Baden v R

1. [1]

   BELL P: The applicant was charged with and ultimately pleaded guilty to four Commonwealth offences and two State offences set out in the table below which also identifies the sentence imposed by the sentencing judge in respect of each Count:

2. [2]

   The elder child was born on 24 June 2005 and thus was between the ages of 6 and 11 years, and 9 and 10 years, respectively at the time the offences the subject of Counts 1 and 3 occurred.

3. [3]

   The younger child was born on 28 May 2009 and thus was between the ages of 2 and 7 years at the time of the offence constituting Count 2 and was 7 years old at the time of the offence constituting Count 4.

4. [4]

   Both of the children were female and lived in the Philippines with their mother who has received a sentence of 20 years’ imprisonment in the Philippines for what the sentencing judge described as “some of her complicity” in the applicant’s crimes. The Agreed Facts recorded that she was gaoled for “trafficking persons”, contrary to s 10(a) of the Republic Act 9208 of the Philippines.

5. [5]

   The first four offences were described by the sentencing judge as follows:

6. [6]

   The sentencing judge noted that:

7. [7]

   The State offences the subject of Count 5 related to some 858 Child Exploitation Tracking System (CETS) Scale Category 6 images found on a USB drive, primarily depicting anime illustrations of pre-pubescent females and hermaphrodites engaged in penetrative sexual acts with adult males. Count 6 related to the applicant’s possession of a hard drive containing some 1,144 files of still images and videos which attracted various CETS classifications.

8. [8]

   It is sufficient for present purposes to note, as the sentencing judge did, that the titles of some of the images, as recorded in the Agreed Facts, which were the subject of Counts 5 and 6 were described in terms that “would well warn any person accessing the images that the material [was] likely to be child abuse material.”

9. [9]

   It was accepted on appeal that the sentences of 10 and 12 months’ imprisonment respectively in relation to Counts 5 and 6 were within an appropriate range for these types of offences.

10. [10]

    On the Commonwealth offences, the sentencing judge determined that a non-parole period of 7 years was to date from 3 January 2019, resulting in the offender being eligible for release on 2 January 2026. That in turn resulted in an overall sentence for all offences of 11 years and 4 months with an overall non-parole period of 7 years and 4 months.

Proposed grounds of appeal

1. [11]

   The applicant seeks leave to appeal his sentence by reference to the following four proposed grounds of appeal:

   1. (1)

      The sentencing judge erred in her Honour's consideration of the pleas of guilty in relation to the Commonwealth offences.

   2. (2)

      The sentencing judge erred in her assessment of the objective seriousness of the offences.

   3. (3)

      The sentencing judge erred in her assessment of the subjective characteristics of the applicant.

   4. (4)

      Her Honour imposed a sentence that was unreasonable or plainly unjust (for reasons that may not be able to be discerned) and the sentences are manifestly excessive.

Ground 1

1. [12]

   Ground 1 relates to the sentencing judge’s consideration of the applicant’s pleas of guilty in relation to the four Commonwealth offences. In this respect, it is to be noted that these pleas were entered on 15 October 2018, being the first day of the trial. Although an earlier plea will invariably have greater utilitarian value, it has been recognised that a plea on the first day of the trial has some value that may be reflected in a discount on any sentence to be imposed, albeit that the value of such a plea will be reduced, with a discount of 10% usually being allowed in such circumstances: see Huang v R (2018) 96 NSWLR 743 at 757; [2018] NSWCCA 57 at [81]-[83] per Beazley P. (The applicant was given a 20% discount for his earlier pleas of guilty in respect of the State offences).

2. [13]

   The immediate context for the challenge to the sentence is supplied by this Court’s decision in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 (Xiao) in which it was accepted that the utilitarian value of a plea can be taken into account in sentencing in relation to Commonwealth offences. Prior to that decision, it had been the prevailing view in New South Wales, based on the decision in Cameron v R (2002) 209 CLR 339; [2002] HCA 6 (Cameron), especially at [11]-[22], that the utilitarian value of a plea could not of itself be taken into account in mitigation at sentence in respect of Commonwealth offences: see also Tyler v R (2007) 173 A Crim R 458; [2007] NSWCCA 247 at [110]-[114] per Simpson J (Spigelman CJ and Harrison J agreeing) (Tyler); Danial v R [2008] NSWCCA 15 at [27]-[28]; Lee v R [2012] NSWCCA 123; and R v Saleh (2015) 257 A Crim R 212; [2015] NSWCCA 299.

3. [14]

   In Tyler, Simpson J had said that Cameron (at [114]):

4. [15]

   The Xiao Court, comprising Bathurst CJ, Beazley P, Hoeben CJ at CL, McCallum and Bellew JJ, after a review of authorities which had either taken a different view to Tyler or questioned its correctness, relevantly held at [278] that:

5. [16]

   In Cameron, Gaudron, Gummow and Callinan JJ differentiated in terms between the utilitarian value of an early plea and an accused’s “willingness to facilitate the course of justice” which might be manifested in an early plea (see, for example, at [19]), even though the outcome or result of such a willingness may (and perhaps typically would) be a useful saving in time and expense, with obvious ramifications for the efficient deployment of scarce and valuable public resources. But an early plea may not be motivated by a willingness to facilitate the course of justice such as where, for example, it is actuated simply by an acceptance of the inevitable in the face of an overwhelming Crown case. In such a case, no discount would be justified on the subjective side of the sentencing exercise, but there would be an objective benefit which it has been recognised should attract a discount.

6. [17]

   Subsequent to Xiao, there have been (and continue to be) challenges to sentencing decisions which, following Tyler, did not take the utilitarian value of an early plea into account. In some of these cases, the sentencing decision pre-dated the decision in Xiao: see, for example, Obiekwe v R [2018] NSWCCA 55; Diaz v R [2019] NSWCCA 216 (Diaz); Application by Kangmin Bae pursuant to Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) [2019] NSWSC 1413. In a number of these cases, the Crown, quite properly, has conceded error, with the consequence that a resentencing is required in accordance with the principles in Kentwell v R (2014) 252 CLR 601; [2014] HCA 37.

7. [18]

   In the present case, Xiao had been handed down before the applicant was sentenced, and indeed both his and Crown counsel referred the sentencing judge to that decision in their respective written submissions. Thus, in paras 32-33 of the applicant’s submissions, it was put that Xiao required the court to take into account the utilitarian value of a guilty plea and that the utilitarian value of the guilty pleas in the present case was “very substantial”.

8. [19]

   Similarly, the Crown submitted in para 55 of its written submissions by reference to Xiao that “[t]he Court must have regard to the utilitarian value of a plea of guilty”, but went on to submit that the pleas should be given little weight for reasons which included their close proximity to the trial, a matter bearing directly upon any utilitarian value of the plea.

9. [20]

   Notwithstanding these references, it was submitted on appeal that the sentencing judge had failed to take into account the utilitarian value of the plea in her sentencing decision. This submission was based upon the following passage from her Honour’s Remarks on Sentence:

10. [21]

    The applicant submitted that these observations reflected the erroneous approach to sentencing that had been corrected in Xiao “by characterising the pleas of guilty as reflecting remorse, acceptance of responsibility and/or willingness to facilitate the course of justice” but not taking into account the utilitarian value of the early guilty plea. The applicant submitted that the second paragraph of the sentencing judge’s remarks on this topic, as reproduced above (at [20]), whilst showing that her Honour “accepted” that the saving of court time and the need for the victims to give evidence were the consequence of the pleas, did “not reflect that these were factors that operated upon the discount applied”.

11. [22]

    This was an ambitious submission. There is no basis, in my opinion, for concluding that the sentencing judge did not take the utilitarian value of the pleas into account. This was precisely what the second paragraph extracted above (at [20]) was addressing. The focus, as reflected in her Honour’s language, was on the objective and utilitarian benefits which flowed from the early guilty pleas, and was not on the subjective aspect of the pleas. This was the focus of the previous paragraph of her Honour’s remarks. The discount of 10% which her Honour applied was consistent with discounts given for the utilitarian value of pleas on the first day of a trial (see [12] above) and, given that the facilitation of justice which is brought about by a willingness to plead guilty early will in practical terms coincide with the utilitarian benefit thereby secured, there is no reason for thinking that the 10% discount did not take into account both subjective and objective factors cf. Diaz at [76].

12. [23]

    The fact that the sentencing judge was also expressly and clearly referred to Xiao in the written submissions both of the applicant and the Crown (see [18]-[19] above) also fortifies me in my conclusion that there was no relevant error.

13. [24]

    For these reasons, the first ground of appeal should be rejected.

Ground 2

1. [25]

   In ground 2, the applicant submits that the sentencing judge erred in her assessment of the objective seriousness of the offences. It is plain from the applicant’s written submissions, confirmed orally, that this ground relates only to the Commonwealth offences the subject of Counts 1-4, and not to the two State offences the subject of Counts 5 and 6 in respect of which there is no complaint concerning the assessment of objective gravity.

2. [26]

   The sentencing judge indicated that she regarded “each of the four Commonwealth offences as a mid-level representation of the offending falling within the offence provision”. In fact, even taking into account the 10% discount her Honour allowed, and noting that the sentences for each offence were not totally concurrent, it can nevertheless be seen from the table set out at [1] above that the sentences imposed in respect of the Commonwealth offences were well under 50% of the maximum sentence capable of being imposed in respect of each offence.

3. [27]

   In Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301 (Beattie) at [127], Price J, with whom Walton J agreed, identified some 14 factors of relevance to an assessment of the objective seriousness of offences against ss 272.8(2) and 272.9(2) of the Criminal Code 1995 (Cth). In my view, those factors apply equally to offences against ss 272.11 and 272.14 of the Criminal Code which are the subject of Counts 1-3 in the present case. The factors are as follows:

4. [28]

   A description, albeit sanitised, of the Commonwealth offences was given by the sentencing judge in the passages from her Honour’s Remarks on Sentence which I have extracted at [5] above. Her Honour’s reference to the “compounded depravity” constituted by the offences was entirely apt and fully justified in light of the sample extracts of instant messaging between the applicant and two children which occurred concurrently with video calls over Skype contained in the Agreed Facts for the purposes of sentencing. Her Honour’s description of the content of some of the dialogues as entailing “highly sexualised contact”, whilst accurate, does not fully capture the grossly explicit nature and tone of the interactions. It is not necessary to reproduce examples for present purposes, no issue being taken with the accuracy of her Honour’s description.

5. [29]

   It is also plain from some of the dialogues that the applicant was naked and masturbating on the webcam or Skype link whilst he was engaged in dialogue with the children or, at least, the elder of the two children, “elder” being used only in the most relative of senses.

6. [30]

   There is also at least one instance of the applicant indicating what he would like the two children to do to each other in one of their webcam sessions or perhaps in photographs to be sent to the applicant. Although there were no such photographs in evidence, it is apparent from at least one of the dialogues (on 31 January 2015) that the children sent and offered to send more “naughty pics” to the applicant. More generally, even if the dialogues do not expose explicit direction by the applicant as to what he wished the children to do, his exuberant participation and responses to what the elder child said and, it may be inferred, was doing on the webcam for the applicant’s perverted titillation could only be construed as active encouragement on his part.

7. [31]

   An element of what her Honour referred to as the applicant’s “compounded depravity” was the obvious exploitation of the children’s tender ages and their patent vulnerability. His statement on one occasion to the elder of the children that “I love you but I think some times you do what your mum is telling you :(” also suggests a consciousness of the exploitation of the children by their mother. Even if he had not said so expressly, the coarseness and explicitly sexual nature of some of the statements by the elder child in some of the dialogues strongly suggests, in light of her age, that she had been coached by some adult to use language that would appeal to the applicant’s sexual appetite and urges. It is hardly surprising that the applicant evidently thought that the children were being coached by their mother as to what to say and do. It was neither the normal conduct nor language of children of that age.

8. [32]

   In this context, it was an agreed fact that the applicant forwarded $26,286.93 to the children’s mother over the four year period covered by Counts 1 and 2, and that, as the sentencing judge observed in the passage set out at [6] above, the children were used and exploited by their mother to seek and receive money.

9. [33]

   The applicant, moreover, had an acute consciousness of the wrongdoing he was committing. In this context, one of the dialogues reproduced in the Agreed Facts records the applicant saying:

10. [34]

    It is against this background that the second proposed ground of appeal falls to be considered. Three broad points were raised in support of this ground.

11. [35]

    First, it was said that the payment of moneys (see [32] above) “could not be said to be directly sought to enable the offending behaviour”, the applicant submitting that the exchanges disclosed that the money was being used for medical and educational expenses of the family. Whilst it may be assumed that the money supplied may have been used for medical and educational expenses, its payment by the applicant was no act of selfless charity. It was conceded on the applicant’s behalf that it “might be said that it [the payments] served to ingratiate [the applicant] with the family generally”. Not only “might that be said”, there is an overwhelming inference that that was a correct characterisation.

12. [36]

    Moreover, a review of the sample dialogues shows that requests for money for particular purposes were frequently made at the same time or in close proximity to the ongoing sexual dialogues. Thus, on 19 February 2014 the elder child said:

13. [37]

    On 27 May 2014, within a week of the elder child writing “I want to make love you here in real daddy if we together because I love you more so much”, she requested money for her school enrolment.

14. [38]

    On 23 June 2015, the applicant messaged the elder child promising to send her money. A week earlier, this exchange had occurred between them with it being evident that the dialogue occurred at or soon after the elder child had showered:

15. [39]

    The applicant submitted that “there were no direct exchanges of money for the ‘sexual activity’” and put that, had there been, this “would be of more significance and offensive”. I do not agree with or accept this submission. In many respects, payments for the purposes of basic needs, such as medication and education, only serve to highlight the exploitative nature of the conduct and the taking advantage of not only human vulnerability (on account of the ages of the children) but their economic vulnerability. Furthermore and in any event, one of the payments was evidently for a computer with webcam so as to facilitate the ongoing interactions and offences.

16. [40]

    The second point raised by way of challenge to the sentencing judge’s assessment of the objective seriousness of the offences related to what was said to be the gradual nature of the grooming and the lack of physical proximity of the children to the applicant and the lack of any physical intercourse by reason of that fact. As to what was asserted to be the gradual nature of the grooming, I struggle to understand how this factor could assist the applicant, especially in circumstances where it was not as though the offences constituted the applicant’s first involvement with unlawful sexual interaction with children. The applicant had been convicted in 1992 on three counts of unlawful sexual intercourse in 1990 in relation to a 13 year old girl. There is no basis for thinking that what was characterised as grooming over a gradual period of time started out as innocent friendship and an instance of international or humanitarian charity, and only later morphed into the exploitative relationship which it undoubtedly became.

17. [41]

    The sentencing judge was cognisant of the lack of direct physical contact between the applicant and the children (although he had once physically met them in 2012). Her Honour said in this regard that:

18. [42]

    This observation reflects the fact that “sexual activity” is defined in the Dictionary of the Criminal Code as:

19. [43]

    As McClellan CJ at CL, with whom Price and Latham JJ agreed, said in R v Asplund Asplund v R [2010] NSWCCA 316 at [50], “[t]he need to protect children and young persons from predators using electronic facilities has been recognised by the Parliament in providing for these offences and must be enforced by the courts with sentences of appropriate severity.” In the Second Reading Speech for the Crimes Legislation Amendment (Sexual Offences Against Children) Bill 2010 (Cth), the Minister for Home Affairs had said:

20. [44]

    In Beattie, both Basten JA (at [21]) and Price J (at [126]) cited with approval the following observations of Moses LJ in R v Charnley [2010] EWCA Crim 1996; (2011) 1 Cr App R. (S.) 58 at [19]-[20] which I, too, would also endorse:

21. [45]

    The criminality involved in the present case was not, as was submitted by the applicant, “in the lower range”. Indeed, most of the factors identified by Price J in Beattie (see [27] above) were present, as senior counsel for the Crown correctly submitted by reference to the Agreed Facts.

22. [46]

    The third point relied upon by the applicant related to what were said to be comparative sentences in various recent decisions in Victoria and New South Wales where the sexual activity involved sexual intercourse or multiple children. The sentences imposed in all of these cases turned on their own facts including the personal circumstances of the offender, degrees of contrition and other subjective circumstances. No detailed submissions were advanced as to why the sentences imposed in the present case were disproportionate in comparison to other cases which had been identified by the Crown in its Schedule of cases, save that in written submissions, counsel for the applicant accepted that “there are very limited statistics available in this area and … very few reported decisions that correspond with the offences sought to be reviewed.”

23. [47]

    Bearing in mind the various matters highlighted above demonstrating the objective seriousness of the offences with which the applicant was charged and to which he ultimately pleaded guilty, the maximum penalties available for those offences, the paucity of comparable sentences and the necessarily inexact nature of the sentencing process (see Everett v R (1994) 181 CLR 295 at 307; [1994] HCA 49 per McHugh J), I see no error in the sentencing judge’s assessment of the objective seriousness of the Commonwealth offences.

Ground 3

1. [48]

   This ground entails a challenge to the sentencing judge’s assessment of the applicant’s subjective circumstances and, in particular, his prospects of re-offending and rehabilitation. In this regard, counsel for the applicant drew attention to the following passages from the sentencing judge’s Remarks on Sentence:

2. [49]

   Her Honour’s assessment was, in my opinion, not only open to her but correct. The reference to the applicant’s awareness of his actions picks up the matters I have highlighted at [33] above. Her Honour’s conclusion, in my opinion, is further buttressed by the applicant’s initial statement to the authorities that he thought that he was conversing with the children’s mother in his extensive exchanges. Not only was that palpably false, but it is inconsistent with any recognition of guilt and willingness to accept the seriousness of his offences. The same may be said of his false statement to a psychologist (Mr Machlin) that he had “an ongoing attraction to girls around the age of 14 to 16”. Again, this demonstrates either deliberate deception and non-acceptance of the fact that he had been engaging with girls much younger than 14 to 16, or complete delusion and an abject lack of self-awareness on his part.

3. [50]

   Her Honour, in assessing the applicant’s prospects for rehabilitation, did not accept the more optimistic assessment of Mr Machlin. She was not obliged to do so and gave reasons for not doing so, including the matter I have referred to immediately above. Her Honour said of Mr Machlin’s report:

Ground 4

1. [51]

   The fourth proposed ground of appeal was that the sentencing judge imposed a sentence that was unreasonable or plainly unjust (for reasons that may not be able to be discerned) and the sentences are manifestly excessive.

2. [52]

   Written submissions in support of this ground were exiguous in the extreme and simply parroted the language of various cases such as R v MAK and MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 and R v WC [2008] NSWCCA 268 without making any attempt to explain why the sentence imposed was “disproportionate to the offending” and “may [be] considered a crushing sentence”.

3. [53]

   A submission advanced at this level of absolute generality is of no assistance to the Court and adds nothing to the case. If it is meant simply as an omnibus submission by reference to the three grounds that had preceded it, I would reject it for the reasons already given for rejecting those grounds. If it were meant as something else, no submissions were advanced to support or elucidate the ground.

Conclusion

1. [54]

   For the foregoing reasons, I would refuse leave to appeal.

2. [55]

   WALTON J: I agree that leave to appeal should be refused for the reasons given by Bell P.

3. [56]

   JOHNSON J: I agree with Bell P.