D'Rozario v The State of Western Australia
[2015] WASCA 171
•2 SEPTEMBER 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: D'ROZARIO -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 171
CORAM: McLURE P
MAZZA JA
HEARD: 7 AUGUST 2015
DELIVERED : 2 SEPTEMBER 2015
FILE NO/S: CACR 54 of 2015
BETWEEN: PAUL ANTHONY D'ROZARIO
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :WAGER DCJ
File No :IND 1418 of 2014
Catchwords:
Criminal law - Leave to appeal against sentence - Sexual offences - Possession of child exploitation material - Failure to comply with reporting obligations under the Community Protection (Offender Reporting) Act 2004 (WA) - Totality - Turns on own facts
Legislation:
Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA)
Community Protection (Offender Reporting) Act 2004 (WA)
Criminal Code (WA)
Sentencing Act 1995 (WA)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Ms S V Jessup
Respondent: No appearance
Solicitors:
Appellant: Timpano Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Nil
McLURE P: This is an application for leave to appeal against sentence.
On 6 March 2015 the appellant was convicted, on his own pleas of guilty, of the following offences the subject of indictment 1418/2014:
-one count of being an adult, used electronic communication with intent to procure M, being a person under the age of 16 years, to engage in sexual activity contrary to s 204B(2)(a) of the Criminal Code (WA) (Code) (count 1);
-four counts of sexual penetration of K, a child of or over the age of 13 years and under the age of 16 years, contrary to s 321(2) of the Code (counts 2, 3, 4 and 5);
-one count of possession of child exploitation material, namely child pornography, contrary to s 220 of the Code (count 6).
Pursuant to s 32 of the Sentencing Act 1995 (WA), the appellant also pleaded guilty to, and was sentenced for, 11 counts of failing to comply with obligations imposed by the Community Protection (Offender Reporting) Act 2004 (WA) (Reporting Act).
On 6 March 2015 the appellant was sentenced by Wager DCJ to 12 months imprisonment on count 1, 3 years imprisonment on each of counts 2 ‑ 5, 12 months imprisonment on count 6 and 6 months imprisonment on each of the 11 breaches of the Reporting Act. The sentencing judge imposed a total effective sentence of 5 years imprisonment. The appellant was made eligible for parole.
The sole ground of appeal is that the total effective sentence breached the first limb of the totality principle. This is a claim of implied, not express, error. The appellant must demonstrate that the total effective sentence is unreasonable or plainly unjust.
The facts of the indictable offences are as follows. In July 2013 police attended the appellant's home address and executed a search warrant. Several electronic devices, including mobile telephones and laptop computers, were seized. Based on the content of the electronic devices, police contacted and obtained statements from the complainants, M and K.
The conduct the subject of count 1 occurred from time to time in the period from May 2009 to October 2009. Contact with M, who was at all material times aged 15, was initiated by the appellant. The appellant and M regularly engaged in telephone and text sex. The appellant was aware of M's age.
The appellant also initiated contact with K who, to the appellant's knowledge, was also aged 15. The offences the subject of counts 2 ‑ 5 were of digital penetration and cunnilingus. The offending occurred in June and July 2010. The offences were representative. Count 6 related to naked photographs of K.
The facts in relation to the breach offences the subject of the s 32 notice are as follows. In May 2007 the appellant was convicted of eight counts, being one count of using electronic communication with intent to expose a person the appellant believed to be under the age of 16 years to any indecent matter, contrary to s 204B(2)(b)(ii) of the Code, six counts of using electronic communication with intent to procure a person the appellant believed to be under the age of 13 years to engage in sexual activity, contrary to s 204B(3)(b)(i) of the Code and one count of possession of child pornography contrary to s 60(4) of the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA). A total effective sentence of 27 months imprisonment was imposed for these offences. Further, as a result of these offences, the appellant is a reportable offender under the Reporting Act.
The Reporting Act breaches related to the appellant's failure to report his unsupervised contact, which was of a sexual nature, with B (aged 16), R (between the ages of 14 and 16 at the time of the contact), N (aged 16), KC (between the ages of 15 and 16), S (between the ages of 15 and 16) and J (aged 16). The remaining breach offences related to the appellant's failure to report the fact that he had, from time to time, reactivated or set up new internet and mobile telephone accounts.
The appellant also had a prior offence of failing to comply with his reporting obligations under the Reporting Act for which he had received a 12‑month intensive supervision order.
The appellant was aged 30 at the time of sentencing. He was raised in a caring and supportive family who continued to support him. He completed tertiary studies in business, obtained a university degree in human resources and was employed as a senior accounts manager between 2009 and 2013.
The appellant commenced psychological counselling in September 2013 and, at the time of sentencing, had attended 11 counselling sessions. He had been in a relationship for nine months prior to sentencing and his
partner (aged 21) was aware of his offending and continued to support him.
The sentencing judge identified the aggravating factors of the indictable offences to include the appellant's conduct in contacting and grooming the victims; the age difference between the appellant and the victims; the appellant's prior criminal record; that the breach offences involved unreported contact with young girls which, whilst not amounting to criminal offences, was similar in nature and manner to his interactions with the victims of the indictable offences; and count 1 was committed when the appellant was on parole.
Mitigating factors include an early plea of guilty, for which the trial judge gave a 25% discount, his qualified cooperation with police at the time of his arrest and his remorse. The sentencing judge also accepted that as a result of his upbringing he was socially isolated and lacked confidence. Further, the appellant had not undertaken the sex offenders treatment programme while in custody for his prior offending or any equivalent programme when on parole.
The first limb of the totality principle requires that the total effective sentence 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. The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than the total of the individual sentences. That is what occurred in this case.
The appellant concedes, as is the case, that there are no relevant comparable cases against which to test the broad consistency of the total effective sentence.
Having regard to all relevant sentencing considerations, including in particular the demonstrated need for personal deterrence, there is no foundation for the claim that the total effective sentence of 5 years is unreasonable or plainly unjust.
Accordingly, leave to appeal must be refused with the consequence that the appeal is taken to be dismissed.
MAZZA JA: I agree with McLure P.
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