Bisiker v R

1. [1]

   BELL CJ: I have had the benefit of reviewing the reasons for judgment of Kirk JA. I agree with them and with the orders his Honour proposes.

2. [2]

   KIRK JA: The applicant seeks leave to appeal from a sentence imposed on him in the District Court on 4 September 2020. The application was filed out of time, but the Crown does not oppose an extension of time being granted. Given the not insignificant custodial sentence imposed, in my view it is appropriate that leave to appeal out of time be granted. However, the appeal should be dismissed.

3. [3]

   I will first outline the structure of the sentence imposed, then address the grounds of appeal raised by the applicant.

The sentence imposed

1. [4]

   The applicant had pleaded guilty to four offences, two under federal law and two under State law. Three of those offences related to the transmission or possession of child pornography. The other related to an offence of failing to comply with reporting conditions previously imposed on the applicant.

2. [5]

   The offences charged, and the sentences imposed, were as follows:

3. [6]

   There were two other offences listed on a schedule which were taken into account, relating to transmitting and accessing child pornography videos. The primary judge indicated that these were reflected in the sentence imposed for count 1.

4. [7]

   The cumulative total of the sentences imposed was 16 years and 3 months.

5. [8]

   The primary judge provided for a significant degree of concurrency for the terms of imprisonment, and provided for non-parole periods, by ordering as follows:

   1. (1)

      Counts 1 and 2 – the federal offences – were deemed to commence from 1 December 2021 and had a single non-parole period of 3 years (thus ending on 30 November 2024).

   2. (2)

      Count 3 was deemed to commence on 1 January 2020, and count 4 was deemed to commence on 1 July 2020. His Honour declined to set non-parole periods for these offences because these sentences would be subsumed within the non-parole period for the federal offences.

6. [9]

   The net result was that a total effective head sentence of 6 years and 11 months was imposed (from 1 January 2020 till 30 November 2026), with a non-parole period of 4 years and 11 months (ending on 30 November 2024). The effective non-parole period is some 71% of the effective head sentence.

7. [10]

   The primary judge had initially indicated he would set an effective non-parole period of 5 years and 11 months, such that it would have expired on 30 November 2025. That period would have been about 85.5% of the effective head sentence. Towards the end of his remarks on sentence, the primary judge said as follows with respect to the federal offences:

8. [11]

   At the conclusion of these remarks, counsel for the applicant raised a query about the sentences imposed, in effect because the effective non-parole period was greater than 60% of the effective head sentence. His Honour noted that “60% forms no part of the order, 60% is an observation I make about the total sentence”. Nevertheless, his Honour went off the bench twice to consider the matter, then effectively conceded that he may have made an error, and in the end reduced the effective non-parole period by a year to 4 years and 11 months, as set out in the table above.

9. [12]

   The task being undertaken by his Honour was not without complexity, involving, as it did, the setting of head, minimum and effective sentences with respect to four sentences (plus two matters on a schedule), of three different types, under two different sentencing regimes, neither of which could be described as simple.

The grounds of appeal

1. [13]

   The application raises four grounds of appeal, as follows:

   1. (1)

      the primary judge erred in determining the commencement date for the sentences for counts 1 and 2;

   2. (2)

      the primary judge erred in determining the single non-parole period for counts 1 and 2;

   3. (3)

      the primary judge erred in the application of the totality principle, leading to a manifestly excessive total effective head sentence and non-parole period;

   4. (4)

      the sentencing process miscarried.

2. [14]

   At the hearing these grounds coalesced when counsel appearing for the applicant stated as follows:

3. [15]

   The core complaint, thus, was that the total effective head sentence and non-parole period were manifestly excessive, because the principle of totality had not been correctly applied as regards the degree of concurrency provided for in the sentences imposed. Counsel for the applicant indicated that no complaint was made about the reasoning of the primary judge, stating that “[i]t is not disputed here that the sentencing judge referred to the correct principle”. No particular complaint was made about the manner in which his Honour reduced the non-parole period after counsel appearing below had queried the sentence. Rather, with respect to the claimed manifest excess, the Court was asked to “infer it from the final result”.

4. [16]

   The following, appropriate, concessions were made on behalf of the applicant:

   1. (1)

      The primary judge faced “a very challenging discretionary exercise when it came to totality, and it was made more complex by the prosecution of offences within two different jurisdictions, State and Commonwealth, that precluded a more practical approach such as an aggregate term”.

   2. (2)

      A significant term of imprisonment was always inevitable.

   3. (3)

      Each offence was independently serious.

   4. (4)

      There “was, as his Honour correctly identified, a need for discrete accumulation in relation to the State offences because they had a very distinct criminal quality about it”.

5. [17]

   The final assessment of totality when considering issues of concurrency and accumulation is evaluative and discretionary. In Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17, Gageler, Nettle and Gordon JJ stated at [64]:

6. [18]

   No challenge was made to the individual sentences imposed here. However, it was submitted on behalf of the applicant that “the individual starting sentences are quite severe”, and “that kind of combination that can lead to an excessive result, even though the sentencing judge obviously has totality in mind”. The applicant thus invoked the notion just quoted from Nguyen that more severe sentences may call for a greater degree of concurrency.

7. [19]

   As noted, the applicant conceded that there was reason not to order that the federal and State offences be completely concurrent, given the differences between them. The accumulation can be expressed in different ways, but if comparison is made to the largest head sentence of 5 years for count 1, the primary judge ordered an accumulation of 1 year and 11 months on the effective head sentence, out of a total possible accumulation of 11 years and 3 months. On the applicant’s case the claimed manifest excess is in the window between more than 5 years but less than 6 years 11 months. That is an ambitious submission, especially when the potential total head sentence with no concurrency would have been 16 years and 3 months.

8. [20]

   It may be accepted that there was substantial similarity between the matters the subject of the two federal offences, along with the two matters listed in the schedule. However, the State offences are distinct from the federal offences and from each other to a significant degree, both legally and factually.

9. [21]

   Count 3 was a failure by the applicant to comply with his reporting obligations as a registrable person under the Child Protection (Offenders Registration) Act 2000 (NSW). Those obligations had been imposed for a 15 year period following a conviction in 2006 of inciting a person under 16 years to commit an act of indecency. The offence charged in count 3 was failing to comply with his reporting obligations in the period 1 January 2014 to 6 May 2018 by failing to report the following (despite regular reminders of his obligations): that his mobile phone had internet access; that he had set up 3 email accounts; that he had Facebook and Facebook Messenger accounts; that he had a Twitter account; that he had a Telegram instant messaging account; and that he had installed WhatsApp on his mobile phone.

10. [22]

    True it is that counts 1 and 2 and the matters on the schedule involved use of one of these accounts, being the Telegram messaging service. Nevertheless, the factual overlap between the offences is limited as regards timing. Counts 1 and 2 and the schedule matters relate to conduct in the first few months of 2018, whereas count 3 relates to conduct over a period four years longer than that.

11. [23]

    Moreover, the breach of the State reporting requirements involved quite distinct criminality. The long title of the Child Protection (Offenders Registration) Act is (and was in 2006) as follows: “An Act with respect to registration and reporting requirements for certain offenders who commit sexual and other serious offences against children; and for other purposes”. When the Bill was first introduced, Police Minister Whelan said the following in his second reading speech (Hansard, Legislative Assembly, 1 June 2000, p 6475-6):

12. [24]

    The Act has been amended a number of times since it was first enacted. The other legislation that the Minister referred to has also changed. Nevertheless, the purposes referred to by him – including, in particular, of providing intelligence to police relating to child sex offenders, assisting in the management of such offenders in the community, and providing victims and their families with an increased sense of security – have remained apposite.

13. [25]

    Achievement of these purposes would be undermined if any failure to comply with the Act was seen as being subsumed within any subsequent offences which occurred in connection with something which should have been reported. In order for the protective regime to be effective it is important that there be deterrence for the very fact of failing to comply with the requirements of the Act. That conclusion is not undermined by the fact that the Minister referred to the regime as “provid[ing] a deterrent to reoffending”. That seeking to deter reoffending was one of the purposes of the regime does not mean that there is no separate significance, for punishment purposes, of breach of the regime where such reoffending has occurred.

14. [26]

    In this case the primary judge made an unchallenged finding that the applicant “was well aware of those [reporting] obligations and of the fact that he was in continuing and serious breach of them in several respects”.

15. [27]

    As for count 4, this relates to the applicant’s possession of child abuse material on his phone, as at the date when the phone was seized. No doubt there is some overlap with counts 1 and 2, in that his phone was used to commit those offences. But the overlap is far from complete. Counts 1 and 2 related to transmitting child pornography (3 and 10 times respectively) and receiving such material (56 and 41 times respectively). The federal offence is directed, relevantly, to use of a carriage service to transmit and receive child pornography. As has been recognised previously, that federal offence overlaps with but is distinct from State offences addressed to possession of such material: see eg R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174 at [55]-[56], and cases there cited. The federal offence deals with the distinct evil of spreading such images by use of the internet and the like. The State offences deal with possessing such material.

16. [28]

    Moreover, count 4 relates to his possession of many more child pornography images than were the subject of counts 1 and 2. There were 1070 images and 309 videos on his phone that were the subject of this charge. The primary judge stated that the “worst of the images conveys what can only be described as the sexual torture and humiliation of a child”. His Honour recorded that the “the number of images and the gross nature of the material seized represents offending of a high order in the possession of such material”. Thus count 4 related to significant criminal conduct distinct from the other three counts.

17. [29]

    Overall, given the important differences between the federal offences on the one hand and between each of the State offences on the other it was appropriate that there be a not insignificant accumulation. It certainly cannot be said that “the sentence for one offence can comprehend and reflect the criminality of the other offence”: cf Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301 at [154] per Price J; R v XX at [52(4)]. The sentences imposed for the two State offences were 3 years and 3 months, and 3 years and 6 months, which added together would have been 6 years and 9 months. In the context outlined, by no means was it manifestly excessive for the primary judge to provide for an accumulation of 1 year and 11 months on top of the sentence for count 1.

18. [30]

    As regards the setting of the non-parole period, the effective non-parole period viewed overall was some 71% of the effective head sentence. For New South Wales offences, setting a non-parole period of less than 75% in general requires special circumstances: Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2). The primary judge indicated that any question of special circumstances did not arise, given the structure of the sentence. It was not argued that such circumstances could be found here. Of course, the State provision did not apply as regards the federal offences. Regardless, there is no reason to regard the non-parole period imposed as manifestly excessive when account is taken of the unchallenged findings of the primary judge of the objective gravity of the offences, the need for specific and general deterrence, and that the applicant:

    1. (1)

       has poor prospects of rehabilitation, although that could improve;

    2. (2)

       has shown no real contrition, absent that inherent in pleading guilty;

    3. (3)

       has an absence of insight into his offending;

    4. (4)

       had “a predicted risk of sexual recidivism as being well above average, relative to other male sex offenders”;

    5. (5)

       had applied some effort to defeating the prior restrictions placed upon him; and

    6. (6)

       has a long criminal record.

19. [31]

    Both the applicant and the respondent drew the Court’s attention to prior decisions of this Court dealing with sentencing with respect to overlapping charges dealing with child pornography: Lyons v R [2017] NSWCCA 204; Berryman v R [2017] NSWCCA 297; Huggett v R [2021] NSWCCA 62. Those cases lend no support to the argument that the effective sentence imposed here was manifestly excessive.

20. [32]

    In all the circumstances here it simply cannot be said that “the result embodied in his order … is unreasonable or plainly unjust” such that this Court “may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance”: House v The King (1936) 55 CLR 499 at 505; see also Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221, at [443]. No appellable error is made out in the exercise of the sentencing discretion.

Orders

1. [33]

   I propose the following orders:

   1. (1)

      Grant leave to appeal out of time.

   2. (2)

      Appeal dismissed.

2. [34]

   PRICE J: I agree with Kirk JA.