Rivo v The Queen

[2012] VSCA 117

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0309

ROGER RIVO	Applicant
	v
THE QUEEN	Respondent

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JUDGES:	NEAVE and OSBORN JJA and KING AJA
WHERE HELD:	GEELONG
DATE OF HEARING:	29 May 2012
DATE OF JUDGMENT:	29 May 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 117
JUDGMENT APPEALED FROM	R v Rivo (Unreported, County Court of Victoria, Judge Campton, 28 October 2011)

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CRIMINAL LAW – Application for leave to appeal against sentence – Criminal Code Act 1995 (Cth) s 474.19 – Offender causing child pornography to be transmitted to himself – Criminal Code Act 1995 (Cth) s 272.14 – Engaging in conduct to procure children to engage in sexual activity outside Australia – manner in which offender caused material to be transmitted – nature of pornographic content of material – Directness of relationship with production of pornographic material and sexual activity of children – Relevance of consequences of offending to factors of specific and general deterrence – Not reasonably arguable sentencing judge had regard to irrelevant considerations – Not reasonably arguable sentence manifestly excessive – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C Carr	Wightons Lawyers
For the Respondent	Mr J Gullaci	Commonwealth Director of Public Prosecutions

NEAVE JA
OSBORN JA
KING AJA:

1. This is an application for leave to appeal against sentences imposed by her Honour Judge Campton in respect of two rolled up charges relating to the procuring of child pornography constituted by live sex shows in the Philippines. 

1. On 20 October 2011, the applicant pleaded guilty at the Geelong County Court before her Honour Judge Campton to an indictment containing the following two counts:

(a) Count 1 - Causing child pornography material to be transmitted to himself contrary to s 474.19(1) of the Criminal Code (Cth); and

(b) Count 2 - Engaging in conduct to procure children under the age of 16 to engage in sexual activity outside Australia contrary to s 272.14(1) of the Criminal Code (Cth).

1. On 28 October 2011, her Honour sentenced the applicant as follows:

(a)       On count 1 – four years’ imprisonment; and

(b)      On count 2 - six years’ imprisonment.

1. Her Honour stated that one year of the sentence imposed on count 1 was to be served cumulatively on the sentence imposed on count 2 giving a total effective sentence of seven years with a minimum non parole period of five years.

Charge on Indictment	Offence	Maximum	Sentence	Cumulation
1.	Causing child pornography material to be transmitted to himself contrary to s 474.19(1) of the Criminal Code (Cth)	10 years	4 years	1 year cumulative on the sentence imposed on count 2
2.	Engaging in conduct to procure children under the age of 16 to engage in sexual activity outside Australia contrary to s 272.14(1) of the Criminal Code (Cth)	15 years	6 years	Base sentence
Total Effective Sentence:		7 years
Non-Parole Period:		5 years
Pre-Sentence detention declared		167 days
6AAA Statement: The learned trial Judge stated that the sentence she would have imposed if the applicant had been convicted of this offence after a trial would have been 10 years’ imprisonment, with the applicant becoming eligible for parole after serving 7 years of that sentence.
Other relevant orders: N/A

The background facts

1. On 17 February 2011, the Australian Federal Police ('AFP') executed a search warrant at the residential address of the applicant in Norlane, Victoria.  A number of items were seized during the search including computer equipment which when analysed, revealed the existence of Yahoo messenger chat logs between a user 'Rambo.Rivo' and others.  The applicant used this name in conversations with other persons during which he procured live sex shows involving children.

1. On 14 May 2011, AFP officers executed a further search warrant at premises to which the applicant had moved in the interim.  There the AFP seized further computer equipment an analysis of which showed that the applicant had participated in further Yahoo chat sessions on 4 and 5 May 2011.  During those further chat sessions the applicant again used the name 'Rambo.Rivo' and procured live sex shows involving an eight year old girl. 

1. A full analysis of the seized computer equipment (from both search warrants) was conducted which showed that between 11 April 2009 to 4 May 2009 the applicant had procured online sex shows from the Philippines involving children under the age of 16.  The live sex shows were not recorded but sufficient information was retained in the chat logs to show details of the nature of the shows thereby procured.

1. Count 1 is a rolled-up count which encompassed online chat sessions with three individuals in the Philippines.  During those sessions the applicant agreed to pay the sum(s) of between $35 to $60 for live sex shows involving children and was provided with details of how to make the money transfers.

1. The applicant took part in six separate online chat sessions (between 11 April 2009 and 25 July 2009).  During those chat sessions the applicant took the role of what was fairly described by her Honour as 'film director'.  The applicant provided instructions to the procurers, such as asking for two girls between the ages of 6 and 10, telling a 10 year old girl to tie a string on a 12 year old boy's penis and make it tight, telling the 10 year old girl to pull it properly, saying he wanted to see the boy come as he didn't see that last time and giving further instructions such as 'pants off now' and 'open her legs too' and asking for the girl to be shown some porn and for the girl to open her legs a little.

1. On 25 July 2009, the applicant was told that he could view pictures of two small girls sucking a horse and the applicant asked for a discount.  The applicant was told that there were girls of 6, 7 and 8.  The applicant advised that he would pay double for a dog.

1. Count 2 is a rolled-up count which involves the applicant seeking to procure children under the age of 16 to engage in sexual activity outside Australia on 12 different dates between 9 July 2010 and 4 May 2011.  The chat sessions in which the applicant was engaged involved a number of different procurers in the Philippines and again involved the applicant asking the procurers to get young children to engage in sex shows.  Again, the involvement of the applicant was as 'film director' giving instructions to the procurers and children in the sex shows.

1. In most of the chat sessions the applicant was provided with details for a money transfer and he subsequently transferred money to the procurers via Western Union.  The sums of money paid or agreed to be paid by the applicant for the sex shows ranged from $35 to $105.

1. During the final chat session on 4 May 2011, the applicant was told that one girl was 16 and he provided instructions such as 'move her hair when she sucked him' and 'make her pee while she sucks him' and 'put finger in the small girl's bum'.  The applicant also asked for the small girl to drink pee and then said that he had missed it as his camera froze.  The applicant was told that the small girl was 8 and said, 'cool I can't wait til she fucks a boy'.  The applicant said he wanted to have sex with a girl and that he was hoping to be in Cebu in a few weeks. 

1. During a record of interview conducted by the AFP, the applicant admitted that the girls would be aged from 8 years old onwards and an analysis of the chat logs appears to confirm that the children involved were aged from 8 years old to 16 years old.  It is impossible to determine with accuracy the number of children involved in these sessions.

1. During the record of interview, the applicant admitted that, after the first AFP search warrant was executed in February 2011, he knew what he had been doing was wrong but said he did not realize the consequences.  The applicant admitted that he had asked for shows involving children but stated that, after the first AFP search warrant was executed, he was pushed into and dragged into using the children during the shows.  The applicant admitted masturbating whilst the girls were performing the sexual acts but stated he was not attracted to the girls.  The applicant admitted initially watching women from 20 to 30 years of age but was later told by the procurers that they had girls and had said, 'all right'.  The applicant admitted that he then asked for children from 8 years upwards. 

Relevant considerations

1. Leave to appeal is now sought on two grounds, the first being that the sentencing judge took into account irrelevant considerations and the second being that the penalty imposed is manifestly excessive both in its component parts and in the total effective sentence imposed. 

1. It is submitted in the applicant's written case that the sentencing judge erred in taking into account matters raised in submissions made on behalf of the prosecutor at the plea hearing.  The sentencing judge recorded the prosecution's submissions in her reasons for sentence as follows: 

58The prosecutor acknowledged your early plea of guilty and your co-operation and assistance to the authorities.  While no one had been arrested due to your assistance, it was described as being of medium value.  However, both general and specific deterrence were submitted to be significant factors in sentencing you, given the following matters:

(i)After initially coming to the attention of the authorities, you had continued to offend;

(ii)Mr McKinnon had assessed you as a paedophile;

(iii)The young age of the children, generally being between eight to 12 years old;

(iv)That both children and adults had been involved;

(v)That although it was not possible to precisely identity how many children were involved, it was a significant number;

(vi)The sex shows were likely to result in long term psychological difficulties to these children;

(vii)You had shown no real regard for the welfare of vulnerable children and actively encouraged sexual abuse;

(viii)That you had been offending for an extended period … although it was not suggested that it occurred during the gap between the offences; and

(ix)That in the record of interview you had downplayed your involvement.[1] 

[1]Reasons for sentence, 28 October 2011 and 9 November 2011, [58]. 

1. The written case filed on behalf of the applicant submits that the judge took into account irrelevant considerations on the following bases:

(a) in respect of the conviction under s 474.19(1) it was irrelevant to have regard to the sixth and seventh consideration referred to above; and

(b) in respect of the conviction under s 272.14(1) it was irrelevant to have regard to the third, fourth, fifth, sixth and seventh factors referred to above.

1. There are some threshold difficulties with this submission:

·     it can hardly be an error for the judge to have recorded the prosecution’s submissions; and

·     the factual matters which the sentencing judge ultimately regarded as critical were identified in somewhat different terms. 

1. After having recorded that her primary obligation as a sentencing judge in respect of Federal offences was to impose a sentence that was of severity appropriate to all the circumstances of the offending, her Honour went on to refer to s 16A(2) of the Crimes Act 1918 (Cth) and the mitigating factors put forward by counsel for the applicant.  She specifically noted the applicant’s plea of guilty and the fact that the plea saved the victims of the offending the trauma of giving evidence and the Commonwealth the expense of trial.  She accepted that the plea of guilty reflected remorse, but also accepted the opinion of a forensic psychologist that the applicant had only limited insight into his offending.  The judge then identified the following further critical considerations:

·     the fact that the counts were rolled-up counts relating to pornography depicting significant offences against young children obtained for the gratification of the applicant’s sexual desires;

·     the fact that there was a progression in the depravity of the applicant’s offending over time; and

·     the fact that the applicant directed the actual sexual activities carried out on and by children and was directly responsible for the content of the sex shows. 

1. The matters referred to in the prosecution’s submissions may be taken to have informed her Honour’s conclusion that the rolled-up counts related to ‘significant offences against young children’, that there was a progression in the depravity of the offending, and that, while the applicant did not directly abuse the children himself, his direction of the sexual activities carried out made him directly responsible for the contents of the sex shows. 

1. In oral submission today, Mr Carr directed attention specifically to her Honour's sentencing remarks at paragraphs [49], [66] and [68] of her reasons for sentence:

[49]Your behaviour was predatory, and specific children were targeted and victimised as a consequence of your own offending behaviour.  You could be regarded as an offender who had actively offended against children but who had not quite offended in a hands-on manner.

…

[66]In sentencing you, I have also taken into account that these are rolled up counts of significant offences against young children for the gratification of your sexual desires.  The authorities I referred to earlier in this sentence make it clear that general deterrence looms large in offences such as yours.  I must also take into account that as you have been diagnosed as suffering from paedophilia, specific deterrence is an important sentencing consideration.  It is also relevant because after the first AFP search of your premises, you continued to engage in online offences until the second search.

…

[68]While you did not physically abuse these children yourself, the line between your conduct in directing the actual sexual activities carried out on and by the children for your sexual gratification is so thin as to be virtually non-existent.  To put it plainly, you called the shots, you decided what was to be done to and by these children.  You were directly responsible for the contents of the sex shows.  On behalf of this community, I denounce your conduct and I sentence you as follows … [2]

[2]Emphasis added.

1. At [49], however, her Honour makes clear that she distinguishes between the applicant's offending below and its consequences.  Taken as a whole, it is plain from her Honour's reasons for sentence that she did not sentence on the basis that the applicant was to be punished for the actual sexual abuse of the children, but rather that she had regard to the full circumstances and consequences of the offending in issue, in respect of which she was required to pass sentence.

1. The elements of the first count charged required the Crown to prove that the applicant:

(a)       caused material to be transmitted to himself;

(b)      using a carriage service (as defined); and

(c)       such material constituted child pornography. 

1. The matters raised by the prosecution in respect of which complaint is now made went to the objective seriousness of the offending, in that:

(a)       they went to the manner in which the applicant caused the material to be transmitted; and

(b)      they went to the nature of the pornographic content of such material. 

1. Further, they went in particular to the matrix of facts in which the question of the need for specific and general deterrence was to be judged.  It was on this basis that they were put forward.

1. The fact that the sex shows were likely to result are in lasting psychological difficulties for the children involved and that the applicant showed no regard for the children but actively encouraged their abuse, went to aspects of the offending which bore directly on the needs to denounce the applicant's conduct and discourage like conduct by others by imposing an appropriate penalty.  The lack of insight on the applicant's part and the impact of his offending bore on the need for specific deterrence.

1. The elements of the second offence required the Crown to prove:

(a)       the applicant engaged in conduct;

(b)      with the intention to procure children under 16 to engage in sexual activity;

(c)       outside Australia. 

1. The matters raised by the prosecution bore on the objective seriousness of the offence because they went for the nature of the applicant's conduct and in particular his direct involvement or in control of the activity depicted.  They went to the nature of the sexual activity in issue and its probable consequences. 

1. Once again, each of the matters form part of the circumstances directly relevant to questions of general and specific deterrence. 

1. The young age of the children involved, the fact that both adults and children were involved, the likely psychological consequences to the children and the lack of insight on the applicant's part into the impact on the welfare of the children all bore on aspects of the offending which required a penalty reflecting adequate denunciation and general deterrence of like offending.  Again, the ongoing back of insight involved bore on the need for specific deterrence. 

1. It is submitted on behalf of the applicant that neither offence is directed towards actual sexual conduct.  We accept that this is so,[3] but the character of the pornography forming the subject of the first count and of the sexual activity forming the subject matter of the second count, must relevant considerations.

   [3]Western Australia v Collier (2007) 178 A Crim R 310.

1. So must the proximity of the offender's activity with those responsible for bringing the pornographic material into existence and the directness of the offender's involvement in procuring the relevant sexual activity.[4]  

   [4]Minehan v The Queen (2010) 201 A Crim R 243, 260-1 [94].

1. It is further submitted that as the relevant sexual conduct occurred in a different jurisdiction from Australia it is not amenable to Australian laws and/or relevant to the breach of Australian laws. This is plainly incorrect. Section 474.19 is premised upon a transmission of child pornography to Australia. Section 272.14 is directed to procuring by conduct in Australia sexual activity outside Australia.

1. Next, it is submitted that the applicant falls to be sentenced in respect of offending that does not include ‘the result of his conduct’.  He is not to be sentenced as if he perpetrated sexual offences directly upon the children.[5]  We do not take her Honour the sentencing judge to have sentenced on the basis that the offending conduct was other than that charged.  Each of the matters put forward by the Crown as bearing on the questions of general and specific deterrence was relevant for the reasons we have explained. 

   [5]De Simoni (1981) 147 CLR 383, 389 (Gibbs CJ); Pollard v R 2010 VSCA 156, [23] (Maxwell P, Weinberg JA). 

1. Nothing in her Honour’s reasons (including, in particular, the matters she identified in her sentencing remarks as critical) demonstrates that she had regard to the matters complained of for other than appropriate reasons.  Each of the considerations referred to on behalf of the Crown was plainly relevant to the sentencing discretion.  Further, as we have said, when her Honour's reasons for sentence are read as a whole, they make clear that she did not sentence on the basis that the applicant directly perpetrated sexual offences upon children. 

1. Accordingly, in our view, Ground 1 is not reasonably arguable.

Manifest excess

1. Before turning to this ground, it is necessary to say something briefly concerning the applicant’s personal circumstances.  The applicant was born in Australia in 1964 and was raised in Geelong by Italian immigrant parents.  He was schooled to Year 11 at a technical school and obtained a certificate in electronics technology.  He worked first for Telecom and was then employed in the TV antenna satellite dish business for about 30 years, first working for an employer and then for himself.  He was married at 25 and had two children.  The marriage lasted only three years, but subsequently, over the three years prior to sentence, he had been in a stable relationship and had a son. 

1. He had some 15 prior convictions for road traffic and dishonesty matters.  He had previously served a short period of imprisonment for driving whilst authorisation was suspended.

1. A forensic psychologist (whose report was put in evidence) diagnosed the applicant as meeting the criteria for paedophilia and stated that the applicant was not merely a passive consumer of child porn but had engaged in predatory behaviour directed to specific children.  The applicant’s cognitive function was assessed as being in the normal range.  In the psychologist’s view, the continued offending after the first AFP search of the applicant’s home suggested that the applicant was probably struggling with a child porn sex show addiction.

1. The psychologist assessed the applicant as appearing deeply ashamed of his involvement in the offences, but also said that the applicant sought to blame the Philippine adults who were involved in the criminal activity.  In the psychologist’s opinion, the applicant had only partially assumed responsibility for involvement in the sex shows and had yet to fully acknowledge the extent and implications of his behaviours.  Nevertheless, given the applicant’s overwhelming sense of shame and remorse, the psychologist considered the applicant’s prospects for rehabilitation appeared ‘somewhat favourable’.  He considered that the applicant was probably a good candidate for sex offender treatment.

1. The written case for the applicant emphasises the positive aspects of the plea on his behalf.

24.      Positive aspects of the plea included the following:

a)plea of guilty at the earliest possible stage;

b)remorse for offending demonstrated by a full and comprehensive record of interview;

c)cooperation with police by giving them permission to adopt the appellant's online identity (to further investigate the matters) - said by the prosecution to be of 'medium' value;

d)offending occurred during a period of poor sexual activity in the relationship;

e)the offending started with adult porn and descended into child porn with the appellant becoming de-sensitized in the process;

f)no criminal history for similar offences;

g)prospects for rehabilitation were favourable as the appellant accepted responsibility for his offences and was prepared to undergo the sex offenders course; and

h)supportive family who were present in court and visited the appellant at the remand centre.[6]

[6]Written case for the applicant, [24]. 

1. Despite these matters, we do not accept that Ground 2 is reasonably arguable having regard to:

·     the maximum penalties of 10 and 15 years applicable to the offences in issue;

·     the rolled-up nature of the counts (the first count covered six separate incidents and the second count covered 12 separate incidents);

·     the objective seriousness of the sexual activity involved, having regard to the age and number of the children and the evidence as to the nature of the conduct in which they were involved;

·     the increasing depravity in the conduct the subject of the offending;

·     the direct involvement and dominant role of the applicant in controlling the content of the overseas activities;

·     the very significant need for general deterrence;[7]

·     the need for specific deterrence having regard to the diagnosis of paedophilia, the course of the offending and the continuation of the offending after a first search was conducted by investigating police.

[7]DPP (Cth) v Hizhnikov [2008] VSCA 269, [27].

1. It is submitted on behalf of the applicant that the offending amounted to one extended episode, albeit captured by two separate offences as a result of a change of legislation during the period in issue.  We accept there was a continuing course of conduct but each of the episodes forming the subject of the rolled up counts comprises conduct which was individually culpable and distinct in time. 

1. It is further submitted that the sentence is excessive having regard to the fact that the applicant pleaded guilty at a very early point in time, had no relevant prior convictions, was cooperative with police and provided assistance to enable police to make further investigations.

1. Her Honour took account of each of those matters, as do we, but in our view they do not demonstrate the sentence was excessive having regard to the factors to which we have referred. 

1. Finally it is submitted that a total effective sentence amounting to approximately half the maximum penalty for a single charge is manifestly excessive.  Given the rolled up nature of the counts, we do not accept this to be so.

1. For the above reasons we are of the view that Ground 2 is not reasonably arguable and the application for leave to appeal should be refused.

1. The order of the Court is that the application for leave to appeal is refused.