West, Jarrett v The Queen

[2017] NSWCCA 306

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

West, Jarrett v R [2017] NSWCCA 306

Hearing dates:

10 November 2017

Date of orders:

13 December 2017

Decision date:

13 December 2017

Before:

Simpson JA at [1]; Rothman J at [2]; Hamill J [73]

Decision:

(1) Leave to appeal granted;

 

(2) Appeal allowed;

 

(3) The aggregate sentence imposed upon Jarrett West on 18 November 2016, in the District Court of New South Wales, be quashed and in lieu thereof the said Jarrett West be sentenced to an aggregate sentence of 15 years imprisonment commencing 8 June 2015 and concluding 7 June 2030, with a non-parole period of 10 years imprisonment expiring on 7 June 2025.

 (4) The Applicant shall be first eligible for parole on 7 June 2025.

Catchwords:

CRIMINAL LAW – sentencing appeal – finding by sentencing judge of special circumstances not reflected in shorter non-parole period – non-parole period amended to reflect sentencing judge’s finding, with which the Court on independent assessment agrees

Legislation Cited:

Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Beale v R [2015] NSWCCA 120
Davis v R [2015] NSWCCA 90
House v The King (1936) 55 CLR 499; [1936] HCA 40
Johnson v R (2004) 78 ALJR 616; [2004] HCA 15
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Markarian v R (2005) 228 CLR 357; [2005] HCA 25
R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534

Category:

Principal judgment

Parties:

Jarrett West (Applicant)
Regina (Respondent Crown)

Representation:

Counsel:
C Davenport SC (Applicant)
E Balodis (Respondent Crown)

  Solicitors:
Criminal & Traffic Law Criminal Defence Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent Crown)

File Number(s):

2015/168970; 2015/297802

Publication restriction:

NON-PUBLICATION ORDER IN RELATION TO ANY EVIDENCE WHICH WOULD IDENTIFY OR TEND TO IDENTIFY THE NAMES OF THE COMPLAINANTS

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

18 November 2016

Before:

Berman SC DCJ

File Number(s):

2015/168970; 2015/297802

Judgment

1. SIMPSON JA: I agree with the orders proposed by Rothman J for the reasons given by his Honour.

2. ROTHMAN J: The Applicant, Jarrett West, seeks leave to appeal and, if leave be granted, appeals the sentence imposed upon him in the District Court on 18 November 2016. The sentence imposed upon him occurred after a plea of guilty was entered. The plea of guilty was entered on 29 June 2016.

3. The Applicant had been arrested on 5 June 2015 in relation to offences that occurred earlier that year.

4. The sentencing judge imposed an aggregate sentence of 15 years imprisonment, including a non-parole period of 11 years, commencing on 8 June 2015.

Charges

5. It is necessary to set out the counts or sequences to which the Applicant pleaded guilty and the indicative sentences set by his Honour.

In relation to complainant T

Sequence Number	Offence	Maximum Penalty	Standard Non-Parole Period (if any)	Indicative Sentence
Seq. 1	Sexual intercourse with child 14<16 (contrary to s 66C(3) of the Crimes Act 1900)	10 years imprisonment	No	4 years and 6 months imprisonment
Seq. 3	Sexual intercourse with child 14<16 (contrary to s 66C(3) of the Crimes Act 1900)	10 years imprisonment	No	4 years and 6 months imprisonment
Seq. 5 and 7	Sexual intercourse with child 14<16 (contrary to s 66C(3) of the Crimes Act 1900)	10 years imprisonment	No	4 years imprisonment
Seq. 8	Indecent assault person <16 (contrary to s 61M(2) of the Crimes Act 1900)	10 years imprisonment	8 years	2 years imprisonment, with a NPP of 18 months
Seq. 11	Sexual intercourse with child 14<16 (contrary to s 66C(3) of the Crimes Act 1900)	10 years imprisonment	No	3 years imprisonment
Seq. 12	Sexual intercourse with child 14<16 (contrary to s 66C(3) of the Crimes Act 1900)	10 years imprisonment	No	4 years imprisonment
Seq. 14	Possess child abuse material (contrary to s 91H(2) of the Crimes Act 1900)	10 years imprisonment	No	5 years imprisonment
Seq. 18	Disseminate child abuse material (contrary to s 91H(2) of the Crimes Act 1900)	10 years imprisonment	No	5 years imprisonment
Seq. 19	Produce child abuse material (contrary to s 91H(2) of the Crimes Act 1900)	10 years imprisonment	No	3 years imprisonment

6. Sequence 1 takes account of six offences, being five counts of sexual intercourse with a child between 14 and 16 years of age and one count of indecent assault of a person under 16, each of them relating to complainant T.

In relation to complainant M

Sequence Number	Offence	Maximum Penalty	Standard Non-Parole Period (if any)	Indicative Sentence
Seq. 4	Sexual intercourse with child 10<14 (contrary to s 66C(1) of the Crimes Act 1900)	16 years imprisonment	No	8 years imprisonment
Seq. 5	Sexual intercourse with child 10<14 (contrary to s 66C(1) of the Crimes Act 1900)	16 years imprisonment	No	7 years and 6 months imprisonment
Seq. 6, 7	Sexual intercourse with child 10<14 (contrary to s 66C(1) of the Crimes Act 1900)	16 years imprisonment	No	6 years imprisonment for each charge
Seq. 8	Produce child abuse material (contrary to s 91H(2) of the Crimes Act 1900)	10 years imprisonment	No	3 years imprisonment

7. Sequence 4 takes into account two offences notified on a Form 1, being two counts of an act of indecency with a child under the age of 16 against M.

Grounds of Appeal

8. The Applicant raises two grounds of appeal which are:

Ground 1: The sentence imposed was manifestly excessive;

Ground 2: The non-parole period imposed does not reflect the finding of special circumstances.

Facts

9. It is, unfortunately, necessary to set out the facts of the offending in some detail. There are 15 offences; ten offences against complainant T (a male); and five offences against complainant M (a female).

10. The facts are set out relevant to each of the victims.

Victim T

11. At the time of these offences, Victim T was 14 years of age and the Applicant was 28 years old. They met on a KIK App website entitled "Role Play” about one month prior to T going to the police with his parents, which was 7 June 2015.

12. The Applicant told T, on the website, that he was 20 years old and T told the Applicant that he was 14 years old and informed him of the school that he attended.

13. Sequence 1 occurred in the following circumstances. After the Applicant and T arranged to meet during the day on Saturday, 23 May 2015, T's mother dropped T at his science tutor at approximately 2:25pm. T walked to a location at which the Applicant was parked and sat in the passenger seat, directing the Applicant to a place which was a quiet street near the location.

14. They both entered the back seat, kissed and T felt and played with the Applicant's erect penis before putting it into his mouth. The Applicant did not ejaculate.

15. Sequence 2, a Form 1 matter, not proceeding to conviction, occurred at the same location when T, later, took off his pants and the Applicant sucked T's penis. T did not ejaculate.

16. Sequence 3 occurred when the Applicant stopped performing oral sex on T. T began to perform oral sex on the Applicant. The Applicant ejaculated.

17. One of the Form 1 matters, which is sequence 4 in relation to T and with which the prosecution did not proceed, occurred when the Applicant performed oral sex on T until T ejaculated. The Applicant drove T back to his tutorial.

18. Sequence 5 occurred when an arrangement was made to meet on Friday, 29 May 2015, at about 11pm. T left his family home and walked to the Applicant's car, which was parked nearby.

19. On T entering the car, T and the Applicant kissed for a time and the Applicant showed T a dildo after saying to him: "I have a surprise for you".

20. After rubbing it with lubricant, the Applicant removed T's pants and underwear and inserted the dildo into T's anus, almost completely enclosing the object inside him. T informed the Applicant that it hurt and the Applicant removed it.

21. Another Form 1 matter was the charge that was originally sequence 6 and occurred on the same occasion when T performed oral sex on the Applicant for about 10 minutes. The Applicant did not ejaculate.

22. Sequence 7 occurred when the Applicant inserted the dildo in and out of T’s anus about seven times (at a later time on this occasion). T initially enjoyed it but then felt uncomfortable and requested the Applicant to stop, which he did.

23. Sequence 13 was another of the Form 1 matters that did not proceed to conviction and occurred, on the same occasion, when T performed oral sex on the Applicant until he ejaculated. The Applicant drove T home, arriving about 3am.

24. On Thursday 4 June 2015, arrangements were made to meet on the Saturday night. The Applicant told T to wear his school jumper to the meeting and suggested that T attend the Applicant's home, as the Applicant’s parents were away and the house was otherwise unoccupied.

25. At 11:30pm on Saturday 6 June 2015, T left the family home and was collected by the Applicant outside T's address. The Applicant drove T towards the Applicant’s home, whilst T fondled the Applicant's penis and testicles. The Applicant became erect and asked T to stop because he needed to concentrate on driving.

26. Sequence 8 occurred when the Applicant then proceeded to rub T’s groin over the clothing. The Applicant stopped when he needed to concentrate.

27. Sequence 9, another of the Form 1 matters and did not proceed to conviction, occurred when T and the Applicant arrived at the Applicant’s home, and they went upstairs to the Applicant’s bedroom. T sat in the Applicant's lap and they kissed and undressed and hugged and undressed. The Applicant took photos of T’s naked body.

28. Sequence 10, another Form 1 matter that did not proceed to sentence was when the Applicant began oral sex on T. Further, at that time sequence 11 occurred which was mutual fellatio, suggested by T to which the Applicant agreed.

29. Sequence 12 occurred a few minutes later. The Applicant told T to get onto his hands and knees and T complied. The Applicant applied lubricant to a dildo and started to insert into T’s anus. T’s phone rang and the Applicant removed the dildo.

30. When T answered the phone, he spoke with his brother who enquired as to his whereabouts. T replied that he was at a friend's place, playing computer games. Apparently, T’s parents were concerned about T’s whereabouts, given his young age and they told him they would call the police.

31. The Applicant spoke with T’s parents, insisting he was the father of a friend of T of the same age. The Applicant drove T home and told him to maintain the version of the story told to his parents over the phone. T's parents took T to the police and a report was made, leading to the arrest of the Applicant.

32. During the course of the investigation, the Applicant admitted to being sexually attracted to teenagers of both sexes and said that he felt better able to relate to teenagers than people his own age as he was not "socially active" with his own peers.

33. The Applicant admitted to utilising the Internet to gain access to, to download, to save and to distribute child pornography. The Applicant declined to inform police how young the children were who featured in the images and videos.

34. As a consequence of the foregoing admissions, investigators searched the Applicant's mobile phone and sequence 19 arises as a consequence of finding images of T performing oral sex on the Applicant on the Applicant's mobile phone. This image was apparently taken by the Applicant during his first sexual encounter with T on 23 May 2015.

Victim M

35. Victim M, who as previously stated is female, was born on 13 September 2000 and was aged 12 at the time of the offences. M initially informed the Applicant that she was 14 years of age. Nevertheless, M had informed the Applicant that she was 12 years of age prior to the commission of any of the offences. The Applicant was aged 26 at the time of the offences.

36. First contact between M and the Applicant occurred in 2012, again through KIK. The two communicated over KIK, Skype, Facebook and sent text messages to each other for a period before exchanging personal information. They attempted to meet.

37. Shortly after M's 12th birthday party, the Applicant picked her up in the Applicant’s car. He then drove her to a nearby secluded park, where he kissed her and touched her body and upper legs outside clothing. This gave rise to sequence 1, one of the Form 1 offences, not proceeding to conviction, in relation to M and were to be taken into account in the sequence 4 offence. Following this conduct, M felt uncomfortable and walked home.

38. Sequence 2, also a Form 1 offence, occurred when the Applicant picked M up near her grandparents’ home into which she and her mother had recently moved. M was 12 years of age and in year six at school at the time. The Applicant drove M to a nearby reserve and parked the car. The Applicant kissed M and touched her body and upper legs outside clothing. He then drove her home.

39. Sequence 4 occurred when, in 2012, while M was 12 years of age, she ran away from home and contacted the Applicant to pick her up. The Applicant complied and then drove her to his home. The Applicant's parents were not home.

40. The Applicant provided M with an alcoholic pre-mixed drink and they had penile-vaginal intercourse in his bed. The Applicant did not use a condom and withdrew before ejaculating.

41. Sequences 5, 6 and 7 occurred around the Christmas holiday period in late 2012. The Applicant drove M to a hotel in Campbelltown. They drove into the underground car park and the Applicant insisted that M wait for him in the car, whilst he secured parking.

42. The Applicant returned a few minutes later and took M to the room. Later that night, the Applicant and M had penile-vaginal intercourse. The Applicant did not use a condom and withdrew before ejaculating. M performed oral sex on the Applicant's erect penis, during the encounter and the Applicant performed cunnilingus on M. The Applicant drove M to her house the following morning.

43. The Applicant and M remained in contact, but no further sexual encounter was reported. Following the investigation of these matters, a number of images were located by police on the Applicant's phone. These photographs are the basis for sequence 8 in the offending against M. They were depictions of M performing oral sex on the Applicant in a parked vehicle and in a room, possibly a hotel.

44. The images also depicted the Applicant performing cunnilingus on M in the back seat of the vehicle and in a room; depicted the Applicant's erect penis without a condom, penetrating M's vagina, whilst on a bed; and depicting M penetrating her vagina with a dildo, purchased by the Applicant.

45. The child pornography offences, sequence 14, arise as a consequence of the police seizing the Applicant’s computer, as part of the investigation. The Crown submissions at [36] include a table of the material found on the Applicant's computer hard drive tower, two external hard drives and the mobile phone according to the CETS scale.

46. Sequence 18 is a result of a review of social media through the mobile phone. It identified that the Applicant had engaged in 1,203 conversations, not including deleted data, between 24 September 2014 and 7 June 2015, which disclosed that he distributed significant amounts of child abuse material to other users through this medium. The Applicant also received significant amounts of such material. These were classified at levels one, two, three and four of the CETS scale.

Subjective Circumstances

47. As already indicated the Applicant was in his 20s, during the offending, and was 30 years of age at the time of sentencing. He was born on 28 July 1986. He lived at home, with his parents, in Hammondville.

48. From 2011 until his arrest in 2015, he had been employed in a car parts distributor and had no previous convictions on his record.

49. A report was tendered on his behalf, being a report by Rev Dr Peter Powell of the Pastoral Counselling Institute (Exhibit A on sentence). Dr Powell assessed the Applicant as a person of low risk of reoffending, if he continued to engage in the treatment that he had commenced. Apparently, the Applicant shows some insight into the effects of his offending upon the victims.

Submissions and Consideration

Ground 1: Manifest Excess

50. The appeal in question is an appeal against the aggregate sentence: Beale v R [2015] NSWCCA 120 at [78]. Nevertheless, it is permissible to examine the indicative sentences that have been set by a sentencing judge as a guide in determining whether there has been error in the aggregate sentence that was ultimately imposed. However, it must be remembered that it is the aggregate sentence that is the subject of appeal.

51. There are a number of principles that have been established in relation to determining whether a sentence is manifestly excessive and the requirements on an applicant or appellant to show such excess.

52. First, it is well established and subject to High Court explanation that appellate intervention is not justified simply on the basis that the appeal court, or the judges of the appeal court, would have imposed a different sentence. Nor is it justified simply on the basis that it is markedly different from sentences imposed in other cases.

53. The ground of appeal asserts manifest excess and relies, therefore, upon the statement of the High Court in House v The King (1936) 55 CLR 499; [1936] HCA 40. This involves the Court, when it is unable to identify an error of a particular kind, in being satisfied, on the basis of the outcome of the sentence, that there must have been some misapplication of principle or error of law. In those circumstances the error is manifest.

54. As was made clear by the High Court in Johnson v R (2004) 78 ALJR 616; [2004] HCA 15 (and affirmed in Markarian v R (2005) 228 CLR 357; [2005] HCA 25) sentencing judges must be allowed "as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected".

55. As has been stated on a number of occasions by this Court and the High Court, the Applicant must establish that the sentence was "unreasonable" or "plainly unjust": House v The King, supra.

56. This is a case involving a mature adult, sexually exploiting children after an introduction over the Internet and in circumstances where the Applicant concealed his true age. These are very serious offences.

57. The teenagers in question are at an impressionable age and the law requires that they be safe from exploitation by adults.

58. The sentencing judge did not expressly classify each offence in terms of objective seriousness. Nevertheless, the sentencing judge was dealing with two groups of offences against two young teenagers and, in total, 15 offences. The most severe indicative sentences were at or less than half of the maximum sentence that could have been imposed.

59. The pornography offences alone are sufficiently serious, it would seem, to warrant significant prison sentences and the sentencing judge has fixed a series of indicative sentences and utilised the process of aggregation to deal with the totality of the 15 offences.

60. In my view, it cannot be said that the aggregate sentence imposed is outside the range available to the sentencing judge and the sentence imposed is neither unreasonable nor plainly unjust.

61. The first ground of appeal should be rejected.

Ground 2: Special Circumstances

62. The sentencing judge is extremely familiar with the criminal process and a judge with significant criminal law experience. Section 44 of the Crimes (Sentencing Procedure) Act 1999 requires a judicial officer, who is sentencing an offender, to ensure, subject to a finding of special circumstances, that the non-parole period is at least three quarters of the head sentence (except in identified statutory circumstances where there is no need for a non-parole period). The provision allows the sentencing court to depart from the statutory ratio only in circumstances where the sentencing court decides that special circumstances warrant such a departure.

62. The provision has been described as operating as a fetter or constraint on the sentencing discretion in fixing a lower proportion than the statutory ratio: R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [69]-[70], per Spigelman CJ.

63. In fixing a non-parole period, the same purposes of sentencing are to be considered and a sentencing judge ought to seek to achieve, as much is possible, those purposes. Nevertheless, the non-parole period is the minimum period of actual incarceration necessary and takes account of the fact that parole will be granted only where it accords with the safety of the community. The non-parole period allows the offender to have eligibility for parole for the remainder of the term of imprisonment.

64. It must be borne in mind that the fixing of a non-parole period is not an opportunity to look only at rehabilitation and not the other purposes of sentencing. In fixing a statutory ratio that is less than that prescribed by the legislation, the degree of such adjustment is a matter for the discretion of the sentencing judge.

65. In the aggregate sentence imposed by the sentencing judge, the non-parole period is 73.33% of the head sentence. The judge did not find special circumstances in order to achieve a rounding down of the sentence, or to take into account the effect of an accumulation which would result in a sentence where the non-parole period exceeded 75%. Rather, the sentencing judge found special circumstances because of the need for there to be "lengthy monitoring of the offender's attendance at, and benefit from, sex offending programs in the community".

66. The difference between the imposition of the statutory ratio and the period fixed by his Honour is three months. It is difficult to imagine how that three-month period will make a difference to the length of time for which the offender could undergo and benefit from the sex offending programs.

67. If, as is suggested by the Crown, the sentencing judge considered that a period as insignificant as this was the appropriate figure to take account of the need he identified, I would expect a statement to that effect to be made. Given the criminal experience of the sentencing judge, it is more likely that there has been a miscalculation or arithmetic error involved in the determination of the non-parole period.

68. There has been no criticism of the sentencing judge's finding of special circumstances. It is a finding with which I concur.

69. Having found error, albeit only in relation to the failure of the sentencing judge to give effect to the finding of special circumstances (a finding with which I agree), it is necessary to exercise the sentencing discretion afresh in accordance with the decision of the High Court in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]-[43]; see also Davis v R [2015] NSWCCA 90 at [75]-[90].

70. My conclusion is that a total sentence (15 years) is the appropriate sentence. That is the same sentence imposed by the sentencing judge. However, giving effect to the finding of special circumstances, I would impose a non-parole period of 10 years.

71. I propose that the Court make the following orders:

1. Leave to appeal granted;

2. Appeal allowed;

3. The aggregate sentence imposed upon Jarrett West on 18 November 2016, in the District Court of New South Wales, be quashed and in lieu thereof the said Jarrett West be sentenced to an aggregate sentence of 15 years imprisonment commencing 8 June 2015 and concluding 7 June 2030, with a non-parole period of 10 years imprisonment expiring on 7 June 2025.

4. The Applicant shall be first eligible for parole on 7 June 2025.

73. HAMILL J: I agree with Rothman J.

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Decision last updated: 13 December 2017