Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: AB v R [2014] NSWCCA 31 Hearing dates: 4 March 2014 Decision date: 04 March 2014 Before: Beazley P at [1] R A Hulme J at [2] Schmidt J at [71] Decision: Leave to appeal against sentence refused Catchwords: CRIMINAL LAW - appeal against sentence - guilty pleas not necessarily indicative of remorse - "guarded" prospects of rehabilitation - appellate intervention narrowly confined in regards to weight given to remorse and rehabilitation at trial - finding of "special circumstances" for single sentence not applied to overall sentence - aggregate non-parole period reflects criminality of offences - advanced age did not warrant lesser sentence - error in commencement dates for individual sentences immaterial - error in statement of maximum penalty for offence immaterial - leave to appeal refused Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Cases Cited: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 Caristo v R [2011] NSWCCA 7 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 House v The King [1936] HCA 40; 55 CLR 499 Houri v R [2013] NSWCCA 279 Power v The Queen [1974] HCA 26; 131 CLR 623 R v Baker [2000] NSWCCA 85 R v Holyoak (1995) 82 A Crim R 502 R v MJR [2002] NSWCCA 129; 54 NSWLR 368 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Sutton [2004] NSWCCA 225 Category: Principal judgment Parties: AB (Applicant) Regina (Respondent) Representation: Counsel: Mr R Webb (Applicant) Mr R Herps (Crown) Solicitors: Legal Aid NSW Solicitor for Public Prosecutions File Number(s): 2011/153039 Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-10-10 00:00:00 Before: Arnott SC DCJ File Number(s): 2011/153039 Judgment 1BEAZLEY P: I agree with the reasons of R A Hulme J. 2R A HULME J: This was an application for leave to appeal in respect of a sentence imposed by his Honour Judge Arnott SC in the District Court at Sydney on 10 October 2012. At the conclusion of the hearing of the application on 4 March 2014, the Court made an order refusing leave. The following are my reasons for joining in the making of that order. 3The applicant, who is referred to by pseudonym because identifying him would lead to identification of his victims (s 578A Crimes Act 1900 (NSW)), pleaded guilty to a variety of sexual assault and child pornography offences. The table below sets out the details of the offences and the individual sentences that the judge said that he would have imposed if he had not fixed a single aggregate sentence. 4There were 15 offences. They involved Sexual intercourse with a person under 10; Aggravated indecent assault; Aggravated incitement of a person under 16 to commit an act of indecency; Committing an act of indecency with a person under 16; Incest; and Possession of child pornography. 5AB asked that when he was sentenced for two of those offences his guilt in respect of a further 12 offences listed on Form 1 documents be taken into account pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW). They involved further offences of Incest, Possession of child pornography and an offence of Committing an act of indecency with a person aged 16 or over. 6The victims of the sexual assault offences were the applicant's daughters, friends of his daughters, and his wife. The incest offences concerned one of his daughters when she was an adult. The applicant was found to be in possession of a vast quantity of child pornographic material when he was arrested, involving his children, their friends and many other victims. 7The aggregate sentence was one of 17 years with a non-parole period of 14 years. It was backdated to the applicant's arrest on 18 June 2010. Offences and sentences Offence Maximum penalty Charge reference and committal or Form 1 Indicative penalty Incite person under 16 (namely 7) to commit act of indecency in circumstances of aggravation (under authority): s 61O(1) 5 years Seq 12 18 months fixed term Committal Between 1 January 1992 and 1 December 1992 the applicant incited EC who was then aged 7 to commit acts of indecency with his daughters CB and GB. He encouraged EC and CB to run naked through the house on a rural property near Burke whilst he filmed the incident. He also gave EC and his two daughters a video camera and a typed list of "tasks" to complete on film. Such tasks included dancing naked, doing a strip tease, touching themselves and one another on the breast and vaginas, filming their breasts, vaginas and bottoms close-up, and various other sexual acts including two of the girls inserting a pen into their vagina. The applicant filmed these activities and later inserted captions of a depraved nature. He was found to be in possession of the footage when arrested in 2010. (Given the victim was aged under 10 at the time, the offence could have been charged under s 61O(2) where the maximum penalty is 7 years). Sexual intercourse with person under 10 (namely 6): s 66A(1) 20 years Seq 10 7 years with non-parole period 4 years Committal Between 1 March and 30 April 1993 at the family home at Tamarama, and when his wife was in hospital, the applicant got into the bed of his 6 year-old daughter, GB, rubbed his penis around her vagina and pushed it in a little way in. She cried and he stopped after a few minutes. Another daughter, CB, was in another bed in the room. He was drunk at the time. When GB was about 13 years old she told her mother. Indecent assault in circumstances of aggravation (victim under the age of 16 (namely 14)): s 61M(1) 7 years Seq 30 12 months fixed term Committal Between Christmas 1998 and 31 January 1999 at EC's family home at Coogee, the applicant entered her bedroom, where CB and GB also slept. He tickled EC's leg, and then stroked her breast on the outside of her singlet top. When she rolled over pretending to be asleep he tickled her bottom. Incite person under 16 (namely 15) to commit act of indecency in circumstances of aggravation (under authority): s61O(1) 5 years Seq 14 12 months fixed term Committal Between 1 January and 31 December 1999 at the family property at Alpine in the Southern Highlands, the applicant incited EC, then aged 15, to commit an act of indecency with his daughters CB and GB. This was achieved with the promise of a horse. Whilst being filmed by the daughters, EC did a strip tease, danced naked, wiggled her breasts and bottom, "humped" the floor, stroked her vagina with her finger, and parted the lips of her vagina. When the police discovered the film, it had text at the end of it referring to "this hot movie is brought to you by E", and other comments. Indecent assault in circumstances of aggravation (victim under age of 16, namely 10): s 61M(1) 7 years Seq 31 9 months fixed term SNPP 5 years Committal HM was a friend of the applicant's youngest daughter, LB, and used to sleep over at their Alpine home on many occasions. On an occasion in September/October 2003, whilst filming the two girls dancing, the applicant pulled up HM's top to reveal her breasts. HM was 10 years old. Commit act of indecency upon person under 16 (namely 10 years) (x 2): s 61N(1) 2 years Seq 32 & 33 6 months fixed term Committal In September/October 2003, the applicant covertly video-taped HM and LB (both aged 10) showering naked and dressing. Incest with person 16 or over: s 78A(1) 8 years Seq 20 4 years fixed term Committal Incest with person 16 or over (x 4): s 78A(1) Seq 19, 21, 25 & 26 Form 1 (taken into account re Seq 20) Incest with person 16 or over (x 3): s 78A(1) 8 years Seq 22, 23 & 24 2 years 6 months fixed term Committal Since June 2009, the applicant and his 26 year old daughter, CB, lived together at an address in Campbelltown. Between 18 March and 3 May 2010, he engaged in various sexual activities with her. Most were identified as having occurred in the home. All were video-taped and involved sexual "role-plays" where CB is, for example, dressed in a skimpy dress and black stockings, or on a leash. Sequence 20 involved CB being dressed in a skimpy outfit and black stockings. She had penile/vaginal intercourse with the applicant who lay naked on a bed. They also engaged in acts of cunnilingus and fellatio. Sequences 22, 23 and 24 involved CB role-playing a school friend or being on a leash before performing fellatio. Possess child pornography (x 4): s 91H(2) 10 years Seq 2, 4, 28 and 29 6 months fixed terms for seq 2 and 4. Committal 4 years 6 months fixed terms for seq 28 and 29. Possess child pornography (x 7): s 91H(2) Seq 1, 3, 6, 7, 8, 9 & 27 Commit act of indecency with person 16 or over: s 61N(2) Seq 18 Form 1 (taken into account re Seq 28) The child pornography offences came to light on 17 June 2010 when the applicant and CB had an argument. She rang her mother who, worried about the hysteria she heard and for her daughter's safety, rang the police. When the police arrived, CB told them that the applicant had child pornography in a storage unit at Campbelltown. Police were there to find hundreds of DVDs and CDs and 8 home videos. They also seized computer equipment from his home and, apart from discovering the movies of the applicant engaging in incest with CB, they also discovered child pornography. More will be said about the nature of this pornography later. The Form 1 offence of committing an act of indecency occurred in 2003 and involved the applicant filming his wife naked and showering without her knowledge or consent. Some sentencing errors 8This was a particularly complicated sentencing exercise given the number and gravity of the charges and the historical nature of some of them. It required close attention to the correct maximum penalties that applied at the time the offences were committed. It was almost inevitable that technical errors would creep in. 9The judge assessed an indicative sentence for an offence (sequence 31) by way of fixed term when that offence carried a standard non-parole period. For such an offence, s 54B(4) of the Crimes (Sentencing Procedure) Act requires a judge imposing an aggregate sentence to indicate not only the sentence that would have been imposed but also the non-parole period. 10Another matter was that the judge specified commencement dates for each of the indicative sentences. This was unnecessary and it is contrary to the benefits conferred by the relatively recent amendments to the sentencing legislation that now permits aggregate sentencing. As it turns out, there was a gap between the expiry of some sentences and the commencement of the next sentence but that is immaterial. The dates the judge specified can be ignored because they are otiose. Matters personal to the offender 11The judge noted that the applicant was born in 1955 and was about 37 years of age when the first offence occurred. He was 57 at the time of sentencing. 12His criminal history involved driving offences which were of no relevance. But in 2001 he was convicted for two offences of possessing child pornography and received a three-year good behaviour bond. It was an aggravating feature of the offences identified as sequence 31 (Aggravated indecent assault) and sequences 32 and 33 (Committing an act of indecency) that he was subject to that bond at the time they occurred. 13The applicant was married in 1980, divorced in 2008 and had three daughters. 14There was evidence to the effect that the applicant claimed that his offending was partly due to his escaping from a "loveless marriage which ultimately led to him losing touch with reality". 15A forensic psychiatrist, Dr Olav Nielssen, considered that the applicant's intelligence was in the higher part of the normal range. He had left school at the end of Year 10. He gained employment in information technology with Qantas and various other employers until the time of his arrest. 16There was evidence that the applicant had been using methamphetamine ("ice") for about six months prior to his arrest. 17A 25 per cent reduction of sentence was allowed to the applicant on account of the utilitarian value of his pleas of guilty. The pleas were entered in the Local Court on 23 April 2012, almost two years after his arrest on 18 June 2010. There had been an indication at an earlier time that he would plead guilty but the entry of pleas was delayed because he had become mentally unwell and a question of his competence arose. 18The judge noted that the applicant had a psychotic illness but that Dr Nielssen had said it was atypical in that it was relatively late in onset and quite responsive to treatment. The doctor considered that it may have been triggered by the abuse of methamphetamine prior to arrest. The applicant was thought to be moderately depressed when seen by Dr Nielssen in March 2012. 19The judge was not satisfied on the balance of probabilities that there was a causal connection between the offending and this late onset mental illness. He did not consider that the applicant's moral culpability was reduced, or that less weight should be given to general deterrence. He did, however, accept that it was appropriate to reduce the sentence to be imposed by "a moderate degree" on account of hardship the applicant might experience in custody on account of his mental state. (His Honour was obviously mindful of the ways a mental condition may be potentially relevant to sentence: see the principles summarised in the judgment of McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at 43 (McClellan CJ at CL)). 20The applicant had a disorder of abnormal sexual interest in underage females and women involved in sexual acts with animals according to Dr Nielssen. He also considered that the applicant had an alcohol abuse disorder. 21The applicant told Dr Nielssen that he had an interest in pornographic magazines and X-rated videos but "drifted into child pornography on the internet from about 1999". He became a compulsive collector. 22The learned judge rejected a suggestion in the applicant's claim to the arresting police and to Dr Nielssen that one of the victims of his offences, EC, was partially to blame for the offences involving her. As for the incest offences concerning his daughter, CB, when she was an adult, the applicant also had an explanation involving some blameworthiness on her part. The judge could not determine whether his claims were true or not but considered there was no mitigation of the seriousness of his offending in any event. 23His Honour found that the applicant has "shown very little remorse". He had acknowledged that his actions were wrong but had not faced up to the damage his actions had caused his victims. Further, he had told lies about the extent of his sexual misconduct. 24It was acknowledged that the assessment of rehabilitation prospects is not solely dependent upon a finding that an offender is remorseful. The judge referred to the applicant's preparedness to participate in counselling programs but said that, nonetheless, his prospects in this respect "must be guarded". He accepted that there was no risk of the applicant again sexually interfering with his own children. But he added: "Dr Nielssen has diagnosed a disorder of abnormal sexual interest in underage females and there remains a reasonable risk that he might attempt to photograph young children in inappropriate poses, or sexually interfere with them, or access child pornography in the future." 25The risk of future offending was the subject of one of the grounds of appeal so I will say more about his Honour's assessment of this aspect in that context. 26Finally in terms of personal circumstances, the judge was clearly mindful of the applicant's age, noting as he did that the non-parole period he intended to impose would not see him released until "he is well advanced in years". (The applicant will be aged 68 when his non-parole period expires). Assessment of seriousness of the offences 27There was no complaint about the judge's assessment of the seriousness of the applicant's offences but some brief reference to it is appropriate. 28The s 66A offence involving sexual intercourse with his 6 year old daughter, GB, in 1993 was regarded as the most serious of all the offences (and produced the longest of the indicative sentences). It was not an isolated aberration; it involved penile/vaginal intercourse, albeit to a limited extent and for a relatively short duration (a few minutes); it was unwelcome (the child cried); and there was little force and no threats or pressure. However the applicant had relied upon his natural authority of being an adult and her affection for him as her father. His Honour assessed the seriousness of this offence as being in "the mid-range". 29The judge was mindful of the need to have regard to sentencing patterns and principles at the time the offence was committed: see, for example, R v MJR [2002] NSWCCA 129; 54 NSWLR 368. No complaint was raised by the applicant as to his Honour's approach in this respect. 30His Honour then proceeded to explain his assessment of the seriousness of the other offences. Included in this assessment was a stated awareness of the need to avoid double counting of certain factors and that some of the offences were of a lower level of seriousness. 31As to the assessment of sentences generally, it was again noted that some were committed in breach of a good behaviour bond and there was a need in respect of two matters to reflect a greater emphasis upon deterrence and retribution where additional offences were being taken into account. Although he did not explicitly say so, it is apparent that his Honour was mindful of the guidance provided by Spigelman CJ in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; 56 NSWLR 146 at [42] (Spigelman CJ). 32The judge found that the incest offences were "of serious proportions and higher than mid-range in the range of offences that fit within the section". In this respect he specifically took into account the position of trust occupied by the applicant and that the offences "occurred as a culmination of a prolonged period during which the victim would have been wholly disempowered and her true consent suborned". 33His Honour's analysis of the seriousness of the child pornography offences exhibits a similarly careful and analytical approach. He demonstrated an awareness of relevant sentencing principles for such offences without resorting to any lengthy exposition of technical jurisprudence on the subject. 34Included in his assessment was the fact that the applicant had amassed such material over an 18 year period and the quantity was vast. Importantly, care was expressed about the need to assess the appropriate sentence for the individual offences and ultimately his Honour discriminated in his assessment of each of them. The most serious were found to be those identified as sequences 28 and 29. About these, his Honour said: "Sequence 28 found on his laptops and hard drives at his home at Campbelltown contained between 449,000 and 475,000 child pornography images and a mass of video files. The largest bracket of videos (174) was Copine level 9 category. (It is this matter that the Form 1 matter attaches, having 7 further possess child abuse material offences and the offence of surreptitiously filming his wife naked). Sequence 29, which is the most serious, concerns the 534 CDs and DVDs located at the Kennard storage facility. They contained about 860,000 and 900,000 child pornography images and nearly 1,700 videos. That is about twice the amount of material as sequence 28. Whilst the largest number of images was of erotic posing, a significant number were in Copine level 7 to 10 scale. Clearly sequence 28 and 29 fall into upper 'echelon to this kind of offending'. The total number of images and videos involved, the numerous children involved and the sheer depravity [of] what was displayed compels this conclusion." 35Some of that material comprised recordings of offences committed against the applicant's children and their friends and provided the basis for charges to be laid. Some of those recordings had captions added later, presumably for the applicant's, and potentially for others', perverted titillation. One example is a recording of sexual activity performed at the applicant's behest by EC which concluded with the caption: "This hot movie is brought to you by [EC]!!! One super hottie!!! And do you think she enjoyed herself!!! You bet she did !!! She loved every minute of it !!!" Grounds of appeal 36The grounds of appeal, as originally formulated, were: 1. In the structure and casting of the overall sentence inadequate weight or no weight was accorded to the Applicant's pleas of guilty beyond the utilitarian discount. 2. In all of the circumstances the non-parole period expressed as a ratio of the sentence was eighty-two per cent (82%). The ratio was manifestly excessive and too severe. 3. In the determination of the aggregate sentence and non-parole period excessive weight was placed upon the principle of specific deterrence in all of the circumstances. The age of the Applicant was a significant feature in the assessment of the question of specific deterrence. Ground 1 - inadequate, or no, weight to pleas of guilty beyond utilitarian value 37As indicated above, the judge allowed a discount of 25 per cent for the utilitarian value of the applicant's pleas of guilty. Mr Webb, counsel for the applicant, submitted that the pleas had relevance beyond that aspect. "Insufficient" weight was said to have been given to the "subjective features of remorse, contrition and rehabilitation". 38Attention was invited to the fact that the applicant had made a number of admissions when interviewed by police following his arrest; he had indicated a preparedness to participate in appropriate counselling programs; and he had facilitated the course of justice by his relatively early pleas of guilty. Counsel for the applicant also referred to the assertion to Dr Nielssen in respect of the sexual intercourse with GB when she was aged 6 that the applicant "said that he felt disgusted by his actions at that time and that he had acknowledged the offence when it came to light about eight years later, when [GB] was aged thirteen". 39I have earlier referred to his Honour's finding that the applicant had "shown very little remorse". One matter he referred to in that respect was that the applicant had told lies about the extent of his sexual misconduct. An example of that can be found in what the applicant told Dr Nielssen about the offence concerning GB when she was 6. He told the doctor that it was "a single incident of rubbing her in the genital area". A month after his interview with Dr Nielssen, the applicant signed the statement of agreed facts which included that there had in fact been penetration. 40The applicant's pleas of guilty were not a reliable indicator of remorse. There was no argument about them having been entered in the face of a strong prosecution case. The pleas are at least as much a recognition of the inevitability of conviction as they are of remorse: R v Sutton [2004] NSWCCA 225 at [12] (Howie J). 41Another matter the judge considered was that the applicant had not acknowledged the damage his actions had caused his victims. It was conceded that this was a finding that was open to his Honour. Section 21A(3)(i) of the Crimes (Sentencing Procedure) Act confines a finding of remorse as a mitigating feature: an offender must provide evidence of an acceptance of responsibility for his or her actions and, inter alia, acknowledge any injury, loss or damage caused. 42As for rehabilitation, the concern expressed by the judge about the prospect of further offending in the light of Dr Nielssen's assessment of the applicant having a disorder of abnormal sexual interest in underage females was not (and could not) be challenged. It is relevant as well to have regard to the fact that the applicant's offending behaviour spanned some 18 years, in the middle of which he was held to account for two offences of possessing child pornography and continued his offending undeterred. Having regard to these matters, it is unsurprising that the judge found that the applicant's prospects of rehabilitation were "guarded". 43The "weight" to be given to matters such as remorse and rehabilitation prospects is a matter for the discretionary assessment of a sentencing judge and the circumstances in which matters of weight will justify appellate intervention are narrowly confined: R v Baker [2000] NSWCCA 85 at [11] (Spigelman CJ). They fall for assessment under the principles of appellate review of discretionary decision-making set out in House v The King [1936] HCA 40; 55 CLR 499. 44In my view, the assessment of Arnott DCJ of these matters resulted in findings that were well open to him. There was no merit in this ground. Ground 2 - the non-parole period, as 82 per cent of the head sentence, was manifestly excessive 45Section 44 of the Crimes (Sentencing Procedure) Act includes: "(2B) The term of the sentence that will remain to be served after the non-parole period set for the aggregate sentence of imprisonment is served must not exceed one-third of the non-parole period, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision)". (Emphasis added) 46It can be seen that there is no prohibition or constraint upon setting a balance of the term of a sentence at less than one-third of the non-parole period. 47Three arguments were advanced in support of the contention that the non-parole period was excessive. First, it failed to reflect adequate weight being given to the applicant's pleas and his facilitation of the course of justice. Secondly, there was a failure to have regard to a substantial accumulation of sentences. Thirdly, his Honour expressed a finding of "special circumstances" but this was not translated into the non-parole and parole components of the aggregate sentence. 48I have discussed the first matter in the context of the first ground. 49In relation to the second matter, it was necessary to consider that the total of the indicative terms of imprisonment for the applicant's 15 offences (with 12 more taken into account) was just short of 34 years. The judge said that he had regard to the principle of totality in the assessment of the overall sentence and this explains his imposition of an aggregate term of 17 years. (I stress that the judge did not adopt a mathematical approach; I mention the total of the indicative sentences simply to demonstrate the substantial impact the totality principle had upon his assessment of the ultimate sentence). 50It was against that overall term that the judge had to consider the term of the non-parole period. Such a period is the minimum time that a court determines justice requires an offender to serve having regard to all the circumstances of the offence(s): Power v The Queen [1974] HCA 26; 131 CLR 623 at 629; R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at 717 [57]-[59] (Spigelman CJ). The Chief Justice added in the latter (at 718 [63]) that "the ultimate constraint" is that the non-parole period must appropriately reflect the criminality involved in the offence(s). 51It is correct that the judge announced a finding of "special circumstances by reason of the accumulation of the sentences". He only reflected this in the sentence for the s 66A offence of 7 years with a non-parole period of 4 years. 52I have earlier mentioned that there was no need for his Honour to have indicated a non-parole period for the indicative sentences unless a standard non-parole period was prescribed. There is such a prescription in respect of a s 66A offence but it does not apply to an offence committed in 1993. 53I have also mentioned that his Honour specified commencement dates for each of the indicative sentences but that he did not have to. The commencement date specified for the s 66A sentence was the last in time, 18 June 2020. If the judge had been imposing individual sentences, it would have been unremarkable for him to at least find special circumstances in relation to the last in a series of accumulated sentences so that an appropriate parole period was created within the total term. 54The judge was conscious of the fact that the potential period of parole was 3 years and that this was less than a third of the non-parole period. After he had announced the indicative and aggregate sentences, the Crown Prosecutor raised with his Honour that he had made a finding of special circumstances but that the non-parole period was 82 per cent of the total term. He confirmed that the finding was confined to the sentence for the s 66A offence and that there was no need for a finding of special circumstances in respect of the aggregate term where the non-parole component was more than 75 per cent. 55In Houri v R [2013] NSWCCA 279, a sentencing judge found special circumstances which were reflected in individual sentences but in the total term that resulted from partial accumulation, the non-parole component was 75.8 per cent. No error was found because her Honour had specifically adverted to and intended this result. 56I discussed this issue of findings of special circumstances not being translated into an overall sentence in Caristo v R [2011] NSWCCA 7 at [28]-[37]. I said in part: "[36] Where this Court has intervened, it has usually been the case that the sentencing judge has not given effect to a finding of special circumstances through inadvertence or miscalculation. Often this has occurred where sentences have been accumulated but it has occurred in single sentencing exercises as well." 57In that case, as in Houri and the present case, there was no inadvertence or miscalculation. The final result was precisely what the judge intended. 58It was contended that the non-parole period is manifestly excessive but I was not persuaded that it is. The criminality inherent in the applicant's offences, whilst low in respect of some of the individual offences, was very substantial overall. His offending, as I have observed, spanned some 18 years. There were six identified victims, five of them being his own children or their childhood friends. The offences occurred when the children were as young as 6 (GB) and 7 (EC). Many of the offences were video-taped and captioned for later viewing. In addition, there were the countless unidentified victims of the child pornography offences. 59The applicant's collection of child pornographic material was described by the judge as "massive - in total between 1.3 and 1.4 million still images and a further 3,288 videos". Without descending into explicit detail about the nature of this material, an indication of the level of depravity of some of it can be gleaned from the description in the statement of agreed facts of some of the videos: "A number of the videos are classified 10 on the Copine scale and depict children being tied, bound, in pain or engaged in sexual behaviour with an animal." 60There was no merit in this ground. Ground 3 - excessive weight placed upon specific deterrence 61In contending that excessive weight was placed upon specific deterrence it was submitted that the risk of the applicant re-offending was less than the judge had assessed it to be. He accepted that there was no risk of further interference with the applicant's own children but it was argued that the risk of interfering with other children was minimal, or absent, given his past offending had been against children to whom he had ready access. It was also contended that the evidence did not establish that there was a likelihood of further offending in relation to the possession of child abuse material. Too much weight was therefore given to the protection of the community in the assessment of both the total term and the non-parole period. 62A further submission was that insufficient weight was given to the age of the applicant. He will be 68 when he becomes eligible for release on parole, thereby reducing his risk of re-offending. Age was also relevant to characterising the sentence as "crushing" because it "will more probably than not occupy, in large part, the substantial balance of worthwhile life remaining to the applicant". Counsel for the applicant referred in this respect to R v Holyoak (1995) 82 A Crim R 502, but I note that what was said there about advanced age of an offender concerned a man who was aged 75 at the time of sentencing and who would not be eligible for parole until his early 80's. 63The applicant's age was not a factor requiring a lesser sentence or non-parole period. It was not contended that imprisonment would be more onerous on account of his age or that his health or life expectancy had any particularly bearing upon the assessment of sentence. 64The judge did not mention specific deterrence but did deal with the applicant's rehabilitation and mentioned his age in that context: "Notwithstanding his willingness to participate in counselling programs made available as referred to by Dr Nielssen, his prospects of rehabilitation must be guarded. As regards the risk of his re-offending the reality is there is no risk he will sexually interfere with his children again. However, Dr Nielssen has diagnosed a disorder of abnormal sexual interest in underage females and there remains a reasonable risk that he might attempt to photograph young children in inappropriate poses, or sexually interfere with them, or access child pornography in the future. A sentencing judge may not extend the period of sentence for the purpose of preventative detention but that is not to say that the protection of the community is not a material factor in fixing an appropriate sentence. Mr Winch submits that the Crown has not established that there is a 'significant risk' that he will re-offend. Furthermore he submits correctly that he will be much older when the non parole period expires, being a relevant consideration to this issue. Nonetheless I consider there is a significant risk that he will attempt to possess child abuse material in the future. My finding of greater dangerousness in this regard does not follow from his absence of contrition and remorse, it is based upon abnormal sexual disorder about which Dr Nielson spoke." 65According to the first of Dr Nielssen's two reports, the applicant's interest was in "girls aged between twelve and nineteen". Given that his children were all adults, the judge was correct to dismiss any concern about further offending in relation to them. But as to other children, including those who may be the subject of child pornography, the quantity and nature of the material in the applicant's possession of such material provided grounds for real concern. 66The applicant's entrenched interest and desire in relation to child sexual abuse provided grounds for significant scepticism about his prospects of rehabilitation. There is no error in his Honour's reasoning or conclusion. For my part I considered that no other conclusion could be justified. Specific deterrence was a significant matter in the assessment of sentence and I was not persuaded that this ground had merit. Two further matters 67The Crown fairly drew the Court's attention to two errors in the sentencing remarks and they became the subject of two further grounds that were added the day before the hearing. One was the gap between the conclusion of some of the sentences and the commencement of the next sentence. The period involved is one year. I referred to this earlier and did not think it was material. It was quite plain that the judge applied the principle of totality and assessed the appropriate aggregate sentence as being one of 17 years. The dates he unnecessarily applied to the indicative sentences were obviously an attempt to achieve his intended result. The fact that an error crept in had no bearing on the outcome. 68The other error identified was in the judge's statement that the maximum penalty for the s 61N(1) offences was 7 years whereas it is 2 years. For these two offences the judge indicated sentences of 6 months. It would seem that his Honour was misled in this respect by an error in the "Crown Sentence Summary" that accompanied its tendered documents and a repetition of the error in the submissions of counsel who appeared for the applicant (AB 294.8). The error as to the statement of the maximum penalty had no material bearing upon the assessment of the aggregate sentence. No correction by way of resentencing was called for. Conclusion 69The sentence imposed was obviously a substantial one but it was well warranted by the nature, gravity and duration of the applicant's offending. 70None of the proposed grounds of appeal had any merit and so it was appropriate that leave to appeal be refused. 71SCHMIDT J: I agree with R A Hulme J. ********** 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: 14 March 2014