Vucemillo v The State of Western Australia
[2017] WASCA 37
•1 MARCH 2017
VUCEMILLO -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 37
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WASCA 37 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:56/2016 | 8 FEBRUARY 2017 | |
| Coram: | BUSS P NEWNES JA BEECH J | 1/03/17 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Application to adduce additional evidence on appeal dismissed Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | LAURENCE GEORGE VUCEMILLO THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence One count of using electronic communication with intent to procure person believed to be under 16 to engage in sexual activity Criminal Code, s 204B(2)(b) One count of possession of child exploitation material Criminal Code, s 220 Total effective sentence of two years and six months' immediate imprisonment Diagnosis after sentencing of autism spectrum disorder Whether evidence of diagnosis should be admitted on appeal Whether diagnosis should have caused different sentence to be imposed Whether total effective sentence infringed first limb of totality principle |
Legislation: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : VUCEMILLO -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 37 CORAM : BUSS P
- NEWNES JA
BEECH J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : HERRON DCJ
File No : IND 1257 of 2015
Catchwords:
Criminal law - Appeal against sentence - One count of using electronic communication with intent to procure person believed to be under 16 to engage in sexual activity - Criminal Code, s 204B(2)(b) - One count of possession of child exploitation material - Criminal Code, s 220 - Total effective sentence of two years and six months' immediate imprisonment - Diagnosis after sentencing of autism spectrum disorder - Whether evidence of diagnosis should be admitted on appeal - Whether diagnosis should have caused different sentence to be imposed - Whether total effective sentence infringed first limb of totality principle
Legislation:
Nil
Result:
Application to adduce additional evidence on appeal dismissed
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Ms N Sinton
Respondent : Mr B Murray
Solicitors:
Appellant : Legal Aid (WA)
Respondent : Director of Public Prosecutions (WA)
Bechara v The State of Western Australia [2016] WASCA 77
Giglia v The State of Western Australia [2010] WASCA 9
Gok v The Queen [2010] WASCA 185
HMN v The State of Western Australia [2015] WASCA 128
Krijestorac v The State of Western Australia [2010] WASCA 35
R v Engert (1995) 84 A Crim R 67
R v Tsiaras [1996] 1 VR 398
R v Verdins [2007] VSCA 102; (2007) 16 VR 269
R v Wright (1997) 93 A Crim R 48
Reid v The State of Western Australia [2009] WASCA 237
Rose v The State of Western Australia [2010] WASCA 31
Schaper v The State of Western Australia [2010] WASCA 159
The State of Western Australia v Johnson [2009] WASCA 224
Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385
Wheeler v The Queen [No 2] [2010] WASCA 105
1 JUDGMENT OF THE COURT: This is an appeal against sentence. On 29 January 2016, the appellant was convicted after trial in the District Court of one count of using electronic communication with intent to procure a person believed to be under 16 years of age to engage in sexual activity, contrary to s 204B(2)(b) of the Criminal Code, and one count of possession of child exploitation material, contrary to s 220 of the Criminal Code. The appellant was sentenced by Herron DCJ to a total effective term of 2 years and 6 months' immediate imprisonment.
2 The appellant appeals on the grounds, first, that there was a miscarriage of justice because the sentencing judge was not aware that the appellant had autism spectrum disorder, a condition that was only diagnosed subsequently; and secondly, that the total effective sentence infringed the first limb of the totality principle.
3 Leave to appeal has been granted on the first ground of appeal. The application for leave to appeal on the second ground was referred to the hearing of the appeal.
Background
4 The following facts, found by the sentencing judge, were not in issue on the appeal.
Count 1
5 During January 2015, the appellant placed an online advertisement in the following terms on a site called Craigslist:
Looking for any young girls that want to have some fun. The younger the better as I have got some perverted fantasies. Message me what you would like or would like to try. Nothing is off limits. Hope to make a regular thing if all goes well.
6 On 28 January, a police officer posing as a 14-year-old girl and using the name Livvy Harris responded to the advertisement as follows:
Hi. My name's Livvy, I'm a bit nervous because I've never done anything like this before but I saw your ad on Craigslist and I thought I might reply because one of my friends, she got money and stuff from there before. Anyway, I will be 15 in a couple of weeks and like I said I've never done anything like this before. Maybe you could email me back. Livvy.
7 A profile picture of a girl was also sent to the appellant.
8 The appellant replied the same day:
Hi Livvy, I am always happy to talk about things to see where they go. We won't do anything you're uncomfortable with, so don't worry.
9 There were then regular communications between the appellant and 'Livvy' of an explicitly sexual nature. In the course of those communications, the appellant asked Livvy whether she was on birth control and suggested that they meet in the city to go shopping for sexy panties for her. In a discussion about Livvy buying new bathers, the appellant said he would have to find her something extra sexy. In other communications, the appellant told Livvy that he wanted 'to fuck' her; he referred to sex toys and said he could show her what to do with them; he discussed meeting on the train and sliding his hand up her skirt; he asked Livvy whether she shaved, if she used tampons, and if her hymen had broken; he said he wanted to lick her genital area; and he offered to buy or give her a new phone, which his Honour found was to enable the appellant to communicate with her in sexually explicit language in private.
10 On a few occasions Livvy said she was 14 and on one or two occasions said she would be 15 in three weeks' time. Livvy sent the appellant a photograph of what purported to be her. The photograph was clearly that of a young girl.
11 On 30 January 2015, the appellant suggested to Livvy that they meet in the city to go shopping for some sexy panties for her. An earlier arrangement to meet at the movies had not eventuated. The appellant travelled to the city and went to Forrest Place where he had arranged to meet her. He was there arrested by police.
12 In an electronic record of interview, and at trial, the appellant maintained that he believed Livvy to be at least 18 years of age and to be role-playing as a 14-year-old girl. The appellant said he believed that because to access the Craigslist website it was necessary for the person seeking entry to verify or say that they were at least 18 years of age.
Count 2
13 Five images of child exploitation material were found on a thumb drive seized by police from the appellant's house. The images depicted young girls posing naked in sexually explicit ways. All of the girls were clearly under 16 years of age and some appeared to be as young as 7 or 8. The images fell within category 1 of the child exploitation material classification guidelines.
14 As mentioned earlier, the appellant was convicted after trial of one count of using electronic communication to procure a person believed to be under 16 years of age to engage in sexual activity and one count of possession of child exploitation material. He was sentenced to 2 years' immediate imprisonment on the first count and 6 months' immediate imprisonment on the second count, to be served cumulatively and to commence from 29 January 2016. The appellant was made eligible for parole.
The psychological report
15 A report was prepared for sentencing purposes by a psychologist, Ms Zuin. Ms Zuin noted that when interviewed the appellant presented as emotionally detached and maintained a 'flat affect' throughout. Having reviewed his background and upbringing, Ms Zuin considered that his severe emotional detachment appeared to be a manifestation of physical, emotional and verbal abuse as a child by his father and is likely to have served a self-protective function.
16 Ms Zuin considered that the appellant also displayed some features commonly associated with Asperger's Syndrome, including severe problems with social interaction, and restricted and repetitive patterns of behaviours and interests. Ms Zuin said that individuals with this disorder can have great difficulty reading non-verbal cues and may have difficulty determining appropriate interpersonal space. She said the appellant's mother had confirmed that the appellant had displayed such symptoms.
17 The appellant told Ms Zuin that he had a wide range of sexual interests but denied any specific sexual interest in children. Ms Zuin observed that the appellant appeared to have a strong interest in various deviant sexual practices. She considered it highly likely that in obtaining the child exploitation material and attempting to meet a person he believed to be role-playing a 14-year-old girl the appellant was satisfying sexual deviancy. (We interpose that it appears Ms Zuin accepted the appellant's explanation that he believed he was communicating with an adult.) Ms Zuin said it was highly probable that the appellant lacked the confidence and interpersonal skills to meet women through conventional means and had become increasingly dependent on the internet to interact with other individuals with sexually deviant needs.
18 Ms Zuin described the appellant as presenting as a socially inadequate and psychologically damaged individual with complex psychological issues which require long-term intensive treatment. He appeared to have idiosyncratic personality traits that Ms Zuin considered may prove resistant to change through counselling.
19 The appellant was assessed by Ms Zuin as posing a moderate to high risk of reoffending. In that connection, Ms Zuin noted various extant risk factors including that the appellant had a limited network of prosocial support, he rarely left the house unless he had to, and he had few social outlets, relying on sexually focused social networking sites for social interaction. She strongly recommended that he be assessed for inclusion in an intensive sex offender treatment programme.
The sentencing remarks
20 The sentencing judge found that the appellant believed that the person he was communicating with was a 14-year-old girl, the verdict on count 1 being consistent only with a rejection by the jury of the appellant's contention at trial that he thought the person with whom he was communicating was a person at least 18 years old who was role-playing as a 14-year-old. His Honour found that the appellant had encouraged and sought to persuade her to engage in sexual activity with him, and he had arranged to meet her so that he could engage in sexual activity with her, if not on that occasion, at least at some future time. The appellant had shown no insight into or remorse for his offending, continuing to insist that he thought the person with whom he was communicating was at least 18 years old.
21 On the second count, the primary judge found that the appellant did not intend to disseminate the child exploitation material but intended to keep it for his personal use.
22 His Honour considered that the possession of the child exploitation material and the communications with a person the appellant believed to be a 14-year-old girl demonstrated that the appellant has a sexual interest in underage girls. His Honour observed that the prospect that the appellant might have had sex with a 14-year-old girl emphasised the need for personal deterrence.
23 The sentencing judge noted that the appellant, who was the second eldest of six children, was 24 years old. His parents had divorced in 2014. According to the appellant's mother, the appellant had been physically and emotionally abused by his father. The appellant had exhibited behavioural difficulties from the age of nine but his father would not allow him to be properly assessed. He had also experienced both physical and emotional bullying at school. He left school after year 12 and home at the age of 17. Because of behavioural issues his mother is unable to have him live at home and his grandmother, with whom he has stayed, can manage him for only short periods. He had also lived in a caravan on a farm connected with his father, and with his partner with whom he has a on and off relationship.
24 The appellant enrolled in a commerce and accounting degree course at Curtin University in 2012 but had postponed study in 2013 because of depression. The appellant had told Ms Zuin that he is taking medication for depression.
25 His Honour noted that the appellant had said his life largely revolved around computers and electronics, and that he spent at least 16 hours a day on his computer, the computer being his main form of communication, entertainment and education. His Honour described the appellant as lacking close friends and having few social outlets, relying on sexual networking online sites and rarely leaving the house or interacting with other people.
26 His Honour observed that in the psychological report Ms Zuin had assessed the appellant as suffering severe emotional detachment and exhibiting features commonly associated with Asperger's Syndrome, and had referred to the appellant having deviant sexual interests. The primary judge noted that Ms Zuin considered the appellant to have idiosyncratic personality traits that may prove resistant to change through counselling, and referred to her description of the appellant as a psychologically damaged individual with complex psychological issues which require long-term intensive treatment. He also noted Ms Zuin's assessment that the appellant was at a moderate to high risk of reoffending and her recommendation that he be assessed for inclusion in an intensive sex offender treatment programme.
27 In mitigation, the primary judge took into account the appellant's relatively young age, his lack of any prior record and that he was otherwise of good character. His Honour also accepted that the sexual exploitation material was toward the lower end of the scale of seriousness of such offending and that the appellant did not intend to disseminate the images.
28 Personal deterrence was regarded by the primary judge as an important sentencing consideration, particularly in light of the assessment that the appellant was at a moderate to high risk of reoffending, and the need for general deterrence meant that less weight was to be given to mitigating factors personal to the appellant.
29 The appellant was sentenced to 2 years' imprisonment on count 1 and 15 months' imprisonment on count 2, reduced to 6 months' imprisonment for totality purposes. The sentences were ordered to be served immediately and cumulatively, resulting in a total effective sentence of 2 years and 6 months' immediate imprisonment. The sentence was to take effect from 29 January 2016 to take into account time spent in custody. The appellant was made eligible for parole.
The grounds of appeal
30 The appellant relied upon the following grounds of appeal:
1. The appellant's mental impairment, Autism Spectrum Disorder, was not diagnosed and therefore not known to the Court at the time of the appellant's sentencing, which has resulted in a miscarriage of justice with the result that the wrong sentence has been imposed.
2. The learned sentencing judge erred in imposing an aggregate sentence that was of a length that did not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to all relevant circumstances, including those referable to the [appellant] personally.
On 16 July 2016, Mazza JA granted leave to appeal on ground 1 and referred the application for leave to appeal on ground 2 to the hearing of the appeal.
The disposition of the appeal
Ground 1
31 In support of this ground the appellant sought leave to rely upon additional evidence on the appeal in the form of a report, dated 21 June 2016, of a psychiatrist, Dr Brett. The respondent did not oppose leave being granted, without conceding that there would have been a different outcome if the report had been before the sentencing judge. The appellant's counsel accepted that this ground of appeal turned entirely on Dr Brett's report.
32 It is convenient to go straight to that report. In it Dr Brett noted that the assessment was based on a single clinical interview in Acacia prison with limited collateral information. He noted that for a formal diagnosis of autism, it is ideal to get an early developmental history from his family. Dr Brett considered it unlikely that a full diagnostic assessment could take place in prison.
33 On the basis of his assessment of the appellant, Dr Brett said, relevantly:
3. [The appellant's] history and presentation was consistent with the mental disorder autism spectrum disorder (previously called Aspergers). He described and demonstrated deficits in social-emotional reciprocity. He had difficulties in making conversation, which was evident in the interview and he gave examples of this in the community. He also demonstrated deficits in non-verbal communication displaying a slightly restricted and incongruous affect.
4. He demonstrated a lack of mind theory. This is a core symptom in autism spectrum disorders. This is the inability to put yourself in someone else's shoes or to understand their perspective.
5. He described deficits in developing, maintaining and understanding relationships. This included familial, intimate and non-intimate relationships. He has no friends and no interest in other people. This is a core deficit in autism spectrum disorder and appears to be very significant in his offending behaviour.
6. He finds it easier to communicate with people through his computer. He has met all of his intimate partners through his computer. He spends much of his time on his computer. People with autism spectrum disorder often find it easier to communicate with others this way as they do not need to interpret non-verbal gestures and can use emoticons to show emotions.
7. He appears to have a very limited range of interests and activities. This did not bother him. He enjoyed fixed routine. He found the prison routine good but it should be noted that he would be very vulnerable to exploitation in this setting.
8. I believe that [the appellant's] undiagnosed autism spectrum disorder is extremely significant in his offending behaviours. He is unable to form relationships. He uses the internet to try and make relationships. He has extremely concrete thinking. He is a stickler for rules and does not understand unwritten rules. His belief that the website was an adults only website is an example of how his autistic brain works.
9. …
10. [The appellant's] sexual deviancy was not thoroughly explored. This is well documented in Ms Zuin's report. In my experience in working with young men with autism, their fantasy world can be very different to what occurs in reality. [The appellant] did describe some worrying fantasies. I would recommend that these be explored in individual counselling sessions with someone with experience in autism and sexuality.
34 The test for admitting additional evidence in an appeal against sentence is whether, had the additional evidence been before the sentencing judge, a different sentence should have been imposed: Wheeler v The Queen [No 2] [2010] WASCA 105 [53].
35 It was submitted on behalf of the appellant that Dr Brett's report had identified a causal connection between the appellant's offending and his mental impairment, which affected the appellant's moral culpability for the offending and the weight to be given to general deterrence. Dr Brett had also explained that the appellant would be very vulnerable to exploitation in a prison setting. It was argued that had Dr Brett's diagnosis of autism spectrum disorder been before the sentencing judge it would have resulted in a lesser sentence than the sentence imposed.
36 The relevance of mental impairment in the exercise of the sentencing discretion has been explained in a number of cases in this court, including Thompson v The Queen [2005] WASCA 223; (2005) 157 A Crim R 385; Krijestorac v The State of Western Australia [2010] WASCA 35; Wheeler v The Queen [No 2] [2010] WASCA 105; Gok v The Queen [2010] WASCA 185. This court has referred with approval on a number of occasions to R v Tsiaras [1996] 1 VR 398, 400, where the Court of Appeal of Victoria said that there were at least five ways in which mental impairment may be relevant:
First, it may reduce the moral culpability of the offence, as distinct from the prisoner's legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner's illness may have bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursing as such. Finally, psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.
37 Those principles do not apply only to offenders with a serious psychiatric illness. They apply to any offender who, either at the time of offending or at sentence, has a mental disorder, abnormality or impairment of mental function: Krijestorac [18]; R v Verdins [2007] VSCA 102; (2007) 16 VR 269.
38 It is clear, however, that while a mental impairment will ordinarily be relevant to the sentencing of an offender, it is not the case that it will always result in a lesser sentence. The existence of a mental impairment is simply one factor which must be balanced with other factors to produce a just sentence. The part that it plays in the sentencing of an offender must always depend upon the particular facts and circumstances of the case. In some cases, it may be relevant in more than one respect and not affect the outcome because it weighs in the balance both positively and negatively. Thus, for example, the existence of a causal connection between the mental impairment and the offence might reduce the importance of general deterrence but increase the importance of particular deterrence or of the need to protect the public: R v Engert (1995) 84 A Crim R 67, 71; Wheeler v The Queen [7]. There may also be cases where there is no causal connection between the mental impairment and the commission of the offence, but the mental impairment may be important to considerations such as rehabilitation or the need for treatment outside the prison system: R v Engert. It may also be relevant where as a consequence of the mental impairment imprisonment would weigh much more heavily on the offender than on an ordinary prisoner: Thompson [77]; Tsiaris, 400.
39 Where it is demonstrated that there is a causal connection between the impairment and the commission of the offence, the extent to which the moral culpability of the offender will be lessened will depend upon the extent of the contribution of the mental impairment to the offending. Similarly, the extent to which the issue of general deterrence will be affected depends upon the extent to which the offender is afflicted by the mental impairment: R v Wright (1997) 93 A Crim R 48, 50-51.
40 Dr Brett said in his report that the appellant denied he was sexually interested in children and explained that he thought he was communicating with an adult who was role-playing as a 14-year-old girl. It is an explanation that Dr Brett accepted. Dr Brett went on to express the opinion that it was consistent with how the appellant's autistic brain works that the appellant believed that anyone communicating on the site must be an adult because the website was an adult-only website. It is evident that Dr Brett considered that what he described as the appellant's 'stunning naivety' in that respect was the explanation for the appellant's sexually explicit communications with the child persona. Dr Brett did not discuss in his report the appellant's possession of the child exploitation material.
41 However, in finding the appellant guilty of the offence on count 1 the jury necessarily rejected the appellant's explanation, and the sentencing judge found as a fact for sentencing purposes that the appellant was communicating with a person he believed to be a 14-year-old girl. His Honour also found that the appellant had a sexual interest in young girls. Those findings are not challenged. Dr Brett did not suggest that autism spectrum disorder would explain the appellant's sexually explicit communications with a person he believed to be a 14-year-old girl, his possession of images of young girls in sexually provocative poses or, more generally, his having a sexual interest in young girls. Dr Brett noted in his report that the appellant's sexual deviancy was not thoroughly explored. Dr Brett did not make any assessment of the risk of reoffending. Nothing in Dr Brett's report doubted or undermined Ms Zuin's assessment, accepted by the sentencing judge, that the appellant posed a moderate to high risk of reoffending.
42 It is also apparent that the symptoms of autism spectrum disorder to which Dr Brett referred were in substance described in Ms Zuin's psychological report, in which it was specifically noted that certain of the appellant's attributes were consistent with Asperger's Syndrome. It is evident from his sentencing remarks that the sentencing judge took those matters into account.
43 Apart from its relevance to the offending itself, it was submitted that Dr Brett's report had revealed that as a result of the appellant's autism spectrum disorder, imprisonment would be much more burdensome than it would be for an ordinary prisoner because the appellant would be very vulnerable to exploitation in a prison setting.
44 There is, however, no evidence that imprisonment would be much more burdensome. It is the responsibility of the prison authorities to provide for the welfare and safe custody of prisoners. It is not uncommon for a prisoner, for one reason or another, to be in a position of vulnerability in a prison setting and it is not a problem that the prison authorities are unfamiliar in dealing with. There is nothing in this case to suggest that adequate provision could not or would not be made to prevent the exploitation of the appellant, or that any such provision would mean that imprisonment would be much more burdensome on the appellant than it would be for an ordinarily prisoner. It may be noted that Dr Brett's report observed that the appellant 'does not appear to be unduly distressed at being in prison'. When Dr Brett interviewed him, the appellant had been in custody for about four and a half months.
45 We do not consider that had Dr Brett's report been before the sentencing judge, a different sentence should have been imposed. We would refuse leave to admit the report and dismiss this ground of appeal.
Ground 2
46 Ground 2 was clarified by counsel for the appellant to be a contention that the total effective sentence of 2 years and 6 months' immediate imprisonment infringed the first limb of the totality principle. The individual sentences were not challenged (appeal ts 2).
47 The relevant principles can be shortly stated. An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different to the sentencing judge. It can intervene only if the sentencing judge has made an express or implied material error of fact or law. An allegation that a sentence infringed the first limb of the totality principle is an allegation that the total effective sentence did not bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally, and other reasonably comparable cases. That is, while an express error is not identifiable, error is to be inferred from the outcome.
48 The appellant referred in support of this ground of appeal to HMN v The State of Western Australia [2015] WASCA 128 and The State of Western Australia v Rose [2010] WASCA 31. The State referred to The State of Western Australiav Johnson [2009] WASCA 224; Reid vThe State of Western Australia [2009] WASCA 237; SchapervThe State of Western Australia [2010] WASCA 159; Bechara vThe State of Western Australia [2016] WASCA 77.
49 These cases (among others) support the following well-known principles about offences under s 204B:
(1) adults who make use of the internet to locate and make contact with children so as to engage them in sexual activity can ordinarily, as a matter of fact, expect to receive a term of immediate imprisonment;
(2) as with offences of possession of child pornography, there is a paramount public interest in protecting children from sexual abuse;
(3) the seriousness of these offences will often outweigh the personal circumstances of the offender, even in the case of a first offender;
(4) the extent to which the offender poses a risk to real children and the risk of reoffending are significant considerations in sentencing for an offence of this kind; and
(5) an attempt by an offender to meet with the child or child persona, after a process of grooming, will often indicate a high risk of reoffending against real children.
50 It is sometimes the position when considering whether the totality principle has been infringed that the assistance provided by other cases is limited because of the considerable variation in the nature and circumstances of the offending and the personal circumstances of the offender. So it is in this case. We have, however, read, among others, the cases referred to by the appellant and the cases attached as a schedule to the decision in Rose. Suffice it to say that the cases do not provide support for the proposition that the total effective sentence in this case was disproportionate to the overall criminality involved in all the offences, having regard to all the relevant sentencing factors and principles.
51 In our opinion, this ground of appeal has not been made out. The appellant engaged in sexually explicit communications with a person he believed to be a 14-year-old girl in order to persuade her to engage in sexual activity with him. His conduct was appropriately described by the sentencing judge as 'grooming'. The appellant arranged to meet the child persona so that he could engage in sexual activity with her, if not on that occasion, at least at some future time. As the sentencing judge observed, the prospect that the appellant might have had sex with a 14-year-old girl emphasised the need for personal deterrence. The appellant also had in his possession images of young girls in sexually explicit poses. His Honour's finding that the offending demonstrated that the appellant has a sexual interest in underage girls is not challenged.
52 The appellant has been assessed to be at a moderate to high risk of reoffending and he has shown no insight into, or remorse for, his offending. It may be accepted that the appellant's lack of insight and remorse may at least to some extent be attributable to the appellant's mental impairment and it may also be accepted that the appellant's mental impairment means that general deterrence is to be given less weight. However, it is evident that in the circumstances of this case the existence of that mental impairment increases the need for specific deterrence and the protection of the public.
53 The appellant's relatively young age and previous good character were relevant to mitigation but they are mitigating features that are not uncommon in offending of this nature. He did not have the benefit by way of mitigation that pleas of guilty would have provided.
54 As we have said, there is no challenge to the individual sentences. Viewed in isolation, the term of 6 months' immediate imprisonment on count 2 might be said to be high, given that the material was category one, there were a relatively small number of images and there was no transmission or intention to transmit to others. But, as has often been said, where there is a challenge on totality grounds, the severity of a sentence on an individual count falls to be assessed in light of the sentences imposed on other counts. The real question is whether the total effective sentence infringes the totality principle (Giglia v The State of Western Australia [2010] WASCA 9 [40]). That is recognised by the appellant, who challenges his sentence only on the ground of totality.
55 In any event, count 2 was significant in that it reinforced the inference from count 1, that the appellant had a sexual interest in children. Further, it supported the sentencing judge's finding of a medium to high risk of reoffending.
56 In our opinion, it has not been established that a sentence of two years and six months' immediate imprisonment failed to bear a proper relationship to the overall criminality involved in all the offences, having regard to all relevant sentencing factors and principles. Leave to appeal on this ground should be refused.
Conclusion
57 We would:
1. refuse leave to adduce the additional evidence;
2. dismiss ground 1 of the grounds of appeal;
3. dismiss the application for leave to appeal on ground 2 of the grounds of appeal; and
4. dismiss the appeal.
8
15
1