Demir v R

1. [1]

   STERN JA: I agree with Garling J.

2. [2]

   McHUGH JA: I agree with Garling J.

3. [3]

   GARLING J: In this matter, Erkan Demir, to whom I will refer as the applicant, seeks leave to appeal against a sentence imposed upon him by Bennett SC DCJ on 3 May 2024.

4. [4]

   If granted leave, the applicant advances three grounds of appeal, namely:

   1. (1)

      the sentencing Judge failed to consider and make findings about the objective seriousness of each of the offences;

   2. (2)

      the sentencing Judge erred in not giving any, or sufficient, weight to a reduction in moral culpability given the applicant’s background and Bugmy considerations; and/or taking into account the applicant’s mental health conditions;

   3. (3)

      the sentence is manifestly excessive.

5. [5]

   The applicant pleaded guilty in the Local Court to two offences, the first being:

6. [6]

   The maximum penalty for the child abuse material offence is imprisonment for 10 years. The maximum penalty for the bestiality material offence is imprisonment for 3 years. The legislation does not provide for any standard non-parole period for either offence.

7. [7]

   When being sentenced, the applicant asked that an additional offence of failure to comply with reporting obligations, contrary to s 17(1) of the Child Protection (Offenders Registration) Act 2000 (NSW), be taken into account on a Form 1 with respect to the child abuse material offence. The failure to comply with the reporting obligations consisted of the applicant’s failure to disclose eight email addresses.

8. [8]

   The sentencing Judge imposed an aggregate sentence of 3 years and 6 months, with a non-parole period of 2 years and 3 months. The sentence was to commence on 18 June 2023.

9. [9]

   With respect to the child abuse material offence, with the Form 1 offence attached, the sentencing Judge indicated a sentence of 2 years and 9 months, and with respect to the bestiality material offence, the sentencing Judge indicated a sentence of 1 year and 3 months.

Sentencing Judgment Remarks

1. [10]

   His Honour Bennett SC DCJ noted that the facts relevant to the offences were contained in an Agreed Statement of Facts, to which there were two annexures, Annexure B referring to the first charge and Annexure A referring to the other charge. Each of those annexures set out, in considerable detail, the content of the material which had been recovered by means of a Cellebrite download from the applicant’s telephone.

2. [11]

   Of the facts relating to the child abuse material offence, his Honour gave this description:

3. [12]

   With respect to the bestiality material offence, the details of which were contained in Annexure A to the Agreed Statement of Facts, his Honour said this:

4. [13]

   Insofar as the Form 1 offence was concerned, the applicant had completed a series of forms relating to his status on the Child Protection Register. His obligations were explained to him. He was required to declare his email addresses at the time of completing the forms necessary for registration. Only one email address was declared. About two weeks later, police attended at the applicant’s home to inspect and verify the details recorded on the Child Protection Register. Police declared to the applicant an intention to search his house, at which time a second mobile telephone was retrieved by the applicant. When that phone was reviewed, eight other email addresses, which had not been declared on the Child Protection Register by the applicant, were discovered.

5. [14]

   In dealing with the applicant’s subjective case, the sentencing Judge noted the following features.

6. [15]

   The applicant was 41 years of age at the time of offending. Whilst a young child, he had been the subject of significant family violence. At about the age of 14, the applicant had been groomed and sexually assaulted by a teacher. After that time, following a period of decreasing mental health, the applicant engaged with an older antisocial peer group and commenced using alcohol and drugs to self-medicate. His substance abuse commenced at the age of 15, when the applicant smoked marijuana. By the time he turned 16, he had progressed to consuming heroin and methamphetamine. He ran away from home at the age of 17.

7. [16]

   Prior to the offending, the applicant had been in a relationship, during the course of which the applicant’s partner lost their baby in a car accident and later, as a consequence, his partner committed suicide. The applicant’s mother died in 2021, and thereafter, the applicant was the sole carer for his father, who suffered from Alzheimer’s disease, until his father required fulltime care.

8. [17]

   Expert evidence before the sentencing Judge demonstrated that the applicant met the criteria for Stimulant Use Disorder, Opioid Use Disorder, Gambling Disorder, Persistent Depressive Disorder, as well as Post Traumatic Stress Disorder.

9. [18]

   The sentencing Judge found that the applicant had a moderate risk of sexual recidivism and displayed insight into his offending behaviour. The sentencing Judge found that there was a connection between the applicant’s viewing of pornography and his hypersexuality which occurred with methamphetamine use.

10. [19]

    The sentencing Judge noted that the applicant had previous convictions, including for intentionally recording an intimate image without consent, and six other offences of possessing Category 1 and Category 2 child abuse material. He noted, with respect to those matters, that the applicant had ultimately been sentenced to concurrent terms of imprisonment for 5 months commencing on 18 January 2023 and expiring on 17 June 2023.

11. [20]

    The sentencing Judge also noted previous criminal offences essentially relating to the driving of motor vehicles on a number of different occasions which had resulted in the applicant being ordered to submit to a Community Corrections Order for a period of 2 years.

12. [21]

    The applicant had minor drug offences as well.

13. [22]

    The sentencing Judge noted that the applicant had given evidence before him. In his evidence, the applicant said that, with one exception, when dealing with whether he had a sexual interest in children, he had otherwise told the truth to the retained psychologist, Dr Dorman, and to the author of the Sentencing Assessment Report, Mr Chapman. The applicant also accepted that he needed professional therapy and treatment for his condition, and that he proposed to undertake that treatment when he was released. He extended that willingness to undertaking treatment for his drug addiction. He also averred the truth of the facts contained in a statement with respect to the abuse he suffered as a young man, at the hands of a teacher.

14. [23]

    His Honour came to a number of conclusions about the applicant’s subjective case, including these:

15. [24]

    In addressing both the Crown’s and applicant’s submissions, the sentencing Judge recorded the following Crown submission, with respect to objective seriousness:

16. [25]

    With respect to the objective seriousness, the sentencing Judge noted that counsel for the applicant advanced oral submissions about the objective seriousness which were “… comparable to what the Crown offered, perhaps favouring the offender a little more”.

17. [26]

    The following findings with respect to the applicant were made, namely that:

18. [27]

    Based upon those conclusions, the sentencing Judge, after allowance of a 25% reduction for the plea of guilty, indicated the sentences recorded at [9], and imposed the aggregate sentence.

Ground 1

1. [28]

   Ground 1 of the appeal contends that the sentencing Judge erred by not making any assessment of the objective seriousness of the applicant’s criminality.

2. [29]

   The applicant submitted that, even where there is an agreement between the parties as to objective seriousness, the Court is still required to make a finding with respect to that conclusion, noting reasons for it: see Baydoun v R [2024] NSWCCA 65 at [37].

3. [30]

   The Crown submitted that there was no error with respect to this ground. The Crown articulated the context against which this ground ought to be viewed as being the fact that the Court was delivering its sentence judgment ex-tempore, and that it is well accepted that, in those circumstances, a judgment may lack the order and precision of language that a reserved judgment permits: see Rotner v R [2011] NSWCCA 207 at [57] per Simpson J (with whom McClellan CJ at CL and Fullerton J agreed).

4. [31]

   It was submitted by the Crown that, having regard to the principles enunciated in Delaney v R; R v Delaney [2013] NSWCCA 150; (2013) 230 A Crim R 581, the sentencing Judge specifically referred to the factors which bore upon the objective seriousness of the offence, such that it can be inferred, when the judgment is read fairly as a whole, that the relevant assessment was made.

5. [32]

   The Crown submitted that no criticism could be made of the “convenient” way used by his Honour to summarise the critical factors relevant to the seriousness of the offences. By adopting that summary contained in Annexures A and B to the Facts, the effect was that the Judge adverted to the most pertinent factors relevant to an assessment of the objective seriousness of the offence.

6. [33]

   In those circumstances, the Crown submits that no error is to be detected in the judgment.

7. [34]

   Recently, in Jebara v R [2025] NSWCCA 83, the Court (Ball JA, Fagan and Yehia JJ) noted, at [19], that it was not an error for the sentencing Judge, in that case, to have refrained from ascribing the offending to a position on a notional scale such as “low range” or “below mid-range”. The Court said:

8. [35]

   The Court also noted, with approval, the judgment of Hoeben CJ at CL in Delaney, as being frequently cited to illustrate what is required for the sentencing Judge “… to undertake and to articulate sufficiently an assessment of objective gravity”.

9. [36]

   In Delaney, Hoeben CJ at CL (with whom Harrison and Beech-Jones JJ agreed), said at [56]:

10. [37]

    A decade earlier, in Gal v R [2015] NSWCCA 242, Beech-Jones J (with whom Bathurst CJ and Price J agreed) said, at [39]:

11. [38]

    It is obvious that in this case, the sentencing Judge did not apply a formula of words to describe the offending conduct on a notional scale. As there was no standard non-parole period fixed, it was not necessary for his Honour to formulate his opinion about the objective seriousness of the conduct by reference to such a formula.

12. [39]

    However, his Honour, in my view, when his Sentencing Remarks are read as a whole, by his reference to the existence of Annexures A and B to the Agreed Facts, and his entirely understandable decision that it was unnecessary to set out the detail in his Sentencing Remarks, clearly referred to and considered the number of videos and still images, a description of their content, the length of the videos and when the files were created on the applicant’s phone, i.e. when the videos were downloaded by the applicant. In other words, his Honour clearly took into account the period over which the applicant had been participating in the conduct which gave rise to each of the offences. Further, his Honour noted that, although there was no agreement between the parties with respect to the assessment of the objective seriousness of the offending, the fact was that the parties’ respective submissions could not be said to be different in substance, and the sentencing Judge did not express any disagreement with those submissions.

13. [40]

    The sentencing Judge took into account the full range of facts and factors surrounding the offending, including the aggravating factors which existed insofar as the applicant had a prior record of convictions, the offence was committed whilst the subject of conditional liberty, although the basis of this conditional liberty was later set aside, and, further, that the applicant had attempted to minimise his involvement in the offences.

14. [41]

    In those circumstances, I am satisfied that the Sentencing Remarks referred to, and took account of, all of the relevant features which were necessary to be considered, and that no error in that process has been shown.

15. [42]

    I would not uphold Ground 1.

Ground 2

1. [43]

   Ground 2 contends that the sentencing Judge erred “… in not giving any or sufficient weight to a reduction in moral culpability …” having regard to the applicant’s background and his mental health conditions.

2. [44]

   The applicant submits that the sentencing Judge did not make any findings or specify the way in which Dr Dorman’s report was considered, in relation to sentence. He submits that, specifically, any interaction between his psychological disorders, past trauma and substance abuse, insofar as it affected his offending, was not considered by the sentencing Judge, thereby constituting an error.

3. [45]

   In particular, the applicant argues that, despite the Crown conceding that moral culpability may be reduced by reason of the applicant’s deprived upbringing, the sentencing Judge did not make any finding that the applicant’s moral culpability was, in fact, reduced, having regard to that deprived upbringing.

4. [46]

   The Crown accepts with respect to the reduction of moral culpability on account of any mental health conditions, that no such finding was specifically made. It draws attention to the fact that no submission was made to the sentencing Judge that the evidence supported such a finding.

5. [47]

   With respect to the position about the applicant’s deprived upbringing and “Bugmy considerations”, the Crown submits that the sentencing Judge did not accept the whole of the applicant’s evidence as to his background, on the balance of probabilities. As well, the Crown notes that the defence counsel at sentencing did not submit that the evidence of the applicant’s deprived upbringing and background operated to reduce his moral culpability.

6. [48]

   The Crown submits that, when the Sentencing Remarks are read fairly and as a whole, the sentencing Judge did make a finding, at least implicitly, that the applicant’s moral culpability was reduced by reason of his deprived upbringing.

7. [49]

   With respect to the issue of the applicant’s mental illness, the only submission made by his counsel to the sentencing Judge, was one referring to the decision of Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1, where, at [177], McClellan CJ at CL set out a number of principles to be considered where mental health issues were relied upon in sentencing.

8. [50]

   What in fact was said to the sentencing Judge by defence counsel on this point was the following:

9. [51]

   I note that [74] of Dr Dorman’s report is the paragraph in which he expresses his diagnoses “based on the current assessment”.

10. [52]

    There was no submission that the applicant’s mental health diagnoses, to which reference was made, had contributed to the commission of the offences in a material way. Without such a submission, and elucidation of the basis of it, I do not take the submission by applicant’s counsel to the sentencing Judge set out at [50] above to refer to the first principle identified in De La Rosa at [177], which refers to the reduction of moral culpability.

11. [53]

    Rather, in the context in which the submission was made, and having regard to the fact that the diagnosis of mental health conditions was not one which described a historical diagnosis, but rather one expressed as a contemporaneous diagnosis, I take the submission of counsel for the applicant before the sentencing Judge to be referring to the propositions that the offender was an inappropriate vehicle for general deterrence, that any custodial sentence may weigh more heavily on that person and whether or not the significance of specific deterrence was affected.

12. [54]

    The fact that the submissions of counsel to the sentencing Judge did not encompass any proposition that the mental health of the applicant was being relied upon to reduce his moral culpability is readily seen from the fact that, when he was called to give evidence, the applicant himself did not suggest that, in any way, his mental health conditions had been causally connected to his offending conduct. As well, the report of Dr Dorman, the forensic psychologist, did not make any link between the applicant’s mental health conditions and his offending conduct.

13. [55]

    At [100], Dr Dorman said this:

14. [56]

    In light of the fact that Dr Dorman did not diagnose a substance abuse disorder, it is unsurprising that this opinion does not suggest any causal link between that applicant’s mental health conditions and his offending, sufficient to warrant a conclusion that his moral culpability ought to be reduced. Rather, it draws attention to the self-generated use of drugs by the applicant as a possible contributing factor.

15. [57]

    In those circumstances, I am unpersuaded that the sentencing Judge made any error relating to a reduction of the applicant’s moral culpability by reason of any mental health condition.

16. [58]

    To the extent that Ground 2 contends that the Judge did not take into account the applicant’s generally deprived or disadvantaged upbringing, I am unpersuaded that that is so. The sentencing Judge quoted, at length, material about the applicant’s disadvantaged upbringing. He paid specific attention to the family violence to which the applicant was exposed in the home, as well as the fact that he had suffered a form of sexual abuse at the hands of a teacher when he was in high school. The fact that the sentencing Judge noted the concession of the Crown when considering all of the factors relevant to his assessment, supports the contention of the Crown that he did take the applicant’s deprived and disadvantaged upbringing into account in assessing the applicant's moral culpability in the commission of the offences.

17. [59]

    In my view, on a fair reading of the sentencing Judge’s Remarks, he has carefully considered the applicant’s deprived upbringing and has taken it into account in considering his moral culpability for the offence and in assessing the appropriate sentences.

Ground 3

1. [60]

   The third ground is that the sentences which were imposed, were manifestly excessive.

2. [61]

   This Court recently considered the principles applicable to grounds of appeal alleging manifest excess or manifest inadequacy of a sentence imposed in a lower court. In MO v R [2023] NSWCCA 26 at [106], the Chief Justice (with whom Davies and Fagan JJ agreed) referred to the applicable principles with respect to an appeal that a sentence was manifestly excessive in this way:

3. [62]

   In TH v R [2025] NSWCCA 121, Bell CJ (with whom I agreed) said this:

4. [63]

   The offence relating to the child abuse material, contrary to s 91H(2) of the Crimes Act, carries a maximum penalty of 10 years imprisonment. His Honour indicated a term of imprisonment of 2 years and 9 months after the application of a 25% discount for the applicant’s plea of guilty. The notional starting point, therefore, for this sentence, was 3 years and 8 months.

5. [64]

   Having regard to the fact that the applicant had a prior conviction for possessing child abuse material, i.e., the same offence for which he was being sentenced, the sentencing Judge did not think that the applicant had strong prospects of rehabilitation, rather confining his assessment to the applicant as having “at least some capacity for rehabilitation” and that he had “some insight into his offending” and, further, the sentencing Judge had to take into account a Form 1 offence with respect to that indicative sentence.

6. [65]

   With respect to the bestiality offence, the indicative sentence was 1 year and 3 months after a discount of 25% for the plea of guilty, which would have the effect of amounting to 1 year and 8 months in circumstances where the maximum term of imprisonment was 3 years.

7. [66]

   It is to be remembered that, with respect to this offence, the applicant had downloaded a very considerable number of videos (261) onto the relevant mobile phone – many of which were more than merely brief video clips. Some extended up to one hour or more.

8. [67]

   The applicant submits, with respect to this indicative sentence, that it was excessive.

9. [68]

   Additionally, the applicant submits that the extent of notional accumulation between the two indicative sentences supports the argument that the resulting aggregate sentence is manifestly excessive. The applicant submits that, in effect, the aggregate sentence represents the entirety of the child abuse material offence, plus 9 months with respect to the possess bestiality material offence. He submits that:

10. [69]

    I am unpersuaded that the sentence was manifestly excessive.

11. [70]

    It may be thought that there could have been greater accumulation between the offences, but given the disparate time periods, by reference to Annexures A and B, at which the videos were downloaded onto the applicant’s mobile phone, it was open to the sentencing Judge to conclude that each offence had to have significant recognition for the individual criminality which the offences displayed.

12. [71]

    In my view, neither of the indicative sentences display any latent error by way of excessive sentence of a kind which could, or did, influence the aggregate sentence.

13. [72]

    Having regard to the totality of the criminality, including the Form 1 offence, in my view, it was open to the sentencing Judge to impose the sentence that he did, and the applicant has not discharged the very heavy practical burden of persuading this Court that the sentence was manifestly excessive.

14. [73]

    I would not uphold this ground of appeal.

Orders

1. [74]

   I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Appeal dismissed.