Caulfield v The State of Western Australia [No 2]
[2011] WASCA 230
•24 OCTOBER 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CAULFIELD -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2011] WASCA 230
CORAM: McLURE P
MAZZA J
HEARD: 15 SEPTEMBER 2011
DELIVERED : 24 OCTOBER 2011
FILE NO/S: CACR 91 of 2011
BETWEEN: DANIEL MICHAEL CAULFIELD
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :O'NEAL DCJ
File No :IND 362 of 2011
Catchwords:
Criminal law - Application for leave to appeal against sentence - Distributing child exploitation material - Whether sentence was manifestly excessive
Legislation:
Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA), s 60, s 60(1), s 60(4)
Criminal Appeals Act 2004 (WA), s 27(2)
Criminal Code (WA), s 219, s 219(2)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: No appearance
Solicitors:
Appellant: Thames Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Chan v The Queen (1989) 38 A Crim R 337
Hill v The State of Western Australia [2009] WASCA 4
Smit v The State of Western Australia [2011] WASCA 124
Wilson v The State of Western Australia [2010] WASCA 82
McLURE P: I agree with Mazza J.
MAZZA J: This is an application for leave to appeal against sentence.
Background
The appellant pleaded guilty on the fast‑track system to one count of distributing child exploitation material, contrary to s 219(2) of the Criminal Code (WA). On 27 May 2011, O'Neal DCJ sentenced him to 16 months' immediate imprisonment with eligibility for parole.
The appellant seeks leave to appeal on two grounds. Ground 1 alleges that the sentence imposed by his Honour was manifestly excessive. It is said that his Honour should have made a suspended imprisonment order.
Ground 2 alleges that his Honour erred by stating, in effect, that the appellant's psychologist, Mr Peter Dunlop, had not seen the appellant's video record of interview with the police, when in fact he had seen the interview.
Leave can only be granted on a ground of appeal if the court is satisfied that the ground has a reasonable prospect of success: s 27(2) of the Criminal Appeals Act 2004 (WA).
The legal principles which must be applied to appeals against sentence are set out in Wilson v The State of Western Australia [2010] WASCA 82 [2]. They do not require repetition here.
The circumstances of the appellant's offending are as follows. Late on the evening of 2 October 2010 and into the early hours of 3 October 2010, the appellant was chatting, via a mobile phone instant message service, with an adult female. Parts of the chat log are quoted in his Honour's sentencing remarks. What is clear from this material, is that the appellant, in very explicit terms, conveyed to the woman that he had a sexual interest in young children. It was apparent that he was seeking out someone with whom he might share this interest. Having ascertained that the woman may be of a like mind, he sent six images of child exploitation material to her mobile phone.
The images were described by the sentencing judge as 'disturbing, to say the least' (ts 36). The children depicted in the images ranged in age from approximately 3 to 8 years (ts 9). The children were pictured in acts of sexual penetration (ts 36) and other degrading sexual behaviour, that included a masked girl with two adult penises ejaculating near her face
with the words 'fuck me' written on her chest (ts 10). The images were transmitted with subject lines such as 'six‑year‑old blow dad' (ts 9) and 'Mum with little boys' (ts 10).
The woman reported the matter to the police, who on 22 November 2010 arrested the appellant and interviewed him. The appellant initially denied the offence, although later he admitted ownership of the mobile phone from which the images were sent.
The appellant's antecedents
His Honour had before him a considerable amount of material about the appellant, including a pre‑sentence report, two court‑ordered psychological reports from Ms Mary‑Anne Martin, the report from Mr Dunlop dated 25 May 2011 and a letter from the appellant's parents.
At the time he was sentenced, the appellant was 33 years of age. He had no record of offending and his antecedents were described by his Honour as 'good' (ts 35, 42). The appellant encountered certain difficulties in his childhood which are set out in the material I have referred to. There is no need to detail those difficulties in these reasons. His Honour accepted the opinions of the psychologists that the appellant suffers from a number of conditions, including major depression, post‑traumatic stress disorder and acute anxiety. However, there is no suggestion that the appellant's offending was due to any psychiatric or psychological condition (ts 34).
After his arrest, the appellant sought treatment from Mr Dunlop, who saw him on 22 occasions, mainly for psychotherapy.
The appellant's parents were strongly supportive of him.
On the material before his Honour, the appellant was not assessed as being of a high risk of re‑offending (ts 42).
His Honour's sentencing remarks
His Honour found that, unless it was objectively verified, he was unable to rely on anything that the appellant had said about his offending, either through his counsel, to the community corrections officer who prepared the pre‑sentence report, or to the two psychologists, Ms Martin and Mr Dunlop. Thus, he did not accept the submissions put on the appellant's behalf by his counsel that the offence was an isolated one, prompted by troubles in his relationship with his partner and the consumption of alcohol and drugs (ts 31).
His Honour took into account, as mitigating factors, the appellant's fast‑track plea of guilty, his good antecedents, his history of psychological issues, the support of his parents and the programme of psychotherapy he had undertaken. His Honour recognised that a term of immediate imprisonment would weigh more heavily upon him than most.
His Honour acknowledged that the offence was not a victimless crime and that significant weight had to be given to general deterrence.
Although there were a small number of images, his Honour characterised the offence as serious. He noted the nature of the images and the manner and purpose of their distribution.
His Honour considered that no other sentence, apart from imprisonment, was appropriate. He then considered whether the term should be suspended. He looked again at all the relevant circumstances to see whether it was appropriate to suspend the sentence. In the end, given the nature and gravity of the offending, his Honour found that suspension was not appropriate.
Ground 2
It is convenient to deal with ground 2 first.
Mr Dunlop, in his report dated 25 May 2011 at page 1, detailed the information upon which he reached his opinions. That information comprised:
(a)22 occasions upon which he met with the appellant, 16 of which were for the purposes of psychotherapy and six of which were 'directed at clarifying information relevant to [the] report';
(b)a telephone interview with the appellant's mother and a face‑to‑face interview with his father;
(c)the statement of material facts prepared by the police;
(d)the DVD and transcript of the appellant's video record of interview on 22 November 2010;
(e)a transcript of the chat log between the appellant and the woman; and
(f)a letter sent to his Honour from the appellant's parents.
Mr Dunlop described in the report, in some detail, the circumstances of the offence: Dunlop report, 25 May 2011, pages 7 ‑ 8. That description is based in large part on what the appellant told him.
The appellant told Mr Dunlop 'I was drugged out of my mind and … I didn't know what I was doing'. Mr Dunlop apparently accepted this explanation. Mr Dunlop said:
Further probing [of the appellant] suggested that him [sic] following down that path way of fantasies about incestuous relationships and sex with children was prompted by him having come across the images of child pornography for the first time and was high on drugs him allowing his imagination to explore these ideas without a proper appreciation of how abhorrent they were: Dunlop report, 25 May 2011, page 7.
One of Mr Dunlop's conclusions was that the 'fantasies' contained in the chat log were a regression by the appellant to childlike ways caused by extreme stress. This conclusion was based 'on the information available to me'. That information included the appellant's account of his offending.
Mr Watters, counsel for the appellant, submitted that the error upon which ground 2 is based is evident from the following exchange which occurred in defence counsel's plea in mitigation:
O'NEAL DCJ: But the troubling aspect of this is that - and I've seen the explanation that he has offered to Mr Dunlop and to his parents for the offending, about intoxication, and I've seen other things that he's said. One of the things that I have difficulty with in accepting that for whatever mitigation it might offer - at least in the sense that he describes this as a spontaneous kind of offending - is that it relies on an acceptance of what he said to those people and, of course, a reliance on what he said to you by way of instructions.
SUTHERLAND, MR: Yes.
O'NEAL DCJ: And you've referred to the evasions in the video record of interview, I have to say that - and of course, I've had access to all of this material, which the psychologist didn't - the thing that troubled me was the extent to which he seemed to lie with alacrity (ts 12 ‑ 13). (emphasis added)
Mr Watters submitted that his Honour's statement 'I've had access to all of this material, which the psychologist didn't' means, having just referred to the video‑taped record of interview, that his Honour mistakenly believed that Mr Dunlop had not seen the interview and was not aware of his '[false] denials'.
I do not accept that his Honour's statement has this meaning, nor do I accept that his Honour made the alleged mistake. His Honour's use of the words 'all of this material' plainly conveys a broader range of material than just the video record of interview. The reality was his Honour had before him information about the appellant that Mr Dunlop did not have. For example, unlike his Honour, Mr Dunlop did not have the two reports from Ms Martin, one of which stated that the appellant minimised his role in the offence during her interview with him. Further, Mr Dunlop did not have the pre‑sentence report.
In context, his Honour was pointing out to defence counsel that having considered all of the material, including material that Mr Dunlop did not have, he had difficulty accepting the version of offending the appellant had given to Mr Dunlop and others, including defence counsel.
His Honour was right to air his concern because it gave defence counsel the opportunity to deal with it. If his Honour concluded (as he ultimately did) that he was unable to accept the appellant's account of his offending, that conclusion gave rise to potentially adverse consequences for the appellant with respect to his Honour's assessment of Mr Dunlop's opinions and the level of the appellant's criminality.
His Honour made this clear in this exchange:
O'NEAL DCJ: … I'm looking at the offence for which he's to be sentenced - - -
SUTHERLAND, MR: Yes.
O'NEAL DCJ: - - - and assessing the circumstances relevant to that. But what the psychologists tell me depends on, to a considerable extent, particularly in the case of … Mr Dunlop, because of the therapeutic relationship, an acceptance of what they're being told by [the appellant].
SUTHERLAND, MR: Yes (ts 14).
Even if his Honour had made the error alleged, it did not give rise to a miscarriage of justice because it does not call into question his Honour's negative assessment of the appellant's credibility. This is underlined by the fact that the appellant does not challenge the correctness of that assessment in this appeal.
Ground 2 has no merit.
Ground 1 - Manifest excess
The criteria by which an allegation of manifest excess is to be judged are:
(a)the maximum penalty for the particular offence;
(b)the standards of sentencing customarily observed with respect to that offence;
(c)the place which the criminal conduct occupies in the scale of seriousness of offending of the type in question; and
(d)the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.
Section 219 of the Criminal Code commenced operation on 28 August 2010. It replaced s 60 of the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA) (the Act). The maximum penalty for an offence contrary to s 219(2) of the Criminal Code is 10 years' imprisonment as compared with 7 years under its statutory predecessor, s 60(1) of the Act. In his second reading speech with respect to the Bill which made these changes, the Attorney General, the Hon CC Porter, emphasised that the changes were designed to make it 'absolutely clear that the production, possession and dissemination of this material will not be tolerated': Western Australia, Parliamentary Debates, Legislative Assembly, 21 April 2010, 1934b (Mr CC Porter, Attorney General).
There have been no cases decided at appellate level with respect to an offence under s 219(2) of the Criminal Code. However, there were many cases in relation to the lesser offence of possession of child pornography, contrary to s 60(4) of the Act, which carried a maximum penalty of 5 years' imprisonment.
The general principles applicable to that offence apply to offences under s 219(2) of the Criminal Code. Consequently, a sentence of immediate imprisonment will, as a matter of fact, be ordinarily imposed for such an offence. This is because the possession and distribution of child pornography is not a victimless crime. The willingness of offenders to possess this material stimulates its production. In doing so, incalculable harm is done to the children involved: Hill v The State of Western Australia [2009] WASCA 4 [28]. To distribute the material widens the market, with the obvious potential of increasing its demand and thereby its production. Sentences imposed for the offence of possession of child pornography since 1997 range from 8 months' imprisonment to 2 years: Smit v The State of Western Australia [2011] WASCA 124 [24].
Although in the present case the number of images is small, that is not the only matter to be considered in judging the seriousness of the appellant's offending. The level of degradation shown in the images is high. It cannot be overlooked that the appellant did not just have the material. He chose to distribute it in the quest for his own sexual gratification. The offence was deliberate and not impulsive. Moreover, it is not the kind of offence which is easy to detect.
The appellant's counsel, in oral submissions, emphasised that in addition to the small number of images, the distribution was to an adult, not a child. While it would have been worse if the distribution had been to a child, that does not make the distribution to an adult mitigatory. Moreover, his exchange with the adult confirmed that his sexual interest in children was not confined to viewing or distributing child pornography. His Honour's characterisation of the appellant's offending as serious, was correct.
I have already set out the appellant's antecedents. The appellant's good antecedents are not an uncommon feature in this kind of offending. His antecedents are relevant, but their importance is diminished by the need to provide general deterrence as a means of protecting children.
Counsel argued that the imposition of a suspended term of imprisonment was appropriate, in order to enhance the appellant's prospects of rehabilitation. Assuming this to be so, it is not the only sentencing consideration. Here, the seriousness of the offending, coupled with general deterrence, was such that a suspended imprisonment order was not appropriate.
For these reasons, I have not been persuaded that the sentence imposed upon the appellant was manifestly excessive. The ground has no reasonable prospect of success.
Conclusion
Neither proposed ground of appeal has a reasonable prospect of success. Leave to appeal is refused and the appeal is dismissed.
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