Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Burton v R [2020] NSWCCA 127 Hearing dates: 1 May 2020 Date of orders: 19 June 2020 Decision date: 19 June 2020 Before: Hoeben CJ at CL at [1] Walton J at [2] Harrison J at [3] Decision: (1) Grant leave to appeal against sentence (2) Dismiss the appeal Catchwords: APPEAL – sentence appeal – where communications sent via Skype of child pornography material in written form – where communications sent via Skype of indecent material to persons under the age of sixteen – where possession of child abuse material – where no victims of offence of sending child pornography in written form – whether error in assessment of objective seriousness – whether sentences imposed manifestly excessive Legislation Cited: Crimes Act 1900 (NSW), s 91H(2) Crimes Act 1914 (Cth), s 16BA Criminal Code (Cth), ss 473.1, 474.19(1), 474.27A(1) Cases Cited: Director of Public Prosecutions (Cth) v D'Alessandro (2010) 26 VR 477; [2010] VSCA 60 Franklin v R [2019] NSWCCA 325 Lees v R [2019] NSWCCA 65 Mulato v R [2006] NSWCCA 282 R v Coffey (2003) 6 VR 543; [2003] VSCA 155 R v Cook; Ex parte Director of Public Prosecutions (Cth) [2004] QCA 469 R v Gordon; Ex Parte Director of Public Prosecutions (Cth) (2011) 1 Qd R 429; [2009] QCA 209 R v Hutchinson [2018] NSWCCA 152 R v Porte [2015] NSWCCA 174; 252 A Crim R 277 Salafia v R [2015] NSWCCA 141 Whiley v R [2010] NSWCCA 53 Category: Principal judgment Parties: Jason Burton (Applicant) Crown (Respondent) Representation: Counsel: S Pararajasingham (Applicant) S Callan (Respondent) Solicitors: Armstrong Legal (Applicant) Director of Public Prosecutions (Cth) (Respondent) File Number(s): 2015/201261 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 02 December 2019 Before: North DCJ File Number(s): 2015/201261 Judgment 1. HOEBEN CJ at CL: I agree with Harrison J and the orders which he proposes. 2. WALTON J: I agree with the orders proposed by Harrison J and with his Honour's reasons for judgment. 3. HARRISON J: Jason Burton seeks leave to appeal against sentences imposed by his Honour North DCJ on 2 December 2019 for an offence of use carriage service to transmit child pornography material contrary to s 474.19(1) of the Criminal Code (Cth) (Count 1) and possess child abuse material contrary to s 91H(2) of the Crimes Act 1900 (Count 2). In sentencing for Count 1, his Honour took account, on a s 16BA schedule, of an offence of use carriage service to transmit indecent material to persons under the age of 16 years, contrary to s 474.27A(1) of the Criminal Code. The maximum penalty for Count 1 is 15 years imprisonment. The maximum penalty for Count 2 is 10 years imprisonment. 4. His Honour imposed the following sentences: 1. Count 2: a fixed term of imprisonment of 10 months commencing on 2 December 2019 and expiring on 1 October 2020. 2. Count 1: a term of imprisonment of 18 months commencing on 2 March 2020 and expiring on 1 September 2021 with Mr Burton to be released pursuant to a recognizance order at the expiration of 9 months being 1 December 2020. 1. The total effective sentence was therefore 21 months imprisonment with a non-parole period of 12 months. 2. Mr Burton relies upon two grounds of appeal: 1. His Honour erred in the assessment of the objective seriousness of Count 1. 2. The sentences imposed were manifestly excessive. Background 1. The proceedings on sentence took place over two days and his Honour delivered judgment on 2 December 2019. 2. The Crown tendered material including a Crown sentence summary with a statement of agreed facts, a booklet of sample images, some text message extracts and consultation notes. The Crown furnished written submissions and a table of comparative cases. In summary, the statement of agreed facts revealed the following. 3. Mr Burton was aged between 24 and 26 at the time of the offences, had no prior criminal history and was employed by the Australian Defence Force at the time of his arrest. 4. The offences under the Criminal Code arose out of communications sent by Mr Burton to parties using the Skype chat application. The offence under the Crimes Act arose out of four images located on Mr Burton's personal computer hard drive. 5. With respect to Count 1, Mr Burton engaged in online communications between about 10 January 2013 and 12 February 2015 with other persons and during those communications transmitted child pornography, which was in written form. 6. With respect to the Schedule offence, Mr Burton engaged in online communications between about 1 January 2013 and 11 May 2015 with persons whom he believed to be under the age of 16 years and transmitted indecent material to them. Two of them were police conducting covert operations. 7. On 9 July 2015, the police executed a search warrant at Mr Burton's premises and seized a personal computer. This computer was subsequently examined and police located four images which constituted Count 2. 8. Mr Burton tendered a bundle of material which included character references, a psychologist treatment report by Dr Katie Seidler, a letter from forensic psychiatrist Dr Adam Martin and a psychological report from Ms Miriam Wyzenbeek. The applicant, Dr Seidler and Ms Wyzenbeek all gave evidence and were cross-examined by the Crown. Mr Burton relied upon written submissions. 9. His Honour made the following observations and findings. 10. Commencing with Count 2, his Honour found that the number of images was very low, Mr Burton acted alone, was not involved in a network of like-minded persons, there was no suggestion of a risk that the material would be seen by vulnerable persons, there was no evidence of any planning or organisation and the extent of his involvement was simply possession. Ultimately his Honour found that Count 2 fell towards the lower end of the scale for offences of this type. 11. His Honour then dealt with Count 1 and the Schedule offence. Count 1 concerned communications that occurred over a two year period: the time spent transmitting child pornography material exceeded 12 hours over an 18 day period. There was no evidence of persistent or relentless pursuit of the victims but the substance of conversations was highly sexualised. The majority of the conversations were not of the most serious or degrading/graphic kind but the communications all involved a deliberate and premeditated course of conduct. There was no pre-existing relationship of trust with any of the victims but Mr Burton worked on each relationship in order to achieve his goal of discussing female children. Mr Burton's conduct was for his personal sexual gratification. The offending behaviour would have been aggravated if there had been actual child victims or if he had been in a position of trust. Mr Burton was involved in these chats and used explicit language to describe sexual acts. His Honour assessed the objective seriousness of this offence as in the mid-range. 12. His Honour found the Schedule offence to be objectively serious. 13. His Honour then made the following observations and findings concerning the Mr Burton's subjective case. Mr Burton had a hardworking background with no criminal antecedents. His prior good character entitled him to some leniency. Mr Burton had developed little insight into the true nature of his offending and his Honour considered that it was difficult to find contrition. Mr Burton had a complex psychology and his Honour appeared to accept on balance that the offending behaviour was a function of his personality structure. His Honour found that Mr Burton was a relatively young man and had some prospects of rehabilitation. 14. His Honour allowed a 10% reduction for both pleas and considered that partial accumulation and a finding of special circumstances were appropriate. His Honour came to the view that full-time custody was required for both offences. Ground 1 1. Mr Burton accepted that the assessment of the objective seriousness of an offence is quintessentially a matter for the sentencing judge: Mulato v R [2006] NSWCCA 282 at [46]. The question is whether or not the particular characterisation that the sentencing judge gave to the circumstances of the offence was open: Mulato v R at [37]; Franklin v R [2019] NSWCCA 325 at [72]-[73]. Mr Burton submitted that on a proper consideration of his conduct it was not open for his Honour to have assessed the objective seriousness as mid-range. Mr Burton contended that the relevant provision comprehends a wide range of conduct and that a consideration of the principles gathered in recent authorities produces a conclusion that his conduct fell below the mid-range for offences of this nature. 2. Section 474.19(1) of the Code provided as follows: 474.19 Using a carriage service for child pornography 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, advertises or promotes material; or (iv) solicits material; and (aa) the person does so using a carriage service; and (b) the material is child pornography material. 1. The term "child pornography material" was defined in s 473.1: 473.1 Definitions … child pornography material means: (a) 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 (b) 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 (c) 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 (d) 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. 1. Mr Burton argued that the definition appears to draw two distinctions. First, a distinction is drawn between material that "depicts a person" (in subsections (a) and (b)) and material that "describes a person" (in subsections (c) and (d)), reflecting a distinction between images and written material, the former generally requiring actual child victims. Secondly, a distinction between material that relates to "sexual poses" or "activities" (in subsections (a) and (c)) and "sexual organs" or other body parts (in subsections (b) and (d)), reflecting a distinction between types of sexualised content. He contended that the former were more objectively serious given the depiction of sexual activity. 2. Mr Burton submitted that it appears the definition addresses four distinct categories of child pornography material, in descending order of seriousness, a characterisation with which the Crown specifically disagreed. He submitted further that the categories appear to be structured so that images of children are deemed more objectively serious than written words about them but where within the two categories of material, the type of sexualised content is graded. In this way, the then definition of "child pornography" also admitted of a wide range of material and the particular category into which the material falls must bear on an assessment of objective seriousness. 3. Section 474.19(1) has been considered recently by a number of intermediate appellate courts. The following propositions emerge: 1. The vice attacked by an offence under subsection 474.19 of the Criminal Code is the use of the internet to access the market for child pornography and the consequent boost to that market of which internet access is such an important element: R v Gordon (2011) 1 Qd R 429 at [37] cited with approval in R v Porte [2015] NSWCCA 174 at [55]-[56]. 2. The possession of child pornography material creates a market for the continued corruption and exploitation of children: R v Coffey [2003] VSCA 155 at [30]; R v Cook; Ex parte Director of Public Prosecutions (Cth) [2004] QCA 469 at [21]. 3. There is a paramount public interest objective in promoting the protection of children as the possession of child pornography is not a victimless crime; children are sexually abused in order to supply the market: DPP (Cth) v D'Alessandro [2010] VSCA 60 at [23]. 4. The harm done to the children exploited has been described as profound, exacerbated by the continued circulation of images on the internet indefinitely: R v Porte at [69]-[70]. 1. The relevant considerations that inform the objective seriousness of these offences has usefully been considered by this Court in R v Hutchinson [2018] NSWCCA 152 at [45]-[46] as follows: "[45] Accordingly, a revision of the list provided in Minehan v R of potentially relevant matters that may bear upon the assessment of the objective seriousness of offences concerning the possession, dissemination or transmission of child pornography and child abuse material is: 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) 147 CLR 383; [1981] HCA 31. 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, sophistication and/or deception employed by the offender in acquiring, storing, disseminating or transmitting the material. 10. The age of any person with whom the offender was in communication in connection with the acquisition or dissemination of the material relative to the age of the offender. 11. Whether the offender acted alone or in a collaborative network of like-minded persons. 12. Any risk of the material being seen or acquired by vulnerable persons, particularly children. 13. Any risk of the material being seen or acquired by persons susceptible to act in the manner described or depicted. 14. Any other matter in s 21A(2) or (3) of the Crimes (Sentencing Procedure) Act (for State offences) or s 16A of the Crimes Act 1914 (for Commonwealth offences) bearing upon the objective seriousness of the offence. [46] Once again, it must be stressed that individual cases can always identify other matters relevant to an assessment of objective seriousness and so this list remains one that is not exhaustive." 1. In support of his submission, Mr Burton emphasised the following matters. The child pornography material was constituted entirely by written words created by Mr Burton, presumably the product of his imagination. There was no evidence of any pre-existing relationship between him and anyone to whom the material was transmitted. There was no abuse of trust. It is not suggested that Mr Burton sent these written words to anyone under the age of 16 years or that he exposed any such person to the things that he transmitted. There was no evidence that Mr Burton persistently or relentlessly pursued anyone with his transmissions. Taken in context, the total transmission time was limited to approximately 12 hours over a period of more than two years. It is also obvious that the words were transmitted to the recipients in the limited context of role play in which he and the recipients participated. The substance of the written words transmitted by Mr Burton was highly sexualised and potentially offensive but the majority of the conversations were not of the most serious or degrading kind. Mr Burton submitted finally that even though his Honour found that the conduct was for his sexual gratification, was deliberate and premeditated and that Mr Burton "worked on each relationship in order to achieve his goal of discussing female children", generally speaking these were matters common to offences of this nature and did not elevate the seriousness of the offending. 2. Mr Burton submitted that on the unique facts of this case, the form of the child pornography material meant that the vice ordinarily present in an offence under subsection 474.19(1) was attenuated. The absence of any actual child victims meant that the usual inferences that may be properly drawn about supporting a market did not resonate in this case. The true source of the material, the applicant's imagination, additionally meant that the call for general deterrence for Count 1 was mitigated. Further, when one takes into account some of the surrounding circumstances set out above, including the absence of those matters which typically inhere in such offences, many of the considerations raised in R v Hutchinson appear to fall away. For those reasons, Mr Burton maintained that it was not open for his Honour to find the objective seriousness in the mid-range. 3. His Honour described the nature of the offending for Count 1 as follows: "Commonwealth Offence: Count 1 (with the 16BA Schedule offence) Section 16A(2)(a): Nature and circumstances of the offence The agreed facts show that this federal offence arose out of a series of Skype chat applications which occurred between the offender and seven females. These took place on various occasions during a two-year period and the time spent transmitting child pornography material exceeded 12 hours over an 18-day period. Despite this I accept the defence submission that there was no evidence of persistent or relentless pursuit of the victims but the substance of the conversations was highly inappropriate and sexualised. Whilst one of the sexual acts described by the offender involved physical violence with a 13 year old girl, I accept the defence submission that the majority of the chat conversations were not of the most serious or degrading/graphic violent kind. Nevertheless the offender used explicit language to describe sexual acts between himself and children under 16 years of age. This included discussing multiple children on occasions. I accept the Crown's submission that each of the communications involved a deliberate and premeditated course of conduct. However, as stated, given the period of gaps over which the conduct was taken, I do not accept that it was relentless. I accept the defence submission that there was no pre-existing relationship of trust with any of the victims prior to the online chat conversations although it is clear from the agreed facts that the offender worked on each relationship in order to achieve his goal of discussing female children under the age of 16. There was considerable evidence and submission in the sentencing proceedings regarding whether or not the conduct of the offender was for the purpose of his own sexual gratification. In all the circumstances I accept that it was for his own personal sexual gratification. In this regard I prefer the evidence of Ms Wyzenbeek, psychologist, to that of Katie Seidler, psychologist, and to the evidence of the offender himself. Indeed in regard to this aspect the offender was a most unconvincing witness. I have given some real thought to the nature of the child pornography material. In my view the seriousness of the matter would have been aggravated if there had been actual child victims for count 1, or indeed, if there has been the use of photographs or videos rather than written form. The offender has not attempted to set up meetings with those to whom he has been chatting. He was not in a position of trust. However, the true gravamen of the offence is that he was involved in these chats and used explicit language to describe sexual acts between himself and children under 16 years of age. It does appear that the offender was not interested in very young prepubescent children. The age range of those with whom he was interested was between 11 and 16 years of age and his roleplaying/fantasy scenarios were generally centred around 13 to 14 years of age. (Emphasis added.) 1. Although falling under a heading in his remarks on sentence suggesting that his Honour was dealing only with the s 16BA offence, his Honour ultimately proceeded to deal with the objective seriousness of that matter as well as each of the principal counts. That part of his Honour's remarks is relevantly as follows: "Taking into account the above factors in relation to the Commonwealth offence, I find that Count 1, the most serious offence, falls at mid-range for offences of this type." 1. Mr Burton's principal contention with respect to Ground 1, which the Crown's submissions recognise, is that the "vice" ordinarily present in an offence under s 474.19(1) was reduced because no actual children were used in the creation of the material: there were no victims. For example, there is no suggestion, which his Honour expressly accepted, that Mr Burton attempted to set up meetings with those to whom he had been chatting. The Crown has emphasised that the absence of child victims does not render the present case unique. However, with respect to his Honour, he does not appear to have dealt with this issue directly: it is not to the point that his Honour explicitly recognised that the offences would have been "aggravated" if there had been child victims. In describing what his Honour called "the true gravamen of the offence" as being Mr Burton's involvement in the subject chats, and that he used explicit language to describe sexual acts between himself and children, his Honour has on one view failed to accommodate or explain what might be thought to be the tension between his finding of mid-range objective seriousness and the absence of a victim. 2. Nor does this case fall into the category in which the existence of, or harm to, a child victim can be assumed of inferred. That includes the absence of exploitation or victimisation of any actual child: Whiley v R [2010] NSWCCA 53 at [63]: "[63] What is particularly important in the present case is the sentencing judge's findings, which I quoted earlier in this judgment, that the images (which were drawings and not photographs) and the handwritten text were created by the applicant from his own imagination and that there was no evidence on which the sentencing judge could find that the images were created from any photographic images of actual children or that the stories in the text were inspired by actual experiences of the applicant or other persons. The present applicant's offences did not involve the exploitation or victimisation of any actual child." 1. Mr Burton's conduct was limited to committing sexual fantasies with non-existent children to writing and sharing what he had written with another person using a carriage service. 2. It is well settled that assessment of the objective seriousness of an offence is quintessentially a matter for the trial judge: Lees v R [2019] NSWCCA 65 at [55]. As was emphasised in Salafia v R [2015] NSWCCA 141 at [90]: "[90] A ground of appeal asserting error in the assessment of objective seriousness should be advanced only where specific error of the sort referred to in House v The King can be identified rather than, as seems to be commonly the case, a complaint routinely made. Assessment of gravity by a first instance judge is a process involving the application of principle to facts established by the evidence. It is a discretionary process that relies upon a judicial officer considering all relevant features, and making what in many regards is a value judgment. The conclusion reached is a discretionary one in a process where there is no definitively "correct" answer. Opinions can reasonably differ, but the availability of other differing assessments is not a basis upon which to discern error. There will be appealable error only where there has been a failure in the proper application of principle in making the assessment." 1. A fair reading of his Honour's remarks suggests that he was well aware that there were no child victims of the offence making up Count 1 but nevertheless concluded that it was a mid-range offence. In doing so his Honour appears clearly to have considered that other matters informing that question were sufficient to support his conclusion. In essence his Honour was patently concerned with the highly inappropriate and sexualised content of the written material produced by Mr Burton. It must be remembered that the offence is committed by the transmission of the material that qualifies as child pornography. The seriousness of the offence of transmission is necessarily informed by the nature and content of the material itself. That is something to which his Honour clearly directed his attention. Mr Burton used explicit language to describe sexual acts between himself and children, including on one occasion describing himself being involved in physical violence with a 13-year old girl. His Honour must be taken, in accordance with authority, to have understood the importance attaching to the possibility of dissemination of this written material to vulnerable recipients or those susceptible to act in the ways Mr Burton has described. 2. I am not satisfied that his Honour's assessment of the objective seriousness of Count 1 has been shown to be erroneous. Ground 2 1. Mr Burton made the following submissions in support of this ground of appeal contending that the sentences imposed were manifestly excessive. 2. In terms of the objective seriousness of the Schedule offence, with the exception of Angie Jones, each of the recipients of the communication was said to be in her mid-teens. The indecent material was comprised of Mr Burton's written words which were sexual in nature but not of a degrading or violent type. The time spent transmitting the material was approximately 12 hours over a period in excess of two years. 3. With respect to the objective seriousness of Count 2, the child abuse material was limited to four images with two files classified as CETS 1 and two files classified as CETS 4. Mr Burton acted alone and was not involved in a network of like-minded persons. There was no risk of the material being sighted or acquired by vulnerable persons and the basis of Mr Burton's culpability was possession simpliciter. 4. Mr Burton had no criminal antecedents and at the time of the offending behaviour was in his mid-twenties. He had demonstrated a capacity to be a contributing member of society in his time at the ADF and was of prior good character. The offending behaviour was more a function of his personality structure than sexual deviancy and he had some prospects of rehabilitation. 5. Even taking these matters into account, I do not accept that his Honour's sentences were manifestly excessive. Indeed, on one available view, his Honour's characterisation of Count 1 as an offence falling within the mid-range of objective seriousness is in tension with the sentence actually imposed for that count but in a way that actually favoured Mr Burton. His Honour obviously took account of Mr Burton's strong subjective case and of the opinions from medical specialists dealing with his psychiatric condition and his commendable attempts to overcome it. His Honour's assessment of Count 2 as falling towards the lower end of the range of objective seriousness for offences of its type has unsurprisingly not been the subject of separate criticism. 6. His Honour carefully structured the sentences so that Mr Burton was required to serve a non-parole period of only 12 months. It is difficult in my estimation to conclude that the sentence was unreasonable or plainly unjust. I accept the Crown submission that Mr Burton appeared in his fairly extensive oral evidence before his Honour to have displayed very little insight with respect to his offending, to have minimised the significance of his conduct and to have demonstrated little remorse. These were matters to which his Honour was entitled to have regard. Mr Burton also received a fairly generous finding of special circumstances. The sentences imposed by his Honour were not in my view erroneously severe. Orders 1. In my view the following orders should be made: 1. Grant leave to appeal against sentence. 2. Dismiss the appeal. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 June 2020