Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Miao v R [2017] NSWCCA 89 Hearing dates: 15 March 2017 Decision date: 10 May 2017 Before: Leeming JA at [1]; Latham J at [2]; Campbell J at [56] Decision: Leave granted. Appeal dismissed. Catchwords: CRIMINAL LAW - appeal against sentence - use a carriage service to access child pornography - possess child abuse material and like offence taken into account on Form 1 - whether an inadequate discount was applied - whether the objective criminality was properly assessed - whether an Intensive Corrections Order should have been considered - whether the sentence was manifestly excessive - leave to appeal granted - appeal dismissed Legislation Cited: Criminal Code 1995 (Cth); s 474.19; 17A Crimes Act 1900 (NSW): s 91H Crimes (Sentencing Procedures) Act 1999 (NSW); ss 7, 12 Cases Cited: Fedele v R [2015] NSWCCA 286 R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 Atkinson v R [2014] NSWCCA 262 Villalon v R [2015] NSWCCA 229 R v Oinonen [1999] NSWCCA 310 R v Cardoso [2003] NSWCCA 15; 137 A Crim R 535 Burbridge v R [2016] NSWCCA 128 R v Porte [2015] NSWCCA 174 Douar v R [2005] NSWCCA 455; 159 A Crim R 154 R v Zamagias [2002] NSWCCA 17 R v Wegener [1999] NSWCCA 405 Category: Principal judgment Parties: Zhiguo Miao (Applicant) Crown (Respondent) Representation: Counsel: S Kluss (Applicant) L Crowley (Crown) Solicitors: Ross Hill and Associates (Applicant) Director of Public Prosecutions (Cth) (Crown) File Number(s): 2014/187114 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: [2016] NSWDC 181 Date of Decision: 19 August 2016 Before: Berman SC DCJ File Number(s): 2014/187114; 2013/231791 Judgment 1. LEEMING JA: I agree with Latham J. 2. LATHAM J: The applicant, Zhiguo Miao, seeks leave to appeal against a sentence imposed upon him on 19 August 2016 by Judge Berman SC with respect to two offences, namely, use carriage service to access child pornography (s 474.19(1)(a)(i) of the Criminal Code 1995 (Cth)) and possess child abuse material (s 91H(2) Crimes Act 1900 (NSW)). A further offence of possess child abuse material was taken into account on a Form 1 when sentencing for the like offence. 3. On the Commonwealth offence, the applicant received a fixed term of one year and three months commencing 19 August 2016. On the State offence, the applicant received a term of two years imprisonment, with a non parole period of 12 months, commencing 19 November 2016. Thus, the sentences were accumulated by three months, resulting in a total sentence of two years and three months with a non parole period of one year and three months. The Offences 1. On 28 June 2013 the applicant ordered a 132cm child doll with sexual function by email for the amount of approximately $4,000.00. The applicant specified a number of features of the doll including hair, skin and eye colour. The head of the doll and the vaginal insert were shipped separately from the body of the doll. 2. Police intercepted the package containing the head and vagina on 18 July 2013. It was never delivered to the applicant. 3. On 20 July the applicant took delivery of the body of the doll. On 30 July, the police executed a warrant on the applicant's premises where they found the doll dressed in a satin dressing gown in the applicant's bed. The doll is the subject of the offence on the Form 1. 4. A number of storage devices and a laptop computer were seized and searched. A quantity of child pornography was stored on these devices. There were approximately 123 different children depicted in the material, the majority of whom were under 10 years of age. Some of them were infants. 5. A total of 361 images and 56 videos were found. The majority of the images and about half of the videos depicted children in erotic poses with no sexual activity. Twenty nine images and 11 videos depicted penetrative sexual activity between children or between adults and children. Seventeen images and three videos depicted sadism, humiliation or bestiality. 6. These images and the videos are the subject of the use carriage service to access child pornography charge, which carries a maximum penalty of 15 years' imprisonment, and the possess child abuse material charge, which carries a maximum penalty of 10 years' imprisonment. 7. The applicant told police that neither the doll nor the child abuse material was used for his sexual gratification, claims that the judge rejected. The Applicant's Subjective Case 1. The judge noted that the applicant was a person of good character who was employed at the time of his arrest. A number of character references attested to his industrious, kind and helpful nature. 2. The applicant was born in China and completed a Bachelor of Business degree before coming to Australia in 2006 to undertake a Masters in Information Technology and a Masters in Computing. 3. The applicant began consulting a psychologist in November 2015. The psychologist diagnosed an obsessive compulsive personality disorder and a major depressive disorder. In evidence, the psychologist said that she regarded the risk of the applicant reoffending as low. 4. The judge expressed some doubts in relation to those conclusions. His Honour noted that the applicant was less than frank in regards to his motivation for the commission of the offences and that the applicant did not give evidence affirming the information that he had given to the treating psychologist. The psychologist's opinion that the applicant was socially isolated was not consistent with the testimonials tendered on the applicant's behalf. 5. The judge also noted the psychologist's limited experience in the realm of paraphilia. The applicant was the first client who had disclosed an interest in child pornography. The psychologist was treating the applicant for Obsessive Compulsive Disorder and depression, not paraphilia. 6. It was in the context of these shortcomings in the psychologist's expertise and experience that his Honour concluded that it could not be said that the applicant's prospects of rehabilitation were good. The Objective Gravity of the Offences 1. The judge commenced his assessment of the objective gravity of the offences by noting that:- [C]hildren are harmed in the production of this material [and that] there is a demand for it which is satisfied by evil people abusing children in the most awful ways so that images and videos of the kind the offender possessed can be viewed by others. 1. The judge went on to say:- There is a considerable degree of overlap between the 2 offences on the indictment. Almost all child abuse material is now obtained over the internet and so every time a person is found in possession of an image or a video, a State offence, that image or video has been obtained through the utilisation of a carriage service, a Commonwealth offence. However the authorities require that the sentences imposed for such matters not be entirely concurrent. In order to reflect the different aspects of criminality covered by the 2 charges there will be a level of accumulation. In assessing the objective gravity I note that when compared to many other offenders this offender possessed relatively few images and videos and that most of them were in the lowest category of seriousness. On the other hand as I have already identified a significant number of children were harmed in the production of the material which the offender possessed and there was a not insignificant number of images and videos in the most serious categories. 1. Specific reference was made to Fedele v R [2015] NSWCCA 286, a decision of this Court upon which the applicant's counsel relied below, and which is again called in aid of the applicant's argument on appeal. In Fedele, this Court substituted an Intensive Corrections Order for a full time sentence of imprisonment. His Honour regarded the gravity of Mr Fedele's conduct as significantly lower than the applicant's, given that only five videos and 49 "thumbnail" files were the subject of the offences in that case. Relevantly for the purposes of this application, his Honour then said:- In any case, as the Court of Criminal Appeal has said on many occasions a single decision of the [CCA] does little by way of establishing an appropriate range of sentences. What is necessary is for me to assess the appropriate sentences given the maximum penalties, my assessment of the objective gravity of the offender's conduct, his subjective features and the well-known principles concerning sentencing for child pornography matters which have been stated by the [CCA] on many occasions. Not only am I satisfied that a custodial sentence is required, but I am satisfied that nothing less than a full time custodial sentence properly reflects the matters to which I have referred. In any case, the length of the overall sentence I have decided upon is such that no alternatives to full time custody are available, that circumstance arising from the need for a small level of accumulation. The Grounds of Appeal 1. Before turning to address the individual grounds of the appeal, it is appropriate to say something about the applicant's argument. It was conceded by the applicant on the hearing of the appeal that a sentence of imprisonment was warranted in the circumstances of this case, but that the judge fell into error by failing to consider the imposition of an Intensive Corrections Order or a suspended sentence. This asserted error was framed as Ground Four on the appeal. However, as the Crown submitted, all five grounds had the same theme, albeit expressed in different ways. If there was no error in the assessment of the factors leading to the individual sentences and the total term of imprisonment, and no latent error resulting in manifest excess, no occasion arose for a consideration of alternatives to full time custody by his Honour because the two year threshold was necessarily exceeded: ss 7, 12 Crimes (Sentencing Procedure) Act 1999 (NSW). 2. Grounds One, Two and Three were framed as errors in the evaluative assessment by the judge of the discount for the applicant's plea of guilty (Ground One), the assessment of the objective gravity of the offences (Ground Two) and the applicant's prospects of rehabilitation (Ground Three). It was not submitted that his Honour failed to assess these factors, rather that his assessment was "inadequate", or that he failed to "properly assess" them. 3. Ground Five is a ground of manifest excess which is simply and shortly stated in the written submissions as a contention "that the sentences are, alone or in combination, manifestly excessive and 'unreasonable or plainly unjust'" for the reasons articulated in relation to the preceding grounds. 4. It is convenient then to address Grounds One, Two, Three and Five before dealing with Ground Four. Ground One 1. The judge discounted the sentences on each offence by 20% on the basis that the applicant pleaded guilty at the completion of the committal proceedings. The short delay in entering those pleas was occasioned by a dispute relating to the characterisation of the child sex doll as child abuse material. His Honour did not regard that issue as in any way justifying the delay in the applicant's pleas. 2. The applicant argued that this circumstance ought not deprive him of the benefit of the full 25% discount. The legal issue with respect to the characterisation of the doll was determined by Huggett DCJ on 17 September 2015. Following that determination, the Crown consented to that offence being dealt with on a Form 1. In that regard, the applicant received some benefit inherent in that procedure. 3. The applicant acknowledges the force of Howie J's judgment (McClellan CJ at CL and Simpson J agreeing) in R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1, in so far as the reason for the delay is generally not relevant because the utilitarian value of a plea is the basis of the discount. However, the applicant maintains that the reason for the delay in his case was a valid one which ought to have provoked "the exercise of discretion for awarding the maximum discount where the plea of guilty [was delayed]": Borkowski at [31]. The further qualification to that observation by Howie J was that such a case "would be exceptional and arise from the peculiar factual situation in a particular case." 4. The applicant called in aid two decisions of this Court, Atkinson v R [2014] NSWCCA 262 and Villalon v R [2015] NSWCCA 229. In Atkinson, the Court substituted a full discount for a partial discount following reception of an affidavit from that applicant establishing that he had instructed his lawyers to enter pleas of guilty at the earliest opportunity, and that instruction had not been acted upon. In Villalon, the Court substituted a full discount for a partial discount in circumstances where that applicant had offered to plead guilty to manslaughter before committal, had entered that plea at committal and confirmed it on arraignment for the offence of murder, and was ultimately convicted of manslaughter. This decision was consistent with the approach taken in R v Oinonen [1999] NSWCCA 310 and in R v Cardoso [2003] NSWCCA 15; 137 A Crim R 535. 5. I am not persuaded that the circumstances relied upon by the applicant are "exceptional" or that they were "peculiar" to his case. The judge was entirely correct in observing that any dispute about the elements of one offence should have had no bearing on the timing of his pleas of guilty to the other two offences. Ultimately, the discount was referrable to the sentences imposed for those two offences. 6. The basis of intervention by this Court in Atkinson and Villalon is in an altogether different category. It was entirely appropriate to give the benefit of the full discount to offenders who had acknowledged their guilt from the earliest opportunity. The applicant did not. The extent of the discount is a discretionary exercise. There is no basis to conclude that the exercise of that discretion miscarried. 7. I would dismiss this ground of the appeal. Ground Two 1. This ground asserts that the judge "erred in not properly assessing the objective criminality of the offences." The written submissions sought to advance the proposition that this error arose in part from the judge's refusal to examine the sample images found on the applicant's computer. However, that submission was withdrawn on the hearing of the appeal. 2. The applicant claims that his Honour's consideration of Fedele was flawed, in that his Honour did not have due regard to the comparative sentences examined in Hidden J's judgment at [55] to [61]. The applicant's submission appears to proceed on this basis – all of the ten superior court decisions discussed by Hidden J were objectively more serious than the applicant's case, therefore the applicant should not have received a sentence comparable to the full time custodial sentences imposed in those cases. 3. It is conceded that his Honour correctly assessed the applicant's criminality as greater than that which applied in Fedele. 4. It is noteworthy that in eight of the ten cases to which Hidden J refers, full time terms of imprisonment ranging between 18 months and three years were imposed or affirmed after a successful Crown appeal. The remaining two cases were unsuccessful Crown appeals against alternatives to full time imprisonment. The restraint inherent in the disposition of Crown appeals suggests that these cases ought not be regarded as reliable indicators of sentences appropriate to a given level of objective gravity at first instance: see Burbridge v R [2016] NSWCCA 128 per Macfarlan JA at [4]. 5. The applicant maintains that the offending images were less than 5% of the total number of the images he had collected, the vast majority being in the realm of adult pornography. This, it was said, was consistent with his compulsion to collect material generally of a sexual nature and warranted an assessment of objective gravity at the lower end of the scale. 6. In the absence of evidence from the applicant on sentence, there was no basis to infer that the applicant made a deliberate choice with respect to the quantity of child pornographic material that was downloaded relative to the quantity of adult pornography found on the computer. It is the experience of the courts in these matters that the decision to access child pornography may result in downloads of a range of pornographic material. 7. In any event, the assessment of objective gravity focuses on the material that is the subject of the charges, not its possession relative to material that is not the subject of any offence. The category of seriousness of the images, the number of different children depicted in those images, and the age of the children are all factors relevant to an assessment of objective gravity. His Honour took all these matters into account. There is no complaint that he took any irrelevant matter into account. 8. I would dismiss this ground of the appeal. Ground Three. 1. The applicant submits that the judge failed to properly assess his prospects of rehabilitation. The asserted inadequacy consisted of his Honour's "rejection" of the psychologist's opinion that the risk of re-offending by the applicant was "low". 2. It was further submitted that the condition of paraphilia "was of narrow relevance to the issue of the potential rehabilitation of the applicant" so that his Honour's reservations relating to the qualifications and experience of the treating psychologist were of lesser significance. 3. These submissions may be briefly dealt with. His Honour did not "reject" the psychologist's opinion. His Honour articulated "a number of problems accepting those conclusions". The applicant does not assert that the judge was not entitled to have regard to those problems. The judge then concluded that "in such circumstances it cannot be said that the prospects of the offender's rehabilitation are good". 4. Such a guarded view of the applicant's prospects of rehabilitation was entirely warranted. The evidence underpinning the issue of rehabilitation was not cogent for the reasons identified by the judge. I disagree that paraphilia had little relevance to the applicant's rehabilitation. Treatment for depression and/or obsessive compulsive disorder would not necessarily address the applicant's tendency to sexual perversion, thus rendering him prone to further offending. The applicant's refusal to acknowledge that he possessed the images and the doll for his own sexual gratification also did not augur well for his rehabilitation. 5. I would dismiss this ground of the appeal. Ground Five 1. The remaining factor affecting the length of the total sentence is the degree of accumulation. The applicant concedes that accumulation to the extent of three months "was technically consistent with authority", but maintains that the resulting sentence was nevertheless manifestly excessive. 2. Once again, the applicant's argument seeks to compare the number of images in his case with the greater number of images in cases attracting the same degree of accumulation, for example R v Porte [2015] NSWCCA 174. This argument is misconceived. The extent of accumulation is a concomitant of the need to reflect the totality of the criminality represented by more than one offence. The only question is whether the total sentence is manifestly excessive in the sense that it is so far outside the range of sentences for offences of a like nature that it is plainly unjust or unreasonable. 3. Given the range of sentences identified in Fedele, and having regard to Macfarlan JA's comments in Burbridge noted above, the individual sentences imposed upon the applicant and the total sentence do not fall outside the range for offences of this nature. 4. I would dismiss this ground of the appeal. Ground Four 1. This ground asserts a failure on the part of the judge to consider s 17A(2) of the Crimes Act 1914 (Cth) and alternatives to full time imprisonment pursuant to the Crimes (Sentencing Procedure) Act 1999 (NSW). 2. In the course of the sentencing proceedings, the applicant's legal representative referred at length to Fedele in support of the proposition that an Intensive Corrections Order would be an appropriate sentence in the applicant's case. 3. The judge was keenly aware of these submissions when he came to sentence. His Honour referred to and rejected them immediately before noting that the appropriate sentence was to be determined having regard to the maximum penalties, the objective gravity of the offences, the applicant's subjective features and the sentencing principles applicable to child pornography offences. 4. The judgment of Johnson J in Douar v R [2005] NSWCCA 455 ; 159 A Crim R 154 (McClellan CJ at CL and Adams J agreeing) at [69] to [72] is relied upon by the applicant for the purposes of this ground. It should be borne in mind that the Court in Douar was dealing with a single ground of appeal in respect of a sentence for a single offence, that is, that the sentencing judge failed to adopt a two stage approach mandated by the legislature when imposing a sentence of periodic detention. The argument in Douar was that the sentencing judge determined to impose a sentence of periodic detention and then tailored the length of the sentence accordingly. 5. Douar makes clear that the objective gravity of an offence principally determines "which of the available sentencing alternatives the Court should adopt: Zamagias at paragraph 23" [69]. Johnson J went on to say:- 70 The first question to be asked and answered is whether there are any alternatives to the imposition of a term of imprisonment. Section 5 prohibits a Court from imposing a sentence of imprisonment unless the Court is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. At this stage in the process, the only consideration is whether a sentence of imprisonment should be imposed, and not the manner in which that sentence of imprisonment is to be served: Zamagias at paragraph 25. 71 The second step is reached where the Court has determined that no penalty is appropriate other than a sentence of imprisonment. The Court is next to determine what the term of that sentence should be. This has been regarded as the first step of a two-step approach: Foster at paragraph 30; Zamagias at paragraph 26. The determination of the term is to be made without regard to whether the sentence will be immediately served or the manner in which it is to be served. This is because any of the alternatives available in respect of a sentence of imprisonment can only be considered once the sentence has been imposed. It follows that the term of the sentence cannot be influenced by what order might be made after the sentence has been imposed. The sentence cannot be increased because it is to be served by way of periodic detention: Wegener at paragraph 22; Zamagias at paragraph 26. 72 The third stage is reached once the length of the sentence of imprisonment has been determined. The Court is then to consider whether any alternative to full-time imprisonment is available in respect of that term and whether any available alternative should be utilised. The availability of an alternative to full-time custody will generally be governed by the length of the term that has been determined, subject to the restrictions or preconditions imposed by the legislature on a particular sentencing alternative. The appropriateness of an alternative to full-time custody will depend upon a number of factors; one of importance being whether such an alternative would result in a sentence that reflects the objective seriousness of the offence and fulfils the manifold purpose of punishment. The Court in choosing an alternative to full-time custody cannot lose sight of the fact that the more lenient the alternative, the less likely it is to fulfil all the purposes of punishment: Zamagias at paragraph 28. (emphasis added) 1. The judge's approach fulfilled these requirements. The judge was satisfied that a sentence of imprisonment was required and that nothing less than full-time custody properly reflected all of the applicable sentencing factors, including the principle of totality. The length of the sentence was a product of a degree of accumulation which ruled out the availability of alternatives to full-time custody. 2. I would dismiss this ground of the appeal. 3. It follows I would grant leave to appeal but dismiss the appeal. 4. CAMPBELL J: I agree with Latham 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: 10 May 2017