Martin v R

Court of Criminal Appeal (NSW)|2012-11-27|Before: Hoeben JA, Davies J, Campbell J

Judgment 1HOEBEN JA: I agree with Davies J and the orders which his Honour proposes. 2DAVIES J: On 25 August 2011 the Applicant appeared before Judge Garling in the District Court to be sentenced in respect of the following offences:

Counts 1 and 3: Aggravated indecent assault of a person aged under 10 years for which the maximum penalty was imprisonment for 10 years. Count 2: Aggravated indecent assault of a person under the age of 16 years for which the maximum penalty was imprisonment for 7 years.

Second set of offences Counts 1 and 2: Produce child pornography for which the maximum penalty was imprisonment for 10 years. Counts 3 and 4: Aggravated film a person in a private act for which the maximum penalty was imprisonment for 5 years. 3In relation to Count 1 there were 13 counts of producing child pornography and 2 counts of Aggravated Film Person in a Private Act taken into account in the Form 1. 4Judge Garling sentenced the Applicant as follows:

First set of offences Count 1: Imprisonment for a non-parole period of one year and six months commencing 30 April 2010 with an additional term of six months. Count 2: Imprisonment for a fixed term of one year and six months commencing on 30 April 2010 and expiring 29 October 2011. Count 3: Imprisonment for a non-parole period of one year and six months commencing on 30 April 2011 with an additional term of nine months.

Second set of offences Count 1 (including the Form 1 offences): Imprisonment for a non-parole period of one year and four months commencing 30 July 2012 and expiring on 29 November 2013 with an additional term of eight months. Count 2: Imprisonment for a non-parole period of one year and four months commencing on 30 November 2012 and expiring on 29 March 2014 with an additional term of one year and four months. Counts 3 and 4: Imprisonment for a fixed term of one year commencing on 30 July 2012 and expiring on 29 July 2013. 5The total sentence was five years and three months commencing on 30 April 2010 with a non-parole period of three years and 11 months to expire on 29 March 2014.

6The victims in the matters, WK, born in November 1982, and KK, born in June 1986, are sisters. The victims resided with their parents DK and SK and their brother VK in Ramsgate Avenue, Bondi, between 1986 and 1992. 7Whilst residing at that location, the family met the Applicant at church. The Applicant had a 35mm camera which he kept with him frequently. He would often take photographs of the K children playing. The Applicant would give the developed photographs to DK and SK. Over time, the friendship between the K family and the Applicant grew to the stage that the Applicant was invited to their family home in Bondi. 8The Applicant would spend a considerable amount of time with the K family forming a bond that allowed him to take the K children with him on outings to local parks, beaches and shopping outlets in the Bondi area. The Applicant would take the K children with him in his motor vehicle that he owned at the time being a white 1983 model Mitsubishi Express van. The Applicant lived in the motor vehicle at the time, having a mattress in the back covered with blankets and the windows lined with fitted curtains. The Applicant had all of his personal belongings in the vehicle including his clothing, footwear and cooking utensils. The Applicant also had a black dog that lived with him in the van. 9In early 1992, DK and SK separated and DK moved to Surry Hills. When DK moved out of the premises, the Applicant would attend more frequently, spending more time with SK and the three K children. SK decided to move herself and the three children to the lllawarra area for a new start. 10SK informed the Applicant of the move to the lllawarra and he offered to help. The Applicant hired a truck from a local hire company in Bondi and assisted SK and the three K children with the move. SK and the three K children moved to a property at Farmborough Heights on 6 April 1992. 11After the move was completed on the night of 6 April 1992, the Applicant asked KK to come to his van to which KK agreed. KK was 5 years old at this time. KK was taken into the rear of the van by the Applicant through the nearside sliding door which was closed behind them by the Applicant. As KK entered the vehicle, the Applicant told her to remove her pants, which she did. KK was laid down on the mattress in the van and the Applicant proceeded to lick his fingers. The Applicant then began to rub KK on the outside of her vagina. This action continued for a number of minutes, with KK feeling scared and confused. KK then put her pants back on, at which time the Applicant said, "This stays with us. No one needs to know." This was Count 1. 12Over the next year the Applicant frequented the Farmborough Heights property, attending the residence between two and three weekends out of every month. The Applicant would park his van outside the premises on the street and would stay the weekend. During his visits, the Applicant would spend time with WK, and would frequently take WK, KK and their brother VK out on day trips in the local lllawarra area. The Applicant would often take the K children on trips on his own, after getting permission from SK to care for the children. On occasions, the Applicant would take WK and KK out with him by themselves, and would offer the others gifts upon his return. 13Whilst living at the Farmborough Heights property, WK befriended JR, who was born in July 1983, whom she met through school at Farmborough Road Public School. JR spent a lot of time at the K residence, especially with WK. JR frequently slept over at the K residence and came into contact with the Applicant during 1992 to 1994. 14In June of 1992, the Applicant took the victims JR and WK to Westfield Figtree. Whilst at Westfield, the Applicant took the two girls to Kmart where they both were allowed to select a pair of shoes. The girls both selected a pair of pink and white joggers. The Applicant took the girls through the checkout and paid for the shoes. The Applicant escorted the two girls back to the van and drove them to the Hockey Field behind the Westfield Figtree car park. The two girls went to play in the field while the Applicant waited in the van. 15JR returned to the van whilst WK continued playing. JR was taken into the rear of the van and placed on the mattress. The Applicant sat next to JR at which time he slowly placed his hand down her pants onto the outside skin of her vagina. The Applicant began to rub his fingers up and down JR's vagina. JR yelled for the Applicant to "stop" and the Applicant removed his hand and said, "sorry" before opening the sliding door and leaving the van. JR remained on the mattress and was in shock about what had happened to her. She recalls remaining on the mattress until she was driven home by the Applicant. This was Count 3. 16In July 1992 the Applicant took WK for a drive in his van. The Applicant pulled over at some remote location and had WK get into the back of the van. She was asked to get undressed and did so. He asked her to lie down and WK did so. The Applicant then rubbed his fingers on the outside of her vagina. The Applicant then stopped and told WK not to tell anyone what had happened. This was Count 2. 17In 1994, a disclosure was made by KK to her mother SK about the assault upon herself and sister by the Applicant. DK was informed and he attended the home address in Farmborough Heights. Whilst DK was at the location, a call was made to the Applicant to have him attend the address. The Applicant attended the address where an altercation erupted and he was detained at the address until Police were called and arrived. Police attended a short time later and the Applicant was removed from the scene. An initial complaint was made to Police, and a statement made by the victim WK. No further action against the Applicant was taken at this time. 18The victim KK reported the matter to Police in October 2008, after suffering for many years in relation to the matter. Statements were obtained from victims and witnesses in relation to these matters, and investigations led to the police locating the Applicant at Little Bay. 19On 30 April 2010, the Applicant was arrested. He was conveyed to Maroubra Police Station and was offered the opportunity to participate in an electronically recorded interview to which he agreed. During the interview the Applicant made admissions to the offences in relation to WK, KK and JR over the years 1992 to 1994. The Applicant explained in detail the accounts which were stated by the victims, stating that he was very sorry and was very apologetic to the victims.

Second set of offences 20There were four different victims. Victim one was 11 years old, victim two 7 years old, victim three 10 years old, victim four 11 years old. 21The facts in short are these. The Applicant owned a white Toyota Hi Ace van. He regularly frequented the Rose Bay Boat Hire business, situated in Vickery Avenue, Rose Bay. This was in the area of a beach and the sailing club and was very popular and busy throughout the summer period. It was frequented by families with school age children. 22On 3 May 2010 the Applicant contacted a friend asking her to go to his unit and remove a number of items. She had the key to his unit. He directed her to remove certain items contained in a bag in his lounge room. She attended, she collected the bags, she looked inside the bags and saw that one of the bags contained numerous pairs of children's underpants. The other bag contained a number of cardboard cigarette packets and cardboard bandage boxes. Inside them were located small video cameras. She contacted the police. 23A search warrant was obtained and a search was executed. During the search of the premises and the vehicle numerous items were seized as exhibits. There were numerous pairs of children's underwear, five Spy Cam video cameras, one of which was contained inside an empty Benson & Hedges cigarette packet and another of which was in an elastic bandage box. The boxes were seized along with 27 micro SD memory cards. The boxes and packets had been modified to allow a miniature Spy Cam camera to fit and holes had been cut in the packets. 24The footage contained on the twenty-seven micro SD memory cards was downloaded and viewed. The total of the cards contained eighty-four video files which were viewed by police. Nineteen of the video files formed the basis of the four offences charged and the 15 Form 1 offences, all of which involve the four different victims. 25In respect of Count 1 on 30 January 2010 the video showed the Applicant's face as he positioned the camera on the floor of what appeared to be inside the rear of a van. He left the van and closed the door. Victim one entered the van closing the door behind her. She was dressed in a white swimming shirt and pink tartan shorts. She removed her shorts and underwear, pulling them down to her ankles. She crouched down and urinated into a clear container that had a black and white honey label on it. When she finished she replaced the lid back on the container, pulled her pants back up and left the van. She did not acknowledge the camera in any way and it is accepted that she did not know about the camera. The footage was of high quality and clearly depicted the victim's genitalia and actions of her urinating. 26The other videos were all of a very similar nature. In each of them a young girl went into the van, removed part of her clothing, usually the underwear, crouched down, urinated and exited the van. The footage was of high quality each time that depicted the victim's genitalia and actions of them urinating. 27The Applicant also told both the Psychologist, Ms Robilliard, and the Psychiatrist, Dr Furst, who examined him that he afterwards drank the urine because he believed it had melatonin and serotonin in it and that those substances helped him to sleep better.

Subjective factors 28The Applicant was born on 15 August 1946. He was, therefore 65 at the time of sentence. The First set of offences was committed in 1992 when he was aged 45. 29He gave evidence of a difficult upbringing. His parents separated when he was eight and he was largely raised by his grandparents. He was sexually molested when he was nine or ten years of age by one of the Brothers at his school. At eighteen he was imprisoned for a month. He was anally raped on three occasions in prison. 30He married when he was in his mid-thirties. He and his wife had a daughter. The marriage broke up after two years. He has not had any contact with his daughter since she was very young. 31He said he was diagnosed with schizophrenia in about 1989. A report from Dr Lee indicated that he suffered from schizophrenia since 2004 when that doctor first came in contact with him. He told the Psychologist and the Psychiatrist that he regularly used cannabis and had done so for many years.

32His Honour gave the Applicant a discount of 25% in relation to both sets of offences by reason of early pleas. He noted that the Applicant had expressed remorse. 33His Honour made reference to the various reports from the doctors and the psychologist but his Honour's conclusion was that the schizophrenia did not appear to affect his commission of the offences. His Honour thought that there was every likelihood he could re-offend in the future towards young children. His Honour said that he needed treatment. 34His Honour said it was difficult to make a finding of special circumstances even though there were some because it was necessary to accumulate sentences. After imposing the sentences his Honour said that he found some special circumstances, these being rehabilitation and accumulation of sentence. 35For the first set of offences his Honour noted that he had to sentence the Applicant in the way he would have been sentenced in 1994 when the matter was first reported to the police. His Honour was of the view that sentences at that time were significantly lower than at the present time. 36In relation to the second set of offences his Honour said that they did not fall anywhere near the top of the range for those sorts of matters. Nevertheless, the offending was extremely serious.

The appeal 37The Applicant seeks leave to appeal on one ground only as follows: His Honour erred in that in seeking to maintain the "statutory ratio" between the total non-parole period and the total "head" sentence his Honour erroneously extended the additional term of Count Two in the second set of charges rather than reducing the non-parole period for that count and (at least) Count One in the second set of charges consistent with a finding of special circumstances. 38The Applicant submitted that since Counts 1 and 2 in the second set of charges were both on the same facts the individual sentence for Count 2 should not have been longer than that imposed for Count 1. In fact, it was submitted, because Count 1 involved taking into account a large number of other offences it might have been expected that a longer sentence would have been imposed for that count rather than for Count 2. 39The Applicant submitted that it appeared that his Honour increased the additional term for Count 2 so that overall the statutory ratio was maintained. Since, however, his Honour had found special circumstances based partly on rehabilitation one might have expected that there would have been a reduction in the ratio as far as the overall sentence was concerned. 40The Crown acknowledged that the Sentencing Judge could have structured the sentences other than he did. The Crown said, however, that it was clear his Honour gave close attention to the difficulties associated with totality and the statutory ratio by making reference to those matters at three different places in his Remarks on Sentence. 41The passages are these: When I consider this matter I have to allow him a twenty-five per cent discount for his plea of guilty. He has expressed remorse. He had a difficult upbringing as a child and young adult. His schizophrenia does not seem to affect his commission of these offences. It seems to me there is every likelihood he could re-offend in the future towards young children. He needs treatment, but it is difficult to find special circumstances, although there are some, because I have to accumulate sentences and it is a difficult exercise in accumulating between the first and second sets of offences. It is a mathematical problem more than anything else. ... The next problem, of course, is I have to sentence him the way he would have been sentenced back in 1994. As I recall, that was well before standard non-parole periods which I think came in in 2003. From what I have read, the sentences at that time were significantly lower than sentences today. I have had a look at a number of different sentences about that time. They do not really help because they are all different to this, but they do show a significantly lower pattern of sentencing than he would have been sentenced to today. I have to take into account that the sentences have a maximum penalty of ten years and seven years. There are three victims. I have to take twenty-five per cent off for the plea of guilty, and I have to have a look at the overall criminality involved. I also need to accumulate the sentences, at least in part. ... This does not fall into that top category, but it is still extremely serious. It calls for a full-time term of imprisonment. It also means that I have a most difficult task in sentencing this man, in accumulating and in the end achieving sentences which still observe the requirement that he cannot be sentenced to more than three-quarters of the head sentence and, therefore, I have had to adjust some of them from what I might have done to reflect that. I have taken into account all that was said on his behalf in very careful and well-worded submissions made on his behalf. (emphasis by the Crown) 42The Crown submitted that these passages show that the Sentencing Judge was concentrating on the principle of totality. It was submitted that the Applicant's concentration on Count 2 in the second set of offences ignored the overall criminality and the approach of the Judge to the totality principle.

43As far as the individual sentences are concerned his Honour reduced the statutory ratio to 66.66% for Count 3 in the first set of offences and for Count 1 in the second set of the offences. He also reduced the statutory ratio to 50% for Count 2 in the second set of offences. That appears to have been to maintain the 75% ratio overall. His Honour has done that by increasing the additional term for Count 2 in the Second set of offences. 44Where special circumstances are found an approach which results in an increase of the additional term rather than a reduction in the non-parole period is erroneous: R v Tobar; R v JAN [2004] NSWCCA 391 at [33], [36] and [39]; R v Huynh [1995] NSWCCA 220 at [35] and [39]. 45Bearing in mind that his Honour found some special circumstances based on the need for rehabilitation of the Applicant the final result with an overall ratio of 74.6% indicates that his Honour has overlooked the need to reduce the non-parole period by virtue of that finding of special circumstances. 46A failure of a Sentencing Judge to advert to the finding of special circumstances in connection with the overall sentence will lead to an inference that the matter has been overlooked: Terry v R [2006] NSWCCA 351 at [16]; R v Hung Lo [2005] NSWCCA 436 at [74]. 47Furthermore, his Honour's approach has resulted in the Applicant receiving a lesser sentence for Count 1, in respect of which 15 associated offences were taken into account, than for Count 2 when the criminality involved in Counts 1 and 2 was identical. 48In my opinion error has been demonstrated by reason of the Sentencing Judge's approach to the adjustment of the statutory ratio as a result of the finding of special circumstances. It is, therefore, necessary for this Court to consider if any lesser sentence is warranted and, if so, to re-sentence the offender. 49No complaint is made about the second set of offences being made wholly cumulative on the first set of offences, nor about the sentences imposed for the first set of offences. I note, however, that the Crown accepted at the sentencing hearing that it would be appropriate for there to be only partial accumulation of the second set of offences on the first set. 50I would not disturb the sentences for the first set of offences. 51In my opinion, for the following reasons, a lesser non-parole period is warranted for the second set of offences, particularly bearing in mind the finding by the Sentencing Judge of special circumstances. References hereafter are to the second set of offences unless otherwise stated. The Judge's starting point for these offences must have been a 4 year period in total by reason of the 25% discount given to the Applicant. That starting point was appropriate. 52First, the offences were serious, as the Sentencing Judge noted but they must be regarded as falling well below the mid-range of objective seriousness. The significant matter is that they were, as the Psychologist described them, non-contact offences. The victims were entirely unaware that they were being filmed. There was no physical contact between the Applicant and the victims. That is not to overlook the considerable betrayal of trust involved in the offending. 53Secondly, the Sentencing Judge noted that the Applicant's schizophrenia did not appear to affect the commission of the offences. Nevertheless, the Psychologist drew attention to a number of matters in his personality and mental make-up that were highlighted in her testing of the Applicant which might have provided an explanation for what the Judge referred to more than once as bizarre offending. For example, the Psychologist noted that the Applicant achieved a highly elevated score on the Schizotypal scale. Individuals who exhibit symptoms of Schizotypal disorder can engage in inappropriate interpersonal behaviour which may extend to sexual abuse of children. 54Thirdly, both the Psychiatrist and the Psychologist thought that there were some prospects for rehabilitation with appropriate treatment both inside and outside custody. The Applicant gave evidence at the sentencing hearing that he wanted to enrol in the CUBIT program, and he applied to do so shortly after he was sentenced. At the time of the hearing of the appeal he was still awaiting a place in the program 55Fourthly, although there were two separate counts of producing child pornography they were both part of the same course of offending. That is highlighted by the inclusion of 13 similar offences in the Form 1 to be taken into account in respect of Count 1. Further, and as his Honour recognised, the offences constituting Counts 3 and 4 and two similar offences on the Form 1 were also part of the same offending. 56In my opinion the Applicant should be sentenced for the second set of offences as follows: In respect of Count 2 a non-parole period of 12 months commencing 30 July 2012 and expiring 29 July 2013 with an additional term of 9 months expiring 29 March 2014; In respect of Count 1, and taking in to account the matters on the Form 1 a non-parole period of 14 months commencing 30 September 2012 and expiring 29 November 2013 with an additional term of 1 year 8 months expiring on 29 July 2015; in respect of Counts 3 & 4, imprisonment for a fixed term of 12 months commencing 20 July 2012 and expiring 19 July 2013. 57The result will be an overall sentence (including the first set of offences) of 5 years 3 months with a total non-parole period of 3 years 7 months. That produces a ratio of 68.25%, a result that is consistent with the Sentencing Judge's view of the special circumstances which he found. 58Each of the sentences is for a non-parole period of fewer than 3 years. Section 50 Crimes (Sentencing Procedure) Act 1999 applies. The Sentencing Judge did not refer to this provision nor did he make orders in accordance with it. It does not appear that his attention was drawn to it by Counsel who appeared at the sentencing hearing. 59The difficulties in complying with this section where multiple offences are involved were referred to in Cross v R (No. 2) [2012] NSWCCA 234. For reasons there given it is futile to make orders in respect of the first set of offences because those non-parole periods have expired. S 50(2) mandates the making of a parole order for each of Counts 1 and 2 of the second set of offences notwithstanding that at the expiry of the sentence which will be imposed for Count 2 the Applicant will not be eligible for release by reason of the sentence for Count 1.

Conclusion 60I would make the following orders: (1)Grant leave to appeal. (2)Appeal allowed. (3)Quash the sentences imposed by Judge Garling in respect of the Second set of offences. (4)In lieu, sentence the Appellant as follows: (a)In respect of Count 2 a non-parole period of 12 months commencing 30 July 2012 and expiring 29 July 2013 with an additional term of 9 months expiring 29 April 2014; (b)In respect of Count 1, and taking in to account the matters on the Form 1 a non-parole period of 14 months commencing 30 September 2012 and expiring 29 November 2013 with an additional term of 1 year 8 months expiring on 29 July 2015; (c)In respect of Counts 3 & 4, imprisonment for a fixed term of 12 months commencing 20 July 2012 and expiring 19 July 2013. (d)Direct that in respect of Count 2 the Appellant be released on parole on 29 July 2013; (e)Direct that in respect of Count 1 the Appellant be released on parole on 29 November 2013. 61CAMPBELL J: I agree with Davies 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: 13 December 2012

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