Trinh v R
[2024] VSCA 61
•11 April 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2022 0185 |
| MARTIN TRINH | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | PRIEST, TAYLOR and KAYE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 18 March 2024 |
| DATE OF JUDGMENT: | 11 April 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 61 |
| JUDGMENT APPEALED FROM: | DPP v Trinh [2022] VCC 1404 (Judge Murphy) |
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CRIMINAL LAW – Appeal – Sentence – Possession and production of child abuse material – Use of a carriage service to transmit, solicit and access child abuse material – Use of a carriage service to engage in sexual activity with a person under the age of 16 years – Approach to sentencing offences with statutory minimum terms of imprisonment – Whether sentencing judge erred in approach to assessment of family hardship as sentencing consideration – Whether sentencing judge erred in rejecting Verdins limbs one and three – Whether sentence on using a carriage service to engage in sexual activity with a person under age of 16 years manifestly excessive – Leave to appeal granted – Appeal on manifest excess allowed.
Crimes Act1914 (Cth), ss 16A, 16AAA, 16AAC.
Hurt v The King; Delzotto v The King [2024] HCA 8 followed; R vVerdins (2007) 16 VR 269; Brown v The Queen (2020) 62 VR 491 discussed.
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| Counsel | |||
| Applicant: | Mr B Overend | ||
| Respondent: | Ms K Breckweg with Mr J Manning | ||
| Solicitors | |||
| Applicant: | Gallant Law | ||
| Respondent: | Mr S Bruckard PSM, Solicitor for Public Prosecutions (Cth) | ||
PRIEST JA:
I agree with Taylor JA, whose reasons for judgment I have had the considerable advantage of reading in draft.
TAYLOR JA:
Introduction and overview
On 17 December 2021 the applicant pleaded guilty to 16 charges involving the possession and production of child abuse material and the use of a carriage service to transmit, solicit and access child abuse material as well as to engage in sexual activity with a person under the age of 16 years. A further offence of transmitting indecent material was taken into account.[1]
[1]Pursuant to s 16BA of the Crimes Act 1914 (Cth) (‘Crimes Act’).
Following a plea on 10 June 2022, the applicant was sentenced on 21 July 2022 as follows:
| Charge on Indictment | Offence | Max Penalty | Sentence | Cumulation / Commencement |
| 1 | Use carriage service to cause child pornography to be transmitted to himself[2] | 15 years | 6 months | 21 July 2022 |
| 2 | Use carriage service to transmit indecent communication to a person under 16 years of age[3] | 7 years[4] | 12 months | 21 July 2022 |
| 3 | Use carriage service to solicit child pornography material[5] | 15 years | 6 months | 21 July 2022 |
| 4 | Use carriage service to solicit child abuse material[6] | 15 years | 6 months | 21 July 2022 |
| 5 | Use carriage service to solicit child abuse material | 15 years | 6 months | 21 July 2022 |
[2]Contrary to s 474.19(1) of the Criminal Code as in force prior to 21 September 2019. The Combatting Child Sexual Exploitation Legislation Amendment Act 2019 (Cth) repealed this offence provision and replaced it with the offence of using a carriage service to transmit child abuse material to himself contrary to s 474.22(1) of the Criminal Code, effective 21 September 2019.
[3]Contrary to s 474.27A(1) of the Criminal Code.
[4]The Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) increased the maximum penalty for this offence to 10 years’ imprisonment if committed on or after 23 June 2020.
[5]Contrary to s 474.19(1) of the Criminal Code as in force prior to 21 September 2019.
[6]Contrary to s 474.22(1) of the Criminal Code.
| 6 | Use carriage service to cause child abuse material to be transmitted to himself[7] | 15 years | 12 months | 21 July 2022 |
| 7 | Produce child abuse material[8] | 10 years | 10 months | 21 July 2022 |
| 8 | Use carriage service to cause child abuse material to be transmitted to himself | 15 years | 12 months | 21 July 2022 |
| 9 | Use carriage service to solicit child abuse material | 15 years | 12 months | 21 July 2022 |
| 10 | Use carriage service to cause child abuse material to be transmitted to himself | 15 years | 12 months | 21 July 2022 |
| 11 | Use carriage service to cause child abuse material to be transmitted to himself | 15 years | 9 months | 21 July 2022 |
| 12 | Engage in sexual activity with a person under 18 years of age using a carriage service[9] | 20 years | 6 years and 6 months | 21 July 2023 (To commence 12 months after all other sentences) |
| 13 | Use carriage service to solicit child abuse material | 15 years | 12 months | 21 July 2022 |
| 14 | Use carriage service to transmit child abuse material[10] | 15 years | 9 months | 21 July 2022 |
| 15 | Use carriage service to solicit child abuse material | 15 years | 9 months | 21 July 2022 |
| 16 | Possess or control child abuse material obtained or accessed using a carriage service[11] | 15 years | 12 months | 21 July 2022 |
| Total Effective Sentence: | 7 years and 6 months’ imprisonment | |||
| Non-Parole Period: | 3 years and 9 months | |||
| Pre-sentence Detention Declared: | 41 days | |||
| Section 6AAA Statement: | 10 years’ imprisonment with a non-parole period of 6 years | |||
| Other Relevant Orders: Pursuant to s 6F of the Sentencing Act 1991, the applicant was sentenced as a serious sexual offender in respect of Charge 7. Pursuant to s 34 of the Sex Offenders Registration Act 2004, the length of the reporting period is life. | ||||
[7]Contrary to s 474.22(1) of the Criminal Code.
[8]Contrary to s 51C(1) of the Crimes Act 1958.
[9]Contrary to s 474.25A(1) of the Criminal Code. This offence provision also carries a minimum penalty of 5 years’ imprisonment pursuant to s 16AAA of the Crimes Act.
[10]Contrary to s 474.22(1) of the Criminal Code.
[11]Contrary to s 474.22A(1) of the Criminal Code.
The applicant originally sought leave to appeal against sentence on the following grounds:
1.The learned sentencing judge erred in applying the approach adopted in Bahar v The Queen [2011] WASCA 249[12] which is ‘plainly wrong’.
2.In the alternative, the learned sentencing judge incorrectly applied Bahar.
3.The sentence imposed on Charge 12 and the order for cumulation attached to Charge 12 were manifestly excessive.
4.There was an error in the sentence imposed on all Commonwealth charges that arose from the applicant having been sentenced on the basis that family hardship was not relevant because it could only be relevant if it amounted to ‘exceptional circumstances’.
5. The learned sentencing judge erred by not applying Limbs 1 and 3 of Verdins.[13]
[12](2011) 255 FLR 80 (‘Bahar’).
[13]R v Verdins (2007) 16 VR 240; [2007] VSCA 102 (‘Verdins’).
In light of the recent High Court decision in Hurt v The King; Delzotto v The King[14] the applicant concedes that the first ground cannot succeed. The second ground is maintained.
[14][2024] HCA 8 (‘Hurt’).
For the reasons that follow ground 3 should succeed. Accordingly I would grant leave to appeal, allow the appeal and re-sentence the applicant as detailed below.
Circumstances of the offending
Over a 21 month period the applicant, then aged between 18 and 20 years of age, used various social media platforms to interact with 11 girls, all aged between 12 and 16 years.
Complainant 1
In February 2019 the applicant used Instagram to contact Complainant 1, a 13 year old girl. After complimenting her, he asked for a photograph of her face. Upon receipt of a photo of the face of a 13 year old girl, the applicant then requested a photograph of her breasts. Complainant 1 sent a photograph of her breasts that did not include her face (charge 1). The applicant threatened to disseminate the image of her breasts to her friends and family if she did not send another photo that included both her breasts and her face. During the conversation, the applicant transmitted an image of a male holding his penis in his hand to Complainant 1 (charge 2[15]).
Complainant 2
[15]Charge 2 was a rolled-up charge.
On the same day the applicant used Instagram to contact Complainant 2, a 15 year old girl. He told her he had seen her in the school library and used the names of other students as his own when she asked who he was. He sent her a photograph of herself along with the text ‘send me your boobs’ (charge 3). Complainant 2 refused. The applicant persisted in his request over the next few days. During the exchange, the applicant also sent Complainant 2 a photo of himself lying naked on a bed with his penis exposed (charge 2).
Complainant 3
In December 2019 the applicant received a photograph of Complainant 3, a 12 year old girl, and her friend, and thereafter over several days used a Snapchat account to make repeated requests to see her breasts (charge 4). Complainant 3 did not comply. During the conversation the applicant also transmitted sexualised communications (charge 2).
Complainant 4
In January 2020 the applicant used the same Snapchat account to solicit child abuse material from Complainant 4, a 13 year old girl, after receiving an image of her in her underwear (charge 5). During the conversation the applicant sent Complainant 4 two images of himself lying in bed naked with his penis exposed (charge 2).
Complainants 5, 6 and 7
In June and July 2020 the applicant used multiple Instagram accounts to tell Complainant 5 that his name was Josh and he was aged 15 years. Complainant 5 told him that she was aged 12 years. The applicant repeatedly requested sexualised images from Complainant 5 and threatened that if she did not send them, he would ‘find her and get her’. The applicant sought material in which she touched herself. Complainant 5 sent the applicant two videos (charge 6). The applicant took screenshots of the material and screen recorded the video transmitted (charge 7[16]). Complainant 5 blocked the account used by the applicant and other accounts he subsequently used in attempting further contact.
[16]Charge 7 was a rolled up charge.
In September 2020 the applicant used an Instagram account to contact Complainant 6, a 13 year old girl and friend of Complainant 5. He said he was 16 years of age and asked her to get Complaint 5 to unblock him. When Complainant 6 asked why, the applicant said that Complainant 5 knew why. Complainant 6, who had told the applicant that she was 13 years old, also told him that he was scary and blocked him. Just over one month later the applicant used a different Instagram account to contact Complainant 6 to again request that she get Complainant 5 to unblock him. The applicant then transmitted to her a video of Complainant 5 naked in a bath that he had caused Complainant 5 to make and transmit to him in June/July 2020 (charge 14[17]). Complainant 6 blocked the applicant. A few seconds later he used another Instagram account to send a message to Complainant 6, ‘u really want me to leak her nudes? Tell her to unblock or she’ll be ruined’. During the conversation the applicant made repeated requests for a picture of Complainant 6 depicting her bra and face.
[17]Charge 14 was a rolled up charge.
In October 2020 the applicant used Instagram to transmit the same video of Complainant 5 naked in a bath to Complainant 7, a 12 year old girl and friend of both Complainants 5 and 6, asking, ‘Should I leak her?’ (Charge 14). When Complainant 7 replied no, the applicant said that if she did not want him to do so, she should send photos of herself and tell Complainant 5 to unblock him (charge 15).
Complainant 8
Between July and October 2020 the applicant used Facebook Messenger to cause Complainant 8, a 15 year old girl, to transmit 27 images and 12 videos of child abuse material to him (charge 8). He gave her explicit directions as to what was to be depicted. On 24 October 2020, during a 34 minute video call, the applicant instructed Complainant 8 to perform sexual acts in his presence. He watched her masturbate and gave her instructions about using objects with which to apparently penetrate herself (charge 12). The applicant captured a screen recording of the video call (charge 7).
Complainant 9
In August 2020 the applicant used an Instagram account to engage in an hour long conversation with Complainant 9, a 13 year old girl. He requested that she send explicit photographs of herself (charge 9) and used explicit sexualised communications (charge 2). When the complainant unfollowed the applicant on Instagram, he used a different account to contact her and ask for a photograph.
Complainant 10
The applicant used Instagram to tell Complainant 10, a 13 year old girl, that he was a 15 or 16 year old American and to ask her for explicit images of herself. When she refused, the applicant threatened to contact her friends to ask them for such images. Complainant 10 sent the applicant three images and one video of child abuse material (charge 10). He took 11 screenshots of the images as well as videos of the material sent (charge 7).
Complainant 11
The applicant used a Snapchat account to contact Complainant 11, a 16 year old girl, and tell her he was 17 or 18 years old and from Australia. Complainant 11 transmitted to him an image of herself naked in a bathroom mirror (charge 11). The applicant threatened to leak the image if she did not send more. Complainant 11 then sent a video of herself performing a sex act. Over the next weeks the applicant requested more images and videos and sent screenshots of Complainant 11’s previous transmitted video (charge 7) threatening that he would leak them if he did not receive more.
Arrest
On 23 November 2020 the applicant’s electronic devices were seized pursuant to warrant. They were found to contain two Category 1 and 713 Category 2 child abuse material files (charge 16). The applicant was arrested and interviewed. He admitted using various Instagram accounts to contact girls aged between 13 and 18 years and ask for nude photos. He also admitted to ‘blackmailing’ Complainant 5. He said that he did not know Complainants 6 and 7, but knew they were friends with Complainant 5.
Sentencing Reasons
The judge commenced his sentencing reasons[18] by noting the maximum sentences for the offences and the mandatory minimum sentence with respect to charge 12.[19] After detailing the circumstances of the offending[20] the judge next considered the seriousness of the offending.
[18]DPP v Trinh [2022] VCC 1404 (‘Reasons’).
[19]Reasons, [3].
[20]Reasons, [4]-[27].
Dealing first with the carriage services offending (charges 1-6, 8-11, 13-15 and item 1 of charge 2), the judge noted that as a whole it was a ‘serious attempt’ to obtain child abuse materials from young girls and to engage in sexualised communications with them. The conduct was determined, involved threats and the use of false identities.[21]
[21]Reasons, [28].
Next, with respect to the production of child abuse material (charge 7), the judge noted that once the material was produced by the complainants, the applicant was in a position to capture and distribute it.[22]
[22]Reasons, [29].
The judge said that the offence of engaging in sexual activity with a person under 16 (charge 12) was the most serious charge.[23] It involved text-based instructions during a video call in which the applicant was directing the performance of sexual acts including what appeared to be penetration. That the applicant produced a video of the event (charge 7) aggravated the offending. [24]
[23]Reasons, [41].
[24]Reasons, [31], [41].
With respect to the possession or control of child abuse material, the judge noted that the two Category 1 items located on the applicant’s electronic devices were videos, both depicting sexual activity, one by an 8 year old female and the other by an 11 year old female. Of the 713 Category 2 files, 251 were unique. The majority were images and video files sent by the complainants. The material did include explicit images of a 13 year old girl and two short videos depicting 14 and 15 year old girls engaged in sexual acts with adults. The judge found the number and content of the files to have a ‘level of seriousness’.[25]
[25]Reasons, [32]-[35].
Overall, the judge found the offending to be ‘very serious’. It occurred on an episodic basis over 20 months, involved 11 separate complainants and seven different types of criminality.[26] The applicant was the instigator of the online contact and gave false ages and names to facilitate some of the communications. He was involved in blackmail type threats which, on several occasions, resulted in further material being sent.[27]
[26]Reasons, [36].
[27]Reasons, [37].
The judge recorded the submission made on behalf of the applicant that his overall offending was in the ‘mid-range of seriousness’ because it lacked any real sophistication apart from the use of false names and multiple accounts. Further, the applicant was just over the age of 18 when the offending commenced and there was a relatively narrow age differential between him and the complainants.[28]
[28]Reasons, [42].
Next the judge detailed the personal circumstances of the applicant.[29] The applicant is the second eldest in a sibship of four and the only boy. Both his parents were born overseas and arrived in Australia as young adults. His father speaks some English and has worked in factory jobs. He has problematic gambling and alcoholism and he sexually abused the applicant when the latter was about 10 years of age. The applicant’s mother does not speak English and has previously been in receipt of Jobseeker payments.[30] The applicant experienced bullying at school in Years 7 and 8, at which time he suffered anxiety and depression and made a suicide attempt by jumping off the roof of a building which resulted in a broken leg. During the period in which he should have been in Years 8 to 10, the applicant stayed at home and spent his time playing computer games and masturbating to pornography. When he returned and resumed school, his former peer group had advanced to university, rendering the applicant lonely and disengaged. He left school before completing Year 12 and thereafter obtained work as a forklift operator. The applicant lived in a rented flat with his father and provided funds to his mother.
[29]Reasons, [46]-[51].
[30]Reasons, [47].
The judge said that he did not accept the submission that the impact of any sentence of imprisonment on the applicant’s ability to support his mother would constitute family hardship amounting to exceptional circumstances, but accorded credit to him for being in the workforce and providing financial support to his mother.[31]
[31]Reasons, [52].
Next the judge rejected the submission that notwithstanding the mandatory minimum sentence of five years’ imprisonment applicable to charge 12, the applicant’s youth and previous good character were such that a sentence allowing for his immediate release upon recognisance was within range.[32]
[32]Reasons, [53]-[54], [66].
With reference to Bahar and R v Delzotto[33] the judge stated that statutory minimum and maximum sentences were ‘guideposts’ and that the minimum sentence would only be available for cases falling at the bottom of the range once all relevant matters had been synthesised.[34] The judge detailed a number of objective and subjective factors as to why the applicant did not fall within that range. The conduct the subject of charge 12 involved ‘effective grooming’ of Complainant 8 and the nature of the sexual activity involved could not be properly characterised as offending at the bottom of the range.[35] The applicant’s plea of guilty and cooperation with authorities were given weight, as was the relatively low age differential between him and Complainant 8.[36]
[33](2022) 298 A Crim R 483; [2022] NSWCCA 117.
[34]Reasons, [54].
[35]Reasons, [55].
[36]Reasons, [55]-[56].
With respect to all offending and the evidence of Peter Hanley, psychologist, the judge considered the applicant’s immaturity and trauma related anxiety. Mr Hanley was of the view that the applicant was of above average risk for sexual recidivism, but did note that the applicant acknowledged his need for assistance.[37] The judge concluded that the applicant’s childhood sexual abuse contributed to his premature sexualisation and his immaturity provided something of an explanation for his offending, however he did not accept that the diagnosis of anxiety or his own experience of sexual abuse led to any significant reduction in moral capability. The judge did accept that Verdins principles 5 and 6 were engaged.[38]
[37]Reasons, [57]-[58].
[38]Reasons, [59].
The judge regarded the applicant as having good prospects of rehabilitation, noting the applicant’s work ethic – and Mr Hanley’s opinion that work was a protective factor, his financial support of his mother, that he had sought psychological assistance at his own expense, had expressed remorse and demonstrated insight to a school friend and had no prior convictions.[39] Delay was found to be a significant matter in the applicant’s favour,[40] as was the effect of the COVID-19 pandemic on custodial conditions.[41]
[39]Reasons, [61]-[63].
[40]Reasons, [64].
[41]Reasons, [65].
General deterrence was found to be ‘very salient’ notwithstanding the applicant’s immaturity.[42] The judge rejected a submission that Totaan v R[43] was authority for the proposition that no single consideration in s 16A of the Crimes Act should be given primacy. The Judge stated that he had considered all the matters in s 16A and gave general deterrence ‘prominence’ because of the nature of the offending, the presumption of harm to the premature sexualisation of children and the interests of the community in protecting children from such harm. That approach was said to be confirmed by intermediate appellate court decisions.[44]
[42]Reasons, [60].
[43](2022) 365 FLR 69; [2022] NSWCCA 75 (Bell CJ, Gleeson JA and Harrison, Adamson and Dhanji JJ) (‘Totaan’).
[44]Reasons, [67]-[70].
The judge found that notwithstanding s 19(5) of the Crimes Act, in order to avoid a disproportionate and crushing sentence, the sentences for charges 8 to 16 should not be served cumulatively on any earlier sentences imposed.[45] The applicant was sentenced on charge 7 as a serious sexual offender, but did not receive a disproportionate term of imprisonment on that charge.[46] Thereby the judge said he had constructed individual sentences and a total effective sentence to ensure, pursuant to s 19(6) of the Crimes Act that he imposed a sentence of the appropriate severity.[47]
[45]Reasons, [71]-[72].
[46]Reasons, [73].
[47]Reasons, [74].
Proposed ground 2 – statutory minimum term of imprisonment
Applicant’s contentions
The applicant argues that the correct approach for an offence which, by virtue of s 16AAA of the Crimes Act attracts a statutory minimum period of imprisonment, is a staged one. A sentencing court may, pursuant to s 16AAC(2), impose a sentence of imprisonment of less than the statutory minimum if it considers it appropriate to do so because a person has pleaded guilty and/or has cooperated with law enforcement agencies in the investigation of the offence or of a Commonwealth child sex offence.
That means that a sentencing judge must first consider all relevant sentencing factors – including the statutory minimum and maximum penalties but excluding a plea of guilty and co-operation – to arrive at a prima facie sentence. For charge 12 (a s 474.25A(1) Criminal Code offence) anything other than a ‘least worst possible case’ would warrant a sentence above the statutory minimum of five years’ imprisonment. The judge must then consider the plea and co-operation which, pursuant to s 16AAC(3) would enable a reduction of up to 50%. In this case that means that the applicant could and should have received a sentence that did not exceed three years’ imprisonment and allowed for his immediate release upon a recognisance release order.
The applicant argues that instead, the judge synthesised all relevant s 16A Crimes Act sentencing factors – including the maximum and minimum ‘guideposts’ as well as the applicant’s plea of guilty and cooperation – and, having then concluded that the applicant’s offending was not ‘at the bottom of the range’ sentenced him to six years and six months’ imprisonment. This had the effect of ‘compressing’ the sentencing range and it denied the applicant the full benefit of his plea and cooperation.
Respondent’s submissions
The respondent argued that there was no error in the judge’s approach. The effect of Hurt is that there is a range of sentences between the statutory maximum and minimum. Those yardsticks are to be considered along with all other sentencing factors – including a plea of guilty and co-operation. The effect of s 16AAC(2) is that a judge, having arrived at a sentence must then consider if the effect of a person’s plea and/or co-operation has been adequately reflected in the sentence arrived at. Only where the answer to that question is negative does the section allow a judge to impose a sentence of imprisonment below the statutory minimum using the formulae in s 16AAC(3).
In the instant case the judge made no error as, having made an assessment of the objective seriousness of the offending and the matters personal to the applicant, the effect of his plea and limited cooperation was adequately reflected in a sentence above the statutory minimum.
Analysis
Following Hurt, it is beyond doubt that the correct approach to statutory minimum sentences[48] is the ‘double function’ approach. That is, the minimum sentence restricts sentencing power to the minimum period of imprisonment, subject to the exceptions, and provides a yardstick representing ‘the least worst possible case warranting imprisonment against which the case before the court at the time can be measured’[49] or ‘the offence in the least serious circumstances’.[50] Thereby the statutory minimum operates to increase the appropriate term of imprisonment generally for that offence.[51]
[48]The statutory minimum in Hurt arose under s 16AAB(2) of the Crimes Act – which deals with minimum periods of imprisonment for certain offences for second or subsequent Commonwealth child sexual abuse offenders. There is no difference as to the approach to minimum sentences as between ss 16AAA and 16AAB(2).
[49]Hurt, [39] (Gageler CJ and Jagot J).
[50]Hurt, [54] (Edelman, Steward and Gleeson JJ).
[51]Hurt, [43] (Gageler CJ and Jagot J).
Nonetheless, in very limited circumstances, where an adult[52] falls to be sentenced for an offence which attracts a minimum term, sub-section 16AAC(2) of the Crimes Act allows a court to impose a sentence of imprisonment of less than the prescribed minimum. Those circumstances arise ‘only if the court considers it appropriate’ because that person has pleaded guilty or cooperated with law enforcement agencies or both. Sub-section 16AAC(3) then prescribes the manner in which any such reduction is to be made. For either a plea of guilty or cooperation, the court may reduce the sentence by an amount that is up to 25% of the prescribed minimum.[53] If both factors are operative, the court may reduce the sentence by an amount that is up to 50% of the prescribed minimum.[54]
[52]Crimes Act, s16AAC(1).
[53]Crimes Act, s 16AAC(3)(a) and (b).
[54]Crimes Act, s 16AAC(3)(c).
It follows that the reductions available for a plea of guilty and/or cooperation with law enforcement agencies do not automatically result in a sentence below the statutory minimum. A plea of guilty and cooperation are matters which if ‘relevant and known to the court’ must always be taken into account in passing sentence ‘of an order that is of a severity appropriate in all the circumstances’[55] pursuant to paragraphs 16A(2)(g) and 16A(2)(h) of the Crimes Act respectively. As explained by Gageler CJ and Jagot J in Hurt:
the reduction in s 16AAC(2) and (3) is available to all offenders who have pleaded guilty or who have cooperated with law enforcement agencies whether that reduction would decrease the sentence below the statutory minimum or not.[56]
[55]Crimes Act, s 16A(1).
[56]Hurt, [39].
Thus, as stated by Edelman, Steward and Gleeson JJ:
The exceptional circumstances in which a discount can lead to a sentence of imprisonment below the minimum prescribed sentence do not detract from the role of the minimum sentence as a yardstick. Rather, the process contemplated by s 16AAC reinforces the yardstick role of the minimum sentence. The discretion in s 16AAC(2) applies where it is ‘appropriate to reduce the sentence’, implying that a legitimate procedure will involve determining a prima facie sentence with the use of the prescribed minimum sentence as a yardstick, prior to considering the discount. The subsequent and transparent consideration of the discounts in s 16A(2)(g) (plea of guilty) and s 16A(2)(h) (co-operation with law enforcement agencies) reinforces the utilitarian goals underlying those considerations.[57]
[57]Hurt, [104].
In other words, an offender who has neither pleaded guilty nor cooperated in the relevant sense cannot receive a sentence that is less than the statutory minimum. Because of the practical benefits to the legal system of an offender pleading guilty and/or assisting authorities in the investigation of their own offending or child sexual offending generally, an offender who has done one or both of those things may, but not must, receive a sentence less than the statutory minimum. The sentencing process requires the judge to determine a prima facie sentence – which involves (but is not limited to) consideration of the offending measured against the yardstick minimum term which is for the ‘least worst possible case’ deserving of imprisonment – and then to overtly consider whether the fact and quality of either the plea or cooperation or both renders it ‘appropriate’ in all the circumstances to impose a sentence less than the prescribed minimum. This does not involve ‘double counting’ of a guilty plea and/or cooperation. Rather, it requires a sentencing judge to separately and expressly consider whether the instinctive synthesis of all relevant sentencing considerations has given adequate expression to those matters if the sentence remains at or above the statutory minimum. In all cases an offender who has pleaded guilty and/or cooperated with law enforcement agencies will receive a benefit for the plea and cooperation. In only some cases will that benefit extend to a sentence of imprisonment of less than the minimum term.
In the instant case the judge said:
In a comprehensive plea, your counsel submitted that notwithstanding the mandatory head sentence of minimum five years for Charge 12, considerations of parsimony, the circumstances of the offences and your youth and previous good character were such that a sentence that allowed your immediate release upon recognisance was within range.
I am unable to accept that submission. As discussed in cases such as Bahar v The Queen [2011] WASCA 249 the statutory minimum sentence and the maximum sentence are to be seen as guide posts for the imposition of a just sentence. As submitted by the learned prosecutor, on the authority of Bahar, which was recently followed in the case of R v Delzotto [2022] NSWCCA 117, the mandatory head sentence for Charge 12 requires that after synthesising all the relevant considerations under s 16A of the Crimes Act, including a plea of guilty and any cooperation with the authorities, the minimum sentence would only be available for cases at the bottom of the range.
This is not such a case. Given the seriousness of the conduct in relation to Charge 12, your prior effective grooming of the complainant which goes to your moral culpability, and the nature of the sexual activity which the complainant engaged in at your instigation this cannot be characterised as offending at the bottom of the range. In fixing a sentence for Charge 12 I do take into account your plea of guilty. I also give some minor weight to your cooperation with the authorities admitting the offending in the record of interview and providing passwords.[58]
[58]Reasons, [53]-[55].
The judge did not have the benefit of Hurt at the time of sentencing. It must be observed that a minimum sentence being available for ‘cases at the bottom of the range’, as expressed by the judge, and ‘the least worst possible case warranting imprisonment against which the case before the court at the time can be measured’[59] or ‘the offence in the least serious circumstances’[60], as expressed by the High Court in Hurt are not synonymous.
[59]Hurt, [39] (Gageler CJ and Jagot J).
[60]Hurt, [54] (Edelman, Steward and Gleeson JJ).
Nonetheless, I understand the judge to say that considering all the relevant sentencing factors, including the yardstick of the minimum term, his overt consideration of the applicant’s plea of guilty and limited cooperation did not lead him to the view that a sentence less than the minimum term was ‘appropriate’, primarily because the offending was objectively too serious. The applicant still received the benefit of the s 16AAC(2)(a) and (b) discount – that is the mitigatory effect of his plea and cooperation – but in all the circumstances of the case, that benefit was sufficiently effected without imposing a sentence of less than the minimum term.
It follows that in so far as proposed ground 2 is directed towards the methodology of the judge in passing sentence on charge 12, it must fail.
It is convenient to consider proposed grounds 4 and 5 before returning to proposed ground 3.
Proposed ground 4 – family hardship
Applicant’s contentions
The applicant submits that the judge misunderstood his submission concerning family hardship in the event of his imprisonment and, further, misapplied s 16A(2)(p) of the Crimes Act in finding, contrary to Totaan, that family hardship was relevant only if it amounted to exceptional circumstances.
Respondent’s submissions
The respondent submits that while the judge may have mis-stated the applicant’s submission on the issue of family hardship, the Reasons demonstrate that the judge was aware of and applied Totaan in consideration of the issue.
The respondent further submits that even if error is established, no different sentences should be imposed as the hardship involved is ‘predictable’ and ‘not uncommon’ and thereby of negligible weight in the sentencing exercise.
Analysis
During the hearing of the plea the applicant submitted that by his stable employment and income he had been a significant financial support to his mother. The loss of that support by his imprisonment was argued to be ‘modest hardship’.
In his Reasons the judge said that it had been submitted on the applicant’s behalf that his inability to support his mother ‘would amount to family hardship amounting to exceptional circumstances’.[61] The judge rejected that submission but gave the applicant ‘credit for being in the workforce and thus, for providing financial support’ to his mother.[62]
[61]Reasons, [52].
[62]Ibid.
Later in his Reasons the judge said:
In sentencing you I am required to have regard to the matters set out in s 16A of the Crimes Act and I do so. In submissions your counsel submitted that the recent case of Totaan v R [2022] NSWCCA 75 is authority for the proposition that the structure of s 16A is such that no one consideration set out therein has primacy. The comments in Totaan were uttered in the context of the issue as to whether taking into account the impact of family hardship required as a matter of a common law approach to sentencing, exceptional circumstances. It is clear that such a gloss, certainly in relation to family hardship requiring exceptional circumstances, cannot be sustained. This is confirmed in the recent decision in Mohamed v The Queen [2022] VSCA 136 referred to by the prosecution.[63]
[63]Reasons, [67].
Plainly the judge misdescribed the submission made to him concerning the degree of family hardship that would arise as a result of the applicant’s incarceration. That said, it is clear that the judge did not approach his assessment of family hardship in s 16A(2)(p) on the basis that it was relevant only if the circumstances were exceptional. The judge referred to both Totaan and Mohamed and expressly gave the applicant ‘credit’ for having been in the workforce and providing financial support to his mother. Implicit in that ‘credit’ is the judge’s acceptance that the absence of such support would engender ‘modest’ hardship, as actually submitted, but not exceptional hardship as the judge misapprehended the submission.
Proposed ground 4 must fail.
Proposed ground 5 – Verdins limbs 1 and 3
Applicant’s contentions
The applicant submits that ‘although not the strongest’ evidence, sufficient causal nexus was demonstrated between the applicant’s mental disorder and his offending such that there should have been a moderate reduction in the assessment of his moral culpability and also a tempering of the weight given to general deterrence.
Respondent’s submissions
The respondent submits that the judge did not err in finding that limbs 1 and 3 of Verdins did not apply as the psychological evidence did not establish the requisite causal connection.
Analysis
This Court in Brown v The Queen[64] emphasised the requirement for ‘evidence-based decision-making’[65] when Verdins issues arise. That decision-making involves ‘a rigorous evaluation of the evidence’[66]:
What the sentencing judge needs is not a diagnostic label but a clear, well-founded expert opinion as to the nature and extent of the offender’s impairment of mental functioning and, so far as it can be assessed, of its likely impact on the offender at the time of the offending and/or in the foreseeable future.[67]
[64](2020) 62 VR 491; [2020] VSCA 212 (Maxwell P, Niall, T Forrest, Emerton and Osborn JJA) (‘Brown’).
[65]Brown, [61].
[66]DPP v O’Neill (2015) 47 VR 395, 412; [2015] VSCA 325, [68] (Warren CJ, Redlich and Kaye JJA).
[67]Brown, [61].
In this case evidence of the causal link was weak indeed.
Simon Candlish, psychologist, prepared one major report on behalf of the applicant. In it he detailed the history obtained from the applicant and described his psychometric testing results. The applicant was considered to meet the criteria for Social Anxiety Disorder and Hebephilia. It is possible that he also meets the criteria for Paedophilic Disorder and has ‘emerging characterological issues’. Mr Candlish said that the anxiety disorder and characterological issues contributed to lowered mood and dysfunctional coping strategies ‘such as avoidant behaviour, the use of sexual stimulation and climax to regulate mood and social withdrawal’. Mr Candlish opined that the applicant’s:
… anxiety disorder appears relevant in having predisposed [the applicant] towards social withdrawal, low mood and reliance on forms of stimulation to regulate his internal state. Reliance on sexual arousal and masturbation represent such a form of dysfunctional coping. His sexual abuse as a child has led to premature sexualisation, making him much more susceptible towards reliance on sexual stimulation as a form of coping. His sexual abuse might have contributed to the development of deviant sexual scripts. His anxiety disorder has undermined his ability to pursue age-appropriate relationships and to develop functional coping skills.
Mr Candlish was also of the opinion that the applicant has ‘some capacity to manage his deviant interests’ given that he had not further offended since being detected in November 2020.
Peter Hanley, psychologist, in his report said that the applicant’s psychometric testing results:
… pointed to prominent trauma-related anxiety, and significant personality dysfunction characterised by schizoid and antisocial traits. Features of borderline and schizotypal personality disorder were also present. His psychometric profile suggested that [the applicant] is an emotionally constricted, socially disconnected individual prone to ‘act out’ his emotions in impulsive and inconsiderate ways.
Mr Hanley also said:
[The applicant] described his offending behaviour in an unfiltered manner. He told me that he had chosen to engage with younger girls over time because ‘they were easier to manipulate and control’. He said he had become obsessed with acquiring images and videos of the girls and described obtaining the material as ‘like a trophy’. He told me that he enjoyed the anonymity of the internet because it allowed him to avoid getting into trouble. [The applicant] expressed a sexual attraction to females between 12 and 18 years of age.
When this evidence is ‘rigorously evaluated’, the causal connection between the applicant’s anxiety disorder and his offending is nothing more than tenuous. It falls well short of establishing the requisite causal nexus between that disorder and the criminal conduct constituting the offending.
Proposed ground 5 must fail.
Proposed ground 3 – manifest excess
Applicant’s contentions
The applicant submits that the sentence imposed on charge 12 and the order for cumulation attached to it were manifestly excessive. It is argued that the judge gave insufficient weight to the applicant’s youth, antecedents and personal circumstances as well as his early plea of guilty, cooperation, psychological condition, remorse and prospects for rehabilitation. It is further argued that the judge gave too much weight to general deterrence.
Respondent’s submissions
The respondent submits that given the objective seriousness of the offending, the sentence imposed on charge 12 was wholly within the range available to the judge. The sentence imposed was greater than the statutory minimum sentence by only 18 months. That indicates the judge gave appropriate weight to all matters upon which the applicant could rely in mitigation of sentence.
Analysis
A ground of manifest excess will succeed only if an applicant can demonstrate that something must have gone obviously, plainly or badly wrong in the exercise of the sentencing discretion.25F[68] The question is whether the sentence imposed was wholly outside the range of sentencing options available to the judge.26F[69]
[68]Ayol v The Queen [2014] VSCA 151, [30] (Maxwell P), citing Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
[69]R v Abbott (2007) 170 A Crim R 306, 309–10 [13]–[15] (Maxwell P, Eames JA agreeing at 312 [22], Habersberger AJA agreeing at 312 [23]); [2007] VSCA 32.
There can be no doubt that the charge 12 offending was very serious indeed. As found by the judge, the applicant effectively groomed Complainant 8 by causing her to transmit to him child abuse material over a three month period. He then, over 34 minutes, directed her to perform sex acts – apparently including penetration with multiple objects. He did so for his own selfish sexual gratification and without regard to the harm caused to the complainant. He also captured that performance on video (albeit that that act is the subject of charge 7).
The Legislature has made plain the seriousness of such offending, not least by the imposition of the yardsticks of the minimum and maximum penalties. Section 474.25A(1) of the Criminal Code is part of a suite of offence provisions aimed to protect children from the sexual exploitation and abuse so easily accomplished by anonymous (adult) offenders online. The applicant himself recognised that younger girls are easier to control and manipulate. It follows that the paramount sentencing consideration for such offences is general deterrence.[70]
[70]The Queen v Leask (2013) 236 A Crim R 1; [2013] WASCA 243, [92] (Mazza JA, with whom Buss and Newnes JJA agreed).
It is to be noted that the applicant’s counsel correctly conceded on the plea that the applicant’s offending was in the ‘mid-range’ of objective seriousness.[71] Ordinarily, such objectively serious offending would warrant a sentence in excess of the statutory minimum, notwithstanding the reductions available pursuant to s 16AAC(3) of the Crimes Act. However, the exceptional subjective circumstances of the applicant’s case, in combination with the reductions the applicant is entitled to in accordance with s 16AAC(3), have compelled me to reach the conclusion that in the unique circumstances of this case it is appropriate to impose a sentence that is less than the statutory minimum.
[71]Reasons, [42].
Those subjective circumstances include that the applicant was an extremely immature 19 year old. His upbringing was notably difficult. He suffered sexual abuse as a child which precipitated a major interruption to his schooling and social development. His father had problematic gambling and alcohol addictions. The applicant’s attempted suicide by jumping off the roof of a building was no feint endeavour. He pleaded guilty, admitted his offending and provided passwords to his devices to the police. He expressed remorse. He had no prior criminal history and had refrained from further offending post arrest. The judge found his prospects of rehabilitation to be good. He was entitled to the benefit of delay.
The combination of these matters leads to the conclusion that the sentence imposed on charge 12 is wholly outside the available range.
Accordingly I would grant leave to appeal on ground 3, allow the appeal and set aside the sentence on charge 12. I would resentence the applicant to four years and six months’ imprisonment on charge 12 and order that the sentence on charge 12 commence 12 months after the sentences on the other charges. That results in a total effective sentence of five years and six months’ imprisonment. I would set a non-parole period of three years.
Conclusion
Leave to appeal on ground 3 is granted and the appeal against the sentence imposed on charge 12 is allowed. The applicant is resentenced on that charge to 4 years and six months’ imprisonment. The sentence on charge 12 is to commence 12 months after the sentences on the other charges. The applicant is thereby sentenced to a total effective sentence of five years and six months’ imprisonment with a non-parole period of 3 years.
KAYE JA:
I agree with Taylor JA.
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