R v Katon

CATCHWORDS: CRIMINAL LAW - Sentencing - Crown appeal - Manifest inadequacy of sentences - Sexual intercourse with child under 16 - Acts of indecency with child under 16 - Possession of child pornography - Using child for pornographic purposes - Sentences imposed to be served concurrently and partially concurrently - Whether structuring of sentences failed to reflect number and seriousness of offences - Whether total effective sentence reflected totality of criminality involved in offences

Pearce v The Queen (1998) 194 CLR 160 R v AJP [2004] NSWCCA 434 R v Cotter [2003] NSWCCA 273 CASES CITED : R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 R v KM [2004] NSWCCA 65 R v Knight (2005) 155 A Crim R 252 R v Wall [2002] NSWCCA 42

PARTIES: The Crown (Appellant) James Rodney Katon (Respondent)

COUNSEL: D Arnott SC (Appellant/Crown) C T Loukas (Respondent)

SOLICITORS: Director of Public Prosecutions (Appellant/Crown) Legal Aid Commission of NSW (Respondent)

IN THE COURT OF CRIMINAL APPEAL 2007/12009

McCLELLAN CJ at CL HISLOP J HOEBEN J

THURSDAY, 2 OCTOBER 2008 R v KATON, James Rodney Judgment 1 McCLELLAN CJ at CL: This is a Crown appeal. The respondent was convicted of three counts of sexual intercourse with a child under 16, two counts of committing an act of indecency on a child under 16, two counts of possession of child pornography and two counts of using a child for pornographic purposes. There were five matters on a Form 1. The offences involved three victims: WC, DD, and LT. 2 The sentencing judge imposed sentences in relation to each offence. Some sentences were made concurrent and some partly concurrent. The overall sentence was 5 years imprisonment with a non-parole period of 3 years. 3 The Crown contends that the sentences imposed are manifestly inadequate. The fundamental issue is that by providing for a number of the sentences to be served concurrently the sentencing judge failed to impose a sentence which is sufficient punishment for the number and seriousness of the offences involved.

Count 1 Act of indecency with person under 16 years, namely 13 years: section 61N(1) Crimes Act 1900; maximum penalty imprisonment for 2 years [victim - WC].

Count 2 Sexual intercourse with a person under 16 years, namely 13 years: section 66C(1) Crimes Act 1900 [since amended]: maximum penalty penal servitude for 8 years. [victim - WC].

Count 3 Sexual intercourse with person under 16 years, namely 14 years: section 66C(1) Crimes Act 1900 [since amended]: maximum penalty penal servitude for 8 years [victim - WC].

Counts 4 and 5 Possess child pornography: section 91H(3) Crimes Act 1900: maximum penalty imprisonment for 5 years.

Count 6 Use child under 18 years, namely 14 years, for pornographic purposes: section 91G(1)(a) Crimes Act 1900 [since amended] maximum penalty imprisonment for 5 years [victim - DD].

Count 7 Act of indecency with person under 16 years, namely 15 years: section 61N(1) Crimes Act 1900: maximum penalty imprisonment for 2 years [victim - LT].

Count 8 Use child under 18 years, namely 15 years, for pornographic purposes. Section 91G(1)(a) Crimes Act 1900 [since amended]: maximum penalty imprisonment for 5 years [victim - LT].

Count 9 Sexual intercourse with person between 14 and 16 years, namely 15 years: Section 66C(3) Crimes Act 1900: maximum penalty imprisonment for 10 years [victim - LT]. 4 The respondent also asked that five matters be taken into account on a Form 1 in relation to count 9. They were three counts of an act of indecency with a person under 16 years (s 61N(1) Crimes Act 1900), one count of goods in custody (s 527C(1)(c) Crimes Act 1900) and one count of possess ammunition without a licence (s 65(3) Firearms Act 1996). One of the acts of indecency was committed on WC in 1998 and two of the acts of indecency were committed on LT in 2004. 5 No standard non-parole periods apply to the offences. 6 The offences occurred between September 1998 and February 2007. The sentencing judge observed that for some offences the maximum penalties when they were committed were less than is now provided by the relevant legislation. The sentencing judge determined that the respondent should be sentenced in accordance with the maximum penalties relevant at the time of the offence and in accordance with the sentencing principles which existed at that time. However, it is apparent in her remarks on sentence that her Honour erroneously identified the maximum penalty for count 9 as being 8 years imprisonment rather than 10 years.

Count 1 Imprisonment for a fixed term of 1 year commencing 2 March 2007 and expiring 1 March 2008.

Count 2 Imprisonment for a fixed term of 2 years commencing 2 March 2007 and expiring 1 March 2009.

Count 3 Imprisonment for 3 years 4 months and 2 weeks, commencing 2 March 2007 and expiring 15 July 2010, with a non-parole period of 2 years expiring 1 March 2009.

Counts 4 and 5 Imprisonment for 2 years 3 months commencing 2 September 2007 and expiring 1 December 2009, with a non-parole period of 18 months expiring 1 March 2009.

Count 6 Imprisonment for a fixed term of 1 year commencing 2 September 2007 and expiring 1 September 2008.

Count 7 Imprisonment for a fixed term of 1 year commencing 2 March 2008 and expiring 1 March 2009.

Count 8 Imprisonment for a fixed term of 18 months commencing 2 March 2008 and expiring 1 September 2009.

Count 9 Taking into account the Form 1 matters, imprisonment for 4 years commencing 2 March 2008 and expiring 1 March 2012, with a non-parole period of 2 years expiring 1 March 2010. 7 Table A on Annexure "A" to these reasons illustrates the length of sentence and the extent of concurrence and accumulation. The total effective sentence was therefore 5 years, with non-parole period of 3 years.

The facts 8 The respondent lived in a "granny flat" adjacent to his father's residence. He first met the complainant WC in October 1998 when WC was 13 years old. WC attended the respondent's flat having been made an offer of work doing odd jobs. He was also promised work as the respondent's offsider when he bought a truck. After a couple of visits to the respondent's property, the respondent told WC that he had to be at ease being naked in front of him and told WC to take his clothes off. WC did this. After a while the respondent told him he could get dressed again. 9 Count 1: The following day the respondent again asked WC to get undressed. This time, however, the respondent took hold of WC's penis and held it for a while. He asked WC "is this all right?" to which WC just shrugged. After a while the respondent let go and told WC he could get dressed. 10 Count 2: A few days later the respondent again asked WC to get undressed and then took hold of WC's penis. The respondent asked "can I put my mouth over it?" to which WC just shrugged. The respondent performed fellatio on WC and then after a while rubbed WC's penis with his hand until WC ejaculated, which the respondent caught in his mouth. 11 Count 3: In spring 1999 WC went on an overnight fishing trip with the respondent. During the night, the respondent fondled WC's penis before performing fellatio until WC ejaculated. 12 Shortly thereafter, WC confronted the respondent about the fact that the offsider position had not materialised. They argued and WC did not return again. Although WC told his girlfriend about the relevant events in 2002 and police in 2003, he did not make a formal complaint until August 2006. 13 Count 4: On 5 February 2007, the police executed a search warrant at the respondent's flat. Police located eight video cassettes, which revealed images recorded in the respondent's flat by a hidden camera, showing teenage boys and on one occasion, a pre-pubescent boy. Each would come into the room and undress until partially or fully naked, while the respondent remained clothed. Some boys only appeared once; others appeared a number of times over the course of days. After undressing, the respondent appears to ask them to do various things like running on the spot or stretching. Footage includes some boys fondling themselves or masturbating, or the respondent touching or masturbating the boys. Other footage includes the respondent performing fellatio on LT (see count 9) or making extended examinations of the boys' genitals. Some of the boys clearly appear uncomfortable. 14 One of the boys in the video footage was identified as DD. DD met the respondent in 2003 when he was 13, and since that time had gone to the respondent's house to work for him a number of times a week. DD was also promised work as the respondent's offsider once the truck was purchased. 15 Count 6: In late 2004 when DD was 14 the respondent told him that if he was to be his offsider he would have to be comfortable being naked around him, and took DD to the room with the hidden camera. The respondent invited DD to remove his clothes, which he did. The respondent asked DD to sit on a chair, which resulted in DD's genitals being in full view of the camera. He was then asked to perform a number of (non-sexual) tasks. The video runs in excess of 2 hours. 16 Another boy identified in the footage was LT. The respondent conducted his relationship with him in the same way as he did with WC and DD. The footage covers at least 4 separate days. The first recording shows LT undressing in front of the hidden camera and then jogging on the spot. The second recording shows the same thing, except on this occasion the respondent also fondles LT's penis for several minutes. This matter was included on the Form 1 in relation to count 9, below. 17 Counts 7 and 8: The third recording shows LT undressing and lying on the floor. The respondent sits next to him and masturbates him until he is erect. He then asks LT to jog on the spot, before asking him to lie down again. He then lifts LT's legs as if in a stretching motion, the effect of which is to expose LT's anus directly to the camera. 18 Count 9 (and Form 1): There was further footage, which covered over 3 hours. LT pulls down his pants and the respondent fondles his penis. He placed his mouth over LT's penis for a few seconds, and then laughed and moved to a position where he appeared to kiss LT. The respondent then continued to fondle LT's penis and again placed his mouth over LT's penis for a few seconds. He did this on a number of occasions. He also conducted similar stretching exercises as he had done previously. 19 The respondent was interviewed by police and indicated among other things that some of the boys on the tapes may have been 14 or 15 years old, that the recordings were for his own use and were never shown or distributed to anyone else. He said, although it is not apparent how this is the case, that the tapes were made as a means of protecting himself should these young people ever make any unsubstantiated allegations against him.

Subjective features of the respondent 20 The respondent is currently 45 years of age. A number of reports, and a letter written by the respondent, were tendered at the sentence hearing. As a child he suffered physical and emotional abuse at the hands of his mother and also from classmates at schools. He was sexually assaulted on a number of occasions between the age of 7 (when his parents separated) and 16. He made a number of suicide attempts and began using sedatives, alcohol and other drugs. He had only sporadic employment and was often unemployed. He had had a number of operations on his spine after a work injury, and also experienced chronic neck and back pain. He was married in his early 20s but that only lasted about a year, and he had no other successful adult relationship. He is bisexual and fantasised about both male and female adult partners. 21 The respondent maintained that the offences occurred when he was under the influence of amphetamines, cannabis, and prescribed medications. He expressed regret and remorse for his actions. 22 A psychologist's report from Mr W John Taylor found that the respondent had a personality disorder and suffered from depression, low self-esteem, and that when engaged in substance abuse his impulse "controls would then be weakened and he would have a low threshold for hostile or erotic discharge". Also, the respondent "is socially inhibited and is likely to distance himself from other people through fear of being harmed in some way … he is rather passive … [and] would generally find it very difficult to establish relationships which could meet those needs [for nurturance, acceptance and approval], which may result in the formation of inappropriate relationships". Mr Taylor found that the respondent had a low to moderate risk of recidivism. 23 The Crown tendered a pre-sentence report, which included an interview with his parents. His father called the respondent a "manipulative and secret person" and his mother remarked that the respondent "possessed a propensity to abundantly and excessively lie". The respondent told the author of the report that he did not recall the offences and apparently said that the only reason he conceded he committed the offences was because he had witnessed the video footage of himself. He believed his memory loss was based on excessive benzodiazepine use.

Remarks on sentence 24 The sentencing judge found that although the respondent had no criminal history this was "of little assistance to him." Her Honour found that he was raised in circumstances "which can only be described as tragic for him." However, her Honour concluded that neither his upbringing nor his apparent substance abuse were an excuse for his offending behaviour. 25 Her Honour was satisfied that the respondent had demonstrated remorse and contrition. However, she was guarded about his prospects for rehabilitation stating that "to some extent, I find he is still demonstrating a propensity to minimise his criminality." Her Honour identified that these types of offences must attract a penalty which includes a significant component for general deterrence. 26 Her Honour was satisfied that the respondent had pleaded guilty at the first available opportunity and accordingly provided a 25% discount for his pleas of guilty. Her Honour also found special circumstances, a finding which the Crown prosecutor conceded was open to her Honour.

Submissions 27 The Crown submitted that her Honour's sentencing remarks revealed a number of discrete errors.

1. The sentencing judge erred by failing to impose sentences in accordance with the principles enunciated by the High Court in Pearce v The Queen (1998) 194 CLR 160.

2. The sentencing judge erred in erroneously identifying the maximum penalty for count 9 as 8 years when it was 10 years.

3. The sentencing judge erred in failing to assess the objective seriousness of counts 4 and 5 being the possession of child pornography offences pursuant to s 91H(3).

4. The sentencing judge erred in reducing the non-parole period for special circumstances to 60%. 28 The Crown's fundamental complaint is with respect to the extent of accumulation of the individual sentences. The effect of the commencing dates for each sentence determined by her Honour is that the only effective sentences are those imposed for counts 3 and 9. The other individual sentences are wholly subsumed by these sentences (see table to [7] above). 29 When sentencing her Honour decided to group each of the offences depending upon the particular victim. Accordingly, the sentences for counts 1 to 3 which involved WC are all concurrent. Counts 4 and 5 which relate to possession of videos of child pornography and computer material of child pornography were grouped with count 6 which relates to DD. The sentences for counts 7 to 9 relate to LT and were made concurrent although partly cumulative. 30 Although the groupings which her Honour chose can be explained by the identity of the individual victims the Crown submitted that this approach ignores the fact that some of the offences upon each of the victims were committed over a significant period of time and were not all part of the one episode of criminality. The first group of offences on WC occurred over an 18 month period with intercourse occurring between 1998 and late in 1999. The third group of offences committed on LT happened on a number of different occasions and not on the same day. It was submitted that if her Honour was to approach the sentencing exercise by providing entirely for concurrency of sentences within groups of offences on each of the victims, she ought to have ensured that accumulation between the groups of offences was significant enough to ensure that the overall sentence accurately reflected the totality of the offending. The Crown submitted that her Honour had failed to achieve this objective with the consequence that the overall sentence failed to adequately reflect the totality of the criminality involved. 31 The Crown emphasised that where there are a series of offences, with different victims, there is a special need to ensure that concurrency does not have the consequence that the overall sentence is inadequate. The relevant principles are to be found in R v Hamid [2006] NSWCCA 302 at [133]; 164 A Crim R 179; R v KM [2004] NSWCCA 65 at [56] and R v Cotter [2003] NSWCCA 273 at [69]. 32 The Crown further submitted that her Honour had failed to apply the settled principle that when there are discrete offences in relation to different victims the sentences should be accumulated. In R v Knight (2005) 155 A Crim R 252 Johnson J said at [112]: "It is necessary to fix an appropriate sentence for each offence and then consider questions of accumulation, concurrence and totality. The total effective sentence must represent a proper period of incarceration for the totality of the criminality involved: R v AEM (at [70]); R v Kalache (2000) 111 A Crim R 152 at 184. The mechanism of making some sentences cumulative and others concurrent (or partly so) may be used where the aggregate of sentences imposed in respect of each count exceeds the appropriate total sentence: R v Myers [2002] NSWCCA 162 at [34]. At the same time, it is necessary to ensure public confidence in the administration of justice by imposing sentences which do not suggest that multiple offences will be punished in the same way as one or two offences: R v Wheeler [2000] NSWCCA 34 at [36]-[37]." 33 The Crown submitted that the only effective sentences for all nine counts were those imposed for counts 3 and 9. Even then the concurrency with respect to those counts is such that the non-parole period for count 9 begins half way through the non-parole period for count 3. The respondent is left without any penalty at all in relation to 7 of the 9 counts for which he was sentenced. Of greatest concern is the fact that there has been no effective penalty at all for the second group of offences being the possession of child pornography or the criminal activity associated with the victim DD. 34 The Crown emphasised that the offences were serious. There were multiple victims involved with a series of criminal acts in relation to different victims. The sentencing judge found there was considerable planning by the respondent in enticing the victims to his home, setting up the video camera, assaulting the victims and ultimately recording what took place. The respondent's conduct occurred over a very significant period of time and involved victims who were vulnerable because of their age and the relationship of trust created by the respondent. 35 Her Honour found the objective seriousness of the offences of sexual intercourse to be within the mid-range of objective seriousness. She found the indecent assault to fall above the mid-range and the use of victims for pornographic purposes also to be above the mid-range of objective seriousness. 36 In relation to counts 4 and 5 her Honour made no finding in relation to objective seriousness. The Crown submitted that the appropriate finding was that they were in the high end of seriousness. The videos in count 4 were not obtained from outside sources downloaded from a computer. The respondent was actually responsible for creating them. In relation to count 5 some of the children were depicted in sexual acts and one was bound and gagged and subject to torture. There were thousands of images obtained over a lengthy period of time. The Crown submitted that the sentence imposed for this group of offences (2 years and 3 months imprisonment with a non-parole period of 18 months) is itself manifestly inadequate. When included as part of the second group of offences which included count 6 the inadequacy is further emphasised. The maximum penalty for each of counts 4, 5 and 6 is 5 years imprisonment. 37 Count 9 fell to be determined under the sentencing regime which commenced operation on 13 June 2003: R v AJP [2004] NSWCCA 434. Section 66C was amended and an increased penalty of 10 years was introduced for the offence of sexual intercourse with a person above the age of 14 years and under the age of 16 years. Although during the course of the sentencing hearing the correct penalty had been identified, her Honour when sentencing referred to s 66C(1) and a maximum penalty of 8 years imprisonment instead of 10 years. 38 In her submissions the respondent's counsel drew attention to the well recognised principles relevant to a Crown appeal. They were summarised by Wood CJ at CL in R v Wall [2002] NSWCCA 42. I need not repeat them. Although a Crown appeal should be rare and confined to establishing matters of principle for the guidance of sentencing courts nevertheless an appellate court may interfere to avoid manifest inadequacy or inconsistency in sentencing. 39 The respondent submitted that the sentences which her Honour imposed were not inadequate either individually or in total. Although it was accepted that the overall sentence was modest it was submitted that it fell within the appropriate range. Although the Court's attention was drawn to some previous decisions it was acknowledged that they may not be of particular assistance. It was accepted that each case depends on its own circumstances. 40 With respect to the Crown's challenge to her Honour's finding of special circumstances it was submitted that at the sentence hearing the concession was made that such a finding would be appropriate. It was submitted that by reducing the non-parole period to 60% her Honour only provided a modest reduction in any event. 41 Notwithstanding that this Court must exercise considerable caution before intervening where there is a Crown appeal against sentence I have no doubt that intervention is required in the present case. The facts relating to the various offences disclose a course of serious criminal conduct over a number of years. That conduct involved the sexual abuse of 3 individual victims. In the ordinary course there should be a recognition of that separate offending by at least partial accumulation of the sentences (see Knight). By grouping counts 4, 5 and 6 together and imposing sentences which were made concurrent with other sentences the respondent received no effective punishment for these offences. Both counts 4 and 6 were very serious offences. The police located 8 video cassettes which showed teenage victims engaged in various sexual activities. Count 5 related to more than 1,000 images of pre-pubescent victims contained in a computer with many thousands of other images on computer discs. Count 6 involved the victim DD who was invited to remove his clothes and when he did was secretly filmed for at least 2 hours. One of the counts on the Form 1 related to the victim LT who was also secretly filmed, including an occasion when he was indecently assaulted by the respondent. 42 Having regard to the serious criminality involved in counts 4, 5 and 6 I am satisfied that even if the offences were appropriately grouped, about which I have significant reservations, the sentence should have been structured so that an identifiable period of imprisonment related to those offences. 43 The maximum penalty for count 9 was 10 years, although her Honour in her remarks on sentence suggests that she understood it to be 8 years. It is unclear whether this error has affected the sentencing process, although that would appear likely. 44 Apart from count 9 the Crown argued that a number of the individual sentences were inadequate. This criticism is made in particular of count 6 where, although the maximum penalty is imprisonment for 5 years, her Honour imposed only a fixed term of 1 year. To my mind there is considerable force in the submission. However, mindful of the fact that this is a Crown appeal I would not propose any change to that sentence. I have reached the same conclusion with respect to the sentences imposed in relation to counts 8 and 9 which the Crown also criticised as being manifestly inadequate. To my mind the inadequacy can be adequately addressed by adjusting the relationship between each of the sentences to provide a greater period of fulltime custody. I would maintain her Honour's finding of special circumstances. The respondent was entitled to the discount of his sentences for his early plea. 45 The orders I propose are: 1. Appeal upheld. 2. Quash the sentences imposed on 4 April 2008 in the District Court and impose the following sentences: Count 1: Imprisonment for a fixed term of 1 year commencing 2 March 2007 and expiring 1 March 2008. Count 2: Imprisonment for a fixed term of 2 years commencing 2 March 2007 and expiring 1 March 2009. Count 3: Imprisonment with a non-parole period of 2 years commencing 2 June 2007 and expiring on 1 June 2009 with a balance of term of 1 year, 4 months and 2 weeks expiring 15 October 2010. Count 4: Imprisonment with a non-parole period of 18 months commencing 2 August 2008 and expiring 1 February 2010 with a balance of term of 9 months expiring on 1 November 2010. Count 5: Imprisonment with a non-parole period of 18 months commencing on 2 October 2008 and expiring 1 April 2010 with a balance of term of 9 months expiring on 1 January 2011. Count 6: Imprisonment for a fixed term of 1 year commencing on 2 July 2009 and expiring on 1 July 2010. Count 7: Imprisonment for a fixed term of 1 year commencing on 2 November 2009 and expiring on 1 November 2010. Count 8: Imprisonment for a fixed term of 18 months commencing on 2 January 2010 and expiring on 1 July 2011. Count 9: Taking into account Form 1 matters: imprisonment with a non-parole period of 2 years commencing 2 March 2010 and expiring on 1 March 2012 with a balance of term of 2 years expiring on 1 March 2014.

Accordingly, the overall sentence will be a total non-parole period of five years commencing 2 March 2007 and expiring on 1 March 2012, with a balance of term of 2 years expiring on 1 March 2014.

46 Table B on Annexure "A" illustrates the relationship of these sentences. 47 HISLOP J: I agree with McClellan CJ at CL. 48 HOEBEN J: I agree with McClellan CJ at CL and the orders which he proposes.

16/10/2008 - Count 8: expiry date for sentence should read 2011 not 2012. - Paragraph(s) [45] and cover sheet and annexure A

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.