R v James[2024] QCA 142

SUPREME COURT OF QUEENSLAND

1. [1]
   DALTON JA:  I agree with the order proposed by Davis J and with his reasons.
2. [2]
   BODDICE JA:  I agree with Davis J.
3. [3]
   DAVIS J:  The applicant seeks leave to appeal against sentences imposed on him in the District Court on 20 December 2023 upon his conviction for 19 counts of making child exploitation material^[1] and one count of possessing child exploitation material.^[2]

The sentences imposed and the activation of an earlier suspended sentence

4. [4]
   On 18 March 2021, the applicant was convicted, on his pleas of guilty, of 11 counts of indecent treatment^[3] of four children.  There were various circumstances of aggravation alleged in relation to individual counts.  For reasons which are unnecessary to explore in this application, the sentences imposed on that day were reopened^[4] but the ultimate result was:

   1. an effective head sentence of four years was imposed;
   2. a declaration of presentence custody of 565 days was made;
   3. the sentences were suspended from 18 March 2021 for an operational period of four years; and
   4. the applicant was placed on probation for 29 months.
5. [5]
   As a result of the various orders, the period subject to suspension was about two and a half years.
6. [6]
   The current offending all occurred on 18 December 2022, within the operational period of the suspended sentences imposed in 2021.  The offending constituted both a breach of the suspended sentences and a breach of the probation order.  The applicant was in custody on remand from 18 December 2022 to 19 December 2023, a period of 367 days before being sentenced for the current offending.
7. [7]
   In relation to the current offending, the applicant:

   1. was sentenced, on each of the counts of making child exploitation material, to three years’ imprisonment;
   2. was sentenced on the count of possessing child exploitation material to 18 months imprisonment;
   3. those sentences were ordered to be served concurrently with each other but cumulatively on the suspended sentences;
   4. the suspended sentences were activated in full;
   5. the period of presentence custody of 367 days was declared as time served on the sentences for the 20 counts;
   6. eligibility for parole was set at 18 December 2024; and
   7. the breach of the probation order was found proved and the applicant was admonished and discharged.^[5]
8. [8]
   Also before the District Court on 20 December 2023 was a summary charge alleging a failure of the applicant to report in breach of s 50(1) of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004.^[6]  The judge convicted the applicant of the offence but took no further action.
9. [9]
   By the parole eligibility date of 18 December 2024, the applicant will have served:

   1. 565 days as presentence custody on the counts the subject of the suspended sentence.  That equates to about 18 and a half months;
   2. 367 days presentence custody in relation to the counts the subject of the present application.  That equates to about one year; and
   3. approximately one year from 20 December 2023 to 18 December 2024.
10. [10]
    In summary, the cumulative effect of the sentences imposed in 2021 and 2023 and the various orders made is:

    1. an overall effective head sentence of seven years’ imprisonment; and
    2. eligibility for parole after service of approximately three and a half years’ imprisonment.

Facts of the offending

11. [11]
    The 18^th of December 2022 was a Sunday.  On this Sunday in the height of summer, there were many young children in the area of the Wynnum Esplanade.
12. [12]
    It is not alleged that the applicant attended the esplanade with a preconceived intention to photograph children.  He told police that he went there to exercise.  However, he had with him a mobile telephone (which had a camera facility) and a smart watch.
13. [13]
    The applicant placed his telephone in his back pocket, with the camera pointing outwards.  The camera lens was positioned above the top of the applicant’s pocket.  He then identified various subjects of interest to which he would then turn his back.  In this way, he would aim the camera at the subject and then film the subject by controlling the telephone with the smart watch.
14. [14]
    The applicant had previously attended the area of the esplanade and suspicious citizens posted images of the applicant on social media.  On the day of the offending, he was recognised from these social media posts and a concerned citizen rang police.  Police arrived, located him and in due course arrested him.
15. [15]
    Although the applicant initially made denials to police, he provided the passcode for his mobile telephone and made admissions in a later interview.  He told police that he was sexually attracted to young children, both boys and girls.  He explained how he positioned his telephone in his back pocket and used his watch to control the filming.  He said that he would focus on the genitals of the children.  He told police that “normally” when he would photograph children, he would then go to a public toilet, masturbate and delete the footage.  On this occasion, he did not have that opportunity as police arrived.  He accepted that the photographs that had been posted to social media were photographs of him but asserted that apart from the current offending, he had not filmed any children since he was sentenced to prison in 2021.
16. [16]
    The particulars of the various images are as follows:

Grounds of appeal

17. [17]
    The applicant relied on two grounds of appeal namely:

2. 1.the sentencing judge erred in determining the sentence on the basis that the comparable cases were decided when the maximum penalty for making child exploitation material was five years’ imprisonment; and
3. 2.the sentence imposed was manifestly excessive.

Ground 1: misunderstanding of the comparable cases

18. [18]
    Sections 228A (involving child in making child exploitation material), 228B (making child exploitation material), 228C (distributing child exploitation material) and s 228D (possessing child exploitation material) of the Code were all enacted in 2005.^[7]  Those sections criminalise various activities concerning “child exploitation material” which is defined by s 207A as:

“child exploitation material means material that, in a way likely to cause offence to a reasonable adult, describes or depicts a person, or a representation of a person, who is, or apparently is, a child under 16 years–

1. (a)
   in a sexual context, including for example, engaging in a sexual activity; or
2. (b)
   in an offensive or demeaning context; or
3. (c)
   being subjected to abuse, cruelty or torture.”

19. [19]
    When enacted, offences against s 228B attracted a maximum of 10 years’ imprisonment and offences against s 228D attracted a maximum of five years’ imprisonment.^[8]  In 2013, both ss 228B and 228D were amended.  The maximum penalty for making child exploitation material in contravention of s 228B was increased from 10 years’ imprisonment to 14 years’ imprisonment and the maximum sentence for possessing child exploitation material rose from five years’ imprisonment to 14 years’ imprisonment.^[9]
20. [20]
    The sections were amended again in 2016.^[10]  By those amendments, both the offence of making child exploitation material,^[11] and the offence of possessing child exploitation material^[12] acquired a circumstance of aggravation if the offender “uses a hidden network or an anonymising service in committing the offence”.  In those circumstances, the maximum penalty for an offence against s 228B is 25 years’ imprisonment and for an offence against s 228D, 20 years’ imprisonment.  The maximum for an offence against s 228D without the circumstance of aggravation remained at 14 years’ imprisonment but the maximum for an offence against s 228B without the circumstance of aggravation increased to 20 years’ imprisonment.^[13]
21. [21]
    The 2016 amendments also introduced new ss 228DA, 228DB and 228DC, which created various offences against the use of “child exploitation material website[s]” and taking steps to avoid detection of offences that involve child exploitation material.
22. [22]
    The Criminal Code (Cth) contains various sections criminalising the use of carriage services to access, transmit and distribute material defined as “child abuse material”.^[14]  Various amendments to the Commonwealth Code have been effected such that the maximum sentence for some offences where aggravating circumstances are proved is now 30 years’ imprisonment.^[15]  Pursuant to ss 16AAA and 16AAC of the Crimes Act 1914 (Cth), there is a mandatory minimum term of imprisonment in relation to some of these offences.^[16]
23. [23]
    The increase in penalties no doubt reflects increasing concerns held by both the legislature and the public about the impact of this type of offending.  In the explanatory memorandum to the Serious and Organised Crime Legislation Amendment Bill 2016, the following was said about the amendments to the Code including sections 228B and 228D:

“The following amendments are made to the Criminal Code in response to the proliferation of child exploitation material over the internet, the increased use of technology to promote and distribute offending material as well as to conceal offending …”

24. [24]
    Two comparable cases were referred to the learned sentencing judge, being R v MBM^[17] and R v Rogers^[18].
25. [25]
    Rogers was an unsuccessful appeal against sentences imposed upon one count of making child exploitation material^[19] and two counts of knowingly possessing child exploitation material.^[20]
26. [26]
    Rogers lived with his wife, their infant child and his teenage step-daughter.  He owned a computer, attached to which was a camera which was activated by movement.
27. [27]
    In July 2007, police executed a search warrant on Rogers’ residence.  Police located hard drives containing 48,000 child exploitation images.  Of those, 41,000 were of children between the age of two and 15 years in sexualised poses.  There were a number of images involving the torture, cruelty or bestiality of young children and there were 553 images involving penetrative sexual activity.  The possession of that material constituted an offence against s 228D of the Code.
28. [28]
    The search also revealed still images of Rogers’ step-daughter in various stages of undressing.  It was accepted that the filming was inadvertent.  The movements of Rogers’ step-daughter had activated the camera.  Rogers though, took various still images from the footage and that constituted the making of child exploitation material.^[21]
29. [29]
    A second search of Rogers’ residence was undertaken by police about five months after the first.  Police located 1,094 child exploitation images and 20 child exploitation videos.  Some were particularly depraved.  Rogers was sentenced to four years’ imprisonment suspended after 10 months, which was not disturbed on appeal.^[22]
30. [30]
    Rogers’ offending occurred in 2007, well before the 2013 amendments.  Rogers faced a maximum of five years’ imprisonment for each of the two counts of possessing child exploitation material and a maximum 10 years for the count of making child exploitation material.
31. [31]
    In MBM, the offender faced one count of knowingly possessing child exploitation material^[23] and one count of making child exploitation material.^[24]  Those offences occurred in late 2009 and early 2010.  The offender faced the same maximum sentences as had Rogers.
32. [32]
    The offender in MBM made five homemade movies of his niece, aged 14, showering.  The offender’s brother filmed his nephew who was aged 11.  The possession charge particularised possession of images of both children.  The offender was sentenced to two years’ imprisonment to be suspended after eight months and that sentence withstood an application for leave to appeal.^[25]
33. [33]
    The applicant in this matter submits that:

2. 1.the learned sentencing Judge wrongly understood that the maximum penalty faced in Rogers and MBM was five years’ imprisonment; and
3. 2.discounted those two cases as comparables because of that understanding.

34. [34]
    In consequence, it was submitted that the learned sentencing judge erred and this Court must resentence.
35. [35]
    In R v Kilic^[26], the High Court considered principles which might justify a sentencing Court imposing the maximum sentence statutorily prescribed for an offence.  Bell J, Gageler J (as His Honour then was), Keane, Nettle and Gordon JJ followed a line of authority including Ibbs v The Queen^[27] and Elias v The Queen^[28] and observed:

“Where, however, an offence, although a grave instance of the offence, is not so grave as to warrant the imposition of the maximum prescribed penalty – as the offending was agreed to be here – a sentencing judge is bound to consider where the facts of the particular offence and offender lie on the “spectrum”  that extends from the least serious instances of the offence to the worst category, properly so called.  It is potentially confusing, therefore, and likely to lead to error to describe an offence which does not warrant the maximum prescribed penalty as being “within the worst category”.  It is a practice which should be avoided.”^[29] (emphasis added; footnotes omitted)

36. [36]
    There may be cases in which a misunderstanding as to the maximum sentence upon which comparable sentences were decided results in error.  In Rogers^[30], the sentence was four years on a spectrum of a possible 10 years.  If the sentencing judge thought that Rogers was a sentence of four years on a spectrum of a maximum five years, then her Honour may have thought the Court of Appeal assessed Rogers as being a more serious example of the offending than it in fact did.  The same logic can be applied to MBM.^[31]  It follows that if her Honour thought the present case involved comparable offending to Rogers and MBM, then the error could lead her Honour to regard the present case as falling higher within the spectrum of no imprisonment to 20 years’ imprisonment than is justified by the two comparables.
37. [37]
    However, the task which the sentencing judge was required to undertake was not a mere extrapolation of the results of the comparative cases to fit the wider spectrum now available for sentence.^[32]  The real question is whether the error has affected the sentencing discretion so as to cause an error in the circumstances of this particular case.^[33]
38. [38]
    During submissions, her Honour was referred to Rogers and MBM by the Crown Prosecutor appearing at the sentence and this exchange occurred:

“MS PENFOLD:  … I’ve provided your Honour’s Associate with two cases that – Rogers [2009] QCA 10 and MBM [2011] QCA 100.  They’re not on all fours, your Honour, but they indicate- - -

HER HONOUR:  Have you got a copy, because- - -

MS PENFOLD:  Yes, your Honour, I do.

HER HONOUR:  I did see one of them, but I don’t seem to have it.  So there’s only one case?

MS PENFOLD:  There’s two cases, your Honour:  Rogers and MBM.

HER HONOUR:  I think I saw – yes, Rogers, where the maximum penalty was much lower.

MS PENFOLD:  That so, your Honour.

HER HONOUR:  So probably provides – well, really provides no assistance at all.

MS PENFOLD:  MBM received two years’ imprisonment in relation to making CEM.  There were five films of a young girl undressing and showering, who was his 14 year old niece.  The Court of Appeal found that there was no error with respect to the making of the CEM charge.  And his sentence was suspended after serving eight months, for an operational period of two and a-half years.  He also had- - -

HER HONOUR:  This is MBM?

MS PENFOLD:  Yes, your Honour.

HER HONOUR:

Set aside the sentence imposed below and in lieu sentence the appellant to a term of imprisonment of 12 months to be suspended after serving three months.

MS PENFOLD:  That was in relation to the possession of the CEM.  And the making of the CEM remained the same.

HER HONOUR:  I see.  So the making carried a two-year sentence suspended after what?

MS PENFOLD:  After eight months.

HER HONOUR:  All right.  What was the maximum penalty at the time?

MS PENFOLD:  It was lower at the time, your Honour.  I believe it was - - -

HER HONOUR:  Five years and 10 years.  So it’s much lower and - - -

MS PENFOLD:  Yes.  There are - - -

HER HONOUR:  - - - again of very limited assistance.

MS PENFOLD:  There aren’t Court of Appeal cases that are of much assistance in this area.  What can be done with the defendant in this case, in my respectful submission, is that the suspended sentence ought be activated.  It’s not unjust for him to serve the entirety of that.  Your Honour is not required for the sentence today to be cumulative.  However, in my respectful submission, it should be, given the seriousness of the offending and the fact that he’s reoffended in a like way.  If your Honour were to sentence him to 18 months to two years with respect to the CEM- - -

HER HONOUR:  But where are you picking those numbers from?

MS PENFOLD:  Your Honour- - -

HER HONOUR:  Just out of nowhere?

MS PENFOLD:  It’s difficult to find cases for this particular type of offending.

HER HONOUR:  There’s single-judge decisions.

MS PENFOLD:  Yes, your Honour.

HER HONOUR:  All right.  Anyway – thanks.”

39. [39]
    The reference to “five years and 10 years” probably refers to the five years maximum then prescribed for an offence against s 228D of the Code and the 10 year maximum sentence for an offence against s 228B.  If so, that observation is correct.  What can otherwise be taken from the exchange is that, for more than one reason, her Honour considered MBM and Rogers to be of little, if any, assistance.
40. [40]
    No submissions were made about comparable decisions to her Honour by defence counsel.
41. [41]
    Before turning to her Honour’s sentencing remarks, it is appropriate to identify principles relevant to the role of comparatives in the sentencing process.  Principles of equal justice demand that, as far as possible, similar offending should receive similar retributive response.  Comparable sentences provide “… a yardstick against which to examine a proposed sentence”.^[34]  The comparable sentences are part of the mix of considerations in the sentencing process described as intuitive synthesis.^[35]
42. [42]
    In R v Goodwin; Ex parte Attorney-General (Qld)^[36], Mullins J (as her Honour then was) sitting in this Court considered the impact upon the sentencing process of a lack of comparable sentences.  Her Honour observed:

39. “[37]
    The lack of comparable sentences may deprive the sentencing judge of the assistance of “the yardstick” for testing the proposed sentence, but it does not preclude the sentencing judge from otherwise finding the relevant facts for the purpose of the sentencing, weighing up the relevant factors relating to the offence and the offender, and applying the principles of sentencing found in the relevant legislation and the common law, in order to reach the appropriate sentence for that offending.  The sentencing judge may very well find the exercise of the discretion to be more difficult, in the absence of, and without the usual assistance afforded by, comparable sentences, but as a matter of principle the sentencing judge will have available sufficient material from the evidence adduced on the sentence and the relevant law to undertake the well defined process of sentencing.”

43. [43]
    In sentencing the applicant, the learned sentencing judge dealt with the circumstances of the offending and the circumstances of the applicant’s prior convictions and then observed:

“In determining the appropriate penalty, I must have regard to the maximum penalty which Parliament imposes and, for the offence of making child exploitation material, it is 20 years’ imprisonment.  That indicates how very seriously our Parliament considers this sort of offending.  The comparable decisions that I have been referred to were determined at a time when the maximum penalty was five years’ imprisonment for this offence, so provide very little in the way of assistance in determining what the appropriate penalty is.” (emphasis added)

44. [44]
    It is this passage which the applicant submits shows error in that her Honour observed that the maximum penalty “for this offence” was five years’ imprisonment at the time Rogers and MBM were decided.  That observation is an error to the extent that the maximum sentence prescribed by Parliament for an offence against s 228B was then 10 years, not five.
45. [45]
    Sentencing remarks are a statement of reasons explaining the exercise of judicial discretion.  The sentencing judge is obliged to therefore give adequate reasons for the exercise of that judicial power.^[37]  However, as observed by Kirby J in AMS v AIF^[38]:

“… an appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition which is involved.  Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise or discretion or to require that it be re-exercised on a retrial.”^[39] (emphasis added; footnotes omitted)

46. [46]
    AMS v AIF was a family law case involving custody of children.  The comments of Kirby J are equally applicable, in my view, to the “large element of judgment discretion and intuition” involved in sentencing.^[40]
47. [47]
    Her Honour’s sentencing remarks, when reasonably and fairly viewed, show a conventional approach which is not infected by error.
48. [48]
    In the passage set out above^[41], her Honour had regard to the maximum penalty.  She then found that the comparable decisions “provide very little in the way of assistance in determining what the appropriate penalty is”.  Having made that observation, her Honour, consistently with the observations of Mullins P in Goodwin^[42], turned to consider the question of sentence by reference to first principles.  In the passage which follows, her Honour considered prospects of rehabilitation (which her Honour considered limited), the seriousness of the offending, the fact that the offending occurred in breach of a suspended sentence and a probation order, and considerations of denunciation and protection of the community.
49. [49]
    Her Honour then observed:

“In accumulating the sentence, I must have regard to the whole period of imprisonment that you will be subject to.  As I have indicated, the comparable decisions do not provide me any guidance as to what the appropriate sentence should be.  Had I been sentencing you without having to deal with the suspended sentence, I would have considered a sentence in the order of four to five years’ imprisonment would have been appropriate for this offending.  But I will moderate that, because I intend to impose a cumulative sentence, to three years’ imprisonment.” (emphasis added)

50. [50]
    In my view, a fair reading of the reasons leads to the inevitable conclusion that any error which may have been made as to the applicable maximum penalties at the time of sentence in the comparable cases has not affected her Honour’s reasoning, as the two comparatives in the end, formed no part of her Honour’s consideration of the appropriate sentences.
51. [51]
    It follows that there is no substance in ground 1.

Ground 2: the sentence is manifestly excessive

52. [52]
    On this ground of appeal the applicant seeks to adduce fresh evidence.  That evidence concerns the question of whether the applicant will be deported to New Zealand because of the current convictions.  It is said that he will suffer hardship as a result of deportation and that is relevant to sentence.
53. [53]
    There is a line of authority in this Court to the effect that the prospect of deportation may be relevant to sentence.  In R v GBD^[43], the Court followed its earlier decision in R v Norris; Ex parte Attorney-General (Qld)^[44] and concluded:

39. “[52]
    R v Norris; Ex Parte Attorney-General (Qld) is authority for the following conclusions:

1. (a)
   The legislative intent underlying the Migration Act and reflected in s 501CA(6) is that a person who fails the character test and is released from criminal custody would remain in immigration detention whilst revocation of a decision by the Minister to cancel the person’s visa is pursued.
2. (b)
   Street CJ’s conclusion in R v Chi Sun Tsui that “the prospect of deportation is not a relevant matter for consideration by a sentencing judge, in that it is the product of an entirely separate legislative and policy area of the regulation of our society” is “explained by, and limited to, the statutory context in which it arose and the particular issue which the court was addressing – that of the fixing of a non-parole period” under the New South Wales law applicable in that case.
3. (c)
   The prospect of deportation may be a relevant factor to be considered in mitigation of a sentence where it makes the period of incarceration more onerous and also where, upon release, the fact of imprisonment will deprive the offender of the opportunity of permanently residing in Australia, providing that the prospect of deportation or its impacts are not merely speculative.
4. (d)
   Even if the evidence before the sentencing judge does not justify a finding that deportation would harm the offender in either of those two ways, a sentencing judge should take into account when imposing a sentence the relevance of likely deportation on the efficacy of court ordered parole and the potential consequences of that for the offender.
5. (e)
   A sentencing judge should not adjust a sentence or impose a lesser sentence for the purpose of defeating, avoiding or circumventing the operation of the provisions in the Migration Act.
6. (f)
   That principle is not infringed by the adjustment of a sentence to take into account the risk of interruption to an offender’s rehabilitation that immigration detention beyond a fixed release date would entail.” (footnotes omitted)

54. [54]
    The Crown submitted that the recent decision of the High Court in R v Hatahet^[45] rendered consideration of the prospect of deportation an irrelevant consideration on sentence.  That submission should be rejected.
55. [55]
    In Power v The Queen^[46], the High Court considered provisions of legislation operative in the Australian Capital Territory which granted a discretion in the sentencing judge to fix a non-parole period.  The High Court held that the role of a sentencing judge was to apply the usual principles in relation to sentencing and then determine not only a head sentence but also “that minimum period for which, in [the sentencing judge’s] judgment, according to accepted principles of sentencing, the prisoner should be imprisoned”^[47].
56. [56]
    A line of authority up to and including Hatahet has determined that the judicial function is to determine the minimum non-parole period and the executive function vested in the parole authorities is to determine when the prisoner is actually released.^[48]  It follows that in exercise of the judicial discretion in determining the minimum term which a prisoner should serve, it is irrelevant that the parole authorities might detain the prisoner beyond that point.^[49]
57. [57]
    It does not follow that the likelihood or otherwise of the exercise of administrative power in general is irrelevant to sentence.  It is well established that factors which render a sentence more than otherwise onerous are relevant to the exercise of the sentencing discretion.  The prospect of deportation, as explained in Norris and GBD, is such a feature.
58. [58]
    The only mention of this issue at sentence was during defence counsel’s submissions:

“MR FEELY:  Yes.  One thing I should add, and it’s not – well, one thing I should add is he’s – Mr James is a permanent resident only, not a citizen of Australia.  I’m not sure I have an evidentiary basis, given those new ministerial directives, to say that he is a certainty of deportation.  In fact - - -

HER HONOUR:  One would have thought, if there was any substance to that, it would have happened already.

MR FEELY:  I would agree with that, your Honour.  But it’s perhaps worth noting that – well, it’s something I perhaps need to put on the record in any event.”

59. [59]
    The new evidence shows the applicant will suffer hardship if deported.  As to the risk of deportation the affidavit provides:

2. “11.At that appointment in March 2024, Sentence Management informed me that the prison had received a letter from Home Affairs.  That letter informed me that Home Affairs had decided to cancel my visa.
3. 12.The letter from Home Affairs was read aloud to me by someone from Sentence Management and I received some counselling.  I was not given a copy of that letter to keep.
4. 13.That letter invited me to “make representations about the possible revocation of the decision to cancel my visa”.  I understood this to mean that I could provide Home Affairs with reasons about why my visa should not be cancelled, and that they (Home Affairs) would consider those reasons.
5. 14.I remember writing some things down in an empty “text box” on a form about why I should be allowed to stay in Australia.
6. 15.I believe those reasons were sent back to Home Affairs in mid-to-late March 2024.
7. 16.On 30 April 2024, I received a letter from Home Affairs, confirming that they received my representations and were considering them.  Exhibit ‘BKJ-1’ to this affidavit is a true and correct copy of the letter that was sent to me by the Department of Home Affairs dated 30 April 2024.
8. 17.I have not received any further correspondence from Home Affairs, and I do not know when they will reach their decision.
9. 18.There is some further paperwork I need to complete for Home Affairs.  That paperwork requires me to provide detailed information about the names, ages, date of birth, and citizenship status of my extended family.  It is hard for me to complete this paperwork because I do not know this information off-hand and am not currently in contact with my family.”

60. [60]
    The letter of 30 April 2024 shows that the decision made earlier to cancel the visa is now under review.  A final decision has not been made.  In the circumstances, in my view, the new evidence has insufficient relevance to warrant its reception and I would deny the application to admit it on the appeal.
61. [61]
    The applicant submits that there are various features which render the sentence manifestly excessive.  In particular:

1. all the offences were committed on one day.  There was no extended period of offending;
2. none of the children were aware they were being filmed;
3. none of the children were induced or forced or encouraged to engage in sexual activity or posing;
4. the children were not harmed by the filming;
5. the videos were short;
6. the offences were not planned in the sense that the applicant did not travel to the esplanade at Wynnum with a preconceived intention to offend;
7. the offences were unsophisticated;
8. the applicant made admissions;
9. the applicant otherwise cooperated with police, for example he surrendered the electronic devices to police and provided the access codes; and
10. the applicant pleaded guilty.

60. [62]
    Those factors can all be accepted as mitigatory.  However, there are very serious aspects of the offending.  The legislative response to this type of offending has been hardening over the past two decades.  Maximum sentences under both State and Commonwealth legislation have increased substantially.  This, as the explanatory memorandum to the 2016 amendments^[50] explain, is in response to the proliferation of this type of offending.  It follows that considerations of public denunciation and both personal and general deterrence loom large.
61. [63]
    The applicant was, at the time of the current offending, a convicted sexual offender against children.  He was subject to a suspended sentence for serious offending against young children to which he had had access.  He was also subject to probation.  He recognises that he has a sexual attraction to children and must understand that he cannot act on that attraction.  A report as to the applicant’s performance on probation^[51] recorded the applicant’s failure to satisfactorily engage in psychological treatment.  Facing sentence on the current offending, he told a reporting psychologist that he was eager to receive treatment.^[52]  Evidence of rehabilitation is, at best, limited.
62. [64]
    Against that backdrop, he meandered through a heavily populated public leisure area, opportunistically taking photographs of young children for the purposes of sexual gratification.  His activities were obviously perceived as inappropriate and invasive, as a member of the public reported him to police.
63. [65]
    In my view, even after making due consideration to questions of totality relevant to the cumulation of the sentences upon the activated suspended sentence, a sentence of three years’ imprisonment could not be said to be manifestly excessive.  Of the five and a half years total sentence^[53], her Honour ordered the applicant to serve two years before being eligible for parole.  There can, in my view, be no valid complaint.
64. [66]
    I would dismiss the application for leave to appeal.