DJM v R

[2013] NSWCCA 101

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

DJM v R [2013] NSWCCA 101

Hearing dates:

19 March 2013

Decision date:

06 May 2013

Before:

Basten JA at [1];
Simpson J at [2];
Blanch J at [3]

Decision:

(1) Leave to appeal be granted.

(2) Appeal allowed.

(3) Impose sentences as follows:

(a) On Count 5 confirm the sentence of 18 months fixed term to date from 8 October 2009;

(b) On Count 1 quash the sentence and impose a sentence of 3 years fixed term to date from 8 April 2010;

(c) On Count 2 confirm the sentence of 7 years fixed term but order the sentence to date from 8 October 2010;

(d) On Count 3 quash the sentence and taking into account the Form 1 impose a sentence of 7 years fixed term to date from 8 October 2011;

(e) On Count 4 quash the sentence and taking into account the Form 1 impose a sentence of 7 years fixed term to date from 8 April 2012;

(f) On Count 6 quash the sentence and taking into account the Form 1 impose a sentence of 7 years non-parole period from 8 October 2012 with a balance of term of 3 years 4 months.

The total effective sentence would be a non-parole period of 10 years with a balance of term of 3 years 4 months. The first date on which the applicant will be eligible for release on parole is 7 October 2019.

Catchwords:

CRIMINAL LAW - sentence appeal - whether sentencing judge took into account irrelevant matter - s 21A(2) Crimes (Sentencing Procedure) Act 1999

CRIMINAL LAW - sentencing appeal - whether judge found special circumstances - whether sufficient weight given to finding of special circumstances

CRIMINAL LAW - sentence appeal - consideration of plea of guilty

CRIMINAL LAW - sentence appeal - disseminate child pornography - whether manifestly excessive

CRIMINAL LAW - sentence appeal - aggravated sexual intercourse offences - whether manifestly excessive - consideration of Form 1 offences

CRIMINAL LAW - sentence appeal - totality principle - whether total effective sentence is manifestly excessive

Legislation Cited:

Crimes Act 1900 (NSW), ss 61J, 61N, 91G, 91H
Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases Cited:

R v Comert [2004] NSWCCA 125
R v Hudson (Court of Criminal Appeal New South Wales, Spigelman CJ, Sully, Ireland JJ, 30 July 1998, unreported)
R v BJW [2000] NSWCCA 60; 112 A Crim R 1
DBW v Regina [2007] NSWCCA 236
Mill v The Queen [1988] HCA 70; (1988) 106 CLR 59
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616

Texts Cited:

Principles of Sentencing, Thomas, 2nd ed (1979) at 56-57

Category:

Principal judgment

Parties:

DJM (Applicant)
Regina (Respondent)

Representation:

Counsel:

P Boulten SC (Applicant)
T Smith (Respondent)
Solicitors:

Ford Criminal Lawyers (Applicant)
S Kavanagh (Respondent)

File Number(s):

2009/224553

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2012-02-20 00:00:00

Before:

Syme DCJ

File Number(s):

2009/224553

Judgment

1. BASTEN JA: Orders should be made as proposed by Blanch J, for the reasons he gives.

1. SIMPSON J: I agree with Blanch J.

1. BLANCH J: The applicant seeks leave to appeal against sentences imposed on him in the District Court on 20 February 2012 as a result of pleas of guilty. The charges, the maximum penalties and the sentences imposed are set out in the following table:

Count 1 Disseminate child pornography to TA (s 91H(2) Crimes Act 1900 - maximum penalty 10 years): 5 years fixed term to date from 8 January 2010;

Count 2 Use child under 14 years for pornographic purposes (s 91G(1)(a) - maximum penalty 14 years): 7 years fixed term to date from 8 July 2010;

Count 3 Aggravated sexual intercourse with person under the age of 16 years on 3 October 2009 (s 61J(2) - maximum penalty 20 years with a standard non-parole period 10 years) and, taking into account on a Form One a charge of disseminating child pornography to PWB (s 91H(2) - maximum penalty 10 years: 10 years and 6 months with a non-parole period of 7 years and 10 months to date from 8 July 2011;

Count 4 Aggravated sexual intercourse with a person under 16 years on 6 October 2009 (s 61J(2) - maximum penalty 20 years, standard non-parole period 10 years) and taking into account on a Form One a charge of aggravated sexual intercourse with a person under age of 16 years by digital penetration on 3 October 2009 (s 61J(1) - maximum penalty 20 years, standard non-parole period 10 years); and a further charge of commit an act of indecency on 3 October 2009 (s 61N(1) - maximum penalty 5 years): 10 years and 6 months with a non-parole period of 7 years and 10 months to date from 8 July 2012;

Count 5 Possession of child pornography (photographs of TA's 13 year old sister)(s 91H(2) - maximum penalty 10 years); fixed term of 18 months to date from 8 October 2009;

Count 6 Aggravated sexual intercourse with a person under the age of 16 years between 1 December 2008 and 1 March 2009 (s 61J(2) - maximum penalty 20 years with a standard non-parole period 10 years); and taking into account on a Form One an offence of aggravated sexual intercourse with a person under the age of 16 years by digital penetration on 6 October 2009 (s 61J(2) - maximum penalty 5 years); 14 years with a non-parole period of 9 years and 6 months to date from 8 July 2013.

The total effective sentence was 17 years and 9 months with a non-parole period of 13 years and 3 months to date from 8 October 2009.

1. To understand the structure of the sentences it is useful to arrange the sentences in the order as imposed by the sentencing judge. That is as follows:

(1) On count 5 - 18 months from 8 October 2009;

(2) On count 1 - 5 years from 8 January 2010;

(3) On count 2 - 7 years from 8 July 2010;

(4) On count 3 and one matter on a Form 1 - a non-parole period of 7 years and 10 months from 8 July 2011 with a balance of term of 2 years 8 months;

(5) On count 4 and two matters on a Form 1 - 7 years and 10 months from 8 July 2012 with a balance of term of 2 years and 7 months;

(6) On count 6 and two matters on a Form 1 - 9 years and 6 months from 8 July 2013 with a balance of term of 4 years and 6 months.

1. The non-parole period of 13 years and 3 months equates to 159 months and approximates the statutory ratio in relation to a head sentence of 17 years and 9 months.

1. The sentencing judge summarised the facts as follows:

"The offender DJM has pleaded guilty to a number of offences relating to sexual abuse of a child, the complainant, who was at the relevant time his stepdaughter. DJM was the complainant's stepfather from when she was 5 years old to the date these offences were revealed when she was 12 and 13 years old.

The offences to which he has pleaded guilty are:

Count 1 - Disseminate child pornography

Between 1 March 2009 and 8 October 2009 he disseminated child pornography by sending it to another person. The facts show that during a search warrant executed at the offender's home a CD was handed over by the offender from his bedroom. The CD contained photographic images of his stepdaughter naked. The offender admitted taking photos contained on the disc between 1 March 2009 and 8 October 2009, in his bedroom at the Rosebery property. The offender admitted that photographs were sent or disseminated by him to TA over MSN Messenger on the internet.

Count 2 - Use child under 14 years for pornographic purposes

Between 1 March 2009 and 8 October 2009 used a child under 14 years, namely 13 years, for pornographic purposes. The photographic images contained on the CD taken during the search warrant were taken by the offender. He activated a webcam so that TA could view the victim getting naked. At the time of this offence the complainant was 13 years old.

Count 3 - Aggravated sexual intercourse (victim under 16 years old)

On 3 October 2009 the offender had sexual intercourse with the complainant, who was 13 years of age, knowing she was not consenting, in circumstances of aggravation (circumstance of aggravation child under 16 years). On 3 October 2009, following the performance of digital penetration, the offender stated that he had penile/vaginal intercourse with his stepdaughter. The offender stated that this occurred in his bedroom at night when the other children were sleeping. He stated that at that time he did not wear a condom and he ejaculated either on the complainant's stomach or into a tissue. At the time of this offence the complainant was 13 years old.

Form 1 He has asked that an offence of Disseminate child pornography - s91H(2) Crimes Act between 1 December 2008 and 1 March 2009 be taken into account on this matter (max penalty 10 years). FACTS: Between 1 December 2008 and 1 March 2009, the offender set up a webcam on his computer. The webcam was used to convey video of his stepdaughter naked and video of the offender performing sexual intercourse with her to PWB. At the time of this offence the complainant was 13 years old. This matter is associated with Count 6 and relates to the broadcasting of sexual intercourse over the internet to PWB.

Count 4 - Aggravated sexual intercourse (victim under 16 years old)

On 6 October 2009, the offender had sexual intercourse with his stepdaughter, who was 13 years old, without her consent, knowing she was not consenting. Following the performance of digital penetration, he had penile/vaginal intercourse with her. The offender stated that this occurred in his bedroom at night when the other children were sleeping. The offender did not wear a condom and he ejaculated either on the victim's stomach or into a tissue. At the time of this offence the complainant was 13 years old.

Form 1 He has asked that a similar matter and a charge of Commit act of indecency (max penalty 5 years), relating to activity on 3 October 2009 (which were associated with the commission of the offence referred to in Count 3) also be taken into account.

Form 1 Counts

i. Aggravated sexual assault (victim under 16 years old): On 3 October 2009 the offender and the complainant were in his bedroom, both naked. He digitally penetrated her vagina. At the time of this offence the complainant was 13 years old.

ii. Commit act of indecency with person under 16 years: On 3 October 2009 the offender stated that while he was penetrating the complainant with his fingers and penis he was rubbing and playing with her breasts. At the time of this offence the victim was 13 years old. These offences are associated with the commission of Count 3.

Count 5 - Possess child pornography

On 8 October 2009 had in his possession child pornography naked pictures of TA's sister who at the time was 13 years old. He also had other images of child pornography. (Details are not included in the facts or tendered).

Count 6 - Aggravated sexual intercourse (victim under 16 years old)

Between 1 December 2008 and 1 March 2009 the offender had sexual intercourse with the complainant, who was 13 years old, without her consent and knowing she was not consenting. He stated that he had penile/vaginal intercourse with the victim. At this time a webcam was set up for PWB to view him having sexual intercourse with the complainant.

Form 1 He has asked that similar matters of commit act of indecency (max penalty 5 years), offences committed on 6 October 2009, and in circumstances which are relevant to Count 4, also be taken into account.

FACTS: 1. On 6 October 2009, the complainant and the offender were in his bedroom, both naked. The offender started rubbing and playing with the complainant's vagina, then digitally penetrated her vagina. At the time of this offence the complainant was 13 years old.

2. On 6 October 2009, the accused stated that prior to digitally penetrating the child's vagina he was rubbing and playing with her breasts. She was 13 years old. These offences are associated with the commission of Count 4. "

GROUNDS OF APPEAL

Ground 1: Her Honour erred by finding that the fact that each of the offences occurred in the complainant's home aggravated each of the sentences.

1. In passing sentence the sentencing judge said:

"Each of the offences was committed in the home of the offender, but due to the nature of the custody arrangements, it was also the home of the complainant, for the period of access. Effectively the victim had no place have (sic) safely to escape to. This is an aggravating circumstance."

1. The argument advanced is that this was an error because the judge must have had in mind s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 which provides it is an aggravating factor if the offence was committed in the home of the victim. Reference was made to authorities such as R v Comert [2004] NSWCCA 125 where it was pointed out this factor operated where a victim was assaulted in their own home by an unauthorised intruder.

1. In my view the statement by the sentencing judge did not have reference to this aspect of s 21A of the Crimes (Sentencing Procedure) Act at all. In the course of her remarks, the judge noted that it was an obvious aggravating feature where the offender was in a position of trust and that the abuse of trust is considered to be more serious where the offender is the father or family member. Her Honour quoted the judgment of Spigelman CJ in R v Hudson (Court of Criminal Appeal New South Wales, Spigelman CJ, Sully, Ireland JJ, 30 July 1998, unreported) at 3 that "... children in a family situation are virtually helpless against sexual attack by the male parent..." and a similar statement in R v BJW [2000] NSWCCA 60; 112 A Crim R 1 where Sheller JA at [21] referred to the fact that "... a child aged 13 or younger is virtually helpless in the family unit when sexually abused by a step-parent."

1. The comments made by the sentencing judge that the victim had no place of safety to escape to was nothing more than a statement of the obvious in relation to these sorts of offences committed in the family home and it does not amount to an asserted double counting of the seriousness of the offence.

Ground 2: Her Honour erred in her assessment of the personal circumstances of the applicant by finding that, "when considering the appropriate ratio of the non-parole period to the parole period, the personal circumstances of the offender are relevant".

1. The sentencing judge did say "... when considering the appropriate ratio of non-parole period to parole period, the personal circumstances of the offender are relevant." It is argued this indicates the judge ignored personal circumstances for all other purposes. However, the sentencing judge did refer appropriately to the personal circumstances of the applicant including his prospects of rehabilitation, the question of remorse and the psychiatric material tendered on his behalf. It cannot be said his personal circumstances were considered only in a limited way. In my view this ground of appeal should be dismissed.

Ground 3: Her Honour erred by failing to give proper effect to her finding of "special circumstances".

1. In her judgment on sentence her Honour said:

"There will be consideration given to the need for an extended period of supervision as part of the sentence. Mr Watson-Munro confirms that such a period of supervision will be necessary to as he puts it "reinforce and galvanise the progress that he has made during the course of his time in prison." This assumes that he will make some progress by meaningful participation in appropriate in-custody programmes. For that reason, an adjustment will be made in the Non Parole ratio for the final offences to reflect the need for supervision on his release, and that consideration ought be given to release, provided he has so participated."

1. The total of the sentences imposed was one of 17 years and 9 months consisting of a non-parole period of 13 years and 3 months and a balance of term of 4 years and 6 months. A non-parole period representing the statutory ratio of 75% would have been 159.75 months whereas the term to be served imposed by the judge was 159 months.

1. The sentencing judge was correct in stating that the fact of accumulation of the last sentence did give rise to special circumstances and it was on that basis she varied the statutory ratio of the last sentence so that the non-parole period in respect of the total sentence approximates the statutory ratio. The question raised is whether or not she should have varied the statutory ratio further to reduce the non-parole period. In view of her findings as to lack of evidence of remorse and unknown prospects of rehabilitation it was open to her to take the view she did. It can be argued he will require supervision on his release but in this case a lengthy sentence is inevitable and it will as a consequence involve a long period on parole even if a sentence is imposed reflecting the statutory ratio.

1. I would dismiss this ground of appeal.

Ground 4: Her Honour erred by failing to moderate the sentences because of the applicant's co-operation with the investigating police and because of the admissions that he made in his record of interview.

1. The applicant argues the sentencing judge should have expressly acknowledged the relevance of the applicant's confession and assistance in accordance with the decision of DBW v Regina [2007] NSWCCA 236 where it was said that a voluntary disclosure of guilt is a factor to be taken into account and given significant weight.

1. The criminality of the applicant came to light because of the arrest of TA, a 26 year old who received pornographic images from the applicant and who sent such images to the applicant. His arrest alerted the police to the activities of the applicant and as a result of a search warrant on his property, items of pornography were found.

1. On the other hand, Count 1 related to a CD containing images of the victim. This CD was handed to the police by the applicant and to that extent his co-operation facilitated the investigation. Moreover so far as this CD is concerned there was limited material presented to the sentencing judge as to what was contained on it and I note her Honour complained of the "deficit of detail" in relation to some of the offences. I do not believe this ground has significance in relation to any of the other counts but it does have relevance to Count 1.

Ground 5: The sentence in relation to Count 1 is manifestly excessive.

1. This ground specifically raises the question of the penalty imposed on Count 1. The maximum penalty is 10 years and a fixed term of 5 years was imposed. A fixed term is generally taken to equate to a non-parole period and that indicates her Honour had in mind a head sentence of 80 months after allowing a discount of 25% and that means it was assessed as warranting a sentence of almost 9 years. That sentence is excessive, bearing in mind the lack of detail available about the images and the fact the applicant volunteered the existence of the disc to the police. The applicant agreed he had directed the child to pose naked with her legs open and her vagina spread. It is an offence that calls for a sentence that reflects how serious the offence was but the sentence imposed went beyond what was appropriate. I would allow the appeal on this ground and impose a fixed term of 3 years.

Ground 6: The sentences in relation to Counts 3, 4 and 6 are manifestly excessive.

1. Counts 3 and 4 are offences involving a maximum penalty of 20 years with a standard non-parole period of 10 years. Individually they are serious offences also involving matters on a Form 1. The sentences imposed are significant and individually they are not excessive. These offences involved a significant breach of trust in relation to a young girl, with multiple acts over a considerable period of time. They call for significant punishment. The real question at the end of the day is to what extent these sentences should be accumulated on the other sentences imposed and that is a question to be addressed in the last two grounds.

1. In relation to Counts 1 to 5 her Honour allowed a discount of 25% for the plea of guilty. On Count 6 a discount of 12½ percent was applied because of a late plea and that indicates a starting point of 16 years. On Counts 3 and 4 the starting point was 14 years discounted by 25%. That gives rise to the question as to what justifies the distinction. The three counts involved the same conduct with matters on a Form 1 to be taken into account. The complainant was 13 years old at the time of all the offences. The matters taken into account in respect of Counts 3 and 4 were arguably more serious. I do not believe a distinction is justified other than the discount for the plea of guilty and the fact the sentence is to be cumulative on the other sentences.

1. Otherwise, the sentences on Counts 3 and 4 were appropriate sentences but I propose the sentence imposed on Count 6 be set aside and another sentence imposed.

Ground 7: Her Honour erred by failing to have sufficient regard to the principle of totality.

1. It is further argued the judge had insufficient regard to the principle of totality, particularly since all the offences were part of an extended course of conduct. The principle relating to totality was explained in Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 where at [18] the Court considered Mill v The Queen [1988] HCA 70; (1988) 106 CLR 59 and said:

"In Mill (supra), Wilson, Deane, Dawson, Toohey and Gaudron JJ adopted a statement from Thomas, Principles of Sentencing, 2nd ed (1979) at 56-57:

"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is "just and appropriate". The principle has been stated many times in various forms: "when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong ["]; "when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences".'"

1. The Court went on to say at [26]:

"The first matter to be noticed in this regard is that the joint judgment in Pearce recognizes the currency of Mill by referring to the principle of totality which it reiterates (1998) 194 CLR 610 at 624 [45] per McHugh, Hayne and Callinan JJ. The joint judgment in Mill expresses a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency. Pearce does not decree that a sentencing judge may never lower each sentence and then aggregate them for determining the time to be served. To do that, is not to do what the joint judgment in Pearce holds to be undesirable, that is, to have regard only to the total effective sentence to be imposed on an offender. The preferable course will usually be the one which both cases commend but neither absolutely commands. Judges of first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected. The trial judge here did not offend any of the principles stated in Mill or Pearce. His only error may have been to fail to state starting and ending dates, but this was neither to apply a uniquely Western Australian principle, nor otherwise to make an appealable error. What his Honour intended was obvious enough and did not fail in substance to give effect to the Act."

1. The sentencing judge gave careful consideration to each of the sentences and she was conscious of the need to fix the last sentence in such a way as to achieve a balance in respect of the whole sentence. For the reasons given there is a need to review the sentences on Counts 1 and 6 and in that sense to review the total sentence but apart from that I do not believe her Honour departed from the sentencing principles as expressed in Johnson v The Queen (supra). I would reject this ground of appeal.

Ground 8: The total effective sentence is manifestly excessive.

1. For the reasons given in respect of Counts 1 and 6, I believe the total sentence is manifestly excessive and I would allow this ground of appeal to that extent.

1. In order to achieve the necessary balance between the head sentence and the non-parole period and taking into account the principle of totality, I propose the following orders:

(1) Leave to appeal be granted.

(2) Appeal allowed.

(3) Impose sentences as follows:

(a)   On Count 5 confirm the sentence of 18 months fixed term to date from 8 October 2009;

(b)   On Count 1 quash the sentence and impose a sentence of 3 years fixed term to date from 8 April 2010;

(c)   On Count 2 confirm the sentence of 7 years fixed term but order the sentence to date from 8 October 2010;

(d)   On Count 3 quash the sentence and taking into account the Form 1 impose a sentence of 7 years fixed term to date from 8 October 2011;

(e)   On Count 4 quash the sentence and taking into account the Form 1 impose a sentence of 7 years fixed term to date from 8 April 2012;

(f)   On Count 6 quash the sentence and taking into account the Form 1 impose a sentence of 7 years non-parole period from 8 October 2012 with a balance of term of 3 years 4 months.

The total effective sentence would be a non-parole period of 10 years with a balance of term of 3 years 4 months. The first date on which the applicant will be eligible for release on parole is 7 October 2019.

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Decision last updated: 06 May 2013