HMN v The State of Western Australia
[2015] WASCA 128
•23 JUNE 2015
HMN -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 128
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 128 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:53/2015 | 12 JUNE 2015 | |
| Coram: | McLURE P BUSS JA MAZZA JA | 23/06/15 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Orders made by sentencing judge set aside Appellant resentenced | ||
| B | |||
| PDF Version |
| Parties: | HMN THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Appellant with intellectual disability Sexual morality offences Manifest excess in type |
Legislation: | Criminal Code (WA) |
Case References: | Collins v The State of Western Australia [2007] WASCA 108 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : HMN -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 128 CORAM : McLURE P
- BUSS JA
MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : STEWART DCJ
File No : IND BUN 67 of 2012, IND BUN 50 of 2014, IND BUN 154 of 2014
Catchwords:
Criminal law - Appeal against sentence - Appellant with intellectual disability - Sexual morality offences - Manifest excess in type
Legislation:
Criminal Code (WA)
Result:
Appeal allowed
Orders made by sentencing judge set aside
Appellant resentenced
Category: B
Representation:
Counsel:
Appellant : Mr D S Hunter
Respondent : Mr J A Scholz
Solicitors:
Appellant : Legal Aid (WA)
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Collins v The State of Western Australia [2007] WASCA 108
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
1 McLURE P: This is an appeal against sentence.
2 The appellant is a young adult with an intellectual disability. He suffers from Down Syndrome. On 23 March 2015 he was convicted, on his fast-track pleas of guilty, of seven counts of sexual morality offences involving the use of electronic communications, contrary to s 204B of the Criminal Code (WA) (Code). It is an element of a s 204B offence that the user of the electronic communication be an adult.
3 In particular, on 23 March 2015 the appellant was convicted of three counts in indictment BUN 50/2014, being two counts of using electronic communication with intent to expose a person under the age of 16 years to indecent material and one count of using electronic communication with intent to procure a person under the age of 16 years to engage in sexual activity. These offences occurred between 5 and 6 January 2014.
4 The appellant was also convicted of four counts in indictment BUN 154/2014, being three counts of using electronic communication with intent to procure a person under the age of 16 years to engage in sexual activity and one count of using electronic communication with intent to expose a person under the age of 16 years to indecent matter. These offences occurred between 2 and 15 September 2014.
5 The offences committed by the appellant between 5 and 6 January 2014 breached an 18 month intensive supervision order imposed by Keen DCJ at Bunbury on 7 February 2013 (the ISO). On that date, the appellant was sentenced on four counts of using an electronic communication with intent to procure a child under the age of 13 years to engage in sexual activity, contrary to s 204B of the Code. These offences, contained in indictment BUN 67/2012, were committed over a four day period between 16 and 20 February 2012. As a result of the breach of the ISO, the appellant was resentenced for these offences.
6 On 23 March 2015 the appellant was sentenced by Stewart DCJ to 7 1/2 months immediate imprisonment on each offence in indictments BUN 50/2014, BUN 154/2014 and BUN 67/2012. All sentences were ordered to be served concurrently, resulting in a total effective sentence of 7 1/2 months immediate imprisonment.
7 The sole ground of appeal is that the sentences of immediate imprisonment are manifestly excessive in type. On 1 April 2015 the appellant was granted bail pending appeal.
Factual background
8 In summary, the facts of the offending are as follows. The three offences committed in January 2014 involved one complainant. The appellant, then aged 20, and the complainant, aged 13, having met twice during the Christmas 2013 period in Armadale through mutual friends, became 'friends' on facebook on 31 December 2013. Between 3 and 6 January 2014 the appellant sent numerous sexualised messages on facebook and by SMS to the complainant. The appellant also sent the complainant a photograph of his genitals and repeatedly requested the complainant to do the same, which she did. On 23 January 2014 the appellant participated in a recorded interview with police and made admissions. The mobile telephone used by the appellant was seized by police.
9 The offences in September 2014 involved three complainants. Between May and September 2014 the appellant, then aged 21, engaged in conversations on facebook with a girl who he believed to be aged 13. It was in fact a police officer posing as a child. The appellant repeatedly requested that she take naked photographs of herself to send to him.
10 On 9 September 2014 the appellant conversed on facebook and another social media programme with a female believed to be 15 years old and residing in New Zealand. The appellant requested that the complainant take a naked photograph of herself and send it to him.
11 Between 6 and 10 September 2014 the appellant engaged in highly sexualised conversations on facebook and other social media programmes with a 13-year-old girl from Victoria who had a severe learning disability. The appellant repeatedly requested that she take naked photographs of herself and send them to him, which she did. On 15 September 2014 the appellant participated in a recorded interview with police and made admissions. The mobile telephone used by the appellant was seized by police.
12 The four offences the subject of the ISO were committed by the appellant when he was aged 19. The complainant was aged 12. The appellant requested that she participate in sexual activity and they exchanged highly sexualised messages. He also unsuccessfully attempted to make arrangements to meet the complainant. These offences occurred after the appellant's relationship with his then girlfriend ended.
13 The appellant was born and raised in Collie. His mother and step-father also have an intellectual disability. From the age of 3 until he was 16, the appellant was looked after by his maternal grandmother who always lived in close proximity to the appellant's mother. The appellant was in special education classes in primary and high school and was, and remains, registered with the Disability Services Commission (DSC).
14 Prior to being placed on the ISO on 7 February 2013, the appellant lived an isolated life and rarely socialised outside his family and then girlfriend. Since January 2013 the appellant has been in full time work, five days a week, at Activ Industries in Bunbury and regularly socialises with others with intellectual disabilities on organised social outings. The appellant's grandmother describes him as a willing, helpful and kind young man. His employer says he is a good worker who has never behaved inappropriately in the workplace.
15 Three psychological reports were before the sentencing judge, that of Mr S Jobson dated 25 January 2013, Ms W Wager dated 3 September 2014 and Mr D Hatchett dated 18 March 2015. All refer to the appellant's intellectual disability, his short-term memory difficulties and his lack of true understanding and comprehension of the wrongfulness of his conduct and the need to protect vulnerable children from sexual predators (and, as this case indicates, from themselves).
16 The appellant's mother had encouraged sexual behaviour between her son and various girlfriends from the age of 16.
17 In Ms Wager's assessment, the appellant has a level of sexual interest that is to be expected in a young healthy male; does not suffer from socially deviant arousal to children; and that the complainants likely matched or were ahead of the appellant in terms of psychological development and maturity.
18 Although the appellant had received counselling after the imposition of the ISO, he had not engaged in any counselling with DSC specialist services.
19 Further, the appellant had reoffended at a time when the supports that had been put in place to assist him were no longer available. There was no evidence that the appellant's reoffending was related to him being oppositional, anti-authoritarian or having any anti-social personality factors.
20 Ms Wager strongly recommended that:
[The appellant] be provided with a counselling intervention which will assist him in developing social skills and strategies to relieve his boredom, as well as provide a firm and complete education in relation to what he is permitted and not permitted to do and the consequences for him of further reoffending. The intervention will need to be provided by a clinician who has sound experience in treating sexual issues for people with intellectual disabilities and will likely need to be ongoing. The risk of a practitioner inexperienced in providing counselling to people with an intellectual disability is that his ready compliance could be mistaken for a level of understanding and comprehension he may not be capable of. Also, a brief intervention is not adequate to ensure that he [has retained the] information related to behavioural management strategies over time. Such counselling would likely need to be provided or funded by the Disability Services Commission.
21 She also recommended that the appellant's grandmother be encouraged and assisted in taking a more active role in his management as she appeared to be both influential and capable of providing guidance and making decisions for the appellant.
22 It is also apparent from the expert psychological reports that the appellant's disability significantly increases his vulnerability to potential exploitation and assault in a custodial setting. That may cause the appellant to present as a greater risk to the community on his release.
Sentencing principles
23 This court can only intervene if the sentencing judge made an express or implied material error of fact or law. A claim of manifest excess relies on the implication of error. The sentence must be shown to be unreasonable or plainly unjust, it being outside the range of a sound sentencing discretion.
24 In determining whether an implied error has been made, regard is had to the maximum sentence for the offence, the standards of sentencing customarily observed, the place which the criminal conduct occupies on the scale of seriousness and the personal circumstances of the offender.
25 In relation to s 204B offences involving children under the age of 16 years, the maximum penalty is 5 years imprisonment. Where the child is under the age of 13 years, the maximum penalty is 10 years imprisonment.
26 Ordinarily, a term of immediate imprisonment is imposed for sexual offending against children. However, that does not relieve a sentencing judge of the obligation to assess whether, having regard to all relevant sentencing factors in the particular case, it is appropriate to impose a lesser sentence. The question for the sentencing judge is whether, having regard to all relevant sentencing factors, the case does not require the imposition of the generally appropriate type of sentence for the offence: Collins v The State of Western Australia [2007] WASCA 108 [21].
27 The nature and extent of the appellant's intellectual disability is such as to require that general deterrence be given very little, if any, weight: Muldrock v The Queen (2011) 244 CLR 120.
28 Moreover, it is significant that, very unusually, the appellant's conduct is only an offence because he was an adult at the time the offences were committed. However, the appellant is an adult only in chronological age. His delayed psychological development and maturity, attributable to his intellectual impairment, is more commensurate with that of the complainants (other than the police officer posing as a child). That reduces the appellant's moral culpability for the offending.
29 Accordingly, having regard to all sentencing considerations, retribution and punishment should also be given very little weight in the sentencing of the appellant. The most significant sentencing objective is the protection of the public, in particular, children. The appellant's risk of reoffending, which is high, is best managed with intensive counselling, support and supervision, not in serving a short period of imprisonment. Implied error has been established. The wrong type of sentence was imposed.
30 This court has the necessary materials to resentence the appellant. A 12 month intensive supervision order with both a supervision and programme requirement is the appropriate penalty in the very unusual circumstances of this case. Such an order should be actively managed with a multi-agency approach involving the Department of Corrective Services, DSC, Activ Industries and other support agencies, as recommended in the pre-sentence report and the psychological reports. It is clear the appellant would be very considerably assisted by his grandmother taking an active role in his management.
31 For these reasons, I would set aside the sentences imposes by the sentencing judge and in lieu thereof impose a 12 month intensive supervision order with programme and supervision requirements.
32 BUSS JA: I agree with McLure P.
33 MAZZA JA: I agree with McLure P.
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