Citation: R v HL [2019] NSWDC 41
Court: District Court of New South Wales
Date: 22 February 2019
Judge: Colefax SC DCJ
Background
The offender, a man aged 41 at the time of the offending, was sentenced for serious offences involving a young child and two teenage girls. He had previously been in a long-term de facto relationship and had three children from that relationship, one of whom, a 14-year-old daughter, became indirectly involved in the discovery of the offending.
The offending came to light in late December 2017 when the offender's daughter accessed his mobile phone during a holiday in Queensland. She found videos of herself and a friend being secretly filmed while undressing, as well as photographic evidence of the offender sexually assaulting a 3-year-old child he had babysat. The daughter immediately contacted her mother and the matter was reported to police.
Police executed a search warrant on the offender's vehicle and later his home, seizing a large number of electronic devices including laptops, hard drives, cameras, and mobile phones. Examination of those devices revealed the full extent of the offending, including images and videos constituting child abuse material across multiple categories.
Legal Issues
- The appropriate head sentence and non-parole period for six principal offences, including sexual assault of a child under 10 years (contrary to s 66A(1) of the Crimes Act 1900 (NSW)) and producing and possessing child abuse material (contrary to s 91H(2))
- Whether an aggregate sentence was appropriate across all principal offences
- Whether a finding of special circumstances existed to vary the statutory ratio between the head sentence and the non-parole period
- The application of a 25 per cent discount for the offender's guilty plea
- The weight to be given to subjective factors including the offender's remorse, prospects for rehabilitation, and psychological evidence
Decision
The District Court convicted the offender on all six principal offences: one count of sexually assaulting a child under 10 years of age, two counts of producing child abuse material, and three counts of possessing child abuse material. The court also took into account four additional matters on two Form 1 documents (a procedural mechanism for having related offences considered at sentencing without imposing separate penalties), all involving producing or possessing child abuse material.
Colefax SC DCJ found the primary offence, the digital penetration of a 3-year-old child on 1 July 2017, to be the most serious matter. The production offences concerned hidden camera recordings of a 13-year-old girl undressing at the offender's home on multiple occasions between October 2016 and October 2017. The possession offences related to child abuse material, including downloaded internet material, found across several electronic storage devices.
A 25 per cent discount was applied to each indicative sentence in recognition of the guilty pleas. The court declined to make a finding of special circumstances to extend the parole period beyond the statutory ratio. The court noted that the offender had adjusted satisfactorily to custody and was not persuaded that a longer parole period would improve his rehabilitation prospects beyond what the standard parole period would provide.
The court also observed that the Interpol Baseline Categorisation system, used by police to classify the seized child abuse material, was less useful than the previously used Child Exploitation Tracking System in conveying the true nature of such material without requiring the court to view representative samples.
Orders Made
- The offender was convicted of all six principal offences.
- An aggregate term of imprisonment of 8 years was imposed.
- A non-parole period of 6 years was fixed, commencing 10 January 2018 and expiring 9 January 2024.
- The balance of term was fixed at 2 years, commencing 10 January 2024 and expiring 9 January 2026.
- The aggregate sentence was backdated by 408 days to account for pre-sentence custody.
- A non-publication order was confirmed covering the names of the offender, his family, the victims, and any information capable of identifying them.
Key Takeaways
- The District Court imposed an aggregate sentence of 8 years imprisonment with a 6-year non-parole period for offences involving the sexual assault of a 3-year-old child, the production of hidden-camera recordings of a teenage girl, and the possession of downloaded child abuse material.
- A 25 per cent guilty plea discount was applied to each indicative sentence before the aggregate was constructed, reflecting the utilitarian value of early pleas across multiple serious charges.
- Special circumstances were not established merely because the offender was a first-time prisoner. The court found no basis to vary the standard head sentence to non-parole period ratio where the offender had adjusted to custody and where the standard parole period was adequate for community reintegration.
- Under s 66A(1) of the Crimes Act 1900 (NSW), sexual assault of a child under 10 years carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years, reflecting the legislature's recognition of this offence as among the most serious in the criminal calendar.
- Colefax SC DCJ expressed reservations about the utility of the Interpol Baseline Categorisation system as a tool for communicating the gravity of child abuse material to sentencing courts, preferring the previously used Child Exploitation Tracking System for that purpose.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 66A(1) (sexual assault of a child under 10 years; maximum: life imprisonment; standard non-parole period: 15 years)
- Crimes Act 1900 (NSW), s 91H(2) (producing and possessing child abuse material; maximum: 10 years imprisonment)
Cases cited: None recorded in the judgment.