Pendleton v The Queen
[2013] WASCA 289
•20 DECEMBER 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: PENDLETON -v- THE QUEEN [2013] WASCA 289
CORAM: NEWNES JA
MAZZA JA
HEARD: 5 SEPTEMBER 2013
DELIVERED : 20 DECEMBER 2013
FILE NO/S: CACR 119 of 2013
BETWEEN: MARK PENDLETON
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :HALL J
File No :INS 85 of 2012
Catchwords:
Criminal law - Application for leave to appeal against sentence - Conspiring to engage in sexual intercourse with person under the age of 16 while outside Australia - Totality principle
Legislation:
Crimes Act 1914 (Cth), s 50BA
Criminal Code (Cth), s 11.5
Dangerous Sexual Offenders Act 2006 (WA), s 17(1)(a)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: No appearance
Solicitors:
Appellant: David McKenzie Legal Pty Ltd
Respondent: Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Pendleton v The Queen [2002] WASCA 4
Roffey v The State of Western Australia [2007] WASCA 246
Sabri v The State of Western Australia [2012] WASCA 71
NEWNES JA: I agree with Mazza JA.
MAZZA JA: This is an application for leave to appeal against sentence.
The appellant and Kenneth William Bishop were tried in the Supreme Court on three counts of conspiring to engage in sexual intercourse while outside Australia with a person who is under 16 years of age, contrary to s 50BA of the Crimes Act 1914 (Cth) and s 11.5 of the Criminal Code (Cth). This offence carries a maximum penalty of 17 years' imprisonment. A co‑conspirator, Robert Gordon Cummins, pleaded guilty to these charges and gave evidence at the trial. The appellant was convicted of two of the three charges. Mr Bishop was acquitted on all counts.
On 20 May 2013, the appellant was sentenced on each offence to 6 years and 6 months' immediate imprisonment with a non‑parole period of 4 years. The sentences were ordered to be served concurrently.
There were two proposed grounds of appeal. The first ground, which alleged that the individual sentences were manifestly excessive, was abandoned at the hearing of this application. The appellant's counsel conceded that the individual sentences were appropriate. The appellant pursued the second proposed ground of appeal which alleged that the total effective sentence imposed upon him infringed the first limb of the totality principle, having regard to the fact that the appellant had, at the time he was sentenced, just completed a 12 year term of imprisonment and was subject to a continuing detention order under s 17(1)(a) of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act).
For the reasons that follow, the proposed ground of appeal has no reasonable prospects of succeeding.
The facts
The facts are not in dispute. The conspiracies took place between 26 October 2006 and 19 September 2008 while the appellant was serving a term of imprisonment for child sexual and child pornography offences (the 2000 charges). That term of imprisonment commenced in 2000. I will say something more about those offences and the sentence that was imposed upon the appellant for them later in these reasons.
In 2005, the appellant took part in a sexual offenders treatment program at Casuarina Prison. During that program, he met a fellow prisoner, Robert Gordon Cummins, and formed a friendship with him.
Both the appellant and Mr Cummins harbour a sexual attraction towards young girls.
In 2006, the appellant and Mr Cummins were transferred to the Karnet Prison Farm. There they hatched a plan to both travel to Thailand upon their release and offend in a sexual way against children.
The plan as described by the learned sentencing judge involved each of the appellant and Mr Cummins setting up a business. The appellant planned to establish a business making porcelain dolls dressed in traditional costumes. Mr Cummins' plan was to make clothes or items made from canvas using skills that he had acquired in prison.
It was intended that the businesses would be set up in rural and relatively impoverished areas in Thailand, employing local women with young children against whom they could offend. The appellant and Mr Cummins regarded their businesses as compatible and believed they would enable each of them to access a broader pool of victims.
In February 2008, Mr Cummins was released on parole. The appellant and Mr Cummins continued to communicate with each other, including by telephone. These conversations were recorded and comprised part of the evidence against the appellant at his trial.
Having been released from prison, Mr Cummins began communicating with women in Thailand via internet chatroom sites. Some of these communications were printed out and provided to the appellant, including communications with photographs of children. The appellant and Mr Cummins referred to these photographs in their telephone conversations and engaged in sexual innuendo and banter about them. It is clear from those conversations that the appellant saw these children as prospective victims for him and Mr Cummins. Mr Cummins referred one of the Thai women to the appellant and acted as a conduit for internet communications between the appellant and her. The appellant had at least one telephone conversation with that woman.
The recorded conversations between the appellant and Mr Cummins include references to providing gifts and money to the woman. His Honour found that this was an exercise in grooming to make access to the children for sexual purposes easier.
The appellant spoke to Mr Cummins about the ease with which a family could be 'purchased' in Thailand.
Mr Cummins made inquiries on the internet about businesses and real estate for lease or purchase in that country. He also obtained information about the Thai language and culture and the legalities of establishing a business in Thailand. The appellant provided ideas for products and clothing designs. He took steps to learn the Thai language. His Honour found that while Mr Cummins was able to do more directly to further the conspiracies because he was in the community, their involvement was equal.
The conspiracy came to an end in 2008, when the police executed a number of search warrants. By that time, the planning was well advanced and many steps had been taken to carry it out.
His Honour viewed the conspiracy as 'a very serious one'. He considered the following factors to have been particularly relevant:
1.The intended victims were very young children, probably between the ages of young babies to 8‑year‑olds.
2.The offences were to occur in a rural area of Thailand where the poverty of the people meant that they could be easily exploited.
3.The appellant intended to work together with Mr Cummins to better achieve their mutual objectives.
4.The appellant and Mr Cummins engaged in a significant amount of planning and preparation. His Honour found that what they did went well beyond any fantasy or mere hope. The purpose of their travel to Thailand was to offend.
5.The conspiracy involved a callous plan entered into for the purpose of obtaining sexual gratification without regard to the damage and suffering the conduct might cause. In the appellant's case, there was a complete lack of empathy, remorse or acceptance of responsibility.
6.Deterrence, both general and personal, was an important sentencing consideration.
The 2000 offences
Between 1 January 1995 and 24 February 2000, while the appellant was employed as a pre‑primary school teacher, he committed a large number of child sexual and child pornography offences against 11 or 12 young girls aged between 4 and 5 years at the relevant times. Those offences were as follows:
(a)Six counts of possession of child pornography.
(b)One count of showing offensive material to a child under the age of 13 years.
(c)20 counts of indecent dealing with a child under the age of 13 years.
(d)18 counts of procuring a child under the age of 13 years to do an indecent act.
(e)Nine counts of sexual penetration of a child under the age of 13 years.
(f)76 counts of indecent recording of a child under the age of 13 years.
(g)Unlawful possession of 37 pairs of young girls' knickers.
The details of this offending are set out in the reasons of the Court of Criminal Appeal in Pendleton v The Queen [2002] WASCA 4, between [5] and [11]. They need not be repeated here. It is sufficient to observe that over a long period of time the appellant sexually abused many highly vulnerable victims while entrusted with their care as a pre‑school teacher.
The appellant received a total effective sentence of 12 years' imprisonment without eligibility for parole, to be followed by an indefinite sentence pursuant to s 98 of the Sentencing Act 1995 (WA) as it then was.
On appeal, the period of 12 years' imprisonment was not disturbed. Kennedy J (with whom Wallwork J and Pidgeon AuJ agreed) described it as 'appropriate and entirely justified having regard to the nature and number of the offences committed by the [appellant]' [46]. However, the order for indefinite imprisonment was set aside because there was, at that time, insufficient material to justify a finding that the appellant 'would be a danger to society, or a part of it' upon his release. A parole eligibility order was also made on appeal.
The appellant's antecedents
At the time that he was sentenced for the conspiracy offences with which this case is concerned, the appellant was 53 years of age and had, as his Honour observed, been in prison for many years. In fact, the appellant had, between 11 March 2000 and 12 March 2011, served the sentence for the 2000 offences. From 12 March 2011, he was in custody as a remand prison for a State offence of conspiracy and later for the Commonwealth offences of conspiracy. He was also, from 11 March 2011, subject to a detention order pursuant to s 14(2)(b)(i) of the DSO Act. Later, on 20 January 2012, McKechnie J ordered that the appellant be detained in custody for an indefinite term for control, care and treatment pursuant to s 17(1)(a) of that Act. That order is subject to annual review. McKechnie J's order remains in place until it is rescinded. The appellant's first annual review will occur 12 months after the completion of the current sentence: s 29(2)(a) of the DSO Act.
His Honour observed that the appellant had a 'significant prior history of sexually offending against children'. His Honour described the appellant as a highly intelligent man who, despite undertaking an intensive sexual offender treatment program, maintained a perverted desire to sexually exploit children. The material before his Honour suggested to him that the appellant was 'an intractable offender with little prospect of rehabilitation'. His Honour addressed the criteria in s 16A of the Crimes Act 1914 (Cth). There was no mitigation, save that his Honour took into account that the resolution of the charges had been delayed.
The appellant's arguments
Counsel for the appellant submitted that, having regard to the sentence imposed upon the appellant by Hall J, the appellant will have served a total period of imprisonment of almost 20 years from 11 March 2000 to 19 November 2019. Further, the appellant will, upon the completion of the sentence imposed upon him by Hall J, be still subject to the continuing detention order made under the DSO Act. It is submitted that, having regard to these matters, the sentence imposed by Hall J infringed the first limb of the totality principle.
The totality principle
The totality principle is well recognised. A generally accepted statement of the principle was made by McLure JA in Roffey v The State of Western Australia [2007] WASCA 246 [24] ‑ [26]:
The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341.
The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J).
The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up: R v Holder (260).
I accept that the totality principle applies when an offender is serving or liable to serve a sentence that has already been imposed: Sabri v The State of Western Australia [2012] WASCA 71. Here, the appellant had completed serving the term of imprisonment that was imposed upon him in 2000, some two years before he was sentenced for the current offences. I will assume in the appellant's favour that his Honour was obliged to take into account the earlier sentence in sentencing the appellant for the current offences. The fact that the appellant is subject to a continuing detention order is irrelevant to a consideration of the totality principle. Such an order is not a sentence for past offending. It is detention because the person poses an unacceptable risk that he or she will commit a serious sexual offence in the future.
In my opinion, the totality principle has not been breached. The appellant's overall criminal behaviour is of the utmost seriousness. The appellant has an intractable sexual attraction to very young children and a strong desire to act on it. Programs designed to rehabilitate him have been demonstrably unsuccessful. With respect to the current offences, the appellant met Mr Cummins at an intensive sexual offender treatment program while a serving prisoner. He then, for almost 2 years, and while still a prisoner, entered into a determined and elaborate conspiracy with Mr Cummins. The conspiracy involved the two men travelling overseas and, in the guise of a legitimate business, procuring access to already vulnerable children to engage in deviant sexual behaviour without a scintilla of regard to their wellbeing. A substantial term of imprisonment was called for.
There is no doubt that the total sentence that the appellant has served and will serve is very long, but, having regard to the serious and sustained nature of the offending and the need to provide general and personal deterrence, as well as protection to the public, particularly young and highly vulnerable children, it cannot be said that the sentence imposed by Hall J infringed the first limb of the totality principle.
Conclusion and orders
As the only ground of appeal that was argued has no reasonable prospect of succeeding, leave to appeal should be refused, with the consequence that the appeal is taken to be dismissed: Criminal Appeals Act s 27(1), (2) and (3).
The orders I would make are as follows:
1.Leave to appeal is refused.
2.The appeal is dismissed.
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