Singh v The Queen
[2021] WASCA 135
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SINGH -v- THE QUEEN [2021] WASCA 135
CORAM: BUSS P
MAZZA JA
HEARD: 18 MARCH 2021 & SUPPLEMENTARY SUBMISSIONS 30 APRIL 2021
DELIVERED : 30 JULY 2021
FILE NO/S: CACR 155 of 2020
BETWEEN: AMANDEEP SINGH
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: HERRON DCJ
File Number : IND 870 of 2020
Catchwords:
Criminal law - Application for extension of time to appeal - Application for leave to appeal against sentence - Appellant convicted of one count of using a carriage service in a way that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive, and which involved the transmission, publication and distribution of private sexual material, contrary to s 474.17A(1) of the Criminal Code (Cth) - Appellant sent sexually explicit images to victim's family and uploaded them to online pornographic website - Whether sentencing judge erred in failing to take into account certain matters - Whether there were errors of fact in primary proceedings - Whether the sentence imposed was manifestly excessive as to type and length
Legislation:
Crimes Act 1914 (Cth), s 16A
Criminal Appeals Act 2004 (WA), s 31(4)
Criminal Code Act 1995 (Cth), s 474.17A(1)
Enhancing Online Safety (Non-Consensual Sharing of Intimate Images) Act 2018 (Cth)
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (Cth) |
Case(s) referred to in decision(s):
JUDGMENT OF THE COURT:
This is an application for leave, out of time, to appeal against sentence. The application was filed about one month out of time. Thus, the appellant requires an extension of time to appeal.
The appellant was convicted on his plea of guilty, of one count on an indictment, that between 6 December 2019 and 22 December 2019, he used a carriage service in a way that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive, and which involved the transmission, publication and distribution of private sexual material, contrary to s 474.17A(1) of the Criminal Code (Cth). On 28 August 2020, the appellant was sentenced by Herron DCJ to 20 months' immediate imprisonment commencing on that date, to be released after serving 10 months and entering into a recognisance to be of good behaviour for the remaining term, with an undertaking in the sum of $5,000.[1]
[1] ts 44.
The facts
The sentencing judge made detailed factual findings about the appellant's offending,[2] which we summarise as follows.
[2] ts 35 - 37.
The victim was, at all material times, a flight attendant who worked for an international airline that operated into and out of Perth.
In 2016, the appellant took a flight on which the victim was working. During the flight, the appellant and the victim exchanged personal details and, afterwards, remained in contact. The appellant, falsely, told the victim that he was not married.
From about September 2016 until late 2019, the appellant and the victim were in a sexual relationship and saw each other as circumstances permitted. During the relationship, the appellant and the victim maintained regular online contact.
In about February 2018, the victim became aware that the appellant was married. The relationship between the appellant and the victim continued, but by November 2019 had begun to break down.
In early December 2019, the appellant led his wife to believe that he had ended the relationship with the victim. However, from the appellant's point of view, the relationship remained intact. On 5 December 2019, the appellant and the victim had a video conversation which, unbeknown to them, was being monitored by the appellant's wife. The appellant's wife told him that she had listened to the conversation. Subsequently, she and the victim spoke with each other. The appellant then repeatedly contacted the victim, asking her not to tell his wife anything.
On the night of 5 December 2019, the appellant sent a WhatsApp message to the victim, threatening her. On 6 December 2019, the appellant left abusive messages for the victim, threatening her and others in her family. He also threatened to send photographs of the appellant and the victim having sex to the victim's brother. Later that day, the appellant made good on his threats and sent the victim's brother material which showed the appellant and the victim engaging in sexual activity. The appellant sent a screenshot from this material to the victim. The victim then called the appellant's wife and told her what the appellant had done. The appellant's wife and his father, who was also on the telephone, did not believe the victim. The victim then sent the screenshot to the appellant's wife and father.
The appellant then repeatedly sent messages to the victim via WhatsApp, abusing and threatening her and telling her that he would ruin her. The victim blocked the appellant's WhatsApp communications. The appellant also repeatedly called the victim, threatening to send further compromising photographs to her brother, her place of work and her sister‑in‑law.
On 21 December 2019, the appellant attempted to call and message the victim using his wife's telephone. Later that day, the appellant sent to the victim's father the same private sexual material he had transmitted on 6 December 2019. The appellant sent to the victim screenshots of what he had done. The appellant then uploaded the same material to a public online pornographic website, along with the victim's personal identity documents, showing her full name and personal details. The appellant also uploaded photographs of the victim with her family and in her work uniform. The appellant sent to the victim and her brother screenshots of what he had done. Over the course of 21 December 2019, the appellant repeatedly sent abusive messages to the victim about her and her family.
Further, on 21 December 2019, the appellant also made an online complaint to the victim's employer, falsely alleging that she had prostituted herself, was blackmailing him and had taken his credit cards. He then sent screenshots to the victim of this complaint.
On 22 December 2019, Australian Federal Police officers executed a search warrant at the appellant's home. At the time, the appellant was elsewhere. However, he became aware that the police were looking for him. On his way home, he performed a factory reset of his mobile telephone and left the phone with a friend. He also took the SIM card from the device and threw it away. After he met with police, he offered to take them to retrieve the phone and SIM card. Although the mobile telephone was located, the SIM card was not.
On 23 December 2019, the appellant participated in a video‑recorded interview with AFP officers and admitted the offending. He told the officers that when he found out that his wife had listened to his conversation with the victim on 5 December 2019, he 'lost it'.
The appellant said that the day after he had uploaded the material onto the online pornographic website, he changed the settings to 'private' so that it could no longer be seen by members of the public.
The appellant's personal circumstances
At the time of sentencing the appellant was 36 years of age. He was born and raised in India. He emigrated to Australia in 2004 and is an Australian citizen. He and his wife have two young children.[3]
[3] ts 39.
Since graduating from university, the appellant has been continuously employed. At the time of the offending, the appellant was employed as a detention service officer with a private security contractor. Shortly after he was charged, the appellant resigned his employment and purchased a pizza franchise, which he owned and operated until his sentencing.[4]
[4] ts 40.
The appellant does not use illicit drugs and is only an occasional social drinker of alcohol. He is in good physical and mental health.[5] Prior to being sentenced, the appellant had sought help from a psychologist.
[5] ts 40.
The appellant has no prior criminal history and the sentencing judge was provided with a number of character references which spoke well of the appellant. The appellant's wife provided the sentencing judge with a letter of support, acknowledging that she and the appellant were living separately under the one roof and were in the process of divorcing.[6]
[6] ts 42.
Some aspects of the sentencing proceedings
The appellant was arraigned and entered his plea of guilty on 14 August 2020. The appellant's sentencing was adjourned to 28 August 2020 to enable the prosecution to make inquiries about the contents of an email which had been purportedly sent by the victim to the appellant's father (the email). It was thought that the contents of the email may have contradicted some of the factual matters that were contained in the prosecution's statement of material facts and the victim's signed witness statement.[7]
[7] ts 9.
Prior to the resumption of the sentencing proceedings, a statement dated 24 August 2020, written by Federal Agent Ashleigh Bristow was provided to the sentencing judge and defence counsel. It appears from Agent Bristow's statement that, on 19 August 2020, she spoke to the victim about the email. In relation to the email, the victim:
(a)Confirmed that she had sent it.
(b)Said she sent the email because she wanted 'this all to be over' so that she 'can move on with her life'.
(c)Said she felt responsible for the appellant facing possible imprisonment.
(d)Said she felt that if the appellant went to prison there would be repercussions for her and her family in her country of origin.
(e)Referred to a portion of the email where she said that, on 5 December 2019, she showed the appellant's wife 'our personal pictures and videos'. The victim explained that this did not refer to any sexual material. Rather, it referred to pictures and videos taken on holidays by her and the appellant.
(f)Said she told the appellant that she had told his wife 'everything' and suspects this is what he responded to, thinking she had sent his wife images of the two having sex.
(g)Believes that the appellant's wife 'provoked' the appellant to act in the way that he did.
At the sentencing proceedings on 28 August 2020, the prosecutor read the statement of material facts to the sentencing judge.[8] The statement of material facts did not explicitly allege that the private sexual material the appellant sent to the victim's brother on 6 December 2019 and to her father on 21 December 2019 included videos. Nor did the prosecutor allege that the appellant uploaded videos to the online pornographic website she referred to.
[8] ts 18 - 22.
Defence counsel began his plea in mitigation by admitting the facts that had been read by the prosecutor, subject to 'an explanation to follow after I address some other matters'.[9] In the plea in mitigation, defence counsel emphasised the appellant's remorse and the realisation of 'just how much harm he did to the complainant'.[10] Defence counsel referred to the email and said that it indicated the victim 'doesn't bear a grudge'.[11] Defence counsel acknowledged that the appellant's conduct had exposed the victim to harm in her employment.
[9] ts 23.
[10] ts 23.
[11] ts 23.
With respect to the email, the sentencing judge told defence counsel that he did not read it as meaning that the victim had forgiven the appellant, but, rather, that she did not want to be reminded of what had occurred and wanted to move on. Defence counsel agreed with his Honour's statement.[12]
[12] ts 24.
In the course of further submissions by defence counsel, his Honour said that he had viewed the material which the Crown alleged had been forwarded by the appellant to the victim's brother and father.[13]
[13] ts 28.
In her sentencing submissions, the prosecutor accepted that it was apparent from the victim's witness statement, her victim impact statement and the email that the impact of the offending on her had somewhat diminished over time.[14]
[14] ts 32.
After the prosecutor completed her sentencing submissions, defence counsel rose to ask what he described as a 'probably unusual' question, being whether the prosecution could pinpoint a date 'when the complainant, whether inadvertently or not, showed images of the sexual conduct to [the appellant's] wife?'.[15] The sentencing judge observed that the matter did not appear 'particularly relevant'.[16] Defence counsel did not attempt to take the matter any further. We note that, according to Agent Bristow's statement as summarised at [21] above, the victim had said that the pictures and videos were of a non‑sexual nature.
[15] ts 33.
[16] ts 34.
Immediately before his Honour delivered his sentencing remarks, defence counsel again confirmed that the appellant accepted the facts as read by the prosecutor.[17]
[17] ts 34.
Impact on the victim
The sentencing judge had before him a victim impact statement, dated 26 May 2020, and the victim's police statement, dated 21 January 2020. In the latter document, the victim said the events left her feeling depressed and alone and unable to trust men. She said her reputation in her home country has been damaged, as has her relationship with her family.[18] In her victim impact statement, the victim asked his Honour to consider the pain she had been through, but said, 'I have come to my peace thinking [the appellant] was never a bad person'.
[18] ts 42.
The sentencing remarks
In his sentencing remarks, his Honour noted the following serious features of the appellant's offending:[19]
(a)The appellant sent 'deeply offensive private sexual material' involving the appellant and the victim to the victim's brother and father.
(b)The appellant's actions were intended to cause the victim 'distress, humiliation, embarrassment and outrage' and 'to offend [the victim's] family', as well as 'to punish [the victim]'.
(c)The appellant also sent the victim 'deeply offensive messages', including material which alleged that the victim was involved in prostitution. The appellant sent this material to the victim's employer.
(d)The appellant's behaviour in sending the victim threatening, abusive and offensive messages was persistent.
(e)The appellant published the offensive material on a public online pornographic website, as well as personal details which identified the victim.
(f)The appellant spoke to the victim's father, telling him that the victim was a prostitute.
(g)In sending the private sexual material to the victim's father and brother, the appellant intended to humiliate the victim and damage her relationship with her family, which he knew was deeply conservative.
(h)The appellant sought to damage the victim's relationship with her employer and cause her to lose her job.
[19] ts 38 - 39.
The sentencing judge characterised the offending as 'planned and vicious, designed to cause the maximum amount of humiliation and distress to [the victim]' and to punish her.[20] His Honour described the offending as a form of domestic violence through which the appellant sought to punish and control the victim. When he was unable to do so he sought to cause her hurt and humiliation.[21]
[20] ts 38.
[21] ts 38 - 39.
His Honour said that he regarded the appellant's offending as a serious example of its type.[22] In doing so, he observed that the offending involved a breach of trust, in that the victim trusted the appellant to keep the material which he distributed private.
[22] ts 39.
The sentencing judge acknowledged that the appellant did not minimise the seriousness of what he had done and he expressed understanding of the consequences to the victim of his offending.[23]
[23] ts 38.
His Honour acknowledged, as mitigating factors:
(a)The appellant pleaded guilty at the first reasonable opportunity.[24]
(b)He cooperated with police and admitted his offending.
(c)The appellant had no criminal or traffic record and was otherwise a person of good character.
(d)He was genuinely remorseful. Relevantly, his Honour noted that the appellant had written a letter of apology to the victim and, although it had not been sent to her because of the protective bail conditions imposed upon him, he accepted responsibility for what he had done.[25]
(e)Having regard to protective factors such as stable accommodation and a supportive family, the appellant's risk of reoffending was reduced.[26]
[24] ts 39.
[25] ts 43.
[26] ts 41.
His Honour observed that general deterrence was 'perhaps the most important sentencing consideration'.[27] As a consequence, matters personal to the appellant, while not irrelevant, 'assume less weight than might otherwise be the case'.[28] While acknowledging that the appellant's risk of reoffending was reduced, personal deterrence was a relevant sentencing consideration.
[27] ts 43.
[28] ts 43.
The sentencing judge considered, but ultimately rejected, defence counsel's submissions that, while a sentence of imprisonment was appropriate, the appellant could be released forthwith upon entering into a recognisance to be of good behaviour.[29] His Honour found that the seriousness of the offending, along with the need for personal and general deterrence, required that the appellant be sentenced to an immediate term of imprisonment. He then imposed the sentence referred to in [2] of these reasons.
[29] ts 43 - 44.
The appellant's complaints
The appellant is a litigant in person and his grounds of appeal reflect this fact. They allege a number of errors and omissions as miscarriages of justice. The grounds do not expressly allege that the sentence was manifestly excessive but in fairness to him, we will consider this issue.
Having regard to the appellant's case and the appellant's oral submissions, he complains that:
(a)the sentencing judge failed to take into account that the appellant's actions in sending the private sexual material were 'provoked' by the victim sending such material to the appellant's wife;
(b)his Honour failed to ask for all of the emails that the victim had sent to the appellant and members of his family prior to his sentencing;
(c)the sentencing judge erred by finding that the appellant sent to the victim's brother and father videos of the appellant and the victim engaging in sexual activity, when in fact he sent only still images; and
(d)his Honour failed to take into account the effect that immediate imprisonment would have on the appellant's family responsibilities to his aged parents and his ability to service the debt on his business.
In addition to the alleged errors and omissions, the appellant alleges a number of miscarriages of justice, being that:
(a)the AFP failed to examine the victim's mobile telephone until one month after the commission of the alleged offence;
(b)Agent Bristow's statement of 24 August 2020 was wrong or misleading in a number of respects; and
(c)defence counsel made statements in the course of the sentencing proceedings that were wrong.
Merit of the appeal
For the reasons that follow, we are of the opinion that, apart from the complaint referred to at [38(c)] above, none of the complaints made by the appellant and summarised at [38] and [39] above have been established.
The appellant's contention that the victim transmitted private sexual material to the appellant's wife and that conduct by the victim reduced the criminality of the appellant's actions is not established on the evidence that was before the sentencing judge.
The question of whether the victim had transmitted private sexual material to the appellant's wife was investigated by Agent Bristow. According to her statement of 24 August 2020, the victim admitted that she had sent pictures and videos to the appellant's wife that did not constitute private sexual material. Defence counsel did not seek to contradict the contents of the statement made by Agent Bristow and did not submit that the appellant's criminality was reduced as the result of the victim's conduct.
His Honour was aware that the victim had sent to the appellant's wife a screenshot of the private sexual material which the appellant had sent to the victim's brother. This was done by the victim because the appellant's wife and father apparently did not believe her when she told them what the appellant had done. In this context, the victim's conduct is understandable. The victim's conduct did not 'provoke' the appellant's actions and her conduct did not reduce the criminality of the appellant's actions.
The appellant complains that the sentencing judge did not take into account 'other emails' sent by the victim to the appellant during the period of the offending. The appellant does not identify the emails with any precision and has not sought to put them before this court. If the emails exist, their content, and thereby their relevance, is unknown.
As to the contention that his Honour erred by finding that the appellant sent videos as well as pictures to the victim's family, we have examined the private sexual material viewed by the sentencing judge. The material does not include videos, but it does contain a number of JPEG images which depict the victim engaging in sexual activity with the appellant.
His Honour did state in his sentencing remarks that the appellant transmitted private sexual material to the victim's family in the form of videos and images.[30] The reference to videos is erroneous. However, in our opinion, it was not a material error as it is not an error which was capable of affecting the sentence imposed. In any event, we are of the opinion that no different sentence should have been imposed. See s 31(4) of the Criminal Appeals Act2004 (WA). This is because the content of the transmitted material was, in substance, the same, regardless of its form. Further, whatever its form, the material was transmitted to the victim's family for the purposes referred to by the sentencing judge.
[30] ts 36.
The appellant complained that his lawyer accepted 'things' that he did not agree with. Exactly what these 'things' were is unclear. As we have already indicated, defence counsel accepted the facts as alleged by the prosecutor. This appears to have been based on instructions and was consistent with the appellant's whole approach to the sentencing, which was to impress upon the sentencing judge that the appellant was truly remorseful for what he had done.
The appellant has not established that, on the evidence before the sentencing judge or on the admissible evidence before this court, defence counsel made statements in the course of the sentencing proceedings that were wrong.
The appellant's complaint that the AFP failed to examine the victim's mobile telephone until one month after the commission of the offence does not indicate that a miscarriage of justice has occurred. The appellant has not established that, on the evidence before the sentencing judge or on the admissible evidence before this court, his sentencing was unfair or miscarried because of any delay by the AFP in examining the victim's mobile telephone.
The appellant's assertions that Agent Bristow's statement of 24 August 2020 contained false representations are unfounded. Such assertions, unsupported by evidence, are a wholly insufficient basis to impugn the sentence that was imposed by his Honour.
There is no merit to the appellant's complaint that his Honour failed to consider the appellant's personal circumstances. The sentencing judge was well aware of the appellant's personal background and that he had bought a pizza franchise and had incurred a debt in connection with the acquisition. No particular point was made in mitigation about the appellant's responsibilities towards his parents, but it was clear from the character references that he has a close and caring relationship with his parents.
It is an inevitable consequence of imprisonment that family members who are close to an offender and may be economically dependent upon them will suffer as a result of the offender's incarceration. Ordinarily, such matters are not mitigatory. There was nothing before his Honour or this court to indicate that the appellant's family responsibilities and business responsibilities fell into the exceptional category of cases where such factors may be considered mitigatory.
Manifest excess
We turn to consider whether the sentence imposed, both as to its length and the length of the pre‑release order, was manifestly excessive.
The maximum penalty for the offence committed by the appellant was 5 years' immediate imprisonment and/or a fine not exceeding $63,000.
The offence created in s 474.17A(1) of the Criminal Code is of recent origin. To our knowledge, there are no comparable sentencing cases decided by any intermediate appellate court in the Commonwealth. This is not a barrier to this court arriving at a conclusion that the sentence was manifestly excessive. In such a circumstance, this court will have regard to the maximum penalty for the offence, the seriousness of the offence and the personal circumstances of the appellant.
The offence committed by the appellant was introduced as part of the Enhancing Online Safety (Non-Consensual Sharing of Intimate Images) Act 2018 (Cth), the Explanatory Memorandum for which relevantly stated:
The intent of the Bill is to send a clear message to the community that the sharing of intimate images without consent is not an acceptable practice.
…
The introduction of these specific new offences will send a clear message to the community that the sharing of private sexual material is not acceptable.
…
The practice is generally intended to cause harm, distress, humiliation and embarrassment, whether through the actual sharing and distribution of intimate images, or the threat to share, often in an attempt to control, blackmail, coerce or punish a victim (commonly referred to as 'sextortion'). Other motives might include sexual gratification, fun, social notoriety and/or financial gain. (footnotes omitted)
The clear objective of the legislation is to address the substantial harm which can be inflicted upon victims by the non-consensual sharing or distribution of intimate images.
We agree with the sentencing judge that the offence committed by the appellant was a serious example of its kind, for the reasons that he gave. While there were significant mitigating factors, particularly the appellant's plea of guilty, his remorse, his favourable antecedents and prospects for rehabilitation, this was the kind of offending which required the imposition of a sentence which properly reflected the objectives of general and, to a lesser extent, personal deterrence.
We are of the opinion, after analysing and weighing all relevant facts and circumstances (including the sentencing judge's findings of fact which have not been challenged or have not been successfully challenged and bearing in mind that the appellant transmitted images, not videos) and all relevant sentencing factors (including such of the matters set out in s 16A(2) of the Crimes Act 1914 (Cth) as were relevant and known to the court) in the context of:
(a)the maximum penalty for the offence;
(b)the seriousness of the offence;
(c)the particular importance of general deterrence and, to a lesser extent, personal deterrence as sentencing factors; and
(d)all matters of mitigation,
that the sentence of 20 months' immediate imprisonment, with a pre‑release period of 10 months, was commensurate with the seriousness of the appellant's offending. The length of the sentence, including the length of the pre‑release period, was of a severity appropriate in all the circumstances of the offence.
We are satisfied that a term of 20 months' immediate imprisonment was not unreasonable or plainly unjust. Also, we are satisfied that the recognisance release order, which required the appellant to serve 10 months of the sentence, was not unreasonable or plainly unjust.
Supplementary submissions
After the hearing on 18 March 2021, the appellant sought, and was given leave, to file supplementary written submissions.[31] These submissions were filed on 30 April 2021. We have read them. They are, in part, a repetition of submissions already made and emphasise matters in mitigation which we have taken into account. In other parts, the appellant makes irrelevant and baseless allegations against the Commonwealth Director of Public Prosecutions, the Australian Federal Police, the victim and the sentencing judge, some of which contradict his claims of remorse and none of which are helpful to the appellant's case.
[31] See order made by Buss P, 15 April 2021.
Conclusion and orders
Because the delay in commencing the appeal was relatively short, we would grant the extension of time. However, none of the grounds of appeal have a reasonable prospect of success. Leave to appeal should be refused and the appeal dismissed.
We would make the following orders:
(1)The application for an extension of time is granted.
(2)Leave to appeal is refused.
(3)The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NF
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza
30 JULY 2021
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