Cross v R

Judgment 1ALLSOP P: I agree with Davies J. 2HIDDEN J: I agree with Davies J. 3DAVIES J: On 22 September 2009 the Applicant pleaded guilty at the Downing Centre Local Court to the following offence: Count 1: At Brighton in about 2004 he did commit an aggravated indecent assault against a child under the age of 10 years, the aggravation being that he was in a position of authority over the child. The maximum penalty for this offence was 10 years imprisonment and it carried a standard non-parole period of 5 years. He asked that an offence of using a child under the age of 14 for the purpose of making a pornographic video be taken into account on a Form 1. The maximum penalty for that offence was 7 years imprisonment. 4On 10 June 2010 the Applicant pleaded guilty to two further charges as follows: Count 2: In February 2010 use a carriage service to transmit child pornography. The maximum penalty for this offence is 10 years imprisonment. The Applicant asked for a further offence of using a carriage service to transmit child pornography to be taken into account on a Form 16BA. Count 3: In March 2010 possess child pornography. The maximum penalty for this offence was 10 years imprisonment. 5The Applicant was sentenced by Judge G D Woods QC in the District Court on 14 December 2010 as follows: Count 1, and taking into account the offence on the Form 1 - a fixed term of imprisonment for 3 years to commence 9 March 2010 and expire 8 March 2013. Count 2, and taking into account the offence on the Form 16BA - imprisonment for a fixed term of 3 years to commence on 9 March 2011 and expire on 8 March 2014. Count 3 - a non-parole period of 3 months to commence 9 March 2014 and expire 8 June 2014 with a balance of term of 2 years and 9 months to expire on 8 March 2017. 6Total overall sentence was a period of 7 years to commence on 9 March 2010 with a non-parole period of 4 years and 3 months to expire on 8 June 2014. 7The Applicant seeks leave to appeal on the following grounds: (1)His Honour erred in imposing a fixed term with regard to Count 1. (2)In relation to Count 2 the Sentencing Judge erred by misdirecting himself as to the correct maximum penalty for the offence and so fell into error in arriving at an appropriate sentence for the offence. (3)The overall sentence is manifestly excessive, given: (a)The length of the fixed term on Count 2; and (b)His Honour's decision to entirely accumulate the sentence imposed for Count 3.

Facts 8The following summary of the facts is largely taken from the Remarks on Sentence of Wood QC DCJ. 9On 29 January 2009 a member of the AFP executed a search warrant at 5 Nebo Place, Cartwright where the Applicant resided. An item discovered during the execution of the search warrant was a video on a DVD of approximately 17 minutes in duration. 10The background to the video is that the Applicant operated an organisation called 'Pirates School of Sport' at which he ran sporting clinics for children at a Sydney public school between 1999 and 2004. The children paid a fee to attend clinics for activities such as gymnastics, dancing and soccer on Friday afternoons and some Saturday mornings during school term. The clinics were operated in buildings located at Brighton-le-Sands Public School. 11The video displayed a child of approximately eight years of age who was one of the children that attended the group organised by the Applicant. It showed the boy naked washing himself in the premises in the sink. He was unaware that the recording was taking place. The Applicant is heard on the audio of the film to ask the boy if he wants help washing himself. 12The Applicant repeatedly suggests that he washes the boys back, arms and bottom. The Applicant then assists the boy to do that and also assists him in washing his penis. After the Applicant rinsed the boy, the Applicant dried him with a towel and, in particular, dried his penis some three or four times. Subsequently, the video cuts to the boy in a leotard, and he is performing various gymnastic activities during which the Applicant zooms and focuses the camera on the boy's crotch and bottom at all times. This event formed the basis for Count 1. 13In relation to Count 2 and the offence on the Form 16BA ("the Commonwealth offences") the Applicant was engaged on the internet with a username of 'Mouse14' by an undercover AFP agent who had assumed an online identity as 'The Hunter'. During an online conversation on 9 February 2010 the Applicant, as Mouse14, stated that he was attracted to boys between 6 and 15 years, that he looked around various places but was cautious, that he was single and lived with his father and indicated that he was interested in meeting the 13 year old son of The Hunter. 14The Applicant then disclosed his fantasies about what he might do to the son of The Hunter. The Sentencing Judge described the fantasy as being very blunt and indicating a sexual interest in direct contact with the young child. Having read what is contained in the report of the Federal Agent his Honour's characterisation is correct. 15In a subsequent online conversation on 12 February 2010 the Applicant said that he was thinking about travelling to Canberra to meet The Hunter and his son in person. He asked The Hunter for his son's MSN username so that he could chat with him, and he said that he had been chatting with a number of 13 year old boys on a certain site, all of whom indicated that they had intercourse with friends and men. 16During the course of that conversation the Applicant sent the undercover officer a video file 4 minutes and 39 seconds long. It depicted a male child approximately 10 years of age masturbating in front of what appears to be a webcam. It appears that it was the events of 12 February 2010 that formed the basis for Count 2 and the events of 9 February 2010 that constituted the offence on the Form 16BA. 17Subsequent to that conversation the Police identified the Applicant and his address. A further search warrant was executed at the Applicant's premises on 9 March 2010. The Applicant agreed that he was Mouse14 but he downplayed and mitigated his role, suggesting that it was just a conversation, just a fantasy story and he never meant to do anything about it. 18In the course of the search a number of other things were located including a laptop secreted between the mattress and base of the bed in the bedroom used by the Applicant. When investigations were made into the laptop a total of 2,153 images and 190 videos were deemed to be child pornography. 552 of the images were rated according to the Oliver scale. That is a scale which has been established as a result of a decision in the United Kingdom dealing with similar offences there. It sets out a level of 1 to 5 indicating the degree of seriousness of the kind of child pornography involved with level 1 being merely posing with no sexual activity and level 5 being the worst. On the laptop there were 79 images depicting penetrative sexual activity between children and children and adults (level 4) and 12 images depicting sadism or bestiality (level 5). 19Other things found in the search contained 1601 images and 190 videos of child pornography material. 195 images and 88 videos were rated at level 4 on the scale. 2 images and 4 videos were rated at level 5. These matters formed the basis of the charge in Count 3.

Subjective Factors 20The Sentencing Judge had a considerable amount of material before him not only from the Probation and Parole Service but also from a number of psychologists. His Honour also heard oral evidence from the Applicant, from one of his sisters, and from three of the psychologists. The psychologists had assessed the Applicant's risk of re-offending. 21What emerged was that the Applicant had experienced a difficult and abusive childhood. He had a distant relationship only with his father and his mother was abusive. She would berate and humiliate the Applicant in public, frequently shouting at him across the sports field calling him a 'poofter' when he made a mistake during a soccer game. She physically beat the Applicant and his sisters with her hands and an electric jug lead. 22The mother washed the Applicant in a bath until he was 12 years old despite his protests. Even after that age he was accorded no privacy when bathing. His mother made him wash his sisters' underwear when they were in their teens. One or both of the sisters was sexually abused by their mother's father to the knowledge of their mother who simply responded by saying that it had happened to her as well. 23When the Applicant was 11 years old he was groped in a toilet block after a soccer game. The perpetrator threatened the Applicant's life in the process of assaulting him. He was physically injured by the assault but told his parents he had been injured at soccer. 24When he was 12 years of age he was groped by boys who were 3 to 4 years older than he was. 25Although his sexual interests were for men he has struggled with his sexuality for many years until recent times. Part of the struggle involved him entering into a relationship with a woman in his early 20s. His mother reacted to this by threatening to commit suicide if the Applicant continued to see the woman. The relationship with the woman broke down subsequently. He subsequently attempted a heterosexual relationship at the age of 40 but it did not work out. 26He gave conflicting evidence to those who interviewed him about whether he was in a permanent relationship with another man. 27He claimed not to be sexually attracted to children but to young men who were well above the age of consent but considerably younger than he was. 28In terms of his risk of re-offending assessments by psychologists Sharon Klamer and Katherine Sahm for Corrective Services NSW assessed him at a moderate to high risk of re-offending based on a number of measures including the Static 99. Their conclusion was that it seems likely the Applicant possessed an ongoing deviant sexual interest in children. They thought that might be related to his victimisation as a child, in addition to his difficult childhood, and his limited ability to express himself. That assessment was conducted after he had been charged in relation to the Brighton offence but before those assessing him had become aware of the later offences. 29He was then reassessed by Katherine Sahm who concluded that the further charges and conviction for offences resulting from the online chat with an undercover police officer raised his risk considerations to high. She though his behaviour had escalated somewhat, agreeing with the psychologist Mr Webster that it might be an indication of a "cry for help". In any event, the new offence further supported an intensive treatment intervention. 30The comprehensive report from Gerard Webster, a forensic psychologist, said that in relation to the offences the Applicant had largely taken the stance of denial and minimisation in relation to sexually abusing the child recorded in the movie. This was primarily because he failed to recognise the behaviours that had been engaged in by him which enabled the movie to be brought about such as fantasising, grooming and manipulating the child into a situation where he could be exposed, touched and filmed. 31Mr Webster thought that, although the Applicant's sexual offending may have strong origins in his own trauma, his recidivism risk is assumed to be the same as those who sexually abuse simply for sexual gratification. In relation to static variables, Mr Webster thought his risk fell either in the moderate-low risk category for sexually abusing children in the future or the moderate-high risk category. 32The psychologists were in agreement that if the Applicant were to be incarcerated he should undertake the CUBIT program whilst in custody to address his sexual offending.

Ground 1 - Count 1 - error regarding the fixed term 33Count 1 related to an offence contrary to s 61M(2) Crimes Act 1900. At the time of the commission of the offence the offence carried a standard non-parole period of 5 years. Section 45(1) Crimes (Sentencing Procedure) Act 1999 precludes the imposition of a fixed term for an offence that attracts a standard non-parole period. The Crown accepted that the Sentencing Judge had erred this regard. 34The fixed term of imprisonment reflects the non-parole period component of a sentence: R v Dunn [2004] NSWCCA 346 at 161. As Ground 3 alleges that the overall sentence is manifestly excessive it will be necessary to reconsider the particular sentence for Count 1, including whether applying the principle in R v Dunn is appropriate.

Ground 2 - Count 2 - Maximum penalty 35His Honour said in his Remarks on Sentence that the Commonwealth Parliament had established a maximum penalty of 15 years in respect of Count 2. In fact, the correct maximum penalty at the relevant time was 10 years imprisonment (s 479.19(1)(a)(iii) Criminal Code Act 1995 (Cth)). The increase in the maximum penalty to 15 years came into effect on 15 April 2010. Both Count 2 and the offence on the Form 16BA were committed prior to April 2010. 36The Crown accepted that the error was a material error but submitted that the issue was whether it had been shown in the circumstances that some lesser sentence in law was warranted. 37The Crown said that it did not submit that no sentence less severe was warranted and pointed to the following matters for consideration on the appropriate penalty: (a) the content of the child pornography transmitted in the principal charge (masturbation by a ten year child in front of a web cam), (b) the quantity involved (only one item), (c)the fact that it was transmitted to only one person who was an adult, (d)no payment was received or requested for the transmission, and (e)what appears to have been the relatively limited sophistication used by the Applicant to transmit the material. 38A further consideration is, as the Applicant submitted, that Commonwealth offences carrying a maximum sentence of 10 years imprisonment or less are capable of summary disposition. If this offence had been dealt with in the Local Court the maximum penalty was two years imprisonment and/or a fine of 120 penalty units. The Sentencing Judge's belief about the maximum penalty meant that he did not give any consideration to the possibility that the offence might have been dealt with in the Local Court. 39All of these matters lead to the view that consideration of the appropriate sentence for Count 2 should be dealt with when considering whether the overall sentence is manifestly excessive under Ground 3.

Ground 3 - manifest excess 40The structure of the sentencing was that Count 2 was accumulated on Count 1 by one year, and Count 3 was accumulated on Count 2 by the entirety of the sentence for Count 2, being 3 years. There was a very large variation in the statutory ratio in relation to Count 3 but his Honour's reason for that was said to be the accumulation of Count 3 on Count 2. 41Because of the errors made by the Sentencing Judge it is necessary to reconsider each of the sentences individually as well as the overall sentence for the offences, particularly because the offences are all of a similar kind and appear to have derived at least partly from the Applicant's childhood and upbringing.

Count 1 42If one was simply to apply the principle in R v Dunn to the sentence imposed by the Sentencing Judge the Applicant would be sentenced to a non-parole period of three years and, ordinarily, a balance of term of one year. Since there was an early plea those sentences would represent a reduction of 25% with the result that the nominal starting point for the sentence would have been five years and four months. The maximum penalty for this offence was ten years. 43On any view of the offence it was at a low level of seriousness. Whilst Spigelman CJ pointed out in DBW v R [2007] NSWCCA 236 at [39] that the public and the courts have become much more aware of, and knowledgeable about, the effects of child sexual abuse in the last few years, the present matter can be distinguished to some extent. The Sentencing Judge accepted a statement from counsel for the Applicant, a matter that was conceded by the Crown, that the police had spoken to the boy involved, that there was no evidence of any harm or ongoing harm as a consequence of the offending and that the child could not recall ever having had a video taken of him nor could he remember being washed or anything about the incident. 44The Applicant is entitled to a discount of 25% for an early plea. Taking into account the low level of seriousness of the offence (whilst not ignoring the fact that the Applicant established the child care arrangements which enabled him to engage in the conduct concerned), the fact that there was only the one incident as a result of that childcare arrangement, the fact that the Applicant had at the time no prior convictions (there being no evidence in relation to s 21A(5A) Crimes (Sentencing Procedure) Act 1999 either before the Sentencing Judge or this Court) and the strong subjective case arising out of the Applicant's background, an appropriate starting point for the sentence is a non-parole period of two years. By reason of the 25% discount that will result in a sentence of an 18 month non-parole period, with an additional term of 6 months.

Count 2 45In Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243 at [94] RA Hulme J (with whom Macfarlan JA and Johnson J agreed) listed a number of matters that he said may be relevant to the assessment of the objective seriousness of offences involving the possession or dissemination/ transmission of child pornography. It is not necessary to set out those matters here. In relation to the Count 2 offence itself the only significant matters from those listed were the fact that the video depicted an actual child masturbating and that the child was aged approximately ten years. The fact that the material was sent only to an undercover police officer, that the Applicant acted alone (apart from having accessed the video from the internet) and that there was no evidence to suggest that he was in any way connected to the production of the material means that the offence should be regarded as having a reasonably low level of seriousness. The material that formed the basis of the Form 16BA offence was at an even lower level in that it simply involved an email or like communication involving the Applicant's fantasies. 46Bearing in mind again that his Honour gave a 25% discount for an early plea, the imposition of a fixed term of 3 years meant that the starting point for sentence was a 4 year fixed term. In my opinion, that was outside the range of appropriate sentences given the relative low level of seriousness of the offending. 47In my opinion, a more appropriate starting point would have been a fixed term of 20 months imprisonment with the result, following the discount, that the sentence ought to have been a fixed term of 15 months imprisonment.

Count 3 48In my opinion, the matters charged in Count 3 were arguably the most serious of the offences for which the Applicant was sentenced. When one has regard to the total number of images, and to the number of them rated at level 4 and level 5 on the Oliver scale, the sentence imposed in respect of Count 3 was wholly inadequate. Nevertheless, there is no Crown appeal against that sentence, and the matter of that sentence falls only to be determined by the application of the principle of totality by the appropriate accumulation of the sentences in respect of the other counts. 49In my opinion the Applicant should be sentenced overall to a non-parole period of 2 years and 9 months, with an additional term of 2 years and 9 months. I consider there are special circumstances by reason of the accumulation of the sentences and by reason of the matters discussed by the Sentencing Judge in relation to treatment programs both inside and outside prison. In my opinion the appropriate structuring of the sentences is as follows:

• Count 1 - a non-parole period of 18 months commencing 9 March 2010 and expiring 8 September 2011 with a balance of term of 6 months;
• Count 2 - a fixed term of 15 months commencing 9 June 2011 and expiring 8 September 2012;
• Count 3 - a non-parole period of 3 months commencing 9 September 2012 and expiring 8 December 2012 with a balance of term of 2 years and 9 months expiring 8 September 2015

50There is the further matter of whether an order should be made under s 50 Crimes (Sentencing Procedure) Act 1999 and whether it should be made in respect of both Counts 1 and 3. The aggregate term exceeds 3 years but the individual sentences are each less than that period. Count 2 is a Commonwealth offence where s 50 has no application. The Sentencing Judge made no such order. The parties did not address the matter in the submissions already filed nor at the hearing of the appeal. I propose that the parties have seven days to make any further submissions concerning this matter.

51I propose the following orders: (1) Leave to appeal granted. (2) Allow the appeal (3) Quash the sentences imposed by Judge Woods QC. (4) In lieu sentence the Appellant as follows: (a) In respect of Count 1 and taking into account the matter on the Form 1, a non-parole period of 18 months commencing 9 March 2010 and expiring 8 September 2011 with a balance of term of 6 months;

• (b) In respect of Count 2 and taking into account the matter on the Form 16BA, a fixed term of 15 months commencing 9 June 2011 and expiring 8 September 2012; (c) In respect of Count 3, a non-parole period of 3 months commencing 9 September 2012 and expiring 8 December 2012 with a balance of term of 2 years and 9 months expiring 8 September 2015. (5) Direct the parties to file any further submissions they wish to make concerning the requirement or otherwise of a further order pursuant to s 50 Crimes (Sentencing Procedure) Act.

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: 10 September 2012