CJP v Tasmania [2015] TASCCA 9

Respondent: Acting Director of Public Prosecutions

Judgment Number: [2015] TASCCA 9

1. I agree with Tennent J that this appeal should be dismissed, for the reasons stated by her.
2. For the crimes that the appellant committed, the sentence of six years' imprisonment, with a parole ineligibility period of three years, is certainly a heavy sentence by current Tasmanian standards. However I do not consider the sentence to be manifestly excessive in all the circumstances. It may be that the time has come for consideration to be given to the imposition of longer sentences in this State for serious sexual crimes. According to a research paper published by the Sentencing Advisory Council in April 2013, sentencing levels in Tasmanian courts for sexual offences are lower than they are in other Australian jurisdictions: "Sex Offence Sentencing - Research Paper", at 37.

1. The appellant pleaded guilty to five counts of aggravated sexual assault contrary to the Criminal Code, s 127A(1)(a), two counts of producing child exploitation material contrary to s 130A, one count of accessing child exploitation material contrary to s 130D, two counts of indecent act with a young person contrary to s 125B, one count of possession of child exploitation material contrary to s 130C, and one count of assault with indecent intent contrary to the Police Offences Act 1935, s 35(3) (on complaint).
2. On 13 December 2013, Wood J sentenced the appellant in respect of this offending. She sentenced him to serve a period of six years' imprisonment with effect from 18 November 2013 in respect of the indictable matters, and a further term of four months' imprisonment in respect of the matter on complaint. It was ordered that the second sentence be served concurrently with the first, and that the appellant not be eligible for parole until he had served three years.
3. The appellant now appeals the sentence imposed. The only basis for the appeal is that the sentence was, in all the circumstances, manifestly excessive. No specific error on the part of the learned sentencing judge was identified. The submission in relation to the ground of appeal was, in effect, that the sentence imposed was so far outside the range of sentences which might be expected for this type of offending, that error was demonstrated.

1. The offending, the subject of all counts, occurred between September 2012 and May 2013. The victims of the offending were two sisters, aged seven and four. The appellant was aged between 23 and 24 years at the time of the offending, and he was the girls' second cousin. The children were the daughters of his cousin, AG.
2. At the time of the offending, AG was separated from her partner and was living with her two daughters and an older boy. The appellant was struggling with his own rent, and AG offered to let him come and live with her. He did so in December 2012. AG worked casually, and, both before and after the appellant moved into her home, the appellant would care for the children for short periods if AG was required to work. At about 11.30pm on 18 May 2013, AG woke to find her seven year old daughter, D, beside her bed. D told her mother the following:

"[The appellant] said I'm not allowed to tell it's a big secret. I'm telling you because it's rude. He rubbed his finger up and down my bum, my front bum. He said he wasn't going to wash his hands. I said that was gross. He poked his doodle out and asked if I wanted to touch it. He said 'it's not rude' and I said 'no'. He poked his fingers in and out of my hole. He asked me if he could kiss me on my bum, I said 'no' and he said 'can I lick you there I used to do it to my ex-girlfriend?' and he did it to me. I said 'it's not very nice and I want to pull up my pants'. As I walked out of the room he said 'Shoo it's our secret'."

1. D was crying. Her mother tried to calm her, and then gathered all her children and took them to her parents. She then telephoned police who arranged to meet her the next day. D told police what she had told her mother but with more detail. The appellant was later interviewed. He admitted the substance of D's allegations but said he could not be entirely sure what happened because he had had a few drinks. The appellant was asked if anything had happened with D's little sister, A. The appellant said a similar thing had happened with her a few days before, when he was babysitting. When pressed he admitted that, before that, he had taught A how to masturbate him and that he had done similar things to her, as he had done to D, on four occasions. He admitted he knew what he was doing was wrong but wanted to make himself feel nice. A was subsequently interviewed and told police what had happened to her.
2. Police then seized and examined the appellant's laptop computer. They found ten movies and one hundred and twenty three images. All were child exploitation material. The child A was depicted in a number of the images. By reference to what is described as the Oliver scale, A appeared in two category four images and 18 of the category one images. The images showed A's genitalia and in two images the appellant using his finger to spread the genitalia. The images were found to have been taken in September 2012 before the appellant moved into AG's home and on occasions when he was babysitting. When interviewed about the child exploitation material, the appellant made admissions and said he was trying to get sexual gratification when viewing the material.

1. All except one crime involved the four year old child A. The offending which involved A occurred when the appellant was babysitting her, both before and after he was actually part of her mother's household. The crime which involved the eldest child D occurred at a time the appellant was living in the household. On that occasion, the appellant entered D's bedroom using the pretext he was looking for a mouse. He committed sexual acts upon her, and persisted even when she told him she did not want to do what he wanted. When he had finished with her, he told her not to tell her mother. The offending involved penetration of her genitalia with his finger and tongue and the display of his penis with a request she touch it.
2. This offending occurred last in time and occurred after the appellant had already done similar things to D's younger sister. The last offending resulted in the apprehension of the appellant, because D reported it to her mother almost immediately after it occurred. The younger child had not reported any of the appellant's behaviour despite the fact that it had started some eight months before. She only did so after the appellant admitted acts against her and she was spoken to.
3. In the case of each child, the offending amounted to a gross breach of trust of children vulnerable because of their age and proximity. The children were under the applicant's sole care on a number of occasions and, in relation to A, the appellant took advantage of that unrestricted access. He sexually assaulted her and took photographs to use later to obtain sexual gratification. Offending only ceased when the appellant was caught. He did not stop voluntarily or make any attempt to remove himself from access to the children.
4. The impact on the children and the family has been devastating. AG described a good relationship with the appellant prior to this offending. She said she trusted him, her son looked up to him and, because the children did not see a lot of their father, she saw him as being a male role model for the children. She described the couple of days following the incident involving D as chaotic and heart breaking. The children did not want to return home initially. Each of the girls started bed-wetting and could not sleep properly. A's sleep patterns more or less returned to normal but D's did not. She was given medication to help her sleep for a number of months.
5. Wood J described the impact on the children in the following terms:

"Ms H has provided the Court with a victim impact statement revealing the impact of the crimes on the children and also herself. The children have exhibited disturbed behaviour. They are clingy and anxious when their mother is not with them. Both have nightmares. The eldest child has difficulty sleeping. They both see a psychologist and a general practitioner, Dr Clare Smith, with specialist qualifications in the area of child sexual abuse. They feel unsafe and insecure and need reassurance. The eldest has intrusive memories of the abuse. She feels unsafe at school. Ms H consults with specialists so that she can support her children and help them as much as possible. She is doing everything she can to minimise the harm to them. She is heartbroken about what has happened. Her suffering is profound. She describes how she feels she has let her children down and she thinks of this constantly. She is very worried about how the children may be affected in the long-term.

I have a comprehensive letter from Dr Clare Smith. She is a trained assessor of sexual abuse. She has outlined the effects upon the children and also outlines the various long-term effects of sexual abuse generally. She explains what is well known that there is the real prospect that the children will suffer long-term serious emotional or psychological harm."

In addition to the above, it appears from the victim impact statement provided to Wood J that the eldest child, though the least directly offended against, has suffered the most.

1. The offending appeared to escalate from September 2012 to when it ended in May the following year. It began with accessing child exploitation material which did not involve D or A. It then moved to abusing the child A and taking photographs of a sexual nature of her when the opportunity to do so arose during the mother's absence. When the appellant was then asked to move into the house where the girls were living some two months after the initial offending with A, he accepted and continued abusing A. She, because of her age, was clearly the most vulnerable of the two girls. The appellant then moved on to the eldest girl, D, but clearly underestimated his ability to keep her quiet. As to A, on the appellant's own admission, he taught her how to masturbate him. That was a shocking thing to do to a four year old.

Personal circumstances of the appellant and matters put in mitigation

1. The appellant was 24 years old at the time of sentence. He had no relevant prior matters. He was however convicted on three occasions of drink-driving, the last of which occurred in March 2013 and saw the appellant made the subject of a suspended jail term. There were convictions for dishonesty matters early in 2012. Some of the offending in the present case occurred during the currency of the suspended sentence order, although no application was made to Wood J in relation to any breach. The appellant's parents separated when he was young and he was brought up by his mother. He had limited contact with his father and had a turbulent relationship with his stepfather. He felt isolated at home having gone from being an only child to one in a blended family. He left home when he was 14 years old and lived thereafter in accommodation provided by youth services. He completed his schooling in year 13 at Hobart College and then obtained Housing Department rental accommodation. He had some employment history described as being generally in low skilled type of employment.
2. The appellant's counsel in her plea in mitigation said that during the course of his police interview, the appellant had expressed "regret" about what he had done and had experienced some "self-loathing". She also said that, "insofar as he has any insight he understands that the complainants underwent a frightening experience". Reliance was placed on a report by psychologist, Damien Minehan. Mr Minehan determined that while the appellant was stressed because of the situation he faced, he was not depressed nor did he have any other form of major mental illness.
3. At the time he saw Mr Minehan in August and October 2013, the appellant reported that over the last two years he had largely kept to himself and did not go out. As a result of this offending, he had lost all family relationships and had even been threatened by some family members. He was living at Bethlehem House and had contact only with other boarders there and a social worker. Mr Minehan said at pars52 and 53 of his report:

"52 Mr [P's] personality and self concept appear to be characterised by a generally negative self evaluation, self criticism and pessimism. His intimate relationships have tended to be tumultuous and characterised by conflict, often over matters of sexual infidelity. Socially he is withdrawn and isolated, with few relationships that he could characterise as valuable and warm.

1. Also of relevance to the offending is his tendency to be impulsive, risk taking and reckless. There is a history of impulsive acts and poor decision making that have included criminal behaviour."

Mr Minehan also said that behaviour indications from assessment might indicate that a specific sexual interest in pre-pubescent children might exist in the appellant. At the very least, however, he said that the appellant had chosen to use his victims as a sexual substitute. Mr Minehan recommended that the appellant take part in a sexual offender treatment program.

1. The appellant pleaded guilty, and that plea was indicated early. There was no suggestion either of the girls would be required to give evidence. However, while the appellant was entitled to some credit for that plea, the case against him was a strong one.

1. Counsel for the appellant submitted that, while a single count of aggravated sexual assault might not attract a custodial sentence, multiple counts ordinarily would. She referred to Professor Warner's text, Sentencing in Tasmania, 2nd ed at par11.425 where the author dealt with median sentences for multiple counts of aggravated sexual assault, indicating that, in the period 1987 to 2000, the median sentence for such crimes was 18 months. Counsel further submitted that the Court had recognised as a matter of principle that, for the crime of maintaining a sexual relationship with a young person under the age of 17 years, the offender should be subject to the same penalty as would have been imposed had the individual acts constituting the crime been charged as separate crimes: see DPP v T [2012] TASCCA 15 at [19]. Counsel also reviewed a number of what she described as comparable sentences, submitting that those attracting imprisonment for periods of two to six years often involved frequent and pervasive non-consensual acts, many of which included acts of sexual intercourse. A number of sentences were referred to, only two of which were of similar length to that in the present case.

1. Counsel for the respondent outlined in her submissions the various aggravating and mitigating features in this case, and submitted that the sentence was not manifestly excessive. She submitted that there were few mitigating factors. She also referred to the fact that some of the offending involved child exploitation material and that, in relation to the material which the appellant had accessed on the internet, that behaviour only encouraged the further production of such material. It also generally encouraged the continued degradation of children in the process of producing such material.

1. I find it useful as a starting point to refer to remarks of Wood J in the matter of Director of Public Prosecutions v STU [2012] TASCCA 7 at [59]-[63]. Her Honour there said:

"59 I have read the reasons of Evans J. I agree with his Honour's reasons and the conclusions he has reached with regard to grounds 1 and 2 of the appeal. However, I am unable to agree with the conclusion relating to ground 3 that the sentence was not manifestly inadequate. There is no need for me to recite the factual basis for the sentence imposed and the contentions of counsel. I am grateful to his Honour for his comprehensive summary of these matters, as well as his characterisation of the criminal conduct under consideration and the impact upon the victims.

60 I commence my consideration by making brief reference to some matters of general principle applying to the sentencing of offenders for sexual crimes involving children. General deterrence is an important consideration; in R v S [1985] TASSC 25 Neasey J at 4, referred to the importance of general deterrence 'in pursuance of the courts' duty to do what they can to protect children'. This is particularly so in cases when the perpetrator is in a position of trust to the victim: R v BJW [2000] NSWCCA 60; (2000) 112 A Crim R 1 at 20. Courts have an important role in protecting children by imposing sentences that will operate as a deterrent to those who may be inclined to engage in such conduct_._

61 The sentences that are imposed must reflect the community's concern about offences involving the sexual abuse of children, recognising the awareness that now exists within our society of the potential for victims to sustain substantial harm as a consequence of such offending: R v MJR [2002] NSWCCA 129; (2002) 54 NSWLR 368; DPP v DJK [2003] VSCA 109 per Vincent JA at par[26]. A related objective of the sentencing process is denunciation, thereby reinforcing society's values and expectations of its members: Ryan v R (2001) 179 ALR 193 per Kirby J at 118; Crowley v R [2003] TASSC 147 per Crawford J (as he then was) at par[14]. I refer to denunciation in the sense used by Evans J in in DPP v NOP [2011] TASCCA 15 at par[41] as that of 'appropriate vindication and to assuage informed public outrage'.

62 The vulnerability of children and the need for protection is marked in cases where the victims are very young. Children are particularly vulnerable in the situation of abuse carried out by a family member: R v BJW at 20 - 21.

63 Before turning to the circumstances of this case I make some observations regarding the use of statistics, and the use of previous sentences for the offence of maintaining a sexual relationship with a young person under 17. Sentences imposed for this crime vary enormously as a reflection of the vast differences in the criminal conduct and circumstances that are captured by the offence: DPP v M [2005] TASSC 14, at par[9] per Slicer J, and par[33] per Evans J. For this reason, I consider that statistics drawn from the full range of cases without discriminating between categories of conduct are not helpful in the sentencing process."

1. Her Honour, in the case of STU, dissented on the question of whether a sentence of two years' imprisonment in respect of two counts of maintaining a sexual relationship with a young person was inadequate. She determined that it was. The factual basis in that case was, however, very different from the present case. I have set out her comments as disclosing matters of principle, with which I agree.
2. The primary focus in considering whether the sentence in the present case was manifestly excessive or not must be on the facts of this case and not on sentences imposed in other matters which may relate to sentencing for sexual offending, but where discrete facts are markedly different. In this case those facts are:
   • The appellant's offending began with the accessing of child exploitation material.
   • It moved to actual sexual acts against a four year old girl in circumstances where he was a relative of that child and was caring for her at the request of her mother.
   • That gave rise to a gross breach of trust.
   • Part of the sexual acts were photographed and were generally of the genitalia of that child.
   • The appellant used the images he created and accessed to gain sexual gratification.
   • The appellant thereafter accepted an invitation to live in the same household as the four year old and her seven year old sister.
   • He accepted that invitation thus placing himself even closer to his victims.
   • He continued sexual acts against the four year old on occasions where he was asked by her mother to babysit.
   • He then committed a sexual act against her older sister, also in her own home, but when her mother was in another room.
   • The sexual acts involved penetration with fingers and a tongue, teaching the four year old to masturbate him and then having her repeat that act.
   • The impact on the two girls and their mother has been devastating and ongoing.
3. It is accepted that there was no act involving penetration with a penis. However the acts in relation to the four year old occurred over several months, the appellant did not cease his activities voluntarily, and he attempted to cover his activities by telling both girls they should not tell anyone. There were 11 crimes in all. As her Honour said in Director of Public Prosecutions v STU, general deterrence is an important consideration in determining an appropriate sentence pursuant to the Court's duty to protect children. That is particularly so where the offender was in a position of trust. The vulnerability of these girls due to their age and the relationship with the appellant was also important.
4. There was little which could be relied upon to mitigate the need in this case for a significant sentence to reflect the matters identified by Wood J in Director of Public Prosecutions v STU save for the plea of guilty, and that the appellant was young with no relevant prior offending. Mr Minehan's report identified a number of features about the appellant, but none were so marked as to warrant special consideration.
5. I accept that the sentence imposed in this case was a high one having regard to the sentences for sexual offending to which counsel referred. I am, however, mindful of the need for care in accepting that those sentences establish a "range" which must in all cases dictate no sentence outside it may be imposed. The facts of this case are such, in my view, to raise the need for a significant deterrent sentence.
6. I am not in the circumstances persuaded that, when regard is had to the factors I have identified, both in relation to matters of principle and the facts of this case, error has been demonstrated by her Honour and that the sentence is manifestly excessive.
7. I would dismiss the appeal.

1. I agree with Tennent J and would also dismiss the appeal.