R v SBR [2012] NSWCCA 233

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v SBR [2012] NSWCCA 233 Hearing dates: 18 June 2012 Decision date: 18 June 2012 Before: McClellan CJ at CL at [1] Price J at [34] Button J at [35] Decision: Appeal dismissed Catchwords: CRIMINAL LAW - appeal - sentence - Crown appeal against sentence - whether identifiably separate periods of imprisonment should have been imposed for counts 1 and 2 - whether sentencing judge failed to properly determine objective seriousness for count 3 - no error demonstrated - appeal dismissed. Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act Cases Cited: Green v The Queen [2011] HCA 49; (2011) 86 ALJR 36 Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243 R v Cahyodi (2007) NSWCCA 1 R v JW [2010] NSWCCA 49; 77 NSWLR 7 Category: Principal judgment Parties: Crown (Applicant) SBR (Respondent) Representation: Counsel: R Herps (Applicant/Crown) J Stratton SC (Respondent) Solicitors: Solicitor for Public Prosecutions (Applicant/Crown) Legal Aid Commission of NSW (Respondent) File Number(s): 2009/207245 Decision under appeal Date of Decision: 2011-12-15 00:00:00 Before: North DCJ File Number(s): 2009/207245

Judgment 1McCLELLAN CJ at CL: The respondent pleaded guilty to three counts concerning child pornography. Counts 1 and 2 alleged that the respondent had produced child pornography contrary to s 91H(2) of the Crimes Act 1900. Count 3 alleged that the respondent had possessed child pornography contrary to the same section. He pleaded guilty shortly before the trial and was afforded a discount of 12½ percent by the sentencing judge. At the time that he was sentenced he asked the judge to take into account a single count of aggravated sexual assault under s 61M(1) of the Crimes Act on a Form 1. 2The maximum penalty for each offence was ten years imprisonment. The offence contrary to s 61M(1) of the Act has a standard non-parole period of seven years. 3Although the respondent pleaded guilty on 19 October 2010, the matter was not dealt with immediately. It was initially stood over for sentence to 25 February 2011 when submissions were received, however, defence counsel made an application that further reports be obtained and the matter was adjourned for a further six months. The respondent was ultimately sentenced on 15 December 2011, more than twelve months after his original plea. 4The sentences imposed were as follows: Counts 1 and 2:A fixed term of 12months imprisonment, both sentences to date from 9 December 2011. The form 1 offence was taken into account on count 1. Count 3:A fixed term of 12 months imprisonment to date from 9 June 2012. This sentence was made concurrent with the last six months of the sentences in relation to counts 1 and 2. 5Accordingly the total effective sentence was one of 18 months imprisonment. The sentencing judge suspended the entirety of the sentence pursuant to s 12 of the Crimes (Sentencing Procedure) Act. Short particulars of each of the counts are as follows: Count 1: produce child pornography:These photographs were taken on 20 November 2008 at the young person's grandfather's house at Bushby. The 14 images were taken in the early afternoon when the young person was asleep on a lounge chair wearing a red T-shirt. They were taken on the day of a family lunch when the young persons' father was out of the house speaking with neighbours. The 14 photographs show a view inside the young person's T-shirt which was being pulled out, or perhaps up, to expose one or both of her breasts. The images were largely focused on her breasts. The Form 1 matter: This photograph was taken on 2 November 2008 and appears within the same series of photographs the subject of count 1. In this photograph the respondent is depicted kneeling, with his lips in contact with the young person's side just above her hip. Count 2: produce child pornography:This count concerns 35 images taken in the early hours of 14 February 2009 at the respondent's residence. The respondent had taken the young person to Luna Park on 13 February. The 35 images show the young person asleep in the respondent's bed with her pyjama top above her breasts, leaving both breasts exposed. In some photographs the young person's hand partially covers her breasts. Count 3: possess child pornography: When police searched the respondent's premises they located a CD inside the drive of one of his computers. It was marked "Steven's Kodak Pics 2" and it contained 235 images of female children. The images appeared to be professionally taken and it is probable that they were downloaded from a child pornography web site. Some 7 of them were classified at level 9 on the COPINE scale, another 20 were at level 7, the others were lower down the scale. 6The respondent was sentenced in accordance with the facts that had been agreed. 7As it happened, on 8 March 2009 the respondent was arrested by police for an unrelated matter. At the time of the arrest the police seized a camera in his possession, and later applied for, and were granted, a warrant to search his premises. During that search two computers were seized and they were subsequently examined, and that examination revealed the factual matter relevant to count 3. During the examination the disk that I have referred to was identified. 8During the course of examining the photographic material the police identified a number of images of the young person, who is the second cousin of the respondent and was aged 12 at the time. I should confirm that there is a non-publication order that is made in relation to the young person's identity. The young person was depicted, firstly, lying on a lounge and appeared to be sleeping. Two of the images were not child pornography but were images of her face. There are, however, 14 photographs showing a view inside the young person's T-shirt when it was pulled up, and there is one image, as I have already related, which depicts the respondent kneeling, with his lips in contact with the young person's side just above the hip. 9In relation to count 2, again the police located the images on the camera. She is depicted wearing pink pyjamas. There are 35 images of her asleep under the sheets with the pyjama top above her breasts, which were exposed and, accordingly, could be photographed. 10The respondent was arrested and at the time of his arrest made a number of admissions in relation to the offences. He participated in an ERISP, and freely admitted the possession of the disk and to knowledge of its content. 11Police enquiries with the young person and her father revealed that the respondent had over the years had significant contact with the young person and had engaged in conventional and innocent behaviour with her during those occasions. 12In relation to count 2, the respondent said that the young person had slept as his premises on that evening after attending Luna Park. She had slept in his bed while he slept on the recliner lounge. He admitted taking the photographs of the young person during the evening. 13The sentencing judge in his careful and detailed remarks on sentence assessed the objective seriousness of each of the offences. His Honour had particular regard to the decision of this Court in Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243 in which matters relevant to the seriousness of this type of offending were discussed. His Honour concluded that there was little to distinguish between counts 1 and 2 even taking into account the matter on the Form 1. His Honour accepted that the assault was a very low level example of an indecent assault. His Honour ultimately concluded that both counts 1 and 2 and the matter on the Form 1 fell towards the lower end of the scale for matters of their kind. His Honour also concluded that count 3 was towards the lower end of the scale, and but for the fact that there were a number of photos depicting very young children and a small number at the very high end of the COPINE scale, his Honour concluded that this count would also have fallen at the bottom of the range of seriousness. 14The respondent was aged 51 at the time he was sentenced. He first attended a session with forensic psychiatrist Rima Nasr on 7 October 2010, less than 2 weeks before entering his pleas of guilty. Ms Nasr observed an odd demeanour, disjointed thought processes, limited insight, narcissistic personality traits, and a grandiose and egocentric self-image. He had been referred to her by the respondent's legal advisors. 15Ms Nasr assessed the respondent as of low average verbal intellectual function and average non-verbal intellectual function, but overall in an average range. Ms Nasr referred the respondent to a neuro-psychologist, Dr Wayne Reid. 16Dr Reid concluded that the respondent "presented as mildly fatuous, with concrete and somewhat grandiose ideation of time ... did not always appear to grasp the wider meaning of questions ... he was a vague and inconsistent historian ... On testing no impairments were seen in (the respondent's) naming, verbal generativity and simple perceptuo-clerical speed. The underlying reason for the above deficits is unclear. ... The early stages of fronto-temporal dementia is a possibility." 17Dr Reid found the respondent's presentation to be unusual and concluded that there was a possibility that he was developing Alzheimers disease. 18Ms Nasr indicated that although the respondent was initially ambivalent to engaging in any treatment, he had subsequently become motivated and had made a commitment to ongoing psychological treatment and assistance. 19The sentencing judge had paid careful regard to these reports. In particular he emphasised that a reading of Ms Nasr's reports indicated that the respondent required extensive therapeutic intervention and that further treatment was required. Ms Nasr had concluded that if the treatment continues there was "at least a reasonable chance of (the respondent) not reoffending in the future." 20Ultimately his Honour concluded that a sentence of imprisonment was appropriate but determined that it should be suspended, having regard to his Honour's conclusion that "it is vital for the (the respondent) and for the community that he continue with his rehabilitation, and keeping in mind the objective seriousness of the offences, and the fact that it now over 2½ years ago that these offences were committed." 21The Crown ultimately filed five grounds of appeal. They are as follows: