New South Wales Court of Criminal Appeal CITATION: FAM v R [2008] NSWCCA 167 HEARING DATE(S): 16 July 2008 JUDGMENT DATE: 8 August 2008 JUDGMENT OF: McClellan CJ at CL at 1; Hidden J at 2; Fullerton J at 3 1. Leave to appeal be granted. DECISION: 2. The sentence imposed in the District Court be quashed. 3. In lieu thereof the applicant is sentenced to a non-parole period of 18 months commencing on 1 June 2007. He is to be released to parole on 30 November 2008, the total term to expire on 30 November 2009. 4. The orders otherwise made by the sentencing judge are confirmed. CATCHWORDS: CRIMINAL LAW - appeal against sentence - whether sentence manifestly excessive - one count of aggravated indecent asault - one offence of possessing child pornography on Form 1 LEGISLATION CITED: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 CATEGORY: Principal judgment CASES CITED : Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 [2002] NSWCCA 518; 56 NSWLR 146 PARTIES: FAM (App) The Crown (Resp) FILE NUMBER(S): CCA 2007/3130 COUNSEL: Applicant in person D Arnott SC (Resp) SOLICITORS: Applicant in person Director of Public Prosecutions (Resp) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/41/0182 LOWER COURT JUDICIAL OFFICER: Williams DCJ LOWER COURT DATE OF DECISION: 1 June 2007 IN THE COURT OF CRIMINAL APPEAL 2007/3130 McCLELLAN CJ at CL HIDDEN J FULLERTON J 8 AUGUST 2008 FAM v R Judgment 1 McCLELLAN CJ at CL: I agree with Fullerton J. 2 HIDDEN J: I agree with Fullerton J. 3 FULLERTON J: The applicant seeks leave to appeal against a sentence imposed in the District Court by His Honour Judge Williams on 1 June 2007 after he entered a plea of guilty to one count of aggravated indecent assault contrary to s 61M(1) of the Crimes Act 1900 and after inviting his Honour to take into account one offence of possessing child pornography contrary to s 91H(3) of the Crimes Act, on a Form 1. 4 His Honour imposed a sentence of 18 months to commence from 1 June 2007 with a balance of term of 12 months. His Honour specified that the applicant was to be released to parole on 31 December 2008 with the balance of the term to expire on 31 December 2009. It is obvious that his Honour miscalculated the expiration dates of both the total sentence and the non-parole period having regard to the specified length of both the non-parole period and the balance of the term. Despite the fact that the Department of Corrective Services have apparently corrected the error in their custodial records, the Crown conceded that this Court should nevertheless intervene to the limited extent of specifying that the applicant is to be released on parole on the 30 November 2008 and that the total term should expire on 30 November 2009. 5 In fixing a non-parole period of 18 months against a term of 2 years and 6 months his Honour took into account, in the applicant's favour, that it would be his first time in custody and that the sentence was likely to be served in some form of protection thereby justifying a departure from the statutory ratio otherwise fixed by s 44(1) of the Crimes (Sentencing Procedure) Act 1999. His Honour also properly recognised that the offence carries a maximum penalty of 7 years imprisonment and a standard non-parole period of 5 years under the Crimes (Sentencing Procedure) Act. While his Honour did not regard the offending as within the mid-range of objective seriousness, he regarded the fact that the legislature had provided a standard non-parole period as a reflection of community concern in regard to offending of the kind in question and, after taking into account the offence in the Form 1, that no other penalty other than a sentence of imprisonment could be justified. Relevant facts 6 The agreed facts were shortly summarised in his Honour's remarks on sentence. For the purposes of the application for leave to appeal it is sufficient that they are recited in the same terms: "The offence occurred on 21 November 2005, the victim being Mr M's 12 year old son. Mr M separated from his wife and on that day the child was staying with Mr M. They slept in the same bed. At 4am the complainant woke and found Mr M touching his penis and testicles, having undone his boxer shorts. The complainant rolled away but could not sleep. The next morning he has told his mother. When speaking to the police the complainant additionally said that he had seen pictures of young boys in Mr M's computer. The computer was then seized. On three hard drives 2,346 picture images were found and 67 short films of child pornography involving young boys, many of the images being in the deleted files directory…" The proceedings on sentence and his Honour's findings 7 The applicant was represented by counsel in the sentence proceedings but appears on his own behalf in this Court. 8 The applicant did not give evidence on sentence but relied upon a report by Dr Bruce Westmore, forensic psychiatrist, and various testimonials provided by the applicant's family and friends. His Honour also had available to him a victim impact statement, a pre-sentence report prepared by the Probation and Parole Service and the offender's criminal antecedents which recorded traffic offences related to his driving with a prescribed content of alcohol. Although his Honour appears to have wrongly counted the number of driving offences, he did not regard the criminal record as bearing relevantly upon the sentence to be imposed. Accordingly, it has no bearing on the challenge to the sentence that the applicant seeks to mount in this Court. 9 His Honour referred to the report prepared by the Probation and Parole Service in the context of considering the extent to which the applicant acknowledged responsibility for his criminal offending with a view to his Honour assessing the applicant's willingness to engage in offence-specific treatment in a sex offenders program in custody. He expressed concern at the applicant's inadequate level of disclosure, not only in regards to the indecent assault on his son but his possession of significant quantities of child pornography. His Honour also set out in a summary form what he considered to be the relevant matters in Dr Westmore's lengthy report. He emphasised, in particular, the explanation the applicant offered for the assault on his son and his possession of the child pornography, again as an indication of his preparedness to acknowledge and accept the extent of his offending. In that regard his Honour noted that the applicant claimed that when he touched his son's genitals he was intent on treating what he considered to be a problem with his son's foreskin and that he decided to examine it when his son was sleeping with him in order to save the young boy from embarrassment. He denied that his actions were sexually motivated. In regards to his possession of the child pornography, he claimed that the images were for comparative purposes so as to better understand his son's condition and not for his own sexual stimulation. Against that background Dr Westmore noted: "…I am not in a position to dispute the voracity of his account and in the absence of any other relevant history while his account is unusual I am unable to diagnose him as having a psycho-sexual disturbance.... Again, based on the reliability of his history his risks of re-offending are probably low to non-existent. It is likely he had been significantly stressed by the charges against him and that of itself will act as a powerful deterrent toward any further inappropriate sexual behaviour towards his children." 10 The sentencing judge, noting that the applicant did not give evidence in the proceedings, concluded that he was unable to accept the account the applicant gave to Dr Westmore. The applicant challenges that finding. In that connection I note that the officer who prepared the pre-sentence report also regarded the offender's account of his behaviour as highly implausible, a view it would seem that also commended itself to his Honour. 11 Although his Honour rejected the applicant's explanation he did not find that the offending could properly be classified as being within the mid-range of objective seriousness. His Honour did, however, regard the moral culpability of the offence on indictment as serious given that the victim was the applicant's son. On the other hand, his Honour gave the applicant the benefit of a finding that since he has been otherwise a good parent some leniency would be afforded him. 12 In addition, and despite the fact that his Honour considered that the issue of re-offending, rehabilitation and remorse had been only equivocally resolved having regard to both the pre-sentence report and Dr Westmore's report, he accepted that the applicant was a person of good character. He noted that he was aged 45 at the date of sentence and was the youngest of three children who had been brought up in a harmonious family setting. He married in 1990 and has three children ranging in age from 16 to 12 with the victim of the offence being the middle child. The marriage dissolved in 1999 after a year's separation. At the time of sentence he was in a new relationship which was stable and supportive. His Honour also noted that the applicant had been in continuous employment although was at the time of sentence on stress leave, the result of attending an unrelated traffic fatality the previous year. The grounds 13 The applicant relies on a number of matters which he claims his Honour either failed to give adequate weight to in the calculation of sentence, or wrongly took into account in calculation of sentence such as to justify this court imposing a lesser penalty. 14 He claims he has been recently diagnosed with a psychiatric disorder, namely Asperger's Syndrome, and that this provides an explanation for his criminal behaviour. There is no evidence of any kind verifying that the applicant suffers from that condition. In fact it appears as if the condition is self-diagnosed. I note that despite Dr. Westmore's recitation of the applicant's medical history, family history and personal history, and a focused mental state examination, he did not diagnose the applicant as suffering from a psychiatric condition of any kind. In circumstances where there is nothing even remotely substantiating the applicant's claim that he suffers from Asperger's Syndrome, I do not regard his claim as having any bearing on the sentence imposed at first instance or on this appeal. 15 The applicant next complains that the victim impact statement was incorrect in a particular respect, namely the claim by the young boy that his grandparents do not believe him, reflected by the fact that he does not receive their telephone calls or Christmas gifts in contrast to his siblings, and further that this is hurtful because he feels mistreated by them. The error is said to be revealed in a statement from the child's grandmother to the effect that she has made repeated attempts to make contact with her grandchildren, including the victim, and to send them presents. She considers that these attempts are being frustrated deliberately by applicant's former wife. This, it is said by the applicant, should render the victim impact statement an unreliable source of information for the sentencing court. 16 His Honour set out the victim impact statement in full and concluded that the boy had suffered significantly from his father's offending. This was a conclusion open to him quite independent of the boy's claim to feel alienated from his grandparents, and irrespective of whether that is the true position or not. I am not satisfied that his Honour gave unnecessary emphasis to the victim impact statement or that it was unduly weighted in sentencing terms. 17 The applicant complains that the pre-sentence report did not reflect the entirety of the interview with the Probation and Parole officer. This is to be expected when the reason a sentencing judge orders a pre-sentence report is to receive the insights of the Probation and Parole Service, not a verbatim account of the course of interview with an offender. The applicant also complains that his Honour deliberately skewed the content of the report so as to reflect negatively on him because his Honour did not give sufficient weight to that part of the report where the officer considered that the applicant did not display any significant issues of sexual deviancy. The weight to be given to the reports of both the Probation and Parole Service and Dr Westmore were matters for his Honour's assessment. I do not consider that he has given undue weight to the opinions expressed in the reports or to have failed, in any material respect, to fairly reflect the reported findings in his reasons for sentence. 18 As I have already emphasised, in circumstances where the applicant neither gave evidence in the sentence proceedings nor objected to the tender of the pre-sentence report, his Honour's rejection of the applicant's explanation for his offending (which I note has some resemblance to an attempt to traverse his plea) was a finding well open to him and in no way reflective of error. I note that in the applicant's oral submissions to this Court he attempted to explain his criminal offending innocently by way of various unconvincing analogies but did not submit that his behaviour was anything other than criminal, a clear concession that is reflected in the plea of guilty and his express request that his Honour take into account the equally serious offending constituted by the offence on the Form 1. 19 In his written submissions the applicant complained that his Honour did not approach the offence in the Form 1 in the way mandated by Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 [2002] NSWCCA 518; 56 NSWLR 146. In support of that submission he extracted the following passage which appears at [9]: "5. A sentencing court should normally specify the increase in penalty flowing from the taking into account of an offence or offences on a Form 1. Ordinarily a sentencing court should indicate whether or not a significant discount has been accorded because of the use of the Form 1 procedure but need not ordinarily specify more precisely the size of the discount." 20 Reference to the judgment reveals that this extract was one of the eight guidelines proposed by the Attorney General which the Court did not adopt (see [44] and [45]). I am satisfied that his Honour's approach to the offence on the Form 1 was in accordance with the guideline judgment. Whilst he was unaware of the precise nature of the images, he regarded their very considerable number, together with the existence of an equally considerable number of short films, as revealing a serious level of offending over a period of time which of itself warranted a sentence of full-time imprisonment. His Honour said: "…The collection of such material is likely to encourage those who are actively involved in corrupting the children involved in the sexual activities depicted and who recruit and use those children for the purpose of recording and distributing the results. The offence of possessing child pornography cannot be characterised as a victimless crime. The children in the end are the victims, see R v Jones (1999) 108 A Crim R at p.50…" 21 He considered that an appropriate penalty, reflecting the totality of the offending constituted by the indecent assault and the possession of child pornography, was one of 3 years imprisonment which he reduced to 2 years and 6 months for the plea of guilty. For my part, I can discern no error in his Honour approach or in the result. Orders 22 The orders I propose are: 1. Leave to appeal be granted. 2. The sentence imposed in the District Court be quashed. 3. In lieu thereof the applicant is sentenced to a non-parole period of 18 months commencing on 1 June 2007. He is to be released to parole on 30 November 2008, the total term to expire on 30 November 2009. 4. The orders otherwise made by the sentencing judge are confirmed. ********** 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.