NW v R

Judgment 1ALLSOP P : I agree with Buddin J 2SIMPSON J : I agree with Buddin J. 3BUDDIN J: Introduction This is an application for leave to appeal against sentences imposed in the District Court following the applicant's pleas of guilty to two offences which he committed on 8 December 2007. Count 1 involved an offence of sexual intercourse with a child between 10 and 14 years, an offence which attracts a maximum penalty of 20 years imprisonment. The child (whom I shall refer to as SW) was his 11 year old niece. The circumstance of aggravation which was relied upon was that SW was under the applicant's authority at the time. She was also the victim of each of the other offences to which I shall now refer. Count 2 involved an offence of using a child under the age of 14 for pornographic purposes, an offence which attracts a maximum penalty of 14 years imprisonment. 4The applicant asked the Court to take into account three additional offences on a Form 1, namely: (i) A further offence of aggravated sexual intercourse with a child between 10 and 14 years ; (ii) An offence of producing child pornography (which attracts a maximum penalty of 10 years imprisonment); and (iii) An offence of aggravated indecent assault (which attracts a maximum penalty of 7 years imprisonment and a standard non-parole period of 5 years). The circumstance of aggravation in respect of that offence was the fact that the victim was under the age of 16. 5In respect of count 2, the applicant was sentenced to a non-parole period of 18 months to commence on 16 September 2008 and a total sentence of 2 years imprisonment. In respect of count 1, and taking into account the matters on the Form 1, the applicant was sentenced to a non-parole period of 4 years and 2 months and a total sentence of 6 years and 8 months. That sentence was ordered to commence on 16 September 2009. The sentences were structured in such a fashion as to give effect to his Honour's finding of "special circumstances". The total effective non-parole period is thus 5 years and 2 months and the effective head sentence is 7 years and 8 months imprisonment. The applicant will be eligible for parole on 15 November 2013. The evidence at the sentence hearing 6The factual background to the offences is not in dispute and can be shortly stated. As I have said, SW was eleven at the time of the offences. The applicant was nearly 25 years of age. SW lived with her grandmother, who is the applicant's mother. Her father and the applicant are brothers. On 8 December 2007, the applicant picked SW up from her home and drove her to his home for a "sleep-over". The applicant's wife was working in a restaurant on the evening in question and so the applicant and SW were the only people at the house at the time. 7When they arrived at the applicant's home, SW sat on the couch in the lounge room. She and the applicant, who was also sitting on the couch, were watching a DVD. Whilst they were doing so, the applicant removed SW's jeans and her underwear. SW said to the applicant "Don't". At the time the applicant was kneeling on the couch over the top of SW. The applicant touched SW on her vagina and then inserted his finger inside her vagina for a short period of time. (That conduct constituted the first matter on the Form 1 document). The applicant then held SW's knees apart and performed cunnilingus upon her for a period of time. SW asked the applicant to stop but the applicant requested that he be able to continue, "just a bit longer". (That conduct constituted count 1 on the indictment). 8After performing cunnilingus upon SW, the applicant obtained a digital camera and took a number of photographs of SW's vagina whilst she lay on the couch. (That conduct constituted count 2 on the indictment). The applicant said to SW, "I'm going to take these photos so that I don't have to do this again". SW twice said to the applicant, "Don't take the photos". However, the applicant continued photographing SW's vagina whilst holding open her vagina with his fingers. (His conduct in holding open her vagina with his fingers constituted the final matter on the Form 1). The applicant had told SW to watch the movie that was being shown on the television. After taking the photographs the applicant dressed SW and left her sitting on the couch. He then left the lounge room and entered a second room where he sat at a computer. A little later he and SW left the house and went to pick up the applicant's wife (SW's aunt). When they returned to the house, SW sat and watched movies with her aunt whilst the applicant went to a nearby room where his computers were housed. 9On 10 December 2007 a search warrant was executed and police seized a number of computers, a digital camera, and media storage devices. Police found twenty-nine photographs, which were taken between 7.55 pm and 8.25 pm on 8 December 2007, recorded on a four gigabyte memory stick. Of the twenty-nine photographs which had been produced by the applicant, twenty-three were pornographic. (That conduct constituted the second matter on the Form 1). A table describing those images was in evidence. Many of those photographs depict the applicant holding open SW's vagina. 10When the applicant was arrested by police on 16 September 2008, he declined the opportunity to participate in a recorded interview. He has remained in custody ever since and the sentence was ordered to commence from that date. 11The applicant did not give evidence at the sentence hearing. Information about his background emerged from a psychologist's report which was prepared by Dr Katie Seidler and from a pre-sentence report. That material was supplemented by a 19 page document which the applicant provided to the sentencing judge. His Honour dealt with that material at considerable length. His Honour accepted that during his childhood the applicant had been a "loner" and that he had not involved himself in the family's activities. He accepted that, as he was growing up, the applicant had been assaulted and bullied by his older brothers. His Honour also accepted that, between the ages of 11 and 15, the applicant had been sexually assaulted on a regular basis by a family friend (the details of that abuse were set out in a further document which was furnished to his Honour by the applicant). His Honour accepted that the applicant had only recently received professional assistance to help him deal with that experience. His Honour described the abuse as being "very grave and very disturbing". 12To compound matters, the applicant was bullied at school, and as a consequence, under-achieved academically. Nevertheless, after leaving school it appears that he had been in fairly constant employment and that he had completed various educational courses. His Honour observed that the applicant had told the author of the pre-sentence report that he wanted to address his "offending behaviour". To that end, it seems that he will, in due course, be offered the opportunity of undergoing the CUBIT program. The sentencing remarks 13His Honour concluded, contrary to a submission made by the Crown, that there were no additional factors which operated to aggravate the seriousness of the offences. His Honour also proceeded upon the basis that cunnilingus is less serious than other forms of sexual intercourse. Notwithstanding his conclusion that the act of cunnilingus "persisted for some time" his Honour determined that that offence was "at the bottom of mid range of objective seriousness for an offence of this nature". His Honour then determined, in conformity with the principles enunciated in Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 [at para 42] that he would "impose a longer sentence than I otherwise might for a case at the bottom of the mid range of objective seriousness" to reflect the matters on the Form 1. His Honour formed the view that the offence which gave rise to count 2 fell "at the bottom of the range of objective seriousness". I observe in passing that it was strictly unnecessary for his Honour to determine where the offences fell in relation to the mid range of seriousness given that neither of the counts on the indictment concerned offences to which a standard non-parole period was applicable. It will be necessary to refer to his Honour's findings in a little more detail shortly. 14There were a number of matters upon which the applicant was entitled to rely which served to mitigate the otherwise appropriate penalties. A discount of 15% was extended to the applicant to reflect the fact that he had pleaded guilty, albeit on the day of his trial. The applicant was extended a further measure of leniency by reason of the fact that he had no relevant criminal record, although his Honour observed that it was "not as much as I otherwise would for other crimes". His Honour also considered, for reasons which he explained, that the fact that the applicant had been the victim of sexual abuse as a child was a further mitigating factor. His Honour finally concluded that the applicant's likelihood of re-offending was low and that accordingly, his prospects of rehabilitation were good. 15His Honour then indicated the process of reasoning by which he arrived at the sentence which he imposed in respect of count 1. His Honour said: As I have said the maximum penalty is twenty years imprisonment. Statistics available from the Judicial Commission indicate that the median head sentence for all offenders is six years imprisonment, and the eighty per cent range is between nine years imprisonment and two years imprisonment. Of the twenty-three cases, eleven are non-consecutive sentences and all involved a plea of guilty. After the necessary discount following a plea of guilty, the median head sentence is four years and six months imprisonment, and the median non-parole period is three years imprisonment. The top of the eighty per cent range is a period of eight years imprisonment, with a five year non-parole period. At the bottom of the eighty per cent range is two years imprisonment with a twelve month non-parole period. Bearing in mind the criminality involved, but bearing in mind, in particular, the matters contained on the Form 1, I believe the correct starting point for the first count in the indictment is a sentence of eight years imprisonment. The Offender is entitled to a discount for the plea of guilty. ... Eight years is ninety-six months. I discount that by fifteen per cent and round it off at eighty months. If the statutory nexus were preserved, that would indicate a non-parole period of sixty months with an additional term of twenty months, that is a non-parole period of five years and an additional term of one year and eight months imprisonment. However, I have already adverted to the fact that there are special circumstances. ... I have determined the appropriate non-parole period is fifty months imprisonment, which is a period of four years and two months, and the additional term will be a term of two years and six months. 16In respect of count 2, his Honour made the following findings: The offence of using a child under the age of fourteen for pornographic purposes is, in my view, at the bottom of the range of objective seriousness. The Crown accepts that the Offender took the photographs of the victim's vagina for his own use and that there was no intention, let alone any attempt, to disseminate the images as is often the position where child pornography is involved. However, the Crown contends that the offence of using a child for pornographic purposes represents a discrete aspect of criminality and that it is appropriate to accumulate the sentences for the two counts on the indictment to some degree. I accede to that submission as well. The Offender could have committed the offences of sexual intercourse with a child under fourteen years and aggravated indecent assault without photographing anything. The photographing of the body of the victim after the event is, in my view, not part of the same criminal activity, albeit that the two are temporally close. Although the offence against s 91G(1)(a) is at the bottom of the range of objective seriousness, I again note that this was not merely photographing of the victim's genitals but intrusive photographing of the victim's genitals, the Offender using his fingers to display, amongst other things, the interior of the victim's vagina. For example, image numbered 8 is a close up photograph of the vagina of the victim with the Offender using his thumb and index finger to hold the vagina opening showing the vaginal canal. There are other close up photographs involving not only the vagina, but also the anus and, on a number of them, the fingers of the Offender opening up the vagina can be seen. The offending is more serious than merely taking photographs of a naked child. 17The applicant relies upon the following grounds of appeal: 1 That the learned sentence judge erred in that he double counted the Applicant's criminality in the s. 66M(1) [sic] Crimes Act offence on the Form 1 to increase the period of imprisonment for count 1 whilst also having regard to the same conduct in assessing the seriousness of the criminality for count 2, thereby increasing the period of imprisonment for that count; 2 That the learned sentencing judge erred in that he double counted the Applicant's criminality in the s. 91H(2) Crimes Act offence on the Form 1 to increase the period of imprisonment for count 1, whilst also imposing a separate and partly-cumulated sentence for count 2 in circumstances where there was a significant commonality between the criminality and elements in count 2 and the offence on the Form 1; and 3 That the learned sentencing judge erred in failing to have regard to or apply the principle of totality, in particular: a That the cumulation of 12 months for counts 1 and 2 was excessive in the circumstances of this case, where the offending of the 2 counts were so temporally close and similar as to be considered one episode of offending, particularly where certain offences on the Form 1 to count 1 related to the conduct in count 2; b The matters raised in grounds 1 and 2, above. 4 The sentences imposed were manifestly excessive, and a lesser sentence is warranted in law. Grounds 1 and 2 18It can be seen immediately that the grounds of appeal are interconnected. Moreover, at the hearing of the application, counsel for the applicant refined the submission in relation to Ground 3. The complaint was limited to a contention that the accumulation of a period of 12 months was excessive, it being accepted that his Honour had indeed had regard to the principle of totality. See generally R v MAK (2006) 167 A Crim R 159; Cahyadi v R (2007) 168 A Crim R 41; R x XX (2009) 195 A Crim R 38. 19The core of the applicant's submission was that the sentencing judge engaged in a process of "double counting" in that "2 of the 3 matters placed on the Form 1 were directly related to or within the criminality of the second count, yet were to be taken into account in the sentencing of (sic) the first count." This resulted, so it was submitted, in the imposition of sentences which, in their overall effect, were manifestly excessive. 20Accordingly, it was contended that the sentencing judge had fallen into error of the kind identified in Pearce v The Queen (1998) 194 CLR 610. The offender in that case had been charged with an offence of maliciously inflicting grievous bodily harm with intent to do so and also with an offence of breaking and entering a dwelling house and whilst therein inflicting grievous bodily harm. In a joint judgment, McHugh, Hayne and Callinan JJ, said: To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts. ... It is clear in this case that a single act (the appellant's inflicting grievous bodily harm on his victim) was an element of each of the offences under ss 33 and 110. The identification of a single act as common to two offences may not always be as straightforward. It should, however, be emphasised that the inquiry is not to be attended by "excessive subtleties and refinements" . It should be approached as a matter of common sense, not as a matter of semantics. The trial judge sentenced the appellant to identical terms of imprisonment on counts 9 and 10 and made those sentences wholly concurrent. We can only conclude that the sentence on each of those counts contained a portion which was to punish the appellant for his inflicting grievous bodily harm on his victim. Prima facie, then, he was doubly punished for the one act. ... Looked at overall, it may well be said that the effect of the sentences imposed on this appellant was not disproportionate to the criminality of his conduct. Nevertheless, we consider that the individual sentences imposed on counts 9 and 10 were flawed because they doubly punished the appellant for a single act, namely, the infliction of grievous bodily harm. Further, to make the sentences imposed on those two counts wholly concurrent may also be said to reveal error in that to do so failed to take account of the differences in the conduct which were the subject of punishment on each count. [at paras 40, 42, 43, 49] 21In R v Dudko (2002) 132 A Crim R 371, Spigelman CJ, with whom the other members of the court agreed, posited the test in terms of whether the "gist or gravamen of the criminal behaviour" was the same in the two offences. See also Della-Vedova v R [2009] NSWCCA 107. 22As a matter of principle, there does not appear to be any difference between the circumstances that prevailed in Pearce , in which the two matters containing the common elements were both on the indictment, and the present case in which the offences in question involved one count on the indictment and two matters on the Form 1 document. Indeed, unlike Pearce , the present sentences were not only partially accumulated but, in respect of count 1, also took into account the Form 1 matters. His Honour did not, and nor of course was he required, to disclose the increment in the sentence which he decided was necessary to reflect the additional criminality. Nevertheless, I am inclined to proceed upon the basis that the increase was not insubstantial. That is because his Honour said that the "starting-point" in relation to count 1, before allowing for the discount for the plea of guilty but after taking into account the Form 1 matters, was 8 years. That was in relation to an offence that his Honour had already characterised as being "at the bottom of mid range of objective seriousness for an offence of this nature". 23Although at times during the course of oral argument, there was reference to the fact that the matters on the Form 1 may arguably have been duplicitous, ultimately no submission to that effect was pressed. In the final analysis, counsel was content to proceed upon the basis which I have identified. 24In any event, the combination of the matters which appeared on the Form 1 document required that there be a meaningful increase in the sentence to be imposed in respect of count 1. Counsel for the applicant did not contend otherwise. The main reason why such an increase was called for was because the first matter on the Form 1 document, namely the digital penetration of SW by the applicant was a most serious offence which, of itself, required a not insignificant increase in the sentence for count 1. Indeed, as counsel for the applicant conceded, it could easily have been the subject of a separate count in the indictment. As it happens, the court was informed that that offence, together with the other two Form 1 matters, had originally been the subject of separate counts before agreement was reached between the parties that the matter should proceed in the manner in which it did. 25Also to be taken into account was the final matter on the Form 1, namely the aggravated indecent assault. That offence arose from the applicant's conduct in using his fingers to display the interior of SW's vagina. As I indicated, his Honour concluded that that offence was committed "without photographing anything" and that "the photographing of the body of the victim after the event is ... not part of the same criminal activity, albeit that the two are temporally close". The applicant's conduct consisted of the actions, which constituted the aggravated sexual assault, as well as his actions in photographing, at the same time, those acts. In short, the applicant simultaneously committed two offences. The applicant does not complain that his Honour erred in arriving at that conclusion. The complaint is not that the offence appeared on the Form 1 document, but that the same conduct was then relied upon by his Honour in determining the objective gravity of the second count. In written submissions, counsel for the applicant developed the argument in the following fashion: When considering the objective seriousness of the second count, [his Honour] said that although it was at the bottom of the range of objective seriousness, it is essentially aggravated by the offender's use of his fingers to display the interior of the complainant's vagina. The use of the offender's fingers in the complainant's vagina in taking the photographs was the very subject of the ... offence on the Form 1 already taken into account to increase the length of the sentence for count 1. In so doing, his Honour has inadvertently "double counted" that factor to increase the sentence ultimately imposed on the Applicant. ... 26His Honour concluded, as I have observed, that count 2 lay "at the bottom of the range of objective seriousness". The imposition of a total term of 2 years imprisonment for this offence, as against the maximum penalty of 14 years, appears to reflect his Honour's view. However, his Honour's reference to the intrusive nature of some of the photographs, and particularly those in which the applicant use his fingers to splay open the vaginal canal, certainly suggests that that conduct served, at least to some extent, to increase the seriousness of the offence. That appears to be implicit in his Honour's remark that "the offending is more serious than merely taking photographs of a naked child". Allowing for the fact that the explicit nature of the photographs needed to be taken into account in assessing the criminality in respect of count 2, it does appear nevertheless that there has been an element of "double punishment" in the sense in which that expression was employed in Pearce (supra). 27The remaining matter on the Form 1 document was the offence of producing child pornography. The Court Attendance Notice described the offence as being one of "produce a pornographic image of the complainant's vagina" (emphasis added). The facts make it clear however that the offence relates to 23 photographs in all. As I have said, the conduct which gave rise to count 2 was constituted by the applicant's actions in taking the photographs of SW's vagina. That, it was submitted, mirrored conduct which was contemplated by the Form 1 offence of producing child pornography. 28In a submission which was received after judgment was reserved, the Crown appears to effectively concede the point. It was pointed out that a more appropriate charge may have been "possess child pornography". Although I accept that this was the least serious of the three matters which appeared on the Form 1 document, nevertheless, I am once again of the view that this matter falls within the principles identified in Pearce (supra). 29In due course, I will return to consider the consequence of the conclusions at which I have arrived. Ground 3 30The submission ultimately advanced by counsel for the applicant, in respect of this ground, was that although the "offending encapsulated a 'single episode of criminality'" some measure of accumulation between the two counts was required but that "it should be a matter of months, and nothing as great as 12 months". Even accepting that the offence of using a child for pornographic purposes represented, as the Crown contended, a "discrete aspect of criminality", it was submitted that there was still a considerable degree of overlapping between it and two of the matters on the Form 1. 31As I have said, I am persuaded that there does appear to have been a measure of "double counting" particularly bearing in mind the manner in which the offences to which I have referred are inter-connected. For that reason, I am of the view that the court should intervene and proceed to re-sentence the applicant. For that purpose, I have had regard to the affidavit evidence of the applicant, his sister and his father. That material reveals that the applicant retains the support of two important members of his family and that he has been furthering his education at a tertiary level. There are other matters, the details of which it is unnecessary to record, which suggest that his time in prison is more burdensome than may otherwise be the case. 32I would not be disposed to alter the individual sentences which were imposed. In my view, the overall circumstances can best be met by reducing the period of accumulation between counts 1 and 2 from 12 months to 6 months. Orders 33I propose the following orders: 1 Grant leave to appeal. 2 Allow the appeal (in part). 3 Confirm the sentences imposed in respect of counts 1 and 2. 4 Quash the order that the sentence in respect of count 1 is to commence on 16 September 2009. In substitution therefore, order that the non-parole period of 4 years and 2 months in respect of count 1 is to commence on 16 March 2009 and is to expire on 15 May 2013 and that the balance of the term of 2 years and 6 months is to expire on 15 November 2015. 5 The applicant is eligible for parole on 15 May 2013.