Ali v The State of Western Australia
[2021] WASCA 144
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: ALI -v- THE STATE OF WESTERN AUSTRALIA [2021] WASCA 144
CORAM: MAZZA JA
MITCHELL JA
VAUGHAN JA
HEARD: 8 JUNE 2021
DELIVERED : 17 AUGUST 2021
FILE NO/S: CACR 171 of 2020
BETWEEN: ALI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: BOWDEN DCJ
File Number : IND 1234 OF 2020
Catchwords:
Criminal law - Appeal against conviction - Appellant convicted on his pleas of guilty of ten counts in an indictment - Where counts 1 - 8 charged offences of sexual penetration and indecent dealing with a de facto child - Where count 10 charged offence of having a sexual relationship with a child - Where sexual penetration and indecent dealing offences related to the same child and the same period of time as the sexual relationship offence - Whether miscarriage of justice occasioned by appellant's conviction of sexual penetration and indecent dealing offences as well as the sexual relationship offence - Whether judgment of acquittal should be substituted for sexual penetration and indecent dealing offences - Whether sentence imposed for sexual relationship offence should be varied - Relevant considerations in exercising discretion to vary sentence for another offence which took account of sentence imposed for offence of which appellant acquitted on appeal
Legislation:
Criminal Appeals Act 2004 (WA), s 30(3), s 30(5), s 30(6)
Criminal Code (WA), s 320, s 321, s 321A, s 329
Result:
Appeal allowed
Convictions for counts 1 - 8 set aside and judgments of acquittal substituted
Sentence for count 10 varied
Category: B
Representation:
Counsel:
| Appellant | : | A Robson |
| Respondent | : | A L Forrester SC |
Solicitors:
| Appellant | : | Legal Aid (WA) |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199
Gilmore v The Queen (1979) 1 A Crim R 416
Neal v The Queen (1982) 149 CLR 305
Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
Williams v The Queen [No 2] [1982] WAR 281
JUDGMENT OF THE COURT:
Background
On 6 November 2020, the appellant was convicted, on his pleas of guilty, of 10 counts on a single indictment. The offending related to the same victim, who was the appellant's de facto daughter.
Counts 1 - 8 charged the appellant with various offences against s 329(2) of the Criminal Code (WA) (sexual penetration of a de facto child under the age of 16 years) and s 329(4) of the Code (indecent dealing with a de facto child under the age of 16 years). These offences occurred in various date ranges between 8 March 1999 and 21 January 2003. Count 9 charged the appellant with deprivation of liberty contrary to s 333 of the Code.
Count 10 charged that, between 8 March 1993 and 31 January 2003, the appellant had a sexual relationship with a child under the age of 16 years, contrary to s 321A(3) of the Code. At the time of the offending, s 321A(1) of the Code provided:
For the purposes of this section a person has a sexual relationship with a child under the age of 16 years if that person, on 3 or more occasions each of which is on a different day, does an act in relation to the child which would constitute a prescribed offence.
A 'prescribed offence' was relevantly defined by s 321A(11) as being an offence of sexually penetrating a child or indecently dealing with a child contrary to s 320(2) or (4) (child under the age of 13 years) or s 321(2) or (4) (child of or over 13 years and under the age of 16 years) of the Code.
The appellant pleaded guilty to these offences at the first reasonable opportunity, for which he received a discount of 25% for the individual sentences under s 9AA of the Sentencing Act 1995 (WA). The appellant was sentenced to a total effective sentence of 7 years 8 months' imprisonment in respect of this offending. The individual sentence for the sexual relationship offence was 5 years' imprisonment. The maximum penalty for the sexual relationship offence was 20 years' imprisonment. The individual sentences are set out in the following table:
Count on indictment
Section of Code
Offence
Sentence
1.
329(2) Code
Digital penetration of vagina
2 years 8 months' imprisonment (cumulative)
2.
329(4) Code
Indecent dealing by rubbing penis against vagina
18 months' imprisonment (concurrent)
3.
329(4) Code
Indecent dealing by masturbating in the victim's presence
9 months' imprisonment (concurrent)
4.
329(2) Code
Engaging in cunnilingus
2 years 8 months' imprisonment (concurrent)
5.
329(2) Code
Digital penetration of vagina
2 years 8 months' imprisonment (concurrent)
6.
329(2) Code
Engaging in cunnilingus
2 years 8 months' imprisonment (concurrent)
7.
329(2) Code
Engaging in cunnilingus
2 years 8 months' imprisonment (concurrent)
8.
329(2) Code
Penile penetration of vagina
3 years 6 months' imprisonment (concurrent)
9.
333 Code
Deprivation of liberty
18 months' imprisonment (concurrent)
10.
321A(3) Code
Sexual relationship with a child under 16
5 years' imprisonment
Head sentence
Total effective sentence
7 years 8 months' imprisonment with parole eligibility backdated to 5 November 2020
Appeal against conviction
The appellant appeals against his conviction of the offences charged in counts 1 - 8 on the indictment, on the sole ground that a miscarriage of justice was occasioned in the circumstances described below. Leave to appeal on that ground has been granted.
It is established that an appellate court will not set aside a conviction based on a plea of guilty unless the appellant satisfies the court that a miscarriage of justice has occurred. Although that is no easy matter to establish, and the present case arguably falls outside the three well-recognised circumstances in which courts are prepared to set aside pleas of guilty, the circumstances which will amount to a miscarriage of justice are not closed.[1]
[1] See Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199 [145] - [155].
The appellant should not have been charged with, nor convicted of, any of the sexual penetration or indecent dealing offences, when the same indictment charged him with the sexual relationship offence. Section 321A(4), as it stood at the time of the offending, relevantly provided:
An indictment under subsection (3) shall specify the period during which it is alleged that the sexual relationship occurred and the accused shall not be charged in the same indictment with any other offence under this chapter alleged to have been committed against the child during that period.
Section 321A and 329 both appeared in chapter XXXI of the Code.
Further, under s 321A(10) of the Code as it stood at the time of the offending:
If a person has been tried and convicted or acquitted on an indictment alleging the commission of an offence under subsection (3), that fact is a defence to any charge of an offence under this chapter alleged to have been committed against the same child during the period when it was alleged the sexual relationship with the child occurred.
One legislative policy evident in these provisions is that a person should not be convicted of an offence against s 329 of the Code at the same time as, or after, being convicted of a sexual relationship offence in relation to the same child in the same period. These provisions were evidently overlooked by the sentencing judge, the prosecutor, and defence counsel at the time of the appellant's sentencing.
The State properly concedes that the appellant's conviction of offences against both s 321A and s 329 of the Code in respect of the same child over the same period constitutes a miscarriage of justice. That is so notwithstanding that the appellant was convicted on his pleas of guilty. In these circumstances, s 30(3) of the Criminal Appeals Act 2004 (WA) requires this court to allow the appeal against the appellant's conviction of counts 1 - 8 on the indictment and set aside the convictions of those offences.
Both the appellant and the State accepted that it was appropriate for this court to enter judgments of acquittal of counts 1 - 8 on the indictment, under s 30(5)(b) of the Criminal Appeals Act. Neither party contended that this court should order a trial of counts 1 - 8 under s 30(5)(a) of the Criminal Appeals Act.We accept that an acquittal should be entered in circumstances where, under s 321A(4) of the Code, the appellant should not have been charged with counts 1 - 8 in the indictment. Further, even if the appellant had been properly indicted, if the matter were now to be remitted for a trial he would have a defence to counts 1 - 8 on the indictment under s 321A(10) of the Code.
Varying the sentence for the sexual relationship offence (count 10)
Power to vary the sentence for count 10
Section 30(6) of the Criminal Appeals Act relevantly provides:
If the Court of Appeal enters a judgment of acquittal of offence A … it may vary any sentence —
(a)that was imposed for an offence other than offence A at or after the time when the offender was sentenced for offence A; and
(b)that took into account the sentence for offence A.
The existence of the court's discretion to vary a sentence under s 30(6) is conditioned by three requirements:
(1)This court must have entered a judgment of acquittal of offence A;
(2)The sentence for another offence which is to be varied must have been imposed at or after the time when the offender was sentenced for offence A; and
(3)The sentence for the other offence must have taken into account the sentence for offence A.
In the present case, counts 1 - 8 on the indictment are 'offence A', and count 10 on the indictment is the 'other offence', for the purposes of s 30(6) of the Criminal Appeals Act. This court will enter a judgment of acquittal for counts 1 - 8 on the indictment. The sentence for count 10 was imposed at the same time as the sentences for counts 1 - 8. The first two preconditions to the existence of this court's discretion under s 30(6) are clearly satisfied.
For the following reasons, we are also satisfied that the sentence of 5 years' imprisonment imposed for count 10 took account of the sentences for counts 1 - 8 on the indictment.
The statement of facts read by the prosecution indicated that the alleged 'sexual relationship' was constituted by the conduct the subject of counts 1 - 8, as well as 'general offending which occurred on numerous occasions'.[2] The sentencing judge confirmed this to be the case before sentencing the appellant.[3]
[2] Primary ts 11 - 12.
[3] Primary ts 22.
In that context, after identifying the length of the sentences to be imposed for counts 1 - 9, the sentencing judge said in his sentencing remarks:
And count 10 being the conduct ranging from the ages of 14 to 13 and I mean, there's got to be - bearing in mind the way I'm structuring the sentence I'm not including in that conduct the conduct the subject of the other counts for which I have sentenced you and I would impose for that offence a sentence of five years' imprisonment.
It is evident from this paragraph that, in imposing the sentence for count 10, the sentencing judge left out of account the criminality constituted by the conduct specified in counts 1 - 8 so as to avoid imposing double punishment. It may also be inferred that the sentence which the judge imposed for count 10 would have been higher had the sentence for that offence taken into account the conduct the subject of counts 1 - 8 on the indictment. The sentencing judge left that conduct out of account in imposing the sentence for count 10, and therefore imposed a lower sentence than his Honour would otherwise have regarded as commensurate with the seriousness of the sexual relationship offence, by reason of the sentences which his Honour imposed for counts 1 - 8. In that manner, the sentence for count 10 was affected by, and so took into account, the sentences for counts 1 - 8 on the indictment.
Therefore, as both parties correctly accepted, this court's discretion to vary the sentence for count 10 was enlivened.
Considerations relevant to the exercise of the court's discretion
The power conferred by s 30(6) of the Criminal Appeals Act is to vary a sentence imposed for another offence which took into account the sentence imposed for 'offence A' which is the subject of a successful appeal against a conviction of offence A. The evident purpose of the provision is to avoid the injustice (which would generally be to the State) which may arise where a conviction appeal is allowed in respect of an offence, the sentence for which affected other sentences imposed on the same offender.
The exercise undertaken by the court under s 30(6) may be contrasted with the exercise involved in an appeal against sentence under s 31 of the Criminal Appeals Act. Under s 31(4)(a), in an appeal against sentence this court may allow the appeal if, in its opinion, a different sentence should have been imposed. If the court allows the appeal, it must set aside the sentence and, relevantly, it 'may instead impose a new sentence that is either more or less severe'.
That is, where error or miscarriage is established in an appeal against sentence this court is concerned with whether a different sentence should have been imposed, and imposes the sentence which the court considers should have been imposed. By contrast, under s 30(6), the court is concerned with whether a sentence ought to be varied as a result of the offender's acquittal of another offence in order to avoid injustice.
The contrast in the powers conferred by s 30(6) and s 31 of the Criminal Appeals Act may be significant where this court would, if it had been sentencing the offender at first instance, have imposed a more severe total effective sentence than was imposed by the sentencing court. Where, for example, this court would allow an offender's appeal against sentence by reason of express error by the sentencing judge, it might still form the view that a more severe sentence should have been imposed. The court has the power, on an offender's appeal against sentence, to impose a more severe sentence under s 31 of the Criminal Appeals Act. The potential for injustice to the offender is avoided by the implicit requirement that the court notify the offender that there is a prospect of a more severe sentence being imposed. That notice is provided for purposes which include allowing the offender a reasonable opportunity to discontinue his or her appeal and avoid that outcome.[4]
[4] See Neal v The Queen (1982) 149 CLR 305, 308; Parker v Director of Public Prosecutions (1992) 28 NSWLR 282, 295.
Assuming, without deciding, that this court has the power to impose a more severe total effective sentence under s 30(6) of the Criminal Appeals Act, there would undoubtedly be an equivalent requirement for notification of the offender of that prospect. However, that notification and the opportunity to discontinue the appeal does not provide the same protection against injustice in an appeal against conviction as it does in an appeal against sentence. The power under s 30(6) only arises once the court concludes that a conviction should be set aside and a judgment of acquittal substituted. Discontinuing the appeal would leave in force the judgment of conviction, which this court has concluded should not have been entered. It would also be unfair to an offender to make a more severe overall sentence the price of setting aside a conviction which should not have been entered.
The public policy against such an outcome was identified by the Court of Criminal Appeal in Williams v The Queen [No 2].[5] There, the issue arose in a context of an offender's appeal against a sentence imposed on a retrial, after the original conviction had been quashed on appeal. The sentence imposed on retrial was significantly more severe than that imposed after the first trial. It was held that, although the second judge was not bound to impose the same sentence imposed after the first trial, unless there was 'strong ground' there should not be a disparity between the sentence imposed after retrial and that imposed after the first conviction (the reference to 'strong ground' being derived from an earlier decision of the Court of Criminal Appeal).[6] Burt CJ, with whom Wickham and Kennedy JJ agreed,[7] adopted the following observations of Street CJ in Gilmore v The Queen:[8]
It is in the public interest in ensuring orderly and proper administration of the criminal law that defects in trials should be challenged and laid bare on appeal. As a corollary to this, it is wrong that any person should suffer ill-founded criminal judgment in consequence of a defective trial, and feel constrained to avoid exposing that defect lest on a new trial a heavier sentence be passed.
[5] Williams v The Queen [No 2] [1982] WAR 281.
[6] Williams v The Queen [No 2] (283) (referring to Leary v R (SCWA, CCA, Del, 18 August 1975)).
[7] Williams (283)
[8] Gilmore v The Queen (1979) 1 A Crim R 416, 419 - 20.
This principle is not absolute, as reflected in the fact that the appeal against sentence was dismissed in Williams. That was on the basis that the original sentence was manifestly inadequate and the second sentence within the range of the sentencing judge's discretion.[9]
[9] See Williams (284).
In exercising its discretion under s 30(6), this court may have regard to the public interest identified at [27] above. In determining what the interests of justice require, this court may also have regard to the sentences which were imposed at first instance for all of the offences, and the impact which the conviction for 'offence A' had on the sentences imposed for other offences. Having regard to the public interest as accepted in Williams, absent strong reason for doing so, the court will generally not vary a sentence for another offence in a manner which results in a total effective sentence that is more severe than the sentence imposed at first instance for that offence and 'offence A'.
Before dealing with the exercise of the discretion, we will consider the factors relevant to the assessment of the seriousness of the appellant's offending.
Circumstances of offending
The appellant, the victim and the victim's mother arrived in Australia from another country when the victim was 7 years old, and lived together as a family.
The specific acts which constitute the prescribed offences that make up the sexual relationship offence (and were the subject of counts 1 - 8 on the indictment) are as follows.
When the appellant was aged between 33 to 35 years of age, and the victim was aged between 10 and 12 years, the appellant carried the victim from her bed to a shed out the back of the house where they were living and inserted his finger into her vagina. Shortly thereafter, the appellant commenced rubbing his penis on her vagina until he ejaculated.
On a different occasion when the appellant and victim were in the same age range, the victim woke up wearing a white G-string. She did not own a white G-string and did not know how she came to be dressed in that way. The appellant was masturbating in front of her and then performed cunnilingus on her.
On the evening of 11 and 12 September 2001, when the victim was 12 years old and the appellant was 35 years old, the appellant inserted his finger into her pants and ultimately into her vagina, and performed cunnilingus on her, while watching TV (which depicted aircraft crashing into the World Trade Centre). The appellant and the victim's mother had separated at this time.
On another occasion, when the victim was 13 years old, the appellant put his tongue and penis into the victim's vagina. She started to kick the appellant. When the victim struggled and tried to kick the appellant off and leave the house, he stopped her from leaving by grabbing her, holding her arms and pushing her back from the door. She kicked and punched the appellant and was eventually able to leave. She ultimately went to a service station and rang her mother. The detention of the complainant was the subject of count 9 on the indictment.
Other sexual offending occurred from the time the victim was approximately 4 years old until she was 13 years old. The sexual offending occurred in a variety of locations in the house where they were staying. On occasion, the appellant would collect the victim from school and return her to the school after he had sexually abused her. The victim was sexually assaulted on a regular basis two or three times a week and quite often on multiple occasions on the same day. The other offending included the appellant performing cunnilingus on the victim and then putting his mouth over her breasts. After the appellant and the victim's mother separated, the victim would still attend the appellant's home along with her half-sister. The appellant sexually assaulted the victim on every occasion she attended his house at this time.
Victim impact
The victim read a victim impact statement to the sentencing court, which gave a detailed description of the devastating effect which the offending has had, and continues to have, on all aspects of her life.
Personal circumstances
The appellant, who was 54 years old at the date of sentencing, had no relevant criminal record and had been employed up until about April 2020. The appellant pleaded guilty at the first reasonable opportunity, accepted responsibility for his offending and cooperated with police.
Appropriate variation of the sentence for sexual relationship offence
This is a very serious example of an offence against s 321A(3) of the Code. The offending was regular, repeated and persistent, involving a very large number of individual prescribed offences occurring from the time the victim was aged 4 years until she was 13 years old. It involved a serious breach of trust which had and continues to have a devastating effect on the victim. While there were a number of mitigating factors to be found in the appellant's personal circumstances, the significance of personal and general deterrence as predominant sentencing considerations for this kind of offending mean that those personal factors must be given less weight.
Having regard to the above matters, and the well-known general sentencing principles which apply to sexual offending against children, a sentence of 7 years 8 months' imprisonment for the sexual relationship offence might be regarded as lenient. That is so even allowing for a discount of 25% under s 9AA of the Sentencing Act in respect of the appellant's plea of guilty at the first reasonable opportunity.
However, in considering how the sentence for the sexual relationship should be varied, it is also appropriate to have regard to the matters referred to at [26] - [29] above.
In the present case, it is clear that, had the sentencing judge taken account of the conduct the subject of counts 1 - 8 in sentencing the appellant for count 10, he would not have imposed a sentence longer than 7 years 8 months' imprisonment. Further, as the Director of Public Prosecutions submitted,[10] it would be unjust in the present circumstances to impose a sentence for the sexual relationship offence that was more severe than the total effective sentence for counts 1 - 10 imposed by the sentencing judge. In the circumstances of this case, it would be unjust to impose upon the appellant the choice of either:
(1)discontinuing the appeal; or
(2)facing the prospect of a more severe sentence than 7 years 8 months' imprisonment as the price for setting aside the convictions on counts 1 - 8 on the indictment, which convictions should not have occurred.
[10] Appeal ts 16 - 17.
In all the circumstances of this case, the appropriate exercise of our discretion is to vary the sentence for the sexual relationship offence charged in count 10 of the indictment by increasing it from 5 years' imprisonment to 7 years 8 months' imprisonment. We will not vary the sentence for count 9, which will continue to be served concurrently with the sentence for count 10 on the indictment. Nor will we vary the order that the appellant is eligible for parole, or the order backdating the sentences for counts 9 and 10 to 5 November 2020 (taking account of time spent in custody).
Orders
For the above reasons, we will make the following orders in the appeal:
(1)The appeal is allowed.
(2)The appellant's convictions of the offences charged in counts 1 - 8 inclusive of District Court indictment 1234 of 2020 are set aside and judgments of acquittal are substituted for those offences.
(3)The appellant's sentence for the offence charged in count 10 of District Court indictment 1234 of 2020 is varied by increasing it to 7 years 8 months' imprisonment.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MT
Associate to the Honourable Justice Mitchell
17 AUGUST 2021
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