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District Court 12 November 2010

R v G.P.

[2010] NSWDC 300

Sexual offences
CRIMINAL LAW SENTENCIE AFTER TRIAL CWTH CHARGE COMPETENT COMMERCIAL PHOTOGRAPHER PHOTOGRAPHING OF INDECENT POSES BY BOYS SUSE OF PORNOGRAPH DVD

Citation: R v G.P. [2010] NSWDC 300
Court: District Court of New South Wales
Date: 12 November 2010
Judge(s): Nicholson SC DCJ

Background

The offender was an Australian travel journalist and photographer who made multiple trips to a village in the Chitwan district of Nepal, beginning in late 2005. During visits in 2006 and 2007, he met and cultivated relationships with several teenage Nepalese boys aged between thirteen and fourteen years. The prosecution alleged that in June 2007 he committed acts of indecency upon three of those boys, using photography, pornographic DVDs, touching, and grooming as means of doing so.

The offender was arrested on his return to Australia in July 2007. A search warrant executed at his Sydney residence that same day uncovered thirteen videos, fifty-two printed images, two magazines, and 108 computer-generated images classified as child pornography.

He faced seven counts on indictment relating to the Nepalese offences. A thirteen-day jury trial concluded on 7 July 2010 with five guilty verdicts and two acquittals. He had separately entered a guilty plea in August 2009 to a charge of possessing child pornography found at his home. The sentencing judgment addressed all six remaining matters together.

  • What sentences were appropriate for five Commonwealth offences of committing or attempting to commit acts of indecency on persons under sixteen years of age outside Australia?
  • What sentence was appropriate for the state offence of possessing child pornography found at the offender's Sydney residence?
  • How should the sentences be structured, including questions of accumulation, totality, and the balance between the non-parole period and the head sentence?
  • What weight should be given to the offender's subjective circumstances, including prior good character, charitable activities, and the absence of contrition or insight?
  • How should the court approach the Commonwealth sentencing checklist under s 16A of the Crimes Act 1914 (Cth) alongside the primary principle of community protection?

Decision

The District Court found that the offender's conduct in Nepal was predatory and manipulative. He had used his skills as a photographer to groom the boys, showing them pornographic material and photographing them in indecent poses, before making physical advances. The boys had initially offered gentle resistance. The court characterised him as a paedophile engaged in trophy-taking, and treated the offending as serious in its objective criminality.

On the child pornography possession charge, the court noted the importance of prosecutors preparing thorough agreed facts in sexual indecency matters, including proper cataloguing of the material seized. The items found at the offender's Mosman home included a range of material, some of which was described as poor quality. The plea of guilty attracted a discount in sentencing for that count.

On subjective matters, the court acknowledged the offender's prior good character, his history of charitable work, and his middle-class background. However, it found these factors were substantially offset by his lack of frank disclosure to his psychiatrist and counsellor, and by a marked absence of contrition or insight into his offending.

The court imposed cascading sentences of fifteen months' imprisonment for each of the five indecency offences, partially accumulated, and a fixed term of seven months and fifteen days for the pornography possession count. A recognisance release order was made so that the total time actually served across all offences amounted to fifteen months.

Orders Made

  • Count 1 (possess child pornography): Convicted; sentenced to a fixed term of 7 months and 15 days.
  • Count 2 (act of indecency on person under 16 outside Australia, complainant SL, massage): Convicted; 15 months' imprisonment commencing 12 March 2011, expiring 11 June 2012.
  • Count 3 (attempt to commit act of indecency, complainant MD, attempted touching of genitals): Convicted; 15 months' imprisonment commencing 12 November 2011, expiring 11 February 2013.
  • Counts 4 and 5 (attempt to commit acts of indecency, complainant AG): Convicted on each; 15 months' imprisonment commencing 12 July 2011, expiring 11 October 2012.
  • Count 6 (attempt to commit act of indecency, complainant SL, attempted touching of genitals): Convicted; 15 months' imprisonment commencing 12 March 2011, expiring 11 June 2012.
  • Recognisance release order: Offender to be released on 11 February 2012 on all sentences, on his own recognisance of $10, resulting in a total period of imprisonment of 15 months across all offences.

(Note: An appeal was pending at the time of publication.)

Key Takeaways

  • Australian citizens who commit acts of indecency against children outside Australia may be prosecuted under Commonwealth law, with s 16A of the Crimes Act 1914 (Cth) providing a checklist of factors the sentencing court must consider.
  • Prior good character and charitable conduct carry limited mitigating weight where an offender demonstrates a marked absence of contrition and lacks genuine insight into serious sexual offending against children.
  • The principle of community protection was treated by the District Court as the primary focus of sentencing, drawing on the established NSW authorities of R v Cuthbert, R v Rushby, and R v Hayes.
  • Cascading partial accumulation of sentences can be used to reflect the totality of an offender's criminality across multiple victims and multiple counts while keeping aggregate imprisonment within a proportionate range.
  • The judgment expressly noted the importance of prosecutors preparing careful agreed facts in sexual indecency matters, including proper cataloguing of seized material, to assist the sentencing court in assessing the objective seriousness of possession charges.

Legislation and Cases Referenced

Legislation
- s 16A, Crimes Act 1914 (Cth)
- s 91H(3), Crimes Act 1900 (NSW)

Cases
- R v Pearce (1998) 194 CLR 610
- R v Stroempl (1995) 105 CCC (3d) 187
- The Queen v Oliver [2003] 1 Cr App R 28
- The Queen v Gent (2005) 162 ACrimR 29
- Saddler v The Queen [2009] NSWCCA 83
- Minehan v The Queen [2010] NSWCCA 140
- R v Zappella (unreported, NSW Court of Criminal Appeal, 5 November 1991)
- R v Cuthbert [1967] 2 NSWR 329
- R v Rushby [1977] 1 NSWLR 597
- R v Hayes [1984] 1 NSWLR 740