Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Martin v R [2019] NSWCCA 197 Hearing dates: 22 July 2019 Date of orders: 26 August 2019 Decision date: 26 August 2019 Before: Basten JA at [1] Johnson J at [2] Price J at [90] Decision: 1. Grant leave to appeal against sentence. 2. Appeal against sentence dismissed. Catchwords: CRIMINAL LAW – leave to appeal against sentence – offender pleaded guilty to 22 offences relating to child pornography and child abuse material – additional 15 child pornography offences taken into account on sentence – offender transmitted and solicited child abuse material to and from various male children – possession of child abuse material – offender transmitted indecent communications to various victims – offending conduct occurred over two-and-a-half-year period involving multiple offences and actual victims – two child victims of indecent communications identified – victims provided victim impact statements – two grounds of appeal that overall sentence was manifestly excessive as sentences imposed on discrete counts were manifestly excessive – element of artificiality in the complaints – sentences for discrete counts open to sentencing Judge – no error demonstrated – ground of appeal that overall sentence was manifestly excessive – active and persistent offender – favourable findings based on psychological evidence – cautionary approach given limited insight into offending behaviour – general deterrence a primary consideration in offences involving sexual predatory conduct towards children – no demonstrable error in total effective sentence – leave to appeal granted – appeal dismissed Legislation Cited: Crimes Act 1900 (NSW) Crimes Act 1914 (Cth) Criminal Code (Cth) Cases Cited: Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 Director of Public Prosecutions (Cth) v Garside (2016) 50 VR 800; [2016] VSCA 74 Director of Public Prosecutions (Cth) v Ramos [2018] VSCA 290 Hong v R [2017] NSWCCA 238 Lyons v R [2017] NSWCCA 204 McNiece v R [2019] VSCA 78 Miao v R [2017] NSWCCA 89 Milliner v R [2019] NSWCCA 127 Minehan v R (2010) 201 A Crim R 243; [2010] NSWCCA 140 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 Peters v R [2018] NSWCCA 126 R v De Leeuw [2015] NSWCCA 183 R v Lamella [2014] NSWCCA 122 R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174 R v Thalari (2009) 75 NSWLR 30; [2009] NSWCCA 170 Texts Cited: --- Category: Principal judgment Parties: Aaron James Martin (Applicant) Regina (Respondent) Representation: Counsel: Mr GD Wendler; Mr CLW Street (Applicant) Mr A McGrath (Respondent) Solicitors: Virginia Taylor Solicitors (Applicant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2015/350150 Publication restriction: --- Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: --- Citation: --- Date of Decision: 3 August 2019 Before: Judge Gartelmann SC File Number(s): 2015/350150 Judgment 1. BASTEN JA: I agree with Johnson J. 2. JOHNSON J: The Applicant, Aaron James Martin, seeks leave to appeal with respect to sentences imposed at the Newcastle District Court on 3 August 2018 for a number of child pornography and child abuse material offences under the Criminal Code (Cth) and the Crimes Act 1900 (NSW). The Sentences 1. Following pleas of guilty, the Applicant was sentenced by his Honour Judge Gartelmann SC to a total effective sentence of imprisonment for seven years commencing on 28 July 2018 with a non-parole period of four years expiring on 27 July 2022. 2. The offences, maximum penalties and sentences imposed for each offence are set out in the following table: Count Offence Maximum Penalty Sentence Term 1 Between 28 May 2013 and 26 August 2013, using carriage service to transmit child pornography material contrary to s 474.19(1)(a)(iii) Criminal Code (Cth) 15 years' imprisonment Three years' imprisonment 28 July 2019 to 27 July 2022 2 Between 25 June 2013 and 2 July 2013, a further offence under s 474.19(1)(a)(iii) Criminal Code (Cth) 15 years' imprisonment Two years' imprisonment 28 July 2019 to 27 July 2021 3 On about 13 August 2013, a further offence under s 474.19(1)(a)(iii) Criminal Code (Cth) 15 years' imprisonment Two years' imprisonment 28 July 2019 to 27 July 2021 4 Between 29 August 2013 and 23 May 2014, using a carriage service to solicit child pornography material under s 474.19(1)(a)(iv) Criminal Code (Cth) 15 years' imprisonment Two years' imprisonment 28 July 2019 to 27 July 2021 5 On about 18 April 2014, a further offence under s 474.19(1)(a)(iii) Criminal Code (Cth) 15 years' imprisonment Two years' imprisonment 28 July 2019 to 27 July 2021 6 Between 23 May 2014 and 5 May 2015, a further offence under s 474.19(1)(a)(iv) Criminal Code (Cth) 15 years' imprisonment Three years' imprisonment 28 July 2019 to 27 July 2022 7 Between 29 November 2014 and 30 November 2014, a further offence under s 474.19(1)(a)(iv) Criminal Code (Cth) 15 years' imprisonment Three years' imprisonment 28 July 2019 to 27 July 2022 8 Between 1 April 2015 and 3 September 2015, a further offence under s 474.19(1)(a)(iv) Criminal Code (Cth) 15 years' imprisonment Three years' imprisonment 28 July 2020 to 27 January 2024 9 Between 1 April 2015 and 3 September 2015, using a carriage service to transmit indecent communication to person under 16 years of age contrary to s 474.27A(1) Criminal Code (Cth) Seven years' imprisonment Two years and six months' imprisonment 28 July 2020 to 27 January 2023 10 Between 2 April 2015 and 11 May 2015, a further offence under s 474.19(1)(a)(iv) Criminal Code (Cth) 15 years' imprisonment Two years imprisonment 28 July 2021 to 27 July 2023 11 Between 6 April 2015 and 7 April 2015, a further offence under s 474.19(1)(a)(iv) Criminal Code (Cth) 15 years' imprisonment Two years' imprisonment 28 July 2021 to 27 July 2023 12 Between 6 April 2015 and 13 May 2015, a further offence under s 474.19(1)(a)(iii) Criminal Code (Cth) 15 years' imprisonment Two years' imprisonment 28 July 2021 to 27 July 2023 13 Between 7 April 2015 and 18 May 2015, a further offence under s 474.27A(1) Criminal Code (Cth) Seven years' imprisonment One year and six months' imprisonment 28 July 2021 to 27 January 2023 14 Between 9 April 2015 and 11 April 2015, a further offence under s 474.27A(1) Criminal Code (Cth) Seven years' imprisonment One year and six months' imprisonment 28 July 2021 to 27 January 2023 15 On about 10 April 2015 and 8 May 2015, a further offence under s 474.19(1)(a)(iv) Criminal Code (Cth) 15 years' imprisonment Two years' imprisonment 28 July 2022 to 27 July 2024 16 Between 10 April 2015 and 8 May 2015, a further offence under s 474.27A(1) Criminal Code (Cth) Seven years' imprisonment One year and six months' imprisonment 28 July 2022 to 27 January 2024 17 On about 18 April 2015 and 19 April 2015, a further offence under s 474.27A(1) Criminal Code (Cth) Seven years' imprisonment One year imprisonment 28 July 2022 to 27 July 2023 18 Between 20 April 2015 and 29 April 2015, a further offence under s 474.27A(1) Criminal Code (Cth) Seven years' imprisonment One year imprisonment 28 July 2022 to 27 July 2023 19 Between 18 June 2015 and 17 July 2015, a further offence under s 474.27A(1) Criminal Code (Cth) Seven years' imprisonment Two years' imprisonment 28 July 2023 to 27 July 2025 20 Between 17 November 2015 and 27 November 2015, a further offence under s.474.27A(1) Criminal Code (Cth) Seven years' imprisonment Two years' imprisonment 28 July 2023 to 27 July 2025 21 On about 27 November 2015, possession of child abuse material contrary to s 91H(2) Crimes Act 1900 (NSW) 10 years' imprisonment Fixed term of imprisonment for two years 28 July 2018 to 27 July 2020 22 On about 27 November 2015, a further offence under s 91H(2) Crimes Act 1900 (NSW)) 10 years' imprisonment Fixed term of imprisonment for one year and six months 28 July 2018 to 27 January 2020 1. An additional 15 child pornography offences under the Criminal Code (Cth) were taken into account on sentence under s 16BA Crimes Act 1914 (Cth) on sentence for Counts 1, 2, 4, 6, 10, 19 and 20. The offences taken into account under s 16BA were as follows: 1. one offence of using a carriage service to transmit child pornography material under s 474.19(1)(a)(iii) Criminal Code (Cth); 2. six offences of using a carriage service to solicit child pornography material contrary to s 474.19(1)(a)(iv) Criminal Code (Cth); and 3. eight offences of using a carriage service to transmit an indecent communication to a person under 16 years of age contrary to s 474.27A(1) Criminal Code (Cth). 1. With respect to the offences under the Criminal Code (Cth) (which constituted Counts 1-20), a single non-parole period of three years was fixed commencing on 28 July 2019 and expiring on 27 July 2022. 2. A non-parole period was not imposed for Counts 21 and 22 (the s 91H(2) Crimes Act 1900 (NSW) offences), each of which attracted a fixed term of imprisonment. The Commonwealth non-parole period commenced on 28 July 2019, being one year after the commencement of the fixed terms of imprisonment imposed for Counts 21 and 22. The Applicant's Grounds of Appeal 1. By Notice of Application for Leave to Appeal filed 30 April 2019, the Applicant communicated the following grounds of appeal: 1. Ground 1 - the overall sentence was manifestly excessive because the sentences imposed on Counts 21 and 22 on the indictment were manifestly excessive; 2. Ground 2 - the overall sentence was manifestly excessive because the sentences on Counts 11, 12, 15, 19 and 20 were manifestly excessive. 3. Ground 3 - the overall sentence was manifestly excessive in the sense that it was unreasonable or unjust in the Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 sense. Facts of Offences 1. The sentencing Judge summarised the facts of the offences, utilising an Agreed Statement of Facts for that purpose. No challenge was made in this Court to his Honour's findings of fact concerning the offences. Given the challenges made in the grounds of appeal, it is appropriate to set out extracts from his Honour's sentencing remarks. Investigation and Arrest of Applicant in 2015 1. His Honour commenced with an overview of the 2015 investigation of the Applicant's activities (ROS 2-3): "In May 2015 the New South Wales Police received information that from April 2015 the offender had been engaged in sexually explicit online communications with a 13 year old child [K]. Consequently investigators assumed the identity of this child and commenced communicating with the offender up until September 2015. During the period of the communications the offender engaged in highly sexualised chat with the assumed identity where the offender would also request sexually explicit material from the victim, transmit pornographic images to the victim, describe the sexual acts he would like to do upon the victim and suggest meeting up to engage in sexual activity. In November 2015 New South Wales Police received further information that the offender had been engaged in sexually explicit online communications with an 11 year old child [T]. Again investigators assumed the identity of this child and commenced communicating with the offender. During the period of the communication the offender would engage in highly sexualised chat with the assumed identity and describe the sexual acts he would like to perform on the victim and also arrange to meet. However the offender did not turn up to the planned meeting and was subsequently arrested at his premises by police. Following the offender's arrest police executed a search warrant at his premises and seized a number of electronic devices, including the offender's Apple iPhone and Toshiba laptop computer. Subsequent examination of the offender's iPhone revealed that the offender had been engaged in numerous online communications with another 24 victims over a protracted period. The offender's iPhone was also found to contain child abuse material. In addition an examination of the offender's Toshiba laptop computer located child abuse material. The offender was charged with a range of offences including use carriage service to transmit child pornography material, use carriage service to solicit child pornography material, use carriage service to send indecent material to person under 16 years, and possess child abuse material." 1. His Honour then moved to describe the offences for which the Applicant was to be sentenced together with the additional offences to be taken into account under s 16BA Crimes Act 1914 (Cth). The Child Exploitation Tracking System ("CETS") Scale 1. From time to time in the following factual narrative, reference will be made to the CETS scale. The CETS scale classifies the activity depicted in child pornography and child abuse material as follows: 1. Category 1 - nudity or sexually suggestive posing with no sexual activity; 2. Category 2 - non-penetrative sexual activity between children, or solo masturbation by a child; 3. Category 3 - non-penetrative sexual activity between adult(s) and child(ren); 4. Category 4 - penetrative sexual activity between children or adult(s) and child(ren); 5. Category 5 - sadism, humiliation or bestiality; and 6. Category 6 - animated or virtual depictions of children engaged in sexual poses or activity. Offences in 2013-2014 1. The sentencing Judge described the Applicant's offences committed in 2013-2014 (ROS 3-6): "ITEM 1 S 16BA SCHEDULE Between 27 April 2013 and 6 October 2013 the offender communicated online using his iPhone with a person using the identity '[xxx]'. On 12 June 2013, 15 June 2013 and 17 July 2013 the offender transmitted one image on each of those days, three images in total, that contained child abuse material. Investigators classified those three images as category 6 on the CETS scale. COUNT 1 AND ITEM 2 ON THE 16BA SCHEDULE Between 28 May 2013 and 26 August 2013 the offender communicated online using his iPhone with a person using a nominated number. During the communication the offender almost immediately began to request explicit images from the victim, who repeatedly asked the offender to go away stating 'Jesus Christ you pedo, I am a 12 year old boy'. The offender replied 'You are a very beautiful boy too'. The offender requested a video of the victim and stated 'Then you can show me your hard cock'. Despite further requests by the victim to stop, the offender repeatedly requested pictures of the victim stating 'Just one naked selfie'. The offender continued his requests and instructed the victim on how to make a good video for him 'not just your cock and you coming, I want to see your cute face while you do it'. During the communications the offender was again reminded of the age of the victim, which he acknowledged. Despite numerous requests to stop messaging the victim, and the victim telling the offender that he was scared by his behaviour, the offender continued to relentlessly message the victim and request explicit material from him. On 12 June 2013 and 18 June 2013 the offender transmitted two images containing child abuse material. The first image was accompanied by a text from the offender that stated 'dayum'!. The second image was accompanied by a text from the offender that stated 'dayum that's hot'. These images were classified by investigators as being category 6 on the CETS scale. COUNT 2 ITEM 3 S 16BA SCHEDULE Between 15 June 2013 and 2 July 2013 the offender communicated online using his iPhone with a person using a nominated number. During the communication the offender immediately requested a 'sexy pic' and sent a pornographic image of two males engaged in sexual activity. The victim declined and the offender then sent an image containing child abuse material to the victim. Investigators classified this image as category 6 on the CETS scale. During further communications the offender was informed that the victim was 14 years old, to which the offender replied 'I don't care'. The offender went on to request explicit pictures and videos from the victim stating 'Send one pic and then a vid, I want to see your whole body and see your hard cock' and 'It'll be fun to see you get off and work your cock like a boss'. The victim made repeated requests for the offender to stop messaging them and despite this the offender continued to send numerous requests for explicit material from the victim, and also described the sexual activity he wished to perform with the victim, stating 'If you come to my house dayum wow you could shove it in my mouth'. The offender also sent pornographic images of males engaged in sexual activity to the victim and explained that he would act out the activity in the images with the victim. COUNT 3 Between 22 July 2013 and 30 September 2014 the offender communicated online using his iPhone with a person using a nominated identity. On 13 August 2013 the offender transmitted an image that contained child abuse material. The text accompanying the image from the offender read 'I want to see you like that'. The investigators classified that image as category 6 on the CETS scale. COUNT 4 AND ITEM 4 ON THE S 16BA SCHEDULE Between 29 August 2013 and 23 May 2014 the offender communicated online using his iPhone with a person using a nominated identity. During the communications the offender almost immediately requested a nude picture from the victim which the victim declined to provide. The offender continued to make numerous further requests which were repeatedly declined by the victim. The victim informed the offender that he was 12 years old and despite being told the age of the victim the offender continued to make numerous further requests for sexually explicit material from the victim. Throughout the communications the offender sent a number of pornographic images of males engaged in sexual activity to the victim and explained that he wished to act out the activity in the images with the victim. The offender stated to the victim 'I'd love to suck you off, you don't need to do anything back'." Offences in 2014 1. His Honour described the offences committed in 2014 (ROS6-7): "COUNT 5 Between 18 April 2014 and 19 April 2014 the offender communicated online using his iPhone with a person using a nominated number. On 18 April 2014 the offender transmitted an image containing child abuse material. Investigators classified the images category 6 on the CETS scale. COUNT 6 AND ITEM 5 ON THE S 16BA SCHEDULE Between 23 May 2014 and 5 May 2014 the offender communicated online using his iPhone with a person using a nominated identity. During the communications the offender told the victim that he was sexy and requested the victim send him a photo without a shirt on. The victim declined and the offender stated 'I'd love to suck your cock'. The victim repeatedly requested the offender stop messaging him however the offender relentlessly continued to message the victim and request sexually explicit images from him. The victim informed the offender that he was 10 years old and that he would report the matter to the police 'The police are coming to you btw because I have reported you for being a gay creep and asking kids for inappropriate pictures and I am only 10 years old'. The offender replied 'Baby boy the only one coming will be you'. The offender then continued to request nude and explicit images from the victim, the offender stated 'Or even just a full nude'. The offender explained to the victim that he wanted to engage in sexual activity with him. COUNT 7 Between 29 November 2014 and 30 November 2014 the offender communicated online using his iPhone with a person using a nominated identity. During the communications on 29 November 2014 the offender immediately requested a picture of the victim's 'dick'. The victim asked the offender's age and the offender replied that he was 22 years old, which was not true as the offender was 29 years old at the time. The victim then informed the offender that he was 16 years old, to which the offender replied 'Idc you're hot'. The offender continued to request a picture from the victim for a 'cum shot'. The victim sent an image of the penis to the offender. The offender responded 'you have a hot cock, show me you working it, I want to see you jacking and looking at your face while you do it'. The next day on 30 November 2014 the offender stated to the victim 'still waiting for that vid'." Offences in 2015 1. His Honour referred to the 2015 offences involving the 13-year old boy ("K") and the police operation after 23 July 2015 involving the use of an assumed male child (ROS 7-9): "COUNT 8 AND COUNT 9 In May 2015 New South Wales Police at Tuggerah Lakes LAC received information relating to the online activities of the offender. The information received related to the offender engaging in online communications with a 13 year old male child, [K]. The communications took place over social networking application and text messages. During the online communications the offender engaged in sexually explicit chat and sent several pornographic images of males engaging in sexual activity. The offender also requested naked images of the victim. The victim subsequently took a number of naked images of himself and sent them to the offender. As a result of this information investigators attached to the Child Exploitation Internet Unit commenced covert online investigations into the online activities of the offender using the online identity of the 13 year old male child. On 23 July 2015 investigators (sic) the offender using the user name [XXX] and the assumed male child engaged in online communications. The offender sent 42 messages to the assumed male child along with images of males engaged in sexual activity. The offender requested nude images from the assumed male child and explained that he wanted to act out the activity depicted in the pornographic images that he sent to the assumed male child. The offender also expressed his desire to meet with the assumed male child to engage in sexual activity. Throughout the communications the offender continued to request nude pictures of the assumed male child. The offender was provided with a mobile phone number to contact the assumed male child on. On 25 July 2015 a number of text messages were received from the offender using a nominated mobile phone number. On 27 July 2015 the offender communicated with the assumed male child online and again made numerous requests for nude images from the assumed male child. The offender was provided with the details of another social networking application to contact the assumed male child. On 4 August 2015 a number of messages were received from the offender on that social networking application in which he requested nude images of the assumed male child and described in detail what he wanted to do with the assumed male child, such as 'And I want to suck your dick and taste your arse. We could easily meet up too and I will make you come'. The offender was made aware of the assumed male child's age but the offender continued to request nude images of the assumed male child and would continue to describe the sexual acts he would like to perform on the assumed male child. The offender continued to talk about meeting the assumed male child for sexual activity stating 'It would be fun to suck your dick and taste your arse. I've been keen for so long, we should meet up and do it'. Over the course of the communications from July to August 2015 the offender sent 394 messages to the assumed male child. These messages sent by the offender included numerous requests for nude pictures, descriptions of the sexual activity the offender wanted to engage in with the assumed male child and expressions of the offender's desire to meet for sexual activity. The offender acknowledged the assumed male child's age on several occasions including 'Idc that you're thirteen, I think you're so hot and I want to suck it so bad'. On 3 September 2015 the offender continued to engage in online communications with the assumed male child. During this conversation the offender again expressed his desire to meet and engage in sexual activity. The offender again acknowledged the age of the assumed online identity stating 'I know you're thirteen but I would meet and do it. Like I don't just want nudes and that's it. I want to suck you'. During the course of the communications the offender used multiple user names." 1. The sentencing Judge referred to the Applicant's further offences in 2015 involving contact with other male children (ROS 9-14): "COUNT 10 AND ITEM 6 ON S 16BA SCHEDULE Between 2 April 2015 and 11 May 2015 the offender communicated online using his iPhone with a person using a nominated identity. During the communications the victim asked the offender his age. The offender replied 'Twenty two. You?' This was a lie as the offender was in fact 29 years old at the time. The victim replied 'Ha, ha, thirteen'. The offender requested the victim send a topless or nude photograph to which the victim replied 'No'. The offender stated 'I would love to see you nude for real'. 'I could suck your dick'. The offender asked if the victim would want to meet and suggested picking up the victim and taking the victim back to the offender's house. The victim declined the offers of the offender and stopped communicating with the offender shortly after. COUNT 11 Between 6 April 2015 and 7 April 2015 the offender communicated online using his iPhone with a person using a nominated identity. During the communications the offender suggested that he could meet the victim and stated 'I would suck your dick if you wanted'. The victim asked the offender his age. The offender replied that he was 'Twenty two', which was not true as the offender was twenty nine at the time. The offender asked the victim's age and the victim replied that he was 'sixteen'. The offender stated 'I'd still want to do it'. Later the offender stated 'show me your dick on here'. The victim sent an image of a penis to the offender. The offender then instructed the victim to 'pull your foreskin back and take a pic like that'. The victim sent another image of a penis to the offender. COUNT 12 Between 6 April 2015 and 13 May 2015 the offender communicated online using his iPhone with a person using a nominated identity. During the communications the offender told the victim he thought the victim was sexy and requested a topless photo from the victim. The offender then requested nude photos from the victim. The offender told the victim that he was twenty two years old, which was not true. The victim informed the offender that he was 10 years old. The offender described the sexual activity he wanted to engage in with the victim stating 'I want to suck your dick and taste your arse'. The offender continued to communicate with the victim and sent the victim pornographic images. The offender told the victim again that he wanted to see the victim naked and suggested that he pick up the victim and drive him places. The offender further stated to the victim 'I'd suck your little dick and balls and taste your little arse'. The offender asked the victim if he could do that to him if they met up. COUNT 13 Between 7 April 2015 and 18 May 2015 the offender communicated online with his iPhone with a person using a nominated identity. During the communications the offender asked the victim to send photos of himself, even just his face, to the offender. The victim asked the offender his age and the offender replied that he was twenty two, which was not true as the offender was 29 years old at the time. The victim informed the offender that he was 11 years old. The victim sent an image of his face to the offender and the offender replied 'You're cute'. The offender then went on to request further pictures from the victim in his underwear. The offender also sent a graphic image of two males engaged in sexual activity to the victim and stated 'I want to do this to you. x'. The offender also stated to the victim 'Can I suck yours?' and 'I want to suck your little dick and taste that little arse'. The offender then continued to engage the victim in highly sexualised conversation explaining the sexual activity that he would like to do with the victim such as 'I want to be the first one to suck your dick and taste your arse'. The offender went on to suggest that the victim stay home from school then he could attend the victim's house when his parents were not at home to engage in sexual activity with the victim. COUNT 14 Between 9 April 2015 and 11 April 2015 the offender communicated online using his iPhone with a person using a nominated identity. During the communications the offender told the victim that he was gorgeous and requested photographs from the victim. The offender told the victim that he was twenty two, which was not true as he was twenty nine at the time. The victim informed the offender that he was twelve, to which the offender commented 'That's cool, I like small boys'. The offender then went on to suggest that the two could meet up and the offender could 'suck your dick and taste your arse too'. The offender suggested that he could go to the victim's house when the victim's parents were not at home and they could engage in sexual activity. COUNTS 15 AND 16 Between 10 April 2015 and 8 May 2015 the offender communicated online using his iPhone with a person using a nominated identity. During the communications the offender sent an image of a young male child to the victim and asked if it was an image of the victim. The image depicted a male child clearly under the age of 18 years. The victim confirmed it was his photo. The offender then requested the victim send him another picture of himself stating 'So send me one of you nude for real'. The offender asked if the victim was nine and the victim replied 'I'm twelve'. The offender continued to repeatedly request nude images of the victim. The victim sent an image of a penis to the offender. The offender later sent a pornographic image of two males engaged in sexual activity to the victim and stated 'I want to do that to you'. The offender then went on to make several more requests for nude images of the victim and sent further pornographic images to the victim. The victim sent another image of a penis to the offender. The offender replied 'Yeah that's it, I want to suck that dick and balls'. The offender later stated 'I want to meet you and suck you for real'. COUNT 17 Between 18 April 2015 and 19 April 2015 the offender communicated online using his iPhone with a person using a nominated identity. During the first communication the offender told the victim that he is a 'heaps good dancer', before asking if the victim has ever danced in the nude. The victim replied 'what kind of question is that?' to which the offender replied 'a serious one 'cause you're hot and it would be cool to see your whole body moving'. The victim asked the offender his age and the offender replied 'twenty two', which was a lie as the offender was 29 years old. The victim informed the offender that he was 13 years old. The offender told the victim that it would be nice to see him to which the victim replied 'Yeah, nah'. The offender asked 'what if I sucked your dick after' to which the victim replied 'No'. The offender continued to make requests of the victim stating 'it'll be hot seeing that skinny body and little dick while you dance, x' and 'then maybe see it for real and suck it after'. COUNT 18 Between 20 April 2015 and 29 April 2015 the offender communicated online using his iPhone, with a person using a nominated identity. The victim informed the offender that he was 12 years old. The offender stated he was 22, which was not true as he was 29 years old at the time. During the communications the offender stated to the victim, 'You look heaps cute x' and 'Can you sent me a pic of you'. The victim responded, 'Get lost creep.' The offender stated, 'I'd like to meet you. You're gorgeous' and 'Would you want me to suck your dick'. The offender asked if the victim gets 'horny', continued to send sexualised messages to the victim describing in detail the sexual activity he would like to engage in with the victim, such as wanting to 'put my tongue deep in your arse'. The victim stopped replying to the offender, who eventually stopped messaging the victim. COUNT 19 Between 18 June 2015 and 17 July 2015 the offender communicated on line using his iPhone with a person using a nominated identity. During the communications the offender told the victim he was cute and requested a picture of the victim. The victim sent a photograph of his face. The offender requested a topless picture of the victim who responded, 'I'm just a kid though' and informed the offender he was 12 years old. The offender continued to request pictures from the victim before stating, 'Do you ever get horny' and 'Cause when I see your pic I want to kiss you and take your clothes off. TBH'. The offender went on to state, 'I want to kiss your body and suck you and taste you. Like suck your dick and taste your arse'. The offender then continued to describe what sexual activity he would like to engage in with the victim. The victim reminded the offender that he was 12, to which the offender replied, 'I don't mind'. The offender went on to suggest that he could attend the victim's house when the victim's parents were gone and engage in sexual activity. The offender further stated, 'I would like to suck your 12 yo dick and taste that 12 yo ass so please'." 1. His Honour outlined a number of the offences to be taken into account under s 16BA Crimes Act 1914 (Cth) (ROS 14-18): "ITEM 7 ON THE 16BA SCHEDULE Between 25 June 2015 and 29 June 2015 the offender communicated online using his iPhone with a person using a nominated identity. During the communications the offender told the victim he was cute. The victim informed the offender that he was 14 years old, to which the offender replied, 'I'd love to see you with no shirt' and 'I'd suck your dick too if you were keen'. The victim did not respond to this message. ITEMS 8 AND 9 ON THE S 16BA SCHEDULE Between 13 July 2015 and 20 July 2015 the offender communicated online using his iPhone with a person using a nominated identity. During the communications the offender told the victim he is 'So hot' and requested a picture of the victim without a shirt on, before stating, 'TBH I wish I could suck your dick'. The offender asked the victim, 'Do you do nudes' and went on to make a number of requests for nude pictures of the victim. The victim declined to send pictures as requested by the offender. The offender continued to make requests of the victim before sending a pornographic image of two males engaged in sexual activity, stating, 'I'd do that to your dick'. The victim informed the offender that he was 12 years old, to which the offender replied, 'Cool I like small boys' and 'I'd love to do it like that pic to you'. The offender continued to make further requests for nude images from the victim, stating, 'Send a full nude your hot IDC about your dick size. I'll just like your whole body TBH' and 'IDC that you have a small dick I still want to suck it'. The offender sent another pornographic image of two males engaged in sexual activity to the victim, stating, 'This is your little arse'. Throughout the communications the victim made numerous requests for the offender to stop messaging him. The offender ignored these requests to stop and constantly sent messages to the victim with requests for images and engaged in sexually explicit chat. ITEM 10 ON S 16BA SCHEDULE Between 9 August 2015 and 27 August 2015 the offender communicated online using his iPhone with a person using a nominated identity. During the communications the offender told the victim that he is 'hot', before stating, 'I want to see you nude and see some of that hard cock'. The victim informed the offender that he was 14, to which the offender replied, 'Okay that's cool. I still want to'. The offender went on to say, 'I want to see you full nude and hard'. The offender was again reminded by the victim that he was 14 years old. Following this exchange the offender went on to say, 'I want to suck your cock. I'm hard for you. Send me a nude'. The offender also continued describing in detail the sexual activity he wanted to engage in with the victim and asked the victim if he had 'ever been sucked before'. ITEM 11 ON S 16BA SCHEDULE Between 18 August 2015 and 7 September 2015 the offender communicated online using his iPhone with a person using a nominated identity. During the communications the offender told the victim he is 'cute' and asked the victim for a picture without a shirt on. The victim declined. During this the offender continued to make a number of requests for a picture from the victim. The victim informed the offender that he was 12 years old and sent a topless picture of himself to the offender. The offender stated, 'You look so good. I want to see all of you'. The victim declined. The offender then stated, 'Yeah show me your penis'. The offender later stated, 'You look hot and I wanna see your cock. Maybe a full nude so I can see your face too'. The victim continued to decline these requests. ITEM 12 ON S 16BA SCHEDULE Between 7 September 2015 and 2 October 2015 the offender communicated online using his iPhone with a person using a nominated identity. During the communications the offender told the victim he is 'cute' and asked for a picture of the victim. The victim informed the offender he was 12 years old, to which the offender responded, 'IDC I like small boys'. The victim told the offender to leave him alone several times before this and reminded the offender that he was 12. During this the offender stated to the victim, 'I want to see your hot small little body wearing nothing'. The victim continued to ask the offender to leave him alone and the offender continued to message the victim, stating, 'I want to see your body IDC that you have a small dick. I'd love to suck it'. ITEMS 13 AND 14 ON S 16BA SCHEDULE Between 13 October 2015 and 26 November 2015 the offender communicated online using his iPhone with a person using a nominated identity. During the communications the offender asked the victim if he sends nude pics and requested that the victim send him one, to which the victim declined to do. The offender then sent numerous sexualised messages to the victim, describing the sexual acts he would like to engage in with the victim, such as 'I'd still suck your dick' and 'I'd like to make you come'. The offender continued to send numerous sexually explicit messages to the victim, including requests for nude images and describing the sexual activity he wanted to engage in with the victim. The offender continued to communicate with the victim, stating, 'I want that 14 yo cock. I'm 22 BTW and I really I wanna do it'. The offender went on to acknowledge the victim's age several times and repeatedly engaged in highly sexualised chat and requesting nude images of the victim. The offender went on to say, 'You have a cute face too. I want to see you get off while I suck you. I have a strong desire to suck your dick'. Despite numerous requests by the victim to stop messaging him, the offender continued to send sexually explicit messages and requests to the victim. ITEM 15 ON S 16BA SCHEDULE Between 6 November 2015 and 23 November 2015 the offender communicated online using his iPhone with a person using a nominated identity. During the communications the victim immediately told the offender to stop messaging him. This request was ignored by the offender, who replied, 'I want to suck you'. The offender then stated that he thought the victim was 15. The victim continued to tell the offender to stop messaging numerous times. All of these requests were ignored by the offender, who continued to relentlessly message the victim and describe the sexual activity he wanted to engage in with the victim, such as 'I want to taste your dick'. The offender continued to message the victim with requests for images and with the offender describing the sexual activity he wanted to engage in with the victim, including suggesting that they meet to engage in that activity." 1. His Honour then moved to the s 474.27A offence concerning the 11-year old boy, ("T"), and the subsequent operation (which assumed the identity of that boy), which culminated in the arrest of the Applicant on 27 November 2015 (ROS18-19): "COUNT 20 In November 2015 New South Wales Police at Newcastle LAC received information relating to the offender communicating with an 11 year old male, [T], on social media. The offender was using a nominated username. As a result, investigators from the Child Exploitation Internet Unit assumed the online identity of the 11 year old male child. On 17 November 2015 investigators engaged in online communications with the offender. During this conversation the offender engaged in sexually based chat with the assumed male child. The offender made a number of requests for images from the assumed male child and expressed a desire to meet the child for sexual activity, stating, 'We could hang out and I'd like to suck your dick too'. On 18 November 2015 the investigators continued to engage in online communications with the offender, where the offender continued to request images from the assumed male child. The offender described the sexual activity he wished to perform on the male child, such as 'like licking all around your balls and sucking them'. Over the course of the communications the offender was informed of the age of the assumed male child and the offender acknowledged this. During communications with the assumed male child arrangements were made for the offender to meet with the assumed male child on 27 November 2015 at the Charlestown Square cinema for the purpose of engaging in sexual activity. However, the offender did not attend the meeting as planned. On 27 November 2015, after failing to meet up as planned, investigators attended the offender's residence where the offender was cautioned, placed under arrest and conveyed to Belmont Police Station. The offender declined to participate in a record of interview with police. Police subsequently executed a search warrant at the offender's premises, where a number of computers, mobile phones, SIM cards and electronic storage devices were seized. Upon locating the offender's mobile phone, social networking application messages from the assumed male child were seen on the phone." 1. His Honour summarised the offences under s 91H(2) Crimes Act 1900 (NSW) (ROS 19-20): "COUNT 21 The offender's Apple iPhone, which was seized during the search warrant, was subsequently examined by investigators. The examination of the iPhone located a number of images of child abuse material which were classified according to the CETS scale as follows: Category 1, 171 images. Category 2, 40 images. Category 3, 17 images. Category 4, 45 images. Category 5, 0 images. Category 6, 32 images. Total, 305 images. COUNT 22 An examination of the offender's Toshiba laptop computer, which was seized during the search warrant, was subsequently examined by investigators. The examination of the Toshiba laptop located a number of images and videos of child abuse material, which were classified according to the CETS scale as follows: Category 1, 5 images, 0 videos, 5 in total. Category 2, 3 images, 1 video, 4 in total. Category 3, 0 images, 3 videos, 3 in total. Category 4, 2 images, 17 videos, 19 in total. Category 5, 0 images, 1 video, 1 in total. Category 6, 0 images, 0 videos, 0 in total. Total, 10 images, 22 videos, 32 in total." The Applicant's Subjective Circumstances 1. The Applicant was born in July 1985 and was 33 years old at the time of sentence. He has no prior criminal history. 2. Tendered in the defence case on sentence were reports of Dr Rebecca Smith, forensic psychologist, dated 10 March 2018 and 29 June 2018 and a report of Dr Susan Pulman, forensic psychologist, dated 24 June 2018. In addition, a letter from the Applicant dated 3 July 2018 was tendered together with a letter dated 16 March 2018 from the Applicant's parents. 3. The Applicant did not give evidence at the sentencing hearing. 4. With respect to the Applicant's lack of prior convictions, his Honour said (ROS 26): "The offender's lack of any prior criminal record would ordinarily warrant significant leniency. However, prior good character is less significant in sentencing for offences of these kinds. Further, prior good character is less significant in sentencing for offences committed over an extended period of time. In this case, the offender's conduct spanned a period of approximately two and a half years." 1. The sentencing Judge addressed the Applicant's personal background (ROS 26-28): "The circumstances of the offender's upbringing were recounted to psychologists who assessed the offender. None of the reports in evidence discloses the offender experienced an upbringing involving significant disadvantage or dysfunction. The offender described his upbringing as 'all right' to one of the psychologists. The offender is the eldest of three children and the offender retains the support of his parents. The offender's educational history, as recounted to psychologists, was unremarkable. The offender completed Year 12 at a Christian college but repeated it at TAFE as he was disappointed with his results. The offender then commenced a bachelor degree in psychology before changing to business and commerce after two years, but then left university a little over a year later. The offender's employment history was also recounted to psychologists. The offender presently has an online business, selling health and beauty products, which he intends to expand by introducing new products, sourcing suppliers and trademarking his own brands. I note the offender's parents stated in a testimonial that the offender's internet access is limited to the family computer under their supervision. The psychologists' reports do not disclose the offender has had any significant relationship history but rather indicate that he was or is single and has no dependants." 1. The sentencing Judge referred in some detail to the psychological reports of Dr Smith and Dr Pulman. Dr Smith assessed the Applicant's cognitive function and estimated that it was within the average range. She considered that the Applicant did not suffer a mental illness or intellectual disability at the time of assessment or at the time of the offences. Dr Smith raised the possibility that the Applicant suffered autism spectrum disorder and recommended a referral to a clinical psychologist with specific expertise in that area. 2. As a result, Dr Pulman assessed the Applicant. She made no diagnosis of autism or autism spectrum disorder, but concluded that the Applicant possessed schizoid personality traits which likely contributed to the commission of the offences by reducing his ability to understand the emotional implications of his behaviour on others. 3. The sentencing Judge made findings favourable to the Applicant with respect to the psychological evidence (ROS 29): "In my view, Dr Pulman's expert opinion that the offender's mental condition contributed to his offending in the way I have addressed above warrants a conclusion that the offender bears a lesser degree of moral culpability for his commission of the offences. Further, Dr Pulman's expert opinion that the offender suffers severe depression warrants a conclusion that to that extent he is less suitable to use as a medium for conveying a message to others and the weight appropriate for general deterrence is lessened. Both Dr Smith and Dr Pulman in their expert opinions indicate the offender would be vulnerable in custody because of his mental condition and, accordingly, in my view, it is likely that the offender would suffer greater hardship in custody than other inmates because of his mental condition." 1. There was one area where the psychological evidence did not assist the Applicant (ROS 29): "Conversely, Dr Pulman's expert opinion that the offender has a reduced ability to understand the emotional implications of his behaviour on others in conjunction with other material, including the facts and circumstances of the offences themselves, together indicates the offender has limited appreciation of the consequences of his conduct. Accordingly, the offender's mental condition is a factor that indicates the protection of society is a matter warranting some weight in the determination of the appropriate sentences for these offences." 1. The sentencing Judge recounted the attendance by the Applicant at a fortnightly sex offender program with Dr Smith between April and June 2018. His Honour said with respect to the Applicant's prospects of rehabilitation (ROS 30): "In my view, having regard to the whole of the evidence regarding the subjective circumstances of the offender, his prospects of rehabilitation cannot be described as unqualifiedly positive, but nevertheless reasonable, subject to his participation in a sex offender treatment programme and his continuing engagement in psychological treatment." 1. The psychological reports noted the Applicant's denial of sexual interest in children (ROS 31): "Dr Smith noted the offender still had difficulty accepting responsibility for his offending behaviour. The offender denied comprehensively to Dr Smith that sexual interest in children for sexual gratification was even a 'vague' factor in his behaviour. The offender maintained he sent sexually explicit messages because they were the most effective method of provoking a response and that he found hostile responses enjoyable and conceptualised them as 'cartoonish'. The offender told Dr Pulman he felt guilty about what he had done and was remorseful for the harm he had caused. The offender attributed his behaviour to living in a 'fantasy life' and described not thinking of the victims as 'real people'. The whole of the evidence regarding the subjective circumstances of the offender indicates the offender has begun to develop some insight into the nature and consequences of his offending but that his level of insight remains compromised." 1. His Honour made a finding that the Applicant posed a moderate risk of reoffending (ROS 32): "In my view, the offender poses a moderate risk of re-offending but that risk may be reduced subject to the offender's participation in offence-specific rehabilitation programmes in custody and on release, and subject to his supervision in the community for an extended period upon his release." Other Findings by the Sentencing Judge 1. The sentencing Judge made specific findings concerning the objective seriousness of the various offences and categories of offences. Given the first and second grounds of appeal, it is appropriate to set out extracts from his Honour's findings. His Honour said generally in this respect (ROS 20): "The objective seriousness of each offence must be assessed separately to determine the appropriate sentence for each count. However, the facts and circumstances of the offences, viewed as a whole, disclose the nature and extent of the offending involved. The offences spanned a period of approximately two and a half years, from mid-2013 to late 2015, throughout which period the offender's conduct persisted. The offences involved significant deliberation and manipulation, as manifested in his use of multiple online identities and misrepresentation of his age to victims. Considerations in assessing the objective seriousness of the offences of use carriage service to transmit child pornography include the nature and content of the material, the age of the victim, the number of items and occasions on which material was transmitted and the period involved, and the offender's purpose in committing the offence." 1. His Honour turned to particular features of a number of the counts (ROS 20-22): "Counts 1, 2, 3 and 5 each involved transmission of Anime cartoons or comics or drawings depicting children in sexual poses or activity. The statement of facts does not disclose the material transmitted that is the subject of count 12, and I have assumed it also involved such material. Although no real child was abused in creation of this material, it was in each case transmitted to a real child or someone the offender believed to be a child, except perhaps counts 3 and 5 as the evidence does not clearly establish the victims of those offences made clear to the offender their ages. The victim of each offence, apart from counts 3 and 5, made clear their ages: 12 years in respect of count 1; 14 years in respect of count 2; 10 years in respect of count 12. In respect of count 1, the offender engaged in the conduct despite the victim requesting that he desist. Counts 2, 3 and 5 each involved one instance of transmission of such material, whereas count 1 involved two instances of transmission of two items. The context of each offence makes clear the offender's purpose in transmitting the material was to facilitate other conduct with the victim, including, in particular, obtaining child abuse material from him. Although the offender requested to meet the victim of count 12 to engage in sexual activity, the evidence does not clearly establish that the offender actually intended or attempted to do so. In my view, counts 2, 3, 5 and 12 are towards the lower end of the range of objective seriousness for such offences, while count 1 is between the lower and the middle range for such offences. Considerations in assessing the objective seriousness of the offences of use carriage service to solicit child pornography include the nature and content of the material involved, the age of the victim, the number of items and occasions on which the material was solicited, the period involved, and the offender's purpose in committing the offence. The material the offender solicited comprised a nude image of the victim of count 4, nude and explicit images of the victim of count 6, explicit images or videos of the victim of count 7, nude images of the victims of counts 8, 10 and 15, and explicit images of the victim of count 11. The offender succeeded in obtaining what he solicited from the victim of count 8. The victim of each offence made clear to the offender his age: 12 years in respect of counts 4 and 15; 10 years in respect of count 6; 16 years in respect of count 7; 13 years in respect of counts 8 and 10; and 16 years in respect of count 11. It is of particular importance in respect of count 8 that the victim of the offence was an actual child. The offender persisted in the conduct, despite the victim of count 6 repeatedly attempting to deter him. The offender persisted in the conduct in count 7. The offender persisted in the conduct in count 8 to the extent that it constituted numerous of the 394 messages sent to the victim over a period of approximately two months. The context of each offence makes clear the offender's purpose in soliciting the material was to obtain child pornography depicting the child. The evidence does not establish that the offender intended to use it for any purpose other than his own gratification. Although in respect of each of counts 6, 8, 10 and 15 the offender told the victim he wanted to meet to engage in sexual activity, the evidence does not clearly establish that he actually intended or attempted to do so." 1. His Honour made findings concerning the objective seriousness of particular offences (ROS 22): "In my view, counts 4, 10, 11 and 15 are between the bottom and the middle of the range. Counts 6 and 7 are in the middle of the range and count 8 is significantly above the mid-range of objective seriousness for offences of this kind." 1. His Honour said with respect to the s 474.27A(1) offences (ROS 22-24): "Considerations in assessing the objective seriousness of the offences of use carriage service to send indecent communications to person under 16 years include the nature and content of the communication, the age of the victim, the number of items and occasions on which material was sent, the period involved and the offender's purpose in committing the offence. In counts 9, 13, 17, 18, 19 and 20 the communications comprised the offender's expressions of his wish to engage in explicit sexual activity with the victim. In counts 14 and 16 the communications comprised an expression of the offender's wish to engage in explicit sexual activity with the victim, as depicted in pornography that the offender also sent to the victim. The victim of each offence made clear his age to the offender: 11 years in respect of count 13; 12 years in respect of counts 14 and 16; 13 years in respect of counts 9 and 17; 12 years in respect of counts 18 and 19; 11 years in respect of count 20. The offender in fact acknowledged he was aware of the age of some victims, for example the victim of count 9. In respect of count 20, the fact that the victim of the offence was an actual child is of particular importance. Similarly in respect of count 9, the fact that the victim of the offence was an actual child is of particular importance. The offender persisted in the conduct in count 9 to the extent that numerous of the 394 messages sent over a period of approximately two months involved such conduct. The offender sent multiple communications in counts 13, 14 and 16. The offender sent communications on two occasions in count 20. The statement of facts does not clearly establish the number of indecent communications involved in counts 17, 18 and 19. The context of each offence makes clear the offender's purpose in sending the communication was, at the least, his own gratification. However, the evidence does not establish clearly that it was for any other purpose. In counts 9, 13, 14, 16, 17, 18 and 19 the offender told the victim he wanted to meet to engage in sexual activity but the evidence does not establish that the offender actually intended or attempted to do so. In count 20 the offender arranged to meet the assumed victim to engage in sexual activity but the offender failed to attend. The evidence is insufficient to establish to the requisite degree that the offender actually intended or attempted to meet the victim to engage in sexual activity." 1. His Honour then made findings concerning the objective seriousness of several counts (ROS 24): "In my view, counts 17, 18 and 19 are toward the lower end of the range of objective seriousness for such offences. Counts 13, 14 and 16 are between the lower and the middle range. Count 20 is in the middle of the range. Count 9 is significantly above the middle of the range." 1. His Honour turned to the s 91H(2) offences in Counts 21 and 22 (ROS 24-25): "Considerations in assessing the objective seriousness of the offences of possess child abuse material include the nature and content of the material, the age of the child or children depicted, the gravity of sexual activity depicted, the number of children involved, the number of items possessed, the purpose of possession and the period over which it was possessed. The material the subject of each offence is classified in the statement of facts. In respect of count 21, the material located on the offender's iPhone, there were 305 images, in total including 171 images of children not engaged in sexual activity but in sexual poses, or nude; 40 images of children engaged in non-penetrative sexual activity without adults; 17 images of children engaged in non-penetrative sexual activity with adults; 45 images of children engaged in penetrative sexual activity with adults or other children; and 32 images of Anime cartoons or comics or drawings depicting children in sexual poses or activity. In respect of count 22, the material located on the offender's laptop, there were 32 images or videos in total, including 5 of children not engaged in sexual activity but in sexual poses or nude; 4 images of children engaged in non-penetrative sexual activity without adults; 3 images of children engaged in non-penetrative sexual activity with adults; 19 images of children engaged in penetrative sexual activity with adults or other children; and 5 images depicting sadism, bestiality, humiliation or other child abuse. The quantity of the material involved in each count is not great relative to other offences of this kind and, in particular, the quantity involved in count 22 is relatively low. Nevertheless, each count relates to the possession of material, including some of a grave nature. The representative sample admitted in evidence in these proceedings demonstrates the awful abuse and exploitation of children that such material involves. The facts and circumstances of the offences indicate the offender was in possession for the purposes of his own gratification. The evidence does not indicate the offender was in possession for sale or distribution to other consumers of such material. However, the offender did transmit some material to victims of other offences. The evidence does not clearly establish the offender possessed the material at any time prior to the date of seizure. However, the offender's transmission of some such material to victims of other offences indicates he possessed at least some material of this kind prior to the date of seizure and, accordingly, the offender's possession cannot be viewed as an isolated event." 1. A finding was made concerning the objective seriousness of the s 91H(2) offences (ROS 25): "In my view, neither offence is at the bottom of the range. Count 22 is toward the lower range. Count 21 is between the lower and middle of the range of objective seriousness for offences of this kind." 1. His Honour noted that two identified actual child victims, K and T, provided victim impact statements to the Court. His Honour said (ROS 26): "Each described the profound effect the offender's conduct had upon him. Each confirmed that the conduct of the offender exploiting the victims' youth and vulnerability had a substantial effect upon them, as one could only reasonably expect." 1. The sentencing Judge accepted that the Applicant "manifested a willingness to facilitate the administration of justice and also had significant utilitarian value" and allowed a 25% discount in this respect. 2. His Honour had regard to the operation of bail conditions which had been in place for a period together with a short period of presentence custody. 3. The sentencing Judge turned to issues of accumulation, concurrency and totality (ROS 33-34): "The appropriate term in respect of each count has been determined before considering the questions of accumulation and/or concurrency, taking into account the principle of totality. In considering the extent of accumulation warranted to derive a sentence that reflects the totality of the criminality involved in all the offences, the actual and potential impact of the offending against the multiple victims, the multiplicity of discrete acts, and the extended duration of the offending must all be recognised. Partial accumulation of all the sentences would result in an overall sentence with a crushing effect on the offender's motivation toward rehabilitation. The overall term of the sentence has been determined with a view to avoiding such an effect. In order to give effect to the totality principle, concurrent sentences will be imposed for groups of offences and there will be partial accumulation as between those groups." 1. His Honour explained the rationale for the structure of the sentences and the non-parole period to be set, noting that "… supervision of the offender on parole over a lengthy period to ensure ongoing psychological intervention and assist in reintegration into the community after serving the non-parole period of the sentence would promote the offender's prospects of rehabilitation and mitigate against the risk of re-offending. The effective non-parole period of the overall sentence has been determined with these competing factors in mind". 2. His Honour then imposed the sentences identified at [3]-[4] above. Ground 1 - Sentences Imposed on Counts 21 and 22 were Manifestly Excessive Submissions 1. Mr Wendler, counsel for the Applicant, submitted that the concurrent fixed-term sentences for the s 91H(2) offences revealed error, having regard to sentencing principles in decisions such as Minehan v R (2010) 201 A Crim R 243; [2010] NSWCCA 140. Counsel submitted that the child abuse material possessed by the Applicant for these offences involved proportionately less serious images by application of the CETS scale. 2. Having regard to the number and nature of the material contained in Counts 21 and 22, and having regard to relevant factors identified in Minehan v R informing the objective criminality of those offences, it was submitted that fixed-term sentences of imprisonment for two years (Count 21) and one year and six months (Count 22) were manifestly excessive, with this adverse consequence infecting the overall total effective sentence. 3. The Crown submitted that the findings made by the sentencing Judge with respect to the objective seriousness of Counts 21 and 22 were open in the circumstances of the case and that the fixed-term sentences of imprisonment imposed for each of these offences was open to the sentencing Judge, together with the determination reached concerning partial accumulation of the sentences for these offences. Decision 1. There is an element of artificiality in challenging fixed-term sentences of imprisonment for two out of 22 offences, which formed part of a series of cascading sentences after partial accumulation and the totality principle had been brought into the equation: R v Thalari (2009) 75 NSWLR 307 at 320; [2009] NSWCCA 170 at [82]. That said, it is open to the Applicant to seek to challenge the sentences fixed for two discrete offences out of a much larger number. 2. It is to be kept in mind that the maximum penalty for an offence under s 91H(2) Crimes Act 1900 (NSW) is 10 years' imprisonment. 3. His Honour referred to the offences in Counts 21 and 22 (at [19] above) and made findings concerning the objective seriousness of these offences (at [37]-[38] above). His Honour found that Count 21 was "between the lower and middle end of the range of the objective seriousness for offences of this kind" and Count 22 was "towards the lower range". These findings were understandable given the number and nature of the child abuse material. In reaching these findings, his Honour had regard to the sentencing principles in Minehan v R. 4. The Applicant's complaint concerning Count 21 pointed to the number of CETS scale Category 1 items for that offence. The classification of material under the CETS scale is informative, but should not be misunderstood. In R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174, this Court said at [77]: "The classification of material in accordance with the CETS scale assists the process of assessment of the objective seriousness of an offence. Although Categories 1 to 5 on the CETS scale involve escalating gravity of the conduct depicted in the images, it should not be assumed that Category 1 material is mild in content. Despite being the lowest classification level, Category 1 material itself is capable of possessing significant gravity. In Zarb, Neave and Kyrou JJA observed at [30], after viewing images: 'Although level 1 covers images which are not as depraved and abusive as the images allocated to higher levels, some of the images we viewed involved dreadful examples of the abuse of the child victims, who were arranged in sexualised poses displaying their genitalia. The images at the higher end of the CETS Scale depicted horrifying degradation and exploitation of young children'." 1. A claim of manifest excess requires the Applicant to demonstrate that the sentences imposed for Counts 21 and 22 were unreasonable or plainly unjust. The careful reasons of the sentencing Judge explained how he came to the sentences on those Counts. The sentences for those offences were clearly open. 2. It has not been demonstrated that the sentences imposed for Counts 21 and 22 lay outside the range of sentences reasonably available for offences of this type. The Applicant has failed to demonstrate that the sentences imposed for Counts 21 and 22 were manifestly excessive. 3. I would reject the first ground of appeal. Ground 2 - Sentences Imposed on Counts 11, 12, 15, 19 and 20 were Manifestly Excessive Submissions 1. In written submissions in support of this ground, counsel for the Applicant grouped various offences under headings and made broad submissions concerning the objective criminality of the offences contained in those groups. Mr Wendler grouped the offences contained in Counts 11, 12, 15, 19 and 20, where a sentence of imprisonment for two years was imposed on each matter. He submitted that these sentences were manifestly excessive having regard to sentences imposed on other matters, being Counts 13 and 14. He submitted that the objective gravity of those offences, and Counts 17 and 18 where imprisonment for one year was imposed on each, lay at a similar level so that there was error with respect to the sentences on Counts 11, 12, 15, 19 and 20. 2. The Crown referred to the particular findings made by the sentencing Judge concerning the counts challenged in this ground and submitted that each individual sentence imposed on those counts was open to the sentencing Judge, so that no error had been demonstrated as asserted in this ground of appeal. Decision 1. Once again, there is an element of artificiality attaching to this ground of appeal (see [48] above). 2. There are some fundamental difficulties with the Applicant's submission in support of this ground. Each of the offences contained in Counts 11, 12 and 15 was punishable by a maximum penalty of 15 years' imprisonment. The offences contained in Counts 19 and 20 were punishable by a maximum penalty of seven years' imprisonment. 3. Each of the offences which the Applicant seeks to use as points of comparison (Counts 13, 14, 17 and 18) were punishable by a maximum penalty of seven years' imprisonment. Accordingly, there is an immediate and obvious difference between the two groups of offences which the Applicant seeks to compare in support of this ground. 4. Further, the careful reasons of the sentencing Judge explain how he made an assessment of objective seriousness with respect to the offences and then moved to determine individual sentences (see [33]-[36] above). Of course, it was then necessary (as his Honour well recognised) to consider issues of concurrency, accumulation and totality before reaching a total effective sentence. 5. It is also necessary to keep in mind that the sentences imposed on Counts 19 and 20 took into account as well the additional criminality involved in several of the offences which were subject to the schedule under s 16BA Crimes Act 1914 (Cth). When sentencing the Applicant on Count 19, his Honour took into account under s 16BA the additional offences identified at Items 7, 8, 9, 10, 11, 12, 13 and 14 of that schedule. In sentencing the Applicant on Count 20, his Honour took into account the additional offence at Item 15 of the s 16BA schedule. In sentencing for the primary offences, his Honour had regard to the additional features under s 16BA, giving greater weight to the need for personal deterrence and retribution: R v Lamella [2014] NSWCCA 122 at [48]. 6. Examination of the findings made by the sentencing Judge concerning the five sentences grouped for the purpose of this ground of appeal does not support a claim of error, let alone manifest excess. Once again, his Honour made careful findings referable to the offences and their objective seriousness and determined sentences for each offence which were clearly open in the circumstances of the case. 7. Ground 2 should be rejected. Ground 3 - Total Effective Sentence was Manifestly Excessive Submissions 1. In support of this ground, Mr Wendler submitted that an important aspect on sentence in this case concerned the Applicant's mental health issues as identified in the reports of Dr Smith and Dr Pulman. Whilst acknowledging that the sentencing Judge had made favourable findings on this issue for the purpose of sentence, it was submitted that this aspect assisted the Applicant on his claim that the overall sentence was manifestly excessive. 2. Emphasis was placed on other subjective features of the case, including the bail conditions to which the Applicant had been subject. Mr Wendler submitted that the overall sentence was manifestly excessive in all the circumstances of the case. 3. The Crown submitted that the individual sentences and the overall sentence were open to the sentencing Judge. The Crown emphasised that the offending had occurred over a period of two-and-a-half years and involved multiple offences and actual victims. 4. The Crown submitted that the total effective sentence arrived at in this case could be supported by decisions of this Court in Miao v R [2017] NSWCCA 89, Lyons v R [2017] NSWCCA 204, Hong v R [2017] NSWCCA 238 and Peters v R [2018] NSWCCA 126 and of the Victorian Court of Appeal in Director of Public Prosecutions (Cth) v Ramos [2018] VSCA 290 and McNiece v R [2019] VSCA 78. 5. The Crown submitted that it had not been demonstrated that the total effective sentence was manifestly excessive. Decision 1. In Obeid v R (2017) 96 NSWLR 155 at 241; [2017] NSWCCA 221, this Court said at [443]: "When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. * Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. * Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. * It is not to the point that this Court might have exercised the sentencing discretion differently. * There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. * It is for the applicant to establish that the sentence was unreasonable or plainly unjust." 1. The Applicant stood to be sentenced for 22 offences, with 15 further offences to be taken into account on sentence on a number of the primary counts. The Applicant's offending occurred over a period of two-and-a-half years from mid-2013 to late 2015. As the sentencing Judge found, the Applicant's offences involved significant deliberation and manipulation, including his use of multiple online identities and misrepresentation of his own age to victims. 2. The Applicant was a very active and persistent offender who did not confine his interest in child pornography to examination of images. Rather, the Applicant contacted persons whom he understood to be young males and engaged them in indecent communications despite efforts by many of them to have him desist from further contact. 3. This was not a sentencing case confined to offences of accessing and possessing child abuse material or child pornography material. Cases of that type, of course, are serious in themselves: R v Porte; R v De Leeuw [2015] NSWCCA 183 and Director of Public Prosecutions (Cth) v Garside (2016) 50 VR 800; [2016] VSCA 74. Although there are no direct victims where an offender has accessed or possessed child abuse material or child pornography material, they are not victimless crimes. As this Court said in R v De Leeuw at [145]: "It should be kept in mind that these are not victimless crimes: R v Porte at [68], [70]. Not only are the children involved exploited and degraded by the events depicted in the images. As they grow older, their shame and distress is likely to continue with the knowledge that the material may remain in circulation: R v Porte at [69]." 1. These observations are pertinent to sentence for Counts 21 and 22. 2. Additionally, in this case, the Applicant interacted persistently with young males. He communicated with 26 victims who were, or whom he believed to be, male children. He engaged in highly sexualised chats with the victims and transmitted or solicited child pornography images to or from each of them. 3. Unusually in this class of case, two of the identified victims (boys aged 11 and 13 years) made victim impact statements which the Court took into account for the purpose of ss 16A(2)(ea), 16AAA and 16AB Crimes Act 1914 (Cth). One of the victims explained in his victim impact statement that he felt as though he was being "stalked" by the Applicant and had received psychological counselling. Each victim recounted his ongoing nervousness at being in public places without a parent being present. The Applicant's offences had adverse effects upon these young victims whom he exploited by his criminal communications with each of them. 4. As the sentencing Judge made clear, a number of the offences involved other male children whom the Applicant contacted on more than one occasion, despite being told to desist. These included: 1. in Count 1, a 12-year old boy who told the Applicant to stop making contact with him, but the Applicant persisted; 2. in Count 2, a 14-year old boy who told the Applicant to desist, but he continued to contact the boy; 3. in Count 4, a 12-year old boy told the Applicant to desist, but the Applicant continued with his contact; 4. in Count 6, a 10-year old boy told the Applicant to cease contact, but the Applicant persisted; 5. Count 18 involved the Applicant's contact with a 12-year old boy who responded "get lost creep", but the Applicant nevertheless persisted with his contact; 6. Count 19 involved contact by the Applicant with a 12-year old boy who replied "I'm just a kid though", but the Applicant persisted with his contact. 1. Counts 7, 8, 9, 11, 13, 15 and 16 involved male children who sent photographs of themselves to the Applicant after being prevailed upon by him to do so. This is a pernicious feature of the offences. 2. Counts 21 and 22 involve the Applicant's possession of child abuse material giving rise to the offences under s 91H(2) Crimes Act 1900 (NSW). The sentencing Judge examined sample images drawn from the material possessed by the Applicant. For the purpose of determining this appeal, it is not necessary for this Court to view the material. The description of the material by reference to the CETS scale, read in conjunction with the findings of the sentencing Judge, is sufficient for this Court to discharge its appellate functions. 3. These were s 91H(2) offences of some gravity. They formed part of an overall pattern of both active and passive offending by the Applicant with respect to child pornography, child abuse material and male children. 4. It was emphasised in submissions for the Applicant that he did not make actual attempts to physically meet any of the children whom he contacted. The Applicant did not turn up at a planned meeting with the assumed 11-year old child (see [10] and [18] above). The Applicant's letter to the sentencing court asserted that he was committing these acts "out of boredom" and that he "thought it was humorous" with no intent by him to follow through and physically contact any of the victims. The psychological reports addressed this and other issues in the process of risk assessment. The sentencing Judge took into account this aspect in determining sentence (see [30] above). The Applicant maintained to Dr Smith that he had no sexual interest in male children. This claim stands in stark contrast with his repeated pattern of highly sexualised messaging to male children. His Honour expressed understandable caution about the Applicant's need for treatment and counselling given his limited insight into his offending. 5. Of course, if the Applicant had made direct physical contact with any of the children, then this may have given rise to other and more serious offences as well. That did not occur in this case. 6. The sentencing Judge had regard to the psychological evidence and made findings which favoured the Applicant in a number of respects which were not challenged in this Court. His Honour had regard to the operation of bail conditions to which the Applicant had been subject (see [41] above). 7. Offences involving sexual predatory conduct towards children have general deterrence as a primary sentencing consideration: R v De Leeuw at [72]; Milliner v R [2019] NSWCCA 127 at [76]. This was an important feature on sentence for these offences, with his Honour having regard to the psychological evidence in determining the weight to be given to general deterrence in this case. 8. An examination of sentencing decisions of this Court and the Victorian Court of Appeal, as referred to by the Crown (see [67] above), does not support the Applicant's claim of manifest excess in this case. 9. The total effective sentence imposed upon the Applicant followed the delivery of careful and balanced findings by the sentencing Judge. So much is clear from the substantial extracts from the sentencing remarks which appear earlier in this judgment. 10. In my view, the total effective sentence was well within the exercise of reasonable sentencing discretion in all the circumstances of this case. The Applicant has failed to demonstrate that the total effective sentence was manifestly excessive. 11. I would reject the third ground of appeal. Conclusion 1. The Applicant has not made good any of his grounds of appeal. 2. I propose the following orders: 1. grant leave to appeal against sentence; 2. appeal against sentence dismissed. 1. PRICE J: I agree with Johnson 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: 26 August 2019