Jbara v R

1. [1]

   THE COURT: The applicant seeks leave to appeal against sentences of imprisonment imposed by the District Court on 13 September 2024 following his pleas of guilty to three charges concerning child pornography and child abuse material. The three offences, the sentences imposed and the statutory maximum penalties are as follows:

2. [2]

   Pursuant to s 16BA of the Crimes Act 1914 (Cth) the learned sentencing judge took into account one offence on a schedule, namely, that on 27 January 2015 he caused child abuse material to be transmitted to himself using a carriage service, contrary to s 474.19(1) of the Code.

3. [3]

   Her Honour ordered that the sentence for count 2 commence first, backdated by 50 days to take into account presentence custody, that the sentence for count 3 commence 3 months later and that the sentence for count 1 commence 5 months later again. The effect of the partial accumulations is that the applicant’s total effective head sentence is 4 years and 2 months. In accordance with s 19AB of the Crimes Act her Honour fixed a single non-parole period of 2 years and 3 months. The applicant will be eligible for release to parole on 24 October 2026.

4. [4]

   The grounds of appeal for which leave is sought are as follows:

Facts

1. [5]

   The facts of the applicant’s offending were the subject of an agreed statement before the sentencing judge. On 20 January 2022 the applicant’s iPhone was seized from him during the execution of a search warrant by Australian Federal Police. The phone operated a mobile telecommunication service subscribed by the applicant. A WhatsApp account was associated with the service.

2. [6]

   Data stored on the phone included 14 archived group chats in WhatsApp, containing a very large volume of child pornographic videos and images. Count 1 was particularised by 11 occasions between 6 March 2015 and 5 May 2016 on which the archived communications showed that he had transmitted or solicited child pornography material through WhatsApp. On four occasions, in March/April 2015 and again in March/April 2016, the applicant sent messages to chat group members describing in graphic terms his own claimed sexual activity with male children. On three occasions in late 2015 he transmitted to other chat group members videos depicting boys being anally penetrated by another boy or by an adult male. The running times of the videos were, respectively, 15 seconds, 5 minutes 24 seconds and 11 minutes 19 seconds.

3. [7]

   The remaining four occasions comprising the facts of count 1 consisted of messages sent by the applicant to the members of two of the chat groups in April and May 2016 requesting “pain or rape videos”. By the respective dates on which the applicant sent those requests to other chat group members, he had received from them many hundreds of attachments comprising mostly child pornography.

4. [8]

   Count 2 concerns, first, access by the applicant to 63 child pornography files. His access to the material is indicated by the files having been “starred”, a form of bookmarking. Thirteen examples of the starred files are described in the agreed statement of facts. They are videos of between 25 seconds and 4 minutes duration. All but three of them record adult males performing anal penetration and/or fellatio on boys aged between 9 and 16 years. According to the descriptions in the statement of facts, in two of the videos the child victim can be seen wincing in pain while being anally penetrated. One of the other examples depicts two boys aged between 9 and 11 years engaged in sex acts. Another shows a female child of between 6 and 8 years being digitally penetrated. The final example shows penile vaginal penetration of a girl of between 5 and 7 years, continuing for 3 minutes.

5. [9]

   The second aspect of count 2 concerns transmission by the applicant of two videos to other members of the group chat. The videos are of 17 seconds and 26 seconds duration, respectively. One shows an adult male penetrating a boy of approximately 14-16 years, the other shows male children of 10-12 engaged in sexual acts with each other.

6. [10]

   The child abuse material for which the applicant was charged with possession under count 3 comprised 1000 items that had been downloaded to the applicant’s iPhone on WhatsApp. There were a total of 25,961 image and video attachments located in the 14 archived chats. Police ceased reviewing the material after identifying the 1000 items that are subject of this count. The agreed facts do not include detailed descriptions of individual items. Instead the material is categorised according to the Australian Child Abuse Categorisation Scheme. For present purposes the two relevant categories in that scheme are as follows:

7. [11]

   Of the 1000 files that are the subject of count 3, 892 were in Category 1 and 108 were in Category 2. The agreed statement of facts included the following further general statement about the 1000 files:

8. [12]

   The agreed facts of the additional offence that was taken into account pursuant to s 16BA of the Crimes Act are that on 27 January 2015 the offender sent messages to another WhatsApp user in one of the group chats requesting “photos or films” of children. He received from that user an MP4 file consisting of a 42 second video. It depicts a boy of between 13 and 14 years forcing a younger boy of between 10 and 12 years to bend over and then anally penetrating him.

Ground 1 – assessment of the objective seriousness of count 3

1. [13]

   With respect to the objective seriousness of count 1, her Honour summarised in her remarks on sentence the facts of the 11 instances of soliciting or transmitting child pornography that constituted the offending against s 474.19(1) and 474.24A(1). At the conclusion summary her Honour said:

2. [14]

   Her Honour then listed the following numerical data of the offending: the number of chats in which the communications took place (5), the number of members of each chat (between 58 and 456), the number of transmissions and solicitations during the charge period (11, over 14 months), the number of occasions when the communications were of text only and the nature of the text (8 out of 11, containing descriptions of depraved acts and requests for depraved material), the number of videos transmitted (4), the number of children abused in the videos (5, aged between 10 and 12 years). Her Honour’s recognition of those numbers was apparent from her earlier summary of the agreed facts. The extraction of the data was not essential to the discharge of her Honour’s obligation to consider features of objective seriousness but it was helpful as a way of emphasising those features. In this part of the remarks her Honour also noted the nature of the video content, namely, “highly sexualised and depraved” depictions of penetrative intercourse with young boys.

3. [15]

   Her Honour’s consideration of the objective gravity of count 1 concluded as follows:

4. [16]

   With respect to count 2, her Honour again summarised the agreed facts of the offending and noted the number of child pornography files that had been accessed (63), the period over which this took place (almost 3 years), the number and duration of the pornographic videos that were involved in the transmission aspect of the offending (2 videos of 26 seconds and 17 seconds, respectively) and the number of people in the group chat within which the transmissions were made (2). Her Honour did not recount what appears in the agreed statement of facts by way of description of the content of a sample of 13 of the files to which the applicant has gained access. Her Honour recognised and characterised the content by stating that it was so depraved that it would be inappropriate to read out the description. Her Honour summarised the content of the two videos that the applicant had transmitted.

5. [17]

   Following the pattern of the remarks concerning count 1, after summarising the facts her Honour reiterated some of the numerical data. Her Honour noted that “real children” were abused in the production of the material, that it depicted “a high level of sexualised and depraved conduct” and that two of the files “depict two boys wincing in pain as they are being anally penetrated, which is evidence of physical harm additional to the usual harm”. The concluding statement of her Honour’s consideration of the objective seriousness of this count is as follows:

6. [18]

   With respect to count 3, her Honour’s remarks with respect to objective seriousness were as follows:

7. [19]

   In respect of count 3 her Honour did not ascribe the offending to a position on a notional scale, such as “low range” or “below mid-range” et cetera. The duty to assess objective seriousness does not require that a position on such a scale be nominated: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [29]; Tepania v R (2018) 275 A Crim R 233; [2018] NSWCCA 247 at [110(d)] (Johnson J). That point has been reiterated many times, including recently in DH v R [2022] NSWCCA 200 at [29]-[35] (Harrison J), [56] (Fagan J) and [58-62] (Yehia J); Bektasovski v R [2022] NSWCCA 246 at [11]; (2022) 407 ALR 125 (Beech-Jones CJ at CL, Kirk JA and Yehia J agreeing) and Kochai v R [2023] NSWCCA 116 at [51] (Adams J, Button and Wilson JJ agreeing).

8. [20]

   In support of ground 1 the applicant asserts that “the sentencing judge’s remarks [on count 3] did not go much beyond a bare recitation of the facts”. Relying upon Gal v R [2015] NSWCCA 242; R v Van Ryn [2016] NSWCCA 1 at [133]-[136] and Twaddell v R [2019] NSWCCA 116 at [33]-[35] the applicant submits that such a recitation is not adequate for an assessment of gravity. Between bare recitation of agreed facts, which is insufficient, and placement on a scale of seriousness, which is not necessary, the judgment of the Chief Judge in Delaney v R; R v Delaney (2013) 230 A Crim R 581; [2013] NSWCCA 150 is frequently cited to illustrate what is required in order to undertake and to articulate sufficiently an assessment of objective gravity.

9. [21]

   The Crown appeal in Delaney v R; R v Delaney included a ground that the sentencing judge had failed to determine the objective criminality of three counts of demanding money with menaces, of which the offender had been convicted after trial by judge alone. Hoeben CJ at CL (Harrison and Beech‑Jones JJ agreeing) held as follows (at [56]):

10. [22]

    In Gal v R at [33] Beech-Jones J (with whom Bathurst CJ and Price J agreed) quoted the above passage and in reliance upon it said this:

11. [23]

    Error was found in Gal v R because the sentencing judge in that case had made no comment to identify features of the offending that he regarded as bearing upon its relative seriousness and he “did not describe the facts of the offence at all”. That could not be said in the present case. At [39] Beech-Jones J added this:

12. [24]

    In the present case learned sentencing judge’s observations concerning count 3 conform to the standard applied in Delaney v R; R v Delaney and they exceed the minimum requirement specified in Gal v R. When her Honour “[paused] to assess the gravity of this offence” she expressly reflected upon the large number of files and their classification, predominantly in the worst Category and, as to the remaining approximately 10%, in the second worst Category. Her Honour’s reflection included noting that the 892 Category 1 files “involved real prepubescent children and involved the infliction of cruelty and physical harm upon children as well as sexual acts”. The Categories are defined in standardised terms, readily accessible in the public domain and reproduced in the agreed statement of facts. This was not a bare recitation of the facts. Rather, it involved an identification of the facts that her Honour considered were relevant and important to objective gravity. Short of placing the offending on a scale, or adopting a generalised descriptor of seriousness, neither of which is required, it is not apparent what more the learned judge could have considered or articulated by way of assessing gravity and providing reasons.

13. [25]

    The Crown appeal in R v Van Ryn again included a ground of failure to assess objective seriousness. At [136]-[137] RA Hulme J quoted the passage referred to above from the Chief Judge’s judgment in Delaney v R; R v Delaney but held that in the remarks on sentence that were the subject of that appeal the sentencing judge had “simply recited the facts by reference to the statement of agreed facts” and said nothing by way of identifying the relative seriousness of the offending or emphasising features that contributed to relative seriousness. Leeming JA and Johnson J agreed.

14. [26]

    In Twaddell v R the Court (Leeming JA, Ierace J and Hidden AJ) upheld a ground that the sentencing judge had either failed to assess objective seriousness or failed to give adequate reasons concerning assessment. Their Honours cited the authorities referred to above and said this at [37]:

15. [27]

    For reasons already given, the learned sentencing judge in the present case went beyond mere verbatim recitation of agreed facts and reflected upon salient features contributing to relative gravity of the offending.

16. [28]

    The applicant submits that where there are “clear findings as to objective seriousness in relation to some counts […] alongside the omission to do so in relation to another count”, the contrast will support an appellate finding that no assessment of gravity has been made in respect of the outlier. For that proposition the applicant cited Chen J (Wilson and Huggett JJ agreeing) in Baydoun v R [2024] NSWCCA 65. For all but one offence in that case the sentencing judge nominated scalar degrees of seriousness at [20]: “somewhere in the intersection between the top of the middle range of objective seriousness and the bottom of the high range of objective seriousness”, “about the midpoint of the mid-range of objective seriousness” and “towards the lower end of the spectrum”. Those formulations were unnecessary. With respect, they illustrate the artificial refinement of gradation and general lack of informative utility that is often seen in the nomination of scalar degrees of seriousness.

17. [29]

    At [33] in Baydoun v R, Chen J referred to the sentencing judge’s failure to nominate for the third count in that case a position on the notional range. His Honour appeared to treat that as, of itself, a failure to assess objective seriousness. For reasons given above, that prescriptive approach would not accord with the authorities. Subsequent paragraphs of the judgment show that his Honour applied more substantial reasons for holding that the sentencing judge that not adequately dealt with objective gravity, as follows:

18. [30]

    Baydoun v R does not assist the applicant. Ground 1 is not supportable and must be rejected if leave to appeal should be granted.

Ground 2 – finding that count 3 involved infliction of physical harm

1. [31]

   We have quoted at [11] above the portion of the agreed statement of facts that is relevant to ground 2. By agreeing to the statement the applicant accepted that the child pornography files for which he was convicted on count 3:

2. [32]

   At [18] above there is set out the full text of the learned sentencing judge’s findings regarding the nature of the pornographic files relevant to count 3. In the final paragraph of the extract her Honour said that images in count 3 that were classified in Category 1

3. [33]

   Pursuant to ground 2 it is argued that that the description “physical harm” is a departure from the agreed fact of children “being restrained, being treated sadistically”. There is no substance in that submission. In common understanding sadistic treatment of a child would connote that the perpetrator derived pleasure from inflicting pain, suffering, or humiliation on the child. In agreeing to the statement of facts the applicant must be taken to have accepted that ordinary meaning. There is no basis upon which he or his legal representative could realistically have intended or understood that the agreed fact of sadistic treatment was intended to be limited to the infliction of only psychological harm.

4. [34]

   The relevant part of the agreed statement of facts is concerned with visual images, including video rec of acts being carried out. It is agreed by the statement that restraint and sadism can be seen on the images, necessarily meaning that the sadistic infliction of suffering can be seen. There was no evidence before the sentencing judge upon which this Court could conclude that the images only depicted mistreatment of children from which no more than psychological harm could be inferred, as opposed to physical harm being seen.

5. [35]

   Further, the agreed statement of facts recorded that the count 3 material depicted children of between 3 and 17 years engaging in sexual acts with adult males. Inherently, the child victims of such acts would incur some measure of physical harm.

6. [36]

   The judge’s use of the phrase “physical harm” was merely a paraphrase of one aspect of the facts upon which the applicant agreed he should be sentenced. Ground 2 is without merit and if leave to appeal should be granted it would be rejected.

Ground 3 – application of s 16A(2AAA) of the Crimes Act

1. [37]

   Section 16A(2AAA) of the Crimes Act is in the following terms:

2. [38]

   Towards the end of her remarks on sentence the learned judge made the following statements that are relevant to that subsection:

3. [39]

   After having pronounced the individual terms of imprisonment and the single non-parole period, her Honour said this:

4. [40]

   For the purposes of considering sub-s (2AAA)(b) in the context of the present case, relevant parts of the statute may be simplified to the following:

5. [41]

   The applicant correctly submits that there was no evidence before the sentencing judge regarding what would be “sufficient time for [the applicant] to undertake a rehabilitation program”. There was, of course, no evidence of where the applicant would be housed in custody. That would be determined by Corrective Services after sentence was passed and might involve relocation from time to time. There was no evidence that there would be available to the applicant a custody-based rehabilitation program at whatever correctional facility or facilities he might find himself in from time to time, nor evidence of the length of any such program if he was held for long enough in any one correctional centre where such a program was offered.

6. [42]

   The availability and possible duration of child sex rehabilitation programs for an offender who has not yet been classified within the prison system are, for practical purposes, unknowable. Subsection (2AAA)(b) is therefore of questionable, or at least limited, utility in relation to such programs. Paragraph (b) of the subsection is not limited to custody-based programs but that is the type of program to which the learned judge referred at the end of the passage quoted at [38] above.

7. [43]

   The applicant submits the following:

8. [44]

   Those submissions would only have traction if the sentencing judge imposed a longer non-parole period than she would otherwise have fixed, for the purpose of accommodating the duration of an assumed rehabilitation program. Her Honour did not say that she was doing that. In context, her Honour’s words quoted at [38] and [39] above — “I will allow …” et cetera and “I have calculated …” et cetera – mean only that she was satisfied that the minimum period she would require the applicant to serve in custody would be sufficient to accommodate a program.

9. [45]

   It is clear that her Honour did not arrive at the length of the non-parole period by calculation from the time required to complete a program, as there was no such specific time in evidence, or referred to, from which to commence a calculation. Her Honour might more accurately have referred to her conclusion as an estimate that her orders were such as to permit a rehabilitation program to be undertaken before the applicant’s earliest release date.

10. [46]

    The applicant’s implication that her Honour extended what would otherwise have been his sentence, to accommodate a rehabilitation program, is not supported by consideration of the sentencing orders that were made. The applicant has not sought leave to appeal on a ground of manifest excess. All three individual sentences, the degree of accumulation and the single non‑parole period are moderate and well within the scope of the discretion available to her Honour, taking into account both the objective seriousness of the offending and the applicant’s subjective case (to which it has not been necessary to refer in these reasons). The sentencing outcome is not suggestive of forced extension on account of an assumed but unstated time requirement for a program.

11. [47]

    In particular, as her Honour only referred to a custody based program, there could be no suggestion that the head sentences and overall term were extended by this consideration. At 54% of the effective head sentence, the non-parole period was in notably moderate proportion. There does not arise an implication that the non-parole period was extended by reference to a possible sex offender program of unspecified length.

12. [48]

    In this case the lack of evidence or of any submission about the possible availability or duration of programs of the kind referred to in sub-s (2AAA)(b) meant that her Honour need not have referred to the subsection at all, except possibly to say that it was not engaged on the materials before her. However, the Court is not satisfied that the sentencing process miscarried by reason of such reference as the judge made to this subject.

13. [49]

    If leave should be granted, ground 3 would be dismissed.

Orders

1. [50]

   Although none of the proposed appeal grounds has merit, in the interests of achieving finality leave will be granted. The orders of the Court are as follows:

   1. (1)

      Grant leave to the applicant to appeal against sentence.

   2. (2)

      Dismiss the appeal.