ADP v The State of Western Australia - [2018] WASCA 40

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   ADP -v- THE STATE OF WESTERN AUSTRALIA [2018] WASCA 40
CORAM:   BUSS P
MAZZA JA

HEARD:   20 DECEMBER 2017
DELIVERED          :   27 MARCH 2018
FILE NO/S:   CACR 162 of 2017
BETWEEN:   ADP
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   STAUDE DCJ
File Number            :   IND 1581 of 2016

Catchwords:

Criminal law - Appeal against sentence - Appellant convicted of using a carriage service to transmit child pornography material; using a carriage service in a way that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive; and possession of child pornography - Pleas of guilty - Total effective sentence of 3 years' immediate imprisonment with the appellant being required to serve 2 years in custody before release on a recognisance release order - Whether total effective sentence infringed the totality principle - Whether additional evidence, not before the sentencing judge, required the imposition of a different sentence

Legislation:

Crimes Act 1914 (Cth), s 4B, s 16A, s 17A
Criminal Appeals Act 2004 (WA), s 39, s 40(1)(e)
Criminal Code (Cth), s 474.17(1), s 474.19
Criminal Code (WA), s 220
Sentencing Act 1995 (WA), s 6, s 39

Result:

Application filed on 15 November 2017 for leave to adduce additional evidence in the appeal dismissed
Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	No appearance

Solicitors:

Appellant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

AH v The State of Western Australia [2014] WASCA 228; (2014) 247 A Crim R 34
Director of Public Prosecutions (Cth) v D'Alessandro [2010] VSCA 60; (2010) 26 VR 477
Director of Public Prosecutions (Cth) v Garside [2016] VSCA 74; (2016) 50 VR 800
Director of Public Prosecutions (Cth) v Haynes [2017] VSCA 79
Director of Public Prosecutions (Cth) v Watson [2016] VSCA 73; (2016) 259 A Crim R 327
D'Rozario v The State of Western Australia [2015] WASCA 171
Gaskell v The State of Western Australia [2018] WASCA 8
Giglia v The State of Western Australia [2010] WASCA 9
JAW v The State of Western Australia [2016] WASCA 40
Lewsam v The State of Western Australia [2016] WASCA 60
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
R v Dundas [2017] QCA 107
R v Hampson [2011] QCA 132
R v Host [2015] WASCA 23; (2015) 248 A Crim R 352
R v Martin [2014] NSWCCA 283; (2014) 246 A Crim R 477
R v Tahiraj [2014] QCA 353
Roffey v The State of Western Australia [2007] WASCA 246
Shelley v The State of Western Australia [2014] WASCA 154
Taylor v The Queen [2015] TASCCA 7
The State of Western Australia v Hyder [2011] WASCA 256
The State of Western Australia v McCarthy [2014] WASCA 210; (2014) 246 A Crim R 86
Wheeler v The Queen [No 2] [2010] WASCA 105

JUDGMENT OF THE COURT: The appellant has applied for leave to appeal against sentence.
The appellant was convicted in the District Court, on his pleas of guilty, of three counts in an indictment.
Count 1 alleged that between 15 April 2010 and 17 March 2016, at specified places in New South Wales, Queensland and Western Australia, the appellant used a carriage service to transmit child pornography material, contrary to s 474.19 of the Criminal Code (Cth) (the Commonwealth Code).
Count 2 alleges that between the same dates and at the same places as in count 1, the appellant used a carriage service in a way that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive, contrary to s 474.17(1) of the Commonwealth Code.
Count 3 alleges that on 17 March 2016, at a specified place in Western Australia, the appellant had in his possession child pornography, in the form of 127 images and five videos, contrary to s 220 of the Criminal Code (WA) (the State Code).
On 25 July 2017, Staude DCJ imposed individual sentences of immediate imprisonment as follows:
(a)count 1: 18 months;
(b)count 2: 2 years 6 months; and
(c)count 3: 12 months.
His Honour ordered that the sentence for count 3 commence on 25 July 2017 and that the sentences for counts 1 and 2 commence on 25 January 2018. His Honour also ordered that the appellant be released at the expiration of 18 months from the commencement of the sentence for count 2 upon the appellant entering into a recognisance in the sum of $1,000 to be of good behaviour for the balance of the term imposed for count 2.
The total effective sentence was therefore 3 years' immediate imprisonment with the appellant to be released upon having served 2 years in custody.
We would refuse leave to appeal and dismiss the appeal. Our reasons are as follows.

The facts and circumstances of the offending

The appellant was born on 27 July 1963. He was aged between 46 and 52 at the time of the offending and was 53 when sentenced.
The appellant was previously married to GM. They had two daughters, namely C and E. C was born in 1998 and E in 2001.
In early 2010 the appellant and GM separated. They had been married for 13 years. After the separation C and E lived with GM.
As to count 1:
(a)Between 15 April 2010 and 21 November 2014, the appellant created false profiles of a woman purporting to be GM and posted those profiles on various dating websites. The appellant used photographs of GM, including intimate photographs of her taken when they were together, and GM's personal particulars, including where she was living, in creating the profiles.
(b)One of the false profiles stated that the woman the subject of the profile was a divorced mother with teenage children.
(c)GM did not consent to the creation of the profiles or the use of her photographs. She did not know that the false profiles had been created until some time later.
(d)The appellant used the false profiles to engage in online communications with unknown persons who were also using the dating websites.
(e)The appellant's communication with other users in respect of six of the false profiles involved sexually explicit descriptions of the woman's daughters. The appellant made statements to the effect that the daughters were under the age of 18 years, were involved in sexual activity with adult males and were available for sexual activity with other adult males. The sexual activity was said to include oral, digital/vaginal and penile/vaginal sex. The appellant also gave explicit descriptions of sexual activity between adult males and the daughters and between the woman and the daughters.
(f)In some of the false profiles, the appellant stated that the woman also had a son under the age of 18 years who was interested in and available for sexual activity. There were explicit descriptions of sexual activity between the woman and the son.
(g)It is unnecessary to recount in greater detail the precise language used by the appellant.
(h)The offending involved overwhelmingly the use of language rather than images.
As to count 2:
(a)As we have mentioned, the false profiles created by the appellant contained personal details relating to GM, including where she was living, and intimate photographs taken when the appellant and GM were together.
(b)The profiles stated that the woman was available for sexual encounters and described the type of sex she preferred.
(c)The appellant engaged in sexually explicit communications with other users of the dating websites. He stated that the woman was interested in having sex with more than one male simultaneously and with a male and a female simultaneously. The appellant also stated that the woman was interested in anal sex, group sex, oral sex, bondage and having pain inflicted during sex.
(d)GM was unaware that the appellant had created the profiles until she was approached by men she did not know. The men told her that she had been communicating with them on the dating websites.
(e)On 16 February 2010, the appellant created the false profile 'grozy 69' on a dating website. The false profile included a photograph of GM's breasts and details of GM's hair colour, height and weight. The profile stated (as was the fact with GM) that the woman the subject of the profile had recently separated and had moved to a specified city in Queensland. The profile also stated the type of sex the woman allegedly preferred. In May 2010, GM became aware of the false profile when she was informed of the profile's existence by her neighbour. GM was distressed by what she saw on the website. She reported the matter to the police and the false profile was removed.
(f)On 21 November 2014, the appellant created another false profile 'dana 469' on a dating website. The woman the subject of the profile was said to be a divorced mother of two teenage girls, aged 13 and 16 years, who was living in a specified town in Victoria. The appellant used photographs of GM, including intimate photographs, in creating the profile. Between 21 November 2014 and 4 January 2015, the appellant, masquerading as the woman the subject of the false profile, entered into web‑based communications with unknown users. The appellant told the users that the woman worked in a pharmacy in the specified town. At the material time, GM in fact worked at one of the two pharmacies operating in the specified town. That fact, together with the photographs of GM on the profile, enabled users of the website to locate her.
(g)On 23 February 2015, GM was at work in the pharmacy in the specified town. She was approached by an unknown man who called her by the name 'Dana', being the name given to the woman the subject of the false profile 'dana 469'. He asked GM whether she recognised him. The man told GM that they had been talking together for a couple of weeks on the dating website. GM told the man that she was not the person he was describing. The man insisted that she was. He said he recognised her from her profile on the dating website, that she lived in the town and that she had two daughters aged 13 and 16. The man then showed the profile on the dating website to GM. She was distressed by what she saw, namely that she was purportedly interested in sexual encounters with unknown persons. GM reported the matter to the police.
(h)On 9 April 2015, GM was at work in the pharmacy in the specified town. She was approached by an unknown man who called her by the name 'Dana'. The man said he recognised GM because he had seen her face a hundred times. He insisted that she knew him. GM told the man he was mistaken. She went to the rear of the pharmacy to escape from him. GM reported the matter to the police.
(i)On 28 May 2015, GM was at work in the pharmacy in the specified town. As she left the pharmacy at lunchtime, she was followed by an unknown man. The man followed GM into a bakery. He asked her if he could take 'that picture of her', while nodding his head and showing her his iPad. GM told the man she did not know what he was talking about. The man continued nodding his head and asking if he could take 'that picture'. GM told the man he was not to take any pictures. The man then called her by the name 'Dana' and asked if she was saying 'no' to him. GM reported the matter to the police.
(j)As a result of the interactions with the unknown men, GM became fearful for her personal safety and that of her daughters. She became anxious about going to work and being in public places.
As to count 3:
(a)In May 2010, after GM had made complaints to the police about the incidents the subject of count 2, Queensland police began an investigation into the false profiles created by the appellant.
(b)The investigations continued until the beginning of 2016. At that time, Telstra Broadband identified the IP address for 'dana 469'. After further investigations, police were able to locate the appellant who was then living in a town in Western Australia.
(c)On 17 March 2016, police executed a search warrant at the appellant's home in the Western Australian town. The police seized computer equipment, including a laptop, and storage devices.
(d)Child exploitation material was found on the seized computer equipment and storage devices. The material comprised 127 images and five videos as follows:
(i)Category 1: 90 images depicting children under the age of 16 years in sexual or indecent poses, either naked or semi naked.
(ii)Category 2: 18 images depicting children under the age of 16 years engaged in penetrative and non penetrative sexual activity with other children.
(iii)Category 3: three images and one video depicting children under the age of 16 years engaged in non penetrative sexual activity with adults.
(iv)Category 4: 13 images and four videos depicting children under the age of 16 years engaged in penetrative sexual activity with adults.
(v)Category 6: three animated images of children in sexual poses or engaged in sexual activity.

The sentencing judge's sentencing remarks and the appellant's personal circumstances and antecedents

The sentencing judge set out in his sentencing remarks the facts and circumstances of the offending.
His Honour said that the offending on counts 1 and 2 was aggravated by the sinister and cynical manner in which the appellant made his family members the subject of the material and, also, the depravity of the content. The appellant committed counts 1 and 2 while his daughters, C and E, were in their formative years. Counts 1 and 2 formed part of a course of conduct intended to denigrate GM and the children over an extended period.
The sentencing judge referred to victim impact statements from GM and C. His Honour also referred to a report dated 1 October 2016 from Dr Ian Haywood, a psychiatrist, in relation to C. C's mental health and emotional well being had been profoundly affected by the offending.
His Honour said that there was no evidence of the appellant's contrition other than his pleas of guilty. The appellant's prospects of rehabilitation were uncertain. The persistence with which the appellant offended suggested that his behaviour became entrenched during the period in which the offences were committed. The extent to which his behaviour might be addressed through programmes was unknown.
The sentencing judge accepted that there was some mitigation in the appellant's personal circumstances and antecedents. The appellant did not have a relevant prior criminal record. He had studied psychology, sociology and economics at university and held a post graduate qualification in law. The appellant was a certified practising accountant. He had been employed as a corporate services manager with a health services provider.

The grounds of appeal

The appellant relies on two grounds of appeal.
Ground 1 alleges, in essence, that the total effective sentence of 3 years' immediate imprisonment, with the appellant to be released upon having served 2 years in custody, infringed the first limb of the totality principle.
Ground 2 alleges that additional evidence, not before the sentencing judge, 'supports the imposition of a lesser sentence upon the appellant'.

The merits of ground 1

The appellant submitted that the total effective sentence of 3 years' immediate imprisonment, with the appellant being required to serve 2 years in custody before release on a recognisance release order, was disproportionate to the total criminality involved in the offending having regard, in particular, to 'the commonality involved in the three offences, his pleas of guilty, his personal circumstances and sentencing standards'. The appellant emphasised that, in his submission, 'all of the offences relate to one course of conduct and … therefore all of the sentences … should operate entirely concurrently with each other'.
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
The practical effect of the totality principle is ordinarily to arrive at a total effective sentence which is less than that which would have been arrived at merely by adding up all of the terms appropriate for the individual sentences. See Roffey v The State of Western Australia.[1] Also, the severity or leniency of an individual sentence (which is not manifestly excessive or manifestly inadequate) is relevant in evaluating whether the total effective sentence infringes the first limb of the totality principle. See Giglia v The State of Western Australia;[2] Gaskell v The State of Western Australia.[3]
[1] Roffey v The State of Western Australia [2007] WASCA 246 [26] (McLure JA; Steytler P & Miller JA agreeing).
[2] Giglia v The State of Western Australia [2010] WASCA 9 [40] (Owen JA; McLure P & Pullin JA agreeing).
[3] Gaskell v The State of Western Australia [2018] WASCA 8 [54] - [59] (Buss P), [151] (Mazza & Beech JJA).
The guidance afforded by comparable cases is flexible rather than rigid. The mere fact a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried. A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether a sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
When an appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
The discretion conferred on sentencing judges is, of course, of fundamental importance. This court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. See Lowndes v The Queen.[4]
[4] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).
At the material time, the maximum penalty for:
(a)the offence created by s 474.19 of the Commonwealth Code was 15 years' imprisonment or 900 penalty units or both (count 1);
(b)the offence created by s 474.17(1) of the Commonwealth Code was 3 years' imprisonment or 180 penalty units or both (count 2); and
(c)the offence created by s 220 of the State Code was 7 years' imprisonment (count 3).
The pecuniary penalties for the offences under the Commonwealth Code are imposed by s 4B of the Crimes Act 1914 (Cth).
As to the federal offences charged in counts 1 and 2, by s 16A(1) of the Crimes Act, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. By s 16A(2), in addition to any other matters, the court must take into account such of the matters specified in the subsection as are relevant and known to the court.

Section 17A(1) of the Crimes Act provides that a court shall not pass a sentence of imprisonment on any person for a federal offence unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.
The principles relating to the fixing of recognisance release orders for federal offences are referred to in Buss JA's reasons in R v Host.[5]
[5] R v Host [2015] WASCA 23; (2015) 248 A Crim R 352 [172] - [177].
As to the State offence charged in count 3, the sentencing judge was obliged to sentence the appellant in accordance with the sentencing principles set out in pt 2 div 1 of the Sentencing Act 1995 (WA).
Section 6(4) of the Sentencing Act provides that a court must not impose a sentence of imprisonment on an offender unless it decides that the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it. See also s 39(3) of the Act.
The range of sentences which have been imposed for the offence created by s 474.19 of the Commonwealth Code is apparent from Director of Public Prosecutions (Cth) v D'Alessandro;[6] R v Martin;[7] R v Tahiraj;[8] Taylor v The Queen;[9] Director of Public Prosecutions (Cth) v Garside[10]; R v Dundas;[11] and the cases referred to in those decisions.
[6] Director of Public Prosecutions (Cth) v D'Alessandro [2010] VSCA 60; (2010) 26 VR 477.
[7] R v Martin [2014] NSWCCA 283; (2014) 246 A Crim R 477.
[8] R v Tahiraj [2014] QCA 353.
[9] Taylor v The Queen [2015] TASCCA 7.
[10] Director of Public Prosecutions (Cth) v Garside [2016] VSCA 74; (2016) 50 VR 800.
[11]R v Dundas [2017] QCA 107.
The range of sentences which have been imposed for the offence created by s 474.17(1) of the Commonwealth Code is apparent from R v Hampson;[12] Director of Public Prosecutions (Cth) v Watson;[13] Director of Public Prosecutions (Cth) v Haynes;[14] and the cases referred to in those decisions.
[12] R v Hampson [2011] QCA 132.
[13]Director of Public Prosecutions (Cth) v Watson [2016] VSCA 73; (2016) 259 A Crim R 327.
[14] Director of Public Prosecutions (Cth) v Haynes [2017] VSCA 79.
The range of sentences which have been imposed for the offence created by s 220 of the State Code is apparent from Shelley v The State of Western Australia;[15] The State of Western Australia v McCarthy;[16] D'Rozario v The State of Western Australia;[17] JAW v The State of Western Australia;[18] Lewsam v The State of Western Australia;[19] and the cases referred to in those decisions.
[15] Shelley v The State of Western Australia [2014] WASCA 154.
[16] The State of Western Australia v McCarthy [2014] WASCA 210; (2014) 246 A Crim R 86.
[17] D'Rozario v The State of Western Australia [2015] WASCA 171.
[18] JAW v The State of Western Australia [2016] WASCA 40.
[19] Lewsam v The State of Western Australia [2016] WASCA 60.
We have also considered other cases cited by the appellant.
It is unnecessary to reproduce the facts and circumstances of the prior cases we have considered or the sentencing outcomes. There are some comparable features between some of the prior cases, on the one hand, and the present case on the other, but there are also distinguishing features.
In our opinion, the appellant's overall offending was serious. We refer, in particular, to the following:
(a)The duration of the offences the subject of counts 1 and 2.
(b)The premeditation and planning involved in the offending.
(c)The gross breach of trust in the appellant's use of intimate photographs of GM obtained during their marriage.
(d)The gross breach of trust in the appellant's sexualisation of his teenage daughters on the internet.
(e)The gross invasion of privacy in the appellant's creation of a record on the internet which the complainants are mostly unlikely to be able to erase.
(f)The fact that sufficient information was provided in the profiles to enable unknown men to contact GM at her work place.
(g)The significant impact of the offending on the complainants.
(h)The appellant's apparent motive for the offending, namely acrimony towards GM and their daughters.
There were some mitigating factors. In particular, the appellant's good antecedents (including the absence of a relevant prior criminal record) and his pleas of guilty made at the earliest reasonable opportunity.
The sentencing judge was plainly entitled to be satisfied, after having considered all other available sentencing options, that the only appropriate sentence for each offence was a term of imprisonment to be served immediately.
There was some overlap between the offences charged in counts 1 and 2. The sentencing judge recognised the overlap by ordering that the sentences for count 1 and 2 commenced on 25 January 2018; that is, his Honour ordered in effect that the sentences for counts 1 and 2 be served concurrently.
The offence charged in count 3 was separate and distinct from the offences charged in counts 1 and 2. The offending the subject of count 3 did not relate to the same course of conduct as the offending the subject of counts 1 and 2. It was necessary, in order properly to mark the seriousness of the appellant's overall offending, for there to be some accumulation between the sentences for counts 1 and 2, on the one hand, and the sentence for count 3, on the other. His Honour gave effect to that necessity by ordering that the sentence for count 3 commence 6 months before the commencement of the sentences for counts 1 and 2.
We are satisfied, after evaluating and weighing all relevant facts and circumstances (including the sentencing judge's unchallenged findings of fact) and all relevant sentencing factors (including, in the case of counts 1 and 2, such of the matters set out in s 16A(2) of the Crimes Act as were relevant and known to the court and, in the case of count 3, the sentencing principles set out in pt 2 div 1 of the Sentencing Act) in the context of:
(a)the applicable statutory sentencing frameworks (including the principles relating to the fixing of recognisance release orders for federal offences);
(b)the maximum penalties for counts 1, 2 and 3;
(c)the serious nature of the offending, viewed as a whole;
(d)the total effective sentences imposed in previous cases with at least some features comparable to the appellant's overall offending;
(e)the place which the appellant's overall criminal conduct occupies on the scale of seriousness of offences of this kind;
(f)the appellant's personal circumstances and antecedents; and
(g)the appellant's pleas of guilty at the earliest reasonable opportunity and the other matters of mitigation referred to by his Honour,
that the total effective sentence of 3 years' immediate imprisonment, with the appellant to be released upon having served 2 years in custody, was not unreasonable or plainly unjust.
The total effective sentence bears a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the appellant personally, and the total effective sentences imposed in reasonably comparable cases.
It is not reasonably arguable that error by his Honour in the exercise of his discretion should be inferred, based on the first limb of the totality principle, from the sentencing outcome.
Finally, in the context of ground 1, we note for completeness that, in our opinion, none of the individual sentences of imprisonment imposed on the appellant is manifestly excessive. That is, after taking into account the maximum penalty for each offence; the serious nature of each offence; the objective facts and circumstances of each offence; the standards of sentencing customarily observed; the appellant's personal circumstances; all mitigating factors referred to by his Honour; and all other relevant sentencing considerations, we are satisfied that none of the individual sentences was unreasonable or plainly unjust.
Ground 1 is without merit.

The merits of ground 2

By an application in the appeal filed on 15 November 2017, the appellant applied for leave to adduce additional evidence in the appeal pursuant to s 40(1)(e) of the Criminal Appeals Act2004 (WA). The application was supported by the appellant's affidavit sworn 9 November 2017. The proposed additional evidence comprises a report dated 30 November 2016 from Dr John Roberts, a consultant forensic psychiatrist.
The appellant, who was self‑represented, submitted that Dr Roberts' report showed that at the time of the offending he was mentally impaired by depression. It was submitted that the depression was mitigating because it adversely affected the appellant's judgment at the relevant time.
In his report Dr Roberts said that on 10 November 2016 he had interviewed the appellant in connection with the offending. Dr Roberts made numerous comments and observations in his report, including the following:
(a)The appellant said his wife had developed a relationship with a co‑worker.
(b)The appellant said he was not attracted to children and, in fact, he dislikes and cannot cope with children.
(c)The appellant told Dr Roberts that his offending was 'a pay‑back for my ex without physically harming her'.
(d)According to Dr Roberts, the appellant 'presented in terms of his mood and affect in a manner consistent with a degree of depression'. The appellant would qualify for the diagnosis of a 'persistent depressive disorder based on his history'. Dr Roberts added that 'such a propensity towards depression appears to have been present for approximately five years'. This disorder is characterised by persistent mild to moderate depression.
(e)Dr Roberts said the appellant has a history of relationship problems and substance abuse.
(f)Dr Roberts commented that the appellant's hostility towards GM and their children raised concern.
(g)The appellant emphasised to Dr Roberts that his prime interest in relation to the offending was 'to revenge himself on his wife and daughters'.
(h)Dr Roberts said he was concerned about the appellant's level of aggression that gave rise to the offending and he strongly recommended that the appellant receive ongoing psychiatric and psychological treatment. The treatment should monitor any risk of the appellant acting on his aggressive feelings towards GM and their daughters with a view to ensuring that the victims not be placed at future risk.
(i)Dr Roberts also recommended that the appellant be referred to a psychiatrist with experience in the treatment of mood disorders and inappropriate behaviour of a sexual nature. A trial of antidepressant medication would tend to improve the appellant's mood and diminish 'obsessionality and potentially modify [the appellant's] predisposition to … obsess in regard to the ending of his marriage and what he perceived as the inappropriate behaviour towards him as exhibited by [GM and their daughters]'.
Section 39(1) of the Criminal Appeals Act provides that an appeal court must decide an appeal on the evidence and material that were before the lower court. However, s 39(3) provides that s 39(1) does not affect the power of an appeal court in s 40 to admit evidence. Section 40(1)(e) provides that, for the purposes of dealing with an appeal, an appeal court may admit any other evidence. The power in s 40(1)(e) should be exercised, in the context of an appeal against sentence, when, relevantly, had the additional evidence been before the sentencing judge, a different sentence should have been imposed. See Wheeler v The Queen [No 2];[20] The State of Western Australia v Hyder;[21] AH v The State of Western Australia.[22]
[20] Wheeler v The Queen [No 2] [2010] WASCA 105 [3] (McLure P), [53] (Owen JA).
[21] The State of Western Australia v Hyder [2011] WASCA 256 [25] (McLure P; Buss JA & Mazza J agreeing).
[22] AH v The State of Western Australia [2014] WASCA 228; (2014) 247 A Crim R 34 [94], [123] - [124] (Martin CJ, Mazza JA & Hall J).
We are satisfied, after reading and considering Dr Roberts' report as a whole, that the information in the report does not materially advance the appellant's case in the appeal. In particular, we are satisfied that Dr Roberts' views as to the appellant's 'propensity towards depression' at the relevant time, based on the appellant's history, was not a significant mitigating factor in the context of the facts and circumstances of the offending and the other relevant sentencing factors. In our opinion, had the additional evidence been before the sentencing judge, different individual sentences and a different total effective sentence should not have been imposed.
Ground 2 is without merit.

Conclusion

The application filed on 15 November 2017 for leave to adduce additional evidence in the appeal should be dismissed.
Neither ground 1 nor ground 2 has a reasonable prospect of success. Leave to appeal should be refused.
The appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DR
RESEARCH ASSOCIATE TO BUSS P
27 MARCH 2018