JL v R

Judgment 1HOEBEN CJ AT CL: I agree with McCallum J. 2HARRISON J: I agree with McCallum J. 3McCALLUM J: JL seeks leave to appeal against the sentence passed upon him after he pleaded guilty in the District Court to 21 sexual offences committed against his daughter. At his request, a further seven offences to which he admitted guilt were taken into account on a Form 1, as allowed under s 33 of the Crimes (Sentencing Procedure) Act 1999. Rather than imposing separate sentences, the sentencing judge imposed an aggregate sentence, as allowed under s 53A of the Act. The sentence was a term of imprisonment with a non-parole period of 13 years and 6 months and a balance of term of 4 years and 6 months, giving a total sentence of imprisonment for 18 years. 4The applicant was sentenced on the basis of an agreed statement of facts. It is not necessary to recite those facts in full. The offences were committed over a period of about four years when the victim was between seven and 11 years old. They fell broadly into two categories: direct sexual assaults and pornography offences. The most serious were two offences of aggravated sexual intercourse with a child under the age of 10 years contrary to s 66A(2) of the Crimes Act 1900. The circumstance of aggravation was that the victim was under the applicant's authority. Those offences were committed when the victim was nine. They related to an occasion when the applicant had the victim perform fellatio on him and then had full penile intercourse with her. The maximum penalty for those offences is imprisonment for life. The offences carry a standard non-parole period of 15 years. 5There were also five offences of sexual intercourse with a child under the age of 10 years contrary to s 66A of the Crimes Act and one of attempting to commit that offence contrary to s 66B of the Act. Those offences were committed prior to the introduction of the aggravated form of the offence now created by s 66A(2). They carried a maximum penalty of imprisonment for 25 years. The offences under s 66A carried a standard non parole period of 15 years. There was no standard non-parole period for the offence of attempt contrary to s 66B. 6Three of the offences under s 66A were based on the victim's statements to police. They involved acts of cunnilingus, fellatio, digital penetration of the vagina, penile penetration of the vagina and the pushing of other objects into the vagina against a complaint of immense pain. The victim was aged seven or eight at the time of those offences. 7The two other offences under s 66A and the offence of attempt under s 66B were founded on a series of photographs all taken on the same day in August 2008, when the victim was eight years old. One of those (depicting penile penetration of the vagina) was dealt with as a separate charge while a further two (depicting penile penetration of the anus and attempted penile penetration of the vagina) were taken into account on a Form 1. I do not know whether the decision to take that course finds any support in the content of the photographs, which were not before this Court. However, it should be noted that the appropriateness of including very serious offences on a Form 1 has been doubted: see C-P v R [2009] NSWCCA 291 at [6] to [9] per McClellan CJ at CL. The sentencing court is not bound by the prosecutor's decision as to the inclusion of an offence on a Form 1. On the contrary, the power under s 33(2) to take a further offence into account is conditioned upon the court's considering that course appropriate. In my respectful opinion, the charge of anal intercourse at least (committed against an eight-year old girl) was not an appropriate one for inclusion on a Form 1. That is not to say that its inclusion produced an inadequate sentence in the present case, but it was a very serious separate act and fit to be marked as such. 8There were also two offences of aggravated sexual intercourse with a child between the ages of 10 and 14 years contrary to s 66C(2) of the Crimes Act. The circumstance of aggravation in each case was that the victim was under the applicant's authority. One related to an act of fellatio when the victim was 10. One related to digital penetration of the vagina when the victim was 11. The maximum penalty for those offences was imprisonment for a period of 20 years. No standard non-parole period is prescribed for that offence. 9There was a further offence of aggravated sexual intercourse without consent contrary to s 61J of the Crimes Act relating to digital penetration of the vagina. The circumstance of aggravation relied upon was that the victim was under 16 years, being aged 11 at the time of the offence. That offence carries a maximum penalty of imprisonment for 20 years with a standard non-parole period of 10 years. A further offence based on the same incident was taken into account on a Form 1 for that offence, being an offence of inciting a person under the age of 16 to commit an act of indecency, contrary to s 61N(1) of the Crimes Act. That offence carries a maximum penalty of imprisonment for 2 years. The incitement was that the applicant asked the victim to rub his penis with her hands. 10There was accordingly a total of 11 charges of sexual intercourse carrying maximum penalties ranging from imprisonment for 20 years to life. Those charges related to almost every conceivable form of sexual intercourse (digital penetration of the vagina, penile penetration of the vagina, inserting objects such as pens, pencils and rubbers into the vagina, cunnilingus, fellatio to the point of ejaculation and penile penetration of the anus). 11There was also an offence of an aggravated act of indecency on a child under the age of 10 years contrary to s 61O(2) of the Act, which carried a maximum penalty of imprisonment for 7 years. That was one of the offences taken into account on a Form 1. The charge related to the victim complying with the applicant's demand to massage his penis. There were also three charges of aggravated indecent assault on a person under the age of 16 contrary to s 61M(2) of the Act, two of which were dealt with on a Form 1. That offence carries a maximum penalty of imprisonment for 10 years with a standard non-parole period of 8 years. Those charges were based on video footage from a camera hidden in the victim's bedroom with which the applicant filmed himself touching her breasts. 12There was also an aggravated act of indecency against s 61O(1) of the Crimes Act relating to an occasion when the applicant asked the victim to prepare a bath for him with roses in it. While he was in the bath he forced her to massage his penis, grabbing her hand when she tried to stop. That offence carries a maximum penalty of imprisonment for 5 years. 13There was also a series of pornography charges. There were six charges of using a child under the age of 14 for pornographic purposes contrary to s 91G(1)(a) of the Crimes Act, which carries a maximum penalty of 14 years' imprisonment. Those charges were based on photographs taken by the applicant of the victim in various sexual poses and video footage of her undressing in her bedroom. 14The photographs also gave rise to two charges (one dealt with on a Form 1) of inciting an indecent act in a person under the age of 16 years for the purpose of producing child pornography contrary to s 61O(2A) of the Act. Those offences carried a maximum penalty of imprisonment for 10 years. They related to photographs taken in January 2009, when the victim was 8. One showed her digitally penetrating her own anus. One showed her lying on her back displaying her vagina. 15Finally, there were three charges of aggravated filming a person engaged in a private act contrary to s 91K(3) of the Crimes Act. Those offences were based on three separate pieces of footage taken by the applicant on different dates in which he secretly filmed friends of the victim with their breasts exposed while they were changing in her bedroom. Those offences carry a maximum penalty of imprisonment for 5 years. 16In determining the aggregate sentence, his Honour indicated the sentences that would have been imposed for each offence had separate sentences been imposed, as required under s 53A(2) of the Crimes (Sentencing Procedure) Act. The indicative sentences are summarised in a table provided by the Crown, a copy of which is attached to this judgment. The longest individual indicative sentence was a term of imprisonment for 12 years with a non-parole period of 9 years (stated in respect of three of the offences of sexual intercourse). The aggregate sentence accordingly reflected accumulation of 4 years and 6 months in the non-parole period and 6 years' accumulation in the total sentence. 17The indicative sentences are not amenable to appellate review (see R v Brown [2012] NSWCCA 199 at [17]; R v Nykolyn [2012] NSWCCA 219 at [58]; Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 at [227]) and in any event, the applicant makes no complaint in respect of them, acknowledging that each was "within the normal bounds of sentencing discretion". It was submitted, however, that the aggregate sentence entails error on four grounds. 18Ground 1 is: His Honour erred in failing to take into account as a mitigating factor on sentence that the applicant had assisted law enforcement authorities leading to the discovery of further offending on his part. 19The contention that the sentencing judge erred in that respect is made in this Court notwithstanding the fact that no submission regarding the applicant's alleged assistance to authorities was made at the proceedings on sentence in circumstances where the applicant was represented by experienced senior counsel. As submitted on behalf of the Crown, the role of this Court is to review the exercise of the sentencing judge's discretion, not to re-hear a plea of mitigation: Zreika v R [2012] NSWCCA 44 at [80]. 20In my assessment, the fact that the matter was not raised by the appellant's counsel at the proceedings on sentence reflects an astute recognition that the point had no merit. Section 23 of the Crimes (Sentencing Procedure) Act provides that a court may impose a lesser penalty than it would otherwise impose having regard to the degree to which the offender has assisted law enforcement authorities in the detection or investigation of the offence. The provision of assistance to authorities does not mandate the imposition of a lesser penalty. The Act specifically directs the court as to the matters to be considered in making that determination: see s 23(2). In particular, the court is required to have regard to the significance and usefulness of the offender's assistance. 21In the present case, the offences came to light when the victim complained to her mother. She made three statements to police during which she reported both the direct physical assaults and the fact that the applicant had photographed her naked in various sexual poses. The applicant was arrested on the evening of the victim's first approach to police. He admitted that he had done something "bad" to his daughter, describing an incident when he had removed her "panties" and asked to see what she had underneath. However, he denied committing any form of sexual act upon her and denied ever asking her to pose for him naked or taking photographs of her. 22Police subsequently attended the family home where they seized memory cards, USB sticks, portable disc drives and several cameras and flash drives. They later returned and found a wireless webcam in the victim's bedroom and further webcams in the applicant's study. They returned again to seize further electronic records. The seized material formed the basis for all of the pornography and related charges except three (identified as sequences 23, 45 and 48). The material which formed the basis for those three charges was contained in encrypted files on a USB stick. Police approached the applicant's legal representative and asked whether he would provide the password for those files. He provided a number of possible passwords, one of which provided access to the encrypted files, resulting in the three further charges. 23One of the further charges (sequence 23) was an offence of using a child under the age of 14 for pornographic purposes. As already noted, there were six such charges, four relating to photographs and two relating to video footage. Sequence 23 related to a series of 11 photographs found on the encrypted file. The three other offences relating to a total of 18 further photographs had already been detected without the assistance of the applicant. In his indicative sentences, the judge indicated that sequence 23 would have attracted a term of imprisonment for 5 years concurrent with the three other offences relating to photographs. 24It may be acknowledged that the photographs in sequence 23 also gave rise to two further charges (sequences 45 and 48) of inciting an indecent act in a person under 16 for the purpose of the production of child pornography. One of those charges was dealt with on a Form 1 in respect of the other. The indicative sentence in respect of the principal offence (sequence 45) was a fixed term of 4 years imprisonment. 25The applicant's written submissions in support of ground 1 went little further than to note that, in accordance with authority, the disclosure of otherwise unknown guilt is a matter which warrants leniency: R v Ellis (1986) 6 NSWLR 603 at 604E. That was a case in which, after making a confession to a minister of religion, the offender presented himself to police and confessed to seven offences of armed robbery. His guilt of those offences was disclosed for the first time when he came forward. The decision in Ellis does not mandate leniency in the circumstances of any particular case. 26In the present case the assistance provided was of relatively limited significance and usefulness in the context of the whole of the Crown case. The applicant's guilt came to the attention of the police as a result of the victim's complaint to her mother. Police found the encrypted file without the applicant's assistance. They did not need his assistance to anticipate that it probably contained further evidence against him. There is no evidence one way or the other as to whether they could have obtained access to the file without his assistance. It is therefore unsurprising that his alleged assistance was not relied upon by senior counsel at the proceedings on sentence. I am not persuaded that the judge's failure to refer to it reveals error. Even if there was error in that respect (which I do not accept), I do not consider that attention to that issue would have had a material impact on the aggregate sentence imposed. 27In my view, ground 1 should be rejected for those reasons. 28Ground 2 was not pressed. 29It is convenient to address grounds 3 and 4 together. Ground 3 is: His Honour erred in finding that there had to be a causal relationship between the applicant's own sexual abuse as a child and the commission of his offences against his daughter before he could take that matter into account in mitigation of penalty. 30Ground 4 is: His Honour erred in failing to give effect to his finding that the applicant had been sexually abused as a child as a matter relevant to the assessment of the subjective features of the applicant's case. 31It was not disputed at the proceedings on sentence that the applicant had been sexually abused as a child. He gave a detailed history of those events to two experts who provided opinion evidence in his case, Mr Sam Borenstein, a clinical psychologist, and Dr Bruce Westmore, a psychiatrist. The applicant gave sworn evidence at the proceedings on sentence that what was recorded in their reports was true. He was not challenged on that evidence. 32Mr Borenstein's report recorded that the applicant, who grew up in a small village in France, was repeatedly sexually abused by a man referred to in the family as "Uncle John", who was in fact the applicant's paternal grandmother's step-brother. The applicant was raised in a strict Catholic household and said he also suffered violence at the hands of his mother. Uncle John had a friend, Marcel, who ran a hotel. The sexual abuse involved touching, witnessing Uncle John and Marcel having anal sex with each other and being instructed in how to perform sex. The applicant said Uncle John and Marcel would take photographs of the applicant and Marcel's son having sex with each other. Other boys and girls were included in the abuse. The applicant had mixed feelings towards Uncle John, whom he regarded to be attentive and loving, which was in contrast with the applicant's home circumstances. However, he said he wanted "to hate them for what they did". 33The applicant also told Mr Borenstein that he was later further sexually and physically abused by a boy he had met at Marcel's hotel. 34Dr Westmore recorded that the abuse included touching, oral sex and anal penetration. He said it was sometimes connected with games and the giving of gifts such as toys. 35Counsel for the applicant at the proceedings on sentence invited the judge to make a finding of "a linkage, whether it be direct or indirect" between the childhood abuse of the applicant and his abuse of his daughter. He submitted that the evidence supported a conclusion that there was a link such that the applicant's moral culpability should be regarded as being reduced. He relied on the decision of this Court in R v AGR (New South Wales Court of Criminal Appeal, 24 July 1998, unreported) where James J (with whom Mason P and Groves J agreed) said: In my opinion, 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. 36In written submissions in this Court, it was noted on behalf of the applicant that those remarks have been cited with approval in Henry v R [2009] NSWCCA 69 at [15] per Grove J, McColl JA and Howie J agreeing at [1] and [36] respectively. In Henry, Grove JA also referred to the decision of this Court in R v Rich [2000] NSWCCA 448 where it was recognised that prior sexual abuse of an offender may be taken into account in the subjective assessment of that offender. In Rich, the sentencing judge had said that earlier sexual abuse of the offender "could provide an explanation for his conduct in this case and goes some way towards mitigating the offences". Studdert J thought that conclusion may have been "unduly favourable" to the respondent but nevertheless accepted that the earlier sexual abuse was a relevant subjective feature to be taken into account (Wood CJ at CL and Whealy J agreeing at [56] and [57] respectively). 37Rich was a case in which a 38 year old man who had been repeatedly sexually assaulted as a child committed a single offence of sexual assault whilst heavily affected by alcohol. In Henry, the sentencing judge had accepted that the applicant had in fact been sexually abused as a child but was not satisfied on the evidence (which was scant) that the past abuse had contributed to the applicant's criminal conduct and thereby reduced his moral culpability. The Court of Criminal Appeal held that there was no error in that respect. 38The applicant also relied upon two decisions of the Victorian Court of Appeal on this issue. In AWF v R [2000] VSCA 172; (2000) 114 A Crim R 434 at [6], the Court accepted that evidence of prior abuse of the offender is relevant, at least where there is some expert evidence to connect it with the offending: at [34] per Chernov JA; Ormiston and Buchanan JJA agreeing at [6] and [9]. However the Court also recognised, as has been stated on many occasions, that the weight to be given to such evidence will vary according to the circumstances. Ormiston JA noted that abuse of that kind will not automatically lead to a reduction of sentence, saying "in general it is not so much the cause that is important: rather it is the consequences which flow from those earlier events." 39The decision in AWF was cited in R v Dunne [2003] VSCA 150 as authority for the proposition that, in order to be relevant to sentencing, it need not be established that childhood sexual abuse of the offender caused his offending, and that such abuse "may be relevant to moral culpability, rehabilitation and specific deterrence" (paraphrasing the remarks of Chernov JA). The Court in Dunne also reiterated the observation made by Ormiston JA that abuse of that kind will not automatically lead to a reduction of sentence and that the important consideration is the consequences which flow from the earlier events. 40The evidence in the present case was mixed. The psychologist, Mr Borenstein, was of the opinion that the applicant's primary diagnosis was one of complex post traumatic stress disorder with dissociative tendencies and a co-morbid diagnoses of major depression, all directly attributable to the sexual abuse he suffered as a child. Mr Borenstein said: I believe there is a direct connection between his complex PTSD, dissociation and the offences which bring him before the Court. It is most likely [the applicant] was re-enacting the past, during a period of time when he felt acutely depressed, feeling alienated and rejected within the family unit. 41Dr Westmore was more equivocal. In his first report he noted that there were some similarities between the abuse the applicant suffered and his own offending behaviour. He said: Some link or connection might therefore be expected, but I am of the view that the aetiology of the offending behaviour is, as I noted, "complex". I think the original abuse of [the applicant] by his uncle affected primarily his mood state, both then and subsequently. 42Dr Westmore "stopped short" of a diagnosis of PTSD but acknowledged that the applicant may have had symptoms of that type. He did not feel able to indicate that there is a direct connection between any PTSD symptoms suffered by the applicant and his offending behaviour. 43Ground 3 alleges that the trial judge erred in his assessment of that evidence by applying an incorrect legal principle that "there had to be a causal relationship between the applicant's own sexual abuse as a child and the committing of his offences against his daughter before he could take that matter into account in mitigation of penalty". 44I do not think that is a correct description of the approach taken by the sentencing judge. His Honour accepted that the applicant was sexually interfered with as a child and accepted that that fact "did result in a psychological disturbance in him at that time and following". His Honour noted (correctly) that Dr Westmore had not expressed the opinion that the offending against the applicant and his own offending against his daughter were causally related. But it does not follow that his Honour was posing a causal relationship as the test to be applied. His Honour went on to consider the evidence carefully, noting that Dr Westmore had expressed the opinion that the predominant effect of the applicant's abuse was that he became depressed. His Honour then considered whether the circumstances established by the evidence lessened the applicant's moral culpability. He regarded that to be "a very complex psychological or psychiatric question". 45The remarks on sentence reveal that his Honour turned his mind specifically to the question whether the evidence established that the applicant's moral culpability was lessened on account of his own experience as a victim of abuse. He concluded, on the strength of Dr Westmore's opinion, that it was not. He referred to the paradox that the applicant of all people would have understood the extent of the damage that could be occasioned to a victim of sexual assault. He noted that the conduct continued over a period of years and involved a measure of deliberateness and planning, particularly in respect of the taking of photographs and video footage. His Honour expressly found that the applicant must have known that his conduct was criminally wrong. 46His Honour accepted that the applicant may have been depressed at times and took that into account as a factor which "may lessen his moral culpability for some of the offending". 47The judge expressed his conclusion in the following terms: I do not see evidence of [the sexual offences committed against the applicant] contributing to his offending when that offending is understood in its entire context. I recognise that he suffered depression as a result of his earlier interference, that depression continued into later life and may have meant that he drank more than he should have and in that context perhaps his moral culpability is lessened to some degree, in the manner in which I have attempted to explain but in my view it is a relatively minor consideration on the sentencing exercise. 48I do not think those remarks reveal any departure from the principles set out above. The judge accepted that the childhood abuse of the applicant had affected his personality and made him prone to depression. In doing so, he was considering the consequences which had flowed from the abuse of the applicant in accordance with the principles stated in the Victorian authorities. However, subject to one qualification, his Honour did not accept that depression contributed to the applicant's offending "understood in its entire context" (presumably referring to the seriousness, frequency and extended period of the offending and the degree of planning involved, particularly in the pornography offences). The qualification was that the judge accepted that the applicant's experience as a victim of sexual abuse had caused him to abuse alcohol, which his Honour accepted lessened the applicant's moral culpability to some degree. 49The judge having expressly considered those matters in accordance with accepted principle, the argument becomes one as to the manner in which he exercised his discretion. In my view, it was open to his Honour to take the view, having regard to the very serious nature of the offending for which the applicant stood to be punished, that the contributing factor of the childhood abuse of the applicant should be given relatively minor weight in all the circumstances. Grounds 3 and 4 must be rejected, in my view. 50Ground 5 is: In all the circumstances, the overall aggregate sentence and non-parole period is manifestly excessive, particularly having regard to subjective features of the applicant's case. 51In support of this ground, the applicant appeared to take issue with the judge's finding that the offending was above the mid-range of seriousness. The judge's finding on that issue was expressed in the language of the provisions of the Crimes (Sentencing Procedure) Act dealing with standard non-parole periods. It was not strictly necessary for his Honour to make a finding in those terms (cf Muldrock v R [2011] HCA 39 at [28]). However, an assessment of the objective seriousness of the offending remains an important aspect of the sentencing task. His Honour found, in effect, that the offences, whilst not falling into the worst category such as to warrant the imposition of the maximum penalty (in two instances, imprisonment for life) were nonetheless very serious. The correctness of that conclusion is beyond dispute. 52In this Court, the applicant made the extraordinary submission that the offences were less serious because they were "intermittent, being committed once a month and sometimes every couple of months". That submission must be rejected. It reflects a wholesale failure to engage with the seriousness of such repeated offending. The applicant regularly raped and debauched his daughter for more than four years from the time she was aged seven years. Unsurprisingly, medical reports tendered at the proceedings on sentence establish that she has suffered dreadfully as a result of those acts. Apart from the direct impact of the offences, she suffers ongoing guilt due to her perception that it is she who has ruined her mother's and brother's lives by speaking out about the abuse. It should go without saying that, as properly acknowledged by the applicant, all of the blame lies with him, not her. 53The maximum penalty of life imprisonment for the offence of aggravated sexual intercourse with a child under the age of 10 places two of the offences committed by the applicant in the same category of seriousness as murder, violent rape in company and dealing in large commercial quantities of prohibited drugs: cf s 19A, 61JA of the Crimes Act; s 33 of the Drug Misuse and Trafficking Act 1985. 54The starting point for the aggregate sentence of 24 years before the allowance of a discount of 25 per cent to reflect the utilitarian value of the early pleas of guilty was not excessive, in my view. 55In all the circumstances, I am not persuaded that the aggregate sentence imposed was manifestly excessive. 56The order I propose is that leave to appeal be granted but that the appeal be dismissed.