New South Wales Court of Criminal Appeal CITATION : Regina v MJK [2001] NSWCCA 325 FILE NUMBER(S) : CCA 60607/00 HEARING DATE(S) : 8 August 2001 JUDGMENT DATE : 30 August 2001 PARTIES : Regina v MJK JUDGMENT OF : Dowd J at 51; Smart AJ at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0154 LOWER COURT JUDICIAL Woods DCJ OFFICER : COUNSEL : (A) S J Odgers SC (C) D M L Woodburne SOLICITORS : (A) D J Humphreys (C) S E O'Connor CATCHWORDS : Sentencing - series of sexual offences - application of principles of totality LEGISLATION CITED : Nil CASES CITED: Nil DECISION : See para 50 IN THE COURT OF CRIMINAL APPEAL 60607/00 DOWD J SMART AJ Thursday, 30 August 2001 REGINA v MJK JUDGMENT 1 SMART AJ : MJK seeks leave to appeal against the following sentences: Count 1 Sexual intercourse with CO, a girl aged 14, on 6/8/98 and taking into account: (a) sexual intercourse with CO on 28/9/98 (b) sexual intercourse with CO on 6/5/99 2 years 3 months fixed term from 26/8/99 to 25/11/01 Count 2 Sexual intercourse with JT, a girl aged 15, between 8/6/99 and 11/6/99 and taking into account (a) sexual intercourse with JT between 9/5/99 and 8/6/99 2 years 3 months fixed term from 26/11/01 to 25/2/04 Count 3 Homosexual intercourse with SC between 8/6/99 and 11/6/99 2 years 3 months fixed term from 26/2/04 to 25/5/06 Count 4 Aggravated intercourse without consent with KL, a seriously intellectually disabled girl, on 25/8/99 and taking into account (a) aggravated act of indecency on KL on 25/8/99 (b) aggravated indecent assault on KL on 25/8/99 2 years 3 months fixed term from 26/2/04 to 25/5/06 Count 5 Publishing an indecent article (child pornography) between 20/5/99 and 22/6/99 and taking into account (a) possess prohibited weapon (imitation pistol - 22/6/99 (b) possess child pornography, a laptop computer with video files of child pornography, on 22/6/99 (c) possess child pornography, a video tape of child pornography, on 23/6/99 2 years fixed term from 26/8/99 to 5/8/01 2 As to the first count the applicant got in contact with CO through a chat programme on the Internet. She told him that she was 14. He sent a photo of himself to her over the Internet. She agreed to meet him at McDonalds at Kingsford on 6 August 1998 and did so. She got into his car. He drove to an isolated car park and prevailed upon her to have penile vaginal intercourse with him in the car despite her initial reluctance. He drove her back, to Randwick and dropped her off. 3 As to the offence of sexual intercourse on 28 September 1998 the applicant arranged, through the Internet, to meet CO at the 7-Eleven Store at Randwick. He collected her in his car, drove to a liquor store at Castle Hill and purchased some liquor. He drove her to a park, and drank the liquor. He got her tipsy. He took her into a bedroom in a home at Castle Hill and had anal intercourse with her. 4 As to the offence of sexual intercourse on 6 May 1999 the applicant drove CO to the isolated car park at South Maroubra Surf Club and again penile vaginal intercourse occurred. The judge took this offence and the earlier offence into account on count 1. The Second Count 5 The applicant and JT came into contact on the Internet in May 1999. She agreed to go with him to the movies at Eastgardens. He drove her there, and after the film concluded, left her there. Around 9 May 1999 she communicated with him and agreed to his suggestion that he come over to her home with a bottle of wine. He came to her home later that night. They drank the wine. He laid her on the bed and placed his penis in her anus. She woke up next morning in a great deal of pain and with a hangover. He had left and she informed her mother of the sexual assault. On this count the judge took into account the applicant having sexual intercourse with JT at Eastlakes during the period 9 May 1999-8 June 1999. The Third Count 6 About 9 June 1999 the applicant spoke to JT on her mobile telephone and told her he was going to come and bring some alcohol. She and SC agreed. Around midnight he arrived at the side bedroom window of her home with a bottle of vodka. JT's mother and her de facto were asleep in the front main bedroom. JT and SC went for a drive with him. On their return to the side bedroom they consumed the vodka. SC, aged 14, began to feel dizzy and could not move. The applicant approached SC who was lying on the bed and started to rub his hands over his body. The applicant removed SC's school pants, boxer shorts, shoes and socks and then moved him round on his stomach and turned him so that he was across the bed. The applicant stood behind SC who felt a sharp pain to his anus and felt the applicant move about as though he was trying to push his penis into SC's anus. SC passed out. The next morning he woke up wearing a T shirt which was turned inside out. SC's anus was sore. 7 On 17 June 1999 SC told his father, who informed the police. A medical examination held on 20 June 1999 revealed that SC had suffered rectal trauma. 8 On 22 June 1999 the applicant contacted JT via the Internet and asked who was at home. Having discussed the matter with her mother, JT told him that she was alone. About 11.10 am he arrived at JT's house; she took him to her bedroom, having made that arrangement with her mother. Once there he was confronted by JT's mother. He had a full bottle of vodka with him. The applicant ran out the front door of the house. He was pursued by JTs stepfather and a friend, grabbed and held until the police arrived. The police located the applicant's vehicle and found a laptop computer in it. It revealed conversations with JT that morning. The police found a tube of what appeared to be a sexual lubricant on the applicant. The applicant was charged with the offences the subject of counts 2, 3 and 5 on 22 June 1999 and granted bail the following day. Count 4 9 KL had a severe intellectual disability and was a resident of Warrah Village at Dural. It is a disability service centre and had about 40 patients residing there. KL lived in a block called Banksia House with five other patients and a carer. With the patients in bed, the carer went to bed about 10.30 pm. Her room was next to that of KL and another patient. 10 During the early morning of 25 August 1999 the applicant became sexually aroused and went for a drive with the intention of going to Warrah Village to have sexual relations with somebody there. He knew that it was a school for disabled children. He went there because he thought that he would not get caught. 11 He entered Banksia House, used the bathroom, took a jar of vaseline from the shelf, entered KL's room and saw her sitting up and awake. He went past another patient to KL's bed. He gestured to her to lie down and took her pyjamas pants off so that she was naked from the waist down. She turned onto her side and then onto her stomach. He rubbed vaseline on her anus and inserted two fingers to about half their length into her anus and moved his fingers backwards and forwards inside her anus. He was masturbating himself with his other hand. He stopped and tried to put her pants back on. KL started to cry. He heard a noise coming from the room next door. He ran out of the bedroom, caught a glimpse of a person (the carer) near the doorway and continued past the person to the kitchen. He left the building, went to his car and drove away. Later that day he disposed of his clothes. 12 About 3.35 am on 25 August 1999 the carer was awoken by the crying of KL and went to her aid. She saw the attacker leave the premises, She found KL naked from the waist down and her nappies, pilchers and pyjama pants amongst the bedclothes. A jar of vaseline was on the floor next to the bed. KL had vaseline on her anus. 13 The carer notified the manager who, in turn, notified the police. The applicant was seen on the premises by a witness who turned on his headlights. 14 At 5.20pm on 25 August 1999 the applicant attended Eastwood Police Station with his solicitor, a psychologist and his father. During his electronically recorded interview he made full admissions. This offence was committed whilst the applicant was on bail. 15 The charges taken into account on count 4, namely committing an aggravated act of indecency and aggravated indecent assault arose out of the events leading to the insertion of the fingers in the anus. 16 Count 5, namely publishing an indecent article, that is child pornography and the offences taken into account emerged after an examination of the applicant's laptop and home computers and materials seized from his home disclosed child pornography. Further, he had been actually engaged in trading child pornography on the Internet. Police also found an imitation firearm. 17 The applicant was born on 18 June 1971 and married in December 1997. As at 25 August 1999 his wife had left him about 2½ months previously. The applicant's record did not disentitle him to leniency, there being only some driving offences in the period 1989-1992. Dr G H Aitkens, a family friend of over 20 years explained that the applicant was an adopted child with a caring father. Until the age of 14 when his parents' marriage began to disintegrate he had a stable childhood. His relations with his adopted mother were strained on occasions. When his adoptive parents separated he was aged 16. He stayed with his father. He left school halfway through Year 11 not having applied himself adequately to his studies. He worked mainly with his father until his father's business collapsed. The applicant then held various positions, being particularly interested in computer technology. His employment record is good. Dr Aitkens wrote: "… there is an underlying personality trait present and combined with environmental and developmental issues would explain abnormal behaviour patterns". Dr Aitkens thought that with psychiatric care and treatment the applicant had responded and would continue to respond. 18 The judge described the detailed report from Dr W E Lucas, a consulting psychiatrist, as very helpful. It was. The applicant told Dr Lucas that his sexual problems found expression when he bought a computer. He was aged about 22 or 23. He began accessing child pornography issues, became addicted and began looking for that sort of thing eventually masturbating to orgasm daily. He said he occasionally fantasised about children. He became absorbed by the Internet and in watching images of pre-pubescent children involved in sexual activity and watching sexual intercourse. A significant amount of what he watched involved anal sex. Dr Lucas wrote: "I asked if he had been thinking about these sorts of activities with young people before buying a computer. He had had no thoughts, 'really', but when I pressed him he said that he knew that this material was on the Internet and he knew he would be attracted to it. His wife did not know about his use of the Internet - he used it after she went to sleep or when she was at work." 19 The applicant told Dr Lucas that his only real life contact was with the young people against whom he had offended. Dr Lucas further wrote: "About how he saw his offences in retrospect he said he was 'incredibly remorseful' and had realised his victims would not forget and might be damaged by the experience. He said he was very anxious as he did not know what had compelled him to carry out the acts. I enquired about his current fantasy life and he said it was 'shattered'. He made other remarks suggesting that the experiences or counselling had stopped the fantasies." 20 Dr Lucas noted the degree of risk which the applicant was prepared to take when committing offences with JT and SC. 21 Notwithstanding the applicant's comparative frankness, Dr Lucas thought that the nature of the offences and the different character and greater seriousness of the last offence suggested that there was more to know about the applicant and that this would probably emerge only in a lengthy programme of treatment. The applicant told Dr Lucas that he needed help. 22 Dr Lucas thought that the applicant was clearly suffering from a sexual disorder and that the offence against the disabled girl, KL, must cause considerable concern in terms of the nature and extent of the applicant's sexual disorder, the risk of re-offending and the need for treatment. 23 Dr Lucas said that there were some indications of anti-social traits in the applicant's personality but he should not be described as having an anti-social personality disorder. Dr Lucas expressed this opinion: "[MJK] has committed serious sexual offences and there are indications he has some form of sexual disorder although the usual diagnostic criteria for paedophilia, strictly applied, are not met. However, [MJK] has sexually assaulted children, in the fourteen to fifteen age group, one of them a male, and demonstrated his interest in such victims through his involvement with the Internet and in his fantasy life. It is difficult to estimate his chances of re-offending but it is obvious that unless [MJK] undertakes intensive and long term treatment and, when he does return to the community, is supervised for a lengthy period then there may well be a significant risk of recidivism. Although arrest, conviction and punishment will amount to a chastening experience, this in itself cannot be relied upon to prevent re-offending. During imprisonment [MJK] should be afforded every opportunity to seek suitable counselling and treatment. The nature of his offences should mean that he will be carefully assessed before considered for parole and that firm conditions will be imposed on him when released." 24 After the offences of June 1999 the applicant consulted Mr W J Taylor, a clinical psychologist, and was undergoing treatment at the time of the offence of 25 August 1999. Ironically, he had had a session with Mr Taylor on the day before that offence. 25 In his report of 19 July 1999 Mr Taylor remarked that the applicant had expressed considerable remorse and the hope that the victims were not mentally scarred and that he was very sorry for them. He had also sought help from his minister. 26 Mr Taylor wrote: "[MJK's] responses on the tests administered to him indicated that he has rather unstable and immature personality functioning. He has a somewhat histrionic and impulsive personality adjustment. There are indications of moderately severe depression. He has a mild predisposition towards substance abuse." 27 Mr Taylor wrote that it was consistent with the applicant's type of adjustment that he would also engage in a rich fantasy life and may be prone towards a degree of dissociative thinking. 28 Like Dr Lucas, Mr Taylor thought that the applicant was of at least above average intellectual ability. However, Mr Taylor added that the applicant does not have development of personality and emotional resources commensurate with his level of ability. It was very likely that he had developed a vivid fantasy life concerning sexual matters. He was also very immature. Mr Taylor thought it was likely that more understanding of the nature of the applicant's fantasy life would become evident as his therapy progressed. As at the date of his report the applicant and Mr Taylor thought that the applicant's risk of re-offending was quite low. 29 In his report of 3 July 2000 Mr Taylor recorded that the applicant had expressed considerable remorse. He had been studying towards a Bachelor of Business degree while in custody. Mr Taylor confirmed his earlier assessment that the applicant has inadequately developed emotional and personality resources and instability in his personal functioning. He has a low threshold for erotic discharge. He tends to be somewhat short-sighted and not consider the consequences of his behaviour in advance. 30 Mr Taylor wrote: "His score on the Statistical Information on Recidivism Scale was plus 6. It has been found that among offenders who score in this range about 50% are not likely to commit an indictable offence in the future." 31 Mr Taylor expressed this opinion: "It is clear that [MJK] is in need of intensive psychotherapy over a considerable period of time to assist him in gaining appropriate insight into his behaviour as well as assisting him to develop resources so that he could be in a better position to lead a productive life in the future. [MJK] does have some insights concerning the nature of his behaviour which has led him to committing the present offences. Although he has been seeking psychotherapy within the prison system it appears that this has not been available and that he has only had an occasional counselling session. Clearly [MJK] is in need of ongoing psychotherapy and treatment for his sexual psychopathology. It is noted that his score on the Statistical Information on Recidivism Scale suggests that he has about an average potential for recidivism. Clearly his potential to reoffend is going to depend upon the extent to which he is provided with, and can benefit from, a therapeutic programme whilst he is in gaol. As stated earlier he is motivated for such a programme. Providing this motivation remains high and he does receive such a therapeutic programme then his chances of reoffending in the future would be significantly lower. It would be desirable throughout the time that he is in treatment (if it can be made available) to reassess his progress so that more accurate information concerning the likelihood of his reoffending can be obtained." 32 The applicant gave evidence in which he acknowledged the seriousness of the offence, that he was ashamed of what he had done and how he had especially hurt KL and that he needed and wanted help, The applicant also detailed the extensive support his father had given him. He proposed to live with his father on his release and to work in a small business with him. The applicant said that he was very anxious to learn why he had done so much wrong so as to make sure that it did not happen again. The applicant was not cross-examined by the Crown 33 The applicant's father stated that he tried to visit him on every visiting day. He estimated that in the year that had passed he had visited his son 120 or 130 times. He had discussed the offence in detail with his son including who the victims were and the effect on them. 34 The father stated that they had discussed how the applicant could overcome his problem with his behaviour, that he would love to have his son back home and that his son would participate in the small business which had been established. He was prepared to ensure that his son participated in therapeutic programmes and counselling. The father nominated three people who were prepared to help him in the management of his son. 35 The Reverend H T Cox, the Senior Pastor at St Paul's Anglican Church, Castle Hill has known the applicant since 1994. Mr Cox believed that the applicant was genuinely remorseful for his behaviour and recognised the seriousness of his actions and the need to undergo serious rehabilitation and place himself in accountability relationships to ensure that he did not offend in sexual matters again. The Church was committed to providing support and prepared to offer the applicant and the community a regime in which the applicant could operate as part of the rehabilitation process. 36 Neither the father nor Mr Cox was cross-examined. The judge accepted their evidence. The judge accepted that the applicant was genuinely remorseful for his behaviour and recognised the seriousness of his actions. 37 The judge allowed a discount of 25 per cent for the pleas of guilty and held that those pleas reflected contrition. The judge held that as to count 4 involving the disabled KL the applicant was entitled to a further discount because in going to the police he had brought upon himself the penalty for that offence. The judge gave the applicant the benefit of a finding that he may well not have been caught. At any Court hearing the evidence may have been insufficient, particularly of identification. 38 The judge thought that in respect of each of counts 1, 2 and 3 the starting point was a sentence of 4 years imprisonment. He reduced that sentence in each instance to 3 years for the plea of guilty. The non-parole period would be 2 years 3 months. He imposed fixed terms as he made each of those sentences cumulative. He did so because each offence involved a different child, it was planned and calculated and involved in several instances the deliberate use of liquor to put these children in a situation where the offender's sexual appetites might be gratified. As to count 4 the judge's starting point was 16 years. He reduced that figure by 25 per cent for the early plea of guilty resulting in a figure of 12 years. For the applicant having come forward without necessarily being likely to have been caught the judge allowed a further discount of 2 years. That resulted in a sentence of 10 years with a non-parole period of 7 years 6 months, cumulative on the accumulated sentences for counts 1, 2 and 3. The judge thought that the appropriate penalty on count 5 was 2 years but that it was appropriate for that sentence to be concurrent. 39 The judge took into account deterrence, rehabilitation and retribution and that the offences shocked the public. He referred to the horrible nature of the offence on the disabled child, KL being completely helpless, the offence being sickening and revolting and the feelings of revulsion generated by the applicant's conduct. The judge correctly described the offence as a grave one. Fortunately, it did not last for very long and did not involve penile anal intercourse. But what happened was very bad. 40 The judge correctly found that the applicant needed at least several years of supervised control after he left prison. He fixed a non-parole period of 2½ years. That should be a little longer in view of the terms of Dr Lucas' report. 41 The discounts allowed by the judge were well within the permissible range and are not fairly open to challenge. 42 The applicant submitted that each of the sentences imposed on counts 1, 2 and 3 was manifestly excessive in itself. He submitted that the acts of intercourse were consensual. As to the act of homosexual anal intercourse on SC it must be kept in mind that this 14 year old lad had consumed a substantial quantity of vodka, had begun to feel dizzy and could not move. He was moved around by the applicant. The materials suggested that SC had been involved in sexual activity and was not averse to participating in wayward sexual activity. Counsel for the applicant pointed out that count 1 occurred two weeks before CO's fifteenth birthday and count 2 occurred when JH was 15 years old. They were fairly forward in their attitudes and conduct and the applicant was given to understand that they had on occasions engaged in sexual activity. Counts 1 and 2 carry a maximum penalty of 8 years. Count 3 carries a maximum penalty of 10 years 43 It was submitted that the judge markedly overstated the position when he described the applicant's conduct covered by counts 1 to 3 (including the offences taken into account) as "reprehensible to an extreme degree". The conduct was reprehensible but the addition of the words "to an extreme degree" overstated the position. I doubt if that overstatement affected the length of the sentences. On each of counts 1 and 2 significant offences were taken into account. The conduct the subject of count 3 was very nasty with a young lad being invaded after consuming liquor provided by the applicant. 44 Counsel further submitted that it was not open to the sentencing judge to find that the applicant's conduct "involved in several instances the deliberate use of liquor in order to put the young people in a situation where the offender's sexual appetites might be gratified". This did not occur in every instance but it did occur as to the Castle Hill incident (Form 1, offence 1), count 2 and count 3. The judge's use of the phrase "several instances" was accurate. 45 Counsel pointed out that at no stage when considering the sentences on counts 1, 2 and 3 did the judge mention or apply the principle of totality. This would not have troubled me if at a later stage, when dealing with all the sentences, the judge had applied the principle of totality or mentioned it in such a way as to indicate that he was applying it.The starting point of 4 years for each of counts 1, 2 and 3 taking into account the offences earlier mentioned is not fairly open to challenge. 46 The applicant submitted that the judge made a factual error regarding the circumstances of count 4 in that he stated, "He (the applicant) was masturbating himself with his right hand, although because she started to cry and there was noise from next door, he desisted and ran out of the bedroom". The desisting refers in the context to manoeuvring the fingers in the anus. The applicant's account, which was incorporated in the agreed statement of facts was that he desisted before any noise was made. There was no crying and no noise before he desisted. It seems that he desisted because he realised the enormity of what he was doing and was trying to put her pants back on. It was after he heard her crying and a noise coming from the room next door that he "bolted". The digital penetration was brief being estimated from about 30 seconds to a minute. The factual inaccuracy increased the applicant's criminality slightly but overall its significance was limited. 47 Even allowing for the corrected statement of the facts the offence the subject of count 4 is a very serious offence. It generates feelings of disgust. However, a starting point of 16 years was too high and manifestly excessive. The correct starting point was 14 years. With the deduction of the two discounts mentioned, which total about 37 per cent, that results in a sentence which I would round off at 9 years because any lesser sentence would not adequately reflect the criminality of the applicant and the gravity of the offence. I have taken into account the factual error on which the applicant relied. 48 The next matter which arises is the application of the principle of totality. The judge did not mention this either expressly or implicitly. Having determined what he regarded as the correct sentences for counts 1 to 4 (both inclusive) he wholly accumulated each of them. That resulted in sentences totalling 16 years 9 months. Applying the principle of totality, that is excessive. However, on the approach I have earlier outlined, which does not include any adjustment for totality, the sentences on counts 1 to 4 would total 15 years 9 months (6 years 9 months in total on counts 1, 2 and 3 and 9 years on count 4). Taken overall this is excessive and some allowance must be made because of the application of the principle of totality. This can best be done by making two of the sentences partially concurrent and imposing sentences which in total result in imprisonment for 14 years. I would not interfere with the sentence on count 5. 49 There are matters which are capable of constituting special circumstances, namely, the accumulation of sentences, the need for close and extended supervision to ensure that upon his release the applicant receives adequate counselling and treatment and this being his first custodial sentence. However, having regard to the gravity of the criminality the non-parole period should not be less than 11 years. Further, supervision for 3 years should be sufficient notwithstanding the difficulties of the applicant's sexual disorder. This meets Dr Lucas' recommendation of supervision for a lengthy period. 50 I have taken into account all the offences which the judge took into account and on the counts on which he took them into account as summarised at the start of these reasons. I propose the following orders: (1) Leave to appeal granted. (2) Dismiss the appeals against each of the sentences of imprisonment of 2 years 3 months fixed term on each of counts 1, 2 and 3, being on - count 1 from 26 August 1999 to 25 November 2001; count 2 from 26 November 2001 to 25 February 2004; count 3 from 26 February 2004 to 25 May 2006. (3) Dismiss the appeal against the sentence of imprisonment of 2 years fixed term from 16 August 1999 to 25 August 2001 on count 5. (4) Appeal allowed against sentence of imprisonment of 10 years starting on 26 May 2006 with a non-parole period of 7 years 6 months on count 4. Sentence quashed. (5) In lieu of the sentence imposed on count 4,the applicant is sentenced to imprisonment for 9 years starting on 26 August 2004 with a non-parole period of 6 years starting that day and ending on 25 August 2010. 51 DOWD J : I have seen the judgment of Smart AJ. I agree with the proposed orders and with his Honour's reasons therefor. 52 The orders of the Court will be as proposed by Smart AJ. ******** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.