Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

File No : IND 2014 of 2004, IND 155 of 2005

Criminal law and procedure - Appeal against sentence - Sexual offences against child - Possession of child pornography - Whether sentencing Judge failed to properly apply totality principle - Whether sentence was manifestly excessive

Sentencing Legislation Amendment and Repeal Act 2003 (WA), s 22, Sch 1, cl 2(1)

Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330

Jarvis v The Queen (1993) 20 WAR 201

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

R v Fellows [1997] 2 All ER 548

R v Jones [1999] WASCA 24; (1999) 108 A Crim R 50

R v Liddington (1997) 18 WAR 394

R v Rossi (1988) 142 LSJS 451

R v Russell (1986) 8 Cr App R (S) 367

R v Stroemp (1995) 105 CCC (3d) 187

R v Travell [1998] EWCA Crim 3529; [1997] 1 Cr App R (S) 52

Evangelista v The Queen, unreported; FCt SCt of WA; Library No 920051; 30 January 1992

Germain v The State of Western Australia [2004] WASCA 293

Magee v The Queen [1980] WAR 117

R v Ward [1999] WASCA 157; (1999) 109 A Crim R 159

1 STEYTLER P: This is an application for leave to appeal against sentence. The offences involved were particularly serious. There were 23 of them, charged on two different indictments. The first was indictment number 2014/04. This charged 14 offences. Twelve of these (counts 1 to 12 on that indictment) were sexual offences committed against a young boy, "N". Counts 13 and 14 charged the appellant with possession of child pornography. The second indictment, indictment number 155/05, charged 9 offences. These were also sexual offences. They were committed against two young brothers, "C" and "K".

2 The offences charged in counts 1 to 12 of indictment 2014/04 were committed during the period 1 January 2000 to 21 September 2004. The complainant, N, was 10 or 11 years old when the offending began. The appellant, a 55-year-old man, fostered a warm friendship with N's parents. They, and N, trusted the appellant and regarded him as an "uncle-type figure". The first two counts involved, respectively, an offence of indecent dealing with N (who, as I have said, was then 10 or 11 years old), by kissing him on the mouth and an offence of sexual penetration, involving an act of fellatio. These offences, as with all of the others, were committed at the appellant's home.

3 The offences the subject of counts 3, 4 and 5 were committed when N was 12 years old. They involved two instances of fellatio and one of indecent dealing, when the appellant rubbed his penis against that of N. That charged as count 6 occurred at the same time, when the appellant took indecent photographs of N.

4 The offences the subject of counts 7 and 8 occurred when N was 13 years old. Count 7 charged an act of anal penile penetration and count 8 charged an indecent dealing brought about by the appellant's masturbation of himself in front of N.

5 The offence charged in Count 9 occurred when N was 13 or 14 years old. The appellant asked him to remove his clothing and lie on the appellant's bed. The appellant then photographed N with a digital camera while N was lying on his back.

6 The offences the subject of counts 10 and 11 were committed when N was 14 years old. These were both counts of fellatio. The offence the subject of count 12 occurred at the same time, when the appellant masturbated in front of N.

7 As to counts 13 and 14 on indictment 2014/04, detectives from the Child Abuse Investigation Unit executed a search warrant at the appellant's home on 27 September 2004. They seized computer hard drives, assorted discs and various computer equipment. They found two discs containing 26 images of child pornography, depicting various naked male children under the age of 16 years in poses showing their penises. This gave rise to the first charge of possession of child pornography (count 13). The search also revealed that two other discs contained 4066 images of child pornography, incorporating pictures of male children under the age of 16 years in various poses. These were sexually explicit and some of them involved sexual activity. This gave rise to the second charge of possession of child pornography, the subject of count 14.

8 The offences the subject of indictment 155/05 which, as I have said, were committed against two young brothers, occurred between 5 February 2001 and 9 July 2004.

9 The first two offences charged (counts 1 and 2) involved C, who was then only 7 years old. Once again, the appellant had built up a relationship of trust with C and his parents, and also with C's brother, K. The appellant was then babysitting C. He dealt indecently with him by touching C on his penis and having C touch the appellant's penis.

10 The offences the subject of count 3 and 4 concerned K. They occurred during 2001 when he was 10 years old. The appellant was babysitting K and C, and also their sister. Both counts charged offences of indecent dealing involving the fondling of K's penis.

11 The offences the subject of counts 5, 6 and 7 involved C. They were committed during school holidays in 2002, when C was still aged 7 years. The appellant was babysitting C and his sister. The first offence (count 5) was one of indecent dealing. The appellant was naked from the waist down. He asked the complainant to remove his pants and underwear. He did so reluctantly and the appellant then hugged him. Counts 6 and 7 also charged offences of indecent dealing involving the touching of C's penis by the appellant and the appellant telling C to hold the appellant's penis.

12 Counts 8 and 9 involved K, who was then 13 years old. He rode his bicycle to the appellant's home in order to inquire about a compact disc that he thought the appellant might sell. The appellant was then the owner of a music store. The appellant invited K into his house and took him to his study. There he removed K's pants and underwear and took hold of his penis (count 8). The appellant then removed his own pants and guided K's hand to his penis. He made K masturbate him (count 9).

13 The offences against N only came to light when the appellant's home was searched, arising out of his use of a credit card to access the internet site from which he had downloaded the pornographic images. In the course of the search the photographs of N were discovered. The offences against K and C were discovered when their mother asked them if the appellant had interfered with them. They both revealed what had been done to them by the appellant.

14 The appellant, who turned 56 years old shortly after he was sentenced, is a married man. He has had a successful career. He worked in the radio industry for 20 years, having started as an office boy and then having worked his way up to the office of Company Secretary of a company operating a well-known radio station. Thereafter, he worked for a short period of time as a sales executive at another radio station before becoming the personal assistant to a Federal Member of Parliament. He held this office for some five years before taking up employment with a Federal Senator as an Electorate Officer. Then, in 2002, his family trust purchased a retail CD and DVD store which he operated with the assistance of his daughter. He has a large number of references speaking very favourably of his character. He has no previous convictions.

15 Pre-sentence, psychiatric and psychological reports which have been prepared in respect of the appellant reveal some conflicting attitudes. While the appellant made full admissions in respect of his offending, and expressed considerable remorse, he maintained a denial of any ongoing sexual interest in male children. He denied that the photographs which he took of N were used for sexual gratification and said that he accessed the child pornography site out of curiosity, denying that he derived any sexual gratification from it. He expressed abhorrence at the images that he saw, saying that he appreciated that children were being victimised and that he contributed to this by paying money to view the material. However, he displayed some frustration with the manner in which he was discovered, describing himself as having been "utterly stupid" to pay for the pornography downloaded by him by means of his credit card.

16 He appears to have only limited insight into his offending behaviour, describing his relationship with one of his victims as having been "intellectually stimulating", "affectionate" and "extremely close".

17 The appellant has a history of depression and anxiety disorders. Dr Paul Skerritt, who performed a psychiatric assessment of the appellant at the request of his solicitor, has expressed the opinion that it is "not easy to see much connection between his frank psychiatric illness and the alleged offences". However, he suggested that alcohol (the appellant had been drinking excessively during the period of his offending), which commonly attends depressive illness, appears to have had a part in lowing his inhibitions to take part in the offences committed by him.

18 The appellant has said that, on one occasion when he was 10 years old, a friend's father touched his penis and asked the appellant to do the same, which he refused to do. However, the assessment of the psychologist who interviewed the appellant is that it is highly unlikely that this event can in any way be linked to the current offences. This appears to be borne out by the appellant's comment to that psychologist to the effect that, when the incident occurred, he did not think anything of it and that it did not cause him any distress.

19 Dr Skerritt has suggested that the appellant has good prospects of rehabilitation. A psychologist employed by the Department of Justice has assessed the appellant as presenting a medium to low risk of re-offending. The appellant is willing to undergo treatment while in custody.

20 The appellant pleaded guilty to all offences at the earliest opportunity and was fully co-operative in respect of them.

21 The sentencing Judge, after outlining the offences committed by the appellant, the appellant's personal circumstances, some of the matters raised in the psychological and psychiatric reports and various matters in mitigation, said that the nature of the appellant's offending, over a long period of time, overwhelmed matters that were favourable to him. She said that he had been a neighbour of those against whom he had offended, that he had been entrusted with the task of looking after young children and that he had fostered warm friendships with their parents and with the children themselves. She said that he had abused his friendships and taken advantage of his position of trust. She sentenced the appellant to a total term of 9 years and 6 months' imprisonment. That comprised a total term of 46 months' imprisonment in respect of counts 1 to 12 on indictment number 2014/04, a cumulative term of 24 months' imprisonment in respect of counts 13 and 14 (a term of 24 months' imprisonment was imposed in respect of count 13 and one of 20 months' imprisonment in respect of count 14, with those sentences to be served concurrently with each other) and a total term, also to be served cumulatively, of 44 months' imprisonment in respect of the offences charged in indictment number 155/05. The appellant was ordered to be eligible for parole and his sentence was backdated to 7 December 2004, the date upon which he had been taken into custody.

22 There are only two grounds of appeal. These relate to the sentences imposed in respect of counts 13 and 14 on indictment number 2014/04. The first ground is that the sentences imposed in respect of those counts should have been ordered to be served concurrently with the total term of 7 years and 6 months' imprisonment imposed in respect of the other offences, "in order to properly apply the totality principle". The second ground is that the total sentence of 2 years' imprisonment for possession of child pornography "was manifestly excessive having regard to the nature of the offences and the sentences imposed for the other offences of which the applicant was convicted".

23 I will deal, first, with the contention that the total sentence of 2 years' imprisonment imposed in respect of counts 13 and 14 was manifestly excessive.

24 I have already described the nature of the material the subject of those counts. The trial Judge said that the 4066 images the subject of count 13 were "degrading and humiliating". It has repeatedly been pointed out that possession of this kind of material, even if for private purposes, necessarily creates a market for the corruption and exploitation of children. As Ipp J said in R v Liddington (1997) 18 WAR 394 at 403, children are abused, violated and degraded in order to create a market of this kind. His Honour also there remarked that people with pederastic inclinations could be stimulated to commit pederastic acts on viewing these images: see also R v Russell (1986) 8 Cr App R (S) 367; and R v Travell [1998] EWCA Crim 3529; [1997] 1 Cr App R (S) 52. In R v Jones [1999] WASCA 24; (1999) 108 A Crim R 50 at 51 Kennedy J referred with approval to the following extract from the judgment of Morden ACJO in R v Stroemp (1995) 105 CCC (3d) 187 at 191:

"The possession of child pornography is a very important contributing element in the general problem of child pornography. In a very real sense, possessors such as the appellant instigate the production and distribution of child pornography - and the production of child pornography, in turn, frequently involves direct child abuse in one form or another. The trial judge was right in his observation that if the courts, through the imposition of appropriate sanctions, stifle the activities of the prospective purchasers and collectors of child pornography, this may go some distance to smother the market for child pornography altogether. In turn, this would substantially reduce the motivation to produce child pornography in the first place."

25 His Honour referred (at 52) also to the decision of the Court of Appeal in R v Fellows [1997] 2 All ER 548, where Evans LJ, delivering the judgment of the court, said:

"There is enormous public disquiet at the potential which the internet offers for the international transmission of pornography, in particular for those whose perverted tastes include collecting and viewing indecent photographs of children. Add to this the public revulsion against paedophilia in all its forms and it becomes clear, in our judgment, that heavy deterrent sentences must be imposed when serious offences, which are not always easy to discover, come to light."

26 As these cases make plain, there is a very powerful need to discourage the acquisition of this kind of material and, hence, the activities of those who make it available. The seriousness with which the legislature views offences of this kind is evident from the provisions of s 60(4) of the Censorship Act 1996 (WA) which provides for a penalty of 5 years' imprisonment in the case of a person who possesses or copies child pornography. In Jones, decided not long after the enactment of the Censorship Act, Kennedy J observed (at 52) that, by having increased the penalty for simple possession of child pornography from what it had been under the former Indecent Publications and Articles Act 1902 (WA), the Parliament was "inviting courts vigorously to pursue the objectives of general deterrence and denunciation in sentencing offenders."

27 Counsel for the appellant sought to bolster his submission that the sentences imposed in this case were manifestly excessive by tendering a table of comparative sentences which had been imposed in this State between 9 November 2004 and 7 April 2005 in cases of possession of child pornography. While it is undoubtedly true that this table demonstrates that sentences for offences of this kind (including cases involving very large amounts of pornographic material) have most often been sentences of 12 months' imprisonment or less, I am not at all persuaded that this should have the consequence that the sentences imposed in this case were not open.

28 In my opinion, given the maximum sentence provided for by the legislature, the very large number of pornographic items in the appellant's possession, their degrading and humiliating character and the limited circumstances of mitigation available to the appellant, it cannot be said that the sentences imposed by the sentencing Judge were not open to her. While there are many who have testified to the appellant's prior good character, these character references can have little weight by way of mitigation generally when regard is had to the long period of the appellant's offending in respect of his three different victims. Similarly, while he was entitled to some discount in respect of his early plea of guilty, which was reflective of co-operation, willingness to facilitate the course of justice and some remorse, that must be viewed in a context in which he had been caught "red-handed" in possession of the child pornography. It is well established that an appellate court may not interfere with the sentences imposed by the sentencing Judge merely because it might have taken a different view. It must be shown that the court at first instance has failed to properly exercise its discretion: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671 - 672. In my opinion, no such failure has been demonstrated.

29 I would consequently not be prepared to uphold this ground.

30 That brings me to the ground of appeal which relies upon the totality principle. In Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 307 - 308, McHugh J described this principle as follows:

"The totality principle of sentencing requires a judge who is sentencing an offender for a number of offences to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved."

His Honour went on (at 308) to refer to the following remarks from King CJ in R v Rossi (1988) 142 LSJS 451:

"There is a principle of sentencing known as the principle of totality, which enables a court to mitigate what strict justice would otherwise indicate, where the total effect of the sentences merited by the individual crimes becomes so crushing as to call for the merciful intervention of the court by way of reducing the total effect."

See also Jarvis v The Queen (1993) 20 WAR 201 at 205 - 207, per Ipp J, and Herbert v The Queen [2003] WASCA 61; (2003) 27 WAR 330 at 334 - 338, per Malcolm CJ, and 364 - 366, per Anderson J.

31 There is no doubt that, in this case, the total sentence of 9 years and 6 months' imprisonment was severe (and I bear in mind, in this respect, the application, by the sentencing Judge, of the provisions of s 22 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA), read with cl 2(1) of Sch 1 thereof). However, I am unable to accept that the total sentence is so severe as to infringe the totality principle, which was expressly taken into account by the sentencing Judge. Given the extremely serious, and prolonged, nature of the offences committed by the appellant upon very young children, his gross breach of trust, and the seriousness with which offences of this kind are viewed by the legislature when regard is had for the maximum penalties able to be imposed, it seems to me that it cannot be said, in this case, that the total sentence imposed upon the appellant was more than a just and appropriate measure of the total criminality involved or that the total sentence imposed was so crushing as to call for intervention by this Court.

32 I would consequently decline to uphold this ground also.

33 While I would grant the appellant leave to appeal, it follows, from what I have said, that I would dismiss the appeal.

34 ROBERTS-SMITH JA: I agree with the reasons for judgment prepared by Steytler P and have nothing further to add.

• Personal circumstances of the appellant
• The sentencing Judge's remarks
• Grounds of appeal
• Manifestly excessive
• Totality principle
• Conclusion