Walshe v The Queen
[2020] ACTCA 5
•7 February 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Walshe v The Queen |
Citation: | [2020] ACTCA 5 |
Hearing Date: | 4 February 2020 |
DecisionDate: | 7 February 2020 |
Before: | Elkaim, Loukas-Karlsson and Bromwich JJ |
Decision: | Appeal dismissed. |
Catchwords: | APPEAL – APPEAL AGAINST SENTENCE – Manifest excess – revocation of recognizance release order – fresh offences – imposition of suspended term of imprisonment |
Legislation Cited: | Crimes Act 1900 (ACT) s 65 |
Cases Cited: | Barrett v The Queen [2016] ACTCA 38 |
Parties: | David William Walshe (Appellant) The Queen (Respondent) |
Representation: | Counsel Self-represented (Appellant) J Paingakulam (Respondent) |
| Solicitors Self-represented (Appellant) Commonwealth Director of Public Prosecutions (Respondent) | |
File Number: | AC 17 of 2019 |
Decision under appeal: | Court: Supreme Court of the ACT Before: Burns J Date of Decision: 17 April 2019 Case Title: R v Walshe (No 2) Citation: [2019] ACTSC 137 |
THE COURT:
On 17 April 2019 the appellant appeared before Burns J to be dealt with for breach of a Recognizance Release Order. His Honour revoked the Order and imposed a term of imprisonment of 15 months commencing on 28 February 2019 and expiring on 27 May 2020.
The appellant, by an appeal filed on 15 May 2019, says this sentence was manifestly excessive.
Some background is necessary: On 3 August 2016, following a hearing on 27 July 2016, Burns J sentenced the appellant for two offences (R v Walshe [2016] ACTSC 267).
The first was an offence of using a carriage service for the transmission of child pornography material. This was contrary to s 474.19(1)(a)(ii) of the Criminal Code (Cth), as it then was.
The second was possessing child pornography contrary to s 65 of the Crimes Act 1900 (ACT).
Final orders were made by his Honour on 5 August 2016:
(a)With respect to the ACT charge of possession (CC15/9427), you will be convicted and sentenced to a term of 18 months imprisonment commencing on 30 September 2015 and expiring on 29 March 2017.
(b)With respect to the Commonwealth charge (CC15/9428), you will be convicted and sentenced to term of 28 months imprisonment commencing on 30 March 2016 and expiring on 29 July 2018.
(i) The period commencing on 30 March 2016 and expiring on 29 April 2017 will be served by way of full-time imprisonment, with the balance suspended upon you entering into a recognizance in the sum of $500 to be of good behaviour for 3 years from 30 April 2017 with the following conditions:
i. you accept the supervision of ACT Corrective Services or its delegates for a period of 3 years or such lesser period as deemed appropriate by a supervising officer; and
ii. you undertake such assessments, programs or treatment as directed by ACT Corrective Services, particularly to address issues relating to sex offending.
(c)The aggregate sentence is one of 2 years and 10 months imprisonment commencing on 30 September 2015 and expiring on 29 July 2018. There is also a forfeiture order as requested by the Crown.
There was no appeal from the above orders.
Pursuant to the orders made by his Honour, by 30 March 2017 the appellant had completed the sentence for the possession charge. He was then released as a result of the partial suspension of the term of imprisonment for the Commonwealth charge. Before being released he entered into the Recognizance Release Order contemplated by the original orders.
Following his release, and within the period of the recognizance, the appellant committed two offences. One was a failure to report changes in his personal details. This was said to have occurred between 25 May 2017 and 3 August 2017. The other was a charge that on 2 August 2017 he intentionally possessed child exploitation material, contrary to s 65 of the Crimes Act 1900 (ACT). In the breach proceedings on 17 April 2019 (R v Walshe(No 2) [2019] ACTSC 137) Burns J described the pornography offence in this way:
3.I note with regard to the charge of possession of child pornography, that this charge related to a single image of a child who appeared to be pre-pubescent and approximately 11 to 14 years of age. The image was of this person completely naked, sitting on the floor with her legs folded beneath her. She had slight breast development and no pubic hair. The image was taken from a website, [redacted]. It has been submitted that the website itself does not necessarily indicate that you were attempting to find child pornography. It is, however, accepted that this image was child pornography, and it is further accepted that it was deliberately saved by you to a folder on your computer.
The appellant was charged with the above two offences, he pleaded guilty and appeared for sentence before the Chief Magistrate (as she then was) on 29 January 2019. The sentence imposed for the failure to report charge was three months’ imprisonment. The possession of child exploitation material sentence was five months’ imprisonment. There was a concurrency of two months between the two sentences, producing a total of six months’ imprisonment. The sentence expired on 28 July 2019.
There was no appeal from the sentence imposed by the Chief Magistrate.
Burns J observed that there were a number of options open to him under the provisions of the Crimes Act 1914 (Cth). He set them out as follows:
5. I may take no action. I may impose a monetary penalty of not more than $1,000. I may amend the orders that I made in 2016 so as to extend the period for which you are required to give security and to be of good behaviour, for up to a maximum of five years. I may revoke the Recognizance Release Order and make an order that your remaining period be served as an Intensive Corrections Order. I may revoke the order and deal with you for the offence or offences in respect of the order was made, by ordering that you be imprisoned for the suspended portion of the sentence which I imposed in August 2016.
The appellant does not suggest that his Honour incorrectly described the options available to him. His Honour went through each option:
6.It is not appropriate that I take no action or impose a monetary penalty. Neither of those sentencing options are appropriate with respect to the nature of the present offending. In my opinion, it is not appropriate to amend the order so as to extend the period of the Recognizance Release Order for up to a period of five years. It appears to me that you learned nothing from the sentence that I imposed on you in August 2016. You re‑offended within less than a month after being released on the terms of that Recognizance Release Order, and after having your obligations carefully explained to you. It is also, in my opinion, inappropriate, bearing in mind the nature of the offending and the serious nature of the offence of which you were convicted, to take the alternative of revoking the Recognizance Release Order and ordering that the remaining period be served as an Intensive Corrections Order.
It is evident that the re-offending referred to by his Honour as having occurred within a month of the appellant’s release was a reference to the failure to report changes of personal details charge.
His Honour then, at [7], stated that he thought he should revoke the Recognizance Release Order and impose the suspended term of 15 months’ imprisonment. He backdated the commencement of the term to 28 February 2019 for the following reasons:
7. …In determining when to commence that sentence, I take into account that a number of matters which are relevant to sentencing were taken into account, or indeed I have no doubt were taken into account, by the magistrate. I do not have a copy of the magistrate's sentencing remarks. But, as the prosecution has acknowledged in its written submissions, it is reasonable to infer that the magistrate would have given weight to your earlier criminal history, including the underlying offences with respect to this breach matter. It is also reasonable to infer that in passing sentence, the magistrate would have given weight to the fact that you were on conditional liberty at the time that the breach offending was committed. I therefore intend to backdate the commencement of the 15 months’ sentence which you will be liable to serve from 28 February 2019.
The result of the backdating was to effectively impose a sentence of 10 months’ imprisonment, rather than 15 months, because 5 months was being served concurrently with the sentence imposed by the Chief Magistrate.
The principles applying to whether or not a sentence is manifestly excessive are well‑known. Nevertheless it is worth quoting this summary from Samani v The Queen [2017] ACTCA 23 at [15] – [16]:
15. In Zdravokovic v The Queen [2016] ACTCA 53, the ACT Court of Appeal, at paragraphs [51] and [52], made the following remarks about identifying manifestly excessive sentences:
A sentence appeal alleging manifest excess calls into question what is a quintessentially discretionary decision. Error may be inferred if the sentence is “manifestly excessive” in the sense that it is “unreasonable or plainly unjust”: Dinsdalev The Queen [2000] HCA 54; 202 CLR 321 per Gleeson CJ and Hayne J at [6]. But “manifest excess” is not established just because the appeal court would have imposed a more lenient sentence: R v Ellis (1993) 68 A Crim R 449 at 461 per Hunt CJ at CL; Balthazaarv The Queen [2012] ACTCA 26 at [61].
When deciding whether a sentence is “manifestly excessive”, the legislated maximum penalty that applies to the “worst possible case” must be considered; it provides a “yardstick” for assessing the appropriate penalty: Markarianv The Queen [2005] HCA 25; 228 CLR 357 at [31]. The objective seriousness of the particular offence, the subjective circumstances of the offender, relevant statutory provisions (including the sentencing purposes in s 7 of the Sentencing Act) and any sentencing pattern applicable to the offence type are also important considerations when deciding whether a sentence lies within the available range.
16. In R v AB [2017] NSWCCA 88, the New South Wales Court of Criminal Appeal, at paragraphs [57] and [58], described the principles in this way:
The principles on which an appellate court will determine that a sentence is manifestly excessive or inadequate are well-established. An appellate court is not entitled to interfere with the exercise of the sentencing discretion merely because it would have arrived at a different result: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]. For a sentence to be set aside as being manifestly inadequate, it must be unreasonable or plainly unjust after taking all relevant matters into account: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6], [22]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [58]-[60].
In Barrett v The Queen [2016] ACTCA 38, the Court made this practical observation at [34]:
It is for the appellant to satisfy the Court that, individually and/or collectively, the sentences imposed by the sentencing judge were unreasonable, plainly unjust or outside the available sentencing range.
The complaint here may be summarised in this way: Notwithstanding that the option taken by his Honour was available to him, the result was to produce an unjust sentence, in particular against the background that the appellant had received, from the Chief Magistrate, a sentence of six months’ imprisonment for the two offences which constituted the breach. Further the appellant submitted that Burns J “took an unfair view of the facts”.
It is apparent from his reasons, in particular at [6], that his Honour was particularly influenced by the commission of a further offence so soon after the appellant’s release under the Recognizance Release Order. While at first sight a failure to report might not be viewed as a matter of particular seriousness, the details in this case negate that impression. The Chief Magistrate gave details of the offence:
I note that the charge in respect to this offence relates to the period from 25 May 2017 to 3 August 2017, and therefore puts your offending approximately within one month of your release from prison.
At the time police executed their warrant, they found that you were using a search engine which makes it difficult to track use and a VPN, the primary purpose of which is to mask or hide internet identities. The use of a VPN is not prohibited, but there was an obligation upon you to report identities, and I’m satisfied that the use of these tools to some degree exhibits a sophistication in relation to your subsequent access to child exploitation material. It is clear why there is an obligation to report those identities. They are not comparable, for example, to internet identities for banking, and I’m satisfied that this amounts to a significant breach of your obligations and one which would fall certainly toward the medium range of offending for an offence of this type.
As stated by the Chief Justice in R v Eyles [2018] ACTSC 318, at [19], “all offences of failing to report details are serious offences”.
It is important to recognise here that the original offences involved the pornographic photography of children. The fresh offences, which took place either very soon or reasonably soon after the appellant’s release from custody again either involved a picture of a child or, in respect of the reporting breach, a means of access to child pornography.
As observed by Burns J, the appellant had patently not learned from his incarceration. A fundamental purpose in putting a person in prison is to punish that person for the offences that he has committed. Punishment involves a recognition of wrongdoing which the prisoner will hopefully appreciate, and which may steer him, or her, from previous criminal practices. This was not the case here and it is apparent that his Honour was motivated by the appellant’s early return to criminal behaviour, in particular criminal conduct involving children.
The appellant was concerned to emphasise two matters: The disproportionate nature of the sentence imposed by Burns J and the duplication of his punishment. In respect of both of these matters the appellant failed to recognise that he was being dealt with for the breach of the Recognizance Release Order and not for the new offences themselves.
While the punishment given by the Chief Magistrate for the two new offences was relevant (Sweeney v Corporate Security Group [2003] SASC 324 at [162]), it was not the dominant feature in sentencing. Much more important, also as stated in Sweeney at [169], was this:
When he committed the breaching offence, he did so, clearly taking the risk that it might have the effect of subjecting him to the term of imprisonment which had been previously ordered.
Against this background it cannot be said that the sentence imposed by the primary judge was plainly unjust. A finding of manifest excess must therefore be rejected.
The Court makes the following order: The appeal is dismissed.
| I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Elkaim, Justice Loukas-Karlsson and Justice Bromwich. Associate: Date: 7 February 2020 |
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