De Mouilpied v The State of Western Australia
[2023] WASCA 22
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DE MOUILPIED -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 22
CORAM: BUSS P
MAZZA JA
HEARD: 29 JULY 2022
DELIVERED : 7 FEBRUARY 2023
FILE NO/S: CACR 29 of 2022
BETWEEN: PETER JAMES DE MOUILPIED
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BARBAGALLO DCJ
File Number : IND 2054 of 2021
Catchwords:
Criminal law - Leave to appeal against sentence - Appellant convicted on pleas of guilty of one count of producing child exploitation material, 10 counts of indecent dealing with a child of or over 13 years and under 16 years, two counts of doing an indecent act in public and one count of possessing child exploitation material - Whether sentencing judge made express errors in her findings - Whether sentence of 2 years 10 months' immediate imprisonment for offence of producing child exploitation material was manifestly excessive - Whether total effective sentence of 3 years 5 months' immediate imprisonment infringed first limb of totality principle
Legislation:
Criminal Code (WA), s 203(1)(a), s 218, s 220, s 321(4), s 321(8)(a)
Result:
Leave to appeal refused
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | J Jackson |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | James Jackson Criminal Defence |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
CDL v The State of Western Australia [2022] WASCA 18
Kabambi v The State of Western Australia [2019] WASCA 44
Lyons v The State of Western Australia [2022] WASCA 81
Siriphanuruk v The State of Western Australia [2021] WASCA 221
JUDGMENT OF THE COURT:
This is an application for leave to appeal against sentence. On 25 March 2022, the appellant was convicted on his pleas of guilty in the District Court of 14 offences, being one count of producing child exploitation material, contrary to s 218 of the Criminal Code (WA) (the Code); 10 counts of indecently dealing with a child of or over the age of 13 years and under the age of 16 years, contrary to s 321(4) read with s 321(8)(a) of the Code; two counts of doing an indecent act in the sight of persons who were in a public place, contrary to s 203(1)(a) of the Code; and one count of having possession of child exploitation material, contrary to s 220 of the Code.
On 28 March 2022, Barbagallo DCJ imposed the following sentences:
| Count | Offence | Maximum penalty | Sentence imposed |
| 1 | Producing child exploitation material | 10 years' imprisonment | 2 years 10 months' immediate imprisonment Head sentence |
| 2 ‑ 10, 12 | Indecent dealing with a child of or over the age of 13 years and under the age of 16 years | 7 years' imprisonment | 5 months' immediate imprisonment on each count Each count served concurrently with each other but cumulatively on count 1 |
| 11, 13 | Doing an indecent act in the sight of persons in a public place | 2 years' imprisonment | 2 months' immediate imprisonment on each count Each count served concurrently with each other but cumulatively on count 1 |
| 14 | Possession of child exploitation material | 7 years' imprisonment | 15 months' immediate imprisonment Concurrent |
Her Honour's orders for accumulation and concurrency resulted in a total effective sentence imposed upon the appellant of 3 years 5 months' immediate imprisonment. Her Honour ordered that the appellant be eligible for parole and that the total effective sentence commence on 28 March 2022.
The appellant seeks leave to appeal on three grounds. Shorn of its particulars, ground 1 alleges that her Honour erred in her characterisation of the seriousness of the offending the subject of count 1. Ground 2 alleges that the sentence of 2 years 10 months' immediate imprisonment on count 1 was manifestly excessive. Ground 3 alleges that the total effective sentence infringed the first limb of the totality principle.
For the reasons that follow, none of the proposed grounds of appeal have a reasonable prospect of succeeding. Leave to appeal should be refused on all grounds and the appeal dismissed.
The facts
At the sentencing hearing on 25 March 2022, the prosecutor read aloud an amended statement of material facts. The facts in respect of counts 2 ‑ 13 were straightforward. Her Honour raised some factual issues with the prosecutor and defence counsel in order to clarify the facts and circumstances of counts 1 and 14, in particular, the precise details of how the appellant produced the videos that comprised the child exploitation material (CEM) the subject of count 1 and the content of the videos. Relevantly to count 14, her Honour confirmed that the CEM the subject of count 14 was the same CEM the subject of count 1. It is convenient to first set out the facts of counts 2 ‑ 13 and then counts 1 and 14.
The three victims in respect of counts 2 ‑ 13, whom we will identify as Z, B and J, are all female children. Up to and including 19 August 2021, all three victims were 15 years of age. Between 20 and 23 August 2021, Z and B, but not J, turned 16. The victims all attended the same suburban high school. Every weekday morning during school term, at about the same time, they walked along the street past the appellant's home, which is opposite the school.
Counts 2 and 3
As to counts 2 and 3, on 16 August 2021, Z, B and J were walking to school, as usual, along the street where the appellant lived. The appellant was in the front bedroom of the house, standing at the window which faced into the street. The blinds of the window were open and passing members of the public could see into the appellant's home. While partially clothed, the appellant stood with his right shoulder close to the window. As the three victims approached on the footpath directly opposite his home, the appellant stepped closer to the centre of the window to ensure that the victims could see him. He then began to masturbate his penis with his hand in a fast and aggressive manner in the direction of the children. Two of the three victims observed the appellant's behaviour on this occasion.
Counts 4, 5 and 6
On 18 August 2021, the three victims were again walking to school along the street past the appellant's home. The appellant again masturbated at the window as the children walked by his home. This time, the appellant's behaviour was observed by all three victims.
Counts 7, 8 and 9
On 19 August 2021, while the three victims were walking to school, the appellant again masturbated at the window as the victims walked by his home. The blinds were completely pulled up and the behaviour of the appellant was observed by all three victims.
Counts 10 and 11
On 23 August 2021, the three victims were again walking to school past the appellant's home. As mentioned earlier, Z and B had turned 16 by this time. The appellant again stood close to the window and masturbated as the victims walked by his home. Two of the victims observed the appellant's behaviour. The victim of count 10 is J, who was still aged 15 years.
Counts 12 and 13
On 24 August 2021, the three victims were again walking to school past the appellant's home. The appellant again stood close to his window and masturbated as they walked by. The blinds were completely pulled up and his behaviour was observed by all three victims. The victim of count 12 is J and the victims of count 13 are Z and B.
Counts 1 and 14
On 25 August 2021, the appellant was arrested at his home in respect of the offences the subject of counts 2 ‑ 13. Police officers conducted a search of the appellant's home and located his mobile phone. After the appellant provided access to the phone, police located a number of video clips of CEM. In total, the police found 62 video clips of CEM on the appellant's mobile phone. It was accepted by defence counsel at the sentencing proceedings that the appellant produced all of these videos.[1] Count 1 concerns the appellant's production of the video clips, while count 14 concerns the appellant's possession of them.
[1] ts 17, 25 March 2022.
The appellant produced the 62 videos in the following way. The appellant was a user of an internet chat site called Omegle. Between December 2020 and August 2021, the appellant used his mobile phone to video record interactions that he had via Omegle with female children under the age of 16 years. In these interactions, the appellant and the children could see each other via webcam. The appellant engaged in written dialogue or chat with the relevant child or children. Alternatively, he would engage in written dialogue with an adult old enough to communicate for the child or children. In this way, the appellant would invite the child or children to 'play', that is engage in sexual activity, which included asking them to show him their breasts or genitals or to watch him masturbate, or all of these things. On at least eight occasions the child or children actually engaged in sexual activity at the appellant's request. On the other occasions, the child or children did not engage in sexual activities, but were present and watched the appellant masturbate.
The clips produced by the appellant using his mobile phone showed the appellant's laptop computer screen, which was split three ways. One part contained the chat dialogue, the second part showed the child or children, with or without an adult present, and any activity they engaged in, and the third part showed the appellant masturbating.
The sentencing judge described the content of the eight video clips in which the child or children engaged in sexual activity by reference to the Australian National Victim Image Library (ANVIL) schema. Categories 1 to 6 of the ANVIL schema concern CEM. Relevantly, category 1 includes sexually suggestive images or videos of children where there is no actual sexual activity taking place. Category 2 includes images or videos of non‑penetrative sexual acts between children and solo masturbation by a child. Category 4 concerns images and videos depicting penetrating sexual activity between a child or children and an adult or adults. One video clip produced by the appellant came within category 1; six video clips produced by the appellant came within category 2; and one video clip produced by the appellant came within category 4. The category 4 video clip depicted a child whom the sentencing judge said appeared to be about 4 years old. In the clip, an adult male is seen to penetrate the child's mouth with his penis and then penetrate the child's anus with his penis.
The police also found on the appellant's mobile phone video clips of the appellant masturbating to school children walking past his bedroom window on 23 and 24 August 2020. These videos were not the subject of any of the charges dealt with by her Honour.
After the appellant's arrest on 25 August 2021, he was conveyed to the Fremantle police station where he participated in an electronically‑recorded interview with police. The appellant admitted that he lived in a house directly across the road from a high school, and that his bedroom was at the front of the house and faced onto the road. The appellant admitted that the mobile phone that contained the videos the subject of counts 1 and 14 belonged to him. He also admitted that he frequented the website Omegle. The appellant told police that he was not particularly excited sexually by children and that he did not consider the material on his devices pornography.
The appellant's personal circumstances
Her Honour was provided with a report dated 10 February 2022 by a clinical psychologist, Ms Helen Fowler. We will refer again to this report later in these reasons. The report comprehensively dealt with the appellant's background. Her Honour's summary of the appellant's personal circumstances was derived, in part, from this report.
At the time of the offending and when he was sentenced, the appellant was 50 years of age. His parents remain married and are very supportive of him.
The appellant was employed as a police officer between the ages of 19 and 26 years. Within months of leaving the police force, and still aged 26, he suffered a stroke. Subsequently, he completed a bachelor of nursing. Whilst studying to be a nurse, the appellant worked as a real estate agent. The appellant commenced working as a nurse in about 2008 and continued in that employment until he was arrested.
Prior to his arrest, the appellant had been employed at two children's hospitals as a theatre nurse. None of the appellant's offending is in any way connected with his work as a paediatric nurse. At the time of sentencing, the appellant had begun employment in opal cutting.
The appellant and his ex‑wife were together for 16 years, until their separation. Since that time, he has had two other relationships with adult women. At the time he was sentenced, the appellant was single.
We have already mentioned that the appellant suffered a stroke when he was 26 years old. At that time, it was found that he had a hole in his heart, but this does not appear to have caused any significant long‑term health issues. However, as a police officer and nurse, he has experienced numerous traumatic events, including witnessing and being involved in multiple episodes of violence and suicide. At the time he was sentenced, he was taking prescribed antidepressants.
The appellant has no prior criminal history. Her Honour was provided with a character reference, as well as a letter from the appellant's mother. Both spoke highly of the appellant.
The psychological report
The appellant consulted Ms Fowler for forensic assessment and attended six treatment sessions.
Ms Fowler noted that when the appellant was asked to explain his offending the subject of counts 2 ‑ 13, he reported that the 'risk was attractive' and that he got 'a burst of adrenaline'. The appellant explained to Ms Fowler that the type of behaviour he had engaged in, being exposing himself to teenage schoolgirls, had 'been going on for months'. The appellant said that as the risk of being caught increased, so did his sexual excitement and arousal. The appellant also told Ms Fowler that the victims looked 'shocked' and that the behaviour 'increased [his] heart rate, sexual excitement. Same as when [he] was online'.
Ms Fowler also reported that the appellant's online sexual behaviour began prior to the commission of the offences in the present case. The appellant told Ms Fowler that he had engaged in this form of sexual behaviour towards females within a 'wide age group, 11 to 50 (years old). Never younger'.
The appellant, when asked about the likely impact of his offending on his victims, said that he had not thought about the impact on them at the time. Ms Fowler described the appellant as 'adultifying' his adolescent victims. She noted that, in respect of the significant difference between the children engaging in sexual exploration with each other on the one hand, and an adult encouraging them to engage in sexual behaviour with the adult on the other, he was able to demonstrate some insight and understanding of his distorted thinking on this issue.
Ms Fowler reported that, while the appellant was employed as a police officer, he attended multiple episodes of domestic violence and street assaults and assisted in the recovery of persons who died by suicide. In one incident, the appellant was knocked unconscious by a person he was arresting. In another incident, an assailant tried to remove the appellant's gun from his holster. The appellant also described to Ms Fowler the relentless daily pressure of his work as a nurse.
Ms Fowler observed that the appellant appeared to be able to compartmentalise his emotions. Ms Fowler explained:
That is, at the same time he has work in a role focused on the health and wellbeing of children, he compartmentalised his compassion for young people and his respect for the law in order to be able to sexualise adolescent females to meet his sexual needs. The nature of his offending is completely contrary to the values and principles that have guided his choices regarding his occupations.
Ms Fowler also thought that the trauma the appellant had been exposed to had caused him to become desensitised to confronting imagery, observing that 'CEM does not impact [the appellant] with the same sense of shock or feelings of disdain that it typically does for others'.
Ms Fowler did not offer any opinion as to the appellant's risk of reoffending. However, she did acknowledge that he would benefit from further psychological treatment in the future. She also acknowledged that the appellant had identified that less stressful work would be in his best interests.
The sentencing remarks
Her Honour comprehensively dealt with the facts of the offending, the psychological report and the appellant's personal circumstances, including his physical and mental health. It is unnecessary to repeat these aspects of the sentencing remarks.
The sentencing judge found that the three victims the subject of counts 2 ‑ 13 were vulnerable, having regard to their ages and that they were required to walk, unaccompanied, past the appellant's house to get to school. Her Honour also found that the appellant relied on the victims' vulnerability to commit the offences. She acknowledged that she did not have victim impact statements from the victims, but said that she accepted that the appellant's offending had had some adverse impact on them, although the extent of the impact was unknown.
In respect of the victims depicted in the video clips the subject of counts 1 and 14, her Honour properly observed that the possession of CEM was not a victimless crime. Her Honour said that she had watched a sample of the material possessed by the appellant, which showed 'real children who were requested by [the appellant] to engage in sexual activity which in [her] view was disgusting, degrading and at times physically harmful, to satisfy the desires of people like [the appellant] who create a demand for it'.[2] Her Honour continued:[3]
This kind of demand encourages the exploitation, humiliation and corruption of these young children, and the adverse impact it can have on them is incalculable.
[2] Sentencing remarks ts 8.
[3] Sentencing remarks ts 8.
Her Honour observed that those who produced, possessed and distributed CEM created a demand for it. She described this offending as 'serious'.[4]
[4] Sentencing remarks ts 8.
Her Honour found that the appellant had entered his pleas of guilty at the earliest reasonable opportunity, and gave a 25% discount pursuant to s 9AA of the Sentencing Act 1995 (WA).[5]
[5] Sentencing remarks ts 11 - 12.
Her Honour observed that, although the appellant had initially shown little insight into the impact of his offending on his victims, his insight was improving since undertaking psychological treatment. Her Honour found that the appellant was remorseful for his offending.
Her Honour acknowledged, but was unable to accept, defence counsel's submission that the appellant posed a low risk of reoffending. Her Honour said that it was, in effect, too early to be able to form views as to the appellant's prospect of rehabilitation or to assess his risk of reoffending.
With respect to counts 2 - 13, her Honour described the offending as 'repetitious' and 'calculated'. She accepted that these offences did not involve any physical contact with the victims, nor did they involve any kind of grooming or verbal dialogue with them.[6]
[6] Sentencing remarks ts 13 - 14.
With respect to counts 1 and 14, her Honour made six observations, as follows:[7]
In relation to counts 1 to 14, that is, the production and possession of child exploitation material, there are a number of observations I wish to make. Firstly, by the chat communications you engaged in with the children, you procured the children to engage in sexual activity. Some did, some didn't. But by this conduct you have personally engaged in behaviour that is disgusting and degrading to these children.
No child should be procured or encouraged to engage in this sexual behaviour, and it's particularly concerning, with some of the children involved being as young as, at least one child being four years of age, and another being around 11 years of age. By this conduct you have exploited, humiliated and corrupted these children with invitations to engage in deviant or perverse behaviour for children of that age.
Secondly, you then masturbated yourself and exposed the children to that sexual behaviour. Again, no child should be exposed to that conduct, and in your case, very deliberately so. Thirdly, you then recorded all of that conduct on your mobile telephone. You were the instigator, director and filmmaker, the producer of your own child exploitation material to do with it as you saw fit.
Every time you view that footage, you are continually re‑victimising the children involved. You may not have touched the children in this process, but you did everything but have physical contact with them.
You may not have known the children, but they are obviously real children. In some cases, as I say, very young children as young as four. One of the children held herself out to be 11 years of age, which she communicated to you and which was consistent with her appearance. But that didn't bother you.
Fourthly, at least one of the video clips was classified as category 4 and depicted what appears to be a child as young as four years old being penetrated in the mouth and anus by an adult male's penis. You masturbated to that.
Fifthly, you engage[d] in this behaviour on 62 occasions. You have produced a not so insignificant number of video clips. Some of those occasions, there was more than one child present. So by this conduct, you have exposed a large number of children to highly sexualised behaviour, spreading the exploitation, humiliation and corruption of those children, and you have continued to possess those video clips to do with as you wish, to enjoy watching over and over again.
Sixthly, the children involved were vulnerable by their circumstances. Vulnerabilities you preyed upon in order to commit these offences in the way that you did for as long as you did. The fact that you were not actually in the same room as the victims of your offending in counts 1 and 14 is of little moment. You didn't have to touch any of these children to secure their cooperation.
[7] Sentencing ts 14 - 15.
Having made these observations, her Honour then said that she was satisfied that count 1 'is a very serious offence and is not offending at the lower or lowest level end of the scale of offending of this kind'. It is this finding which is the subject of ground 1 in this appeal. Later in her sentencing remarks, her Honour said that count 1 'is the most serious of your offending'.
Her Honour found that the only appropriate sentences were terms of imprisonment. After announcing the individual terms of imprisonment and the orders for accumulation and concurrency, she imposed a total effective sentence of 3 years 5 months' imprisonment. Her Honour said that the offending was too serious to suspend imprisonment and thus ordered the total effective sentence to be served immediately.[8]
[8] Sentencing remarks ts 16.
General appellate principles
The general principles concerning sentencing appeals are well‑known and have been stated in many cases in this court. We adopt without repetition the statement of principles made by this court in Kabambi v The State of Western Australia.[9] Ground 1 is an allegation of express error, while grounds 2 and 3 allege implied error.
[9] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
Ground 1 - express error
Ground 1 is as follows:
1.The learned sentencing judge erred in her characterisation of the seriousness of the offending, the subject of count 1.
Particulars
a.her Honour erred in finding that the offending was not at the lower end of the scale of offending of this kind;
b.her Honour erred in finding that the offending was not unusual;
c.her Honour erred in finding the offending occurred on 62 separate occasions; [and]
d.as a result, an excessive sentence was imposed for count 1.
The submissions made on appeal in support of this ground essentially repeat submissions that were made by defence counsel before the sentencing judge, which her Honour rejected. It is said that her Honour erred in characterising count 1 as a 'very serious offence'. The appellant contends that the offending the subject of count 1 was 'at the lower end of the scale' of offending of this kind. It is also submitted that her Honour should have found that the offending committed by the appellant was 'unusual', rather than stating, as she did, that the offending was 'very usual' and of a type commonly seen every day in the District Court.
The appellant submitted that the offending that constituted count 1 was at the lower end of the scale and was unusual because:
(a)no category in the ANVIL schema anticipates the depiction of children 'only observing' an adult male masturbating on an internet chat site, as usually adults and children are physically present in the same location;
(b)although the CEM involved the exploitation of children, there was 'no physical exploitation or coercion of any of the children by the appellant';
(c)the vulnerability of the victims was reduced because they could have 'simply terminate[d] the chat to escape the situation', in contrast with situations of physical control and coercion;
(d)there was no evidence that the appellant intended to sell or distribute the CEM, or that he would profit from it; and
(e)there are no factually comparable appellate cases.
It was further submitted by the appellant that her Honour erred in finding that the appellant had engaged in the conduct the subject of count 1 on 62 separate occasions. This is because some of the video clips involved different portions of the same incident and some of the videos appeared to be of the same child.
Ground 1 - disposition
Ground 1 has no reasonable prospects of succeeding for the following reasons.
A sentencing judge's characterisation of offending, for example, by stating that an offence was 'serious' or 'very serious', is an evaluative judgment and not a finding of fact. As this court recently explained in Lyons v The State of Western Australia,[10] a challenge on appeal to a judge's characterisation of offending is better seen as a particular of a ground that alleges manifest excess. Counsel for the appellant accepted this at the appeal hearing and suggested that the error alleged in ground 1 is better dealt with as a particular of ground 2.[11] This is sufficient to dispose of the ground. However, in our opinion, for the reasons given in her sentencing remarks and particularly having regard to the observations her Honour made, which are quoted at [42] above, her Honour did not mischaracterise the seriousness of the offending the subject of count 1.
[10] Lyons v The State of Western Australia [2022] WASCA 81 [67].
[11] Appeal hearing ts 2.
It cannot reasonably be said that the offending the subject of count 1 was at the lower or lowest end of the scale of offending of its kind. Over an extended period of time, the appellant produced 62 video clips in which he filmed himself masturbating while a significant number of young children watched. The appellant's behaviour had the capacity to disturb, shock and corrupt his young victims. Moreover, eight of the video clips involved the appellant enticing children, who were very young, to engage in sexual behaviour. The worst instance was the video clip the appellant produced that showed a very young child being sexually penetrated twice by an adult.
Although the appellant was not in the same room as his child victims, nor did he touch them, the use of video chat rooms to remotely entice victims to engage in sexual behaviour or to watch an adult engage in sexual behaviour involves serious and substantial criminality. It is conduct that must be deterred in order to protect vulnerable children. Contrary to the appellant's submissions, children cannot be assumed to have the capacity to simply 'terminate the chat'.
It is clear from the report prepared by the clinical psychologist, Ms Fowler, that the appellant produced the CEM for his sexual gratification and for the thrill it provided. While there is nothing to suggest the appellant intended to distribute the CEM he produced, had the appellant intended to distribute the CEM, whether or not for profit, his offending would have been worse. The absence of these circumstances does not mean that his actions did not constitute serious, or very serious, offending.
As to the contention that the offending was 'unusual', the circumstances in which sexual offences are committed are highly variable. Little is to be gained by characterising such offending as 'unusual'. What matters is what an offender actually does. Merely because some may regard an offence as 'unusual' does not provide a basis for leniency. In any event, it is not unusual, as in this case, for offenders to use internet chat sites to entice children to engage in sexual behaviour or to watch an offender engage in sexual behaviour. Nor is it unusual for offenders to record their offending. Any absence from the ANVIL schema of a particular kind of offending does not make the conduct unusual nor provide a basis for leniency.
Contrary to the appellant's submissions, her Honour did not state in her sentencing remarks that the offending occurred on 62 'separate' occasions. To be clear, her Honour did not use the word 'separate'. Her Honour said that the offending involved 62 occasions. When the sentencing remarks are read as a whole, in context, her Honour was stating no more than that the appellant, as he accepted, produced 62 video clips.
Ground 2 - was the sentence on count 1 manifestly excessive?
The appellant's submissions in support of ground 2 largely reflect the submissions made in support of ground 1. In essence, the appellant submitted that the sentence of 2 years 10 months' immediate imprisonment imposed on count 1 was manifestly excessive as to length because, the appellant claimed, the offending was towards the lower end of the scale of seriousness and having regard to the mitigating factors identified by the sentencing judge.
Ground 2 - disposition
Ground 2 has no reasonable prospects of succeeding for the following reasons.
The offence the subject of count 1 was subject to a maximum penalty of 10 years' imprisonment.
Contrary to the appellant's submissions and for the reasons we have already given, the offending was not at the lower end of the scale of seriousness. Her Honour correctly characterised the offending the subject of count 1 as very serious. As already noted, the offending was deliberate, sustained and exploitative of vulnerable young children. The appellant subjected a substantial number of victims to inappropriate sexual behaviour on his part in an attempt to entice them to engage in the same or more serious sexual behaviour. The appellant was successful in his attempts with respect to the eight video clips described in [16] above. Of these, the category 4 video clip involved penetrative sexual activity between an adult and a very young child.
General deterrence was an important sentencing factor in respect of count 1 and all of the appellant's offending. Her Honour made no specific finding as to personal deterrence. However, given his desensitisation to CEM and his ability to compartmentalise his criminal behaviour from his otherwise law‑abiding behaviour, the need to provide for personal deterrence cannot be ignored.
In support of ground 2, the appellant referred to Siriphanuruk v The State of Western Australia[12] and CDL v The State of Western Australia.[13] Both cases are distinctly different from the present case. The outcomes do not assist the appellant. In any event, two cases do not establish any range of sentencing. Sentencing standards for the offence of producing CEM are emerging.
[12] Siriphanuruk v The State of Western Australia [2021] WASCA 221.
[13] CDL v The State of Western Australia [2022] WASCA 18.
We accept that there were substantial mitigating factors, including the appellant's plea of guilty, his prior good character, his remorse and the matters referred to in Ms Fowler's report.
When all of the relevant facts and circumstances, including the mitigating factors, are evaluated, it is clear that the sentence imposed on count 1 properly reflected the seriousness of the appellant's offending. Implied error has not been established. The sentence is not manifestly excessive.
Ground 3 - did the total effective sentence infringe the first limb of the totality principle?
The appellant submitted that the additional 7 months' imprisonment that was imposed upon the appellant having regard to counts 2 ‑ 13 resulted in a total effective sentence which infringed the first limb of the totality principle. In essence, it was submitted that the conduct the subject of counts 2 ‑ 13 fell towards the lower end of the scale of seriousness, was similar in nature to the offending the subject of count 1 and occurred during the same period in which count 1 occurred. Further, the offending did not involve any threats or attempts to engage personally with the victims, nor was it targeted. The appellant contended, in effect, that the sentences imposed for these offences should have been ordered to be served concurrently with the sentence on count 1.
Ground 3 - disposition
Ground 3 has no reasonable prospects of succeeding for the following reasons.
The offending the subject of counts 2 ‑ 13 involved deliberate, persistent and highly offensive behaviour towards three separate victims over the course of eight days. The victims were vulnerable children walking to school, as the appellant well knew and relied upon. He engaged in the offending behaviour because it sexually aroused and excited him. As with the appellant's other offending, general and personal deterrence were relevant sentencing factors. Given its separate and distinct nature, the offending required additional overall punishment to the offending the subject of count 1.
In our opinion, the total effective sentence of 3 years 5 months' immediate imprisonment was a proper reflection of the appellant's overall criminality involved in all of the offences, viewed in their entirety, having regard to the circumstances of the case, including the mitigating factors identified by the sentencing judge. Implied error has not been established. The first limb of the totality principle has not been infringed.
Conclusions and orders
None of the proposed grounds of appeal has a reasonable prospect of succeeding. Leave to appeal should be refused in respect of all three grounds. In these circumstances, the appeal against sentence must be dismissed.
The orders that we would make are as follows:
1.Leave to appeal on grounds 1, 2 and 3 is refused.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TDSM
Associate to the Honourable Justice Mazza
7 FEBRUARY 2023
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