CR v R

Court of Criminal Appeal (NSW)|2020-10-21|Before: Hoeben CJ, Harrison J, Bellew J

Solicitors: Blair Criminal Lawyers - Applicant C Hyland - Solicitor for Public Prosecutions (NSW) - Respondent File Number(s): 2016/14866; 2017/80218; 2011/364001 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: [2019] NSWDC 884 Date of Decision: 3 December 2019 Before: Wilson SC DCJ

INTRODUCTION

CR (the applicant) pleaded guilty before the Local Court to the following offences: 1. produce child abuse material contrary to s 91H(2) of the Crimes Act 1900 (NSW) (the Act) (count 1); 2. use a child under 14 years of age to produce child abuse material contrary to s 91G(1)(a) of the Act (count 2); 3. use a child under 14 years of age to produce child abuse material contrary to s 91G(1)(a) of the Act (count 3); and 4. possess child abuse material contrary to s 91H(2) of the Act (count 4).
The applicant adhered to those pleas when he appeared before the District Court, and asked that the sentencing judge take into account, in determining the sentence for count 1, an additional charge of possessing child abuse material which was set out in a Form 1.
The applicable maximum penalties for the offences are as follows: 1. counts 1 and 4 - 10 years' imprisonment; and 2. counts 2 and 3 - 14 years' imprisonment.
The sentencing judge gave the following indicative sentences: 1. count 1 (taking into account the Form 1 offence) - 2 years' imprisonment; 2. count 2 - 3 years' imprisonment with a non-parole period of 2 years; 3. count 3 - 4 years' imprisonment with a non-parole period of 2 years and 8 months; and 4. count 4 - 3 years' imprisonment.
At the time of committing the offences, the applicant was entered in the child protection register. He had previously been convicted of an offence of possessing child pornography and sentenced to a term of imprisonment which was suspended upon entering a bond pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for a period of 6 months. The sentencing judge revoked that bond and gave an indicative sentence of 6 months' imprisonment.
His Honour imposed an aggregate sentence of 8 years' imprisonment with a non-parole period of 5 years' imprisonment. [1]
The applicant now seeks leave to appeal against the aggregate sentence imposed.

Background

On 15 July 2013 the applicant was convicted of an offence of possessing child pornography and was sentenced as previously noted. [2] As a consequence, he became a registered person pursuant to the Child Protection (Offenders Registration) Act 2000 (NSW).
Police attended the applicant's premises on 14 May 2016 to conduct an annual inspection. The applicant consented to the police entering the premises and identified a room in which a laptop computer and a digital external hard drive were located. Having directed the police to that room, the applicant said: Should I call my wife to come and get the kids?
When the police asked "why", the applicant replied: Because I'll be going to the police station soon.
Upon examining the digital external hard drive, police located child abuse material, following which the applicant was arrested. [3] He was later charged with the four offences to which I previously referred.

Count 1

The external hard drive contained picture and video files of a sex doll emulating a prepubescent female wearing children's clothing. Digitally imposed on the face of the doll in the picture files were the faces of children under 12 years old, with the doll placed in sexual poses. [4] All of the pictures were still shots taken from the video. [5]
The Form 1 offence which was attached to count 1 arose from the applicant's possession of other picture and video files of the same sex doll. The applicant was depicted in the files having penile/vaginal intercourse, and oral intercourse, with the sex doll.

Counts 2 and 3

Located on the hard drive was a folder entitled "New folder/XXXX". [6] It contained a number of sub-folders with titles such as "Boobs and panties", "XXXXX EMS legs wide open, Fakes and other girls". The two children identified in pictures and videos contained in the folder were EB (who was between 10 and 13 years of age) and CG, who was between 4 and 7 years of age. [7] EB and CG were the applicant's nieces.
Whilst EB and CG were not used in the making of the pictures and videos in a direct way, photos of their faces had been superimposed onto pornographic pictures and videos. Specifically, in terms of count 2, there were images and videos files of EB which fell within categories 1 to 6 of the Child Exploitation Tracking (CET) System, namely: [8] 1. 283 images and 1 video (all of the images having been taken from the video) falling within category 1 (which encompasses images or depictions of children with no sexual activity e.g. nudity/surreptitious images showing underwear, nakedness, sexually suggestive posing and the like with explicit emphasis on the genital area); 2. 1 image within category 2 (which encompasses non-penetrative sexual activity between children or solo masturbation by a child); 3. 3 images within category 3 (which encompasses non-penetrative sexual activity between children and adults); 4. no images or videos within category 4 (which encompasses penetrative sexual activity involving children or both children and adults); 5. no images or videos in category 5 (which encompasses sadism or bestiality; sexual images involving pain, humiliation or animals); 6. 7 images within category 6 (which encompasses anime, cartoons, comics and drawings depicting children engaged in sexual poses or activity); 7. 273 images within category 7 (which encompasses non-illegal child material believed to form part of a series containing CEM); 8. no images or videos in category 8 (which encompasses adult pornography); and 9. 972 images and 16 videos in category 9 (which encompasses "ignorable" material).
In terms of count 3 there were images and video files of CG categorised as follows: [9] 1. 178 images and 65 videos (all of the images having been taken from the video) within category 1; 2. 3 images and no videos within category 2; 3. 74 images and 3 videos within category 3; 4. 5 images and no videos within category 4; 5. no images or videos within category 5; 6. 9 images and no videos within category 6; 7. 136 images and no videos in category 7; 8. no images or videos within category 8; and 9. 420 images and 284 videos within category 9.

Count 4

In respect of count 4, the external hard drive contained 668,703 files, 659,749 of which were picture files and 8,954 of which were video files. [10] An analysis carried out by sampling estimated that there were between 232,018 and 292,284 picture files of interest, and between 3180 and 4658 video files of interest. In terms of the picture files: [11] 1. 89% fell within category 1; 2. 4% fell within category 2; 3. 2% fell within category 3; and 4. 5% fell within category 4.
In terms of the video files: [12] 1. 51% fell within category 1; 2. 8% fell within category 2; 3. 5% fell within category 3; 4. 31% fell within category 4; and 5. 5% fell within category 5.

THE GROUNDS OF APPEAL

The applicant relied on a number of grounds of appeal but in the circumstances it is convenient to go directly to ground 4.

Ground 4 - His Honour erred in applying a non-existent standard non-parole period to each of the offences contrary to s 91G(1)(a) of the Act

THE REASONS OF THE SENTENCING JUDGE

A summary of the offences and the applicable penalties which was provided to the sentencing judge specified that the offending in each of counts 2 and 3 carried a maximum penalty of 14 years' imprisonment, with a standard non-parole period of 6 years. [13] This was noted by his Honour, who said that the standard non-parole period was "a matter to be taken into account as part of the determination of sentence". [14] His Honour went on to say that the standard non-parole period applied to an offence which was found to fall within the middle of the range of objective seriousness, although this was "but one factor to be taken into account in the sentencing exercise together with the objective and subjective matters which are considered in synthesis ….". [15] His Honour ultimately concluded that in light of the applicant's subjective case and the pleas of guilty which had been entered, the standard non-parole period should not be applied, but that it remained a guide. [16]

CONSIDERATION

Before this Court, the Crown conceded that the sentencing judge had been led into error by the prosecutor who appeared in the Court below. The error arises in the following way.
On 29 June 2015, the Crimes Legislation Amendment (Child Sex Offences) Act 2015 (NSW) came into force. It amended the table of offences contained in the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act) to which a standard non-parole period applies by including offences contrary to s 91G(1)(a) of the Act. [17] Those amendments did not apply to offences committed before 29 June 2015. [18] Although the offending in each of counts 2 and 3 was contrary to s91G(1)(a) of the Act, it was committed between 2010 and 2013, prior to the amendments coming into force. Accordingly, and contrary to what was stated in the summary provided by the prosecutor to the sentencing Judge, counts 2 and 3 did not attract the application of a standard non-parole period. His Honour's statement that they did so was an error, and amounted to his Honour having regard to an irrelevant consideration. [19]
It follows that ground 4 is made out and accordingly it is necessary for this Court to re-sentence the applicant in the fresh exercise of the sentencing discretion. Although the applicant relied on a number of other grounds of appeal, it is not necessary to specifically consider them in light of my conclusion in respect of ground 4. However, I have had regard to the submissions made on behalf of both parties in respect of those grounds, to the extent that such submissions remain relevant in re-sentencing the applicant.

OTHER EVIDENCE IN THE CROWN CASE ON SENTENCE

Both EB and CG provided victim impact statements in which each of them spoke of the ongoing difficulties they experience as a consequence of the applicant's offending. [20] Without going into detail, it is apparent that both young persons continue to suffer significantly as a consequence of the applicant's offending.
The applicant's criminal history consists of a conviction for common assault in 2000, as well as the previous conviction for possessing child pornography in 2013 to which I have referred.

THE APPLICANT'S SUBJECTIVE CASE

In a letter tendered to the sentencing judge the applicant expressed his remorse for the offending. [21] In doing so, he made reference to what he described as his "troubled youth" which he said was characterised by "constant bullying, trauma and endless depression". He extended his apologies to his family, to the victims of his offending, and to the wider community. He also made reference to the fact that he has attempted to use his time in custody usefully by engaging in employment, and by undertaking various rehabilitative courses. He said that upon his release from custody he would seek psychological counselling.
Dr Jonathan Adams, Psychiatrist, assessed the applicant on 1 July 2019 and provided a report dated 2 July 2019. [22] The applicant told Dr Adams that he had been "depressed most of his life", that he had been "bullied as a child", and that he had experienced periods of low mood in the context of work stress and relationship difficulties. [23] He said that he began using cannabis when he was 8 or 9 years old and had done so consistently since, describing himself to Dr Adams as a "functioning addict". [24] This history led Dr Adams to express the opinion that the applicant had "described the classical features of dependence". [25]
The applicant also reported to Dr Adams that he did not enjoy school, a circumstance which he linked to his long-term history of being bullied, although there was no history of any significant conduct problems. Upon leaving school, the applicant undertook casual employment and later started working in a joinery shop as a carpenter. He completed his apprenticeship in carpentry and remained working with the same employer for 17 years, following which he started his own carpentry business. He had not been unemployed for any significant period prior to his incarceration. [26]
In terms of the applicant's psychosexual history, Dr Adams reported: [27] [The applicant] advised that he began experiencing sexual fantasies regarding "young girls" when he "stumbled across it online". He denied experiencing sexual fantasies regarding pre-pubescent or peri-pubescent children prior to this. I asked him what attracted him to prepubescent and peri-pubescent children, to which he replied, "I'm really not sure". He said he continued to view, and masturbate whilst watching adult pornography, as well as pornography containing pre-pubescent and peri-pubescent female children. He did not report experiencing any sexual fantasies or urges focusing upon male children. He reported his history of splicing a picture of his female nieces (age 7 or 8 years and 12 or 13 years) onto images of naked children. He said he did this because his nieces were "pretty", and the images he was viewing did not have pretty faces. I asked if he experienced sexual fantasies and urges focusing upon his nieces, to which he replied, "no not really, because they're part of the family, I couldn't do it". He denied ever having any sexual fantasies or urges regarding his own children. … I asked [the applicant] how he felt about his underlying paedophilic fantasies, to which he replied, "I want to get rid of it… I feel sorry for the girls". He accepted the impact this type of behaviour had on "everyone… For every picture there is a child somewhere getting hurt". He said he was willing to do "whatever it takes to get over it", in terms of therapy addressing his sexual offending (emphasis in original).
The applicant also told Dr Adams that he had been reviewed by mental health clinicians in custody, and that although he had been prescribed Mirtazapine (a sedating anti-depressant) he had not engaged in any psychological therapy. He described his mood as "sad" and said that he had joined Narcotics Anonymous and had completed various rehabilitative courses. [28]
In terms of the applicant's future plans, Dr Adams reported: [29] [The applicant's] plans for the future were positive. He said he hoped to again reside with his family on their rural property following his release. He said he was willing to continue with all treatment recommended. I asked him how he would avoid any reoffending, to which he replied, "avoid the computer". He noted the benefits of ongoing psychological therapy and addressing areas such as loneliness and his capacity to express his feelings.
Dr Adams did not detect any evidence of psychosis or cognitive dysfunction. [30] He concluded that the applicant's clinical presentation was consistent with diagnoses of major depression, a severe cannabis use disorder and a paedophilic disorder. [31] He said: [32] [61] In regard to the offending behaviour, the primary underlying motivation appears to have been [the applicant's] paedophilic disorder. In my view this would have been compounded by his low mood and likelihood of major depression, severe cannabis use disorder, and his long-term inability to discuss and address his underlying emotional state with those close to him.
Dr Adams expressed the view that the applicant would benefit from long-term psychological therapy which he envisaged would include regular psychiatric review as well as an anti-depressant medication regime. [33] He concluded: [34] [65] If [the applicant] is to maintain stability upon his release from custody, he will need to engage positively in psychological treatment, drug rehabilitation, psychiatric follow-up in compliance with medication and social management strategies. [66] If [the applicant] maintains positive engagement with the above treatment plan, it is reasonable to suggest that this will mitigate the likelihood of future problematic behaviour and offending. [67] Given the constellation of [the applicant's] psychiatric diagnoses, in my view a period in custody will weigh more heavily upon him, as compared to an inmate with no mental health history.
In a supplementary report dated 12 August 2019, Dr Adams confirmed these opinions.
Although there is reference to the fact that the applicant underwent psychological treatment following his conviction in 2013, [35] there is no evidence as to the nature and extent of that treatment, or the applicant's response to it. Between June 2016 and March 2017 (i.e. following his arrest for these offences but prior to being sentenced) the applicant underwent counselling by Heide McConkey, a sex addiction therapist. Ms McConkey provided a report in which she confirmed that the applicant had attended 17 sessions of counselling. [36] She stated: [37] [The applicant] responded well to therapy. He was motivated and open to treatment and repeatedly said "he wants to become a better person and understand the reasons of his unusual attraction to minors" (his nieces, as I understand). Throughout the entire course of counselling, [the applicant's] understanding was always clear on boundaries between his curiosity/fantasy/filming/his own sexual arousal, and physically (sexually) touching children. He expressed a genuine disgust when I asked him if he felt sexual desire for children. His response sounded like this, "These are our offspring, we have to protect them. I could never hurt them."
The applicant appears to have used his time in custody positively. As reported to Dr Adams, he has undertaken a number of courses, and has joined Narcotics Anonymous. He has also been employed as a sweeper and packer. Although the applicant served his early period in custody under protection (due to his fears for his safety arising from the nature of his charges) this Court was informed that he has since been moved to a correctional facility where those matters do not present an issue. Accordingly, there is no longer any suggestion that the applicant is subject to any extra-curial punishment.
The applicant and his wife have two children, a son aged 16 and a daughter aged 8. Their son has been diagnosed with depression which has led to difficulties at school resulting in three suspensions. He left school without completing Year 10 at which time he commenced smoking cannabis. [38] The applicant's daughter was diagnosed with level 2 autism in June 2009 for which she is currently on medication.
The applicant's wife provided a testimonial in which she described the applicant as a "wonderful father and husband" and a "hard-working man" who was "honest". [39] She also made reference to the financial difficulties to which her family has been subject since the applicant was taken into custody and which have placed the family in a position of severe hardship. The applicant's wife concluded by expressing her confidence and he would not offend again, and confirming her unequivocal support for him. [40]
The applicant's eldest daughter, who is now aged 26, also provided a testimonial in which she described the applicant as a "very hard-working man" who "has integrity and goodwill". She confirmed the applicant's expressions of remorse [41] and her ongoing support for him. [42] A statement from the applicant's son-in-law is in similarly supportive terms. [43]

Submissions of the applicant

Counsel for the applicant emphasised the necessity to separately assess the objective seriousness of each instance of offending, as opposed to approaching such assessment in a global or "broad brush" way. With that in mind, counsel for the applicant submitted that each of counts 1, 2 and 3 fell towards the lower end of the scale of objective seriousness. He submitted that although those counts involved the "use" of children in the sense that the images depicted their faces, the images had not originated from what was described as a "typical abuse scenario", i.e. one in which the material had not been produced as a consequence of a child being compelled by the applicant to actively participate in illegal activity. Counsel emphasised that the number of victims in counts 1, 2 and 3 was limited. Whilst acknowledging that the number of images referable to count 4 was obviously higher, counsel submitted that this count involved the possession, as opposed to the production, of images.
Counsel also submitted, in a more general sense, that: 1. there was no suggestion that any of the material the subject of any of the counts had been disseminated to any other person(s); 2. the offending was unsophisticated; 3. there was no deception (e.g. there was no encryption of the external hard drive) and the applicant did not take any steps to avoid detection; 4. the offences were not committed in the context of the applicant of being a part of a collaborative network of like-minded individuals; and 5. generally speaking, the majority of the material the subject of each count fell into categories which were towards the lower end of the scale of seriousness.
In terms of the applicant's subjective case, counsel submitted that the pleas of guilty entered in the Local Court warranted a discount of 25%. Counsel also pointed to the evidence of the applicant's previous conditions of protective custody and the extra-curial punishment which had been brought about by those conditions, although he specifically conceded that this was no longer an issue.
In terms of the applicant's psychological state, counsel submitted that: 1. the disorders diagnosed by Dr Adams reduced the applicant's moral culpability to some degree; 2. there had been considerable hardship occasioned to the applicant's family as a consequence of his incarceration; and 3. the applicant had accepted responsibility, and had expressed genuine remorse, for his offending.
Counsel generally accepted that the applicant's prospects of rehabilitation were largely dependent upon the applicant adhering to his stated aim of leading a blame free life, abstaining from using prohibited drugs, and undertaking ongoing medical treatment. In these circumstances, counsel accepted that the applicant's prospects of rehabilitation were best described as guarded.
Finally, counsel for the applicant submitted that a finding of special circumstances was warranted on the basis that the applicant would require a longer period of time on parole to reintegrate into the community, during which period his rehabilitation would be assisted by undertaking appropriate treatment.

Submissions of the Crown

The Crown did not take issue with the necessity to assess the objective seriousness of the offending by reference to each individual count. However, the Crown submitted that the entirety of the applicant's offending was serious, deliberate, and had been committed for the purposes of self-gratification. The Crown submitted, in particular, that the offending in counts 2 and 3 involved a serious breach of trust, arising from the fact that the victims were the applicant's two young nieces, and that it had been committed (at least in part) during a period in which the applicant was the subject of a bond. In respect of count 4, the Crown pointed to the large number of files which were found following an examination of the hard drive, and emphasised that almost half of the video files fell within categories 2 to 5 of the CET scale.
Generally speaking, the Crown took no issue with a guarded approach being taken to any assessment of the applicant's prospects of rehabilitation or his likelihood of reoffending. However, whilst accepting that the applicant had expressed his remorse, the Crown submitted that this Court would not be satisfied that such remorse was genuine. In this regard, the Crown pointed to the fact that the applicant did not give sworn evidence before the sentencing judge, and that his expressions of remorse were limited to those set out in his letter and statements made to members of his family and Dr Adams. It was submitted that such untested assertions were deserving of little weight.
The Crown also pointed to what were submitted to be objective indicators of the applicant's lack of candour and reliability. For example, the Crown drew attention to the history provided by the applicant to Dr Adams that he had dressed the sex doll the subject of count 1 in female clothing, but had never dressed the doll in children's clothing. [44] The Crown pointed out that such an assertion was at odds with the statement of agreed facts which was tendered on sentence, and which included the fact that the sex doll had worn different children's clothing. [45]

The applicable sentencing principles

Before addressing the objective seriousness of the offending, it is appropriate to make a number of observations in relation to the sentencing principles which apply to offending of this general nature. In doing so, I wish to make it clear that nothing that I have said in my analysis of the offending which appears below should be construed as derogating, in any way, from the fundamental proposition that offending of this general kind is, by its very nature, serious, callous and predatory, involving as it does the exploitation of young children. [46]
To begin with, although the number of images (or videos) which have been produced, or which are in an offender's possession, is obviously relevant, it is not determinative of the objective seriousness of offending of this kind. That determination requires that the material in question be the subject of some analysis. That analysis must, in turn, have regard to (inter alia) the categories into which the material falls, bearing in mind the fact that some categories are more serious, and the material within them more explicit, than others.
In analysing the material as part of the sentencing process, a Court may have to consider and evaluate factors which point in different directions. For example, a Court may be faced with one count of offending which involves the possession of multiple images which fall into a lower category of seriousness, and another count which involves possession of a substantially lesser number of images which fall into a more serious category. To some extent, the present is such a case. Such circumstances highlight the obligation on a sentencing Court to evaluate and assess the objective seriousness of each separate instance of offending. The sentencing Court may, but is not obliged to, make that assessment by placing the offending at a point along a hypothetical range. [47]
In making that assessment, a number of factors are relevant including the following: [48] 1. whether actual children were used in the creation of the material; 2. the nature and content of the material, including the age of the children and the gravity of the sexual activity portrayed; 3. the extent of any cruelty or physical harm occasioned to the children that may be discernible from the material; 4. the number of images or items of material; 5. in a case of possession, the offender's purpose and specifically whether such possession was for the personal use of the offender on the one hand, or for the purposes of sale or dissemination on the other; 6. in a case of dissemination or transmission, the number of persons to whom the material was disseminated or transmitted; 7. whether any payment or other material benefit (including the exchange of child pornographic material) was made, provided or received for the acquisition or dissemination/transmission; 8. the proximity of the offender's activities to those responsible for bringing the material into existence; 9. the degree of planning, organisation, sophistication and/or deception employed by the offender in acquiring, storing, disseminating or transmitting the material; 10. the age of any person with whom the offender was in communication in connection with the acquisition or dissemination of the material (relative to the age of the offender); 11. whether the offender acted alone or in a collaborative network of like-minded individuals; 12. any risk of the material being seen or acquired by vulnerable persons, particularly children; 13. any risk of the material having been seen or acquired by persons susceptible to act in the manner described or depicted.
Those considerations are not exhaustive. [49] The facts of an individual case may identify other considerations. The present is such a case, a breach of trust being a characteristic of the offending in counts 2 and 3.
Finally, the general sentencing principles applicable to sentencing for offending of this nature include the following: 1. general deterrence and denunciation are of paramount importance and less weight is to be given to an offender's good character; [50] 2. although steps taken towards counselling and treatment in aid of rehabilitation are important, undue focus should not be placed upon that circumstance at the expense of considerations of denunciation and general deterrence; [51] 3. there must be reasonable proportionality between the objective seriousness of the offences and the sentences actually imposed, there being a need to ensure that the offender's subjective circumstances are not allowed to overshadow the objective gravity of the offending; [52] 4. when assessing the objective seriousness of the offending, and although there is no statutory provision concerning the use of the CET scale, experience has demonstrated that reference to such a scale is a helpful way to assist a sentencing court to form a view concerning the nature and gravity of the material; [53] and 5. there is a paramount public interest in promoting the protection of children and in this regard, the possession of child pornography should not be regarded as a victimless crime given that children are sexually abused in order to supply the market. [54]

General observations as to the applicant's offending

Without detracting from the necessity to assess the seriousness of the offending by reference to each individual count, the following observations apply to the applicant's offending generally.
Firstly, there is nothing to suggest that any of the material was produced or possessed for any reason(s) other than for the applicant's own use. In particular, there is no suggestion that any of it was produced or possessed for the purposes of sale or dissemination, nor is there any suggestion that the applicant derived any financial benefit as a consequence of his possession or production of it. Consistent with that, there is no suggestion that in offending as he did, the applicant was acting in any collaborative network of like-minded individuals.
Secondly, although the material was categorised and arranged in an orderly way on the hard drive, the offending itself was generally unsophisticated. In particular, there is no suggestion that the applicant engaged in any act(s) of deception in acquiring or storing the material, or acted in some other way which made the offending difficult to detect. The applicant effectively directed the police to the hard drive when they attended his premises, and the agreed facts tend to indicate that upon that occurring, police had no difficulty in accessing the material. Further, and notwithstanding the apparent ease of access, there is no suggestion that any vulnerable person was at risk of seeing or acquiring the material.
Thirdly, with the exception of a small quantity of video material the subject of count 4, there is no evidence of any cruelty or physical harm being occasioned to any of the children whose images were found within the material which is the subject of any of the charges.
Those general matters having been addressed, and accepting that offending of this kind is serious by its very nature, I turn to each individual count.

Count 1

In terms of count 1, the applicant's use of children was limited to superimposing their faces onto the sex doll. Equally however, the children who were used in that way were under the age of 12, and the sex doll onto which their images were superimposed was positioned in sexual poses. Both of these matters aggravate the offending.

Count 2

Of the images the subject of count 2 [55] : 1. 283 fell into category 1, being depictions of children absent any sexual activity; 2. 273 fell within category 7, being non-illegal child material; and 3. 972 fell within category 9 which is "ignorable material"; 4. 11 images depicted some form sexual activity within categories 2, 3 and 6.
Whilst the offending in count 2 involved the use, by the offender, of only one child, it is significant that the child was EB who was his niece. The applicant's use of EB to produce the material amounted to a serious breach of trust. It is also significant that EB was between the age of 10 and 13. These factors necessarily aggravate the objective seriousness of the offending, as does the fact that the applicant was on a bond at the time.

Count 3

In terms of count 3, all of the images in category 1 were still images taken from a video. Of the entirety of the images which are the subject of this count: 1. 178 fell within category 1, being depictions of children with no sexual activity; 2. 136 fell within category 7, being non-illegal child material; and 3. 420 fell within category 9 being material which was ignorable.
At the same time: 1. 3 images depicted non-penetrative sexual activity within category 2; 2. 74 images depicted non-penetrative sexual activity between children and adults within category 3; 3. 5 images depicted penetrative sexual activity involving children, or both children and adults, within category 4; and 4. 9 images depicted anime cartoons, comics and drawings of children engaged in sexual poses or sexual activity within category 6.
It follows that when compared with count 2, the offending in count 3 involved a greater number of images falling within more serious categories. Moreover, whilst the offending in count 3 also involved the use of only 1 child, that child was CG, who was the applicant's niece, and who was between 4 and 7 years of age. It follows that, like the offending in count 2, count 3 also involved a serious breach of trust. It was also aggravated by the fact that the applicant was on a bond at the time.
For all of these reasons, I regard the offending in count 3 as being more serious than that in count 2.

Count 4

In terms of count 4, and whilst it is not determinative, the number of files is obviously significant. In terms of the picture files: 1. 89% fell within category 1 and depicted no sexual activity; 2. 6% fell within categories 2 or 3, and depicted non-penetrative sexual activity; and 3. 5% fell within category 4 and depicted penetrative sexual activity.
In terms of the video files, 51% fell into category 1 and depicted no sexual activity. However: 1. 13% fell into categories 2 and 3 and depicted non penetrative sexual activity; 2. 5% fell into category 5 and depicted sadism or bestiality involving pain, humiliation or animals; and 3. 31% fell into category 4 and depicted penetrative sexual activity involving children and adults.
Whilst there is no evidence as to the number of children used in the offending in count 4, the offending is necessarily rendered particularly serious, having regard firstly to the number of files, and secondly to the fact that a significant proportion of those files depicted actual sexual activity.

The applicant's criminal history

In addition to the matter previously noted [56] the applicant was convicted for assault in 8 November 2000 [57] . His criminal history disentitles him to leniency.

The applicant's remorse and contrition

The applicant's expressions of remorse are to be found firstly, in his letter and secondly, in his statements to members of his family and Dr Adams.
There is no requirement for an offender to give evidence on sentence before remorse can be taken into account. In the present case, even though the applicant did not give evidence, the precondition set out in s 21A(3)(i) of the Sentencing Act, namely the provision of evidence of acceptance of responsibility, has been satisfied. [58] However, the weight to be attached to that evidence is another issue entirely. [59] As the Crown pointed out, other statements made by the applicant contradict the agreed facts, something which obviously bears upon any assessment of the genuineness of his expressed remorse.
Consistent with what this Court has said on a number of previous occasions, I place little weight on the applicant's untested expressions of remorse, be they contained in his statement, [60] or in the statements he is recorded as having made to third parties. [61] However, I am prepared to accept that the applicant's early pleas of guilty are some evidence of genuine remorse.

The applicant's mental state

Dr Adams expressed the view that there was a causal connection between applicant's paedophilic disorder and his offending. That operates to reduce the applicant's moral culpability to some degree. However, it was not suggested by counsel for the applicant that the applicant was an inappropriate vehicle for general deterrence, nor was it suggested that any aspect of the applicant's mental state has rendered his custodial conditions more onerous than might otherwise have been the case. [62]

The applicant's pleas of guilty

There is no issue that the applicant pleaded guilty to all of the offences at the earliest opportunity before the Local Court and is therefore entitled to a discount of 25% to reflect the utilitarian value of those pleas.

The applicant's prospects of rehabilitation

There are some positive signs in terms of the applicant's prospects of rehabilitation. In particular, there is evidence that he has used his time in custody productively by working, engaging in and completing various courses, and addressing his substance abuse disorder. It is also clear that he has the unequivocal support of his family.
However, and despite these factors, it remains the case that the applicant's successful rehabilitation depends largely upon undertaking appropriate treatment, accepting the guidance of those providing such treatment, and adhering to his stated intention to refrain from this kind of offending. Given his past history, I can only approach those issues with considerable caution. In all the circumstances, I am guarded about the applicant's prospects of rehabilitation.

The likelihood of re-offending

I have reached the same conclusion, for the same reasons as those discussed above in considering the applicant's prospects of rehabilitation, in relation to the likelihood of his reoffending.

The effect on the applicant's family

I have already noted the reference in the statement provided by the applicant's wife as to the hardship, both financial and otherwise, in which she and her children find themselves as a consequence of the applicant's incarceration. I am not satisfied that such hardship is exceptional but have taken it into account as part of the applicant's overall subjective case. [63]

Special circumstances

I am prepared to make a finding of special circumstances on the basis that a longer period on parole, during which time the applicant will undergo treatment, will assist his rehabilitation and his reintegration to the community.

SENTENCE

In sentencing the applicant I am mindful of the fact that general deterrence and denunciation are of paramount importance, and that there remains a need to ensure that there is reasonably proportionality between the objective seriousness of the offences, and the sentence actually imposed.
I propose the following indicative sentences: 1. Count 1 (taking into account the Form 1 offence) - 1 year and 9 months' imprisonment; 2. Count 2 - 2 years and 9 months' imprisonment; 3. Count 3 - 3 years and 6 months' imprisonment; 4. Count 4 - 2 years and 6 months' imprisonment; 5. Breach of bond - 6 months' imprisonment.
I would impose an aggregate sentence of 6 years and 3 months' imprisonment, with a non-parole period of 4 years and 1 month imprisonment, both to date from 9 March 2017.

CONCLUSION

I propose the following orders: 1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the sentence imposed in the District Court of NSW. 4. In lieu thereof, sentence the applicant to imprisonment for 6 years and 3 months commencing on 9 March 2017 and expiring on 8 June 2023. 5. Specify a non-parole period of 4 years and 1 month imprisonment commencing on 9 March 2017 and expiring on 8 April 2021.

Endnotes

R v CR [2019] NSWDC 884.
At [8] above; AB63.
ROS [22].
ROS [24]; AB58.
AB57.
The folder contained the Christian name of one of the victims which has been anonymised.
ROS [24]-[25]. His Honour noted the age of EB as between 11 and 13 but the Crown informed the Court that the agreed position of the parties was that she was aged between 10 and 13.
ROS [27]; AB58-59.
ROS [29]-[31]; AB59.
AB59-60.
ROS [33]; 59-60.
ROS [34]; AB60.
AB48.
At ROS [9].
At ROS [10].
At ROS [11].
Division 1A, Part 4.
s 68, Part 27, Schedule 2.
Maxwell v R [2020] NSWCCA 94.
AB70; AB75.
AB87-88.
Commencing at AB89.
At [6]; AB 90.
At [18]; AB 92.
At [18]; AB 92.
At [28]-[29]; AB93.
At [14]; AB91 and at [35]; AB93-94.
At [38]-[43]; AB94.
At [44]; AB94.
At [44]-[46]; AB94-95.
At [56]; AB95.
At [61]; AB96.
At [63]; AB96.
At [65]-[67]; AB97.
AB117.
AB98-101.
AB99.
AB379.
AB378-381.
AB380-381.
AB392.
AB393.
AB394.
At AB92.
Agreed facts at [8]; AB57.
R v Booth [2009] NSWCCA 89 at [39]-[44].
Yeung v R [2018] NSWCCA 52 at [24] per McCallum J (as her Honour then was), Hoeben CJ at CL and Simpson JA agreeing, and the authorities cited therein.
R v Hutchinson [2018] NSWCCA 152 at [45] per R A Hulme J, Meagher JA and Button J agreeing. See also R v De Leeuw [2015] NSWCCA 183 at [72] citing R v Jongsma (2004) 150 A Crim R 386; [2004] VSCA 218; R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370; DPP (Cth) v D'Alessandro (2010) 26 VR 477; [2010] VSCA 60; DPP (Cth) v Guest [2014] VSCA 29.
At [46] of Hutchinson.
R v De Leeuw [2015] NSWCCA 183 at [70] per Johnson J (Ward JA and Garling JA) citing R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174 at [59]-[72]; [126].
De Leeuw at [70] citing Porte at [71]-[72].
De Leeuw at [70] citing Porte at [128].
Porte at [75].
De Leeuw at [72] citing R v Jones (1990) 108 A Crim R 50; [1999] WASCA 24; DPP (Cth) v D'Alessandro.
All of the images were taken from a video which is included in the material which is the subject of this count.
At [11] above.
AB63.
Butters v R [2010] NSWCCA 1 at [15]-[17].
Pfitzner v R [2010] NSWCCA 314 at [33]-[35].
R v Elfar [2003] NSWCCA 358 at [25]; Weber v R [2020] NSWCCA 103 at [63].
See R v Qutami (2001) 127 A Crim R 369; [2001] NSWCCA 353.
See generally Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [177].
See Carter v R [2018] NSWCCA 138 per McCallum J (as her Honour then was) at [68], Leeming JA and Fullerton J generally agreeing. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 November 2020

Crimes Legislation Amendment (Child Sex Offences) Act 2015(NSW)

At a glance

Court

Decision date

Before

Catchwords

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Catchwords

Judgment (32 paragraphs)

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Legislation Cited (4)

Cases Cited (21)

Cited By (4)