Citation: R v Cemitis, Andrew [No 2] [2010] NSWDC 89
Court: District Court of New South Wales
Date: 11 March 2010
Judge(s): Nicholson SC DCJ
Background
The offender, a male adult and volunteer with the State Emergency Service, pleaded guilty to two counts of producing child pornography, one count of possessing child pornography, and one count of using a weapon to avoid lawful apprehension. The offences were committed in Moree between December 2007 and January 2008. The offender had a prior history of sexual offending.
The production offences involved covertly filming young teenage girls as they showered and changed in their own homes. The offender stood on a stool outside bathroom or bedroom windows, removed flyscreens, and filmed the interior using a video camera. At least one victim was personally known to him. Police subsequently searched his residence and found a substantial collection of child pornography, recording and copying equipment, and material he had filmed himself.
The weapon offence arose from a citizen's arrest. A sixteen-year-old male witnessed the offender filming a thirteen-year-old girl in the shower and gave chase. During the ensuing struggle, the offender produced a knife-blade from a Leatherman multi-tool and threatened the young man with it. The offender was eventually restrained and police were called.
Legal Issues
- What was the appropriate sentence, having regard to the objective seriousness of each offence?
- What weight should be given to the offender's guilty pleas and any mitigating subjective factors?
- Whether special circumstances existed to justify altering the statutory ratio between non-parole period and balance of term
- How the sentences across the multiple counts should be structured, including the degree of accumulation
- What totality principle considerations applied to the overall sentencing package
Decision
Nicholson SC DCJ approached sentencing by first assessing the objective criminality of each offence, then weighing the offender's personal circumstances. The court identified the protection of the community, specifically the safety of young girls, as the primary focus of the sentencing exercise. The covert nature of the filming, the removal of flyscreens to gain an unobstructed view, the use of a personal vehicle to access the targets, and the offender's prior sexual offending history all aggravated the objective seriousness of the conduct.
On the weapon charge, the threat made with a knife against a sixteen-year-old attempting a lawful citizen's arrest was treated as a significant aggravating factor in its own right. The court noted that the citizen's arrest was lawful, and the threat was directed at a young person acting in the public interest.
The court found special circumstances existed, justifying a longer balance of term relative to the non-parole period. Three reasons were identified: the offender would need extended time on supervised parole to manage rehabilitation; supervision outside custodial walls was considered appropriate; and a longer balance of term kept the emphasis on personal deterrence while in the community. The court applied some accumulation among the sentences rather than full concurrency.
The court stated directly that it could not order the offender's release and that the Parole Board would need to be satisfied that release would not endanger members of the community, particularly young girls. The court noted the availability of sex offender programs as a means for the offender to demonstrate rehabilitation to the Parole Board.
Orders Made
- Count 1 (use/threaten to use offensive weapon to hinder lawful apprehension): Minimum term of 9 months commencing 23 January 2008, expiring 22 October 2008; balance of 7 months expiring 22 May 2009
- Count 5 (possess child pornography): Minimum term of 2 years commencing 23 July 2008, expiring 22 July 2010; balance of 8 months expiring 22 March 2011
- Counts 2 and 4 (produce child pornography, two counts): Non-parole period of 2 years and 3 months commencing 23 October 2008, expiring 22 January 2011; balance of term of 1 year and 4 months expiring 22 May 2012
- Section 166 matter (filming for indecent purpose): Fixed term of 9 months commencing 23 October 2008, expiring 22 July 2009
- Enter land with intent to commit indictable offence (s.166 matter): Crown's application for leave to dismiss granted; charge dismissed
Key Takeaways
- The District Court confirmed that the protection of the community is a primary sentencing consideration in child pornography matters involving covert filming of minors, with the court drawing on established NSW authority for this principle.
- Special circumstances justifying a departure from the standard non-parole to balance-of-term ratio can include the need for extended post-release supervision, particularly where the offender requires structured rehabilitation and ongoing monitoring in the community.
- A prior history of sexual offending is a material aggravating factor in sentencing for child pornography offences, bearing on both objective seriousness and the assessment of rehabilitation prospects.
- Where multiple offences span different conduct, some accumulation of sentences may be appropriate rather than full concurrency, reflecting the distinct nature and timing of each offence.
- The use of a weapon to threaten a person performing a lawful citizen's arrest is treated seriously, particularly where that person is a minor acting in the public interest.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 91H(2), 33B(1)
- Criminal Procedure Act 1986 (NSW), s 166
- Classification (Publications, Films and Computer Games) Act 1995
Cases:
- R v Cuthbert [1967] 2 NSWR 329
- R v Rushby [1977] NSWLR 597
- R v Hayes [1984] 1 NSWLR 740
- Gladue v The Queen [1999] 1 SCR 688