Newton v The State of Western Australia
[2023] WASCA 7
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: NEWTON -v- THE STATE OF WESTERN AUSTRALIA [2023] WASCA 7
CORAM: QUINLAN CJ
BEECH JA
HALL JA
HEARD: 7 DECEMBER 2022
DELIVERED : 17 JANUARY 2023
FILE NO: CACR 3 of 2022
BETWEEN: ADAM DOUGLAS NEWTON
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STEWART DCJ
File Number : IND 82 of 2021
Catchwords:
Criminal law – Sentencing – Sexual penetration of a child under 13 years of age – Indecent dealing with a child under the age of 13 years – Indecently recording a child under the age of 13 years – Possession of child exploitation material – Failing to obey a data access order – Total effective sentence of 12 years 6 months imprisonment – Whether sentence infringed first limb of totality principle
Legislation:
Criminal Code (WA), s 220, s 320(2), s 320(4), s 320(6)
Criminal Investigation Act 2004 (WA), s 61(2)
Result:
Leave to appeal granted
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | S A Auburn |
| Respondent | : | L M Fox SC |
Solicitors:
| Appellant | : | Sharon Auburn Lawyers |
| Respondent | : | Director of Public Prosecutions (WA) |
Cases referred to in decision:
AIM v The State of Western Australia [2014] WASCA 155
ARK v The State of Western Australia [2014] WASCA 45
CAND v The State of Western Australia [2018] WASCA 101
Chadburne v The State of Western Australia [2017] WASCA 216
CJF v The State of Western Australia [2012] WASCA 69
ERA v The State of Western Australia [2013] WASCA 163
EXF v The State of Western Australia [2015] WASCA 118
GHK v The State of Western Australia [2014] WASCA 19
GMS v The State of Western Australia [2009] WASCA 107
JJR v The State of Western Australia [2018] WASCA 51; (2018) 272 A Crim R 209
Kabambi v The State of Western Australia [2019] WASCA 44
KSN v The State of Western Australia [2017] WASCA 156
LJH v The State of Western Australia [2016] WASCA 155
LYN v The State of Western Australia [2019] WASCA 45
MAS v The State of Western Australia [2012] WASCA 36
MHE v The State of Western Australia [2019] WASCA 133
MMC v The State of Western Australia [2012] WASCA 187
Pennetta v The State of Western Australia [2013] WASCA 234
RGT v The State of Western Australia [2017] WASCA 120
SG v The State of Western Australia [2013] WASCA 236
The State of Western Australia v BKJ [2018] WASCA 136
The State of Western Australia v FJG [2012] WASCA 206
The State of Western Australia v Prince [2011] WASCA 22
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
JUDGMENT OF THE COURT:
Introduction
Over a period of approximately four and a half years commencing in 2015, the appellant, Adam Douglas Newton, repeatedly sexually abused a young girl. The victim, who was the daughter of close friends of the appellant, was eight years old when he began sexually abusing her. The appellant was 31 years old.
Over the course of that four and a half year period, the appellant's abuse of the victim included numerous occasions upon which he penetrated the victim's vagina or mouth with his penis. The appellant photographed much of his abuse of the victim, taking and collecting photographs of himself sexually penetrating her or with the victim in sexual poses with him.
When the appellant was ultimately apprehended, a search of his computer revealed not only the photographs he had taken of the victim, but a collection of child pornography, including 11,009 pictures or videos. He also had six comic books containing images amounting to child exploitation material. Police also located an electronic device belonging to the appellant, a Samsung tablet device. The appellant refused to provide the passcode to that device.
The appellant was ultimately convicted, on his pleas of guilty, of 43 offences. The offences included seven counts of indecently dealing with a child under the age of 13 years, 11 counts of sexually penetrating a child under the age of 13 years, 22 counts of indecently recording a child under the age of 13 years, two counts of possessing child exploitation material and one count of failing to obey a data access order.
On 16 December 2021, Stewart DCJ sentenced the appellant, for all of the offences, to a total effective sentence of 12 years 6 months imprisonment. He was made eligible for parole. In describing the seriousness of the offending, the learned sentencing judge referred to the victim's very young age, the significant age disparity between her and the appellant, the gross breach of trust, the persistence of the offending and the fact that the appellant had recorded much of it.
The appellant appeals the total effective sentence on the basis that it was manifestly excessive and thereby infringed the first limb of the totality principle.
While we accept that the total effective sentence imposed on the appellant was certainly high, and at the upper end of the range of sentences customarily imposed following pleas of guilty for offending of this type, we are not satisfied that the total effective sentence was so high as to manifest error. The sexual offending by the appellant involved a high degree of criminality and the fact that he recorded the offending, for his own gratification, distinguished his offending from a number of the previous cases relied upon by him. The offending, as a whole, called for a very substantial term of imprisonment and we are not satisfied that the learned sentencing judge erred in imposing the sentence that she did.
Accordingly, while we would grant leave to appeal on the sole ground of appeal, the appeal must be dismissed.
Indictment
The indictment contained 43 charges which, together with their maximum penalties, were as follows:
Count Offence type Maximum penalty 1 Indecent dealing with a child under the age of 13 years contrary to s 320(4) of the Criminal Code (WA) 10 years imprisonment 2 Sexual penetration of a child under 13 years contrary to s 320(2) of the Criminal Code (WA) 20 years imprisonment 3 Sexual penetration of a child under 13 years contrary to s 320(2) of the Criminal Code (WA) 20 years imprisonment 4 Sexual penetration of a child under 13 years contrary to s 320(2) of the Criminal Code (WA) 20 years imprisonment 5 Sexual penetration of a child under 13 years contrary to s 320(2) of the Criminal Code (WA) 20 years imprisonment 6 Sexual penetration of a child under 13 years contrary to s 320(2) of the Criminal Code (WA) 20 years imprisonment 7 Indecent recording of a child under the age of 13 years contrary to s 320(6) of the Criminal Code (WA) 10 years imprisonment 8 Indecent recording of a child under the age of 13 years contrary to s 320(6) of the Criminal Code (WA) 10 years imprisonment 9 Sexual penetration of a child under the age of 13 years contrary to s 320(2) of the Criminal Code (WA) 20 years imprisonment 10 Sexual penetration of a child under the age of 13 years contrary to s 320(2) of the Criminal Code (WA) 20 years imprisonment 11 Indecent recording of a child under the age of 13 years contrary to s 320(6) of the Criminal Code (WA) 10 years imprisonment 12 Indecent recording of a child under the age of 13 years contrary to s 320(6) of the Criminal Code (WA) 10 years imprisonment 13 Indecent recording of a child under the age of 13 years contrary to s 320(6) of the Criminal Code (WA) 10 years imprisonment 14 Sexual penetration of a child under the age of 13 years contrary to s 320(2) of the Criminal Code (WA) 20 years imprisonment 15 Indecent recording of a child under the age of 13 years contrary to s 320(6) of the Criminal Code (WA) 10 years imprisonment 16 Sexual penetration of a child under the age of 13 years contrary to s 320(2) of the Criminal Code (WA) 20 years imprisonment 17 Indecent recording of a child under the age of 13 years contrary to s 320(6) of the Criminal Code (WA) 10 years imprisonment 18 Indecent recording of a child under the age of 13 years contrary to s 320(6) of the Criminal Code (WA) 10 years imprisonment 19 Indecent recording of a child under the age of 13 years contrary to s 320(6) of the Criminal Code (WA) 10 years imprisonment 20 Sexual penetration of a child under the age of 13 years contrary to s 320(2) of the Criminal Code (WA) 20 years imprisonment 21 Indecent recording of a child under the age of 13 years contrary to s 320(6) of the Criminal Code (WA) 10 years imprisonment 22 Sexual penetration of a child under the age of 13 years contrary to s 320(2) of the Criminal Code (WA) 20 years imprisonment 23 Indecent recording of a child under the age of 13 years contrary to s 320(6) of the Criminal Code (WA) 10 years imprisonment 24 Sexual penetration of a child under the age of 13 years contrary to s 320(2) of the Criminal Code (WA) 20 years imprisonment 25 Indecent recording of a child under the age of 13 years contrary to s 320(6) of the Criminal Code (WA) 10 years imprisonment 26 Sexual penetration of a child under the age of 13 years contrary to s 320(2) of the Criminal Code (WA) 20 years imprisonment 27 Indecent recording of a child under the age of 13 years contrary to s 320(6) of the Criminal Code (WA) 10 years imprisonment 28 Indecent dealing with a child under the age of 13 years contrary to s 320(4) of the Criminal Code (WA) 10 years imprisonment 29 Indecent recording of a child under the age of 13 years contrary to s 320(6) of the Criminal Code (WA) 10 years imprisonment 30 Indecent dealing with a child under the age of 13 years contrary to s 320(4) of the Criminal Code (WA) 10 years imprisonment 31 Indecent recording of a child under the age of 13 years contrary to s 320(6) of the Criminal Code (WA) 10 years imprisonment 32 Indecent recording of a child under the age of 13 years contrary to s 320(6) of the Criminal Code (WA) 10 years imprisonment 33 Indecent dealing with a child under the age of 13 years contrary to s 320(4) of the Criminal Code (WA) 10 years imprisonment 34 Indecent recording of a child under the age of 13 years contrary to s 320(6) of the Criminal Code (WA) 10 years imprisonment 35 Indecent dealing with a child under the age of 13 years contrary to s 320(4) of the Criminal Code (WA) 10 years imprisonment 36 Indecent recording of a child under the age of 13 years contrary to s 320(6) of the Criminal Code (WA) 10 years imprisonment 37 Indecent dealing with a child under the age of 13 years contrary to s 320(4) of the Criminal Code (WA) 10 years imprisonment 38 Indecent recording of a child under the age of 13 years contrary to s 320(6) of the Criminal Code (WA) 10 years imprisonment 39 Indecent dealing with a child under the age of 13 years contrary to s 320(4) of the Criminal Code (WA) 10 years imprisonment 40 Indecent recording of a child under the age of 13 years contrary to s 320(6) of the Criminal Code (WA) 10 years imprisonment 41 Being in possession of child exploitation material contrary to s 220 of the Criminal Code (WA) 7 years imprisonment 42 Being in possession of child exploitation material contrary to s 220 of the Criminal Code (WA) 7 years imprisonment 43 Failing to obey a data access order, contrary to s 61(2) of the Criminal Investigation Act 2004 (WA) 5 years imprisonment
Circumstances of the offending
There was no dispute as to the circumstances of the appellant's offending.
The appellant was a close friend of the victim's mother and stepfather. As a result, the victim would regularly visit the appellant at his home address. Between 20 September 2015 and 1 June 2020, the appellant persistently sexually abused her.
The offences came to light in two stages. The victim first disclosed to her mother that the appellant had abused her and, on 2 July 2020, participated in an interview with police. Following that interview the appellant was charged with the first four counts on the indictment, as well as count 42 on the indictment, with those offences alleged to have been committed on:
(a)a date unknown between 20 September 2015 and 21 September 2017 (count 1);
(b)a date unknown between 20 September 2017 and 30 December 2018 (count 2);
(c)a date unknown between 1 April 2020 and 1 May 2020 (count 3); and
(d)a date unknown between 1 May 2020 and 1 June 2020 (count 4).
Also on 2 July 2020, police executed a search warrant at the appellant's address, where they seized a computer and hard drive as well as six comic books depicting children engaged in sexual poses or activities (count 42). An examination of the computer and hard drive revealed both the photographs of the other sexual offending against the victim the subject of the indictment, together with the child exploitation images the subject of count 41. As a consequence all of the sexual and indecent offending the subject of counts 5 to 40 on the indictment were alleged to be in the same date range: between 19 September 2015 and 2 June 2020. The facts of that offending, as found by the learned sentencing judge, essentially reflect that which can be seen in the photographs taken by the appellant.
The facts of the offending are as follows.
Count 1
Count 1 was committed at the appellant's home. The victim was aged between eight and nine years old at the time. She and the appellant were in the lounge room, and he told the victim to pull her knickers down. The victim complied, and the appellant stood behind her touching his bare penis against her legs. He pushed the victim to the side, causing her to fall to the floor.[1]
Count 2
[1] WAB 109.
Count 2 took place at a caravan occupied by the appellant. The victim, who was aged between 10 and 11 years old at the time, was seated on one of the two couches in the lounge area of the caravan. The appellant knelt in front of the victim and the victim raised her feet onto the couch. The appellant then penetrated the victim's vagina with his penis. The victim tried to move away from the appellant, as she was in pain. When he was finished, the appellant lifted the victim up and moved her to the other couch. The victim noticed that there was blood on the couch where she had been sitting, and that it had come from her vagina.[2]
Count 3
[2] WAB 109 ‑ 110.
Count 3 took place at another address occupied by the appellant. The victim, who was aged 12, was sitting with the appellant in the lounge room while he played video games. The victim was wearing jeans and a jumper. The appellant told the victim to take her clothes off, which she did. The victim knelt on the ground facing the couch and the appellant knelt behind her and penetrated her vagina with his penis.[3]
Count 4
[3] WAB 110.
The next offence (count 4) was committed at the same place as count 3. The victim, who was then aged 12, was sitting on the couch with the appellant. The appellant hinted that he wanted to have sex. The victim complied, taking off her leggings and underwear, and lay face down on the couch. The appellant took off all his clothes except his socks and penetrated the victim's vagina with his penis. He did not use a condom.[4]
Counts 5 to 9
[4] WAB 110.
Counts 5 to 9 were all committed on the same day. The appellant penetrated the victim's mouth with his penis (count 5) and took four photographs of the offending (counts 6 to 9).[5]
Counts 10 to 13
[5] WAB 110.
On another occasion, the appellant again penetrated the victim's mouth with his penis (count 10) and took three photographs of the offending (counts 11 to 13).[6]
Counts 14 and 15
[6] WAB 110.
On another occasion, the appellant again penetrated the victim's mouth with his penis (count 14) and took a photograph of the offending (count 15).[7]
Counts 16 to 19
[7] WAB 110.
On another occasion, the appellant again penetrated the victim's mouth with his penis (count 16) and took three photographs of the offending (counts 17 to 19).[8]
Counts 20 and 21
[8] WAB 110.
On another occasion, the appellant penetrated the victim's vagina with his penis (count 20) and took a photograph of the offending (count 21).[9]
Counts 22 and 23
[9] WAB 110.
On another occasion, the appellant again penetrated the victim's vagina with his penis (count 22) and took a photograph of the offending (count 23).[10]
Counts 24 and 25
[10] WAB 110.
On another occasion, the appellant penetrated the victim's mouth with his penis (count 24) and took a photograph of the offending (count 25).[11]
Counts 26 and 27
[11] WAB 111.
On another occasion, the appellant again penetrated the victim's mouth with his penis (count 26) and took a photograph of the offending (count 27).[12]
Counts 28 and 29
[12] WAB 111.
On another occasion, the appellant indecently dealt with the victim by standing naked in front of her and guiding her to touch his penis with her right hand (count 28). The appellant took a photograph of the offending (count 29).[13]
Counts 30 to 32
[13] WAB 111.
On another occasion, the appellant indecently dealt with the victim by standing naked over her with his penis pointed towards her vagina while the victim's legs were in the air (count 30). The appellant took two photographs of the offending (counts 31 and 32).[14]
Counts 33 and 34
[14] WAB 111.
On another occasion, the appellant indecently dealt with the victim by standing naked in front of her with an erect penis while the victim knelt in front of him (count 33). The appellant took a photograph of the offending (count 34).[15]
Counts 35 and 36
[15] WAB 111.
On another occasion, the appellant indecently dealt with the victim by standing naked in front of her with an erect penis while the victim knelt in front of him with her hand around his penis (count 35). The appellant took a photograph of the offending (count 36).[16]
Counts 37 and 38
[16] WAB 111.
On another occasion, the appellant indecently dealt with the victim by standing naked over her, while she was laying on the floor with her mouth open (count 37). The appellant took a photograph of the offending (count 38).[17]
Counts 39 and 40
[17] WAB 111.
On another occasion, the appellant indecently dealt with the victim by laying naked on a couch while the victim was positioned next to him with his erect penis in her hand (count 39). The appellant took a photograph of the offending (count 40).[18]
Count 41
[18] WAB 111 ‑ 112.
The police examination of the appellant's computer revealed that he had possession of 11,009 pictures or videos containing child exploitation material.[19] The material included:
(a)2,891 category 1 images, being depictions of children with no sexual activity;
(b)352 category 2 images, being depictions of non‑penetrative sexual activity involving children;
(c)867 category 3 images, being depictions of non‑penetrative sexual activity between children and adults;
(d)1,138 category 4 images, being depictions of penetrative sexual activity between children and/or adults;
(e)24 category 5 images, being depictions of sadism or bestiality involving children; and
(f)5,182 images and 555 videos of category 6 child exploitation material, being animated child exploitation material.
Count 42
[19] WAB 112 ‑ 113. While at one point the learned sentencing judge recorded that there were 11,640 images the subject of count 41, the precise number of images was corrected at WAB 124.
The search of the appellant's house on 2 July 2020 revealed that he had in his possession further child exploitation material, being six comic books depicting children engaged in sexual poses or activities.[20]
Count 43
[20] WAB 113.
During the search, police also located a Samsung Galaxy Note 10.1 device. The appellant declined to provide police with the passcode to unlock that device. On 27 January 2021, police served the appellant with a data access order, requiring that he provide police with a passcode to the device by 8 February 2021. On 7 February 2021, the appellant advised police that he did not know the passcode.[21]
[21] WAB 113.
Sentencing remarks
The learned sentencing judge, having set out the facts of the appellant's offending and the applicable maximum penalties, identified a number of features demonstrating the seriousness of the offending, including the victim's young age (eight to 12 years of age), the significant age disparity between the appellant and the victim, the gross breach of trust for his own sexual gratification, the persistence of the offending and the fact that he recorded a number of the offences. Her Honour observed that the child exploitation material in the appellant's possession included material in the more serious category of child exploitation material.[22]
[22] WAB 114 ‑ 115.
By way of mitigation, the learned sentencing judge recognised the appellant's early plea of guilty, for which she stated she would give the appellant a full discount of 25%. Her Honour found that the appellant's acceptance of responsibility was evidence of remorse. The appellant had no prior criminal record. Her Honour said that it was to the appellant's credit that he attended seven sessions of counselling after being charged with the offences. The learned sentencing judge was provided with a report from the counsellor, in addition to a presentence report and psychological report prepared for the purposes of sentencing and a victim impact statement from the victim.[23]
[23] WAB 115.
The learned sentencing judge set out the appellant's personal circumstances. He was 36 years of age at the time of sentencing. He was the only child of his parents, but has three older half‑siblings from a previous union of his mother. The appellant's parents are both profoundly deaf and his mother was currently being treated for cancer.[24]
[24] WAB 115.
The appellant left school in year 11 and attended TAFE, studying internet and networking studies. At age 25 years, the appellant attended university and, over the course of five years, gained a degree in Asian Studies. He had variously worked as an IT technician, postal worker, service station attendant and storeperson. The appellant's most recent employment, as a car hire officer, ceased when he was charged with the offences.[25]
[25] WAB 115 ‑ 116.
The learned sentencing judge observed that the appellant had had a number of short‑term relationships, but no significant unions since he was 20 years of age. The psychological report, her Honour noted, said that the appellant appeared to view his sexual contact with the victim as a relationship.[26]
[26] WAB 116.
The psychologist also reported that the appellant began to view child exploitation material in his mid-20s and that he found he became sexually aroused by it and masturbated to this material. This established and reinforced a sexual interest in children. He disclosed a deviant sexual arousal interest in underage girls. He continued to use adult pornography.[27]
[27] WAB 116.
The appellant has a history of cannabis and alcohol use. The learned sentencing judge noted that the appellant denied substance use was correlated with his offending. He had limited awareness of his mental health and had not sought any diagnoses until he was referred to the counsellor following being charged.[28]
[28] WAB 116 ‑ 117.
The learned trial judge referred to the conclusion in the psychological report that the appellant would be eligible for a sex offender treatment program as he was viewed as an average risk of reoffending and he had disclosed deviant sexual arousal patterns in his history. The psychologist highly recommended that the appellant completes that intervention before release, which he expressed motivation to access.[29]
[29] WAB 117.
The learned trial judge referred to the important sentencing considerations, including general deterrence and personal deterrence. Her Honour also referred to a number of decisions of this Court, including LJH v The State of Western Australia[30] and The State of Western Australia v BKJ,[31] and observed that there was no tariff for offences of the kind committed by the appellant. The learned trial judge also referred to decisions of this Court in relation to the seriousness of offences of possession child exploitation and of failing to obey data access orders. Her Honour also accurately set out the effect of the totality principle.
[30] LJH v The State of Western Australia [2016] WASCA 155 (LJH).
[31] The State of Western Australia v BKJ [2018] WASCA 136 (BKJ).
In all of the circumstances the learned trial judge imposed a total effective sentence of 12 years 6 months imprisonment. The sentences for the individual offences (together with their concurrency or cumulacy) were:
Count 1
18 months imprisonment
Concurrent
Count 2
5 years imprisonment
Head sentence
Count 3
5 years imprisonment
Concurrent
Count 4
5 years imprisonment
Concurrent
Count 5
4 years imprisonment
Cumulative
Count 6
12 months imprisonment
Concurrent
Count 7
12 months imprisonment
Concurrent
Count 8
12 months imprisonment
Cumulative
Count 9
12 months imprisonment
Concurrent
Count 10
4 years imprisonment
Concurrent
Count 11
12 months imprisonment
Concurrent
Count 12
12 months imprisonment
Concurrent
Count 13
12 months imprisonment
Concurrent
Count 14
4 years imprisonment
Concurrent
Count 15
12 months imprisonment
Concurrent
Count 16
4 years imprisonment
Concurrent
Count 17
12 months imprisonment
Concurrent
Count 18
12 months imprisonment
Concurrent
Count 19
12 months imprisonment
Concurrent
Count 20
5 years imprisonment
Concurrent
Count 21
12 months imprisonment
Concurrent
Count 22
4 years imprisonment
Concurrent
Count 23
12 months imprisonment
Concurrent
Count 24
4 years imprisonment
Concurrent
Count 25
12 months imprisonment
Concurrent
Count 26
4 years imprisonment
Concurrent
Count 27
12 months imprisonment
Concurrent
Count 28
18 months imprisonment
Concurrent
Count 29
12 months imprisonment
Concurrent
Count 30
18 months imprisonment
Concurrent
Count 31
12 months imprisonment
Concurrent
Count 32
12 months imprisonment
Concurrent
Count 33
18 months imprisonment
Concurrent
Count 34
12 months imprisonment
Concurrent
Count 35
12 months imprisonment
Cumulative
Count 36
12 months imprisonment
Concurrent
Count 37
18 months imprisonment
Concurrent
Count 38
12 months imprisonment
Concurrent
Count 39
18 months imprisonment
Concurrent
Count 40
12 months imprisonment
Concurrent
Count 41
15 months imprisonment
Cumulative
Count 42
12 months imprisonment
Concurrent
Count 43
3 months imprisonment
Cumulative
In ordering that a number of the terms of imprisonment be served concurrently, the learned trial judge expressly referred to considerations of totality. In addition, her Honour stated that she had reduced the individual sentences for counts 35 and 43 to reflect the totality principle.
The learned trial judge ordered that the appellant be eligible for parole and that the sentences commence on 4 September 2021, on account of the time the appellant had spent in custody.
Ground of appeal
The sole ground of appeal is that the total effective sentence of 12 years 6 months imprisonment was manifestly excessive (i.e. that it infringed the first limb of the totality principle). A ground of appeal alleging that the total effective sentence infringed the second limb of the totality principle (i.e. that it was crushing) was abandoned at the hearing of the appeal.
Legal principles
The legal principles governing appeals contending that the total effective sentence infringes the first limb of the totality principle are well known.[32]
[32] Kabambi v The State of Western Australia [2019] WASCA 44 [21] (Buss P, Mitchell & Pritchard JJA).
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
The range of sentences imposed in other cases does not establish the bounds of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors and that there is no single correct sentence. What is important are the unifying principles which sentences imposed in comparable cases reveal and reflect.
The limited utility of broadly comparable cases has been emphasised in the context of sexual offending, including sexual offending against children, given the wide variety of combinations of offending conduct involved in such offending. As this Court observed in CAND v The State of Western Australia:[33]
[B]ecause the range of circumstances of sexual offending and sexual offenders are infinitely variable, there is no established tariff for sexual offences involving children and the total effective sentence imposed in one case can only provide very limited guidance in assessing whether the total effective sentence imposed in the case under appeal is manifestly excessive, in the sense that error can be implied from the exercise of the sentencing discretion. For those reasons there will necessarily be limits upon the utility of the process of argument presented on behalf of the appellant.
[33] CAND v The State of Western Australia [2018] WASCA 101 [48] (Martin CJ, Beech JA & Hall J).
To similar effect, in Pennetta v The State of Western Australia, Hall J observed:[34]
Where, however, it is only claimed that there has been a breach of the totality principle and no challenge is made to the individual sentences the utility in comparing the total effective sentence with total sentences in other cases is more limited. This is because the total effective sentence is not one imposed for a single offence. It is often difficult enough to compare sentences imposed in different cases with different factual circumstances and different personal circumstances where the offences (sic - sentence) relates only to a single offence. The fact that different offenders may have received different total effective sentences in respect of different groupings of sentences adds a level of complexity that makes comparisons difficult. Nonetheless it is important to ensure that there is broad consistency in sentences. (authorities omitted)
[34] Pennetta v The State of Western Australia [2013] WASCA 234 [39] (Hall J).
The observations of Mitchell JA in JJR v The State of Western Australia,[35] cited with approval in MHE v State of Western Australia,[36] are also pertinent:
Often, given the wide variety of combinations of offending conduct, offenders and victims involved in sexual offences against children, different views may reasonably be taken as to whether the overall criminality involved in a group of offences in one case is greater or lesser than that involved in a group of offences in a different case. That variety makes it difficult to identify direct comparators and complicates any attempt to analyse whether the total effective sentence imposed in a particular case reveals a comparatively more severe or lenient approach than that adopted in a different case.
[35] JJR v The State of Western Australia [2018] WASCA 51; (2018) 272 A Crim R 209 [168] (Mitchell JA) (JJR).
[36] MHE v The State of Western Australia [2019] WASCA 133 (MHE) [81] (Mitchell & Beech JJA).
Disposition
The limited utility in comparing the total effective sentence in this case with the total sentences in other cases, recognised in CAND v The State of Western Australia, Pennetta v The State of Western Australia and JJR, presented a particular difficulty for the appellant in the present case.
That is because the appellant's submissions largely consisted of a litany of previous decisions of this Court, with a tally of the number of offences, age of the victims, period of offending and other features in the various cases. The appellant referred to VIM v The State of Western Australia,[37] The State of Western Australia v Prince,[38] RGT v The State of Western Australia,[39] BKJ, GHK v The State of Western Australia,[40] GMS v The State of Western Australia,[41] LYN v The State of Western Australia,[42] EXF v The State of Western Australia,[43] MMC v The State of Western Australia,[44] LJH, ERA v The State of Western Australia,[45] MAS v The State of Western Australia,[46] ARK v The State of Western Australia,[47] JJR, AIM v The State of Western Australia,[48] CJF v The State of Western Australia,[49] KSN v The State of Western Australia,[50] SG v The State of Western Australia[51] and The State of Western Australia v FJG.[52]
[37] VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1 (VIM).
[38] The State of Western Australia v Prince [2011] WASCA 22 (Prince).
[39] RGT v The State of Western Australia [2017] WASCA 120.
[40] GHK v The State of Western Australia [2014] WASCA 19.
[41] GMS v The State of Western Australia [2009] WASCA 107.
[42] LYN v The State of Western Australia [2019] WASCA 45.
[43] EXF v The State of Western Australia [2015] WASCA 118.
[44] MMC v The State of Western Australia [2012] WASCA 187.
[45] ERA v The State of Western Australia [2013] WASCA 163.
[46] MAS v The State of Western Australia [2012] WASCA 36.
[47] ARK v The State of Western Australia [2014] WASCA 45.
[48] AIM v The State of Western Australia [2014] WASCA 155.
[49] CJF v The State of Western Australia [2012] WASCA 69.
[50] KSN v The State of Western Australia [2017] WASCA 156.
[51] SG v The State of Western Australia [2013] WASCA 236.
[52] The State of Western Australia v FJG [2012] WASCA 206.
This was not, with respect, a particularly illuminating exercise. If anything it simply served to demonstrate the infinitely variable range of circumstances that is apt to make comparisons between the total effective sentence in one case and the total effective sentence in other cases such a difficult exercise.
Indeed the appellant's analysis of the range of sentences in cases such as this, revealed the wide breadth of sentences customarily imposed. By reference to the early decisions in VIM and Prince, for example, the appellant identified ranges of sentences for offenders who plead guilty in broadly comparable cases as ranging from 6 years 8 months imprisonment to 12 years 8 months imprisonment (in VIM) and 4 years 2 months imprisonment to 12 years 6 months imprisonment (in Prince). The appellant acknowledged, in his written submissions, that his total effective sentence was within, but at the very top of, the ranges identified in those cases. His submissions went on to identify a number of subsequent cases in which a total effective sentence of 12 years imprisonment or more had been imposed on pleas of guilty.[53] In that regard, as was noted in JJR, sentences for offences of this type have 'firmed up' since VIM.[54]
[53] Appellant's submissions [66] ‑ [67] (WAB 19).
[54] JJR [102] (Martin CJ).
Perhaps surprisingly, the appellant did not refer to this Court's decision in MHE, in which Mitchell and Beech JJA undertook a comprehensive analysis of all of the decisions referred to by the appellant. There were a number of features of that case that bore similarity to the present case. For example, MHE was also a case in which most of the sexual offending for which the appellant was sentenced had been recorded, although in that case it had been recorded by a CCTV camera and was not recorded for the appellant's sexual gratification. Also in that case, the sentencing judge at first instance had imposed a total effective sentence of 12 years 6 months imprisonment, a sentence that was reduced on appeal to 10 years imprisonment.
At the same time, there are other features of MHE that serve to distinguish it from the present case: the period of the offending was shorter (approximately one year), there were no counts of penile/vaginal penetration and it did not include the additional offending in the present case involving child exploitation material and failing to obey a data access order. Bearing these matters in mind, the lesser sentence imposed by this court in MHE provides no indication of error in the sentence imposed in the present case.
Similarly, LJH had a number of features in common with the present case. The number and nature of the sexual offences were comparable and the appellant in LJH had made recordings of some of the offending. The appellant in LJH also had in his possession other child exploitation material, although it was a small fraction of the quantity possessed by the appellant in the present case (42 videos).[55] The Court in LJH reduced a total effective sentence of 13 years imprisonment to a total effective sentence of 10 years imprisonment.[56]
[55] LJH [29] (Martin CJ).
[56] LJH [100] (Martin CJ) [131] (Mazza JA & Beech J).
Again, however, there were a number of features of LJH that serve to distinguish it from the present case. The victim in this case was substantially younger than the victim in LJH (who was 14 to 15 years old), the period of the offending was also shorter (21 months) and it did not include the offence of failing to obey a data access order.[57] When these matters are borne in mind, the sentence in LJH does not tend to reveal error in the appellant's total effective sentence.
[57] See LJH [85] (Martin CJ).
In our view, having regard to these, and the other, cases relied upon by the appellant, it cannot be said that the total effective sentence in the present case was such as to manifest error. The sentence was certainly severe. It nevertheless fits broadly within the range of sentences imposed for offending of this type, and the present case had a number of particular features not present in many of the authorities.
At the level of principle, the offending itself was very serious. In particular it involved four distinct categories of offending, the presence of which called for accumulation of terms of imprisonment, thus increasing the total effective sentence. The presence of these additional categories serves to distinguish the present case from many of the cases on which the appellant relied.
First, the sexual offending against the victim was itself very serious, given the victim's young age, the significant age disparity between the appellant and the victim, the gross breach of trust for his own sexual gratification and the significant period over which and numerous (18) occasions on which the offending occurred. The seriously damaging effects on the victim are apparent from her victim impact statement. As is rightly recognised in his submissions, the appellant persistently and callously treated the victim as a sexual plaything for his sexual gratification.
Secondly, the appellant's offending included recording and retaining photographs of his offending on the victim. That conduct contributed substantially to the appellant's overall criminality. The appellant recorded his abuse of the victim for his own sexual gratification, in essence to extend and prolong his gratification from abusing the victim into the future. In this way, the victim could be said to have been re‑victimised each time the appellant viewed, and used, those images for his sexual gratification.
Thirdly, the very significant quantity of child exploitation material in the appellant's possession called for a further increase in the total effective sentence. In addition to the significant need for general deterrence in relation to the possession of such material, the appellant's possession of the material the subject of counts 41 and 42 instantiated and reinforced his deviant sexual interest in children, which he acted upon. He was consequently, as the psychologist reported, an average risk of reoffending requiring treatment and intervention. In themselves, these offences involved significant criminality warranting a substantial term of imprisonment.
Finally, the appellant failed to comply with a data access order. As this Court has recognised, a cumulative sentence will often be appropriate for failure to comply with a data access order. There is a public interest in ensuring that offenders cannot frustrate the exercise of the statutory power to require access to data with impunity.[58] Considerations of general and personal deterrence justified the imposition of a cumulative sentence for that offence.
[58] Chadburne v The State of Western Australia [2017] WASCA 216 [69] (Martin CJ, Mazza & Mitchell JJA).
Against this accumulating criminality, the only significant mitigating factor in the present case was the appellant's plea of guilty. As this Court has recognised, the significance of a plea of guilty, in avoiding the risk of further trauma and psychological harm to the victims of sexual offending against children, should not be underestimated.[59] That is so, even in a case such as this where, given that the appellant produced compelling proof of much (but not all) of his own offending, the prosecution case was a very strong one.[60]
[59] LYN [51] (Mazza, Mitchell & Beech JJA); MHE [7] (Quinlan CJ), [83] (Mitchell & Beech JJA).
[60] LJH [127] (Mazza & Beech JJA).
There was, however, no error in the application of this principle in the present case. The learned sentencing judge expressly stated that she would give the appellant full credit for his pleas of guilty and the total effective sentence itself does not suggest, and certainly does not demonstrate, that her Honour failed to do so.
In our view, giving full weight to the mitigatory effect of the appellant's pleas of guilty, the total effective sentence imposed on the appellant cannot be said to be unreasonable or plainly unjust. It was open to the learned sentencing judge, on a proper exercise of her Honour's discretion, to impose the total effective sentence that she did.
The appeal must be dismissed.
Conclusion
The total effective sentence imposed on the appellant was certainly high, and at the upper end of the range of sentences customarily imposed following pleas of guilty for offending of this type. While we would grant leave to appeal, the ground has not been made out.
The appeal must be dismissed.
We would make the following orders:
1.Leave to appeal granted.
2.Appeal dismissed.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
SC
Principal Associate to the Honourable Chief Justice Quinlan
17 JANUARY 2023
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