M J K v Tasmania

[2015] TASCCA 21

[2015] TASCCA 21

COURT:       SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)

CITATION:              M J K v Tasmania [2015] TASCCA 21

PARTIES:  K, M J
  v
  STATE OF TASMANIA

FILE NO:  CCA 793/2014
DELIVERED ON:  4 September 2015
DELIVERED AT:  Hobart
HEARING DATE:  21 August 2015
JUDGMENT OF:  Blow CJ, Porter and Pearce JJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Sentence manifestly excessive or inadequate – Six counts of producing child exploitation material and two related charges – Sentence of 4 years' imprisonment with non-parole period of 2 years.

Aust Dig Criminal Law [3521]

REPRESENTATION:

Counsel:
           Appellant:  In person
           Respondent:  A Shand
Solicitors:
           Appellant:  In person
           Respondent:  Acting Director of Public Prosecutions

Judgment Number:  [2015] TASCCA 21
Number of paragraphs:  10

Serial No 21/2015

File No CCA 793/2014

M J K v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW CJ
PORTER J
PEARCE J
4 September 2015

Order of the Court

Appeal dismissed.

Serial No 21/2015

File No CCA 793/2014

M J K v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

BLOW CJ
4 September 2015

1. This is a sentencing appeal. During 2006, the appellant made six pornographic video recordings depicting his 5 year old niece.  He was prosecuted in relation to that conduct during 2014.  He pleaded guilty to six charges of producing child exploitation material, one charge of possessing child exploitation material (the six recordings), and a related charge of indecent assault.  He committed the crime of indecent assault on one of the six occasions by stroking his niece's legs when she was posing for the camera with her vagina exposed.  Tennent J convicted the appellant on all eight charges and sentenced him to 4 years' imprisonment, with a parole ineligibility period of 2 years.  Through his then solicitor, he appealed to this Court from that sentence.  The notice of appeal asserts only that the sentence was manifestly excessive. 

2. At the hearing of this appeal, the appellant was not legally represented.  He filed a written outline of submissions prior to the hearing.  In his written material, he asked the Court "to note that the question of sentencing length is not in question".  At the hearing he confirmed that he did not want to argue that the sentence was excessive.  However he has not discontinued the appeal, and this Court must therefore determine it.  It appears that the appellant was aggrieved not by his sentence, but by a number of things that were said during the sentencing proceedings.  I will address those points briefly in order to demonstrate that they are all of little or no relevance to the length of the sentence.

3. The appellant's concerns, as revealed in his written submissions, and my comments in relation to those concerns, are as follows:

   ·    At some stage after committing these crimes in Tasmania, the appellant went to live in New South Wales.  In sentencing him, Tennent J referred to "the tapes which had travelled with you to New South Wales".  The appellant is adamant that no relevant tapes or video material ever travelled to New South Wales with him.  However that makes no difference to the appropriateness of the sentence that he received for the crimes committed in Tasmania.

   ·    The appellant has two sons.  When sentencing him, Tennent J said that he had had the care of his two children at times. The appellant stated in his written material that he was the full-time custodian and primary care-giver of the elder son, but that his younger son was 8 months old when he and his wife separated, and resumed contact with him only in the month when he turned 16.  Those matters have no bearing on his sentence.

   ·    In her sentencing comments, her Honour suggested that the appellant "will perhaps have grandchildren in the future".  The appellant has pointed out that he already had a granddaughter.  That information would not have resulted in a more lenient sentence.

   ·    In relation to count 2 on the indictment, the Crown asserted that the appellant stood in front of the camera, pulled his pants and underwear down, and moved his naked bottom in front of the camera.  That assertion was not disputed by the appellant's counsel during the sentencing proceedings.  In sentencing the appellant, her Honour said that he had appeared naked with the child on the film.  The appellant contends that he did not appear naked, that he has no distinctive markings on or about his lower body, and that his nudity cannot be proved.  There does not appear to be any dispute that (a) an adult's naked bottom appeared in the footage in question; (b) the appellant was responsible for filming that footage; and (c) the footage in question amounted to child exploitation material.  I do not think it matters whether the person in question was fully naked or partly clothed, nor whether it was the appellant's bottom or someone else's.

   ·    The appellant has said in his written material that a Tasmanian police officer asserted in proceedings in the Court of Petty Sessions that he used the word "fetish", when he did not.  However it was not asserted in the sentencing proceedings that he ever used that word. 

   ·    The appellant has stated that a detective from New South Wales incorrectly attributed "dialogue" to him.  However no mention was made in the sentencing proceedings of any such "dialogue". 

   ·    For the purpose of the sentencing proceedings, a statement of facts was prepared in advance by the Crown.  Paragraph 18 of that statement asserted that the appellant was required to appear in the Port Macquarie Local Court in New South Wales on 15 January 2014, but failed to appear.  When the prosecutor was reading from that statement during the sentencing proceedings, he did not read out that part of the document, and said that he did not rely on that paragraph.  The appellant says that he had not been served with any papers requiring him to appear in that court on that day.  There is no dispute about that.  The prosecutor told her Honour that the appellant had not been served with a summons to appear there that day. 

   ·    According to the appellant's written material, a detective incorrectly stated in proceedings in the Court of Petty Sessions that "the victim was given some lollies from a jar". Any such false statement is irrelevant because it was not repeated in the sentencing proceedings.

   ·    The Crown statement of facts included an assertion that the appellant used a false name when he booked into a caravan park in Tasmania in 2014.  The appellant is aggrieved by that assertion.  However the prosecutor told her Honour that that assertion was not relied on.  Unfortunately her Honour stated in her sentencing comments that the appellant had started staying at the caravan park "under another name".  However any mistake as to whether the appellant was then trying to conceal his identity would have made no difference to his sentence. 

   ·    The appellant contends that her Honour's sentencing comments suggested that he had left New South Wales in late 2013 in "some covert manner" when in fact two New South Wales detectives knew of his plans to travel to Tasmania and agreed that he could.  Once again, any mistake as to the circumstances of the appellant's travelling in late 2013 would not have made any difference to the length of his sentence for the things he did in 2006.

   ·    The appellant is unhappy that he was not able to spend more time with his legal representatives at the time of the sentencing proceedings.  They were officers of the Legal Aid Commission of Tasmania, and were no doubt quite busy.  If time pressures had resulted in information as to any mitigating fact not being placed before the learned sentencing judge, that would have been a serious matter.  However it has not been suggested that any particular information that might have resulted in a shorter sentence was not communicated as a result of shortage of time.

   ·    The appellant's written material contains criticisms in relation to things that, according to him, were said by the learned sentencing judge in the course of the sentencing proceedings. He appears to be unhappy about her tone of voice and her demeanour.  It may be that she was disgusted by his crimes.  However there is no suggestion that his counsel was not given a fair hearing, and there is nothing to indicate any impropriety in the comments that her Honour made when explaining the matters relevant to the sentencing of the appellant.

4. The appellant's crimes warranted a significant prison sentence because of the following facts and circumstances:

   ·    The victim was only 5 years old, and therefore extremely vulnerable.

   ·    The recordings made by the appellant showed her naked, displaying her genitalia and her anus.  They showed her removing her underwear and exposing and touching her genitalia at the appellant's direction. One recording showed her simulating masturbation and pretending to climax. One recording showed the appellant posing her so that her vagina was exposed, and then stroking her legs.

   ·    Two of the recordings were made in the presence of another child, who was about 7 years old.

   ·    The crimes involved significant breaches of the trust placed in the appellant by the child and her mother, they being his niece and his sister.

   ·    The crimes occurred in the child's home. 

   ·    The crimes were predatory.

   ·    The appellant is 35 years older than the child.

   ·    He persisted with his conduct despite protestations by the child. 

   ·    By encouraging the child to behave in a sexualised manner, he made her vulnerable to sexual abuse by others, though there is no suggestion that any such sexual abuse occurred.

   ·    Whilst there is no suggestion that the child has suffered any psychological harm as a result of these crimes, there remains a real risk that they will have an impact on her mental health or psychological well being.  The extent of any such impact is impossible to predict.

   ·    On two occasions, upon the appellant getting the child to perform certain physical acts, she complained to the effect of, "It hurts."

5. Police officers in New South Wales found a large quantity of child pornography, unrelated to the appellant's niece, in his possession in November 2013.  Apparently he had downloaded that material from the internet.  Whilst he was not charged in relation to that material in Tasmania, his possession of it is relevant because it shows the need for a sentence designed to deter him from committing child pornography offences.

6. There were a number of mitigating factors that the learned sentencing judge was required to take into account.  Those factors, and my comments in relation to them, are as follows:

   ·    The appellant had no relevant prior convictions.  However that is common in child pornography cases.

   ·    The appellant had a good work record, with qualifications in a particular field of work.

   ·    The appellant made some admissions to police officers when interviewed.

   ·    The appellant pleaded guilty, thereby avoiding the need for witnesses to give evidence and saving the State the cost and inconvenience of a trial.

   ·    The appellant had obtained professional assistance in relation to psychiatric problems diagnosed as post-traumatic stress disorder, and thought to result from a motor vehicle accident in which he was seriously injured in his late teens.  He has also obtained treatment for stress and anxiety.

   ·    His father died in New South Wales between his arrest and his sentencing.  He was unable to go to the funeral or to return to care for his elderly mother.

7. In a sentencing appeal, when a sentence is challenged on the ground that it is manifestly excessive or manifestly inadequate, the appeal court has to decide whether that sentence is "unreasonable or plainly unjust": House v The King (1936) 55 CLR 499 at 505. Having regard to all of the circumstances relating to the crimes and the appellant, I am not satisfied that either the head sentence or the non-parole period was manifestly excessive. A slightly lighter sentence would have been unimpeachable, but, in my view the head sentence of 4 years' imprisonment, while heavy, was not too heavy. It was not out of proportion to the gravity of the appellant's offending. And the non-parole period of 2 years, being half of the head sentence, was the shortest that the law permits: Sentencing Act 1997, s 17(3).

8. I would therefore dismiss the appeal.

File No CCA 793/2014

M J K v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

PORTER J
4 September 2015

1. Save that I would prefer not to express a precise view about the particular weight of the sentence, I agree with Blow CJ.  The sentence is not manifestly excessive and the appeal should be dismissed.

File No CCA 793/2014

M J K v STATE OF TASMANIA

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

PEARCE J
4 September 2015

1. I agree with Blow CJ and would also dismiss the appeal.