R v JM

Case •

[2020] NSWDC 140

•

17 April 2020

No judgment structure available for this case.

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v JM [2020] NSWDC 140
Hearing dates: 9 April 2020
Date of orders: 17 April 2020
Decision date: 17 April 2020
Jurisdiction:Criminal
Before: Priestley SC, DCJ
Decision:

See [56]

Catchwords: CRIME — Sexual offences — Act of indecency
CRIME — Child sex offences — Child abuse material — Production/Dissemination/Possession
CRIME — Child sex offences — Sexual intercourse with child >10 <14
CRIME — Child sex offences — Procuring or grooming child for unlawful sexual activity
CRIME — Sexual offences — Indecent assault
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Cases Cited: Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
AH v R [2015] NSWCCA 51
R v Holder [1983] 3 NSWLR 245
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
R v Hudson (Supreme Court of New South Wales, Court of Criminal Appeal, Sully, Ireland JJ, Spigelman
R v Gavel [2014] NSWCCA 56
R v Porte [2015] NSWCCA 174
Category:Sentence
Parties: Regina (Crown)
JM (Offender)
Representation: Solicitors:
Mr Gerrish, solicitor for the DPP
Mr Behan, solicitor for the Offender
File Number(s): 2018/00387870

Contents

Judgment

Introduction

Charges, maximum sentence and SNPP

Form 1 procedure

Standard non-parole period

The facts and assessing objective seriousness

Section 21A.

Subjective case

Psych report

Sentencing assessment report

Testimonials

Guilty plea

Good character

Likelihood of reoffending, remorse and contrition

Victim impact statement

Totality

Special circumstances

Sentencing considerations

Indicative sentences

Aggregate sentence

Orders

Judgment

Introduction

  1. The offender appears for sentence on a total of 16 charges. One of them is a charge of sexual intercourse with a child over 10 years and below 14 years. In relation to that charge there are 4 offences to be dealt with by way of the form 1 procedure. All of the 16 charges and the 4 form 1 charges are sexual offences involving children. The offending occurred between July and December 2018. The victim of the assault matters is the offender’s granddaughter who was 11 years old at the time of the offending.

Charges, maximum sentence and SNPP

  1. There is one charge under section 66EB(3), by which it is an offence to engage in any conduct exposing a child to indecent material and done so with the intention of making it easier to procure the child for unlawful sexual activity. The maximum penalty is 12 years imprisonment and there is a standard non-parole period of 5 years.

  2. There are 8 charges under section 61M(2) which is an offence of aggravated indecent assault on a person under the age of 16. In each case the circumstance of aggravation is the victim is under the authority of the offender. The maximum sentence is 10 years imprisonment with a standard non-parole period of 8 years. Two of the form 1 offences were also under this section.

  3. There are 3 charges under section 91H(2), which is the offence of producing, disseminating or possessing child abuse material. There is a maximum penalty of 10 years imprisonment and no standard non-parole period. Two of the form 1 offences were also under this section.

  4. There were 2 charges under section 61N(1), which is the offence of committing an act of indecency with or towards a person under the age of 16, or incites a person under that age to an act of indecency. The maximum penalty is 2 years imprisonment and there is no standard non-parole period.

  5. There was one charge under section 66C(2) which is the offence of sexual intercourse with a person above the age of 10 and under the age of 14 in circumstances of aggravation. The circumstance of aggravation is that the alleged victim was under the authority of the offender. The maximum sentence is 20 years imprisonment with a standard non-parole period of 9 years.

  6. Lastly there was one charge under section 91G(1)(a) which is the offence of using a child under the age of 14 for the production of child abuse material. The maximum penalty is 14 years imprisonment with a standard non-parole period of 6 years.

  7. In respect of both the maximum penalties and standard non parole periods I take them into account as being guide posts, and matters to be considered along with the range of other matters considered in these reasons in determining the appropriate sentences. In this case it is plain that the offences with the exception of the two 61N offences are considered very serious by the legislature, a view reflected in the authorities, and I take this into account.

Form 1 procedure

  1. The four form 1 offences relate to the section 66C charge of sexual intercourse. In regards to the Form 1 procedure it is important that the focus remains on the principal offence for which the offender is being sentenced. The procedure allows that in doing this greater weight may be given to the elements of personal deterrence and the community’s entitlement to extract retribution for serious offences. Those two elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence; see Attorney General’s Application under s37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 per Spigelman CJ.

Standard non-parole period

  1. By section 54A (2) the standard non-parole period represents the non-parole period for an offence that taking into account only the objective factors affecting the relative seriousness of that offence is in the middle of the range of seriousness.

  2. In line with the High Court decision of Muldrock I consider it necessary to take into account the standard non-parole period as a guidepost for offending that is in the mid range as being a factor indicative of the seriousness with which the legislation views this offending.

  3. At [29] of Muldrock it was said that Division 1A requires sentencing judges to state fully the reasons for arriving at the sentence imposed. In discussing what was required by section 54B(4) which was to the same effect as the current section 54B(3), the Court said that “the obligation applies in sentencing for all division 1A offences regardless of whether the offender has been convicted after trial or whether the offence might be characterised as falling in the low middle or high range of objective seriousness for such offences”. The obligation being referred to was the central purpose of division 1A, to require sentencing judges to state fully the reasons for arriving at the sentence imposed.

  4. In complying with the obligations of Division 1A as I am attempting to do here there will be noted the fact of the early guilty plea. The reasons for a variance from the standard non-parole period will include that fact as well as, when my assessment of the offence is that it is not in the mid range of objective seriousness, the period does not apply. There is also the other subjective factors that may be relevant as discussed below.

The facts and assessing objective seriousness

  1. Before dealing with the facts of each of the offences I propose setting out matters which are relevant to consider for that task in respect of the different types of offences. I then propose to give my assessment of the objective seriousness of each offence as I set out the facts relevant to that offence. I have dealt with the offending in chronological order as set out in the facts rather than seeking to group them into categories of offences.

  2. In respect of the offences relating to the victim relevant factors to consider include how the offences took place, the degree of coercion and over what period of time. Aggravating factors will be referred to also with the caveat to ensure that there is no double counting. The Crown submitted and I accept that other factors to consider include the age of the victim, where the victim was touched, and whether the touching was skin to skin or through clothing,

  3. I have also been assisted by the submissions for the accused which referred to the degree to which the offender has exploited the use of the victim in the form of sexual activity involved.

  4. The following summaries are taken from the agreed facts which form part of the Crown bundle which became exhibit A:

  1. Seq 1, s66EB:   the victim, the granddaughter of the offender, during school holidays stayed with her grandparents. The victim entered the lounge room and saw the offender watching a man and a woman engaged in sexual intercourse on his iPad. The offender asked the victim to sit on his lap which she did and he continued to watch the pornography. As with many of the offences this is a gross breach of trust. The offending occurred in a home and although it was the offender’s home that still satisfies the aggravating criteria in section 21A and furthermore being the place visited by the granddaughter on her holiday clearly has analogies to a home. Nevertheless this does not appear to have been a lengthy event and in all the circumstances I would assess it as below the mid range.

  2. Seq 2, s61M(2):   As I read the facts what then happened on that same occasion was the offender asked to see the victim’s breasts. The victim lifted her shirt up and the offender rubbed her breasts. The victim then went to bed. This is skin on skin contact of a young girl’s breasts. The event was brief and involved no physical coercion. The charge is of aggravated indecent assault with the circumstance of aggravation being the victim being under the authority of the offender. There is the further aggravating factor of a breach of trust and the offence occurred in a person’s home. I note the argument of some overlap between the aggravating feature of the offence and the aggravating factor of a breach of trust. To my mind on the facts of this case there is some overlap here so that to take both into account would amount to double counting because the source of the authority and the trust is the fact of the grandfather/granddaughter relationship. I would assess this as below the mid range. I note this was one of the form 1 offences.

  3. Seq 3, s91H(2):   A few days later so presumably still on holidays the victim was naked in the shower when the offender walked in and asked if he could film her to which she agreed. The offender then asked if he could enter the shower and the victim said yes and he undressed and did so. This was the charge of produce child abuse material. The extent of the activity being filmed is the child being in the shower and then the acts of sequences 4, 5 and 6 described below. Given my assessment of those matters I would assess this count, sequence 3 as in the mid range.

  4. Counts 3, 4 and 5 which are sequences 4, 5 and 6 are each counts of aggravated indecent assault, s61M(2). This occurs once the offender is in the shower where he rubbed his penis on the stomach of the victim and around her breast (seq 4) area and then left the shower got his camera and re-entered the shower. The offender asked if he could film her vagina. The victim agreed. The offender asked her to spread her legs and he opened her vagina with his fingers and filmed her vagina (seq 5). The victim asked him not to put his fingers inside her. The offender then asked the victim if she wanted to steer his penis as he needed to go to the toilet and the victim said no. The offender then placed the victim’s hand on his penis whilst he urinated and then with his other hand urinated on his fingers and licked his fingers and also licked the urine from the go pro camera (seq 6). These events constitute 3 incidents of aggravated indecent assault with the same aggravating feature as above. This is skin on skin contact. It is contact by the offender with the victim’s vagina and by the victim with the offender’s penis. It also has elements of perversion beyond what is inherently involved with child abuse. I consider each of these counts to be well into the mid range.

  5. Seq 7, s61N(1):   A further few days later so still on holidays the offender followed the victim to the toilet and asked to record her urinating. The victim said no. The offender asked to watch and the victim said yes. When the victim was urinating the offender asked her to spread her legs and cupped his hands and caught her urine and drank it and said “your pee is really warm and nice”. This charge is to incite a person under 16 years to commit an act of indecency. By any reasonable standard this behaviour is simply bizarre. This is a grandfather with his young granddaughter. The act is horribly indecent and I consider it in the mid range.

  1. The above offending all occurred in an approximately 2 week period or 15 days to be precise in July 2018 and accounts for 7 of the 20 offences including the form 1 matters. The balance of the offending occurred at another location to where the offender had moved in the period October through to December 2018. These offences are as follows;

  1. Seq 8, s61N(1):   on an occasion when the victim was staying with the offender they were in a caravan park pool when the victim said she needed to go to the toilet and the offender said to just pull her pants down and go. She did so with the offender then putting his head under the water in front of the victim’s vagina opening his mouth as she urinated. He then brought his head up out of the water and said “Ahh that’s good wee”. This is the second of the charges of incite a person under 16 years to commit an act of indecency. My view of this is the same as for the first such charge and I consider it mid range.

  2. Seq 9, s61M(2):   Next, in November 2018 the victim and offender were again in the pool when the offender said “I want to lick your boobs” and pulled down the bikini top of the victim and licked her breast. The offender said “that was a good lick” and the victim asked if they could just play and not do that. The offender replied okay. The tragedy of this is this young victim wanting to just have a healthy play relationship with her grandfather not a perverted relationship of sexual abuse. It assists the offender that he did not persist on this occasion. The matter of aggravation is the offender being in a position of authority. I find it hard to assess this matter as being low range. Here is a 54-year-old grandfather licking the breasts of his granddaughter. It is not just skin on skin of a hand pressing up against the breast; it is the grandfather’s tongue. I consider this in the mid range.

  3. Sequence 10 was a form 1 matter of produce child abuse material (s91H(2)). The offender asked the victim if he could see her boobs and she pulled down her bikini top and exposed her breasts which the offender filmed. He also filmed sequences 11, 12, 13 and 14 described below. In respect of sequence 10, in producing this material only one victim is involved. The acts being filmed however are serious sexual acts amounting to significant abuse. For that reason I would assess this as being in the mid range. I note that this is the first of the form one matters of an offence under section 91H(2).

  4. Sequence 11 (s61M(2)) is touching the victim on her breasts which I assess as being in the low range despite its skin on skin nature. There is no indication of just how long this went for. This was a form 1 matter.

  5. Sequences 12 and 13 are aggravated indecent assault charges (s61M(2) with the same aggravating feature as before. One offence is touching the victim on the outside of her vagina over her swimmers which I would assess as below the mid range given that it is not skin on skin. The other is of licking the victim on her breasts and kissing the other breast. The aspect of licking in my view elevates it to beyond the low range.

  6. Count 11 which I understand is sequence 14 is a charge of sexual intercourse with a person over 10 and below 14 years; s66C(1). Still in the pool the offender asked the victim if he could look at the hairs on her vagina. He pulled down her bikini bottoms. He held her waist and put his head under the water and licked her vagina. This offence occurred between 15 November and 12 December 2018 and appears to be the last of the assaults on the victim. In terms of this sexual intercourse charge there is again the circumstance of aggravation of occurring under the authority of the offender and intertwined with that the issue of the breach of trust discussed above. The fact that they may be one matter does not mean that the seriousness of the breach of the authority is not added to by the gross breach of the trust inherent in a grandfather granddaughter relationship. This is an offence that, as the offender fairly points out, can be committed in a number of ways of penetration and on a broad view the penetration here is in the low range. The whole idea however of purportedly playing with your granddaughter in a swimming pool and then performing a form of cunnilingus on her comfortably places this in the mid range.

  1. Later videos were found by the victim’s mother showing the offender in the pool with the victim and also videos of the victim in a caravan and semi nude. A confrontation ensued with the offender initially asserting he did not know how the images got there. The offender left saying he would not be back with the suggestion being that he may self harm. He was later that evening on 13 December 2018 admitted to the mental health unit at a hospital. The police carried out a search of the offenders caravan and on 14 December they interviewed him and arrested him on 17 December. The offender largely admitted the offending with exceptions to the initial iPad incident and the sexual assault charge. The search also revealed 1169 texts between the offender and the victim including their professing their love for each other. It was the contents of the electronic storage items which revealed the child abuse material the subject of the some of the following charges. The photos also substantiate two further aggravated indecent assault charges. Those remaining charges are as follows:

  1. sequences 15 and 16 are possess child abuse material and use a child under 14 to make child abuse material which is founded on 100 images of the victim, s91H(2) and s91G(1)(a) respectively. Annexure A sets out these images which range from being as low-level as the victim with clothes on and smiling through to the victim being naked and holding a soft male penis, kissing a limp male penis and close-ups of a young female vagina and of the victim sitting on a naked male with the male’s penis seen against her vagina. I would assess these matters as in the mid range

  2. sequence 17, s61M(2):   this is an aggravated indecent assault with the same circumstance of aggravation and found on the photograph showing the victim sitting astride the offender with her genitalia pressed against the groin area of the offender. Both offender and victim are naked and the offender’s penis is not visible but it is not alleged intercourse is occurring. I assess this as above the mid range.

  3. Sequence 19; s61M(2):   this is aggravated indecent assault with the same circumstance of aggravation the same breach of trust and images of the victim holding the penis of the offender and kissing his penis. I assess this as being in the mid range.

  4. The last 2 charges are sequences 20 and 21 of possessing child abuse material and produce child abuse material (s91H(2) x 2). Sequence 20 was the fourth form 1 offence. Further images were found on the offenders laptop to found these charges. The images show the victim changing into swimmers and in a semi nude state, in a pool with the offender pulling down her pants exposing her buttocks as well as lifting her bikini top and touching on her breast and of pulling down her pants and putting the go pro camera inside her swimming bottoms and filming her vagina and lastly of kissing her on the mouth and then holding her legs underwater and filming her vagina. I would assess this as in the mid-range in both counts.

Section 21A.

  1. I have touched on the overlap of subsection (2)(k) and the aggravating circumstance of the indecent assaults. In assessing the objective seriousness of these matters I have taken into account the issues of the position of trust and authority involved in this offending and it seems to me, concomitant with that is the vulnerability of the victim. I have taken into account when relevant the fact that the offending occurred at the home of the offender, which falls within subsection (2)(eb) which in any event should be a place akin to a home for the victim.

  2. The aggravating feature of a planned organised activity is difficult to assess in this case. The offending occurred in July 2018 and then again in a period from November to December 2018. It was not a continuous period of offending in that time though it would seem broken not due to any self-discipline of the offender but by physical distance between offender and victim. Some of the offending does have the appearance of being opportunistic such as some behaviour in the pool; against that however some of that offending occurred with a camera nearby which suggest some forethought. My view is that this is part of planned criminal activity though I consider it should be viewed as demonstrating the degree of determined intention to criminally offend as opposed to some highly planned specific criminal act. I take this into account in addition to the matters relied upon in assessing objective seriousness.

  3. As to mitigating factors there was argument concerning the application of section 21A(5A). The question here is whether the good character of the offender assisted in the commission of the offending.

  4. In support of his argument Mr Behan for the offender relied upon AH v R [2015] NSWCCA 51. In that case the offender was the de facto partner of the mother of the victim. In our present case it was not the standing in the community of the offender that aided in enabling the offending. Rather it is his standing as the victim’s grandfather, unassociated (at least on these facts) with his good character.

  5. Other mitigating features relied upon include the lack of any prior convictions, an argument the offender is unlikely to reoffend and has good prospects of rehabilitation and is remorseful. The guilty plea is also relied upon. The basis for these submissions is found in the psychologist report of Ms Howell and the sentencing assessment report as well as of course the self-evident nature of the criminal history in the Crown’s evidence. I consider whether these matters have been made out below.

Subjective case

Psych report

  1. The offender was born on 18 October 1964 and had an unremarkable childhood apart from suffering from dyslexia which caused some learning struggles. He left school in year 10 and worked initially as a painter and later as a farm hand. He is presently meaningfully engaged in work in the kitchen at the correctional Centre. He married in 1984 and remained married until the discovery of the current offences. He has 3 children. His medical history includes sciatic problems leading to a period of addiction to oxycodone which he overcame and a formal diagnosis of depression some 15 years ago and he remains on anti-depressant medication. There has been suicidal feelings and one incident where after some drinks he took too many OxyContin tablets. He has been having counselling for suicidal thoughts which are being managed well whilst in custody. A depression anxiety and stress scale test showed clinical levels of depression and stress with moderate anxiety consistent with his current circumstances. His alcohol use increased at one stage which led to him being described as abusive by his wife and lead to him stopping drinking altogether for 8 years.

  2. In terms of the current offending he said he does not know why he did it and said it seemed like sex education for the victim which I find a ridiculous thing to say though the offender does say that that was his view at the time. The evidence of remorse contained in various letters referred to below I accept as showing true remorse. I do not think the offender lacks insight into the gravity and devastating effects of his offending now.

  3. In his interview with Ms Howell he acknowledged the damaged relationship with his grandchildren with whom he had formerly had a good relationship. He has now lost contact with his son and his partner and their children who have told him they would contact him when they were ready. He frankly stated he takes full responsibility for his decisions and behaviour. He said he feels a deep shame and remorse.

  4. In terms of risk assessment for further offending Ms Howell assessed him as below-average risk. Ms Howell assesses the offender with good prospects for rehabilitation. She bases this on the offences being opportunistic. She refers also to his lack of prior convictions. This is an optimistic view which I consider may be justified however I think it overemphasises the idea that this is opportunistic offending. I have discussed this above in respect of planning. Nevertheless I accept that there is a low risk of reoffending and that there are good prospects for rehabilitation. I note also that Ms Howell identified courses in custody that may assist dealing with the depression of the offender which is not going to be assisted by the custodial sentence.

Sentencing assessment report

  1. This consisted of a report dated 24 September 2019 and also a document called a structured case note. Consistent with my observations above this reports that the offender demonstrated insight, expressed willingness to undertake intervention and was assessed at a medium-low risk of reoffending. The structured case note is for the purpose of assessing the suitability of the offender for various treatment programs for sex offenders and they make comment regarding risk considerations. It is not a comprehensive risk assessment. The assessment of this report was of the offender being a below-average risk of reoffending. The report states the offender would benefit from a comprehensive sex offender risk management assessment post sentencing. It sets out how he would go about doing this and states he would need a minimum period of 3 years post sentencing. My view is that if the courses are available then the offender should take all steps for that treatment to be made available to him.

Testimonials

  1. Exhibit 4 was a letter of a good friend of a cellmate of the offender. There has been communication between them. She offers support for the offender who clearly has impressed her in their dealings.

  2. I also deal here with 2 letters written by the offender. One is a letter to the victim which became Exhibit 3. As noted above I consider that to be a true and heartfelt expression of remorse. The same can be said of Exhibit 2 which is a letter to the presiding judge. In that letter the offender apologises for his offending, expresses his remorse and accepts responsibility for his actions. In Exhibit 2 he states that there is no excuse for his actions and the fault for his behaviour lies solely with him.    

Guilty plea

  1. I find the offender is entitled to the 25% discount for entering his plea at the earliest time. There is no dispute on this point.

Good character

  1. For the reasons discussed above I take into account the fact that this offender has no criminal history at the age of 55. There is a lack of testimonials of people who have known him prior to his imprisonment that seems to me understandable in circumstances where his family have turned away from him and it is perhaps the case that so too have others that he may otherwise have called friends. On one view this is a regrettable approach for it discounts entirely the worthwhile things a person may have done before their offending and those pre-offending matters are matters which if evidenced can assist an offender. Here however there is no such evidence beyond the clear criminal record which I take into account

Likelihood of reoffending, remorse and contrition

  1. These matters have been addressed above in discussing the report of Ms Howell. In my view that report together with the sentencing assessment report and the letters to both the court and to the victim show the offender to be truly remorseful and contrite. As noted above I accept the assessment of the low risk of reoffending.

Victim impact statement

  1. Part of exhibit A was a victim impact statement. The victim records having trouble trusting people though there are some she does trust. She reports difficulties connecting with family as she used to and to having erratic emotions. She speaks of feeling that she is nothing on some days and of dreaming into space. In accordance with section 30E CSPA, I have considered this statement which seems to me to be entirely consistent with the accepted view of the impact of such offending on young people. The one observation to be made is that it is important for this young victim to understand that nothing that has occurred is any fault of hers and that it is to be hoped that with the love and care of her family and friends she will go on to have a full and satisfying life that any young person deserves.

Totality

  1. In a case such as this, with 20 offences in the time frame outlined above, the principle of totality clearly has a role to play. R v Holder [1983] 3 NSWLR 245 called for an evaluation in a broad sense of the overall criminality involved in all of the offending and then a determination of what downward adjustment is necessary if any so as to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.

  2. In Cahyadi v R[2007] NSWCCA 1; 168 A Crim R 41 at [27] it was said:

  3. “[T]here 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: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

  4. Many of the offences have been assessed as being in the mid range of objective seriousness, and the subjective case of the offender, whilst not poor, is not an overwhelming one. The sentence for any one of the mid range offences will be significant, with the result that the totality of the sentencing will be very high. This would not achieve a proportional outcome. The result is that there will necessarily be a significant degree of concurrency, which will be reflected in this case by a significant aggregate sentence, which is the way I propose dealing with the matter.

Special circumstances

  1. I also accept the submission that special circumstances can be found in this case due to the need for rehabilitation. The offender rightly refers to the anticipated lengthy custodial sentence, the fact of it being the first period of custody for the offender, the fact that the offender either is or would be likely to be on Limited Association with difficulties in custody which also includes his history of depression and the good prospects of rehabilitation which may benefit from extended supervision on parole. The Crown did not argue against special circumstances referring to the first time in custody. For these reasons I find there it is special circumstances in this case.

Sentencing considerations

  1. There is no argument but that there is no more appropriate sentence than a full-time custodial sentence; section 5 of the CSPA.

  2. Section 3A sets out the purposes of sentencing. They are in short:

  1. to ensure the offender is adequately punished;

  2. both general and specific deterrence;

  3. to protect the community;

  4. to promote rehabilitation of the offender;

  5. to make the offender accountable for his actions;

  6. to denounce the conduct;

  7. to recognise the harm done to the victim and community.

  1. The evil of these offences is that the role of a grandparent in the life of a grandchild is to provide them with some guidance and assistance and healthy love to assist them in their lives, not to abuse them for base pleasures of a perverted kind with the inherent consequence of detrimental effects upon the child for a long period if not for the rest of their life.

  2. It is this view which dictates as is established by authority the need to sternly punish this offending. For example in R v Hudson unreported 30 July 1990 the court stated:

  3. Children in a family situation are virtually helpless against sexual attack by the male parent and… Children have a right to be protected from sexual molestation within the family and… This can only be achieved by the courts imposing sentences of a salutary nature.

  4. Whilst these comments were obviously made concerning fathers they are equally relevant to grandfathers.

  5. R v Gavel [2014] NSWCCA 56 considered a number of offences including under section 91H. At [92] the court noted the increase in the maximum penalty in 2009 from 5 years to 10 years imprisonment and noted the sentencing council’s statement that the increase would serve to emphasise the need for denunciation and general deterrence. In Gavel an indicative sentence of 4 years with 3 years non-parole period was stated. The appeal judgement does not give great detail as to the types of images but indicates there were a substantial number of them with some involving animals. Furthermore there were 2 further 91H matters taken into account on a Form 1 the details of which are not set out.

  6. R v Porte [2015] NSWCCA 174 considered offences of accessing child pornography contrary to section 474.19 of the Commonwealth criminal code and of possessing child abuse material contrary to section 91H of the crimes act.

  7. In relation to the possession charge there were a total of more than 34,000 images. They fell into each of the 6 categories on the CETS scale of objective seriousness with the vast majority of them being in category 1, the lowest category. The facts in relation to the access charge were that some 48 child pornography videos had been accessed and some 17 images.

  8. The court noted that offences for child pornography warrant substantial penalties with general deterrence and denunciation being paramount considerations. The Court went on to observe that possession of child pornography material creates a market for the continued corruption and exploitation of children; at [67]. The Court also noted that courts have stressed that that possession of child pornography is not a victimless crime: at [68].

  9. A helpful table of sentencing decisions concerning possession and accessing charges is found at [152]. What is notable about those cases is that they each contain a great many more images and so far as is disclosed would appear to be of a more serious category of image. I have borne those comments and sentences in mind in seeking to impose the appropriate sentence in this case.

  10. This is a case which falls squarely in that category of case which the authorities emphasised the need for general deterrence and denunciation. Nor should there be forgotten the need to punish the offender not only as retribution but also to deter him. Punishment is also to serve the purpose of recognising the harm done to both the victim and to the community.

Indicative sentences

  1. I will below indicate the offences by reference to their sequence number and state an indicative sentence and where it is a standard non-parole period matter I will also indicate the non-parole period that I would have imposed on that offence alone and indicate my reasons for varying from the standard non-parole period. In each case I have taken into account all of the matters that I have discussed above namely the objective and subjective matters and the purposes of sentencing, and including the 25% discount for the guilty plea, and where a non parole is being discussed, the finding of special circumstances. It hardly needs to be stated that there was no suggestion that there was any other appropriate sentence other than full-time custody; see section 5 CSPA.

  2. The indicative sentences are:

  1. Sequence 1:   2 years and 16 months non parole. The variation from the standard non-parole period is due to the 25% discount for the guilty plea, and the fact that the matter is below the mid range of objective seriousness

  2. Sequence 2 (form 1, so to be considered in sentencing for sequence 14):    as this is a form one matter there is no need to set the sentence and non-parole period and I take this conduct and offending into account when considering the sentence for sequence 14.

  3. Sequence 3:   2 ½ years. I note there is with this offending a need to avoid any double counting in respect of the offences which are sequences 4, 5 and 6 which were the subject of the filming of sequence 3.

  4. Sequence 4:   2 ½ years and 20 months non parole. The variation from the standard non-parole period is due to the 25% discount for the guilty plea, and the finding of special circumstances.

  5. Sequence 5:   2 ½ years and 20 months non parole. The variation from the standard non-parole period is due to the 25% discount for the guilty plea, and the finding of special circumstances.

  6. Sequence 6:   2 ½ years and 20 months non parole. The variation from the standard non-parole period is due to the 25% discount for the guilty plea, and the finding of special circumstances.

  7. Sequence 7:   1 year.

  8. Sequence 8:   1 year

  9. Sequence 9:   2 ½ years and 20 months non parole. The variation from the standard non-parole period is due to the 25% discount for the guilty plea, and the finding of special circumstances.

  10. Sequences 10 and 11 were form 1 matters of produce child abuse material and of aggravated indecent assault. As with all the form 1 matters I have detailed them above and I have considered them when imposing the sentence for sequence 14.

  11. Sequence 12:   1 year, with an 8 month non parole period. The variance from the standard non parole period is due to the offence being assessed as in the low range of objective seriousness and the 25% discount for the early guilty plea.

  12. Sequence 13:   2 ½ years and 20 months non parole. The variation from the standard non-parole period is due to the 25% discount for the guilty plea, and the finding of special circumstances

  13. Sequence 14:   5 years and 3 ½ years non parole. The variation from the standard non-parole period is due to the 25% discount for the guilty plea, and the finding of special circumstances.

  14. Sequence 15:   2 ½ years.

  15. Sequence 16:   4 years and 32 months non parole. The variation from the standard non-parole period is due to the 25% discount for the guilty plea, and the finding of special circumstances.

  16. Sequence 17:   4 years and 32 months non parole. The variation from the standard non-parole period is due to the 25% discount for the guilty plea, and the finding of special circumstances.

  17. Sequence 19:   3 years and 2 years non parole. The variation from the standard non-parole period is due to the 25% discount for the guilty plea, and the finding of special circumstances.

  18. Sequence 20:   this is a form 1 offence which I have taken into consideration in determining the sentence for sequence 14.

  1. Sequence 21:   2 ½ years.

Aggregate sentence

  1. By section 53A an aggregate sentence of imprisonment may be imposed instead of imposing a separate sentence of imprisonment for each. I have referred above to the principles of totality and of proportionality. I take into account that there were 2 distinct periods of time in which this offending occurred. The earliest in time of the offending occurred over a period of 15 days. The nature of the offences, specifically the idea that there is grooming behaviour followed by indecent assault and ultimately sexual assault although that occurred in second time period, supports the view that there is an ongoing progressive course of criminality. It follows in the way discussed in Holder that to impose a sentence for each offence will lead to a totality of a period in custody far in excess of the criminality of the course of conduct. The second period of time in which the offending occurred is damaging to the offender because it shows a determination on his part to continue that earlier course of conduct and it can reasonably be said to still be reflective of the same course of criminality upon which he has set himself.

  2. My view is that in a case where 16 different offences are being sentenced and one of them takes into account four further offences by way of the form 1 procedure and where the maximum sentences for all but 2 of the offences is at least 10 years and with 1 offence having a maximum sentence of 20 years, and with most of the sentences assessed as being in the mid range of objective seriousness and taking into consideration a favourable subjective case to arrive at the appropriate sentence by way of instinctive synthesis, an aggregate sentence that balances the principle of totality and the principle of proportionality must be heavy.

  3. In my view taking all of the above matters into account and being guided by the individual indicative sentences but bearing in mind the principles just discussed there shall be an aggregate sentence of 14 years. In line with the finding of special circumstances there will be a non-parole period of 9 ½ years.

Orders

  1. I make the following orders:

  1. In respect of each of the charged matters the offender is convicted.

  2. I note I have set out the indicative sentences above and in respect of sequence 14 have taken into account the 4 form 1 matters.

  3. I sentence you to a non-parole period of 9 ½ years commencing on 17 December 2018 and expiring on 16 June 2028. There shall be a balance of term of 4 ½ years expiring on 16 December 2032.

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Amendments

27 April 2020 - - Changed to R v JM

Decision last updated: 27 April 2020

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Cases Cited

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Statutory Material Cited

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R v Barrientos [1999] NSWCCA 1
AH v R [2015] NSWCCA 51
Cahyadi v R [2007] NSWCCA 1