JRM v R

Judgment 1HOEBEN JA: I agree with RS Hulme J and the orders which he proposes. 2RS HULME J: On 15 October 2010, this Applicant for leave to appeal was sentenced by Garling DCJ in respect of a number of offences. In summary, the offences, the statutory provision relating to them and the maximum penalties provided are as follows:- 1.Having sexual intercourse with a child under the age of 10 years and under his authority - Crimes Act 1900 - s 66A(2) - life imprisonment. 2.Having sexual intercourse with a child under the age of 10 years and under his authority - Crimes Act 1900 - s 66A(2) - life imprisonment. 3.Possessing child abuse material - Crimes Act 1900 - s 91H(2) - 10 years. 4.Using a carriage service in a way that reasonable persons would regard as offensive - Commonwealth Criminal Code 1995 - s 474.17. 5.Using a child then under 14 for pornographic purposes - Crimes Act 1900 - s 91G - 14 years. 3The first two offences have, pursuant to the provisions of s 54A et seq of the Crimes (Sentencing Procedure) Act 1999 a standard non-parole period of 15 years. 4The child involved, then aged 9, was the son of the Applicant and his wife, who was a co-offender in the case of the offence the subject of the fifth count and the third offence on the Form 1. The victim had resided with his parents since birth. The authorities first became aware of problems when the child commenced exhibiting unusual and inappropriate sexual conduct at school. 5The Applicant and his wife seem to have had an open attitude towards nudity. One of his remarks to police officers was, "I understand that you think we are wrong, but we think the human body is art and to be admired". He also made the point that no violence or pain had been inflicted, observing also that we are a "very touchy feely family". It is clear also from the Facts Summary tendered before Garling DCJ that at least the first 4 charges were but representative of a course of conduct engaged in over a substantial period. 6From time to time, an online chat programme was used and activities photographed by video camera and broadcast on that chat programme. Sometimes similar activities of others were watched by a similar method. 7The circumstances of the first offence were that the Applicant and his son were on the Applicant's bed before school one morning watching television. The child was in a nightie and the Applicant was nude. The Applicant felt the child's penis and then commenced to suck it. Before the child when to school, the Applicant told him, "Don't you tell anyone about this". 8The second charge arises from remarks of the Applicant during a police interview in which he acknowledged allowing the complainant to suck his penis. He told police words to the effect, "It's just a quick suck, he doesn't stay there because he's too young to sort of know to do any different. It's just in the art of bonding with your child". Asked whether that resulted in the Applicant having an erection, the Applicant said words to the effect, "Probably started to, it wouldn't have been a full one 'cause he's not there long enough to make it full". 9The third count arose in consequence of the police finding images on the Applicant's computer. One included an unknown blonde female child of about 8 being both anally and vaginally sexually assaulted by an adult male, the child appearing to be clearly distressed, crying and wearing a black dog collar with silver coloured studs. Also depicted was a young female child naked with legs apart while an adult female performed cunnilingus upon her. 10Asked if there was any material showing the complainant in sexually explicit positions, the Applicant said:- There shouldn't be. I can't recall taking any. Maybe just one, a picture of him and I playing on a bed both with a hard on as it was just something that happened. Very funny. 11The Applicant also admitted that he probably had more than 100 photographs and had been receiving child pornography on his computer for a couple of years. Asked whether there were any images of children performing sexual acts upon adults, the Applicant replied:- Yes, there will be, yes - if it's been forced sex I don't like it, but if it's a normal thing that happens and - the children are consenting to this, well why not. 12The fourth count also arose in consequence of what was recorded on the computer. The Applicant and another male had communicated via Yahoo Messenger on 53 separate days. On each occasion, the two males were nude and masturbating and on some occasions the Applicant and his wife were fondling each other. The conversation which was recorded on many these occasions was of a sexually explicit nature. 13The fifth count arose out of an occasion when the complainant and his mother were lying on the bed in the early morning watching a DVD movie "Harry Potter and the Chamber of Secrets". The Applicant entered the room carrying a web cam and said to his wife, "Suck (the complainant's) dick to show them that you can play too". The Applicant's wife rolled over towards the complainant and sucked his penis. Asked about this incident, the Applicant said:- We talk to a lot of nudists from around the world and you like to cam with other families and I'm sure if he is sitting beside me and we are camming with another family, he has been there with me. We are just proving to people that we are real. 14Three offences on a Form 1 were also taken into account. The first two of these were of committing an act of indecency towards the complainant, a child then under 10, an offence under the Crimes Act, s 61O(2). The third was an aggravated indecent assault, an offence under s 61M(2). The first offence was constituted by the Applicant's wife massaging the Applicant's penis to ejaculation in the presence of the complainant. The second consisted of the Applicant massaging the complainant. Asked whether the massage involved sexual contact, the Applicant replied to the effect:- Of course, you are going to rub the genital area, aren't you? It might happen once every three weeks, it might happen once every couple of days, it might not happen for a long while ... he likes to have his penis rubbed a little bit ... he's obviously going to get hard very quickly, even for a 9 year old. 15The third offence on the Form 1 was evidenced by a video recording of the Applicant's wife fellating him in the presence of the complainant sitting less than a metre away and watching. 16After allowing a discount of 25% for the Applicant's plea, the sentences imposed were as follows:- Count 1: Imprisonment for 10 years including a non-parole period of 7 years, both such periods commencing on 16 November 2011. Count 2: Imprisonment for 8 years including a non-parole period of 6 years, both such periods commencing on 16 November 2011. Count 3: Imprisonment for 3 years including a non-parole period of 1 year, both such periods commencing on 16 November 2010. Count 4: Imprisonment for a fixed term of 1 year commencing on 16 November 2010. Count 5: Imprisonment for 3 years including a non-parole period of 1 year commencing on 16 November 2009 17The effective sentence thus was imprisonment for 12 years including a non-parole period of 9 years, both such periods commencing on 16 November 2009. 18The grounds of appeal are:- 1.The judge erred in the assessment of the objective seriousness of offences 1 and 2 by taking into account irrelevant considerations 2.The judge erred in assessing the objective seriousness of offences 1 and 2 as "above the mid-range" and "somewhere in the middle of the mid to high range". 19Garling DCJ addressed the question of where the first two offences fell in the range of objective seriousness. As the grounds of appeal reflect, he found they were above the mid-range and somewhere in the middle of the mid to high range. Summarised, his reasons for so concluding were that:- 1.There was a gross breach of trust. I accept that part of the charge is that the child was under authority but, at this stage, I'm trying to place the offences within a range. It is hard to imagine a greater breach of trust than what the male offender has committed. This is his son who was entitled to be protected by his father, not abused by him. His on has now lost both his parents and, until 18 years of age, will be in care. 2.There has been significant emotional harm. I have set out that harm at an earlier stage and you add to it what I have just said, that is, the emotional harm of losing both parents. 3.The offences took place over a fairly lengthy period of time. 4.I also have to look at the overall series of offences which includes the use of the internet. 20His Honour also observed that he was "satisfied in JM's sentence that counts 1 and 2 should be concurrent as they are part of the one set of sexual behaviour". 21His Honour rejected a Crown submission that the Applicant's offences fell into the worst category or into the upper range of offending because:- 1.There was no penile penetration or the like. 2.The complainant was 9, an age not far removed from the maximum with which s 66BA is concerned. 3.There was no physical injury or threat. 4.The Court sees cases where the factual situation is significantly worse and the abuse goes on for a longer time. 22His Honour observed that the statistical information with which he had been provided was of no assistance because of the wide range of sentences. He expressed the view that although there should be accumulation of some of the sentences, the sentences on Counts 1 and 2 should be concurrent "as they are part of the one set of sexual behaviour". 23His Honour recorded that the Applicant was in his late 50s at the time of sentence, had no prior criminal record. His Honour was prepared to assume he was previously a person of good character. His Honour found special circumstances but the partial accumulation he proposed would take those into account. He accepted that the Applicant would probably have to serve his sentence in protective custody but his Honour did not regard this as a significant matter because, as he said, such a situation is dealt with by the prison authorities on a regular basis. 24His Honour also had before him a report from a psychologist Joanne Mercer concerning the condition of the victim and in particular the impact that his parents' actions had had on him. On the topic his Honour remarked:- The Crown tendered a report from Joanne Mercer, clinical psychologist. It was objected to, however, I allowed it but I will take care with the report as it contains material that goes beyond the agree facts and was obtained for care proceedings. The complainant is now under the responsibility of the Department of Community Services and he is in care. His parents are not permitted to have any contact with him until he attains eighteen years of age. This report was tendered in relation to both offenders to show that there was an aggravating factor, that is, significant emotional harm. Ms Mercer said: 'The emotional impacts for the child are twofold. He is struggling emotionally with an abundance of guilty relating to the consequences his parents are facing. This stems from the sense of responsibility bestowed on him from his parents. He does not fully recognise that he has been through an abusive and traumatic situation. He is about to begin a complex and long-term therapeutic process that requires him to challenge nearly all his ingrained beliefs and trust'. This opinion could hardly be controversial. This young boy was sexually abused by his parents, those are the facts they agree to. I do not need a medical report to tell me that this young boy would have suffered emotional harm, however, the report, as far as any non-controversial part of it is concerned, clearly confirms that. I find that, as a result of the actions of the offenders, their son has suffered significant emotional harm. Grounds 1 and 2 25There can be no doubt that this ground is made out. His Honour's reasons recorded above demonstrate that in assessing the criminality involved in the first and second offences, he took into account "the overall series of offences which includes the use of the internet" and, it is clearly to be inferred, the impact of the course of conduct indulged in by both his parents over an extended period. The first two offences were not related to the internet in any way and while there was evidence that the first offence had occurred a few weeks prior to the victim being interviewed on 16 November 2009, there was no evidence as to the date upon which the second offence occurred beyond the terms of the charge which identified the time as between 1 January and 10 November 2009. Accordingly his Honour's sentencing of the Applicant in respect of these offences miscarried. 26His Honour's errors must also have affected his characterisation of these offences as "above the mid-range" and "somewhere in the middle of the mid to high range". It is not suggested that the matter should be remitted to the District Court and it accordingly falls to this Court to re-sentence the Applicant on the first and second counts. The Court may also make whatever adjustments may be appropriate to the starting dates of the other sentences - see Criminal Appeal Act 1912, s 7(1A). 27There were other errors in his Honour's sentencing. Although it may be inferred that the offences the subject of count 1 and 2 did not occur on the one occasion, there was no basis for concluding that they "took place over a fairly lengthy period of time". Furthermore they were sufficiently different and, not having occurred on the one occasion, there was no legitimate basis for his Honour to have made the sentence for the offence the subject of count 2 entirely concurrent with the sentence imposed for the count 1 offence. 28During the hearing of the appeal the Crown criticised his Honour's reference to having seen worse cases, submitting that this fact should not have influenced his Honour's consideration of the objective seriousness of the case before him. However, his Honour's reference to the topic was rather in the context of placing the instant case in the range of offending against the statutory provision and not in judging its own objective seriousness. In this respect he did not err. 29Relevant in the task of re-sentencing the Applicant are some other findings to which reference must be made. Although his Honour had before him a report and evidence from a psychologist who had conducted an extensive interview with the Applicant and had formed the view that the Applicant posed a moderate-low risk of re-offending, his Honour concluded that it would be impossible for him to make any worthwhile finding in that regard. His Honour also took the view that the Applicant had been sexually abusing the victim and doing it for his own sexual gratification. There was evidence that justified that conclusion. 30During the appeal the Crown also drew attention to his Honour's finding that the Applicant had committed a gross breach of trust, drawing attention to the recognition in MRW v R [2011] NSWCCA 260 at [77] that this is a concept distinct from abuse of authority that is an element of the offence (albeit, because of the possibility of double counting, one to which a sentencing judge should be careful not to give too much weight) - see MRW v R at [78]. When to this was added the fact that the Applicant's wife was complicit in some of the Applicant's offences, and had committed others, the result was that the victim had effectively lost both parents for the duration of his childhood. The Crown submitted also that the victim was left not only with the trauma normally suffered by victims who had been abused, but also with the feelings of guilt, in consequence of what he had said when interviewed by the authorities, of being responsible for his parents' incarceration. 31I have no difficulty in accepting that all of the matters just referred to properly go in aggravation of the Applicant's offending, though it is also proper to recognise that in some respects the circumstances of the offending are likely not to have been as traumatic as those experienced by many victims whose situation the Court has to consider. 32During the hearing of the appeal, and against the possibility that this Court should re-sentence, an affidavit from by the Applicant was read stating that he has participated in a programme preparatory to participation in the CUBIT programme but that he has been informed that he will not be allowed to participate in the latter until his last 12 to 18 months in custody. While in custody he has not had any institutional charges laid against him and because he is in protective custody, apart for a period of 3 months he spent in Long Bay correctional Centre, he has been unable to obtain employment. 33Although I do not take other offences committed by the Applicant towards the victim as aggravating the offending charged, the fact that there were an appreciable number of such offences means that the offences the subject of counts 1 and 2 cannot be looked at as isolated occasions. 34In the result, recognising that the offences the subject of counts 1 and 2 were separate from each other, and though each was very serious, I do not characterise them as highly as did Garling DCJ. However, the sentences for them should be at least partially accumulated. Garling DCJ found special circumstances as I would have done in light of the accumulation of sentences. In respect of count 1 I would propose that the Applicant be sentenced to imprisonment for a non-parole period of 4 years, together with a further term of 3 years and for count 2, to a non-parole period of 4 years with a further term of 16 months. I would structure these sentences so that there combined effect is no longer than the sentence for count 1 imposed by Garling DCJ. 35Thus although the application for leave to appeal has been successful in that it has been shown that Garling DCJ erred and the sentences he imposed on counts 1 and 2 were affected by those errors, the effective sentence imposed on the Applicant will not be reduced. That flows from the fact that, in my view, the offending the subject of counts 1 and 2 merited the effective sentence imposed for these counts. Indeed, had I taken the view that the sentences for counts 1 and 2 should be reduced below the level imposed by Garling DCJ, there is much to be said for the view that, as counsel for the Applicant was advised, the degree of concurrency of the sentences for counts 3 to 5 should have been revisited, and this even though there was no Crown appeal. At least the non-prole period for the third and fifth offences were very lenient. 36Accordingly, I propose the following orders:- (1)Allow the appeal. (2)Quash the sentences imposed by Garling DCJ on 15 October 2010 in respect of Counts 1 and 2 and in lieu thereof re-sentence the applicant as follows:- (a)In respect of Count 2, sentence the applicant to imprisonment for a non-parole period of 4 years commencing on 16 November 2011 together with a further term of 16 months. (b)In respect of Count 1, sentence the applicant to imprisonment for a non-parole period of 4 years commencing on 16 November 2014 together with a further term of 3 years. (c)Record as the date upon which it appears to the Court that the applicant shall become eligible for parole 16 November 2018. 37FULLERTON J: I agree with RS Hulme J. 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: 04 June 2012