R v Stiller[2023] QCA 51

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  On 23 March 2022, Mr Stiller pleaded guilty in the District Court to one count of using a carriage service to access child abuse material between 23 June 2020 and 2 February 2021 (the subject offence) which was an offence against s 474.22(1) of the Criminal Code (Cth).  On the basis of Mr Stiller’s interview with police, it was believed that there were two further offences of using that were admitted by him. They were using a carriage service to access child pornography material contrary to s 474.19(1)(a)(i), (aa) and (b) of the Code between 1 October 2014 and 20 September 2019 (the first s 16BA offence) and using a carriage service to access abuse material contrary to s 474.22(1)(a)(i), (aa) and (b) of the Code between 21 September 2019 and 22 June 2020 (the second s 16BA offence) and dealt with by the learned sentencing judge pursuant to s 16BA of the Crimes Act 1914 (Cth) (the Act).
2. [2]
   For the subject offence, Mr Stiller was sentenced to imprisonment for three years and six months with a non­‑parole period of 12 months.  Mr Stiller applies for leave to appeal against the sentence on two grounds.  The first ground is that the sentencing judge erred in the application of s 16AAC(2) and (3) of the Act.  The second ground is that the sentence imposed was manifestly excessive.

Mr Stiller’s antecedents

3. [3]
   Mr Stiller was 37 years old during the period particularised for the subject offence.  He was aged between 31 and 36 years during the period particularised for the first s 16BA offence and aged between 36 and 37 years during the period particularised for the second s 16BA offence.  He had one prior entry in his criminal history when he pleaded guilty in the District Court on 9 May 2012 to using a carriage service to access child pornography material on 14 November 2010 for which he was convicted and released forthwith upon giving security by recognizance in the sum of $500 on the condition that he be of good behaviour for a period of five years and a conviction was recorded.  Mr Stiller commenced committing the first s 16BA offence almost two years and five months into that period of five years.
4. [4]
   A report from psychologist Mr Smith was tendered on the sentencing.  Mr Smith interviewed Mr Stiller on 7 September 2021.  Mr Stiller reported to Mr Smith that he had a history of looking at pornography beginning in adolescence and over time he was increasingly drawn to images of under-aged, post-pubescent girls.  He denied any attraction to children outside an online context.  His pornography use was similar to an addiction in that it served the role of an avoidance-style coping behaviour.  Mr Smith considered that Mr Stiller demonstrated insight into his emotional difficulties and the role of pornography use as a pattern of addiction to cope with issues he felt emotionally unequipped to deal with.  Mr Stiller expressed to Mr Smith appropriate remorse and shame for his offending behaviour.  Mr Smith noted that Mr Stiller did not present with any evidence of a major mental illness and did not meet the criteria for diagnosis with paedophilia, but his behaviour demonstrated a persistent pattern of sexual arousal to post-pubescent teenage girls from which he found it difficult to desist acting on by seeking out child abuse material online.  Mr Smith considered that was relevant to future supervision and warranted targeted intervention.  Mr Smith scored Mr Stiller as having a low to moderate level of risk for future sexual offending on the Risk of Sexual Violence Protocol.  Mr Smith considered ongoing treatment with a suitably expert clinician would be the most effective strategy for reducing Mr Stiller’s risk of reoffending.  Since that interview Mr Stiller had seen a forensic and clinical psychologist for treatment.

Circumstances of the offence

5. [5]
   In January 2021, Mr Stiller’s wife discovered that Mr Stiller was accessing pornography on their computer.  He confessed to his wife that he had continued to access child abuse material and they separated.  He also told his local church minister about what he had been doing.  The police were contacted by the church (and also by Mr Stiller through his solicitor).  The police executed a search warrant at his home on 4 February 2021 and seized his devices.  Mr Stiller was cooperative and confessed to the offending.  As had already been arranged by his solicitor, Mr Stiller participated in an electronic record of interview on 5 February 2021 and comprehensively confessed to his offending.
6. [6]
   Between 1 October 2014 and 31 October 2020 Mr Stiller used at least two different computers to connect his home internet service to access child abuse material on the internet.  Some weeks he would access child abuse material three or four times per week.  In other weeks, he would not access child abuse material at all.  Mr Stiller would create a private session on his internet browser (so his internet history was not tracked) and search either “nude teen” or “naked young girls” and would click on the links for the results until he came across child abuse material.  Mr Stiller would access and view images of naked girls between 12 and 17 years old.  His preference was children pictured alone.  Mr Stiller underwent a period of deterioration (as described by him) in November 2020 that he attributed to a crisis of conscience, but it had the effect of driving him to access child abuse material more frequently between 1 November 2020 and when he confessed to his wife on 6 January 2021.  He also started to download child abuse material during this period, because the online message board which he had previously accessed was no longer readily accessible, as it had moved to the “dark web” which was only accessible through specialised internet browsers.  Mr Stiller downloaded and installed such a browser for that purpose.
7. [7]
   Despite confessing to his wife on 6 January 2021, Mr Stiller accessed, downloaded and viewed child abuse material on 17 January and 2 February 2021 and on another unknown date between those two dates.
8. [8]
   The police had seized Mr Stiller’s laptop which was the most recent device that he had used to access and download child abuse material.  On a forensic examination of the laptop, there were about 140 unique images that fell within category 1 (nude images, no sexual activity) on the Oliver scale.  These images were consistent with the images which Mr Stiller had described downloading.  The prosecution accepted that these images were the remnants of the files that Mr Stiller had deleted and that Mr Stiller thereby did not knowingly possess them.

Relevant legislation

9. [9]
   It was common ground before the sentencing judge that Mr Stiller had to be sentenced in accordance with the mandatory minimum sentencing regime introduced into the Act by the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) (the Amending Act) which applied to relevant conduct occurring after 23 June 2020.  That explained why the commencement date for the subject offence was particularised as 23 June 2020.  The mandatory minimum sentencing regime applied to the applicant because the subject offence was within the definition of a Commonwealth child sexual abuse offence and his 2012 conviction was of a child sexual abuse as defined in the Act.
10. [10]
    The operative provisions of s 16AAB of the Act are:

3. “(1)
   This section applies in respect of a person if:

1. (a)
   the person is convicted of a Commonwealth child sexual abuse offence (a current offence); and

2. (b)
   the person has, at an earlier sitting, been convicted previously of a child sexual abuse offence.

3. (2)
   Subject to section 16AAC, if the person is convicted of a current offence described in column 1 of an item in the following table, the court must impose for the current offence a sentence of imprisonment of at least the period specified in column 2 of that item.”

11. [11]
    An offence against s 474.22(1) is listed in column 1 of the table contained in s 16AAB and the minimum sentence of imprisonment for that offence set out in column 2 is four years.
12. [12]
    Subsections (2) and (3) of s 16AAC of the Act provide:

“Reduction of minimum penalty

3. (2)
   A court may impose a sentence of imprisonment of less than the period specified in column 2 of an item of a table in section 16AAA or subsection 16AAB(2) only if the court considers it appropriate to reduce the sentence because of either or both of the following:

1. (a)
   the court is taking into account, under paragraph 16A(2)(g), the person pleading guilty;

2. (b)
   the court is taking into account, under paragraph 16A(2)(h), the person having cooperated with law enforcement agencies in the investigation of the offence or of a Commonwealth child sex offence.

3. (3)
   If a court may reduce a sentence, the court may reduce the sentence as follows:

1. (a)
   if the court is taking into account, under paragraph 16A(2)(g), the person pleading guilty—by an amount that is up to 25% of the period specified in column 2 of the applicable item in the relevant table;

2. (b)
   if the court is taking into account, under paragraph 16A(2)(h), the person having cooperated with law enforcement agencies in the investigation of the offence or of a Commonwealth child sex offence—by an amount that is up to 25% of the period specified in column 2 of the applicable item in the relevant table;

3. (c)
   if the court is taking into account both of the matters in paragraphs (a) and (b)—by an amount that is up to 50% of the period specified in column 2 of the applicable item in the relevant table.”

Sentencing remarks

13. [13]
    The sentencing judge recited the circumstances of the subject offence and the s 16BA offences from the statement of facts, noting that Mr Stiller gave detailed admissions which entitled him to the special leniency referred to in AB v The Queen (1999) 198 CLR 111.  The sentencing remarks also included the following.
14. [14]
    The s 16BA offences together with the subject offence formed a continuum of offending from 1 October 2014 through to 2 February 2021 which comprised a period of about six years and four months.  The plea of guilty was a continuation of the cooperation and evidenced remorse and some hope for Mr Stiller’s rehabilitation.  The commencement of the offending whilst he was subject to the recognizance order was an aggravating feature.  When sentenced in 2012, Mr Stiller had seen a specialised counsellor and strategies had been put in place so that he would not reoffend, but Mr Stiller admitted to the police that he did whatever he needed to do to obtain a light sentence on that occasion.  The sentencing judge had regard to the report from Mr Smith who noted that persistence and recurrence of Mr Stiller’s offending behaviour was one of the most significant risk increasing factors and who opined that Mr Stiller’s presentation did not support a diagnosis of paedophilia.
15. [15]
    The sentencing judge noted that s 16AAB of the Act required the head sentence to be a minimum of four years, unless the sentencing judge acted under s 16AAC(2) of the Act which allowed a reduction in accordance with s 16AAC(3).  The sentencing judge accepted the observations of McLure P (with whom Martin CJ and Mazza J agreed) in Bahar v The Queen (2011) 45 WAR 100 at [54] as to the effect of statutory minimum and statutory maximum penalties for the purpose of exercising the sentencing discretion.  The sentencing judge described his approach to these provisions as follows:

“I also accept that the setting of the statutory minimum period reflects an intention by Parliament to indicate that the least serious category of cases would be reflected by a sentence at that point. However, the point is I think well made by your advocate that in reality because of the discretion given by 16AAC that the actual minimum is one of two years.

I think the appropriate approach is to consider all of the matters in their entirety to assess what is in my view an appropriate sentence of the matter. If it be that sentence was less than the four years I would then be empowered, pursuant to section 16AAC, to reduce it to the point that I consider would be just in all of the circumstances. I have particular regard to a fact which has not been emphasised in any of the material that I have seen, and that is the use of the word, “only” in section 16AAC, subsection 2, which in effect says that I can impose a sentence of less than four years only if I consider it appropriate because of either or both of your cooperation in the investigation of the offence or because of your plea of guilty.

That is the approach that I take. That is, that I will consider what is just and appropriate according to usual considerations and then assess it against that scale that the legislature has provided.”

16. [16]
    The sentencing judge considered the only appropriate sentence was one of imprisonment.
17. [17]
    It was against Mr Stiller that his offending for the subject offence was committed over about six and one-half months and the overall offending was for a period of about six years and four months where some of that offending was committed whilst Mr Stiller was the subject of the recognizance.  The offending was not caused by some mental illness or psychological insult driving his behaviour.  The level of Mr Stiller’s cooperation followed through with the plea of guilty allowed for a finding of at least some degree of remorse as well as some prospects of rehabilitation which was evidenced in part by Mr Stiller’s seeking out psychological and psychiatric assistance.
18. [18]
    The sentencing judge expressly stated that the significance of Mr Stiller’s extensive cooperation justified a reduction of the head sentence to a point which was just in all the circumstances, because it was a level of cooperation which to some degree affected the objective seriousness of the offending.  The sentencing judge considered that the extensive cooperation was also “deserving of reflection in what is colloquially called the bottom of the sentence” as was the plea of guilty.
19. [19]
    The sentencing judge considered the appropriate head sentence was imprisonment for three and one-half years and described that as “just in all of the particularly unique circumstances of this matter”, while still reflecting the seriousness of Mr Stiller’s conduct.  In imposing that sentence for the subject offence, the sentencing judge stated:

“In doing that I act under section 16AAC, subsection 2 and in particular also under subsection 3(b), recognising that you had cooperated with law enforcement agencies in the investigation of the offence that is before the Court.”

20. [20]
    The sentencing judge also considered that “the justice of the situation” required that Mr Stiller be released on parole after serving 12 months and recorded that the non‑parole period was substantially less than the period that would have been imposed were it not for the matters that the sentencing judge referred to as being in Mr Stiller’s favour.

The effect of the statutory minimum sentence

21. [21]
    Bahar concerned the relationship between statutory minimum penalties for offences against the Migration Act 1958 (Cth) and s 16A of the Act.  The Court found (at [54]) that the statutory minimum and maximum penalties are “the floor and ceiling respectively within which the sentencing judge has a sentencing discretion to which the general sentencing principles are to be applied”.  The Court explained (at [55]):

“First, the minimum penalty is for offences within the least serious category of offending and the maximum penalty is for offences within the worst category of offending. I emphasise “category” of offending. There is no single instance at either extreme. Secondly, whether an offence falls within the least serious category is to be determined by reference to all relevant sentencing considerations, including matters personal to the offender.”

22. [22]
    The approach in Bahar has been followed throughout Australia in relation to mandatory minimum sentences under Commonwealth legislation, including in Karim v The Queen (2013) 83 NSWLR 268, R v Karabi (2012) 220 A Crim R 338 at [34]‑[36], R v Latif; ex parte Cth DPP [2012] QCA 278 at [22] and DPP (Cth) v Haidari (2013) 230 A Crim R 134.  The majority (Kennett and Rangiah JJ) in Hurt v The Queen [2022] ACTCA 49 at [156]-[157] applied the Bahar approach to s 16AAB of the Act.
23. [23]
    The Bahar approach was also applied in Western Australia in relation to a mandatory minimum sentence imposed under State legislation: Eldridge v Western Australia [2020] WASCA 66 at [50]-[51].
24. [24]
    Subsequent to the sentencing of Mr Stiller, the New South Wales Court of Criminal Appeal delivered two judgments that followed Bahar where s 16AAB of the Act applied: R v Delzotto [2022] NSWCCA 117 and Glasheen v R [2022] NSWCCA 191.
25. [25]
    The Crown successfully appealed in Delzotto against the offender’s sentences on the basis that the sentencing judge had failed to follow the Bahar approach and the aggregate sentence of imprisonment for three years and three months with a non‑parole period of two years and two months was manifestly inadequate.  The focus was on what was described as sequence 5 that on 1 July 2020 he possessed/controlled child abuse material in the form of data held in a computer or contained in a data storage device and accessed using a carriage service contrary to s 474.22A(1) of the Code for which the minimum sentence was specified as four years’ imprisonment and for which the maximum penalty was 15 years’ imprisonment.  Some 2,653 child abuse material files were the subject of sequence 5.  The sentencing judge assessed the objective seriousness of sequence 5 as being mid-range and that was not challenged on the appeal.  But for the discounts pursuant to s 16AAC of the Act for the guilty plea and the law enforcement cooperation, it was common ground that the sentencing judge had selected imprisonment for four years as the sentence for sequence 5 after allowing a 25 per cent discount for the guilty plea and a five per cent discount for the law enforcement cooperation which resulted in an indicative sentence for sequence 5 of imprisonment for two years and nine months.  The indicative sentence imposed on the offender for sequence 8 (which was an offence against s 474.22(1) of the Code committed between 5 October 2019 and 3 March 2020) was imprisonment for 18 months which took into account pursuant s 16BA of the Act the further offences described as sequence 7 (committed on 20 September 2019) and sequence 10 (committed between 27 June and 1 July 2020).  The aggregate sentence was the result of making the sentence for sequence 8 partly cumulative on the sentence for sequence 5.
26. [26]
    Adamson J (with whom Beech-Jones CJ at CL (with additional reasons) and R A Hulme J agreed) concluded at [76], [82], [88] and [90] of Delzotto that the Bahar approach should be applied to the statutory minimum in s 16AAB of the Act, even though there were provisions in s 16AAC of the Act for further reductions from the statutory minimum.  The Court also found (at [104]) that the aggregate sentence was manifestly inadequate, because in part the indicative sentence for sequence 5 did not adequately reflect its objective seriousness.  It was therefore necessary for the Court to resentence the offender in Delzotto.  On the basis of substantial subjective factors in mitigation, it was considered (at [111]) that a term of six years’ imprisonment was an appropriate “pre-discount sentence” for the sequence 5 offence.  The discount of 25 per cent for the guilty plea and five per cent for the law enforcement cooperation was applied resulting in the indicative sentence for sequence 5 of four years and two months.  On the resentence, it was held (at [112]) that a term of 18 months’ imprisonment was an appropriate “pre-discount sentence” for the sequence 8 offence and that resulted in an indicative sentence of one year after application of the discount of 30 per cent.  This resulted (at [113]) in an aggregate sentence of imprisonment of four years and six months to take account of the significant overlap between the conduct in sequence 5 and the conduct in sequences 7, 8 and 10.  On the resentence, the Court maintained (at [114]) the ratio between the head sentence and the non‑parole period fixed by the sentencing judge of two-thirds which resulted in a non‑parole period of three years.
27. [27]
    The offender in Glasheen had been sentenced before the appeal judgment was given in Delzotto for one count contrary to s 474.22(1) of the Code.  Section 16AAB of the Act applied to impose a mandatory minimum sentence of four years’ imprisonment, as the offender had been previously convicted of a child sexual abuse offence.  The sentencing judge had determined that the appropriate undiscounted head sentence was four years and six months and would have given the offender a combined discount of 30 per cent for his early guilty plea and cooperation with police but considered that the discount could be applied only if the undiscounted head sentence was four years.  The sentencing judge therefore did not give full effect to the discount and sentenced the offender to a term of imprisonment of four years with a non-parole period of two years and eight months.  On the appeal, the Crown accepted that it was not necessary for the sentence to be the mandatory minimum sentence, or even in the lowest category of objective seriousness, before the deductions in s 16AAC of the Act could be applied.  The offender was therefore resentenced.  Price J (with whom Beech‑Jones CJ at CL and Garling J agreed) at [32] reduced the head sentence to three years and one month after applying the 30 per cent discount to the undiscounted sentence selected by the sentencing judge of four years and six months.  The Court at [32] fixed a non-parole period of two years and four months to reflect the gravity of the offence and the rehabilitation of the offender.
28. [28]
    It is of note in both Delzotto and Glasheen that on resentencing the discounts for the guilty pleas and law enforcement cooperation were applied to the undiscounted head sentence, rather than to the period specified in column 2 for the item for the offence for which the offender was being sentenced set out in the table in s 16AAB of the Act as required by s 16AAC(3)(a) and (b).

What does the application of s 16AAC(2) and (3) of the Act require?

29. [29]
    It is necessary to construe s 16AAC to ascertain how it affects the exercise of discretion by the sentencing judge.  Mr Power of King’s Counsel who appeared with Ms McKenzie of counsel for Mr Stiller submits that the sentencing judge is now required to undertake the sentencing by reference to all the relevant factors provided for in s 16A(2) of the Act, except for paragraphs (g) and (h) of s 16A(2), and from the result, then reduce the sentence by the respective percentage amounts (if any) determined as appropriate under s 16AAC(3)(a) and (b).  It is submitted on behalf of Mr Stiller that the ability in his case for the sentencing judge to reduce the sentence by up to 12 months for the plea of guilty and up to a further 12 months for his cooperation necessitated that the factors in s 16A(2)(g) and (h) be given separate consideration in the sentencing process, as was undertaken by the NSW Court of Appeal in Delzotto and Glasheen.
30. [30]
    Ms Freeman of counsel who appeared with Ms Hughes of counsel for the respondent submits that s 16AAC should not be construed as mandating that particular approach for which Mr Stiller advocates, but submits the application of the provision can be more flexible, as long as the Court in arriving at the sentence has not reduced the sentence by more than 25 per cent of the period specified in column 2 of the applicable item in the relevant table for the plea of guilty or by more than 25 per cent of the same period for the law enforcement cooperation.  In contrast to the submissions that had been made on behalf of the prosecution to the sentencing judge, the respondent now submits that s 16AAC(2) and (3) do not require that separate consideration must be given to those two identified factors when determining the appropriate sentence but rather that, as part of the instinctive synthesis undertaken by the sentencing judge in determining the appropriate sentence, a court may reduce the sentence below the mandatory minimum, if the court considers it appropriate to give adequate recognition to those factors and the recognition that is given does not exceed that prescribed in s 16AAC(2) and (3).
31. [31]
    The construction of s 16AAC of the Act that Mr Stiller proposes is not required by the ordinary meaning of the provision.  The sentencing judge had been provided with the Explanatory Memorandum for the Bill which was enacted as the Amending Act.  Paragraphs 211 and 212 of the Explanatory Memorandum recite the operation of s 16AAC(2) and (3) in terms which merely reflect the language of the provision.
32. [32]
    It would not be wrong for a sentencing judge to employ the approach that Mr Stiller’s counsel suggests and that was applied in Delzotto and Glasheen, but the plain words of s 16AAC of the Act do not preclude the approach for which the respondent now submits.  Whatever approach is adopted, it must be apparent from the sentencing remarks that the reductions did not exceed those permitted by s 16AAC (calculated by reference to the period specified in column 2 of the applicable item set out in the relevant table).  It is not an error not to state the exact reductions but it is desirable to do so: cf Abreu v R [2020] NSWCCA 286 at [40].

Ground 1 – error in approach under s 16AAC(2) and (3) of the Act

33. [33]
    As the above summary of the sentencing judge’s sentencing remarks shows, his Honour was aware of the restrictions on reductions that could be made in the course of the sentencing process pursuant to s 16AAC(2) and (3) of the Act for the matters under s 16A(2)(g) and (h) of the Act in respect of sentencing Mr Stiller for the subject offence.
34. [34]
    In view of the content of the sentencing remarks and the ultimate head sentence imposed of three and one-half years, Mr Stiller has not shown that there was any error in the sentencing judge’s application of s 16AAC(2) and (3) of the Act.

Ground 2 – manifest excess

35. [35]
    The difficulty Mr Stiller faces in discharging the onus he bears to show his sentence is manifestly excessive is shown by the difference in the head sentence that he seeks to substitute of three years for that imposed by the sentencing judge.  The submissions which are advanced on Mr Stiller’s behalf on this ground make assumptions about the sentencing process that are not established.  The first assumption is that the sentencing had to proceed in the manner which Mr Stiller advances for ground 1 which has been rejected in this judgment.  The second assumption is that the sentencing judge gave him the maximum credit of two years off the head sentence for the s 16A(g) and (h) factors which may not necessarily have been the case.
36. [36]
    Mr Stiller relies on the resentencing undertaken respectively in Delzotto and Glasheen as yardsticks against which his sentence can be compared.  The nature of the offending in Delzotto was more serious offending than Mr Stiller, but it was committed over about nine months and not over the much lengthier period of Mr Stiller’s offending.  In considering the sentences imposed in Delzotto and Glasheen, account also has to be taken of the error referred to above of calculating the s 16AAC discounts by reference to the provisional sentences rather than the statutory minimum sentences.
37. [37]
    The sentence imposed on Mr Stiller in the circumstances of his case does not suggest it is “unreasonable or plainly unjust” to the extent that Delzotto and Glasheen can be used as yardsticks.  Mr Stiller has not discharged the onus of showing that his sentence was manifestly excessive.

Order

38. [38]
    It follows that the order which should be made is: Application for leave to appeal refused.
39. [39]
    DALTON JA: I agree with the order proposed by Mullins P and with her reasons.
40. [40]
    FLANAGAN JA: I agree with Mullins P.