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Court of Criminal Appeal 8 August 2008

FAM v R

[2008] NSWCCA 167

Sexual offences
CRIMINAL LAW APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE ONE COUNT OF AGGRAVATED INDECENT ASAULT

Citation: FAM v R [2008] NSWCCA 167
Court: NSW Court of Criminal Appeal
Date: 8 August 2008
Judge(s): McClellan CJ at CL, Hidden J, Fullerton J

Background

The applicant pleaded guilty in the District Court to one count of aggravated indecent assault under s 61M(1) of the Crimes Act 1900, arising from conduct toward his 12-year-old son. He also invited the sentencing judge to take into account, on a Form 1 (a procedure allowing additional offences to influence sentence without separate conviction), an offence of possessing child pornography under s 91H(3) of the same Act. Police had seized the applicant's computer and found 2,346 images and 67 short films of child pornography across three hard drives.

The sentencing judge, Williams DCJ, imposed a total term of 2 years and 6 months imprisonment, with an 18-month non-parole period commencing 1 June 2007. However, the judge miscalculated the resulting release and expiry dates, specifying 31 December 2008 and 31 December 2009 respectively, rather than the mathematically correct dates of 30 November 2008 and 30 November 2009.

The applicant, who appeared without legal representation in the appeal, sought leave to appeal against the sentence on the ground that it was manifestly excessive. The Crown conceded that the Court should intervene to correct the date calculation error, but otherwise defended the sentence.

  • Whether the sentence of 2 years and 6 months (reduced from 3 years for the guilty plea) was manifestly excessive for the aggravated indecent assault, having regard to the standard non-parole period of 5 years and the judge's finding that the offence was not within the mid-range of objective seriousness.
  • Whether the sentencing judge erred in rejecting the applicant's account of his conduct, as provided to the forensic psychiatrist, when the applicant did not give sworn evidence at the sentencing hearing.
  • Whether the sentencing judge's treatment of the Form 1 child pornography offence was consistent with the guideline judgment in Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999.
  • Whether the Court should correct the mathematical error in the sentence dates.

Decision

Fullerton J, with whom McClellan CJ at CL and Hidden J agreed, found no error in the sentencing judge's approach or in the sentence imposed. The judge had correctly identified the relevant sentencing framework, including the 7-year maximum and the 5-year standard non-parole period, and had treated the standard non-parole period as a reflection of community concern about this type of offending. The judge's conclusion that no penalty other than full-time imprisonment was appropriate was upheld.

On the question of the applicant's explanation for the assault, namely that he was examining his son's foreskin for medical reasons and had obtained child pornography for comparative purposes, the Court found no error in the sentencing judge's refusal to accept that account. The applicant had not given evidence, and the Probation and Parole officer had independently characterised the explanation as highly implausible. The forensic psychiatrist, Dr Westmore, had noted he was unable to dispute the account but had also acknowledged it was unusual.

The Court also rejected the applicant's submission that the sentencing judge had misapplied the Attorney General's Application guideline judgment when dealing with the Form 1 offence. The passage the applicant relied upon was one of the proposed guidelines that the Court of Criminal Appeal had expressly declined to adopt in that case. The sentencing judge's approach to the pornography offence, treating the very large volume of material as warranting a significant sentencing consequence and as not constituting victimless conduct, was found to be consistent with the guideline.

The only error identified was the mathematical miscalculation of the parole release date and the total term expiry date. Both parties agreed, and the Court accepted, that the sentence should be quashed and re-imposed with the corrected dates, while leaving all other aspects of the sentence undisturbed.

Orders Made

  • Leave to appeal granted.
  • The sentence imposed in the District Court was quashed.
  • In lieu thereof, a non-parole period of 18 months commencing 1 June 2007 was imposed, with release to parole on 30 November 2008 and the total term expiring on 30 November 2009.
  • All other orders made by the sentencing judge were confirmed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentencing judge is entitled to reject an account provided by an offender to a forensic psychiatrist where the offender did not give sworn evidence and the account was regarded as implausible by both the judge and a Probation and Parole officer.
  • A standard non-parole period functions as a legislative benchmark reflecting community concern about a category of offending, and sentencing judges may properly have regard to it even where the particular offence is assessed as below the mid-range of objective seriousness.
  • The passage from Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 that purported to require a sentencing court to specify the precise increase in penalty attributable to a Form 1 offence was one of the proposed guidelines that the Court of Criminal Appeal expressly declined to adopt in that decision.
  • Possession of child pornography is not a victimless crime: the sentencing court's observation that collectors of such material encourage those who actively corrupt and exploit children was cited with approval.
  • Where a mathematical error in sentence dates produces an incorrect result, the Court of Criminal Appeal will intervene to correct the dates even if the substantive sentence is otherwise unimpeachable, quashing and re-imposing the sentence with corrected figures.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61M(1), 91H(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(1), 37

Cases:
- Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 [2002] NSWCCA 518; 56 NSWLR 146