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District Court 26 November 2021

R v BL

[2021] NSWDC 659

Sexual offences
SENTENCE BUGMY PRINCIPLES CONSIDERATION OF OFFENDER’S DRUG ADDICTION PROSPECTS OF REHABILITATION

Citation: R v BL [2021] NSWDC 659
Court: District Court of New South Wales
Date: 26 November 2021
Judge: Abadee DCJ

Background

The offender, a man born in 1993, pleaded guilty to four offences arising from the covert recording of children at his Seven Hills home between February and August 2020. He had been living with his de facto partner and her five children, and his own young daughter visited periodically. Using a hidden mobile phone and the "Alfred Camera" app, as well as a hollowed-out deodorant can concealing a camera, he recorded multiple children in the bathroom and bedrooms without their knowledge or consent.

The most serious offence involved the offender's own five-year-old daughter. Footage recovered from his phone showed him setting up the camera, assisting the child to undress, and then deliberately positioning her to expose her genitals to the recording device. The remaining three offences involved the covert recording of intimate images of girls aged nine to ten, fifteen, and sixteen.

Police investigation followed a disclosure within the household. When police attended, the offender denied having his phone, a claim later shown to be false. A forensic examination of his seized Samsung S9 and other devices recovered the recordings, and the offender was identified in the footage setting up the cameras.

  • What was the appropriate sentence across four counts of recording intimate images of children, including one charge of using a child to produce child abuse material under s 91G(1)(a) of the Crimes Act 1900 (NSW)?
  • What weight should be given to the offender's background of significant childhood trauma, including being a victim of prolonged sexual assault, pursuant to the principles in Bugmy v The Queen (2013) 249 CLR 571?
  • How should drug addiction bear on the assessment of culpability and moral responsibility?
  • Did special circumstances exist justifying a variation of the standard ratio between non-parole period and head sentence?
  • How should the totality principle apply when imposing an aggregate sentence across four related but distinct offences?

Decision

Abadee DCJ assessed the gravity of the offending as serious across all counts. The s 91G charge involving the offender's own daughter was treated as the most serious, given the deliberate and calculated nature of the conduct, the child's extreme youth and vulnerability, and the gross breach of parental trust involved. His Honour applied the factors identified by the Court of Criminal Appeal in Minehan v R (2010) 201 A Crim R 243 in evaluating the overall seriousness, noting the premeditated installation of recording devices, the number of victims, and the age range of those affected.

On the question of background and moral culpability, the court accepted that the offender had experienced significant and genuine childhood trauma. This included exposure to domestic violence, a chaotic upbringing, the loss of an infant son to SIDS, and prolonged sexual assault at the hands of a Scout leader over many years from the age of five. Applying Bugmy v The Queen, the court acknowledged that such a background diminishes moral culpability without excusing the conduct. The offender's Aboriginal descent and the principles from R v Fernando (1992) 76 A Crim R 58 were also taken into account.

The offender's claim that drug intoxication had caused him to act without awareness was given limited weight. The Corrections Officer noted that the claim was contradicted by the offender's own detailed recollection of how he positioned the cameras. His Honour did accept, however, that the offender's substance abuse history formed part of his broader background circumstances. The court found some encouraging signs of progress during pre-sentence custody and held that special circumstances existed, warranting a non-parole period representing half of the head sentence rather than the standard two-thirds ratio, to allow for a longer supervisory period on release.

On totality, the court declined to impose fully concurrent sentences, recognising that while three of the four offences shared a similar character, some accumulation was appropriate. The s 91G offence occupied a distinct and more serious category. The sentence was backdated to 1 March 2021, a date agreed by both parties as a pragmatic measure to preserve a meaningful period of parole.

Orders Made

  • The offender was convicted on all four counts: H7693662/5, H7693662/10, H7693662/11, and H7693662/12.
  • An aggregate sentence of 4 years' imprisonment was imposed, commencing 1 March 2021 and expiring 28 February 2025.
  • Non-parole period of 2 years, expiring 28 February 2023.
  • Indicative sentences: 1 year and 1 month for each of counts 5, 11, and 12; 2 years and 3 months (with a non-parole period of 1 year and 1 month) for count 10.

Key Takeaways

  • Under Bugmy v The Queen, a sentencing court must consider the impact of severe childhood trauma on an offender's moral culpability, even in cases involving serious sexual offending against children. Acknowledging that impact does not excuse the conduct; it calibrates the weight given to punishment relative to other sentencing purposes.
  • The court applied the Minehan v R factors in assessing the gravity of covert intimate image offences, including the degree of planning, the number and vulnerability of victims, and the nature of the relationship between offender and victim.
  • Where an offender claims drug-induced unawareness of offending, that claim will receive reduced weight when it is contradicted by the offender's own detailed recollection of the relevant acts.
  • Special circumstances justifying a departure from the standard non-parole ratio can be established where evidence of rehabilitation progress exists and a longer period of post-release supervision is considered desirable to reduce the risk of institutionalisation.
  • In applying the totality principle to multiple offences of similar character, the District Court held that some accumulation remains necessary even among related counts, particularly where one charge falls into a materially more serious statutory category.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW) ss 91G, 91P
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- Minehan v R (2010) 201 A Crim R 243
- R v Fernando (1992) 76 A Crim R 58
- R v Henry (1999) 46 NSWLR 346
- R v Booth [2009] NSWCCA 89
- R v Porte (2015) 252 A Crim R 294; [2015] NSWCCA 174
- R v ABS [2005] NSWCCA 255
- The Queen v De Simoni (1981) 147 CLR 383