PNS v The State of Western Australia
[2016] WASCA 174
•7 OCTOBER 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: PNS -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 174
CORAM: MARTIN CJ
NEWNES JA
MITCHELL JA
HEARD: 12 SEPTEMBER 2016
DELIVERED : 7 OCTOBER 2016
FILE NO/S: CACR 225 of 2015
BETWEEN: PNS
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :O'NEAL DCJ
File No :IND 457 of 2015, IND 963 of 2015
Catchwords:
Criminal law - Appeal against sentence - Indecently recording, indecently dealing with child of or over 13 years and under 16 years - Indecently dealing with a child under 13 years - Possession of child exploitation material - Plea of guilty - Lengthy record of child sex offences - Total effective sentence of 6 years' imprisonment - Appeal allowed
Legislation:
Nil
Result:
Appeal allowed
Appellant resentenced to total effective term of 4 years' imprisonment
Category: B
Representation:
Counsel:
Appellant: Mr A Elliott
Respondent: Mr J McGrath SC
Solicitors:
Appellant: N R Barber Legal Barristers & Solicitors
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Downie v The State of Western Australia [2013] WASCA 244
D'Rozario v The State of Western Australia [2015] WASCA 171
Gavenlock v The State of Western Australia [2014] WASCA 36
HFM v The State of Western Australia [2012] WASCA 217
House v The King [1936] HCA 40; (1936) 55 CLR 499
KWJW v The State of Western Australia [2010] WASCA 29
Roffey v The State of Western Australia [2007] WASCA 246
Schriever v The State of Western Australia [2008] WASCA 133
Wilson v The State of Western Australia [2010] WASCA 82
JUDGMENT OF THE COURT: This is an appeal against sentence. On 27 November 2015, in the District Court, the appellant was convicted on his fast‑track pleas of guilty to six counts on indictments 457 and 963 of 2015, and four charges on a notice under s 32 of the Sentencing Act 1995 (WA).
The indictments contained one count of indecently dealing with a child under the age of 13 years; two counts of indecently recording a child of or over the age of 13 years and under the age of 16 years; one count of indecently dealing with a child of or over the age of 13 years and under the age of 16 years; and two counts of possessing child exploitation material.
On 27 November 2015, O'Neal DCJ sentenced the appellant to a total effective term of 6 years' imprisonment and a fine of $400. The sentence was backdated to 14 July 2015 and the appellant was made eligible for parole.
Background
On 21 February 2013, police executed a search warrant at the appellant's residential address. During the search, officers located a number of items, including a laptop bag containing a 4 gigabyte thumb drive and a 500 gigabyte hard drive. These items were seized and sent for analysis.
As a result of the analysis, police identified two videos of the victim, J, made by the appellant. The victim was 14 years old at the time of the offending, and the appellant was 44 years old. The first video showed the victim asleep on the appellant's lounge. His underwear was pulled down and his buttocks were being pulled apart by the appellant to expose his anal passage to the camera. The appellant was charged with one count of indecently dealing with a child of or over the age of 13 years and under the age of 16 years, and one count of indecently recording a child of or over the age of 13 years and under the age of 16 years (counts 3 and 1 respectively on indictment 963).
The second video showed the victim lying on the appellant's lounge with his erect penis protruding out of the top of his underwear. The video moved in to focus on the victim's genitalia. The appellant was charged with one count of indecently recording a child of or over the age of 13 years and under the age of 16 years (count 2 on indictment 963). The conduct the subject of these counts occurred in November 2010.
As a result of the analysis, police also located on the devices 381 images and 72 videos categorised as child exploitation material. These included 156 images identified as category 1 child exploitation material; 59 images and 26 videos identified as category 2 child exploitation material; 35 images and one video identified as category 3 child exploitation material; 126 images and 41 videos identified as category 4 child exploitation material; and five images and four videos identified as category 5 child exploitation material. The appellant was charged with one count of possession of child exploitation material (count 4 on indictment 963).
The offence of indecently dealing with a child under the age of 13 years (indictment 457 of 2015) occurred on 1 February 2015, after the seizure of the electronic devices from the appellant's residence, but before the devices were analysed. The incident occurred in a Coles Supermarket. The victim, M, was standing with her mother near a checkout counter. She was eight years of age. The appellant passed the victim as he walked towards the exit to the supermarket, and as he did so, he pressed his fingers between her buttocks over the material of her skirt. The victim alerted her mother, and the appellant was subsequently arrested and charged.
On 8 May 2015, police executed a search warrant at the appellant's residential address. During the search, police officers seized a laptop, which was sent for forensic analysis. The laptop was found to contain two images which were classified as category 1 child exploitation material. The appellant was subsequently arrested, and during an interview with police, he admitted to downloading the images and using them for sexual gratification. The appellant was charged with one count of possession of child exploitation material (count 5 on indictment 963).
Three of the four charges on the s 32 notice related to 0.9 g of cannabis and a plastic smoking implement found during the search of the appellant's residence. The appellant told police that the cannabis and smoking implement were for his personal use. The appellant also told police that he allowed family members and friends to use his residence to smoke cannabis on a regular basis. The remaining charge on the s 32 notice was failing to comply with reporting obligations pursuant to s 29 of the Community Protection (Offender Reporting) Act2004 (WA). The appellant has been registered on the national child offenders system since March 2006. On 11 March 2015, the appellant activated an iCloud account and an email account to access it but did not report that he had done so to the Sex Offender Management Squad until 21 March 2015, outside the required seven day period under that Act.
The sentencing remarks
The sentencing judge observed that the offences spanned a period of almost five years and involved a number of aggravating features. His Honour found that an aggravating feature of the offence of possessing child exploitation material was the large amount of material involved, much of it considerably depraved. In relation to the charges of indecently recording and indecently dealing with J, an aggravating feature was the considerable age discrepancy between the appellant and the victim. An aggravating feature of the indecent dealing in the Coles Supermarket was the very young age of the victim and the offending was also of a brazen nature.
The appellant was 48 years old at the time of sentencing, single with no dependents. His early years and upbringing were described by the sentencing judge as 'unremarkable'. He had married at the age of 21 to a woman who had four children. They separated four years later when it was discovered that he had sexually offended against two of the children.
The appellant had a history of working after leaving school, including in service stations and the hospitality industry, although there were some significant gaps in his work history. He had a long history of cannabis use.
The sentencing judge referred to what he described as the appellant's 'significant and troubling record of offending', beginning with stealing offences in 1985 and 1992, and followed by offences of cannabis cultivation and possession of a smoking implement in 1994.
His Honour noted that the appellant's record of sexual offending began in April 1998 when he was convicted of an offence of evil designs and fined $300 for peering over a toilet or change room stall to look at a young boy. In December 1998, the appellant was convicted of five counts of indecent dealing with a child under 13 years of age, four counts of sexual penetration without consent, and four counts of aggravated sexual penetration without consent. He was sentenced to a total effective term of 7 years and 6 months' imprisonment.
In July 2000, the appellant was convicted of three counts of indecent dealing with a child under the age of 13 and sentenced to a total effective term of 18 months' imprisonment.
In September 2004, the appellant was convicted of two further offences of indecent dealing with a child under 13 years of age and sentenced to 12 months' imprisonment. One of those offences apparently involved touching a boy on the bottom at a Kmart store.
In March and July 2013, the appellant had committed the same four offences as those on the s 32 notice before the sentencing judge and had been fined for those offences.
The sentencing judge noted that the appellant had twice undergone intensive sex offender treatment. His Honour observed that the psychological reports before him were handicapped by the fact that the authors were not aware of the full extent of the appellant's offending. However, one psychologist who was aware only of the indecent dealing offence that had occurred in a Coles Supermarket (indictment 457) considered that the appellant fell into the high risk category of offending. The sentencing judge found that the appellant was at a high risk of sexual reoffending against children.
The only mitigating factor was the appellant's pleas of guilty for which his Honour allowed a deduction of 25% pursuant to s 9AA of the Sentencing Act. His Honour did not accept that there was any true remorse and considered that all of the offending on the indictments and the s 32 notice was characteristic of the appellant. He considered that retribution, deterrence and the protection of society were important factors in sentencing the appellant, the protection of society being particularly important in light of the appellant's continuing attitude of disobedience to the law.
His Honour sentenced the appellant as follows:
On indictment 457:
Count
Particulars of each offence
Maximum penalty
Sentence imposed
1
Indecently dealing with a child under the age of 13 years
10 years' imprisonment
1 year 8 months' imprisonment (head sentence)
On indictment 963:
Count
Particulars of each offence
Maximum penalty
Sentence imposed
1
Indecently recording a child of or over the age of 13 years and under the age of 16 years
7 years' imprisonment
1 year 4 months' imprisonment (concurrent)
2
Indecently recording a child of or over the age of 13 years and under the age of 16 years
7 years' imprisonment
1 year 4 months' imprisonment (cumulative)
3
Indecently dealing with a child of or over the age of 13 years and under the age of 16 years
7 years' imprisonment
1 year 4 months' imprisonment (cumulative)
4
Possession of child exploitation material
7 years' imprisonment
1 year 8 months' imprisonment (cumulative)
5
Possession of child exploitation material
7 years' imprisonment
1 month's imprisonment (concurrent)
On the s 32 notice:
Charge
Particulars of each offence
Maximum penalty
Sentence imposed
1
Failing to comply with reporting obligations
5 years' imprisonment
4 months' imprisonment (concurrent)
2
Possession of a prohibited drug
2 years' imprisonment or a fine of $2,000 or both
$100 fine
3
Possession of drug paraphernalia in or on which there was a prohibited drug or plant
3 years' imprisonment or a fine of $36,000 or both
$300 fine
4
As owner or lessee, permitting premises to be used for the use of a prohibited drug or plant
3 years' imprisonment or a fine of $3,000 or both
2 months' imprisonment (concurrent)
The total effective sentence was therefore 6 years' imprisonment. His Honour ordered that it was to commence as from 14 July 2015 and he made the appellant eligible for parole.
The grounds of appeal
There were three grounds of appeal, which can be sufficiently summarised as follows:
1.The individual sentences imposed on indictment 457 of 2015 and count 3 on indictment 963 of 2015 were manifestly excessive;
2.The learned sentencing judge erred in imposing cumulative sentences for counts 2 and 3 on indictment 963 insofar as the 'one transaction rule' warranted a greater degree of concurrency than the learned sentencing judge allowed; and
3.The total effective sentence infringed the first limb of the totality principle.
On 25 April 2016, leave to appeal was granted on ground 3. The appellant's application for leave to appeal on grounds 1 and 2 was referred to the hearing of the appeal.
The disposition of the appeal
On the hearing of the appeal, counsel for the appellant acknowledged that the critical issue on the appeal was ground 3. If the total effective sentence did not infringe the totality principle, for practical purposes it would not matter whether the sentencing judge had erred in the manner alleged in grounds 1 and 2. It is therefore convenient to turn at once to ground 3.
The first limb of the totality principle requires the total effective sentence imposed in respect of a number of offences to bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Roffey v The State of Western Australia [2007] WASCA 246 [24].
A contention that a sentencing judge infringed the totality principle involves an allegation that error is to be inferred from the result. In such a case, it is necessary to show that the sentence was so unreasonable or unjust that the appellate court is compelled to the conclusion that, although no express error has been identified, a substantial wrong has nevertheless occurred: House v The King [1936] HCA 40; (1936) 55 CLR 499, 505; Wilson v The State of Western Australia [2010] WASCA 82 [2].
Whether or not a sentence infringes the totality principle must depend upon the particular facts and circumstances of the case and in considering the sentences imposed in other cases it must be borne in mind that there will often be significant differences in the circumstances of the offending and the offenders. That is particularly so in relation to offences of the present kind where the nature and circumstances of the offending are likely to vary greatly. However, recognising the limitations inherent in doing so, it is necessary to have regard to sentences imposed in other cases for offending of a similar nature in an endeavour to achieve broad consistency in sentencing.
In support of his contention that the sentence infringed the totality principle, counsel for the appellant referred to Downie v The State of Western Australia [2013] WASCA 244, in which the offender had pleaded guilty to 24 sexual offences contained in two indictments. The offences involved nine counts of sexually penetrating a child of or over the age of 13 and under the age of 16; 13 counts of indecently dealing with a child of or over the age of 13 and under the age of 16; one count of possessing child exploitation material; and one count of distributing child exploitation material. The offences were described as highly premeditated and to have involved planning and grooming. The offender had no prior criminal history. A psychological report assessed the offender as being at a medium to high risk of reoffending. The offender was sentenced to a total effective sentence of 7 years' imprisonment. An appeal against sentence was dismissed.
While the offender in that case had no prior criminal record, the offending was undoubtedly much more serious.
We have also had regard to a number of other cases. They include KWJW v The State of Western Australia [2010] WASCA 29; HFMv The State of Western Australia [2012] WASCA 217; Schriever v The State of Western Australia [2008] WASCA 133; Gavenlockv The State of Western Australia [2014] WASCA 36 and D'Rozariov The State of Western Australia [2015] WASCA 171.
In KWJW, the offender, a man aged between 39 and 40 years, committed a total of 11 offences, being four counts of sexual penetration of a child; three counts of indecent dealing with a child; two counts of indecently procuring a child to deal with the offender; and two counts of indecently dealing with a child under his supervision. The victim was aged between 13 and 14 years. The offender was a close childhood friend of the child's father and had built a trusting relationship with the child. The offending occurred over a 10‑month period. It was accepted, however, that the counts were part of an ongoing course of conduct and there were many more instances of offences of a like nature. The offender pleaded guilty at the first opportunity. An appeal against a total effective sentence of 7 years' imprisonment was dismissed.
In HFM, the offender pleaded guilty to eight counts of indecent dealing with a child under 13 years of age and two counts of sexual penetration of a child under 13 years of age. The victim was the stepdaughter of the offender's son. The offences occurred when the victim was aged between five and 12 years of age, in five separate incidents. Seven of the indecent dealing offences involved rubbing the victim's vagina or clitoris and one involved removing the victim's clothes and staring at her vagina. One of the sexual penetration offences involved the offender performing cunnilingus on the victim and the other involved digital penetration of her vagina. The offender had no prior convictions. An appeal against a total effective sentence of 6 years' imprisonment was upheld and a sentence of 4 years' imprisonment imposed.
In Schriever, the offender pleaded guilty to seven counts of indecent dealing with a child under the age of 13 years and two counts of sexual penetration of a child under the age of 13 years. The offences involved two siblings, L, who was between five and eight years of age when the offending occurred, and J, who was 10 or 11 years of age. The offender was the de facto partner of the victims' aunt. Five of the counts of indecent dealing involved touching L's vagina with his hand; one count of sexual penetration involved penetrating L's vagina with his tongue; one count of indecent dealing involved touching J's penis and scrotum and one involved masturbating J's penis with his hand; and the other count of sexual penetration involved performing fellatio on J. The offender posed a low to moderate risk of reoffending. On appeal, a total effective sentence of 4 years and 8 months' imprisonment was reduced to 4 years and 2 months' imprisonment as the sentencing judge had failed to make any discount for the fact that the offender had made a voluntary disclosure of one offence that would not otherwise have come to light, but the appeal against sentence was otherwise dismissed.
In Gavenlock, the offender was convicted after trial of three counts of indecent dealing with a child between 13 and 16 years of age and two counts of sexually penetrating a child between 13 and 16 years of age. The offender, who was 21 or 22 years of age at the time of the offending, was a friend of the victim's father and a regular visitor to the victim's home. The three counts of indecent dealing occurred on one occasion when the offender and the victim were watching television. The offender put his hand down the victim's track pants and rubbed her vagina. He then took the victim's hand and placed it on his penis on the outside of his pants. She removed her hand but he grabbed it and placed it back on his penis over his underpants and moved her hand up and down. One count of sexual penetration occurred when the offender woke the victim from her sleep, lay on top of her, pulled her shorts and underwear to the side and penetrated her vagina with his penis. The other count occurred when the victim woke to find the offender in her bed. The offender penetrated her vagina with his fingers. The offender had no relevant prior record and was assessed as being at a low risk of reoffending. An appeal against a total effective sentence of 4 years and 6 months' imprisonment was allowed and a sentence of 3 years' imprisonment imposed.
Finally, in D'Rozario, the offender pleaded guilty to one count of using electronic communication with intent to procure a person under 16 years of age to engage in sexual activity; four counts of sexual penetration of a child of or over 13 years of age and under 16 years of age; and one count of possession of child exploitation material. There were also eleven counts of failing to comply with reporting requirements. Count one involved telephone and text sex between the offender and the victim, initiated by the offender. The four counts of sexual penetration involved digital penetration and cunnilingus, and were representative counts. The count of possession of child exploitation material involved possession by the offender of photographs of the victim naked. The offender had prior convictions for using electronic communication with intent to procure a person the offender believed to be under 13 years of age to engage in sexual activity; using electronic communication with intent to expose a person the offender believed to be under 16 years of age to indecent material; and for possession of child exploitation material, for which offences he had been sentenced to 27 months' imprisonment. An appeal against a total effective sentence of 5 years' imprisonment was dismissed.
In none of those cases is the offending closely analogous to the offending in this case and our own research has not revealed a case that is. Nevertheless what does emerge from a consideration of the cases is that the total effective sentence in this case is substantially greater than sentences that have been imposed for much more serious offending.
It is, of course, a significant factor that the appellant has been previously convicted of offending of a similar nature to the present offences and has served three terms of imprisonment for such offending. He has also been assessed as being at a high risk of reoffending. While the appellant is not to be punished again for his prior offending, it is apparent that the issue of personal deterrence assumes particular importance in this case.
Nevertheless, having regard to the circumstances of the offending, the personal circumstances of the appellant, and the outcomes in comparable cases, we consider that the total effective sentence of 6 years' imprisonment was so severe as to fail to bear a proper relationship to the overall criminality involved in all of the offences. We would uphold ground 3, allow the appeal and set aside the sentence imposed by the sentencing judge.
It is unnecessary to consider grounds 1 and 2.
Resentencing
The court has before it the materials necessary to resentence the appellant and it is appropriate that it do so. Having regard to the various matters set out above, we would sentence the appellant as follows.
We would allow the discount of 25% pursuant to s 9AA of the Sentencing Act granted by the sentencing judge. Solely for totality purposes, we would substitute a sentence of 12 months' imprisonment on count 4 on indictment 963 in place of the 1 year and 8 months' imprisonment imposed by the sentencing judge, and order that the sentences on counts 2 and 3 on indictment 963 be served concurrently with each other rather than cumulatively upon one another. We would not otherwise interfere with the individual sentences imposed by the sentencing judge or with his Honour's orders for cumulation and concurrency.
The total effective sentence would therefore be 4 years' imprisonment. The sentence would commence from 14 July 2015 and the appellant would be eligible for parole.
Orders
1.The appeal is allowed.
2.The sentence of 1 year 8 months' imprisonment on count 4 of District Court Indictment 963 of 2015 (indictment 963) is set aside and a sentence of 12 months' imprisonment is substituted.
3.The orders for concurrency and cumulacy in relation to the counts on indictment 963 of 2015 are set aside.
4.The individual sentence for count 4 on indictment 963 is to be served cumulatively on the sentence for District Court indictment 457 of 2015 (indictment 457).
5.Each of the individual sentences for counts 2 and 3 on indictment 963 are to be served concurrently with each other but cumulatively on the sentence for indictment 457 of 2015 and the sentence for count 4 on indictment 963.
6.The individual sentences for counts 1 and 5 on indictment 963 are to be served concurrently with each other and concurrently with the sentences for all other counts on indictment 963 and indictment 457.
7.The sentence imposed for indictment 457 is taken to have commenced on 14 July 2015.
8.The appellant remains eligible for parole.
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