Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal law - Appeal against sentence - Indecently recording a child under 13 - Total effective sentence of 20 months' imprisonment - Totality principle - Whether sentence adequately took into account rehabilitation

Sentence Administration Act 2003 (WA), pt 3 div 4

Cartwright v The State of Western Australia [2010] WASCA 4

DAR v The State of Western Australia [2010] WASC 72; (2010) 199 A Crim R 279

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

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

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

Power v The Queen [1974] HCA 26; (1974) 131 CLR 623

R v Todd (1982) 2 NSWLR 517

Scook v The Queen [2008] WASCA 114

2 MAZZA JA: I have had the considerable advantage of reading in draft the reasons of Hall J, with whom Buss JA agrees. I gratefully adopt his Honour's description of the factual background to this appeal. I respectfully agree with his Honour's description of the relevant legal principles. I differ only as to the application of those principles. I would uphold grounds 1 and 2 which, to my mind, add up to the same thing - an allegation that the total effective sentence infringed the first limb of the totality principle. I would dismiss ground 3. In my opinion, the sentences imposed by the learned sentencing judge should be set aside, but only to the extent that they were ordered to be served cumulatively. I would order that they be served concurrently, so that the total effective sentence to be served by the appellant is 10 months' immediate imprisonment. The appellant would be eligible for CEO parole after serving 5 months: pt 3 div 4 of the Sentence Administration Act 2003 (WA). My reasons for these conclusions are as follows.

3 I accept without question that the offences committed by the appellant were serious. It is unnecessary to repeat all of the serious features of the offending. It is sufficient to observe that the offences, among other things, involved a degree of premeditation and planning, and were a gross invasion of the privacy of the victims. Further, the appellant used the recordings he made for his ongoing sexual gratification. Despite the mitigating factors, the length of the individual sentences imposed by his Honour, and his decision not to suspend the terms, were proper exercises of his Honour's sentencing discretion. It is the length of the total effective sentence that has troubled me.

4 The first limb of the totality principle requires that the total effective sentence bear a proper relationship to the overall criminality involved in all of the offences, viewed in their entirety and having regard to all relevant sentencing factors, including those referable to the offender personally.

5 The learned sentencing judge correctly took into account, when considering the issue of totality, the sentence imposed in Victoria and the rehabilitation undertaken by the appellant. As to this latter consideration, while it is true that the learned sentencing judge did not regard the appellant's rehabilitation as being as advanced as he claimed, there was no challenge in this appeal to these facts:

1. The appellant had engaged in rehabilitative programs over a lengthy period of time in Victoria. These programs were directed to the cause of all his offending: his paedophilic tendencies.
2. The appellant was committed to the continuation of his rehabilitation into the future.
3. The appellant had already served the custodial portion of the Victorian sentence.
4. The appellant was subject to the conditions of the Victorian sentence, which were designed to promote his rehabilitation, until July 2016.
5. The appellant's prospects of rehabilitation were assessed by the learned sentencing judge as being reasonable.

6 It must also be acknowledged that the appellant pleaded guilty to the offences, albeit not at the first reasonable opportunity. Further, although not a matter of great weight, the appellant voluntarily travelled from Melbourne to Karratha at his own expense when he learned of the charges in this State. The appellant did so to assist in the administration of justice and with a view to having all matters resolved.

7 I have been persuaded that the total effective sentence of 20 months' imprisonment was more than is fairly necessary to achieve all of the recognised sentencing objectives, one of which is rehabilitation: Power v The Queen [1974] HCA 26; (1974) 131 CLR 623. Consequently, the total effective sentence imposed infringed the first limb of the totality principle, thus enlivening this court's power to intervene and resentence the appellant.

8 HALL J: On 22 January 2015, following his pleas of guilty, the appellant was sentenced to 10 months' imprisonment on each of two charges of indecently recording a child under the age of 13 contrary to s 320(6) of the Criminal Code (WA). The sentences were ordered to be served cumulatively and the sentencing judge ordered that the appellant be eligible for parole.

9 The appellant has appealed against his sentence. Essentially his grounds are that the total effective sentence of 20 months' imprisonment infringed the first limb of the totality principle in that it was disproportionate to the total offending having regard to all of the circumstances including those personal to the appellant. He also submits

that the sentencing judge erred by failing to suspend the term of imprisonment.

10 The essential issue in this case is that by the time the appellant came to be sentenced in the District Court on 22 January 2015 he had already served a sentence for related offending in Victoria. He had also taken steps towards his rehabilitation in respect of that other offending. Having regard to those factors it is suggested that the sentence imposed in the District Court breached the totality principle.

11 On 12 February 2015 an urgent appeal order was granted and leave to appeal was granted on grounds 1 and 3 of the grounds of appeal and leave in respect of ground 2 was referred to the hearing of the appeal.

12 With one minor exception, to which I will refer later in these reasons, the facts were not in dispute.

13 Between November 2009 and April 2010 the appellant was living in Karratha with his partner and her 12-year-old daughter. The appellant installed a concealed visual recording device in a bathroom of the house. On a day during this period a friend of the appellant's step-daughter came to the house for a sleepover. The friend was also a 12-year-old girl. Knowing that this girl wished to use the bathroom the appellant adjusted and activated the visual recording device. This resulted in a visual recording being made of the girl undressing and taking a shower. After the girl had left the bathroom the appellant removed the device and later downloaded the footage to a computer. This conduct related to count 1 of the indictment.

14 Between May 2010 and August 2010 the appellant was residing at a different house in Karratha with his partner and her daughter. He again installed a concealed visual recording device in the main bathroom of the house. During this period a different friend of his step-daughter came to the house for a sleepover. The friend was an 11-year-old girl. Knowing that the girl wished to use the bathroom the appellant went to the room and adjusted and activated the visual recording device. The device then recorded the girl undressing and taking a shower. Once she had finished and left the room the appellant removed the recording device and later downloaded the footage to a computer. This conduct relates to count 2 of the indictment.

15 In sentencing submissions counsel for the appellant disputed that on the first occasion the camera had been originally placed for the purpose of making illicit recordings of naked children. It was suggested that the appellant had suspected his partner of having an affair with another man and of going to the bathroom to make telephone calls to that man. He claimed that his purpose in placing the camera was to record his partner making such telephone calls. The sentencing judge expressed doubt about that explanation. His Honour noted that in respect of the offences the appellant had manually activated and deactivated the camera. It seemed unlikely that he could use the camera in the same way to record his partner using the telephone as he could not anticipate when she would use the bathroom. In any event it was not disputed that on these two occasions the appellant had deliberately activated the camera in order to make indecent recordings of the children concerned.

16 The appellant kept the recordings and later admitted that he used them for his sexual gratification. The fact that he had made and kept the recordings was not discovered until sometime later. In November 2011 an FBI investigation into internet child pornography revealed that the appellant had subscribed to news groups and thereby accessed child pornography. I will return to that conduct later in these reasons. At this point it is sufficient to note that as a result of that investigation the Australian Federal Police executed a search warrant at the appellant's home in Victoria and arrested the appellant on 30 August 2012. A number of still images and videos were found on the appellant's computers. He was charged with, amongst other offences, being in possession of child pornography. That charge originally included the two recordings that the appellant had made in Karratha. However, those videos were later excluded from that charge and referred to police in this State.

17 As I have noted, on 30 August 2012 the Australian Federal Police executed a search warrant at the appellant's home in Victoria. During the search the police seized a desktop computer and some other equipment but were unable to find a laptop computer which they were seeking. The appellant told the investigating officers at that time that he did not possess any child pornography. He subsequently agreed to handover his laptop computer to the police and did so later that day.

18 The laptop and the other equipment which had been seized were examined and child pornography was discovered. The images were mostly of girls aged between eight and 15 years engaged in both erotic posing and sexual activity with other children and adults. A total of 887 still images and 21 videos were found. Approximately 96% of the images and videos were at level 1 seriousness. This comprised images depicting nudity or erotic posing by children with no sexual activity. There were, however, a number of items of a more serious type. There were 11 images and three videos at level 2, being child pornography that depicted sexual activity between children or solo masturbation by a child. There were ten images and two videos at level 3, being images of non-penetrative sexual activity between adults and children. There were eight images and two videos at level 4, being images of penetrative sexual activity between children and adults.

19 Examination of the computers established that the appellant had obtained this material through membership of news groups on the internet. He had paid a total of $100 to access an internet server for this purpose. Those payments had been made between 22 June 2011 and 6 May 2012. The possession of the 887 images and 21 videos (not including the two videos made in Karratha, which were also found on the computer) was the subject of a charge of knowingly possessing child pornography contrary to s 70(1) of the Crimes Act 1958 (Vic) (count 1).

20 In addition to accessing child pornography the appellant had also made 15 posts on various news groups between 26 June 2011 and 29 April 2012 in which he solicited child pornography from other users. Some of the posts were duplicated onto different news groups. There were 11 individual posts and these were the subject of a charge of using a carriage service to solicit child pornography material contrary to s 474.19(1)(a)(iv) of the Criminal Code (Cth) (count 2).

21 The appellant had also posted 1,689 files, totalling approximately 1.3 gigabytes, between 15 November 2011 and 30 August 2012. Of those posts 1,187 were identified as containing child pornography. In respect of this conduct the appellant was charged with using a carriage service to make available child pornography material contrary to s 474.19(1)(a)(iii) of the Criminal Code (Cth) (count 3).

22 As has been noted, at the time the search warrant was executed the federal police were unable to locate the appellant's laptop computer. Prior to delivering that laptop the appellant deleted a number of programmes from it. These were programmes that contained child pornography website details. He then copied other data onto the laptop, which had the effect of over-writing the free space such that any data that had been deleted could not be recovered using recovery software. He also adjusted the computer's internal time clock so that it appeared that the new material had been on the computer for some time. In respect of this conduct the appellant was charged with the Victorian common law offence of attempting to pervert the course of justice (count 4).

23 The appellant pleaded guilty to these offences and was sentenced in the County Court of Victoria on 26 July 2013. At that stage the appellant was yet to be dealt with for the West Australian offences. He was dealt with in Victoria on the basis that he had no prior convictions. He was also sentenced on the basis that his sexual interest in children only arose following the breakdown of his relationship and return to Melbourne. It was said that at this time he was bored and lonely. In her sentencing remarks, Judge Harbison described the circumstances in which the Victorian offences were committed as follows:

Despite this, you did not turn to alcohol or drugs, but you did turn to the internet. Your counsel has described you spending very long hours on the internet, and described the computer as being your only friend. It was in these circumstances that your offending began and then escalated.

You used the internet at first to access mainstream pornography, however your use of pornography escalated because of your loneliness and boredom, and strayed into the area of child pornography. You accept that you used these images of child pornography for sexual gratification. Your counsel described your actions in doing so as bordering on the obsessive. You accept now that in your dealings with the child pornography you treated the images as a collection. You accept that you depersonalised those images. You persuaded yourself that what you were engaging in was virtual sex in the cyber world. You were then unable to see those images as being representative of the pain and suffering of real children.

24 After his arrest and prior to being sentenced in Victoria the appellant had voluntarily undertaken psychological counselling. This had been delivered over a six month period and was said to mirror the Sex Offender Treatment Programme provided in prisons. Reports were provided by Mr Patrick Newton and Dr Matthew Barth, psychologists working in the same private practice. Dr Barth was the primary treating psychologist. Mr Newton described the appellant as genuinely engaging with the programme administered by Dr Barth and gave evidence that the appellant had shown a candour and openness that he described as refreshingly different to other sex offenders. Mr Newton also gave evidence regarding his assessment of the appellant's risk of future offending. This was summarised by Judge Harbison in the following terms:

As to your risk of offending in the future, he said that he believed that treatment such as you are presently receiving will ultimately spoil your desire for internet pornography, making the fantasies no longer gratifying because of your realisation that the images were those of real children who had been exploited.

He described your present risk of further offending as moderate to low, providing that you seek to cooperate in ongoing treatment. He said that you would need at least two to two and a half years of treatment, and that it would not be beneficial if that treatment was interrupted, for instance, by a term of imprisonment.

25 Her Honour concluded that there was a low likelihood that the appellant would reoffend and that his rehabilitation was well under way. She said that she accepted that the appellant was a man of previous good character. However, she noted that the existence of previous good character was not a factor that could be given great weight in sentencing for offences of this nature. Her Honour said:

Regrettably you fit the description of many men who prop up this despicable trade - often middle class men, having never come to the attention of the authorities, and having no desire to act out what you so enjoyed viewing.

26 Her Honour concluded that only a sentence of imprisonment was appropriate but that a short period of actual imprisonment could be imposed with a longer term of conditional release in order to encourage efforts towards rehabilitation. This objective was achieved in the following way:

9 months' imprisonment, 7 months of which was suspended for a period of 3 years.

12 months' imprisonment on each count to be released after serving 2 months of those sentences on a recognisance release order for 3 years in an amount of $1,000 with a condition that the appellant undertake a Sex Offender Treatment Programme.

9 months' imprisonment, 7 months of which was also to be suspended for 3 years.

All of the sentences were to commence on the day on which they were imposed. The effect of this was to make all of the sentences concurrent such that the term of actual imprisonment imposed on the appellant was 2 months to be followed by 3 years on a recognisance release order.

27 Defence counsel in the District Court submitted that the two recordings the subject of the present charges were originally incorporated into the material that was the subject of the Victorian possession charge. The appellant had pleaded guilty to that charge in the expectation that in so doing all of his criminality would be dealt with. However, prior to being sentenced in the County Court the Commonwealth prosecution authorities informed the appellant's solicitors that the two recordings would not be included in the material covered by the possession charge because it had been determined that they did not fall within the relevant definition of pornography. It would appear that the two recordings were then referred to the West Australian police and charges were laid in this State in May 2013, though the appellant was not aware of that until he was serving his two month sentence of imprisonment in Victoria. Until that time the appellant believed that no charges in respect of the recordings would be proceeded with, though it would not appear that anything had been said to the appellant by any prosecution authorities that could have induced that belief.

28 Shortly before the appellant was released from prison in Victoria on 25 September 2013 he was told that he was wanted in Western Australia and that extradition proceedings would be commenced. He then agreed to travel to this State voluntarily and did so on 17 December 2013. He travelled at his own expense and his willingness to do so was said to derive from his wish to assist in the administration of justice and to have all matters resolved. There was a delay in entering a plea of guilty because the appellant received legal advice that it might be arguable that the proceedings in Western Australia were an abuse of process. There was also an issue raised as to whether the recordings were indecent in nature. The latter issue was listed for argument at a directions hearing on 22 January 2015, together with a number of other matters. At a hearing on that date the pleas of guilty were entered and the appellant was sentenced. By that time the matter had been set down for a 3-day trial commencing on 18 March 2015. The appellant's solicitors advised the court and the State of his intended pleas on 9 December 2014.

29 It was submitted on behalf of the appellant that in the time that had elapsed since the search warrant was executed on 30 August 2012 he had turned his life around. He had embarked upon a course of rehabilitation before he was sentenced in Victoria and had continued it since that time. That course was said to have been successful, such that any need for personal deterrence was reduced. It was also submitted that the two month sentence of imprisonment that the appellant had served in Victoria had been salutary. A number of protective measures were now in place, including that the appellant is a registered sex offender, which was said to reduce the risk of reoffending and provide protection to the community.

30 Whilst the appellant had not undertaken the Sex Offender Treatment Programme ordered by Judge Harbison, he had been undertaking a similar programme with his psychologist, Dr Barth. The learned sentencing judge was provided with reports from Mr Newton dated 3 July 2013, from Dr Barth dated 7 July 2013, 6 April 2014 and 14 January 2015 and from a consultant psychiatrist, Dr Lester Walton, dated 15 January 2015.

31 It was conceded on the hearing of the appeal that the treatment that the appellant received in Victoria prior to being sentenced in that State did not specifically address the making of the recordings.

32 In his report of 7 July 2013 Dr Barth said that the appellant had attended 18 sessions between 17 January 2013 and 5 July 2013. He noted that initially the focus of these sessions was on the appellant's depressive symptoms. The 'second phase' focused on challenging the cognitive distortions which had allowed the appellant to justify his offending behaviour. The appellant had initially minimised this behaviour and presented with cognitive distortions such as 'I didn't pay for it', 'the pictures were old, how could it affect anyone' and 'they looked carefree and natural'. It would seem that these distortions related to the material the subject of the Victorian charges. There does not appear to have been an awareness of the very different conduct involved in making the indecent recordings and the fact that the appellant knew the children concerned. Dr Barth states that psycho-education was introduced emphasising the noxious impact of internet child pornography. He states that the appellant found this to be a confronting experience, although again it appears to relate specifically to the material the subject of the Victorian charges. According to Dr Barth the appellant made good progress in developing a more realistic view of the harm his offending had caused and had developed a more genuine empathy for the victims involved in the production of all forms of child pornography.

33 More recently treatment had focused on introducing relapse prevention training. In this regard Dr Barth states:

Mr Saraceno was able to provide an overview of his offending behaviour which initially began with isolating himself from family and friends in order to cope with negative events which had occurred in his life (eg loss of job, loss of relationship, family conflict) and as a consequence his depressed moods became more intense and impairing. He then progressed to viewing pornography more frequently and came across child pornography whilst searching for more diverse material. Despite initially being surprised to find such material, he was able to justify viewing the material more over time (using the distortions addressed in the previous phase of treatment) and therefore minimised the destructiveness of his behaviour. As a consequence, he began searching for and indulging in sexual fantasies of under aged girls more frequently.

34 The first reference to the charges pending in Western Australia is in the report of Dr Barth dated 6 April 2014. In that report Dr Barth says that following his release from prison in Victoria the appellant had continued to consult him for psychological treatment. Fourteen such sessions had occurred between 1 October 2013 and 2 April 2014, which, added to the pre-sentence consultations amounted to 32 sessions in total to that point. Dr Barth stated that the appellant's recent psychological treatment had predominantly focused on addressing his depressive symptoms and his continuing risk of suicidal behaviour. The appellant had discussed his impending prosecution in Western Australia with Dr Barth but had found that the prospect of further charges to be extremely daunting and had often moved the discussion away from that subject.

35 In his report of 14 January 2015 Dr Barth stated that the appellant had attended 23 sessions between October 2013 and 19 December 2014. In total he had attended 41 sessions to that point. Dr Barth was of the view that the appellant's depressive symptoms remained significant but he had made significant progress in gaining insight into the emotional triggers which caused his offending. In this report, for the first time, there is reference to a focus on the appellant's West Australian offending. It is said that the sessions had focused on assisting the appellant to gain insight into his offending, enhance his victim empathy, correct the offence supporting cognitions associated with the behaviour and implementing a specific relapse prevention plan to reduce his risk of recidivism for this specific offending. The appellant told Dr Barth that the offending had occurred in the context of a relationship breakdown which had left him feeling helpless, lonely, confused, hurt, inadequate and frustrated. He had become increasingly suspicious that his partner had commenced another relationship and it was at that point that the offending occurred. His justifications for the offending included that he was not harming anyone and just wanted to know the truth about his partner and that he did not make the recordings for sexual reasons. When challenged the appellant was uncomfortable in this phase of treatment and expressed his shame. Nevertheless, Dr Barth concluded that he had made very good progress in correcting his previous offence supporting cognitions and displayed an enhanced level of empathy for the 'gross breach of trust and sexual exploitation he perpetrated against the complainants'.

36 In his report of 3 July 2013 Mr Newton provided a summary of the facts as provided to him by the appellant. This was limited to accessing child pornography on the internet. There is no reference in the report to the different conduct involved in making the recordings. This is also reflected in the rationalisation that the appellant gave to Mr Newton:

Mr Saraceno initially rationalised his offending conduct as taking place in 'virtual reality' and hence as being victimless. In his counselling with Dr Barth these views have been challenged and Mr Saraceno has been provided with education about the realities underlying the material with which he was involved. Mr Saraceno found this to be an emotionally confronting experience. Through it he was able to develop an understanding of the evils of child pornography and its effect upon those involved with it. In turn this has formed the basis of an apparently genuine empathy for the suffering of the children involved which in turn have led to feelings of remorse and regret.

Mr Saraceno's recourse to internet based pornography provided him with a context where he could explore a type of virtual connection with other people while at the same time avoiding the anxiety which actual contact would have evoked for him. It thus provided a sexual outlet that allowed him to compensate for the isolation and frustration he felt due to his lack of involvement with others, in a context where he could experiment with a range of sexual behaviours (ranging from main stream through more marginal forms of sexual expression to overtly deviant material) in an effort to clarify his own sexual preferences. Moreover, Mr Saraceno was able to remain in complete control of the images he was viewing as well as distant and separate (sic) from the individuals depicted in them. As a result he experienced a reduction of a social anxiety that had plagued him in other types of 'interaction' and so could assuage his sense of isolation.

Mr Saraceno's behaviour was unequivocally problematic, disordered and pathological. There is a compelling need for ongoing sex offender treatment.

38 At that time Mr Newton said that the appellant had made some progress since his arrest but this represented only a first step towards his rehabilitation. His problems were described as being longstanding and pervasive such that there was a need for ongoing specialist treatment. Continued participation in a comprehensive Sex Offender Treatment Programme was said to be the single most important factor in the prevention of recidivism. The appellant's 'sincerity and perseverance' in approaching counselling was said to provide some hope that he would achieve the personal change that was required.

39 Dr Walton's report stated that the appellant had succumbed to a major depressive disorder. Whilst it was difficult to be precise, he suspected that the appellant was suffering from a diagnosable depressive condition during the period of his offending. It was clear to Dr Walton that the appellant preferred normal adult heterosexual interaction but had admitted to making the recordings which, in Dr Walton's opinion, was meaningfully described as paedophilic behaviour. The appellant acknowledged to Dr Walton that he found the materials to be sexually arousing.

40 In the course of the sentencing proceedings in the District Court the learned sentencing judge expressed concern that the treating psychologist, Dr Barth, did not become aware of the covert recording of naked children prior to December 2014 or January 2015. The date appears to be an error in light of the report of April 2014. However, the substance of his Honour's concern was well-founded. He expressed that concern as being that the appellant had, until shortly prior to being sentenced in the District Court, received treatment that was premised on him being a person who was interested in viewing and collecting child pornography. His Honour said that there was a 'significant difference between the possession of pornography obtained off the internet and the actual setting out to create such material, particularly in circumstances where there is such a gross breach of trust as there is here'. His Honour also noted that when Judge Harbison had dealt with the appellant she had made the point that she was treating him as someone of prior good character and in doing so had clearly been unaware of the circumstances surrounding the present offending.

41 In sentencing the appellant the sentencing judge said that he found the following aggravating factors to be established:

First, both offences involve an appalling breach of trust or rather breaches of trust.

These young girls were friends of somebody who might be described as a step-daughter. You presented an outward impression of respectability and the parents of these girls trusted you and your partner with their daughter's care for overnight sleepovers.

You breached the trust of your partner - or ex-partner, who never would have allowed access in this way had she known of your sexual interest in girls of this age.

Finally, your then partner's young daughter, for whom you stood in the position of a step-father for a time, was also betrayed by you in the way that you dealt with her friends.

Second, it's plain that these offences were not merely opportunistic, but required a degree of pre-meditation and planning. I've taken the opportunity over the break, because of some of the matters that were raised in the course of submissions, to look at beginnings and ends of these recordings, without sound, because there was no sound on the recording that I had.

And it is obvious that in a couple of cases it was necessary for you, in the minute and a half or three minutes before the girl entered the bathroom, to ensure that the camera was - or the device was operating properly.

Finally, the indecent nature of this offending rises, in part because of the purpose of the recording, that is the gratification of a sexual interest in young girls (AB 80 - 81).

42 His Honour referred to a victim impact statement in regards to one of the girls who was recorded, who spoke of her insecurity and loss of trust in others. She referred to her grief at the loss of her best friend, the daughter of the appellant's ex-partner, caused not by any irrational blame on the part of the victim but the withdrawal from the relationship by the sense of guilt and embarrassment on the part of her former friend. The victim also spoke of the social anxiety that she now experiences and her difficulty in sleeping and her extreme sadness.

43 His Honour then referred to the personal circumstances of the appellant and to the reports which he had received. In this regard he said:

The psychological reports were perhaps not as useful as they might be because they were prepared at a time - at least the early ones - when you were facing only charges of possession of and dissemination of child pornography. That is the offences for which you were sentenced in the County Court of Victoria.

Those offences post-dated the offence for which I am to sentence you and it does not appear that at the time the psychologists were aware of the offending for which you are before me which was committed in either late 2009 or early 2010.

It seems they didn't become aware of those until quite some time after your sentence for the offences in Victoria. It appears to me as late as December 2014 or January 2015.

44 His Honour noted that in the later reports there is reference to the appellant explaining his behaviour by wishing to make recordings of his former partner using her telephone in the bathroom. In this regard his Honour said:

Why a surreptitiously placed video camera was necessary to capture a telephone conversation was seemingly not questioned by Dr Barth or Dr Walton. What they could not know and what I do know is that it was apparently necessary for you in some circumstances to go in and activate the camera to cause it to begin recording.

That is, it was not, for example, voice activated. You can be seen in the videos, the subject of these offences, doing that. It would be relatively obvious when a young visitor to the house would be using the bathroom and likely to take a shower and, indeed, it's obvious on at least one of them that the person is preparing for bed, putting on her pyjamas.

It is difficult to concede how this method of surveillance could be effective for something as random and unplanned as a telephone call. Your version of how you incidentally or accidentally came to view a child that they triggered this interest is, in my view, implausible but it is one that appears to have been accepted by your treating psychologist.

Next, there is the fact that through the many sessions of therapy that you had prior to your sentencing in July 2013, despite the fact that you were asked probing questions about your sexual behaviour or proclivities, somehow the fact that you had been engaged in covertly video recording naked little girls did not emerge.

It's apparent from the assessment of Mr Newton that he was not aware of the behaviour when he assessed your risk of reoffending. It's apparent that Dr Barth, despite all the further sessions that you had with him, was not aware of the behaviour until after you had actually pleaded guilty to these offences in December 2014.

It is the case that Dr Barth having then learnt of these matters does not suggest that that alters his view about the success the treatment that he has conducted and that he does not comment upon what seems to be a reasonably significant deception in the course of this therapeutic relationship.

He is however in a therapeutic relationship with you. He cannot be described as independent and I say that without diminishing at all what it is that he has sought to achieve. That fact, however, bears on the weight to be given to his conclusions.

All that really begs the question as to how forthcoming you have been in the course of your treatment.

I refer to the reports that speak about your prospects of rehabilitation, that rate your prospects of rehabilitation rather highly. Because of the misgivings that I have about the way that the psychologist was effectively drip fed information about your history and sexual behaviour. Because of the doubts that I have and I have expressed, to the extent that I will say it is probable that your treating psychologist and others have not been given the full or true story about your background sexual behaviour and the reasons that surround the commencement of this offending. Notwithstanding that I accept that you'd have reasonable prospects of rehabilitation, but I'm not satisfied, on the balance of probabilities, that your rehabilitation is as advanced as claimed.

46 His Honour concluded that a term of imprisonment was the only appropriate disposition in each case. Each offence occurred on a separate day and involved a different victim. In those circumstances, his Honour considered that cumulative sentences were also appropriate.

47 In regard to the issue of totality his Honour said:

It's still necessary though for me to consider the broader issues of totality. In particular, the total effective sentence has to bear a proper relationship as to the overall criminality involved in both of these offences. Looked at in their entirety and having regard to the circumstances of the case, including your personal circumstances.

Senior Counsel, on your behalf, reminds me that I must consider the total criminality involved, not only for the offences for which you are being sentenced but also the offences for which you served the sentence imposed by her Honour Judge Harbison. I do have regard to that and not only the two months in prison that you were required to serve but the fact that you have been subject to a suspended term of imprisonment of seven months.

The fact that, as a consequence of that offending, you are subject to reporting conditions as a sexual offender is not part of the punishment that I have regard to. That fact is relevant at best, in my view, in assessing the level of risk you may present to the community.

48 His Honour then referred to Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 and R v Todd (1982) 2 NSWLR 517. He accepted that in the circumstances of this case he needed to take into account the sentence imposed in Victoria and any process of rehabilitation that had taken place in the interim. However, he considered that there were a number of important factors that distinguished the appellant's case from Todd and Mill. Firstly, the offences in Western Australia did not occur close in time to those that were committed in Victoria. Secondly, the offences were different in nature, albeit that all of them arose from the appellant's paedophilic tendencies. Thirdly, the sentence imposed in Victoria could not be characterised as a substantial period of imprisonment. His Honour concluded that in these circumstances the totality principle did not require any further adjustment of the sentences.

1. The learned sentencing Judge erred by imposing an overall sentence that was manifestly excessive particularly having regard to the first limb of the totality principle.
2. The learned sentencing Judge erred in sentencing by determining the totality principle did not require any further reduction of sentence apart from that provided for the rehabilitation of the appellant from the date of the charges in Victoria and the date of sentence in Western Australia.
3. The learned sentencing Judge erred in sentencing by imposing a sentence that was manifestly excessive by failing to suspend the terms of imprisonment imposed.

50 Whilst grounds 1 and 3 refer to a sentence that was manifestly excessive it was clear from the appellant's submissions that no challenge was made to the length of the individual sentences. Rather, the challenge was to the total effective sentence, which was said to be disproportionate to the total offending both in regards to its length and to it not being suspended.

51 Grounds 1 and 2 can be conveniently dealt with together. The totality principle has two limbs. The first limb is relied upon here. It 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.

52 In some cases offences committed at around the same time by the same person may not be able to be dealt with by the same court. An instance of this is where a person commits offences in different jurisdictions. After a person has been convicted and sentenced in one jurisdiction there may be a delay before they can be dealt with in another jurisdiction. In such circumstances the proper approach for the second court is to ask what would likely have been the effective head sentence imposed if the person had committed all of the offences in one jurisdiction and had been sentenced at the same time: Mill. This exercise may result in a sentence being imposed by the second court that is lower than the offences it is dealing with might attract if they stood in isolation.

53 A delay in dealing with related offences may also be relevant in considering whether rehabilitation has already occurred. In Mill the High Court adopted the reasoning of Street CJ in Todd. In both cases the appellants had committed a series of armed robberies in different jurisdictions. In Todd Street CJ said:

Where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in the state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to consideration of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner (519 - 520).

54 There is no doubt that offences of this nature are serious. The maximum penalty for making an indecent recording of a child is imprisonment for 10 years: s 320(6) Criminal Code.

55 The offending in this case involved an element of planning. In each case the appellant activated the recording device immediately prior to the child using the bathroom. His clear intention was to make an indecent recording. The appellant's conduct was aggravated by the fact that it also involved a significant breach of trust. The two girls involved had each been entrusted by their parents to the care of the appellant (and his partner). The children also had every reason to believe that a bathroom in the home of their friend was a private and safe place. The appellant made the recordings for his own sexual gratification and used them for this purpose. He was still in possession of them two years after they were made. The fact that two recordings were made involving different victims at different houses several months apart shows that this was not an uncharacteristic aberration or isolated behaviour. It was conduct that in some respects was more serious than the possession of child pornography in that it involved the covert recording of naked children who were known to the appellant and under his care.

56 On behalf of the appellant it was not disputed that the offences were serious. Rather the argument was that in light of the penalty imposed in Victoria and the appellant's efforts towards rehabilitation the imposition of a further sentence of imprisonment to be served was disproportionate. There are a number of difficulties with this submission.

57 The sentences imposed in Victoria were in respect of offences of a different nature committed between 18 months and three years later. This made it difficult to view all of the offences as part of some connected course of conduct. Insofar as there was a connection between them it was that they all related to a sexual interest in children; an interest that had clearly been in existence for some years. However, it is apparent that the sentences imposed in Victoria were based upon an assumption that the appellant had been of prior good character (which has proven not to be the case) and that his sexual interest was confined to viewing images of children who he did not know on the internet. Had all of the offences been dealt with together in one jurisdiction there would no doubt have been some reduction for totality but that does not necessarily mean that the West Australian offences would have attracted lower sentences than they did. This is because the Victorian offences when viewed in the light of the recording offences take on a more serious light. Some of the favourable findings made by Judge Harbison are unlikely to have been made if all of the offences had been dealt with together.

58 The implication in the appellant's submissions is that the discretion of the sentencing judge was constrained by the fact-finding and sentences imposed in Victoria. This assumes that those sentences were imposed in the knowledge of all the relevant circumstances. That has been shown not to be the case. What the sentencing judge was in fact obliged to do when considering totality was to look at the total offending in light of all of the facts now known to exist. The question was whether the imposition of a further 20 months' imprisonment, having regard to the sentence imposed in Victoria, would be disproportionate to the total offending. I should say that I would not accept that totality was inapplicable here because of the factors referred to by the sentencing judge (that is, the different nature and timing of the offences and the relative shortness of the sentence imposed in Victoria), but I do not understand his Honour to have excluded the principle but rather to have concluded that it did not require a reduction of the sentences he imposed in all of the circumstances.

59 A further problem with the appellant's submissions is that it does not follow that because there has been some efforts towards rehabilitation there must be a reduction in the sentence. For rehabilitation to be relevant to the recording offences it would have to address the conduct that was the subject of those charges. It is apparent from the reports that the appellant's treatment programme was initially based upon an assumption that his offending was limited to accessing and viewing child pornography on the internet. The justifications he gave for this conduct gave no suggestion that he had been involved in the indecent recording of children. In fact, they were inconsistent with that behaviour because he told the psychologist that he committed the child pornography offences because he saw the children involved as being 'virtual' and not real victims. That was not a position that could be reconciled with the making of indecent recordings of children that he knew. The earliest indication of any awareness on the part of the treating psychologist, Dr Barth, that the appellant had committed the recording offences was in the April 2014 report. However, it is only in the subsequent report in January 2015 that there is any suggestion that the treatment had addressed this behaviour. That was very belated and did not account for the long delay in revealing the conduct.

60 In these circumstances the sentencing judge's doubt as to the honesty of the appellant and the effectiveness of the treatment was well-founded. Unlike Mill and Todd this was not a case where the process of rehabilitation could be confidently said to have addressed all of the conduct that was the subject of the charges.

61 There are relatively few cases involving sentences imposed for indecently recording a child. There is no range of sentences customarily imposed for such offences. I have had regard to DAR v The State of Western Australia [2010] WASC 72; (2010) 199 A Crim R 279 and DO v The State of Western Australia [2013] WASCA 218. However, neither of those cases are directly comparable to the appellant's case. Whilst the appellant had generally favourable personal circumstances that is not unusual in cases of this nature and is generally a less important factor in respect of offences of this type.

62 Having regard to the serious circumstances of the offences I am unable to conclude that sentences of 10 months in each case to be served cumulatively were in error. That position is not affected when account is taken of the Victorian offences. Had all of the offences been dealt with together in one jurisdiction at the same time it could not be said that the total effective sentence imposed should have been materially different from the collective effect of the sentences imposed in Victoria and Western Australia. That is particularly so bearing in mind all of the historical factors that are now known.

63 Leave was granted in respect of ground 1 and leave in respect of ground 2 was referred to the hearing of the appeal. Whilst I would grant leave in respect of ground 2 I would dismiss both grounds.

64 The sentencing judge looked again at all the relevant circumstances in considering whether the sentence should be suspended: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321. Having done so he was not persuaded that given the nature, gravity and extent of the offending that a suspension of the sentence could be warranted.

65 The relevant sentencing principles in respect of suspended sentences were explained by McLure P with whom Owen and Wheeler JJA agreed in Cartwright v The State of Western Australia [2010] WASCA 4 [8] - [10]:

Section 39(2) of the Sentencing Act 1995 (WA) (the Act) sets out the various sentencing options. The ultimate option is a term of immediate imprisonment and the two preceding it are conditional suspended imprisonment and suspended imprisonment respectively. Under s 39(3) of the Act a court must not use a sentencing option in subs (2) unless satisfied that it is not appropriate to use any of the options listed before that option. The same considerations that are relevant to the imposition of a term of imprisonment must be revisited in determining whether to suspend the term; the power to suspend is not confined by reference wholly, mainly or specially to the effect that suspension would have on the rehabilitation of a particular offender: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18], [26], [84], [85].

However, as noted in Collins v The State of Western Australia [2007] WASCA 108 [17], the sentencing discretion is not to be exercised in a vacuum. A sentencing judge must impose a type of sentence that falls within a sound discretionary range. The decisions of this court and its predecessor provide guidance to sentencing judges with the aim of achieving consistency in sentencing. This court has made it plain that generally, a term of immediate imprisonment is the only appropriate sentencing option for serious drug offences. The incentives, financial and otherwise, to participate in the illicit drug distribution network must be counterbalanced by a clear and certain understanding that such involvement will ordinarily result in a penalty of immediate imprisonment: The State of Western Australia v Saxild [2008] WASCA 156 [12]. Thus, the imposition of a sentence other than immediate imprisonment for such an offence is, as a matter of fact, exceptional: The State of Western Australia v Andela [2006] WASCA 77 [17]; Saxild [13].

However, even if a term of immediate imprisonment is generally the appropriate penalty, the sentencing judge is not relieved of his or her obligation to determine the appropriate penalty in the particular case. In such circumstances the question for the sentencing judge is whether having regard to all relevant sentencing factors, the case does not require the imposition of the generally appropriate type of sentence: Collins [21].

66 Whilst that case was concerned with sentences imposed in respect of drug offences, the general principles are applicable. In order to succeed in this ground of appeal the appellant must satisfy this court that it was not open for the sentencing judge in the exercise of his discretion to come to a conclusion that a suspended sentence was inappropriate. Such a conclusion very much depends upon the findings of fact made by the sentencing judge. In this case none of those findings are disputed.

67 Given the findings, which I have referred to above, it was clearly open to the sentencing judge to conclude that a suspended sentence was inappropriate. His Honour found that the appellant had not been honest with those treating him and also doubted the extent to which the efforts towards rehabilitation had addressed the recording conduct. To the extent that such conduct had been addressed it was relatively recently. To a significant extent the delay between the appellant being released from custody in Victoria and being sentenced in Western Australia was due to the appellant. In any event, delay in itself is not usually a mitigating factor unless it is accompanied by relevant rehabilitation: Scook v The Queen [2008] WASCA 114 [31].

68 Leave in respect of this ground has been granted. However, in my view, it cannot succeed.