R v LS; R v MH

1. [1]

   BELL P: I agree with the reasons, orders and resentences proposed by Wilson J.

2. [2]

   DAVIES J: I agree with Wilson J.

3. [3]

   WILSON J: This is an appeal brought by the Director of Public Prosecutions pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) against the sentences imposed upon the respondents, LS and MH, at Port Macquarie District Court on 6 March 2020. The Director contends that the sentences are so low as to be manifestly inadequate.

4. [4]

   For a number of child abuse material and assault offences, LS was sentenced to an aggregate term of 4 years imprisonment, to date from 6 February 2019, expiring on 5 February 2023, with a non-parole period (“NPP”) of 18 months, expiring on 5 August 2020. A finding of special circumstances in his favour was made pursuant to s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). Three further offences were before the sentencing court to be taken into account when sentence was imposed, pursuant to s 33 of that Act.

5. [5]

   For similar, related offences, MH was sentenced to an aggregate term of 3 years imprisonment to date from 6 February 2019, expiring on 5 February 2022, with a NPP of 21 months, expiring on 5 November 2020. The sentence imposed upon MH took into account two further offences. A finding of special circumstances was similarly made in MH’s favour.

6. [6]

   The sequence number (“seq”) of each offence, the offences, offences taken or to be taken into account pursuant to s 33 of the Crimes (Sentencing Procedure) Act, maximum penalties, and indicative sentences, relevant to each respondent, are set out below. All sections given are from the Crimes Act 1900 (NSW). The offences against each respondent that correspond appear side by side in the table that follows.

The Background to the Proceedings

1. [7]

   LS and MH are husband and wife. Their crimes came to the attention of police through concerned family members, who reported the activities of LS and MH to the authorities. The couple were arrested on 6 February 2019 and charged with a number of offences. Each was remanded in custody from that date.

2. [8]

   Each entered pleas of guilty in the Local Court on 10 October 2019, eight months after charge, to four corresponding charges, with others referred to the District Court on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW). The s 166 offences were those ultimately taken into account, or intended to be taken into account, when sentence was imposed upon each respondent.

3. [9]

   Following committal for sentence, the respondents adhered to their respective pleas when the matter came before the District Court, and acknowledged guilt of the offences on a number of Form One documents, asking the sentencing judge, Judge Flannery SC, to take them into account when imposing sentence.

4. [10]

   Joint proceedings were heard before the District Court sitting at Port Macquarie, on 12 December 2019, 16 December 2019 (LS only) and 27 February 2020. Sentences were imposed on 6 March 2020.

The Proceedings in the District Court

1. [11]

   The facts of the offences were detailed in a document agreed to by the Crown and the respondents, and the sentencing judge found the facts in accordance with the agreed statement of them.

2. [12]

   In her remarks on sentence, the sentencing judge set out the facts in summary form. The facts are extremely disturbing, but it is necessary to set them out in greater detail here, since part of the Crown’s case on appeal is that the sentencing judge mistook the gravity of the offending conduct.

3. [13]

   The respondents are married, and have a young son born in May 2018, “ASH”. MH has another child to an earlier relationship, a girl born in February 2017, “KH”. The four lived together as a family on the north coast of New South Wales.

4. [14]

   On 11 November 2018, LS sent a photograph to his wife via a messaging platform. The image showed a pre-pubescent female (also referred to in the agreed facts as “an infant child”), naked from the waist down, laying on her back, with an adult male penetrating her vagina with his erect penis. The girl’s head was held by another female child of similar age. The image was accompanied by LS’s written message to his wife, “Look at this young slut baby”. This image was later found on the mobile telephone used by each respondent.

5. [15]

   The charges arising from this incident relevant to LS are those reflected by seqs 4 (disseminate child abuse material) and, on a Form One document, seq. 5 (possess child abuse material); for MH the charge is seq. 5 (possess child abuse material).

6. [16]

   The next set of offences occurred on 26 November 2018 and relate to an exchange of written messages between LS and MH via a messaging platform on Facebook. At the time, the couple were at home with the two children. The offences reflecting this conduct are, for LS, seq. 12 (produce child abuse material) and, on a Form One document, seq. 13 (disseminate child abuse material); for MH the offences are seq. 2 (produce child abuse material) and, on a Form One document, seq. 12 (disseminate child abuse material).

7. [17]

   A written exchange was initiated by MH, and then continued by the pair, as follows, reproducing the syntax as in the original exchange, and the emphasis given in the Statement of Facts before the sentencing court, but excluding those portions that related to activities referencing adults.

8. [18]

   The offences of aggravated indecent assault (seq. 8), using a child under 14 years to produce child abuse material (seq. 3) and, on the Form, disseminating child abuse material (seq. 10) against LS relate to that exchange; as do the offences against MH of inciting an act of indecency (seq. 11), consent to using a child under 14 years to produce child abuse material (seq. 4) and, on the Form, possessing child abuse material (seq. 10).

9. [19]

   MH asked LS to take photographs or other images of KH – “Get her to touch u n then send me a video” – using his mobile telephone, and send them to her. LS took an image of KH showing the baby naked from the waist down, with LS’s exposed erect penis touching her vagina. Across the image the words, “Maybe one day” had been endorsed.

10. [20]

    Apparently referring to the image LS sent, MH sent him a message “I love that picture. She wants your cock.” The exchange continued with a message from LS, “Did you like my cock on her”, with MH’s reply, “It looked so big”.

11. [21]

    Later, when police seized LS’s mobile telephone, the image of KH with her step-father’s erect penis against her vagina was recovered. It was the only such photo of KH that was recovered; it is part of the evidence for seq. 8 against LS and seq. 11 against MH.

12. [22]

    The next set of offences arises from a further exchange of written messages between LS and MH using Facebook, on 27 November 2018 and 28 November 2018. They are, for LS, seq. 12 of produce child abuse material and, on a Form One, seq. 13 of disseminating child abuse material. For MH the offences are the same, being respectively seq. 2 and, on the Form One, seq 12.

13. [23]

    Again, the syntax and emphasis is as in the original, with references to activity with adults deleted.

14. [24]

    The exchange of Facebook messages between LS and MH continued the following day, 28 November 2018:

15. [25]

    In or around early December 2018, family members of MH, concerned at what were regarded as changes in her behaviour, accessed her Facebook account and saw the messages set out above. The matter was reported to the police.

16. [26]

    On 12 December 2018, police officers spoke to LS and MH at their home. Officers from the Department of Family and Community Services removed KH and ASH.

17. [27]

    When spoken to, LS told the police:

18. [28]

    As to why he wrote the messages, LS said, “I don’t know. I thought she [MH] like it”.

19. [29]

    He was asked if he was aroused when writing the messages and responded, “No. Not one bit. I hate it. I hate it.”

20. [30]

    He said he was on the couch when he was writing the messages and his wife was in the bath. He said KH had been asleep. He denied having taken photos of KH. When asked if he ever took a photograph showing his penis near KH he said, “I had my penis out, yeah, but that’s like me walking around the house naked or something.”

21. [31]

    When asked about a photograph of that nature he acknowledged having taken a photograph showing his penis near KH, which he sent to MH. He said he was on the couch at the time and KH had been standing in front of him. He said his penis was erect because he and his wife were talking “about this other girl.” He denied being aroused by KH and said he was only aroused because of the conversation about the other girl.

22. [32]

    LS denied having licked KH’s vagina or touched her inappropriately.

23. [33]

    MH was also spoken to by the police. When informed that the police were aware of some communication between her and her husband she replied:

24. [34]

    The conversation to which she referred was “one about KH”.She said that she had been in the bath at the time she sent the messages. MH denied that LS had ever licked or touched her daughter’s vagina.

25. [35]

    When asked if LS had ever sent her photographs of him doing something to KH she replied, “Not licking, no”. She acknowledged that he had sent her a photograph which showed, “Just his cock near her. Nothing”.

26. [36]

    When taken to various passages of the messages exchanged between her and her husband, she said, “It’s all talk.”

27. [37]

    The mobile telephones used by LS and MH were seized. The child abuse image referred to at [14] above was found on both LS’s and MH’s phones; the image of LS’s penis against KH’s exposed vagina was found on LS’s phone.

28. [38]

    Following these conversations, police installed an authorised listening device in LS’s and MH’s home, and a number of conversations between them in the period 22 January 2019 and 6 February 2019 concerning the police investigation were recorded.

29. [39]

    In one conversation, on 23 January 2019, MH said to LS:

30. [40]

    In another conversation, on 27 January 2019, LS was recorded telling his wife:

31. [41]

    His wife responded:

32. [42]

    On 6 February 2019, the respondents attended a local police station and were arrested. Each took part in an interview with investigating police.

33. [43]

    LS told police:

34. [44]

    He declined to answer further questions.

35. [45]

    In her interview with police MH was shown the photograph of her daughter with an erect penis touching her vagina. She identified KH but declined to say anything about the penis. Of the Facebook messages MH said:

36. [46]

    She could not recall the message that LS had sent her on 11 November 2017 containing a child abuse image.

37. [47]

    Criminal histories with respect to both respondents were tendered to the sentencing court. LS had a minor record for traffic offences; MH had no criminal convictions.

38. [48]

    In relation to LS, the Crown tendered some extracts from medical notes held by Justice Health, relating to a cardiac condition suffered by the respondent. On reception by Corrections NSW on 7 February 2019, LS showed some situational distress, and reported that he had been born with a cardiac condition, the name of which he could not recall. He said that he had cardiac surgery when he was aged six months, and further surgery for “valve replacement” at 16 years. A review of his condition had taken place every two years.

39. [49]

    On 17 July 2019, LS completed a “self-referral” form noting he had a medication issue, had been sick with “the flu”, and was concerned about his heart. He stated on the form that the problem had “continued for the previous month”. 10 days later LS advised Justice Health nursing staff that he had an appointment with a cardiologist in the community for review of his condition. He was referred to a doctor for review in custody.

40. [50]

    Although the handwriting is difficult to read, it appears from a Justice Health file note of 5 August 2019 that the medical review occurred on that date. The respondent was noted to have had a very poor diet prior to entering custody, with a history of eating nothing but meat, potatoes, bread, noodles, and fizzy drinks, with no fruit or vegetables consumed. He had lost a considerable amount of weight in custody, as he was “training for the first time in his life”. The doctor referred the respondent for an urgent cardiology review and an “echo stress” test. It was also noted that the defendant needed a dental examination, having never before consulted a dentist.

41. [51]

    On 7 August 2019, the respondent was seen by nursing staff. His blood pressure was elevated but he reported “feeling better” after a bout of diarrhoea had resolved. On 12 August 2019, LS was transferred to a public hospital for cardiology review, as ordered on 5 August 2019. He was admitted for investigation. By 14 August 2019, he was febrile, and was transferred to a teaching hospital when a bed became available. Although the Justice Health notes do not refer to it, other evidence before the sentencing judge, referred to below, details cardiac surgery carried out on 20 August 2019.

42. [52]

    A Sentencing Assessment Report (“SAR”) relevant to MH was tendered. The author noted that, prior to deferring her work to care for her two young children, the respondent had held long-term employment as a fully qualified hairdresser. She had a supportive family network, and intended to live with family on release from prison.

43. [53]

    She was observed to minimise her and her husband’s offences, although accepting them as described in the agreed facts. She deflected responsibility for her conduct to her husband, claiming that she had been subjected to long-term verbal and physical abuse, control and intimidation, at his hands, and said that her offending had occurred as a consequence of his adverse influence. She said she suffered from post-natal depression.

44. [54]

    MH did not refer to KH in discussing the offences with the author of the SAR, and nor did she identify any impact upon her daughter of the offences.

45. [55]

    She was assessed as posing a medium to low risk of reoffending.

46. [56]

    Relevant to his heart condition, LS tendered a short report from Dr Rachael Cordina (Ex. 2), a cardiologist with the major teaching hospital to which LS had been admitted for review in August 2019. Dr Cordina summarised the treatment given to the respondent as:

47. [57]

    Of that treatment, Dr Cordina said:

48. [58]

    A psychological report from Kris North, dated 9 December 2019, became Ex. 1 in LS’s case. Ms North took a history from the respondent of a supportive childhood despite his parents’ separation when he was aged 10 years. His parents continued to support him, although his offences had led to a strain in his relationship with his sister.

49. [59]

    The respondent was educated to Year 11, but experienced problems during his school years due to dyslexia and learning difficulties. He had low levels of literacy and left school without completing Year 11. LS had worked fairly consistently, in a range of positions: as a mechanic, in an abattoir, with his father-in-law and, most recently, as a plasterer.

50. [60]

    He had two significant relationships before meeting his wife in 2017 at the age of 21. Although their relationship was “up and down” LS continued in it because MH “had a spell over” him, and he wanted “to make her happy”. He and his wife had a young son, now cared for by his sister; and he had enjoyed a close parental relationship with MH’s daughter KH. He reported being very distressed by the removal of the children from his and his wife’s care.

51. [61]

    LS referred to his cardiac condition, and the surgery he underwent as a child and in August 2019. He said he was scared that he would not receive adequate treatment in custody. He had no other health concerns.

52. [62]

    The respondent reported having been distressed as a child by witnessing domestic violence, and then struggling to cope with his parents’ separation. He had become depressed when his son ASH and step-daughter KH were removed from his care. Since entering custody his mood had been low and he felt “putrid” about his offences.

53. [63]

    He gave an unremarkable sexual history, and denied any sexual interest in children, or searching for child abuse material on-line. He explained the image of a child being penetrated by an adult male that he had sent to MH as one he found on “google images”, and said he sent it to his wife only because he thought that she would like it.

54. [64]

    On assessment, Ms North found the respondent to present with symptoms consistent with depression, such as lethargy, a sense of hopelessness, and some fleeting suicidal ideation. After administering various tests, Ms North concluded that LS fell within the low average range of intelligence, reporting symptoms associated with severe depression and anxiety. LS was assessed as posing a moderate – high risk of sexual reoffending, and “a 10% risk”, or slightly elevated risk, of “child pornography” recidivism.

55. [65]

    The other evidence relied upon by LS consisted of a number of testimonials from family members. The respondent’s mother described his congenital heart condition, which had required open heart surgery at six months of age, and further surgery when LS was 15 years old. She gave (what is presumably a hearsay) account of the respondent’s medical treatment in custody, and criticised Justice Health for “misdiagnosing” cancer, rather than treating his heart condition. She thought his mental health had deteriorated.

56. [66]

    The respondent’s mother described him as “a gentle soul” who loved to please others. She said that, with her son “away from the toxic relationship”, he could “see common-sense” and was remorseful. She regarded the criminal charges as having resulted in the respondent losing his job, “a lot of his family”, his wife and, almost, “his life”. She assured the sentencing court that LS would have family support to assist him on release from custody.

57. [67]

    Other family members – an aunt, cousins, LS’s step-father – all recorded their support for the respondent, who was variously described as hard-working, respectful, gentle, and “a wonderful father”. His health issues were referred to by all correspondents, with LS’s cousins giving an emotional account of his experience when hospitalised in August 2019.

58. [68]

    LS also tendered a number of letters written to him by MH since each had been incarcerated, apparently to demonstrate that the relationship between the respondents was one of “co-dependency”, and rebut MH’s claims that she was abused and dominated by LS and participated in the offences under his malign influence. They are, for the most part, expressions of MH’s love for LS, although there are some references to MH’s wish for LS to “take the blame”, to improve her chances of being reunited with the children. The last of the letters ends the couple’s relationship, because of what MH asserted was LS’s failure to “have her back”.

59. [69]

    LS did not give evidence on sentence.

60. [70]

    MH, also, did not give evidence in her case. She relied upon testimony from her mother, and a number of documentary reports and letters.

61. [71]

    A psychiatric report from Dr Richard Furst was tendered, which gave an account of MH’s background and personal circumstances, largely drawn from MH. MH gave a history of growing up in a supportive family environment, and being close to her parents, who separated in her later teenage years. She attended school until Year 11, undertaking an apprenticeship in hairdressing for three years after finishing school. On qualifying as a hairdresser, MH ran her own business, giving it up only to look after her two children.

62. [72]

    She had two serious relationships before marrying LS, KH being born to her second partner. That relationship ended early in the pregnancy, and the respondent met LS when KH was three weeks old. LS took on the role of step-father to the baby, living with MH for about a year, before the couple married in November 2018. MH told Dr Furst that she had experienced symptoms consistent with post-natal depression after the births of both her children.

63. [73]

    She said that LS was jealous, possessive, and very controlling, and became angry with her when she was not interested in sexual encounters that included other women. She claimed that he turned her away from her family. Of the offences, MH said that she participated to keep LS happy, as she feared both his temper, and him leaving her. She denied any sexual interest in children.

64. [74]

    She reported reconnecting with family after her arrest.

65. [75]

    Dr Furst thought that the respondent was of average intelligence, with a depressed mood, and expressing anxiety about her situation. He was unable to agree with a “diagnosis” of dependent personality disorder made by a nurse, Lee Knight, opining instead that MH had a major depressive disorder. On the basis of MH’s account of her relationship with LS, Dr Furst concluded that:

66. [76]

    The doctor considered that the sexual offences were the product of a dysfunctional relationship characterised by control and fear, such that the respondent acquiesced in her husband’s deviance. Her depression was, in Dr Furst’s opinion, relevant, since it magnified her fears of the consequences of not “going along with what he wanted”. He thought it important that treatment address “more healthy boundaries” such that she could be more assertive in future. He disagreed with both the “diagnosis” and the treatment regime recommended by Mr Knight.

67. [77]

    Since entering custody, the respondent had been prescribed medication for depression and insomnia, which Dr Furst thought should continue.

68. [78]

    The alternative “diagnosis” noted by Dr Furst was given in a report of 19 December 2019 by Lee Knight, a clinical nurse consultant. In his lengthy “psychiatric report,” Mr Knight gave an account of MH’s participation in the offences, which was attributed to the domination of LS, and MH’s fear of angering him. She told Mr Knight that her husband began to refer to children when describing sexual fantasies, asking her what she would like to do to them when the children were older. When she objected LS became angry and shouted at her. She accepted his conduct, including the incident when he put his erect penis against the vagina of her daughter and sent her a photograph of it, as she feared losing him.

69. [79]

    In a “follow-up assessment” on 21 November 2019, MH told Mr Knight that she wished to give him further detail about her ex-husband, saying:

70. [80]

    Mr Knight thought that MH had a dependent personality disorder, characterised by submissive and clinging behaviour. He regarded this disorder as relevant to her offending, as she had been:

71. [81]

    MH was keen to engage in on-going treatment with Mr Knight upon release and Mr Knight detailed a treatment management plan for her for the future.

72. [82]

    The sentencing court additionally received a number of personal references concerning MH from family members. Her mother described MH as a beautiful and happy child who had grown up surrounded by family. A club foot that MH was born with led to the necessity for numerous surgical procedures, and limited the activities MH could participate in in her youth. She persisted with sport despite her disability, and played netball with much success. She was a solid student and, on commencing her apprenticeship, worked hard to be successful.

73. [83]

    MH’s mother referred to the problems that the family perceived with LS, noted by them on first meeting him. She thought that, when in a relationship with him, MH had been “in a dark place”. Since these matters had come to light, and after the removal of her children, MH had expressed her sadness and remorse, and her determination to receive treatment.

74. [84]

    In oral evidence, MH’s mother deposed that her family were supportive of MH, and she would be provided with a loving home and assistance on release from custody, inclusive of any help necessary to access treatment for mental health issues. The witness described MH’s withdrawal from friends and family after the birth of KH, and again after the birth of ASH.

75. [85]

    Other family members wrote of the significant support enjoyed by the respondent, who was a “wonderful mum”. A prison chaplain spoke of MH positively, and a family friend (who did not know the nature of the charges) wrote that MH was a responsible and loving mother, and a respected businesswoman and friend.

76. [86]

    In a letter written to the sentencing court (and thus with the sentiments expressed therein untested by any cross-examination), MH said that she was sorry for having failed her children and:

77. [87]

    She claimed to have been mentally unwell at the time of the offences and said that she had suffered from post-natal depression following the birth of her children. She apologised for having “allowed this to occur”.

78. [88]

    There was evidence of courses completed by MH in custody, including courses relating to parenting and relationships.

79. [89]

    The sentencing judge observed that, the pleas of guilty having been entered in the Local Court, she intended to reduce the sentences imposed upon both LS and MH by 25% to reflect their utilitarian value.

80. [90]

    After setting out the facts in summary form her Honour concluded that “the offences” involved no planning, did not result in a material benefit to either MH or LS, and had not been committed in connection with any collaborative network of like-minded people. Her Honour observed:

81. [91]

    Her Honour found the offences arising from the image sent by LS to MH depicting an adult male and two unknown children fell below the mid-range of objective gravity, although LS’s act in sending the image was more serious than that of MH in receiving and keeping it.

82. [92]

    Of the child abuse material constituted by the written messages exchanged between LS and MH, the sentencing judge concluded that the offences were serious, if “amateurish, immature, lacking in sophistication, limited to the two of them, and […] addressing their own sexual gratification”. On the whole, they were assessed as falling “just below the mid-range”.

83. [93]

    LS’s offence in indecently assaulting KH, and MH’s corresponding offence of inciting an indecent act, were assessed by the sentencing judge as falling within “the mid-range” of seriousness. The related offences of using a child (LS) and consenting to use a child (MH) for the production of child abuse material were found by the sentencing judge to be below the mid-range of objective seriousness, taking into account that:

84. [94]

    Her Honour then turned to the respective subjective cases placed before the court. She referred to a number of matters which, she said, she accepted, including that LS had a significant heart condition that had led to multiple surgeries, and caused him difficulties as a child; that he had learning disabilities when at school, but that he had still maintained employment after leaving school; that he told Ms North that MH had a spell over him; and that he had been “close to the two kids” and felt shattered by their removal from his care.

85. [95]

    Referring to the history given by LS’s mother of the surgery conducted in August 2019 [a history contradicted in significant regards by the Justice Health medical notes], the sentencing judge described the circumstances leading to the cardiac surgery undergone by LS at that time. She set out Dr Cordina’s conclusions that LS’s heart function had been adversely affected by the need to have surgery, from which LS might never fully recover, with a consequential effect on his mental health. Referring to a comment in a letter from LS’s cousins, in which the joint authors said that the respondent had “been chained to a bed like a wild animal” when in Intensive Care following surgery, her Honour observed that the respondent had spent seven weeks in hospital during which time he “was chained to the bed”.

86. [96]

    The sentencing judge set out the material in the report of Ms North, and the contents of the testimonials tendered on LS’s behalf. She said:

87. [97]

    Despite Ms North’s conclusion that LS posed a medium to high risk of sexual recidivism, her Honour concluded that the respondent’s prospects of rehabilitation were “reasonable to good”, particularly if LS participated in treatment to address his offending conduct.

88. [98]

    She gave significant weight to the defendant’s heart condition, saying:

89. [99]

    The sentencing judge outlined MH’s personal circumstances, including details of her education, employment, and health, drawing from the report of Dr Furst, and that of Mr Knight, together with the letters from family members.

90. [100]

    The varying accounts of the offending that MH had given to her mother, Dr Furst, and Mr Knight were all set out by the sentencing judge. However, her Honour concluded that she could not accept “all of what [MH] told Dr Furst and Mr Knight”, and particularly her assignment of blame to LS. She did accept that MH suffered post-natal depression and that “what I accept is her dependent personality disorder” made MH fearful of being abandoned, and contributed to the commission of the offences. The sentencing judge thus concluded that MH’s moral culpability was “somewhat reduced”, and there was “a lesser need for the sentence to reflect a substantial measure of general deterrence, denunciation or retribution”.

91. [101]

    The sentencing judge was satisfied that the respondent had “some insight” into the seriousness of her offending, and was remorseful. She assessed MH’s prospects of rehabilitation as reasonable to good, particularly if she had treatment as “recommended by Dr Furst and Mr Knight”.

92. [102]

    Special circumstances were found to ensure that MH followed the sort of treatment plan recommended.

93. [103]

    Referring to parity, although the sentencing judge accepted that LS had played a more active role in sending the first child abuse image to MH, she was not prepared to find that LS was the instigator of the remaining offences. Her Honour thought the respective cases were similar, observing:

94. [104]

    General deterrence was noted to be a consideration, although “moderated” in MH’s case because of her mental health.

95. [105]

    The sentences set out above were imposed.

96. [106]

    In imposing sentence, her Honour mistook the offences against which the Form One offences were taken into account. For LS she failed to take seq. 13 into account when determining the indicative sentence for seq. 12. For MH she wrongly took seq. 12 into account against seq. 4 when determining the indicative sentence, instead of against seq. 2, as she had been asked by MH to do. To that extent, the sentencing exercise clearly miscarried.

The Director’s Appeal

1. [107]

   The Director brings a single ground of appeal with respect to the sentences imposed upon LS and MH, contending that each is so manifestly inadequate as to amount to an affront to the administration of justice, in the sense referred to in Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49 at [42]. Acknowledging the broad discretion exercised by first instance judges, the limited purpose of a Crown appeal, and the existence of this Court’s residual discretion not to interfere even where error is established, the Director nevertheless contends that intervention is required to ensure that public confidence in the administration of justice is not undermined by allowing such inadequate sentences to stand.

2. [108]

   It is submitted that the sentences imposed upon LS and MH failed to adequately address the criminality in each case, which was significantly higher than the assessment made by the sentencing judge.

3. [109]

   In response both LS and, by adopting the submissions of LS, MH, attacked the legitimacy of the Crown appeal, arguing that there was unexplained delay in bringing the appeal, that the Crown’s submissions on appeal contradict those made by it below, and that, to uphold the Crown’s appeal on the basis on which it is advanced, this Court would fall into error of the kind outlined in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31.

4. [110]

   The respondents complain that the Crown has failed to explain why, in circumstances where they were both advised of the prospect of a Crown appeal on the day of which sentence was imposed, it took one month to file the Notice of Appeal.

5. [111]

   As to the Crown’s argument before this Court that the crimes committed by the respondents are more serious than the sentencing judge assessed them to be, it is contended by the respondents that, before the District Court, the Crown did not raise those matters raised in this Court relevant to objective gravity, and the principle in Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [82] applies, at least with respect to the exercise of the residual discretion. They submit that the conclusions reached by the sentencing judge, and the sentences imposed by her, were open.

6. [112]

   The de Simoni point made by the respondents is to the effect that the Crown has urged upon this Court a course which would involve having regard to the commission by the respondents of offences either not charged against them, or charged and later withdrawn, to aggravate the criminality of the crimes for which sentence was imposed, thus itself falling into error.

7. [113]

   The respondents contend that the sentences imposed by the sentencing judge were open to her, and the Crown’s appeals should be dismissed.

Consideration

1. [114]

   It may, in some regards, be telling that, in responding to the Crown’s appeals, the principal focus of the respondents was on the asserted illegitimacy of the Crown’s approach, and to matters which might militate in favour of this Court exercising the residual discretion and declining to intervene, rather than on matters pointing to the adequacy of sentence.

2. [115]

   That may be because there is little that can be advanced in support of the sentences imposed at first instance.

3. [116]

   There was clearly error in the way in which the sentencing judge dealt, or failed to deal, with some of the offences before the court on Form One documents.

4. [117]

   Section 33 of the Crimes (Sentencing Procedure) Act provides a statutory power for a sentencing judge to take offences of which an offender has not been convicted into account when sentence is imposed for another offence, referred to as “the principal offence”. Section 33 is, relevantly, in these terms:

5. [118]

   Section 31 defines the “principal offence” as “an offence the subject of proceedings referred to in section 32(1)”. Section 32(1) refers to the “list of charges” that the prosecutor may file:

6. [119]

   That list of charges is the document generally known as a “Form One document”.

7. [120]

   LS had asked her Honour to take into account an offence of disseminating child abuse material (seq. 13) when he was sentenced for the principal offence of producing child abuse material, seq. 12. Subsequently, and although the sentencing judge had determined that it was appropriate to deal with the offences on the Form One documents as she was asked by LS (and MH) to do, she failed to take seq. 13 into account when indicating the sentence for seq. 12. Her Honour did not refer to seq. 13 at all in imposing sentence. Neither does the District Court’s written record, signed by the sentencing judge, refer to seq. 13.

8. [121]

   Thus, it appears that seq. 13 was not dealt with when her Honour assessed and indicated an appropriate sentence for seq. 12, and imposed sentence.

9. [122]

   For MH, an offence of disseminating child abuse material, seq. 12, was before the sentencing court on a Form One document, and MH asked that the offence be taken into account when she was sentenced for the principal offence of producing child abuse material, seq. 2. Although the sentencing judge did take seq. 12 into account, she did not do so as against the principal offence. Rather, her Honour took it into account against seq. 4, even though MH had not asked her to take seq. 12 into account against seq. 4, and her Honour thus had no power to do so.

10. [123]

    In Doumit v R [2011] NSWCCA 134 a sentencing judge who “attached” an offence on a Form One document to an offence other than the principal offence was held to be in error, and the relevant ground of appeal made out. This Court (Grove AJ, with whom Hodgson JA and Hoeben J agreed) said, at [16]:

11. [124]

    The importance of compliance with ss 32 and 33 has been repeatedly emphasised by this Court: R v Felton [2002] NSWCCA 443; 135 A Crim R 328 at [3]; R v Brandt [2004] NSWCCA 3; 42 MVR 262 at [8]; Woodward v R [2017] NSWCCA 44 at [25]–[26]; LS v R [2020] NSWCCA 27 at [35].

12. [125]

    The errors in dealing with the Form One offences are unlikely to have contributed to inadequacy of sentence, but they are errors nevertheless.

13. [126]

    There are other features of the sentencing decision which could also point to error.

14. [127]

    Despite the fact that each of LS and MH sought to blame the other for leading him, or her, into the commission of these crimes, and to minimise personal responsibility for them, the sentencing judge accepted that each was remorseful. Whilst there was some qualification with respect to those findings, no qualification appears to be reflected in the penalties imposed.

15. [128]

    In relation to LS, her Honour gave the respondent the full (and very generous) benefit of his mother’s hearsay account of what had happened to LS when he had required treatment for his heart condition in August 2019, even though that account was contradicted in material ways by the documentary record held by Justice Health. Specifically, the Justice Health records do not support LS’s apparent claims to family members that he had asked numerous times for his heart to be examined, and was either ignored, or told that he had “cancer”. Her Honour gave no explanation for why she accepted the account of Mrs S, and why it was to be preferred to the facts as revealed by LS’s medical records from his time in custody prior to surgery.

16. [129]

    In relation to MH, the sentencing judge gave significant weight to the opinion of a nurse, Mr Knight, that the respondent was suffering from a dependent personality disorder, and on that basis concluded that the extent to which the principle of general deterrence applied in her case should be mitigated. Her Honour accepted Mr Knight’s opinion as to MH’s dependent personality disorder even though MH had tendered a report from a psychiatrist in which that opinion had been rejected, and despite the fact that both Mr Knight and Dr Furst had reached their different conclusions almost exclusively on the basis of MH’s self-report, in circumstances where those reports differed substantially. Further, although the treatment regimes suggested by each of Mr Knight and Dr Furst were different, the sentencing judge viewed positively the respondent’s prospects of rehabilitation, on the basis that she would undertake the treatment suggested by both experts. The sentencing judge did not refer to or reconcile the differences in the expert evidence as to MH’s mental condition, or give any reason for accepting the opinion of a nurse over that of a psychiatrist as to a psychiatric diagnosis.

17. [130]

    Whilst any reader of her Honour’s remarks on sentence might wonder about these matters it is not, however, necessary to determine whether they are indicative of error to determine the Crown’s appeals, or to further consider them in that regard. That is so because the Crown’s principal argument, to which the respondents gave answer, must be accepted. On any proper analysis of the sentences imposed on LS and MH, manifest inadequacy is readily established, and it must be concluded that the sentencing judge erred. For the reasons which follow, these were sentences so inadequate to the purposes of sentencing set out by s 3A of the Crimes (Sentencing Procedure) Act, that it was not open to the sentencing judge to impose them.

18. [131]

    The Crown makes no complaint about the assessment made by the sentencing judge as to the objective gravity of sequences 4 (LS) and 5 (MH), and those offences can be set aside for the time being.

19. [132]

    The context for each of the balance of the respondents’ offences, about which the Crown does complain, is one of parental responsibility for infants, KH in particular, but also ASH. That context is relevant to the assessment of the gravity of each of the offences and provides the essential background to them.

20. [133]

    In assessing the charges that involved child abuse material, it is useful to consider the matters referred to in R v Hutchinson [2018] NSWCCA 152, at [45], per R A Hulme J (with whom Meagher JA and Button J agreed):

21. [134]

    This list of features was provided by his Honour as an update to those enumerated by him in Minehan v R [2010] NSWCCA 140; 201 A Crim R 243. However, as R A Hulme J made clear, at [46], the list is not an exhaustive one.

22. [135]

    There are some other features that bear materially on the assessment of the gravity of the child abuse material offences, which must be given great weight, being the relationship of the children involved to the respondents, who produced, disseminated, and possessed the material, and the circumstances in which the child abuse material came to be produced, disseminated, and possessed by them.

23. [136]

    The written messages exchanged between the respondents were regarded by the sentencing judge as of lesser seriousness because no images of actual children were contained therein, and that is a relevant feature. However, what the assessment of the sentencing judge did not comprehend was that the written descriptions of explicit sexual acts referred to real children rather than children originating in imagination and, further, children who were under the protection of the respondents.

24. [137]

    Whilst the sentencing judge regarded the written messages as “for the most part”, in the nature of fantasy, written descriptions of sexual acts with real children must be regarded as more serious than those which describe sexual acts with imaginary children. Both are grave in that they normalise the conduct described, and elevate the risk of abuse for all children. In Ponniah v The Queen [2011] WASCA 105, Mazza JA said, at [38]:

25. [138]

    How much more is that the case where the child abuse material involves a written description of real children, who are under the care of the relevant adult. The production, dissemination and possession of this material in such circumstances gives rise to a much heightened, immediate, and specific risk to the children so described.

26. [139]

    To have regard to that feature is not to fall into de Simoni error, since it does not, when assessing the gravity of the particular offences, take into account a matter which would establish the commission of a more serious crime. It merely comprehends the elevation of risk to KH and ASH by their parents’ offending conduct.

27. [140]

    In the aggravated indecent assault committed upon KH by her step-father, LS, the manifestation of the risk created by the production, dissemination, and possession of this graphic material can be seen. Whilst both LS and MH insisted that he or she would never “touch” their children, that is exactly what occurred, in an atmosphere created by the graphic nature of the descriptions of sexual activity with the children.

28. [141]

    That this material was produced, disseminated, and possessed by the parents, or by a step-parent, of actual children is a feature that significantly heightens the gravity of the offences, as does the fact that the production referencing the children, and creating an image of the actual assault committed upon KH, occurred in the home of the children, a place where KH and ASH should have been protected, and safe from use for the sexual gratification of an adult.

29. [142]

    That it was for the gratification of the respondents is clear from the content of the material, in which each respondent described a state of high sexual arousal surrounding the discussion of sexual acts committed upon their infant children, and in which LS’s penis is shown in an erect state against KH’s vagina. The denials of each in this regard are hollow.

30. [143]

    In regarding the gravity of these offences as just below the mid-range, the sentencing judge failed to fully comprehend the true gravity of the respondents’ conduct, contributing to the imposition of sentences which failed to comprehend the gravity of the crimes.

31. [144]

    In the assessment made by the sentencing judge of the objective gravity of the offence of aggravated indecent assault, error is also disclosed. Her Honour regarded this offence (and MH’s crime of inciting an act of indecency) as falling in the mid-range of objective gravity. Both are properly considered as offences of the highest order of gravity.

32. [145]

    LS’s offence involved direct contact between his naked genital area – his erect penis – and KH’s naked genital area. The degree of physical contact could not have been any greater without constituting a more serious offence. This is a significant feature of the offending conduct: R v PGM [2008] NSWCCA 172; (2008) 187 A Crim R 152, at [31].

33. [146]

    KH was aged one year and nine months at the time. A child of such a young age is entirely vulnerable to sexual abuse; KH had no ability to resist her step-father, and nor would she have had the understanding or language to make a complaint. That the offence was committed by her step-father, a person in a position of trust and authority, in her own home, increases the gravity.

34. [147]

    Although the sentencing judge appears to have taken this into account, it cannot be assumed that the young age of the victim lessens the seriousness of the offence because it is unlikely that there will be psychological harm. It is the experience of the courts that sexual crimes against children occasion harm to the victims. In KH’s case, she may not, as the sentencing judge observed, have a conscious memory of what her step-father did to her, but that does not mean that she will be unharmed by it. At some point, KH and ASH are likely to inquire about the circumstances in which they were removed from their parents’ care. Whatever the effect of the discovery by them of what took place, “it will not be positive”: WM v R [2020] NSWCCA 96 at [81] per Bellew J, with whom Johnson and Adamson JJ agreed.

35. [148]

    It is difficult to conjure up a more serious example of an offence contrary to s 61M(2) of the Crimes Act. When properly assessed as a gravely serious example of such an offence, and noting the maximum penalty that applies, together with the standard NPP, 10 years and 8 years imprisonment respectively, the inadequacy of the aggregate sentence imposed upon LS of 4 years with a NPP of 18 months, is made stark.

36. [149]

    For those same reasons, LS’s offence of using a child under 10 for the production of child abuse material, and MH’s offence in consenting to KH’s use for that purpose, must also be regarded as more serious than the sentencing judge allowed.

37. [150]

    Her Honour also took into account an irrelevant feature when assessing the gravity of the use child to produce child abuse material offences. She referred to the fact that “the victim” did not “endure[..] any other such behaviour”. Of course, had KH (or ASH) been sexually abused in any other way evidenced by a photograph or other image of the abuse, the respondents would have faced more, or more serious, charges. The gravity of an offence cannot be assessed by taking into account the absence of features that would have made it a more serious crime: R v CTG [2017] NSWCCA 163 at [60]–[63]; Faehringer v R [2017] NSWCCA 248 at [47].

38. [151]

    All of the offences, excluding those of 11 November 2017, were committed in circumstances where the respondents breached their most fundamental duty as (step)parents – to keep KH and ASH safe. The breach of trust involved was of a high order.

39. [152]

    I accept the Crown’s submissions that the sentencing judge did not properly assess the gravity of these offences. That conclusion is not to permit the Crown to recast its case on appeal, since the Crown’s submissions in the District Court placed considerable weight on the gravity of all of the respondents’ crimes.

40. [153]

    In my conclusion, the sentencing exercise miscarried and the sentences imposed on LS and MH were unreasonable and unjust.

Residual Discretion

1. [154]

   The conclusion that the sentencing judge erred in imposing the sentences that she did gives rise to consideration of whether this Court should intervene to re-sentence the respondents, or decline to do so in the exercise of its residual discretion.

2. [155]

   One feature that might militate in favour of the exercise of the discretion is the proximity of the expiration of the NPP for both respondents, LS in particular. However, that is an unfortunate consequence of the inadequacy of the sentences, rather than of any delay on the part of the Crown in bringing the appeal proceedings, or even of the Court in hearing the matter.

3. [156]

   The sentences were imposed on 6 March 2020. That same day the respondents were advised by the Crown that an appeal against the leniency of the sentences was being considered. The Notices of Appeal were filed and served on the respondents on 9 April 2020. The matter was heard on 18 June 2020. There has been no delay.

4. [157]

   Whilst LS’s cardiac condition, his care in custody, and the surgery he was obliged to endure in August 2019, are features relevant to the exercise of the residual discretion, a finding of special circumstances, or a mitigation of penalty, is capable of properly recognising that aspect of his case.

5. [158]

   I am persuaded that the sentences under appeal represent an “affront to the administration of justice”, and are such as to potentially undermine public confidence in the administration of the criminal justice system: Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49, at [42]. This Court should intervene to correct the error.

Re-sentence

1. [159]

   The respondents must be sentenced on the basis that each of the crimes that involves in some way KH, or ASH, or both children, are very serious indeed. LH’s crime of aggravated indecent assault is an offence that must attract a stern penalty. The sentences imposed must reflect the gravity of the crimes, denounce them, punish the respondents, and deter others. Since neither LS nor MH has ever truly acknowledged the gravity of these crimes, or their individual responsibility for them, with both attempting to agree upon what should be said to authorities prior to arrest, and subsequently, each blaming the other, an element of specific deterrence is also called for.

2. [160]

   The offences of 11 November 2017 are also individually serious, since they involve an image of penile-vaginal penetration by an adult male of a pre-pubescent child, in which another child of a similar age was exposed to the act. LS’s criminality is higher than that of MH since he sought out the image by an internet search, and downloaded it. It was he who provided it to MH, unsolicited by her. That each of LS and MH kept the image in his or her possession bespeaks its use to them as an object for sexual gratification. Denunciation and general deterrence have an important role to play.

3. [161]

   This offence is quite distinct from the remaining offences, and only the principle of totality militates in favour of a degree of concurrency of sentence. For the remaining offences, there is a degree of factual overlap between them, requiring a degree of concurrency of sentence.

4. [162]

   It is appropriate to take into account the offences on the Form One documents for both respondents, as each asked the sentencing judge to do. Consistent with the principles stated in Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518; and Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115; (2013) 231 A Crim R 413, there should be some increase in the sentences that will be imposed for the respective principal offences, to give weight to the need for personal deterrence, and to reflect the community’s entitlement to exact retribution for the crimes.

5. [163]

   The sentencing judge found that general deterrence had a lesser role to play with respect to MH, because of the dependent personality disorder her Honour accepted MH had.

6. [164]

   I cannot reach that conclusion on that basis. There is no reliable evidence that MH has such a condition. The diagnosis was made by a nurse clinician on the basis of MH’s self-serving assertions to Mr Knight as to LS’s domination of her. MH did not give evidence, and there was no other evidence capable of supporting her hearsay account. The observations of MH’s mother are insufficient to that end. The letters to LS in which she refers to a plan to have him take the blame for these crimes must cast further doubt on the veracity of her claims. MH’s portrayal of herself to others as a victim of LS’s abuse should be treated with considerable caution: R v Quatami [2001] NSWCCA 353; Imbornone v R [2017] NSWCCA 144.

7. [165]

   Further, Dr Furst, who is qualified to diagnose a psychiatric disorder, disputed the accuracy of Mr Knight’s opinion, and also disputed the appropriateness of the treatment plan he proposed for MH.

8. [166]

   Dr Furst concluded that MH suffered from post-natal depression. Although his opinion too was founded in MH’s self-report, and is to be treated with some caution thereby, there was some evidence from MH’s mother that could support it. On that basis I accept that MH suffered from that condition. I would maintain the finding of special circumstances made at first instance on that basis (with a very close approximation of the original ratio) and, given that Dr Furst thought MH’s depression contributed to her offending conduct, the applicability of general deterrence can be moderated, although not to any great extent.

9. [167]

   The observations of Simpson J (as her Honour then was) in R v Booth [2009] NSWCCA 89 at [39]–[44], although referring to possession of child pornography (as child abuse material was formerly known), and not to production and dissemination of such material, are apposite. Although the whole of the cited passage bears reading, her Honour said in part, at [40]:

10. [168]

    It was one that was “too readily dismissed from consideration” by the sentencing judge in MH’s case.

11. [169]

    The sentencing judge did not conclude that there was a basis to mitigate the application of the principle of general deterrence in LS’s case, a finding with which I concur.

12. [170]

    LS did, however, have the benefit of a finding of special circumstances in his favour, such that the NPP specified at first instance was only 37.5% of the head sentence. That ratio of minimum term to head sentence is unduly generous. Although the allowance made for special circumstances will remain a very generous one, the parole period can be no more than 50% of the total, as the minimum period of incarceration must reflect the applicant’s criminality, as well as his subjective case: R v Cramp [2004] NSWCCA 264 at [34]. That ratio gives appropriate recognition to LS’s health issues, and the difficulties he faced and will face in custody due to his cardiac condition.

13. [171]

    The respondents read some affidavit evidence in the event the Court moved to resentence.

14. [172]

    MH affirmed an affidavit on 15 June 2010. In it she said that, since entering custody, she has been held in protection and, because of that, has had some difficulty in accessing programmes to assist in her rehabilitation, although she has applied to undertake two relevant programmes that will assist her with a more positive lifestyle. She has been able to undertake some courses through the Chaplaincy at the prison.

15. [173]

    MH has been employed in custody, ordinarily from Monday to Friday inclusive. She has not incurred any prison infractions.

16. [174]

    She regards her health as having deteriorated, and she feels anxious, depressed, and has trouble sleeping. She worries that she will not be able to be admitted to parole in November, as she would have been under the sentence imposed in the District Court. She wishes to undertake the community based treatment plan devised for her by Mr Knight, and has considerable family support for the future.

17. [175]

    LS swore an affidavit on 10 June 2020. He deposed that he continues to have some issues with his heart, experiencing palpitations from time to time. He was taken to see Dr Cordina in March 2020 for a check-up, and has another appointment with her in September 2020. He has been prescribed a number of medications, which he takes regularly. He has asked to see a psychologist, and was seen, although he understood that to be connected with his application for parole.

18. [176]

    LS is held as a minimum security protection prisoner, and says that he has been threatened twice. His access to programmes is limited; to date he has attended some Alcoholics Anonymous meetings, but currently has no access to them. He feels isolated as a consequence of the restrictions relating to COVID-19, seeing family only by way of a weekly video conference.

19. [177]

    He has not worked, although he has applied for employment. He has been disciplined for a prison infraction.

20. [178]

    LS says that he has a great deal of family support and will live with family on his release.

21. [179]

    The sentences imposed upon the respondents will reflect a 25% discount to reflect the utilitarian value of the pleas of guilty, entered in the Local Court.

22. [180]

    The penalties imposed upon the pair will differ because MH is not charged with an offence which carries a maximum penalty of 10 years with a standard NPP of 8 years. Her corresponding crime carries a maximum penalty of 18 months.

23. [181]

    It is appropriate to impose aggregate sentences for each of LS and MH. Taking into account all of the subjective features of the case for LS and the case for MH, and having regard to the gravity of the offences, had I imposed individual sentences, they would have been as follows:

24. [182]

    For the offence of disseminating child abuse material, seq. 4, taking into account the offence of possessing child abuse material, seq. 5: 1 year and 10 months imprisonment (rounded down);

25. [183]

    For the offence of producing child abuse material, seq. 12, taking into account the offence of disseminating child abuse material, seq. 13: 2 years and 3 months imprisonment;

26. [184]

    For the offence of aggravated indecent assault, seq. 8, taking into account the offence of disseminating child abuse material, seq. 10: 6 years imprisonment, with a NPP of 3 years;

27. [185]

    For the offence of using a child under 14 years to produce child abuse material, seq. 3: 3 years and 9 months imprisonment, with a NPP of 1 year and 10 months.

28. [186]

    For the offence of possessing child abuse material, seq. 5, 1 year and 6 months imprisonment;

29. [187]

    For the offence of producing child abuse material, seq. 2, taking into account the offence of disseminating child abuse material, seq. 12: 2 years and 3 months imprisonment;

30. [188]

    For the offence of inciting an act of indecency, seq. 11, taking into account the offence of possessing child abuse material, seq. 10: 1 year and 4 months imprisonment;

31. [189]

    For the offence of consenting to the use of a child under 14 years to produce child abuse material, seq. 4: 3 years imprisonment with a NPP of 1 year and 9 months.

32. [190]

    I propose the following orders:

    1. (1)

       The Crown’s appeal against the aggregate sentence imposed upon LS is upheld;

    2. (2)

       The sentence imposed upon LS in the District Court on 6 March 2020 is quashed;

    3. (3)

       In lieu, LS is sentenced to an aggregate sentence of 7 years imprisonment, to date from 6 February 2019 and expiring on 5 February 2026, with a non-parole period of 3 years and 6 months, expiring on 5 August 2022.

    4. (4)

       The Crown’s appeal against the aggregate sentence imposed upon MH is upheld;

    5. (5)

       The sentence imposed upon MH in the District Court on 6 March 2020 is quashed;

    6. (6)

       In lieu, MH is sentenced to an aggregate sentence of 5 years imprisonment, to date from 6 February 2019 and expiring on 5 February 2024, with a non-parole period of 3 years, expiring on 5 February 2022.