B v The Queen
[2002] WASCA 236
•28 AUGUST 2002
"B" -v- THE QUEEN [2002] WASCA 236
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 236 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:163/2001 | 26 JULY 2002 | |
| Coram: | MURRAY J TEMPLEMAN J MILLER J | 28/08/02 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Applications for extension of time dismissed | ||
| B | |||
| PDF Version |
| Parties: | "B" THE QUEEN |
Catchwords: | Criminal law Sentencing Offences of having a sexual relationship with a child under the age of 16 years Father of children Four children aged between 3 and 6 years Whether maximum of 20 years' imprisonment appropriate by way of starting point Whether 15 years' imprisonment on each count excessive Total sentence of 20 years not excessive |
Legislation: | Nil |
Case References: | Bensegger v R [1979] WAR 65 Cameron v The Queen [2002] WASCA 81 Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996 Gavin v The Queen (1992) 6 WAR 195 Jarvis v The Queen (1993) 20 WAR 201 Mill v The Queen (1988) 166 CLR 59 Veen v The Queen (No 2) (1988) 164 CLR 465 Woods v The Queen (1994) 14 WAR 341 De Luce v The Queen, unreported; CCA SCt of WA; Library No 960735; 19 July 1996 King v The Queen [2001] WASCA 103 Lowe v The Queen (1984) 154 CLR 606 Miller v The Queen [1999] WASCA 66 R v CW [2000] WASCA 81 R v GP (1997) 93 A Crim R 351 R v Podirsky (1989) 43 A Crim R 404 R v Richards [1999] WASCA 105 R v Western [2001] WASCA 194 Trescuri v The Queen [1999] WASCA 172 Watson v The Queen [2000] WASCA 119 Wicks v The Queen (1989) 3 WAR 372 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : "B" -v- THE QUEEN [2002] WASCA 236 CORAM : MURRAY J
- TEMPLEMAN J
MILLER J
- CCA 164 of 2001
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law - Sentencing - Offences of having a sexual relationship with a child under the age of 16 years - Father of children - Four children aged between 3 and 6 years - Whether maximum of 20 years' imprisonment appropriate by way of starting point - Whether 15 years' imprisonment on each count excessive - Total sentence of 20 years not excessive
Legislation:
Nil
(Page 2)
Result:
Applications for extension of time dismissed
Category: B
Representation:
Counsel:
Applicant : In person
Respondent : Mr D Dempster
Solicitors:
Applicant : Unrepresented Criminal Appellants Scheme
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Bensegger v R [1979] WAR 65
Cameron v The Queen [2002] WASCA 81
Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996
Gavin v The Queen (1992) 6 WAR 195
Jarvis v The Queen (1993) 20 WAR 201
Mill v The Queen (1988) 166 CLR 59
Veen v The Queen (No 2) (1988) 164 CLR 465
Woods v The Queen (1994) 14 WAR 341
Case(s) also cited:
De Luce v The Queen, unreported; CCA SCt of WA; Library No 960735; 19 July 1996
King v The Queen [2001] WASCA 103
Lowe v The Queen (1984) 154 CLR 606
Miller v The Queen [1999] WASCA 66
R v CW [2000] WASCA 81
R v GP (1997) 93 A Crim R 351
(Page 3)
R v Podirsky (1989) 43 A Crim R 404
R v Richards [1999] WASCA 105
R v Western [2001] WASCA 194
Trescuri v The Queen [1999] WASCA 172
Watson v The Queen [2000] WASCA 119
Wicks v The Queen (1989) 3 WAR 372
(Page 4)
1 MURRAY J: I have had the advantage of reading in draft, the reasons now published by Miller J. I entirely agree with them without addition. I too would refuse the extension of time sought in each case.
2 TEMPLEMAN J: I agree, for the reasons to be published by Miller J, which I have read in draft, that the applicant should not be granted an extension of time in which to appeal against his conviction, nor should he be granted leave to appeal against sentence.
3 MILLER J: The applicant in CCA 163 of 2001 seeks leave to appeal against a sentence of 20 years' imprisonment imposed by Hammond CJDC in the District Court at Perth on 28 November 2000. It was a sentence for four counts of having a sexual relationship with a child under the age of 16 years, contrary to the provisions of s 321A(3) of the Criminal Code.
4 The application for leave to appeal against sentence is approximately 11 months out of time. There is an application for extension of time within which to appeal. In support of the application for extension of time the applicant contends that when first sentenced, he was unaware of the fact that the charges included allegations of actual penile penetration and he had only recently learned of that fact prior to the filing of his notice of application for leave to appeal on 13 November 2001.
5 The delay in filing the notice of application for leave to appeal against sentence is so lengthy that exceptional circumstances would need to be shown before any extension of time for the application for leave to appeal would be granted, unless it can be shown that there would be a miscarriage of justice if the application were to be refused: Gavin v The Queen (1992) 6 WAR 195. There are no exceptional circumstances in this case and it can only be if there would be a miscarriage of justice if the application is refused that an extension of time should be granted.
6 In CCA 164 of 2001 there is an application for leave to appeal against conviction. It is dated 21 November 2001. It is accompanied by an application for extension of time within which to appeal dated 13 November 2001. That notice contains the same explanation for the long delay in the filing of the notice of application for leave to appeal.
7 It is convenient to deal first with the application for leave to appeal against conviction. It would again be necessary for the applicant to demonstrate exceptional circumstances before an extension of time within
(Page 5)
which to appeal should be granted, unless he could show that there would be a miscarriage of justice if the application were to be refused. The proposed ground of appeal upon which the applicant relies is specified to be merely that "the conviction(s) were unsafe and unsatisfactory". The applicant, who appeared in person before this Court, expanded this ground at the hearing of the appeal by contending that when he had pleaded guilty to the indictment containing the four offences under s 321A(3) of the Code, he had not understood that allegations of sexual penetration were asserted by the prosecution. He said that he thought only inappropriate sexual touching of the children was involved.
8 The indictment which was presented on 5 September 2000 particularises the offences against the applicant in this way:
"(1) Between 30 March 1999 and 1 December 1999 at Medina ['B'] had a sexual relationship with ['N'] a child under the age of 16 years.
(2) AND FURTHER that between 30 March 1999 and 1 December 1999 at Medina ['B'] had a sexual relationship with ['A'] a child under the age of 16 years.
(3) AND FURTHER that between 30 March 1999 and 1 December 1999 at Medina ['B'] had a sexual relationship with ['R'] a child under the age of 16 years.
(4) AND FURTHER that between 30 March 1999 and 1 December 1999 at Medina ['B'] had a sexual relationship with ['L'] a child under the age of 16 years."
9 The provisions of s 321A(1) of the Code provide that, for the purposes of the section, a person has a sexual relationship with a child under the age of 16 years if that person, on three 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.
10 Section 321A(11) of the Code defines a "prescribed offence" to mean (relevantly) an offence under s 320(2) or s 320(4) of the Code. Section 320(2) provides that any person who sexually penetrates a child (being a child under the age of 13 years) is guilty of a crime. Section 320(4) provides that any person who indecently deals with a child is guilty of a crime.
(Page 6)
11 The indictment was put to the applicant in the District Court on 20 November 2000 and to each count he pleaded guilty. The Crown prosecutor then read the facts to the Court in which he made it clear that in the case of each child, allegations of sexual penetration were alleged. The full details of each of the acts relied upon were read to the Court in the presence of the applicant. There could be no mistake that the Crown was contending that offences of sexual penetration had occurred. By way of example, the prosecutor's statement in relation to the child "N" was in the following terms:
"The complainant in this matter, in count 1, is the biological daughter of the offender. She was born on 17 March 1993. She was therefore 6 years of age at the relevant time. Between 30 March 1999 and 1 December 1999 the offender began and maintained a sexual relationship with the complainant. On many occasions between these dates on different days, the exact number of occasions not being known, the offender sexually penetrated the complainant by inserting his fingers into her vagina or by placing his penis into her vagina and having sexual intercourse with her."
12 At the conclusion of the Crown prosecutor's submissions to Hammond CJDC, counsel for the applicant made the following statement:
"QUAIL, MR: Thank you, your Honour. While my learned friend obtains the antecedent report, your Honour, the facts are admitted. There are no issues taken in relation to any matters raised by my learned friend. The only issues in respect of sentencing, your Honour, are term, totality and parole. My comments are directed solely in relation to those issues."
13 The applicant's contention that he was unaware that he was pleading guilty to an indictment in relation to which the counts alleged sexual penetration of his children does not sit easily with this statement by his counsel. Indeed, it is unthinkable that counsel would have made the statement he did, unless he had specific instructions from the applicant to that effect. Further, the applicant who was present in court made no attempt to correct his counsel or contend that he had pleaded guilty unwittingly to an indictment which he did not understand.
14 There was tendered to the learned sentencing Judge a psychological report of Mr Bruce Beaton, dated 6 November 2000. In that report Mr Beaton, a clinical and forensic psychologist, made reference to the fact
(Page 7)
- that the applicant was alleged to have engaged in oral and anal sex with the four older children and vaginal sexual intercourse with each of the three girls. He detailed his dealings with the applicant in interview and in the course of his report, made these observations:
"When talking about the sexual contact with his children, and when asked about any specifics of the sexual abuse he cried openly, apparently with a combination of simultaneous intense sadness, rage and extreme self-disgust. This was in contrast to a level of difficult-to-impose self-control he displayed when dealing with other aspects of the assessment."
16 Nothing said by the applicant before the Court or in any of the documentation in the proceedings, supports the contention that his plea of guilty was based upon a false understanding of the nature of the charges against him. In my view, there is no basis upon which the application for leave to appeal against conviction can proceed forward and I would refuse an extension of time within which to make that application.
17 The application for leave to appeal against sentence was accompanied by an outline of submissions prepared on behalf of the applicant by the Unrepresented Criminal Appellants Scheme. This outline of submission expanded the ground of appeal which was simply that "the sentence was manifestly excessive in all the circumstances". The essential submission was that the learned sentencing Judge had erred in law by starting with a head sentence of 20 years. Numerous authorities were referred to in support of the proposition that a 20 year sentence was against the trend of sentences previously imposed in extremely serious cases. It was also submitted that the learned sentencing Judge had failed to give any or any adequate consideration to matters personal to the applicant and it was contended that the totality principle was misapplied, because the aggregate sentence of 20 years was manifestly excessive.
18 The applicant relied at the hearing upon the written outline of submissions and indicated that he did not wish to advance any further oral argument in their support. In any event, the written submissions were a comprehensive analysis from his point of view and quite sufficient to
(Page 8)
- enable the court to deal with the matter without the benefit of additional oral argument.
19 When the learned sentencing Judge sentenced the applicant he first summarised the facts. These his Honour found to be of the utmost enormity. Reference was made in his Honour's sentencing comments to a report from the Child Protection Unit at Princess Margaret Hospital and his Honour then said:
"The medical director says this:
In summary the children are amongst the most serious and distressing cases that in my 20 years in the Child Protection Unit of Princess Margaret Hospital that I have had to deal with.
I have also sat in this court now for 19 years and I can understand those sentiments completely. This is a case of abuse of children the like of which I have not previously encountered either in my own experience or in readily available precedents."
20 In my view, his Honour's observations were entirely justified as the following recitation of the facts by his Honour will reveal:
"['B'], you come today for sentence having been convicted in this court on 20 November last on your admission of having had a sexual relationship with four of your children during the period from 30 March 99 to 1 December 99. Dealing with the children in order, there are twin girls N and A, both of whom were born on 17 March 1993. The sexual relationship conducted by you, their father, with them occurred whilst they were 6 years of age. The boy R was born on 19 April 1994 and ergo the sexual activity imposed him by you, his father, occurred whilst this boy was 5 years of age. The girl L was born on 5 June 1995 and therefore she was but at the age of less than 4 when the offender, her father, commenced his relationship with her.
The term sexual relationship when used in this context means that a person has a sexual relationship with a child under the age of 16 years if that person, the offender, on three 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, and the code goes on to define what a prescribed
(Page 9)
- offence is and, of course, generally it is the offence of penetration.
The facts as to which no dispute was taken by the offender and as recited to the court are in brief terms as follows: all children are the children of the union of the offender and his now estranged partner. In July of 1999 the partner, the mother of the children, left the premises with all of the children save for the child N but within a fortnight all children, including the complainants, returned to live with the offender after he obtained their custody from the Family Court.
Dealing now with complainant N, between March and December 99 on many occasions, the exact extent of those occasions not being known, you, the offender, sexually penetrated her by inserting your fingers into her vagina or having penile vaginal intercourse with her. On at least one occasion there was anal penetration of the child followed immediately by vaginal penetration.
Turning to the child A, who is the second born of the twin girls, again, between March 99 and December 99 there were a considerable number of occasions, the exact number being unknown, when you, the offender, sexually penetrated the complainant by way of penile vaginal and penile anal penetration. In her interview with the interviewing police officer, this complainant said that this happened every second night.
I now turn to the third complainant, the boy R. This child would have turned 4 on 19 April 99 at which time his father was sexually abusing him. It is a harrowing experience to read the child's statement on pages 117 to 135 of the brief, or thereabouts, in which the child details the many occasions that he was sodomised by his father and the occasions upon which the father required this 4-year-old to perform fellatio upon him. Following that act, it appears that on at least one occasion the offender required the child to swallow the ejaculate.
I turn now to the child L, who was born on 5 June 95, and so therefore during the subject period she was between 3 and 4 years of age. The same types of activity, again, to an unknown extent, took place between the offender and the
(Page 10)
- youngest child L in the same manner as previously described with the other children."
21 After reciting the facts the learned sentencing Judge turned to the personal circumstances of the applicant. He pointed out that he had been born in July 1972 and had a de facto relationship with the mother of the four complainant children. At or about the time the abuse had occurred, the mother had left the relationship, leaving the children with the applicant. In the Family Court he gained an order for custody of them. During the year 1999 when the abuse occurred, the applicant was not working, but was looking after the children at home, receiving social security. According to the learned sentencing Judge, he abused alcohol in a major way and the psychological report tendered to the Court on his behalf revealed that as a child, he himself had had a history of sexual abuse, which was considered to be a factor contributing to his behaviour towards his own children. He had no prior convictions for any offences.
22 In sentencing the applicant the learned trial Judge took full account of the principles so clearly enunciated by Murray J in Dempsey v The Queen, unreported; CCA SCt of WA; Library No 960059; 9 February 1996 where (at pages 6 - 7) his Honour enumerated factors to which attention would need generally to be given in cases of sexual assault:
"1. The nature of the conduct in question, the degree of perversion or deviance demonstrated.
2. The relative ages of the offender and the victim.
3. Whether the offender was in a position of trust or authority with respect to the victim, thus better enabling the commission of the offence.
4. Whether there was, apart from such position of trust or authority, any element of coercive or forceful behaviour on the part of the offender.
5. The circumstances of the victim and the degree to which that person was not only taken advantage of, but his or her corruption was contributed to by the commission of the offence.
6. Whether the offence was repeated and if so over what period or periods of time so as to enable the court to
(Page 11)
- consider whether it was of an isolated character or displayed recidivism on the part of the offender.
- 7. The degree of remorse displayed and whether any such contrition has been effectively followed up by determined efforts to achieve the offender's rehabilitation.
8. The youth of the offender.
9. The extent to which the victim's co-operation in the commission of the offences was secured by friendship or by the offer of some reward.
10. The actual impact of the commission of the offence upon the child established by a victim impact statement or otherwise.
11. Whether the offender has a prior relevant criminal history.
12. The prevalence of such offences in the community at the time and the degree to which particular circumstances indicate a heightened need to seek to achieve the protection of the community and particularly of young persons from the commission of such offences, whether with or without their consent."
23 The learned sentencing Judge pointed out that when regard was had to these principles, the case before him appeared "to be almost the worst imaginable". He added:
"There are four children involved here. The degree of perversion and deviance is extraordinary, particularly also because they are the natural children of the offender. Looking at the age of these children, they were truly infants."
24 His Honour had particular regard to the age of the children; the dependency of the children upon their father in every way; the repetition of the offences; the presence of one or other of the complainant children during acts of intercourse with others; the absence of youth on the part of the applicant himself; the transmission of disease from the applicant to the children whom he had abused and the attempts made by the applicant in his video record of interview with investigating police to deny matters and attempt to blame others for what had occurred.
(Page 12)
25 In imposing sentencing the learned sentencing Judge took the view that the offences were so close to the top of the range in seriousness and culpability that they ought to attract as a starting point the maximum sentence of 20 years. That sentence was then reduced in each case to a term of 15 years by reason of the applicant's plea of guilty at the earliest opportunity, thus sparing the children the additional trauma of a trial. His Honour took into account the totality issue and recognising the complexity of the sentencing exercise concluded that an effective sentence of 20 years would be appropriate, calculated from 10 May 2000.
26 In structuring that sentence his Honour imposed four terms of imprisonment of 15 years, directing that the terms imposed on counts 1 and 2 be served concurrently and the terms on counts 3 and 4 also be served concurrently, but that the concurrent terms of 15 years should be served partially cumulatively and partially concurrently with the concurrent terms of 15 years imposed on counts 1 and 2. His Honour directed that 5 years of that term of 15 years imposed for counts 1 and 2 be served before the 15 years for counts 3 and 4 commenced to be served. An order for eligibility for parole was made.
27 In my view, the learned trial Judge was entitled to take the view that the offences were so close to the top of the range of seriousness and culpability that they ought to attract as a starting point the maximum sentence available. A maximum sentence prescribed by statute is not reserved for the worst offence of the kind dealt with by it that can be imagined. I respectfully adopt what was said by Burt CJ in Bensegger v R [1979] WAR 65 at 68:
"A maximum sentence prescribed by statute is not reserved for the worst offence of the kind dealt with by it that can be imagined. If such were the case it could never be imposed as the addition of further non-existing but aggravating circumstances would never be beyond the reach of imagination. The true rule as I understand it is that the maximum sentence should be reserved for the worst type of case falling within the prohibition or, as it is expressed by Dwyer CJ in Reynolds v Wilkinson (1948) 51 WALR 17, at 18, 'for the worst cases of the sort'. That expression should be understood to be marking out a range and an offence may be within it notwithstanding the fact that it could have been worse than it was."
(Page 13)
28 In Veen v The Queen (No 2) (1988) 164 CLR 465 at 478, Mason CJ, Brennan, Dawson and Toohey JJ said much the same in the following terms:
"The second subsidiary principle material to this case is that the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed: Ibbs v The Queen. That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognizably outside the worst category."
29 In my view, the discount of each sentence from the maximum of 20 years to 15 years appropriately recognised the plea of guilty of the applicant and the matters personal to him. In relation to the plea of guilty, it should be said that there appears primarily to have been a facilitation of the course of justice. There was an element of remorse present, identified in the psychologist's report. There was, however, a failure to accept responsibility for the offences alleged, particularly as the applicant, even at the time of the hearing of this appeal, was contending that he was unaware that he was alleged to have sexually penetrated the children. The element of remorse is therefore tempered by this qualification.
30 In Cameron v The Queen [2002] WASCA 81 at [9] - [10] I summarised the effect of the decision of the High Court in the same case ((2002) 76 ALJR 382) in the following way:
"9 In the High Court, Gaudron, Gummow and Callinan JJ pointed out that it is now well established that the fact that an accused person has pleaded guilty is a matter properly to be taken into account in mitigation of his or her sentence. Reference was made to Siganto v The Queen (1998) 194 CLR 656, particularly at [22] where it was observed that the plea of guilty is taken into account in mitigation for two particular reasons. The first is that it is usually evidence of some remorse on the part of the offender and the second is the pragmatic ground that the community is spared the expense of a contested trial.
10 However, Gaudron, Gummow and Callinan JJ extended a little what had been said in Siganto v The Queen by
(Page 14)
- putting the importance of the plea of guilty on the following basis (at [22]):
'… the issue is to what extent the plea is indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice. And a significant consideration on that issue is whether the plea was entered at the first reasonable opportunity.'
- Their Honours pointed out that whether or not a plea of guilty is a 'fast-track' plea will not necessarily determine the extent to which mitigation should be allowed."
- In my view, the discount given by the learned trial Judge for the plea of guilty and matters personal to the applicant properly reflected all relevant factors.
31 There is, of course, no tariff applicable in sentencing for sexual offences. Whilst a wide range of cases was referred to in the written submissions filed on behalf of the applicant and particular reliance placed upon the analysis of sentencing in sexual cases by Anderson J in Woods v The Queen (1994) 14 WAR 341, the fact remains that no two cases are the same. This is exemplified in the present case, where the applicant, the father of four children aged between 3 and 6 years, committed multiple sexual offences against them involving sexual penetration in the circumstances set out by the learned sentencing Judge. I know of no case involving such concentrated and depraved abuse by a father of his infant children. Intra-family sexual assaults of young children where more than one child has been victimised will inevitably attract heavy sentences: Woods v The Queen (supra) per Anderson J at 354. A sentence of 15 years' imprisonment on each count in this indictment was, in my view, within the range of sentences appropriate for the case.
32 I am of the opinion that the totality principle was properly taken into account by the learned trial Judge. The principle, approved by the High Court in Mill v The Queen (1988) 166 CLR 59 at 63 is as follows:
"The totality principle has been recognized in Australia. In Reg v Knight, the Full Court of the Supreme Court of South Australia (Walters, Zelling and Williams JJ) said, in a joint judgment:
(Page 15)
- 'it seems to us that when regard is had to the totality of the sentences which the applicant is required to undergo, it cannot be said that in all the circumstances of the case, the imposition of a cumulative sentence was incommensurate with the gravity of the whole of his proven criminal conduct or with his due deserts. To use the language of Lord Parker LCJ in Reg v Faulkner, "at the end of the day, as one always must, one looks at the totality and asks whether it was too much".' "
33 In a passage at the same page, the Court added:
"Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed."
34 In my view, the learned sentencing Judge appropriately structured the sentences imposed upon the applicant to take account of concurrency and by a partial cumulative effect so as to arrive at an appropriate end sentence. See also Jarvis v The Queen (1993) 20 WAR 201 per Murray J at 211.
35 Because, in my view, the sentences imposed upon the applicant were within an appropriate range open to the learned sentencing Judge, I would refuse the application for extension of time within which to seek leave to appeal against sentence in this case.
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