Henry v R

Court of Criminal Appeal (NSW)|2009-03-13|Before: McColl JA, Grove J, Howie J, Coll JA

JUDGMENT OF: McColl JA at 1; Grove J at 2; Howie J at 36

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Sentence - Indecent assault and procuring children for pornographic purposes - Three female victims of various offences aged eight years - No error in approach or assessment by sentencing judge

Pearce v The Queen (1998) 194 CLR 610 CASES CITED : R v AGR (unreported) NSWCCA 24 July 1998 R v Rich [2000] NSWCCA 448 The Queen v Olbrich (1999) 199 CLR 270

COUNSEL: I Barker QC with P Kintominas - Applicant P Miller - Respondent/Crown

SOLICITORS: Fox and Staniland - Applicant Solicitor for Public Prosecutions - Respondent/Crown

IN THE COURT OF CRIMINAL APPEAL CCA 2006/5262

McCOLL JA GROVE J HOWIE J

20 March 2009 Christopher John HENRY v REGINA Judgment 1 McCOLL JA: I agree with Grove J. 2 GROVE J: This is an application to extend time for seeking leave to appeal against severity of sentence imposed by Hulme DCJ at Taree District Court on 10 November 2006. The applicant had pleaded guilty on the listed trial day to indicted offences but his Honour accepted that it had earlier been made clear that he was likely to so plead. He was convicted on two counts (counts 1 and 3) of indecent assault upon a child under the age of ten years contrary to s 61M (2) of the Crimes Act 1900 for which offence there is a maximum penalty of 10 years imprisonment and a standard non-parole period of 5 years; on two counts (counts 2 and 4) of procuring a child under fourteen years for pornographic purposes (each child was aged eight years) contrary to s 91G (1) (a) of that Act, which offence carries a maximum penalty of 14 years imprisonment and on one count (count 5) of inciting a child under the age of ten years (a child aged eight) to commit an act of indecency contrary to s 61O (2) of the Act for which a maximum penalty of 7 years imprisonment applies. His Honour was also asked to take into account on a Form 1 a further offence contrary to s 61O (2) and an offence of possessing child pornography. 3 His Honour sentenced the applicant as follows:

On count 1: to imprisonment consisting of a non-parole period of 3 years commencing on 28 October 2006 and expiring on 27 October 2009 with a balance term of 1 year;

On count 2: to imprisonment consisting of a non-parole period of 2 years commencing on 28 October 2006 and expiring on 27 October 2008 with a balance term of 8 months;

On count 3 (taking into account the offences on the Form 1): to imprisonment consisting of a non-parole period of 2 years 6 months commencing on 28 July 2007 and expiring on 27 January 2010 with a balance term of 2 years;

On count 4: to imprisonment consisting of a non-parole period of 2 years commencing on 28 July 2007 and expiring on 27 July 2009 with a balance term of 8 months, and

On count 5: to imprisonment consisting of a non-parole period of 12 months commencing on 28 January 2006 and expiring on 27 January 2007 with a balance term of 4 months. 4 The overall effective sentence amounted to a non-parole period of 4 years with a balance term of 2 years. As above appears, the sentence on count 5 is now wholly expired as is the non-parole period set in respect of count 2. 5 The Crown opposed the grant of extension of time. The application was supported by an affidavit by the applicant's solicitor sworn 13 November 2008. That solicitor has acted for the applicant throughout the proceedings and the documents show that he was also acting for him in October 2004 when he was previously charged with possessing child pornography. 6 After sentence was imposed on 10 November 2006 a notice of intention to appeal was filed on 8 December 2006 and this notice was within time. It expired on 8 June 2007 and, upon request, the Registrar extended the time until 17 September 2007. The solicitor's affidavit records some telephone contact by counsel with officers in the registry but nothing was done to secure a further extension. The application presently before the Court was filed on 13 November 2008. 7 The supporting affidavit recounted the detail of attempts to make appointments for conference including conference with particular senior counsel. Advice was eventually obtained in July 2008. The further delay from then until November was sought to be explained, at least in part, by the illness of junior counsel. 8 The Crown submitted that no sufficient reason had been presented to explain why junior counsel (who had appeared at Taree District Court) could not have prepared and filed a notice in grounds of appeal nor has any reason been shown why, given the difficulties in appointing a conference, other counsel could not have been briefed for advice. 9 In general, upon an explanation then forthcoming, the Court liberally grants extensions of time. The obvious foundation for implementing that approach is the avoidance of possible injustice in cases where merit might be shown to exist. Nevertheless the requirements as to time for notifying appeal have not been prescribed without purpose, one important purpose being the bringing of proceedings to finality. 10 The circumstances advanced by the applicant in this instance strain the limits of the liberality which I have mentioned. There is considerable force in the Crown opposition and it is with some reservation that I would grant the extension of time and turn to consider the merits of the grounds put forward. I have recorded some of the detail concerning how this application was progressed, as it is appropriate to give notice that similar lack of diligence in attending to time requirements may not be treated so leniently in the future. 11 The facts were before the Court as an agreed statement which his Honour drew upon in making his remarks on sentence. His summary was not suggested to be inaccurate in any respect and I quote therefrom: "The complainants are TF, CM and TM. ……..As at the time of the offences they were each aged eight years and four months. In January 2006, CM and TM were staying with their father in Tuncurry. TF lived in Tuncurry in a house about 300 (sic) from the home of CM and TM's father. At about 3.30pm on Saturday 28 January 2006 and the three girls left the twins' house to go to TF's home for a swim. Later in the afternoon they decided to walk back to the twins' house. TF was wearing a pink bikini and had a towel over her shoulder. She also had a number of stick on tattoos of the Australian flag she had obtained at Australia Day celebrations a couple of days before. CF and TM were both wearing sun shirts and board shorts. CF was wearing underpants but TM was not. CF had both of her arms in plaster. On the way to the twins' home the three girls were walking past the front of the Tuncurry Public School when they were approached by the offender. He told them he was a professional photographer for Girlfriend Magazine and asked if he could take some photographs of them. He suggested they go into the school grounds for this purpose. Once inside the school grounds he commenced to photograph the girls, both individually and as a group. He then asked CM and TM to take their pants off so he could take some photographs of them in bikinis. TF was present when this request was made but it was not directed to her. CM took her board shorts off but TM declined to do so because she was not wearing underwear. The offender then pulled TF's bikini bottoms lower but not exposing her vagina. He said this would look a bit 'sexier'. He also lowered the underpants worn by CM, although they still covered her vagina. He then asked TF and CM to cuddle each other and photographed them in that position. The offender placed his fingers inside TF's bikini bottoms, pulling them forward and exposing her vagina. He took a photograph of this. He did the same to CM. He pulled TF's bikini bottom to the area of her knees and touched her on the vagina. He also pulled CM's underpants down to her ankles and touched her on the vagina. TM was present when this was happening but none of her clothing was removed and she was not touched by the offender. Shortly thereafter the complainants fled and made their way to the twins' home. They complained to the twins' father and they gave a description of a distinctive t-shirt the offender was wearing, it being blue with a large letter E on the front. The twins' father and the three girls then drove around the school and the adjacent park area looking for the offender but to no avail. The father then dropped the girls off at the home of the twins' grandmother and he then reported the matter to Forster Police. He then returned to the Tuncurry area and saw the offender in a car park behind the main street. He approached and told him that he matched the description given by the three girls and that he would ring the police. The offender remained in the area, standing next to his car. Police attended promptly and spoke to the offender. He was cautioned and placed under arrest. A Nikon digital camera and computer floppy disc was found in his car. He was told that the police intended to seize his car and the camera equipment. He claimed to them that he only had photographs of the scenery on his camera. About a week later the police took the camera and floppy disc to their State Electronic Evidence Branch for examination. A disc was removed from the camera and from it were retrieved forty-eight coastal scene images. Also identified were fifteen deleted images. These deleted images had been created on 28 January 2006 between 3.35pm and 3.38pm and had been deleted between 3.49pm and 3.50pm. Those images depicted the complainants, four of them being photos of TF and CM in sexually explicit poses." 12 The relationship of the particular counts to the facts was also specified by his Honour and, again, I can draw from his remarks on sentence: "The offences to which the offender has pleaded guilty are as follows: Count one, indecent assault upon TF a child under ten, namely eight - this offence relates to the offender having pulled TF's bikini bottom to the area of her knees and touching her vagina. Count two, using TF a child under fourteen, namely eight, for pornographic purposes - this offence relates to the offender taking photographs of TF. Count three, indecent assault upon CM a child under ten, namely eight - this offence relates to the offender having pulled CM's underpants down to her ankles and touching her vagina. Count four, using CM a child under fourteen, namely eight, for pornographic purposes - this offence relates to the offender taking photographs of CM. Count five, inciting TM a child under ten, namely eight, to commit an act of indecency with the offender - this offence relates to the offender asking TM to take her pants off so he could take photographs of her. The offences the offender asks to have taken into account are: Offence one, inciting CM a child under ten, namely eight, to commit an act of indecency - this offence relates to the offender asking CM to take her board shorts off so he could take photographs of her. Offence two, possession of child pornography - this offence relates to the offender having in his possession photographs he had taken of the complainants, four of which showed TF and CM with their pants pulled down exposing their vaginas." 13 The notice filed on 13 November 2008 specified five grounds of appeal: 1. His Honour the sentencing Judge erred in rejecting the fact that the Applicant had been himself sexually assaulted at a very young age, as a matter that went to mitigation of sentence.

14 A written submission in support of this ground stated: "There appears to be a statistically established empirical connection between the sexual abuse of the offender at a young age and his perpetrating similar offences as an adult. The connection is not present in every case but the high preponderance of histories of sexual abuse suffered by offenders during their childhood suggests that there is a connection between the two. It would be difficult to demonstrate with absolute or near certainty in any particular case that the offender's abuse at the hands of an adult when a child was a causal factor in his offending as an adult in any particular instance. However, the significant preponderance of the occurrence of adults who sexually offend against children having such a history must make it more likely than not that the abuse of the offender as a child did have a causal psychological connection to the offender's behaviour as an adult. The need to demonstrate a causal connection between the history of sexual abuse as a child and the offender's conduct when it is not immediately apparent does not justify an approach of rejecting the history of sexual abuse of a child in respect of adult offending against children without further evidence establishing the link between the two." 15 The matter of mitigation is required to be demonstrated to exist by the offender on the balance of probability and not as an absolute or near certainty: The Queen v Olbrich (1999) 199 CLR 270. There was no evidence supporting what was stated to have been "statistically established". His Honour accepted that the applicant had been in fact sexually abused as a child but found that the evidence did not satisfy him that that past abuse contributed to the applicant's criminal conduct and thereby reduced his moral culpability. His approach was in conformity with authority: R v AGR (unreported) NSWCCA 24 July 1998. Counsel had referred his Honour to R v Rich [2000] NSWCCA 448 but nothing therein detracts from the correctness of the views expressed in AGR and the several authorities referred to in the judgment of James J who concluded: "If it is established that a child sexual assault offender was himself sexually abused as a child and that that history of sexual abuse has contributed to the offender's own criminality, that is a matter which can be taken into account by a sentencing judge as a factor in mitigation of penalty as reducing the offender's moral culpability for his acts, although the weight which should be given to it will depend very much on the facts of the individual case and will be subject to a wide discretion in the sentencing judge." 16 Rich recognized that prior sexual abuse of an offender may be taken into account in the subjective assessment of an offender. His Honour did so in this instance, although he rejected the past occurrences as reducing moral culpability and said that it would be brought into account "as a part of the matrix of subjective features". 17 This ground has not been made out.

Ground 2: His Honour the sentencing Judge erred in arriving at his assessment of the Applicant's remorse. 18 The complaint raised pursuant to this ground was significantly based upon a comment by his Honour during the sentencing hearing when he said: "I think you can proceed along the lines that I am prepared to accept that your client is genuinely remorseful Mr Kintominas. Again, subject to anything the Crown might wish me to persuade me to on the topic. I think that's clear enough on the evidence." 19 It was submitted that there was a discernible difference between his Honour's assessment of the genuineness of the applicant's remorse and what he said in his remarks on sentence, namely: "On the question of remorse, I have the evidence of the offender and the evidence of others to whom he has spoken. I gained the distinct impression that first and foremost he is concerned for his own disgrace and humiliation and that which he has brought upon his family. He said quite a deal in his evidence about his concern for his victims and their families but I have doubts about whether he was genuinely sincere. His actions in deleting the photographs so soon after taking them may well indicate that he realised at that early stage the evil of what he had done. Against that however is his conceded failure to admit to having indecently assaulted two of the girls until the third of his consultations with Mr Glancy (sic). Having regard however to what he said in his evidence and what he is reported to have said by the others who gave evidence, on balance I think there is just enough for me to conclude that this mitigating feature is established." 20 His Honour did not find, to the contrary of what he had said in the earlier exchange, that the applicant's remorse was not genuine. That he had some doubts about the sincerity of some of the applicant's protestations and that any remorse for the commission of criminal acts might be less prominent than his feelings of disgrace and humiliation brought upon his family, was not inconsistent with his remarks and the finding that the applicant had established to the necessary standard that he was remorseful. 21 As the Crown has pointed out, his Honour applied his finding that the applicant was remorseful as one of the specific factors justifying his departure, in the applicant's favour, from the imposition of the standard non-parole period on counts 1 and 3. 22 Ground 2 should be rejected.

23 Ground 3: His Honour the sentencing Judge erred in assessing the Applicant's prospects of rehabilitation. 24 His Honour expressly turned his attention to the question of rehabilitation which, obviously in all cases, involves assessing the future. Inter alia, his Honour said: "The next matter to consider is the offender's prospects of rehabilitation and his likelihood, or otherwise, of re-offending. He said in his evidence that he did not understand why he committed the offences. He said he wanted to seek help so he could understand the problem and address it so as to ensure it would not happen again. He is fortunate to have the family support that I referred to earlier. I am troubled however as to the fact that he did not realise that he needed to seek help after being charged with the child pornography offences. He claimed in his evidence that he thought he was strong enough to deal with it himself. He had the jolt of having spent two days in custody in relation to that matter. He had the benefit of the supervision of the Probation and Parole Service as a condition of the bond. The fact that an intelligent man, as he obviously is, did not pursue rehabilitation at that stage is not a positive sign. I accept on the balance of probabilities that the offender does appreciate the need to seek rehabilitative assistance and I trust that he will. However, whether he has good prospects of rehabilitation is something that, on the evidence before me, I am unable to determine. Being motivated to seek it is one thing but success in that endeavour is another. It does not appear to me that enough about his psychological problems has been professionally determined to enable a finding in his favour that his rehabilitation prospects are good and that he is unlikely to re-offend." 25 It is convenient to identify now his Honour's reference to an earlier offence. On 15 March 2005 the applicant was convicted at Downing Centre Local Court upon two charges of possessing child pornography and on each charge was sentenced to imprisonment consisting of a non-parole period of 6 months with a balance term of 6 months. He appealed against the severity of those sentences and in the District Court on 15 June 2005 the sentences were quashed, and, in lieu thereof the applicant was placed upon a recognizance to be of good behaviour for two years on each charge. Those recognizances were current when the offences presently under consideration were committed. 26 The facts sheet in respect of the earlier matters was before the District Court in Taree. It showed that in September 2004 a multi-national initiative was engaged in the detection of persons involved in the distribution and possession of child pornography. In October 2004, police executed a search warrant at premises where the applicant was residing and from his property there was seized a computer on the hard drive of which was a picture of two young females in a sexually explicit pose. Also seized was a compact disc from which were retrieved numerous similar images. 27 For this ground to succeed it will be necessary to demonstrate that his Honour's conclusion was wrong. Reliance was placed upon observations by a psychologist, Mr Glancey, who expressed an opinion that experience showed that chronic psychological disturbance is more likely to be successful after crisis and discovery of motivation. Mr Glancey attended upon the applicant three times (27 June, 24 July and 29 August 2006). A very substantial bulk of his report records history and assertions which were supplied by the applicant. He does not refer to having applied any psychometric testing nor any results of such. The applicant told Mr Glancey that he entertained an interest in photographing girls who were naked. It was not until the third consultation that the applicant admitted to Mr Glancey that he had touched the children on the vagina. 28 It was argued that there are indications of steps towards rehabilitation in particular the action of the applicant in seeking to delete the images from his camera and not leaving the vicinity in which the offences were committed. His Honour accepted that the applicant had tried to delete the images and it might be noted that the stated purpose of the applicant's presence in the township to assist his father in taking some photographs in connection with the recent purchase of a motel in the town would very likely result in an explanation being called for if he had left suddenly. 29 The failure of the evidence to satisfy his Honour that the prospects of rehabilitation were good was an available conclusion and error has not been shown. 30 Ground 4: The sentences imposed by the learned sentencing Judge were manifestly excessive.

Ground 5: The total sentence imposed upon the Applicant was manifestly excessive. 31 His Honour correctly observed that the various applicable maximum prescribed penalties and the standard non-parole period in respect of counts 1 and 3 were guides to which he should have reference. There were multiple victims, and, although the offences occurred on the one occasion, it was entirely appropriate for his Honour to consider cumulation. His approach and impositions which he made were in accordance with binding authority: Pearce v The Queen (1998) 194 CLR 610. It was a serious element of aggravation that the applicant was subject to a current recognizance for offences which were not of an entirely different character. It was also significant to take into account the actual ages of the children where an offence is defined in terms of being anywhere below a specific age. 32 It was claimed that the individual sentences were excessive when compared to other cases involving indecent and/or sexual assault on children. At the hearing the Court was handed a folder containing judgments in some thirty seven cases which, in various ways, related to sexual offences against children. It was accepted, as is the case, that every offence and every offender are different and it suffices to record that that accumulation did not present a pattern outside the range of which this applicant's sentences for these offences fell. 33 This Court has always stressed that those who prey upon the innocence of young children will be met with retribution and personal deterrence as well as signalling to others who may be minded to so offend that condign punishment will follow such depredations. 34 In my view the sentences and their structure were imposed well within the exercise of sound discretion by his Honour. 35 I would order the time for filing the notice of appeal extended, I would grant leave to appeal against sentence but dismiss the appeal. 36 HOWIE J: I agree with Grove J. **********

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