R v SBR

[2012] NSWCCA 233

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	R v SBR [2012] NSWCCA 233
Hearing dates:	18 June 2012
Decision date:	18 June 2012
Before:	McClellan CJ at CL at [1] Price J at [34] Button J at [35]
Decision:	Appeal dismissed
Catchwords:	CRIMINAL LAW - appeal - sentence - Crown appeal against sentence - whether identifiably separate periods of imprisonment should have been imposed for counts 1 and 2 - whether sentencing judge failed to properly determine objective seriousness for count 3 - no error demonstrated - appeal dismissed.
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act
Cases Cited:	Green v The Queen [2011] HCA 49; (2011) 86 ALJR 36 Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243 R v Cahyodi (2007) NSWCCA 1 R v JW [2010] NSWCCA 49; 77 NSWLR 7
Category:	Principal judgment
Parties:	Crown (Applicant) SBR (Respondent)
Representation:	Counsel: R Herps (Applicant/Crown) J Stratton SC (Respondent) Solicitors: Solicitor for Public Prosecutions (Applicant/Crown) Legal Aid Commission of NSW (Respondent)
File Number(s):	2009/207245
Decision under appeal	Date of Decision: 2011-12-15 00:00:00 Before: North DCJ File Number(s): 2009/207245

Judgment

1. McCLELLAN CJ at CL: The respondent pleaded guilty to three counts concerning child pornography. Counts 1 and 2 alleged that the respondent had produced child pornography contrary to s 91H(2) of the Crimes Act 1900. Count 3 alleged that the respondent had possessed child pornography contrary to the same section. He pleaded guilty shortly before the trial and was afforded a discount of 12½ percent by the sentencing judge. At the time that he was sentenced he asked the judge to take into account a single count of aggravated sexual assault under s 61M(1) of the Crimes Act on a Form 1.

1. The maximum penalty for each offence was ten years imprisonment. The offence contrary to s 61M(1) of the Act has a standard non-parole period of seven years.

1. Although the respondent pleaded guilty on 19 October 2010, the matter was not dealt with immediately. It was initially stood over for sentence to 25 February 2011 when submissions were received, however, defence counsel made an application that further reports be obtained and the matter was adjourned for a further six months. The respondent was ultimately sentenced on 15 December 2011, more than twelve months after his original plea.

1. The sentences imposed were as follows:

Counts 1 and 2:A fixed term of 12months imprisonment, both sentences to date from 9 December 2011.

The form 1 offence was taken into account on count 1.

Count 3:A fixed term of 12 months imprisonment to date from 9 June 2012.

This sentence was made concurrent with the last six months of the sentences in relation to counts 1 and 2.

1. Accordingly the total effective sentence was one of 18 months imprisonment. The sentencing judge suspended the entirety of the sentence pursuant to s 12 of the Crimes (Sentencing Procedure) Act. Short particulars of each of the counts are as follows:

Count 1: produce child pornography:These photographs were taken on 20 November 2008 at the young person's grandfather's house at Bushby. The 14 images were taken in the early afternoon when the young person was asleep on a lounge chair wearing a red T-shirt. They were taken on the day of a family lunch when the young persons' father was out of the house speaking with neighbours. The 14 photographs show a view inside the young person's T-shirt which was being pulled out, or perhaps up, to expose one or both of her breasts. The images were largely focused on her breasts.

The Form 1 matter: This photograph was taken on 2 November 2008 and appears within the same series of photographs the subject of count 1. In this photograph the respondent is depicted kneeling, with his lips in contact with the young person's side just above her hip.

Count 2: produce child pornography:This count concerns 35 images taken in the early hours of 14 February 2009 at the respondent's residence. The respondent had taken the young person to Luna Park on 13 February. The 35 images show the young person asleep in the respondent's bed with her pyjama top above her breasts, leaving both breasts exposed. In some photographs the young person's hand partially covers her breasts.

Count 3: possess child pornography: When police searched the respondent's premises they located a CD inside the drive of one of his computers. It was marked "Steven's Kodak Pics 2" and it contained 235 images of female children. The images appeared to be professionally taken and it is probable that they were downloaded from a child pornography web site. Some 7 of them were classified at level 9 on the COPINE scale, another 20 were at level 7, the others were lower down the scale.

1. The respondent was sentenced in accordance with the facts that had been agreed.

1. As it happened, on 8 March 2009 the respondent was arrested by police for an unrelated matter. At the time of the arrest the police seized a camera in his possession, and later applied for, and were granted, a warrant to search his premises. During that search two computers were seized and they were subsequently examined, and that examination revealed the factual matter relevant to count 3. During the examination the disk that I have referred to was identified.

1. During the course of examining the photographic material the police identified a number of images of the young person, who is the second cousin of the respondent and was aged 12 at the time. I should confirm that there is a non-publication order that is made in relation to the young person's identity. The young person was depicted, firstly, lying on a lounge and appeared to be sleeping. Two of the images were not child pornography but were images of her face. There are, however, 14 photographs showing a view inside the young person's T-shirt when it was pulled up, and there is one image, as I have already related, which depicts the respondent kneeling, with his lips in contact with the young person's side just above the hip.

1. In relation to count 2, again the police located the images on the camera. She is depicted wearing pink pyjamas. There are 35 images of her asleep under the sheets with the pyjama top above her breasts, which were exposed and, accordingly, could be photographed.

1. The respondent was arrested and at the time of his arrest made a number of admissions in relation to the offences. He participated in an ERISP, and freely admitted the possession of the disk and to knowledge of its content.

1. Police enquiries with the young person and her father revealed that the respondent had over the years had significant contact with the young person and had engaged in conventional and innocent behaviour with her during those occasions.

1. In relation to count 2, the respondent said that the young person had slept as his premises on that evening after attending Luna Park. She had slept in his bed while he slept on the recliner lounge. He admitted taking the photographs of the young person during the evening.

1. The sentencing judge in his careful and detailed remarks on sentence assessed the objective seriousness of each of the offences. His Honour had particular regard to the decision of this Court in Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243 in which matters relevant to the seriousness of this type of offending were discussed. His Honour concluded that there was little to distinguish between counts 1 and 2 even taking into account the matter on the Form 1. His Honour accepted that the assault was a very low level example of an indecent assault. His Honour ultimately concluded that both counts 1 and 2 and the matter on the Form 1 fell towards the lower end of the scale for matters of their kind. His Honour also concluded that count 3 was towards the lower end of the scale, and but for the fact that there were a number of photos depicting very young children and a small number at the very high end of the COPINE scale, his Honour concluded that this count would also have fallen at the bottom of the range of seriousness.

1. The respondent was aged 51 at the time he was sentenced. He first attended a session with forensic psychiatrist Rima Nasr on 7 October 2010, less than 2 weeks before entering his pleas of guilty. Ms Nasr observed an odd demeanour, disjointed thought processes, limited insight, narcissistic personality traits, and a grandiose and egocentric self-image. He had been referred to her by the respondent's legal advisors.

1. Ms Nasr assessed the respondent as of low average verbal intellectual function and average non-verbal intellectual function, but overall in an average range. Ms Nasr referred the respondent to a neuro-psychologist, Dr Wayne Reid.

1. Dr Reid concluded that the respondent "presented as mildly fatuous, with concrete and somewhat grandiose ideation of time ... did not always appear to grasp the wider meaning of questions ... he was a vague and inconsistent historian ... On testing no impairments were seen in (the respondent's) naming, verbal generativity and simple perceptuo-clerical speed. The underlying reason for the above deficits is unclear. ... The early stages of fronto-temporal dementia is a possibility."

1. Dr Reid found the respondent's presentation to be unusual and concluded that there was a possibility that he was developing Alzheimers disease.

1. Ms Nasr indicated that although the respondent was initially ambivalent to engaging in any treatment, he had subsequently become motivated and had made a commitment to ongoing psychological treatment and assistance.

1. The sentencing judge had paid careful regard to these reports. In particular he emphasised that a reading of Ms Nasr's reports indicated that the respondent required extensive therapeutic intervention and that further treatment was required. Ms Nasr had concluded that if the treatment continues there was "at least a reasonable chance of (the respondent) not reoffending in the future."

1. Ultimately his Honour concluded that a sentence of imprisonment was appropriate but determined that it should be suspended, having regard to his Honour's conclusion that "it is vital for the (the respondent) and for the community that he continue with his rehabilitation, and keeping in mind the objective seriousness of the offences, and the fact that it now over 2½ years ago that these offences were committed."

1. The Crown ultimately filed five grounds of appeal. They are as follows:

Ground 1: By failing to accumulate the sentence for count 2 his Honour did not acknowledge that count 2 was a separate act of criminality to count 1.

Ground 2: His Honour failed to properly determine the objective seriousness of count 3.

Ground 3: In suspending the sentence his Honour failed to have adequate regard to general deterrence.

Ground 4: His Honour found contrition and remorse where none was demonstrated; and

Ground 5: His Honour's sentencing discretion miscarried and resulted in the imposition of a sentence which is manifestly inadequate.

1. In the written submissions filed in support of the appeal the Crown advanced arguments in relation to each of the grounds but ultimately acknowledge that discretionary factors loomed large in the appeal and accepted that the sentencing judge's remarks demonstrate an acknowledgment of the relevant principles and the factors to which he was obliged to have regard. It was, however, submitted that the sentencing judge had placed undue weight on the respondent's efforts at rehabilitation and had too readily dismissed proper consideration of the need to convey the very serious way in which courts view the possession of child pornography, the exploitation and abuse inherent in its making and the substantial breach of trust brought about by its creation. In the course of oral submissions made to this Court today, counsel for the Crown in his measured and appropriate submissions, emphasised the possible problems with the way in which his Honour dealt with the matter of contrition and remorse. I will return to that issue in due course.

1. The grounds of appeal involve two matters of particular significance. Ground 1 submits that his Honour should have provided a separate period of identifiable imprisonment for each of counts 1 and 2 rather than make them concurrent. Ground 2 asserts that his Honour failed to properly determine the objective seriousness of count 3.

1. With respect to ground1 I accept that each of counts 1 and 2 were distinct acts of criminality. However, their character was similar and his Honour was correct to conclude that they were at the lowest end of any scale of objective criminality. This Court has emphasised in the past that there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively which is a matter for the sentencing judge. The critical issue is whether the total sentence is appropriate having regard to all of the offending: R v Cahyodi (2007) NSWCCA 1 at [12] and [27]. I am not persuaded that his Honour erred in adopting the approach which he did.

1. With respect to count 3 in my opinion it is a more serious offence than either counts 1 or 2. The offence involved the accumulation of 235 photographs which were presumably downloaded from the internet, some of which were at a high level on the COPINE scale. They are of course the product of the exploitation and abuse of young persons by others. This Court has commenced upon the seriousness of this crime on other occasions. If I had been sentencing at first instance I would probably have concluded that a sentence greater than 12 months was appropriate for this offence.

1. Apart from the matter of contrition and remorse, with respect to the other grounds of appeal I am satisfied that the findings which his Honour made were open. Having regard to the identified disabilities of the respondent and the prospect that counselling, which would occur outside of the prison system, was essential to the rehabilitation of the respondent, I am not persuaded that his Honour erred in failing to have appropriate regard to general deterrence.

1. It is correct, as the appellant emphasises, that the respondent did not demonstrate his contrition and remorse in a forthright manner. Indeed, complaint is made that his Honour's finding in this respect was erroneous, having regard to the failure of the respondent to expressly acknowledge and express contrition for his offending. When considering this issue his Honour had regard to the reports of Ms Nasr and Dr Reid. It is true that nowhere in the reports does the respondent directly acknowledge his wrongdoing or the breach of trust involved in his actions. Furthermore, it is apparent that at least in his initial consultation there were difficulties in effectively discussing the issues with the respondent. However, those difficulties have since passed and it is plain that the respondent is now undertaking a treatment program. His Honour was mindful of the reports from these persons, but acknowledged that without the respondent giving evidence it was difficult to discern whether or not he was genuinely remorseful. However, his Honour accepted the plea of guilty and his commitment to an extensive program of treatment supported the conclusion which his Honour made that the respondent was, by the time that he was sentenced, remorseful for his actions.

1. Although the evidentiary foundation for his Honour's conclusion may not be strong, I am not persuaded that, having regard to the matters which his Honour considered, the finding which he made was not open.

1. The principles relevant to a Crown appeal are well known. They were discussed at length by this Court in R v JW [2010] NSWCCA 49; 77 NSWLR 7 and by the High Court in Green v The Queen [2011] HCA 49; (2011) 86 ALJR 36. As the Crown submissions effectively concede, his Honour's remarks on sentence do not reveal any errors of principle, but rather the appellant asserts that his Honour's discretionary judgments were erroneous, particularly in relation to the sentence imposed with respect to count 3.

1. I have indicated my acceptance that the sentence for count 3 may have reasonably been greater, however, his Honour was entitled in all of the circumstances to emphasise the fact that by the time he was sentenced the respondent had embarked upon a process of rehabilitation involving psychological counselling which would have been disrupted, if not completely lost, if he was now incarcerated.

1. In so far as those matters legitimately loom large at the time that the respondent was sentenced, they are of even greater significance to this Court. This Court has been provided with evidence which confirms that the respondent has continued his counselling and has maintained a stable residential address.

1. Even if I was persuaded that the sentencing judge had erred in a manner which may require the intervention of this Court in respect of the sentence for any particular offence, I would, having regard to all of the circumstances of this case, in the exercise of the court's discretion, declined to intervene.

1. Accordingly, in my opinion the appeal should be dismissed.

1. PRICE J: I agree with the Chief Judge.

1. BUTTON J: I agree with the Chief Judge at Common Law.

1. McCLELLAN CJ at CL: Accordingly, the order of the court is as I have indicated.

**********

Decision last updated: 12 November 2012