Cluett v The Queen
[2019] WASCA 111
•5 AUGUST 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CLUETT -v- THE QUEEN [2019] WASCA 111
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 15 JULY 2019
DELIVERED : 17 JULY 2019
PUBLISHED : 5 AUGUST 2019
FILE NO/S: CACR 86 of 2019
BETWEEN: SIMON JOHN CLUETT
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GOETZE DCJ
File Number : IND 631 of 2018
Catchwords:
Criminal law - Sentencing - Possession of child exploitation material - Using a carriage service to access child pornography material - Where 61-year-old offender of prior good record pleaded guilty at first reasonable opportunity - Where limited number of images accessed on open website - Offender with cognitive impairment - Autism spectrum disorder - Where offending resulted from irrational views associated with cognitive impairment and was not sexually motivated - Whether a sentence of imprisonment to be served immediately is unreasonable or plainly unjust
Legislation:
Crimes Act 1914 (Cth), s 16A, s 17A, s 19AC, s 20
Criminal Code (Cth), s 474.19
Criminal Code (WA), s 220
Sentencing Act 1995 (WA), s 6, s 39
Result:
Leave to appeal granted
Appeal allowed
Appellant resentenced
Category: D
Representation:
Counsel:
| Appellant | : | Ms N R Sinton |
| Respondent | : | Ms S J Oliver |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (Cth) |
Case(s) referred to in decision(s):
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
Dragon v The State of Western Australia [2019] WASCA 84
Gok v The Queen [2010] WASCA 185
Kenworthy v The Queen [No 2] [2016] WASCA 207
McIntyre v The State of Western Australia [2016] WASCA 150
Minehan v The Queen [2010] NSWCCA 140; (2010) 201 A Crim R 243
Naysmith v The Queen [2013] WASCA 32
Paroline v United States 134 S Ct 1710 (2014)
R v De Leeuw [2015] NSWCCA 183
R v Edwards [2019] QCA 15
R v Freedman [2017] NSWCCA 201; (2017) 268 A Crim R 453
R v Howe [2017] QCA 7
R v Hutchinson [2018] NSWCCA 152
R v Lee [2013] WASCA 216
R v O'Connor [2012] SASCFC 15
R v Turvey [2017] SASCFC 28; (2018) 127 SASR 425
Tapper v The State of Western Australia [2016] WASCA 140
The State of Western Australia v Malone [2015] WASCA 188
REASONS OF THE COURT:
Introduction
The appellant was convicted on his pleas of guilty of the following three offences, for which he received a total effective sentence of 9 months' immediate imprisonment on 17 June 2019:
Count
Offence
Maximum term of imprisonment
Term of imprisonment imposed
Cumulative/concurrent
1
Possession of child exploitation material: s 220 of the Criminal Code (WA)
7 years
6 months
Conc
2
Using a carriage service to access child pornography material: s 474.19(1)(a)(i) of the Criminal Code (Cth)
15 years
9 months
Conc
3
Using a carriage service to access child pornography material: s 474.19(1)(a)(i) of the Criminal Code (Cth)
15 years
4 months
Conc
Total effective sentence
9 months
The sentencing judge made a recognizance release order in respect of the Commonwealth offences (counts 2 and 3), providing for the appellant to be released after serving 6 months and 1 day.
The appellant appealed against these sentences, essentially on the ground that it was manifestly excessive to impose sentences of imprisonment to be immediately served. The appeal was heard on 15 July 2019.
On 17 July 2019, the court made the following orders, with reasons to be published at a later date:
1.Leave to appeal is granted on grounds 1 and 2.
2.The appeal is allowed.
3.The sentences imposed by the primary judge are set aside.
4.On count 1 in the indictment the appellant is resentenced to a term of 6 months' imprisonment and the term is to be suspended, pursuant to s 76 of the Sentencing Act 1995 (WA), for a period of 12 months.
5.Subject to order 7, on count 2 in the indictment the appellant is resentenced to 8 months' imprisonment.
6.Subject to order 7, on count 3 in the indictment the appellant is resentenced to 3 months' imprisonment.
7.
(a)As to the new sentences for counts 2 and 3 in the indictment, the appellant is to be released forthwith upon entering into a recognizance in the sum of $500 to be of good behaviour for a period of 12 months.
(b)During the period of 12 months the appellant is to be subject to the supervision of a probation officer and is to obey all reasonable directions of the probation officer.
(c)During the period of 12 months the appellant is not to travel interstate or overseas without the written permission of the probation officer.
8.Each of the new sentences for counts 1, 2 and 3 in the indictment is to commence on 17 July 2019.
9.The appellant's application in an appeal dated 17 June 2019 for bail is dismissed.
These are our reasons for making those orders.
Circumstances of offending
The sentencing judge made the following findings of fact.[1]
Count 3 - Using carriage service to access child pornography material
[1] Sentencing ts 79 - 81, adopting the Updated Statement of Material Facts dated 28 May 2019.
At about 11.30 am on 1 August 2017, the appellant was sitting outside a delicatessen in Singleton, in a hunched over position, watching a video on his mobile phone. Two police officers drove past the appellant in a marked police vehicle, and parked nearby. The appellant began putting his personal effects, including the mobile phone, into a bag. The appellant began to walk away as the police officers exited their car and approached him. The police officers asked the appellant to stop. The appellant initially ignored them, but did stop when the instruction was repeated.
The police officers heard audio coming from the appellant's bag which sounded like pornographic material and the voices of children. The appellant was told to hand over the phone. He reached into the bag and pulled out the mobile phone. He erratically touched the screen in an effort to stop the video, which continued to play. One of the police officers told the appellant to hand over the phone and forcibly removed it from his hands.
The police observed a video on the phone, from a foreign website, of a young child, around seven years of age, laying on a bed, without clothing from his waist down, and a young girl, of similar age, leaving the bed. That video is the material which is the subject of count 3 on the indictment.
When questioned, the appellant told the police officers that the video was in relation to 'study'.
Count 1 - Possession of child exploitation material
On 2 August 2017, police executed a search warrant at the appellant's residence in Golden Bay. They seized a number of electronic devices including computers, a mobile phone and a tablet. The police also seized a diary of pictures drawn by the appellant containing numerous drawings and naked figures of both sexes and varying ages (young and in adulthood).
Data extraction of the mobile phone located 28 images of child exploitation material. The images were analysed using the Australian National Victim Image Library (ANVIL) Classification Scale. The ANVIL Classification Scale classifies images and videos into nine different categories, including:
1)Category one: includes depictions of children with no sexual activity but includes nudity, surreptitious images showing underwear or nakedness, sexually suggestive posing, explicit emphasis on genital areas and solo urination.
2)Category two: includes depictions of solo masturbation by a child, including the use of penetrative sex toys by the victim, or non-penetrative sex acts between children.
3)Category three: includes depictions of non-penetrative sex acts between children and adults.
4)Category four: includes depictions of penetrative sexual activity between children and adults, including but not limited to intercourse, cunnilingus and fellatio.
5) Category five: includes depictions of children involved in sadism, bestiality or humiliation including urination, defecation, vomit and bondage. It also includes child abuse.
6)Category six: includes anime, cartoons, comics and drawings depicting children engaged in sexual poses or activity.
Of the 28 images found on the appellant's devices, 17 were category 1, one was category 2, one was category 3 and nine were category 4. The nine category 4 videos depicted children between about 5 and 14 years of age engaged in various penetrative sexual activity, including cunnilingus, fellatio and penile - anal penetration with adults. Approximately 10 of the images of child pornography found on the devices were saved/recorded on multiple occasions.
The images of child pornography located on the mobile phone were located amongst images of Nazi Death Camps also saved on the device. These images depicted naked and undernourished adults and children in various situations. Images of piles of bodies as part of these camps were also located. A further image was also located on this mobile device entitled 'crying rape' which depicted a person believed to be female bound and gagged.
The appellant admitted ownership of the electronic devices and that he was the only user of the devices.
Count 2 - Using carriage service to access child pornography material
The data extraction of the mobile phone also obtained information saved in the internet cache from websites accessed using the phone. Between 16 September 2016 and 2 August 2017, the appellant accessed explicit imaging of children engaged in sexual intercourse and other sexual behaviour on a Chinese website (being a rough equivalent of YouTube) on 20 occasions. The images were categories 1 and 4. None of the 28 images the subject of count 1 were also found on the website.
Personal circumstances - general[2]
[2] See sentencing ts 81 - 82.
The appellant was 61 years old at the time of offending and was 63 years old at the date of sentence.
The appellant completed year 10 at high school, and went on to attend an arts course. He had worked in various roles, including caring for his parents and returning to work until 2008. Since that time he had been trying to have books published. The appellant was a pensioner at the time of sentence.
Apart from a relationship in his twenties, the appellant has been single. He has grown apart from his siblings and his parents are deceased.
The appellant has a relatively minor criminal record, mainly comprised of traffic offences. There are three convictions of making a false report to police, one conviction of wilfully misleading police, two convictions of aggravated assault and one conviction of being on premises without lawful excuse. All matters were dealt with by the imposition of fines. The most recent conviction was in August 1994.
The sentencing judge found that the appellant had pleaded guilty at the first reasonable opportunity, accepted the circumstances of his offending, facilitated the administration of justice and shown remorse.
Pre-sentence reports
The sentencing judge had the benefit of psychiatric, neuropsychological and psychological reports, in addition to a pre-sentence report.
Initial psychiatric report
Dr Siva Bala prepared the psychiatric reports. The first report, dated 30 November 2018, gives the following executive summary:
[The appellant] is an eccentric and odd individual with a history suggestive of schizoid personality disorder and possible borderline intellectual functioning. Although there is no mental illness driving the offending, [the appellant's] personality disorder might be considered to be a mitigating factor in the offending behaviour. He is likely to be a low risk of further offending and monitoring of his internet access may be the only intervention required.
Dr Bala described the appellant's account of being engaged in various projects linking childhood trauma to entry in the military and war. The appellant indicated that he viewed child pornography as part of this research, but was unable to provide a coherent account of why it was necessary to do so.
Dr Bala expressed the view that the appellant did not suffer from a mental illness that would impair his thinking or volition, but did seem to exhibit features of a 'schizoid personality disorder'. This diagnosis described persons who are 'socially withdrawn, aloof, do not crave companionship or support, have a limited range of emotional expression and lead a solitary life'. Dr Bala also observed:
As a differential diagnosis, [the appellant] may have features of autism given lack of social reciprocity, emotional aloofness and odd preoccupation with his various research themes. He also may have borderline intellectual functioning based on the history of learning difficulty and being academically and developmentally at odds with his siblings. Further collateral information and psychological testing are required to confirm or exclude these.
Dr Bala said that the appellant's offending was not driven by mental illness but, given his schizoid personality disorder, the appellant 'has an odd way of experiencing and interacting with the world'. Dr Bala said:
If anything, he is asexual, rather than having any deviant sexual interest or an antisocial pattern of behaviour. The explanation of accessing child pornography in order to facilitate his research preoccupation is plausible, given his distorted inner world and pattern of thinking and experiencing others. Paedophilic disorder does not seem to be an issue in this instance.
Dr Bala expressed the view that, clinically, the appellant's offending was driven by 'his eccentricity and unusual preoccupations that are nonsexual'. Dr Bala said:
The current offending has had an aversive effect on him, embarrassing and stigmatising him and bringing him in touch with others for legal reasons, which he finds extremely uncomfortable. Hence, it is unlikely that he will reoffend in a similar manner. He seems to be at low risk of contact offending and noncontact offending.
Dr Bala said that no specific treatment was indicated, and observed:
A custodial disposition will weigh more heavily on him compared to a person of normal health, given the schizoid personality and his poor social skills - he will find it difficult to manage relationships in prison. He is likely to adhere with community-based dispositions.
Neuropsychological assessment report
Dr Mandy Vidovich, a clinical neuropsychologist, prepared a neuropsychological assessment report dated 5 January 2019. She summarised the assessment in the following terms:
Inspection of his neuropsychological profile revealed a highly varied pattern of strengths and weaknesses. Intellectually, his core abilities were intact, with generally Average expressive language knowledge and visuo-spatial and perceptual skills. In marked contrast were his more general processing abilities with significant reductions in his auditory attention and working memory capacity, visual attention, and visuo‑motor response times. Consistent with his impaired auditory attention, his results upon verbal memory measures were poor and he demonstrated marked difficulty with the uptake and spontaneous recall of presented material. Executive deficits were characterized by inconsistent strategic processes, difficulty with flexibly adapting to changing task requirements and impaired capacity to manage complex attentional requirements. Difficulty with bilateral motor movements was also observed.
Dr Vidovich expressed the opinion that:
Collectively, there were features of his presentation, test profile and history which were consistent with that observed in individuals with Autism Spectrum Disorder. Whilst the lack of collateral information and developmental history, adds a challenge to diagnostic confirmation, there were strong indicators of this disorder throughout the time spent in his company.
Dr Vidovich also observed:
In keeping with [the appellant's] discussions around the possession of [child exploitation material] as being part of his 'research' he produced numerous examples of the 'work' that he had been developing over the years. This also included copies of letters to various organisations regarding the desire to patent or supply his programs and projects to third parties. His eccentric behaviours appear longstanding and there was no indication from his conversation, or the material produced during the sessions, that his intentions had any form of sexual overlay or motive.
Second psychiatric report
Dr Bala provided a second psychiatric report dated 5 May 2019. Dr Bala's second report, which indicated it was written with the benefit of further information and Dr Vidovich's report, indicated that the revised likely diagnosis is autism spectrum disorder with intellectual impairment. Dr Bala said that the appellant met the diagnosis for autism spectrum disorder in the following respects:
a. Deficits in developing, maintaining and understanding relationships: Dr Vidovich and I both noted deficits in non‑verbal communication and emotional expression (affect). He is a loner and prefers his own company as a result, engaging in solitary activities.
b. Restricted, repetitive patterns of behaviour and interests: The eccentric fixation on young children, childhood trauma, war and military and the preoccupation with researching and writing about this could be considered to be an example of abnormally focussed activities. Dr Vidovich noted stereotyped motor movements during the interview.
c. Some intellectual impairment as evident by Dr Vidovich's neuropsychological testing.
Dr Bala said:
In my opinion, [the appellant's] hypo-sexuality and abnormal sexual interests (as evidenced by the offending) are consistent with the diagnosis of [autism spectrum disorder]. I maintain my view that [the appellant's] offending behaviour does not, in itself, [indicate] paedophilic interests and [is] likely to be reflective of his eccentric theories regarding childhood developmental issues and trauma that he claims to have been researching. He had a small number of [child exploitation material] in his possession and had accessed a mainstream website rather than a [child exploitation material] offender specific website [or] forum to access the [child exploitation material].
However, Dr Bala noted that the appellant's explanation did not entirely explain the child exploitation material. Dr Bala said that monitoring of his ongoing sexual interests and education of normative behaviour and boundaries would be appropriate. Dr Bala also said that a term of imprisonment would weigh heavily on the appellant given the underlying autism spectrum disorder, and that he was likely to be adherent with community-based dispositions.
Psychological report
Ms Erin Sweeny prepared a psychological report dated 9 August 2018. Ms Sweeny gave the following analysis of the appellant's offending:
[The appellant] is a detached, disconnected individual, who appears to function without the need for social connectedness. It is possible he falls within the Autism spectrum, unconcerned and unaware of his limitations regarding interpersonal relationships. His main connection was to his parents, now deceased and he has no ongoing contact with siblings. [The appellant] has strong ideas and beliefs and this is likely to have contributed to past offending, as well as ongoing letter writing to various departments and his various research ideas. It is hypothesised that his rich fantasy life contributed to him exploring material on the Internet, including child exploitation images, as his way to support his argument about trauma and the causes of war. Whilst this is distorted, it is the writer's opinion that [the appellant] experiences limited sexual pleasure and failed to understand the greater impact of his decision to download such material, as he does not complicate life with emotions. His circular thinking, grandiose belief in himself and lack of input from other sources, has resulted in him exploring the Internet and using the images in completely unnecessary ways.
Pre-sentence report
A community corrections officer prepared a pre-sentence report dated 31 May 2018, which gave the following account of an interview with the appellant:
In interview [the appellant] stated that his actions have been 'blown out of proportion'. [The appellant] advised that he only viewed the images for research purposes, to aid him to better understand people's emotions for a book he is in the process of writing. [The appellant] stated that he could not have achieved this by any other legal means. [The appellant] advised that he was going to delete the images, therefore would not have had them in his possession. [The appellant] stated that he had no sexual interest in children and did not seek any sexual gratification through viewing the [child exploitation material].
Sentencing judge's approach
After referring to the above matters, the sentencing judge found that the appellant was aware of the illegal nature of the material. His Honour found that the appellant was focused on his 'research' and was prepared to take the risk because of his research.[3]
[3] Sentencing ts 86.
The sentencing judge said that, while the appellant's autism spectrum disorder reduced the need for general deterrence, the need for general deterrence remained as this was a difficult kind of offence to detect.[4]
[4] Sentencing ts 87.
The sentencing judge also found there to be a need for personal deterrence. The sentencing judge said:[5]
I accept that it's not a paedophilic interest, but you had reasons for accessing material, and you have wanted to get on with your research. You've indicated you couldn't access this material by, to quote the pre‑sentence report, 'any other legal means.'
[5] Sentencing ts 87.
The sentencing judge referred again to the medical opinions, and said:[6]
But it seems to me that a penalty to operate as a personal deterrent is necessary, to make sure that you don’t offend in this way again. But it follows, also, the fact that the police action has frightened you ... So it can, perhaps, be a lesser need also for personal deterrence.
[6] Sentencing ts 88.
The sentencing judge referred to general principles concerning sentencing for this kind of offending, and concluded, in effect, that the seriousness of the offending was such as to demand a term of imprisonment to be immediately served. His Honour said:[7]
But it seems to me that your offending and your knowledge of your offending requires that you serve a term of imprisonment.
Given the mitigatory matters that are set out in the reports, they should be approached from the point of view of a lower sentence than might otherwise be the case.
[7] Sentencing ts 89.
The sentencing judge then imposed the sentences noted at [1] above.
Grounds of appeal
The appellant's grounds of appeal contend, in effect, that the type of sentence imposed by the sentencing judge was manifestly excessive. Ground 1 contends that a sentence of imprisonment, to be served immediately or otherwise, was not warranted. Alternatively, ground 2 contends that the sentencing judge erred in ordering that the appellant serve the terms of imprisonment immediately. The appellant does not complain about the length of the terms imposed.
Implied error: General principles
The general principles relevant to dealing with a ground of appeal alleging that a sentence is manifestly excessive are well-established:
(1)A ground of appeal which alleges that a sentence is manifestly excessive asserts an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
(2)The discretion conferred on sentencing judges is of fundamental importance and 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. The appellant must demonstrate that the sentence imposed is unreasonable or plainly unjust.
(3)The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that 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 that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
(4)A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual 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.
(5)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.
Imprisonment and suspended imprisonment: State offences
In considering the appropriate type of sentence for count 1, the following provisions of the Sentencing Act 1995 (WA) are relevant.
Section 6(1) lays down the fundamental sentencing principle that a sentence imposed on an offender must be commensurate with the seriousness of the offence. Section 6(2) provides that the seriousness of an offence must be determined by taking into account the statutory penalty for the offence; the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; any aggravating factors and any mitigating factors. Section 6(4) 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.
Pursuant to s 39(2) and s 39(3) of the Sentencing Act, a court must not impose a term of immediate imprisonment unless satisfied, having regard to the principles in div 1 of pt 2, that it is not appropriate to impose suspended or conditionally suspended imprisonment.
Under these provisions, a sentencing judge must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately. The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation. The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation.[8]
[8] Tapper v The State of Western Australia [2016] WASCA 140 [68] - [70] and the cases there cited.
In the circumstances of this case, the question is ultimately whether it was open to the sentencing judge to conclude that the seriousness of the State offence and considerations of general deterrence outweighed the mitigating factors, so that:[9]
(1)only imprisonment can be justified; and
(2)it was inappropriate to suspend or conditionally suspend the sentence of imprisonment.
[9] See Tapper [75]; McIntyre v The State of Western Australia [2016] WASCA 150 [19].
Imprisonment and recognizance release: Commonwealth offences
The following provisions of the Crimes Act 1914 (Cth) applied in respect of the sentences for the Commonwealth offences.
Section 16A(1) requires that, in determining the sentence to be passed for a federal offence, the court must impose a sentence that is of a severity appropriate in all the circumstances of the offence. Section 16A(2) provides that the court must take into account a number of specified matters as are relevant and known to the court.
Section 17A(1) provides that a court shall not pass a sentence of imprisonment on any person for a federal offence unless the court, having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.
Section 19AC(1) of the Crimes Act relevantly requires a court imposing sentences of more than 6 months[10] and less than 3 years' imprisonment to make a single recognizance release order. That requirement is subject to s 19AC(4), which allows the court to decline to make a recognizance release order if:
(a) the court is satisfied that such an order is not appropriate, having regard to:
(i) the nature and circumstances of the offence or offences concerned and;
(ii) the antecedents of the person.
Section 16(1) defines a 'recognizance release order' as an order made under s 20(1)(b) of the Crimes Act. Section 20(1)(b) provides that a court sentencing a person convicted of a federal offence may, if it thinks fit:
sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a) either forthwith or after he or she has served a specified period of imprisonment in respect of that offence or those offences that is calculated in accordance with subsection 19AF(1).
[10] See s 19AC(3) of the Crimes Act.
Section 19AF(1) requires that the court fix a recognizance release order such that the pre-release period ends not later than the end of the sentence.
In this appeal, the question in relation to the Commonwealth offences is whether it was open to the sentencing judge to conclude:
(1)that a sentence of imprisonment was the only appropriate sentence in all the circumstances of the case; and
(2)if so, that some part of this sentence should be immediately served.
Customary sentencing standards for child exploitation material offences
As was noted in R v Lee,[11] the imposition of a sentence other than immediate imprisonment for State offences of possessing child exploitation material and the federal offence of importing child pornography is, as a matter of fact, exceptional. Deterrence is a paramount consideration. The courts have recognised that those who possess or import child pornography help fuel the demand for it, and that deterrence is required to protect children from sexual abuse and exploitation. Similar statements are to be found in this and other jurisdictions in the context of considering sentences imposed under s 474.19 of the Criminal Code (Cth).[12]
[11] R v Lee [2013] WASCA 216 [33] - [39].
[12] Kenworthy v The Queen [No 2] [2016] WASCA 207 [166], [180]; R v De Leeuw [2015] NSWCCA 183 [72]; Taylor v The Queen [2015] TASCCA 7 [27] - [29]; Director of Public Prosecutions (Cth) v D'Alessandro [2010] VSCA 60; (2010) 26 VR 477 [21]; R v O'Connor [2012] SASCFC 15 [14]. Cf Director of Public Prosecutions (Cth) v Garside [2016] VSCA 74; (2016) 50 VR 800 [62].
This court reviewed cases considering sentences imposed under s 474.19 of the Criminal Code (Cth) in Kenworthy.[13] In the cases reviewed, the individual sentences of immediate imprisonment for offences against s 474.19 imposed or upheld on appeal ranged from 6 months to 4 years 6 months' imprisonment. Most, but not all, of those terms involved a component to be immediately served.
[13] Kenworthy [166] - [179]. See also Dragon v The State of Western Australia [2019] WASCA 84; R v Edwards [2019] QCA 15; R v Hutchinson [2018] NSWCCA 152; R v Freedman [2017] NSWCCA 201; (2017) 268 A Crim R 453; R v Howe [2017] QCA 7.
One of the exceptional cases where immediate imprisonment was not imposed was Naysmith v The Queen.[14] In Naysmith, this court set aside custodial sentences imposed for possessing child exploitation material and using a carriage service to access child pornography material. The 28-year-old offender, who had no prior convictions, entered 'fast track' pleas of guilty. The State offences involved possessing 5,832 images and video files, the vast majority of which were in the lowest category of seriousness, depicting erotic posing with no sexual activity. However, 64 images depicted sexual activity between children or solo masturbation; 93 images depicted non‑penetrative sexual activity between adults and children; 368 images depicted penetrative sexual activity between children and adults; and three images depicted sadism or bestiality. The Commonwealth offence involved accessing 33 images on one day. The offender suffered from significant intellectual disability, and required considerable support to live in the community. The offender's degree of mental impairment was greater than the appellant's, although a much larger quantity of material was involved overall. This court substituted an intensive supervision order.
[14] Naysmith v The Queen [2013] WASCA 32.
In reaching that conclusion, the court in Naysmith observed:[15]
However, even if it be the case that ordinarily or generally a term of immediate imprisonment is the appropriate penalty for an offence, the sentencing judge is not relieved of his or her obligation to assess whether, having regard to all relevant sentencing factors in the case under consideration, it is appropriate to impose a lesser sentence. The question for the sentencing judge is whether, having regard to all relevant sentencing factors, the case does not require the imposition of the generally appropriate type of sentence for the offence.
[15] Naysmith [25].
In D'Alessandro, the Victorian Court of Appeal identified the following factors which bear upon the seriousness of an offence against s 474.19 of the Criminal Code:[16]
(a)the nature and content of the pornographic material - including the age of the children and the gravity of the sexual activity portrayed;
(b)the number of images or items of material possessed by the offender;
(c)whether the possession or importation is for the purpose of sale or further distribution;
(d) whether the offender will profit from the offence.
[16] D'Alessandro [21].
The New South Wales Court of Criminal Appeal identified a somewhat broader range of factors in Minehan v The Queen,[17] where it was also said that the list of factors was not closed, and individual cases may always produce further matters relevant to the assessment of their objective seriousness.[18]
[17] Minehan v The Queen [2010] NSWCCA 140; (2010) 201 A Crim R 243 [94].
[18] Minehan [95], referred to with general approval in Victoria in Garside [25].
Significance of mental impairment as a sentencing consideration
As Buss JA (McLure P and Mazza JA agreeing) noted in The State of Western Australia v Malone:[19]
The effect of a mental disorder, intellectual disability or psychological difficulties (falling short of insanity and which have not been self‑induced) on the moral blameworthiness or culpability of an offender is variable. It depends upon the nature, effect and severity of the condition and its symptoms. An offender who seeks to rely on a mental disorder, intellectual disability or psychological difficulties as a factor which reduces his or her moral blameworthiness or culpability must prove on the balance of probabilities that the condition impaired his or her functioning to such an extent as to reduce the moral blameworthiness or culpability of the offending behaviour. However, although a mental disorder, intellectual disability or psychological difficulties (falling short of insanity and which have not been self-induced) will often tend to diminish moral blameworthiness or culpability and, consequently, tend to diminish the otherwise appropriate sentence, it may in some circumstances have other effects. For example, the existence of a causal connection between the mental disorder, intellectual disability or psychological difficulties, on the one hand, and the offending behaviour, on the other, might reduce the importance of general deterrence but increase the importance of personal deterrence or the need to protect the public. A sentencing factor may be relevant in a number of respects and not affect the sentencing outcome because the factor weighs both positively and negatively in the balance.
[19] The State of Western Australia v Malone [2015] WASCA 188 [74].
Mental impairment can, depending on the circumstances, including any causal connection between the impairment and the offending, affect the significance of general deterrence as a sentencing consideration.
Non-drug induced mental impairment which has a causal relationship to the offence can impact on considerations of personal and general deterrence, in addition to reducing the moral culpability of the offender, as Mazza JA (McLure P and Buss JA) agreeing, explained in Gok v The Queen:[20]
The impact of general deterrence is something which is often misunderstood. It is not the law that once it is demonstrated that an offender has a mental impairment that general deterrence is irrelevant. General deterrence still operates when a court is sentencing an offender with a mental impairment but its effect is, to use a phrase sometimes used in the cases, 'sensibly moderated'. In many cases, general deterrence will be given less weight because the offender is simply an inappropriate medium for making an example to others. However, it is an extreme case where considerations of general deterrence are eliminated entirely. …
The degree to which general deterrence is moderated very much depends on the facts of the case. At one end of the spectrum stands the case where the offender is so afflicted by his or her mental impairment or impairments that general deterrence plays virtually no part. At the other end are cases where the moderation of general deterrence is small because the offender knows what he or she is doing and appreciates the gravity of his or her actions.
With respect to personal deterrence, again much depends upon the circumstances. The law assumes that an offender has the intellectual capacity to be deterred from committing an offence by the prospect of being punished if the offence is committed and detected. Where an offender's mental impairment affects that person's ability to understand this, the effect of personal deterrence will be moderated. The extent to which it is moderated will depend upon the extent to which the offender has the ability to reason in the way I have described. In some cases … personal deterrence has little point whereas in other cases it would be more significant. (citations omitted)
[20] Gok v The Queen [2010] WASCA 185 [59] - [61].
Disposition
In our view, the sentencing judge correctly considered the seriousness of the offending in this case to be such that imprisonment was the only appropriate sentencing option. However, in our view it was not open to the sentencing judge to conclude that:
(1)it was inappropriate to suspend or conditionally suspend the sentence of imprisonment for the State offence; or
(2)some part of the sentences of imprisonment for the Commonwealth offences should be immediately served.
In our view, a number of unusual circumstances combine to make this one of the exceptional cases which does not require the imposition of the generally appropriate type of sentence for the offences.
First, the number of images possessed or accessed is much lower than ordinarily features in cases of this kind. While the images the subject of count 2 were accessed over an extended period of about a year (so the offending was not isolated), images were only accessed on 20 occasions. Count 3 involved a single video, about which little is known beyond the description given at [9] above. While some of the images the subject of count 1 depicted very serious child sexual abuse, there were only 9 such images out of 28 images in total. This reduced the seriousness of the offending, as compared to the more common cases involving hundreds or thousands of images.
Secondly, the sentencing judge accepted that the appellant's viewing of the material was not motivated by a sexual attraction towards children. That finding, which is not challenged in the appeal and is supported by the medical evidence, reduces the significance of community protection and personal deterrence as sentencing considerations. The appellant is not a person with a compulsive addiction to child pornography, which would increase the likelihood of future offending.
Thirdly, this is not a case which is aggravated by the appellant paying to access the pornography, or participating in forums or other communications which promote the dissemination and production of child exploitation material. The website the appellant accessed catered to the interests of the general public and was not focused on paedophilia or child exploitation material. He accessed it only for his personal use and did not propose to share the material with others. The manner in which the appellant accessed the images did little to encourage or promote the production or dissemination of child exploitation material. He did not himself stand to make any financial gain from its distribution.
It must, however, be emphasised that the absence of the aggravating features referred to above does not make this a victimless crime. Even though the appellant did not participate in any 'market' for child exploitation material in a way that would encourage its production or dissemination, his accessing of the images violated the privacy of the victims of the depicted child abuse. The South Australian Court of Criminal Appeal made this point in R v Turvey,[21] by reference to passages in the judgment of the Supreme Court of the United States in Paroline v United States,[22] which included the observation that:
The demand for child pornography harms children in part because it drives production, which involves child abuse. The harms caused by child pornography, however, are still more extensive because child pornography is 'a permanent record' of the depicted child's abuse, and 'the harm to the child is exacerbated by [its] circulation.'
[21] R v Turvey [2017] SASCFC 28; (2018) 127 SASR 425 [135] - [138].
[22] Paroline v United States 134 S Ct 1710 (2014).
As the court recognised,[23] sight should never be lost of the fact that the distribution of child pornography results in the continued re‑victimisation of the child featured, in addition to the corrupting influence it has on those who access the material. It is for these reasons that, while an intention to profit or benefit from the material will aggravate the offence, absence of such profit or benefit is not mitigatory. The ongoing and real risk of re‑victimisation and the perpetual exploitation of the child involved in the dissemination of child sexual abuse over the internet demands that paramountcy be afforded to general deterrence.[24] The mere fact that child exploitation material is accessed from an open website without any exchange of money does not justify the imposition of a sentence other than one of immediate imprisonment. Nothing in these reasons should be taken to suggest to the contrary.
[23] Turvey [136].
[24] Turvey [138].
Fourthly, the appellant was a 63-year-old man at the time of sentence without any relevant criminal record, who (apart from the offending the subject of the appeal) had not been convicted of any offences since 1994.
Fifthly, the appellant pleaded guilty to the offences at the first reasonable opportunity, cooperated with police in relation to the location of the images the subject of counts 1 and 2, and has expressed remorse for the offending.
Sixthly, the appellant's autism spectrum disorder was a contributing factor to his offending. On the sentencing judge's unchallenged findings, the appellant's fixation on his 'research' led him to obtain or access the images. While there was no rational basis for thinking that viewing the images was required for that purpose, the lack of rationality in the appellant's thought processes was a product of his autism spectrum disorder. In our view, although the appellant appreciated the illegality of his conduct, his autism spectrum disorder reduces both his moral culpability and the significance of general deterrence as a sentencing consideration.
Seventhly, the significance of personal deterrence as a sentencing factor is significantly reduced by the psychologist's and psychiatrist's view of his future risk of offending. Dr Bala's view in particular is that the impact of the appellant's interaction with the criminal justice system has been such that he is unlikely to reoffend in a similar manner.
Eighthly, the symptoms of the appellant's autism spectrum disorder mean that imprisonment would be much more onerous for the appellant than for an ordinary prisoner. His difficulty in interacting with others makes it harder for him to cope within the prison regime, while the eccentricities which are a manifestation of that disorder are likely to make him a target for bullying.
None of the above factors, considered individually, would necessarily justify a sentence other than immediate imprisonment. However, in our view the combined effect of all of those factors makes the decision to impose a sentence of immediate imprisonment unreasonable or plainly unjust.
In our opinion the appellant has not established ground of appeal 1, which asserts that imprisonment was not warranted. However, ground 2, which in effect asserts that sentences of immediate imprisonment were manifestly excessive, is established.
Resentencing
There is no complaint as to the length of the individual sentences. We agree with the sentencing judge that a discount of 25% under s 9AA of the Sentencing Act is appropriate in relation to the State offence. However, it was appropriate for this court to reduce the sentences for the Commonwealth offences by one month to take account of the time the appellant spent in custody between the imposition of the sentences by the sentencing judge and the determination of this appeal. All of the new sentences begin on the date of determination of the appeal, 17 July 2019.
In our view, it was appropriate to make a recognizance release order providing for the appellant to be released forthwith, subject to conditions. The conditions imposed on the recognizance release order meant there was no need to make the suspended imprisonment for the State offence subject to conditions. It was therefore appropriate to make a suspended imprisonment order, rather than a conditionally suspended imprisonment order, in respect of the State offence.
The appellant also applied for bail pending the determination of the appeal. That application was adjourned to the hearing of the appeal. Given the determination of the appeal shortly after the hearing, the bail application became redundant and was dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZMM
Research Associate/Orderly to the Honourable Justice Mitchell5 AUGUST 2019
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