Burbridge v R

1. [1]

   MACFARLAN JA: I agree with the orders proposed by Rothman J and with his Honour’s reasons. I add the following observations.

2. [2]

   I emphasise the following as particularly relevant to the correctness of his Honour’s conclusion, with which I agree, that the sentences imposed upon the applicant in this case are not manifestly excessive:

3. [3]

   The facts in cases in this field (as in others) will inevitably differ, sometimes markedly, making comparisons difficult. Nevertheless, it is appropriate to note that the sentences imposed in this case are by no means outside the range of sentences imposed by this Court in a number of recent child pornography and abuse cases when it has been necessary to resentence following a successful Crown appeal: in R v Linardon [2014] NSWCCA 247, the Court imposed a total term of imprisonment of 5 years with a minimum term of 3 years (although the offences included one of indecent communication to a child); in R v Martin [2014] NSWCCA 283, the Court imposed a total term of imprisonment of 5 years 6 months, with a minimum term of 3 years; in R v Porte [2015] NSWCCA 174, the Court imposed a total term of imprisonment of 2 years and 9 months, with a minimum term of 1 year and 6 months; in R v De Leeuw [2015] NSWCCA 183, the Court imposed a total term of imprisonment of 3 years with a minimum term of 1 year and 9 months.

4. [4]

   As the resentencing in these cases required this Court to impose sentences which it regarded as appropriate in all the circumstances, the sentences in question should not be treated as the highest sentences referable to the facts of those cases that would have withstood an appeal on the grounds of manifest excess if imposed by a lower court. As made clear in Rothman J’s judgment, the question in the present case is not whether the sentences imposed in the District Court are those which this Court would have imposed if called upon to sentence or resentence but whether any of the sentences or their totality is manifestly excessive. For the reasons above as well as those given by Rothman J, I do not consider this to be the case.

5. [5]

   ROTHMAN J: Tristan David Burbridge, the applicant, seeks leave to appeal against the sentence imposed on him in the District Court after a plea of guilty to five (5) charges.

6. [6]

   The applicant was charged and had a conviction recorded for the following counts:

   1. (1)

      Count 1 - use a carriage service to access child pornography material, contrary to s 474.19(1)(a)(i) of the Criminal Code Act 1995 (Cth) (“the Code”), which carries a maximum penalty of 15 years’ imprisonment and for which the Court below imposed a head sentence of 18 months’ imprisonment;

   2. (2)

      Count 2 – use a carriage service to transmit child pornography material, contrary to s 474.19(1)(a)(iii) of the Code, which carries a maximum penalty of 15 years’ imprisonment and for which the Court below imposed a head sentence of 18 months’ imprisonment;

   3. (3)

      Count 3 – produce child abuse material contrary to s 91H(2) of the Crimes Act 1900 (NSW), which carries a maximum penalty of 10 years’ imprisonment and for which the Court below imposed a fixed term of imprisonment of 6 months;

   4. (4)

      Counts 4 and 5 – possessing child abuse material, contrary to s 91H(2) of the Crimes Act for which the maximum penalty is 10 years’ imprisonment and for which the Court below imposed a fixed term of imprisonment of 18 months and 12 months respectively.

7. [7]

   Pursuant to the provision of s 19AC of the Crimes Act 1914 (Cth) (“the Commonwealth Crimes Act”), the sentencing judge issued a single recognizance release order for the Commonwealth offences, being a recognizance release order, fixing 9 months as the mandatory period of imprisonment before release, commencing at the same time as the first Commonwealth offence.

8. [8]

   The overall sentence for all State and Commonwealth offences, imposed by the court below, was described in the judge’s remarks as 4 years’ imprisonment, with the time in custody to be served being 2 years and 3 months. This was sought to be achieved by commencing the sentences for Counts 3, 4 and 5 at 23 June 2014, 23 September 2014 and 23 December 2014 respectively. Each of those sentences expired on 22 December 2014, 22 September 2015 and 22 June 2016 respectively. The two Commonwealth sentences commence on 23 December 2015 and 23 December 2016 respectively.

9. [9]

   The grounds of appeal are manifest excess and failure to apply the principle of totality appropriately, expressed in the following manner:

10. [10]

    As can be seen from the recitation of the offences and sentences, including the commencement dates and conclusion dates, the learned sentencing judge commenced the term for these offences on 23 June 2014 and commenced the last sentence (a federal offence for which an 18 month term of imprisonment was imposed) on 23 December 2016. As a consequence the overall head sentence concludes on 22 June 2018 (i.e. 4 years’ imprisonment) and the overall mandatory period of imprisonment (2 years and 3 months) concludes on 22 September 2016 (i.e. prior to the commencement of the final sentence).

11. [11]

    The provisions of s 16E of the Commonwealth Crimes Act apply the law of NSW relating to the commencement of sentences and the non-parole periods to the sentencing in NSW for a federal offence. It would seem that the provisions of s 47 of the Crimes (Sentencing Procedure) Act 1999 (NSW) apply to the commencement of any sentence imposed for a federal offence: Payda v R [2013] NSWCCA 109 at [50]-[60] and see Assafiri v R [2007] NSWCCA 159 at [11].

12. [12]

    The provisions of s 47(2), s 47(3) and s 47(4) of the Crimes (Sentencing Procedure) Act are in the following terms:

13. [13]

    Under the State legislation a sentence of imprisonment cannot be imposed so as to commence at a date later than the day of sentence, unless it is to commence no later than the earliest day on which the applicant “will become eligible to be released on parole” for any other sentence. If an offender were released as a result of a recognizance release, is the offender on “parole” within the meaning of the Crimes (Sentencing Procedure) Act? And, if so, is the restriction in s 47(4) of the Crimes (Sentencing Procedure) Act enacted as federal legislation, given the pointed absence of such a restriction in s 19 of the Commonwealth Crimes Act?

14. [14]

    Furthermore, even if a sentence of imprisonment were not prohibited by legislation from commencing in the future after an offender’s release on conditional liberty, ought it be done in other than exceptional circumstances? Does such a practice achieve the goals of transparency in sentencing and allow the prisoner and the public to understand the process?

15. [15]

    None of the foregoing questions have been raised by the parties in this appeal. Rather the appeal, understandably, concentrates on the effect of the overall sentence imposed and its alleged excess.

16. [16]

    Added to the foregoing complications is the operation of s 19AJ of the Commonwealth Crimes Act, which limits the operation of the provisions relating to the fixing of a single recognizance release order (or non-parole period) to Commonwealth offences and not to a combination of Commonwealth and State offences. In the structure of the sentences, the commencement of the recognizance release order is at the conclusion of a period that commences before any Commonwealth offence. Again, this is not a matter raised in the appeal. Nor could it be, because formally the mandatory imprisonment period for a Commonwealth offence starts when the first of them commences and has a 9 month duration.

Facts

1. [17]

   Before dealing with the grounds of appeal, it is appropriate to summarise the facts that have given rise to the offences and the Remarks on Sentence. The facts may be stated briefly.

2. [18]

   Following the monitoring of a website that publishes child abuse material, the Australian Federal Police (“AFP”) identified the applicant as a visitor to, or user of, the site.

3. [19]

   On 14 May 2013, the AFP executed a search warrant at the applicant’s residence and conducted preliminary investigations of electronic devices. The AFP officers identified a laptop computer containing problematic images and videos.

4. [20]

   The applicant admitted to the AFP officers that he had created an account with a child abuse website and had written a paedophilic story (Count 3); that he received emails containing paedophilic material (360 files) (Count 1); that he sent child pornography to others by email (41 emails with 213 files) (Count 2); and that he stored paedophilic material on his computer and USB drives (1,122 items) (Count 4).

5. [21]

   The applicant was charged with Counts 1-4 and, on 11 August 2013, granted conditional bail. One of the bail conditions was that the applicant not use or obtain access to the internet.

6. [22]

   On 19 February 2014, NSW police officers conducted a random check to ensure compliance with the bail conditions and uncovered another laptop containing paedophilic material (190 files) (Count 5). This conduct occurred, as is obvious, while the applicant was on conditional liberty.

7. [23]

   The applicant filed a Form 1, List of Additional Charges, containing one offence, being the possession of a prohibited drug (cannabis) to be taken into account in sentencing for Count 4.

Remarks on Sentence

1. [24]

   The sentencing judge held that the following matters were particularly relevant in assessing the seriousness of the offences generally: actual children were used in the material; the age of the children; the gravity of the acts performed and depicted; the depiction of over 300 different children; material was in the applicant’s possession primarily for his own purposes and, in relation to one of the offences, for non-commercial distribution; no sophisticated degree of planning; no collaboration with other persons; no risk that the material would be acquired by vulnerable persons; no risk that the material would be seen by persons susceptible of acting or being coerced to act in the manner depicted; and the material would be seen by persons with similar interests to the applicant. The offence was held to be below mid-range in objective seriousness.

2. [25]

   General deterrence was said to be of paramount importance and the offences, for that reason amongst others, were appropriate for a custodial sentence. The sentencing judge accepted that the offences formed part of a single course of conduct and could not be regarded as spontaneous or impulsive.

3. [26]

   The vulnerability and number of victims was not a factor the sentencing judge considered separately, as he had taken them into account in assessing the objective seriousness more generally.

4. [27]

   In considering subjective factors, the judge noted that the applicant suffered severe abuse and neglect as a child, although more recently his grandparents had provided him with a stable home. The sentencing judge referred to the report of Dr Furst, tendered by defence counsel, which concluded that the applicant developed paedophilic behaviour, in part, as a means of coping with loneliness and emotional distress and otherwise for sexual arousal.

5. [28]

   The applicant had no prior convictions and was a person of previous good character. While taking those factors into account, the sentencing judge commented that previous good character was to be given less weight in offences of this kind. Of course, as earlier stated, Count 5 occurred at a time when the applicant was on bail for the other counts, which qualifies the good character factor and the learned judge took that into account as an aggravating factor because of the need for specific deterrence.

6. [29]

   In further mitigation, the sentencing judge considered and took account of the applicant’s plea at the earliest opportunity and provided a 25% reduction for its utilitarian value for all offences and also took account of the applicant’s remorse and assistance in the investigation of the offences.

7. [30]

   The sentencing judge, taking into account the voluntary early intervention by psychologists, the two pre-sentence reports identifying programmes that may be available (one in particular), considered there were sound prospects for rehabilitation and that the risk of re-offending was medium.

8. [31]

   Lastly, the learned judge took account of the applicant’s exploitation of the anonymity of the internet to share child pornography with others and considered that each offence was to some extent distinct and required a degree of accumulation.

Submissions and Consideration

1. [32]

   The applicant submits that the sentences are manifestly excessive and the degree of accumulation too severe in that it does not adequately take totality into account. The question of whether a sentence is excessive (manifestly or otherwise) is a conclusion dependent on the outcome.

2. [33]

   Manifest error occurs when a sentence is excessive (or lenient) to an extent that there must have been error of principle or the misapplication of principle, even though none can be identified.

3. [34]

   It is not suggested that any finding of fact is wrong or that the judge relied on any mistaken view of the facts. Nor is it said that the judge failed to rely on any principle or mistook any principle. In other words, the applicant relies on manifest error.

4. [35]

   In order to do so, the applicant must show that the sentencing discretion miscarried, resulting in a sentence that is beyond the range of sentences that could be justly imposed for the offence and taking account of the subjective circumstances of the offender. In order for this Court to intervene, it is not sufficient that one or all of us may have sentenced differently or less severely or given less or more weight to one or more factors: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 at [22], [53]; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321; Wong and Leung v The Queen [2001] HCA 64; (2001) 207 CLR 584; Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15].

5. [36]

   In Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [25] Gleeson CJ, Gummow and Callinan JJ said:

6. [37]

   In Kentwell v the Queen [2014] HCA 37; (2014) 252 CLR 601, the plurality judgment confirmed the foregoing approach at [35], where the High Court said:

7. [38]

   The applicant relies on the conclusion of the sentencing judge that the offence is below mid-range; the overlapping nature of the offences (particularly “accessing” and “possessing” child abuse material); the lack of prior offences; the guilty plea; the positive prospects of rehabilitation and the applicant’s recent improvement in personal circumstances.

8. [39]

   Reliance was also placed on cases that were said to be comparable and on statistics. A court, particularly at appellate level, must be very cautious of using statistics, or even (although to a lesser extent) comparable cases. Each offence and offender is unique. The legislative guidepost is the maximum sentence and, if one exists, any standard non-parole period.

9. [40]

   Each of the factors relied upon by the applicant were matters that the sentencing judge considered. The offences were serious; the child pornography fell into the higher categories of depravity and there was a significant amount of it.

10. [41]

    There is a difference in seriousness between gaining access and possessing child pornography. A person may gain access once and in some cases it may be a prurient but experimental interest. If material is downloaded and possessed, there is greater and easier access and generally it discloses more continuing and greater interest. They are distinct offences, which, in these charges, relate to different material.

11. [42]

    Further a study of the comparable cases discloses head sentences that vary significantly and range between 18 months’ and 5 years’ imprisonment: R v Linardon [2014] NSWCCA 247; R v Porte [2015] NSWCCA 174; R v De Leeuw [2015] NSWCCA 183; and Fitzgerald v R [2015] NSWCCA 266.

12. [43]

    General deterrence is a most significant factor in offences of this kind and the criminal conduct goes beyond access and viewing for personal use to the production and distribution of child pornography and involves a large number of children and large amounts of material.

13. [44]

    No individual sentence involves manifest excess and the overall sentence is also within range. The submissions of accumulation were, for obvious reasons, repetitive of the submissions on manifest excess.

14. [45]

    The complaint about fixing sentences for the State offences to operate first and then accumulating the Commonwealth sentences is wholly without merit. It is an appropriate method of overcoming some of the complexities created by the interaction of the State and Commonwealth sentencing regimes, made more complex by the casuistry in the Commonwealth Crimes Act.

15. [46]

    As for the questions posed earlier in these reasons, as stated, they have not been raised by the parties. The overall sentence is appropriate and within range.

16. [47]

    Any difficulty associated with commencing a Commonwealth recognizance release order before the commencement of a sentence for a term of imprisonment to which the release order relates is not expressly prohibited by s 47(4) of the Crimes (Sentencing Procedure) Act as the prohibition therein deals with parole, which in the Commonwealth legislation is a different concept.

17. [48]

    In any event, the issue could easily have been resolved by fixing an aggregate sentence for the two Commonwealth offences. It is unnecessary to deal further with the issues.

18. [49]

    I propose the following orders:

    1. (1)

       Leave to appeal granted;

    2. (2)

       Appeal dismissed.

19. [50]

    BELLEW J: I agree with Rothman J. I also agree with the additional observations of Macfarlan JA.