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Court of Criminal Appeal 11 May 2018

TM v R

[2018] NSWCCA 88

Sexual offences
CRIMINAL LAW SENTENCE APPEAL 10 COUNTS WITH 14 COUNTS ON A FORM 1 OFFENCES COMMITTED OVER A 7 YEAR PERIOD 8 VICTIMS SIGNIFICANT BREACH OF TRUST

Citation: TM v R [2018] NSWCCA 88
Court: Court of Criminal Appeal, New South Wales
Date: 11 May 2018
Judges: Hoeben CJ at CL; Walton J; R A Hulme J

Background

The appellant pleaded guilty in the Local Court to 10 counts of offences involving the covert filming of young girls without their consent. The offending spanned seven years and involved eight victims, generally aged between 14 and 16, who were the daughters of his successive de facto partners or those daughters' friends. A further 14 offences were placed on a Form 1 (that is, taken into account at sentencing without attracting separate penalties).

The offences included filming victims showering, changing, and toileting at private residences. The appellant had adapted bathroom vents and installed concealed recording devices to capture the footage. The victims had no knowledge they were being filmed.

On 15 June 2017, Judge Frearson SC sentenced the appellant in the District Court to an aggregate term of six years' imprisonment with a non-parole period of three and a half years. The appellant sought leave to appeal, arguing the sentence was manifestly excessive.

  • Whether the aggregate sentence of six years with a three-and-a-half-year non-parole period was manifestly excessive.
  • Whether the sentencing judge erred in his assessment of the objective seriousness of the offences.
  • Whether the judge properly treated the absence of physical contact and the victims' lack of awareness of the offending as mitigating factors.
  • Whether the judge correctly applied the principles of totality when accumulating sentences across 10 counts involving eight victims.

Decision

The Court of Criminal Appeal unanimously dismissed the appeal. Hoeben CJ at CL found that the sentencing judge had properly assessed the objective seriousness of each offence, given appropriate weight to the significant breach of trust involved, and applied the relevant sentencing principles in arriving at both the indicative and aggregate sentences.

On the question of mitigating factors, the sentencing judge had acknowledged that the absence of physical contact and the victims' unawareness of the filming were relevant, but correctly concluded that these matters did not reduce the seriousness of the offending to any significant degree. The Court confirmed that the fact offending could have been more serious is not a matter of mitigation.

The Court was satisfied that the indicative sentences for each individual count properly reflected the objective seriousness of those offences, the applicable maximum penalties, and the appellant's subjective circumstances. Because the offences were discrete, involved eight different victims, and the criminality of one could not be said to comprehend another, a meaningful degree of accumulation was clearly warranted.

The Court found the aggregate sentence was not so unreasonable or plainly unjust as to warrant intervention. The appellant would be eligible for parole at age 53, and the Court did not regard the sentence as "crushing" in a way that would destroy any expectation of a useful life.

Orders Made

  • Extension of time to bring the application for leave to appeal against sentence granted.
  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the fact an offender's conduct could have been more serious does not constitute a mitigating factor when determining sentence.
  • Where multiple discrete offences involve different victims whose criminality cannot be treated as overlapping, a significant degree of accumulation in an aggregate sentence is appropriate, consistent with Pearce v The Queen (1998) 194 CLR 610.
  • The absence of physical contact with victims and the victims' unawareness of the offending may be acknowledged by a sentencing court, but do not substantially reduce the objective seriousness of covert filming offences, particularly where there is a significant breach of trust.
  • A significant breach of trust, such as covertly filming the children of a de facto partner in their own home, is a weighty aggravating factor under s 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • An aggregate sentence is not "crushing" merely because it will result in the offender serving a substantial term; the relevant question is whether it destroys any realistic expectation of a useful life after release.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 91G(1)(a), 91G(2)(a), 91K(3), 91L(3), 61M(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(m), 33
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- AB v The Queen [1999] HCA 46; 198 CLR 111
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58
- Elias v The Queen; Issa v The Queen [2013] HCA 31; 248 CLR 483
- Azzopardi v The Queen; Baltatzis v The Queen; Gabriel v The Queen [2011] VSCA 372; 219 A Crim R 369
- Hughes v R [2018] NSWCCA 2
- Faehringer v R [2017] NSWCCA 248
- Obeid v R [2017] NSWCCA 221
- PG v R [2017] NSWCCA 179
- R v CTG [2017] NSWCCA 163
- Elsaj v R [2017] NSWCCA 124
- Mills v R [2017] NSWCCA 87
- Baines v R [2016] NSWCCA 132
- Hoskins v R [2015] NSWCCA 245
- R v Cahill [2015] NSWCCA 53
- Greenwood v Regina [2014] NSWCCA 64
- Bamblett v R [2013] NSWCCA 161
- Mammone v R [2013] NSWCCA 95