IN THE COUNTY COURT OF VICTORIA
Revised
(Not) Restricted
Suitable for Publication
AT MELBOURNE
CRIMINAL JURISDICTION
Case No. CR-15-01508
COMMONWEALTH DIRECTOR OF PUBLIC
PROSECUTIONS
v
MELKIAS OKOKA
---
JUDGE:
CHIEF JUDGE KIDD
WHERE HELD:
Melbourne
DATE OF HEARING:
26 November 2015
DATE OF SENTENCE:
11 December 2015
CASE MAY BE CITED AS:
DPP (Cth) v OKOKA
MEDIUM NEUTRAL CITATION: [2015] VCC
REASONS FOR SENTENCE
--Subject:
CRIMINAL LAW
Catchwords:
Sentence –
Legislation Cited:
Cases Cited:
Sentence:
--APPEARANCES:
Counsel
Solicitors
For the CDPP
Ms A. Payten
Solicitor for the CDPP
For the Accused
Mr S. Payne
Victoria Legal Aid
VICTORIAN GOVERNMENT REPORTING SERVICE
7/436 Lonsdale Street, Melbourne Vic 3000 - Telephone 9603 9134
HIS HONOUR:
1
Melkias OKOKA you have pleaded guilty on 26 November 2015 in this
Court to two charges in the Indictment.
Charge 1 was the
Commonwealth charge of using a carriage service to access child
pornography material contrary to s.474.19(1) of the Criminal Code Act
1995 (Cth). The period of access for which you are charged is from 6
November 2013 to 8 April 2015.
2
Mr Okoka, you can actually remain seated for the moment. I will tell you
when you need to stand.
3
Charge 2 was the State charge of knowingly possessing child
pornography contrary to s.70(1) of the Crimes Act 1958 (Vic). The
maximum penalty for the access charge is one of 15 years, it having
been increased from ten years in 2010, whilst the maximum charge for
possession is five years' imprisonment. You are currently aged 26 years,
having been born on 8 December 1989, and at the time of this offending
you were aged 25 years.
SUMMARY OF OFFENDING
4
The offending is detailed in Exhibit A, the summary of prosecution
opening, which was accepted by your counsel as representing the facts
upon which I am to sentence you, Mr Okoka.
5
On 9 April 2015, Australian Federal Police executed a search warrant at
your home after they received information your IP addresses were being
used to access child pornography files.
6
Seized as part of that search was one Toshiba laptop, one iPhone 5S,
one iPhone 4S, one Gigabyte Tower Computer including an external
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hard drive and disc, one Fujitsu hard drive and a Western Digital hard
disk drive.
7
Following the execution of the warrant, you participated in a taped
Record of Conversation in which you made admissions regarding the
downloading of child pornography material, both images and videos.
You did not participate in a formal Record of Interview as police felt they
had sufficient information as a result of the information you had already
provided.
8
Analysis of the six seized devices revealed a total of 8,235 child
pornography files.
9
Child pornography material is categorised in accordance with the
Australian National Victim Identification Library and the first category
relates to depictions of children containing no sexual activity, but may
involve nudity and emphasis on genital areas. Of the category one files,
there were 3,106 images and 118 videos, which predominantly included
a series of photographs depicting girls in sexually suggestive poses. The
girls were predominantly approaching or at the early stages of teenage
development, however a small number of infants were also depicted. It
was accepted that 39.4 per cent of the child pornography files were
classified as category one material.
10
The second category involves solo masturbation by a child or sex acts
between children. There were 292 images and 120 videos that were
category two files. This included a video of three prepubescent girls
masturbating each other, and an image of a young female child with the
camera close to her vagina with a Barbie doll pointing to the vagina.
11
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The third category involves non-penetrative sexual activity between
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children and adults, of which there were 1,508 images and 55 videos.
The category three files included both adult males and females
performing sexual acts with children, including masturbation with young
children. One video includes a young prepubescent female with her face
partially covered being touched by an adult hand. And one image shows
an infant’s vagina being touched by a penis.
12
The fourth category involves penetrative sexual activity between children
and adults.
There were 1,696 images and 649 videos within this
category. The category four files included penile-vaginal penetration of
females and penile-anal penetration of boys, including an infant girl and
infant boy. It was accepted that 28 per cent of the child pornography files
were classified as category four material.
13
The fifth category involves sadism, bestiality, humiliation or child abuse
and there were 146 images and 52 videos within this category. One
such video depicts a young female being vaginally penetrated by a sex
aid which appears to have blood on it, whilst being restrained. Another
video depicts a primary school-aged female being restrained by her
wrists and chest, whilst being digitally penetrated by an adult male.
14
The sixth category involves anime, cartoon, comics and drawings
depicting children engaged in sexual poses or activity, of which there
were 493 images of such category. One image was of a large adult male
penetrating a young female whilst she was restrained.
15
Exhibit B was a sample of such child pornography material prepared by
the Informant. I have viewed that sample.
OBJECTIVE SERIOUSNESS OF OFFENDING
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16
In his written submissions, your counsel conceded this offending
represented a serious example of the offences in question. I agree. It is
certainly not lower level offending. There are several factors which make
your offending serious:
17
The sheer number of images/videos - in excess of 8000 which makes it
a large volume of material. A number of children are depicted across all
the material in your possession;
18
The gravity of the images - with a significant number (nearly 50%) of files
falling within categories 3 and 4, and some in category 5. The images
are vile and depraved. The images, especially in the high categories,
depict appalling exploitation of young children;
19
The lengthy duration of your offending. The offending was sustained and
repeated, rather than fleeting or spontaneous.
20
Your counsel submitted that although not strictly mitigatory, this
offending lacks some of the other aggravating features seen by these
Courts for child pornography offences involving a large volumes of files.
He submitted your offending lacks sophistication regarding the
classification and storage of the child pornography material, that you had
not engaged in either the sale or distribution of the material and that you
had not profited in any way from it. I accept these submissions.
21
Your counsel also relied upon the fact that the majority of offending
occurred in a 2 month period between 13 February 2015 and 8 April
2015. I take into account that the offending is primarily concentrated on
this more limited period. That said, the offending forms part of a course
of conduct over a 17 month period. You still accessed a not insignificant
quantity of material before the February 2015 images. You first accessed
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child pornography material on 6 November 2013. From that day to
February 2015, you accessed approximately 1000 files with 798 being
accessed on a single day, being 25 July 2014. The remaining 7000
images were accessed in a concentrated period between 13 February
2015 and 8 April 2015 being the day before the police executed the
search warrant. What has occurred is that your offending has escalated
in the period immediately prior to the attendance of the police at your
house.
22
In regards to the means by which you downloaded the files, Mr Payne
submitted that in 2015, you used the - lawful – ‘Vuze application’. He
submitted you did not actively search for child pornography files. This
application had links to child pornography material, which you pursued.
Even accepting the submission put on your behalf, it really does not
mitigate your overall offending. First, your counsel submitted that this
could only have relevance to the material you accessed initially in
February 2015. It also does not account for your access to the material
in 2013 and 2014, when according to your counsel you were not using
this programme. Second, even when the links presented themselves to
you in these circumstances, you still actively pursued those links
knowing that you were accessing child pornography. Third, your counsel
accepted that you must have engaged in searching for child pornography
at some stage. That of course is an inescapable inference. Yours is not
a case involving a moment of fleeting access, or access on a few
occasions. Your offending involved sustained and ultimately escalating
access over a period of time. You kept on returning to these images
despite being confronted by the obvious pictorial evidence of child
abuse. In the end, your counsel accepted this "Vuze application"
argument really did not take you very far.
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MATTERS PERSONAL TO YOU
BACKGROUND AND DIFFICULT UPBRINGING
23
You were born in West Papua, Indonesia. You came from a relatively
poor and humble village. My Payne took me to your difficult upbringing;
your mother passed away in childbirth when you were five years of age
and you then spent time living with aunties until your father moved to a
larger city and remarried. I take your difficult background into account.
24
To your credit, you were a good student, having received a scholarship
upon completing the equivalent of Year 12. You studied a degree in
social policy and completed a nine-month English language course. You
then came to Australia in 2009 to pursue further study.
You were
enrolled in marketing management at Deakin University, however you
did not enjoy the course and eventually your scholarship was cancelled.
SEPARATION FROM YOUR FAMILY AND PROBLEMS AT HOME IN
WEST PAPUA
25
You were involved in political activities in relation to West Papua. After
your scholarship was cancelled, you were contacted by the authorities
in West Papua who demanded that you return home immediately. You
were threatened that if you did not, your father would be imprisoned.
26
Due to your political activities, you were granted political asylum. On the
strength of that threat, your father moved the family away from the city.
You determined it would be safer to cease contact with your family and
you have not spoken to them for over two years for fear that this might
bring them to the attention of authorities.
27
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You are a permanent resident of Australia and have a citizenship
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application on foot. Your counsel does not advance any argument in
mitigation relating to your immigration status. It is put forward not as a
mitigating factor but as an explanation for why you have not had recent
contact with your family.
28
The fact that you will be imprisoned far from your family and out of
contact with your family will, however, make prison more burdensome
and I will give that some weight.
POSITIVE CONTRIBUTION AND WORK ETHIC
29
To your credit you started work at the age of 13 collecting and carting
river rocks, and until you left for Australia you worked as a motorcycle
taxi driver in Jayapura. Since ceasing your studies you have found it
difficult to obtain regular ongoing work, though you have worked casually
picking fruit, mowing lawns and have volunteered at a radio station to
gain experience. Once you put this matter behind you are anxious to
enter the work force on a permanent basis. It was submitted on your
behalf that you have a positive work ethic and through your various
occupations you have demonstrated an ability to be a productive and
contributing member of society. I accept that and take it into account.
RELATIVE YOUTH
30
I take into account that you are 26 year of age and are thus relatively
youthful.
LACK OF PRIOR OFFENDING AND GOOD CHARACTER
31
You have no criminal record and are obviously prior to this matter of
good character. I take that into account.
YOUR
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IMMEDIATE
COOPERATION
7
WITH
POLICE
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ADMISSIONS
32
Your counsel submitted that this offending is mitigated by your
cooperation with the authorities, having been so forthcoming with police
upon the execution of the warrant, and you have maintained that position
since. I accept that, but note you were empathic that you had only
accessed the material for a period of two months, when in truth your
access to child pornography extended to 17 months.
EXPLANATION FOR OFFENDING
33
Your offending occurred in the context of social isolation; you being a
sexually inexperienced young man from a difficult background and a
different cultural background, unemployed for periods with too much
time on your hands and disconnected from the West Papuan community.
You have recently formed a relationship with a woman from West Papua,
this being your first sexual experience at the age of 26.
34
I take these matters into account, including your social isolation, though
I note that social isolation is not uncommon in cases or offending of this
type.
REMORSE AND INSIGHT INTO OFFENDING
35
Mr Payne submitted you had shown remorse and insight into the
offending by virtue of your early admissions and cooperation with police,
and by you entering an early plea of guilty.
36
Tendered as part of that plea was an outline of defence submissions and
two reports of Carla Lechner, psychologist.
37
You have expressed shame and embarrassment for your actions to Ms
Lechner.
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38
That said, while you have shown some insight into the wrongfulness of
your offending, this insight is incomplete. Ms Lechner reports:
“He admits being aroused by the material that he viewed, including
child images. He appears to have developed an addiction whereby
he would view material even though he felt that it was wrong –
“somehow I kept watching and watching … I was really curious to
see… it felt strange and weird..”
“Whilst Mr Okaka was able to identify viewing child pornography as
wrong, he struggled to explain why this was the case. This appears
to be a total gap in his education; he seems surprised to learn that
it is exploitative and viewing pornography creates more of a
market.”
39
The learned prosecutor conceded your cooperation with authorities and
plea of guilty provides some evidence of remorse for your actions.
However, she submitted you have limited insight as evidenced by
Ms Lechner’s observation that you are unable to say why child
pornography is wrong.
40
The question of your insight and remorse is a complex one. I consider
you are genuinely shameful and contrite for your conduct, and you do
have some appreciation that what you did was wrong. Your insight,
however, is not yet fully developed.
PROSPECTS FOR REHABILITATION
41
The prosecutor submitted that due to your limited insight into your
wrongdoing that the Court should be guarded in making any positive
finding regarding your prospects of rehabilitation.
42
I agree that your less than full insight qualifies your prospects of
rehabilitation to some extent, though there remain a number of positive
indicators including:
(1) You are young;
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(2) You have no criminal priors;
(3) You have a good work ethic;
(4) You have shown a remorse and exhibited some insight;
(5) You took responsibility for your actions by confessing and pleading
guilty;
(6) You have engaged the services of a trainee priest in your local parish
to provide informal counselling to assist you, which is to your credit.
43
Mr Payne also relied on Ms Lechner’s report where she stated your risk
of re-offending was low, though this must be weighed against her finding
that you lack full insight into your offending, and her finding that you fulfil
the criteria of Paedophilic Disorder, given the longevity of your offending,
and that you displayed aberrant sexual interests.
44
I have concluded that your prospects are reasonably favourable. They
will no doubt be improved by a specific sexual offender program.
PLEA OF GUILTY
45
You indicated a plea of guilty on 28 August 2015 at the committal
mention.
conjunction
I accept this was at the earliest opportunity.
with
your
admissions,
acceptance of responsibility.
demonstrates
This, in
remorse
and
It also shows a strong willingness to
facilitate the course of justice.
46
I will come to the objective utilitarian benefit in a moment, but the
utilitarian benefits which flow from a plea may also inform the extent of
the discount to be allowed for the offender’s willingness to facilitate the
course of justice. The extent to which the course of justice is actually
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CDPP v Okoka
facilitated, namely through costs and resource savings, in consequence
of an offender’s plea of guilty may inform the degree of the offender’s
intention to facilitate the course of justice.
47
In this case, Mr Okoka, the fact that you made admissions and cooperated with authorities and pleaded guilty at the earliest time - which
did in fact result in savings to the criminal justice system - shows a high
level of your willingness to facilitate the course of justice.
48
Extensive written submissions, supplemented by oral submissions, were
made by the prosecutor on behalf of the CDPP and by the CDPP himself
that I could not take into account a purely objective assessment of the
utilitarian value of your plea of guilty to Charge 1, being the
Commonwealth charge.
49
I have decided that I will make allowance attributable solely to the actual
utilitarian benefit to the administration of justice, independently of
subjective
factors,
including
your
willingness
to
facilitate
the
administration of justice. That is how I shall approach both the State and
Commonwealth charges. I have explained why I have approached the
matter in this way in an Addendum, which I incorporate into these
reasons. I will publish that Addendum with these reasons. I do not
propose to read them.
50
Having said that, I note the parties’ submissions on the plea that this
case is not one where the dispute on this issue will make a substantial
difference. The position taken by the CDPP is likely to have a significant
impact on the discount for a plea of guilty where no allowance, or only
limited allowance, is made within the discount for the subjective criteria.
That might arise where the plea is entered out of self-interest or where
the plea is entered very late. That is not your case.
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VERDINS NOT RELIED UPON
51
I note your counsel does not rely upon any limb of Verdins.
SPECIFIC AND GENERAL DETERRENCE & DENUNCIATION
52
Specific deterrence still has a role to play in this sentence in light of your
less than complete insight into the wrongfulness of your offending, the
gravity of your offending, and the fact that you fulfil the criteria for a
diagnosis of Paedophilic Disorder.
53
The learned prosecutor submitted that general deterrence and
denunciation were significant sentencing principles for this offending. I
agree. General deterrence is regarded as the paramount consideration
for offences of this kind because of the public interest in suppressing the
use of child pornography. Your counsel accepted that these are weighty
matters in your sentencing.
54
The ready availability of pornographic material involving children,
particularly on the internet, demands that general deterrence must be a
central consideration.
The material in question cannot come into
existence without exploitation and abuse of children somewhere. Those
who use the product feed upon and encourage that exploitation.
55
For child pornography offences, less weight is given to an offender’s
prior good character because it has been the experience of the courts
that such offences are committed frequently by persons of otherwise
good character.
56
Ordinarily a custodial sentence is warranted for this type of offending.
57
It was the Crown's position that the only appropriate sentence is one
which involves a component of immediate imprisonment in your case.
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58
Mr Payne, your counsel, submitted that you be assessed for a
Community Corrections Order, and subject to a favourable assessment,
be sentenced to a Community Corrections Order with conditions
targeted to this offending.
59
In my view, the sentencing process of general deterrence, denunciation
and protection of the community cannot be sufficiently served by the
making of a Community Correction Order alone, having regard to the
type of these offences and the objective seriousness of your particular
offending. Despite your good character and your reasonably favourable
prospects, and the other factors advanced in your favour which I have
accepted, I have concluded that the overall or global sentence must
include a component of actual imprisonment.
60
I will temper the sentence, especially the actual custodial component as
much as I can in light of those mitigating factors advanced by your
counsel, and which I have accepted, including your personal
circumstances.
DOUBLE PUNISHMENT AND TOTALITY
61
I am told that all the images you possessed, which forms the basis of
charge 2, were accessed by you and are the subject of Charge 1. Clearly
there is a very significant overlap in your conduct and I need to be
mindful not to double punish you, and to bear in mind the principle of
totality. Of course I must also structure the sentence in a pragmatic
fashion given that I am imposing sentences under two different regimes.
SENTENCE
62
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Mr Okoka would you please stand.
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CDPP v Okoka
63
On Charge 1, being the Commonwealth charge, I propose to convict and
sentence you to 15 months' imprisonment, but direct that you be
released after five months' gaol upon you entering into a recognisance
of the sum of $2,000 to be of good behaviour for a period of 3 years.
That sentence is to commence this day.
64
Before I make the order, I will explain to you the purpose and the effect
of the proposed recognisance order, and the consequences that may
follow if you, without reasonable excuse or cause, fail to comply with the
conditions of the proposed order.
65
The purpose and effect of the recognisance order is to grant you
conditional freedom after you have served five months' imprisonment.
66
It requires you to be of good behaviour for a period of three years after
your release.
If you commit a further offence in breach of the
recognisance to be of good behaviour in that three year period after your
release, then unless you can show a reasonable excuse for committing
a further offence or offences, you will be dealt with for that breach and
re-sentenced. You may have to pay $2,000 and you may have to serve
immediately the remaining term of imprisonment, which is ten months. I
should also tell you that you or an authorised person, may apply to the
court to vary or discharge the recognisance in accordance with s.20AA
of the Commonwealth Crimes Act (1914).
67
On Charge 2 I propose to impose a Community Correction Order for a
period of three years, to commence immediately upon your release from
prison, but I can only do so with your consent.
68
So I am going to read to you or summarise to you the conditions, and
then I will ask whether you consent to it.
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69
The following conditions will be attached to the Community Correction
Order. The mandatory terms that apply to all Community Correction
Orders are, you must not commit another offence for which you could be
imprisoned during the time that the order is in force. You must comply
with any obligation or requirement prescribed by the Sentencing
Regulations (2011). You must report to and receive visits from the
Secretary to the Department of Justice, or his or her delegate, which is
essentially the Community Correctional Services. You must report to
Heidelberg Community Correctional Services before 4 pm within two
clear working days of your release from gaol. You must let a Community
Corrections Officer know within two clear working days of your changing
your address or job. You must not leave Victoria without first obtaining
permission to do so from Community Corrections. And you must obey
all lawful instructions from and directions from Community Corrections.
70
The conditions that apply in addition to the mandatory terms are as
follows. You must undergo treatment and rehabilitation in accordance
with s.48D of the Sentencing Act. Namely, you must undergo Offending
Behaviour Programs as directed, including the relevant Sex offender
program, aimed at addressing factors relating to your offending. You
must also be under the supervision of a Community Corrections officer
pursuant to s.48D of the Sentencing Act.
71
I should tell you that if you do not comply with all the requirements of the
Community Correction Order, then you are likely to be brought back to
Court and be resentenced in relation to the charge, in which case you
may well be sentenced to a further period in gaol
72
Now, Mr Okoka, I am now going to ask you whether you consent to the
terms and conditions of the proposed community corrections order, and
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I will be assisted by counsel to see that he has been properly informed
as to the affect, and if you want to speak with Mr Okoka, you are
welcome to.
73
MR PAYNE: If I may, Your Honour.
74
HIS HONOUR: Yes.
75
MR PAYNE: I'm grateful, thank you. He does consent.
76
HIS HONOUR: Mr Okoka, can you please confirm. Do you consent to
the Community Corrections Order in those terms?
77
OFFENDER: Yes.
78
HIS HONOUR: Madam Prosecutor, before I formally come to pronounce
the orders, which I will do forthwith, are they all in order and correct?
79
MS PAYTEN: Yes, Your Honour. The only other matters which Your
Honour may be coming to is the period of pre-sentence detention.
80
HIS HONOUR: Yes, I will come that. Well, why don't you tell me that
right now?
81
MS PAYTEN: Fifty-five days, Your Honour.
82
HIS HONOUR: Not including today?
83
MS PAYTEN: Not including today. And Your Honour, the only other two
matters are the SORA obligations, the Sex Offenders Registration Act
obligations, given the offender has been convicted on two class two
offences.
84
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HIS HONOUR: Yes.
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85
MS PAYTEN: I propose to hand up the recognisance release order for
Your Honour's signature. I have shown that to my learned friend.
86
HIS HONOUR: Yes, thank you. All right, well Mr Okoka if you remain
standing and I will just formally pronounce these orders.
87
I sentence you as follows.
88
In relation to Charge 1, being the Commonwealth charge, you are
convicted and sentenced to 15 months' imprisonment, but I direct that
you be released after five months' gaol upon you entering into a
recognisance of the sum of $2,000 to be of good behaviour for a period
of three years. That sentence is to commence this day
89
In relation to Charge 2, being the state offence, you are convicted and
sentenced to a Community Correction Order for three years in the terms
and conditions that I have just set out. That sentence is to commence
upon your release from imprisonment, which you will serve pursuant to
the sentence imposed on Charge 1.
90
So I need to sign this recognisance; is that right?
91
MS PAYTEN: Yes, Your Honour. And the offender does as well.
92
HIS HONOUR: I will get Mr Okoka to sign it first. Moving onto the other
matters, I direct that the pre-sentence detention in this matters is to be
declared as 55 days, not including today.
SECTION 6AAA
93
Pursuant to provisions of s.6AAA of the Sentencing Act 1991 (Vic), I
indicate that had you not pleaded guilty I would have sentenced you to
a global sentence over both charges of 30 months' imprisonment with 12
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CDPP v Okoka
months to be immediately served.
SEXUAL OFFENDER REGISTRATION
94
These crimes are registrable offences pursuant to s.7 of the Sex
Offenders Registration Act 2004 (Vic), by your plea to two Class 2
offences. You will be a required to be subject to reporting conditions for
a period of 15 years.
95
I will now ask that you sign all the relevant documents, which include the
Community Correction Order, the recognisance release order, and the
sex offenders registration.
96
There just remains one more matter. I mentioned as I was delivering the
sentencing remarks that I incorporate into those sentencing remarks an
addendum which is effectively my ruling on this issue concerning the
objective utilitarian discount. I will hand down to the parties a typed
version of that ruling. There is a copy for each party. Can I inform the
parties that that will be incorporated into the revised sentencing remarks,
so at the moment it technically remains unrevised, but it will be
incorporated, I anticipate, in those terms into the revised sentencing
remarks when they are fully published.
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97
MR PAYNE: As Your Honour pleases.
98
MS PAYTEN: Certainly, Your Honour.
99
HIS HONOUR: Is there anything else?
100
MS PAYTEN: Nothing further, Your Honour.
101
MR PAYNE: No, Your Honour.
102
HIS HONOUR: Thank you, adjourn the court.
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(See Addendum attached.)
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ADDENDUM TO SENTENCING REMARKS
CDPP v OKOKA
Utilitarian benefit section 16a(2)(g) of the Crimes Act 1914
(Commonwealth)
1.
In this case the CDPP has submitted that under Commonwealth sentencing law
for Commonwealth offences the discount for a plea of guilty is confined to the
three subjective factors – remorse, acceptance of responsibility and the
offender’s willingness to facilitate the course of justice. It is submitted that no
benefit can be given for the purely objective utilitarian value of a plea of guilty,
such as the fact that the plea had saved the community the expense of a
contested hearing.
2.
The argument advanced by the CDPP (in writing) includes the following key
propositions:
a) At common law, the discount for a plea of guilty is confined to subjective
matters. There is no discount for the objective utilitarian benefit. The High
Court decision in Cameron v The Queen (2002) 209 CLR 339 is cited in
support of this proposition;
b) Section 16A(2)(g) of the Crimes Act 1914 (Commonwealth) provides that
the “court must take into account such of the following matters as are
relevant and known to the court …..if the person has pleaded guilty to the
charge in respect of that offence – that fact’. The CDPP submits that the
terms of section 16A(2)(g) have not modified the common law. The
provision does not state in clear language that the objective utilitarian value
to a plea is to be taken into account;
c) It follows, so the argument goes, that the common law (which precludes a
discount for the purely objective utilitarian factors) continues to apply
unaltered.
3.
As I understand the CDPP’s argument, he does not contend that Cameron
stands directly for the proposition that the objective utilitarian benefit is not
available under s16A(2)(g) of the Crimes Act 1914. He could not do so since
20
Cameron did not concern section 16A(2)(g) at all but a Western Australian
provision albeit in the context of federal jurisdiction. The CDPP’s argument
turns, at first instance, upon how the decision of Cameron is to be read in
relation to a common law principle, against which s16A(2)(g) is then to be
construed.
4.
There are three difficulties with me acting upon the CDPP’s submission as a
sentencing judge at first instance in this State.
5.
First, there is a recent pronouncement from Court of Appeal (Vic) that at
common law a sentencing judge is required to give a discount for the purely
objective utilitarian benefit. Contrary to the position advanced by the CDPP,
Redlich JA and Curtain AJA1 in Phillips v The Queen2 accepted that the
position at common law was as stated by the High Court in Siganto v The
Queen:
a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is
usually evidence of some remorse on the part of the offender, and second, on the
pragmatic ground that the community is spared the expense of a contested trial. The
extent of the mitigation may vary depending on the circumstances of the case.3
6.
Importantly, Redlich JA and Curtain AJA concluded:
At common law it can therefore be said that there has been a very broad and long standing
acceptance that a sufficient and necessary rationale for the public interest in providing
a discount for a plea of guilty is its utilitarian benefit and that there is no requirement
that there be present any of the subjective criteria before the discount is allowed. 4
7.
Cameron was referred to in Phillips but it was never suggested by the Court (as
the CDPP does here) that Cameron modified or refined the common law
position as stated in Siganto.
8.
The CDPP’s argument is founded upon the proposition that the common law
excludes from the sentencing discretion any consideration of the objective
utilitarian benefit. To accept the CDPP’s argument, I would be required to
1
2
3
4
with whom Maxwell P agreed and Harper JA substantially agreed
Phillips v The Queen [2012] VSCA 140; (2012) 27 VR 594 at [37]
(1998) 194 CLR 656 at 663-4 [22] [emphasis added]
Phillips v The Queen [2012] VSCA 140; (2012) 27 VR 594 at [48] [emphasis added]
21
question our own appellate Court’s clearly stated position on the objective
utilitarian discount at common law. I am not prepared to do that. I consider I am
bound by Phillips.
9.
Second, the common law aside, the Court of Appeal (Vic) has also found that
the language in section 5(2)(e) of the Sentencing Act 1991 (Vic) compels the
conclusion that the objective utilitarian benefit must be taken into account. This
is because the language obliges the sentencing judge to take into account the
plea of guilty: this mandatory language leads inevitably to the conclusion that a
judge must take into a plea of guilty even where an offender pleads guilty solely
out of self-interest, without any concern as to whether in so doing he was
facilitating the course of justice, and shows no remorse.5
10.
Like section 5(2)(e) of the Sentencing Act 1991 (Vic), section 16A(2)(g) of the
Crimes Act 1914 obliges a judge to take into account the fact of the plea of
guilty (assuming, as it must be, ‘relevant and known’). Allowing for the
possibility that different though similar statutory provisions might have different
meanings with different results, if the reasoning adopted by the Victorian Court
of Appeal in Phillips in its interpretation of section 5(2)(e) were applied in the
construction of section 16A(2)(g), the result should be the same, namely it
incorporates the purely objective benefit.
11.
The CDPP in substance contends that the approach taken by the Victorian
Court of Appeal to the interpretation of section 5(2)(e) is erroneous. The CDPP
submits that the fact that a statutory provision obliges a judge to take into
account a plea of guilty (without more), does not compel the conclusion that
objective utilitarian considerations are to be taken into account.
5
See R v RND [2002] VSCA 191 at [18]; Phillips v The Queen [2012] VSCA 140; (2012) 27 VR
594 at [49]-[50]. Section 6AAA of the Sentencing Act 1991 (Vic) was said to reinforce this
conclusion.
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12.
Whatever the merits of the CDPP’s arguments, the CDPP effectively submits
that the line of reasoning in RND and Phillips is wrong. I am bound by such
pronouncements.
13.
Third, the Court of Appeal (Vic) has up until recently endorsed, without demur,
the practice of taking into account the purely objective utilitarian value of the
plea when sentencing for Commonwealth offences. Let me take one example.
The case of Barbaro v The Queen Zirilli v The Queen [2012] VSCA 288 involved
Commonwealth drug related offences committed by offenders who had shown
very limited evidence of remorse. They received, however, a purely utilitarian
discount. The Court of Appeal (Vic) said this:
The place which remorse should take as a sentencing consideration has been the subject of
recent judgments in this Court. As was emphasised by Redlich JA and Curtain AJA in
their joint judgment in Phillips, the utilitarian value of a plea of guilty will — in all but the
most exceptional cases — entitle the offender to a reduction in what would otherwise
be an appropriate sentence; and specific error may arise where the sentencing judge
fails to accord either that entitlement, or the reduction which ought to be allowed for the
subjective factors of remorse, acceptance of responsibility and a willingness to facilitate
the course of justice. The sentencing judge gave full recognition to this principle.6
14.
I am bound by that practice or approach.
15.
I note that Barbaro was appealed to the High Court but on a different issue. The
approach taken by the Court of Appeal on this plea discount issue does not
appear to have been questioned despite reference being made to the need to
recognise the utilitarian benefit in a plea.7
16.
In summary, the CDDP submitted that the position in Cameron conflicts with
Phillips and as the High Court ‘trumps’ an intermediate appellate Court, I am
abound by the High Court.
I have no doubt that this is correct where that
conflict is plain and uncontroversial, and where the High Court decision postdates our own intermediate appellate decision.
6
7
At [32] [emphasis added]
Barbaro [2014] HCA 2; (2014) 253 CLR 58 at [31]
23
17.
That is not the situation which confronts me. The problem is that the Victorian
Court of Appeal in Phillips has accepted that at common law the purely
utilitarian discount is available. It did so post Cameron and whilst being aware
of Cameron. If the CDPP wants to contend that Cameron dictates a different
conclusion than that reached in Phillips then the appropriate forum in which to
question the correctness of Phillips is the Court of Appeal, not here.
18.
Similarly, to the extent that the CDPP gains support for his arguments from
decisions of the New South Wales Court of Appeal which have construed
s16A(2)(g) of the Crimes Act 1914 in the manner contended for by the CDPP,
those decisions have proceeded upon the basis that there is no pure objective
utilitarian discount available for a plea of guilty at common law. As I have said,
this conflicts with Phillips.
19.
I do not question any of the principles stated in Atanackovic v the Queen [2015]
VSCA 136, 297 FLR 81 in relation to the importance of national consistency
and the principle of comity in the sentencing of federal offenders. But in the
circumstances raised in this matter that needs to be achieved at the appellate
level.
20.
I have therefore decided that in this case I will proceed upon the basis that the
discount for a plea of guilty in relation to the Commonwealth offender can
include a component attributable solely to the purely objective utilitarian value
of the plea.
____________________
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