Dragon v The State of Western Australia
[2019] WASCA 84
•5 JUNE 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DRAGON -v- THE STATE OF WESTERN AUSTRALIA [2019] WASCA 84
CORAM: MAZZA JA
MITCHELL JA
HEARD: 5 JUNE 2019
DELIVERED : 5 JUNE 2019
PUBLISHED : 5 JUNE 2019
FILE NO/S: CACR 22 of 2019
BETWEEN: BRADLEY PEN DRAGON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: QUAIL DCJ
File Number : IND 1735 of 2018
Catchwords:
Criminal law - Sentencing - Commonwealth offences - Using a carriage service to access child pornography material - Whether individual sentences are manifestly excessive - Whether total effective sentence infringes the first limb of the totality principle - Significance of personal deterrence and community protection as sentencing factors in light of serious prior criminal record
Legislation:
Criminal Code (Cth), s 474.19
Result:
Leave to appeal refused
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| Respondent | : | The Director Of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Dragon v The State of Western Australia [2008] WASCA 252
Godfrey v The Queen [2013] WASCA 247
Kenworthy v The Queen [No 2] [2016] WASCA 207
Peters v The Queen [2018] NSWCCA 126
Salkilld v The State of Western Australia [2017] WASCA 168
Trajkoski v The State of Western Australia [2018] WASCA 176
Wagner v The Queen [2018] NSWCCA 124
REASONS OF THE COURT:
At the conclusion of the hearing of the application for leave to appeal, we made orders refusing leave to appeal on all grounds and dismissing the appeal. These are our reasons for making those orders.
Summary
On 31 January 2019, the appellant was convicted, on his early pleas of guilty, of two counts of using a carriage service to access child pornography material, contrary to s 474.19 of the Criminal Code (Cth). He was sentenced to 2 years' imprisonment on count 1, and 2 years 4 months' imprisonment on count 2. The sentences were ordered to be served cumulatively, resulting in a total effective sentence of 4 years 4 months' imprisonment. The appellant was ordered to be eligible for parole after serving 3 years 4 months' of that term. The sentence was backdated to commence on 17 August 2017, taking account of time spent in custody on remand.
The appellant now appeals against his sentences on the grounds that the individual sentences are manifestly excessive, and the total effective sentence of 4 years 4 months' imprisonment infringes the first limb of the totality principle.
For the following reasons, none of those grounds have any reasonable prospect of success.
Circumstances of offending
The appellant was living in a backpackers' hostel after his release from prison on 6 August 2017.
Count 1
The appellant attended another backpackers' hostel between 6.30 pm on 8 August 2007 and 12.36 am the following day. He paid for access to a computer and the internet. Over a period of 4.5 hours, the appellant used the computer and a search engine to search for terms including 'Russian child models', 'Russian pre-teen', 'Russian pre‑teen porn', 'Russian porn incest', 'manga children', 'anime children', 'abused child', 'anime children incest' and 'nude Russian model agencies child'.
During the period of time that the appellant was on the computer he accessed various image and movie files that were child pornography material and depicted children aged between 2 and 16 years. The material accessed included four category 1 images of child exploitation material,[1] 15 category 6 images of child exploitation material and three category 6 video files of child exploitation material downloaded to the computer from the Internet. The appellant viewed the images and movie files on the computer screen.
Count 2
[1] The references to categories are to the CETS classifications referred to in Kenworthy v The Queen [No 2] [2016] WASCA 207[136] - [139]. Category 6 involves animated or virtual depictions of child sexual activity.
At about 5.45 pm on 12 August 2017, the appellant returned to the other backpackers' hostel. He remained there until just after midnight, apart from a brief trip to a nearby supermarket to purchase a USB drive. He paid to access a computer and the internet at the hostel, and spent about 6 hours on the internet. Over the period of time he was using the computer, the appellant used a search engine to search for terms including 'shota baby girls incest' and 'shota baby incest'.
During this period, he accessed various image files that were child pornography material and depicted children aged between 2 and 16 years. The material accessed included over 700 images of child pornography. Approximately 90% of the images were of category 6 and approximately 10% were of category 1. Four images were of category 2, eight images were of category 3 and four images were of category 4. The offender viewed the images and movie files on the computer screen.
Sentencing judge's findings as to the nature of the material accessed
The sentencing judge made detailed findings as to the nature of the images which the appellant viewed, having viewed a representative sample of them.[2] It is unnecessary to summarise that detail in these reasons. It is sufficient to note that, while most of the images and videos were animated, a number showed pictures of young children being subjected to abuse. Other images were voyeuristic images taken of young children in what should have been regarded as innocent situations.
[2] Sentencing ts 88 - 92.
It may be noted that, despite its classification by the prosecution, one of the images which was the subject of count 1 depicted an adult male ejaculating into the face of a real (non-animated) female child under the age of 10 years.[3] Accessing this image significantly aggravated the seriousness of count 1 in a manner not apparent from the prosecution's classification of the images.
Apprehension of appellant
[3] Sentencing ts 89.
The appellant's activities on 12 August 2017 aroused the suspicion of the manager of the internet café, who contacted police. The appellant was arrested on 17 August 2017. He was found with a USB drive which had been plugged into the computers used on 8 and 12 August 2017, but which did not contain any child exploitation material.
When police interviewed the appellant, he said that 'these things just keep popping up when I use the internet'.
The appellant was initially charged with State offences concerning possession of child exploitation material. Those State charges were later withdrawn and substituted with the current counts, to which the appellant promptly pleaded guilty.
Personal circumstances
The appellant was 58 years old at the time of sentencing. He had no contact with his remaining family, and no supports outside the prison system. The appellant's offending had gained him notoriety which had led to him being socially isolated and ostracised in the community. He has significant physical health issues.
The appellant has a very serious criminal record and has spent much of his life in custody. He has a number of convictions for stealing and burglary offences in the eastern states in the 1970s and early 1980s. In 1993, he was sentenced to a long period of imprisonment in Thailand for sexual offences against children. He was released in about 2006, and deported to Australia.
After a period, the appellant moved to Western Australia. On 15 January 2008, after having spent 7 months in custody on remand, he received a sentence of conditionally suspended imprisonment in respect of child pornography offences.
On 5 February 2008 (21 days after the conditionally suspended imprisonment order), the appellant committed a further child pornography offence. On 27 May 2008, he was sentenced in the District Court to serve the conditionally suspended terms concurrently and sentenced to a further 3 months' imprisonment for the offence of 5 February 2008. The further sentence of 3 months' imprisonment was to be served cumulatively upon the conditionally suspended terms, resulting in a total effective sentence of 15 months' imprisonment. The total effective sentence was backdated to 5 February 2008 to take account of time spent in custody on remand.
On 13 November 2008, this court allowed the appellant's appeals against the sentences referred to at [17] and [18] above. The effect of this court's orders, which took account of time spent in custody prior to his sentence on 27 May 2008, was to sentence the appellant to a further 6 months 1 day imprisonment from 27 May 2008.[4] That would have resulted in the appellant being released by the end of November 2008 at the latest.
[4] Dragon v The State of Western Australia [2008] WASCA 252.
The appellant committed further child exploitation material offences between 15 May and 28 July 2009. On 27 August 2010, the appellant was sentenced to a total effective sentence of 34 months' imprisonment, backdated to 28 July 2009 to take account of time spent in custody on remand.
The appellant was released from prison in May 2012. On 7 August 2012, the appellant committed an offence of aggravated assault with intent to rob. The offence involved the appellant entering a car in which an 11 month old baby was sitting in a baby seat, threatening the baby's mother with a kitchen knife and attempting to restrain her. The victim fought back and was able to wrench the knife from the appellant, cutting her hands in the course of doing so. The appellant was sentenced on the basis that he intended to steal the victim's handbag. The appellant was arrested that evening and, on 11 December 2012, was sentenced in the Supreme Court to 5 years' imprisonment, backdated to commence on 7 August 2012.
The appellant was released from prison on 6 August 2017, two days before committing the first of the current offences.
General principles
The appellant's grounds of appeal assert implied rather than express error. The general principles governing appeals contending that error should be inferred on the basis that an individual sentence is manifestly excessive or inadequate, or that a total effective sentence infringes the totality principle, are well established:[5]
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
[5] This statement of the general principles is taken from the judgments of the court in Salkilld v The State of Western Australia [2017] WASCA 168 [48] and in Trajkoski v The State of Western Australia [2018] WASCA 176 [30].
Disposition
The maximum penalty for an offence against s 474.19 of the Criminal Code is 15 years' imprisonment.
The statutory provisions and customary sentencing standards for this offence were reviewed by this court in Kenworthy.[6] The courts have recognised general deterrence as a paramount sentencing consideration. The courts have also recognised the seriousness of this kind of offending, particularly where it involves the abuse and exploitation of children depicted in the images.
[6] Kenworthy [156] - [162], [165] - [182]. See also Peters v The Queen [2018] NSWCCA 126 and Wagner v The Queen [2018] NSWCCA 124.
The appellant submitted, in effect, that the sentencing judge failed to properly take account of his early pleas of guilty, and improperly took into account his pleas of not guilty to the State charges that were ultimately withdrawn. We do not accept that submission. The sentencing judge found that the pleas were entered at the earliest reasonable opportunity and indicated that a significant discount was given in relation to the pleas.[7]
[7] Sentencing ts 99.
The individual sentences and the total effective sentence in the present case may be regarded as comparatively high when regard is had to the number and nature of the images (many of which were animated rather than images of actual children[8]), the fact that the appellant did not disseminate the images, the absence of any profit derived from the offence and the appellant's early pleas of guilty.
[8] As to which, see Godfrey v The Queen [2013] WASCA 247 [59].
However, it is necessary to take account of the appellant's antecedents, which significantly increase the weight to be given to personal deterrence and community protection as sentencing considerations. The appellant is not to be punished again for past offending, and the sentence is not to be increased beyond that which is proportionate to the crime in order to extend the period of protection of society from the risk of future offending. But, as Buss JA observed in dealing with the appellant's 2008 appeal,[9] his antecedents are relevant to determining the sentence which is proportionate to the current crimes for which the appellant is being punished.
[9] Dragon [56] - [61].
In the present case, the appellant's antecedents set his case apart from the other cases dealing with sentences under s 474.19 of the Criminal Code to which we have referred. Community protection is of particular significance in this case. Since 1993, the appellant has been out of custody for five relatively short periods:
(1)From release and deportation to Australia in 2006 to mid-2007.
(2)15 January 2008 to 5 February 2008.
(3)From release in about November 2008 to 28 July 2009.
(4)From release in May 2012 to 8 August 2012.
(5)6 August 2017 to 17 August 2017.
The appellant has committed serious offences, including but not confined to offences involving child exploitation material, on each of the periods of his release.
Having regard to all the circumstances and all relevant sentencing principles, including:
(1)the maximum penalty of 15 years' imprisonment;
(2)the circumstances of the appellant's offending; and
(3)the appellant's antecedents, and the significance of personal deterrence and community protection as important sentencing factors in light of the appellant's prior criminal history,
neither the individual sentences nor the total effective sentence can be regarded as unreasonable or plainly unjust. The individual sentences of 2 years' and 2 years 4 months' imprisonment were not manifestly excessive. The total effective sentence of 4 years 4 months' imprisonment for all the offences bears a proper relationship to the overall criminality involved in all of those offences, having regard to all the circumstances (including those personal to the appellant). The inferred error the appellant alleges is not even arguably established.
There is no challenge to the 3 year 4 month non-parole period. The appellant was fortunate to be given parole in light of his past history. We see no basis on which the appellant could have successfully challenged the length of the non-parole period.
Representation
At the commencement of the hearing, the appellant indicated that he understood that he was to be represented at the hearing by an officer of the Legal Aid Commission. The court had no record indicating that the appellant was to be legally represented. Inquiries by the court with the Legal Aid Commission during a short adjournment of the hearing indicated that legal aid had been granted for the preparation of the documents comprising the Appellant's Case, but not the hearing. We considered it appropriate to proceed to determine the application for leave in these circumstances, where the appellant had been able to effectively articulate his argument in support of the application for leave to appeal.
After the court pronounced orders, but before those orders were perfected, the court received an email from the Commission which cast doubt on the position. The court reconvened so that an officer of the Commission could attend and explain the position in open court, before the orders were perfected.
Mr Robson attended that further hearing and explained that legal aid had been granted for the preparation of an Appellant's Case and for the appeal hearing if leave to appeal was granted. However, Mr Robson indicated that legal aid had not been granted for the hearing of the application for leave to appeal, and the appellant had been informed that he was to be self-represented at the leave hearing.
The appellant was given the opportunity to respond to Mr Robson and make submissions as to whether the orders we had made should be recalled. It was clear from his response that the appellant was aware from discussions he had prior to the leave hearing with Ms King, a lawyer from the Commission, that he would be self-represented at the leave hearing.
In the circumstances, we saw no warrant for any recall of the orders we had made.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ET
Associate to the Honourable Justice Mitchell5 JUNE 2019
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