Shelley v The State of Western Australia
[2014] WASCA 154
•27 AUGUST 2014
SHELLEY -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 154
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 154 | |
| THE COURT OF APPEAL (WA) | 27/08/2014 | ||
| Case No: | CACR:103/2014 | 6 AUGUST 2014 | |
| Coram: | MARTIN CJ MAZZA JA HALL J | 8/08/14 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Appellant resentenced | ||
| B | |||
| PDF Version |
| Parties: | TOBIAS SHELLEY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Possession of child exploitation material Whether express errors of fact affected outcome Whether sentence manifestly excessive Recognition of mitigating factors of cooperation with authorities and rehabilitation Turns on its own facts |
Legislation: | Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA), s 60(4) Criminal Code (WA), s 220 Sentencing Act 1995 (WA), s 9AA |
Case References: | Collins v The State of Western Australia [2007] WASCA 108 Fernandes v The State of Western Australia [2009] WASCA 227 Hill v The State of Western Australia [2009] WASCA 4 R v Oliver [2003] 2 Cr App R (S) 15 Smit v The State of Western Australia [2011] WASCA 124 Wilson v The State of Western Australia [2010] WASCA 82 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SHELLEY -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 154 CORAM : MARTIN CJ
- MAZZA JA
HALL J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : SCOTT DCJ
File No : IND 1464 of 2013
Catchwords:
Criminal law - Appeal against sentence - Possession of child exploitation material - Whether express errors of fact affected outcome - Whether sentence manifestly excessive - Recognition of mitigating factors of cooperation with authorities and rehabilitation - Turns on its own facts
Legislation:
Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA), s 60(4)
Criminal Code (WA), s 220
Sentencing Act 1995 (WA), s 9AA
Result:
Appeal allowed
Appellant resentenced
Category: B
Representation:
Counsel:
Appellant : Ms K J Farley SC & Ms N Sinton
Defendant : Ms A C Longden
Solicitors:
Appellant : Legal Aid (WA)
Defendant : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Collins v The State of Western Australia [2007] WASCA 108
Fernandes v The State of Western Australia [2009] WASCA 227
Hill v The State of Western Australia [2009] WASCA 4
R v Oliver [2003] 2 Cr App R (S) 15
Smit v The State of Western Australia [2011] WASCA 124
Wilson v The State of Western Australia [2010] WASCA 82
1 REASONS OF THE COURT: This appeal against sentence was heard on 6 August 2014. On 8 August 2014, the following orders were made:
1. The application for an extension of time to appeal is granted.
2. Leave to appeal on grounds 2 and 3 is granted.
3. The appeal is allowed.
4. The sentence imposed by Scott DCJ is set aside.
5. The appellant is resentenced to 11 months' imprisonment commencing from 8 August 2014, conditionally suspended for 12 months with supervision and programme requirements.
2 These are our reasons for those orders.
3 The appellant was convicted on his fast-track plea of guilty with one count of possession of child exploitation material, contrary to s 220 of the Criminal Code (WA). The maximum penalty for this offence is 7 years' imprisonment. On 25 March 2014, the learned sentencing judge sentenced the appellant to 16 months' imprisonment with eligibility for parole.
4 There are three grounds of appeal. Ground 1 alleges that his Honour erred in fact by finding that two psychologists had assessed the appellant as being at a moderate risk of reoffending, when, in fact, both experts assessed the appellant as being at a low risk of reoffending. Leave to appeal was granted in relation to this ground. Grounds 2 and 3 allege implied error. In substance, they allege that the sentence imposed was manifestly excessive in that the term of imprisonment imposed should have been suspended (ground 2). Alternatively, if an immediate term of imprisonment was appropriate, 16 months was too long (ground 3). The question of leave to appeal with respect to grounds 2 and 3 was referred to the hearing of the appeal.
The facts
5 The appellant came to the attention of police through his activities on a file-sharing website.
6 On 25 September 2013, the appellant was requested by detectives to attend at the offices of the Online Child Exploitation Squad. Although he was not told what the matter concerned, the appellant believed that the police were enquiring about child exploitation material he had downloaded. He voluntarily attended upon the police, bringing with him his laptop computer. It is not disputed that the appellant had ample opportunity to conceal or destroy his laptop computer prior to going to the police station. The police seized the computer and a later examination of it located child exploitation material.
7 This material comprised images and videos of children aged between 3 and 13 years. The material was summarised as follows: category 1, 50 images; category 2, 19 videos and 40 images; category 3, four videos and one image; category 4, 16 videos; category 5, one video.
8 The categories that were referred to are those derived from the guideline judgment of the Court of Appeal of England and Wales in R v Oliver [2003] 2 Cr App R (S) 15, which are as follows:
1. Images depicting erotic posing with no sexual activity.
2. Sexual activity between children or solo masturbation by a child.
3. Non-penetrative sexual activity between adults and children.
4. Penetrative sexual activity between children and adults.
5. Sadism or bestiality.
9 We pause to note that these classification levels were discussed in the recent case of Smit v The State of Western Australia [2011] WASCA 124. They can only be of marginal assistance to courts involved in imposing or reviewing sentences for offences involving child exploitation material and are not a substitute for the sentencing judge viewing the material or a representative sample of it. In this case, it is clear that his Honour had viewed, at least, a representative sample and was well aware of the actual nature of the material. The prosecutor emphasised the category 4 material and, in particular, one video lasting 34 minutes that shows a child being penetrated by a male adult in various positions. Altogether, the appellant possessed 91 images and 40 videos of child exploitation material.
The video record of interview
10 Among the materials provided to the learned sentencing judge was a recording of the appellant's interview with police on 25 September 2013. The appellant was candid. He told the police:
(a) that the laptop computer was his and that no one else used it;
(b) that he had downloaded from the internet child exploitation material onto the laptop computer;
(c) the name of the website from which he had obtained links to child exploitation websites;
(d) that, although he had had the laptop computer for six months, he had been downloading child exploitation material for three or four years; and
(e) that of the videos he downloaded, he watched the majority of them once and then deleted them, 'Mostly 'cause of shame'.
11 He did not, in any way, try to justify his conduct. He told the police, more than once, 'I'm not trying to defend what I have done', or words to that effect.
12 Without the appellant preserving his laptop computer and making the admissions he did, it is most unlikely he would have been charged.
The appellant's antecedents
13 At the time he was sentenced the appellant was 41 years of age. Like many who commit this offence, he has no prior record of convictions and despite difficulties in his upbringing, excellent antecedents.
14 The appellant has a constant record of employment. At the time of his imprisonment he was working on a fly-in/fly-out basis for a mining company as a compliance training officer.
15 In or about 2008, he migrated from the United Kingdom. As a condition of his visa, he was required to work in a regional area. He commenced work in Mullewa in 2008. He felt that his homosexuality would not be accepted or tolerated in Mullewa and therefore he kept it to himself. He was socially isolated and turned to the internet for sexual gratification to the point of addiction. In time, he came upon child exploitation material. He told the police that initially he was curious about such material, but despite knowing that it was wrong he downloaded material 'every couple of days', finding the process daring and risky. At the same time, he felt ashamed of his actions. He admitted to police that he continued to download material after he left Mullewa (in August 2013).
16 On 3 October 2013, about a week after his arrest, the appellant made contact with a clinical psychologist, seeking professional help to overcome his interest in child exploitation material. This treatment will be described below.
The reports
17 The learned sentencing judge had before him a pre-sentence report dated 24 January 2014, a psychological report by Ms Cinzia Zuin dated 11 January 2014 and a report by a registered psychologist, Ms Janice Paige dated 18 March 2014. She, along with a clinical psychologist, Ms Christabel Chamarette, were the appellant's treating psychologists. The contents of these reports were unchallenged in the sentencing proceedings.
18 It is convenient to begin with Ms Zuin's report. Ms Zuin said that the appellant had 'a realistic, non-complacent attitude around risk factors which is positive from a risk management perspective'. She reported that the appellant understood why viewing child exploitation material was wrong and acknowledged that it was not a victimless crime. She said that the appellant impressed as genuinely remorseful and was empathetic towards his victims. The appellant expressed shame and disgust for his behaviour. She noted that the appellant had availed himself of treatment after his arrest. While acknowledging that determining the risk of reoffending in offences of this type is difficult, she considered that the appellant was 'likely to pose a low risk of reoffending in a like manner'. Based on her experience she thought that the Department of Corrective Services would deem the appellant a low priority for treatment. Accordingly, she recommended that the appellant complete the treatment program he had undertaken.
19 The author of the pre-sentence report referred to Ms Zuin's report and noted that the appellant had engaged in psychological counselling. Under the heading of 'Recommendation' in the pre-sentence report, the author stated that the appellant 'has been assessed as being at moderate risk of reoffending and is considered a suitable candidate for a community based disposition'. The assessment that the author of the pre-sentence report referred to appears to be Ms Zuin's assessment. Of course, she assessed the appellant as being of a low risk of reoffending. It seems that the author of the pre-sentence report was mistaken in the assessment that the appellant was at moderate risk of reoffending. If the author of the pre-sentence report regarded the appellant as being a moderate risk, the reasons for such a conclusion are not evident.
20 Ms Paige noted that between 3 October 2013 and 18 March 2014, the appellant had attended 10 two hour group sessions and 13 one hour individual sessions. He had completed two modules of a four-module sex offender treatment program. The report spoke highly of his progress and his commitment to his therapy. According to Ms Paige, he showed 'genuine remorse for the victims who have suffered as the result of adult demands for this type of deviant stimulation'. She reported that the appellant 'no longer has any desire to use child exploitation material, but does not underestimate the strength of addictive processes and realises that he will need to remain vigilant to his moods, and the triggers and risky situations that he needs to avoid'. Ms Paige assessed the appellant, having regard to the therapy he had undertaken and his progress, as having 'a very low risk of reoffending in the future'.
21 Ms Paige offered a theory as to the origin of the appellant's offending. His Honour expressed some difficulty in accepting this aspect of Ms Paige's report. However, the accuracy of her theory was not an issue which either the parties or the learned sentencing judge regarded as material and did not adversely impact upon his assessment of the appellant's risk of reoffending.
The sentencing remarks
22 Relevantly to ground 1 his Honour said, after referring in some detail to the reports of Ms Zuin and Ms Paige, that:
You've not been convicted of any offence in Australia or England. And you're at moderate risk of reoffending in this way so Ms Paige says, as does Ms Zuin (ts 19). (emphasis added)
23 His Honour, quite properly, referred to the general sentencing principles applicable to offenders who commit offences relating to child exploitation material as described by this court in Hill v The State of Western Australia [2009] WASCA 4, to which we will later refer. His Honour correctly identified the predominant sentencing consideration as general deterrence. He acknowledged the appellant's plea of guilty, giving a discount of 20% in accordance with s 9AA of the Sentencing Act 1995 (WA). He also acknowledged the appellant's favourable subjective circumstances and that he had undertaken rehabilitative treatment. This latter factor, he said, was 'important'.
24 Although the learned sentencing judge said the material that was seized was 'not [of] a significant quantity', he expressed concern at the significant number of videos and the disturbing nature of some of the category 4 material.
25 His Honour rejected defence counsel's submission that a suspended sentence was appropriate, having regard to the 'degree of criminality in this offending'.
General principles
26 The general appellate principles applicable to this case were described by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]. Those principles are well known and accepted. They do not require repetition here.
Ground 1 - Alleged express error
27 The appellant submitted that the learned sentencing judge's statement that Ms Zuin and Ms Paige had assessed the appellant as being at a moderate risk of reoffending was plainly incorrect. As a result, his Honour failed to take into account the mitigating factor that the appellant was at a low risk of reoffending. The appellant submitted that the error was material because it affected, or was capable of affecting, the sentence actually imposed by the learned sentencing judge: Fernandes v The State of Western Australia [2009] WASCA 227 [10].
28 The respondent submitted that, on the face of it, his Honour had made an error, but having regard to all of the circumstances, his Honour's use of the word 'moderate' was no more than a slip of the tongue and that, in fact, his Honour was under no misapprehension that the appellant presented as a low risk of reoffending.
29 It is clear from an examination of the record before the learned sentencing judge that he had carefully read the expert reports and that he understood their contents. He accurately described their features, save for the risk of reoffending. It is beyond dispute that he regarded the reports as mitigatory. Defence counsel, in his plea in mitigation, emphasised the appellant's low risk of reoffending (ts 13), and the matter was not challenged by the prosecutor.
30 His Honour's sentencing remarks were delivered extempore. From time to time slips of the tongue will occur. Whether an error is a slip of the tongue or something more significant is a matter of judgment which depends upon a consideration of all the circumstances. In the present case, it appears to us far more likely that his Honour's use of the word 'moderate' in the context of Ms Zuin's and Ms Paige's assessments of the appellant's risk of reoffending was a slip of the tongue and not a misapprehension of what they had said. It may be that he was thinking of the word 'moderate' because it had been used in the pre-sentence report. In our opinion, it is most unlikely that his Honour misapprehended the appellant's risk of reoffending.
31 Ground 1 has not been made out.
Grounds 2 and 3 - Alleged implied errors
32 It was conceded on behalf of the appellant that in cases involving possession of child exploitation material ordinarily a sentence of immediate imprisonment is the only appropriate disposition. However, the appellant submitted that the present case was sufficiently different to the ordinary case to justify the imposition of a suspended sentence. The appellant sought to justify this submission by relying upon the combined strength of the mitigating factors in the case, focussing upon:
(1) the amount and nature of the material, which was not as great or as depraved as in other cases;
(2) the appellant's rehabilitation, which counsel characterised as 'truly remarkable'; and
(3) his cooperation with the police, emphasising that the appellant had brought his laptop computer with him when he voluntarily went to the police, and then made frank admissions.
33 Counsel for the respondent acknowledged the mitigating factors in the case. She accepted that, so far as rehabilitation and cooperation is concerned, 'this … appellant certainly has done everything he can'. Nevertheless, the circumstances of the case were not such as to justify a suspended sentence or a lesser term of immediate imprisonment.
34 His Honour did not err in his statement of the principles relevant to the imposition of imprisonment, whether to be served immediately or suspended (as to which see Collins v The State of Western Australia [2007] WASCA 108 [12] - [17]). Nor, as we have already mentioned, did he misapprehend the sentencing principles relevant to cases involving child exploitation material. Those principles were described by McLure JA (as her Honour then was) in these terms in Hill:
The recent cases reveal that ordinarily a sentence of immediate imprisonment will be imposed for possession of child pornography contrary to s 60(4) of the Act: Hutchins [23]; The State of Western Australia v Cunningham [2008] WASCA 240. 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].
35 This appeal can only succeed if the appellant persuades this court that the exercise of the discretion not to impose a suspended imprisonment order was unjust or plainly unreasonable. With great respect to the learned sentencing judge, we have been so persuaded.
36 We do not doubt that the decision to impose a term of imprisonment was correct. Although the amount and the nature of the child exploitation material in this case was not as bad as in many other cases, there was nevertheless a reasonably significant number of images and videos. The content of some of this material was, to use his Honour's expression, 'disturbing'. Moreover, the appellant's offending was no momentary lapse. Although he can only be sentenced for the material he had on his laptop computer on the day of his arrest, he admitted downloading similar material over a period of four years.
37 It is common in cases of possession of child exploitation material to see offenders who have good antecedents and are remorseful, with no record of prior offending and low prospects of reoffending. Ordinarily, these factors, either individually or in combination, would be insufficient to justify the imposition of a suspended imprisonment order, although, of course, each case depends upon its own particular facts and circumstances. The present case has features which distinguish it from the ordinary case. Most significantly in our minds is the appellant's level of cooperation. Although this is not a case where the appellant voluntarily handed himself into police and admitted to offences the police would not otherwise have known about, it was not far removed from it. It is true that the appellant had attracted the interest of the police, however, when he was requested to voluntarily attend upon investigators, the police had little to go on. The appellant brought with him his laptop computer, upon which was stored the child exploitation material with which he was later charged. He was not asked to do so, and could very easily have disposed of the laptop computer. Had he done so, it is most unlikely he would have been charged, let alone convicted. The appellant was forthcoming in his interview with the police, particularly as to how long he had been downloading child exploitation material and viewing it. The appellant's actions resulted in the detection of an offence which might well have gone undetected.
38 Further, and consistently with the remorse shown and his cooperation with the police, he voluntarily embarked upon an intensive course of rehabilitation with Ms Paige and Ms Chamarette. The commitment that he showed to this course of rehabilitation was, having regard to other cases seen in this court, exceptional.
39 In the course of argument, two cases were referred to, being Hill and Smit, where the appellants had undertaken counselling and, notwithstanding this factor, terms of immediate imprisonment were upheld. In Hill, the appellant attended 10 sessions of counselling, while in Smit the appellant had attended eight counselling sessions. The present case is distinguishable from both Hill and Smit. In Smit, despite the counselling sessions, the offender still espoused attitudes and beliefs which rationalised and justified his interest in child exploitation material. In Hill, while it appears that the appellant benefitted from the counselling and was not at any real risk of reoffending, a significant factor that weighed against him was that, at the time of the commission of the offences, he was a serving police officer charged with the responsibility of upholding the law.
40 We regard the combination of mitigating factors, particularly his cooperation and rehabilitation, as exceptional and justifying the imposition of a suspended imprisonment order. Accordingly, it was not appropriate for his Honour to order immediate imprisonment.
41 For these reasons, we would give leave to appeal with respect to ground 2 and uphold it.
42 As we stated earlier, ground 3 is an alternative to ground 2. It is, strictly speaking, unnecessary to decide it. However, we observe that the term of 16 months' imprisonment was well within the range of sentences customarily imposed for offences of possession of child exploitation material, even under the now repealed s 60(4) of the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA) which provided for a maximum penalty of 5 years' imprisonment rather than the maximum of 7 years' imprisonment now provided for under s 220 of the Criminal Code: see Smit [20] - [21]. We do not regard the length of the term of imprisonment as being manifestly excessive. Ground 3 should be dismissed.
Resentencing
43 It is appropriate to impose a conditional suspended imprisonment order with supervision and programme conditions in order to provide the appellant with assistance in his rehabilitation and to deal with some of the personal issues raised in the reports. As to the length of the term of imprisonment, the appellant has served approximately 4 1/2 months in prison. In order to take account of time served, the length of the term is 11 months.
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