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[2013] WASCA 244
Court of Appeal (WA)
2013-10-22
Buss JA
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : DOWNIE -v- THE STATE OF WESTERN AUSTRALIA [2013] WASCA 244
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Criminal law - Appeal against sentence - 13 acts of indecent dealing with a child aged between 13 and 16 years - Nine acts of sexual penetration of a child aged between 13 and 16 years - Totality principle - Express errors of fact
D v The State of Western Australia [2009] WASCA 155
Hine v The State of Western Australia [2010] WASCA 216
KS v The State of Western Australia [2011] WASCA 85
KWJW v The State of Western Australia [2010] WASCA 29
Law v The State of Western Australia [2009] WASCA 193
MMC v The State of Western Australia [2012] WASCA 187
R v Avery [2002] WASCA 136
RFS v The State of Western Australia [2012] WASCA 58
Roffey v The State of Western Australia [2007] WASCA 246
Schriever v The State of Western Australia [2008] WASCA 133
Tanner v The State of Western Australia [2013] WASCA 142
The State of Western Australia v Fleming [2010] WASCA 162
Van Doorn v The State of Western Australia [2008] WASCA 177
3 MAZZA JA: This is an appeal against sentence. The appellant requires an extension of time. The appeal was filed 19 days out of time. The delay has been adequately explained. I would grant the extension of time.
4 The appellant pleaded guilty to 24 sexual offences contained in two indictments. He was sentenced by separate judges of the District Court on separate days. He was ordered to serve 3 years and 6 months' imprisonment in respect of each indictment to be served cumulatively. Thus, the total effective sentence imposed was 7 years' imprisonment. The second term of 3 years and 6 months' immediate imprisonment was imposed by McCann DCJ. This appeal focuses on that sentence. The appellant alleges that the sentence offends the first limb of the totality principle (ground 1) and that his Honour made a number of express errors (ground 2). Leave to appeal has been granted in respect of ground 2. The question of leave to appeal on ground 1 was referred to the hearing of the appeal.
5 In my opinion, neither ground has been made out and the appeal must be dismissed. My reasons for arriving at these conclusions are as follows.
6 On 29 May 2012, Curthoys DCJ sentenced the appellant in respect of indictment 131 of 2012, which alleged:
7 In early May 2011, the appellant 'met' the 14-year-old male victim online. The appellant was, at the time, 34 years of age; however, he told the victim that he was 28 years of age. An arrangement was made for the appellant and the victim to meet at a public toilet in Nedlands. They met as agreed. The appellant undid the victim's jeans and rubbed his penis for approximately two minutes (count 1). He then took the victim's hand and placed it on the appellant's penis and indicated to the victim to rub it, which he did (count 2). The appellant then placed his mouth over the victim's penis and performed fellatio until the victim ejaculated (count 3). At this point, the victim ran from the location and reported the matter to the police.
8 On 30 August 2011, police officers executed a search warrant at the appellant's address. There they seized a laptop computer. Later analysis discovered 1,241 still images and 22 movie files of child pornography (count 5). Investigators also found that between 27 and 28 June 2011, the appellant used an internet file sharing program to distribute 64 images of child pornography to the United States of America (count 4).
9 Curthoys DCJ imposed the following individual sentences:
Indecent dealing (child > 13 and 13 and 13 and 13 and 13 and 13 and 13 and 13 and 13 and 13 and 13 and 13 and 13 and 13 and 13 and 13 and 13 and 13 and 13 and 13 and 13 and 13 and I didn't want to meet people my own age out of fear ... it seemed safer to meet younger people.
21 Psychometric testing undertaken by Ms Zuin produced findings consistent with the appellant's presentation. Test results indicated that the appellant is socially withdrawn and experiences social anxiety and discomfort. Dependent and self-defeatist personality features were also noted. Ms Zuin observed that the appellant appeared to have limited insight into himself.
22 Ms Zuin's report revealed that the appellant's psychosexual makeup is complex. She noted that the appellant had been sexually abused by his stepfather, which he paradoxically 'enjoyed'. Although he claimed to have a sexual preference towards adult women, that claim, in Ms Zuin's opinion, was questionable and was 'more likely a veneer for his underlying sexual interest in males much younger than himself'. In her opinion, the appellant's relationships with adult women provide him with 'a sense of comfort, nurturance, stability and security', whereas sexual contact with males meets his sexual needs.
23 Ms Zuin used the Static 99 test to assess the appellant's risk of reoffending. At the time Ms Zuin assessed the appellant, he had only been convicted of the offences before Curthoys DCJ. Ms Zuin assessed the appellant's risk as being in the medium to low risk category. However, she said, his risk had the potential to increase to medium to high in the event he was convicted of the offences that were ultimately dealt with by McCann DCJ. Relevantly to his risk of reoffending, Ms Zuin noted that individuals involved in the dissemination of child pornography (as the appellant had been) generally pose a higher risk of reoffending.
24 Ms Zuin observed that the appellant required intensive treatment in respect of his sexual offending and his own sexual abuse as a child. She recommended that the appellant be assessed for inclusion in an intensive sex offender treatment program 'as there is a distinct possibility he could reoffend in a similar manner in the future'.
25 Although the focus of this appeal is on the sentences imposed by McCann DCJ, it is necessary to refer to some aspect of Curthoys DCJ's sentencing remarks.
26 With respect to the offences that he dealt with, Curthoys DCJ regarded the appellant's offer to pay the boy for sex as aggravating. He also observed that a young person such as the victim was not in a position to give consent to the kind of activities that the victim and the appellant engaged in. His Honour described the child exploitation material the appellant possessed as depicting children as young as 6 or 7 engaged in anal penetration and fellatio. He said that the images and movie files were 'distressing'.
27 With respect to the offence of distributing child exploitation material, his Honour said that although the images were not 'a great number', there was a particular need for general deterrence because such offences were difficult to detect and were 'an increasing problem'. His Honour observed that those who engage in distribution of this material were encouraging the corruption of and damage to vulnerable children. He regarded the child exploitation material offence as being separate and distinct from the offences against the 14-year-old victim.
The sentencing proceedings before McCann DCJ
28 It is necessary to give a more detailed account of the proceedings before McCann DCJ.
29 After the prosecutor recited a summary of the facts of the offending alleged by the State, defence counsel took exception only to the allegation that the appellant gave money to the complainant on the date of each instance of offending. The appellant's position was that he gave the victim money, but not contemporaneously with the offending. Defence counsel told McCann DCJ 'that nothing really turns on this issue in terms of disposition and a trial of the issues is not needed' (ts 17). The prosecutor told his Honour that the State did not accept the position proffered by defence counsel, but did not seek to try the issue (ts 20).
30 In the course of the plea in mitigation, the appellant's counsel told his Honour that the appellant had a 'strong desire' to participate in an intensive sex offender treatment course due to start in 2013 and that he was presently participating in a course called the Sycamore Tree (ts 22 - 23). It was said that the appellant was motivated towards rehabilitation.
31 Defence counsel took no issue with Ms Zuin's report. But his Honour raised aspects of the report with him.
32 His Honour noted that Ms Zuin speculated that the appellant's encounter with the victim of the offences dealt with by Curthoys DCJ may not have been his first paedophilic sexual encounter, but said that he rejected that speculation (ts 26).
33 Defence counsel informed McCann DCJ that the appellant's instructions were that he had commenced accessing child pornography at about the same time as the offences against the victims occurred. His Honour drew to defence counsel's attention that part of Ms Zuin's report which indicated, as he understood it, that she believed he had been accessing child pornography over 'at least three years and potentially longer' (ts 27). His Honour said to defence counsel that he considered this issue as being relevant to his assessment of Ms Zuin's opinion as to the appellant's risk of reoffending (ts 27). Defence counsel told his Honour that the appellant maintained that he commenced accessing child pornography at about the time of the other offences (ts 28).
34 His Honour said in dialogue with defence counsel that in his mind the appellant had 'prodigious treatment needs and they go a long way past saying "I'm going to do the sexual offender treatment program in prison"' (ts 30 - 31). His Honour informed defence counsel that he was inclined to assess the appellant as being at a medium to high risk of reoffending. Defence counsel responded that there was 'no getting around what's written in the reports' but submitted that the appellant was committed to addressing 'his issues in the future' (ts 31).
35 Defence counsel submitted that there was hope for the appellant. His Honour accepted this submission, but said that the appellant did not fully comprehend the seriousness of his situation. He expressed the view that the path towards rehabilitation would be complex and difficult.
36 At one point, his Honour adjourned the sentencing proceedings to re-read Ms Zuin's report. After this adjournment, his Honour said:
Before we hear anything further from [defence counsel], I just want to say for the record that Ms Zuin did not explicitly say that future treatment is problematic.
37 He went on to say that although she had not explicitly said this, that was his clear impression of what she was saying.
38 His Honour referred to some of the internet chat logs between the appellant and the victim, saying that they indicated that the appellant had 'a deep sexual yearning' for the victim. Defence counsel accepted this to be so (ts 45 - 46).
39 During the course of counsel's submissions, his Honour used a number of expressions which counsel for the appellant in this court submitted were inappropriate and led to his Honour imposing an erroneous sentence. Counsel for the appellant pointed to expressions such as 'a sort of dam of paedophilic lust has burst' (ts 26) (an expression his Honour used more than once) and that the offender was a 'gay paedophile and everyone seems to want to paper over the cracks as if this is an aberration' (ts 33).
40 After summarising the facts of the offending, his Honour said that the victim 'consented' and was 'a particularly willing participant' (ts 48). His Honour accepted that there was no evidence of force or coercion, but described the encounters as 'highly corrupting'. He described the appellant as having 'a deep emotional and sexual yearning for the victim' (ts 49). His Honour found that the appellant had 'generously' rewarded the victim for his 'previous involvement' with him and that he was prepared to continue to reward the victim if he remained in a relationship with the appellant.
42 His Honour took into account as aggravating factors:
43 His Honour found that the offending was not out of character and was, in fact, consistent with the appellant's character. His Honour described the offences as 'highly premeditated' and involving a degree of 'depravity, paedophilic lust, grooming, planning and enthusiasm' (ts 51). He said that by hiring a hotel room, the appellant had sexualised the victim in an adult way. His Honour said that this was 'self-indulgent and highly corrupting'.
44 His Honour had regard to the following mitigating factors:
These are barely scratching the surface of your problems and there will need to be very, very deep-seated therapy and analysis and change by you starting with the fundamental recognition of who you are and what you are and why you are what you are (ts 52).
45 His Honour took into account the negative effects of the offending on the victim.
46 His Honour had express regard to issues of concurrency and totality. As to totality, his Honour acknowledged that he had to take into account the sentence imposed upon the appellant by Curthoys DCJ.
47 His Honour again expressed the view that the appellant was of a medium to high risk of reoffending and, accordingly, protection of the public was an 'elevated' sentencing factor. He repeated what had been said in dialogue with counsel that the appellant had 'unleashed a veritable [wave] of paedophilic lust which [he had] been damming up for some time' (ts 55). His Honour found that although the appellant held a genuine belief that he had insight into his offending, he lacked real insight.
49 The general proposition in ground 2 is that his Honour erred in sentencing the appellant on a factual basis that was not reasonably open to him. The ground is supported by six particulars. I will deal with them separately.
50 There was no explicit finding that the appellant's future treatment was problematic. However, it is clear from his Honour's sentencing remarks that, having regard to the appellant's psychosexual makeup, his offending, his deep-seated paedophilic tendencies and his lack of genuine insight, he thought that the appellant's rehabilitation would be difficult and could not be predicted with certainty.
51 These conclusions were open to his Honour on the facts and having regard to Ms Zuin's report, which was not materially challenged.
52 The word 'veneer' was used by Ms Zuin in her report in the context that the appellant portrayed himself to the world as having a sexual preference towards adult women when in fact his sexual preference was towards 'males much younger than himself'. The appellant's counsel suggested that this statement was no more than saying that the appellant had a sexual interest in young men and not boys. It is clear, when one considers Ms Zuin's report as a whole, that she was referring to males of the age of the victims in this case.
53 His Honour's use of the word 'veneer' to connote someone whose outer appearance is different to his true personality was entirely apt. It was not disputed that the appellant had deep-seated paedophilic interests, and yet the impression he portrayed to others was completely different.
54 The point made by his Honour during his sentencing remarks, that the appellant had to acknowledge who he was before he could be rehabilitated, was correct.
55 During his sentencing remarks, his Honour, when referring to the child exploitation offences dealt with by Curthoys DCJ, said:
I take into account that there were child pornography offences as well and serious ones. A large number of images, a large number of instances of file sharing of images, videos and photographs of children. Little boys basically, little boys engaging in sexual intercourse of various kinds and other forms of sexual behaviour (ts 54).
56 The number of child pornography images was large: 1,241 still images. However, the number of images that were distributed over the internet using file sharing software was only 64. His Honour erred in saying that there was 'a large number of instances of file sharing of images, videos and photographs of children'. However, this error of fact did not have any material effect upon the sentences imposed by his Honour: Criminal Appeals Act 2004 (WA) s 31(4). It is not evident from a reading of the sentencing remarks as a whole that his Honour's impression as to the number of images that were distributed had any material bearing on the sentence he imposed. A different sentence should not have been imposed.
57 These particulars may be dealt with together. Particular 2.4 is in these terms:
His Honour relied upon an incorrect assumption contained in the psychological report that was challenged by defence.
His Honour did not give defence counsel reasonable notice that he was going to sentence on a basis contrary to their submissions.
59 Ms Zuin said in her report that it was likely the appellant had been 'offending over a much longer period of time, at least three years and potentially longer'. That statement needs to be seen in the context of an earlier statement in the report in which Ms Zuin said that the appellant had disclosed that he had been accessing 'homosexual pornography for several years'.
60 Defence counsel challenged Ms Zuin's statement that it was likely the appellant had been offending for at least three years.
61 After defence counsel had completed his plea in mitigation, his Honour told the prosecutor that he was going to re-read Ms Zuin's report. He then said to the prosecutor:
McCANN DCJ: I am going to read [Ms Zuin's report] with a grain of salt because there are certain factual assumptions which are denied which you have no way of gainsaying.
NICOL, MR: No, I don't (ts 34).
62 In context, the reference to 'certain factual assumptions which are denied' refers to Ms Zuin's statement that the appellant had been offending for at least three years. His Honour made no finding in his sentencing remarks that the appellant had been offending for at least three years. There is nothing to indicate that his Honour sentenced the appellant on this basis.
63 With respect to particular 2.4, the appellant submitted that having regard to Ms Zuin's 'incorrect factual assumption', his Honour should have placed little or no reliance on her assessment of the appellant's risk of reoffending. This submission cannot be accepted. Although defence counsel challenged the finding that the appellant had been offending in the sense of viewing child exploitation material for at least three years, he did not challenge Ms Zuin's assessment of the appellant's risk of reoffending.
64 It will be remembered that Ms Zuin assessed the appellant as being of a medium to low risk category, increasing to a medium to high risk depending on the outcome of the charges that were ultimately dealt with by McCann DCJ. Ms Zuin's assessment of the appellant's risk of reoffending was based on:
(b) the outcome of the offences ultimately dealt with by McCann DCJ; and
(c) her opinion that individuals who disseminate child pornography fall in a higher category of risk.
65 Ms Zuin did not refer to the appellant having offended for at least three years in the context of the appellant's risk of reoffending.
66 His Honour's assessment of the appellant's risk of reoffending was that the appellant fell into the medium to high category. His Honour did so in part based on Ms Zuin's report, which he said was 'circumstantially corroborated' by his own views. It was plainly open to his Honour to conclude that the appellant fell in the medium to high risk of reoffending, having regard not just to Ms Zuin's report, but to all the circumstances of the case, particularly having regard to the nature of the offending, the appellant's psychological makeup, his lack of genuine insight into his paedophilic tendencies, his intensive treatment needs and the very real challenges he faces in his rehabilitation.
67 His Honour did not rely upon the assumption contained in Ms Zuin's report.
68 Particular 2.5 is based upon an erroneous premise. The erroneous premise is that his Honour sentenced the appellant contrary to the submission that he had not been offending for at least three years. His Honour did not sentence the appellant contrary to that submission.
69 The aggravating factor referred to in this particular was that the appellant's risk of reoffending was medium to high. As I have said, that assessment was not challenged. There was no conflict in the evidence that his Honour was required to resolve. Contrary to the appellant's submission, there was no necessity for the State to call Ms Zuin or for the issue to be proved by the State beyond reasonable doubt: Law v The State of Western Australia [2009] WASCA 193 [31] (Buss JA, with whom McLure JA & Pullin JA agreed).
70 In oral submissions, the appellant's counsel made a point that was not clearly raised in ground 2. He submitted that his Honour erroneously dismissed the appellant's prospects of rehabilitation. Counsel submitted that this was unfair because the appellant had undertaken the Sycamore Tree program and was willing to undertake a sex offender treatment program. According to the appellant's counsel, the appellant had done everything that he could in the circumstances to further his rehabilitation. These submissions cannot be accepted.
71 The learned trial judge did not completely dismiss the appellant's prospects of rehabilitation. He acknowledged the appellant's participation in the Sycamore Tree program and his willingness to undertake a sex offender treatment program. His Honour went on to say that these measures barely scratched the surface of the appellant's deep-seated problems and that the appellant faced real challenges in his rehabilitation. On the facts of this case, his Honour's comments were entirely appropriate.
72 I now turn to the submission that the expressions used by his Honour led to the imposition of an erroneous sentence. It is true that during the course of dialogue with counsel, his Honour used the expressions I referred to earlier in these reasons. He did so, it appears to me, in an attempt to plainly articulate his thinking and to allow counsel the opportunity to make submissions in respect of it. His Honour, himself, described some of his phraseology as 'purple prose', an expression which was not inapt.
73 Some of the language used by his Honour was not appropriate to the circumstances and was unfortunate: see Tanner v The State of Western Australia [2013] WASCA 142 [162] (Buss JA, with whom I agreed). In particular, his Honour should not have described the appellant as a 'gay' paedophile. The appellant's sexual orientation was irrelevant and the expression could be viewed as validating an erroneous correlation between homosexuality and paedophilia.
74 However, the inappropriate use of language by his Honour does not equate to an erroneous sentence. It is not alleged that his Honour's language gave rise to any actual or perceived bias. It is not apparent from the expressions used by his Honour that he fell into any error of fact or law. Nor is it apparent that the sentencing proceedings were in any way unfair. The submission made by the appellant cannot be accepted.
75 Although particular 2.3 has been made out, it had no material effect upon the sentences imposed by his Honour. A different sentence should not have been imposed. None of the other particulars to ground 2 have been established. Ground 2 has not been made out.
76 I now turn to ground 1. The appellant alleges that by imposing a cumulative sentence of 3 years and 6 months' imprisonment, McCann DCJ infringed the first limb of the totality principle.
77 The first limb of the totality principle provides that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Roffey v The State of Western Australia [2007] WASCA 246 [24] (McLure JA). The totality principle applies where an offender is to be sentenced when he or she is serving a term of imprisonment, at the time of sentencing, for other offences: The State of Western Australia v Fleming [2010] WASCA 162 [29] (Buss JA).
78 In support of the submission that a total sentence of 7 years' imprisonment infringed the first limb of the totality principle, the appellant cited a number of cases which it was said supported the appellant's contention. While it is relevant to have regard to comparative cases to ensure broad consistency, each case must be decided on its individual circumstances. No two cases are the same and the circumstances in which sexual offending occurs vary greatly, as do the circumstances of the offenders. The cases cited by the appellant are: MMC v The State of Western Australia [2012] WASCA 187; RFS v The State of Western Australia [2012] WASCA 58; KS v The State of Western Australia [2011] WASCA 85; Hine v The State of Western Australia [2010] WASCA 216; KWJW v The State of Western Australia [2010] WASCA 29; D v The State of Western Australia [2009] WASCA 155; Van Doorn v The State of Western Australia [2008] WASCA 177; Schriever v The State of Western Australia [2008] WASCA 133 and R v Avery [2002] WASCA 136.
79 It is unnecessary to analyse each and every one of these cases. I have read them. There are numerous differences between each of them and the present case. They do not assist the appellant. The one case that the appellant contended was particularly comparable to the present case, KWJW v The State of Western Australia, demonstrates, if anything, that the total effective sentence imposed upon the appellant was within the range of a sound sentencing discretion.
80 In that case, the appellant, a man aged between 39 and 40 years, committed a total of 11 offences, being three counts of indecent dealing with a child, two counts of indecently procuring a child to deal with the appellant, two counts of indecently dealing with a child under his supervision and four counts of sexual penetration of a child. The victim was aged between 13 and 14 years. The victim was a close friend of the appellant. The type of offending engaged in was similar in nature to the offending in the present case, involving masturbation and fellatio. Unlike the present case, the appellant cooperated with the police, admitted his offending, pleaded guilty at the first opportunity and was genuinely remorseful. Although the number of offences in KWJW was less than the number of offences in the present case, the offending occurred in the context of a sustained course of conduct. An appeal against one of the individual sentences and the total effective sentence of 7 years' imprisonment was dismissed.
81 There can be no doubt that the appellant's overall offending was very serious. In total, he committed 13 acts of indecent dealing and nine acts of sexual penetration. In addition, he not only possessed child exploitation material, but he distributed it. He offended against two complainants. He paid them money. He groomed the second complainant.
82 In terms of the appellant's personal circumstances, it must be acknowledged that, as a result of being sexually abused as a child, he came to associate sexual abuse with love and affection. He has intensive treatment needs, without which he poses a medium to high risk of reoffending.
83 The offences dealt with by McCann DCJ were separate and distinct from the offences dealt with by Curthoys DCJ. They were also more numerous and considerably more serious. Counts 6 to 19 were seriously corrupting, occurring as they did in a hotel room which the appellant arranged and paid for with the purpose of engaging in sexual conduct with a child.
84 McCann DCJ reduced the sentences that he would otherwise have imposed to take into account the totality principle.
85 As this court and its predecessor have said on many occasions, the predominant sentencing consideration in offending of this kind is general deterrence and the protection of children.
86 I am not persuaded that the total effective sentence imposed in this case infringed the totality principle.
87 I would not grant leave to appeal in respect of ground 1. The ground must be dismissed.
D
The State of Western Australia