HJT v The State of Western Australia
[2020] WASCA 120
•30 JULY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HJT -v- THE STATE OF WESTERN AUSTRALIA [2020] WASCA 120
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 17 JUNE 2020
DELIVERED : 17 JUNE 2020
PUBLISHED : 30 JULY 2020
FILE NO/S: CACR 46 of 2020
BETWEEN: HJT
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: TROY DCJ
File Number : IND 1768 of 2019
Catchwords:
Criminal law - Appeal against sentence - Six counts of using electronic communication with intent to expose a person believed to be under the age of 16 to indecent matter - Total effective sentence of 12 months' immediate imprisonment - Whether miscarriage of justice occurred as a consequence of new evidence which shows true significance of facts which were in existence at time of sentencing - Power of court to admit new evidence - Exceptional hardship to appellant's child caused by incarceration
Legislation:
Criminal Code (WA), s 204B(2)(b)
Result:
Leave to appeal granted
Appeal allowed
Primary judge's sentencing decision set aside
Appellant resentenced
Category: B
Representation:
Counsel:
| Appellant | : | S Vandongen SC |
| Respondent | : | R G Wilson |
Solicitors:
| Appellant | : | Perrella Legal |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Betts v The Queen [2016] HCA 25; (2016) 258 CLR 420
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
House v The King [1936] HCA 40; (1936) 55 CLR 499
Huggins v The State of Western Australia [2018] WASCA 61
R v Hinton [2002] NSWCCA 405; (2002) 134 A Crim R 286
Rinaldi v The State of Western Australia [2007] WASCA 53
S v The Queen [2003] WASCA 309
The State of Western Australia v Johnson [2009] WASCA 224
Wellstead v The State of Western Australia [2019] WASCA 130
REASONS OF THE COURT:
This appeal against sentence was heard on 17 June 2020. After hearing oral argument from counsel, the court unanimously made the following orders:
1.Leave to appeal granted on the ground of appeal added pursuant to the appellant's application in the appeal dated 15 June 2020.
2.Leave to appeal refused on grounds of appeal 1, 2, 3 and 4.
3.The primary judge's sentencing decision is set aside.
4.The appellant is resentenced to 12 months' imprisonment on each count in indictment IND 1768 of 2019.
5.The new sentence of 12 months' imprisonment is suspended for a period of 12 months pursuant to s 76 of the Sentencing Act1995 (WA).
The court said that it would publish the reasons for making these orders at a later date. What follows are our reasons for making the orders.
Background
The appellant was charged on indictment in the District Court with six counts of using electronic communication with intent to expose a person he believed to be under the age of 16 years to indecent matter, contrary to s 204B(2)(b) of the Criminal Code (WA) (the Code). The offences were alleged to have taken place on six separate occasions between 4 March 2019 and 13 May 2019. The maximum penalty for each offence is 5 years' imprisonment.
On 13 March 2020, the appellant was convicted on his pleas of guilty of all six offences. Each offence involved the appellant communicating via an online chat log with people whom he believed were children under the age of 16 years. In fact, the persons with whom the appellant was communicating were undercover police officers using child personas. Counts 1 to 5 concerned a child persona aged 14 years. Count 6 concerned a child persona aged 13 years.
On 13 March 2020, Troy DCJ imposed a term of 12 months' immediate imprisonment on each of the six counts. His Honour ordered that the sentences be served concurrently and that the appellant be eligible for parole. Thus, the total effective sentence imposed upon the appellant was 12 months' immediate imprisonment with parole eligibility. The sentences were ordered to commence on 13 March 2020.[1]
[1] ts 45.
Initially, the appellant relied on four grounds of appeal, as follows:[2]
[2] WAB 7.
1.The learned sentencing Judge erred in the exercise of his discretion by concluding that it was not open to make an order that the terms of imprisonment be suspended, in part because there needed to be 'an element of punishment'.
2.The learned sentencing Judge erred in the exercise of his discretion by concluding that it was not open to him to take into account the degree of hardship that would be occasioned to members of the appellant's family as a result of a term of immediate imprisonment being imposed.
3.The sentencing Judge erred in the exercise of his discretion by ordering that the sentences of 12 months imprisonment for each of the offences be immediately served, in that such sentences were manifestly excessive.
Particulars
The individual sentences were manifestly excessive having regard to the maximum sentence prescribed by law for the offence, the standards of sentence 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 appellant.
4.The learned sentencing Judge erred in imposing an aggregate sentence of 12 months imprisonment to be immediately served, which sentence did not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to all relevant circumstances including those referable to the offender personally.
On 4 May 2020, an urgent appeal order was made.[3] On 2 June 2020, an order was made referring the question of leave to appeal on the abovementioned grounds to the hearing of the appeal.[4]
[3] WAB 5.
[4] WAB 4.
On 15 June 2020, the appellant filed an application in an appeal seeking two orders: first, to add a further ground of appeal; and, second, to adduce additional evidence pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA), in the form of two affidavits of the appellant's wife, S, sworn respectively on 22 April 2020 and 15 June 2020, and an affidavit by a paediatrician, Dr Richard Christie, sworn 22 April 2020.
The respondent did not oppose the application.[5] Orders were made in accordance with the application.[6]
[5] Appeal ts 2.
[6] Appeal ts 3.
At the hearing of the appeal, the respondent did not seek to cross‑examine Ms S or Dr Christie on their affidavits and did not challenge their contents. In addition to the affidavits, a minute of agreed facts, dated 17 June 2020, was handed to the court. By consent, leave was given to the parties to rely upon the contents of this document.[7]
[7] Appeal ts 4.
The additional ground of appeal is in the following terms:
Since the appellant was sentenced, new evidence has been discovered that tends to show the true significance of facts which were in existence at the time of sentence and, had it been known by the learned sentencing judge at the time of sentencing, would have resulted in a different sentence being imposed upon the appellant.
Particulars
At the time the appellant was sentenced, the fact that C suffered from autism spectrum disorder was known to the sentencing judge but the effect that the incarceration of the appellant would have on C and his mother was not properly appreciated at that time.
The facts of the offending
The appellant took no issue with the statement of material facts that was read by the prosecutor at the sentencing hearing.[8] Those facts may be summarised as follows.
[8] ts 9 - 12, 23.
On various dates between 4 March 2019 and 13 May 2019, the appellant engaged in online conversations using a chat application called Kik under the profile name 'decentguycasanovaperth'.[9] He used this profile name to engage in online conversations with people whom he thought were two girls. Unbeknown to him, each was a police officer who had adopted a child persona. The child persona the subject of counts 1 to 5 was said to be 14 years old. The child persona the subject of count 6 was said to be 13 years old. At all material times, the appellant was 35 years old.
[9] ts 9.
As to count 1, on 4 March 2019, during a chat with the 14‑year‑old child persona, the appellant asked the child persona such questions as whether she had wondered what it would be like to have sex; whether she had ever orgasmed; and whether she had ever watched a man masturbate.[10]
[10] ts 9.
As to count 2, the appellant asked the child persona whether she owned a G-string, how she would feel about being naked with him, and whether she would like to perform fellatio on him.[11]
[11] ts 9.
As to count 3, on 11 March 2019, the appellant asked the child persona to describe what type of underwear she was wearing and whether she would like him to perform cunnilingus on her.[12]
[12] ts 9 - 10.
As to count 4, on 24 April 2019, the appellant sent to the child persona two photographs of him dressed in tracksuit pants, underneath which his erect penis was apparent. In one photograph, the appellant is holding his erect penis over his pants. In neither photograph is his penis actually displayed. Accompanying the photograph of the appellant holding his erect penis, the appellant asked the child persona to show him her 'undies'. Accompanying the second photograph, the appellant stated, 'I think I want you to suck my cock'.[13]
[13] ts 10.
The appellant also sent the child persona three internet web‑links to pornographic videos showing different females performing fellatio, and told her that 'she needs to watch a bit of porn'.[14]
[14] ts 10.
As to count 5, on 28 April 2019, the appellant asked the child persona if she would like to see pictures of his penis, and if she had ever 'shown a guy [her breasts]'.[15] The appellant then sent the child persona two pictures of him standing in his tracksuit pants displaying his covered erect penis, and asked her sexually explicit questions.[16]
[15] ts 10.
[16] ts 10.
As to count 6, between 5 March 2019 and 21 May 2019, the appellant communicated with a different police officer who had assumed the identity of a 13‑year‑old girl. During these conversations, the appellant acknowledged the age of the child persona and made numerous sexual comments towards her. On 13 May 2019, during an online chat with the child persona, the appellant made a series of sexually explicit comments and asked very similar questions to those he had asked the child persona the subject of counts 1 to 5. The appellant also sent the child persona two internet web‑links, inviting her to view a video depicting a female performing fellatio on a man and then engaging in full sexual intercourse. The second video shows a male and female performing oral sex on each other, then engaging in sexual intercourse.[17]
[17] ts 11.
On 30 May 2019, the appellant was arrested at his home in Bassendean. The appellant participated in an audio‑visual record of interview confirming his social media account names, but otherwise answered, 'No comment' to the questions put to him.[18]
[18] ts 11.
The sentencing judge was provided with detailed sentencing submissions by defence counsel and expert reports written by consultant forensic psychiatrist, Dr Mark Hall, dated 29 November 2019, forensic psychologist, Dr Tarmala Caple, dated 9 March 2020, and a paediatrician, Dr Richard Christie, dated 18 February 2020.
The appellant's personal history
The appellant was 35 years old when sentenced. He is married and has two sons, M and C. C, who was almost 6 years old at sentencing, was diagnosed with autism in August 2017.[19]
[19] Dr Christie's report.
The appellant was born outside Australia and had a happy and affectionate childhood. Despite being dyslexic, he completed year 12 and studied accounting at university. Up until his incarceration, he had been consistently employed as an accountant. The appellant has no prior criminal history. He has the ongoing support of his wife and parents.[20]
[20] Dr Hall's report, 3.
In late November 2019, the appellant voluntarily engaged in psychological counselling with Dr Caple to address: 'sexual issues, behavioural regulation and impulse control, and self‑awareness with regard to his underlying emotional states and needs'.[21]
[21] Dr Caple's report, 1.
The appellant attended seven counselling sessions with Dr Caple between 27 November 2019 and 5 March 2020.[22]
[22] Dr Caple's report, 1.
According to Dr Caple, the appellant's offending behaviour is best characterised 'by an underlying fantasy‑driven motivation whereby sexual interactions online are the foci'.[23] In Dr Caple's opinion, the appellant's offending is fantasy‑driven and not contact‑driven. In other words, the appellant is the kind of offender whose sexual and social needs are met through online communications with adolescents, with no express intent to meet offline.[24]
[23] Dr Caple's report, 2.
[24] Dr Caple's report, 2.
Dr Caple described the main contributing factors to the appellant's offending behaviour as follows:[25]
The main contributing factors to [the appellant's] online behaviour [are] his reliance on sex as a coping mechanism for managing periods of stress and low mood, difficulty having his needs for intimacy met leading to loneliness and low self‑esteem, and his excessive need for social approval to maintain his self‑esteem needs. Interacting with an adolescent persona online was less threatening to [the appellant's] fragile sense of self and the sexual nature of the interactions provided self‑soothing and esteem boosting benefits. He appears to have created a more confident, worldly persona online and engaged in behaviours he would not normally do in his offline life. The online disinhibition effect which is a loosening of social restrictions and inhibitions that are normally present in face‑to‑face interactions when individuals spend time online is likely to have been a factor in his behaviour. [The appellant's] prosocial orientation and general self‑regulation appears to be sufficiently strong to inhibit him from acting upon the online fantasy he created.
[25] Dr Caple's report, 2.
Dr Caple stated that the appellant had commenced an internet sex offender treatment program which comprises up to 30 treatment sessions.[26] She described the appellant as being in the early stages of treatment, but stated that he had meaningfully engaged in intervention and was making good progress.[27]
[26] Dr Caple's report, 3.
[27] Dr Caple's report, 3.
In his report, Dr Hall set out the appellant's personal and social history. In doing so, he described C as having been diagnosed with 'high‑functioning autism spectrum disorder'[28] and that Ms S had given up her job to raise the children. The appellant told Dr Hall that he has experienced considerable stress and anxiety as a result of the challenges posed by C's needs.[29]
[28] Dr Hall's report, 3.
[29] Dr Hall's report, 3.
The appellant told Dr Hall that there had been no intimacy in his marriage in the five years since C was born and that he had taken to chatting with adult women on various online platforms, a habit which became addictive and all‑consuming to him. The appellant told Dr Hall that he had not engaged with the child personas out of any sexual interest in children. Rather, the appellant said that his behaviour was caused by 'an escalation of need and loneliness' as well as 'a lack of options at the time'.[30] As to the content of the messages, the appellant said, 'It was a fantasy … but it was a physical impossibility … it would never have happened'.[31]
[30] Dr Hall's report, 5.
[31] Dr Hall's report, 5.
Dr Hall characterised the appellant as 'a complex individual best described as an enigmatic collection of varied and, at times, internally inconsistent traits in the absence of any intention or obfuscation or misdirection'.[32] According to Dr Hall, it was not possible to make any categorical diagnoses. The appellant had some underlying obsessive‑compulsive personality traits, problems with impulse control and a history of sexual preoccupation and compulsive use of pornography.[33] Dr Hall noted that the cessation of intimacy within the appellant's marriage was compounded by work stress, the special needs of C, and personal difficulties experienced by his wife in relation to caring for C.[34]
[32] Dr Hall's report, 6.
[33] Dr Hall's report, 6.
[34] Dr Hall's report, 7.
Dr Hall did not make a diagnosis of paedophilia or any other paraphilia because the appellant's offending occurred over a period of less than the six months required for a formal diagnosis. However, the appellant's offending behaviour raised the possibility that he may have been drifting toward, and reinforcing, a developing paedophilic interest that was interrupted by his arrest.[35] Dr Hall noted that there was insufficient evidence to support a diagnosis of autism spectrum disorder for the appellant.[36]
[35] Dr Hall's report, 7.
[36] Dr Hall's report, 7.
Dr Hall assessed the appellant's risk of reoffending in a similar manner in the future as low.[37]
[37] Dr Hall's report, 9.
Dr Christie's report in respect of C
Dr Christie's report of 18 February 2020 is brief and provides little detail. He confirmed that C was diagnosed with autism in August 2017, and requires substantial support for deficits in social communication and a lower level of support for restrictive repetitive behaviour. Dr Christie noted that C had received intensive therapy through the Autism Association and had made 'significant progress with all areas of functioning … expedited through intensive therapy as well as home‑based intervention in which [the appellant] has played a significant role'.[38] Dr Christie made some observations concerning the appellant's older son, M, and then concluded his report as follows:[39]
I would have significant concerns about the effect of possible incarceration [of the appellant] and its effect on his children, particularly C, because of his autism and difficulties dealing with change, particularly sudden change and transitions. [The appellant] has been an important role model for both of his children and I would consider it appropriate for leniency to be exercised in terms of any judicial sentencing given the family situation and specific requirements of C, in particular, but notwithstanding the needs of M in terms of the importance of the continuity of [the appellant's] presence in their lives.
[38] Dr Christie's report.
[39] Dr Christie's report.
Counsel's submissions before the sentencing judge
Counsel for the appellant submitted to the sentencing judge that, having regard to the appellant's favourable antecedents, his remorse, the insight that he has developed into his offending, his rehabilitation and his low risk of reoffending, together with the hardship a term of immediate imprisonment would have upon his family and, in particular, C, suspended terms of imprisonment were appropriate.[40]
[40] ts 34 - 37.
The prosecutor submitted to the sentencing judge that, having regard to the seriousness of the offending and the need for general deterrence, the only appropriate penalty was a term of immediate imprisonment, notwithstanding the mitigating factors identified on behalf of the appellant.[41]
[41] ts 21.
The sentencing remarks
His Honour sentenced the appellant on the basis that he did not intend to actually meet the child personas and that the appellant had no intention of engaging in physical conduct with children. However, his Honour was satisfied beyond reasonable doubt that, at the time of the offences, the appellant had a sexual interest in people whom he thought were two girls aged 13 and 14, respectively.[42]
[42] ts 41.
His Honour identified the following mitigating factors, which he described as providing mitigation 'of a very high order':[43]
(1)The appellant pleaded guilty to all counts. His Honour accepted that the pleas were entered at the first reasonable opportunity and gave a discount of 20%, pursuant to s 9AA of the Sentencing Act 1995 (WA).
(2)The appellant displayed genuine remorse for his offending.
(3)The appellant was a person of prior good character and a first offender.
(4)The appellant's arrest, the police investigation, his prosecution and the consequences would operate, so far as the appellant was concerned, 'as a very powerful personal deterrent'.[44]
(5)The appellant posed a 'very low' risk of reoffending in the same way, having regard to the treatment program described in Dr Caple's report.[45]
(6)The appellant had 'very good prospects of … rehabilitation'.[46]
[43] ts 45.
[44] ts 41 - 42.
[45] ts 42.
[46] ts 42.
In terms of the criminality of the offences committed by the appellant, his Honour noted the period of time over which the offending occurred and the number of contacts the appellant had with the child personas. He remarked that the provision of videos and photographs to the child personas went 'above and beyond the graphic chat logs that are exchanged'.[47] His Honour observed that the appellant misrepresented his age to the child personas as being 23 and that there was a significant disparity between his actual age and the age of the child personas with whom he was communicating.
[47] ts 42.
His Honour correctly referred to the relevant sentencing principles for offences contrary to s 204B of the Code as explained by Buss JA in the The State of Western Australia v Johnson[48] which provide that in general, the dominant sentence considerations are punishment, general and personal deterrence and the protection of vulnerable children from cyber predators.[49]
[48] The State of Western Australia v Johnson [2009] WASCA 224 [95].
[49] ts 43.
His Honour considered the submission put on behalf of the appellant that the hardship that would result to the appellant's family and, in particular, C, if the appellant was to be immediately imprisoned, was such as to place him in the exceptional category of cases where such hardship may be taken into account as a mitigating factor. In substance, his Honour concluded that the offending was too serious to permit him to take into account the hardship that would be caused by the appellant's immediate incarceration.[50]
[50] ts 44 - 45.
His Honour took into account the appellant's 'very difficult family circumstances' at the time of the offending as an explanation, but not an excuse for what he did.[51]
[51] ts 44.
His Honour said the mitigating factors in the case justified a reduction in the length of the terms of imprisonment he imposed.
As to the question of whether he should suspend the terms of imprisonment, his Honour said:[52]
In my view, the seriousness of the offences does outweigh the personal circumstances - your personal circumstances. There must, it seems to me, be an element of punishment. And to suspend the term would be, in my view, a failure of my public duty - or in my public duty.
[52] ts 45.
The additional ground of appeal
It is convenient to deal first with the additional ground of appeal.
The additional ground of appeal relies upon the affidavit evidence referred to in [8] of these reasons.
Ms S's first affidavit
In her affidavit sworn 22 April 2020, Ms S states that:
(a)C was diagnosed with autism spectrum disorder in 2018 at the age of 3.[53]
[53] Ms S's first affidavit, 3.
(b)After C's diagnosis, she was unable to return to work and became C's full‑time carer. She and the appellant struggled financially once he became the family's sole breadwinner.
(c)In order to manage the challenges C faces, strict routines were placed on his day‑to‑day life, in which the appellant played an active role.
(d)Prior to the appellant's imprisonment, the appellant often took C to therapy appointments at the Autism Association in Midland, assisted in C's day‑to‑day routines of feeding, dressing and bathing, and would read every evening to C.
(e)Before the appellant's imprisonment, C attended the 'Little Stars Early Intervention Program' in Midland, where his progress was 'outstanding', a result in which the appellant 'played an integral part'.[54]
[54] Ms S's first affidavit, 3.
(f)The appellant's incarceration has had an immediate and noticeably detrimental impact on C, including that C has significant trouble sleeping and cannot self‑settle. He wakes two or three times during the night, crying because 'daddy is missing'. C is sleep-deprived and increasingly stressed by daily life.
(g)C has demonstrated signs of aggressive behaviour at home and at school. He has gone from being a naturally happy child to being quite withdrawn and sad. C, being unable to understand the reason for the appellant's absence from the household, blames himself. C cannot comprehend concepts of time and distance and consequently thinks that the appellant is coming home each day. The appellant's absence has caused a deterioration in C's mental wellbeing and daily behaviours.[55]
[55] Ms S's first affidavit, 4.
(h)If C hears a male voice outside the front door of the house, he thinks it belongs to the appellant and tries to get out. While Ms S keeps the front door locked, she is fearful that if C somehow got out of the house he would try to seek out the appellant on his own.[56]
(i)C has started to resist going to school and, when he does attend, his teachers have noted that he is not following instructions as well as he used to and is being uncooperative with his peers.
(j)C is showing signs of anxiety. He is chewing on his clothes, his pencil case at school and the blankets on his bed.
(k)C has been complaining of stomach aches, which he tries to relieve by poking his fingers in his mouth to induce vomiting.
(l)C's academic performance at school has deteriorated.
(m)C's anxiety has significantly increased since social visits in the prison where the appellant is housed ceased due to COVID‑19 restrictions.[57]
(n)Following the appellant's imprisonment, she received assistance from the appellant's parents. However, due to their age and the effects of the COVID‑19 pandemic, she is unable to rely on their additional help. Her family reside outside Australia and are unable to fly to Australia to assist her while the appellant is in gaol. She has received some limited assistance from her sister‑in‑law.[58]
(o)She is socially isolated and totally exhausted due to C's lack of sleeping.
Ms S's second affidavit
[56] Ms S's first affidavit, 5.
[57] Ms S's first affidavit, 6.
[58] Ms S's first affidavit, 6.
In her affidavit sworn 15 June 2020, Ms S states that:
(a)C's skill development has further deteriorated since the appellant's incarceration to the point where skills he had mastered up to a year ago have to be retaught;[59]
[59] Ms S's second affidavit, 2 - 3.
(b)C's use of visual supports to assist him to follow a schedule, which ceased when C was aged between 4 and 5 has had to be redeployed;[60]
[60] Ms S's second affidavit, 2.
(c)C refuses to read and his speech has regressed from speaking in sentences to baby babbling;
(d)C has greater difficulty regulating his emotions;
(e)C's 'melt downs' have become more frequent and aggressive in nature;
(f)C has begun hitting Ms S and saying to her, 'I hate you';
(g)C has recently begun self-harming after being told off, by striking himself on the cheek or the forehead, including by, on one occasion, punching himself in the forehead;[61]
(h)she has recently been informed that in Dr Hall's report he described C as having been diagnosed with 'high‑functioning autism spectrum disorder';
(i)C has never been diagnosed as having 'high‑functioning autism spectrum disorder', an expression that she understands is often used to refer to adults (not children) with autism spectrum disorder who can read, write, speak and manage life skills without much assistance;
(j)C is unable to perform a number of functional behaviours without her assistance, including eating food, washing himself, getting dressed, going to the toilet, brushing his hair and brushing his teeth;
(k)the difficulty she has experienced managing C has worsened in the three months since the appellant's incarceration; and
(l)when C thrashes about during a 'melt down' he can be quite strong, and she has been unable to physically control him.
Dr Christie's affidavit
[61] Ms S's second affidavit, 4.
In his affidavit sworn 22 April 2020, Dr Christie confirmed C's diagnosis of autism in terms consistent with the report that was provided to the sentencing judge. Dr Christie stated that C had made significant progress in all areas of functioning as a result of intensive therapy and home‑based intervention, in which the appellant had played a significant role.[62]
[62] Dr Christie's affidavit, 3.
Dr Christie stated that on 2 April 2020, Ms S and C attended his practice where he made observations about C. Dr Christie observed C exhibiting 'demand avoidant/oppositional behaviour' which he said has escalated significantly since the appellant's incarceration.
Dr Christie stated that the appellant's incarceration has caused significant behavioural changes to C which are not unexpected given his autism.
Dr Christie stated that he was concerned about Ms S's mental health given the significant demands that caring for C has on her.[63]
Minute of agreed facts
[63] Dr Christie's affidavit, 4.
The minute of agreed facts referred to in [10] is brief and may be quoted in full, as follows:
a.The appellant's Earliest Eligibility Date is 10 September 2020.
b.As of Monday, 18 May 2020 all students [at C's] Primary School were expected to attend school, except for those students medically referred to learn from home.
c.The Autism Association 'Little Stars, Midland' early intervention services continue to run during the COVID 19 period. Specialist groups, home and school therapy are postponed however, direct therapy is continuing to be offered on a one‑to‑one basis with the child's therapist - with all safety measures in place and time gaps between each child to allow for cleaning of equipment and social distancing.
d.Coles Supermarkets 'Coles Online' is now open to all customers for click and collect and home delivery services.
e.The Department of Justice, Corrective Services advice as at 16 June 2020 is that social visits are still suspended but they are likely to resume within a few weeks. Planning is still underway but the current health advice, which applies to the broader community, will apply when social visits are reinstated. Other contact options remain in place, including free phone calls, additional mail and Skype and E‑visits.
Relevant legal principles
The relevant principles applicable to the entitlement of this court to intervene in the circumstances alleged in the additional ground of appeal were recently stated in Wellstead v The State of Western Australia.[64] What follows is derived from that statement.
[64] Wellstead v The State of Western Australia [2019] WASCA 130 [89] - [99].
This court's power to intervene is not ordinarily enlivened in the absence of a material error of fact or law which can be detected in the reasons for sentence, or which can be inferred from an outcome which is unreasonable or plainly unjust. The errors alleged in grounds of appeal 1 to 4 fall within the ambit of this statement. Once error is established, this court will, unless it remits the matter to the sentencing court, decide for itself the sentence which it considers to be appropriate. If this court, in the independent exercise of its discretion, would impose the same sentence as the sentencing judge, then it will dismiss the appeal, notwithstanding any error detected or inferred. Otherwise, the court may impose a new sentence. However, even where no error of the kind referred to in House v The King[65] is established, this court may interfere to avoid a miscarriage of justice from arising. It is in this category that the additional ground of appeal falls. The High Court in Betts v The Queen[66] recognised, in a similar statutory context to the present, that the New South Wales Court of Criminal Appeal has the flexibility to receive new evidence when it is necessary to do so in order to avoid a miscarriage of justice.
[65] House v The King [1936] HCA 40; (1936) 55 CLR 499.
[66] Betts v The Queen [2016] HCA 25; (2016) 258 CLR 420 [10].
A sentencing judge cannot ordinarily be said to have erred in proceeding in a manner contrary to, or without having regard to, evidence which was not before the sentencing court. A miscarriage of justice may arise from the absence of material evidence before the primary court. However, it is clear that such a miscarriage will not arise in all cases, and that the identification of a miscarriage must be undertaken, consistently with the nature of an appeal, in a manner which does not 'have the practical effect of obliterating the distinction between original and appellate jurisdiction'.[67]
[67] Rinaldi v The State of Western Australia [2007] WASCA 53 [84]; Huggins v The State of Western Australia [2018] WASCA 61 [395] - [396].
Evidence of events subsequent to the time of sentencing may be received by an appellate court to show facts relevant to the sentencing process which were in existence at the time of sentencing, but either not known to the sentencing judge or not properly appreciated at the time. That may occur, for example, where a mental health impairment which existed prior to sentencing is diagnosed or its significance is appreciated only after sentencing has occurred. A miscarriage of justice may arise from the absence of evidence of that kind at the sentencing hearing. However, it must always be borne in mind that an appellate court is not entitled to intervene upon the basis of events which have occurred since the sentence was imposed and which are unrelated to facts in existence at the time of sentencing. It is not the function of this court to fulfil a continuing supervisory role over the effect of imprisonment upon an individual.
Hardship caused to an offender's family
The additional ground of appeal focuses upon new evidence relevant to the hardship being suffered by C and his mother caused by the appellant's incarceration. The general principle is that hardship caused to an offender's family by imprisonment of an offender will only be taken into account in the sentencing process in exceptional cases. In all cases, whether and to what extent it may be taken into account depends upon the gravity of the offence and the circumstances of the case. The more serious the offence, the less the court has the capacity to mitigate punishment having regard to hardship to an offender's family. This is particularly so in a case where the predominant sentencing considerations are personal and general deterrence. The period over which the offences were committed may also be a relevant consideration.
Each case where exceptional hardship is alleged requires a consideration of its own particular facts and circumstances. For example, in S v The Queen,[68] the appellant was convicted after trial of one count of attempting to pervert the course of justice. The offence committed by the appellant was described by Miller J as 'undoubtedly a very serious one'[69] in which the appellant interfered in a police investigation of alleged sexual offences against a 7‑year‑old child. She did so by falsely creating evidence that the alleged offender had admitted to sexually penetrating the child victim. The appellant was the mother of a 5‑year‑old child with an intellectual disability and autism. Medical evidence tendered to the sentencing judge, as well as subsequent reports provided to the Court of Criminal Appeal, showed that the 5-year-old child required the care of both of his parents, including the appellant. Miller J considered that the sentencing judge had 'underemphasised' the expert evidence[70] and that the case was 'an example of the need to draw back in mercy'[71] which justified the imposition of a suspended term of imprisonment.
[68] S v The Queen [2003] WASCA 309.
[69] S v The Queen [5].
[70] S v The Queen [18].
[71] S v The Queen [30].
In contrast, in R v Hinton,[72] the respondent, while employed by Centrelink, committed 16 counts of defrauding the Commonwealth over a period of about nine months of a sum totally $78,593.77. The respondent was the mother of a young child who had severe behavioral problems and emotional issues. Evidence was tendered to the sentencing judge to the effect that a separation from the respondent was not in the child's best interests. The sentencing judge found that the respondent was the only person who could properly care for her daughter. He sentenced the respondent to a term of imprisonment of 2 years 6 months for each offence, but ordered that she be released immediately on a good behaviour recognisance order for a period of 2 years 6 months. The Court of Criminal Appeal allowed the Crown's appeal against the sentence, in substance, because a suspended sentence was inappropriate punishment for the offences committed by the appellant and the breach of trust involved.[73] The court substituted the primary judge's sentence with a term of 2 years 2 months' immediate imprisonment with an order that the respondent be released after serving 14 months of that sentence. The court ordered that the sentence be served by way of periodic detention.
[72] R v Hinton [2002] NSWCCA 405; (2002) 134 A Crim R 286.
[73] R v Hinton [35].
Submissions in support of the additional ground of appeal
Senior counsel for the appellant accepted that, at the time the appellant was sentenced, it was known that C had been diagnosed with autism. However, senior counsel submitted that the additional evidence showed that C's autism, in particular, the fragility of his condition as at the sentencing date, was not fully appreciated.[74] Senior counsel also submitted that, while COVID‑19 had been declared a global pandemic at the time of sentencing, the adverse consequences of social distancing upon C's mother and her ability to care for C were not fully appreciated.[75] Senior counsel submitted that, as a result of either or both of the abovementioned factors, neither of which constituted error on the part of the sentencing judge, a miscarriage of justice had occurred.[76]
[74] Appeal ts 8 - 9.
[75] Appeal ts 8 - 9.
[76] Appeal ts 9.
Senior counsel submitted that the new evidence constituted exceptional hardship and justified this court intervening to impose a wholly‑suspended sentence. The court was informed that if a suspended sentence was imposed, the appellant would reside at his family home and would continue his rehabilitation program with Dr Caple.[77]
[77] Appeal ts 14.
Counsel for the respondent submitted that the new evidence sought to be adduced by the appellant was not, in substance, materially different from the evidence that was before the sentencing judge. As counsel put it, '[the additional evidence] simply reinforces the character of what his Honour was well aware as having been before him at the time of the … sentencing'.[78] Counsel for the respondent referred to the effects of COVID‑19 as being 'something of a dynamic situation' which did not preclude Ms S from accessing the support in relation to C's care that was available to her in the appellant's absence. Counsel submitted that the sentencing judge was aware of the difficult behaviours exhibited by C, and that what had occurred since sentencing was 'still in the nature of [these] difficult behaviours'.[79]
[78] Appeal ts 16.
[79] Appeal ts 21.
Disposition
In our opinion, the additional ground of appeal has been made out.
At the time of sentencing, the sentencing judge was aware of C's autism and that the appellant's incarceration was likely to have some adverse impact upon C. However, the information before his Honour did not enable him to fully appreciate the fragility of C's condition, the extent to which C's previously good progress would regress in the appellant's absence, and the very significant role the appellant played in C's care and the promotion of his wellbeing.
In our opinion, the new evidence adduced by the appellant is admissible in this appeal because it demonstrates that his Honour was not properly informed of very important facts in relation to C's autism, including the very significant impact of the appellant's incarceration on C's condition. The new evidence, particularly the evidence contained in Ms S's affidavit of 15 June 2020, shows that C's condition has very significantly regressed since the appellant's incarceration in a way which was not foreseen at the sentencing. It may be inferred from all of the material which has been provided to this court that C's regression has been caused, or has been very substantially caused, by his father's absence, for which C, unjustifiably, blames himself. It is unnecessary to repeat the examples given in Ms S's latest affidavit of the deterioration in C's condition. It is of concern that C's learning and speech, sleep patterns and ability to be disciplined and controlled have badly deteriorated. Disturbingly, he has begun to self-harm. C's regression has come at a significant time in his development and there is a substantial risk that C's development may be irreparably impaired unless the regression he has experienced since the appellant's imprisonment is not arrested.
It may now be seen that the nature and extent of the impact of the appellant's imprisonment on C is such as to bring the present case within that rare category where exceptional hardship to an offender's family becomes a mitigating factor. We have been persuaded that a miscarriage of justice has occurred and that this court should intervene and impose a different sentence.
Resentencing
Having regard to the serious circumstances of the offending, the mitigating factors identified by the sentencing judge, the exceptional hardship caused to C, and the time the appellant has already served in custody, we are of the view that the only appropriate penalty for each offence is a term of imprisonment of 12 months. However, as required by the High Court's decision in Dinsdale v The Queen[80] and having regard to all of these circumstances afresh, we have been persuaded that the terms of imprisonment should be suspended for a period of 12 months, pursuant to s 76 of the Sentencing Act.
[80] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321.
As the additional ground of appeal has been upheld, it is unnecessary for this court to decide grounds 1 to 4. However, we record that, absent the exceptional level of hardship to C, we would not have intervened to impose sentences different from those imposed at first instance. As was explained to the appellant when the court pronounced orders, the mercy of the court has been extended having regard to the welfare of C and not as a benefit to the appellant.
It is for these reasons that we made the orders referred to at [1] above.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NF
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza30 JULY 2020
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