Ford v R

Ground 3 - alleged appearance of bias

The applicant relies on three grounds of appeal. Ground 3 alleged apprehension of bias and should be considered first. [1] It is convenient to describe the nature of the offending (to the extent necessary) in that context. The particulars of all charges and the sentences imposed are summarised in a helpful schedule provided by the Crown, a copy of which is appended to this judgment.
Ground 3 is: "the sentencing judge has expressed personal views in relation to the offending of the applicant which give rise to a reasonable apprehension of bias affecting the sentencing of the applicant".
For reasons that were not well explained, the applicant sought leave at the hearing of the appeal to amend this ground by replacing the word "apprehension" with the word "appearance". Indeed, the amendment suggests a misunderstanding of established principle. The question in a case of alleged prejudgment is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. [2]
X, Y and the applicant were all sentenced by the same judge within a period of about a week. The judge sentenced X on 5 April 2012. He had pleaded guilty to 9 counts of child sexual abuse. He also had offences taken into account on a number of Forms 1, but far fewer than the applicant; X had 9 further offences whereas the applicant had 44, including a number of very serious offences. The approach in each case appears to have been to include on the indictment a representative set of offences in respect of each victim, placing all other offences relating to that same victim on a Form 1 relating to a corresponding count on the indictment.
In accordance with the practice in this State, the sentencing judgments were read aloud. In sentencing X, the judge summarised the facts relating to him. In doing so, he included a considerable amount of detail, while also noting "the full facts are set out in the twenty-two page agreed statement of facts".
A week later the same judge sentenced Y. She had pleaded guilty to 8 counts of child sexual abuse. There was a degree of overlap between the facts relied upon against her and the facts against X. The judge again referred to the fact that there was a twenty-two page agreed statement of facts, which he summarised in considerable detail.
The applicant was sentenced the following day, on 13 April 2012. For a third time, the judge discharged his solemn duty to state his reasons aloud, again including a careful recitation of the facts. The judge said that the judgment in respect of the applicant should be read in conjunction with those relating to X and Y, specifically noting that the two earlier judgments had been prepared in advance whereas the judgment against the applicant was being given ex tempore (albeit using some of the previously prepared material).
On this third occasion of reciting in detail the facts of this shocking episode of child sexual abuse by a mother, a father and their mutual boyfriend, the judge said: There is further detail in the agreed statement of facts which I will not go to but obviously which is [on] the public record and available should anyone wish to, although one would really wonder why you would have a look at the material. The less said about it the better I would think.
Later in the same judgment his Honour said: After sentencing three of these people it is more and more difficult not to use inflammatory language when describing the conduct and perhaps given that this is the third such occasion on which I have had to refer to these matters I think the less I say about it the better. Anyone who reads the facts will have a clear and unequivocal understanding of the level of sexual depravity that has been exhibited by this man.
Omitting the last sentence, those are the remarks relied upon by the applicant to support the claim of apprehended bias founded on the contention that the judge allowed his "personal views" to intrude into his reasons for sentence. The applicant submits "the impression is left that the distaste expressed by the sentencing judge has influenced him in his assessment of the criminality of the applicant relative to the co-offenders and relative to the needs for deterrence."
An aspect of the applicant's complaint under this ground is the contention that, although the three statements of facts form part of the public record, they are not "readily available". The suggestion appears to be that, in order adequately to explain the sentences imposed, the judge was obliged to recite the agreed facts in full within the body of the judgment. The principle of open justice imposes no such requirement. The agreed facts recorded a degree of sexual depravity which it was neither necessary nor appropriate to visit upon the listening public. The factual detail of the chat logs is particularly insidious, describing acts and desires which any decent person would find extremely disturbing. In my view the degree of distillation and censorship of the facts exercised by his Honour was entirely appropriate. No further detail was required to explain the sentences imposed.
It may be accepted that the judge's remarks were apt to convey the view that the process of reading the agreed statement of facts in full would be distasteful and was to be discouraged. If that entailed an unguarded expression of personal distaste it could not, in the circumstances of this case, be taken to disclose prejudice or personal bias inconsistent with the impartial exercise of the sentencing discretion. A sentencing judge is required to give clear expression to his or her assessment of the nature of the offending. In cases of extreme depravity, the judge is entitled to hold and express the view that the offender's conduct is extremely depraved. If the facts underlying that conclusion are so awful that it is fitting to protect the public from their detail, that may be said too.
As identified in the Sentencing Procedure Act, s 3A, one of the purposes for which a court imposes a sentence on an offender is "to denounce the conduct of the offender". [3] A further purpose is "to recognise the harm done to the victim of the crime and the community." [4] It is true that one part of the Court's role is to translate a community interest in retribution into an appropriate sentence imposed according to law. However, as the applicant's own submissions recognise, the function of the Court in sentencing an offender is not merely to impose the sentence, but to provide a public expression of the reasons for the sentence. There is some irony in the applicant's complaint that the judge spared the public a full account of the offending, but instead, and in order to explain that course, denounced it in emotive language.
The role played by denunciation of criminal conduct as part of the sentencing process was carefully examined by the Tasmanian Court of Criminal Appeal in Inkson v The Queen. [5] No doubt it would be wrong for a trial judge to express views in sentencing which could inflame prejudice or encourage vindictive behaviour on the part of the victim or other members of the community towards the offender. None of that occurred in the present case. Nevertheless, as explained by Crawford J in Inkson, "the sentencing judge was required to identify, assess and weigh the outrage and revulsion that an informed and responsible public would have in response to the applicant's crime". [6] It is a legitimate, if not a necessary, part of the sentencing process to identify and record those matters in the judgment on sentence. The Court of Criminal Appeal in Inkson provided an example of how such a response might be recorded, Underwood J stating: [7] "The criminal conduct constituting the commission of the crime was of the very worst kind.… Leaving [the victim] propped up against the wall, unconscious and bleeding to return to the party, demonstrated a depraved, callous disregard for the welfare of a human being seldom encountered in a civilised society. Ordinary right thinking members of the community would be outraged and revulsed by the applicant's criminal conduct and demand that it be denounced."
That is the case here. However, there was another misconception underlying this ground. The applicant's submissions focused on the manner in which it was contended that the sentencing judge had "allowed his personal views or emotional feelings to impact on the objectivity of his sentencing." The submissions further asserted that an impression was created "that the distaste expressed by the sentencing judge has influenced him in his assessment of the criminality of the applicant relative to the co-offenders and relative to the needs for deterrence."
There are different forms of bias, but the only one relevant in this case is pre-judgment. Nothing was relied on prior to the delivery of judgment as demonstrating any such error. The proposed ground was really an allegation that the judge had been diverted from the proper exercise of his judicial function by his personal feelings. Those were either entirely impermissible influences or, perhaps, indulged to an excessive extent. (The submissions suggested that the former approach was preferred, namely absolute impermissibility.)
There is no doubt that a sentence will be set aside if the sentencing judge has relied upon extraneous considerations. In Inkson, the sentence was set aside because the sentencing judge had taken into account community outrage that the offender had not been charged with murder, although his victim had died. However, no such error occurred in the present case.
Although it is correct to submit that a sentencing judge must maintain a degree of detachment in order to judge the moral culpability of an offender whose liberty is at stake, that does not mean that the judge is to be drained of any legitimate emotional response. The discussion of the process of sentencing set out above explains why such impersonal and absolute detachment is not required.
What follows will demonstrate why there was no rational foundation for the submission that the sentencing judge in this case had allowed his feelings to overwhelm impartial judgment.
The applicant pleaded guilty to 9 counts of sexual offending. Counts 1 to 4 related to X and Y's son, A. Count 1 was an offence of aggravated sexual assault without consent contrary to s 61J(1) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is 20 years with a standard non-parole period of 10 years. The charge was based on an image seized from the couple in Hampshire depicting the applicant sitting on a chair with an erection while X (A's father) and A (aged 12) each performed oral sex on him at the same time. In sentencing the applicant for count 1, the judge took into account 11 further offences on a Form 1. The judge imposed a sentence of imprisonment for 6 years with a non-parole period of 4 years. Having regard to the number and nature of the offences on the Form 1 (described below), that was a lenient sentence.
Count 2 and the Form 1 offences for Count 1 were based on three continuous videos made by X, Y and the applicant. The videos were located on both the applicant's computer and the mother's. The images were also live streamed to the man in Hampshire. The videos run for about twenty minutes each and depict a series of sexual acts between X, Y, the applicant and the boy, A.
The statement of facts includes a description of their contents, scene by sordid scene. It is not necessary to recite the full detail. The description reveals that, by the age of 12, A had become so sexualised by his parents and the applicant that the various sex acts they performed on each other and watched each other perform had become almost banal. The videos show A being penetrated anally with a variety of sex aids, referred to by the offenders as "butt plugs". At one point he is encouraged to penetrate his own anus with a vibrator. The applicant chastises him for "fucking around" (as if it were a skill the boy should have mastered by now) and threatens to go back to the butt plug. In the meantime the adults engage in all imaginable kinds of sexual activity with each other which the boy is prevailed upon to watch, join or film. At one point the applicant forces deeper anal penetration with a sex aid over the boy's complaint, telling him to "get used to it". The applicant variously abuses and threatens the boy ("do you want the butt plug back in?", "you know how we play with whips and restraints. If you don't keep it in there I will seriously hurt you").
Count 2 on the indictment was an offence of aggravated sexual assault in company contrary to s 61JA(1) of the Crimes Act (maximum penalty of life imprisonment; standard non-parole period of 15 years). The charge was based on one of the acts of anal penetration of the boy with the butt plug. The circumstance of aggravation was that the offence was committed by the applicant in company with the boy's mother and father. The sentence imposed was imprisonment for 10 years and 6 months with a non-parole period of 4 years and 6 months.
Count 3 was based on a separate video seized from the applicant. It depicts the boy naked, shackled and gagged with a rubber ball with leather straps running past his anus and around his neck. His father pushes him, forcing him to move around in the restraints. The applicant calls him a "gimp"; the applicant and the boy's father are heard laughing. The charge was aggravated indecent assault contrary to s 61M(2), carrying a maximum penalty of 10 years and a standard non-parole period of 8 years. Four further offences were taken into account on a Form 1 including an act of indecency entailing filming the boy's father place lizards on the boy's penis. The judge imposed a sentence of 3 years with a non-parole period of 2 years.
Count 4 was an aggravated offence of inciting an act of indecency contrary to s 61O(2A) of the Crimes Act, carrying a maximum penalty of 10 years (with no standard non-parole period). The charge was based on another video in which the applicant lay naked in a bath while the father filmed him. The video films them prevailing upon the boy to strip naked, straddle the bath and urinate on the applicant while the applicant masturbates. The judge imposed a sentence of 3 years with a non-parole period of 2 years for that offence.
In my view the sentences imposed in respect of the offences against the boy were lenient. The proposition that they have the appearance of bias on the strength of the judge's personal "distaste" for the nature of the offending is risible.
Count 5 was an offence of grooming a child under the age of 16 for unlawful sexual activity contrary to s 66EB(3) of the Crimes Act. That offence carried a maximum penalty of imprisonment for 10 years. The offence was disclosed by the chat logs obtained by police. The child (to whom I will refer to as C) was the mother's 15 year old nephew, who was staying at the household during the school holidays. During that time, X often walked around naked with the applicant and smoked cannabis. X showed C adult pornography on the computer. One night the applicant visited and brought amphetamine with him, which was offered to C (C declined). C witnessed A, X and the applicant naked talking to someone over the webcam. He saw X give half a Viagra tablet to A, following which A showed his erection to those following the webcam. The sentence imposed was a term of imprisonment for 2 years and 3 months with a non-parole period of 1 year and 3 months. That was the only offence relating to the boy C.
Counts 6 and 7 related to X and Y's daughter, B, who was aged 11 at the time of the offences. Each was a charge of aggravated sexual assault on a person under 16 contrary to s 61J of the Crimes Act, which carries a maximum penalty of imprisonment for 20 years and a standard non-parole period of 10 years. Three further offences were taken into account on a Form 1 in respect of count 6. The offences were based on video footage of the girl B sitting next to her cousin C on the couch. The applicant and X perform cunnilingus on the girl (count 6). She then performs fellatio on each of them (count 7 in the case of the applicant). Other material obtained in the chat logs reveals that those events were live-streamed to the couple in Hampshire. For count 6, the judge imposed a term of imprisonment for 6 years with a non-parole period of 4 years. For count 7, his Honour imposed a term of imprisonment for 7 years and 6 months with a non-parole period of 6 years.
Counts 8 and 9 relate to the two children of the couple in Hampshire and are based on chat room conversations between the applicant and the father of those children. On each count, 10 further offences were taken into account on separate Forms 1. Count 8 was an offence of inciting an offence of sexual intercourse with a child under the age of 10, contrary to s 80G and 66A(2) of the Crimes Act, which carries a maximum penalty of imprisonment for life. Four of the 10 further offences taken into account on the relevant Form 1 were also charges of incitement to the man in Hampshire to have intercourse with that child, a girl aged four years.
The count on the indictment was based on an exchange in which the applicant encouraged the man in Hampshire to use a particular kind of vibrator ("the same thing I first got for [B]") for use on the four year old girl. The man in Hampshire invites the applicant to watch the event over the webcam. Police recovered video footage of the girl being penetrated with a sex aid answering the description provided by the applicant to the man in Hampshire in the earlier conversation.
The sentence imposed for that offence was a term of imprisonment for 6 years with a non-parole period of 4 years.
Count 9 relates to the other child of the couple in Hampshire, a boy aged 11 at the time of the offences. The offence was based on the applicant's incitement of the boy to fellate his father (the man in Hampshire) while the applicant watched via webcam. As with the three videos discussed above in respect of count 2, a striking feature of the chat room conversations is the extent to which their discussion of acts of the grossest depravity became banal. The two men exchange suggested techniques for grooming young children for sexual abuse as if they were tradesmen discussing the finer techniques of their trade. It is little wonder the judge chose not to descend to the detail of those offences. Taking into account the matters on the Form 1, the judge imposed a sentence for count 9 of imprisonment for 4 years and 6 months with a non-parole period of 3 years.
There is no merit in ground 3. Even the limited summary of the facts set out above confirms that his Honour expressed himself in relatively moderate language in the circumstances. The judgment aptly distilled the nature of the offending and the measure of denunciation it should attract.

Ground 1 - protection of the community

Ground 1 is: The sentencing judge erred in applying Veen No 2 in sentencing the applicant.
The applicant has a prior conviction for assault with an act of indecency and three prior convictions for acts of indecency with aggravation. The offences related to three girls to whom he was then in the role of stepfather. The aggravated acts of indecency were representative charges; they related to specific occasions on which the applicant had masturbated to the point of ejaculation in the two younger girls' bedroom. They said he had often done that. The applicant himself told police he had done it "probably more than 50 times".
The indecent assault related to the older daughter who was aged 17 at the time of the offence. The applicant's account was that she was masturbating in the lounge room, which he took as an invitation. He said he watched her for a while (evidently unbeknownst to the girl) and then placed his penis against her mouth. When his penis touched her mouth, the girl jumped up and ran away. She did not wish to make a statement to police; the charge was based on the applicant's admission to her mother.
In order to explain the judge's treatment of the prior convictions, it is necessary to refer to his judgment sentencing Y. In that judgment, the judge listed a series of aggravating factors which he had taken into account in accordance with s 21A(2) of the Sentencing Procedure Act. However, Y had no prior criminal convictions; in her case, that was a mitigating factor in determining the appropriate sentencing in accordance with s 21A(3) of the Act.
In dealing with aggravating and mitigating factors in the case of the applicant, the judge said: I confirm what I said in my remarks on sentence for [Y] in terms of the s 21A aggravating factors. In addition to those I accept that his prior criminal history because of the type of offending is in fact an aggravating factor under s 21A but it is aggravating in a Veen sense, that is, it is relevant to my assessment of the need for personal deterrence and punishment and also it is relevant to my consideration as to his prospects of rehabilitation.
The applicant takes the reference to "Veen" to be a reference to Veen v The Queen (No 2), [8] which is probably the case.
It is also relevant to consider what the judge said later in his judgment as to the applicant's prospects of rehabilitation: In relation to the question of whether he has good prospects of rehabilitation and/or is likely to reoffend I note that on that issue or those topics I reached a positive conclusion for [Y] but that I was unable to reach such a positive conclusion for [X]. Having regard to all of the material that has been placed before me, which is relevant to this topic, I would indeed, as I said in relation to [X], need to be prescient in order to determine what his prospects of rehabilitation are and/or what the likelihood of reoffending is. It may be that the parole board would have to address that issue after he has served his sentence but at that point in time they ought to be in a far better position than I am at present. My conclusion is that I cannot positively conclude that he has good prospects of rehabilitation nor can I positively conclude that he is unlikely to reoffend. I do not conclude the opposite of that position. I simply indicate I am unable to reach a positive conclusion so far as he is concerned on those points.
The applicant submitted that the decision of the High Court in Veen (No 2) "involves considering the protection of the community in sentencing in this context rather than specific deterrence". He submitted that, in the present case, "no case was made out that a sentence was required with a view to 'the protection of society'". It was submitted that there was no psychiatric evidence to indicate that the applicant would continue to reoffend if released or be a danger to society "once punished".
The submissions reveal misconception both as to the law and as to the import of the judge's remarks.
The misconception as to the principles stated in Veen (No 2) is that, according to the applicant's argument, the decision is confined in its application to the issue of the need to protect the community against the risk of recidivism. The premise of the argument appears to be that, except where a need to protect society against a risk of recidivism is established, Veen (No 2) holds that the sentencing court cannot have regard to prior convictions. That is wrong. The judgment of the majority (Mason CJ, Brennan, Dawson and Toohey JJ) deals comprehensively with the principles relating to the proper consideration of prior criminal convictions. The Crown relied in particular on the following passage from the majority judgment (at 477, [14]). There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v. Ottewell (1970) AC 642, at p 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties.
That passage confirms that it is permissible, in accordance with Veen (No 2), to have regard to an offender's prior criminal convictions in determining whether there is a need to impose "condign punishment to deter the offender" (specific deterrence). There is no justification for reading down the reasoning in the way contended for by the applicant, but if there were there would be a lively issue as to whether such an approach could stand with s 21A(2)(d) of the Sentencing Procedure Act.
The misconception as to the judge's remarks is that, contrary to the premise of the applicant's submissions in support of this ground, it is clear that the judge did not ultimately conclude that the applicant's total sentence should be longer so as to protect society from a risk of recidivism. His Honour specifically said that he was unable to reach a conclusion one way or the other as to the applicant's prospects of rehabilitation.
Even if that is wrong, the applicant's further submission that no case was made out for a need for protection of society must be rejected. A report before the Court from a forensic psychiatrist, Dr Jonathan Adams, provided ample support for such a finding. Dr Adams said: Given the severity of his paraphilic sexual fantasies and urges in my opinion a pharmacological treatment strategy might well be warranted. Mr Ford will require long term close monitoring of his mood and paraphilic sexual fantasies, urges and behaviours. It is noteworthy that Mr Ford acknowledged the pathological basis of his paraphilic sexual fantasies and expressed his wish to engage in appropriate treatment.
The fact that the judge felt unable to reach a conclusion as to the applicant's prospects of rehabilitation reflected the unpredictability of important factors relevant to that assessment, such as the applicant's ongoing willingness to undertake treatment, the potential unavailability of appropriate treatment and the inherent uncertainty of recovery in this field. The point is that, in my view, it would have been open to the judge to make a finding that a longer sentence was required for the protection of society, so long as the total sentence remained proportionate to the offending.
In my view, ground 1 is without merit.

At a glance

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Judgment (8 paragraphs)

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Legislation Cited (2)

Cases Cited (8)

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