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Court of Criminal Appeal 23 August 2017

R v Freedman

[2017] NSWCCA 201

Sexual offences
CRIMINAL LAW APPEAL ERRORS ESTABLISHED APPEAL PRACTICE AND PROCEDURE

Citation: R v Freedman [2017] NSWCCA 201
Court: Court of Criminal Appeal
Date: 23 August 2017
Judge(s): Leeming JA, Bellew J, Lonergan J

Background

The respondent pleaded guilty to two offences: using a carriage service to access child pornography (contrary to the Criminal Code 1995 (Cth)) and possessing child abuse material (contrary to the Crimes Act 1900 (NSW)). Police discovered the material during an authorised visit to his home, a visit made possible by his registration on the Child Protection Register arising from earlier convictions in 2010 for sexual offences against children committed in 2003.

The offending involved downloading a substantial volume of child abuse and child pornography material over more than 12 months via the Dark Net, accessed through a specially installed browser. Several hundred image and video files were found on a portable hard drive, with a significant proportion classified in the most serious categories of the Child Exploitation Tracking System (CETS), including material depicting sadism, humiliation, and bestiality.

The sentencing judge at first instance imposed two wholly concurrent Intensive Correction Orders (ICOs) of 15 and 12 months respectively, commencing 10 March 2017. The Crown appealed on the ground that the sentence was manifestly inadequate.

  • Whether the sentencing judge erred by failing to accumulate the sentences to any degree
  • Whether the sentencing judge erred by failing to give proper weight to the need for general deterrence
  • Whether the sentencing judge gave excessive weight to the respondent's prospects of rehabilitation
  • Whether the Court's residual discretion to decline to intervene in a Crown appeal should be exercised, given delays in providing the transcript, filing the notice of appeal, and serving it on the respondent

Decision

Manifest inadequacy

All three judges agreed that the original sentence was manifestly inadequate. The Court confirmed the well-established principle, articulated across Australian jurisdictions, that a term of immediate imprisonment will ordinarily be expected for child pornography offences unless exceptional circumstances exist. The sentencing judge made no finding of exceptional circumstances and, on the Court's analysis, no such circumstances were present on the facts.

The Court found three specific errors in the sentencing judge's reasoning: failure to accumulate the sentences at all, failure to give adequate weight to general deterrence, and excessive weight accorded to rehabilitation. The Court also criticised the sentencing judge for failing to make any findings about the respondent's subjective case, instead merely reciting the contents of references and reports before concluding that rehabilitation was possible.

Residual discretion

The Court divided on whether its residual discretion to decline to re-sentence should be exercised in the respondent's favour. Leeming JA was prepared to exercise that discretion given the Crown's lack of urgency in prosecuting the appeal, including delays in obtaining the transcript, filing the notice of appeal, and serving it. Bellew J and Lonergan J disagreed and declined to exercise the discretion, emphasising the seriousness of the offending, the public interest in adequate punishment for child abuse-related crimes, and the importance of general deterrence. The majority therefore proceeded to re-sentence the respondent.

Re-sentence

The majority set aside the original ICOs and imposed consecutive, partly cumulative terms of full-time imprisonment: a fixed term of 15 months for the state offence, followed by 18 months (with a 15-month non-parole period) for the federal offence. The total effective sentence was substantially longer than the original and required the respondent to serve actual custody.

Orders Made

  • The orders of the sentencing judge of 10 March 2017 are set aside.
  • For the offence contrary to s 91H(2) of the Crimes Act 1900 (NSW): a fixed term of 15 months imprisonment, commencing 10 March 2017 and expiring 9 June 2018.
  • For the offence contrary to s 474.19(1) of the Criminal Code 1995 (Cth): 18 months imprisonment, commencing 10 June 2017 and expiring 9 December 2018.
  • Pursuant to s 19AC(1) of the Crimes Act 1914 (Cth): at the expiration of 15 months from 10 June 2017 (being 9 September 2018), the respondent is to be released on his own recognisance of $500, without security, to be of good behaviour for 3 months.

Key Takeaways

  • Immediate full-time custody is ordinarily expected for child pornography offences across Australian jurisdictions, absent exceptional circumstances. The Court of Criminal Appeal confirmed this principle applies even where a more lenient formulation of the test is adopted, as stated in the Victorian case of DPP (Cth) v Garside.

  • A sentencing judge in such matters must make express findings about any exceptional circumstances said to justify departing from immediate imprisonment. Reciting contents of subjective evidence without making findings constitutes error.

  • Where a Crown appeal concerns offending that is serious and ongoing harm to children, the public interest in adequate punishment and general deterrence weighs heavily against exercising the residual discretion to permit an erroneous sentence to stand.

  • The residual discretion in Crown appeals is not automatically displaced by Crown delay in filing or serving a notice of appeal. The majority here held that the nature of the offending and public interest considerations outweighed the Crown's lack of urgency.

  • Concurrent sentences across two offences involving different transactions over an extended period require justification. Failing to accumulate sentences to any degree on these facts was identified as a discrete sentencing error.

Legislation and Cases Referenced

Legislation
- Child Protection (Offenders Registration) Act 2000 (NSW), ss 9, 16C, 19
- Criminal Code 1995 (Cth), s 474.19(1)
- Crimes Act 1900 (NSW), s 91H(2)
- Crimes Act 1914 (Cth), s 19AC(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- House v The King (1936) 55 CLR 499
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- CMB v Attorney-General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
- Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38
- R v De Leeuw [2015] NSWCCA 183
- R v Glynatsis [2013] NSWCCA 131
- R v Cidan [2014] NSWCCA 66
- Cahyadi v R [2007] NSWCCA 1
- Fedele v R [2015] NSWCCA 286
- Fitzgerald v R [2015] NSWCCA 266
- Kearsley v R [2017] NSWCCA 28
- R v Jafari [2017] NSWCCA 152
- Director of Public Prosecutions (Cth) v Zarb (2014) 46 VR 832; [2014] VSCA 347
- Director of Public Prosecutions (Cth) v Garside [2016] VSCA 74
- Director of Public Prosecutions v D'Alessandro (2010) 26 VR 477; [2010] VSCA 60
- Director of Public Prosecutions (Vic) v Karazisis (2010) 31 VR 634; [2010] VSCA 350
- Director of Public Prosecutions v Guest [2014] VSCA 29
- Director of Public Prosecutions (Cth) v Afford [2017] VSCA 201
- R v Dodd (1991) 57 A Crim R 349