Small v R

1. [1]

   HOEBEN CJ at CL: I agree with Johnson J and the orders which he proposes.

2. [2]

   JOHNSON J: By Notice of Application for Leave to Appeal filed on 5 May 2020, the Applicant, Christopher Small, seeks leave to appeal with respect to sentences imposed at the Sydney District Court on 17 November 2017 for a number of grooming, child pornography, child abuse material and related offences under the laws of the Commonwealth of Australia and the State of New South Wales.

The Offences and Sentences

1. [3]

   As will be seen, the Applicant (aged 38 years at the time of the offences) committed a series of offences including cybersex offences involving an especially vulnerable 14-year old girl and offences of failing to comply with obligations under the Child Protection (Offenders Registration) Act 2000 (NSW) (“the Offenders Registration Act (NSW)”). The Applicant had prior convictions for grooming and child pornography offences as well as offences under the Offenders Registration Act (NSW).

2. [4]

   Following pleas of guilty, the Applicant was sentenced on 17 November 2017 by her Honour Judge Huggett for the following offences:

3. [5]

   In passing sentence for the offence in Sequence 11, the Applicant asked the sentencing court to take into account under s.16BA Crimes Act 1914 (Cth) an offence of using a carriage service to transmit child pornography contrary to s.474.19(1)(a)(iii) Criminal Code (Cth) which, if prosecuted separately, was punishable by a maximum sentence of 15 years’ imprisonment.

4. [6]

   The sentences for the two Commonwealth offences (Sequences 10 and 11) were made partially accumulative with each other leading to an overall Commonwealth sentence of imprisonment for eight years to date from 15 August 2018, in relation to which her Honour fixed a single non-parole period of four years and six months commencing on 15 August 2018 and expiring on 14 February 2023.

5. [7]

   The total effective sentence imposed for the Commonwealth and New South Wales offences comprised imprisonment for 10 years and six months with an effective minimum term of seven years commencing on 15 February 2016 and expiring on 14 February 2023.

The Ground of Appeal

1. [8]

   The Applicant relies upon a single ground of appeal that, in determining the appropriate discount to reflect the value of the Applicant’s pleas of guilty for the Commonwealth offences in accordance with s.16A(2)(g) Crimes Act 1914 (Cth), her Honour did not have regard to the utilitarian value of the Applicant’s pleas of guilty for those offences.

2. [9]

   The Applicant requires an extension of time under s.10(1)(b) Criminal Appeal Act 1912 (NSW) to bring his application for leave to appeal against sentence.

3. [10]

   In this respect, the Applicant relies upon his affidavit affirmed on 26 April 2020 together with affidavits of Stephen Eccleshall, solicitor, affirmed 15 April 2020 and Suzanne Tezjan Knowles, solicitor, affirmed 5 May 2020. The explanation for the delay in bringing the application relates to the decision of this Court in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 and the impact of that decision upon the Applicant’s sentence.

4. [11]

   The discretionary power to extend the time limit to bring an appeal to this Court is legislative recognition that the interests of justice in a particular case may favour permitting an application for leave to appeal against sentence to be heard, notwithstanding that it was not brought within time. In determining what the interests of justice require, it is necessary to have regard to the prospects of success of the ground of appeal should the extension be granted: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [32]-[33], [44].

5. [12]

   Because of the decision of this Court in Xiao v R, the Crown accepted that there was merit in the Applicant’s ground of appeal so that an extension of time was not opposed.

6. [13]

   Having regard to the merits of the ground of appeal, an extension of time should be granted.

Facts of Offences

1. [14]

   A Statement of Facts was placed before the sentencing Judge, which her Honour utilised in making findings of fact, which were not challenged in this Court. Her Honour described the Applicant’s contact with the 14-year old victim, whom I will call “Amy”, which is not her real name, as she is entitled at law not to be identified: s.15A Children (Criminal Proceedings) Act (NSW). Her Honour summarised the offences under the Criminal Code (Cth) in Sequences 10 and 11 and the further offence taken into account on sentence under s.16BA Crimes Act 1914 (Cth). Her Honour said at (ROS2-4):

2. [15]

   The sentencing Judge explained Amy’s attempt to end contact with the Applicant and the Applicant’s subsequent efforts to contact her despite a direction from her father that the Applicant should desist (ROS4-5):

3. [16]

   Her Honour then recounted the Applicant’s offences under the Offenders Registration Act (NSW) in Sequences 3, 4, 5 and 6 and s.91H(2) Crimes Act 1900 (NSW) in Sequence 9 (ROS5):

4. [17]

   The Applicant remained in custody from the date of his arrest on 15 February 2016 and the sentences were backdated to commence from that day.

The Applicant’s History of Prior Offences

1. [18]

   The Applicant had a prior criminal history for similar offending. On 14 October 2008, he was sentenced at the Sydney District Court to a total effective sentence of 32 months’ imprisonment, with a non-parole period of 21 months, for offences of possession of child pornography (four counts) and using a carriage service to transmit child pornography (five counts).

2. [19]

   On 9 March 2012, the Applicant was sentenced at the Sydney District Court to a total effective sentence of imprisonment for four years and five months, with a non-parole period of two years, for offences of using a carriage service to groom a person under 16 years for sexual activity contrary to s.474.27(1) Criminal Code (Cth) and failing to comply with reporting obligations under s.17(1) the Offenders Registration Act (NSW) (two counts). The non-parole period expired on 8 March 2014.

3. [20]

   In passing sentence on 9 March 2012, his Honour Judge Frearson SC observed that the offences revealed “deliberate and blatant breaches of the legislation in relation to [the] State offences, legislation designed to protect the community and in particular, to protect the under aged” (ROS2).

4. [21]

   His Honour Judge Frearson SC described the Applicant’s offence under s.474.27(1) Criminal Code (Cth) (committed in September 2010) in the following way (ROS5):

5. [22]

   His Honour referred to a presentence report dated 4 November 2011 which revealed (ROS7):

6. [23]

   His Honour accepted that general deterrence and community protection were of particular significance for this class of offence (ROS9). Significantly, his Honour made the following finding (ROS9-10):

7. [24]

   It was against this background that the Applicant committed the present offences in early 2016. The assessment made by his Honour Judge Frearson SC in 2012 that the Applicant was “a high risk of re-offending” and that it was “highly likely that the community will be at risk upon his release” proved to be entirely correct.

The Applicant’s Subjective Circumstances

1. [25]

   The Applicant was born in December 1978. He was 38 years old at the time of the offences and at the time of sentence.

2. [26]

   The Applicant gave evidence at the 2017 sentencing hearing as did the Applicant’s mother.

3. [27]

   A presentence report dated 25 October 2017 of Rachel Curtis, Community Corrections officer, was tendered on sentence. Ms Curtis noted the Applicant’s statement that “he enjoys a positive and supportive relationship with his family” with this being confirmed by the Applicant’s mother. The author of the presentence report said with respect to the Applicant’s attitude to his offending:

4. [28]

   The presentence report contained the following assessment concerning the Applicant:

5. [29]

   A risk assessment report attached to the presentence report assessed the Applicant as being an above-average risk by reference to the STATIC-99R protocol.

6. [30]

   A report of Emma Hubner, psychologist, dated 18 September 2017 was tendered in the defence case on sentence. The Applicant informed Ms Hubner of his positive family background with no exposure to trauma or abuse. Ms Hubner assessed the Applicant to be a moderate-to-high risk of reoffending by use of the STATIC-99R protocol. After applying the STABLE 2007 risk assessment protocol, Ms Hubner placed the Applicant in the high range as to risk of reoffending. Ms Hubner expressed the following conclusion (paragraph 41):

Some Findings in the Sentencing Remarks

1. [31]

   It is appropriate to set out a number of findings made for the purpose of sentence.

2. [32]

   Her Honour Judge Huggett made the following findings concerning the possess child abuse material offence under s.91H(2) Crimes Act 1900 (NSW) in Sequence 9 (ROS6):

3. [33]

   Her Honour turned to the offences under s.474.27(1) Criminal Code (Cth) in Sequence 10 and s.474.19(1)(a)(iv) Criminal Code (Cth) in Sequence 11 (ROS6-8):

4. [34]

   The sentencing Judge made the following findings concerning the offences of failing to comply with reporting obligations under s.17(1) Offenders Registration Act (NSW) in Sequences 3, 4, 5 and 6 (ROS8-9):

5. [35]

   Her Honour made the following findings of fact which further illuminate the seriousness of the offences involving Amy, the young victim of the Commonwealth offences in Sequences 10 and 11 (ROS9-10):

6. [36]

   The sentencing Judge then outlined the Applicant’s subjective case and the evidence adduced at the sentencing hearing as well as his history of prior offending. Her Honour said in that respect (ROS12-13):

7. [37]

   The sentencing Judge considered the Applicant’s risk of reoffending and his prospects of rehabilitation, noting that the Applicant considered the Custody Based Intensive Treatment (“CUBIT”) program to have been “a waste of time” and of “no benefit to anybody” (ROS13-14):

8. [38]

   Her Honour made findings adverse to the Applicant with respect to remorse, insight and victim empathy (ROS14-15):

9. [39]

   The sentencing Judge took into account in the Applicant’s favour the conditions in which he was expected to serve his sentence in protection (ROS15). Her Honour had regard to the maximum penalties, sentencing statistics and past sentencing decisions together with the provisions in s.16A Crimes Act 1914 (Cth) and s.3A Crimes (Sentencing Procedure) Act 1999 (NSW) (ROS15-16).

10. [40]

    With respect to issues of accumulation, concurrence and totality, her Honour said (ROS16-17):

11. [41]

    In a passage which gives rise to the ground of appeal, her Honour had regard to the Applicant’s pleas of guilty in passing sentence for the New South Wales and Commonwealth offences (ROS17-18) (my emphasis):

12. [42]

    Her Honour addressed the “special circumstances” issue concerning the New South Wales offences in the following way (ROS18):

The Sole Ground of Appeal Asserting Error in the Approach to the Applicant’s Pleas of Guilty for the Commonwealth Offences

1. [43]

   Mr Brock, counsel for the Applicant, submitted that error had been demonstrated in accordance with the principles in Xiao v R as a result of the sentencing Judge’s non-quantification of a discount for the utilitarian value of his pleas of guilty for the Commonwealth offences. Whilst acknowledging that her Honour had taken into account the Applicant’s pleas of guilty for these offences, there had been no quantification of discount of the type undertaken for the New South Wales offences. It was submitted that error had been demonstrated and that this Court should move to resentence the Applicant.

2. [44]

   In light of the decision in Xiao v R, the Crown conceded that the ground of appeal should be upheld. It was accepted that it is appropriate to attach a utilitarian value to the Applicant’s pleas of guilty for the Commonwealth offences as well as the State offences.

3. [45]

   It remains a matter for the Court to determine whether error is demonstrated in accordance with the ground of appeal. It is the case that the sentencing Judge took into account the Applicant’s pleas of guilty for the Commonwealth offences (see [41] above). Consistent with the law as it stood in November 2017, her Honour attached a quantified discount of 25% for the Applicant’s early pleas of guilty for the New South Wales offences, but did not quantify the allowance to be made for the pleas of guilty for the Commonwealth offences to reflect the utilitarian value of the guilty pleas.

4. [46]

   I have considered whether her Honour’s approach to the Applicant’s pleas of guilty for the Commonwealth offences did, in any event, satisfy the requirements of Xiao v R. Having done so, I am satisfied that the ground of appeal should be upheld in this case.

5. [47]

   Applying the reasoning in Xiao v R, there is no good reason why a quantified discount would apply for the New South Wales offences but not the Commonwealth offences, to reflect the utilitarian value of the guilty pleas.

6. [48]

   I would uphold the ground of appeal.

Resentencing the Applicant

1. [49]

   In exercising its function under s.6(3) Criminal Appeal Act 1912, the Court should take into account all relevant matters, including evidence (if any) of the Applicant’s progress towards rehabilitation in the period since the original sentence was passed: Kentwell v The Queen at [43]; Betts v R (2016) 258 CLR 420; [2016] HCA 25 at [2], [11].

2. [50]

   The Applicant did not seek to place any further evidence before the Court in this respect, so that the Court is to consider the question of sentence by reference to the evidence adduced at the 2017 sentencing hearing.

3. [51]

   Mr Brock submitted that the Court should assess the objective seriousness of the Commonwealth offences in a manner which would see lesser sentences being imposed for those offences after allowing a 25% discount for the pleas of guilty and by reference, as well, to the magnitude of the sentences passed for those offences at first instance. Reliance was placed upon sentencing statistics as contained in a further affidavit of Ms Knowles affirmed 20 July 2020. Whilst acknowledging the limitations of the Applicant’s subjective case, Mr Brock submitted that a lesser overall sentence was appropriate in the circumstances of the case.

4. [52]

   The Crown submitted that these were offences of considerable objective seriousness, as the sentencing Judge had found, and that those findings should be retained for the purpose of resentencing the Applicant. The Crown accepted that there was no rational distinction to be drawn between the utilitarian value of the Applicant’s pleas of guilty for the New South Wales offences and the Commonwealth offences and that it would be open to the Court, when resentencing the Applicant, to allow a discount of 25% to reflect the utilitarian benefit of the Applicant’s pleas for the Commonwealth offences.

Decision

1. [53]

   For the purpose of the resentencing function under s.6(3) Criminal Appeal Act 1912, I am satisfied that the findings as to the objective gravity of the Commonwealth and New South Wales offences made by the sentencing Judge should be retained. I agree with the findings made by her Honour (as set out at [32]-[34] above) in that respect.

2. [54]

   The Commonwealth offences in Sequences 10 and 11 were serious examples of offences of this type. The offences involved a young and vulnerable girl who was subjected to sustained and predatory criminal communications from the (much older) Applicant for the purposes of his own sexual gratification.

3. [55]

   This Court has recognised the harm done to child victims of cybersex offences. In Kannis v R [2020] NSWCCA 79, with the concurrence of N Adams and Ierace JJ, I said at [126]-[128]:

4. [56]

   The Applicant’s offences involved a real child victim and cybersex crimes involving real victims render the offences more serious: R v Fuller [2010] NSWCCA 192 at [35], [45]; Kannis v R at [301], [304].

5. [57]

   The harm done to Amy as a result of the Applicant’s offences should be taken into account on sentence: Kebriti v R [2019] VSCA 275 at [23], [28]; Kannis v R at [304].

6. [58]

   In Adamson v R (2015) 47 VR 268; [2015] VSCA 194 at [55], Warren CJ, Redlich and Weinberg JJA emphasised a feature of offences of this type which gives primacy to the need for general deterrence and denunciation:

7. [59]

   In Director of Public Prosecutions (Cth) v Watson (2016) 259 A Crim R 327; [2016] VSCA 73 at [89], Redlich and Beach JJA referred to the gravity of cybersex offences and the requirement that significant weight be attached to general deterrence on sentence:

8. [60]

   The Applicant had a significant prior history of offences of this type for which he had been sentenced on two separate occasions to significant terms of imprisonment. The Applicant bears all the hallmarks of a hardened recidivist.

9. [61]

   Despite that background and his awareness of the need to comply with legal requirements under the Offenders Registration Act (NSW), the Applicant committed serious offences under that Act as well as further grooming and solicit child pornography offences involving a young child victim.

10. [62]

    Her Honour’s approach on sentence to the Applicant’s prior criminal history was clearly open in this case (see [36] above). In Gilshenan v R [2019] NSWCCA 313, this Court considered the sentencing of a child pornography offender with a prior history of offending of that type. The Court said at [60]-[62]:

11. [63]

    Unlike the offender in Gilshenan v R, the Applicant did not commit a lesser form of child pornography offence to that contained in his criminal history. As the extracts from the 2012 sentencing remarks of his Honour Judge Frearson SC make clear (see [21]-[23] above), the Applicant’s 2010 offences bear close similarities to the present offences involving Amy, where he acted in a predatory fashion using lines of electronic communication to contact and exploit a vulnerable young girl for his own sexual gratification.

12. [64]

    I have taken into account information concerning sentencing statistics for offences under ss.474.19 and 474.27 Criminal Code (Cth) as contained in the further affidavit of Ms Knowles affirmed 20 July 2020. That information indicates that, compared with other sentences, substantial sentences were imposed upon the Applicant for the offences contained in Sequences 10 and 11.

13. [65]

    This is understandable, however, for these were serious offences committed by a recidivist offender involving a vulnerable child victim who was exploited by the Applicant. Even when the victim’s father sought to intervene to urge the Applicant to desist, the Applicant’s response disclosed a callous and perverse approach on his part towards the family of the young girl (see [15] and [33] above).

14. [66]

    The Applicant has not demonstrated genuine remorse or insight and has shown little interest in custodial rehabilitation programs. As the sentencing remarks of her Honour Judge Huggett illustrate (see [37]-[38] above), this appears to be an established and apparently intractable attitude of the Applicant. He presents as an ongoing risk to the community against a background of earlier offending which has not deterred him from further serious crimes of this type.

15. [67]

    Substantial terms of imprisonment remain appropriate penalties for the purpose of sentencing the Applicant, noting that the offence under s.474.19(1)(a)(iii) Criminal Code (Cth) is to be taken into account on sentence for Sequence 11.

16. [68]

    That brings me to the question of the Applicant’s pleas of guilty for the Commonwealth offences.

17. [69]

    In Bae v R [2020] NSWCCA 35, with the concurrence of Bell P and Walton J, I said at [53]-[57]:

18. [70]

    What was said in Bae v R has been applied in subsequent decisions of this Court including Khalid v R [2020] NSWCCA 73 at [60] and Betka v R [2020] NSWCCA 191 at [57]-[59].

19. [71]

    At the time when Xiao v R and Bae v R were decided, s.16A(2)(g) Crimes Act 1914 (Cth) required a sentencing court to take into account “if the person has pleaded guilty to the charge in respect of the offence - that fact”.

20. [72]

    Section 16A Crimes Act 1914 (Cth) has been amended so that, since 20 July 2020, s.16A(2)(g) now provides that a sentencing court must take into account:

21. [73]

    In resentencing the Applicant, this Court should apply s.16A(2)(g) in its present form which gives effect to aspects of the utilitarian value of a guilty plea as described in Xiao v R and Bae v R.

22. [74]

    The Applicant’s guilty pleas for the Commonwealth offences were entered at an early stage of the proceeding when still before the Local Court. An effect of the pleas of guilty was that Amy and other witnesses were not required to give evidence at a trial. There was utilitarian value to the Applicant’s guilty pleas for the Commonwealth offences.

23. [75]

    The Applicant’s pleas of guilty did not reflect remorse or contrition on his part. The guilty pleas were entered in the face of an overwhelming Crown case against the Applicant. Any allowance for the pleas of guilty is to be confined solely to the utilitarian value of the pleas. The Applicant has not demonstrated contrition or remorse so that he is not entitled to a favourable finding under s.16A(2)(f) Crimes Act 1914 (Cth).

24. [76]

    The sentencing Judge took into account on sentence the fact that the Applicant’s pleas of guilty facilitated the course of justice with respect to the Commonwealth offences (see [41] above). In this way, her Honour allowed an unquantified benefit to the Applicant for his pleas of guilty for the Commonwealth offences. It is necessary to take this feature into account in now quantifying a discount for the utilitarian value of the Applicant’s pleas of guilty for the Commonwealth offences.

25. [77]

    It is not the case that there was a complete failure to give the Applicant credit for his pleas of guilty for the Commonwealth offences in the District Court. Rather, that aspect was taken into account in his favour, in an unquantified way, as part of the general mix of factors to be taken into account in the process of instinctive synthesis. Now that quantification is to be undertaken, regard must be had to that feature at first instance.

26. [78]

    I am satisfied that the sentences as imposed for all the State offences should stand. No submission was made to the contrary in this Court.

27. [79]

    With respect to Sequence 10, an offence punishable by a maximum penalty of 12 years’ imprisonment, I would apply a 25% discount for the guilty plea to a term of imprisonment for seven years and 10 months giving rise (after some rounding) to a sentence of five years and 10 months’ imprisonment.

28. [80]

    With respect to Sequence 11, an offence which carries a maximum penalty of 15 years’ imprisonment, after taking into account the further offence under s.474.19(1)(a)(iii) Criminal Code (Cth), in Sequence 2, I would apply a 25% discount to a head sentence of imprisonment for nine years and three months so that (after some rounding), the head sentence would be one of imprisonment for six years and 10 months.

29. [81]

    The two Commonwealth offences in Sequences 10 and 11 should be made partially accumulative with each other, leading to an overall Commonwealth sentence of imprisonment of seven years and 10 months. A single non-parole period should be fixed for these offences being a term of four years and five months.

30. [82]

    The total effective sentence for all offences will comprise a head sentence of 10 years and four months commencing on 15 February 2016 and expiring 14 June 2026, with a non-parole period of six years and 11 months which will expire on 14 January 2023.

31. [83]

    I am satisfied that no lesser effective head sentence and minimum term than this is warranted having regard to all the circumstances of the case and, in particular, the need for specific deterrence, general deterrence and protection of the community. This outcome will retain the approximate proportion between the effective full term and the minimum term for reasons expressed by the sentencing Judge (at [42] above).

Orders

1. [84]

   I propose the following orders:

2. [85]

   LONERGAN J: I agree with Johnson J.