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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, NSW
Date: 21 December 2015
Judges: Gleeson JA; Adams J; Fagan J

Background

The appellant had an extensive criminal history of sexual offences against children. In 2009, the Supreme Court placed him on a five-year extended supervision order under the Crimes (Serious Sex Offenders) Act 2006 (NSW), which imposed a range of conditions on his conduct and movements.

The appellant subsequently committed multiple breaches of that order. One category of breach involved the commission of three substantive offences of possessing child abuse material, contrary to s 91H(2) of the Crimes Act 1900 (NSW). Material was found on a laptop, a DVD, and a flash drive, and ranged across multiple categories of severity on the Child Exploitation Tracking System (CETS) scale, including images depicting sadism and penetrative sexual activity involving young children. Two further breaches involved failing to provide internet user details to his Community Corrections supervisor, and making contact with children under 16 without an approved adult present.

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 against that sentence in the Court of Criminal Appeal.

The court was asked to resolve the following questions:

  • Whether the sentencing judge erred by relying on inaccurate, extraneous, or outdated material from psychological and psychiatric reports tendered by the Crown
  • Whether the sentencing judge double-counted the aggravating factor of "breach of conditional liberty" when sentencing for the supervision order breach offences
  • Whether the sentencing judge erred in characterising the objective seriousness of all three child abuse material offences as "very high"
  • Whether the aggregate sentence was manifestly excessive and failed to give adequate weight to the principle of totality

Decision

Ground 1 (extraneous material): The psychological and psychiatric material used in the original Supreme Court supervision order proceedings was tendered by consent at sentencing, with no specific parts placed in issue except for recommendations concerning anti-libidinal medication. The court considered this matter, with Gleeson JA noting he did not share Adams J's views on this narrow sub-issue, but the ground was rejected.

Ground 2 (double-counting): The court rejected the submission that the sentencing judge impermissibly double-counted "breach of conditional liberty" as an aggravating factor. The breach of the supervision order was itself a distinct offence, and the court found no error in the way the sentencing judge applied the relevant sentencing principles.

Ground 3 (objective seriousness): The sentencing judge personally viewed all images and found the offending to be of very high objective seriousness. The Court of Criminal Appeal upheld this assessment. Although the laptop offence was of lesser gravity than the DVD and flash drive offences, the sentencing judge had already reflected that distinction through lower indicative sentences. Describing all three offences in general terms as "very serious" did not constitute error, and the risk of double-counting the court had been warned of did not materialise on the facts.

Grounds 4 and 5 (manifest excess and totality): The court found that the aggregate sentence properly reflected the totality principle and was not manifestly excessive. The extent of accumulation had been moderated by totality considerations, and a 25 per cent utilitarian discount for early pleas had been applied. Leave to appeal was granted, but the appeal was dismissed.

Orders Made

No orders were made in this decision.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that sentencing judges may describe multiple offences under the same provision as "very serious" in general terms, even where they vary in degree of gravity, provided the differentiation in seriousness is reflected in the indicative sentences imposed.
  • Where a breach of an extended supervision order is itself constituted by the commission of a separate criminal offence, using the aggravating factor of "breach of conditional liberty" does not automatically amount to impermissible double-counting.
  • Psychological and psychiatric material tendered by consent at sentencing, without specific parts being placed in issue, may be relied upon by a sentencing judge without error.
  • An aggregate sentence may properly reflect the principle of totality even where multiple sets of offences are accumulated, provided the extent of accumulation has been moderated with that principle in mind.
  • Possession of child abuse material spanning multiple CETS severity categories, including images of penetrative sexual activity and sadism involving young children, supported a finding of very high objective seriousness at the sentencing stage.

Legislation and Cases Referenced

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