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Court of Criminal Appeal 3 May 2010

Hitchen v R

[2010] NSWCCA 77

Sexual offences
CRIMINAL LAW SENTENCE CHILD AGED UNDER 10 YEARS

Citation: Hitchen v R [2010] NSWCCA 77
Court: Court of Criminal Appeal
Date: 3 May 2010
Judge(s): McClellan CJ at CL, Howie J, Rothman J

Background

The applicant pleaded guilty in the Local Court to six offences involving child sexual assault and child pornography and was committed to the District Court for sentence. The offences were committed against the daughter of his former partner, a child aged between 7 and 9 years, over a period of approximately three years.

The offences included persistent sexual abuse of the child (involving 12 occasions of sexual intercourse and 36 acts of indecency), using the child for pornographic purposes, possessing and transmitting child pornography, and accessing child pornography. The applicant had photographed and filmed the abuse, amassed over 729,000 child pornographic images on his computer, and transmitted images of the child to persons overseas.

Garling DCJ in the District Court sentenced the applicant to a total term of 24 years imprisonment with an overall non-parole period of 18 years. The applicant sought leave to appeal on the ground that the aggregate head sentence and aggregate non-parole period were manifestly excessive.

Legal Issues

  • Whether the aggregate head sentence of 24 years and aggregate non-parole period of 18 years were manifestly excessive in totality
  • Whether the sentencing judge correctly applied the totality principle when structuring the cumulative sentences for counts 4, 5, and 6

Decision

Ground 1: Manifest Excess and the Totality Principle

The Court accepted that the offending was of the utmost gravity, and accepted the sentencing judge's characterisation of several offences as falling within the worst category of their kind. However, Howie J (with whom McClellan CJ at CL and Rothman J agreed) held that a total starting sentence of 32 years before discount was manifestly excessive.

The Court found the sentencing judge had given more than lip service to the totality principle by making the first three counts concurrent with each other and with count 4. The error lay in then making the sentences for counts 4, 5, and 6 fully cumulative on one another. This structure produced an overall sentence that did not properly reflect a single chapter of offending committed over three years by a person with no prior criminal history.

The Court noted that the applicant's offending, while serious and deserving of strong denunciation, represented an escalating obsession during a defined period following 41 crime-free years. The totality principle operates to limit punishment to an overall assessment of the offender's criminality in its entirety, particularly where treating each offence in isolation would produce a crushing result.

Resentencing

The Court reduced the sentence on count 5 and varied count 6 to achieve an appropriate overall result. The revised sentence produced a total term of 18 years with an overall non-parole period of 14 years. The Court found special circumstances to justify a higher-than-statutory ratio of non-parole period to total term in order to achieve the correct overall minimum custodial period. The Court also took into account that the applicant's custodial conditions had become more onerous since sentence, including confinement to his cell for 22 hours per day and restricted access to work and education.

Orders Made

  • Leave to appeal granted; appeal allowed in part
  • Sentences for counts 1, 2, 3, and 4 confirmed
  • Sentences for counts 5 and 6 quashed
  • In substitution:
  • Count 6: Non-parole period of 4 years, balance of term of 2 years, commencing 5 December 2015, expiring 4 December 2019
  • Count 5: Non-parole period of 2 years, balance of term of 4 years, commencing 5 December 2019, expiring 4 December 2021 (the date of eligibility for release to parole)

Key Takeaways

  • The totality principle requires a sentencing court to assess an offender's overall criminality as a whole, and does not permit the full accumulation of otherwise appropriate individual sentences where the result would be unduly crushing.
  • A finding that multiple offences fall within the worst category of their kind does not automatically justify making all sentences fully cumulative; the structure of accumulation remains subject to totality review.
  • Where an offender's custodial conditions have become significantly more onerous between the date of sentence and a resentencing hearing, that change is a relevant factor the appellate court may take into account.
  • Special circumstances may be found on resentencing to depart from the statutory ratio between non-parole period and total term where doing so is necessary to achieve the correct overall minimum period in custody.
  • The Court of Criminal Appeal confirmed the community's evolving recognition of the serious long-term harm caused by child sexual offences, as reflected in legislative maximum penalties and standard non-parole periods, while still insisting on proportionate and principled sentence construction.

Legislation and Cases Referenced

Legislation
- Not stated

Cases
- Not stated