Martin v R

1. [1]

   BASTEN JA: I agree with Johnson J.

2. [2]

   JOHNSON J: The Applicant, Aaron James Martin, seeks leave to appeal with respect to sentences imposed at the Newcastle District Court on 3 August 2018 for a number of child pornography and child abuse material offences under the Criminal Code (Cth) and the Crimes Act 1900 (NSW).

The Sentences

1. [3]

   Following pleas of guilty, the Applicant was sentenced by his Honour Judge Gartelmann SC to a total effective sentence of imprisonment for seven years commencing on 28 July 2018 with a non-parole period of four years expiring on 27 July 2022.

2. [4]

   The offences, maximum penalties and sentences imposed for each offence are set out in the following table:

3. [5]

   An additional 15 child pornography offences under the Criminal Code (Cth) were taken into account on sentence under s 16BA Crimes Act 1914 (Cth) on sentence for Counts 1, 2, 4, 6, 10, 19 and 20. The offences taken into account under s 16BA were as follows:

4. [6]

   With respect to the offences under the Criminal Code (Cth) (which constituted Counts 1-20), a single non-parole period of three years was fixed commencing on 28 July 2019 and expiring on 27 July 2022.

5. [7]

   A non-parole period was not imposed for Counts 21 and 22 (the s 91H(2) Crimes Act 1900 (NSW) offences), each of which attracted a fixed term of imprisonment. The Commonwealth non-parole period commenced on 28 July 2019, being one year after the commencement of the fixed terms of imprisonment imposed for Counts 21 and 22.

The Applicant’s Grounds of Appeal

1. [8]

   By Notice of Application for Leave to Appeal filed 30 April 2019, the Applicant communicated the following grounds of appeal:

Facts of Offences

1. [9]

   The sentencing Judge summarised the facts of the offences, utilising an Agreed Statement of Facts for that purpose. No challenge was made in this Court to his Honour’s findings of fact concerning the offences. Given the challenges made in the grounds of appeal, it is appropriate to set out extracts from his Honour’s sentencing remarks.

2. [10]

   His Honour commenced with an overview of the 2015 investigation of the Applicant’s activities (ROS 2-3):

3. [11]

   His Honour then moved to describe the offences for which the Applicant was to be sentenced together with the additional offences to be taken into account under s 16BA Crimes Act 1914 (Cth).

4. [12]

   From time to time in the following factual narrative, reference will be made to the CETS scale. The CETS scale classifies the activity depicted in child pornography and child abuse material as follows:

5. [13]

   The sentencing Judge described the Applicant’s offences committed in 2013-2014 (ROS 3-6):

6. [14]

   His Honour described the offences committed in 2014 (ROS6-7):

7. [15]

   His Honour referred to the 2015 offences involving the 13-year old boy (“K”) and the police operation after 23 July 2015 involving the use of an assumed male child (ROS 7-9):

8. [16]

   The sentencing Judge referred to the Applicant’s further offences in 2015 involving contact with other male children (ROS 9-14):

9. [17]

   His Honour outlined a number of the offences to be taken into account under s 16BA Crimes Act 1914 (Cth) (ROS 14-18):

10. [18]

    His Honour then moved to the s 474.27A offence concerning the 11-year old boy, (“T”), and the subsequent operation (which assumed the identity of that boy), which culminated in the arrest of the Applicant on 27 November 2015 (ROS18-19):

11. [19]

    His Honour summarised the offences under s 91H(2) Crimes Act 1900 (NSW) (ROS 19-20):

The Applicant’s Subjective Circumstances

1. [20]

   The Applicant was born in July 1985 and was 33 years old at the time of sentence. He has no prior criminal history.

2. [21]

   Tendered in the defence case on sentence were reports of Dr Rebecca Smith, forensic psychologist, dated 10 March 2018 and 29 June 2018 and a report of Dr Susan Pulman, forensic psychologist, dated 24 June 2018. In addition, a letter from the Applicant dated 3 July 2018 was tendered together with a letter dated 16 March 2018 from the Applicant’s parents.

3. [22]

   The Applicant did not give evidence at the sentencing hearing.

4. [23]

   With respect to the Applicant’s lack of prior convictions, his Honour said (ROS 26):

5. [24]

   The sentencing Judge addressed the Applicant’s personal background (ROS 26-28):

6. [25]

   The sentencing Judge referred in some detail to the psychological reports of Dr Smith and Dr Pulman. Dr Smith assessed the Applicant’s cognitive function and estimated that it was within the average range. She considered that the Applicant did not suffer a mental illness or intellectual disability at the time of assessment or at the time of the offences. Dr Smith raised the possibility that the Applicant suffered autism spectrum disorder and recommended a referral to a clinical psychologist with specific expertise in that area.

7. [26]

   As a result, Dr Pulman assessed the Applicant. She made no diagnosis of autism or autism spectrum disorder, but concluded that the Applicant possessed schizoid personality traits which likely contributed to the commission of the offences by reducing his ability to understand the emotional implications of his behaviour on others.

8. [27]

   The sentencing Judge made findings favourable to the Applicant with respect to the psychological evidence (ROS 29):

9. [28]

   There was one area where the psychological evidence did not assist the Applicant (ROS 29):

10. [29]

    The sentencing Judge recounted the attendance by the Applicant at a fortnightly sex offender program with Dr Smith between April and June 2018. His Honour said with respect to the Applicant’s prospects of rehabilitation (ROS 30):

11. [30]

    The psychological reports noted the Applicant’s denial of sexual interest in children (ROS 31):

12. [31]

    His Honour made a finding that the Applicant posed a moderate risk of reoffending (ROS 32):

Other Findings by the Sentencing Judge

1. [32]

   The sentencing Judge made specific findings concerning the objective seriousness of the various offences and categories of offences. Given the first and second grounds of appeal, it is appropriate to set out extracts from his Honour’s findings. His Honour said generally in this respect (ROS 20):

2. [33]

   His Honour turned to particular features of a number of the counts (ROS 20-22):

3. [34]

   His Honour made findings concerning the objective seriousness of particular offences (ROS 22):

4. [35]

   His Honour said with respect to the s 474.27A(1) offences (ROS 22-24):

5. [36]

   His Honour then made findings concerning the objective seriousness of several counts (ROS 24):

6. [37]

   His Honour turned to the s 91H(2) offences in Counts 21 and 22 (ROS 24-25):

7. [38]

   A finding was made concerning the objective seriousness of the s 91H(2) offences (ROS 25):

8. [39]

   His Honour noted that two identified actual child victims, K and T, provided victim impact statements to the Court. His Honour said (ROS 26):

9. [40]

   The sentencing Judge accepted that the Applicant “manifested a willingness to facilitate the administration of justice and also had significant utilitarian value” and allowed a 25% discount in this respect.

10. [41]

    His Honour had regard to the operation of bail conditions which had been in place for a period together with a short period of presentence custody.

11. [42]

    The sentencing Judge turned to issues of accumulation, concurrency and totality (ROS 33-34):

12. [43]

    His Honour explained the rationale for the structure of the sentences and the non-parole period to be set, noting that “… supervision of the offender on parole over a lengthy period to ensure ongoing psychological intervention and assist in reintegration into the community after serving the non-parole period of the sentence would promote the offender's prospects of rehabilitation and mitigate against the risk of re-offending. The effective non-parole period of the overall sentence has been determined with these competing factors in mind”.

13. [44]

    His Honour then imposed the sentences identified at [3]-[4] above.

Ground 1 - Sentences Imposed on Counts 21 and 22 were Manifestly Excessive

1. [45]

   Mr Wendler, counsel for the Applicant, submitted that the concurrent fixed-term sentences for the s 91H(2) offences revealed error, having regard to sentencing principles in decisions such as Minehan v R (2010) 201 A Crim R 243; [2010] NSWCCA 140. Counsel submitted that the child abuse material possessed by the Applicant for these offences involved proportionately less serious images by application of the CETS scale.

2. [46]

   Having regard to the number and nature of the material contained in Counts 21 and 22, and having regard to relevant factors identified in Minehan v R informing the objective criminality of those offences, it was submitted that fixed-term sentences of imprisonment for two years (Count 21) and one year and six months (Count 22) were manifestly excessive, with this adverse consequence infecting the overall total effective sentence.

3. [47]

   The Crown submitted that the findings made by the sentencing Judge with respect to the objective seriousness of Counts 21 and 22 were open in the circumstances of the case and that the fixed-term sentences of imprisonment imposed for each of these offences was open to the sentencing Judge, together with the determination reached concerning partial accumulation of the sentences for these offences.

4. [48]

   There is an element of artificiality in challenging fixed-term sentences of imprisonment for two out of 22 offences, which formed part of a series of cascading sentences after partial accumulation and the totality principle had been brought into the equation: R v Thalari (2009) 75 NSWLR 307 at 320; [2009] NSWCCA 170 at [82]. That said, it is open to the Applicant to seek to challenge the sentences fixed for two discrete offences out of a much larger number.

5. [49]

   It is to be kept in mind that the maximum penalty for an offence under s 91H(2) Crimes Act 1900 (NSW) is 10 years’ imprisonment.

6. [50]

   His Honour referred to the offences in Counts 21 and 22 (at [19] above) and made findings concerning the objective seriousness of these offences (at [37]-[38] above). His Honour found that Count 21 was “between the lower and middle end of the range of the objective seriousness for offences of this kind” and Count 22 was “towards the lower range”. These findings were understandable given the number and nature of the child abuse material. In reaching these findings, his Honour had regard to the sentencing principles in Minehan v R.

7. [51]

   The Applicant’s complaint concerning Count 21 pointed to the number of CETS scale Category 1 items for that offence. The classification of material under the CETS scale is informative, but should not be misunderstood. In R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174, this Court said at [77]:

8. [52]

   A claim of manifest excess requires the Applicant to demonstrate that the sentences imposed for Counts 21 and 22 were unreasonable or plainly unjust. The careful reasons of the sentencing Judge explained how he came to the sentences on those Counts. The sentences for those offences were clearly open.

9. [53]

   It has not been demonstrated that the sentences imposed for Counts 21 and 22 lay outside the range of sentences reasonably available for offences of this type. The Applicant has failed to demonstrate that the sentences imposed for Counts 21 and 22 were manifestly excessive.

10. [54]

    I would reject the first ground of appeal.

Ground 2 - Sentences Imposed on Counts 11, 12, 15, 19 and 20 were Manifestly Excessive

1. [55]

   In written submissions in support of this ground, counsel for the Applicant grouped various offences under headings and made broad submissions concerning the objective criminality of the offences contained in those groups. Mr Wendler grouped the offences contained in Counts 11, 12, 15, 19 and 20, where a sentence of imprisonment for two years was imposed on each matter. He submitted that these sentences were manifestly excessive having regard to sentences imposed on other matters, being Counts 13 and 14. He submitted that the objective gravity of those offences, and Counts 17 and 18 where imprisonment for one year was imposed on each, lay at a similar level so that there was error with respect to the sentences on Counts 11, 12, 15, 19 and 20.

2. [56]

   The Crown referred to the particular findings made by the sentencing Judge concerning the counts challenged in this ground and submitted that each individual sentence imposed on those counts was open to the sentencing Judge, so that no error had been demonstrated as asserted in this ground of appeal.

3. [57]

   Once again, there is an element of artificiality attaching to this ground of appeal (see [48] above).

4. [58]

   There are some fundamental difficulties with the Applicant’s submission in support of this ground. Each of the offences contained in Counts 11, 12 and 15 was punishable by a maximum penalty of 15 years’ imprisonment. The offences contained in Counts 19 and 20 were punishable by a maximum penalty of seven years’ imprisonment.

5. [59]

   Each of the offences which the Applicant seeks to use as points of comparison (Counts 13, 14, 17 and 18) were punishable by a maximum penalty of seven years’ imprisonment. Accordingly, there is an immediate and obvious difference between the two groups of offences which the Applicant seeks to compare in support of this ground.

6. [60]

   Further, the careful reasons of the sentencing Judge explain how he made an assessment of objective seriousness with respect to the offences and then moved to determine individual sentences (see [33]-[36] above). Of course, it was then necessary (as his Honour well recognised) to consider issues of concurrency, accumulation and totality before reaching a total effective sentence.

7. [61]

   It is also necessary to keep in mind that the sentences imposed on Counts 19 and 20 took into account as well the additional criminality involved in several of the offences which were subject to the schedule under s 16BA Crimes Act 1914 (Cth). When sentencing the Applicant on Count 19, his Honour took into account under s 16BA the additional offences identified at Items 7, 8, 9, 10, 11, 12, 13 and 14 of that schedule. In sentencing the Applicant on Count 20, his Honour took into account the additional offence at Item 15 of the s 16BA schedule. In sentencing for the primary offences, his Honour had regard to the additional features under s 16BA, giving greater weight to the need for personal deterrence and retribution: R v Lamella [2014] NSWCCA 122 at [48].

8. [62]

   Examination of the findings made by the sentencing Judge concerning the five sentences grouped for the purpose of this ground of appeal does not support a claim of error, let alone manifest excess. Once again, his Honour made careful findings referable to the offences and their objective seriousness and determined sentences for each offence which were clearly open in the circumstances of the case.

9. [63]

   Ground 2 should be rejected.

Ground 3 - Total Effective Sentence was Manifestly Excessive

1. [64]

   In support of this ground, Mr Wendler submitted that an important aspect on sentence in this case concerned the Applicant’s mental health issues as identified in the reports of Dr Smith and Dr Pulman. Whilst acknowledging that the sentencing Judge had made favourable findings on this issue for the purpose of sentence, it was submitted that this aspect assisted the Applicant on his claim that the overall sentence was manifestly excessive.

2. [65]

   Emphasis was placed on other subjective features of the case, including the bail conditions to which the Applicant had been subject. Mr Wendler submitted that the overall sentence was manifestly excessive in all the circumstances of the case.

3. [66]

   The Crown submitted that the individual sentences and the overall sentence were open to the sentencing Judge. The Crown emphasised that the offending had occurred over a period of two-and-a-half years and involved multiple offences and actual victims.

4. [67]

   The Crown submitted that the total effective sentence arrived at in this case could be supported by decisions of this Court in Miao v R [2017] NSWCCA 89, Lyons v R [2017] NSWCCA 204, Hong v R [2017] NSWCCA 238 and Peters v R [2018] NSWCCA 126 and of the Victorian Court of Appeal in Director of Public Prosecutions (Cth) v Ramos [2018] VSCA 290 and McNiece v R [2019] VSCA 78.

5. [68]

   The Crown submitted that it had not been demonstrated that the total effective sentence was manifestly excessive.

6. [69]

   In Obeid v R (2017) 96 NSWLR 155 at 241; [2017] NSWCCA 221, this Court said at [443]:

7. [70]

   The Applicant stood to be sentenced for 22 offences, with 15 further offences to be taken into account on sentence on a number of the primary counts. The Applicant’s offending occurred over a period of two-and-a-half years from mid-2013 to late 2015. As the sentencing Judge found, the Applicant’s offences involved significant deliberation and manipulation, including his use of multiple online identities and misrepresentation of his own age to victims.

8. [71]

   The Applicant was a very active and persistent offender who did not confine his interest in child pornography to examination of images. Rather, the Applicant contacted persons whom he understood to be young males and engaged them in indecent communications despite efforts by many of them to have him desist from further contact.

9. [72]

   This was not a sentencing case confined to offences of accessing and possessing child abuse material or child pornography material. Cases of that type, of course, are serious in themselves: R v Porte; R v De Leeuw [2015] NSWCCA 183 and Director of Public Prosecutions (Cth) v Garside (2016) 50 VR 800; [2016] VSCA 74. Although there are no direct victims where an offender has accessed or possessed child abuse material or child pornography material, they are not victimless crimes. As this Court said in R v De Leeuw at [145]:

10. [73]

    These observations are pertinent to sentence for Counts 21 and 22.

11. [74]

    Additionally, in this case, the Applicant interacted persistently with young males. He communicated with 26 victims who were, or whom he believed to be, male children. He engaged in highly sexualised chats with the victims and transmitted or solicited child pornography images to or from each of them.

12. [75]

    Unusually in this class of case, two of the identified victims (boys aged 11 and 13 years) made victim impact statements which the Court took into account for the purpose of ss 16A(2)(ea), 16AAA and 16AB Crimes Act 1914 (Cth). One of the victims explained in his victim impact statement that he felt as though he was being “stalked” by the Applicant and had received psychological counselling. Each victim recounted his ongoing nervousness at being in public places without a parent being present. The Applicant’s offences had adverse effects upon these young victims whom he exploited by his criminal communications with each of them.

13. [76]

    As the sentencing Judge made clear, a number of the offences involved other male children whom the Applicant contacted on more than one occasion, despite being told to desist. These included:

14. [77]

    Counts 7, 8, 9, 11, 13, 15 and 16 involved male children who sent photographs of themselves to the Applicant after being prevailed upon by him to do so. This is a pernicious feature of the offences.

15. [78]

    Counts 21 and 22 involve the Applicant’s possession of child abuse material giving rise to the offences under s 91H(2) Crimes Act 1900 (NSW). The sentencing Judge examined sample images drawn from the material possessed by the Applicant. For the purpose of determining this appeal, it is not necessary for this Court to view the material. The description of the material by reference to the CETS scale, read in conjunction with the findings of the sentencing Judge, is sufficient for this Court to discharge its appellate functions.

16. [79]

    These were s 91H(2) offences of some gravity. They formed part of an overall pattern of both active and passive offending by the Applicant with respect to child pornography, child abuse material and male children.

17. [80]

    It was emphasised in submissions for the Applicant that he did not make actual attempts to physically meet any of the children whom he contacted. The Applicant did not turn up at a planned meeting with the assumed 11-year old child (see [10] and [18] above). The Applicant’s letter to the sentencing court asserted that he was committing these acts “out of boredom” and that he “thought it was humorous” with no intent by him to follow through and physically contact any of the victims. The psychological reports addressed this and other issues in the process of risk assessment. The sentencing Judge took into account this aspect in determining sentence (see [30] above). The Applicant maintained to Dr Smith that he had no sexual interest in male children. This claim stands in stark contrast with his repeated pattern of highly sexualised messaging to male children. His Honour expressed understandable caution about the Applicant’s need for treatment and counselling given his limited insight into his offending.

18. [81]

    Of course, if the Applicant had made direct physical contact with any of the children, then this may have given rise to other and more serious offences as well. That did not occur in this case.

19. [82]

    The sentencing Judge had regard to the psychological evidence and made findings which favoured the Applicant in a number of respects which were not challenged in this Court. His Honour had regard to the operation of bail conditions to which the Applicant had been subject (see [41] above).

20. [83]

    Offences involving sexual predatory conduct towards children have general deterrence as a primary sentencing consideration: R v De Leeuw at [72]; Milliner v R [2019] NSWCCA 127 at [76]. This was an important feature on sentence for these offences, with his Honour having regard to the psychological evidence in determining the weight to be given to general deterrence in this case.

21. [84]

    An examination of sentencing decisions of this Court and the Victorian Court of Appeal, as referred to by the Crown (see [67] above), does not support the Applicant’s claim of manifest excess in this case.

22. [85]

    The total effective sentence imposed upon the Applicant followed the delivery of careful and balanced findings by the sentencing Judge. So much is clear from the substantial extracts from the sentencing remarks which appear earlier in this judgment.

23. [86]

    In my view, the total effective sentence was well within the exercise of reasonable sentencing discretion in all the circumstances of this case. The Applicant has failed to demonstrate that the total effective sentence was manifestly excessive.

24. [87]

    I would reject the third ground of appeal.

Conclusion

1. [88]

   The Applicant has not made good any of his grounds of appeal.

2. [89]

   I propose the following orders:

3. [90]

   PRICE J: I agree with Johnson J.