R v JM and SM
[2010] NSWDC 318
•15 October 2010
NEW SOUTH WALES DISTRICT COURT
CITATION:
R v JM and SM [2010] NSWDC 318
FILE NUMBER(S):
09/253060
09/253072
HEARING DATE(S):
20 August, 2010 and 7 October, 2010
JUDGMENT DATE:
15 October 2010
PARTIES:
Regina
JM
SM
JUDGMENT OF:
Garling DCJ
COUNSEL:
Everson (Crown)
Betts (JM)
Morris (SM)
SOLICITORS:
CATCHWORDS:
CRIMINAL LAW
sentence
plea of guilty
sexual assault of child under 10
child of husband and wife co-offenders
internet chat rooms
use carriage service
Form 1
LEGISLATION CITED:
Crimes Act 1900 ss66A(2), 91G(1)(a), 91H(2), 61O(2)
Criminal Code Act 1995 s 474.17
CASES CITED:
Karel Eedens v. R 2009 NSWCCA 254
R v. Muldrock 2010 NSWCCA 106
TEXTS CITED:
DECISION:
JM A total sentence of imprisonment of 12 years with a non-parole period of 9 years.
SM A total sentence of imprisonment of 5 years and 9 months with a non-parole period of 3 years and 9 months.
PUBLICATION RESTRICTION:
Anything which would identify the offenders and the victim.
JUDGMENT:
JUDGMENT
HIS HONOUR: JM has pleaded guilty to the following charges:
Between 1st January and 10th November, 2009 at Peakhurst he did have sexual intercourse with LM a child then under the age of 10 years and under his authority. This carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years.
Between 1st January and 10th November, 2009 at Peakhurst he did have sexual intercourse with LM a child then under the age of 10 years and under his authority. This carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years.
On 16th November, 2009 at Peakhurst he did have child pornography in his possession. That carries a maximum of 10 years imprisonment.
Between 1st January and 16th November, 2009 at Peakhurst he did use a carriage service in a way that reasonable persons would regard as being, in all the circumstances, offensive. That carries a maximum penalty of 3 years imprisonment.
Between 1st January and 10th November, 2009 at Peakhurst he did use LM, a child then aged under 14 years, for pornographic purposes. That carries a maximum penalty of 14 years imprisonment.
I have been asked to take into account three matters on a Form 1. Each offence is alleged to have occurred between 1st January and 16th November, 2009. They are:
1. Commit act of indecency towards LM a child then under 10 years.
2. Is an identical charge.
3. Aggravated indecent assault.
I take these into account in relation to count 1 on the indictment.
SM has pleaded guilty to the following charges:
Between 1st January and 10th November, 2009 at Peakhurst she did have sexual intercourse with LM a child then under the age of 10 years and under her authority. This carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years.
Between 1st January and 16th November, 2009 at Peakhurst she did commit an act of indecency with LM a person then under the age of 10 years. That carries a maximum penalty of 7 years imprisonment.
Between 1st January and 16th November, 2009 at Peakhurst she did commit an act of indecency with LM a person then under the age of 10 years. That carries a maximum penalty of 7 years imprisonment.
FACTS
These are the agreed facts applicable to both offenders: The complainant was 9 years of age at the time, having been born on 14th April, 2000. The offenders are his parents. He had resided with them since birth. He attended school at a local public school. The Assistant Principal described him as polite, quiet and of no concern until he commenced exhibiting unusual behaviours in the first term of 2009. Those behaviours included inappropriate sexual conduct and he was subject to a number of reports culminating in meetings at school with the complainant and the two offenders. In November, 2009 there were further reports of inappropriate behaviour and the boy was interviewed by the Assistant Principal. He told the Assistant Principal: “My father watches sex movies on the computer” and then described what his father was doing on Yahoo Messenger which included trying to contact nudist families, asking if they have a camera or pictures of girls or boys naked. He asked questions such as “Do you like to play on cam?” He said that “play” means “have sex or anything”. He said “Dad says ‘come in here’, he makes me hard, I get a hard on and sometimes he sucks it. Mum is not involved. She knows but she doesn’t get involved.” The authorities were contacted and police officers immediately investigated.
A further interview was conducted with the complainant. He was asked his reasons for making his disclosure. He told police he finally told as he knew it was wrong and it made him sad and that he was getting in trouble at school for his behaviour.
Both offenders were arrested. JM said: “I understand that you think we are wrong but we think the human body is art and to be admired.” When told that this was in relation to child sexual assault he said his son “must be confused, its love from parent to a child. There was no violence or pain”. The complainant said that his father would use an online chat program and would enquire via text “any nudist families want to chat PM us”. PM stands for private messenger. He would then ask “Do you like to play on cam?” If the answer was “Yes” the male offender would activate the live to air web cam and the other party would do likewise. The complainant described a typical scenario. “When we see them they can watch us and we can watch them”. The complainant described one occasion when he saw video footage of a father and a daughter involved in sexual acts on the computer. The complainant further disclosed that each of the offenders had sucked his penis. He said his father had raised him as a nudist and he often walked around the house and backyard in the nude. He said he had been photographed by the male offender when he was naked on the beach and he saw the offender upload these pictures into his computer and send them to his contact list.
FACTS RELATING TO EACH CHARGE BROUGHT AGAINST JM
Count 1 The complainant described an occasion a few weeks previous to the interview when the male offender sucked his penis. He was in his parents’ bedroom on the bed. He was watching a television program, the male offender was naked on the bed next to him. The complainant said “We were just watching TV and he went over and felt my dick”. The male offender then rolled over on the bed and commenced to suck the complainant’s penis. The complainant says the male offender’s lips went fully over his penis, he could feel the male offender’s tongue. Before he went to school his father told him “Don’t you tell anyone about this”. In his interview the male offender said “We are nudists and open and free with our body. The sexual assault side of it I am not sure what my son is getting to. The three of us are very open-minded as we are nudists and our body, there’s nothing hidden. We are a very touchy-feely family which we always have been. We don’t find an offence to touch or do anything because its all consenting by everybody, nobody is forced to do anything”. He said that he had holidayed at legal nudist resorts four or five times.
The male offender agreed he had sucked the complainant’s penis moving his tongue on it. He explained his reasons: “Because he likes it, he wants it done, that’s just us being a family, being very close. We are very open to that type of thing. The law says you can’t but I mean its our way of educating our son. They are not getting any sexual education at school. He knows about sex already because we’ve sort of showed him. We’ve taught him. He knows what its all about. He’s more advanced than most kids.” The police officer asked him: “What’s he learning by you sucking his penis?” The male offender answered: “Just showing that feels good and he likes it done.” The detective asked how often he would suck his son’s penis. His reply was: “I wouldn’t know, it might happen today, it might happen tomorrow, it might not happen for another four months. Its not premeditated, just a situation that happens. You don’t get any gratification out of it. Its just being open and close and we are very close.” When asked about his knowledge of the law he said: “I imagine they wouldn’t allow it and you can tell by what you read in the media that people with kids are not supposed to touch them. I can’t see any difference in a parent holding a child’s hand to holding a child’s penis. Its only skin. We never force him to do anything. We only do what he feels he wants done.”
The male offender also said when asked about power imbalance: “It was not power imbalance because my son has grown with it and, as far as he is concerned, its a natural thing that happens. He was probably conditioned to it but conditioned in such a way it was not forced upon him if he doesn’t want to do it”.
The male offender also said that he had seen the female offender “suck the complainant’s dick. I wouldn’t call it a suck, it’s a lick just to make him happy and to shut him up because he will just keep on harping on about saying you know ‘Mummy, Dad please give us a suck”. He said it was very quick.
OFFENCE 1 ON FORM 1
When the complainant was present the female offender massaged the male offender’s penis to ejaculation. The male offender said: “He seen me come. We are an open family and these sort of things we didn’t hide.”
OFFENCE 2 ON FORM 1
The male offender massaged the complainant. He said: “If I am giving my wife a massage and my son says I want one too well he will get one. He helps me as well.” Asked whether the massage involved sexual contact the male offender replied: “Of course, you are going to rub the genital area aren’t you? It might happen once every three weeks, it might happen once every couple of days, it might not happen for a long while. He likes to have his penis rubbed a little bit. He’s obviously going to get hard very quickly, even for a nine year old”.
OFFENCE 3 ON FORM 1
Police found a video which depicted the female offender fellating the male offender. The act was shown to be taking place in front of the complainant who was sitting on the lounge less than a metre away watching.
Count 2 The male offender confessed to allowing the complainant to suck his penis. He said: “Its just a quick suck, he doesn’t stay there because he’s too young to sort of know to do any different. Its just in the art of bonding with your child”. When asked whether he had an erection he said: “Probably started to, wouldn’t have been a full one cause he’s not there long enough to make it full.”
Count 3 The police found images and video footage of child pornography on the male offender’s hard drives. Police described pictures depicting a blonde haired female child of about the age of eight years being both anally and vaginally sexually assaulted by an adult male. The child appears to be clearly distressed, crying and was wearing a black dog collar with silver coloured studs. A video depicted a young female child naked, legs apart whilst an adult female performed cunnilingus upon her. There were other videos. There were also images of the complainant with a young girl, a school friend of the complainant. Both children were naked. The male offender said there were no pornographic photographs of the complainant but there would be videos of him nude on a beach. Asked if there was any material showing the complainant in sexually explicit positions he said: “There shouldn’t be. I can’t recall taking any. Maybe just one, a picture of him and I playing on a bed both with a hard on as it was just something that happened. Very funny.” The offender said he had pornographic images on the computer: “There will be a lot that’s got sexual acts on there, a lot that I haven’t shown to my son, he doesn’t know that’s there. I know he has clicked on an odd couple when he is supposed to be doing his homework.” He admitted to having more than a hundred photographs of child pornography on his computer. Asked if there were any images of children performing sexual acts upon adults he said: “Yes. If its been forced sex I don’t like it but if it’s a normal thing that happens and the children are consenting to this, well why not?”
Count 4 Investigations revealed the offender used a chat name for Yahoo Messenger contacts. A number of chats with another man who has subsequently been arrested have been summarised. The records show that the male offender and this other man communicated on fifty three separate days. The other man says he chatted with the male offender via live web cam and text. On each occasion the other man and the male offender were nude and masturbating. On occasions the female offender could be seen, also nude, and on some occasions the male and female offenders were fondling each other. I will not list the contents of all those chats. They are part of exhibit A. However, they are of an explicit sexual nature.
Count 5 The complainant was in the main bedroom of the family home, he was lying on the bed with the female offender next to him watching a movie. The male offender entered the room carrying the web cam. He said: “S suck L’s dick to show them that you can play too.” The female offender rolled over towards the complainant and sucked his penis. He could feel her tongue moving over the top of it and the knob part inside her mouth. When asked about it the male offender said: “We talk to a lot of nudists from around the world and you like to cam with other families and I am sure if he is sitting beside me and we are camming with another family he has been there with me. We are just proving to people that we are real.” He said if his son or his wife were “beside me they would be depicted and you see other families doing to the same thing with their children”. Asked whether, whilst on live web cam with contacts, he had seen people committing sexual acts upon children he said he “wouldn’t deny it. Its very rare. Its mainly touching.”
Both offenders have pleaded guilty at an early time and it is agreed they are entitled to a twenty five per cent discount on sentence for the utilitarian value of their plea and I will give them that discount on sentence. Both offenders have been in custody since 16th November, 2009 and their sentences will be backdated to that date.
FACTS RELATING TO EACH CHARGE BROUGHT AGAINST SM
Count 1 About six weeks prior to her arrest the complainant was in the main bedroom of the family home, he was lying on the bed with the female offender next to him, they were watching a movie, the male offender entered the room carrying the web cam. He said: “S suck L’s dick to show them that you can play too.” The female offender rolled over towards the complainant and sucked his penis. He could feel her tongue moving over the top of it, the knob part, he could feel the knob part inside her moth. When she stopped the complainant finished watching the movie.
She was asked about this by the police. She said: “I did it only once and I didn’t think it was right. He wanted me to though. He was on the bed ‘cause he won’t go to bed without me. He just wanted me to suck it for him but then I said ‘No’. I said I wouldn’t do it, it wasn’t really right. I just put my mouth over it and sucked it.” She was asked if the male offender had filmed the incident, she was not sure. She said “know that he’s done it, that he’s filmed us two doing it”. She was asked her thoughts about the behaviour of herself and the male offender towards the child. She replied: “To some extent but I always said to him ‘Never do anything he doesn’t want to do’. Not that that makes it right anyway.”
She admitted abuse of the complainant had been going on for about a year. She said she had seen the male offender sucking the complainant’s penis. She admitted knowledge of child pornography on the male offender’s computer. She said: “I’ve seen a few. Ones where there’s brothers and sisters doing it. Feeling each other and licking each other and stuff.” She was asked about the ages of the participants in the pornography. She said: “They ranged from 3 to 16.” Asked how she felt about the complainant’s disclosure she replied: “I didn’t know he was hurting or anything like that.”
Count 2 The female offender admitted that the complainant had sucked her nipples. She told police about an occasion when “we were laying in bed and JM was camming to a friend and L just sort of, he reached over and sucked it because Daddy had.”
Count 3 Police found a video recording which depicted the female offender fellating the male offender. The incident occurred in the loungeroom of the premises. The act was taking place in front of the complainant who was sitting on the lounge less than one metre away watching.
EMOTIONAL HARM
The Crown tendered a report from Joanne Mercer, clinical psychologist. It was objected to, however, I allowed it but I will take care with the report as it contains material that goes beyond the agreed facts and was obtained for care proceedings. The complainant is now under the responsibility of the Department of Community Services and he is in care. His parents are not permitted to have any contact with him until he attains eighteen years of age. This report was tendered in relation to both offenders to show that there was an aggravating factor, that is, significant emotional harm. Ms Mercer said: “The emotional impacts for the child are twofold. He is struggling emotionally with an abundance of guilt relating to the consequences his parents are facing. This stems from the sense of responsibility bestowed on him from his parents. He does not fully recognise that he has been through an abusive and traumatic situation. He is about to begin a complex and long-term therapeutic process that requires him to challenge nearly all his ingrained beliefs and trust.”
This opinion could hardly be controversial. This young boy was sexually abused by his parents, those are the facts they agree to. I do not need a medical report to tell me that this young boy would have suffered emotional harm, however, the report, as far as any non-controversial part of it is concerned, clearly confirms that. I find that, as a result of the actions of the offenders, their son has suffered significant emotional harm.
Neither of the offenders have a prior criminal record and I know of no reason why I would not assume that they were previously persons of good character.
JM
This offender is 57 years of age. He married his wife in 1998 although they had lived in the same premises since 1991. Neither of the offenders gave evidence before me and all I have is the history given in the psychiatrist’s and psychologist’s reports.
On behalf of JM Dr. Collins, psychologist, provided a report and was called to give evidence. She obtained a history that he was delayed with regard to his sexual experience. His relationship with his wife was his first serious relationship. He developed an interest in nudism. He and his wife and child attended nudist camps from time to time and he began seeking out other nudist families on the internet. Dr. Collins said that the offender had given her a history that he would show himself and his family naked over the web cam. He said that he often sent images over the internet, some of which he admitted were abusive images of children. The doctor said that JM had limited sexual boundaries and was seemingly incapable of acting as an appropriate caregiver to his son in this regard. He told the doctor that he now realised that his conduct was inappropriate and abusive, however, he still thought it appropriate to engage in nudist activities around his son. The doctor said that JM “impresses as a sexually confused male with a fragile sense of self who requires treatment” and she said that he would need treatment whilst in custody.
When the doctor was giving evidence I asked her about his statements and his playing down of the offences on the basis that they were nudists and that they needed to educate their son. The doctor said that she thought he minimises that element of his behaviour which involves sexual contact with his son and he was attempting to justify why this occurred and that his actions would be for his own sexual gratification.
The doctor said that the offender poses a moderate-low risk of re-offence. However, I accept the Crown’s submission that it would be impossible for me to make any worthwhile finding at this early stage. That same comment applies to his wife for reasons I will provide.
It is the Crown case that JM is the principal offender, that he started this behaviour and then got his wife involved. I am satisfied with that as a correct submission. JM told both the police and Dr. Collins that they were nudists, open with their bodies, the sexual acts were consensual and that they were educating their son and that they were trying to provide him with sexual education, that he did not realise that what he was doing was wrong or harmful. I reject this explanation. This man was sexually abusing his son and I have no doubt he was doing it for his own sexual gratification. Dr. Collins confirms that to a degree. However, one only needs to look at the chat conversations, if I can call them that, there are many and I will just refer to a couple to illustrate what I am saying.
Chat number two where he is referring to a young girl and the male offender says: “Lucky guy. I’ll have to bring L” (his son) “over. He will like her.” The other man says: “We could get him to stick his thing in and watch.” The offender replies: “Would be cute”.
In various chats numbers four to five he refers to sexual activity between a mother, eight year old daughter and another man and says he would love that.
In chat numbers nine and ten and in particular where he is discussing a seven year old girl, the offender says: “The seven year old, that must have looked hot. He tried to slip it in her. I would if I had the chance. My cock is smaller so would get into her tighter holes.”
These conversations clearly indicate that the activity he is part of is sexually based and clearly for his sexual gratification. This is not a man who, because of some mistaken belief in nudity, was simply trying to educate his son. In my view, these conversations confirm that he is a sexual deviate and that his son was being abused sexually by him.
SM
This offender is 49 years of age. She did not give evidence, however, a report of Dr. Allnutt, psychiatrist, was tendered. She told the doctor that she was compliant with her husband’s wishes, that he introduced her to the nudist lifestyle and that they both introduced their son to the nudist lifestyle. She said she was not seeing a mental health worker and was not taking any medication during the offending period. She had previously been prescribed anti-depressants, however, the last time she had taken such medication was seven years prior to these offences. She said that during the period of offending she felt really sad and had disassociations, that she had chronic physical problems, she had difficulty making decisions and had panic attacks. The doctor said at the time he saw her she had symptoms consistent with a depression. The doctor said that the offender manifests dependent personality traits consistent with a dependent disorder, she tends to rely on others to make decisions for her and has difficulty expressing disagreement. There was evidence that, at the time leading up to the offences, she was suffering from a depressive disorder and a panic disorder and chronic pain.
I accept the doctor’s opinion. There is no evidence to the contrary. The doctor also said that, as far as the risk of her re-offending, it was unclear to him whether she still harbours attitudes which may be supportive of sexual re-offending. However, she falls into a low risk category. I do not accept that, at this stage, a reliable finding could be made in relation to this. In my view, both offenders are at risk of re-offending – to what extent I am unable to say.
SM’s attitude to these offences is almost unbelievable. She blames her husband and I am satisfied that he did have some domination over her, however, she seems to believe it is acceptable to carry out sexual acts with her nine year old son. She, like her husband, seemed to think that if her son did not protest, at the age of nine, he is consenting and indeed enjoying it. If that attitude is true, it is disturbing to find parents with that attitude in our community. The behaviour of both offenders is totally unacceptable and they must be sentenced in such a way that they both understand such behaviour is unacceptable and will not be tolerated. In addition, they must sentenced in such a way that others in the community realise that such behaviour is not acceptable and that if they do behave in this way they will be sentenced to lengthy terms of imprisonment.
RANGE - SECTION 66A(2) OFFENCES
I am required to make a finding as to where these offences fall within the range of the very serious offences with which they are both charged. That is, to place them in a range of very serious offences. The two most serious offences, pursuant to Section 66A(2), carry a maximum sentence of life imprisonment. These types of maximum sentences are obviously reserved for the worst types of cases. What I am now carrying out is a task of placing them within the range of those very serious offences.
The Crown initially argued that, where JM was concerned, his offences fell into the worst category or, alternatively, fall into the upper range of this type of offending. It is submitted on his behalf that these offences fall below the mid-range of these types of offences. On his behalf it is argued that the offences were not accompanied by threats or violence, the victim was towards the upper end of the age group, that is, nine years of age and the offence relates to children under ten. There was no physical harm.
The Crown argues that there was a significant breach of trust and significant emotional damage and that these offences occurred over at least a twelve month period and involved a mother and father.
I am not prepared to find that the male offender’s offences, pursuant to Section 66, fall into the worst category for these reasons:
1. There is no penile penetration or any similar act.
2. The victim is nine years of age. The charge relates to victims under ten years of age. We often have to sentence, for sexual acts perpetrated on young or very young children, under this charge.
3. There was no physical injury or threats.
4. As a Judge who has had to deal with a number of these sorts of offences perpetrated on young children, unfortunately, I have had to deal with cases where the factual situation is significantly worse and the abuse goes on for a longer time. In other words we see worse factual situations.
I find that these offences should fall into a range which is above the mid-range of such offences. It is difficult to place them exactly within that range, however, in my opinion these would fall somewhere in the middle of the mid- to high range.
I make that finding for these reasons:
1. There was a gross breach of trust. I accept that part of the charge is that the child was under authority but, at this stage, I am trying to place the offences within a range. It is hard to imagine a greater breach of trust than what the male offender has committed. This is his son who was entitled to be protected by his father, not abused by him. His son has now lost both his parents and, until eighteen years of age, will be in care.
2. There has been significant emotional harm. I have set out that harm at an earlier stage and you add to it what I have just said, that is, the emotional harm of losing both parents.
3. The offences took place over a fairly lengthy period of time.
4. I also have to look at the overall series of offences which includes the use of the internet.
The Section 66 offences carry a standard non-parole period of fifteen years. I do not have to impose that sentence as the offenders have pleaded guilty. If they had not pleaded guilty this would clearly fall into the category of cases which would activate such a non-parole period.
In relation to the female offender, I am also required to make a finding as to where in the range of these very serious offences, pursuant to Section 66, her offence falls. I have accepted that, to a degree, she was under the influence of her husband but this does not totally excuse what she did. I have to remember that she abused her nine year old son. This was his mother who he was entitled to look to for protection, for love, for understanding and rely on her to ensure his safety and his upbringing. She has committed a significant breach of trust. In addition, there is the emotional harm I have set out before. On the other hand, there are those matters I referred to while dealing with the male offender and, in addition to those, her offences are of a lesser nature and severity compared to those of the male offender.
I find that this offence falls at under the mid-range of these types of offences for the reasons I have set out above.
RANGE - OTHER OFFENCES
In relation to the charges against JM, count 2 is very similar to count 1, however, it does not have a Form 1 to be considered with it and therefore would attract a lesser sentence. However, it is part of the offender’s behaviour and falls into the assessment range of count 1. Count 3 I have assessed as mid-range. The pictures depicted are of a very serious nature and fall into a serious category. There were about one hundred of them and there were also videos. Count 4 would fall into a low range of these types of offences. Count 5 I am satisfied this is slightly below mid-range.
In relation to the charges against SM, I have already assessed count 1. Count 2 would fall into the lower range and count 3 would fall slightly below mid-range, that is, where the offenders are carrying out sexual activity with the knowledge that their son is watching. His facial expressions on the DVD would indicate that he is somewhat embarrassed by the position he is placed in.
There is no dispute that, as far as each of the offenders is concerned, the only possible sentence is a sentence of full-time imprisonment.
CONSIDERATION OF SENTENCES TO BE IMPOSED
I have been provided with statistical information from the Judicial Commission, however, due to the wide range of sentences, it is not of any assistance. I have considered the Court of Criminal Appeal decision Karel Eedens v. R 2009 NSWCCA 254 where the Court reviews a number of sentences imposed under Section 66A. As I understand it, the majority of those were imposed when the maximum penalty was twenty five years imprisonment. They indicate that there is a wide range of sentences imposed, however, all carry significant gaol sentences.
I have also had reference to R v. Muldrock 2010 NSWCCA 106. The facts there were that the offender tried to touch the victim’s penis on four occasions. He eventually touched the victim’s bottom then pinned the victim down and sucked his penis twice for about ten seconds. The victim was nine years of age. That offender was significantly intellectually disabled. A head sentence of nine years was imposed.
Each of these decisions has different facts to this and this sentence includes additional serious matters particularly relating to JM.
I understand that there is no dispute, and I am satisfied, that there must be partial accumulation at least of some of the offences as they are of a different nature and at a different time, however, I am satisfied in JM’s sentence that counts 1 and 2 should be concurrent as they are part of the one set of sexual behaviour.
SPECIAL CIRCUMSTANCES
I find that there are special circumstances. They include their ages and the fact that they have never been sentenced to a term of imprisonment before. However, when sentencing JM, as I am required to accumulate and to set separate sentences for each offence, the partial accumulation takes into account the special circumstances. With SM I am able to incorporate some special circumstances.
NATURE OF IMPRISONMENT
I also take into account that each of the offenders will more than likely have to serve their sentences in protective custody given the nature of their offences. The prison authorities deal with these problems on a regular basis and, whilst I take it into account, I do not regard it as a significant matter.
PARITY
As far as parity is concerned between the two offenders, I have found that JM’s offences fall into a much higher range than SM and I am not satisfied there needs to be any parity between them as a result of the different charges and the different standard of behaviour.
SENTENCES
I have taken into account all that has been submitted on behalf of the offenders and I will look at the overall criminality of their offences.
JM
Count 5 (Section 91G(1)(a): I convict you and sentence you to a term of imprisonment which consists of a non-parole period of 1 year and a total term of 3 years both to date from 16th November, 2009.
Count 3 (Section 91H(2): I convict you and sentence you to a term of imprisonment which consists of a non-parole period of 1 year and a total term of 3 years both to date from 16th November, 2010.
Count 4 (Commonwealth Criminal Code Section 474.17): I convict you and sentence you to a term of imprisonment for 1 year to date from 16th November, 2010 and to expire on 15th November, 2011.
Count 1 (Section 66A(2): I take into account the Form 1. I convict you and sentence you to a term of imprisonment which consists of a non-parole period of 7 years and a total term of 10 years both to date from 16th November, 2011. You will be eligible to be considered for release to parole on 15th November, 2018.
Count 2 (Section 66A(2): I convict you and sentence you to a term of imprisonment which consists of a non-parole period of 6 years and a total term of 8 years both to date from 16th November, 2011.
This will result in a total sentence of imprisonment of 12 years with a non-parole period of 9 years.
SM
Count 3 (Section 61O(2): I convict you and sentence you to a term of imprisonment which consists of a non-parole period of 9 months and a total term of 2 years both to date from 16th November, 2009.
Count 2 (Section 61O(2): I convict you and sentence you to a term of imprisonment which consists of a non-parole period of 9 months and a total term of 2 years both to date from 16th November, 2009.
Count 1 (Section 66A(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 5 years both to date from 16th August, 2010. You will be eligible to be considered for release to parole on 15th August, 2013.
This will result in a total sentence of imprisonment of 5 years and 9 months with a non-parole period of 3 years and 9 months.
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LAST UPDATED:
11 April 2011
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