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District Court 4 June 2021

R v Hansen

[2021] NSWDC 457

Sexual offences

Citation: R v Hansen [2021] NSWDC 457
Court: District Court of New South Wales
Date: 4 June 2021
Judge(s): Bennett SC DCJ

Background

The offender, a 64-year-old former Catholic priest and lawyer with extensive academic qualifications, pleaded guilty to 31 offences involving the production, possession, transmission and importation of child abuse material, as well as contact sexual offences against children overseas. The offending spanned approximately four and a half years, between April 2014 and October 2018, and took place primarily in the Philippines and Vietnam, as well as involving conduct upon the offender's return to Australia.

The offender came to the attention of authorities on 6 October 2018 when Australian Border Force officers found child abuse material on an electronic device he was carrying upon arrival at Sydney International Airport. Subsequent investigation revealed that he had sexually abused nine children aged between ten and 14 years in the Philippines, produced hundreds of images and videos of child abuse material, transmitted material to another person online, and possessed approximately 100,000 files of child abuse material across four devices, organised using a unique filing system.

A local Filipino national named Donozo acted as a procurer, approaching boys under the pretence of modelling opportunities and bringing them to the offender's rented premises. The offender paid both the procurer and the child victims small sums of money for their participation.

Legal Issues

  • What aggregate sentences were appropriate for the NSW possession offences and the Commonwealth production, transmission, importation and contact offences respectively, having regard to the objective seriousness of each offence and the offender's subjective circumstances?
  • What discount was appropriate for the offender's early guilty pleas?
  • What weight should be given to the psychiatric evidence of Dr Nielssen, including his assessment of risk of reoffending and the offender's expressed remorse?
  • Whether the offender demonstrated genuine contrition and had good prospects of rehabilitation, for the purposes of sentencing under both the Crimes (Sentencing Procedure) Act 1999 and the Crimes Act 1914 (Cth)?
  • How should separate aggregate sentences for NSW and Commonwealth offences be structured, including the appropriate commencement dates and degree of concurrence and accumulation?

Decision

Objective seriousness of the offences: The court assessed each of the 31 offences individually against the range of objective seriousness. Most production, transmission and contact offences were placed below the mid-range of objective seriousness, though some fell closer to mid-range. The two NSW possession charges (sequences H#956/2 and 20) were assessed at around mid-range and above mid-range respectively, reflecting the extraordinary volume of material held, the methodical organisation of files, and the extended period of possession (at [181]-[182]). The court noted the offending involved planning and sophistication, including the deliberate selection of premises to minimise detection, the use of a procurement network, and the payment of money to both the procurer and child victims (at [425]).

Credibility, remorse and rehabilitation: The court rejected the offender's expressions of remorse as genuine, finding they were more concerned with his own predicament than the welfare of his victims (at [432]). The court found the offender demonstrated a capacity for manipulation, including selective provision of information to psychiatrist Dr Nielssen, whose opinions were therefore given limited weight (at [429]-[430]). Dr Nielssen's assessment of low risk of reoffending was not accepted, and the court found there were only modest if any prospects of rehabilitation (at [435]). The court did not accept the offender's evidence that he could not achieve erection or ejaculation, a claim that conflicted with the agreed statement of facts (at [431]).

Guilty plea discount: A discount of 25 percent was applied to each individual sentence in recognition of the offender's early guilty plea, which avoided the need to bring witnesses from the Philippines to Australia and spared the victims additional trauma (at [14]-[15], [409]).

Sentencing structure: The court imposed separate aggregate sentences for the NSW offences and the Commonwealth offences, consistent with the requirements discussed in Fasciale v R and Sheu v R, noting that a single aggregate sentence cannot combine State and Commonwealth offences (at [13]). The NSW aggregate sentence commenced on 6 October 2018, the date of the offender's arrest, with the Commonwealth aggregate sentence commencing on 6 October 2020 to reflect appropriate accumulation. The court structured the parole period with the offender's age and compromised health in mind, observing that a five-year parole period should provide adequate opportunity for rehabilitation and reintegration (at [440], [454]-[455]).

Orders Made

  • For the NSW offences (sequences H#956/2 and 20): aggregate sentence of 4 years and 3 months imprisonment, with a non-parole period of 3 years and 2 months commencing 6 October 2018, expiring 5 December 2021; parole eligibility period expiring 5 January 2023.
  • For the Commonwealth offences: aggregate sentence of 17 years imprisonment commencing 6 October 2020, with a non-parole period of 12 years expiring 5 October 2032; parole eligibility period expiring 5 October 2037.
  • The combined custodial component extends from 6 October 2018 to 5 October 2032 (14 years), followed by a parole period of 5 years.
  • Forfeiture order made.
  • Child Protection Register documents placed on the court file.

Key Takeaways

  • Separate aggregate sentences are required where an offender is sentenced for both NSW and Commonwealth offences in the same proceedings. A single aggregate sentence spanning both jurisdictions is not permissible: the court applied Fasciale v R and Sheu v R to impose one aggregate for the State offences and a second for the Commonwealth offences, with appropriate accumulation between them (at [12]-[13]).

  • Where psychiatric evidence is based substantially on representations made by an articulate, intelligent offender whose credibility is in question, a sentencing court may substantially discount that evidence, particularly where the psychiatrist did not have a full understanding of the extent of the offending and did not adequately test the reliability of the offender's self-reporting (at [206]-[207]).

  • A finding of genuine remorse requires more than articulate expressions of contrition. The District Court declined to accept the offender's remorse as genuine where his expressions appeared self-serving, were carefully calibrated to the specific charges then known, and were undermined by selective provision of information to his own experts and by conduct in evidence (at [432]).

  • Planning and organisation in the commission of child sexual offences, including the procurement of premises to reduce detection risk, the use of intermediaries to source victims, and the payment of money to control access to children, are significant aggravating features regardless of whether the offending is assessed below the mid-range of objective seriousness on individual counts (at [425], [438]).

  • Under the aggregate sentencing scheme available for Commonwealth offences, confirmed in DPP v Beattie and applicable alongside s 53A of the Crimes (Sentencing Procedure) Act 1999, a court imposing indicative sentences for individual offences must then fix a single aggregate that reflects totality, including the appropriate degree of concurrence and accumulation between the NSW and Commonwealth aggregate terms (at [12]-[13], [451]-[452]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900
- Crimes Act 1914 (C’th)
- Crimes (Sentencing Procedure) Act 1999
- Criminal Code 1995 (C’th)
- Customs Act 1901 (C’th)
- Evidence Act 1995

Cases
- Bae v R [2020] NSWCCA 35
- Betka v R [2020] NSWCCA 191
- Bugmy v The Queen [2013] HCA 37
- Cheung v The Queen (2001) 209 CLR 1
- Director of Public Prosecutions (C’th) v De La Rosa (2010) 79 NSWLR 1
- DPP v Beattie [2017] NSWCCA 301
- Fasciale v R [2010] 30 VR 643
- Filippou v The Queen [2015] HCA 29
- Hilli v R, Jones v R [2010] HCA 45
- Huang aka Liu v R [2018] NSWCCA 70
- Imbornone v R [2017] NSWCCA 144
- Minehan v R [2010] NSWCCA 140
- Muldrock v The Queen [2011] HCA 39
- Neal v The Queen (1982) 149 CLR 305
- R v Borkowski [2009] NSWCCA 102
- R v Clarkson [2011] 32 VR 361
- R v Porte [2015] NSWCCA 174
- R v Qutami [2001] NSWCCA 353
- Sheu v R [2018] NSWCCA 86
- Tepania v R [2018] NSWCCA 247
- The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383
- Veen v The Queen (No. 2) (1988) HCA 14