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Cluett v The Queen [2019] WASCA 111

appeal against sentence — 2 counts of using a carriage service to access child exploitation material offences contrary to s 474.19(1)(a)(i) of Commonwealth Criminal Code — state offence — original sentence imposed 9 months’ imprisonment, with a recognizance release order providing for offender to be released after serving 6 months and 1 day — a number of unusual circumstances combine to make this one of the exceptional cases which does not require imposition of generally appropriate type of sentence for the offences — antecedents — s 16A(2)(m) — nature and circumstances of the offence — s 16A(2)(a) — general deterrence  — s 16A(2)(ja) — number of images possessed or accessed much lower than ordinarily features in cases of this kind — offender’s viewing of material was not motivated by a sexual attraction towards children — not a case which is aggravated by offender paying to access pornography, or participating in forums or other communications which promote the dissemination and production of child exploitation material — must be emphasised that absence of aggravating features does not make this a victimless crime — offender 63 year old man at time of sentence without any relevant criminal record — non-drug induced mental impairment which has causal relationship to offence can impact on considerations of personal and general deterrence, in addition to reducing the moral culpability of the offender — offender’s autism spectrum disorder was contributing factor to offending, reduces both offender’s moral culpability and significance of general deterrence as sentencing consideration —  specific deterrence — s 16A(2)(j) — personal deterrence as sentencing factor significantly reduced by psychologist and psychiatrist’s view of future risk of offending — hardship to the offender — symptoms of offender’s autism spectrum disorder mean imprisonment would be much more onerous for offender than ordinary prisoner — difficulty in interacting with others make it harder for offender to cope within the prison regime, while eccentricities which are manifestation of that disorder are likely to make offender target for bullying — resentence — offender released under a recognisance release order for commonwealth offences and a suspended imprisonment order for the state offence
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