R v Hitchen

[2009] NSWDC 431

Set aside by Appeal:

District Court

CITATION:	R v Hitchen [2009] NSWDC 431
HEARING DATE(S):	2 and 17 February, 2009
JUDGMENT DATE:	8 April 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Garling DCJ
DECISION:	A total term of imprisonment of 24 years with a non-parole period of 18 years.
CATCHWORDS:	CRIMINAL - sentence - plea - use carriage service to transmit child pornography - mid-range category of offence - possess child pornography - persistent sexual abuse of child - use child under 14 years for pornographic purposes - use carriage service to access child pornography - worst category of offences - s.474.19(1)(a)(iii) Criminal Code Act 1995, ss 91H(3), 66EA, 91G(1)(a) Crimes Act 1900, s.474.19(1)(a)(i) Criminal Code Act 1995 - accumulation of sentences
LEGISLATION CITED:	Crimes Act 1900 Criminal Code Act 1995 (Commonwealth) Crimes Act 1914 (Cth)
CASES CITED:	R v Fitzgerald (2004) NSWCCA 5 RJA [2008] NSWCCA 137 MLP [2006] NSWCCA 271 Cahyadi [2007] NSWCCA 1
PARTIES:	Regina Glenn Hitchen
FILE NUMBER(S):	08/18854; 08/18509; 08/18510
COUNSEL:	Mr. J. Barnett (Offender)
SOLICITORS:	Mr. G. Coles (ODPP) Mr. A. McMaster (ODPP) Mr. M. Giles (Offender)

HIS HONOUR: The prisoner has pleaded guilty to the following charges:-

1. Charge 1 – On 25 November, 2006 at Port Macquarie in the State of New South Wales, used a carriage service to transmit child pornography material. That carries a maximum sentence of 10 years’ imprisonment.

2. Charge 2 – On 25 November, 2006 at Port Macquarie in the State of New South Wales, used a carriage service to access child pornography material. That carries a maximum sentence of 10 years’ imprisonment.

3. Charge 3 – On 5 December, 2007 at Port Macquarie in the State of New South Wales, had child pornography in his possession. That carries a maximum sentence of 5 years’ imprisonment.

4. Charge 4 – Between 18 November, 2004 and 20 October, 2007 at Port Macquarie in the State of New South Wales and at Hervey Bay in Queensland, on twelve separate occasions occurring on separate days, did have sexual intercourse with K, a child then under the age of 10 years, and on a further thirty six separate occasions occurring on separate days did commit an act of indecency with K, a child then under the age of 16 years. That carries a maximum sentence of 25 years’ imprisonment.

5. Charge 5 – Between 25 February, 2005 and 15 May, 2005 at Port Macquarie in the State of New South Wales, used K, a child under 14 years, namely 7 years, for pornographic purposes. That carries a maximum sentence of 14 years’ imprisonment. I also take into account on this charge four other charges on a Form 1. They are four charges of using a child under 14 years for pornographic purposes.

6. Charge 6 – Between 26 March, 2005 and 26 April, 2005 at Port Macquarie in the State of New South Wales, used a carriage service to transmit child pornography material. That carries a maximum sentence of 10 years’ imprisonment. I also take into account on this charge two charges on a Form 1. They are charges of use carriage service to transmit child pornography.

7. None of the charges have a standard non-parole period.

8. The facts upon which I sentence the prisoner are those set out in exhibit A in considerable detail. For convenience I summarise them below and I refer to them in greater detail when I am dealing with the seriousness of each charge:

9. Investigations by the Australian Federal Police of the prisoner commenced in November, 2007 as a result of information received from the FBI. On 5 December, 2007 a search warrant was executed upon the prisoner’s premises. A number of items were seized. After investigations the police interviewed the child who told them that the prisoner had indulged in behaviour which included viewing pornographic material, sleeping in the nude with her, taking photographs of her, playing and rubbing his private parts.

10. The child was again interviewed after a number of other matters had been investigated and she spoke of hundreds of “model photos” of her naked being taken, that she was told not to tell anyone about the photography. When she stayed with him she slept in the same bed. He had put his penis in her mouth and ejaculated, he had performed cunnilingus on her and digitally penetrated her anus and he would have her drink beer.

11. The investigators found 2,170 images relating to K, the child the subject of these offences. Those images depicted the child from the age of 7 to 9 years being subjected to acts of intercourse, orally, vaginally and anally. There was also a video depicting the child being subjected to fellatio over a period of time and a number of photos depicting the child in various stages of undress, being dressed in g-strings, high-heeled shoes, fishnet stockings, urinating, using a vibrator and exposing her genitals and anus. The prisoner transmitted some of these images to other paedophiles overseas and also took part in “chat rooms” discussing child pornography and exchanging images. In addition, the prisoner had in excess of 729,000 child pornographic images involving children of a very young age involved in various stages of intercourse with males and various forms of abuse including a video depicting sexual acts with a dog. He also had 2,700 video files depicting child pornography.

12. The last of these offences occurred on 19 October, 2007 and he has been in custody since December, 2007.

13. The prisoner is 44 years of age. He has no prior criminal convictions. He has pleaded guilty at an early time. The utilitarian value of his plea is high. He is entitled to a discount of 25% on sentence.

14. The prisoner has been in custody since 5 December, 2007 on these charges alone and his sentences will be backdated to commence on that date.

15. The prisoner gave evidence and a proof of his evidence, exhibit 3, was tendered on his behalf. The prisoner attended school up to Year 10. He obtained his school certificate and completed a motor engineering certificate and apprenticeship. Over the years he has had a number of different jobs and appears to have been in full-time employment. He has a diving instructor’s certificate, St. John’s senior first aid certificate, Royal Life Saving Society instructor’s certificate, a coxswain’s certificate and a radiotelephony certificate. He said he had numerous relationships which failed. His early years up to 1998 were unremarkable. He has strong family ties. Exhibit 1 is a letter from his mother and sister. They say he has always been a person of extreme kindness and generosity, he is naïve, gullible, trusting and they believe that these personality traits contributed to his actions and they also believe he is extremely remorseful and will not re-offend.

16. In 1998 he met the victim’s mother, he commenced a relationship. They lived together for a short time during the relationship whilst at Port Macquarie and they lived together in Queensland for six or seven months. They returned to Port Macquarie and lived separately but continued their relationship. The prisoner says that K, the victim, became his best friend and, at that time, he felt unwanted by her mother. He said he had difficulty in keeping and maintaining friends.

17. In 2000 he commenced using a computer and then started to use chat rooms to meet people. He then obtained access to pornographic material, he developed his computer skills and exchanged files which contained pornographic material. Some of those files included child material. He went further into child pornography and had assistance regarding the technical aspects from those in the groups with whom he had contact. He said:

“The obsession then progressed to taking active steps to involve myself in the fantasy by using the victim in my own photography. This gave me some credibility with other parties and the level of communication escalated.”

18. The prisoner has said that he is sorry for his behaviour. He recognises the devastation the victim and her family will suffer and the hurt his own family will suffer. He says he is guilty and has no excuse.

19. I note in the report of the psychologists, Melissa Murray and Lyndon Newell, it is said that the prisoner demonstrated poor awareness regarding the issue of consent, that he denied planning and that he minimised the impact of his offending on the victim stating that, if not arrested, he would have had a father/daughter relationship and that he minimised his role in the offence. The report concludes that there was no indication of mental illness and there is no problem with alcohol or illegal drugs. He reports low self-esteem, resentment and betrayal. He is considered to have a low risk of re-offending.

20. A pre-sentence report concludes that he is suitable for a medium level of intervention commensurate with the assessed risk. They say that there is a program available in the correctional system.

21. I have seen a document, exhibit 2, and the summary which indicates he has been willing to cooperate to assist with investigations. The value of his assistance, in my view, would not entitle him to any substantial discount on sentence. However, I have taken it into account.

22. The prisoner had no criminal record and there is some evidence which would suggest he was a person of good character. Whilst I take this into account, it has little weight in this sentence. Unfortunately, people of otherwise good character commit crimes against children. I also take into account that he has expressed remorse.

23. I take all these matters into account when sentencing the prisoner. I also take into account that the prisoner will most likely serve his sentence in some form of protection.

24. It is submitted on the prisoner’s behalf that I should find special circumstances. The special circumstances being the need for rehabilitation. Whilst he is in custody, as I understand it, he will be able to undertake various programs and courses. It is argued that the psychologists administered various tests and found that the prisoner was in the low risk category for re-offending but that there were still concerns and that Probation and Parole had assessed him as a medium risk. Probation and Parole have also said that there is a program available in custody, the CUBIT Program, which he can undertake. The prisoner will be serving a lengthy period in custody and, in my view, will get all the assistance he needs to rehabilitate himself. He will also have a lengthy period on parole. I am unable to find special circumstances. I have to also record that, from everything I have seen in this case, despite the tests which have been carried out, I have serious reservations that he will not offend in this way again.

25. I have also had tendered a victim impact statement prepared by the victim’s mother. She says that the abuse suffered by her daughter had affected her daughter’s behaviour, trust, emotional well-being and her relationships with her family and friends. It discloses that K has been significantly affected as a result of the abuse she suffered.

26. In my opinion charges 3, 4, 5 and 6 fall into the worst category of each of those charges. Charge 3 involves 729,000 photographic files and 2,700 video files. The material contains still images of children depicting oral, anal and vaginal penetration, use of sex toys and children performing sexual acts on each other and the video material depicts oral, anal and vaginal penetration of children and a child performing oral sex upon a canine. I have seen a selection of these photographs and a video. Their contents are revolting. For each photo and each video a child has been abused. Taking into account the nature of the photographs and videos and their very large number, I am satisfied this falls into the top of the range. I believe that the maximum sentence of 5 years’ imprisonment for this offence is totally inadequate when you have a case of this nature. However, my sentence is limited by the maximum sentence available.

27. Charge 4 – The victim was 7 years of age when these offences commenced and they continued over a period of nearly 3 years. They involved sexual intercourse with a child under 10 years on 12 separate occasions and an act of indecency on 36 other occasions. Whilst the child was sleeping the prisoner placed his penis in her mouth and in her vagina, he also placed his penis in her mouth and vagina when she was awake and, on another occasion, placed his penis in her anus. On each occasion he took photographs of what he was doing.

28. On 26 February, 2005 he took a video which showed him with his penis in the child’s mouth. She was 8 years of age. It shows him performing fellatio for some time. She appears to be gagging and he is instructing her what to do. What is depicted on the video is abhorrent but an important part of the evidence. It is one thing to look at a still photograph but watching what he was doing to this child on video brings home the horror of what was happening to her.

29. Other incidents include placing his erect penis between the cheeks of the child’s bottom and holding his erect penis in her hands. On 24 March, 2005 the child has placed her hand around his erect penis, she then kneels between his legs with her hand around his penis with the end of the penis touching her lips and then his penis is placed inside her mouth. On another occasion the child is shown wearing black fishnet stockings holding a dildo and reclining on a motor vehicle exposing her vagina which is one of the many acts of indecency. She is shown holding a vibrator against her vagina, another act of indecency. There are numerous acts of abuse. They are of a serious nature. The victim is between 7 and 9 years of age. The prisoner was in his late thirties. He took photographs and videos of the child while he was abusing her, he dressed her in clothes for pornographic purposes. There was absolutely no reason other than for his sexual gratification. He took away this child’s right to enjoy the life of a child, free from harm and abuse. He was in a relationship with her mother and there was no doubt that the child totally trusted him. The number of incidents of sexual abuse, the fact that they occurred over about 3 years and the very nature of the sexual abuse place this in the most serious category.

30. The Court of Criminal Appeal in Regina v. Fitzgerald (2004) NSWCCA 5 set out propositions for dealing with persons charged with this offence (s 66EA). At paragraph 13 Justice Sully said:

“The ultimate question for the sentencing Judge is where a sentence that is just, according to proper sentencing principles, should stand on a statutory scale, the highest point of which is a sentence of imprisonment for 25 years.”

31. His Honour said at the end of that paragraph, after reviewing the authorities:

“The Court will still have regard to the duration of the offending, the seriousness of the offences involved and the frequency of the offending but the Court will not be accumulating a series of maxima produced by multiplying the number of individual offences that can be identified by the applicable statutory maxima. There is nothing to suggest that Parliament intended that the sentencing for a course of conduct which has crystallised into a s 66EA conviction should be more harsh an outcome than sentencing for the same course of conduct had it crystallised into convictions for a number of representative offences.”

32. I am also satisfied that there was significant planning which included the buying of clothing, setting up the poses, obtaining of sex toys and the taking of the photographs. This comment applies to Charges 4 to 6 inclusive.

33. Charge 5 refers to a period between 25 February, 2005 and 15 May, 2005 when he used her for pornographic purposes. The prisoner took photographs and videos of the child on 9 separate occasions in that period. On 25 February there were 31 photographs showing the child wearing a dress, a g-string and exposing her vagina and anus. Later on that day 8 similar photographs were taken. On 26 February there were 29 photographs of a similar nature but included her sucking a lollypop and putting it close to her exposed vagina and it showed photographs of her urinating. On 24 March there were 63 photographs. They involved, among other things, red high-heeled shoes, black fishnet stockings, red lace g-string, the child exposing her vagina and anus, the child holding his erect penis, her urinating in a bathtub, the use of shaving cream around her vagina and the shaving of that general area with a razor. On 27 March there were 83 photographs which included shaving her legs, thighs, genital area and posing wearing the red high-heeled shoes. On 8 April there were 32 similar photographs and, again, on two occasions in April and May. This charge also involves four charges in the same terms on a Form 1 for offences occurring between 18 November, 2004 and 21 October, 2007.

34. The offences in Charge 5 involve the child when she was 7 years of age. There are 2,170 images altogether and about 300 involved in the actual charge itself. The photographs are disgusting and degrading. A 7 year old is coerced into posing in all different types of inappropriate clothing obviously for pornographic reasons, exposing her vagina, anus and urinating.

35. I take into account, when assessing the seriousness of this charge her age, the vulnerable position she was in, the subject of the photographs, the fact that she was required to wear inappropriate clothing, the fact that she was required to pose to allow these images to be taken for pornographic purposes and I take into account those other matters I have expressed earlier about the effects on a 7 year old child and the fact that it was done purely for sexual gratification. This, in my opinion, places it in the worst category for this type of offence.

36. Charge 6 – This offence occurred between 26 March, 2005 and 26 April, 2005. The child was 7 years of age. The prisoner took a series of photographs depicting her pulling on her vagina with her left hand to expose the labia majora, with her right hand holding a piece of paper with the words “Dave – 4 U” written on it and lying with her legs raised and spread with her hands pulling back on her vagina to expose her labia majora whilst positioned under her anus is a piece of paper with the words “Dave – 4 U” written on it. There are also photographs of the prisoner who is naked, sitting on a chair with an erect penis and against his inner thigh is the piece of paper with the words “Dave – 4 U” written on it. These photos were electronically sent to the person known as Dave. This charge also is subject to two matters on a Form 1 which occurred in April, 2005 and March, 2007 and include photographs depicting the child in pornographic poses with a piece of paper with the words “Spank my noodle” written on it. In one photograph the child is wearing a tartan skirt, pink singlet and red g-string with her anus exposed and those words written on a piece of paper and that photograph had been electronically sent to a person known to the prisoner. In another photograph the child is photographed with a naked upper torso holding a piece of paper with the word “Tony” written on it. The prisoner admitted he had electronically sent those photographs to another man. He sent the pornographic images of K to five different men including men living in Japan, Kentucky in the United States, Virginia in the United States and Ireland.

37. The photographs are disgusting. The effect of this offence is that these pornographic photographs of this young girl have now been transmitted overseas. We do not know what will happen to them. They may very well be included in those sites which depict child pornography. This child will always have to face up to the probability that these photographs of her will be available to persons who wish to satisfy their sexual urges by viewing pornographic photos of young girls. The prisoner had no regard for this young girl, he had no regard for the fact that these photos may now be accessed by many people. This was a child who trusted him and it seems that he transmitted these images to ingratiate himself with other paedophiles. This charge is not just simply transmitting child pornography, it is transmitting child pornography of a 7 year old girl known to the prisoner and whose mother he is in a relationship with. This is not an anonymous photograph which would be bad enough, this is exposing this young girl to the child pornography industry. For these reasons, which include the age of the child, the relationship and those other matters I have set out, in my opinion, rank it in the worst category of this type of offence.

38. Charges 1 and 2 occur on 25 November, 2006. They involve what is known as a “chat room”. The conversation is recorded. It is obscene and, at the same time, various child pornographic images are transmitted and others are accessed by the prisoner. There are sent or received 250 images classified as child pornography. These fall into the mid-range of these types of offences.

39. Charges 1, 2 and 6 are charges brought pursuant to the Criminal Code Act of the Commonwealth. I have taken into account those matters required pursuant to ss 16A and 17A and B of the Crimes Act 1914 (Cth). There is no other sentence which I could pass, due to the severity of these offences, other than a sentence of full-time imprisonment.

40. There is little sentencing statistical information to which I have been referred or which I can find. I note, however, that in two sentences pursuant to s 66A which have some similarity to the facts in Charge 4 in the sentence of RJA [2008] NSWCCA 137 a father, who was convicted of two counts of penile penetration similar to the extent of the penile penetration in this charge, and also digital penetration over a much shorter period with a child aged 8 to 9 years, received a sentence of 17 years’ imprisonment with a 13 year non-parole period and in MLP [2006] NSWCCA 271 a prisoner was sentenced, for penile intercourse with his 9 year old daughter, to 16 years’ imprisonment with a non-parole period of 11 years. Each of those sentences was after conviction at trial and each offence carried a similar maximum penalty to this. In my opinion, the facts set out in charge 4 are far more serious than either of those two sentences. However, the prisoner in these sentences has pleaded guilty and is entitled to a discount.

41. I intend to accumulate charges 4, 5 and 6 and to make charges 1, 2 and 3 concurrent, not because they do not also deserve individual punishment, but because I need, in the end, to impose a sentence which is appropriate to all charges. Each of charges 4, 5 and 6 are different. The first charge involves sexual intercourse and indecent assault. The next involves the taking of a large number of pornographic photographs of the child and charge 6 involves the transmission to other persons of those photographs. The Crown submits that each of those should be accumulated and I agree with that submission. I do not understand that there is any submission to the contrary other than that the accumulation should be partial. I do not agree with that submission.

42. The prisoner must be sentenced in such a way that he realises he cannot offend in this manner and that others in the community realise that, should they commit offences of this nature, they will be sentenced to lengthy terms of imprisonment.

43. I have been a Judge of this Court for many years. I have not seen or heard of offences of this type which are as serious as these offences. They are committed on a young, innocent child between the ages of 7 and 9 who obviously trusted the prisoner. In her innocence she posed for him in all forms of dress and all different sexually explicit ways. He sexually abused her over a period of about three years for his sexual pleasure and gratification. Surely, with a child of this age, what you would expect to be seeing is photographs in the family album of happy family occasions, of birthdays, of holidays, of family outings, of girlfriends, of fun times. What we have here are revolting sexually explicit photographs of his abuse of this young girl. Why? Because he wants to ingratiate himself with other paedophiles. I do not believe that he has accepted the seriousness of what he has done or the effect it will have on this young girl.

44. I have taken into account all that has been said on his behalf, particularly his plea of guilty and the fact that he had no previous criminal record, he has shown limited contrition and those matters set out in his background.

45. In passing sentence, I have imposed individual sentences which I believe are appropriate for each charge. I have taken into account what Justice Howie said in Cahyadi [2007] NSWCCA 1:

“There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively, the issue is determined by the application of the principle of totality of criminality.”

46. His Honour said the sentences, where appropriate, should be accumulated to reflect the total criminality. It is on that basis that I have approached these sentences. The non-parole period on charge 6 is 67% of the head sentence which I believe to be fair. The sentence on charge 5 has a significant reduction of the non-parole period to reflect totality principles and to ensure a proper overall ratio between the head sentences when accumulated and the appropriate non-parole period.

47. On Charge 1: I convict you and sentence you to a term of imprisonment which consists of a non-parole period of 3 years and a total term of 4 years both to date from 5 December, 2007.

48. On Charge 2: I convict you and sentence you to a term of imprisonment which consists of a non-parole period of 3 years and a total term of 4 years both to date from 5 December, 2007.

49. On Charge 3: I convict you and sentence you to a term of imprisonment which consists of a non-parole period of 2 years and a total term of 3 years both to date from 5 December, 2007.

50. On Charge 4: I convict you and sentence you to a term of imprisonment which consists of a non-parole period of 12 years and a total term of 16 years both to date from 5 December, 2007.

51. On Charge 6: I convict you and sentence you to a term of imprisonment which consists of a non-parole period of 4 years and a total term of 6 years both to date from 5 December, 2019. I take the matters on the Form 1 into account, that is, two charges of use carriage service to transmit child pornography.

52. On Charge 5: I convict you and sentence you to a term of imprisonment which consists of a non-parole period of 2 years and a total term of 8 years both to date from 5 December, 2023. I take the matters on the Form 1 into account, that is, four charges of using a child under 14 years for pornographic purposes.

53. You will be eligible to be considered for release to parole on 4 December, 2025.

54. That is, a total term of imprisonment of 24 years with a non-parole period of 18 years.

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