The offender was sentenced following pleas of guilty to 1 count of persistent sexual abuse of a child outside Australia contrary to s 272.11(1), 1 count of use of a carriage service to cause child pornography material to be transmitted to self, contrary to s 474.19(1), 1 count of using a carriage service to transmit child pornography material contrary to s 474.19(1), 1 count of encouraging an offence against Division 272 of the Code contrary to s 272.19. All offences were contrary to the Commonwealth Criminal Code. Offender sentenced for additional state offences. The original sentence imposed 6 years and 6 months imprisonment with a 2 year and 6 month non-parole period. The Crown appealed on the basis that the total effective sentence and the non-parole period were manifestly inadequate.
Nature and Circumstances: An orthodox approach to whether an individual sentence is manifestly excessive or inadequate is to examine it having regard to the maximum sentence for the offence, the gravity of the offending conduct on the scale of seriousness and the personal circumstances of the offender. The facts and circumstances of count 1 show a serious example of an offence of its type. The offender travelled to the Philippines with the intention of engaging in sexual behaviour with a child, engaged in three separate acts of sexual penetration, paid the victim a small sum of money at the conclusion of each act, exploited the victim who was by reason of their age and economic circumstances, was vulnerable to the offender’s predations, planned the offending and engaged in highly sexualised and graphic communication.
Totality: A sentence of 6 years imprisonment for Count 1 was not so law as to be unjust or unreasonable. However, a sentence of 6 years and 6 months imprisonment does not adequately reflect the offender’s overall criminality. The term of 6 years and 6 months infringes the totality principle. Each of the offences involved offending of a different kind to count 1. Even if the global sentence of 6 years and 6 imprisonment stands, a non-parole period of 38% of the total sentence does not properly reflect the substantial seriousness of the overall offending and has the effect of undermining the sentencing objectives of proper punishment and the need to provide general deterrence.
Appeal allowed. Original sentence set aside. Offender re-sentenced to 8 years imprisonment with a 5 year non-parole period.
Nature and Circumstances: An orthodox approach to whether an individual sentence is manifestly excessive or inadequate is to examine it having regard to the maximum sentence for the offence, the gravity of the offending conduct on the scale of seriousness and the personal circumstances of the offender. The facts and circumstances of count 1 show a serious example of an offence of its type. The offender travelled to the Philippines with the intention of engaging in sexual behaviour with a child, engaged in three separate acts of sexual penetration, paid the victim a small sum of money at the conclusion of each act, exploited the victim who was by reason of their age and economic circumstances, was vulnerable to the offender’s predations, planned the offending and engaged in highly sexualised and graphic communication.
Totality: A sentence of 6 years imprisonment for Count 1 was not so law as to be unjust or unreasonable. However, a sentence of 6 years and 6 months imprisonment does not adequately reflect the offender’s overall criminality. The term of 6 years and 6 months infringes the totality principle. Each of the offences involved offending of a different kind to count 1. Even if the global sentence of 6 years and 6 imprisonment stands, a non-parole period of 38% of the total sentence does not properly reflect the substantial seriousness of the overall offending and has the effect of undermining the sentencing objectives of proper punishment and the need to provide general deterrence.
Appeal allowed. Original sentence set aside. Offender re-sentenced to 8 years imprisonment with a 5 year non-parole period.
