JM v R

Court of Criminal Appeal (NSW)|2014-10-21|Before: Hoeben CJ, Hulme J, Adamson J, Mr P

Solicitors: Solicitor for Public Prosecutions File Number(s): 2011/156968; 2012/199845 Decision under appeal Jurisdiction: 9101 Date of Decision: 25 January 2013 Before: Bennett SC DCJ File Number(s): 2011/156968; 2012/199845

Offences, facts and indicative sentences 5At the time of the offences, the applicant was living with his then wife (TP) and her three children, MP (a girl aged 15), LP (a girl aged 11) and BP (a boy aged 9). He and TP also had their own child, KM (a 2-year-old girl). 6Following a complaint made by LP, police executed a search warrant at the family home on 22 October 2010. They seized a camera, a laptop computer and two external hard drives and submitted them for specialist examination. This examination located a number of files that showed the commission by the applicant of a number of offences against the children. 7There were two indictments. The first contained eight counts and the second contained a single count. 8In announcing indicative sentences for each offence, as required by s 53A(2)(b) of the Crimes (Sentencing Procedure) Act, there is no requirement to specify non-parole periods unless the offence is one for which a standard non-parole period is prescribed. There is also no need to specify a date on which the indicative sentences would commence. In this case, however, the judge engaged in both of those unnecessary specifications. I will say more about this later. 9The offences were all contrary to provisions of the Crimes Act. The facts, the maximum penalties that applied, together with any relevant standard non-parole period prescribed under the Crimes (Sentencing Procedure) Act were as follows. Count 1 - Sexual intercourse with child under 10 (s 66A(2)) - maximum penalty imprisonment for life - standard non-parole period 15 years + Form 1 (5 offences) Count 2 - Use child under the age of 14 to make child abuse material (s 91G(1)(a)) - maximum penalty imprisonment for 14 years. 10There was a photograph taken at 7.59pm on 22 September 2010 showing the applicant's 2 year old daughter in the bath with his hand on her genital area parting her labia. (First Form 1 - offences 3 (Use child under 14 to make child abuse material) and 4 (aggravated indecent assault)). (Another photograph showing the same thing but taken immediately before this one constituted the offences in counts 3 and 4). 11There was a four-minute video file, the recording of which commenced five minutes later. It showed the applicant with the same daughter on a bed. She was naked and he was naked from the waist down. He approached her and performed cunnilingus for about a minute. He then lay on his back on the bed, placing her on his chest facing away from him and masturbated his penis while still performing cunnilingus upon her. At this point, the child's face was close to his exposed penis. After a short period he wiped his penis with a towel and kissed her on the lips. He then turned the camera off. 12The performance of cunnilingus upon the child constituted the offence in Count 1. Offences 1, 2 and 5 on the First Form 1 were offences arising from the same incident - Commit act of indecency upon a person under 16; Produce child abuse material; and Possess child abuse material. Indicative sentence (count 1, taking into account Form 1 offences): 13 years with non-parole period 9 years dating from 12 May 2011. Indicative sentence (count 2): 6 years 8 months with non-parole period 5 years dating from 12 May 2011. Count 3 - Film a child under the age of 16 engaged in a private act without her consent for the purpose of enabling another person to obtain sexual arousal or gratification - (s 91K(3)) - maximum penalty imprisonment for 5 years + Form 1 (3 offences) 13Police located a video file of 20 minutes duration on one of the external hard drives which showed the applicant's 11 year old stepdaughter entering the bathroom, disrobing, showering and getting dressed. (Count 3) 14There was also an 11 minute video showing his 9 year old son and a 23 minute video showing his 15 year old daughter doing the same thing on different occasions. (Second Form 1 - offences 1 and 2 (Film private act for sexual gratification)). 1543 images of naked male and female children amongst groups of naked adults were found on the laptop computer. The genitals of the children were exposed. Some of them appeared to be under the age of 10. The images were enfaced with an internet website address. (Second Form 1 - offence 3 (Possess child abuse material)). Indicative sentence: 3 years 4 months with non-parole period 2 years dating from 12 May 2019. Count 4 - Use child under the age of 14 to make child abuse material (s 91G(1)(a)) - maximum penalty imprisonment for 14 years Count 5 - Indecent assault upon child under the age of 16 whilst under authority (s 61M(2) - maximum penalty imprisonment for 10 years - standard non-parole period 8 years 16These counts concerned the second image taken at 7.59pm on 22 September 2010 of the applicant indecently assaulting his 2-year-old daughter in the bath (see above in relation to offences 3 and 4 on the Form 1 taken into account in relation to Count 1). Indicative sentence (count 4): 7 years with non-parole period 3 years dating from 12 May 2020. Indicative sentence (count 5): 6 years with non-parole period 3 years dating from 12 May 2010. Count 6 - Use child under the age of 14 to make child abuse material (s 91G(1)(a)) - maximum penalty imprisonment for 14 years Count 7 - Indecent assault upon child under the age of 16 whilst under authority (s 61M(2) - maximum penalty imprisonment for 10 years - standard non-parole period 8 years 17Police found on the laptop computer an image of a child's vagina. The applicant's wife identified the child as her 11-year-old daughter, LP. This was the subject of the complaint made by LP that led police to search the applicant's home. LP had complained that on 1 October 2010 she was in bed when the applicant came in, lifted up the bedclothes, pulled down her clothing and took a photograph of her vagina. She told police she feigned sleep whilst this occurred. Indicative sentence (count 6): 7 years with non-parole period 3 years dating from 12 May 2020. Indicative sentence (count 7): 6 years with non-parole period 3 years dating from 12 May 2020. Count 8 - Possess child abuse material (s 91H(2)) - maximum penalty imprisonment for 10 years 18On the second external hard drive police found 14 images of naked female children with their vaginas exposed. Some of the children appeared to be under the age of 10. The images were enfaced with a website address. Indicative sentence: 4 years with non-parole period 3 years dating from 12 May 2010. 2nd Indictment - Possess child abuse material (s 91H(2)) - maximum penalty imprisonment for 10 years - Form 1 (one offence) 19The applicant's wife abandoned her relationship with him following the complaint by her daughter (LP) and the execution of the search warrant on 22 October 2010. He commenced a new relationship with a woman identified as "DH" in January 2011. She visited him in custody after he was arrested on 12 May 2011 and charged with the offences described above. On one such visit, he instructed her to return his security pass to his employer and to obtain an external hard drive he had left at work. She did so in June 2011 and stored the hard drive with his other property. Sometime later she accessed the hard drive looking for some of his legal papers and found a disturbing image. The hard drive was provided to police. 20The statement of facts and the summary provided in the judge's sentencing remarks are both lengthy and detailed. Suffice to say that the hard drive contained 2801 child abuse pictures and 36 child abuse videos. They included video images of his former stepchildren naked in the bathroom. The other videos were of nudist groups depicting naked children and adults engaged in various activities. 21Police used the COPINE scale to categorise the severity of the still images. The majority of them (1592 out of 2801) were in the second lowest level. The others were at the middle to top end of the scale. At the highest level of the scale (10 images) were images of naked children aged from about 6 to 15 bound and in some cases being tortured. For example, one image showed a 12-14 year old girl with ropes binding her ankles, knees and waist with her hands bound above her head while a naked 13 to 15 year old boy held a pistol to the girl's abdomen. 22There were 75 images in the next highest category. They included adults engaged in sexual intercourse with children as young as 5. The summary in the statement of facts includes reference to children being in visible pain. 23The Form 1 offence was one that was contrary to s 91K(3) and involved the filming of the applicant's 15 year old former stepdaughter naked in the bathroom. Indicative sentence: 6 years with non-parole period 1 year dating from 12 May 2013.

The course of proceedings in the District Court 24The applicant was arrested on 12 May 2011 and remained in custody thereafter. He was committed to the District Court for trial on 16 November 2011. He came before Bennett DCJ on 27 February 2012 for trial. His counsel indicated that the trial would be ready to begin the following day. At 2.00pm on 28 February, the applicant entered pleas of guilty. At some point in the intervening period, his counsel had taken the opportunity to view the images that were at the core of the prosecution case. 25There was then a delay in the proceedings on sentence until 25 October 2012. The main reason for the delay was the further investigation of the material that had been found on the hard drive retrieved from the applicant's work place. He was charged with further offences at some point in August-September 2012. He pleaded guilty and was committed for sentence on 12 September 2012. When he appeared before Bennett DCJ on 25 October, the applicant was arraigned upon the second indictment containing one of the charges and asked that the other charge be taken into account. (It had been placed on a Form 1 document.) 26Notwithstanding the differences in the timing of the pleas (most being on the trial date but the latter being found to have been "at the first opportunity"), the judge allowed a discount for the utilitarian value of them all at "somewhere between ten and fifteen per cent". More will be said about this when dealing with the grounds of appeal.

The applicant's personal circumstances 27The judge noted that the applicant was born in 1969 and had no relevant criminal history. 28His Honour recounted some of the content of a letter written by the applicant. It included that in 2009 he had become "curious in the transition of young girls to womanhood" and that it was for this reason he had installed a camera in the bathroom to film the children. He said that he knew this was wrong, repulsive and sickening but he "could not resist the temptation of watching the children blossom to womanhood". He acknowledged that his activities extended to downloading images of young girls "at the cusp of womanhood" and then to "the ultimate revolting act that can be committed on a child, the act of sexual assault". He claimed that it was not the sexual act that excited him but the fact that the act itself was being filmed. 29The applicant also wrote that he was grateful that the police had stopped him: "as I truly want to rid myself of the hideous urge to violate children". He concluded the letter with an apology to the children's mother. 30A report by Dr Stephen Allnutt, forensic psychiatrist, was before the judge. It included an account of the applicant's history, none of which is presently relevant except that he claimed to have been undergoing a degree of stress and anxiety arising from Family Court proceedings with his ex-partner in Victoria. There were custody and access issues and he was the subject of what he claimed were unfounded allegations of sexual misconduct. The judge noted Dr Allnutt's opinion that "the reasons behind the offending behaviour were the external stressors, including the custody battles with his ex-wife, his knowledge that she was unfaithful to him and depressive symptoms including reduced self-esteem and loss of interest in activities". His Honour also noted the doctor's opinion that the applicant had reasonable prospects of rehabilitation. 31Dr Allnutt's report included that aside from some depressive symptoms there were no mental health or drug and alcohol issues that were relevant to the offending. 32The judge took into account in the applicant's favour that he had no prior convictions; he was otherwise of good character, albeit that was of limited significance when there were serious offences that were not isolated or spontaneous (ROS 30). 33Consideration was given to the question whether there were special circumstances warranting a reduction of the proportion of the sentence represented by the non-parole component. In the end, the judge decided that the usual proportions would provide a sufficient period for supervised release on parole.

Aggregate sentencing 34This case raises a number of issues about aggregate sentencing and so it is appropriate to say something about the concept generally before turning to more detail about the case and the grounds of appeal. 35Provision is made in s 53A of the Crimes (Sentencing Procedure) Act for the imposition of an aggregate sentence. It was inserted by the Crimes (Sentencing Procedure) Amendment Act 2010 (NSW) and came into force on 14 March 2011. The provision applies to the determination of a sentence for an offence whenever committed unless prior to that date the offender was convicted, or a court had accepted a plea of guilty and the plea has not been withdrawn: Sch 2 Pt 21 Crimes (Sentencing Procedure) Act. 36The section provides as follows: 53A Aggregate sentences of imprisonment (1) A court may, in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each. (2) A court that imposes an aggregate sentence of imprisonment under this section on an offender must indicate to the offender, and make a written record of, the following: (a) the fact that an aggregate sentence is being imposed, (b) the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence. (3) Subsection (2) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions. (4) The term, and any non-parole period, set under this Division in relation to an aggregate sentence of imprisonment is not revoked or varied by a later sentence of imprisonment that the same or some other court subsequently imposes in relation to another offence. (5) An aggregate sentence of imprisonment is not invalidated by a failure to comply with this section. 37Section 44 provides (in sub-s (2C)) that there is no need to indicate the non-parole period that would have been imposed for each offence had separate sentences been imposed unless it is required by s 54B. 38Section 54B provides, in part, that in determining an aggregate sentence, the court is to make a written record of the non-parole period it would have set for each offence to which a standard non-parole period applies (s 54B(4)). Reasons must also be provided by way of a written record why the court would have set a non-parole period that is longer or shorter than the standard non-parole period (s 54B(5)). An offence to which the standard non-parole period applies is one that is listed in the Table in Pt 4 Div 4 and is in the middle of the range of seriousness when assessed by taking into account only the objective factors affecting its relative seriousness (s 54A(2)). It should be noted, however, that the court is not required to identify the extent to which the seriousness of the offence differs from "an offence to which the standard non-parole period is referable" (s 54B(6)). 39A number of propositions emerge from the above legislative provisions and the cases that have considered aggregate sentencing:

Section 53A was introduced in order to ameliorate the difficulties of applying the decision in Pearce v The Queen [1998] HCA 57; 194 CLR 610 in sentencing for multiple offences: R v Nykolyn [2012] NSWCCA 219 at [31]. It offers the benefit when sentencing for multiple offences of obviating the need to engage in the laborious and sometimes complicated task of creating a "cascading or 'stairway' sentencing structure" when the principle of totality requires some accumulation of sentences: R v Rae [2013] NSWCCA 9 at [43]; Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 at [231]; Behman v R [2014] NSWCCA 239; R v MJB [2014] NSWCCA 195 at [55]-[57].
When imposing an aggregate sentence a court is required to indicate to the offender and make a written record of the fact that an aggregate sentence is being imposed and also indicate the sentences that would have been imposed if separate sentences had been imposed instead (the indicative sentences): s 53A(2). The indicative sentences themselves should not be expressed as a separate sentencing order: R v Clarke [2013] NSWCCA 260 at [50]-[52]. See also Cullen v R [2014] NSWCCA 162 at [25]-[40].
The indicative sentences must be assessed by taking into account such matters in Part 3 or elsewhere in the Crimes (Sentencing Procedure) Act as are relevant: s 53A(2)(b). There is no need to list such matters exhaustively, but commonly encountered ones in Part 3 include aggravating, mitigating and other factors (s 21A); reductions for guilty pleas, facilitation of the administration of justice and assistance to law enforcement authorities (ss 22, 22A and 23); and offences on a Form1 taken into account (Pt 3 Div 3). Commonly encountered matters elsewhere in the Act are the purposes of sentencing in s 3A, and the requirements of s 5 as to not imposing a sentence of imprisonment unless a court is satisfied that there is no alternative and giving a further explanation for the imposition of any sentence of 6 months or less. SHR v R [2014] NSWCCA 94 is an example of a case where a sentencing judge took pleas of guilty into account only in relation to the aggregate sentence, and not in relation to the indicative sentence. This was held (at [35]-[43]) to be in breach of the requirement in s 53A(2)(b). Khawaja v R [2014] NSWCCA 80 is another example. Martin v R [2014] NSWCCA 124 is a case in which a sentencing judge was held (at [17]) to have correctly taken into account pleas of guilty in relation to the indicative sentences. In JL v R [2014] NSWCCA 130 at [54] it was said by way of conclusion in an appeal against the asserted severity of a sentence that "The 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". This must be understood as a broad assessment within the conclusion rather than indicating that it is the aggregate sentence to which the discount should be applied. Stoeski v R [2014] NSWCCA 161 is anomalous in that at [33]-[34] it rejected a complaint that the sentencing judge had not discounted the aggregate sentence for the plea of guilty rather than rejecting the assertion that the discount applied to the aggregate sentence at all.

Grounds of appeal 41The applicant filed a document headed "Grounds of Appeal" which set out six numbered grounds of appeal and what appeared to be a complaint about his former legal representatives. However, he confirmed at the hearing of the appeal that the latter was intended as a ground of appeal as well. It was expressed as follows: It is alleged that defence counsel and the appellant's legal representatives breached the legal Professionals Act by not taking their clients instructions. The appellant seeks to present further evidence in support of this appeal. 42The applicant sought to make three points: 1. Counsel and her instructing solicitor did not take "explicit instructions" from the applicant during the course of the sentencing proceedings. In particular, counsel ignored his instructions to challenge the victim impact statement, "along with other instructions". 2. The solicitors "waived the applicant's rights to a committal hearing"; meaning that he wanted to plead guilty in the Local Court and be committed for sentence but was denied the opportunity to obtain the benefit of doing so. 3. Fresh evidence would be led on the hearing of the application arising from the incompetence of counsel and his solicitors. No challenge to victim impact statement 43The applicant has not made good any assertion that the sentencing proceedings miscarried because of a failure of his legal representatives to "challenge" the victim impact statement made by the mother of the complainants on their behalf. The judge referred to the content of this statement (at some length) but concluded that it did not describe harm caused to either complainant that was more than would ordinarily be encountered in relation to such offences. He concluded, "I am unable to find that the behaviour described reflects substantial psychological harm from these crimes such as to extend to be an aggravating factor" (ROS 25). So, the victim impact statement was not taken into account in a way that was detrimental to the applicant. He has no cause for complaint. Lost opportunity to enter pleas of guilty in the Local Court 44The applicant said that he had spoken to his solicitors whilst proceedings were still in the Local Court and indicated that he wanted to plead guilty. Contrary to his wishes, however, he was committed for trial. 45The applicant provided documents relating to a complaint he had made to the Legal Services Commissioner about this issue. But they did not assist his cause because they simply showed that the Commissioner had investigated and had dismissed the allegation. 46A further matter standing in the applicant's way in relation to this issue was that after the proceedings were committed to the District Court he elected to be tried by judge-alone. It is untenable to suggest that he would have made such an election, after having received advice from his lawyers, if he wanted to plead guilty. Incompetence of legal representatives 47General assertions were made by the applicant about what he described as the incompetence of his counsel and solicitors. Nothing specific was raised that had any relevance to the conduct of the sentence proceedings or conceivable bearing upon the sentence imposed. Conclusion 48I would reject this unnumbered ground.

Ground 1 - The sentencing judge erred by reducing the discount for the sequence two offences below twenty five per cent. 49This ground is concerned with the two charges the subject of the committal for sentence in September 2012 which came to be set out in the second indictment and accompanying Form 1. The judge discussed, at length, the procedural history that I have set out earlier. He concluded: "The offences across the spectrum are serious. The misconduct, upon which this offender engaged, taking his sexual pleasure at the expense of small children, is so serious that there is a need to provide adequate protection to the community. This impacts upon the extent to which he is entitled to a discount in respect of the further offence upon which sentence is to be imposed, taking into account the additional offence which, to his advantage, has been placed on a Form 1. Accordingly the discount to be applied to the sentence to be imposed in respect of that offence will not extend to twenty-five per cent. It will sit somewhere between ten and fifteen per cent." 50The judge appears to have overlooked what he had said during the proceedings on sentence: "HIS HONOUR: Just before we go to that, just in terms of utility, it would seem to me that his discount in respect of all matters but for the most recent, is compromised to somewhere below the 25% mark. [CROWN]: That's so your Honour. HIS HONOUR: In respect of this most recent matter that's on a further indictment that he would-- [CROWN]: Receive the full discount your Honour. HIS HONOUR: Yes." 51It would seem that the judge had regard to the criminality involved in all of the other offences in assessing the utilitarian value of the applicant's plea of guilty to the offence on the second indictment. Where there are multiple offences and pleas at different times, the utilitarian value of the plea should be separately considered for each: R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 at [32] citing R v SY [2003] NSWCCA 291, presumably at [86]. There was significant utilitarian value in the applicant's very early acknowledgment of his guilt of the second indictment offence (and the offence on the Form 1), given that it came very soon after he was charged. 52I also do not understand the reference to the protection of the community in this context. Sometimes there will be an offence in relation to which community protection will weigh against affording an offender what might otherwise have been allowed by way of reduction because of a plea of guilty. But this was not such an extreme or unusual case: cf Milat v R; Klein v R [2014] NSWCCA 29 at [69]-[92]. 53The judge also referred to "the additional offence which, to his advantage, has been placed on a Form 1" (emphasis added). He had earlier quoted all of the "principles of general application" on this subject set out by Howie J in R v Borkowski at [32], the ninth of which was: "The utilitarian value of a delayed plea is less and consequently the discount is reduced even where there has been a plea bargain or where the offender is waiting to see what charges are ultimately brought by the Crown or the offender has delayed the plea to obtain some forensic advantage, such as having matters put on a Form 1." (Citation of authority omitted) 54If the judge intended by the reference to the placing of the additional offence on the Form 1 being to the applicant's advantage as somehow eroding the utilitarian value, he had overlooked the fact that the applicant had pleaded guilty to that offence in the Local Court. There was no delay resulting from a plea bargain that lessened the utilitarian value. 55There is no rule or entitlement about the extent by which a sentence should be reduced on account of the utilitarian value of a plea of guilty. But there is a usual practice that early pleas of guilty are rewarded with something at or close to the top of the range suggested in the guideline judgment of R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383. There is also an expectation that if a judge is minded to take a different approach in a particular case there will be an explanation for doing so. In this case, the explanation is, with respect, erroneous. 56I would uphold the applicant's complaint in relation to this issue. However, the applicant must be taken to be seeking leave to appeal against the aggregate sentence, not against the indicative sentences. 57Not "all errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion": Kentwell v The Queen [2014] HCA 37 at [42]. The total of the indicative sentences is a period of 59 years. If the judge had indicated a sentence for the latter with the full discount of 25 per cent instead of "somewhere between ten and fifteen percent (say 12.5 per cent), the total would be one of (in round figures) 58 years. In the application of the principle of totality, it is inconceivable that the aggregate sentence would have been any different if a correct approach had been taken in assessing the value of the applicant's plea to the second indictment offence. 58I would not uphold this ground.

Ground 2 - The sentencing judge erred by failing to state precisely the amount of the discount he gave for the sequence one offences 59By "the sequence one offences", the applicant was referring to the offences on the first indictment containing eight counts. 60The judge assessed the discount to be allowed for the utilitarian value of the pleas to these offences thus: "There was delay in the pleas of guilty to the charges upon which the offender was ultimately arraigned. That does not allow for a discount beyond somewhere between ten per cent and fifteen per cent of what would otherwise be appropriate sentences for those offences. The offender was listed for trial before me, and a jury to be selected in the Court at Goulburn. His position did not change until his counsel, with the benefit of having viewed the abhorrent material that would have been presented in the Crown case, had further opportunity to consult with him, whereupon he wisely took her advice and chose a difference course." 61The judge did not have to quantify the extent to which he was allowing a discount with absolute precision: Ayache v R [2013] NSWCCA 41 at [14]-[18]. The applicant's counsel accepted the judge's indication during the proceedings on sentence that the discount for these offences would be between 10 and 15 per cent (POS 17-18). 62In any event, the applicant can have no legitimate complaint about not receiving a discount of any more than 10 per cent, given that the pleas were entered the day after the day fixed for his trial. 63There is no merit in this ground.

Ground 3 - The sentencing judge erred in staggering the accumulation of the sentences to largely increase the non-parole period and the head sentence 64The applicant submitted that all of the offences arose out of the one criminal enterprise in that they were linked in time and place. Accordingly, the sentences should have been concurrent or, at worst, partially accumulated to a small degree. 65Other submissions made by the applicant were concerned with the actual degree of accumulation of the sentences that were apparent from the commencement dates (unnecessarily) specified by the judge in respect of the indicative sentences. Those submissions may be put to one side. 66The real issue is whether the applicant has demonstrated that the aggregate sentence imposed is excessive having regard to the totality of criminality inherent in the various offences together with any necessary increment where Form 1 offences were required to be taken into account. That matter falls for assessment under the final ground. 67Ground 3 must be rejected.

Ground 4 - The sentencing judge erred in increasing the overall sentence in respect of sequence 2 in order to achieve an appropriate ratio between the non-parole and head sentence 68This is another ground that arises only because of the unnecessary specification by the judge of commencement dates for the indicative sentences. 69In determining whether the applicant can demonstrate that the aggregate sentence is excessive, it may be of some utility to examine the length of the indicative sentences. Accordingly, the complaint raised under this ground is also one that falls for consideration under the final ground. 70Ground 4 fails.

Ground 5 - The sentencing judge erred in declining to take into account that the offender would be likely to serve most of his sentence in protective custody 71The submissions for the applicant cited authorities on the subject of protective custody (for example, R v Burchell (1987) 34 A Crim R 148 and later cases that refer to it) that predate current jurisprudence. It used to be thought that serving a sentence in protective custody always warranted some reduction in sentence. However, in Clinton v R [2009] NSWCCA 276, Howie J said: [24] ... decisions about the significance of protective custody given before R v Durocher-Yvon [2003] NSWCCA 299; 58 NSWLR 581 should be read in the light of that decision and the different approach that was there taken to the relevance of the fact that a person was in protective custody. The change to the approach previously taken was as a result of information provided to the Court that revealed that protection did not necessarily result in harsher prison conditions. The change in approach was continued in R v Mostyn [2004] NSWCCA 97; 145 A Crim R 304, was approved in R v Way [2004] NSWCCA 131; 60 NSWLR 168 at [177] and has been applied to cases where assistance has been given to authorities: R v Sukkar [2006] NSWCCA 92. 72The applicant's general proposition that service of his sentence in protective custody warranted a lesser sentence must be rejected. 73The applicant went further and sought to rely upon evidence of the following matters:

He has not been able to continue tertiary studies in law.
He has been denied access to computers and to print legal documents.
His application to work in the laundry or in textiles, in preference to working on ground maintenance has been denied.
He cannot see his children and other family members because they live interstate. 74The first matter arose, inter alia, because of the need for Corrective Services to prioritise the provision of educational opportunities to inmates based on need. The second matter is inconsistent with the voluminous word-processed and printed documents placed before the Court for the purpose of this application. The third matter is trivial. The fourth matter is simply a happenstance. And none of the matters has anything to do with the applicant being in protective custody. 75There is no merit in this ground.

Ground 6 - The sentences and the totality of the sentence are manifestly excessive. In determining the sentences to be imposed, the sentencing judge made the following errors:

(i) The sentencing judge erred in failing to determine the level of objective criminality in the offences.

(ii) The sentencing judge erred in treating the applicant's previous good character as irrelevant.

(iii) The sentencing term imposed for the individual offences are manifestly excessive as the starting point is too high and insufficient regard was had to all relevant and mitigating factors.

(iv) The overall sentence is manifestly excessive. (i) Failing to determine the level of objective criminality 76As to 6(i), the sentencing judge did make findings as to the objective seriousness of the offences. In relation to the most serious offence (Count 1), the judge said that he had viewed the video recording. He gave an oral description of what it showed which does not bear repeating except in one respect: "The summary of facts does not include features of the child's responses to the offender. There was no sign of resistance from her. She was completely compliant and there did not appear to be any instruction given to her. She was responsive to the offender in her position on the bed as he came to her in the first sequence and as he lifted her on top of him and continued with her face proximate to his penis, which he masturbated to the point of ejaculation. This I infer from his use of the towel to wipe his penis. When he finished with the child she sat of the bed and put about her a robe partially covering her young body as the offender kissed her lips, to which she responded. It is my perception that she contemporaneously kissed him in return. Her responsive presentation was as a mature woman in an act of consensual love making with further affection after the coupling. She was as if an adult as she placed the robe about herself and responded to his kiss. To see a child of such tender years behave so with this man leaves me with no conclusion other than that her relationship with her father had been sexualised to the point where she was a responsive participant in this sexual encounter. It is of course not possible to say how the offender groomed her to this point, or over what time, or the number of occasions that might have preceded this. I am satisfied beyond any doubt however that this was not an aberrant or isolated event with this child. I have not put aside the submission of counsel that I should not allow the images presented to the Court, as offensive as they are to accepted standards of decency, to enlarge the objective seriousness of this offence. I have taken care to avoid that error, I believe. Moreover, I do not intend to punish the offender for conduct for which there is no charge before this Court or increase the punishment for these offences because of the certainty that his crimes against this child preceded this event. However, it is appropriate not to overlook that the misconduct charged was not an aberrant or isolated episode in an otherwise healthy and appropriate relationship between a father and his two year old daughter when assessing the gravity of this crime." (ROS 14-15) 77The applicant claimed that the offence was at a lower level of seriousness because of the nature of the activity and because there was an absence of threats or pressure to secure the complainant's compliance or to ensure her subsequent silence. He also relied upon the absence of evidence of physical injuries. 78The applicant also referred to other cases decided in this Court in support of his claim that the objective seriousness of the offences were at a lower level. Most of the cases concerned victims who were aged between 6 and 9; one case involved a victim aged 4. The sexual activity and the relationship between the offender and the victim varied widely. They do not, in my view, support a submission that the assessment of seriousness in the present case was not one that was open to be made. 79Towards the end of his remarks on sentence the judge said this about the objective seriousness of the offences: "These offences overall must in combination be viewed as of the utmost seriousness. Children are entitled to be protected from sexual predators such as this man. The most serious of the offences of course is the first count in the indictment, the allegation of sexual intercourse with KM. The significance of that misconduct is reflected in the maximum penalty specified, imprisonment for life and a standard non-parole period of fifteen years. As serious as this offence is, it is not a worst case example. I have not overlooked that the child was two years of age at the time and I have not overlooked that the commission of that offence included not only sexual gratification but also the production of child abuse material in its execution. There is no evidence before me of any physical injuries suffered by KM and no evidence of any penetration beyond that which might have occurred in the performance of the cunnilingus. It is, in my judgment, an [offence] that falls at or perhaps slightly above the middle range of objective seriousness. So too with regard to the other offence for which there is a standard non-parole period specified." (ROS 31) 80I consider that it was well open to the judge to find that the applicant's sexual assault of his two-year-old daughter was "at or perhaps slightly above the middle of the range of objective seriousness". The matters to which the applicant directed attention might possibly have called for an assessment at a lower level if the child was significantly older. The abuse of a two-year-old child by a father in the context of the relationship having been "sexualised" as the judge found renders such matters of little significance. (ii) Treating previous good character as irrelevant 81The sentencing judge said the following about the applicant's otherwise good character: "He has the benefit of not having any prior convictions relevant to the matter. There is no material to suggest that outside of this offending he is a person of otherwise poor character, but in any event, that is of limited significance in this case. Indeed, in this regard exploitation of the opportunity presented is a matter to be brought to account. A significance of good character such as one find is ameliorated by the serious nature of the offences, which were not isolated or spontaneous." (ROS 30) 82The applicant referred to Ryan v The Queen [2001] HCA 21; 206 CLR 267 where McHugh J explained the significance in sentencing of an offender's prior good character (at [23],[25]): "It is necessary to distinguish between the two logically distinct stages concerning the use of character in the sentencing process. First, it is necessary to determine whether the offender is of otherwise good character. When considering this issue, the sentencing judge must not consider the offences for which the prisoner is being sentenced. Because that is so, many sentencing judges refer to the offender's "previous" or "otherwise" good character. ... Second, if the offender is of otherwise good character, it is necessary to determine the weight that must be given to that mitigating factor. If an offender is of otherwise good character, then the sentencing judge is bound to take that into account in the sentence that he or she imposes. The weight that must be given to the prisoner's otherwise good character will vary according to all of the circumstances." 83The approach taken by the sentencing judge was precisely that of which McHugh J spoke. His Honour made the finding that the applicant was of otherwise good character. He then gave it the weight he thought it deserved in the circumstances of the case. This was a matter within the exercise of his discretion. He was not compelled to find that good character should be given "significant weight" as the applicant asserts. 84The applicant also challenged the judge's finding in this context that the offences "were not isolated or spontaneous". He referred specifically to the judge's observations about the reactions of the applicant's two-year-old daughter that I have quoted above (at [76]). Those observations were made in the light of the judge having viewed the recording of the incident. It has not been established that they were not open to be made. Generally, it was also open to the judge to find that the offences were not isolated or spontaneous. To set about filming children and to amass a collection of child abuse material cannot be regarded as conduct that occurred spontaneously. Further, in the context of the range of offending, none of the offences were isolated aberrations of conduct. (iii) The individual sentences are manifestly excessive and did not give sufficient weight to mitigating factors 85There is no utility in determining this sub-ground. The appeal is against the aggregate sentence. The applicant's contentions should be considered in that context. (iv) The overall sentence is manifestly excessive 86The applicant asserted that a survey of other cases as well as sentencing statistics demonstrated that the indicative sentence for the s 66A offence concerning his two-year-old daughter was excessive. The submissions failed to address the fact that there were additional offences that he asked the judge to take into account when assessing the sentence for that offence. 87It was contended that the implicit starting points for indicative sentences relating to the offences of using a child under the age of 14 to make child abuse material (counts 2, 4 and 6) were consistent with a finding that they were each "well above the middle of the range" of objective seriousness. He submitted that such an assessment was not warranted. The same submission was made in respect of the offence of filming a person under the age of 16 in a private act (count 3). It was contended that there should have been a finding that it was "in the lower range of objective seriousness" because it did not involve filming a person engaged in a sexual act; the child was showering in the bathroom. 88The offences of aggravated indecent assault of a person under 16 (counts 5 and 7) were also said to involve implicit starting points for the indicative sentences that indicated an erroneous assessment of objective serious "in the high range". The submissions referred to the maximum penalty for these offences being 10 years but no reference was made to the existence of a standard non-parole period of 8 years. It was asserted that sentencing statistics (presumably those maintained by the Judicial Commission) show a sentencing range for this offence of between 2 and 4 years, whereas the sentences indicated for these counts were each 6 years. (In fact, the current iteration of the Judicial Commission's statistics for offences against s 61M(2) (as at October 2014 for offences committed January 2009 to March 2014) shows that 80 per cent of sentences fell within a range of 2 years to 6 years.) The applicant also cited three cases in which lesser sentences had been imposed for this type of offence. 89In relation to offences of possessing child abuse material it was submitted that for count 8 of the first indictment the material comprised 14 images of a "nudist colony". That is not correct. The facts in relation to count 8 indicated that it related to 14 images of naked female children, some under the age of 10, with their vaginas exposed. It was also submitted that the offence in count 8 and that which comprised the sole count in the second indictment occurred at the same time, had features in common, and formed part of the one criminal enterprise and so should have resulted in concurrent sentences. That, of course, relies upon the unnecessary specification by the judge of commencement dates for indicative sentences. It is a submission, however, that is relevant to whether the aggregate sentence resulted from an erroneous application of the principle of totality. 90A submission expressed as being "in the alternative" was that the implicit starting point for the indicative sentence for count 8 indicates that, although unstated, there must have been an assessment of that offence as being in the middle of the range of objective seriousness. Given the number and nature of the images, it should have been an assessment of "low range". The implicit starting point for the offence in the second indictment indicates that, although unstated, there must have been an assessment of it being in the "high range of objective seriousness". Statistics and reference to other cases were said to support the proposition that the indicative sentences for these offences were excessive. 91A further submission in relation to the sentence for the offence in the second indictment was that the judge must have impermissibly extended the parole period so as to provide for a sufficient period of parole in the aggregate sentence. That, of course, relies upon the unnecessary specification by the judge of a commencement date and a non-parole period for an indicative sentence. 92Submissions directed to the aggregate sentence included that there was an implicit starting point of 20 to 21 years before allowance for the pleas of guilty. The submission ignores the fact that discounts must be directly applied to the assessment of indicative sentences, with care taken to ensure that in assessing the aggregate sentence there is no erosion of the benefit. 93It was also submitted that the judge failed to give appropriate weight to the asserted fact that the injury and emotional harm caused by the s 66A offence in count 1 was not substantial. The applicant relied upon the judge's finding that he could not conclude beyond reasonable doubt that it was substantial. That does not necessarily support a finding on the balance of probability that such harm was not substantial. 94Another submission was that the judge failed to give sufficient weight to the applicant's lack of any significant record of previous convictions. However, the judge specifically noted this and I would not infer that he gave it less weight than it deserved. It was the allied factor of prior good character that he found to be of reduced significance. 95An argument was advanced that there should have been a finding of special circumstances on the basis of the applicant's lack of previous convictions. But the judge specifically addressed the issue of special circumstances and found that the parole period within the aggregate sentence would be sufficient to assist the applicant's reintegration into the community. That was a discretionary conclusion that was open to him. 96It was submitted that there should have been findings of good prospects of rehabilitation and unlikelihood of reoffending. However, the evidence comprised the following somewhat guarded assessment of Dr Allnutt: "He presents as an individual who has reasonable prospects for rehabilitation in that he has cognitive ability and is motivated to pursue treatment; at this stage however I believe his insight is limited but he presents as an individual who could develop insight in the context of a rehabilitation program." 97On this basis, findings in the applicant's favour were not mandated. In any event, the opinions expressed by Dr Allnutt were undoubtedly based upon the history provided. The judge rejected the explanations the applicant gave to the doctor for having committed the offences. 98Finally it was submitted that the judge had failed to have regard to the principle of totality in his assessment of the aggregate sentence: "it appears in this case the sentencing judge simply added up the sentences and passed sentence which the arithmetic produced". The problem with that assertion is that if his Honour had proceeded in that fashion the aggregate sentence would have been one of 59 years. 99The applicant then sought to draw comparisons with other cases involving multiple child sexual assault offences, some including child pornography offences. The wide variety of circumstances of such multiple offending render such comparisons of no utility. 100Other submissions made in support of this sub-ground were repetitious of those made in the context of other grounds and need not be repeated. Conclusion 101The endeavour to draw comparisons with statistics and other cases carries the applicant's argument nowhere. The circumstances of cases such as these vary widely and call for individual discernment with the application of general sentencing principles. 102I am of the view that the sentencing judge's assessment of the first offence (the offence against s 66A) that the objective seriousness was at or slightly above the middle of the range of objective seriousness was well open to him and cannot be impugned. Having regard to the statutory guideposts of a maximum penalty of life imprisonment and a standard non-parole period of 15 years, the indicative sentence of 13 years with a non-parole period of 9 years was also an assessment that was well open to him. 103In addition to that offence there was a wide range of serious criminal conduct involving multiple victims (including in relation to the child abuse material offences a great many unknown victims) to be factored into the assessment of the aggregate sentence. For all of that additional criminality the applicant received a sentence that is but 5 years longer than that which was assessed for the first offence. It is clear that this was a result of the judge applying the principle of totality. 104In my view, the aggregate sentence was an appropriate reflection of the applicant's diverse and serious criminal conduct. To impose anything less would be to put at risk the longstanding policy of the courts of treating sexual offences committed against young children as being of the utmost seriousness: see, for example, R v Fisher (1989) 40 A Crim R 442 at 445; R v Evans (Court of Criminal Appeal (NSW), 24 March 1988, unrep); R v ABS [2005] NSWCCA 255 at [26]. Sheller JA observed in R v BJW [2000] NSWCCA 60 ; 112 A Crim R 1 at [20]: "The maximum penalties the legislature has set for such offences reflect community abhorrence of and concern about adult sexual abuse of children. General deterrence is of great importance in sentencing such offenders and especially so when the offender is in a position of trust to the victim. See the remarks of Kirby ACJ in R v Skinner (1994) 72 A Crim R 151 at 154. In R v Hudson (unreported) CCA, 30 July 1998 at 3 Sully and Ireland JJ with whom Spigelman CJ agreed, said: 'Recognition is also given to the fact that children in a family situation are virtually helpless against sexual attack by the male parent and that children have a right to be protected from sexual molestation within the family and that this can only be achieved by the courts imposing sentences of a salutary nature.'" 105It is unfortunate that the sentencing judge took such a detailed yet unnecessary approach to the specification of the indicative sentences and delivered quite discursive sentencing remarks. It has given rise to a number of arguments advanced by the applicant, many of which are irrelevant to the critical issue of whether the aggregate sentence is manifestly excessive. In the end it is my view that the aggregate sentence was within the legitimate exercise of the judge's sentencing discretion.

Orders 106I propose the following orders:

Leave to appeal granted.
Appeal dismissed. 107ADAMSON J: I agree with R A Hulme J.

Amendments 11 January 2016 - [39] paragraph reference amended 22 January 2021 - [40] Typographical error DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 January 2021

Crimes (Sentencing Procedure) Amendment Act 2010(NSW)

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