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Court of Criminal Appeal 21 December 2015

O’Sullivan v R

[2015] NSWCCA 329

Sexual offencesPublic order & justice offences
CRIMINAL LAW SENTENCE APPEAL ADDITIONAL CRIMINAL OFFENCES POSSESSION OF CHILD ABUSE MATERIAL SERIOUSNESS EXTENT OF INDICATED ACCUMULATION

Citation: O'Sullivan v R [2015] NSWCCA 329
Court: Court of Criminal Appeal
Date: 21 December 2015
Judge(s): Gleeson JA at [1]; Adams J at [2]; Fagan J at [47]

Background

The appellant was a man in his late sixties with an extensive criminal history of sexual offending against children spanning approximately four decades. In 2009, the Supreme Court imposed a five-year extended supervision order on him under the then-applicable serious sex offenders legislation, attaching conditions including requirements to provide internet user details to his supervisor and to avoid unsupervised contact with children under 16.

In September 2012, police discovered that the appellant had been possessing child abuse material stored across three separate devices: a laptop, a DVD, and a USB flash drive. The material ranged from category one to category five on the Child Exploitation Tracking System scale, including videos of penetrative sexual activity involving young children, images of bound children, and depictions of sadistic conduct. He was charged with three counts of possessing child abuse material and three counts of breaching conditions of the supervision order.

The appellant pleaded guilty to all six charges in the District Court and was sentenced to an aggregate term of 8 years and 3 months imprisonment with a non-parole period of 6 years and 3 months. He sought leave to appeal that sentence to the Court of Criminal Appeal.

Legal Issues

  • Whether the sentencing judge erred in treating the appellant's failure to take anti-libidinal medication as an adverse factor going to contrition and rehabilitation prospects
  • Whether the sentencing judge engaged in double counting by treating the existence of the extended supervision order as an aggravating circumstance in relation to both the possession offences and the breach offences
  • Whether the sentencing judge erred in characterising the objective seriousness of all three possession offences as "very serious" or "very high"
  • Whether the aggregate sentence of 8 years and 3 months, and the extent of accumulation of indicative sentences, was manifestly excessive and failed to give proper effect to the totality principle

Decision

Ground 1: Anti-libidinal medication and sentencing error

Adams J found that the sentencing judge erred in placing the appellant's failure to take anti-libidinal medication on the scales against him as going to his attitude to offending or his prospects for rehabilitation (at [29], [45]). However, the Court found this error did not affect the outcome. The 2008 to 2009 recommendations for such medication were based on a 40-year pattern of persistent sexual offending and remained applicable at the time of sentencing, given that the very offences to which the appellant had pleaded guilty demonstrated an ongoing inability to control his deviant sexual preoccupation (at [53]-[54]). The Court concluded independently that the appellant had not demonstrated any genuine insight into his offending and that his prospects of rehabilitation were extremely doubtful (at [45]).

Fagan J took a somewhat different view on Ground 1, finding no demonstrated error in the sentencing judge's treatment of the medication evidence. His Honour concluded that her Honour was entitled to find that the professional recommendations for anti-libidinal medication remained current and soundly based, that the appellant was not taking such medication, and that there was accordingly a real likelihood of reoffending and no basis for confidence in rehabilitation (at [56]). Fagan J also rejected the sub-arguments that her Honour had impermissibly linked the medication issue to remorse findings, that she had mistakenly expected remorse concerning possession offences to appear in pre-offence reports, or that she had overlooked the 2009 Supreme Court finding that the appellant was then taking some medication (at [59], [61], [62]).

Ground 2: Double counting and the extended supervision order

Adams J and Fagan J both rejected the argument that the sentencing judge had treated the existence of the extended supervision order as an aggravating feature of the breach offences themselves, which would have been an error (at [33]). A fair reading of the sentencing remarks showed that the reference to "these offences" was directed at the possession offences under section 91H(2) of the Crimes Act 1900, not at the breach charges. The next paragraph of the sentencing remarks went on to assess objective seriousness by reference only to the possession offences (at [66]-[67]).

Ground 3: Characterisation of objective seriousness

The Court rejected the submission that the sentencing judge erred in describing all three possession offences as "very serious." The primary judge had viewed all the images herself and was plainly correct to describe the moral culpability of the appellant as extremely high (at [43]). Variations in the degree of gravity between the three offences were appropriately reflected in the indicative sentences, with the laptop offence attracting an indicative two years compared to four years for each of the other two media (at [42], [69]). The use of the same broad descriptor "very serious" across all three did not constitute error and did not risk double counting (at [69]-[70]).

Grounds 4 and 5: Manifest excess and totality

The Court found that each indicative sentence was fully justified by relevant sentencing principles and that the aggregate sentence did not fall outside the appropriate range (at [44]). The 25 per cent utilitarian discount for early guilty pleas was accepted as having carried through to the aggregate. The partial accumulation of the other five charges, resulting in a non-parole period of 6 years and 3 months with a balance term of 2 years, did not bespeak appealable error. Adams J noted that even setting aside the error on the medication issue, he would have imposed no lesser sentences and no lesser aggregate than that under appeal (at [45]).

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing error concerning one specific factor (the significance of refusal of anti-libidinal medication) will not lead to a lesser sentence being imposed where the court, independently reviewing all relevant material, reaches the same conclusion about the appellant's culpability and rehabilitation prospects (at [45]).

  • Where three charges under the same provision arise from possession of child abuse material on different storage media, it is not an error to describe all three offences in general terms as "very serious" notwithstanding that they vary in degree, provided the differences in gravity are reflected in the indicative sentences imposed (at [69]).

  • A sentencing judge does not engage in double counting by treating the existence of an extended supervision order as an aggravating feature of substantive criminal offences committed while subject to that order, so long as the order's existence is not simultaneously treated as aggravating the separate offences of breaching the order itself (at [66]-[67]).

  • Persistent unwillingness to take anti-libidinal medication, set against a 40-year history of sexual offending with no evidence of changed behaviour, can properly inform a sentencing court's assessment that there is a real likelihood of future reoffending and no basis for confidence in rehabilitation (at [53]-[56]).

  • Professional recommendations for anti-libidinal treatment made some years before sentencing were not treated as "out of date" where the offender's subsequent conduct demonstrated that the entrenched pattern of behaviour those recommendations addressed had not changed (at [53]-[54]).

Legislation and Cases Referenced

Legislation
- Child Protection (Offenders Prohibition Orders) Act 2004 (NSW)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 12
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(n), s 21A(2)(j)
- Crimes (Serious Sex Offenders) Act 2006 (NSW), s 7(4)
- Crimes Act 1900 (NSW), s 91H(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- McEwen v Simmons & Anor [2008] NSWSC 1292
- Pearce v R [1998] HCA 57; 194 CLR 610
- Sivell v R [2009] NSWCCA 286
- State of New South Wales v O’Sullivan [2009] NSWSC 704