R v Neville

[2018] NSWCCA 125

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Neville [2018] NSWCCA 125
Hearing dates:	14 May 2018
Date of orders:	22 June 2018
Decision date:	22 June 2018
Before:	Beazley P, Button and Fagan JJ
Decision:	Allow the appeal. The aggregate sentence for counts 1A and 1-5 imposed by his Honour Judge Ingram SC on 16 February 2018 is quashed. In lieu thereof for the offences in counts 1A and 1-5 the respondent is sentenced to an aggregate term of imprisonment comprising a non-parole period of 10 years commencing on 4 May 2017 and expiring on 3 May 2027 and a balance of term of 5 years commencing on 4 May 2027 and expiring on 3 May 2032.
Catchwords:	CRIMINAL LAW – Crown appeal against sentence – adequacy of sentence – sexual intercourse with child under 10 years, using a child for pornographic purposes and possession of child pornography contrary to Crimes Act 1900 (NSW), s 66A, 91G, 91H – complainants were daughters of offender under his parental authority and care – plea of guilty for charge of possession of child pornography – found guilty after trial on other charges – where no remorse nor acceptance of responsibility demonstrated – whether sentence manifestly inadequate – whether “special circumstances” within meaning of Crimes (Sentencing Procedure) Act 1999 (NSW), s 44 – appeal allowed and offender resentenced
Legislation Cited:	Crimes Act 1900 (NSW) s 91H(2), s 91G(1)(a), 66A Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A, s 9, s 44
Cases Cited:	Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54
Category:	Principal judgment
Parties:	Regina (applicant) Neville (a pseudonym) (respondent)
Representation:	Counsel: N J Adams (applicant) A Francis (respondent)   Solicitors: Solicitor for the Director of Public Prosecutions (applicant) Bayside Lawyers (respondent)
File Number(s):	2012/029715; 2014/181274
Publication restriction:	No
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: Not published Date of Decision: 16 February 2018 Before: Ingram SC DCJ File Number(s): 2012/029715; 2014/181274

Judgment

1. THE COURT: The Crown appeals against an aggregate sentence passed on the respondent by his Honour Judge Ingram SC in the District Court on 16 February 2018. The sole ground is that the sentence is manifestly inadequate. The Notice of Appeal was filed and served on 8 March 2018. Having regard to the nature of the offences and the need to protect the complainants from identification, the respondent is referred to in the title of this judgment by a pseudonym.

2. The sentence was for three offences of sexual intercourse with a child under 10 years and three offences concerning child pornography. The respondent had pleaded guilty to one count of possession of child pornography (count 1A). He was convicted of the other offences after a trial of several weeks in September, October and November 2017. An aggregate sentence of 13 years imprisonment including a non-parole period of 8 years and 6 months was imposed. This was ordered to commence from 4 May 2017, to allow for periods of pre-sentence custody.

3. His Honour nominated indicative sentences as set out below. The maximum penalty for each offence, applicable at the date of offending, is stated in brackets. No standard non-parole periods applied to any of the offences at the respective dates on which they were committed. Accordingly his Honour was not obliged to state a non-parole period in association with any of the indicative sentences. The respective counts and penalties were as follows:

1. Count 1A, possession of child pornography contrary to s 91H(2) of the Crimes Act 1900 (NSW): 11 months. (The maximum penalty for this offence changed during the charge period from 5 years to 10 years. The Crown accepted that the applicable maximum was 5 years.)

2. Count 1, using a child under 14 years (namely, 18 months old) for pornographic purposes contrary to s 91G(1)(a): 3 years (maximum 14 years).

3. Count 2, using a child under 14 years (namely 3 or 4 years old) for pornographic purposes contrary to s 91G(1)(a): 3 years (maximum 7 years).

4. Count 3, sexual intercourse with a child under 10 years (namely 3 or 4 years old) contrary to s 66A: 8 years (maximum 20 years).

5. Count 4, sexual intercourse with a child under 10 years (namely 3 or 4 years old) contrary to s 66A: 7 years (maximum 20 years).

6. Count 5, sexual intercourse with a child under 10 years (namely 4 years old) contrary to s 66A: 8 years (maximum 20 years).

Objective circumstances of offending

4. The facts of the offences can best be considered chronologically although this is not the order of the charges on the indictment. The respondent was born in 1977. In 1998, at age 21, he was living in a de facto relationship with his then partner aged 17 years. In 1998 his partner gave birth to their first child, a daughter who will be referred to in these reasons by the pseudonym “Ruth”. A second child was born one year later.

5. Between 1 July 2001 and 31 January 2003 Ruth was aged from 3 to 4 years. In this period the family were living together in a two bedroom house. On one night during this period the respondent took Ruth from her bedroom to a detached garage, laid her face down on sofa cushions on the floor, tied her hands around a pole and anally penetrated her with his penis (count 3).

6. On another day in the same period the respondent took Ruth from her bedroom to his own bedroom and put his penis in her mouth (count 4).

7. Also in the same period, on a separate occasion, the respondent took Ruth from her bedroom to another room in the house, removed her clothes and photographed her naked (count 2).

8. One night later in 2002, when Ruth was 4 years old, the respondent again took her from her bedroom to the garage, placed her face down on sofa cushions on the floor, tied her hands around a pole and anally penetrated her with his penis (count 5).

9. The respondent’s relationship with his de facto partner broke down during 2003 and they separated. He commenced a relationship with a second partner in 2007 and had two children by her, the first of whom was a daughter who will be referred to in these reasons by the pseudonym “Therese”. Therese was born in 2008. At some time when she was between 12 and 18 months old, between mid-2009 and about mid-2010, the respondent took 7 photographs of her genitalia, with her legs spread open and in some cases close up. He stored these images on a computer and they were discovered nearly two years later, in 2011 (count 1).

10. A computer owned by the respondent between 1 January 2008 and 16 September 2010 had on it 12 images of naked pre-pubescent girls aged between 8 and 12 years being subjected to penile-anal intercourse with an adult male. It is not alleged these victims were related to the respondent. In accordance with the classification of such material by the Child Exploitation Tracking Scheme (“CETS”), these images were in category 4 (count 1A).

11. His Honour received and took into account victim impact statements from each of Ruth and the mother of Therese.

The respondent’s subjective background

12. The respondent was aged about 25 years when he committed the above-described offences against his 3-4 year old daughter Ruth. He was 32 years old when he committed the offence (in count 1) of photographing the genitalia of Therese, aged 18 months, and he was at about the same age when he was in possession of the CETS category 4 images of pre-pubescent girls suffering anal intercourse. He is now 41.

13. The respondent did not give evidence on sentence. The learned sentencing judge was reliant, as is this Court, upon scant information about the respondent’s personal background. That information is in hearsay form as provided by him to a Community Corrections officer for the purposes of a pre-sentence report. From that source it appears the respondent was raised by adoptive parents, educated to year 10 and left home at 17. Since then the respondent has been employed in relatively low-skilled positions during his adult life.

14. The respondent says he has had no further contact with his parents since leaving home. He also asserts that they were physically and verbally abusive toward him during his teens but it is not possible to attach any significance to this in the absence of evidence on oath. Neither his Honour nor this Court has any reliable evidence concerning the degree and effect of the alleged abuse. His Honour was not satisfied on the balance of probabilities that such abuse had occurred or had contributed to the offending.

15. His Honour accepted that the respondent suffers lower back pain and hip discomfort which restrict his mobility. In his Honour’s words these symptoms are “likely to result in the Offender finding any custodial sentence more difficult to serve than would be the case for an inmate not experiencing such health issues”. Justice Health reports tendered to his Honour showed that a computed tomography (“CT”) scan in mid-2017 revealed opacity in the upper lobe of his left lung. This was not evident on a repeat scan in November 2017 but there were findings at that date of mildly enlarged lymph nodes. Justice Health proposed follow-up chest CTs and monitoring by a respiratory physician. The respondent is also treated for gastro-oesophageal reflux disease and bipolar affective disorder. Evidence before his Honour satisfied him that anxiety concerning these conditions and any adverse development of them would contribute to greater than usual difficulty in serving a custodial sentence.

16. The evidence before the learned sentencing judge did not establish when or with what degree of severity the respondent had commenced to suffer from bipolar affective disorder. His Honour said:

Whether the Offender had been suffering from bipolar disorder at the time of the offences against [Ruth] was not a matter which was developed further during the trial or on sentence in a manner which now warrants any amelioration of findings of moral culpability. … Such evidence would normally be expected to be found in the sentence proceedings. It might have been led in the trial, but absent that it was certainly open to have that evidence led in the sentence proceedings, and yet no such evidence was led.

17. The respondent was convicted in December 2013 (at age 36 years) of possessing child abuse material. He had over 100 sexually posed and provocative images of pre-pubescent girls aged between 6 and 12 years plus 14 images of a girl of between 12 and 15 years posed naked and in a sexually suggestive manner. For the possession of that material he was placed on a bond of 2 years under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Community Corrections reported that he completed his supervision under this bond “without issue”.

18. The respondent has maintained his innocence of the counts upon which he was tried. Even with respect to count 1A he asserted, on sentence, that whilst he had pleaded guilty to possession of the CETS category 4 material, he held it only for the purpose of “naming and shaming” purveyors of child pornography. His Honour understandably rejected this explanation. The plea of guilty to count 1A was entered very belatedly, after the respondent had been convicted of the offence in an earlier trial and after the conviction had been quashed. His Honour allowed a discount of 5% in arriving at the indicative sentence for this count.

19. It is clear that the respondent has shown no acceptance of responsibility, remorse or insight in relation to any of the offences. He was assessed in the pre-sentence report as at a medium to high risk of reoffending. The learned sentencing judge was “not satisfied that it is appropriate to make a positive finding that the Offender is unlikely to reoffend”. His Honour concluded that the material before him constituted “some basis upon which the Court should entertain reservations about the Offender’s prospects for rehabilitation” but he did not consider that an affirmative finding of poor prospects was justified.

20. His Honour found special circumstances to justify reducing the default ratio between the non-parole period and balance of term, pursuant to s 44 of the Crimes (Sentencing Procedure) Act. A non-parole period of 65.3% of the aggregate head sentence was fixed. The special circumstances identified by his Honour included that this is the first custodial sentence he has been required to serve, commencing at the age of 40 years, and that his medical conditions will create some degree of hardship in prison. His Honour also took into account that the respondent would benefit from a longer period on parole. That consideration was arguably not appropriately engaged because the aggregate sentence his Honour arrived at involved a period of 4 years and 6 months on parole. Supervised parole by Community Corrections will commonly not continue beyond 3 years.

Principles applicable to a Crown inadequacy appeal

21. The question on a Crown appeal such as this, where no specific or explicit error of sentencing is said to have occurred, is whether the sentence imposed was “plainly unjust”: Dinsdale v R (2000) 202 CLR 321; [2000] HCA 54 at [6] (Gleeson CJ and Hayne J) and [22] (Gaudron and Gummow JJ). Whilst the claim of manifest inadequacy does not depend on the establishment of specific error, the Crown’s submissions sought to identify within the primary judge’s Remarks on Sentence possible bases from which inadequacy of sentence may have arisen. This included consideration of whether any of the indicative sentences were manifestly inadequate. Whilst it is the aggregate sentence which is the subject of appeal it is appropriate to consider possible sources of error in the primary judge’s conclusions and reasoning, including with respect to the seriousness of individual counts, in order to determine whether the end result may be manifestly inadequate.

Consideration

22. Each of the two offences involving penile-anal penetration (counts 3 and 5) was an act not only of appalling sexual depravity but of considerable physical cruelty, including the child being tied up by her hands around a pole when the act was performed. The very young age of the victim contributes to the gravity of each of these offences, as does the fact that the respondent was the child’s father, her principal protector and carer. In the absence of acknowledgement of the crime, let alone remorse for it, and with no significant mitigating circumstances present, his Honour’s indicative sentences of 8 years imprisonment on each of these two counts were manifestly inadequate. Indicative head sentences of 11 years on each count would have been appropriate.

23. The indicative sentence of 7 years for count 4 was also manifestly inadequate. This offence, involving fellatio on his 3-4 year old daughter, would attract a marginally shorter term than counts 3 and 5, to reflect a lower degree of physical cruelty and pain inflicted. A head sentence in the order of 9 years and 6 months was appropriate.

24. Each of counts 3, 4 and 5 was of considerably greater objective seriousness than any of the offences against s 66A which were under consideration in the sentencing decisions cited to this Court on the hearing of the appeal. The present case also differs from the cases cited by reason of the unusual lack of any significant mitigating circumstances in the offender’s background and for his failure to express remorse or to demonstrate a willingness to face up to his own wrongdoing and to seek psychological help.

25. His Honour’s indicative sentence of 3 years for count 2 (taking pornographic photographs of Ruth at 3-4 years of age) is a reasonable reflection of the gravity of the offence, against the background of the respondent’s very weak subjective case. The indicative sentence could be regarded as quite stern in light of the then applicable maximum of 7 years. There was no evidence that the respondent exhibited or transmitted the photographs to any other person. His taking them was, in those circumstances, a manifestation of his deviant sexual interest in the child.

26. The Crown submitted that his Honour’s indicative sentence for count 1 (using his second daughter Therese for pornographic purposes) should be seen as inadequate because by the date of this offence Parliament had doubled the maximum penalty to 14 years, yet his Honour nominated the same indicative term as for count 2 when the maximum was half that. Objectively the only notable difference between the two offences is that, in count 1, Therese was photographed at the age of about 18 months, compared to Ruth’s age of 3-4 years at the time of count 2. Doubling of the maximum penalty would not lead to doubling of the sentence for an otherwise substantially equivalent offence. We do not consider that this indicative sentence was below the range open to his Honour. However, in contrast with the indicative sentence for count 2 it was relatively lenient, considering the increase in the maximum.

27. The indicative sentence for count 1A (11 months) was in the Court’s view adequate, measured against the maximum of 5 years which the Crown accepted as applicable. Against the current maximum of 10 years a significantly higher sentence would be required for an equivalent offence.

28. In arriving at an aggregate sentence there was required some degree of notional accumulation between the sentences for the three most serious offences (counts 3, 4 and 5) because they occurred on discrete occasions over a period of months. Further notional accumulation for count 2 was not required upon the consideration of totality. Count 2 was of a different kind from the other three offences perpetrated against Ruth. The sentences for counts 3, 4 and 5 would necessarily be so heavy that the sentence for count 2 should be concurrent to avoid excessive punishment for the totality of offending against this child.

29. The aggregate sentence should have involved some further notional accumulation for counts 1 and 1A, both as between themselves and between them and counts 2-5. Counts 1 and 1A involved two further discrete episodes of offending, additional to the course of events in counts 2-5.

30. The manifest insufficiency of the indicative sentences for the most serious of the offences has in our view led to the aggregate being inadequate. The Crown has expressly disclaimed any attack on his Honour’s finding of special circumstances. The Crown accepted that if this Court should uphold the appeal and proceed to resentence the respondent, the ratio of the non-parole period (65% of the head sentence) as adopted his Honour would appropriately be maintained. The Court will accede to that concession despite misgivings as to whether the respondent’s circumstances were relevantly “special” in a degree which would warrant reduction of the ratio to 65%.

31. The Crown has satisfied the Court that the residual discretion to refrain from interfering should not be exercised. The offending was against the most vulnerable of victims and was of a kind for which the community through its representatives in Parliament has expressed abhorrence, marked by the high maximum penalties which attached to the offences at the time they were committed. Of the various purposes of sentencing prescribed in s 3A of the Crimes (Sentencing Procedure) Act, the need for effective denunciation, particularly, is not sufficiently addressed in the aggregate sentence his Honour passed.

Orders

32. In our view the appropriate aggregate head sentence is imprisonment for 15 years. In accordance with the Crown’s acceptance of the learned sentencing judge’s finding of special circumstances, the non-parole period of this aggregate sentence should be 10 years.

33. For these reasons the Court orders:

1. Allow the appeal.

2. The aggregate sentence for counts 1A and 1-5 imposed by his Honour Judge Ingram SC on 16 February 2018 is quashed.

3. In lieu thereof for the offences in counts 1A and 1-5 the respondent is sentenced to an aggregate term of imprisonment comprising a non-parole period of 10 years commencing on 4 May 2017 and expiring on 3 May 2027 and a balance of term of 5 years commencing on 4 May 2027 and expiring on 3 May 2032.

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Decision last updated: 22 June 2018