R v Lee

[2010] NSWCCA 88

New South Wales
Court of Criminal Appeal

CITATION:	R v Lee [2010] NSWCCA 88
HEARING DATE(S):	16 December 2009
JUDGMENT DATE:	7 May 2010
JUDGMENT OF:	McClellan CJatCL at 1; Simpson J at 41; Hidden J at 42
DECISION:	Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW - determination of objective seriousness for child pornography offences - objective seriousness of sexual offences against a young person - level of consideration required of general deterrence in sentencing process for offences - whether sentencing judge erred in giving too much weight to subjective case of respondent - whether sentences imposed was manifestly inadequate
LEGISLATION CITED:	Criminal Code 1995 (Cth) Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Crimes (Appeal and Review) Act 2001
CATEGORY:	Principal judgment
CASES CITED:	House v The King (1936) 55 CLR 499 R v Booth [2009] NSWCCA 89 R v JW [2010] NSWCCA 49 R v Way (2004) NSWCCA 131; 60 NSWLR 168 SKA v R [2009] NSWCCA 186
PARTIES:	The Crown (Appellant) Richard Ngon Lee (Respondent)
FILE NUMBER(S):	CCA 2009/9168
COUNSEL:	V Lydiard (Crown/Appellant) W Roser SC (Respondent)
SOLICITORS:	Director of Public Prosecutions (Crown) Austin Haworth & Lexon (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	2009/9168
LOWER COURT JUDICIAL OFFICER:	Goldring DCJ
LOWER COURT DATE OF DECISION:	8 September 2009

2009/9168

McCLELLAN CJ at CL
SIMPSON J
HIDDEN J

FRIDAY, 7 MAY 2010

R v LEE, Richard Ngon

Judgment

1 McCLELLAN CJ at CL: This is a Crown appeal with respect to sentences imposed on the respondent who pleaded guilty to a number of offences concerned with child pornography and sexual intercourse with a person under age. He was sentenced in respect of one offence of using carriage services to access chid pornography in contravention of s 474.19(1)(a) of the Criminal Code 1995 (Cth) for which a maximum penalty of 10 years is provided. He was also sentenced for one offence of possessing child pornography in contravention of s 91H(3) of the Crimes Act 1900 (now repealed), which attracts a maximum penalty of 5 years imprisonment; two offences of sexual intercourse with a child between the ages of 10 and 14 years in contravention of s 66C(1) of the Crimes Act 1900, for which a maximum penalty of 16 years imprisonment is provided; one offence of aggravated sexual intercourse with a child between the ages of 14 and 16 years in contravention of s 66C(4) of the Crimes Act 1900, for which a maximum penalty of 12 years is provided; three offences of sexual intercourse with a child between the ages of 14 and 16 years in contravention of s 66C(3) of the Crimes Act 1900 attracting a maximum penalty of 10 years imprisonment.

2 He was sentenced as follows:

In relation to the first count a term of imprisonment of 1 year and 10 months to date from 10 December 2008 and expire on 9 October 2010, but the respondent to be released on or after 23 August 2009 upon entering into a recognisance of $1,000 to be of good behaviour for the remainder of the term of the sentence.
In relation to count two imprisonment for 1 year and 10 months to date from 10 December 2008 and expiring on 9 October 2010 with a non-parole period of 8 months and 14 days commencing on 10 December 2008 and expiring on 23 August 2009.
In relation to counts 3 to 8 his Honour ordered that the respondent be released on a bond to be of good behaviour for 3 years with a condition of the bond that he attend for counselling as may be directed by the Probation and Parole Service.

3 Although the Crown originally lodged an appeal in relation to the Commonwealth offence, that appeal was subsequently withdrawn.

4 The facts have been conveniently summarised in the appellant’s submissions which I gratefully adopt.

5 In June 2008 the Australian Federal Police Child Protection Operations Team received some information about the sharing of child pornography files on the internet. Investigations revealed that ten of the IP addresses involved were allocated to the respondent.

6 On 10 December 2008 the AFP executed a search warrant on the respondent’s parents’ home where he lived. Various computer files containing child pornography were seized for further forensic examination and “eMule” Peer 2 Peer software was found to be actively downloading child pornography files on the computer located in the respondent’s bedroom. Numerous DVD’s and CD’s containing child pornography were also seized.

7 Subsequently a review of various computer items seized revealed a total of 82,882 image files and 344 multimedia files. Their contents were summarised according to the COPINE Scale.

COPINE Scale:
1. Images depicting erotic posing with no sexual activity
2. Images depicting sexual activity between children, or solo masturbation by a child
3. Images depicting non-penetrative sexual activity between adult(s) and child(ren)
4. Images depicting penetrative sexual activity between adult(s) and child(ren)
5. Images depicting sadism or bestiality
Armor Jr computer tower:
1. 48,568 images, 74 multimedia files
2. 223 images, 3 multimedia files
3. 467 images, 4 multimedia files
4. 553 images, 15 multimedia files
5. 7 images
Total 50,818 images and 96 multimedia files
3 hard disk drives:
1. 16,833 images, 94 multimedia files
2. 47 images, 15 multimedia files
3. 127 images, 14 multimedia files
4. 121 images, 36 multimedia files
5. 2 images, 2 multimedia files
Total 17,130 images and 161 multimedia files
Black and silver computer tower with one hard disk drive, two external hard disk drives, one external hard drive and one Compaq laptop computer
1. 14,498 images, 60 multimedia files
2. 80 images, 6 multimedia files
3. 168 images, 3 multimedia files
4. 184 image files, 18 multimedia files
5. 4 image files

8 The respondent admitted to police that he had accessed and downloaded child pornography over a period of six to seven years, using search terms known to police to be commonly used to search for child pornography on the internet. The respondent admitted that he downloaded child pornography to “enjoy” it and that he views child pornography at least once or twice per week.

Sexual advances against a child

9 During the search of the respondent’s residence, a journal labelled “Memories Don’t Forget” was located, which clearly indicated that the respondent had been involved in a sexual relationship with a female under the age of 16 years who has been identified by the letter “C”.

10 The respondent admitted to police that the author of the journal was his “ex-girlfriend”, who was then 14 years old. They had recently broken up following a relationship of approximately 16 months. During their relationship, the respondent had sexual intercourse with his “ex-girlfriend” approximately 12 times, the first occasion being when she was 13 years and a few months before her 14^th birthday. Of those 12 occasions, one or two occasions involved multiple acts of sexual intercourse and oral sex. On at least one occasion, the respondent supplied his “ex-girlfriend” with alcohol with which they played “drinking games” before proceeding to have sexual intercourse. The respondent had also taken both digital video and still images of his “ex-girlfriend” and himself having sexual intercourse, which he had saved.

Subjective matters

11 The respondent was aged 25 years at the time of the sentence. He had no prior convictions. He was raised in a good, hard working family who migrated to Australia from Hong Kong but reports feeling neglected during his childhood. He was bullied at school making him increasingly withdrawn and isolated. He has no alcohol or drug problems and no psychiatric illness. He was in employment and lived with his parents and younger sister. The psychological evidence indicated that the respondent suffered from stunted psychological and psychosexual development and in relation to those matters had a notional age of 15 years. He was remorseful and the sentencing judge found that he was unlikely to reoffend if given ongoing counselling. He has undertaken this counselling at his own instigation. His prospects of rehabilitation have been assessed as good.

12 Ms Solomon, a forensic psychologist with Forensic Psychology Services in the Department of Corrective Services has assessed the respondent as “moderate to low risk category for sexual re-offending.”

13 The respondent is of above average intelligence, achieving a UAI of 83.5 in the Higher School Certificate in 2002. He attended the University of New South Wales for 3 years studying Mechanical Engineering and attained credit averages. However, he discontinued his study in 2006.

Remarks on sentence

14 The sentencing judge discussed the objective factors relevant to the different offences. In relation to the child pornography offences he said:

“The number of images and multi-media files on the offender’s computer are significant, representing the results of seven years collection. From the analysis carried out by the Federal Police very few represent the worst category of child pornography, those involving bestiality or sadism. But almost all involved individuals who must be assumed not to have the capacity to make informed choices about whether or not they engage in activities which may be degrading, humiliating or painful. In a number of cases, including Gent 162 A Crim R 29, courts have pointed out that the reasons why offences involving child pornography are regarded as so serious is that of necessity the creation of the images involves the exploitation of vulnerable people and imposing sentences for such offences general deterrence and a denunciation are important considerations. I wholeheartedly agree. It is well recognised that the courts must send a message to the community not only that those who create child pornography will be punished severely but those who consume it will also be punished, because without them there would be no market incentive for anyone to exploit the vulnerable children.
I have been referred to a number of cases where offenders have been dealt with for offences involving child pornography, and even if they fall within State rather than Commonwealth offences courts have invariably found that there is no realistic alternative to a custodial sentence and in most cases a sentence of full-time custody.
In this case I am prepared to find on the balance of probabilities that the offender used child pornography for his own personal reasons resulting from the subjective factors which I shall consider later. He had no intention of sharing them with others even though the software found by the police was capable of being used for that purpose. In the circumstances I would have to place both the child pornography offences at the lower end of the spectrum of seriousness for such offences, but at a level where there is no real alternative to a full-time custodial sentence.”

15 In relation to the offence against the young person his Honour said:

“From all the evidence, I conclude that C and the offender had known each other for some years before the sexual relationship began. Both their fathers were involved in the restaurant industry. C’s father employed the offender’s father as a chef in his restaurant, and the offender worked in the restaurant as a waiter, at first casually and after he discontinued his university studies on a much more regular basis. He met C at the restaurant. There was no suggestion that the offender had ever attempted to groom C for sexual activity, rather, on the balance of probabilities, I would find that while both were willing participants all the sexual activity between the two took place at the offender’s home which C regularly visited, truanting from school at times to do so. I infer from the statements made by the offender to various professionals, and from the journal kept by C, that she was often the initiator of sexual activity. At no time could I infer that she did not consent to the sexual activity with the offender. She willingly participated in drinking games and on one occasion had been the subject of images and videos of the two engaging in sexual intercourse.
Because of the age of C consent in law is not relevant but it must be considered for the purposes of sentencing. If it were not for the disparity in ages the relationship shows every indication of being the close and loving relationship between boyfriend and girlfriend on an equal basis. However, I cannot ignore the fact that at the time these offences began the offender was in his early twenties and C was within two months of her fourteenth birthday. Offences involving sexual activities with young people under the age of sixteen are regarded as serious because the law presumes that such people do not have the emotional maturity to be able to make informed judgments about activities which may have very serious consequences for them. Where it is shown to be the case that the victim of the offence is a truly vulnerable person exposed to a sexual predator, the offence is extremely serious, but I am not satisfied beyond reasonable doubt that is the case here.
As I have said, if it had not been for the age disparity it would be possible, particularly given the psychological and psychiatric evidence about the state of the offender’s maturity and the clear demonstration of C’s relative sophistication and maturity for her age, to regard the relationship as innocent. Nevertheless, I cannot regard what the offender did in this relationship as being entirely innocent because it was unlawful, the fact of which he was clearly aware, and of which he admitted being aware.
…”

16 The sentencing judge said with respect to the charges “it is clear that parliament regards all these offences as being extremely serious”. However, in relation to the child pornography offences his Honour said: “I would have to place both the child pornography offences at the lower end of the spectrum of seriousness for such offences, but at a level where there is no real alternative to a full-time custodial sentence.”

17 In relation to the sexual offences against a young person, his Honour said: “The offences, notwithstanding the young age of C, and the fact that on one occasion the two consumed a significant amount of alcohol before engaging in sexual intercourse, in my view the offences fall within the lowest range of seriousness for such offences.”

18 The sentencing judge made generally positive findings in relation to rehabilitation and risk of re-offending and made a finding of special circumstances.

19 His Honour was also mindful of the fact that the respondent had been in custody before sentencing. He was held in protective custody and because of his potential to take his own life he had been placed on suicide watch in appropriate accommodation.

20 The sentencing judge concluded that he could not be satisfied that any of the aggravating factors in s 21A of the Crimes (Sentencing Procedure) Act were relevant. His Honour provided a separate heading in his remarks for his discussion referred to as “discount.” He records that the prosecution did not dispute that the respondent was entitled to significant discounts for a number of reasons, which included that he pleaded guilty to all of the offences at the first available opportunity and with respect to the child pornography offences he cooperated with the authorities when they arrived at his residence, readily admitting to possessing the offending material. His Honour was satisfied that there was no evidence that the applicant intended to make the pornographic material available to anyone else. His Honour was also satisfied that the respondent had expressed remorse for this offence.

21 In relation to the sexual offences relating to C his Honour considered there were a number of additional factors in the respondent’s favour. His Honour concluded that neither the police nor anyone else would have had any idea that the offender had been in a sexual relationship with C unless he had admitted it during the execution of the search warrant when the police discovered the diary that she had given to him. He freely admitted to the police that he had had a sexual relationship with C, the time at which it started and the age that she was at that time.

22 His Honour was satisfied that the offender was entitled to a greater than usual discount in respect of both the child pornography offences and the sexual offences. His Honour indicated that in relation to the child pornography offences there would be a discount in the order of 35%. In respect of the sexual offences his Honour concluded that if he had decided to impose a custodial sentence the discount would be 40%. However, his Honour concluded that it was appropriate to mitigate the sentence in other ways and confined the sentence to a good behaviour bond.

23 The original Crown appeal contained one ground being that the sentences were manifestly inadequate. This was later amended to include the following five grounds:

Ground 1: His Honour erred in determining the objective seriousness of the child pornography offences.

Ground 2: His Honour erred in determining the objective seriousness of the sexual offences against a young person.

Ground 3: His Honour erred in failing to give proper regard to the factor of general deterrence in the sentencing process with respect to both sets of offences.

Ground 4: His Honour erred in giving too much weight to the subjective case of the respondent.

Ground 5: His Honour erred in imposing sentences that are manifestly inadequate.

24 In essence the Crown submitted that his Honour erred when identifying the objective circumstances of the offences and gave too much weight to the respondent’s subjective case. The Crown acknowledged that before it could make good the criticism of his Honour’s determination of the seriousness of the offences error must be demonstrated (House v The King (1936) 55 CLR 499).

25 In support of ground 1 in the Notice of Appeal it was submitted that when determining the seriousness of the offences his Honour had accepted as relevant the fact that the respondent used child pornography for his own personal reasons and that he had no intention of sharing them with others. The Crown emphasised that in R v Booth [2009] NSWCCA 89 this Court indicated that it was irrelevant to the offence that the person committing it did not further distribute the material and had no intention of disseminating it. If these further activities were involved in the offending there are separate offences provided by the Crimes Act (see s 91H(2); see also SKA v R [2009] NSWCCA 186 per Simpson J at [194]).

26 To my mind there is substance in the Crown’s submission. His Honour did have regard to the fact that the respondent maintained his collection of images for his own use and not for further distribution and has inappropriately diminished the seriousness of the offence. However, whether as a consequence this Court should intervene to impose a more severe sentence is another matter.

27 With respect to the sexual offences against C as is apparent from the extract from his Honour’s remarks on sentence at [15] above the sentencing judge described the way in which the relationship was formed concluding that it resulted from the respondent’s immaturity and need for affection. The Crown criticised this analysis by reference to the decision of this Court in R vWay [2004] NSWCCA 131; 60 NSWLR 168 and submitted that the respondent’s immaturity is not one of the factors which impinges upon the mens rea of the offender. I accept that in the sense contemplated in Way (at [86]). The emotional immaturity and motivations of an offender in the present circumstances may not impinge upon the mens rea of the offence. However, as his Honour was doing no more than considering the circumstances of the offence it was appropriate for him to make findings in relation to how the relationship was formed and its impact upon the victim.

28 The sentencing judge was presented with a difficult sentencing exercise. As I have indicated this Court has been careful to identify principles which are appropriate when sentencing in cases of child pornography. Regrettably with the advent of the internet this type of offending has significantly increased and the misery and harm which it causes to others will also have increased. The offences are serious and, as his Honour identified, will in most cases require a custodial sentence.

29 The Crown was critical of his Honour’s description of the content of the computer files which the respondent maintained. It was submitted that his Honour inappropriately diminished the depravity involved. I have included the relevant passage from his Honour’s remarks at [14] above. I have no doubt that his Honour carefully chose the words by which the images were described and I am satisfied that his Honour did not diminish the breadth or apparent depravity of the images noting that some, although a tiny fraction of the whole, depicted bestiality or sadism and there were a few images of homosexual activity between males.

30 The sentences which his Honour ultimately imposed for the pornography offences were significantly ameliorated by the subjective factors which his Honour identified. As I have previously indicated these matters were separately stated and were not utilised by his Honour to diminish the respondent’s culpability. Although the resulting sentences were relatively modest I am not persuaded that they are of a level which requires the intervention of this Court.

31 The sexual offending with C raises different considerations. The respondent was 22 years of age when the relationship commenced and C was 13 years of age. Notwithstanding the fact that his Honour found that the relationship was consensual and there was no evidence that C had been damaged by it the law has provided a range of offences to protect young persons, who without appreciating it, may be vulnerable to the sexual advances of others. Our community has indicated through the Parliament that such relationships are forbidden and if they occur the older person will be severely punished. It may be that if the offender was of a significantly younger age than that of the respondent at the time of the offences a more benign attitude would be appropriate. In my view this was a serious offence which warranted a custodial sentence in addition to the sentences imposed for the pornography offences. In sentencing as he did I am satisfied that his Honour both failed to categorise the offending at the appropriate level and allowed the respondent’s subjective circumstances to inappropriately influence the sentencing outcome.

What should this Court do?

32 Because this is a Crown appeal this Court must exercise its functions having regard to s 68A Crimes (Appeal and Review) Act 2001 which came into effect on 24 September 2009. Although the court retains a discretion with respect to Crown appeals the principle of double jeopardy is no longer relevant (see R v JW [2010] NSWCCA 49 at [92], [95], [141], [205], [209]).

33 Having identified an error in the sentencing process this Court is required to consider whether it should intervene or whether in the exercise of its discretion the appeal should be dismissed. The Court must consider not only the particular offences but also all of the circumstances of the respondent at the time of considering this appeal.

34 The respondent was taken into custody on 10 December 2008, was not released on bail and accordingly remained in prison until he was sentenced. The circumstances in which he did not obtain bail are not apparent. However, the effect of the sentencing judge’s orders was that the respondent was ordered to be released to parole on the day that he was sentenced. Upon his release he went to live again with his family. For a time he mostly stayed at home. When he went out he was scared and afraid that people would recognise him and that he would be publicly shunned. He said that he reacts with the shivers every time he sees a police car. He said that “he felt lost.” After a period and having developed a sense of directionlessness about his life he decided to take positive steps to enable him to take a place in society. He found employment as a waiter and says that his life is now more fulfilled. He said that he now wants to further his studies and has signed up for a web design course at TAFE and he seeks to pursue studies in that area. He said that he is conscious of the debt he owes to his parents who have supported him throughout his ordeal and seeks to earn monies in order to redress that situation.

35 The respondent gave evidence of the psychological counselling he has been receiving. He said on the day after his sentence hearing he went to the Parole office and put his name down to seek the assistance of a Parole officer. An officer was not available for some weeks after which he was told that he would have to take a course to help him with his sex offending. He is currently waiting for assignment to such a course.

36 Because the respondent was not assigned a psychologist from the State he decided to seek private assistance. He has been seeing a private psychologist who has been helping him with advice about his life, family and issues of self esteem and developing maturity.

37 In his affidavit the respondent expressed significant remorse both towards C’s parents and his own family. As I have indicated his evidence was not challenged and there can be no doubt his remorse is genuine.

38 At the sentence hearing evidence was given to the sentencing judge of the circumstances in which the respondent had been required to serve his period in custody. For any person the circumstances were arduous being confined to a small cell with little access to other persons and limited opportunities for exercise. Given his age, personality and the nature of his offence it is apparent that if he was now to be returned to custody his incarceration would be significantly more onerous than for the ordinary prisoner.

39 Notwithstanding the serious nature of the offences and my view that the sexual relationship offences required a sentence of imprisonment I am satisfied that this Court should not intervene. The respondent has already spent a period in full time custody and given his personal circumstances that punishment has been more severe than it may have been for others. Upon his release he has taken it upon himself to pursue activities and seek assistance which will enable him to develop into a mature and responsible adult. If he was now returned to prison his progress towards effective rehabilitation would be interrupted. Although the respondent is an adult and must be sentenced as such, his emotional immaturity at the time of the offending distinguish him from the ordinary case where an adult becomes involved in a sexual relationship with a young person in which event both personal and general deterrence are of greater significance than in the present case.

40 In my opinion the appeal should be dismissed.

41 SIMPSON J: I agree with McClellan CJ at CL.

I agree with McClellan CJ at CL.

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