The State of Western Australia v Doyle
[2024] WASCA 161
•17 DECEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: THE STATE OF WESTERN AUSTRALIA -v- DOYLE [2024] WASCA 161
CORAM: BUSS P
MITCHELL JA
HALL JA
HEARD: 6 DECEMBER 2024
DELIVERED : 6 DECEMBER 2024
PUBLISHED : 17 DECEMBER 2024
FILE NO/S: CACR 116 of 2024
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
MICHAEL JAMES DOYLE
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BARBAGALLO DCJ
File Number : IND 42 OF 2024
Catchwords:
Criminal law - State appeal against sentence - Respondent pleaded guilty to two counts of possession of child exploitation material - Respondent sentenced to 18 months' imprisonment suspended with conditions for 2 years - Whether sentence was manifestly inadequate as to the type of sentence imposed
Legislation:
Criminal Code (WA), s 220
Result:
Leave to appeal granted
Appeal dismissed
Category: D
Representation:
Counsel:
| Appellant | : | R F Owen SC & B B Sertorio |
| Respondent | : | C A McKenzie |
Solicitors:
| Appellant | : | Director of Public Prosecutions (WA) |
| Respondent | : | McKenzie & McKenzie |
Case(s) referred to in decision(s):
AAE v The State of Western Australia [2024] WASCA 35
Abraham v The State of Western Australia [2020] WASCA 192
Cluett v The Queen [2019] WASCA 111
CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 256 CLR 346
Cross v The State of Western Australia [2018] WASCA 86; (2018) 272 A Crim R 549
DKN v The State of Western Australia [2018] WASCA 87
Guagliardo v The State of Western Australia [2023] WASCA 71
HJT v The State of Western Australia [2020] WASCA 120
HNA v The State of Western Australia [2016] WASCA 165
House v the King (1936) 55 CLR 499
Kabambi v The State of Western Australia [2019] WASCA 44
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Naysmith v The Queen [2013] WASCA 32
O'Hara v The Queen [2021] WASCA 123
R v Liddington (1997) 18 WAR 394
Shelley v The State of Western Australia [2014] WASCA 154
Shi v The State of Western Australia [2020] WASCA 197
SYO v The State of Western Australia [2024] WASCA 31
The State of Western Australia v Egeland [2018] WASCA 228; (2019) 276 A Crim R 77
The State of Western Australia v McCarthy [2014] WASCA 210; (2014) 246 A Crim R 86
REASONS OF THE COURT:
At the conclusion of the hearing of this State appeal against sentence on 6 December 2024, we made orders granting leave to appeal and dismissing the appeal. We said that we would publish reasons for making those orders later. These are our reasons for making those orders.
Introduction
On 23 October 2024, the respondent was convicted on his pleas of guilty of two counts of possession of child exploitation material, contrary to s 220 of the Criminal Code (WA). Both offences were committed on 13 January 2024 at Somerville (a suburb of Kalgoorlie). Count 1 related to images and videos located on the respondent's Samsung mobile phone. Count 2 related to images and videos located on a desktop computer, Google mobile phone and a hard drive.
Also on 23 October 2024, the respondent was sentenced to 12 months' imprisonment for count 1, and 18 months' imprisonment for count 2. The sentencing judge indicated that the sentences should be served concurrently. The sentences of imprisonment were conditionally suspended for 2 years, with supervision and program requirements.
The State now appeals against the sentences imposed on the ground that they were manifestly inadequate as to the type of sentence imposed. The State contends that it was not open to the sentencing judge to consider that an order for conditionally suspended imprisonment was an appropriate sentencing option. The State contends that sentences of immediate imprisonment ought to have been imposed.
Circumstances of offending
The sentencing judge made the following unchallenged findings as to the circumstances of the respondent's offending.
At about 8.25 am on 13 January 2024, police executed a search warrant at the respondent's address in Somerville. They seized devices including a Samsung mobile phone, a desktop computer, a Google mobile phone and a hard drive. Subsequent review revealed the presence of child exploitation material on each of those four devices.
The material on the devices was classified as either 'category 1' material or 'category 2' material. Category 1 comprises material involving real children perceived to be under 13 years of age depicting sexual activity, including the child witnessing sexual activity, or with a clear focus on either the genitals or anus of a child or children. Category 2 comprises any child exploitation material that does not fall under category 1, including anime or written material and depiction of children over 13 and under 18 years of age.
Police located 741 images (436 in category 1 and 305 in category 2) and eight videos (three in category 1 and five in category 2) on the Samsung mobile phone. Police located 309 images (107 in category 1 and 202 in category 2) and 44 videos (nine in category 1 and 35 in category 2) on the other three devices. The images were of Caucasian‑appearing female victims aged between 7 and 16 years. The videos were of Caucasian-appearing female victims, aged between 8 and 18 years. The images and videos included depictions of oral, vaginal, and anal penetration of children, children involved in solo masturbation and objects being inserted into children's anuses and vaginas.
One of the videos was 7 minutes 43 seconds in length, and depicted penile-oral, penile-vaginal, and penile-anal penetration of a child who was about 12 years old by an adult male. The title of the video and the folder in which it was located stated that the victim was 12 years old.
Personal circumstances
The respondent was 24 years old at the time of offending and 25 years old at the date of sentencing. He was born to the short relationship of his parents. His mother used heroin and methylamphetamine during her pregnancy, and his father was in prison at the time he was born. The respondent's mother surrendered him to his paternal grandparents when he was about 2 months old, and the respondent has not seen his mother since that time. The respondent was cared for by his paternal grandparents, with the assistance of the respondent's father, to adulthood. The respondent's father died from a drug overdose in 2020, and his paternal grandfather was deceased at the time of sentencing. At the time of sentencing, the respondent was living with his 78‑year‑old grandmother in Kalgoorlie and providing care to her.
The respondent completed year 11 of high school and attained adequate literacy and numeracy skills. He struggled at school and was bullied and ostracised. In year 9, a psychological report noted the respondent's long history of learning and behavioural difficulties and indicated that he was medicated for ADHD. He remained on ADHD medication at the time of sentencing.
After leaving school, the respondent worked in a local supermarket for a little over a year. His longest period of employment was two years working for a drill parts supply company, which ended when the business closed. His most recent employment at the time of sentencing was for a period of about seven months working as a storeman at a mining related company. That employment ended when the respondent was charged with the current offences. The respondent has been unable to find employment since that time.
The respondent's only two significant relationships were a relationship with a girlfriend for about three months in year 11 and a two‑year relationship with another girlfriend that ended in 2020.
The respondent started watching pornography at 16 years of age and began watching it daily after his relationship ended in 2020.
The respondent was withdrawing from illicit drug dependency for the first 18 months of his life, which likely contributed to the respondent developing an unstable or borderline personality structure. At the date of sentence, the respondent was medicated for ADHD, anxiety and depression, and was prescribed a mood stabiliser to help him sleep and manage his emotions better. The respondent developed a significant pattern of using sexual activity, mainly pornography viewing, as a coping strategy. The respondent had been proactive in seeking professional help and had engaged with various mental health professionals throughout his life. At the time of sentencing, the respondent had completed over seven sessions with a clinical psychologist and continued to engage with his psychologist and general practitioner. The respondent was also being investigated for cardiac issues at the time of sentencing.
The respondent did not have any current issues with alcohol or illicit drugs at the time of sentencing and was not under the influence of substances at the time of offending.
The respondent's only prior criminal convictions were for two traffic offences in 2021, for which he received fines.
Sentencing judge's approach
The sentencing judge found that the respondent pleaded guilty at the earliest reasonable opportunity and allowed a discount of 25% under s 9AA of the Sentencing Act 1995 (WA).
While the sentencing judge accepted that there was some remorse, it was limited. Her Honour noted that the respondent had explained that his last partner was a petite and skinny young-looking female of a similar age to the respondent. The respondent said that, once the relationship ended, he started seeking out pornographic material that reminded him of her. The respondent said that he did not actively seek out child exploitation material. He said that the child exploitation material in his possession was of adult females who looked young, and he viewed that material for sexual gratification. The sentencing judge did not accept this explanation, as the images and videos in the respondent's possession obviously contained very young children, including children who were about 7 years old, who could not be mistaken for an adult.
The sentencing judge was not able to predict the respondent's prospects of reoffending or prospects of rehabilitation, because there were too many unknowns. Her Honour observed:[1]
There are risk factors clearly in existence, and there have been steps you have taken to address some of those risk factors. You are young, and one can only hope that this is the last time you engage in this serious offending.
[1] Sentencing ts 35.
The sentencing judge noted that the respondent had not spent any time in custody in respect of the offending.
The sentencing judge noted that general deterrence is a major sentencing consideration for this kind of offending. The courts aim to eliminate or reduce demand and supply of child exploitation material by sending an unequivocal message that the possession of child exploitation material will ordinarily be met with a period of immediate imprisonment. Because of the weight given to general deterrence, mitigating factors personal to the offender are afforded less weight, but are not to be ignored.
In assessing the seriousness of the respondent's offending, the sentencing judge observed:[2]
The child exploitation material you possess[ed] involves a relatively large number of images and videos which depicted a large number of real children, as young as seven years of age, who were being sexually exploited by adults, including sexually abused in the most disgusting and degrading of ways. No child should be treated in that way. No child should be recorded having those things done to them. No child should have that recorded sexual abuse being distributed to people all over the world for men like you to get off on it.
The impact that this offending is likely to have on those children, as I said earlier, would be incalculable.
[2] Sentencing ts 36.
The last reference was to her Honour's earlier observation that:[3]
[P]ossessing this material is not a victimless crime. Real children were engaged in these videos and images. They were engaged in sexual activity which, in my view, was disgusting, degrading and at times, physically harmful, to satisfy the desires of people like you [who] create a demand for it. These children were young. As young as seven years of age, who were being used as sex toys. Their young age alone makes them vulnerable. Their size and their inequity in the relationships with their abusers makes them vulnerable.
One can see from the videos that these children are somehow used to engage in this kind of conduct. The normalisation of this conduct also makes them vulnerable as they have been treated in such a way as to think that what they're doing is normal. They have no hope to resist the wants and wishes of adults who use them in the ways that are depicted in the images and videos, and which you view. This kind of demand and exploitation, humiliation and corruption of these children and the adverse impact on them - and the adverse impact can have on them is incalculable.
Children were abused, violated and degraded in the production of that material. Child exploitation material is a permanent record of that depicted child's abuse and the harm to the child is exacerbated by its circulation. One is only left to imagine the impact … this kind of offending has on those nameless but sexually abused and violated children which you have searched for, downloaded and found cathartic to look at. By this offending, you have played a role in the exploitation, corruption, humiliation, damage and victimisation of those vulnerable children.
[3] Sentencing ts 26 - 27.
After noting the absence of some aggravating factors which are sometimes seen with this kind of offending, the sentencing judge said:[4]
If I were to look at your conduct absent your personal circumstances, your offending is very usual, the kind of offending we regularly see in this court.
[4] Sentencing ts 36.
The sentencing judge concluded that imprisonment was the only appropriate sentencing option and imposed the terms of imprisonment referred to at [3] above. Her Honour then turned to consider whether those terms of imprisonment should be suspended:[5]
In your case, this has been a difficult decision.
On the one hand, you have committed two serious offences. On the other hand, your personal circumstances and antecedents are somewhat unusual, in which there is significant mitigation. In all of the circumstances and by the barest of margins, Mr Doyle, I am persuaded that, given your particular unfortunate background and the impact it has had on your life and your personal circumstances, as well as the steps you have taken to get help, suspension is warranted.
It seems to me that both your interests and the interests of the community generally are best served by the term being suspended with conditions.
[5] Sentencing ts 37.
The sentencing judge then ordered that the sentences of imprisonment she had imposed be conditionally suspended for 2 years, with program and supervision requirements.
General principles
The general principles governing an assessment of whether an individual sentence of imprisonment is manifestly inadequate as to type of sentence or length are well established and need not be fully set out here.[6]
[6] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
For present purposes it is sufficient to emphasise that, in determining whether a sentence is manifestly inadequate, regard must be had to the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to the offence, the place which the offender's criminal conduct occupies on the scale of seriousness of offences of the kind in question and the personal circumstances of the offender. When a sentencing judge imposes a sentence of conditionally suspended imprisonment and the State asserts on appeal that the sentence is manifestly inadequate as to type, the question for this court is whether it was reasonably open to the sentencing judge, upon application of the relevant sentencing principles and considerations and in all the circumstances, to fail to be positively satisfied that a term of conditionally suspended imprisonment was an inappropriate sentencing option.[7]
[7] The State of Western Australia v Egeland [2018] WASCA 228; (2019) 276 A Crim R 77 [136] - [139].
In the absence of express error (and none is alleged in this case), this court is not authorised to interfere unless legal error is to be inferred from an outcome of the exercise of the sentencing discretion which is unreasonable or plainly unjust.[8]
[8] House v the King (1936) 55 CLR 499, 504 - 505.
Whether conditionally suspended sentence was manifestly inadequate
Maximum penalty
Section 220 of the Criminal Code provides that a person who has possession of child exploitation material is guilty of a crime and liable to imprisonment for 7 years.
The following terms are defined in s 217A of the Criminal Code:
child means a person under 16 years of age;
child exploitation material means -
(a)child pornography; or
(b)material that, in a way likely to offend a reasonable person, describes, depicts or represents a person, or part of a person, who is, or appears to be, a child -
(i)in an offensive or demeaning context; or
(ii)being subjected to abuse, cruelty or torture (whether or not in a sexual context);
child pornography means material that, in a way likely to offend a reasonable person, describes, depicts or represents a person, or part of a person, who is, or appears to be a child -
(a)engaging in sexual activity; or
(b)in a sexual context[.]
Customary sentencing standards
The general principles relating to sentencing for offences against s 220 of the Criminal Code were discussed by Mazza JA (McLure P & Buss JA agreeing) in The State of Western Australia v McCarthy:[9]
Offences relating to [child exploitation material] are not victimless crimes. Those who possess and distribute this material encourage its production which involves and depicts the abuse, exploitation, humiliation and corruption of children who are vulnerable and incapable of protecting themselves. The harm caused to these children is incalculable. In a very real sense, those who possess or distribute this material encourage further child abuse.
The prevalence of offending of this type is an issue because [child exploitation material] is readily available via the internet and may be obtained, possessed and distributed in digital form across the world in multiple jurisdictions. Offences in relation to it are often difficult to detect and investigate.
The major sentencing consideration is general deterrence. The court's duty is to protect children. The purpose of imposing deterrent sentences is to eliminate or reduce demand for, and thus the production and supply of, [child exploitation material]. This requires courts to send an unequivocal message that the distribution and possession of [child exploitation material] will ordinarily, as a matter of fact, be met with immediate imprisonment. Because of the weight to be given to general deterrence, mitigating factors personal to the offender, including good character, are accorded less weight.
…
An examination of the cases confirms that those who commit offences in respect of [child exploitation material] are, like the respondent, commonly of prior good character, are well regarded by those who know them and have done good work in the community. It is not at all unusual to see an offender who has no prior criminal record and is assessed as having a low risk of reoffending. Offenders are not infrequently people who have standing in the community and have achieved much in their life. These factors can only be given limited weight because of the need for general deterrence. (citations omitted)
[9] The State of Western Australia v McCarthy [2014] WASCA 210; (2014) 246 A Crim R 86 [71] - [73], [76].
These principles have been applied by this court on many occasions.[10]
[10] See, for example, AAE v The State of Western Australia [2024] WASCA 35 [75]; Guagliardo v The State of Western Australia [2023] WASCA 71 [57]; O'Hara v The Queen [2021] WASCA 123 [49]; Shi v The State of Western Australia [2020] WASCA 197[45].
In considering whether to suspend or conditionally suspend a sentence of imprisonment, the following well-established principles, stated in Shi and repeated here for ease of reference, are to be applied.[11]
[11] Shi [39] - [41].
A court must not impose a term of immediate imprisonment unless positively satisfied, having regard to the sentencing principles in div 1 of pt 2 of the Sentencing Act, that it is not appropriate to impose some form of suspended imprisonment.[12] It is established that:[13]
1.A court is not permitted to impose a term of immediate imprisonment unless that is the only appropriate sentencing option.
2.In determining whether to exercise the power to suspend a term of imprisonment the court must look again at all matters relevant to the circumstances of the offence and the personal circumstances of the offender.
3.The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation. The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation.
4.Even if a term of immediate imprisonment is generally the appropriate penalty, the sentencing judge must determine the appropriate penalty for the particular case, having regard to all relevant sentencing factors. The relevant question is whether, having regard to all relevant sentencing factors, the case does not require the imposition of the ordinarily appropriate sentence.[14]
[12] Sentencing Act, s 39(2), s 39(3).
[13] See, for example, Cross v The State of Western Australia [2018] WASCA 86; (2018) 272 A Crim R 549 [33] ‑ [35]; DKN v The State of Western Australia [2018] WASCA 87 [35] ‑ [37].
[14] McCarthy [58].
The rationale for not imposing an immediate term of imprisonment in a given case will vary according to the particular facts and circumstances of the case. Determining whether a sentencing option is 'not appropriate' involves an evaluative judgement which is broad but not at large; it must be reached by applying the relevant sentencing principles and considerations to all the circumstances of the offence and the offender.[15] In R v Liddington, a case concerning possession of child pornography under the predecessor offence to s 220 of the Criminal Code, Steytler J identified as non‑exhaustive relevant factors: (1) the prospect of rehabilitation; (2) the personal deterrence provided by the threat of activation of the suspended sentence; (3) the perceived seriousness and intrinsic character of the particular offence; (4) any element of persistence; (5) general deterrence; (6) factors personal to the offender including mitigating circumstances; (7) the need to demonstrate the condemnation of the community for offences of that kind; and (8) reasons militating in favour of an exercise of mercy.[16]
[15] HNA v The State of Western Australia [2016] WASCA 165 [29].
[16] R v Liddington (1997) 18 WAR 394, 406.
There will be cases where immediate imprisonment is the only sentencing option commensurate with the seriousness of the offence, even though it is counterproductive from the perspective of rehabilitation. The seriousness of the nature and circumstances of the offending may require a sentence of immediate imprisonment irrespective of the personal circumstances of the offender.[17]
[17] Egeland [177].
As is illustrated by the decision in McCarthy, and the review of sentencing decisions under s 220 of the Criminal Code in that case, sentences other than immediate imprisonment are, as a matter of fact, unusual.
The State refers to three decisions of this court allowing offender appeals against sentence in which sentences other than terms of immediate imprisonment were substituted by this court. In Shelley v The State of Western Australia,[18] the court substituted a conditionally suspended term of imprisonment in a case where the offender, who possessed far fewer images than the present case, voluntarily disclosed their existence to police and embarked upon an intensive course of rehabilitation. In Naysmith v The Queen,[19] an intensive supervision order was substituted for terms of immediate imprisonment for State and Commonwealth offences committed by an offender with a significant intellectual disability. In Cluett v The Queen,[20] the offender, who suffered from autism spectrum disorder, accessed a limited number of images on an open website. His offending was motivated by irrational views associated with cognitive impairment and was not sexually motivated. This court imposed a suspended sentence for an offence against s 220 of the Criminal Code and ordered the offender's release upon entering into a recognisance for the Commonwealth offences.
[18] Shelley v The State of Western Australia [2014] WASCA 154.
[19] Naysmith v The Queen [2013] WASCA 32.
[20] Cluett v The Queen [2019] WASCA 111.
However, these cases do not define the circumstances in which it may be open to a sentencing judge to impose a sentence other than immediate imprisonment for an offence against s 220 of the Criminal Code. This court has repeatedly recognised that possession of child exploitation material will ordinarily, as a matter of fact, be met with immediate imprisonment. That is not to say that a sentence of immediate imprisonment will be the only appropriate sentence in all but extreme cases. It is also significant that, in those three offender appeals, the question was whether a sentence of immediate imprisonment was unreasonable or plainly unjust. In the context of a State appeal against sentence, it is not sufficient for the court to conclude that a sentence of immediate imprisonment would not be manifestly excessive. Rather, the question is whether it was open to the sentencing judge to fail to be positively satisfied that a sentence of conditionally suspended imprisonment was an inappropriate kind of sentence. Further, the purpose underpinning offender appeals against sentence is different from State appeals against sentence. Offender appeals are concerned with the correction of error in the particular case. State appeals are concerned with establishing principles for the guidance of sentencing judges.[21]
Seriousness of the offending
[21] See CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 256 CLR 346 [55] (Kiefel, Bell & Keane JJ).
The court in Shi identified the following non-exhaustive list of factors which are relevant in determining the seriousness of a particular offence against s 220 of the Criminal Code:[22]
[22] Shi [44].
1.The gravity of the sexual activity depicted including the level of perversion and debauchery.
2.The number of children depicted.
3.The age or apparent age of the child or children.
4.The extent to which the conduct depicted in the child exploitation material is likely to harm the child or children.
5.Whether the child exploitation material tends to depict sexual activity with children as attractive or desirable.
6.The number of videos, images or other items the subject of each charged offence.
7.Whether the child exploitation material was possessed by the offender for purposes which included sale or further distribution.
8.Whether the offender profited or was likely to profit from the commission of each charged offence.
In the present case, the child exploitation material included images and videos depicting girls as young as 7 years old being sexually penetrated by adult males. The deplorable conduct depicted in the images and videos was likely to have a devastating effect on the children subject to that sexual penetration. The sentencing judge's finding that the images and videos were obviously of very young children is not challenged on appeal. The title of the folder in which the video described at [9] above was located is inconsistent with the respondent's stated belief that the videos were of petite young-looking adults. The respondent was in possession of over a thousand images and videos which depicted the sexual abuse of many children. While there was no finding as to the period over which the respondent accessed this material, the volume of child exploitation material and the variety of locations in which it was stored indicated at least some degree of persistence in the offending.
Personal circumstances
Apart from his pleas of guilty at the first reasonable opportunity, there are significant mitigating factors to be found in the respondent's personal circumstances, many of which relate to his difficult entry into the world.
Although the respondent had a relatively stable upbringing in the care of his paternal grandparents, his mother's drug use during pregnancy and subsequent abandonment of the respondent has left a permanent mark upon him. As Mr Wszola, who prepared the court‑ordered psychological pre-sentencing report on the respondent, observed:[23]
[The respondent's] test profile also indicated a salient elevation that was indicative of an unstable or borderline personality structure. This was characterised by emotional regulation deficits, poorly developed sense of self and instability in the interpersonal realm. This was congruent with his reported difficulties in those areas. Such a personality structure, usually developed in the context of traumatic and/or adverse childhood experiences … was congruent with his traumatic very early childhood experiences.
[23] Report of Mr Wszola dated 9 July 2024, par 4.4.
Mr Wszola recognised that the respondent's early development was adversely impacted by exposure to amphetamine and heroin in utero and his mother's subsequent inability to care for him. He was a 25-year-old male, who was socioemotionally immature relative to his age in years. He experienced salient impulse and emotional management issues, and experienced difficulties developing and maintaining healthy adult relationships.[24] Mr Wszola also observed:[25]
[The respondent's] comments also indicated that he developed a pattern of using sexual activity, in particular pornography viewing, as a daily coping strategy. Such reliance on pornography viewing to help him cope with difficult internal states and to provide him with sexual gratification would have served to reinforce his use of legal pornography and also of [child exploitation material]. This combined with his impulse control difficulties, which were seen to be related to the presence of neurodevelopmental vulnerabilities, would have elevated his risk of poor decision making and of accessing [child exploitation material]. (emphasis added)
[24] Report of Mr Wszola dated 9 July 2024, pars 8.1 - 8.2.
[25] Report of Mr Wszola dated 9 July 2024, par 8.4.
As this court recently observed in SYO v The State of Western Australia,[26] the childhood experience of an offender may be relevant to sentencing that person in a variety of ways:
Frequently, offenders who come before the courts to be sentenced have experienced disadvantage in their childhood. An offender's deprived childhood will ordinarily be relevant because it forms part of the appellant's overall background and antecedents. The disadvantage may help explain or place into context a pattern of offending and assist the assessment of the risk of re-offending and prospects for rehabilitation. The fact that an offender experienced a deprived and dysfunctional background may also be relevant to the determination of a just sentence because it is causally connected to the particular offending, or because it may explain why a person offended. It may also, in a particular case, be relevant because it bears upon the question of whether an offender's time in custody will be more onerous than might otherwise be the case, or in determining the issues that may be relevant if rehabilitation efforts are to be successfully adopted. It may also be relevant, as a mitigating factor, because the offender has managed to overcome a disadvantaged background and the offence committed was out of character. (citations omitted)
[26] SYO v The State of Western Australia [2024] WASCA 31 [65].
In the present case, the fact that the respondent has largely been able to overcome the difficulties following the circumstances of his birth is a mitigating factor.[27] The respondent's neurodevelopmental vulnerabilities resulting from those circumstances have a causal relationship to the offending and can be seen to reduce the respondent's moral culpability to some extent. The proactive steps the respondent has taken to engage available medical support are also mitigatory.
[27] SYO [72].
However, the respondent has not been deprived of the capacity to control his actions, to appreciate right from wrong or to learn and reform.[28] His childhood deprivation is not such as to make this case a less appropriate vehicle for general deterrence or to remove the significance of personal deterrence as a relevant sentencing consideration. His risk of future offending is, as the sentencing judge found, difficult to assess. The offending was not isolated or out of character. The respondent is an adult offender who is responsible for the choices he has made. His moral culpability, and the significance of personal and general deterrence, are not diminished by any impairment of his capacity to make those choices.
[28] As to which, see SYO [66] - [70].
Counsel for the respondent pointed to the respondent's role in caring for his elderly grandmother. The mitigation to be derived from that circumstance is limited. As this court observed in HJT v The State of Western Australia:[29]
The general principle is that hardship caused to an offender's family by imprisonment of an offender will only be taken into account in the sentencing process in exceptional cases. In all cases, whether and to what extent it may be taken into account depends upon the gravity of the offence and the circumstances of the case. The more serious the offence, the less the court has the capacity to mitigate punishment having regard to hardship to an offender's family. This is particularly so in a case where the predominant sentencing considerations are personal and general deterrence. The period over which the offences were committed may also be a relevant consideration.
[29] HJT v The State of Western Australia [2020] WASCA 120 [59].
The material before the sentencing judge did not demonstrate the kind of exceptional family hardship that would justify any significant reduction in the sentence which would otherwise be commensurate with the seriousness of the offending.
Conclusion as to ground of appeal
The State prosecutor's sentencing submissions before the sentencing judge described the question of whether or not the term of imprisonment to be imposed in this case should be conditionally suspended as 'finely balanced'.[30] It was open to the sentencing judge to accept this view of the case put forward by a very experienced senior prosecutor, as her Honour in effect did in making the remarks quoted at [26] above.
[30] Sentencing ts 23 - 24.
The nature of the offending was unquestionably very serious and the number and nature of vile images and videos in the respondent's possession would ordinarily result in a sentence of imprisonment to be immediately served.
However, the relatively young respondent suffered neurodevelopmental vulnerabilities resulting from his mother's drug use during pregnancy and her abandonment of him shortly after his birth. Psychological evidence accepted by the trial judge indicated that this had a continuing impact on the respondent and a causal relationship to the offending. The respondent had been proactive in seeking professional assistance to address the challenges presented by these circumstances.
The impact of a term of immediate imprisonment was highly likely to be detrimental to the respondent's prospects of rehabilitation. The Damocles sword represented by a conditionally suspended imprisonment order would provide a significant incentive to the respondent to avoid reoffending and comply with the onerous conditions of the order. It was open to the sentencing judge to take the view that the interests of the protection of the community against future offending by the respondent were best served by making a conditionally suspended imprisonment order. If the respondent does reoffend during the suspension term then he will be required to serve the suspended term of imprisonment unless the court decides it would unjust to do so in view of all of the circumstances that have since arisen, or have since become known.[31]
[31] Sentencing Act, s 84F(1)(a), s 84F(3).
Given the number and nature of images and videos in the respondent's possession, it would certainly have been open to the sentencing judge to conclude that a term of immediate imprisonment was the only appropriate sentencing option commensurate with the seriousness of the offending. However, this court is not authorised to interfere with the sentence merely because it might have imposed a term of immediate imprisonment if it had been sentencing the respondent. It is recognised that, in a borderline case, it may be reasonably open for different judges to impose different types of sentences.[32] As the High Court observed in Lowndes v The Queen:[33]
[A] court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice. (citation omitted)
[32] Abraham v The State of Western Australia [2020] WASCA 192 [40]
[33] Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15].
In all of the circumstances of this particular case, it was open to the sentencing judge to fail to be positively satisfied that a sentence of conditionally suspended imprisonment was an inappropriate kind of sentence. As such, the decision to impose a sentence of conditionally suspended imprisonment was not unreasonable or plainly unjust. The sentencing judge's judgment that the interests of the community would be best served by the term of imprisonment being suspended with conditions was reached after careful consideration. It has not been demonstrated that the sentencing judge erred in the exercise of the discretion which the law committed to her Honour. In the circumstances, this court is not authorised to interfere with the sentence imposed by the sentencing judge.
Orders
For the above reasons, the court made the following orders at the conclusion of the hearing of the appeal:
1.Leave to appeal is granted on the sole ground of appeal.
2.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KP
Associate to the Honourable Justice Mitchell
17 DECEMBER 2024
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