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  • Writer's pictureGeoff Harrison

Possession of Child Pornography

Updated: Oct 27, 2023


Possess Child Pornography

Published by Geoff Harrison | 5 July 2023


Section 91H of the Crimes Act 1900 encapsulates a number of offences, namely, production, dissemination and possession of child abuse material (also see relevant Commonwealth offences below). The offences are strictly indictable and carry a maximum penalty of 10 years imprisonment for NSW offences and 30 years imprisonment for aggravated Commonwealth offences. Justice RA Hulme in Minehan v R [2010] NSWCCA 140 at [94] set out factors that inform as to the objective seriousness of the offence.


There have been a number of systems used to categorise or classify Child Abuse Material (CAM) or Child Exploitation Material (CEM), such as the COPINE scale, the Oliver Scale and the Interpol Baseline Scale. Arguably, the most used is the Interpol Baseline Scale which has four categories:


1. Interpol Baseline—depicting a real prepubescent child (under the age of approximately 13 years) and the child is involved in a sexual act, is witnessing a sexual act or the material is focused/concentrated on the child’s anal or genital region.


2. Other illegal files—files that are illegal according to local legislation either by way of age or content.


3. Related non-illegal files—an image that forms part of a CEM series but which is not in its own right illegal, although it may contain important clues or identifying information to assist investigations in relation to category 1 or 2 images.


4. Ignorable—all other (legal) material which does not fit into categories 1–3.


Other Sources:

Cases:

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CRIMES ACT 1900 - SECT 91G

Children not to be used for production of child abuse material


(1) Any person who--

(a) uses a child who is under the age of 14 years for the production of child abuse material, or

(b) causes or procures a child of that age to be so used, or

(c) having the care of a child of that age, consents to the child being so used or allows the child to be so used,

is guilty of an offence.

Maximum penalty--imprisonment for 14 years.


(2) Any person who--

(a) uses a child who is of or above the age of 14 years for the production of child abuse material, or

(b) causes or procures a child of that age to be so used, or

(c) having the care of a child of that age, consents to the child being so used or allows the child to be so used,

is guilty of an offence.

Maximum penalty--imprisonment for 10 years.


(3) A person is guilty of an offence against this subsection if the person commits an offence against subsection (1) or (2) in circumstances of aggravation.

Maximum penalty--imprisonment for 20 years.


(3A) In this section,

"circumstances of aggravation" means circumstances in which--

(a) the alleged victim is under 10 years of age, or

(b) at the time of, or immediately before or after, the commission of the offence, the alleged offender intentionally or recklessly inflicts actual bodily harm on the alleged victim or any other person who is present or nearby, or

(c) at the time of, or immediately before or after, the commission of the offence, the alleged offender threatens to inflict actual bodily harm on the alleged victim or any other person who is present or nearby by means of an offensive weapon or instrument, or

(d) the alleged offender is in the company of another person or persons, or

(e) the alleged victim is, whether generally or at the time of the commission of the offence, under the authority of the alleged offender, or

(f) the alleged victim has a serious physical disability, or

(g) the alleged victim has a cognitive impairment, or

(h) the alleged offender took advantage of the alleged victim being under the influence of alcohol or a drug in order to commit the offence, or

(i) the alleged offender deprives the alleged victim of his or her liberty for a period before or after the commission of the offence, or

(j) the alleged offender breaks and enters into a dwelling-house or other building with the intention of committing the offence or another serious indictable offence.


(3B) In proceedings for an offence against this section, it is not necessary to prove that the accused knew the age of the child concerned.


(3C) If on the trial of a person charged with an offence against subsection (3) the trier of fact is not satisfied that the offence is proven but is satisfied that the person has committed an offence against subsection (1) or (2), the trier of fact may acquit the person of the offence charged and find the person guilty of an offence against subsection (1) or (2). The person is liable to punishment accordingly.


(4) For the purposes of this section, a person may have the care of a child without necessarily being entitled by law to have the custody of the child.


(5) Where on the trial of a person for an offence under subsection (1) the jury is not satisfied that the accused is guilty of the offence charged, but is satisfied on the evidence that the accused is guilty of an offence under subsection (2), it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly.


(6) Proceedings for an offence under this section against a child or young person may only be instituted by or with the approval of the Director of Public Prosecutions.


CRIMES ACT 1900 - SECT 91H Production, dissemination or possession of child abuse material

91H PRODUCTION, DISSEMINATION OR POSSESSION OF CHILD ABUSE MATERIAL


(1) In this section--

"disseminate" child abuse material, includes--

(a) send, supply, exhibit, transmit or communicate it to another person, or

(b) make it available for access by another person, or

(c) enter into any agreement or arrangement to do so.


"possess" child abuse material includes, in relation to material in the form of data, being in possession or control of data (within the meaning of section 308F (2)).


"produce" child abuse material includes--

(a) film, photograph, print or otherwise make child abuse material, or

(b) alter or manipulate any image for the purpose of making child abuse material, or

(c) enter into any agreement or arrangement to do so.


(2) A person who produces, disseminates or possesses child abuse material is guilty of an offence.

Maximum penalty--imprisonment for 10 years.


(3) Proceedings for an offence under this section against a child or young person may only be instituted by or with the approval of the Director of Public Prosecutions.


__________________________________________________________________________________________


Criminal Code Act 1995 (Cth)

Subdivision D --Offences relating to use of carriage service for child abuse material


child abuse material" means:


(a) material that depicts a person, or a representation of a person, who:


(i) is, or appears to be, under 18 years of age; and


(ii) is, or appears to be, a victim of torture, cruelty or physical abuse;


and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or


(b) material that describes a person who:


(i) is, or is implied to be, under 18 years of age; and


(ii) is, or is implied to be, a victim of torture, cruelty or physical abuse;


and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or


(c) material that depicts a person, or a representation of a person, who is, or appears to be, under 18 years of age and who:


(i) is engaged in, or appears to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or


(ii) is in the presence of a person who is engaged in, or appears to be engaged in, a sexual pose or sexual activity;


and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or


(d) material the dominant characteristic of which is the depiction, for a sexual purpose, of:


(i) a sexual organ or the anal region of a person who is, or appears to be, under 18 years of age; or


(ii) a representation of such a sexual organ or anal region; or


(iii) the breasts, or a representation of the breasts, of a female person who is, or appears to be, under 18 years of age;


in a way that reasonable persons would regard as being, in all the circumstances, offensive; or


(e) material that describes a person who is, or is implied to be, under 18 years of age and who:


(i) is engaged in, or is implied to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or


(ii) is in the presence of a person who is engaged in, or is implied to be engaged in, a sexual pose or sexual activity;


and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or


(f) material that describes:


(i) a sexual organ or the anal region of a person who is, or is implied to be, under 18 years of age; or


(ii) the breasts of a female person who is, or is implied to be, under 18 years of age;


and does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or


(g) material that is a doll or other object that resembles:


(i) a person who is, or appears to be, under 18 years of age; or


(ii) a part of the body of such a person;


if a reasonable person would consider it likely that the material is intended to be used by a person to simulate sexual intercourse.


474.22 Using a carriage service for child abuse material


(1) A person commits an offence if:


(a) the person:


(i) accesses material; or


(ii) causes material to be transmitted to himself or herself; or


(iii) transmits, makes available, publishes, distributes, advertises or promotes material; or


(iv) solicits material; and


(aa) the person does so using a carriage service; and


(b) the material is child abuse material.


Penalty: Imprisonment for 15 years.


(2) To avoid doubt, the following are the fault elements for the physical elements of an offence against subsection (1):


(a) intention is the fault element for the conduct referred to in paragraph (1)(a);


(b) recklessness is the fault element for the circumstances referred to in paragraph (1)(b).


Note: For the meaning of intention and recklessness see sections 5.2 and 5.4.


(2A) Absolute liability applies to paragraph (1)(aa).


Note: For absolute liability, see section 6.2.


(3) As well as the general defences provided for in Part 2.3, defences are provided for under section 474.24 in relation to this section.


474.22A Possessing or controlling child abuse material obtained or accessed using a carriage service


(1) A person commits an offence if:


(a) the person has possession or control of material; and


(b) the material is in the form of data held in a computer or contained in a data storage device; and


(c) the person used a carriage service to obtain or access the material; and


(d) the material is child abuse material.


Penalty: Imprisonment for 15 years.


(2) Absolute liability applies to paragraph (1)(c).


Note: For absolute liability, see section 6.2.


(3) If the prosecution proves beyond reasonable doubt the matters mentioned in paragraphs (1)(a), (b) and (d), then it is presumed, unless the person proves to the contrary, that the person:


(a) obtained or accessed the material; and


(b) used a carriage service to obtain or access the material.


Note: A defendant bears a legal burden in relation to the matters in this subsection: see section 13.4.


474.23 Possessing, controlling, producing, supplying or obtaining child abuse material for use through a carriage service


(1) A person commits an offence if:


(a) the person:


(i) has possession or control of material; or


(ii) produces, supplies or obtains material; and


(b) the material is child abuse material; and


(c) the person has that possession or control, or engages in that production, supply or obtaining, with the intention that the material be used:


(i) by that person; or


(ii) by another person;


in committing an offence against section 474.22 (using a carriage service for child abuse material).


Penalty: Imprisonment for 15 years.


(2) A person may be found guilty of an offence against subsection (1) even if committing the offence against section 474.22 (using a carriage service for child abuse material) is impossible.


(3) It is not an offence to attempt to commit an offence against subsection (1).


474.23A Conduct for the purposes of electronic service used for child abuse material


(1) A person commits an offence if:


(a) the person engages in any of the following conduct:


(i) creating, developing, altering or maintaining an electronic service;


(ii) controlling or moderating an electronic service;


(iii) making available, advertising or promoting an electronic service;


(iv) assisting in doing anything covered by a preceding subparagraph; and


(b) the person does so with the intention that the electronic service be used:


(i) by that person; or


(ii) by another person;


in committing, or facilitating the commission of, an offence against section 474.22, 474.22A or 474.23.


Penalty: Imprisonment for 20 years.


(2) A person may be found guilty of an offence against subsection (1) even if:


(a) committing the offence against section 474.22, 474.22A or 474.23 is impossible; or


(b) the electronic service is incapable of being used as mentioned in paragraph (1)(b):


(i) at the time the person engages in the conduct mentioned in paragraph (1)(a); or


(ii) at any other time.


(3) It is not an offence to attempt to commit an offence against subsection (1).


(4) In this Code:


"electronic service" means a service a purpose of which is to:


(a) allow persons to access material using a carriage service; or


(b) deliver material to persons having equipment appropriate for receiving that material, where the delivery of the service is by means of a carriage service;


but does not include:


(c) a broadcasting service (within the meaning of the Broadcasting Services Act 1992 ); or


(d) a datacasting service (within the meaning of that Act).


474.24 Defences in respect of child abuse material


(1) A person is not criminally responsible for an offence against section 474.22, 474.22A, 474.23 or 474.23A because of engaging in particular conduct if the conduct:


(a) is of public benefit; and


(b) does not extend beyond what is of public benefit.


In determining whether the person is, under this subsection, not criminally responsible for the offence, the question whether the conduct is of public benefit is a question of fact and the person's motives in engaging in the conduct are irrelevant.


Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).


(2) For the purposes of subsection (1), conduct is of public benefit if, and only if, the conduct is necessary for or of assistance in:


(a) enforcing a law of the Commonwealth, a State or a Territory; or


(b) monitoring compliance with, or investigating a contravention of, a law of the Commonwealth, a State or a Territory; or


(c) the administration of justice; or


(d) conducting scientific, medical or educational research that has been approved by the AFP Minister in writing for the purposes of this section.


(3) A person is not criminally responsible for an offence against section 474.22, 474.22A, 474.23 or 474.23A if:


(a) the person is, at the time of the offence, a law enforcement officer, or an intelligence or security officer, acting in the course of his or her duties; and


(b) the conduct of the person is reasonable in the circumstances for the purpose of performing that duty.


Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).


(4) A person is not criminally responsible for an offence against section 474.22, 474.22A, 474.23 or 474.23A if the person engages in the conduct in good faith for the sole purpose of:


(a) assisting the eSafety Commissioner to perform the functions, or exercise the powers, conferred on the eSafety Commissioner by Part 9 of the Online Safety Act 2021 ; or


(b) manufacturing or developing, or updating, content filtering technology (including software) in accordance with:


(i) an industry code registered under Division 7 of Part 9 of the Online Safety Act 2021 ; or


(ii) an industry standard registered under Division 7 of Part 9 of the Online Safety Act 2021 .


Note: A defendant bears an evidential burden in relation to the matter in this subsection, see subsection 13.3(3).


474.24A Aggravated offence--offence involving conduct on 3 or more occasions and 2 or more people


(1) A person commits an offence against this section if:


(a) the person commits an offence against one or more of the following provisions on 3 or more separate occasions:


(iii) section 474.22 (using a carriage service for child abuse material);


(iiia) section 474.22A (possessing or controlling child abuse material obtained or accessed using a carriage service);


(iv) section 474.23 (possessing etc. child abuse material for use through a carriage service); and


(b) the commission of each such offence involves 2 or more people.


Penalty: Imprisonment for 30 years.


(2) There is no fault element for any of the physical elements described in paragraph (1)(a) other than the fault elements (however described), if any, for the offence against section 4 74.22, 474.22A or 474.23 .


(3) To avoid doubt, a person does not commit an offence against section 4 74.22, 474.22A or 474.23 for the purposes of paragraph (1)(a) if the person has a defence to that offence.


Offence or conduct need not be the same


(4) For the purposes of subsection (1), it is immaterial whether the offence, or the conduct constituting the offence, is the same on each occasion.


Double jeopardy etc.


(5) A person who has been convicted or acquitted of an offence (the aggravated offence ) against this section may not be convicted of an offence against section 4 74.22, 474.22A or 474.23 in relation to the conduct that constituted the aggravated offence.


(6) Subsection (5) does not prevent an alternative verdict under section 474.24B.


(7) A person who has been convicted or acquitted of an offence (the underlying offence ) against section 4 74.22, 474.22A or 474.23 may not be convicted of an offence against this section in relation to the conduct that constituted the underlying offence.


474.24B Alternative verdict if aggravated offence not proven


If, on a trial for an offence (the aggravated offence ) against subsection 474.24A(1), the trier of fact:


(a) is not satisfied that the defendant is guilty of the aggravated offence; but


(b) is satisfied beyond reasonable doubt that he or she is guilty of an offence (the underlying offence ) against section 4 74.22, 474.22A or 474.23 ;


it may find the defendant not guilty of the aggravated offence but guilty of the underlying offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.


474.24C Consent to commencement of proceedings where defendant under 18


(1) Proceedings for an offence against this Subdivision must not be commenced without the consent of the Attorney-General if the defendant was under 18 at the time he or she allegedly engaged in the conduct constituting the offence.


(2) However, a person may be arrested for, charged with, or remanded in custody or on bail in connection with, such an offence before the necessary consent has been given.



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Minehan v R [2010] NSWCCA 140 (7 July 2010)


NEW SOUTH WALES COURT OF CRIMINAL APPEAL


CITATION:


Minehan v R [2010] NSWCCA 140


FILE NUMBER(S):


2008/14257


HEARING DATE(S):


13 May 2010



JUDGMENT DATE:


7 July 2010


PARTIES:


Gregory John Minehan (Applicant)


Regina (Respondent)


JUDGMENT OF:


Macfarlan JA Johnson J RA Hulme J


LOWER COURT JURISDICTION:


District Court


LOWER COURT FILE NUMBER(S):


2008/14257


LOWER COURT JUDICIAL OFFICER:


Blackmore DCJ


LOWER COURT DATE OF DECISION:


8 May 2009



COUNSEL:


Mr W Hunt (Applicant)


Mr N Adams (Respondent)


SOLICITORS:


Legal Aid Commission of NSW


Commonwealth Director of Public Prosecutions


CATCHWORDS:


CRIMINAL LAW


appeal against sentence


grounds for interference


child pornography


using carriage service in offensive manner and to groom person under 16 for sex


error as to maximum penalty


whether error as to treatment of offender's mental condition


whether moral culpability reduced


whether sentence manifestly excessive



LEGISLATION CITED:


Criminal Code Act 1995 (Cth)


Crimes Act 1900


Crimes Act 1914 (Cth)


Crimes Amendment (Sexual Offences) Act 2008


Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No 2) 2004 (Cth)


Crimes (Sentencing Procedure) Act 1999


CATEGORY:


Principal judgment


CASES CITED:


Baldwin v Police [2007] SASC 214


Baxter v Regina [2007] NSWCCA 237; (2007) 173 A Crim R 284


Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41


Colbourn v R [2009] TASSC 108


Director of Public Prosecutions (Cth) v D'Alessandro [2010] VSCA 60


Director of Public Prosecutions v Latham [2009] TASSC 101


Furber v R [2008] WASCA 233


Han v R [2009] CCA 300


Hutchins v Western Australia [2006] WASCA 258


Majid v R [2010] NSWCCA 121


Maldonado v R [2009] NSWCCA 189


Marshall v R [2007] NSWCCA 24


McEwen v Simmons & Anor [2008] NSWSC 1292; 73 NSWLR 10


Mouscas v R [2008] NSWCCA 181


R v Booth [2009] NSWCCA 89


R v Elliott [2008] NSWDC 238


R v Fowler [2007] ACTCA 4


R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29


R v Hemsley [2004] NSWCCA 228


R v Hitchen [2010] NSWCCA 77


R v Jarrold [2010] NSWCCA 69


R v Kairouz [2005] NSWCCA 247


R v Mara [2009] QCA 208


R v MMK [2006] NSWCCA 272; 164 A Crim R 481


R v Oliver, Hartley and Baldwin [2003] 1 Cr App R 28


Regina v Wright (1997) 93 A Crim R


Regina v Zakaria [2002] NSWCCA 450


Saddler v R [2009] NSWCCA 83


Smith v R [2007] NSWCCA 138


The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383


Walker v R [2008] NTCCA 7


Whiley v R [2010] NSWCCA 53


TEXTS CITED:


DECISION:


Leave to rely upon ground 3 granted. Leave to appeal granted. Appeal allowed. Sentences in respect of each of counts 1 to 5 confirmed. Sentences imposed in respect of counts 6 to 9 quashed and in lieu the following sentences be imposed:


Count 7: Sentenced to imprisonment comprising a non-parole period of 1 year 6 months and a balance of the term of 6 months. The sentence to commence 15 December 2008. The non-parole period will expire 14 June 2010. The total term will expire 14 December 2010.


Count 8: Sentenced to imprisonment comprising a non-parole period of 1 year 9 months and a balance of the term of the sentence of 7 months. The sentence to commence 15 April 2009. The non-parole period will expire 14 January 2011. The total term will expire 14 August 2011.


Count 6: Sentenced to imprisonment for 3 years from 15 October 2009 and expiring 14 October 2012.


Count 9: Sentenced to imprisonment for 3 years from 15 February 2010 and expiring 14 February 2013.


In respect of counts 6 and 9, set a non-parole period of 1 year 5 months dating from 15 October 2009 and expiring 14 March 2011.


JUDGMENT:


IN THE COURT OF


CRIMINAL APPEAL


2008/14257


MACFARLAN JA


JOHNSON J


R A HULME J


7 July 2010


Gregory John MINEHAN v Regina


Judgment


1 MACFARLAN JA: I agree with R A Hulme J.


2 JOHNSON J: I agree with R A Hulme J.


3 R A HULME J: This is an application for leave to appeal in respect of sentences imposed in the District Court by his Honour Judge Blackmore on 8 May 2009. The applicant pleaded guilty to nine offences which were primarily related to child pornography.



4 The judge imposed an overall sentence of 6 years 4 months with a non-parole component of 4 years dating from 15 December 2007. The applicant will be eligible for release on parole on 14 December 2011.



5 Counts 1 to 3 on the indictment were offences of using a carriage service in an offensive manner contrary to s 474.17(1) of the Criminal Code Act 1995 (Cth). The prescribed maximum penalty is imprisonment for 3 years. In each case the judge imposed a sentence of imprisonment for a fixed term of 9 months commencing on 15 December 2007.



6 Counts 4 to 5 were offences of disseminating child pornography contrary to s 91H(2) of the Crimes Act 1900. The maximum penalty for this offence is imprisonment for 10 years. In each case the sentences were imprisonment for 3 years, with a non-parole period of 2 years, dating from 15 June 2008.



7 Count 6 was an offence of using a carriage service to transmit child pornography contrary to s 474.19(1)(a)(iii) of the Criminal Code Act. The maximum penalty that prevailed at the time of the offence was imprisonment for 10 years (it has since been increased to 15 years) and the sentence imposed was imprisonment for 3 years, with a non-parole period of 2 years, dating from 15 December 2008.



8 Counts 7 and 8 were offences of possessing child pornography contrary to s 91H(3) Crimes Act (since repealed). The maximum penalty that prevailed at the time of the applicant’s offences was imprisonment for 5 years. The sentence imposed in respect of count 7 was imprisonment for 3 years with a non-parole period of 1 year dating from 15 June 2010. The sentence for count 8 was imprisonment for 3 years 4 months with a non-parole period of 1 year dating from 15 December 2010.



9 Count 9 was an offence of using a carriage service to groom a child for sexual activity contrary to s 474.27(1) of the Criminal Code Act. The maximum penalty for this offence is imprisonment for 12 years. A sentence of 3 years imprisonment with a non-parole period of 1 year dating from 15 June 2010 was imposed.



10 In sentencing the applicant for the offence in count 6 he asked that 10 further offences of using a carriage service to transmit child pornography material be taken into account pursuant to s 16BA of the Crimes Act 1914 (Cth).



11 There are some technical errors in the sentencing orders. The sentences for counts one to three are for federal offences. They are to be served concurrently and, in combination, do not exceed three years. However, the judge failed to either make a recognizance release order or provide reasons for not doing so as required by s 19AC Crimes Act 1914 (Cth). Given the partial accumulation of sentences a recognizance release order would have served no useful purpose.



12 The sentences for counts 6 and 9 are also for federal offences and, in combination, they exceed three years. As a result, it was necessary for the judge to fix a single non-parole period in respect of those sentences, or make a recognizance release order: s 19AB(1) Crimes Act 1914 (Cth). This error is amenable to correction in the sentencing court pursuant to s 19AH or by this Court if it comes to re-sentence.


Facts


13 There was a very lengthy statement of agreed facts tendered to the judge but for present purposes a brief summary will suffice.


14 The offences in counts 1 and 2 of using a carriage service to cause offence occurred on 31 July and 4 August 2007. They involved the applicant having telephone conversations with school boys in which masturbation was discussed.


15 The offence in count 3 of using a carriage service to cause offence occurred on 31 August 2007 and involved the applicant sending a number of text messages to another person in which he described a sexual attraction to adolescent boys.


16 The offence in count 4 of disseminating child pornography was concerned with a meeting by the applicant with an undercover police officer on 4 September 2007. During the course of the meeting the applicant showed to the officer some child pornographic material on his laptop computer. He then recorded a quantity of this material onto a CD which he provided to the officer. The material included still photographs and videos of adolescent and preadolescent males engaging in sexual activity, sometimes with adult males. One of the videos depicted a boy aged around ten whose feet and hands were bound by rope behind his back, lying face down on a bed, while an obese middle aged male engaged in acts of sexual intercourse with him.


17 The offence in count 5 of disseminating child pornography concerned another meeting with a police undercover officer on 11 September 2007. They had a conversation over lunch which included discussion of sexual activity with young males. The two then proceeded to the officer’s car where the applicant produced a laptop computer from a carry bag and showed various child pornographic images to the officer. He told the officer that he had received this material from adult males who identified themselves as “boy-lovers”. The officer then produced a USB flash drive in order for the applicant to copy some of the material on to it. The applicant complied. The material comprised videos and still images of naked and partially naked children aged 9 to 14 years engaging in oral and anal sexual intercourse.


18 The offence in count 6 of using a carriage service to transmit child pornography concerned an email sent by the applicant to the undercover officer on 5 October 2007. The email had a four page document attached in which there was a story written by the applicant in the first person. The story described an imaginary day spent by the applicant, the officer, and two adolescent males during the course of which they engaged in sexual activity described in graphic terms.


19 The next offence committed was that in count 9 of using a carriage service to groom a person under 16 for sexual activity. It concerned online communication on 22 October 2007 between the applicant and a person he thought was an adolescent male but who in reality was a police officer. The discussion involved the applicant proposing that they should meet and engage in sexual activity. The communication concluded with the applicant indicating that he intended to meet the “young person” the following Saturday. He provided his real name and mobile telephone number.


20 The following day, 23 October 2007, police executed a search warrant at the applicant’s home in South West Rocks and seized a quantity of child pornographic material. This became the offence in count 7 of possessing child pornography. The material was stored on the applicant’s laptop computer and on various storage media. It comprised still images and videos depicting young males, some aged under ten years, engaging in various forms of sexual activity. The applicant was arrested, charged and granted bail. Police did not disclose to him the evidence they had compiled in relation to the earlier offences.


21 The final offence was that in count 8 of possessing child pornography. On 15 December 2007 police again attended the applicant’s home with a search warrant and seized a further quantity of child pornographic material. The material again comprised both still images and short videos depicting young boys aged from 8 to 16 engaging in various forms of sexual activity. Following his arrest on this occasion the applicant was refused bail and remained in custody until the date of sentencing.


22 In all, the applicant was found to be in possession of child pornographic material comprising in excess of 2300 still images and 70 movies or videos. The material depicted numerous children and, by reference to the COPINE scale of classification of child pornography, spanned the full range from least to most serious.


23 The 10 offences taken into account in the determination of the sentence for count 6 involving communications by way of telephone conversations, SMS messages and emails, mostly, but not only, with a police undercover officer, in which sexual activity with adolescent males was described and discussed. These offences occurred between the 31 July and 20 October 2007.


24 The sentencing judge found that the possession offences fell “around the middle of the range of objective seriousness”. He regarded the second possession offence (count 8) as including the aggravating factor that the applicant was on bail for the earlier offence (count 7). He concluded that the applicant disseminated child pornography with an expectation of receiving benefits in return. Although not for profit, the applicant had exchanged material in a secret trading exercise with others with similar interests. With respect to the grooming charge the judge noted that the police regarded the applicant as a predator and a significant danger to the community and, he said, “rightly so”. The fact that the undercover officer may have encouraged the applicant to groom the person who he thought was an adolescent male was a mitigating factor, but only to a relatively small degree.


Subjective features


25 The applicant was born in 1968 and so was aged 38 at the time of the offences. He was born in Sydney and was raised in a close and supportive family environment.


26 He married in 1999 but separated in 2004. The relationship produced two children who remained living with their mother. His wife informed the author of the Pre Sentence Report that she had wanted a stable life but the applicant had seemed incapable of providing it. To the contrary, she said that his behaviour had become erratic and bizarre. He would periodically act in a very irresponsible manner “spending money on anything and everything”. His associated elevated mood was in contrast to other occasions when she said that he was so depressed that he was even unable to get to work. Nevertheless his wife remained in regular contact with him whilst he was in custody and was described as “an important source of emotional support”.


27 The applicant left school upon obtaining the Higher School Certificate and then worked for Telstra for about a year before entering the police academy. He worked as a police officer for 16 years before being discharged on medical grounds. At the time of his discharge he was living on the mid-north coast and subsequently found work cleaning holiday accommodation and working in a supermarket.


28 The applicant conceded that he had been aware since the age of 13 that he had an attraction to adolescent boys. He believed this stemmed from a homosexual experience with an older man when the applicant was around that age. He described to Dr Olav Nielssen, psychiatrist, several intense infatuations with prepubescent boys, although he said that he was only ever sexually attracted to adolescent boys. He claimed that all of his infatuations had been non-sexual in nature and that he had never acted upon any of his sexual fantasies.


29 The applicant was diagnosed with depression in 2002. Thereafter he came under the care of a number of mental health professionals, received various medications, and on occasion was admitted to mental health facilities as an inpatient. In March 2004 he attempted suicide but was saved by his wife. In September 2004 he disclosed to a doctor his concern about a constant attraction towards adolescent boys. This topic was the subject of further discussion with his doctor in the ensuing months. Treatment of the applicant’s depression with medication continued through to the time of the offending behaviour in the latter half of 2007.


30 In September 2007 the applicant attended a counselling appointment at the Kempsey Mental Health Service. During the course of this consultation he again disclosed his attraction to young boys. A provisional diagnosis was made on that occasion of depression and alcohol abuse disorder.


31 Three days after his arrest on 23 October 2007 the applicant consulted his general practitioner and discussed his attraction to boys and his recent arrest. He also spoke of his symptoms of depression and indicated a willingness to be admitted to an appropriate mental health facility. On 8 November 2007 he was admitted as an inpatient at the Northside West Clinic in Sydney where he remained until 25 November. During that period he had a number of discussions with a psychiatrist, including about his sexual attraction to young boys. The discharge summary from the clinic recorded a diagnosis of “adjustment disorder with depressed mood” and “alcohol dependence”.


32 The applicant was arrested and went into custody three weeks later. In March 2008 he was examined by Dr Samson Roberts in his capacity as visiting psychiatrist at Long Bay Correctional Complex. Dr Roberts commenced the applicant on a course of medication and had regular subsequent reviews prior to reporting in September 2008 that he had diagnosed the applicant with Bipolar 1 disorder. Dr Roberts’ report includes that the applicant had previously been prescribed antidepressant medication which, in the absence of mood stabilizing medication, was expected to exacerbate the instability which is a feature of Bipolar disorder.


33 Reports of Dr Roberts and Dr Olav Nielssen were before the sentencing judge. Dr Nielssen made the diagnosis of “Bipolar disorder (manic depressive illness), currently in remission” and “Alcohol abuse disorder, also in remission”. His report includes the following:


Bipolar disorder is a form of psychotic illness that during its manic phase creates a falsely optimistic outlook, often accompanied by impaired social judgment and decreased concern about social rule. Mr Minehan’s manic state in the year before his arrest was probably a factor contributing to his behaviour in meeting people with similar interest and writing pornographic stories.


34 Dr Nielssen also stated, “the pattern of Mr Minehan’s activity seems to be linked to the phases of Bipolar mood disorder, which is now under control as a result of appropriate psychiatric care”.


35 The applicant’s evidence before the sentencing judge included that he had been in protective custody since his arrest. It also included that he had been wounded as a result of an attack made upon him by a fellow inmate. His former employment as a police officer was a factor in these events. The judge noted these matters and there is no issue as to the manner in which he took them into account.


36 The judge also took into account that the applicant was a person of prior good character. He noted that he had been, “a good police officer and also a good family man”. Having announced those findings, however, the judge continued to state that this was, “not a matter of great significance when dealing with offences of this kind”.


37 The judge found that the applicant was “genuinely sorry for his offending” and assessed his prospects of rehabilitation as being “at least reasonably good”.


38 The offender had pleaded guilty in the Local Court and for this the judge said that he would reduce the sentences that he would otherwise have imposed by 20 per cent. He said that had the applicant been convicted after trial a total sentence “of at least 8 years imprisonment would have been warranted”.


39 The judge then noted that the ratio of the non-parole period and the total term for Commonwealth offences was usually 60 to 66 percent. In respect of the State offences he made a finding of special circumstances. These, he said, were the need for the applicant to receive counselling and psychiatric assistance, including whilst on parole; that he was in protective custody; and that it was his first experience of incarceration.


Grounds of appeal


40 Two grounds of appeal were filed:


1. The sentencing judge failed to have proper regard to the sentencing principles relating to mental illness and failed to give proper weight to the mental illness of the applicant when sentencing him.

2. The sentences are manifestly excessive.


41 Section 91H(3) was repealed by the Crimes Amendment (Sexual Offences) Act 2008. The offence of possessing child pornography was removed into s 91H(2), thereby having the effect of increasing the maximum penalty to imprisonment for 10 years. Section 19(1) of the Crimes (Sentencing Procedure) Act 1999 provides that any increased penalty only applies to offences committed after the commencement of the provision bringing about such increase. The increased penalty for this offence took effect from 1 January 2009. The applicant’s offences were committed in 2007.


42 It was noted after judgment was reserved that the sentencing judge had incorrectly referred to the maximum penalty for the applicant’s offences as being 10 years. The parties were notified and, as a result, the applicant sought leave to rely upon a further ground of appeal. Further written submissions were received from both parties.


43 The further ground of appeal is:


3. In relation to Counts 7 and 8, the sentencing judge erred by misdirecting himself as to the correct maximum penalty for the subject offences and so fell into error in arriving at an appropriate sentence for those Counts.


Ground 1 – treatment of mental illness issue


44 The applicant contended under this ground that there were two ways in which the sentencing judge was in error. First, he failed to find that the offender’s moral culpability was reduced on account of his mental illness. Secondly, he did not sufficiently reduce the influence that general deterrence should have upon the assessment of sentence.


45 It was submitted on behalf of the applicant that the sentencing judge found there to be a causal link between the applicant’s mental illness and his offending behaviour. Reference was made to the judge having quoted from the report of Dr Roberts, particularly:


During periods of mood elevation he was noted to have spent excessively, inappropriately and erratically, made grand ill-considered business plans and engaged in conduct reflective of impaired judgment and indifference to consequences of his conduct.


46 Reference was also made to the judge quoting from the report of Dr Nielssen:


Manic state in the year before his arrest was probably a factor contributing to his behaviour in meeting people with similar interests and writing pornographic stories.


47 It was submitted that meeting such people and writing pornographic stories was the gravamen of some of the subject offences. Reference was also made to the following passage in the remarks on sentence:


In my view the diagnoses by these two doctors are an important factor on sentence. It appears that for many years whilst struggling with the attraction to young adolescents the offender was able to control that attraction. However, his episodes of mania appear to have been increasing in length and intensity, if it is accepted that in the last year he was at least mildly manic for most of the time as appears to be accepted by the psychiatrists his behaviour takes on a different character. It does not excuse it.


To the contrary the offender was well aware throughout the whole period that what he was doing was grossly wrong, but the reduction in his level of normal control created by the mania appears to have contributed to him engaging in more active participatory offences. I accept that he had that condition because in my view it appears to make sense of the history of the man. As such it is a factor that reduces to some extent the need for the sentence to reflect general deterrence.


48 Given this finding of a causal link between the illness and the offending it was submitted that it was properly open to the judge to find that the moral culpability of the applicant was reduced and, as a consequence, there was less call for denunciation and punishment than would otherwise be appropriate. Counsel for the applicant referred to the judgment of Sperling J in R v Hemsley [2004] NSWCCA 228 where his Honour stated:


[33] Mental illness may be relevant – and was relevant in the present case – in three ways. First, where mental illness contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced; there may not then be the same call for denunciation and the punishment warranted may accordingly be reduced: Henry at [254]; Jiminez [1999] NSWCCA 7 at [23]; Tsiaras [1996] VicRp 26; [1996] 1 VR 398 at 400; Lauritsen [2000] WASCA 203; (2000) 114 A Crim R 333 at [51]; Israil [2002] NSWCCA 255 at [23]; Pearson [2004] NSWCCA 129 at [43].


[34] Secondly, mental illness may render the offender an inappropriate vehicle for general deterrence and moderate that consideration: Pearce (NSW CCA, 1 November 1996, unreported); Engert (1995) 84 A Crim R 67 at 71 per Gleeson CJ; Letteri (NSW CCA, 18 March 1992, unreported); Israil at [22]; Pearson at [42].


[35] Thirdly, a custodial sentence may weigh more heavily on a mentally ill person: Tsiaras at 400; Jiminez at [25]; Israil at [26].


[36] A fourth, and countervailing, consideration may arise, namely, the level of danger which the offender presents to the community. That may sound in special deterrence: Israil at [24].


49 It was submitted that the judge erred in not giving consideration to the first of the issues mentioned by Sperling J at [33]. It was conceded, however, that he was not asked to. The submission made to the judge by counsel then appearing for the applicant was that:


Where the offences can be seen to be causally connected with mental illness ... general deterrence isn’t the factor that then carries as much weight.

50 Counsel for the Crown submitted that whilst the sentencing judge did not make an explicit finding that the applicant’s moral culpability was reduced on account of his mental illness, his remarks disclose that (a) he regarded the diagnoses of the psychiatrists as important factors in sentencing; (b) he found that the applicant was well aware throughout the period of offending that what he was doing was “grossly wrong”, but (c) he accepted that the reduction in the level of “normal control” contributed to the applicant engaging in “more active participatory offences”.


51 Accordingly, the Crown submitted, whilst the judge only referred to the applicant’s mental condition operating to reduce “to some extent the need for the sentence to reflect general deterrence”, it is implicit that the judge also had in mind that it was an influence in the commission of at least the offences involving “more active participation”.


52 As to the general deterrence issue, counsel for the applicant drew attention to authorities which stress its importance in sentencing for offences of this nature. It was submitted that a “proper moderation of the general deterrence consideration on the grounds of the applicant’s diagnosed mental illness assumed particular importance in the sentencing of the applicant”. It was submitted that although the judge indicated that the need for general deterrence was “somewhat reduced” he failed to fully consider whether the illness rendered the applicant an inappropriate vehicle for general deterrence and thus whether there should have been a greater moderation of that consideration.


53 In response the Crown referred to the following in the judgment of Grove J in Hemsley, supra, with which Dowd J agreed:


[5] ... It is not the case that persons afflicted by an underlying mental incapacity are exempt from any inclusion of an element of general deterrence in sentence assessment but it was requisite for consideration to be given to whether, in the circumstances of this appellant, that element should be included, excluded or ameliorate.

54 Sperling J was of the view that the sentencing judge had erred by not taking the applicant’s mental condition into account in any of the four respects he had identified: Hemsley at [37]. Grove J, as indicated in the passage just quoted, identified the error as one of failing to give consideration to one of those issues. Dowd J agreed with both Grove and Sperling JJ. It may be simply a matter of expression but the formulation of Grove J serves to highlight the discretionary nature of the judgment called for.


Determination


55 I am satisfied that the judge did give consideration to the various ways in which the applicant’s mental condition may have been relevant. He did not use an expression such as “reduced moral culpability”. He did, however, pose for himself the question, “why would this man engage in this conduct” before embarking upon an extensive review of the history of the applicant’s condition. He referred to the attraction to adolescent boys the applicant had held since he himself was an adolescent. He accepted that this was a constant factor in the applicant’s life but one which was largely kept under control and not acted upon, even though the applicant had access to young males, for example through his work with youth clubs.


56 The judge noted a deterioration in the applicant’s life after he had been medically discharged from the police force and his marriage had broken down. He had regard to the history of depression and also to the observations of the applicant’s wife concerning his significant mood swings. The judge then turned to the reports of Drs Nielssen and Roberts, quoting passages from each including expressions of opinions about the applicant’s bipolar condition being a contributing factor in relation to his offending behaviour.


57 It was after this extensive review of the evidence that the judge expressed his own conclusions in the passage I have quoted earlier. This included the judge finding that if the applicant was “at least mildly manic for most of the time as appears to be accepted by the psychiatrists his behaviour takes on a different character”. He also found that, although the applicant was well aware that what he was doing was grossly wrong, “the reduction in his level of normal control created by the mania appears to have contributed to him engaging in more active participatory offences”.


58 Although the judge immediately said that this was a factor that reduced “to some extent the need for the sentence to reflect general deterrence”, I cannot accept that the applicant’s history and the psychiatric diagnosis had no part to play in the judge’s assessment of the seriousness of the offences and, importantly, the appropriate sentences to impose. His Honour has extensive experience in criminal law. A conclusion that he completely ignored the explanation for the applicant’s offending conduct in any respect, other than in assessing the emphasis to be given to general deterrence, is not a finding that should lightly be made, particularly given the extensive and careful analysis he gave to the evidence relevant to the issue. Moreover, immediately after the passage of the sentence remarks relied upon by the applicant in relation to this ground, the judge proceeded to deal with the issues of rehabilitation prospects, likelihood of re-offending and special circumstances and took the applicant’s mental condition into account in relation to each of them as well.


59 The contention that the judge did not adequately ameliorate the influence that general deterrence would have in the assessment of sentence is one that cannot be sustained. The issue was one calling for the exercise of discretionary judgment and, as Johnson J recently observed in Majid v R [2010] NSWCCA 121:


[40] Circumstances in which matters of weight will justify intervention by this court are narrowly confined, whether the proceeding is a Crown appeal or an offender’s application for leave to appeal with respect to sentence: R v Baker [2000] NSWCCA 85 at [11]; Ryan v R [2009] NSWCCA 183 at [33]; Cao v R [2010] NSWCCA 109 at [57].


60 The weight that a sentencing judge gave, or did not give, to a specific issue is impossible to determine with any precision. The only real measure is the sentence ultimately imposed. Counsel for the applicant put the contention in a nutshell in his oral submissions when he referred to the judge having, “said general deterrence would be to some extent diluted, (but) the sentence that resulted did not reflect what his Honour said he would do” (T10.20). This, in reality, is a matter that should be considered in the context of ground 2.


61 It should be remembered, in any event, that the sentencing judge found that “the offender was well aware throughout the whole period that what he was doing was grossly wrong”. This was a conclusion well open to the judge to make in the light of the applicant’s evidence that he was aware at the time of his offending conduct that it constituted very serious offences.


62 In Regina v Wright (1997) 93 A Crim R 48 at 50 - 51 Hunt CJ at CL stated:


It is an accepted principle of sentencing that general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others. In most of the cases in which that principle is applied, the offender has suffered from a significant mental illness or retardation, but such a condition is not a necessary condition for the principle to be applied. Considerations of general (or even personal) deterrence are not rendered completely irrelevant, and the significance of the offender's mental incapacity is to be weighed and evaluated in the light of the particular facts and circumstances of the individual case. The reason for the principle is that the interests of society do not require such persons to be punished as severely as persons without that disability because such severity is inappropriate to their circumstances. The full understanding of the authority and requirements of the law which is attributed to the ordinary individual of adult intellectual capacities cannot be expected of a person whose intellectual function is insufficient to have that understanding. The means by which the courts give effect to that principle (as an instrument of social administration) is to moderate the consideration of general deterrence to the circumstances of the particular case. But, if the offender acts with knowledge of what he is doing and with knowledge of the gravity of his actions, the moderation need not be great. (Emphasis added). (Citations of authority omitted).


63 I would not uphold ground 1 on either of the two bases advanced by the applicant.


Ground 3 – error as to maximum penalty


64 It is convenient to deal next with the additional ground of appeal concerning the maximum penalty for the offences in counts 7 and 8.


65 The judge was correctly informed by the Crown by way of written submissions that the maximum penalty for the offences of possession of child pornography contrary to s 91H(3) was imprisonment for 5 years. However, at the beginning of his remarks on sentence, in outlining the offences and the applicable maximum penalties, he said:


The offender has also pleaded guilty to two offences of disseminating child pornography and two offences of possession of child pornography. Those four offences under s 91H of the Crimes Act (NSW) carry a maximum penalty of ten years imprisonment.

66 The Crown did not oppose leave being granted to the applicant to rely upon the additional ground of appeal and has conceded the error for which the applicant now contends.


67 In Smith v R [2007] NSWCCA 138, James J considered the significance of an error as to the maximum penalty for an offence as follows:


[33] There will clearly be cases where an error by the sentencing judge as to the maximum penalty for the offence for which the offender is being sentenced will require that an appeal against sentence be allowed. An extreme example is Sharwood v Regina [2006] NSWCCA 157 where a sentence imposed actually exceeded the correct maximum penalty.

[34] However, an error by the sentencing judge as to the maximum penalty for the offence for which the offender is being sentenced will not necessarily require that an appeal against the sentence be allowed. In R v Kairouz [2005] NSWCCA 247 Wood CJ at CL in considering an application for leave to appeal by Charbel Kairouz, said, with the concurrence of the other members of the Court, at [24] of his judgment:-


“It is the case that his Honour did make the error referred to in Ground 5 in that he noted, at p 2 of the reasons, that the maximum sentence for this offence was imprisonment for 25 years whereas it was in fact 20 years. It does not follow that the head sentence and non-parole period should each be reduced, as the Applicants contended, by 25% (or more correctly by 20%), so as to correct this error. Sentencing does not occur in such a linear or mathematical environment. What was important was that the sentence reflect an appropriate penalty in the light of the overall sentencing pattern for the offence in question, and in the light of the objective and subjective circumstances of the particular case. Whether it did so or not depends on the remaining grounds, although it is to be accepted that the patent error which was identified is sufficient to justify the granting of leave to appeal.”

[35] In Kairouz the Court of Criminal Appeal granted Charbel Kairouz leave to appeal but dismissed his appeal against sentence.

[36] The significance of the maximum penalty for an offence was discussed by Gleeson CJ, Gummow, Hayne and Callinan JJ in their joint judgment in Markarian v The Queen [2005] HCA 25; (2005) 79 ALJR 1048 especially at paras [30] and [31]. Their Honours said:-


“[30] Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. In their book Sentencing, Stockdale and Devlin observe that:

A maximum sentence fixed by Parliament may have little relevance in a given case, either because it was fixed at a very high level in the last century ... or because it has more recently been set at a high catch-all level ... At other times the maximum may be highly relevant and sometimes may create real difficulties ...


A change in a maximum sentence by Parliament will sometimes be helpful [where it is thought that the Parliament regarded the previous penalties as inadequate].


[31] It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick....”

[37] This first ground of appeal has been made out. However, I will reserve my consideration of the materiality of the sentencing judge’s error until I deal with the third ground of appeal.

68 Ultimately a ground asserting that the sentences imposed upon the applicant were manifestly excessive was upheld and lesser sentences were imposed.


69 There is some controversy about whether an error as to the maximum penalty applying to one, or some, offence(s) in a multiple offence sentencing exercise may be “technical”, or is “fundamental”. Different views were expressed by Simpson J (at [3]) and Howie J (at [8]) in Marshall v R [2007] NSWCCA 24. There was agreement, however, that the significant question was whether the error infected the overall sentencing discretion.


70 It is not necessarily the case that an error by a sentencing judge as to the applicable maximum penalty for an offence will result in an appeal being upheld. R v Kairouz [2005] NSWCCA 247, referred to by James J in Smith v R above, is one example where the appeal was dismissed and Regina v Zakaria [2002] NSWCCA 450 is another. The question is whether this Court “is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed”: s 6(3) Criminal Appeal Act 1912.


71 To succeed on such a ground it is not necessary for the applicant to establish that the sentences, individually or in combination, are manifestly excessive: Baxter v Regina [2007] NSWCCA 237; (2007) 173 A Crim R 284 per Spigelman CJ at [11] - [14] and Kirby J at [60], Latham J agreeing with both. Latham J succinctly explained in Maldonado v R [2009] NSWCCA 189 (a case concerned with a different but not dissimilar error):


[19] Mere identification of an error in the sentencing proceedings is not sufficient to enliven s 6(3) of the Criminal Appeal Act 1912. The error must be a material error, that is, not technical or trivial in nature. If it has the capacity to infect the exercise of the sentencing discretion, this court has an obligation to re-exercise that discretion and substitute another sentence, unless satisfied that no lesser sentence is warranted in law. It is not necessary for the applicant to persuade the court that the sentences are manifestly excessive before he may succeed on this ground: Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284.


72 I am of the view that this ground is made out. I am also of the view that in respect of both counts 7 and 8, lesser sentences were warranted and should have been passed. I will explain my reasons at the end of my consideration of the remaining ground of appeal.



Ground 2 – sentence manifestly excessive


73 It was submitted on behalf of the applicant that the sentences were manifestly excessive given the “powerful” subjective circumstances and the findings made that were beneficial to the applicant. Reference was made to six other cases involving sentencing for similar types of offences. It was submitted that having regard to the sentences imposed in those cases, those imposed upon the applicant were manifestly excessive. Counsel for the applicant conceded in oral submissions that the primary complaint under this ground was directed to the aggregate sentence. It was accepted that it was open to the judge to have partially accumulated the sentences, the argument being confined to the extent to which he did. Counsel also maintained that the individual sentences were excessive, although submissions in this respect focussed upon counts 6 and 9.


74 In relation to the offence in count 6 (using carriage service to transmit child pornography), attention was invited to the facts in Whiley v R [2010] NSWCCA 53. In that case the applicant had created child pornographic material in the nature of drawings and handwritten text from his imagination and for his own gratification. There was no suggestion that any children had been exploited or victimised. These were factors forming part of the assessment by James J (McClellan CJ at CL and Rothman J agreeing) that the sentencing judge had erred by not finding that the offences fell near the bottom of the range of objective seriousness.


75 In the present case, counsel conceded that there was dissemination of the material created by the applicant but submitted that, like in Whiley, it was significant that the material was the product of imagination and no actual child had been harmed in the process.


76 In relation to the grooming offence (count 9) it was submitted that there was an element of police entrapment which mitigated its seriousness.


77 The Crown drew attention to the judge’s finding that the possession offences fell “around” the middle of the range of objective seriousness. I assume that meant that he found them to be either in the middle of the range or, if above or below it, only slightly so.


78 The Crown pointed to the multiplicity of different types of offences and to the judge having highlighted that the applicant’s conduct included involvement in “participatory offences”, the most serious being the grooming offence.


79 A further matter argued by the Crown was that in respect of count 6 (use carriage service to transmit child pornography) the judge was obliged to take into account the 10 further offences listed on the s 16BA schedule and so it was to be expected that a longer sentence would be imposed in respect of that count. The Crown, however, noted that although the judge indicated an intention to proceed in that fashion, he did not give effect to that intention. His Honour imposed the same sentence for count 6 as he did for counts 4 and 5 (disseminate child pornography). Counts 4 and 5 comprised State offences but with similar ingredients and the same maximum penalty.


80 In relation to the entrapment issue the Crown submitted that the judge was alive to it and took it into account, the extent to which he did being a matter entirely for his discretion. After referring to the police perceptions of the applicant “as predatory and a significant danger to the community” and that their “investigations were aimed at eliminating that danger before the offender perpetrated any more serious offences”, the judge said:


There was frankly nothing in the evidence here to suggest that police perceptions were other than properly justified. Certainly in the latter periods referred to in the facts his sexual interests and activities, partly encouraged by the police, had significantly escalated. The fact that he might have been encouraged to enter into the grooming of Justin by police, whilst mitigating the seriousness of the offence to some extent, only does so to a relatively small degree.


Determination


Assessment of seriousness of offences


81 As some of the submissions were concerned with the objective seriousness of the offences that relate to child pornography (counts 4 to 8) it is useful to review the matters that may be relevant to that assessment.


82 R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29 was concerned with an offence of importation of child pornography. Johnson J (McClellan CJ at CL and Adams J agreeing) reviewed relevant authorities before concluding the following as to factors bearing upon the assessment of the objective seriousness of offences of possessing or importing child pornography.


[99] ... a range of factors bear upon the objective seriousness of an offence of possession or importation of child pornography. These factors include:

(a) the nature and content of the pornographic material – including the age of the children and the gravity of the sexual activity portrayed;

(b) the number of images or items of material possessed by the offender;


(c) whether the possession or importation is for the purpose of sale or further distribution;


(d) whether the offender will profit from the offence.


It might be worth noting, however, that the number of images as such may not be the real point. In a case of possession of child pornography for personal use only, the significance of quantity lies more in the number of different children who are depicted and thereby victimised.


83 In Whiley v R, supra, James J (McClellan CJ at CL and Rothman JJ agreeing) referred to the above passage from Gent and said:


[57] In my opinion, the factors identified by Johnson J in Gent are also applicable to offences of producing child pornography. (Emphasis added).

84 R v Oliver, Hartrey and Baldwin [2003] 1 Cr App R 28 comprises a guideline judgment in relation to offences of taking, making, distributing or showing indecent photographs of a child; possessing such photographs with a view to their being distributed or shown; or advertising that a person distributes or shows such photographs or intends to do so. It was also concerned with offences involving the bare possession of indecent photographs of a child. Rose LJ, delivering judgment for the Court of Appeal, said, “the two primary factors determinative of the seriousness of a particular offence are the nature of the indecent material and the extent of the offender’s involvement with it” (at [9]). Concerning the latter, he said:


[11] As to the nature of the offender’s activity, the seriousness of an individual offence increases with the offender’s proximity to, and responsibility for, the original abuse. Any element of commercial gain will place an offence at a high level of seriousness. In our judgment, swapping of images can properly be regarded as a commercial activity, albeit without financial gain, because it fuels demand for such material. Wide-scale distribution, even without financial profit, is intrinsically more harmful than a transaction limited to two or three individuals, both by reference to the potential use of the images by active paedophiles, and by reference to the shame and degradation to the original victims.

[12] Merely locating an image on the internet will generally be less serious than down-loading it. Down-loading will generally be less serious than taking an original film or photograph of indecent posing or activity. ...


85 Specific factors capable of aggravating the seriousness of a particular offence were said (at [20]) to be:


(i) If the images have been shown or distributed to a child.

(ii) If there are a large number of images. It is impossible to specify precision as to numbers. Sentencers must make their own assessment of whether the numbers are small or large. ...


(iii) The way in which a collection of images is organised on a computer may indicate a more or less sophisticated approach on the part of the offender to trading, or a higher level of personal interest in the material. An offence will be less serious if images have been viewed but not stored.


(iv) Images posted on a public area of the internet, or distributed in a way making it more likely they will be found accidentally by computer users not looking for pornographic material, will aggravate the seriousness of the offence.


(v) The offence will be aggravated if the offender was responsible for the original production of the images, particularly if the child or children involved were members of the offender’s own family, or were drawn from particularly vulnerable groups, such as those who have left or have been taken from their home or normal environment, whether for the purposes of exploitation or otherwise, or if the offender has abused a position of trust, as in the case of a teacher, friend of the family, social worker, or youth group leader.


(vi) The age of the children involved may be an aggravating feature. In many cases it will be difficult to quantify the effect of age by reference to the impact on the child. But in some cases that impact may be apparent. For example, assaults on babies or very young children attract particular repugnance and may, by the conduct depicted in the image, indicate the likelihood of physical injury to the private parts of the victim. Some conduct may manifestly (that is to say, apparently from the image) have induced fear or distress in the victim, and some conduct which might not cause fear or distress to an adolescent child, might cause fear or distress to a child of, say, 6 or 7.


86 In Saddler v R [2009] NSWCCA 83, Buddin J (at [23]) referred to Oliver (and Gent) as useful authorities but expressed caution that it be recognised that it (they) were not concerned solely with the offences of possession with which the Court was concerned in Saddler. As the offences in Counts 4 to 8 in the present case are concerned with possession, dissemination and transmission, the factors identified in Oliver may be seen as more useful than in a case involving possession alone, although the factors concerned with the making or production of material may be put aside.


87 There have been cases in which the child pornographic material is not an actual depiction or description of a real child, or there is no evidence affirmatively establishing that fact. One example is Whiley to which I have already referred. Another is McEwen v Simmons & Anor [2008] NSWSC 1292; 73 NSWLR 10, in which Adams J held that it was open to a magistrate to find that a series of cartoon figures modelled on members of an animated television series (“The Simpsons”) were within the meaning of “person” in the definition of “child pornography material” in s 473.1 of the Criminal Code and the definition of “child pornography” in s 91H(1) of the Crimes Act.


88 In R v Jarrold [2010] NSWCCA 69 there was a variety of offences but three concerned the production of child pornography. They arose from the offender’s internet communications which included descriptions of sexual activity with children. The sentencing judge regarded them as “fantasies from the offender’s mind, rather than actual acts that ever happened to any actual child”. He did, however, regard it as significant that there was a possibility that the material could have been saved by the recipients and perhaps further disseminated to others. The Crown contended that there was no evidence to support the finding that the material was a product of fantasy. Howie J said:


[53] Whether or not the material discussed in the communications was the result of fantasies or accounts of actual events was irrelevant. If there was evidence to prove these events actually happened, other charges might have been brought against the respondent. If his Honour’s finding was made in order to diminish the seriousness of the offences, then he was in error.

89 Nevertheless, his Honour concluded (at [55]) that, “the offences were at the lower end of the range of activity that is covered by the section”.


90 The circumstances in Whiley and Jarrold are obviously different in that in the former, the material was generated for the offender’s own use, whereas in the latter it was generated for the purpose of transmission to others. In my view, and as James J recognised in Whiley, the fact that no actual children are used in the production of offending material is a relevant matter in the assessment of objective seriousness.


91 Some other factors have been identified in cases in other jurisdictions as relevant to the assessment of objective seriousness. In Colbourn v R [2009] TASSC 108, agreement was expressed by Blow J at [13] with what was said by McLure JA in Hutchins v Western Australia [2006] WASCA 258 at [26] that payment for the acquisition of child pornographic material can aggravate the offence. The rationale was said to be that it may do so, “by reflecting on the strength of the offender’s motivation for obtaining possession of child pornography”. It was also noted to be one way of contributing to an economic market for such material. Importantly, it was noted by McLure JA that, “The absence of payment does not mitigate the offending, but its presence may aggravate it”.


92 In R v Mara [2009] QCA 208 the applicant was a member of what was described (by Wilson J at [6]) as a “highly sophisticated group of individuals with the objective of pursuing a common interest in child pornography by the use of internet newsgroups”. This group traded in a large quantity of child exploitation material, including purchasing and commissioning its production. Highly skilful and sophisticated techniques were used to facilitate the commission of the offences and to avoid detection. It was held (at [37]) that the sentencing judge was correct to take into account, “the degree of sophistication and level of skill in the use of the internet and the attendant limited risk of detection in assessing the seriousness of the offending”.


93 In New South Wales the matters referred to in Mara could be relevant to a consideration of whether the statutory aggravating feature in s 21A(2) (n) Crimes (Sentencing Procedure) Act 1999 is present, namely that “the offence was part of a planned or organised criminal activity”. In a given case there may also be found other factors in s 21A(2) or (3) that are relevant to the assessment of the objective seriousness of the offence.


94 Drawing primarily from the authorities to which I have referred, the following matters may be relevant to an assessment of the objective seriousness of offences involving the possession or dissemination/transmission of child pornography:


1. Whether actual children were used in the creation of the material.

2. The nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed.

3. The extent of any cruelty or physical harm occasioned to the children that may be discernible from the material.

4. The number of images or items of material – in a case of possession, the significance lying more in the number of different children depicted.

5. In a case of possession, the offender’s purpose, whether for his/her own use or for sale or dissemination. In this regard, care is needed to avoid any infringement of the principle in The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383.

6. In a case of dissemination/transmission, the number of persons to whom the material was disseminated/transmitted.

7. Whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination/transmission.

8. The proximity of the offender’s activities to those responsible for bringing the material into existence.

9. The degree of planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating or transmitting the material.

10. Whether the offender acted alone or in a collaborative network of like-minded persons.

11. Any risk of the material being seen or acquired by vulnerable persons, particularly children.

12. Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted.

13. Any other matter in s 21A(2) or (3) Crimes (Sentencing Procedure) Act (for State offences) or s 16A Crimes Act 1914 (for Commonwealth offences) bearing upon the objective seriousness of the offence.


95 This list of factors is, of course, not closed. Individual cases may always produce further matters relevant to the assessment of their objective seriousness.


Importance of general deterrence and denunciation; previous good character of less significance


96 There are three other considerations that have been identified in the authorities as important in sentencing for offences concerned with child pornography that are appropriate to mention.


97 Johnson J referred in Gent, supra, to abundant authority for the proposition that general deterrence is a significant matter in sentencing for such offences. He also held that, in the circumstances of that case, it was open to the sentencing judge to accord less weight to evidence of the applicant’s prior good character: Gent at [45] – [69].


98 There may have been some misunderstanding in R v Fowler [2007] ACTCA 4 of what Johnson J said in this respect but there was reiteration by Price J in Mouscas v R [2008] NSWCCA 181. After referring to both Gent and Fowler, his Honour said:


[37] For the offence of possession of child pornography where general deterrence is necessarily of importance and is frequently committed by persons of prior good character, it is legitimate for a court to give less weight to prior good character as a mitigating factor.

99 This is consistent with the approach in England. In Oliver, supra, Rose LJ said:


[21] So far as mitigation was concerned, their Lordships agreed with the panel that some, but not much weight should be attached to good character.

100 In R v Booth [2009] NSWCCA 89, Simpson J set out (at [39] – [44] and [47]) a number of reasons why general deterrence is of such importance in relation to child pornography offences. At [47] her Honour added, “So also is denunciation of those who engage in this callous and predatory crime”.


101 The importance of general deterrence and denunciation has been recognised in other Australian jurisdictions: R v Mara, supra, at [20]; Director of Public Prosecutions (Cth) v D’Alessandro [2010] VSCA 60 at [21]; Baldwin v Police [2007] SASC 214; Furber v R [2008] WASCA 233 at [40]; Director of Public Prosecutions v Latham [2009] TASSC 101 at [1] and [46]; Walker v R [2008] NTCCA 7 at [34]. Gent, supra, is cited in each of these judgments.


The extent of accumulation


102 The extent to which the judge ordered that the sentences be partially accumulated was a matter for discretionary judgment guided by the principle of totality: R v MMK [2006] NSWCCA 272; 164 A Crim R 481, per Spigelman CJ, Whealy and Howie JJ at [13]. Accordingly, the question is whether the aggregate sentence imposed upon the applicant exceeded what was an appropriate reflection of the totality of criminality in the applicant’s nine offences: Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41, per Howie J at [27].


Comparative cases


103 A number of cases were referred to by both counsel for applicant and the Crown. I have considered the sentences in a significant number of other cases as well. It is not possible, however, to discern any particular pattern or identifiable range of sentencing applicable to the present case, particularly because of the mixture of different offences. In any event, I note the frequent statements in this Court about the limited utility in comparing sentences imposed upon other offenders in other cases: see, for example, the observations in Han v R [2009] CCA 300 by Campbell JA at [2] and Rothman J at [34].


104 For those reasons it would not be productive to descend into the detail of other cases. Suffice to say that the cases generally, and particularly R v Hitchen [2010] NSWCCA 77 (confining consideration to the sentences for the transmitting, accessing and possessing offences), Saddler, supra, R v Elliott [2008] NSWDC 238 and D’Alessandro, supra, do not leave me with any sense of unease about the sentences imposed in the present case being manifestly excessive.


Conclusion as to Ground 2


105 I am not persuaded that any of the individual sentences, aside from those imposed in respect of counts 7 and 8 which were the subject of the error identified under ground 3, are manifestly excessive. In making this assessment I have borne in mind the favourable findings made by the sentencing judge in relation to the applicant’s subjective circumstances and the allowance made for the pleas of guilty. I have also taken into account the applicant’s mental condition and its relationship to his offending behaviour. The influence of general deterrence upon the assessment of the sentences remains important, although of slightly less significance in this case for the reasons discussed earlier.


106 The offences in counts 1 to 3 (use carriage service in an offensive manner) comprised the discussion of sexual activity involving young males and, in count 3 comprised such a discussion with a boy aged 14. The sentences imposed were well within the range of sound discretionary judgment, particularly when regard is had to the fact that they were ordered to be served concurrently with each other.


107 In relation to the dissemination offences in counts 4 and 5, the nature of the material involved is the most significant feature, including depictions of young children subjected to various forms of penetrative sexual activity. In my view it was not a mitigating feature that the dissemination was to an undercover operative. The offences would have been more serious if the dissemination was otherwise. The sentences imposed were within an appropriate range, once again, particularly when regard is had to the fact that they are to be served concurrently with each other.


108 The transmission offence in count 6 involved material derived from the applicant’s imagination. The fact that no actual child was involved in the creation of the material was a relevant factor but, like in Jarrold, supra, that is more the absence of a factor that would have involved the commission of further offences. The sentence of 3 years, against a maximum penalty of 10 years, was well within range having regard to the fact that the judge was required to take into account 10 similar offences committed over a period of almost 3 months.


109 The sentence for count 9 (the grooming offence) involved discussion of sexual activity with a person the applicant thought was a male under the age of 16 years. It is important to bear in mind the element of the offence that the applicant had the intention thereby to make it easier to procure this “young” male to engage in sexual activity with him. The fact that the male was a police officer was a relevant matter and I have earlier referred to the approach taken by the sentencing judge to this issue. There was no error in that approach. It is notable that this very type of police investigative technique was contemplated when the offence was created by the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No 2) 2004 (Cth): House of Representatives, Parliamentary Debates (Hansard), 4 August 2004 at 32,035. I do not think that it can be said that a sentence of 3 years, against a maximum penalty of 12 years, is manifestly excessive.


110 That leaves for consideration the sentences imposed in respect of counts 7 and 8. The sentence for count 8 was longer than that for count 7 by a period of 4 months because of the fact that it was committed whilst the applicant was on bail. I have mentioned that the judge was of the view that “the offences fall around the middle range of objective seriousness”. He determined that there should be a reduction of sentence of 20 per cent on account of the applicant’s pleas of guilty. On those two findings alone, sentences of 3 years (count 7) and 3 years 4 months (count 8) cannot stand when regard is had to the correct maximum penalty of 5 years.


111 I am also of the view that the overall sentencing discretion was affected by the erroneous determination of the sentences for counts 7 and 8. The sentences for counts 1 to 6 were ordered to be served partially accumulative, with commencement dates of 15 December 2007, 15 June 2008 and 15 December 2008. But then the sentences for counts 7 and 9 were ordered to commence 18 months after the last of those, and the sentence for count 8 a further 6 months later. With lesser sentences imposed for counts 7 and 8, the degree of accumulation should also be less.


112 Affidavits by the applicant and his solicitor were read on the hearing of the application. That material provides new information as to the protective custody in which the applicant is being held. At the time of sentence he was in a “non-association” form of protection and the judge took into account in his finding of special circumstances that he was on “strict protection”. The strictness of that protection has since been reduced and he is now in “limited association” protective custody. There remain some restrictions and there are limitations on his ability to access some of the services and facilities available to mainstream inmates. It is appropriate that the finding of special circumstances be maintained.


113 The affidavit material also confirms other findings by the sentencing judge as to the applicant’s remorse and recognition of the gravity of his conduct. It includes a statement of his commitment to rehabilitation. The findings by the sentencing judge as to the applicant’s favourable subjective circumstances should be maintained, as should the extent of the reduction for the utilitarian value of the pleas of guilty.


114 I assess the appropriate sentences that should have been passed in respect of count 7 as being 2 years and in respect of count 8 as being 2 years 4 months.


115 The judge identified an overall sentence of 8 years which was then reduced for the applicants pleas of guilty to one of 6 years 4 months. In my view the total sentence should have been one of 6 years 6 months, reduced by 20 per cent for the pleas of guilty (and rounded down to achieve a practical result) to one of 5 years 2 months.


Conclusion


116 I would not uphold ground 1 but would uphold grounds 2 and 3.


117 In re-sentencing the applicant it will be necessary to correct the technical errors in the original sentencing orders identified earlier. It is also appropriate to alter the order in which some of the sentences are to be served in order to simplify the setting of a single non-parole period for the Commonwealth offences. Fixed term sentences should be maintained in respect of counts 1 to 3 because there is no utility in making a recognizance release order.


118 The different sentencing regimes in terms of ratio of non-parole period to total term when sentencing for a mixture of Commonwealth and State offences must be borne in mind: Cahyadi v Regina, supra, per Howie J at [36] – [40]. The sentences imposed in the District Court involved a non-parole component that was 63 per cent of the aggregate sentence, well within the usual proportion of 60 to 66 per cent generally regarded as appropriate for Commonwealth sentences. A similar relationship should be maintained in re-sentencing. Against a total term of 5 years 2 months, that would involve a period of 3 years 3 months as the minimum term to be served.


Orders



119 I propose the following orders.


1 Leave to rely upon ground 3 granted.


2 Leave to appeal granted.


3 Appeal allowed.


4 Sentences in respect of each of counts 1 to 5 confirmed.


5 Sentences imposed in respect of counts 6 to 9 quashed and in lieu the following sentences be imposed:


Count 7: Sentenced to imprisonment comprising a non-parole period of 1 year 6 months and a balance of the term of 6 months. The sentence to commence 15 December 2008. The non-parole period will expire 14 June 2010. The total term will expire 14 December 2010.

Count 8: Sentenced to imprisonment comprising a non-parole period of 1 year 9 months and a balance of the term of the sentence of 7 months. The sentence to commence 15 April 2009. The non-parole period will expire 14 January 2011. The total term will expire 14 August 2011.


Count 6: Sentenced to imprisonment for 3 years from 15 October 2009 and expiring 14 October 2012.


Count 9: Sentenced to imprisonment for 3 years from 15 February 2010 and expiring 14 February 2013.


In respect of counts 6 and 9, set a non-parole period of 1 year 5 months dating from 15 October 2009 and expiring 14 March 2011.



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