Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Whiley v R [2014] NSWCCA 164 Hearing dates: 3 April 2014 Decision date: 20 August 2014 Before: Bathurst CJ at [1]; Hoeben CJ at CL at [2]; Adams J at [3]. Decision: 1. Time to appeal extended. 2. Grant leave to appeal against sentence. 3. The sentences for charges one and three be quashed and in lieu thereof the following sentences be imposed - (i) as to charge one, a non-parole period of 9 months commencing on 20 October 2010 and expiring on 19 July 2011 with an additional term of 3 months commencing 20 July 2011 and expiring on 19 October 2011; (ii) as to charge three, a non-parole period commencing 20 June 2011 and expiring 19 March 2012 with an additional term of 3 months commencing 20 March 2012 and ending on 19 June 2012. (iii) In all other respects the sentences remain unchanged. Catchwords: CRIMINAL LAW - sentence appeal - whether manifestly excessive - whether primary judge erred in failing to apply a discount pursuant to s 23(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) Legislation Cited: Crimes Act 1900 (NSW), ss 192E(1)(a), 91H(2) Child Protection (Offenders Registration) Act 2000 (NSW), s 17(1) Crimes (Sentencing Procedure) Act 1999 (NSW), s 23 Criminal Appeal Act 1912 (NSW), s 6(3) Cases Cited: RJT v R (2012) 218 A Crim R 490 Pearce v The Queen [1998] HCA 57; 194 CLR 610 Category: Principal judgment Parties: Grant Neville Whiley (Applicant) Regina (Respondent) Representation: Counsel: P Lange (Applicant) R Herps (Respondent) Solicitors: Legal Aid NSW (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2010/350380; 2011/71824 Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-10-26 00:00:00 Before: Solomon DCJ File Number(s): 2010/350380; 2011/71824 Judgment 1BATHURST CJ: I agree with Adams J. 2HOEBEN CJ at CL: I agree with Adams J. 3ADAMS J: Introduction 4On 8 November 2011 the applicant pleaded guilty in the Local Court to 16 offences of dishonestly obtaining property by deception under s 192E(1)(a) of the Crimes Act 1900 (NSW), one offence of failing to comply with reporting conditions brought under s 17(1) of the Child Protection (Offenders Registration) Act 2000 (NSW) and two offences of possessing child pornography under s 91H(2) of the Crimes Act. He was sentenced on 26 October 2012 in the District Court in respect of these offences together with 18 further offences of dishonestly obtaining property by deception on a Form 1 and one offence of possessing five grams of cannabis on a second Form 1. 5An offence under s 192E(1)(a) attracts a maximum penalty of 10 years imprisonment, the offence of failing to comply with reporting conditions attracts a maximum penalty of 500 penalty units or 5 years imprisonment and the offences of possessing child pornography a maximum penalty of 10 years imprisonment. Each of the offences can be dealt with summarily. 6Involving a measure of accumulation, the total effective sentence imposed on the applicant was a non-parole period of 12 years, 7 months and 28 days commencing 21 October 2010 and expiring on 17 June 2023 with a balance of term of 2 years expiring on 17 June 2025. The overall sentence is not the subject of complaint and we have therefore said nothing about it. Grounds of appeal 7The applicant seeks leave to appeal against sentence upon the following grounds - Ground 1: His Honour erred in failing to take into account the assistance provided by the applicant in relation to the sexual abuse he had suffered as a child. Ground 1A: A miscarriage of justice resulted from the failure to put expressly the contents of Exhibit 3 forward as being relevant to a discount to be afforded in accordance with s 23 of Crimes (Sentencing Procedure) Act 1999 (NSW). Ground 2: When sentencing the offender in respect of the child pornography offences, his Honour erred in failing to take into account the applicant's earlier attempts to rehabilitate himself in custody. Ground 3: When sentencing the offender in respect of the child pornography offences, his Honour erred in finding, contrary to the evidence, that the applicant had attempted to enter the CUBIT program only during the period June 2009 to November 2009. Ground 4: The sentences in respect of the counts 1 and 3 of obtaining by deception were manifestly excessive. 8The application for leave to appeal was filed out of time. Leave to appeal was opposed, essentially on the basis that the delay is unexplained but, principally, on the ground that the appeal has no merit and therefore the application for an extension of time should be refused. The child pornography offences 9The facts were not in dispute and the following account is taken substantially from the agreed facts as summarised by the primary judge. In September 2010 police investigating a number of fraud offences identified the applicant as the perpetrator and arrested him on 21 October 2010. At the time of his arrest the applicant was living in a boarding house. On 9 November 2010 a cleaner found a thumb drive hidden in a desk in the room which had been occupied by the applicant and gave it to police. On examination, the drive was found to contain about 30,000 images of child pornography, the subject of the first offence of possessing child pornography and 126 videos, the subject of the second of these offences. As is conventional, random examinations of a selected number of images were undertaken. These comprised 700 images, described in schedules created by two of the investigating officers. It was agreed by the parties that the schedules were admissible as evidence of the nature and content of the whole of the material and the proportion of a type of child abuse material randomly examined should be taken to be present in the same proportion of the material as a whole. 10In respect of the images to which the first offence is directed, almost 25,000 contained images of children and 5,000 were computer produced pictures of children. It was estimated that about 400 images of children, some of whom were three or four years of age, and 1000 of the pictures depicted sadistic behaviour or sexual behaviour involving children and an animal (within the Copine Scale 10 rating). Further details are unnecessary. Within the Copine Scale 9 rating were almost 2000 images and just over 3,000 pictures of children. These depicted sexual assaults of various kinds, including penetrative sex, mostly involving very young children in the age range of four to eight years. About 250 pictures depicted children being subjected to sexual assault (Copine Scale 8) and 400 depicted pictures of explicit sexual activity with children (Copine Scale 7). About 12,500 images and 200 pictures of children were within the Copine Scale 6 rating involving explicit erotic posing, something over 5,000 images and 170 pictures fell within the Copine Scale 5 rating and almost 3,000 images within the Copine Scale 4 rating with 84 images within the Copine Scale 3 (this last being surreptitiously taken photographs of children in play areas or other safe environments showing their underwear or varying degrees of nakedness). So far as the videos were concerned, 101 involved children and 25 computer produced pictures of children. Three videos came within Copine Scale rating 10, 59 within Copine Scale 9, one within Copine Scale 8, 34 within Copine Scale 7, and the others distributed between Copine Scale 6, 5, 4 and 3. 11The primary judge was satisfied that the applicant possessed this material for his own use and not for dissemination and there was no evidence that it might be viewed by vulnerable or susceptible persons. On the other hand, his Honour rejected completely the applicant's evidence to the effect that he found the material when he searched the internet looking for a child's movie for his niece. 12For possession of the videos the applicant was sentenced to 4 years imprisonment with a non-parole period of 2 years and 8 months and, in respect of the images, 6 years imprisonment with a non-parole period of 4 years. Breach of reporting conditions 13So far as the offence under s 17 of the Child Protection Offender Registration Act 2000 (NSW) is concerned, this arose from the applicant being placed on the New South Wales Child Protection Register when he completed sentences imposed in the District Court for four offences with sexual intercourse with a child under the age of 10 years. His supervision was due to cease on 9 December 2016. He breached the reporting conditions by using false identities and not declaring the details of motor vehicles or a number of mobile telephones used by him. His Honour rightly held that these could not be regarded as merely technical breaches but, rather, they were deliberate attempts by the applicant to circumvent the main purpose of registration, namely supervision in the community of child sexual offenders. This also was not his first offence of this kind. He had been sentenced on 11 March 2005 in the Local Court to imprisonment for 12 months with a non-parole period of 9 months for failing to comply with the reporting conditions. He was sentenced to 2 years and 6 months imprisonment with a non-parole period of 10 months. Dishonesty offences 14The dishonesty offences were committed over a five month period between May and October 2010. A number of them had somewhat unusual features, which makes it necessary to provide some detail of their commission. 15Offence 1 was dishonestly obtaining an Audi motor vehicle. The victim advertised his vehicle for sale on the internet and was contacted on 21 May 2010 by the applicant who arranged to meet that day. He purchased the vehicle with a bank cheque drawn on a non-existent account. Three days later, on 24 May, the victim received a text message from the applicant telling him where the vehicle was parked and that the keys were in his mailbox. The vehicle was then recovered by the victim who found, inside the glove box, a $20 note and a letter which read, "Sorry to have conned you but I needed the car on Saturday to make some money. You and your family are lovely". The applicant used a false identity to commit this offence. 16Offence 2 was committed on 22 May 2010 when the applicant, using another false identity purchased a diamond ring from the victim with a cheque, again drawn on a non-existent account. The applicant drove the Audi he had dishonestly obtained on the previous day to the meeting, obviously to impress the victim as, in effect, he admitted in his letter to the car owner. The ring was later recovered from a Cash Converter shop. 17Offence 3 occurred on 12 June 2010, involving the purchase of a BMW vehicle by using a fraudulent cheque and a false name. On the following day, the applicant contacted the victim by text message informing him of the location of the vehicle and the keys. The victim recovered the vehicle that day, finding a letter which read, "Sorry to do this to you you're good folk. This was not to hurt you. I go after the bigger players". The vehicle was used as evidence of his bona fides for the purpose of offence 6 when the applicant attended at the home of another victim and purchased a diamond ring for $6,500 using a fraudulent cheque and false identification. The ring has not been recovered. 18On 4 July 2010 the applicant purchased a further diamond ring worth $15,000 using a fraudulent account and a false identity, using another BMW which he had purchased on the same day using what can be called his usual modus operandi. The vehicle was subsequently recovered on 8 July 2010, having travelled over 1,000 kilometres since the applicant had acquired it. 19It is not necessary for present purposes to describe in further detail the remaining offences. So far as the offences to which the applicant pleaded are concerned, nine involved the acquisition of vehicles and five involved acquisition of jewellery. In respect of the Form 1 offences, six involved the acquisition of motor vehicles and 11 the obtaining of either jewellery or camera equipment. The applicant used the vehicles he had obtained for the purpose of committing at least five of the property thefts. Of the indicted charges relating to motor vehicles, three were found undamaged, one had been abandoned and was damaged, with its contents missing and seven were not recovered; of the motor vehicle charges on the Form 1, all were recovered. The vehicles which had not been recovered were sold by the applicant. Otherwise, the only item recovered was the ring involved in offence two. The total value of property unrecovered is $310,000. 20Overall, for the dishonesty offences, the applicant's non-parole period was 7 years with an effective additional term of 1 year. This additional term is, for practical reasons, immaterial since the sentence for the failure to comply with reporting conditions commenced on the expiration of the effective non-parole period for the frauds and the child pornography sentences were wholly accumulated on the sentence for failing to comply with reporting conditions. The sentence proceedings 21Of some significance in relation to the pornography offences was that, on 8 February 2001, a charge of possessing child pornography had been brought against the applicant in the Local Court and dismissed under s 10 of the Crimes (Sentencing Procedure) Act 1999 and, on 27 May 2005, the applicant was sentenced to 2 years imprisonment with a non-parole period of 18 months in respect of three offences of possessing child pornography (the non-parole period being reduced slightly when he appealed to the District Court). Again, on 9 December 2008 the applicant was sentenced to 4 years imprisonment with a non-parole period of 3 years for two offences of disseminating/producing child pornography (reduced on appeal to this Court to 12 months with a non-parole period of 9 months). 22It is not surprising that the judge found the child pornography offences were "of a very high order of criminality". Psychiatric evidence was called from Dr Richard Furst in respect of these offences. I will refer to this evidence in due course. 23His Honour dealt with the dishonesty offences in the following way - "I now turn to the 16 dishonestly obtain property by deception offences in respect of which I am to sentence the offender brought pursuant to s 192E(1)(a) of the Crimes Act 1900 (NSW) together with 18 further offences of dishonestly obtain property by deception contained in a Form 1. The agreed facts pertain to each of the ... offences are [sic] contained in Exhibit A. The offender committed the offences over a five month period between May and October 2010 and fraudulently appropriated in excess of $320,250 from victims. Each of the offences committed by the offender involved the offender providing false ANZ bank cheques to victims who were vendors of motor vehicles, jewellery or cameras. The offender sold all the property dishonestly obtained by him with the exception of two motor vehicles in respect of which he facilitated the return to their owners." 24In respect of these motor vehicle offences, the applicant was sentenced to 3 years with a non-parole period of 2 years for ten of the offences, 2 years with a non-parole period of 1 year and 4 months for one and 4 years with a non-parole period of 2 years and 8 months in respect of another, 12 offences in all. It is not altogether clear why two of these offences received different sentences to the others but, since no issue was taken as to the correctness of any individual sentence, it is not necessary to consider this issue. At all events, as this Court has previously stated, the crucial question in this Court (absent any patent error in respect of a particular sentence) will be whether the totality of punishment appropriately reflects the criminality involved. In respect of the other stolen items, the applicant was sentenced to 3 years with a non-parole period of 2 years for two of them and 2 years with a non-parole period of 1 year and 4 months for two of them. The overall sentence for the fraud offences was 8 years imprisonment with a non-parole period of 7 years commencing on 21 October 2010, the date of the applicant's arrest. The Form 1 offences were taken into account with the offence for which a four year sentence was imposed. 25The individual sentences reflect a 25 per cent discount as the applicant had pleaded guilty at the first reasonable opportunity. 26The applicant gave evidence to the effect that he used the proceeds of the frauds to purchase drugs for the purpose of committing suicide. His Honour rejected this evidence. At all events it was of very little mitigatory value, given the calculated methods used to effect the frauds. 27The judge noted the applicant's "long history" of committing fraud offences, his criminal record showing that he was first convicted of a fraud offence in 1991 and since that time had been convicted of 79 further fraud offences, being sentenced to terms of imprisonment on three occasions for this crime, last term of imprisonment imposed on 11 March 2005. The applicant was released from custody on 23 April 2010 and was therefore at liberty for six months until arrested in respect of the current matters on 21 October 2010. 28The subjective features to which the primary judge referred were that the applicant's life as a young child was affected by his father's drinking and gambling, his parents separating when he was six years of age and his being sexually abused between the ages of 12 and 13 by a clergyman at his school. His Honour considered that this reduced his moral culpability with regard to the child pornography offences. 29As mentioned, tendered on the sentencing proceedings was a report of 12 May 2012 by Dr Furst. This indicated that the applicant had recently been diagnosed as suffering from obsessive compulsive disorder for which he was receiving treatment. Dr Furst noted the applicant's extensive history of substance abuse, mainly involving cocaine and amphetamines. His opinion was that, as well as suffering from obsessive compulsive disorder and a substance abuse disorder, the applicant suffered from anti-social disorder, had poor coping skills, and was affected by the long term effects of childhood sexual abuse. 30Documents were tendered on the sentence proceedings which dealt with the applicant's attempts to gain entry into the CUBIT program during the period from June to November 2009 which was, no doubt, the basis for the judge's reference to this period as one during which he had sought assistance. So far as any earlier period is concerned, Dr Furst's report recorded a history from the applicant of having made numerous requests from February 2005 to be accepted in the CUBIT program and had asked for this at every classification meeting from 2008 onwards. The applicant gave evidence of these attempts, which was not the subject of cross-examination (the significance of the 2005 date was that, on 11 March 2005 he was sentenced in the Local Court to a term of imprisonment of 2 years for possessing child pornography and was eligible for classification from 27 May 2005). 31It had been submitted, in effect, that the applicant had done his best whilst in prison to obtain counselling, which might well have enabled him to avoid the commission of at least the pornography offences. The primary judge dealt with this submission as follows - "Insofar as the offender's rehabilitation is concerned, I find that the offender must have been aware of his unnatural sexual interest in children from the time of his first convictions for the offences of sexual intercourse with a child under the age of ten in 1998. The offender from that time up until the present, with the exception of the period from June 2009 to November 2009 whilst he was in custody, has not sought any treatment or counselling for his unnatural sexual interest in children. I do not accept the offender's evidence regarding his belief that counselling was not available in the general community. The offender is an intelligent man. I am of the view that he had means to pay for rehabilitation whilst in the community after his release from custody on the last occasion, but that he chose not to seek such counselling. The offender's record and his lack of motivation to obtain counselling leads me to the belief that the offender is unlikely to seek counselling and rehabilitation on his release from custody and I cannot, therefore find, that the offender is unlikely to re-offend, as was submitted to me by his counsel." In this Court, Mr Lange of counsel for the applicant points out that the Crown had not suggested below that the applicant had not sought treatment from 2005 onwards and this position appears to have been accepted by his Honour during argument, though his Honour expressed scepticism as to the reasons given by the applicant for not seeking assistance when he was released from prison in April 2010. 32The primary judge (generously) found that, although the applicant had not indicated remorse or contrition in respect of any of the offences, he should infer that there was a degree of contrition from the offender's pleas of guilty. His Honour summarised (sufficiently for present purposes also) the applicant's "lengthy criminal record" as "involving not only possession of child pornography, failure to report and fraud offences but also offences of violence, weapon offences, break enter and steal offences and drug offences", observing that the applicant had spent over 15 years of his life in custody. In light of the criminal history, the primary judge's conclusion that the offences for which he was being sentenced could not be classified as uncharacteristic aberrations was (with respect) entirely justified. His Honour further observed that the applicant's commission of these offences "manifested a continuing attitude of disobedience and, that being the case, retribution, deterrence and the protection of society are factors to be considered ... in determining the totality of the offender's criminality". No doubt because of this strong language, the primary judge stressed that the effective non-parole period which the applicant was to serve did not involve any element of preventative detention. Special circumstances resulted from the accumulation of a number of the sentences but the effective non-parole period remained greater than 75 per cent of the overall head sentence, a matter to which the primary judge referred, in this respect stating that this period "has been determined by me to properly reflect the criminality of the offender". Grounds 1 and 1A: failing to take account of assistance 33Detective Senior Constable Turnbull stated that, on 16 February 2012 he obtained a signed statement from the applicant concerning sexual acts committed upon him by a person of interest, a teacher at a Catholic school during the late 1970s and 1980s. The person of interest was residing overseas and the officer was in the process of commencing extradition proceedings against him. The officer, in effect, accepted the truthfulness of the applicant's allegations, noting that they were consistent with sexual acts committed upon a large number of other victims forming part of the investigation, which was current at the time of the applicant's complaint. 34The applicant had, it may be accepted, provided a credible account to police relating to an identifiable individual who was to be the subject of prosecution and had offered to assist in that process by way of providing a statement. However, counsel for the applicant did not suggest to the primary judge that any discount based upon s 23(1) of the Crimes (Sentencing Procedure) Act was appropriate. His Honour referred to the fact that the applicant had been sexually abused as a mitigating factor, which was as it seems the reason for which the evidence was tendered, but did not address the relevance of the assistance provided by the applicant in terms of its significance for the purpose of reducing the penalty otherwise appropriate by virtue of s 23(1). 35Section 23(1) does not exclude offenders who were themselves the victims of earlier sexual abuse from obtaining a discount where they are prepared to assist authorities in the detection and investigation of such offences: RJT v R (2012) 218 A Crim R 490. It does not appear from the Senior Constable's statement that the applicant had agreed to give evidence against the perpetrator, although it is fair to observe that this appears to have been the officer's assumption. The clear public policy behind s 23(1) is to encourage persons to assist authorities where otherwise they might not do so. Sexual assault is an area in which many victims are, for a variety of reasons, somewhat reluctant to come forward, let alone to give evidence. However, in every case it is necessary to assess the significance of the assistance, given that the discount serves a utilitarian purpose. 36As with all cases where a discount under s 23(1) is sought, the alleged victim has or might have a great deal to gain from making allegations of wrongdoing, so that issues of credibility will loom large in any consideration of the value of the victim's evidence. Here, the applicant's credibility, it must be said, is very limited indeed given his extensive history of dishonesty offences. Also, the actual usefulness of his information in the investigation of the perpetrator's alleged offences is incapable of assessment. Obviously, the disclosure was not timely (s 23(2)(b)) and it appears the perpetrator had already been identified by other victims. Moreover, it is impossible to assess the truthfulness, comprehensiveness and reliability of the applicant's statement without it being available for examination. The officer declined to make it available to the defence but, obviously, had a subpoena been issued, the statement must have been provided at least to the Court. This was not done. 37In the result, the possibility that some slight discount might have been allowed under s 23(1) had it been sought does not to my mind bespeak error by the primary judge in not dealing with the matter in this way when he was not asked to do so. Grounds 2 and 3: the applicant's attempts at rehabilitation. 38Whilst I would accept that the primary judge should have proceeded on the basis that the applicant had persistently attempted to obtain this assistance from 2005, and this error to some extent affected his Honour's reasoning, the crucial fact (as pointed out by the judge) was that he made no attempts in this regard following his release. Moreover, he was not punished in any sense for failing to attempt to avail himself of the relevant prison programs. Rather, the question was whether, in all the circumstances and given the applicant's history, his prospects for rehabilitation were favourable. In my view, the primary judge's inability to conclude that the applicant was unlikely to re-offend was inevitable and would not have been materially affected by a finding that he had sought assistance during the earlier period. It is possible that, had he obtained that assistance, the applicant would not have committed the subsequent offences but it does not follow, of course, that these were in any sense otherwise than made in the exercise by him of a deliberate intention with the knowledge that they were not only criminal but morally culpable to a high degree and for which he was fully responsible. I do not accept that this error materially affected the applicant's sentences. Ground 4: the sentences in respect of counts 1 and 3 were manifestly excessive 39As I have already pointed out, the applicant received the same sentence in respect of each of these offences, in effect involving the return of the vehicle, to that imposed for a number of the other offences involving motor vehicles which, however, were not recovered. The Audi involved in offence 1 was returned four days after it was taken, together with a $20 note, whilst the BMW the subject of offence 3 was left in an identified car park with the keys in the fuel cap area, the victim being notified by text message of the vehicle's whereabouts. The extent of the loss suffered by a victim of fraud will usually be, and in this case is, the most significant (though not the only) measure of objective seriousness for this offence, so the fact that the vehicles were, in effect, returned undamaged to the victims shortly after they were taken, significantly reduces their objective seriousness. Factors pointing in the other direction were that the offences were pre-planned and involved the use of false bank cheques and false identification and also using the vehicles to carry out other frauds. 40It is essential for each offence to be separately considered from the point of view of assigning an appropriate sentence for it: Pearce v The Queen [1998] HCA 57; 194 CLR 610. With respect, it seems to me that the primary judge did not undertake this course. The maximum term of imprisonment for each of these offences is 10 years. The starting point for each offence was four years imprisonment. This represents, to my mind, a far greater proportion of the maximum term than is justified by the objective circumstances of the offences, even accepting as I do that there are no mitigating circumstances that justify affording the applicant any leniency. 41It was submitted by the Crown in this Court that, even if error has been established, the appeal should be dismissed under s 6(3) of the Criminal Appeal Act 1912 (NSW) since no lesser sentence, it is contended, is warranted in law or should have been imposed. This submission is based upon the argument that, since (even accepting the error) the overall sentence for all the offences for which the applicant was sentenced is justified by the criminality involved, no further adjustment should be made. In my view Pearce requires the Court to consider the appropriate sentence for each offence. That being so, the sentence which should have been imposed for each of the first and third offences is 12 months with a non-parole period of 9 months. However, the four months accumulation imposed by the primary judge before commencement of the sentence imposed for charge two is appropriate and should be retained, as are the four months accumulations of the sentence for offence three on that for offence two and for offence six on the sentence imposed for offence three (these are consecutive sentences despite the numbering). The consequence is that the overall sentence would remain unchanged and, accordingly, the appeals as to these sentences should be dismissed. Conclusion 42I propose that time to appeal be extended, leave to appeal against sentence be granted, the sentences for charges one and three be quashed and in lieu thereof the following sentences be imposed - (1)as to charge one, a non-parole period of 9 months commencing on 20 October 2010 and expiring on 19 July 2011 with an additional term of 3 months commencing 20 July 2011 and expiring on 19 October 2011; (2)as to charge three, a non-parole period commencing 20 June 2011 and expiring 19 March 2012 with an additional term of 3 months commencing 20 March 2012 and ending on 19 June 2012. (3)In all other respects the sentences remain unchanged. ********** 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: 20 August 2014