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Court of Criminal Appeal 9 June 2005

R v Hunt

[2005] NSWCCA 210

Sexual offencesDrugs

Citation: R v Hunt [2005] NSWCCA 210
Court: NSW Court of Criminal Appeal
Date: 9 June 2005
Judge(s): Studdert J (primary judgment); Howie J and Latham J (agreeing)

Background

The appellant, Michael Shane Hunt, pleaded guilty in the District Court to five offences arising from conduct during the Christmas and New Year period of 2002 to 2003. The offences involved the supply of cannabis to three young boys, two aggravated indecent assaults on a nine-year-old victim, and two counts of publishing child pornography. A further offence of possessing child pornography was taken into account on a Form 1 (a procedural mechanism allowing related offences to be considered at sentencing without additional charges being formally sentenced).

The offending occurred at a holiday property near Wiseman's Ferry, where the appellant had befriended the families of the children. He supplied cannabis and drug paraphernalia to the boys, exposed them to graphic child sexual abuse material on his computer, gave one child a CD containing such material, and on two earlier occasions indecently assaulted the nine-year-old victim. A subsequent police search uncovered an extensive collection of adult and child pornographic material at the appellant's home, including downloaded images of the children involved.

The appellant was 39 years old at sentencing and held a substantial criminal record, including a murder conviction from 1989 and a 2000 conviction for child abuse offences. The indecent assault offences were committed while he was still on a recognizance bond arising from those earlier offences.

  • Whether the sentencing judge erred in the structure of the aggregate sentence, particularly the effective non-parole period
  • Whether the non-parole period, amounting to approximately 87.5% of the total sentence, was excessive or reflected error
  • Whether a longer period of post-release supervision was required in light of evidence about the appellant's rehabilitation needs and risk of reoffending

Decision

The sentencing judge imposed a series of partly concurrent, partly cumulative sentences totalling approximately eight years of imprisonment, with a non-parole period set only in relation to the final and longest sentence. That arrangement produced a total non-parole period effectively leaving only twelve months of parole eligibility at the end of the overall term.

The Court of Criminal Appeal acknowledged that the effective non-parole period amounted to 87.5% of the total sentence, which is well above the standard two-thirds ratio. The sentencing judge had found special circumstances justifying departure from the default ratio, accepting that the appellant required a supervised period upon release. However, the judge concluded that one year of post-release supervision was sufficient.

Studdert J noted that the CUBIT programme (a custodial intensive treatment programme for sex offenders at Long Bay Correctional Complex) was designed to be completed before release, and no evidence before the sentencing judge demonstrated that a longer parole period would serve any additional purpose. The psychological evidence also indicated the appellant presented a high risk of reoffending.

The Court was not persuaded that the sentencing judge had erred in structuring the sentence as he did, and declined to interfere with the sentences imposed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge may validly confine the parole period to twelve months even where the resulting non-parole period represents approximately 87.5% of the total sentence, provided the judge has considered the relevant evidence and found special circumstances.
  • A finding of special circumstances does not automatically require an extended parole period; the length of supervision must be justified by the evidence before the sentencing court.
  • Where custodial rehabilitation programmes are expected to be completed before release, that fact is relevant to assessing whether a longer post-release supervision period is warranted.
  • The sentencing judge's characterisation of the offending as revealing a "predatory paedophile," while individual offences fell towards the middle or lower end of their respective scales, was not disturbed on appeal, reflecting that cumulative offending can be assessed in combination.
  • Under the statutory framework applicable to these offences, the maximum penalties ranged from two years (aggravated indecent assault under s 61M(2) of the Crimes Act) to ten years (drug supply under s 32 of the Drug Misuse and Trafficking Act), and five years for publishing child pornography under s 578C(2A) of the Crimes Act.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M, 578C
- Drug Misuse and Trafficking Act 1985 (NSW), s 32

Cases: No cases were cited in the portions of the judgment provided.