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Court of Criminal Appeal 19 June 2020

Burton v R

[2020] NSWCCA 127

Sexual offences
APPEAL SENTENCE APPEAL

Citation: Burton v R [2020] NSWCCA 127
Court: NSW Court of Criminal Appeal
Date: 19 June 2020
Judge(s): Hoeben CJ at CL, Walton J, Harrison J

Background

The appellant was a man in his mid-twenties employed by the Australian Defence Force who was convicted of two offences. The first was using a carriage service to transmit child pornography material contrary to s 474.19(1) of the Criminal Code (Cth), which arose from written communications sent over Skype during a period of approximately two years between January 2013 and February 2015. The second was possession of child abuse material contrary to s 91H(2) of the Crimes Act 1900 (NSW), relating to four images found on his personal computer following a search warrant executed in July 2015.

At sentencing, the District Court also took into account, on a schedule, an offence of using a carriage service to transmit indecent material to persons believed to be under the age of 16 years. Two of those persons were police officers conducting covert operations. The total effective sentence imposed was 21 months imprisonment with a non-parole period of 12 months.

The appellant sought leave to appeal that sentence before the Court of Criminal Appeal, contending that the sentencing judge had erred in assessing the objective seriousness of the main offence and that the overall sentences were manifestly excessive.

  • Whether the sentencing judge erred in assessing the objective seriousness of the carriage service child pornography offence (Count 1) as falling within the mid-range, given that the material transmitted was in written form and there were no identifiable child victims
  • Whether the total sentences imposed were manifestly excessive having regard to the circumstances of the offending and the appellant's subjective case

Decision

On the first ground, the Court of Criminal Appeal noted that the offending involved written descriptions of child pornography rather than images or video. Harrison J acknowledged this was a relevant distinction and accepted that the absence of identifiable child victims was a factor capable of reducing objective seriousness. However, his Honour found the offending still involved a deliberate and premeditated course of conduct over an extended period, with the communications being highly sexualised. The question was not whether a different assessment was open but whether the mid-range characterisation was itself unavailable.

Harrison J concluded that, even if a below mid-range assessment might arguably have been open, the mid-range finding did not constitute error when considered against the full circumstances. Notably, his Honour observed that the sentence actually imposed appeared to favour the appellant, suggesting the subjective case had significantly moderated the outcome even if the objective rating was high. The court confirmed that assessment of objective seriousness is quintessentially a matter for the sentencing judge, citing Mulato v R [2006] NSWCCA 282.

On the second ground, the Court found the sentences were not manifestly excessive. The sentencing judge had carefully structured the sentences with a relatively short non-parole period, had applied a 10% discount for guilty pleas, made a finding of special circumstances, and had given weight to the appellant's good character, lack of prior criminal history, and psychiatric evidence. The Court accepted the Crown's submission that the appellant had displayed limited insight during his oral evidence, minimised his conduct, and shown little remorse, all matters the sentencing judge was entitled to weigh.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that assessing objective seriousness is quintessentially a matter for the sentencing judge, and an appellate court will not intervene simply because a different assessment might have been open.
  • Where child pornography material transmitted via a carriage service consists of written descriptions rather than images, the absence of identifiable child victims is a relevant mitigating factor in assessing objective seriousness, but it does not necessarily place the offence below the mid-range.
  • In dismissing the appeal, the Court noted that a mid-range finding on objective seriousness does not automatically translate to a mid-range sentence, particularly where the offender's subjective case is strong.
  • An appellant's limited insight into their offending, minimisation of conduct, and lack of remorse are matters a sentencing court is entitled to weigh against the subjective case when determining the final sentence.
  • Under s 474.19(1) of the Criminal Code (Cth), the offence of using a carriage service to transmit child pornography material carries a maximum of 15 years imprisonment, and the definition of "child pornography material" in s 473.1 extends to written descriptions, not only visual depictions.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), ss 473.1, 474.19(1), 474.27A(1)
- Crimes Act 1900 (NSW), s 91H(2)
- Crimes Act 1914 (Cth), s 16BA

Cases
- Mulato v R [2006] NSWCCA 282
- Franklin v R [2019] NSWCCA 325
- Lees v R [2019] NSWCCA 65
- R v Hutchinson [2018] NSWCCA 152
- R v Porte [2015] NSWCCA 174; 252 A Crim R 277
- Salafia v R [2015] NSWCCA 141
- Whiley v R [2010] NSWCCA 53
- Director of Public Prosecutions (Cth) v D'Alessandro (2010) 26 VR 477; [2010] VSCA 60
- R v Coffey (2003) 6 VR 543; [2003] VSCA 155
- R v Cook; Ex parte Director of Public Prosecutions (Cth) [2004] QCA 469
- R v Gordon; Ex Parte Director of Public Prosecutions (Cth) (2011) 1 Qd R 429; [2009] QCA 209