CDL v The State of Western Australia
[2022] WASCA 18
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CDL -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 18
CORAM: BUSS P
MAZZA JA
HEARD: 15 OCTOBER 2021
DELIVERED : 18 FEBRUARY 2022
FILE NO/S: CACR 100 of 2021
BETWEEN: CDL
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: DAVIS DCJ
File Number : IND 533 of 2018
Catchwords:
Criminal law - Application for leave to appeal against sentence - Appellant convicted of three counts of persistently engaging in sexual conduct with a child under 16 years, five counts of producing child exploitation material, and one count of possessing child exploitation material - Four victims - Whether total effective sentence of 12 years 6 months' imprisonment infringed the first limb of the totality principle - Whether sentencing judge made express errors of fact and law
Legislation:
Criminal Code (WA), s 321A, s 218, s 220
Sentencing Act 1995 (WA), s 9AA, s 15
Result:
Application for an extension of time is refused
Leave to appeal refused on all grounds
Appeal dismissed
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):
Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372
JYL v The State of Western Australia [2021] WASCA 222
R v Dodd (1991) 57 A Crim R 349
R v Holder [1983] 3 NSWLR 245; (1983) 13 A Crim R 375
Roffey v The State of Western Australia [2007] WASCA 246
The State of Western Australia v PJW [2015] WASCA 113
Wilson v The State of Western Australia [2010] WASCA 82
JUDGMENT OF THE COURT:
This is an application for leave to appeal against sentence. The appellant was charged on indictment in the District Court with three counts of persistently engaging in sexual conduct with a child under the age of 16 years, contrary to s 321A of the Criminal Code (WA) (the Code) (counts 1 to 3), five counts of producing child exploitation material, contrary to s 218 of the Code (counts 4 to 8), and one count of possession of child exploitation material, contrary to s 220 of the Code (count 9).
The appellant was tried before Davis DCJ and a jury. On the first scheduled day of the trial, 8 April 2019, the appellant pleaded guilty to count 9. He pleaded not guilty to counts 1 to 8. On 16 April 2019, the jury found the appellant guilty of counts 1 to 6 and count 8. He was found not guilty of count 7.
On 2 August 2019, the appellant was sentenced. The details of the sentences that were imposed are set out in the table below:
Charge
Description
Maximum Sentence
Sentence
Count 1
Between 27 October 2011 and 16 April 2013 at Ocean Reef and Jolimont, the appellant persistently engaged in sexual conduct with E, a child under the age of 16 years, contrary to s 321A Code
20 years' imprisonment
4 years' imprisonment
(head sentence)
Count 2
Between 27 October 2011 and 16 April 2013 at Ocean Reef and Jolimont, the appellant persistently engaged in sexual conduct with C, a child under the age of 16 years, contrary to s 321A Code
20 years' imprisonment
4 years' imprisonment
(cumulative)
Count 3
Between 14 April 2013 and 14 April 2016 at Osborne Park, the appellant persistently engaged in sexual conduct with B, a child under the age of 16 years, contrary to s 321A Code
20 years' imprisonment
3 years' imprisonment
(cumulative)
Count 4
Between 27 October 2011 and 16 April 2013 at Ocean Reef, Jolimont and Scarborough, the appellant produced child exploitation material, namely video footage of E, contrary to s 218 Code
10 years' imprisonment
3 years 6 months' imprisonment
(concurrent)
Count 5
Between 27 October 2011 and 16 April 2013 at Ocean Reef, Jolimont and Scarborough, the appellant produced child exploitation material, namely video footage of C, contrary to s 218 Code
10 years' imprisonment
3 years 6 months' imprisonment
(concurrent)
Count 6
Between 14 April 2013 and 14 April 2016 at Osborne Park, the appellant produced child exploitation material, namely video footage of B, contrary to s 218 Code
10 years' imprisonment
2 years 4 months' imprisonment
(concurrent)
Count 8
Between 2 December 2012 and 13 December 2013 at Osborne Park and Scarborough, the appellant produced child exploitation material, namely video footage of M, contrary to s 218 Code
10 years' imprisonment
6 months' imprisonment
(cumulative)
Count 9
Between 1 October 2011 and 14 April 2016 at Jolimont, the appellant had in his possession child exploitation material, namely videos and digital images of children, contrary to s 220 Code
7 years' imprisonment
12 months' imprisonment
(cumulative)
Her Honour ordered that the sentences on counts 1, 2, 3, 8 and 9 be served cumulatively and the other sentences be served concurrently with the sentence on count 1, which her Honour nominated as the head sentence. Thus, the total effective sentence imposed upon the appellant was 12 years 6 months' imprisonment. The appellant was made eligible for parole and the sentence was backdated to commence on 14 April 2016. Other ancillary orders were made, but it is unnecessary to particularise them as the appellant makes no complaint about them.
The proposed grounds of appeal
The appellant, who is self‑represented, relies grounds of appeal expressed as follows:
1.[The appellant] was punished outside of proportion to the seriousness of his crime in regard to the circumstances of his case
2.The conviction was [the appellant's] first offence
3.The Learned Sentencing Judge accepted hearsay evidence
4.The Learned Sentencing Judge used opinion evidence which was not factual
5.The Learned Sentencing Judge incorrectly categorized [the appellant's] alleged recordings
6.The Learned Sentencing Judge ignored professional opinion
7.The Learned Sentencing Judge imposed a sentence significantly higher than the Head Sentence. Dodd (1991) 57 A Crim R 349, Griffiths v R (1989) 167 CLR 372; 87 ALR 392, R v Holder [1983] 3 NSWLR 245; (1983) 13 A Crim R 375. An error of mixed fact and law.
The effect of grounds 1 and 2, when read with the appellant's submissions, is that the appellant alleges that the total effective sentence infringed the first limb of the totality principle. Grounds 3 to 7 appear to allege express errors on the part of the sentencing judge.
The appeal was filed almost two years out of time. The appellant's explanation for the delay is unsatisfactory. Whether an extension of time should be granted depends upon the merit of the appeal.
The facts
Her Honour made the following findings of fact, which she said were consistent with the jury's verdicts of guilty. She acknowledged that, in respect of all of the victims, the appellant denied behaving in a sexual or inappropriate way towards them.[1]
[1] ts 447.
The appellant was born in August 1958. At all relevant times, he was employed as a traffic warden at a primary school in a suburb of Perth.[2]
[2] ts 448.
In about 1993, the appellant married a woman, and moved to Perth with her. Together, they had a son, K, who was born in 1997. The appellant and his wife separated in 1999, and later divorced. His ex‑wife married another man, and in 2005, she gave birth to triplets. The appellant is not the father of these children. Two of the triplets are victims in this case, E and C. The appellant's ex‑wife and her second husband divorced. Her second husband remarried and moved to China.
The appellant maintained contact with his ex‑wife and had contact with the triplets. He would often look after the children at their home and at his home. On occasions, he took them on outings.
In 2013, the appellant met and befriended B and M's mother. He gained her trust and between 2013 and 2016, he babysat these children.
All of the offences charged in counts 1, 2 and 3 were recorded on video by the appellant. The video recordings were played at trial and were admitted into evidence as exhibits. Her Honour made detailed written findings of fact describing what is depicted in the video recordings of E, C, B and M. This was provided to the parties when the appellant was sentenced in a document headed, 'Findings Relevant to the Video Footage for the Purpose of Sentence' (the video findings document).
At the time of count 1 and count 4, which her Honour found occurred between 4 November 2011 and 25 December 2012, E was aged between 6 and 8 years.[3] The appellant was aged between 53 and 55 years. Her Honour found, based on the video recordings, that on eight different days, the appellant performed different acts of indecent dealing. In chronological order, the eight dates are 4 November 2011, 18 November 2011, 2 December 2011, 9 December 2011, 25 December 2011, 24 February 2012, 18 April 2012 and 25 December 2012.
[3] ts 448 - 449.
The indecent dealings against E comprised, among other things, rubbing her vagina over her underwear, spreading open the lips of her vagina, something he did on multiple occasions, squeezing around her nipple area, exposing her vaginal, breast, and nipple areas, touching her chest over her clothes, squeezing her breast area, rubbing her thigh and tickling her pubic area. Her Honour noted that in most of the recordings the appellant directed E. For example, in one video he said to E, 'Open your legs'. In another, he asked her, in relation to her vagina, 'Do you need this?', in relation to her nipples, 'What about these, do you need these?'. On 25 December 2012, the appellant spoke about making a deal. He said to E, 'If you are not ticklish I will give you $5'. He then told her to lie down and lift her top. He then said, 'Let's see if you're ticklish'. In the same recording, the appellant pulled E's underwear as if to loosen it, saying, 'This is too tight', and exposed her vagina.
The recordings emphasise the child's genital area and her chest. In a recording made on 9 December 2011, the appellant directed E to, 'Open your legs', and then directed her to, 'Put the banana there', which she did. The appellant said, 'It's like a doodle, isn't it?'
The recordings made by the appellant in respect of E are the subject of count 4.
Counts 2 and 5 occurred between 3 November 2011 and November 2015 at a time when C was aged between 6 and 10 years old. The appellant was aged between 53 and 57 years.[4]
[4] ts 450.
Her Honour found beyond reasonable doubt, based on the video‑recordings, that the appellant committed indecent dealings on C on 12 different days. In chronological order, those days were 2 December 2011, 15 December 2011, 25 December 2011, 26 December 2011, 24 February 2012, 2 March 2012, 23 March 2012, 18 April 2012, 27 April 2012, 20 May 2012, 8 June 2012 and 3 November 2015.[5]
[5] ts 450 - 452.
The indecent dealing of C was similar to the indecent dealing of E and included touching and squeezing her breasts and nipples, touching her vagina over and under her underwear, and skin‑on‑skin touching of the vagina. The appellant engaged in the same kind of sexualised language that he engaged in with E. In the recording made on 27 April 2012, he pulled across her shorts and underwear and said, 'I want to see that cunt'. In the recording made on 23 March 2012, both E and C feature. At one point, in reference to their vaginas, the appellant asked C, 'Has E got a little hole?' When C replied in the affirmative, the appellant said, 'I think you have both got little holes'. In the recording made on 3 November 2015, C is depicted naked on a bed with her legs positioned in a way which provides a full view of her vagina and anus. The appellant is seen to touch her vaginal area and stretch it open. Later that day, the appellant videos her in the bath. The camera focuses on C's genital area.
The recordings made by the appellant in respect of C are the subject of count 5.
Counts 3 and 6 concern B. At the relevant time, B was a toddler, aged 22 months. The appellant was aged 55 years.[6] Her Honour was satisfied that the appellant indecently dealt with B on four different days, being 12 December 2013, 17 December 2013, 18 December 2013 and 19 December 2013.[7]
[6] ts 452.
[7] ts 453.
The indecent dealings in respect of B include touching her nipples, bottom and vagina, spreading apart the lips of her vagina with his fingers, and rubbing her vagina with his fingers. The recordings which show the indecent dealings with respect to B form the subject of count 6.
Her Honour made a number of general observations with respect to the offending the subjects of counts 1 to 6. First, while she identified the different days on which offences of indecent dealing occurred in respect of each child, her Honour found that, more often than not, the appellant indecently dealt with the child on several different occasions during each separate day that was recorded.[8] Second, the recordings which were shown to the jury during the trial were not all the recordings that the appellant made of the victims. What was shown at the trial was a much reduced sample from a number of recordings which the State originally intended to produce at the trial. Information in the brief revealed that video recordings were made of E on 80 separate occasions; C on 71 separate occasions; and B on 30 separate occasions. As a result, her Honour was satisfied that the indecent dealings the subject of the charges in respect of E, C and B are representative of the appellant's offending behaviour.[9] Third, in respect of the child exploitation material the appellant produced and which was the subject of counts 4, 5 and 6, her Honour assessed the material as falling within child exploitation material classification categories 1 to 3. The fourth general observation made by her Honour is that, despite the recordings and what is shown in them, the appellant continues to deny that there is anything sexual about them. Her Honour found that what the appellant did was indeed sexual.
[8] ts 453.
[9] ts 454.
As to count 8, the appellant made recordings of M when she was aged 11 or 12 years. Six recordings which were taken over three days were shown to the jury. The appellant produced child exploitation material by filming M's breasts as she bent forward, often zooming in on her bare breasts on a number of occasions.[10] Unlike the offending in respect of E, C and B, the appellant did not touch M. As with the recordings of E, C and B, the jury did not see all of the recordings that were made of M. In all there were 14 recordings of M. Her Honour described the child exploitation material in respect of M as coming within classification category 1.[11]
[10] ts 455.
[11] ts 455 - 456.
As to count 9, at about 4.55 pm on 13 April 2016, police officers executed a search warrant at the appellant's home and seized a number of computer devices belonging to him.[12] The computer devices were later analysed and found to contain 26,425 videos and images of children other than the children referred to in counts 4, 5, 6 and 8. These videos and images depict children aged from under 1 year of age to approximately 10 years of age. There were 893 videos and 21,260 images which came within category 1.[13] There were 109 videos and 204 images that came within category 2.[14] There were 111 videos and 1,237 images that came within category 3.[15] In category 4, there were 731 videos and 1,418 images.[16] In category 5 there were 178 videos and 328 images.[17]
[12] ts 456.
[13] Her Honour's reference to this and other categories appears to be a reference to the ANVIL Categorisation of Child Exploitation Material. Category 1 depicts no sexual activity, but includes nudity, surreptitious images focused on underwear, nakedness, sexually suggestive posing and explicit emphasis on genital areas and solo urination.
[14] Category 2 shows solo masturbation of a child or non‑penetrative sexual acts between children.
[15] Category 3 shows non‑penetrative sexual activity between children and adults, including mutual masturbation.
[16] Category 4 refers to penetrative sexual activity between children and adults.
[17] Category 5 refers to sadism, bestiality or humiliation.
The appellant's personal circumstances
The appellant was 60 years old when he was sentenced. He was born and raised in Western Australia.[18] He had what her Honour described as 'a good childhood'. He has siblings, with whom he still maintains contact. The appellant was educated to year 12, and did well at school. After some tertiary education, the appellant worked in a variety of occupations. Before being remanded in custody for the offending the subject of this appeal, the appellant was employed as a school traffic warden for two hours a day, over a period of about 14 years.[19]
[18] ts 457.
[19] ts 458.
The appellant has a record of involvement in children's sport.
The appellant has no issues with alcohol or illicit drugs. He suffers from diabetes and also experiences sciatic pain, following a back injury he sustained at work.
Apart from a traffic offence, the appellant has no prior convictions.
The reports
Her Honour was provided with a pre‑sentence report and a report by a clinical psychologist, Cinzia Zuin. In an interview with Ms Zuin, despite the volume of child exploitation found in his possession, the appellant emphatically denied any sexual interest in children. Her Honour did not accept these denials. Consistently with the findings of Ms Zuin, her Honour found that the appellant's offending suggested the presence of a paedophilic interest.[20] Her Honour noted that Ms Zuin conducted a risk assessment, using the Static‑99R test. While the test results indicated a below average risk of future sexual offending, Ms Zuin noted that the results may be inaccurate, and that there is an indication that the appellant is at higher risk than indicated by the test results. In her Honour's view, the appellant posed a higher risk than the test results revealed. Her Honour also observed that while Ms Zuin concluded that, having regard to his persistent behaviour and the indication of paedophilic interests, the appellant has intensive treatment needs in regard to his sexual offending and his emphatic stance of denial poses significant challenges to his future treatment.
[20] ts 459.
The sentencing remarks
Her Honour identified the following aggravating circumstances:
(1)The conduct against each of E, C and B demonstrated a high degree of perversion or deviance on the appellant's part.[21] Her Honour acknowledged that there were no instances of sexual penetration, however, the indecent dealings involved skin‑on‑skin touching of each victim's vagina or genital area. Her Honour observed that each of E, C and B was very young at the time, and could not have been more vulnerable. Her Honour described the offending behaviour as brazen, having regard to the fact that in counts 1 and 2, the appellant offended on occasions when the victims' siblings were close by. In the case of count 3, some of the acts were committed when the victim's older sister, mother or grandmother were nearby.
(2)There was 'a considerable age difference' between the appellant and each of the child victims.
(3)In respect of each of the child victims, the appellant was in a position of trust and authority over the child. The offences involved a significant abuse of trust.
(4)The appellant repeatedly used the opportunity to look after the children to sexually abuse them.
(5)While the appellant did not use physical force in relation to the victims, this was not necessary having regard to their age and relationship with him. Nevertheless, there was an element of abuse on the appellant's part, having regard to the persistent way in which he enticed the victims to sit on his lap in such a way as to enable him to open their legs and film between their legs.[22]
(6)The offending was repetitious and, in the case of E and C, occurred on many occasions over a period of years. The offending against B was limited to four occasions, which occurred in the space of a matter of weeks.
(7)Her Honour noted the victim impact statement provided by the mother of E and C.[23] The statement revealed that the offending has had a continuing adverse impact on the children. Her Honour also noted the court's recognition that the type of offending engaged in by the appellant has a destructive effect on a child's capacity to trust others, to form relationships, and upon the child's sense of self‑worth. She also said that it may adversely affect the child's ability to achieve his or her full potential in education and employment.
(8)Her Honour observed that the appellant had not expressed any remorse for his offending, or made any effort towards rehabilitation.
[21] ts 460.
[22] ts 460 - 461.
[23] ts 461.
As for mitigating factors, her Honour recognised that the appellant had no prior convictions and that he was a person of otherwise good character.[24] However, this last factor was accorded little weight because offences of the kind committed by him, until revealed, generally do not impact on the perception that other people have of the offender. Her Honour also recognised as a mitigating factor the appellant's age, although she did not consider him to be of a very advanced age. She also took into account the appellant's diabetes and back problem, noting that both conditions were treatable in prison. Because of the very serious nature of the offending, her Honour said that the appellant's age could not lead to any significant reduction in the sentences she was to impose. Moreover, the appellant's favourable personal circumstances could provide only limited mitigation.
[24] ts 462.
Her Honour had regard to the need to provide general deterrence. Because of the appellant's inability or unwillingness to appreciate the sexual nature of his offending, there was a real need for the sentences to provide personal deterrence and community protection.[25]
[25] ts 462.
With respect to count 9, her Honour took into account as a mitigating factor the appellant's plea of guilty, which was entered late in the proceedings. Pursuant to s 9AA of the Sentencing Act 1995 (WA), her Honour gave a 5% discount for the plea of guilty.[26]
[26] ts 463 - 464.
Her Honour had regard to the totality principle. She reduced the sentences she would have imposed on counts 1 and 2 from 7 years' imprisonment to 4 years' imprisonment. She reduced the sentence on count 3 from 4 years 8 months' imprisonment to 3 years' imprisonment. She reduced the sentence on count 8 from 12 months' imprisonment to 6 months' imprisonment, and she reduced the sentence on count 9 from 3 years' imprisonment to 12 months' imprisonment. Her Honour then made the orders for cumulacy and concurrency referred to at [4] above. After stating that the total effective sentence for the eight offences was 12 years 6 months' imprisonment, her Honour said that having one last look at the total effective sentence, it, in effect, complied with the first limb of the totality principle.[27]
[27] ts 464.
Relevant legal principles
The relevant legal principles to be applied in respect of this appeal are well established and were explained by the court in Wilson v The State of Western Australia as follows:[28]
1.The imposition of a sentence involves the exercise of a discretion. An appellate court can only intervene if the appellant demonstrates that the judge erred in exercising the discretion in one of two ways. The first is called express error and it involves acting on a wrong principle, for example, by mistaking the law, mistaking the facts, taking into account an irrelevant matter or failing to take into account a relevant consideration. The second is referred to as implied or inferred error. It arises where, although it is not possible to discover the exact nature of the error, the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred: House v The King (1936) 55 CLR 499, 505. In most instances a challenge based on implied error will involve the contention that an individual sentence is manifestly excessive (or inadequate) and (or) that the total effective term imposed for all charges offends the totality principle.
2.It follows that the appeal court will not intervene simply because the members of the court, had they been sentencing the offender at the original hearing, might have imposed a different sentence: House, 505.
3.Even if error is demonstrated the appellate court can intervene only if it is satisfied that a different sentence should have been imposed at the original hearing: Criminal Appeals Act s 31(4)(a).
4.An appellant must obtain leave to appeal on each ground that she or he wishes to advance in support of the appeal and the court must not grant leave unless it is satisfied that the ground has a reasonable prospect of succeeding: Criminal Appeals Act s 27(1) and (2).
5.To have a reasonable prospect of succeeding, a ground must have a rational and logical prospect of succeeding, or a real prospect of success: Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [25] - [61], especially [56].
[28] Wilson v The State of Western Australia [2010] WASCA 82 [2].
An accepted statement of the totality principle was made by McLure P in Roffey v The State of Western Australia:[29]
The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341.
The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J).
The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up: R v Holder (260).
[29] Roffey v The State of Western Australia [2007] WASCA 246 [24] ‑ [26].
It is also well established that the primary sentencing considerations for sexual offences against children are appropriate punishment of the offender and personal and general deterrence, having regard to the need to protect vulnerable children. For this reason, matters personal to such an offender are of less weight than might otherwise be the case. The fact that an offender is otherwise of good character carries little weight because the offences are of a kind that, until revealed generally, do not impact on other people or upon their perception of the offender.[30]
[30] The State of Western Australia v PJW [2015] WASCA 113 [34] - [35].
In assessing the seriousness of a course of conduct involving child sexual offences, a number of factors must be taken into account. These include the number of victims, the number and type of offences, the period of time over which the offending continued, the age and vulnerability of the the victims, and the relationship between the offender and the victims, including the extent of any breach of trust.[31] It should not be overlooked that offences of the kind committed by the appellant can damage the victim's childhood and impair a healthy developmental path.
[31] See JYL v The State of Western Australia [2021] WASCA 222 [146], [150].
Disposition
It is convenient to first deal with grounds 3 to 7 and then grounds 1 and 2.
Ground 3
Ground 3 states:
The Learned Sentencing Judge accepted hearsay evidence.
The background to this ground of appeal is as follows.
As already mentioned, at trial the appellant denied that he touched any of the complainants in a sexual way. In his evidence, the appellant claimed that E and C were born with an autoimmune condition called G6PD deficiency, which manifests itself by persistent sores. He asserted that he was aware of the condition because his son, K, has it. He said that the children would come to him with any health conditions they had and not to their mother because she was working full‑time, and that he was exposing the girls' vaginas towards the camera in order to inspect sores caused by the condition.
Prior to sentencing the appellant, her Honour inquired from the State, with the knowledge of defence counsel, as to whether E and C had G6PD deficiency. The State conferred with the children's mother, who advised the prosecutor that neither child suffered from any medical condition that would warrant the appellant having to expose their bodies in the way he did in the recordings. The prosecutor included these details in the State's written sentencing submissions, which were provided to her Honour and defence counsel before the sentencing hearing commenced on 2 August 2019.
At the sentencing proceedings on 2 August 2019, in the presence of the appellant, her Honour asked defence counsel if it was accepted that the children did not suffer from any relevant medical condition. Defence counsel informed her Honour that the appellant accepted the advice provided to the court by the State.[32]
[32] ts 430.
In his written submissions in support of ground 3, the appellant complains of the hearsay nature of the advice given to her Honour that E and C did not suffer from any condition, including G6PD deficiency, that could warrant the appellant having to expose their bodies in the way he did in the recordings.
This ground of appeal has no merit. Section 15 of the Sentencing Act provides that, to decide on the proper sentence to be imposed upon an offender, a sentencing court may inform itself in any way it thinks fit. The words of s 15 of the Sentencing Act are very wide in their scope, such that a sentencer will not necessarily be bound by the rules of evidence. This is not to say that the wide power given to a sentencing judge by s 15 is without limits. For example, a sentencer is obliged to accord procedural fairness and, where it is necessary to determine disputed facts for the purposes of sentencing, the rules of evidence apply.
In the present case, defence counsel was aware of her Honour's inquiry as to whether the children suffered from any health conditions that could warrant the appellant having to expose their bodies in the way he did and, in particular, whether they suffered from G6PD deficiency. The advice given to her Honour by the prosecutor, to the effect that the children did not suffer from any relevant medical condition, was expressly accepted by defence counsel. In the circumstances, her Honour was entitled to act on the advice she had been given by the prosecutor, despite its hearsay nature.
Ground 4
Ground 4 states:
The Learned Sentencing Judge used opinion evidence which was not factual.
The background to this ground of appeal is as follows.
On the morning of 2 August 2019, her Honour advised counsel that, in order to make findings as to what days the appellant indecently dealt with E, C and M in respect of counts 1, 2 and 3, it had been necessary for her to review the video recordings. Her Honour said that in doing so she would rely on the date and time stamps on the videos shown on her computer.[33] Her Honour said that she was preparing a schedule in relation to, relevantly, E and C, setting out the relevant videos and the days on which they were recorded. This is the document that ultimately became the video findings document. See [13] above. Her Honour said that she was putting the prosecutor on notice that, in respect of E, the number of separate days on which the appellant indecently dealt with her was eight, and not nine as alleged by the State, and, in respect of C, one of the videos which the State alleged took place on a different day (video C11) took place on the same day as another video (video C6). Her Honour gave the parties the opportunity to review the document her Honour prepared and adjourned the proceedings to 3.30 pm that day.[34]
[33] ts 431.
[34] ts 442 - 443.
When proceedings resumed at 3.30 pm on 2 August 2019, neither the prosecutor nor defence counsel took any issue with the correctness of the document which referred to all four victims, E, C, B and M.[35]
[35] ts 445.
By ground 4, the appellant seems to be submitting that her Honour's findings as to the number of days on which the appellant indecently dealt with each of the victims in counts 1 to 3 was merely a matter of her Honour's opinion. The implication is that her Honour's findings are wrong.
There is no merit to this proposition. It is clear that in her preparation for the appellant's sentencing, her Honour carefully analysed the evidence that had been adduced at trial to determine the number of days on which the appellant had indecently dealt with each of the children the subjects of counts 1, 2 and 3. Having undertaken that analysis, her Honour prepared the video findings document which she gave to both the prosecutor and defence counsel. Neither counsel took exception to it. Her Honour was entitled to make the findings that she did. The appellant has not demonstrated that the findings are wrong.
Ground 4 has no merit.
Ground 5
Ground 5 alleges:
The Learned Sentencing Judge incorrectly categorized [the appellant's] alleged recordings.
As we understand the written submissions of the appellant, the ground seeks to challenge her Honour's categorisation of the child exploitation material the subject of counts 4, 5 and 6.
It will be recalled that her Honour found that the child exploitation material the subject of these counts fell into categories 1 to 3. It appears that the basis for the appellant's allegation of error is that all of the images and video showed skin‑on‑skin touching and not sexual activity. Although it is not clear from the written submissions, it appears that the appellant alleges that the child exploitation material should only have been categorised between categories 1 and 2.
There is no merit to this submission. While it is true that, having regard to the sentencing remarks and the sentencing judge's memorandum, much of the material came within categories 1 and 2, it is clear that some of the material also came within category 3, which comprises non‑penetrative sexual activity between children and adults. Plainly, the appellant's actions in rubbing a child's vagina or spreading the lips of the vagina constitute non‑penetrative sexual activity.
Ground 5 has no merit.
Ground 6
Ground 6 states:
The Learned Sentencing Judge ignored professional opinion.
The written submissions in support of this ground refer to the sentencing judge making a finding, contrary to the Static‑99R test undertaken by Ms Zuin, that the appellant posed a higher risk of reoffending than indicated by the test results. In substance, the appellant alleges her Honour erred in failing to find that he posed a below‑average risk.
There is no merit to this ground of appeal. Ms Zuin did not accept the results of the Static‑99R test. Ms Zuin observed that the Static‑99R test result could be misleading because of the appellant's paedophilic tendencies. Ms Zuin stated that the appellant may pose a higher risk than indicated by the Static‑99R test.
Ultimately, the appellant's risk of reoffending fell to be assessed by her Honour on all of the evidence before her. Not only did her Honour have Ms Zuin's report, but she was well positioned to make an assessment of risk, having regard to all of the evidence adduced at trial.
Her Honour was not bound by the Static‑99R test results. Her assessment of the appellant's risk of reoffending referred to in [31] above was well open to her Honour, having regard to all of the material before her.
Ground 6 has no merit.
Ground 7
Ground 7 states:
The Learned Sentencing Judge imposed a sentence significantly higher than the Head Sentence.
In support of this submission, the appellant submitted that the head sentence identified by her Honour should, as a matter of principle, reflect the total criminality of the offending, and that her Honour erred in imposing a total effective sentence in excess of the head sentence.
In support of this ground, the appellant cited Griffiths v The Queen,[36] R v Holder[37] and R v Dodd.[38] These cases do not support the appellant's submission.
[36] Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372.
[37] R v Holder [1983] 3 NSWLR 245; (1983) 13 A Crim R 375.
[38] R v Dodd (1991) 57 A Crim R 349.
It is not a condition of the totality principle that the head sentence should reflect the total criminality of an offence or that the total effective sentence cannot exceed the head sentence. The appellant was sentenced in accordance with an orthodox application of the totality principle. Her Honour ordered that the sentences on counts 1, 2, 3, 8 and 9 be served cumulatively. Her Honour was entitled to take this approach having regard to the different offences committed by the appellant against different victims at different times.
Ground 7 has no merit.
Grounds 1 and 2
We now turn to grounds 1 and 2 which, in combination, allege an infringement of the first limb of the totality principle.
We adopt without repeating her Honour's findings of fact with respect to the offending. We also have regard to the maximum penalties for the offences set out in the table at [3]. Without question, the offending was very serious. The appellant committed offences in respect of four victims, all of whom were very young and highly vulnerable. B was a toddler. E and C were each young girls aged between 6 and 10 years. M was 11 or 12 years old. The appellant took advantage of the relationships that he had with their mothers to sexually abuse the victims. The offending against E and C occurred over about a year in the case of E and over a period of years in the case of C. While the offending in relation to B occurred over a much shorter period and was less physically invasive, having regard to B's age and all the circumstances of the offending, it involved a high degree of criminality.
Not only did the appellant commit the offences the subject of counts 1, 2 and 3, he recorded what he had done, being counts 4, 5 and 6. The only reasonable inference that can be drawn from the appellant's recording of the material is that he wished to watch it in the future for his sexual gratification. In addition, the appellant committed the offence against M (count 8) and was found in possession of a very substantial amount of child exploitation material (count 9). Some accumulation was required having regard to the number of victims and offences committed by the appellant, to the seriousness of the offences and to her Honour's reduction of the individual sentences for counts 1, 2, 3, 8 and 9 in applying the totality principle. The sentencing objectives referred to in [39] and [40] all apply to the present case.
There was limited mitigation. The appellant does not have the advantage of youth, genuine remorse or pleas of guilty. He is clearly in denial of his paedophilic inclinations. The appellant poses a risk of further reoffending. As yet, there are no signs that he wishes to be rehabilitated.
While the appellant has some mitigation by reason of his age and prior good character, for the reasons given by the sentencing judge, she was correct to state that they afforded no significant mitigation.
The appellant does not cite any comparable cases. There is no tariff for offences of the kind committed by the appellant. The absence of any direct comparators is not an impediment to this court concluding that the total effective sentence infringes or does not infringe the first limb of the totality principle.
The total effective sentence of 12 years 6 months' imprisonment is within the proper exercise of her Honour's sentencing discretion. It bears a proper relationship to the appellant's overall criminality involved in all of the offences, having regard to all relevant facts and circumstances, including those referable to the appellant personally, and all relevant sentencing principles. Grounds 1 and 2 have no reasonable prospect of succeeding. The total effective sentence does not infringe the first limb of the totality principle.
Conclusion and orders
None of the grounds of appeal have any reasonable prospect of succeeding. In the circumstances, we would refuse the application for an extension of time. The orders we would make are as follows:
(1)The application for an extension of time is refused.
(2)Leave to appeal is refused on all grounds.
(3)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TW
Associate to the Honourable Justice Mazza
18 FEBRUARY 2022
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