"LJW" v The State of Western Australia [No 2]
[2007] WASCA 275
•14 DECEMBER 2007
"LJW" -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2007] WASCA 275
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASCA 275 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:16/2007 | 9 NOVEMBER 2007 | |
| Coram: | STEYTLER P McLURE JA MILLER JA | 13/12/07 | |
| 29 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused in relation to grounds 1A, 1, 2, 3 and 5 Appeal dismissed in relation to ground 4 | ||
| D | |||
| PDF Version |
| Parties: | "LJW" THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Sentencing Causing a sedative to be administered to another (Criminal Code s 301(2)) Unlawful and indecent assault by positioning a person to expose her vagina and doing an act likely to seriously and substantially degrade or humiliate the victim Offender administering sedatives so as to cause victim to fall asleep Offender photographing wife asleep and naked on bed Offender gaining access to pornographic websites through photographs Photographs remaining encrypted Victim humiliated Sentences of 8 months and 16 months' imprisonment respectively to be served cumulatively Aggregate sentence of 2 years' imprisonment Whether manifestly excessive Whether sentencing judge erred in failing to suspend sentences Criminal practice and procedure 'Plea bargain' Not honoured before sentencing judge Whether judge bound by any such agreement Whether unfairness in sentencing process |
Legislation: | Criminal Appeals Act 2004 (WA), s 40(1)(e) Criminal Code, s 221, s 301(2), s 319, s 324 Sentencing Act 1995 (WA), pt 11, pt 12 |
Case References: | Bell v The Queen [2001] WASCA 40 Chan (1989) 38 A Crim R 337 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Faure v The State of Western Australia [2004] WASCA 315 GAS v The Queen [2004] HCA 22; (2004) 217 CLR 198 Glover v Reyne [2001] WASCA 305; (2001) 124 A Crim R 496 Jarvis v The Queen (1998) 20 WAR 201 Murray v Northcott [1990] WAR 219 Postiglione v The Queen [1997] HCA 26; (1996) 189 CLR 295 R v Olbrich [1999] HCA 54; (1999) 199 CLR 270 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : "LJW" -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2007] WASCA 275 CORAM : STEYTLER P
- McLURE JA
MILLER JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : McCANN DCJ
File No : IND 1441 of 2005
Catchwords:
Criminal law - Sentencing - Causing a sedative to be administered to another (Criminal Code s 301(2)) - Unlawful and indecent assault by positioning a person to expose her vagina and doing an act likely to seriously and substantially degrade or humiliate the victim - Offender administering sedatives
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so as to cause victim to fall asleep - Offender photographing wife asleep and naked on bed - Offender gaining access to pornographic websites through photographs - Photographs remaining encrypted - Victim humiliated - Sentences of 8 months and 16 months' imprisonment respectively to be served cumulatively - Aggregate sentence of 2 years' imprisonment - Whether manifestly excessive - Whether sentencing judge erred in failing to suspend sentences
Criminal practice and procedure - 'Plea bargain' - Not honoured before sentencing judge - Whether judge bound by any such agreement - Whether unfairness in sentencing process
Legislation:
Criminal Appeals Act 2004 (WA), s 40(1)(e)
Criminal Code, s 221, s 301(2), s 319, s 324
Sentencing Act 1995 (WA), pt 11, pt 12
Result:
Leave to appeal refused in relation to grounds 1A, 1, 2, 3 and 5
Appeal dismissed in relation to ground 4
Category: D
Representation:
Counsel:
Appellant : Mr C P Shanahan SC & Ms L B Black
Respondent : Mr J Mactaggart
Solicitors:
Appellant : Kott Gunning
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bell v The Queen [2001] WASCA 40
Chan (1989) 38 A Crim R 337
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Faure v The State of Western Australia [2004] WASCA 315
GAS v The Queen [2004] HCA 22; (2004) 217 CLR 198
Glover v Reyne [2001] WASCA 305; (2001) 124 A Crim R 496
Jarvis v The Queen (1998) 20 WAR 201
Murray v Northcott [1990] WAR 219
Postiglione v The Queen [1997] HCA 26; (1996) 189 CLR 295
R v Olbrich [1999] HCA 54; (1999) 199 CLR 270
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1 STEYTLER P: I have had the advantage of reading the judgment of Miller JA. I agree with it, save that I propose to make some comments of my own concerning ground 1A and to add a few comments with respect to grounds 1, 2 and 3.
Ground 1A
2 Ground 1A raises what is said to have been a 'breach' of a 'plea bargain'. The 'plea bargain' is said to have arisen in the following way. The then counsel for the appellant, Mr Robert Young, and the prosecutor then having the carriage of the matter, Ms Fiona Clare, engaged in what has been described as 'a plea negotiation' in respect of the two offences with which the appellant was charged. Those negotiations are said to have 'culminated in a plea bargain being made between the Appellant and the Office of the Director of Public Prosecutions'. We were not told the precise terms of the 'plea bargain', save that Ms Clare is said to have undertaken, in effect, to inform the sentencing judge either that she would not oppose a suspended sentence or that, in the circumstances, a suspended sentence would be appropriate.
3 That 'bargain' is said to have been breached by Ms Clare on two occasions. The sentencing proceedings took place during two separate hearings. At the first hearing, on 14 February 2007, Ms Clare said:
It is quite obvious, your Honour, that the State is seeking a term of imprisonment. In fact, the State is seeking a term of imprisonment to be imposed on both counts and that they be made cumulative upon each other.
...
Having said that a term of imprisonment is not only open but appropriate in this case, and to assist your Honour as to a decision as to whether that term should be served immediately or suspended, I can indicate that the State accepts the following …
4 She later concluded her submission by saying:
Your Honour, given that personal and general deterrence, the State would say, are the primary considerations in this case and given my submissions I have just made on the need for counselling, it may be that your Honour could suspend the term of imprisonment contingent upon a program, impose a conditional suspended imprisonment order that forces the offender to seek the root of his problem, otherwise, your Honour, it is unlikely that a suspended term of imprisonment will address either personal deterrence or general deterrence.
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5 Mr Young had earlier submitted to the sentencing judge on the appellant's behalf that, if a sentence of imprisonment was appropriate, it should be suspended. However, he had also made the submission that a lesser penalty such as a fine was appropriate and that a spent conviction order should be made.
6 The proceedings were adjourned until 20 February 2007. In the interim, Mr Young and Ms Clare exchanged emails. Mr Young suggested that Ms Clare's 'submission as to a suspended term was far from convincing'. He said that it troubled him in the light of the discussions that had taken place. Ms Clare responded by saying that she had been 'in a difficult position given some of the submissions made in mitigation'. She said that she was concerned that the seriousness of the situation was being undervalued. She added that she was surprised at the submissions made by Mr Young, 'given our negotiations'. She went on to say that she had not been 'trying to renege on our agreement' but that she was, nevertheless, willing to repeat in court that the State did not oppose a conditional suspended term in the circumstances.
7 When the sentencing proceedings resumed, Ms Clare reiterated her position as follows:
The State's submission remains that a term of imprisonment is appropriate in this case but given other factors that are before your Honour, it may be that a conditional suspended imprisonment can be imposed in this case …
8 The appellant contends, by ground 1A, that:
As a result [of the breach of the plea bargain] the Appellant was sentenced: -
(a) on a basis other than that agreed upon [in] the Plea Bargain;
(b) by the sentencing Judge when the sentencing Judge was not aware of the Respondent's agreed position pursuant to the Plea Bargain, and
(c) without the benefit of the Plea Bargain,
which meant that the sentencing process in this instance was inherently unfair and unlawful because it was obtained on a false premise, and the Appellant's plea was not, in these circumstances, freely given.
9 Counsel for the appellant does not contend that the plea of guilty should be set aside, notwithstanding the contention in the ground of appeal that 'the appellant's plea was not, in [the] circumstances, freely given'. That is presumably because an attempt to set aside the plea upon
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- the basis outlined would have had little prospect of success. There is no suggestion that the appellant did not understand the nature of the charges against him or that he did not intend to admit his guilt in respect of them: see Murray v Northcott [1990] WAR 219; Glover v Reyne [2001] WASCA 305; (2001) 124 A Crim R 496 [39] and the cases there referred to. The pleas were inevitable having regard for the fact that the appellant had freely confessed his guilt in respect of both charges in the course of a videotaped interview with the police. His counsel acknowledged, in the course of his submissions in the appeal, that the appellant 'accepts that he has committed the offences'.
10 The appellant is consequently left only with his contention that the sentencing process was 'inherently unfair and unlawful because it was obtained on a false premise'. However, even if that contention was to be made good, the appellant can only succeed if this court considers that a different sentence should have been imposed: s 31(4) of the Criminal Appeals Act 2004 (WA). For the reasons given by Miller JA, it seems to me that the individual sentences and the total sentence imposed in this case were appropriate. It also seems to me, again for the reasons given by Miller JA, that in the circumstances of this case it was not appropriate to suspend the terms of imprisonment imposed. I would not have imposed any different sentence.
11 While that conclusion is enough to dispose of ground 1A, there are other reasons for declining to uphold that ground.
12 There is no suggestion (and nor could there be) that the sentencing judge was in any way a party to the 'plea bargain'. The appellant made his decision (which, as I have said, was inevitable) with the benefit of legal advice. Consequently, he must have known that the trial judge was not bound by the prosecutor's view of what might be an appropriate sentence or by any understanding arrived at between the parties in that respect. It was for the sentencing judge, alone, to decide the sentence to be imposed: GAS v The Queen [2004] HCA 22; (2004) 217 CLR 198 [30], although he would, of course do so only after taking into account the submissions made to him, including any by the prosecutor concerning the State's view of what might be an appropriate sentence.
13 The breach of the 'plea bargain' asserted by the appellant is that, instead of submitting to the sentencing judge that, in this case, a suspended sentence was appropriate, Ms Clare said only that 'it may be that [the court] could suspend the term of imprisonment contingent upon a program' (at the earliest sentencing hearing) and that 'it may be that a
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- conditional suspended imprisonment can be imposed' (at the later sentencing hearing). However, that possibility was firmly rejected by the sentencing judge in terms that make it plain that a similar fate would have followed a submission by Ms Clare to the effect that a suspended sentence was appropriate in the circumstances. The sentencing judge said in that respect that he had taken into account the fact that the State had countenanced the possibility of a suspended term of imprisonment, but that he should stress that nothing the State said was binding on him in any way. Having considered the relevant circumstances, he went on to say that the offences were too serious to merit suspension and that immediate imprisonment was the only disposition that was appropriate.
14 The next point that might be made in this respect (it has been made by Miller JA in his reasons) is that the remedy for 'breach' of the 'plea bargain' lay in the appellant's own hands. His counsel could have raised the issue with the sentencing judge. However, he chose not to do so. Had he raised the issue, and if the sentencing judge had then said (as seems very probable) that this did not alter his view of what was the appropriate sentence, there could have been no complaint to this court on that account.
15 It is important to bear in mind that a 'plea bargain' of the kind that is said to have been made in this case is not an agreement in the technical sense of that word. It should be very clearly understood that it would be quite improper, and a breach of the duty owed by the prosecutor to the court, for a prosecutor to agree, for whatever reason, that he or she will make a submission to a court that is contrary to that person's understanding of the legal position or, in the case of sentencing proceedings, that is contrary to the prosecutor's understanding of what would, or would not, be an appropriate sentence to be imposed. The guidelines published by the Office of the Director of Public Prosecutions reflect this. Guideline 9 makes it plain that a prosecutor represents the community, and not any private or sectional interest. Guideline 11 is to the effect that the duty of the prosecutor is to act fairly and impartially to assist the court to arrive at the truth. Importantly, Guideline 13 provides that the prosecutor must not advance any argument that does not carry weight in his or her own mind.
16 It necessarily follows that if a 'plea bargain' has been reached upon the basis of what is subsequently discovered to have been a misunderstanding of the legal position, a prosecutor cannot be held to it if that would result in him or her having to make a misleading submission to the court. The appropriate process to be followed in such an event is for the prosecutor to notify opposing counsel of the misunderstanding and of
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- the fact that he or she is no longer able to implement the earlier understanding. This should be done at once, before the hearing, so as to enable the defendant to reconsider his or her position in the light of the notification. A prosecutor has a duty of ensuring that his or her case is presented properly and with fairness to the accused (this is reflected in Guideline 11). This duty requires that, where there is, for valid reasons, a need to depart from some prior understanding, or from a previous statement of present intention to make a particular submission, this should be made plain to opposing counsel at the earliest possible opportunity so that he or she can consider the defendant's position in the light of it.
17 Finally, I should emphasise that 'plea bargains' should never be made by any counsel (whether prosecution or defence) without first gaining a full understanding of the facts and applicable law. If that is done (as it should be, for a variety of reasons), the prospect of a later change of attitude will be greatly reduced.
Grounds 1, 2 and 3
18 Ground 1 contends that the sentence of 16 months' imprisonment imposed with respect to count 2 was manifestly excessive, having regard to a number of matters that have been particularised. Ground 3 relies upon those, and other, factors in support of the proposition that the terms of imprisonment imposed by the sentencing judge should have been suspended.
19 Submissions are often made to this court, in supposed support of grounds of this kind, to the effect that the trial judge gave insufficient weight to one or more of the factors particularised in support of the claim that a sentence was manifestly excessive (or manifestly inadequate). We sometimes hear a submission, in response, that all of the factors relied upon were taken into account. It is important to emphasise that a claim of manifest excess requires the court to form a conclusion, after considering the sentence imposed in the context of the maximum sentence prescribed by law, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on a scale of seriousness of crimes of that type and the personal circumstances of the offender: Chan (1989) 38 A Crim R 337, 342. Submissions made as regards the supposed giving of inadequate weight to one or other of the relevant sentencing considerations or, in response, to the effect that all relevant considerations were taken into account, are of little assistance in this context. While a ground of manifest excess (or manifest inadequacy) must obviously be considered in the light of all of the relevant
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- considerations (and one or all of these can properly be highlighted by counsel), a ground of that kind does not rely upon attribution of identified specific error in the reasoning of the sentencing judge, as opposed to inferred error arising out of the conclusion arrived at by him or her. In Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [6], Gleeson CJ and Hayne J said, of the conclusion that a sentence is manifestly excessive (or manifestly inadequate), that:
It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short.
21 It also seems to me, for the reasons given by Miller JA, that it was appropriate for the sentencing judge to have accumulated the sentences imposed in respect of the two counts. The seriousness of the second count, which related to an entirely distinct offence committed at a different time to that in count 1, is patent. The risks inherent in secretly administering a stupefying drug are exemplified by the complainant's victim impact statement. As might readily have been anticipated by the appellant, the complainant began collapsing for no apparent reason. She became very concerned. She referred to occasions, when driving her children home from school, in the course of which she had to pull over because she was nodding off to sleep. She said that she 'constantly felt washed out, spaced out and exhausted and an inferior mother'. There was a period of years when she never drove at night because she was afraid of not being able to focus and drive properly. She feared that she might be suffering from a brain tumour.
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22 Of course, the appellant was charged with only one instance of administering a sedative (although it was said to be a 'representative' count) and there is no evidence that he knew of the consequences referred to in the victim impact statement. However, the offence charged must be considered in the light of the fact that it was not isolated, or committed on the spur of the moment. Also, it should have been obvious to the appellant that there were real risks in even a single secret administration of a sedative that could be acquired only by means of a doctor's prescription. The victim would have had no idea that she was about to experience the effects of the drug, or why she was experiencing them, once the drug took effect, or for how long she would continue to experience those effects.
23 Finally, so far as ground 3 is concerned, I should reiterate that in my opinion, for the reasons given by Miller JA, the seriousness of the appellant's offending behaviour was such that it was not open to the sentencing judge to suspend the sentences of imprisonment imposed.
Conclusion
24 I would dismiss the appeal.
25 McLURE JA: I agree with Steytler P.
26 MILLER JA: The appellant pleaded guilty in the District Court at Perth to two counts on an indictment which read:
(1) Between 1 August 2001 and 4 November 2001 at Darlington [the appellant] unlawfully and with intent to injure or annoy [the complainant], caused noxious thing, namely a sedative, to be administered to [the complainant].
(2) On the same date and at the same place [the appellant] unlawfully and indecently assaulted [the complainant], by positioning her to expose her vagina.
And that [the appellant] did an act which was likely seriously and substantially to degrade or humiliate [the complainant], namely photographing her.
- Although count 2 alleged that the offence occurred on the same date and at the same place as count 1, this contention reflected the original terms of count 1 (which alleged a specified date) and was not amended to account for the change of dates in count 1. No point was taken at the hearing of the appeal about this.
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27 The first count on the indictment was an offence against s 301(2) of the Criminal Code. No circumstance of aggravation was alleged in the count (Criminal Code s 221) and the maximum penalty applicable was therefore 5 years. Count 2 on the indictment was an offence against s 324 of the Criminal Code. It is the offence of aggravated indecent assault. The circumstance of aggravation (Criminal Code s 319) was that the offence was committed in circumstances in which the offender did an act which was likely to seriously and substantially degrade or humiliate the victim. That circumstance of aggravation was pleaded in the indictment. The maximum term of imprisonment applicable was 7 years' imprisonment.
28 The appellant was sentenced to imprisonment on the first count to a term of 8 months' imprisonment and on the second count to a term of 16 months' imprisonment. Those sentences were ordered to be served cumulatively and to be served immediately. Consideration was given to the question of suspension of the terms of imprisonment, but the learned sentencing judge declined to order suspension. The aggregate sentence was, thus, 2 years' imprisonment with an order for eligibility for parole. There were other consequential orders which included destruction of drugs and an order made in relation to the appellant's computer.
29 The appellant originally sought to appeal against the sentences imposed by the learned sentencing judge on five grounds. On one of those (ground 4), Wheeler JA gave leave to appeal, directing that grounds 1, 2, 3 and 5 should be referred to the Court of Appeal to be heard with the appeal.
30 Two days before the hearing of the appeal, the appellant sought leave to argue an additional ground of appeal and to make consequential and other amendments to the previous grounds of appeal. Application was also made for leave to adduce other evidence, pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA).
31 The court gave leave to the appellant to argue the grounds as amended, but indicated that leave in respect of the new ground of appeal (ground 1A) would be considered together with the question of leave in relation to grounds 1, 2, 3 and 5.
Grounds of appeal
32 The grounds of appeal as amended are lengthy. The new ground 1A contends that a 'plea bargain' had been reached between the appellant and the respondent prior to the sentencing hearing in circumstances in which
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- the appellant undertook to plead guilty on condition that the respondent would support a particular course with respect to sentencing. That 'plea bargain' is alleged to have been breached, so that the appellant was sentenced on a basis other than agreed. It is contended that the sentencing process was, thus, 'inherently unfair and unlawful', having been obtained on a false premise.
33 Ground 1 contends that the sentence of 16 months' imprisonment on count 2 was manifestly excessive for reasons which are particularised. Ground 2 contends that the learned sentencing judge was in error in ordering accumulation of sentences. Ground 3 contends that the learned sentencing judge erred in declining to order that the sentence of imprisonment be suspended. Grounds 4 and 5 allege errors on the part of the learned sentencing judge in the sentencing process. Ground 4 contends that the learned sentencing judge had no regard to the significant delay between the occurrence of the offence and the ultimate sentencing of the appellant. Ground 5 contends that the learned sentencing judge erred in concluding that the appellant's remorse was 'diluted'.
The facts
34 At the sentencing hearing, the prosecutor recounted the facts of the case. The complainant in the case was a 50-year-old woman at the time of sentencing. The appellant, her husband, was 46. They had married in 1983 and there were four children of the marriage. They resided in Darlington. On 6 October 2002, the complainant was attending to emails on the family computer. She clicked onto the 'sent items' box and came upon a title 'Email wife drunk, passed out and fucked'. She opened this title and discovered photographs of herself lying on her bed in her bedroom naked and unconscious. She had never seen the photographs before. She had never posed for them. She had no memory of them ever being taken. She was naturally very upset. Because of social commitments, she was unable to confront the appellant until later in the evening. She told him that he was to leave the family home that night. He did not leave then, but the parties later separated.
35 Later analysis of the computer revealed that the appellant had applied for and gained membership to a number of websites. He had also accessed a number of sites. These websites had titles such as 'Drunken Passed-Out Pics', 'Unconscious Female Fetish', 'Real Drunk Girls', 'Passed-Out Nude Pics', 'Sleeping Girls Lovers', 'Stripped Naked While Drunk' and 'Out Cold XXXX'. The appellant gained membership of some of these websites by submitting to them the photographs he had taken of
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- the complainant. He said that the photographs of the complainant were encrypted. He did not think that those who ran the websites could actually see the images. The evidence on this point is not clear. There was, however, no proof that anyone actually saw the photographs and it was on this basis that the learned sentencing judge dealt with the appellant.
36 The appellant admitted to having photographed the complainant naked on the bed. He admitted to moving her into a position to enable him to photograph her vagina. Copies of the photographs have been made available to the court. They include a photograph which shows the complainant lying on her back on the bed, naked and with her legs wide apart exposing her vagina. They are graphic photographs.
37 The appellant said that he had taken the photographs on the night of the Darlington Arts Festival on 3 November 2001. He said that the complainant had been at the Arts Festival during the day and had drunk a substantial amount of wine, as a result of which she had passed out and he had placed her on the bed. The transcript of a record of interview conducted by investigating detectives with the appellant on 3 November 2004 indicates that the appellant admitted to moving the complainant into position to photograph her. He said it was not his initial intention to use the photographs to gain access to websites on the Internet, but he later admitted that he had placed the photographs (although encrypted) on the Internet to 'gain access for my own self-gratification'. He admitted that the complainant was totally unaware that she had been photographed. These were the circumstances which related to the second count on the indictment.
38 The first count on the indictment was described as having a 'representative basis'. The appellant admitted to investigating officers that, over the course of 10 years, he had, on five or six occasions, stupefied the complainant with drugs. He said that he used sleeping tablets and Rohypnol which he had stolen from his mother. The offence the subject of the first count on the indictment was simply one of the occasions upon which the appellant had stupefied the complainant in this way.
Sentencing
39 The learned sentencing judge first dealt with the facts of the case. He observed that the offence which constituted the first count on the indictment had occurred at a different time from that which constituted the second count. The appellant had caused the complainant to ingest
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- sedatives, in particular benzodiazepines, so as to cause her to fall asleep. He noted expert testimony which suggested that the sedatives would take many hours to wear off, and his Honour found that the administration of the sedatives was intended to make the complainant fall asleep in circumstances in which she was unaware of what she was taking. The learned sentencing judge accepted that the appellant had administered the sedatives to 'get some respite from what [the appellant] regarded as her unpleasant behaviour'.
40 After reciting the facts which underlay count 2 on the indictment, the learned sentencing judge noted that the gravamen of the offence was the humiliation of the victim. His Honour observed that this humiliation was 'pronounced once she found out what [the appellant] had done'.
41 In sentencing the appellant, the learned sentencing judge considered both offences to be serious, but the second count on the indictment to be extremely serious. His Honour considered that there some aggravating factors in relation to both counts. In relation to count 1, there was a real risk to the complainant's health, although it was impossible to say what the extent of that risk was, save that secret administration of powerful sedatives is clearly a serious matter.
42 The learned sentencing judge took account of the fact that the offence which constituted count 1 was not opportunistic, but clearly premeditated. A supply of sedatives had been hidden in the house and the offence which constituted count 1 was the culmination of five or six offences of its kind. There was a breach of trust involved.
43 In relation to count 2, the learned sentencing judge again found that the offence was not opportunistic in nature. The evidence of the email was said to clearly establish this fact. The offence was said to be a gross breach of trust. His Honour added:
It goes without saying that the photographing of the complainant after you had assaulted her and then emailing the photographs to others and leaving the photographs where [the complainant] could find them is a serious circumstance of aggravation involving grievous humiliation and degradation of her.
The fact that they were encrypted or are said to be encrypted makes little difference in my view. There is always the possibility that someone could decrypt them, but the point is in my view they were left in a readable formal on the family computer where anyone could find them, in fact with a titled on the attached email which would attract attention and which in its own words was grossly demeaning of [the complainant].
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44 The learned sentencing judge considered matters personal to the appellant. He was 46 years of age and the father of four children, all of whom were adults except one. He had experienced a successful career as an auctioneer and real estate agent, and had excellent references. He had no criminal history and was to be treated as a first offender. It was noted that he had attended counselling after separation from the complainant in 2002 and had complied with financial obligations consequential upon the separation.
45 The learned sentencing judge concluded that there were mitigating factors. They included the plea of guilty to both counts. The pleas were late, but the learned sentencing judge accepted that there was a delay in pleas by reason of the fact that a more serious version of count 1 had originally been the subject of the indictment. The learned sentencing judge took into account the fact that the appellant showed some remorse, but considered that it was 'somewhat diluted in nature'. In this respect, his Honour observed the demeanour of the appellant on the video record of interview, which he described as 'businesslike and perfunctory'.
46 The learned sentencing judge stated that the prosecution would have had difficulty in proving the first count on the indictment had it not been for the appellant's admissions. In relation to the second count, the admissions made were considered to be of much less mitigatory force because of the strength of the prosecution case.
47 The learned sentencing judge took account of the significant financial and professional loss and personal shame and humiliation that the appellant would suffer as a consequence of his convictions. However, he thought general deterrence was essential, stating:
Drugging one's partner or anyone else, for that matter, is a serious matter as is abusing their body whilst they're incapable because of unconsciousness, especially for pornographic purposes to which the victim did not consent and would never have consented, and which were likely to cause grievous humiliation and degradation and in fact did so.
48 The learned sentencing judge concluded that only sentences of imprisonment were appropriate in relation to both counts on the indictment. The sentences imposed were 8 months' imprisonment on the first count and 16 months' imprisonment on the second. They were ordered to be served cumulatively, making an aggregate sentence of 2 years' imprisonment.
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49 The learned sentencing judge turned his mind to the question of suspension of sentence, but determined that, notwithstanding all matters that could be said on behalf of the appellant, the offences were too serious to merit suspension and the only appropriate disposition was a sentence of imprisonment to be served immediately.
50 In determining that the sentences should be served cumulatively, the learned sentencing judge took account of the overall criminality of the appellant's conduct and had a 'last look' at the sentences to ensure that the overall disposition was not overly harsh or punitive. The totality principle was, thus, clearly taken into account.
Ground 1A
51 It appears from correspondence between the appellant's solicitors and the office of the Director of Public Prosecutions that there was an agreement that the prosecution would support the submission that a conditional suspended sentence would be an appropriate disposition of the matter in relation to both counts on the indictment, but, for one reason or another, this submission was not made entirely clear.
52 Counsel for the appellant sought to put before the court a series of emails between the appellant's trial counsel, Mr Young, and a DPP officer, Ms Clare. It was Ms Clare who appeared at the sentencing hearing. These emails consisted of a discussion about the submission made by Ms Clare at the sentencing hearing; namely, that a sentence of imprisonment in relation to each count was appropriate. At the initial sentencing hearing on 14 February 2007, Ms Clare said:
It is quite obvious, your Honour, that the state is seeking a term of imprisonment. In fact, the state is seeking a term of imprisonment to be imposed on both counts and that they be made cumulative upon each other.
...
Having said that a term of imprisonment is not only open but appropriate in this case, and to assist your Honour as to a decision as to whether that term should be served immediately or suspended, I can indicate that the state accepts the following ...
- Ms Clare then made reference to the time at which the plea of guilty was entered, the attitude of the appellant on the video record of interview and the question of remorse. She closed her submissions as follows:
Your Honour, given that personal and general deterrence, the state would say, are the primary considerations in this case and given by submissions I
- have just made on the need for counselling, it may be that your Honour could suspend the term of imprisonment contingent upon a program, impose a conditional suspended imprisonment order that forces the offender to seek the root of his problem, otherwise, your Honour, it is unlikely that a suspended term of imprisonment will address either personal deterrence or general deterrence.
53 Counsel for the appellant had submitted to the learned sentencing judge that if a sentence of imprisonment was considered to be warranted, then it should be suspended. However, a lesser penalty ('perhaps a fine') was submitted to be appropriate and a submission was made that a spent conviction order should be made.
54 The email correspondence between the appellant's trial counsel and Ms Clare reveals that counsel was concerned that Ms Clare had failed to honour an agreement whereby the Office of the Director of Public Prosecutions had undertaken to support a suspended term of imprisonment.
55 In the emails, Ms Clare expresses concern that, given the negotiations that had occurred between counsel for the appellant and the Office of the Director of Public Prosecutions, a submission had been made that a fine might be appropriate and a spent conviction order was sought. Ms Clare contended that she had not said anything that was a breach of the agreement and that she was not seeking an immediate term of imprisonment as the only option available.
56 It should be noted that on the second appearance before the learned sentencing judge, Ms Clare reiterated her position in the following terms:
The state's submission remains that a term of imprisonment is appropriate in this case but given other factors that are before your Honour, it may be that a conditional suspended imprisonment can be imposed in this case, your Honour.
57 It seems to me that this was a concession that a sentence of conditional suspended imprisonment was open. It was not urged, but it was conceded to be a disposition which was available.
58 The appellant's counsel contends before this court that agreement had been reached between the appellant's trial counsel and the Office of the Director of Public Prosecutions that the prosecution would actively support a particular course with respect to sentencing. It is said that the agreed position was to the effect that the State would indicate to the
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- sentencing judge that it was seeking nothing more severe than a conditional suspended sentence.
59 Counsel for the appellant sought, at the hearing of this appeal, to contend that the appellant had pleaded guilty on an understanding that there was a 'plea bargain' and because the bargain was not adhered to, he was sentenced on an 'inherently unfair and unlawful' basis. It is said that the sentence was obtained 'on a false premise and the appellant's plea was not, in these circumstances, freely given'.
60 The submissions made by the appellant's counsel seem to me to overlook the fact that the appellant entered unequivocal pleas of guilty to each of the counts on the indictment. In view of his admissions on the video record of interview, the pleas were almost inevitable. In any event, it is not open to this court to go behind the pleas to seek to ascertain why they were entered.
61 At the two sentencing hearings, it was open to the appellant's trial counsel to call for an adjournment and seek to resolve what he considered to be differences between himself and the prosecutor as to the agreement which had been reached between them. It was open to the appellant's trial counsel to raise the matter with the learned sentencing judge if he wished. If he contended that there had been an agreement which was being breached by the prosecutor, the course open to him was to bring the matter to the attention of the court and to seek to have the matter resolved at that level. This was not done.
62 In my opinion, the submission of the appellant's counsel on the hearing of the appeal fails to take account of the decision of Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ in GAS v The Queen [2004] HCA 22; (2004) 217 CLR 198. There, two accused persons had pleaded guilty to manslaughter and had been sentenced on the basis that each was an aider and abettor rather than a principal. The Director of Public Prosecutions appealed against the sentences on the ground that they were manifestly inadequate. The appeals were allowed. The offenders appealed to the High Court, contending that the Director's conduct of the appeal and the resultant increase in the sentences had broken a 'plea agreement' that each would receive a sentence less than a principal would have received.
63 The court said:
[I]t is the accused person, alone, who must decide whether to plead guilty to the charge preferred. That decision must be made freely and, in this
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- case, it was made with the benefit of legal advice. Once again, the judge is not, and in this case was not, involved in the decision. Such a decision is not made with any foreknowledge of the sentence that will be imposed. No doubt it will often be made in the light of professional advice as to what might reasonably be expected to happen, but that advice is the responsibility of the accused's legal representatives.
... it is for the sentencing judge, alone, to decide the sentence to be imposed [R v Olbrich (1999) 199 CLR 270]. For that purpose, the judge must find the relevant facts [Cheung v The Queen (2001) 209 CLR 1 at 9 - 11 [4] - [10]].
... there may be an understanding, between the prosecution and the defence, as to evidence that will be led, or admissions that will be made, but that does not bind the judge, except in the practical sense that the judge's capacity to find facts will be affected by the evidence and the admissions. In deciding the sentence, the judge must apply the facts as found the relevant law and sentencing principles. It is for the judge, assisted by the submissions of counsel, to decide and apply the law. There may be an understanding between counsel as to the submissions of law that they will make, but that does not bind the judge in any sense. The judge's responsibility to find and apply the law is not circumscribed by the conduct of counsel. [29] - [31]
64 In GAS, it was made clear, at [40], that if the appellants had any legitimate complaint about what had occurred (in relation to any alleged breach of a 'plea bargain'), the appropriate way to ventilate that complaint was to submit to the Court of Appeal that the sentencing judge had been led into a material and decisive error. By analogy, if the appellant here had any legitimate ground of complaint, it was for his trial counsel to raise the matter with the learned sentencing judge. That was not done and the matter proceeded to sentencing on the basis that I have outlined.
65 In these circumstances, I do not consider that the appellant can complain in this court that there has been a breach of a 'plea bargain' which led to any injustice to the appellant by inducing him to plead guilty in circumstances where he expected that the prosecutor would seek a particular sentence. It was at all times for the learned sentencing judge to determine what the sentence should be. He could not be influenced by any agreement reached between the prosecutor and the defence counsel. It is a fundamental principle of the criminal law that it is for the sentencing judge, alone, to decide the sentence to be imposed and under no circumstances can any understanding between the prosecution and the defence bind the sentencing judge (GAS at [31]). Further, once an offender has pleaded guilty, it is not incumbent upon the sentencing judge to inquire about the course of events that occurred prior to the plea: R v
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- Olbrich [1999] HCA 54; (1999) 199 CLR 270, [16] - [17] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).
66 In the present case, the appellant pleaded guilty to both counts on the indictment. Submissions were made by his counsel about the appropriate disposition of the matters. These submissions included the proposition that a fine might be an appropriate way to deal with the offences and even that the convictions should be the subject of spent conviction orders. The prosecutor submitted that a sentence of imprisonment was the only disposition open in relation to each of the counts, but conceded before the learned sentencing judge that there might be factors which would justify a sentence of conditional suspended imprisonment.
67 Whatever agreement may have been reached between the appellant's trial counsel and the prosecutor had no bearing on the exercise of discretion which was called for on the part of the learned sentencing judge. Aided by such submissions as he had received, the learned sentencing judge decided that a sentence of imprisonment to be served immediately was the only disposition open. This was a matter which was solely his province.
68 I can see no basis upon which the appellant can succeed on ground 1A of the grounds of appeal. I would refuse leave to appeal on that ground. To the extent that the appellant sought an order that the affidavit of Nadia Danielle Pantano annexing correspondence between trial counsel and the prosecutor should be received in evidence, I am prepared to admit that affidavit under s 40(1)(e) the Criminal Appeals Act 2004 for the purpose of understanding the basis upon which ground 1A of the grounds of appeal was argued.
Ground 1
69 This ground contends that the sentence of 16 months' imprisonment imposed with respect to count 2 was manifestly excessive. A number of particulars are given. They relate to the appellant's antecedents, the criminality involved in the offence, the plea of guilty and co-operation, the voluntary counselling undertaken by the appellant and a contention (the subject of a further amendment at the hearing) that the learned sentencing judge misunderstood the issue of the encrypting of the photographs which the appellant had taken of his wife. This latter amendment was submitted to the court after the hearing and is in a somewhat different form from that proposed by counsel at the hearing of the appeal. In essence, it complains that the learned sentencing judge was
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- wrong to conclude that whether the photographs taken by the appellant were encrypted or not made little difference.
70 The learned sentencing judge understood that the appellant had 'no relevant criminal antecedents' and was to be treated as a first offender. He considered the appellant's personal circumstances in detail and found that they constituted a mitigating circumstance. The learned sentencing judge also considered the plea of guilty. He found it to have been a late plea, but accepted that an earlier plea of guilty was delayed because the prosecution had originally indicted the appellant on a more serious version of count 1. The learned sentencing judge also accepted that the appellant had attended counselling after separation from the complainant in 2002 and had complied with all matrimonial obligations, including financial obligations, since the separation.
71 The appellant appears to have undergone counselling primarily in relation to his matrimonial relationship. It is not clear that the counselling related solely to the question of the appellant's criminal conduct. There is, however, evidence in the video record of interview that the appellant had discussed with counsellors and psychologists the circumstances of his photographing the complainant.
72 At the sentencing hearing, counsel for the appellant referred to the appellant having attended counselling through a domestic violence counselling service and through a private psychologist. No reports appear to have been tendered to the learned sentencing judge to elaborate upon exactly what the counselling was for.
73 The question of the encrypting of the photographs of the complainant was the subject of submissions before the learned sentencing judge. Counsel for the appellant put it this way:
[The appellant] says his wife was passed out drunk, he took the photographs of her in that condition and used those to gain entry to these Internet sites.
He did so however in a way such that the photographs were encrypted so they couldn't be opened by the recipient or at least that was his intention. The state says that that can't be proved otherwise and certainly [the appellant] maintained that on the police video and maintains that now, that he encrypted them so they couldn't be opened. He did that because his intention was never to disseminate photographs of his wife in that sort of condition. His intention was never to humiliate her. His intention was to gain entry to the sites and he sought to do so I suppose in the - in a way that didn't involve disseminating the photographs.
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- What would happen is effectively that the sites would receive a file purportedly containing photographs and some of them would admit him entry without checking whether they could be opened. Others, checked immediately and refused entry. Some of then [sic] allowed an entry for a short time before realising they couldn't open the photographs and then cancelled his membership.
74 The learned sentencing judge said that the fact that the photographs were encrypted made little difference to the sentencing exercise. This was because there was always the possibility that somebody could decrypt the photographs. His Honour stressed that the point was that the photographs were left in a readable format on the family computer where anybody could find them. This, in my view, was an appropriate finding.
75 The degradation and humiliation alleged in the circumstance of aggravation in count 2 was that the act of photographing the complainant was 'likely seriously and substantially to degrade or humiliate [her]'. The circumstance of aggravation was not alleged to have been that the appellant put the photographs on websites. As a fact, he made known to certain websites that he had photographs of his wife in an unconscious state. It did not matter that the photographs were encrypted and could not be seen by others. The fact was that the complainant herself saw the photographs and anybody else who had access to the family computer could see them. It may have made things worse if the photographs had been disseminated across various websites on the Internet, but the learned sentencing judge did not proceed to sentence on that basis. His Honour took the view that it did not matter whether the photographs were encrypted or not, because the real harm was in leaving them in readable form on the family computer. In my opinion, this was a finding which was clearly open.
76 The offence of aggravated indecent assault (Criminal Code s 324) is punishable where there are circumstances of aggravation by imprisonment for 7 years. The circumstances of aggravation in the present case are those contained in s 319(1)(a)(iv) of the Criminal Code, namely, that 'the offender does an act which is likely seriously and substantially to degrade or humiliate the victim'. The provision dealing with circumstances of aggravation was inserted into the Criminal Code by Act number 14 of 1992. The section was part of a package which was directed at extending the laws to punish child sexual assault (see Western Australia, Second Reading Speech on Acts Amendment (Sexual Offences) Bill 1991, Legislative Assembly, 27 May 1992, 2764 (Mr Pearce)).
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77 However, ch XXXI of the Criminal Code deals with sexual offences generally and it is within this context that the offence of aggravated indecent assault constituted by s 324 is to be considered. The section applies equally to the degradation and humiliation of adults as it does to children. In the present case, there was no doubt that the degradation and humiliation suffered by the complainant in finding the photographs of herself on the family computer was such as to make the offence a bad case of its type.
78 The victim impact statement of the complainant reveals that she was 'horrified and stunned' when she found the photographs of herself on the family computer, not because she thought they had been disseminated to others, but because she could not believe that her husband would have done such a thing to her. It is true that she later tried to track down where the appellant had sent the photographs and what the sites were about that he visited, but her primary concern was the fact that she had been photographed in the way in which the appellant had photographed her.
79 In my view, the offence constituted by count 2 called for a substantial sentence of imprisonment. A sentence of 16 months' imprisonment was well within the range of sentences that could have been imposed. In those circumstances, I would dismiss ground 1 of the grounds of appeal.
Ground 2
80 This ground contends that the learned sentencing judge erred in accumulating the sentences, having regard to a proper application of the totality principle. It is complained that the combined effect of the sentences was excessive.
81 The learned sentencing judge dealt with the question of accumulation in the following way:
This brings me to the issue of cumulation and concurrency. This is not a matter which attracts the operation of the so-called one transaction principle as the two offences are separated in time. Although having said that, it must be taken into account that in a sense they involved a similar form of offending behaviour, namely abuse of the complainant. However, I'm also required to take into account the overall criminality involved in the offences and also have what's called a last look to make sure that the overall disposition is not overly harsh or punitive.
In this case it seems to me that both of these sentences should be cumulative, having regard to the fact that they were separated in time and operated in quite different ways on the victim.
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82 The question is whether the aggregate sentence imposed upon the appellant fairly and justly reflects the total criminality of the appellant's conduct: Jarvis v The Queen (1998) 20 WAR 201, 207 (Ipp J). See also Postiglione v The Queen [1997] HCA 26; (1996) 189 CLR 295, 307 - 308 (McHugh J).
83 The learned sentencing judge was correct to conclude that the two offences were entirely separated in time. It was also a correct conclusion that they involved a similar form of offending behaviour; namely, abuse of the complainant. However, I consider that, in all the circumstances, accumulation of the sentences was inevitable.
84 In my view, an effective sentence of 2 years' imprisonment reflected the total criminality of the appellant's conduct and I can see no substance in ground 2 of the grounds of appeal.
Ground 3
85 This ground contends that the learned sentencing judge erred in declining to order that the sentences of imprisonment be suspended. A number of particulars are given. They include the appellant's employment and support of his family; the length of time that had elapsed since the commission of the offences; his remorse and his counselling.
86 The learned sentencing judge took the view that the offences were too serious to merit suspension. His Honour gave consideration to various factors that may have merited suspension of the sentence, pointing out that authority bound him to take into account all matters relevant to the sentencing exercise when considering the question whether to suspend the term of imprisonment. His Honour specifically took into account the fact that immediate imprisonment was a sentence of last resort and listed the factors for and against suspension. They were put in the following way:
Factors which favour suspension in this case are as follows: that you are financially supporting members of your family; that you will lose your job and career as a result of this conviction and you will almost certainly will - sorry, will certainly lose your job and career if you are imprisoned immediately and will probably lose it in any event.
The shame and humiliation to yourself is a form of punishment. I take into account that you are willing to undergo counselling and I have taken into account the state has countenanced the possibility of a suspended term of imprisonment in this case. I should stress, however, that nothing the state says is binding on me in any way. Factors which tend against suspension are the various aggravating factors that I have mentioned. I need to take into account the overall criminality involved in these offences.
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87 The conclusion was stated in the following terms:
It's clear that you abused your wife on more than one occasion over a period of time for your own personal purposes and gratification. It's important that spouses be protected from intramatrimonial abuse. I have considered this matter very carefully and form the view that these offences are too serious to merit suspension and that immediate imprisonment is the only disposition which is appropriate.
88 For ground 3 to succeed, it need only be shown that a suspended sentence of imprisonment was an open disposition in relation to each of the two counts on the indictment. A suspended sentence of imprisonment could be either suspended imprisonment within the meaning of pt 11 of the Sentencing Act1995 (WA) or conditional suspended imprisonment within the meaning of pt 12 of the Sentencing Act1995.
89 The fact that the prosecution stated that a sentence of conditional suspended imprisonment might be open did not in any way bind the learned sentencing judge: GAS at [31]. In some cases, the fact that the prosecutor urges a sentence of suspended imprisonment may be a factor that the sentencing judge might take into account. In Faure v The State of Western Australia [2004] WASCA 315, Templeman J (Murray and McLure JJ concurring) noted (at [11]) that the prosecutor had stated that the prosecution took the unusual step of submitting that a lengthy term of an intensive supervision order might be the most appropriate disposition of the matter. His Honour then said:
That, of course, was not in any way binding on the learned sentencing Judge but it does give a clear indication of the level of criminality with which the State regarded the applicant, at that stage at least. [12]
90 The present case is not one in which the prosecutor urged the learned sentencing judge to impose a sentence of suspended imprisonment. Even if the prosecutor had urged his Honour to do so, it still remained for the learned sentencing judge, and for him, alone, to decide the sentence to be imposed: GAS at [30].
91 I am of the opinion that the learned sentencing judge was correct to conclude that the offences were too serious to justify suspension. The first count on the indictment was punishable by imprisonment for 5 years and the second count by imprisonment for 7 years. They were serious offences and the appellant's criminality was substantial in relation to each count. The administration of a sedative to the complainant was a potentially dangerous thing to do and it was a substantial interference with her wellbeing. The photographing of the complainant after positioning
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- her to expose her vagina was an extremely degrading and humiliating thing for the appellant to have done. Each offence was so serious as to justify a finite sentence of imprisonment to be served immediately. None of the factors referred to in the particulars annexed to ground 3 of the grounds of appeal were, in my view, sufficient to justify suspension.
Ground 4
92 Ground 4 contends that the learned sentencing judge erred in failing to have regard to the significant delay between the occurrence of the offences and the ultimate sentencing of the appellant.
93 It was the case that the appellant was not charged with the offences until some two years after the offences came to light. This was three years after their commission. By the time he was sentenced, over five years had elapsed. It is contended that he had conducted himself in an exemplary manner during that period. The general complaint is that issues of deterrence should have been given less weight in consequence of this fact.
94 The learned sentencing judge was aware that the appellant had enjoyed a successful career as an auctioneer and real estate agent and had complied with his matrimonial obligations following the separation. It is true that his Honour made no specific reference to the expiration of approximately five years from the time of commission of the offences to sentencing. However, counsel for the appellant adverted to the issue, pointing out to the learned sentencing judge that it had taken five years before the appellant came to be sentenced. He said:
YOUNG, MR: Yes. It's also the case that they're now somewhat stale. We're talking about things that have occurred over five years ago. It's not one of those cases where one can say that during the time that it has taken the matter to come to court, [the appellant] has enjoyed an unjustified reputation in the community because the offences were known and the complainant chose, for reason of her own, not to go to the police for quite some time thereafter. So he has had the matter, in one way or another, hanging over his head for a lengthy period of time. That has caused him a great deal of stress as one could imagine but as I say, he has got on with his life; he has kept working; he has kept supporting his family as best he can during that time. Of course, he has cooperated fully with the police and entered what I submit should be regarded as an early plea.
95 The facts revealed that the offences occurred between 1 August and 4 November 2001. The offence constituted by count 2 was not discovered until 6 October 2002 and the complainant went to the police in 2004. This was more than a year after she had discovered the photographs on the
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- computer. The matter the subject of count 1 was revealed during the appellant's video record of interview on 3 November 2004.
96 I accept the submission of the respondent that, as a general rule, delay in apprehension is not a mitigating factor when the offence is one of a serious nature. In Bell v The Queen [2001] WASCA 40, the Court of Criminal Appeal was concerned with the question whether there should be a reduction of sentence because the offences in question had been committed 26 or 27 years earlier. They were sexual offences. The applicant had been convicted of five counts of unlawful and indecent dealing with his 7-year-old son in 1973 and 1974. It was submitted on behalf of the applicant that, as he had no other convictions and because the offences were so old, an aggregate sentence of 5 years' imprisonment imposed upon him was manifestly excessive. The relevant principles were expressed by Anderson J:
Generally speaking, an important objective in custodial sentences is personal deterrence and rehabilitation. Where many years have elapsed since the last offence, there is obviously no need to emphasise in the sentence the element of personal deterrence and, as well, the Court may be able to conclude that rehabilitation has already taken place. This may justify a lesser sentence than would otherwise be appropriate: Duncan v The Queen (1983) 47 ALR 746 at 749; Bell v The Queen (1981) 5 A Crim R 347; R v Law (1995) 84 A Crim R 142; R v Werner, unreported; CCA SCt of Qld; 9 October 1998; Wagenaar v The Queen [2000] WASCA 325 at [64] to [72]. [5]
- Anderson J added:
... I think it reasonably clearly appears from the authorities referred to that in the general run of cases, delay will attract a significant discount only where the sentencing court concludes that there has been real progress towards rehabilitation as such or where other favourable factors have positively emerged in the time between the offences and the passing of sentence. [8]
See also Stein AJ at [39] - [50].
97 Delay between police interviews and charge is also relevant. The question of rehabilitation is again brought into issue.
98 In the present case, the learned sentencing judge noted during the course of his sentencing remarks that the appellant had undergone counselling of some form and his Honour noted that the ultimate pleas of guilty were in consequence of a more serious charge having first been incorporated in the indictment. I have already pointed out that his Honour noted the appellant's successful career as an auctioneer and real estate
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- agent. Likewise, note was taken of excellent references tendered on his behalf and the fact that there was no prior criminal history.
99 The appellant downplayed the photographing of the complainant, suggesting that he had merely used the photographs for the purpose of accessing websites for his own gratification. He did say, in the course of his video record of interview that his behaviour was out of character and that he was 'deranged' at the time of commission of the offences, but blamed much of what had occurred on what he described as a 'very aggressive relationship'. In short, it was not a case in which the appellant conceded that he had committed offences for which he required rehabilitation and that he had taken steps to rehabilitate himself. He had undergone counselling, but it seems to have been related to the breakdown of the relationship with the complainant and its consequences.
100 In my opinion, the learned sentencing judge took sufficient account of the delay involved in the matter and the consequences to the appellant occasioned by the delay. I would dismiss ground 4.
Ground 5
101 Ground 5 contends that the learned sentencing judge erred in concluding that the appellant's remorse was diluted in nature.
102 The ground of appeal contends that the appellant's overall demeanour should have been assessed in the light of the fact that the interview occurred two years after discovery of the offences and that the learned sentencing judge erred in law and in fact in stating that admissions lose much of their mitigatory force when the State's case is strong.
103 The learned sentencing judge had the opportunity of watching the video record of interview. He concluded that the appellant was 'somewhat businesslike and perfunctory'.
104 I have taken the opportunity to look at the video record of interview conducted by investigating police with the appellant. It can fairly be said that the appellant did adopt a 'businesslike' demeanour. In many instances, he avoided the questions of the investigating officers. He gave an appearance of sometimes seeking to justify what he had done. He did not demonstrate deep remorse or shame for his actions.
105 I consider that the learned sentencing judge's finding that the appellant was businesslike and perfunctory was one which was open to him. Further, I consider that the learned sentencing judge was entitled to
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- conclude that although there was some remorse, it was diluted in nature. This was so, even allowing for the fact that two years had elapsed between discovery of the offences and the interview. The appellant, in his interview, did not express unequivocal remorse for having photographed the complainant. Nor did he express great remorse for having administered sedatives to her. He did say that it was out of character and that he must have been deranged at the time, but the extent to which he revealed sincere remorse was entirely a matter for the learned sentencing judge. In my view, the learned sentencing judge sufficiently took into account the issue of remorse and I do not consider there is any substance in ground 5.
106 The learned sentencing judge was referring only to count 2 when he made reference to admissions losing much of their mitigatory force. His Honour said:
You also made admissions in relation to count 2, although they lose much of their mitigatory force because of the strength of the state case in that regard.
- I can see no error in relation to this observation. The prosecution case was strong. The photographs which the appellant took of the complainant were found by the complainant on the home computer. It was clear that the appellant had taken the photographs. The offence against s 324 of the Criminal Code was easily established.
107 The learned sentencing judge made comparison between count 1 where the admissions were considered to be a significant mitigatory factor and count 2 where the admissions lost mitigatory force because the case against the appellant was a strong one. I agree with that observation and I can see no basis for complaint about it.
Conclusion
108 In my opinion, there is no substance in any of the grounds of appeal. I would refuse leave to appeal in relation to grounds 1A, 1, 2, 3 and 5 and dismiss ground 4.
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