Regina v P.A.M.

COUNSEL : (Applicant): P R Boulten/C Salsone (Crown): P Hock SOLICITORS : (Applicant): S K & Associates (Crown): S E O'Connor CATCHWORDS : SENTENCING - Severity appeal - sexual offences involving young children - whether judge erred in declining to set a non-parole period. LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 CASES CITED: R v Thomson; R v Houlton [2000] NSWCCA 309 Veen v The Queen [No 2] (1988) 164 CLR 465 DECISION : See paragraph 39

BARR J CARRUTHERS AJ Friday 24 November 2000

1 CARRUTHERS AJ: P.A.M. seeks leave to appeal against the alleged severity of sentences imposed upon him by his Honour Kirkham DCJ at Armidale District Court on 28 April 2000. 2 The applicant had earlier pleaded guilty to an indictment containing three counts (counts 1, 4 and 5) under s 61O(2) of the Crimes Act 1900 as amended (to which I shall hereinafter refer to as "the Act") being an aggravated act of indecency. 3 This offence carries a maximum penalty of seven years imprisonment. He also pleaded guilty to two counts (i.e. counts 2 and 3) of aggravated indecent assault under s 61M(2) of the Act. This offence carries a maximum penalty of ten years imprisonment. 4 He further pleaded guilty to two counts (i.e. counts 6 and 8) of use child for pornographic purposes under s 91G(1) of the Act. This offence carries a maximum penalty of seven years imprisonment. 5 The offences were committed over the period of 1 December 1994 to 31 December 1998. In relation to counts 1 and 4 to 8 (inclusive), his Honour sentenced the applicant to imprisonment for five years commencing on 7 April 2000 and expiring on 6 April 2005. 6 In relation to counts 2 and 3, his Honour sentenced the applicant to imprisonment for seven years commencing on 7 April 2000 and expiring on 6 April 2007. All sentences were, therefore, to be served concurrently. His Honour declined to set a non-parole period with regard to any of the sentences. Thus, the effect of the sentences imposed by his Honour is, that, undisturbed, the applicant would be required to serve seven years imprisonment with no prospect of parole and at the expiration of the sentences, that is on 6 April 2007, he would be released immediately back into the community, free of any supervision. 7 The applicant was born on 6 December 1958 and was accordingly 41 years of age at the date of sentence. By way of background it is to be noted that on 18 November 1988 the applicant was sentenced at Armidale Supreme Court when Studdert J dealt with the applicant in relation to offences of commit an act of indecency on a person under the age of 16 years. 8 Effectively, his Honour sentenced the applicant to imprisonment for five years and fixed a non-parole period of two and a half years. The sentences and non-parole period were to date from the date of sentence 18 November 1988. 9 At that time prisoners were entitled to remissions in relation to non-parole periods, and as a consequence, the applicant was released to parole on 8 June 1990. The first offence for which he was sentenced by Kirkham DCJ commenced in December 1994, so that for a period of approximately four and a half years the applicant was free of any charges of indecently assaulting young persons or the like. 10 Studdert J said when sentencing the applicant: "I must, of course, have regard to your need for rehabilitation which is unlikely to be served by a longer period in prison."

which explains, the somewhat generous non-parole period which, by reason of the remissions which were then available, became even more generous indeed. 11 In any event there is no doubt that Studdert J believed there was some prospect of rehabilitation back on 18 November 1988. 12 Returning to the subject offences, the learned sentencing judge summarised the facts, upon which he sentenced the applicant, as follows: "On 13 July 1999 the prisoner left his home in Armidale to visit his mother on the north coast of New South Wales. He made an arrangement with a friend, who was a neighbour, to feed his pet birds and generally keep an eye on the home. The day following, 14 July 1999, the friend entered the house of the prisoner and turned the house lights on as a security measure. He noticed, in the bedroom of the prisoner, a cabinet with some fifty mail-order pornographic videos, mainly involving teenagers. He also saw a number of magazines with pictures of naked male and female children and packets of photographs which included naked children. A further cassette was one marked '[PM], do not wipe' and another marked 'Kids'. He became alarmed as he and the prisoner had discussed going into business together involving the photographing and filming of children's parties and functions. The friend placed a tape in the video player and, as it played, he recognised his own naked five year old daughter in the footage. He played two other video tapes and noticed the same images of his daughter also on those as well as footage of other naked children with close-ups of their genitalia. He recalled that the footage of his daughter was taken at his house on an occasion when the prisoner had his video camera with him. He became distressed, taped over the images involving his daughter, and reported the matter to Armidale Police. Police executed a search warrant on 19 July 1999 and seized the subject material from which a number of the children on the videos were identified. In respect to the first count on the indictment it shows footage of AW taken by the prisoner at his home. AW and her mother and AW's older sister KW had boarded at the house of the prisoner during that period on his invitation. The prisoner used the story that he had bought a house and needed to rent out part of it on a share basis to assist with the mortgage payments. Footage in the video labelled 'AW, Autumn Festival, Neighbours, Nothing, Neighbours' revealed AW aged five or six years at the time sitting naked on the lap of the prisoner with the child dropping her head down exposing her vagina and anus to the prisoner. The prisoner then video taped the child's genitalia whilst she was in various stances. Other footage revealed her face and the sound of her voice and that of the prisoner. [The first count]. The second count on the indictment involves material on the video tape labelled 'Kids' in which there was a further footage of AW depicting the prisoner holding her on his lap, in his lounge chair, in such a way so as to clearly expose her vagina and anus to the video camera. The child's mother was able to identify the child's voice and that of the prisoner on the video tape. Further footage on the same tape depicted AW lying naked on the prisoner's lap whilst he was sitting on a lounge chair. She lay across the front of his lap with her head back. The prisoner had positioned the video camera directly between her legs and filmed her exposed genitalia while he rubbed and tickled her lower abdominal area. The child's mother was able to identify the child's voice and that of the prisoner on the video tape. The third count on the indictment arose from information supplied to Police when interviewed on 23 July 1999 when the prisoner admitted filming AW naked with the video camera whilst touching her bottom and filming her whilst touching her bottom. In the ERISP interview the prisoner admitted enjoying naked children as his reason for video taping AW which he did when she was naked on more than one occasion. He transferred the images from the small video camera to a VHS tape. The fourth count on the indictment arose when Police examined the video tape labelled 'Kids' and were able to identify IG and MG. The mother of these two female children identified them from the video tape and was able to say that the video was taken at her home by the prisoner at Christmas 1994 at the time he had been a family friend. The footage of IG depicts her playing naked on the floor with a racing car set and it depicts close up footage of the child's exposed anus and vagina. The fifth count on the indictment relates to the same video tape taken around March of 1995 which shows the younger sister of MG, then aged about one year. The video tape concentrates on her vaginal area. In respect to the offences committed towards these two children the prisoner declined to answer any questions at the time of the ERISP. The sixth count on the indictment relates to KD, a female child, who was aged twelve years in 1996. During that year the prisoner accompanied the child and her mother on a camping trip and secreted his video camera in a bag in the tent and left it running. Footage shows the prisoner entering and leaving the tent. In other footage KD is seen in various stages of undress. Other footage shows her genital region. The footage was transferred onto a VHS tape and is repeated many times over and over. Neither the child nor her mother were aware that the prisoner had video taped her. The seventh and eighth count on the indictment relates to AC, a female child then aged eight years, and BC her elder brother aged thirteen years at the relevant time. Her parents were friends of the prisoner. They lived on a property outside Armidale. In December 1998 AC and her brother BC, together with their parents, visited the home of the prisoner. The prisoner had previously secreted his video camera in the bathroom and video taped the two children while each was having a shower. The footage clearly shows their genital region whilst in the shower and there is also footage there of their mother."

13 In his remarks on sentence Kirkham DCJ classified the applicant as a paedophile and no criticism could be made of that classification. 14 Kirkham DCJ had before him reports by Mr Gerard Allan, a consultant psychologist of Uralla, New South Wales, which were dated 7 March 2000 and 10 April 2000 respectively. Mr Allan thought that the applicant had an extremely strong sense of worthlessness which carried with it thoughts of suicide. 15 Mr Allan thought that the difficulties which the applicant had with adults was not repeated with children whom he perceived as people who did not criticise or judge him and that he has established them as pure objects and uses them for sexual gratification. 16 The impression one gains from Kirkham DCJ's remarks on sentence is that he felt a certain cynicism with regard to the reports of Mr Allan. There are certain passages in those reports which might be thought to justify that cynicism including a suggestion that a non-custodial sentence would be preferable. 17 There was a remarkable degree of confidence also on the part of Mr Allan and despite the applicant's unfortunate past history he assessed the probability of the applicant's complete rehabilitation as being high. He concluded that his deviant behaviour was curable. 18 Kirkham DCJ formed a very poor view of the applicant. He said: "There is the aroma of rottenness in the prisoner's crimes. He has, for several years following his earlier release exploited infants and young children in the most perverted and despicable way. He has invaded their privacy by the most profoundly detestable means after ingratiating himself into their families and encouraging their trust".

19 His Honour noted the applicant's pleas of guilty but added that his conviction, given the material found upon the execution of the search warrant, was inevitable. 20 One could interpolate here the comment that, bearing in mind the evidence that was available to the Crown without the need - which was out of the question - to call the children, the Crown case was a very powerful one and the most that could be said is that the pleas of guilty have had a limited utilitarian view. In any event, his Honour said that he has specifically noted them, albeit a conviction was inevitable. 21 This sentence was imposed, of course, prior to the guideline judgments of this Court in R v Thompson; R v Houlten [2000] NSWCCA 309. 22 The main point which has been raised by counsel for the applicant in this matter is the conclusion by his Honour that he should not set a non-parole period. As his Honour declined to set a non-parole period it was necessary for him to make a record of his reasons for doing so: see s 44(2) of the Crimes (Sentencing Procedure) Act 1999. In this regard his Honour gave the following reasons: "1. The nature of the current offences indicates that earlier treatment and/or counselling for the prisoner's paedophilia has been unsuccessful. 2. He is a repeat offender for this type of serious crime against young children and treatment to put an end to his predilection is recommended. 3. The sentence previously imposed has not been of sufficient deterrence to dissuade him from repeat offences. 4. In recommending appropriate treatment whilst in custody it is not possible to know whether or not such treatment will have succeeded by any prospective parole date."

23 Mr Boulten of Senior Counsel for the applicant, has criticised each of these four reasons. I do not accept the criticism that Mr Boulten has made of the first reason. I think that all his Honour was saying there is that, bearing in mind four and a half years after the applicant had been released from serving his earlier sentence, he committed (over a period of four years) these extremely serious offences which involved eight counts entailing crimes against six children of the respective ages of one year, two years, six years, eight years, 12 years and 13 years, his treatment was obviously unsuccessful. 24 His Honour was not there concerned with what Mr Allan was referring to as the limited success (if such there was) of his post arrest treatment. 25 As to ground two, this points up the difficulty with which this Court is faced in this particular case because his Honour there refers to the fact that treatment to put an end to the applicant's predilection of sexually assaulting young children is recommended. That ground is linked with the fourth ground wherein his Honour stated that in recommending appropriate treatment, whilst in custody, it is not possible to know whether or not such treatment will have succeeded by any prospective parole date. 26 Speaking for myself I am not entirely clear what his Honour had in mind here, but it does entail what seems to be an acknowledgment of the possibility of some treatment being successful or at least partially successful. 27 As to ground three, this is incapable of challenge because the sentences imposed by Studdert J previously, definitely were not of sufficient deterrence to dissuade the applicant from repeating offences. 28 Ms Hock, learned counsel for the Crown, has submitted that his Honour was perfectly entitled not to fix a non-parole period because it was clear from his judgment that he did not believe that the applicant had any prospects of rehabilitation. Why then, she puts to the Court, should his Honour have fixed a non-parole period which would have been an exercise in futility. 29 The difficulty with this submission is that it really does not receive support from what his Honour said during the course of his remarks on sentence and, in particular, what is implicit, as I hope I have already indicated, in the grounds, 2 and 4, upon which he based his decision in declining to grant a non-parole period. 30 If I could just leave that aspect of the case for a moment. It was also submitted that the sentence overall was manifestly excessive by reference to the statistics which are available from the Judicial Commission Research System, and by reference to other cases which have been decided in this Court. It was also said that inadequate weight was given by his Honour to the pleas of guilty and the fact that the applicant would be held in protective custody, by reason of the nature of the crimes. 31 If the period of seven years were to be looked upon as a non-parole period I am of the view, having carefully weighed the arguments to the contrary put by Mr Boulten, it would be a quite appropriate period for the applicant to serve in full-time custody. The applicant has already been through the criminal justice system and the prison system in relation to his predilection for sexually interfering with young children, and enough has already been said to indicate the extreme gravity of the subject offences. 32 There is a grave public concern which has existed now for some years in this State at the frequency of the sexual abuse of young children. One has only to look at the daily lists of the judges in the District Court, from one end of the State to the other, to appreciate how frequent this offence has become. It is, as I have said, a matter of grave public concern. 33 As from 1991 the sentences for this type of offence have been increased but that has done nothing to ameliorate the widespread nature of this detestable type of offence. It is incumbent upon the courts therefore when sentencing a person for this type of offence (in the various forms which it takes) to ensure that there is a strong deterrent element in the sentence. 34 The difficulty in the instant case, however, is that I am persuaded, despite the careful and forceful argument by the Crown to the contrary, that his Honour erred in principle in declining to set a non-parole period. 35 The community has an interest in there being proper supervision of the applicant once he is released from what necessarily had to be a long period of imprisonment. 36 When one is concerned with periods of imprisonment of this length it would be a very rare case indeed that a non-parole period would not be fixed. The reasons would have to be compelling although one would not have a great deal of difficulty in envisaging circumstances where, despite a lengthy period of imprisonment, the judge would be perfectly entitled to decline to fix a non-parole period. However, I do not think that this is such a case and, with the greatest of respect to Kirkham DCJ, I must say that for myself I find the reasons which he has expressed to justify the refusal to fix a non-parole period, as somewhat confusing and contradictory. But therein lies the difficulty. In order for this Court to interfere and fix a non-parole period it necessarily means that the actual time which the applicant will spend in custody must necessarily be reduced. 37 Be that as it may, the Court is bound to correct the error, so far as it can, which has been made by the sentencing judge, perhaps, one could interpolate, understandably. 38 It seems to me in all the circumstances a parole period of one year would be satisfactory. If that course were adopted the applicant will in fact be required to serve at least a period of six years, which is nevertheless a very long period of time to serve in protective custody. 39 Taking into account the various subjective matters that have been put to us so forcefully by Mr Boulten, and balancing the subjective and objective factors, I would propose that the application for leave to appeal be granted and that the appeal be upheld. With respect to the sentences imposed by Kirkham DCJ I would confirm the sentences imposed on counts 1 and 4 to 8 inclusive. However, in relation to counts 2 and 3 I would propose that the sentences imposed by Kirkham DCJ be set aside and in lieu thereof the applicant be sentenced to a period of imprisonment for seven years commencing on 7 April 2000 and expiring on 6 April 2007. I would propose that there be a non-parole period of six years, which means that the applicant would be eligible to apply for release to parole on 6 April 2006. 40 BARR J: I agree. The orders of the Court are as proposed by Carruthers AJ.

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