AIM v The State of Western Australia
[2014] WASCA 155
•27 AUGUST 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: AIM -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 155
CORAM: MAZZA JA
HALL J
HEARD: 4 AUGUST 2014
DELIVERED : 27 AUGUST 2014
FILE NO/S: CACR 107 of 2014
BETWEEN: AIM
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :STAUDE DCJ
File No :IND 78 of 2013
Catchwords:
Criminal law and procedure - Application for extension of time to appeal against sentence - Total effective sentence of 12 years' imprisonment imposed for 13 counts of sexual offending against two complainants under the age of 13 years - Whether sentence infringed the totality principle - Victims the pupil and granddaughter of the appellant - Appellant aged 70 years at the time of sentencing - Turns on its own facts
Legislation:
Criminal Code (WA), s 320(2), s 320(4)
Result:
Extension of time refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr C Miocevich
Respondent: No appearance
Solicitors:
Appellant: D G Price & Co, Barristers & Solicitors
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
ARK v The State of Western Australia [2014] WASCA 45
BPR v The State of Western Australia [No 2] [2007] WASCA 200
CJF v The State of Western Australia [2012] WASCA 69
Do v The State of Western Australia [2013] WASCA 218
Downie v The State of Western Australia [2013] WASCA 244
EPD v The State of Western Australia [2011] WASCA 264
FGC v The State of Western Australia [2008] WASCA 47
GGM v The State of Western Australia [No 2] [2011] WASCA 259
GHK v The State of Western Australia [2014] WASCA 19
GHS v The State of Western Australia [2006] WASCA 42
HFM v The State of Western Australia [2012] WASCA 217
JWD v The State of Western Australia [2013] WASCA 233
KC v The State of Western Australia [2008] WASCA 216
KMB v The State of Western Australia [2010] WASCA 212
MAS v The State of Western Australia [2012] WASCA 36
MMC v The State of Western Australia [2012] WASCA 187
MPD v The State of Western Australia [2008] WASCA 57
PDS v The State of Western Australia [2006] WASCA 20
Pendleton v The Queen [2002] WASCA 4
RDC v The State of Western Australia [2012] WASCA 16
RFS v The State of Western Australia [2012] WASCA 58
Roffey v The State of Western Australia [2007] WASCA 246
SG v The State of Western Australia [2013] WASCA 236
SWD v The State of Western Australia [2012] WASCA 76
The State of Western Australia v Prince [2011] WASCA 22
Truscott v The State of Western Australia [2007] WASCA 62
VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1
Wilson v The State of Western Australia [2010] WASCA 82
REASONS OF THE COURT: This is an application for leave to appeal in respect of a total effective sentence of 12 years' imprisonment with eligibility for parole imposed upon the appellant for various sexual offences against two young girls. An extension of time is required because the appeal was filed more than eight months out of time. The delay, which the appellant concedes is gross, has been inadequately explained. Whether an extension of time should be granted will depend upon the merit of the appeal.
The appellant does not challenge any of the individual sentences which were imposed upon him. The sole ground of appeal alleges an infringement of both limbs of the totality principle.
The general principles upon which this appeal is decided are uncontroversial and were succinctly stated by McLure P and Owen JA in Wilson v The State of Western Australia [2010] WASCA 82 [2]. They do not require repetition.
Details of the sentence
The appellant was charged on an indictment presented in the District Court with seven counts of indecently dealing with a child under the age of 13 years, contrary to s 320(4) of the Criminal Code (WA), and six counts of sexually penetrating a child under the age of 13 years, contrary to s 320(2) of the Criminal Code. Counts 1 to 9 concerned a girl, A, born on 23 January 1989. Counts 10 to 13 concerned another girl, H, who was born on 5 January 1996. The appellant was convicted after trial on 2 September 2013 as charged. On 5 September 2013, the learned sentencing judge imposed the total effective sentence we have already mentioned. The details of the individual sentences that were imposed and the orders for concurrency and cumulacy are set out in the annexure to these reasons.
Background
The appellant was born on 18 April 1943. He and his family commenced living in a small country town at about the time that he was appointed as a schoolteacher at that town's primary school.
The offences concerning A occurred between 29 January 1997 and 25 September 1998. She was, during that period, in years 3 and 4 at the primary school. The appellant was her teacher. The learned sentencing judge found that the charges for which the appellant was convicted (including the charges of sexual penetration) were representative of his conduct towards A.
Counts 1 to 4 were offences of indecent dealing. In count 1, on an unknown date, but between the dates specified in the previous paragraph, A went inside a big cement pipe in the school's playground. No other child was present. The appellant rubbed his hand on A's vagina on the outside of her shorts for a short period of time. The appellant told her to keep what had happened a secret.
In count 2, on another occasion A was washing her hands in the girls' toilet. The appellant approached her and rubbed her vagina over the outside of her shorts.
In count 3, on a further occasion A was sitting at her desk in class. There were other students in the room at the time. The appellant squatted down beside her, on the pretence of checking her work. He put his hand between her legs underneath the desk and rubbed her vagina over the outside of her shorts.
In count 4, on yet another occasion A was asked to come into the classroom by the appellant and told to sit down. When she did so, the appellant approached her, spread her legs and put one hand beneath her underwear and rubbed her vagina. A tried to pull away, but the appellant held her by her shoulder. When he was finished, he told her that she was a good girl and that she should not tell anyone about what had happened.
Counts 5 and 6 were offences of sexual penetration. In count 5, A was told by the appellant to come into the classroom. Eventually she stood in front of the appellant, who, while she was standing, put his hand down her pants and inserted one of his fingers into her vagina, causing her pain. When A tried to pull away, the appellant told her to relax. When he had finished, he kissed her on the cheek.
Count 6 occurred after A suffered a blood nose in the school playground. The appellant told her to come inside to get cleaned up. A followed him into a classroom. He gave her some tissues for the blood nose. The appellant then told her to take her shirt off so that it would not get blood on it. A complied with this request. The appellant then undid his trousers and placed the victim's hand over his penis on top of his underpants. He then got her to lie on the floor, by which point the complainant was crying. He then inserted a finger into her vagina. As he did this, he masturbated to the point where he ejaculated over her. A was obviously distressed by what had occurred.
Count 7 occurred on an occasion when A was playing basketball. The appellant requested her to come with him to a secluded part of the school grounds. There he exposed his penis and started rubbing it. The appellant asked the victim to kiss his penis, but she refused. At this point, the victim began to walk off, but the appellant grabbed her by the hand and told her that she had been 'a really bad girl' and that he would tell her mother. The complainant pleaded with him not to do this and was crying. Eventually the appellant let go of her hand, enabling her to walk away.
Counts 8 and 9 were further offences of sexual penetration. On those occasions, the appellant penetrated A's vagina with his penis. These were not the only times the appellant engaged in sexual intercourse with the victim. Count 8 occurred in the pre‑primary room at the school. The appellant told the victim to lie down on the floor at the back of the room where there were soft mats. She complied with his request. The appellant took off her pants and underwear. By this stage, she was crying. The appellant told A to be quiet and 'to stop being a baby'. He then penetrated her vagina with his penis, which was extremely painful for her. The appellant told her that 'it only hurt the first time'. As a result of what had occurred, the victim felt physically ill and went to the toilets. There she discovered blood on her underpants.
Count 9 occurred in a classroom. The appellant positioned A on a desk. She screamed in response. The appellant put his hand over her mouth and told her to be 'a big girl' and that 'this was what big girls did'. He then penetrated her vagina with his penis. The appellant told the victim that she needed to keep being a good girl and to keep what had occurred a secret because 'if anyone found out they wouldn't love her any more' and that she would not have any friends.
The offending against A continued until she transferred to another primary school. At about this time, the appellant ceased working as a teacher. In fact, in December 1998 he was dismissed on grounds unconnected with his offending.
We now turn to the offences committed against H, who is the appellant's granddaughter. As with A, these were representative offences.
In 2000, H came to live with the appellant and his wife after her parents separated. She was, at that time, 4 years old. The appellant began sexually abusing her from that time. The abuse continued for the next 3 years. During this period, the appellant was helping to run a roadhouse and was doing some work at the local bowling club.
Sometimes the appellant told her that 'every granddaughter did these things for their grandfather'. Sexual behaviour would occur on the pretence of playing games and would end with the complainant being rewarded with a chocolate covered sweet.
The facts with respect to count 10 are as follows. At the time, the appellant was doing some work at the bowling club. He asked H to hop into the back of his van to play. The appellant got into the back of the van and laid down. After asking her to tickle him, the appellant pulled his pants down and moved H's hands up and down his penis to the point of ejaculation.
Counts 11, 12 and 13 were committed in the appellant's bedroom in the one incident. The appellant laid on his bed without trousers or underwear. He asked H to play with him and to take her pants off. She did as she was told. The appellant then had her move her hands up and down his penis. H told the appellant that she did not like it, to which the appellant responded to the effect that this is what grandchildren 'did' (count 11). After getting H to masturbate him, the appellant told her to suck his penis, which she did (count 12). The appellant then said to the victim that he wanted to show her how to have sex. He said that it was 'like a puzzle' in that he had to try to get the pieces to fit together. The appellant laid H on her back, got on top of her and inserted his penis into her vagina (count 13). H told him that it hurt. As A had testified, the appellant said to H words to the effect that 'it usually hurts the first time'.
The appellant's abuse of H ceased on an occasion in 2002. The appellant was in his van with H when he asked her to play with him. By this time, H knew what the appellant was doing to her. She refused to play with him, saying, 'no, I don't want to do this anymore'.
Neither of the victims told anyone at the time what the appellant had done. The appellant's conduct did not emerge until some years later.
In March 2012, H recorded a telephone conversation between the appellant and herself. The appellant said that he had touched her 'below the waist', but only 'when [she] asked [him] to'. H then made a formal complaint to the police. The police subsequently located a report in respect of A which had not been investigated. A was contacted and she disclosed the offending against her.
The appellant was interviewed by police in relation to the complaints. He denied any wrongdoing. In May 2012 he was charged.
During his trial, the appellant showed no remorse for what had occurred.
The appellant's antecedents
At the date of sentence, the appellant was 70 years of age. He was described by the learned sentencing judge as having 'no criminal record of significance'. He is married and has three adult children and a number of grandchildren. After he ceased work as a teacher, he was constantly employed in a number of positions. He was actively involved in community activities in the country town in which he resided, and references provided to the primary court speak highly of his contribution to the community and his personal qualities. In his evidence, the appellant said that he had suffered an injury to his ankle for which he took three months' sick leave in 1997. No other evidence was adduced at trial or in the sentencing proceedings to show that he was in ill health having regard to his age.
The victim impact statements of A and H
The adverse effect of the appellant's offending was eloquently described by each of the complainants in their respective victim impact statements. Each of the victims has been badly affected by the appellant's offending, the consequences of which are ongoing. Unsurprisingly, each has had to deal with low self‑esteem and difficulties in their personal relationships resulting from the abuse.
The sentencing remarks
The learned sentencing judge found that the appellant's offending was aggravated by reason that the offences constituted a breach of trust. In the case of A, the appellant was the victim's teacher and, in the case of H, he was her grandfather. His Honour found that the victims were particularly vulnerable to exploitation and abuse.
In respect of A, his Honour found that the appellant overbore her, mentally and physically, using his physical size, his position of authority and forceful persistence. He used threats and he ignored the victim's attempts to repel his sexual advances. His Honour also found that the appellant put his own sexual gratification ahead of all other considerations, including the obvious physical pain caused to her by his acts of sexual penetration.
In respect of H, his Honour found, as an aggravating feature, that the appellant offended over a prolonged period, beginning when she was in kindergarten. His Honour also found that the appellant exploited her young age by telling her that sexual activity between grandfathers and granddaughters was normal.
In relation to both complainants, his Honour described the offending, particularly the offences of sexual penetration, as 'exceptionally serious'. He characterised the offences against each victim as being at the upper end of the range of seriousness.
As for mitigating factors, his Honour acknowledged the appellant's antecedents, including his age. The learned sentencing judge referred to the Australian Life Tables 2009‑2011 published by the Australian Bureau of Statistics in November 2012, which indicated that at age 70 the appellant had a life expectancy of 15.5 years. He noted that the appellant was in 'general good health'.
His Honour paid express regard to both limbs of the totality principle. He noted that the appellant's offending was not a single course of behaviour over a period of time, but consisted of two courses of behaviour separated in time by at least a year and committed in different circumstances.
He emphasised general deterrence as being a matter of 'high importance' but considered personal deterrence as being of 'limited significance in this case'.
The appellant's submissions
The appellant takes no issue with the individual sentences, the learned sentencing judge's characterisation of the seriousness of the offence or the aggravating and mitigating factors identified in the sentencing reasons. The gravamen of the appellant's argument is that, having regard to his personal circumstances, in particular the appellant's age at the time of sentencing and his claimed ill health, the total effective sentence infringed both limbs of the totality principle.
The totality principle
An accepted statement of the totality principle as it applies in this State was made by McLure JA (as her Honour then was) in Roffey v The State of Western Australia [2007] WASCA 246 in these terms:
The appellant relies on the totality principle which comprises two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offender personally: Woods v The Queen (1994) 14 WAR 341.
The second limb is that the court should not impose a 'crushing' sentence. The word crushing in this context connotes the destruction of any reasonable expectation of a useful life after release: Martino v The State of Western Australia [2006] WASCA 78 [16]. An aggregate sentence may be inappropriately long under the first limb even if it cannot be described as crushing: Jarvis v The Queen (1998) 20 WAR 201, 216 (Anderson J).
The practical effect of the totality principle is ordinarily to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences: R v Holder [1983] 3 NSWLR 245, 260 (Street CJ). A rationale for the totality principle is that there is assumed rehabilitation and reduced demand for retribution after the initial sentences have been served. Where the principle of totality comes into effect, it is of little importance how the ultimate aggregate is made up: R v Holder (260) [24] ‑ [26].
Disposition of the ground of appeal
In support of the allegation that the total effective sentence of 12 years' imprisonment breached the first limb of the totality principle, the appellant relied, in large part, upon a comparison of the present case with other cases which were said to be comparable. The cases cited by the appellant were Pendleton v The Queen [2002] WASCA 4; FGC v The State of Western Australia [2008] WASCA 47; The State of Western Australia v Prince [2011] WASCA 22; GGM v The State of Western Australia [No 2] [2011] WASCA 259; EPD v The State of Western Australia [2011] WASCA 264; RFS v The State of Western Australia [2012] WASCA 58; MMC v The State of Western Australia [2012] WASCA 187 and Do v The State of Western Australia [2013] WASCA 218.
To these may be added the following cases involving serious sexual offending against children which have some of the features of the present case: VIM v The State of Western Australia [2005] WASCA 233; (2005) 31 WAR 1; PDS v The State of Western Australia [2006] WASCA 20; GHS v The State of Western Australia [2006] WASCA 42; Truscott v The State of Western Australia [2007] WASCA 62; BPR v The State of Western Australia[No 2] [2007] WASCA 200; MPD v The State of Western Australia [2008] WASCA 57; KC v The State of Western Australia [2008] WASCA 216; KMB v The State of Western Australia [2010] WASCA 212; RDC v The State of Western Australia [2012] WASCA 16; MAS v The State of Western Australia [2012] WASCA 36; CJF v The State of Western Australia [2012] WASCA 69; SWD v The State of Western Australia [2012] WASCA 76; JWD v The State of Western Australia [2013] WASCA 233; SG v The State of Western Australia [2013] WASCA 236; Downie v The State of Western Australia [2013] WASCA 244; GHK v The State of Western Australia [2014] WASCA 19 and ARK v The State of Western Australia [2014] WASCA 45.
Comparable cases are a factor, but not the only factor relevant to the question of whether the first limb of the totality principle has been infringed. As has been said by this court on many occasions, the purpose of examining comparable cases is to ensure broad consistency. However, each case must be decided upon its own particular facts and circumstances. Rarely, if ever, are any two cases the same. It must also be remembered that the range of sentences imposed in other cases does not dictate the range of a sound sentencing discretion in a particular case. Specifically, the outer or lower limits of that range do not dictate the mark beyond which a sentencer cannot intrude. In cases of sexual abuse of children there is no sentencing tariff.
We have reread all of the cases cited by the appellant. It is unnecessary to summarise them. It is sufficient to say that they do not point to the total effective sentence in this case infringing the first limb of the totality principle. We make the following comments with respect to the cases cited by the appellant:
(a)The circumstances of the offending in Do and EPD were less serious than the present offending.
(b)As the appellant acknowledged in his written submissions, there has been a firming up of sentences in relation to sexual offences committed against children since Pendleton. Accordingly, its utility as a comparator is limited.
(c)Neither GGM nor RFS involved allegations of penile penetration of the victims.
(d)RFS and MMC involved sentences imposed after pleas of guilty.
(e)The offender in FGC was considerably older (77 years) at the time of sentencing than the offender in this appeal.
(f)Prince involved one complainant.
The sentencing principles relating to sexual offences against children are well known. Such offences are regarded as being of the utmost seriousness, particularly where the offending occurs in the context of an abuse of trust. General deterrence is the dominant sentencing consideration, with the aim of protecting vulnerable children. Accordingly, less weight can be given to subjective mitigating factors.
We will not repeat what the learned sentencing judge said about the seriousness of the offending in the present case. We respectfully agree with his assessment of it. It must be noted:
(a)In respect of each complainant, the offending occurred over a substantial period of time and involved a breach of trust.
(b)At the time of the offending, each complainant was very young and extremely vulnerable. The appellant deliberately exploited their vulnerability, in total disregard for their welfare.
(c)In the case of A, he groomed the complainant. Some of the offending in respect of her involved physical force, threats and was done despite the victim's protests.
(d)In respect of H, the appellant sought to normalise the abuse, taking advantage of his position as the victim's grandfather and her very tender age.
(e)The appellant's offending has had, and will continue to have, adverse consequences for the victims.
The mitigating factors were few and were not significant, having regard to the need for general deterrence. The appellant could not call into aid such mitigatory matters as pleas of guilty or remorse, nor was there any evidence of rehabilitation.
Having regard to all of the circumstances of the case, we can see no reasonable basis upon which to conclude that there has been an infringement of the first limb of the totality principle. In our opinion, the total effective sentence bore a proper relationship to the appellant's overall criminality, viewed in its entirety, and having regard to all of the circumstances including those referable to the appellant personally.
We now turn to the argument in respect of the second limb of the totality principle. It may be accepted that advanced age is a relevant consideration in determining whether a sentence will be crushing. So too is an offender's state of health. However, the extent to which leniency can be given for either factor depends on all of the facts and circumstances of the particular case: see HFM v The State of Western Australia [2012] WASCA 217 [51] ‑ [53].
The appellant's health was not a matter of significance in the present case. We have already noted that the learned sentencing judge described the appellant as being in general good health. That finding has not been challenged in this appeal. During the trial, there was evidence that the appellant had suffered an ankle injury, but there is nothing to indicate that the effects of that injury could not be properly treated in prison, nor has it been alleged, let alone demonstrated, that the injury would make imprisonment more onerous for the appellant than would ordinarily be the case.
As to the appellant's age, the appellant will be 80 when he becomes eligible for parole and will be 82 upon the completion of the total effective sentence. It must be accepted that the appellant may well die in gaol or that a very significant proportion of his remaining life will be spent in custody. As distressing as these prospects must be for the appellant, because of the very serious nature of his offending, including the impact that the offending has had and will continue to have on the victims, and the need for general deterrence, the mitigation that could be given for advanced age was limited.
In our opinion, it is not reasonably arguable that either limb of the totality principle has been infringed. As the appeal is without merit, there is no point in granting an extension of time. The appeal must be dismissed.
Orders
The orders that we would make are:
1.The extension of time is refused.
2.The appeal is dismissed
Annexure
| Count | Offence | Maximum penalty | Sentence imposed |
| 1 | Criminal Code (WA) (CC) s 320(4): the appellant indecently dealt with A, by rubbing her vagina with his hand. | 10 years' imprisonment | 9 months' imprisonment, concurrent |
| 2 | CC s 320(4): the appellant indecently dealt with A, by rubbing her vagina with his hand. | 10 years' imprisonment | 9 months' imprisonment, concurrent |
| 3 | CC s 320(4): the appellant indecently dealt with A, by rubbing her vagina with his hand. | 10 years' imprisonment | 9 months' imprisonment, concurrent |
| 4 | CC s 320(4): the appellant indecently dealt with A, by rubbing her vagina with his hand. | 10 years' imprisonment | 12 months' imprisonment, cumulative |
| 5 | CC s 320(2): the appellant sexually penetrated A, by penetrating her vagina with his finger. | 20 years' imprisonment | 2 years' imprisonment, concurrent |
| 6 | CC s 320(2): the appellant sexually penetrated A, by penetrating her vagina with his finger. | 20 years' imprisonment | 3 years' imprisonment, concurrent |
| 7 | CC s 320(4): the appellant indecently dealt with A, by masturbating his penis in the presence of A. | 10 years' imprisonment | 12 months' imprisonment, concurrent |
| 8 | CC s 320(2): the appellant sexually penetrated A, by penetrating her vagina with his penis. | 20 years' imprisonment | 5 years' imprisonment, concurrent |
| 9 | CC s 320(2): the appellant sexually penetrated A, by penetrating her vagina with his penis. | 20 years' imprisonment | 5 years' imprisonment, head sentence |
| 10 | CC s 320(4): the appellant indecently dealt with H, by forcing her to masturbate his penis. | 10 years' imprisonment | 2 years' imprisonment, cumulative |
| 11 | CC s 320(4): the appellant indecently dealt with H, by forcing her to masturbate his penis. | 10 years' imprisonment | 2 years' imprisonment, concurrent |
| 12 | CC s 320(2): the appellant sexually penetrated H, by forcing her to perform fellatio on him. | 20 years' imprisonment | 3 years' imprisonment, concurrent |
| 13 | CC s 320(2): the appellant sexually penetrated H, by penetrating her vagina with his penis. | 20 years' imprisonment | 4 years' imprisonment, cumulative |
| Total effective sentence of 12 years' imprisonment, effective from 2 September 2013 with eligibility for parole. | |||
NB: While the certificate of final outcome of charge lists count 10 as sexual penetration, Staude DCJ referred to count 10 as an indecent dealing in his sentencing remarks, which accords with the offence in the indictment.
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