R v Freedman

1. [1]

   LEEMING JA: I have had the advantage of reading the judgment of Bellew J, which fully sets out the charges, the nature of the offending, the proceedings before the sentencing judge and the issues and submissions arising on this Crown appeal, and which enables me to be relatively concise.

2. [2]

   The sole ground of appeal was that the sentence imposed – two wholly concurrent Intensive Correction Orders for periods of 12 and 15 months commencing 10 March 2017 – was manifestly inadequate for offending contrary to federal law for using a carriage service to access child pornography, and possessing child abuse material contrary to New South Wales law.

3. [3]

   The offending involved Mr Freedman downloading child abuse and child pornography material over a period exceeding 12 months from the so-called “Dark Net” made accessible via a browser specially installed by him. The quantity of image and video files was substantial. The large majority were located on a portable hard drive, and it was agreed that that drive contained 486-594 images and 241-372 video files which were child pornography and child abuse material. While the number of files was in the hundreds rather than the thousands (as is common in cases of this nature which come before this Court), a relatively large number were in the worst categories. On the portable hard drive, 133 images and 63 video files were classified within the Child Exploitation Tracking System (CETS) as Level 4 involving penetrative sexual activity involving children and other children or adults, and 11 images and 2 video files were CETS Level 5 (sadism, humiliation or bestiality).

4. [4]

   In order to put those numbers in context, it is important to understand that even images and videos in the lowest category (CETS Level 1) are gravely offensive and depraved. It is as well to repeat what was summarised by Neave and Kyrou JJA in Director of Public Prosecutions (Cth) v Zarb (2014) 46 VR 832; [2014] VSCA 347 at [30]:

5. [5]

   In addition, Mr Freedman had, in 2010, pleaded guilty to two counts of aggravated sexual assault upon a child under 16, two counts of aggravated indecent assault upon a child under 16 and 3 counts of committing an act of indecency upon a child under 16. That earlier offending (which had taken place in 2003) had caused him to be placed on the Child Protection Register established under s 19 of the Child Protection (Offenders Registration) Act 2000 (NSW), which in turn entitled police officers to enter onto his premises without notice for the purpose of verifying information including his internet service provider and type of connection to the internet (s 16C read with s 9(1)(n) and (o)). It was agreed that it was in the exercise of those powers that police called upon the offender at home in May 2016.

6. [6]

   It is true that Mr Freedman co-operated thereafter, giving access to his computers and portable hard drive, pointing out where the offending files were located, and pleaded guilty at the earliest occasion. It is also true that Mr Freedman could point to some subjective matters in his favour (his father died when he was five, and he reported difficulties with his relationship with his mother and stepfather). Yet it was clear at all times that an appropriate exercise of the sentencing power would highly likely involve a full-time custodial sentence.

7. [7]

   The sentencing hearing proceeded on the basis, in accordance with authority binding in this State, that a full-time custodial sentence would ordinarily be warranted unless Mr Freedman could establish that his was an exceptional case. His counsel’s opening submission was:

8. [8]

   The Crown had made it clear that, in its view,

9. [9]

   Nevertheless, in deference to the application made by Mr Freedman, the sentencing judge directed the preparation of an Intensive Corrections Assessment and stood the matter over until 10 March 2017.

10. [10]

    The sentencing judge did not approach the matter on the basis that a full-time custodial sentence should be imposed absent exceptional circumstances. His Honour made no reference to, still less a finding of, any exceptional circumstances. Indeed, as Bellew J has observed, there were no findings at all in relation to Mr Freedman’s subjective case. Instead there was merely a lengthy recitation of the references and reports tendered on his behalf, and a conclusion that “I have considered all those matters personal to the offender which I have already set out and he is capable of rehabilitation”.

11. [11]

    I consider that the sentence imposed was manifestly inadequate. In R v De Leeuw [2015] NSWCCA 183 at [72], Johnson J (with the agreement of Ward JA and Garling J) said that:

12. [12]

    That principle has been followed subsequently: see for example R v Turvey [2017] SASCFC 28 at [134]. True it is that some courts have distanced themselves from aspects of that formulation, although it may be that the controversy is largely or wholly verbal rather than substantial. This was addressed in Director of Public Prosecutions (Cth) v Garside [2016] VSCA 74 at [62], where Redlich and Beach JJA concluded, after reviewing the authorities, that:

13. [13]

    Even if, favourably to Mr Freedman, the formulation in Garside is applied, this is self-evidently a case where a term of immediate imprisonment was warranted. The quantity of images and videos was substantial, they included some 200 in the most degrading and depraved categories, they had been downloaded over a period in excess of 12 months using a browser obtained for that purpose, and Mr Freedman was a man who had previously pleaded guilty to sexual offences against children and whose subjective case otherwise lacked any especially significant features militating against a sentence of imprisonment.

14. [14]

    I also agree with what Bellew J has written concerning each of the three specific errors to which the Crown pointed. Strictly speaking, I do not regard them as “particulars” of a ground of manifest inadequacy. That formulation invokes the final category of error listed in House v The King (1936) 55 CLR 499 at 505, where error is to be inferred by reason of the order made that there has been a failure properly to exercise the discretion. As Gleeson CJ and Hayne J said in Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6],

15. [15]

    However, I respectfully disagree with Bellew J in relation to the exercise of the residual discretion.

16. [16]

    The threshold for intervention (in this case, a manifestly inadequate sentence) having been established, it remains necessary for the Crown to demonstrate that the discretion should be exercised: CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 at [33] and [66]. In the present case, the principal matters bearing upon the discretion are delay, the absence of any real explanation for the delay and the prejudice to Mr Freedman.

17. [17]

    An assessment of the impact of delay turns in large measure on whether or not it is explained, and, especially, on whether the delay has been brought about through no fault of the respondent. In Director of Public Prosecutions (Vic) v Karazisis (2010) 31 VR 634; [2010] VSCA 350 at [108], a passage noted by the High Court in Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [72], Ashley, Redlich and Weinberg JJA said:

18. [18]

    Sentence was imposed on 10 March 2017. A notice of appeal against the sentence imposed for the possession offence was not filed until 15 May 2017, and served the following day. There was a slight additional delay in the service of a separate appeal by the Commonwealth Director of Public Prosecutions, but nothing turns on that. On 25 May 2017, the Registrar fixed the hearing for 4 August 2017, and made procedural directions for service of submissions, which led to the Crown’s submissions being filed in early July. The evidence does not disclose whether an earlier date was available, or whether the Crown was able to file its submissions any earlier than it did (on 7 July 2017) and so I proceed on the basis that 4 August was the first available date, with a timetable for submissions derived from that date.

19. [19]

    It follows that the delay from 15 May until now is to be regarded as an inherent consequence of the bringing of a Crown appeal. The delay which calls for explanation is the period from 10 March until 15 May, which is slightly more than 9 weeks.

20. [20]

    To the extent that the Crown sought to explain that delay, the explanation was was concededly only a partial one. It was that requests for the remarks on sentence were made by someone within the Office of the Director of Public Prosecutions on 23 and 31 March (this request was said by whoever made it to be “a matter of urgency”) and 2 May, and the remarks were not received until 10 May.

21. [21]

    Commencing a Crown appeal against sentence is no trivial matter. There will be cases – quite possibly, the majority of cases – where the power to commence a Crown appeal cannot properly be exercised until regard is had to the remarks on sentence (either in their final form, or as summarised by the lawyers attending on behalf of the Crown). This is not one of those cases.

22. [22]

    Here, counsel appearing for the Crown attended both days of the sentencing hearing. On the first day, over counsel’s opposition, the sentencing judge directed that a report as to the suitability of an Intensive Correction Order be obtained. On the second day, counsel knew immediately upon the order being made that it was a sentence which was, on the Crown’s submission, unavailable.

23. [23]

    So far as I can see, there was no need for any further information in order to make the decision to file a notice of appeal based on the sentence being manifestly inadequate. The ground of appeal was – and is – manifest inadequacy, and that ground does not turn on identifying specific error. But in any event, the issue is not one for speculation. The Crown bears the onus to explain why it took more than 9 weeks to file an appeal, and the Crown adduced no evidence to explain why no step could be taken without first obtaining the remarks on sentence.

24. [24]

    Even if either or both Directors of Public Prosecutions or their delegates required information as to the reasons given by the sentencing judge, there is nothing in the evidence adduced by the Crown to displace the ordinary presumption that the lawyers attending would have taken notes of the remarks given by his Honour. The point of their doing so is to enable advice – including advice as to the appropriateness of a Crown appeal – to be given promptly.

25. [25]

    Even if for some bureaucratic reason an appeal could not be commenced without first obtaining the remarks on sentence, there is no explanation at all for why the ordinary course of notification by letter that a Crown appeal was being considered was not followed in the present case. This was raised during the appeal:

26. [26]

    (To be clear about it, counsel for the Crown’s response over-stated the evidence. The evidence did not disclose that any consideration had been given to doing anything, apart from seeking the transcript. Nor did the evidence disclose why it took 13 days to make the decision to apply for the transcript.)

27. [27]

    The delay in this case appears to be longer than any other recent Crown appeal. Counsel was unable to point to any comparable case where a Crown appeal had been brought from an Intensive Correction Order.

28. [28]

    The closest comparators are cases where an Intensive Correction Order has been imposed for the same offences, and the Crown has appealed. In R v Porte, 28 days elapsed between the imposition of an Intensive Correction Order and the filing of an appeal, and that had been preceded by notification of an intention to bring an appeal: see at [4]-[5]. In R v De Leeuw, appeals were filed 28 days after the imposition of an Intensive Correction Order: see at [3] and [66].

29. [29]

    Another recent example of a Crown appeal based on the manifest inadequacy of an Intensive Correction Order is R v Jafari [2017] NSWCCA 152, where, once again, 28 days elapsed between the imposition of sentence and the filing of an appeal: see at [3]-[4].

30. [30]

    It may be noted that those periods accord with the fact that in most civil litigation, parties have around 28 days to exercise a right of appeal from a final judgment or order. Of course, on occasion Crown appeals are brought, or at least notification of an intention to do so, more quickly still. See the periods of seven days, nine days, and less than a week, in R v Cidan [2014] NSWCCA 66 at [104] and R v Mulligan [2016] NSWCCA 47 at [45].

31. [31]

    I agree with Bellew J that the evidence adduced by Mr Freedman was less comprehensive than might have been expected in the circumstances. Yet there was no objection to it, and the Crown confirmed that it did not seek to cross-examine either Mr Freedman or Dr Powell. I do not disagree with any of the criticisms made by Bellew J of that evidence. However, in the absence of objection or challenge, the discretion falls to be exercised on the basis that there is no complaint about Mr Freedman’s service of the first five months of the Intensive Correction Orders, during which he has been performing the community service required of him, attending the Community Corrections Office, attending counselling fortnightly with his caseworker and otherwise complying with those orders.

32. [32]

    In addition, and (so far as the evidence discloses) over and above compliance with the Intensive Correction Orders, Mr Freedman has attended group sessions conducted by Dr Powell weekly, and individual sessions monthly. Dr Powell’s unchallenged evidence is that:

    1. (1)

       “Mr Freedman’s progress in treatment is good and all that could be expected at this stage”; and

    2. (2)

       “Replacing a community-based ICO with a full-time custodial sentence will have a severe negative impact on the current treatment with Mr Freedman and his prospects for rehabilitation”.

33. [33]

    In relation to the last point, both Dr Powell and Ms Addlem agreed that because (based on a relatively crude actuarial measure) Mr Freedman was of “low-medium” risk of re-offending, he would be unlikely to qualify to receive treatment in custody under various sex offender treatment programmes unless his sentence exceeded 2 years.

34. [34]

    Dr Powell also gave the following unchallenged evidence of his treatment program:

35. [35]

    Further, shortly after sentence was imposed, Mr Freedman was directed to move to different premises (seemingly because there were children in the apartment complex where he had been living). He did so, taking out a six month lease of premises which were to the satisfaction of Community Corrections. This occurred before he received notification that an appeal had been brought. There will thus be some pecuniary cost and personal inconvenience to Mr Freedman if the appeal is allowed. In the scheme of things, given the seriousness of his offending, I do not place great weight on that. However, both from the perspective of Mr Freedman, and also from the perspective of a lay person looking at the operation of the legal system, there is some measure of inconsistency in the government on the one hand requiring Mr Freedman to move and approving his lease of different premises and on the other hand invoking this Court’s jurisdiction to impose a full time custodial sentence upon him.

36. [36]

    The sentence imposed was not, with respect to the sentencing judge, one which was reasonably open having regard to all the facts of this case. This is the consideration which has troubled me most. It is of concern that the dismissing a Crown appeal by reason of the residual discretion in a case such as this will result in an offender receiving an unduly lenient sentence through error at first instance, and then to continue to receive the benefit of that unwarranted leniency through delay by the Crown coupled with prejudice to the offender.

37. [37]

    There are undoubtedly cases where a sentence is so inadequate that even where there has been substantial delay and prejudice, the Crown will discharge its onus of demonstrating that the discretion should be exercised. Director of Public Prosecutions (Cth) v Afford [2017] VSCA 201 at [53]-[55] and [77] is a recent example.

38. [38]

    In the present case, this Court’s reasons will serve the public interest of correcting the error made by the sentencing judge in relation to future cases. And there is unchallenged evidence that allowing the Crown’s appeal will have a severe negative impact upon Mr Freedman’s rehabilitation. Those were the two matters to which French CJ, Crennan and Kiefel JJ referred in Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [2]. Once it be accepted that Crown appeals are subject to a residual discretion which is only enlivened after appellable error is made out, it must follow that there will be cases when, in the proper exercise of that discretion, erroneous sentences are permitted to stand uncorrected.

39. [39]

    Further, in the present case, the delay is large. Waiting more than two months before giving any indication to an offender of a Crown appeal, in circumstances when the Crown had submitted to the sentencing judge that the sentence was not properly available, in a case which is as stark as this one, calls for an explanation. And there is a public interest in holding the Director of Public Prosecutions, in whom is vested the right and heavy responsibility of bringing a Crown appeal, to high standards.

40. [40]

    I consider the exercise of the residual discretion to be quite finely balanced. However, ultimately I have concluded that I should accept Mr Freedman’s submission, which was made by reference to Garside at [82]:

41. [41]

    Mr Freedman submitted that “In the present appeal, the respondent commenced his treatment and rehabilitation soon after his arrest in May 2016, some 15 months ago, and has now completed 5 months of his ICO, involving intensive, directed treatment and community service.” To that I would add that (a) in contrast with the “potential” disruption of rehabilitation progress which was relied on by Redlich and Beach JJA in Garside, the unchallenged evidence in this appeal is that the disruption would be certain and severe, (b) the period during which Mr Garside had served a Community Correction Order was also (as at the time the appeal was heard) some five months and (c) in Garside there appears to have been no complaint as to the delay (see at [76]).

42. [42]

    Notwithstanding the inadequacy of the sentence, I would dismiss the Crown appeal in the exercise of discretion.

43. [43]

    BELLEW J: On 31 October 2016 Michael Ian Freedman (“the respondent”) pleaded guilty in the District Court to an indictment containing the following counts:

    1. (1)

       Between 1 January 2015 and 10 May 2016, at Batehaven in the State of New South Wales, did commit an offence, in that he did use a carriage service to access material and the material is child pornography material.

    2. (2)

       On 10 May 2016, at Batehaven in the State of New South Wales, did possess child abuse material.

44. [44]

    The offence in count 1 was contrary to s. 474.19(1) of the Criminal Code 1995 (Cth) (“the Code”). The maximum penalty for that office is imprisonment for 15 years. The offence in count 2 was contrary to s. 91H(2) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is imprisonment for 10 years and there is no prescribed standard non-parole period.

45. [45]

    On 10 March 2017 the respondent was sentenced by his Honour Judge McLoughlin SC as follows:

46. [46]

    His Honour further ordered that the two sentences be served wholly concurrently.

47. [47]

    By notice dated 23 May 2017, the Commonwealth Director of Public Prosecutions appealed against the sentence imposed in respect of count 1, on the ground that it was manifestly inadequate. By notice dated 12 May 2017 the NSW Director of Public Prosecutions appealed against the sentence imposed in respect of count 2 on the same ground. As discussed further below, the Crown points to three specific errors on the part of the sentencing judge which, it is submitted, resulted in the imposition of a manifestly inadequate sentence.

The circumstances of the offending

1. [48]

   The sentencing judge found the circumstances of the offending to be as follows (commencing at ROS 1):

2. [49]

   The respondent gave evidence before the sentencing judge. He admitted (at T5 L18-20) that he had been downloading the material which was found in his possession for approximately 12 months. He was then asked in evidence in chief (commencing at T5 L22):

3. [50]

   The respondent also told the sentencing judge (at T10 L28-35) that during the period of offending he had “sort of half convinced” himself that his crimes were victimless. The effect of his evidence was that he had now revised that thinking, and appreciated that such categorisation of his offending was an error. He was then asked by the sentencing judge (commencing at T12 L29):

4. [51]

   In cross-examination the respondent agreed (at T12 L45-46) that he was aware at the time of his offending that he was committing criminal offences. However he denied (commencing at T12 L48) that he had taken deliberate steps to hide his offending by placing the images he had downloaded in a file on his computer entitled “guitar lessons”.

5. [52]

   The respondent also rejected the proposition put to him in cross-examination (commencing at T13 L6) that he had particular technological expertise which he had utilised for the purposes of committing the offences. He said, in particular, that the images that he had located were readily accessible to anyone. However, he conceded (commencing at T13 L14) that it was necessary for him to download a particular program onto his computer in order to access the images, and that those images were located on the “dark web”:

6. [53]

   The respondent was then asked (commencing at T13 L39):

The respondent’s subjective case on sentence

1. [54]

   The following documents were tendered in the respondent’s case:

2. [55]

   Mr Elliott met the respondent three years ago through a business connection. He described being “more than a little surprised” when informed of the charges brought against the respondent, and described him as being “deeply affected and remorsefull (sic)” by what he had done. Mr Elliott expressed his ongoing support for the respondent.

3. [56]

   Dr Kariotis saw the respondent on 16 May 2016 when he had “presented with an exacerbation of underlying depressive illness due to current life stressors, specifically…police/legal issues”. On that occasion the respondent was commenced on anti-depressant medication and referred to Tim Golding, Clinical Psychologist. At a second consultation on 25 October 2016, the respondent informed Dr Kariotis that medication and counselling had been beneficial. Dr Kariotis formed the view at that time that the respondent’s anxiety symptoms had all but resolved, but that he would need ongoing support.

4. [57]

   Mr Golding’s report confirmed that he met with the respondent for seven sessions following the referral from Dr Kariotis. He confirmed that the respondent suffered from a mood disorder with anxiety, and stated:

5. [58]

   Dr Powell’s report recorded that the respondent had attended for assessment on five separate occasions between July and October 2016. He described the respondent’s participation as satisfactory and noted that he was to commence group treatment shortly. In paragraph 12 of his report, under the heading “Self-assessment tools”, Dr Powell said:

6. [59]

   Dr Powell described the respondent as having a passive personality which rendered him “extremely prone to avoid deep interpersonal relationships and move into deviant psychosexual behaviour”. He went on to describe (at (24)) that the respondent had come from “an extraordinarily dysfunctional” family, characterised by abuse, conflicted relationships and a relationship with his stepfather in which he (the respondent) was constantly belittled.

7. [60]

   Against this background, and in respect of the circumstances of the offending, Dr Powell stated the following (commencing at (28)):

8. [61]

   Dr Powell assessed the respondent’s risk of reoffending as low-moderate. He concluded that the respondent was suffering a serious attachment disorder, resulting from a dysfunctional upbringing characterised by abuse. He concluded that the respondent’s childhood had negatively impacted on his life, but that he had worked hard since his initial treatment to build a positive life for himself.

9. [62]

   Notwithstanding the nature of the offending, Dr Powell expressed the opinion (at (40)) that the respondent did not indicate having a primary sexual focus on children or adolescents. He concluded (at (43)) that there was no evidence that the respondent was a paedophile but that in the absence of treatment, he was a low to moderate risk of reverting to that type of behaviour. He further concluded (at (48)) that there was a requirement to implement a treatment plan in which the respondent would need to continue to explore aspects of his psycho-sexual development. Dr Powell did not diagnose the respondent as suffering from any form of mental illness. To a large extent, his report did little more than recount the history he was given by the respondent.

10. [63]

    In the course of giving evidence before the sentencing judge, the respondent made reference to some of the matters canvassed in Dr Powell’s report and said (commencing at T6 L46) that with the assistance of Dr Powell, he had addressed a number of relevant issues. It was put to the respondent in cross-examination (commencing at T14 L45) that his decision to consult with Dr Powell had been brought about solely by the fact of his arrest. Whilst the respondent accepted that the commencement of such treatment had been triggered by his arrest, he denied that he had undertaken such treatment for the purpose of obtaining favourable evidence which could be put before the sentencing judge. He also disagreed (at T15 L21-22) with the proposition that in seeking assistance from Dr Powell, he was motivated solely by the prospect of lessening any sentence which might be imposed. He said (at T14 L50) that he regarded his arrest as “a sign” that he needed help. When it was put to him (at T15 L4) that the contact with Dr Powell could have been put in place prior to his arrest, the respondent replied:

11. [64]

    The report of Ms Addlem noted that the respondent described the commission of the offences “as a form of escapism and mood management” and that he had “felt a compulsion to collect the material”. Ms Addlem went on to say that the respondent stated that he had felt that these were victimless crimes, but that with the assistance of treatment he appeared to “now realise that the material consisted of many innocent victims”. The respondent told Ms Addlem that he was now aware that by viewing material of this nature, the abuse of those children appearing in it was being perpetuated. She assessed the respondent as being a low/medium risk of reoffending.

12. [65]

    In terms of his “escapism”, the respondent gave the following evidence before the sentencing judge (commencing at T7 L8):

The respondent’s criminal history

1. [66]

   On 4 June 2010, the respondent appeared before the District Court at Lismore in respect of the following offences (all of which were committed in 2003):

2. [67]

   All matters were dealt with by way of pre-trial diversion for a period of 2 years commencing on 27 April 2010, with an undertaking by the respondent to continue with a diversion program at “Cedar Cottage”. On 13 August 2012, the respondent appeared before the Penrith Local Court on 2 counts of failing to comply with his reporting obligations. He was given the benefit of a bond under s. 9 of the Crimes (Sentencing Procedure) Act 1999 on that occasion.

3. [68]

   In his evidence before the sentencing judge (commencing at T4 L37) the respondent confirmed having undertaken the program at Cedar Cottage and explained that he had failed to attend his annual review in respect of inclusion on the child protection register. He was asked (commencing at T5 L7):

The reasons of the sentencing judge

1. [69]

   Having outlined the facts of the offending, the sentencing judge set out the detail of the images found in the respondent’s possession (commencing at ROS 3):

2. [70]

   His Honour then said (commencing at ROS 4):

3. [71]

   Although not expressly stated, in that part of his remarks set out at [70] above, his Honour appears to have been making some assessment of the objective seriousness of the offending. Some confusion arises from his Honour’s observation that the offences were “well below the middle of any scale constructed for such offences”. In particular, it is not clear whether, in making that observation, his Honour was referring to the CTS levels which are adopted for the purposes of categorising the seriousness of images of the kind accessed and possessed by the respondent, or a putative scale of objective seriousness of this type of offending. Assuming it was the latter, the Crown took issue with the proposition that the offending fell “well” below the mid-range of objective seriousness.

4. [72]

   His Honour then dealt with the respondent’s subjective case. Having noted aspects of the respondent’s background, his Honour made reference to his criminal history. Having done so, his Honour said (at ROS 5):

5. [73]

   The sentencing judge then dealt with the medical and testimonial evidence (commencing at ROS 5). He summarised the report of Dr Powell at considerable length (commencing at ROS 6) before summarising the report of Ms Addlem (commencing at ROS 10). His Honour concluded (at ROS 12) that:

6. [74]

   Although these observations were made in the context of imposing the sentence for the offending contrary to the Code, his Honour’s remarks are to be construed as applying to the entirety of the respondent’s offending.

7. [75]

   His Honour concluded by saying (at ROS 13):

The errors asserted by the Crown

1. [76]

   The notices filed by the respective Directors of Public Prosecutions each specified a single ground of appeal, namely that the sentence imposed was manifestly inadequate. In written and oral submissions before this Court, the Crown relied upon three particular errors on the part of the sentencing judge, namely that his Honour had:

General sentencing principles for offending of this nature

1. [77]

   Before addressing the specific errors for which the Crown contends, it is appropriate to make reference to some general principles which apply to sentencing for offending of this nature. In R v De Leeuw [2015] NSWCCA 183 Johnson J (with whom Ward JA and Garling J agreed) set out the following (commencing at [72], citations omitted):

2. [78]

   Similar observations had previously been made by his Honour (Leeming JA and Beech-Jones J agreeing) in R v Porte [2015] NSWCCA 174 (at [55]-[81]).

3. [79]

   Counsel for the respondent in the present case sought to distinguish both of these authorities on the basis that they each involved offending of greater objective seriousness. That may be so. However what must be emphasised is that whilst each case must be determined on its own facts, and whilst the considerations referred to by Johnson J are not prescriptive of the outcome of any case, the matters to which his Honour referred are of general principle, to be used as a guide to the exercise of sentencing discretion in cases of this nature: Fedele v R [2015] NSWCCA 286 at [63] per Hidden J (Davies J agreeing).

4. [80]

   Mindful of those principles, I turn to consider the errors asserted by the Crown.

Submissions of the Crown

1. [81]

   In short, the Crown submitted that the passage from his Honour’s sentencing remarks set out at [70] above failed to address the fact that the offences were separate, and involved distinct acts of serious criminality. The Crown pointed to the fact that the respondent had utilised a carriage service to access child pornography material and, having done so, had downloaded a number of images which he kept in his possession for his own personal gratification. It was submitted that although there was some overlap between the offences, they were not identical, and that his Honour had erred in approaching the matter on the basis that entirely concurrent sentences were appropriate.

Submissions of the respondent

1. [82]

   Counsel for the respondent submitted that there was no general principle which required the sentencing judge to accumulate, wholly or partly, the sentences he imposed. Counsel emphasised that questions of accumulation and the like are matters within the discretion of a sentencing judge. It was submitted that the discretion had not miscarried in the present case.

Consideration

1. [83]

   As counsel for the respondent properly pointed out, issues of accumulation and concurrence are matters within the discretion of a sentencing judge. Issues of concurrency and accumulation are to be determined by considering whether the sentence for one offence can comprehend, and reflect, the criminality for the other. If it can, the sentences should be concurrent, otherwise there is a risk that the length of the sentence will exceed that which is warranted in order to reflect the total criminality. If it cannot, the sentences should be as least partly cumulative otherwise there is risk that the sentence will fail to reflect the total criminality of the entire offending: Cahyadi v R [2007] NSWCCA 1 at [27] per Howie J (Adams and Price JJ agreeing).

2. [84]

   In the present case the sentencing judge, other than making a passing reference to the fact that the charges had been brought under two different legislative provisions, gave no reasons why he considered it appropriate to order that the sentences be wholly concurrent. In De Leeuw, Johnson J emphasised (at [114]) the need to keep in mind the different vices to which the respective provisions are directed (see also Porte at [55]-[56] and [157]). His Honour went on to observe (at [142]):

3. [85]

   There was obviously some overlap in the two offences, and it is not uncommon in matters of this nature for the two different offences to be charged. However the legislative provisions which create the two offences are not identical. On the contrary, they are directed to quite separate and distinct forms of criminal offending. The sentencing judge gave no reasons for ordering that the sentences be served wholly concurrently. I am satisfied that the error asserted by the Crown has been made out.

Submissions of the Crown

1. [86]

   In short, the Crown submitted that in ordering that the sentences imposed be served by an Intensive Correction Order in each case, the sentencing judge had failed to have proper regard to the need for general deterrence. In doing so, the Crown took the Court to various aspects of the offending which, it was submitted, highlighted its specific gravity. Whilst the Crown acknowledged that the sentencing judge had, on more than one occasion, made observations as to the need for general deterrence, it was submitted that the sentence which was ultimately imposed did not properly reflect those observations.

Submissions of the respondent

1. [87]

   Counsel for the respondent submitted that it was evident from the various references to the issue that his Honour was mindful of the need to have regard to general deterrence, and its importance in the sentencing exercise. It was submitted that in these circumstances, it was not open to suggest his Honour had erred by failing to have proper regard to it.

Consideration

1. [88]

   General deterrence is the primary sentencing consideration for this kind of offending: De Leeuw at [72] and the authorities cited therein including Director of Public Prosecutions v D'Alessandro (2010) 26 VR 477; [2010] VSCA 60 at [21] per Harper JA (Redlich JA and Williams AJA agreeing); Director of Public Prosecutions v Guest [2014] VSCA 29 at [25] per Coughlan JA (Weinberg and Whelan JJA agreeing). In the present case, the sentencing judge made more than one reference to the importance of general deterrence. Indeed, he concluded (at ROS 12) that “only a sentence of imprisonment will satisfy the requirements for general and specific deterrence”, and (again at ROS 12) that the sentence he intended to impose was designed “to have a deterrent effect upon him and others”. It is evident from these references that this Honour was aware of the need to have regard to general deterrence. However in my view, there is a serious displacement between those observations, and the sentences which were ultimately imposed. It is one thing to make reference to, and acknowledge the importance of, general deterrence in sentencing for offences of this kind. It is quite another to impose a sentence which reflects that factor having been taken into account.

2. [89]

   Whilst an Intensive Correction Order represents a substantial punishment, it is nevertheless one which reflects a significant degree of leniency, simply because it does not involve immediate incarceration: R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225 at [108] per McClellan CJ at CL and Johnson J (Price, RA Hulme and Button JJ agreeing); R v Glynatsis [2013] NSWCCA 131 at [69] per Hoeben CJ at CL (Rothman and McCallum JJ agreeing). The degree of leniency inherent in the Intensive Correction Order imposed by his Honour in each case failed to satisfy the requirement to have regard to general deterrence, to the point where the importance of that factor on sentence was allowed "to slip through, almost without a trace": D'Alessandro at [24].

3. [90]

   The second error for which the Crown contends has been made out.

Submissions of the Crown

1. [91]

   The Crown submitted that the sentencing judge had given undue weight to the respondent’s rehabilitation, resulting in a lack of proportionality in the sentences that were imposed. It was submitted, in particular, that his Honour had given the report of Dr Powell excessive weight.

2. [92]

   Moreover, and even allowing for the length of time which had elapsed since the respondent’s previous offending, it was submitted that such offending necessarily cast doubt on the respondent’s prospects of rehabilitation, and highlighted the importance of specific deterrence. It was submitted by the Crown that his Honour had omitted to properly consider either of these matters and that, in particular, he had failed to make a proper assessment of the respondent’s prospects of rehabilitation, concluding only that the respondent was “capable” of rehabilitation.

Submissions of the respondent

1. [93]

   Counsel for the respondent submitted that rehabilitation was obviously an important factor bearing upon the exercise of his Honour’s sentencing discretion, and that his Honour was entitled to attach significant weight to it. Counsel submitted that on a proper reading of his Honour’s sentencing remarks, it was evident that he had accepted the various opinions of Dr Powell and had been entitled to do so. It was submitted that although his Honour had not made a specific finding, the general tenor of Dr Powell’s report was that the respondent had positive prospects of rehabilitation.

Consideration

1. [94]

   His Honour summarised the report of Dr Powell at considerable length. However having done so, and aside from his conclusion that the respondent was “capable” of rehabilitation, his Honour made no actual findings in relation to any of the matters about which Dr Powell had reported. In particular, his Honour made no assessment of the respondent’s prospects of rehabilitation, that being a primary issue to which Dr Powell’s report was directed. Notwithstanding the absence of any such findings, it is apparent from the time that his Honour devoted to summarising Dr Powell’s report that its contents played a significant part in his ultimate determination of sentence.

2. [95]

   Dr Powell’s report recorded the fact that between 20 July 2016 and 10 October 2016 the respondent had attended a total of five “assessment sessions”. Dr Powell did not diagnose the respondent as suffering from any form of mental illness. He dealt at some length with aspects of the respondent’s childhood and concluded that the “deep-seated personal trauma” suffered by the respondent as a child had not been adequately addressed. He described the respondent as suffering from a “serious attachment disorder” resulting from a dysfunctional upbringing. Dr Powell said nothing whatsoever, at least in any definitive terms, about the respondent’s progress as a consequence of his attendance at sessions up to the time of his sentence.

3. [96]

   Subjective considerations, no matter how persuasive, cannot be allowed to unduly overshadow the objective gravity of an offence, to the point where there is a failure to ensure reasonable proportionality between the seriousness of the offending and the sentence imposed: R v Dodd (1991) 57 A Crim R 349 at 354; Kearsley v R [2017] NSWCCA 28 at [14] and the authorities cited therein. In the circumstances, in light of the contents of the report of Dr Powell and the time devoted by the sentencing judge to dealing with its contents, I am driven to the conclusion that matters pertaining to the respondent’s rehabilitation were given excessive weight in the sentencing process. It follows that the third error asserted by the Crown is made out.

The evidence

1. [97]

   In terms of the Court’s residual discretion, the Crown relied on an affidavit of Philippa Winston, Lawyer, of 1 August 2017 to which no objection was taken.

2. [98]

   The respondent relied upon his affidavit of 1 August 2017, along with a further report of Dr Powell of 26 July 2017 (which was not in affidavit form). The Crown took no objection to any of this evidence, and did not seek to cross examine the respondent.

3. [99]

   The affidavit of Ms Winston establishes the following chronology of events:

4. [100]

   The respondent’s affidavit was lacking in the detail that might reasonably have been expected to be included, given its importance. The respondent said (at (4)) that following the sentence proceedings he was required to move premises because those in which he had been living were deemed to be unsuitable by Community Corrections. Why this was so was not explained in the affidavit, although it would appear from the report of Ms Addlem that the respondent had previously resided in a unit block where a number of children also lived with their families. Although Ms Addlem raised the possibility of an exemption being granted to allow the respondent to remain at those premises, such exemption was obviously not forthcoming. The respondent said (at (5)) that he was required to enter into a 6 month lease for alternative premises and although his affidavit did not state when the lease was entered into, the Court was informed during the course of the hearing that it was in April of this year.

5. [101]

   The respondent went on to outline (commencing at (6)) the rehabilitative steps he has taken since being sentenced. The terms in which he did so were vague and imprecise. He made reference to having consulted with a psychologist from Community Corrections based in Canberra on one occasion. No information was provided as to the identity of the psychologist, the outcome of the consultation, or whether any further consultations are proposed.

6. [102]

   At (7), the respondent stated that his case worker had informed him that it was intended that he “attend at the group that is run out of Surry Hills”. No information was provided about the nature of this “group”, the identities of those by whom it is administered, or the precise rehabilitative steps to which it is directed.

7. [103]

   At (8), the respondent stated that he had been attending “counselling once a fortnight” with his caseworker since being sentenced. Accepting that to be the case, the respondent would seemingly have attended counselling on approximately 10 occasions since he was sentenced. No evidence was put before the Court as to the respondent’s progress, in terms of his rehabilitation, as a consequence of attending those counselling sessions, nor was any evidence put before the Court which went to the issue of the potential consequences of that counselling being interrupted by the respondent being resentenced. The counsellor was not identified.

8. [104]

   At (10), the respondent stated that since being sentenced, he has “continued to attend upon Dr Powell’s group sessions once per week in Sydney” and that he tries to “have a private session with Dr Powell once per month in Sydney”. He went on to state that the last such session was “about 3 weeks ago” and that the next was scheduled for 21 August.

9. [105]

   Dr Powell’s report confirmed that the respondent had attended 11 group sessions since being sentenced. In very general terms, Dr Powell referred to the respondent having made positive progress as a consequence of that attendance although once again, the nature of those “group sessions”, and their focus, was not explained. Curiously, Dr Powell made no reference at all to the private counselling sessions to which the respondent referred as having undertaken with him.

10. [106]

    In terms of the effects, upon the respondent, of the imposition of a full time custodial sentence, Dr Powell stated the following (at (7)):

11. [107]

    Finally, the respondent stated in his affidavit (commencing at (14)) that he had assumed, until receiving the notice of appeal, that the charges against him had been finalised, as a consequence of which he had “got on with (his) life”. He said that after he received the notice of appeal he “became more depressed and suffered from greater levels of anxiety”. He described the period pending the hearing of this appeal as being “stressful”, and said that the uncertainty had made it difficult for him to plan his life.

Submissions of the Crown

1. [108]

   In written submissions, the Crown argued that any delay in filing the notice of appeal had been brought about, not as the consequence of any default on the part of either Director of Public Prosecutions, but by the delay in obtaining the remarks on sentence from the sentencing judge. It was submitted that once the remarks were received, the Crown moved quickly to file the notice. It was also emphasised that the Crown had not sought to conduct its case before this Court in a way different to that in which it had conducted it before the sentencing judge. It was submitted, in particular, that the Crown had always maintained that a full time custodial sentence was the only proper and available outcome. The Crown also pointed out that the orders imposed by the sentencing judge had not yet expired.

2. [109]

   In oral submissions, the Crown accepted that the procedures which are customarily adopted in matters such as this had not been followed in the present case. In particular, the Crown accepted that no letter had been forwarded to the respondent advising him that a Crown appeal was being considered, and that a decision would be made on the basis of a review of the transcript of the proceedings, and the sentencing remarks, once they were received.

3. [110]

   The Crown also accepted that it had been represented in Court at the time that the orders were made, and that notes of what his Honour had said would necessarily have been available as a reference. However, the Crown maintained that it remained necessary for some matters to be checked and verified, hence the request for the sentencing remarks.

4. [111]

   The Crown also emphasised that once the first notice of appeal had been filed, there had been no delay in the matter being listed for hearing. Finally, the Crown submitted that the opinion of Dr Powell as to the availability of remedial programs in custody was generally unsupported, and deserving of no weight.

Submissions of the respondent

1. [112]

   Counsel for the respondent appeared to accept that the evidence relied upon by the respondent going to the issue of the exercise of residual discretion was less than fulsome. However, it was submitted that such evidence nevertheless established that there would be an interruption to the respondent’s rehabilitation if he were to be sentenced to full time custody. It was further submitted that parts of the report of Ms Addlem supported the opinion expressed by Dr Powell as to the limited availability, to the respondent, of rehabilitation programs in the event that a full time custodial sentence was imposed.

2. [113]

   Counsel further submitted that the respondent’s affidavit established that he had effectively been forced to find alternative accommodation which was deemed suitable by Community Corrections. It was submitted, in effect, that the respondent had taken that course so as to be able to continue to perform his obligations under the orders imposed by the sentencing judge, in circumstances where he had no reason to believe that any appeal was being considered by the Crown. It was submitted that quite apart from any other consideration, the respondent would, if now taken into full time custody, be faced with a significant financial penalty in circumstances where the lease would not expire for several months.

Consideration

1. [114]

   It is incumbent upon the Crown to satisfy the Court that the residual discretion to decline to intervene and re-sentence the respondent should not be exercised: CMB v Attorney-General for NSW (2015) 256 CLR 346; [2015] HCA 9 at [33] and [54]. In addressing that issue, there are a number of circumstances to be considered.

2. [115]

   A period of almost two weeks elapsed between the date on which the respondent was sentenced, and the date on which the Crown sought a copy of the transcript and the sentencing remarks. No explanation has been advanced as to that period of delay, although I accept that when a request for that material was made, it was made clear that it was urgent.

3. [116]

   Obviously, the request for the transcript and sentencing remarks was made because an appeal was being considered. The respondent was not informed of that fact. The Crown accepted that this was not in accordance with normal procedure. Why the normal procedure was not followed was not the subject of any evidence, and was not otherwise explained.

4. [117]

   It is also relevant to note that the issue of the imposition of an Intensive Correction Order was the subject of submissions before the sentencing judge on 31 October 2016. It must have been apparent from that, as well as from the fact that the necessary report was ordered, that the sentencing judge was at least giving consideration to making such an order. There was nothing preventing the Crown from requesting a copy of the transcript of the sentence proceedings at that stage.

5. [118]

   There is also a related issue of whether, in the particular circumstances of the present case, the sentencing remarks were required in order to allow the Director to reach a concluded view about whether an appeal ought be brought. On any view, the sentence imposed was inconsistent with the general principle that, absent exceptional circumstances, a full time custodial sentence should be imposed in matters of this nature. If the view was taken (as it apparently was) that the sentencing remarks were required to allow the Director to properly consider whether an appeal should be brought then at the very least, the respondent should have been notified of that possibility.

6. [119]

   That said, the chronology set out at [99] demonstrates that a period of almost one month elapsed between the request for the transcript and the date on which it was provided to the Crown. Six weeks elapsed between the request for the sentencing remarks, and their provision. Those delays were not the fault of the Crown. They occurred in circumstances where it was made clear that the material was required urgently.

7. [120]

   Once the remarks on sentence were received, the NSW Director of Public Prosecutions filed a notice of appeal within three working days. In totality, a period of sixty three days, or approximately two months, elapsed between the date on which the respondent was sentenced, and the date of the filing of the notice by the NSW Director of Public Prosecutions. That period must be assessed in light of all of the matters to which I have referred including the period of almost 6 weeks between the date of requesting the sentencing remarks, and the date on which they were provided.

8. [121]

   As I have previously noted, Dr Powell expressed the view in his most recent report that replacing the current orders with a full time custodial sentence would “have a severe negative impact” upon the respondent’s current treatment and his prospects of rehabilitation. He went on to say that he considered it “unlikely” that the respondent would be able to receive any treatment in custody unless the sentence was 2 years or more. Dr Powell did not offer any underlying support for the second of those assertions. However the potentially limited availability of such programs was touched upon by Ms Addlem, who stated that in circumstances where the respondent had been assessed in the low-moderate risk category, he would “not necessarily” have access to a specialist sex offender treatment program in custody in the absence of specific risk factors being identified. Notwithstanding the imprecision of the most recent report of Dr Powell, I am prepared to accept that there would be some interruption to the respondent’s rehabilitation in the event that this Court were to intervene.

9. [122]

   I have already made reference to the fact that the respondent stated in his affidavit that he had moved premises since being sentenced, due to the fact that his previous premises were deemed unsuitable by Community Corrections. The apparent reason for the unsuitability of those premises emerges from Ms Addlem’s report. Ms Addlem’s report makes it clear that the possibility of the respondent having to change address was raised well in advance of the date on which the respondent was sentenced. At one point in her report Ms Addlem noted that the respondent had stated that he “will seek alternative accommodation in the near future”. I accept that if he is now taken into full time custody, it is likely that the respondent will suffer a financial penalty. Moreover, if (as is apparently the case) his previous premises were deemed unsuitable, the would seemingly have had to move in order to perform his obligations under the orders made by the sentencing judge, irrespective of whether he was notified of the possibility of an appeal.

10. [123]

    I accept that the respondent has, since being notified of the Crown’s appeal, lived in a state of uncertainty. That would no doubt have brought him considerable stress. Equally, such a circumstance is not uncommon in a case such as the present.

11. [124]

    Moreover, public confidence in the administration of criminal justice is necessarily a factor which bears upon the question of whether the Court should not intervene. For the reasons I have set out, the sentence imposed in the present case was, on any view, manifestly inadequate and at odds with the applicable sentencing principles. In R v Stoupe [2015] NSWCCA 175 Johnson J (with whom Hoeben CJ at CL and Beech-Jones J agreed) made the following observations which are apt to the present case (at [115]):

12. [125]

    It may be that the number of images obtained, and then possessed, by the respondent was less than seen in other cases. But the number of images is not, of itself, determinative of the seriousness of the offending. The majority of the images involved the second highest category of seriousness. This category describes penetrative sexual activity involving children and adults. There were also a number in the highest category of seriousness depicting sadism and bestiality involving children.

13. [126]

    Moreover, the offending occurred over a period of 12 months, in circumstances where, in order to engage in it, it was necessary for the respondent to install a particular program on his computer for the purposes of accessing the “dark net” where the images could be found. This was not spontaneous offending. On the contrary, there was a considerable degree of pre-meditation in the respondent’s actions. As Johnson J pointed out in De Leeuw, the fact that the respondent did not pay to access any website, and was not involved in the distribution or sale of the material, does not mitigate his offending.

14. [127]

    There was also nothing of any particular significance in the subjective case advanced by the respondent. The respondent could not, in light of his previous offending, be given the benefit of the finding of being a person of prior good character. Further, and for the reasons that I have already expressed, the sentences imposed by his Honour fell substantially short of what was required to address the primary sentencing consideration for this type of offending, namely that of general deterrence.

15. [128]

    In all of the circumstances, and notwithstanding the factors surrounding the delay in the Crown bringing the present appeal, I have come to the view that when regard is had to the nature of the respondent’s offending, the inadequacy of the sentence imposed is so great as to be likely to undermine public confidence in the administration of criminal justice. In those circumstances, I am satisfied that the residual discretion to decline to intervene and re-sentence the respondent should not be exercised.

Re-sentence

1. [129]

   The circumstances of the respondent’s offending have been canvassed at length. In respect of the offence contrary to s. 91H(2) of the Act, he is entitled to a 25% discount to reflect his early plea. I apply the same discount in respect of the offence against s. 474.19(1) of the Code, so as to reflect the respondent’s willingness to facilitate the course of justice. In respect of the sentence to be imposed for the latter offence, I have had regard to the matters set out in s. 16A(2) of the Crimes Act 1914 (Cth).

2. [130]

   The respondent does not, in light of the matters on his criminal history, obtain the benefit of a finding of prior good character. I accept that overall, the respondent is remorseful for his offending. Whilst I also accept that he appears to have made some generally positive progress since being sentenced, his prospects of rehabilitation must necessarily be guarded in all of the circumstances.

3. [131]

   In Fitzgerald v R [2015] NSWCCA 266 Hoeben CJ at CL (with whom Price and Button JJ agreed) observed that there has been a general consistency in the approach to sentencing for this type of offending. At [50] his Honour observed that the sentencing pattern revealed a range of head sentences of imprisonment between 18 months and 5 years after a discount for a guilty plea. I take that into account.

ORDERS

1. [132]

   I propose the following orders:

   1. (1)

      The Crown appeal is allowed.

   2. (2)

      The orders of Judge McLoughlin SC of 10 March 2017 are set aside.

   3. (3)

      In respect of the offence contrary to s. 91H(2) of the Crimes Act 1900 (NSW) the respondent is sentenced to a fixed term of 15 months imprisonment to date from 10 March 2017, and to expire on 9 June 2018.

   4. (4)

      In respect of the offence contrary to s. 474.19(1) of the Criminal Code 1995 (Cth) the respondent is sentenced to 18 months imprisonment commencing on 10 June 2017 and expiring on 9 December 2018.

   5. (5)

      In respect of the order made in (4) above, and pursuant to s. 19AC(1) of the Crimes Act 1914 (Cth) I direct that at the expiration of a period of 15 months from 10 June 2017, namely on 9 September 2018, the respondent be released upon his own recognisance, without security, in a sum of $500.00, to be of good behaviour for a period of 3 months.

2. [133]

   LONERGAN J: I have had the substantial benefit of reading in draft the reasons of Leeming JA and Bellew J.

3. [134]

   The charges, the nature of offending and the proceedings before the sentencing Judge are fully set out in the judgment of Bellew J. The issues and submissions raised by the Crown in this appeal and the respondent’s evidence and submissions are also set out in the judgment of Bellew J and there is no need for repetition.

4. [135]

   I agree with the reasoning and conclusions reached by Bellew J regarding the inadequacy of the sentence imposed, the residual discretion and the bases of the proposed re-sentencing.

5. [136]

   I agree with the analysis and reasoning of Leeming JA regarding the inadequacy of the sentence imposed by the sentencing judge. I respectfully disagree with the conclusion reached by Leeming JA in relation to the exercise of the residual discretion.

6. [137]

   The issue is a difficult one. The Crown did not proceed with alacrity once the sentence was delivered, however the sentence is clearly and unjustifiably lenient. I agree with the comment of Leeming JA at [38] that given the residual discretion to which Crown appeals are subjected, there will be cases when, in the proper exercise of that discretion, erroneous sentences are permitted to stand uncorrected. I agree also that there will be an identification of the relevant principles for the governance and guidance of the sentencing courts available, if sought, in this court’s judgment. This approach does not however sufficiently deal with the public interest in ensuring that crimes involving and perpetuating the abuse of children are adequately punished and that others are deterred from committing such crimes.

7. [138]

   In all the circumstances I am satisfied that the residual discretion to decline to intervene and re-sentence the respondent should not be exercised. I agree with the sentence and the orders proposed by Bellew J.