James Edward Campbell v The Queen
[2019] VSCA 158
•2 July 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0213
| JAMES EDWARD CAMPBELL | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 28 June 2019 |
| DATE OF JUDGMENT: | 2 July 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 158 |
| JUDGMENT APPEALED FROM: | [2018] VCC 1510 (Judge Carmody) |
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CRIMINAL LAW – Sentence – Application for leave to appeal – Grooming a child under 16 for sexual conduct (3 charges), using carriage service to transmit indecent communication to a person under 16, failing to comply with reporting obligations under Sex Offenders Registration Act (2 charges), possessing child abuse material and committing indictable offence while on bail – Total effective sentence of 5 years and 9 months – Orders requiring applicant to serve 4 years and 3 months before being eligible for parole – Whether sentence involved double punishment – Whether judge erred in finding circumstance of aggravation – Whether sentence manifestly excessive – Applicant’s complaints of error not reasonably arguable – Not reasonably arguable that sentence manifestly excessive – No reasonable prospect that less severe sentence would be imposed – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M D Phillips | Victoria Legal Aid |
| For the Respondent | Mr J C J McWilliams | Mr J Cain, Solicitor for Public Prosecutions |
PRIEST JA
BEACH JA:
On 11 September 2018, the applicant pleaded guilty in the County Court to three charges of grooming for sexual conduct with a child under 16, one charge of using a carriage service to transmit indecent communication to a person under 16, two charges of failing to comply with reporting obligations under the Sex Offenders Registration Act 2004, one charge of possessing child abuse material and one charge of committing an indictable offence whilst on bail. On 14 September 2018, the applicant was sentenced as follows:
Charge on Indictment
Offence
Maximum
Sentence
Cumulation
1
Grooming for sexual conduct with child under 16
[s 49B(2) of the Crimes Act 1958]
10 years
36 months
Base
2
Grooming for sexual conduct with child under 16
[s 49M(1) of the Crimes Act 1958]
10 years
36 months
-
3
Use a carriage service to transmit indecent communication to a person under 16
[s 474.27A of the Criminal Code Act 1995 (Cth)]
7 years
6 months
To commence 3 months before the expiration of the non-parole period of the State sentence
4
Failing to comply with reporting obligations
[s 46(1) of the Sex Offenders Registration Act]
5 years
6 months
3 months
Charge on Indictment
Offence
Maximum
Sentence
Cumulation
5
Possession of child abuse material
[s 51G of the Crimes Act 1958]
10 years
9 months
6 months
6
Grooming for sexual conduct with child under 16
[s 49M(1) of the Crimes Act 1958]
10 years
30 months
20 months
7
Failing to comply with reporting obligations
[s 46(1) of the Sex Offenders Registration Act]
5 years
6 months
3 months
Related summary charge
3
Commit indictable offence whilst on bail
[s 30B Bail Act 1977]
3 months
1 month
1 month
Total Effective Sentence:
5 years and 9 months
Non-Parole Period:
· The State non-parole period is 4 years
· The minimum term to be served in respect of both State and Federal sentences before being eligible for parole is 4 years and 3 months[1]
(1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18:
203 days
6AAA Statement: 7 years and 6 months with a non-parole period of 5 years
Other relevant orders:
· Sentenced as a Serious Sexual Offender in respects of charges 1, 2, 5, and 6
· Life reporting under Sex Offenders Registration Act 2004
· Forfeiture and disposal orders in respect of charges 1, 2, 5, and 6
[1]The minimum term to be served is 3 months longer than the State non-parole period because the judge ordered the sentence on charge 3 (6 months’ imprisonment) to commence 3 months before the expiration of the State non-parole period. As to the provisions governing the fixing of non-parole periods for Federal offences, see ss 19, 19AB, 19AC and 19AJ of the Crimes Act 1914 (Cth).
The applicant now seeks leave to appeal against his sentence on the following grounds:
1.The judge erred by contravening the principle against double punishment in the sentences imposed for charges 3, 4, 5, 7 and the related summary charge, as well as in the orders for cumulation in relation to those charges.
2.The judge erred in finding that a clear intent to meet for sexual contact was an aggravating feature of the offending.
3.In all the circumstances, the individual sentences, the total effective sentence and non-parole period imposed were manifestly excessive.
Circumstances of the offending
The applicant’s offending involved the grooming of two complainants: Daniel Hawes[2] (‘Daniel’) and Oliver Kirwan (‘Oliver’).[3] The applicant faced two charges of grooming Daniel because his offending straddled 1 July 2017. Prior to 1 July 2017, the offence of grooming was contained in s 49B of the Crimes Act. On 1 July 2017, by amendments made by the Crimes Amendment (Sexual Offences) Act 2016, the offence of grooming was moved from s 49B to s 49M.
[2]A pseudonym in relation to charges 1 to 5.
[3]A pseudonym in relation to the remaining charges.
Offending in relation to Daniel
The applicant’s initial contact with Daniel occurred playing the online game Black Ops 2. The applicant logged on to the game under the username G_Uchi 55. He told Daniel that he was 22 years old, and Daniel told him that he was 12.
Whilst playing Black Ops 2, the applicant asked Daniel if he had a Facebook account. He located Daniel’s Facebook account and added himself as a friend. On 16 May 2016, the applicant commenced talking on Facebook with Daniel. On 20 May 2017, he commenced communicating with Daniel on Skype. Between 16 May 2017 and 3 December 2017, the applicant engaged in sexualised communications with Daniel via Facebook. Between 20 May 2017 and 5 July 2017, he engaged in sexualised conversations with Daniel via Skype.
The explicit detail of the applicant’s messages to Daniel were set out in the prosecution opening on the plea. As the judge correctly characterised them, they were ‘extremely crude and sexualised approaches to a young boy under the anonymous cover of the internet, [in which the applicant was] clearly seeking to ingratiate [himself] to [Daniel] in an attempt to recruit him for [the applicant’s] own sexual gratification’.[4] These facts were the basis for charges 1 and 2.
[4]DPP v Fernando (a pseudonym) [2018] VCC 1510 [6] (‘Reasons’).
Despite Daniel becoming less responsive to the applicant’s advances, the applicant continued to contact him on Facebook until Daniel’s father responded to one of the applicant’s communications on 3 December 2017. The police turned up at the applicant’s house on 12 December 2017. His computer was seized and, on 20 December 2017, police located photographs of Daniel on it which formed the basis of charge 5.
In the course of the applicant’s communications with Daniel, the applicant persuaded Daniel to send him videos and photographs of himself in sexualised poses. This was the basis for charge 3.
In July 2012, the applicant was declared to be a registrable offender under the Sex Offenders Registration Act, and placed on the Sex Offenders Register for life. The applicant’s reporting obligations required him to notify Victoria Police of his contact with Daniel between 16 May 2017 and 3 December 2017. This he failed to do. Those facts formed the basis of charge 4.
On 14 January 2018, the applicant was arrested and interviewed. During the course of the interview, the applicant:
·said he had met Daniel through online gaming;
·said that he did not add Daniel to Facebook, and that he did not talk to people under the age of 18 because of his reporting conditions;
·said that he did not talk to Daniel over Facebook Messenger, but communicated with him over Skype;
·said he did not remember sending Daniel a photograph of his penis, but that he sometimes sent photographs of his penis to friends as a joke;
·said that he did not recall discussing his age with Daniel;
·denied ever being able to see Daniel over Skype, and said that he could have been 40 years old;
·stated that he blocked the contact with Daniel after his father responded to his message on Facebook;
·agreed that he did not advise police of his contact with Daniel; and
·denied that his laptop would contain any images of child pornography.
Following his arrest and interview, the applicant was charged and released on bail.
Offending in relation to Oliver
Despite being on bail for the offences against Daniel, the applicant, as the judge put it, ‘returned to [his] grooming offending on 9 February 2018’.[5]
[5]Ibid [13].
Oliver lived in New South Wales with his family. In February 2018, he was playing an online game of Call of Duty Black Ops 2 on his PlayStation. This game involves players logging into the game via the internet connection and interacting with other players from different locations as they each play the game. The applicant, as we have said, played that game under the username of G_Uchi55. On or around 9 February 2018, the applicant began interacting with Oliver through this game. He told Oliver that he was 20 and Oliver told him that he was 14.
The applicant discussed his job working in an ice cream store, and Oliver discussed what school he was attending. The applicant asked Oliver for his phone number and they exchanged numbers. On 10 February 2018, the applicant commenced sending text messages to Oliver. He then asked Oliver for a photograph and they exchanged photos. Between 10 February 2018 and 20 February 2018, the applicant engaged in sexualised communications with Oliver via text messages. The judge correctly described the content of the applicant’s communications as ‘highly sexualised and depraved’.[6] These facts formed the basis of charge 6.
[6]Ibid [15].
The applicant tried to arrange a meeting with Oliver. During the period that they exchanged text messages, they also communicated via the online game. The applicant asked Oliver if he wanted to meet up, and Oliver agreed. They agreed to meet at the East Albury basketball courts but the applicant cancelled prior to the meeting. They then arranged to meet on 25 February 2018 at the East Albury skate park.
On 22 February 2018, Mrs Kirwan[7] discovered the text messages between her son and the applicant. Mr Kirwan attended at the Albury police station to report the matter. Enquiries revealed the mobile phone number that Oliver had been texting belonged to the applicant. The applicant’s failure to notify police of his contact with Oliver was the basis of charge 7.
[7]A pseudonym.
On 23 February 2018, the applicant was arrested and interviewed. During the interview, the applicant said:
·the photograph that he received of Oliver looked like a 19 year old, and he did not ask Oliver his age;
·he thought that Oliver was aged at least 18, and he told Oliver that he was 28;
·there had been a plan to meet Oliver, but he could not be bothered driving to meet him so it was cancelled;
·a message that he sent Oliver about licking things was a joke;
·he did not report his contact with Oliver to police because he thought Oliver was over the age of 18; and
·in the past, he would conduct what he would describe as checks on people ‘entering his clan on the online game’, but he no longer conducted these checks.
At the time of the offending in relation to Oliver, the applicant was on bail in relation to that offending against Daniel. This was the basis for the summary charge of committing an indictable offence while on bail. Following his arrest and interview on 23 February 2018, the applicant was charged and remanded in custody.
Applicant’s background
The applicant was born in January 1990. He was aged 27 to 28 at the time of his offending, and 28 at the time of sentencing. He had a happy and stable early childhood, although his parents separated when he was 10 years of age. A subsequent partner of his mother was verbally abusive to him and his mother.
The applicant’s education was limited, completing year 10 VCAL at Holmesglen TAFE. He then completed a pre-apprenticeship course in plastering. Subsequently he commenced an apprenticeship as a plasterer, but moved across to labouring because the pay was better. He remained in that employment until he was incarcerated in 2012.
On 6 July 2012, the applicant was convicted of sexual penetration of a child under 16 and seven other child sex offences. He was sentenced to a total effective sentence of 4 years and 8 months, with a non-parole period of 2 years and 6 months. He was placed on the Sex Offender Register for life.
On 30 September 2013, while still serving the sentence imposed in 2012, the applicant was convicted on two charges of using a service to procure a child under 16 for a sex act. He was sentenced to 1 year and 8 months, with an order that he be released on a bond to be of good behaviour for 30 months after serving 8 months of that sentence. As the judge recorded, however, the applicant was ultimately not granted parole in respect of the 2012 sentence, because of an inability to provide a suitable address to comply with the requirements of the Sex Offenders Registration Act.[8]
[8]Reasons [29].
On the plea, the applicant tendered two reports from a forensic, clinical and counselling psychologist, Mr Patrick Newton, and a report from a consulting clinical and forensic psychologist, Mr Jeffrey Cummins. Mr Newton’s reports disclose that he assessed the applicant as an immature man of ‘borderline’ intelligence. Mr Newton concluded, however, that the applicant was not intellectually impaired.
Prior to being remanded for the offending for which he fell to be sentenced by the judge, the applicant worked in an ice cream factory. At the time of sentencing, he had been in custody for some 203 days.
Sentencing reasons
The judge commenced his reasons for sentence with a description of the charges and the circumstances of the applicant’s offending.[9] The judge then noted that no victim impact statements had been filed.[10] Next, the judge described in some detail the applicant’s personal circumstances.[11] In the course of this, the judge referred to the opinions of Mr Cummins and Mr Newton. In relation to Mr Cummins, the judge set out his opinion that the applicant’s:
risk of committing further sexual offences against an underage male is at least moderate to high and will remain at this level or progress to high unless he receives and benefits from appropriate offence specific treatment.[12]
[9]Ibid [1]–[21].
[10]Ibid [22].
[11]Ibid [23]–[34].
[12]Ibid [32].
The judge then referred to relevant sentencing considerations, including:
·just punishment, deterrence, rehabilitation, denunciation and protection of the community;
·current sentencing practices;
·the requirements of ss 16A(2) and 17A of the Crimes Act 1914 (Cth);
·the serious offender provisions in the Sentencing Act 1991; and
·the principle of totality.[13]
[13]Ibid [35]–[61].
The judge concluded that a term of imprisonment was the only appropriate sentence for the applicant’s offending.[14] The judge accepted, however, that the applicant’s plea of guilty had been ‘indicated at an early stage’ and that the plea had a utilitarian value and vindicated public confidence in the legal process.[15] The judge also accepted that the applicant’s plea of guilty was an acknowledgement of responsibility and demonstrated some remorse.[16] Additionally, the judge accepted that the plea relieved ‘the necessity for vulnerable victims to front up to the prospect of giving evidence and being cross-examined about … personal and sensitive matters’.[17]
[14]Ibid [40].
[15]Ibid [43].
[16]Ibid [44].
[17]Ibid [45].
Next, the judge dealt with the applicant’s prior convictions. The judge observed that the prior convictions engaged the serious offender provisions of the Sentencing Act, and the judge described the effect of those provisions.[18]
[18]Ibid [46]–[51].
The judge concluded, on the evidence given on the plea, that the applicant was ‘a high risk of reoffending in a sexual manner against young males’.[19] The judge then referred to the objective seriousness of the applicant’s offending, saying that it was informed by the following factors:
[19]Ibid [48].
(a)you used the anonymity of the internet to prey on prospective young males;
(b)you pressured and pursued of the sexualisation of the ‘conversations’ with the clear intent of meeting your target for sexual contact;
(c)you have offended shortly after your release from prison for similar offences;
(d)you returned to offending of grooming shortly after being arrested and bailed for grooming offences;
(e)you convinced your victims to send pornographic images of themselves to you;
(f)the nature of your offending is to corrupt young boys for your own sexual gratification; and
(g)your offending is a persistent course of conduct until it is interrupted by the parents in these cases.[20]
[20]Ibid [53].
The judge observed that the two grooming charges in relation to Daniel were brought about because of an amendment to the Crimes Act. For that reason, he said that it was appropriate to have full concurrency between the sentences on those charges. He said, however, that some cumulation was required on the other charges — including the ‘second offending’ in relation to Oliver, when the applicant was on bail for the offending in relation to Daniel.[21]
[21]Ibid [54]–[55].
The judge then turned to the issue of totality, before concluding his reasons for sentence as follows:
I have taken into account the principle of totality when assessing the cumulation of the individual sentences for each charge and then the total effective sentence at the end.
After taking into account all of the relevant matters to your offending, the principles of protection of the community, general and specific deterrence are the most significant factors.
I assess your chances of rehabilitation as guarded. Nevertheless, I have fixed a non-parole period in the hope that on this occasion that you spend in gaol is followed by a period of close supervision and continued sex offender treatment in the community. On the last occasion, you were released without any supervision as you served every day of your sentence. You reoffended within two months. The protection of the community will be enhanced by active and close supervision and treatment in the community upon your release from custody. I trust that the provisions of my order under the Sex Offenders Registration Act does not frustrate or prevent the parole board from having the option to grant you parole should you earn the privilege whilst you are in custody.[22]
[22]Ibid [59]–[61].
Parties’ submissions
Under ground 1, in his written case, the applicant submitted that there was a ‘near total overlap’ between the grooming offences and charges 3, 4, 5, 7 and the related summary charge. It was then contended that the degree of cumulation imposed in respect of charges 3, 4, 5, 7 and the related summary charge was ‘disproportionate to the additional criminality involved in those further offences, and thus reflected a double punishment’. As to the specific charges, in his written case, the applicant submitted:
(1) Charge 5 involved four images that depicted Daniel (although, in oral argument counsel conceded that there were in fact 13 images). The images were obtained in the course of the sexual communications which formed the basis of the grooming charges relating to Daniel. There was no suggestion of any intention to distribute, or profit from the images, and there were no images or other material relating to any children other than Daniel. On the plea, the prosecutor conceded that the images could be categorised at ‘the lowest end’ of the spectrum. In the circumstances, the criminality in charge 5 was submitted to be ‘almost entirely subsumed by the grooming offending’. The sentence of nine months’ imprisonment, with cumulation of six months was submitted to have punished the applicant for a second time for the acts the subject of charges 1 and 2.
(2) In relation to charge 3, the applicant noted that the seven images were all sent by the applicant to Daniel, again, in the course of the grooming charges. A like submission as that made with respect to charge 5 was then made in relation to charge 3 – namely, that these facts called for the judge to have ordered substantial concurrency in respect of charge 3.
(3) The two charges of failing to comply with reporting obligations (charges 4 and 7) were constituted by the applicant’s failure to notify police of his contact with Daniel and Oliver. Again, this was the basis for the grooming charges in relation to those complainants. It was submitted that, in the circumstances, the six months sentences on charges 4 and 7 with 50 per cent cumulation was disproportionate to the degree of additional criminality involved.
(4) In relation to the one month sentence for committing an indictable offence while on bail (all of which was cumulated), the applicant submitted that there was a ‘near total overlap’ between that offending conduct and the underlying grooming charge. The cumulation of the entire one month sentence was submitted to be significantly higher than was warranted having regard to the overlap between this offending.
In oral argument, counsel for the applicant abandoned the applicant’s complaints of specific error in relation to charges 4 and 7. He went on to submit, however, that the offending that constituted charges 3 and 5 (and perhaps also the summary charge) was ‘wholly subsumed’ by the grooming charges.
In relation to ground 2, the applicant submitted that it was not reasonably open on the evidence in relation to charges 1 to 5 to find beyond reasonable doubt that the applicant intended to meet Daniel and progress to physical sexual offending. The applicant accepted that the judge only referred to a singular target when he said that the objective seriousness of the offending was informed by ‘the clear intent of meeting your target for sexual contact’.[23] The applicant submitted, however, that the plea transcript revealed that the judge was of the view that there was an intent on the part of the applicant to meet both complainants for sexual contact. Moreover, while no complaint was made by the applicant’s plea counsel during the course of the plea,[24] it was submitted that the judge did not give counsel an opportunity to make a submission in reply.
[23]Ibid [53].
[24]Not counsel who appeared in this Court.
Under ground 3, the applicant submitted that the sentence imposed on him by the judge was manifestly excessive. His complaint of manifest excess was particularised as follows:
(a)The total effective and individual sentences on charges 3, 4, 5, 7 and the related summary charge failed to give sufficient weight to the principle of totality.
(b)The sentencing judge attached insufficient weight to the applicant’s complex intellectual and psychological makeup.
(c)The individual sentences, total effective sentence and non-parole period imposed were disproportionate to the objective gravity of the offending.
In relation to what was described as ‘the applicant’s complex intellectual and psychological makeup’, counsel for the applicant first conceded that counsel on the plea ‘did not seek to engage the principles essayed in R v Verdins’.[25] It was contended, however, that the applicant’s plea counsel did submit that the applicant’s cognitive functioning, immaturity, poor social skills, interpersonal naivety and dependent personality style were relevant to both his personal circumstances and the Court’s assessment of the offending behaviour. As to the relevance of these matters, the applicant placed reliance upon what this Court said in Director of Public Prosecutions v O’Neill,[26] where the Court said:
The respondent’s complex personality matrix was not, however, irrelevant to the sentencing synthesis. The evidence of Dr Barth was relevant and of substantial importance in explaining why the respondent, in response to the humiliating remarks made to him by his partner, exploded in a fit of rage in the course of which he murdered his partner. That explanation was of central importance in making an informed assessment of the respondent’s moral culpability for his offending conduct.
The determination of an offender’s moral culpability does not depend, solely, on an objective assessment of the actions and conduct of the particular offender. Such an assessment necessarily involves a careful consideration of matters personal to the offender, which may provide an appropriate explanation as to how, particularly in a case such as this, a hitherto law-abiding person has, in an outburst of uncontrolled anger, committed such a serious crime.[27]
[25](2007) 16 VR 269 (‘Verdins’).
[26](2015) 47 VR 395 (‘O’Neill’).
[27]Ibid 420 [96]–[97].
In contending that the sentence imposed on the applicant was manifestly excessive, the applicant’s counsel relied upon the following additional matters:
·there was no contact offending, and no suggestion that the applicant went onto the online gaming platform for the purpose of seeking out children;
·the offending was of limited duration, largely occurring over 15 days in relation to Daniel, and confined to 10 days in relation to Oliver;
·there was an absence of aggravating features sometimes seen in offending of this type, such as an abuse of trust, an attempt by the offender to conceal his identity, or the use of threats;
·in relation to the child pornography charge, there was only a small number of images — and these were of the lowest categorisation;
·there was no intent to profit from or distribute the images the subject of the child pornography charge;
·the applicant pleaded guilty at an early opportunity, was co-operative with police, was remorseful, was a relatively young man, had family support, had a demonstrated work ethic, and had an intellectual impairment (albeit that his impairment fell short of an intellectual disability).
The respondent submitted that leave to appeal should be refused. It disputed that there was a ‘near total overlap’ between the offences referred to by the applicant and the grooming offences. The respondent contended:
The grooming offences can, and often do, occur independently of possessing child abuse material. Similarly, using a carriage service (the internet) to transmit indecent communications is not always a feature and is not an element of the grooming offence.
The respondent disputed the number of images involved in charge 5. The prosecution opening (the contents of which were admitted by the applicant on the plea) disclosed a total of 13 images relied upon in support of charge 5.
As to charges 4 and 7, the respondent submitted that the cumulation of three months for each charge was modest — being merely 5 per cent of the maximum penalty — given how flagrant the breach was in each case. Specific deterrence for the applicant and general deterrence were submitted to be important considerations.
Next, the respondent submitted that the offending giving rise to the summary charge was ‘an egregious example of committing an offence on bail’. The applicant was arrested on 14 January 2018 in relation to Daniel. He was charged and released on bail. He returned to the same offending less than a month later. There was no double punishment in relation to any of the sentences imposed by the judge.
In relation to ground 2, the respondent submitted that it was open to the judge to conclude that the applicant had ‘the clear intent of meeting [Daniel] for sexual contact’. The summary of prosecution opening provided an adequate basis for this finding — particularly in relation to one communication:
I’ll come down for a holiday to see ya
Is there a park or school near u
…
So could u get there by ya self
So we could make out with out ppl looking.
With respect to ground 3, the respondent submitted that given the seriousness and persisting nature of the applicant’s offences, committed against children, the sentences imposed were reasonably within the range available to the judge. The judge addressed totality. The applicant was sentenced as a serious sexual offender. The applicant’s complaints of manifest excess are not reasonably arguable.
Analysis
The applicant fell to be sentenced as a serious sexual offender in respect of charges 1, 2, 5 and 6. Section 6D of the Sentencing Act required the judge to regard the protection of the community from the applicant as the principal purpose for which sentence was to be imposed on those charges. Additionally, s 6E required every term of imprisonment imposed by the judge on those charges to be served cumulatively on each other and on any uncompleted sentence of imprisonment that was otherwise imposed on the applicant, unless the Court otherwise directed.
While there were elements of overlap between the various offences the applicant fell to be sentenced for, each offence involved distinct elements of criminality. When one has full regard to the circumstances of the applicant’s offending and his prior history, there is no basis for concluding that any of the sentences or orders for cumulation made by the judge were erroneous.
This Court has said many times that for sexual offending involving children, denunciation, general deterrence and just punishment are primary sentencing considerations. In the present case, having regard to the applicant’s history, protection of the community and specific deterrence were also primary sentencing objectives. The sentences imposed on the applicant in the past have plainly not deterred him. And on the evidence given on the plea, the judge was clearly entitled to conclude that the applicant is a high risk of reoffending against boys under 16.
We are not persuaded that any of the specific errors contended for by the applicant in grounds 1 and 2 are reasonably arguable. In his reasons for sentence, the judge took care to ensure that there was no double punishment. The sentences and orders he made show that there was no double punishment. Moreover, when one reads all of the applicant’s messages sent to Daniel one sees no basis for contending that it was not open to the judge to find that the applicant had an intention of meeting Daniel for sexual contact.
We turn now to the applicant’s complaints of manifest excess. The complaints were particularised by reference to the issue of totality, the applicant’s intellectual and psychological makeup and the objective gravity of the offending.
First, insofar as the applicant contended that the judge gave insufficient weight to the principle of totality or insufficient weight to the applicant’s intellectual and psychological makeup or failed to have appropriate regard to the objective gravity of the offending, such contentions are without foundation. It is plain from the judge’s reasons that each of the matters and issues referred to by the applicant were the subject of proper consideration by the judge.
Secondly, nothing in the sentences imposed, or the orders made, by the judge suggests that the judge erred in any of the ways contended for by the applicant in his submissions on manifest excess.
Thirdly, the applicant’s reliance upon O’Neill is, in this case, at least to some extent, misconceived. What was said by this Court in O’Neill[28] has to be seen in the context of that particular case where it was sought to explain how ‘a hitherto law-abiding person [had], in an outburst of uncontrolled anger, committed … a serious crime’.[29] That is not the present case.
[28]In particular at (2015) 47 VR 395, 420 [96]–[97].
[29]Ibid 420 [97].
Fourthly, when one pays proper regard to the objective seriousness of the applicant’s offending, the applicant’s prior history of offending and the likelihood of him offending again, the sentence imposed by the judge can realistically only be explained by reference to the judge having given full weight to the matters about which the applicant now makes complaint.
The applicant’s complaints that the individual sentences, the total effective sentence and the non-parole period imposed upon him were manifestly excessive are without merit. It is simply not reasonably arguable that any of the sentences or orders made by the judge were wholly outside the permissible range of sentencing options. As we have said, if anything, the individual sentences, the total effective sentence and the non-parole period were moderate in all the circumstances.
Section 280(1) of the Criminal Procedure Act 2009 permits this Court to refuse an application for leave to appeal against sentence if there is no reasonable prospect that this Court would impose a less severe sentence than the sentence first imposed, or there is no reasonable prospect that this Court would reduce the total effective sentence despite there being an error in the sentence first imposed. Section 280(2) provides that an application for leave to appeal may be refused under sub-s (1) even if this Court considers there may be a reasonably arguable ground of appeal.
For the reasons already given, we do not consider that there is a reasonably arguable ground of appeal in this case. Additionally, even if error were established, there is no reasonable prospect that this Court would impose a less severe sentence than the sentence imposed by the judge. We will refuse leave to appeal because we are unpersuaded that the applicant has a reasonably arguable ground of appeal, and also because there is no reasonable prospect that this Court would impose a less severe sentence than that imposed by the judge.
Conclusion
The application for leave to appeal is refused.
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