Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Application for leave to appeal against sentence - Sexual offences - Indecent recordings of children - Possession of child exploitation material - Section 9AA discount for pleading guilty - Whether pleas entered at first reasonable opportunity - Whether discount manifestly inadequate - Whether sentencing judge disregarded reports - Whether aggregate sentence infringed first limb of the totality principle - Whether sentencing judge failed to take into account hardship to the appellant's family

Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1

Anderson v The State of Western Australia [No 3] [2014] WASCA 190

Beins v The State of Western Australia [No 2] [2014] WASCA 54

DO v The State of Western Australia [2013] WASCA 218

House v The King [1936] HCA 40; (1936) 55 CLR 499

KAT v The State of Western Australia [2017] WASCA 11

Kobeissi v The State of Western Australia [2016] WASCA 188

Phan v The State of Western Australia [2016] WASCA 201

PNS v The State of Western Australia [2016] WASCA 174

Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508

Saraceno v The State of Western Australia [2015] WASCA 100

1 REASONS OF THE COURT: This is an application for leave to appeal against sentence.

2 The applicant pleaded guilty to three counts of making indecent video recordings of children, and one count of being in possession of child exploitation material. The counts contained on the indictment were as follows:

1. Between 2 November 2010 and 12 February 2013, the appellant indecently recorded (five female children, who we will refer to as SK, PR, BA, BK and SJ), each a child under the age of 13 years, by making indecent video recordings of them contrary to s 320(6) of the Criminal Code (WA).
2. Between 30 January 2011 and 12 February 2013, the appellant indecently recorded (four female children, who we will refer to as PJ, PG, PR and SK), each a child of or over the age of 13 years and under the age of 16 years, by making indecent video recordings of them, and that those children were then under his care, supervision or authority, contrary to s 321(6) and s 321(8)(b) of the Criminal Code.
3. Between 27 September 2013 and 4 January 2014, the appellant indecently recorded PJ, a child of or over the age of 16 years who was then under his care, supervision or authority, by making indecent video recordings of her contrary to s 322(6) of the Criminal Code.
4. On 8 July 2015, the appellant had in his possession child exploitation material in the form of computer data contrary to s 220 of the Criminal Code.

3 The appellant was sentenced to 13 months' imprisonment on count 1, 16 months' imprisonment on each of counts 2 and 3, and 8 months' imprisonment on count 4. The sentencing judge ordered that the sentences on counts 2 and 3 be cumulative and that the sentences on counts 1 and 4 be concurrent, thus producing a total effective sentence of 2 years and 8 months.

4 The appellant seeks leave to appeal against the aggregate sentence on four grounds which assert that the sentencing judge made both express and implied errors. For the reasons that follow none of the grounds of appeal has a reasonable prospect of succeeding. In those circumstances, leave to appeal must be refused, with the consequence that the appeal is dismissed.

6 On 8 July 2015, police executed a search warrant at the farm where the appellant lived with his wife and children. During the search, police seized a computer hard drive that was found in the appellant's bedroom. The appellant admitted ownership of the device. He said it contained personal files. Upon analysis, the hard drive was found to contain a large number of recorded videos, surreptitiously made by the appellant using a hand-held video camera. These videos depicted young girls who were present at his property and under his care, supervision or authority.

7 Two hand-held video cameras were also located during the search of the appellant's house. He admitted that the cameras belonged to him. He stated that nobody else used them.

8 The video recordings found on the hard drive were indecent in nature in that the zoom feature of the camera was used to record the groin, breasts and buttocks of the girls, often while they were wearing their bathers, playing in the swimming pool or on a trampoline in the backyard of his property. The videos were saved on two folders on the hard drive, one of which was dedicated to videos of one of the victims, PJ. On average, the videos were about 30 seconds in duration. Often a series of short videos of a similar character had been recorded of the same occasion but at different times throughout the day.

9 Initially, the appellant was charged with an offence in relation to each video. However, these charges were later substituted with ones that grouped the videos by reference to the age of the victims at the time they were taken. It was to charges in this form that the appellant pleaded guilty. Several of the children were the subject of videos taken over a number of years and, accordingly, more than one charge relates to them.

10 Count 1 relates to eight video recordings of five girls that were taken on six occasions between 2 November 2010 and 12 February 2013. The girls were aged between 9 and 12 years at the time. At this time, the appellant was aged between 39 and 42 years old.

11 On 2 November 2010, the appellant made two indecent recordings of SK when she was aged 11. The first was made whilst she was playing in the appellant's swimming pool, wearing a T-shirt and bikini. He recorded SK in slow motion while she climbed out of the pool, and focused on her groin. Six similar files were also recorded by the appellant. The second recording was made while SK was lying face down wearing a T-shirt and bikini. The appellant used the camera to focus on her buttocks. He then moved to a different location, directly behind SK, and used the camera to zoom in and out on her buttocks. Eight further files were recorded of the same occasion.

12 On 5 March 2012, the appellant again recorded SK, who was then aged 12. On this occasion SK was sunbathing in a bikini near a trampoline. He filmed SK from the window of his upstairs bedroom, using the camera to zoom and focus on her groin and to scan up and down her body. A further 15 files were recorded on the same occasion.

13 PR was indecently recorded by the appellant on one occasion on 6 February 2011, when she was aged 12. At this time PR was swimming in the appellant's swimming pool wearing a bikini. He used the camera to zoom and focus on her buttocks and groin. A further 27 files were recorded of the same occasion.

14 BA was indecently recorded by the appellant twice on 4 November 2011, when she was aged 10. The first recording occurred whilst BA was playing in the appellant's swimming pool. She was wearing bathers, and the appellant filmed her through window blinds in a dark room opposite the swimming pool. He used the camera to zoom in and focus on her groin and buttocks. A further four files were recorded on the same occasion. A second recording was made later the same day whilst BA was playing on a trampoline, wearing her bathers. The appellant filmed her from the window of his upstairs bedroom. He used the camera to zoom and focus on her buttocks. A further seven files were recorded on the same occasion.

15 BK was indecently recorded by the appellant on one occasion on 21 April 2012, when she was aged 9. On this occasion BK was playing with dolls inside the appellant's house. He used the camera to zoom in on her buttocks, and remained focused on her buttocks when she moved.

16 SJ was indecently recorded by the appellant on one occasion on 12 February 2013, when she was aged 9. On this occasion, SJ was wearing bathers while she sat on a couch inside the appellant's house playing video games. The appellant focused the camera on her face before moving to her groin area, where the camera lingered before zooming out.

17 Count 2 related to 16 occasions between 20 January 2011 and 12 February 2013, when the appellant indecently recorded four girls who were then aged between 13 and 15 years. At this time, the appellant was aged between 40 and 42 years old.

18 PG was indecently recorded on two occasions when she was aged 14. On 30 January 2011, the appellant filmed PG through window blinds in a dark room opposite his swimming pool and used the camera to zoom in and focus on her buttocks. She was wearing a bikini at the time. On 5 February 2011, the appellant again used the camera to zoom in and focus on PG's groin and breasts whilst she was wearing a bikini. He continued to follow her when she moved out of frame. There were 12 other files of her recorded on this occasion.

19 PJ was indecently recorded on 12 occasions when she was aged between 13 and 14 years old. On 13 and 16 February 2011, the appellant recorded PJ when she was on a family holiday in Kalbarri. He used the camera to zoom in on her groin and breasts whilst she was in the lounge room of a house. The appellant was also visible in these recordings.

20 On 5 March 2012, the appellant recorded PJ whilst she was in her underwear playing table tennis. He used the camera to zoom in on her groin area. Two further recordings were made on the same occasion, including a slow motion video.

21 On four occasions the appellant made recordings of PJ whilst she was getting changed in the bedroom of the appellant's 7-year-old daughter. These recordings were made on 1 May, 11 and 13 August and 7 November 2012, when PJ was aged between 14 and 15 years old. On each occasion the appellant entered the bedroom and discreetly placed a hand-held video camera opposite the sliding door mirror of a built-in wardrobe. This was done so that the camera could record the reflection of PJ in the mirror. Within minutes of the camera being set up and activated PJ entered the bedroom with the appellant's daughter wearing bathers. The girls undressed in front of the mirror. PJ's reflection in the mirror was recorded by the camera. She was completely naked on these occasions, with her breasts, buttocks and genital area exposed. On each occasion the camera was retrieved by the appellant after PJ had left the room.

22 On 22 June 2012, and on two occasions between 1 December 2012 and 30 January 2013, the appellant indecently recorded PJ whilst she played video games at his house. She was aged 15 at this time. He used the camera to zoom in and focus on her groin or buttocks, both from behind and above her. Several files were recorded on each occasion.

23 On 14 January 2013, the appellant again recorded PJ whilst she was swimming in his pool wearing a bikini. On this occasion the appellant concealed himself behind a wall. He used the camera to zoom in on her buttocks and groin when she climbed out of the pool. Eight further files of a similar character were made on this occasion.

24 On 25 January 2013, the appellant recorded PJ whilst she rinsed herself with a hose whilst wearing a bikini. The appellant again concealed himself behind a wall. He used the camera to zoom in on her buttocks and scan up and down her body. Two further files of a similar character were made on this occasion.

25 PR was indecently recorded by the appellant on one occasion on 18 November 2011, when she was aged 13. On this occasion PR was playing near a trampoline whilst wearing a bikini. The appellant used the camera to zoom in and focus on her buttocks and groin. The camera followed her when she moved out of frame. Three further files were recorded on the same occasion.

26 SK was indecently recorded by the appellant on one occasion on 12 February 2013, when she was aged 13. On this occasion SK was playing near a trampoline whilst wearing a bikini. The appellant filmed SK from the window of his upstairs bedroom. He used the camera to zoom in and focus on her buttocks and groin and scanned the camera up and down her body. Similar footage was obtained of SL a short time later from a different location on the ground floor.

27 Count 3 related to five occasions between 27 September 2013 and 4 January 2014 when the appellant made six indecent recordings of PJ, who was then aged 16. PJ was, at these times, under the appellant's care, supervision or authority. The appellant was aged between 42 and 43 years old at the time.

28 Between 27 September and 15 October 2013, PJ was indecently recorded jumping from a roof into the appellant's pool whilst wearing a bikini. He used the camera to focus and zoom in and out on her buttocks. Five further recordings were made on the same occasion.

29 Between 1 December 2013 and 30 January 2014, the appellant indecently recorded PJ whilst she played a video game whilst wearing a yellow bikini and later when she played in his swimming pool. He used the camera to zoom in and focus on her buttocks. Seven further recordings of a similar character were made on the same occasion. On the same date he recorded PJ throwing bottles in a junkyard on his property. He used the camera to focus and zoom in on her buttocks. He was heard to say, 'I got that', apparently referring to the activity in which PJ was involved, though the camera was focused on PJ's buttocks at the time. In one instance the appellant pointed the camera up PJ's shorts.

30 On 18 December 2013, the appellant indecently recorded PJ whilst she was dancing to music in a bedroom whilst wearing a bikini. He zoomed in and focused on her buttocks, groin and breasts. Six further files of a similar character were recorded on the same occasion.

31 On 4 January 2014, the appellant entered his daughter's bedroom, where he discreetly placed a hand-held video camera opposite the mirror of the wardrobe, with the intention of recording PJ whilst she was naked. The appellant's face was visible in the recording, both when he set up the camera and later when he retrieved it. PJ was recorded whilst naked with her breasts and buttocks exposed.

32 Count 4 related to possession of 216 images of child exploitation material. These images, which depicted girls aged between 8 and 15 years, were recovered from the hard drive on which the indecent recordings were found. A large quantity of adult pornography was also found on the hard drive.

33 The child exploitation images were categorised as follows:

(a) 202 images in category 1 (depictions of children with no sexual activity, including nudity, surreptitious images showing underwear, nakedness, sexually suggestive posing, explicit emphasis on genital areas);

(b) one image in category 2 (non-penetrative sexual activity between children);

(c) two images in category 3 (non-penetrative sexual activity between children and adults);

(d) 11 images in category 4 (penetrative sexual activity between children or between children and adults, including cunnilingus and fellatio).

34 Most of the category 1 images depicted children aged between 8 and 15 years posing in a sexually suggestive manner in their underwear or bathers, or undressing. Twenty-four of the images depicted nudity, and six depicted semi-nude children.

35 The material in categories 3 and 4 depicted 13 - 15-year-old girls engaged in sexual activity with teenage boys (namely fellatio and unprotected vaginal-penile penetration) and with each other (namely kissing). The child exploitation material was saved into four specific folders with the file names 'L000PP', 'teennss', 'virg' and 'youg'.

36 On 10 July 2015, the appellant was arrested and participated in an electronic record of interview, but declined to comment on the allegations. He had, however, made some admissions regarding his ownership of the hard drive and cameras at the time of the search.

37 The appellant was 46 years old at the time he was sentenced. He is married with two teenage children. He was educated to year 10 but struggled with dyslexia at school. After leaving school he worked in the hospitality industry and in nightclubs. As a young adult he developed a drug addiction, which he later overcame.

38 The appellant is from a farming family and returned to work on the family farm at the suggestion of his mother. He inherited the farm in 2004 and has run it as the family business since that time.

39 The appellant's family has long-standing links to the farming community in which they live. The families of the victims were well-known to the appellant, and one of the victims was his goddaughter. Since the offences have come to light the appellant and his family have been ostracised by the local community. There have also been a number of incidents where damage has been caused to property at the farm. The appellant believes this to be a response to his offending.

40 After the appellant was charged and released on bail he was unable to return to the farm due to concerns by the Department for Child Protection in regard to his daughter. As a consequence the appellant lived in a Perth suburb with his mother. A risk assessment was undertaken and objections to the appellant returning home to the farm were withdrawn. In reports prepared at that time the appellant was said to have accepted his offending and expressed remorse. He attributed some of his conduct to an acknowledged inappropriate infatuation with one of the victims.

41 The appellant commenced psychological counselling on a voluntary basis soon after his arrest, on 16 July 2015. Between that date and 22 February 2016, he attended nine appointments. He also participated in 27 sessions of a programme and saw other psychologists for the purposes of preparing reports. The appellant continued attended psychological counselling sessions whilst he was living on the family farm. This necessitated him travelling to Perth, including during times of seeding and shearing, when it was difficult to leave the farm. He successfully completed the programme, and a report in that regard stated that he was able to demonstrate a heightened level of empathy for the children involved and that he had identified coping strategies to ensure that he does not reoffend. One psychologist said that the offending conduct could be attributed to stress, an addiction to pornography and difficulties arising from the appellant's childhood, including what was described as sexual abuse from an older girl when he was aged 12. He was assessed as being of low to no risk of sexually reoffending.

42 The appellant had a large number of favourable character references. These showed that he continued to be well regarded by some members of the community and his family. Prior to the revelation of the offences he had been active in the local community. He was described as a hard worker and a good husband and father. He continued to have the support of his wife and family. He did have a prior criminal record, but it was of a relatively minor nature.

43 It was said that the appellant's farm was large and that he worked very long hours to maintain it. It was said that, 'One can only imagine the difficulty if he was to be incarcerated as to the affect upon that business' (ts 32). It was submitted that if the appellant was imprisoned his wife would struggle to keep the farm. This was not relied upon as an exceptional circumstance, though it was said that the impact of imprisonment would weigh more heavily upon the appellant than it might on some others (ts 33).

44 The appellant was initially charged by police on 10 July 2015 with eight charges of indecently recording relating to the four instances where he placed the camera surreptitiously in the bedroom, recording PJ and his daughter. He told a psychologist that he did not deny that he had created those recordings, however he said that whether he pleaded guilty would depend on what further charges eventually ensued. Subsequently, the appellant was charged with an additional 46 charges of indecent recording and a charge of possession of child exploitation material. A request was made by the appellant's lawyer to view the recordings, and that occurred on 24 December 2015.

45 On 14 March 2016, the State invited the appellant to consider making a plea offer to the State. For this purpose, a schedule was provided setting out the date of the alleged recordings and a description of them. The State submitted that this was the first reasonable opportunity for the appellant to indicate a plea.

46 On 11 April 2016, the appellant's solicitor advised the State that the appellant would not be in a position to respond to the invitation until further disclosure was received. At that time the prosecution brief was incomplete. In particular, statements were required from the parents of the victims formally identifying them and their ages. At this time, the State advised that if the appellant delayed in indicating his pleas the State would be required to obtain further evidentiary material. The State highlighted that this would likely cause distress to the parents of the children in having to view the images. It was also said that delay would significantly diminish the benefits to the State resulting from any subsequent plea.

47 On 3 May 2016, the appellant's solicitor advised the State that the appellant had instructed them that he wished to plead not guilty to the charges. In these circumstances, the State proceeded on the basis that the matter would go to trial. Further investigations were requisitioned. The parents viewed the recordings of the children and statements were obtained.

48 On 27 May 2016, the appellant's counsel advised the State that there was a significant possibility of a resolution. However, a number of issues were raised, including the identity of the person who used the camera. Counsel requested that the State speak to witnesses to identify other potential users of the video camera. This request was declined on the basis of the strength of the existing evidence. Negotiations continued. This included defence counsel raising the possibility of an alibi in respect of offences alleged to have occurred in January 2012, and a suggestion that videos taken in Kalbarri could have been taken by another person. As a result, the State conducted further inquiries to negate this possibility. It should be noted that in one of the videos taken in Kalbarri the appellant is visible.

49 Ultimately, the State accepted pleas of guilty to the four charges contained on the indictment. These rolled up 31 out of the 55 charges originally laid by the police. Pleas to these four counts were first indicated by the appellant's counsel on 1 August 2016.

50 In these circumstances, the State submitted to the sentencing judge that the pleas could be characterised as moderately early, but certainly not at the first reasonable opportunity. It was submitted that the value of the pleas was diminished by the investigations that were required as a result of issues raised on the appellant's behalf. In particular, the State referred to the need for the parents of the victims to view the videos and provide witness statements (ts 47).

51 There was a suggestion by the appellant's counsel that the pleas spared the victims the ordeal of having to give evidence. However, the State pointed out that this would never have been necessary. Witness statements were not taken from the victims and they were not interviewed by the police. The State's case relied upon the parents' evidence and their formal identification of the children in the videos.

52 The State also referred to the strength of the prosecution case. All of the relevant material was found on a hard drive located in the appellant's bedroom in the house where he lived. He admitted to police that the hard drive belonged to him. The recordings were almost all made at the same easily identifiable location and of children who could be readily identified as close friends of the family. Perhaps most significantly, the appellant was visible in four of the recordings and audible on a number of others. There was also evidence that the appellant had inadvertently provided another person with a similar recording from his computer. That was how the matters first came to light. The State submitted that, in light of this, the prosecution case was a very strong one and that this was a relevant factor in assessing the value of the pleas.

53 The defence submitted that as a result of the appellant's lawyers viewing the images, the total number of images relied upon in respect of count 4 was reduced. It was, however, accepted that a dispute in this regard could have been dealt with by a plea of guilty to count 4 and a trial of issues. It was also submitted that the appellant's reluctance to enter pleas of guilty to the initial charges was that 'his whole world [was] falling apart', and that he was 'waiting on legal advice' (ts 52). It was said that an examination of the recordings by the appellant's lawyers resulted in the prosecution proceeding in respect of a lesser number. However, it was accepted that it was open to the appellant to have pleaded guilty at an earlier stage to charges that related to recordings that were not the subject of dispute (ts 55). It was also accepted that the prosecution case in respect of the matters to which the appellant ultimately pleaded guilty was very strong (ts 55).

54 Notwithstanding the above matters, it was not disputed that the appellant did enter pleas of guilty in the Magistrates Court and was committed for sentence to the District Court. The matter was never listed for trial. Ultimately, defence counsel accepted that the pleas in this case could be described as early, though not made at the first reasonable opportunity (ts 57).

55 The sentencing judge noted that the offending in this case was 'very persistent'. There were multiple victims, some of whom were recorded a number of times. The offending took place over a period of almost three years. His Honour said that the recordings were made and kept so that the appellant could indulge a voyeuristic tendency and to satisfy his sexual interest in young girls.

56 His Honour said that there was significant premeditation and planning involved in a number of the incidences of recording. He referred to occasions when the appellant had concealed the camera in his daughter's bedroom. He said that the recordings were made in serious breach of trust because the children had come to the appellant's house to play with his children. The parents of the victims allowed them to go to the appellant's house and be supervised by him.

57 His Honour referred to victim impact statements from three of the victims. There was reference in these statements to the victims suffering social anxiety and a loss of a sense of security. The victim of the most intrusive and indecent recordings had been stunned by the revelation of what the appellant had done. She became depressed and anxious and suffered panic attacks. Though she has sought counselling, she continues to be troubled by insecurity and unhappiness. Her studies have been badly affected.

58 His Honour referred to the appellant's personal history, and his efforts towards rehabilitation. His Honour said that he did not find the attempts to ascribe a cause to the offending particularly persuasive, and he was not inclined to give the reports much weight in that respect. However, in saying that, he noted that even if they were wholly accepted, they did not, by seeking to explain the offending, offer much that was mitigating. However, his Honour said that:

Of more importance is the fact that you've made efforts with some degree of success to address the attitudes that led to this offending and the State does not challenge the fact that, as a result, you are at low risk of reoffending (ts 63).

59 In regard to the pleas of guilty, his Honour said that these were not pleas at the first reasonable opportunity. He said that 'they came at the time of committal to this court for sentencing after the State had been obliged to provide considerable disclosure, including getting an identification of the victims from their parents, requiring those parents to look at at least some of the recordings that you made' (ts 64). His Honour also referred to the degree of likelihood that the appellant would have been convicted in any event, as well as the kinds of witnesses who had been spared giving evidence and the nature of the testimony that they would have had to give. His Honour said that given the evidence, the appellant's conviction was essentially a foregone conclusion. For all of these reasons, he concluded that the appropriate discount was one of 13%.

60 His Honour referred to the appellant's favourable references and his ostracism by the community. In regard to the suggestion that the appellant had been subjected to vigilante action, and that this could be viewed as a mitigating factor, his Honour noted that there had been no physical injury and that any property damage or breach of the peace would warrant a strong response from the law, regardless of any motive or reason underlying it. Having said that, his Honour noted that there was little evidence other than a reliance on coincidence to show a connection between the appellant's offending and the incidents of property damage and theft that had been referred to. As regards the fact that neighbours had shunned or boycotted the appellant and his family, his Honour noted that this could hardly come as a surprise. This was an understandable and foreseeable response to the offending once it came to light. However, his Honour did acknowledge that the fact that the appellant had suffered public shaming meant that it was most unlikely that he would reoffend in a similar way and the need for the sentence to reflect personal deterrence was reduced to a significant degree (ts 66).

61 The voluntary efforts towards rehabilitation and the continuing support of the appellant's family were also relevant. His Honour accepted that the risk of reoffending by the appellant was low and that this, too, reduced the need for personal deterrence.

62 In regard to the impact that imprisonment would have on the appellant's family and farming interest, his Honour said that the submission had been made with a 'very high level of generality' (ts 66). His Honour said, 'Your farm appears to be a large commercial operation and you hire people to assist. There is no evidence as to what your absence might really mean, and while I have regard to these circumstances in a general sense they are not, in my view, worthy of significant credit as mitigation' (ts 66).

63 His Honour noted that offences of possession of child exploitation material ordinarily attract sentences of immediate imprisonment. He said that the creation of indecent video recordings was a more serious kind of offending because it goes beyond simply collecting or curating indecent material, and involves the actual creation of it. He noted that the child exploitation material covered by count 4 was less serious than some other cases because of the relatively low number of images and the few images in the more serious categories.

64 His Honour came to the view that only sentences of immediate imprisonment were an appropriate reflection of the seriousness of this offending. He took the totality principle into account by making the sentences on counts 1 and 4 concurrent with those on counts 2 and 3. He gave specific consideration to the possibility of a suspended sentence. He concluded that, notwithstanding the appellant's good antecedents, his pleas of guilty, remorse and efforts towards rehabilitation, a suspended sentence would not reflect the nature, gravity and extent of the offending. He ordered that the appellant be eligible for parole.

1. The sentencing discretion miscarried when the learned sentencing judge determined to award the appellant other than a 25% discount pursuant to s 9AA of the Sentencing Act 1995 (WA);

1.1 in all the circumstances the pleas of guilty were entered at the first reasonable opportunity;

1.2 in a proper exercise of the sentencing discretion it was not reasonably open to the sentencing judge to impose a discount of only 13%.

1. The sentencing discretion miscarried when his Honour determined, over objection, to disregard for sentencing purposes the content of reports furnished by the appellant, when there was no reasonable basis for that exclusion.
2. The learned sentencing judge erred in imposing a total effective sentence that infringed the first limb of the principle of totality having regard to the overall criminality involved in the various offences, when viewed in their entirety and in all the circumstances of the case, including those referable to the appellant including his efforts at rehabilitation.
3. His Honour erred when he determined the appellant would not suffer hardship in regards to his business;

4.1 it was reasonably open to find the appellant's business was a commercial operation.

Ground 1 - the s 9AA discount

66 Section 9AA of the Sentencing Act 1995 (WA) provides that if a person pleads guilty to an offence the court may reduce the head sentence in order to recognise the benefits to the State and to any victim or witness to the offence resulting from the plea. The head sentence is the sentence that the court would have imposed if the offender had been found guilty after a trial, and before taking into account any mitigating factors. The earlier in the proceedings that the plea is made, the greater the reduction in the sentence may be. However, a court cannot allow a discount under this provision of more than 25%. The maximum discount of 25% is reserved for those cases where the offender pleads guilty or indicates that he or she will plead guilty at the first reasonable opportunity.

67 This court has considered the scope and effect of s 9AA of the Sentencing Act in a number of cases, most recently KAT v The State of Western Australia [2017] WASCA 11. The extent of any reduction is amenable to appellate review on the ground of manifest excess or manifest inadequacy: Kobeissi v The State of Western Australia [2016] WASCA 188 and Phan v The State of Western Australia [2016] WASCA 201.

68 The meaning of the phrase 'first reasonable opportunity' was considered in Rossi v The State of Western Australia [2014] WASCA 189; (2014) 47 WAR 508. In that case, McLure P (with whom we agreed) said that the first opportunity for an accused to plead guilty to a charge for an indictable offence is after initial disclosure has been made under s 35 of the Criminal Procedure Act 2004 (WA), including a copy of the charges and the statement of material facts. A plea entered at this stage is known as a 'fast-track' plea. Her Honour then went on to note that:

However, the first opportunity is not necessarily the first reasonable opportunity to enter a plea of guilty. Whether or not it is requires an objective assessment, having regard to all relevant circumstances in the particular case, as to whether it would have been reasonable for the accused to have pleaded guilty on an earlier occasion [53].

69 In Beins v The State of Western Australia [No 2] [2014] WASCA 54 and Abraham v The State of Western Australia [2014] WASCA 151; (2014) 244 A Crim R 1, this court held the strength of the State case can be taken into account under s 9AA(2) of the Sentencing Act. A finding that a plea of guilty was entered at the first reasonable opportunity does not require that the maximum discount of 25% be imposed because, even in that circumstance, the discount may be reduced having regard to the strength of the prosecution case.

70 The ground is flawed. It wrongly assumes that a finding that the pleas of guilty were entered at the first reasonable opportunity would have mandated a 25% discount. Clearly that is wrong in circumstances where it was accepted, both in the sentencing proceedings and at the hearing of the appeal, that the prosecution case was an extremely strong one. That was a factor which could justify reducing the discount.

71 In any event, it was not accepted by the prosecution that the pleas had been entered at the first reasonable opportunity. It was ultimately accepted on behalf of the appellant that this was correct, though it was maintained that the pleas were nonetheless early and were deserving of a substantial discount. In these circumstances the sentencing judge was required to make an objective assessment of whether the pleas could have been entered at an earlier stage than they were.

72 It was submitted that the appellant always intended to plead guilty and that this was made known to the prosecution. The information before the sentencing judge was to the contrary. In May 2016, the appellant's lawyers advised that he intended to plead not guilty. This was done notwithstanding that the State advised that this would mean that further statements would need to be obtained, including statements from the parents of the victims.

73 It is true that the number of images in respect of count 4 was reduced from the original number alleged. But there was always a number of those images that were undisputed as being child exploitation material. As the sentencing judge pointed out, it was open to the appellant to plead guilty to this charge and dispute the number of images involved. That was an option that he chose not to take.

74 In regard to counts 1 - 3, it is true that the appellant was originally charged in respect of a greater number of video recordings. It is not entirely clear why the number of recordings covered by the charges was reduced. What is clear is that the recordings that are covered by the counts were always the subject of charges, and that it was always open to the appellant to accept his guilt in respect of those matters. This is a relevant consideration in assessing the timing of the pleas, and recognising that it is not unreasonable for an accused person to obtain legal advice before entering pleas to any charges where there is a question whether some will proceed.

75 It is not unusual for a large number of charges to be rolled up into fewer counts on an indictment where there is an agreement to plead guilty. There is an advantage to the offender in this course because it reduces the total number of offences and limits the possible total maximum sentence. The prosecution may be agreeable because it encourages a plea of guilty and the charges may adequately reflect the criminality. Where this occurs the view might be taken that the first opportunity to plead, or indicate a plea, to the rolled-up charges is when the indictment containing those charges is filed. But that would be an artificial approach. If the criminal conduct covered by the rolled-up charges has previously been the subject of individual charges then it must be relevant to consider at what point the offender indicated that a plea of guilty would be entered in respect of that conduct. This is allowed for by the reference in s 9AA to the time at which a plea of guilty was made or 'indicated'. The discussions between the sentencing judge and defence counsel proceeded on this assumption.

76 The sentencing judge suggested to defence counsel that any dispute in regard to the timing of the pleas could be resolved by a trial of issues. Defence counsel submitted that this was unnecessary and that the sentencing judge had sufficient information before him to make an assessment of the timing of the pleas.

77 His Honour's assessment was that whilst the pleas were entered at a relatively early stage, they were not entered at the first reasonable opportunity. He said that the delay had resulted in the taking of statements from the parents of the victims. He also said that the prosecution case was a strong one and that the appellant's conviction was essentially a foregone conclusion. Those were conclusions that were reasonably open to his Honour on the available information. The first particular of ground 1 is not made out.

78 The second particular of ground 1 asserts that the discount of 13% was not reasonably open. As the quantification of the discount involves the exercise of discretion the appellant must establish error in one of the ways referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 [505]. Express error is not suggested. In these circumstances, the appellant must establish that the discount given is so plainly unreasonable or unjust that the court must conclude that a substantial wrong has occurred.

79 It is important to always bear in mind the underlying purpose of allowing and quantifying a discount for a plea of guilty. The purpose is to encourage those who are guilty to enter their pleas at the earliest possible stage, and thereby maximise the benefits of those pleas to the State and any victims or witnesses. Discounts act not merely as a reward to the individual, but as an encouragement to others. Too parsimonious an approach to the awarding of a discount may discourage others from entering a plea of guilty. Even when the prosecution case is overwhelming a discount should be given to ensure that accused persons do not view the entering of a plea of guilty as being pointless.

80 The discount here may have been at the lower end of what was appropriate, but it was a conclusion that was open in the proper exercise of discretion. In doing so the sentencing judge was entitled to take into account the assessments he had made as to the strength of the prosecution case and the timing of the pleas of guilty. An implied error in the exercise of discretion has not been made out.

81 This ground is misconceived. It is plain from the transcript of the sentencing proceedings that the sentencing judge did not disregard the content of the reports furnished by the appellant. His Honour expressed some doubt as to whether the cause for the offending referred to in some of the reports could be accepted. These views were only suggested by the report writers, not conclusively determined by them. In any event, it was accepted on the hearing of the appeal that these were not matters that were mitigating so much as explanatory of the offending conduct.

82 Counsel for the appellant identified the information alleged to have been disregarded by the sentencing judge as being that the appellant had himself been the victim of abuse. However, the transcript of the sentencing remarks shows that his Honour did not reject or 'disregard' what was said in this respect. Rather, he said that he was inclined to give it little weight because, amongst other things, it did not mitigate the offending. This was accepted by defence counsel at the sentencing hearing.

83 The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences, having regard to the relevant circumstances, including those referable to the appellant personally.

84 The maximum penalty for an offence of indecently recording a child under the age of 13 is imprisonment for 10 years. The maximum penalty for the aggravated offence of indecently recording a child between the ages of 13 and 16 is also 10 years. The maximum penalty for an offence of indecently recording a child over the age of 16 under the care and supervision or control of the offender is imprisonment for 5 years. The maximum penalty for the offence of possession of child exploitation material is imprisonment for 7 years.

85 The offences in this case represented a course of conduct over a period of almost three years. Each of the first three counts related to multiple instances of indecent recording of a number of different children. The victims were the children of friends and neighbours in the community. The recordings all took place whilst the children were at the appellant's house and under his care and supervision. The offending is seriously aggravated by this significant breach of trust. It is also clear that, in some cases, the offending involved deceit and planning. On some occasions the appellant concealed himself in order to make the recordings. On several occasions he set up a video camera in a room that he knew a child would use to undress. The appellant took advantage of the fact that the child would mistakenly assume that she was in a private area and unobserved. For all of these reasons, the indecent recording offences were serious offences of their type. They were clearly deserving of immediate sentences of imprisonment, notwithstanding the mitigating factors.

86 Possession of child exploitation material is also an offence that usually attracts a sentence of immediate imprisonment. As the sentencing judge noted, this was a less serious example than some others. That was reflected in the sentence imposed.

87 The appellant referred to a number of cases that were suggested as being comparable. These included PNS v The State of Western Australia [2016] WASCA 174; Saraceno v The State of Western Australia [2015] WASCA 100 and DO v The State of Western Australia [2013] WASCA 218. None of those cases support the contention that the total effective sentence imposed in this case was disproportionate to the total offending. Further, three cases is too small a sample from which to draw any conclusion as to a range of sentences for offences like this.

88 In PNS, the offender was convicted on his fast-track pleas of guilty of six counts on an indictment and a further four on a s 32 notice. The charges included two of indecently recording a child between the ages of 13 and 16 years and two of possessing child exploitation material. The recording related to one male victim aged 14 years who was recorded on two occasions. The two possession charges related to 381 images and two images respectively, of which 45 videos and five images were in the two highest categories. There was also a charge of indecent dealing relating to the offender touching the buttocks of a 13-year-old child in a supermarket. A total effective sentence of 6 years' imprisonment was reduced to 4 years on appeal.

89 In Saraceno, the offender pleaded guilty to two counts of indecently recording a child under 13 years. He was sentenced to a total effective sentence of 20 months' imprisonment. Each charge related to a single female victim who was recorded undressing and taking a shower. The offender had undertaken a sex offender treatment program prior to sentencing and also voluntary counselling with a psychologist. The appeal against sentence was dismissed.

90 In DO, the offender was convicted after trial of four counts of sexually penetrating a child under 13 years and 16 counts of indecently dealing with a child under 13 years. He also pleaded guilty to four counts of making indecent recordings, one of possession of child exploitation material and two further counts of indecent dealing. He was sentenced to a total of 10 years' imprisonment which was reduced on appeal to 8 years.

91 To the extent that those cases are relevant, the appellant's offending was less serious than that in PNS but more serious than that in Saraceno. The offending in DO was clearly much more serious and the recording and possession offences formed only part of a larger course of offending and cannot be extracted from it for comparison purposes.

92 The impact that imprisonment of an offender has upon his family and, by extension, any business that he or his family own, cannot be a mitigating factor unless it is truly exceptional. It is commonplace for imprisonment to have these types of adverse effects: Anderson v The State of Western Australia [No 3] [2014] WASCA 190 [96] - [97].

93 In this case, it was suggested that the appellant's farm depended significantly upon him and that his wife would find it difficult, if not impossible, to manage without him. However, it was accepted in sentencing submissions that this was not an exceptional circumstance and could only be relied upon as one amongst many factors that needed to be taken into account.

94 The ground asserts that his Honour determined that the appellant would not suffer hardship in regard to his business. This was said to be because of a conclusion that the farm was a 'commercial operation'. The appellant is reading into this phrase more than could have been reasonably intended. It was submitted that his Honour meant that the farm was a large scale operation which employed many people who could easily take over the work normally done by the appellant. There is nothing to support this interpretation. In any event, it is notable that defence counsel, in referring to the farm, called it a 'business'.

95 His Honour plainly accepted that there could be adverse consequences for the farm, but said that this could not justify a sentence different to that that he imposed. There is no reason to think that he misunderstood the impact or what could be done to ameliorate it. The fact was, however, that this was a factor that could never have been afforded great weight. There is no merit in this ground.

96 In our view, none of the grounds of appeal have any reasonable prospect of succeeding. In those circumstances, we would refuse leave to appeal with the consequence that the appeal is dismissed. We would make the following orders:

1. Leave to appeal on all grounds refused.
2. Appeal dismissed.