R v Hitchen [2009] NSWDC 431

Set aside by Appeal :

New South Wales District Court

CITATION: R v Hitchen [2009] NSWDC 431

HEARING DATE(S): 2 and 17 February, 2009

JUDGMENT DATE: 8 April 2009

JURISDICTION: Criminal

JUDGMENT OF: Garling DCJ

DECISION: A total term of imprisonment of 24 years with a non-parole period of 18 years.

CATCHWORDS: CRIMINAL - sentence - plea - use carriage service to transmit child pornography - mid-range category of offence - possess child pornography - persistent sexual abuse of child - use child under 14 years for pornographic purposes - use carriage service to access child pornography - worst category of offences - s.474.19(1)(a)(iii) Criminal Code Act 1995, ss 91H(3), 66EA, 91G(1)(a) Crimes Act 1900, s.474.19(1)(a)(i) Criminal Code Act 1995 - accumulation of sentences

Crimes Act 1900 LEGISLATION CITED: Criminal Code Act 1995 (Commonwealth) Crimes Act 1914 (Cth)

R v Fitzgerald (2004) NSWCCA 5 CASES CITED: RJA [2008] NSWCCA 137 MLP [2006] NSWCCA 271 Cahyadi [2007] NSWCCA 1

PARTIES: Regina Glenn Hitchen

FILE NUMBER(S): 08/18854; 08/18509; 08/18510

COUNSEL: Mr. J. Barnett (Offender)

Mr. G. Coles (ODPP) SOLICITORS: Mr. A. McMaster (ODPP) Mr. M. Giles (Offender)

JUDGMENT HIS HONOUR: The prisoner has pleaded guilty to the following charges:- 1. Charge 1 – On 25 November, 2006 at Port Macquarie in the State of New South Wales, used a carriage service to transmit child pornography material. That carries a maximum sentence of 10 years' imprisonment. 2. Charge 2 – On 25 November, 2006 at Port Macquarie in the State of New South Wales, used a carriage service to access child pornography material. That carries a maximum sentence of 10 years' imprisonment. 3. Charge 3 – On 5 December, 2007 at Port Macquarie in the State of New South Wales, had child pornography in his possession. That carries a maximum sentence of 5 years' imprisonment. 4. Charge 4 – Between 18 November, 2004 and 20 October, 2007 at Port Macquarie in the State of New South Wales and at Hervey Bay in Queensland, on twelve separate occasions occurring on separate days, did have sexual intercourse with K, a child then under the age of 10 years, and on a further thirty six separate occasions occurring on separate days did commit an act of indecency with K, a child then under the age of 16 years. That carries a maximum sentence of 25 years' imprisonment. 5. Charge 5 – Between 25 February, 2005 and 15 May, 2005 at Port Macquarie in the State of New South Wales, used K, a child under 14 years, namely 7 years, for pornographic purposes. That carries a maximum sentence of 14 years' imprisonment. I also take into account on this charge four other charges on a Form 1. They are four charges of using a child under 14 years for pornographic purposes. 6. Charge 6 – Between 26 March, 2005 and 26 April, 2005 at Port Macquarie in the State of New South Wales, used a carriage service to transmit child pornography material. That carries a maximum sentence of 10 years' imprisonment. I also take into account on this charge two charges on a Form 1. They are charges of use carriage service to transmit child pornography. 7. None of the charges have a standard non-parole period. 8. The facts upon which I sentence the prisoner are those set out in exhibit A in considerable detail. For convenience I summarise them below and I refer to them in greater detail when I am dealing with the seriousness of each charge: 9. Investigations by the Australian Federal Police of the prisoner commenced in November, 2007 as a result of information received from the FBI. On 5 December, 2007 a search warrant was executed upon the prisoner's premises. A number of items were seized. After investigations the police interviewed the child who told them that the prisoner had indulged in behaviour which included viewing pornographic material, sleeping in the nude with her, taking photographs of her, playing and rubbing his private parts. 10. The child was again interviewed after a number of other matters had been investigated and she spoke of hundreds of "model photos" of her naked being taken, that she was told not to tell anyone about the photography. When she stayed with him she slept in the same bed. He had put his penis in her mouth and ejaculated, he had performed cunnilingus on her and digitally penetrated her anus and he would have her drink beer. 11. The investigators found 2,170 images relating to K, the child the subject of these offences. Those images depicted the child from the age of 7 to 9 years being subjected to acts of intercourse, orally, vaginally and anally. There was also a video depicting the child being subjected to fellatio over a period of time and a number of photos depicting the child in various stages of undress, being dressed in g-strings, high-heeled shoes, fishnet stockings, urinating, using a vibrator and exposing her genitals and anus. The prisoner transmitted some of these images to other paedophiles overseas and also took part in "chat rooms" discussing child pornography and exchanging images. In addition, the prisoner had in excess of 729,000 child pornographic images involving children of a very young age involved in various stages of intercourse with males and various forms of abuse including a video depicting sexual acts with a dog. He also had 2,700 video files depicting child pornography. 12. The last of these offences occurred on 19 October, 2007 and he has been in custody since December, 2007. 13. The prisoner is 44 years of age. He has no prior criminal convictions. He has pleaded guilty at an early time. The utilitarian value of his plea is high. He is entitled to a discount of 25% on sentence. 14. The prisoner has been in custody since 5 December, 2007 on these charges alone and his sentences will be backdated to commence on that date. 15. The prisoner gave evidence and a proof of his evidence, exhibit 3, was tendered on his behalf. The prisoner attended school up to Year 10. He obtained his school certificate and completed a motor engineering certificate and apprenticeship. Over the years he has had a number of different jobs and appears to have been in full-time employment. He has a diving instructor's certificate, St. John's senior first aid certificate, Royal Life Saving Society instructor's certificate, a coxswain's certificate and a radiotelephony certificate. He said he had numerous relationships which failed. His early years up to 1998 were unremarkable. He has strong family ties. Exhibit 1 is a letter from his mother and sister. They say he has always been a person of extreme kindness and generosity, he is naïve, gullible, trusting and they believe that these personality traits contributed to his actions and they also believe he is extremely remorseful and will not re-offend. 16. In 1998 he met the victim's mother, he commenced a relationship. They lived together for a short time during the relationship whilst at Port Macquarie and they lived together in Queensland for six or seven months. They returned to Port Macquarie and lived separately but continued their relationship. The prisoner says that K, the victim, became his best friend and, at that time, he felt unwanted by her mother. He said he had difficulty in keeping and maintaining friends. 17. In 2000 he commenced using a computer and then started to use chat rooms to meet people. He then obtained access to pornographic material, he developed his computer skills and exchanged files which contained pornographic material. Some of those files included child material. He went further into child pornography and had assistance regarding the technical aspects from those in the groups with whom he had contact. He said: "The obsession then progressed to taking active steps to involve myself in the fantasy by using the victim in my own photography. This gave me some credibility with other parties and the level of communication escalated." 18. The prisoner has said that he is sorry for his behaviour. He recognises the devastation the victim and her family will suffer and the hurt his own family will suffer. He says he is guilty and has no excuse. 19. I note in the report of the psychologists, Melissa Murray and Lyndon Newell, it is said that the prisoner demonstrated poor awareness regarding the issue of consent, that he denied planning and that he minimised the impact of his offending on the victim stating that, if not arrested, he would have had a father/daughter relationship and that he minimised his role in the offence. The report concludes that there was no indication of mental illness and there is no problem with alcohol or illegal drugs. He reports low self-esteem, resentment and betrayal. He is considered to have a low risk of re-offending. 20. A pre-sentence report concludes that he is suitable for a medium level of intervention commensurate with the assessed risk. They say that there is a program available in the correctional system. 21. I have seen a document, exhibit 2, and the summary which indicates he has been willing to cooperate to assist with investigations. The value of his assistance, in my view, would not entitle him to any substantial discount on sentence. However, I have taken it into account. 22. The prisoner had no criminal record and there is some evidence which would suggest he was a person of good character. Whilst I take this into account, it has little weight in this sentence. Unfortunately, people of otherwise good character commit crimes against children. I also take into account that he has expressed remorse. 23. I take all these matters into account when sentencing the prisoner. I also take into account that the prisoner will most likely serve his sentence in some form of protection. 24. It is submitted on the prisoner's behalf that I should find special circumstances. The special circumstances being the need for rehabilitation. Whilst he is in custody, as I understand it, he will be able to undertake various programs and courses. It is argued that the psychologists administered various tests and found that the prisoner was in the low risk category for re-offending but that there were still concerns and that Probation and Parole had assessed him as a medium risk. Probation and Parole have also said that there is a program available in custody, the CUBIT Program, which he can undertake. The prisoner will be serving a lengthy period in custody and, in my view, will get all the assistance he needs to rehabilitate himself. He will also have a lengthy period on parole. I am unable to find special circumstances. I have to also record that, from everything I have seen in this case, despite the tests which have been carried out, I have serious reservations that he will not offend in this way again. 25. I have also had tendered a victim impact statement prepared by the victim's mother. She says that the abuse suffered by her daughter had affected her daughter's behaviour, trust, emotional well-being and her relationships with her family and friends. It discloses that K has been significantly affected as a result of the abuse she suffered. 26. In my opinion charges 3, 4, 5 and 6 fall into the worst category of each of those charges. Charge 3 involves 729,000 photographic files and 2,700 video files. The material contains still images of children depicting oral, anal and vaginal penetration, use of sex toys and children performing sexual acts on each other and the video material depicts oral, anal and vaginal penetration of children and a child performing oral sex upon a canine. I have seen a selection of these photographs and a video. Their contents are revolting. For each photo and each video a child has been abused. Taking into account the nature of the photographs and videos and their very large number, I am satisfied this falls into the top of the range. I believe that the maximum sentence of 5 years' imprisonment for this offence is totally inadequate when you have a case of this nature. However, my sentence is limited by the maximum sentence available. 27. Charge 4 – The victim was 7 years of age when these offences commenced and they continued over a period of nearly 3 years. They involved sexual intercourse with a child under 10 years on 12 separate occasions and an act of indecency on 36 other occasions. Whilst the child was sleeping the prisoner placed his penis in her mouth and in her vagina, he also placed his penis in her mouth and vagina when she was awake and, on another occasion, placed his penis in her anus. On each occasion he took photographs of what he was doing. 28. On 26 February, 2005 he took a video which showed him with his penis in the child's mouth. She was 8 years of age. It shows him performing fellatio for some time. She appears to be gagging and he is instructing her what to do. What is depicted on the video is abhorrent but an important part of the evidence. It is one thing to look at a still photograph but watching what he was doing to this child on video brings home the horror of what was happening to her. 29. Other incidents include placing his erect penis between the cheeks of the child's bottom and holding his erect penis in her hands. On 24 March, 2005 the child has placed her hand around his erect penis, she then kneels between his legs with her hand around his penis with the end of the penis touching her lips and then his penis is placed inside her mouth. On another occasion the child is shown wearing black fishnet stockings holding a dildo and reclining on a motor vehicle exposing her vagina which is one of the many acts of indecency. She is shown holding a vibrator against her vagina, another act of indecency. There are numerous acts of abuse. They are of a serious nature. The victim is between 7 and 9 years of age. The prisoner was in his late thirties. He took photographs and videos of the child while he was abusing her, he dressed her in clothes for pornographic purposes. There was absolutely no reason other than for his sexual gratification. He took away this child's right to enjoy the life of a child, free from harm and abuse. He was in a relationship with her mother and there was no doubt that the child totally trusted him. The number of incidents of sexual abuse, the fact that they occurred over about 3 years and the very nature of the sexual abuse place this in the most serious category. 30. The Court of Criminal Appeal in Regina v. Fitzgerald (2004) NSWCCA 5 set out propositions for dealing with persons charged with this offence (s 66EA). At paragraph 13 Justice Sully said: "The ultimate question for the sentencing Judge is where a sentence that is just, according to proper sentencing principles, should stand on a statutory scale, the highest point of which is a sentence of imprisonment for 25 years." 31. His Honour said at the end of that paragraph, after reviewing the authorities: "The Court will still have regard to the duration of the offending, the seriousness of the offences involved and the frequency of the offending but the Court will not be accumulating a series of maxima produced by multiplying the number of individual offences that can be identified by the applicable statutory maxima. There is nothing to suggest that Parliament intended that the sentencing for a course of conduct which has crystallised into a s 66EA conviction should be more harsh an outcome than sentencing for the same course of conduct had it crystallised into convictions for a number of representative offences."