R v Horsfall[2024] QCA 144

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Crowley J.
2. [2]
   BODDICE JA:  I agree with Crowley J.
3. [3]
   CROWLEY J:  On 26 August 2022, the applicant pleaded guilty and was sentenced to 8 years and 6 months’ imprisonment in respect of 45 “child sex offences” under the Criminal Code (Cth).  A single non-parole period of 4 years and 3 months was fixed.
4. [4]
   The applicant seeks leave to appeal his sentence.  The sole ground of appeal contained in his application is that the sentence is manifestly excessive.
5. [5]
   The details of the particular offences for which the applicant was sentenced are:

6. [6]
   In accordance with the approach described in R v Nagy,^[2] the sentence of 8 years and 6 months’ imprisonment was imposed for the Count 4 aggravated offence as a global penalty intended to reflect the totality of the applicant’s criminality.  Lesser concurrent sentences were imposed for each of the other offences.

The nature and circumstances of the offending

7. [7]
   The full nature and circumstances of the applicant’s offending were set out in a detailed agreed statement of facts.  A brief summary follows.
8. [8]
   The applicant committed the offences between 17 February and 28 April 2020.  He first came to the attention of police when, on 23 February 2020, he engaged in a sexualised online conversation, via two social media applications, with a police investigator who was then posing as a 15-year-old girl (Count 1).  During that conversation the applicant enquired about and acknowledged the “girl’s” young age, told her she was “sexy”, suggested that they could meet for a date and he sent her a picture of his erect penis (Count 2).
9. [9]
   On 27 April 2020, police executed a search warrant at the applicant’s residence.  The applicant was home alone at the time.  Police located several electronic devices, which the applicant admitted belonged to him, including a laptop computer and a mobile phone.  A preliminary examination of the phone revealed that the applicant had the KIK Messenger application installed and opened.  Message threads associated with his account had titles such as such as "Ped Girls Nation" and "Childfriendly” and contained child abuse material.  Group chats associated with the account contained many image and video files that had been exchanged by various users, depicting children of various ages, but predominantly pre-pubescent, in different sexual settings.  The chats showed the applicant had posted text and media files of a similar nature to the groups.
10. [10]
    When questioned by police about the presence of the child abuse material on his devices, the applicant admitted that he was aware the material was on his phone; that he had sent child abuse material to users via KIK Messenger; that he was part of groups set up solely for the purpose of exchanging such material; that in order to maintain his position in those groups, he had to send child abuse material on a regular basis or else he would be kicked out of the group; that he would save child abuse material sent to him by other users in a cloud storage device known as Mega and would download these files to his computer; that he would repost the same material he received just to continue to be part of these groups and that he had created the Mega account to view these files and later paid for an increased level of access to Mega using his credit card, because the free account only stored 400MB of data.
11. [11]
    By way of purported explanation for his offending, the applicant told police that the child abuse material was, “Just some silly stuff that I was looking into.  Then sort of deleted it all”; that he was “Not really sort of interested in it”; that he did not obtain any sexual gratification from the material; that it was just something he was curious about while feeling lonely and that other people kept sending him stuff and adding him back to groups even when his curiosity had “phased out”.
12. [12]
    At the request of police, the applicant signed over access to his Mega and KIK accounts.  Police left the applicant’s residence with the seized devices.
13. [13]
    Following further examinations of the devices and a review of the applicant’s Mega account, which revealed the presence of more child abuse material kept in various folders, police returned to the applicant’s residence on 23 July 2020 and again spoke to him.
14. [14]
    On that occasion, the applicant told police that he used KIK Messenger to converse with different persons and to distribute child abuse material; that he had been "promoted" in various chat groups, by default, as a result of staying in the group; that he had made comments in the chat groups about sexual interaction with his relative (a child) in order to get more pictures from other users, but these interactions were made up; that his viewing and obtaining child abuse material had occurred over the last couple of months prior to his arrest; that he knew the folder "stuff" contained a sizeable amount of data but he had not planned to download it because it was "too big"; that he had never opened the downloaded stuff but had just imported it across when people said "check this out" and provided a link; and that he was "not too sure exactly" what he thought he was downloading.  The applicant again told police that he did not derive any sexual gratification from child abuse material.
15. [15]
    The examinations of the applicant’s devices confirmed child abuse was located on both his laptop computer and on his mobile phone, in both the camera roll and within his Mega account (Count 3).  The Mega account properties indicated that about 662GB of storage space was occupied with approximately 40,000 files.  In summary, the child abuse material possessed by the applicant:

    1. was comprised of a mixture of still images and videos, but was predominantly video-based;
    2. depicted a mixture of real children and anime (cartoon) children, ranging in age from toddler to pre-pubescent teenage children;
    3. depicted a mixture of male and female children in various stages of undress in both simulated and candid environments; and
    4. included instances of penetrative sexual acts involving adults with children, children with other children, and children by themselves.
16. [16]
    A sample of the files reviewed by police contained 1,431 images and 556 videos classified as Category 1,^[3] depicting real children that were prepubescent to under 13 years of age and involving sexual activity or focus on the child’s genitalia.  The sample also contained 1,149 images and 182 videos classified as Category 2, which included animated material and children aged 13 years and above.  There was also a significant amount of duplication of files within the sample.
17. [17]
    With respect to the applicant accessing, soliciting and distributing child abuse material in general, a review of the KIK application on the applicant’s mobile phone revealed that he had been involved in numerous chat conversations concerning the distribution of child abuse material.  The applicant actively sought membership of exclusive chat groups by exchanging child abuse material to receive membership.  He would distribute child abuse material on a regular basis to such groups as well as to individual members.  His conduct resulted in his promotion to the level of "administrator" and "owner" of some of these chat groups.  Once in that position, he would enforce group rules, such as requiring users to contribute to the groups or face expulsion.  He would also comment on the child abuse material posted by other users and, in some cases, advise those users that they needed to provide material depicting younger children.
18. [18]
    In some of the chat conversations the applicant discussed with users his interactions with a child he described as a relative and his intentions to involve her in sexual activity.  He also solicited stories of sexual interaction with children from other users by asking about their sexual experience with young people.  The applicant advised some users that he was in possession of approximately 500GB of child abuse material in a cloud storage account.  He provided some users with links to folders containing child abuse material in his Mega account.
19. [19]
    More specifically with respect to the aggravated offence of using a carriage service for child abuse material on three or more occasions, and involving two or more people, (Count 4), between 16 February and 27 April 2020, the applicant participated in ten KIK chat groups, consisting of two or more members who were interested and involved in obtaining and distributing child abuse material and discussing their sexual predilections for children.  Although the total number of persons to whom the applicant had distributed material was not known, the chat groups in which he participated varied from two members to up to 54 members.  At least four of the chat groups involved more than 20 participants.
20. [20]
    In addition to the aggravated offence, the applicant had also participated in instant messaging conversations with individual users, or private groups, in which he committed what were described as offences that were more “transactional” in nature, involving transmitting or causing to transmit, accessing, making available or soliciting child abuse material across 23 chat conversations (Counts 5-45).  The offending involved the applicant accessing or sending mostly small amounts of material on individual dates, but on some occasions he sent a significant amount of material to a particular user.

The circumstances of the applicant

21. [21]
    The applicant was 38 years old at the time of offending and 40 at sentence.  He was single and had lived alone for many years.  He had never had a significant intimate personal relationship and had limited social interactions.  He had a brief criminal history, which did not contain any offences of a similar nature or any offences of sexual offending or violence.
22. [22]
    He had achieved well at school in various subjects but had struggled with English in particular, because of an apparent inability to express himself in writing.  After school he unsuccessfully attempted to complete an apprenticeship as a mechanic and a civil engineering course.  He then had a range of casual jobs, before gaining employment in the automotive industry, where he had been consistently employed for the past 14 years, including holding a position as a store manager.  His work involved the installation of car accessories and sound systems and through his employment he had developed a work-related hobby, competing in events to install car sound systems, at which he had been quite successful.  His hobby and his social interactions had been restricted by the emergence of the COVID-19 pandemic in early 2020.  It was said on his behalf at sentencing that he had unsuccessfully attempted to make friendships via social media with people he had met through work and his hobby.
23. [23]
    The applicant was said to be in good health, with no significant medical history.  The sentencing judge was told that he did not have any mental health issues and did not use drugs or abuse alcohol.

Sentencing remarks

24. [24]
    The sentencing judge described the 2 ½ month period of the applicant’s offending as “relatively short” but “of a high level of intensity”.
25. [25]
    With respect to the Count 1 grooming offence, the sentencing judge noted that the applicant was “well aware” of the age difference between himself and the “girl” with whom he was communicating, but that was not a matter of any concern to him.  Her Honour determined that the nature of the applicant’s conversations with the girl reflected “a degree of manipulation”, in circumstances where the applicant knew that what was occurring was wrong.  Her Honour doubted the applicant’s apparent explanation to police that he could not recall the conversation, noting that he had taken steps to delete it.
26. [26]
    With respect to the Count 3 possession of child abuse material offence, the sentencing judge noted that the approximately 40,000 files contained on the Mega account were “of a broad spectrum” but some of the material included video files of sexual engagement with very young children, and a link to what was described as an infant series, depicting sadistic sexual torture and sexual abuse of a child of approximately two years of age.  Her Honour further noted that whilst the concentration of material that the applicant possessed, accessed or transmitted was not of that nature, it nevertheless was of a serious nature and actual children were involved in the creation of the material.  Her Honour observed that a number of the files were in plain sight, indicating that the applicant had created easy access to them, but that others were embedded in different file types.  Her Honour accepted that the applicant had not reviewed all the child abuse material in his possession but that he had organised some of the material into files, which he had named in a way generally reflective of their content.
27. [27]
    The sentencing judge proceeded on the basis that the Count 4 aggravated offence was the most serious offence and that it was appropriate that a global sentence be imposed for that offence to reflect the applicant’s overall criminality.  Her Honour noted that the basis for the aggravated offence was the applicant’s involvement in networks of child abusers, being persons who also accessed child abuse material and expressed their interest in child abuse or having participated in it.  Her Honour further noted the applicant’s offending conduct involved distribution, accessing or making child abuse material available on some 58 occasions and that the material involved depictions of adults engaging in penetrative acts with children and children performing sexual acts on other children.  Her Honour described the chat groups in which the applicant had participated as ones in which “serious child abuse material of an appalling and serious level was exchanged, and discussions took place of the user’s interest in child abuse, with individuals expressing their desires.”
28. [28]
    The sentencing judge found that there was a degree of planning by the applicant in relation to his distribution of the child abuse material, as he was categorising material which he was accessing in order to be able to pass it on.  Her Honour further found that the applicant had played a “very active role” as an administrator of some of the chat groups.
29. [29]
    The sentencing judge noted that the applicant had not profited from his offending, per se, but that in some instances he did seek to provide child abuse material in order to extract similar material in return or to gain an introduction to one of the group chats.  Her Honour further noted that the applicant’s conduct in downloading and circulating child abuse material contributed to an expanding industry which encouraged abuse of children and inflicted physical and mental harm upon them.
30. [30]
    The sentencing judge identified that the relevant principles in relation to sentencing for offences of this kind were set out in Commonwealth Director of Public Prosecutions v CCQ.^[4]  Having assessed the objective seriousness of the applicant’s offending in accordance with those principles, the sentencing judge concluded that the applicant’s offences were “at least of moderate severity”.
31. [31]
    The sentencing judge noted that the applicant was said to have had difficulties in terms of social interactions and relationships, that he lived on his own and his limited social interactions were exacerbated by the lockdowns experienced during the pandemic, which coincided with the period of his offending.  However, her Honour rejected the submissions made on behalf of the applicant that he had been motivated to seek out interactions with other online users, as distinct from seeking out child abuse material, when he engaged in his offending behaviour.  Her Honour considered that the applicant had “very actively engaged” in conversations with other individuals online and the conduct and nature of those conversations indicated that his interest was not merely in speaking to other individuals, but that he had an interest in the child abuse material which was being exchanged and discussed.
32. [32]
    The sentencing judge also noted that whilst the applicant may have originally engaged with online pornography, he moved across to child abuse material and when he did so “he acted with vigour”.  Her Honour found that the applicant’s conduct in relation to the grooming offence indicated that he was prepared to go beyond merely reviewing images to seeking to engage actively with young underage females.  Her Honour did not accept, as the applicant had told police, that he had no real interest in the child abuse material and did not obtain any sexual gratification from it and that it was “just some silly stuff” that he was looking into.
33. [33]
    The sentencing judge noted that the applicant had cooperated with the administration of justice by making admissions to police and providing access to his mobile telephone and computer, and that these matters were in his favour notwithstanding that in making his admissions to police he had sought to minimise the significance of his offending.  Her Honour noted whilst he could have pleaded guilty at an earlier opportunity, his guilty pleas had value in saving the court and the community time and resources.  Her Honour accepted that by his guilty pleas, the applicant had accepted responsibility for his conduct.  However, the sentencing judge was not satisfied that there was any evidence of remorse in relation to his offending conduct, over and above what might be reflected by the guilty pleas.
34. [34]
    The sentencing judge expressly noted that the applicant’s lack of expression of apparent remorse indicated that he may lack insight into the effect and nature of his offending and that, to a certain extent, may diminish his prospect of rehabilitation.  Nevertheless, the sentencing judge noted that the applicant had complied with his bail conditions for two years and had previously been successfully employed in the automotive industry and that he would be able to return to his employment after he completed his sentence.  Ultimately the sentencing judge found that the applicant had reasonable prospects of rehabilitation.
35. [35]
    The sentencing judge noted that general deterrence was the paramount sentencing consideration, but that specific deterrence and denunciation were also important sentencing considerations.  Her Honour further noted that because general deterrence was the paramount sentencing consideration, less weight was given to the applicant’s prior good character.  Her Honour observed that “[T]he seriousness of the offences is not permitted [to] be overshadowed by the subjective circumstances of you as an offender.”
36. [36]
    The sentencing judge notionally indicated that a sentence of 9 years’ imprisonment would reflect the applicant’s overall criminality, but reduced the sentence ultimately imposed to one of 8 years and 6 months’ imprisonment, with a non-parole period of 4 years and 3 months, on account of the applicant’s guilty pleas and his co-operation with law enforcement.

Was the sentence manifestly excessive?

37. [37]
    The principles relevant to a ground of appeal asserting that a sentence is manifestly excessive are well-established.  Absent an allegation of specific error, what must be established by an applicant is that interference by the appellate court is warranted because on the facts of the case the result reached by the sentencing judge is unreasonable or plainly unjust, such that this Court may infer that in some way there has been a failure properly to exercise the discretion the law reposes in the sentencing court at first instance.^[5]
38. [38]
    It is not enough for an applicant to establish that the sentence imposed in their case was different, or even markedly different, from sentences imposed in other matters.  Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.^[6]
39. [39]
    The applicant sought to demonstrate that his sentence was manifestly excessive by arguing that various matters were not properly taken into account by the sentencing judge.  In particular he argued that not enough weight had been given to his personal circumstances, such as his early guilty plea, cooperation with police and his limited criminal history.  With respect to his guilty plea he argued that the sentencing judge only reduced his sentence by 1/18.
40. [40]
    Whilst the applicant was represented by counsel during the sentence proceedings, he appeared for himself in this Court.  In his written submissions he contended that he should have been sentenced to a “6 Year top with 2 options on the bottom”, being either:

    1. “Option 1 – Serve 2 years, Suspend 4 years, large community service, large good behaviour bond order and to complete a sexual addiction program within the 1^st year of being released”; or
    2. “Option 2 – Court ordered parole at 2 years, large community service order, large good behaviour bond and to complete a sexual addiction program within the 1^st year of being released”.
41. [41]
    The applicant also submitted that he would agree to any other orders that this Court may impose, which would be “followed to the letter”.
42. [42]
    The applicant was of course a federal offender, who was required to be sentenced in accordance with the provisions of Part 1B of the Crimes Act 1914 (Cth), which, amongst other things prescribed the sentencing options that were available to the sentencing judge.  Neither of the suggested options for the “bottom” components of the sentence that the applicant contends should have been imposed were available at law.  Nevertheless, I proceed on the basis that the essence of the applicant’s written submissions was that he should have at least been sentenced to 6 years’ imprisonment, with a non-parole period fixed at 2 years.
43. [43]
    It was evident that by the time of the hearing of this application, the applicant had had the opportunity to further review the submissions that had been made on his behalf by his counsel in the sentence proceedings.  In written submissions, the applicant’s counsel had argued that a head sentence range in the order of 6 to 7 ½ years’ imprisonment was indicated by comparable cases and that a sentence towards the bottom of that range should be imposed, in order to reflect the applicant’s co-operation with the administration of justice.  During oral submissions, the applicant’s counsel further submitted that the sentencing judge could consider an adjustment of the head sentence and the non-parole period, so as to provide the applicant with an incentive to engage in assessments and treatment programs whilst in custody.  That submission was made in the course of exchange in which the sentencing judge had commented that there was no evidence before her Honour about the applicant’s rehabilitation or motivations.  To illustrate his point, counsel submitted:

“So for example, if your Honour were minded to, for articulation purposes, a sentence of seven years for which the non-parole period might be in the order of one-half, that could be ameliorated by a lessening of the non-parole period, supplemented by an extension, effectively, of the parole period by increasing the head sentence. So rather than seven years with a non-parole period of three and a-half, your Honour might impose a sentence of eight years with a non-parole period of three. That would achieve a greater level of supervision upon release and also provide something of an incentive to engage with assessments and programs with the possibility of being able to achieve that release…”

44. [44]
    In light of what had been put on his behalf below, the applicant informed this Court at the hearing of his application that he had “thought about it a lot more” and realised that a sentence of 6 years with a non-parole period of 2 years was “just too far out of the range of options”.  He instead submitted that a “more reasonable” sentence would have been 7 years’ imprisonment, with the non-parole period being one half of that sentence, or alternatively, as his counsel had suggested below, a sentence of 8 years’ imprisonment, with the non-parole period being one-third of that sentence.
45. [45]
    The cases which were relied upon by the applicant’s counsel during the sentence proceedings as comparable cases were R v KAT,^[7] Lyons v R^[8] and R v Dowd.^[9]  In addition, although CCQ was cited for relevant sentencing principles, the applicant’s counsel sought to compare the circumstances of that case with the applicant’s case to support a submission that the applicant’s sentence should be “substantially below” the sentence that was imposed in that case.  The applicant did not put forward any further cases for comparison before this Court.  The applicant argued that in general his sentence was excessive when compared to other cases, including sentences for offences of a different kind, but the applicant sought to reply upon Dowd in particular in support of his contention that the sentence imposed upon him was manifestly excessive.
46. [46]
    As the sentencing judge correctly observed, none of the cited cases were directly comparable to the applicant’s case.
47. [47]
    CCQ was a Crown appeal.  The respondent in that case was sentenced at first instance to a total head sentence of 12 years’ imprisonment, with a non-parole period of 6 years, for seven Commonwealth offences of using a carriage service to transmit, solicit or cause to be transmitted child abuse material.  He was also sentenced to a partly suspended sentence of 5 years’ imprisonment, to be suspended after serving 20 months for an operational period of 5 years, in respect of a single State offence of knowingly possessing child exploitation material.  A global sentence of 12 years’ imprisonment was imposed for the most serious offence, being an aggravated offence involving conduct on three or more occasions and two or more people.  The Crown contended that the sentences imposed were manifestly inadequate.  The Court upheld the Crown’s appeal and resentenced the respondent to 16 years’ imprisonment for the aggravated offence and fixed a non-parole period of 10 years for the Commonwealth offences.
48. [48]
    The respondent’s offending conduct in CCQ was extensive.  Over a period of nearly two years, he used messaging and social media applications to transmit, solicit, access and cause to be transmitted to himself, child abuse material.  In the same period, he had possessed a substantial quantity of child exploitation material on electronic devices or on online accounts.  In total, he possessed 26,336 files (23,413 of which were images, and 2,922 of which were videos).  The offences were committed for sexual gratification and the respondent’s self-professed sexual interest was in the abuse, exploitation and degradation of very young children, particularly babies and toddlers.  The nature of the material involved in the offending showed very young children, including newborn babies and toddlers, subjected to acts of rape, incest, bestiality and extreme cruelty.  In committing the aggravated offence, the respondent had made 84 child abuse material files available to multiple other individuals in 12 online chat groups, on 33 occasions, across 13 different dates in a five-month period.  Four of the chat groups to which the respondent had made child abuse material available were “supergroups”, which typically were groups comprised of 200 or more members.
49. [49]
    The respondent in CCQ was 41 years old at sentence and between 37 and 38 years of age at the time of the offending.  He had a prejudicial childhood, having been subjected to physical, emotional and sexual abuse at home and in foster care.  He had pleaded guilty and co-operated to an extent with the police investigation and made some admissions.  He had no criminal history and did not re-offend during the two-year period he had been on bail awaiting sentence.
50. [50]
    I agree with the sentencing judge’s assessment that the offending in CCQ was significantly more serious in nature than the applicant’s offending.  It was not a useful comparator and cannot assist in assessing whether the applicant’s sentence was manifestly excessive.  The real value of CCQ in the sentencing exercise was its convenient summary of relevant sentencing principles.  In that respect, the Court in CCQ stated:^[10]

3. “[8]
   …there was no dispute as to the general principles for sentencing in cases involving child pornography or child exploitation material… those principles include:

3. (a)
   general deterrence is the primary sentencing consideration for offending involving child abuse material given the prevalence and ready availability of pornography involving children, particularly on the internet, and the need to protect children from sexual abuse;

3. (b)
   there is a paramount public interest in promoting the protection of children as possession of child pornography is not a victimless crime, the possession of child abuse material creates a market for the continued corruption and exploitation of children, and children are sexually abused in order to supply the market;

3. (c)
   the fact that an offender has no relevant prior convictions carries less weight in sentencing for child pornography offences;

3. (d)
   offending involving child abuse material occurs on an international level, and the advent of the internet as a means to access child abuse material means both that such offending is becoming increasingly prevalent, and that it is difficult to detect, given the anonymity the internet can provide;

3. (e)
   the fact that an offender did not pay to access a child abuse material website, or was not involved in the distribution or sale of child abuse material, does not mitigate the offending;

3. (f)
   the subjective circumstances of an offender must not overshadow the objective gravity of the offences; and

3. (g)
   in a case of dissemination, the number of persons to whom the material is distributed is relevant.

3. [9]
   There are a number of relevant considerations when assessing the objective seriousness of offences involving child abuse material, including:

3. (a)
   the nature and content of the material, particularly the age of the children and the gravity of the sexual activity depicted, including the extent of any cruelty or physical harm to the children that may be discernible from the material;

3. (b)
   the number of items or images possessed, accessed or transmitted;

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

3. (d)
   in a case of distribution or transmission, the number of persons to whom the material was transmitted;

3. (e)
   whether any payment or other material benefit (including the exchange of child pornography material) was made or received for the acquisition or transmission of the child pornography material;

3. (f)
   whether actual children were involved in the creation of the material, and the number of children depicted and thereby victimised;

3. (g)
   the length of time over which the offending occurred; and

3. (h)
   the degree of planning, organisation or sophistication employed by the offender in acquiring, storing, disseminating or transmitting the material.”

51. [51]
    In Lyons, the offender pleaded guilty and was originally sentenced to 9 years’ imprisonment, with a non-parole period of 6 years, in respect of six offences involving child pornography material, being a State offence of possessing child abuse material, four Commonwealth offences involving the use of a carriage service to transmit or make available child pornography material, and a further aggravated Commonwealth offence of making child pornography available on three or more occasions to two or more persons.  The possession offence involved 371 image files and 19 video files held in an email account which was accessible by the offender.  The aggravated offence involved making available 145 image files and 70 video files by emails sent on four occasions to a total of 161 recipients over a period of approximately one week.  The other offences involved the offender using the email account to transmit on two occasions, to a total of eight individuals in a one-month period, a total of 134 image and video files; and to make available to six individuals, on five occasions over a period of just over a month, a total of 146 image and video files.  The vast majority of the material involved across all offences was categorised as depictions of children with erotic posing but no sexual activity.  Most of the children depicted were estimated to be from approximately five to six years of age through to fourteen or fifteen.
52. [52]
    The offender in Lyons had significant subjective mitigating circumstances, including that he had previously been diagnosed with a sexual disorder involving an addiction to pornography for which he had been obtaining treatment over a nine-month period until he could no longer afford it.  Thereafter he remained abstinent for about 18 months before relapsing.  It was during his period of relapse that the offending then occurred.  He was also found to be remorseful for his offending and assessed as having moderate prospects of rehabilitation.  After a successful sentence appeal, he was re-sentenced to an effective sentence of 6 years and 3 months’ imprisonment, with a non-parole period of 4 years and 6 months.
53. [53]
    I agree with the sentencing judge’s observation that Lyons was not of any great assistance as it involved less serious offending than that committed by the applicant, with significantly different mitigating circumstances.  To the extent that it might assist, it suggests that the sentence imposed on the applicant was well within the bounds of a reasonable exercise of sentencing discretion.
54. [54]
    In R v KAT the offender pleaded guilty to three State offences of making and possessing child exploitation material and an aggravated Commonwealth offence of using a carriage service to make child pornography material available.  He was sentenced to 7 ½ years’ imprisonment, with a non-parole period of 4 ½ years for the Commonwealth offence.  Lesser concurrent sentences of imprisonment were imposed for the State offences.  This Court refused the offender’s application for leave to appeal his sentence.
55. [55]
    The offending in KAT was quite different to that involved in this case.  There, a police investigation revealed that the applicant had been distributing child exploitation material by making it available on the dark web through peer-to-peer file sharing platforms that were protected by anonymization software.  He had posted 107 messages on child pornography related boards, requesting and responding to requests for child pornography.  In the course of those posts, the applicant committed the aggravated offence by uploading links to child pornography material on nine occasions over a period of about eight months.  The material comprised 724 images and four videos, with most being categorised as either Category 3 or 4 on the “Oliver scale”.^[11]  Because it was shared on peer-to-peer platforms, the material was capable of being viewed by an unlimited amount of people.  The offence of making child exploitation material concerned a two-page story the offender had written.  The other offences involved the offender’s possession of 8,735 images, most of which were classified as Category 1^[12] and 266 videos, which were largely within Category 4.
56. [56]
    The circumstances of the offender in KAT were also quite different to those of the applicant.  He was aged between 54 to 55 at the time of the offending and 56 at sentence.  He was a practising solicitor and had previously been a schoolteacher.  He had no criminal history, save for a dated conviction for an offence of driving under the influence of alcohol.  He did not cooperate with authorities and was sentenced on the basis that he was not remorseful, did not take responsibility for his offending, and did not have good prospects of rehabilitation – in part because he was found to have been dishonest with his psychologist and psychiatrist, and also with the Court in relation to his sentence proceedings.
57. [57]
    In my opinion, the sentence imposed in KAT does not demonstrate that the applicant’s sentence is manifestly excessive.  Whilst the subjective circumstances of that offender were more favourable that those of the applicant, the offending in that case was far less serious.
58. [58]
    The case of Dowd was a sentence imposed at first instance.  For that reason alone, it is of very limited assistance as a comparable case.  In the absence of scrutiny on appeal, a sentence imposed by a single judge at first instance does little to assist in identifying the range of sentence that might be considered appropriate in another case.  Consistency in sentencing for federal offenders is achieved through the work of intermediate appellate courts.^[13]
59. [59]
    Although it is of limited utility, I will nevertheless address the facts and circumstances of Dowd given that the applicant placed particular reliance upon the case in support of his contention that his sentence was manifestly excessive.
60. [60]
    The offender in Dowd pleaded guilty and was sentenced in respect of 16 indictable offences involving a mix of State and Commonwealth child pornography and child exploitation material offences and nine summary charges involving breaches of bail.  The most serious offences were three aggravated Commonwealth offences of transmitting child pornography material, for which he received concurrent sentences of 7 ½ years’ imprisonment.  Lesser concurrent sentences were imposed for the remainder of the indictable offences.  A single non-parole period of 3 years and 7 months was fixed for all Commonwealth offences.
61. [61]
    It is not necessary to descend into the full details of each of the offences committed by the offender in Dowd.  It is sufficient to note that he had been involved with child pornography over many years and it had escalated in seriousness.  As a result of a police search, he was found in possession of almost 15,000 child pornography images and about 400 videos contained on various devices.  The depravity of those images and videos ranged from sexually suggestive posing through to the penetrative activity between children, sadism, humiliation and bestiality.  He had also exchanged and traded child pornography material of that kind with others over a period of eight months, during which, across 458 occasions, he transmitted 1,529 files to 160 recipients and received a total of 882 files, from 76 senders sending material to him on 185 occasions.  The offender’s communications with others contained his requests for specific material and his comments about his desire to engage in sexual activity with children.  He also engaged in indecent online conversations with 32 different individuals that he believed were children under 16 years of age.  The three aggravated offences involved the offender transmitting child pornography material on a total of 38 occasions to three online groups, one comprising 10 people and two comprising 49 people.  In total, 55 child pornography files were transmitted by the offender.  The sentencing judge accepted that the offender’s involvement with child pornography arose out his viewing of adult pornography and that his initial exposure to it was unsolicited.
62. [62]
    The offender in Dowd was aged between 35 and 43 years when he committed the offences and was 46 years old at sentence.  He was a socially isolated individual with few friends but had the support of his parents.  There had been a delay of some 14 months between his initial charging and being charged with further offences.  He had initially been on bail but was then remanded in custody after the further charges, where he remained for almost two years before sentence.  He indicated his willingness to plead guilty at a very early stage, co-operated with police, had shown a willingness to take responsibility for his offending and was remorseful.  The sentencing judge had noted that but his early pleas, the uncertainty he experienced with respect to facing additional charges for 14 months and the attendant delay in being able to take steps towards rehabilitation, a sentence of 8 years’ imprisonment would have been imposed.
63. [63]
    Putting aside its limited utility as a comparator, I do not consider that the sentences imposed in Dowd demonstrate that the sentence imposed upon the applicant was manifestly excessive.  The circumstances of the offending in that case may have had some similarities with the applicant’s offending, but they were not the same and, in my view, the single aggravated offence committed by the applicant was more serious than the three aggravated offences committed by the offender in Dowd.
64. [64]
    One final matter that must be addressed is a submission made by the applicant which sought to characterise his offending as less serious because there were no actual victims involved.  Such a suggestion is of course wrong.  These are not victimless crimes.^[14]  It is well recognised that the vulnerable children who are abused and exploited by those who make and distribute material of the kind with which the applicant was involved are actual victims, who suffer immeasurable harm.  Furthermore, it is incontrovertible that offenders such as the applicant, who view, seek out and exchange such material, create a market for it and by doing so they fuel the misery, suffering and harm caused to those victims.  Whilst offenders like the applicant may not be directly involved with the children, each individual child depicted in the images and videos they send, receive or collect is rightly to be considered a victim of their child abuse and child exploitation material crimes.
65. [65]
    In my view, the applicant's submission to the contrary bears out the concerns expressed by the sentencing judge that the applicant may lack insight into the gravity of his offending and the harm it causes.
66. [66]
    Ultimately, I am very far from persuaded that the applicant’s sentence was manifestly excessive.  It must be borne firmly in mind that the sentence of 8 years and 6 months’ imprisonment that was imposed for the aggravated offence was intended to reflect the totality of the applicant’s criminality, which was extensive and multi-faceted.  Each of the offences he committed was serious in its own right.  The maximum penalty for the aggravated offence was 25 years’ imprisonment.  I agree with the sentencing judge’s assessment that the offences were at least of moderate severity.  Such a characterisation was well justified when the objective seriousness of the applicant’s offending was assessed in accordance the principles summarised in CCQ.  In such circumstances, the sentence of 8 years and 6 months’ imprisonment might also be described as ‘moderate’.
67. [67]
    There is no merit in the applicant’s argument that his personal circumstances were not given sufficient weight by the sentencing judge.  It is clear from her Honour’s sentencing remarks that each of the matters he referred to were taken into account by her Honour.
68. [68]
    The setting of a non-parole period of 4 years and 3 months was also unremarkable.  The non-parole period is part of the overall sentence.  The statutory command in s 16A(1) of the Crimes Act, which required the sentencing judge to impose a sentence of a severity appropriate in all the circumstances of the offence, extends to determining both the head sentence and the non-parole period.^[15]  The non-parole period is to be determined having regard to the minimum period that justice requires the applicant serve in custody before he would be eligible for release on parole.^[16]  In making that determination here, the sentencing judge was required to take into account all the same considerations that were relevant to determining the appropriate head sentence, including the objective circumstances of the offending and the paramount sentencing consideration of general deterrence.  None of the circumstances of the applicant called for any particular mitigation of his punishment in favour of his rehabilitation.  Apart from what might be inferred by his guilty pleas, the applicant had not shown any remorse.  The sentencing judge rejected the proffered motivations for his offending and did not accept his assertion that he did not have a sexual interest in child abuse material.  No psychiatric or psychological report or other evidence was put forward by the applicant to explain his offending behaviour or to provide any further insight into his obvious sexual proclivities or to demonstrate his desire and prospects for rehabilitation.
69. [69]
    I do not accept the applicant’s argument that the sentencing judge only reduced his sentence by 1/18 on account of his guilty plea or otherwise failed to give it sufficient weight.  The applicant is misguided in thinking that the only reduction in sentence he received for his guilty plea was to reduce the notional head sentence from 9 years to 8 ½ years’ imprisonment.  Whilst he had pleaded guilty and had cooperated with police in making admissions and providing access to his mobile phone and accounts, those matters were adequately reflected in the head sentence and the non-parole period determined by the sentencing judge.
70. [70]
    In those circumstances, it cannot be said that fixing a non-parole period of 4 years and 3 months, representing one half of the head sentence, compels a conclusion that the sentence was manifestly excessive.

Other matters raised by the applicant

71. [71]
    Although the applicant only relied upon one formal ground of appeal, his written submissions raised a range of other complaints that went well beyond a contention that his sentence was manifestly excessive.  Most of those additional matters related to matters that were already taken into account by the sentencing judge or to matters that were said to have occurred post-sentence or matters which may have been known at the time of sentencing but were not relied upon by the applicant.  Save for in exceptional circumstances, matters that occur post-sentence are irrelevant to the question of whether the sentence imposed by a sentencing judge was manifestly excessive and are not matters that will be considered by this Court.  The same applies to matters that may have been known at sentence but were not put before the sentencing judge.^[17]
72. [72]
    The applicant did not identify any reason why any of the matters that went beyond his complaint of manifest excess should be considered by the Court at the hearing of his application for leave to appeal his sentence.  Accordingly, in my view, it is neither appropriate nor necessary for any of these matters to be further addressed.  For present purposes, it is sufficient to simply say that none of the further matters raised by the applicant, either individually or collectively, were capable of demonstrating that the sentence imposed by the sentencing judge was manifestly excessive.

Conclusion and orders

73. [73]
    In my view, none of the applicant’s complaints are tenable.  Accordingly, I would order:

3. 1.
   The application for leave to appeal is refused.