R v KAT[2018] QCA 306

SUPREME COURT OF QUEENSLAND

1. [1]
   GOTTERSON JA:  I agree with the order proposed by Morrison JA and with the reasons given by his Honour.
2. [2]
   MORRISON JA:  The applicant, a practising solicitor, participated in the exchange of child pornography, or child exploitation material, on what is called the “dark web”.  That is a part of the internet used by those interested in the exchange and distribution of child pornography, often by peer-to-peer file sharing programs.
3. [3]
   By his own statements to other participants on the dark web, the applicant had been engaging in that area for that purpose for over 12 years prior to 2015.^[1]  Of course his history of activity on the dark web is distinct from the offences with which the applicant was charged, and to which he pleaded guilty, but it provides a context to the applicant himself, the offences, and the degree of sophistication he applied to protect his activity from scrutiny.  For example, the offences were committed at a time when he used a variety of software and encryption applications to facilitate and shield his use and exchange of the child exploitation material.^[2]
4. [4]
   There were four counts.  Count 1 was a Commonwealth offence of making child pornography material available using a carriage service with a circumstance of aggravation.^[3]  Count 2 was a State offence of making child exploitation material.^[4]  Counts 3 and 4 were State offences of possessing child exploitation material.^[5]
5. [5]
   On 8 December 2017, after a plea of guilty, the applicant was sentenced to:

   1. (a)
      Count 1: making child pornography material available using a carriage service with a circumstance of aggravation – 7.5 years’ imprisonment with a non-parole period of 4.5 years;
   2. (b)
      Count 2: making child exploitation material – 2 years’ imprisonment;
   3. (c)
      Count 3: possessing child exploitation material – 4 years’ imprisonment; and
   4. (d)
      Count 4: possessing child exploitation material – convicted and not further punished.
6. [6]
   The learned sentencing judge declared 262 days of pre-sentence custody as time already served and the sentences of imprisonment were to be served concurrently.  A non-parole period of four and a-half years was imposed.^[6]
7. [7]
   The applicant appeals the sentence imposed for the Commonwealth offence on the basis that it is manifestly excessive.

The applicant’s antecedents

8. [8]
   The applicant was aged between 54 and 55 years of age at the time of offending and 56 at the time of sentence.  At the time of his apprehension he was practising as a solicitor and previously worked as a school teacher.  The applicant had two young children who have lived with their mother, the applicant’s former wife, for the past three years.  The applicant was dating a woman who had an 11 year old daughter.
9. [9]
   He did not have a criminal record with the exception of a dated conviction for driving under the influence of alcohol.

Circumstances of the offences

10. [10]
    At around 5.00 pm on 17 November 2015, police executed a search warrant at the applicant’s home.  It was a single storey house with a verandah that had a locked gate.  The police repeatedly requested for the gate to be opened and the applicant eventually complied.  Once inside, the applicant lied to police, saying “no” when asked whether he had any child exploitation material or encryption on any computer or hard-drives.  The search warrant included an order that he also provide information necessary to access information stored electronically.
11. [11]
    During the search, police located child exploitation material on a computer.  When an officer went to view the material the applicant attempted to unplug the computer from the wall.  He was then restrained for the remainder of the search.
12. [12]
    The computer was connected to a large screen television and had three internal hard-drives.  Police also located a number of external hard-drives.  The applicant said he was the sole user of the computer.  The computer had active “BestCrypt” encryption software.  If the offender had succeeded in unplugging it, the encryption would have been activated and the police would not have been able to access the material without the applicant’s password.  The applicant provided police with access to his Dropbox, Gmail and Facebook accounts but refused to comply with the order that he provide passwords to the electronic evidence.  One encrypted folder contained 10 gigabytes of data.
13. [13]
    Police again attended the applicant’s home on 24 November 2015, when the applicant declined to participate in an interview.
14. [14]
    It was established that the applicant had been distributing child exploitation material by making it available on peer-to-peer file sharing platforms on the dark web,^[7] protected by anonymization software.^[8]  The applicant had posted 107 messages on child pornography related boards, requesting and responding to requests for child pornography.  A number of those messages included links to such material.
15. [15]
    In order to understand the type of material the schedule of agreed facts categorized the images and videos according to the Oliver Scale, which is reflected in the following table:

16. [16]
    On nine occasions between 25 December 2014 and 3 September 2015, the applicant uploaded a link or links to child pornography material on the dark web comprising 724 images and four videos.  The circumstances of those nine occasions are as follows:^[9]

    1. (a)
       the first posting occurred at the end of December 2014 or the beginning of January 2015 with an image of a 15 year old girl posing in swimwear and the title “Testing Security”, as well as the message “Can someone please tell me if I have any security holes here ahead of posting more?”  Having been told by one user that the applicant’s “cloaking device is fully engaged”, the applicant posted an image of a naked eight year old female with semen on her chest, and told users that he hoped “to be able to help the community here by responding to requests for material which I have”.  This was followed by 713 images of girls, mostly under the age of ten, which were almost all in category 3 and category 4; the images were mostly of young girls with semen in their mouths and on their faces, abdomens and breasts;
    2. (b)
       on a date between 14 January and 4 February 2015, the applicant provided a link to a category 4 video on a post requesting videos featuring double penetration; the video was of a girl about eight years old being anally penetrated by an adult man, whilst being vaginally penetrated by a vibrator;
    3. (c)
       on a date between 3 and 11 August 2015 the applicant posted a category 4 video to a board and requested a version of the video in its entirety; the video was of a girl about 12 years old being vaginally penetrated by an adult man;
    4. (d)
       on dates unknown between 28 and 31 August 2015, the applicant made three posts under a topic begun by him, totalling around 36 images and one video, ranging from categories 1 to 4 and featuring children aged from eight to 12 years old; the applicant said he was drooling over one set of images from a video depicting anal penetration (by a vibrator) of girls about 11 years old, saying also that he was dreaming of seeing the full video; on a related link the applicant asked if “anyone [who] has some free time and some hacking skills” could check for other videos, and “shield themselves inside a tank [to] test to see if these apparent links are real”;
    5. (e)
       on a date between 28 and 31 August 2015 the applicant posted a new topic to a board attaching links to two images depicting a girl aged about seven years old performing oral intercourse on an adult male and being vaginally penetrated by the adult male (category 3 and 4);
    6. (f)
       on a date between 29 August and 1 September 2015 the applicant posted a category 1 image of a girl aged about 10 years of age;
    7. (g)
       on a date between 29 August and 2 September 2015 the applicant posted a link to an animated image (category 6); the applicant defended his use of this animation when another user suggested he might look for material on another board, saying “I’ve been around for far longer than 12 years and I say this video is entirely appropriate for this board.  She is behaving in a highly sexualised manner which I’m sure almost all people visiting this page would enjoy”.
17. [17]
    Count 2 related to a two page typed story written by the applicant, describing interactions with two real people and entitled “I just met this woman with a gorgeous 11 year old daughter”,^[10] and counts 3 and 4 related to the possession of 8,735 images.  The majority of these fell into category 1 as they contained no sexual activity; 471 images fell into category 2; 1051 images showed non-penetrative adult intercourse; 895 images showed adults and children being penetrated; 35 images were in the category of sadism or bestiality (category 5) and there were two animations (category 6).  The images depicted various sexual acts with young girls, including adult men ejaculating in their mouths, adult men having sex with them, sodomy, anal penetration with sex toys, girls being bound and restrained, and dogs performing oral sex on girls.
18. [18]
    In the applicant’s possession was also 266 videos, of which 55 were category 1, 177 of them showed adult and child penetration (category 4), and four showed sadism or bestiality (category 5).  One video featured young girls being bound by ropes and raped by adult men.
19. [19]
    The true number of images and videos in count 2 was far more as the numbers listed related to computer files and some of those files contained up to 20 individual images each.  As the learned sentencing judge noted, one of the videos was three hours in length and included a rape.^[11]  In addition, the applicant possessed 2,193 stories subject to Counts 3 and 4, with themes of violence and incest.

Matters referred to by the sentencing judge

20. [20]
    The learned sentencing judge reviewed the nature of the offending conduct as revealed in the agreed schedule of facts.  In the course of that review her Honour referred to the posting of the 107 messages, saying:^[12]

“The posting of the messages is not part of what is charged against you; however, it is relevant to my sentencing considerations because it shows how involved you were in the online paedophile community and this is something which bears negatively on your prospects of rehabilitation.”

21. [21]
    The learned sentencing judge then referred to the story written by the applicant, observing that it described events overlapping with his real life:^[13]

“While only one story is involved in this count, the fact that what is in the story and what was happening … in your real life coincided or overlapped is something which I regard as particularly serious and as an escalation in your offending.”

22. [22]
    The learned sentencing judge then characterised the offending material and the applicant himself, in these terms:^[14]

“The type of images you enjoyed looking at showed children being humiliated – covered with semen – or children being hurt, doubly penetrated. There are themes in the material itself and in the messages you posted that the children enjoy what is happening and themes that the children encourage what is happening. You lack empathy for the children the subject of this material. You lacked empathy for the two real people associated with count 2.”

23. [23]
    Significantly, the learned sentencing judge held that the applicant had been dishonest with the court in the course of the sentencing process.^[15]  The dishonesty related to statements and instructions from the applicant, denying that he had been a member of an online paedophile community for some time.  The dishonesty extended to dishonest versions given to a psychologist and psychiatrist who were engaged to prepare reports for the sentencing.  Part of the further material filed by the Crown consisted of online statements by the applicant  showing he had been an active user of child pornography material and forums back to 2007, and even 1990.^[16]
24. [24]
    The learned sentencing judge said:^[17]

“In fact, I find the activity was not aberrant. You had sophisticated equipment and sophisticated systems to avoid detection. You had a large TV screen to set up to watch pornography on. You had a great deal of material. You had an interest in girls who were prepubescent and an interest in pornography which showed them humiliated and physically hurt. My findings, consistent with the statement of Mr Joch, is that you had had these interests for 16 years. You did not just look at this material when you were drunk or depressed in the wake of a marriage breakup. You posted it online and you did so as carefully as you could.

Of course, I bear clearly in mind that I am sentencing you only for possession and distribution during the periods charged. However, my factual findings which I have just recorded are important because:

(1) they very much reduce the weight of the reports you have tendered from Dr Morgan and Dr Butler and

(2) the dishonesty involved in the versions you have given to your treating psychologist, the forensic psychiatrist, your counsel and the Court show that, far from being remorseful … for your offending and prepared to sincerely engage in efforts to rehabilitate yourself so that you do not reoffend, you have taken a cynical attitude to these proceedings. When you thought the Crown only knew of a few of your boasting statements, you thought you would pass them off as untrue, that is, you thought you would take advantage of the Crown’s position and dishonestly minimise the extent of your sexual deviance in Court proceedings. Even when it became apparent you could not give evidence, you still persisted in instructing your counsel that the possession and distribution which comprised the offending were aberrant behaviour for you.

These matters bear very strongly on your prospects of rehabilitation. As I say, I do not accept you are remorseful for your conduct. I think you have taken a cynical attitude to these proceedings and been dishonest with the Court. This bears on whether or not you can be rehabilitated. I do not expect you will ever lose your sexual interest in children. It is a matter of whether or not you can learn to control your behaviour. Unless you are sincere in attempts to do so, you will never achieve this control. Having regard to what I have said, I do not see that you are presently remorseful or sincere about changing your ways.”

25. [25]
    Then, having rejected the conclusions in the psychologist’s and psychiatrist’s reports because they were based on the applicant’s lies, her Honour continued:^[18]

“As I say, at the moment I do not think you are remorseful. I do not think you take responsibility for your offending. And until you are both of those things you will not be in a position to begin therapy with the sincere aim of preventing reoffending. This bears on my assessment of your prospects of rehabilitation.”

26. [26]
    There is no challenge to the findings set out in paragraphs [23] to [25] above.
27. [27]
    The learned sentencing judge referred to the applicant’s irrelevant criminal history, the sophisticated nature of the offending, the fact that the material posted “was available to anyone who cared to learn how to access the dark web”, the applicant’s lack of cooperation, and his “dishonesty with the psychologist, the psychiatrist, your own counsel and the Court”.
28. [28]
    Her Honour noted that in his favour, the applicant did not profit in a monetary sense from his offending.
29. [29]
    The applicant’s past occupations as a teacher and a lawyer were pointed to by the learned sentencing judge as making the offending more egregious,^[19] and that as he would no longer be able to be employed as either a teacher or a lawyer, they did not bear positively on rehabilitation as such a work history may have done.
30. [30]
    The learned sentencing judge reviewed the comparable cases relied upon by the parties, including R v Lyons,^[20] R v Linardon,^[21] and R v Howe.^[22]  Also referred to were R v Edmondson,^[23] R v Schultz^[24] and R v Black.^[25]
31. [31]
    Her Honour considered Lyons to be a less serious case as (i) the total images possessed or transmitted were considerably less, (ii) the transmission was to particular people, (iii) the time period was less (three months), and (iv) there were better prospects for rehabilitation.  Linardon was also considered to involve objectively less serious offending as (i) the time period was less, (ii) the transmission was to known email accounts, and (iii) the total of images and videos was less.  Her Honour considered that Howe was distinguishable as (i) the offender was much younger and had already embarked on treatment, (ii) the amount of pornography accessed and possessed was much smaller, and (iii) there was demonstrated remorse and cooperation.

Submissions

32. [32]
    Mr Mac Giolla Ri, for the applicant, referred to the comparable cases of R v Lyons,^[26] R v Linardon^[27] and R v Howe,^[28] which were considered by the learned sentencing judge, and submitted orally that the applicant should not have received a sentence necessarily any greater than that handed down in Lyons.  With regard to these comparable cases, the appropriate sentence on Count 1 was six years imprisonment with a non-parole period of three years.
33. [33]
    The learned sentencing judge erred in failing to adequately reflect the utilitarian value of the early plea of guilty benefit in the sentence imposed.  There is no mention in the sentencing remarks as to exactly how the plea of guilty was taken into account in fashioning the sentence.  Reliance was placed on DPP (Cth) v Thomas; DPP (Cth) v Wu.^[29]
34. [34]
    It was also orally submitted that there was a risk that in considering the sentence for Count 1, the aggravated transmission charge, and the seriousness of that charge, there was an aggregation of the possession charges (Counts 3 and 4).  Mr Mac Giolla Ri conceded in relation to this that he could not point to any particular error but noted that whilst the number of images transmitted was greater in the applicant’s case than in Lyons, a smaller number of videos was transmitted.
35. [35]
    Mr Crowley, for the Crown, characterised the applicant’s offending as much more serious than that in Lyons, as the applicant promoted himself as an active member of the online paedophilic community, “swapping and advertising the material”,^[30] and there existed a degree of sophistication and organisation that contrasted his offending with other cases.  Further, Lyons can be distinguished also on the subjective circumstances of the applicant in that case, who sought psychiatric help of his own accord.
36. [36]
    Mr Crowley submitted that rather than looking at numerical equivalence of material possessed or shared between this case and comparable cases, the more significant sentence imposed on this applicant is demonstrated to be correct by the application of the principles that apply to these types of offences.  With those principles in mind, as well as the relevant nature and circumstances of the offending and the applicant, the sentence imposed does not compel a conclusion that there has been a misapplication of principle in the exercise of the learned sentencing judge’s discretion.
37. [37]
    It is submitted that the learned sentencing judge clearly took into account the objective utilitarian benefit of the applicant’s plea of guilty, and that plea could not be considered as anything more than “recognition of the inevitable” due to the lack of remorse shown by the applicant.  The sentence imposed for Count 1 was obviously intended to reflect the total criminality of the applicant’s offending.

Discussion

38. [38]
    The applicant contended that the difference in the numbers of images and videos as between Lyons and the present case demonstrated that the non-parole period to which the applicant was sentenced was in error, and rendered the sentence manifestly excessive.  In my view, that contention, implying as it does that numerical equivalence was not only relevant but determinative, should be rejected.
39. [39]
    In R v Pham,^[31] the High Court referred to the need for consistency in sentencing federal offenders as well as the relevance of numerical equivalence:

“(2) The consistency that is sought is consistency in the application of relevant legal principles.^[32]

3. (3)
   Consistency in sentencing for federal offenders is to be achieved through the work of intermediate appellate courts.^[33]

3. (4)
   Such consistency is not synonymous with numerical equivalence and it is incapable of mathematical expression or expression in tabular form.^[34]”

40. [40]
    A comparison of the amount of child pornographic material disseminated or possessed by like offenders is to be carried out on the basis of an objective assessment of the seriousness of the offence.  In R v Minehan^[35] the New South Wales Court of Criminal Appeal considered how offences relating to child pornography were to be assessed:

“R v Gent [2005] NSWCCA 370; (2005) 162 A Crim R 29 was concerned with an offence of importation of child pornography.  Johnson J (McClellan CJ at CL and Adams J agreeing) reviewed relevant authorities before concluding the following as to factors bearing upon the assessment of the objective seriousness of offences of possessing or importing child pornography.

[99] … a range of factors bear upon the objective seriousness of an offence of possession or importation of child pornography.  These factors include:

1. (a)
   the nature and content of the pornographic material – including the age of the children and the gravity of the sexual activity portrayed;

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

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

4. (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.”^[36]

41. [41]
    Further, the quantity of images possessed or distributed is but one of the factors to be considered when comparing like cases.  In Howe this Court outlined general sentencing principles for offences of this nature,^[37] as did the New South Wales Court of Criminal Appeal in Lyons.^[38]  They include, among others, the following:

    1. (a)
       of paramount importance is general deterrence and denunciation, with limited weight to be given to prior good character;^[39]
    2. (b)
       the possession of child pornography material creates a market for the continued exploitation of children,^[40] and as such is not a victimless crime;^[41]
    3. (c)
       the subjective circumstances of an offender must not overshadow the objective gravity of the offences;^[42]
    4. (d)
       the degree of planning, organisation or sophistication used by the offender in disseminating material can be taken into account;^[43]
    5. (e)
       in a case of dissemination, the number of persons to whom the material is distributed is relevant;^[44]
    6. (f)
       in a case of possession, the significance lies more in the number of children depicted than the number of images or items of material;^[45] and
    7. (g)
       issues of concurrence, accumulation and totality ought to be considered when sentencing for offences of this nature.^[46]
42. [42]
    These matters were considered by the learned sentencing judge in this case.^[47]
43. [43]
    Lyons involved a relatively young offender who pleaded guilty to 10 offences relating to child pornography, including an offence of aggravated transmission.  He was found to be in possession of around 350 files, the majority of those in category 1.  In relation to the charge of aggravated transmission, on four occasions he made available child pornography material via email to a total of 161 recipients.^[48]  Each email contained between one and 14 links to such material, comprising of 134 images and 10 videos (category 1), two images (category 2), seven images (category 3), two images and 60 videos (category 4) and nothing in category 5.  The material involved a majority of victims aged between five and 15 years of age.  On appeal, he was sentenced overall to six years and three months imprisonment with a non-parole period of four years and six months.^[49]  On the aggravated transmission count, he received four years and six months imprisonment.
44. [44]
    In dealing with Lyons, the learned sentencing judge determined that the total number of images possessed in that case was considerably less than the total in the present case, and with regard to the aggravated transmission offence, “the number of total transmissions he made appears to be similar to the number … made [here], but the number of images transmitted by Lyons were much fewer”.  Further, it was noted that the transmissions made by Lyons were to particular people, rather than posted on dark web messaging boards as in the present case, and covered a period of three months rather than nine.  On this analysis, the learned sentencing judge considered Lyons to be objectively less^[50] serious than the offending of the applicant.
45. [45]
    I respectfully agree with those comments.
46. [46]
    As was stated in Lyons, “objective seriousness is an assessment of where the case lies on the ‘spectrum’ that extends from the least serious instances of the offence to the worst category of offending”.^[51]  And, it is true to say that the particular nature and content of material is important in considering the gravity of each case,^[52] and that is ordinarily assessed on the Oliver scale outlined in the table above at paragraph [15] above.
47. [47]
    Bearing in mind the foregoing, one can draw some comparisons between the present case and Lyons, and in so doing I will focus on the aggravated transmission offences, as they attracted the greater sentence in each case.
48. [48]
    On appeal, the offending in Lyons in relation to the aggravated transmission offence was considered to be “within the mid-range”, having regard to the number of recipients (161) to whom the four emails were sent,^[53]  and noting that whilst almost all of the image files were in category 1,^[54] the majority of the video files (60 out of 70) were in category 4, i.e. depicting adult and child penetration.
49. [49]
    With regard to the aggravated transmission charge in the present case, over nine separate occasions the applicant made a total of 724 images^[55] and four videos available on the dark web.  Of that total, 727 images, or 96 per cent, fell within category 3 and 4.  Of the four videos, three were in category 4.  By sharing that material on peer-to-peer file sharing platforms, it could be viewed by an unlimited amount of people.  Nine occasions were particularised, more than double the four occasions in the case of Lyons.  Those nine occasions involved multiple posts in some instances, and occurred over an eight and a-half month period.  Further, the applicant utilised anonymization software to do so, and he also had cleaning, encryption and anonymization software on his computer.
50. [50]
    Whilst more video files were sent in Lyons, and those videos were in the nature of category 4 material, vastly more images were sent in this matter and a large number of those images (2,417) fell into category 3 and 4.
51. [51]
    The number of files in the possession of the applicant in this matter reached a total of 11,194, compared to 390 files in Lyons.^[56]  The applicant was sentenced to four years’ imprisonment for the possession count.  However, the extent of the offending charged under that count also went to the learned sentencing judge’s conclusion that the applicant had been a dedicated member of the online paedophile community^[57] and that was relevant to the consideration of the totality of the applicant’s offending as compared to that in other cases.
52. [52]
    In my respectful view, it was correct of the learned sentencing judge to find the offending with regard to the Commonwealth offence in the applicant’s case to be far more serious than that in Lyons, particularly based on the number of occasions, the infinite audience and the sophisticated nature of the set-up behind the transmission of the material.
53. [53]
    Further, unlike the applicant, the offender in Lyons had significant subjective mitigating circumstances, notably “a diagnosed sexual disorder involving an addiction to pornography for which he was obtaining treatment over a nine month period until he could no longer afford it” where he eventually relapsed after a period of 18 months.^[58]  Further, he was found to be remorseful for the offending.  These factors went to personal deterrence and contrast starkly with the pervasive dishonesty and lack of remorse found in this case.
54. [54]
    A sentence is not established to be manifestly excessive merely if the sentence is markedly different from other sentences in other cases.  As emphasised in Hili v The Queen,^[59] a range of sentences found in comparable cases is not determinative of the upper and lower limits of the sentencing discretion.  For the reasons above, I reject the submissions made by Counsel for the applicant that the sentence in Lyons evidences manifest excess in the sentence imposed upon the applicant in this case.  Rather, Lyons supports a significantly higher sentence being imposed upon the applicant due to the objectively more serious nature of offending, the longer period over which it occurred and the applicant’s lengthy history as a contributor to the online paedophile community.  His dishonesty and complete lack of remorse, so dissimilar to the subjective circumstances of the applicant in Lyons, could not have resulted in the imposition of a lesser sentence, as occurred in Lyons on appeal.
55. [55]
    An examination of the other two cases put forward by the applicant support that conclusion.  In R v Linardon,^[60] the offender was also a mature man charged with five counts of offences relating to child pornography, including one count of aggravated transmission.  In relation to that count, on three occasions during a period of one month, 86 files were transmitted to 10 email accounts, the majority of those category 1 images and videos.  He received three years’ imprisonment for that offence.  The Crown appealed on the ground of manifest inadequacy.  The total sentence imposed on appeal was one of five years’ imprisonment with a non-parole period of three years.  The applicant in that case also pleaded guilty to the offence of using a carriage service to transmit an indecent communication to a person under the age of 16 years, contrary to s 474.27A of the Criminal Code (Cth).  The communications to the child were characterised as “of the most degrading and humiliating kind” and therefore totality concerns gave rise to the higher total sentence.
56. [56]
    R v Howe featured a younger offender who was sentenced to four years imprisonment with a non-parole period of one year and nine months on a count of aggravated transmission where he made 58 images available on a peer-to-peer file sharing program.  The majority were category 1, with nine images at category 3 and 11 at category 4.  The offending occurred over two separate periods, one of five months duration and the second of four months.  He had possessed a profile on that program for around five years.  Prior to being charged, the applicant in Howe shut down a child pornography carriage site and had sought treatment since being charged.  This Court declined to interfere with the non-parole period.  The offending in this matter is far more serious and extensive than that in Howe.
57. [57]
    The maximum penalty for the Commonwealth offence is 25 years imprisonment, reflecting the seriousness with which the Commonwealth Parliament views these types of offences.  It is plain that this aggravated offence is intended to capture offenders involved in networks like the applicant was.  The objective seriousness of the offending in this case was greater and more serious than that in Linardon, Lyons or Howe.  The problematic factor that two real people were associated with count 2 also bore weight on the applicant’s rehabilitation and his risk of re-offending, as well as the lack of mitigating factors.  A head sentence higher than that imposed in Lyons was appropriate due to the totality of the offending.
58. [58]
    Moreover, a factor in the applicant’s case, absent from the others, is the dishonesty referred to in paragraphs [23] to [25] above.  Significantly, as the learned sentencing judge found, that dishonesty extended to the sentencing hearing itself, and was an attempt by the applicant to secure a sentence on a false basis.  That conduct is far removed from that of the offender in Lyons, and supports the sentence imposed here.
59. [59]
    Whilst higher, an overall sentence of seven and a half years is not far removed from the six to seven years postulated by Mr Mac Giolla Ri on behalf of the applicant, whose real challenge was to the greater non-parole period when compared to that in Lyons.  But when regard is had to the persistent and sophisticated nature of the offending, its objective seriousness in terms of the infinite audience to which images and videos in all categories were made available, the applicant’s attempts to dishonestly minimise his conduct before the sentencing court, and the correspondingly low prospects of rehabilitation, it is evident that the offending in this case surpassed that involved in Lyons.  It is true that a lesser sentence could have been imposed but that does not compel a conclusion that there has been a misapplication of principle in the exercise of the learned sentencing judge’s discretion, as required by R v Pham.^[61]
60. [60]
    It remains to refer to the contention that the learned sentencing judge failed to adequately reflect the utilitarian value of the early plea of guilty.  It was said that it was referred to in passing, however I reject that as the proper characterisation of what was said in the following passage:^[62]

“You have pleaded guilty to these offences in this Court, and the committal in the Magistrates Court was a hand up committal.  As discussed, I do not regard this as indicating remorse.  No doubt, however, … it has caused savings in public money and perhaps obviated some additional distress to the real people who were involved in the offending at count 2.”

61. [61]
    Under s 16A(2)(g) of the Crimes Act 1914 (Cth), the fact that the plea was entered must be taken into account in sentencing.  Remorse and contrition is to be considered separately.^[63]  R v Xiao^[64] considered whether, in assessing the discount for the utilitarian value of the plea in sentencing for a federal offence, the learned sentencing judge should specify the quantum of such discount in his or her judgment.^[65]  It was held that whilst desirable, there is no obligation of a sentencing judge to do so.^[66]  In my view, the learned sentencing judge intended, by what was said in the passage above, to reflect the utilitarian benefit of the plea of guilty confined as it was to the mere fact of the plea, being made in the face of the overwhelming evidence of the applicant’s lack of remorse and cooperation.  Unlike DPP (Cth) v Thomas^[67] the benefit was recognised and allowed, and the fact that the exact amount of discount applied was not stated does not bespeak error.
62. [62]
    The applicant also contended that the learned sentencing judge took as a starting point, before allowing a reduction for the early plea, a head sentence of eight to nine years imprisonment.^[68]  I do not disagree with this proposition.  During oral submissions below the learned sentencing judge and Counsel discussed the imposition of a non-parole period for the aggravated transmission offence which would incorporate the periods of imprisonment imposed for the State offences,^[69] which were rightly characterised by the learned sentencing judge as significantly serious.  Ultimately, the applicant will be required to serve 60 per cent of his sentence.
63. [63]
    In Lyons, the overall sentence imposed following an appeal was six years and three months’ imprisonment with a non-parole period of four years and six months.  A similar non-parole period was imposed here.  The higher head sentence was intended to reflect the totality of the applicant’s offending, as is made clear from the learned sentencing judge’s comments to Counsel^[70] and in her analysis of the comparable cases within her sentencing remarks.  Further, the paragraph reproduced above at paragraph [60] refers to the consideration given by the learned sentencing judge to the plea of guilty and the benefit that was to be given to the applicant.  Such a structure was within the sentencing discretion and does not demonstrate an error on behalf of the learned sentencing judge.

Conclusion

64. [64]
    There being no merit in the challenges to the sentence, I would refuse leave to appeal.
65. [65]
    HENRY J:  I have read the reasons of Morrison JA.  I agree with those reasons and the order proposed.