Court of Appeal (WA)|2004-10-08|Before: Malcolm CJ

Kaye v The Queen [2004] WASCA 227 (8 October 2004)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : KAYE -v- THE QUEEN [2004] WASCA 227

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Criminal Law - Offences under s 50DB(1) of the Crimes Act 1914 - Sentencing - Mitigating factors - Whether sentence manifestly excessive

Crimes Act 1914 (Cth), s 16A(1), s 50DB(1)

Sentencing Legislation Amendment and Repeal Act 2003 (WA)

Respondent : Commonwealth Director of Public Prosecutions

R v Lee [2000] WASCA 73; (2002) 112 A Crim R 169

R v Ruppert; unreported; County Court of Victoria; 19 August 1998

R v Liddington (1997) 18 WAR 394

1 MALCOLM CJ: This is an application for leave to appeal against sentence. The applicant was convicted in the District Court on 24 February 2003 on one count of offering to assist a person to engage in committing an act of indecency on a person under the age of 16 years outside Australia contrary to s 50DB(1) of the Crimes Act 1914 (Cth) ("Crimes Act"). The conviction followed a trial over some five days.

2 The trial Judge sentenced the applicant to imprisonment for 6 years with a non-parole period of 3 years. The maximum penalty for the offence is imprisonment for 17 years.

3 Having abandoned ground 2, which related to the trial Judge's consideration of the applicant's lack of remorse, the applicant seeks leave to appeal on the following grounds, namely:

1 The sentence of 6 years with a non-parole period of 3 years was manifestly excessive.

(i) The Crown conceded that the conviction related to one person only; and

(ii) The Crown conceded that the applicant carried on a legitimate travel business.

...

3 Failing to give any or any sufficient weight to the applicant's antecedents.

(i) The applicant was aged 71 at the date of sentencing;

(ii) The applicant had no relevant prior record;

(iii) The applicant had made an excellent contribution to the community.

4 Failing to give any or any sufficient weight to the applicant's ill health which is such that a term of imprisonment would have a greater impact upon him than on an offender who was not in such ill health.

4 There is no challenge to the material facts as found by the learned sentencing Judge in relation to the circumstances in which the offence was committed or the applicant's background, other than the question of the extent to which account was properly taken of the relevant circumstances referred to in the grounds of appeal.

5 In October 2000 the applicant was living at his home in Bayswater. At that time a classified advertisement was placed in the WSO community newspaper in Perth. The advertisement read:

"Thai guy, young, fit hunk, caring and English-speaking, would like to be your personal guide when you visit Thailand. Prefer older men. Contact my friend in Perth -"

6 A contact number, W225, was then given, which was the specific number that the newspaper had allocated to the advertisement.

7 A Mr Adair saw the advertisement while visiting a spa and sauna establishment in Perth. At the time, Mr Adair was thinking of visiting Thailand and procuring the services of an English-speaking guide. He responded to the advertisement by letter, and that letter was duly passed on to the applicant. By letter dated 12 November 2000 and signed in the name of Jonathan Kaye, the applicant supplied his own contact details to Mr Adair, in essence inviting Mr Adair to contact him and discuss the matter further.

8 Mr Adair subsequently contacted the applicant and inquired about the accommodation available in Thailand and the services the applicant could provide should Mr Adair decide to accept the applicant's offer to travel to Thailand with him.

9 In late November 2000 Mr Adair, who was visiting Perth, attended the applicant's Bayswater unit, in response to the applicant's invitation, in order to further discuss the proposed trip to Thailand. The applicant indicated that he operated a travel service for persons seeking to travel to Thailand. He owned or had an interest in a unit in a complex called Viewtalay at Jomtien Condotel in Pataya, Thailand. He was able to rent out this unit during periods when not residing there himself. He was also in a position to organise accommodation in serviced apartments in the same complex for a most reasonable price. The applicant indicated to Mr Adair and various other people that he was able to use his contacts to arrange guides and to take tourists to outer areas in Thailand.

10 During the course of the discussion at the applicant's Bayswater unit, Mr Adair noticed a group of six photographs on a wall. Some of the photographs showed the applicant with three young-looking Thai boys. The applicant told Mr Adair that he had taken these boys into his care, that he was essentially their guardian and that they were "family". Material later supplied during the trial indicated that the applicant had formally adopted at least one Thai boy.

11 During the meeting the applicant showed Mr Adair a number of loose photographs of Asian boys. Mr Adair also saw a number of pieces of paper, apparently linked with the photographs, each of which appeared to bear the name of a boy and a number, purportedly the age of the named boy. The applicant discussed one of the boys in the six photographs on the wall, referring to him as "Porn" and said that he had had sex with the boy who was aged 16. The applicant also said that he had performed oral sex on another of the younger boys in the same set of photographs.

12 The applicant then referred to the loose photographs of boys and said that any of the boys in those photographs was available as a sexual partner and that he could arrange a meeting if Mr Adair so desired. He went on to say that Mr Adair would be able to take any of the boys back to his apartment for a sexual encounter. The applicant also said that boys over the age of 15 years received an identification which apparently permitted them to have sex and that the identification would allow security personnel to grant them access to the apartment complex. He indicated that both Porn and another acquaintance of his, a transvestite, were in a position to bring boys into the apartment rooms. The applicant then stated that a sexual encounter with a boy would normally cost Mr Adair between 200 and 300 baht, whereas the applicant himself only had to pay 100 baht, and that he was able to provide boys or girls of any age.

13 Mr Adair then informed the applicant that, although he admitted to a mild curiosity about a possible sexual encounter with a male aged over 18 while in Thailand, he was not interested in the proposed activity. The applicant was not deterred by the expressed lack of interest, and continued to talk about sexual relationships with young boys.

14 At the meeting Mr Adair paid a $500 deposit for the proposed trip to Thailand. He met with the applicant again in late December 2000 at a hotel near the applicant's unit, when he paid the balance of the cost of the trip and further discussed the trip with the applicant. While driving the applicant back to his unit after the meeting, Mr Adair inquired as to the materials he should take on the trip. The applicant then provided him with a list that he copied down. The list included items for "protection and stimulation" and, at the applicant's suggestion, a "honey dispenser".

15 During his dealings with Mr Adair, the applicant mentioned a person called Mo, who lived in Thailand and was apparently a Buddhist monk, and asked Mr Adair to write a letter to Mo simply by way of contact. Mr Adair then sent to Mo a very general letter with no mention of sexual matters. He did not receive a reply. The applicant later telephoned Mr Adair regarding a letter he received from Mo suggesting that Mr Adair could take either Mo or his son. Mr Adair replied to the effect that he thought he would prefer someone younger.

16 The proposed trip to Thailand never eventuated, because about a week prior to the departure date, the police attended the applicant's premises in Bayswater. The applicant was subsequently arrested in connection with the charge on which he was later convicted.

17 In the course of argument, a question was raised whether the transitional provisions in Sch 1 item 2 of the Sentencing Legislation Amendment and Repeal Act 2003 (WA) ("the Repeal Act") applied in respect of Commonwealth offences. This provision is to the effect that under the new State legislation a sentencing Judge is obliged to impose a sentence which is two-thirds of the length of the sentence the Judge would have imposed under the former legislation. Counsel were given the opportunity to make written submissions on this point, which is required to be considered in the context of s 19AA of the Crimes Act 1914 (Cth). The transitional provisions in Sch 1, item 2 of the Repeal Act do not apply to sentencing in respect of federal offences. Counsel for the Crown further contended that those provisions were in the nature of legislative calculations determining the length of time a State offender would serve in custody and on parole, and consequently did not apply to federal offences. That submission is clearly correct: cf R v Oancea (1990) 51 A Crim R 141; R v Paunovic (1990) 51 A Crim R 174; and R v El Karhani (1990) 21 NSWLR 370.

18 The sentence for an offence against a law of the Commonwealth is to be determined in accordance with the provisions in Pt 1B of the Crimes Act. Section 19AA of that Act picks up State laws dealing with the remission and reduction of sentences. Thus it was by virtue of s 19AA that the former s 95(2) of the Sentencing Act 1995 (WA) was picked up and applied to offenders to be sentenced for an offence against Commonwealth law. Section 95(2) provided for a remission of one-third of the sentence imposed. Hence this had to be taken into account when imposing a sentence for an offence against a law of the Commonwealth committed in this State. In practice, this meant that in setting a non-parole period pursuant to s 19AF of the Crimes Act, the length of the non-parole period could not exceed two-thirds of the head sentence.

19 Following the repeal of s 95(2) of the Sentencing Act, there is no law in Western Australia providing for the remission or reduction of sentences. It follows that there is nothing to be "picked up". The Western Australian legislation has the effect that the sentence imposed for an offence against a State law under the new legislation must be two-thirds of the sentence that would have been imposed for the offence under the former legislation. The current State provisions determine only how the length of the sentence which is to be imposed is determined.

20 It is convenient to deal with grounds 3 and 4 first.

Ground 3: Failure to give any or sufficient weight to the applicant's antecedents

21 Counsel for the applicant submitted that the learned sentencing Judge had failed to give any or sufficient weight to the applicant's antecedents. The particulars of the ground were that the applicant was aged 71 years at the time of sentencing, had no relevant prior record, and had made an excellent contribution to the community. It was submitted that the sentence on a 71-year-old man with various health conditions was manifestly excessive in the circumstances. In R v Holyoak (1995) 82 A Crim R 502, a decision of the New South Wales Court of Criminal Appeal, the applicant had been convicted of two counts of indecently assaulting a child under his care. The offences had occurred 20 years prior to the trial and the applicant was aged 75 years at the time of sentencing. Handley JA, Allen and Hulme JJ held that a sentence of 5 years with a minimum term of 4 years was manifestly excessive in the circumstances. As to the applicant's age, his Honour Allen J said at 507:

"...Counsel [for the applicant] points out that the sentence imposed as a minimum term is such that the possibility of the applicant dying during the minimum term, despite his present state of health, is quite real. So it is. It is not to be contemplated that his Honour would not have realised that. Particular complaint is made that all his Honour said, apart from the reference to his age to which I have already referred, was: 'Age is not a license to commit sexual offences, nor should it be thought that a person who commits such offences can then expect to be allowed to go free merely because of advanced years.' I find no fault with that observation. Indeed it would seem to be taken directly from the judgement of Badgery-Parker J in DCM (unreported, Court of Criminal Appeal, NSW, 26 October 1993) with whose reasons for judgement Kirby ACJ agreed. The question, rather, is whether there was other significance in his age such that his Honour's failure to identify it and specially allow for it is demonstrative of error on his part. It is, of course, clear that a sentence imposed upon an offender when he [is] of such an age that, should he not die in gaol, he will have little worthwhile life left after his release is likely to bear more heavily upon the offender than a similar term imposed upon a younger man who can look forward to a worthwhile life after release. This is so obvious that I would not infer that his Honour did not recognise it. The real question, as I see it, is whether the objective gravity of the offences in the present case were such that it was within the proper bounds of judicial discretion for his Honour to impose the sentence that he did not withstanding what, having regard to the applicant's age, the circumstances well might be. It is simply not the law that it never can be appropriate to impose a minimum term which will have the effect, because of the advanced age of the offender, that he may well spend the whole of his remaining life in custody. A helpful review of the relevant authorities is contained in Braham (1994) 73 A Crim R 353. It is submitted for the applicant that Angel J was correct, in that case, in stating (at 369): 'Where advanced age is a factor justifying significant leniency - and the learned sentencing judge so held in fixing the disproportionate head sentences he did - ex necessitate considerations of ... proportionality of sentencing are irrelevant and the case is an inappropriate vehicle to give voice to general deterrence - as opposed to personal deterrence or deterrence to others of a like age.' I would not accept, however, that any of those considerations is irrelevant when sentencing a person of advanced age who, albeit generally in good health, has a statistically short expectation of life. Of course, account must be taken of how much more onerous it is for him to serve a gaol sentence than it would be if he were younger. That is material to the appropriate length of the full-time custody. It does not make proportionality irrelevant. Likewise, the effect of the sentence upon general deterrence is not irrelevant. What, however, is appropriate by way of full-time custody, viewed from the point of view of general deterrence, must be considered in the light of the impact upon public perception of a gaol sentence imposed upon a man of such advanced years upon whom the sentence would bear the more heavily because of his very age and the real risk that he will never walk free."

22 In the present case, the applicant was 71 years old when sentenced, relatively old, but somewhat younger than the applicant in Holyoak. Neither counsel for the defence at the time of sentencing, or counsel for the applicant at the hearing of the appeal, expressed concern that there was a significant risk of the applicant dying in custody. Counsel for the applicant contended only that age was a mitigating factor.

23 In relation to the applicant's age, the learned Sentencing Judge said:

"It is noted that at this time in your life the impact of this conviction upon you is likely to be significant and that there may well be difficulties in you rebuilding your social life upon re-entering the community if a custodial disposition is considered appropriate. In the end result, given the relatively minor psychiatric findings and physical examination findings, the writer of [the psychiatric report] did not consider that there were any matters of particular relevance that should be brought to the court's attention in mitigation with respect to those matters. No direct psychiatric recommendations were made with respect to your sentencing or any appropriate or necessary ongoing forms of treatment."

24 The other particulars of ground 3 were that the learned sentencing Judge failed to take any or sufficient account of the fact that the applicant had no relevant prior record, and that he had made an excellent contribution to the community.

25 In discussing the applicant's antecedents, her Honour said:

"At the outset, it must be commented that it is of considerable concern that you continue to deny responsibility for this offending or accept the verdict of the jury. This is clearly indicative of a lack of remorse on your part and this is compounded by the fact that you seek to blame others for your current predicament. You do not appear to have a great deal of family support in the sense that your three sons, who are adults, live in another state and do not maintain contact with you.

Your daughter, however, resides in Western Australia and, to her credit, she has been a source of some support to you through the period of time in which you have been involved in the criminal justice system. This morning I have received on your behalf a letter from your daughter who writes in a manner that suggests that she has both love and respect for you and is very concerned about your circumstances and your health. She continues, it would seem to me, to support you despite this conviction."

26 In the course of her sentencing remarks, the learned sentencing Judge referred to the applicant's education and teaching career, stating that his abilities as a teacher and his interest in education both generally and in geography, in particular, had been repeatedly recognised over a period of time. Her Honour noted that the applicant had been the author of a geography textbook. He had also made a meaningful contribution to the Jewish community in Perth in the past. In assessing the weight of these antecedents, her Honour remarked:

"It is mitigatory that you are of prior good character in the sense that you have no previous relevant convictions for this type of offending, and in the past it must be conceded that you have contributed to the community through your work as a teacher and educator and through some of the organisations to which you have belonged. You have also, I accept on the material before me, been a good, caring and diligent father to your children. As against that, however, there is the disturbing factor that you refuse to accept responsibility for your offending which of course means, as has been noted, that you have no remorse and further that you are currently resistant to treatment, which does not bode well for your rehabilitation."

27 Her Honour referred to the pre-sentence report obtained as follows:

"The conclusion of the writer of the pre-sentence report is essentially that as a result of your inability to accept responsibility for your offending behaviour, it is considered that you would derive no therapeutic gain or gains from a community based disposition ... Overall, your risk of re-offending in a similar way to this current offence is considered to be medium."

28 It is apparent from the sentencing remarks that her Honour, having considered the applicant's age, antecedents and personal circumstances, found that, in the context of the offence, the need for general deterrence outweighed any mitigating factors so as to preclude a non-custodial sentence. Her Honour said:

"Whilst there are some mitigatory factors which apply, as I have mentioned, it is the case that when one is considering offending of a sexual nature, and I think this falls broadly and properly into that category, such material cannot prevail against the very clear requirement for deterrence to be stressed in the sentencing process."

29 Her Honour also referred to the Second Reading Speech of the former Minister for Justice, which was quoted by Kennedy J in R v Lee [2000] WASCA 73; (2002) 112 A Crim R 169 remarking that, in her view, the speech eloquently and clearly explained the philosophy underlying the legislation. She went on to say that general deterrence is paramount in the sentencing process for this type of offending.

30 In my opinion, the learned sentencing Judge carefully considered the applicant's age and antecedents. An examination of her Honour's sentencing remarks does not support the conclusion that she failed to give any or sufficient weight to those factors. It follows that ground 3 must fail.

Ground 4: Failure to give any or sufficient weight to the applicant's ill health

31 Ground 4 contended that the learned sentencing Judge erred by failing to give any or any sufficient weight to the applicant's ill health, which was such that a term of imprisonment would have a greater impact upon him than on an offender who was not in such ill health.

32 An offender's ill health is only a factor tending to mitigate punishment when it appears that imprisonment will be a greater burden on the offender by reason of his state of health, or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health: R v Smith (1987) 44 SASR 587. While health and age are relevant to the length of any sentence they will usually not prevent the imposition of a custodial sentence if imprisonment is otherwise warranted. An appropriate balance has to be kept between the criminality in question and any health or shortening of life considerations: R v Sopher (1993) 70 A Crim R 570.

33 In her sentencing remarks the learned sentencing Judge considered the applicant's health at some length, saying:

"I have considerable material before me documenting your health difficulties over the years. You have a long history of anxiety and depression and certainly in 1992, whilst in Victoria, you were under the care of a psychiatrist who referred to you as suffering a major breakdown in 1981. You have been taking medication over the years to deal with this problem and in order to control your depression.

In 1996 a report again makes it clear that you were under the care of a consultant psychiatrist in Victoria and had been so since 1989, receiving treatment for anxiety, depression and panic attacks. In June of 2002 your general practitioner, Dr Ngo, who has had considerable contact with you, referred to your ongoing medical and psychological problems and noted that you required community support with respect to living arrangements and suchlike."

34 Her Honour outlined the applicant's medical history in some detail, and acknowledged the various conditions that the applicant had suffered, including an arteriovenous malformation in the brain, peptic ulcers, ongoing skin ailments including the removal of squamous-cell carcinomas and surgery for hernia in 2002. Her Honour noted that the arteriovenous brain condition did not prevent the applicant from continuing to work at the time it was diagnosed, and that subsequent testing of the applicant's mental state and condition found no evidence of dementia. Her Honour also noted that none of the applicant's skin conditions had been life threatening, and that the medical reports provided to the court indicated that the applicant had made a relatively good recovery from the hernia surgery in 2002.

35 The learned sentencing Judge also acknowledged that during 2001 and 2002 the applicant had received domestic assistance from Meals on Wheels and Silver Chain, and that during the post-operative recovery period the applicant had requested an increase in the hours of support provided by Silver Chain. Her Honour found that in 2000 and 2001 the applicant had also requested and received food assistance from the Salvation Army, and in 2001 and November 2002 had made inquiries about the cost of a live-in carer.

36 In relation to the applicant's arteriovenous malformation, the learned Judge noted that the medical opinion in respect of his condition was that, provided no haemorrhage was suffered, the condition could well remain asymptomatic. The author of the relevant medical report observed that the applicant's involvement in the legal process posed no known additional risk of haemorrhaging occurring. Her Honour noted that no specific ongoing therapy or surgery had been recommended for the condition.

37 The learned sentencing Judge found that, although the applicant had suffered some ill health, particularly in the recent past, there was no suggestion that any of his conditions were so chronic or debilitating that he could not function, nor were they life-threatening.

38 Her Honour noted that on 17 February 2003, at the commencement of the trial, the applicant had attended the Royal Perth Hospital emergency department and had been diagnosed as suffering from anxiety, but not of a nature that required emergency psychiatric intervention. However, it had been recommended that the diagnosis of anxiety be followed up with appropriate mental health care.

39 Her Honour summed up her findings in respect of the applicant's health problems as follows:

"Despite a number of what I have described as chronic physical problems which are not uncommon in a man of your age, the conclusion is that none of the conditions from which you suffer are life-threatening or likely to result in a rapid decline in your physical wellbeing.

From a psychiatric perspective, the conclusion is that your condition does not appear to be relevant either to your offending or sentencing in the sense that it is considered that your psychiatric condition, if it can be described as such, being as I understand it a reference to depression, can be treated within the community or within the prison system."

40 In my opinion, the learned sentencing Judge gave significant and appropriate consideration to the applicant's ill health and psychiatric condition. In light of the findings of the medical reports and the psychiatric report to which her Honour referred, it was open to her Honour to find that the applicant's health and psychiatric condition were not such that a term of imprisonment would have a significantly greater effect upon him than upon someone in good health and without such condition. In my opinion, ground 4 has not been made out.

41 Counsel for the applicant contended that the sentence of 6 years with a non-parole period of 3 years was manifestly excessive. The particulars of the ground were that the Crown conceded two points: that the conviction related to one person only; and that the applicant carried on a legitimate travel business.

42 Reference was made to two prior decisions. The first was R v Ruppert; unreported; County Court of Victoria; 19 August 1998. The second was R v Lee (supra). The present case is the second case in which an offender has been sentenced under the relevant Commonwealth legislation.

43 In Ruppert, the offender pleaded guilty and was sentenced to imprisonment for 6 months, suspended on the basis that he had entered into a recognisance to be of good behaviour for 3 years with a $500 bond. The offender had engaged in correspondence with a number of persons who purported to be women in the Republic of Ghana. He wrote letters to the women suggesting, as the learned Judge said, "in explicit and vulgar terms", that they should train young female children to engage in sexual acts between themselves and with men and women. His Honour said in respect of the offences at 37:

"Once one accepts that the offence has been committed one is obliged I think to consider that the accused contemplated and intended the most horrible perversion of the young. One is obliged ... to consider also that the likelihood of that perversion being effected was low."

"Despite the prisoner's denials [and] a report from Dr Watson and from his general practitioner, the contents of the letters persuade me that the prisoner's central purpose was one of sexual self-gratification by writing them, and this is not the crime for which he is to be sentenced."

45 In R v Lee (supra), the applicant applied for leave to appeal against an effective total sentence of 14 years' imprisonment with a non-parole term of 6 years imposed by the District Court for a number of offences under the Crimes Act and the Censorship Act 1996 (WA) ("Censorship Act"). The offences included one count of engaging in sexual intercourse with a child under 16 years outside Australia and eight counts of committing acts of indecency against a person under 16 years outside Australia contrary to ss 50BA and 50BC of the Crimes Act, 14 counts of possession of child pornography and one count of displaying child pornography contrary to the Censorship Act. Kennedy, Wallwork and Murray JJ, allowing the appeal, found that the sentence of 8 years for the count of sexual intercourse with a child outside Australia was excessive in all the circumstances, given that the applicant had had no prior convictions and that there was no evidence of brutality other than the act itself. In the result, their Honours varied the total effective sentence from 14 years to 11 years, with the minimum sentence being reduced from 6 years to 41/2 years. In his reasons, Kennedy J referred to the remarks made in the House of Representatives by the then Minister for Justice in his Second Reading Speech on 3 May 1994. His Honour related that the Minister had stated the principal aim of the new Pt IIIA of the Crimes Act, entitled "Child Sex Tourism", was "to provide a real and enforceable deterrent to the sexual abuse of children outside Australia by Australian citizens and residents". The Minister also said:

"...The Bill also focuses on the activities of those who promote, organise and profit from child sex tourism ... The Bill should send a clear message to child sexual abusers and those who profit from their activities that the government and the community condemn their behaviour and do not intend to tolerate it."

46 In this case it was contended that, in the light of the concession by the Crown in right of the Commonwealth that the applicant was to be sentenced for one offence only, and that the matter did not proceed beyond the planning stage, the sentence was manifestly excessive. It was accepted, however, that the acts which constituted the elements of the offence had all been made out.

47 It was no part of the Crown case that the offence was representative, in the sense that the applicant was engaged in the business of arranging sex tours or that he profited from the commission of the offence.

48 It was submitted by counsel for the applicant that the case was an appropriate one for considering the imposition of a recognisance release order, which, under s 19AC of the Crimes Act could be effected by the imposition, first, of a sentence of 3 years or less and, subsequently, a recognisance release order. Counsel submitted that similar principles should be applied as were applied by the High Court in Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321. Alternatively it was submitted that a lesser non-parole period should have been imposed. The High Court in Dinsdale was concerned with the interpretation of certain provisions of the Sentencing Act 1995 (WA). In the present context, the decision in Dinsdale is relevant only in the context that the Court of Criminal Appeal must identify an error of fact, law, or sentencing principle in the application and interpretation of the relevant provisions in the sentencing legislation which is applicable which, in this case, is the Crimes Act.

49 Under s 16A(1) of the Crimes Act, a sentencing Court must impose a sentence of a severity appropriate to all the circumstances of the offence. General deterrence remains an important factor in the sentencing process: R v El Karhani (supra). The minimum non-parole period required to be fixed under s 19AB of the Crimes Act need not conform to any particular proportion of the head sentence: R v Bernier (1998) 102 A Crim R 44, however the usual range is from 60 to 66⅔ per cent: R v Sweet [2001] NSWCCA 445; (2001) 125 A Crim R 341 per Spigelman CJ (with whom Studdert J and Ireland AJ agreed). In the present case the non-parole period, fixed at 3 years or 50 per cent of the head sentence, is, if anything, somewhat below the norm.

50 Counsel for the applicant argued that Parliament had intended that the legislation in question was aimed at those who promote, organise and profit from child sex tourism. In the present case the evidence indicated that the applicant was not to profit from the particular transaction in question. Some 3000 telephone calls made by the applicant had been intercepted during the course of the police investigation, and only a single call was found to be concerned with the offence in question. Evidence was tendered to support the applicant's contention that the offence lacked any significant element of commerciality. This comprised a letter from the applicant to Mr Adair dated 8 December 2000, a receipt dated 27 December 2000 for the sum of $350, being the balance of rent for an apartment at Pataya, Thailand, and a document purported to be a quotation dated 5 February 2001 regarding rent for a deluxe apartment with kitchen. That document took the form of a memo to a Philip Ambroise, a resident in Thailand who acted as a type of agent for the applicant.

51 Counsel for the applicant submitted that the fact that the learned sentencing Judge did not at any time refer to the lack of commerciality in the transaction was significant in the context of determining whether the sentence was manifestly excessive.

52 Counsel for the Crown contended that, notwithstanding that no evidence was adduced that any element of the sum of money paid to the applicant by Mr Adair particularly related to the provision of children for sex, nonetheless the offence did involve an element of commerciality, in that the service being offered was a commercial travel service for which money was paid, and that the service provided additional illegal activities, if the person procuring the service chose to engage in them.

53 Counsel for the applicant conceded that the offence the subject of the present case involved a greater degree of organisation than that in Ruppert, and that the fact that the applicant operated a legitimate tourist business and owned property in Thailand put the offence "into a higher realm".

54 While the offence fell at the lower end of the spectrum of seriousness contemplated by the legislation, I consider that a sentence of 6 years with a non-parole period of 3 years fell well within the discretion of the sentencing Judge. Ruppert differs significantly from the present case in that in Ruppert the offender pleaded guilty, and, as the learned sentencing Judge said in that case, "The likelihood of the perversion being effected was low". In the present case, although the applicant did not profit from the offence, his status as the operator of a travel business providing accommodation and contacts in Thailand to persons interested meant that the likelihood of acts of indecency against children under 16 being committed as a result of his efforts was increased. That, taken in conjunction with the applicant's lack of remorse, indicates that this offence was more serious than that in Ruppert.

55 In my opinion, a sentence of 6 years' imprisonment with a minimum non-parole period of 3 years was well within the discretion of the learned sentencing Judge and was not manifestly excessive.

56 It follows that I would refuse the application for leave to appeal.

57 MURRAY J: I agree with Malcolm CJ and McLure J that leave to appeal should be refused. In my opinion, it has not been demonstrated that the exercise of sentencing discretion miscarried.

58 It was not shown that Deane DCJ failed to properly consider the applicant's personal circumstances. There was insufficient evidence of ill health to require her Honour to moderate the sentence on this ground. Finally, in my opinion, it was not shown that the sentence, although firm, in my view, was so firm as to be regarded as manifestly excessive.

59 MCLURE J: I have had the advantage of reading in draft the reasons published by the Chief Justice. I agree that leave to appeal should be refused generally for the reasons he gives. The background and relevant facts are set out in the Chief Justice's reasons and I do not repeat them here. The applicant was convicted after trial of one count of doing an act with the intention of encouraging conduct of a kind that would constitute an offence against the child sex tourism provisions in Pt IIIA of the Crimes Act 1914 (Cth).

60 In summary, the applicant contends that the sentence of 6 years with a non-parole period of 3 years was manifestly excessive and that the sentencing Judge failed to give any, or any sufficient, weight to his antecedents (age, lack of prior record and contribution to the community) and ill-health.

61 An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different from the sentencing Judge: Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665. However, it is entitled to intervene if a material error of fact or law is discerned in the sentencing Judge's reasons. Alternatively, error may be inferred if the result is unreasonable or unjust, in other words, "manifestly excessive".

62 The sentencing Judge gave careful and comprehensive reasons for the sentence she imposed. It is not contended she made any factual error. There is no proper basis for contending that she failed to take into account the specific matters referred to in the grounds of appeal. They are expressly addressed. Further, there is no case for appellate intervention on the ground that insufficient weight was given to those matters within the meaning of the authorities discussed by Gibbs CJ in Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605 at 614. In particular, an appellate tribunal should not set aside an order made in the exercise of a judicial discretion unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the Court: Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513 at 519 per Latham CJ.

63 However, it is appropriate to have regard to these matters as, in effect, additional particulars of the claim that the sentence is manifestly excessive: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 330 per Gaudron and Gummow JJ.

64 The applicant contends that the sentence is manifestly excessive because a non-custodial sentence ought to have been imposed. Alternatively, the sentence (or non-parole period) was manifestly too long.

65 The applicant's antecedents are to his credit. He had no relevant prior convictions and had made significant contributions as a father and member of the community. They are detailed in the sentencing Judge's reasons. The weight to be given to the applicant's age is not to be considered in isolation. What is "old age" can change over time as the average lifespan increases and may vary according to the particular circumstances of the offender, including his or her mental and physical health and lifestyle. It is relevant to note in this context that at the time the applicant committed the offence he was in his late sixties, was running a travel business and was himself travelling overseas from time to time. He was not suffering from any physical or mental health problems that reduced the level of his culpability or otherwise reduced the weight to be given to considerations of personal and general deterrence. To the contrary, the applicant refused to accept responsibility for his offending and showed no remorse.

66 General deterrence is a weighty factor when dealing with offences relating to sexual conduct with children: Bell v The Queen [2001] WASCA 40. Thus, the penalty should reflect the need for general deterrence, reinforced by the practical difficulties of detection because the acts of child molestation occur overseas.

67 On the question of the applicant's health, the sentencing Judge found that none of the physical conditions from which he suffered were life-threatening or likely to result in a rapid decline in his physical well-being during his period of incarceration and his depression could be treated within the prison system.

68 The offence of which the applicant was convicted is a serious one, as reflected in the maximum penalty of 17 years. The maximum penalty for encouraging an offence under Pt IIIA of the Crimes Act is the same as the maximum penalty for having sexual intercourse with a child under 16 outside Australia. The circumstances of the offence are serious in that significant planning and effort by the applicant was involved. Although it is usually relevant to have regard to the standards of sentencing customarily observed with respect to the crime (R v Chan (1989) 38 A Crim R 337 at 342), there is very little authority directly on point.

69 Having regard to the serious nature and circumstances of the offence and the weight to be given to deterrence considerations, I am satisfied that the sentencing Judge did not err in the exercise of her discretion in imposing a custodial sentence or in the length of the term imposed or the non-parole period.

70 The applicant was sentenced under the regime applying before the commencement of the Sentencing Legislation Amendment and Repeal Act 2003 (WA). However, as I propose to dismiss the application, it is unnecessary to address the question whether the transitional provisions in Sch 1, item 2 of that Act apply.

Legislation Amendment and Repeal Act 2003

Kaye v The Queen [2004] WASCA 227

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (118 paragraphs)

Kaye v The Queen [2004] WASCA 227 (8 October 2004)

Parties

Legislation Cited (1)

Cases Cited (9)