Naysmith v The Queen - [2013] WASCA 32

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: NAYSMITH -v- THE QUEEN [2013] WASCA 32

CORAM: MARTIN CJ
McLURE P
MAZZA JA

HEARD: 13 NOVEMBER 2012

DELIVERED : 8 FEBRUARY 2013

FILE NO/S: CACR 180 of 2012

BETWEEN: CHRISTOPHER BARRY NAYSMITH
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :BIRMINGHAM DCJ
File No  :IND BUN 20 of 2012

Catchwords:

Criminal law - Appeal against sentence - Possession of child pornography - Offender sentenced to 12 months' imprisonment - Intellectual disability and social disadvantage - Role of general deterrence - Turns on own facts

Legislation:

Crimes Act 1914 (Cth), s 20AB(1)
Crimes Regulations 1990 (Cth), reg 6
Criminal Code (Cth), s 474.19(1)
Criminal Code (WA), s 220

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant: Mr D Hunter
Respondent: Ms R V C Fogliani

Solicitors:

Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (Cth)

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

Collins v The State of Western Australia [2007] WASCA 108
Hill v The State of Western Australia [2009] WASCA 4
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
R v Oliver [2003] 2 Cr App R (S) 15
Smit v The State of Western Australia [2011] WASCA 124

JUDGMENT OF THE COURT: This appeal against sentence was heard by the court on 13 November 2012. At the conclusion of the hearing the court ordered that the appeal be allowed, the sentence imposed on the appellant be set aside and in lieu thereof sentenced the appellant to an intensive supervision order, with program and supervision requirements, for a period of 9 months to commence from the date of the order. These are the reasons of the court.
On 23 July 2012 the appellant was convicted on his fast‑track pleas of guilty of one count of having in his possession child exploitation material contrary to s 220 of the Criminal Code (WA) (the Code) and one count of using a carriage service to access child pornography material contrary to s 474.19(1) of the Criminal Code (Cth) (the Commonwealth Code).
On 2 August 2012, the appellant was sentenced by Birmingham DCJ to 12 months' imprisonment for each offence. The appellant was made eligible for parole on the State offence and was ordered to be released after service of 6 months of the sentence for the Commonwealth offence upon entering into a recognisance of $5,000 to be of good behaviour for a term of 6 months. The sentencing judge ordered that the sentences be served concurrently.
The gravamen of the single ground of appeal was that, having regard to the appellant's intellectual disability and other disadvantages, the sentencing judge gave too much weight to general deterrence.
The facts of the Commonwealth offence are that on 19 March 2010 the appellant accessed on the internet 33 images classified as child pornography material under the Commonwealth Code.
The facts of the State offence are that on 6 September 2011 the appellant had in his possession child exploitation material on external hard drives, a laptop computer and 26 optical disks (that is, DVDs and CDs). The material the subject of the State offence was classified by the respondent into five categories, using the typology developed in the United Kingdom and used in the guideline judgment in R v Oliver [2003] 2 Cr App R (S) 15. As to its use in this jurisdiction, see Smit v The State of Western Australia [2011] WASCA 124 [14] ‑ [17].
The child exploitation material depicted children ranging from 12 months to 16 years. The appellant possessed some 5,832 images and video files, the vast majority of which were in the lowest category of seriousness, depicting erotic posing with no sexual activity. There were 64 images depicting sexual activity between children or solo masturbation; 93 images depicting non‑penetrative sexual activity between adults and children; 368 images depicting penetrative sexual activity between children and adults; and three images depicting sadism or bestiality.
The appellant was aged 28 at the time of sentencing. He had one prior conviction which was for intentionally exposing a person under the age of 16 to indecent material for which he was placed on a 12‑month intensive supervision order. The appellant has an intellectual disability. He had been registered with the Disability Services Commission since he was aged 7 and on a disability support pension from the age of 16. The psychological report before the sentencing judge summarised the appellant's disability as follows:
[The appellant] would not be functioning within what is considered to be the 'Average' range of intelligence commencing at an IQ of 80 (Low Average). The maximum IQ level for registration with the Disability Services Commission is 70 and given that he is a client of this organisation, it is accepted that [the appellant] falls within this limit. It is suggested however, that much of his functional and cognitive limitation is likely to be a consequence of his childhood social and general environmental deprivation …
Nonetheless however, and regardless of the origin, it is clear that [the appellant] does have considerable limitations when compared to the average person. Caution for those working with him in a professional capacity is suggested, concerning the degree of his comprehension, with him likely to give the impression that he has a greater level of understanding than a closer examination might reveal.
Reference to the appellant's deprived childhood requires elaboration. He was placed in government care when he was under 2 years old and spent the next four years in foster homes before returning to live with his mother who in the meantime had separated from his father. The appellant attended a large number of schools due to the itinerant behaviour of his mother and stepfather. He was placed in special education classes throughout his schooling and was diagnosed with ADHD for which he was medicated until his late teenage years. He led a relatively solitary, lonely existence.
At the time of the offending, the appellant was living with his mother and stepfather. The appellant's general living conditions during this period are described as squalid, with him receiving minimal support or guidance concerning personal hygiene and the development of social and general daily living skills. For example, the house in which he lived contained animal urine and faeces. Cigarette butts near his computer had been there for years.
Some time after police had attended at his home in connection with the State offence, the appellant was relocated to a rental property in Collie where he was living independently with the support of Anglicare, funding for which was provided by the Disability Services Commission. He also sought and received personal counselling.
The psychological report notes:
Referral documentation and [the appellant's] comments reveal that he has been raised in an environment of significant emotional and social deprivation. It is suggested that the combination of [the appellant's] lowered level of intellect and the dearth of appropriate guidance, love and affection throughout his life has resulted in the minimal development of appropriate life skills including those related to his personal hygiene, social interaction, problem‑solving, consequential thinking and the development of various erroneous or distorted belief systems …
It is apparent that [the appellant] has developed a highly isolated or perhaps socially detached lifestyle in which he has utilised his computer for access to others. It is further suggested that his inappropriate behaviour constituting the offences, was probably an extension of this 'lifestyle' and a direct reflection of his emotional immaturity and the aforementioned cognitive distortions.
The psychologist suggested that, given the appellant's level of intellectual functioning and emotional immaturity, he would be particularly vulnerable to the influence of more antisocial individuals should he receive a custodial sentence and would be better supported if placed on a community based order.
Reports from Anglicare were before the sentencing judge. In a letter dated 22 February 2012 the coordinator of the Anglicare support programme (Bridges) said:
[W]e believe [the appellant] has the capacity to live independently with visiting supports to act as mentors and to assist him with daily living skills including budgeting, cleaning, cooking, shopping etc.
In a letter dated 19 July 2012 Anglicare advised the court that the appellant was still receiving ongoing support to assist him with daily living skills.
The sentencing judge also had before him a letter from a representative of Advocacy South West Inc who, on a referral from the Disability Services Commission, had been working with the appellant since December 2011. He advised that in addition to the Anglicare support programme and regular ongoing counselling, the appellant had been referred to a number of other programs including the 'People 1st Program' which supports people with an intellectual disability in human relationships, protective education and sexuality. The author explained:
This is done on a one‑to‑one basis with an educational counselor who will work with [the appellant] on such things as self‑esteem, decision‑making and likely consequences, levels of responsibility, friendship and relationship development, and developing skills and learning 'what is acceptable' or not.
The claim put on behalf of the respondent in the appeal was that the evidence was not capable of supporting a finding (on the balance of probabilities) that the appellant had an intellectual disability at the time of the offending or, alternatively, on the extent of his intellectual disability at that time. That submission is without merit. All the sentencing material from those having contact with, or providing support to, the appellant after the date of the State offence is only consistent with him continuing to have an intellectual disability. Indeed, the evidence as a whole compelled a finding that the appellant had an intellectual disability (an IQ in the region of approximately 70) at the time of the offences. That finding is not contradicted by the appellant's capacity to learn and acquire skills.

The trial judge's reasons

The sentencing judge appeared to be somewhat sceptical of the assessment that the appellant suffered from an intellectual disability. He said:
It was said that this [assessment] was done at a young age, and there is no evidence that you have been reassessed since, but it is obvious that you do have the capacity to operate the internet and internet facilities, and to access these sites, by the very fact of these convictions …
It is noted however, that even though you appear to have a lowered level of intellect, you appeared to have little difficulty understanding the questions asked of you by the psychologist, when assessing you for the purpose of his report, and also understood the questions asked of you (ts 37).
On the subject of insight, the sentencing judge said:
You have … committed what is a very, very serious offence, against a background where you have seemingly a reduced intellectual capacity, that might impact upon your ability to have a proper insight into the seriousness of your offending (ts 38).
Notwithstanding these observations, the sentencing judge gave significant weight to the need for general deterrence. He said:
These offences result in significant weight being given to general deterrence, and accordingly, less weight to personal factors such as yours. I am not satisfied that your rehabilitation would be so significantly affected by serving a term of imprisonment as to outweigh the need to impose a sentence that records the appropriate level of punishment and satisfies the need of deterrence.
The benefit to the community from the rehabilitation of an offender cannot be ignored. However, in my opinion, the community interest in that regard, and in respect of the individual, must give way to the very significant weight to be given to general deterrence, and reflect that in a sentence of immediate imprisonment (ts 41 ‑ 42).

The sentencing of offenders with an intellectual disability

This subject was considered by the High Court in Muldrock v The Queen (2011) 244 CLR 120. In that case the appellant, an adult male, had pleaded guilty to a sexual offence (fellatio) involving a 9‑year‑old boy. The sentencing judge sentenced him to 9 years' imprisonment with a non‑parole period of 96 days which expired on the date of sentencing and directed as a condition of parole that the offender be admitted for treatment to a specialist community facility until discharged by the parole authority. The New South Wales Court of Criminal Appeal allowed an appeal from that sentence and imposed a non‑parole period of 6 years and 8 months. An appeal from that decision was upheld by the High Court. On the subject of sentencing offenders with an intellectual disability the High Court said:
The assessment that the appellant suffers from a "mild intellectual disability" should not obscure the fact that he is mentally retarded. The condition of mental retardation is classified according to its severity as mild, moderate, severe or profound. Mental retardation is defined by reference to both significantly subaverage general intellectual functioning and significant limitations in adaptive functioning. "Significantly subaverage intellectual functioning" is defined as an intelligence quotient … of about 70 or below. The position is well explained in a discussion paper published by the New South Wales Law Reform Commission:
'A person's intellectual disability can be classified as 'mild', 'moderate', 'severe' or 'profound', based upon certain IQ … ranges. A further category, 'borderline', is also used to indicate people just above the mild range in terms of intellectual functioning … The majority of people with an intellectual disability have a 'mild' level of intellectual disability and 'can learn skills of reading, writing, numeracy, and daily living sufficient to enable them to live independently in the community.' These classifications have limited utility and can sometimes be misleading. For example, such terms may suggest to criminal justice personnel, who do not have a full understanding of the disability involved, that a 'mild' intellectual disability is inconsequential' [50].
On the subject of general deterrence, the High Court said:
One purpose of sentencing is to deter others who might be minded to offend as the offender has done. Young CJ, in a passage that has been frequently cited, said this:
"General deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others."
In the same case, Lush J explained the reason for the principle in this way:
"[The] significance [of general deterrence] in a particular case will, however, at least usually be related to the kindred concept of retribution or punishment in which is involved an element of instinctive appreciation of the appropriateness of the sentence to the case. A sentence imposed with deterrence in view will not be acceptable if its retributive effect on the offender is felt to be inappropriate to his situation and to the needs of the community."
The principle is well recognised. It applies in sentencing offenders suffering from mental illness, and those with an intellectual handicap. A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence [53] ‑ [54].

The appeal

This court can only intervene in the exercise of the sentencing discretion if the sentencing judge has made an express or implied material error of law or fact. A claim of manifest excess relies on the implication of error from the sentencing outcome. This case is unusual in that the weighting error was apparent from the express terms of the sentencing judge's reasons.
In Hill v The State of Western Australia [2009] WASCA 4, the general principles relevant to determining the appropriate sentencing option and how they are applied to the offence of possession of child pornography are set out:
The recent cases reveal that ordinarily a sentence of immediate imprisonment will be imposed for possession of child pornography … As previously noted, the offence of possessing child pornography is not a victimless crime. The generation and existence of demand for possession of child pornography stimulates the supply side to the incalculable harm to the children involved. The creation and satisfaction of demand for child pornography is exponentially facilitated by the internet and there are significant difficulties in detecting the offences. These factors result in significant weight being given to general deterrence and correspondingly less weight being given to matters personal to the offender. Indeed, positive personal antecedents and a reduced or absent need for personal deterrence are relatively commonplace amongst offenders in possession of child pornography [28].
That is a statement of the general principles that guide the exercise of the sentencing discretion. However, even if it be the case that ordinarily or generally a term of immediate imprisonment is the appropriate penalty for an offence, the sentencing judge is not relieved of his or her obligation to assess whether, having regard to all relevant sentencing factors in the case under consideration, it is appropriate to impose a lesser sentence. The question for the sentencing judge is whether, having regard to all relevant sentencing factors, the case does not require the imposition of the generally appropriate type of sentence for the offence: Collins v The State of Western Australia [2007] WASCA 108 [21].
The appellant's intellectual disability is such as to require that little weight be given to general deterrence, particularly as his disability was accompanied by significant social and environmental deprivation. Against that background, it was also significant that at the time of sentencing the appellant was receiving, and would continue to receive, a high level of external support. The unusual circumstances of this case bring the appellant within the exceptional category in which a term of imprisonment was not an appropriate sentencing option.
This court had the necessary material to re‑sentence the appellant, who had served approximately 3 1/2 months in custody. A State court may impose an intensive supervision order in respect of a federal offender if it is a case in which such a sentence would be available under State law: Crimes Act 1914 (Cth), s 20AB(1); Crimes Regulations 1990 (Cth), reg 6; and: item 6 on the table contained therein. In all of the circumstances, a 9‑month intensive supervision order with program and supervision requirements was the appropriate sentencing option.