Siriphanuruk v The State of Western Australia
[2021] WASCA 221
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SIRIPHANURUK -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 221
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 6 OCTOBER 2021
DELIVERED : 23 DECEMBER 2021
FILE NO/S: CACR 104 of 2021
CACR 105 of 2021
BETWEEN: THANYARAS SIRIPHANURUK
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: STAUDE DCJ
File Number : IND 2261 of 2019
Catchwords:
Criminal law - Appeal against sentence - Appeal against violence restraining orders - Pursuing with intent to intimidate - Production of child exploitation material - Use of electronic communication to expose child under 13 to indecent matter - Distribution of child exploitation material - Causing someone to receive a written demand with intent to extort or gain - Whether sentencing judge made errors of fact - Whether sentences manifestly excessive - Whether sentence infringed first limb of totality principle - Whether sentencing judge erred in making lifetime restraining orders
Legislation:
Community Protection (Offender Reporting) Act 2004 (WA), s 6(1), sch 2
Criminal Code (WA), s 204B(3)(a), s 218, s 219(2), s 338E(1), s 397(1)
Restraining Orders Act 1997 (WA), s 63A
Result:
CACR 104 of 2021:
Extension of time to appeal granted
Leave to appeal refused
Appeal dismissed
Application for an urgent appeal order dismissed
CACR 105 of 2021:
The appellant's application for leave to appeal against violence restraining orders referred to the hearing of the appeal
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Kabambi v The State of Western Australia [2019] WASCA 44
Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
Shah v The Queen [2019] WASCA 110
Topuz v The State of Western Australia [2017] WASCA 186
JUDGMENT OF THE COURT:
Before the court are the appellant's applications for leave to appeal against sentence (CACR 104 of 2021) and violence restraining orders (CACR 105 of 2021) made by the District Court on 20 May 2021. Each appeal was filed almost two months out of time. Accordingly, in each case, an extension of time is required. The appellant also seeks an urgent appeal order in the event leave to appeal is granted.[1]
[1] The appellant has also filed an appeal against conviction which has not yet been dealt with.
The appellant was charged on indictment with 12 offences which arose out of a sustained campaign of intimidation and harassment by the appellant upon three victims. Two of the victims, RJ and his wife, A, from whom RJ was separated, were adults. The third victim, R, the daughter of RJ and A, was a child under the age of 16 years.
Counts 1 and 2 alleged the appellant pursued RJ (count 1) and A (count 2) with intent to intimidate, contrary to s 338E(1) of the Criminal Code (WA) (Code). Counts 3, 4, and 5 alleged that the appellant produced child exploitation material (CEM), contrary to s 218 of the Code. Count 6 alleged that the appellant used electronic communication with intent to expose R, a person under the age of 13 years, to indecent matter, contrary to s 204B(3)(a) of the Code. Counts 7, 9, 10, 11 and 12 alleged that the appellant distributed CEM to RJ and others, contrary to s 219(2) of the Code. Count 8 alleged that the appellant, with intent to extort or gain, caused RJ to receive a written demand, contrary to s 397(1) of the Code.
On 15 April 2021, after a 22‑day trial before Staude DCJ and a jury, the appellant was convicted of all 12 charges in the indictment.
On 20 May 2021, his Honour sentenced the appellant to a total effective sentence of 5 years' immediate imprisonment with eligibility for parole, backdated to 19 March 2019.[2] The details of the individual sentences that were imposed are set out in the table below:
[2] ts 2173 - 2174.
Charge
Description
Max Sentence
Sentence
Count 1
Between 26 July 2018 and 18 March 2019 at Padbury and elsewhere, the appellant pursued RJ with intent to intimidate, contrary to s 338E(1) Code. 3 years' imprisonment 2 years' imprisonment (head sentence) Count 2
Between 26 July 2018 and 18 March 2019 at Kallaroo and elsewhere, the appellant pursued A with intent to intimidate, contrary to s 338E(1) Code. 3 years' imprisonment 2 years' imprisonment (concurrent) Count 3
Between 26 July 2018 and 2 March 2019 at Padbury, the appellant produced child exploitation material, namely an edited pornographic image, contrary to s 218 Code. 10 years' imprisonment 6 months' imprisonment (cumulative upon count 1) Count 4
Between 26 July 2018 and 2 March 2019 at Padbury, the appellant produced child exploitation material, namely an edited pornographic image, contrary to s 218 Code. 10 years' imprisonment 6 months' imprisonment (concurrent) Count 5
Between 26 July 2018 and 2 March 2019 at Padbury, the appellant produced child exploitation material, namely an edited pornographic image, contrary to s 218 Code. 10 years' imprisonment 6 months' imprisonment (concurrent) Count 6
On 23 February 2019 at Kallaroo, the appellant, being an adult, used electronic communication with intent to expose R, a person under the age of 13 years, to indecent matter, contrary to s 204B(3)(a) Code. 10 years' imprisonment 6 months' imprisonment (cumulative upon count 1) Count 7
On 2 March 2019 at Padbury, the appellant distributed child exploitation material by sending it to RJ and others, contrary to s 219(2) Code. 10 years' imprisonment 12 months' imprisonment (cumulative upon count 1) Count 8
On 3 March 2019, the appellant, with intent to extort or gain, caused RJ to receive a written demand that he give a sum of money, $10,000, without reasonable cause, and containing threats of injury or detriment if the demand was not complied with, contrary to s 397(1) Code. 14 years' imprisonment 12 months' imprisonment (cumulative upon count 1) Count 9
On 4 March 2019 at Padbury, the appellant distributed child exploitation material by sending it to RJ and others, contrary to s 219(2) Code. 10 years' imprisonment 12 months' imprisonment (concurrent) Count 10
On 6 March 2019 at Padbury, the appellant distributed child exploitation material by sending it to RJ and others, contrary to s 219(2) Code. 10 years' imprisonment 12 months' imprisonment (concurrent) Count 11
On 6 March 2019 at Hillarys, the appellant distributed child exploitation material by sending it to RJ and others, contrary to s 219(2) Code. 10 years' imprisonment 12 months' imprisonment (concurrent) Count 12
On 14 March 2019 at Padbury, the appellant distributed child exploitation material by sending it to RJ and others, contrary to s 219(2) Code. 10 years' imprisonment 12 months' imprisonment (concurrent)
His Honour also made various other orders, including violence restraining orders to protect each of the victims. These orders were made without objection by the appellant.[3]
[3] ts 2177.
The appellant is a litigant in person. She was born in Thailand. English is not her first language, but she has, in the proceedings, demonstrated a good command of spoken and written English. The grounds of appeal and the supporting submissions reflect the fact that she is not a lawyer, but it is clear enough that in her appeal against sentence she alleges that the individual sentences that were imposed are manifestly excessive and that the total effective sentence infringes the first limb of the totality principle. The appellant also alleges that the sentencing judge made several errors of fact.[4]
[4] Appellant's case (CACR 104 of 2021).
In relation to the appeal against the violence restraining orders, the appellant claims that the making of the orders was unnecessary because she is in custody and will, very likely, be deported once she is released on parole or her sentence is served. The appellant alleges, in effect, that his Honour erred by not taking these circumstances into account when he made the violence restraining orders and that the orders should not have been made.
For the reasons that follow, none of the grounds in the appeal against sentence have a reasonable prospect of succeeding. In the appeal against the violence restraining orders, we would refer the question of leave to appeal to the hearing of the appeal.
The facts
His Honour made comprehensive findings of fact in respect of the appellant's offending.[5]
Background to the offences
[5] ts 2153 - 2167.
The appellant, who is a Thai national, was born in March 1980. She is sometimes known as 'Ming'. At all material times, she was ordinarily resident in Singapore with her then husband and two young children. She claims to hold a number of university degrees, including a degree in medicine. At the time of her offending, she was making a living from online gold trading.[6]
[6] ts 2154.
In late 2016, she came into contact with RJ through an internet dating site called Thai Cupid. At the time, RJ was 59 years old. RJ lived separately from his wife, A, and their two children, one of whom is R. At the time of the offending, R was 12 or 13 years old. RJ and A had not divorced, and their relationship was amicable. They lived in separate residences, and had in place a co‑parenting arrangement with respect to their children.[7]
[7] ts 2154.
After meeting online, the appellant and RJ communicated for some time using LINE, a messaging application. In May 2017, the appellant flew to Perth and met RJ in person. From this point, they developed a romantic relationship. During the relationship, the appellant and RJ frequently spent time together either in Perth or in Singapore.[8]
[8] ts 2155.
When the appellant was in Perth she stayed with RJ. He allowed her to use his home desktop computer and email account and she had access to the necessary passwords. The appellant discovered on RJ's computer a folder of email communications between RJ and a woman named Lorrie Lyn Lope, with whom RJ had been in an occasional romantic relationship that ended on amicable terms in 2014.[9]
[9] ts 2155.
In July 2017, the appellant and RJ travelled together to the United Kingdom. During this trip, tension developed between them as to the progress of RJ's divorce from A. RJ wanted a relationship with the appellant, but thought that a divorce from A was going to take some time.[10]
[10] ts 2155.
In February 2018, the appellant asked RJ about Ms Lope. He gave her an account of their relationship, essentially in the terms referred to in [14] above. The appellant told RJ that she had received an email from Ms Lope demanding $2,000 in exchange for a video of RJ and Ms Lope having sex. The appellant told RJ that she had paid this sum. The appellant also told RJ that she had received another email from Ms Lope demanding $2,000 for topless photographs which the appellant had previously sent to RJ. RJ told the appellant that he was unaware of any video of him and Ms Lope having sex and that he had not been given any topless photographs of the appellant.[11]
[11] ts 2155.
Ms Lope had nothing to do with the production of these emails or any other email purportedly sent by her to the victims. All such communications were fabricated by the appellant, and the appellant's statements about Ms Lope were false. However, RJ believed that they were true.[12]
[12] ts 2155.
In this belief, RJ assisted the appellant to prepare an online police report which was sent to the Singapore Police explaining the actions which were attributed to Ms Lope. Later, in April 2018, RJ and the appellant attended, in person, at the Tanglin police station in Singapore where they met a police officer named Francis Low. After dealing with the police in Singapore, RJ and the appellant travelled to Manila, where they reported Ms Lope's 'extortion' to the police.[13]
[13] ts 2156.
In April 2018, the appellant, once again using the persona of Ms Lope, began emailing RJ from an email address that the appellant had created using RJ's computer. In one such email, the appellant, pretending to be Ms Lope, said that she would meet RJ in Singapore. The appellant then convinced RJ that the Singapore police intended to instigate a 'sting' operation to apprehend Ms Lope when she arrived in Singapore from Manila. Later, she told RJ that Ms Lope had been arrested and jailed.[14]
[14] ts 2156.
The appellant's deception of RJ became even more elaborate. In May 2018, the appellant invented yet another persona, Harry Jew, who was said to be the estranged husband of Ms Lope. The appellant, using the persona of Harry Jew, sent two emails to RJ from another email account created by the appellant on RJ's computer. In these emails, the Harry Jew persona appeared to know all about the extortions purportedly carried out by Ms Lope and to be sympathetic to RJ. Moreover, the Harry Jew persona expressed grievances against Ms Lope. The appellant sought to cultivate the belief on the part of RJ that the Harry Jew emails were genuine.[15] Later, in August 2018, the appellant added to the list of fictitious personae by introducing into the narrative Elvis Lope, who was portrayed as Ms Lope's brother.[16]
[15] ts 2156.
[16] ts 2157 - 2158.
In July 2018, RJ took the appellant and his two children to Toronto to visit members of his family. During this trip, the relationship between the appellant and RJ soured, although it did not end until some months later.[17]
[17] ts 2156.
Counts 1 and 2
In the period between 29 July 2018 and 18 March 2019, the appellant subjected RJ and A to a series of email barrages. She disguised her identity by using multiple personae and email addresses concentrated in two periods, first, between July and August 2018, and second, between February and March 2019. These barrages involved the appellant sending hundreds of communications in numerous email chains using various invented narratives. Consistently with the jury's verdicts, the sentencing judge found that these emails amounted to the pursuit of each of RJ and A, and that they were sent with the intention of intimidating each of them.[18] It is these email barrages which constitute counts 1 and 2.[19]
[18] ts 2161.
[19] ts 2161.
The emails included threats of sexual violence towards A and the child, R. They also included death threats and details about their daily lives that persuaded RJ and A to believe that they were being watched and pursued by a criminal gang and that they and R were at real risk of serious physical harm.[20] The language used in them was frequently highly obscene. Some of the emails sent to A contained what his Honour described as 'sexual references of the worst kind to her daughter [R]'.[21]
[20] ts 2158 - 2159.
[21] ts 2158.
During the period of offending that constituted counts 1 and 2, the appellant created and used fictitious personae, in addition to Ms Lope and Harry Jew.
Among the narratives the appellant invented were:
(1)RJ and his family were being closely watched by a Filipino crime gang associated with Ms Lope, whom she said had been released from prison and was seeking revenge on RJ and his family. Some of the emails used to further this narrative attached photographs of RJ's children, while others threatened kidnap and acts of violence. At one point, emails were sent by the appellant which led A to believe that R was being watched by the gang. The emails were taken seriously, to the extent that A took R out of school and travelled with her to the safety of A's family in Italy, where they remained for a period of time.[22]
(2)The appellant had friends in the Thai military, including a General Aod, who would help deal with the Filipino gang associated with Ms Lope. General Aod is a real person who had been known to the appellant, but who had no involvement in this false narrative. The appellant, using the persona of General Aod, sent emails to herself and RJ. Later, the appellant introduced yet another fictitious person called Angus Campbell into this narrative.[23]
[22] ts 2158.
[23] ts 2159.
Prior to September 2018, RJ developed suspicions that the appellant was somehow involved in the email barrages. RJ conveyed this to the Western Australian police but was, as his Honour described it, 'roundly disabused by the officer to whom he made the complaint of this suspicion'.[24] As a consequence, RJ was more inclined to believe that the emails he was receiving were genuine.
[24] ts 2159.
In September 2018, the email barrage stopped when the appellant told RJ that Ms Lope had been apprehended by police in the Philippines.[25]
[25] ts 2162.
Between October and December 2018, the appellant and RJ separated. In that period, the appellant travelled to the United Kingdom and South Africa. In December 2018, the appellant returned to Perth and stayed with RJ. RJ considered that his relationship with the appellant was one of friendship and they holidayed together in Bangkok and Myanmar in the Christmas and New Year period of 2018 to 2019.[26]
[26] ts 2159.
A new barrage of offensive emails commenced on 9 February 2019, after RJ informed the appellant that he would not support her application for a partner's visa based on a romantic relationship with him because, as far as RJ was concerned, the relationship was no more than amicable and platonic. The appellant felt aggrieved by RJ's refusal. What followed was a long chain of text messages which exhibited hostility towards RJ and a desire to cause harm to his family. His Honour found it was with this motive in mind that the appellant committed the offences of distributing CEM.[27]
[27] ts 2159 - 2160.
The appellant's feelings of grievance also manifested in a further barrage of emails, purportedly from Ms Lope, threatening sexual violence towards R.[28]
[28] ts 2160.
On 17 February 2019, while RJ was away from his house, the appellant flew from Singapore and was able to enter the property, even though most of the locks had been changed. While the appellant was in the house, RJ returned and called the police, who spoke to the appellant and gave her a 72‑hour notice. The appellant told the police officers that she would not leave Australia until she had got what she deserved.[29]
[29] ts 2161.
On 18 February 2019, RJ obtained a violence restraining order against the appellant, but was unable to serve it on the appellant.[30]
[30] ts 2160.
On 22 February 2019, the appellant went back to RJ's house. Once again, the police were called. The appellant had a fainting spell which the sentencing judge found was not genuine.[31]
[31] ts 2160 - 2161.
Between 9 February to 17 March 2019, the appellant sent hundreds of emails to RJ, A and others in 117 separate email chains from the various bogus addresses and fictitious personae that she had created. Some of these emails indicated that RJ and his family were being watched and tracked at their home and elsewhere, others contained explicit threats of violence, and still others contained attachments, being documents that the appellant had obtained from RJ's personal computer which exacerbated the fear caused by the emails. In order to disguise the appellant's identity as the author of these emails, she copied them to her own private email accounts so that she appeared to be a recipient of the same disturbing communications.[32]
[32] ts 2164.
Counts 3, 4 and 5
Counts 3, 4 and 5 are offences of producing CEM. The appellant obtained digital images of R from RJ's computer. Using an application, the appellant excised R's face from an image and superimposed it on an image of a female body engaged in sexual activity, thereby creating a composite pornographic image constituting CEM. It is in this way that the appellant produced the CEM the subject of counts 3, 4 and 5. The image of R and the composite images were later found by police in a partial download of mobile devices used by the appellant.[33]
[33] ts 2164 - 2165.
Count 3 concerned an image of a female body being penetrated by a sex toy. Count 4 concerned an image of a female body exhibiting her breasts and vagina. Count 5 concerned an image of a female body engaging in sexual activity with two males.[34]
[34] ts 2165.
Count 6
Count 6 involved the appellant, on 23 February 2019, sending an email to R from one of the bogus email addresses she had created. The email had the subject heading, 'Fuck you', and attached three pornographic video files depicting sexual activity among adults. The appellant obtained R's email address having received a 'thank you' message from R for a birthday present the appellant had given her earlier that month.[35]
[35] ts 2165.
Count 8
Count 8 involved the appellant, on 3 March 2019, sending an email to RJ and A demanding that the sum of US$10,000 be paid to a Western Union account. In the email, the appellant threatened to distribute pornographic pictures of R and harm her if the demand was not met within 24 hours. The email was purportedly from Ms Lope.[36]
[36] ts 2165 - 2166.
Counts 7, 9, 10, 11 and 12
On five occasions in March 2019, the appellant sent by email to various recipients composite pornographic images of the kind described in [35] above, depicting R's face superimposed on another body.[37]
[37] ts 2166.
Count 7 related to an email under the heading, 'Porn star', sent on 2 March 2019 to 23 email addresses. The email contained a link to a website to which the appellant had uploaded the CEM.[38]
[38] ts 2166.
Count 9 related to an email sent on 4 March 2019 to seven email addresses with the subject, 'ImageBam [R]'. The text of this email included links to a website to which the appellant had uploaded the CEM.[39]
[39] ts 2166.
Count 10 related to another email on 4 March 2019 sent to eight email addresses attaching the same image as in count 9. It, too, contained links to a website to which the CEM had been uploaded.[40]
[40] ts 2166.
Count 11 related to an email sent by the appellant on 6 March 2019 to 23 recipients, including a number of email addresses associated with R's school. Sixteen images were attached which included composite pornographic images depicting R's face. There were also passport photographs and other family photographs attached to the email. The distribution of these images, specifically the composite pornographic images to the school, was intended to cause humiliation and embarrassment to RJ's family.[41]
[41] ts 2166 - 2167.
Count 12 related to an email sent on 14 March 2019 by the appellant to multiple email addresses that attached another composite pornographic image of R. There were other attachments, including two screenshots from pornography websites showing composite pornographic images of R. There were also photoshopped images depicting the appellant's and A's heads superimposed on nude female bodies.[42]
[42] ts 2167.
Impact on the victims
The sentencing judge was provided with victim impact statements written by RJ, A and R. His Honour summarised the effect of the offending on the victims in this way:[43]
[The offending] caused [RJ] to experience fear and anxiety and he remains fearful that you will harass his family again in the future. He's very worried about his daughter's wellbeing. He himself is receiving psychological support.
[A], in her statement, describes the period of your offending as the worst time of her life. She also fears that you will cause harm to her and her family in the future and is concerned for the welfare of her daughter.
[R] has made a statement in which she has described feeling anxious and paranoid during the period of the offending. She felt unsafe in her own home. She avoided going into certain rooms, thinking that she might be seen from outside if she did so. She blames herself for your conduct. She has ongoing problems in the form of sleeping difficulties. She describes low self‑esteem and self-consciousness.
[43] ts 2168 - 2169.
The appellant's personal circumstances
The appellant was aged 38 years at the commencement of the period of her offending and 41 years when she was sentenced. She is not an Australian citizen.
The appellant's mother lives in Thailand and her two young children reside in Singapore.[44] It appears that the appellant has not seen her children since her arrest.
[44] ts 2154.
As mentioned, the appellant claims she has a number of university degrees, including a degree in medicine. His Honour described the appellant as 'highly intelligent'.[45]
[45] ts 2168.
The appellant has no prior criminal history.[46]
[46] ts 2154.
While in custody on remand, the appellant was diagnosed with, and treated for, breast cancer. His Honour was provided with a report from the appellant's oncologist, dated 21 December 2020, which stated that the appellant had undergone surgery and did not require chemotherapy. In February 2021, the appellant completed a course of radiotherapy. She appears to be in remission, but requires periodic review. The appellant also has a pre‑existing cardiac arrythmia for which she received treatment in Singapore.[47] His Honour found that none of these conditions required treatment that could not be provided to the appellant as a sentenced prisoner.[48]
[47] ts 2169.
[48] ts 2169.
During the trial, a number of people gave evidence of the appellant's good character. His Honour noted that, while in custody on remand, the appellant had conducted herself well.[49]
[49] ts 2170.
No psychological or psychiatric evidence pertaining to the appellant was put before the sentencing judge.
The sentencing remarks
In addition to his Honour's comprehensive description of the facts, the appellant's personal circumstances and the impact of the offending on the victims, the sentencing remarks included the following.
His Honour described the appellant's exculpatory evidence at trial as 'a tissue of lies'[50] which was contradicted by objective evidence linking her to the creation of the email accounts from which the offensive emails were sent. His Honour described the State's case against the appellant as 'utterly overwhelming'.[51]
[50] ts 2161.
[51] ts 2162.
The sentencing judge found that, in the course of the appellant's evidence at trial, she falsely:[52]
(a)claimed she had been tricked by Western Australian detectives into signing a statement in which she admitted sending the emails;
(b)suggested that RJ was the author of at least some of the emails;
(c)said that she had received extortion demands from Ms Lope; and
(d)denied she created the bogus personae and email addresses.
[52] ts 2167 - 2168.
His Honour noted that the emails the subject of counts 1 and 2 included death threats and other material that persuaded RJ's family to believe that they were being followed by a criminal gang and were at risk of serious harm.[53] His Honour described counts 1 and 2 as 'grave offences' that fell 'at the top end' of the range of seriousness of offences of their kind.[54] He observed that the offending was prolonged, extremely distressing to the victims and involved threats of sexual and other violence, including to R.[55] His Honour found that the appellant sought to manipulate RJ in order to benefit financially and to obtain an Australian partner's visa.[56]
[53] ts 2161.
[54] ts 2161.
[55] ts 2161.
[56] ts 2161 - 2162.
The sentencing judge characterised the emails sent by the appellant between February and March 2019 to RJ, A and R as being of the 'most offensive kind'.[57] He said that the stalking offences were aggravated by the number of email communications, the prolonged period over which they were sent and by the extraordinary lengths to which the appellant went to create in RJ and A a sense of helplessness which led them to believe that they could not be assisted by law enforcement authorities in Australia. Instead, the appellant induced them to believe that she could help them via her contact in the Thai army.[58]
[57] ts 2163.
[58] ts 2163.
His Honour found that the emails the appellant sent in August and September 2018 were intended to preserve her relationship with RJ, from which she could benefit financially. His Honour found that the emails sent in February and March 2019 were 'clearly vindictive' when the appellant realised that there was no real prospect of there being an 'ongoing conjugal relationship' with RJ.[59]
[59] ts 2163.
With respect to counts 3, 4 and 5, his Honour found that the production of the CEM was calculated to create pictures intended to harass and intimidate RJ and A and were done without thought of the distress that they might cause R who was, at the time, 12 years old.[60]
[60] ts 2165.
His Honour described count 6 as a particularly 'nasty' offence which displayed 'a callous and vindictive attitude towards [R]'.[61] He characterised the offence as 'depraved'.[62]
[61] ts 2165.
[62] ts 2165.
His Honour stated that counts 7 - 12 were aggravated by the breadth of the appellant's distribution of the composite images of CEM, including that the appellant uploaded the images onto websites and sent them to R's school.[63] He said that it was difficult 'to imagine a more vicious attempt to harm [RJ's] family'.[64]
[63] ts 2167.
[64] ts 2167.
His Honour summarised the criminality of the offending and its effect in the following way:[65]
The offences were committed very purposefully with the clear and unequivocal intention of manipulating, harassing and intimidating the victims. It is unusual and disturbing behaviour. Bizarre is not an inapposite adjective. I have only in these remarks summarised the salient features of the whole story. There are many other details that could be referred to.
But as one might say colloquially, you couldn’t make this up. The emails produced in court took days to be read, they contained some of the most vituperative and obscene language I have ever heard or read. The mind that invented the narrative that conceived of and gave expression to the various bogus personae and that calculated the likely effect of the email abuse is clever, imaginative, inventive and sophisticated.
Your actions were those of a highly intelligent person. Sadly, those actions were also cruel and depraved. Your offending as a whole was premeditated and sustained. It was particularly harmful. It effectively terrorised the victims.
[65] ts 2168.
His Honour found that the appellant was not remorseful and took no responsibility for her behaviour. He noted that the appellant continued to pursue RJ by maintaining, without a factual basis, an application against him for a violence restraining order. His Honour found that both personal and general deterrence were relevant sentencing factors.[66] He rejected a submission by defence counsel that the appellant was not a suitable vehicle for general deterrence by reason of her health and her separation from her family.[67]
[66] ts 2172.
[67] ts 2170.
The sentencing judge took into account as a mitigating factor that, by reason of the appellant's illnesses and the hardship of being separated from her family, imprisonment would weigh more heavily upon her.[68]
[68] ts 2170, 2173.
In response to a submission by defence counsel that the appellant and her family had suffered embarrassment, disgrace and humiliation as a result of the media attention the case attracted, his Honour said that this was an inevitable consequence of the offending and was not mitigating. His Honour observed that the discomfort caused to the appellant and her family was 'nothing compared to the distress that [she] caused [RJ's] family'.[69]
[69] ts 2170.
His Honour acknowledged that the appellant had no prior criminal history, but said he would give little weight to this as a mitigating factor.[70] His Honour explained that despite the absence of a prior criminal record, having regard to the deliberate and prolonged offending and the effect that the appellant knew her actions were having on the victims, he did not regard her conduct as being an aberration or out of character.[71]
[70] ts 2168.
[71] ts 2168.
His Honour observed that the appellant had adduced good character evidence at her trial, but said that he gave this limited weight as it was 'quite at odds with the personality that [the appellant] revealed in [her] offending behaviour'.[72]
[72] ts 2170.
His Honour acknowledged that the appellant had conducted herself well while in custody on remand and observed that, as a consequence, 'one might have reason to think that you will be capable of rehabilitation'.[73]
[73] ts 2170.
His Honour concluded the only appropriate sentences were terms of immediate imprisonment. After he stated the sentences for each offence, his Honour applied the totality principle to arrive at the total effective sentence of 5 years' immediate imprisonment.[74]
[74] ts 2172 - 2173.
The grounds of appeal - CACR 104 of 2021
There are four grounds of appeal in the appellant's case. The grounds are lengthy and diffuse. Having considered them, along with the appellant's written and oral submissions, it is clear enough that her main contentions are that the individual sentences that were imposed were manifestly excessive and that the total effective sentence infringed the first limb of the totality principle.
In addition, the appellant alleges that she was the subject of 'discrimination' and 'racial prejudice'. The allegations of 'discrimination' and 'racial prejudice' are based upon criticisms of some of his Honour's fact‑finding, which we will deal with below. However, it is as well to point out that the alleged factual errors provide no basis whatever for the allegations of 'discrimination' and 'racial prejudice'. These assertions are baseless and are rejected. The sentences imposed on the appellant have nothing to do with her race or nationality. The sentences are founded on, and are a proper reflection of, her appalling offending conduct.
Several portions of the appellant's submissions are, in substance, an attack upon the verdicts of guilty. As such complaints are outside the ambit of this appeal, which is an appeal against sentence, nothing more need be said about them.
We will deal first with the criticism of some of his Honour's fact‑finding. We will then deal with the allegations that the individual sentences were manifestly excessive and that the total effective sentence infringed the first limb of the totality principle.
Alleged errors of fact
The appellant alleges three errors of fact. The first two allegations of error relate to his Honour's findings as to the events of 22 February 2019. The third alleged error is that his Honour failed to find, as a mitigating factor, that her children in Singapore were named in media reports and suffered embarrassment, disgrace and humiliation as a result of the publicity her trial attracted.
In his description of the factual circumstances of counts 1 and 2, his Honour referred to the appellant's attendances upon RJ's home on 17 and 22 February 2019.
In relation to the events of 22 February 2019, his Honour referred to the appellant affecting a fainting spell. He also said that, at the time, the appellant had 'established a relationship, at least of a sexual nature, with another man, but [continued] to harass [RJ] and his family'.[75]
[75] ts 2161.
The appellant asserts that his Honour erred in finding that the appellant had, in effect, faked the fainting spell and by stating that the appellant was, at the time, in a sexual relationship 'with another man'.
It is unnecessary to repeat the evidence surrounding the events on 22 February 2019 at RJ's home. It is enough to say that in light of that evidence, and even if it is accepted that the appellant had a condition (heart arrythmia) that might cause fainting, it was open to his Honour to find that on this particular occasion she faked a fainting spell in an attempt to distract the police and avoid explaining why she was at RJ's house on the day in question. His Honour did not err in making this finding. Even if he did, we do not regard the error as being material to the sentences that were imposed on counts 1 and 2 or the total effective sentence. Consequently, this complaint does not assist the appellant, as only errors that are material justify and require this court's intervention.
On our review of the trial record, we have been unable to find any testimony or other evidence which shows that the appellant was in a sexual relationship with 'another man' at or around the time of 22 February 2019. It may be that his Honour has erred in this respect. However, even if he erred as alleged, the finding was immaterial to the sentences that were imposed on counts 1 and 2 and to the total effective sentence.
The appellant also claims that his Honour erred by failing to find as a mitigating factor that her children, who reside in Singapore, were named in media reports and suffered embarrassment, disgrace and humiliation as a result of the publicity the trial attracted.
His Honour noted that a submission had been made on the appellant's behalf that the appellant's family had been embarrassed, disgraced and humiliated by the media attention the case had attracted. His Honour did not state that the appellant's children had been named in the media reports and there is no evidence that they were.[76] As a matter of principle, embarrassment, disgrace or humiliation caused to members of an offender's family is not ordinarily a mitigating factor. It is only in exceptional cases, and on the basis of cogent evidence, that such matters may be taken into account as a mitigating factor.[77]
[76] ts 2170.
[77] Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267, 303 - 304 [123] (Kirby J).
In the present case, his Honour found that the embarrassment, disgrace and humiliation the appellant's offending may have caused her family, including her children, was not a mitigating factor.[78] His Honour was correct in making this finding. There was nothing before his Honour upon which he could have found that any embarrassment, disgrace and humiliation experienced by the appellant's family, and particularly her children, came within that exceptional category of cases where these considerations could be regarded as mitigating. Any embarrassment, disgrace or humiliation experienced by the appellant's family is properly seen as merely a consequence of the appellant's extraordinary offending conduct. That provides no mitigation to the appellant.
[78] ts 2170.
There is no merit to any of the appellant's claims that his Honour made factual errors.
Manifest excess and totality
The appellant contends that the individual sentences imposed by his Honour were manifestly excessive and that the total effective sentence of 5 years' immediate imprisonment infringed the first limb of the totality principle.
The appellant's submissions in support of these grounds focus upon:
(a)her favourable antecedents;
(b)the impact that her imprisonment has had and will continue to have upon her children, who reside in Singapore;
(c)the fact that RJ and his family did not suffer any physical injury as a result of the offending; and
(d)the fact that the sentences that were imposed are longer than sentences imposed in other cases which involve offences in which the victims suffered physical injury.
The general principles relevant to allegations of implied error of the type alleged by the appellant are well‑established. We adopt, without repetition, the statement of these principles made by this court in Kabambi v The State of Western Australia.[79]
[79] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
The maximum penalties for the offences committed by the appellant are set out in the table in [5] above.
We have already described the facts and circumstances of the offences as well as the appellant's personal circumstances. Individually and collectively, the offending was patently very serious. His Honour regarded it as such and, in our opinion, his reasons for doing so are both compelling and correct.
Manifest excess
With respect to the stalking offences the subject of counts 1 and 2, the appellant engaged in a persistent and prolonged campaign of harassment and intimidation of RJ and A. The appellant went to extraordinary lengths to construct complex narratives designed to instill fear of physical harm in each victim. Her methods included threats of sexual violence towards R, their child, who was under the age of 13 years. Among the false narratives she created, the appellant created a narrative in which she induced RJ and A to believe that they were endangered by a Filipino crime gang. Their fear was such that R and A travelled to Italy to remove themselves from the perceived danger.
The appellant, in effect, preyed upon RJ and A for her own selfish purposes. She did so in order to benefit financially and to obtain an Australian partner's visa. His Honour was right to describe counts 1 and 2 as 'grave offences' that fell 'at the top end' of the range of seriousness for offences of their kind.[80]
[80] ts 2161.
The appellant seeks to diminish the seriousness of the offences by pointing to the absence of any actual physical harm to RJ, A and R. While the infliction of physical harm would have been another aggravating factor, it must be borne in mind that the appellant's actions caused the high degree of psychological distress which is evident from the victim impact statements. The appellant must have been aware of the distress her actions were causing, yet she continued to send the emails and intimidate and harass the victims. The absence of an aggravating feature is not a mitigating factor. The fact that the appellant did not inflict any physical injury on the victims is not mitigating and ignores the psychological distress she caused. It does not advance the appellant's contentions of implied error.
In respect of counts 1 and 2, it must be borne in mind that the maximum penalty for the offences is 3 years' imprisonment. It is clear from the sentencing remarks that his Honour was acutely aware of this fact.[81] The sentences of 2 years' imprisonment that were imposed for counts 1 and 2 are reasonably close to the maximum penalty. The appellant makes this point in her written submissions. However, bearing in mind the serious features identified by the sentencing judge, the offences were very serious - indeed, close to being characterised as falling within the worst category. There was little mitigation. While his Honour found that the appellant was of prior good character, this factor was of little weight given the persistence and nature of the communications. The appellant's health and the separation from her family in Singapore were also matters of mitigation, but, again, could only attract limited mitigating weight. The appellant did not have the mitigatory benefit of pleas of guilty or remorse, maintaining, as she does, that she is innocent and has been the victim of a 'set‑up'.
[81] ts 2153.
The appellant does not cite any comparable cases in support of the contention of manifest excess. Instead, the appellant asserted that, while in gaol, she has heard of some unnamed cases, apparently decided at first instance, in which it is claimed the victims suffered physical violence, which attracted greater individual sentences than those imposed on her. Such references do not assist the court. When this court considers the outcomes in comparable cases, it has regard to cases decided by this court.
The absence of comparable cases does not preclude a conclusion that the individual sentences are manifestly excessive. In such circumstances, the court has regard to all of the other yardsticks relevant to the assessment of whether the sentence is manifestly excessive.
The appellant also submits that the judge erred in not suspending the terms of imprisonment he imposed. That submission underlines the appellant's continuing lack of appreciation of the seriousness of her offending conduct. Given the seriousness of her conduct in committing counts 1 and 2, it is unthinkable that it could have attracted anything but a term of imprisonment to be served immediately.
Having regard to all of the relevant facts and circumstances, it is not reasonably arguable that the individual sentences on counts 1 and 2 were manifestly excessive. They are not unreasonable or plainly unjust. Implied error has not been established.
We now turn to the individual sentences that were imposed on counts 3, 4 and 5, being offences that the appellant produced CEM in the form of an edited pornographic image contrary to s 218 of the Code.
An offence contrary to s 218 of the Code carries a maximum penalty of 10 years' imprisonment. The facts and circumstances of each offence have already been described and need not be repeated. In essence, the appellant superimposed an image of R's face upon pornographic images of female bodies which she obtained on the internet. Each offence concerns the creation of one such image. Each image was produced by the appellant with the intention of harassing and intimidating RJ and A and, as the sentencing judge found, without thought of the distress that they might cause to R who was, at the time, 12 years old.
Having regard to these circumstances and to the limited mitigation that was available to the appellant, the sentence his Honour imposed on each count of 6 months' imprisonment was, if anything, lenient. The sentences on counts 3, 4 and 5 were not unreasonable or plainly unjust. They were not infected by implied error and were not manifestly excessive.
We now turn to the individual sentence on count 6. Count 6 was an offence of sending indecent material to a child under the age of 13 years, contrary to s 204B(3)(a) of the Code. The maximum penalty for this offence is 10 years' imprisonment.
The facts and circumstances of this offence are set out in [37] above. His Honour described the offence in the manner set out in [60] of these reasons. His characterisation of it as 'depraved' is entirely accurate. In our opinion, the sentence of 6 months' imprisonment that was imposed on count 6 was, if anything, lenient. It was not unreasonable or plainly unjust. It cannot reasonably be argued that the sentence was manifestly excessive.
At this point, it is convenient to turn to counts 7, 9, 10, 11 and 12. Each of those counts involved the distribution by the appellant of CEM, contrary to s 219(2) of the Code. Each of these offences carries a maximum penalty of 10 years' imprisonment. The facts of this offending are summarised in [39] ‑ [44] of these reasons. His Honour's observations set out at [61] above as to the aggravating circumstances, including the breadth of their distributions, and his difficulty in imagining a more vicious attempt to harm RJ's family, cannot reasonably be doubted. In our opinion, the individual sentences of 12 months' imprisonment which were imposed for each of counts 7, 9, 10, 11 and 12 were not unreasonable or plainly unjust and were not manifestly excessive.
Finally, we turn to the sentence of 12 months' imprisonment which was imposed for the offence of extortion, contrary to s 397(1) of the Code, the subject of count 8. The facts and circumstances of this offence are described at [38] above.
The appellant submitted that the sentence imposed for this offence was manifestly excessive having regard to the fact that the offence was constituted by only one email. However, it is the context and content of the email which are important. In the context of the campaign the appellant waged against RJ and A, the demand in the email for the payment of US$10,000 with the threat to distribute pornographic pictures of A if the demand was not met was taken seriously by the victims and constituted further serious harassment and intimidation. The sentence of 12 months' imprisonment, having regard to the maximum penalty of 14 years' imprisonment, and to the limited mitigating factors explained in [92] above, was not unreasonable or plainly unjust and was not manifestly excessive.
In summary, none of the individual sentences imposed by his Honour could reasonably be said to have been manifestly excessive.
Totality
The appellant's overall offending involved a high level of criminality. His Honour's summary of the criminality set out at [62] of these reasons is entirely accurate.
As we have already stated, the offending occurred over an extended period of time and involved the terrorisation of three members of one family, including a child. Denunciation, along with personal and general deterrence, were important sentencing considerations. The requirement for personal and general deterrence meant that whatever mitigation the appellant had by reason of her personal circumstances was to be given limited weight in the sentencing exercise.
Thus, the matters which could legitimately be taken into account as mitigating factors, being her prior good record, her ill health and her separation from her children in Singapore, could not be accorded significant weight.
The appellant submits that she has suffered double punishment because the material the subject of counts 6 ‑ 12 was sent in some of the emails which were the subject of counts 1 and 2. We do not accept this submission. While some of the material the subject of counts 6 ‑ 12 was transmitted by emails which formed part of counts 1 and 2, its creation and distribution to third parties involved separate and distinct offending which required some additional punishment. It is to be noted that his Honour accumulated the sentences on counts 1, 3, 6, 7 and 8. Otherwise, the individual sentences were ordered to be served concurrently. In our opinion, his Honour's approach to cumulacy and concurrency avoided double punishment.
There is no comparable case decided by this court which constitutes a yardstick against which to measure the overall criminality of the offending. This is hardly surprising, given the bizarre nature of what the appellant did and the combination of offences that resulted.
A feature of the appellant's conduct reflected in her submissions to this court is her lack of remorse and victim empathy. She does not appear to grasp the seriousness of her actions or the effect of what she did upon RJ, A and R. A common thread in her oral and written submissions to this court is the assertion that the victims did not suffer any physical harm as a result of what she did. It appears that the appellant is oblivious to the high level of psychological harm she inflicted upon RJ, A and R. In these circumstances, the expressions of sorrow or regret asserted in her submissions cannot be accepted.
In the present case, his Honour was correct to accord particular weight to personal deterrence. His Honour was also correct to emphasise general deterrence. There is nothing in the appellant's conduct or in her personal circumstances, including her ill health and the fact that she must serve the terms of imprisonment away from her children, which would justify any moderation of general deterrence. The appellant's conduct was sustained over a long period, motivated by greed and revenge, and marked by a cruel and callous disregard of the rights and interests of her victims. Such calculated offending must be denounced by an appropriately lengthy sentence, and those who choose to engage in it must expect substantial punishment.
In our opinion, a total effective sentence of 5 years' immediate imprisonment was well within the discretionary range open to his Honour. It cannot be reasonably argued that it did not bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety, having regard to all relevant facts and circumstances, including those referable to the offender personally. The total effective sentence was not unreasonable or plainly unjust and did not infringe the first limb of the totality principle.
Conclusion and orders - CACR 104 of 2021
None of the grounds of appeal against sentence have any reasonable prospect of succeeding. Leave to appeal should be refused and the appeal dismissed. As the court has dealt with the appeal, an urgent appeal is otiose.
The orders we would make are as follows:
(1)An extension of time is granted.
(2)Leave to appeal is refused on all grounds.
(3)The appeal is dismissed.
(4)The application for an urgent appeal order is dismissed.
Appeal against the making of lifetime violence restraining orders - CACR 105 of 2021
We now turn to consider the appeal against the making of lifetime violence restraining orders against the appellant in favour of RJ, A and R.
On 20 May 2021, immediately after sentencing the appellant, his Honour began to make permanent violence restraining orders in favour of RJ, A and R but, before doing so, asked the prosecutor if such orders were sought. The prosecutor responded that she sought permanent violence restraining orders, but had not, at that point, prepared minutes setting out their terms. His Honour said that he would adjourn the proceedings to later that day. He then asked defence counsel if he had any objection to the making of the orders. Defence counsel replied, 'No', adding, 'There are no grounds'.[82] Defence counsel then sought and obtained leave from further attendance in the proceedings.
[82] ts 2174.
His Honour then declared the appellant to be a reportable offender for the purposes of the Community Protection (Offender Reporting) Act 2004 (WA) and adjourned the proceedings to a time later that day to deal with the application for the violence restraining orders.[83]
[83] ts 2175 - 2176.
When the proceedings were called later on the same day, his Honour, in the presence of the appellant, made violence restraining orders against the appellant in favour of each of RJ, A and R. His Honour noted that the making of the orders followed from the conviction of the appellant for the offences in counts 1, 2 and 6.[84]
[84] ts 2177.
In CACR 105 of 2021, the appellant seeks leave to appeal against the making of the violence restraining orders. It also appears from the written submissions in support of the ground that the appellant challenges the declaration made in accordance with the Community Protection (Offender Reporting) Act.
Insofar as the appeal concerns the making of the declaration, the appeal is incompetent because, having regard to the operation of s 6(1), read with sch 2 of the Community Protection (Offender Reporting) Act, the making of the declaration follows by operation of law from the appellant's convictions for the offences contrary to s 204B(3)(a)(ii), s 218 and s 219 of the Code.[85]
[85] See Shah v The Queen [2019] WASCA 110 [56], [59] and Topuz v The State of Western Australia [2017] WASCA 186 [76].
In respect of the appellant's challenge to the making of the lifetime violence restraining orders, she submits, in effect, that such orders were unnecessary because she was, at the time of their imposition, incarcerated and will remain so until she is deported upon her release on parole or at the expiry of her sentence and, in effect, there is no risk that she will again harass, threaten or harm RJ, A and R.
His Honour's statement that the making of the orders followed from the conviction of the appellant for the offences in counts 1, 2 and 6 may indicate that his Honour regarded himself as having the power and the obligation to make lifetime violence restraining orders pursuant to s 63A(1) of the Restraining Orders Act 1997 (WA), which provides that a court convicting a person for a violent personal offence is to make either a family violence restraining order or a violence restraining order for the period of the life of the person who committed the offence.
The term 'violent personal offence' is defined in s 63A(1A) of the Restraining Orders Act. However, none of the offences for which the appellant was convicted constitute a 'violent personal offence' as defined.
There may be an argument that his Honour had the power to grant violence restraining orders in favour of RJ, A and R, pursuant to s 63 of the Restraining Orders Act.
Bearing in mind that the appellant is a litigant in person and it appears that his Honour may not have had the power to grant a lifetime violence restraining order pursuant to s 63A(1), we would refer the question of leave to appeal to the hearing of the appeal. The matter can be heard at the same time as the appellant's appeal against conviction.
The order we would make in CACR 105 of 2021 is:
1.The appellant's application for leave to appeal against violence restraining orders is referred to the hearing of the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RK
Research Associate to the Honourable Justice Murphy and the Honourable Justice Mazza
23 DECEMBER 2021
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