R v Ferns[2024] QCA 262

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Boddice JA.
2. [2]
   BODDICE JA:  On 8 March 2022, the applicant pleaded guilty to six offences contrary to the Criminal Code (Cth), being one count of using a carriage service to transmit child abuse material contrary to s 474.22(1) (count 1), one count of using a carriage service to access child abuse material contrary to s 474.22(1) (count 2), one count of using a carriage service to solicit child abuse material contrary to s 474.22(1) (count 3), one count of aggravated offence – offence involving conduct on three or more occasions and two or more people contrary to s 474.24A (count 4) and two counts of possess or control child abuse material obtained or accessed using a carriage service contrary to s 474.22A (counts 5 and 6).
3. [3]
   On 13 October 2022, the applicant was sentenced to 15 years’ imprisonment, commencing on 28 September 2022, on count 4 and lesser, concurrent periods of imprisonment on each of the remaining counts.  A single non-parole period of 8 years was fixed, pursuant to s 19AB of the Crimes Act 1914.
4. [4]
   The applicant seeks leave to appeal his sentence.  If leave be given, the applicant relies on one ground, that the sentence was manifestly excessive.

Facts

5. [5]
   On 17 December 2019, Australian Federal Police received a report relating to the applicant’s use of an email address to upload 17 files of child abuse material onto a Dropbox platform.  That platform was a file hosting service that provided cloud storage.  Users, through a cloud-based system, can upload, transfer and share files and folders using computer and mobile devices.
6. [6]
   The Dropbox records revealed that the applicant’s email address had logged onto the platform on 19 March 2019, and on 10 October 2019, using different Internet Protocol addresses on each occasion.  Telephone records revealed that the user of those addresses was associated with the applicant and, in particular, the email address that had been used to upload the child abuse material onto the Dropbox platform.
7. [7]
   On 30 September 2020, federal police executed a search warrant at the applicant’s address.  Police seized a laptop and an iPhone.  The applicant identified each as his and provided passcodes for both devices.
8. [8]
   An analysis of the applicant’s iPhone revealed he had been using a messaging application to transmit, solicit and access child abuse material and to engage in discussions describing the sexual abuse of children, with other like-minded people.  Users of that messaging app were able to maintain a level of anonymity, as they were not required to provide their telephone number when registering an account.
9. [9]
   The analysis revealed that there had been 21 conversations which the applicant had participated in or was a member of, where files were sent and/or received that met the definitions of child abuse material (counts 1, 2, 3 and 4).  There were two users the applicant individually messaged with and engaged in a three-way message conversation with at the same time, during which the applicant transmitted child abuse material on more than three occasions (count 4).
10. [10]
    The applicant kept possession of the child abuse material he transmitted and was sent by other users, during these conversations and was in possession of them at the time of the execution of the search warrant (count 5).
11. [11]
    An analysis of the applicant’s laptop located both video and still images of child abuse material saved, to which he had accessed or obtained over the internet from September 2019 to 4 September 2020 (count 6).

Counts

12. [12]
    The agreed statement of facts summarised the factual basis for each count.
13. [13]
    Count 1 concerned the transmission by the applicant of 52 child abuse material files, in text conversations with 17 other users.  The child abuse material files transmitted by the applicant, contained images of pre-pubescent male and female children being orally and anally raped by adult males, as well as touching the genitalia of adult males.  The children ranged from babies to 10 years of age.  The applicant also had engaged in sexualised text conversations with the users about the sexual abuse of children.  During these conversations, the applicant discussed his sexual interest in babies, including newborns and his purported sexual abuse of a 3 year old male when the applicant was 14 years of age.  The conversations were graphic in their description of his age preferences, his desire to rape and molest babies and toddlers and of the acts he had engaged in with the 3 year old.  The applicant described acts of violent penetration, including a graphically expressed desire to make a parent rape their own child.
14. [14]
    Count 2 involved accessing child abuse material over the internet, using both his phone and his laptop, for a period of approximately one year.  Child abuse material in the form of videos and images, was transmitted to the applicant.  The applicant also accessed material sent in large chat groups.  The applicant accessed 86 files of child abuse material, between 17 August 2020 and 13 September 2020.
15. [15]
    Over the one year period, the applicant used his laptop to access and download 145 videos of child abuse material, between September 2019 and 4 September 2020.  These files remained accessible on the applicant’s computer at the time of execution of the search warrant.  The applicant had also accessed 33 videos of child abuse material and downloaded them into the Dropbox folder.
16. [16]
    Count 3 concerned the solicitation of child abuse material on two separate occasions from two different platform application users.  On the first occasion, the applicant had a direct message conversation with a user of the platform application, during which they discussed having sex with young boys and having certain occupations in order to have access to children for sexual reasons.  The applicant also sought child abuse material from that user, although none was sent in response to that request.
17. [17]
    On the second occasion, during an individual conversation with a different user, the applicant transmitted four files of child abuse images and discussed molestation of a newborn.  The applicant also solicited child abuse material.  Again, no material was sent in response to that request.
18. [18]
    Count 4 concerned use of the platform application between 8 and 9 September 2020, when the applicant participated in a single direct message conversation with two other users, at the same time.  During this three-way message conversation, the applicant transmitted four files and four text messages that constituted child abuse material.  One of the other users described the applicant and the other user as his two favourite paedophiles that he talked to all day.  The applicant indicated that he had no limit to how young the child was and that he loved very young babies.
19. [19]
    The child abuse material files and text messages transmitted during the conversations, discussed penetration of extremely young children, as well as getting a father drunk and making him rape his child.  An image was sent of a cartoon depicting a female baby being anally raped by an adult male, as well as a message that the applicant wanted to see the users’ penises do this to a boy.  On another occasion, there was an image of a male child, approximately 6 to 8 years of age, being orally raped by an adult male.
20. [20]
    Count 5 concerned the location of 20 videos and 118 image files on the applicant’s iPhone that met the definition of child abuse material and which remained accessible to the applicant.  Those files included images of pre-pubescent males as young as 4 years old, exposing their genitalia, or engaging in sexual activity with each other and the vaginal, anal and oral rape of pre-pubescent female victims as young as newborn babies, by adult males and the anal and oral rape of pre-pubescent male victims as young as 5 years old, by adult males.
21. [21]
    Count 6 concerned the contents of video files located on the applicant’s laptop.  Seven hundred and seventy files were identified as potentially being child abuse materials, with 400 of the videos being reviewed and 178 being found to be child abuse material.  Forty-eight of those videos depicted images of male and female children aged between newborn and 5 years old being vaginally, anally and orally penetrated by adult males, including children as young as 3 being restrained with rope.  There was also located on the applicant’s laptop, 183 images which were identified as child abuse material.  The material contained images of male boys posing naked, exposing their genitalia; images of female and male children being orally raped by adult males; images of a baby being orally raped by an adult male; and images of male children aged between 13 and 16 years engaging in oral sex together, or posing naked with their penises exposed.

Sentencing remarks

22. [22]
    The sentencing judge recorded that whilst the applicant’s conviction was probably all but inevitable once the electronic devices were seized, the applicant had cooperated by providing passwords to the devices.  The applicant also had no prior criminal history and had taken positive steps towards rehabilitation.  Against that background, the sentencing judge accepted that the pleas of guilty reflected not only a willingness to cooperate with the administration of justice, but also true remorse.
23. [23]
    The sentencing judge recorded that in 2020, various amendments had been made that impacted on the sentencing of offenders who had committed these types of offences.  Whilst there were cases in other States where sentences for offences under the relevant subdivision had been imposed since the amendments, there had been no such sentences in respect of the aggravated offence (count 4).  The amendments involved increasing the maximum sentence for an aggravated offence, from 25 years’ imprisonment to 30 years’, with the minimum term relevant to the aggravated offence being 7 years’ imprisonment, subject to an offender having cooperated with law enforcement agencies in the investigation of the offence, or a child sex offence.
24. [24]
    The sentencing judge recorded that as a consequence of these amendments, sentences imposed in earlier cases are useful only in identifying unifying principles, as the obvious legislative intention is to lead to a general increase in sentences for those offences.  However, that absence of yardsticks did not preclude the sentencing judge from undertaking the well-defined process of sentencing, having regard to the available evidence and the relevant law.
25. [25]
    The sentencing judge recorded that there had been differing approaches to sentencing where there is a statutory minimum period of imprisonment, but determined to follow the approach of looking at both the maximum-minimum sentences which were statutorily prescribed.  The sentencing judge recorded that there was no suggestion of co-operation such that a reduction in the mandatory minimum period was applicable in this case.
26. [26]
    After considering the various sentencing principles for federal offences, the sentencing judge observed that deterrence, both general and specific, was a relevant factor, as was the paramount public interest in the protection of children.  Whilst the applicant had not offended directly against children, in that he had not created the images, or participated in actions depicted in those images, his actions contributed to the market for such vile material and therefore in an indirect way, contributed to the suffering of children.
27. [27]
    The sentencing judge recorded a number of mitigating factors, including that the applicant: had had a difficult childhood; had a good work history; and had self-medicated with illicit drugs to deal with stress and other problems, from a young age.  The sentencing judge also had regard to the contents of a psychiatric report and a psychological report.
28. [28]
    The psychiatrist opined that whilst the applicant had no major mental disease or infirmity, he met the diagnostic criteria for paedophilia.  However, the applicant had developed an understanding of the consequences of his actions and of the impact upon the victims, as well as empathy for them.  Those factors significantly diminished the risk of re-offending, such that his risk of progression to contact sexual offending against children was low.
29. [29]
    The psychologist opined that the applicant’s past history of substance abuse and trauma systems due to exposure to domestic violence and later, sexual assaults and high risk sexual practices contributed to the offending behaviour, which was also affected by impairments in self-regulation, contributed to by drugs and alcohol.
30. [30]
    The sentencing judge recorded that there was nothing to suggest that any treatment could not be administered whilst in custody and that the applicant had no prior convictions and no indication of sexually offending directly against any children.  Further, two of his former sexual partners had spoken highly of him.
31. [31]
    After referring to the requirements in s 19, sub-ss 5, 6 and 7 of the Crimes Act, the sentencing judge recorded that he intended to impose a sentence on count 4 which reflected the seriousness of all offending.  The totality of the offending could easily be accommodated within the available head sentence for that count, namely 30 years and the offending for all counts could sensibly and practically be regarded as one series of events.

Consideration

32. [32]
    In order to succeed on a ground of manifest excess, an applicant must establish that the sentence is unreasonable or plainly unjust.  It is not sufficient for an applicant to merely establish that the sentence was different or even markedly different from sentences imposed in other cases.  Appellate intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, or where the sentence imposed is so far outside the range of sentences available, that there must have been error.^[1]
33. [33]
    Where, as here, there is a statutory minimum sentence, it is a yardstick to be used in the exercise of the sentencing discretion to represent the sentence for the least worst category of case.^[2]  Relevant considerations, when assessing objective seriousness of offences involving child abuse material, were summarised in Commonwealth Director of Public Prosecutions v CCQ:^[3]

1. “[8]
   Before this Court there was no dispute as to the general principles for sentencing in cases involving child pornography or child exploitation material.  Drawing on what was said by this Court in R v Howe and by the New South Wales Court of Criminal Appeal in Lyons v R, those principles include:

1. 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;

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

4. 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;

5. 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;

6. the subjective circumstances of an offender must not overshadow the objective gravity of the offences; and

7. in a case of dissemination, the number of persons to whom the material is distributed is relevant.

1. [9]
   There are a number of relevant considerations when assessing the objective seriousness of offences involving child abuse material, including:

1. 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;

2. the number of items or images possessed, accessed or transmitted;

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

4. in a case of distribution or transmission, the number of persons to whom the material was transmitted;

5. 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;

6. whether actual children were involved in the creation of the material, and the number of children depicted and thereby victimised;

7. the length of time over which the offending occurred; and

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

34. [34]
    In undertaking that assessment, it is the quality of the material rather than its quantity, that is often more determinative of the gravity of the offending conduct.^[4]
35. [35]
    The applicant submits that whilst count 4 was the most serious offence and there is no complaint made about the sentencing judge’s approach to imposing a sentence on a global basis on that count, the sentence imposed was manifestly excessive, as the objective seriousness of that offence fell towards the lower end of the scale of seriousness for offences of its kind.  The applicant relies on the limited number of people involved in the transmission of the child abuse material, over but two days.  The applicant submits that recent decisions of Harden v R^[5] and R v Horsfall,^[6] support that conclusion.
36. [36]
    In Harden, the applicant was sentenced to an effective head sentence of 30 years’ imprisonment in relation to 105 offences under the Crimes Act 1900 (NSW) and nine offences under the Criminal Code (Cth), including five offences contrary to s 474.24A.  Those latter offences involve the applicant using a carriage service to transmit child abuse material he had made with seven child victims, to a number of persons, using multiple messaging applications on multiple dates over a three year period.  The most serious of the offences involved the applicant using the internet to make 229 transmissions of child abuse material of himself and a child, which included videos of digital and anal sexual intercourse, fellatio and sexual touching on 38 separate days.  The child was aged 7 and 8 years.
37. [37]
    On appeal, the effective head sentence was reduced to 29 years and 6 months.  However, it was observed that the indicative sentences of 5 years 6 months imprisonment, for the aggravated sentences contrary to s 474.24A, were “very low”.^[7]
38. [38]
    In Horsfall, the applicant had been sentenced to a global sentence of 8 years 6 months imprisonment in relation to offences against the Criminal Code (Cth) relating to child abuse material, including one offence contrary to s 474.24A.  That latter offence involved the applicant using a carriage service to transmit child abuse material, including depictions of adults engaging in penetrative acts with children and children performing sexual acts on other children on 58 occasions, in 10 chat groups which varied from two to 54 members, over a two and a half month period.  There was a degree of planning for the distribution of the material, including playing a very active role as administrator of some of the chat rooms.
39. [39]
    Whilst it may be accepted that Harden involved more transmissions of child abuse material and the transmission of child abuse material he had made and that Horsfall had a more active role in the dissemination and categorisation of the child abuse material, it does not follow that their offending is properly to be characterised as more serious than the applicant’s offending.  It is the quality of the material that is relevant when assessing seriousness.
40. [40]
    The child abuse material the subject of the applicant’s offending, depicted children as young as babies being defiled violently by penetration.  Further, a concentrated focus of the applicant’s conversations was on the violent penetration of babies and infants, including having their own parent defile them by penetration of various orifices.  Those are particular features of the applicant’s conduct, which involved gross depravity.
41. [41]
    The applicant’s focus on material and messages involving penetration of extremely young babies and infants, with violence, rendered his offending far from the least worst category.  His text messages and chat room exchanges with like-minded deviants, only reinforced the depravity of his conduct.
42. [42]
    When regard is had to the nature of the child abuse material and the applicant’s stated focus of violently defiling babies and infants, in the context of other serious, but related offending over a period of 12 months, there is no basis to conclude that the sentencing judge erred in principle in the imposition of a global sentence of 15 years’ imprisonment, or that such a sentence was unreasonable or plainly unjust.
43. [43]
    To the contrary, the sentencing judge carefully applied the relevant sentencing principles, recognising that notwithstanding the applicant’s lack of criminal history and steps at rehabilitation, deterrence and denunciation must loom large.

Conclusion

44. [44]
    A consideration of the nature, circumstances and objective seriousness of the applicant’s offending, together with the mitigating factors of the applicant’s pleas of guilty, co-operation, remorse, prejudicial history and positive steps towards rehabilitation, support a conclusion that the sentences imposed on the applicant fell well within a sound exercise of the sentencing discretion.
45. [45]
    The sentences imposed were not manifestly excessive.

Orders

46. [46]
    I would order:

1. That the application for leave to appeal against sentence be refused.

47. [47]
    MARTIN SJA:  I agree with Boddice JA and the order proposed by his Honour.