KW v R

The facts 5Ordinarily, the task of a judge sentencing following trial is to find the relevant facts, so long as those facts are not inconsistent with the jury's verdicts. Here, because of the lengthy period between conviction and sentence, it was difficult for the judge to find the facts on that basis. To assist him, two statements of facts, previously prepared for use in the Local Court, were put before him. These substantially formed the basis for his fact finding, although he did also resort to his recollection of the evidence in the trial. No objection is taken to this approach to finding the facts. However, it has given rise to one ground of appeal. (The statement of facts has the common deficiency of focussing on the investigation, or the manner in which the offences came to light, rather than on what the offender actually did. The facts are recounted in a rather unenlightening manner.) 6The victim of the indecent assault offence and two of the produce child pornography offences was the applicant's daughter. Prior to September 2006, the applicant and the victim's mother had lived together in a de facto relationship. A son, aged about 6 in December 2008, and a daughter (the victim) aged about 21 months at that time, were born. In September 2006 the applicant and his then de facto separated. The applicant thereafter had regular access to the children; they stayed with him (at his mother's house) on alternate weekends and parts of school holidays. 7In about December 2008 the victim was sitting naked in a bathtub. The applicant used his finger to penetrate the labia majora. This constituted the indecent assault offence (Count (i)). Using his mobile telephone, the applicant photographed the event. The photograph shows the child sitting in the bathtub, with the applicant's finger penetrating her vagina. This constituted the first offence of producing child pornography (Count (ii)). The applicant took a second photograph of his daughter, seated, with her legs apart. Central to the photograph, prominently displayed, is the child's vagina. This constituted the second offence of producing child pornography (Count (iii)). The third such offence (Count (iv)) was constituted by the applicant photographing the body of a young boy from the lower abdomen to above the knees. The photograph shows the boy undressed, his penis exposed in the centre of the photograph (Count (iv)). The applicant acknowledged that the subject of this photograph, whose face could not be seen, was his 6 year old son. 8The applicant was also in possession of a lap top computer and associated electronic and data storing devices. Included in the material stored in these devices was a considerable volume of child pornography, in photographs, video and movie film form. This constituted the offence the subject of Count (v), to which the applicant pleaded guilty. 9A scale to grade child pornography, with ratings from one to ten in escalating order of gravity (or depravity) has been devised. This is called "the Copine Scale". The material on the computer included images fitting within various of these categories. A detailed analysis of the categorisation of the material was provided to the sentencing judge. 10The Statement of Facts also contained some rather cryptic descriptions of the various images and material. These were expanded upon by his Honour, who apparently viewed some or all of the images. This Court was not invited to take that course. 11The applicant's offences came to light when he left his mobile telephone in a Centrelink office. On 14 January 2009 it was found by a woman who, intending to attempt to locate its owner and return it, examined its contents. In doing so, she observed the three photographs of the two children. She handed the telephone to police. 12Police traced the telephone to the applicant. On 15 January he was arrested and cautioned. When informed of the reason for his arrest, the applicant said that he had taken the photographs because his children had eczema, and he intended sending the photographs to their mother to show her how the medication he had been using had been working. In fact, the applicant gave various accounts and explanations for his possession of the material. At one point he denied having seen the photograph the subject of Count (ii), and said that his son often used his telephone to take photographs of his sister. He said that he could not clearly identify whether the hand in the photograph was that of an adult or that of his son. He said that he did not have any other images of the kind. He declined to allow police to remove the computer at his home without a search warrant. 13Later that day a search warrant was executed at the applicant's home, and the computer equipment was located. The applicant admitted ownership of the equipment and denied that it contained any pornographic material. He was then released from custody pending further investigation and forensic examination of the computer equipment. That examination revealed the images the subject of the count of possession of child pornography (Count (v)). 14On 19 January the applicant contacted police and asked to speak to one of the officers involved in the investigation. He said that he now remembered the photograph of the finger in the child's vagina, and that he now recalled that his son was taking photographs and that he (the applicant) had put his finger in his daughter's vagina to remove some zinc and castor oil cream. He was then asked about pornography on the computer equipment and said there were some "video and stuff I was just looking at through LimeWire". (A psychiatric report, to which reference will be made below, described "LimeWire" as a "peer to peer file sharing website".) 15The applicant then left the police station but shortly after again rang the police officer and said that he now remembered that there were other files and material from LimeWire on the computer. 16In a second interview, the applicant repeated that he had taken the photograph of the baby girl to send to the child's mother, to show how a new cream was working. He gave a similar explanation for the photograph of his son. He said that he had not in fact sent either photograph.

Victim impact statement 17A Victim Impact Statement signed by the victim's mother was provided to the sentencing judge. She gave it the heading "Broken". She wrote of her frustration at not knowing precisely what had happened to her children, and the effect that that had upon her. She described what she called a behavioural change in her son. She said that he had changed from a happy enthusiastic child to an "all round sad little boy" lacking trust in adults. She said he had lost a father and a grandmother all at once, for which he held a lot of anger and sadness. 18She said that her daughter was too young to give any account of the effect on her but said that her body language was revealing. She said her daughter is very clingy and untrusting of anybody not within her family. There was a good deal more in this vein but that is sufficient to give a flavour of what the victims' mother said was the impact of the offences on her family.

The applicant's personal circumstances 19The applicant did not give evidence in the sentencing proceedings. Some medical evidence, including a psychiatric report, was tendered. It is from this report that the applicant's personal history is to be obtained. 20The psychiatrist, Dr Furst, took a detailed history from the applicant. He was born in January 1977 and was almost 32 years of age at the time of the offences. He told Dr Furst that his father was a violent alcoholic from whom his mother separated when the applicant was 4 years of age. He did not see his father again for 10 years, when there was a brief reconciliation between his parents, and then not again for another 5 years. He found his mother "stifling", to the point of "emotional incestuous[ness]". He said that she imposed strong religious demands on him. 21He described himself as "very intelligent", and felt that he should be able to "set his own boundaries", and "explore the World and see what society is all about". He self-diagnosed Attention Deficit Hyperactivity Disorder (a diagnosis that has not been formally confirmed). The applicant told Dr Furst that he had downloaded the LimeWire material out of intellectual curiosity but said that he was "repulsed" by what he saw. He understood that it was wrong to view the material. 22He described to Dr Furst a head injury as a pedestrian in 1995 (at age 18) and raised the possibility of brain damage. Dr Furst diagnosed traumatic brain injury, adjustment disorder with depressed mood, and pre-morbid anti-social personality traits. 23Although Dr Furst thought that the applicant had "sufficient intelligence and presence of mind to understand that his actions were wrong", he also considered that his cognitive deficits and personality change (presumably post brain injury) magnified his pre-existing anti-social tendencies and contributed to his offending behaviour.

The remarks on sentence 24The sentencing judge set out the facts in the manner I have described above. In describing the offence the subject of Count (i) his Honour said: "The photographs included one of a very young girl who appears to be sitting naked in a bathtub with a finger, the tip of which appears to me to be penetrating the child's labia majora." (bold added) 25He referred to the evidence of the applicant's personal circumstances in a manner to which no objection is taken. This included extensive reference to Dr Furst's report. He referred to the Victim Impact Statement, but observed that he was not in a position to conclude that the behaviour of the children, or the mental state of the mother, were attributable to the offences with which he was dealing. He determined that he could not take that material into account for sentencing purposes. 26His Honour recognised that, in respect of the first count, because it was subject to a standard non-parole period and the provisions of Pt 4 Div 1A of the Sentencing Procedure Act, it was necessary that he assess where, on a scale of objective gravity, that offence lay. He accepted a Crown submission (contrary to that advanced on behalf of the applicant) that that offence was significantly above the mid-range of objective seriousness for offences of its kind. Indeed, he said that there was "no escaping that classification". That was predominantly because of the age of the child at the time of the offence. 27Again, in relation to that offence, he said: "In relation to Count 1 carrying as it does the standard non-parole period of 8 years for an offence in the mid-range of objective seriousness, in my view, I cannot see any way that I can avoid imposing that sentence on him as the non-parole period for Count 1. Even for what the offender did that in my own view is a very severe penalty and is significantly more than I would have imposed as a non-parole period even for this offence. However, I am bound by the requirements of Part 4 Division 1A of the Crimes (Sentencing Procedure) Act. Because that is my view I am not prepared to impose an even higher non-parole period even though I have assessed what the offender did in relation to Count 1 as being above the mid-range." Accordingly, he went on to impose that sentence, and the other sentences to which I have referred to above. 28It is clear that his Honour was significantly troubled by the standard non-parole period. An offence carrying a maximum sentence of 10 years, with a standard non-parole period of 8 years, presents a particularly difficult sentencing exercise. In the course of argument, his Honour had made it plain that he considered that the specification of a standard non-parole period of 8 years in respect of an offence that carries a maximum penalty of imprisonment for 10 years to be unwieldy and unworkable. This was a case in which, by reason of the applicant's pleas of not guilty, the standard non-parole period legislation (the Sentencing Procedure Act, Pt 4 Div 1A) applied: R v Way [2004] NSWCCA 131; 60 NSWLR 168. However, the emphasis to be given to the standard non-parole period is now known to be significantly less than was believed when Way was decided: Muldrock v The Queen [2011] HCA 39; 244 CLR 120. The judge was sentencing before the latter decision was published. 29Because of the difficulties he perceived in sentencing in respect of Count (i), the judge determined to impose fully concurrent sentences in respect of the remaining counts. Moreover, he considered himself precluded from giving effect to a finding, that he otherwise would have made, that special circumstances within the meaning of s 44(2) of the Sentencing Procedure Act existed. Such a finding would justify a modification of the non-parole period in relation to the head sentence. Section 44 in effect requires that the non-parole period of a sentence is to be not less than three-quarters of the total sentence, unless the court finds that there are special circumstances justifying departure from that proportion. It does not impose any prohibition, prima facie or otherwise, on structuring a sentence in which the non-parole period is greater than three-quarters of the total sentence. It is generally accepted that a variation in the statutory proportions that results in a non-parole period less than three-quarters of the head sentence is a benefit to the offender. Here, because the standard non-parole period is four-fifths of the maximum available sentence, there was little room for the statutory proportions. That is why the sentence imposed appears to be unbalanced. 30In his discussion of the objective seriousness of the first offence, the sentencing judge said: "The learned Crown Prosecutor submitted, correctly in my view, inescapably in fact, that if the touching of an eight year old girl in the shower on the outside of her vagina comes close to the worst class of case then it must be the position that the offender to place his finger perhaps just into [the victim's] labia majora. That is to say of a twenty-one month old girl and to take a photograph of it must fall significantly above the mid range of objective seriousness for this kind of offence." (bold added) The first part of this passage was a reference to a decision of this Court in GSH v The Queen; The Queen v GSH [2009] NSWCCA 214 in which it was said that: "... it is difficult to justify a finding below the mid range for an offence under s 61M(2) constituted by the touching of the genitalia of a nine year old girl." 31At the conclusion of sentencing, the Crown representative, very fairly and properly, drew attention to the manner in which his Honour had recounted the facts of Count (i). He is recorded as saying: "Your Honour when making comment in the facts about what's depicted in the photographs said that the photographs depicted that the offender's finger was penetrating the labia majora. I just want to make it perfectly clear your Honour's not sentencing obviously for a case of sexual intercourse and I just want to make that perfectly clear that your Honour is sentencing for an offence of aggravated indecent assault." The point of this was to ensure that his Honour had not fallen into sentencing error of the kind identified in The Queen v de Simoni [1981] HCA 31; 147 CLR 383. 32His Honour replied by saying that he was well aware of that, and that he had included that reference because it was what the applicant himself had told police. He made it clear that he had not sentenced the applicant for a more serious offence than that of which he was convicted.

The grounds of appeal 33The grounds of appeal are pleaded as follows: "1. The learned judge erred in determining the sentence on Count 1 on the basis that the standard non-parole period mandated a particular sentence when the objective gravity of the offence was of or above the mid-range of objective gravity; 2. The learned judge erred in finding that the appellant (sic) had committed a more serious offence, that is aggravated sexual intercourse with a child under 10, than the offence with which he was charged and convicted, namely aggravated indecent assault with a child under 10; 3. The sentence imposed on Count 1 was manifestly excessive."

Ground 1: standard non-parole period 34It may be said at the outset that the Crown concedes that Ground 1 has been made out. That concession was inevitable having regard to the decision of the High Court in Muldrock, delivered after sentencing in this matter. That has the consequence that the Court must set aside that sentence, and proceed to sentence the applicant. However, there is also a flow-on effect on the subsequent sentences, in respect of the total concurrency of all sentences, and in respect of the judge's approach to the finding of special circumstances under s 44(2) of the Sentencing Procedure Act. Muldrock makes it clear that the judge was not constrained, as he thought he was, to impose a sentence that began with the standard non-parole period.

Ground 2: de Simoni error 35The substance of the complaint under Ground 2 is that the judge, on two occasions, referred to penetration of the child's vagina. Penetration is not an element of an offence against s 61M(2) of the Crimes Act. It is an element of the more serious offence of sexual intercourse with a child under the age of 10 years, which carries a maximum penalty of imprisonment for 25 years (Crimes Act, s 66A(1)), or, in its aggravated form, imprisonment for life (s 66A(2)) and a standard non-parole period of 15 years (Sentencing Procedure Act, s 54B, and the Table to Div 1A). One circumstance of aggravation is that the victim is under the authority of the offender (s 66A(3)(d)). 36The circumstances giving rise to Ground 2 arise because of the manner in which the facts were put before the sentencing judge. This included the evidence given in the trial. In recounting the facts, he could scarcely have avoided the reference to penetration and given an accurate account of the facts as they were put before him and before the jury in the trial (see [24] above). The second reference, in his assessment of the objective gravity of the offence (see [30] above) was again a reference to the facts that had been proved. His Honour accepted that the offence was "significantly above the mid-range of objective seriousness". Even without reference to penetration, it was inevitable that the offence was of the most serious of its kind. It is notable that the second reference to penetration was qualified by the word "just", thus diminishing any lingering impression that he treated the offence as one of sexual intercourse. 37The sentence that he imposed, although now shown in accordance with Muldrock to have been tainted with error, demonstrates clearly that he sentenced for the very offence of which the applicant was convicted. 38Notwithstanding his Honour's references to penetration, I do not accept that he sentenced on the basis that the applicant had committed the more serious offence of sexual intercourse. 39In any event, as it is necessary to re-sentence the applicant, it is not productive to consider that further.

Ground 3: manifest excess 40It follows from what I have said about Ground 1 that Ground 3 also must succeed.

Re-sentence 41Against the possibility of sentencing, affidavit material concerning the applicant's personal circumstances since sentencing was put before this Court. Although I have carefully read this material and taken it into account, it discloses no relevant change in circumstances. 42I accept, as did the sentencing judge, that the offence the subject of Count (i) was a serious offence of its kind. The age of the child alone is sufficient to warrant that assessment. 43There is no reason not to give effect to the finding of special circumstances that Hosking DCJ made, but felt unable to give effect to. I would adopt that finding, and structure the sentences - predominantly the aggregate sentence - to reflect that finding. 44No challenge was made to the length of the sentences imposed in respect of Counts (ii)-(v). However, one consequence of the result in relation to Ground 1, and that the sentence to be imposed in respect of Count (i) will be significantly reduced, is that total concurrency is no longer appropriate. I consider this to be a matter which does call for some accumulation. 45I propose the following orders: (1) Leave to appeal granted; (2) Appeal allowed, sentences set aside; (3) The applicant be re-sentenced as follows: Count (v): imprisonment for 3 years and 9 months, commencing on 7 April 2010 and expiring on 6 January 2014, with a non-parole period of 2 years and 9 months, expiring on 6 January 2013; Counts (ii)-(iv): imprisonment for a fixed term of 1 year and 6 months, commencing on 7 January 2011 and expiring on 6 July 2012 (I would decline to set a non-parole period in respect of these offences because the sentence will be fully subsumed in those imposed in respect of Counts (i) and (v): see Sentencing Procedure Act s 45(1)); Count (i): imprisonment for 5 years and 6 months, commencing on 7 April 2011 and expiring on 6 October 2016, with a non-parole period of 4 years and 3 months, expiring on 6 July 2015. 46The aggregate is a total sentence of 6 years and 6 months with a non-parole period of 5 years and 3 months. The earliest date on which the applicant will be eligible for release on parole is 6 July 2015. 47HARRISON J: I agree with Simpson J. 48ADAMSON J: I agree with Simpson 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: 21 February 2013