Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Kumar v R [2011] NSWCCA 139
• Hearing dates: 4 March 2011
• Decision date: 06 July 2011
• Before: Hodgson JA at [1]; Adams J at [2]; Hall J at [50]

Decision

(1) The time for lodging the notice of appeal is extended to 1 November 2010.

(2) Leave to appeal is granted.

(3) The sentences imposed on the appellant are quashed.

(4) In respect of count 2 the applicant is sentenced to 2 years imprisonment commencing 11 March 2009 and ending on 10 March 2011 with a non-parole period of 1 year and 6 months commencing on 11 March 2009 and ending on 10 September 2010.

(5) In respect of count 1 the applicant is sentenced to imprisonment for 3 years commencing on 11 March 2010 and ending on 10 March 2013 with a non-parole period of 2 years commencing on 11 March 2010 and ending on 10 March 2012.

• Catchwords: CRIMINAL LAW - appeal against sentence - possession of child pornography - use of carriage service to access child pornography - plea of not guilty.; SENTENCING - plea of not guilty - claims of innocence made by offender - deterrence of claims of innocence not a function of sentencing.
• Legislation Cited: Crimes Act 1900; Crimes (Sentencing Procedure) Act 1999; Criminal Appeal Act 1912; Criminal Code Act 1995 (Cth); Customs Act 1901 (Cth)
• Cases Cited: Ali v R [2010] NSWCCA 35; Mouscas [2008] NSWCCA 181; Power v DPP (NSWDC, Unreported, 19 July 2007); R v Assheton (2002) 132 A Crim R 237; R v Booth [2009] NSWCCA 89; R v Elliott [2008] NSWDC 238; R v Gent [2005] NSWCCA 370; R v Jones [2009] NSWDC 8; R v Leonard [2008] NSWDC 211; Saddler v R [2009] NSWCCA 83
• Category: Principal judgment
• Parties: Rajendra Kumar (Applicant); Regina (Respondent)
• Representation: Counsel; A. Francis (Applicant); P. McGuire (Respondent); Solicitors; Catherine Hunter (Applicant); Commonwealth Director of Public Prosecutions (Respondent)
• File Number(s): 2008/13308

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2009-07-17 00:00:00
• Before: Finnane DCJ
• File Number(s): 2008/13308

Judgment

1 HODGSON JA : I agree with Adams J.

2 ADAMS J :

Introduction

3 On 11 March 2009 the applicant was found guilty following trial by jury in the District Court of the following offences:

(a) count 1 - on or about 1 April 2008, using a carriage service to access child pornography contrary to s 474.19(1)(a)(i) of the Criminal Code Act 1995 (Cth); and

(b) count 2 - between 7 August 2006 and 15 May 2008 possessing child pornography contrary to s 91H(3) of the Crimes Act 1900 (NSW).

4 The maximum penalty prescribed for the count 1 offence is imprisonment for 10 years and for the count 2 offence imprisonment for 5 years. In 2009, after commission of these offences, the maximum penalty for the count 2 offence was increased from 5 years to 10 years imprisonment. Sentence hearings were conducted on 7 May and 19 June 2009. For the purposes of sentencing, the Crown relied on the evidence adduced in the trial and tendered a pre-sentence report, which attached a psychological pre-sentence assessment and a criminal history. The applicant, who had not given evidence at the trial, did not give evidence at the sentence hearings. He tendered references from his wife and daughter and documents relating to loss of employment. On 17 July 2009 the applicant was sentenced -

(a) in respect of count 1, to 5 years imprisonment commencing on 11 March 2009 with a non-parole period of 3 years; and

(b) in respect of count 2, to 4 years imprisonment commencing on 11 March 2011 with a non-parole period of 2 years.

5 The effective head sentence was six years imprisonment commencing on 11 March 2009 with an effective non-parole period of four years.

6 The applicant appeals from these sentences, relying on the following grounds of appeal -

(1) the sentencing judge erred in imposing a sentence which gave "great weight" to the need to deter others from pleading not guilty; and

(2) the sentence is manifestly excessive.

7 The first ground of appeal did not reflect with complete accuracy the substance of the complaint. The passage in the learned sentencing judge's reasons to which the applicant pointed, in particular, as demonstrative of significant error is as follows -

"The sentences which I impose as will be seen give greater weight to general deterrence, the need to deter others from engaging in this conduct and particularly the need to deter others from making false claims that they did not engage in it when they did, and of course the principles of retribution fixing an appropriate sentence for the seriousness of the offences."

8 At trial the defence argued that the prosecution had not established that it was the applicant who downloaded the relevant material and accessed it, since it had not excluded the reasonable possibility that others, including in particular the applicant's daughter, could have done so. The applicant did not give evidence at any stage in the proceedings and there was no positive evidence implicating his daughter (or anyone else, for that matter). Following conviction, the applicant was interviewed by a psychologist employed by the Department of Corrective Services. The psychologist reported that the applicant, denying his guilt, said that his daughter, who was 14 at the time, had confessed to downloading the child pornography. The report was tendered by the Crown in the sentence proceedings as an annexure to the Probation and Parole pre-sentence report. It disclosed that the applicant made the same claim to the Probation and Parole officer. Counsel for the applicant did not rely on that matter in his submissions on sentence.

9 The gravamen of this ground of appeal, more correctly put, is not that the applicant was punished for pleading not guilty but that the sentencing judge erred by taking into account, in addition to the usual relevant matters, "the need to deter others from making false claims that they did not ... [commit the crimes] when they did".

The facts

10 The nature of the material in question was described in his Honour's reasons for sentence and is not the subject of controversy. The following is largely taken from that account.

11 The great majority of the images accessed by the applicant were of very young naked girls displayed in erotic poses. However, there were also images of men apparently in their forties having penile vaginal intercourse with young girls, possibly aged 8 or 9 years. There were a few images of torture. There were many images involving ejaculation by a man on the body of a young girl, the rubbing of semen on the body of a girl near her vaginal opening and other "disgusting" material. Both still pictures and videos were downloaded. The young girls appeared to be very slightly built and not well nourished. The 86 images which were accessed on 1 April 2008 and the subject of the first count were mostly of young naked girls. Many of the images focussed on their genital area, each of the girls posing in a sexually suggestive manner, exposing their genitalia, touching themselves, dancing, dressing and undressing. There were images of girls licking and holding adult penises, being ejaculated on and having their genital area touched by adult males. A number of the images were of girls being vaginally penetrated by adult penises, performing oral sex on adult males and being digitally penetrated by them. There was also an image of a girl between 8 and 10 years of age bound with rope, kneeling on a bed "looking very, very much in distress" while on the same bed an adult male was having sex with another child next to her.

12 His Honour also noted that in addition to the images which were the subject of the first count there were 12,000 other images and 11 video movies located on the applicant's computer hard drive which were admitted for tendency purposes. His Honour said that it was not necessary to discuss the exact detail of these images, other than to say that they contained much the same material as the type of image he had already described. His Honour does not expressly state that he did not take this material into account in sentencing the applicant but his Honour's reference to the purpose for which they were admitted justifies the inference, as it seems to me, that his Honour (with respect rightly) did not take them into account. May I, with respect, suggest that where other criminality is referred to than that for which an offender is being sentenced, it is desirable to explicitly state the reason for which it is mentioned in order to avoid any potential ambiguity.

13 It appears that material was first looked at by the applicant while browsing the internet (this being recorded on the computer hard drive) and he subsequently saved particular images onto the USB drive, undertaking this process over a period of about a year and nine months. The first image was found on 8 August 2006 and the latest 1 May 2008. Possession of these images formed the basis of the second count. Of the 118 images found on the drive some were of children as young as two while others were of children some four and five years old. Many of them involved what his Honour described as "straight out criminal activity by males on these young children". One involved a girl who was obviously being tortured in some way, her wrists taped to her ankles and gaffer tape over her mouth. She lay on a bed with underwear cut. These were all still pictures. There are also four video films of digital and penile penetration of girls under the age of ten. His Honour found that what he described as "quite large numbers" of different children were involved, though sometimes the same child was involved repeatedly.

14 There is no evidence that the applicant communicated with anyone else to share the material or that he sought from other persons to share their material.

15 The claims made by the applicant as to his daughter's responsibility were relevant only to the question of the applicant's remorse and contrition, prospects of rehabilitation and the weight to be given to the element of personal deterrence. The jury verdicts required that the applicant be sentenced on the basis that the applicant had intentionally committed the offences in both counts of the indictment and it was no part of the judge's function to consider the matter. To do so gives the unfortunate impression that the jury's verdicts required the judge's approval before they could be given their full effect.

The subjective features

16 The following is taken from the sentencing judge's reasons for sentence. The offender was born in Fiji and is the eldest of five children. He lived in a rural community and was brought up in poor circumstances. He came to Australia in 1983 on a student visa and married in 1988. He has a daughter who was 15 years of age as at the date of sentence. He became an Australian citizen in June 1994. He has done some tertiary study and, at the time of his arrest, and up until the time of his conviction, was working in an accounts section of a major public hospital. He was undertaking a second job as a cleaner at night to assist with payments on his home mortgage. The applicant told a probation officer that he owed $800,000 for his home and had other large debts. He was by far the major provider of resources for his family, his wife having a part-time cleaning job and his daughter being at school. He was 50 years of age at the date of sentence.

Ground of appeal 1

17 The Judge's reasons for sentence discuss in detail the applicant's response to the charges and its significance. They commence with the observation that, so far as counsel were able to inform him and as far as his own research extended, the applicant was the first person found with this material on his hard drive or on a computer of which he had control to plead not guilty, every case located involving a guilty plea. His Honour then discussed the evidence at trial at some length and the approach taken by defence counsel of suggesting that the police had not investigated the possibility that the applicant's brother, neighbours or daughter had downloaded and viewed the material rather than the applicant. Referring to the probation and psychologist's reports, his Honour said the applicant had "repeated his allegations to those people that his daughter was the one who downloaded the material, and has explained to them that this arose because he and his wife were not able to tell her about normal sexual matters and she just did this without his knowledge". He concluded -

"I would reject this claim by him as an utterly false claim and one that shows him to be a dishonest and rather callous individual. To blame a daughter for his own offences is something which in my view is utterly unacceptable".

If I may say so with respect, this observation was entirely just. However, the matter did not end there. The issue raised on the appeal is the way in which the judge applied this conclusion in assessing the sentence to be imposed.

18 Following the conclusion about the applicant's blaming his daughter, the judge returned to the other cases which had been brought to his attention. His Honour noted that in many cases the offenders were in possession of very large numbers of images, many involving large numbers of torture videos, but that in every case the persons charged pleaded guilty and in most cases "claimed that they would seek to do something about the problem of accessing child pornography". His Honour said that in many cases psychiatric evidence was produced of offenders undergoing rehabilitation treatment or a willingness to do so and contrasted this with the case of the applicant who "continues to say he did not do anything and who will not be given the access to any such programs in goal because he continues to deny doing anything at all".

19 Noting that the majority of images downloaded by the applicant did not fall into the category of torture or sexual activity between adults and children, although some of them did, his Honour continued -

"This makes them different ... to many of the cases to which I have been referred. However, what makes his case worse than all their cases is his adamant refusal to admit that he has done anything and his continuing to blame his daughter"

20 Put in other words, despite the significantly more serious objective circumstances of the other cases, the applicant's case was worse because he continued to deny his guilt and falsely blamed his daughter.

21 His Honour concluded with the following passage, which I set out again for convenience of reference -

"The sentences which I impose as will be seen give greater weight to general deterrence, the need to deter others from engaging in this conduct and particularly the need to deter others from making false claims that they did not engage in it when they did, and of course the principles of retribution fixing an appropriate sentence for the seriousness of the offences". [Emphasis added.]

22 In this Court, the Crown prosecutor conceded that, if the sentencing judge expressed the view "that the conduct of the defence at trial was an aggravating feature which increased the sentence, then he would have fallen into serious error". In my view, although the sentencing judge referred to the conduct of the defence, the false claims which he was concerned to deter were of the type made by the applicant after he was convicted. His Honour had agreed during submissions that the defence conducted at the trial was not aggravating but rather deprived him of various mitigating circumstances and commented that the applicant had "defended the case as he [was] entitled to". The reference to the course of the defence simply gave a context for the evidence which his Honour discussed. However, in my respectful view, the sentencing judge plainly regarded the "claims" made to the psychologist and the probation officer as being in a quite different category which, it appears his Honour thought, were required to be refuted by reference to the evidence at trial.

23 It seems to me that, in determining Ground 1, it makes no difference in point of principle whether it could be said that the applicant was punished additionally because of the defence he ran at trial or his subsequent claims of innocence in which he blamed his daughter. The fact is that, in this case, sentencing error as explained in paragraph [22] has been made out. Whilst the continuation of the applicant's claims of innocence were relevant to the subjective factors of remorse, contrition and rehabilitation, they were in no sense aggravating features of the offences. The need to deter others from making "false claims" of innocence is not and never has been a function of sentencing. It cannot be an element of general deterrence: that function of sentencing is directed to deterring the commission by others of the offence in question. And, because it is not an offence, it cannot be justified by the need to prevent such false claims by the offender being made in the future.

24 Since the reasons for sentence make it clear that this feature significantly affected the sentence which was imposed it is unnecessary to consider the second ground of appeal as this Court is at all events obliged to re-sentence the applicant unless, of course, no lesser sentence is warranted (s 6(3) of the Criminal Appeal Act 1912).

Re-sentencing

25 The objective and subjective features of the case have already been set out. Making due allowance for the facts that the applicant has not pleaded guilty and told both the psychologist and the probation officer that his daughter was responsible for the offences, it seems to me that some assistance is obtained by examining other cases dealing with these offences.

26 It may be worth stating, in parenthesis, that the case presented on the applicant's behalf at the sentencing proceedings was not that the applicant was innocent or that his daughter was responsible. At no stage did the applicant's solicitor make such a submission, although he acknowledged that this was claimed by his client in the reports tendered by the prosecution.

27 The fact that the applicant continued (and presumably continues) to deny his guilt, however, is material on the issues of remorse, contrition and rehabilitation. If I may say so, with respect, a useful discussion of this point is contained in the judgment of Johnson J (the other members of the bench agreeing) in Ali v R [2010] NSWCCA 35 -

"[47] In R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at 169-170 [41], the Court of Criminal Appeal observed that remorse will be a major factor in determining whether an offender is unlikely to re-offend and had good prospects of rehabilitation and that, without true remorse, it is difficult to see how either finding could be made. Considerations of this type were clearly at the forefront of the sentencing Judge's thinking on this issue.

[48] This Court has observed that there can be rehabilitation without confession, and that offenders found guilty after trial are not to be automatically deprived of a finding of good prospects of rehabilitation unless they acknowledge their guilt: Alseedi v R [2009] NSWCCA 185 at [65]. In a different context, it has been said that a medical practitioner who has been deregistered because of proven sexual misconduct is not required to confess before he is reinstated, although continuing vigorous challenge to clearly established guilt may be indicative of continuing unfitness: Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82 at 100. Similar considerations arise where release on parole is being considered for a sex offender who denies guilt or refuses to undertake a custodial treatment programme: DCU v State Parole Authority of NSW [2006] NSWSC 526 at [46]-[55], [66]-[67]; Lee v State Parole Authority of NSW [2006] NSWSC 1225 at [59]-[64]".

28 I think it is also worth noting that genuine remorse and contrition are of themselves significant features militating in favour of mitigation of punishment and form part of the factual elements influencing the instinctive synthesis of all the relevant matters which lead to the ultimate assessment of the appropriate level of sentence. Of course the influence of this factor is, as is the case with all the other relevant considerations, incommensurable but, as it seems to me, to a greater or lesser extent depending on all the other facts, genuine remorse and contrition should play a role in determining the appropriate level of punishment and are not limited to the question of rehabilitation.

29 Where a lack of remorse arises from a refusal to accept that the crime was morally wrong, this may well justify the conclusion that an offender might be likely to offend again. On the other hand, where it is essentially a refusal to admit guilt, the lack of remorse does not - at least taken alone - carry this implication though it might (depending on all the circumstances) prevent a positive finding that the offender is likely not to re-offend. This is a question to be determined by realistic common sense in each particular case and cannot be a matter of legal principle.

30 In this case, there is no basis for concluding that the applicant regards the offences as lacking a significant level of moral turpitude. He has not suggested in any way that the conduct alleged was innocent, only that he did not undertake it. Indeed, the extreme course of denying his guilt by blaming his daughter is to my mind some evidence that, at least, he acknowledges not only the illegality of the conduct but the significant moral shame which its commission engenders and which he is not prepared to accept. Furthermore, the utility of punishment as deterring re-offending should not be discounted. Its very justification depends upon acceptance - as accords at all events with common sense - that persons will be deterred from repeating their offences by the punishment which they have undergone and which they will suffer again if they re-offend.

31 The psychological assessment, made in the knowledge of the applicant's denials of guilt, was that he falls within the low risk group for committing further child pornography offences, applying static actuarial, individual dynamic and stable risk assessments. It is not necessary to set out the reasoning that justified this opinion. It is sufficient to say that it is based upon a widely accepted methodology that, with all its inherent shortcomings, gives rise to conclusions significantly more useful than a mere hunch or uninformed intuition. Of course, statistical analyses are scarcely prescriptive of the actual risk in an individual case. Nevertheless, they can usefully inform the consideration of the risk of re-offending by an individual.

32 In this case, the psychologist's assessment that individual's with the applicant's characteristics are at low risk of re-offending is apparently accepted by the author of the pre-sentence report.

33 The psychologist recommended that, should the Court impose a non-custodial sentence, the applicant should be referred to a sex offender program in the community and pointed to that operated by the Forensic Psychology Service within the department of Corrective Services. Since a non-custodial sentence is out of the question, it is relevant to consider the availability of similar treatment in the prison context. Such programs are available at Long Bay Correctional Centre and, presumably, elsewhere but, since the applicant maintains his innocence, it appears from the Probation and Parole report that, as at 7 May 2009, he was ineligible. The report noted that a future program targeted at similar offenders is proposed but that, as at the date of the report, it was not known when this program was likely to commence. In the course of dealing with orders for continuing detention of sex offenders, I have been made aware that such programs are now available. Given the non-controversial character of this evidence it seems to me, at least, that this Court should not proceed upon the basis that the applicant would not be eligible for sex offender programs in the prison situation.

34 In my view the applicant should be sentenced upon the basis that although his criminality is not mitigated by the presence of remorse and contrition, he is at a low risk of re-offending and no particular weight should be given, out of the ordinary, to the aspect of personal deterrence.

35 On the question of objective gravity, I should first mention the submission of the Crown that the increase after the applicant's offences of the maximum penalty for possession of child pornography from five to ten years' imprisonment is "broadly relevant to the seriousness of these offences and the need for a strong deterrent". In my view, this increase of the maximum penalty is not material to sentencing the applicant. He must be sentenced on the basis that at the time he committed the offence the maximum sentence did in fact reflect its seriousness.

36 So far as the cases go, a useful starting point is the judgment of Johnson J (the other members of the Court agreeing) in R v Gent [2005] NSWCCA 370. In that case the applicant appealed from a sentence imposed for the offence of importation of child pornography contrary to s 233BAB(5) of the Customs Act 1901 (Cth), the maximum penalty for which is imprisonment for 10 years or a fine not exceeding $275,000 or both. The applicant was sentenced to imprisonment for a period of 18 months with a non-parole period of 12 months with a recognisance release order for his release after 12 months subject to the supervision of the Probation and Parole Service. The applicant had brought a number of CDs into Australia and was apprehended at the airport. One of the CDs contained 16 videos between 5 and 39 seconds long containing images of young boys engaged in sexual acts with adult males or each other, involving acts of oral and anal penetration and masturbation. Another CD contained 601 still images of young boys and girls engaged in sexual acts with adult males and females and/or each other, the boys appearing to range in age from 6 to 16 years with the majority aged between 8 and 11 years whilst the girls appeared to range in age between 6 and 14 years. The sentencing judge found (and it was not controversial) that the majority of the children were pre-pubescent, some being so young that they could not really have understood the manner of their exploitation. Full sexual penetration was depicted in many instances and, in at least one instance, the child displayed obvious and extreme pain. It was apparent also that the children were from extremely disadvantaged situations, looking thin and emaciated and probably without anyone to care for them. It is probable that they were deliberately targeted on this account.

37 One of the grounds of appeal was that the sentencing judge had given only limited weight to the applicant's prior good character. Johnson J noted (at [63]) that it is apparently a common feature of offences of this type that "the offender is otherwise of good character, is in good employment and of sound reputation" and added (at [64]) that there was a foundation for the approach that less weight should be attached to evidence of this kind in these cases, general deterrence being the "paramount consideration" in sentencing for this class of offence (citing R v Assheton (2002) 132 A Crim R 237). His Honour, in dealing with the ground of appeal that the sentence was manifestly excessive, set out (at [99]) the following factors, extracted from the authorities -

"(a) the nature and content of the pornographic material - including the age of the children and the gravity of the sexual activity portrayed ;

(b) the number of images or items of material possessed by the offender;

(c) whether the possession or importation is for the purpose of sale or further distribution;

(d) whether the offender will profit from the offence.

It might be worth noting, however, that the number of images as such may not be the real point. In a case of possession of child pornography for personal use only, the significance of quantity lies more in the number of different children who are depicted and thereby victimised."

38 Summarising the position, Johnson J said -

"[100] Whether an offence of importation of child pornography calls for a full-time custodial sentence will depend upon the facts and circumstances of the particular offence and offender. The Applicant's offence was objectively serious. This is not a victimless crime. The applicant took advantage of the sexual exploitation of children. This reflects a substantial level of moral turpitude. General deterrence is a paramount consideration and specific deterrence was a significant factor in the Applicant's case."

39 There was evidence of a relevant psychiatric condition, but this was discounted by the sentencing judge as a mitigating factor. Johnson J observed that personal deterrence was significant in the case given the applicant's implausible explanation for his conduct and his lack of insight; nor had remorse or condition been demonstrated.

40 In R v Booth [2009] NSWCCA 89 Simpson J (with whom the other members of the Court agreed) made the following general observations about the character of these offences which, with respect, are correct and useful -

"[41] In sentencing for such a crime, it is well to bear firmly in mind that the material in question cannot come into existence without exploitation and abuse of children somewhere in the world. Often this is in undeveloped or disadvantaged countries that lack the resources to provide adequate child protection mechanisms. The damage done to the children may be, and often is, profound. Those who make use of the product feed upon that exploitation and abuse, and upon the poverty of the children the subject of the material.

[42] What makes the crime callous is not just that it exploits and abuses children; it is callous because, each time the material is viewed, the offender is reminded of and confronted with obvious pictorial evidence of that exploitation and abuse, and the degradation it causes.

[43] And every occasion on which a child pornography site is accessed (or when such material is accessed by any means at all) provides further encouragement to expand their activities to those who create and purvey the material.

[44] It is for that reason that this is a crime in respect of which general deterrence is of particular significance."

(I should mention that it is common for non-pornographic sites to contain links to other sites dealing with similar or related matters and also display advertising and offer material for sale, so that the number of hits the initial site receives gives some economic advantage to the operator. It would be naive to suppose that similar considerations do not apply to child pornography sites. Accordingly, even where a person accesses a site and downloads images without payment, that access rewards the operator of the site and thus encourages the trade.)

41 The Crown appealed from the imposition of a s9 bond for one count under s91H(3) of the Crimes Act 1900 involving the possession of two hard copy images of child pornography (erotic posing), a computer disc with 76 images of sexual activity between children, two folders on the hard drive containing similar images and one movie file of six minutes of a child masturbating. There was a strong case that the respondent's commitment to rehabilitation was sincere and effective. The appeal was upheld and the respondent was sentenced to a non-parole period of 6 months with a balance of term of 18 months.

42 In Saddler v R [2009] NSWCCA 83 the offender had pleaded guilty to three counts of possessing child pornography with four further charges taken into account on a Form 1. He was found in possession of just under 19,000 image files, 300 movie files and just over 50 archive files containing images of children ranging in age from less than 12 months to early teens and ranging in classification on the COPINE scale from 1 to 10 (level 10, the most serious category, involving pain or sex with animals). Photographs included images of young children including babies performing sexual acts, of them being tied up, of them being penetrated by objects and of them performing sexual acts with animals. Video files contained movies of male and female children of various ages performing sexual acts with adults and other children. Further searches of the offender's premises led to the discovery of an external hard drive containing well in excess of 15,000 image files, 416 movie files and 24 archive photographs of child pornographic material, the images ranging from level 1 to level 10 on the COPINE scale. Almost 17,000 images were found on a laptop with images rated from level 1 to level 9 on the COPINE scale, together with a number of DVDs and CDs including well over 1,000 files ranging from level 5 to level 10 on the scale. The ages of the children involved ranged from below 12 months to teenagers. In all, thousands of children appeared in the more than 45,000 images and about 700 child pornography movies which the applicant had in his possession.

43 Buddin J referred to Gent (supra), Power v DPP (NSWDC, unreported, 19 July 2007), Mouscas [2008] NSWCCA 181, R v Leonard [2008] NSWDC 211, R v Elliott [2008] NSWDC 238 and R v Jones [2009] NSWDC 8. His Honour (the other members of the Court agreeing) concluded at [62] -

"Even allowing for the fact that the applicant had the material in his possession solely for his own private use, the total number of images, the ages of the children involved and the sheer depravity of what was displayed in the images compel the conclusion that these offences are properly to be regarded as falling into the upper echelons of this kind of offending. The analysis of other comparable cases serves to confirm that categorisation".

44 The offender had only limited insight into the seriousness of his offences and his account as to how he had come into possession of the material was "inherently unbelievable". There was no finding that the offender had good prospects of rehabilitation.

45 The sentence of a total of six years imprisonment with a non-parole period of four years and six months was reduced to an effective sentence of five years imprisonment with a non-parole period of three years and nine months.

46 I have set out the objective facts in Saddler in some detail to demonstrate that the opinion expressed by the sentencing judge that the applicant's case is worse than all of the cases to which he had been referred (including Saddler ) is, with respect, untenable.

47 It will have been seen that, in respect of the second count, the applicant was sentenced to a term of 4 years imprisonment, as against a maximum penalty of 5 years. Whilst, of course, reasonable minds can reasonably differ about the relative seriousness of an offence, I do not see, with respect, how the criminality demonstrated in respect of this count extended to somewhere near a case falling in the worst category.

48 As will be seen from the following proposed sentences, I have concluded that some measure of accumulation is appropriate, having regard to the different material involved in each count. I have allowed special circumstances only to the extent necessary to reflect the stipulated ratio in s 44 of the Crimes (Sentencing Procedure) Act 1999, recognising of course that that provision does not apply to Commonwealth offences. However, in all the circumstances, it seems to me that, on general principles, this ratio should apply to the sentences to be served by this applicant.

49 Accordingly, I propose the following orders -

(i) the time for lodging the notice of appeal is extended to 1 November 2010;

(ii) leave to appeal is granted; the sentences imposed on the appellant are quashed;

(iii) in respect of count 2 the applicant is sentenced to 2 years imprisonment commencing 11 March 2009 and ending on 10 March 2011 with a non-parole period of 1 year and 6 months commencing on 11 March 2009 and ending on 10 September 2010; and

(iv) in respect of count 1 the applicant is sentenced to imprisonment for 3 years commencing on 11 March 2010 and ending on 10 March 2013 with a non-parole period of 2 years commencing on 11 March 2010 and ending on 10 March 2012.

50 The overall effective sentence is therefore four years with a non-parole period of three years.

51 HALL J : I agree with the reasons and orders proposed by Adams J.

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Decision last updated: 06 July 2011