Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Glasheen v R [2022] NSWCCA 191 Hearing dates: 22 August 2022 Date of orders: 22 August 2022 Decision date: 05 September 2022 Before: Beech-Jones CJ at CL at [1]; Price J at [2]; Garling J at [33] Decision: (1) Leave to appeal granted. (2) Appeal allowed. (3) Quash the sentence imposed in the District Court on 10 August 2021. (4) In lieu thereof, impose a sentence by way of a total term of imprisonment of 3 years and 1 month, commencing 25 July 2020 and expiring 24 August 2023. (5) Fix a non-parole period of 2 years and 4 months. The earliest date for release is 24 November 2022. Catchwords: CRIME – Appeals – Appeal against sentence – Federal child abuse offence – statutory mandatory minimum sentence prescribed – reduction of mandatory minimum pursuant to s 16AAC of the Crimes Act 1914 (Cth) – concession by the Crown of error by the sentencing judge by not reducing the sentence below the specified minimum – re-sentence – consideration of non-parole period Legislation Cited: Child Protection (Offenders Registration) Act 2000 (NSW) s 16C Crimes Act 1900 (NSW) ss 61M(2), 91G(1)(a), 91H(2), 91L(3) Crimes Act 1914 (Cth) ss 3, 16A, 16A(2AAA)(b), 16AAA, 16AAB, 16AAC(2), 16AAC(3) Criminal Code Act 1995 (Cth) s 474.22(1) Cases Cited: Bahar v The Queen (2011) 214 A Crim R 417; [2011] WASCA 249 R v Delzotto [2022] NSWCCA 117 Texts Cited: Category: Principal judgment Parties: Richard William John Glasheen (Applicant) Regina (Respondent) Representation: Counsel: G Lewer (Applicant) K Breckweg (Respondent) Solicitors: Hugo Law Group (Applicant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2020/217800 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: Nil Date of Decision: 10 August 2021 Before: Robinson DCJ File Number(s): 2020/217800 JUDGMENT 1. BEECH-JONES CJ at CL: I agree with Price J. 2. PRICE J: On the hearing of the appeal on 22 August 2022, the Court made the following orders: 1. Leave to appeal granted. 2. Appeal allowed. 3. Quash the sentence imposed in the District Court on 10 August 2021. 4. In lieu thereof, impose a sentence by way of a total term of imprisonment of 3 years and 1 month, commencing 25 July 2020 and expiring 24 August 2023. 5. Fix a non-parole period of 2 years and 4 months. The earliest date for release is 24 November 2022. 1. Here are my reasons for joining in the Court's orders. 2. The sole ground of appeal was that; "The sentencing judge erred in failing to give full effect to the discounts articulated for the applicant's plea of guilty and assistance to authorities." 1. The focus of the appeal was on the mandatory minimum sentencing regime for the federal offence of use carriage service to access child abuse material contrary to s 474.22(1) of the Criminal Code Act 1995 (Cth) ('the Criminal Code') and s 16AAC(2)-(3) of the Crimes Act 1914 (Cth), which provide for the imposition of sentences less than the mandatory minimum where the Court takes into account an offender's plea of guilty and past co-operation with law enforcement agencies in the investigation of the offence. The applicant was sentenced by Robinson DCJ ('the Judge') on 10 August 2021, before this Court considered the proper application of the sentencing provisions in ss 16AAA, 16AAB, and 16AAC of the Crimes Act (Cth) in R v Delzotto ('Delzotto'). [1] 2. In comprehensive and careful sentencing remarks, the Judge made findings as to the objective seriousness of the offence, the applicant's subjective case, and allowed a 25% discount for his plea of guilty and a 5% discount for his co-operation with the investigating police. The applicant was being sentenced for one count contrary to 474.22(1) of the Criminal Code. The maximum penalty for this offence is 15 years' imprisonment. 3. Section 16AAB of the Crimes Act (Cth) applied so as to impose a mandatory minimum head sentence of 4 years' imprisonment, as the offence to which the applicant pleaded guilty was a Commonwealth child sexual abuse offence and he had previously been convicted of a child sexual abuse offence. [2] In 2014, the applicant had been convicted of the following five offences which are each a "child sexual abuse offence" [3] pursuant to s 3 of the Crimes Act (Cth), being a "State or Territory registrable child sexual offence": 1. Two offences of aggravated indecent assault contrary to s 61M(2) of the Crimes Act 1900 (NSW); 2. Film person's private parts without consent to obtain sexual gratification contrary to s 91L(3) of the Crimes Act (NSW); 3. Produce, disseminate or possess child abuse material contrary to s 91H(2) of the Crimes Act (NSW); and 4. Use child under 14 years of age to produce child abuse material contrary to s 91G(1)(a) of the Crimes Act (NSW). 1. Section 16AAC of the Crimes Act (Cth) relevantly provides: 16AAC Exclusions and reductions—minimum penalties (2) A court may impose a sentence of imprisonment of less than the period specified in column 2 of an item of a table in section 16AAA or subsection 16AAB(2) only if the court considers it appropriate to reduce the sentence because of either or both of the following: (a) the court is taking into account, under paragraph 16A(2)(g), the person pleading guilty; (b) the court is taking into account, under paragraph 16A(2)(h), the person having cooperated with law enforcement agencies in the investigation of the offence or of a Commonwealth child sex offence. (3) If a court may reduce a sentence, the court may reduce the sentence as follows: (a) if the court is taking into account, under paragraph 16A(2)(g), the person pleading guilty—by an amount that is up to 25% of the period specified in column 2 of the applicable item in the relevant table; (b) if the court is taking into account, under paragraph 16A(2)(h), the person having cooperated with law enforcement agencies in the investigation of the offence or of a Commonwealth child sex offence—by an amount that is up to 25% of the period specified in column 2 of the applicable item in the relevant table; (c) if the court is taking into account both of the matters in paragraphs (a) and (b)—by an amount that is up to 50% of the period specified in column 2 of the applicable item in the relevant table. 1. In the applicant's case, the discounts to be imposed could not exceed: 1. For the plea of guilty, 1 year. 2. For assistance, 1 year. 3. For any combined discount for plea and assistance, 2 years. 1. At the sentencing hearing before the Judge, the Crown submitted that the reasoning in Bahar v The Queen [4] should be followed. In essence, the Crown contended that the minimum sentence could only be imposed for offending that fell within the "least serious category". The Crown argued that the Court would conclude that the offence did not fall into the "least serious category of offending" and the resultant sentence would be above the mandatory minimum 4 year head sentence, and accordingly there was no requirement to use s 16AAC as the sentence must sit above that mandatory minimum. 2. The Judge assessed the objective seriousness of the offence as being "below mid-range but not into the least serious category of offending". [5] Her Honour determined that the appropriate undiscounted head sentence was 4 years and 6 months. Her Honour went on to say: "[The applicant] is entitled to a combined discount of 30% for his early plea of guilty and co-operation with police involved in the investigation of his offence. However, in applying that discount that would see the head sentence fall below the mandatory minimum. I could only allow that result if the penalty I impose is the minimum penalty, namely four years to which the s16AAC reductions could then apply. I am unable to give full effect to the discount to which the offender is entitled. I accept the mandatory nature of the provision. I am obliged to impose a sentence of four years' imprisonment which I so do." [6] (Emphasis added.) 1. The Judge set a non-parole period of approximately 66% of the total sentence. The applicant was sentenced to a term of imprisonment of 4 years commencing on 25 July 2020 and expiring on 24 July 2024 with a non-parole period of 2 years and 8 months expiring on 24 March 2023. 2. The applicant's complaint was that her Honour was not barred from applying the full discount of 30% to the undiscounted starting point of 4 years and 6 months, as s 16AAC(2)-(3) applied. The applicant contended that his head sentence should have been 3 years 1 month and 24 days with a non-parole period of 2 years and 1 month. 3. In this Court, the Crown conceded that her Honour had erred in failing to give full effect to the combined discount of 30%. The Crown accepted that it was not necessary for the sentence to be the mandatory minimum sentence, or even in the lowest category of objective seriousness, before the deductions in s 16AAC could be utilised. 4. Unlike in this Court, neither the Judge nor the parties in the sentencing proceedings had the benefit of Delzotto, which was delivered on 6 June 2022. Relevantly to the applicant's ground of appeal, Beech-Jones CJ at CL said in Delzotto at [3]-[4]: "Second, even though ground 2 of the Commonwealth Director of Public Prosecution's appeal was not pressed, it is necessary to say something further about it in case there is an attempt to reagitate it elsewhere in a manner which is unconnected to the reasoning that has led to this Court's acceptance of ground 1 of the appeal. At least one permutation of ground 2 contended that the power conferred by s 16AAC(2) of the Crimes Act 1914 (Cth) to reduce a sentence below the minimum periods specified in column 2 of the Table in s 16AAB, on account of an offender's plea of guilty or cooperation with law enforcement agencies, could only be exercised in a case that involved the "lowest category of offending" which I understand to mean an offence the objective seriousness of which was at the bottom of the range. The written submissions referred to [213] of the Explanatory Memorandum to the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019 (Cth) which upon its enactment included ss 16AAB and 16AAC and which stated: "The reductions in subsections 16AAC(2) and 16AAC(3) apply only if the penalty imposed by the sentencing court is the minimum penalty specified in column 2 of the table in section 16AAA and subsection 16AAB(2)." The contention that it is only the lowest category of offending that could ever result in the imposition of the minimum sentence is inconsistent with Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 and otherwise denies the fundamental precept that the determination of the appropriate sentence requires a consideration of all the relevant factors as part of the "instinctive synthesis" (Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25). Otherwise, as emerged in argument, if this approach to s 16AAC was accepted, then in the case of an offence against s 474.22A(1) of the Criminal Code (Cth) where, say, before any consideration of the discount to be afforded to an offender's plea of guilty, the appropriate sentence has been determined to be 4 years and 6 months, there could be no reduction below the 4-year minimum on account of the offender's plea. However, if the assessment was that, before any consideration of the offender's plea of guilty, the appropriate sentence was 4 years, then the sentence could be reduced to as low as 3 years on account of the plea of guilty (and 2 years if the offender cooperated with law enforcement agencies). This disparity in outcome would be the antithesis of the concept of "equal justice" as explained by Allsop P in Karim v The Queen (2013) 83 NSWLR 268; [2013] NSWCCA 23 at [45] (Karim) and which was part of the reasoning that led the Court in that case to follow Bahar v R (2011) 45 WAR 100; [2011] WASCA 249 (Bahar) and in turn has led this Court to follow Bahar and Karim in this case. There is nothing in the text of s 16AAC which supported this contention. None of the circumstances envisaged by s 15AB(2) of the Acts Interpretation Act 1901 (Cth) in which second materials such as an Explanatory Memorandum can be considered in the construction of legislation, are engaged." [7] 1. Her Honour was not obliged to impose a sentence of 4 years' imprisonment. The ground of appeal was established and it was necessary to re-sentence the applicant. Re-sentence 1. Before considering re-sentence, it is convenient to summarise the facts of the offence and the findings made by the Judge. None of her Honour's findings are challenged other than the use of s 16AAC. Agreed Facts 1. Agreed facts were tendered on sentence which her Honour summarised in her sentencing remarks. The offending occurred between 12 and 19 July 2020 in the applicant's home. He was a registrable person for the purposes of the Child Protection (Offenders Registration) Act 2000 (NSW) ('CP Act'). 2. At about 10:30am on 25 July 2020, police attended the applicant's home to conduct a home visit in accordance with s 16C of the CP Act. The applicant unlocked both his mobile phone and laptop to enable police to conduct their duties. Within the applicant's web browser history, the police observed pornographic material involving children. The applicant told police "all of those girls are of age". 3. The applicant was arrested and a crime scene warrant was executed. Examination of the applicant's laptop by police located 64 images which constitute child abuse material within the Interpol Baseline Categorisation System. Of the images, 30 were categorised as "Category 1" and 34 as "Category 2". The images included prepubescent children performing fellatio or being sexually penetrated. The applicant had again told police "they are all over 18". Some further findings by the Judge 1. After detailing the relevant sentencing principles for child abuse material offences, the findings made by the Judge included the following: 1. The charge was a "rolled-up" count involving more than one instance of offending, capable of being separately charged. Accordingly, the criminality was greater than one instance of offending. 2. The offending occurred over a discrete period of time between 12 and 19 July 2020, but was not isolated offending. Actual children were used in the creation of the material including a number that were prepubescent. 3. The material included prepubescent female children engaged in sexual acts with adults including oral and penetrative sex. 4. The material was accessed for the applicant's own sexual gratification and resulted from direct searching by him. It was readily accessed via the internet and therefore accessible to anyone. 1. After noting the contents of a report of Julie Dombrowski, a psychologist, that was tendered on behalf of the applicant, her Honour was not satisfied the applicant had demonstrated genuine contrition or remorse, given that the focus of the remarks reported by the psychologist were on the applicant's "disappointment and disgust in himself and his concern for the consequences of offending upon him and his family". [8] 2. The Judge found the applicant's prospects of rehabilitation were "guarded" and noted his above average risk of recidivism, "together with his assessed need for long term targeted treatment and his apparent ongoing paedophilic inclination" [9] led her Honour to form that view. 3. Her Honour was mindful of s 16A(2AAA) of the Crimes Act (Cth) and the need to take into account the applicant's rehabilitation. Her Honour confirmed that she had done so in both setting the head sentence and "specifically" the non-parole period. 4. The Judge considered that "[g]iven the [applicant's] prior similar history for which he served a period in custody, his blatant attempts to search for illegal material in this instance of offending, his limited insight and remorse and his above average risk of reoffending, the sentence in this matter should reflect the need for his specific deterrence". [10] Fresh material 1. The applicant tendered on re-sentence his affidavit affirmed on 4 August 2022. The applicant detailed his experiences in custody since 25 July 2021. He is currently working in the kitchen, has completed a behavioural change program ('EQUIPS') and undertaken the Real Understanding of Self-Help program ('RUSH'). He has also signed up for the Medium Intensity Sex Offender Program. 2. The applicant described the difficult COVID-19 conditions in custody and related his recent diagnosis of diabetes, his difficulties with mental health, and the impact of his incarceration on his family members. 3. He stated that he was ashamed for what he had done and realised the abhorrent nature of his actions, not only to the victims but to everyone involved. Discussion on re-sentence 1. As the Judge's findings on the objective seriousness of the offence and the applicant's subjective case were not challenged, the discussion concerning re-sentence was confined to the non-parole period. The Crown accepted that the undiscounted head sentence of 4 years and 6 months should be reduced by 30%. The sole issue was the length of the non-parole period. The applicant's counsel accepted that if the Judge had not fallen into error, her Honour might not have considered that a ratio of approximately 66% between the head sentence and the non-parole period was appropriate. The applicant's counsel accepted that this Court on re-sentence was not bound by that ratio. Consideration on re-sentence 1. In re-sentencing the applicant, the Judge's unchallenged findings on the objective seriousness of the offence and the applicant's subjective case are adopted. Section 16A of the Crimes Act (Cth) obliges the court to impose a sentence of a severity appropriate in all the circumstances of the offence. 2. As the applicant is being re-sentenced for a Commonwealth child sex offence, the Court must have regard to rehabilitating the applicant which includes, pursuant to s 16A(2AAA)(b), "in determining the length of any sentence or non-parole period—to include sufficient time for the person to undertake a rehabilitation program". [11] 3. After the 30% discount is applied to the 4 years and 6 months head sentence nominated by the Judge, the head sentence is rounded down to 3 years and 1 month. The ratio between the head sentence and non-parole period fixed by the Judge was approximately 66%. The application of that ratio to the head sentence of 3 years and 1 month would result in a non-parole period of 2 years and 13 days, which would not appropriately reflect the gravity of the offence. A non-parole period of 2 years and 4 months appropriately reflects the gravity of the offence and the rehabilitation of the applicant. 4. GARLING J: I joined in the making of the orders of the court for those reasons which Price J has set out in his judgment. ********** Endnotes 1. R v Delzotto [2022] NSWCCA 117 ('Delzotto'). 2. Crimes Act 1914 (Cth) s 16 AAB(2) Item 24. 3. Crimes Act 1914 (Cth) s 3 "child sexual abuse offence". 4. Bahar v The Queen (2011) 214 A Crim R 417; [2011] WASCA 249. 5. Tcpt, 10 August 2021, p 11(24). 6. Ibid, p 28(23). 7. Delzotto at [3]-[4]. 8. Tcpt, 10 August 2021, p 17(10). 9. Ibid, p 19(14). 10. Ibid, p 20(10). 11. Crimes Act 1914 (Cth). 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: 05 September 2022