R v HL

[2019] NSWDC 41

District Court

New South Wales

Medium Neutral Citation:	R v HL [2019] NSWDC 41
Hearing dates:	14 February 2019
Decision date:	22 February 2019
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Offender sentenced to an aggregate sentence of 8 years and non-parole period of 6 years
Catchwords:	CRIMINAL LAW – sexual assault of a child under 10 years; producing child abuse material.
Legislation Cited:	Crimes Act (NSW) 1900: s66A (1) and s91H(2)
Category:	Sentence
Parties:	Crown HL (Offender)
Representation:	Crown: Ms Sloane (Crown Prosecutor) Offender: Ms Haywood (Solicitor)
File Number(s):	2018/11316
Publication restriction:	Non publication order made of the names of the offender, family of the offender, and the victims and any information which might directly or indirectly identify them

Judgment

1. To the extent necessary, I confirm the non publication order made 13 February 2019 of the names of the offender, family of the offender, and the victims and any information which might directly or indirectly identify them.

2. H.L., you appear for sentence today in relation to six principal offences.

3. The first of those principal offences is the sexual assault of a child under 10 years, specifically 3 years of age.

4. This involves a contravention of s 66A (1) of the Crimes Act. The maximum penalty for that offence is imprisonment for life. There is a standard non-parole period of 15 years imprisonment.

5. Two of the other principal offences are of producing child abuse material.

6. These involve contraventions of s 91H (2) of the Crimes Act. The maximum penalty for that offence is 10 years imprisonment. There is no standard non-parole period.

7. The remaining three principal offences are offences of possessing child abuse material.

8. These offences also involve contraventions of s 91H (2) of the Crimes Act.

9. In addition to the principal offences, you have asked me to take into account three matters on one Form 1 and one matter on another Form 1 – each of which I have certified.

10. The first Form 1 is to be taken into account with one of the principal offences of producing child abuse material (sequence 4). The three matters on that Form 1 are each matters of producing child abuse material.

11. The second Form 1 is to be taken into account with one of the principal offences of possessing child abuse material (sequence 8). The matter on that Form 1 is also possess child abuse material.

12. The circumstances of the principal offences and the matters on the two Form 1s are contained in an agreed statement of facts.

13. Slightly recast by me as to style but not substance those facts are as follows.

14. As at January 2018 you were 41 years old.

15. Up until 2009, you had been involved in a de facto relationship with a lady for about 11 years. Three children were born to that relationship and, as at 2017, one of those children, S, was 14 years old (the other children were 16 and 18 years old).

16. Following your separation from that lady, you lived on your own in a rural city in NSW.

17. In late December 2017, you and S were on holidays in northern Queensland.

18. Whilst on that holiday, S had access to your mobile phone and, on it, she found videos of her and one of her friends undressing at your house in that rural city, together with photos of you assaulting a young child known to S. That child was A.

19. S immediately contacted her mother and arrangements were made for her to return home and the matter was reported to police immediately S returned to the rural city I have been referring to.

20. In the afternoon of 11 January 2018, police, who were in possession of a search warrant, searched your motor vehicle and found your mobile phone.

21. When the police examined that phone they found, amongst other things, a photograph of you penetrating the anus of the 3 year old child, A, with a finger of your left hand. This photograph was date stamped 1 July 2017.

22. A and her mother lived near your house and you, from time to time, babysat A for her mother.

23. It is the act of digitally penetrating the anus of that child which constitutes the principal offence of sexual assaulting a child under 10 years of age.

24. There is no material before the Court as to the extent of the digital penetration; nor the duration of it.

25. In addition to that photograph, there were 11 other photographs also date stamped 1 July 2017 on your phone. These images were of the vagina and anus area of A.

26. It is the possession of these 12 images that constitutes one of the principal offences of produce child abuse material (sequence 2).

27. Following the discovery of that material you were arrested.

28. The execution of the search warrant was continued, but this time at your home, during which a number of electronic recording and storage devices were found including a small spy camera, four laptop computers, 18 external and internal hard drives and USBs, three GoPro cameras, further mobile phones and iPads – all of which belonged to you.

29. Further examination of your mobile phone showed a video dated 22 October 2016. The video showed you secreting a camera within the bedroom of your 14 year old daughter, S, and, with that hidden camera, you filmed one of S’s friends, K, who was 13 years old, as she undressed and changed into her swimmers in that bedroom. The vagina and breasts of that young person could be clearly seen on the video.

30. This constitutes the second principal offence of produce child abuse material (sequence 4).

31. Also found on your mobile phone was a video dated 15 October 2017. Again, this was obtained by you placing a secret camera somewhere within your house where K was observed again to be wearing a towel after showering. She is seen removing the towel and dressing. Again, the vagina and breasts of that young person could clearly be seen on the video.

32. This constitutes one of the matters of produce child abuse material (sequence 5) which is on the Form 1 to be taken into account with sequence 4.

33. Also on your mobile phone was a video dated 28 October 2017. Again, this video was produced by you by means of a hidden camera in your house. And again, it records K entering and undressing in a room in your house. The vagina of that young person could be clearly seen on the video.

34. This is the second matter of produce child abuse material (sequence 6) which is to be taken into account on the Form 1 for sequence 4.

35. Also found on your phone was a second video dated 28 October 2017. Again, this was produced by you by means of a hidden camera within your house. And again, it shows the young person, K, entering a room after showering only wearing a towel, which she removed before dressing. The vagina and breasts of that young person could clearly be seen on the video.

36. This constitutes the third matter of produce child abuse material (sequence 7) which is to be taken into account in relation to the principal offence sequence 4.

37. After this material had been observed by the police, you were arrested. During the recorded interview which followed that arrest, you were very evasive when you were asked questions, including stating you couldn’t remember who A was. I shall come back to that matter later in these remarks when I consider a number of things that you told your psychologist and when I assess your remorse and your prospects for rehabilitation.

38. The electronic devices which were seized during the execution of the search warrant at your premises were subsequently examined by the State Electronic Evidence Branch of the NSW Police.

39. A hard drive disk was found to contain, amongst other things, 25 images of child abuse material.

40. Of those 25 images, 17 were determined to be in Category 1 of the Interpol Baseline Categorisation. That category includes an image depicting a real pre-pubescent child and the child is engaged in a sex act, witnessing a sex act, or the material is focused / concentrated on the anal or genital region of the child. The remaining 8 images were in Category 2 of the Interpol Baseline Categorisation and that is other child abuse material not included within Category 1; such material includes a person who is, or appears to be, or is implied to be a child, and is depicted or described in a way that reasonable persons would regard in all the circumstances offensive, and who:

• is a victim of torture, cruelty or physical abuse, or

• is engaged in or apparently engaged in a sexual pose or sexual activity (alone or in the presence of others), or

• is in the presence of another person who is engaged in or apparently engaged in a sexual pose or sexual activity, or

• is exposing the genital area, or anal area, or breasts of a female child.

41. I pause to observe that I do not regard the Interpol Categorization Scheme to be helpful in understanding the nature of the material – without the Court having to review an agreed representative sample of that degraded and degrading material. Personally I found the previously used Child Exploitation Tracking System to be of far more assistance in understanding the nature of the material without having to undertake the undesirable task of viewing an agreed sample.

42. To return to the narrative, it is estimated that between 45 and 111 of the picture files on that hard drive were child abuse material downloaded from the internet.

43. On the same hard drive, a number of video files were located. Of those examined by the police, four were determined to be child abuse material. Of those four videos, one fell into Category 1 and three fell into Category 2. It is estimated that between 4 to 7 of the total number of video files were child abuse material downloaded from the internet.

44. It is the possession of this material that constitutes one of the principal offences of possess child abuse material (sequence 8).

45. Another disk / flash drive was found in your bedroom. When it was examined, amongst other things, 20 images were found of a child of about 12 years of age posing semi-dressed or naked. The child’s vagina and breasts could be clearly seen within the images. Those images were assessed as being within Category 2.

46. Also on that flash drive were five video files. Three of them were determined to be Category 2 child abuse material.

47. The material on this flash drive was of unknown children.

48. This constitutes the matter of possess child abuse material which is to be taken into account with the principal offence being sequence 8.

49. Also on the hard disk drive was found another folder. Within that folder, there were 934 picture files of which 689 were of the young person K. The vast majority of the pictures depicted her face only. However, nine images were of her breasts or vagina.

50. These images appear to have been taken by the young person herself. How it was that those images and material were downloaded from her mobile phone to your folder is not revealed by the material before me.

51. This constitutes the second principal offence of possessing child abuse material (sequence 14).

52. Finally, on the hard drive was found a number of videos which had been prepared by the use of secret recording devices installed by you within your bathroom. The videos record a number of different people – adult females and children – entering the bathroom and using the toilet. Six of the files contain images of children going to the toilet.

53. This constitutes the third principal offence of possessing child abuse material (sequence 15).

54. It is necessary for the Court to make an assessment of the objective seriousness of each of the principal offences for offences of their kind.

55. In relation to the offence of sexual assault, the offence is above the mid-range and into the upper range of objective seriousness for an offence of its kind.

56. Insofar as the first offence of produce child abuse material is concerned (sequence 2), it is a mid-range offence.

57. In relation to the second produce child abuse material offence (sequence 4), it is slightly below a mid-range offence.

58. In relation to the first possess child abuse material offence (sequence 8), it is towards but not at the bottom of the range.

59. In relation to the second possess child abuse material offence (sequence 14), it is towards the bottom of the range.

60. In relation to the third possess child abuse material offence (sequence 15), it is also towards the bottom of the range.

61. You did not give direct evidence in the sentencing hearing. Your subjective circumstances were advanced indirectly through the expert psychologist’s report prepared by Dr Collins.

62. As I have indicated at the beginning of these remarks, you were approximately 41 years of age at the time the offences were committed, and you were separated from your de facto partner.

63. You were born in Victoria and were the youngest of three children to your parents.

64. You were brought up in a generally loving environment – although I do note you told Dr Collins that there was some form of corporal punishment administered by your father. It does not seem that that form of discipline has had any adverse significant impact on you.

65. You were, however, largely isolated at school, and you left part way through Year 10.

66. You have had a good and consistent work history since leaving school.

67. You have an unremarkable medical history and have had no issues with alcohol, illicit drugs, or gambling.

68. You have apparently had seven heterosexual relationships with adult women since turning 18.

69. Dr Collins diagnosed you as having long term depression with consequential social isolation and distrust of others. Dr Collins, however, has also noted that your depression has (somewhat unusually) resolved since you were taken into custody.

70. You denied having any sexual interest in any of your victims – and you denied any sexual interest in children generally.

71. Dr Collins noted that such a denial was common for offenders of these types of offences.

72. Notwithstanding your denial, I am satisfied beyond reasonable doubt that you committed these offences because you are a person who has a sexual interest, not only in these two particular victims, but with respect to children generally.

73. You also informed Dr Collins that you had installed some of the cameras in your home because your children were truanting from school and were lying to you about that, and that the cameras were installed to check on what they were doing. The fact that the cameras were installed in the bathroom makes that explanation highly improbable and I reject it.

74. You also informed Dr Collins that “it was your intention to be gaoled and that the offences were “my way out”.” This assertion is not consistent with that aspect of your interview to which I have earlier reviewed, namely your evasiveness and your denial of remembering one of your victims.

75. You expressed only the most minimalistic form of remorse to Dr Collins.

76. I do not accept that the pleas of guilty were even, in part, an expression of remorse. It had utilitarian value, however, in the face of an overwhelming Crown case.

77. You have no prior criminal history.

78. You have not, to date, had any psychological treatment with respect to your sexual attraction towards children.

79. You have no community, and little family, support.

80. In all these circumstances, I regard your prospects of rehabilitation as being guarded.

81. In your case, considerations of both specific and general deterrence are fully engaged – i.e. the sentences to be imposed must seek to discourage you and others from committing these offences.

82. As I have just indicated, you entered a plea of guilty at the first available opportunity and accordingly there will be a relevant discount of 25 per cent.

83. For each of the principal offences, I am satisfied that no sentence other than a term of full-time imprisonment is appropriate.

84. You had been in custody as at the initial sentence hearing date of 14 February 2019, solely referable to these matters, for 400 days and you have remained in custody since 14 February 2019, again solely referrable to these matters. Accordingly, the aggregate sentence which I shall soon impose upon you will be backdated by 408 days.

85. Because I intend imposing an aggregate sentence, it is necessary for me to state the indicative sentences underpinning that aggregate sentence.

86. For sequence 1, the indicative sentence is 7 years minus 25 per cent, i.e. 5 years 3 months. The indicative non-parole period is 3 years 11 months.

87. In relation to sequence 2, the indicative sentence is 4 years minus 25 per cent, i.e. 3 years.

88. In relation to sequence 4 and taking into account the three matters on the Form1, the indicative sentence is 3 and half years minus 25 per cent, i.e. 2 years 7 months.

89. In relation to sequence 8 and taking into account the matter on the Form 1, the indicative sentence is 3 years minus 25 per cent, i.e. 2 years 3 months.

90. In relation to sequence 14, the indicative sentence is 2 years minus 25 per cent, i.e. 1 year 6 months.

91. In relation to sequence 15, the indicative sentence is 18 months minus 25 per cent, i.e. 13 months.

92. No indicative sentence would have been totally concurrent with another.

93. It was submitted on your behalf that I should make a finding of special circumstances to vary the ratio of the head sentence to the non-parole period.

94. In this regard, although this is your first time in custody: I am not satisfied that it would be more onerous for you than for other offenders – indeed, I have noted that you told Dr Collins that you had adjusted satisfactorily into the prison environment; and I am not satisfied that your prospects for rehabilitation would be enhanced by a longer period on parole – and, in any event, the parole period I intend imposing will be sufficient to assist you to re-establish in the community. Accordingly, I decline to make a finding of special circumstances.

95. HL, of the offences of sexually assaulting a child under the age of 10 years, producing child abuse material, and possessing child abuse material, you are convicted.

96. I sentence you to an aggregate term of imprisonment of 8 years.

97. I fix a non-parole period of 6 years to date from 10 January 2018 and which will expire on 9 January 2024.

98. I fix a balance of 2 years to date form 10 January 2024 and which will expire on 9 January 2026.

Decision last updated: 13 March 2019