Hitchen v R

LEGISLATION CITED: Criminal Code (Cth) - s 474.19(1)(a)(i), (iii) Crimes Act (NSW) - ss 66EA(1), 91G(1)(a), 91H(3)

R v MJR (2002) 54 NSWLR 268 CASES CITED : Langbein v R [2008] NSWCCA 38 R v Booth [2009] NSWCCA 89

COUNSEL: S Dowling - Crown R J Button SC - Applicant

SOLICITORS: S Kavanagh - Crown S O'Connor - Applicant

IN THE COURT OF CRIMINAL APPEAL 2008/18854

McCLELLAN CJ at CL HOWIE J ROTHMAN J

MONDAY 3 MAY 2010 Glen HITCHEN v REGINA Judgment 1 McCLELLAN CJ at CL: I agree with Howie J. 2 HOWIE J: The applicant was sentenced in the District Court for a number of offences relating to child pornography and child sexual assault. He had pleaded guilty in the Local Court and was committed for sentence. He was before the District Court for six offences and asked that offences on two Form 1's be taken into account. Garling DCJ (the Judge) sentenced the applicant to a total prison term of 24 years with an overall non-parole period of 18 years. 3 There is one ground of appeal that asserts that the "aggregate head sentence and the aggregate non-parole period are manifestly excessive". 4 The offences for which the applicant was sentenced are as follows:

Count 1 Transmitting child pornography contrary to s 474.19(1)(a)(iii) of the Criminal Code (Cth) - maximum penalty: imprisonment for 10 years.

Count 2 Accessing child pornography contrary to s 474.19(1)(a)(i) of the Criminal Code (Cth) - maximum penalty: imprisonment for 10 years.

Count 3 Possess child pornography contrary to s 91H(3) of the Crimes Act (NSW) - maximum penalty: imprisonment for 5 years.

Count 4 Persistent abuse of a child contrary to s 66EA(1) of the Crimes Act (NSW) - maximum penalty: imprisonment for 25 years.

Count 5 Use child for pornographic purposes s 91G(1)(a) of the Crimes Act (NSW) - maximum penalty: imprisonment for 14 years.

Count 6 Transmitting child pornography contrary to s 474.19(1)(a)(iii) of the Criminal Code (Cth) - maximum penalty: imprisonment for 10 years. The first Form 1 was taken into account on count 6 and contained two offences of transmitting child pornography. The second Form 1 was taken into account on count 5 and contained 4 counts of using a child for pornographic purpose. 5 The sentences imposed were as follows:

Count 1 Non-parole period of 3 years with a total term of 4 years from 5 December 2007

Count 2 Non-parole period of 3 years with a total term of 4 years from 5 December 2007

Count 3 Non-parole period of 2 years with a total term of 3 years from 5 December 2007

Count 4 Non-parole period of 12 years with a total term of 16 years from 5 December 2007

Count 6 Non-parole period of 4 years with a total term of 6 years from 5 December 2019

Count 5 Non-parole period of 2 years with a total term of 8 years from 5 December 2023 6 Charge 4 referred to a period between 18 November 2004 and 20 October 2007 and alleged that there were 12 separate occasions on separate dates that the applicant had sexual intercourse with the complainant who was then under the age of 10. It also alleged that between those dates there were 36 separate occasions on separate dates that the applicant had committed acts of indecency with the complainant she being then under the age of 16. All of the other offences occurred at dates between February 2005 and December 2007. 7 The facts were agreed and can be briefly summarised. Investigations of the applicant's conduct commenced in November 2007 and involved the police taking custody of computer equipment from the premises in which the applicant lived. They interviewed the complainant who was the daughter of the applicant's former partner. She related to them a history of sexual activity in which she engaged with the applicant. 8 Police found over 2,000 images of the complainant, who was aged between 7 and 9 years when the photographs were taken, being subjected to various acts of intercourse, dressed inappropriately or in various stages of undress, using a vibrator and exposing her genitals and anus. There was also a video showing the complainant being subject to fellatio. The applicant had transmitted some of these images to persons overseas and engaged in communications via "chat rooms" discussing child pornography and exchanging images. 9 The applicant had in excess of 729,000 child pornographic images including children of a young age engaging in sexual activity with males and a video of a child engaged in sexual acts with a dog. The applicant had 2,700 video files depicting child pornography. 10 The applicant met the complainant's mother in 1998 and they lived together in a relationship at Port Macquarie and then in Queensland for six or seven months. They returned to Port Macquarie but then lived separately while maintaining the relationship. The applicant described the child as his "best friend" and said that he felt unwanted by her mother. There was a victim impact statement from the complainant's mother as to the effect of the abuse upon the child's well being. 11 The Judge found that counts 3, 4, 5 and 6 fell into the worst category of offences of their kind. He had viewed the material in count 3 and described it as "revolting". He said that taking into account the nature of the images and videos and their "very large number" that the offence "falls into the top of the range". He expressed the view that a maximum penalty of 5 years was inadequate to punish the conduct. 12 In respect of count 4, the Judge noted that the offence began when the child was aged 7 and extended over a period of 3 years. The sexual assaults on the child continued whether she was asleep or awake. It involved intercourse with the child's mouth, her vagina and anus. The applicant photographed and videoed his activity. The Judge stated:

It is one thing to look at a still photograph but watching what he was doing to this child on video brings home the horror of what was happening to her. 13 The applicant had the complainant perform indecent acts while wearing black fishnet stockings and using a dildo. The Judge remarked:

He took photos and videos of the child while he was abusing her, he dressed her in clothes for pornographic purposes. There was absolutely no reason other than for his sexual gratification. He took away this child's right to enjoy the life of a child, free from harm and abuse. He was in a relationship with her mother and there was no doubt that the child totally trusted him. The number of incidents of sexual abuse, the fact that they occurred over about three years and the very nature of the sexual abuse placed this in the most serious category. 14 The Judge found that for counts 4, 5, and 6 there was significant planning in relation to buying the child clothes, obtaining sex toys and the taking of the photographs. 15 In relation to count 5 his Honour noted that the period of the offence was between February and May 2005 during which the applicant used the child on nine separate occasions for the purpose of photographing and videoing her in erotic postures including exposing herself, holding his penis, shaving herself and wearing inappropriate clothing. The child was aged 7 at the time and was, as his Honour found, vulnerable. The Judge described the photographs as "disgusting and degrading". 16 Count 6 took place between April and May 2005 while the child was aged 7. The relevant Form 1 matters occurred in April 2005 and May 2007. The applicant took indecent photographs of the complainant and included the child holding written messages to persons to whom the images were to be sent. The images were transmitted to five persons living in Japan, the United States and Ireland. The Judge described the images as "disgusting" and noted that they had been transmitted overseas and could be used in child pornography sites on the Internet. The Judge stated:

This charge is not just simply transmitting child pornography, it is transmitting child pornography of a 7 year old girl known to the prisoner and whose mother he is in a relationship with. This is not an anonymous photograph which would be bad enough, this is exposing this young girl to the child pornography industry. For these reasons which include the age of the child, the relationship and those other matters I have set out, in my opinion, rank it in the worst category of this type of offence. 17 The applicant was aged 44 years and had no previous convictions. He had numerous relationships that failed. He has strong family ties and there was before the Judge a letter from his mother and sister that stated he was a person of extreme kindness and generosity but was naïve, gullible and trusting. He gave evidence describing how he came to have an obsession with child pornography that led to his taking the photographs of the child as it "gave me some credibility with other parties and the level of communication escalated". He gave evidence as to the nature of his imprisonment on protection, including the absence of educational facilities. But he indicated that he was aware that there were gaols that catered for persons who had committed similar crimes. 18 There was a psychological report prepared within Correctional Services and requested by the District Court. The applicant has little in his background of relevance. It was noted that although the applicant accepted responsibility for the conduct, he continued to blame the child and minimised his involvement in the preparation of the pornographic images. He considered the child as his stepdaughter. He demonstrated poor awareness regarding issues of consent or the impact of his behaviour on the child. He demonstrated a degree of "sexual preoccupation" and would access the Internet sometimes for the whole day. He minimised the degree of planning involved in the offending and the impact upon the child, stating that, if he had not been arrested, he would have had a father-daughter relationship with her. He was prepared to be involved in sex offender programs when they became available to him. 19 There was a pre-sentence report that noted the "low level of victim empathy demonstrated". 20 The applicant submitted to this Court that the sentence was outside the range available to his Honour. The written submissions contain the following:

…………..In short, such a sentence may well have been appropriate if the applicant had pleaded guilty to murdering the victim. The aggregate sentence is out of proportion to the criminality of the applicant. 21 It was not submitted that any particular sentence was too severe but the complaint is about the structure of the sentences. In particular, the applicant argues that the total accumulation of the non-parole period for counts 4, 5 and 6 was unwarranted. At the hearing, the applicant stressed that the sentence imposed was after a plea of guilty that the Judge believed warranted a discount of 25 per cent. 22 The Crown maintained that, although the sentences were heavy, they were warranted by the severity of the overall criminality of the applicant. It was noted that there had been a change in the community's attitude to child sex offences in recent times as the long-term impact of such offences on the victims had become recognised: see R v MJR (2002) 54 NSWLR 268 at [57]. Reference was made to what had been said about sentencing for offences under s 66AE in Langbein v R [2008] NSWCCA 38 in which it was stated that the offence is more serious than the individual acts that comprise the offence. The Crown noted that the offence in this case comprised 12 offences that each carried a maximum penalty of 25 years with a standard non-parole period of 15 years. There were also 36 acts of indecency that each carried a maximum penalty of 10 years imprisonment. 23 Reference was also made by the Crown to what had been said about the seriousness of the child pornography offences by Simpson J in R v Booth [2009] NSWCCA 89 at [40] to [44] and the need for deterrent sentences. 24 I accept that the offences were of the utmost gravity. The Judge stated that he had never seen offences as serious as these. Of course he had seen the pornographic images and videos. Although the offer was made to have this Court receive the exhibits, it was declined. His Honour's description of its contents was quite sufficient to reveal the appalling nature of the abuse of this child from the age of 7. I am prepared to act upon his determination that some of the offences were in the worst category. 25 But, in my opinion, it cannot be correct that the criminality, as serious as it was, warranted a total sentence before discount of 32 years. I do not accept the applicant's argument that the sentence is manifestly excessive having regard to what sentence might have been imposed had the applicant murdered the child. Maximum sentences and standard non-parole periods have been set by Parliament for the most serious child sexual assault offence at a very high level: 25 year maximum and a standard non-parole period of 15 years. It must, therefore, be feasible that an offender who is convicted after trial of a very serious offence of that kind could receive a harsher sentence than a person who plead guilty to a mid range offence of murder. Even if such a result might be seen as being unpalatable or even illogical, it could arise from the current sentencing regimes for the two offences. 26 The result in this case depends upon a proper application of the totality principle. The fact that the applicant committed a number of offences that fall within the worst category does not mean that he must receive a sentence that will reflect the criminality of each of those offences if viewed in isolation. The totality principle works to limit punishment to an overall assessment of the offender's criminality in its entirety and to recognise that sometimes appropriate punishment for each offence can result in a sentence that is unduly harsh or crushing. 27 As bad as the offending was, it was a chapter of the applicant's life over three years after 41 years of a crime-free existence within the community. The applicant clearly became obsessed with the child, with pornography and with the Internet. It was one course of criminal conduct that seems to have reached the stage where the applicant was unable to control himself. This is not stated in order to minimise his behaviour. It should be denounced in the way that his Honour did and the sentence must be a very severe one. But the conduct must be seen from the perspective of a lack of any suggestion of this type of behaviour until he came into contact with the complainant. 28 I accept that his Honour paid more than mere lip service to the totality principle, in that he made the sentences for the first three offences concurrent with each other and with count 4. But I believe he erred in making the sentences for the last three offences cumulative on one another. It is difficult to understand how his Honour applied the discount for the plea of guilty. For example, the sentence for the s 66EA(1) offence of 16 years does not on its face indicate that a 25 per cent discount has been applied. Nor does the sentence for count 5 that was 8 years. But in any event, as I have indicated, a starting overall sentence of 32 years before the application of the discount is in my opinion manifestly excessive. 29 On the prospect that the Court might re-sentence the applicant, he filed an affidavit as to his current custodial situation. He is on a strict form of protection known as "limited association". He is confined to his cell for 22 hours per day and has little work or education opportunities. Although there was some evidence before the Judge as to the applicant's conditions of imprisonment, his custody appears now more onerous than it was at the time of sentence. This is a matter to be taken into account. 30 I would grant leave to appeal and allow the appeal in part. I believe that the appropriate starting sentence before discount is 24 years so that the overall sentence should be 18 years. The non-parole period should be 14 years even though this is a higher percentage of the total term than would result from the application of the statutory ratio. It still leaves the applicant ample time on parole and is the least time he should serve in custody. I have reduced the sentence on count 5 for the purpose of applying the totality principle and found special circumstances in order to achieve the appropriate overall non-parole period. Considered by itself the sentence would be inadequate. 31 The orders I propose are:

1. Grant the applicant leave to appeal and allow the appeal in part.

2. Confirm the sentences imposed for counts 1, 2, 3 and 4.

4. In lieu the applicant is sentenced: Count 6: A sentence of imprisonment with a non-parole period of 4 years with a balance of term of 2 years to commence on 5 December 2015 and to expire on 4 December 2019. Count 5 A sentence of imprisonment with a non-parole period of 2 years with a balance of term of 4 years to commence on 5 December 2019 and to expire on 4 December 2021, the date upon which the applicant is eligible for release to parole. 32 ROTHMAN J: I agree with Howie J.

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