R v Stoupe

[2015] NSWCCA 175

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	R v Stoupe [2015] NSWCCA 175
Hearing dates:	29 May 2015
Decision date:	03 July 2015
Before:	Hoeben CJ at CL at [1]; Johnson J at [2]; Beech-Jones J at [134]
Decision:	1. Crown appeal allowed. 2. Sentence imposed at the Parramatta District Court on 28 November 2014 is set aside. 3. In its place, the Respondent is sentenced to an aggregate sentence of imprisonment comprising a non-parole period of two years and six months commencing on 19 November 2014 and expiring on 18 May 2017, with a balance of term of one year and six months commencing on 19 May 2017 and concluding on 18 November 2018. 4. The earliest date upon which the Respondent will be eligible for release on parole is 19 May 2017.
Catchwords:	CRIMINAL LAW - Crown appeal - sentencing - Respondent pleaded guilty to one count of aggravated filming of a person engaged in a private act (s.91K(3) Crimes Act 1900) and three counts of aggravated indecent assault (s.61M(2) Crimes Act 1900) - victim eight year old girl - Respondent was supervisor at victim’s child care centre - all offences committed by Respondent against victim at child care centre over a six-month period - Respondents prior good character not a mitigating factor by operation of s.21A(5A) Crimes (Sentencing Procedure) Act 1999 - aggregate sentence of 16 months imposed with non-parole period of eight months - offending aggravated by Respondent’s position of trust and authority - aggregate sentence failed to reflect total criminality - sentence manifestly inadequate - residual discretion to resentence the Respondent exercised - appeal allowed - Respondent resentenced to aggregate head sentence of four years with non-parole period of two years and six months
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Crimes Amendment (Sexual Offences) Act 2008 Criminal Appeal Act 1912
Cases Cited:	AH v R [2015] NSWCCA 51 CMB v Attorney General for New South Wales [2015] HCA 9; 89 ALJR 407 Corby v R [2010] NSWCCA 146 Everett v The Queen [1994] HCA 49; 181 CLR 295 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 House v The King [1936] HCA 40; 55 CLR 499 JM v R [2014] NSWCCA 297 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Dodd (1991) 57 A Crim R 349 R v Gavel [2014] NSWCCA 56 R v Lord [2013] NSWDC 16 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 Truong v R [2013] NSWCCA 36 Zreika v R [2012] NSWCCA 44; 223 A Crim R 460
Texts Cited:	---
Category:	Principal judgment
Parties:	Regina (Appellant) Nikki Bjorn Stoupe (Respondent)
Representation:	Counsel: Mr PG Ingram SC (Appellant) Ms RW Burgess (Respondent)     Solicitors: Solicitor for Public Prosecutions (Appellant) Legal Aid NSW (Respondent)
File Number(s):	2012/353816
Publication restriction:	---
Decision under appeal	Court or tribunal: Parramatta District Court Jurisdiction: --- Citation: --- Date of Decision: 28 November 2014 Before: Judge Craigie SC File Number(s): 2012/353816

Judgment

1. HOEBEN CJ at CL: I agree with Johnson J.

2. JOHNSON J: This is a Crown appeal under s.5D Criminal Appeal Act 1912 with respect to an aggregate sentence imposed upon the Respondent, Nikki Bjorn Stoupe, by his Honour Judge Craigie SC at the Parramatta District Court on 28 November 2014 for a number of sexual offences committed against an eight-year old girl.

The Offences and Aggregate Sentence

3. The Respondent pleaded guilty to the following charges:

1. an offence of aggravated filming of a person engaged in a private act contrary to s.91K(3) Crimes Act 1900, an offence punishable by a maximum penalty of five years’ imprisonment;

2. three counts of aggravated indecent assault contrary to s.61M(2) Crimes Act 1900, each of which carries a maximum penalty of 10 years’ imprisonment with a standard non-parole period of eight years.

4. On 28 November 2014, the sentencing Judge imposed an aggregate sentence comprising a non-parole period of eight months to commence on 28 November 2014 and to expire on 27 July 2015, with a balance of term of eight months commencing on 28 July 2015 and expiring on 27 March 2016.

5. The indicative sentences with respect to each of the four counts were as follows:

1. Count 1 - the s.91K(3) offence - imprisonment for six months;

2. Count 2 - the first offence under s.61M(2) - imprisonment for one year;

3. Count 3 - the second offence under s.61M(2) - imprisonment for one year;

4. Count 4 - the third offence under s.61M(2) - imprisonment for one year and three months.

6. A Notice of Appeal, signed by the Deputy Director of Public Prosecutions on 19 January 2015, was filed and served upon the Respondent that same day.

Facts of Offences

7. An Agreed Statement of Facts was tendered at the sentencing hearing. What follows is drawn from that statement.

8. The Respondent (then aged 27 years) was employed as a child care worker by Cubby House Child Care, an organisation which provided before-and-after school care at Oakhill Drive Public School, Castle Hill. He had been so employed for six years and was the supervisor from 16 July 2012 until 29 October 2012.

9. At relevant times, there were usually between 20 to 30 children at the Centre and two to three staff, depending upon the number of children booked in that day. The children were all school age children from Kindergarten to Sixth Class.

10. The before-and-after school care at Oakhill Drive Public School operated out of a demountable classroom separate from the school building, but within the school grounds. The classroom was a single room with a storeroom at one end and a food preparation area at the other end. Access to the storeroom was not granted by the primary school until 16 July 2012, when the school provided a key to the supervisor only.

11. The Respondent would normally sit at the supervisor’s desk, which had a 1200 mm high partition on one side obstructing the view of anyone sitting at this desk area. As supervisor, the Respondent was also in charge of other staff members.

Count 2 - Aggravated Indecent Assault on 23 July 2012

12. On 23 July 2012, the Respondent was the supervisor during the after-school period. “Kate” (not her correct name), aged eight years, was in his care and under his authority. “Kate” played with her friends until they left to go home.

13. After her friends had departed, “Kate” went over to the Respondent to talk with him. He picked her up and put her on his lap, then put his hands under her school uniform and underpants and rubbed her on the outside of her vagina and anus and the surrounding area. He then removed his hands from underneath her clothing, lifted her off his lap and put her down.

14. “Kate” was collected that afternoon by her mother. On the way home, “Kate” told her mother that the Respondent had touched her inappropriately. Her mother told her not to sit on the Respondent’s lap, and texted a friend as to what “Kate” had told her. The mother made an entry in her diary about the incident.

15. “Kate’s” mother did not speak with the Respondent, or any other staff at the after-school care as to what “Kate” had told her, nor did she report it to the authorities.

Count 3 - Aggravated Indecent Assault on 10 October 2012

16. On 10 October 2012, the Respondent was the supervisor during the after-school period and “Kate” was in his care and under his authority. She walked over to the supervisor’s desk and spoke with the Respondent, who picked her up and sat her on his lap. The Respondent put his hands under her school uniform and her underpants and rubbed her buttocks and the outside of her anus.

17. A parent who came to collect her two children that afternoon saw “Kate” sitting on the Respondent’s lap when she approached the supervisor’s desk. She thought he looked surprised. “Kate” was sitting with her back against the Respondent. Her eyes were wide open and she was not smiling.

18. That parent collected her two children and, as she was leaving, spoke to a staff member, Marcella D’Souza, saying that she thought it was inappropriate that a child was sitting on the Respondent’s lap.

19. When Ms D’Souza came inside, she saw “Kate” lying on a couch with a towel on her forehead. “Kate” was collected that afternoon by her mother, who also saw “Kate” lying on the couch with a container near her which looked to contain vomit.

20. The Respondent said that “Kate” had been unwell and that he thought it was a migraine. “Kate’s” mother took her home and again “Kate” told her that the Respondent had touched her inappropriately. The mother made another diary note.

21. On 11 October 2012, “Kate” and her mother attended an appointment with a paediatrician. This appointment was made on referral by “Kate’s” general practitioner in relation to “bed wetting and migraine”. The mother spoke with the paediatrician privately, whilst “Kate” was in the waiting room, and told him that “Kate” had told her about the Respondent touching her inappropriately. The paediatrician then spoke with “Kate”, who told him that the Respondent had been touching her under her underpants. The paediatrician wrote a letter to the general practitioner that included the disclosure by “Kate”, but he did not report the matter to authorities.

22. On 12 October 2012, Ms D’Souza spoke to the Respondent about the concerns that had been earlier expressed by the parent who had seen “Kate” on the Respondent’s lap. The Respondent admitted that he sat “Kate” on his lap, but said she was unwell and he knew her mother.

Count 4 - Aggravated Indecent Assault on 26 October 2012

23. At about 4.00 pm on 26 October 2012, the Respondent took a spray bottle and napkins and told Ms D’Souza that he was going to clean in the storeroom. The Respondent would routinely get equipment out of the storeroom, but Ms D’Souza had never seen him with cleaning spray before.

24. The Respondent, as supervisor, was the only member of staff with a key to the storeroom and children were not permitted inside. The storeroom door was open and the Respondent walked inside.

25. A work-experience placement, Nathan Dallas, saw “Kate” enter the storeroom whilst the Respondent was inside.

26. The Respondent shut the door to the storeroom and told “Kate” to kneel in front of a plastic chair and to place her hands on the seat. He knelt down behind her and slowly pulled down her sports shorts and underpants to around her knees, before rubbing her bottom and between her buttocks with both hands. “Kate” stated that she needed to go to the toilet. The Respondent let her leave the room and she went to the toilet.

27. At 4.30 pm, “Kate’s” father collected her from after-school care. “Kate” parents are divorced. When “Kate” got to her father’s house, she called her mother and informed her that the Respondent had touched her bottom again. The mother came to the house and “Kate” told her in detail what the Respondent had done to her.

28. On 29 October 2012, “Kate’s” mother reported the matter to the Principal of Oakhill Drive Public School, who reported the matter to the Director of Cubby House Child Care Centre who, in turn, reported it to the Department of Family and Community Services and the Police.

29. On 1 November 2012, “Kate” was interviewed by Police and she disclosed that the Respondent had touched her inappropriately underneath her clothing on the genitals and the surrounding area.

30. At 9.30 am on 13 November 2012, the Respondent was arrested in relation to this matter and was taken to the Castle Hill Police Station where he declined to participate in an interview after receiving legal advice. He provided a DNA sample by way of a buccal swab. Police seized the Respondent’s mobile phone and he was charged.

Count 1 - Aggravated Filming of a Person in a Private Act Between 4 - 6 April 2012

31. Police examined the Respondent’s mobile phone and discovered a video file that contained video footage of “Kate” sitting on the toilet. The time/date stamp on the file showed it was recorded at 4.23 pm on 5 April 2012.

32. The footage showed the Respondent walking into the female toilets at Oakhill Drive Public School. He then held the camera over the top of the toilet door and filmed inside the cubicle. “Kate” was sitting on the toilet with her dress pulled up and her underwear pulled down. It was clear that “Kate” was unaware that she was being filmed.

33. As “Kate” finished going to the toilet, the Respondent walked out of the toilets and the recording ended.

Entry of Pleas of Guilty in Local Court

34. Following his arrest and charging on 13 November 2012, the Respondent was refused bail and remained in custody until his release on conditional bail on 22 November 2012.

35. After a period of time between November 2012 and March 2014, during which the Respondent indicated that the charges against him were to be defended, he entered a plea of guilty to the present charges based on the above facts in the Parramatta Local Court on 17 March 2014.

The Respondent’s Subjective Circumstances

36. The Respondent was aged 27 years at the time of the offences and 29 years at the date of sentence. He had no prior criminal history.

37. The Respondent gave evidence at the sentencing hearing as did the Reverend Dr Peter Powell, a psychologist who conducts the Pastoral Counselling Institute.

38. A presentence report of Ms Vivienne Weir dated 15 August 2014 was tendered together with a report of Mr Neil Ballardie, psychologist, dated 19 July 2014 and a report of the Reverend Dr Powell dated 25 October 2014.

39. The presentence report described the Respondent’s childhood and family situation as turbulent. He completed Year 11 at school and, after leaving high school, had been employed in a number of different jobs. The Respondent commenced working in childcare in 2006, continuing in that capacity for the six-year period until the present charges led to the cessation of his employment in October 2012. Since that time, the Respondent had been working for a company supplying food products to a major supermarket chain.

40. At the time of the presentence report, the Respondent had participated in 10 private psychological counselling sessions, in addition to commencing an intensive three-year sex offender program to address his offending behaviour.

41. Mr Ballardie recorded that the Respondent had real difficulties in establishing appropriate relationships with girls due to difficulties he had faced throughout his formative years and during his schooling. The Respondent told Mr Ballardie that he believed that he was encouraging an emotional relationship with the victim, which he conceded was highly inappropriate, and that led him to offend.

42. Mr Ballardie considered the Respondent to be emotionally naïve and underdeveloped. He had poor self-esteem and persisting negative ideations. He felt isolated and self-conscious in situations where he may engage with potential peer sexual partners, which was compounded by the Respondent’s excessive weight. Mr Ballardie considered that the Respondent’s dysfunctional relationship with his parents, and other aspects of his upbringing, impacted on him emotionally during a critical age of development. Mr Ballardie considered that the Respondent’s explanation of engaging in an emotional relationship with the victim was partly explained by his general lack of emotional and sexual engagement and attachment to his female peers.

43. In his first report, Mr Ballardie said that the Respondent had, in February 2014, scored in the extreme range for stress and depression and in the high range of anxiety. He had some suicidal ideation, but Mr Ballardie did not consider that he was a high risk of danger to himself.

44. In a further report dated 22 October 2014, Mr Ballardie noted that the Respondent no longer had suicidal ideation.

45. Mr Ballardie noted the Respondent’s continuation in a sex-offender’s treatment program and expressed the view that the Respondent was genuine in his remorse and was highly unlikely to reoffend. Similar conclusions were expressed in the report and evidence of the Reverend Dr Powell.

46. In his evidence, the Respondent said that he had had a problem with his weight since he was 10 years old. He said that he suffered from haemochromatosis, which is a surplus of iron in the blood, which caused fatigue. He also suffered from chronic asthma.

The Remarks on Sentence

47. The sentencing Judge commenced his remarks on sentence with references to the charges, maximum penalties and applicable standard non-parole periods.

48. His Honour described the offence giving rise to Count 1 and then said (ROS3/AB8):

“Although this was of itself an undoubtedly disgraceful act, the filming offence was of a markedly lesser order of criminality than the succeeding offences. However, it preceded a course of conduct against the victim in which there is an identifiable escalation in criminality particularly in the fact that the offending continued even after some, as it appears, at least inappropriate aspects of his behaviour towards the victim had come under notice. Although he was subject to a warning he persisted in what was in fact serious criminal conduct.”

49. The sentencing Judge referred to the Respondent’s evidence that, at the time of this offence, he had visited the toilets to check on “Kate’s” welfare. His Honour said (ROS4/AB9):

“However, in the course of his evidence the offender admitted that such an explanation included a degree of self-deception, as he now concedes that his motive in going to the toilet block was that he wanted to see the victim, as he put it, ‘in a vulnerable act’.

There is certainly no rational explanation nor a decent one at all for filming the victim. It was an act that constituted a gross interference with the little girl's privacy and dignity and it was committed by a person entrusted with her care.”

50. The sentencing Judge recited the facts surrounding the three aggravated indecent assault offences and the subsequent reporting of the offences to the authorities. His Honour accepted that the Respondent was in a state of despair following his arrest and charging and loss of employment, and that he had suicidal thoughts and was admitted to a psychiatric unit at Hornsby Hospital for one week.

51. It was noted that, although there had been delay between November 2012 and March 2014, the Crown had conceded that the Respondent’s pleas of guilty were entered at the earliest opportunity in the circumstances (ROS9/AB14).

52. The sentencing Judge found that the offences revealed “aspects of some escalation in the acts following the commencement of impropriety towards the victim with the initial filming incident, an incident that typified, one must observe, a certain brazenness” (ROS9/AB14).

53. His Honour turned to an assessment of the objective seriousness of the offences (ROS9-10/AB14-15):

“As to the first of the offences I would have regarded it, if assessed in isolation, as an act of unpleasant voyeurism probably at the lower end of the scale, however what followed in the commission of aggravated indecent assaults was much more serious.

The first indecent aggravated offence might have been the point at which the offender, having been frightened by the disaster he knew plainly that he was courting, might have desisted; he did not desist, in fact no doubt tempted or comforted by the fact that he knew [the victim’s] mother and that she had not taken the matter further he was not deterred.

The next offence was on the occasion when [the victim] was also rendered even more vulnerable by her own unwell state, of which the offender was well aware. Finally, there is the last offence which in particular is marked by the offender's persistence in what he knew had at least been perceived by others as inappropriate contact with the child. In fact, that perception was a mild one compared with the reality of what had been happening, which in each instance was a plainly criminal act of interference committed upon a vulnerable child.

The offender, after having almost been caught in the act as it were in the second of the aggravated sexual assaults, proceeded even further persisting.

This renders his awareness arising from the warning in particular as an aggravating circumstance. As a consequence, I regard it as appropriate to treat the last offence as the culmination of individual acts that amounted to a course of escalating offending. As such, I assess the last offence as being above the mid-level of seriousness and forming part of a body of offending which in totality reaches a point constituting a grave breach of trust. As to that trust, one aspect is that placed in those who are specifically given the professional care of a child. That trust is in addition to the basic obligation of decency and care owed by any adult towards any child in their care. Any offending of the present kind is harmful, both for the individual child and to society, where it is now an essential part of its working that there is an ability to place trust upon those who are given the responsibility of being professional carers or teachers, particularly of very young and vulnerable children.”

54. “Kate” had made a victim impact statement, which she read personally by way of audio-visual link at the sentencing hearing. His Honour referred to this statement (ROS11/AB16):

“I have in the present instance taken due account of the victim impact statement that was read by the victim by the way of an AVL transmission. Although it was apparent that the statement was a prepared one and the victim read it with some commendable calm I might say, I also accept and acknowledge that she has suffered a good deal of distress and has, as the content of her statement indicated, had her confidence and trust in adults badly shaken.

I note that in the course of her statement she recorded a complaint of having had migraines and other physical problems. Those matters I approach with some care. I do not regard it as appropriate to sheet home those matters to the offender as harm of an additional kind over and above the level of harm that is inherent in any offending that entails the betrayal of trust by a carer or teacher, particularly one known very well to the child concerned. The harm of that kind is of a more than sufficient evil.”

55. The sentencing Judge outlined the Respondent’s subjective circumstances, including references to the various reports before the court on sentence. His Honour dealt with the Respondent’s explanation for the offences in the following way (ROS16/AB21):

“The explanation for the current offending as given by the offender is one I infer to have arisen from the development of an inappropriate emotional relationship with the victim. The particular offences, as explained by the offender himself, are depicted as incidents that arose without any planning or particular intent to engage in sexual behaviours. The offender told Mr Ballardie that he believes that he was encouraging an emotional relationship with the victim which was in fact highly inappropriate and that led him to offending. I also infer from the history of the offending as given to Mr Ballardie that there is a strong suggestion that initially at least it was a hunger for affection and physical contact rather than any sexual motivation that promoted the offender's otherwise inexplicable risk taking in the present offences, at least when he picked the child up. That was something that was of itself inappropriate in the circumstances, even if it went no further.”

56. With respect to the Respondent’s prior good character, his Honour said (ROS17/AB22):

“It is appropriate that I note and give weight to the fact that the offender has no prior contact with the criminal justice system. Similarly, that he is a person of prior good character. Having said that, those factors of good character are often present in matters of the present kind. Consequently their overall impact is not as great as it might be in the instance of other kinds of offending.”

57. His Honour stated that he was “mindful of acute tension between the offender’s strong and significant subjective case and the other matters that are to be considered” (ROS18/AB23). His Honour referred to the importance of specific and general deterrence in cases of this type and the need to “be vigilant to dispel any notion that the presentation of a strong, even compelling, personal case might result in a sentence that does not reflect the objective seriousness and result in a sentence less than the bare minimum required to meet that seriousness’ (ROS19/AB24).

58. His Honour continued (ROS19/AB24):

“Offences of the present kind, and I refer particularly to the aggravated sexual assaults, are relatively easy to commit. There also needs to be a powerful sense of assurance in the community that people who are given the care of young children should be fully aware of the risk they run if they breach the trust placed in them. Any sentence imposed in respect of these offences must include a clear message directed to people tempted to offend in this way.”

59. The sentencing Judge proceeded to explain that a sentence of full-time imprisonment was the only appropriate sentencing alternative in this case (ROS19-20/AB24-25).

60. His Honour determined to proceed by way of an aggregate sentence, with a finding of special circumstances to be made (ROS20/AB25):

“In the circumstances of this offender and given his particular level of vulnerability, I find that it will add a measure of extra hardship to his imprisonment and I have taken that into account. I have determined that the appropriate mode of sentencing will be by way of an aggregate sentence. That sentence will reflect a finding of special circumstances that is made on the basis of some implicit accumulation that will be part of the aggregate sentence and also by reason of my view that the offender will require a longer period of supervision than would be the case if the normal ratio of 75% between the non-parole period and overall sentence was to be maintained.”

61. The indicative sentences referred to earlier (at [5]) were then stated, followed by the imposition of the aggregate sentence involving a non-parole period of eight months and a balance of term of eight months.

The Crown’s Ground of Appeal

62. The Crown relied upon a single ground of appeal particularised in the following way - the aggregate head sentence and the aggregate non-parole period are each manifestly inadequate in that:

1. they are plainly unjust, being so far below the range of sentences that could justly be imposed;

2. the sentencing Judge erred in law by failing to give effect to his stated intention to apply the principles in Pearce v The Queen [1998] HCA 57; 194 CLR 610, in that the aggregate sentence imposed by his Honour does not reflect the total criminality of the Respondent, and does not reflect any or any appropriate degree of accumulation for multiple offences which escalated in objective seriousness over a period of seven months.

Claim of Manifest Inadequacy

63. The propositions contained within the ground of appeal may be considered at the same time.

Crown Submissions

64. The Crown did not contend that there was express error in the remarks on sentence, but rather that the aggregate sentence imposed was manifestly inadequate, being an entirely inadequate response to the findings made by the sentencing Judge and on the application of relevant principles.

65. The Crown submitted that the findings of the sentencing Judge indicated a strong need for personal deterrence and the protection of the community, which was then not reflected in the aggregate sentence imposed.

66. Further, it was submitted that the aggregate sentence imposed only slightly exceeded the indicative sentence on Count 4, so that the conclusion ought be reached that there was in reality no degree of accumulation for the earlier serious offences.

67. Having determined upon an aggregate sentence which the Crown says was flawed in this way, his Honour then proceeded to make a finding of special circumstances thereby reducing the non-parole period to 50% of the head sentence of 16 months.

68. The Crown submitted that the process involved led to a clearly inadequate aggregate sentence for the Respondent’s objectively serious crimes.

The Respondent’s Submissions

69. Ms Burgess, counsel for the Respondent, submitted that the sentencing Judge did not err either in the approach to the determination of sentences or in the consideration of factors relevant to sentence.

70. It was submitted that the sentencing exercise lay within the discretion of the sentencing Judge and that the Respondent’s strong subjective case was taken into account, but in a way which still left the Respondent serving a period of full-time imprisonment.

71. It was submitted for the Respondent that the sentence imposed was not manifestly inadequate.

Determination

72. An appeal to this Court with respect to an aggregate sentence is directed to that sentence, and not the indicative sentences relating to each offence: Truong v R [2013] NSWCCA 36 at [227]; JM v R [2014] NSWCCA 297 at [40] (paragraph 11).

73. It is for the Crown to demonstrate that the aggregate sentence imposed in this case was unreasonable or plainly unjust: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 370-371 [25].

74. The gist of the Crown appeal is that there is a substantial disconnect between the findings made in the remarks on sentence and the aggregate sentence actually imposed. To test this proposition, it is appropriate to refer to a number of features of the case.

75. Count 1 was an offence under s.91K(3) Crimes Act 1900. Section 91K(3) and (4) provide as follows:

“91K Filming a person engaged in private act

…

(3)    Aggravated offence

A person who, for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, films another person who is engaged in a private act:

(a) without the consent of the person being filmed to being filmed for that purpose, and

(b) knowing that the person being filmed does not consent to being filmed for that purpose, and

(c) in circumstances of aggravation,

is guilty of an offence.

Maximum penalty: imprisonment for 5 years.

(4)    In this section, circumstances of aggravation means circumstances in which:

(a)    the person whom the offender filmed was a child under the age of 16 years, or

(b)    the offender constructed or adapted the fabric of any building for the purpose of facilitating the commission of the offence.”

76. Section 91I(2) provides that a person is “engaged in a private act” if:

“(a)    the person is in a state of undress, using the toilet, showering or bathing, engaged in a sexual act of a kind not ordinarily done in public, or engaged in any other like activity, and

(b)    the circumstances are such that a reasonable person would reasonably expect to be afforded privacy.”

77. Offences now contained in s.91K were introduced by the Crimes Amendment (Sexual Offences) Act 2008. In the second reading speech with respect to that legislation, the Attorney General, Mr Hatzistergos, said concerning offences under s.91K (Hansard, Legislative Council, 26 November 2008):

“The bill also introduces new voyeurism offences. The new offences provide for a maximum penalty of two years imprisonment for observing or filming, for the purposes of obtaining sexual arousal or gratification, a person who is engaged in a private act. A ‘private act’ includes a situation in which a person is undressing - for example, in a changing room - or using a toilet, showering or bathing, or during a sexual act, and in circumstances when he or she would reasonably have expected to be afforded privacy. The aggravated version of the offence provides a maximum five-year penalty when the person being observed or filmed is under the age 16, or if the offender altered the fabric of the building in order to observe the person. This covers situations in which an offender may have constructed a peephole in order to observe someone in a changing room or a toilet.

The bill further creates a new offence of filming a person's private parts, which criminalises the filming of a person's private parts in circumstances when he or she can reasonably expect not to be filmed. This captures such behaviours known as upskirting, which involves filming up a person's skirt for the purposes of obtaining sexual arousal or gratification. However, it will also cover situations in which a person's private parts are filmed when the person is engaged in a usually private act, but not necessarily in a private place, such as a public urinal. This surreptitious filming of people without their consent has become prevalent with the emergence of new technologies that allow anyone with a mobile phone to film another person without that person's consent, in inappropriate circumstances. It is important to send a clear message that such behaviour is not acceptable and will be taken very seriously by the courts.”

78. It may be seen that the offence in Count 1 is serious in itself, but that a number of features serve to further aggravate it. Firstly, “Kate” was eight years old, being half the age limit of 16 years contained in s.91K(4)(a) which rendered this offence an aggravated one. Secondly, the offence was committed by a childcare worker, inside the female toilet at the childcare premises, in circumstances where he was entrusted with the care and protection of the child who was filmed. On its own, this was a serious example of an aggravated offence under s.91K(3) of the Act.

79. The observation of the sentencing Judge that Count 1, if assessed in isolation, involved “an act of unpleasant voyeurism probably at the lower end of the scale” (at [53] above) was unduly favourable to the Respondent in the circumstances of this case.

80. The aggravated indecent assault offences which constituted the three remaining counts were offences under s.61M(2) Crimes Act 1900. Section 61M is in the following terms:

“61M    Aggravated indecent assault

(1)    Any person who assaults another person in circumstances of aggravation, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 7 years.

(2)    Any person who assaults another person, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 10 years, if the other person is under the age of 16 years.

(3) In this section, circumstances of aggravation means circumstances in which:

(a)    the alleged offender is in the company of another person or persons, or

(b)    (Repealed)

(c)    the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or

(d)    the alleged victim has a serious physical disability, or

(e)    the alleged victim has a cognitive impairment.”

81. It will be observed that the Respondent’s offences were under s.61M(2), being aggravated offences by reason only of the age of the victim. “Kate” was eight years of age, being half the relevant limit of 16 years contained within that provision.

82. Where a s.61M(2) offence is committed against a child in circumstances where the offender abused a position of trust or authority in relation to the victim, a significant additional aggravating factor applies on sentence by operation of s.21A(2)(k) Crimes (Sentencing Procedure) Act 1999: Corby v R [2010] NSWCCA 146 at [73].

83. There is a further feature which operates against the Respondent on sentence in this case. Section 21A(5A) Crimes (Sentencing Procedure) Act 1999 is in the following terms:

“(5A)    Special rules for child sexual offences

In determining the appropriate sentence for a child sexual offence, the good character or lack of previous convictions of an offender is not to be taken into account as a mitigating factor if the court is satisfied that the factor concerned was of assistance to the offender in the commission of the offence.”

84. The term “child sexual offence”, as used in s.21A(5A), includes offences under s.61M (where the person against whom the offence was committed was under the age of 16 years) and offences under s.91K (where the person who was being filmed was then under the age of 16 years): s.21A(6). Accordingly, all of the Respondent’s offences fell within the definition of “child sexual offence”.

85. Section 21A(5A) was also introduced by the Crimes Amendment (Sexual Offences) Act 2008. In the second reading speech, the Attorney General said with respect to this provision (Hansard, Legislative Council, 26 November 2008):

“The bill also makes important changes to the Crimes (Sentencing Procedure) Act 1999 to ensure that when sentencing an offender for a child sexual offence the court is not to take into account the offender's prior good character or lack of previous convictions if that factor was of assistance to the offender in the commission of the offence. The simple fact of a person's clean record and good character may assist an offender to gain the trust of the child, or the child's parents, in order to commit a sexual offence against the child. Any offender who has misused his or her perceived trustworthiness and honesty in this way cannot use his or her good character and clean record as a mitigating factor in sentencing.”

86. Counsel for the Crown and the Respondent accepted in this Court that s.21A(5A) applied in the circumstances of this case where the Respondent was working as a childcare worker. It may be accepted that the Respondent’s prior good character assisted him to hold the position of childcare worker, which he abused by the offences committed against the victim: R v Lord [2013] NSWDC 16 at [158], [160]. Although there may be circumstances where s.21A(5A) has no application (see, for example, AH v R [2015] NSWCCA 51), the present case falls squarely within the terms of that provision.

87. In these circumstances, the approach adopted by the sentencing Judge with respect to the Respondent’s prior good character (see [56] above), was unduly favourable to the Respondent. The Respondent’s prior good character and lack of prior convictions were not to be taken into account at all as a mitigating factor.

88. A further aspect which bore significantly upon sentence in this case was the existence of a standard non-parole period of eight years (as against a maximum penalty of 10 years) with respect to each of the three s.61M(2) offences. The unusual relationship between these two periods has been the subject of comment by this Court in a number of cases.

89. In Corby v R, with the agreement of Beazley JA (as her Honour then was) and Kirby J, I said at [69]-[71]:

“69    An offence under s.61M(2) carries a maximum penalty of 10 years’ imprisonment and a standard non-parole period of eight years. The oddity of this situation was noted by the New South Wales Sentencing Council in its report ‘Penalties Relating to Sexual Assault Offences in New South Wales’, Vol 1, August 2008, page 56, at paragraph 3.47:

‘Recently, the SNPP for a s 61M(2) offence was increased to 8 years. This amendment has, however, had the effect of precluding the setting of an additional term under s 44 of the Act of one third of the NPP, for the simple reason that the resulting sentence would exceed the maximum sentence by eight months. The 8 year SNPP exceeds the two-thirds worst case scenario of 7 years 6 months, by six months.’

70    The New South Wales Sentencing Council returned to this topic at paragraphs 3.65 (page 63) and 3.68 (pages 64-65) of that report, before suggesting that consideration be given to a number of changes, including (page 69):

‘Giving consideration at the time of any wholesale review of the Crimes (Sentencing Procedure) Act 1999 (NSW) to standardising the SNPPs for sexual (and other) of sentences within a band of 40-60% of the available maximum penalty, subject to the possibility of individual exceptions, by reference to an assessment of the incidence of off ending and special considerations relating thereto.’

71    This Court has adverted to the ‘somewhat curious and inconsistent approach of the legislature’ in the specification of standard non-parole periods for certain offences, where the standard non-parole period is not too distant from the maximum penalty for the offence: R v Dagwell [2006] NSWCCA 98 at [38]. Although it is difficult to reconcile the two statutory guideposts in the form of the maximum penalty and the standard non-parole period for a s.61M(2) offence, it remains the position that the legislature has made statutory provision for a standard non-parole period and that it is necessary for sentencing courts to give proper attention to the standard non-parole period, particularly when the term of that period approaches the maximum term provided for the offence: Hudson v R [2008] NSWCCA 90 at [28].”

90. Accordingly, it remains necessary for sentencing courts to give proper attention to the standard non-parole period in passing sentence for offences under s.61M(2).

91. Each of Counts 2, 3 and 4 had a maximum penalty of 10 years’ imprisonment and a standard non-parole period of eight years. It is difficult to see how the standard non-parole period played any real part as a sentencing guidepost in accordance with the principles in Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at 132 [27] in the sentencing of the Respondent.

92. The Respondent committed a number of serious offences against “Kate” over a period of months. All offences were committed in circumstances where he was in a position of trust, with the responsibility to care for and protect the young children at the childcare centre, including “Kate”.

93. The system of childcare, now widely utilised in the Australian community, depends upon persons in positions of trust and authority not abusing that position. What the Respondent did in this case involved serious, repeated and escalating criminal conduct against a young girl in his care.

94. The victim impact statement made by “Kate” adverted to the effects of the offences upon her, including confusion, anger, fear, loneliness and a lack of trust of others, as well as intrusive memories of the offences. It must be kept in mind that she was only 10 years old when this statement was made. The long-term consequences of these offences cannot be quantified at this time, but the Court should proceed upon the basis that there will be damaging consequences flowing from the Respondent’s acts.

95. In R v Gavel [2014] NSWCCA 56, this Court said at [110]:

“This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the ‘long term and serious harm, both physical and psychological, which premature sexual activity can do’. The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368-372 [26]-[39].”

96. Child victims are especially vulnerable. It is important that sentences passed for sexual offences committed against child victims recognise the harm done to the victim of the crime: s.3A(g) Crimes (Sentencing Procedure) Act 1999.

97. These were repeated offences committed against the same victim over a period of some months.

98. The Respondent’s subjective circumstances were to be considered without regard to his prior good character: s.21A(5A) Crimes (Sentencing Procedure) Act 1999. He had significant health issues, including haemochromatosis. However, his health difficulties had not interfered with his capacity to hold down a responsible position as supervisor at the child care centre.

99. The Respondent had taken significant steps towards his rehabilitation and was entitled to have that taken into account on sentence.

100. A somewhat puzzling feature of the case is the failure of the victim’s mother, and the paediatrician who was consulted, to take prompt action to report “Kate’s” complaints to the relevant authorities. When that was finally done, prompt action was taken. Whatever else may be said about this aspect, it cannot be said that it assists the Respondent on sentence. He had come under a form of notice and had received a type of warning, but he persisted with the final (and most serious) offence committed on 26 October 2012.

101. The clearest measure of manifest inadequacy is that the aggregate sentence of 16 months exceeded by only one month the indicative sentence for Count 4. There has been a failure to have proper regard to the first, second and third offences, in considering the application of Pearce v The Queen, and associated issues of accumulation, concurrency and totality, for the purpose of determining the aggregate sentence. As a result, the aggregate sentence falls far short of reflecting the total criminality involved in the Respondent’s offences. This aspect operates to confirm the manifestly inadequate aggregate sentence imposed upon the Respondent.

102. The sentencing Judge’s remarks on sentence encapsulate appropriate findings, subject to the two areas referred to earlier (at [79] and [87]). However, there is a substantial disconnect between those findings and the aggregate sentence imposed. The Crown has demonstrated that the sentence imposed represented a “substantial wrong”: House v The King [1936] HCA 40; 55 CLR 499 at 505.

103. I am satisfied that what were thought to be persuasive subjective considerations have unduly overshadowed the substantial objective gravity of these crimes, with the result that there has been a clear failure to ensure reasonable proportionality between the seriousness of the offences and the sentence imposed: R v Dodd (1991) 57 A Crim R 349 at 354.

104. The Crown has made good its claim that the aggregate sentence imposed was manifestly inadequate.

Should the Discretion to Resentence the Respondent be Exercised?

105. The Crown has established error. It remains incumbent on the Crown to demonstrate that the discretion to resentence the Respondent should be exercised: CMB v Attorney General for New South Wales [2015] HCA 9; 89 ALJR 407 at 415 [33]-[34].

106. The Crown submitted that the Court should proceed to resentence the Respondent .

107. Further evidence was placed before this Court by Ms Burgess concerning the position of the Respondent since sentence was imposed. An affidavit of the Respondent sworn 8 May 2015 was read, together with an affidavit of his solicitor, Kerry Ann Robinson affirmed 15 May 2015. This evidence was relied upon by the Respondent with respect to the exercise of the residual discretion and, if the Court moved to resentence the Respondent, on resentencing.

108. The affidavit of the Respondent outlined his shock at learning of the Crown appeal, together with a number of difficult experiences he has had in custody. The Respondent requires venesection (regular blood extractions) as treatment for haemochromatosis. The need for this procedure has given rise to some difficulties in custody although, on 29 April 2015, the Respondent was moved to the MSPC Long Bay and was classified C2 MSPC on medical hold. It appears that this transfer has provided a measure of stability for his treatment in custody.

109. The affidavit of Ms Robinson attaches records evidencing the Respondent’s threats of self-harm following notification to him of the Crown appeal. A report of Dr Toby Nasr dated 7 May 2015 is attached to the affidavit of Ms Robinson. Dr Nasr’s report concerns the treatment of the Respondent’s haemochromatosis.

110. There was some delay between the sentencing of the Respondent on 28 November 2014 and the filing of the Notice of Appeal on 19 January 2015. Given the time of year, some allowance can be made for this delay. In my view, this is not delay of a type which operates in any significant way against the Crown on the issue of discretion.

111. The Crown maintained at first instance that full-time custodial sentences were appropriate in this case. Nothing said by the Crown at first instance can be said to have led the sentencing Judge into error.

112. It is appropriate to have regard to the actual stress and anxiety triggered in the Respondent as a result of notification of the Crown appeal. It is appropriate to take into account as well the evidence of the Respondent’s post-sentence experiences in custody.

113. It has been said that the primary purpose of Crown appeals is to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at 465-466 [1]-[2].

114. I have reached the clear view that the aggregate sentence imposed in this case was manifestly inadequate. For reasons already expressed, these were serious offences committed against a young child by a person in a position of trust and authority.

115. It is in the public interest that an appropriate sentence be imposed upon the Respondent, given the clearly erroneous sentence imposed at first instance. An important part of the jurisdiction to hear Crown appeals is to ensure that there will be uniformity of sentencing, which is of great importance in maintaining public confidence in the administration of justice.

116. In Everett v The Queen [1994] HCA 49; 181 CLR 295, McHugh J said at 306:

“Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction. Sentences that are higher than usual create justifiable grievances in those who receive them. But inadequate sentences also give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public. Inadequate sentences are also likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice.”

117. The present judgment will serve to lay down or emphasise a number of sentencing principles. However, it is appropriate for the Court to proceed to resentence the Respondent. This will serve to maintain public confidence in the due administration of justice.

118. The Crown has demonstrated that it is appropriate for the Court to resentence the Respondent in this case.

119. Factors bearing upon the objective seriousness of these offences, and the Respondent’s subjective circumstances, have been touched upon at various points in this judgment. It is not necessary to repeat them.

120. Reference should be made to a submission advanced for the Respondent that, in some way, the theoretical possibility that offences under s.61M(2) and 91K may be disposed of summarily could be taken into account by this Court in the Respondent’s favour in the event that he is resentenced. At the outset, it should be observed that no argument of this sort was advanced at first instance: Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at 476 [70]ff. In any event, it is not realistic to consider that the Respondent’s offences, committed against this victim in breach of his position of trust, could ever realistically have been considered as appropriate candidates for summary disposal. This aspect provides no assistance to the Respondent on resentencing before this Court.

121. In having regard to the Respondent’s subjective circumstances, I have not treated his prior good character not being a mitigating factor in compliance with s.21A(5A) Crimes (Sentencing Procedure) Act 1999.

122. I take into account the hardship being experienced (and likely to be experienced) by the Respondent in custody arising from his health problems.

123. The sentencing of the Respondent must reflect each of the purposes of sentencing contained in s.3A Crimes (Sentencing Procedure) Act 1999:

“3A    Purposes of sentencing

The purposes for which a court may impose a sentence on an offender are as follows:

(a)    to ensure that the offender is adequately punished for the offence,

(b)    to prevent crime by deterring the offender and other persons from committing similar offences,

(c)    to protect the community from the offender,

(d)    to promote the rehabilitation of the offender,

(e)    to make the offender accountable for his or her actions,

(f)    to denounce the conduct of the offender,

(g)    to recognise the harm done to the victim of the crime and the community.”

The need for adequate punishment, general deterrence and denunciation have particular significance in this case, together with the need to recognise the harm done to the victim and the community.

124. In determining to resentence the Respondent, it is appropriate to proceed again by way of aggregate sentence. In adopting this approach, it is necessary to comply with s.53A(2) Crimes (Sentencing Procedure) Act 1999 by indicating the sentence that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence. With respect to Counts 2, 3 and 4, each of which carries a standard non-parole period, it is necessary for the Court to indicate the non-parole period that would have been set for each offence if a separate sentence had been imposed: s.54B(4) Crimes (Sentencing Procedure) Act 1999.

125. The 25% discount for the Respondent’s pleas of guilty should be applied with respect to each indicative sentence.

126. Having regard to the objective seriousness of each offence, the guideposts applicable in the form of the maximum penalty and standard non-parole period (for Counts 2, 3 and 4), and the subjective circumstances of the Respondent, the indicative sentences to be applied are as follows:

1. with respect to Count 1, imprisonment for nine months;

2. with respect to Count 2, imprisonment comprising a non-parole period of 10 months with a balance of term of five months;

3. with respect to Count 3, imprisonment comprising a non-parole period of 12 months with a balance of term of six months;

4. with respect to Count 4, imprisonment comprising a non-parole period of 18 months with a balance of term of nine months.

127. The indicative sentences for Counts 2, 3 and 4 reflect a finding of special circumstances (see [130] below).

128. Having determined indicative sentences, it is necessary for the Court to consider notional issues of accumulation, concurrency and totality for the purpose of reaching the aggregate sentence to be imposed. Consideration will be given to the existence of special circumstances in fixing a non-parole period for the aggregate sentence.

129. Having considered issues of accumulation, concurrency and totality, I am satisfied that an aggregate head sentence of four years’ imprisonment should be fixed.

130. I find special circumstances by reference to the Respondent’s increased hardship in custody resulting from his health problems, together with the need for a longer period of supervised liberty on parole to assist his return to the community. A non-parole period of two years and six months should be set.

131. A non-parole period of two years and six months represents the minimum period for which the Respondent should be imprisoned to properly reflect the gravity of his offences and the manifold purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at 717 [59].

132. The sentences should date from 19 November 2014, to take into account the nine-day period when the Respondent was in custody, bail refused, following his arrest.

133. I propose the following orders:

1. Crown appeal allowed;

2. sentence imposed at the Parramatta District Court on 28 November 2014 is set aside;

3. in its place, the Respondent is sentenced to an aggregate sentence of imprisonment comprising a non-parole period of two years and six months commencing on 19 November 2014 and expiring on 18 May 2017, with a balance of term of one year and six months commencing on 19 May 2017 and concluding on 18 November 2018;

4. the earliest date upon which the Respondent will be eligible for release on parole is 19 May 2017.

134. BEECH-JONES J: I agree with the reasons of Johnson J and the orders His Honour proposes.

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Decision last updated: 03 July 2015