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District Court 8 April 2009

R v Hitchen

[2009] NSWDC 431

Sexual offences
CRIMINAL SENTENCE PLEA MID RANGE CATEGORY OF OFFENCE POSSESS CHILD PORNOGRAPHY

Citation: R v Hitchen [2009] NSWDC 431
Court: District Court of New South Wales
Date: 8 April 2009
Judge(s): Garling DCJ

Background

The offender pleaded guilty to six charges arising from a prolonged course of conduct involving a child victim (referred to as K) and the production, possession, and transmission of child pornography material. The offences spanned several years, with the earliest conduct commencing in late 2004 and the latest occurring in October 2007. Investigations began after the Australian Federal Police received information from the FBI, leading to a search warrant being executed at the offender's premises in December 2007.

The offender had been in a relationship with the victim's mother and had developed a close relationship with the child from a young age. Over the relevant period, he subjected her to repeated acts of sexual intercourse and indecency, used her to produce pornographic images and videos, and transmitted those materials to overseas contacts via carriage services. He also possessed an enormous volume of child pornography, exceeding 729,000 images and 2,700 video files.

The offender was 44 years old at the time of sentencing, had no prior criminal convictions, and had entered early guilty pleas. Psychological evidence indicated a low risk of re-offending and no mental illness, though the psychologists noted the offender minimised the impact of his conduct on the victim.

  • What were the appropriate individual sentences for each of the six charges, having regard to the objective seriousness of each offence and relevant mitigating factors?
  • How should the sentences be accumulated or made concurrent to reflect the totality of the offender's criminality without producing an unjust overall result?
  • What discount applied to reflect the utilitarian value of the early guilty pleas?
  • What non-parole period was appropriate across the accumulated sentences?

Decision

Garling DCJ characterised the offending as extremely serious across all charges. The persistent sexual abuse of the child victim over several years (Charge 4), carrying a maximum of 25 years, attracted the most significant penalty: a non-parole period of 12 years and a head sentence of 16 years. The court placed this offending in the worst category, given its duration, the young age of the victim (as young as 7 years), and the multiple forms of sexual abuse involved.

The charges relating to using a carriage service to access and transmit child pornography (Charges 1, 2, and 6) were assessed as ranging from mid-range to the worst category of their kind. The use of the child for pornographic purposes (Charge 5), together with four further charges on a Form 1 (a procedure for taking additional related matters into account without recording separate convictions), was also treated as falling within the worst category of that offence.

The court applied a 25% discount to the sentences to reflect the utilitarian value of the offender's early guilty pleas. Relevant mitigating factors included the absence of prior convictions and some evidence of remorse, though the court noted the psychologists' finding that the offender showed limited insight and minimised his conduct's impact on the victim.

Applying the principle of totality as articulated in Cahyadi, the court accumulated the sentences so that the overall penalty reflected the full criminality of the offending. Charges 1, 2, and 3 were made concurrent with each other, and the sentences for Charges 4, 5, and 6 were accumulated upon each other and upon the earlier sentences, producing the total result. The non-parole period for Charge 5 was reduced to ensure the overall ratio between head sentence and non-parole period remained appropriate.

Orders Made

  • Charge 1 (use carriage service to transmit child pornography): 3-year non-parole period, 4-year head sentence, from 5 December 2007
  • Charge 2 (use carriage service to access child pornography): 3-year non-parole period, 4-year head sentence, from 5 December 2007
  • Charge 3 (possess child pornography): 2-year non-parole period, 3-year head sentence, from 5 December 2007
  • Charge 4 (persistent sexual abuse of a child): 12-year non-parole period, 16-year head sentence, from 5 December 2007
  • Charge 6 (use carriage service to transmit child pornography, plus two Form 1 matters): 4-year non-parole period, 6-year head sentence, from 5 December 2019
  • Charge 5 (use child under 14 for pornographic purposes, plus four Form 1 matters): 2-year non-parole period, 8-year head sentence, from 5 December 2023
  • Total sentence: 24 years imprisonment with a non-parole period of 18 years
  • Eligible for parole consideration from 4 December 2025

Note: This decision was set aside on appeal.

Key Takeaways

  • The District Court applied the totality principle from Cahyadi to accumulate, rather than make concurrent, sentences for distinct courses of criminal conduct, ensuring the overall term reflected the full extent of the offender's criminality.
  • Persistent sexual abuse of a very young child over several years, involving multiple forms of intercourse and indecency on numerous discrete occasions, placed Charge 4 in the worst category of offending under s 66EA of the Crimes Act 1900.
  • An early guilty plea attracted a 25% discount on sentence, reflecting its utilitarian value even where contrition was assessed as limited by psychological evidence.
  • Where multiple serious sentences are accumulated, adjustments to individual non-parole periods may be made to preserve a proportionate overall ratio between the total head sentence and the total non-parole period.
  • This decision was set aside on appeal, meaning its reasoning and orders should be read with that procedural history in mind and its precedential weight treated accordingly.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 66EA (persistent sexual abuse of a child), 91G(1)(a) (use child under 14 for pornographic purposes), 91H(3) (possess child pornography)
- Criminal Code Act 1995 (Cth), ss 474.19(1)(a)(i) and 474.19(1)(a)(iii) (use carriage service to access or transmit child pornography material)
- Crimes Act 1914 (Cth)

Cases
- R v Fitzgerald (2004) NSWCCA 5
- RJA [2008] NSWCCA 137
- MLP [2006] NSWCCA 271
- Cahyadi [2007] NSWCCA 1