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Court of Criminal Appeal 2 July 2018

Gold, David Marcus v R

[2018] NSWCCA 135

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE APPEAL DISMISSED

Citation: Gold, David Marcus v R [2018] NSWCCA 135
Court: Court of Criminal Appeal, NSW
Date: 2 July 2018
Judge(s): Basten JA, Button J, Fagan J

Background

The appellant was sentenced in the District Court of New South Wales on 12 April 2017, following guilty pleas to multiple offences involving the sexual exploitation of children. These included two counts of possessing child abuse material, one count of disseminating child abuse material, and three counts of grooming a child for unlawful sexual activity. Seven additional grooming counts were taken into account on a Form 1 document (a procedural mechanism that allows related charges not proceeded with to be acknowledged at sentencing and reflected in the overall penalty).

The sentencing judge, Scotting DCJ, imposed an aggregate head sentence of six years and six months imprisonment, with a non-parole period of four years. In support of a lesser sentence, the appellant tendered reports from two specialists: a consultant in addiction medicine and a forensic psychiatrist. Both described compulsive patterns of internet use and pornography consumption, and referred to neurochemical processes as underlying mechanisms.

The appellant sought leave to appeal, contending that the sentencing judge had handled the Form 1 offences incorrectly and had failed to give adequate weight to his mental condition when assessing both his moral culpability and the role of general deterrence.

  • Whether the sentencing judge erred in the manner in which he took into account the Form 1 offences when imposing the aggregate sentence.
  • Whether the sentencing judge erred by failing to assess the appellant's moral culpability in light of his mental condition.
  • Whether the sentencing judge erred by failing to reduce the weight given to general deterrence because of that mental condition.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal on both grounds. On Ground 1, the Court found no error in how the sentencing judge incorporated the Form 1 offences into the overall sentencing exercise.

On Ground 2, Button J identified eight reasons for rejecting the contention that the mental condition evidence should have operated to reduce general deterrence. The appellant's conditions, while real, were far removed from serious psychiatric illness. The evidence was clear that he understood what he was doing and remained grounded in reality throughout the offending, as demonstrated by his online messages to children and his sharing of material with other offenders.

Basten JA added observations emphasising that the psychiatric reports described a response to pornography in terms of brain chemistry, but did not identify an underlying vulnerability that causally explained the criminal conduct. In the absence of clearer scientific evidence establishing a causal link (rather than merely an underlying mechanism), the sentencing court was not required to treat the condition as diminishing the relevance of deterrence.

Button J also applied the established NSW principle from R v Henry that even dependence on highly addictive substances such as heroin or methamphetamine is not, except in unusual circumstances, a mitigating factor at sentencing. The Court found it difficult to see how an addiction to child pornography could operate any differently. The sentencing judge had, however, appropriately reduced the weight given to personal deterrence, reflecting a discriminating approach to the psychiatric material.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Psychiatric or addiction evidence must establish a causal link between the mental condition and the criminal conduct before it can meaningfully reduce moral culpability or diminish the role of general deterrence at sentencing; a description of neurochemical "underlying mechanisms" does not meet that threshold.
  • A description of "personality vulnerabilities" falls well short of what is required to attract significant sentencing consequence.
  • Under the long-standing NSW principle in R v Henry, addiction to a substance or behaviour is not, except in unusual circumstances, a mitigating factor at sentencing; the Court of Criminal Appeal applied that principle to an addiction to child pornography.
  • No error was established where the sentencing judge took a discriminating approach, allowing the mental condition to reduce personal deterrence while maintaining the weight of general deterrence, given the gravity of the offending and the appellant's awareness of his conduct.
  • In dismissing the appeal, the Court confirmed that the gravity of child exploitation offending is itself a significant factor weighing against reducing the role of general deterrence, even where some psychiatric explanation for the offending behaviour is available.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66EB, 91H
- Criminal Procedure Act 1986 (NSW), ss 32, 33

Cases:
- R v Henry [1999] NSWCCA 111, (1999) 46 NSWLR 346
- Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 2 of 2002) [2002] NSWCCA 515, (2002) 137 A Crim R 196
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194, (2010) 79 NSWLR 1