Rampe v R

Court of Criminal Appeal (NSW)|2018-07-16|Before: Beazley P, Hulme J, Button J

Solicitors: Ross Hill & Associates Solicitor for Public Prosecutions File Number(s): 2015/288904 Decision under appeal Court or tribunal: District Court Date of Decision: 30 March 2017 Before: Sutherland SC DCJ File Number(s): 2015/ 288904

Judgment

BEAZLEY P: I have had the advantage of reading in draft the reasons of R A Hulme J. I agree with his Honour's reasons and proposed orders."

Grounds of appeal

The applicant seeks leave to appeal on the following grounds: 1. His Honour erred in his failure to assess the objective criminality in relation to the indicative sentences. 2. His Honour failed to set non-parole periods with respect to those offences that attracted standard non-parole periods. 3. His Honour imposed a sentence that was unreasonable or plainly unjust (for reasons that may not be able to discern) and the sentences are manifestly excessive.

The offences

The offences occurred in the period from about 10 October 2014 to 2 October 2015. The victim of the 30 offences was aged 9 at the beginning of that period but for most of it she was aged 10. She was the daughter of a woman with whom the applicant was in a relationship and they had a daughter of their own who was born in 2010.
The offences came to light when a woman took a laptop computer to her local police station. Police saw Facebook communications between the woman's sister-in-law ("W") and the applicant in which there were discussions about committing serious sexual assaults upon their own children. The conversation was on and off over a period of about two weeks.
On 15 September 2015 the applicant sent W a video file of the applicant having filmed himself indecently assaulting the victim. She was in her school uniform but naked from the waist down. The applicant had his hand on her buttocks and could be heard instructing her to position herself so as to enable him to film her anal and genital region at close range. This activity constituted offences of using a child under 14 to make child abuse material; disseminating child abuse material; and indecently assaulting a child under 16.
Police attended the applicant's home on 2 October 2015 and arrested him for the possession of child abuse material. They seized his computer, mobile phone and other digital devices. The applicant's partner later gave to police an external hard drive belonging to the applicant on which she had seen a large amount of child abuse material.
Police downloaded data from the applicant's mobile phone. It contained images of the victim in close up photographs of her genital region; of her posing for the applicant in ways that exposed her genital and anal region, including using her hands to expose them better for the camera; and of her anus with the applicant's erect penis pressed against it. In relation to the latter there was also a video recording made at about the same time with the victim squatting and the applicant inserting his penis in her vagina. At the end of the video the applicant said, "It's good for you".
An examination of the applicant's laptop computer revealed a number of similar videos and still images. The videos include the applicant rubbing his fingers on the outside of the victim's vagina on a number of occasions. There were also multiple occasions when he inserted a finger or his tongue into her vagina or her anus. The still images were mainly of the victim's genital and anal region and on some occasions the applicant was touching her in those areas.
Police also found a quantity of child abuse material of unknown children and offenders on the laptop. This constituted the offence of possessing child abuse material that was taken into account. The statement of facts uses the Child Exploitation Tracking System (CETS) scale to classify the material: Category 1 Sexually suggestive posing with no sexual activity Category 2 Non-penetrative sexual activity between children, or solo masturbation by a child Category 3 Non-penetrative sexual activity between adults and children Category 4 Penetrative sexual activity between children or adults and children Category 5 Sadism, humiliation or bestiality Category 6 Animated or virtual depictions of children engaged in sexual poses or activity.

There were estimated to be at least 57 child pornography videos on the laptop. A sample of 22 files were graded as falling within each of CETS 1 to 5; 59% were in CETS 4 and 5% in CETS 5.
More child abuse material was found on an internal hard drive: at least 298 video files and at least 284 images. They ranged across each of CETS 1 to 5 with 32% in CETS 4 and 21% in CETS 5.
More was found on an external hard drive: at least 350 video files and at least 68 images. They ranged across CETS 1 to 4 with 42% in the highest of those categories.
More detail concerning the individual offences is available below in the discussion of Ground 1.

The applicant's background and personal circumstances

Counsel for the applicant drew attention in her written submissions to the following aspects of his background and personal circumstances.
He was born in 1983 and so was aged 31-32 at the time of the offending. He was the middle child of his parents' three children. After his parents divorced when he was about 8 years of age he remained in the care of his mother.
A report by Ms Chelsea Dewson, forensic psychologist, noted that despite his parents having a poor relationship and engaging in a lot of verbal arguments, the applicant had a generally positive developmental experience prior to his parents' separation. The separation was a disruptive phase so far as his schooling and social endeavours were concerned and he had difficulty connecting in any lasting sense with his peers.
When the applicant was aged 11 his mother remarried and his stepfather joined the family unit. The applicant had a positive relationship with him.
The applicant described to the psychologist having witnessed two suicide attempts by his mother. The first occasion was when he was aged 7 and he was the person who discovered her in an unresponsive state. The second attempt occurred when he was aged 13. The applicant found this difficult to cope with. I note that Ms Dewson wrote that "these events were traumatic; they underlie the nature of his mother's mental health concerns and they would have had some, and likely a significant, impact on the developmental trajectory".
The applicant described being sexually abused as a child of 12. The report indicates that he said this was from a female family member but he could not recall the details, except that it happened on two occasions. He coped with it by "pushing it aside"; suppressing the memory of it. The applicant provided more details when giving evidence at the sentence hearing. The judge said he had "a degree of healthy scepticism about whether [he was] satisfied that the abuse described did in fact occur".
The judge noted the applicant's education and employment history as set out in the report. He had attended nine primary schools and two secondary schools. He excelled at secondary school once he had settled into a stable school. He left prior to the higher school certificate. He worked in a factory and then in nightclubs with security and crowd control. His longest period of employment was for eight years as a casual contractor in the security industry.
The judge said that he accepted the applicant's expressions of remorse as genuine, although he followed this immediately by expressing doubt about whether the applicant fully appreciated the gravity of his conduct and the effect it would, and will, have upon the victim.
The judge did not state a specific finding as to the applicant's rehabilitation prospects or as to his likelihood (or otherwise) of reoffending. He did, however, discuss a number of matters relevant to these topics. They included that he noted the psychologist's assessment that the applicant was a low to moderate risk of reoffending but considered that "it falls closer to moderate than low". I infer that his Honour was not satisfied that the applicant's prospects of rehabilitation and not reoffending were good, but he saw reasons for some hope nonetheless.

Ground 1 - failure to assess objective criminality in relation to the indicative sentences

The written and oral submissions by counsel for the applicant in relation to this ground can be distilled to three points: 1. The judge erred by not stating an assessment of where each offence fell on a scale of objective seriousness for offences of the type. 2. There was an escalating level of objective seriousness. 3. The specification of the same indicative sentences for many of the offences was the basis of an inference that the judge failed to make an individual assessment of criminality in the offences.
In relation to the first point, counsel for the applicant cited authorities for the proposition that an assessment of objective seriousness of offences is essential to sentencing. So much may be readily accepted. No authority was cited for a proposition that a judge will be in error if he/she does not rank the seriousness of the offending on a scale.
In relation to the second point, counsel contended that the judge "didn't reflect the increase in the gravity starting from an appropriately low base and differentiating it through". She argued that the judge found that there was a gradual process of sexualisation of the child by the applicant and thereby an increase in the objective gravity of the offending over time.
The third point followed from the second. The asserted finding of escalating criminality was not reflected in the indicative sentences which, with the exception of the s 66C offence which was last in time (Sequence 14 on 2 October 2015), reflected a uniform penalty. Lesser indicative sentences should have been imposed for the earlier offences because they were less objectively serious.

Consideration

It is appropriate to provide some more detail about the offences so that their objective seriousness may be more fully appreciated. The offences can be organised into 14 groups as set out chronologically below. That does not mean that there were 14 occasions of offending as counsel for the applicant asserted. The first in the list below is a "rolled-up" charge involving 16 occasions on which the applicant took photographs of his stepdaughter. Some of those days were also the subject of discrete charges. In all, there were 27 occasions of offending in the course of a year. 1. Between 10 October 2014 and 7 August 2015 - a rolled up charge involving 16 instances of using a child under 14 to make child abuse material - numerous photographs taken of the child's anal and genital region on 15 separate occasions: six occasions in October-December 2014; five occasions in January-March 2015; one occasion in April 2015; and 3 occasions in July-August 2015. 2. 8 February 2015 - using child to make child abuse material and indecent assault of a person under 16 - six images focussing on the child's vagina; in one the applicant is touching the vagina. 3. 12 February 2015 - use child to make child abuse material and indecent assault of a person under 16 - four images of the child with her legs spread and the applicant touching the outside of her vagina. 4. 27 February 2015 - use child to make child abuse material and indecent assault of a person under 16 - two videos of the applicant rubbing his fingers on the outside of the child's vagina. 5. 22 March 2015 - use child to make child abuse material and indecent assault of a person under 16 - three photographs of the child with her legs apart focussing on her vagina - the applicant touches the inside of her thigh to pull her legs apart. 6. 28 March 2015 - use child to make child abuse material and indecent assault of a person under 16 - a series of photographs focussing on the child's anus and vagina - the applicant is touching the outside of her anus. 7. 21 April 2015 - use child to make child abuse material and aggravated sexual intercourse with child aged 10-14 - a video of the applicant rubbing his fingers on the outside and inserting his fingers into the child's vagina. 8. 26 April 2015 - two offences of using a child to make child abuse material and two of aggravated sexual intercourse with child aged 10-14 - an image of the child's pyjama pants being pulled down and a close up photograph taken of her genital region as well as two videos of the applicant inserting a finger and his tongue into the child's vagina. 9. 27 April 2015 - use child to make child abuse material and two offences of aggravated sexual intercourse with child aged 10-14 - a video of the applicant inserting his finger into the child's anus and another video of him inserting his finger and then his tongue into her anus. 10. 8 May 2015 - use child to make child abuse material and indecent assault of a person under 16 - a series of images of the applicant pulling the child's buttocks apart and taking photos of her anus. 11. 26 July 2015 - use child to make child abuse material - an image of the child exposing her vagina. 12. 15 September 2015 - use child to make child abuse material; disseminate child abuse material; and indecent assault of a person under 16 - a video of the child wearing a school uniform but naked from the waist down; the applicant had his hand on her naked buttocks as he filmed; he instructed her to bend over; close up filming of her anal and genital region; the child uses her hands to manipulate herself to permit close up filming. This material was sent to W (see above at [13]). 13. 29 September 2015 - use child to make child abuse material - a series of images taken on the applicant's bed showing the child in different poses with her pants down exposing her buttocks and anus. 14. 2 October 2015 - use child to make child abuse material; aggravated sexual intercourse with child 10-14; and indecent assault of a person under 16 - images of the child in the applicant's bedroom with her pants pulled down and on her hands and knees with the applicant's erect penis pressed against her anus - other images show her exposed vagina and anus - also a video recorded on the same occasion of the child standing naked above the applicant's erect penis - she squatted and the applicant inserted his penis in her vagina - the applicant said, "sit down so it doesn't hurt" and at the end, "it's good for you".
It is not the case that the judge said nothing about the objective seriousness of the offences as the statement of the ground might imply. There was a discussion of pertinent matters in some detail. His Honour referred to the following matters: 1. The age of the victims in the context of the age element of the offences. 2. The degree to which the applicant exploited the youth of the victim. His Honour noted that the child was the applicant's stepdaughter and they lived in a domestic relationship together with other family members. The applicant was in a position of authority and there was a breach of trust; although his Honour was expressly careful to avoid double-counting of such matters. 3. There was an ongoing sequence of offending against a member of the applicant's own family; his stepdaughter. The harmfulness of such offending upon a child victim is well-recognised in the authorities as a feature that renders such offences so serious. 4. There was a "development of increased criminal conduct over what was a prolonged period of time". It progressed from recording indecent images of the child to indecent touching and then the various acts of penetration. The frequency of such conduct waned for a time but then the worst came at the end with the instance of penile/vaginal intercourse. It was only the intervention of the police on 2 October 2015 that brought to an end the applicant's "ongoing and obviously substantially exacerbated on that date, criminal conduct".
The judge indicated the sentences he would have imposed for each offence in the event he were not imposing an aggregate sentence (pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act. They were: ● Use child to make child abuse material (s 91G(1)(a)) - 3 years for each but 4 years for the "rolled-up" offence (10.10.14-7.8.15). ● Disseminate child abuse material (s 91H(2)) and taking into account the offence of possessing child abuse material on the Form 1 - 4 years. ● Indecent assault of a child under 16 (s 61M(2)) - 3 years for each. ● Aggravated sexual intercourse with a child 10-14 years of age (s 66C(2)) - 6 years for each the five offences on 21, 26 and 27 April 2015 and 10 years for the sixth offence on 2 October 2015.
The point was made in R v Van Ryn [2016] NSWCCA 1 at [135] that it is important for there to be some assessment of the seriousness of an offence for a number of reasons, one being the requirement that a sentence should not exceed, or be less than, what is proportionate to the gravity of the crime.
In the present case, the judge set out the facts relating to each of the offences in considerable detail and later referred to particular matters that were relevant to an assessment of their objective seriousness. In some cases this has been held to be sufficient: see, for example, Delaney v R; R v Delaney [2013] NSWCCA 150 at [56]; Ridgeway v R [2016] NSWCCA 184 at [20]-[21]. It is appropriate to note that in the course of submissions in this case there was no suggestion that the judge should have made findings as to objective seriousness by reference to a range. The submissions were confined to an identification of factors that were relevant to objective seriousness which is much the approach seen in his Honour's judgment.
An approach which requires a judge to rank offences according to where they might fall on a scale between most and least serious examples of their type might well involve greater transparency; but it is a lot to ask of a judge sentencing for a large group of offences of this type. There is a question as to the utility of spelling out assessments in such terms, particularly where in this case there was not that much difference in the gravity of the indecent assault offences or of the sexual intercourse offences except for the last one. Accordingly, the fact that the indicative sentences are with only the one exception identical is unsurprising and not indicative of error.
Cases in which judges have been criticised for adopting a "broad-brush" or "blanket" approach in the nomination of indicative sentences such as R v Brown [2012] NSWCCA 199 and R v Nykolyn [2012] NSWCCA 219 involved the judges not really making an independent assessment in relation to each offence. But where there is little or no variation in the level of criminality in the various offences the assessment of the same indicative sentence for multiple offences does not indicate error: see, for example, R v NT [2015] NSWCCA 136 at [65]-[66]; Riggio v R [2015] NSWCCA 223 at [86].
In the present case it can be seen from the indicative sentences that the judge adopted a discriminating rather than "broad-brush" approach. Perhaps there might have been more discrimination in relation to the s 91G(1)(a) offences given the earlier recorded images did not involve the touching and penetrative activity as the later recorded images did. But there comes a point at which one cannot expect a counsel of perfection at the price of pedantry. Here, the making of the material might have been more serious because it depicted that activity, but there was the additional charging of indecent assault or sexual intercourse offences that covered most of the additional criminality. In the end, the critical issue is that with which Ground 3 is concerned; not whether some indicative sentences could have been shorter or longer because the objective seriousness of the offences could have been assessed in an even more discriminating (and perhaps tedious) fashion.
This is not to underestimate the importance of assessing the relative gravity of offences and determining indicative sentences in a discriminating rather than broad-brush manner. However, as Simpson J (as her Honour then was) observed in R v NT (at [25]), "the ultimate question is directed to the aggregate sentence imposed" and as Garling J observed in Riggio v R (at [87]), "the question for consideration by this Court is whether the aggregate sentence which was imposed was erroneous".
Counsel for the applicant provided only one practical example of how the judge should have discriminated between the various offences in assessing their objective seriousness but it involved a misunderstanding of what the judge said. As described earlier (at [33]), it was said that the judge found there was an increase in the gravity of offending over time. It is correct that the judge said something to this effect but he was not talking about an increasing gravity of a particular type of offence. Rather, he was speaking about the gravity of the episodes of the applicant's offending. He noted that there was photographing or filming in late 2014-early 2015; it progressed in February 2015 to indecent touching as well; it further progressed to digital and oral penetrative activity from April 2015; and culminated in an offence involving penile/vaginal intercourse on 2 October 2015.
The submissions of counsel for the applicant proceeded upon a misapprehension of what the judge had said in this respect. The major premise upon which this ground was argued was not soundly based.
This ground should be rejected.

Ground 2 - failure to set non-parole periods for offences that attracted standard non-parole periods

It is common ground that the judge failed to comply with the requirement in s 54B(4) of the Crimes (Sentencing Procedure) Act. The requirement is that where a standard non-parole period is prescribed for an offence a judge imposing an aggregate sentence must (in addition to a head sentence) indicate for such an offence the non-parole period that would have been set if separate sentences had been imposed.
At the outset of the hearing of the application, counsel for the applicant all but abandoned this ground because, she said, her attention had been drawn by the Crown to Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 at [214]-[218] and JM v R [2014] NSWCCA 297; 246 A Crim R 528 at 40.
In the circumstances there is nothing to discuss. Even if this ground were to be upheld it would have no practical effect upon the outcome of the application.

Ground 3 - manifest excess

In Obeid v R [2017] NSWCCA 221; 350 ALR 103 at [443] I provided a summary of the principles which must be considered when there is a ground of appeal asserting that a sentence is manifestly excessive: "When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. ● Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases. ● Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error. ● It is not to the point that this Court might have exercised the sentencing discretion differently. ● There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle. ● It is for the applicant to establish that the sentence was unreasonable or plainly unjust."
The written submissions by counsel for the applicant in relation to this ground were confined to this: "The sentences are manifestly excessive particularly given a. the matters attracted a 25% discount for the pleas of guilty b. that there is one victim of activity c. there was no violence in the offences d. his honour assessed a moderate level of risk e. there was no relevant Criminal History f. many of the offences occurred at the same time"
In the oral submissions, counsel identified a number of further features: 1. The age of the applicant; a relatively young man. 2. No relevant prior offending. 3. Clear expressions of remorse. 4. The applicant had been in employment for most of his life. 5. A possibility for rehabilitation.
When asked about the relevance of the applicant being a "relatively young man", counsel indicated it was that the sentence is "one that is crushing" and that "the sentence that's been applied is disproportionate to the offending as occurred". These are just different ways of stating the ground of appeal; they do not provide a reasoned basis to conclude that it should be upheld.
There was a mild attempt to raise a question as to whether the judge had (correctly) discounted the indicative sentence by 25% on account of the applicant's pleas of guilty as opposed to (incorrectly) discounting the aggregate (see PG v R [2017] NSWCCA 179). The judge expressly indicated that he was adopting the correct approach.
Notwithstanding the favourable matters identified by counsel that must be considered in the applicant's favour, sight must not be lost of the fact his offences constituted a monstrous course of sexual exploitation of his stepdaughter for his own gratification over a period of a full year when she was 9 and 10 years of age. There were 30 offences. Their maximum penalties ranged from 10 to 20 years. Some of the offences had prescribed standard non-parole periods which ranged from 6 to 9 years.
It must not be forgotten that the judge was also asked to take an offence into account which involved the applicant possessing at least 1000 still images and videos of sexual abuse of an unknown number of unknown children. A substantial number of the images and videos were graded in the worst categories (involving penetrative sexual activity, sadism, humiliation and bestiality).
Nothing less than a substantial aggregate sentence could properly reflect the totality of the applicant's criminality and serve the essential purposes of denouncing his conduct, making him accountable for his actions and deterring him and others from engaging in such conduct in the future.
The sentence is not manifestly excessive.

Orders

I propose the following orders: 1. Leave to appeal against sentence granted. 2. Appeal against sentence dismissed.
BUTTON J: I agree with R A Hulme J.
With regard to ground 3: the aggregate sentence, whilst undoubtedly lengthy, is condign. In the circumstances of this case, it is not beyond the discretion reposed in the learned sentencing judge.

Endnote

Crimes Act, s 578A, and Children (Criminal Proceedings) Act 1987 (NSW), s 15A.

Amendments 08 August 2018 - [44] typographical error DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 August 2018

Crimes Act 1900(NSW)ss 61M(2), 66C(2), 91G(1)(a), 91H(2), 578A

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