R v PG

R v PG - [2020] NSWDC 144 - NSWDC 2020 case summary — Zoe

[4]

The Facts and objective seriousness of each offence

The offender was born on 21 November 1951. The offending occurred between 24 November 2018 and 31 January 2019 so the offender was approximately 67 at the time of the offending.The victim was the 8-year-old daughter of a friend of the offender. The offending occurred predominantly at a Seventh-day Adventists church where the victim's father had invited the offender to attend.
This factor raised a debate concerning the extent to which the offending was made more serious by reason of an abuse of a position of trust or authority in relation to the victim (section 21A(2)(k)) and sub section (l) where the victim is vulnerable because of their age. My view is that there is little work for subsection (l) to do in circumstances where the element of the s66DA offence is the child to be under 10. It is more relevant to the other offending involving the victim as that element is not present, and so it adds to the seriousness of the offence than if, say the child was 12. It is a matter I take into account as adding to the seriousness of the offending.
As to the authority/trust argument, in my view the offending is made more serious by the offender being a friend of the victim's father, having been invited into the church by the victim's father, and then in a place of worship where a child would be unsuspecting to an even greater extent than her young age may otherwise dictate, to be subject to these acts is clearly a breach of trust. I have taken this into account. I do not consider the offender was relevantly in a position of authority.
In a similar vein there was argument concerning the application of section 21A(5A). The question here is whether the good character of the offender assisted in the commission of the offending.
In support of his argument Mr Behan for the offender relied upon AH v R [2015] NSWCCA 51. In that case the offender was the de facto partner of the mother of the victim. It was not a case of the standing in the community of the offender that had aided in enabling the offending. The argument here for the offender is that for reasons not detailed in any way in the facts the offender was a friend of the victim's father and invited to the church. The reasons for the friendship and the invitation to the church are not known. In my view they could plainly be reasons unassociated with the character of the offender and indeed in a church situation it may be a person's lack of good character that forms part of the motivation for the invitation. It is not necessary to take the hypothesising that far. It suffices to say that there is nothing on the facts that supports the view that the offending of the offender was assisted by his good character. I accept the submission of the offender in this regard.

[6]

Form 1 matters

In determining the sentence for this offence it is necessary to take into account sequence 6 and sequence 2 which are respectively produce child abuse material and possess child abuse material. Each such offence has a maximum penalty of 10 years with no standard non-parole period. Sequence 6 is a close-up image of the victim at the beach focusing on her buttocks while she is bending over. It is not stated as to whether she is wearing clothing or swimming bathers and I would have to therefore assess it on the basis that clothes were worn, as to take something into account adverse to the offender requires it to be demonstrated beyond reasonable doubt. I would assess this as in the low range of objective seriousness. The second matter of possess child abuse material relates to 10 naked images of a second victim (the offender's niece) apparently under the age of 10 on the offender's phone some of which expose the child's genitals. Some of these photos were taken in a normal family holiday context which were then provided to the offender on a USB stick. The victim's mother, the daughter of the offender says there would be no need for the accused to have the images on his phone and their presence is entirely inappropriate. There was one image she considered inappropriate which she had not given to her father. On this count I find it difficult to see why it is appropriate to have a photograph on a USB stick obviously for keeping and viewing but not appropriate to have it on a phone where many people store photographs, yet it is also said these photos are of genitals. If allowance is made for the fact that, despite the apparent intimate nature of some of the photos, they were provided "innocently" by way of a USB stick, there is left only one photograph it is said to be inappropriate and not provided by the child's mother. Given the agreed facts are as to the 10 images which apparently include the one not given by the daughter the matter needs to be assessed considering all of those images and I do so. My view is that it is in the low range. Bearing in mind the Form 1 procedure set out below I will take these matters into account when determining the sentence for the sexual touching charge. On the basis of these facts there would not be much greater penalty imposed in respect of the sexual touching.

[13]

Standard non-parole period

In respect of the state offences under section 66DA and section 91G there are standard non-parole periods of 8 years and 6 years respectively. By section 54A(2) the standard non-parole period represents the non-parole period for an offence that taking into account only the objective factors affecting the relative seriousness of that offence is in the middle of the range of seriousness.
I have assessed both sequence 1 and sequence 5, being the offences just mentioned, as being in the low range so that by the above provision this standard non-parole period is not applicable. Nevertheless in line with the High Court decision in Muldrock I consider it necessary to take into account the standard non-parole period as a guidepost for offending that is in the mid range as being a factor indicative of the seriousness with which the legislation views this offending
At [29] of Muldrock it was said that Division 1A requires sentencing judges to state fully the reasons for arriving at the sentence imposed. In discussing what was required by section 54B(4) which was to the same effect as the current section 54B(3), the Court said that "the obligation applies in sentencing for all division 1A offences regardless of whether the offender has been convicted after trial or whether the offence might be characterised as falling in the low middle or high range of objective seriousness for such offences". The obligation being referred to was the central purpose of division 1A, to require sentencing judges to state fully the reasons for arriving at the sentence imposed.
In complying with the obligations of Division 1A as I am attempting to do here there will be noted the fact of the early guilty plea. The reasons for a variance from the standard non-parole period will include that fact as well as the obvious fact that the period does not apply to the offending as assessed by me. There is also the other subjective factors that may be relevant as discussed below.

[15]

Psychological report

The background of the offender was set out in a psychological report of Patrick Sheehan dated 17 December 2019. He is of French origin and his family circumstances were positive. He reported an occasion of non-penetrative sexual abuse upon him at the age of 10 by an older male and denied any other trauma in his early development. He came to Australia as a 19-year-old. He worked throughout his adult life in various occupations and retired 4 years ago and reports financial hardship since that time. He described himself as a bit of a loner and since the offending has had no social supports.
He has been married twice with one daughter to the first marriage and two to the second marriage. The younger daughters continue to support him. The second marriage ended in circumstances of some stress.
His interest in child pornography started about 2008 with the interest in cartoon images developing from his long interest in comic books. Reluctantly he acknowledged some interest in female children sexually. The psychologist views his insight into his sexual history as being undeveloped. There is no significant substance use issues. He has an unremarkable health history. His mental health has been stable apart from the period of the breakdown of his secondmarriage. About this time and leading up to the offending he would appear to have been suffering from depression.
The view expressed by the psychologist is that the offender suffers a form of relapsing adjustment disorder and also would technically meet the criteria for paedophilic disorder.
In terms of the actual offending the offender protested that he had no idea why he did it and said he was awfully sorry and so remorseful. He gave some reasons for the offending (not the sexual touching offence) such as not knowing it was a crime and that he did not think that it would be harmful as no actual victim was involved. He says he will never do it again.
The conclusion of the psychologist is to consider the offender in the low or below-average risk category for sexual reoffending.

[23]

Comparable cases

In Taylor v R [2020] NSWCCA 46 the Court of Criminal Appeal found error with a sentencing judge's reasons but not with the ultimate sentence arrived at. The difficulty with comparable cases as is well recognised is that no case is the same as another with each case having its own particular characteristics. With that reservation this case does provide some assistance. For an indecent assault charge similar to sequence 1 in the present case there was touching of breasts over the clothing and an indicative sentence of 2 years with a non-parole period of 16 months was suggested. There were however no section 91H offences.
In R v Gavel [2014] NSWCCA 56 considered a number of offences including under section 91H. At [92] the court noted the increase in the maximum penalty in 2009 from 5 years to 10 years imprisonment and noted the sentencing council's statement that the increase would serve to emphasise the need for denunciation and general deterrence. In Gavel an indicative sentence of 4 years with 3 years non-parole period was stated. The appeal judgement does not give great detail as to the types of images but indicates there were a substantial number of them with some involving animals. Furthermore there were 2 further 91H matters taken into account on a Form 1 the details of which are not set out.
R v Porte [2015] NSWCCA 174 considered offences of accessing child pornography contrary to section 474.19 of the Commonwealth criminal code and of possessing child abuse material contrary to section 91H of the crimes act. I note the Commonwealth offence is similar in terms to the present section 474.22 charge.
In relation to the possession charge there were a total of more than 34,000 images. They fell into each of the 6 categories on the CETS scale of objective seriousness with the vast majority of them being in category 1, the lower or lowest category. The facts in relation to the access charge were that some 48 child pornography videos had been accessed and some 17 images.
The court noted that offences for child pornography warrant substantial penalties with general deterrence and denunciation being paramount considerations. The Court went on to observe that possession of child pornography material creates a market for the continued corruption and exploitation of children; at [67]. The Court also noted that courts have stressed that that possession of child pornography is not a victimless crime: at [68].
A helpful table of sentencing decisions concerning possession and accessing charges is found at [152]. What is notable about those cases is that they each contain a great many more images and as far as is disclosed would appear to be of a more serious degree of image. I have borne those comments and sentences in mind in seeking to impose the appropriate sentence in this case.

[26]

Sentencing considerations

There is no argument but that there is no appropriate sentence other than a full-time custodial sentence; section 5 of the CSPA and s17A of the Commonwealth Crimes Act.
Section 3A sets out the purposes of sentencing. They are in short: 1. to ensure the offender is adequately punished; 2. both general and specific deterrence; 3. to protect the community; 4. to promote rehabilitation of the offender; 5. to make the offender accountable for his actions; 6. to denounce the conduct; 7. to recognise the harm done to the victim and community.
The Commonwealth legislation does not contain an express statutory statement of the purposes of sentencing in the same manner as section 3A. I have nevertheless adopted the same principles which can be found in the common law.
In relation to the child abuse material offences as noted above the purposes of sentencing which are most applicable are those of denunciation and general deterrence. In this case the subjective case of the offender was not of great persuasion however given there is a conceded justification for special circumstances due to it being the first time in custody for the offender that will allow him an additional period of supervision which may aid in his rehabilitation and minimising the prospects of reoffending.
In this case each of the offenses is serious as indicated by the maximum sentences and where relevant, the statutory non parole period. So much goes without saying. Yet objectively the offences themselves are below the mid range of objective seriousness. That does not mean they are trivial; the sexual touching seems quite aggressive, and as to the images, albeit predominantly cartoons, they are clearly abusive and numbered more than 10,000. It is this type of behaviour that needs to be deterred and denounced, and there is also the need for punishment and specific deterrence given the questionable insight of the offender.
As indicated earlier in these reasons I propose setting a sentence for the Commonwealth offence, and to then proceed by way of an aggregate sentence in respect of the state offences.

[27]

Indicative sentences

It remains to set a sentence for the Commonwealth offence and then to set out indicative sentences for the state offending and where appropriate what the non-parole period would have been if the charge is 1 with a standard non-parole period.
In respect of all of the offences the sentence stated takes into account the 25% discount for the guilty plea.
In respect of the Commonwealth offence which is sequences 7 there will be a 12 month sentence with no non-parole period. I do not set a non-parole period as I consider that suggestion made by the Crown to be appropriate when there is to be following that 12 month term the state offending sentences which will carry a non-parole period which will in turn take into account the fact of the 12 month sentence of the Commonwealth offence having predated that sentence. I note that in the scheme of things this is a low sentence however where the facts do not reveal the extent of the accessing of the material and the fact that they are largely if not exclusively of cartoons was a significant factor in coming to this conclusion. Whilst this conduct is to be condemned for promoting abuse, it does not create victims in its production.
I note that the offender has been in custody since 31 January 2019 and the term of this sentence will therefore be to date from 31 January 2019 and expiring on 30 January 2020.
In relation to the sexual touching offence there will be a indicative sentence of 2 ½ years imprisonment. This takes into account the 2 Form 1 offences. As there is a standard non-parole period I indicate that the non-parole period would have been 20 months. This is at variance with the standard non-parole period because the offence is in the low range of objective seriousness and there is also the 25% discount for a guilty plea to take into account.
In respect of sequence 3 possessing child abuse material I note there were 6 images. On the facts these were not images that the offender had created but were taken by the victim on, it is suggested without contradiction, her own accord. It seems obvious that that would have occurred either directly or indirectly at the encouragement of the offender however the case was not presented in that way so I do not make that finding adverse to the offender. The sentence will also be impacted by the fact the images are not described, beyond being classified as child abuse material. There will be a 6 month sentence.
In respect of the s91G charge, sequence 5, as noted above the matter is difficult to assess due to the brief description of it on the facts. The number of photos is not known, and seems likely not to be great, and there is one victim. There is of course the need for general deterrence and denunciation. For these reasons there will be a 9 month indicative sentence. Being a standard non-parole period matter I indicate the non-parole period would have been 6 months for the same reasons as in relation to the sexual touching charge.
In relation to the possess child abuse material charge (sequence 8) I note on the one hand the significant number namely more than 10,000 images but also that the vast majority of them were cartoons. This does not prevent the promotion of an industry founded on the idea of children being abused. Whilst I found the offending to be in the low range of objective seriousness that was a fine judgement. Bearing in mind all of the above considerations there will be an indicative sentence of 2 years.
Bearing in mind the one-year imprisonment in respect of the Commonwealth offending and bearing in mind also the principles of totality I propose that there be an aggregate sentence of 4 years and a non-parole period of 2 years. These sentences will commence from 31 January 2020. The structure of this sentence will therefore mean there will be a minimum period of 3 years imprisonment and an overall effective head sentence of 5 years reflecting the acceptance of the argument for special circumstances, an argument which is added to by the lack of a non parole period for the Commonwealth offence.

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Judgment (29 paragraphs)

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Cases Cited (9)

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