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7
Court of Criminal Appeal 1 July 2016

Burbridge v R

[2016] NSWCCA 128

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE CHILD PORNOGRAPHY OFFENCES MANIFEST EXCESS TOTALITY NO ERROR IDENTIFIABLE OR MANIFEST

Citation: Burbridge v R [2016] NSWCCA 128
Court: Court of Criminal Appeal, NSW
Date: 1 July 2016
Judge(s): Macfarlan JA; Rothman J; Bellew J

Background

The applicant pleaded guilty in the District Court to five offences involving child pornography and child abuse material: two Commonwealth offences of using a carriage service to access and transmit child pornography, and three State offences of producing and possessing child abuse material. The material involved approximately 300 children aged between roughly 18 months and 14 years old, spanning nearly 1,854 files.

The sentencing judge imposed a combination of fixed terms and head sentences, staggered in commencement dates to manage the interaction between Commonwealth and State sentencing regimes. The overall sentence was described as 4 years' imprisonment, with a mandatory period in custody of 2 years and 3 months. The applicant had also committed one offence while on bail for the other charges.

The applicant sought leave to appeal, contending that the sentences were manifestly excessive and that the sentencing judge had erred in the degree to which the individual sentences were accumulated.

  • Whether any of the individual sentences imposed were manifestly excessive.
  • Whether the overall sentence failed to properly apply the principle of totality, meaning whether the combined effect of all the sentences was disproportionately harsh when viewed as a whole.
  • Whether the sentencing judge erred by commencing the State sentences first and accumulating the Commonwealth sentences afterwards, as a mechanism for managing the complexities of concurrent State and Commonwealth sentencing regimes.

Decision

The Court of Criminal Appeal unanimously dismissed the appeal. Rothman J, with whom Macfarlan JA and Bellew J agreed, found that no individual sentence was manifestly excessive and that the overall sentence fell within the appropriate range. The Court emphasised that general deterrence is a significant factor for offences of this kind, particularly where the conduct extended beyond passive acquisition to active production and distribution of child pornography.

Macfarlan JA added observations highlighting the gravity of the applicant's conduct. The applicant had not merely received child pornography but had sent 41 emails attaching 213 files to others and had admitted forwarding such material over 100 times. He had also written and published a story on a child abuse website rated at category 4 on the Child Exploitation Tracking System scale, conduct the Court noted had a tendency to generate demand for such material.

The Court compared the sentences with those imposed in recent comparable cases, including Linardon, Martin, Porte, and De Leeuw, and found the sentences in this case were by no means outside the established range. Macfarlan JA also noted that legislative increases to the maximum penalties for these offences, from 10 to 15 years for Commonwealth offences and from 5 to 10 years for State offences, reflected the seriousness with which Parliament regards them.

The argument about accumulation was rejected as lacking merit. The approach of fixing State sentences to commence first, then accumulating Commonwealth sentences, was described as an appropriate and practical method of managing the interaction between the two sentencing regimes. Any residual difficulty concerning the commencement of a Commonwealth recognizance release order could, the Court noted, have been resolved by fixing an aggregate sentence for the two Commonwealth offences, though it was unnecessary to resolve that point definitively.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • No error was established in the individual sentences or their overall accumulation; the Court of Criminal Appeal confirmed the total sentence of 4 years' imprisonment with 2 years and 3 months in custody fell within an appropriate range for offences of this nature and scale.
  • Active distribution of child pornography, including by email and through publishing abuse-related written material online, was treated as significantly more serious than passive possession, and the sentencing court was entitled to treat it as such.
  • Commencing State sentences first and then accumulating Commonwealth sentences is a recognised and acceptable method of managing the procedural complexities arising from the interaction of State and Commonwealth sentencing regimes in NSW.
  • In assessing manifest excess, the relevant question is not whether the Court of Criminal Appeal would itself have imposed the same sentence, but whether the sentence actually imposed is outside the permissible range to a degree that is plainly unreasonable.
  • Legislative increases to maximum penalties for child pornography offences, both under the Criminal Code Act 1995 (Cth) and the Crimes Act 1900 (NSW), are relevant considerations when assessing the objective seriousness the legislature ascribes to such conduct.

Legislation and Cases Referenced

Legislation:
- Crime (Sentencing Procedure) Act 1999 (NSW), ss 47(2), (3), (4)
- Crimes Act 1900 (NSW), s 91H(2)
- Crimes Act 1914 (Cth), ss 16E, 19AC
- Criminal Code Act 1995 (Cth), ss 474.19(1)(a)(i), 474.19(1)(a)(iii)

Cases:
- AB v The Queen [1999] HCA 46; (1999) 148 CLR 111
- Assafiri v R [2007] NSWCCA 159
- Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571
- Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
- Fitzgerald v R [2015] NSWCCA 266
- Kentwell v The Queen [2014] HCA 37; (2014) 252 CLR 601
- Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Payda v R [2013] NSWCCA 109
- R v De Leeuw [2015] NSWCCA 183
- R v Linardon [2014] NSWCCA 247
- R v Martin [2014] NSWCCA 283
- R v Porte [2015] NSWCCA 174
- Wong and Leung v The Queen [2001] HCA 64; (2001) 207 CLR 584