R v Propsting [2009] VSCA 45

Court of Appeal (Vic)|2009-03-05|Before: BUCHANAN and VINCENT JJA

CRIMINAL LAW - Sentence - Possession and production of child pornography -Aggravated burglary - Intentionally causing serious injury - Breach of intervention order - Sentencing judge erred in sentencing appellant as a serious offender and finding that offences were revealed without first alerting counsel to the issue - Appellant re-sentenced.

Mr S Ward, Acting Solicitor for Public Prosecutions

1 I will ask Vincent JA to deliver the first judgment in this matter.

2 The appellant pleaded guilty in the County Court at Warrnambool to two counts of possession of child pornography (counts 1 and 3), one of producing child pornography (count 2), one of aggravated burglary (count 4), and two of intentionally causing serious injury (counts 5 and 6). He also pleaded guilty to two charges which had been uplifted from the Magistrates' Court, arising from breaches of an intervention order. He had two findings of guilt and 16 previous convictions from eight court appearances between 9 November 1993 and 10 November 1996.

3 The sentencing judge summarised his criminal history as follows:

Your prior offending includes alcohol and drug offences, street offences, two charges of being in possession of a regulated weapon, using a firearm without a licence, wilful damage, one count of intentionally or recklessly causing injury, and one count of causing injury intentionally. Most importantly, on the last time you were before the court in November 1998, you faced charges of false imprisonment and committing an indecent act with a child under 16, as well as intentionally damaging property and the possession of cannabis. On that occasion you were sentenced to a total of nine months' imprisonment. I am told that the charges of false imprisonment and committing an indecent act with a child under 16 arose when you went to a house in Portland looking for a woman who had an eleven-year-old daughter who was alone at the time in her home. You attacked this girl by grabbing her, and then rubbed her groin and asked her to have sex with you. When she ran away you tore the phone off the wall of the house so that she could not contact anyone, then ran away yourself.

4 After hearing a plea in mitigation of penalty, the judge, on 23 August 2007, imposed upon the appellant the following sentences:

Count 1, possession of child pornography: 6 months' imprisonment, which was used as the base sentence.

Count 2, producing child pornography: 2 years' imprisonment.

Count 3, possession of child pornography: 18 months' imprisonment.

Count 4, aggravated burglary: 12 years' imprisonment.

Count 5, intentionally causing serious injury: 5 years' imprisonment.

Count 6, intentionally causing serious injury: 4 years' imprisonment.

Summary charge 6, breach intervention order: 6 months' imprisonment.

Charge 8, breach intervention order: 12 months' imprisonment.

His Honour made orders for cumulation, creating what he obviously intended to be a total effective sentence of 16 years, although his orders may not have had that effect. He fixed a non-parole period of 12 years.

5 Having been granted leave by a judge of this Court, the appellant appeals against the individual sentences, the total effective sentence imposed and the non-parole period fixed.

6 The appellant was aged 29 years to 31 years at the time of the offending. He was aged 32 years at the time of sentence. As a result of a police investigation in 2005, a raid was conducted on the appellant's home in Portland, where a total of 183 pornographic images of girls between the ages of two and fifteen years were located. The girls were either naked or partially naked and some were in explicit poses and engaging in sexual activity with males. Subsequent examination of the hard drives from the computer seized by the police revealed that they contained hundreds of images of child pornography. Possession of these materials constituted the basis for count 1.

7 In relation to count 2, the police also discovered two short video clips of a woman and a little girl of approximately five years of age undressing. The appellant could be heard in the background reassuring the child that there were no batteries in the camera and that he was not taking pictures. The child depicted had been attending a local shire run child care facility operated by the appellant's de facto partner's mother since the child was eight months old, and, when she reached school age, she attended there after school and during school holidays. The offence was committed on an occasion on which the appellant's de facto partner asked the mother of the child whether the little girl could come to her home to play with the appellant's child. Once at the house, the child was instructed to change out of her clothing and to try on some underpants and track suit pants that the appellant had bought for his son. It was during this time that the photographs and short video clips were taken.

8 Count 3 relates to another instance of possessing child pornography. On this occasion, between 1 December 2006 and 19 January 2007, and while the appellant was awaiting finalisation of the earlier laid charges, the appellant had a second computer with hundreds of images and films depicting children, mainly females aged between five and ten years of age who were either naked or partially naked. Some of them were in sexually explicit poses with naked adult males or engaging in sexual activity with other children or adult males. The further offending came to light as a result of the appellant asking his parents to store the computer and four hard drives at their home. Whilst collecting the computer items, the appellant's mother and father found 22 printed photographs, 11 of them containing child pornography and depicting girls and boys aged approximately five to ten years of age, naked in sexually explicit poses and engaging in sexual activity with adult males and a young boy. The appellant later admitted that the computer images and video footage were his.

9 The remaining counts related to activities that took place on 19 January 2007. Following the discovery in 2005 of the video clips of the little girl from the child care centre, an intervention order was taken out against the appellant to protect the child and family involved. What later occurred was described by the sentencing judge as follows:

On the evening of 19 January 2007, after a considerable bout of drinking, [the appellant] contacted Ms Butler, his de facto partner, by telephone and SMS text messages. Initially his calls related to a dispute between the appellant and Ms Butler regarding access to his daughter the following day. In a series of text messages beginning at 6.51 p.m., the appellant told Ms Butler that if he could not have her he was going to the home of the child referred to in count 2 to fuck her, rape her, maybe stab her, and that he had a knife and that he was on his way to her home. At approximately 9.45 on this evening, he was seen driving past the child's home on two occasions, and in a text message to Ms Butler at 9.50 he stated that he was at the child's house and could see her asleep in bed. This was not the first time he had breached the intervention order, because at about 9 p.m. on 20 December 2006 he had been seen by a neighbour parked opposite the child's home.

[He subsequently told the police that he had watched her house as he was infatuated with the little girl.]

The text messages to Ms Butler continued until 10.09 p.m. Just before midnight on that day he drove to the child's address and on this occasion he had armed himself with a baseball bat, a carving knife and a torch. He went to the laundry door at the side of the house which was locked, then cut the flywire screen of the window beside the door, opened the window and then unlocked the door. The appellant then walked directly along the passage where the bedrooms were located. Asleep in the main bedroom of the house were the parents of the child. Their two daughters, aged eight and six, were asleep in their own rooms. From previous contact with the parents, the appellant was aware that the eyesight of the father was severely restricted. The parents were awakened by a noise and could see light coming from the vicinity of the daughters' bedroom. The mother of the children got out of bed to investigate and, as she turned into her daughters' bedroom, the appellant confronted her and struck her several times to the head and torso with the baseball bat, forcing her backwards out of the room. She screamed out to her husband, who heard her cry and then got out of bed and tried to pull his wife out of the way. The appellant struck him to the head with the baseball bat. The appellant then pushed past him and then went to the dining area of the house, dropping his torch on the way. The appellant there waited for the father to appear from the passageway and struck him across the face with the baseball bat, causing him to fall to the floor bleeding heavily. The appellant then fled, throwing the baseball bat over a garden fence.

10 There is no need to set out or address the specific grounds upon which reliance was intended to be placed in support of the appeal, as the Crown has conceded that the judge fell into error in more than one respect. It was accepted that his Honour sentenced the appellant on count 5 as a serious violent offender, when this was not the case under the law. Further, he made findings that offending by paedophiles such as the appellant was prevalent and notorious. These findings were made without raising these issues with counsel for the appellant on the plea and accordingly raised a serious question concerning whether natural justice had been accorded to the appellant. There was also a problem arising from the form of his Honour's orders with respect to cumulation which did not appear to be capable of implementation in the manner that his Honour had indicated. The Crown also conceded that the judge ought to have treated the sentence on count 4 as the base sentence for the purposes of cumulation, it being the longest sentence imposed. While this would appear to have been the most appropriate course to adopt in the circumstances, the fact that the sentencing judge chose another sentence for the purpose would not of itself, of course, vitiate the sentence or constitute error.

11 However, and notwithstanding the more significant defects, counsel for the Crown argued that the appeal should be dismissed as this was not a situation in which the imposition of a different sentence was called for. This contention cannot be accepted.

12 The errors made by the sentencing judge were material to the determination of the sentences handed down by him, there was a problem about whether or not the orders as made by the judge could be implemented as reflected his intention. In that situation, the exercise of sentencing discretion must be regarded as having miscarried. Accordingly, I consider that the appeal should be allowed and the appellant re-sentenced.

13 I have earlier set out the judge's findings concerning the circumstances surrounding the commission of the offences. I now turn to the appellant's personal background. It is sufficient, I think, to set out the relevant portion of the judge's sentencing remarks. His Honour said this:

The detailed psychological report from Ms Elizabeth Warren dated 3 July 2007 (Exhibit 2) and the psychiatric report of 13 July 200 by Dr Sullivan, psychiatrist (Exhibit 1) show that you have deep-seated and long-standing psycho sexual problems alongside problems of alcohol and drug abuse.
Dr Sullivan sums up the situation at paragraph 14 of his report where he says, and I quote:
'His background is severely affected by family breakdown followed by migration from Tasmania to Victoria. His schooling was marked by academic difficulties and poor friendships. He describes sexual abuse as a teenager. In his teens he developed substance use problems and has since then had periodic drug and alcohol problems, an unsettled lifestyle and few sustained relationships, along with intermittent psychiatric contact in crisis, and related to the psychiatric effects of substance use and episodic thoughts of self-harm.'
Dr Sullivan says that you suffered from polysubstance dependence which over the years has involved not only alcohol but almost all known illegal drugs, but apparently over the four years or so prior to these offences you had weaned yourself off drugs and alcohol to a large extent. He says that you told him that these offences were committed after a significant lapse of binge drinking.
He diagnosis you as a heterosexual paedophile with a morbid preoccupation for the child ... and says that these offences, that is those of 19 January 2007, occurred due to disinhibition related to alcohol use, anger and heightened sexual drive.
Ms Warren considers you to have a high risk of reoffending with a potential for extreme violence if accompanied by alcohol, intoxication dependence and abuse. This was, no doubt, because you had told her, quite frankly, you were alarmed at the way in which you had acted and you were pleased that [the child's mother] woke up and prevented you from acting 'on any intention regarding the young girl.'
You told her that you had feelings of intense love and sexual attraction towards the young girl and that the imposition of the intervention order led you to fear that she was being removed from you and that you recalled feeling 'anger towards them', that is her parents, 'that they had a daughter like that, that is a daughter that could tempt you to act on your urges in a manner in which you had previously been able to control. Like Dr Sullivan, she has diagnosed you as a paedophile. She said that you had honesty, insight and a desperate desire to change your ways. You told her you wanted to change if you can and she finds that you have been frank with her rather than seeking to minimise your problems.
She thought you were a good candidate for pharmacological treatment as well as other behavioural retraining.
Dr Sullivan was of the view that you were also candid in describing your problems and that you were motivated to address them. He thought that you would require the high intensity sex offenders program and violence reduction program, both of which you will be provided whilst you are in custody. In addition, he thought you needed long-term drug and alcohol counselling and that you should seek to totally abstain from substance abuse in the future, given your long-standing problems of offending whilst intoxicated.
He says that before you are released into the community you will require a further assessment to decide whether you should be given antilibidinal medication if your deviant sexual arousal persists.
Over the years you have been treated by mental health professionals, first for learning difficulties and then for substance abuse, aggression, anxiety and sexual deviation as well as attempts at self-harm. You have been hospitalised on a number of occasions, both voluntary and involuntary.
Ms Warren found you to have a generally sound intellectual ability and Dr Sullivan agrees. Both say you are co-operative, honest and frank and have insight into your sexual deviation with a strong desire to change your ways. Despite this, your history dictates that pedophilia remains an almost unsurmountable obstacle for you.
By age 18 you said that you decided that you were not homosexual but had developed an attraction to very young girls. Despite that you had a number of relationships with adult women and a son [T] was born of one such relationship on 14 February 2002.
The relationship with Ms Butler produced a daughter born on 10 August of 2006. You obtained full-time custody of [T] in November of 2004. You describe the period that you lived with Ms Butler and the two children as, and I quote, 'the happiest' in your life and I refer to Ms Warren's report. Notwithstanding this, you were unable to shake your sexual attraction to prepubescent girls. You were attracted to children's clothing catalogues and then used the internet to obtain the pornographic images to which I have referred to and despite your 'happy domestic situation' by 2005 you had become infatuated with [the child].
Melissa Butler said in her statement to the police that in 2005 you revealed to her that you had a sexual fascination for [the child]. She says that before that you told her in general of your sexual tendencies towards young children. She said that she told you to get help for this perversion, but you failed to do so.

14 Unsurprisingly, but having regard to the appellant's endeavours since his arrest, the judge assessed his chances of rehabilitation as slim. The offending in which the appellant engaged was undisputedly extremely serious. As her Honour pointed out, the possession of the child pornography encompassed by count 1 involved taking advantage of the exploitation of young children for the appellant's personal gratification. The production of child pornography in count 2, in addition to that feature, involved a serious breach of trust. Count 3 was committed whilst the appellant was waiting to be dealt with for those offences and must be viewed as having been committed in circumstances of aggravation. Count 4 was described by her Honour as falling into the worst category of home invasion, on the basis, inter alia, that:

This was a calculated, premeditated crime carried out against an innocent family asleep in their own house, and it was committed with savagery and brutality against the parents. Mercifully the children, although traumatised, were not physically injured. The offence was committed in furtherance of a depraved fixation you had over a six-year-old girl. The two charges involving breaching the intervention order were carried out by you with the full knowledge of the sanction imposed by the order and indeed you had a copy of the order in your car with you when you drove to the scene.

15 Acknowledging that the conduct of the appellant was, to use his own counsel's terms, 'truly outrageous' and 'a parent's worst nightmare', it was submitted that, nevertheless, to place it in the worst category of home invasion was inappropriate. I disagree. There is a stage at which conduct becomes so egregious that it must be regarded as being of a kind attracting the imposition of a very substantial, if not the maximum, penalty for the commission of the offence involved regardless of whether a more serious example could be imagined. That could well describe the behaviour with which we are concerned here.

16 It was also submitted that care must be taken not to sentence the appellant for what might have occurred had he not been detected by the child's parents.. There is, of course, some force in that contention, but, as counsel for the Crown responded, when the level of culpability to be attributed to an individual for the offence of aggravated burglary is under consideration, the purposes and circumstances of entry can hardly be ignored; indeed, they are incorporated within the offence itself. The stated intention of the appellant in the present case was to rape and possibly stab a six-year-old child who was asleep in the safety of her own and her parents' home. That must be regarded as extraordinarily serious.

17 The consequences to the unfortunate family have been also very serious indeed. The parents have sustained physical injury and financial loss. The lives of all have been disrupted and all have experienced and can be expected to continue to suffer severe emotional and psychological impact well into the future. The simple reality is that the appellant has changed their lives forever. As I have had occasion to remark more than once, when considering the notion of rehabilitation, that of the victim of an offence may often be much more difficult to achieve than that of the perpetrator.

18 By any measure, the offences involved here must attract the imposition of substantial sentences. There is little, if anything, in the circumstances that can be seen to mitigate them. The appellant did, however, express remorse, gave himself up to the police and indicated that he would plead guilty at an early stage. Each of these matters must be taken into account in his favour. It is also necessary to have regard to the circumstances under which the appellant will be required to serve his sentence. By reason of the nature of his offending, he has been and is likely to remain detained in the foreseeable future under a very strict protection regime. He has limited opportunities to see his own child and will remain unable to avail himself of whatever rehabilitative opportunities and programs exist within the prison system. I note with some disquiet that it is likely to be some time before he is able to participate in any sex offenders program, for example. It is to be hoped that this situation will be addressed and better arrangements made.

19 It hardly needs to be stated that the sentencing objectives of denunciation, protection of the community and general and specific deterrence are all important sentencing considerations in this case, and it must not be forgotten that, as earlier mentioned, the appellant has a significant criminal history and that, in 1998, he falsely imprisoned and attacked an eleven-year-old girl with whom he wanted to have sex. Whilst it has become necessary by reason of the errors made by the sentencing judge to reconsider this matter, I have concluded that for most of the offences the same individual sentences should be imposed.

20 I would allow the appeal, set aside the sentences imposed in the court below, and re-sentence the appellant as follows:

I would direct that 18 months of the sentence imposed on each of counts 5 and 6 and 12 months of that imposed on count 3 be served cumulatively upon each other and

upon the sentence imposed on count 4. The sentences on count 1 and charges 6 and 8 would by operation of law be served concurrently with that imposed on count 4. This would create a total effective sentence again of 16 years, and I would again fix a non-parole period of 12 years. The appellant has been sentenced as a serious sexual offender on counts 2 and 3 and a serious violent offender on count 6, and the appropriate registration declaration would also need to be made.

2. The sentences passed below are set aside and in lieu thereof the appellant is sentenced to be imprisoned for a term of six months on count 1, for a term of two years on count 2, for a term of 12 months on each of counts 3 and 4, for a term of four years on each of counts 5 and 6 and for a term of six months on each of counts 6 and 8.

3. Eighteen months of the sentences imposed on each of counts 5 and 6 and 12 months of the sentence imposed on count 3 are to be served cumulatively upon each other and upon the sentence imposed on count 4.

4. By operation of law the sentences on count 1 and the summary charges are to be served concurrently with the sentence on count 4.

6. A period of 12 years' imprisonment is fixed before the appellant is to be eligible for parole.

7. The appellant has been sentenced as a serious sexual offender on counts 2 and 3 and as a serious violent offender on count 6.

8. It is declared that the appellant must continue to comply with the

reporting obligations imposed by Part 3 of the Sex Offenders Registration Act 2004 for the remainder of his life.

9. The orders made below for the taking of a sample and confiscation are confirmed.

Offenders Registration Act 2004

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