[1] MARGARET McMURDO P: I agree with Mullins J's reasons for refusing both the application for leave to adduce further evidence and the application for leave to appeal against sentence.

[2] GOTTERSON JA: I agree with the orders proposed by Mullins J and with the reasons given by her Honour.

[3] MULLINS J:  The applicant pleaded guilty to one count of fraud as an employee to the value of $30,000 or more, one count of stealing as a servant, one count of using a carriage service to access child pornography material and one count of possessing child exploitation material (CEM).  On the fraud charge he was sentenced to imprisonment for a period of four years to be suspended after serving 16 months for an operational period of four years.  He was given concurrent sentences for the other three offences.  For the stealing offence, he was sentenced to imprisonment for 16 months to be suspended after serving four months for an operational period of 16 months.  In relation to the Commonwealth offence of using a carriage service to access child pornography material, he was sentenced to imprisonment for 12 months to be released after serving four months, upon giving security by recognizance in the sum of $1,000 on condition that he be of good behaviour for a period of 12 months, and that sentence was ordered to start on the day of sentence of 18 January 2012.  For possessing CEM, the applicant was sentenced to imprisonment of 12 months to be suspended after serving four months for an operational period of 12 months. 

[4] The applicant applies for leave to appeal against the sentences imposed on the basis that they were manifestly excessive in all the circumstances and that he was given incorrect legal advice.  The applicant also applies for leave to adduce further evidence that was available at the time of his sentencing, but which he complains his solicitor did not present to the court.  The applicant was represented by both solicitor and experienced counsel on his sentencing, but appeared for himself in this court. 

The offending

[5] In August 2010, the applicant’s employer Yamaha Motors Australia Pty Ltd (Yamaha) alleged that its products were being sold on eBay for reduced prices and a further investigation showed that it was the applicant who was selling these products in his own name.  When the police executed a search warrant at the applicant’s house, the applicant declared a number of goods that belonged to Yamaha.  The Yamaha cost price of these items was $49,600.72.  These goods were the subject of the stealing charge.  The schedule of facts prepared for the purpose of the sentencing showed that the financial loss to Yamaha of the goods that had been sold on eBay and by other means by the applicant was $69,529.49 which yielded to the applicant $45,137.20. 

[6] The police also had received information from Yamaha in August 2010 about images found on the applicant’s work computer which were suspected of being CEM.  The police executed a search warrant at the applicant’s home and also found CEM on the applicant’s external hard drive and computer.  The applicant participated in an electronic record of interview and made full admissions to downloading CEM from the internet for a period of about three and one-half years.

[7] Upon analysis of the CEM, there were 4,743 unique CEM pictures of which the majority were in the least serious category 1 where no sexual activity is shown.  The pictures were of boys and girls ranging in age from three to 15 years.  There were 1,334 pictures in category 4 (penetrative sex with children) and there were 46 pictures in the most serious category 5 (sadism or bestiality with children).

[8] There was a full hand-up committal in respect of the fraud and stealing offences and the other offences proceeded by way of ex officio indictment.

The applicant’s antecedents

[9] The applicant was 31 years old when sentenced and had no prior criminal history.  The applicant is married and his wife has a child from an earlier relationship who is also a member of the household.  He had full time employment with another employer after finishing with Yamaha.

[10] A forensic psychological report was obtained from Dr James Freeman in relation to the child pornography and CEM offences.  Dr Freeman considered that the applicant had struggled with addictive tendencies that resulted in his becoming dependent on adult internet pornography and eventually evolved to include downloading images of underage children.  Dr Freeman was of the opinion that this behaviour did not originate from a sustained deviant sexual interest in child pornography or procuring sex from minors.  Dr Freeman noted the positive steps that the applicant had taken since being charged to overcome his addiction and avoid relapse and considered that his risk of reoffending could be considered in the low category.

[11] After being charged the applicant was referred to clinical psychologist, MrHodgson, who saw him on 12 occasions for treatment prior to sentencing.  In addition, the applicant had involved himself in a support group for persons with his type of addiction and a fellow member of the support group confirmed the applicant’s attendance at the support group in a letter tendered at the sentencing.

The sentencing

[12] For the purpose of the sentencing, the applicant’s counsel had prepared written submissions that were provided the day before the sentencing to the learned sentencing judge together with Dr Freeman’s report.  Those written submissions accepted the schedules of facts prepared by the prosecution for the purpose of the sentencing.  The ultimate submission was that the applicant should be sentenced for the fraud to a term of imprisonment of between four years to four and one-half years to be suspended after a period of one-third of that term of imprisonment, on the basis that would reflect his overall criminality and subsume lesser concurrent sentences for the other offences. 

[13] At the outset of the sentence hearing, the prosecutor who had perused Dr Freeman’s report and the applicant’s counsel’s submissions accepted that Dr Freeman’s report indicated that the applicant “presents a profile of a basically decent person who has gone wrong, rather than a basically corrupt person.”  In relation to the sexual offences, the prosecutor’s submissions proceeded on the basis that the applicant was not deviant, there was no risk of his reoffending and that the applicant did have insight and remorse into his offending and had sought treatment.

[14] The sentencing judge proceeded on the basis that there were indications of a high level of cooperation by the applicant with the administration of justice, the applicant felt “tremendous shame and remorse” and there was a low level of likelihood of reoffending.  The sentencing judge noted that the fraud and stealing offences were committed over a period of about three years.  Reference was made to general deterrence being a significant factor in sentencing for the CEM and child pornography offences.  The sentencing judge acted on the submission made by the applicant’s counsel as to the appropriate way to structure the sentences and the effective sentence of four years’ imprisonment suspended after the applicant serves 16 months in prison accorded exactly with the submission made by the applicant’s counsel at the sentencing. 

Application to adduce further evidence

[15] During the hearing of the application for leave to appeal against sentence, the applicant was given the opportunity to seek an adjournment, if he wished to put before the court an affidavit dealing with his complaints against his solicitor.  He declined that opportunity.

[16] There were three categories of additional evidence that the applicant sought to adduce.  The first category comprised six references from his wife and other family members and a letter from the Department of Communities (Child Safety).  (One character reference from his brother-in-law was adduced at the sentencing.)  Another category of evidence was a letter that the applicant had written to the sentencing judge expressing his remorse, explaining the consequences of the charges for his family and the steps that the applicant had taken to address his offending behaviour.  The letter ends with a request to be spared time in gaol.  On perusing this material, there were good forensic reasons for the material not being tendered to the sentencing judge.  In any case, the favourable concessions made by the prosecutor about the applicant’s character which were not rejected by the sentencing judge made the material unnecessary.

[17] The last category of evidence sought to be adduced by the applicant is an analysis of the spreadsheet of eBay sales that were the subject of the fraud offences which the applicant uses to allege that Yamaha had overstated the cost price for Yamaha of some of those goods which would reduce the cost of the goods the subject of the fraud offence from $69,529.49 to $41,921.22.  The applicant states that he provided this analysis to his solicitor prior to his sentencing.  In view of the approach taken on behalf of the applicant at the sentence not to dispute the prosecution’s schedule of facts, it is not surprising that this analysis undertaken by the applicant was not tendered.  The applicant was sentenced on the basis of the overall amount involved in the dishonesty offences of $119,130.21 and that the dishonesty occurred over a period of about three years.  It was also relevant for the sentencing that, even though the applicant had made some $45,137.20 from sales of Yamaha’s goods, no restitution had been made by the time of the sentencing.  The dispute that the applicant raises as to some $27,608 of the Yamaha cost of the goods the subject of the fraud offence would not have taken the applicant’s offending out of the range that was relied on to fix the sentence for the fraud offence. 

[18] Apart from the fact that the evidence which the applicant now seeks to adduce was available at the time of his sentencing, it is not apparent that there was any miscarriage of justice by that evidence not being available at the sentencing or there would be any miscarriage of justice if that evidence were not considered on this application for leave to appeal against sentence.  The application to adduce further evidence should be refused.

Were the sentences manifestly excessive?

[19] During the hearing of this application the applicant did not wish to dispute the head sentence of four years for the fraud offence.  That was an appropriate concession:  see R v Eveleigh [2009] QCA 257 and the cases summarised in that decision.  It was an orthodox approach for the sentencing judge to impose a sentence for the fraud offence that was not at the lowest end of the range, in order to reflect the additional child pornography and CEM offences which were of a different character to the fraud and stealing offences, even though all offending was committed during the same period of three years. 

[20] The applicant’s complaint was about the date at which his effective sentence of imprisonment was suspended.  He wished to return to paid employment, so that he could do something about paying restitution to Yamaha and supporting his family and also resume treatment with the psychologist and participate in his support group which he had found beneficial. 

[21] The exercise of the discretion by the sentencing judge to suspend the longest term of imprisonment that was imposed after the applicant had served one-third of that sentence gave full recognition to the applicant’s guilty pleas and cooperation with the administration of justice.  The sentence as a whole reflected the need for both general and personal deterrence for the types of offending committed by the applicant.  Even though the applicant feels that he is not gaining anything from his continued incarceration and that the community would benefit from his return to gainful employment, the applicant’s view of the effect of his sentence overlooks the other purposes of sentencing.  The sentences imposed on the applicant were the result of a sound exercise of the sentencing discretion.  The sentences are not manifestly excessive in any respect, including the period of 16 months that the applicant is required to serve in actual custody.

Orders

[22] The orders which should be made are:

1. Application for leave to adduce further evidence refused.

2. Application for leave to appeal against sentence refused.