Taylor v The Queen

[2015] TASCCA 7

[2015] TASCCA 7

COURT:        SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION:                Taylor v The Queen [2015] TASCCA 7

PARTIES:  TAYLOR, Simon Jonathon
  v
  THE QUEEN

FILE NO:  CCA 923/2014
DELIVERED ON:  17 April 2015
DELIVERED AT:  Hobart
HEARING DATE:  5 March 2015
JUDGMENT OF:  Blow CJ, Wood and Pearce JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Using carriage service to access child pornography material and possessing child exploitation material.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
             Appellant:  K Cuthbertson
             Respondent:  I M Arendt
Solicitors:
             Appellant:  Murdoch Clarke
             Respondent:  Director of Public Prosecutions (Commonwealth)

Judgment Number:  [2015] TASCCA 7
Number of paragraphs:  40

Serial No 7/2015

File No CCA 923/2014

SIMON JONATHON TAYLOR v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW CJ
WOOD J
PEARCE J
17 April 2015

Order of the Court

Appeal dismissed.

Serial No 7/2015

File No CCA 923/2014

SIMON JONATHON TAYLOR v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW CJ
17 April 2015

1. I agree that this appeal should be dismissed, for the reasons stated by Pearce J.  Having regard to the circumstances of the crimes in question and the circumstances of the offender, I think it can fairly be said that the penalties imposed by the learned sentencing judge were heavy, but not that they were too heavy.  The appellant used the internet to view child pornography for some 6½ years.  It was estimated that at least 300 different children were depicted in the pornographic images and videos found in his possession.  Some of the material depicted sexual activity between children, and both penetrative and non-penetrative activity between adults and children.  In the circumstances it cannot be said that the penalties imposed, separately or in the aggregate, taking into account the pre-release period in relation to the Commonwealth charge and the parole ineligibility period in relation to the State charge, were manifestly excessive in any respect.

   File No CCA 923/2014

SIMON JONATHON TAYLOR v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

WOOD J
17 April 2015

1. I agree with the reasons of Pearce J, and the additional comments made by Blow CJ.  The appeal should be dismissed.

   File No CCA 923/2014

SIMON JONATHON TAYLOR v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

PEARCE J
17 April 2015

1. The appellant, Simon Taylor, pleaded guilty to three charges concerning child pornography. Two charges are for using a carriage service to access child pornography material contrary to the Criminal Code 1995 (Cth), s 474.19(1). The third charge is for possessing child exploitation material contrary to the Criminal Code (Tas), s 130C. The appellant was sentenced by Estcourt J on 13 October 2014. For the Commonwealth crimes the appellant was sentenced to imprisonment for 15 months. His Honour ordered that the appellant be released after serving eight months of that sentence upon giving security by way of recognizance of $5,000 to be of good behaviour for two years. For the State crime the appellant was sentenced to imprisonment for 12 months to be served concurrently. His Honour ordered that the appellant not be eligible for parole until he has served eight months of that sentence.

2. The appellant appeals the sentences. There are two grounds:

   Ground 1     That the sentences were manifestly excessive; and

   Ground 2That "the learned sentencing judge erred in imposing a lengthier term of imprisonment in respect of the State count where the objective circumstances of the offending in relation to the said count were not more serious than those relating to the Commonwealth counts".

The circumstances of the offending

1. In February 2008 the Australian Federal Police ("the AFP") were notified by Interpol that an IP address assigned to the appellant's internet account had been used to access child pornography websites on 11 August 2007. An overseas travel clearance evaluation alert was raised. Nothing occurred until 30 August 2011 when the appellant attempted to travel to New Zealand. As a result of the alert, the appellant was selected by Customs at Melbourne Airport. An examination of an Apple laptop found in his luggage revealed it contained child pornography material. He was arrested. On the same day the appellant's home in Launceston was searched by Tasmania Police. Although the appellant was not there, the police spoke to him by phone and he directed them to a Toshiba laptop and 29 computer discs then found in his bedroom. Later, both computers were forensically examined. Each computer had been used to access and download child pornography material from the internet, some of which had been transferred to the discs. On the computers and discs was found 1,066 images, 354 videos and three text files constituting child exploitation material.

2. The material found by the police on the computers and discs is the only material that can be identified as having been accessed by the appellant, apart from 16 images the police were able to identify as having been accessed on the Apple laptop (and presumably not downloaded). The Crown is otherwise unable to quantify the amount or nature of child pornography material the appellant accessed in the 6½ year period between 1 March 2005 and 30 August 2011. However, the appellant admitted to police that he first viewed child pornography material in 2005. He had downloaded LimeWire, a peer-to-peer software program, to access and download child pornography images. The appellant told the police that after he viewed images he would download a "small proportion" onto his computer. He admitted that from 2005 he, "at times", viewed child pornography "up to once or twice a week", but the images mainly related to "nudists and naturalism". He had used the Toshiba computer since 1996 when his previous computer was damaged. The appellant acquired the Apple laptop in the later part of 2010. Because the appellant told the police that he had accessed and viewed ten child pornography images on a website the night before he left Tasmania to travel to New Zealand, the AFP analysed the websites accessed using the Apple laptop between 29 and 30 August 2011. The analysis disclosed that the appellant had viewed eight to ten images on the website over 3½ hours. A sample of the internet history retrieved from the Toshiba laptop for 17 and 18 September 2010 revealed regular use of the image source website and a high level of access to that site during that period.          

3. Most of the images and videos on the discs were downloaded on 21 February 2006, although some other downloads occurred between 6 January 2006 and 13 September 2010.

4. The child exploitation material in the appellant's possession was classified by the police according to the classes used by the English Court of Appeal in R v Oliver (2003) 1 Cr App R 28. Of the material found in the appellant's possession the great majority, 1,047 images and 308 videos, is classified as in the first, least serious, category, as images or movies depicting erotic posing by children with no sexual activity. There are nine images and 43 videos in the second category as images or movies depicting sexual activity between children, or solo masturbation by a child. There are two images and three videos in the third category being images or movies depicting non-penetrative sexual activity between adults and children, and eight images in the fourth category being images depicting penetrative sexual activity between adults and children. One level four image depicts full penile penetration by an adult male of the vagina of a female aged eight to ten years. The only material in the fifth, most serious category, depicting sadism or bestiality, is three text files. The text files were nevertheless described by counsel for the Crown as showing a "high level of depravity". They are stories describing vaginal, anal and oral rape, incest, bondage and torture of children. The learned sentencing judge was shown samples of the material said to be representative of each category, but which included in each case the "high water mark".

5. There are two counts of accessing child pornography material on the internet only because on 15 April 2010 the maximum penalty for breach of the Commonwealth Criminal Code, s 474.19(1), was increased from imprisonment for ten years to imprisonment for 15 years. One count concerns the period prior to the amendment and the other count concerns the period following it.

6. Not all of the discs contained child pornography. It was found on 15 of the 29 discs. There were 251 images and 353 videos. Some of the child pornography on the discs had been categorised into folders and subfolders. The police estimated that at least 300 different children were depicted in the child pornography.

7. The appellant denied gaining sexual gratification from the child pornography. He admitted to the police that he preferred to view females in their teens, found them attractive and liked to look at their bodies, but was more interested in children posing rather that the sexual nature of the images. Other images of children not amounting to child pornography were also found. Of the material of that description there were 1,052 images and 11 videos on the Apple laptop and 1,572 images and 369 videos on the discs. These images primarily depicted naked 12 to 16 year old females in a nudist or naturist setting not involving overt sexual acts or posing. Some formed part of a series which progressed to child pornography. The material found on the Apple laptop had a higher percentage of material of a "nudist or naturist" theme than the material on the discs.

Ground 2 – the effect of remissions

1. It is convenient to first deal with ground 2. It alleges a specific error. Although the ground of appeal is not explicitly in these terms, it asserts that the learned sentencing judge erred in imposing a lengthier term of imprisonment for the State charge of possessing child exploitation material when the objective circumstances of that offence were not more serious than the objective circumstances of the Commonwealth charges of accessing child pornography material on the internet. Ostensibly, the sentencing judge did not, as the ground asserts, impose a longer sentence for the State charge than the Commonwealth charges. The head sentence imposed by his Honour was 15 months for the Commonwealth crimes and 12 months for the State crime. However, the appellant argues that when the legislation affecting the recognizance release order, remissions and parole is taken into account the State sentence is effectively longer.

2. When an offender views child pornography material on the internet, downloads it, and retains possession of it for the purposes of personal gratification, keeping possession of the downloaded material is generally regarded as more serious criminal conduct than accessing it: R v Oliver (above) at [12]; Colbourn v The Queen [2009] TASSC 108 at [33]; R v Talbot [2009] TASSC 107 at [9]. In this case, however, counsel for the respondent submitted to the learned sentencing judge that the criminal conduct involved in the accessing charges was the more serious because of the length of the period, more than six years, over which it took place. This ground of appeal proceeds on the assumption that the submission is correct. The appellant contends that, although the learned sentencing judge did not say so, he treated the accessing charges as involving the more serious criminal conduct because they attracted a longer head sentence.

3. The Director of Corrective Services may grant a remission of the whole of any part of a prisoner's sentence pursuant to regulations: Corrections Act 1997, s 86. The Corrections Regulations 2008, reg 22 provide:

   "22    Remission

   (1) For the purpose of section 86 of the Act, a remission of the whole or any part of a prisoner's sentence is not to —

   (a)   exceed 3 months if the period of imprisonment to which the remission relates is imposed after 1 January 1994; and

   (b)   exceed one-third of the total period of imprisonment to which a prisoner is sentenced; and

   (c)   operate so as to reduce the total period of imprisonment served by a prisoner to less than 3 months.

   (2)   Remission of sentence is not to be granted to a prisoner who is —

   (a)   convicted of escape or attempted escape in respect of that part of the prisoner's sentence served up to and including the day on which the escape or attempted escape was made; or

   (b)   sentenced to a total period of imprisonment of 3 months or less.

   (3) The Director is not to grant a remission of sentence to a prisoner if that remission would operate to reduce the total period of imprisonment served by the prisoner in respect of that sentence to a period that is shorter than any non-parole period specified in an order made in respect of that prisoner under section 17(2)(b) of the Sentencing Act1997."

4. By the Sentencing Act 1997, s 17(2)(b), a sentencing court may order eligibility for parole by ordering that an offender "is not eligible for parole in respect of that sentence before the expiration of such period as is specified in the order". Under s 17(3), a parole ineligibility period must be no less than half of the head sentence.

5. The effect of these provisions is that the Director may grant remission of a sentence by three months or a third of the sentence, whichever is less, provided that a prisoner is not to serve less than a total period of imprisonment of three months. Remissions will not entitle a prisoner to release until after having served any non-parole period ordered under the Sentencing Act, s 17(2)(b). In the case of the sentences imposed on the appellant:

   ·     The shortest period after which the appellant could have been eligible for parole under the State sentence was six months: Sentencing Act, s 17(3). The learned sentencing judge ordered a non-parole period of eight months.

   ·     Regulation 22(3) means that the Director was not to grant remissions so as to reduce the sentence for the State crime to less than the non-parole period of eight months. Consequently, the appellant must serve at least eight months of the State sentence.

   ·     By the Crimes Act 1914 (Cth), s 19AA(1), Tasmanian remission laws apply to sentences of imprisonment imposed on federal prisoners: Frost v The Queen (2003) 11 Tas R 460. The appellant was entitled to any remissions granted under the State law as it applied to his Commonwealth sentence. This appeal was argued on the assumption that, in practice, the grant of remissions applies to the pre-release period and authorises the appellant's release before he has served eight months of the Commonwealth sentence, by up to a third of that period.

6. The complaint made by this ground is not directed at the Commonwealth sentence. The substance of the challenge is that, by ordering a non-parole period of eight months for the State sentence, the entitlement to remissions for the Commonwealth sentence is made futile, rendering the State sentence effectively longer for less serious criminal conduct. Although this may appear anomalous, the question for this Court is whether, in relation to the State sentence, a less severe sentence is warranted in law: Criminal Code, s402(4). In other words, does the imposition of the State sentence disclose error?

7. The remission system operates as an incentive for the encouragement and reward of good behaviour by prisoners while serving a sentence: Hoare v The Queen (1989) 167 CLR 348 at 351. As a matter of general principle, a court should not have regard to the possibility of remissions in fixing an appropriate sentence. A sentencing judge is to impose the sentence which is appropriate and proportionate to the gravity of the crime considered in light of its objective circumstances: Veen v The Queen [No 2] (1988) 164 CLR 465. The existence of a remission system is not, of itself, a circumstance justifying the increase in the head sentence: R v Paivinen (1985) 158 CLR 489 at 494; Hoare (above) at 354. These principles were applied by this Court in Hyland v The Queen A82/1996 [1996] TASSC 144). See in particular the judgments of Crawford J (as he then was) at [36]-[37] and Zeeman J at [78]-[79]. The grant of remissions is a matter for the executive arm of government in accordance with the regulations, which, since amending legislation which came into effect on 1 January 1994, have substantially limited the remissions which may be granted compared to those available prior to that date.

8. The High Court in Hoare (above) made clear, however, that it did not say that a judge must pay no regard at all to the availability (or unavailability) of remissions in determining the appropriate sentence in all the circumstances of a particular case. The Court gave as examples that it is permissible to take into account the unavailability of remissions for pre-trial custody and when determining the extent to which a head sentence should be reduced by some special factor. In this State, in Burke v The Queen [1983] Tas R 85, Cox J (as he then was) found that it was proper, when considering whether a sentence under appeal was manifestly excessive, to take into account, when determining the factual basis upon which a sentence is to be passed, the effect of remissions upon a sentence the prisoner still had to complete. In Hoare, the High Court also considered, at 355-356, whether a sentencing judge may be influenced by the operation of a remissions system in fixing a non-parole period. At 356 the Court said:

   "Both a remissions system and a parole system are ordinarily predicated upon the functioning of ordinary sentencing procedures and apply to excuse or release the prisoner from service of the full term of the sentence which is appropriate to his crime. There is no reason in principle why a sentencing judge should be precluded from taking account of the likely effect of remissions against the head sentence in fixing a non-parole period. As a practical matter, the fixing of an appropriate non-parole period may, in some circumstances, require that regard be paid to the likely effect of remissions upon the head sentence."

9. In my view, it would have been consistent with principle and policy for the learned sentencing judge to take into account the possibility of remissions on the Commonwealth sentence in determining the non-parole period for the State sentence. It is a circumstance which seems to me to be peculiar to when a court imposes a sentence for a federal crime for which a remission is available, and at the same time for a State crime for which remissions are not available because of the imposition of a non-parole period. However, the question for this Court is not whether his Honour would have been wrong to do so; it is whether he fell into error by failing to do so. I have concluded that he did not. That is so for a number of reasons.

10. I do not think it necessarily follows that, even if the practical effect of the sentences is that the appellant will immediately serve a lesser period under the Commonwealth sentence, it is to be regarded as a more lenient sentence for more serious criminal conduct. I do not regard this case as a significant departure, if it is a departure at all, from the general proposition that possession of child pornography material is more serious than accessing it. For much of the period relied on by the respondent as indicating the seriousness of the accessing charges, the level of accessing, and the nature of the material accessed, is difficult to determine. It is likely that much of the material the appellant accessed during the period fell short of constituting child pornography. In any event, the head sentence remains as a marker of the gravity of the conduct. Release on a recognizance is conditional. In the event that the recognizance is breached the appellant may be required to serve the balance of the term.

1. To my mind, error could only be established if it were necessary that the learned sentencing judge take the possibility of remissions for the Commonwealth sentence into account by adjusting the non-parole period downwards to take account of that possibility, and that he failed to do so. Firstly, it is not at all clear that his Honour did not take remissions into account. He said nothing about the matter, one way or the other. Secondly, the possible grant by the Director of remissions to the pre-release period of the Commonwealth sentence was one of many sentencing considerations his Honour could have taken into account and given such weight, if any, as his Honour saw fit. There is no reason to conclude that in determining the non-parole period his Honour did not apply established principle. In Director of Public Prosecutions v Harris [2013] TASCCA 5, Blow CJ said at [10]:

   "A parole ineligibility period should be the minimum period that the sentencing judge determines that justice requires the prisoner must serve in prison, having regard to all the circumstances: Power v R (1974) 131 CLR 623 at 629; Carr v R (2002) 11 Tas R 362 at [96]; Richman v Tasmania [2011] TASSC 18 at [47]".

2. It seems to me tolerably clear that in determining the non-parole period his Honour concluded that justice required that, taking all circumstances into account, the appellant should serve a minimum period of imprisonment of eight months. It was open to his Honour to tailor a sentence to the circumstances of this case, having in mind the total effect of all of the sentencing orders his Honour made across both the Commonwealth and State sentences. There is nothing to suggest that his Honour impermissibly increased the non-parole period for the State sentence to counteract the chance of remissions in respect of the Commonwealth sentence.

3. As has been pointed out in many cases, the appellant has no right to any remissions. Remissions are granted at the discretion of the Director. There could be no guarantee that the appellant would be granted the maximum, or any, remission: R v Maguire and Enos (1956) 40 Cr App R 92 at 94; Hoare at 354; Hyland at [26] and [77]. It may be that if the appellant behaves himself while serving the sentence he can expect to be granted the remissions potentially available, but that was not a matter about which his Honour was required to speculate when determining a non-parole period. It would otherwise have been necessary for his Honour to factor in possible legislative and executive variations in the grant or otherwise of remissions: Hyland at [38].

4. In my view no material error is disclosed. This ground of appeal should fail.

Ground 1 - is the sentence manifestly excessive?

1. His Honour was correct to impose separate sentences for the Commonwealth crimes and the State crime. There is no legislation which permits any other course. The combined effect of the sentences his Honour imposed was imprisonment for 15 months, eight months of which was to be served before conditional release.  

2. Sentences for child pornography offences were reviewed by this Court in DPP v Latham (2009) 19 Tas R 281; R v Talbot (above); R v Colbourn (above) and Buddle v The Queen [2011] TASCCA 11. In Latham, Evans J agreed with the principal judgment which was written by Porter J, to which I will refer again shortly. However, in his judgment, Evans J made remarks, with which I respectfully agree, which explain why such offences as these generally require the imposition of an immediate sentence of imprisonment. It is so principally for reasons of general deterrence. As his Honour pointed out, it is important that those who may be inclined to commit child pornography offences understand that imprisonment is the almost certain consequence. The increase in the maximum penalty introduced on 15 February 2010 for the federal offences reflects the seriousness with which such crimes are viewed by the Commonwealth legislature.

3. In DPP v Latham (above), Porter J reviewed the authorities and derived the following propositions, with which I respectfully agree:

   ·     the production of child pornography for dissemination involves exploitation and corruption of children;

   ·     persons with pederastic inclinations can be stimulated to commit such acts on reading the material or viewing the images;

   ·     the collection of pornographic material is likely to encourage those who produce it, for without any market, there is less incentive to make it;

   ·     collection of child pornography may also have the effect of normalising the activity, both in the minds of the participants and makers, and of any children to whom it may be shown;

   ·     widespread collection and distribution may also have the effect of desensitising all those involved in the making, distribution and consumption of the material.  This may lead to escalation in the gravity of the conduct depicted.

4. There have been various statements by this Court and other intermediate appellate courts in Australia which provide guidance in assessing the objective seriousness of possession and distribution of child pornography. In Latham, Porter J went on, at [34], to list relevant factors. That list has been subsequently approved in Talbot and Colbourn. I also agree with it. It reads:

   ·     the nature and content of the images, including the age of the children and the gravity of the activity portrayed — in particular, the degree of obvious physical harm or fear or distress in the victim;

   ·     the number of images or items of material;

   ·     whether mere possession is for the purpose of further distribution, and whether there will be any profit or benefit from the activity of the offender.  Actual profit or benefit will aggravate the offence, whilst absence of such profit or benefit is not mitigatory;

   ·     the level of personal interest in the material, as perhaps evidenced by the way in which any collection is organised on a computer;

   ·     whether the possession or distribution involves a risk of accidental discovery by innocent computer users.

5. A similar analysis was undertaken by the Victorian Court of Appeal in Director of Public Prosecutions (Cth) v D'Alessandro (2010) 26 VR 477, at [21]:

   "When construing and applying Commonwealth legislation, this Court follows principles of comity in according respect to the decisions of intermediate appellate courts of other jurisdictions concerning the same legislation. It is therefore worth recording that there seems to be unanimous support across the jurisdictions for a number of propositions. First, that the problem of child pornography is an international one. Secondly, that the prevalence and ready availability of pornographic material involving children, particularly on the internet, demands that general deterrence must be a paramount consideration. Thirdly, that those inclined to exploit children by involving them in the production of child pornography are encouraged by the fact that there is a market for it. Fourthly, that those who make up that market cannot escape responsibility for such exploitation. Fifthly, that limited weight must be given to an offender's prior good character. Sixthly, that a range of factors bear upon the objective seriousness of the offences to which the respondent in this case pleaded guilty. They include:

   (a) the nature and content of the pornographic material - including the age of the children and the gravity of the sexual activity portrayed;

   (b) the number of images or items of material possessed by the offender;

   (c) whether the possession or importation is for the purpose of sale or further distribution;

   (d) whether the offender will profit from the offence."

6. In New South Wales, in Minehan v The Queen (2010) 201 A Crim R 243, R A Hulme J, with whom Macfarlan JA and Johnson J agreed, while noting at [95] that individual cases may produce further matters, drew from the authorities the following propositions relevant to assessment of the objective seriousness of offences "involving the possession or dissemination/transmission of child pornography":

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

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

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

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

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

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

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

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

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

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

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

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

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

7. A number of aggravating factors were absent in this case:

   ·     the appellant had no contact with any abused child;

   ·     the appellant's activities were not undertaken with a view to profit or any material benefit;

   ·     the appellant did not pay for any of his child pornography material;

   ·     the appellant did not possess any such material with a view to providing it to anyone else, or making it available to anyone else;

   ·     there was little risk that the material would be seen or acquired by vulnerable persons or persons susceptible to act in some way as a result of seeing it.

8. In the case of the appellant's crimes the following circumstances, most of which I have already referred to earlier in these reasons, are also relevant. It was his interest in naturalism which initially led to the offending material. The vast majority of the pornographic images were in the least serious category and involved females between the ages of 12 to 16 years. The material in the worst category was stories and thus did not involve real children. It is also important to remember that the appellant did not provide the material to anyone else, or participate in chat rooms or other media where access and exchange of such material is discussed. Consequently, he is not charged with transmitting or making available child pornography, and in considering the sentence imposed on him the case is to be distinguished from cases involving such conduct.

9. The matters put in mitigation, and my comments as to some of them, are:

   ·     The appellant is now 54. He is married with two adult children. He has no prior convictions although that factor is of little weight in child pornography cases: Latham at [29].

   ·     He pleaded guilty and feels sorrow, guilt and shame - the learned sentencing judge was correct to reduce the sentence because of these factors.

   ·     He remains a citizen of New Zealand, where he was born, and is not an Australian citizen despite having lived in this country for about 30 years. He is at risk of deportation: Migration Act 1958 (Cth), s 201.

   ·     Throughout the period he has been in Australia he has been employed as a commercial helicopter pilot, first in northern Australia and then, since 2006, in Tasmania. At the time of sentence he managed a helicopter business. He is likely to lose his employment as a result of these crimes, which will also affect his ability to find alternative employment. There will be a financial impact upon him and his family. His wife is a teacher but did not work in Tasmania because her qualifications were not recognised.

   ·     He suffered financial loss as a result of having to sell the house he had purchased by borrowing a large sum, after his apprehension. The delay before he was charged caused him to mistakenly assume that the matter was not to proceed.

   ·     The appellant was diagnosed with chronic lymphocytic leukaemia/small cell lymphoma in 2008. His wife and his immediate family remain supportive of him. His son suffers from depression. The charges contributed in some part to a suicide attempt by his son, after he found out about them, and the appellant feels the burden of that.

   ·     Throughout his adult life he has suffered from episodes of depression and a mood disorder likely contributed to by his parents' separation when he was 12 and his exposure, after the separation, to his father's sexual relationships with teenage boys. He suffers from adjustment disorder arising from his current situation. A psychiatric report indicates that imprisonment will be damaging to the appellant's psychological health.

   ·     He has undertaken counselling and disconnected the internet at home.

   ·     The appellant has no sex drive as a result of his medical condition. His offending was not driven by sexual gratification. It is to be noted however that, whatever the appellant's motivation, by accessing and possessing the material he manifested a demand, and contributed to the market, for it.

10. The learned sentencing judge's sentencing comments include the following:

    "I take into account that the defendant had no contact with any of the children in the images.  He did not move beyond his voyeurism and there was never any risk of him behaving inappropriately towards others, or moving on to become a participant in the sort of abuse depicted in the images he accessed.  He did not create any of the child pornography.  He did not, on the material before me, pay for it or share it with anyone.  He did however store it and categorise it.  His criminal conduct did not involve chat rooms.  As I say, it is obvious from the material before me that the defendant has been of good character and has been well regarded.  However, in the case of child exploitation less weight is to be given to good character than is ordinarily the case because of the importance of general deterrence in order to prevent the abuse of children.  The possession of child exploitation material is a very serious crime.  As has been noted by other judges of this Court, children suffer appallingly as a result of the production of these images.  To be in possession of them, without more, contributes to a demand for them, and the demand perpetuates the abuse of children.  Relevant to sentencing are the number and nature and the content of the images and whether they were shared.  As I said, they were not in this case shared.  There were a great many images – many of them in the least serious category, but the nature and number of them and, in particular, the text files in level 5 are extremely worrying. 

    I accept the defendant's sorrow, guilt and shame.  The defendant is entitled to real credit in sentencing for that, and also for his plea of guilty.  He is entitled to a real discount in what otherwise might have been an appropriate term of imprisonment.  I am in no way suggesting that there is a tariff for this crime, or that it would be appropriate to apply it if there were, as opposed to using sentencing in other cases as a yardstick.  I do however have regard in settling on the length of an appropriate term of imprisonment to the sentencing practice of the judges of the Court over recent years in comparative cases; and to the fact that it is very clear that ordinarily such a case as the present requires an immediate sentence of imprisonment.  This is by no means the worst of cases, but it is certainly one of the more serious, in my view, particularly given the level 5 material.  The conduct occurred over 6½ years, and some 300 children suffered as a result of the production of these images.         "

11. The learned sentencing judge was, with respect, correct to conclude that the appellant's crimes demanded an immediate sentence of imprisonment. I think there is merit in the appellant's submission, the effect of which is that his Honour's remarks overstate some aspects of the objective seriousness of the appellant's crimes. Although his Honour commented that there were a "great many images", the number of images was not great compared to many other cases of this nature. His Honour noted that nature and number of the images, and the text files in particular, were "extremely worrying". There was, however, nothing about the nature and number of the images which called for a sentence of greater than usual severity. The overwhelming majority of it was in the least category of seriousness. It is also important to note that the text files, to which his Honour attributed particular attention in the passage just quoted, did not concern actual children: Traynor v McCullough (2011) 218 A Crim R 177 at [48]-[49]; Minehan v The Queen (above). Earlier in his remarks his Honour referred to "a relatively high level of organisation to [the appellant's] collection". I think that overstates the level of organisation in the material found. The level of organisation and categorisation was not very sophisticated. Most of the organising was done some years earlier. The level of organisation was not, to my mind, such as to make it a factor of particular significance. However, some differences of view about how his Honour treated some aspects of the relevant material should not divert this Court from the primary question. No specific error is relied on. An appeal on the ground that a sentence is manifestly excessive cannot succeed unless it is established that, taking into account all the factors relevant to sentence, the sentence is unreasonable or plainly unjust: Markarian v The Queen (2005) 228 CLR 357 at [25]. The sentence must be outside the range of sentences that could have been imposed such that the appellate court concludes there must have been some misapplication of principle even though where or how is not apparent from the statement of reasons: Hili v The Queen (2010) 242 CLR 520 at [59] and Wong v The Queen (2001) 207 CLR 584 at [58].

12. The submissions on behalf of the appellant under this ground were directed principally to the head sentences, but may also apply to the length of the non-parole period and the pre-release period. I have already referred to the principle to be applied by a sentencing judge in determining a non-parole period. A long parole ineligibility period may make a sentence manifestly excessive: Groenewege v Tasmania [2013] TASCCA 7 per Porter J at [56]–[59]. Similar principles apply to determination of the pre-release period for the federal offences: Power v The Queen (1974) 131 CLR 623; Bugmy v The Queen (1990) 169 CLR 525. In determining the pre-release period, subjective factors assume greater significance: Power at 628.

13. In Talbot and Colbourn, both decided in 2009, Blow J (as he then was) observed that in this jurisdiction there had been so few comparable cases that it could not be said that a sentencing tariff had been established. Counsel for both the appellant and the respondent provided the Court with examples of sentences imposed since 2009. These do little to assist. The sentences referred to range from short wholly suspended sentences of imprisonment to imprisonment for five years. The higher sentences usually involve not only possession of pornography, but also transmission, distribution or production of it. Counsel for the appellant referred to a smaller group of cases which involve mostly possession and accessing child pornography and which, it is submitted, demonstrate the imposition of less severe sentences for more serious conduct. However the sentences are not markedly lower, and there are examples of greater sentences in respect to both possessing and accessing child pornography. Great care is to be taken in comparison of individual cases. They provide, as the learned sentencing judge explained, a yardstick, but a range of legitimate sentencing outcomes is inevitable: Hili v The Queen (above) per Heydon J at [74]. Reasonable minds may differ: Everett v The Queen (1994) 181 CLR 295 per McHugh J at 306. Comparison of individual sentences is made more difficult because of variation in the factors relevant to the objective seriousness of the offending – the number of images, the gravity of the sexual activity portrayed, the age of the children depicted, the number of children depicted, the degree of organisation and, in respect to the accessing charge, the period over which the accessing took place. In some cases sentences are cumulative rather than, as in this case, concurrent and differing orders are made as to parole and recognizance release orders. In considering all of those matters and determining the sentence to be imposed, sentencing judges are to be "accorded a wide measure of latitude": Postiglione v The Queen (1997) 189 CLR 295 per Kirby J at 336. And as was said by Gaudron, Gummow and Hayne JJ in Wong v The Queen (above) at 605 [58]:

    "… appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons".

1. I think, having regard to the objective circumstances to which I have referred and the mitigating factors, that the total sentence imposed by the learned sentencing judge was a harsh one. I have reflected on whether, in all the circumstances, the imposition of a non-parole period of eight months for the State crime, when the minimum period was six months, made that sentence manifestly excessive. I have concluded however that neither sentence, taken individually, or having regard to the total effect, was so harsh as to be outside the range of sentences his Honour could have imposed, either as to the head sentence or the non-parole and pre-release periods. Manifest excess is, to me, not apparent. Accordingly, this ground of appeal should fail.

Result

1. In my view, neither ground of appeal is made out. I would dismiss the appeal.