Citation: Moorhouse v R [2018] NSWDC 291
Court: District Court of New South Wales
Date: 23 February 2018
Judge: Bennett SC DCJ
Background
The appellant pleaded guilty in the Local Court to seven offences committed between February and March 2017. Three charges related to filming a person in a private act without consent for the purposes of sexual arousal. Three further charges related to installing a device to observe or film another person. The seventh charge was producing child abuse material.
The offending involved the installation of hidden cameras in unisex toilets at railway stations in North Sydney and Parramatta, and at a Westfield shopping centre in Parramatta. The cameras were positioned to capture people in private acts requiring the removal of clothing. The primary target was adult females, though male persons and children were also captured. Multiple images were found on the devices when they were located and investigated.
The Local Court magistrate imposed an aggregate sentence of 20 months' imprisonment with a non-parole period of six months, commencing 21 November 2017. The appellant appealed against that sentence to the District Court.
Legal Issues
- Whether the Local Court's aggregate sentence of 20 months was appropriate, or whether a heavier sentence was required under s 5 of the Crimes (Sentencing Procedure) Act 1999
- Whether an intensive correction order (ICO) was an appropriate mechanism for serving an increased aggregate sentence of two years
- Whether the appellant was suitable to serve his sentence in the community by way of an ICO, as assessed under the Crimes (Sentencing Procedure) Regulation 2010
Decision
Bennett SC DCJ found that the Local Court's sentence was inadequate. In the District Court's view, once it was accepted that s 5 of the Crimes (Sentencing Procedure) Act 1999 required the imposition of a custodial sentence, the aggregate term of 20 months fell short of what the offending warranted. The court assessed an appropriate aggregate sentence as two years' imprisonment.
The court accepted the appellant's contrition and remorse, and acknowledged strong prospects for rehabilitation with appropriate supervision. It also took into account his absence of prior criminal history, his employment record, his family situation, and the personal stressors he had experienced, including a difficult upbringing and marriage breakdown, which had contributed to a severe depressive episode.
General deterrence was identified as a significant sentencing consideration. The court observed that members of the community should be able to use private facilities at railway stations and commercial premises without fear of covert surveillance. The conduct was described as serious and warranting denunciation.
Rather than imposing a short custodial term, the court determined that a two-year ICO would better serve rehabilitation while constituting a significant punishment. The court noted that an ICO is in some respects more onerous than a short period of imprisonment followed by parole. After adjourning for an assessment report, the court received and accepted a Community Corrections report confirming the appellant's suitability for an ICO.
Orders Made
- Convictions on all charges confirmed
- Aggregate sentence of two years' imprisonment imposed, commencing 23 February 2018
- Sentence ordered to be served by way of an intensive correction order (ICO) pursuant to s 7(2) of the Crimes (Sentencing Procedure) Act 1999
- Standard ICO conditions imposed, including: good behaviour; reporting to Community Corrections (Gosford) within seven days; residing only at approved premises; prohibition on leaving New South Wales without the Commissioner's permission, and Australia without Parole Authority approval; submission to home visits, searches, surveillance and electronic monitoring; prohibition on prohibited drugs, alcohol testing, and possession of firearms or offensive weapons; minimum 32 hours of community service work per month; engagement in rehabilitation activities across four identified areas: family and marital matters, emotional and personal circumstances, attitude and orientation, and sexual offending
- Prohibition on entering or loitering near Copacabana Public School
- Prohibition on being in the company of children, including the appellant's own children, unless a responsible adult is present, for so long as the supervisor considers the condition necessary
- Breach of the ICO to be dealt with by parole authorities, with the prospect of conversion to a custodial sentence
Key Takeaways
- The District Court found that the Local Court's aggregate sentence of 20 months was below what the offending required, and increased the aggregate term to two years on appeal.
- General deterrence carried significant weight in the sentencing exercise for covert filming offences committed in public toilet facilities, reflecting the court's view that such conduct is a serious invasion of community privacy.
- An ICO was considered, in the court's assessment, to be in some respects more onerous than a short custodial term followed by supervised parole, given the extensive conditions and obligations it imposes over its full duration.
- Mitigating factors, including a prior clean record, genuine remorse, strong rehabilitation prospects, personal hardship, and engagement with therapeutic programs, were accepted but did not prevent the imposition of a more substantial sentence than the Local Court had imposed.
- Under the applicable statutory framework, breach of an ICO for State offences is handled by parole authorities rather than by a return to the sentencing court, and may result in conversion of the sentence to full-time custody.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 7(2), 69, 81
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (Administration of Sentences) Regulation 2014 (NSW)
- Crimes (Sentencing Procedure) Regulation 2010 (NSW)
Cases: No cases were cited in the judgment.