PANOMARENKO -v- THE STATE OF WESTERN AUSTRALIA [2022] WASCA 71 (23 June 2022)

5 The last date for appealing against sentence was 14 May 2021. The appellant did not file his appeal notice until 23 September 2021. The appellant's application for an extension of time within which to appeal is supported by an affidavit of a solicitor, Vesna Amidzic, sworn 20 September 2021.

7 Ground 1 alleges that the sentencing judge erred when she found beyond reasonable doubt that the appellant's conduct in recording the offending by video was done for the purposes of sexual gratification.

8 Ground 2 alleges that the sentence of 2 years 6 months' immediate imprisonment was manifestly excessive as to type.

9 We are satisfied that neither of the grounds of appeal has a reasonable prospect of success. In the circumstances, it would be pointless to grant an extension of time within which to appeal. The application for an extension of time should be dismissed. Leave to appeal should be refused and the appeal must be dismissed.

10 At the time of the offending (that is, between 1 January 2017 and 31 December 2017) the appellant was aged about 42 and the complainant was aged about 50.

11 In about April 2014, the appellant and the complainant met through an online dating application. They met with each other on a casual basis for about 2 years. In about October 2016, their relationship became more serious. The complainant began staying regularly at the appellant's home. She moved some of her clothing and other belongings into his house. The appellant and the complainant had a varied sex life which included role playing, costume wearing and experimenting with dominant and submissive roles.

12 In about September 2017, the complainant was in bed asleep in the master bedroom of the appellant's home. The appellant lay on the bed next to the complainant and began masturbating. The appellant, while masturbating, positioned his penis near the complainant's head. He then pulled her head towards his penis and inserted his penis into her mouth.

13 The complainant awoke. She was startled, disorientated and confused. The appellant comforted the complainant and she fell asleep again. He continued masturbating and ejaculated over her back.

14 The appellant video recorded, without the complainant's knowledge and consent, the incident in which he masturbated and inserted his penis in the complainant's mouth.

15 During their relationship the complainant became increasingly suspicious about the appellant. She examined the contents of some of his computer hard drives and discovered 41 recordings which captured sexual activity between them. The complainant had not known that the recordings had been made. The recordings included the recording of the offending in question. The appellant labelled the file with the relevant recording '2sh cm in m.mp4'. At the sentencing hearing the prosecutor asserted and defence counsel accepted that 'cm in m' in the appellant's description of the file with the recording denoted 'cum in mouth'. See the prosecutor's outline of submissions dated 24 February 2021 at [5], [9] and defence counsel's outline of sentencing submissions dated 23 February 2021 at [5].

16 On 21 August 2018, the appellant was arrested. He declined to participate in a video recorded interview with police.

The sentencing judge's sentencing remarks and the expert reports

17 The sentencing judge recounted in her sentencing remarks the facts and circumstances of the offending.

18 Her Honour said that she had viewed the video recording of the incident involving the offending. Her Honour noted that the duration of the recording was about 13 minutes.

19 Her Honour said that the complainant was clearly vulnerable. She had consumed drugs earlier in the evening and was asleep. The complainant was unable adequately to protect herself or to prevent the commission of the offending.

20 The sentencing judge observed that the appellant had demonstrated a complete disregard for the complainant and the sanctity of her body.

21 Her Honour was satisfied, based on her viewing of the video recording, that, although the complainant was asleep, 'she had already pushed [the appellant] away from her' (ts 186). Her Honour found that the complainant had indicated to the appellant that she was not agreeable at that time to any sexual activity. Consequently, her Honour rejected a submission made on behalf of the appellant that the appellant had honestly believed at the time that the complainant had consented to the sexual activity. Her Honour said that the complainant was 'clearly fast asleep when [the appellant] suddenly, without warning, shoved [his] penis into her mouth' (ts 186). Her Honour added that it was clear from the video recording that the complainant then awoke 'startled' (ts 186).

22 The sentencing judge made the following findings:

(a) The seriousness of the appellant's offending was aggravated by his conduct in video recording his actions without the complainant's knowledge and consent. Those actions were inherently demeaning and degrading. The fact that the appellant did not disseminate the video recording did not mitigate the fact that he made the video recording without the complainant's knowledge and consent.

(b) The complainant's victim impact statement indicated that she felt humiliated and embarrassed in having to give the video recording to police when she discovered its existence.

(c) Her Honour was satisfied beyond reasonable doubt that the appellant's purpose in putting his penis into the complainant's mouth was to ejaculate into her mouth.

(d) Her Honour was satisfied beyond reasonable doubt that the appellant video recorded the offending for his own sexual gratification.

23 Her Honour observed that the complainant was entitled to feel safe with the appellant. She was at the appellant's home and in his bed 'and, to that extent, [the] offending involved a significant breach of trust' (ts 186 ‑ 187).

24 The sentencing judge said that it was apparent from the victim impact statement that the offending (in particular, the video recording of the incident) had resulted in serious emotional and psychological consequences for the complainant.

25 Her Honour referred in detail to the appellant's personal circumstances and antecedents. Her Honour noted, in essence:

(a) The appellant has had little contact with his biological father (his parents had separated soon after his birth). However, he has had a closer relationship with his step-father.

(b) The appellant left school during or at the end of year 11. He completed an electrical apprenticeship and had been gainfully employed.

(c) The appellant was married but the marriage ended in August 2013.

(d) Since about 2005 the appellant has been involved in running businesses. At the time of the offending and when sentenced he was operating a business involving the design and manufacture of electrical switch boards. He also performed sheet metal and fabrication work for industrial and domestic use.

(e) Since June 2018 the appellant has been in a relationship. The appellant and his partner had been living together for about 2 years before the appellant was sentenced. The partner remained supportive of the appellant.

(f) The appellant has a history of illicit drug use; in particular, cannabis and methylamphetamine. He has also used other illicit drugs occasionally.

(g) The appellant has had problems with obesity, low confidence and poor self-esteem.

26 The information before the sentencing judge included a psychological report dated 24 November 2020 from Ms Tanina Oliveri, a clinical and forensic psychologist. There was also a report dated 22 February 2021 from Mr John McGrogan, a clinical psychologist registrar, and a pre‑sentence report dated 7 December 2020. Further, there were numerous written references as to the appellant's character from people who spoke well of him.

27 The appellant informed Ms Oliveri that he accepted that his actions in relation to the complainant were wrong and illegal. Ms Oliveri was of the view that the appellant displayed an adequate understanding of the likely impact of his offending on the complainant. Ms Oliveri thought that the appellant had a below average risk for future sexual offending. He had issues relating to substance abuse, emotional regulation and depression and he had poor coping skills when under stress.

(a) The appellant told Ms Oliveri that, while seeing the complainant and using methylamphetamine, his sex drive increased, especially after he lost weight. The appellant admitted that at the time he was often using pornography, he was sexually preoccupied and interested, and he was seeking sexual behaviour [6].

(b) The appellant explained to Ms Oliveri that he and the complainant often used methylamphetamine. This increased his sexual interest, drive and arousal. He felt more confident in his appearance because he had lost a significant amount of weight. The appellant said that he and the complainant engaged in varied sexual acts and he often played a dominant sexual role while she was in a consenting submissive sexual role. The appellant admitted that he had shown poor judgment in relation to the offending and a lack of consideration for the complainant. He admitted that he was focused on sexual gratification [13].

29 The appellant informed the author of the pre‑sentence report that, prior to the offending, the appellant and the complainant had been on a four day 'sex and drug binge' and he had been using Viagra to maintain erections.

30 The sentencing judge discounted the head sentence she would otherwise have imposed by 20%, pursuant to s 9AA of the Sentencing Act 1995 (WA), in recognition of the appellant's plea of guilty.

31 Her Honour noted that the appellant had a very minor criminal record. He had not committed any offences since 2001. Her Honour said that the offending in question was 'out of character' for the appellant (ts 193).

32 The sentencing judge accepted that the appellant had expressed remorse for his offending (ts 194).

33 Her Honour said that the appellant had a good work history, a strong work ethic and an ongoing relationship with a 'very prosocial partner' who would provide the appellant with 'good support' (ts 194). Her Honour also said that it was to the appellant's credit that he had commenced psychological counselling.

34 The sentencing judge was satisfied that the only appropriate sentence was a term of imprisonment. Her Honour was positively satisfied that it was inappropriate to suspend or conditionally suspend the term of imprisonment because suspension or conditional suspension would not properly reflect the serious nature of the offending and the importance of general deterrence. There was nothing about the objective circumstances of the offending or the appellant's personal circumstances which would justify suspension or conditional suspension.

The appellant's submissions on the grounds of appeal

35 As we have mentioned, ground 1 alleges that the sentencing judge erred when she found beyond reasonable doubt that the appellant's conduct in recording the offending by video was done for the purposes of sexual gratification.

36 Counsel for the appellant accepted that the appellant committed the act of penetration for sexual gratification. However, she contended that there was no element of sexual gratification in the appellant's act of video recording his offending. It was submitted that there was no evidence before her Honour from which it could be inferred beyond reasonable doubt that the appellant made the video recording for the purposes of sexual gratification.

37 According to counsel, an alternative reasonable inference open on the evidence was that the appellant video recorded his offending as part of his therapy following his bariatric surgery in 2013. A similar submission was made by defence counsel to the sentencing judge at [44] of defence counsel's outline of written submissions, as follows:

In dealing with issues that surfaced or became more pronounced after the [bariatric] surgery, the [appellant performed] ... exercises to assist in integrating the [appellant's] 'new body' with his sense of self such as regarding himself in the mirror on a daily basis, visually recording himself in motion and in physical activity, taking photos of himself - the very behaviours the [appellant] had actively and instinctively avoided throughout his life as a morbidly obese man.

38 Counsel argued that the making of the video recording must be viewed in the context of the relationship that then subsisted between the appellant and the complainant, namely 'a consenting sexual adult and experimental relationship not marred by [any] pre-existing sexual deviancies on the part of the appellant (or self-evident from the conduct itself)'.

39 According to counsel, when viewed in that context, the act of video recording was 'no more than something that was done in poor taste and judgment'.

40 Counsel emphasised that the appellant did not disseminate the video recording to others and that there was no evidence before her Honour that the appellant had accessed the recording after it was created and before it was discovered (a period of several months).

41 It was argued that the absence of dissemination and the absence of any evidence of subsequent access demonstrated that 'the motive behind the recording was not one grounded in sexual deviancy on the part of the appellant'.

42 It was submitted that the sentencing judge's error, as alleged in ground 1, was material to the sentencing outcome because the impugned finding 'appears to have compounded the sentencing judge's thinking about the true extent of sexual deviancy requiring condign punishment'.

43 As we have mentioned, ground 2 alleged that the sentence of 2 years 6 months' immediate imprisonment was manifestly excessive as to type.

44 Counsel for the appellant confirmed in her oral submissions that no complaint was made about the length of the term of imprisonment.

45 Counsel referred to a number of previous cases including The State of Western Australia v Syred;[1] KNY v The State of Western Australia;[2] Alizada v The State of Western Australia;[3] The State of Western Australia v Jacoby;[4] McNally v The State of Western Australia;[5] Lakay v The State of Western Australia;[6] Kabambi v The State of Western Australia;[7] Alalyani v The State of Western Australia;[8] The State of Western Australia v Vartolo;[9] Mearns v The State of Western Australia.[10]

46 It was submitted that, in the present case, nothing about the objective features of the offending conduct outweighed personal considerations such as rehabilitation. According to counsel, the objective features of the case, when viewed together with the appellant's personal circumstances and antecedents, militated in favour of conditional suspension.

(a) as soon as the complainant responded to the act of penetration, the appellant ceased penetration;

(b) apart from that act of penetration, the appellant did not do anything else to the complainant that was demeaning or degrading;

(c) all of the offending conduct occurred in the context of a consensual, active and experimental sexual relationship;

(d) the appellant did not demonstrate to the psychologists an attitude towards women that might warrant the need for personal deterrence; and

(e) the offending occurred in circumstances 'very unique to this particular offender', namely in the context of 'his own grappling with his body image issues' and, consequently, the appellant was not a suitable vehicle for general deterrence.

48 It was submitted that the appellant was a man 'of otherwise good character, who demonstrates no form of problematic attitudes, has then clearly over-stepped the boundaries of the sexual relationship that he was in and has immediately ceased his conduct when the victim responded adversely'. According to counsel, those factors 'must lead to a conclusion that suspending [the] term of imprisonment with conditions was in fact open to [her Honour]'.

49 As to ground 1, we are satisfied that the sentencing judge was entitled to find beyond reasonable doubt that the appellant's conduct in recording the offending by video was done for purposes which included, at least, the dominant purpose of sexual gratification.

50 It was open to her Honour to infer beyond reasonable doubt, having regard to the combined force of the following facts and circumstances, that the appellant video recorded the offending for, at least, the dominant purpose of sexual gratification:

(a) The appellant told Ms Oliveri that at the time of the offending he often used pornography, he was sexually preoccupied and interested, and he was seeking sexual behaviour.

(b) The appellant admitted to Ms Oliveri that when he committed the offence he was focused on sexual gratification.

(c) The appellant informed the author of the pre‑sentence report that, prior to the offending, the appellant and the complainant had been on a four day 'sex and drug binge' and he had been using Viagra to maintain erections.

(d) The appellant set up the video camera before the incident involving the offending began. The appellant did not inform the complainant that he was videoing the incident or seek her consent to the videoing.

(e) The appellant retained the video recording. The appellant did not inform the complainant that he had retained the video recording or seek her consent to its retention.

(f) The appellant's description of the file with the recording included an abbreviated annotation for 'cum in mouth'.

(g) The substantial interval between the appellant undergoing bariatric surgery in 2013 and the appellant committing the offence in 2017.

(h) It is the experience of the courts, in cases involving sex offences, that offenders who covertly make video recordings of their offending and retain the recordings ordinarily, as a matter of fact, do so for, at least, the dominant purpose of sexual gratification, including deriving sexual pleasure from the complainant's absence of knowledge that he or she is being video recorded and from the opportunity later to relive the experience.

51 The combined force of the facts and circumstances set out at [50] above established a strong nexus between the appellant's obsession at the time with sexual gratification, on the one hand, and the appellant's action in covertly video recording the offending, on the other.

52 In our opinion, the sentencing judge was entitled to make the impugned finding beyond reasonable doubt, even though there was no evidence that the appellant had subsequently viewed the video recording.

53 In any event, even if her Honour's finding was attended by error, we are satisfied that, in all the circumstances, it is not reasonably arguable that the error was capable of affecting the actual sentence imposed by her Honour. The alleged error was not 'material' in the relevant sense. In any event, it is not reasonably arguable that a different sentence should have been imposed.

54 Ground 1 does not have a reasonable prospect of success.

55 As to ground 2, the maximum sentence for the appellant's offence against s 326(1) of the Code is 20 years' imprisonment.

56 It is well established that there is no tariff for sexual offences because of the great variation in the facts and circumstances of the offences and in the personal circumstances of the offenders. Comparable cases may only provide very limited guidance. Often there will be significant differences in the facts and circumstances of the offending and in the personal circumstances of the offenders.

57 A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles set out in div 1 of pt 2 of the Sentencing Act, that it is not appropriate to impose suspended or conditionally suspended imprisonment. See s 39(2) and s 39(3).

58 A sentencing judge must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately. In a borderline case, it may reasonably be open to impose different types of sentences. See Fogg v The State of Western Australia.[11] The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation and mercy. See Dinsdale v The Queen.[12] The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. See Dinsdale [86].

59 The imposition of a suspended or conditionally suspended term of imprisonment for a serious sex offence against s 326(1) of the Code is, as a matter of fact, exceptional. The present case, having regard to all relevant facts and circumstances and all relevant sentencing principles, is not within the exceptional category.

60 In our opinion, the sentence of 2 years 6 months' immediate imprisonment imposed on the appellant is broadly consistent with previous sentencing decisions for offending against s 326(1) of the Code (having regard to the similarities and differences between the offenders and the offending), including those decisions cited by counsel for the appellant.

61 After evaluating the sentence for the appellant's offending, in the context of the maximum penalty, the facts and circumstances of the offending, the standards of sentencing customarily observed, the place which the appellant's offending occupies on the relevant scale of seriousness, the appellant's personal circumstances and antecedents and all aggravating and mitigating factors, we are satisfied that it was reasonably open for the sentencing judge to conclude that it was inappropriate to suspend or conditionally suspend (wholly or partly) the sentence of imprisonment. Her Honour was entitled to be positively satisfied that it was not appropriate to suspend or conditionally suspend (wholly or partly) the term of imprisonment. The type of individual sentence imposed on the appellant was not unreasonable or plainly unjust. It is not reasonably arguable that the existence of error should be inferred from the sentencing outcome.

62 Ground 2 does not have a reasonable prospect of success.

63 For these reasons, neither ground 1 nor ground 2 has a reasonable prospect of success. The application for an extension of time within which to appeal should be dismissed. Leave to appeal should be refused and the appeal must be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] The State of Western Australia v Syred [2020] WASCA 185.

[2] KNY v The State of Western Australia [2019] WASCA 89.

[3] Alizada v The State of Western Australia [2021] WASCA 18.

[4] The State of Western Australia v Jacoby [2020] WASCA 150.

[5] McNally v The State of Western Australia [2019] WASCA 93.

[6] Lakay v The State of Western Australia [2019] WASCA 46.

[7] Kabambi v The State of Western Australia [2019] WASCA 44.

[8] Alalyani v The State of Western Australia [2018] WASCA 44.

[9] The State of Western Australia v Vartolo [2015] WASCA 53.

[10] Mearns v The State of Western Australia [2009] WASCA 153.

[11] Fogg v The State of Western Australia [2011] WASCA 11 [9].

[12] Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18], [26], [84].