Wanstall v R [2024] NSWCCA 167 | Case summary

Court of Criminal Appeal (NSW)|2024-08-16|Before: Stern JA, Cavanagh J, Sweeney J, Basten JA, Howie J, Beech-Jones J

The applicant's submissions on resentencing

Counsel submitted that in assessing the objective seriousness of the offence, the Court would take into account that there was a single "victim" in the single offence, the offending happened within a relatively short time, the applicant was not dealing with a child, but an adult purporting to be a child, not as a mitigating factor but as a factor to be considered in assessing the objective seriousness of the offence, and the applicant was not also in possession of child pornography. Counsel submitted that it was not open to the sentencing judge to find, and this Court should not find, that the applicant was not intoxicated at any of the times he was in communication with the police officer posing as a child.
Counsel submitted that the Court should take into account the loss of the applicant's teaching career as very severe extra-curial punishment and also the applicant's humiliation by extensive media publicity as extra-curial punishment. Counsel submitted the Court should take into account the applicant's letter of apology and accept his remorse was genuine. Counsel submitted that this Court should give weight to the applicant's good character. He submitted that the applicant's one prior high range PCA offence in 2014, nine years before his sentence for the subject offence, should not disentitle him to leniency.

The Crown's submissions in respect of resentencing

In submitting that no lesser sentence is warranted at law, the Crown submitted that this Court should make the same findings as the sentencing judge on all but one matter: that the Court should assess the offence as in the mid range of seriousness, find that the applicant's prospects of rehabilitation are guarded, take into account the hardship to the applicant's mother, and find that the applicant did not demonstrate remorse or insight, but deflected from and minimised his offending conduct. In respect of the applicant's prior conviction, the Crown submitted that it is relevant but did not urge that it disentitled him to leniency.
The Crown submitted that the Court should not accept as credible the applicant's assertions that he was intoxicated during the offending.
The Crown submitted that the media reporting of the applicant's offending was not misleading, exaggerated or out of the ordinary and so did not constitute extra-curial punishment. The Crown submitted that the nature of the offending was inextricably linked to the applicant's occupation as a teacher, from which he used his knowledge of teenagers to cultivate the presumed child, and the offending must inevitably lead to the end of his career, which therefore should not be treated as extra-curial punishment.

Intoxication

The applicant sought to rely on his intoxication during the period of his offending not in mitigation, but to provide a context or explanation for his out of character behaviour. The issue between the applicant and the Crown was the extent of the occasions on which he was intoxicated when he was communicating with the person pretending to be a child and arranging to meet the "child".
Three of the five days on which the applicant communicated by messages with the "child" were school days, on which the applicant was working. It was the Crown's vigorously argued position that the applicant would not have been drinking and intoxicated on those days. The Crown also submitted that the significant planning to arrange a meeting indicated a clear mind rather than one affected by intoxication. The Crown submitted that the offending did not occur by reason of intoxication.
The applicant relied on most of the messages having been sent to the "child" on Sunday 6 December, and relied on the applicant's report to Dr Andrew Ellis, psychiatrist, that he was intoxicated during online communications on the weekends or evenings.
The issue of the applicant's alcohol consumption at the time of his offending was addressed in reports by Luke Brabant, psychologist, and two reports of Dr Andrew Ellis, psychiatrist, who was cross-examined during the sentence hearing.
The applicant told Mr Brabant that his alcohol use was elevated during the period of offending and he was intoxicated when communicating with the "victim" online.
He told Dr Ellis he was drinking on a daily basis, and drinking when he received a response from the undercover police officer online. He said he was not drinking during the daytime at work, so he was not intoxicated at the time of any messages he sent while he was at work. He reported to Dr Ellis that he began drinking when he arrived home from work in the evenings and he drank on the weekends. The applicant told Dr Ellis he was drinking heavily, more so on Friday evenings and weekends, and said he was intoxicated with alcohol during online communications on weekends or evenings.
Dr Ellis also had access to blood tests (liver function tests) and bank statements showing alcohol purchases by the applicant. Dr Ellis expressed the opinion based on those materials and the applicant's reporting that the applicant was consuming alcohol during his offending at a level likely to have impacted on his decision-making, his impulsivity and risk-taking behaviour, his emotional regulation and poor consideration of consequences. Dr Ellis said the applicant's alcohol consumption was at a level that it was causing damage to his liver and also likely causing brain dysfunction, even when he was not intoxicated. Dr Ellis said that when the applicant was not intoxicated he was likely experiencing withdrawal symptoms, during the day when he was at school.
Dr Ellis accepted that the applicant's conduct in the offending was sustained over a number of days. He said alcohol was not a blanket explanation for the applicant's offending conduct because "alcohol on its own can never cause this type of offending". Dr Ellis said the applicant's alcohol consumption was a contributing factor which, combined with psychological factors, motivated him to act as he did.
I accept Dr Ellis's explanations and opinions. His nuanced explanation of the effects of the applicant's alcohol consumption at the time of his offending provides an explanation for his out of character behaviour. He did not seek to rely on it as an excuse, and it does not provide an excuse for his offending.

Extra-curial punishment

The applicant relied on extensive media publicity as one aspect of extra-curial punishment, and the second that he would never work in his chosen profession of teaching children again.
The media reports were before the sentencing judge and this Court. It appears from that material that the media showed interest and published articles whenever the applicant attended court in relation to the charge. Included in the reports were photographs of the applicant.
In Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21, the judges of the High Court expressed differing views about whether adverse publicity and public humiliation could mitigate a person's sentence. It appears that in this State, different opinions have been expressed, depending on the accuracy or sensationalism of the media reports, the extent of the adverse effect on the offender's reputation, the public interest in the offence being reported and the psychological or physical effect on the offender: R v Allpass (1993) 72 A Crim R 561; Kenny; R v Obeid (No 12); R v Wran [2016] NSWSC 1015; R v Wilhelm [2010] NSWSC 378.
The media reports of the applicant's proceedings were not inaccurate or sensational. While it may be accepted that they caused damage to his reputation, it was no more than arose from the nature of his offending. There was no evidence of any significant psychological or physical effect on the applicant, from the media reporting. I would not regard the media reporting in this case as extra-curial punishment.
In terms of the loss of his career from his offence, the applicant's whole career of 23 years had been in teaching, with awards received. At the time of the offence he was a deputy headmaster and had ambitions to be a principal.
Again, there is a divergence of views of courts about the significance of the loss of an offender's career in sentencing.
In Ryan v The Queen McHugh J said at [54] that it is legitimate to take into account a loss of employment or profession as part of an offender's personal circumstances. In Einfeld v R [2010] NSWCCA 87 the Court agreed, though taking into account the offender's age and stage of career. In R v Zerafa [2013] NSWCCA 222, the Court said that the mitigating effect was limited because it must have been anticipated that an inevitable consequence of the offending would be a loss of the offender's professional status. In FB v R; R v FB [2011] NSWCCA 217 the Court said that the inevitable loss of the offender's teaching career because of sexual offending against a student did not outweigh or undermine the objective seriousness of his offending.
In Kearsley v R [2017] NSWCCA 28 Macfarlan JA said that the loss of the offender's profession was a relevant subjective consideration, but subjective considerations could not cause inadequate weight to be given to the objective circumstances of the offence. Harrison J (as his Honour then was) said at [76]-[77]: "The concept of extra-curial punishment, for which an accused person may, in an appropriate case, be entitled to some consideration on sentence, cannot subsist in or arise from what might be thought of as the ordinary or natural consequences of a conviction… [that the loss of a successful career and good standing the community]… are not the superadded or unexpected result of something that is not reasonably associated with the fact of his conviction and sentence. The very expression 'extra-curial' anticipates the existence or the possibility of some aspect of the imposition of a sentence that does not flow from the due administration of the judicial process."
However the offender's loss of employment was a relevant subjective consideration to be taken into account.
In Greenwood v R [2014] NSWCCA 64, Hoeben CJ at CL, with whom Bathurst CJ and N Adams J agreed, said there was no error in the sentencing judge failing to take into account by way of extra-curial punishment that the offender had lost his job because of his convictions for sexual assault and indecent assault. His Honour said: "Loss of employment, no matter what the employment, would be an inevitable consequence in almost every circumstance where a person was convicted of an offence of this kind."
In R v Poynder [2007] NSWCCA 157, on which the applicant relied, which involved an offence similar to the applicant's, James J, with whom Rothman and Harrison JJ agreed, said at [86]: "Some allowance could properly be made for the severe extra-curial punishment the respondent had suffered and would suffer, including the virtually certain loss of his profession of 25 years and his livelihood."
In Khorami v R; R v Khorami [2021] NSWCCA 228, Bell P (as his Honour then was) said, referring to Ryan v The Queen: "The applicant's future unemployability in the… profession also constitutes a significant element of extra-curial punishment that will inevitably flow from the convictions.": at [40].
In R v Talia [2009] VSCA 260, the Victorian Court of Appeal accepted that a person's disqualification from their chosen profession constitutes extra-curial punishment, although the Court distinguished between a disqualification resulting from criminal conduct in the course of employment and criminal conduct remote from that employment but having that consequence.
The loss of the applicant's career, more significant than the loss of a particular employment, as a result of his offending, which was not committed in the course of his employment, although not completely remote from it, I regard as significant extra-curial punishment, given his former success in that career, his age and the likelihood that he would have continued in that career for some time, but for his offending.

Remorse

The Crown submitted that the applicant did not give evidence at his sentence hearing but instead expressed remorse only through the letter he provided and experts whose reports he relied on, and in those expert reports he sought to minimise his offending.
The applicant relied on his expressions of remorse to Mr Brabant and Dr Ellis and his character referees and submitted there is not a basis to find that his expressions of remorse were not genuine.
The Community Corrections Officer who prepared the Sentencing Assessment Report said the applicant showed insight into his offending behaviour, identifying the impact he could have caused the "victim". The applicant expressed remorse, insight, contrition and shame to his mother and to Luke Brabant, the psychologist.
Dr Ellis said the applicant "indicated statements at… interview consistent with an understanding of … the effect [of his actions] on a possible victim and society". Dr Ellis said the applicant was agreeable to treatment and supervision. He said "While there is no psychiatric expertise to determine if statements of remorse are genuine, there is no indication that he is seeking to avoid responsibility or appropriate rehabilitation".
In his letter to the sentencing judge the applicant said he was ashamed, remorseful, shocked and dismayed, disgusted and appalled by the conversation he engaged in. He did seem to cast some blame on the response he received from the undercover police officer, and regret the impact of the offence on his life, but I accept he also displayed a deal of genuine remorse, and I will take that into account.

Resentence

In addition to the above matters, I take into account the following subjective circumstances of the applicant. He is now 50 years old. His only prior matter on his record was a high range PCA offence in 2014, which does not disentitle him to leniency, and his record otherwise demonstrates that this offence was out of character. He was assessed by Mr Brabant and Dr Ellis as at below average risk of sexual reoffending.
He had completed a Positive Lifestyle Program through the New South Wales Court Chaplains Association before sentencing. On the basis of all the material his prospects of rehabilitation appear positive.
He had been living with his mother prior to sentencing and assisting her with all aspects of her daily living. He retains his mother's and family's support.
While in custody the applicant has worked delivering numeracy tutoring to inmates and performing administration duties for the educational services in Kirkconnell Correctional Centre, completed the Kirkconnell Peer Mentoring Program, engaged in other studies and has had no disciplinary breaches or charges.
For his late plea of guilty I will apply a discount of 10%, as the sentencing judge did.
Neither party took any issue with the sentencing judge's assessment of the offence as in the mid range of seriousness, and I will proceed on that basis. I have taken into account general and specific deterrence, although I consider it unlikely the applicant will reoffend again in the same way. I have taken into account the maximum penalty of 15 years for the offence. The ratio between the non-parole period and the sentence is in the same proportion as chosen by the sentencing judge.
I propose the following orders: 1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the sentence imposed in the District Court on 26 July 2023. 4. In lieu thereof, the applicant is sentenced to 2 years 8 months imprisonment with a non-parole period of 18 months, to date from 17 May 2023. The sentence will expire on 16 January 2026. The non-parole period will expire on 16 November 2024.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 September 2024

JUDGMENT

STERN JA: I agree with the orders proposed by Sweeney J and with her Honour's reasons for proposing those orders.
CAVANAGH J: I agree with the orders proposed by Sweeney J for the reasons set out in her Honour's judgment. I would only wish to make some additional observations.
It has long been recognised that in some circumstances the Court may have regard to extensive media reporting and adverse publicity as a form of extra curial punishment and thus take that factor into account in the exercise of the sentencing discretion (see Duncan v R [2012] NSWCCA 78 at [28] per Basten JA citing Kenny v R [2010] NSWCCA 6 at [49] per Howie J ("Kenny"); see also R v Nuttall; Ex parte Attorney-General (Qld) (2011) 209 A Crim R 538 at [65]).
There has been some differences of judicial opinion as to the circumstances in which adverse publicity should be viewed as an extra curial punishment. However, as identified by Beech-Jones J (as his Honour then was) in R v Obeid (No 12) [2016] NSWSC 1815 at [102], the position appears to be that adverse media reporting should only be considered extra curial punishment when it reaches a level that it has some impact on the physical or psychological wellbeing of the offender.
That does not mean that it is only necessary for an offender to present evidence of the psychological effects of the media reporting for the reporting to be considered a form of extra curial punishment. In every case, it must be necessary to consider the level and content of reporting and have regard to the nature of the offending and the public interest in the offending. A sentencing judge would thus need to consider both the nature and extent of the reporting and the impact on the offender.
In this case, the media interest and reporting was extensive including in the nightly news bulletins and across the print media. That was no doubt a reflection of the applicant's role as a Deputy Principal at a High School and the community's justifiable concerns. However, there is nothing in the psychiatric evidence relied upon by the applicant which might lead to the conclusion that the fact of the extensive reporting had any particular impact on the applicant.
Of course, it must have had some impact on him but, in my view, merely pointing to the impact that such adverse publicity would have had on the offender does not suffice.
Media reporting is part of our system of open justice and is to be expected, particularly in a case like this. It is a reflection of the nature of the offending.
For the reasons I have identified, I agree with Sweeney J that the applicant has not established that the reporting about him in this matter is such that it should be viewed as a form of extra curial punishment.
SWEENEY J: Damian Wanstall, the applicant, seeks leave to appeal against the sentence imposed upon him by Judge Colefax SC in the District Court on 26 July 2023 for one offence of using a carriage service to procure a person he believed to be under 16 years of age for sexual activity. That offence, contrary s 474.26(1) of the Criminal Code Act 1995 (Cth) had a maximum penalty of 15 years imprisonment.
The applicant pleaded guilty to that offence in the District Court. Judge Colefax SC sentenced him to 3 years 7 months imprisonment with a non-parole period of 2 years, commencing on 17 May 2023.
The applicant seeks to rely on the following grounds of appeal: 1. His Honour erred in taking a statement said to have been made by the applicant's solicitor in the Local Court, and said to be inconsistent with the agreed facts, as a reason to have 'considerable reservations' about what the applicant said to the experts who interviewed him. 2. His Honour erred in finding that the applicant had been untruthful in stating that he was intoxicated when he was communicating with the undercover police officer posing as a child. 3. His Honour erred in not taking into account the extra-curial punishment suffered by the applicant. 4. The sentence imposed on the applicant was manifestly excessive, and in particular: 1. His Honour gave insufficient weight to the evidence of the applicant's contrition; 2. His Honour gave insufficient weight to the applicant's prior good character; and 3. His Honour gave no weight to the fact that no injury was suffered by any person.
The Crown conceded that it would be open to the Court to find error had been shown in respect of ground 1, but submitted that no lesser sentence is warranted.
During the hearing, the Court indicated it was minded to accept the Crown's concession in respect of ground 1. Counsel for the applicant and Crown then addressed on the other grounds relied on by the applicant in relation to the Court resentencing the applicant.

Ground 1

In the course of the sentence proceedings the applicant's counsel read an affidavit from the applicant's then solicitor, which attached media articles as the basis for his submission that the media reporting in relation to the applicant's offence constituted extra-curial punishment. One of the media articles reported that in an early Local Court appearance the applicant's solicitor had advised the court that police had "distorted the truth" by not informing the court that the advertisement included the word "legal". Judge Colefax SC said that that fact conflicted with the agreed facts, with which the applicant had agreed by his plea of guilty. His Honour stated that he therefore concluded that the applicant admitted having given false instructions to his solicitor in the Local Court. His Honour stated "That is one of the reasons I had considerable reservations about accepting anything that you have said second hand to experts". The applicant submitted that that finding by his Honour operated adversely to the applicant in the sentence proceedings, such as when his Honour declined to believe that the applicant was genuinely remorseful for his offence.
It was common ground between the parties, and evidence was adduced in the appeal hearing, that after the advertisement was initially placed and after police responded to the advertisement, the advertisement was modified to include the word "legal".
The applicant submitted that his Honour erroneously assumed, without any evidence, that the solicitor's statement to the Local Court was based on specific and false instructions from the applicant. The Crown accepted that, in the absence of evidence that the solicitor's statement to the Local Court was based on the applicant's instructions, his Honour erred in so concluding and that there were other inferences available than the conclusion his Honour reached.
The Court is satisfied that his Honour erred in making that finding adverse to the applicant in the absence of evidence to support it. It is therefore necessary to resentence the applicant in accordance with Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. The issues raised by the applicant in support of his other grounds of appeal will be considered in the context of resentencing him.

Wanstall v R

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