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Court of Criminal Appeal 2 June 2011

Melham v Regina

[2011] NSWCCA 121

Sexual offences
CRIMINAL LAW SENTENCING CHILD PORNOGRAPHY COMMONWEALTH AND STATE OFFENCES WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Melham v Regina [2011] NSWCCA 121
Court: Court of Criminal Appeal, NSW
Date: 2 June 2011
Judge(s): Macfarlan JA, Johnson J, Garling J (Garling J writing)

Background

The appellant pleaded guilty in the District Court to two offences: possession of child pornography under the Crimes Act 1900 (NSW) and using a carriage service to access child pornography under the Criminal Code Act 1995 (Cth). Both offences carried a maximum penalty of 10 years' imprisonment. The charges arose after the Australian Federal Police identified the appellant as sharing child pornography files via peer-to-peer software, and executed a search warrant at his home in May 2009.

Officers seized the appellant's computer equipment and found over 46,000 files classified as child pornography, including images and multimedia files depicting a range of conduct from sexualised posing through to penetrative sexual activity involving children and adults. The appellant admitted he had been downloading and storing the material for approximately a decade, and that he was the sole user of the relevant computer. He cooperated with police throughout.

Bennett DCJ sentenced the appellant to 3 years and 9 months' imprisonment for the State offence, with a 3-year non-parole period, and a concurrent sentence of 3 years and 9 months for the Commonwealth offence with a 2 years and 6 months non-parole period, staggered by 6 months. The appellant sought leave to appeal, arguing errors in the sentencing approach and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred in finding that the appellant's mental illness was not a material cause of the offending conduct
  • Whether any errors in applying aggravating factors affected the ultimate sentence
  • Whether the sentences imposed were manifestly excessive having regard to the objective and subjective features of the offending

Decision

On the mental illness question, the Court examined submissions that the appellant suffered from an anxiety disorder and compulsive collecting behaviour, with expert evidence from a forensic psychiatrist and a clinical psychologist. The Court accepted that the sentencing judge was required to consider whether the mental illness was a material cause of the offending, following principles drawn from cases including R v Verdins [2007] VSCA 102 and R v Engert (1995) 84 A Crim R 67. The Court found no error in the sentencing judge's approach to this issue: the evidence supported the conclusion that the mental illness was not established as a material cause of the offending to any significant degree, and the sentencing judge was entitled to reach that view on the expert material before him.

On the aggravating factors ground, the Court noted that even if some error in characterising or weighing individual aggravating features could be identified, the overall sentence remained within the proper range. The objective circumstances were substantial: a very large volume of material, a significant proportion depicting serious abuse, an estimated 1,000 or more individual children depicted, and a period of offending spanning roughly a decade.

On manifest excess, the Court acknowledged that the sentences sat at the high end of the range for comparable offences, but declined to find they fell outside the permissible exercise of the sentencing judge's discretion. The appellant's strong subjective case, including his lack of prior convictions, good character in other respects, family circumstances, and community involvement, was weighed against the serious objective criminality. The Court was not persuaded the sentence was unreasonable or plainly unjust within the meaning of s 6(3) of the Criminal Appeal Act 1912.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court must assess whether an offender's mental illness was a material cause of the offending before it can reduce the weight given to general deterrence; where expert evidence does not establish that nexus, no such reduction is warranted.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentence falling at the high end of the range for comparable offences is not, without more, manifestly excessive. The critical question is whether the sentence falls within the range of discretion properly open to the judge.
  • Aggravating features including the volume of material, the severity of its content, the large number of children depicted, and the extended duration of offending were all treated as relevant to placing the conduct in the mid-range of objective seriousness.
  • Strong subjective features, including absence of prior convictions and good community character, do not automatically displace sentences that reflect the gravity of the objective offending, particularly where multiple purposes of sentencing are engaged.
  • Under s 6(3) of the Criminal Appeal Act 1912, an appellant must demonstrate the sentence was "unreasonable or plainly unjust" or that a lesser sentence is warranted in law; the Court found the appellant had not met that threshold on any of the grounds advanced.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 91H(2)
- Criminal Code Act 1995 (Cth), s 474.19(1)(a)(i)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1914 (Cth)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Markarian v The Queen (2005) 228 CLR 357
- Dinsdale v The Queen (2000) 202 CLR 321
- R v Verdins [2007] VSCA 102
- R v Engert (1995) 84 A Crim R 67
- R v Poynder [2007] NSWCCA 157
- Hayek v R [2010] NSWCCA 139
- Leach v The Queen [2008] NSWCCA 73
- Stewart v R [2009] NSWCCA 152
- Vuni v R [2006] NSWCCA 171
- R v Baker [2000] NSWCCA 85
- R v Hemsley [2004] NSWCCA 228
- R v Israil [2002] NSWCCA 255