Moorhouse v The Queen

[2018] NSWDC 291

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Moorhouse v R [2018] NSWDC 291

Hearing dates:

11 December 2017 & 23 February 2018

Date of orders:

23 February 2018

Decision date:

23 February 2018

Jurisdiction:

Criminal

Before:

Bennett SC DCJ

Decision:

1. Appeal allowed

2. Confirm the convictions in each case

3. Set aside the aggregate term of imprisonment imposed by the Magistrate

4. Aggregate sentence of imprisonment of 2 years, adopting the indicative sentences announced by the Magistrate, to be served by way of ICO

Catchwords:

CRIME — Appeal and review — Appeal from Local Court to District Court — By person sentenced against sentence

CRIME — Child sex offences — Child abuse material — Production

CRIME — Intimate images — Film person in private act without consent

Legislation Cited:

Crimes(AdministrationofSentences)Act1999

Crimes (Administration of Sentences) Regulation 2014

Crimes(SentencingProcedure)Act 1999

Crimes(SentencingProcedure) Regulation2010

Category:

Sentence

Parties:

Benjamin Moorhouse (Appellant)
Regina (Crown)

Representation:

Mr Terracini SC (counsel for the Appellant)
Mr Kiru (Crown solicitor)

Director of Public Prosecutions (NSW) (Crown)

File Number(s):

2017/00088350

 Decision under appeal 

Court or tribunal:

Parramatta Local Court

Jurisdiction:

Criminal

Date of Decision:

21 November 2017

Before:

M Richardson LCM

File Number(s):

2017/0008350

REVISED EX TEMPORE JUDGEMENT

Introduction

1. Benjamin Moorhouse pleaded guilty in the Local Court to a series of offences that occurred between 10 February 2017 and 20 March 2017. These were filming a person in a private act without consent for the purposes of sexual arousal. There were three of those. There were offences of installing a device to observe or film another person, three of those, and there was one of producing child abuse material.

The Facts

2. Briefly stated, the appellant had gone to railway stations at North Sydney and Parramatta and installed cameras in the unisex toilets at those locations positioned to capture patrons in private acts in the course of which they were clearly required to remove clothing and expose their genitalia. He also did the same at Westfield at Parramatta. His focus was upon adult females, but he consequently also captured male persons and children from time to time. There were multiple images upon the devices when they were located and investigated.

The Sentences

3. The child abuse offence, produce child abuse material, attracted the longest indicative sentence of 16 months against a maximum penalty upon indictment of ten years. For two of the filming a person in a private act he was advised of indicative sentences of four months each and for the third of those three months. Similarly, with installing the camera, for two of those offences the indicative sentence was four months each and in the third three months.

4. The magistrate chose an overall aggregate sentence of 20 months, including a non‑parole period of six months, commencing on 21 November 2017.

5. In my view that sentence was less than ought to have been imposed once one came to the view that s 5 Crimes (Sentencing Procedure) Act 1999, upon proper application of that provision, required the imposition of a custodial sentence. I announced my view and Mr Terracini SC informs me that his client is aware of that as a possible outcome in the proceedings, and he needs not take further instructions. I accept that he has advised his client accordingly and has instructions to press on regardless.

6. I am invited to consider the intensive correction order provisions in the Crimes (Sentencing Procedure) Act. In recent times the Bureau of Crime Statistics published a report speaking to the extent to which they have been successful in preventing recidivism in contrast to sentences of short duration, whether by fixed term or non‑parole periods, where offenders have been shown more likely to re-offend. I have been monitoring the intensive correction orders that I have imposed since those orders were brought into existence and upon my perception of matters they seem to be having their desired effect. I am aware of only one where the offender failed to meet his obligations, and I am about to deal with that matter, a federal prosecution, by replacing the ICO with a custodial sentence.

7. Should the appellant in this case not meet his obligations under the orders that will follow, should he be found suitable, he will be taken in by the parole authorities who have responsibility for State offences if there has been a failure to comply with the conditions.

8. The summary I have provided provides sufficiently to understand the significance of the misconduct. This is serious offending. Members of the community of whatever gender, of whatever age, should feel safe in the knowledge that they can use private facilities provided by State Rail or commercial premises without the fear that there might be someone such as this offender invading their privacy, in such a gross fashion.

9. General deterrence has a significant role to play in this prosecution and hence my assessment that an aggregate sentence of two years is called for. However, I am not satisfied that a custodial component of six months will serve a great deal of purpose. It would be better, in my judgement, to have the appellant the subject of an intensive correction order for two years to build upon the benefits that have been derived from his efforts to rehabilitate, which I must accept upon the material before me. At the same time, two years under the terms of an intensive correction order is a significant punishment and, indeed, on one view it is likely to be said to be more onerous than a short, sharp period in gaol after which he is entitled to be released to parole with supervision which will not require the extensive conditions that will attach to an ICO.

The Appellant

10. He is 41 years of age now. He has never been in trouble before. He has been otherwise a person of good character, providing for his wife and two children, gainfully employed, and together they were making good progress and providing for themselves and the children well. 18 months before these events there was a disruption to their marriage through a decision made by his wife which was in turn the product of deterioration in their marriage. It was a combination of things, which I accept, pressure at work and the burden of the nature of his upbringing in his formative years, his alcoholic father and his mother divorced, both re-married, both subsequent marriages failed. In those years the appellant received less than adequate parenting and nurturing.

11. It is accepted that those circumstances will continue to burden one through the formative years, teenage years and ultimately young adulthood. The majority of people weather those difficulties and get on with their lives, but not everyone is as robust, and this appellant is clearly one of the people who is less capable of coping with such stressors and he consequently evolved into a severe depression and anxiety. He found himself unable to cope with work and it would appear, perhaps to punish his wife, perhaps to cope with his own emotional turmoil, he embarked upon this behaviour.

Consideration

12. I accept his contrition. I accept his remorse. I accept that there are strong prospects for rehabilitation with proper supervision and further guidance by psychologists. But, he must be punished and the ICO will serve that purpose. His conduct must be denounced and imprisonment of two years in the form I am proposing will reflect that. I am satisfied that it will reflect the harm that he has caused by the extent of his misconduct and the nature of it.

Decision

13. For those reasons I shall allow the appeal.

14. The conviction is confirmed in each case and I adopt the indicative sentences announced by the magistrate. However, the aggregate sentence of imprisonment I intend to impose is one of imprisonment for two years. I have taken into account the fact that he has been in custody for a short period of time, he has been on bail throughout these proceedings, and he has also suffered significant limitation by way of the submission to the various therapies that have been made available to him, including time in The Hills Hospital.

15. Pursuant to s 69 Crimes (Sentencing Procedure) Act 1999 I refer him for assessment as to his suitability to serve the sentence by way of intensive corrections in the community. To that end he is to report to Community Corrections at Gosford no later than Friday of this week. I propose to allow him bail. The conditions of the bail are that he be of good behaviour. He is to appear before Court if called upon to do so during the currency of the adjournment. I require him to report to Gosford Police each Monday, Wednesday and Friday between the hours of 8am and 8pm and he is to report to Community Corrections at Gosford no later than Friday of this week. [1]

Introduction [2]

1. The matter was then adjourned until 23 February 2018 to allow time for the preparation an assessment report as to the Appellant’s suitability to serve the sentence by way of ICO.

2. At this point the matter was being heard on 23 February 2018 after the adjournment for the assessment report.

16. Benjamin Moorhouse appeared before me for appeal from sentence on 11 December 2017. He was before then sentenced by a magistrate to imprisonment for offences to do with the creation of child abuse material and the installation of devices for that purpose. I need not elaborate upon the charges upon which he was presented. The magistrate, as I said, sentenced him to imprisonment.

The Appeal

17. Upon hearing the appeal I came to the view that the matter could be dealt with by way of an aggregate sentence of two years, but before I implemented the sentence I wanted the appellant assessed for his suitability to serve a sentence by way of an intensive correction order in the community.

18. I delivered judgement and pursuant to s 69 Crimes (Sentencing Procedure) Act 1999 I deferred implementation of the sentence and referred the offender for assessment. He was assessed by the Community Corrections office in Gosford and I have the report of Lisa D'Annibale on 19 February 2018.

Decision

19. I am satisfied that the report addresses the matters required by the Crimes (Sentencing Procedure) Regulation 2010. The report states that the appellant is suitable to serve his sentence by intensive correction order.

20. The convictions for the offences in respect of which he appealed are confirmed.

21. I sentence him to an aggregate sentence of imprisonment of 2 years. Pursuant to s 7(2) Crimes (Sentencing Procedure) Act 1999 I order that the sentence is to be served by way of intensive correction in the community and pursuant to s 71 of the Act I order that the sentence is to commence today.

22. Pursuant to s 81 Crimes (Administration of Sentences) Act 1999 and in accordance with the Crimes (Administration of Sentences) Regulation 2014, the intensive correction order is subject to conditions. Just come up to the microphone, please, Mr Moorhouse. I want you to understand these and I want it on the record that you have been told of them.

23. During this next two years you are to be of good behaviour and not commit any offences. You are to be available from today for the commencement of the sentence and you are to report to Community Corrections for appropriate arrangements.

24. OFFENDER: In Gosford, your Honour?

25. HIS HONOUR: Yes, to the Gosford office, within seven days of today. You are to reside only at the premises approved by your supervisor. You are prohibited from leaving or remaining out of New South Wales without the permission of the Commissioner. You are prohibited from leaving or remaining out of Australia without the permission of the parole authority. You are to receive visits by a supervisor at your home at any time for any purpose connected with the administration of the order. You are to authorise your medical practitioner, therapist or counsellor to provide to your supervisor information about you that is relevant to the administration of the order.

26. You are to submit to searches of places or things under your immediate control as directed by your supervisor. You are prohibited from using prohibited drugs, obtaining drugs unlawfully, or abusing drugs lawfully obtained. You are to submit to breath testing, urinalysis, or other medically approved test procedures for detecting alcohol or drug use as directed by your supervisor. You are prohibited from possessing or having in your control any firearm or other offensive weapon.

27. You are to submit to such surveillance or monitoring, including electronic surveillance or monitoring, as your supervisor may direct, and comply with all instructions given by your supervisor in relation to the operation of surveillance or monitoring systems. You are prohibited from tampering with, damaging or disabling any surveillance or monitoring equipment applied to you.

28. You are to comply with any direction given by your supervisor that requires you to remain at a specified place during specified hours or that otherwise restricts your movement during specified hours. You are to undertake a minimum of 32 hours' community service work per month as directed by your supervisor from time to time, and you are to engage in activities to address the factors associated with your offending as identified in the report or that become apparent during the term of the order as directed by your supervisor from time to time. There are four areas that require some focus. They are with regard to family and marital matters, your emotional and personal circumstances, your attitude and orientation and the question of sexual offending.

29. You are to comply with all reasonable directions of your supervisor and you are to submit, if required, to a medical examination by a specified medical practitioner as directed by your supervisor in relation to your capacity to undertake community service work or otherwise comply with your obligations.

30. Additional conditions to those are that you must not enter or loiter around Copacabana Public School and you are not to be in the company of children, including your own, unless in the company of a responsible adult, and that would include your wife, for so long as your supervisor considers that the condition should continue to apply. To repeat that, that condition will apply for so long as your supervisor deems it appropriate or necessary to continue.

31. The matter now is in the hands of the parole authorities. You will not come back to court if there is a breach, they will simply call you before them and deal with you, and that leaves alive the prospect of having the sentence converted into a custodial sentence in gaol rather than in the community under intensive corrections.

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Endnotes

Amendments

18 March 2021 - Minor typo correction

Decision last updated: 18 March 2021