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Court of Criminal Appeal 1 June 2022

Bisiker v R

[2022] NSWCCA 110

Sexual offences

Citation: Bisiker v R [2022] NSWCCA 110
Court: NSW Court of Criminal Appeal
Date: 1 June 2022
Judges: Bell CJ; Kirk JA (primary reasons); Price J

Background

The applicant pleaded guilty to four offences arising from conduct involving child exploitation material and a failure to comply with registration obligations. Two counts were federal offences under the Criminal Code (Cth), relating to using a carriage service to transmit child pornography on multiple occasions involving multiple people. The remaining two counts were State offences: one for failing to comply with reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW) over a period of more than four years, and one for possessing child abuse material on a mobile phone.

The sentencing judge in the District Court imposed sentences with a cumulative total of 16 years and 3 months, then applied a significant degree of concurrency to produce a total effective head sentence of 6 years and 11 months, with an effective non-parole period of 4 years and 11 months (approximately 71% of the head sentence). The sentencing process involved some complexity, covering four offences under two distinct regimes, and the non-parole period was adjusted downward following a query from defence counsel at the conclusion of sentencing remarks.

The applicant sought leave to appeal out of time, arguing that the total effective sentence and non-parole period were manifestly excessive because the totality principle had been incorrectly applied in determining the degree of concurrency.

  • Whether the total effective head sentence of 6 years and 11 months was manifestly excessive by reason of insufficient concurrency between the four sentences
  • Whether the effective non-parole period of 4 years and 11 months was manifestly excessive
  • Whether the sentencing judge correctly applied the totality principle when structuring accumulation and concurrency across offences under two different legislative regimes
  • Whether manifest excess could be inferred from the final sentencing result alone, absent a specific complaint about the primary judge's reasoning

Decision

The Court of Criminal Appeal granted leave to appeal out of time but dismissed the appeal. Kirk JA, with whom Bell CJ and Price J agreed, found no appellable error in the exercise of the sentencing discretion.

The Court emphasised that the criminality involved in a failure to comply with the Child Protection (Offenders Registration) Act is distinct from the criminality underlying the substantive child exploitation material offences. Registration and reporting requirements serve their own purposes: providing intelligence to police about child sex offenders, assisting in community management of such offenders, and offering victims and their families an increased sense of security. The Court held that those purposes would be undermined if a failure to comply with registration obligations were treated as subsumed within subsequent offences that arose from the very conduct that should have been reported. A not insignificant degree of accumulation was therefore appropriate.

The Court also noted that the federal offences themselves were distinct from each other in terms of the conduct involved, further justifying accumulation. The applicant's core argument, that manifest excess could simply be inferred from the final sentencing result, was rejected. There was no complaint about the primary judge's stated reasoning, and the Court found nothing in the outcome that was unreasonable or plainly unjust, applying the established standard from House v The King (1936) 55 CLR 499.

On the non-parole period, the Court found no manifest excess. The unchallenged findings below included the objective gravity of the offences, the applicant's poor prospects of rehabilitation, absence of genuine contrition, lack of insight, a well-above-average predicted risk of sexual recidivism, active steps taken to defeat prior restrictions, and a lengthy criminal record. Both specific and general deterrence were significant considerations. Prior decisions of the Court dealing with overlapping child pornography charges were also noted and found to offer no support for the applicant's position.

Orders Made

  • Leave to appeal out of time granted
  • Appeal dismissed

Key Takeaways

  • A failure to comply with registration and reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW) involves criminality that is distinct from the underlying child exploitation material offences; sentencing courts may appropriately accumulate such sentences rather than treating the registration offence as absorbed into the substantive charges.
  • The purposes of the registration regime, including intelligence gathering, offender management, and victim security, would be undermined if compliance failures were routinely subsumed within sentences for connected offences.
  • Manifest excess in a sentencing outcome cannot be established by pointing to the final result alone where no specific error in the sentencing judge's reasoning has been identified; the Court of Criminal Appeal must be able to infer that the discretion has failed in some way before interfering.
  • In dismissing the appeal, the Court confirmed that an effective non-parole period of approximately 71% of the head sentence was not excessive in circumstances involving serious child exploitation offences, poor rehabilitation prospects, high recidivism risk, and a significant criminal history.
  • Prior Court of Criminal Appeal decisions on concurrent and accumulated sentences for child pornography offences (including Lyons, Berryman, and Huggett) were cited but found to provide no support for the applicant's case.

Legislation and Cases Referenced

Legislation
- Child Protection (Offenders Registration) Act 2000 (NSW), s 17(1)
- Crimes Act 1900 (NSW), s 91H(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
- Criminal Code (Cth), ss 474.19, 474.24A(1)

Cases
- House v The King (1936) 55 CLR 499
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Lyons v R [2017] NSWCCA 204
- Berryman v R [2017] NSWCCA 297
- Huggett v R [2021] NSWCCA 62
- Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301
- Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
- R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174
- R v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115