Lee v The Queen

[2000] WASCA 73

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   COURT OF CRIMINAL APPEAL

CITATION:   LEE -v- THE QUEEN [2000] WASCA 73

CORAM:   KENNEDY J

WALLWORK J
MURRAY J

HEARD:   5 NOVEMBER 1999

DELIVERED          :   22 MARCH 2000

FILE NO/S:   CCA 119 of 1999

BETWEEN:   JOHN ARTHUR LEE

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Sentencing - Sexual offences against children overseas - One count of engaging in sexual intercourse with a child under 16 - Eight counts of committing an act of indecency on a child under 16 - Fourteen counts of being in possession of child pornography in WA - One count of displaying child pornography in WA - Deterrent aspects of sentencing - Total effective sentence of 14 years reduced to 11 years

Legislation:

Crimes Act 1914 (Cth), s 50BA, s 50BC(a)

Censorship Act 1996 (WA), s 60(3), s 60(4)

Result:

Leave to appeal granted
Appeal allowed
Total effective sentence reduced from 14 years to 11 years

Representation:

Counsel:

Applicant:     Mr S W O'Sullivan

Respondent:     Mr S D Hall

Solicitors:

Applicant:     Ian R Farquhar & Co

Respondent:     Commonwealth Director of Public Prosecutions

Case(s) referred to in judgment(s):

Inge v The Queen (1999) 73 ALJR 1563

Power v The Queen (1974) 131 CLR 623 at 629

R v Jones [1999] WASCA 24

Case(s) also cited:

Bugmy v The Queen (1990) 169 CLR 525

Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996

Hoare v The Queen (1989) 167 CLR 348

Jarvis v The Queen (1993) 20 WAR 201

R v el Karhani (1990) 51 A Crim R 123

R v GP (1997) 18 WAR 196

R v Jones [1999] WASCA 24

R v Liddington (1997) 18 WAR 394

R v Oancea (1990) 51 A Crim R 141

R v Olbrich (1999) 73 ALJR 1550

R v Paunovic (1990) 51 A Crim R 174

R v The Queen, unreported; CCA SCt of WA; Library No 970625; 21 November 1997

Veen v The Queen (No 2) (1988) 164 CLR 465

Wicks v The Queen (1989) 3 WAR 372

Woods v The Queen (1994) 14 WAR 341

1. KENNEDY J:  The facts are set out in the reasons for judgment of Wallwork J, and there is no necessity for my repeating them at length.

2. It is useful to recall the purpose of the provisions of the Commonwealth legislation under which the applicant was charged.  In his Second Reading speech, delivered on 3 May 1994, the Minister for Justice informed the House of Representatives that the principal aim of the new Part IIIA of the Crimes Act 1914 (Cth), which is headed "Child Sex Tourism", was to provide a real and enforceable deterrent to the sexual abuse of children outside Australia by Australian citizens and residents.  He continued:

   "It is unfortunate that a minority of Australian citizens and residents are now known internationally as major offenders in several Asian countries.  They exploit the vulnerability of children in foreign countries where laws against child sexual abuse may not be as strict, or as consistently enforced, as in Australia.

   The bill aims to ensure that cowardly crimes committed against children outside Australia which are not prosecuted in the country in which they were committed can be prosecuted effectively in Australia.  The bill also focuses on the activities of those who promote, organise and profit from child sex tourism ..…

   Some may wonder why the Australian parliament should enact laws to protect foreign children from sexual abuse and ask why the foreign country should not protect its own children.  It is true that the primary responsibility for protecting children from sexual exploitation rests, as it should, with the countries where the children are exploited.  The Asian countries which I have visited are indeed taking measures to do so but are confronted by social and economic factors which make their task difficult.  They welcome any assistance in [curbing] the trade in children's bodies that other governments can give.  Some other countries have already enacted, or plan to enact, legislation similar to that which is now before the House.

   .    .    .    .    .    .    .    .    .    .    .    .    .    .    .    .    .    .    .    .    .   

   The bill should send a clear message to child sexual abusers and those who profit from their activities that the government and the community condemn their behaviour and do not intend to tolerate it."

3. The applicant has demonstrated no contrition for his offences and, although he has not previously been convicted of sexual offences, he has a record of other offences, including stealing, burglary, possessing stolen property, minor drug offences, an assault occasioning bodily harm and a threat to kill, the last two offences having been committed against his estranged wife.  He was in fact on probation in relation to the threat to kill his wife at the time of the commission of the present offences.  His antecedents do not justify any reduction in the sentences which should otherwise be imposed.

4. The learned sentencing Judge rightly accepted that there had been a systematic course of conduct on the part of the applicant during his stay in Cambodia, which involved his callous abuse of young girls.  It is apparent that he had no regard for the impact of his offences on his victims, and his Honour rightly recognised the need for deterrence in a situation in which investigating and prosecuting cases is difficult.  Nevertheless, I am in agreement with Wallwork J that the sentence imposed upon the applicant for the offence of engaging in sexual intercourse with a person who is under 16 is, on the facts, excessive and should be reduced to a sentence of 6 years' imprisonment.  There is nothing to indicate that the sexual intercourse of which the applicant was convicted was other than consensual, and it cannot be described as involving any breach of trust as that expression is used in this context.  A sentence of 6 years, in my view, sufficiently recognises that the purpose of the legislation is the protection of children from their exploitation by Australian citizens or residents of their vulnerability by reason of their poverty and general social condition.

5. Section 50BC of the Crimes Act creates the offence of committing an act of indecency outside Australia on a person who is under 16.  That section, which imposes a maximum sentence of imprisonment of 12 years, deals with five different offences of sexual conduct, which differ markedly in their nature and seriousness.  An act of indecency is defined in s 50AB(1) to mean an act that is of a sexual nature and involves a human body or bodily actions or functions, and that is so unbecoming or offensive that it amounts to a gross breach of ordinary contemporary standards of decency and propriety in the Australian community.

6. The eight counts of indecency in the indictment relate to the applicant's posing young girls while they were naked, and taking photographs focusing on their genitals.  At least 14 young girls were involved in a systematic pattern of offending by the applicant during the period of two months he spent in Cambodia.  In one instance the photographs revealed that chopsticks have been inserted into the genitals of one of the girls whom the applicant photographed.  The girls ranged in age from approximately 11 years to, probably, 15 years.  In a number of the photographs, the subjects showed obvious signs of distress.

7. Although I consider that an additional effective sentence of 4 years should be imposed in relation to the offences of indecency, in my opinion the sentences should be restructured somewhat differently from the manner in which they were dealt with by the learned sentencing Judge insofar as I am of the view that a sentence of 4 years for each of these offences falls outside the appropriate discretionary range.  I would reduce these sentences to 2 years, but I would order that the sentences on counts 1, 2 and 3 be served cumulatively.  The remaining sentences on the counts of indecency should be served concurrently with the sentence imposed with respect to count 2.

8. The effective result of the proposed sentences is a term of imprisonment of 10 years. In these circumstances, it is necessary for the Court to fix a non‑parole period, as to which see s 19AB of the Crimes Act.  The fixing of the minimum term is designed to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a Judge determines justice requires that he must serve having regard to all the circumstances of his offence – see Power v The Queen (1974) 131 CLR 623 at 629, Deakin v The Queen (1984) 58 ALJR 367 at 367 and Inge v The Queen (1999) 73 ALJR 1563 at 1572 – 1573. Upon this basis I would fix a non‑parole period of 4‑1/2 years. It should be observed in this context that it is not appropriate simply to fix a minimum term as a percentage of the head term.

9. The remaining offences were committed in this State, and each involved a breach of the Censorship Act 1996 (WA).  The history of this legislation was discussed in R v Jones [1999] WASCA 24, in which the insidious impact of child pornography was emphasised. The production of child pornography frequently involves direct child abuse in one form or another. When the State Parliament increased the penalty for simple possession of child pornography, it was inviting courts to pursue the objectives of general deterrence and denunciation in sentencing those who offend against the Act. In this case, each of the counts of possession of pornographic material related to a single photograph. So far as the offence of displaying child pornography is concerned, the photographs

were displayed, uninvited, only to one adult person.  In the circumstances, sentences of 2 years for the State offences is, in my opinion, more than is necessary, and I would reduce each of those sentences to 1 year's imprisonment.  In view of the fact that, unlike the offences charged under the Crimes Act, these offences were committed in this State, I am of the view that they should be made cumulative upon the offences under the Crimes Act.  This will be achieved by directing that they be served cumulatively upon the sentences on counts 1, 2 and 3.  However, having regard to the totality principle, I would direct that each of the sentences for the offences under the Censorship Act should be served concurrently as between themselves.  This will result in a total effective sentence of 11 years' imprisonment.  I would direct that the applicant be eligible for parole in relation to each of the State offences.

1. I would grant the applicant leave to appeal and I would allow the appeal to the extent I have indicated.

2. WALLWORK J:  The applicant has applied for leave to appeal against an effective total sentence of 14 years imprisonment which he received in the District Court at Perth on 28 May 1999 for a number of offences which he had committed against the Crimes Act (Cth) and the Censorship Act (WA).

3. In sentencing the applicant the learned Judge said that he had been convicted after a trial of one count of engaging in sexual intercourse with a child under the age of 16 years outside Australia and eight counts of committing an act of indecency on an unknown person outside Australia which person was then under the age of 16 years - plus 14 counts of being in possession of child pornography and one count of displaying child pornography contrary to the Censorship Act (WA).

4. The first‑mentioned nine convictions, being the count of sexual intercourse and eight counts of committing acts of indecency, were committed contrary to the Commonwealth Crimes Act, s 50BA and s 50BC. The remaining offences were contrary to the provisions of the Censorship Act 1996 (WA).

5. When sentencing the applicant, the learned Judge said that the applicant had arrived in Phnom Penh in the kingdom of Cambodia on 27 January 1997 and had departed Cambodia on 28 March 1997.  All of the offences against the Crimes Act had occurred in Cambodia, apparently in a hotel in Phnom Penh.  His Honour said that it was clear from the

evidence that the offences were committed against young females.  The evidence would indicate that one of them was probably 11 years of age.  His Honour said that the jury by their findings had found that the applicant had either operated a camera or directed operations; that the children were mostly naked; that count 1 had involved a photograph of a person having intercourse with a child and that the jury's verdict had indicated that they were satisfied beyond a reasonable doubt that the applicant had been that person.

1. His Honour said that the Crown had initially alleged that 17 different females were involved.  However, the applicant had been acquitted of three counts.  His Honour said that that would appear to reduce the number of females involved to 14.  He said that the three acquittals could be explained by the fact that the jury were not satisfied that the females involved in those charges had been under 16 years of age.

2. With respect to the photographs the subject of the Censorship Act offences, they had been smuggled back into Australia from Phnom Penh and discovered on 5 June 1997 when the police officers had executed a search warrant.  The 14 counts of possession of child pornography concerned photographs which had been seized on that occasion.  On a separate occasion in April or May 1997, the applicant had displayed a number of photographs to a fellow worker.  That had resulted in the one charge of displaying pornography.

3. The applicant was sentenced to a term of 8 years imprisonment with respect to the count of engaging in sexual intercourse with a person under the age of 16 years. The maximum penalty under s 50BA for that offence was imprisonment for 17 years.

4. With respect to the eight counts of committing an act of indecency on an unknown person who was under the age of 16 years, while he was outside Australia, the applicant was sentenced to a period of 4 years imprisonment with respect to each count, which sentences were ordered to be served concurrently with one another but cumulatively upon the sentence for the offence of sexual intercourse with a person under the age of 16 years.  The maximum penalty available for those eight indecency offences was a sentence of 12 years on each count.

5. For the 14 counts of being in possession of child pornography and one count of displaying child pornography contrary to the West Australian Censorship Act the maximum sentence permissible was a term of 5 years imprisonment with respect to each count.  The applicant was sentenced to a term of 2 years imprisonment on each count to be served concurrently with one another, but cumulatively upon the other terms of imprisonment which had been imposed in respect of the offences under the Crimes Act.  With respect to the offences under the Censorship Act the applicant was ordered to be eligible for parole.

6. It was ordered that the sentences under the Censorship Act were to commence following the completion of the sentences for the offences against the Crimes Act.  The terms of imprisonment for the offences against the Crimes Act totalled an effective 12 years with a non‑parole term of 6 years.  The effective sentence for all the offences was therefore 14 years.

7. At the hearing of this application, counsel for the applicant submitted that there were really three areas with which the appeal was concerned.  Firstly it was submitted that the sentences themselves, individually and collectively, were manifestly excessive.  Secondly it was contended that there had not been a sufficient reduction in the effective total sentence, having regard to the totality principle.  Thirdly, it was submitted that the non‑parole period of 6 years imprisonment with respect to the Commonwealth offences was too high.  With respect to the non‑parole period, it was said that the learned sentencing Judge had not asked himself the correct question, but had rather concentrated on that term being a percentage of the effective total.

8. The non‑parole term of 6 years imprisonment was half of the total effective term for the offences against the Crimes Act, which total was comprised of 8 years for the first offence plus the concurrent 4 year terms for the offences of indecency.

9. The applicant was given leave to amend his grounds of appeal to add a ground concerning the non‑parole period.  That ground contended that the non‑parole period had not been set as the period of time required to be served in view of the circumstances of the offences, but rather had been calculated as a percentage of the head sentences.

10. It was submitted for the applicant that a sentence of 8 years imprisonment for one act of sexual penetration of a child under the age of 16 years was too high when it had not been suggested by the prosecution that there had been any assault or anything of a similar nature involved in the sexual intercourse.  It was conceded that consent was not a consideration with a young child, but at the same time it was said there had been no evidence of any brutality or anything of that nature.  Further, the applicant had no relevant prior convictions.  With respect to the offence involving the sexual intercourse it was contended that the applicant had been effectively a first offender.

11. In my view the sentence of 8 years for one act of sexual penetration of a child under the age of 16 years, there being no evidence of brutality other than the act itself, was too severe for a person with no prior convictions in all the circumstances of the case.  It was a very serious offence but a more appropriate term would have been a sentence of 6 years imprisonment for that offence.

12. The applicant next complained that the 4‑year concurrent terms for each of the offences of indecency was also too high.  It was admitted that there had been seven individual children involved in those offences, but it was contended that the 4‑year term for each offence was not commensurate with sentences which would be given in Western Australia for that type of indecent dealing.  It was conceded that the relevant photographs had been posed so that there was a focus on the vaginal and anal areas.  It was said that in only one of the photographs was there a figure of a person standing behind the child concerned.  That person was holding the child's arms but not doing anything else with the child.  It was submitted that otherwise there was no question of the photographs being photographs of anything being done to the child in each photograph.  It was said that although there had been no evidence given that the girls had been paid, there had been a reference to a taxi driver doing the procuring.  It was conceded that an inference was that there had been a commercial exercise involved and that there had been exploitation. 

13. It was submitted for the applicant that there was nothing in the legislation which indicated that the offences were to be treated more seriously than equivalent offences would be treated if they had been committed in Western Australia.  It was submitted that in Western Australia an offence of indecent dealing, short of penetration tended to attract a sentence of 1 to 2 years imprisonment.  In this case each offence had attracted a sentence of 4 years imprisonment.

14. The applicant's counsel contended that the relevant photographs involved an undressed child, at times with her legs splayed, so that her vaginal area could be seen.  There was not masturbation or anything of that kind.  It was conceded that the offences involved the corruption of the children concerned.

15. The eight offences of indecency involved seven different children.  The total effective sentence for those offences was 4 years.  Although each sentence was a sentence of 4 years imprisonment, they were all ordered to be served concurrently.  When the criminality of the offences involving seven different girls is looked at, it could not be said in my view that a 4‑year aggregate term was too high.  However, in my opinion it would have been more correct if his Honour had sentenced the applicant to 2 years imprisonment for each of those eight offences of committing an act of indecency on a child under the age of 16 years and ordered that two of the sentences should be served cumulatively upon one another and upon a term of 6 years imprisonment for the offence of sexual intercourse with a child under 16 years of age.  If the sentence for the last mentioned offence was fixed at a term of 6 years imprisonment, and the six remaining 2‑year terms for the acts of indecency were ordered to be served concurrently with the first 2‑year sentence for the indecency offences, the total effective term for all the Crimes Act offences would be 10 years imprisonment.

1. With respect to the 14 counts of being in possession of child pornography contrary to the Censorship Act (WA) the court was told that there had been an additional six girls involved in the photographs which were the subject of these Censorship Act charges, in addition to the eight girls who had been involved in the offences under the Crimes Act.  There was also the count of displaying child pornography contrary to the Censorship Act, but that charge had not involved any additional children.

2. The learned Judge sentenced the applicant to 2 years imprisonment for each offence against the Censorship Act and ordered those sentences to be served concurrently with another but cumulative upon the 12 years total effective sentence for the offences under the Crimes Act.

3. It was submitted for the applicant that to have the applicant sentenced to an additional 2 years effective imprisonment for his possession of the photographs after he had been sentenced to 12 years for the other offences, had amounted to some sort of overkill.  It was said that the Crown case had been presented on the basis that the applicant had taken the photographs as part of a group of photographic sessions.  It was submitted that the jury had accepted that the applicant had either taken the photographs or been involved in their being taken.  That the jury had accepted that he had at least taken a part in posing the girls and either taken the photographs or caused them to be taken.

4. The essence of the applicant's submission concerning these sentences is that he had already been sentenced to 12 years imprisonment for the Crimes Act offences and to have received an additional 2 years

imprisonment for the possession of the photographs arising from his activity in Cambodia offended the totality principle.  Additionally it was said for the applicant that there had been no question of commercial gain by his having possession of the photographs or displaying them in Western Australia and that this was a matter which was important from the point of view of punishment.

1. In my opinion the corruption which was involved in the applicant's part in organising and arranging for the six additional girls to be photographed in an obscene way merited an extra one year's effective imprisonment for the censorship charges.  The sentences for the offences under the Censorship Act, including the one for displaying child pornography were all ordered to be served concurrently with one another.  I agree with that disposition.

2. In conclusion, if the aggregate sentence for the Commonwealth offences is reduced from 12 years to 10 years, I would reduce the minimum period before parole to one of 4-1/2 years imprisonment.  That would take account of the fact that it is not said that the applicant is likely to commit similar offences again.  In that event it would be unnecessary to deal with the proposition advanced on behalf of the applicant that the learned Judge had taken a percentage of the 12 years imprisonment to fix the non‑parole term, rather than arriving at a term which the offender should serve. 

3. I would order that the applicant be eligible for parole with respect to the effective one year imprisonment for the offences under the Censorship Act and order that those sentences be served concurrently with one another but cumulatively upon the sentences for the Crimes Act offences.  The effect of that would be that the applicant would commence to serve the one year concurrent sentence after the 4-1/2 years minimum term for the Crimes Act offences.

4. MURRAY J:  I have had the advantage of reading in draft the reasons for judgment delivered by Kennedy and Wallwork JJ.  I have nothing to add to those reasons.

5. In my opinion also leave to appeal should be granted and the appeal allowed. I too would vary the sentences imposed so as to reduce the sentence of 8 years imprisonment imposed for the offence of having sexual intercourse with a child while out of Australia, contrary to s 50BA of the Crimes Act 1914 (Cth) to one of 6 years imprisonment.  I would also quash the sentences of 4 years imprisonment imposed for the eight

offences of committing an act of indecency on a child while out of Australia, contrary to s 50BC(a) of the Crimes Act and would impose sentences of  2 years imprisonment.  Those imposed with respect to counts 2 and 3 of the indictment should be ordered to be served cumulatively upon each other and upon the sentence of 6 years imprisonment previously imposed, while the remaining six sentences of 2 years imprisonment should be served concurrently.

1. I agree also that in respect of that aggregate term of 10 years imprisonment it would be appropriate in the circumstances of this case to fix a non‑parole period of 4‑1/2 years, having regard to the considerations applicable to the fixing of such a minimum term.  I entirely agree with Kennedy J that it is not simply a matter of taking a percentage of the head term and fixing that as the minimum in every case.

2. Finally, as to the 14 offences of possession of child pornography contrary to the Censorship Act 1996 (WA) s 60(4) and the further offence of displaying child pornography contrary to s 60(3) of that Act, I too would quash the sentences of 2 years imprisonment fixed with respect to those offences and impose instead, sentences of 1 years imprisonment which I would order should be served concurrently with each other, but cumulatively on the sentences imposed for the Commonwealth offences. The order of eligibility for parole should remain in place. Potentially serious as these offences may be, it seems to me that it should not be overlooked that the gravamen of the offences is simply the possession of the pornographic photographs, which were not in any sense separate acts of possession such as justify cumulative sentences, and showing one of them to a work mate.