R v PN
[2008] NSWDC 353
•16 December 2008
CITATION: R v PN [2008] NSWDC 353
JUDGMENT DATE:
16 December 2008JURISDICTION: District Court of New South Wales JUDGMENT OF: Cogswell SC DCJ DECISION: Overall sentence of 15 years. Non-parole period of 10 years. CATCHWORDS: Criminal law - Sentence - child sexual offences - possess child pornography - disseminate child pornography - use carriage service to procure or groom children - sexual intercourse with a child - plea of guilty - report from forensic psychiatrist - victim impact statement - propects for rehabilitation - remorse - good character LEGISLATION CITED: Crimes Act 1900 s66C(1) s66C(3) s61M(1) s91A(2) s91H(3)
Crimes (Sentencing Procedure) Act 1999 s32
Criminal Code Act 1995 (Cth) s474.26(1)
Crimes Act 1914 (Cth) s16B(a)CASES CITED: R v Gent [2005] NSWCCA 370
R v Cook; ex parte Attorney-General (Qld) [2004] QCA 469
R v Jones (1999) 108 A Crim R 50
Tector v R [2008] NSWCCA 151PARTIES: R
PNFILE NUMBER(S): 2008/13522; 2008/13523; 2003/13705 COUNSEL: Mr Crawford-Fish (def) SOLICITORS: Mr Brown (NSW DPP)
JUDGMENT
1. PN is not a career criminal. He has a couple of minor offences on his record which he committed in his early twenties and a more recent low range prescribed concentration of alcohol. He has had a relatively normal childhood with no major traumatic incidents. However, commencing about six years ago, he allowed his life to spiral down into a period of sustained and depraved criminal behaviour. The criminality involved in the multiple crimes which he committed is almost overwhelming. There will be a need to impose harsh sentences because of the extent of the criminal behaviour which he has engaged in.
2. Some cases involve an offender possessing child pornography. They are very serious offences and Parliament has fixed a maximum of five years imprisonment. Other cases involve disseminating child pornography. Understandably those offences are regarded as more serious and Parliament has fixed a maximum of ten years imprisonment. PN engaged in both. Some offenders use the Internet to procure or groom children, to engage them in personal contact. The children are obviously vulnerable victims and at risk. PN engaged in this conduct. More seriously, other offenders, having procured their victims over the Internet, actually engage them in sexual activity involving physical violence and personal sexual abuse of children. PN engaged in this activity. Parliament regards it as a serious offence to sexually assault a child in special care. It has fixed a maximum of eight years imprisonment to such a crime. PN did this. Parliament has fixed a ten year term of imprisonment to offenders who sexually interfere with children aged between fourteen and sixteen years. PN has done this. Parliament has fixed a maximum of sixteen years imprisonment for offenders who have sexual intercourse with a child who is under fourteen years of age. PN has done this. Each of the kinds of offences which I have referred to is serious. Almost all of them, if not all, would attract a custodial sentence. PN has committed all of these offences and, in most cases, not just once but on multiple occasions. He has committed multiple serious crimes and these crimes have produced multiple victims.
3. First I should formally list the crimes which he has been charged with. I add, before listing those crimes, that PN was arrested for them on 18 May 2007 and has been in custody since then on these matters alone. I also indicate that he has pleaded guilty to all the crimes that I am sentencing him for and in due course I will refer to that and make allowance for that plea of guilty.
4. Returning to the list, these are the crimes that he has been charged with, that he has pleaded guilty to and of which I now formally convict him. He has committed four counts of sexual intercourse with a person above the age of ten years and under the age of fourteen years. The victim in each case was AW. They are offences against s 66C(1) of the Crimes Act 1900. Each of them carries a maximum penalty of sixteen years imprisonment. In respect of one of those offences against AW, I will take into account under s 32 of the Crimes (Sentencing Procedure) Act 1999 two additional charges to which PN has pleaded guilty and which he has asked me to take into account in sentencing him on one of those four offences. The two additional charges are sexual intercourse with a person under fourteen years of age and over ten, once again AW, contrary to s 66C(1) of the Crimes Act and aggravated indecent assault on AW contrary to s 61M(1) of the Crimes Act. I will take those matters into account when I am sentencing PN for one of those offences and I have signed the form under s 32 of the Crimes (Sentencing Procedure) Act accordingly.
5. Next he is charged with one count of using a carriage service to procure a person under sixteen for sexual activity. Once again the victim of that offence was AW. She was then aged thirteen years. That is an offence against s 474.26(1) of the Criminal Code Act 1995 of the Commonwealth and carries a maximum of fifteen years imprisonment.
6. Next PN is charged with three counts of possessing child pornography. That is an offence against s 91H(3) of the New South Wales Crimes Act. It carries a maximum of five years imprisonment. In respect of one of those offences, PN has asked me to take into account under s 32 of the Crimes (Sentencing Procedure) Act, no fewer than thirty-eight additional matters, all of which are the same offence of possessing child pornography. In due course I will take those matters into account when I sentence him in respect of that one matter and I sign the form accordingly.
7. Next PN is charged with sexual intercourse with a child under special care, who is over sixteen and under seventeen. The victim in that case is BB, his own stepdaughter. That is an offence under s 73(1) of the New South Wales Crimes Act and carries a maximum of eight years imprisonment.
8. Next he is charged with two offences against s 66C(3) of the New South Wales Crimes Act. They are offences of having sexual intercourse with a person who is fourteen but under sixteen years of age. The two victims in that case were TZ, who was fifteen years of age, and again BB, who was then fourteen years of age. Those offences each carry a maximum of ten years imprisonment.
9. I here add to remind all those present in the court that any reference to the name of a victim of any of the offences and any reference to PN’s surname outside this court - any publication of that detail or any information which may be able to identify a victim - will be an offence under law.
10. Next PN has been charged with a further offence against s 474.26(1) of the Criminal Code Act of the Commonwealth of using a carriage service to procure a person under sixteen years for sexual activity. The victim in that case was a girl named BC who was fifteen. As I said that carries a maximum of fifteen years imprisonment.
11. Next PN was charged with another offence under the Criminal Code Act of the Commonwealth, namely using a carriage service to make it easier to procure for sexual activity, an offence known as grooming. The victim in that case was MD, aged fifteen and it carries a maximum penalty of twelve years imprisonment. In respect of that offence, I take into account five further offences against the same law, involving five additional victims, namely SN, LF, RM, CG and JW. Each of those offences is listed on a form under s16B(a) of the Crimes Act 1914 of the Commonwealth and in due course I will take those additional matters into account when I have signed that form.
12. Finally PN has been charged with the offence of disseminating child pornography. That is an offence against s 91A(2) of the New South Wales Crimes Act and carries a maximum of ten years imprisonment. Once again, he has asked me to take into account, additional offences against the same law. On the form under s 32 of the Crimes (Sentencing Procedure) Act, there are no fewer than thirteen additional offences which I am asked to take into account and which I will take into account when sentencing him for that matter and I sign the form at this stage.
13. It is now necessary to fill in some detail regarding these crimes. The details of the crimes are agreed by the parties and are part of exhibit A in the proceedings. I do not propose to summarise in great detail because the detail is contained in the exhibit but it is necessary for the public record to note some of the important features of these crimes.
14. The description starts with the first crimes which I referred to which are the offences involving the victim AW, which are counts 1 to 4 of sexual intercourse with a person between ten and fourteen and using a carriage service to procure sexual activity. AW lived at relevant time on the Central Coast. PN at the relevant time lived on the South Coast. Police received information regarding a possible offence on 11 May 2007. Their investigation produced the following facts about the offences concerning this victim which I now find occurred.
15. The victim established a personal profile on an internet chat site. PN made contact with her through that site. He called himself “Sweet Cash Man”. In communicating with her via the internet, he attempted to convince her to leave home with him and to live in Sydney. PN was fully aware of the fact that the person he was dealing with was a thirteen-year-old girl. There were exchanges such as the following. The victim disclosed that she was thirteen and asked whether it bothered PN. He replied to the effect that he was happy with her age and willing to help with finances if she left. He said “Would you be able to spend the night in a motel with me?” PN suggested the prospect of him and another man both having sex with this thirteen year old girl at the one time. He suggested that he may fall in love with her and might even marry her some day. He suggested, asked her whether she was willing to do both men at once and asked her whether she had tried anal intercourse. He said “Thanks Angel, it’s called double penetration. One of us will be in your pussy while the other one will be in your arse”. When confirming her age, he said “That’s so cool” and then indicated that she would be “the youngest girl I’ve ever fucked”. They exchanged mobile phone numbers and the victim agreed to be picked up near her school on 8 May 2007.
16. PN picked her up and took her from the Central Coast to Sydney. He had disguised his registration plates. They went to a motel at Westmead. They went up by the back entrance in order to avoid being identified on CCTV footage. They purchased food and cigarettes and returned to the motel room. PN began rubbing her vagina. He had penile vaginal intercourse with her and ejaculated inside her. He told her to have a shower. She did this. In the shower he rubbed her breasts with the palms of his hands. After the shower, he digitally penetrated her vagina. He then put his erect penis into her mouth. They then had penile vaginal intercourse once again whilst he ejaculated inside her. The next morning they woke early and once again he had penile vaginal intercourse with her. He dropped her off at Mt Druitt at a shopping centre, saying that he would be in contact with her in a week. The victim spent the night in a nearby park.
17. The following day, 10 May 2007, she spoke with police. The police attended PN’s home on 18 May 2007 with a search warrant and arrested him on that day. They then found a number of compact floppy discs, a computer hard drive and other items. He was interviewed and confirmed the activity which had occurred between him and AW to some extent, although he denied any physical contact with her. When told that he would be charged, he admitted to consensual sexual intercourse with her in the morning only. He then made full admissions confirming that he knew that she was aged thirteen.
18. When police examined some of the items they seized from PN’s house, they found that thirty-eight of the compact discs contained files, both video and still images, of child pornography, depicting nudity and erotic posing of children, sexual activity between adults and children, penetrative sexual activity including vaginal, anal and oral between adults and children aged from approximately two years, including images of bondage and bestiality. Police estimated there were in excess of 10,000 images and video files of child pornography located on the discs.
19. The computer, when it was forensically examined, was found to contain just over 1300 images. Some included females and males as young as two or three years old and up to about fourteen or fifteen, depicted in sexual positions with adults and children of the same and opposite sex. There were images of penetrative sexual acts between adults and young children. There were also a hundred movie files depicting child pornography, including children of varied ages, including some penetrative sexual acts performed on and by children. In another computer seized, they found a hundred images relating to child pornography. Further investigations indicated that PN had been identified as using names such as “Sweet Cash Man” and “Aussie Sugar Daddy” and email addresses including the name “Dangerous Liaisons 69”.
20. The facts which I have found so far relate to the offences involving AW and some of the offences involving possession of child pornography. I now go on to detail the facts and make the findings regarding some of the other offences. PN met KB his now wife in late 1991 or early 1992. They married in 1995. KB had two children to a previous relationship. PN and his wife KB had four additional children together. They were born between 1993 and 1998. The eldest child - who was KB’s daughter from a previous relationship -was BB. She was born in 1989.
21. In around 2002, PN commenced a sexual relationship with BB. In fact the relationship commenced on 29 December 2001 and concluded on 31 January 2007. She was aged between twelve and seventeen. The sexual relationship involved BB regularly performing fellatio on PN. There were references on his computer to him referring to BB as his daughter. He communicates with somebody else about her. That person asked whether PN any photographs. He replied, “Not many. One giving me head and another naked holding a sign saying “My daddy is Billy Bob 69”. In another communication, PN said that his step-daughter gave him head from when she was aged twelve. There did in fact exist a photograph which was taken of the victim BB holding a sign while she was partially naked saying something to the effect of “My daddy is Billy Bob 69.” PN sent that photograph by the Internet to somebody else. To another person he sent twelve images of a person he described as his daughter. In fact as part of the search, police found an image depicting BB performing fellatio on PN and another one which I described previously where she was lying on her back naked from the waist down, holding up a sign that read “Hi friends of Bill Bob 69 (my daddy).”
22. Briefly, regarding the additional charges on the Commonwealth form concerning using carriage service for the purpose of grooming, SN was aged fourteen at the time of the offence and PN commenced discussing topics of a sexual nature after making contact with her. He suggested they meet in person. He talked about a competition to see who could be the first of the two of them to make a girl come to orgasm.
23. Regarding the victim LF, he again made contact with her through an Internet chat site. After suggesting that they meet in person, LF told PN that she was busy with school and church. He followed that by sending her more than fifty messages containing material of a sexual nature.
24. Concerning RM, once again he made contact with her through an Internet chat site. They exchanged over 300 messages and voice calls after exchanging phone numbers and talks about material of a sexual nature.
25. Regarding CG, he also made contact with her over an Internet chat site, asking her questions of a sexual nature. He asked her whether she was prepared to meet him after school.
26. Regarding JW, he also made contact with her through an Internet chat site and suggested meeting her after asking questions of a sexual nature.
27. I now turn to the offence of having sexual intercourse with a person under sixteen, namely TZ. This involved also contact with a victim named BC. PN and BC began communicating over the Internet. He asked her if she would have sex with him. She said she didn’t know. He suggested a threesome. He persisted with his questions about whether she wanted to have sex with him. They exchanged nearly 300 text messages and forty voice calls over their mobile phones. PN met BC on three occasions towards the end of 2006. On these occasions she was accompanied by her friend TZ. Both girls were fifteen. PN knew that they were missing school when they met. At one stage PN was asked by the girls if he would help them get alcohol after school.
28. PN also exchanged messages with BC’s friend TZ. Once again, over 400 text messages and about twenty voice messages were exchanged. He picked her up from her high school. In September 2006 they went to a car park. They got into the back. He had penile vaginal intercourse with the fifteen-year-old TZ in the back of the car.
29. Regarding BC, PN was charged with the offence which I have referred to, of using a carriage service to procure her.
30. Turning to the use of the carriage service to groom a victim namely, MD, she was fifteen at the time. They made contact via the Internet. PN has identified himself with an email address “Dangerous Liaisons 69.” They exchanged mobile phone numbers. Over August and September 2006 they exchanged over 300 text messages and seven voice calls. He sent text messages of a sexual nature. She reminded him of her age. He replied, “Yeah I know, give it time whenever you are ready.”
31. Turning finally to the offences of disseminating child pornography, the charge which he is being sentenced for involved him disseminating 157 images depicting child sexual exploitation by sending them over the Internet. They range from photographs of children posing in a semi-naked state to photographs of adults having sexual intercourse with children.
32. As I have said, there are thirteen additional offences which involved PN distributing or disseminating respectively on each occasion the following number of images: thirty-seven images, thirty-four images, eight images, twelve images, three images, fifty-three images, forty-eight images, thirty-two images, eight images, forty-two images, 120 images and thirty-eight images. Most of them involved images of children ranging from a state of provocative undress through to having sexual intercourse with adults.
33. That completes the brief description of the facts which I find amounted to the crimes committed by PN.
34. Mr Crawford-Fish who appeared for PN called PN’s wife, KB as a witness. She gave evidence about the difficult circumstances in their relationship around the time that PN commenced his relationship with her daughter BB. She said that there was a very difficult time in their marriage when she had ceased working and was at home looking after the six children. She had two breakdowns and there was a lot of pressure on PN financially to support the whole family. Their relationship was very strained and she did not realise what he was doing when he was spending so much time on the computer.
35. BB complained to her in January 2007 regarding what PN had been doing with BB. BB indicated that she had forgiven PN. At that stage PN and KB had been separated for some time and she confronted him with the allegations which he denied. Neither BB nor KB took the matter to the police at that stage and it was not until, as I said, 18 May 2007 that PN was arrested after he had sexual intercourse on the number of times I have mentioned with AW. He also continued his possession of child pornography and some of the dissemination of the child pornography in that period.
36. KB indicated that her husband has been on protection in custody which is not at all surprising of course given the nature of the crimes that he has pleaded guilty to. She has been in regular contact since he has been in custody and speaks to him every day by phone and visits him weekly.
37. BB too visits him regularly. She is now over eighteen. The other children are not permitted to visit by the prison authorities.
38. It is clear that PN has the ongoing support of his wife. She indicates that their children also continue to support their father and step-father despite having obvious difficulties in this process. There is also support from PN’s own parents as well as his grandparents and his sister. He also has support from their local church. As she said, she stands by him and forgives him for all he has done.
39. KB acknowledged under cross-examination by Mr Brown, who appeared for the Director of Public Prosecutions, that when she read the facts of the offences she was shocked, sickened, numbed and distressed; she could not believe that her husband had done all these things and BB, KB said, did not want the family ripped apart by these offences, or at least the offences involving her.
40. There was also tendered in evidence by Mr Crawford-Fish a report from a consultant forensic psychiatrist, a Dr Jonathan Carne, dated 9 December 2008. Dr Carne confirms PN’s personal history. He is now forty-one years of age and had, as I said, a relatively normal personal upbringing. His parents separated when he was young and his mother remarried and his relationship with his stepfather was poor, but there was no violence or neglect or abuse. He is close to his mother. He finished the HSC and spent two and a half years in the Australian Federal Police before securing other employment regularly in sales and, for the previous five years before his arrest, work in a bar.
41. PN detailed to Dr Carne that there was a significant degree of conflict in his relationship with his wife when he commenced his offending with his stepdaughter and that there were many arguments over money. He has no history of drug or alcohol or gambling abuse. He told Dr Carne that he had no interest in child pornography or any sexual contact with children until his stepdaughter BB reached the age of thirteen or so in about 2002 when they commenced the sexual relationship which I have referred to.
42. He confirmed to Dr Carne that the sexual relationship with BB continued for five years. Over that period he developed his interest in the Internet and child pornography, visiting chat rooms. I observe at this stage that his offences regarding the use of the Internet range over periods from 1 December 2005 to 8 May 2007. The first actual contact personally with somebody he was communicating with was in late 2006.
43. Dr Carne observed that PN appeared ashamed, remorseful and depressed. In discussing rehabilitation prospects Dr Carne highlighted two features: one is that PN appeared to accept full responsibility for the offending behaviour and to express remorse and regret. That, says Dr Carne, is generally accepted as the first stage in a positive sign of rehabilitation in a sexual offender. He has not blamed any of the victims. The second is that there is no history of any lifelong interest in paedophilia. As the doctor observed, his interest appeared to be awakened when he commenced his sexual relationship with his adolescent stepdaughter.
44. Dr Carne expressed the opinion that these factors pointed to “a greater prospect for rehabilitation than an adult male who has been sexually aroused and interested in adolescents all their adult life.” But, as he adds, the prospects for rehabilitation “can only be judged on [PN’s] response to a treatment program”. He suggests a treatment program including attending the CUBITT Program whilst in custody and seeing a psychiatrist experienced in the treatment of adult sexual offenders. He also considers medication to control his sexual urges and follow-up after release. In due course I will direct that Dr Carne’s report accompany PN into custody.
45. I turn now to submissions made by the parties and my findings in respect of those submissions. I accept Mr Crawford-Fish’s submission that PN’s prospects of rehabilitation are more favourable than for some other offenders. I accept Dr Carne’s observations in this regard. I also accept that he has the full support of his family and church community.
46. Mr Crawford-Fish invited me to take into account the remorse shown by PN. There are a number of references to remorse in the evidence, but s 21A(3) has recently been amended to provide that remorse can be taken into account only if the offender has provided evidence that he or she has accepted responsibility for their actions and has acknowledged any injury, loss or damage caused by their actions or made reparation. There is evidence that PN has accepted responsibility - that is clear from Dr Carne’s report - but I cannot find in the evidence anywhere any acknowledgment by PN of the injury, loss or damage brought about by these offences.
47. I am reminded by that reference to injury, loss or damage of the fact that one of the victims, namely AW, has provided a victim impact statement. It is part of exhibit A and I propose to read it in full. It reads as follows:
I have been bullied and changed schools twice since this happened. I find it hard to focus and fit in anywhere now. It is so hard to feel motivated. I cannot hold on to a steady friendship with anyone because I cannot trust people. I cannot be happy any more. You have ruined everything and things will never be how they should be now and for the rest of my life. Even after months of counselling things are not even near how I used to be. [AW].“You have ruined everything. You have taken my childhood away from me. I have been losing everything because of what happened to me. I have lost friends and my best friends. I have lost my happiness and my childhood. I have no words that can explain the pain and hurt that has been dwelling inside of me. I may not have scars on the outside, but I do on the inside. The pain and suffering emotionally is so bad. I always feel that I am breaking down inside. Before his happened I was happy. I was also on my way to becoming a straight-A student, but since this happened my grades have dropped.
7 December 2008.”
That is an articulate and graphic illustration of the tragedy which these kinds of crimes committed against children can have in their lives. I will be taking that into account in sentencing PN, and indeed I find that the emotional harm brought about to AW was substantial in accordance with s 21A(2)(g) of the Crimes (Sentencing Procedure) Act.
48. Returning to the submissions, Mr Crawford-Fish realistically acknowledges that in respect of the offences involving sexual intercourse, they were clearly planned and involved deception. I had not included amongst the facts that often PN lied about his real age. Mr Crawford-Fish acknowledged, which is part of the offending behaviour, rather than an aggravating feature separately to be taken into account, that his client had targeted young girls and that the number of victims was significant. He pointed out correctly that none of the relationships involved any violence of threats. This means that there is absent what might have been an even greater aggravation to his criminal behaviour.
49. The dissemination of the pornographic material was over a relatively short period of time and I take that into account. I also take into account that there was no profit involved in the dissemination of the material. The possession of the pornography appeared to extend over some period of years, Mr Crawford-Fish correctly acknowledged. He also acknowledged that, correctly in my opinion, the seriousness of the child pornography involved in the offences on the scale known as COPINE ranged from level 1 through to level 8 or level 9. Level 1 is the least serious; level 8 involves pictures of children being the subject to a sexual assault involving digital touching and involving an adult; level 9 involves grossly obscene pictures of sexual assault involving penetrative sex, masturbation or oral sex involving an adult. From the description that I have given, those concessions are appropriate and indeed it does extend to level 9 I find.
50. Mr Crawford-Fish submitted that there needs to be some partial concurrency, so far as the sentencing of his client for the crimes committed against AW were concerned, and some concurrency in respect of some of the other offences and I have taken into account those submissions.
51. He urged me to take into account the following matters under s 21A(3) of the Crimes (Sentencing Procedure) Act. First was that his client does not have any significant record of previous convictions. I do take that into account. As I said at the commencement of these remarks, PN’s record is relatively minor. He has convictions in his early twenties for malicious damage, assault and malicious injury, and about three or fours years ago he was convicted of driving with a low range of prescribed concentration of alcohol. I will take that into account in his favour.
52. Next, Mr Crawford-Fish asked me to take into account that he is a person of good character. I give limited weight to that factor for reasons which I will refer to in due course.
53. He has asked me to take into account that he has good prospects of rehabilitation. I do take those into account. On balance I do regard his prospects of rehabilitation as good.
54. Finally, he has asked me to take into account that his client has pleaded guilty at the earliest available opportunity. I do take that into account and will in due course specify how I take that into account. So far as the Commonwealth offences are concerned, he referred to the corresponding provision under s 16A(2) and asked me to take into account his client’s contrition which I do because the provision is not so restricted as the State provision. I also take into account his client’s plea of guilty, his character to limited extent and his prospects of rehabilitation.
55. Mr Brown, for the Director of Public Prosecutions, correctly characterised the offending on the Internet as involving a parent’s worst nightmare. This must be particularly so in respect of the offences committed against AW, a school girl who was contacted by PN on the Internet, picked up from her school and taken away to a motel room in a capital city for the purposes of sexual intercourse which they engage in before he drops her off at a shopping centre after which she spends the night in a park.
56. In characterising the offences, Mr Brown in respect of the AW sexual intercourse offences, invites me to find that they are in the high range because she was thirteen years of age, was picked up from school and taken away from her local area to the city. I am inclined to agree with his submission and I think those offences must be in the middle to high range of seriousness for offences of that kind.
57 As for the procuring of AW, he submits that it is quite serious and towards the high range because of her age. She was sixteen and the provision regards anyone being procured under sixteen as an offence, so I do regard that as in the middle of the range of objective seriousness. As for the possession of the child pornography, he submits that it is at least in the middle of the range and in light of Mr Crawford-Fish’s appropriate and correct concession regarding the nature of the material, I regard the possession as towards the top of the middle of the range. I do not regard it as in the top of the range because the number of images compared to some other cases is not as great.
58. As far as the sexual intercourse with his stepdaughter BB is concerned, Mr Brown submits that it is at least mid range but not high range because it did not involve penile intercourse. I accept that submission and find that the offence is in the middle of the range of objective seriousness.
59. As for the sexual intercourse with TZ and BB as a fourteen-year-old are concerned, I find them both in the middle of the range of objective seriousness. The offence against TZ is towards the top of that range because it involved penile intercourse, and the offence against BB is towards the bottom of the middle of the range.
60. So far as procuring BC is concerned, she was fifteen at the time and I regard that offence as in the middle of the range of objective seriousness. So far as the grooming of MD is concerned, I regard that as in the middle of the range of objective seriousness. Finally, the dissemination of the child pornography, I regard as being in the high range of objective seriousness particularly since some of the images - at least one disseminated - was of his own stepdaughter.
61. In contrast to Mr Crawford-Fish, Mr Brown selected the seven or eight month period of some of these offences submitting that it is not a long period. I find obviously that these offences were not committed in isolation representing a few days or a week’s separation, but on the other hand they did not extend - so far as some of the procuring offences - over an extended period of time such as years.
62. Mr Brown submits that there is a question mark over his rehabilitation. I think that is a sound submission but, as I say, on balance I accept the evidence of Dr Carne, backed up as it is by the support of the family.
63. I have been referred to some authorities and I make brief reference to the principles which are engaged by those authorities. Clearly, so far as the possession and dissemination of child pornography is concerned, these are crimes where the factor of general deterrence is paramount. This is made clear in a number of the authorities. Although the Court of Criminal Appeal’s decision in R v Gent [2005] NSWCCA 370 concerns the importation of child pornography, the observations in that judgment about the importance of general deterrence related to the use of these images promoting the victimisation of the children who are the subject of the images, are relevant to a case such as this. In Gent, the Court of Criminal Appeal referred to a judgment of the Queensland Court of Appeal in R v Cook; ex parte Attorney-General (Qld) [2004] QCA 469. I refer to a passage from the judgment of Williams J at [26] of that judgment where the Judge refers to Kennedy J in R v Jones (1999) 108 A Crim R 50:
- “The production of child pornography for dissemination involves the exploitation and corruption of children who are incapable of protecting themselves. The collection of such material is likely to encourage those who are actively involved in corrupting the children involved in the sexual activities depicted in who recruit and use those children for the purpose of recording and distributing the results. The offence of possessing child pornography cannot be characterised as a victimless crime. The children, in the end, are the victims.”
64. I have taken into account in sentencing for the Commonwealth offences of procuring the factors referred to in Tector v R [2008] NSWCCA 151.
65. The good character up till now of PN, the offender in this case, must be given limited weight because he had since 2002 been committing serious sexual offences against his own stepdaughter. I am sentencing him only in respect of two of those crimes but there is evidence that he had been engaged in sexual activity since she was the age of twelve, and that reduces significantly the weight I put on his good character.
66. I turn now to the sentences which I must impose for these crimes. I propose to approach the sentencing in this way. Because there are so many different crimes, or different types of crime in respect of some of which I need to take into account additional charges, I need to bear in mind eventually the principles of totality and proportionality. This will need to be reflected in the sentences being in many respects concurrent with each other. But the initial approach I propose to take is to indicate what I regard as appropriate sentences for each of these crimes and then I will indicate what the total of that sentence is. I will then apply certain discounts to reach a final sentence in respect of each of the crimes. In listing first the appropriate sentence before discount, I do not propose to refer to any non-parole periods.
67. In respect of the sexual intercourse assault against AW, in respect of which I take into account the Form 1 matters, I would regard a sentence of ten years imprisonment as appropriate from 18 May 2007 to 17 May 2017.
68 In respect of each of the other three sexual intercourse offences against AW, I would regard a penalty of eight years as appropriate. One of them should commence on 18 May 2008 and finish on 17 May 2016. The second should commence on 18 May 2009 and conclude on 17 May 2017. The third should commence on 18 May 2010 and conclude on 17 May 2018. I emphasise that these are not the penalties which I will ultimately impose but they indicate the seriousness of the matters in respect of which I am sentencing PN.
69. For the offence of using a carriage service to procure AW, I regard a penalty of seven years as appropriate to commence on 18 May 2012 and to conclude on 17 May 2019.
70. In respect of the offence of using a carriage service to procure BC, once again a seven-year penalty is appropriate from 18 May 2013 to 17 May 2020.
71 For the offence of using a carriage service to groom MD, an eight-year penalty is appropriate because there is a Form 1 which I take into account regarding that matter, and that would be eight years from 18 May 2014 to 17 May 2022.
72 In respect of the two offences of sexual intercourse with TZ and BB, in respect of TZ, I regard a six-year penalty as appropriate from 18 May 2017 to 17 May 2023. In respect of the offence against BC, a five-year penalty is appropriate from 18 May 2019 to 17 May 2024.
73. In respect of the sexual intercourse with his stepdaughter BB, I regard a five-year penalty as appropriate from 18 May 2020 to 17 May 2025.
74. For the possession of child pornography, for the offence to which are attached the additional offences, I regard a four-year penalty as appropriate from 18 May 2022 to 17 May 2026.
75. For the other two offences, I would impose concurrent sentences of three years from 18 May 2024 to 17 May 2027.
76. Finally, for the dissemination of child pornography, taking into account the additional matters, I regard an eight-year penalty as appropriate from 18 May 2021 to 17 May 2029.
77. The total of those sentences by my calculations is from 18 May 2007 to 17 May 2029, that is some twenty-two years. Taking into account the fact that PN had no prior convictions, his limited good character and his prospects of rehabilitation, I would reduce that overall sentence to twenty years imprisonment.
78. It is here that I take into account the fact that PN has pleaded guilty to all these offences, as Mr Crawford-Fish points out, alleviating the need for many victims of his crimes to be required to come forward and give evidence. I propose to give him the maximum discount of twenty-five per cent. Accordingly I would regard an overall head sentence for all of these offences as fifteen years imprisonment.
79. The normal statutory non-parole period representing such a penalty would be something over eleven years. I accept the submissions made by Mr Crawford-Fish that there are special circumstances in this case which justify me adjusting that ratio, namely, his client’s need for treatment, the fact that he will be on protection, the fact that he will be unable to see his children and the fact that this is his first time in custody. I therefore propose to fix an overall non-parole period of ten years to conclude on 18 May 2017.
80. In some respects, compared to the figures which I initially outlined, a minimum term in gaol of ten years might be regarded as relatively lenient for the extent of the depravity involved in the crimes and the number of victims involved in these crimes committed by PN. But I need to take into account that I should impose a sentence which is not crushing so far as PN is concerned. I calculate that when he will be released he will be aged fifty years.
81. I turn now to the individual sentences which I will impose in respect of these crimes. These I will need you Mr Crawford-Fish and Mr Brown to make a careful note of because I will hear you after lunch about these. I will sentence in a different order from what I previously indicated.
82. In respect of the dissemination of child pornography, taking into account the matters on Form 1, I fix a non-parole period of six years from 18 May 2007 to expire on 17 May 2013. The balance of the term will be two years from 18 May 2013 to 17 May 2015.
83. In respect of the possession of child pornography, taking into account the Form 1 matters, I sentence PN to a fixed term of imprisonment of four years from 18 May 2007 to 17 May 2011.
84. In respect of each of the other two possession of child pornography offences, I sentence him to a fixed term of three years to commence 18 May 2007 and to conclude on 17 May 2010.
85. In respect of the sexual intercourse with BB under special care against s 73(1) of the Crimes Act, I sentence PN to a fixed term of five years to commence on 18 May 2007 and to conclude on 17 May 2012.
86. In respect of the two offences of sexual intercourse with TZ and BB: in respect of TZ, I sentence PN to six years imprisonment to commence on 18 May 2008 and to expire on 17 May 2014, that is a fixed term; in respect of the offence against BB I sentence him to five years from 18 May 2007 to expire on 17 May 2012.
87. In respect of the use of the carriage service to groom MD, I fix a non-parole period of six years and six months to commence on 18 May 2007 and to expire on 17 May 2013. The balance of the term will be one year and six months to commence on 18 November 2013 and to conclude on 17 May 2015.
88. In respect of the use of the carriage service to procure BC, I set a fixed term of seven years from 18 November 2007 to 17 November 2014.
89. In respect of the use of the carriage service to procure AW, I set a fixed term of seven years to commence on 18 May 2008 and to conclude on 17 May 2015.
90. In respect of one of the counts of sexual intercourse with AW, I fix a non-parole period of six years to commence on 18 November 2009 and to expire on 17 November 2015. The balance of the term will be two years from 18 November 2015 expiring on 17 November 2017.
91. In respect of the second sexual intercourse offence against AW, I fix a non-parole period of six years from 18 February 2010 to expire on 17 February 16. The balance of the term will be two years from 18 February 2016 to 17 February 2018.
92. In respect of the third offence of sexual intercourse with AW, I fix a non-parole period of six years to commence 18 May 2010 and to expire on 17 May 2016. A balance of the term will be two years from 18 May 2016 to 17 May 2018.
93. In respect of the sexual intercourse against AW to which are attached the additional offences on Form 1, I fix a non-parole period of five years to commence on 18 May 2012 and to expire on 17 May 2015. The balance of the term will be five years to commence on 18 May 2017 and to conclude on 17 May 2022.
94. The overall sentence is fifteen years to commence on 18 May 2007 and to conclude on 17 May 2022. The non-parole period is ten years to commence on 18 May 2007 and to conclude on 17 May 2017.
95. That does not conclude the sentence but that is as far as I propose to take it from now. I will hear from Mr Brown and Mr Crawford-Fish, you both, at 5 past 3.
MATTER STOOD IN LIST
LUNCHEON ADJOURNMENT
HIS HONOUR: Mr Brown and Mr Crawford-Fish, the matter of PN.
BROWN: Just as far as the actual sentences that your Honour has imposed, there’s just one matter. That was in respect of, if I can call it - or matter number 4, the sexual intercourse with a person between ten and fourteen where your Honour took into account the Form 1 offences.
HIS HONOUR: Yes.
BROWN: That your Honour specified a non-parole period of five years commencing 18 May 2012--
HIS HONOUR: Correct.
BROWN: --and I heard your Honour say 17 May 2015.
HIS HONOUR: It should have been 2017.
BROWN: Yes your Honour.
96. I’ve got 2017 here in front of me so for clarity in respect of the offence just identified by Mr Brown, the non-parole period is five years from 18 May 2012 to 17 May 2017. The balance of the term is five years from 18 May 2017 to 17 May 2022.
BROWN: Thank you your Honour. I know your Honour’s not quite finished but if I could just go to one matter in your Honour’s remarks. When your Honour was categorising the criminality of matter number 5 which is also sequence 10, that is use carriage service to procure AW, when your Honour categorised that as towards the higher range, you said one of the reasons - and I think you meant that AW was thirteen but you actually said that she was sixteen years. That was what I heard your Honour. I know your Honour meant to say thirteen years. I just bring that to your Honour’s attention.
97. Yes what I meant to say is that the parameter for the offence is under sixteen and she’s thirteen so that she is at least two years under that limit, yes.
BROWN: Thank you your Honour we’ve just clarified that. Then one other minor matter and that’s just in respect to the Crown sentence summary that was handed up to your Honour.
HIS HONOUR: Yes.
BROWN: I think your Honour in fact corrected it as you went through your remarks, about point 3 on page 2 of that summary sheet, as far as the charge that was to be - that the matters of use carriage service to procure were to be taken into account on or in respect of, your Honour certainly referred to the victim MD and I don’t know if your Honour’s sheet had, but mine did. My friend’s, he’d had BC there, whether or not that had been changed at some point at sequence 13--
HIS HONOUR: It does have BC.
BROWN: It has BC. When your Honour did make your remarks, you did refer to MD.
HIS HONOUR: Yes.
BROWN: Whenever you did refer to that matter. I wonder if that change could be made so that the record could be complete.
98. All right. You’ve indicated that exhibit A needs to be amended on page 2 about a third of the way down where it says to place on form - principal offence - use carriage service to make it easy to procure for sexual activity (grooming) sequence 13 (BC) should read (MD) and I will make that change. Yes.
BROWN: Thank you your Honour. The only other thing that just might assist your Honour and I think your Honour was going to go this anyway, in sentencing for the Commonwealth offences has, I read, 19AB that because your Honour has not specified a non-parole period for the Commonwealth offences, that your Honour would state your reasons. I know it’s obvious and my friend would realise it’s obvious from the way you’re structuring your sentence, but I just thought I’d refer you to that if that does assist, 19A, AB subsection--
HIS HONOUR: I’d be grateful, just let me find because I was given the legislation.
BROWN: If you don’t have it I’ve got it and I could hand mine up your Honour.
HIS HONOUR: I’ve got the criminal--
BROWN: I think you’re given the Criminal Code but you weren’t given the extracts from the Crimes Act.
HIS HONOUR: No I need the Crimes Act.
BROWN: It might be easier if I hand this up your Honour.
HIS HONOUR: Thank you. Number 13 I gave a non-parole period. Number 12, I didn’t, so it’s 12 and 5 I didn’t. I think it’s 5 and 12 is that right?
BROWN: Twelve, you didn’t give a non-parole period.
HIS HONOUR: That’s correct I gave just a fixed term of seven years.
BROWN: Fixed term yes, and the same with 5.
HIS HONOUR: Five I gave a fixed term of seven years as well but the other Commonwealth, the third Commonwealth offence number 13--
BROWN: You did.
HIS HONOUR: I did?
BROWN: Yes.
HIS HONOUR: Okay. So what’s the section?
BROWN: Subsection (4) of--
HIS HONOUR: Of 18?
BROWN: I’ve got 19AB.
HIS HONOUR: Just let me read it. Thank you.
99. In accordance with section 19AB(4) of the Crimes Act 1914 (Commonwealth), my reasons for not setting a non-parole period in respect of the offence of using the carriage service to procure AW, and using the carriage service to procure BC - both offences against s 474.261 of the Criminal Code Act - are that the non-parole periods for other offences are greater than fixed terms that I set for those two offences and therefore there would be no utility in fixing non-parole periods for those two offences. Yes.
BROWN: Thank you your Honour, yes.
HIS HONOUR: Anything else Mr Brown?
BROWN: No I can’t think of anything else your Honour.
HIS HONOUR: Okay thank you. Mr Crawford-Fish?
CRAWFORD-FISH: Would your Honour mind repeating a remark that your Honour made earlier and that is that it would be an offence to mention the names of any of the victims or that of the offender.
HIS HONOUR: Yes. That is the case.
100. In giving my remarks on sentence, I had to refer to the names of victims and the name of the offender. It is an offence to repeat outside this court, to publish outside this court, any information which would identify any of the victims of any of the offences. One such piece of information is the name of the offender PN because one of the victims, BB is also known as BN. So I repeat it is an offence to publish out side this courtroom any information by which any of the victims could be identified. Okay.
BROWN: Just one further matter I remembered your Honour in as far as the exhibits were concerned the images--
HIS HONOUR: Yes.
BROWN: --if I could ask for an destruction order in respect of those?
HIS HONOUR: Yes. Now yesterday I was asked for one of those and it was to be post-dated.
BROWN: Yes well it shouldn’t happen straightaway but perhaps if--
HIS HONOUR: Somebody suggested yesterday, somebody in the opposition [?] suggested 30 June 2009.
BROWN: That would be fine too by then, yes.
HIS HONOUR: All right.
BROWN: And if the police could come as soon as - with the registry to sign for those exhibits.
HIS HONOUR: I’m just wondering where those exhibits are. I’ll just get them.
BROWN: Unfortunately the police haven’t come back after lunch. They would need to remain with the registry and I’ll ask the police to come as soon as possible to sign for them.
HIS HONOUR: All right. So it’s exhibit B and exhibit C I think, is that right?
BROWN: That’s correct your Honour.
HIS HONOUR: All right.
101. First I direct that exhibits B and C ought to be collected by the police involved in this matter this afternoon from the registry. Secondly, that those exhibits are to be destroyed but not before 30 June 2009.
BROWN: Thank you your Honour.
HIS HONOUR: I’ll return those two exhibits to my Associate. Now so far as the figures are concerned, any corrections needed?
BROWN: No your Honour.
CRAWFORD-FISH: No your Honour.
HIS HONOUR: All right.
102. To confirm, I direct that a copy of the report of Dr Jonathan Carne accompany PN into custody, that is exhibit 1, and be made available to those persons in the Department of Correctional Services who may be responsible for any treatment of him or any rehabilitation. There is one other thing I have to do, explain the sentences to PN.
103. PN I’m obliged to explain to you that the overall sentence commences on 18 May 2007 which is when you first went into custody. You've heard how the sentences are divided up into the various sentences which I read out. The overall sentence is one of 15 years commencing on 18 May 2007 and concluding on 17 May 2022. Your sentence will be finished on 17 May 2022. There is a non-parole period of ten years and the earliest day on which it appears on the basis of information available to the court that you will become eligible to be released on parole is 17 May 2017, that’s exactly ten years from when you went into custody. Whether or not you are released on parole is not a matter for me but for the Parole Authority, but that is the date on which it appears to me you will be eligible to be released on parole. All right you may sit down.
Is there anything else I need to do in the matter of PN?
BROWN: I don’t think so your Honour.
CRAWFORD-FISH: No your Honour.
HIS HONOUR: All right. PN can be taken down.
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