DPP (Cth) v Ramos [2018] VSCA 290

Court of Appeal (Vic)|2018-11-12|Before: Whelan JA, Beach JA, Niall JA

Director of Public Prosecutions (Cth) v Ramos (Unreported, County Court of Victoria, Judge Quinn, 9 March 2018).

CRIMINAL LAW - Sentence - Crown appeal - Ground of manifest inadequacy - Respondent convicted of sexual offences by use of carriage service - 20 female victims under 16 years of age - Total effective sentence of 6 years' imprisonment with non-parole period of 3 years 6 months - No error of principle - Sentence not manifestly inadequate - Director of Public Prosecutions (Vic) v Karazisis ; applied - Appeal dismissed.

Ms S M McNaughton SC, Commonwealth Director of Public Prosections, with

Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

1 On 31 January 2018 the respondent, Kenneth Ramos, was arraigned and pleaded guilty to a total of 28 charges concerning sex offences committed through the use of the internet. Following a plea hearing on that date he was sentenced by a judge in the County Court on 9 March 2018 to a total effective sentence of 6 years' imprisonment. A non-parole period of 3 years 6 months was fixed. Twenty-six of the 28 charges were Commonwealth offences. The Commonwealth Director of Public Prosecutions now appeals from the sentences imposed on those 26 Commonwealth charges contending that each of the individual sentences, the total effective sentence, and the non-parole period are manifestly inadequate.

2 The respondent was born in the Philippines and came to Australia when he was a young child. He is an Australian citizen. He does not know his biological father. He considers his stepfather to be his father. He has one younger sister. When he was a baby he contracted an infection which resulted in him suffering a significant hearing impediment. He had learning difficulties at school and psychological testing reveals that he has a low IQ. He is a talented basketball player. He represented Australia in the 2012 Asia Pacific Deaf Games in Seoul, South Korea and he participated in the 2013 Olympic Deaf Games in Sofia, Bulgaria.

3 The respondent is now aged 27. The first 24 offences were committed between 1 October 2013 and 27 January 2016 when he was aged between 22 and 24. On 28 January 2016 police executed a search warrant at his residential address. He was charged and released on bail on that day. Later that year and early the following year, when aged 25 and whilst still on bail, he committed two further relevantly similar offences. These further two offences also constitute the commission of two State offences, being the commission of an indictable offence whilst on bail and the contravention of bail conditions.

4 The 24 Commonwealth offences committed between 1 October 2013 and 27 January 2016 involved the offender using social media applications such as Instagram, Snapchat and Facebook to send messages to 18 girls aged between 11 and 15 with whom he had an association either through his former school or through mutual interests in basketball and drawing. Initially he would engage in conversations with the girls that were general in nature, but the conversations would then become sexualised with the offender talking about and asking for sex, sending photos and videos of his penis and of himself masturbating, and requesting, and at times obtaining, similar photos from the girls themselves. The two further Commonwealth offences committed after the offender had been apprehended and placed on bail were of a similar nature. Some of the offences involved the offender threatening to commit suicide if the girls did not maintain their relationship with him or do as he was requesting.

14 offences of using a carriage service to groom a person under 16 years of age for sexual activity contrary to s 474.27(1) of the Criminal Code 1995 (Cth) ('grooming offences'),
6 offences of soliciting child pornography material using a carriage service contrary to s 474.19(1) of the Criminal Code ('pornography soliciting offences'),
3 offences of causing child pornography material to be transmitted to himself using a carriage service contrary to s 474.19(1) of the Criminal Code ('pornography transmission offences'),
1 offence of using a carriage service to engage in sexual activity with a person under 16 years of age contrary to s 474.25A(1) of the Criminal Code,
1 offence of transmitting indecent communications to a person under 16 years of age using a carriage service contrary to s 474.27A(1) of the Criminal Code, and
1 offence of using a carriage service to procure a person under 16 years of age for sexual activity contrary to s 474.26(1) of the Criminal Code.

6 Annexed to these reasons is a chart setting out each charge and separating them into each victim, the maximum applicable penalties, the sentences imposed, the commencement dates ordered, and the effective cumulation.

7 The sentencing judge summarised the circumstances of the offending as follows:

Between 1 October 2013 and 27 January 2016 you used various social media applications, including Instagram, Snapchat and Facebook, to send messages to 20 different female children[1] whom you'd befriended either actually in person or via the internet.

Some of the girls you'd met at local basketball courts and typically you would engage in general conversation with them often relating to your shared interest in that sport. Other girls you observed, though you did not actually meet, at basketball. Then you would follow them up with Instagram contact.

Your contact was on social media through various applications and originally at the commencement of contact with the girl it proceeded on an innocent basis. You were, however, aware of the ages of each of the girls and had told some of them that you were aged anywhere between 15 and 17. You were in fact aged between 22 and 25 over the period of your offending.

As time progressed your conversations with each girl became more sexualised and included requests by you for sexual activity, you sending sexually explicit photos of yourself or requests for photos of the recipient engaging in sexual activity. Some of the girls engaged in sexualised conversations with you, though others blocked you once they became concerned.

The grooming conduct in respect of 14 victims usually involved an innocent lead up and then you sending pictures of your erect penis, ... or videos of you masturbating, ... With some you would initially flirt with or compliment the girl and then request to meet up with them and have a relationship or sex with them, ...

You sent some of the girls photos of nude adults engaging in sex and requested the girl to engage in sexual activity with you, ... Some of the girls blocked you immediately on receipt of your sexually explicit messages and were, in the words of one of them, 'freaked out'. ...

In respect of other girls you persisted and indicated that you would kill yourself if they were not in a relationship with you. You sent one girl photos of a rope and also created a false account and informed her that you were in hospital after attempting suicide.

You expressed anger too or abused some of the girls if they didn't reply or engage with you. In one instance you told a girl you would stop sending her naked photos of yourself if she sent one of herself to you. You also told her that you knew where she lived.

In relation to another girl you persisted in asking her for sex and offered her money, increasing the amount on offer over time so that she would partake in such an activity with you.

The conduct amounting to soliciting was directed to six victims and conduct amounting to procuring related to one girl, each of which had also been groomed in the manner referred to above.

In respect of the six girls you requested that they send to you nude pictures of themselves or of their breasts, none of the girls did so. In respect of the one girl whom you procured, you asked her if she would engage in oral sex. You said you would kill yourself if she did not, abused her and told her it was her fault if you tried to kill yourself.

There were three girls who did send you photos or sexually explicit photos of themselves at your request, and they are the subject of the carriage charges.

In respect of the charge of engaging in sexual activity, this relates to one of the girls then aged 14. Communicating with you by various means, including real or Facetime. She watched you masturbate between 12 to 15 times and you asked her to do the same while she was watching you. You threatened to kill yourself if she did not communicate with you or masturbate with you. Analysis of your devices revealed that you had communicated 62 times with this girl between 24 March 2015 and 14 April 2015 ...

You have one charge of transmitting indecent communications. This relates to one girl aged 13 and the discovery of sexualised questions and answers in the course of a conversation sent by you to her. This was discovered when police analysed your devices.

You were granted bail in respect of these offences on 27 January 2016. You were subject to a variety of conditions, including that you not approach or communicate with any child under the age of 18 unless in the presence of an adult.

When you were on bail for these offences, you committed further offending of a similar nature between 1 December 2016 and 10 March 2017. You met a 14 year old girl on Instagram. Again, your communications commenced innocently before you started asking her personal, sexually explicit questions that made her feel uncomfortable. You exchanged mobile phone numbers and spoke about going to a movie. ...

You were aged 25 at the time. You also met a friend of that victim on Instagram when she was aged 13. You told her you were 14. She sent you, at your request, a photo of her breasts after you had sent her a photo of your penis. She also sent you pictures of her vagina and breasts on numerous occasions and in return, you sent her pictures of your face and penis. You indicated that you really wanted to meet up with her.[2]

Matters relied upon by the respondent on the plea

8 On the plea hearing counsel for the respondent observed that the offending spanned two periods, the first of two years three months' duration when 24 Commonwealth offences were committed, and the second of three month's duration when the offences whilst on bail were committed. Counsel for the offender pointed out that of the 20 victims one was of an unknown age, two were 11, one was 12, ten were 13, five were 14, and one was 15.

9 Counsel for the respondent relied upon the fact that in relation to much of the offending conduct the respondent was readily identifiable. He used social media platforms that were linked to him, regularly referred to himself by his correct name, and contacted girls with whom he had an association either through his former school, or his interest in basketball, or through the association of victims with other victims.

10 A psychological report by Simon Candlish, a consultant psychologist, dated 17 January 2018, and a neuropsychological report by Martin Jackson, clinical neuropsychologist, dated 12 January 2018, were tendered on behalf of the respondent. Both Mr Candlish and Mr Jackson also gave evidence orally on the plea. A letter written by the offender's stepfather was tendered, and he gave evidence on the plea. A letter from the respondent's mother was tendered.

11 The material tendered on the plea established the existence of the offender's severe hearing impediment, his low IQ (full scale IQ 81), and learning difficulties from which he has suffered as a result. Counsel for the respondent sought to establish that the principles in R v Verdins[3] applied.

12 Whilst the respondent had initially denied the offending, it was submitted that his guilty plea had been entered at an early stage.

13 The sentencing judge set out the various offences and the applicable maximum penalties.[4]

14 After summarising the circumstances of the offending, in the terms previously set out, the sentencing judge referred to the circumstances of the offender's apprehension and then turned to a separate consideration of each of the specific matters to which she was required to have regard.

15 The sentencing judge referred to eight victim impact statements which were before her. She observed that a consistent theme was the effect which the offending behaviour has had on the sense of safety and security of the girls who were the victims of the offending. The studies of some of them have been affected, and others have experienced feelings of anxiousness, sleeplessness and self-blaming.[5]

16 The sentencing judge referred to the reports by the consultant psychologist and the neuropsychologist, and to the oral evidence which they gave.[6] She then set out the respondent's personal circumstances, to which we have already made reference.[7] The sentencing judge considered the psychological evidence, and the submissions made in relation to it, in detail.[8] She concluded that the evidence did not establish mitigation to the extent that would 'enliven' the principles set out in Verdins. She accepted, however, on the basis of the psychological evidence, that the respondent's cognitive impairment and personality traits meant that he had limited or no understanding of the ramifications of engaging in the offending conduct or insight into the effect of his conduct on the victims. The judge observed that the respondent's 'relatively young age' was also relevant in this context. She said that these factors provided 'insight or some explanation' for his offending conduct.[9]

17 The sentencing judge referred to the fact that the respondent is young; has no prior convictions; and was previously of good character, participating in and succeeding in his sporting pursuits.[10] The judge accepted that the respondent's intellectual defects and hearing impediment are likely to make custody more difficult for him than for those without those issues.[11] The sentencing judge took into account the guilty plea which she described as having been entered at 'a relatively early stage'. She accepted that the early plea had utilitarian benefit and was also indicative of remorse.[12]

18 In relation to prospects of rehabilitation the sentencing judge referred to Mr Candlish's assessment of the respondent's risk for 'non-contact sexual recidivism' as being 'moderate' and his risk for 'contact sexual offences' as being 'low'.[13] She said that the respondent had demonstrated a preparedness to undergo treatment whilst in custody.[14] She said that the respondent retained the support of his family.[15] She concluded that the offender's prospects of rehabilitation were dependent upon him properly engaging with behavioural change treatment and sex offender courses. Her overall conclusion was that the respondent's prospects of rehabilitation were moderate.[16]

19 The judge addressed the seriousness of the offending, referring to the duration of the various offences and the fact that there were 20 individual victims. She expressed the view that the grooming offences were of a 'mid-range seriousness'. She referred to threats the offender had made in the course of the offending to commit suicide or to harm himself in an attempt to persuade the victims to engage with him, and to the fact that on one occasion he had offered one girl financial inducement.[17]

20 The sentencing judge referred to the maximum penalties again and to the fact that offending of this kind is often difficult to detect.[18] Given the circumstances of the offending, she concluded that specific deterrence was a relevant consideration.[19] As to general deterrence the sentencing judge said:

It is authoritatively established that general deterrence is the paramount consideration when sentencing for offences of this kind. The existence of cyberspace provides a place where adults can easily deceive children and young people as to their true identity, and [inveigle] them into sexual behaviours beyond their maturity.[20]

21 The judge referred to comparative cases with which she had been provided and observed that, whilst they assisted in determining the relevant principles applicable, none were relevantly similar in her view. The sentencing judge observed that each case must be determined on its own facts and the individual circumstances of the offender.[21]

22 The judge concluded by observing that it was necessary for her to balance matters personal to the offender with what the judge described as 'very serious offending', particularly in view of 'the number of victims' and the 'continued and persistent course of conduct'.[22] She said that she was mindful of the principles of totality 'given the number of offences and significant amount of individual victims'.[23]

23 The judge referred to the complicated nature of sentencing for Commonwealth offences. No doubt prompted by that consideration, the judge sentenced first on the State charges concerning breach of the bail conditions and committing an offence on bail. She specified that the sentences on the Commonwealth charges, commencing with the sentence of 2 years' imprisonment imposed on charge 12, commence at the conclusion of the one month aggregate sentence which she imposed on the State charges.

24 The sentencing judge sentenced the respondent to a 12 month term of imprisonment on each of the grooming offences, except charge 25 (the grooming offence committed whilst on bail) in relation to which she sentenced him to 18 months' imprisonment. On each of the six pornography soliciting offences she sentenced the offender to 18 months' imprisonment. On each of the three pornography transmission offences she sentenced the offender to 18 months' imprisonment. On the charge of using a carriage service to engage in sexual activity (charge 12), which was effectively the base Commonwealth sentence, she sentenced the offender to 2 years' imprisonment. On the transmitting indecent communications charge she sentenced the offender to 8 months' imprisonment. On the procuring charge she sentenced the offender to 18 months' imprisonment.

25 The commencement orders, which create the relevant cumulation, reflect an intention on the part of the sentencing judge to impose a period of cumulation in relation to each individual victim. Generally, the cumulated period in relation to each victim is two months. The exceptions are:

The transmitting indecent communications offence (charge 14), where the period of cumulation is one month.
One of the grooming offences (charge 16), where the period of cumulation is 4 months.
The procuring offence (charge 20), where the period of cumulation is 4 months.
One of the pornography transmission offences (charge 23), where the period of cumulation is 3 months.
The two offences committed whilst on bail (charges 25 and 26), where the periods of cumulation respectively are 4 months and 5 months.

26 The sole ground of appeal is that the sentences imposed on each of the Commonwealth charges, the total effective sentence, and the non-parole period fixed, are manifestly inadequate. Particulars of the ground assert that the individual sentences do not adequately reflect the nature and circumstances of the offending and the maximum penalties; do not adequately reflect the principles of general deterrence, specific deterrence, denunciation and punishment; and that the cumulation ordered does not adequately reflect the distinct instances of the offending and does not give due regard to the principle of totality.

27 In submissions made in support of the ground of appeal the Director acknowledged that the appeal can only succeed if it is demonstrated that the sentences imposed fall clearly outside the sentencing range reasonably available.

28 In submitting that the individual sentences are inadequate, the Director placed particular reliance upon the number of victims, being 20 girls aged between 11 and 15. Reliance was also placed upon the period of the offending in relation to the first 24 charges which were committed over a continuous period in excess of two years, and upon the fact that the last two Commonwealth offences were committed whilst on bail. Reliance was placed upon the maximum penalties for the various offences. The Director submitted that the judge 'must have' permitted factors personal to the respondent to 'overwhelm' the primacy of general deterrence. She also submitted that it 'would appear' that the judge had been 'guided' by a 'desired overall sentencing outcome' rather than imposing appropriate sentences and cumulation for each of the offences.

29 Counsel for the respondent also emphasised that appellate intervention should only occur where the inadequacy in the sentences imposed is 'clear and egregious'.

30 Counsel for the respondent set out and relied upon the respondent's personal circumstances and his relatively young age at the time of the offending. Counsel referred to the fact that the respondent had come to Australia whilst still a young child suffering profound hearing loss in his left ear and moderate to profound hearing loss in his right ear. He had attended a special school, and had had difficulties fitting in at school and developing friendships. Reference was made to the respondent's talent at basketball and to the fact that he had represented Australia playing deaf basketball internationally. Counsel referred to the respondent's low IQ and to the psychological evidence which had indicated that the respondent was suffering from cognitive impairment and 'problematic personality traits' which impacted upon his social skills. Counsel emphasised the respondent's relatively young age, his absence of prior convictions, his participation in sporting pursuits, his intellectual deficits and hearing impairment, his guilty plea at an early stage, his remorse, and the fact that his prospects of rehabilitation were assessed by the sentencing judge as being moderate and that he had demonstrated a preparedness to undergo treatment whilst in custody.

31 Counsel for the respondent submitted that the sentencing judge had fully understood the nature of the offending and had comprehensively and accurately addressed all of the relevant sentencing considerations.

32 In relation to the circumstances of the offending, counsel for the respondent emphasised that there had been no physical contact, that no financial inducement had ever been actually made, that the images the offender obtained had never been distributed or passed on, that the age difference was not as significant as is sometimes seen in offences of this kind, that there was not the kind of breach of trust which often occurred in offences of this kind, and that the offender did not seek to preserve his anonymity in a way often seen in this kind of offending.

33 Counsel for the respondent submitted that even if the sentences were found to be manifestly inadequate the Court should exercise its residual discretion not to interfere with the sentences imposed. In that connection it was submitted that the offender had applied himself constructively while in custody and was on a priority list for individual assessment and treatment which was likely to be impeded if his earliest parole eligibility date was altered.

34 The sentencing judge made reference in her Reasons to submissions made to her concerning comparable cases. The cases to which she was referring were cases set out on a table headed 'Table of Comparative Cases' relied upon by the prosecution at the plea hearing. The table set out the details of five cases, being appellate decisions in Victoria and New South Wales. The cases were Director of Public Prosecutions (Vic) v Swingler,[24] Director of Public Prosecutions (Cth) v Haynes,[25] Aboud v The Queen,[26] Gifford v The Queen[27] and Adamson v The Queen.[28] One of those cases, Adamson, involved 26 victims.

35 As the sentencing judge observed, reliance upon what are said to be comparative cases is subject to significant limitations. Consistency in sentencing is important[29] and comparative cases may serve as 'yardsticks' to illustrate the possible range of sentences available.[30] But comparative cases must not be treated as fixing quantitative boundaries within which future sentences are required to be passed.[31]

36 We have considered the sentences imposed on the table of cases provided to the sentencing judge by the prosecution with those principles in mind, and have also considered sentences on some other potentially relevant comparable cases.[32]

37 In that context, the total effective sentence imposed in this case would not appear to be inconsistent with 'yardsticks' drawn from the decisions in the table of cases relied upon by the prosecution before the sentencing judge. Before us, however, it was submitted that a more severe sentence was warranted in this case because of the number of victims, the duration of the offending, and the persistence of the offending even after apprehension and whilst on bail.

38 In this case the sentencing judge addressed all of the relevant matters clearly and correctly. She correctly described and characterised the offending, and she set out all of the relevant mitigating factors. She addressed the psychological evidence in detail and reached a conclusion concerning the Verdins principles which was clearly correct, in our view. On the appeal it was not suggested that she had acted on a wrong principle, allowed extraneous matters to affect her, mistaken the facts, or failed to take into account some material consideration. What is contended is that, notwithstanding the absence of any specific error, the individual sentences, the total effective sentence and the non-parole period, are manifestly inadequate.

39 The principles which apply to this ground of appeal are well settled. In Director of Public Prosecutions (Vic) v Karazisis[33] this Court said:

In Victoria, the contention that a sentence was manifestly inadequate is invariably expressed as a submission that the sentence was outside the range reasonably open to the sentencing judge in the circumstances. As with the ground of manifest excess, the ground of manifest inadequacy is a stringent one, difficult to make good. Error of this kind will not be established unless the appellate court is persuaded that the sentence was 'wholly outside the range of sentencing options available' to the sentencing judge. Put another way, it must be shown that it was not reasonably open to the sentencing judge to come to the sentencing conclusion which he/she did if proper weight had been given to all the relevant circumstances of the offending and of the offender.

The court will be astute to enforce the stringency of this test. As the High Court has emphasised:

The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.[34]

40 The submissions advanced on behalf of the Director did not descend to a detailed consideration of the particular sentences, but rather focused upon the overall outcome which was suggested to be manifestly inadequate given the number of victims, the duration of the offending, and the persistence of the offending including whilst on bail. We have nevertheless individually considered each of the sentences.

41 The general uniformity in the sentences for each type of offence does mean that there are two particular instances where differentiations might have been made which are not reflected in the sentences. On the offences of grooming and soliciting in charges 3 and 4, sentences were imposed (respectively one year and one year six months' imprisonment with two months' cumulation) which were the same as the sentences imposed on the other grooming and soliciting offences, yet those offences involved particularly deceitful and manipulative suicide threats not present in the other similar offences. The sentence imposed on charge 15, another of the grooming offences, had a feature absent from the other grooming offences in that the respondent offered the girl money.

42 On the other hand, the sentencing judge did impose sentences which reflected more serious conduct in other instances. The grooming offence which was charge 16 involved an 11 year old girl. It was, in our view, more serious than other grooming offences because of the victim's age, and that is reflected in the sentence imposed as the level of cumulation in relation to that charge, four months, is higher than on the other grooming offences. The offences in charges 20 and 21 involved a suicide threat, and the judge has ordered greater cumulation on those offences, four months. The offences committed whilst on bail attracted orders for greater cumulation than those generally imposed, four months and five months respectively, and the grooming offence committed on bail (charge 25) which involved less serious conduct than most of the other grooming offences attracted a longer sentence.

43 It seems to us that the sentencing judge has given separate consideration to the individual offences and, whilst different outcomes could have been imposed on some particular charges, she has not reached a conclusion on any of them which is so unreasonable or unjust that it can be inferred that some error of sentencing principle has occurred. We are not persuaded by the submission of the Director that, in effect, the judge reverse engineered the individual sentences from a conclusion as to a desired overall outcome. The Reasons reveal separate consideration of each sentence and the need to provide some measure of cumulation in respect of the offending against each victim. In the circumstances there was no exact relativity between each offence and it cannot be said that any sentence is demonstrably wrong when compared with any of the other sentences.

44 In relation to the total effective sentence and the non-parole period, the judge was faced with a difficult decision. As she recognised, the offending was serious and persistent. But she was required to balance that against the fact that the respondent was young, that he has impaired mental capacity, that he suffers from a significant physical disability, that he has no prior convictions, that he pleaded guilty at an early stage, and that he has shown remorse and demonstrated a willingness to engage in offence specific treatment. In all the circumstances we are not persuaded that the total effective sentence and the non-parole period are wholly outside the range of sentencing options available to the sentencing judge. We are not persuaded that the overall outcome arrived at by the sentencing judge in this case was so unreasonable or unjust that a failure to properly exercise the sentencing discretion ought to be inferred.

45 In the circumstances the appeal will be dismissed.