AJ v The State of Western Australia
[2016] WASCA 13
•18 JANUARY 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: AJ -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 13
CORAM: BUSS JA
MAZZA JA
MITCHELL J
HEARD: 18 NOVEMBER 2015
DELIVERED : 18 JANUARY 2016
FILE NO/S: CACR 24 of 2015
BETWEEN: AJ
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :FENBURY DCJ
File No :IND 1049 of 2014
Catchwords:
Criminal law - Appeal against sentence - Persistent sexual conduct with child under 16 - Manifest excess - Totality principle - Wholly cumulative sentences
Legislation:
Criminal Code (WA), s 321A
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr A L Troy
Respondent: Mr J McGrath SC
Solicitors:
Appellant: Putt Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
Cairns v The State of Western Australia [2015] WASCA 198
D v The State of Western Australia [2009] WASCA 155
Dickens v The Queen [2004] WASCA 179; (2004) 147 A Crim R 343
GHK v The State of Western Australia [2014] WASCA 19; (2014) 238 A Crim R 178
House v The King (1936) 55 CLR 499
JWD v The State of Western Australia [2013] WASCA 233
KMB v The State of Western Australia [2010] WASCA 212
R v Pham [2015] HCA 39
Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319
Trompler v The State of Western Australia [2008] WASCA 265
BUSS JA: I agree with Mitchell J.
MAZZA JA: I agree with Mitchell J.
MITCHELL J:
Summary
On 23 January 2015, the appellant was convicted, on his plea of guilty, of two counts of persistently engaging in sexual conduct with a child under the age of 16 years. The separate counts related to the appellant's two daughters, to whom I shall refer as A and M. The offending against A took place between 1 January 2007 and 31 December 2012, when A was 9 ‑ 15 years old. The offending against M took place between 1 January 2011 and 30 June 2014, when M was 7 ‑ 11 years old. The maximum penalty for each offence was 20 years' imprisonment.
The offending conduct involved the appellant regularly engaging in non‑penetrative sexual acts with his two daughters on many occasions over a total period of approximately 7½ years.
The sentencing judge sentenced the appellant to 5 years' imprisonment for the offence involving A and 4 years' imprisonment for the offence involving M. He ordered that the sentences be served cumulatively upon each other, resulting in a total effective sentence of 9 years' imprisonment.
The appellant appeals against the sentences imposed for these offences.
The first ground of appeal alleges that the sentencing judge erred 'in equating the seriousness of a prolonged period of sexual offending, confined to touching victims, with a shorter period of offending involving sexual penetration'. Leave to appeal on this ground should be refused, as it is clear that the sentencing judge did not make that finding.
The second and third grounds of appeal allege that the sentences imposed for each individual offence were manifestly excessive in the circumstances. Leave to appeal on these grounds should be refused on the basis that the sentences imposed were well within the range of sound discretionary judgment and it cannot arguably be inferred that the sentencing judge made any error of principle in the exercise of that discretion.
The final ground of appeal, on which leave to appeal has already been granted, alleges that the total effective sentence of 9 years' imprisonment infringes the first limb of the totality principle. I would dismiss this ground on the basis that the sentence imposed does not fail to bear a proper relationship to the overall criminality involved in the two offences, having regard to all the circumstances of the case. It cannot be inferred that the sentencing judge failed to properly apply the first limb of the totality principle in fixing the total effective sentence in this case.
It follows that the appeal must be dismissed. My reasons for reaching these conclusions follow.
Circumstances of offending against A
The appellant's offending against A involved many occasions of the appellant placing his hands down the front of her pants and rubbing her vagina. This indecent dealing was accompanied by the appellant threatening A that she would be in trouble if she did not comply, or what A referred to as 'him making bargains with me and saying if I want this then he has to have this many seconds'. A described the incidents happening 'heaps of times'. In his interview with police the appellant described the touching of A's breasts and vagina as occurring 'weekly'. He also accepted his pattern of 'bargaining' with A by agreeing to her requests if he could 'have a feel'.
A recalled a number of specific instances of sexual abuse by the appellant.
On one occasion, when she was about 10 years of age, the appellant took A to his bedroom after she had taken a shower and told her to remove her clothing. A did this because she was scared. The appellant made A lie down on his bed. He touched her all over her naked body and kissed her on the chest and genitals while rubbing her vagina.
On another occasion, at around the same time, the appellant entered the room where A and her sister were sleeping. He placed his hand under the covers and A's pyjama pants and rubbed her vagina.
A third example was a demand the appellant made during A's 12th birthday party, when the appellant said 'you owe me for this party, you have to let me touch you' and 'you have to let me do this to you otherwise you're going to be in trouble'. A few days after the party, the appellant placed his hand down the front of A's pants and rubbed her vagina.
A recalled, on another occasion, being alone in the family home with the appellant, when he placed his hand down her pants and began to count aloud. When A tried to move the appellant told her 'no, no, you've got this many more seconds left'.
It appears from the statements made by A and the appellant that these incidents occurred so frequently and regularly that neither was able to remember many individual incidents separately from the others.
Circumstances of offending against M
The appellant repeatedly touched M on the buttocks, breast and vagina.
On one occasion, the appellant told M to go into his bedroom and told her to undress. M complied because she was scared of the appellant. The appellant also undressed and lay on top of M, moving up and down so his genitals made contact with her vagina. The appellant told M not to tell anyone because, if she did, he would get into trouble.
There were also occasions when the appellant kissed or stimulated M's vagina while they were naked, and at least one occasion where M touched the appellant's penis. The frequency of the abuse was similar to that experienced by A. Again, the abuse was so frequent that neither the appellant nor M could recall many separate incidents.
Discovery of offending
In September 2013, A tried to inform her mother of the appellant's offending conduct. Confronted by his wife, the appellant denied the offending. No further action was taken at this time.
A then spoke to her grandmother about the offending conduct on Monday, 30 June 2014. A's grandmother discussed the allegation with A's mother on 1 July 2014. On the evening of the following day, Wednesday, 2 July 2014, A's grandmother informed the appellant's brother that they were going to the police. Family members attended a police station on Thursday, 3 July 2014 and reported the offending.
On 4 July 2014, the appellant's solicitor contacted the police to arrange for the appellant to voluntarily attend the police station and participate in an interview, which took place on Monday, 7 July 2014. The appellant confessed to his offending against A, but denied offending against M. He indicated that he was aware that A had disclosed the offending to family members and 'all the family know now'.
Two days later, on 9 July 2014, the appellant again attended a police interview and confessed to his offending against M.
The appellant was arrested on 10 July 2014, and again interviewed by police officers on that day. He was asked further questions about his offending against A and M, and made further admissions about his offending.
Sentencing judge's approach
The sentencing judge indicated that the appellant was entitled to a 25% reduction in his sentence for pleading guilty at the earliest possible opportunity. He noted:
[Y]ou made some voluntary disclosure to police in the form of voluntary confession of unreported offending, amongst others. And that should also attract a discount.
The sentencing judge then adopted the statement of facts which had been read to him by the prosecutor. He summarised the offending conduct in the following terms:
The conduct involved repetitive generally non‑penetrative touching, rubbing of the complainant [A's] vagina with some - you concede some cunnilingus‑like features on some of the behaviour; rubbing of the breasts, squeezing of the buttocks, kissing of the vagina.
With respect to [M], similar - the same. Also you apparently procured her to touch your penis occasionally, simulated sexual intercourse when you lay on her when both of you were naked, including according to you some oral sex non‑specific.
The conduct was regular and frequent. I think, for example, [M] said more than 10 times a month. There was no clear allegation of penetration. Nevertheless, the behaviour is very serious and damaging. And if there was penetration, the maximum penalty would still … be unchanged.
The sentencing judge referred to the long term damage which would result from the offending which demonstrated 'selfishness of the highest degree' in the 'theft of your daughters' childhood innocence for your own sexual gratification'. He described the aggravating features as being:
the young age of each of the girls; the length of time they had to put up with this behaviour, six years and three and a half years respectively, the multiplicity of the offending over those years; as I say, the incalculable damage done to two innocent, young girls; the grossest breach of trust. They were lineal relatives.
The sentencing judge noted that the appellant was very remorseful, and had a low risk of reoffending. He noted the difficulties which the appellant had in his own life - loss of family, employment and accommodation - since his offending was discovered. He observed that the appellant had no previous criminal convictions. The sentencing judge noted difficulties which the appellant had in his childhood, and physical difficulties which the appellant suffered as a result of his service in the Australian Defence Force. The sentencing judge said, in effect, that he could not place a lot of weight on what was said in mitigation other than the appellant's pleas of guilty and assistance he provided to investigators.
The sentencing judge referred to references which the appellant's counsel tendered, as well as letters of apology which the appellant had written to his family. The sentencing judge then said:
So I've read all of those materials and I give them the best weight that I can in the circumstances. So as I said, in relation to the - there is a discount but the law says that it can't be more than 25 per cent, that is, a discount for the plea of guilty and I give that discount to its fullest [extent].
I also give a discount for the facilitation of the prosecution, that is, the disclosures that you made unsought and the material that you revealed and the genuine remorse that I accept that you feel about your behaviour.
Having been through that exercise, I've also had a second look at all of this material and thereby and thereafter come to the following sentences which I believe are appropriate in the case.
The sentencing judge then imposed the sentences from which the appellant appeals.
Grounds of appeal
The appellant seeks to appeal on the following grounds:
1.The learned sentencing Judge erred in equating the seriousness of a prolonged period of sexual offending confined to touching the victims, with a shorter period of offending involving sexual penetration.
2.The learned sentencing Judge erred in passing a sentence on count (1) that was manifestly excessive, in circumstances where the appellant disclosed his offending to the authorities before a formal complaint had been made and entered a fast track guilty plea.
3.The learned sentencing Judge erred in passing a sentence on count (2) that was manifestly excessive, in circumstances where the appellant sought to voluntarily disclose details of his offending to the authorities prior to the complainant's interview with the Child Assessment and Interview Unit, and entered a fast track guilty plea.
4.The learned sentencing Judge erred in imposing a total effective sentence that infringed the first limb of the totality principle, having regard to the overall criminality involved in the offences, viewed in their entirety, and all the circumstances of the case including those referable to the appellant.
Ground 1: equating penetrative with non-penetrative conduct
The appellant submits that the sentencing judge erred by equating sexual penetration with conduct which, if charged individually as opposed to pursuant to s 321A, would be particularised as indecent dealing. I am not satisfied that the sentencing judge made such a finding in sentencing the appellant.
The only comment in relation to this issue which the sentencing judge made in his reasons for sentence was:
The conduct was regular and frequent. I think, for example, [M] said more than 10 times a month. There was no clear allegation of penetration. Nevertheless, the behaviour is very serious and damaging. And if there was penetration, the maximum penalty would still … be unchanged.
This passage notes that the appellant's behaviour was serious and damaging despite the absence of penetration, and observes that the maximum penalty would have been unchanged even if penetration were established. Neither observation involves any error, or equating penetrative and non-penetrative offending.
Further, when the judge's sentencing remarks are read as a whole, it is apparent that he sentenced the appellant on the basis of the seriousness of the offending disclosed by the circumstances of the particular case. He did not assess the seriousness of the appellant's offending by comparison with a hypothetical case of offending involving penetrative sex.
The appellant's argument in relation to this ground focusses on an exchange between the sentencing judge and prosecutor during the course of the prosecutor's sentencing submissions. Those comments do not form part of the sentencing judge's reasons.[1] It is generally wrong to draw conclusions about the findings on which a judge bases his or her decision from questions asked of counsel during the course of submissions. Questions from the bench during the course of submissions may or may not reflect a judge's provisional thinking. Sometimes, the judge is testing counsel's argument with contrary propositions. In other cases questions may simply seek further information on a topic. Where a question is premised on a misunderstanding of some point of law or fact, the misunderstanding may be corrected by counsel's answers or the judge's own reflection before passing sentence.
[1] AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438 [16].
In the present case, the sentencing judge did no more than ask questions of the prosecutor to identify the prosecutor's position, and seek material showing sentences imposed in comparable cases. He adjourned sentencing from 10.57 am to 2.37 pm to consider the matter. Particularly in those circumstances, a search for a premise underlying the questions posed to the prosecutor by the sentencing judge does not inform the inquiry as to the findings on which the sentence was based.
As I am not satisfied that the sentencing judge made the finding referred to in this ground of appeal, it is unnecessary to consider whether such a finding would have involved error. I do not consider this ground to be arguable, and would refuse leave to appeal on ground 1.
Grounds 2 and 3: manifest excess
It is convenient to deal together with grounds 2 and 3, which allege that each of the sentences imposed were manifestly excessive.
General principles
An allegation of manifest excess is an allegation of implied error. Such an error may be inferred where, although it is not possible to discover the exact nature of the error, the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred.[2]
[2] House v The King (1936) 55 CLR 499, 505.
Appellate intervention on the ground of manifest excess or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.[3]
[3] R v Pham [2015] HCA 39 [28].
To determine if a sentence is manifestly excessive it is necessary to view it in light of the maximum penalty prescribed by law for the offence, the standards of sentencing customarily observed for that type of offence, the level of seriousness of the circumstances of the offending and the personal circumstances of the offender.[4]
Maximum penalty
[4] Cairns v The State of Western Australia [2015] WASCA 198 [25].
The maximum penalty for an offence against s 321A of the Criminal Code (WA) is 20 years' imprisonment.
Customary sentencing standards
Counsel for the appellant focused his submissions on one appellate decision dealing with an offence against s 321A of the Code: Dickens v The Queen.[5] That case concerned two sentences imposed under s 321A of the Code when the offence created by that provision was described as 'having a sexual relationship with a child'.
[5] Dickens v The Queen [2004] WASCA 179; (2004) 147 A Crim R 343.
Dickens was charged with two counts of having a sexual relationship with a child. The first count related to offending against his stepdaughter from February 1998, when she was 10 years old and Dickens was 34 years old, to December 2002. The offending included regular sexual intercourse, which resulted in the victim becoming pregnant at age 13 and having an abortion. The second count related to conduct including penetrative sex with a 15‑year‑old girl who occasionally stayed in the same house as Dickens. That offending occurred over a seven‑month period in 1998 and 1999. Dickens entered a fast‑track plea of guilty. He was sentenced to 5 years 4 months' imprisonment in respect of the offending against his stepdaughter and 2 years 8 months' imprisonment in respect of the offending against the 15‑year‑old.
Dickens did not appeal against the individual sentences imposed, but successfully challenged the accumulation of the sentences on totality grounds. I shall consider this aspect of Dickens when dealing with ground 4.
I do not consider Dickens to support the appellant's position in relation to manifest excess. A single case or indeed a small number of cases cannot establish the range of sentences customarily imposed nor the appropriate range.[6] That is particularly so where the individual sentences imposed at first instance are not challenged on appeal.
[6] Trompler v The State of Western Australia [2008] WASCA 265 [37].
In Cairns v The State of Western Australia,[7] this court refused the offender leave to appeal against a sentence of 5 years' imprisonment in respect of a single count under s 321A of the Code. Cairns was 56 ‑ 57 years old and his victim 14 ‑ 15 years old over the 22 months during which the offence occurred. Cairns was a pastor who met his victim through involvement in a religious organisation. The offending generally involved non‑penetrative sex, although there were instances of digital penetration of the victim's vagina. Cairns was given a 25% discount for his plea of guilty, was remorseful and was of prior good character. Leave was refused on the basis that the application for leave to appeal had no reasonable prospect of success.
[7] Cairns v The State of Western Australia [2015] WASCA 198.
Cairns has some comparable features to the present case. In some ways, the offending may be thought more serious in that digital penetration was involved. In other respects, the offending in Cairns may be thought to be less serious, as the victim was older when the offending began, the period of offending was shorter and the gross breach of trust involved in a father sexually abusing his own daughter was absent.
In D v The State of Western Australia,[8] a physical education teacher and soccer coach was convicted of one offence against s 321A of the Code with a 16‑year‑old girl over a 5‑month period when he was in his early thirties. The offending conduct mainly involved penile penetration of the victim's vagina. A sentence of 5 years' imprisonment was held to be manifestly excessive and reduced to 3 years 6 months on appeal. D was also charged with sexual offences against another girl. The s 321A offence was much less serious than the present case, as the victim was an older willing participant, the duration of the offending was much shorter and there was no family relationship between offender and victim.
[8] D v The State of Western Australia [2009] WASCA 155.
In KMB v The State of Western Australia,[9] the offender was convicted of a number of sexual offences against his stepdaughter, including one offence under s 321A committed between January 1997 and June 2005 when the victim was between 8 and 16 years old and the offender was between 32 and 40 years old. The offending involved regular sexual intercourse, and at the time the victim understood KMB to be her biological father. The victim became pregnant at age 12, and had an abortion. KMB was convicted after trial, and sentenced to a total effective sentence of 14 years 6 months' imprisonment. He was sentenced to 10 years 6 months' imprisonment for the offence against s 321A of the Code, and his appeal against sentence included a ground alleging that sentence to be manifestly excessive. The appeal against that sentence was dismissed. While the offending was more serious than the present case, the sentence imposed for the individual offence against s 321A of the Code was over double that imposed on the appellant.
[9] KMB v The State of Western Australia [2010] WASCA 212.
The sentences imposed in the cases to which I have referred suggest that the sentences imposed in the present case were well within the range of sound exercise of the judge's sentencing discretion.
The appellant cited a number of cases dealing with individual counts of indecent dealing with a child. In my view, those cases are not comparable to the present. The criminal conduct for which the appellant has been convicted and must be punished involves engaging in sexual conduct with each victim on many occasions over a period of years. Conviction of a single indecent dealing offence or a number of individual offences is not comparable. Even when individual offences are charged as representative counts, the offender is only to be sentenced and punished for the counts on the indictment, and the representative nature of the charge prevents the offender finding mitigation on the basis that the offending conduct was isolated and uncharacteristic.[10] By contrast, under s 321A the offender is to be sentenced and punished for the whole course of criminal conduct. The essence of the criminality involved in the offence created by s 321A is the persistent and ongoing nature of the sexual conduct with a child. As I have mentioned, the maximum penalty for an offence contrary to s 321A is 20 years' imprisonment. By contrast, the maximum sentence for indecently dealing with a child under the age of 13 years, contrary to s 320(4) of the Code, is 10 years' imprisonment. The maximum penalty for indecently dealing with a child of or over the age of 13 years and under the age of 16 years, contrary to s 321(4) of the Code, is, relevantly, 7 years or where the child is under the care, supervision or authority of the offender, 10 years.
[10] KMB [120]; GHK v The State of Western Australia [2014] WASCA 19; (2014) 238 A Crim R 178 [20].
In considering the customary approach to sentencing for offences of this kind, it is also relevant to bear in mind a number of general principles (which were uncontroversial in this case).
Primary sentencing considerations for sexual offences against children are punishment of the offender, specific and general deterrence and the protection of vulnerable children.[11] In cases of intra‑familial sexual abuse, matters personal to the offender are of less mitigatory weight than might otherwise be the case. The fact that an offender is otherwise of good character has only little weight because the offences are of a kind that, until revealed, generally do not impact on other people or upon their perception of the offender.[12]
[11] KMB [89].
[12] KMB [90].
There is no 'tariff' for the offence prescribed by s 321A (or for sex offences generally) because of the great variation that is possible in the circumstances of the offending and the offenders. The sentence to be imposed in a particular case depends on its individual facts and circumstances, having regard to the maximum penalty.[13]
[13] KMB [91].
However, sexual offending against children will usually result in a custodial sentence to be immediately served because the primary sentencing considerations are punishment of the offender, and specific and general deterrence.[14] Both parties accepted that a sentence of imprisonment to be immediately served was the only appropriate sentencing option.
Seriousness of appellant's offending
[14] JWD v The State of Western Australia [2013] WASCA 233 [42].
The appellant's offences are very serious examples of offending against s 321A of the Code. Each offence was committed over a significant time (6 years in the case of A and 3½ years in the case of M). The sexual conduct occurred frequently and on regular occasions during that period. Although the frequency of that conduct means that neither the appellant nor his victims can recall many specific incidents, it is clear from their accounts that the appellant's offending involved many individual incidents of sexual conduct.
The age of the appellant's victims when the offending began (A was 9 years old and M 7 years old) is also a significant aggravating feature of the appellant's offending. The fact that the appellant was the victim's father, to whom they were entitled to look for protection from harm, is also an aggravating factor. The offending involved a gross breach of trust and, in the case of A, involved demands for sex as a condition for allowing her to engage in ordinary childhood activities. Also, some of the offending against A involved threats. There was no contest at the sentencing hearing as to the damaging effect which the offending must have had on the appellant's victims.
While the offending in each case was a very serious example of offending against s 321A of the Code, it was not in the worst category of offending against that section. The aggravating feature of penetrative sex was not established in the present case. The appellant's offending did not involve features of some of the cases to which I have referred such as pregnancy.
Personal circumstances of the appellant
The appellant did not have any prior convictions, had stable employment and was regarded as generally of good character by those who knew him. However, an assessment of his character must also take account of the fact that he regularly and persistently engaged in serious sexual offending against his children between 2007 and 2014.
The sentencing judge found that the appellant had pleaded guilty at the first reasonable opportunity and properly allowed a 25% discount under s 9AA of the Sentencing Act 1995 (WA).
The appellant also relies on his disclosure of the offending to the police before a formal complaint had been made. The sentencing judge found that the appellant voluntarily confessed unreported offending to the police, and said that this should attract a discount in the sentence to be imposed. However, the discount which could properly be applied was limited by the fact that the appellant made the disclosures to police only after he knew that many family members were aware of his offending and could reasonably have anticipated (if he did not know) that the matter would be reported to the police.
It is relevant to note that the appellant denied the offending when confronted by his wife in September 2013. It is also relevant to note that the appellant initially denied offending against M when asked by police on 7 July 2014, although he admitted that offending two days later.
An offender who confesses to a crime is generally to be treated more leniently than one who does not. That is not to say that all admissions of guilt have the same value. The disclosure to the authorities of otherwise unknown offences can have significant weight. One important feature of disclosure is that it may evidence a genuine acceptance of responsibility and contrition on the part of the offender.[15] In the present case the appellant's admissions to police did reflect contrition and an acceptance of responsibility for his offending. However, the appellant was not in the same category as an offender who discloses an offence which is undiscovered, and might never have been discovered without the offender choosing to confess.
Conclusion as to manifest excess
[15] JWD [45].
Having regard to all of the above matters, it is clear that both sentences imposed on the appellant were well within the range of proper exercise of the sentencing discretion. The offences were both serious examples of offending against s 321A of the Code. The sentences were 25% or less of the maximum penalty, and were not out of step with sentences customarily imposed under that section. There was nothing in the appellant's personal circumstances which made the sentence inappropriate. I do not consider grounds 2 or 3 to be arguable, and would refuse leave to appeal on those grounds.
Ground 4: totality principle
The appellant's fourth ground of appeal alleges that the total effective sentence of 9 years' imprisonment infringes the first limb of the totality principle.
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the relevant offences, viewed in their entirety and after having regard to the circumstances of the case, including those circumstances referable to the offender personally. An alleged breach of the totality principle does not rely on any express error. Rather, the question is whether error can be inferred because the end result is not one that could have been reached in the proper exercise of sentencing discretion. This requires consideration of all relevant sentencing factors to determine whether the sentence imposed was open in the circumstances.[16]
[16] JWD [40] ‑ [41].
The appellant asserts that the decision to make the sentence for the offence involving M entirely cumulative on the sentence for the offence involving A produces a total effective sentence which fails to bear a proper relationship to the overall criminality involved in the commission of both offences.
I am unable to accept that submission, having regard to the features of the offending to which I have referred. As the respondent submitted, the offending in this case was very serious, prolonged and persistent and involved many acts of non-penetrative sexual abuse. The two offences related to different children. While there was some overlap in the time at which offences were committed against A and M, much of the offending against M occurred after the offending against A had concluded (when A left the family home). While the sentence may be regarded as high, it does not fail to bear a proper relationship with the very serious degree of criminality involved in the totality of the appellant's offending, having regard to all the circumstances of the case.
The appellant submitted that the sentencing judge did not pay express regard to the totality principle, and the absence of reference to the principle assists the court in drawing an inference that it was not applied. I do not accept that submission. The sentencing judge indicated that he had 'a second look through all of this material and thereby and thereafter come to the following sentences which I believe are appropriate in this case'. I do not accept the appellant's submission that the reference to the 'material' in this comment was merely to the appellant's letters of apology to his family. Rather, in this passage the sentencing judge is using a shorthand expression for the task described by Owen JA in Royer v The State of Western Australia:[17]
A phrase often used to describe the practical application of the totality principle is that the judge, having fixed terms for the individual offences, should stand back and 'take a last look' to ensure that the aggregate term properly measures the overall criminality involved and that it is not crushing. In my view this is an apt description of the process and is a prudent step that a judicial officer should take in finalising the task of sentencing for multiple offences.
[17] Royer v The State of Western Australia [2009] WASCA 139; (2009) 197 A Crim R 319 [37].
As I have indicated, the appellant's submissions were focused on the decision in Dickens, where the appeal against two sentences imposed for an offence against s 321A of the Code was allowed on totality grounds.
In that case a total effective sentence of 8 years' imprisonment was reduced to 6 years and 8 months on appeal. While the first offence in that case was more serious than the present, the second offence was for a much shorter period against an older child who was not related to the offender. Further, the second offence in Dickens was committed during the time period of the first offence.
In my view, these features distinguish Dickens from the present case. In any event, a single decision does not define the range of the proper exercise of the sentencing discretion.
I am not satisfied that the total sentence imposed can be regarded as unreasonable or plainly unjust so that error can be inferred. I would dismiss ground 4.
Orders
For the above reasons, I would refuse leave to appeal on grounds 1 ‑ 3 and dismiss the appeal.
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