R v Wicks

Crimes Act 1914 (Cth) Crimes Act 1900 (NSW) LEGISLATION CITED: Criminal Law Consolidation Act 1935 Criminal Code 1913

Bell v R [2001] WASCA 40 Kaye v R [2004] WASCA 227 R v AB & Clifford [2005] NSWCCA 360 R v AJW (2001) 80 SASR 246 R v Baker [2000] NSWCCA 85 R v Bilal Skaf [2005] NSWCCA 297 R v D (1997) 69 SASR 413 R v Dunn [2004] NSWCCA 41 CASES CITED: R v H [2001] NSWCCA 117 R v Levi (1997) unreported, NSWCCA, 15 May 1997 R v LLK (2003) 146 A Crim R 1 R v MD, BM, NA, JT [2005] NSWCCA 342 R v Pearson [2005] NSWCCA 116 R v Percival [2001] NSWCCA 429 R v Weldon (2002) 136 A Crim R 55 at 62 Weininger v The Queen (2003) 212 CLR 629

The Crown (Appl) PARTIES: Leon Wicks (Resp)

W J Abraham QC (Appl Crown) COUNSEL: W Flynn (Resp)

Commonwealth Director of Public Prosecutions (Appl Crown) SOLICITORS: Marsdens Law Group (Resp)

IN THE COURT OF CRIMINAL APPEAL 2005/1208

McCLELLAN CJ at CL ADAMS J HOEBEN J

FRIDAY 25 NOVEMBER 2005 REGINA v Leon WICKS Judgment 1 McCLELLAN CJ at CL: The Crown appeals the sentence imposed on the respondent for six offences. The offences were four counts of sexual intercourse with persons under sixteen years outside Australia contrary to s 50BA(1) of the Crimes Act 1914 (Cth), one count of inducing a person under sixteen to committee an act of indecency outside Australia contrary to s 50BD(1) of the Crimes Act 1914 (Cth); and one count of inducing a person under the age of sixteen years to have sexual intercourse with another person outside Australia contrary to s 50BB(1) of the Crimes Act 1914 (Cth). 2 The offences occurred between 17 February and 5 March 2003 in Thailand. 3 The maximum penalty for an offence contrary to s 50BA or s 50BB is seventeen years imprisonment. The maximum penalty for an offence contrary to s 50BD is twelve years imprisonment. 4 The respondent pleaded guilty. He was detected following a multi national police initiative aimed at the detection of persons involved in the distribution and possession of child pornography, primarily accessed through the internet. 5 The respondent was identified as having accessed and downloaded child pornography from global internet sites and as having visited a known internet site connected with the promotion of child sex tourism. 6 On 25 September 2004 a search warrant was executed on the respondent's residential premises at Cobar. During the search police seized a number of computer hard drives and related computer equipment which were subsequently examined and found to contain a large number of images of child pornography. The police also located video cassette material and literature identified as being child pornography. Included were some video cassettes portraying sexual relations between persons under the age of sixteen years. Some travel documents seized showed travel by the respondent to Thailand. The material included a hand written note of Thai language translation of phrases with sexual implications. The inference was that the respondent had obtained this material so that he could communicate his intentions to his victims in the Thai language. 7 Following the search the respondent was taken to the Cobar Police Station where he made a number of admissions in relation to his sexual activities with male persons while he was holidaying in Thailand in February 2003. 8 He admitted to engaging the services of persons who he described as boys from bars and prostitution related venues in Bangkok and Pataya. He admitted to paying boys to engage in various sexual activities with him and inducing the boys to engage in sexual activities with one another. He video recorded the activity. At some points in the interview he denied that the persons with whom he engaged in sexual intercourse and related acts were under the age of sixteen years, stating that he did not turn his mind to the ages of the boys. However, at other times he agreed that the boys may have been under the age of sixteen years. 9 Expert evidence was tendered before the sentencing judge from a paediatric endocrinologist from the Sydney Children's Hospital. He gave evidence of the apparent age of the boys having regard to the material on the video cassette tapes. The ages varied from between twelve and fifteen years. There is other evidence that the respondent knew that at least two of the boys were aged about twelve and thirteen years. 10 The respondent had a previous conviction for indecent assault in 1984 for which he was dealt with by a bond. 11 The respondent who is forty three years of age and single, was born and raised in the Yass area. He is the youngest of five children and completed schooling until grade 10. After leaving school he worked as a furniture salesman in Yass for eight years, then as a car salesman and as a spare parts manager, before going into business with a colleague. However the business failed. He was then employed with the State Emergency Service from 1992 and at the time of sentence had worked his way to Divisional Controller for the Far West. He has also worked at a tertiary college and been involved in many community activities. 12 The sentencing judge received a number of favourable references attesting to the trustworthy, reliable, generous and community minded spirit which the respondent had previously demonstrated. He was considered by some to be a good family friend. The Probation and Parole Service report concluded that the respondent was an intelligent and forthright person who has always enjoyed a supportive relationship with his extended family. The report identified that sex offender treatment would provide an educative and preventative role in assisting him to avoid offending in the future. 13 Notwithstanding this favourable report the sentencing judge had a report from a psychologist which was, in his Honour's words, "a bit ambivalent about the offender's risk factor. On the one hand he suggest a moderate to high category of risk, then in another section suggests, a low risk of re-offending. Of course this is before any sex offender treatment." 14 The respondent admitted to the psychologist that he went to Thailand because he heard of boy bars and "I went for the type of sex with young boys, not children, to let my hair down for 10 days." The respondent apparently claimed that the youngest of the victims offered themselves to him and that all were willing participants. While he admitted to the psychologist that he was aware of the illegality of his actions he also said that he saw his sexual activity with the victims as a financial transaction as he said "they sold it, I bought it." 15 The psychological report confirmed that the respondent had a limited understanding of victims' issues. He had not actually considered the potential harm that could accrue to the children from sexual relationships with adults. However, the psychologist reports that with his limited sexual offending history, his ostensibly pro social law abiding life, an apparent robust capacity for self-regulation and self-protection means that he represents a good prospect for offence, specific treatment and community integration. 16 The sentencing judge identified and considered the matters which s 16A of the Act required when imposing sentence. His Honour firstly considered that the sentence must be of sufficient severity to meet the circumstances of the particular case. In this respect his Honour identified that the offences were against vulnerable young children made even more vulnerable because of the exigencies of the society in which they live. His Honour recognised that here was a need world wide to develop effective and independent machinery to ensure that abusers of children's rights are identified and that tangible measures are taken to remedy those abuses. 17 His Honour identified that the offences were committed as part of a course of conduct consisting of criminal acts. The respondent went to Thailand for the express purpose of engaging in sexual activity with young persons who would be in premises described as "boy bars." Without evidence as to the personal circumstances of the victims his Honour said that their injury or loss "can only be surmised from the nature of the offences." 18 His Honour accepted that the respondent had expressed remorse and had made admissions and pleaded guilty at the first opportunity. However, his Honour noted that the psychologist concluded that the respondent "appears to have had a limited understanding of victims issues." His Honour also considered matters of deterrence both personal and general noting the remarks of the Minister for Justice in the Second Reading Speech of the relevant legislation in 1994. 19 His Honour concluded that the offences are "very serious" and must be visited with a heavy penalty. A term of imprisonment was necessary. Noting the maximum sentence provided for the offences was seventeen years and twelve years respectively he concluded that "it was the role of the Court to find a balance within the allowable range depending on the seriousness of the offence within the section, and the personal circumstances of the offender." 20 His Honour noted the sentences which had been imposed in similar cases and identified that they ranged from 3 to 7 years. He concluded that the upper level of sentences have been imposed upon persons with prior convictions for similar offences where "the offender had not learned and had already incurred some years in imprisonment." 21 In other cases a higher penalty had been imposed where the offender had a history of other offences including violence, or where the offender was in a position of trust, in a church organisation overseas. 22 In the present case his Honour identified that the respondent had failed to have any regard to the effect upon the young persons with whom he had sexual relations. However, his Honour also noted that the respondent had "no real history of offending in this way apart from a minor case many years ago, and in the meantime he has been a well regarded member of the community, with a heavy commitment to social and community affairs and has many people prepared to speak up for him." 23 Having regard to all of these matters his Honour concluded that it was appropriate to consider a term of imprisonment at the lower end of the scale with some allowance for a parole period to ensure that he receives the appropriate counselling and guidance when he returns to the community. His Honour noted that the respondent would have lost his job and position in society. He has been exposed and now has convictions recorded against him. His Honour emphasised that these consequences would have a significant personal deterrent effect and would be likely to deter others. For this reason his Honour concluded that having regard to the respondent's background and community involvement "any lengthy term of imprisonment may not be necessary." 24 In these circumstances his Honour imposed a term of imprisonment of five years for the s 50BA and s 50BB offences and a term of imprisonment of three years for the s 50BD offence. His Honour did not consider any accumulation to be appropriate but determined that a parole period would be appropriate and, accordingly, set a non-parole period of three years, that period expiring on 7 June 2008. 25 The Crown appeals the sentences imposed and submits that his Honour failed:

1. To provide an adequate standard and level of punishment for this offence; 2. To adequately reflect the criminality of the respondent's conduct; 3. To adequately reflect the elements of deterrence; and 4. To adequately reflect the aggravating features of this offending. 26 In support of this submission the Crown points to the fact that the offences were pre-meditated. The respondent travelled to Thailand with the specific purpose of engaging in sexual intercourse with young boys. In support of this submission the Crown points to the fact that the respondent had in his possession hand written notes containing the Thai translations for various words/phrases of a sexual nature relating to persons under 16 years of age. The respondent also video taped his activities to create a permanent record of what he was doing for future sexual gratification. 27 The Crown also points to the fact that the charges relate to eleven victims and that seven other boys are also depicted in the videos participating in sexual acts. The Crown emphasises the time over which the offences occurred and the fact that money was paid to the victims. It is submitted that the respondent exploited the victims desire for money in a calculated fashion to meet his personal sexual predilection. It is submitted that the respondent showed a callous disregard for his victims. 28 The Crown submits that the paramount consideration in sentencing for offences of this type is deterrence. It is submitted that the penalty imposed must reflect the community's outrage and revulsion for such offending and the courts must do what they can to protect children. It is submitted that, consistent with the Minister's Second Reading Speech, the sentence imposed must: "… 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." Second Reading Speech 3 May 1994 Minister for Justice, Mr Kerr. 29 The Crown further submits that the sentencing judge not only failed to adequately reflect the elements of deterrence but placed undue weight on personal matters relating to the respondent. In particular it is submitted:

1. Although the respondent made admissions to the police and pleaded guilty at the first instance, he denied to the police knowledge that the boys were under 16 years of age. It is apparent from viewing the videos that the boys are under 16 years of age and on one video the respondent is heard to ask the victims their ages and they reply 12 and 13 respectively.

2. The respondent has no regard to the effect his conduct has on young persons. In that context there is no remorse or contrition.

3. The respondent had one prior conviction for an offence of indecency, albeit this occurred in 1984.

4. The respondent had in his possession a significant amount of child pornography. Although the respondent at the time of sentence had not pleaded guilty to those offences the Court was entitled to take into account that material as it was a fact relevant and known to his character and antecedents (see s 16A(2) of the Crimes Act 1914; Weininger v The Queen (2003) 212 CLR 629). 30 This Court has on many occasions taken care to emphasise the principles governing appeals by the Crown. In R v MD, BM, NA, JT [2005] NSWCCA 342 the Court said: "… it is important to note the principles which apply in relation to the determination of a Crown appeal against sentence:

(a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 449, applies to crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; with the result that this Court cannot merely substitute its opinion as to the appropriate sentence, for that of a sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error or latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; Wong & Leung v The Queen (2001) 76 ALJR 79 at para 58 and 109.

(b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere; R v Baker [2001] NSWCCA 85.

(c) A Crown appeal against sentence is concerned with establishing matters of principle "for the governance and guidance of courts having the duty of sentencing convicted persons" per Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen (2000) 202 CLR 32, at para 61 and 62, and Wong & Leung v The Queen at para 109.

(d) The Court has a lively discretion to refuse to intervene even if error has been shown and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, R v Papazis (1991) 51 A Crim R 242 at 247, and Wong & Leung v The Queen at para 110.

(e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less from that which should have been imposed by the sentencing court: R v Holder & Johnston (1983) 3 NSWLR 245 at 256, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen para 62." 31 Wood CJ at CL referred to R v Baker [2000] NSWCCA 85 where Spigelman CJ said:

"The authorities make it clear that Crown appeals should be rare. It may be that the present practice does not reflect that restriction, nevertheless, successful Crown appeals should be rare. This is particularly so with respect to that category of appeals in which no particular error can be identified and the sentencing process and the Crown must rely on an assertion of manifest inadequacy as a basis for a conclusion that some error of principle must have occurred." 32 In Dinsdale Gaudron and Gummow JJ said:

"In the circumstances of the present case, the question for the Court of Criminal Appeal was whether the result reached by the trial judge had been 'upon the facts ….unreasonable or plainly unjust [so that] the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law imposes in the court of first instance' was the sentence manifestly wrong" [18-20]

Consideration of the present case 33 In the present case the sentencing judge identified the relevant issues which required consideration when sentencing the respondent. Fundamentally he was required to balance the need for punishment and deterrence with the personal circumstances of the respondent and his potential for rehabilitation. He identified the fact that apart from any sentence imposed the detection and conviction of the respondent's offending conduct with his loss of position in society would have a significant deterrent effect, both on the respondent and on others contemplating similar criminal activity. His Honour identified that the personal history and circumstances of the respondent suggested that there were reasonable prospects of his rehabilitation which was supported, although not without reservations by the opinion of the psychologist. 34 As is often the case his Honour was faced with the situation where there were a number of factors which suggested a heavy sentence should be imposed but other matters which indicated an amelioration of that sentence. This not uncommonly presents a difficult task for sentencing judges and was commented upon in R v MD, BM, NA, JT in the following terms (at [63]-[64]): "Because the sentencing process requires consideration of a number of matters, some of which indicate a greater sentence whereas others reflect concerns which would ameliorate the sentence, the task of the sentencing judge can be complex and difficult. For this reason it is common for courts to accept that there will be a range of sentences appropriate for any particular circumstances within a particular offence category. Provided the sentence that is imposed is accepted as falling within that range, the discretion of the sentencing judge will not have miscarried. If, however, the sentence is such that, having regard to all relevant matters, it falls outside the range, an error will be identified and an appeal court may intervene.

However, the High Court has recently again emphasised the importance of due weight being given to the exercise of the discretion by the sentencing judge. It has acknowledged, as this Court must, that there is no single correct sentence and judges at first instance must be allowed "as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies": Makarian v The Queen (2005) 215 ALR 213 at [27]." 35 The sentencing of adults for offences involving the sexual exploitation of children is a difficult exercise. Because of the limited information available as to the sentencing for sexual acts committed outside Australia, sentencing in the present case was an even more difficult task. 36 The Court was provided by counsel with an understanding of the situation with respect to State legislation relating to sexual offences involving children. The maximum penalties that can be imposed for sexual offences varies. In New South Wales the Crimes Act 1900 imposes a maximum penalty of twenty-five years for sexual intercourse with a child under ten years of age. For the offence of sexual intercourse with a child between ten to fourteen years a maximum sentence of sixteen years imprisonment is provided, although if there is aggravation, a maximum term of twenty years is provided (s 66C(1) and (2) of the Crimes Act 1900). Section 66C(3) and (4) provide that sexual intercourse with a child between the ages of fourteen to sixteen years carries a maximum prison term of ten years but in circumstances of aggravation, twelve years. 37 The penalty ranges in South Australia under the Criminal Law Consolidation Act 1935 are generally lower. Indecent assault involving a child under twelve years of age carries a maximum term of ten years imprisonment (s 56) and indecent assault in any other circumstances a maximum prison term of eight years. 38 The sentence regime in Victoria is similar to New South Wales. Maximum prison terms in Queensland a generally lower. In Western Australia the Criminal Code 1913 provides a maximum penalty of fourteen years imprisonment for the act of sexual penetration of a child between thirteen and sixteen years of age although a more lengthy term is provided if the child is under the care, supervision or authority of the offender (s 321). 39 The decisions of appellate courts make plain that there are a number of common elements when sentencing offenders for child related sexual offences. General deterrence is of paramount importance (R v Levi (1997) unreported, NSWCCA, 15 May 1997, R v D (1997) 69 SASR 413; R v AJW (2001) 80 SASR 246; Bell v R [2001] WASCA 40). Any abuse of a position of trust is considered to be an aggravating feature. Other relevant factors in sentencing for this type of offence include the type of conduct committed, the number of victims (see R v LLK (2003) 146 A Crim R 1), the number of occasions on which the offending occurred, the period of time over which the offending occurred and whether the offending was part of a course of conduct (see R v H [2001] NSWCCA 117). 40 In R v Percival [2001] NSWCCA 429 the offender was convicted of two counts of sexual intercourse with a child. For this offence the maximum penalty was eight years imprisonment. Each count related to a separate victim who was between the ages of twelve to fourteen years. There was a Form 1 which included two aggravated indecent assaults relating to another victim who was approximately one year younger. The victims all worked for the offender and, accordingly, he was in a position of trust. They were paid for gratifying his sexual impulses by committing acts of fellatio. The offender pleaded guilty. The sentencing judge imposed a sentence of six years imprisonment with a non-parole period of four years. An appeal against the sentence was dismissed. 41 In R v Pearson [2005] NSWCCA 116 the offender pleaded guilty to three counts of aggravated indecent assault, one count of using a child under the age of fourteen for pornographic purposes, one count of being a principal in the second degree to another person doing something to hinder an investigation. The maximum penalty for each of these offences was seven years imprisonment. 42 The offender was sentenced to three years imprisonment with a non-parole period of two years. The offending involved only one victim and the maximum penalties which the offender was liable are less than the equivalent penalties for similar Commonwealth offences. In this case there was no allegation of sexual intercourse. 43 In Kaye v R [2004] WASCA 227 the Western Australian Court of Criminal Appeal considered the position of an offender who was convicted of one count of offering to assist a person to engage in committing an act of indecency on a person under the age of sixteen years outside Australia contrary to s 50DB(1) of the Crimes Act 1914 (Cth). The conviction followed a trial which lasted some five days. 44 The maximum penalty for the offence was imprisonment for seventeen years. The trial judge sentenced the offender to imprisonment for six years with a non-parole period of three years. 45 The offender was aged seventy-one years at the date of sentence and had no prior record. There was evidence of his significant contribution to the community. Evidence was given at the trial of arrangements which the offender made with a person contemplating travel to Thailand where offending sexual activity could be provided. The trip never took place for the offender's telephone had been tapped and he was arrested before the arrangements could be put into effect. 46 On appeal Malcolm CJ said that the offence fell at the lower end of the spectrum of seriousness contemplated by the legislation but considered that a sentence of six years with a non-parole period of three years fell well within the discretion of the sentencing judge. His Honour remarked that Kaye was only the second case in which an offender has been sentenced under the relevant Commonwealth legislation. 47 McLure J agreed with Malcolm CJ and said of the sentence that (at 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." 48 In the present case the sentences of five years which his Honour imposed in relation to the offences contrary to s 50BA and s 50BB were, in my opinion, at the lowest end of the available range. The criminality in each of the offences was of a high order. The applicant set about a holiday in Thailand with the express purpose of having sexual intercourse with a number of young boys and otherwise sexually exploiting them for his own gratification. He intended and did take a video recording of the activities for his later personal use. In reality the applicant participated in the exploitation of boys under the age of 16 years who were being offered as male prostitutes. Because of the need for the respondent to receive counselling and effective rehabilitation a period on parole was essential. Although at the lowest end of the available range, in my opinion, neither the head sentence nor the parole period for each offence could be considered to be outside of the range requiring intervention by this Court. 49 Although the level of sentence imposed for each offence does not indicate error, in my opinion, this cannot be said of his Honour's conclusion that all of the sentences should be served concurrently without any accumulation. Although the offences occurred during a short holiday in Thailand and were committed as part of that single enterprise they involved a number of individual sexual acts and a number of different victims. In those circumstances concurrency of all the sentences was not appropriate. Persons who set about committing crimes of a sexual nature upon a number of different victims, even if the offence occurs in a short space of time can expect a penalty which imposes a prison term which will be served separately for at least some of the offences (see R v Bilal Skaf [2005] NSWCCA 297 at [128]-[129]; and also see the discussion about multiple victims in R v Dunn [2004] NSWCCA 41 at [50], R v AB & Clifford [2005] NSWCCA 360 at [90]-[84], R v Weldon (2002) 136 A Crim R 55 at 62 per Ipp J). To my mind, the discretion of the sentencing judge miscarried when he failed to provide any accumulation. 50 In the circumstances and having regard to the fact that this is a Crown appeal, although I would not interfere with the term of the individual sentences, in my opinion, the sentence for the offence against s 50BA and that of s 50BB should be accumulated by a period of two years. The non-parole period should similarly be varied. 51 The orders which I propose are: 1. Appeal upheld. 2. The sentences imposed are quashed and in lieu thereof the respondent is sentenced as follows: (i) On each of the four counts contrary to s 50BA(1) sentenced to five years imprisonment to expire on 7 June 2010 with a non-parole period of three years expiring on 7 June 2008. (ii) On the count contrary to s 50BD(1) sentenced to three years imprisonment to expire on 7 June 2008. (iii) On the count contrary to s 50BB(1) sentenced to five years imprisonment commencing on 8 June 2007 and expiring on 7 June 2012 with a non-parole period of three years expiring on 7 June 2010. 52 ADAMS J: I agree with McClellan CJ at CL. 53 HOEBEN J: I agree with McClellan CJ at CL. **********

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