TM v R

[2018] NSWCCA 88

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	TM v R [2018] NSWCCA 88
Hearing dates:	2 May 2018
Date of orders:	11 May 2018
Decision date:	11 May 2018
Before:	Hoeben CJ at CL at [1]; Walton J at [81]; R A Hulme J at [82]
Decision:	(1)   An extension of time within which to bring the application for leave to appeal against sentence is granted. (2)   Leave to appeal against sentence is granted. (3)   The appeal is dismissed.
Catchwords:	CRIMINAL LAW – sentence appeal – filming private acts without consent in circumstances of aggravation – 10 counts with 14 counts on a Form 1 – offences committed over a 7 year period – 8 victims – victims aged generally between 14 and 16 – covert filming of young girls showering, changing and toileting – significant breach of trust – fact that offending could have been more serious not a matter of mitigation – sentence not manifestly excessive – appeal dismissed.
Legislation Cited:	Crimes Act 1900 (NSW) – ss 91G(1)(a), 91G(2)(a), 91K(3), 91L(3), 61M(2) Crimes (Sentencing Procedure) Act 1999 (NSW) – ss 21A(2)(m), 33
Cases Cited:	AB v The Queen [1999] HCA 46; 198 CLR 111 Azzopardi v The Queen; Baltatzis v The Queen; Gabriel v The Queen [2011] VSCA 372; 219 A Crim R 369 Baines v R [2016] NSWCCA 132 Bamblett v R [2013] NSWCCA 161 Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Elsaj v R [2017] NSWCCA 124 Elias v The Queen; Issa v The Queen [2013] HCA 31; 248 CLR 483 Faehringer v R [2017] NSWCCA 248 Greenwood v Regina [2014] NSWCCA 64 Hoskins v R [2015] NSWCCA 245 Hughes v R [2018] NSWCCA 2 Mammone v R [2013] NSWCCA 95 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Mills v R [2017] NSWCCA 87 Obeid v R [2017] NSWCCA 221 Pearce v The Queen [1998] HCA 57; 194 CLR 610 PG v R [2017] NSWCCA 179 R v CTG [2017] NSWCCA 163 R v Cahill [2015] NSWCCA 53 R v Van Ryn [2016] NSWCCA 1 Saddler v R [2009] NSWCCA 83; 194 A Crim R 452 Vaiusu v R [2017] NSWCCA 71
Category:	Principal judgment
Parties:	TM – Applicant Regina – Respondent Crown
Representation:	Counsel: S Kluss – Applicant NJ Adams – Respondent Crown   Solicitors: Ross Hill & Associate – Applicant Solicitor for Public Prosecutions – Respondent Crown
File Number(s):	2016/018443
Publication restriction:	Non-publication order re the identity of the complainants.
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Date of Decision: 15 June 2017 Before: Frearson SC DCJ File Number(s): 2016/018443

Judgment

1. HOEBEN CJ at CL:

Offences and sentence

The applicant pleaded guilty in the Local Court to the following charges:

• Four counts of filming a person in a private act without consent in circumstances of aggravation, contrary to s 91K(3) of the Crimes Act 1900 (NSW) which carries a maximum penalty of imprisonment for 5 years (Counts 1, 2, 8 and 9).

• Three counts of filming a person’s private parts without consent in circumstances of aggravation, contrary to s 91L(3) of the Crimes Act which carries a maximum penalty of imprisonment for 5 years (Counts 5, 6 and 7).

• Two counts of using a child over 14 years of age to make child abuse material, contrary to s 91G(2)(a) of the Crimes Act which carries a maximum penalty of imprisonment for 10 years (Counts 3 and 4).

• One count of using a child under 14 years of age to make child abuse material, contrary to s 91G(1)(a) of the Crimes Act which carries a maximum penalty of imprisonment for 14 years (Count 10).

2. There is no standard non-parole period applicable to any of the offences.

3. Pursuant to s 33 Crimes (Sentencing Procedure) Act1999 (NSW) (the Act) the applicant asked the Court to take into account when sentencing him, a further 14 offences, namely:

• Three offences of aggravated film person in private act without consent, contrary to s 91K(3), relating to Count 2;

• Five offences of aggravated film person’s private parts without consent, contrary to s 91L(3), relating to Count 5;

• Two offences of aggravated film person in private act without consent, contrary to s 91K(3), relating to Count 5;

• One offence of aggravated film person's private parts without consent, contrary to s 91L(3), relating to Count 7;

• Three offences of use a child under 14 years of age to make child abuse material, contrary to s 91G(1)(a), relating to Count 10.

4. On 15 June 2017 the applicant was sentenced to an aggregate term of imprisonment of 6 years with a non-parole period of 3½ years, commencing 15 June 2017 and expiring 14 December 2020 with the balance of term expiring 14 June 2023. There was a finding of special circumstances with a resultant ratio of the aggregate non-parole period to the total term of 58.3 per cent.

5. For ease of reference, the following chart sets out particulars of the offences and Form 1 offences for which the applicant was sentenced and the indicative sentences in respect of each.

COUNT	PARTICULARS	MAXIMUM PENALTY	INDICATED SENTENCE
Count 2 Aggravated film person in private act without consent [s.91K(3)] + Form 1 offences: 3xs.91K(3)	TB Between 1/01/09 & 31/12/09 at High Range 14 years of age on 21/02/09 Daughter of applicant's ex de facto partner, VS. 24 minute video of victim showering and changing in bathroom, recording captures her breasts and genital areas (ROS 4.16). Form 1 offences:The applicant also carried out similar acts of offending on three other occasions from January 2007 to December 2009 (ROS 4.24)	5 years	16 months
Count 1 Aggravated film person in private act without consent [s.91K(3)]	JC Between 1/01/09 & 31/12/09 at High Range 14 years of age on 17/11 /08 Friend of TB. 12 minute video of victim showering and changing in bathroom, recording captures her breasts and genital areas (ROS 4.16).	5 years	10 months
Count 3 Use a child over 14 years of age to make child abuse material [s.91G(2)(a)]	MW Between 1/08/11 and 30/09/13 at Mittagong 14 years of age on 20/01/12 Daughter of applicant's ex de facto partner, SW. Hard drive recording depicting victim changing and showering in bathroom. The recording is taken on a hand-held device from the outside of the residence through a clear window into the bathroom. The recording follows victim from the vanity where she is getting unchanged to the shower where she is naked. The recording captures her breasts and genital areas (ROS 5.26).	10 years	2 years
Count 4 Use a child over 14 years of age to make child abuse material [s.91G(2)(a)]	MW Between 1/08/11 and 30/09/13 at Mittagong Further recording depicting victim showering in bathroom, again capturing her breasts and genital areas (ROS 6.8).	10 years	2 years
Count 5 Aggravated film person's private parts without consent [s.91L(3)] + Form 1 offences: 5xs.91L(3) 2xs.91K(3)	BT Between 1/08/14 & 31/12/15 at Lynwood 15 years of age on 27/04/14 Daughter of applicant's de facto partner, NT. 91 minute video depicting BT showering and changing, CW showering and changing and TF talking to CW while she's showering and changing, inside the ensuite of BT’s bedroom (ROS 7.1). The recording captures the breasts and genital areas of BT (ROS 7.6) Form 1 offences: The applicant carried out similar acts of offending on five other occasions from August 2014 to December 2015 by filming BT's private parts whilst showering (ROS 7.9); and on two other occasions from August 2014 to December 2015 filming BT engaged in a private act - toileting (ROS 8.19).	5 years	17 months
Count 6 Aggravated film person's private parts without consent [s.91L(3)]	CW Between 1/08/14 & 31/12/15 at Lynwood 15 years of age on 28/04/14 Friend of BT. Same video as above count 5. The recording captures the breasts and genital areas of CW (ROS 7.6)	5 years	14 months
Count 8 Aggravated film person in private act without consent [s.91K(3)]	TF Between 1/08/14 & 31/12/15 at Lynwood 15 years of age on 7/05/15 Friend of BT Same video as above count 5	5 years	12 months
Count 7 Aggravated film person's private parts without consent [s.91L(3)] + Form 1 offence: 1 xs.91L(3)	TRT Between 1/08/14 & 31/12/15 at Lynwood 15 years of age on 5/06/14 TRT is a friend of the T sisters. 42 minute video depicting AT, BT and TRT showering and changing one after another in the bathroom. The recording captures the breasts and genital area of TRT (ROS 7.20). Form 1 offence: A similar recording depicting TRT appeared on the third video tape, about six minutes in length.	5 years	10 months
Count 9 Aggravated film person in private act without consent [s.91K(3)]	BT Between 1/08/14 & 31/12/15 at Lynwood 15 years of age on 27/04/14 Daughter of applicant's de facto partner, NT. 18 minute video depicting BT toileting and AT showering and changing in the ensuite of BT’s bedroom (ROS 8.4).	5 years	17 months
Count 10 Use a child under 14 years of age to make child abuse material [s.91G(1)(a)] + Form 1 offences: 3xs.91G(1)(a)	AT Between 1 /08/14 & 31 /12/15 at Lynwood 12 years of age on 4/10/14 Daughter of applicant's de facto partner, NT. Same 18 minute video depicting BT toileting and AT showering and changing in the ensuite of BT's bedroom. The recording captures the breasts and genital area of AT (ROS 8.4). Form 1 offences: The applicant also carried out similar acts on three other occasions, from August 2014 to December 2015, in which he used the victim for pornographic purposes.	14 years	2 years 10 months

6. The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him on 15 June 2017 by his Honour Judge Frearson SC.

Factual background

7. The facts on which the applicant was sentenced were contained in a Statement of Agreed Facts, which was tendered as Exhibit A, in the sentence proceedings. In summary, over a period of 7 years the applicant filmed the teenage daughters of his de facto partners and the girls’ teenage friends changing, showering and toileting at three different premises where he lived during that period.

8. About 9.30am on Thursday, 31 December 2015 police attended the property named “Lynwood” in Mittagong. Police spoke with the applicant’s de facto partner, NT, who provided police with three video cassette tapes she had obtained from a Toyota Land Cruiser used by the applicant. NT had previously observed the three tapes in the applicant’s home office at the “Lynwood” residence. An external Samsung brand hard drive was also located and seized by police.

THE RESIDENCES

“Lynwood” – August 2014 – December 2015

9. The two bathrooms of “Lynwood” were examined by police. In both bathrooms, the fabric of the vents had been adapted. The location of the vents was the perspective from which the film originated. In a cupboard inside the home office of the applicant, a video recorder was located beneath a man-made hole leading to the roof cavity of the premises. The video tapes, the video recorder and a number of computer devices were seized from “Lynwood”.

10. Between August 2014 and December 2015, the applicant adapted the “Lynwood” residence in two different areas of two bathrooms to facilitate the filming of AT, BT, TRT, CW and TF. One device took in the area between the toilet and bin of BT’s ensuite and extended into the standing space in front of the hand basin and mirror. A second device took in the side of the bath and faced into the shower of the main bathroom.

11. NT and her daughters AT and BT lived at “Lynwood” from August 2014 to 31 December 2015. During this period AT was aged between 11 and 13 years and BT was aged between 15 and 16 years. The friends who were filmed (TRT, CW and TF) were also aged between 15 and 16 years.

Evans Street, Mittagong – August 2011 – September 2013

12. A review of the contents of the external hard drive identified video scenes involving the daughter of the applicant’s ex de facto partner, SW. The daughter MJW was born in January 1998 and turned 14 in 2012 (during the period of offending). These video scenes were taken from outside of the residence. They depict MW changing, showering and naked inside the bathroom. SW was in a relationship with the applicant between July 2010 and September 2013, and in August 2011 she moved into Evans Street, Mittagong.

“High Range” – January 2009 – December 2009

13. A review of the three video tapes identified scenes involving the daughter of the applicant’s ex de facto partner, VS. The daughter, TB, was born in February 1995 and a friend of hers, JLC was born in November 1994. The video tape depicted TB and JLC showering and changing inside the bathroom of the applicant’s prior residence at “High Range”. From January 2009 to December 2009 VS and her daughter, TB, lived with the applicant at “High Range”. During this period TB was aged between 13 and 14 years and JLC was aged between 14 and 15 years.

14. Between January 2009 and December 2009 the applicant adapted the “High Range” residence in three areas of the bathroom to facilitate the filming of TB from three different angles. The first device took in from the corner of the ceiling into the shower, standing space and hand basin. The second device took in the space between the shower and hand basin towards the door and standing space. The third device took in the side of the hand basin and faced directly into the shower.

Count 2 – Aggravated film person in private act without consent – s 91K(3) (TB)

15. An analysis of the first video tape recorded by the applicant between January and December 2009 depicts TB showering and changing in the main bathroom of the residence at “High Range”. The tape was approximately 24 minutes in length. It records the breasts and genital areas of TB, who had turned 14 in February 2009.

16. Further analysis of the second video tape shows a number of other recordings of TB showering and changing in the main bathroom of the residence, again depicting the breasts and genital areas of TB.

17. The applicant carried out similar acts of offending on three other occasions between January and December 2009 in which he filmed TB in a private act without consent. Those three other occasions are taken into account on a Form 1 which is attached to Count 2.

Count 1 – Aggravated film person in private act without consent – s 91K(3) (JLC)

18. The applicant recorded approximately 14 minutes of tape between January and December 2009 at his “High Range” residence, which depicts JLC showering and changing in the main bathroom of the residence. This recording captures the breasts and genital areas of JLC. JLC turned 14 in November 2008.

Counts 3 and 4 – s 91G(2) (MW)

19. An analysis of the hard drive revealed recordings made by the applicant between August 2011 and September 2013 at Evans Street, Mittagong of MW changing and showering in the main bathroom of the residence. This recording was taken on a hand-held device from the outside of the residence through a clear window into the bathroom. The hand recording follows MW from the vanity where she is getting undressed to the shower where she is naked. The recording captures the breasts and genital areas of MW.

20. An analysis of the hard drive shows a further recording made by the applicant between August 2011 and September 2013 at Evans Street, Mittagong which depicts MW showering in the main bathroom of the residence. This recording captures the breasts and genital areas of MW. MW turned 14 in January 2012.

Counts 5, 6 and 8

– Aggravated filming a person’s private parts – s 91L(3) (BT, CW) – Aggravated filming a person engaged in a private act – s 91K(3) (TF)

21. An analysis of the first video tape shows approximately an hour and a half of tape recorded by the applicant between August 2014 and December 2015 at his “Lynwood” residence. The tape depicts BT showering and changing, CW showering and changing and TF talking to CW while she is showering and changing inside the ensuite of BT’s bedroom. This recording captures the breasts and genital areas of BT and CW.

22. Further analysis of the first video tape shows a number of recordings depicting BT showering and changing on her own which captures the breasts and genital areas of BT.

23. The applicant carried out similar acts of offending on five other occasions from August 2014 to December 2015 by filming BT’s private parts without her consent. Those five other occasions are taken into account on a Form 1 attached to Count 5.

Counts 9 and 10 – Aggravated filming a person engaged in a private act – s 91K(3) (BT)

Use of a child under 14 for production of child abuse material – 91G(1) (AT)

24. An analysis of the first video tape shows approximately 18 minutes of tape recorded by the applicant between August 2014 and December 2015 at his “Lynwood” residence depicting BT toileting and AT showering and changing in the ensuite of BT’s bedroom. This recording captures the breasts and genital areas of AT. AT was aged 12 to 13 years from August 2014 to December 2015.

25. Further analysis of the second video tape shows a number of other recordings of BT toileting in the ensuite of her bedroom.

26. The applicant carried out similar acts of offending on two other occasions from August 2014 to December 2015 by filming BT engaged in a private act. Those two other occasions are taken into account on a Form 1 attached to Count 5.

27. Further analysis of the second and third video tapes shows a number of other recordings of AT showering and changing in the main bathroom, capturing her breasts and genital area. The applicant carried out similar acts of offending on three other occasions from August 2014 to December 2015 in which he used AT, a child under 14 years, for pornographic purposes. Those three other occasions are taken into account on a Form 1 attached to Count 10.

Count 7 – Aggravated filming a person’s private parts – s 91L(3) (TRT)

28. An analysis of the second video tape shows a recording, approximately 43 minutes in length, made by the applicant between August 2014 and December 2015 at his “Lynwood” residence depicting AT, BT and TRT showering and changing one after the other in the main bathroom. This recording captures the breasts and genital areas of TRT.

29. A similar recording, of about six minutes in length depicting TRT, also appears on the third video tape. That one further occasion is taken into account on a Form 1 attached to Count 7.

Proceedings on sentence

30. On sentence the Crown tendered a sentence summary annexing the Committal Notice with attached Court Attendance Notices, the Agreed Facts, Form 1 Schedules, the applicant’s criminal and custodial records together with the Victim Impact Statements of BT and TRT. The Victim Impact Statements were tendered as Exhibit A.

31. The applicant did not give evidence. His case was presented through:

• A pre-sentence report prepared by Louisa Hardgrove, dated 18 May 2017, tendered as Exhibit B.

• A psychiatric report of Dr Olaf Nielssen, dated 17 May 2017.

• A psychiatric report of Dr Errol Jacobson, dated 26 February 2017.

• A psychologist’s report, of Campbell MacBean, dated 16 May 2017 (collectively tendered as Exhibit 1).

32. Also tendered in the applicant’s case on sentence were a number of character references (collectively tendered as Exhibit 2) and a letter from the applicant to the court expressing his remorse, tendered as Exhibit 3.

33. The sentencing judge assessed the seriousness of each of the offences. In relation to Count 2 (TB) his Honour found:

“It is a moderate example of this type of conduct but having said that, it is a serious example of this type of offence because of the circumstances in which it was committed and the breach of trust. I appreciate I cannot double count elements but there are two circumstances of aggravation, the adaptation of the building and the component of being under 16.” (Sentence judgment, 5.2)

34. In relation to Count 1 (JLC) his Honour found:

“The activity itself is not of the highest level obviously, but I need to take into account all of the circumstances and again it is a serious breach of the law in relation to this count.” (Sentence judgment, 5.9)

35. In relation to Counts 3 and 4 (MW) his Honour said:

“I appreciate the level of the child abuse material is quite low in terms of what can constitute child abuse material under the Act and I do take that into account, but I also have to take into account what actually happened. It was taken from outside the window. It followed her for some distance. I consider what area of her body was captured.

…

Here you have the factor of the very high breach of trust. Whilst the activity filmed is of a very moderate level, I need to take into account all of the circumstances.” (Sentence judgment, 6.5)

36. In relation to Count 5 (BT) his Honour had regard to the large number of Form 1 matters attached to that count. His Honour had regard to the fact that the offending involved a gross breach of trust and that the offending was a serious example of this type of offence (Sentence judgment, 7.7).

37. In relation to Count 7 (TRT), the sentencing judge noted that there was quite a lengthy piece of video showing three girls, including TRT, which focused on her breasts and genital area. His Honour noted that this was in premises which had been adapted by the applicant. His Honour concluded:

“Again, the activity itself is not particularly serious but all the circumstances need to be taken into account.” (Sentence judgment, 8.3)

38. In relation to Counts 9 and 10 the sentencing judge said:

“When I look at those matters, the first video was an 18 minute recording at Lynwood, depicting BT toileting and AT showering and changing and the facts speak for themselves. The activity recorded again is not the most serious, but again I need to look at all the circumstances and I need to look particularly at the breach of trust aspect, which puts things into a different complexion.” (Sentence judgment, 9.2)

39. In summary, the sentencing judge found:

“There are some things obviously that human beings should be allowed to do in private. Showering and toileting may well be considered two of them and there is a basic right not to be secretly exploited by someone engaged in some type of pleasure pursuit. The offender, it is clear, went to considerable efforts, physically and otherwise to effect his purpose and over quite a long period of time.

I appreciate I have to sentence for the individual offences but the pattern of behaviour is important here because it actually underlines the determination and the deliberateness of the conduct …” (Sentence judgment, 9.6)

40. His Honour assessed the applicant’s subjective case. He was born in December 1967 and was aged 49 at the time of sentence. His Honour made the following findings which were favourable to the applicant:

• A discount of 25 per cent for the early plea.

• No previous criminal convictions.

• A person of previous good character.

• Remorseful.

• Unlikely to re-offend.

• Good prospects of rehabilitation.

• There was a strong component of extra curial punishment.

41. The extra curial punishment comprised a community backlash when his offending became known which forced him to leave an area where he had lived for many years. It also involved him selling his house at what was said to be an undervalue.

42. In terms of the applicant’s mental state, the sentencing judge summarised the content of the psychiatric and psychological reports and found that there were no signs of a neurological disorder and that the applicant’s attention and concentration were unimpaired. He had some type of depressive condition which was in remission. It was not clear whether this depressive condition had anything to do with his arrest. His Honour noted that there was no diagnosis of any abnormal sexual interest on the part of the applicant and that he had only ever viewed pornography which involved adults. His Honour concluded that the applicant probably met the criteria for a diagnosis of a voyeuristic disorder.

43. His Honour summarised the effect of those expert reports:

“What I glean from all the material is that there is nothing actually that significantly mitigates the objective gravity of the offences. There is nothing that would preclude a full appreciation that he was doing the wrong thing and the consequences of doing the wrong thing.” (Sentence judgment, 14.4)

44. His Honour found “special circumstances” on the basis that this was the applicant’s first time in custody, that there was an extra curial punishment aspect and that it was likely that there would be some type of restriction when he went to gaol because of the nature of the offences.

Leave to appeal

45. The applicant lodged a Notice of Intention to Appeal Against Sentence on 4 July 2017, which expired on 4 January 2018. A Notice of Application for Leave to Appeal Against Sentence, Grounds of Appeal and written submissions, along with a Notice of Application for Extension of Time for Notice of Appeal were filed on 17 January 2018.

46. As can be seen, these latter documents were filed approximately two weeks out of time and therefore the applicant requires an extension of time.

47. When this matter came on for hearing, counsel for the applicant explained that the late filing had occurred because of an oversight in the solicitor’s offices. In those circumstances, and because the offences which are the subject of this application are relatively unusual, I am of the opinion that an extension of time should be granted.

THE APPEAL

Ground 1 – His Honour imposed a sentence that was unreasonable or plainly unjust (for reasons that may not be able to be discerned) and the sentences are manifestly excessive.

48. The applicant submitted that the effect of the sentencing judge’s analysis of the objective seriousness of the offending was that each of the offences was assessed as “low level”. The applicant submitted that with his strong subjective case, which included a history of no previous offending, the individual offences would have been unlikely to have attracted a fulltime custodial penalty. The applicant submitted that it was for this reason that each of the indicative sentences were manifestly excessive and so was the aggregate sentence.

49. It should be noted that in oral submissions the applicant expressly abandoned that part of his submissions which argued that because of the 25 per cent discount for the early plea of guilty, the notional starting point for the aggregate sentence must have been 8 years. This concession was properly made. Such an approach is wrong for at least two reasons. Firstly, the discount for the plea is applied to the indicated sentences and not to the aggregate sentence (R v Cahill [2015] NSWCCA 53 at [109]-[110]; Hoskins v R [2015] NSWCCA at [57],245; PG v R [2017] NSWCCA 179 [71]-[94] (Button and N Adams JJ)). There is therefore no “notional starting point” for an aggregate sentence (Elsaj v R [2017] NSWCCA 124 at [56]).

50. In relation to the objective seriousness of the offending, the applicant noted the following:

1. There was a total of eight adolescent children filmed.

2. None of the victims were directed to behave in a particular way.

3. None of the events were accompanied by any physical contact between the victims and the applicant.

4. There was an overlap in the offences.

5. The subject matter was assessed as low level.

6. There was no physical harm occasioned.

7. There was a total of three video tapes involved and one hard drive.

8. No material was viewed by anyone other than the applicant.

9. No material was disseminated.

10. There was no financial benefit.

51. Insofar as his subjective case was concerned, the applicant identified the following favourable matters:

1. The matter had attracted a full discount for the plea of guilty of 25 per cent.

2. He had ceased the behaviour before being detected.

3. He had sought counselling.

4. He was found to be remorseful.

5. There were no prior convictions.

6. He was of prior good character.

7. He had a strong work history.

8. He had strong family support.

9. He had substantially rehabilitated and was found to be unlikely to re-offend.

10. There was a component of extra curial punishment.

52. The applicant submitted that against that background, the aggregate sentence was disproportionate to the offending and should be considered to be a crushing sentence in that he will be left with a sense of hopelessness which will destroy any expectation of a useful life after release. This is because he is likely to lose his business while he is incarcerated and he has been required to relocate away from the area where he has lived and worked all his life.

53. The applicant submitted that even if the sentence is not to be regarded as “crushing”, the sentence must still be proportionate to the offending. In that regard, the applicant relied upon Azzopardi v The Queen; Baltatzis v The Queen; Gabriel v The Queen [2011] VSCA 372; 219 A Crim R 369. There Redlich JA (Coghlan and Macaulay AJA agreeing) said:

“69   Whether a sentence offends the principle of totality is directed to the broader question whether the total sentence is proportionate to the offenders overall criminality. It is not dependent upon the subjective views of the offender. Thus a sentence may offend the totality principle without being ‘crushing’. It may be too long without destroying any reasonable expectation of a useful life after release (Jarvis v R (1998) 20 WAR 201 at 216 (Anderson J)). On the other hand a crushing sentence may not necessarily offend the totality principle though it may provide an indicator that it has infringed the principle. The subjective effect of a total effective sentence upon the offender must be put in perspective. While relevant, it cannot be regarded as of paramount importance. Hence in Vaitos v R, O’Bryan J rejected the notion that a richly deserved sentence should be reduced because the offender may feel crushed by it (R v Vaitos (1981) 4 A Crim R 238 at 301). The overriding principle is that the sentence ‘should fairly and justly reflect the total criminality of the offender's conduct’ ((1998) 20 WAR 201 at 207 (Ipp J)).”

54. The applicant also relied upon the following observations in R v Van Ryn [2016] NSWCCA 1 where Justice R A Hulme observed:

“228   Street CJ described the principle of totality in sentencing in R v Holder; R v Johnston [1983] 3 NSWLR 245 at 260 as follows:

“The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences.”

…

230   In R v XX (2009) 195 A Crim R 38 at [52], Hall J set out a number of propositions derived from the case law concerning the discretionary exercise of ordering sentences to be served concurrently or cumulatively in accordance with the principle of totality. They included reference to the following passage in the judgment of Howie J in R v Cahyadi [2007] NSWCCA 1; 168 A Crim R 41at [27]:

“… [T]here is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

55. The applicant submitted that when the principle of totality, as explained in those cases, is applied to the indicative sentences and the aggregate sentence in this matter, it is clear that those sentences are, alone or in combination, manifestly excessive and “unreasonable or plainly unjust” per Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at 325.

Consideration

56. The applicant contends that the sentences are alone or in combination (notwithstanding that this is an aggregate sentence) manifestly excessive. The principles with respect to whether a sentence is manifestly excessive are set out in Vaiusu v R [2017] NSWCCA 71 at [28]; Obeid v R [2017] NSWCCA 221 at [443]; and recently in Hughes v R [2018] NSWCCA 2 at [86].

57. In Hughes v R the Court (Payne JA; R A Hulme and Garling JJ) said:

“86   When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]:

(1)   appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases;

(2)   intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error;

(3)   it is not to the point that this Court might have exercised the sentencing discretion differently;

(4)   there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and

(5)   it is for the applicant to establish that the sentence was unreasonable or plainly unjust.

…”

58. To succeed in establishing this ground, the applicant must establish that the aggregate sentence was “unreasonable” or “plainly unjust”. Consideration of whether a sentence is unreasonable or plainly unjust is undertaken in the context that there is no single correct sentence and that sentencing is not a mathematical exercise. Sentencing judges are required to reach a sentence for each offence by balancing many different and conflicting features (Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 at [34]).

59. This Court will not interfere with a sentence merely because it may have exercised its discretion differently: Markarian v The Queen [2005] HCA 25; 228 CLR 357. As Hayne J observed in AB v The Queen [1999] HCA 46; 198 CLR 111 at [128] “there will be a range of possible sentences that could be imposed without error.” Although Hayne J was in dissent, there is no issue as to the correctness of this observation.

60. In order to properly appreciate the approach of the sentencing judge, it should be noted that the facts of this case were unusual and there were no cases which raised similar issues so as to provide any real guidance. Apart from the general propositions as to totality, to which the applicant referred, the sentencing in this matter depended very much upon the specific facts.

61. Over a period of seven years the applicant filmed the teenage daughters of his de facto partners and their teenage friends changing, showering and toileting at three different premises where he lived during that period. There were eight victims in all. Two of the three properties where the offences took place, had been modified in various ways to allow the applicant to secrete surveillance devices which would allow him to record and watch the most private activities of these young girls.

62. In relation to Counts 1, 2, 8 and 9 – aggravated film person in private act without consent – the maximum penalty for the offence is imprisonment for 5 years and the indicative sentences were 10 months, 16 months, 12 months and 17 months respectively. The applicant submits that the offending was assessed as “low level”, that the victims were at the upper end of the age range of 16 years, that the young girls were not directed to pose and were otherwise oblivious to the offending and the act was not accompanied by an indecent assault or any other physical contact.

63. The submission that his Honour assessed the offending as “low level” considerably understates the seriousness of the offending as found by his Honour. As can be seen at [33]-[39] hereof his Honour found that the offending involved a serious breach of the law and was a serious example of this kind of offence. It is not to the point to stress that at the time that the offences occurred the victims were unaware of them. The victims have since become aware of being observed and recorded at a very sensitive time in their lives. As has been set out in the two victim impact statements, the effects of this offending can be far reaching. It is difficult to imagine a more serious violation of privacy and personal space for young girls on the brink of womanhood than that which occurred here.

64. Far from regarding the offending as “low level”, the sentencing judge stressed the significant breach of trust involved together with the aggravating features that in some cases the offending occurred in the victims’ homes and in the case of two of the residences, involved deliberate modification to the house to facilitate the offending. In fact the reason why the victims were not directed to pose and were otherwise oblivious to the offending was because the applicant had adapted the relevant premises to allow him to engage in covert filming of private acts. The sentencing judge found that the applicant had gone to “considerable efforts physically and otherwise to effect his purpose”. The fact that the victims were unaware they were being filmed does not mitigate the objective seriousness of the offending.

65. As has been said on a number of occasions in this Court the fact that the particular offending was not accompanied by an indecent assault or any other physical contact does not make the offence less serious than it is. The objective gravity of an offence is not assessed by the absence of features which would elevate the offence to a different category of seriousness or a different type of offence (Faehringer v R [2017] NSWCCA 248 at [49]; R v CTG [2017] NSWCCA 163 at [60]; Mills v R [2017] NSWCCA 87 at [57]; Greenwood v Regina [2014] NSWCCA 64 at [31]; Bamblett v R [2013] NSWCCA 161 at [30]; and Mammone v R [2013] NSWCCA 95 at [35]).

66. If the applicant did commit an indecent assault on a child under 16 years, he would have been liable to a charge under s 61M(2) of the Crimes Act, which carries a higher maximum penalty of 10 years with a standard non-parole period of 8 years. Similarly, the absence of aggravating features does not operate as a mitigating factor (Mammone v R at [35]). As Grove J observed in Saddler v R [2009] NSWCCA 83; 194 A Crim R 452 at [3] “In plain language, it does not make what has been done by an offender less serious because it could have been worse”.

58. In relation to Counts 5, 6 and 7 – Aggravated film person's private parts without consent – the maximum penalty is imprisonment for 5 years, the sentencing judge indicated sentences of 17 months; 14 months and 10 months respectively.

59. The applicant refers to the fact that the offences were capable of summary disposal, that the offending was assessed as “low level”, that the victims were not directed to pose and were otherwise oblivious to the behaviour, and that the act was not accompanied by an indecent assault or any other physical contact.

60. In relation to the issue of the possibility of summary jurisdiction, the sentencing judge referred to that submission and correctly concluded that this was not a significant consideration. His Honour appropriately relied upon Elias v The Queen; Issa v The Queen [2013] HCA 31; 248 CLR 483 and Bainesv R [2016] NSWCCA 132.

61. As with the other counts, the applicant is incorrect in suggesting that the sentencing judge found the offending in respect of these counts to be “low level”. His Honour in fact found that these offences (Counts 5, 6 and 8) were a “serious example of this kind of matter”. In relation to Count 7, his Honour said "the activity itself is not particularly serious but all the circumstances need to be taken into account” (emphasis added).

62. The fact that the young girls were not directed to pose and were otherwise oblivious to the behaviour has already been discussed.

63. In relation to Counts 3 and 4 – use a child over 14 years of age to make child abuse material – the maximum penalty is imprisonment for 10 years. The sentencing judge indicated sentences of 2 years for each offence. In relation to these counts, the applicant repeats the same submissions and in particular, that the images were not published or disseminated in any way and that the number of victims was limited.

64. For the reasons already given, these matters do not significantly ameliorate the offending. As with the other counts, the applicant relies on the absence of aggravating factors. The fact that the images were not published or disseminated is not to the point. If they had been, this would have given rise to a separate offence under s 91H(2). The fact that the applicant did not disseminate the material does not lessen the seriousness of making the child abuse material. The fact that there was only victim involved does not mitigate the seriousness of the offending. It simply does not aggravate the offence pursuant to s 21A(2)(m) of the Act.

65. In relation to Count 10 – use a child under 14 years of age to make child abuse material – the maximum penalty for this offence is imprisonment for 14 years. Taking into account a further three offences on a Form 1, the sentencing judge indicated a sentence of 2 years and 10 months for this offence. As with the other counts, it is not accurate to say that his Honour assessed this offending as “low level”. In relation to this offence, his Honour said:

“The activity recorded again is not the most serious, but again I need to look at all the circumstances and I need to look particularly at the breach of trust aspect, which puts things into a different complexion.” (Sentence judgment, 9.2)

75. The fact that the victim was not aware of the offending and that there was no physical contact has already been addressed.

Summary and conclusion

76. His Honour had regard to and made findings about the objective seriousness of the applicant’s offending, his subjective circumstances and other factors relevant to sentence before turning to the issue of totality in the context of setting an aggregate sentence. The indicative sentences properly reflect the findings made in relation to the objective seriousness of each offence, the maximum penalties and the applicant’s subjective case. His Honour specifically reminded himself that he needed to look at Pearce v The Queen [1998] HCA 57; 194 CLR 610 and needed to consider the discrete sentences, the question of accumulation and totality. Since there were eight victims involved, it was appropriate for his Honour to allow for at least partial accumulation when formulating the aggregate sentence.

77. Because there were 10 discrete offences involving eight different victims, a not insignificant degree of accumulation was clearly warranted. The criminality of one offence could not be said to comprehend the other in the circumstances of this case.

78. The applicant entered custody when he was aged 49 and will be eligible for release to parole in three and a half years, i.e. December 2020, when he will be aged 53. In all the circumstances, such a sentence could not be considered as “crushing” so as to destroy any expectation of a useful life.

79. The applicant was sentenced in relation to 10 offences with a further 14 offences on a Form 1. Taking into account the objective seriousness of the offences, the need for specific and general deterrence, the principles of totality and the legislative guideposts, an aggregate sentence of 6 years with a non-parole period of 3½ years cannot be regarded as so unreasonable or plainly unjust as to warrant this Court’s intervention.

80. Accordingly, the orders which I propose are:

1. An extension of time within which to bring the application for leave to appeal against sentence is granted.

2. Leave to appeal against sentence is granted.

3. The appeal is dismissed.

81. WALTON J: I agree with Hoeben CJ at CL.

82. R A HULME J: I agree with Hoeben CJ at CL.

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Decision last updated: 11 May 2018