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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: NSW 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 sentencing. The offences concerned a complainant who was the daughter of the applicant's former partner. She was between approximately seven and nine years of age when the offending occurred, which spanned from late 2004 to late 2007.

The offending included persistent sexual abuse of the child on at least 12 occasions of sexual intercourse and 36 acts of indecency, the production and possession of more than 2,000 indecent images of the complainant, and the transmission of those images to recipients in Japan, the United States and Ireland. The applicant also possessed over 729,000 child pornographic images and approximately 2,700 pornographic video files involving children generally.

Garling DCJ 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 sole ground that the aggregate head sentence and aggregate non-parole period were manifestly excessive.

  • Whether the total sentence of 24 years with an 18-year non-parole period was manifestly excessive when assessed under the totality principle.
  • Whether the sentencing judge correctly structured the accumulation of individual sentences across the six counts.
  • Whether the conditions of the applicant's ongoing custody were relevant to resentencing by the Court of Criminal Appeal.

Decision

Howie J (with McClellan CJ at CL and Rothman J agreeing) accepted that the individual counts were serious, and that the sentencing judge was correct to find that counts 3, 4, 5 and 6 fell into the worst category of offences of their kind. The judge's findings of significant planning, the duration of abuse, the extreme vulnerability of the child, and the wide dissemination of images were all upheld on appeal.

However, Howie J concluded that the original overall structure was manifestly excessive. The sentencing judge had made the sentences for counts 5 and 6 cumulative on all earlier sentences, producing a starting figure of approximately 32 years before any discount for the guilty plea. That starting point was, in the Court's view, too high, and the discount for the guilty plea was not transparently applied to individual sentences such as the 16-year term for count 4 or the 8-year term for count 5.

The Court of Criminal Appeal held that an appropriate starting sentence before discount was 24 years, producing an overall sentence of 18 years. The non-parole period was fixed at 14 years. Although this represented a higher proportion of the total term than the ordinary statutory ratio, the Court found it was the minimum appropriate period in custody. Special circumstances were found for count 5 to achieve the correct overall non-parole period, with the acknowledgment that the sentence for that count, considered in isolation, would have been inadequate.

The Court also took into account the applicant's deteriorating custodial conditions since sentence. He was held in a strict protection regime involving 22 hours per day in his cell, with limited access to work or education. That increased onerousness of imprisonment was treated as a relevant factor in the resentencing exercise.

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.
  • Count 6 resentenced: non-parole period of 4 years, balance of term 2 years, commencing 5 December 2015 and expiring 4 December 2019.
  • Count 5 resentenced: non-parole period of 2 years, balance of term 4 years, commencing 5 December 2019 and expiring 4 December 2021 (the date of eligibility for release to parole).

Key Takeaways

  • The totality principle requires a sentencing court to assess whether the cumulative effect of individual sentences, taken together, is proportionate to the overall criminality. An excessive aggregate can warrant appellate intervention even where individual sentences are within range.
  • Structuring the last three of six serious counts as fully cumulative produced a pre-discount starting point the Court of Criminal Appeal found to be manifestly excessive, illustrating that accumulation must be applied with care where multiple offences arise from a related course of conduct.
  • A guilty plea discount must be capable of identification in the sentences actually imposed. Where the quantum of individual sentences does not transparently reflect the discount, that may indicate an error in the sentencing exercise.
  • Deteriorating conditions of custody since the original sentence, such as a more onerous protection regime imposed after sentencing, are a matter the Court may take into account when conducting a resentencing.
  • In dismissing the appeal in part and confirming the sentences for four of the six counts, the Court affirmed that the offending in this case was of the utmost gravity, with the persistent sexual abuse of a child under ten years of age, compounded by production and overseas transmission of images, placing several counts squarely in the worst category.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), ss 474.19(1)(a)(i) and (iii) (transmitting and accessing child pornography)
- Crimes Act 1900 (NSW), ss 66EA(1) (persistent abuse of a child), 91G(1)(a) (use of child for pornographic purposes), 91H(3) (possession of child pornography)

Cases:
- R v MJR (2002) 54 NSWLR 268
- Langbein v R [2008] NSWCCA 38
- R v Booth [2009] NSWCCA 89