Turner v R

Turner v R - [2017] NSWCCA 304 - NSWCCA 2017 case summary — Zoe

[5]

(a) counts 1- 6

The applicant and his partner of some 20 years standing, together with her two children, lived in a country town in northern New South Wales. AA was the daughter of friends who frequently stayed with the applicant and his partner. The applicant had hidden a camera in a bathroom cupboard which he used on 20 occasions over a period of 11 months to record AA whilst she was naked and showering. Counts 1-4 on the indictment involved recordings made on 6 December 2014, 30 January 2015, 30 May 2015 and 31 October 2015. Sixteen further offences (identifying similar recordings made in the same period) were contained on a Form 1. Each of the offences, described as "produce child abuse material" involved a contravention of s 91H(2) of the Crimes Act.
The Form 1 offences were not in fact taken into account in relation to any of counts 1-4, as would have been appropriate, but in relation to count 6. Counts 5 and 6 also related to AA but involved conduct unrelated to the bathroom recording. Counts 5 and 6 occurred almost a year before the bathroom video recording commenced, namely on 9 January 2014. They related to two photos taken of the torso of AA, with the applicant holding up her shirt so that he could photograph her nipples. Count 5 involved the lifting of the shirt, being an assault involving an act of indecency with a person under the age of 16 years. Count 6 involved the taking of the two photographs, being an offence under s 91G(1)(a) of the Crimes Act, which refers to a person who "uses a child who is under the age of 14 years for production of child abuse material". The manner in which the photographs were taken is not revealed in the statement of agreed facts, or in other evidence before the Court. The applicant gave evidence that he took AA and her brother around the farm "catching rabbits, or on the quad bike". [3] The judge said that the offender and AA "rode on the quad bike when some of the offending behaviour occurred". [4] There was evidence that the applicant had a camera mounted on the front of the quad bike. There was no finding that AA was aware of the photographing taking place. However, it was accepted that the pulling up of the shirt was for the purpose of taking the photographs, counts 5 and 6 being part and parcel of the same incident.
The 16 additional charges relating to the filming of AA showering were taken into account in sentencing with respect to count 6. However, the same Form 1, again inappropriately, listed three further offences (discussed below) relating to CC. There is a real risk that other offending will not be properly addressed, or may be double-counted, where offences on a Form 1 are not taken into account in sentencing for similar offending and, where possible, with respect to the one victim. [5]

[7]

The third category, being counts 9 and 10, related to CC. Count 9 charged a further offence under s 91H(2) of the Crimes Act involving a covert recording of CC (then nine years of age) playing in her backyard (which adjoined the applicant's home) with her skirt hitched up and her underpants exposed at her crotch. The camera zoomed in with lengthy views of her crotch. This count was described in the statement of agreed facts as "produce child pornography". [6] The offence occurred on 6 January 2010.
There were three other covert video recordings of CC dated 8 January, 6 April and 14 November 2010, CC then being nine years old. All involved her playing in her underpants or hanging upside down from a swing with her underpants exposed. Although the judge described them in dealing with count 9, all were ostensibly taken into account as part of the Form 1 which accompanied count 6.
Count 10 also involved a charge under s 91H(2) of the Crimes Act, but in this case the offence was identified as possessing child abuse material, rather than producing it. The date of the offence was given as the date on which the material was discovered by police, namely 25 November 2015. It constituted a slide show of 41 images, of which 34 involved pornography, but not children. The relevant elements were seven photographs of CC. Five "photographs" were said to be part of the third offence relating to CC contained on the Form 1, which involved a video recording of her taken on 6 April 2010 of her legs, groin and underpants whilst stepping onto play equipment. There is no description of the other two photographs in the agreed facts, nor any finding by the sentencing judge that they constituted child abuse material. There was, therefore, a significant, if not total overlap between the relevant material the subject of count 10 and that taken into account on the Form 1.
It is convenient to note that none of the material was before this Court, either in its original form or by way of copies. This may have been because the sentencing judge, with the agreement of both parties, ordered that all of the material be destroyed.

[9]

(a) Counts 1-6 (and Form 1 offences) - AA

The sentencing judge undertook the process of indicating the putative sentences which would have been imposed with respect to each offence in two stages. Thus, with respect to counts 1-6, he identified the individual sentences as follows: Count 1: Produce child abuse material (s 91H(2)) - 18 mths Count 2: Produce child abuse material (s 91H(2)) - 18 mths Count 3: Produce child abuse material (s 91H(2)) - 18 mths Count 4: Produce child abuse material (s 91H(2)) - 18 mths Count 5: Indecent assault of child under 16 years (s 61M(2)) - 2 yrs 6 mths Count 6: Use child under 14 years for production of child abuse material (s 91G(1)(a)) and Form 1 offences - 3 yrs 6 mths.
By way of a second stage, acknowledging the need to take into account the totality of the offending, the judge indicated that he would have imposed an "effective sentence" in respect of AA of 4 years 6 months with a non-parole period of 3 years. That would be a form of aggregation. It apparently took into account the three Form 1 offences relating to CC.
It is clear from the Form 1, signed by the offender on 13 October 2016, that all the additional charges were to be taken into account in relation to count 6, involving using AA for production of child abuse material. There was much to be said for the view that the 16 additional offences relating to AA, each of which involved filming her whilst showering, should properly have been taken into account with one of counts 1-4. Nevertheless, it was legitimate to take those matters into account in sentencing on count 6, which also involved AA. However, it was not logical to invite the judge to take into account three offences involving CC in sentencing for the offences against AA. Not only did the offending involve different children, but the offending in respect of CC occurred some 4 years earlier. It appears from the transcript that the prosecutor thought that the Form 1 matters with respect to each victim were to be dealt with in sentencing for the offences relating to that victim; [8] however, that was not correct. One difficulty of a practical nature which followed from that was the attempt by the sentencing judge to give a total effective sentence in respect of each victim.

[13]

(a) producing child pornography/child abuse material

The oldest offences involved events prior to 17 September 2010. Count 9 recorded CC playing in her backyard with her skirt hitched up and her underpants and crotch exposed, whilst sitting on a drum. Because that event took place on 6 January 2010, the short description of the offence, albeit under s 91H(2), was "produce child pornography". The definition of "child pornography", which then appeared in s 91H(1), was significantly narrower than the definition of "child abuse material" now contained in s 91FB(1). The old definition was as follows: 91H Production, dissemination or possession of child pornography (1) Definitions In this section: child pornography means material that depicts or describes (or appears to depict or describe), in a manner that would in all the circumstances cause offence to reasonable persons, a person who is (or appears to be) a child: (a) engaged in sexual activity, or (b) in a sexual context, or (c) as the victim of torture, cruelty or physical abuse (whether or not in a sexual context). … produce child pornography includes: (a) film, photograph, print or otherwise make child pornography …
From 17 September 2010 the offence was reformulated as one of production of "child abuse material", which was a defined term. There were six offences, with a further 19 offences taken into account on the Form 1, under s 91H(2) as amended. The operative prohibition reads as follows: 91H Production, dissemination or possession of child abuse material (1) In this section: disseminate child abuse material, includes: (a) send, supply, exhibit, transmit or communicate it to another person, or (b) make it available for access by another person, or (c) enter into any agreement or arrangement to do so. possess child abuse material includes, in relation to material in the form of data, being in possession or control of data (within the meaning of section 308F(2)). produce child abuse material includes: (a) film, photograph, print or otherwise make child abuse material, or (b) alter or manipulate any image for the purpose of making child abuse material, or (c) enter into any agreement or arrangement to do so. (2) A person who produces, disseminates or possesses child abuse material is guilty of an offence. Maximum penalty: imprisonment for 10 years.
The phrase "child abuse material" is defined in s 91FB: 91FB Child abuse material - meaning (1) In this Division: child abuse material means material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive: (a) a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or (b) a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or (c) a person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or (d) the private parts of a person who is, appears to be or is implied to be, a child. (2) The matters to be taken into account in deciding whether reasonable persons would regard particular material as being, in all the circumstances, offensive, include: (a) the standards of morality, decency and propriety generally accepted by reasonable adults, and (b) the literary, artistic or educational merit (if any) of the material, and (c) the journalistic merit (if any) of the material, being the merit of the material as a record or report of a matter of public interest, and (d) the general character of the material (including whether it is of a medical, legal or scientific character). (3) Material that depicts a person or the private parts of a person includes material that depicts a representation of a person or the private parts of a person (including material that has been altered or manipulated to make a person appear to be a child or to otherwise create a depiction referred to in subsection (1)). (4) The private parts of a person are: (a) a person's genital area or anal area, or (b) the breasts of a female person.
The history of amendments, together with the creation of new offences, demonstrates a broadening of the scope of the various offences over time. It would be anachronistic to read back into the earliest provisions an intention to cover the full extent of current offences. The term "child pornography" was defined by reference to that which it depicted. In its ordinary meaning, pornography refers to an explicit depiction or description of sexual activity which is intended to stimulate sexual desire. That ordinary meaning is not captured by the statutory definition except by reference to the manner of the depiction or description as causing offence to reasonable persons. Rather, the focus is upon the individual depicted, who is a child and who fits one of three descriptions. Those descriptions relate to the circumstances of the child and not to the purpose or motive of the person producing the film (or other depiction), nor to the manner in which it was produced.
In her supplementary written submissions, counsel for the Director contended that "it is open to find that the material depicts the child in a sexual context as a result of the camera zooming in on the crotch area of the child and maintaining the focus on that area alone for an extended period of time." However, that is to describe an element of the recording in a manner which would cause offence to reasonable persons because it readily allows the viewer to draw the inference that the recording has been produced for sexual gratification. The motive of the producer is not, however, part of the definition; indeed, there was a separate offence of using a child for "pornographic purposes" to which reference will be made shortly. In the present case, there was a depiction of a child playing in her own garden; there was nothing about the child or her circumstances which could constitute her play as being "in a sexual context".
There is some authority to support this understanding of the offence. Section 125A(1) of the Criminal Code (NT) contains a definition of "child abuse material" which is in similar terms to the definition of "child pornography" in the Crimes Act, prior to the September 2010 amendments. One significant variation is that par (b) of the definition (which in New South Wales referred to a child "in a sexual context") in the NT Code refers to a child "in a sexual, offensive or demeaning context". In Guerin v HB [9] Blokland J in the Supreme Court of the Northern Territory held that the language of par (b) "clearly relates back to what is 'depicted' … by the material." Accordingly, "with respect to photographs it is difficult to apply the section in any alternative way, other than to consider whether the photograph 'depicts' in a manner likely to cause offence to a reasonable adult, a child (b) 'in a sexual, offensive or demeaning context'." [10] In other words, "the context is drawn from the image and what is depicted." [11]
In that case, the police, who had entered the respondent's house for an entirely different purpose, had seen framed pictures on the walls taken by the owner of his daughter as a child (the daughter was now 35 years of age). Although the pictures had been taken many years before the enactment of the offence, it was held they could nevertheless properly form the basis of a charge of possessing child pornography because they were to be assessed without regard to the intention of the photographer or the use to which they were put.
Some of the reasoning may depend upon the particular language of the Northern Territory provision, as Blokland J expressly recognised. Nevertheless, if her reasoning were adopted in relation to the New South Wales statute, it would preclude a photograph which might otherwise be seen to depict innocent material being rendered offensive by the purpose of the photographer.
Both parties referred to (and accepted) an aspect of the reasoning in Director of Public Prosecutions (NSW) v Annetts, [12] a case involving video images (taken by a concealed camera) of boys some of whom were under the age of 16 dressing and undressing in the change room of a local swimming pool. [13] In the District Court, Williams DCJ held that some of the images depicted boys under the age of 16, but "not in what could be regarded as a sexual context." [14] In this Court, McClellan CJ at CL (with whom Simpson and Howie JJ agreed) reasoned as follows: "[10] In my opinion his Honour was correct to determine that the question which the definition in s 91H raises is objective and is to be answered by considering the content of the material about which complaint has been made. The fact that the images were secretly recorded is not relevant to whether or not the material is child pornography. Furthermore, the reasons which motivated the photographer are not relevant. These matters may inform an understanding of the context in which the film was made but are not relevant to an understanding of whether or not the video depicts boys in a 'sexual context.' That question must be answered after considering the content of the film itself. [11] For that reason the content of the images contained in the video is relevant to the issue raised by the statute. The fact that all the images were of young boys and the camera has concentrated on their genitalia are both relevant to the question of whether or not the images depicted are of a person or persons in a 'sexual context.' Of course it may be that after consideration of the content of a video, including a video containing a sequence of images of the genitalia of young boys, it could not be concluded that the video depicts boys in a sexual context. The images may have been made for a medical or artistic purpose and are depicted in that context. However, a conclusion that the images depict persons under 16 in 'sexual context' may be informed by the number of images, the gestures of those photographed and the portion or portions of the body, including the genitalia, depicted. [12] It follows that the primary judge's approach was only partly correct. Although the motivation of the photographer and the method he used to film the boys was not relevant all of the content of the images, including that all the images were of young boys, concentrated on their genitalia and were taken over a period of time, and, if this is apparent from the video, were taken in a men's change room were relevant to the question of whether or not the material depicted a person 'in a sexual context'. Whether, when these matters are considered, an offence is proved in the present case is not a matter for this Court."
As matter of construction, there can be no difficulty with the proposition that "the reasons which motivated the photographer are not relevant." However, the statement that "[t]he images may have been made for a medical or artistic purpose" implies that were it otherwise, and it could be inferred from the images that they were made for pornographic purposes, then the boys would be depicted "in a sexual context." The proposition that the motivation of the photographer is irrelevant, because the statutory term "in a sexual context" refers to the person depicted, belies the proposition that boys engaged in an innocent act of changing in or out of bathers are "in a sexual context." Nor is that so merely because the photographer obtains sexual gratification from seeing them undressed.

[14]

(b) using a child for pornographic purposes

As in force prior to 17 September 2010, s 91G made it an offence to use a child for pornographic purposes: 91G Children not to be used for pornographic purposes (1) Any person who: (a) uses a child who is under the age of 14 years for pornographic purposes, or (b) causes or procures a child of that age to be so used, or (c) having the care of a child of that age, consents to the child being so used or allows the child to be so used, is guilty of an offence. Maximum penalty: imprisonment for 14 years. … (3) For the purposes of this section, a child is used by a person for pornographic purposes if: (a) the child is engaged in sexual activity, or (b) the child is placed in a sexual context, or (c) the child is subjected to torture, cruelty or physical abuse (whether or not in a sexual context), for the purposes of the production of pornographic material by that person.
That provision changed on 17 September 2010 so as to make it an offence to use a child "for the production of child abuse material", with the adoption of the definition of the new term "child abuse material" in s 91FB. The relevant element of the definition of "pornographic purposes" in the repealed version of s 91G(3) was use where "the child is placed in a sexual context".
The differences between the new and old offences under s 91G were addressed by this Court in NW v R, [15] a case in which there were charges under both forms of the section and the points of distinction had not been explained to the jury: "26 It is to be observed that the definition of the phrase 'child abuse material' is broader than the definition of the phrase 'pornographic purposes' because the more recent definition includes a specific reference to the depiction of the private parts of a person, whereas the earlier material required the depiction to be in a particular context or in a particular pose. 27 … The child depicted in the photos, the subject of the charge was naked and her private parts could be seen. On that basis, the photographs were said to have constituted child abuse material. Being satisfied of that fact alone would not have been sufficient, without more, to meet the definition in the earlier legislation of 'pornographic purpose'. 28 The repealed and current sections are also different in another material respect. The repealed definition of 'pornographic purposes' did not require any reconsideration, objectively, of the offensiveness of the material. A jury considering an offence charged under the repealed legislation, as this charge should have been, needed to consider and decide if the content of the photographs in fact depicted sexual activity or the existence of a sexual context, and whether the child was engaged in the sexual activity or placed in the sexual context '... for the purposes of the production of pornographic material'."

[16]

(i) "private parts"

On 1 January 2009 two new divisions of Pt 3 of the Crimes Act commenced. Division 15A (then headed "Child Pornography") and Div 15B ("Voyeurism and related offences") were inserted by the Crimes Amendment (Sexual Offences) Act 2008 (NSW).
As enacted, "child pornography" was defined in s 91H(1), [17] and made no mention of "private parts". Division 15A was amended by the 2010 Amendment Act, which commenced on 17 September 2010. The name of the Division was changed to "Child Abuse Material"; references to "child pornography" were replaced with references to "child abuse material"; s 91H became the operative provision (the maximum penalty was unchanged at 10 years imprisonment) [18] and definitions were placed in s 91FB. [19] That provision includes a definition of "private parts", namely: (a) a person's genital area or anal area, or (b) the breasts of a female person. The provisions in Div 15A specifying the elements of the offences do not refer to a purpose of any kind.
Division 15B contains four separate offences; two involve filming a person "engaged in a private act" (s 91K), and filming a person's "private parts" (s 91L). Each requires that the filming be done "for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification". Each carries a maximum penalty of 2 years imprisonment and, for an aggravated offence (a circumstance of aggravation being that "the person whom the offender filmed was a child under the age of 16 years"), a maximum of 5 years.
The key elements of the offences were originally defined in s 91I: 91I Definitions (1) In this Division: … private parts means a person's genital area or anal area, whether bare or covered by underwear. (2) For the purposes of this Division, a person is engaged in a private act if: (a) the person is in a state of undress, using the toilet, showering or bathing, engaged in a sexual act of a kind not ordinarily done in public, or engaged in any other like activity, and (b) the circumstances are such that a reasonable person would reasonably expect to be afforded privacy.
These definitions are notable in two respects. First, the definition of "private parts" omits any reference to "the breasts of a female person". Secondly, it expressly envisages that, at least with respect to those areas which it identifies, they may be "bare or covered by underwear." In both respects, the definition varied from that adopted in s 91FB(4) which was enacted some 18 months later. A further curiosity was added by the amendment of the definition in 2017.
A new Div 15C ("Recording and distributing intimate images") was inserted by the Crimes Amendment (Intimate Images) Act 2017 (NSW), which commenced on 25 August 2017. It contains certain new definitions: 91N Definitions (1) In this Division: … engaged in a private act means: (a) in a state of undress, or (b) using the toilet, showering or bathing, or (c) engaged in a sexual act of a kind not ordinarily done in public, or (d) engaged in any other like activity. … intimate image means: (a) an image of a person's private parts, or of a person engaged in a private act, in circumstances in which a reasonable person would reasonably expect to be afforded privacy, or … private parts means: (a) a person's genital area or anal area, whether bare or covered by underwear, or (b) the breasts of a female person, or transgender or intersex person identifying as female.
As may be seen, this definition of "private parts" differed from both of the then extant definitions. However, the 2017 Act also amended the definition in Div 15B (s 91I), so that they are now identical. No amendment was made to the definition of the same term in s 91FB.
The relevant operative provision in Div 15C (s 91P) states that a person who "intentionally records an intimate image of another person", without his or her consent, is guilty of an offence: the maximum penalty is imprisonment for 3 years. There is no aggravated offence. There are exceptions in s 91T, which identify certain acceptable purposes, but the gravamen of the offence appears to be the invasion of privacy, without reference to a possible purpose, such as sexual gratification. That was deliberate; Attorney General Speakman noted in his Second Reading Speech: [20] "The new offence in proposed section 91P is similar in some ways to the existing unlawful filming offences in sections 91K and 91L of the Crimes Act 1900. Those offences criminalise filming a person who is engaged in a private act and filming a person's private parts without the person's consent. However, the offences in sections 91K and 91L are narrower offences that apply only if the filming is done for the purposes of sexual arousal or sexual gratification. … These existing offences do not protect victims where the non-consensual recording of the intimate image was done with motives of revenge, or to embarrass and humiliate the victim, or to attempt to control their behaviour. The new offence in section 91P will address this gap in the law."
Although the Attorney noted the amendment to the definition of "private parts" in Div 15B, he made no mention of the definition in Div 15A, which was not amended. The new definition was said to "modernise the way this term is understood for these offences." [21]
Even with the legislative history recounted above, one would expect that the definition of "private parts" in s 91FB should be given its ordinary meaning, namely a depiction or description of a body part which is unclothed and not one which is clothed. Were it otherwise, it would be necessary to consider how much clothing would be sufficient to take the depiction or description outside the relevant definition. When Parliament addressed the question in other provisions, it used the phrase "whether bare or covered by underwear." That is an expansive definition which the amending legislation did not extend to s 91FB. Given that the expansion initially occurred in relation to an offence which carried a maximum penalty of 2 years imprisonment (or 5 years with respect to a child under the age of 16 years) it is not appropriate to imply an extended operation for an offence carrying a maximum penalty of 10 years.
It follows that circumstances where the applicant filmed children who were clothed in underwear did not involve an offence under s 91H(2). The Director accepted that conclusion.

[17]

(ii) "breasts"

The Director submitted, by referenced to the "ordinary and grammatical sense of the statutory words" [22] that the term "breast" is a reference to the area of a person's chest which can apply to both males and females and is not limited to post-pubescent females.
The Director relied upon the following considerations in support of the submission that any filming of the chest including the nipples of a female person satisfied the statutory definition: 1. the second reading speech introducing the new provision in April 2010 was part of the Government's "continuing efforts to strengthen the laws surrounding child pornography, child abuse …" [23] 2. in accordance with recent statements in Aubrey v The Queen, [24] a principle of statutory interpretation that penal provisions be strictly construed is to be treated as a rule of last resort; 3. were the section limited to pubescence, an uncertain element as to the level of development would arise; 4. not all pre-pubescent depictions would be caught, because the material must nevertheless be considered offensive to a reasonable person, and 5. there was potential for sexual gratification to be obtained by persons who had a sexual interest in pre-pubescent girls.
None of these factors provides significant assistance. As to (a), a broad statement of the purpose of the amendment does little to identify its limits. The difficulties of construction arise, at least in part, from an apparent confusion of statutory purposes. Thus, it is far from clear whether the underlying purpose of some provisions is to protect children from abuse, to prevent images of children being used for sexual gratification by adults, or merely to prevent the creation of images which reasonable persons would regard as being "offensive", or a combination of these purposes.
As to (b), there is a curious tension between the proposition that penal statutes are to be construed in accordance with ordinary rules of construction, as opposed to a meaning which favours the subject, and the "principle of legality" which would generally require that an intrusion on individual rights and freedoms should be "clearly manifested by unmistakable and unambiguous language". [25] Nevertheless, it may be accepted that "strict construction" should be eschewed.
As to (c), there need be no finding of sexual maturity. As counsel for the applicant submitted, the dictionary definition of "breast" provides little assistance in understanding the phrase "the breasts of a female person." The ordinary meaning of this phrase connotes at least the commencement of sexual development, or pubescence. The fact that the material which forms the subject matter of the offence must involve depiction or description suggests that development should be visible, but need not have reached any particular stage.
As to (d), while there is a separate test of that which reasonable persons may consider offensive in all the circumstances, that constraint appears in the operative provision and not in the definition of private parts. The objective circumstances taken into account in applying the test of what is offensive may include the fact that the photographer was the mother or father of the child, so as to impose some constraint on what would otherwise be an excessively broad offence. However, that there is such a constraint provides little if any assistance in considering the scope of the definition of "private parts".
As to (e), there is no doubt an available inference that the applicant undertook the filming for sexual gratification; it was admitted in relation to one offence relating to CC on the Form 1. However, the legislative history reveals that offences which turned on the purpose of the offender were expressly so identified.
There was no finding (or agreed fact) that the pictures taken by the applicant depicted a girl at pubescence. Further, the ages of the girls rendered that unlikely. The ordinary meaning of the second part of the definition of "private parts" would not engage the depiction or description of the chest of a prepubescent female child. The use of the term "breasts" connotes a visible degree of sexual development.

[19]

(a) production of child pornography - count 9

It is clear that CC was not engaged in sexual activity, nor did she fall within par (c) of the definition of child pornography. The only way in which it could be said that the film depicted a child "in a sexual context" was if the relevant sexual element was provided by the applicant's purpose. That would, as Garling J said in NW, be an implausible reading of the definition of child pornography. [28]
In her supplementary submissions counsel for the applicant accepted the reasoning in Annetts set out above and, while describing the offence as "borderline", accepted that "the manner of filming depicts her in a sexual context by focusing and zooming in on occasions on the crutch of her underpants." As explained above, that material may demonstrate that the applicant was seeking sexual gratification, but it does not mean that CC satisfied the definition of being a child in a sexual context.
The fact that the conviction was not challenged on appeal would not be an insurmountable obstacle to setting aside the conviction, although it might require that the applicant file a further amended notice of appeal to raise the issue. There are, however, three reasons why that course is inappropriate in the present case. First, given the current state of the authorities, it is inappropriate to determine the point of construction in circumstances where it involves, in effect, an application to withdraw a plea after the hearing of the appeal and in circumstances where full submissions have not been provided on either side of the record.
Secondly, it is not entirely satisfactory to have such a question determined in the absence of the material which formed the subject of the charge. Understandably, the sentencing judge ordered that the recordings be destroyed. As neither counsel has relied upon her knowledge of the original recordings, it seems likely that that step has already been taken. If that be so, it may be appropriate to note that steps should not be taken to give effect to such an order before it is clear that there will be no appeal from the judgment below.
Thirdly, as the Director noted, if there had not been a plea to the offence under s 91H, it might have been open to the prosecutor to lay a charge under s 91L, which included the filming of private parts, whether bare or covered by underwear, for sexual gratification.
It is in any event unnecessary to determine the issue because the offending must, on any view, be at the low end of the spectrum of objective seriousness under s 91H.

[23]

(i) general considerations

All of the offences bar one (relating to CC) involved "producing" child abuse material or child pornography, or using a child for that purpose; indeed, that relating to CC which was charged as a possession offence, involved earlier conduct of the same character. In many cases, at least one purpose of production will be dissemination. Again speaking generally, production for dissemination (and dissemination itself) will involve conduct of greater seriousness than production solely for personal possession. In the present case, there was no evidence of dissemination, nor of any intention to disseminate. Although the judge observed that "once it is recorded, one can never guarantee as to whose hands it will fall into", that was not a reason to discount the submission for the offender that there was no evidence that he had distributed any of the material to anyone else. [29] This was an important element in assessing the objective seriousness of the offending.
The sentencing judge expressly dealt with the objective seriousness of the offending relevant to counts 1-4, stating: [30] "They are perhaps at the lower end of the broad middle range of criminality as reflected in s 91H(2) of the Crimes Act."
However, as counsel for the Director conceded, the sentencing judge did not otherwise make express findings as to the objective seriousness of the offending. On the other hand, at least in the course of summarising submissions for the parties, it is clear that he had regard to the significant factors relevant to that exercise. Apart from the absence of an express assessment with respect to the objective seriousness of the separate offences, the applicant also complained that the judge appeared to have misunderstood an acknowledgement (or concession) by counsel for the offender. The passage under challenge read as follows: [31] "It was urged upon me by Mr Collins [counsel for the offender] that all of the offences fall into the lower part of the middle range of offending conduct. Mr Collins acknowledged that as regards counts 7 and 8 (the victim [BB]) there was a fondling of the nipples which was recorded; that fact puts the offending perhaps in the middle range. Counts 9 and 10, he urged upon me, are positioned in the low or bottom of the range."
There is some ambiguity in this statement. In particular it is unclear whether the judge thought that counsel had acknowledged that counts 7 and 8 fell "in the middle range", or whether that was a finding that he was making as to the objective seriousness. It is not necessary to resolve that ambiguity, except to say that, in the absence of any further consideration in the judgment, the Court should treat the sentencing judge as having accepted a concession expressly identified in the reasons, or as having made the same finding, the difference being immaterial in the outcome. More importantly, the first sentence was incorrect: counsel did not submit that all of the offences fell into "the lower part of the middle range". For example, counsel made the following submissions: [32] "In terms of 1 to 4 in respect of the objective seriousness, I submit that it's a matter where it's not the bottom end of the range, but certainly not at the mid-range. … It's below the mid, I would say, because there's no actual inherent sexual activity. … The offence of number 5 [in fact 7], again, it's the lifting of a shirt, it's a touching of the body at the top of a body of a prepubescent child. Again, I would submit it's towards the bottom end of the range. … In relation to counts 9 and 10, I submit that they are at the bottom of the range."
What was conceded (uncontroversially) was that the activity involved in counts 7 and 8, which involved pulling up BB's shirt and fondling her nipples and pulling down her shorts whilst filming, was the most serious activity dealt with in the charges.
In written submissions the Director conceded that it would have been "desirable" for the sentencing judge "to have made an express finding of objective seriousness in respect of counts 5 to 10 as he had done for counts 1 to 4". In support of that submission, the Director referred to the recent decision of this Court in Kearsley v R. [33]
In Kearsley, Harrison J (with whom Macfarlan JA and Schmidt J relevantly agreed) stated that while the offences in question did not have a standard non-parole period, the sentencing judge "was still required explicitly to assess the objective gravity of each offence as an essential element of the sentencing process". [34] If taken literally, it may be doubted that the authorities relied upon supported the full rigour of the proposition. Further, Harrison J expressly accepted that it is "the substance and not the form" of the judge's reasons that are important but stated that "it remains critical that upon a fair reading of the remarks [reasons] the relevant assessment is clear." [35] Reference was then made to the discussion in the judgment of Hoeben CJ at CL in Delaney v R; R v Delaney [36] accepting that the reasons demonstrated that the sentencing judge had taken into account the relevant factors to be weighed, indicating that while it "may have been preferable" for the judge to have made "a specific assessment of the objective seriousness of the offending, he did implicitly do so."
The approach adopted by the Chief Judge in Delaney was appropriate. There is no two-stage process requiring the fixing of objective seriousness on a relevant scale and then making allowance for subjective considerations and other matters permitting leniency to be accorded. While transparency is an important purpose of giving reasons for judgment, and is essential to the full explanation of a resultant sentence, the practical realities facing judges with heavy caseloads in the District Court must also be acknowledged. Further, to ascribe some position on a scale of seriousness is an inherently fraught exercise. There is no established scale, so that reference to a point within a range depends very much on the frame of reference of the speaker.
There is a further point to be made with respect to the reasons for judgment. They are traditionally referred to as "remarks on sentence" which, on one view, devalues them and distracts from their true legal purpose, which is, as the cases just referred to acknowledge, an essential part of the exercise of the judicial function. However, they may also serve a different purpose, more consistent with their traditional characterisation, which is to convey a public denunciation to the offender of the way in which the court, on behalf of the community, views his or her conduct. That function is particularly apparent where lenience is accorded and the sentencing judge gives a stern warning as to what may happen if the offender transgresses again.
These considerations are relevant because on a number of occasions the sentencing judge described the offender's behaviour as "appalling" and as "appalling and reprehensible". I would understand those colloquial expressions as directed to the offender, rather than indicating a relative assessment as to where, in the scale of offending, the conduct fell. Sadly, the courts regularly see far worse behaviour.
Two further points may be made about the assessment of objective seriousness. First, there are some offences which cover such a broad range of conduct that to adopt a scale of objective seriousness may do little more than explain the limited relevance of the maximum penalty. As Jordan CJ stated in R v Geddes, [37] in dealing with a sentence for manslaughter: "In the nature of things there is no precise measure, except in the few cases in which the law prescribes one penalty and one penalty only. In all others, the judge must, of necessity, be guided by the facts proved in evidence in the particular case. The maximum penalty may, in some cases, afford some slight assistance, as providing some guide to the relative seriousness with which the offence is regarded in the community; but in many cases, and the present is one of them, it affords none."
The second point, which is related to the first, is that where a single offence covers a range of conduct, it will often be necessary to bear in mind the range of sentences which tend to be imposed for other offending of a like nature. In the present case, it is necessary to be conscious of the levels of depravity revealed in other cases involving the video-recording of child abuse for sexual gratification. It is also desirable to have regard to the maximum penalties for related but more specific offences.

[24]

(ii) temporal elements

In sentencing for a lengthy sequence of offences of the same kind, it should be recognised that offences in earlier periods may need to be treated differently from later offences. As explained in McIntosh v R [38] a failure to deal with matters chronologically may mean that inadequate leniency is accorded to sentencing for the earliest offences and that proper account is not taken of the age of the offender at the relevant times.
The applicant had two earlier convictions for child abuse resulting from charges laid in June 1994. With respect to one victim, he entered into a good behaviour bond for 2 years before the Local Court. In respect of the other two counts, involving a second victim, he was ordered to perform 100 hours of community service. The judge noted that the earlier convictions indicated, as the applicant had agreed, according to a report by a psychologist, "that he had struggled with sexual thoughts of pubescent girls for many years." [39] (In fact the acknowledgment identified in the report of Dr Katie Seidler, clinical and forensic psychologist, was that "he has struggled with sexual thoughts of pre-pubescent girls for many years, although these thoughts become more intense and frequent at certain times, such as when he is struggling with depression." [40] )
There was no evidence of any offending conduct between 1994 and 2010. The applicant had told the psychologist that he had suffered "a sustained period of ill health" in or around 2009, at which stage he had begun to experience erectile difficulties. [41]
The two counts relating to CC involved the covert recording of her playing in her backyard with her skirt hitched up and her underpants and crotch exposed while sitting on a drum. The recording was made on 6 January 2010. Although, given his purpose of sexual gratification, this conduct was no doubt offensive and contrary to current standards of morality, it was the first offending of its kind (the 1994 offences having involved touching 14 year old girls), was for a limited duration, did not involve a child in his trust or under his authority, did not result from deliberate attempts to befriend the girl's parents and involved no apparent planning. Had these facts been separately assessed, it is unlikely that the judge would have putatively imposed a sentence of 18 months on count 9, being precisely the same sentence that was indicated with respect to the covert filming of AA naked in the shower. Similarly, the same sentence for the possession of seven photographs of CC, including five which were included in a Form 1 offence, taken on 6 April 2010, would also appear to have been inappropriate.

[27]

(b) grounds 2 and 3 - failure to assess applicant's moral culpability in the light of his subjective circumstances and expressed remorse

The basis of this complaint appears to have been the statement of this Court in Belghar v R [42] that "it remains part of a sentencing judge's function to consider the objective gravity of the subject crime and the moral culpability of the offender". However, there is no special magic in the phrase "moral culpability". It may mean different things in different contexts. For example, moral culpability may be reduced if, at the time of the crime, the offender was suffering from a mental illness that affected his or her judgment. This was the context in which it was used in Ayshow v R. [43] Ayshow was one of the authorities relied on in Belghar.
In the present case, there is no doubt that the sentencing judge gave careful attention to the applicant's own evidence and Dr Seidler's report. Reference will be made to these matters below; it was not necessary for the sentencing judge to set out the full history of the applicant's disadvantaged childhood and his apparent difficulties in maintaining relationships that provided some background to, if not explanation of, the offending.
With respect to remorse, another subjective consideration, the applicant's submissions, setting out his acknowledgments of guilt and self-hatred to his probation officer, and his acceptance that he needed professional help, were noted by the judge. The judge also referred to Dr Seidler's assessment of him. The judge did not, as the applicant noted, refer to her opinion that his expressions of remorse seemed genuine and appropriate; however, a finding as to the genuineness of remorse is not an essential element of a sentencing exercise. Remorse comes in many forms; having been arrested and facing a prison sentence, many people feel remorse and even self-pity. What is usually an important consideration is whether the remorse is based on insight which may provide a solid basis for considering that the risk of reoffending is low. Dr Seidler (and the sentencing judge) gave careful attention to this question, each acknowledging the imprecision attaching to any such assessment. There was no error in the way the judge dealt with the subjective circumstances of the offender.

[31]

(b) counts 5 and 9

Of the remaining offending, count 5 occurred on 9 January 2014. The element of aggravation relevant to the assault charge was that AA was under 16 years of age. Further aggravating circumstances were that AA was under the authority of the offender at the time of the assault, and that she was nine years old. Her young age is properly treated as a further aggravating factor, as was the breach of trust involved in the offending, although, if being under the authority of the offender was itself a relevant circumstance of aggravation, there would be an element of double-counting in giving significant weight to the separate complaint of a breach of trust.
The element of assault involved in merely lifting AA's shirt is insufficient to render the indecent assault a serious offence of its kind. Further, as the purpose of lifting the shirt was to allow the offender to photograph AA's unclothed chest and nipples, if the events of four years earlier are disregarded, this was the first occasion on which the applicant engaged in unlawful photographing of a prepubescent girl.
For the reasons noted above, the evidence did not establish an offence involving child abuse material (being the filming of the chest of a prepubescent girl). On the basis that the offences included on the Form 1 are addressed with respect to count 4, there is a large question as to whether a period of imprisonment is required. In my view a bond would have been sufficient had the offender not been otherwise required to serve a sentence of imprisonment. In that circumstance I would have imposed a sentence of three months which would have been served wholly concurrently with the sentence on count 4.
With respect to count 9, the offending fell into a similar category, with the further mitigating factors that (i) it was the first element of offending, occurring in January 2010; (ii) it occurred without the knowledge of the victim and (iii) it involved photographing the child in underwear. By itself the conduct would not have warranted a separate sentence of imprisonment and, while the conviction stands, it should not increase the aggregate sentence.

[32]

Although the first event of covertly filming AA commenced on 6 December 2014 (count 1) and the events concerning BB occurred on 8 December 2014, it is convenient to deal with the latter first. The aggravated indecent assault on BB (count 7) involved pulling up BB's shirt and fondling her nipples and also pulling down her shorts to expose her underpants and her crotch, whilst they were riding on a quad bike. These events were filmed by a camera placed on the quad bike, presumably covertly, in circumstances where the agreed facts did not suggest otherwise, and there was no finding that BB was aware of being filmed.
The assault must have taken place over a period of some little time, as the description given in the agreed facts was as follows: "As he rode around the property the camera showed the offender pulling up [BB's] shirt and fondling her nipples. The footage then shows the quad bike stopping and the offender pulling up [BB's] shirt as he again filmed her nipples. He then pulled her shorts down and exposed her underwear at her crotch."
The agreed facts noted that BB was "under the authority of the offender" at the time of the offences and was then eight years old. These were aggravating factors of the same kind as those discussed with respect to the assault on AA. However, the assault on BB was significantly more serious. Nevertheless, for the reasons already explained, there is real doubt as to whether the filming of prepubescent nipples and her groin, whilst she wore underwear, constituted the production of "child abuse material". On the assumption that it did, the nature of the material placed it at the lowest end of the range of seriousness.
In my view, the aggravated indecent assault is the more serious offence on this occasion. The maximum penalty of 10 years is significant, as is the standard non-parole period of 8 years. I give the standard non-parole period little significance in the present case, in part because acts of indecent assault can cover a wide range of conduct and also because of the plea. However, taking into account the aggravating circumstances, I would have imposed a sentence of 2 years imprisonment on count 7 and a sentence of 6 months imprisonment on count 8, which would, if individually imposed, be served concurrently.

[39]

Endnotes

Crimes (Sentencing Procedure) Act 1999 (NSW), s 50(1) ("the Sentencing Procedure Act").
Crimes (Administration of Sentences) Act 1999 (NSW), Pt 6, Div 1.
Tcpt, 17/10/16, p 18(15).
Sentencing judgment, pp 14-15.
SGJ v R; KU v R [2008] NSWCCA 258 at [26] (Kirby J; Hodgson JA and Hislop J agreeing).
Frustratingly, not all the court attendance notices were in the papers before this Court.
[2017] NSWCCA 179 (Button and N Adams JJ).
Tcpt, 18/10/16, pp 12(5) and 13(15)-(20).
[2017] NTSC 14.
Guerin at [23].
Guerin at [24].
[2009] NSWCCA 86.
Annetts at [4].
Annetts at [7].
[2014] NSWCCA 217 (Garling J, Hoeben CJ at CL agreeing).
Tcpt, 18/10/16, p 5(1)-(4).
See [26] above.
See [27] above.
See [28] above.
NSW Legislative Assembly, Parliamentary Debates (Hansard), 24 May 2017, p 15.
Second Reading Speech at 16.
See Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 at [47].
NSW Legislative Council, Parliamentary Debates (Hansard), 20 April 2010, p 21823.
[2017] HCA 18; 91 ALJR 601 at [39] (Kiefel CJ, Keane, Nettle and Edelman JJ).
Electrolux Home Products Pty Ltd v Australian Workers Union (2004) 221 CLR 309; [2004] HCA 40 at [19] (Gleeson CJ).
(1995) 184 CLR 132 at 157; [1995] HCA 41.
See generally R v Thalari (2009) 75 NSWLR 307; [2009] NSWCCA 170 at [32]-[35] (Johnson J; Young JA and Latham J agreeing).
See also McCallum J at [3].
Sentencing judgment, p 17.
Sentencing judgment, p 19.
Sentencing judgment, p 17.
Tcpt, 18/10/16, pp 4, 6.
[2017] NSWCCA 28.
Kearsley at [60].
Kearsley at [63].
[2013] NSWCCA 150 at [56].
(1936) 36 SR (NSW) 554 at 555.
[2015] NSWCCA 184 at [151].
Sentencing judgment, p 16.
Report, 10 October 2016, par 45.
Report, par 37.
[2013] NSWCCA 245 at [61] (Gleeson JA; R A Hulme J and Adamson J agreeing).
[2011] NSWCCA 240 at [39] (Johnson J; Bathurst CJ and James J agreeing).
Sentencing judgment, p 22. 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 December 2017

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