BGR v The State of Western Australia - [2014] WASCA 82

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: BGR -v- THE STATE OF WESTERN AUSTRALIA [2014] WASCA 82

CORAM: McLURE P
PULLIN JA
BUSS JA

HEARD: 13 FEBRUARY 2014

DELIVERED : 17 APRIL 2014

FILE NO/S: CACR 222 of 2013

BETWEEN: BGR
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :BRADDOCK DCJ
File No  :IND BUN 76 of 2013

Catchwords:

Criminal law - Sentencing - Manifest excess - Unusual combination of mitigating factors - Delay - Failure to give discount for disclosure of circumstances and offences not otherwise known

Legislation:

Criminal Appeals Act 2004 (WA), s 31(4)(a)
Criminal Code (WA), s 329(4)
Sentencing Act 1995 (WA), s 8(4), s 9AA, s 39(3)

Result:

Appeal allowed
Orders made by sentencing judge set aside
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant: Mr D S Hunter
Respondent: Mr J Mactaggart

Solicitors:

Appellant: Legal Aid (WA)
Respondent: Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Bell v The Queen [2001] WASCA 40
Brown v The State of Western Australia [2011] WASCA 111; (2011) 207 A Crim R 533
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Director of Public Prosecutions v DJK [2003] VSCA 109
Dunks v The State of Western Australia [2009] WASCA 82; (2009) 195 A Crim R 130
Ferry v The Queen [2003] WASCA 207
Fogg v The State of Western Australia [2011] WASCA 11
GJT v The State of Western Australia [2011] WASCA 263; (2011) 214 A Crim R 272
H v The State of Western Australia [2006] WASCA 53; (2006) 163 A Crim R 151
HFM v The State of Western Australia [2012] WASCA 217
Hodder v The State of Western Australia [2005] WASCA 257
JD v The State of Western Australia [2008] WASCA 147
KS v The State of Western Australia [2011] WASCA 85
L v The State of Western Australia [2007] WASCA 186; (2007) 176 A Crim R 135
LJP v The State of Western Australia [2010] WASCA 85
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
M v The State of Western Australia [2006] WASCA 256
MPD v The State of Western Australia [2008] WASCA 57
P v The State of Western Australia [2007] WASCA 220; (2007) 177 A Crim R 69
Porter v The Queen [2008] NSWCCA 145
PP v The State of Western Australia [2004] WASCA 144
R v Ellis (1986) 6 NSWLR 603
R v Webb [1971] VR 147
Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267
Schriever v The State of Western Australia [2008] WASCA 133
Scook v The Queen [2008] WASCA 114; (2008) 185 A Crim R 164
Sell v The Queen (1995) 15 WAR 240
Skipworth v The State of Western Australia [2008] WASCA 64
Ward v The State of Western Australia [2011] WASCA 172; (2011) 211 A Crim R 472
Woods v The Queen (1994) 14 WAR 341
Worthington v The State of Western Australia [2005] WASCA 72; (2005) 152 A Crim R 585

McLURE P: This is an appeal against sentence.
The appellant was convicted on his plea of guilty of six counts of indecently dealing with a lineal relative under the age of 16 years contrary to s 329(4) of the Criminal Code (WA). The offences were against the appellant's granddaughter. They were committed on unknown dates in the period between January 2001 and January 2003 when the complainant was aged between 4 and 7 years. The appellant was aged between 59 and 61 at the time of the offending. He was aged 72 at the time of sentencing.
The appellant was sentenced by Braddock DCJ to 15 months' imprisonment on each of counts 1, 3 and 6 and 12 months' imprisonment for the remaining counts. The sentences were ordered to be served concurrently, resulting in a total effective sentence of 15 months' imprisonment. An order for parole eligibility was made.
In his only ground of appeal the appellant claims, in effect, that the sentences of immediate imprisonment were manifestly excessive in that the wrong type of sentences were imposed. The appellant contends that the terms of imprisonment should have been suspended. However, in his written submissions there is a claim that the sentencing judge made an express error in failing to give a discount for his voluntary disclosure of circumstances and offences which would otherwise have not come to light. The facts of the offending are as follows.
Count 1 occurred when the appellant was looking after the complainant at his home. He took the complainant into a bedroom and undressed her. He undressed himself and laid on the bed with the complainant. He kissed her chest, stomach and touched her vagina with his hand and kissed her groin area and buttocks. The appellant told the complainant not to tell anyone about the actions saying 'you don't want Poppy to go to jail do you?'.
Count 2 occurred on another occasion when the appellant was looking after the complainant at his home. He masturbated in front of the complainant until he ejaculated into a towel.
Count 3 occurred when the complainant was staying at the appellant's home. The appellant took down the complainant's underpants and kissed and licked her vagina and groin area.
Count 4 occurred when the complainant was visiting the appellant's home together with other family members. Having heard other children talk about 'balls' the complainant asked the appellant what it meant. He took the complainant's hand and applied pressure so that her hand was pressing on his testicles.
Count 5 occurred when the appellant was pushing the complainant on a swing in his yard. He turned the complainant upside down and kissed her vagina and groin through her underpants.
As to count 6, the appellant took the complainant to her own house to collect some items. He took her to one of the bedrooms where he undressed the complainant and kissed and licked her vagina and groin area.
The mother of the complainant is the appellant's daughter from his first marriage which ended in around 1973. The appellant married his current wife in 1978 and they have three children.
In 2003 at the age of 7 the complainant disclosed the appellant's conduct to her mother following a danger awareness talk at her primary school. A police investigation followed approximately one year later in November 2004. However, the investigation was closed without police interviewing the appellant due to the traumatic effect the investigation was having on the complainant. The police investigation was reopened in April 2013 at the request of the complainant who was then aged 17.
The appellant had ceased offending against the complainant prior to the complainant's disclosure of the appellant's offending to her mother. After the disclosure, the appellant admitted his guilt to his family and to the elders of the Jehovah's Witness Church of which he was a member. As a result of his admissions, the appellant was 'disfellowshipped' from the Church.
Following his admissions, in about 2004 the appellant enrolled in a two‑year SafeCare sex offender treatment programme. SafeCare was an independent community based organisation providing treatment, counselling and support services to families where child sexual abuse was an issue. The programme attended by the appellant involved 12 months of intensive group therapy followed by another 12 months of individual counselling support and follow up. During this two‑year period, under the conditions of the programme, the appellant was required to leave the family home and not have any unsupervised contact with children. He successfully completed all aspects of the programme.
As a result of committing the offences against the complainant the appellant and his wife separated. They were reconciled at the end of his second year of participation in the SafeCare programme. He was also reinstated into his Church in late 2005.
The appellant had a mild depressive condition and was sexually abused as a child. At the time of the offences and from around age 25, the appellant had a significant problem with alcohol including regular binge drinking episodes. On admitting the offences, the appellant ceased to consume alcohol. He has remained abstinent.
The appellant was first interviewed by police concerning the complainant's allegations on 12 June 2013. The appellant made full admissions and voluntarily disclosed details of the offending which went beyond what the complainant told police in her interview on 9 April 2013.
The appellant entered fast‑track pleas of guilty at the earliest opportunity and was given the maximum discount of 25% under s 9AA of the Sentencing Act 1995 (WA). The appellant had no relevant convictions before or after the commission of the offences against the complainant. There was no finding that the offending was representative.
The sentencing judge found that the appellant was truly remorseful and ashamed and had accepted responsibility for his offending and the harm and pain he had caused the complainant.
The sentencing judge accepted the consensus of the psychiatric and psychological reports that the appellant was at a low risk of reoffending. Mr S Jobson, a psychologist who was also the facilitator of the SafeCare sex offender treatment programme undertaken by the appellant, provided a report dated 15 September 2013 which included an updated assessment of the appellant. He said:
[The appellant's] attendance [at] the two‑year sex offending treatment programme after revelation of his offences in about 2004 and the subsequent improvement he made to his thinking, attitudes and behaviour in life, appear to have resulted in significant levels of understanding and general change in his life (7).
Mr Jobson also noted that the appellant remained in a relationship with his wife who, while not condoning his offending, was still supportive of him. She detailed in a letter to the sentencing judge the many positive ways in which the appellant had changed. He also continued to have the support of his Church community with which he is strongly connected.
The complainant provided a victim impact statement that identified many direct and indirect consequences of the offending and its disclosure. The indirect consequences are those flowing to her from what she attributes to the impact of the offending and disclosure on her mother (alcohol abuse and remaining in an abusive relationship) and sister (a mental disorder).
This court can only intervene if the appellant establishes that the sentencing judge made an express or implied material error of fact or law. Manifest excess relies on the implication of error from the sentence itself. The sentence must be shown to be unreasonable or plainly unjust, it being outside the range of a sound sentencing discretion. Before determining the manifest excess ground, it is necessary to deal with matters relating to delay and voluntary cooperation.

Delay

An issue in the appeal was the relevance and weight to be given to the delay between the complainant's disclosure, and the appellant's admission, of the offences in 2003/2004 and the initiation of criminal action against the appellant some 9/10 years later. As the authorities disclose, that depends upon the cause of, reasons for, and the offender's conduct within the period of, the delay: Scook v The Queen (2008) 185 A Crim R 164; Bell v The Queen [2001] WASCA 40; GJT v The State of Western Australia [2011] WASCA 263 and Ward v The State of Western Australia (2011) 211 A Crim R 472.
This is not the usual case where sexual offending against a child has gone undetected for a long time, as in Bell and Sell v The Queen (1995) 15 WAR 240. The relevant delay in this case is between the detection (and admission) of the offences and the commencement of criminal proceedings. That delay has facilitated the appellant's rehabilitation and the positive finding that the appellant is at a low risk of reoffending, both of which are mitigatory. Ordinarily, rehabilitation requires insight into the wrongful nature of the conduct, remorse for that conduct and action taken to address the cause of the offending. The sentencing judge made positive findings in the appellant's favour on all of those matters. Further, advanced age is more likely to be a mitigatory factor where there has been a long delay and no offending during the period of the delay.
The appellant was also left for a very long time in a state of uncertain suspense as to whether at some future time he would be called to account for his conduct through the criminal justice system. Whether or not that is mitigatory depends upon whether there has been undue or unreasonable delay, not attributable to the conduct of the offender, which unreasonably extends the period of suspense. The delay in this case was not attributable to the appellant, he having made admissions when confronted with the complainant's claims. The delay was attributable to what was regarded to be in the best interests of the complainant. Where the fact and extent of the delay is reasonably necessary to protect the best interests of a child victim of sexual offending, it will not ordinarily be characterised as undue or unreasonable. The fact and extent of delay in this case is a consequence of the very young age of the victim of the offences. There has been no unreasonable extension of the period of suspense.

Voluntary cooperation

Another issue in the appeal is whether the sentencing judge erred in failing to give any discount for the appellant's voluntary disclosure of details of his offending which would not otherwise have come to light.
When a conviction follows upon a plea of guilty that is itself the result of a voluntary disclosure of guilt by the offender, a further element of leniency enters into the sentencing decision: Schriever v The State of Western Australia [2008] WASCA 133 [22]; H v The State of Western Australia (2006) 163 A Crim R 151 [13] ‑ [14]. A voluntary disclosure of an offence or aggravating circumstances of the offending which were otherwise unlikely to be discovered by investigating authorities attracts a significant discount: KS v The State of Western Australia [2011] WASCA 85; Ryan v The Queen (2001) 206 CLR 267.
In her electronically recorded interview with police on 9 April 2013 the complainant did not at any stage allege that the appellant had touched, kissed or licked her vagina, groin area or buttocks.
It is clear from a reading of the transcript as a whole that the complainant had very little memory of the appellant's actual sexual conduct. The respondent identifies the complainant's claims in relation to touching, kissing and licking as follows.
In relation to count 1 the complainant described the appellant taking her into his room, undressing her and kissing her down her chest and stomach.
In relation to count 3 the complainant said the appellant pushed her down on the bed and took off her clothes 'and it happened there, I guess the stuff that he would normally do … I don't remember what he always used to do, I think I blocked it out' (ts 14).
In relation to count 6 the complainant told police that the appellant 'started touching me and kind of pushing me to lay on the bed' and 'it' happened. She remembered the appellant kissing her and said that she thought it was 'on my body but nothing else besides that' (ts 15).
On the complainant's version of events relating to count 5, it is doubtful whether the appellant could have been charged with any offence. She said:
I remember like they had this big berry tree in the backyard and he made a swing on, um, one of the branches, so, um, I often would go and sit out there and then he would just come and sit with me and I remember him like kind of, um, sit there and touch me. I'm not sure like where but I know it wasn't, you know, like loving grandfatherly type of way (ts 3).
The interviewer returned to this issue later:
Q. And with the berry tree thing, you said that he would touch you and not in a sort of a grandfatherly way ‑ ‑
A. Yeah.
Q. What do you mean by that?
A. He'd just kind of, um, like touch my legs and that type of thing. I don't really remember where else but I know that he would like kind of touch my legs and that like (ts 11).
The issue of voluntary disclosure was not canvassed with the sentencing judge by any party and no specific mention was made or discount given by the sentencing judge for the appellant's voluntary disclosures.
The respondent submitted that the appellant's provision of the additional detail as to his offending was not such that a specific, quantified discount should have been applied to his sentence. I do not accept that submission which reflects a misunderstanding of the law.
Section 8(4) of the Sentencing Act 1995 (WA) provides that:
If because of a mitigating factor a court reduces the sentence it would otherwise have imposed on an offender, the court must state that fact in open court.
That statutory obligation does not require the identification of a specific quantified discount: Worthington v The State of Western Australia (2005) 152 A Crim R 585 [40] ‑ [41].
The failure of the parties to draw this matter to the sentencing judge's attention and the absence of any reference to it as a mitigating factor in the sentencing judge's reasons compel the conclusion that no discount was given for the appellant's voluntary disclosure of prejudicial information that would not otherwise have been available to investigating authorities. That failure is an error that enlivens this court's jurisdiction to intervene if it is satisfied that a different sentence should have been imposed: Criminal Appeals Act 2004 (WA), s 31(4)(a). I will address that question after dealing with the claim of manifest excess.

Manifest excess

In determining whether a sentence is unreasonable or plainly unjust (manifestly excessive), regard is had to the maximum sentence for the offence, the standards of sentencing customarily imposed, the place which the criminal conduct occupies on the scale of seriousness and the personal circumstances of the offender.
The maximum penalty for each offence of indecent dealing committed by the appellant is 10 years' imprisonment.
The role of sentences customarily imposed was explained in Brown v The State of Western Australia (2011) 207 A Crim R 533:
The range of sentences customarily imposed for comparable offences is only one of a number of relevant factors in the determination of whether a sentence is manifestly excessive. Thus, the range of sentences customarily imposed does not establish the range of a sound sentencing discretion … Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors [6].
The significance of the fact that the appellant bears the onus of demonstrating that the term of immediate imprisonment is manifestly excessive is discussed in Fogg v The State of Western Australia [2011] WASCA 11. The court said:
Reasonable people may legitimately differ as to what is an appropriate sentence within the sound discretionary range. In some (limited) circumstances such as in borderline cases, different types of sentence may be reasonably open. That can be so even though the actual decision-maker has to be positively satisfied [under s 39(3) of the Sentencing Act] that a lesser sentence is not appropriate.
In the absence of express error, the sentencing judge's latitude as to the choice of sentence is preserved from appellate intervention by the requirement that the outcome not be unreasonable or unjust. Thus the State is correct in its submission that the question for this court is whether the sentencing judge impliedly erred in concluding that a term of immediate imprisonment was the appropriate sentencing option [9] ‑ [10].
A review of the sentences customarily imposed for sexual offending against children confirms that ordinarily a sentence of immediate imprisonment is imposed. That is particularly the case where the offending includes offences of sexual penetration which attract a significantly higher maximum penalty. There are powerful public policy reasons for that. The primary sentencing considerations for offences of the kind committed by the appellant are punishment of the offender and deterrence, having regard to the need to protect vulnerable children. Matters personal to the offender are of less mitigatory weight than might otherwise be the case: Woods v The Queen (1994) 14 WAR 341, 345 ‑ 346; HFM v The State of Western Australia [2012] WASCA 217.

The comparable cases are those in which this court has reviewed offending at or towards the lower end of the spectrum of seriousness, including Ferry v The Queen [2003] WASCA 207 (and the cases discussed therein), Hodder v The State of Western Australia [2005] WASCA 257 (and the cases discussed therein); L v The State of Western Australia (2007) 176 A Crim R 135; P v The State of Western Australia (2007) 177 A Crim R 69; JD v The State of Western Australia [2008] WASCA 147; Schriever; LJP v The State of Western Australia [2010] WASCA 85; KS; GJT; and HFM.
The most closely comparable case is GJT in which there was a successful appeal against the imposition of a term of immediate imprisonment. The circumstances of the appellant's offending in this case are more serious than in GJT but there are more mitigating factors in this case.
There is a very unusual combination of mitigating factors in this case, in both nature and extent. The appellant: (1) made fast-track pleas of guilty; (2) stopped offending prior to the complainant's first disclosure of his conduct; (3) had no relevant prior or post offending convictions; (4) admitted to offending against the complainant shortly after she first disclosed his conduct to her mother; (5) informed his family and his Church of his offending; (6) undertook an intensive two‑year SafeCare sex offender treatment programme; (7) ceased consuming alcohol and remained abstinent in the lengthy period before being charged at a relatively advanced age; (8) demonstrated remorse, shame, insight and accepted responsibility for his offending; (9) is a changed man and at low

risk of reoffending; (10) regained the support of his wife and his Church; and (11) some 10 years after the offending when the complainant complained to police, made full admissions and voluntarily disclosed details of the offending which went well beyond what the complainant was able to remember.

Further, the existence of an express error in the reasons of the sentencing judge means that the sentencing judge's latitude as to the choice of sentence is not preserved from appellate intervention in the ways discussed in Fogg.
Although there is no need for personal deterrence, a term of imprisonment is necessary in order to achieve all of the recognised sentencing objectives including punishment, retribution, protection of vulnerable children and general deterrence. However, in the unusual circumstances of this case, I am satisfied that sentences of immediate imprisonment are not the only appropriate sentencing option. The terms of imprisonment imposed by the sentencing judge should be suspended.
The sentencing judge reflected the many mitigating factors in her order that all the sentences be served concurrently. I would not interfere with the order for concurrency even though the mitigating factors are now also reflected in the type of sentence. As a result of maintaining total concurrency I would not reduce the individual sentences imposed notwithstanding that the appellant has been in custody since 28 October 2013. However, I would reduce the otherwise appropriate period of suspension from 12 months to 7 months.
Accordingly, I would allow the appeal and order that the sentences of imprisonment imposed by the sentencing judge be suspended for 7 months. If during the suspension period the appellant commits an offence the statutory penalty for which includes imprisonment, he may be ordered to serve the terms of imprisonment that have been suspended.
PULLIN JA: I agree with McLure P.
BUSS JA: This is an appeal against sentence.
On 28 October 2013, the appellant was convicted, on his pleas of guilty at the first reasonable opportunity, of six counts of indecently dealing with a lineal relative under the age of 16 years, contrary to s 329(4) of the Criminal Code (WA) (the Code).

The offences related to the appellant's sexual abuse of his biological granddaughter. The offending began when the victim was aged about 5 and spanned a period of at least 18 months.
The sentencing judge, Braddock DCJ, imposed individual sentences of 15 months' immediate imprisonment on each of counts 1, 3 and 6 and individual sentences of 12 months' immediate imprisonment on each of the other counts. The sentences were ordered to be served concurrently. The total effective sentence was therefore 15 months' immediate imprisonment. A parole eligibility order was made.
I dissent from the orders proposed by McLure P (Pullin JA agreeing). I would dismiss the appeal. My reasons are as follows.

The facts and circumstances of the offending

The appellant is the victim's maternal grandfather. The appellant was born on 13 October 1941. He was about 59 or 60, and the victim was about 5 or 6, when the offending occurred. The appellant offended primarily while the victim was alone with him and under his care and supervision.
As to count 1, the appellant was looking after the victim at his home. He took her into a bedroom and undressed her. He undressed himself, lay on the bed with the victim, and kissed her chest and stomach. The appellant touched the victim's vagina with his hand. He then kissed her groin area and her buttocks. The appellant instructed the victim not to tell anyone about his conduct. He said 'you don't want Poppy to go to gaol do you?'.
As to count 2, on another occasion the appellant was again looking after the victim at his home. He asked the victim if she wanted to see something. He then masturbated in front of her and ejaculated into a towel.
As to count 3, on another occasion the victim was staying with the appellant at his home. He took the victim into his bedroom and pulled down her underpants. He then kissed and licked her vaginal and groin area.
As to count 4, on another occasion the victim was visiting the appellant at his home together with other members of the family. After hearing other children talk about 'balls', the victim went into the appellant's bedroom and asked him what it meant. The appellant took the victim's hand. He applied pressure so that her hand pressed on his testicles.
As to count 5, on another occasion the appellant was pushing the victim on a swing in the yard at his home. He turned the victim upside down and kissed her vagina and groin area through her underpants.
As to count 6, on another occasion the appellant was again looking after the victim at his home. He travelled with the victim to her home to collect some items. He took the victim into one of the bedrooms where he pushed her onto a bed and undressed her. The appellant kissed and licked the victim's vaginal and groin area.

The amended statement of agreed facts

An amended statement of agreed facts set out the facts and circumstances of the offending.
The statement also recounted:
The complainant is unable to recall specific details of the abuse but can recall that the accused would usually kiss her on her body. She recalls that he would breathe heavily and on one occasion when she asked him why he did that, he responded 'That is just what you do' (BP 8). The complainant states that the accused would almost always do the same thing to her, kissing her body and rubbing himself on her (BP 17). She said that he would tell her to ask him to stop if she wanted him to stop what he was doing, but she was too scared and timid to say anything. She recalls that he would ask her if she wanted him to stop what he was doing and she would answer 'No' because she was unsure what would happen if she replied 'yes' (BP 12).
In about 2003, when she was 6 or 7, the victim made a complaint to her mother. A police investigation commenced in November 2004. It did not proceed because of the traumatic effect it had on the victim. The investigation was reopened, at the victim's request, in April 2013. The circumstances of the initial complaint and the subsequent investigations, as recounted in the statement, are as follows:
The complainant did not feel afraid of the accused at the time as she was not able to grasp what was happening to her. At age 6 ‑ 7 years she began to realise that what the accused was doing to her was wrong.
The complainant disclosed these matters to her mother at age 7 following a 'danger awareness' talk presented by a Community Police Officer at … her primary school. The Police investigation followed approximately one year later in November 2004, however, the investigation was ultimately closed at this time due to the traumatic effect it had on the complainant.
The investigation was reopened in April 2013 at the request of the complainant who is now aged 17 years.

The appellant's efforts to address his offending behaviour

The appellant ceased offending against the victim of his own volition some months before the victim complained to her mother.
In 2004, after the victim complained, the appellant admitted his offending to members of his family. At that time the church which the appellant attended was made aware of his conduct. It ostracised him. In late 2005 the church 'reinstated' him.
Later in 2004, the appellant made a suicide attempt and was admitted to the psychiatric ward of a regional hospital. When he was discharged, the appellant referred himself to SafeCare, which provided treatment, counselling and support services to him and his family.
The appellant participated in a sex offender treatment programme with SafeCare over a two‑year period. The first year involved intensive group therapy and the second involved individual counselling and follow up. The appellant was not permitted to live in his family home during the two‑year period and he was not permitted to have unsupervised contact with children.
At the time of the offending the appellant's use of alcohol was 'problematic'. He was not, however, under the influence of alcohol while he sexually abused the victim. Since his completion of the SafeCare course the appellant has abstained from drinking alcohol.
The appellant and his wife separated after he admitted his offending. They reconciled when he was near the completion of the sex offender treatment programme. The appellant is estranged from his eldest daughter, who is the mother of the victim. The appellant and the victim are also estranged.
The appellant's wife and his church remain supportive of him.

The police investigation in April 2013 and the appellant's admissions

As I have mentioned, in April 2013 the police reopened the investigation at the victim's request. She was interviewed by the police on 9 April 2013.
On 12 June 2013, the police interviewed the appellant. He made full and frank admissions.
As I have mentioned, the amended statement of agreed facts noted that the victim was unable to recall specific details of the sexual abuse. This is scarcely surprising given her age at the time of the offending.
I note the following:
(a)The victim told the police '[h]e would always kiss me, like starting from my chest down to my, um, stomach and then he might unbutton my pants and then that's how my pants would end off' (victim's interview with police ts 9).
(b)As to count 1, the victim described the appellant taking her into his room, undressing her and kissing her on her chest and stomach. She said she recalled him being on top of her and kissing her, but said 'I don't really know if he put anything inside me' (victim's interview with police ts 13). As to this incident, the appellant recalled 'throwing her on the bed, um, and, um, touching her indecently' (VROI ts 16). He said that by 'indecently' he meant 'just holding her, ah, … her groin … and … eventually it got to actually kissing her on, on the, ah, in the groin area' (VROI 16, 17). Later, he added that he recalled 'kissing her on the ch-, the butt cheek' (VROI 74).
(c)As to count 3, the victim said she remembered 'another time it happened' when she slept at the appellant's house, 'but not what happened' (victim's interview ts 15). Earlier in the interview, the victim said 'I don't remember what he always used to do, I think I blocked it out … ' (victim's interview ts 14). As to this incident, the appellant told the police that the victim kept 'pressing' and 'prodding' him to offend against her and eventually he 'succumbed' (VROI 37). He was asked by the police whether the incident involved 'exactly the same thing, the licking?' (VROI 37). The appellant agreed (VROI 36, 37). The police put to him 'and you were licking her vagina area' (VROI 39) and, later, 'you've … pulled her pants down and licked her vagina' (VROI 75) to which the appellant agreed.
(d)As to count 5, the victim remembered sitting on the swing made by the appellant. She said 'he would just come and sit [on the swing] with me and … touch me' (victim's interview ts 3) but not in a 'loving grandfatherly type of way' (victim's interview ts 3, 11). As to this incident, the appellant said he did not touch the victim in any 'definite way' (VROI 54). He had turned her upside down when they were on the swing and he had kissed her on the 'groin' outside her clothing (VROI 54, 55).
(e)As to count 6, the victim told the police she remembered the appellant pushing her 'down on to the bed and [taking off her] clothes and it happened there' (victim's interview ts 14, 15). She recalled the appellant kissing her and said she thought it was 'on [her] body but nothing else besides that' (victim's interview ts 15). As to this incident, the appellant told the police 'I would say that's what … would've happened, whatever she had put down … I can't recollect … the details of it' (VROI 47, 79 ‑ 80).
It is apparent that, when confronted on 12 June 2013 with the victim's allegations of sexual abuse, the appellant gave the police a number of details of the offending which had not been provided (and could not have been provided) by the victim. For example, the victim did not allege in her interview with the police on 9 April 2013 that the appellant had touched, kissed or licked her vagina, groin area or buttocks. His cooperation was consistent with remorse and a willingness to facilitate the course of justice.

The expert reports before the sentencing judge

The expert reports before the sentencing judge comprised a report dated 15 September 2013 from a psychologist, Steve Jobson; a report dated 9 October 2013 from a psychologist, Erin Sweeny; a report dated 14 October 2013 from a consultant forensic psychiatrist, Dr Daniel de Klerk; and a pre‑sentence report.
Mr Jobson noted in his report:
(a)at the time of and for about 10 years before the offending, the appellant engaged in considerable binge drinking of alcohol, apparently as a means of 'self‑medication' or avoidance of unresolved emotional distress arising from sexual abuse he suffered as a child;
(b)Mr Jobson was a facilitator of the sex offender treatment programme which the appellant attended;
(c)the appellant was highly ashamed of, and remorseful about, his offending;
(d)the appellant's attendance at the sex offender treatment programme, and a subsequent improvement in his thinking, attitudes and behaviour, appear to have resulted in a significant level of understanding and a general change in his life;
(e)the appellant has abstained from alcohol since his completion of the sex offender treatment programme;
(f)psychometric testing did not reveal any personality pathology or traits;
(g)Mr Jobson hypothesised that the appellant's offending behaviour 'was contextual and linked to the presence of general dissatisfaction in life at the time, underpinned by his own sexual abuse as a child'; and
(h)the appellant is at a low risk of reoffending.
Ms Sweeny noted in her report:
(a)the appellant has 'good common sense, strong victim empathy and [has] made significant changes to his life' since the offending;
(b)the appellant has addressed 'relevant risk factors' and has openly acknowledged his behaviour to his church;
(c)the appellant said he was not under the influence of alcohol while he sexually abused the victim;
(d)the appellant said he had 'groomed' the victim: he encouraged her to sit on his lap so he could touch her, he changed his clothes with his bedroom door open so she could see him exposed, and his behaviour progressed from kissing her body, vagina and groin outside her clothing to kissing those areas underneath her clothing; and
(e)the appellant is at a low risk of reoffending.
Dr de Klerk noted in his report:
(a)The appellant has well‑treated mild depression.
(b)The appellant asserted that he had been sexually abused by his sister. The abuse commenced when he was about 7 and continued for about 12 months.
(c)The appellant gave Dr de Klerk this account of his offending against the victim:
In 2001 or 2002 (prior to the offending) 'I had been dwelling on this past business with my sister over the years, and what I did. It kept cropping up in my mind and every so often I dwelt on it. I think it was the catalyst for me to offend against my granddaughter. I think it drove me to isolate her in a way, and ask her mother if I could have her for the weekend. I don't know if it was in the back of my mind, but it [the offending] did transpire while she was [staying with him]. I think she was 5 or 6. That was part of the grooming, to take it to the next level. It was a matter of sitting her on my knee and when she asked me to pick her up I'd put my hand down near her groin. It went from there'.
'I also undressed in front of her. It was part of the grooming I suppose. Then I'd put her in the bath and wash her. While she was in the bath I would have a shower. Then it went from there to drying her on the bed and touching her, putting powder on her. Then kissing her, not straight away, but working down towards her groin. That was the same process as with my sister. There was no penetration at all'.
[The appellant] said 'one time she came around and asked me to do what I did with her before and I said no. I think there was someone else home. [His wife] was working nights in a restaurant at the time'.
(d)The appellant disclosed that he had sexually abused another girl who was a member of his wife's family. The incident occurred in the late 1990s. According to the appellant, 'we went swimming and I caressed her groin or touched her under the water'.
(e)The appellant did not currently have symptoms or signs of serious mental illness. Dr de Klerk considered that the appellant did not have any symptoms or signs of serious mental illness at the time of the offending.
(f)The appellant does not have any symptoms or signs of personality disorder or intellectual disability.
(g)The appellant is at a low risk of future sexual offending.

The appellant's prior criminal record

The appellant has a prior criminal record. However, the offences occurred in 1975 (driving under the influence) and 1980 (unlawfully on premises and breaking and entering a dwelling with intent). They were punished by fines. The prior convictions were not relevant for sentencing purposes in relation to the offences in question.

The victim impact statement

A victim impact statement was provided to the sentencing judge. In the statement the victim said:
(a)While the offending was occurring she suffered from insomnia. The victim thought about telling her mother what was happening but wondered about the consequences if she did tell her mother.
(b)After she disclosed the offending to her mother, the victim continued to experience sleeping difficulties. Also, she soothed herself by excessive and inappropriate food consumption.
(c)While the offending was occurring the victim became very timid and shy socially because she was harbouring 'a big secret'. She had difficulty in relating to other children.
(d)After she disclosed the offending, the victim experienced suicidal ideation for about three years. She often felt ill and would vomit.
(e)After she disclosed the offending, the victim's aunties and uncles ceased interacting with her family. The victim was emotionally hurt by this response. She did not have the opportunity to associate with her cousins. The dynamics of the victim's family life were adversely affected by her disclosure.
(f)The victim has suffered from panic attacks since she disclosed the offending. She has struggled with anxiety for many years. In 2012 she was diagnosed with generalised anxiety disorder. She took prescribed medication for six months. She consulted with a psychiatrist, once a fortnight, for 10 months.

The sentencing judge's sentencing remarks

The sentencing judge referred in her sentencing remarks to the seriousness of the appellant's offending and its impact on the victim.
Her Honour noted the appellant's pleas of guilty and discounted the individual sentences she would otherwise have imposed by 25% pursuant to s 9AA of the Sentencing Act 1995 (WA). She also noted the steps the appellant had taken to rehabilitate and reform himself.
The sentencing judge referred to the expert reports and the appellant's personal circumstances and antecedents. She accepted that the appellant was ashamed and remorseful, and was at a low risk of reoffending.
Her Honour concluded that the only appropriate sentencing disposition was a term of imprisonment to be served immediately. She explained that the offending was 'just too serious, particularly considering the effects on your young granddaughter who is still suffering from them' (ts 20).
The sentencing judge decided to order that all of the individual sentences be served concurrently because of the matters of mitigation, the appellant's age (72 years at the time of sentencing) 'and not to make it impossible for [the appellant] to return to meaningful life with [his] family in the conceivably near future' (ts 21).

The ground of appeal

The appellant relied on one ground of appeal. The ground as drafted was prolix.
On 18 December 2013, Mazza JA granted leave to appeal on the basis that the ground was intended to allege manifest excess in that the wrong type of sentences had been imposed.

The appellant's submissions

Counsel for the appellant submitted that the circumstances of 'the [appellant] in this [case] are so significantly mitigating that despite the seriousness of the offences, it was open to the [sentencing judge] to suspend the periods of imprisonment imposed'.
Although the sole ground of appeal was confined to an allegation of manifest excess, counsel for the appellant complained in his written submissions that her Honour had made an express error by failing to discount the appellant's sentences for his voluntary disclosure of details of his offending which would not otherwise have been ascertained by the law enforcement authorities.
The appellant did not challenge the length of the terms of imprisonment. His contention was that they should have been suspended.

The merits of the ground of appeal

A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. See Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).
In Western Australia, the statutory sentencing principles are set out in pt 2 of the Sentencing Act. By s 6(1), a sentence imposed on an offender must be commensurate with the seriousness of the offence. This is a fundamental sentencing principle. Section 6(2) provides that the seriousness of an offence must be determined by taking into account the statutory penalty for the offence (par (a)); the circumstances of the commission of the offence, including the vulnerability of any victim of the offence (par (b)); any aggravating factors (par (c)); and any mitigating factors (par (d)). By s 7(1), aggravating factors are those factors which, in the court's opinion, increase the culpability of the offender. Section 7(2) provides that an offence is not aggravated by the fact that the offender pleaded not guilty to it (par (a)); the offender has a criminal record (par (b)); or a previous sentence has not achieved the purpose for which it was imposed (par (c)). By s 8(1), mitigating factors are those factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished.
The maximum penalty for the offence of indecently dealing with a child who the offender knows is his or her lineal relative or a de facto child is, where the child is under the age of 16 years, imprisonment for 10 years. See s 329(4) read with s 329(10)(a) of the Code.
The primary sentencing considerations for offences of the kind in question are punishment of the offender, personal and general deterrence and the protection of vulnerable children. See Woods v The Queen (1994) 14 WAR 341, 345 ‑ 346 (Anderson J, Malcolm CJ & Seaman J agreeing); PP v The State of Western Australia [2004] WASCA 144 [14] (McLure J, Malcolm CJ & Murray J agreeing); M v The State of Western Australia [2006] WASCA 256 [30] (Wheeler JA, Steytler P & McLure JA agreeing).
It is well-established that 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. See MPD v The State of Western Australia [2008] WASCA 57 [58] (Miller JA, Wheeler & Buss JJA agreeing).
In Bell v The Queen [2001] WASCA 40, Anderson J (Kennedy J agreeing) emphasised the importance, in cases of intra‑familial sexual abuse of young children, of the distinction between 'cases in which all that appears is that the offender has not been convicted of any offence between the time of the offences and the time of sentencing and cases in which there are genuine claims to rehabilitation and remorse' [10]. See also Scook v The Queen [2008] WASCA 114; (2008) 185 A Crim R 164.
The voluntary disclosure of offences which may remain undetected, but for the offender's disclosure and cooperation with the police, can be a significant mitigating factor. See R v Ellis (1986) 6 NSWLR 603, 604 (Street CJ, Hunt & Allen JJ agreeing); Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 [11] ‑ [13] (McHugh J); Schriever v The State of Western Australia [2008] WASCA 133 [22] (Steytler P); Dunks v The State of Western Australia [2009] WASCA 82; (2009) 195 A Crim R 130 [28] (Buss JA, Owen & Miller JJA agreeing).
As I have mentioned, by s 6(2)(b) of the Sentencing Act, the seriousness of an offence must be determined by taking into account, amongst other things, the circumstances of the commission of the offence, including 'the vulnerability of any victim of the offence'.
At common law, a sentencing judge may take into account, in determining sentence, any detrimental, prejudicial or deleterious effect that may have been produced on the victim by the commission of the offence. See R v Webb [1971] VR 147, 151 (Winneke CJ, Pape & Lush JJ); Porter v The Queen [2008] NSWCCA 145 [54] (Johnson J, Bell JA & McCallum J agreeing). See also, concerning victim impact statements, s 24 to s 26 of the Sentencing Act.
In Director of Public Prosecutions v DJK [2003] VSCA 109, Vincent JA (Batt & Eames JJA agreeing) said in relation to the sentencing of offenders for the sexual abuse of children:
In consequence of an increasing awareness in our society of the incidence of the sexual abuse of children and much greater understanding of the potential destructive impact that it has had and is continuing to have on the lives of so many people in our community, this Court has, on a large number of occasions, emphasized two fundamentally important considerations … Sentences must involve recognition of the kind of personal damage that is occasioned by such behaviour and of the reality [that] the rehabilitation of the victim may be far more difficult to accomplish than that of the perpetrator … Through the sentences that they impose, the courts must, in order to protect future possible victims against such damage, endeavour to deter those who may be so inclined from engaging in such activities [26].
See also, generally, P v The State of Western Australia [2007] WASCA 220; (2007) 177 A Crim R 69 [39] (Miller JA, Owen & Wheeler JJA agreeing).
In GJT v The State of Western Australia [2011] WASCA 263; (2011) 214 A Crim R 272 [85] ‑ [119], I reviewed numerous cases which are, in some respects, comparable with the offending in the present case. It is unnecessary to reproduce the review. See also GJT itself.
A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles set out in div 1 of pt 2 of the Sentencing Act, that it is not appropriate to impose suspended imprisonment. See s 39(2) and s 39(3) of the Act.
The sentencing judge must be positively satisfied that it is not appropriate to suspend a term of imprisonment before the term can be ordered to be served immediately. In a borderline case, it may be reasonably open to impose different types of sentences. See Skipworth v The State of Western Australia [2008] WASCA 64 [11], [13] ‑ [14] (McLure JA); Fogg v The State of Western Australia [2011] WASCA 11 [9] (McLure P, Mazza J agreeing).
The discretion to suspend a term of imprisonment is not confined by considerations relating to rehabilitation and mercy. See Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18] (Gleeson CJ & Hayne J), [26] (Gaudron & Gummow JJ), [84] (Kirby J). The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation and mercy. See Dinsdale [86].
In the present case, there was a delay of about eight and a half years between the initial police investigation and the appellant being charged with the offences. The delay was not caused by dilatory or neglectful conduct by the police or the prosecuting authorities. It was caused, understandably, by the traumatic effect of the initial investigation on the victim, who was then aged about 7. In these circumstances, I am not persuaded that the delay was, of itself, mitigatory as a result of the appellant being left in 'uncertain suspense' as to whether he would, at some stage, be charged. The delay was, however, conducive to the emergence of mitigating factors, namely the positive response by the appellant to his offending and his apparent rehabilitation.
Defence counsel, in her oral submissions to the sentencing judge, emphasised the appellant's 'full and frank disclosures' to the police (ts 8). Defence counsel argued that the appellant had made 'very frank disclosures that did assist in the police investigation' (ts 8). The prosecutor did not deal with this issue in her submissions to her Honour.
The sentencing judge noted in her sentencing remarks that the appellant was 'truly sorry and remorseful', that he had accepted responsibility for the offending and that, since 2004, he had not denied the sexual abuse (ts 18). However, her Honour did not mention the appellant's voluntary disclosure to the police of a number of details of the offending which would not otherwise have been ascertained by them. I am satisfied, on my reading of the transcript of the sentencing hearing as a whole, that her Honour did not take the voluntary disclosure into account as a mitigating factor. This express error enlivens this court's jurisdiction to intervene by allowing the appeal and resentencing the appellant if, in its opinion, different sentences should have been imposed. See s 31(4)(a) of the Criminal Appeals Act 2004 (WA). However, generally for the reasons I give in the context of considering the sole ground of appeal which alleges manifest excess in relation to the type of sentences imposed, I am not of the opinion that different sentences should have been imposed by her Honour.
The appellant's offending was undoubtedly serious. In particular:
(a)The victim was very young when the sexual abuse occurred. She was aged 5 or 6.
(b)The offending involved six discrete episodes over a period of at least 18 months.
(c)At the time of the offending the appellant was aged 59 or 60. The appellant offended primarily while the victim was alone with him and under his care and supervision. The offending involved a gross breach of trust.
(d)The appellant admitted to Ms Sweeny and Dr de Klerk that he 'groomed' the victim. He encouraged her to sit on his lap so he had an opportunity to touch her. After bathing and drying her, he began 'kissing her, not straightaway, but working down towards her groin'. He changed clothes in his bedroom without shutting the door so the victim could see his exposed body.
(e)The offending involved planning and premeditation. The appellant sought opportunities to be alone with the victim. His offending was not impulsive or an isolated aberration.
(f)The appellant subjected the victim to several different types of sexual behaviour. He touched her indecently, he procured her to touch him indecently, he kissed and licked her vaginal area and he engaged in an act of masturbation to ejaculation in her presence.
(g)The appellant emotionally manipulated the victim, after he had committed count 1, by instructing her not to tell anyone about his conduct and by suggesting to her that she did not want to see him go to gaol.
(h)The appellant was not under the influence of alcohol or illicit drugs while he was sexually abusing the victim (although, if he had been, this would not of course have been mitigating). He was not suffering from any relevant mental illness or impairment.
(i)The victim impact statement reveals (and the sentencing judge found), in essence, that the victim was significantly damaged by the offending. The appellant deprived the victim of her innocence and a normal relationship with the appellant as her grandfather. The victim's familial relationships, and her social development with her peers, were adversely affected. She has struggled with anxiety for many years. In 2012 she was diagnosed with generalised anxiety disorder. The victim has not overcome the insidious consequences of the sexual abuse. She and her mother are estranged from the appellant.
(j)The appellant did not voluntarily disclose the offending before the victim complained to her mother.
The appellant's offending was, however, mitigated by a number of matters including:
(a)The appellant ceased his sexual abuse of the victim before she complained to her mother.
(b)After the victim complained to her mother, the appellant admitted his offending and sought professional assistance. He participated successfully in a sex offender treatment programme over a two‑year period. The appellant has benefited from the delay in his being prosecuted for the offences. He appears to have been rehabilitated.
(c)The appellant entered pleas of guilty at the first reasonable opportunity. He is ashamed and remorseful, and has accepted responsibility for his offending.
(d)The appellant cooperated with the police in 2013 when the police reopened the investigation at the victim's request. He made full and frank admissions. When confronted with the victim's allegations in 2013 he voluntarily gave the police a number of details of the offending which the victim had not provided and could not provide, and which the police would not otherwise have ascertained. He facilitated the course of justice.
(e)The appellant does not have a prior criminal record of any relevance. However, he admitted to Dr de Klerk that he had sexually interfered with another child in the late 1990s. This adversely affected the extent to which the appellant could be regarded as of prior good character apart from the offences in question.
(f)The appellant is of advanced years. He was aged 72 at the time of sentencing. It was not suggested, however, that he suffers from any relevant illness or disability.
The sentencing judge was obliged to impose sentences on the appellant that were commensurate with the seriousness of the offences. This involved an evaluation of the factors set out in s 6(2) of the Sentencing Act.
I am satisfied that it was not appropriate to suspend the individual terms of imprisonment.
In my opinion, the numerous matters of mitigation did not enable the primary sentencing considerations of appropriate punishment, general deterrence, the protection of vulnerable children and the denunciation of the appellant's conduct to be satisfied without immediate terms of imprisonment. The offending (notably, the features I have enumerated at [115] above) was too serious to permit any other sentencing disposition. The numerous matters of mitigation (notably, the features I have enumerated at [116] above) were appropriately recognised in the length of the individual sentences and by ordering all of the individual sentences to be served concurrently.
Each individual sentence was commensurate with the seriousness of the offence after taking into account the maximum penalty, the facts and circumstances of the offending, the general standards of sentencing for offences of this kind, the place which each offence occupied on the scale of seriousness of offences of this kind, the appellant's personal circumstances and antecedents and all other relevant sentencing factors, including the mitigating features. Similarly, the total effective sentence bears a proper relationship to the overall criminality involved in all of the offences, viewed together, and having regard to all relevant facts and circumstances and all relevant sentencing considerations, including the matters of mitigation.
The ground of appeal, as expanded in the appellant's written submissions, fails.

Conclusion

I would dismiss the appeal.