she might abandon the appeal.

   (footnotes omitted).

   [46] (2014) 252 CLR 601 at [42]-[43].

4. Whilst these remarks were made in relation to s 6(3) of the Criminal Appeal Act 1912 (NSW) which is not on all fours with s 353(4) CLCA, in my view they are equally applicable to s 353(4). Thus, this Court first determines whether a sentence imposed is affected by error in the House v The King[47] sense, if it is, the Court does not analyse the error in order to determine whether it has influenced the outcome and the extent, rather, the sentencing discretion having miscarried, the Court proceeds to consider the exercise of the sentencing discretion afresh and, in the light thereof, whether an appellant should be re-sentenced.

   [47] (1936) 55 CLR 499.

   b.      The circumstances of the offending in this case

5. Before turning to the grounds of the appeal against sentence, it is necessary to set out the circumstances of the offending. In dealing with the appeal against conviction I have dealt with count five and the charge of unlawful sexual intercourse. In what follows I deal with counts one and four.

6. With respect to count one and the charge of possessing child pornography, contrary to s 63A(1)(a) CLCA, the Judge said:

   In relation to the possess child pornography charge, the images and videos the subject of this charge are described in the declaration of Detective Bradley John Maloney dated 7 April 2015. The images and videos were contained on a memory card and in a phone memory of a mobile phone Exhibit No. CRT2 located in your bedroom as well as the images and videos contained in the memory card and phone memory of a Samsung Smartphone Exhibit CRT65 located in the centre console of your motor vehicle. These have all been assessed by police according to the National Exploitation Material Category Standard. This assessment is accepted by you.

   In relation to the count of possess child pornography, there are 243 level 1 image files, 99 level 2 image files and 40 level 3 image files. There was one level 2 video file. These were found in Exhibit CRT2 on the memory card. In Exhibit CRT2 on the phone police identified 760 level 1 images, 152 level 2 images, 179 level 3 images and several level 4 images. The police also located one level 1 video, and two level 2 videos and four level 3 videos. On Exhibit CRT65 on the phone memory card the police located one level 2 video, two level 3 videos and one level 4 video. On Exhibit CRT65 the police identified two level 1 images and 21 level 3 images.

7. In relation to count four, producing child pornography, contrary to s 63(a) CLCA, the Judge said:

   In relation to the count of produce child pornography, I viewed the imaging video of the disk tendered to the court during submissions. That video was located in Exhibit CRT65 on the memory card. The allegation of the director, which is accepted by your guilty plea, is that you are responsible for the conduct depicted on that video, which includes the sex toy penetrating the complainant and you touching that sex toy after it had penetrated the vagina of the complainant. The single image contained in the folder is a close-up image of the acts admitted in the video which was taken by you on your mobile phone, Exhibit CRT2. The images which I have seen depict at least two instances of unlawful sexual intercourse but you are only to be sentenced for one of them.

8. The child featured in each of the images and videos was JF, thus all images and videos subject of all counts were of JF. Further, those images and videos were all captured on the one day.

9. The Judge recorded the background of the relationship between the appellant and JF leading up to the commission of all offences for which the appellant was to be sentenced. He said:

   The circumstances of the offending are that you met the complainant through a mutual acquaintance through Facebook. You became Facebook friends with the complainant and you conversed through Facebook. I am informed by your counsel that there were a number of things that led you to believe that the complainant was not underage. You communicated during the day and, when you inquired what the complainant did, she said that she did not go to school. She said that she did not live at home. She said that she was a frequent cannabis user, and smoked cigarettes and had a boyfriend.

   …

   Eventually the conversations on Facebook came around to you sending each other a picture and the complainant sent some photos of herself to you, some of which showed her naked. This occurred on only one occasion. This led you to making an arrangement to meet the complaint in person. Under that arrangement, the complainant agreed to allow you to photograph her naked. All of this occurred in a public place. The materials show a series of videos and photographs taken inside and outside of your vehicle.

   In the photographs the complainant is generally naked and in almost all photos the complainant is in sexually suggestive poses. In a number of photographs and videos the complainant is holding and using a pink vibrator that you provided to her. This is what I have described as the ‘sex toy’. These activities occur inside and outside the motor vehicle in a public place where you could have been seen by passers-by but you were apparently not seen. However, you took that risk.

   c.      The finding that the appellant knew the complainant was not older than 13 (ground 3(d))

10. The offences of possess and produce child pornography and of unlawful sexual intercourse with a person under 14 years of age are obviously offences intended to protect the innocence and vulnerability of children. The younger the child the more heinous the conduct of those who sexually interfere with or exploit such a child. And if a person engages in acts that sexually interfere with or exploit a child knowing how young the child is, as opposed to being reckless as to such fact, or negligent, the more heinous their conduct again. Accepting this, the age of JF was a factor relevant to the Judge’s assessment of the appellant’s blameworthiness as was the appellant’s knowledge or otherwise of the age of JF.

11. Doubtless in recognition of this it was submitted in mitigation that the appellant did not think JF was of an age that rendered her participation in his actions unlawful. Defence counsel submitted that to the appellant JF looked reasonably older than 13, though he did not form a view as to how old she actually was. The Judge said:

    Your counsel informs me that you thought she looked older than 13 years of age. Having seen the photographs that have been tendered, I am unable to accept that submission. The age of the complainant should have been abundantly obvious to you as it would have been to any objective observer …

12. The appellant contends that this observation amounts to a finding that he knew the victim was not older than 13 years of age. I agree. Implicit in the statement is the finding that the appellant’s powers of observation are no less than the objective observer’s, hence the justification for rejecting the professed belief is that the victim’s age would have been obvious to the objective observer. It is also implicit in the statement that from the images the Judge was able to determine that the victim did not look older than 13.

13. Subsequently the Judge returned to the issue of JF’s age in the course of stating his conclusions as to the gravity of the appellant’s conduct. He said:

    I am satisfied that the whole of this activity, including photographs and videos, was created for your own personal sexual gratification. I am also satisfied that this is extremely serious offending. The complainant was 13 years of age at the time of the offending. She is now 15 years of age. Although she now resides with her mother on a full-time basis, at the time of this offending she was under the guardianship of the Minister. She was an extremely vulnerable member of society and must also be protected from her own apparent lack of intelligence, real judgment, stability as well as her immature sexual inclinations. Your conduct was egregious in its opportunism.

14. Whilst the Judge does not expressly state that he had taken into account his finding that the appellant knew that JF was not older than 13 years of age, no reason arises for making such finding unless the Judge intended doing so. Further, the use of the descriptor ‘egregious’ must be taken to reflect all the circumstances of the appellant’s conduct including the finding that the appellant knew JF was not older than 13 years of age, particularly as that finding was highly relevant to assessing his blameworthiness.

15. The appellant contends that it was not open to the Judge on the evidence to conclude that JF was not older than 13 years of age and was so obviously not older than 13 years of age that the appellant must have known as much.

16. It must be borne in mind that a finding that the appellant knew JF was not older than 13 at the time of the commission of the offences subject of counts one and four is a finding of an aggravating factor. Consequently, it is a factor that must be established beyond reasonable doubt.[48]

    [48]   The Queen v Olbrich (1999) 199 CLR 270 at [24]-[27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ); Weininger v The Queen (2003) 212 CLR 629 at [20] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

17. The Judge provides no reasons for arriving at his conclusion that JF’s age would have been abundantly obvious to any objective observer. Nor does the Judge direct himself that he must be satisfied of the aggravating factor beyond reasonable doubt. The Judge’s conclusion can only have been the product of inferences drawn from his viewing of the images tendered at trial and subsequently in the course of sentencing submissions.

18. It is one thing to conclude that a stranger is of an apparent age based on inferences drawn from facts observed. It is quite another to be prescriptive as to the actual age of a stranger, bearing in mind the physical variability between human beings, particularly when the stranger is only seen in video footage or still images and the person venturing the conclusory opinion as to their age possesses no relevant expertise.

19. I viewed the images and videos tendered at trial and upon sentencing. JF’s physical development is such that it cannot be concluded beyond reasonable doubt that she was not older than 13 years of age. She is not pre-pubescent. The task is complicated by the fact that JF has shaved her pubic hair, is wearing make-up, has shaped eyebrows, braces and a lip piercing. Whilst she is no doubt young, her facial and physical presentation are such that, confined to a consideration of her appearance as portrayed in the images and videos alone, it is reasonably possible that she is older than 13. In my view it was not open to the Judge to make a finding to the contrary.

20. In my view ground 3(d) is made out.

    d.      The remaining grounds

21. The finding that the appellant knew the victim was not older than 13 was an erroneous finding of fact which, in my view, would have attracted significant weight in the determination by the Judge of the appropriate sentence to be imposed for each of the offences in relation to which the appellant was sentenced. Accordingly, the erroneous finding of fact has resulted in the sentencing discretion miscarrying in relation to each sentence imposed. It is unnecessary then to consider the balance of the grounds of appeal against sentence, the sentencing discretion having miscarried, it is for this Court to determine whether the appellant should be re-sentenced.

    e.      Sentencing afresh

    i.       The maximum penalties

22. The applicable maximum penalties are as follows:

    a.possess child pornography, contrary to s 63A(1)(a) CLCA: imprisonment for five years;

    b.produce child pornography, contrary to s 63(a) CLCA: imprisonment for 10 years;

    c.unlawful sexual intercourse, contrary to s 49(1) CLCA: imprisonment for life.

    ii.      The circumstances of the offending

23. The circumstances of the offending and the background has been set out above.[49] I do not repeat it.

    iii.     The gravity of the offending - the sexual exploitation of children

    [49]   At [3]-[6], [15]-[16], [106]-[109].

24. Article 25(2) of the Universal Declaration of Human Rights singles out motherhood and childhood as being entitled to special care and assistance.[50] In the preamble to the Declaration of the Rights of the Child it is stated, perhaps obviously, that the child “by reason of his physical and mental immaturity, needs special safeguards and care”.[51] Principle 2 in that same declaration states:

    The child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration.

    [50]   Universal Declaration on Human Rights, GA Res 217A (III), UN GAOR, 3^rd sess, 183^rd plen mtg, UN Doc A/810 (10 December 1948).

    [51]   Declaration of the Rights of the Child, GA Res 1386 (XIV), UN GAOR, 14^th sess, 841^st plen mtg, UN Doc A/RES/1386 (20 November 1959).

1. And Principle 9 includes:

   The child shall be protected against all forms of neglect, cruelty and exploitation. He shall not be the subject of traffic, in any form.

2. Consistent with this, in this State a primary policy of the criminal law is legislatively declared to be the protection of children from sexual exploitation by ensuring that paramount consideration is given to the need for general and personal deterrence.[52] The policy, like the Universal Declaration of Human Rights and the Declaration of the Rights of the Child, focuses upon children for the obvious reason that they are vulnerable and in need of protection. That, in turn, highlights one aspect of the criminality of the offender who sexually abuses a child – in targeting children he or she targets those who cannot resist, whose cognitive and social development is, generally speaking, not such that they know that they are taking part in something that is harmful to him or her, and, all too often, deeply so. The exploitation of innocence for the abuser’s own indulgence is a particularly abhorrent feature of child sexual abuse and one that the community demands the courts denounce strongly. Hence in R v D, in relation to the offence of persistent exploitation of a child, Doyle CJ said:[53]

   It is not necessary to repeat what the court has said so often in the past about such offences. I merely add this. They are offences that cause a feeling of outrage and revulsion in the community. The penalty must reflect that feeling. They involve a serious breach of trust. As this case makes clear, such offences cause serious harm to the victim in many cases. There is every likelihood that the effects of that harm will be prolonged, and perhaps lifelong. The courts must do what they can to protect children from such conduct. Deterrence is an important part of sentencing for an offence such as this. Although reasons for the offending vary, and sometimes the offenders are persons who were themselves sexually abused as children, it seems clear that such offenders are not usually persons who are unable to control their sexual instincts. While acknowledging that the punishment of offenders is only one factor that may limit the incidence of this offence, the courts must proceed on the basis that punishment has a part to play in deterring offenders.

   Offences such as the present one have an insidious effect upon the community, and that is also something to consider. They lead, and I suspect are already leading, to a loss of trust in the very persons upon whom we often rely for the nurture of children, for their education, and for guidance, leadership and instruction for children. As our society becomes more aware of the extent to which children are subjected to sexual abuse, this insidious effect is increasing.

   It appears that the sexual abuse of children by persons in a position of trust is quite widespread. It may not be occurring more often than it did in the past. It may well be that it is now being detected more often than it was. Be that as it may, the offences that are involved come before the courts with disturbing frequency. …

   [52]   Criminal Law (Sentencing) Act 1988 (SA) s 10(2)(c).

   [53] (1997) 69 SASR 413 at 423.

3. And in R v MJJ; R v CJN, Kourakis CJ said:[54]

   … There is no doubt that victims of sexual abuse and their families carry a substantial psychological and financial burden. There is also a great social cost to the community. Community anxiety about sexual offending curtails the freedom of children to explore their environment in a way which is a necessary part of their psycho-social development. It also generates increasing suspicion and sensitivity about completely innocent behaviours. The great personal and social harm caused by sexual offending against children demands a strongly deterrent sentencing response.

   [54] (2013) 117 SASR 81 at [84].

4. In my view, the observations of Doyle CJ and Kourakis CJ make plain that those who choose to sexually abuse children can expect sentences bordering on the severe. Further, the fact that an abuser has not previously been imprisoned, or is of prior good character, will, generally, carry little weight.

5. As Kourakis CJ said, the sexual abuse of children calls for a “strongly deterrent sentencing response”.[55]

   [55]   R v MJJ; R v CJN (2013) 117 SASR 81 at [84].

6. Something more should be said regarding the possession and production of child pornography.

7. In the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography the preamble indicates that the States Parties to the protocol, of which Australia is one, agreed its content:[56]

   Recognizing that a number of particularly vulnerable groups, including girl children, are at greater risk of sexual exploitation, and that girl children are disproportionately represented among the sexually exploited,

   and

   Concerned about the growing availability of child pornography on the Internet and other evolving technologies, and recalling the International Conference on Combating Child Pornography on the Internet (Vienna, 1999), in particular, its conclusion calling for the worldwide criminalization of the production, distribution, exportation, transmission, importation, intentional possession and advertising of child pornography ...

   [56]   Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography GA Res 263 (54), UN GAOR, 54^th sess, 116^th plen mtg, UN Doc A/RES/54/263 (25 May 2000).

8. The content of the protocol included the obligation to criminalise the producing, distributing, disseminating, importing, exporting, offering, selling or possessing of child pornography.

9. The South Australian offences of possess child pornography and produce child pornography are a component of the various measures that our community has taken to protect our children. They also form a part of the nation’s commitment to the implementation of the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography.

10. In R v Padberg Doyle CJ referred to a number of authorities that in combination suggest a relatively uniform approach across the nation to sentencing for child pornography offences and the principles.[57] Most recently that approach, updated, has been summarised by Robinson AJ sitting in the Supreme Court of the Australian Capital Territory. He said:[58]

    [57] (2010) 107 SASR 386 at [27]-[29].

    [58]   R v Arthur [2017] ACTSC 23 at [17].

    There is now a body of propositions, established at the appellate level, which applies to sentencing for child pornography offences. It is convenient to set out these propositions from R v De Leeuw [2015] NSWCCA 183 at [72]-

    (a) Unless exceptional circumstances exist, a sentence involving an immediate term of imprisonment is ordinarily warranted: R v Jongsma [2004] VSCA 218; 150 A Crim R 386 at 395 [14]; Hill v Western Australia [2009] WASCA 4 at [28]; R v Booth [2009] NSWCCA 89 at [48]; R v Sykes [2009] QCA 267 at [24]; DPP v Groube [2010] VSCA 150 at [24]; DPP (Cth) v D’Alessandro [2010] VSCA 60; 26 VR 477 at 483-4 [21]; Director of Public Prosecutions (Cth) v Guest [2014] VSCA 29 at [23]-[24]; DPP v Smith [2010] VSCA 215 at [23], [26]-[29].

    (b) The objective seriousness of the offending is ordinarily determined by reference to the following factors:

    (i)      the nature and content of the material, in particular the age of the children and the gravity of the sexual activity depicted;

    (ii)     the number of items or images possessed;

    (iii)     whether the material is for the purpose of sale or further distribution;

    (iv)    whether the offender will profit from the offence;

    (v)     in the case of possession or access of child pornography for personal use, the number of children depicted and thereby victimised;

    (vi)    the length of time for which the pornographic material was possessed: R v Jongsma at 400 [28]; R v Gent [2005] NSWCCA 370; 162 A Crim R 29 at 49 [99]; DPP (Cth) v D’Alessandro at 483-484 [21]; DPP (Cth) v Guest at [25].

    (c) General deterrence is the primary sentencing consideration for offending involving child pornography: Assheton v R [2002] WASCA 209; 132 A Crim R 237 at 246-247 [35]-[36]; DPP (Cth) v D’Alessandro at 483-484 [21]; Edwards v The Queen [2013] VSCA 188 at [22]; DPP (Cth) v Guest at [25]; Heathcote (A Pseudonym) v R [2014] VSCA 37 at [40]; DPP (Cth) v Zarb [2014] VSCA 347 at [34].

    (d) Less or limited weight is given to an offender’s prior good character: R v Gent at 44 [65]; DPP (Cth) v D’Alessandro at 483-484 [21]; Mouscas v R [2008] NSWCCA 181 at [37].

    (e) Offending involving child pornography occurs on an international level and is becoming increasingly prevalent with the advent of the Internet as a means of allowing people to access and obtain child pornography: R v Jones [1999] WASCA 24; 108 A Crim R 50 at 51 [2]; Asheton v R at 246-247 [35]-[36].

    (f) Offending involving child pornography is difficult to detect given the anonymity provided by the Internet: Mouscas v R at [31]; R v Booth at [29].

    (g) The possession of child pornography material creates a market for the continued corruption and exploitation of children: R v Coffey [2003] VSCA 155; 6 VR 543 at 552 [30]; R v Cook; Ex parte Director of Public Prosecutions (Cth) [2004] QCA 469 at [21]; R v Jongsma at 395 [14]; Heathcote (A Pseudonym) v R at [40].

    (h) There is a paramount public interest objective in promoting the protection of children as the possession of child pornography is not a victimless crime - children are sexually abused in order to supply the market: R v Jones at 52 [9]; DPP (Cth) v D’Alessandro at 484 [23].

    (i) The fact that an offender does not pay to access a child pornography website or was not involved in the distribution or sale of child pornography does not mitigate the offending: R v Coffey at 552 [30].

11. It should be emphasised that the factors set out at paragraph (b) concern the objective seriousness of the offending. They concentrate upon the harm occasioned to, and exploitation of, the children featured, in addition to their repeated exploitation and victimisation by the dissemination of the images and the consequent creation of a market and its associated encouragement to others to sexually abuse and exploit children. Relevantly, in Paroline v US the Supreme Court of the United States observed:[59]

    Three decades ago, this Court observed that “the exploitive use of children in the production of pornography has become a serious national problem.” New York v. Ferber, 458 U.S. 747, 749, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). The demand for child pornography harms children in part because it drives production, which involves child abuse. The harms caused by child pornography, however, are still more extensive because child pornography is “a permanent record” of the depicted child's abuse, and “the harm to the child is exacerbated by [its] circulation.” Id., at 759, 102 S.Ct. 3348. Because child pornography is now traded with ease on the Internet, “the number of still images and videos memorializing the sexual assault and other sexual exploitation of children, many very young in age, has grown exponentially.” United States Sentencing Comm'n, P. Saris et al., Federal Child Pornography Offenses 3 (2012) (hereinafter Sentencing Comm'n Report).

    [59]   Paroline v US, 134 S Ct 1710 (2014).

12. Sight should never be lost of the fact that the distribution of child pornography results in the continued re-victimisation of the child featured, not to mention the corrupting influence it has on those who access the material. It is for these reasons that whilst an intention to profit or benefit from the material will aggravate the offence, absence of such profit or benefit is not mitigatory.

13. Returning to the issue of re-victimisation, in Paroline the Supreme Court described the harm that child pornography occasions the child featured:[60]

    One person whose story illustrates the devastating harm caused by child pornography is the respondent victim in this case. When she was eight and nine years old, she was sexually abused by her uncle in order to produce child pornography. Her uncle was prosecuted, required to pay about $6,000 in restitution, and sentenced to a lengthy prison term. The victim underwent an initial course of therapy beginning in 1998 and continuing into 1999. By the end of this period, her therapist's notes reported that she was “ ‘back to normal’ ”; her involvement in dance and other age-appropriate activities, and the support of her family, justified an optimistic assessment. App. 70–71. Her functioning appeared to decline in her teenage years, however; and a major blow to her recovery came when, at the age of 17, she learned that images of her abuse were being trafficked on the Internet. Id., at 71. The digital images were available nationwide and no doubt worldwide. Though the exact scale of the trade in her images is unknown, the possessors to date easily number in the thousands. The knowledge that her images were circulated far and wide renewed the victim's trauma and made it difficult for her to recover from her abuse. As she explained in a victim impact statement submitted to the District Court in this case:

    “Every day of my life I live in constant fear that someone will see my pictures and recognize me and that I will be humiliated all over again. It hurts me to know someone is looking at them—at me—when I was just a little girl being abused for the camera. I did not choose to be there, but now I am there forever in pictures that people are using to do sick things. I want it all erased. I want it all stopped. But I am powerless to stop it just like I was powerless to stop my uncle.... My life and my feelings are worse now because the crime has never really stopped and will never really stop.... It's like I am being abused over and over and over again.” Id., at 60–61.

    The victim says in her statement that her fear and trauma make it difficult for her to trust others or to feel that she has control over what happens to her. Id., at 63.

    The full extent of this victim's suffering is hard to grasp. Her abuser took away her childhood, her self-conception of her innocence, and her freedom from the kind of nightmares and memories that most others will never know. These crimes were compounded by the distribution of images of her abuser's horrific acts, which meant the wrongs inflicted upon her were in effect repeated; for she knew her humiliation and hurt were and would be renewed into the future as an ever-increasing number of wrongdoers witnessed the crimes committed against her.

    [60]   Paroline v US, 134 S Ct. 1710 (2014).

14. The ongoing and real risk of re-victimisation and the perpetual exploitation of the child that dissemination over the Internet has demands that paramountcy be afforded general deterrence.

15. Obviously subjective factors such as personal responsibility for the production of the material, the level of personal interest in the material, and participation in the images captured, will also be important to any assessment of the gravity of the offending.[61]

    [61]   Director of Public Prosecutions (Tas) v Latham (2009) 19 Tas R 281 at [34] quoted with approval in R v Padberg (2010) 107 SASR 386 at [27] (Doyle CJ, White J agreeing).

16. In this case the Judge relied in part upon the National Exploitation Material Category Standard which the investigating officers had used as a means of assessing the gravity of the images and videos of JF taken by the appellant.[62] The standard is as follows:

    [62]   At [106] above.

Category	Category Representation	Guide
1	No Sexual Activity	Depictions of children with no sexual activity – nudity, surreptitious images showing underwear nakedness, sexually suggestive posing, explicit emphasis on genital areas, solo urination.
2	Child Non-Penetrate	Non-penetrative sexual activity between children or solo masturbation by a child.
3	Adult Non-Penetrate	Non-penetrative sexual activity between child(ren) and adult(s). Mutual masturbation and other non-penetrative sexual activity.
4	Child/Adult Penetrate	Penetrative sexual activity between child(ren) or between child(ren) and adult(s) – including, but not limited to, intercourse, cunnilingus and fellatio.
5	Sadism/Bestiality/Child	Sadism, bestiality or humiliation (urination, defecation, vomit, bondage etc) or child abuse as per CCA 1995.
6	Animated or Virtual	Anime, cartoons, comics and drawings depicting children engage in sexual poses or activity.
7	Non-illegal/Indicative	Non-illegal child material (believed to form part of a series containing child exploitation material).
8	Adult-Pornography	All pornographic material not considered child exploitation material related.
9	Ignorable	Banners and other non-objectionable graphics useful for establishing proportionality. System files and unrelated images – holiday snaps, landscape, family photos etc.

1. My understanding is that the National Exploitation Material Category Standard is based upon the COPINE Project typologies referred to in R v Oliver.[63] These standards are of great assistance. However, it is important that a sentencer not defer to the opinion of the authorities. That does not mean that in a case involving hundreds, perhaps thousands, of images, that the sentencing judge must view each and every image. It is enough that a sufficient sample be viewed such that the accuracy of any schedule produced by the police using National Exploitation Material Category Standard is verified and the judge has a sufficient appreciation of the content of the material to appreciate the gravity of the offending and record the same so that this Court may then discharge its function if called upon to do so. This approach accords with the guidance provided by the Western Australian Court of Appeal in Kenworthy v The Queen (No 2) where that Court said:[64]

   The use of this classification system, and its limits, was referred to by this court in Smit v The State of Western Australia, where it was observed:

   It is not suggested by the English Court of Appeal that its classification list is intended to be a substitute for the sentencing judge viewing the pornographic material the subject of the conviction.  Nor should it.  The relative perversion and debauchery of the pornographic material is a relevant sentencing factor.  Viewing a representative sample (as identified or agreed by the parties) of the material will ordinarily be necessary for the proper performance of the sentencing judge's duties.  Judges involved in the administration of the criminal law are frequently exposed to material that is deeply offensive in a myriad of different ways whilst being required to retain their objectivity and sense of proportion.  Moreover, this court is assisted by findings as to the nature of the pornographic material such as those made by the sentencing judge in this case which went well beyond the limited description in the DPP's list.  The classification levels can only be of marginal assistance to courts involved in imposing or reviewing sentences for offences involving child pornography.

   Depending on the circumstances, the ordinary approach of the sentencing judge viewing a representative sample of the pornographic material may not be necessary where the parties provide a sufficiently detailed agreed description of the nature and egregious features of the pornographic material which is the subject of the charge.  Such a written description will need to descend to particulars well beyond the CETS classification of the material.  The nature of the material within each CETS category may range from written text and cartoons to photographic images and videos, and even within those sub‑categories the depravity of the images and the seriousness of the child abuse they depict may vary considerably.  However, whether a sentencing judge views a representative sample of the images or is content to proceed on a sufficiently detailed written description, he or she should ordinarily make findings of fact as to the nature and egregious features of the pornography in a manner that extends beyond CETS categories.

   (footnotes omitted).

   [63] [2003] 1 Cr App R 28.

   [64] [2016] WASCA 207 at [138]-[139].

1. I did not view all of the images and videos that were provided to the Court for the purposes of sentencing. I did, however, view approximately 100 chosen randomly. Many consist of images of JF’s breasts and genitalia. In many the vibrator is used as a prop held between JF’s breasts or close to or in her vagina. In some she has the vibrator in her mouth. In many others JF is featured sitting with her legs apart or on all fours using her hands to expose her genitalia to the camera. In some she is sitting on the boot of the appellant’s car, again adopting poses such as I have described. The appellant features in a number of the images associating himself with her genitalia which is clearly in view and no more than an arm’s length from him. In others JF is immediately behind him, her breasts visible to the side of his face. In others she is kneeling across his chest and the photograph taken of his face in close proximity to her genitalia. The videos show JF in numerous sexually suggestive poses. They also show the appellant directing her as to the pose to adopt. On occasion he comes onto screen moving her legs or adjusting the position of the vibrator. The videos also show the appellant had the use of two cameras on occasion, one videoing events during which he appears holding a second to take close up shots of the naked JF and her body. In a number of the videos JF masturbates using her hand or the vibrator seemingly on instruction from the appellant. In one video she masturbates, sitting naked in the front passenger seat of his car as he is driving.

2. The images are degrading, demeaning and dehumanising.

   v.      Personal circumstances

3. The Judge summarised the appellant’s personal circumstances as follows:

   I turn to your personal circumstances. You are now 25 years of age. You were born in Sri Lanka. Your mother abandoned you as a baby almost at birth. You have never known your father. Whilst in an orphanage, you were adopted by your Australian parents. You have one older sibling. You came to Australia when you were two months of age. You attended at the Windsor Gardens Vocational College for your education. This was a school which specialised in trades to Year 8. You had a supportive upbringing at home but at school you did not feel like you fitted in due to the colour of your skin.

   You left school in year 10 and got a full-time job making cabinets. You entered into a longstanding relationship with your former girlfriend. This lasted for a period of six years. In the end, this became a very destructive relationship from your point of view. You left work as a cabinetmaker and commenced work at an events company with which you have been working part-time for the last seven years, although you have not worked for the last year because you lost your driver’s licence.

   Your son was born in late 2012. He was an unplanned pregnancy and you were not in a relationship with his mother at the time. You have taken responsibility for your son effectively from his birth. The care of your son has now ultimately been given to your parents. Your bail conditions mean that you are not able to live at your parents’ home, as you cannot have full-time contact with your son. Your counsel submitted that your life revolved around your son. …

4. It was not suggested that the Judge’s summary of the appellant’s personal circumstances was inaccurate or inadequate. I adopt it.

5. The appellant has no history of offending of the kind for which he is now to be sentenced. His antecedents, such as they are, are for offending of a nature that provides no assistance in determining the appropriate penalty in this case.

   vi.     The discounts to which the appellant is entitled

6. I see no reason why this Court on re-sentencing should not afford the appellant the same discounts for his pleas as did the sentencing Judge, namely, 10% for each of the possess and produce child pornography charges.

   vii.   The appropriate sentence

7. The offending is grave. For the reasons given above, general deterrence must be afforded paramountcy. An immediate sentence of imprisonment was and is the only appropriate penalty.

8. I have described the nature and content of the material above. The images the appellant took are, and the footage he recorded is, as I have said, degrading, demeaning and dehumanising.

9. I proceed on the basis that the appellant was reckless as to JF’s age. By that I mean he did not form any view as to her actual age but ran the risk that she was a child and was under the age of 14.

10. JF was 13 years old. I agree with the Judge that the appellant exploited JF for his own sexual gratification. The victim impact statement provided by JF’s mother tells of the negative impact the appellant’s offending had upon JF, the shame and embarrassment it has caused JF, the guilt it has caused her mother, and the harm done the mother daughter relationship.

11. I reject the submission that any touching by the appellant was incidental. From the sample of the material tendered upon sentencing that I viewed, it is plain that the appellant directed JF to pose for his purposes and was prepared to touch her in order to achieve the pose he desired. The poses he requested were debasing and degrading. Further, he was prepared to take part in poses with JF himself, no doubt intending to heighten the satisfaction he intended to gain from the material upon viewing it in the future. I point out here, that the appellant was always clothed, but that is far from mitigatory. Rather, it highlights all the more an attitude of intended debasement towards JF and her exploitation.

12. I bear in mind that there is no indication that the material was intended for dissemination or that it had been disseminated. Fortunately that has the consequence that the risk of re-victimisation for JF evaporates. It also means that the only benefit that the appellant intended to gain from his offending was the satisfaction of his own prurient interests.

13. I take into account that there is overlap between the circumstances of the offending subject of each count in that it was in the course of producing the child pornography that the offence of unlawful sexual intercourse was committed and that the pornography possessed was that produced.

14. The fact that the appellant not only directed the poses adopted by JF, but on occasion included himself in some of the images recorded demonstrates a profound interest in the subject matter. I include in that observation his obvious sexual interest in JF, a child.

15. I bear in mind the appellant’s personal circumstances. I also bear in mind that he is a man of only 26 years of age with a young son. I take into account, as the Judge did, the appellant’s expression of remorse and contrition manifest in his desire to apologise to JF and her mother for the distress he has caused.

16. No real explanation is offered by the appellant for his offending save that he considered JF older than she was.

17. For the offence of possess child pornography, count one, I would sentence the appellant to seven months imprisonment (210 days).[65] I reduce that by 10% (21 days) on account of his plea of guilty to 189 days.

    [65]   For the purposes of all sentences imposed here one month is treated as 30 days.

18. For the offence of producing child pornography, count four, I would sentence the appellant to twenty months imprisonment (600 days). I reduce that by 10% (60 days) on account of his plea of guilty to 540 days. I would order that the sentence imposed on count one be served concurrently with that imposed on count four.

19. For the offence of unlawful sexual intercourse, count five, I would impose a sentence of three years and six months imprisonment. Having regard to the overlap between count four and five, I would reduce that sentence by six months and order that it be served cumulatively upon the sentence imposed for count four.

20. I bear in mind the totality principle. I do not consider the sentences imposed and the ultimate period to be served disproportionate to the appellant’s offending taken as a whole.

21. The consequence is that I would impose a total head sentence greater than that imposed by the Judge. In those circumstances, bearing in mind the injunction contained in s 353(5) CLCA, whilst I consider that the sentence imposed was affected by error, in my view the appellant should not be re-sentenced.

    f.       Conclusion

22. I would dismiss the appeal.