Lewsam v The State of Western Australia
[2016] WASCA 60
•26 APRIL 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: LEWSAM -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 60
CORAM: McLURE P
BUSS JA
MITCHELL J
HEARD: 10 MARCH 2016
DELIVERED : 26 APRIL 2016
FILE NO/S: CACR 150 of 2015
BETWEEN: PETER ANTHONY LEWSAM
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :SCOTT DCJ
File No :IND 250 of 2015
Catchwords:
Criminal law - Appeal against sentence - Sexual penetration of a child - Indecent dealing with a child - Indecently recording a child - Possession of child exploitation material - Totality - Whether total effective sentence fails to bear a proper relationship to overall criminality involved in all the offences - Where appellant offended against a total of 78 victims
Legislation:
Criminal Code (WA), s 220, s 320
Result:
Appeal allowed
Total effective sentence of 16 years 6 months' imprisonment set aside
Total effective sentence of 12 years' imprisonment imposed
Category: D
Representation:
Counsel:
Appellant: Mr T N Cullity
Respondent: Ms A C Longden
Solicitors:
Appellant: Tom Cullity
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
AIM v The State of Western Australia [2014] WASCA 155
Do v The State of Western Australia [2013] WASCA 218
GHK v The State of Western Australia [2014] WASCA 19; (2014) 238 A Crim R 178
GHS v The State of Western Australia [2006] WASCA 42
Hine v The State of Western Australia [2010] WASCA 216
JWD v The State of Western Australia [2013] WASCA 233
KMB v The State of Western Australia [2010] WASCA 212
Lim v The State of Western Australia [2010] WASCA 186
Neumann v The State of Western Australia [2013] WASCA 70
Pendleton v The Queen [2002] WASCA 4
Roffey v The State of Western Australia [2007] WASCA 246
SWD v The State of Western Australia [2012] WASCA 76
The State of Western Australia v McCarthy [2014] WASCA 210
The State of Western Australia v Prince [2011] WASCA 22
Trompler v The State of Western Australia [2008] WASCA 265
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
McLURE P: I agree with Mitchell J.
BUSS JA: I agree with Mitchell J.
MITCHELL J:
Summary
The appellant received a total effective sentence of 16 years 6 months' imprisonment in respect of 125 offences, mostly comprising sexual offences against a total of 75 children, to which he pleaded guilty.
The offending mainly involved the appellant attending the toy sections of Kmart stores and recording up the skirts of very young female children who were not known to him.
Nineteen of the children were also indecently dealt with, mostly by the appellant rubbing his finger on their underpants in the area of their vagina.
In four cases, the appellant digitally penetrated the victim's vagina. One of those victims was made to touch the appellant's penis after he sucked her tongue.
When arrested, the appellant was found to be in possession of a significant quantity of child exploitation material.
The appellant appeals against the sentences imposed for these offences. He does not complain of the sentences imposed for the individual offences of which he was convicted. Rather, the appellant contends that the total effective sentence imposed infringed the totality principle of sentencing.
The respondent concedes that the total effective sentence fails to bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case. On that basis, the respondent accepts that the total effective sentence infringes the first limb of the totality principle, the appeal should be allowed and the appellant must be resentenced.
The respondent's concession should be accepted. The number of victims means that the offences, considered as a whole, involve a very serious course of criminal conduct. However, the total effective sentence of 16 years 6 months' imprisonment exceeded sentences customarily
imposed in even the most serious cases involving repeated and sustained sexual conduct of the most intrusive kind by a parent or adult in a position of trust. In all but one of the other cases where total effective sentences approaching the appellant's were imposed, the sentence was imposed after trial. The appellant pleaded guilty at the earliest reasonable opportunity.
In all the circumstances, the total effective sentence was a disproportionate response to the overall criminality involved in the offences considered as a whole, and infringed the first limb of the totality principle. The appeal should be allowed and the appellant must be resentenced. The appropriate total effective sentence is 12 years' imprisonment.
The offences
On 24 July 2015, the appellant pleaded guilty to 120 counts on indictment and 5 summary charges which were dealt with pursuant to s 32 of the Sentencing Act 1995 (WA).
The indictment alleged:
•4 counts of sexual penetration of a child under the age of 13 years, contrary to s 320(2) of the Criminal Code (WA);
•24 counts of indecent dealing with a child under the age of 13 years, contrary to s 320(4) of the Criminal Code;
•85 counts of indecently recording a child under the age of 13 years, contrary to s 320(6) of the Criminal Code;
•2 counts of attempting to indecently record a child under the age of 13 years, contrary to s 320(6) and s 552 of the Criminal Code;
•3 counts of indecent acts in public (making an indecent video recording of an unknown female in a public place), contrary to s 203(1)(a) of the Criminal Code; and
•2 counts of possessing child exploitation material, contrary to s 220 of the Criminal Code.
The summary charges comprised:
•1 count of obstructing a public officer, contrary to s 172(2) of the Criminal Code;
•2 counts of possessing drug paraphernalia, contrary to s 7B(6) of the Misuse of Drugs Act 1981 (WA);
•1 count of possessing an unlicensed firearm (paintball gun), contrary to s 19(1) of the Firearms Act 1973 (WA); and
•1 count of possessing an indecent or obscene article, contrary to s 59(5) of the Classifications (Publications, Films and Computer Games) Enforcement Act 1996 (WA).
Circumstances of offending
The appellant offended between 1 January 2012 and 6 January 2015, when he regularly attended the toy section of several Kmart stores with the intention of targeting very young children. He would approach female children aged between 2 and 10 years in the aisle of the toy section, at a time when they were not within their parents' line of sight.
The appellant used a digital recording device to view up the children's skirts and record images of their underwear and bottoms. In some cases he would rub the victim's vagina on the outside of her underwear, or pull the victim's underwear down to reveal her vagina. On occasions he would kiss the victim or encourage the child to poke out her tongue, which he would then suck on. On one occasion the appellant exposed his genitals and had the victim touch his penis. On four occasions, which were the subject of the sexual penetration charges, he penetrated the victim's vagina with two fingers.
Generally, the victims were unidentified, although a 4‑year‑old girl was identified as the victim of an indecent dealing on 30 December 2014, which involved an indecent recording and rubbing her vagina over her underwear. In that case, the girl's father, who was in the adjacent aisle, interrupted the appellant who then fled the scene.
On one occasion, the recording device was used to film up the skirt of an unknown woman or girl at a Kmart store. On two occasions, the appellant used a recording device to film up the skirts of unidentified girls wearing a school uniform. It was common ground at sentencing that, in the absence of proof of the victims' ages, the appellant was to be sentenced for these three offences on the basis that the victims were older than 16 years.
The appellant also rubbed the genital area of a 2 ‑ 3‑year‑old boy, and recorded the incident, at an unknown residence in Perth.
In total, there were 78 victims of the offences referred to above, of which 75 were very young children, in the main between 2 and 6 years old. Nineteen of those children were indecently dealt with. Three of the children who were indecently dealt with were also sexually penetrated. A total of four victims were sexually penetrated.
The appellant was also in possession of the following categories of child exploitation material:
•Category 1: 7,023 images and 41 videos depicting children with no sexual activity, nudity or surreptitious images showing underwear, nakedness, sexually suggestive posing or explicit emphasis on genital areas.
•Category 2: 190 images and 1 video depicting non‑penetrative sexual activity between children or solo masturbation by a child.
•Category 3: 110 images and 9 videos depicting non‑penetrative sexual activity between children and adults.
•Category 4: 620 images and 12 videos depicting children engaged in penetrative sexual activity with adults.
•Category 5: 15 images depicting children involved in sadism.
•Category 6: 3 images of animation, cartoons and comics depicting children engaged in sexual activity or poses.
The images and videos in categories 1 ‑ 5 depicted children ranging between 1 year and 12 years old.
Arrest
On 5 January 2015, the appellant was arrested at the TAB in Warwick Grove on suspicion of indecently recording a female child at the Warwick Kmart earlier that day. After being arrested, the appellant resisted arrest by pushing the police officer in the chest and attempting to flee. He was grabbed by the police officer, and a struggle ensued which lasted about 10 minutes before other police officers arrived to assist.
When arrested, the appellant was in possession of a mobile telephone, on which video footage of some of the offences was located. A subsequent search of the appellant's residence located a computer and a number of data storage devices, which contained recordings of the other offences and the child exploitation material referred to above.
The appellant was interviewed by police on 5 and 12 January 2015, in which he made admissions in relation to owning the devices and recording young children.
Sentences imposed
On 30 July 2015, following his pleas of guilty, the appellant was sentenced to a total effective term of 16 years 6 months' imprisonment and fined $750. The sentences were structured in the following manner.
Indictment
| Count(s) | Offence | Maximum | Sentence | Accumulation |
| 36, 107 ‑ 109 | Sexual penetration of child under 13 | 20 years | 2 ½ years (each) | 10 years cumulative |
| 2 ‑ 4, 6 ‑ 11, 13 ‑ 15, 97, 99 ‑ 100, 103 ‑ 106 | Indecent dealing with child under 13 (rubbing vaginal area) | 10 years | 18 months (each) | 3 years cumulative (counts 3, 11) |
| 102 | Indecent dealing with child under 13 (exposing genitals) | 10 years | 2 years | Concurrent |
| 5, 98, 101 | Indecent dealing with child under 13 (kissing) | 10 years | 12 months (each) | Concurrent |
| 12 | Indecent dealing with child under 13 (victim placed over mobile phone) | 10 years | 12 months | Concurrent |
| 1, 17 ‑ 35, 41 ‑ 96, 112 ‑ 120 | Indecent recording of child under 13 | 10 years | 12 months (each) | 2 years cumulative (counts 1, 120) |
| 16, 40 | Attempted indecent recording of child under 13 | 5 years | 12 months (each) | Concurrent |
| 37 ‑ 39 | Indecent act in public (recording an unknown female) | 2 years | 8 months (each) | Concurrent |
| 110, 111 | Possessing child exploitation material | 7 years | 18 months (each) | 1 ½ years cumulative (count 111) |
Section 32 notice
| Charge | Offence | Maximum | Sentence | Accumulation |
| JO 151/15 | Obstructing an officer | 3 years | 2 months | Concurrent |
| JO 152/15 JO 153/15 | Possessing drug paraphernalia | 3 years and/or fine of $36,000 | 1 month (each) | Concurrent |
| JO 154/15 | Possessing unlicensed firearm | 5 years | 1 month | Concurrent |
| JO 3033/15 | Possessing indecent or obscene article | $5,000 | $750 |
Primary judge's approach
After noting the circumstances of the offending, the primary judge referred to the appellant's personal circumstances. The appellant was aged 50 years at the time of sentence. He had a difficult upbringing, which involved a period of four years in foster care from the age of 3 years and reported physical abuse by a stepfather. The appellant left home at the age of 12 years and lived on the streets until marrying his wife, who he met through the Salvation Army, at the age of 28 years. The appellant and his wife had three children, but they separated about 10 years previously. The appellant did not maintain contact with any of his children. The primary judge noted the appellant's limited employment history and considerable criminal record, which did not include any convictions for sexual offences. He also noted a psychiatric diagnosis of non‑exclusive paedophilia, and said that the psychiatrist, Dr Wojnarowska, was of the opinion that the appellant presented a high risk of reoffending.
The primary judge referred to the victim impact statement of the identified child's parents, and was satisfied that she was deeply troubled by what had happened to her and that the effects on her would be long lasting. He said:
The other victims have not been identified. They were all young children. Common sense dictates that one would expect that the effect of the offending on them would be similar to that experienced by [the identified child] and that as they grow older and are educated in matters of stranger danger and sexuality they would likely be constantly reminded of the offences which were committed on them by you.
It is well recognised that children against whom sexual abuse is committed suffer long‑term adverse effects to their wellbeing, happiness and development.
The primary judge noted that the appellant had cooperated with police and had pleaded guilty. He noted the appellant's expressions of remorse but also noted that the appellant had little victim empathy and had not taken any assertive steps to embark on rehabilitation. The primary judge also thought it relevant that the appellant only ceased his offending when caught. The primary judge further observed:
The nature of the individual sexual offending against these child victims was not in the most serious category. However, balanced against that is the sheer number of victims who were sexually abused by you and the manner in which the offences were committed. That is, each offence was committed in a place where parents would expect their children to be safe. The litany of abuse was appalling.
Over a period of three years, you sexually molested and abused 75 children of tender age, each of whom was unknown to you. You purposely attended toy departments where you knew that there would be young children. You went there with the specific intention to find children who were not in their parents' company and to seize an opportunity to abuse them sexually and to film that abuse for your sexual gratification.
How you were able to abuse so many children over that period of time and to be apprehended only once beggars belief. In some cases, you enticed the children by offering them lollies so as to find some privacy in which you were able to then abuse them. I have viewed samples of the video footage from your mobile phone from which it is obvious that the touching and penetration of children in a sexual way was often not of short duration.
In fact, with respect to counts 113 to 120 which pertained to a single victim, there were nine recordings filmed on your mobile phone which lasted in total 12 minutes. Personal deterrence is particularly important in your case. You are a serial paedophile and you are at high risk of re‑offending. You need to be constantly reminded as best sentencing can that if you act in this manner in the future, you can expect to receive condign punishment.
The community is entitled to protection from you. General deterrence is also an important sentencing consideration. This is every parent's nightmare. Children in our community ought to be safe from those who would prey on them in a sexual manner. Children should be able to undertake enjoyable outings such as shopping in public places without being interfered with.
Parents are these days more vigilant than ever with respect to the care of their children and the community needs to be reminded time and again that those who act in the way you have acted and who steal the innocence of children in our society will be properly punished. The community needs and deserves to be protected from those who act in this way.
After referring to the child exploitation material offences, the primary judge said:
The primary issue is a matter of totality, that is to ensure that the total sentence imposed on you properly reflects your overall criminality and in the circumstances, is not crushing. What I need to do, Mr Lewsam, is that I need to impose a term of imprisonment for each of the counts in the indictment.
Then I need to determine the extent to which terms ought to be served cumulatively or concurrently and then I need to consider the matter of totality in the way I have explained. You've pleaded guilty on the fast‑track system or at the earliest opportunity, at an early time. That plea has resulted in a trial being avoided which is to the benefit of the State, in addition to which [the identified child] and other witnesses were not required to attend at trial.
The primary judge said he would allow a discount of 20% under s 9AA of the Sentencing Act, to reflect the early plea, the fact that the unidentified children would not have been required to testify and the strength of the State's case against the appellant. The sentences set out above were then imposed.
Ground of appeal
The appellant seeks leave to appeal on the ground that the total effective sentence imposed infringed the totality principle of sentencing. The appellant does not contend that any error was involved in fixing the individual sentences for the offences.
General principles
The principles governing this appeal are well established, and were summarised by McLure JA, with whom Steytler P and Miller JA agreed, in Roffey v The State of Western Australia:[1]
The legal principles relevant to the disposition of this appeal are not in dispute. An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different than the sentencing judge. It can only intervene if the sentencing judge has made an express or implied material error of fact or law.
The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341.
The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J).
The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up: R v Holder (260).
[1] Roffey v The State of Western Australia [2007] WASCA 246 [23] ‑ [26].
The alleged breach of the totality principle in this case does not rely on any express error. Rather, the question is whether error can be inferred because the end result is not one that could have been reached in the proper exercise of sentencing discretion. This requires consideration of all relevant sentencing factors to determine whether the sentence imposed was open in the circumstances.[2]
[2] JWD v The State of Western Australia [2013] WASCA 233 [40] ‑ [41].
Parties' positions
The appellant submits that the sentence imposed on him infringes both limbs of the totality principle. He contends that the sentence does not reflect his overall criminality, and that 'the total effective sentence is a crushingly heavy sentence without a proper measure of hope for and encouragement to rehabilitation and reform'.[3]
[3] Particulars to ground of appeal.
The respondent concedes that the appellant's total effective sentence is disproportionate to the overall criminality involved in the appellant's offending and infringes the first limb of the totality principle.[4] The respondent does not concede that the total effective sentence infringes the second limb of the totality principle.
[4] Respondent's submissions, pars 56 and 61.
Resolution of appeal
For the following reasons, the respondent's concession as to the infringement of the first limb of the totality principle should be accepted. It follows that the appeal should be allowed, the primary judge's orders for accumulation and concurrency should be set aside and the appellant resentenced. It is unnecessary to consider whether the total effective sentence also failed to give effect to the second limb of the totality principle.
There is no tariff for sexual offences, and the sentence to be imposed in a particular case depends on its individual facts and circumstances, after having regard to the maximum available penalties. It is nevertheless important, in deciding whether a particular sentence infringes the totality principle, to appreciate what sentences are customarily imposed in cases involving similar offending.[5]
[5] Lim v The State of Western Australia [2010] WASCA 186 [41].
This case presented a difficult sentencing task for the primary judge. None of the cases in this court which counsel have been able to locate are truly comparable with the present case. The present case is unusual in two respects. The first is the very large number of children victimised by the appellant. The second is that, while any sexual offence against a child is inexcusable, the nature of the individual offences committed in the present case was towards the lower end of the scale of seriousness of offences of this type. The unusual nature of the case meant that there was little appellate guidance for the primary judge in applying the totality principle to the circumstances of this case.
There are few decisions of this court dealing with the commission of sexual offences against a large number of victims.
1.In Lim, the offender committed 44 sexual offences against 22 victims over a period of about 4 years and 4 months. The offender targeted intoxicated young men between 17 ‑ 25 years of age. A total effective sentence of 20 years 2 months' imprisonment was found by the majority not to infringe the totality principle. The offending in that case was less serious than the present case in that young children were not involved. However, the individual acts of offending were more egregious, intrusive and sustained than in the present case, and the offender pleaded not guilty to many of the charges.
2.In Hine v The State of Western Australia,[6] the offender pleaded guilty to sexual offences against 11 different victims who were aged between 13 ‑ 15 years. The offender targeted young teenage girls in chat rooms and encouraged them to engage in consensual sexual activity. A total effective sentence of 9 years 2 months' imprisonment was substituted on appeal. The offender in that case was only 23 years of age at the time of sentence, and aged 20 ‑ 22 years at the time of offending. The court regarded the limited disparity between the ages of the offender and his victims as significant. The offender also suffered from a disability which affected his social development, and had only minimal prior contact with the criminal justice system.
3.In Pendleton v The Queen,[7] the offender was convicted of offences against 11 young girls aged between 4 and 5 years. However, the convictions in relation to all but one of the victims related to indecent recording only. There were a large number of counts involving one child, which included indecent dealing by touching her vagina and digital penetration of her vagina and anus. A pre‑transitional sentence of 12 years' imprisonment was imposed together with an order for indefinite imprisonment. The offender's appeal against the imposition of an indefinite sentence was allowed. However, there was no challenge to the fixed term by any party. Further, as was noted in AIM v The State of Western Australia,[8] the decision in Pendleton is also of limited utility given the subsequent firming up of sentences in relation to sexual offences against children.
4.Do v The State of Western Australia[9] involved a parent‑helper at a school indecently recording a number of children, aged between 6 and 12 years, in change rooms. He was also convicted after trial of indecently touching or digitally penetrating seven boys aged 6 ‑ 9 years over a period of approximately three years, and indecently touching the 6‑year‑old child of a family friend. The offender was also found in possession of a significant quantity of child exploitation material, although he had fewer images in category 4 than were found in the appellant's possession and none in category 5. A total effective sentence of 8 years' imprisonment was substituted on appeal.
[6] Hine v The State of Western Australia [2010] WASCA 216.
[7] Pendleton v The Queen [2002] WASCA 4.
[8] AIM v The State of Western Australia [2014] WASCA 155 [41].
[9] Do v The State of Western Australia [2013] WASCA 218.
Although the decisions identified in the previous paragraph all involved a significant number of victims, the circumstances were so different that none of the cases are truly comparable to the present. In addition to the differences already noted, none of the cases involved nearly as many victims as the present.
Sentences for the commission of multiple sexual offences against children were reviewed in VIM v The State of Western Australia;[10] The State of Western Australia v Prince;[11] ERA v The State of Western Australia[12] and GHK v The State of Western Australia.[13] It is unnecessary to repeat the detail of that analysis here.
[10] VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 [287] ‑ [315].
[11] The State of Western Australia v Prince [2011] WASCA 22 [20].
[12] ERA v The State of Western Australia [2013] WASCA 163 [96] ‑ [118], [123] ‑ [128].
[13] GHK v The State of Western Australia [2014] WASCA 19; (2014) 238 A Crim R 178 [17] ‑ [18], [33].
In GHK, it was observed that the highest total effective sentences imposed for child sexual offending in this State were (in post‑transitional terms) 14 years in GHS v The State of Western Australia;[14] 14 years 6 months in KMB v The State of Western Australia;[15] 14 years in SWD v The State of Western Australia[16] and 16 years in ERA. In GHK, a total effective sentence of 14 years' imprisonment was substituted on appeal.
[14] GHS v The State of Western Australia [2006] WASCA 42.
[15] KMB v The State of Western Australia [2010] WASCA 212.
[16] SWD v The State of Western Australia [2012] WASCA 76.
There were a number of common features to those cases. The offenders other than GHK[17] were all sentenced after trial, and so did not have the mitigating effect of a plea of guilty which was found in the present case. The cases all involved penile penetration of the child victim. The cases also involved sustained sexual abuse of the victims over a considerable period of time. The cases all involved intra‑familial sexual abuse involving a gross breach of trust. There was, in each case, a large age difference between the offender and his victims. In all cases but KMB there were multiple victims. In each case, far fewer victims were involved than in the present (two victims in GHS and SWD, four in ERA and six in GHK). In each case it was clear that the offending had a devastating effect on the victims.
[17] Who received a 15% discount for pleas of guilty to a substituted indictment on the first day of trial.
In the present case the appellant pleaded guilty at the first reasonable opportunity. The appellant's most serious offending conduct, involving digital penetration over a short period of time and having one child touch his penis, was of a much lower order of seriousness than that considered in the above cases. The total effective sentence imposed on the appellant after an early plea of guilty was longer than that imposed in any other case involving the sexual abuse of children which has been identified by the court or the parties.
The large number of victims in the present case is an important factor to consider. The existence of multiple victims, and the commission of the offences over a period of about three years, clearly called for substantial accumulation of the sentences imposed for individual offences. However, it is also necessary to take account of the fact that, in contrast to cases such as GHK, GHS, KMB, SWD and ERA, none of the victims was subject to other than relatively brief isolated offending. The individual offences committed in the present case were generally of a significantly less serious nature than the individual offending which occurred in GHK, GHS, KMB, SWD or ERA.
The aggravating factors commonly associated with repeated sustained intra‑familial abuse - deprivation of much or the whole of the victim's childhood and potential for normal development[18] - are absent in the present case. That is not to say that the seriousness of the appellant's offending is mitigated by the fact that many of his victims may have been unaware of the offending. Considered as a whole, the appellant's continuous planned course of offending against 75 children was undoubtedly very serious. That conduct occurred over an extended period of time, and involved taking the opportunity to abuse victims who, by virtue of their young age, were particularly vulnerable.
[18] See VIM [291] ‑ [294].
However, the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case (including those referable to the offender personally) was not as great as that involved in GHK, GHS, KMB, SWD or ERA. The intrusiveness of the contact and impact on the victims was much less in the present case, and the period over which offences occurred was no greater. There is nothing in the appellant's personal circumstances which warrants a departure from the customary approach. The greater number of the appellant's victims, while significant, does not lead to the conclusion that the overall criminality involved in all the appellant's offences was equal to or greater than the overall criminality involved in those other cases.
Of course, where this court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, this court's decision on the sentencing outcome does not, of itself, fix the upper limit of the range.[19] A single case or indeed a small number of cases cannot establish the range of sentences customarily imposed or even the appropriate range of sentences.[20] The total effective sentence in the present case must be assessed against the range of cases referred to in VIM and Prince, as well as the most serious examples of offending to which I have referred.
[19] Neumann v The State of Western Australia [2013] WASCA 70 [30].
[20] Trompler v The State of Western Australia [2008] WASCA 265 [37].
When the present case is considered against the customary sentencing standards for sexual offences against children, including the most serious cases referred to above, the total effective sentence in this case can be seen to exceed that required to reflect the overall criminality involved having regard to all of the circumstances. The total effective sentence does not bear a proper relationship to the overall criminality involved in the offences considered as a whole, having regard to all of the circumstances of the offending and the offender and all relevant sentencing principles. Therefore, the respondent's concession that the first limb of the totality principle was infringed must be accepted. The appeal should be allowed.
Resentencing
It is then necessary for this court (which has the necessary material) to resentence the appellant.
While not as serious as the course of offending which would customarily attract a total effective sentence approaching 16 years' imprisonment, the appellant's conduct was reprehensible. As noted above, the appellant clearly acted in a premeditated manner on a large number of occasions to target 75 children with whom he had no connection. Those children were, as the primary judge noted, entitled to feel safe playing in the toy aisle of a department store. The appellant took advantage of the vulnerability of those small children to satisfy his own deviant sexual urges.
The offences relating to child exploitation material were also very serious, involving the possession of a significant number of images depicting children engaged in penetrative sexual activity with adults and some depicting children involved in sadism. As was noted in The State of Western Australia v McCarthy:[21]
Offences relating to CEM are not victimless crimes. Those who possess and distribute this material encourage its production which involves and depicts the abuse, exploitation, humiliation and corruption of children who are vulnerable and incapable of protecting themselves. The harm caused to these children is incalculable. In a very real sense, those who possess or distribute this material encourage further child abuse.
[21] The State of Western Australia v McCarthy [2014] WASCA 210 [71].
Of course, the appellant also participated in child abuse by indecently recording his victims, in some cases while indecently dealing with or sexually penetrating them.
The only substantial mitigating factor was the appellant's early plea of guilty to the offence.
Substantial accumulation of the sentences is required to give effect to the sentencing considerations of specific and general deterrence and community protection which predominate in cases of this kind. The appellant has demonstrated a willingness to act on his paedophilic urges to the detriment of many victims. The sentence to be imposed must involve imprisonment for a period which will deter the appellant from further offending and protect the community from the risk of future sexual offending against children which he presents.
The appellant does not complain about any of the individual sentences imposed for his offences. In all the circumstances, the sentences for the individual counts should be those imposed by the primary judge.
Having regard to the total criminality involved in the appellant's conduct and all of the circumstances of the case, I would impose a total effective sentence of 12 years' imprisonment, structured in the manner indicated below and backdated to 5 January 2015 to take account of time spent in custody.
Orders
For the above reasons, I would make the following orders:
1.The appeal be allowed.
2.The orders for accumulation and concurrency made by the primary judge be set aside, and the individual sentences stand.
3.The following sentences are to be served cumulatively upon the sentence imposed for count 36 (sexual penetration - 2 years 6 months' imprisonment):
(a)count 1 (indecent recording - 12 months' imprisonment);
(b)count 5 (indecent dealing - 12 months' imprisonment);
(c)count 107 (sexual penetration - 2 years 6 months' imprisonment);
(d)count 108 (sexual penetration - 2 years 6 months' imprisonment); and
(e)count 109 (sexual penetration - 2 years 6 months' imprisonment).
4.The individual sentences of imprisonment for all other counts be served concurrently with each other and with the individual sentence imposed for count 36.
5.The appellant be eligible for parole.
6.The individual sentence for count 36, and the total effective sentence of 12 years' imprisonment, be backdated to 5 January 2015.
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