DPP (Cth) v Walls [2014] VSCA 323

1 On 4 March 2014, the respondent pleaded guilty to two charges of using a carriage service to transmit indecent communication to a person under 16 contrary to s 474.27A(1) of the Criminal Code (Cth), one charge of using a carriage service to procure a person under 16 contrary to s 474.26(1) of the Criminal Code and one charge of soliciting child pornography material using a carriage service contrary to s 474.19(1) of the Criminal Code.[1] A plea hearing was conducted on 4 March, 10 April, 14 April and 22 September 2014. On 22 September 2014, the respondent was sentenced as follows:

Use a carriage service to transmit indecent communication to a person under 16 years of age [Criminal Code (Cth_)_ s 474.27A(1)]

4 months to commence 1 month after the sentence on charge 4 commences

Use a carriage service to procure a person under 16 years of age for sexual activity [Criminal Code (Cth) s 474.26(1)]

Use a carriage service to solicit child pornography [Criminal Code (Cth) s 474.19(1)]

6 months to commence 14 months after the date of sentence

Use a carriage service to transmit indecent communication to a person under 16 years of age

4 months to commence 3 months after the sentence on charge 3 commences

22 months. The respondent was ordered to be released forthwith upon the respondent giving security by recognisance of $1,000 to comply with the condition imposed that the respondent be of good behaviour for a period of 24 months pursuant to section 20(1)(b) of the Crimes Act 1914 (Cth)

30 months' imprisonment with a non-parole period of 12 months

Registered as a sex offender with a reporting period of 15 years

2 The Commonwealth Director of Public Prosecutions has appealed against the respondent's sentence on the ground that the sentence imposed was manifestly inadequate. The Director has particularised this ground as follows:

(a) The learned sentencing judge failed to give sufficient weight to:

(i) the maximum penalties;

(ii) the principles relevant to sentencing in these matters, specifically general deterrence; and

(iii) the objective seriousness of the offending

(b) The learned sentencing judge gave undue weight to the matters in mitigation, specifically the rehabilitation of and matters personal to the respondent; and

(c) the sentence imposed by his Honour (and the approach taken) is inconsistent with the authorities and current sentencing practices.

3 The offending in this matter involved three child complainants who were aged between 14 and 15 years' old. The respondent was aged between 25 and 26 years of age at the time. The respondent and the complainants were from the same local community, however the respondent did not personally know any of the complainants.

4 The respondent became a Facebook friend with each of the complainants, and thereafter, either through Facebook or via text message, repeatedly sent each complainant sexually explicit messages. The offending occurred over a period of nine months.[2] The acts the subject of the charges are outlined below.

5 Between May and August 2012, the respondent, and complainant 'B', who was 14 years of age, became Facebook friends. The respondent began messaging B and according to B was 'trying to talk dirty'. B told the respondent her age and that his behaviour was creepy. The respondent began to send text messages to B, including messages telling her that he was masturbating. The respondent also sent B a picture of his penis.

6 Complainant 'C' and the respondent became Facebook friends in 2012. The respondent had gone to school with C's older brother. Between January and July 2013, the respondent communicated with C, who was aged between 14 and 15 years of age, via Facebook and text messages. According to C, the communications from the respondent to C soon 'started getting creepy'. Examples of the communications included the respondent telling C that he was horny and that he was touching himself while he was thinking of her, asking C to sneak out at night to see him, asking C on two occasions to have sex with him, and sending C pictures of his penis.

7 C's mobile phone was analysed and text messages sent by the respondent to C on 20 July 2013 were retrieved from it. Text messages that the respondent sent to C on 20 July 2013 included messages that were plainly obscene, involving references to, amongst other things, ejaculation. Also on the same day (20 July 2013), the respondent sent C a picture of his erect penis.

8 During his communication to C, the respondent asked C for nude photographs of herself and photographs of her lifting up her top. C did not send the requested photographs to the respondent.

9 In July 2013, complainant D, who was 14 years of age, received a Facebook friend request from the respondent. Within a week of accepting that request, D began receiving 'creepy messages' from the respondent. These messages were as obscene, explicit and inappropriate as those the subject of charges 1 and 2. D sent the respondent a message asking him if he knew how old she was. The respondent replied that he did know how old she was and told her 'I have this thing for younger girls'. The respondent sent messages to D via Facebook over a period of approximately one week. The respondent gave D his mobile phone number but D did not contact the respondent on it.

10 On 9 August 2013, the respondent's girlfriend, E, found the respondent's phone and accessed his Facebook. E found the communications between the respondent and the complainants. E notified D's father about the communications between the respondent and D. D's father questioned D about the messages, after which all complainants told their parents about the communications and the matter was reported to the police.

11 Each of B, C and D completed victim impact statements that disclosed the consequences to them of the respondent's offending. These statement show the very real and significant harm caused to each of the respondent's victims by the offending for which the respondent fell to be sentenced.

I accept that you recognise the seriousness and inappropriate nature of the offending. I also consider that some specific deterrence must be a relevant factor in this sentence. Despite the vigilance of those around you, and that your circumstances may have been difficult, I consider that the sentence should emphasise to you specifically that such behaviour is unacceptable, and should occasion present itself in the future. I heard evidence from your father, who gave impressive evidence of the support you can expect to receive now and in the future. I consider in totality that your prospect of rehabilitation and reclamation are good.

I have reviewed a large number of authorities which deal with these type of offences and have been assisted by the material provided by the prosecution in clarifying current sentencing practices. I take into account also the matters contained in Part IB of the Commonwealth Crimes Act and specifically the principles in s 17A, the factors listed in s 16A of that Act. Although I have outlined all the relevant matters going to mitigation, in my view these matters do not overcome or outweigh the need to impose a term of imprisonment as a reflection of the seriousness of the conduct to which you pleaded guilty. However, it is also made clear by s 17A that imprisonment is to be a sentence of last resort and only to be imposed where a court is satisfied no other penalty is appropriate in the circumstances of the case.

In my view, although a period of imprisonment is warranted, there are factors which indicate that that period of imprisonment should not be immediately required.[3]

13 The judge then convicted the respondent, imposed the sentences of imprisonment and made the orders for cumulation that are set out above. His Honour then said:

That sentence will be wholly suspended for 24 months under s 21B of the Crimes Act 1914. I have considered s 19(4) and decline to make a reconnaissance release order. I have determined that such a sentence is appropriate because of a number of factors. I have mentioned some of them already and I have received further material this morning which I have taken into account in this decision.

The letter from Mr Wilson, who provided a report, was received confirming that you had attended upon him this year. I also received certificates pertaining to your recent life matters, since the matter was adjourned by me in April of this year. A number of significant matters, in my view which are protective aspects, confirm what Mr Wilson considered low risk of re-offending in his report, and what Mr Jobling opined in his report, have been considerable deterrent value. These are materialised as positive advancement in these months. They were described in a letter by your father which was tendered as an exhibit.

In that document he outlines in detail what you have completed in terms of educational training and that you obtained qualification certificates which have allowed you to seek and obtain good employment, which has not only given stability but realistic prospects for advancement. You have relocated from Ballarat to Melbourne where you will manage your life in a more mature and independently responsible fashion. You have no Facebook account, or social media forums, participation. This has been monitored by your father, who has described himself as a lifetime parole officer.

Apart from this you have removed yourself from past patterns of relating involving your last relationship. You have resumed daily contact with your parents and have reconnected with your siblings who live close by in Melbourne. In my view these matters are significant enough to indicate you will understand that this sentence will hang over your head for two years. Should you commit any offending during that period you will breach this sentence. You will then be re-sentenced by me about these offences and you will be re-sentenced on the breach of that suspension.[4]

14 The judge then described the respondent's obligations as a registered sex offender in the following terms:

During that time [15 years] you will be subject to onerous obligations which will regulate most aspects of your life substantially. That is including travel, your ownership and registration of phones, your internet use, house accommodation, addresses, contact with children and other assorted matters, including things as insignificant as tattoos and otherwise.[5]

15 The appellant submits that the sentence imposed fails to adequately reflect the gravity of the respondent's offending in light of the maximum penalties (15 years' imprisonment for charges 2 and 3) and seven years' imprisonment (for charges 1 and 4), the importance of general and specific deterrence in sentencing for offences of this nature and the need to adequately punish. Additionally, the appellant submits that the sentence imposed 'reflects that undue weight was placed by the judge on factors put in mitigation, and in particular the events that occurred during the deferral of the sentence, the respondent's previous good character and his plea [of guilty]'.

16 In arguing that the sentence was manifestly inadequate, the appellant pointed to a number of authorities that emphasise the importance of general and specific deterrence when sentencing offenders for offending of the kind engaged in by the respondent. It cannot be gainsaid that in sentencing with respect to such offending, both general and specific deterrence will be given paramount consideration.[6]

17 As to the objective seriousness of the respondent's offending, the appellant relied upon the following matters:

(a) The offending involved three real child victims.

(b) The respondent knew the ages of these victims and that each were living in his local area; choosing victims who were proximate to him meant he was in a position to have access to them (a meeting did occur with one victim although she left shortly thereafter with no sexual activity taking place and he asked her to meet him on other occasions).

(c) The conduct was frequent, calculated and predatory - it extended over a period of approximately nine months[7] in which time the respondent communicated with the victims in succession (in respect to the procuring offence, the offending spanned six months).

(d) The indecent material communicated was graphic and explicit, which included the respondent sending images of his penis along with commentary of him masturbating to the victims. On two occasions he asked one of the victims to have sex with him. He asked her for nude photographs of herself.

(e) The respondent's conduct was persistent. Although B told him that his messages were 'creepy', he continued to send text messages to her, including one with a picture of his penis and others telling her that he was masturbating. Similarly, when C told him that she would not engage in sexual activity he continued to ask her and said 'I'm still going to be dirty towards you though'.

(f) There was an age difference of 11 to 12 years between the respondent and his victims. When D pointed this out to him, he replied that 'I have this thing for younger girls'.

(g) The conduct has had a lasting effect on the victims, with the fact that the respondent lived in the same area having particular consequences upon them (for example, apprehension of meeting him, exposure to others knowing what occurred).

(h) The motive for the offending was for sexual gratification.

18 Next, the appellant argued that in imposing the sentence, and by adjourning the plea hearing as the judge did, the judge elevated rehabilitation and matters personal to the respondent to a level of primacy, inappropriately outweighing the primary considerations of general deterrence, specific deterrence and punishment. In support of this argument, the appellant pointed to the judge's statements on 14 April 2014 (the day it was said that sentence was to have been imposed) that showed that he recognised that an appropriate sentence passed on the material as it existed at that time would have required 'an element of immediate imprisonment'. Notwithstanding the judge recognised this was the case, it was submitted that the judge was wrong when he adjourned the proceeding for five months so as to enable the respondent to provide additional information about his rehabilitation prospects. While one reading of the appellant's written case might be thought to suggest that the appellant also made complaint about the judge taking into account matters that occurred during the adjournment period, senior counsel for the appellant made it clear before us this morning that no such submission was being made.

19 Finally, the appellant submitted that, given the circumstances of the respondent's offending, the sentence imposed by the judge was 'inconsistent with the proper application of relevant sentencing principles to the facts'. The appellant contended that there was nothing in the circumstances of this case which took it outside the realm of cases where ordinarily one would expect a term of imprisonment to have been imposed.

20 As has been said repeatedly, appellate intervention on the ground that a sentence is manifestly inadequate is not justified simply because the result arrived at below is different, or even markedly different, from other sentences that have been imposed in other cases. Appellate intervention is warranted only where the difference is such that in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.[8] That is, absent an error of the kind referred to in House v The King[9] (acting upon a wrong principle, allowing an extraneous or irrelevant matter to guide or affect the judge, mistaking the facts, or not taking into account some material consideration), the sentence imposed must be shown to be wholly outside the permissible range open to the sentencing judge before an appellate court is empowered to intervene. Crown appeals against sentence should only be brought where there is a compelling case to do so, and not unless the inadequacy of the sentence is clear and egregious.[10]

21 Insofar as the appellant might be taken as suggesting that there was error of the kind identified in House in the sentencing process, we reject that submission. Notwithstanding the appellant's submissions, plainly the judge took account of the correct maximum penalties for the charges to which the respondent pleaded guilty.[11] Similarly, there can be no doubt that the judge had regard to the objective seriousness of the respondent's offending.[12] Likewise, there can be little doubt that the judge recognised the importance of general and specific deterrence.[13] Additionally, there is nothing in the judge's reasons that suggest that matters in mitigation were given undue weight or that the judge took into account in mitigation matters he was not entitled to take into account.[14] In the circumstances, it is not necessary for us to consider what course might be open in a case where the Crown establishes no more than the existence of an error of the kind referred to in House.[15]

22 This appeal turns on the question of whether when one examines the sentence imposed by the judge one can infer that there must have been a failure properly to exercise the sentencing discretion which the law reposed in the sentencing judge.[16]

23 On any view, the judge's sentence was very lenient. There is force in the appellant's submissions as to the seriousness of the respondent's offending, and general deterrence, specific deterrence and punishment being required to be paramount considerations in sentencing for offending of this kind. That said, we reject the appellant's criticisms of the judge's conduct of the plea hearing in adjourning the matter for the purpose of the obtaining of further material. This was a matter of practice and procedure well within the judge's discretion, and there is no basis for this Court to interfere in it.

24 Questions of manifest inadequacy do not admit of lengthy exposition.[17] While the sentence imposed upon the respondent was very light we are not persuaded that it was outside the range of sentences permissibly open to the judge. The fact that it can be said that in cases of this kind one ordinarily expects a term of immediate imprisonment does not mean that it was not open to the judge in all of the circumstances of the matter before him to impose the sentence he ultimately pronounced. Further, as has been said before, while the consideration of so-called comparable cases has its role to play in determining whether a particular sentence was within the permissible range of sentences open to the sentencing judge, such assistance can only be limited, having regard to the myriad of matters (which are never the same in each case) that must be taken into account by a sentencing judge.[18]

[1] The applicant first pleaded guilty at a committal mention on 4 February 2014.

[2] In fact the offending commenced in May 2012 and ended in July 2013, but the parties accept that the respondent's offending was committed for three months between May and August 2012 in respect of B, for six months between January and July 2013 in respect of C, and for approximately one week in July 2013 in respect of D, making a total of nine months.

[3] DPP v Walls (Unreported, County Court, Judge Gucciardo, 22 September 2014) ('Reasons') [25]-[27].

[6] See generally Western Australia v Collier [2007] WASCA 250; (2007) 178 A Crim R 310, 321 [43]; R v Gajjar [2008] VSCA 268; (2008) 192 A Crim R 76, 81 [27]; DPP (Cth) v Hizhnikov [2008] VSCA 269; (2008) 192 A Crim R 69, 74 [27]; and DPP (Cth) v D'Alessandro [2010] VSCA 60; (2010) 26 VR 477, 483 [21].

[8] Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584, 605 [58] (Gaudron, Gummow and Hayne JJ); and Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 ('Hili'), 538-9 [59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[9] [1936] HCA 40; (1936) 55 CLR 499, 505 ('House').

[10] DPP v Brown [2009] VSCA 314 [23] (Maxwell P, Harper JA and Williams AJA); and DPP v Chatterton [2014] VSCA 1 [83]-[85] ('Chatterton') (Weinberg, Whelan and Priest JJA).

[12] Reasons [12]-[14] and [25]-[26].

[14] Reasons [15]-[23] and [32]-[34].

[15] Cf Chatterton [2014] VSCA [88]-[95].

[16] House [1936] HCA 40; (1936) 55 CLR 499, 505; and Hili [2010] HCA 45; (2010) 242 CLR 520, 538 [58].

[17] Hili [2010] HCA 45; (2010) 242 CLR 520, 539 [59].

[18] See for example Bussell (A pseudonym) v The Queen [2014] VSCA 310 [24] (Weinberg and Beach JJA) and the cases referred to therein.