New South Wales Court of Criminal Appeal CITATION: R v Hunt [2005] NSWCCA 210 HEARING DATE(S): 3 June 2005 JUDGMENT DATE: 9 June 2005 JUDGMENT OF: Studdert J at 1; Howie J at 28; Latham J at 29 DECISION: Leave to appeal granted; appeal dismissed. Crimes Act, ss 61M, 578C LEGISLATION CITED: Drug Misuse and Trafficking Act, s 32 PARTIES: Regina v Michael Shane Hunt FILE NUMBER(S): CCA 2005/517 W. Dawe (Crown) COUNSEL: L. Flannery (Appellant) S. Kavanagh (Crown) SOLICITORS: S. O'Connor (Appellant) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/21/1111 LOWER COURT JUDICIAL OFFICER: Knight DCJ IN THE COURT OF CRIMINAL APPEAL 2005/517 STUDDERT J HOWIE J LATHAM J Thursday 9 June 2005 REGINA v MICHAEL SHANE HUNT Judgment 1 STUDDERT J: The applicant, Michael Shane Hunt, pleaded guilty in the District Court to five offences and now seeks leave to appeal against the sentences imposed for those offences. 2 The first offence charged was that of supply a prohibited drug, namely cannabis leaf. The applicant was also charged with two aggravated indecent assaults, offences committed on a nine year old boy. There were two offences involving the publication of child pornography, and the judge was also asked to take into account an offence of possession of child pornography. 3 In relation to the drug offence, the sentencing judge imposed a term of imprisonment of one year to commence on 13 February 2003 and to expire on 12 February 2004. In relation to the fourth offence charged, namely a charge of publication of child pornography, the judge imposed a sentence of two years imprisonment to commence on 12 February 2004 and to expire on 11 February 2006. On the other offence of publication of child pornography, the judge imposed a sentence of imprisonment for one year to commence on 11 February 2006 and to expire on 10 February 2007. Then, in relation to the offences of aggravated indecent assault, the sentences imposed were partly concurrent and partly cumulative. For one of these offences, the judge imposed a term of imprisonment of two years to commence on 10 February 2007 and to expire on 9 February 2009, and for the other aggravated indecent assault offence the judge imposed a term of imprisonment of three years, to commence on 13 February 2008 and to expire on 12 February 2011. It was in relation to this last mentioned offence and the sentence for it that the matter on the Form 1 was taken into account. For this last mentioned sentence only, a non parole period was set. The judge set a non parole period of two years to expire on 12 February 2010. Hence, this left a period of twelve months during which the applicant would be eligible for release upon parole. 4 The drug offence was in a category for which s 32 of the Drug Misuse and Trafficking Act provides for a maximum penalty of ten years imprisonment. The aggravated indecent assault offences were offences for which s 61M(2) of the Crimes Act imposed a maximum penalty of two years imprisonment. The offences of publication of child pornography were offences for which s 578C(2A) of the Crimes Act provided for a maximum penalty of five years imprisonment. 5 The crimes were committed in the period between 1 January 2002 and 11 January 2003. The Form 1 offence of possession was expressed to be committed between 27 December 2002 and 13 February 2003. The supply of the cannabis was to three young children; the victim of the aggravated indecent assaults was one of these three young children, a boy aged nine. The publication of the child pornography was to the young children. The offences themselves and the circumstances in which they occurred were addressed in the remarks of the sentencing judge, in a fashion about which there has been no complaint, and I draw upon the remarks on sentence to deal with the objective facts. 6 The nine young old victim, his brother, who was twelve or thirteen years of age, and a boy friend of a like age, spent time at a holiday home owned by the family of the victim of the sexual assault located in the Wiseman's Ferry area. That home was next door to the home where the applicant was living. The applicant became increasingly familiar with the families of the children concerned and in particular the children themselves, and during the Christmas/New Year period of 2002-2003 the children and the family of the two brothers spent some three weeks at the holiday home. During that period the applicant spent much time with them. After the holiday had ended and the children had returned with their parents to Sydney, the mother of one of the boys found, inter alia, some home-made bongs in her son's bedroom and a plastic sachet containing cannabis leaf. The parents of the brothers were then alerted to the discovery and the brothers were questioned. Inquiry of them led to the production by them of four further sachets of cannabis leaf, two pornographic magazines, tobacco products and a number of CDs and a floppy disc. One of the CDs had "X" written on it, and when viewed was seen to contain hard-core sex scenes of adult males involved in sex acts with very young children of both male and female extraction. Police were alerted. The children were interviewed and, in due course, charges were laid against the applicant. 7 In relation to the supply of prohibited drug offence, on an occasion between 2 and 5 January 2003 the applicant handed to each of the three boys two sachets of cannabis leaf each, and over the next week the children shared cones and joints with the applicant whilst out fishing with him and in other places where they were not in direct contact with their parents. The applicant supplied not only the cannabis leaf, but the equipment necessary to use it, being metal hash pipes and rollie papers. 8 The first of the sexual offences was committed between 1 January and 31 January 2002, and the second between 1 February 2002 and 31 March 2002. Each of the indecent assaults involved the applicant gently squeezing the young boy's genitals. The earlier offence was committed in a spa bath at the applicant's home and the latter of the offences was committed again in the applicant's home, this time whilst the child was playing with the applicant's computer. On each occasion the victim was clothed. 9 In relation to the child pornography offences, between 27 December 2002 and 11 January 2003 the three boys visited the applicant at his home to watch downloaded movies on the computer or to play computer games. On a number of occasions during that period whilst the children were watching the computer, the applicant switched on downloaded images of graphic child sex scenes that had been stored by the applicant on his computer hard drive. Then, later when the victim of the sexual assaults was spoken to concerning the items located in his home, he gave his parents a CD with the letter "X" written on it. That CD had been given to the young child together with a music CD. The CD marked "X" was viewed by police and found to contain graphic video clips of sex scenes involving adult males and very young male and female children. 10 Turning to the Form 1 matter, following the applicant's arrest a search warrant was executed at his home and an extensive collection of pornographic literature in the form of magazines, CDs and videos was found. An analysis conducted by a police operative revealed extensive downloaded pornographic material, both adult and child, and also captured images of the children involved in these matters. 11 The sentence judge, having summarised the facts concerning the offences, went on to say: "The offences which have come before me, if viewed individually, whilst being regarded as serious breaches of the criminal law, would be generally regarded as being towards the middle to bottom of the scale for offences of this nature. However the fact is that when viewed in combination they reveal you to be a predatory paedophile and I should add that the existence of these offences discloses great moral and criminal turpitude. Any right thinking member in the community regards the protection of the young as a matter of very considerable concern and offences committed against children of this nature as being a real and substantial evil and the people perpetrating these types of offences as being people committing major criminal offences." 12 The applicant was thirty-nine years of age at the date of sentence. He had a formidable criminal record dating back to the time he was eighteen years of age. That record included offences of break enter and steal and drug offences, and, then, in April 1989 he was convicted of murder. The sentence initially imposed for that crime was redetermined and the redetermined sentence expired in September 2000. However, in May 2000 he was convicted of offences of abusing and neglecting a child and was placed on a recognizance for a period of two years. Hence the subject indecent assault offences were committed before the bond expired. 13 The applicant was an adopted child who had behavioural problems and learning difficulties. He left school before completing Year 9 and without formal qualifications. His employment history included positions of a labouring type: he did process work, factory work and butchering. The judge observed that the longest period during which he held a position was when he was with the State Railways for some eighteen months, but there were some significant periods of unemployment. 14 Before the commission of the subject offences, the applicant sought treatment from a psychiatrist. The applicant saw Dr O'Dea in December 2001 and later on two occasions in February 2002. Dr O'Dea diagnosed the applicant to be suffering from paedophilia and recommended testosterone-lowering medication. Unhappily, the applicant did not keep follow-up appointments. Dr O'Dea, in a report provided for the sentencing judge, maintained the diagnosis of paedophilia, which the doctor noted on the history as being "longstanding and difficult to control". Dr O'Dea considered on clinical grounds the risk of the applicant committing further sexual offences in the long term was "significantly high". 15 As the sentencing judge noted, the pre sentence report from the Probation and Parole Service and the psychological report from the Department of Corrective Services also indicated that the applicant presented a high risk of re-offending in relation to paedophilia. 16 The applicant has submitted before this Court that the effective total sentence imposed is manifestly excessive because: "(i) the individual sentences imposed on counts 2, 3 and 4 are manifestly excessive, and, or (ii) his Honour failed to properly apply the totality principle, and, or (iii) his Honour failed to allow in his total sentence sufficient time for the applicant to spend on parole." (i) The individual sentences imposed on counts 2, 3 and 4. 17 The judge here indicated that he allowed a discount of forty percent overall, made up of twenty-five percent for the utilitarian value of the guilty pleas, five percent for contrition, and ten percent for the consequence that the victims did not have to give evidence. It was submitted on the applicant's behalf that the sentences imposed for the aggravated indecent assaults were very much towards the top of the range taking into account the pleas of guilty, even allowing for the Form 1 matter and for the circumstance that the applicant was on a bond when these two offences were committed. It was also submitted that the sentence imposed concerning the publication of pornography on the computer was towards the top of the range. 18 I consider that the allowance of a forty percent discount for the factors identified by his Honour to have been over-generous. However, taking into account the twenty-five percent discount appropriately allowed for the utilitarian value of the applicant's pleas and making due allowance for contrition and the avoidance of the need for the children to give evidence, it seems to me that each of the sentences for the second, third and fourth offences was within the available range of sentencing discretion. I observe in relation to the sentence imposed for the second of the indecent assaults that the Form 1 matter, which his Honour took into account when determining the sentence appropriate for that offence, was by no means a trivial offence. (ii) The totality principle 19 The various offences committed by the applicant were discrete offences, albeit regarded by the judge when viewed in combination as revealing the behaviour of "a predatory paedophile". The judge was required to fix appropriate sentences for each of the crimes. To my mind, he did so, and in partially accumulating the sentences for the second indecent assault, he was obviously applying himself to the consideration of totality. Looking at the overall effect of the accumulation of sentences, I consider that the total effective sentence of eight years imprisonment was appropriate, having regard to the applicant's criminality involved in these offences. (iii) The period available for parole 20 The effect of the sentences as structured was to allow the applicant the opportunity for parole for a period of one year only. It was submitted that this was not sufficient having regard in particular to the following evidence from Dr O'Dea (para 37 of his report): "There is no good evidence that I am aware of that psychological treatment programs alone would adequately manage and minimize Mr Hunt's risk of further sex offending behaviour in the community in the long term. Rather, the evidence to date suggests that the most effective way of managing and minimizing this risk in the community in the long term would be by compliance with treatment with testosterone lowering medication (such as Cyproterone Acetate aka Androcur). This medication should be prescribed in the context of a structured and supervised community forensic psychiatric and psychological management regime that would include, amongst other strategies, alcohol and other drug counselling and other cognitive behavioural therapeutic (CBT) interventions tailored to his specific needs and level of functioning. It seems reasonable to assume that he would require to remain abstinent from alcohol and other drug abuse in the long term to assist in managing and minimizing his risk of further sex offending behaviour." 21 It is to be observed that the applicant did not cooperate with Dr O'Dea when that doctor advised testosterone lowering medication early in 2002 (para 14 above). There was no reason to assume the applicant would be any more likely to cooperate in following a medication regime when he is eventually released on parole. 22 The report from the Department of Corrective Services earlier mentioned contained a recommendation, accepted by his Honour, concerning the CUBIT programme. The author of the report placed before the judge wrote: "If Mr Hunt is given a custodial sentence, it is strongly recommended that this sentence be of enough duration that he would be able to complete one of the treatment programmes currently available in Area 3 of the Malabar Special Programmes Centre, Long Bay Correctional Complex. The Custody-Based Intensive Treatment Programme (CUBIT) is a prison-based residential treatment programme for men who have sexually abused adults, children or both. The programme targets issues specifically relating to sexual offending behaviour including arousal management, cognitive distortions and relapse prevention. Should Mr Hunt complete the CUBIT programme, on release from custody, he would participate in community-based maintenance programming designed to ensure that the gains made in treatment are maintained within the community. Any additional term imposed would facilitate his participation in this community maintenance programme." 23 The author of the report did not go on to indicate for how long any community based maintenance programme ought to continue following the applicant's release. 24 His Honour had a difficult sentencing task in this case and there was no evidence before him pointing to a necessity for some particular period of supervision after he was released on parole. His Honour expressed the view, having found special circumstances, that there was a need for a period of supervised treatment for up to one year. On the evidence before him, was there error in the structure of a sentence that allowed only for a maximum period of twelve months for supervision on parole? 25 There was no statutory requirement for the judge to provide for a longer period of eligibility for release upon parole and the CUBIT programme was one that would be completed before the applicant was released from prison. There was no evidence to indicate that a longer period than that which was set would serve any useful purpose in this case. Moreover, the reports the judge had were to the effect that the applicant presented a high risk of reoffending. 26 Even though the aggregate non parole period amounts to 87.5% of the total sentence, in the particular circumstances of this case I am not persuaded that the judge erred in setting the effective non parole period, and I conclude that the sentences imposed upon the applicant should not be disturbed. 27 I therefore propose that leave to appeal should be granted but that the appeal should be dismissed. 28 HOWIE J: I agree with Studdert J. 29 LATHAM J: I agree with Studdert J. ********** 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. 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