R v CR

Case •

[2019] NSWDC 884

•

03 December 2019

No judgment structure available for this case.

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v CR [2019] NSWDC 884
Hearing dates: 9 August, 3 December 2019
Date of orders: 03 December 2019
Decision date: 03 December 2019
Jurisdiction:Criminal
Before: Wilson SC DCJ
Decision:

Full time custodial sentence. Decision at [113] – [115]

Catchwords: CRIME – sentencing – child abuse material – hardship to family
Legislation Cited: Child Protection (Offenders Registration) Act 2000
Crimes Act 1900 ss 91G; 91H
Crimes (Sentencing Procedure) Act 1999 ss 3A; 5; 21A
Cases Cited: Benitez v R [2006] NSWCCA 21
Bugmy v The Queen (2013) 249 CLR 571
Dipangkear v R [2010] NSWCCA 156
Lee v R [2019] NSWCCA 15
Markarian v The Queen (2005) 228 CLR 357
Minehan v R [2010] NSWCCA 140
Muldrock v The Queen (2011) 244 CLR 120
R v Henry (1999) 46 NSWLR 346
R v Hutchinson [2018] NSWCCA 152
Tepania v R [2018] NSWCCA 247
Category:Sentence
Parties: Regina (Crown)
CR (Offender)
Representation:

Counsel:
B Narula (Offender)

  Solicitors:
ODPP (Crown)
Blair Criminal Lawyers (Offender)
File Number(s): 2011/00364001; 2016/00148663; 2017/00080218
Publication restriction: Non-Publication Order with regards to the name of the Offender and any information which may identify or lead to identification of victims

Judgment

  1. The Offender appears before the Court today for sentencing in relation to a number of serious matters. He is facing four principal offences and has attaching to at least one of them a charge on a Form 1 document.

  2. The first charge is producing child abuse material in breach of s91H(2) of the Crimes Act. That carries a maximum penalty of ten years imprisonment and that charge is sequence 4 of charge number H ending 717.

  3. The second charge is use child under the age of 14 to produce child abuse material, in breach of s91G(1)(a) of the Crimes Act. That carries a maximum penalty of 14 years imprisonment, and a standard non-parole period of six years. That is sequence 2 in charge number H ending 274.

  4. The third charge is the same as the second, that being use child under the age of 14 to produce child abuse material, in breach of s91G(1)(a) of the Crimes Act. The maximum penalty is 14 years imprisonment with a standard non-parole period of six years. That is sequence 3 of charge number H ending 274.

  5. The fourth charge for sentence is possessing child abuse material in breach of s91H(2) of the Crimes Act which carried a maximum penalty of ten years imprisonment. That is sequence 4 of charge number H ending 274.

  6. As I mentioned, there is also a charge being sequence 3 of charge number ending 117. That is possess child abuse material, on a Form 1 document that carries a maximum penalty of ten years imprisonment, and attaches to sequence 4 in charge number H ending 717.

  7. There are no related or backup offences.

  8. I will sign the Form 1 document certifying and confirming that I have taken that charge into account in sentencing the Offender in relation to the first announced offence. The charge on the Form 1 document is to be taken into account with a view to increasing the penalty that would otherwise be appropriate for the principal sequences. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrents and the second is the community's entitlement to extract retribution for serious offences.

  9. In relation to the s91G(1)(a) offence, that is, using a child under the age of 14 to produce child abuse material, there is a standard non-parole period. The relevance of a standard non-parole period was most recently considered by the Court of Criminal Appeal in Tepania v R [2018] NSWCCA 247, where Johnson J at [110] summarised the propositions that arose from the legislation in which the provision relevant to the standard non-parole periods are found after Muldrock v The Queen (2011) 244 CLR 120. The standard non-parole period is a matter to be taken into account as part of the determination of sentence.

  10. The standard non-parole period applies to an offence found within the middle of the range of objective seriousness for such an offence, taking into account only objective factors, without bringing into account factors or matters that are unique to the Offender or the class of offenders. Ultimately, the standard non- parole period is but one factor to be taken into account in the sentencing exercise, together with the objective and subjective matters which are considered in synthesis in accordance with what McHugh J described in Markarian v The Queen (2005) 228 CLR 357.

  11. Even though an offence might be found to be within the middle of the range of objective seriousness, it does not follow that the standard non-parole period will apply, nor shall there be a percentage calculation performed where the offence might be found lower on the scale of seriousness. The process is not mathematical, but rather it is intuitive. In my view, having taken into account the subjective matters, to which I will refer in a moment, together with the plea of guilty at an early stage, the standard non-parole periods, whilst a guide, ought not be applied in this case.

  12. According to Exhibit A in the Crown Sentence Summary, the offences occurred on 14 May 2016, although there is also reference to the dates of 17 September 2010 through to 21 December 2013, and to 20 July 2011 through to 26 December 2013. The Offender was arrested for the first time on 14 March 2016 and kept in custody for a short period, before being arrested for a second time and kept in custody until today from 15 March 2017. I should just pause and note that the Offender had previously been charged with an offence of producing or possessing child abuse material.

  13. Having regard to Exhibit E, it is apparent that the evidence establishes in respect of the 2009 offence the Offender was found in possession of 13 discs containing roughly 2,000 images of a young female posing in provocative positions of a sexual nature and one VHS tape containing images of young females. That gave rise to the charge which encapsulates producing, disseminating and possessing child pornography – although, plainly, the act in question was that of possession.

  14. As a consequence of that offending the Offender was charged on 1 November 2011. Why there was such a delay in charging him is not at all clear, although I infer from the facts in relation to the earlier offending that various appliances and devices were seized by the police, which required analysis, and which may have taken some time.

  15. In any event, the Offender appeared before the North Sydney Local Court on 15 July 2013 in respect of the 29 December 2009 offence and pleaded guilty. The Magistrate, having been satisfied of the need for imprisonment pursuant to s5 of the Crimes (Sentencing Procedure) Act, imposed a sentence of six months, however suspended the sentence of imprisonment upon the Offender entering into a bond pursuant to s12, with six months supervision by New South Wales Probation Services. In today's sentence hearing the Crown tendered a copy of the bond. The bond was to comply with the conditions of s12 and was imposed by the Magistrate on 15 July 2013 in relation to the offence of possessing child pornography.

  16. Although he was sentenced to a period of imprisonment of six months from 15 July 2013, the Court directed the Offender be released from custody on condition that he enters into a good behaviour bond pursuant to s12. The conditions of the good behaviour bond were that the Offender must be of good behaviour and appear before the Court during the bond term if required. He was also to accept supervision by Community Correction Services for as long as considered necessary and obey all reasonable directions, including directions for counselling and the like.

  17. It was whilst the Offender was the subject of that bond that some of the subject offending occurred, which is obviously a statutory aggravating factor to be taken into account pursuant to the Crimes (Sentencing Procedure) Act.

  18. Although the original Crown sentence summary (Exhibit A) did not identify the fact that the Offender was on a bond at the time of this offending, subsequent investigations confirmed that in fact he was, and counsel for the Offender has agreed with that proposition. Accordingly, the bond is to be revoked today together with the sentence imposed in respect of that offending.

  19. Having regard to the time spent in custody, including in 2016 and from 15 March 2017, it is agreed that the commencement date for the sentence shall be 9 March 2017.

  20. Also forming part of Exhibit A are the Agreed Facts which will form the basis, amongst other considerations, of the sentence to be imposed upon the Offender. The following are the Agreed Facts:

  21. The Offender was born on 21 June 1966 and is now 53 years of age. The Offender is a registered person pursuant to the Child Protection (Offenders Registration) Act because of the conviction on 15 July 2013 for the charges of possessing child pornography.

  22. At 10.38am on 14 May 2016 police attended an address in Forestville to conduct an annual inspection of the Offender's premises. The Offender consented to police entering the premises and conducting the search. The Offender identified to police a small room at the front of the house. The Offender's laptop computer and a Western digital external hard drive inside a laptop bag were located in the room. The Offender was sweating and appeared nervous. He said to police, "Should I call my wife to come and get the kids". Police replied, "Why?” to which the Offender said, "Because I'll be going to the police station soon". Police examined the Western digital external hard drive. Located on the hard drive was child abuse material. The Offender was then arrested.

  23. The following facts relate to sequence 3, which is on the Form 1 document. That charge is possessing child abuse material. The hard drive contained picture and video files of a sex doll emulating a prepubescent female wearing children's clothing. All the pictures were still shots taken from the videos. The Offender was depicted in the picture and video files having penile/vagina sexual intercourse and oral sexual intercourse with the sex doll.

  24. The following facts relate to sequence 4, which is the first count in the Crown Sentence Summary of produce child abuse material. The hard drive contained a number of picture files of the sex doll digitally imposed on the face of the sex doll were the faces of children under the age of 12 years old. The doll was posed in sexual poses. The Offender was then charged with sequences 3 and 4 in respect of charge number H ending 717 on 14 May 2016. Located on the hard drive was a folder titled "New folder/XXXX". The folder contained a number of subfolders with titles such as "Boobs and panties, XXXXX EMS legs wide open, Fakes and other girls". Two children were identified in the pictures and videos contained in the folder, they were identified as the children of the sister of the Offender's wife.

  25. The age of the victims at the date that the images were made was considered from the date stamps on the images. One victim was between the ages of 11 and 13 and the other was just between four and seven years of age. On 16 August 2016 both child victims were electronically interviewed at the Penrith Child Abuse Squad Office. Neither victim disclosed any offences being committed upon them.

  26. On 15 March 2017 the Offender was charged with sequences 2, 3 and 4 of charge number H ending 274. They are the last of the three counts for sentence today.

  27. The following facts relate to sequence 2 of that charge number. That is, use child under the age of 14 to produce child abuse material. All of the images in CET category 1 below were still shots taken from the video. The material relating to the first victim was characterised using the child exploitation tracking system CET scale as follows:

  1. category 1 are images or depictions of children with no sexual activity (e.g. nudity, wearing underwear, nakedness, sexually suggestive posing and the like with explicit emphasis on the genital area). Falling within that category in relation to the first victim were 283 images and one video;

  2. category 2 is non-penetrative sexual activity between children or solo masturbation by a child. In relation to the first victim there was one such image;

  3. category 3 is non penetrative sexual activity between children and adults. Falling within that category in relation to the first victim were three images;

  4. category 4 is penetrative sexual activity involving children or both and children adults. In relation to category 4;

  5. category 5 no images were found;

  6. category 6, that is, cartoons, comics, drawings depicting children engaged in sexual poses or activity. In relation to the first victim there were seven such images; and

  7. in relation to category 7, that is, no illegal child material, there were 273 images.

  1. In total there were 294 images of the first victim falling within categories 1 through 6 and one video comprising some 295 files. There was a separate category 9, that is, ignorable images, of which there were 972 images and some 16 videos.

  2. The following facts relate to sequence 3, use child under the age of 14 to produce child abuse material. All of the images in CET category 1 below were still shots taken from the video.

  3. The material relating to the second victim was categorised using the CET scale as follows:

  1. category 1: 178 images and 65 videos;

  2. category 2: 3 images;

  3. category 3: 74 images and three videos;

  4. category 4: 5 images;

  5. category 5 there were no images;

  6. category 6: 9 images;

  7. category 7: 136 images; and

  8. category 9: 420 images and 284 videos which were classified as being ignorable.

  1. In total and excluding those which were ignorable, in respect of the second victim, there were 269 images and 68 videos falling within categories 1, 2, 3, 4, 6 and 7.

  2. Sequence 4 relates to possess child abuse material. Examination of the hard drive revealed that it contained 668,703 files comprised of picture files and video files. There were 659,749 picture files and 8,954 video files.

  3. Analysis of the picture and video files by sampling estimated the following number of files were of interest: in respect of picture files 232,018 to 292,284 and in respect of video files 3,180 to 4,658 video files. The files were examined and rated according to the CET scale with the following results:

  1. category 1: 89%;

  2. category 2: 4%;

  3. category 3: 2%; and

  4. category 4: 5%.

  1. In relation to the video files, adopting the same categories:

  1. category 1: 51%;

  2. category 2: 8%;

  3. category 3: 5%;

  4. category 4: 31%; and

  5. category 5: 5%

  1. The number of video files was roughly between 3,200 and 4,700 files.

  2. On 15 March 2017 the Offender attended Dee Why Police Station by arrangement with his solicitor and was arrested. Those are the agreed facts.

  3. I have also been provided with a copy of the criminal record of the Offender, and apart from a common assault which occurred in November 2000 for which he received a fine, the other matter on his criminal record is the 2009 possess child pornography conviction to which I have already referred.

  4. A considerable amount of material has been provided in support of the Offender's subjective case, however, I note that none of it has been the subject of testing and none of it has been the subject of oral evidence from any of the persons who have provided the material.

  5. The first document is a letter from the Offender dated 4 August 2019. Again, the Offender was invited at least once, if not on more occasions, to give evidence so as to corroborate the expressions contained within this document. However, he declined to do so. Nevertheless, he claimed that he accepted ownership of his criminality "and remorse for those innocent victims whom have been harmed". He then immediately went on to talk about his troubled youth and his quest for life despite constant bullying, trauma and depression. In the letter, which is part of Exhibit 1, he stated, "My problems started at an age well before I was able to make any decisions regarding my future". It was not entirely clear what he had in mind in making that fairly obtuse statement.

  6. His statement continued again by reflecting upon the impact of the offending on himself, referring to the difficulties that he has suffered whilst in custody. He then turned to others and he said the following:

"I am sincerely remorseful for my actions and poor judgment in relation to this matter. I would like to apologise to my family, my wife [REDACTED], my children [REDACTED], my nieces [REDACTED] and their families. I would also like to apologise to the greater community for contributing to a market of pain and despair."

  1. What is intended or meant by that is unclear and the Court has been left in the dark as the Offender has refused to give evidence elucidating what is meant by such matters and expressing remorse under oath. He ended the note by saying, "Again I am sincerely sorry for my careless actions and would like to apologise to all whom have been harmed indirectly or by myself". To describe his actions as "careless" is a gross understatement. His actions were deliberate and directed at self-gratification.

  2. The Offender was assessed by a psychiatrist, Dr Jonathon Adams, who prepared two reports: one dated 2 July 2019 and the second, obtained after the first sentence hearing due to the ambiguity of the first, dated 12 August 2019. In the first report the psychiatrist indicated that he conducted his assessment of the Offender by way of audio visual link, although in paragraph 2 he states it was his view that this process did not impact upon his assessment significantly. The extent to which an audio visual assessment of a person such as the Offender can be performed in that fashion is questionable as psychiatrist's opinion is, to a large extent, based upon impression and observations made by the psychiatrist of the Offender. Nevertheless, I accept the opinion of the psychiatrist that there was no significant impact upon his assessment of the Offender.

  3. The Offender provided background information consistent with matters previously referred to. In terms of psychiatric history, the Offender told Dr Adams that "I've been depressed most of my life. I've just been sad most of my life. I was bullied as a child. I was lonely as a child". He gave an account of experiencing low mood in the context of work stress and relationship difficulties, although somewhat inconsistently he went on to say that work provided a positive impact upon his mental health. The Offender complained to Dr Adams of experiencing intermittent episodes of low mood consistent with depression, interspersed with milder periods of low mood consistent with dysthymia. There was no history provided of any impulsive behaviour or aggression and denied any anxiety or panic attacks.

  4. He informed Dr Adams that he had never been admitted to a psychiatric hospital nor had he ever seen a psychiatrist for treatment. The Offender told Dr Adams that he saw a psychologist at around the time of this first charge in relation to child abuse material and underwent 24 sessions. There was no evidence before the Court as to that counselling. Given the offence occurred in 2009, the charge in November 2011 and the sentence in July 2013 I infer, without knowing, that the counselling commenced at or around the time that he was charged and he underwent 24 sessions of counselling at that time. Whilst I have no information as to the that counselling, nor its outcomes, it can only be observed that it must have been an utter failure given that he went on to continue offending. This raises questions as to the susceptibility of the Offender to positive outcomes in counselling.

  5. In terms of his psychiatric history further, he told the doctor that he was prescribed an antidepressant in earlier adult life but never took it due to the side effects. He said that he had never taken any psychiatric medication regularly until his current period in custody.

  1. Under the heading "Psychosexual history", Dr Adams records matters relevant to the Offender's relationship with his wife and others. When asked about his wife's reaction to his offending behaviour he said, "She sees through them and looks at me as a person". He told the psychiatrist that he began viewing pornographic material that belonged to his father during his childhood. He then began buying pornographic movies when he was old enough to travel to Canberra. He said that he began viewing pornography alone approximately 15 years ago. He stated that he had viewed pornography online and downloaded free material but had never paid for it. He stated, "It was just luck. You don't know what you're going get".

  2. The Offender said that he began experiencing sexual fantasies regarding young girls when he "stumbled across it online". In paragraph 14 of the report he denied experiencing sexual fantasies regarding prepubescent or peri-pubescent children prior to this. When asked what the attraction was he said, "I'm really not sure". The Offender said that he continued to view and masturbate whilst watching adult pornography as well as pornography containing prepubescent and peri-pubescent female children.

  3. He reported his history of splicing a picture of his female nieces aged seven or eight years and 12 or 13 years onto images of naked children. He said he did this because his nieces were pretty and the images he was viewing did not have pretty faces. The doctor asked if he experienced sexual fantasies and urges focusing upon his nieces to which he replied, "No, not really because they are part of the family. I couldn't do it".

  4. At the age of 12 the Offender made what is referred to by the psychiatrist as a sex doll. He said that he had kept it since the age of 12 and noted how it had become "more and more elaborate over the years". He said that it was made out of polyurethane and he made aluminium skeleton and fashioned joints for it. He said the doll had genitalia and he had intercourse with it "every couple of days" during periods of his adult life. He said he dressed the doll up in female clothing and never children's clothing or baby clothing. He said he kept the doll a secret from everyone and never informed anyone close to him about it.

  5. In relation to the abuse of alcohol or drugs, the Offender told Dr Adams that he began smoking cannabis at the age of eight or nine. He further described that he had continued smoking since, and for approximately 40 years has smoked up to 100 cones of cannabis during any day. He described himself as being a functioning addict as he continued to work throughout that period and had always been considered "an amazing carpenter". He also describes experimenting with cocaine, magic mushrooms, amphetamines and the like, however none of that appears to have been ongoing.

  6. There is also reference in his medical history to a number of head injuries, although there is no evidence which would suggest any such injuries would have ongoing effect or be related in any way to the subject offending.

  7. The Offender was born in Mona Vale. His mother's pregnancy and birth were uneventful. There were no early medical issues, although he referred to his father's excessive use of alcohol and said that during his younger years he did not feel loved or nurtured by his father. He has developed, or did develop, a relationship with him during his older years. In relation to schooling, the Offender did not enjoy it, but felt bullied. Upon leaving school after Year 10 he began a course as a motor mechanic and then as a carpenter, which eventually became a career that he pursued.

  8. Commencing at paragraph 32 of the report by Dr Adams, the following appears:

"Mr [CR] said that following his first sex offence in 2009 in relation to possessing child abuse material he kept the material on his hard drive that was not deleted at the time. He said the same hard drive contained various pictures and videos of family significance which he wanted to keep. He said that he was in the process of deleting all the inappropriate child abuse material however some remained. He said that from 2009 onwards he continued to view pornographic material of prepubescent and peri-pubescent females 'plenty of times'. He said he usually masturbated whilst looking at this material 'every couple of weeks'. He described persisting sexual fantasies centring upon prepubescent and peri-pubescent females."

  1. At paragraph 33 it reads, "I asked Mr [CR] whether he made any additional images using pictures of his nieces as he had done historically. His response was, 'I can't remember doing it'".

  2. He also told the psychiatrist that he did not deliberately view child abuse material online or download any new material following the first incident in 2009. This matter was raised directly with counsel for the Offender who was unable to provide any explanation for what was said by his client to the doctor, except that what appears in those paragraphs must be untrue. The date stamps in relation to the images pertaining to the nieces bear the dates of the years 2011 through to 2013, which obviously came into existence after the first offence in 2009 and covered the period during which he was charged and later sentenced for the earlier offending.

  3. He went on to express some regret as to his conduct. He accepted the impact of this type of behaviour on everyone. He said, "In every picture there is a child somewhere getting hurt", and he said that he was "willing to do whatever it takes to get over it", in terms of therapy in addressing his sexual offending. In terms of his time in custody he told Dr Adams that he had been assaulted on two occasions and that he was placed into protective custody. He has also been prescribed medication by the health physicians of Corrective Services. He described his mood as sad throughout his time in custody. He said that he felt particularly sad for his family and went on to refer to a particular difficulty with his daughter.

  4. Nevertheless, the Offender said that his plans for the future were positive. He said that he hopes again to reside with his family on their rural property following his release, and that he was willing to continue with all recommended treatment. When asked how he might avoid re-offending, he replied "avoid the computer".

  5. A mental state examination was performed by the psychiatrist and there was no evidence of psychosis, nor evidence of any cognitive dysfunction on rudimentary testing. He did note a description of low mood provided by the Offender.

  6. There was also reference in the report by Dr Adams to a notation by Justice Health psychiatrist Dr Malik, of 22 October 2018, to whom the Offender provided a history of being "depressed my whole life". He was nevertheless considered to be stable by Dr Malik by 16 November 2018. That appears, according to Dr Adams, to be his last review by a psychiatrist, although there is a note from a mental health nurse of the Offender being upset and tearful following a Court appearance.

  7. Based upon his assessment and the review of the material, which I assume includes the history provided by the Offender himself, Dr Adams diagnosed three conditions, namely major depression, a severe cannabis use disorder and a paedophilic disorder.

  8. In terms of the drug disorder Dr Adams expressed the view that it is reasonable to conclude that his long term use of cannabis compounded his underlying low mood and might well have impaired his judgment and decision making over the years. In relation to his paedophilic disorder the Offender described experiencing sexual fantasies and urges focusing upon prepubescent and peri-pubescent females, commencing when he began viewing pornography material online.

  9. Dr Adams expressed the opinion that, in relation to the offending behaviour, the primary underlying motivation appears to have been the Offender’s paedophilic disorder and expressed the following view:

"In my view this would have been compounded by his low mood and likelihood or major depression, severe cannabis use disorder and his long term inability to discuss and address his underlying emotional state with those close to him".

  1. Dr Adams formulated a treatment program which he recommended and which he thought, if complied with, would mitigate the likelihood of reoffending.

  2. In the further report, dated 12 August 2019, Dr Adams confirmed his opinion by reference to the diagnostic manual for psychiatric disorders DSM 5. It is clear that his opinion was based upon his observations of the Offender, albeit by audio visual link, the account provided to Dr Adams by the Offender and his application of DSM 5.

  3. Also comprising part of Exhibit 1, being the subjective material from the Offender, is a report by Heide McConkey. She is a professional counsellor and sex therapist. In her report she states that she counselled the Offender from 20 June 2016 (that is, a month following his first arrest), through to 8 March 2017 (that is, roughly the week prior to his second arrest). In total there were 17 sessions, each comprising some 60 minutes in duration. According to Ms McConkey, the Offender responded well to therapy. She said that he was motivated and open to treatment and repeatedly said, "He wants to become a better person and understand the reasons for his unusual attraction to minors (his nieces as I understand it)".

  4. Somewhat curiously, the Offender expressed genuine disgust when Ms McConkey asked him if he felt sexual desires for children. That is plainly inconsistent with what he said to Dr Adams and inconsistent with the diagnosis of paedophilic disorder. It can only be assumed, absent evidence to the contrary, that that statement was made by him to Ms McConkey in order to mislead her as to his true condition and any benefit that may have been flowing from the treatment. Apparently he expressed a great level of remorse and expressed sincere hope that the children in question, who loved him and looked up to him, had never noticed his secret filming and sexual behaviour, and he therefore hoped that they would not have been harmed. What is meant by "secret filming" can only be interpreted as being covert filming by the Offender of his nieces for use for sexual gratification on subsequent occasions. As to whether or not they have been harmed by his conduct I will turn shortly.

  5. In terms of rehabilitation, the psychologist Ms McConkey, expressed the opinion, "Based on my experience with [CR] and his response to treatment I would predict a genuine possibility of rehabilitation". In my view that is far from persuasive and I do not accept that opinion. It is clear from the fact that he underwent extensive counselling, following the first offending, commenced in 2009, that he is not a person who responds to counselling and therefore the prospects of any rehabilitation could only be assessed as, at best, guarded.

  6. Also part of Exhibit 1 is an affidavit by Ms Beveridge, affirmed in August 2019. This followed her examination of a number of documents produced on subpoena. The first category of documents relate to programs which the Offender has completed whilst in custody. As he has not given evidence it is impossible for me to determine, apart from the obvious, what the courses related to. It appears they relate to First Aid, Visual Arts, Workplace Hygiene, Food Safety, Health Survival, a course as a barista, other work related courses and in addition are a Narcotics Anonymous course. It is not apparent to me that any of the courses, which the Offender has sought out whilst in custody, are directed towards his offending behaviour.

  7. In paragraph 8 of her affidavit Ms Beveridge then sets out a number of positions of employment which the Offender has held whilst in custody. Commencing in paragraph 9 Ms Beveridge talks about his psychiatric condition. A lot of this echoes what I have already referred to, which I do not intend to further repeat, although I have had regard to it. There is also a paragraph dealing with a number of physical health issues, none of which are particularly significant.

  8. Ms Beveridge confirms that the Offender has, in custody, been placed into a special management area at Parklea and Kariong as he feared for his safety due to the nature of the charges. He was later placed into protection and limited association areas whilst at Kariong at his own request as he feared for his safety due to the nature of his charges. By reference to a case note, Ms Beveridge repeats that on 25 May 2017 the Offender reported that he is "sick of living a lie in custody as he is unable to talk to any other inmates due to the nature of his charges". The relevance of that escapes me. She goes on to refer to an occasion when he was threatened and assaulted by inmates whilst in prison and he was "hit several times".

  9. Under the heading "Other matters" at paragraph 7 of the affidavit the psychologist refers to Corrective Services records relating to recommendations and interventions for the Offender. The following appears:

"There are both community and custody based specialist treatment options offered by CSNSW sex Offender programs. If it is the court's intention that [CR] has the opportunity to access treatment whilst in custody he would need a minimum of two years”

  1. I assume that should be taken to read that he requires at least two years of treatment whilst in custody after sentencing.

  2. I have also had regard to a letter together with annexures thereto from the Offender's wife. Again, she was not called to give evidence in the sentence hearing and what is contained within her letter is very much untested, except to the extent to which it is corroborated by documents attached to it. She has two children with the Offender, a boy aged 15 and a girl aged seven. She works part time as a bookkeeper. She refers to her husband's upbringing and confirms that he told her that he was bullied when he was younger and that whenever he thinks about that he goes into a depression.

  3. There is also reference to domestic violence between his parents which has obviously been told to the author of this letter by the Offender. She confirmed that he has smoked cannabis on a daily basis since she has known him. She refers to his moods as going up and down, alternating between a severe depressed state and a low mood. I do not see how she can in any way be qualified to express an opinion as to any psychiatric condition from which her husband suffered and little or no weight is placed upon those comments.

  4. In order to protect the privacy of their children I do not intend to read onto the record the matters pertaining to the children. It is sufficient to note that the son has suffered difficult times since his father has been placed into custody. He has had difficulties at school and has commenced smoking cannabis. His mother refers to him as being depressed and angry but is unable to arrange counselling due to the cost of it.

  5. On 7 June 2019 the daughter to the marriage was diagnosed with level 2 autism and I have read documents, particularly a report by psychologist Zoe Bruce, relating to that matter. The letter from the Offender’s wife goes on to talk about the financial hardship she has been suffering as a result of her husband's incarceration. In support of her husband she expressed the view that she was confident that he would not commit another offence again. How she can say that is completely unclear as, according to the history elsewhere, she was made aware of the offending in 2009 and, notwithstanding that, he continued to offend either with or without her knowledge since that time.

  6. She went on to make the following points:

"He genuinely realises that what he was doing is wrong. He now acknowledges that his actions have consequences and that they affect everyone around him, not just him. He feels so guilty for the pain that he has caused his family and he would never want to put us through this again. He is adamant that he wants to get counselling as soon as he is released and continue that counselling to actively address his problems".

  1. Whilst rules of evidence do not strictly apply to sentencing proceedings, one cannot help but approach those expressions relayed by the Offender’s wife to the Court with great caution. They are obviously, at best, statements made by her husband to her at a time when he was in custody and have a rather self-serving nature about them. But again, absent her or the Offender giving evidence, the Court is unassisted as to the extent to which those expressions of sympathy and regret are genuine.

  2. As I mentioned previously, I have read the report by psychologist Dr Bruce, relating to the daughter of the marriage. I have also read the GP referral dated 31 May 2019. I have also had regard to what is marked annexure B to the letter from the wife, a confirmation from an energy company that a payment plan has been entered into for the period 23 July 2019 through 17 March 2020. It is said that that demonstrates that the family is suffering financial hardship. I note the total amount to be paid is $1,741.59. It is unclear over what period that has been accrued, but I accept that there is plainly a debt owing albeit relatively small and payments of $100.00 per month have been scheduled for the period of repayment.

  3. I have also read the letter by the Offender's eldest daughter aged 26 years of age, forming part of Exhibit 1. She, at the time of writing this, on 9 August 2019 was eight months' pregnant, and by now has presumably had the child. She refers to the charges for which her father is to be sentenced and goes to describe her father as having integrity and goodwill. It is difficult to see how that statement can be made if she was fully aware of the extent of the offending, in particular the offending against his nieces. She went on to say that her father is a good man and that she has never seen her father touch any woman or child with the intent to harm them, nor would he ever do that. I do not quite see the relevance of that observation. She stated that she has always had a very close relationship with her father and that looked forward to her father returning to the family. She stated that she wants her father to be a part of her child's life.

  4. I have also been given a letter from the partner of the daughter dated 16 June 2019. He is a pharmacy courier, and at 29 years of age, has been part of the family for over four years. He acknowledges the offences for which the Offender is to be sentenced. He referred to the Offender as being "generous and the nicest person I think I'll ever meet". He refers to the offending involving his two nieces as very out of character. Frankly, I find the statement to be without any merit whatsoever. It is plainly directed towards assisting the Offender in ameliorating the sentence to be imposed by this Court. How he can refer to a person who has committed this offending as being "the nicest person you'll ever meet" is beyond me, and how he can identify the offences involving his nieces as being very out of character, having only known the Offender for some four years, also seems to me to be unsupportable.

  5. Detailed written submissions have been provided on behalf of the Offender, which have been of enormous assistance to the Court. It was initially submitted on behalf of the Offender that the non-parole component of his sentence might constitute the time served. I do not accept that submission. It is further submitted that the offending falls well below the mid-range of objective seriousness. I also reject that submission. I find the offending falls at or about the mid-range of offending, given the number of images and videos involved and also having regard to the young age of the victims.

  6. I do note that the age is a relevant factor for the charges being counts 2 and 3, but at the time of the offending the first victim was aged between 10 and 13, while the second victim between the age of 4 and 7. The second victim was certainly well below the threshold for the offence being under the age of 14.

  1. Counsel directed the Court's attention to a decision of R v Hutchinson [2018] NSWCCA 152, where Hulme J set out a number of matters which pertain to objective seriousness in relation to offending of this type. Whilst I accept that the offending could have been far more serious, that is not the relevant question. In considering the factors identified by the Court in [44]-[46] and picking up on those considerations identified by the Court of Criminal Appeal in Minehan v R [2010] NSWCCA 140, I observe that actual children were used in the creation of most of the material and that the nature and content of the material was found is within the categories identified previously. There was no apparent cruelty or physical harm occasioned to any of the children, there was a large number of images (both in terms of images and videos) on the devices seized from the Offender, there was no suggestion of any dissemination of the material (which does not mitigate against the seriousness of the offending), there was no suggestion of any payment or material benefit to the Offender, and many of the factors identified by the Court in both Minehan and Hutchinson do not exist in this case. Nevertheless, for the reasons which I have referred to, I consider the offending to fall at the mid-range of objective seriousness.

  2. Detailed submissions were made about the Offender's mental health, with the implication being that I ought to accept the opinion of Dr Adams, and find that the Offender suffered a number of psychiatric conditions which may have contributed to his offending. It was submitted that, "Although the causative to the offending is present it is not necessary to find the mental condition was the cause of the commission of the offence".

  3. Reference was made to a decision of Benitez v R [2006] NSWCCA 21 at [36] where it is stated:

For mental illness or a psychiatric condition to be relevant to sentencing it is not necessary that it be the cause of the commission of the crime. Indeed, authority suggests that it is not necessary that it be a cause of the crime.

  1. The Court further held at [39]:

In my opinion it was an error for his Honour to direct himself in terms that suggested that the applicant's depression, if not causative of his offences, was irrelevant to the sentencing process. The result was unduly to confine the sentencing discretion.

  1. I have given careful consideration to the opinion of Dr Adams, particularly in view of the further elucidation provided by his supplementary report. I accept the opinion of Dr Adams, that is, that the Offender suffers from a number of psychiatric disorders including major depression, severe cannabis use disorder and paedophilic disorder. It is no doubt by reason of the third diagnosis that the offending occurred.

  2. In terms of the interaction between these diagnoses, I accept the opinion of Dr Adams that the depression and cannabis use were important risk factors to consider, alongside the main driving factor of his paedophilic fantasies, and will also need to be the target of risk management for ongoing treatment. In terms of any psychiatric condition, I place no reliance at all upon the opinion of the psychologist who, for the reasons I have previously given, I find unpersuasive.

  3. Regarding the submissions of counsel for the Offender, having found psychiatric illness and having found that the paedophilic disorder, in combination with other conditions, contributed to his offending, I accept that his psychiatric condition does reduce his moral culpability, albeit to a limited extent.

  4. In relation to the early guilty plea a discount of 25% was asked for by the Offender and not opposed by the Crown. I will accede to that request.

  5. There was also a submission made by the Offender as to early drug addiction. He commenced cannabis use at the age of eight or nine and had been using cannabis for about 40 years, smoking up to 100 cones during the day. I am mindful of the comments made by the Court of Criminal Appeal in the matter of R v Henry (1999) 46 NSWLR 346 and the general principle as to a person not being of a sufficiently mature age to make informed choices. It was submitted on behalf of the Offender that, "[CR]’s entrenched drug addiction mitigates his sentence as it developed at an age where its use could not be classed as a personal choice". I accept that opinion.

  6. There were also submissions advanced in terms of his deprived upbringing, with particular reference to his father's alcoholism and the failure of his father to show affection for him. Whilst plainly those matters are regrettable I do not consider they rise to the level required to be given additional weight by reason of the principles enunciated in Bugmy v The Queen (2013) 249 CLR 571. The submission was advanced that the Offender will experience greater hardship in custody by reason of the nature of his offending. Whilst that may be the case I decline to find special circumstances on that basis such as to mitigate against his sentence.

  7. It was further submitted that extra-curial punishment would be incurred, noting that the Offender has already been assaulted and threatened whilst in custody due to his charges. Unfortunately that is the consequence of this type of offending, and I do not believe that it gives rise to special circumstances and I would urge Corrective Services to do whatever is possible to guard against any risk of that type to ensure the safety of the Offender whilst in custody, even if that requires isolation.

  8. A lengthy submission was advanced in relation to hardship to family and dependents. Reference was made to a decision of Price J, with whom Hoeben CJ at CL and Rothman J agreed in the matter of Lee v R [2019] NSWCCA 15 at [74] where his Honour stated:

"The extent to which 'highly exceptional' hardship to a family member may be taken into account on sentence is a discretionary decision to be made by a sentencing judge in the light of the particular facts and circumstances of the case".

  1. His Honour then referred to the decision of Whealy J in Dipangkear v R [2010] NSWCCA 156 where, amongst other things, Whealy J said that having regard to those matters may result in an adjustment to the sentence in one of three ways. It may suspend the sentence of imprisonment; that is not appropriate here. Alternatively, it may shorten the sentence of imprisonment; again I do not consider that to be appropriate here. Or, it may affect the non-parole period, resulting in a finding of special circumstances which I intend to make.

  2. On behalf of the Offender the s5 threshold was conceded. I find that after having considered all possible other sentencing options there is no other sentence other than imprisonment which is appropriate in the circumstances.

  3. I have had regard to the matters of aggravation and mitigation provided under s21A of the Crimes (Sentencing Procedure) Act. Whilst the Offender does have a record of previous convictions in relation to child pornography, that is a matter for which he is to be resentenced today upon revocation of the bond and therefore it is not a matter which I will separately take into account as an aggravating factor. However, I do take into account the fact that the Offender was on conditional liberty in relation to that earlier offence when this offending occurred.

  4. To the extent that age is not an element of the offences, that is in relation to counts 1 and 4, that is possess child abuse material, plainly the victims were vulnerable as they were very young. The reference to child abuse material naturally suggests that they were very young, and to find that as an aggravating factor risks double counting, which I will not do. There was some degree of planning involved. The creation of the doll with mechanical parts, and the splicing of his nieces' photographs onto the mannequin or the doll, obviously took some preparation and planning. In the circumstances, however, I do not consider that to be an aggravating factor or an increase in the sentence.

  5. In terms of any mitigating factors, I consider that I am unable to make any finding as to the likelihood of re-offending and my opinion as to prospects of rehabilitation and therefore re-offending are guarded.

  6. It was submitted on behalf of the Offender that he has shown remorse in a statutory sense. That is, he has provided evidence that he has accepted responsibility for his actions, and he has acknowledged the harm done to others. The Crown submitted that his expressions of remorse were more directed towards the effect that the offending has had upon himself and his own family rather than those directly impacted by his offending. Whilst that may be the case that is also apparent from the material previously referred to that the Offender has, albeit in an untested fashion, accepted responsibility for his actions and has acknowledged the harm done to other. He is also entitled to mitigation by reason of the guilty plea.

  7. Before moving to sentence I should just observe that statements by the first victim (Exhibit C) and the second victim (Exhibit D) were read out in Court today. I note that the second victim was born in 2006 and will soon be 13 years of age. Her sister (the first victim) was born in 2000 and is now 19 years of age. The victim impact statements indicate that the effect that this Offender's conduct has had upon them is far reaching and will be long lasting. I note that particularly the first victim has been the subject of mental health treatment following a number of self-harming incidents including an attempt as suicide on multiple occasions. One of the purposes for sentencing is to reflect, by the sentence to be imposed, the harm which has been done to the victim of the crime and to the community. In considering that purpose for sentence in s3A of the Act, I have taken into account very carefully the statements by the victims which were read out in Court today.

  8. The other purposes for sentencing which arise in this case are that the sentence must be adequate for the offending. In my opinion the sentence to be imposed will adequately punish the Offender for that. Next is deterrence, which in cases such as this looms large. Leaving aside for the moment specific deterrence, the sentence to be imposed upon the Offender must be one which achieves the outcome of general deterrence. Offending of this type is prevalent within the community and must be guarded against. In doing that the Courts must adopt a strict approach to sentences, and impose sentences which reflect the severity of the offending. As was admitted by the Offender in his letter to the Court, every time the image of any one victim is viewed by another it would cause further harm and hardship to the victim. In fact, the Offender in his letter referred to contributing to a market of pain and despair and said that his heart goes out to all those have endured such acts in their early years. General deterrence is absolutely necessary in a sentence of this type.

  9. In terms of specific deterrence, in my opinion there is a real need in these circumstances. This is in light of the fact that the Offender failed to learn his lesson from the 2009 offending and continued offending, but perhaps more dramatically and more severely post-2009, leading to the present charges before the Court. He apparently gained no benefit in the sense of counselling which he had following the 2009 offending.

  10. Next, the Court is to adopt a sentence which promotes the rehabilitation of the Offender. I note the comments made in the affidavit by Ms Beveridge as to the availability of courses to the Offender in custody, and that he would need a minimum of two years imprisonment post-sentencing to achieve any satisfaction from those courses.

  11. The next purpose is to make the Offender accountable, and I intend to do that. The final purpose of sentencing is to denounce the conduct of the Offender and others who engage in this type of behaviour.

  12. I intend to impose an aggregate sentence upon the Offender. Before doing so I am required to first provide the indicative sentences in relation to the matters for sentence. All of these indicative sentences are given after a discount of 25% on account of the guilty plea.

  13. In relation to the s12 bond, the bond is revoked and in respect of that matter I provide an indicative sentence of six months imprisonment.

  14. The second matter for indicative sentence is the charge ending 717, sequence 4, being the other 2016 offence together with a Form 1 matter attaching. For that I provide an indicative sentence of two years.

  15. In relation to the 2017 offending, that is sequence 2 of charge number ending 274, and in relation to the first victim, I provide an indicative sentence of three years together with an indicative non-parole period of two years.

  16. In relation to sequence 3 of charge number ending in 274, in relation to the second victim, I provide an indicative sentence of four years and an indicative non-parole period of two years eight months.

  17. In relation to sequence 4 of charge number ending in 274, I provide an indicative sentence of three years.

  18. CR, you are convicted of the following offences:

  1. produce child abuse material in contravention of s91H(2) of the Crimes Act;

  2. use a child under the age of 14 to produce child abuse material in breach of s91G(1)(a) of the Crimes Act;

  3. use a child under the age of 14 to produce child abuse material in breach of s 91G(1)(a) of the Crimes Act; and

  4. possess child abuse material in breach of s91H(2) of the Crimes Act.

  1. I have also found that you are in breach of the s 12 bond which has been revoked.

  2. In relation to all of those matters I sentence you to an aggregate term of imprisonment of eight years to date from 9 March 2017 and to expire on 8 March 2025. You are sentenced to an aggregate non parole period of five years to date from 9 March 2017 and to expire on 8 March 2022, at which time, subject to the Parole Authority, you may be eligible for release on parole.

**********

NOTE:

A. These remarks on sentence were revised without access to the Court File;

B. A certified copy of these remarks are available upon request.

Amendments

05 May 2020 - Amendment to [31]

Decision last updated: 05 May 2020

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Most Recent Citation
CR v The Queen [2020] NSWCCA 289
Cases Citing This Decision

1

CR v R [2020] NSWCCA 289
Cases Cited

12

Statutory Material Cited

3

Tepania v The Queen [2018] NSWCCA 247
Du Randt v R [2008] NSWCCA 121
Du Randt v R [2008] NSWCCA 121